DR. EMMANUEL EWETAN UDUAGHAN v. CHIEF GREAT OVEDJE OGBORU & ORS. (2011)

DR. EMMANUEL EWETAN UDUAGHAN v. CHIEF GREAT OVEDJE OGBORU & ORS.

(2011)LCN/4805(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of September, 2011

CA/B/EPT/229/2011

RATIO

ROLE OF A RESPONDENT: POSITION OF THE LAW ON THE DUTY OF A RESPONDENT IN AN APPEAL; WHETHER THE FILING OF A CROSS-APPEAL WILL RELIEVE HIM OF HIS PRIMARY DUTY TO DEFEND THE JUDGMENT ON APPEAL

Generally, a respondent’s duty in an appeal, is primarily to defend the correctness of the judgment at the trial court which ended in his favour. See: Luke Okoro & Ors Vs, Hilary Egbuoh & Ors (2006) 6 SCNJ 258 at page 271. But be that as it may, a party is at liberty in the exercise of his right of appeal, to file an appeal against any part of the judgment, which is against him. Thus, even though the appellant herein, as the 1st respondent at the lower tribunal, whose judgment of 25th July, 2011 ended in his favour, having been dissatisfied with the resolution of issue I raised by the 1st respondent/appellant herein, relating to the competence of the petition and the jurisdiction of the lower tribunal to entertain it, eminently had the right to challenge by way of an appeal or cross-appeal, that part of the lower tribunal’s judgment in question. We are fortified in our humble but firm opinion, by the decision of the Supreme Court in The Minister of Petroleum and Mineral Resources & Anor Vs. Expo-shipping Line (Nig.) Ltd (2010) 4 SCNJ 155 at pages 171 -172 where Chukwuma Eneh, JSC, said: “The respondent is not allowed to appear on appeal to be remonstrating with any aspect or part of the decision except by way of respondents notice or by way of direct appeal against any part of the judgment ….In the circumstances, there is no ground of appeal for the respondent bellyaching over a point it has not challenged in the proper manner as I have stated herein. In that regard, therefore, it is most improper to be seen to attack any part of the judgment of the court below without more.” See also the decision of the apex court, more recently in Nigerian National Petroleum Corporation Vs. Clifco Nig. Ltd (2011) 4 SCNJ 107 at pages 128-129 where his Lordship, Rhodes -Vivour, JSC., reiterated the same point that: “In an appeal the respondent is to defend the appeal but where he is not satisfied with a finding of the trial court that he considers fundamental to the case or where he seeks a reversal of a finding he can only seek redress in the appeal court by filing and arguing a cross-appeal. The filing of a cross-appeal does not relieve the respondent of the task of defending the judgment on appeal; on all other findings therein that he is satisfied with.” PER RAPHAEL CHIKWE AGBO, J.C.A.

COMPILATION AND TRANSMISSION OF THE RECORDS OF APPEAL: WHOSE DUTY IS IT TO COMPILE AND TRANSMITT THE RECORDS OF APPEAL; WHETHER THE APPELLANT WILL BE PUNISHED FOR THE FAILURE OF THE SECRETARY OF THE LOWER TRIBUNAL TO COMPILE AND TRANSMIT THE RECORDS OF APPEAL

It is our view that it does not require any hard thinking to understand that the duty or responsibility of compiling and serving the records of appeal, by virtue of paragraph 9 of the Practice Directions 2011, fall squarely on the Secretary of the lower tribunal and certainly not on the appellant. We are clearly of the opinion and in agreement with the submission of Chief Olanipekun, SAN., for the appellant that, the default or inaction/omission of the Secretary of the lower tribunal for non-compliance with paragraph 9 of the Practice Directions, cannot in any way be attributed to the appellant. In other words, the Sin of the Secretary to the lower tribunal are his and the appellant cannot be punished for it. For it would be unfair and unconscionable to do so. See: NACB Vs. Adeagbo (2004) 14 NWLR (Pt 894) 551 and Haruna Vs. Modibo (2004)) 16 NWLR (Pt. 900) 487 at page 536. PER RAPHAEL CHIKWE AGBO, J.C.A.

ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL

The law is settled that issues should not be framed or formulated at large. An issue or question for determination in any appeal must arise or flow from the grounds of appeal. See FIRST BANK OF NIGERIA PLC V T.S.A, INDUSTRIES LIMITED (2010) 15 NWLR (pt.1216) 247 at 288, per ADEKEYE, JSC. PER RAPHAEL CHIKWE AGBO, J.C.A.

ACADEMIC/ MOOT ISSUES: WHETHER COURTS ARE NOT TO DEAL WITH ACADEMIC OR MOOT ISSUES

Courts do not deal with or determine academic or moot issues that will yield no benefit to a party even if judgment is given in that party’s favour. See PLATEAU STATE V ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 346 at 419; AJADI V. AJIBOLA (2004) 16 NWLR (Pt.898) 180; ADEWUNMI & ANOR V. ATTORNEY GENERAL, EKITI STATE (2002) 2 NWLR (Pt.751) 454 at 525; OLALE V. EKWELENDU (1989) 4 NWLR (pt.115) 344; KOSILE V FOLARIN (1989) 4 NWLR (Pt.115) 344; and the Supreme Court decision in SC.219/2007 – BIYU V. IBRAHIM (Unreported) delivered on the 28th day of April, 2008. PER RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

GEOROGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

DR. EMMANUEL EWETAN UDUAGHAN – Appellant(s)

AND

1. CHIEF GREAT OVEDJE OGBORU

2. DEMOCRATIC PEOPLES PARTY (DPP)

3. PEOPLES DEMOCRATIC PARTY (PDP)

4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The appellant and the 1st respondent, along with other candidates, had contested the Governorship Re-run election to the office of the Governor of Delta State as ordered by this Court on the 9th November, 2010. The said rerun took place on 6th January, 2011. At the end of the polls the 4th respondent the Independent National Electoral Commission (INEC) declared the appellant as the winner of the aforesaid election, having scored the highest number of lawful votes cast thereof.

The 1st respondent approached the Delta State Gubernatorial Election Tribunal, sitting at Asaba, vide a petition which he filed on 27th January, 2011, challenging the return of the appellant as the winner of the election of 6th January, 2011. The Election Tribunal aforesaid, hereinafter referred to as the lower tribunal, after hearing witnesses for the parties and the addresses of the respective counsel for the parties, came to the conclusion/decision that the petition was not proved and same was dismissed on 25th July, 2011.

The petitioners/(1st and 2nd respondents herein), appealed to this court against the dismissal of their petition by the lower tribunal in Appeal No.CA/B/EPT/227/2011 on 26th July, 2011.

The appellant, on his part, being dissatisfied with the resolution of Issue 1 which bordered on the jurisdiction of the lower tribunal to entertain the petition, which issue 1 was resolved against him, appealed against that part of the judgment of the lower tribunal dated 25th July, 2011 vide appeal no CA/B/EPT/229/2011 now under consideration.

The appellant had filed a Notice of Preliminary Objection at the lower tribunal on 1st March, 2011 challenging the jurisdiction of the lower tribunal to entertain the petition of the petitioners. Again, on 4th July, 2011, the appellant filed a Motion on Notice whereby, he challenged the competence of the petition and the jurisdiction of the lower tribunal to hear and determine the aforesaid petition, on the ground that the same had become spent, academic, hypothetical and disclosed no cause of action. The lower tribunal on 30th June, 2011 directed that the objection by the appellant against the competence of the petition would be taken at the end of the trial and would be considered in the judgment of the petition, for constraint of time. In the final address of learned Senior Counsel to the appellant at the lower tribunal, he addressed the issue of the competence of the petition and the jurisdiction of the lower tribunal to entertain it as at pages 585 – 611 of the Record of Appeal, Volume Two.

The lower tribunal, considered the question of the competence of the petition and its jurisdiction to entertain it under issue I formulated by the lower tribunal and at the end, resolved the said issue I against the appellant. There are four grounds of appeal filed by the appellant against the resolution of the said issue I against him, by the lower tribunal. The four grounds of appeal as contained at pages 1064-1068 of the Record of Appeal, Volume Two, are to wit:

GROUND 1

“The lower Tribunal erred in law by assuming jurisdiction over and adjudicating on the petition presented before it, when the tenure relevant to the Governorship Election being challenged has elapsed.

PARTICULARS OF ERROR

i. The tenure of the appellant as Governor of Delta State, particularly in relation to the election being challenged by the petitioners elapsed or ended on 29th May, 2011.

ii. There was/is no life issue before the lower tribunal over which it could properly assume jurisdiction and adjudicate on.

iii. The entire petition before the lower tribunal was abusive of the processes of court, as well as academic and moot.

GROUNDS 2

The lower tribunal misdirected itself in law and came to a perverse decision in its assumption of jurisdiction over the petition before it and also in resolving the 1st issue relating to its jurisdiction in favour of the petitioners.

PARTICALARS OF MISDIRECTION

i. By virtue of Section 180(2)(2A) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution, the term office of the appellant as the Governor of Delta State in relation to the petition which was/is the subject matter/cause of action before the lower tribunal ended on 29th May, 201I.

ii. The lower tribunal assumed jurisdiction and gave judgment in respect of issue 1 before it against the clear provision of the Constitution.

iii. The judgment of the lower tribunal in respect of issue 1 is unconstitutional.

GROUND 3

The lower tribunal erred in law and came to a perverse decision in its assumption of jurisdiction over the petition filed before it and resolving Issue 1 infavour of the petitioners, despite subsisting and binding decisions of superior court(s) on the subject.

PARTICULARS OF ERROR

i. In Suit No. FHC/ASB/CS/20/2011 between Dr. Emmanuel Ewetan Uduaghan (as plaintiff Vs. INEC, Chief Great Ovedie Ogboru, Democratic People Party, Barrister Ovie Augustine Omo-Agege, Action Congress of Nigeria (unreported), a Federal High Court, sitting at Asaba (per Buba J.) on 15th March, 201 I, resolved any lingering issue relating to the tenure of the Appellant in relation to the subject matter of the petition before the lower tribunal, by concluding/holding that the tenure ended on 29th May, 2011.

ii. In the said judgment, the court also held that by virtue of Section 180(2) (2A) of the Constitution the said tenure elapsed on 29th May, 2011.

iii. The said judgment was brought to the attention of the lower tribunal

iv. The petitioners before the lower tribunal, as well as the Appellant were parties to the suit

v. By virtue of the doctrines of res jiudicata, as well as issue estoppel, both the Respondents and the Appellant are bound by the said judgment.

vi. In Suit No. FHC/ASB/CS/104/2011, Between Mr. Peter Nwaoboshi & Anor vs. INEC & 3 Ors (unreported), the Federal High Court, Asaba (Buba J.), on 20th July, 2011 declared that the 1st Petitioner/1st Respondent was not validity nominated and not qualified to contest the election, the subject matter of the petition before the lower tribunal

vii. The attention of the lower tribunal was equally drawn to the subsistence of this judgment.

viii. The judgment in the two cases decided by the Federal High Court in (i) and (vi) supra, are judgment in rem.

ix. The said judgment are to be enforced by the tribunal.

GROUNDS 4

The lower tribunal erred in law and breached the age-long doctrine of stare decisis in its failure to abide by and apply the binding decision of the Supreme Court in SC/219/2009, Between Alhaji Buda Manu Mutum Biyu vs. Alhaji Abdul-Azeez A. Ibrahim (unreported) decided on 28th April, 2008.

PARTICALARS OF ERROR

i. The said judgment at the Supreme Court unequivocally resolved a similar issue in respect of an elapsed tenure, in which the apex court held that the pursuit of the appeal was abusive of court process and would not serve any useful purpose.

ii. The lower tribunal deliberately refused to follow and be bound by the Supreme Court decision, which was cited and made available to it. ”

The appellant formulated a sole issue for determination, in his brief of argument filed on 1st September, 2011 as follows:

“Considering the facts and circumstances of this appeal, vis-a-vis the clear provision of Section 180 (2A) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and decisions of superior courts of record, whether the lower tribunal was not in grave error and acted without jurisdiction when it held that the 1st Respondent’s petition was/is related to a live issue/res and assumed jurisdiction over same (Grounds 1, 2, 3 and 4)”.

The 1st and 2nd respondents, in their final brief of argument filed on 6th September, 2011 adopted the sole issue formulated by the appellant, for determination. However, it is noteworthy that the 1st and 2nd respondents, in the aforesaid brief of argument, first raised a Preliminary Objection, to the effect that “this appeal is incompetent, having regard to the law on who should appeal and/or on the ground that the Appellant lacks the requisite locus to maintain this appeal”. Furthermore, the 1st and 2nd respondents on 16th September, 2011 filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Rules of this Court, 2011, contending that the appeal is incompetent and should be dismissed. There are six grounds of the Objection stated thereunder, namely:

“1. The decision appealed against was not against the Appellant/Respondent.

2. The Appellant filed his Notice of Appeal on 1st August, 2011.

3. The Record of Appeal is to be complied and transmitted to the Court of Appeal within 10 days of the filing of Notice of Appeal. See paragraph 9 of the Election tribunal and Court Practice Direction, 2011.

4. The Appellant compiled and transmitted the Records of Appeal/Proceedings on 25/08/2011.

5. The Record of Appeal was compiled and transmitted to this Honourable Court out of time.

6. There is no valid competent appeal before this Honourable Court”.

At the hearing of the appeal on 20th September, 2011; Professor M. Mbadugha, learned Counsel to the 1st and 2nd respondents, informed the court that the brief of argument settled for the 1st and 2nd respondents only covered ground 1 of their Preliminary Objection at paragraphs 2.2 to 2.9 thereof. And that in respect of grounds 3 – 6 of the Preliminary Objection, it was his contention that the Record of Appeal was not compiled and transmitted to this court, from the lower tribunal within 10 days of the receipt of the notice of appeal in accordance with paragraph 9 of the Election Tribunal and Court Practice Directions, 2011. He submitted that since the notice of appeal was filed by the appellant on 1st August, 2011 and the record of appeal was only transmitted to this Court on 25th August, 2011; the same was done out of time hence, there is no competent appeal and therefore same must be struck out. He referred to Engineering Enterprises of Nigerian Contractors Company Vs. Attorney General, Kaduna State (1985) 3 NWLR (Pt.11) 98.

Responding to the preliminary objection, Chief Wole Olanipekun, SAN, for the appellant, submitted that the authority of Engineering Enterprises of Nigerian Contractors Co. Vs. A.G. Kaduna State (supra) relied upon by Prof. Madugba, for the 1st and 2nd respondents was not relevant to the facts of this case, since the former dealt with the issue of an incomplete record of appeal and not transmission of record of appeal. Furthermore, learned Senior Counsel, submitted that paragraph 9 of the Practice Directions 2011, placed no obligation on the appellant to compile and transmit the records of appeal from the lower tribunal to this court. And that it was the duty and responsibility of the Secretary of the lower tribunal to so perform and not that of the appellant. He referred to the authorities and Haruna vs. Modibo (2004) 16 NWLR (Pt.900) 487 at Page 536, to the effect that an action or omission, on the part of a court official, should not be visited on a litigant.

Chief Olanipekun, SAN; furthermore submitted that there is nothing to show that the 1st and 2nd respondents suffered anything by the non-compilation and transmission of the records of appeal by the Secretary of the lower Tribunal to this court since there is no affidavit evidence by the 1st and 2nd respondents, saying what they so suffered.

In respect of ground 1 of the objection learned Senior Counsel, submitted that the same is covered by and argued at paragraphs 1.1 to 1.7 of the appellant’s brief of argument. He urged us to dismiss the preliminary objection.

On his pert, Mr. Adenipekun SAN, for the 3rd respondent, submitted that since the 1st and 2nd respondents, had filed their briefs of argument in this appeal, they have waived their right to complain and that in any event, the Practice Directions 2011, which serves as a guide to this court imposes no penalty for default or non-compliance with paragraph 9 thereof. He concluded by referring to Haruna vs. Modibo (supra) and urged the court to dismiss the preliminary objection.

Mr. Raji, learned Counsel to the 4th respondent adopted the submissions of Chief Olanipekun, SAN, and Mr. Adenipekun, SAN, for the appellant and 3rd respondents, respectively as his and urged us to dismiss the preliminary objection.

The contention of the 1st and 2nd respondents at paragraphs 2.2 to 2.9 of their briefs of argument, essentially is that since the judgment of the lower tribunal on 25th July, 2011 was not against the appellant but in his favour, he had no right to appeal against that judgment. He referred to the decision of this court in Ekunola Vs. CBN (2006) 14 NWLR (Pt. 1000) 292 at page 316. moreso, as the judgment and the order of the lower tribunal did not affect the appellant’s interest. He also relied on Okonkwo Vs. Mode (Nig) Ltd (2002) 14 NWLR (Pt.788) 588 at pages 600-601; Owena Bank Nig. Plc Vs. NSE Ltd (1997) 8 NWLR (Pt.515) 1. Finally, the 1st and 2nd respondents’ contention was that since the lower Tribunal’s judgment did not wrongfully deprive the appellant of any entitlement, he cannot appeal against that judgment. He referred to Mobil Producing Nigeria Unlimited Vs. Chief Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346 at pages 398-399 and urged us to hold that the appellant had no locus standi or right to maintain this appeal, which is incompetent and liable to be struck out.

In his Reply brief of argument to the 1st and 2nd respondents, Chief Wole Olainpekun at paragraphs 1.2 to 1.7 thereof, submitted that a party who is dissatisfied with any part of the decision of a lower court, has the right to appeal against such a decision. He referred to Form 3 in the Court of Appeal Rules and the Court Practice Directions, 2011 vis-a-vis Order 6 Rule 2 of the Rules of this Court, 2011 and that it is not only when a party is dissatisfied with the entire decision of a lower court, that he can appeal, but if the party is dissatisfied with any part of the lower court’s decision, he can appeal as of right, hence there are cases where there are appellants and cross appellants. He referred to Smithkline Becham Plc Vs. Farmex Ltd (2010) 1 NWLR (Pt. 1175) 285 at page 304: Agagu vs. Mimiko (2009) 7 NWLR (Pt.1140) 342. He therefore impressed it upon us to over-rule the preliminary objection.

We are fortified in our humble but firm opinion, by the decision of the Supreme Court in The Minister of Petroleum and Mineral Resources & Anor Vs. Expo-shipping Line (Nig.) Ltd (2010) 4 SCNJ 155 at pages 171 -172 where Chukwuma Eneh, JSC, said:

“The respondent is not allowed to appear on appeal to be remonstrating with any aspect or part of the decision except by way of respondents notice or by way of direct appeal against any part of the judgment ….In the circumstances, there is no ground of appeal for the respondent bellyaching over a point it has not challenged in the proper manner as I have stated herein. In that regard, therefore, it is most improper to be seen to attack any part of the judgment of the court below without more.”

See also the decision of the apex court, more recently in Nigerian National Petroleum Corporation Vs. Clifco Nig. Ltd (2011) 4 SCNJ 107 at pages 128-129 where his Lordship, Rhodes -Vivour, JSC., reiterated the same point that:

“In an appeal the respondent is to defend the appeal but where he is not satisfied with a finding of the trial court that he considers fundamental to the case or where he seeks a reversal of a finding he can only seek redress in the appeal court by filing and arguing a cross-appeal. The filing of a cross-appeal does not relieve the respondent of the task of defending the judgment on appeal; on all other findings therein that he is satisfied with.”

We think that is instructive enough. Therefore, in the circumstances of this case, where the appellant had from the onset complained against the competence of the petition and the jurisdiction of the lower tribunal to entertain it and the latter decided that issue against him, he was on a very strong wicket, to challenge that part of the judgment of the lower tribunal. And that was what he exactly did by way of this appeal. We therefore fail to see any merit in ground I of the notice of preliminary objection by the 1st and 2nd respondents. It is hereby dismissed.

The next grouch of the 1st and 2nd respondents against the appellant’s appeal is that the record of appeal was not timeously compiled and transmitted to this court, therefore according to them, the non-compliance with paragraph 9 of the Practice Directions of 2011, damnified the appeal and rendered it incompetent.

It is not disputed that the appellant filed this appeal on 1st August, 2011 whilst the records of appeal was transmitted to this court from the lower tribunal on 25th August, 2011 a period clearly outside the 10 days prescribed by paragraph 9 of the Practice Directions, 2011.

Now, whose duty is it to compile and transmit the records of appeal from the lower tribunal to this court? Paragraph 9 of the Practice Directions 2011 provides the answer when it says:

“9. The Secretary shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings.”

In sum, the preliminary objection against this appeal, at the instance of the 1st and 2nd respondents is bereft of merit. Same is overruled and hereby dismissed accordingly.

Now to the main appeal. At the hearing of the appeal on 20th September, 2011, both learned counsel for the Appellant and the 1st and 2nd Respondents, adopted their respective Briefs of Argument. However, the 3rd and 4th Respondents did not file Briefs of Argument in respect of the appeal.

The Appellant distilled one issue from his four grounds of appeal. The issue referred to by the Appellant, as arising for determination in this appeal has been reproduced earlier in this Judgment.

The 1st and 2nd Respondents adopted the sole issue formulated by the Appellant as the issue arising for determination. In his brief of argument, Chief Wole Olanipekun (SAN), for the Appellant defined locus standi as:

“A legal capacity to institute an action”.

On locus standi, the Appellant referred the court to the cases of SENATOR ADESANYA V. THE PRESIDENT OF NIGERTA (1981) 5.SC 112 at 140 and FAWEHINMI v AKILU (1987) 18 NSCC (pt.2) 126s at 1269 and contended that since the Appellant was adjudged to have been invalidly nominated for the disputed election by BUBA, J. of the Federal High Court Asaba Division, in SUIT NO. FHC/ASB/CS/104/2011 between MR. PETER NWAOBOSHI & ANOR V. INEC & 3 ORS. (Unreported), judgment delivered on the 20th day of July, 2011 the 1st and 2nd Respondents had no locus standi to present their petition pursuant to Section 137 (1) (a) & (b) of the Electoral Act, 2010 (as amended).

In the 1st and 2nd Respondents’ brief, Mogbeyi Sagay (SAN), contended that the issue of locus standi was not covered by any of the grounds of appeal and it is a non-issue which ought to be struck out. On this point, reference was made to the cases of ACB PLC V. EMEDO (2003) 16 NWLR (Pt.602) 261 and OKEKE V ORUH (1999) 6 NWLR (Pt.606) 175

We have examined the Appellant’s grounds of appeal, which grounds have been fully reproduced in this judgment. The Appellant’s grounds of appeal do not cover a complaint on the locus standi of the 1st and 2nd Respondents to present their election petition. The law is settled that issues should not be framed or formulated at large. An issue or question for determination in any appeal must arise or flow from the grounds of appeal. See FIRST BANK OF NIGERIA PLC V T.S.A, INDUSTRIES LIMITED (2010) 15 NWLR (pt.1216) 247 at 288, per ADEKEYE, JSC.

The issue of locus standi, having not been distilled from any of the grounds filed by the Appellant, goes to no issue.

On the question of whether at the time the Tribunal delivered its judgment the petition of the 1st and 2nd Respondents had become merely academic, the learned counsel for the Appellant argued that the tenure of the Appellant, as the Governor of Delta State had lapsed. The learned counsel submitted that pursuant to the re-run election, the Appellant was sworn in as the Governor of Delta State and his tenure ended on the 29th day of May, 2011.

The Appellant queried the jurisdiction of the Tribunal to adjudicate upon the 1st and 2nd Respondents’ petition when “the Res has been extinguished and the cause of action abated”. The Appellant’s learned counsel further argued that “the lower Tribunal was in grave error of law, when it held that the decisions in AMAECHI V. INEC (2007) 18 NWLR (Pt. 1065) 42 and ADEOGUN V. FASHOGBON (2008) 17 NWLR (Pt. 1115) 149 at 173 – 174 are apt and relevant in the determination of the Petition”. The learned counsel for the Appellant finally urged the court to allow the appeal and strike out the petition of the 1st and 2nd Respondents.

The 1st and 2nd Respondents, on the other hand, contended that their Petition was presented to the Tribunal on the 26th day of January, 2011 in which they claimed sundry reliefs, including a relief that “by the lawful votes cast at the Delta State Gubernatorial election held on Thursday the 6th of January 2011 the 1st Petitioner Chief Great Ovedje Ogboru ought to have been returned as the duly elected Governor of Delta State having polled the highest number of lawful votes at the election and at least a quarter of the votes cast on two-thirds of the Local Government Areas in the State…”

The 1st and 2nd Respondents strongly contended that their petition had not become academic merely “by reason of the 4th Respondent fixing April 16 2011, or April 26th, 2011 as the date for another round of Governorship elections all over the country, including Delta State…” The 1st and 2nd Respondents argued that until the final determination of their petition, “the Appellant cannot say he has a tenure.” They argued further that for a res to be destroyed, that res must be in existence, as a non-existing thing cannot be destroyed. The res here, is a 4 year term of the office of the Governor of Delta State of Nigeria, which ought to commence in April 2007 and expire in April 2011. For this tenure to be in existence, the 4th Respondent ought to have conducted an election known to law for the office. The 1st and 2nd Respondents contended that the cases of AMAECHI V. INEC (Supra) and ADEOGUN V. FASHOGBON (Supra) were rightly applied by the Tribunal. They submitted strongly, after posing some “hypothetical questions”, that if the 1st Respondent had been sworn in on the 10th day of January, 2011 the 4th Respondent would not have conducted any election on the 26th day of April, 2011 and that the res would not have been spent on the 29th day of May, 2011.

The 1st and 2nd Respondents made other submissions, referred and relied on many legal authorities and finally urged the court to dismiss the appeal and affirm the judgment of the lower Tribunal.

We have read the illuminating submissions of the learned counsel for the parties. We have also read the legal authorities cited by the learned counsel.

The facts of this appeal are simple and straightforward. The Petition, subject matter of this appeal, was filed by the 1st and 2nd Respondents challenging the election of the Appellant in the re-run election to the office of Governor of Delta State conducted on the 6th day of January, 2011. The result of that election was declared or announced on the 7th day of January 2011 and the Appellant was subsequently sworn in as the Governor of Delta State. As earlier stated, the Appellant was elected in 2007 and sworn in as Governor of Delta State on the 9th day of May, 2011. However, the Appellant’s election in 2007 was nullified by this court on the 9th day of November, 2010 in Appeal No.CA/B/EPT/38/2010 between CHIEF GREAT OVEDJE OGBORU & ANOR V. DR. EMMANUEL EWETAN UDUAGHAN & ORS. In due deference to the judgment of this court, the Independent National Electoral Commission (INEC) conducted the said rerun election.

By Section 180 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the tenure of office of a Governor of a State in Nigeria is 4 (four) years. In the computation of this tenure, in the case of a Governor who has won a re-run election, as in the case of the Appellant, subsection (2A) of Section 180 of the Constitution, as amended, provides thus:

“In the determination of the four year term, where a re-run election has taken place and the person earlier sworn wins the re-run, the time spent in office before the date the election was annulled shall be taken into account.”

The Appellant has argued that having taken into account the period he (the Appellant) spent in office as Governor of Delta State before his election was annulled and a re-run was conducted, the 4th Respondent – INEC had “fixed April 16, 2011 as a date for another round of Governorship elections all over the country, including Delta State” and that the 1st and 2nd Respondents had signified intention to participate in the said election. (See page 65, Vol.1 of the Record of Appeal). The 1st and 2nd Respondents, however, claimed that there was nothing on record to show that election was conducted in April, 2011 for the office of Governor of Delta State. It is common knowledge that INEC conducted gubernatorial election in April 2011 in Delta State. In this regard this court takes judicial notice of APPEAL NO. CA/B/EPT/238M/2011: – INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) V CHIEF GREAT OVEDJE OGBORU & 3 ORS which came up before us on the 20th day of September, 2011 when this appeal was heard. Parties were the same in the instant appeal and all the parties were represented. We looked into that case before adjourning same sine die. From the processes in the said appeal, it was clear to us that the Appellant and the 1st, 2nd and 3rd Respondents indeed took part in the gubernatorial election in April, 2011 and they are already contending petitions pending in the Governorship Election Tribunal, Asaba, Delta State.

It is our view that the Appellant’s tenure in office as Governor of Delta State, after the re-run election of 6th January, 2011 ended or expired legally as his election was never declared void or invalid by any competent Tribunal or Court. The law was on the side of the Appellant until his tenure lapsed. In dealing with this appeal, it is important to always bear in mind that the 1st and 2nd Respondents’ petition is in respect of a re-run election ordered by this court. It is not in respect of an election proper, and it must be so distinguished. Assuming that this court goes into the merits of the petition, is it legally and practically possible to order yet another re-run election in respect of the said re-run election? Alternatively, is it legally possible and or practicable to declare the 1st Respondent winner of the re-run election when the tenure had lapsed, another election conducted in April, 2011 and a winner declared and sworn-in? We are of the view that the main election of 16th April, 2011 wherein the Appellant, the 1st, 2nd and 3rd Respondents participated has laid to rest the usefulness or essence of the re-run election which resulted in the Appellant being sworn in to continue and complete his four year term. Indeed the res in this appeal has been extinguished and the cause of action abated as herein explained. Whichever angle it is viewed, adopting any of the possible outcome of the 1st and 2nd Respondents’ petition, this court would be undertaking a futile academic exercise. Courts do not deal with or determine academic or moot issues that will yield no benefit to a party even if judgment is given in that party’s favour. See

PLATEAU STATE V ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 346 at 419;

AJADI V. AJIBOLA (2004) 16 NWLR (Pt.898) 180;

ADEWUNMI & ANOR V. ATTORNEY GENERAL, EKITI STATE (2002) 2 NWLR (Pt.751) 454 at 525;

OLALE V. EKWELENDU (1989) 4 NWLR (pt.115) 344; KOSILE V FOLARIN (1989) 4 NWLR (Pt.115) 344; and the Supreme Court decision in SC.219/2007 – BIYU V. IBRAHIM (Unreported) delivered on the 28th day of April, 2008.

At the time the Tribunal delivered its judgment on the 25th day of July, 2011 there was no longer any live issue in 1st and 2nd Respondents petition. The questions in the said petition had become academic. The Tribunal, therefore, acted without jurisdiction as the petition was then liable to be struck out.

In conclusion, this appeal succeeds and it is hereby allowed. The petition filed by the lst and 2nd Respondents in the Tribunal is hereby struck out.

There is no order as to costs.

GEORGE OLADEINDE SHOREMI, J.C.A.: I agree

CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.: I agree

TOM SHAIBU YAKUBU, J.C.A.: I agree.

MOORE A. A. ADEMEIN, J.C.A.: I agree.

Appearances

Chief Wole Olanipekun, SAN, Dr. Alex A. Izinyon, SAN, Ken E. Mozia, SAN V. O. Grant, Esq., Ekemejero Ohwovoriole, Esq., Dr. Dapo Olanipekun, Ayo Adesanmi, Esq., Olalekan Lasaki, Esq.For Appellant

AND

Mogbeyi Sagay, SAN, Nichols Ichekor Esq., Robert Emukpoeruo, Esq., Prof. Mccarthy Mbadugha Uzo Onwukwe, Esq.

Adebayo Adenipekun, SAN, FCI, ARB., Dr. Onyechi Ikpeazu OON, SAN and Arthur Obi Okafor, SANFor Respondent