ERIC UCHEGBU & ANOR v. PASTOR PETER MGBEAHUROIKE & ORS
(2017)LCN/9463(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of February, 2017
CA/OW/134/2014
RATIO
COURT: JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED IN COURT
It is to be noted that a preliminary objection against an appeal as in the instant case is essentially challenging the jurisdiction of this Court to hear the appeal. An issue of jurisdiction has been held in plethora of cases; can be raised at any stage during the Court proceedings or on appeal at the Supreme Court, with or without leave of the Court being sought and obtained. Also, the Courts are empowered to suo motu raise an issue of jurisdiction, where the parties fails to do so. See Olutola V. Unilorin (2004) 18 NWLR (Pt. 905) 416; Adesola V. Abidoye (1999) 14 NWLR (Pt. 637) 28; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; Owners, M/V Gongola Hope V. S. C. (Nig.) Ltd. & Anor. (2007) 15 NWLR (Pt. 1056) 189, (2007) 6 S. C. (Part 11) 58; and Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: EFFECT OF UNCHALLENGED AFFIDAVIT BY WAY OF COUNTER-AFFIDAVIT
“It is now elementary in law that where facts which have been alluded to in an affidavit are not controverted by way of counter-affidavit, the facts therein are deemed as admitted. See the cases of Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545; Okorie V. Ejiofor (1996) 3 NWLR (Pt. 343) 90 and Dokubo-Asari V. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320. Also, it is now well established that where facts have been admitted they are deemed to have been proved in law. See cases of Ehinlanwo V. Oke (2008) 6 – 7 S. C. (Pt. 11) 123; (2008) 16 NWLR (Pt. 1113) 357; and Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
ACTION: MEANING OF ACADEMIC EXERCISE AND WHEN DOES AN ACTION BECOME ACADEMIC
The term academic exercise or academic question has been defined by the Supreme Court in the case of Agbakoba V. I. N. E. C. (2008) 18 NWLR (Pt. 1119) 489, wherein His Lordship, Chukwuma Eneh, JSC enunciated as follows:
The Black Law Dictionary, 5th Edition at page 11 has defined academic question as an issue which does not require answer or adjudication by Court, because it is not necessary to case; hypothetical or moot question.
An action becomes hypothetical or raise mere academic point when there is no live matter in it to be adjudicate upon or when its determination holds no practical or tangible value for making a pronouncement upon it, it is otherwise an exercise in futility. When an issue in an appeal has become defunct it does not require to be answered or controvert about and leads to making bare legal postulations which the Court should not indulge in; it is like the salt that lost its seasoning. And like the salt in that state it has no practical value to anybody and so also, a suit in that state has none particularly and practically to the plaintiff.”
Also, in the case of Plateau State V. Attorney -General of the Federation (2006) 3 NWLR (Pt. 967) 346; LPELR – 2921, page 76 – 77, the Supreme Court, per Niki Tobi, J.S.C. (of blessed memory) defined an academic suit thus:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it not related to practical situations of human nature and humanity.
See also Odedo V. I. N. E. C. (2008) 17 NWLR (Pt. 1117) 554; Efet V. I. N. E. C. (2009) LPELR – 4074; Yusuf V. Toluhi (2008) 14 NWLR (Pt. 1107) 237; (2008) 6 – 7 S.C. (Pt. 1) 164; Bamaiyi V. Attorney-General of the Federation (2001) 12 NWLR (Pt. 727) 468. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. ERIC UCHEGBU
2. MR. ADOLPHUS NLEMCHI – Appellant(s)
AND
1. PASTOR PETER MGBEAHUROIKE
(For himself and as representing Nwaegwi?s Family, Ukwuorji, Umuahakwa Nneano Agbaja Autonomous Community)
2. GOVERNOR IMO STATE
3. ATTORNEY-GENERAL, IMO STATE
4. HONOURABLE COMMISSIONER, LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
5. CHAIRMAN, EHIME MBANO LOCAL GOVERNMENT – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): The instant appeal is against the decision of the High Court of Imo State, sitting at Owerri (hereinafter referred to as the ?lower Court?), which was delivered on the 17th day of March, 2014 by Hon. Justice F. I. Duroha-Igwe, J.
The suit was commenced by the claimant/respondent (hereinafter referred to as the ?respondent?) vide a writ of summons and statement of claim dated the 27th day of March, 2012 but was filed on the 28th day of March, 2012 seeking six (6) reliefs against the appellants/defendants 5th ? 7th (hereinafter referred to as ?the appellants?) as follows:
?(a) A declaration that under the native law, custom and tradition of Nne-ano Agbaja Autonomous Community, Ehime Mbano Local Government Area, Imo State the family unit to produce an Eze-Elect for Umuchakwa is Nwaegwi?s family.
(b) A declaration that the claimant who is now the head of Nnaegwi family unit, Umuchakwa is the duly identified, selected, appointed and installed Eze of Nne-ano Agbaja Autonomous Community.
(c) A declaration of the Honourable
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Court that the 5th defendant, Eric Uchegbu, is not entitled to be appointed or conferred with the title of the Eze or Traditional Ruler of Nne-ano Agbaja Autonomous Community.
(d) Injunction restraining the 7th Defendant, from parading or holding out himself as the President-General of Nne-ano Agbaja Autonomous Community.
(e) Injunction restraining the 5th to 7th defendants by themselves agents or privies from parading or holding out, presenting or submitting the 5th defendant as the Eze or Traditional Ruler of Nne-ano Agbaja Autonomour Community, Ehime Mbano Local Government Area, Imo State to 1st to 4th Defendant or from taking any further steps in respect of the Ezeship stool contrary to the interest and inalienable right of the Claimant.
(f) Injunction restraining the 1st to 4th defendants from according any recognition, issuing any certificate of recognition and staff of office to the 5th defendant as the Eze or Traditional Ruler of Nne-ano Agbaja Autonomous Community.?
The 1st to 4th defendants/respondents (hereinafter referred to as ?the 2nd set of respondents?) neither entered appearance nor filed any process in
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reply to the respondent?s statement of claim. On the other hand, the appellants filed a preliminary objection dated and filed on the 7th day of May, 2012, seeking for the order of the lower Court ?to strike out or dismiss this Suit for being incompetent?, on the following grounds:
?(a) The Suit does not raise any reasonable Case (sic) of action .
(b) By the provisions of Section 28 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999, no cause of action has arisen.
(c) The Suit is an abuse of Court Process.
(d) The Honourable Court lacks the jurisdiction to determine the Suit.?
In response to the preliminary objection, the respondents filed a counter-affidavit and written address in opposition to the said preliminary objection on the 14th day of May, 2012. In accordance with the rules of the lower Court, the appellants filed their reply on point of law in respect of the preliminary objection on the 1st day of June, 2012. At the conclusion of the hearing of the appellant?s application in question, the lower Court delivered its ruling on the 17th day of March, 2014 dismissing the application for lacking merit.
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Expectedly, the appellants were not satisfied with the lower Court?s ruling and thus, appealed against the same vide their notice of appeal dated and filed on the 21st day of March, 2014. The said notice of appeal contained only a single ground of appeal which is reproduced without its particulars as follows:
?ERROR IN LAW:
The Learned Trial Judge erred in law when she held that the Claimant?s Statement of Claim discloses a cause of action and dismissed the preliminary objection challenging the Court?s jurisdiction to entertain the suit.?
In accordance with the rules of this Court, the parties have filed and served their respective briefs of argument. The appellants? brief of argument is dated and filed on the 22nd day of April, 2014. The said appellants? brief of argument was prepared by A. K. Madu, Esq.
?On the other side of the divide, the respondent?s brief of argument was filed on the 23rd day of June, 2014 by J. C. Uwandu, Esq. In addition to this, the respondent raised a notice of preliminary objection seeking for the order of this Court dismissing
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this appeal for lack of jurisdiction in that the appeal is an academic exercise. The said preliminary objection was equally filed on the 23rd day of June, 2014. The respondent?s brief was subsequently amended and filed on the 19th day of November 2015 but was by the order of this Court deemed as properly filed and served on the 21st day of January, 2016. In reply to the respondent?s preliminary objection, the appellants filed their reply brief on 25th day of January, 2016.
It is to be noted that the 2nd set of the respondents neither entered appearance nor filed any process in this suit. Thus, no reference would be made to them and they would be bound by the outcome of this appeal. Also, it is to be noted that the 3rd appellant/7th defendant name was struck from this appeal by the order of this Court made on the 20th day of April, 2016.
?In accordance with the established principle of this Court, the respondent?s preliminary objection would be considered and determined first. The argument in support of the respondents? preliminary objection was incorporated in the respondent?s amended brief of argument. The grounds upon
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which the preliminary objection was brought as stated in the amended respondent?s brief are as follow:
?The 1st Appellant/Respondent on 31/3/2014 which was during the pendency of this Suit and after lodging this Appeal on 21/3/2014, submitted himself to the 3rd to 5th Respondents, whom during the Ezeship recognition and presentation of staff of office ceremony held on 31/3/2014 at Sam Mbakwe Expanded Executive Council Chambers Government House Owerri, Imo State, purportedly Recognized and granted him, Certificate of Recognition and staff of office as the Traditional Ruler of Nneano Agbaja Autonomous Community, Ehime Mbano Local Government Area, Imo State contrary to the Appellants contention in their preliminary objection and this Appeal that the 1st Appellant had not been recognized and no cause of action had arisen.
(ii) The Appellants by the said recognition has rendered this Appeal nugatory, hypothetical, advisory and an Academic exercise.
(iii) The Courts including this Honourable Court does not give advisory opinion on matters.
(iv) This Honourable Court has no jurisdiction to hear this Appeal.?
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In determination of this preliminary objection, the respondents formulated a sole issue. The issue is as follow:
?WHETHER THIS HONOURABLE COURT HAS THE JURISDICTION TO ENTERTAIN THIS APPEAL.?
It is instructive to observe herein that the notice of preliminary objection is supported by six (6) paragraphs affidavit and four(4) paragraphs further affidavits together with five(5) exhibits.
The learned counsel for the 1st respondent contended that this Court lacks jurisdiction to entertain this appeal same having been rendered an academic exercise. He further contended that a cursory look at Paragraphs ?3(a) to (i) and 4(i) to (iv) of the Affidavit in Support of this motion shows serious fundamental defects in the appeal of the Appellants.? He further contended that the appeal clearly show or only raises an hypothetical question or an academic exercise in that it is predicated on an event that had already taken place. Thus, he submitted that the appeal is clearly an academic exercise. The learned respondents? counsel argued that these defects are fatal and has robbed this Court of the jurisdiction to entertain this appeal as presently
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constituted. He referred this Court to Paragraphs 3(K) and (L), and 4(i) and 4(ii) of the affidavit in support of this objection and all the exhibits attached in support thereof.
The learned counsel further argued that all these above factors has indicated features which has consequently denied this Court the jurisdiction to entertain this appeal. He relied on the cases of Okoro V. Egbuoh (2006) NWLR (Pt. 1001) OFF 1; D. E. N. R. Ltd. V. Trans International Bank Ltd. (2008) 18 NWLR (Pt. 1119) 388; Odofin V. Agu (1992) 2 NWLR (Pt. 229) 350; and Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
The learned counsel for the 1st respondent therefore submitted that this ?Appeal having been brought and predicated on an academic exercise makes the Appeal to amount and constitute an abuse of process of Court in that it is an interference with the due administration of justice?. He relied on the cases of Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156; Uzoho V. N. C. P. (2007) 10 NWLR (Pt. 1042) 320; and Dr. Andy Uba V. Etiaba (2010) 10 NWLR (Pt. 1202) 343.
?In reply, the learned counsel for the appellants contended that this preliminary objection is
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incompetent because it was not predicated upon any fact on record. He further contended that the grounds upon which the objection was brought is novel, thus, requiring the leave of this Court before it can be validly raised. He referred this Court to the case of Yakubu V. Chief of Naval Staff (2004) 1 NWLR (Pt. 853) 94 @ 113.
Furthermore, the learned counsel for the appellants stated that if this Court is inclined to entertain this objection, he submitted that the respondents have failed to establish with credible evidence (through the tendering of Imo State Government Gazzette) that the 1st appellant has been recognized and issued staff of office as the traditional ruler of Nneano Agbaja Autonomous Community Ehime, Mbano Local Government Area, Imo State.
?In addition, the learned counsel for the appellants argued that the facts alluded to in the affidavits in support of the preliminary objection has no impact whatsoever in this appeal. He continued that the jurisdiction of this Court is regulated by Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the respondents have not shown that the provision of this
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section has been breached.
Finally, the learned counsel for the appellants argued that the only situation in which this appeal would be rendered an academic is if the respondents withdraw their suit. He therefore urged this Court to dismiss this preliminary objection and allow this appeal on merit.
It is to be noted that a preliminary objection against an appeal as in the instant case is essentially challenging the jurisdiction of this Court to hear the appeal. An issue of jurisdiction has been held in plethora of cases; can be raised at any stage during the Court proceedings or on appeal at the Supreme Court, with or without leave of the Court being sought and obtained. Also, the Courts are empowered to suo motu raise an issue of jurisdiction, where the parties fails to do so. See Olutola V. Unilorin (2004) 18 NWLR (Pt. 905) 416; Adesola V. Abidoye (1999) 14 NWLR (Pt. 637) 28; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; Owners, M/V Gongola Hope V. S. C. (Nig.) Ltd. & Anor. (2007) 15 NWLR (Pt. 1056) 189, (2007) 6 S. C. (Part 11) 58; and Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583. Thus, the contention of the learned counsel for the appellants that
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the respondent failed to seek the leave of this Court before raising this preliminary objection does not accord with the position of the law and accordingly discountenanced.
Also, the contention of the learned appellants? counsel that the preliminary objection was not predicated on facts on record is highly misplaced, because the purpose of filing an affidavit in support of the objection is to properly bring the facts upon which the objection is predicated upon on record. This is more so, because the events necessitating the preliminary objection occurred after the appeal in this case has been entered.
Again, on the submission of the learned counsel for the appellants that the preliminary objection has no impact on this appeal. I find this submission highly unprofessional and a serious attempt to mislead this Court. This is because, the outcome of the preliminary objection has the tendency of terminating this appeal, when upheld. Thus, the outcome of this preliminary objection has a serious impact on this appeal.
?It is now elementary in law that where facts which have been alluded to in an affidavit are not controverted by way of
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counter-affidavit, the facts therein are deemed as admitted. See the cases of Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545; Okorie V. Ejiofor (1996) 3 NWLR (Pt. 343) 90 and Dokubo-Asari V. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320. Also, it is now well established that where facts have been admitted they are deemed to have been proved in law. See cases of Ehinlanwo V. Oke (2008) 6 – 7 S. C. (Pt. 11) 123; (2008) 16 NWLR (Pt. 1113) 357; and Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187. Thus, the appellants having failed to file a counter-affidavit to controvert the facts stated in the respondent?s affidavits in support of the preliminary objection, the facts stated in the affidavits are deemed admitted and proved. That is, the respondent is deemed to have established in evidence that during the pendency of this appeal, the 1st appellant has been recognized and confirmed as the traditional ruler (Eze) of Nneano Agbaja Autonomous Community of Ehime, Mbano Local Government Area, Imo State by the Governor of Imo State.
?The question that needs to be asked and answered is: what is the effect of recognizing the 1st appellant as the
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traditional ruler of the said Nne-ano Autonomous Community? It is however, imperative to point out that, this appeal emanated from the preliminary objection filed by the appellants. The crux of the appellants? preliminary objection was that this suit is premature in the sense that the 2nd respondent to this appeal (Governor of Imo State) has not recognized the 1st appellant or anyone else as the traditional ruler of Nne-ano Autonomous Community. The appellants placed heavy reliance of Section 28 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999. Thus, it is not in doubt that the basis of this appeal and central point to be determined is whether the respondent?s suit can be maintained when the 1st appellant has not been recognized as the traditional ruler of Nne-ano Autonomous Community by the 2nd respondent.
?With the recent development which has been established by the respondent that the 1st appellant has now been recognized and given staff of office as the traditional ruler of Nne-ano Autonomous Community, I completely agree with the counsel for the respondent that the subject matter of this appeal has been spent.
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Consequently, this appeal has been rendered as an academic exercise.
The term ?academic exercise? or academic question has been defined by the Supreme Court in the case of Agbakoba V. I. N. E. C. (2008) 18 NWLR (Pt. 1119) 489, wherein His Lordship, Chukwuma Eneh, JSC enunciated as follows:
The Black Law Dictionary, 5th Edition at page 11 has defined academic question as an issue which does not require answer or adjudication by Court, because it is not necessary to case; hypothetical or moot question.
An action becomes hypothetical or raise mere academic point when there is no live matter in it to be adjudicate upon or when its determination holds no practical or tangible value for making a pronouncement upon it, it is otherwise an exercise in futility. When an issue in an appeal has become defunct it does not require to be answered or controvert about and leads to making bare legal postulations which the Court should not indulge in; it is like the salt that lost its seasoning. And like the salt in that state it has no practical value to anybody and so also, a suit in that state has none particularly and practically to the plaintiff.”
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Also, in the case of Plateau State V. Attorney ? General of the Federation (2006) 3 NWLR (Pt. 967) 346; LPELR ? 2921, page 76 ? 77, the Supreme Court, per Niki Tobi, J.S.C. (of blessed memory) defined an academic suit thus:
?A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it not related to practical situations of human nature and humanity.?
See also Odedo V. I. N. E. C. (2008) 17 NWLR (Pt. 1117) 554; Efet V. I. N. E. C. (2009) LPELR ? 4074; Yusuf V. Toluhi (2008) 14 NWLR (Pt. 1107) 237; (2008) 6 ? 7 S.C. (Pt. 1) 164; Bamaiyi V. Attorney-General of the Federation (2001) 12 NWLR (Pt. 727) 468.
Having established that the ground upon which the appellants? preliminary objection was predicated has been overtaken by event, I find no difficulty in agreeing with the learned counsel for the respondent that this appeal has become an academic exercise. That is, the subject matter of this appeal has been spent. Thus, this Court not being an
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academic institution will not undertake to carry out an academic duty in determining this appeal on merit.
In passing, I will like to comment that this appeal has similar facts with the cases of Governor of Imo State V. Amuzie & Ors. (2009) 13 NWLR (Pt. 1157) 34 and Attorney-General of Abia State V. Agharanya (1999) 6 NWLR (Pt. 607) 362, wherein this Court held that a plaintiff could successfully bring a suit challenging the nomination of an Eze-elect before the said Eze-elect (traditional ruler) is confirmed by the Governor. Thus, I am of the firm opinion that this appeal would have still failed, if heard on the merit. Hence, in the light of the above findings and the resultant negative answer to the issue formulated for determination in this appeal against the appellant. I have no hesitation whatsoever in coming to the inevitable conclusion that the present appeal cannot fly and the same is accordingly hereby struck out by me.
Consequently, the ruling of the lower Court delivered on the 17th day of March, 2014 is hereby affirmed by me. Costs assessed at N50,000.00 is awarded against the appellants and in favour of the 1st respondent.
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AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother OREDOLA, JCA. I am not only in complete agreement with the manner in which the preliminary objection to the appeal was but with conclusion of his lordship that the appeal in any event would have failed if considered on the merit.
Accordingly, I hold that the appeal has to be struck out and is hereby struck out given the success of the preliminary objection raised therein. I abide by the order in relation to costs as contained in the lead judgment.
?ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment, just delivered by my learned brother, M. A. R. Oredola JCA and I agree, completely, with his reasoning and conclusion that the preliminary objection is sustainable, to terminate the appeal.
Appellants? act of inducing or getting the 2nd Respondent to recognize and install the 1st Appellant as the Eze on 31/3/2014, while this appeal, filed by them on 21/3/2014, was pending, which appeal had questioned the ruling of the trial Court on the very subject
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matter, appears to have defeated the whole essence of his appeal in this Court. Thus, Appellants, in my opinion, were sabotaging the said appeal and, contemptuously, acted to render the appeal nugatory, by pursuing and submitting to the said recognition and installation, while also pursuing this appeal.
?They (Appellants) were arguing in their preliminary objection (which resulted in this appeal) that the Respondents? suit was premature, in the sense that the 2nd Respondent (Governor of Imo State) had not recognized the Appellants? or anyone else as the traditional Ruler Nne-ano Autonomous Community, therefore, the suit should be struck out, as the trial Court had no jurisdiction to entertain it, for want of valid cause of action. With the 1st Appellant?s recognition on 31/3/14, while the appeal was pending, it would appear there is therefore no want of cause of action again, (even if the trial Court had erred)! Appellant and the 2nd Respondent had therefore, removed the basis of the appeal, having contemptuously determined the appeal by themselves, leaving nothing for this Court to consider any further. Thus, this appeal has become an academic exercise. ?
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In the case of Labour Party vs. Bello & Ors (2016) LPELR ? 40848 (CA) this Court held that:
“An appeal is said to be academic, if it would bring no benefit to any party, except perhaps the mental satisfaction to that party or parties who brought it? A case is said to amount academic venture, where there cannot be said to be live issue in the litigation, if what is represented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started, so that in the end, an appeal has become academic at the time it is due for hearing. See the case of Attorney General of the Federation vs. ANPP (2004) LRCN 2671 Odedo vs. INEC (2008) 17 NWLR (Pt.117) 554?
I too strike out the appeal and abide by the consequential orders in the leading judgment.
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Appearances
D. O. Madu, Esq. with him, Mrs. N. U. Iwuoha and Mrs. N. J. AmaniFor Appellant
AND
J. C. Uwandu, Esq. with him, C. I. Onwudiegwu, Esq. for 1st Respondent.
Mrs. F. N. Otuokere Asst. (Director, Civil Litigation, Ministry of Justice, Imo State) for 2nd, 3rd and 4th Respondents.
5th Respondent served but absent.For Respondent
