FOUNTAIN PETROLEUM NIGERIA LIMITED v. HON. JUSTICE STELLA OGHENEKUMA NKIRUKA OGENE & ORS
(2019)LCN/13381(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
RATIO
APPEAL: GROUNDS OF APPEAL MUST RELATE TO AND CHALLENGE A RATIO DECIDENDI
It is now settled law that a ground of appeal must relate to and should be a challenge to the ratio decidendi of the decision appealed against. See Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106; Rt. Hon. Michael Balonwu v. Governor of Anambra State (2009) 18 NWLR (Pt. 1172) 13 and Mrs. Ganiat Yetunde Elias v. Ecobank Nigeria PLC (2017) 2 NWLR (Pt. 1549) 175.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
WHAT IS AN ACADEMIC SUIT
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 is not related to practical situations of human nature and humanity.
See also Alhaji Kashim Shettima & Anor. v. Alhaji Mohammed Goni & Ors. (2011) 18 NWLR (Pt. 1279) 413 at 479, per Ngwuta, JSC.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
THE ATTITUDE OF COURTS TOWARDS ACADEMIC SUITS
It has now been settled by a very long line of decisions of the Supreme Court that Courts should spend their precious judicial time and resources in deciding or resolving only live issues and not academic or hypothetical issues. See for example, the cases of Oyeneye v. Odugbesan (1972) 4 SC 244; Fawehinmi v. Akilu (1987) 4. NWLR (Pt. 67) 799; Chief James Adolo Okotie-Eboh v. Chief James Ebiowo Manager (2004) 18 NWLR (Pt. 905) 242; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248 and Bashiru Popoola v. The State (2018) 10 NWLR (Pt. 1628) 485 at 496, per Rhodes-Vivour, JSC, where the Court held thus:-
It is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty. Judges are to decide live issues.”PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant, as claimant in Suit No. HOB/13/2012 commenced by way of an originating summons in the High Court of Delta State, sought the determination of the following questions: –
1. Whether the 1st defendant has any right/power and/or authority to instruct, direct and/or mandate the 2nd and 3rd defendants or any other Registrar of the Customary Courts in Delta State to transmit records of appeal in respect of appeals emanating from Customary Courts to the Customary Court of Appeal irrespective of the Court to which the appeal is filed.
2. Whether the 3rd defendant was right when he transmitted records of appeal to the Customary Court of Appeal, Asaba in respect of the appeal of the claimant pending before the Obiaruku High Court when there is no appeal before the Customary Court of Appeal.
The appellants claim in the suit is as follows: –
1. A declaration that the 1st defendant has no right/power and/or authority to instruct, direct and/or mandate the 2nd and 3rd defendants or any other Registrar of Customary Courts in Delta State to transmit records of appeal in respect of appeals emanating from Customary Courts to the Customary Court of Appeal, irrespective of the Court to which the appeal was filed.
2. A declaration that the 3rd defendant was wrong when he transmitted the records of appeal to the Customary Court of Appeal, Asaba in respect of an appeal filed by the claimant to the Obiaruku High Court.
3. An Order compelling the 3rd respondent to transmit to the Obiaruku High Court the records of appeal in respect of the appeal of the claimant presently pending before the Obiaruku High Court.
4. An Order prohibiting the defendants from further action on the said oral directives and/or instruction to transmit records of appeal in respect of appeals emanating from Customary Courts to the Customary Court of Appeal, irrespective of the Court to which the appeal was filed.
The originating summons was supported with an affidavit of 11 paragraphs by which exhibits VEO1 to VEO6 were tendered. It was further supported with a written address. In opposition, the respondents who were the defendants, filed a counter affidavit of 25 paragraphs and tendered Exhibits D1 and D2. The counter affidavit was also supported with a written address.
In addition to their counter affidavit, the respondents filed two motions on notice one was for an order striking out the names of the 1st, 2nd and 3rd respondents and the other was for an order dismissing the suit for being incompetent. The trial Court first considered the second motion on notice for an order to dismiss the suit for being incompetent and granted it. The trial Court then struck out the appellants suit. This appeal is against the said decision, which was delivered on the 9th day of January, 2013.
In the appellants brief, filed on 22/06/2017, four issues were formulated for determination as follows:-
“1. Whether the learned trial judge was right when he held that the appellant did not pose any question of law for the lower Court to determine.
2. Whether the learned trial judge was right when he held that the appellant?s originating summons was founded on hostile fact and therefore struck it out when he could have ordered for pleadings to be filed by the parties.
3. Whether having refused the respondents motion to extend time within which to apply to strike out and/or dismiss this suit, the lower Court could still rely on the grounds adumbrated in the same motion to strike out this suit.
4. Whether the learned trial judge exercised his discretion judicially and judiciously when he awarded cost of N70,000.00 in favour of the respondents.
The respondents suit was filed on 11/12/2018 and in it they adopted the issues identified by the appellant.
Without any rigmarole, the judgment of the trial Court, the subject matter of this appeal, spans pages 216 to 222 of the record of appeal and in it there is no specific order awarding costs in favour of the respondents against the appellant.
It is now settled law that a ground of appeal must relate to and should be a challenge to the ratio decidendi of the decision appealed against. See Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106; Rt. Hon. Michael Balonwu v. Governor of Anambra State (2009) 18 NWLR (Pt. 1172) 13 and Mrs. Ganiat Yetunde Elias v. Ecobank Nigeria PLC (2017) 2 NWLR (Pt. 1549) 175.
Ground 7 of the appellants grounds of appeal, complaining of award of N70,000.00 costs, does not constitute an attack against the ratio decidendi of the judgment appealed against and the said ground is incompetent. The law is that an issue distilled from an incompetent ground of appeal is liable to be struck out. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185 and A.T.S. & Sons v. Ben Electronics Co. Nig. Ltd. (2018) 17 NWLR (Pt. 1647) 1.
Ground 7 of the appellants grounds of appeal and issue 4 distilled therefrom, for the above reasons, are hereby struck out for being incompetent.
This appeal will be decided based on Issues 1, 2 and 3 formulated by the learned counsel for the appellants. The parties treated issues 1 and 2 together and the Court will also do the same.
ISSUES 1 AND 2
1. Whether the learned trial judge was right when he held that the appellant did not pose any question of law for the lower Court to determine.
2. Whether the learned trial judge was right when he held that the appellants originating summons was founded on hostile fact and therefore struck it out when he could have ordered for pleadings to be filed by the parties.
Learned counsel for the appellant argued that the trial Court was wrong when it held that the appellant did not pose any question of law for construction by the Court. Counsel argued as follows:-
We submit that the fact that there is no written document, contract, deed or will sought to be interpreted does not in any way derogate from the fact the question posed for determination are questions bordering on law and the right of the 1st respondent as regards the functions of her office and the exercise of jurisdiction by the Customary Court of Appeal, Asaba.
This is more so when the questions posed for determination are read bearing in mind paragraph 6 of the appellant affidavit in support of the originating summons and the Exhibit VEO4, which demonstrates that the appellant never filed or lodged and appeal to Customary Court of Appeal, Asaba but to the High Court of justice, sitting in Obiaruku.
Counsel referred to Order 3 Rule 5 of the High Court of Delta State (Civil Procedure) Rules, 2009 and the cases of M.I.N.I.L.S. v. Maliki (2012) All FWLR (Pt. 621) 1515 and Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 and submitted that originating summons could also be used to commence an action bordering on the determination of some other question of law and the questions of law to be determined need not be in a written document as the learned trial Judge wrongly held.”
Chief V.E. Otomiewo, learned counsel who settled the appellants brief, argued, inter alia, as follows:-
The mere fact that the respondent in their counter affidavit to the originating summons denied some of the depositions contained in the appellants affidavit in support of the originating summons does not in any way represent that the appellants suit was founded on hostile facts. A mere denial without more goes to no issue in the light of the Exhibit VEO4 and VEO5.
There is nothing to show or indicate from the printed records and the judgment of the lower Court, that it took any step to evaluate any aspect of the depositions of the parties in their affidavits before coming to the conclusion that the suit raised hostile facts and cannot therefore be tried by originating summons.
Assuming but not conceding that the suit is founded on hostile facts, the learned trial judge had the duty placed on him to do substantive justice and not relying on technicalities to strike out the suit in limine and/or be seen to take steps to punish the appellant for the mistakes if made, by the way and manner of the exercise of his lordships decision.
In support of the above submission, learned counsel referred the Court to the case ofEleburuike v. Tawa (2011) All FWLR (Pt. 591) 1473.
Learned counsel argued that even if the depositions in the counter affidavit were hostile, the Court ought to order for pleadings or calling of oral evidence. In this respect, learned counsel cited Order 3 Rule 16 of the Rules of the lower Court and the cases of Anagwu v. INEC (2012) All FWLR (Pt. 652) 1689 and Ezeaku v. Okonkwo (2012) All FWLR (Pt. 654).
Mr. Ekeme Ohwovoriole (SAN), learned senior counsel who settled the respondents brief, submitted that the appellant did not appeal against the finding of the trial Court on page 222 of the record of appeal and that the finding is admitted and the appellant is bound by it.
In support of this, learned senior counsel cited and relied on the case of Rev. Funso Akeju & Ors. v. Isaac Kayode (2014) LPELR (CA) p. 19, paras. C-E.
It is on record that the learned counsel for the appellant did not respond to the respondents preliminary issue or objection.
I have read the judgment appealed against by the appellant. The judgment spans pages 216 to 222. On page 222 of the record of appeal, the trial Court, per Hon. Justice Michael Nduka Obi, held, inter alia, as follows: –
With regards to question 2, Exhibit VEO5 is the transmitting document the claimant seeks to test its validity. A community reading of Exhibit D1 attached to the counter-affidavit in opposition to the originating summons shows that the issue of the validity of the said transmission of the appeal had been determined by the Customary Court of Appeal sitting at Asaba and by Exhibit D2 attached to the counter-affidavit in opposition to the originating summons. The Customary Court of Appeal had struck out the said appeal. This in my humble vies stripes this Court of the jurisdictional powers to determine question 2. The High Court and the Customary Court of Appeal are Courts of co-ordinate jurisdiction and accordingly this Court cannot adjudicate over an issue already pronounced on by the Customary Court of Appeal.
I agree with the argument of the learned senior counsel for the respondents, that a finding of fact not appealed against is deemed to be correct and the parties are bound by it. See Ejowhomu v. Edet-Eter Mandilar Ltd. (1986) 5 NWLR (Pt. 39) 1; Adeyemi v. Olakunrin (1999) 14 NWLR (Pt. 638) 104; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Madam Adunola Adejumo & Ors. v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike Ezenkwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
I have read the appellants notice of appeal, which covers pages 223 to 227 of the record of appeal. The appellants notice of appeal contains 7 (seven) grounds, none of which is against the finding of the trial Court that the appellants appeal, the subject matter of its second question for determination in its originating summons,had since been struck out by the Delta State Customary Court of Appeal. By not having appealed against the finding of the trial Court, that its appeal before the Customary Court of Appeal had been struck out, the fact that the said appeal had been struck out is deemed to be correct. The trial Court was, therefore, right to have declined jurisdiction to entertain question No. 2 in the appellants originating summons.
Question No. 1 in the appellants originating summons became a live question because of the appellants appeal, which was then pending before the Customary Court of Appeal. Since the said appeal had been struck out by the Customary Court of Appeal, and there is no appeal against that decision, question No. 1 in the appellants originating summons had since become otiose or worthless.
Based on the facts and analyses stated above, even if the appellant succeeds in this appeal, for any reason, no practical advantage or value will inure to it, as its two questions for the determination of the trial have become of mere academic relevance. Put differently, this appeal has become academic because it will not yield any practical advantage, benefit or value to the appellant even if the appeal succeeds.
In the case of Plateau State Government v. Attorney-General, Federation (2006) 3 NWLR (Pt. 967) 346 at 419, per Niki Tobi, JSC, the Supreme Court held as follows:-
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 is not related to practical situations of human nature and humanity.
See also Alhaji Kashim Shettima & Anor. v. Alhaji Mohammed Goni & Ors. (2011) 18 NWLR (Pt. 1279) 413 at 479, per Ngwuta, JSC.
It has now been settled by a very long line of decisions of the Supreme Court that Courts should spend their precious judicial time and resources in deciding or resolving only live issues and not academic or hypothetical issues. See for example, the cases of Oyeneye v. Odugbesan (1972) 4 SC 244; Fawehinmi v. Akilu (1987) 4. NWLR (Pt. 67) 799; Chief James Adolo Okotie-Eboh v. Chief James Ebiowo Manager (2004) 18 NWLR (Pt. 905) 242; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248 and Bashiru Popoola v. The State (2018) 10 NWLR (Pt. 1628) 485 at 496, per Rhodes-Vivour, JSC, where the Court held thus:-
It is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty. Judges are to decide live issues.”
To be quite brief, since this appeal has become academic, it is liable to be struck out. Accordingly, this appeal is hereby struck out at this stage, without the necessity to further consider the other issues raised by the parties.
The sum of N150, 000.00 (One Hundred and Fifty Thousand Naira only) is hereby awarded as costs in favour of the respondents and against the appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of a prior reading of the lead judgment just delivered by my learned brother, M.A.A. ADUMEIN JCA.
I agree with the reasoning and conclusion contained therein to the effect that the appeal be struck out.
Accordingly I also order that the appeal be struck out.
I abide by the consequential orders made in the lead judgment including orders as to costs.
Appearances:
S. Udi, Esq.For Appellant(s)
Mrs. Itohan Richards with her, E.O. OmoregieFor Respondent(s)
Appearances
S. Udi, Esq.For Appellant
AND
Mrs. Itohan Richards with her, E.O. OmoregieFor Respondent
