IPC (NIGERIA) LIMITED v. NIGERIAN NATIONAL PETROLEUM CORPORATION
(2015)LCN/7860(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of May, 2015
CA/L/179/2006
RATIO
APPEAL: AN ACADEMIC QUESTION; WHEN IS SUIT SAID TO BE ACADEMIC
Is this appeal academic, speculative and undeserving of the attention of this Court? An academic question is an issue which does not require answer or adjudication by the court because it is not necessary to the case. A suit is said to be academic where it is merely theoretical and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. In Agbakoba v INEC (2008) NWLR PT 1119 489, the Supreme Court observed:
“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated 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 of bare legal postulations which the court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state it has no practical value to any body and so also, a suit in that state has none particularly, and practically to the plaintiff.” per. CHINWE EUGENIA IYIZOBA, J.C.A
APPEAL: PROCEDURE OF APPEALING TO THE COURT OF APPEAL ACCORDING TO THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has provided procedures for appealing to the Court of Appeal.
Section 241(1)(a) and (b) states:
“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
Section 242 provides:
“1. Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that of High Court or the Court of Appeal. (Underlining mine).
2. The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of Justice do not require an oral hearing of the application.” Per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.:
COURT: JURISDICTION; WHEN WOULD AN APPEAL BE LEGALLY INCAPABLE OF INVOKING THE APPELLATE JURISDICTION OF THE COURT
An appeal would be legally incapable of invoking the appellate jurisdiction of the court where the requisite leave of court is not obtained. See OJEME v. MOMODU (1983) 1 SCNLR 188; OGBECHIE V. ONOCHIE (1986) 2 NWLR (PT.23) 481; ABIDOYE V. ALAWODE (2001) 3 SC 1; OBATOYINBO & ANOR V. OSHATOBA & ANOR (1996) 5 NWLR (Pt.450) 531; MEDICAL & DENTAL PRACTITIONERS’ DISCIPLINARY TRIBUNAL V. OKONKWO (2001) 3 SC 76; MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V. EXPO-SHIPPING LINE (NIG.) LTD (2010) 12 NWLR (PT.1208) 261 (SC); ORAKOSIM V. MENKITI (2001) 5 S.C. (PT.1) 71 AT 80; AQUA LTD V. ONDO STATE SPORT COUNCIL (1988) 4 NWLR (PT. 1991) 622; NIGERIAN LAB. CORP. & ANOR V. PACIFIC MERCHANT BANK LTD (2010) LPELR – 7859 (SC).
Section 241 (1) (a) and (b) of the Constitution provides that where a decision relates to those stated in the provisions of (a) and (b) above, it is appealable as of right. Conversely, Section 242 provides for appeal requiring the leave of either the court below or the court of appeal where the grounds of appeal raise issues of facts alone or mixed law and facts.
The Appellant having not complied with Section 242(1) of the Constitution in not first obtaining leave has rendered the appeal incompetent. For the above reasons and more contained in the lead judgment, I also uphold the preliminary objection raised by the Respondent; it is meritorious and therefore succeeds. The appeal is hereby struck out for want of jurisdiction. I abide by consequential orders in the lead judgment. .” Per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
IPC (NIGERIA) LIMITED Appellant(s)
AND
NIGERIAN NATIONAL PETROLEUM CORPORATION Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Auta J. (as he then was) of the Federal High Court in Suit No FHC/L/CS/1060/2004 to re-hear the Appellant’s preliminary objection de novo following the administrative transfer of the case file to his Lordship by the then Chief Judge of the Court.
FACTS:
By an Originating Motion dated 15/11/04, the Respondent sought inter alia for an Order setting aside an Arbitral Award made on 28/10/04 in favour of the Appellant. Pursuant to leave of the Lower Court, the Respondent amended its Originating Motion on 4/2/05 and further amended same on 18/3/05. The Appellant subsequently filed a preliminary objection dated 25/5/05 challenging the Further Amended Originating Motion. The said Preliminary Objection was thereafter argued before G.C. Okeke J and ruling reserved for the 12th of December, 2005. The matter took a different turn when on 29/11/05, the Respondent herein filed an application seeking the following:-
1. “An Order of this Honourable Court transferring this case to the Honourable Chief Judge for re-assignment to another judge of the Federal High Court for hearing;
2. An Order suspending the delivery of the ruling on the Respondent’s preliminary objection, reserved for 12th December, 2005 pending the re-assignment of this matter and the re-hearing of the objection before another judge of this Honourable Court; and
3. An Order of this Honourable Court adjourning further proceedings in this suit sine die pending the transfer of the suit before another judge of the Federal High Court.”
The Appellant in opposition to the application filed a counter affidavit.
On 12/12/05 when the matter came up, G. C. Okeke J. decided that, he would transfer the case back to the Chief Judge for reassignment of the file to another Judge for determination of the Respondent’s application for re-assignment since the said application touched on the integrity of his court and he could not be a judge in his own case. Okeke J stated further that the ruling in respect of the Appellant’s Preliminary Objection was ready and that he would deliver the said Ruling if his court was exonerated. He stated that he was returning the case-file to the Chief Judge “for necessary action”.
On 16/12/05, the Chief Judge of the Federal High Court transferred the case file to Auta J with the endorsement “re-assigned to Auta J”. On 20/2/06 when the matter came up before Auta J, despite the contention of Counsel to the Appellant that the case-file was transferred only for the purpose of hearing the Respondent’s motion seeking the transfer of the suit, Auta J. was of the view that the Chief Judge transferred the whole suit to be heard de novo and thereafter adjourned the matter for hearing of the Appellant’s Preliminary Objection challenging the Respondent’s Further Amended Originating Motion.
The Appellant, dissatisfied with the said decision of Auta J. appealed to this court by a Notice of Appeal with 4 grounds of appeal; which Notice was with the leave of the Court subsequently amended on 16th February, 2015. From the 4 grounds of appeal, Learned Counsel for the Appellant distilled 3 Issues for determination as follows:
1. “Whether the Lower Court was right in his decision that the Chief Judge of the Federal High Court transferred the whole case from the Court of the Honourable Justice G. C. Okeke to be heard de novo and consequently that he would re-hear the Appellant’s Preliminary Objection.
2. Whether the Lower Court was right to have ignored/suspended and/or put in abeyance the already prepared ruling of Honourable Justice Mrs.) G. C. Okeke in respect of the Appellant’s preliminary objection, and thereby effectively (and/or sub silentio) granted the Respondent’s application dated the 29th of November, 2005.
3. Whether the Lower Court ought not to have heard, and dismissed the Respondent’s motion dated the 29th of November, 2005.”
The Respondent on its own part identified the following 3 issues for determination:-
1. “Whether the Honourable Chief Judge of the Federal High Court transferred the case file to Hon. Justice I.N. Auta’s Court for the purpose of hearing the Respondent’s motion dated 29th November, 2005 or for hearing of the substantive suit?
2. Whether Hon. Justice I.N. Auta’s decision to hear the whole suit de novo was right in the circumstances and whether same amounts to determining sub silentio the Respondent’s motion dated 29th November, 2005?
3. Whether the Respondent’s application dated 29th November, 2005 should have been dismissed by Hon. Justice Auta?
The Respondent had however filed a Notice of Preliminary Objection to the competence of this Appeal which he argued in his brief of argument. The Preliminary Objection will be taken first.
PRELIMINARY OBJECTION
The grounds of the Preliminary Objection are as follows:
1. The appeal is academic, speculative and absolutely undeserving of the attention of this Court;
2. The appeal is essentially against an administrative decision of the Chief Judge of the Federal High Court and the Appellant has no right of appeal against such administrative decision;
3. Grounds 1, 2 and 3 of the Amended Notice of Appeal dated 6th March, 2006 raise issues of facts and/or mixed law and facts for which the Appellant failed to seek and obtain the requisite leave of court.
RESPONDENT’S ARGUMENTS ON THE PRELIMINARY OBJECTION
1. That the appeal is academic, speculative and absolutely undeserving of the attention of this Court.
It is the submission of learned senior Counsel for the Respondent that courts do not decide cases on the basis of speculation, conjectures or any other form of academic exercise but on facts and laws. On this point Counsel cited various cases including AGIP (Nig) Ltd & 8 Ors v Ezendu & 9 Ors (2010) 1 SC (Pt 11) 98 @ 162-163 & Alli v Aleshinloye (2000) 4 SC (Pt 1) 111 @ 142. Counsel also submitted that courts do not make orders in vain. He referred to the case of Pam v Mohammed (2008) 5-6 SC (Pt 1) 83 @ 144 where Tobi JSC observed that an order that cannot in the circumstances of time be implemented is as good as not made. Applying the above principles to the instant case, Counsel submitted that G.C. Okeke J having since retired from the Federal High Court, which this Court is obliged to take judicial notice of by virtue of Section 122 (2) (J) of the Evidence Act, this Court cannot legally grant the Appellant’s prayer to order G.C. Okeke J to read her Ruling. Counsel further argued that a Ruling can only exist in law if it has been written and signed and that the Records of Appeal of this case do not contain any Ruling written and signed by G.C. Okeke J, (Rtd). What Ruling, Counsel asked rhetorically, would the Court of Appeal be directing another Judge to read? Counsel submitted that the prayer for this court to hear the application dated 29th November, 2005 for the re-assignment of the case in the Lower Court to another Judge has become otiose due to the retirement of G.C. Okeke J since the matter would be heard by another Judge with or without the hearing of that application.
2. That the Appellant does not have a right of appeal against the administrative decision of the Chief Judge of the Federal High Court.
Counsel submitted that the decision to transfer the case was not taken by Auta J but by the Chief Judge of the Federal High Court. He argued that a review of the Record of Appeal shows that the instant appeal is in fact against the administrative decision of the Chief Judge of the Federal High Court and that Auta J made no decision on 20th February, 2006 which can be said to form the basis of this appeal. Counsel submitted that in view of the Respondent’s application, Okeke J returned the case file to the Chief Judge ‘for necessary action’ and that it was up to the Chief Judge to determine the nature and extent of ‘necessary action’ to take in the circumstance. Counsel submitted that the Chief Judge of the Federal High Court by virtue of Section 19 (3) of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria 2004 and Order 35 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000, is statutorily vested with an unfettered, and unqualified discretion to assign, re-assign or transfer cases to any Judge of the Federal High Court. Counsel submitted that this power of the Chief Judge to assign or re-assign a case is an administrative power and not a judicial or quasi judicial function which would necessitate hearing parties on both sides. On this point, Counsel cited the following cases: Aliyu v Ibrahim (1992) 7 NWLR (Pt 253) 361; Egbe v Belgore (2004) 8 NWLR (Pt 875) 336 at 353; Dike v Aduba (2000) 3 NWLR (Pt 647) 1 at 10.
3. That Grounds one, two and three of the Amended Notice of Appeal are incompetent.
Counsel submitted that where an appeal against an Interlocutory decision raises an issue of fact or mixed law and fact, leave of court is required before such ground can be considered by the Court of Appeal. Thus where the grounds are of facts or of mixed law and facts, the appeal must be struck out as incompetent unless leave was obtained. Irhabor v Ogaimien (1999) NWLR (Pt 616) 571 at 524. Counsel submitted that Ground 1 cannot be resolved without first determining the purpose and effect of the re-assignment of the case-file to Auta J by the Chief Judge of the Federal High Court. Counsel argued that the purpose of the re-assignment of the case-file to Auta J was a disputed fact before that court and that Ground 1 raises issues of mixed law and facts for which leave ought to have been sought and obtained before same was filed. Counsel submitted that Grounds 2 and 3 which are similar in nature and character also call for a resolution of the issue whether the learned Trial Judge rightly suspended and/or put in abeyance the already prepared ruling of Okeke J and whether Auta J granted the Respondent’s application dated 29th November, 2005. Both Grounds, Counsel argued raise the question whether or not the Chief Judge transferred the entire suit or just the motion. It is also in issue whether the Respondent’s application dated 29th November, 2005 has been determined by Auta J and whether same amounts to suspending or putting in abeyance the already prepared ruling of Okeke J. Counsel submitted that the determination of grounds 2 and 3 would entail an examination of seriously disputed facts and that the failure to obtain leave rendered the said grounds incompetent and liable to be struck out.
APPELLANT’S ARGUMENT IN REPLY
Learned Senior Counsel for the Appellant in response to the first ground of objection submitted that a decision in writing made by a Court can be read out and pronounced by another Judge of the same Court. On this point, Counsel cited the case of Attorney General of the Federation V ANPP (2003) 15 NWLR (Pt 844) 600 at 671. Counsel further submitted citing Osuji v Ekeocha (2009) 16 NWLR (Pt 1166) 81 that in determining an appeal, the appellate Court has no jurisdiction to go outside the Notice and Grounds of Appeal filed by the Appellant. Counsel submitted that none of the grounds mentioned in the Amended Notice of Appeal relates to the issue whether the Ruling already prepared by Okeke J was in the records of the Lower Court and this question was not considered by Auta J in his Ruling of 20th February, 2006. Counsel contended that what is in issue is whether Auta J was right in granting the Respondent’s application of 29th November, 2005 which sought to arrest the ruling already prepared by Okeke J without affording the Appellant an opportunity to be heard. Counsel submitted that the Respondent’s arguments which question the existence of the ruling by Okeke J is an attempt to challenge the record of the Lower Court which show conclusively that the ruling was ready but could not be delivered due to the Respondent’s application. Counsel submitted further citing Public Finance Securities Limited v Jefia (1998) 3 NWLR (Pt 543) 602 and Odofin v Agu (1992) 3 NWLR (Pt 229) 350 at 367 that an appellate Court is bound by the record of proceedings of the Lower Court and cannot go outside it to decide on a disputed issue. He called the attention of the court to the case of Waziri v The State (1997) 3 NWLR (Pt 496) 689 at 723 where it restated that the procedure to be adopted by a party seeking to challenge the correctness of the record of proceedings is to swear to an affidavit setting out the facts or part of proceeding omitted or wrongly stated in the record.
On the second ground, learned senior counsel submitted that the Notice and Grounds of Appeal establish conclusively that the grievance of the Appellant in this appeal is directed at the decision of Auta J of 20th February, 2006. Counsel posited that none of the grounds of appeal identified by the appellant complains of the Administrative decision of the Chief Judge of the Federal High Court assigning the case-file to Auta J. On the contrary the complaint of the Appellant was specifically directed at the judicial decision of Auta J to re-hear the Appellant’s notice of Preliminary Objection which decision effectively granted the Respondent’s application of 29th November, 2005 to arrest the ruling of Okeke J. without affording the Appellant an opportunity to be heard. Counsel submitted that Order 35 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000 is inapplicable to the facts of this appeal because the Appellant is not challenging the Administrative decision of the Chief Judge but the judicial decision of Auta J against which the Appellant has a constitutional right of appeal to this Court.
In response to the issue whether grounds 1, 2 and 3 are competent, Learned Counsel to the Appellant submitted that the question as to whether or not leave was obtained by the Appellant in the instant appeal must be answered in the affirmative in view of the ruling delivered by this Court on 22nd November, 2013 wherein this court granted the Appellant leave to appeal against the decision of Auta J on grounds other than grounds of law. Counsel submitted further that since the said decision has not been appealed against, this Court is Functus Officio as it cannot review or revisit its judgment as it relates to whether or not the Appellant obtained leave to appeal.
RESOLUTION OF THE RESPONDENT’S PRELIMINARY OBJECTION
The objective of a Preliminary Objection as argued herein is to contend that the appeal is defective and should be terminated. A Preliminary Objection is employed to disclose a reason why an appeal should not be heard, and not why an appeal should not be allowed. See Order 10 Rule 1 of the Court of Appeal Rules 2011. A preliminary objection is therefore a preliminary hearing different from the appeal which receives priority treatment in the order of hearing an appeal. Where a preliminary objection is raised, it must be heard before proceeding with the substantive appeal. This is because, if the objection is as regards the competence of the appeal is upheld, that would bring the appeal to an end. UBN Plc v Umeoduagu (2004) 13 NWLR Pt 890 352 R5. The issue under consideration is an Objection by the Respondent to the hearing of the appeal on the ground that it is incompetent. The Appellant’s argument that this Court has no jurisdiction to go outside the Notice and Grounds of Appeal filed by the Appellant and that none of the grounds mentioned in the Amended Notice of Appeal relates to the issue whether the Ruling already prepared by Okeke J was in the records of the Lower Court is irrelevant in the consideration of the Respondent’s preliminary objection. That argument will be relevant if this Court was considering the substantive appeal. The determination of a Preliminary Objection to the hearing of an appeal which in most cases is legal argument contesting the competence of the appeal is not a ‘hearing of the appeal’ which can only be considered based on issues for determination distilled from the Grounds of Appeal or Cross Appeal. The Respondent rightly in the circumstances filed a preliminary objection. This Court in Takum LG v UCB (Nig) Ltd (2003) 16 NWLR (Pt.846) 288 at 299 paras B-C, held “Where the issue sought to be raised by the Respondent in an appeal does not relate to the grounds in an appeal formulated by the appellant the respondent can raise such an issue as a preliminary objection… and not as an issue for determination”. The Appellant’s argument is a misconception of the two terms ‘Issues for Determination’ which are formulated from the Grounds of Appeal and ‘Preliminary Objection’. The Supreme Court, considering these two terms observed that ‘Issues for Determination’ and ‘Preliminary Objection’ are ‘strange bedfellows’ which should not be confused: Odunze v Nwosu (2007) 13 NWLR Pt 1050 1 R18:
“…issues for determination and preliminary objection under the rules do not have a common meeting ground. How to initiate an objection is fully covered by the rules. Preliminary Objection strictly speaking runs counter to the intendment of issues for determination in the sense that it aborts, indeed forecloses, the hearing of the case in limine and if upheld terminates the case. It automatically puts an end to the case without determining the rights of the parties, while issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point which when decided affects the fate of the appeal. It must relate to the grounds of appeal. The two are more or less strange bedfellows”.
It is therefore erroneous on the part of the Appellant to suggest that a fact upon which the Respondent’s objection is premised should not be allowed because that fact is not raised in the grounds of Appeal whereas the intention of the Respondent in raising a Preliminary Objection is to foreclose the hearing of the appeal without determining the rights of the parties. It is only in the event that the Preliminary Objection is overruled and the appeal proceeds to hearing, that the question of the issues for determination relating to the Grounds of Appeal will arise. The issue under consideration is whether the hearing of this appeal will amount to an academic and speculative exercise which the law does not allow. If the question whether the Ruling which is the subject matter of this appeal is in existence or not will help to resolve the issue whether the appeal is speculative or academic, then a resolution of that fact is necessary in order to determine that issue. Whether or not the Ruling of Okeke J is available is an issue that needs to be resolved before going into the substantive appeal.
Learned Counsel for the Appellant had submitted that the Respondent’s arguments which question the existence of the Ruling by Okeke J is an attempt to challenge the record of the Lower Court. I agree with Counsel that an Appellate Court is bound by the record of proceedings of the Lower Court and cannot go outside it to decide a disputed issue. However it is clear from the submissions of Learned Counsel for the Respondent that he is not challenging the correctness of the Record of Appeal. He just made a factual statement that the Ruling of Okeke J is not in the Record of Appeal. The submission of Learned Counsel is that a Ruling can only exist in law if it has been written and signed and that the Records of Appeal of this case do not contain any Ruling written and signed by G.C. Okeke J. If Appellant’s counsel insists that the Ruling exists, he bears the burden of proving where the Ruling is and should be the one to challenge the non inclusion of that Ruling in the Record of Appeal.
The second prayer of the Appellant is to order Okeke J or another Judge of the Federal High Court to read a Ruling already prepared by Okeke J. Learned Senior Counsel for the Appellant had pointed out that the Records of Appeal show conclusively that the Ruling was ready but could not be delivered due to the Respondent’s application. This is true. Can this Court then order Okeke J in retirement to return to the Federal High Court to read his Ruling prepared ten years ago before his retirement? Obviously, this is not possible, to the knowledge of the Appellant! Learned Senior Counsel for the Respondent had pointed out that a Ruling can only exist in law if it has been written and signed. Is it possible for another Judge to read a Ruling prepared and signed by Okeke J? The law it seems is that a Ruling prepared and duly signed by a Judge could be read by another Judge. See Attorney General of the Federation v ANPP (2003) 15 NWLR (Pt 844) 600 at 671. My humble view however is that once a judge proceeds on retirement, from the official date of his retirement, another judge is incompetent to read the judgment of the retired judge. This underscores the futility of this appeal. Even if Okeke J was still in service but unavailable to read the judgment and this Court proceeds to determine this appeal and ultimately orders that another Judge should read the ruling of Okeke J, it is apposite to ask just as Learned Senior Counsel for the Respondent asked; which Ruling would this Court direct that other Judge to read? Can this Court in its wisdom direct another Judge to read a Ruling which it has neither seen nor can lay its hands on? There is certainly no point in making an order that the Court making it knows cannot be implemented. Courts as was submitted by Learned Senior Counsel for the Respondent relying on the case of Pam v Mohammed (2008) 5-6 SC (Pt 1) 83 at 144 do not make orders in vain.
Is this appeal academic, speculative and undeserving of the attention of this Court? An academic question is an issue which does not require answer or adjudication by the court because it is not necessary to the case. A suit is said to be academic where it is merely theoretical and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. In Agbakoba v INEC (2008) NWLR PT 1119 489, the Supreme Court observed:
“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated 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 of bare legal postulations which the court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state it has no practical value to any body and so also, a suit in that state has none particularly, and practically to the plaintiff.”
The reliefs sought by the Appellant in his amended Notice of Appeal are as follows:
a) “An order reversing the sub-silentio decision of the lower court to grant the Respondent’s application dated the 29th of November, 2005;
b) A hearing and dismissal of the application of the Respondent dated the 29th of November, 2005;
c) An Order directing the Honourable Chief Judge of the Federal High Court to assign the case file to another Judge of the Federal High Court for the purpose of reading the Ruling already prepared by the Honourable (Mrs) Justice G.C. Okeke in respect of the Appellant’s preliminary objection, and further conduct of the case as may be required.”
Given that Okeke J has retired and there is no evidence of a Ruling prepared by her in the Records of Appeal of this case, the Appellant’s prayers are merely theoretical and of no practical utilitarian value to the Appellant even if judgment is given in its favour. With the retirement of Okeke J, the application dated the 29th of November, 2005 became irrelevant as the case is now bound to be heard and determined by another judge of the Federal High Court. The issues raised by the Appeal do not any longer require answers or adjudication by this court.
The Supreme Court observed further in Agbakoba v INEC (Supra) that when an issue in an appeal has become defunct, it does not require to be answered or to controvert about. I find merit in the submission of learned senior Counsel for the Respondent that the Appellant’s first prayer in this Appeal for this court to hear the application dated 29th November, 2005 for the re-assignment of the case in the Lower Court to another Judge has become otiose due to the retirement of Okeke J. There is no doubt that the Appellant’s prayers in this appeal have become defunct, and do not require to be answered or to be controverted. The case of Ukachukwu v. Uba (2005) 18 NWLR (Pt 956) 1. Cited by the Appellant is not apposite. The judgment was part read and already in the public domain and the justices were still in service. Okeke J. chose not to read the Ruling already prepared and on his own transferred the case to the Chief Judge for necessary action while retaining the Ruling in his custody. He retired while still in custody of the Ruling. Does the court seek him out in retirement to retrieve the Ruling? This appeal is indeed academic, speculative and undeserving of the attention of this Court.
On whether this Appeal is against the Decision of Auta J or against the administrative decision of the Chief Judge of the Federal High Court; I agree with learned senior Counsel for the Respondent that the decision to transfer the case was not taken by Auta J but by the Chief Judge of the Federal High Court and that the instant appeal is indirectly against the administrative decision of the Chief Judge of the Federal High Court. Learned senior counsel for the Appellant had argued that the Notice and Grounds of Appeal establish conclusively that the grievance of the Appellant in this appeal is directed at the decision of Auta J of 20th February, 2006 and not at the decision of the Chief Judge of the Federal High Court. But Auta J derived the power to hear this case based on the assignment order from the Chief Judge of the Federal High Court. Even if the intention of Okeke J by the transfer of the case file to the Chief Judge for necessary action was that the Chief Judge assigns the case to another judge for the purpose of determining the application of 29/11/05, the Chief Judge is at liberty to do otherwise. The endorsement of the Chief Judge to Auta J at page 1 of the Record of Appeal simply says-“Re-assigned to Auta J”. The endorsement did not restrict the re-assignment to Auta J specifically for the hearing of the Application dated 29th November, 2005. Auta J must have reasoned that if the Chief Judge wanted him to determine only the Application dated 29th November, 2005, he would have made that explicit. I agree with the Respondent that the decision to hear the entire case was not that of Auta J. Auta J did not make that decision. He complied with the directive of the Chief Judge. It is in my view, impracticable to expect Auta J to determine whether or not the application for transfer of the case should or should not be granted. Okeke J. ought to have taken that decision. The transfer of the suit to the Chief Judge for necessary action was more or less for re-assignment to another judge for trial de novo. Okeke J. with due respect acted out of misconception of the law in transferring the case to the Chief Judge for assignment to another judge for the hearing of the application of 29/11/05. It is true that the grievance of the Appellant in this appeal as shown in the Notice of Appeal is stated to be directed at the decision of Auta J of 20th February, 2006, but a scrutiny of the facts before this Court reveal that the bone of contention here is the Administrative Decision of the Chief Judge of the Federal High Court who as expected re-assigned the case to Auta J. Since the Chief Judge in the exercise of the powers conferred on him by Section 19 (3) of the Federal High Court Cap F12 Laws of the Federation of Nigeria 2004 and Order 35 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000, is statutorily vested with an unfettered, and unqualified discretion to assign, re-assign or transfer cases to any Judge of the Federal High Court, Auta J was not in a position to question or disobey the directive of the Chief Judge which re-assigned the case to him. Obviously, it was in compliance with the directive of the Chief Judge that Auta J moved to hear the case de novo as expected.
On whether Grounds one, two and three of the Amended Notice of Appeal are valid and competent, Learned Senior Counsel for the Appellant had submitted that the question as to whether or not leave was obtained by the Appellant in the instant appeal must be answered in the affirmative in view of the ruling delivered by this Court on 22nd November, 2013 wherein this court granted the Appellant leave to appeal against the decision of Auta J on grounds other than grounds of law. I have taken a close look at the Ruling of this Court on 22/11/2013 delivered by Oseji JCA. There was an application for leave to appeal against the decision of Auta J on grounds other than grounds of law. But Oseji JCA at page 19 of the Ruling granted the trinity prayers and did not grant the application for leave to appeal on grounds other than grounds of law. I have searched diligently the Record of Appeal and the case file; I did not find anywhere else where an application for leave to appeal on grounds other than grounds of law was granted. Grounds one, two and three of the amended Notice of Appeal are consequently incompetent.
I must state that it is curious that the parties have spent close to ten years pursuing this simple matter in the appellate court. Considering that an administrative action by a Chief Judge re-assigning or transferring a case to another Judge is not a judicial or quasi judicial function, (Dike v Aduba (2000) 3 NWLR (Pt 647) 1 at 10), the Appellant could have resolved the issue by writing to the Chief Judge of the Federal High Court to clarify his directive to Auta J or simply continued with the case before Auta J to save time and cost. But perhaps the Respondent is right that the whole exercise was a deliberate strategy to delay the hearing of the case to achieve a desired result. If that was the case, it is indeed unfortunate that the legal process could be so abused.
In the final result, I hold that there is merit in this Preliminary Objection. It is hereby upheld. This appeal is struck out with N100,000.00 in favour of the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the incisive judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the honour of reading in print.
I wish to add by way of emphasis that a party intending to impeach or challenge the record of the court is bound to bring a motion on notice for amendment of the record to that effect which should be served on the opponent(s) and the Registrar of the court in question for their reaction or response thereto. It is not done by submissions or arguments of counsel vide Ogli Oko Memorial Farms Ltd. and Anor. v. Nigerian Agricultural Cooperative Bank Ltd. and Anor. (2008) 3 – 4 S.C. at 107 – 108. Consequently, the contention of the appellant that Okeke, J., had prepared a Ruling in the case which is not borne out by the record is farfetched and of no moment.
Further, the re-assignment of the case by the Chief Judge of the Federal High Court to Auta, J., was an administrative act which should have hardly received the searchlight of an appeal of this nature.
In conclusion, I too find merit in the preliminary objection which I hereby uphold and strike out the appeal with N100,000 costs to the respondent.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Chinwe Eugenia Iyizoba, JCA, I agree with the reasoning and conclusion reached therein. Nevertheless, I wish to emphasize that:
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has provided procedures for appealing to the Court of Appeal.
Section 241(1)(a) and (b) states:
“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
Section 242 provides:
“1. Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that of High Court or the Court of Appeal. (Underlining mine).
2. The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of Justice do not require an oral hearing of the application.”
An appeal would be legally incapable of invoking the appellate jurisdiction of the court where the requisite leave of court is not obtained. See OJEME v. MOMODU (1983) 1 SCNLR 188; OGBECHIE V. ONOCHIE (1986) 2 NWLR (PT.23) 481; ABIDOYE V. ALAWODE (2001) 3 SC 1; OBATOYINBO & ANOR V. OSHATOBA & ANOR (1996) 5 NWLR (Pt.450) 531; MEDICAL & DENTAL PRACTITIONERS’ DISCIPLINARY TRIBUNAL V. OKONKWO (2001) 3 SC 76; MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V. EXPO-SHIPPING LINE (NIG.) LTD (2010) 12 NWLR (PT.1208) 261 (SC); ORAKOSIM V. MENKITI (2001) 5 S.C. (PT.1) 71 AT 80; AQUA LTD V. ONDO STATE SPORT COUNCIL (1988) 4 NWLR (PT. 1991) 622; NIGERIAN LAB. CORP. & ANOR V. PACIFIC MERCHANT BANK LTD (2010) LPELR – 7859 (SC).
Section 241 (1) (a) and (b) of the Constitution provides that where a decision relates to those stated in the provisions of (a) and (b) above, it is appealable as of right. Conversely, Section 242 provides for appeal requiring the leave of either the court below or the court of appeal where the grounds of appeal raise issues of facts alone or mixed law and facts.
The Appellant having not complied with Section 242(1) of the Constitution in not first obtaining leave has rendered the appeal incompetent. For the above reasons and more contained in the lead judgment, I also uphold the preliminary objection raised by the Respondent; it is meritorious and therefore succeeds. The appeal is hereby struck out for want of jurisdiction. I abide by consequential orders in the lead judgment.
Appearances
Babatunde Fagbohunlu SAN with D. Obidiegwu Esq.For Appellant
AND
Abdullahi Ibrahim SAN, with Adetunji Oyeyipo SAN, O. Akoni SAN, K. A. Daoudu ESQ., Toyin Shaibu (Mrs.), A. Adegboyega Esq., and I. Akinajo (Mrs)For Respondent
