JOSEPH OGUNA v. FRIDAY EBINUM & ORS
(2019)LCN/13329(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/B/244/2019
RATIO
RULES OF PRACTICE AND PROCEDURE: THEIR PURPOSE
Rules of practice and procedure are aimed at prescribing the procedure for determination and enforcement of rights and obligations which aid legal principles. Their compliance should not be aimed at defeating the end of justice and foreclosing fair trial of disputes. See OLANIYAN VS. OYEWOLE (2008) ALL FWLR (PT 399) AT 503.
The purpose of rules of Court is to expedite justice and to ensure that affairs of Courts are carried out in an orderly fashion. Thus the Court should not be enslaved to the rules or interpret same to cause injustice by shutting out the Claimant from prosecution and the Defendant from defending the Suit.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
ELECTION PETITION: EFFECT OF FAILURE TO FILE A PETITION
The effect of this failure to file a Petition at the election Petition tribunal to challenge the outcome of the election is that any decision by this Court one way or the other will not confer any benefit or detriment on any of the parties. It will simply amount to an exercise in futility.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUDGMENT: WHEN A JUDGMENT IS ACADEMIC IN NATURE
Niki Tobi JSC in ADEOGUN VS. FASHOGBON (2008) 17 NWLR (PT. 1115) At Page 149 put this type of situation thus:
Any judgment which does not decide a live issue is academic or hypothetical. It stands in its best quality only as an advisory opinion. This Court and indeed any Court in Nigeria, will not engage in rendering such judgment. There cannot be said to be a live issue in litigation if what is presented 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 litigation started.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
JOSEPH OGUNA Appellant(s)
AND
1. FRIDAY EBINUM
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC) Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Appeal was the Defendant at the trial Court in a Suit filed by the 1st Respondent herein as the Plaintiff in an Originating Summons (See pages 2 – 20 of the Records).
Issues were joined and the learned trial Judge, Dimgba, J, of the federal High Court Asaba Division in a considered judgment delivered on the 18th day of March, 2019 gave judgment in favour of the 1st Respondent, upholding his Claim that he won the Primary election conducted by the All Progressive Congress (APC) for the Delta House of Assembly, Ndokwa West Constituency of Delta State.
This appeal resolves round the said judgment.
SUMMARY OF FACTS:
The Appellant and the 1st Respondent were members of the All Progressive Congress (APC), the 1st Respondent and the Appellant contested the Primary election of the APC for the House of Assembly Election for Ndokwa West Constituency of Delta State.
At the conclusion of the said Primary election, the 1st Respondent was said to have been returned as the winner of the election. That election was said to have
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been monitored by the 3rd Respondent (INEC) who also endorsed the result.
Despite the endorsement of the said Primaries by INEC, the second Respondent, (APC) took steps to forward the name of the Appellant as its candidate. Infuriated by the action of the 2nd and 3rd Respondents in forwarding the name of the Appellant, the 1st Respondent filed a Suit at the Federal High Court Asaba Division on the 19th of October, 2018.
The Appellant filed a Preliminary objection on the ground that the Respondent lacked the locus Standi to challenge the primary election and therefore the trial Court lacked the jurisdiction to entertain the Suit which was commenced by Originating Summons.
The lower Court took both the Preliminary objection and the substantive Originating Summons together and in a considered judgment delivered on the 18th day of March, 2019, gave judgment in favour of the 1st Respondent and granted all the reliefs Claimed.
Dissatisfied with that judgment, the Appellant commenced this appeal by a Notice of Appeal filed on the 27th of March, 2019.
The 1st Respondent raised Preliminary objection on the following grounds:
(a) The
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Appellant’s Brief of Argument filed on the 29/4/2019 was filed in gross violation of the Rules of this Honourable Court in that the brief does not contain the following mandatory components:-
(i) No index is contained in the brief
(ii) There is no conclusion in the brief
(iii) There is no list of authorities contained in the brief
or accompanying the brief.
(b) This appeal has become academic in that the general election has been held and the All Progressive Congress lost that election and did not file any election Petition to challenge the outcome of the general election, therefore a resolution or determination of the issues raised in this appeal one way or the other, will not confer any benefit or disadvantage in the parties to this appeal.
Learned Counsel for the 1st Respondent, O.J. Obodaya in his argument on the Preliminary Objection, contended, in summary that Order 19 of the Rules of this Court, 2016, makes it mandatory that a Brief of Argument must have the aforementioned contents.
On the second and main Prayer, counsel contended that the Courts are not given to dealing with academic issues where there
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are no more live issues in a case, the Court cannot be invited to make any determination in that case.
Reacting to the foregoing, learned counsel for the Appellant, Miss. S. I. Inwang submitted that the provisions of Order 19(2) of the Rules of this Court will only amount to an irregularity, he argued that technicalities must not be allowed to constitute a clog in the wheel of justice.
He cited OLANIYAN VS. OYEWOLE (2008) ALL FWLR (PT 399) at 503.
On the second arm of the Preliminary objection, counsel simply reacted by positing that the 1st Respondent ought to file an affidavit since his objection on the second arm was based on facts. He cited AMAH VS. NWANKWO (2007) LPELR ? 8225. He urged the Court to dismiss the preliminary objection and hear the appeal on the merits.
I have looked at the Appellant?s Brief of Argument filed on the 29th day of April, 2019. I agree with learned Counsel for the Appellant on his argument on that issue that the said Order 19 Rule 2 of the rules of this Court makes the issue of content of the brief only an irregularity.
Rules of practice and procedure are aimed at prescribing the procedure for
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determination and enforcement of rights and obligations which aid legal principles. Their compliance should not be aimed at defeating the end of justice and foreclosing fair trial of disputes. See OLANIYAN VS. OYEWOLE (2008) ALL FWLR (PT 399) AT 503.
The purpose of rules of Court is to expedite justice and to ensure that affairs of Courts are carried out in an orderly fashion. Thus the Court should not be enslaved to the rules or interpret same to cause injustice by shutting out the Claimant from prosecution and the Defendant from defending the Suit.
It is therefore my humble but firm view that the non-compliance pointed out by learned counsel for the 1st Respondent is a mere irregularity which I hereby waive.
On the second and main issue of the Preliminary objection which is that there are no more live issues in this appeal and therefore it has become academic. It should be noted from the submission of counsel on Record that the general election for the House of Assembly seat in contention took place on the 9th of March, 2019.
The second Respondent (All Progressive Congress) lost in that election. It is also on Record that the said 2nd
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Respondent (APC) did not file an election Petition to challenge the outcome of the election. In a question put to learned counsel for the Appellant on the 15/5/2019 in open Court as to whether the Appellant or his party filed an election Petition at the tribunal, counsel answered emphatically that neither the Appellant nor his party filed an election petition to challenge the outcome of the said election.
The effect of this failure to file a Petition at the election Petition tribunal to challenge the outcome of the election is that any decision by this Court one way or the other will not confer any benefit or detriment on any of the parties. It will simply amount to an exercise in futility.
Niki Tobi JSC in ADEOGUN VS. FASHOGBON (2008) 17 NWLR (PT. 1115) At Page 149 put this type of situation thus:
?Any judgment which does not decide a live issue is academic or hypothetical. It stands in its best quality only as an advisory opinion. This Court and indeed any Court in Nigeria, will not engage in rendering such judgment. There cannot be said to be a live issue in litigation if what is presented to the Court for a decision, when decided
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cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after litigation started.?
Similarly, Chukwuma-Eneh JSC in AGBAKOBA VS. INEC (2008) 18 NWLR (PT. 1119) Page 489 stated as follows:-
An action becomes hypothetical or raises a 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 controverted and leads to making of bare legal postulation which the Court should not indulge in, it is like salt that has lost its seasoning. And like 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.
It is therefore my view that going further to determine this matter on the merits holds no practical value whatsoever. The issues in this appeal have become obsolete and inoperative. There are indeed
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no live issues in this appeal for the simple reason that since the All Progressive Congress (APC) lost in the aforementioned election and did not file an election Petition, it follows therefore that any decision in this appeal will not confer any benefit or impairment on the parties. The appeal has become moribund.
There is merit in prayer (b) of this preliminary objection. The preliminary objection is hereby upheld.
The success of this preliminary objection for the reasons given renders a consideration of the substantive appeal unnecessary and purely academic.
This appeal is accordingly struck out.
I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU IHEME, JCA.
I am in entire agreement with the reasoning and conclusion reached at the lead judgment that this appeal is accordingly struck out. I also abide by the order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the opportunity of reading before now the judgment of my learned brother, Chioma Egondu
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Nwosu-Iherne, JCA., just delivered.
I agree that this appeal has become academic and, for the reasons given by my learned brother, I also dismiss it.
I abide by all the orders made in the leading judgment.
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Appearances:
MISS. S. I. INWANGFor Appellant(s)
O. J OBODAYA for the 1st RespondentFor Respondent(s)
Appearances
MISS. S. I. INWANGFor Appellant
AND
O. J OBODAYA for the 1st RespondentFor Respondent
