THE NATIONAL BOUNDARY COMMISSION v. THE HON. ATTORNEY-GENERAL OF ONDO STATE & ORS
(2015)LCN/8022(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of November, 2015
CA/B/135A/2008
RATIO
APPEAL: WHEN IS A MATTER OR APPEAL SAID TO BE ACADEMIC
A matter or appeal is equally to be academic if it has no bearing or relevance to practical situation of human nature to humanity. See PLATEAU STATE VS. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 346 @ 419; ODEDO VS. INEC (2008) LPELR – 2204 (SC). per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
THE NATIONAL BOUNDARY COMMISSION Appellant(s)
AND
1. THE HON. ATTORNEY-GENERAL OF ONDO STATE
(APPELLANT/CROSS-RESPONDENT)
2. MOSES TENE
3. WILLIAM ANUKUN
4. DR. (CHIEF) CHARLES D. IKOMI
(For themselves and on behalf of the Descendants of Prince Etseye Awuyo Sansan Onuje and the Ugbege Community)
5. THE ATTORNEY-GENERAL OF THE FEDERATION
6. BARRISTER D.O. ANOMUOGHARAN
7. MAJEMITE EKELE
(For themselves and on behalf of Moheme Community in Warri North Local Government Area of Delta State)
8. RICHARD UGEMUGE
9. MONDAY OROFIN
(For themselves and on behalf of Eketie Community in Warri North Local Government Area of Delta State)
10. FAKA PLUTSE
11. HENRY JAYE MADAMEDON
(For themselves and on behalf of Ekekporo Community in Warri North Local Government Area of Delta State)
12. ALFRED OMAGBEMI
13. S.A. EDUN
(For themselves and on behalf of Ebokiti Community in Warri North Local Government Area of Delta State)
14. YETSI NEJERE
15. ASIFOR PERRY
(For themselves and on behalf of Ototo Community in Warri North Local Government of Delta State)
16. THE ATTORNEY-GENERAL OF DELTA STATE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant cross-appeal, like the main appeal (CA/B/135/2008), is a fall-out of the Judgment of the Federal High Court, Benin Judicial Division, delivered on June 10, 2008 in Suit No. FHB/C5/118/2006 between all the respective parties herein. By the Judgment in question, the Lower Court, coram Chukura Nnamani, J; dismissed the Cross-Appellant’s and 1st Cross-Respondent’s Preliminary Objections (challenging the jurisdictional competence of the Lower Court), and granted all the declaratory and injunctive reliefs in favour of the 1st – 3rd and 5th – 15th Plaintiffs against the Defendants (Cross-Appellant, 1st & 4th Cross-Respondents), respectively. The Cross-Appellant was the 2nd Defendant in the Suit, and the 5th Respondent in the main appeal.
The Cross-Appellant’s brief of argument was filed on 23/12/13, but deemed properly filed and served on 10/3/15. It spans a total of 23 pages. At pages 5 – 6 of the said brief, three issues have been postulated, viz:
Issue I – In view of the fact that this action was commenced by Writ of Summons and that no evidence – oral or
documentary was adduced in support of the facts pleaded, whether or not the trial Judge was right in giving Judgment in favour of the 1st set of the Plaintiffs (1st – 3rd Respondents) and also by granting joinder when there was a pending motion for stay of further proceedings filed by the Appellant (Grounds 1, 2 and 3).
Issue II – Judging from the fact that there was a pending preliminary objection filed by the 2nd Defendant/Cross Appellant, whether the trial Judge was right when he dismissed the preliminary objection and held that the court has jurisdiction, substituted pleadings for evidence and thus held that the issue was a non-compliance with Section 8(2) of the 1999 Constitution (Grounds 4, 5 and 6).
Issue III – Having regard to the fact the action was commenced by Writ of Summons whether or not the trial Judge was right in converting the Writ of Summons to originating summons, thus resulting in the joinder of the 2nd set of Plaintiffs based solely on their motion for joinder, against operative rules of court (Grounds 7 and 8)
The issue No. 1 is canvassed at pages 6 – 9 of the said brief to the conclusive effect the 2nd set of Plaintiffs
did not lead evidence to establish their pleadings, thereby rendering their case otiose. The court is urged to so hold, and accordingly resolve the issue in favour of the Cross-Appellant.
The Issue No. 2 is argued at pages 9-16, to the conclusive effect that non-compliance with Section 8(2) of the 1999 Constitution was inappropriately invoked by the 1st – 3rd Respondents, and should thus be disregarded.
The Issue No. 3 was canvassed at pages 16-19 of the brief to the conclusive effect that the Lower Court clearly acted in adherence to the principle enunciated by the Apex Court in UCHENDU VS. OGBONI (1999) 5 NWLR (Pt. 603) 337 @ 352 per Uwaifo, JSC. The court is thus urged to resolve the said Issue in favour of the Cross-Appellant and accordingly allow the Cross-Appeal.
On the other hand, Chief I.O. Jemide, Esq; filed on 20/3/15, what he termed –
“5TH – 14TH RESPONDENTS’ REPLY TO CROSS-APPELLANTS’ BRIEF OF ARGUMENT.”
The said brief spans a total of 29 pages. At pages 5 – 6 of the said brief, the learned counsel copiously adopted the three issues raised and argued by the Cross-Appellant in the brief thereof. The court is urged upon
to hold that the cross-appeal has failed on all the three issues raised, and should thus be dismissed by this court.
I have critically, albeit dispassionately, considered the circumstances surrounding the cross-appeal, the argument canvassed in the two respective briefs vis-?-vis the records of appeal, as a whole. I would want to hold that in view of the fact that the substantive appeal has been conclusively determined and dismissed by this court just a moment ago, the instant cross-appeal has become nugatory and rather a sheer wasteful exercise. In substance, the same issues or points of law raised in the present cross-appeal have been extensively dealt with and determined in the main appeal (CA/B/135/2008). The parties were equally the same parties in both the main appeal and the cross-appeal. Thus, the decision in the main appeal in question (CA/B/135/2008) binds the cross-appeal. See OKOROCHA VS. OHAKIM: (2014) LPELR – 22057 (SC); OHAKIM VS. PDP: (2014) LPELR – 22058 (SC).
Instructively, a matter or appeal is said to be academic where it is merely theoretical, full of empty sound and jury, but virtually of no practical utilitarian
significance to the Plaintiff or Appellant, even if Judgment is given in favour thereof. A matter or appeal is equally to be academic if it has no bearing or relevance to practical situation of human nature to humanity. See PLATEAU STATE VS. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 346 @ 419; ODEDO VS. INEC (2008) LPELR – 2204 (SC).
Most especially, in the latter case of ODEDO VS. INEC (Supra), it was aptly held by the Apex Court, thus:
“An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.” Per Niki Tobi, JSC @ 36 paragraphs C – G.
Hence, having deemed the cross-appeal nugatory and a sheer academic exercise, it’s hereby struck out.
Parties shall bear the respective costs thereof.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, a copy of the lead judgment of my Lord
IBRAHIM MOHAMMED MUSA SAULAWA, JCA just delivered.
My lord has dealt with the substantive appeal (CA/B/135/2008) conclusively, therefore the cross-appeal has become academic and it is also struck out by me.
There shall be no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have been opportuned to read the draft copy of the judgment just delivered by my Learned Brother I.M.M. SAULAWA, JCA where he deemed the cross-appeal nugatory, an academic exercise and finally struck it out.
I too am of the ardent view that since the same issues had been raised and fully determined in the main appeal and cross-appeal, the decision in the main appeal thus binds the cross appeal. His Lordship has however ploughed through the matter with a fine tooth comb and I have nothing else more useful to add than to throw my weight behind the reasoning of my lord that any further argument touching and concerning the cross appeal is of no moment and will be deemed an academic discourse.
The cross appeal is hereby struck out and I abide by his Lordship’s order as to costs.
Appearances
Mary Bamitale Baiyekusi
For Cross Appellant
Chief Wole Olanipekun SAN
Dr. Ifeoluwa Koni
?For Appellant/Cross Respondent
Professor I.E. Sagay SAN
P.B.A Ademi-Aipeto
2nd-4th Cross Respondent
Dr. Nasiru Aliyu
5th Cross Respondent
Chief I.O. Jemiole
6th-15th Cross Respondent
A. Akpomuje, SAN Esq
I.D. Tuggen
N.O. Asabozo
16th Cross Respondent
?7
Appearances
Mary Bamitale Baiyekusi for Cross-Appellant.For Appellant
AND
Chief Wole Olanipekun, SAN with him DR. Ifeolu Koni for the Appellant/Cross Respondent.
Professor I.E. Sagay SAN with P.B.A. Ademi-Aipeto for 2nd – 4th Cross-Respondents.
Dr. Nasiru Aliyu for the 5th Cross-Respondent.
Chief I.O. Jemiole for 6th – 15th Cross-Respondents.
A. Akpomuje, SAN ESQ; with I.D. Tuggen and N.O. Asabozo for the 16th Cross-Respondent.For Respondent
