UJAH & ANOR v. UNIJOS & ANOR (2020)

UJAH & ANOR v. UNIJOS & ANOR

(2020)LCN/15707(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/J/340/2017

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

MudashiruNasiruOniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

1. PROFESSOR INNOCENT ACHANYA UJAH 2. THE INCORPORATED TRUSTEES OF THE NIGERIAN MEDICAL ASSOCIATION APPELANT(S)

And

1. UNIVERSITY OF JOS 2. PROFESSOR HAYWARD B. MAFUYAI RESPONDENT(S)

RATIO:

CHALLENGING THE JURISDICTION OF THE COURT

I have read the Form 48 and the Ex-parte motion filed by the plaintiffs on 29/5/2016 and would like to say for the record that the Court did notmake order ordering the Defendants to stay action on the process for the appointment of the Vice Chancellor of the 1st defendant. This is because the Court has made it clear right from the beginning on 24/4/2016 that it cannot make any valid any order since its jurisdiction to hear the case is being challenged. However, for the sake of emphasis and to avoid misunderstanding of the situation to ordering the defendants to stay action on the appointment of the Vice Chancellor of the 1st defendant if it was actually made, must have been made in error and is hereby set aside for an obvious reason. So the issue of Form 48 or Notice of appeal against the order does not arise.” BOLOUKUROMO MOSES UGO, J.C.A.

THE COURT CAN SET ASIDE ITS ORDER IF IT’S A NULLITY

While it is true that as a general principle a Court has no legal right or competence to reverse itself or set aside its previous order or judgment, it is settled beyond disputation that the Court can set aside its order or judgment where it is a nullity because, among others, it acted without jurisdiction: see Attorney General of Anambra State v. Okafor (1992) 1 NSCC 264 @ 284; Purification Technique (Nig.) Ltd v. Attorney General of Lagos State (2004) 9 NWLR (PT 879) 665 @ 676. BOLOUKUROMO MOSES UGO, J.C.A.

RAISING AN OBJECTION AT THE TIME THE ORDER OF COURT IS BEING SOUGHT

It is therefore incumbent on any person who is against their transmission out of time to object at the time the order of Court is being sought. If such person(s) with their eyes open do not object but even inform the Court as the respondents did on 01/3/2018 that they are not opposed to the same records being transmitted to this Court for its use, they will just have to hold their peace for all times. That is the purport of Order 21 r. 5(1) of the Rules of the Court of Appeal 2016 and the cases of C.C.B. (Nig.) Plc v. A-G., Anambra State [1992] 8 NWLR (pt. 261) 528 at 547 and Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 at page 545. At any rate, it has to be noted, too, that there was a second Prayer in the 14/11/2017 application of appellants for transmission of records. That prayer read:
An order deeming the Record of Appeal transmitted from the Federal High Court (Bauchi Division) to the Court of Appeal as having been duly compiled and transmitted, all necessary fees having been paid. BOLOUKUROMO MOSES UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court Bauchi Division delivered by M. Shitu Abubakar, J., on the 11th day of January, 2017 in suit No. FHC/J/CS/23/2011 striking out appellants’ originating summons filed in that Court six years earlier, on the ground that the said summons had become spent and academic by reason of supervening events.

The contention of the Appellants in their said summons was that 1st Appellant and all Professors of Medicine and Dentistry (members of the 2nd Appellant) were unfairly excluded from participating in the process of selecting a Vice-Chancellor for 1st Respondent (the University of Jos) by its imposition of a condition requiring that all applicants for its Vice-Chancellorship must possess a PhD to be eligible to apply for the post. Appellants were of the view that having regards to the official ranking of qualifications by the 1st Respondent, which ranked Professorship of Medical Doctors higher than a PhD, the condition imposed by the 1st Respondent restricting eligibility to candidates who possess a PhD only was unlawful and discriminatory against the Appellants.

They thus by their originating summons filed in 2011 sought answers to the following questions:
1. Whether or not, having regard to Section 4 (2)(a)(i) of the University of Jos Act, CAP U8, 1979, it is ultra vires the powers of the 1” Defendant in advertising the vacancy for the post of Vice-Chancellor to specify criteria relating to the “qualification” of candidates as opposed to criteria specifying the “qualities” of the candidates.
2. Whether, having regard to Section 4 (2)(a)(i) of the University of Jos Act, CAP U8, 1979, the criteria specified in item (i) of the 1st Defendant’s advertisement (Exhibit NMA1) do not constitute criteria relating to “qualification” of candidates for the post of Vice-Chancellor as opposed to criteria relating to their “qualities”.
3. Whether having regard to Section 4 (2)(a)(i) of the University of Jos Act, CAP U8, 1979, the requirement of a PhD specified in item (iii) of the 1st Defendant’s advertisement (Exhibit NMA1) does not constitute a criterion relating to “qualification” of candidates for the post of Vice Chancellor as opposed to a criterion relating to the “quality” of a candidate.
4. Whether, having regard to the 1st Defendant’s letter (Exhibit NMA9) ranking the qualification of Professors of Medicine and Dentistry higher than PhD, the 1st Defendant was right to disqualify the 1st Plaintiff and other Medical and Dental Practitioners (members of the 2nd Plaintiff) from applying as candidates to the post of Vice-Chancellor by virtue of its advertisement (Exhibit NMA1).
5. Whether or not, having regard to the facts of this case the selection and appointment of the 2nd Defendant as Vice-Chancellor of the University of Jos by its Council is illegal, null and void.
6. Whether, having regard to the law and the facts of this case, the Plaintiffs are entitled to the grant of an Order setting aside the appointment of the 2nd Defendant as Vice-Chancellor of the University of Jos by the 1st Defendant.
7. Whether, having regard to the law and the facts of this case, the Plaintiffs are entitled to the grant of an Order of perpetual injunction to restrain the 1st Defendant from excluding the 1st Plaintiff and Medical and Dental Practitioners (members of the 2nd Plaintiff) from applying for the post of the Vice-Chancellor of the University of Jos.
8. Whether the Plaintiffs are entitled to the grant of an Order of perpetual injunction to restrain the 1st Defendant from publishing any advertisement for the post of Vice-Chancellor of the University of Jos which specifies criteria for the qualification of candidates other than the qualities of candidates as stipulated under Section 4 (2)(a)(i) of the University of Jos Act, CAP U8, 1979.

If the answer of Question 1, 2, 3, 5, 6, 7 and 8 are in the affirmative and the answer to Question 4 is in the negative, the Plaintiffs jointly and severally claim the following reliefs:
1. A Declaration that it is ultra vires the powers of the 1st Defendant (through its Council) to specify criteria relating to the “qualification” of candidates as opposed to their “qualities” in advertising the vacancy for the post of Vice-Chancellor.
2. A Declaration that the criteria specified in item (i) of the 1st Defendant’s advertisement (Exhibit NMA1) constitute requirements as to qualification of candidates as opposed to their qualities for the post of Vice Chancellor.
3. A Declaration that the criteria specified in item (iii) of the 1st Defendant’s advertisement (Exhibit NMA1) constitute requirements as to qualification of candidates as opposed to their qualities for the post of Vice Chancellor.
4. A Declaration that, having regard to the 1st Defendant’s letter (Exhibit ‘NMA9) ranking Professors of Medicine higher than PhD, it was wrong for the 1st Defendant to exclude the 1st Plaintiff and Medical and Dental Practitioners (members of the 2nd Plaintiff) from applying as candidates to the post of Vice-Chancellor by virtue of its advertisement (Exhibit NMA1).
5. An Order setting aside the criteria specified in item (i) of the 1st Defendant’s advertisement (Exhibit NMA1) as a requirement for Candidates applying for the post of Vice-Chancellor,
6. An Order setting aside the criteria specified in item (iii) of the 1st Defendant’s advertisement (Exhibit NMA1) as requirements for candidates applying for the post of Vice-Chancellor.
7. An Order setting aside the appointment of the 2nd Defendant as Vice Chancellor of the University of Jos by the 1st Defendant.
8. An Order directing the 1st Defendant to re-advertise the vacancy for the post of Vice Chancellor of the University of Jos specifying the qualities of the persons who may apply for the post to the exclusion of the criteria specified in items (i) and (iii) of Exhibit NMA1.
9. An Order of perpetual injunction restraining the 1st Defendant from excluding the 1st Plaintiff and Medical and Dental Practitioners (members of the 2nd Plaintiff) from applying for the post of Vice Chancellor of the University of Jos.
10. An Order of perpetual injunction restraining the 1st Defendant from publishing any advertisement specifying the qualification of candidates for the post of Vice-Chancellor as opposed to their qualities only as provided under Section 4 (2)(a)(i) of the University of Jos Act, Cap. U8, 1979.

Appellants filed along with their summons applications for interlocutory injunction restraining 1st Respondent from (1) excluding 1st appellant and members of 2nd appellant from the selection process for its Vice Chancellorship or taking any steps towards the appointment of its Vice Chancellor pending the pending the determination of the suit.

Respondents filed counter affidavits to both the summons and the application for interlocutory injunction. First respondent on its part in addition even challenged the jurisdiction of the Federal High Court to entertain the action. It contended from the outset that the proper forum for hearing of appellants’ action is the National Industrial Court and not the Federal High Court.

While that application challenging its jurisdiction was pending, Allagoa, J., of the Jos Division of the Federal High Court heard appellants’ motion for interlocutory injunction and refused it on the grounds that since the process for the appointment of 1st Respondent’s Vice Chancellor sought to be restrained by appellants’ suit had already been concluded with the appointment of 2nd Respondent, injunctive order could no longer lie. Following that ruling, appellants successfully petitioned the Chief Judge of the Federal High Court and the case was subsequently transferred to the Federal High Court, Bauchi Division.

Along the line, Respondents published another advertorial for the process of appointment of another Vice Chancellor of 1st Respondent. This time, it dropped the controversial requirement of possession of PhD by applicants.

Appellants, still believing that the said exercise would destroy the subject matter of their suit, filed at the lower Court a motion Ex-parte dated 8th April, 2016 for an order of Interim Injunction to restrain the Respondents from continuing with the selection process pending the determination of their motion. The said motion ex-parte came up for hearing on April 20th, 2016 and the lower Court ordered Respondents to appear on April 21st, 2016 to Show Cause why an order of injunction should not be made against them. After hearing arguments from the parties on April 21st 2016, the trial Court ordered Respondents to refrain from conducting or continuing to conduct the selection process for appointing a Vice-Chancellor pending the determination of the suit. Respondents however went on to conduct their election for a new Vice chancellor, with one Professor Dakum, a member of 2nd appellant without a PhD, also taking part in it.

Subsequently, appellants filed a motion on notice dated 7th June 2016 to amend their Originating Summons to include new facts brought about by this new selection of Vice Chancellor by 1st Respondent and to seek what they deemed consequential reliefs flowing from it. Being out of time in doing that, they also filed a Motion dated 30th June, 2016 for an order extending time and to deem a counter affidavit on Points of Law as duly filed and served.

Respondents, in response, not only filed Counter Affidavit and Written Address in opposition to the motion for amendment; they also filed a motion on notice dated 30th June, 2016 for an order to dismiss Appellants’ suit on the ground that it had become an academic exercise as its substratum had gone by the removal of the PhD requirement and the subsequent selection and emergence of a new vice chancellor the process of which 2nd appellant’s member also participated.

When the suit came up for hearing on 11th of October 2016, appellant argued only their Motion on Notice for extension of time to file a Reply on Points of law while Respondents argued their motion to strike out the suit.

Ruling on the two applications on 11/1/2017, the lower Court refused to grant leave to appellants to file their Reply on points of law but granted respondents’ application to strike out the originating summons on the grounds that it had been overtaken by events (1) with the withdrawal by 1st respondent of the PhD requirement for candidates to contest its vice Chancellorship and (2) the expiration of the five-year term of office of 2nd respondent and emergence of a new vice Chancellor of 1st Respondent in the person of Professor Sebastian S. Maimako whom he described as ‘the man of the moment and centre of attraction’ yet was not joined.

Appellants are dissatisfied with that decision hence this appeal of seven grounds from which they framed the following three issues for us to determine:
1. Whether the trial judge was right in law to have dismissed their suit by placing undue reliance on the wrongful act of the respondents of destroying the res the subject matter of the suit during the pendency of the suit and in disobedience of a valid and subsisting Court order.
2. Whether they were not denied a fair hearing when the learned trial judge refused to grant extension of time to them to file a reply on points of law and failed/refused to hear their motion to amend the originating summons and dismissed their suit without hearing the substantive suit on the merits.
3. Whether by failing to hear their case on the merits, to evaluate the evidence adduced before him by the parties and to draw the correct inferences, the learned trial judge arrived at a wrong conclusion when he struck out/dismissed their suit on the ground that the suit had become academic, hypothetical and of no utilitarian value.

Respondents first raised a preliminary objection to the appeal on the grounds that:
(1) Leave of Court was needed to file it but no such leave was obtained so the appeal was invalid and null and void.
(2) That appellants’ notice of appeal is not a direct challenge to the decision of the lower Court and so incompetent and this Court without jurisdiction to entertain it.
(3) That omnibus Ground 1 of the notice of appeal complaining that the decision of the trial judge is against the weight of evidence is incompetent since the trial Judge did not hear the case on its merits and so did not, according to them, evaluate evidence to warrant a complaint of improper evaluation of evidence.
(4) That no valid issue(s) was formulated by appellants from Grounds 1, 2, 4, 5 and 7 of their notice of appeal so those grounds are deemed abandoned.
(5) That (a) the two volume records of appeal before this Court is invalid same having not been ‘completely’ certified by the lower Court and so inchoate; and (b) that the said records of appeal before this Court are equally incompetent because appellants by their application of 14/11/2017 which was granted on 13/3/2020 (nothing of such happened on 13/3/2020) only sought, and were granted by this Court an order extending time for them to transmit, and not to compile, records.

Resolution of the Preliminary Objection
I think this preliminary objection can be quickly overruled, for I am not persuaded that it has any merit. First, on the argument that appellants needed leave to file their appeal; Respondents did not elaborate on what made leave necessary in this appeal that is against a final decision of the High Court of Plateau State sitting as a Court of first instance. By Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) appeallies as of right against any final decision of the High Court sitting as a Court of first instance, regardless of the type of issues raised in the appeal: see Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (PT 91) 622 (SC); Ikweki v. Ebele (2005) 11 NWLR (PT 936) 397 @ 422 -435. The decision of the lower Court sitting as a Court of first instance striking out appellants’ action on the grounds that it had been overtaken by events and so rendered academic being a final decision of that Court, appellants did not need leave of Court to appeal against it.

On their second contention that appellants’ notice of appeal is not a direct challenge to the decision of the lower Court and so incompetent and this Court is without jurisdiction to entertain it, the seven complaints of appellants in their original notice of appeal filed on 22/2/2017 as well as the amended one filed with the order of this Court on 13/3/2020 are that:
1. The judgment is against the weight of evidence;
2. That the trial judge relied on what they deem as wrongful acts of respondents in striking out their action (Ground 2);
3. That the trial judge was wrong in pronouncing their action academic, hypothetical and of no utilitarian value;
4. That the trial judge erred when he struck out their case without hearing their motion to amend their originating summons and so violated what they called doctrine of lis pendens;
5. That the learned trial judge erred, too, by striking out their summons without hearing it on its merits and so breached their right to fair hearing;
6. That he also erred and denied them fair hearing when he refused to grant their application to file their reply on points of law and counter affidavits in opposition to respondent’s motion dated 9th June 2016 and to deem same as duly filed and proceeded to strike out their summons;
7. That the trial judge erred in law and misdirected himself when he held that they, appellants, did not respond to respondents’ argument of removal of the all-important criteria of appointment of Vice Chancellor and so have admitted it.

It cannot be seriously argued that these complaints do not arise from or are not related to the Ruling of the lower Court. A ground of appeal, it is now settled, may arise from:
1. The text of the decision;
2. The procedure under which the claim appealed against was initiated;
3. The procedure under which the decision was rendered;
4. Other extrinsic features such as jurisdiction of the lower Court;
5. Commission or omission by the lower Court in either refusing to do what it ought to do or doing what it ought not to do or vice versa.
See Akpan v. Bob (2010) 17 NWLR (PT 1223) 421 @ 462 (Tanko Mohammad, J.S.C. (now CJN). I hold that all seven grounds of appeal of appellants are related to the ruling of the lower Court.

I also fail to see serious substance in their argument that Ground 1 of appellants, where they complained that the judgments is against the weight of evidence, is unavailing because no evidence (I take them to mean no oral evidence from the witness box) was led so weighing of evidence cannot be said to have been done by the lower Court to warrant that complaint.

Appellants by this argument seem to assume that it is only oral evidence proceeding from witnesses in the witness box that is weighed. They forget that evidence could also be by way of deposition in affidavits in support of applications and even witness statements filed in the case as in the instant one and that whichever form evidence in an action or application takes, it must necessarily be evaluated and weighed one against the other by the Court before it can arrive as its decision accepting one version of events and rejecting the other. It is therefore not by any means out of place for a litigant dissatisfied with a decision emerging from that process to complain on appeal that the decision was against the weight of evidence as the appellants have done with their Ground one.

In this case, the Ruling of the lower Court of 11/1/2017 that is the subject of this appeal was predicated on two motions on notice which were supported by evidence in the form of sworn affidavits all of which were opposed with counter affidavits. Those affidavits were all utilized by the trial judge in arriving at the decision he took in his ruling that is the subject of this appeal (See pages 1189 – 1209 of the records). It is therefore misleading for respondents to suggest that appellants’ complaint that the trial judge did not weigh the said affidavit evidence or do so properly in arriving at his decision is unavailing to them.

Respondents’ contention that no valid issue(s) was/were formulated by appellants from Grounds 1,2,4,5 and 7 of their notice of appeal is also misconceived, for it cannot be also seriously asserted that the three issues formulated by appellant earlier reproduced are not related to these grounds.

I do not also see substance in respondent’s final complaint that the two volume records of appeal before this Court is invalid because they have not been ‘completely’ certified by the Registrar of the lower Court and further that appellants by their application filed on 7/3/2018 but granted on 13/3/2018 only sought order extending time for them to transmit, and not to compile, the records from the lower Court to this Court for its use so it was inchoate. First, as regards respondents’ contention that appellants by their application of 14/11/2017 only applied for, and that this Court by its order of 01/3/2018 (Not 07/3/2020 as wrongly stated by respondent’s in their brief of argument) only granted appellants’ order to ‘transmit’ records so the absence of order for extension of time to compile records rendered the said records invalid, it has to be noted that records can only be transmitted after they have been compiled.

Respondents, on 01/3/2018when that application was moved by appellants, announced to this Court that they were not opposed to that prayer, too, so the application was ‘granted as prayed’ and the Records ‘deemed duly compiled and transmitted’ from the Federal High Court (Bauchi Division) to the Court of Appeal all necessary fees having been paid. It is therefore too late for them to complain that there should have been a specific prayer for extension of time to compile records before transmission of the same records. They cannot approbate and reprobate.

As for the issue of certification of records, Respondents’ complaint is not that the said records are not certified at all; they only complain that they are not ‘completely’ certified. Meanwhile they have not even raised any doubt about the authenticity of those records nor pinpointed the particular portions of the records that are uncertified. This Court cannot do all that for them. In the event, their complaint remains hollow and is hereby rejected.

In effect, the preliminary objection lacks merit and is hereby overruled.

That takes me straight to the two issues respondents framed for determination in the appeal in case their preliminary objection was overruled as it has been done. Their two issues are:
1. Whether from the entire circumstances of this case the learned trial judge of the Federal High Court was right in dismissing the application of the appellant for leave to file a Reply to Respondent’s counter affidavit dated 9th June 2016.
2. Whether the learned trial judge of the Federal High Court was right in striking out the suit for being incompetent upon the application of the respondents and having regard to the entire circumstances.

Much as I prefer the more direct framing of the issues for determination by respondents, let me first quickly summarize the arguments of both parties for and against the appeal.

The argument of appellants on their issue 1 is that, their originating summons at the lower Court challenged the disqualification of Professors of Medicine and Dentistry and all members of the 2nd appellant from participating in the process of selecting a Vice Chancellor of 1st respondent; that during the pendency of that action, the lower Court, upon their application, on 21st April 2016,ordered Respondents not to conduct the selection process until the suit was determined; that having so ordered, the Respondents, based on the principle of lis pendens, ought to have stayed any action on the said selection process; that rather, respondents went ahead to appoint its new Vice Chancellor during the pendency of the litigation, against the strictures in Ogundiani v. Araba (1978) 6-7 S.C. 555 @ 74. The lower Court, they thus argued, was wrong in striking out their action on the grounds that it had been overtaken by events, namely respondents’ wrongful selection of a new vice chancellor for 1st respondent in disregard for its order. They prayed us to remedy that ‘injustice’ and resolve this issue in their favour and allow the appeal.

On their issue 2, appellants argued that the trial judge denied them fair hearing when (1) he refused to grant them extension of time to file their reply on points of law to respondent’s application to strike out their summons and, (2) refused to hear their motion to amend their Originating summons and rather ‘dismissed’ their suit without hearing it on the merits. Starting with the reply on points of law which the trial judge held was neither dated nor signed and so is a worthless document, they submitted that their said reply was duly signed and sealed by their counsel D.E. Dawuk and filed as a separate process and even filing fees paid for it. They said it is that separately filed reply on points of law they wanted the Court to deem as properly filed and referenced in Prayer 2 of their motion for extension of time so the trial judge was wrong in his decision that the reply annexed to their motion as exhibit DG1 was not signed so it was worthless thus making their application to file it not grantable. At any rate, they further argued, if that reply was not signed it was a mistake of counsel which the Court ought not to have visited on the parties. By refusing to extend time for them to file their said reply on points of law, they argued, the Court denied them fair hearing.

Coming to the application to amend their originating summons which the trial judge also refused, they argued that the amendment sought by them was to enable them plead new facts occasioned by respondents’ threat to the subject matter of their action and to seek further consequential reliefs arising from them; that by the trial judge’s decision to dismiss their suit, he not only denied them their right to fair hearing of their action on its merits and so breached Section 36 of the 1999 Constitution of this country, he also failed to take cognizance of the rule of priority of hearing of applications, that where one application seeks to breathe life into an action (as their application, according to them, sought to do) and another (as in Respondents’ motion) seeks to kill it, the one that is constructive or seeks to save the suit ought to be heard first. Where right to fair hearing is breached, they submitted and cited Ndukauba v. Kolomo (2005) 4 NWLR (PT 915) 411 @ 428, it is as if the hearing never took place and must be declared null and void and set aside and we should do that.

On their issue 3, they argued that the trial judge shirked his duty of properly evaluating the facts of the case when he held that their action had been overtaken by events and become academic because it was filed to challenge the action of 1st Respondent in making possession of a PhD criteria for its Vice Chancellorship post; that since that criteria had been dropped by 1st Respondent, the case had become academic. They argued that that conclusion was wrong and based on improper evaluation of their originating summons. They submitted that their action not only challenged the inclusion of PhD as a criterion for 1st Respondent’s Vice Chancellorship post but also the right of 1st respondent through its Governing Council to lay down criteria for qualification of persons seeking appointment into the office of Vice Chancellor, as opposed to merely ‘qualities’ of such persons as provided by the Law establishing 1st Respondent. Had the trial judge properly adverted himself to the questions raised and reliefs sought by them in their summons, they submitted, his decision would have been different. They thus urged us to hold his decision perverse, set it aside and exercise our undoubted powers of reevaluation of summons and the evidence in support of it, answer in their favour the questions they posed in it and enter judgment for them as claimed by them in the originating summons.

In REPLY and starting with their issue 1 regarding the correctness of the decision of the lower Court holding appellant’s motion for extension of time to file their reply on points of law not grantable because it was not signed and so worthless, respondents first identified the said motion of appellants contained at pages 1152 -1161 of the records and submitted that that application was intrinsically deficient and even its two prayers at cross purposes.

To buttress that argument, they pointed out, while Prayer 1 of the said motion sought extension of time to file appellants’ reply on points of law; its Prayer 2 sought a deeming order in respect of a supposed counter affidavit purportedly filed separately by appellants. Second, that while paragraph 7 of the affidavit supporting the said motion referenced a counter affidavit prepared and filed in Reply to Defendants’ Counter Affidavit purportedly marked Exhibit DG1, what was actually attached to appellants’ affidavit in support of their motion was their Reply on points of law and not a counter affidavit as erroneously deposed in paragraph 7 of the affidavit supporting. The third and fatal blunder in the said application, they submitted, is that the said purported Reply on points of law, Exhibit DG1, which spans pages 1173-1176 of the records, is in fact neither dated nor signed and so a worthless document as the trial found.

They stated that even appellants’ counsel, Mr. Pam., admitted this error in appellants’ motion while arguing it on 11/10/2016 when he said (as shown in page 1185 lines 6-16 of Vol. 2 of the records) that “by this exhibit, we submit that prayer 1 is in error.” The trial judge was therefore correct, they submitted, when he held the said undated and unsigned reply on points of law worthless and their application not grantable. They cited the cases of Ojo v. Adejobi (1978) 3 S.C (REPRINT) 47 @ 51, and Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) 8 NWLR (PT 928) 547 @ 576 (SC) to buttress their argument that an unsigned document is really worthless.

As for the appellants’ complaint that they were denied fair hearing of their motion dated 7/6/2016 to amend their originating summons, respondents argued that not only is that argument not related to issue 2 of appellants where it was argued, appellants by themselves in fact abandoned that application for amendment of their summons by failing to argue it on 11/10/2016 when they had the opportunity to move it. They said appellants on 11/10/2016 elected to move only their motion filed on 1/7/2016 to file Reply on points of law and to deem a supposed counter affidavit. They referred us to pages 1185-1188 for proof of that. That apart they said, appellants in fact fully argued their substantive amended originating summons on 21/4/2016 as shown at pages 776 – 779 of Vol. 2 of the records so they cannot complain of denial of fair hearing that they were not allowed to argued their originating summons. Appellants, they said, have only themselves to blame; that they were not denied fair hearing by the lower Court.

On their issue 2, respondents submitted that having regards to the circumstances of the entire case before the lower Court, particularly the fact that appellants’ action was filed in 2011 to challenge the exclusion of Professors of Medicine and Dentistry and all members of the 2nd appellant from participating in the process of selecting a vice Chancellor of 1st respondent in the 2011, which criteria had to the knowledge and admission of appellants longremoved by 1st respondent as a result of which even a member of 2nd appellant’s body, Professor Nuhu KutanDakum, participated in the selection process that resulted in the appointment of 1st Respondent’s new Vice Chancellor, the summons of the appellants had been truly overtaken by events and their suit rendered academic and the lower Court in order in striking it out. The Court, they submitted, cannot spend its time deciding academic issues.

On the complaint that the lower Court was wrong in not upholding its 21st April 2016 order directing them, respondents, not to proceed with the process of appointing a new Vice Chancellor for 1st respondent pending the determination of the suit, they submitted not only did they appeal against that order and even applied for stay of its execution, even the trial judge recognized that the said order must have been made in error since his jurisdiction over the case was being challenged by respondents and even expressly set the said order aside on 31/5/2016 before his final ruling of 11/01/2017, so he was in order and this issue should be resolved against appellants.

Resolution of issues
I have indicated earlier that I prefer the more precise formulation of issues by respondents. I shall therefore adopt their two issues which, I am of the view, adequately reflect all appellants’ seven grounds of appeal and the three issues they framed from them. Those two issues are:
1. Whether from the entire circumstances of this case the learned trial judge of the Federal High Court was right in dismissing the application of the appellant for leave to file a Reply to Respondent’s counter affidavit dated 9th June 2016.
2. Whether the learned trial judge of the Federal High Court was right in striking out the suit for being incompetent upon the application of the respondents and having regard to the entire circumstances.

Starting from what I will rather call ‘minor’ issue 1, I fail to see any substance in the blame appellants are trying to apportion on the lower Court in refusing to grant their application to file reply on points of law. The said reply on points of law annexed as Exhibit DG1 to the affidavit in support of appellants’ application dated 01/7/2016 but filed 07/7/2016, which application was argued by appellants on 11/10/2016 and ruled upon by the lower Court on 11/01/2017, actually shows on its face that it was neither dated nor signed. Such a document, by the state of the authorities (see Ojo v. Adejobi (1978) 3 S.C (REPRINT) 47 @ 51, and Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) 8 NWLR (PT 928) 547 @ 576) is a worthless document as the lower Court correctly held. Their contention that they filed a signed copy of that same process is also neither here nor there, for they did not refer us to any portion of the records that contains it. In fact I did not also come across it.

Regarding their complaint that the lower Court denied them right to be heard on their amended originating summons and to further amend it, I again note that, as attested to by pages 773 to 779 of the records of appeal, appellants represented by one Mrs. Kaka on 21/4/2016 fully argued their said amended originating summons before the lower Court and concluded it with a prayer that the reliefs therein contained be granted as claimed. They cannot therefore seriously assert that they were denied right of hearing on that summons.

And coming to their application filed on 8/6/2016to further amend that originating summons that was already earlier adjourned for judgment, again the records of the lower Court contained at p.1185 reveal that appellants seemed to abandon it, for on 11/10/2016 appellants represented by their lead counsel Mr. Pam, knowing well that respondents had a motion seeking to terminate their entire action on grounds that it had become academic by reason of supervening events, plainly told the lower Court that they had two applications, “one filed on 1/7/2016 and the other one was filed on 8/6/2016 seeking to amend the originating summons.” Counsel then immediately went on to inform the Court that:
“We are ready to move the application filed on 1/7/2016.”

In line with that promise, appellants only moved their application of 1/7/2016 to file reply on points of law and counter affidavit and said nothing about their application of 8/6/2016 seeking to amend the originating summons until the case was adjourned later that day for ruling on appellants’ motion and respondents’ counter motion to strike out and so terminate their originating summons for being spent and academic. In those circumstances, it can only be assumed that appellants abandoned their application for further amendment of their already argued originating summons or were at least willing to let it abide the fate of respondents’ application to terminate it. They cannot therefore be heard to complain about breach of principle of priority of hearing opposing applications and or that they were denied fair hearing of their said motion for amendment. In the event, issue 1, which is appellants’ issue 2,is resolved against appellants.

In answering the complaints raised by appellants in their issues 2 and 3 which is issue 2 of respondent, I deem it necessary to first make the point that the doctrine of lis pendens, with its effect of nullifying any action taken in breach of it, which appellant laid so much emphasis on, is limited in its application to only actions to recover title to real property and not to actions of the type we have. That much, Idigbe, J.S.C., who also read lead judgment of the apex Court in Ogundiani v. Araba & Adam Badejoko Ashiru (1978) LPELR-2330 (SC) cited by appellants in support of their contention, made clear in Barclays Bank of Nigeria Limited v. Adam Badejoko Ashiru & Ors (1978) 6-7 S.C. (REPRINT) 70; LPELR-752 (SC) @ p. 34, saying:
“… the doctrine of lis pendens does not apply to every suit. It applies to a suit in which the object is to recover or assert title to a specific property; the property however, must be real property, for the doctrine has no application to personal property.”
See also Oronti v. Onigbanjo (2012) 12 NWLR (PT 1313) 23 @ 37 @ 43para D-E (SC).

And coming to the other limb of their complaint that the trial judge made an order restraining respondents so he was bound to uphold it and not strike out their action on the grounds that events had overtaken it, it has to be noted that the trial judge, recognizing that his previous order of stay of 21/4/2016 was made in error since respondents were even challenging his jurisdiction over the case, earlier on, on 3/5/2016, set aside the said order of 21/4/2016 in open Court. It had this to say while setting the said order aside:
“I have read the Form 48 and the Ex-parte motion filed by the plaintiffs on 29/5/2016 and would like to say for the record that the Court did notmake order ordering the Defendants to stay action on the process for the appointment of the Vice Chancellor of the 1st defendant. This is because the Court has made it clear right from the beginning on 24/4/2016 that it cannot make any valid any order since its jurisdiction to hear the case is being challenged. However, for the sake of emphasis and to avoid misunderstanding of the situation to ordering the defendants to stay action on the appointment of the Vice Chancellor of the 1st defendant if it was actually made, must have been made in error and is hereby set aside for an obvious reason. So the issue of Form 48 or Notice of appeal against the order does not arise.”

That seems to be what the lower Court did on 3/5/2016 by setting aside its said order of stay of appointment process of 1st Respondent’s Vice Chancellor before going on to strike out appellants’ suit on 11/1/2017 on grounds that it had lost steam, so I do not see anything untoward in that action of the lower Court. What is more, it was said even recently by the Supreme Court (Rhodes-Vivour, JSC) in Okoro v. The State (2012) ALL FWLR (PT 621) 1471 @ 1494 that:
“When a judge makes a null order or one without jurisdiction, it is advisable but not mandatory to go to Court to set it aside. The only reason for going to Court is to have it on record that it has been set aside. Where in the other hand, a null order such as the one under review does not affect anyone, and no one is prejudiced by it neither was there a miscarriage of justice by it, it is better ignored.”
A little more recently in Ominiyi v. Alabi (2015) ALL FWLR (PT 774) 181 @ 197 (SC), the apex Court said again that an order that is declared a nullity, as the lower Court did in this case, is as if it was never made.
Going by these authorities and the observation ofthe trial judge of 3/5/2016 that he lacked jurisdiction to make his earlier order of 21/4/2016 for stay of appointment of Vice Chancellor of 1st Respondent and going ahead to set that order aside, which finding/order remains unchallenged by appellants and so deemed accepted by them (see Oshodi v. Eyifunmi (2000) 13 NWLR (PT 684) 298 @ 332; APGA v. Anyanwu (2014) 7 NWLR (PT 1407) 541 @ 575), it becomes difficult to accept their argument faulting the trial judge for not upholding his said invalid order of 21/4/2016 ordering 1st respondent to stay appointment process of its new Vice Chancellor and striking out appellants’ action which in its opinion had become spent and academic.

Coming to the meat of appellants’ complaint that their then six-year-old originating summons was not spent despite 1st respondent dropping its criteria that its Vice Chancellorship aspirants must possess PhD, in pursuit of which even appellant’s own member and colleague Professor Dakum participated in the second Vice Chancellorship selection process of 1st Respondent since the commencement of their action, from which Professor Maimako emerged as its new Vice-chancellor, I fail to see how appellants can seriously claim that their action and their main complaint as disclosed in the 35-paragraphed affidavit of Dr. Victor Pam supporting it and the several documents annexed to it, was still alive. I am completely at one with the lower Court that with the removal of the said PhD requirement by 1st respondent, the sails had been taken off their originating summons and left it spent and liable to be struck out forthwith. Appellants’ therefore cannot complain of breach of their right to fair hearing on that dead originating summons.

The judicial powers vested on the Courts by Section 6(6)(b) of the 1999 Constitution of this country only extend to live issues and not matters that are merely academic or have become spent during the pendency of the suit by reason of supervening events. See Attorney General of Plateau State v. Attorney General of the Federation (2006) 3 NWLR (PT 967) 346 @ 419; Adeogun v. Fashogbon (2008) 17 NWLR (PT 1115) 149 @180; Agbakoba v. INEC (2008) 18 NWLR (PT 1119) 489 @ 546. In fact an action that was live at trial may become spent on appeal and the appeal Court bound to put an end to itby striking it out. That was established in Attorney General of the Federation v. ANPP (2003) 18 NWLR (PT 851) 182 @ 215 (S.C.), where it was said that:
“In a case on appeal, the appeal may become academic at the time it is due for hearing even though originally there was a living issue between the parties. And I think the fact that the decision may help one of the parties to redirect its affairs in an entirely or probably anticipated situation is irrelevant.”

Public policy, it should be noted, also abhors endless litigation like appellants are seeking to do with their potentially record-breaking, if not even already record breaking, originating summons.

The distinction appellants’ sought to make regarding 1st Respondent’s right to lay down qualification, as opposed to qualities, for appointment of its Vice Chancellor, is also of no consequence, for not only did they fail to pinpoint in their originating summons the said other qualifications outside the PhD requirement that they have quarrel with, they have not also shown how such other undisclosed qualification(s) impinged on their right to contest 1stRespondents’ Vice Chancellorship as to give them cause of action and standing to challenge it. The result is that this issue, which also covers issues 2 and 3 of appellants, is also resolved against appellants.

The summary of all the foregoing is that, this appeal lacks merit and is hereby dismissed in its entirety while the decision of the lower Court is affirmed.
Cost of this appeal is assessed at ₦200,000.00 (Two Hundred Thousand Naira) against each appellant and in favour of respondents jointly.

TANI YUSUF HASSAN, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me with a copy of the draft judgment. I adopt the reasoning and conclusion as mine. I also dismiss the appeal as lacking in merit and affirm the judgment of the lower Court. I abide by the order as to costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.
I am at one with the reasoning and conclusion reached thereat dismissing the appeal for lacking in merit.
I also dismiss the appeal and I abide by the consequential orders made thereinincluding the order on cost against the Appellants and in favour of the Respondents.

Appearances:

N. C. Ayuba, Esq. (holding the brief of J. Y. Pam, Esq.)For Appellant(s)

P. A. Akubo, S.A.N., with him, A. J. Adudu, Esq., G. S. Orshior, Esq., I. O. Egwu, Esq. and I. O. Haruna, Esq.For Respondent(s)