YOUTH PARTY v. INEC
(2022)LCN/16644(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, June 17, 2022
CA/ABJ/CV/812/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
YOUTH PARTY APPELANT(S)
And
INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT IS DUTY BOUND TO FIRST CONSIDER A NOTICE OF PRELIMINARY OBJECTION FIRST BEFORE CONSIDERING THE ISSUES BEFORE IT
The law is trite that the Court is duty bound to first consider a Notice of Preliminary Objection first, where there is one, before delving into the determination of the issues before it. In the case of OBIDIGWE V. KAY KAY CONSTRUCTION LTD (2014) LPELR-24561 (CA) (PP. 5 PARAS. A), this Court held Per SANUSI, J.C.A. thus:
“As a matter of rule, where there exist a notice of preliminary Objection challenging the competence of an appeal before an appellate Court, the Court is duly bound to consider the Preliminary Objection first, before proceeding to determine the appeal, if need be. This is so because Preliminary Objection attacks the competence of the appeal in that the success of the preliminary appeal throws the appeal out of the boxing ring.”
See also GUTING V. DAVWANG (2013) LPELR-21921(CA) (PP. 31-32 PARAS. G), NTUKS V. NPA (2007) LPELR-2076 (SC) (PP. 28 PARAS. A). PER SENCHI, J.C.A.
THE POSITION OF LAW ON THE PURPOSE OF PRELIMINARY OBJECTION
In the case of REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA V. TORT (2017) LPELR- 43069(CA) (PP. 11-12 PARAS. E), this Court per HUSSAINI, J.C.A. held as follows:
“If the purpose for raising a Preliminary Objection is to terminate an entire process which is incompetent, then the procedure is by way of a Preliminary Objection,..”
There is no doubt that the Notice of Preliminary Objection of the Respondent seeks to challenge the entire process of the instant appeal on grounds of incompetence. I hold the view that the objection of the Respondent is valid, having been brought by way of Notice of Preliminary Objection. PER SENCHI, J.C.A.
WHETHER OR NOT THE ISSSUE OF JURISDICTION OF COURT CAN BE RAISED AT ANY TIME OF PROCEEDINGS
The law is also firmly established that it is never too late in the course of the proceedings of all Courts in a matter, at all stages of the judicial ladder, for any of the parties or the Courts to raise the issue of jurisdiction, in any form, and that once raised or it arises, it should be decided first before further steps are taken on other issues in the matter in order to avoid an exercise in futility. See Madukolu v. Nkemdilim (supra), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, (1983) 1 SCNLR, 1172, U.D. U.S. v. Kraus Thoumpson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46, Bankole v. Dada (2003) 11 NWLR (pt. 830) 174, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272.” PER SENCHI, J.C.A.
THE MEANING OF THE TERM “ACADEMIC EXERCISE”
Now, for the sake of clarity, it is of necessity to understand the meaning of an “academic exercise.”
The Supreme Court of Nigeria in the case PLATEAU STATE OF NIG. & ANOR V. AG FED. & ANOR (PP. 76-77 PARAS. F) held per TOBI, J.S.C, (of blessed memory) thus:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.”
In the case of THE PRESIDENT OF THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA & 2 ORS V. SENATOR MOHAMMED ALI NDUME (UNREPORTED) APPEAL NO. CA/A/C/58/2018 delivered on 28/1/2022, this Court held per SENCHI, J.C.A. thus:
“An action becomes hypothetical or raises mere academic point where 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 becomes an exercise in futility, particularly where an issue in an appeal has become defunct. Such an appeal becomes theoretical and leads to the making of bare legal postulations. It is trite law that the Court should not indulge in such hypothetical or academic exercises with no practical utilitarian value to the parties even if judgment is given in their favour. See the cases of AGBAKOBA v. INEC (2008) 18 NWLR PT. 1119 P. 489 and UNIBEN V. EFIONAYI & ORS (2019) LPELR-46737(CA). PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/595/2021 delivered on the 30th day of September, 2021 by I. E. EKWO, J.
The Appellant, as Plaintiff before the lower Court commenced this action via an Originating Summons dated and filed on 6th July, 2021 and a twenty-nine paragraphs Supporting Affidavit deposed to by Helen Attah, a Deputy National Publicity Secretary of the Appellant. In its Originating Summons, the Appellant sought the determination of the following questions:
1. Whether the Plaintiff being a registered political party can participate in all elections in Nigeria including the Anambra State Governorship Election, 2021.
2. Whether the continuous refusal by the Defendant to issue nomination forms (Forms EC9 and EC9B) to the Plaintiff is unconstitutional and amounts to exclusion of the Plaintiff from the Anambra State Governorship Election scheduled for 6th November, 2021, or any other date prescribed by the Defendant.
3. Whether the Anambra State Governorship Election 2021, scheduled to be conducted to the exclusion of the Plaintiff/Political Party and its candidate is unconstitutional, null and void.
The Plaintiff/Appellant, in the event that the foregoing questions are answered in its favour, sought the following reliefs:
1. A Declaration that the Plaintiff being a duly registered political party can participate in the Anambra State Governorship Election scheduled for 6th November, 2021, or any other date prescribed by the Defendant.
2. A Declaration that the refusal of the Defendant to allow the Plaintiff to participate in the processes leading to the election, including failure to issue nomination forms (Forms EC9 and EC9B) is illegal and unconstitutional.
3. A Declaration that any election including the Anambra Stare Governorship Election, conducted to the exclusion of the Plaintiff is unconstitutional, null and void.
4 An Order directing the Defendant to issue Nomination forms to the Governorship candidate of the Plaintiff political party to enable them participate in the forthcoming Anambra State Governorship Election scheduled for 6th November, 2021, or any other date prescribed by the Defendant.
5. An Order of perpetual injunction restraining the Defendant whether by itselves, agents, privies, officers or by whosoever from preventing or excluding the Plaintiff from participating in the forthcoming Anambra State Governorship Election, 2021 or any other elections whatsoever.
6. An Order of perpetual injunction restraining the Defendant whether by itself, agents, privies, officers or by whosoever from conducting the forthcoming Anambra State Governorship Ejection or any other election whatsoever to the exclusion of the Plaintiff.
7. And for such Orders or Further Orders that this Honourable Court may deem fit to make in the circumstance of this case. (See pages 3 and 4 of the Record of Appeal).
On 11th August, 2021, the Respondent, as Defendant before the lower Court, filed a five paragraphs Counter-Affidavit and a Written Address in opposition to the Originating Summons; and an Affidavit to show cause, pursuant to the order of the lower Court dated 27th July, 2021. (See pages 135-228 and 229-230 of the Record of Appeal respectively)
On 1st September, 2021, the Appellant filed a nineteen paragraphs Further Affidavit in support of the Originating Summons; a Reply on Points of Law to the Counter Affidavit and Written Address of the Respondent on 1st September, 2021 and a Further Affidavit in Opposition to the Respondent’s Affidavit to Show Cause. (See pages 231-253, 254-261 and 262-283 of the Record of Appeal respectively).
The brief facts of this case, as gleaned from the depositions in the Affidavit in support of the Originating Summons are to the effect that the Appellant was deregistered by the Respondent, notwithstanding the pendency of Suit No. FHC/ABJ/CS/10/2020 filed by the Appellant before the Federal High Court to prevent the deregistration. On 2nd October, 2020, the Federal High Court delivered its Judgment setting aside the deregistration of the Appellant, and the Court of Appeal, on 11th May, 2021, upheld the decision of the Federal High Court. However, the Respondents refused to acknowledge the Appellant as a Political Party and did not list it on their website. The Respondents also refused to allow the Appellants participate in the Local Government elections in Ondo, Sokoto and Ekiti States, as well as the by-elections in Bayelsa, Zamfara and Lagos States. The Respondents refuse to accept the letters of the Appellants indicating their interest to participate in the Anambra Governorship Elections, and even after the Appellant finally submitted the said letters to the Respondent’s office in Awka, Anambra State, the Respondent refused to avail the Appellant with the requisite nomination forms till time for collection and submission of the forms expired.
Delivering its judgment, the lower Court made an order striking out the case for want of jurisdiction.
Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal on 26th October, 2021. The Grounds of Appeal contained in the Notice of Appeal are hereby reproduced (without their particulars) as follows:
GROUND 1
The lower Court misdirected itself on the facts and erred in the law when it held:
“It is to be noted that once this Court delivered judgment on 2nd October, 2020 in Suit No. FHC/ABJ/CS/10/2020, it became functus officio on the issue concerning the deregistration of the Plaintiff and matters arising therefrom. Where parties have gone on appeal against the judgment of a Court, the Court below cannot exercise jurisdiction on any matter which is a derivative from the subject matter of appeal.”
GROUND 2
The lower Court misdirected itself on the facts and came to a wrong conclusion in law when the lower Court held that based on Exhibit INEC 1, the Notice of Appeal filed by the Respondent dated 14th July, 2021, that an appeal had been entered at the Supreme Court.
GROUND 3
The lower Court erred in law when it held that the issue before the lower Court bordered on jurisdiction but failed to grant the parties fair hearing to address the lower Court on the issue before proceeding to decline jurisdiction.
GROUND 4
The lower Court misdirected itself on the facts and came to a wrong conclusion in law when it held that the proper forum for the Appellant to ventilate its complaint is before the Supreme Court.
GROUND 5
The lower Court misdirected itself on the facts and came to a wrong conclusion in law when it held that the lower Court did not have jurisdiction to adjudicate over the action of the Appellant.
GROUND 4 (SIC)
The judgment is against the weight of evidence.
On 10th December, 2021, the Appellant filed its Brief of Argument, which was settled by Chief Chukwudi Adiukwu. On 12th January, 2022, the Respondent filed a Notice of Preliminary Objection and its Brief of Argument, which was settled by M. I. Abubakar, Esq.
On 16th February, 2022, the Appellant filed a four paragraphs Counter-Affidavit to the Appellant’s Notice of Preliminary Objection, and a reply to the Respondent’s Written Address in support of Notice of Preliminary Objection, both of which were deemed properly filed on 22nd March, 2022.
ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument, learned Counsel to the Appellant distilled three issues for the determination of this appeal thus:
1. Whether the lower Court was functus officio as to the questions submitted to it for determination and the reliefs thereof. (Ground One)
2. Whether the lower Court was right to hold that by virtue of Exhibit INEC1, an appeal had been entered at the Supreme Court. (Grounds Two and Four)
3. Whether the lower Court could suo motu raise the issue of jurisdiction without recourse to the parties and if so, whether the tower Court was right to decline jurisdiction. (Ground Three and Five)
In the Notice of Preliminary Objection filed by the Respondent, learned Counsel to the Respondent submitted four Grounds of Objection, to wit:-
1. The appeal has become academic in that the 2021 Anambra State Governorship Election in respect of which the declaratory and injunctive reliefs in the Appellant’s Notice of Appeal and Originating Summons are sought has since been conducted and concluded.
2. The acts or actions sought to be restrained by the injunctive reliefs sought by the Appellant from this Honourable Court in this Appeal have since been concluded.
3. Necessary parties affected or to be affected by the reliefs sought in the Appeal are not parties to the Appeal; and
4. Ground 2 of the Notice of Appeal does not arise from the decision or judgment of the trial Court appealed against and as such the said ground and Issue 2 of the Appellant’s Brief of Argument formulated therefrom are incompetent.
In the Respondent’s Brief of Argument, learned Counsel to the Respondent distilled a lone issue for the determination of this appeal thus:
“Whether the trial Court properly formulated issue of jurisdiction for the determination of the Appellant’s suit and rightly determined same by declining jurisdiction to entertain the suit.
ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUE ONE
At paragraphs 4.2-4.9 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that it is apparent that the suit leading to the instant Appeal and Suit No. FHC/ABJ/CS/10/2020 determined by the Lower Court on 12th October are not the same, save for the fact that the parties are the same but clearly, the issues are not the same and the lower Court could not have made any decision one way or the other that would have had any scintilla of resemblance with what the lower Court had previously determined, thus, the lower Court was wrong to have found that it was functus officio and consequently struck out the suit leading to this appeal.
APPELLANT’S ISSUE TWO
At paragraphs 5.1-5.07 of the Appellant’s Brief of Argument, Counsel submitted to the effect that it is trite that the mere filing of a Notice of Appeal does not amount to an appeal being entered for the Appellate Court to assume jurisdiction, the Appellate Court only assumes jurisdiction when the records of proceedings have been transmitted from the lower Court. He relied on the case of SALAKO V. ABINDE & ORS (2017) LPELR- 50663 (CA) and Order 4 Rule 10 of the Court of Appeal Rules, 2021. Counsel submitted further that the Appellant could not have made any application to the Supreme Court unless the appeal had been entered at the Supreme Court, as there is a serious margin of difference between an appeal being brought and an appeal being entered. He submitted further that the lower Court was wrong to have relied on a mere Notice of Appeal (Exhibit INEC 1) to decline jurisdiction and stating that the actual forum for the Appellant to seek any remedy was at the Supreme Court when Records were not transmitted to the Supreme Court at the material time.
APPELLANT’S ISSUE THREE
At paragraphs 6.01-6.11 of the Appellant’s Brief of Argument, learned Counsel submitted to the effect that the issue of jurisdiction was not raised by any of the parties at the lower Court and was in fact raised by the lower Court as an issue for determination without recourse to the parties to address it on the issue. He submitted further that although a Court can raise an issue suo motu, the parties must be given the opportunity to address the Court on that issue, particularly one that hinges on the jurisdiction of the Court. Counsel contended that the lower Court was wrong to have raised the issue of jurisdiction without recourse to the parties in the suit to address the lower Court on same, thus, its position in raising such a fundamental issue that bordered on its jurisdiction prejudiced the Appellant. He relied on the cases of MADUKOLU V. NKEMDILIM (1962)2 NSCC 374 AT 379-380, OBIUWEUBI V. CBN (2011) LPELR-2185 (SC), MUSTADRACK CONTRACTS LTD & ORS V. WEMA SECURITIES & FINANCE PLC (2018) LPELR-45279 and EMEKA V. IDRIS (2020) LPELR-51440 (CA). In conclusion, Counsel urged this Court to grant the reliefs sought by the Appellant in its Notice of Appeal.
RESPONDENT’S SUBMISSIONS
ARGUMENTS ON PRELIMINARY OBJECTION
At paragraphs 4.1.1-4.1.6 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted to the effect that a cursory look at all the seven reliefs sought by the Appellant in its Originating Summons, which the Appellant in paragraph 4 of its Notice of Appeal urged this Court to grant will show that the reliefs were targeted principally at the 2021 Anambra Governorship Election scheduled for 6/11/2021, which have now been held and the result duly declared. Thus, the Appellant’s instant appeal has become bereft of issues and academic, in that it no longer serves any useful purpose and proceeding with the determination of the Appeal will amount this Court wasting its precious judicial time. He submitted further that this Court has no jurisdiction to grant the prayers sought by the Appellant in its Notice of Appeal, as the actions sought to be restrained by the orders of injunction contained in the Appellant’s Originating Summons which will thereby be granted have already been concluded, the law is settled that a Court of law is not competent to grant an injunction to restrain a completed action. He relied on the case of BAKARE & ANOR V. BAKARE & ORS (2011) LPELR- 8909 (CA) AT PP. 22-23.
At paragraphs 4.2.1-4.2.4 of the Respondent’s Brief of Argument, Counsel submitted to the effect that having regard to the far reaching effects of the reliefs sought in the appeal and the Originating Summons, the political parties and candidates who participated in the 2021 Anambra State Governorship Election are necessary parties to this appeal, as their interest is bound to be affected by the outcome of the Appeal and they cannot be bound by such outcome when they are not parties to the appeal. They are therefore parties in whose absence this appeal cannot be effectually determined. He relied on the case of NDP V. INEC (2012) LPELR-19722 (SC) AT PP. 38-39 and LAGOS STATE BULK PURCHASE CORPORATION V. PURIFICATION TECHNIQUES NIG. LTD (2012) LPELR-20617 (SC) AT P. 36. Counsel submitted further that since this appeal and the suit giving rise to it are not properly constituted for want of proper parties, this Court lacks the competence or jurisdiction to determine same, as the Court cannot properly deal with the matters in controversy therein with regards to the rights and interest of the parties since the proper parties are not before the Court. He relied on the case of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011) LPELR-1333 (SC).
At paragraphs 4.3.1-4.3.3 of the Respondent’s Brief of Argument, learned Counsel submitted to the effect that ground 2 and issue 2 distilled from it are incompetent, as they do not arise from the decision of the trial Court. He submitted further that ground 2 and issue 2 presuppose that the trial Court held in its Judgment that “based on Exhibit INEC 1, the Notice of Appeal filed by the Respondent dated 4th July, 2021” the Respondent’s appeal to the Supreme Court had been entered at that Court, however, a careful perusal of the Judgment of the trial Court will show clearly that the trial Court did not make any such holding or finding, thus, ground 2 and issue 2 formulated therefrom do not arise or relate to the judgment of the trial Court appealed against. Counsel submitted that the law is well settled that for a Ground of Appeal to be competent, it must arise from or relate to the judgment or decision appealed against. He relied on the cases of WASSAH & ORS V. KARA & ORS (2014) LPELR-24212 (SC) AT P. 19 and ORIANZI V. AG RIVERS STATE & ORS (2017) LPELR-41737 (SC) P. 12 and urged this Court to strike out ground 2 and issue 2.
In conclusion, Counsel urged this Court to uphold the Respondent’s Preliminary Objection and strike out the instant appeal for lack of jurisdiction or in the alternative, strike out Ground 2 of the Notice of Appeal together with issue 2 formulated therefrom.
RESPONDENT’S SUBMISSION ON SUBSTANTIVE APPEAL
At paragraphs 6.1- 6.36 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted to the effect that the trial Court properly formulated the issue of jurisdiction for the determination of the Appellant’s suit and rightly resolved the issue by declining jurisdiction to entertain the suit. He submitted further that it was after duly adverting to the respective cases of the parties and issues formulated from them that the Trial Court decided to formulate a sole issue which it considered more appropriate and encompassing for the determination of the suit. Counsel contended that the issue formulated by the trial Court did not only arise from the Affidavit evidence and Written Addresses of the parties, it is indeed a mere reformulation of the issues raised by the parties in their respective Written Addresses, especially that of the Respondent, in a way that effectively and completely determined the suit. He contended further that a Court is not bound to accept the issues formulated by the parties in a case and it is entitled to formulate or reformulate issues for determination on its own, either for the purpose of brevity, clarity, accuracy or precision or in order to accentuate the real issue in controversy between the parties which will lead to a more judicious determination of the matter. He relied on the cases of EKUNOLA V. CBN & ANOR (2013) LPELR-20391 (SC) AT PP 46-47, FRN V. BORISADE (2015) LPELR-24301 (SC) AT PP 10-11. Counsel submitted further that assuming, without conceding, that the issue formulated by the Trial Court was indeed raised suo motu and determined without recourse to the parties as contended by the Appellant, the trial Court was perfectly entitled to do so and the mere fact that the said issue was raised suo motu and decided without hearing parties on it does not invalidate the decision of the trial Court because the issue so raised was an issue of jurisdiction of the trial Court itself, and it is well within the power of the Court to suo motu raise an issue of jurisdiction and determine same without hearing the parties. He relied on the case of EFFIOM V. C.R.S.I.E.C. (2010)14 NWLR (PT. 1213) 106 AT PP. 133-134 F-A. Counsel submitted further that the Appellant ought to, but has not shown what miscarriage of justice it suffered as a result of the trial Court’s determination of the issue the Court raised, thus, the Appellant has not established any basis for this Court to set aside the trial Court’s decision on the issue. Learned Counsel to the Respondents contended that the reasons why the lower Court declined jurisdiction to entertain the Appellant’s suit and struck it out for lack of jurisdiction, as contained in pages 308-312 of the Record of Appeal, cannot be faulted; as by virtue of the Respondent’s Appeal to the Supreme Court against the part of the decision of the Court of Appeal affirming the Judgment of the trial Court in Suit No. FHC/ABJ/CS/10/2020 setting aside the deregistration of the Appellant by the Respondent, it is obvious that not only had the Trial Court become functus officio on the issue of deregistration of the Appellant, the issue was still under litigation before the Supreme Court. Counsel contended further that the decision of the trial Court to decline jurisdiction for the reasons stated by the Court in its judgment are justified, regardless of whether or not the Respondent’s appeal to the Supreme Court had been entered. Counsel submitted to the effect that contrary to the submissions of the Appellant, in the peculiar circumstances of this case, this Court cannot exercise its powers under Section 15 of the Court of Appeal Act to grant the reliefs sought in the Appellant’s Originating Summons. In conclusion of the Respondent’s Brief of Argument, learned Counsel urged this Court to resolve the sole issue formulated by the Respondent in its favour and to accordingly dismiss this appeal.
APPELLANT’S REPLY TO THE PRELIMINARY OBJECTION
At paragraphs 2.1 and 2.2 of the Appellant’s Reply Brief of Argument, learned Counsel to the Appellant submitted that taking a cursory look at the Notice of Preliminary Objection filed by the Respondent, the contention of the Respondent pertaining to nonjoinder of other political parties to the appeal and that the appeal had become spent as the Anambra State Governorship elections have been held, are not competent to have been raised by way of Notice of Preliminary Objection as they do not arise from substantive issues at the lower Court. He submitted further that perhaps, the only point which can be properly argued before this Court is that Ground 2 of the Notice of Appeal and issue 2 formulated therefrom are incompetent; however, where such an objection is to be raised to strike out a Ground of Appeal, a proper way to bring such an application is by way of Motion on Notice. He relied on the case of SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-46404 (SC). He urged this Court to discountenance the Notice of Preliminary Objection in its entirety for being incompetent.
At paragraph 2.3 – 2.23 of the Appellant’s Reply Brief, Counsel submitted to the effect that assuming, but not conceding, that the Notice of Preliminary Objection is proper, the issue of non-joinder cannot avail the Respondent as it did not raise the issue at the lower Court and has also not sought leave of this Court to raise it at appeal. He submitted further that the Respondent cannot in one breath refuse to allow the Appellant participate in the Anambra State Governorship Election and then turn around to argue that this appeal is academic as the Anambra State Governorship Election has been concluded. Counsel contended that faced with the staggering reliefs sought by the Appellant before the lower Court, the Respondent ought not to have taken steps to foist a fiat accompli on the Court and should have been bound by the doctrine of lis pendes, the appeal having been entered before the conduct of the Anambra State Governorship Election. He relied on the cases of OYEGBEMI& ANOR V. AROMIRE& ORS (2012) LPELR-7942 (CA), OBI V. INEC & ORS (2007) LPELR-2166 (SC). He urged this Court to hold that this Appeal is not academic and the lower Court had the requisite jurisdiction and also, with the facts not being in dispute, this Court should exercise its power under Section 16 of the Court of Appeal Act as though it were the Court of first instance, and decide the issues submitted to the Lower Court on the merit. Counsel contended that contrary to the submission of the Respondent, from the judgment of the lower Court, particularly at pages 308 – 310 of the Record of Appeal, the lower Court relied on Exhibit INEC1 to find that there was an appeal at the Supreme Court on the issue of deregistration of the Appellant and on that basis the Supreme Court had become fully seized of the appeal, the resultant effect being to decline jurisdiction. Therefore, Ground 2 of the Notice of Appeal relates and indeed arises from the Judgment of the lower Court.
REPLY TO THE RESPONDENT’S BRIEF
At paragraphs 3.1-3.4 of the Appellant’s Reply Brief, learned Counsel submitted to the effect that contrary to the contention of the Respondent at paragraphs 6.8 – 6.12 of its Brief of Argument that it indeed raised the issue of jurisdiction in its Counter-Affidavit and written arguments canvassed at the lower Court, a cursory look at the Respondent’s Counter-Affidavit to the Originating Summons will reveal that the issue of the lower Court not having jurisdiction to entertain the suit was neither raised not argued, rather, what the Respondent contended at paragraph 3(c) at page 136 of the Record of Appeal is that the appeal had been entered at the Supreme Court and will therefore render academic or hypothetical if the orders favourable to the Appellant as contained in the judgment are enforced by the Defendant, thus, the issue of jurisdiction was raised suo motu by the Court, having been misled by the Respondent in paragraph 3(c) of its Counter-Affidavit.
In response to the submissions of the Respondent at paragraphs 6.13 – 6.15 of its Brief of Argument that the lower Court was right to have raised the issue of jurisdiction suo motu and that the Appellant has not shown how he suffered any miscarriage of justice, Counsel to the Appellant submitted that once a party is not given a right to address the Court on a fundamental issue such as jurisdiction, it amounts to a breach of fair hearing and where there is a breach of fair hearing without more, a miscarriage of justice has occurred. He relied on the case of KALU V. THE STATE (2017) LPELR-42101 (SC).
In response to the Contention of the Respondent at paragraph 6.22 of its Brief of Argument that it has an appeal to the Supreme Court emanating from Suit No. FHC/ABJ/CS/10/2020, hence the lower Court was right in stating that it had become functus officio, Counsel to the Appellant submitted that looking at the gamut of Exhibits exhibited by the Respondent at the lower Court, there was nothing to show that there was an appeal at the Supreme Court apart from Exhibit INEC, thus, this Court should find that there is no appeal at the Supreme Court upon which the lower Court relied in declining jurisdiction. He submitted further that he who asserts must prove and Notice of Appeal is not an appeal itself. Counsel relied on the cases of MRS BETTY DAREGO V. A.G. LEVENTIS NIGERIA LIMITED & ORS (2015) LPELR-25009 (CA) and DUKE V. DUKE (2012) LPELR-19700 (CA).
In conclusion, Counsel urged this Court to discountenance the Notice of Preliminary Objection and all arguments canvassed by the Respondent in its Brief of Argument and grant the Reliefs of the Appellant as sought in the Notice of Appeal.
RESOLUTION OF ISSUES
I will determine this appeal based on the issues distilled for determination by Counsel to the Appellants, and thereunder, consider and determine the issues distilled for determination by the Respondent’s Counsel. However, the Respondent filed a Notice of Preliminary Objection on 12th January, 2022, which was argued at pages 4-11 of the Respondent’s Brief of Argument. The law is trite that the Court is duty bound to first consider a Notice of Preliminary Objection first, where there is one, before delving into the determination of the issues before it. In the case of OBIDIGWE V. KAY KAY CONSTRUCTION LTD (2014) LPELR-24561 (CA) (PP. 5 PARAS. A), this Court held Per SANUSI, J.C.A. thus:
“As a matter of rule, where there exist a notice of preliminary Objection challenging the competence of an appeal before an appellate Court, the Court is duly bound to consider the Preliminary Objection first, before proceeding to determine the appeal, if need be. This is so because Preliminary Objection attacks the competence of the appeal in that the success of the preliminary appeal throws the appeal out of the boxing ring.”
See also GUTING V. DAVWANG (2013) LPELR-21921(CA) (PP. 31-32 PARAS. G), NTUKS V. NPA (2007) LPELR-2076 (SC) (PP. 28 PARAS. A).
I will therefore proceed to consider the Notice of Preliminary Objection first, in light of the Grounds of Objection raised by learned Counsel to the Respondent.
In arguing Grounds 1 and 2 of the Respondent’s Preliminary Objection, the contention of the Respondent’s Counsel is to the effect that the instant Appeal has become academic in that the 2021 Anambra State Governorship Election in respect of which the Appellant seeks declaratory and injunctive reliefs has since been conducted and concluded, hence, the Court is deprived of jurisdiction to entertain this appeal. In response to this contention, Counsel to the Appellant submitted that this issue, as canvassed by the Respondent, is not competent to have been raised by way of Notice of Preliminary Objection, as the issue does not arise from substantive issues at the lower Court.
Considering the contention of the Appellant’s Counsel, the pertinent question to ask at this point is whether the Respondent can validly raise the issue in question by way of Preliminary Objection as it does not arise from substantive issues at the lower Court?
In the case of REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA V. TORT (2017) LPELR- 43069(CA) (PP. 11-12 PARAS. E), this Court per HUSSAINI, J.C.A. held as follows:
“If the purpose for raising a Preliminary Objection is to terminate an entire process which is incompetent, then the procedure is by way of a Preliminary Objection,..”
There is no doubt that the Notice of Preliminary Objection of the Respondent seeks to challenge the entire process of the instant appeal on grounds of incompetence. I hold the view that the objection of the Respondent is valid, having been brought by way of Notice of Preliminary Objection.
Now, with regards to the contention of the Appellant that Grounds 1 and 2 of the Respondent’s Notice of Preliminary Objection are incompetent, having not been canvassed at the lower Court, I have painstakingly perused the entire Notice of Preliminary Objection, especially Grounds 1 and 2 therein as well as the arguments of learned Counsel to the Respondents in support of the said Grounds 1 and 2. The crux of the Respondent’s objection on Grounds 1 and 2 of the Notice of Preliminary Objection pertains to the want of jurisdiction of this Court to entertain and determine this appeal.
It is trite, as has been emphasized by plethora of the decisions of this Court and indeed the Apex Court that the issue of jurisdiction can be raised at any stage of the proceedings before the Court, even for the first time on appeal.
In the case SKYPOWER EXPRESS AIRWAYS LTD V. UBA, PLC & ANOR (2022) (PP. 8-9 PARAS. C-C), the Supreme Court of Nigeria held per GARBA, J.S.C, as follows:
“The very intrinsic and extrinsic nature of the issue of jurisdiction in judicial proceedings of a Court of law and the fatal consequence on the part of a Court to entertain an action, are of considerable antiquity to be elementary in our judicial jurisprudence now. Madukolu v. Nkemdilim (1962) 1 AH NLR, 587, (1962) 2 SCNLR 341 is the decision often referred to and relied on for the fundamental and crucial nature of the issue of jurisdiction in judicial proceedings of a Court of law and, named by many, as the “Locus dassicus” on the issue.
The law is also firmly established that it is never too late in the course of the proceedings of all Courts in a matter, at all stages of the judicial ladder, for any of the parties or the Courts to raise the issue of jurisdiction, in any form, and that once raised or it arises, it should be decided first before further steps are taken on other issues in the matter in order to avoid an exercise in futility. See Madukolu v. Nkemdilim (supra), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, (1983) 1 SCNLR, 1172, U.D. U.S. v. Kraus Thoumpson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46, Bankole v. Dada (2003) 11 NWLR (pt. 830) 174, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272.”
Thus, the Respondent was right in law to have raised the issue of the jurisdiction of this Court, irrespective of the fact that it was not canvassed before the Lower Court.
I must say at this juncture that when an objection pertaining to the issue of jurisdiction is raised for the first time on appeal as in the instant appeal, it goes against reason to posit that such objection ought to have been hinged on substantive issues before the lower Court. Thus, the contention of learned Counsel to the Appellant that Grounds 1 and 2 of the Respondent’s Notice of Preliminary Objection are incompetent, having not been derived from substantive issues before the Lower Court is not only misconceived but strange.
Having dealt with the contention of learned Counsel to the Appellant in opposition to Grounds 1 and 2 of the Respondent’s Preliminary Objection, I will now consider whether this appeal has become academic, as submitted by learned Counsel to the Respondent. The crux of the Respondent’s contention is that the reliefs sought by the Appellant in its Originating Summons, which the Appellant in its Notice of Appeal urged this Court to grant were targeted principally at the 2021 Anambra Governorship Election scheduled for 6/11/2021, which have now been held and the result duly declared, hence, the appeal has become academic, in that it no longer serves any useful purpose, and this Court has no jurisdiction to grant the prayers sought by the Appellant in its Notice of Appeal, as the actions sought to be restrained by the orders of injunction contained in the Appellant’s Originating Summons which even where granted have already been concluded. The Respondent’s Counsel contends further that the law is settled that a Court of law is not competent to grant an injunction to restrain a completed action.
Now, for the sake of clarity, it is of necessity to understand the meaning of an “academic exercise.”
The Supreme Court of Nigeria in the case PLATEAU STATE OF NIG. & ANOR V. AG FED. & ANOR (PP. 76-77 PARAS. F) held per TOBI, J.S.C, (of blessed memory) thus:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.”
In the case of THE PRESIDENT OF THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA & 2 ORS V. SENATOR MOHAMMED ALI NDUME (UNREPORTED) APPEAL NO. CA/A/C/58/2018 delivered on 28/1/2022, this Court held per SENCHI, J.C.A. thus:
“An action becomes hypothetical or raises mere academic point where 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 becomes an exercise in futility, particularly where an issue in an appeal has become defunct. Such an appeal becomes theoretical and leads to the making of bare legal postulations. It is trite law that the Court should not indulge in such hypothetical or academic exercises with no practical utilitarian value to the parties even if judgment is given in their favour. See the cases of AGBAKOBA v. INEC (2008) 18 NWLR PT. 1119 P. 489 and UNIBEN V. EFIONAYI & ORS (2019) LPELR-46737(CA).
I have painstakingly perused the Originating Summons of the Appellant before the lower Court, especially the reliefs sought, which have been reproduced earlier on. The declarative and injunctive reliefs sought, which the learned Counsel for the Appellants urged this Court to grant, pertain to the period before the Governorship Elections of Anambra State which held on the 6th day of November, 2021.
I do not see the benefits the Appellant will derive from such declarative reliefs if they are granted as prayed at this point in time when the said elections have already been conducted and concluded. Thus, I agree with the submissions of learned Counsel to the Respondent that entertaining this appeal and granting the declarative and injunctive reliefs sought will amount to an academic exercise. I hold the view that this appeal is incompetent in light of the aforementioned reason, and hence this Court lacks the requisite jurisdiction to entertain same, and I so hold. I hereby dismiss this appeal for want of jurisdiction.
Having dealt with the Preliminary Objection, I will now proceed to determine the substantive appeal on its merit. As stated earlier, this appeal shall be determined based on the Issues for Determination distilled by the Appellant.
ISSUE 1
Whether the lower Court was functus officio as to the questions submitted to it for determination and the reliefs thereof.
It is the contention of learned Counsel to the Appellant that the issues in the instant appeal and Suit No. FHC/ABJ/CS/10/2020 determined by the lower Court on 12th October are not the same, save for the fact that the parties are the same, thus, the lower Court was wrong to have found that it was functus officio and consequently struck out the suit leading to this appeal. On his part, learned Counsel to the Respondent contended that the trial Court properly formulated the issue of jurisdiction for the determination of the Appellant’s suit and rightly resolved the issue by declining jurisdiction to entertain the suit.
I have perused the question put forward by the Appellant, as well as the reliefs sought in Suit No. FHC/ABJ/CS/10/2020 in which judgment was delivered on 12th October, 2020. Essentially, the reliefs sought centered on restraining the Respondent from deregistering the Appellant. The lower Court, in its judgment, as contained in Exhibit C, at pages 14 – 49 of the Record of Appeal held as follows:
“An Order of Injunction is hereby made restraining the Defendant from deregistering the Plaintiff until the Plaintiff is given equal opportunity to freely participate in the 2023 general election to be organized by the Defendant.”
I have also perused the Originating Summons in Suit No. FHC/ABJ/CS/595/2021, which is the suit leading to this instant appeal. Essentially, the Reliefs sought revolve around getting the Appellant to participate in the Governorship Elections of Anambra State scheduled for 6th November, 2021.
I have perused the depositions in the Affidavit of the Appellant in support of its Originating Summons. The Deponent, at paragraph 9-12 of the Affidavit, made reference to the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/10/2020 and the appeal to this Court on the said judgment setting aside the purported deregistration of the Appellant by the Respondent, which the Defendant disregarded by refusing to acknowledge the Appellant as a Political Party and listing its name on the Respondent’s website. It was further averred at paragraphs 17-21 of the Affidavit to the effect that despite several requests and pleas, the Defendant refused to avail the Plaintiff with the requisite Nomination Forms, up till the expiration of the time for collection and submission of Nomination Forms.
From the depositions in support of the Appellant’s Originating Summons in the Suit leading to this appeal, it is clear that the Appellant’s grouse is hinged on the Respondent’s actions which are in defiance to the restraining order of the lower Court in Suit No. FHC/ABJ/CS/595/2021. The failure of the Respondent to make available the Nomination Form and engage in any correspondence with the Appellant is pursuant to the deregistration of the Appellant. (See paragraph 3(i) of the Respondent’s Counter-Affidavit in opposition to the Originating Summons). The said deregistration was a substantive issue before the Lower Court in Suit No. FHC/ABJ/CS/595/2021, on account of which the Lower Court made restraining orders against the Respondent.
From the foregoing analysis, I am of the view that irrespective of the fact that the questions and reliefs of the Appellant in Suit No. FHC/ABJ/CS/595/2021 and the suit leading to the instant appeal are couched differently, they are the same. Thus, the Lower Court was right when it declined jurisdiction for being functus officio, and such decision cannot be disturbed by this Court.
In the case of MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT. 584) P. 108 AT 163, the Supreme Court of Nigeria defined functus officio as follows:
“The latin expression Functus Officio simply means “task performed”. Therefore, applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, he no longer has the competence or jurisdiction to give another decision or order on the same matter. A judge is functus officio if he gives judgment on the merits.”
The lower Court determined the Suit No. FHC/ABJ/CS/595/2021 on the merit, thus it became functus officio to hear any matter bothering on the same issues. Thus, the lower Court was right to decline jurisdiction to entertain and determine the suit leading to the instant Appeal, and I so hold.
Now, the lack of jurisdiction of the Lower Court to entertain and determine the suit leading to this appeal robs this Court of jurisdiction to entertain same. Thus, this Court cannot exercise jurisdiction to grant the reliefs sought by the Appellant in its Notice of Appeal, which are in effect the reliefs sought in its Originating Summons before the lower Court. In light of the forgoing, issues two and three distilled by the Appellant for the determination of this Appeal cannot be determined by this Court. See SULEJA V ABUBAKAR & ORS, (2019) LPELR 47899, where this Court held as per IGE, JCA as follows:-
“The trite law is that where the Court of trial lacks the jurisdiction on a cause or matter the Appellate Court is also in the circumstance devoid of jurisdiction to decide the appeal emanating from the null proceedings as in this case. The case is liable to be struck out for being incompetent and for lack of jurisdiction on the part of the trial Court. In other words, this Court cannot exercise appellate jurisdiction to deal with the subject matter of an action. See ECOBANK NIGERIA LTD V ANCHORAGE LEISURES LTD & ORS (2018)18 NWLR (pt 1650)117 at 135 paras C-G per PETER ODILI JSC who said: – There was no appeal to the Court on the stand of the trial Court’s striking out the contempt proceedings for lack of jurisdiction and so the appellant cannot bring the matter up at this stage at the Supreme Court. The implication is that the striking out of the contempt proceedings on a want of jurisdiction by the trial Court and the matter not appealed against, there is no vices on which it can be reopened at that stage since the Court of Appeal would lack jurisdiction and the same virus visiting this Court on that same issue. The two Courts below lacking jurisdiction, this Court automatically has been caged and is helpless as there is no basis on which it can assume jurisdiction to entertain. This calls up the reminder to what is now trite in law which is that an appeal is a confirmation of hearing and not on its own to be activated without a linkage to the earlier trial or appeal from a lower Court. See AJIDE V KELANI (1985) 3 NWLR (pt 109)250 at 266. The case of AKIN BOBOLA V PLISSON FISKO, (1991)1 NWLR (pt. 167)270 at 285 Paras E-G would highlight what I have been trying to communicate and there this Court had stated in very dear terms the true position of things thus: “The Court below being an appellate Court, cannot exercise jurisdiction in a matter where the trial Judge is without jurisdiction. It only exercises its appellate jurisdiction to correct the errors of the learned judge. Hence it will have no jurisdiction to make consequential orders after it has held that the learned trial Judge had no jurisdiction to make consequential orders the Court below could not have made because it can only exercise jurisdiction on appeal as if the proceedings had been instituted in the Court of Appeal as Court of first instance.”
Thus, this appeal is lacking in merit, and it is hereby dismissed. The judgment of the Federal High Court, sitting in Abuja in Suit No. FHC/ABJ/CS/595/2021 delivered on the 30th day of September, 2021 by I. E. EKWO, J is hereby affirmed.
No award as to cost.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, DANLAMI ZAMA SENCHI, JCA.
I agree with his reasoning and conclusion that the appeal lacks merit and it is accordingly dismissed. The judgment of the Federal High Court, Abuja delivered on the 30th day of September, 2021 in Suit No. FHC/ABJ/CS/595/2021 by I. E. EKWO, J. is hereby affirmed.
There shall be no order as to cost.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord, Danlami Zama Senchi JCA., and I am completely satisfied with the lucid reasoning and impeccable conclusions reached therein to the effect that not only is the appeal incompetent but it is also lacking in merit.
My Lords, with the conclusion of the Governorship election into the Office of Governor of Anambra State late last year and the eventual swearing into office of Governor Soludo early this year, there is nothing worth anything the Appellant’s Suit, being not an Election Petition challenging the outcome of the said Governorship Election, is in law capable of achieving any longer. It is truly spent and had become merely academic.
The Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 AT pp. 254 – 255, Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497.
It follows therefore, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. Sec Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Sir Biobele Abraham Georgewill JCA. See also Action Congress v INEC (2007) LPELR – 8988 (CA); Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497; Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 AT p. 180.
Indeed, all the issues in this appeal having become spent, this Court must refuse to be drawn into the determination of an appeal, which is left without any live issues and with no utilitarian value except for their academic illumination and entertainment, on the merit. See Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR – 54583(CA), where this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus:
“Courts of are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal.”
My Lords, once an appeal is incompetent that is the end of the matter in law, for without competence a determination of any matter, including this appeal, on the merit is but an exercise in futility.
I shall not honour the Appellant by proceeding to consider the merit of this dead on arrival appeal for any reason whatsoever.
It is for the above few words of mine and for the fuller reason marshalled out in the leading judgment that I too hold that the preliminary objection succeeds and consequently, this appeal which is incompetent is liable to be struck out. I too hereby strike out this appeal.
Appearances:
Chukwudi Adiukwu, Esq. For Appellant(s)
M. I. Abubakar, Esq. For Respondent(s)
