ZENITH BANK PLC v. DAILY TIMES OF (NIG.) PLC & ANOR
(2022)LCN/16666(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, July 26, 2022
CA/A/1155/2019
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ZENITH BANK PLC APPELANT(S)
And
1. THE DAILY TIMES OF NIGERIA PLC 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)
RATIO
WHETEHR OR NOT THE COURTS CAN BE CALLED UPON TO DETERMINE MATTERS THAT ARE ACADEMIC IN NATURE
Courts of law must never be called upon and must not dissipate precious judicial time and energy in determining matters that have been rendered entirely academic and of no utilitarian value. Courts deal with live issues. See Anyanwu v Peoples Democratic Party (2020) 3 NWLR Part 1710 Page 134 at 176 Para G per Eko JSC, Dahiru v APC (2017) 4 NWLR Part 1555 Page 218 at 244 Para E-G per Rhodes-Vivour JSC, FRN v. Dairo (2015) 6 NWLR Part 1454 Page 141 at 170-181 Para H; (2015) All FWLR Part 776 Page 486 at 521 Para F-G per Nweze JSC. PER ADEFOPE-OKOJIE, J.C.A.
THE POSITION OF LAW ON WHEN AN ISSUE AMOUNTS TO ACADEMIC EXERCISE
I will in agreeing with the leading judgment that the appeal has become academic I will refer to a few cases to buttress this in establishing when a matter before a Court becomes academic. An issue amounts to academic exercise when it is not a life issue before the Court as it does not decide the rights and liabilities of the parties before it. A Court is a busy place that should therefore not be involved in deciding issues which has no practical relevance to the matter that is in the front burner before the Court. It will amount to a complete waste of time to engage in academic exercise. The apex Court has stated in several cases that a Court should not allow itself to be dragged into deciding academic issues. In APC & Ors v. Enugu State Independent Electoral Commission & Ors (2021) LPELR-55337 (SC), the apex Court held:
“In Ardo vs INEC (2017) LPELR – 41919 (SC), this Court per Augie, JSC gave an in-depth analysis of what an academic or hypothetical suit is, to wit:
“What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question. See Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma Eneh further explained that-
‘An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when the determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt, that has lost its seasoning. And like salt in that state, it has no practical value to anybody and so also a suit in that state has none.”
In simple terms an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not ensure any right or benefit on a successful party.” Per KEKERE-EKUN, J.S.C.
Similarly, the apex Court in APC v. Enwerem & Ors (2022) LPELR-57816 (SC) held thus:
“I agree with him that in the circumstances of this case, looking into the merits or otherwise of the decision appealed against, is an exercise in futility, because it is nothing but an academic appeal, which does not require any answer from this Court – see Adeogun V. Fashogbon (2008) 17 NWLR (Pt. 1115) 149, wherein Tobi, JSC, stated:
Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic, or they are frolic- some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief.” Per AUGIE, J.S.C. PER TOBI, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the Federal High Court, Abuja Judicial Division (hereinafter referred to as “the lower Court”) delivered on 15th day of November, 2019 by Hon. Justice O.E Abang in Suit No FHC/ABJ/CS/45/2019 disallowing questions put to the Appellant’s witness during his examination-in-chief. Aggrieved, the Appellant filed two Notices of Appeal, one on 27th November, 2019 and the other on the 29th of November 2019, opting to rely on the latter.
BRIEF STATEMENT OF FACTS
On the 15th day of November, 2019 the Appellant, as 1st Defendant before the lower Court, opened its case by calling its first defence witness, Tony Makwe (DW1). He was led in evidence to adopt his witness statement on oath, after which his Counsel tendered documents from the Bar, without any objections from the parties. After tendering these documents, the Appellant’s Counsel sought to ask the witness questions relating to the documents tendered. The lower Court however disallowed him on the ground that had he (Appellant’s Counsel) intended the witness to speak to the documents, the documents should have been tendered through the witness, and that the Appellant’s Counsel, having tendered the documents from the Bar, cannot seek to elicit fresh evidence from the documents. Neither the Rules of Court nor the Evidence Act 2011 permitted this, the Court held. Aggrieved, as aforesaid, the Appellant filed this appeal.
In prosecution of the appeal, the Appellant raised a single issue for determination in its Appellant’s Brief of Arguments settled by Felix S. Abiodun Esq of Solomon E. Umoh, SAN & Co and filed on 16/12/2019, to wit:
Whether having regard to the facts and circumstances of this case, the learned trial Judge was right when he refused to allow the Appellant’s counsel to lead the witness i.e DW1, Tony Makwe to refer to the documents that were already in evidence which are mentioned in his witness statement on oath as well as to tie game to the Appellant’s case?
The 1st Respondent’s Counsel, in the 1st Respondent’s Brief of Arguments settled by Kalu Onuoha Esq., and filed on 27/12/2019 formulated two issues for determination, viz;
1. Whether having regard to the facts and circumstances of this case, the lower Court was right to have exercised its discretion to disallow or overrule questions asked by the Appellant’s counsel which would have taken the oral examination of the Appellant’s first witness (DW1) during his examination-in-chief beyond confirmation and adoption of his written deposition/witness statement on oath?
2. Whether the Appellant’s right to fair hearing was violated when the lower Court overruled/disallowed the questions its counsel asked its witness which would have extended the oral examination of the witness (DW1) during his examination-in-chief beyond confirmation and adoption of his written deposition/witness statement on oath?
The 2nd Respondent filed no Brief of Arguments.
The 1st Respondent also filed a Preliminary Objection.
APPELLANT’S SUBMISSIONS IN MAIN APPEAL:
It is Appellant Counsel’s submission that the learned trial Judge was wrong when he refused to allow the Appellant’s Counsel to lead the witness, DW1, Tony Makwe, to speak to the documents that were already in evidence and mentioned in his witness statement on oath and tie them to the Appellant’s case, as it is trite that documents in evidence tendered from the Bar and not spoken to by a competent witness are deemed dumped on the Court, attracting no evidential/probative value, as held in Okereke v. Umahi & Ors (2016) LPELR – 40035 (SC) Pages 65-67 Para D-C per Sanusi JSC, A.N.P.P v. Usman (2008) 12 NWLR (Part 1100) Page 1 at 89-90, Emmanuel & Anor v. Ogbu & Anor (2015) LPELR – 41775 (CA) Pages 35-38 Para E- D per Ogbuinya JCA.
Learned Counsel also submitted that there is no law that prohibits a party who elects to tender documents from the Bar from leading his witnesses to speak to the documents so tendered and to tie them to the party’s case. This procedure, he said, is supported by Order 20 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019. The decision of the lower Court thus amounts to an infringement of the Appellant’s right to fair hearing.
1ST RESPONDENT’S SUBMISSIONS:
It is the submission of learned Counsel to the 1st Respondent that the trial Judge rightly exercised his discretion in disallowing the questions asked DW1 by the Appellant’s Counsel. Citing Ogunmilua v Ashaolu (2013) LPELR – 22324 Page 22-23, Order 20 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 and the case of Skye Bank Plc v. Tuns Farms Ltd (2015) LPELR – 25817 (CA). Page 20 per Denton-West JCA he contended that the limit of oral examination of a witness during his examination-in-chief shall be limited to confirming his written deposition and tendering in evidence documents referred to in the deposition. In the instant case, where there were no documents left for the DW1 to tender, there was no need for any further oral examination-in-chief of the DW1 after the adoption of his written deposition.
Counsel also submitted that the issue of ‘dumping of documents’ does not arise in this case and that all the cases cited by the Appellant’s counsel to that effect are inapposite and inapplicable. Furthermore, that the linking/tying of documents to a party’s case is done in a witness written statement on oath and not by oral evidence in the witness box. The Appellant’s right to fair hearing was in no way breached by the lower Court, as the proceedings complained of followed the provisions of Order 20 of the Federal High Court (Civil Procedure) Rules 2019, emphasizing that the issue of fair hearing is one to be invoked with every sense of seriousness and not to be used as a red herring to sustain a hopeless case as in the instant appeal.
He cited Adebesin v. State (2014) LPELR- 22694 (SC) Pages 33-34, UBA Plc v. Dana Motors Ltd (2018) LPELR – 44101 (CA) Page 63-65, Egbuche v. Egbuche (2015) LPELR – 25868 (CA) Pages 42-43, A.P.P v. Obiano (2018) LPELR- 44646 (CA) Page 56-61 among a host of others.
Counsel concluded by submitting that this interlocutory appeal is wholly unnecessary and premature, as the issue raised in the Appellant’s brief could conveniently have been raised and canvassed in any appeal arising from the final decision of the lower Court, citing Zurmi v. Inuwa (2018) LPELR- 44649 (CA) Pages 11-12, Uzoukwu v. Ogoke (2014) LPELR – 24100 (CA) Pages 6-7, P.D.P v. Adiele (2015) LPELR – 25770 (CA) Pages 17-19 per Mbaba JCA.
In response to the suit, as aforesaid, the 1st Respondent filed a Notice of Preliminary Objection seeking the striking out/dismissal of the appeal for incompetence. The Preliminary Objection shall be entertained first, in the event that its success dispenses with the hearing of the appeal.
NOTICE OF PRELIMINARY OBJECTION
The grounds for the Preliminary Objection are the following:
a) The appeal is premised on the Appellant’s hypothesis and speculation that the lower Court will hold that some documents tendered by the Appellant were “dumped” on the Court.
b) The Appellant has already taken steps at the lower Court to remedy the alleged “dumping” thereby rendering the present appeal otiose and academic.
c) This appeal constitutes an abuse of the judicial process.
Arguments on the Objection were incorporated in the 1st Respondent’s Brief of Arguments settled by Kalu Onuoha, Esq., and filed on 27/12/2019, in response to which the Appellant filed a Reply Brief on 5/2/20, deemed as properly filed on 20/6/22 and settled by Santos O. Eejah of Solomon E. Umoh (SAN) & Co.
1ST RESPONDENT’S SUBMISSIONS
Arguing the objection, learned Counsel to the 1st Respondent contended that this appeal is based on fear, which is totally misplaced and unfounded. It is also rooted in the speculation that the documents tendered from the Bar will be deemed to have been dumped on the Court. Counsel submitted that the law does not operate on mere speculations, citing the cases of Ohuabunwa v. Duru (2008) LPELR-4699 (CA) Page 44; Reg. Trustees of Assemblies of God Church v. Okongwu (2012) LPELR – 19933 (CA) Pages 13-14, Dizengoff W.A (Nig) Ltd v. A.S. T.C & M Ltd (2018) LPELR – 46361 (CA) Pages 17-18.
Counsel further submitted that this appeal constitutes an abuse of judicial process as the Appellant has already utilized another procedure to achieve the same purpose, in line with the first relief sought in the appeal, by obtaining leave to file an additional witness statement of the witness who testified on 6/12/2019 and through whom the originals of the same documents earlier tendered from the Bar were now tendered. The Appellant was thus afforded a second chance to get a witness to “speak “to the same documents tendered and to “tie” the documents to the witness statement and the pleadings. This appeal is thus rendered academic and of no utilitarian value, constituting an abuse of the Court’s process. He cited Alli v. Alesinloye (2000) LPELR – 427 (SC) Page 20 per Iguh JSC, Emirate Airline v. FRN (2014) LPELR – 24135 (CA) Pages 35-37, Wanzami v. Salisu (2014) LPELR – 22337 (CA) Pages 35-38.
APPELLANT’S REPLY
The Appellant, in his Reply Brief, submitted that the 1st Respondent is under a total misconception of the Appellant’s case as the Appellant’s appeal is not predicated on any speculation but only stands to complain of the lower Court’s misunderstanding and misapplication of the well-established practice and procedure regarding the receiving of evidence in Court and the ultimate infringement of the Appellant’s right to fair hearing, citing Ekpenetu v. Ofegobi & Ors (2012) LPELR-9229 (CA) Pages 44-47. He denied that the Appellant’s appeal is in any way an abuse of Court process neither is it academic, as there are no attributes or characteristics of abuse of Court process that can be found in the appeal as presently constituted.
RESOLUTION
The grounds of appeal in the instant appeal, shorn of their particulars, are the following:
Ground 1
“The learned trial Judge erred in law when he held that no question is permitted to be put to DW1 as it relates to exhibits already in evidence after having been led to adopt his witness statement on oath without leading evidence to identify the exhibits referred to in his deposition which had already been tendered from the Bar by Counsel and admitted in evidence and marked at exhibits and this occasioned an infringement on the 1st Defendant’s right to fair hearing.”
Ground 2
“The learned trial Judge misdirected himself in law when in his ruling in the course of the evidence of DW1 he held that the senior counsel to the 1st Defendant is not permitted to put any question to his witness as it relates to documents already in evidence having earlier led him to adopt his witness deposition on oath and this occasioned an infringement on the 1st Defendant’s right to fair hearing.”
The ruling of the lower Court and which has been appealed against, is the following:
“After documents were tendered in evidence from the Bar without objection by the Plaintiff and the 2nd Defendant, learned Senior Counsel for the 1st Defendant, Solomon Umoh SAN asked the witness further questions on the documents already admitted. These questions were overruled by the Court on the ground that the procedure adopted by Learned SAN is not known to the rules of Court. If learned SAN intended the witness to speak to the documents in evidence not being statement of account from a bank, learned SAN ought to have been tendered the documents through the witness in the witness box. Having elected to tender the documents from the bar without objection, Learned SAN cannot seek to elicit fresh evidence from the documents in evidence. With my limited knowledge of the law, I cannot find such procedure in the Rules of Court or the Evidence Act 2011. I so hold.”
As has been pointed out by the learned Counsel to the 1st Respondent, the documents tendered from the Bar by DW1 and which the Appellant’s Counsel complains the witness was prevented from speaking to, were also tendered by DW2, Sophie Soyinka, a staff of the Appellant’s Bank who testified on 6/12/2019. These documents, unlike the first set of documents, were not tendered from the Bar but through DW2. The portion containing the evidence of this witness is not contained in the record transmitted to this Court but is contained in Volume 2 of the substantive appeal against the final judgment between the same parties in Appeal No CA/ABJ/CV/1131/2020.
Both the instant interlocutory appeal and the substantive appeal were heard by this Court on the same date. This Court is thus eminently qualified to look at the processes in the files before it to arrive at a just and non-conflicting decision.
In Volume 2 of the records in the substantive appeal, this witness deposed to two witness statements, one on 26/3/2019 and the second on 19/11/2019. In the latter statement on oath, specific mention was made of the documents, which had earlier been tendered from the Bar. This time around, the documents were tendered by the witness in examination in chief. These documents tendered, I note, were the originals of those earlier tendered from the Barby the Appellant’s Counsel. The documents tendered by DW2 were marked Exhibits DC1, DC2, DC3 to DC139 (Page 1082-1086 of Volume 2 of Record in CA/ABJ/CV/1131/2020).
It is thus clear, as the learned Counsel to the 1st Respondent has submitted, that the anticipated detriment to the Appellant’s case by the first witness not “speaking” to the documents and thus “dumping” them, was corrected by DW2, who tendered the documents in evidence and the contents of whose deposition, save for the documents listed in her Witness Statement on Oath, is the same as that of DW1, Tony Makwe. This fact, I note, was not contested by Appellant’s Counsel in his Reply Brief.
I thus agree with the 1st Respondent that the instant appeal has been rendered academic and of no utilitarian value, the intended “mischief” having been corrected by DW2, subsequent to the filing of the interlocutory appeal. What the learned Silk for the Appellant should have done, should have been to withdraw this appeal as no longer necessary, the anticipated damage having been cured.
Courts of law must never be called upon and must not dissipate precious judicial time and energy in determining matters that have been rendered entirely academic and of no utilitarian value. Courts deal with live issues. See Anyanwu v Peoples Democratic Party (2020) 3 NWLR Part 1710 Page 134 at 176 Para G per Eko JSC, Dahiru v APC (2017) 4 NWLR Part 1555 Page 218 at 244 Para E-G per Rhodes-Vivour JSC, FRN v. Dairo (2015) 6 NWLR Part 1454 Page 141 at 170-181 Para H; (2015) All FWLR Part 776 Page 486 at 521 Para F-G per Nweze JSC.
The Preliminary Objection accordingly is upheld and succeeds. This appeal is dismissed as being an entirely academic exercise. The Appellant shall pay costs of N200,000 to the 1st Respondent.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother, OLUDOTUN A. ADEFOPE -OKOJIE JCA.
I agree with his reasoning and final conclusions. The preliminary objection by the 1st Respondent is meritorious and succeeds. This appeal is stuck out. I abide by the order as to cost.
EBIOWEI TOBI, J.C.A.: My learned brother, Oludotun A. Adefope-Okojie, JCA afforded me the privilege to read in draft the leading judgment just delivered. I also upheld the preliminary objection especially on the ground that the whole issues and argument has become academic and therefore makes it unnecessary to go into the issue, whether the lower Court was right in refusing the Counsel the opportunity to put questions to the witness to demonstrate the documents tendered from the bar. My Lord in the leading judgment has stated the facts culminating to this appeal. I will not repeat same here as it will not serve any useful purpose.
I will in agreeing with the leading judgment that the appeal has become academic I will refer to a few cases to buttress this in establishing when a matter before a Court becomes academic. An issue amounts to academic exercise when it is not a life issue before the Court as it does not decide the rights and liabilities of the parties before it. A Court is a busy place that should therefore not be involved in deciding issues which has no practical relevance to the matter that is in the front burner before the Court. It will amount to a complete waste of time to engage in academic exercise. The apex Court has stated in several cases that a Court should not allow itself to be dragged into deciding academic issues. In APC & Ors v. Enugu State Independent Electoral Commission & Ors (2021) LPELR-55337 (SC), the apex Court held:
“In Ardo vs INEC (2017) LPELR – 41919 (SC), this Court per Augie, JSC gave an in-depth analysis of what an academic or hypothetical suit is, to wit:
“What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question. See Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma Eneh further explained that-
‘An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when the determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt, that has lost its seasoning. And like salt in that state, it has no practical value to anybody and so also a suit in that state has none.”
In simple terms an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not ensure any right or benefit on a successful party.” Per KEKERE-EKUN, J.S.C.
Similarly, the apex Court in APC v. Enwerem & Ors (2022) LPELR-57816 (SC) held thus:
“I agree with him that in the circumstances of this case, looking into the merits or otherwise of the decision appealed against, is an exercise in futility, because it is nothing but an academic appeal, which does not require any answer from this Court – see Adeogun V. Fashogbon (2008) 17 NWLR (Pt. 1115) 149, wherein Tobi, JSC, stated:
Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic, or they are frolic- some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief.” Per AUGIE, J.S.C.
I cannot end this judgment without stating that counsel appearing in a case are ministers in the temple of justice and has the responsibility to assist the Court in arriving at a just decision on a matter before it. Since the evidence of DW2 takes care of whatever is the defect of the evidence of DW1, there is no need to make an issue of dumping of the documents. The scenario seems to be that the DW1 dumped the documents on the Court but before the Court trash the documents since it is not a dumping site, DW2 came to clear it up. In the circumstance, what was an issue is no longer one and so there is no need to delve into the matter of dumping.
I am confident in the light of the above and much more for the reasons in the leading judgment of my learned brother Oludotun A. Adefope-Okojie, JCA, I also uphold the preliminary objection.
I abide by the order for cost.
Appearances:
SOLOMON UMOH, SAN, with him, MATHEW ECHO, I.F. UKPAH, CALEB ADAGI, U.J. ATAN, SANTOS O. ENEJAH, and FELIX S. ABIODUN, For Appellant(s)
KALU ONUOHA, with him, IFUNAYA ORANUBA, IFEDIORA OSEGIBO, and MANDY NWORIE, – for 1st Respondent
STEPHAINE ABDULSALAAM, with him, ISRAEL AYENI, – for 2nd Respondent For Respondent(s)
