Moses v. Giadom

[2021]14NWLR329

Mosesv.Giadom

1.DELE MOSES

2.AZUNDA WORI

V.

1.HON. VICTOR GIADOM

2.ALL PROGRESSIVES CONGRESS [APC]

3.COMRADE ADAMS OSHIOMHOLE

4.RT. HONOURABLE IGO AGUMA

(Acting Chairman of All Progressives Congress,Rivers State)

5.BABATUNDE OGALA, ESQ.

(National Legal Adviser, All Progressives Congress)

SUPREME COURT OF NIGERIA

SC/CV/18/2021

AMINA ADAMU AUGIE, J.S.C. (Presided and Read the Leading Judgment)

ADAMU JAURO, J.S.C.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.

TIJJANI ABUBAKAR, J.S.C.

EMMANUEL AKOMAYE AGIM, J.S.C.

FRIDAY, 5TH MARCH 2021

ACTION – Academic or hypothetical issue – What amounts to -Attitude of court thereto.

APPEAL – Brief of argument – Reply brief – Function of.

APPEAL – Proper order – Where an appeal is academic – Ordercourt should make.

COURT – Academic or hypothetical issue – What amounts to -Attitude of court thereto.

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CO URT – Academic point – Meaning of – Attitude of court thereto.

COURT – Duty on court not to act in vain.

COURT – Proper order – Where an appeal is academic – Ordercourt should make.

JUDGMENT AND ORDER – Proper order – Where an appeal isacademic – Order court should make.

PRACTICE AND PROCEDURE – Academic or hypothetical issue- What amounts to – Attitude of court thereto.

PRACTICE AND PROCEDURE – Academic point – Meaning of -Attitude of court thereto.

PRACTICE AND PROCEDURE – Appeal – Brief of argument -Reply brief – Function of.

PRACTICE AND PROCEDURE – Court – Duty on court not to actin vain.

PRACTICE AND PROCEDURE – Proper order – Where an appealis academic – Order court should make.

WORDS AND PHRASES – Academic or hypothetical issue – Whatamounts to.

WORDS AND PHRASES – Academic point – Meaning of.

Issue:

Whether the Court of Appeal had the requisite jurisdictionto hear and determine the 1st respondent’s appeal, whichwas purely academic.

Facts:

In 2018, the 1st respondent resigned from his position as theDeputy National Secretary of the 2nd respondent, All ProgressivesCongress (APC), to contest in the General Elections of 2019, asDeputy Governor of Rivers State.

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Thereafter, he went back to his position as the Deputy NationalSecretary of the party. He later became National Chairman orActing National Chairman of the 2nd respondent, and a member ofits National Working Committee.

Enraged, the appellants, claiming to be fully registeredand financial members of the 2nd respondent (APC), took outan originating summons at the High Court of Rivers State, PortHarcourt, wherein they claimed, among other, a declaration thatsequel to the resignation of the 1st respondent as Deputy NationalSecretary in 2018, for the purposes of contesting in the 2019 GeneralElections as the Deputy Governor of Rivers State, he was no longerthe Deputy National Secretary of the 2nd respondent (APC).

The originating summons was filed on 19th June 2020 andon that same day; the appellants filed processes seeking injunctivereliefs, including a motion ex-parte.

In its ruling on the motion ex-parte, the trial court granted theorder of interim injunction sought by the appellants.

Upon being served with the enrolled order, the 1st respondententered conditional appearance and then appealed to the Court ofAppeal against the trial court’s ruling on the said ex-parte order ofinterim injunction.

The appellants, who were the 1st and 2nd respondents at the Courtof Appeal, raised a notice of preliminary objection in their brief,challenging the competency of the appeal. The 4th respondent, whowas 5th respondent, and the 5th respondent, who was 6th respondentat the Court of Appeal, also raised notices of preliminary objectionon very similar grounds in their briefs.

As at the time the Court of Appeal heard and determined theappeal, the ex parte order of interim injunction had lapsed, the 2ndrespondent had appointed another National Chairman, and the 1strespondent was no longer parading himself” or claiming to be theNational Chairman or Acting National Chairman of APC.

The Court of Appeal, in its judgment, dismissed the noticesof preliminary objection, allowed the appeal and struck out theappellants’ suit for want of jurisdiction on the part of the trial court.

Dissatisfied with the judgment of the Court of Appeal, theappellants appealed to the Supreme Court.

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Held.(Unanimously striking out the appeal):

1.On What amounts to academic or hypothetical issueand attitude of court thereto –

A suit is academic where it is merely theoretical,makes empty sound, and of no practical utilitarianvalue to the plaintiff, even if judgment is given inhis favour. An academic question does not relate tothe live issues in the litigation because it is spent asit will not enure any right or benefit on a successfulparty. An action becomes hypothetical or raisesmere academic point when there is no live matter init to be adjudicated upon or when its determinationholds no practical or tangible value for making apronouncement upon it; it is otherwise an exercisein futility. When an issue has become defunct, it doesnot require to be answered or controvert about andleads to making of bare legal postulations, whichthe court should not indulge in. It has no practicalvalue to anybody. [Adeogun v. Fashogbun (2008) 17NWLR (Pt. 1115) 149; Plateau State v. A.-G., Fed.(2006) 3 NWLR (Pt. 967) 346 referred to.] (Pp. 346-347, paras. G-D)

Per AUGIE, J.S.C. at page 348, paras. B-F:

“This is what triggered the first respondent’sappeal to Court of Appeal. He challenged thedecision of the trial court “on the ex-parteorder of interim injunction”. However, the exparte order of interim injunction had lapsed,the second respondent had appointed anotherNational Chairman, and the first respondentwas no longer “parading himself’ or claiming tobe its “National Chairman or Acting NationalChairman”, at the time the appeal was heardand determined by the Court of Appeal.

As Tobi, JSC, so aptly stated in Plateau Statev. A.-G., Fed. (2006) 3 NWLR (Pt. 976) 346, “asuit is academic where it is merely theoretical,makes empty sound, and of no practicalutilitarian value to the plaintiff, even ifjudgment is given in his favour”. The question

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in this case is – if respondents are right, whatwill be the relevance and effect thereof?

The answer, obviously, would be that anypronouncements on the said live issues willbe academic, as they will have no effectwhatsoever. The ex-parte orders of interiminjunction granted by the trial court hadlapsed, and the first respondent had stoppeddoing what he was doing, which propelled theappellants to institute the action in the firstplace, therefore, taking on the appeal will notenure any right or benefit on the successfulparty….”

2.On What amounts to academic or hypothetical issueand attitude of court thereto –

Academic and hypothetical issues or questions donot help in the determination of the live issues ina matter. They are merely on a frolic or they arefrolic-some; not touching or affecting the verytangible and material aspects in the adjudicationprocess. As a matter of law, they add nothing tothe truth searching process in administration ofjustice. This is because, they do not relate to anyrelief. [Adeogun v. Fashogbun (2008) 17 NWLR (Pt.1115) 149 referred to.] (P. 347, paras. C-E)

3.On What amounts to academic or hypothetical issueand attitude of court thereto –

There must exist between the parties to a suit oran appeal, a matter in actual controversy, whichthe court is called upon to decide as a living case,because on the basis of the extant grundnorm uponwhich our judicial authority is based, courts inthis country have no jurisdiction to give advisoryopinions. Any judgment, which does not decide aliving issue, is academic or hypothetical. It standsin its best qua lity only as an advisory opinion. TheSupreme Cour t, and indeed any court in Nigeria,will not engage in rendering such a judgment. There

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cannot be said to be a live issue in litigation if what ispresented to the court for a decision, when decided,cannot affect the parties thereto in any way eitherbecause of the fundamental nature of the reliefssought or of changed circumstances since after thelitigation started. So, that in the case of an appeal,the appeal may become academic at the time it isdue for hearing even though originally there wasa living issue between the parties. The fact that thedecision may help any of the parties to redirectits affairs in an entirely different or probablyanticipated situation, is irrelevant. In the instantcase, although there was a living issue between theparties when the appeal at the Court of Appeal wasfiled, however, because of changed circumstancesafter the appeal was filed, the appeal had becomeacademic, and the appellants were right that insuch circumstances, the Court of Appeal oughtto have struck it out. [C.P.C. v. I.N.E.C. (2011) 18NWLR (Pt. 1279) 493; A.-G., Fed. v. A.N.P.P. (2003)18 NWLR (Pt. 851) 182 referred to.] (Pp. 348-349,paras. F-D)

4.On When a point is said to be academic –

When a particular point is said to be academic, itpredominantly means that it has no real relevanceor effect. In other words, the act has been spent andis no longer of any benefit or value. Therefore, it isnot worth spending time or dissipating energy on itbecause it is merely theoretical. In the instant case,the ex-parte order of interim injunction made bythe trial court had lapsed; the 2 nd respondent hadappointed another National Chairman; and anydecision arrived at by the Court of Appeal wouldnot affect its leadership. In the circumstances, theappeal was spent. [Ijaodola v. Unilorin GoverningCouncil (2018) 14 NWLR (Pt. 1638) 32; Sanwo-Oluv. Awamaridi (2020) 11 NWLR (Pt. 1736) 458; Odumv. P.D.P. (2015) 6 NWLR (Pt. 1456) 527 referred to.](P. 349, paras. D-F)

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5.On Duty on court not to act in vain –

A court will not make an order in vain. In theinstant case, the academic exercise that the 1 stand 2 nd respondents were pressing on the SupremeCourt to embark upon was not entertained becausea court would not make an order in vain. [Oke v.Mimiko (No.1) (2014) 1 NWLR (Pt. 1388) 225; Odumv. P.D.P. (2015) 6 NWLR (Pt. 1456) 527 referred to.](P. 349, paras. F-G)

6.On Order court should make where an appeal isacademic –

The only order that can be made where an appeal isacademic is one striking out the appeal. The instantappeal was struck out for being academic. (P. 349,para. G)

7.On Function of a reply brief –

The function, aim or role of a reply brief is toanswer or deal with any new points arising fromthe respondent’s brief. In the instant appeal,the appellants filed a reply brief to the firstrespondent’s brief, wherein they reiterated somepoints already made in their main brief, which isoutside the ambit of a reply brief. [Dairo v. U.B.N.Plc (2007) 16 NWLR (Pt. 1059) 99 referred to.](P. 346, paras. A-B)

Nigerian Cases Referred to in the Judgment:

A.-G., Fed. v. A.N.P.P. (2003) 18 NWLR (Pt. 851) 182

A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1

A.P.G.A. v. Oye (2019) 2 NWLR (Pt. 1657) 472

Adeogun v. Fashogbun (2008) 17 NWLR (Pt. 1115) 149

Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489

Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437

C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493

Dairo v. UBN Plc (2007) 16 NWLR (Pt. 1059) 99

Ijaodola v. Unilorin Governing Council (2018) 14 NWLR (Pt.1638) 32

Military Gov., Lagos State v. Ojukwu (1986) 1 NWLR Pt. 18)621

Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554

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Odom v. P.D.P. (2015) 6 NWLR (Pt. 1456) 527

Oke v. Mimiko (No.1) (2014) 1 NWLR (Pt. 1388) 225

P.D.P. v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187

Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346

Sanwo-Olu v. Awamaridi (2020) 11 NWLR (Pt. 1736) 458

Topba v. F.R.N. (2020) 7 NWLR (Pt. 1724) 464

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999 (asamended), S. 6(6)(b)

Court of Appeal Act, S. 14

Book Referred to in the Judgment:

APC Constitution 2014 (as amended), Article 31(1)(iii)

Appeal:

This was an appeal against the decision of the Court of Appeal,which allowed the 1st respondent’s appeal against the ruling of thetrial court granting ex parte order of injunction, and struck outthe appellants’ action at the trial court. The Supreme Court, in aunanimous decision, struck out the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Amina AdamuAugie, J.S.C. (Presided and Read the Leading Judgment);Adamu Jauro, J.S.C.; Samuel Chukwudumebi Oseji,J.S.C.; Tijjani Abubakar, J.S.C.; Emmanuel AkomayeAgim, J.S.C.

Appeal No.: SC/CV/18/2021

Date of Judgment: Friday, 5th March 2021

Names of Counsel: F.C. Nwafor, Esq. (with him, B.W.Georgewill Esq.) – for the Appellants

Tuduru U. Ede, SAN (with him, Chief E.N. Ebete Esq.,C.W. Jerome Esq., Sheriff Adukke, Esq., and M.G. Bello,Esq.) – for the 1 st Respondent

M. S. Ibrahim, Esq. (with him, C. C. Agidi, Esq., NafisatJibril, Esq., G.O. Akpelu, Esq., and Aisha Ibrahim, Esq.)- for the 2 nd Respondent

Obinna Ajoku, Esq. (with him, Obinna Ezeodili, Esq.) -for the 3 rd Respondent

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Echezona Etiaba, SAN (with him, Nancy Shikaan, Esq.)- for the 4 th Respondent

Joy Etiaba, Esq. – for the 5 th Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Port Harcourt

Names of Justices that sat on the appeal: Peter OlabisiIge, J.C.A. (Presided and Read the Leading Judgment));Yargata Byenchit Nimpar, J.C.A.; Elfrieda OluwayemisiWilliams-Dawodu, J.C.A.

Appeal No.: CA/PH/226/2020

Date of Judgment: Tuesday, 29th December 2020

Names of Counsel: Tuderu U. Ude, SAN (with him, C. W.Jerome, Esq and M. S. Ibrahim, Esq.) – for the Appellant

F. C..Nwafor, Esq. (with him, B. W. Georgewill, Esq.) -for the 1st and 2nd Respondents

C. C. Agidi, Esq. – for the 3rd Respondent

Ezekiel Igbo, Esq. (with him, Daubry Ebizimo, Esq.) – forthe 4th Respondent

High Court:

Name of the High Court: High Court Rivers State, PortHarcourt

Name of the Judge: Fiberesima, J..

Suit No.: PHC/360/2020

Date of Judgment: Friday, 19th June 2020

Counsel:

F.C. Nwafor, Esq. (with him, B.W. Georgewill Esq.) – for theAppellants

Tuduru U. Ede, SAN (with him, Chief E.N. Ebete Esq., C.W.Jerome Esq., Sheriff Adukke, Esq., and M.G. Bello, Esq.) – forthe 1 st Respondent

M. S. Ibrahim, Esq. (with him, C. C. Agidi, Esq., Nafisat Jibril,Esq., G.O. Akpelu, Esq., and Aisha Ibrahim, Esq.) – for the 2 ndRespondent

Obinna Ajoku, Esq. (with him, Obinna Ezeodili, Esq.) – for the3 rd Respondent

Echezona Etiaba, SAN (with him, Nancy Shikaan, Esq.) – forthe 4 th Respondent

Joy Etiaba, Esq. – for the 5 th Respondent

Mosesv.Giadom

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AUGIE, J.S.C. (Delivering the Leading Judgment): In 2018, thefirst respondent resigned from his position as the Deputy NationalSecretary of the second respondent, to contest in the GeneralElections of 2019, as Deputy Governor of Rivers State. Thereafter,he went back to his position as the Deputy National Secretary ofthe party. He later became “National Chairman or Acting NationalChairman” of the second respondent, and a member of its NationalWorking Committee.

Incensed, appellants, as “fully registered and financialmembers”, of the second respondent (APC) took out an originatingsummons at the High Court of Rivers State, Port Harcourt, whereinthey claimed –

1.A declaration that sequel to the resignation of the 3rddefendant (Hon. Victor Giadom), as Deputy NationalSecretary – – in 2018, for the purposes of contesting inthe 2019 General Elections as the Deputy Governor ofRivers State, the 3rd defendant is no longer the DeputyNational Secretary.

2.A declaration that (Hon. Victor Giadom) is not amember of the National Working Committee (NWC)of the 1st defendant having resigned his membershipof the NWC of the 1st defendant for the purposes ofcontesting in the 2019 General Elections as the DeputyGovernor of Rivers State.

3.A declaration that the resignation of (Hon. VictorGiadom) as the Deputy National Secretary – – in 2018is valid and effective from 2018 till date.

4.A declaration that 3rd defendant (Hon. Victor Giadom)is not the National Chairman or Acting NationalChairman, or Deputy National Secretary or otherwisehowsoever a member of the NWC of the 1st defendant.

5.An order restraining the 3rd defendant (Hon. VictorGiadom) from issuing, signing or endorsing anydocument or correspondence to the IndependentNational Electoral Commission (INEC) or any otherbody or institution in the capacity of the NationalChairman or Acting National Chairman of the 1stdefendant or howsoever as an officer of the 1stdefendant.

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6.An order of perpetual (sic) restraining the 1st, 2nd, 4thand 5th defendants from recognizing or regarding the 3rddefendant as either; a member of the National WorkingCommittee (NWC), the Deputy National Secretary,National Chairman or Acting National Chairman ofthe 1st defendant.

They posed the following questions for determination by thetrial court:

1.Whether by the careful reading of article 31(1)(iii) ofAPC Constitution, an officer – – or member of NWCcan contest an election without first resigning – – in theabsence of a waiver properly applied for and validlygranted.

2.Whether having resigned as the Deputy NationalSecretary and member of NWC of the 1st defendant,in accordance with article 31 (1)(iii), which makesuch resignation compulsory, the 3rd defendant is stillentitled to parade himself or act as either the NationalChairman, Acting National Chairman, Deputy NationalSecretary, or member of the NWC of the 1st defendant.

3.Considering the provisions of article 31(1)(iii) of theAPC Constitution 2014 (as amended), whether the saidresignation of the 3rd defendant (Hon. Victor Giadom)as the Deputy National Secretary and member of theNWC of the 1st defendant is valid and effective.

The originating summons was filed on 19/6/2020 and on thatsame day, the appellants, as claimants, filed processes seekinginjunctive reliefs, including a motion ex-parte, and in its ruling, thetrial court stated thus:

I have carefully considered the submissions of counseland the processes filed in this application and I foundthat there is urgent need to consider the reliefs soughtby the applicants. Accordingly:

An order of interim injunction is hereby madegranted (sic) the reliefs contained in the ex-(1)parte motion.

Applicants are to enter an undertaking indamages to the respondents should thisapplication turn out to be frivolous or if this(2)order ought not to have been made.

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Mosesv.Giadom(Augie,J.S.C.)

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The enrolled order and the motion on notice(3)are to be served on the defendants/respondents.

Upon being served with the enrolled order, the first respondententered conditional appearance, then appealed to the Court ofAppeal against the trial court’s ruling on the said ex-parte order ofinterim injunction.

The appellants, who were the first and second respondents atthe Court of Appeal, raised a notice of preliminary objection in theirbrief, challenging the competency of the appeal on the followinggrounds:

The subject matter of this appeal are orders of the HighCourt of Rivers State made ex-parte over which theappellant does not have any right of appeal by virtue(a)of section 14 of the Court of Appeal Act.

The extant appeal being an interlocutory appeal, whosegrounds of appeal are at best those of mixed law andfact, the leave of the High Court or this court ought to(b)be sought before filing of the appeal.

The failure to seek either the leave of the High Courtor this court before filing this notice of appeal rendersthe extant appeal incompetent and incurably bad in(c)law.

The originating process in this appeal, the notice ofappeal was not served on the 1st and 2nd respondents(d)personally.

Indeed, the 1st and 2nd respondents were not servedwith the notice of appeal, whether personally or by(e)substituted means.

(f)The appeal is deserving only of an order of dismissal.

The fourth respondent herein, who was fifth respondent, andthe fifth respondent, who was sixth respondent at the court below,also raised notices of preliminary objection on very similar groundsin their briefs; and in its judgment of 29/12/2020, the Court ofAppeal held as follows:

The appellant does not require any leave to initiatethe appeal. It is an appeal as of right without muchado. More importantly, the appeal herein touches andconcerns only points of law and not of mixed law andfact. The provisions of the Constitution – – clearlyaccorded the appellant the right to file his appeal

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without leave – -The appellant’s appeal is, therefore,competent as no leave was/is required to initiate orfile the notice of appeal. The notice of preliminaryobjection filed by the 1st and 2nd respondents againstthe hearing of the appeal herein on the merit is herebydismissed – – By the same parity of reason, the 5th and6th respondents’ notice of preliminary objection arealso hereby dismissed.

It proceeded to consider the appeal on its merit, and on theissue as to whether the trial court had jurisdiction to entertain thesuit, it held that:

There is nothing in the entire 20 paragraphs affidavit — (stating or suggesting that the 1st and 2nd respondentsclaimants) utilized any of the provisions of article 21B to channel their grievances against the appellant toany organs of the Constitution of the 3rd respondentcontaining the layers of disputes resolution betweenparty members or organs of the 3rd respondent. Thus,it is glaring that the suit instituted by the 1st and 2ndrespondents – – was not instituted or commenced inaccordance with due process of law and upon thefulfilment of a vital condition precedent. It is a gravedefect and it is irredeemable. The said action by the1st and 2nd respondents is grossly incompetent andthe lower court lacks the jurisdiction to entertain oradjudicate upon it.

On the issue of granting substantive reliefs at the ex-partestage, it held:

The interim orders – – shows relief No.5 of theoriginating summons was granted as order No. 2.Relief No.6 – – was granted as order No.3, while reliefNo.4 – – was granted as order No.2 – – The said orderswere granted by the lower court in gross violation ofestablished principles and principles of law, whichprohibit such exercise of discretion by a court, whendetermining ex-parte motion or motion on notice forinterlocutory injunction or orders. The said orderswere made without jurisdiction.

In resolving the issue of whether they had locus standi, itstated that –

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A close and critical examination of the said questionsand reliefs sought and the entire paragraphs of theaffidavit in support of the originating summons clearlyshow that the civil rights and obligations of the 1st and2nd respondents cannot be said to have been or are indanger of being infringed or violated. None of the 1stand 2nd respondents was/is laying claim to the office orinterest to occupy the said office of Chairman or ActingChairman of the 3rd respondent. They were never inoffice as Chairman of 3rd respondent. The 1st and 2ndrespondents on their own volition have stated on oaththat 2nd defendant “is the current National Chairman”as at the date they instituted the action leading to thisappeal thereby showing and listing persons whoseinterest and obligations have been affected or infringedand not any of the 1st and 2nd respondents. They haveno cause of action or any reasonable cause of actionfor that matter. They could be likened to sympathizersweeping more that the bereaved.

It resolved the issue of whether by assuming jurisdiction, thetrial court was sitting on appeal over the decision of the FederalCapital Territory High Court, Abuja, against the appellant, and thenconcluded as follows:

Notwithstanding that issue is resolved against theappellant. The appellant’s appeal is quite meritoriousand it is hereby allowed having resolved issues (a),and in the appellant’s favour. It is trite law thatwhere a trial court is adjudged as having no jurisdictionto entertain or adjudicate on a matter, all orders ordecisions reached by the trial court will be declaredas null and void by the appellate court. All the ordersmade by the lower court in suit No. PHC/360/2020:Dele Moses & anor v. APC & ors are hereby declarednull void and of no effect whatsoever – – Consequently,all the orders made by the High Court of Rivers StateCoram Hon. Justice F. A. Fiberesima on 19/6/2020 insuit No. PHC/360/2020 are hereby set aside for lackof jurisdiction on the part of the High Court of RiversState to entertain or adjudicate on the said suit. It is also(b)hereby ordered that the said suit No. PHC/360/2020:

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Dele Moses & anor v. APC & 4 ors shall be and sameis hereby struck out for want of jurisdiction on the partof the lower court.

Dissatisfied with “the whole decision”, appellants appealed tothis court with a notice of appeal containing six grounds of appeal,and they have formulated six issues for determination in their briefof argument i.e.

Whether the Court of Appeal was right in holding thatthe 1st respondent has a right of appeal regarding ana.order made ex-parte?

Whether the Court of Appeal was right in holding thatthe 1st respondent’s appeal raises issues/points of lawb.alone?

Whether the Court of Appeal had the requisitejurisdiction to hear and determine the 1 st respondent’sc.appeal, which is purely academic?

Whether the Court of Appeal was not in grave error tohold that the appellants’ suit at the trial court was notcommenced in accordance with the due process of lawand upon fulfilment of condition precedent, even whenthe issue was neither raised at the trial court nor in thed.grounds of appeal to the Court of Appeal?

Whether the grant of preservative reliefs at ex-partestage by the trial court translates to granting substantivee.reliefs at ex-parte/interlocutory stage.

Whether the Court of Appeal was not in error to holdthat the appellants, as claimants at the trial court, didnot have the requisite locus standi to commence thef.suit?

The first respondent adopted the issues formulated by theappellants in his own brief of argument; however, he sought theleave of the court to argue the issue on whether this appeal isacademic or spent first. The second respondent also formulated sixissues in its brief: that is –

1.Whether the Court of Appeal was right in holding thatthe 1st respondent has a right of appeal against theorder made by the High Court?

2.Whether the Court of Appeal was right in holding thatthe 1st respondent’s appeal raises issues of points oflaw alone?

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3.Whether it can be said that the appeal at the lowercourt was academic?

4.Whether the Court of Appeal was right in its decisionthat the appellants’ suit at the trial (sic) was notcommenced in accordance with the due process oflaw?

5.Whether the Court of Appeal was right when it heldthat the trial court granted reliefs in the substantive suitat the ex-parte stage.

6.Whether the Court of Appeal was right in its decisionthat the appellants lacked locus standi to institute thesuit at the trial High Court?

There is no difference between the six issues formulated byappellants and the second respondent. Even so, I agree with thefirst respondent that their issue which is the same as secondrespondent’s issue 3, must be tackled first because if the appeal isacademic; that is the end, and it will not be necessary to consider allthe other issues they raised.

The appellants’ contention is that first respondent’s appealhad “become academic and spent before the Court of Appeal”, andthe court ought to have struck same out. They argued that at thetime the appeal was heard and determined, second respondent hadanother Chairman and the first respondent was no longer layingclaims to the position of National Chairman or Acting NationalChairman of second respondent; and that rather than uphold theobjection on that ground, which the first respondent did not deny,the Court of Appeal made no pronouncement on the objection, andfailed to strike out the first respondent’s appeal.

They submitted that it is not the function of the court toembark on abstract or academic exercise or speculation, becausethe courts are established to determine live issues; that a suit/appealis academic where there is no live issue, existing right or benefitthat will result from such determination, other than an opinion onthe matter, Topba v. FRN (2020) 7 NWLR (Pt. 1724) 464; Ijaodolav. Unilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32,Sanwo-Olu v. Awamaridi (2020) 11 NWLR (Pt. 1736) 458; Odomv. PDP (2015) 61 (Pt. 2) NSCQR 984, (2015) 6 NWLR (Pt. 1456)527 cited; and that in the circumstances of this case, the only orderthat the Court of Appeal ought to have made, is an order strikingout the said appeal.

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The first respondent argued that the issues in the appeal beforethe Court of Appeal “are not spent, are not academic, but live”;that it is not confined only to the issue of his acting as NationalChairman of APC; and that an appeal that has several issues, asin this case, can never be said to be academic “because there existlis between the parties upon which the court below pronounced ajudgment”, citing Military Gov. of Lagos State & ors v. Ojukwu(1986) 1 NWLR Pt. 18) 621 and Att. Gen., Fed. & ors v. Abubakar& ors (2007) 10 NWLR (Pt. 1041) 1 SC.

Furthermore, that grounds 1 to 6 of his grounds of appealraised issues relating to lack of jurisdiction, issue of granting at exparte stage the substantive reliefs, issues of the internal affairs of apolitical party, lack of jurisdiction to grant ex parte order of interiminjunction, and lack of locus standi, which were captured as issues(a)-(d) in his brief, and notwithstanding their preliminary objectionto the hearing of the appeal, the appellants herein adopted his issuesin their own brief, and that the court below examined the issues,and concluded it had no jurisdiction, therefore, the points/issueswere live, and were accordingly dealt with.

He submitted that although it is true that the appeal was overthe interim order of the trial court restraining him from paradinghimself as Acting National Chairman or National Chairman ofsecond respondent, other issues were also involved in the appealincluding jurisdiction; that jurisdiction can be raised for the firsttime on appeal, citing Anyanwu v. Ogunewe (2014) 8 NWLR (Pt.1410) 437 and PDP v. Ezeonwuka (2017) LPELR-42563(SC),(2018) 3 NWLR (Pt. 1606) 187; and so, the appeal cannot be saidto be academic.

The second respondent also argued that in the light of thereliefs sought by appellants at the trial Court, the Appeal cannot beacademic; that the fact of the change in its leadership, is only butone of the issues that were challenged; that first respondent raisedthe germane issue of justiciability of the suit, which bordered on itsinternal affairs; the fact that the appellants, who were not membersof its NWC, can challenge the composition of same, particularlywhen the erstwhile Chairman, who was sued as the 3rd defendant(i.e. third respondent) did not challenge the leadership structure,which saw him lose the seat. It cited APGA v. Oye & Ors (2018)LPELR-45196(SC), (2019) 2 NWLR (Pt. 1657) 472, and submittedthat the absence of jurisdiction of the trial court to have considered

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the suit filed by the appellants and proceed to grant injunctivereliefs, remains a live issue.

The appellants filed a reply brief to the first respondent’s brief,wherein they reiterated some points already made in their mainbrief, which is outside the ambit of a reply brief. The function, aimor role of a reply brief is to answer or deal with any new pointsarising from the respondent’s brief – Dairo v. UBN Plc (2007) 16NWLR (Pt. 1059) 99.

Even so, in response to the first respondent’s argumentregarding lis between the parties, and other live issues, they citedPlateau State v. A.G., Fed. (2006) 3 NWLR (Pt. 967) 346 andOdedo v. INEC (2008) LPELR-2204(SC); (2008) 17 NWLR (Pt.1117) 554, and submitted that the Court of Appeal’s judgment “is ofno practical utilitarian value” to first respondent, and cannot alsoaffect the leadership of second respondent; and that there cannotbe a live issue in litigation, when a decision cannot affect parties inanyway.

Furthermore, that an academic, hypothetical or moot pointdoes not deserve judicial pronouncement; that to attract any judicialdecision, there must be in existence a live issue or controversybetween litigants, and where there is no contest or where the resultof a judicial decision, will serve no purpose, it cannot be said thatthere exists any lis within the meaning of section 6(6)(b) of the1999 Constitution (as amended). Citing A.-G., Fed. v. ANPP (2003)18 NWLR (Pt. 851) 182, they urged this court to hold that therecannot be live issues in the appeal because:

As at the time the appeal was heard and determined,what was presented to the court for a decision, whendecided, did not affect the parties thereto in any waybecause of the changed circumstances since after theappeal at the lower court was filed.

I will say straight off that appellants are right. It is clear fromthe facts and circumstances of this case that the appeal is spent, it isacademic. The position of the law is that an academic question doesnot relate to the live issues in the litigation because it is spent as itwill not enure any right or benefit on a successful party – see Odedov. INEC (supra), Plateau State v. A.-G., Fed. (supra), and Agbakobav. INEC (2008) 18 NWLR (Pt. 1119) 489, wherein Chukwuma-Eneh, JSC, explained that –

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An action becomes hypothetical or raises mereacademic point when there is no live matter in it to beadjudicated upon or when its determination holds nopractical or tangible value for making a pronouncementupon it; it is otherwise an exercise in futility. Whenan issue has become defunct, it does not require tobe answered or controvert about and leads to makingof bare legal postulations, which the court should notindulge in; it is like the salt that has lost its seasoning.And like the salt in that state, it has no practical valueto anybody and so also, a suit in that state has none.

See also Adeogun v. Fashogbun (2008) 17 NWLR (Pt. 1115)149 SC, wherein this court, per Tobi, JSC, explained the principleas follows: –

Academic and hypothetical issues of questions do nothelp in the determination of the live issues in a matter.They are merely on a frolic or they are frolic-some; nottouching or affecting the very tangible and materialaspects in the adjudication process. As a matter oflaw, they add nothing to the truth searching process inadministration of justice. This is because they do notrelate to any relief.

In this case, the enrolled order of the trial court includes thefollowing:

1.That an interim injunction be and is hereby maderestraining the 3rd defendant/respondent acting byhimself or though his privies or agent — from paradinghimself as the National Chairman of the 1st defendantor Deputy National Secretary of the 1st defendant ormember of the NWC of the 1st defendant pending thedetermination of the motion on notice.

2.That an Interim Injunction be and is hereby maderestraining the 3rd defendant/respondent from issuing,signing or endorsing any document to INEC or anyother body or institution in the capacity as NationalChairman or Acting National Chairman of the 1stdefendant/respondent or officer of the 1st defendant/respondent or whatsoever capacity pending the hearingand determination of the motion on notice.

3.That an order of interim injunction be and is herebymade restraining the 1st, 2nd, 4th defendants, acting by

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themselves or through any of their officers, agents orprivies from recognizing or regarding the defendant(sic) as the National Chairman – – or Acting NationalChairman – – or Deputy National Secretary – – memberof NWC of the 1st defendant/respondent pending thehearing and determination of the motion on notice.

This is what triggered the first respondent’s appeal to Courtof Appeal. He challenged the decision of the trial court “on the ex-parte order of interim injunction”. However, the ex parte order ofinterim injunction had lapsed, the second respondent had appointedanother National Chairman, and the first respondent was no longer“parading himself’ or claiming to be its “National Chairman orActing National Chairman”, at the time the appeal was heard anddetermined by the Court of Appeal.

As Tobi, JSC, so aptly stated in Plateau State v. A.-G., Fed.(2006) 3 NWLR (Pt. 967) 346-

“a suit is academic where it is merely theoretical, makesempty sound, and of no practical utilitarian value to theplaintiff, even if judgment is given in his favour”.

The question in this case is – if respondents are right, what will bethe relevance and effect thereof?

The answer, obviously, would be that any pronouncements onthe said live issues will be academic, as they will have no effectwhatsoever. The ex-parte orders of interim injunction granted bythe trial court had lapsed, and the first respondent had stopped doingwhat he was doing, which propelled the appellants to institute theaction in the first place, therefore, taking on the appeal will notenure any right or benefit on the successful party – see CPC v. INEC(2011) 18 NWLR (Pt. 1279) 493, and A.-G., Fed. v. ANPP (supra),wherein Uwaifo, JSC, observed that –

It is settled law that there must exist between the partiesto a suit or an appeal, a matter in actual controversy,which the court is called upon to decide as a livingcase – – because on the basis of the extant grundnormupon which our judicial authority is based, courtsin this country have no jurisdiction to give advisoryopinions. Any judgment, which does not decide aliving issue, is academic or hypothetical. It stands inits best quality only as an advisory opinion. This court,and indeed any court in Nigeria, will not engage inrendering such a judgment – – There cannot be saidto be a live issue in litigation if what is presented to

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the court for a decision, when decided, cannot affectthe parties thereto in any way either because of thefundamental nature of the reliefs sought or of changedcircumstances since after the litigation started. So,that in the case of an appeal, the appeal may becomeacademic at the time it is due for hearing even thoughoriginally there was a living issue between the parties.I think the fact that the decision may help any of theparties to redirect its affairs in an entirely different orprobably anticipated situation, is irrelevant.

The observation of Uwaifo, JSC, in A.-G., Fed. v. ANPP(supra), speaks directly to this case. What it says loud and clearly isthat although there was a living issue between the parties when thesaid appeal was filed, however, because of changed circumstancesafter the appeal was filed, the appeal had become academic, and theappellants are right that in such circumstances, the Court of Appealought to have struck it out.

As the appellants submitted, when a particular point is said tobe academic, it predominantly means that it has no real relevanceor effect. In other words, the act has been spent and is no longerof any benefit or value, therefore, it is not worth spending time ordissipating energy on it because it is merely theoretical – Ijaodolav. Unilorin Gov. Council (supra), Sanwo-Olu v. Awamaridi (supra)and Odom v. PDP (supra).

In this case, the ex-parte order of interim injunction had lapsed;the second respondent appointed another National Chairman; andany decision arrived at by the Court of Appeal would not affect itsleadership.

In the circumstances, I agree with the appellants that the appealis spent. The academic exercise that first and second respondentsare pressing on this court to embark upon will not be entertainedbecause a court will not make an order in vain – Oke v. Mimiko(No.1) (2014) 1 NWLR (Pt. 1388) 225. The only order that can bemade is one striking out the appeal. The appeal is struck out. I makeno order as to costs.

JAURO, J.S.C.: I read in draft, the lead judgment of my learnedbrother, Amina Adamu Augie, JSC just delivered. I am in agreementwith the reasoning and the conclusion contained therein.

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I adopt the reasoning and conclusion contained in the judgmentas mine and join my brother in striking out the appeal. I abide bythe consequential orders made in the lead judgment.

OSEJI, J.S.C.: I had the advantage of reading in draft, the leadjudgment just delivered by my learned brother, Amina AdamuAugie, JSC. True to type my lord has exhaustively and adequatelyconsidered and addressed the issues in contention in the appealand I completely agree with the reasonin g and conclusion that theappeal is unmeritorious. I have nothing extra to add.

Accordingly, I hold that the appeal lacks merit and I alsodismiss it.

I abide by the consequential orders made in the lead judgment.

ABUBAKAR, J.S.C.: My Lord and learned brother, Augie, JSCgranted me the privilege of reading in draft, the leading judgmentprepared and rendered in this appeal. My Lord has fully coveredthe field in the leading judgment. I am therefore in full agreementwith the reasoning and conclusion and adopt the judgment as mine.I have nothing extra to add. I abide by all consequential ordersincluding the order on costs.

AGIM, J.S.C.: I had a preview of the draft judgment of my learnedbrother, Lord Justice Amina Adamu Augie, JSC. I completely agreewith the reasoning, conclusions, decisions and orders therein.

Appeal struck out.

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