Moses & Anor V. Giadom & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

In 2018, the first respondent resigned from his position as the Deputy National Secretary of the second respondent, to contest in the General Elections of 2019, as Deputy Governor of Rivers State. Thereafter, he went back to his position as the Deputy National Secretary of the party. He later became “National Chairman or Acting National Chairman” of the second respondent and a member of its National Working Committee.

Incensed, appellants, as “fully registered and financial members”, of the second respondent (APC) took out an originating summons at the High Court of Rivers State, Port Harcourt, wherein they claimed –

1. A declaration that sequel to the resignation of the 3rd defendant (Hon. Victor Giadom) as Deputy National Secretary – in 2018, for the purposes of contesting in the 2019 General Elections as the Deputy Governor of Rivers State, the 3rd defendant is no longer the Deputy National Secretary.
2. A declaration that (Hon. Victor Giadom) is not a member of the National Working Committee (NWC) of the 1st defendant having resigned his membership of the NWC of the 1st defendant for the purposes of contesting in the 2019 General Elections as the Deputy Governor of River State.
3. A declaration that the resignation of (Hon. Victor Giadom) as the Deputy National Secretary – in 2018 is valid and effective from 2018 till date.
4. A declaration that 3rd defendant (Hon. Victor Giadom) is not the National Chairman or Acting National Chairman, or Deputy National Secretary or otherwise howsoever a member of the NWC of the 1st defendant.
5. An order restraining the 3rd defendant (Hon. Victor Giadom) from issuing, signing or endorsing any document or correspondence to the Independent National Electoral Commission (INEC) or any other body or institution in the capacity of the National Chairman or Acting National Chairman of the 1st defendant or howsoever as an officer of the 1st defendant.
6. An order of perpetual (sic) restraining the 1st, 2nd, 4th and 5th defendants from recognizing or regarding the 3rd defendant as either, a member of the National Working Committee (NWC), the Deputy National Secretary, National Chairman or Acting National Chairman of the 1st defendant.

They posed the following questions for determination by the trial Court:

1. Whether by the careful reading of Article 31(1)(iii) of APC Constitution, an officer or member of NWC can contest an election without first resigning ..in the absence of a waiver properly applied for and validly granted.
2. Whether having resigned as the Deputy National Secretary and member of NWC of the 1st defendant, in accordance with Article 31 (1)(iii), which make such resignation compulsory, the 3rd defendant is still entitled to parade himself or act as either the National Chairman, Acting National Chairman, Deputy national Secretary, or member of the NWC of the 1st defendant.
3. Considering the provisions of Article 31(1)(iii) of the APC Constitution 2014 (as amended), whether the said resignation of the 3rd defendant (Hon. Victor Giadom) as the Deputy National Secretary and member of the NWC of the 1st defendant is valid and effective.

​

The originating summons was filed on 19/6/2020 and on that same day, the appellants, as claimants, filed processes seeking injunctive reliefs, including a motion ex-parte, and in its ruling, the trial Court stated thus: I have carefully considered the submissions of counsel and the processes filed in this application and I found that there is urgent need to consider the reliefs sought by the applicants. Accordingly:

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

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

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

Upon being served with the enrolled order, the first respondent entered conditional appearance, then appealed to the Court of Appeal against the trial Court’s ruling on the said ex-parte order of interim injunction.

The appellants, who were the first and second respondents at the Court of Appeal, raised a notice of preliminary objection in their brief, challenging the competency of the appeal on the following grounds:

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

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

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

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

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

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

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

The appellant does not require any leave to initiate the appeal. It is an appeal as of right without much ado. More importantly, the appeal herein touches and concerns only points of law and not of mixed law and fact. The provisions of the Constitution clearly accorded the appellant the right to file his appeal without leave. The appellant’s appeal is, therefore competent as no leave was/is required to initiate or file the notice of appeal. The notice of preliminary objection filed by the 1st and 2nd respondents against the hearing of the appeal herein on the merit is hereby dismissed. By the same parity of reason, the 5th and 6th respondents’ notice of preliminary objection are also hereby dismissed.

It proceeded to consider the appeal on its merit, and on the issue as to whether the trial Court had jurisdiction to entertain the suit, it held that:

“There is nothing in the entire 20 paragraphs affidavit (stating or suggesting that the 1st and 2nd respondents claimants) utilized any of the provisions of Article 21 B to channel their grievances against the appellant to any organs of the Constitution of the 3rd respondent containing the layers of disputes resolution between party members or organs of the 3rd respondent. Thus it is glaring that the suit instituted by the 1st and 2nd respondents was not instituted or commenced in accordance with due process of law and upon the fulfilment of a vital condition precedent. It is a grave defect and it is irredeemable. The said action by the 1st and 2nd respondents is grossly incompetent and the lower Court lacks the jurisdiction to entertain or adjudicate upon it.

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

The interim orders shows relief No.5 of the originating summons was granted as order No. 2. Relief No.6 was granted as order No.3, while relief No.4 was granted as order No.2 .The said orders were granted by the lower Court in gross violation of established principles and principles of law, which prohibit such exercise of discretion by a Court when determining ex-parte motion or motion on notice for interlocutory injunction or orders. The said orders were made without jurisdiction.

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

A close and critical examination of the said questions and reliefs sought and the entire paragraphs of the affidavit in support of the originating summons clearly show that the civil rights and obligations of the 1st and 2nd respondents cannot be said to have been or are in danger of being infringed or violated. None of the 1st and 2nd respondents was/is laying claim to the office or interest to occupy the said office of Chairman or Acting Chairman of the 3rd respondent. They were never in office as Chairman of 3rd respondent. The 1st and 2nd respondents on their own volition have stated on oath that 2nd defendant “is the current National Chairman” as at the date they instituted the action leading to this appeal thereby showing and listing persons whose interest and obligations have been affected or infringed and not any of the 1st and 2nd respondents. They have no cause of action or any reasonable cause of action for that matter. They could be likened to sympathizers weeping more that the bereaved.

​It resolved the issue of whether by assuming jurisdiction, the trial Court was sitting on appeal over the decision of the Federal Capital Territory High Court, Abuja, against the appellant, and then concluded as follows:

Notwithstanding that issue is resolved against the appellant. The appellant’s appeal is quite meritorious and it is hereby allowed having resolved issues (a) and (b) in the appellant’s favour. It is trite law that where a trial Court is adjudged as having no jurisdiction to entertain or adjudicate on a matter, all orders or decisions reached by the trial Court will be declared as null and void by the appellate Court. All the orders made by the lower Court in suit No. PHC/360/2020: Dele Moses & Anor v. APC & Ors are hereby declared null void and of no effect whatsoever. Consequently, all the orders made by the High Court of Rivers State Coram Hon. Justice F. A. Fiberesima on 19/6/2020 in suit No. PHC/360/2020 are hereby set aside for lack of jurisdiction on the part of the High Court of Rivers State to entertain or adjudicate on the said suit. It is also hereby ordered that the said suit No. PHC/360/2020: Dele Moses & Anor v. APC & 4 Ors shall be and same is hereby struck out for want of jurisdiction on the part of the lower Court.

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

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

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

c. Whether the Court of Appeal had the requisite jurisdiction to hear and determine the 1st respondent’s appeal, which is purely academic?

d. Whether the Court of Appeal was not in grave error to hold that the appellants’ suit at the trial Court was not commenced in accordance with the due process of law and upon fulfilment of condition precedent, even when the issue was neither raised at the trial Court nor in the grounds of appeal to the Court of Appeal?

e. Whether the grant of preservative reliefs at ex-parte stage by the trial Court translates to granting substantive reliefs at ex-parte/interlocutory stage.

f. Whether the Court of Appeal was not in error to hold that the appellants, as claimants at the trial Court, did not have the requisite locus standi to commence the suit?

The first respondent adopted the issues formulated by the appellants in his own brief of argument; however, he sought the leave of the Court to argue the issue on whether this appeal is academic or spent first. The second respondent also formulated six issues in its brief; that is-

1. Whether the Court of Appeal was right in holding that the 1st respondent has a right of appeal against the order made by the High Court?
2. Whether the Court of Appeal was right in holding that the 1st respondent’s appeal raises issues of points of law alone?
3. Whether it can be said that the appeal at the lower Court was academic.
4. Whether the Court of Appeal was right in its decision that the appellants’ suit at the trial (sic) was not commenced in accordance with the due process of law?
5. Whether the Court of Appeal was right when it held that the trial Court granted reliefs in the substantive suit at the ex-parte stage.
6. Whether the Court of Appeal was right in its decision that the appellants lacked locus standi to institute the suit at the trial High Court?

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

The appellants’ contention is that first respondent’s appeal had “become academic and spent before the Court of Appeal”, and the Court ought to have struck same out. They argued that at the time the appeal was heard and determined, second respondent had another Chairman and the first respondent was no longer laying claims to the position of National Chairman or Acting National Chairman of second respondent; and that rather than uphold the objection on that ground, which the first respondent did not deny, the Court of Appeal made no pronouncement on the objection, and failed to strike out the first respondent’s appeal.

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

The first respondent argued that the issues in the appeal before the Court of Appeal “are not spent, are not academic, but live”; that it is not confined only to the issue of his acting as National Chairman of APC; and that an appeal that has several issues, as in this case, can never be said to be academic “because there exist lis between the parties upon which the Court below pronounced a judgment”, 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 appeal raised issues relating to lack of jurisdiction, issue of granting at ex parte stage the substantive reliefs, issues of the internal affairs of a political party, lack of jurisdiction to grant ex parte order of interim injunction, and lack of locus standi, which were captured as issues (a)-(d) in his brief, and notwithstanding their preliminary objection to the hearing of the appeal, the appellants herein adopted his issues in their own brief, and that the Court below examined the issues, and concluded it had no jurisdiction, therefore, the points/issues were live, and were accordingly dealt with.

He submitted that although it is true that the appeal was over the interim order of the trial Court restraining him from parading himself as Acting National Chairman or National Chairman of second respondent, other issues were also involved in the appeal including jurisdiction; that jurisdiction can be raised for the first time 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 said to be academic. The second respondent also argued that in the light of the reliefs sought by appellants at the trial Court, the Appeal cannot be academic; that the fact of the change in its leadership, is only but one of the issues that were challenged; that first respondent raised the germane issue of justiciability of the suit, which bordered on its internal affairs; the fact that the appellants, who were not members of its NWC, can challenge the composition of same, particularly when 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 submitted that the absence of jurisdiction of the trial Court to have considered the suit filed by the appellants and proceed to grant injunctive reliefs, 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 main brief, which is outside the ambit of a reply brief. The function, aim or role of a reply brief is to answer or deal with any new points arising from the respondent’s brief – Dairo v. UBN Plc (2007) 16 NWLR (Pt. 1059) 99.

Even so, in response to the first respondent’s argument regarding lis between the parties and other live issues, they cited Plateau State v. A.G. Fed. (2006) 3 NWLR (Pt. 967) 346 and Odedo v. INEC (2008) LPELR-2204(SC); (2008) 17 NWLR (Pt. 1117) 554, and submitted that the Court of Appeal’s judgment “is of no practical utilitarian value” to first respondent, and cannot also affect the leadership of second respondent; and that there cannot be a live issue in litigation, when a decision cannot affect parties in anyway.

Furthermore, that an academic, hypothetical or moot point does not deserve judicial pronouncement; that to attract any judicial decision, there must be in existence a live issue or controversy between litigants, and where there is no contest or where the result of a judicial decision, will serve no purpose, it cannot be said that there exists any lis within the meaning of Section 6(6)(b) of the 1999 Constitution (as amended). Citing A.-G., Fed. v. ANPP (2003) 18 NWLR (Pt. 851) 182, they urged this Court to hold that there cannot 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, when decided, did not affect the parties thereto in any way because of the changed circumstances since after the appeal at the lower Court was filed.

I will say straight off that appellants are right. It is clear from the facts and circumstances of this case that the appeal is spent, it is academic. The position of the law is that an academic question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party – see Odedo v. INEC (supra), Plateau State v. A.-G., Fed. (supra), and Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489, wherein Chukwuma-Eneh, JSC, 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 its 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 the salt in that state, it has no practical value to anybody and so also, a suit in that state has none.

See alsoAdeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 SC, wherein this Court, per Tobi, JSC, explained the principle as follows: –

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.

​In this case, the enrolled order of the trial Court includes the following:

1. That an interim injunction be and is hereby made restraining the 3rd defendant/respondent acting by himself or though his privies or agent — from parading himself as the National Chairman of the 1st defendant or Deputy National Secretary of the 1st defendant or member of the NWC of the 1st defendant pending the determination of the motion on notice.
2. That an Interim Injunction be and is hereby made restraining the 3rd defendant/respondent from issuing, signing or endorsing any document to INEC or any other body or institution in the capacity as National Chairman or Acting National Chairman of the 1st defendant/respondent or officer of the 1st defendant/respondent or whatsoever capacity pending the hearing and determination of the motion on notice.
3. That an order of interim injunction be and is hereby made restraining the 1st, 2nd, 4th defendants, acting by themselves or through any of their officers, agents or privies from recognizing or regarding the defendant (sic) as the National Chairman or Acting National Chairman or Deputy National Secretary/member of NWC of the 1st defendant/respondent pending the hearing and determination of the motion on notice.

This is what triggered the first respondent’s appeal to Court of Appeal. He challenged the decision of the trial Court “on the exparte order of interim injunction”. However, the ex parte order of interim injunction had lapsed, the second respondent had appointed another National Chairman, and the first respondent was no longer “parading himself’ or claiming to be its “National Chairman or Acting National Chairman”, at the time the appeal was heard and determined 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, makes empty sound, and of no practical utilitarian value to the plaintiff, even if judgment is given in his favour”.

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

The answer, obviously, would be that any pronouncements on the said live issues will be academic, as they will have no effect whatsoever. The ex-parte orders of interim injunction granted by the trial Court had lapsed, and the first respondent had stopped doing what he was doing, which propelled the appellants to institute the action in the first place, therefore, taking on the appeal will not enure 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 parties to a suit or an appeal, a matter in actual controversy, which the Court is called upon to decide as a living case … because on the basis of the extant grundnorm upon which our judicial authority is based, Courts in this country have no jurisdiction to give advisory opinions. Any judgment, which does not decide a living issue, is academic or hypothetical. It stands in its best quality only as an advisory opinion. This Court, and indeed any Court in Nigeria, will not engage in rendering such a judgment. There cannot be said to be a live issue in litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So, that in the case of an appeal, the appeal may become academic at the time it is due for hearing even though originally there was a living issue between the parties. I think the fact that the decision may help any of the parties to redirect its affairs in an entirely different or probably 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 is that although there was a living issue between the parties when the said appeal was filed, however, because of changed circumstances after the appeal was filed, the appeal had become academic, and the appellants are right that in such circumstances, the Court of Appeal ought to have struck it out.

As the appellants submitted, when a particular point is said to be academic, it predominantly means that it has no real relevance or effect. In other words, the act has been spent and is no longer of any benefit or value, therefore, it is not worth spending time or dissipating energy on it because it is merely theoretical – Ijaodola v. 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; and any decision arrived at by the Court of Appeal would not affect its leadership.

​In the circumstances, I agree with the appellants that the appeal is spent. The academic exercise that first and second respondents are pressing on this Court to embark upon will not be entertained because 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 be made is one striking out the appeal. The appeal is struck out. I make no order as to costs.

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