Ifeanyichukwu E. R. Okonkwo V. Attorney-general of Anambra, State & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
This is an appeal against the decision of the High Court of Justice, Anambra State (hereinafter referred to as “The Lower Court”) delivered on 14th day of July 2004 by Iyizoba J., wherein she inter alia, held that there was no lis between the plaintiff/appellant and the present respondents who were some of the defendants thereat. The learned trial judge struck out the suit filed by the plaintiff/appellant also because the suit was unsustainable, academic, a futile exercise and that the complaint or claims made by the plaintiff were overtaken by event. Aggrieved by the decision of the lower court supra the appellant appealed to this court.
The facts of the case which gave rise to this appeal are briefly summarized hereunder. The appellant as plaintiff at the lower court, instituted an action by way of Originating Summons against the thirty two defendants who included Dr. Clement Chinwoke Mbadinuju, the then Governor of Anambra State, Hon. Barth Onugbolu, the Speaker of the Anambra State House of Assembly; the Peoples Democratic Party (PDP) and the Inspector General of Police (IGP) as 2nd, 4th, 32nd, 31st defendants/respondents respectively and a host of other principal officers of both the executive and legislative arms of Government of Anambra State including the Hon. Attorney General of the said State. In the course of the proceedings at the lower court however, some of the defendants, for instance the majority leader of the House of Assembly Hon. Okenwa Osukpo (8th Defendant) died and his name was struck out.
It needs to be stated here, that in the Originating Summon file in the lower court, the plaintiff formulated thirteen questions for determination and also sought twenty-three reliefs. The said Originating Summons had in its support a 170 paragraph affidavit with seventeen exhibits annexed to it. A further affidavit of five paragraphs was also later filed by the plaintiff annexing to it seven additional exhibits.
Looked cursorily, the main or major complaints of the plaintiff in the Originating Summons was the alleged unconstitutional manner in which Dr. Mbadinuju, the then governor of Anambra State, was said to have on 29th day of December 2000 (which was the last working day of that year) procured the Anambra State House of Assembly to pass a into law Supplementary Appropriation Bill of 2000 which involved a sum of N3.585 billion which said action according to him (plaintiff) breached the provisions of Section 120(2)-(4) of the Constitution of the Federal Republic of Nigeria 1999. The plaintiff also made several accusations or allegations of corrupt, fraudulent or criminal manner in which the former Governor (2nd Defendant/respondent) and were allegedly managing the funds of Anambra State Government and the PDP were governing the affairs of the State. He said all these actions by the 2nd, 3rd, 4th, 5th, 7th, 26th, 29th, 30th and 31st defendants/respondents in the management of the affairs of the government of Anambra State were unconstitutional and had amounted to violation of the oaths of office of those defendants/respondents.
The plaintiff in an effort to establish his claim against the defendants/respondents at the lower court made some far reaching averments in his affidavit supporting the Originating Summons. Notable among these averments, are the followings:-
“140. That it is a fact the 2nd Defendant in alliance with 3rd, 4th, 5th to 26th, the 29th, 30th and 31st defendants violated the 1999 Constitution of the Federal Republic of Nigeria in their purported dealing with the funds of the Anambra State people held in the State Consolidated Revenue Fund/Account.
- That the 2nd, 29th and 30th Defendants had illegally and unconstitutionally appropriated the funds belonging to the first Defendant more so including the plaintiffs own share of the Democracy Dividends, and caused the Plaintiffs stagnation and economic immobility, the deprivation of welfare benefits as enshrined in the Constitution of the Federal Republic of Nigeria under participatory democracy.
- That irreparable harm will be done to the next administration in Anambra State when the plaintiff must have won election, come 2003, to assume the office of the Executive Governor of the 1st Defendant, if the corrupt and visionless Government of the 2nd Defendant is not checked and made accountable to the people, by the urgent entertainment of this case by the Honourable Court.
- The Plaintiff who shall contest as a candidate for the office of the Governor of the 1st defendant in 2003, and had already flagged off his campaign, will suffer psychological fit, and avoidable hardship as a result of the 1st defendant’s overexposure to financial institutions; general state of abandoned and unviable projects, unbalanced budget and general economic downturn when he assumes office as Governor come 2003 due to the illegal and unconstitutional acts of the 2nd, 5th, 29th, and 30th defendants now challenged.
- That the object of the dispute between the Plaintiff and 2nd and 3rd defendants concerned the unconstitutional exercise of power/authority over the funds of Anambra State vide an illegal Supplementary Appropriation Bill tagged Anambra State of Nigeria Supplementary Appropriation Law No. 10 of 2000 upon which the sum of N3,585,003,470 (N3.585 billion was illegally withdrawn.
- That I verily believe that unless this Honourable Court intervenes that the Plaintiffs ambition to inherit a balanced Budget will not be realizable, in the event he succeeds in the 2003 Governorship elections.
- That in the illegal act by the 2nd, 5th, 29th and 30th defendants which is an infraction of a criminal nature, by unconstitutionally taking away the sum of N3.585 billion belonging to the 1st Defendant and creating a Law the effect of an impossibility through a retrospective operation of the statute to regularize the frauds, it is constitutional for the 32nd Defendant to investigate the allegation.
- The illegal act of the 2nd, 5th, 29th and 30th Defendants which is an infraction of a criminal nature by unconstitutionally taking away the sum of N3.584 billion belonging to the 1st creating a Law with the effect of an impossibility through a retrospective operation of the statute to regularize the frauds, it is constitutional for the 32nd defendant to investigate the allegation.”
It is with regard to the above averments that the plaintiff/appellant sought some of the under listed reliefs:-
“(M) A declaration that the sum of N3.585 billion appropriated by 2nd, 3rd, 29th, and 30th defendants purported acting under the Anambra State of Nigeria, And that the funds where stolen from the State Treasury.
(T) A declaration that the illegal and unconstitutional acts of the 2nd, 5th, 29th, and 30th defendants more particularly the 2nd and 5th defendants by making the Anambra State of Nigeria Supplementary Appropriation Law No.10 of year 2000 have a retrospective effect without a valid authority, and the Illegal withdrawal by the 2nd, 29th and 30th defendants of the sum of N3.585 billion is a sort of misfeasance; abuse of office, a breach of their Various oath of offices (sic), all are impeachable offences warranting Their removal from offices.
(V) An Order directing the 32nd defendant to investigate the activities Surrounding illegal back dating retrospectively of the Anambra State of Nigeria Supplementary Appropriation Law No. 10 2000 and the Unconstitutional withdrawal of sum of N3.585 billion under that Illegal Law.
(X) An Order directing the Attorney General of Anambra state to prosecute the 2nd, 5th, 29th and 30th defendant for their rolls (sic) in the illegal back dating of the 2000 year Supplementary Appropriation Law No. 10 and the stealing of the funds of Anambra State in the sum of N3.585 billion.
(Y) An order directing the 3rd, 4th defendants to issue a notice of the 2nd defendant pursuant to Section 188 of the 1999 Constitution for his immediate impeachment and removal from office.”
As I stated earlier, the lower court refused to grant any of the reliefs sought by the plaintiff for reasons I remarked above, hence the plaintiff became dissatisfied with the decision of the lower court striking out his suit and he thereby appealed to this court vide a Notice of Appeal dated 29/7/04.
Briefs of Argument were filed and exchanged by some of the parties. The appellant’s brief of argument dated 4th May 2005 was filed on the same day. Therein, he formulated two issues for determination which read thus:-
(1) Whether the decision of the trial court that the suit of the plaintiff/appellant is academic and overtaking (sic) by events is not a misconception of the use of the appellant notwithstanding the fact that the Originating Summons and the evidence in support therein, is for the construction of a written law, the validity of the Anambra State Supplementary Law No.10 of the year 2000?
(2) Whether the trial court was right in law by its refusal to grant some of the declaratory reliefs sought by the Plaintiff/Appellant in the Originating Summons despite the fact that evidence in support of the reliefs sought was never contradicted conformance (sic) with the principle in the case of Director SSS vs. Agbakoba (1999) 3 NWLR (Pt. 595) 314 at 354 per Uwais CJN?
Only the 1st, 2nd, 3rd, 6th, 29th and 30th Respondents were represented in court on the 17th November 2008 when this appeal was taken. However a joint brief of argument dated 18/11/2005 was on 21/11/2005 filed on behalf of 1st, 2nd, 6th, 29th and 30th Respondent’s even though on 17/11/2008 when the appeal was taken, leave was granted to the 3rd respondent to be represented by the learned counsel for the above-mentioned respondents, Mr. Ugo Abana and the 3rd respondent was allowed to be covered by the said brief filed on 21/11/2005. So the brief now covers 1st, 2nd, 3rd, 6th, 29th, and 30th respondents. The 4th, 5th, 7th – 28th, and 31st – 32nd respondents were therefore not represented in the appeal and did not file any brief of argument.
In the said respondents’ brief of argument filed on behalf of 1st, 2nd, 3rd, 6th and 30th respondents, one issue for determination was filed which is “whether the trial court was right in striking out the suit summarily”. In my considered view, the treatment of this appeal on the above named respondents’ brief will sufficiently determine the entire appeal as that issue also subsumed the two issues proposed by the appellant herein. I shall therefore be guided by it in the determination of the appeal.
The learned counsel for the appellant submitted that the learned trial was in error when he found that the suit filed before him was targeted at removal or impeaching the 2nd respondent and when he also held that the plaintiff/appellant and 2nd defendant/respondent contested for the Anambra State gubernatorial seat at the one last but one election alongside with the 31st defendant/respondent, Dr. Chris Ngige. He said such finding of fact by the trial court was never canvassed by the parties at the trial and the court had therefore no power to manufacture evidence or to draw conclusions of facts outside the available evidence hence such conclusion is perverse. See State v. Aibangbee (1988) 7 SC (Pt.1) 96 at 142. He added that the role of a court is to pronounce on and determine issues in controversy raised before it in the pleadings and the evidence adduced before it. See Comptoir Commercial & Ind. SPR Ltd. v. Ogun State Water Corp & Anor. (2002) 9 NWLR (Pt.773) 629 at 651; Management Enterprises Ltd. vs. Jonathan Otunsanya (1987) 4 SCNJ 110; Ugwu vs. Abe (1961) All NLR 438; Ojo v. Babalola (1991) 4 NWLR (Pt. 185) at 280. He said the trial judge raised such issue suo motu without calling on the parties or their counsel to address him on it contrary to the provisions of section 36(1) of Constitution of the Federal Republic Nigeria 1999. He stated that he was not given a fair hearing as he was not heard at all by the trial judge. See Irom v. Okumbe (1988) 3 NWLR (Pt.540) 19 at 25. On that note, he also submitted that the learned trial judge did not hear his case hence this court could intervene. See Adejugbe v. Ologunja (2004) 6 NWLR (Pt. 868) 46 at 70.
With regard to the trial court’s refusal to grant any of the reliefs sought by the appellants, the latter’s counsel stated that the lower court is in error because even some of the reliefs he sought are declaratory and some directory orders, the court could still granted some of the reliefs which were supported by evidence, hence he urged this court to grant same. He prayed us to invoke the provisions of Evidence Act and presume the guilt of the defendants. He cited Director of SSS vs. Agbakoba (1999) 3 NWLR (Pt.595) 315 where the Supreme Court held that a declaratory relief could be granted in a suit initiated by an Originating summons and evidence is led in contradistinction with suits commenced by Writ of Summons when there is default of pleadings by the defendant.
Replying to the appellant’s counsel’s submissions above, the learned respondent’s counsel submitted that the trial court was right in striking out the plaintiff’s case because it had become academic and was overtaken by event. He argued that by virtue of the provisions of Section 6(6) (b) of the 1999 Constitution, courts have jurisdiction to adjudicate on matter or actions and proceedings which are in dispute or lis only. That is to say, matters which are subject of controversy or dispute between parties only or matter in conflict of claims or rights or assertion of rights. He further submitted that a court must have jurisdiction before it can exercise judicial powers in a matter. See Okesuji vs. Lawal (1991) 2 SCNJ 1. He added that jurisdiction is fundamental in an action and a court must have jurisdiction to try a case before it can exercise any form of judicial power in a case or matter. See Wada Nas vs. Adesanya (2003) FWLR (Pt. 145) 868) at 691 – 692; Akinbobla vs. Plesson Fisko (1991) 1 NWLR (Pt. 167) 270.
On the reliefs sought by the plaintiff/appellant in his Originating Summons, the learned counsel submitted that reading them along most of the paragraphs supporting the Originating Summons would leave no one in any doubt that they are inseparably linked to one another to the extent that failure or success of one will, ipso facto, lead to the failure or success of the other and should therefore be construed together. He said the facts on which interpretation is sought have been overtaken by events and had thus become a moot exercise or merely hypothetical questions or events. The court therefore lacked jurisdiction to determine them. See Olaniyi vs. Aroyehun (1991) 5 NWLR (Pt. 194) 652; Adelaja & Ors vs. Alode & Anor. (1999) 6 NWLR (Pt.608) 544 SC; Julius Berger Nig. Ltd. v. Fetuin (1993) 5 NWLR. He again argued that court had no power to claim to determine disputes where none actually exists or where such disputes had ceased to exist and should thus not grant orders in vein. See Commissioner of Works Benue State & Anor v. Devcom Dev Consultants Ltd & Anor (1988) 7 SCNJ 1; NNSC v. Sabone Ltd. (1988) 2 NWLR (1988) 2 NWLR (Pt. 74); Nemis v. The State (1994) 10 SCNJ 1 at 45; Sanusi v. Ayoola (1992) 9 NWLR (1992) 9 NWLR (Pt. 265) 275.
The learned respondents’ counsel also submitted that the plaintiff/appellant invoked a wrong process by initiating suit under Originating Summons since one of his reliefs is that the defendants’ purported action should be investigated and prosecuted for committing criminal office. He argued that criminal trials are not conducted through affidavit evidence or by Originating Summons since standard of proof in criminal matters is proof beyond reasonable doubt. See Nwobodo vs. Onoh (1983) 14 NSCC 470 at 480. See also Section 138 Evidence Act; Keyamo v. Lagos State House of Assemble (2000) 12 NWLR (Pt.680) 196; Omoijahe vs. Elimoru (1999) 8 NWLR (Pt. 614) 178 at 191/192.
The learned counsel also argued that since the action was commenced though a wrong procedure, it is fatal and the suit is liable to be struck out. See Onifade vs. Olayikole (1990) 7 NWLR (Pt.161) 130; UBN Plc v. Odusote Books Stores Ltd. (1995) 9 NWLR (Pt. 421) 558. On this point, he again submitted that where the facts of a case are controversial or contentious such case cannot be ascertained without evidence being adduced, Originating Summons should not be used and if so used, it should be discountenanced as the court lacks jurisdiction to entertain the action in form and substance. See Obasanjo v. Babafemi (2000) 15 NWLR (Pt. 689); Kankara vs. Commissioner of Police Katsina State (2002) 1 NWLR (Pt. 785) 596) at 608/610.
A calm and in-depth study of the averments in the affidavit supporting the Originating Summons clearly convinces oneself that the pith of the grouse of the plaintiff at the lower court centred on the alleged unconstitutional manner in which Dr. Clement Chinwoke Mbadinuju, the then Governor of Anambra State (2nd defendant/respondent), administered the state. The plaintiff/appellant’s main grouse was that the said governor on the 29th of December 2000 (which was the last working day of that year), allegedly procured the defunct Anambra State House of Assembly to pass into law, a Supplementary Appropriation Bill 2000 to the tune of N3.585 billion. That alleged action according the plaintiff/appellant run riot and violence to the provisions of the 1999 Constitution of the Federal Republic of Nigeria 1999. To justify his complaint, the plaintiff/appellant, somewhere in some of the paragraphs in his affidavit supporting the Originating Summons averred that the bad governance of the governor (2nd defendant) would adversely affect his ambition to become a governor of Anambra State in 2003, when he contests for that seat. For these reasons, the plaintiff/appellant included as part of the reliefs he sought before the trial court, that he (the then governor), be impeached with dispatch.
The plaintiff/appellant besides, also alleged that the then governor with the aid or connivance of some of the defendants stole some funds from the coffers of the Anambra State government. Sequel to that allegation, he also invited the trial court to, in one breath, find them guilty and in another breath, he said the Inspector-General of Police (32nd defendant) to investigate the matter.
It is on the backdrop of these allegations or accusations as averred in the affidavit supporting the Originating Summons and the reliefs sought, that the learned trial Judge in her considered judgment delivered on the 14th July 2004, found that the subject matter of the plaintiffs claims/reliefs were mere academic issues which were overtaken by events. It is instructive to note that this suit which gave rise to this appeal was filed before the trial court on 7th September 2001 through an Originating Summons dated same day. In the suit the plaintiff (now appellant) formulated thirteen questions for determination by the court and sought twenty three reliefs. The Originating Summons was supported by one hundred and seventy (170) paragraphs also to which seventeen exhibits were annexed. The plaintiff also later filed five (5) supplementary exhibits. Initially the suit was before the then chief judge of Anambra State (G.U. Ononiba C.J.) who later consolidated the applications and on 12/2/2000 when he was about to retire, transferred it to Iyizoba J. As could be gleaned from the record, the main complaints of the plaintiff now appellants at the lower court are fourfold, namely:-
“(i) The alleged unconstitutionality of the Anambra State of Nigeria Supplementary Appropriation Bill passed into law by the State House of Assembly (members of which are some of the defendants or respondents herein) as Supplementary Appropriation Law) No. 10 of 2000.
(ii) The ultra vires act of the Anambra State House of Assembly in passing the said Bill on 29/12/2000.
(iii) The alleged flagrant breach of the Constitution of the Federal Republic of Nigeria of 1999 by some of the defendants namely 2nd, 3rd, 4th, 7th, 28th, 29th, 30th, and 31st defendants in the management of the affairs of the 1st defendant and
(iv) The alleged violation of the Oaths of office by the 2nd, 4th, 7th, 29th, and 30th defendants.
I have in the fore paragraphs of this judgment set out some weighty depositions in the Originating Summons where some accusations were made against some of the defendants/respondents mentioned above.
To my mind, the pith of the plaintiffs grouse is based on Supplementary Appropriation Bill which had already been passed in to law by the House of Assembly as Supplementary Appropriation Law No. 10 of 2000 to the tune of N3.585 billion. The plaintiff in a move to challenge the action of the defendants/respondents filed his application by Originating Summons only on 17th September 2001. That is to say more than a year after the appropriation law had been passed and possibly the said amount approved by the law had been or was about to be appropriated by the government. Again as at the time when judgment now being appealed against was delivered that is to say 14th July, 2004, most, if not all of the defendants now respondents were no more occupying the offices they were holding as at the time the actions in which they were accused of committing or alleged to have committed was filed. The issue now is, Can it be said that there is LIVE issue which the learned trial judge could determine then? I do not think so. For instance, one of the reliefs claimed by the plaintiff in his application was the impeachment of the 2nd defendant/respondent then the governor of Anambra State. It is a matter of common knowledge that as at the time the case was disposed of by the lower court, the 2nd defendant/respondent was no longer the governor of Anambra State. Then, ‘Of what use will it serve the plaintiff or the public at large if an order of impeachment is made on 2nd defendant when he is not occupying that office any longer’? The plaintiff also in one of the prayers contended that the lower court should find that some of the defendants had stolen the sum of N3.585 billion which is the amount approved in the Supplementary Appropriation Law No. 10 of 2000 and also that the lower court to find them guilty or direct one of the defendants the Inspector General of Police (the 32nd defendant), to investigate the case and that the Hon. Attorney General Anambra State to prosecute them. The nagging question again is ‘Is the lower court the appropriate body to do that and is the Originating Summons the appropriate process to be invoked in calling for the prosecution of someone accused of stealing money? I fully endorse the submissions of the learned counsel for the respondents to the effect that issue of alleged stealing of the N3.585 billion in the Supplementary Appropriation Law No. 10 of 2000 or investigation of the matter by the IGP and the call for impeachment of the named defendants/respondents are matters which are no longer LIVE issues, since they have all been overtaken by events. The LIS therefore no longer exists. The issues or disputes have therefore now been rendered merely academic. In the case of Attorney General of the Federation V. ANPP (2003) 18 NWLR (Pt. 851) 182, the Supreme Court had this to say at page 222 on issues which are academic:-
“Courts of law do not embark on academic exercise because they are not academic institutions. Therefore 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 issue. This is because on the basis of the extant ground norm upon which the judicial authority of the courts is based, courts in Nigeria 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.
The Supreme Court and other courts in Nigeria will not engage in rendering such a judgment… See Akeredolu v. Akindeme (1986) 2 NWLR (Pt. 25) 710; Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379; Tanimole v. Surveys and Mapping Geodate Ltd (1995) 6 NWLR (Pt. 403) 617.”
Courts are always enjoined to adjudicate between parties with regard to matters relating to their legal rights only and not to engage in matters which are mere academic discourse; no matter how erudite or beneficial it may be to the public at large. See Union Bank vs. Edionseri (1988) 2 NWLR (Pt. 74) 93; Adelaja v. Alade (supra); Julius Berger (Nig.) Ltd. vs. Femi (1993) 5 NWLR (Pt. 295) 612. Indeed courts have no jurisdiction or competence to embark on advisory or abstract academic opinion. See Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652.
In the surrounding circumstances of the instant case, if the lower court had granted any of the reliefs sought by the plaintiff/appellant such a grant would amount to granting a relief or order in vain, since the defendants sued in the action do not occupy the office(s) any more due to effluxion of their tenure of office. It is trite and settled law, that courts do not grant an order in vain. See Commissioner of Works Benue State vs. Dev. Consultants Ltd and Anor (1988) 7 SCNJ 1; NNS v. Sabana & Co. Ltd. (1988) 2 NWLR (Pt. 74) 23. Again, in the case of Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt.464 15, the Supreme Court held per Kutigi JSC (as he then was) at page 41 (Para. B to C as follows:-
“It will in my view, be subversive for the court of law to claim to determine disputes where non-existed or had ceased to exist.”
In that case the order asked for was refused because it had been overtaken by events or effluxion of tenure. This is the same situation with the present case because the issues raised became mere academic or a mere moot exercise too. The learned trial judge in my view, was right in striking out the plaintiffs/appellant’s suit, since as he rightly observed, the suit concerned the administration of Dr. Mbadinuju which was replaced by another administration of Dr. Chris Ngige. The grant of any of the reliefs sought by the plaintiff/appellants will therefore tantamount to revisiting acts of an administration which was as at the time he delivered the judgment no longer in office or is moribund. To that extent therefore, any decision or order made by the lower court would be rendered mere advisory opinion. The lower court as such lacked jurisdiction to grant the reliefs since it has been overtaken by event. There is also no LIVE or existing issue or lis or dispute between the parties to be determined by the lower court as at the time it delivered its judgment. The dictum of Nnaemeka-Agu JSC in the case of Union Bank of Nigeria Ltd. vs. Alhaji Bisi Edionseri (1988) 2 NWLR (Pt. 74) 93 is very much apposite to the instant case, where he said at page 105 as below:-
“So, under the constitution there must be a lis between any of the persons named in Section 6 before any of the courts can involve (sic) its judicial power. Conversely, where there is no lis between the parties this court has no jurisdiction as it cannot indulge in the luxury of a mere advisory opinion no matter how beneficial it may be to the legal profession or the world at large. It has no constitutional power to do so.”
Apropos of all that I have said supra, I would venture to say that I am unable to see any cogent reason why I should interfere with the findings of the learned trial judge. Her decision is unassailable. I do not therefore see any merit in this appeal. It fails and I accordingly dismiss it. The decision of the lower court striking out the plaintiffs/appellant’s claims before it is hereby affirmed.
No order is made on costs.
Other Citations: (2009)LCN/3107(CA)
