Hon. Bimbo Adepoju & Ors V Olona Yinka & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
F. F. TABAI, JSC
This is an appeal against two rulings of the Court of Appeal Ibadan dated the 9th March, 2010 and 15th July, 2010 respectively. In the ruling of the 9th March, 2010, the Court of Appeal granted the 1st – 13th Respondents motion for stay of proceedings pending the determination of an appeal which they claimed was pending before this Court. While in the ruling of the 15th July, 2010, the court below granted the 1 – 13 Respondents application to strike out the appeal on the ground that it had become merely academic.
The parties have, through their counsel filed and exchanged their briefs of arguments. The Appellants brief filed on the 11th October, 2010 was settled by Chief Akin Olujinmi SAN. He also prepared the Appellants Reply brief filed on the 6th January, 2011. The brief of the 1st – 13th Respondents was prepared by H. O. Afolabi Esq. It was filed on the 10th December, 2010. That of the 14th Respondent was prepared by L. A. Ganiyu and same was filed on the 9th May, 2011.
In the Appellants Brief, the following four issues for determination were presented: –
(i) Whether the lower court was right in striking out the Appellants appeal without considering the merits of the appeal on the ground that the appeal had become academic and there was no live issue left in it.
(ii) Whether the lower court was right in law in holding that the term of office of the Appellants expired on 24th May, 2010
(iii) Whether the lower court was right in failing to hold that the various applications of the Respondents were designed to prevent the early hearing and determination of the appeal
(iv) Whether the lower court was right in granting the 1st – 13th Respondents application for stay of proceedings notwithstanding that there was no appeal filed to the Supreme Court to predicate the application for stay of proceedings.
The Respondents also adopted the foregoing as the issues that call for determination in this appeal.
With respect to issues (i), (ii) and (iii), the substance of the arguments of Chief Akin Olujinmi SAN in the Appellants Brief is as follows:-
It was learned senior counsels submission that lapse of time would not prevent the hearing and determination of a case that raises substantial issues of law when it was initiated. Once a person aggrieved by the action of another comes to court to seek redress, the court has a duty to jealously guard its jurisdiction and determine the case to its finality, he argued. In support of this submission, counsel relied on AMAECHI Vs INEC (2008) 5 NWLR (part 1080) 227 at 323 – 324 and 367 – 368 and ADEOGUN Vs FASHOGBON (2008) 17 NWLR (part 1115) 149 at 168 and 174. According to learned senior counsel, pre-election and election cases are time-sensitive and argued that the many applications persisted in by the Respondents were designed to frustrate the hearing of this case and were therefore abuses of the court process. Learned senior counsel argued that the case and the appeal before the lower court was not one for extension of tenure but rather one for the restoration of the appellants to their term. Learned senior counsel argued that although defacto time may run, but dejure time cannot run until the issues in contention in a case have been adjudicated upon.
With respect to issue (iv) on the lower courts grant of stay of proceedings on the 9th March, 2010, learned senior counsel pointed out that on the 9th march, 2010 the Appellants still had two and a half mouths to the 24th of May 2010 when their term expired. It was further argued that but for the stay granted, the lower court would have been able to determine the appeal before the 24th May, 2010. It was counsels further argument that there was no pending appeal and that even if there was an appeal pending, the court below ought not to have granted a stay of proceedings. Finally, it was urged that the appeal be allowed.
On behalf of the 1st -13th Respondents H. O. Afolabi filed a Notice of Preliminary Objection which is argued in paragraphs 2.00 to paragraph 2.09 of their brief of argument. It was counsels submission that issue (iv) is incompetent since ground (iv) of the grounds of appeal upon which it is predicated is incompetent. Learned counsel argued that the ruling of the 9 March, 2010 appealed against granted a stay of proceedings pending the determination of the motion for stay of proceedings at the Supreme Court. Learned counsel argued that since the motion for stay of proceedings at the Supreme Court has been struck out (see page 636 of the record), the ruling of the 9th of March, 2010 was no longer subsisting for any appeal.
The appeal, he argued, has become merely academic. Reliance was placed on OKULATE Vs AWOSANYA (2000) 2 NWLR (part 646) 530 at 550 – 551, and DABO Vs ABDULLAH! (2005) 7 NWLR (part 923) 181 at 205
It was further submitted that since the decision of the 9th of March, 2010 was an interlocutory one, an appeal against it must be within 14 days of the decision as required under Section 27(2) (a) of the Supreme Court Act. For it to be rightly incorporated into the main appeal, the Appellants ought to have sought and obtained an order for extension of time to appeal, counsel argued. In the absence of such an order for extension of time, ground four of the grounds of appeal and issue (iv) based thereon are incompetent, learned counsel submitted. It was further argued that the decision whether or not to grant stay of proceedings is a discretionary one based on facts and is therefore a decision of mixed law and facts and that an appeal against such a decision must be with the leave of either the court below or this Court. It was counsels submission therefore that in the absence of such leave, the appeal is incompetent. Reliance was placed on UGENAJA Vs AKITOYE-SOWEMIMO (2008) 16 NWLR (part 1113) 278 at 294.
On issues (i), (ii) and (iii) learned counsel argued that the term of office of the Appellants lapsed on the 24th of May, 2010 and referred to the Notice of Appeal at pages 331 – 336A of the record and paragraph 7 of the Appellants counter affidavit at pages 627 – 630 of the record wherein the Appellants themselves conceded that their term of office lapsed on the 24th of May, 2010. Learned counsel argued therefore that the lower court was right when it held in its decision on the 15 of July, 2010 that there was no longer any live issue. He argued that both AMAECHI Vs INEC (supra) and ADEOGUN Vs FASHOGBON (supra) were distinguishable from the instant case since in both cases since the term of office of the contenders was still available. Reliance was placed on OKOTIE-EBOH Vs MANAGER (2004) 18 NWLR (part 904) 242 at 284 – 285, and COMPT N.P.S. Vs ADEKANYE (No 3) (2002) 15 NWLR (part 790) 362 at 374. In conclusion, counsel urged that the appeal be dismissed.
The arguments of L. A. Ganiyu in the 14th Respondents brief of arguments runs substantially as follows. He adopted the arguments of the 1st – 13th Respondents on the preliminary objection. With respect to the first issue, learned counsel referred to Section 25 (3) of the Local Government System Law of Oyo State 2001 and the fact that the Appellants took their Oath of Allegiance and Oath of Office on the 25th May, 2007 and submitted that the Appellants three year term of office ended on the 24th May, 2010 due to effluxion of time.
It was his submission therefore that there was no longer any live issue for determination; that the issues which called for determination in the case have become merely academic. Learned counsel referred to JULIUS BERGER (NIG) LTD Vs V-FEMI (1993) 5 NWLR (part 295) 612 at 616; DAVID WEST Vs ODUWOLE (2003) FWLR (part 40) 146 at 154 – 155; PLATUEAU STATE Vs A. G. FEDERATION & ANOR (2006) 1 SCN 130 at 186. In the circumstances, counsel argued, the case was rightly struck out.
The arguments of learned counsel on the 2nd issue is, in substance, to the same effect as those on the first issue. It was his contention that the three year term which the action sought to protect ended on the 24th May, 2010 and that by the 25th May, 2010 the action had abated and was liable to be struck out. Learned counsel argued that the clear literal interpretation as to the tenure of office of the Appellants must be given and that the result of such an interpretation must necessarily end in the striking out of the appeal.
With respect to the 3rd and 4th issues, learned counsel argued, the Court below having come to the conclusion that the action had abated due to effluxion of time it was no longer necessary to take other pending applications. On the 4th issue, learned counsel adopted the argument of the 1st – 13th Respondents in their brief.
In the Appellants Reply Brief learned senior counsel argued that learned counsel for the Respondents misconceived the force and purpose of ground (iv) of the grounds of appeal and the issue predicated thereupon. It was his submission that the success of that ground and the issue would lead to this courts decision that the court below was wrong in not hearing and determining the substantive appeal on the merits.
It was senior counsels contention that the delay was occasioned by the Respondents and same could not therefore operate to oust the courts jurisdiction. It was his further submission that the principles in AMAECHI Vs INEC (supra), ADEOGUN Vs FASHOGBON (supra) and ODEDO Vs INEC (part 1117) 554 applied to this case.
Still on the preliminary objection, learned senior counsel submitted that the law does not require leave to raise and question an interlocutory decision in an appeal. He relied on ILOABUCHI Vs EBIGBO (2000) 8 NWLR (part 668) 197 at 218; OKOBIA Vs AJANYA (1998) 7 NWLR (part 554) 348 and UMANA Vs ATTAH (2004) 7 NWLR (part 871) 63 at 86. On the contention by the Respondents that ground 4 of the grounds of appeal is one of mixed law and facts for which leave ought to have been sought and obtained, learned senior counsel submitted that where a ground of appeal alleges a misunderstanding of the law or misapplication of the law to established facts, it is a ground of law. It was also his contention that where the appeal questions the lower courts evaluation before the application of the law it is a ground of mixed law and facts. It was his submission therefore that since the ground only complains of misapplication of the law to facts not in dispute it is a ground of law for which therefore no leave is required. It was urged therefore that the preliminary objection be overruled.
On the merits of the appeal, learned senior counsel reiterated the principles in AMAECHI Vs INEC and ODEDO Vs INEC and argued that if the appeal succeeds it would only amount to reinstating the Appellants as chairmen of their various Local Government Councils entitling them to their arrears of salaries.
I have considered the arguments of counsel for the parties. Let me deliberate first on the preliminary objection. In its ruling on the 9th of March, 2010, the Court below granted stay of its proceedings pending the determination of an application for stay of proceeding then pending at the Supreme Court. In its concluding paragraph, the court reasoned and concluded thus:
‘There is no doubt that if this application is refused and the hearing of the appeal proceeds, the decision of the Supreme Court on the application for stay of proceedings would be rendered nugatory. Thus, much as we sympathise with the anxiety of the respondents in the present circumstances, having had notice of an application for stay of proceedings before the Supreme Court which has been set down for hearing, prudence and respect for the hierarchy of our courts dictates that the proceedings before this Court should be stayed pending the determination of the application before the Supreme Court The proceedings before this Court are accordingly stayed pending the determination of the application now before the Supreme Court’
On Tuesday the 4th day of May, 2010 the Supreme Court ruled on the application in the following terms:-
‘Application filed on 7th January 2010 is hereby struck out N30,000.00 costs to the 1st – 15th Respondents.’
The contention of the Respondents is that by reason of the above ruling of the Supreme Court the ground of Appeal No. (iv) and the issue No. (iv) emanating therefrom have become merely academic. There is force in this argument. The stay of proceeding was granted pending the determination by the Supreme Court of the application for stay of proceedings. In other words, the stay of proceedings granted at the court below was only meant to subsist until the Supreme Courts decision on the application then pending before it.
Following the decision of the Supreme Court on the 4th of May, 2010 striking out the application for stay of proceedings, the stay of proceeding granted by the court below on the 9th of March, 2010 ended and the Appellants were from the 4th of May, 2010 free to prosecute their appeal to its logical conclusion. The notice of this appeal was dated and filed on the 27th of July, 2010 On the said 27th of July, 2010 therefore, the stay of proceedings no longer existed and its propriety or legality was no longer available for questioning in this appeal. A fortiori, it no longer serves any useful purpose for this court to deliberate upon and answer the question of whether the lower court was right in granting the 1st – 13th Respondents application for stay of proceedings. On this ground alone, the preliminary objection is sustained. The fourth ground of appeal and the fourth issue derived therefrom are accordingly struck out.
With respect to the 1st, 2nd and 3rd issues for determination, the question is whether the principles in AMAECHI Vs INEC (supra) ADEOGUN Vs FASHOGBON (supra) and ODEDO Vs INEC (supra) applied to this case. As regards AMAECHI Vs INEC (supra) the following are the salient facts. Sometime in December, 2006 Rt. Hon. Chibuike Amarchi contested the PDP primary election for Rivers State to nominate the PDP candidate for the governorship election scheduled for April 2007. He contested against seven other candidates and won overwhelmingly. Out of the total of 6,575 votes he scored 6,527 votes. The 2nd Respondent, Celestine Omehia never took part in the said primary election.
Pursuant thereto the PDP forwarded Chibuike Amaechis name to INEC as its candidate on the 14th December, 2006.
Soon thereafter there was evidence that the PDP wanted to substitute Chibuike Amaechis name with that of the 2nd Respondent, Celestine Omehia. On or about the 26th January, 2007 Chibuike Amaechi initiated an action at the Federal High Court wherein he sought a number declaratory and injunctive reliefs to ensure that he remained the PDPs candidate and to prevent the planned substitution. Despite this action which was being diligently prosecuted, the substitution was made. The governorship election was conducted and the PDP emerged the winner and the 2nd Respondent, Celestine Omehia, was sworn in as the Governor of River State. The case went through the High Court to the Court of Appeal and the Supreme Court. In its final judgment on the 25th October, 2007, the Supreme Court allowed the appeal of Chibuike Amaechi set aside the substitution and declared in effect that in the eyes of the law it was the Appellant, Chibuike Amaechi, that was the PDP candidate at the election and he was thus immediately sworn in as the governor of Rivers State.
The crucial point of the decision in AMAECHI Vs INEC as it related to this appeal is that as at the 25th of October, 2007 when the Supreme Court gave its judgment, the four year term of office of Governor of Rivers State was still subsisting, the 2nd Respondent having utilised only about 5 months of the four year term. From the 29th May, 2007 when the four year term started to run there was still subsisting not less than three years and seven months of the term. I laving held that i n the eyes of the law Chibuike Amaechi was the candidate of the PDP and in view of the (act that not less than three years and seven months of the Governors four year term was still subsisting, the court made the consequential order which resulted in Amaechi as the Governor of Rivers State. In the peculiar circumstances of the case the order was what the justice of the case deserved.
The question now is whether the attitude of this court would have been different if the governors four year term had expired at the time of its judgment. I do not think so. There would certainly have been other intervening circumstances and the court would probably not have ordered Chibuike Amaechi’s inauguration as Governor of Rivers State. 1 hold, in the circumstances that the principle in AMAECHI Vs INEC (2008) 5 NWLR (part 1080) 227 do not apply in this case.
I wish to point, out that the case between AMAECHI and INEC which is more apposite to the issue in contention in this case is RT. HON. CHIBUIKE ROTIMI AMAECHI Vs INEC (2007) 18 NWLR (part 1065) 42. The brief facts are that while the appeal and cross-appeals were pending at the Court of Appeal, the PDP purportedly expelled Hon. Rotimi Amaechi and some others from the party. Following this purported expulsion, two motions were filed. Each prayed for order striking out or dismissing the appeal for the courts lack of jurisdiction. The grounds of the applications were stated to be that:-
‘1. The appeal is now incompetent by reason of the expulsion of the appellant/respondent from the Peoples Democratic Party (PDP) thereby making the outcome of the suit a mere academic exercise.
- By reason of the expulsion of the appellant/respondent from the Peoples Democratic Party, he has lost locus standi to prosecute this appeal’
In its ruling, the Court of Appeal granted the motions, holding that it no longer had the jurisdiction to hear and determine the appeal and cross-appeals. They were accordingly stuck out.
The Plaintiff/Appellant was dissatisfied with the ruling and came on appeal to this Court. By its unanimous decision, this Court allowed the appeal. In my little contribution at page 48 of the report I had this to say:-
‘The Court of Appeal erred in law when it declined jurisdiction to hear and determine the appeals pending thereat. A Court which hitherto has the jurisdiction to hear and determine a matter cannot, by the precipitate action of the defendant lose that jurisdiction simply because the defendant wants it so. After all, it is settled law that it is the plaintiffs claim in a matter that determines the jurisdiction of the court.
SEE AKINFOLARIN Vs AKINNOLA (1994 3 NWLR (part 335) 659; ADEYEMI Vs OPEYURI (1976) 9-10 SC31 at 51. The 3rd Defendant/Respondent therefore cannot, by its expulsion of the Plaintiff/Appellant prevent the court from hearing and determining the complaints against it I hold that the Court of Appeal has the jurisdiction to hear the appeals.’
The above principle was applied in CHIEF ALBERT ABIODUN ADEOGUN & ONOR Vs HON. JOHN OLAWOLE FASHOGBON & ORS (supra).
The principle re-emphasised in these cases is that the court must at all times jealously guard its jurisdiction to hear a case to its conclusion and determine, on the merits, the rights and obligations of the contending parties by either granting or refusing the reliefs claimed; that it should avoid the temptation of terminating a case at the instance of a defendant on the allegation that by reason of some intervening circumstances during the pendency of the case, the court no longer has jurisdiction – and this is particularly so where the rights and obligations sought to be enforced are still available.
In the instant appeal under consideration, however, the rights and obligations sought to be enforced are no longer available, the three year term of office of the Appellants as Chairmen of their various Local Government Councils having expired. The feet that the three year term of office of the Appellants as Chairmen of their various Local Government Councils has been unequivocally alluded to and even asserted by the Appellants themselves.
In ground 2 and particular (iv) of their Notice of Appeal against the ruling of the learned trial judge P. O. Ige J. delivered on the 11111 December, 2007 they stated:
‘(iv) The tenure of office of the Applicants commenced on the 25/5/2007 and will end 24/5/2010.’ (See page 334 of the record).
Again, the Appellants filed an application at the court below dated the 4th of August, 2009 for the appeal to be set down for hearing in default of the Respondents Brief. In paragraphs 6 and 7 thereof the 1st Appellant Hon. Bimbo Adepoju deposed as follows:-
‘6. That the tenure of office of the Applicants is for 3 years certain.
- Unless the appeal is disposed of quickly, the tenure of office of the Applicants/Appellants will come to an end by effluxion of time.’ (See page 499 of the record.)
Further still in paragraphs 7 and 15 of a counter-affidavit deposed to on the 15th January, 2010 by the selfsame Hon. Bimbo Adepoju at page 528 of the record he averred:
‘7 That our term began to run from 25th May 2007 and to end on 24th of May, 2010′
’15 That the Appellants term is fast running out with less than four months to go’
It is clear from the foregoing acknowledgments by the Appellants themselves that their three year terms of office as Chairmen of their various Local Government Councils ended on the 24th of May, 2010. Therefore on the 18th of June, 2010 when the motion to strike out or dismiss the appeal was filed at the Court below, the Appellants no longer had any term of office to which the reliefs claimed could be tied. This makes the essential distinction between this case on the one hand and the cases of AMAECHI Vs INEC (supra) and ADEOGUN Vs FASHOGBON (supra) on the other.
Perhaps the case which is most appropriate to the facts and circumstances of the instant case is BADEJO Vs FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (part 464) 15. Therein the Plaintiff/Appellant initiated an action which sought an order to compel the defendant to permit her to be interviewed for admission into one of the Federal Government Colleges. As at the 20th of October, 1988 when the application for the mandatory injunction was being heard the interview for the successful candidates had already been held on the 8 of October, 1988. In the premiss the application was dismissed. The dismissal was confirmed by the Court of Appeal and the Supreme Court. In its judgment, this Court per Kutigi JSC (as he then was) had this stay at pages 40 – 41 of the record:-
‘Certainly if the declaration and the orders sought by the appellant were all founded and based on the appellants eligibility to be called for interview on the 8/10/88 for admission into Secondary 1 in Federal Government Colleges in 1989, the Court of Appeal must be right when on the 8th January, 1990, some 15 months after the interviews, it was held that the subject matter of the appeal had been overtaken by events and that there was nothing left for the High Court to try and therefore struck out the suit in its entirely… It will in my view be subversive for a court of law to claim to determine disputes where none existed or had ceased to exist.’
In the instant case, the Appellants terms of office as Chairmen of their various Local Government Councils ceased to exist at the end of 24th May, 2010 and as at the 18th of June, 2010 when the application to strike out or dismiss the claim was filed there were no longer enforceable rights and obligations. In such circumstances granting all or any of the declaratory and injunctive reliefs would be an exercise in futility.
In the light of the foregoing considerations, I do not see anything wrong with the decision of the Court below. The result is that the appeal lacks merit and same is accordingly dismissed by me, I make no orders as to costs.