Action Congress (AC) & Anor V. Independent National Electoral Commission (Inec) & Anor (2007)

LawGlobal-Hub Lead Judgment Report

ABOKI, J.C.A.

In this application, the respondents/applicants are praying this court for the following order(s):

1. An order striking out the appeals filed by the appellants on the 3rd day of April, 2007 and 11th of April, 2007 respectively for lack of jurisdiction of this Honourable Court, election having taken place on the 14th of April, 2007.
2. AND for such order or further orders as this Honourable Court may deem fit to make in the circumstances.”

The application is brought pursuant to section 285(2) of the 1999 Constitution, section 18 of the Court of Appeal Act. Order 1 rule 19, Order 3 rules 2(7) Court of Appeal Rules, 2002 and the inherent powers of the court and it is supported by an eighteen (18) paragraph affidavit and an annexure marked as exhibit B. Paragraphs 4-17 of the affidavit in support of this application are pertinent and are hereby reproduced as follows:

“4. That two appeals, one final and the other interlocutory are currently pending before this Honourable Court.

5. That the first appeal arose from the decision of the trial Judge, Ogie, J. of Federal High Court, Abuja on the 28th of March, 2007 nullifying, among other reliefs, the disqualification of the 2nd plaintiff/respondent/applicant, Dr. Chris Ngige, the candidate sponsored for the Anambra State Governorship election by the 1st plaintiff/respondent/applicant by the appellants without an order of court and directing INEC and its Chairman, Prof. Iwu, to include his name in the final list of candidates and in the ballot papers for the conduct of the said election.
6. That the second appeal arose from the ruling of the trial Judge on 11th of April, 2007 correcting the accidental slip/omission that occurred in the course of the typing, drawing up and enrolment of the judgment delivered on the 28th day of March, 2007.
7. That in the two decisions now subject of the appeal before this court, the appellants refused to obey or comply or enforce any part of the decisions aforesaid.
8. That consequently, the governorship election the subject of these two appeals took place on Saturday the 14th of April, 2007 in Anambra State without the plaintiffs being included in the final list of candidates and in the ballot paper for the election as ordered by the trial court.
9. That I also aware that on Monday the 19th of April, 2007 the Supreme Court of Nigeria ruled that INEC has no power to disqualify or screen out any candidate nominated by his political party without an order of court.
10. That I verily believe the said decision of the apex court has more or less taken care of the appeals challenging the judgment of the trial court in this court.
11. That I am informed by one of the counsel for the plaintiffs/respondents/applicants, Mr. Rickey Tarfa SAN and I verify believe him that the two pre-election appeals now pending in this court have become academic having been overtaken by events.
12. That I am further informed by the said counsel and I verily believe him that the issues now following the subject matter of the two appeal can be conveniently taken up and dealt at the Election Petition Tribunal since election has now taken place.
13. That the costs of compiling and transmitting the record of appeal in these proceedings from the trial court to this court were solely borne by the plaintiffs/respondents/applicants.
14. That since the holding of the governorship elections in Anambra State on the 14th of April, 2007 without the inclusion of the plaintiffs/respondents/applicants, the appellants (the election umpire) has shown nonchalance and indifference in the compilation, transmission and prosecution of the appeals.
15. I recall that the motion for execution hurriedly filed by the umpire on the 11th of April, 2007 to avoid obeying the order of the trial court was later abandoned without the motion being moved thus resulting in the motion being struck out for lack of diligence on the 19th April, 2007.
16. That I am also aware that similar appeals lodged by INEC and pending in his Honourable Court have been withdrawn by the Commission and subsequently struck out for lack of jurisdiction to hear the said appeals. Now shown to me and marked exhibits ‘A and ‘B’ are the CTC of enrolled order and proceedings respectively in the case of INEC v. ANPP in CA/A/85/07 and Amaechi v. INEC in CA/A/70/07 made and delivered on the 10th and 16th of April, 2007 respectively.
17. That I verily believe that it will be in the interest of justice if these two appeals are struck out by the Honourable Court for lack of jurisdiction.”

In opposition to this application, the appellants/respondents deposed to a seven (7) paragraph counter-affidavit.

When this application came up for argument, learned counsel for the respondents/applicants. Emeka Ngige. SAN submitted that pursuant to the order of this court, they filed written address. He said that the appellants/defendants filed their reply on 14/5/2007 to which the respondents/applicants filed a reply on points of law on 15/5/2007. Learned counsel adopted the respondents/applicants’ written submission and emphasized on two areas of the written address.

The first is on the applicability of Amaechi’s case in which he argued that this case is different from Amaechi’s case as delivered on 8/5/2007 and 11/5/2007. He contended that what is in issue in this appeal is disqualification of a candidate and that the decision from the appeal before the Supreme Court had rendered the appeal before this court academic.

The second point he contended is on jurisdiction, which the appellants/respondents said is a pre-election matter. He argued that the motion for stay having been abandoned and later struck out, that goes to show that there is no life issue to be decided.

Learned senior counsel maintained that they have exhibited the decision of this court in a similar case, which has been referred to as exhibit B in the affidavit in support of this application.

Emeka Ngige, SAN urged the court to strike out this appeal.

He maintained that the case of Rotimi Amaechi cited by the appellants/defendants has not changed the principle in the cases which have become academic.

In a reply on behalf of appellants/respondents, their counsel Tochi Nwogu submitted that on 14/5/2007 they filed a written address to the motion to strike out the appeal. Learned counsel said they filed a seven (7) paragraph counter-affidavit and that they wish to adopt all the paragraphs of the counter-affidavit and to emphasize that at the lower court they raised so many issues on the propriety of the lower court entertaining the matter. He contended that five issues were raised in this appeal and that disqualification is only one of such issues.

Learned senior counsel urged the court to look at the grounds of appeal. He argued that they had raised issues covering pre-election matters. He contended that it has been argued by the applicants that the matter is res judicata. He argued that the appellants/defendants have a right to be heard under the Constitution of the Federal Republic of Nigeria. 1999 and urged the court not to grant the prayers of the applicants.

Paragraphs 3-6 of the counter-affidavit are impari materia to this application and they are hereby adumbrated as follows:

“3. That I am informed by Tochi Nwogu, Esq., counsel handling this matter in our office at Suite 23, Aguiyi Ironsi Shopping Complex, Asokoro on the 11th day of May, 2007 around 3pm and I verily believe him to be true and correct as to the following facts:

a) That most of the depositions contained in affidavit in support of the motion on notice of the respondents/applicants are untrue and grossly misleading.

b) That there are two notices of appeal arising out of the decisions of Hon. Justice Abimbola Ogie of the Federal High Court, Abuja delivered on the 28th of March, 2007 and 11th of April, 2007.

c) That the two notices of appeal raise 5 competent grounds of appeal and every ground of appeal is distinct from another.

d) That the 5 grounds of appeal deal on diverse issues of law as pronounced by the lower court.

e) That only ground 1 of the notice of appeal dated 30th of March, 2007 deals on the issue of disqualification of the 2nd respondent/applicant by the appellants/defendants.

f) That the other 4 grounds of the appeal deal with substantial issues of law which this Honourable Court must determine one way or the other.

g) That the other 4 grounds of appeal cannot be entertained in an election petition as the Election Tribunal does not have jurisdiction to hear them.

h) That the decision of this Honourable Court in CA/A/70/07 Rotimi Amaechi v. INEC now reported in (2007) 9 NWLR (Pt. 1040) 504 exhibited exhibit B has been overruled by the Supreme Court in the case of SC74/07 Rotimi Amaechi v. INEC now reported in (2007) 18 NWLR(Pt. 1065) 42.

i) That the Supreme Court ruled in that case that one ground of appeal can sustain an appeal.

j) That the Supreme Court in that case has also remitted the case back to the Court of Appeal to hear and determine having held that the Court of Appeal has jurisdiction to hear and entertain the appeal.

k) That the issue holding of election on the 14th April, 2007 does not affect the 4 other grounds of appeal raised in this appeal.

m) That contrary to the depositions of the respondents/applicants contained in paragraphs 13 & 14 of their affidavit in support, the appellants/defendants solely paid for the compilation of the record of this appeal and hastened the process of the compilation of the records of proceedings in this matter.

n) That the respondents/applicants have filed an Election Petition in Awka against the governorship election conducted on the 14th of April, 2007.

o) That the respondents/applicants heavily relied on the amended judgment of the Federal High Court delivered in this matter as constituting res judicata, and also the basis of bringing the petition before the Election Petition Tribunal in Awka.

4. That it is in the interest of justice to refuse and dismiss this application.
5. That this application is brought in bad faith.
6. That granting this application will irreparably prejudice the appellants/defendants herein.”

The facts leading to this application arose from an action commenced at the Federal High Court, Abuja Division by the present respondents who were the plaintiffs.

In the action, commenced by way of originating summons, the plaintiffs sought, in the amended summons, the interpretation of certain questions on the powers of INEC to disqualify a candidate whose name had been displayed or published for public objection in his constituency for election. The plaintiffs thereafter sought the following reliefs, namely:

“i. A declaration that the defendants, having duly acknowledged in writing without any query, the receipt of the 2nd plaintiff’s nomination forms as the governorship candidate of the 1st plaintiff in Anambra State for the forth coming general elections and having duly publicly displayed in all the 21 Local Government Areas in Anambra State, the 2nd plaintiff’s INEC Form CF 001 as candidate of the 1st plaintiff for any possible objection, is not authorized to disqualify the 2nd plaintiff from contesting the said election in the absence of any challenge under section 32(4) of the Electoral Act and without any order of a court, having regard to section 32(5) and section 163 of the Electoral Act, 2006.

ii. A declaration that the public notice issued and published by the defendant in the Saturday Independent Newspaper of March 3, 2007 in which it was stated inter alia that:

“Dr. Chris Ngige of Action Congress (AC) was outside the country during the verification exercise and did not submit any nomination form. He also did not depose to the requisite affidavit before a High Court in Nigeria as required by law, nor did he attend any verification exercise throughout the period as required by law, hence his name could not have appeared as a governorship candidate of the Action Congress (AC) is contrary to the provisions of section 32(1) to (5) and section 163 of the Electoral Act, 2006 and ultra vires the defendant

iii. A declaration that the 1st defendant has no power or authority under the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 to disqualify a candidate such as the 2nd plaintiff whose Electoral Nomination Forms have been duly accepted and publicly displayed on the INEC notice boards for objection by the public.

iv. AN ORDER of injunction restraining the defendants, their servants, agents, or privies whether jointly or severally from removing the 2nd plaintiff’s name from the list of candidates or from the ballot papers for the 14th April, 2007 governorship election in Anambra State as the candidate of the Action Congress Party or at any date fixed by the 1st defendant for the said elections.

v. AN ORDER directing the defendants to include the name of the 2nd plaintiff as the governorship candidate on the platform of the 1st plaintiff in Anambra State, in the Governorship Election scheduled for 14th April, 2007 or any date the said election may hold.”

The defendants, in their defence, contended that the suit was a matter triable only by an Election Petition Tribunal and not by a regular court, relying on the provisions of section 145(1)(d) of the Electoral Act, 2006 dealing with a ground for questioning an election on unlawful exclusion of a candidate duly sponsored by his political party.

It was also contended by the defendants that the Nomination Form of the 2nd plaintiff was invalid because the affidavit was deposed before a Notary Public/Commissioner for Oaths based in the United States.

In a considered judgment delivered on the 28th day of March, 2007, the learned trial Judge granted all the reliefs sought.

However, in drawing up and typing of the enrolled order of the court, instead of the amended originating summons with six reliefs, the initial Originating summons with four (4) reliefs was used.

A motion was brought before the learned trial Judge to correct this accidental slip and omission on the part of the trial court. After arguments on the issue, the error was corrected and reflected in the amended judgment dated 11th April, 2007.

The defendants aggrieved by the decision of the trial court appealed against the judgment on 3rd April, 2007 and also further appealed against the ruling of the trial court correcting the accidental slip/omission in the drawn up order and the judgment of the court.

The defendants/appellants refused to obey and comply with the mandatory orders of the trial court directing them to place the name of the 2nd plaintiff/respondent in the final list of candidates and in the ballot papers for the election that took place on the 14th day of April, 2007 in Anambra State.

The defendants/appellants filed a motion on 11th April, 2007 for stay of execution of the judgment and ruling of the court but were abandoned and never moved. The trial court had to strike out the motion for lack of diligent prosecution.

The Supreme Court of Nigeria on the 16th day of April, 2007 held in the case of Action Congress & Anor. v. Independent National Electoral Commission SC/69/07: (2007) 12 NWLR (Pt. 1048) 220 that the National Electoral Commission had no power under the Electoral Act or in the 1999 Constitution to screen and disqualify any candidate presented for election by the political party without the order of court.

It is against this background that the plaintiffs who are now the respondents/appellants in this court said they brought this application to strike out the appeals on the grounds that the decision of the Supreme Court has rendered the appeal before this court academic and otiose and that this court lacks jurisdiction to entertain it.

The plaintiffs/respondents/applicants formulated two issues for determination in this application as follows:

“1. Whether the Court of Appeal has the jurisdiction to continue with the hearing of the two pending appeals relating to or connected with pre-election matters after the holding of the Election and the constitution of Election Petition Tribunals to deal with such matters.

2. Whether the two appeals pending before this court have not become otiose and academic having regard to the Supreme Court’s decision in SC.69/2007- Action Congress & Anor v. INEC delivered on the 16th day of April, 2007; (2007) 12 NWLR (Pt. 1048) 220.”

The defendants/appellants/respondents formulated three issues for determination in this application and they read thus:

1. Whether the two notices of appeal pending before this court have become academic having regard to the Supreme Court decision in SC.69/2007 – Action Congress & Anor. v. INEC and if not whether the remaining 4 grounds of appeal can sustain this appeal.
2. Whether this Honourable Court still has the jurisdiction to continue with the hearing of the two pending appeals relating to or connected with pre-election matters after the holding of the election.
3. Whether the constitutional right of the appellants/respondents to appeal against the judgment of the Federal High Court, to which the respondents/applicants are relying as res judicata in an election petition, will not be infringed if the Court of Appeal decline jurisdiction to entertain this matter.”

It has been argued on behalf of the appellants/respondents that the two notices of appeal they filed have five (5) substantial and competent grounds of appeal before this court for determination and that only ground one (1) of the notice of appeal dated the 30th March, 2007 deals on the disqualification of the 2nd respondents/applicants by the appellants/defendants.

That four (4) other grounds of appeal raise substantial diverse issues of law pronounced by the learned trial Judge which this court is called upon to determine.

The respondents/applicants are said to have also filed petition at the Election Tribunal in Awka, Anambra State wherein they relied heavily on the judgment of the Federal High Court as res judicata on the issues. The appellants/respondents said that all the issues raised in the two notices of grounds of appeal to which the respondents/applicants have filed this motion to strike out are all live issues.

An examination of the issues presented by both parties for the determination of this application apparently revealed that they are identical in con. I will adopt the issues formulated by the applicants. I am permitted by law to do so. See: Onwo v. Oko (1996) 6 NWLR (Pt. 456) page 584; Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) page 146; Dung v. Gyang (1994) 8 NWLR (Pt. 362) page 315; Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) page 582; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) page 139 at 154.

On the first issue for determination – Whether the Court of Appeal has the jurisdiction to continue with the hearing of the two pending appeals relating to or connected with pre-election matters after the holding of the election and the Constitution of Election Petition Tribunals to deal with such matters.

Learned counsel for the applicants, U. N. Udechukwu, SAN referred to Order 3 rule 2(7) of the court of Appeal Rules, 2002 under which this application was brought and submitted that based on the reason of lack of jurisdiction, the two appeals are liable to be struck out. He cited in support the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587: (1962) 2 SCNLR 341.

Learned counsel maintained that it is not in dispute that the matter adjudicated upon by the trial court and which now forms the subject of the two appeals before this court are pre-election matters. He contended that a cursory look at the first notice of appeal filed on the 13th of April. 2007, shows that the entire thrust of the appeal is on applicability of section 32 of the Electoral Act. 2006 particularly on the validity of a nomination of a candidate presented to INEC by his political party for election.

He argued that the appeal also deals with the issue of whether disqualification or exclusion of a candidate is a matter that can be raised by a candidate at a Federal High Court or at an Election Petition Tribunal after election pursuant to section 145(1)(d) of the Electoral Act, 2006. The second appeal, which is ancillary to the first, deals with the propriety of the order of the trial court, correcting an accidental slip or omission in its drawn up order or judgment.

Learned counsel for the applicants submitted that these are matters which this court can no longer adjudicate upon since election was held on 14th day of April, 2007 and Election Tribunals constituted to hear election disputes. He submitted that this is a sufficient reason to strike out the appeal. He cited the provisions of section 285(2) of the 1999 Constitution. He contended that the said provisions of the Constitution ousts or excludes the jurisdiction of any other court or tribunal to hear and determine election to the office of Governor and Deputy Governor respectively. He contended that section 285(2) of the 1999 Constitution is also supported by the provisions of section 140 of the Electoral Act, 2006.

He argued that with the holding of the election on the 14th day of April, 2007, the declaration of a Governor-elect in Anambra State and the setting up of an Election Tribunal by the President of the Court of Appeal, the battle is now shifted to Election Tribunal for continuation of hostilities.

Learned counsel opined that the only wrong in the case is that the hostilities is not between two opposing candidates but between the supposed umpire in an election on one side and a political party and its candidate on the other side.

Learned counsel for the respondents/applicants referred the court to exhibit A attached to the affidavit in support of the application in which the appellants/respondents in a similar matter before the same learned trial Judge on the same subject matter of disqualification of a candidate promptly withdrew its appeal and same was struck out pursuant to section 285(1) of the 1999 Constitution. It is in the case of INEC v. ANPP & Anor. CA/A/85/07 struck out on the 10th day of April, 2007.

Learned counsel contended that the lead counsel in the appeal, J. K Gadzama. SAN is the same lead counsel in the present appeal.

He argued that nothing has changed to warrant INEC’s insistence to go on with the appeal.

The court was again referred to the case of Amaechi v. INEC CA/A/70/07 of 16th April, 2007: (2007) 12 NWLR (Pt. 1040) 504 where in a similar matter in which Mr. R. O. Yusuf from J. K. Gadzama’s chambers appeared for INEC, this court declined jurisdiction on the matter. He urged this court to take a similar stand.

Learned counsel said he is not oblivious of the decision of the Supreme Court in the matter which overruled the decision of this court declining jurisdiction. Learned counsel tried to distinguish the case of Amaechi v. INEC (supra) from this case. He argued that in the instant case, the issue is whether the Court of Appeal can continue to hear an appeal on a matter that can now be adjudicated upon by an Election Tribunal after holding of the election and a Governor-elect declared, whereas in the Amaechi’s case, the issue therein is an intra-party contest on substitution of candidates before election and the propriety of the expulsion of a party in the appeal leading to his locus standi to prosecute the appeal.

Learned counsel for the applicant urged the court to be guided by these distinguishing features and on the principle established on the lack of jurisdiction of the Court of Appeal to hear such appeal. The principle, he submitted, remain a good law. He urged that the issue be resolved in favour of the respondents/applicants.

In their response on the first issue for determination in this application, learned counsel for the appellants/respondents submitted that the case CA/A/70/07 Amaechi v. INEC (2007) 9 NWLR (Pt.1040) 504 cited by the counsel to the respondents/applicants and annexed to the respondents/applicants’ motion on notice to strike out, as exhibit B has been overruled by the Supreme Court on the 18th day of May, 2007. The Supreme Court held in SC/74/07 Amaechi v. INEC (2007) 18 NWLR (Pt.1065) 42 that it has jurisdiction to entertain the matter and that one competent ground of appeal can sustain an appeal. In its ruling on 11th May, 2007, the Supreme Court remitted the case back to the Court of Appeal to determine the substantive issue because it was wrong when it struck out the matter.

Learned counsel for the appellants/respondents contended that the attempt to distinguish this case by the respondents/applicants shows acts of desperation aimed to deliberately mislead the court.

He argued that it also shows the height of inconsistency of the respondents/ applicants.

Tochi Nwogu. Esq., learned counsel for the appellants/respondents, submitted that Order 3 rule 2(7) of the Court of Appeal Rules, 2002 cited by the counsel to the respondents/applicants has no relevance to this case. Also the provisions of section 285(2) of the 1999 Constitution and section 140 of the Electoral Act, 2006 cited have no relevance to the appeal and do not apply herein.

He further submitted that none of the grounds of appeal of the appellants/respondents (especially the other 4 grounds) can be entertained by the Election Tribunal and accordingly it is only the regular court not the Election Tribunal that can entertain the suit.

Learned counsel argued that it is not for the respondents/applicants to dictate for the appellants/respondents which way to handle its appeal, either to continue with the appeal or withdraw it. He maintained that J. K. Gadzama SAN informed the court orally on the 8th day of May 2007 that neither he nor his chambers is involved in the prosecution of this matter that Chief Anthony Idigbe SAN has the instructions of the appellants/respondents to proceed with this appeal. He maintained that the arguments of the learned counsel to the respondents/applicants contained in paragraph 3.09 of their submission goes to no issue.

He urged the court to hold that on the authority of the case of Amaechi v. INEC SC/74/07 now reported in (2007) 18 NWLR (Pt.1065) 42, this Court has jurisdiction to entertain and determine this appeal.

In response on point of law, learned counsel to the respondents/applicants submitted on the issue that one valid ground of appeal is enough to sustain an appeal, that once an appeal has become academic, it is immaterial that any of the grounds of appeal is valid or may be valid. He argued that the issue of validity of a ground of appeal only arises where there is a challenge to the validity of the appeal or an attack on the grounds of appeal.

He submitted that the arguments of the appellants/respondents are misconceived as the validity of one ground of appeal or more can not give life to an appeal that has become academic. He contended that the matter has been laid to rest in the case of Action Congress & Anor. v. INEC SC/69/07: (2007) 12 NWLR (Pt. 1048) 222. He submitted that the authorities of Sossa v. Fokpo (2001) 1 NWLR (Pt. 693) page 16 and Kupoluyi v. Philips (2001) 13 NWLR (Pt. 731) page 736 are totally irrelevant and therefore inapplicable.

Learned counsel submitted that the holding of the Supreme Court in Amaechi v. INEC SC/74/07, (2007) 18 NWLR (Pt. 1065) 42 that “one competent ground of appeal can sustain an appeal” cited by the appellants still does not meet the issue raised by the objection.

When a court has no jurisdiction to entertain a matter, the court cannot for any reason, even if in the interest of justice assume jurisdiction. See: Sossa v. Fokpo (2001) 1 NWLR (Pt. 693) page 16 at 29; Ajayi v. Military Administrator, Ondo State (1997) 5 NWLR (Pt. 504) page 237.

Any defect in competence of court is fatal, for the proceedings are a nullity however well conducted and decided. The defect is intrinsic to the adjudication.

In Madukolu & others v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNLR 341 at 587-590, the Federal Supreme Court held on jurisdiction and the competence of a court thus:

“Put briefly, a court is competent when –

a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and

b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

c) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Italics mine).

These three conditions stated above must co-exist before the court can be vested or clothed with proper competence and jurisdiction. See The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishala v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506: Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.

The jurisdiction of the court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the court has jurisdiction.

These would be relied on if the facts placed before the court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue. This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the courts. See: A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) page 1; Akande & 2 Ors. v. Busari Alagbe & Anor, (2001) FWLR (Pt. 38) page 1352, (2000) 15 NWLR (Pt.690) 353; A.-G., Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32) page 93, (1999) 9 NWLR (Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’s Araz & Anor. (2000) FWLR (Pt 34) page 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) page 626, (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) page 557, (2000) 6 NWLR (Pt. 660) 228; Okulate & 4 Ors. v. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) page 530-6.

In determining the issue at hand, it will be pertinent to state what the complaint giving rise to this application is all about.

Paragraphs 4,5,6,7, and 8 of the affidavit in support of the application gives a clue and for purposes of emphasis they are reproduced as follows:

“4. That two appeals, one final and the other interlocutory are currently pending before this Honourable Court.

5. That the first appeal arose from the decision of the trial Judge, Ogie, J. of Federal High Court, Abuja on the 20th of March, 2007 nullifying, among other reliefs, the disqualification of the 2nd plaintiff/respondent/applicant, Dr. Chris Ngige, the candidate sponsored for the Anambra State Governorship election by the 1st plaintiff/respondent/applicant by the appellants without an order of court and directing INEC and its Chairman, Prof. Iwu, to include his name in the final list of candidates and in the ballot papers for the conduct of the said election.

The second appeal arose from the ruling of the trial Judge on the 11th of April. 2007 correcting the accidental slip/omission that occurred in the course of the typing, drawing up and enrolment of the judgment delivered on the 28th day of March, 2007.

That in the two decisions now subject of the appeal before this court, the appellants refused to obey or comply or enforce any part of the decisions aforesaid.

That consequently, the governorship election the subject of these two appeals took place on Saturday the 14th of April, 2007 in Anambra State without the plaintiffs being included in the final list of candidates and in the ballot paper for the election as ordered by the trial court.

The issues of disqualification, nomination, substitution and sponsorship of candidates for an election precede elections and are therefore pre-election matters.

In Rt. Hon. Rotimi Amaechi v. Independent National Electoral Commission & 2 Ors. Sc. 74/2007 delivered on the 16th day of May, 2007 (unreported), now reported in (2007) 18 NWLR (Pt. 1065) 42 a pre-election matter before the Supreme Court in which this court had earlier declined jurisdiction because it was a pre-election matter: the Supreme Court per Katsina-Alu, JSC said:-

“Having heard all the arguments of learned counsel on all sides, I hold that the Court of Appeal was in error in declining jurisdiction to hear the appeal and the cross-appeal on the merit. It is now ordered that the matter be remitted to the Court of Appeal, Abuja to hear the two appeals expeditiously”

It follows from this decision of the Supreme Court that all pre-election matters are to be heard on the merit and expeditiously too.

On whether INEC has power to disqualify a candidate nominated and sponsored by a political party to an election without a court order.

The Supreme Court held in the case of Action Congress v. INEC SC/69/07 delivered on the 16th day of April, 2007 (unreported) (now reported in (2007) 12 NWLR (Pt. 1048) 220) Per Katsina-Alu, JSC:”

Having gone through the record of proceedings and the grounds of appeal, and having listened to the arguments of counsel oral and written. I agree with the leading senior counsel for the respondent that the only relevant and crucial issue for determination in this appeal is whether or not the Court of Appeal was light in holding that the respondent has the power to disqualify a candidate in an election under the 1999 Constitution and/or Electoral Act, 2006. I have no difficulty after considering all the arguments and the relevant provisions in coming to the conclusion that the Court of Appeal was in error in holding that the respondent has the power to screen and disqualify any candidate including the 2nd appellant. I therefore allow the appeal and set aside the decision of the Court of Appeal.”

The above decision of the Supreme Court has put a final seal on the controversy as to whether the Independent National Electoral Commission (INEC) has power to disqualify, to remove or screen out any candidate presented for election by his political party.

I am of the opinion that under a normal situation this court would have assumed jurisdiction to continue with the hearing of the two pending appeals relating to or connected with pre-election matter after the holding of the election but there have been changed circumstances since after this appeal was entered for hearing as a result of judicial pronouncements by the apex court.

The changed situation will be made clearer from the discussion on the second issue which is whether the two pending appeals have become otiose and academic having regards to the Supreme Court’s decision in SC.69/07 Action Congress & Anor. v. INEC delivered on the 16th day of April, 2007; (2007) 12 NWLR (Pt. 1048) 220, it has been submitted that since election had taken place on the 14th day of April, 2007 and the Governor-elect declared, this appeal by the appellants/respondents has become an academic exercise.

The question to ask is when does adjudication become an academic exercise?

The Apex Court and indeed this court have in a plethora of decisions given an insight into what constitutes an academic exercise. In the case of Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt. 504) page 281, this court Per Uwaifo, JCA (as he then was) made the point that:

“If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the court will not entertain it … the law is that it is an essential quality of a suit or an appeal fit to be disposed of by a court that there should exist between the parties a matter in actual controversy which the court undertakes to decide as a living issue. Moreover, a court deals only with live issues and steers clear of those that are academic. But there cannot be said to be a live issue in a litigation if what is presented to the court for a decision, when decided, cannot affect the parties in anyway.”

In the same case at page 288, Musdapher, JCA (as he then was) also said thus:

“It is trite law that an academic, hypothetical or moot point does not deserve any judicial pronouncement. To attract judicial decision, there must be in existence a live issue or controversy between the litigants. Where there is no contest or where the result of a judicial decision will serve no purpose, it cannot be said that there exists lis within the section 6(6)(b) of the Constitution.”

In A.-G., Federation v. ANPP (2003) 12 SC (Pt. 11) page 146 at 170; (2003) 18 NWLR (Pt. 851) 182 at 215, Uwaifo, JSC opined that:

“There cannot be said to be a live issue in a 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 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. And 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.”

Also in Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) page 478 at page 500, Onnoghen, JSC said:

“It must always be borne in mind that the court is not interested in determining academic questions, a favourable resolution of which would have no adverse effect on the decision of the lower court.”

It is very clear from the authorities cited above that it is an essential quality of a suit or an appeal fit to be disposed of by a court, that there should exist between the parties a matter in actual controversy which the court undertakes to decide as a living issue, but where there is no contest or where the result of a judicial decision will serve no purpose, then such judicial decision is a mere academic exercise.

Courts are enjoined to steer clear of those issues that are academic and deal only with live issues. In A.-G., Federation v. ANPP (supra) at page 169, Uwaifo, JSC held:

“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 issue. This is 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 the best quality only as an advisory opinion. This court, and indeed any court in Nigeria will not engage in rendering such a judgment. See Akeredolu v. Akinremi (No.2) (1986) 2 NWLR (Pt. 25) page 710 at 725; Atake v. Afejuku (1994) 9 NWLR (Pt. 368) page 379 at 402; Tanimola v. Surveys and Mapping Geodata Ltd. (1995) 6 NWLR (Pt. 403) page 617 at 626-627.”

There cannot be said to be a live issue in an appeal if the issues formulated for determination when decided cannot affect the parties in any way or would have no adverse effect on the decision of the lower court.

In the present case, the election which is the subject of controversy had been conducted in Anambra State by INEC on the 14th day of April, 2007 without including the name of the respondents/applicants in the final list of candidates and in the ballot paper as ordered by the trial court, the results had been declared and the Governor-elect had subscribed to the oath of office of the Governor of Anambra State of Nigeria, Thus, the appeal has become an academic exercise and same cannot serve any useful purpose.

The twist in this appeal is that the Supreme Court in a unanimous decision declared that the office of the Governor of Anambra State is not vacant and that the Independent National Electoral Commission (INEC) was wrong to have conducted the election when the tenure of the incumbent Governor extends beyond 29th May, 2007 in the case of Mr. Peter Obi (Governor of Anambra State) v. INEC & 7 ors. SC.123/2007 delivered on 14th of June, 2007; reported in (2007) 11 NWLR (Pt. 1046) 436) per Katsina-Alu, J.S.C. stated thus:

‘There being no dispute on the fact that the plaintiff/appellant took his oath of allegiance and oath of office on 17th March, 2006 his term of office will expire on 17th March, 2010.

I now consider the order to make. The plaintiff/appellant had in his claim before the High Court sought both declaratory and injunctive reliefs directed at protecting his four year term of office. In its effect, the claim is another way that his term of office extends beyond May 29, 2007. However, the 1st respondent inspite of its awareness that the case was still pending in court went on to conduct the purported election. The court and indeed any court ought not to permit its processes to be treated with disdain. I therefore have a duty to ensure that plaintiff/appellant’s appeal is not rendered nugatory. I therefore make the following declarations and order-

1. That the office of Governor of Anambra State was not vacant as at 29th May, 2007.
2. It is ordered that the 5th respondent, Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant, Mr. Peter Obi to exhaust his term of office.”

The above judgment of the Supreme Court has put the wind off the sail of the main appeal and the ancillary appeal lodged by INEC before this court.

There is no more live issue to be decided between the parties.

The subject matter of the dispute being the election into the office of the Governor of Anambra State, the Supreme Court having declared the office not vacant and that INEC ought not to have conducted the Governorship election in Anambra State.

It follows therefore that all issues in the main and the ancillary appeals having ceased to be live issues, any consideration of them will amount to mere academic expression of opinion and a moot debate which activities courts are enjoined to steer clear and are precluded from engaging in. It will be an exercise in futility, a waste of the precious judicial time, energy and resources to proceed with the hearing of the appeals. The appeals are incompetent.

In conclusion, there is merit in this application brought by the respondents/applicants and the relief sought is granted accordingly. Consequently, the two appeals being incompetent are pursuant to Order 3 rule 2(7) of the Court of Appeal Rules, 2002 struck out.

There will be no order as to costs.

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Other Citations: (2007)LCN/2443(CA)