Honourable Gozie Agbakoba V. Independent National Electoral Commission (INEC) & Ors (2007)
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JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the Federal High Court, Enugu, delivered on the 5th day of April 2007 in Suit No:FHC/EN/CS/56/2007: Honourable Gozie Agbakoba V. Independent National Electoral Commission (INEC) & 2 Others.
By an Amended Originating Summons the Plaintiff now Appellant claimed against the Defendants now Respondents as follows:-
“(1) A Declaration that the 1st Defendant’s statutory power to substitute a nominated candidate of a political party under Section 34 of the Electoral Act 2006, is qualified and not absolute.
(2) A declaration that the 1st Defendant has no power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.
(3) A declaration that the 1st Defendant cannot substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
(4) A declaration that in view of Section 36 of the 1999 Constitution the 1st Defendant cannot fairly and constitutionally determine the cogency and verifiability of substitution of a nominated candidate without some notice to the candidate or hearing from or input by the affected candidate.
(5) A declaration that the legislative innovation introduced by Section 34 of the Electoral Act is aimed at deepening and strengthening Nigeria’s democracy in relation to substitution of a nominated candidate in an election.
(6) A declaration that the substitution of Plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples Democratic Party PDP for election into the House of Representatives in respect of Onitsha North and South Federal Constituency of Anambra State in the manner it did is ultra vires, undemocratic, arbitrary, unlawful, illegal, unconstitutional, null and void.
(7) An order setting aside the purported substitution, same being in excess of the statutory powers of the 1st Defendant, in abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.
(8) An order of perpetual injunction directing the 1st Defendant to restore the Plaintiff as the duly nominated, verified, cleared and published candidate for the Peoples Democratic Party for election into the House of Representatives in respect of Onitsha North and South Federal Constituency of Anambra State.”
In a considered Judgment, the learned trial Judge found that the Plaintiff/Appellant’s action lacks merit and it was dismissed.
Dissatisfied with the Judgment of the lower court, the appellants now appealed to this Court.
The appellant formulated three issues for determination as follows:-
(1) Whether the 1st Respondent, the Independent National Electoral Commission INEC discharged the burden of proof cast on it by the appellant’s case in the court below so as to justify the finding of the lower court dismissing the appellant’s suit.
(2) In any event, whether the substitution of the appellant in the manner complained of in the suit before the lower court was carried out in compliance with Section 34 of the Electoral Act 2006 as held by the lower court.
(3) Whether the lower court was right to hold that it is the 2nd Respondent political party that should be heard by the 1st Respondent (and not the Appellant substituted candidate) in determining the cogency and verifiability of the reason adduced by the 2nd Respondent political party for substitution of the Appellant as candidate.”
The 1st Respondent on the other hand formulated four issues for determination as follows:-
“(1) Whether the substitution of the appellant’s name by the 2nd respondent was done in accordance with the law.
(2) Whether there is a mandatory statutory duty on the 1st Respondent to verify the reason given by a political party applying to change a candidate.
(3) Whether the learned trial judge properly evaluated the evidence before the court.
(4) Whether the 1st, 2nd, & 3rd respondents have common interest in the appellant’s case in the court below so as to justify the finding of the lower court dismissing the appellant’s suit.”
The 2nd & 3rd respondents also formulated three issues for determination as follows:-
“(1) Whether the learned trial judge was right when he held that the substitution of the Appellant’s name complied with Section 34 of the Electoral Act 2006.
(2) Whether the learned trial judge was right when he held that it is the political party which applies for substitution that should he heard by INEC on issue of the presence of cogent and verifiable reasons for the substitution.
(3) Whether based on the documentary evidence before the court, it was not established that the 1st Respondent in the substitution exercise acted within its powers under Section 34 of the Electoral Act, 2006.”
On the 15th day of May 2007 when this appeal came up for hearing, this Court raised the issue whether this appeal has not become academic in view of the election into the House of Representatives held on 21st day of April 2007.
The parties were therefore ordered to file written addresses on the issue, and the appeal was further adjourned till 24th day of May 2007 for hearing.
At the hearing, Learned Counsel for the parties adopted and relied on their respective briefs of argument and written addresses.
The first issue to be considered in this appeal is whether this appeal is not now an academic exercise in view of the fact that elections have come and gone and having regard to the relief sought in the amended Originating Summons, particularly relief 8.
The learned Senior Counsel for the appellant in his submission stated that an appeal is academic when there is no live issue or controversy for determination before the Court of Appeal. He referred to – Ogbonna & 50 others Vs. President (1997) 5 NWLR Part 504 at page 281.
He argued “that this appeal is a pre-election dispute between the appellant and 1st Respondent, and that they are normally fought in the regular courts. He went further that under Section 251 (1)(q)(r) of the 1999 Constitution, the Federal High Court has exclusive original jurisdiction to decide the validity of the executive and administrative acts of the 1st Respondent.
He also stated that post-election disputes which should normally, be actions or petitions questioning the election or return thereof are guided by Electoral Act and are fought at the Election Tribunal. He referred to Section 145(1) of the Electoral Act 2006.
He submitted that the present appeal is not academic because it neither questions the election conducted on 21st April 2007 nor the returns; rather it questions the validity of the substitution of the Appellant by the 1st Respondent. Therefore that the reliefs sought by the appellant have not been overtaken by events. He referred to the case of Rotimi Amaechi Vs. Inec & 2 others (CA/A/70/2007).
He also submitted that the appellant has no remedy at the Election Tribunal. He referred to the following cases:-
– Sanyaolu V. INEC (1999) 7 NWLR Part 612 Page 600 at 608G-H.
– Ibrahim V. INEC (1999) 8 NWLR Part 614 Page 334 at 351A-B.
– Adebiyi V. Babalola (1993)1 NWLR Part 267 Page 1 at Page 13A.
He finally urged this Court to hold that the appeal is not academic.
The learned counsel for the 1st respondent and the Learned Senior Counsel for the 2nd and 3rd respondents stated that the dispute which gave rise to the instant appeal is one of pre-election matter arising from the substitution of the name of the appellant with that of the 3rd respondent. Thus the whole dispute relates to the issue of who was to be sponsored by the 2nd respondent for the April 2007 elections as its candidate for Onitsha North and South Federal Constituency of Anambra State.
They submitted that the election into the Federal House of Representatives having been conducted nationwide (Onitsha North and South Constituency inclusive) on April 21 2007 is the res in the instant appeal and the res can be said to have perished since the election has been concluded, results have been declared and Election Petition Tribunals have been set up to adjudicate over all disputes arising from the said April 2007 general elections.
It was also submitted on behalf of the 1st, 2nd and 3rd respondents that as far as the dispute is concerned since the elections have been concluded, there are no more live issues to be determined by this Court. And where there are no live issues to be determined, the court will treat such issues or questions as academic or hypothetical questions. Reliance was placed on the following cases:
– A.G. Anambra State Vs. A.G. Federation (2005) 9 NWLR Part 931 at Page 572 at 588.
– Olale V. Ekwelendu (1989) 4 NWLR Part 115 Page 326 ratio 16 at 332.
– Olaniyi V. Aroyehun (1991) 5 NWLR Part 194 Page 652 ratio 8 at Page 657
– Mamman V. Salaudeen (2005) 18 NWLR Part 958 at Page 478 at 500.
The Learned Counsel for the 1st Respondent and Learned Senior Counsel for 2nd and 3rd Respondents finally urged that the appeal be struck out.
A perusal of the Amended Originating Summons and the affidavit in support by the Appellant showed that what was sought from the High Court – essentially was for the court to direct the 1st Respondent (INEC) to restore the Appellant as the duly nominated, verified, cleared and published candidate for the Peoples Democratic Party for election into the Onitsha North and South Federal Constituency of Anambra State.
In my humble view by a combined effect of Section 285 (1)(a) of the 1999 Constitution and Sections 69(c), 140(1) and 145(1 )(a) to (d) of the Electoral Act 2006, this cause of action has inured to the election tribunal.
Section 285(1)(a) of the 1999 Constitution provides thus:-
“285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) any person has been validly elected as a member of the National Assembly.
By virtue of the foregoing the tribunal has been vested with exclusive jurisdiction over the determination as to whether a person has been validly elected in the circumstances of this case. Although when the matter originated, the regular courts had jurisdiction, however when the election took place and the 3rd Respondent was declared a winner, a different situation materialized. That situation is captured by Section 69(c) of the Electoral Act 2006 which provides thus:-
“69 – The decision of the Returning Officer on any question arising from or relating to:
(a) …
(b) …
(c) Declaration of scores of candidates and the return of a candidate, shall be final subject to review by a tribunal or court in an election petition proceedings under this Act.”
The essence of the Appellant’s case is to be recognized as the candidate of the PDP. He admitted by his claim that he was not a candidate, having been substituted, for which he filed the action. The declaration made by the returning officer in favour of the 3rd Respondent as the duly elected PDP candidate is contrary to the interest of the appellant. A favourable order for the appellant therefore will mean an indirect attack on the declaration of result made by the returning officer pursuant to Section 69(c) of the Electoral Act 2006.
The Electoral Act 2006 stipulated that the declaration made by the returning officer shall be final subject to review by a tribunal or a court in an election petition. By granting the reliefs in this amended Originating Summons particularly relief 8, this Court will be reviewing that declaration made by the returning officer to the effect that the 3rd respondent was the PDP candidate who won the Election.
Consequently, this Court is not vested with the jurisdiction to set aside in any way the declaration made by an Electoral Officer in the absence of an election petition.
The case of Rotimi Amaechi V. INEC & 2 others CA/A/70/2007 relied upon by the appellant is not on all fours with this case and it is therefore not relevant.
Furthermore, I also agree with the submissions of Learned Counsel for the 1st Respondent and Learned Senior Counsel for the 2nd and 3rd Respondents that since the elections have been conducted and concluded there are no more live issues to be determined by this Court as far as the reliefs being claimed by the appellant is concerned. And where there are no live issues to be determined, the court will treat such issues or questions as academic or hypothetical questions.
It is trite that a court cannot and should not engage in academic exercise, it is not the function or indeed the duty of the court to embark on advisory opinion or abstract or on speculation. The court has no jurisdiction to do that. The courts are established to determine live issues, See the following cases:
– A.G. Anambra State Vs. A.G. Federation (supra).
– Olale Vs. Ekwelendu (supra).
– Olaniyi Vs. Aroyehun (supra).
– Mamma Vs. Saluadeen (supra).
In view of the foregoing, I arrived at the inevitable conclusion that this appeal is academic and it is accordingly struck out.
In view of the circumstances surrounding the case, I will not make any order as to costs.
Other Citations: (2007)LCN/2446(CA)
