Pdp & Anor V. Jarigbe & Anor (2021)
LAWGLOBAL HUB Lead Judgment Report
TIJJANI ABUBAKAR, J.S.C.
This appeal stems from the decision of the Court of Appeal Port Harcourt Division, delivered on the 2nd day of November, 2020 affirming the decision of the trial Federal High Court sitting in Port Harcourt delivered on the 4th day of September, 2020. The facts giving rise to the appeal are that, the elected Senator representing Cross River State North Senatorial District died in office, the event of his death therefore created vacancy in the Senate. The second respondent, Independent National Electoral Commission issued out a notice on the 11th day of August, 2020 that bye-elections would be conducted to fill the existing vacancy, the bye-election was slated for 31st October, 2020. The 1st appellant accordingly requested the 2nd respondent to monitor the primary elections.
Before the primary elections were conducted, the 1st respondent in this appeal apparently perceived threat to his prospects of participating in the bye-election, he therefore through counsel commenced an action at the Federal High Court by originating summons on the 24th day of August, 2020, and submitted three questions for determination by the trial Court, the questions are:
- Whether upon proper construction and interpretation of the provisions of Sections 85(1) and 87 (c)(i) and 87 of the Electoral Act, 2010 (as amended), the defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area executives of the 1st defendant who emerged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
- Whether by the provisions of Article 15(2) and 18 of the 1st defendant’s Constitution, the 1st defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
- Whether by the provision of Section 87 of the Electoral Act, 2010 (as amended) and Article 59(2)(c) of the 1st defendant’s Constitution, the 1st defendant can conduct the primaries for its senatorial candidate in any other place or venue different from the senatorial Constituency Headquarters as prescribed by its Constitution.
Upon the determination of the questions set out herein, the 1st respondent then sought for the following reliefs:
a. A declaration that the 1st defendant is bound to utilize the list of the party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March 2020, same having been authenticated by the 1st defendant and certified by the 3rd defendant, for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.
b. An Order of this honourable Court restraining the 1st and 2nd defendants either by themselves or acting through their organs, agents, privies from carrying out any change, modification, exclusion, substitution or however, described by them to the list of party members who engaged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 same having been authenticated by the 1st defendant and certified by the 1st defendant for the senatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.
c. An order of this honourable Court restraining the 3rd defendant from giving effect to any purported change; modification; exclusion, substitution, or howsoever described by the 1st defendant to the list of party members who emerged as ward and Local Government Areas executives of the 1st defendant on the 7th and 21st March 2020 same having been authenticated by the 1st defendant and certified by the 3rd defendant for the purpose of selecting the senatorial candidate of the 1st defendant for cenatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.
d. An order of this honourable Court directing the 1st defendant to conduct the primary elections for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial bye in Cross River North Senatorial District for 5th September 2020 or any other date, at the senatorial Headquarters in Ogoja in accordance with the provisions of the 1st defendants Constitution.
e. And for such other order this honourable Court may deem fit to make in the circumstance of this case.
The case of the 1st respondent at the trial Court was that a faction of the 1st appellant, led by the 2nd appellant circulated unapproved list of delegates elected on the 7th and 21st March, 2020 for the purpose of conducting the primary elections fixed for 5th September, 2020. At the conclusion of hearing, the trial Federal High Court found in favour of the 1st respondent, and ordered that his name be restored on the list. He was eventually restored on the list by the 1st appellant in compliance with the order of the trial Court. The appellants became nettled by this decision and made for the Court of Appeal.
The appellants therefore filed an appeal at the Court of Appeal. The Court of Appeal Port Harcourt Division affirmed the decision of the trial Federal High Court. Appellants therefore finally appealed to this Court on the 4th day of November, 2020, the initial notice of appeal containing four grounds is at pages 2897- 2859 of the records of appeal Vol. IV. The appellants filed another notice of appeal on the 9th day of November, 2020 containing ten grounds of appeal. Learned senior counsel Chief Olanipekun, SAN filed brief of argument on behalf of the appellants on the 13th day of November, 2020 and nominated the following three issues for determination:
i. Was the lower Court correct when it affirmed the decision of the trial Court in relation to the 1st respondent’s disqualification by the 1st appellant’s Screening Committee. (Grounds 4, 9 and 10)
ii. Did the claim of the 1st respondent vide the originating summons filed on 24/8/2020 (leading to the judgment of the trial Court and affirmed by the lower Court) vest jurisdiction on the Court(s). (Grounds 1, 3, 5, 6, 7 and 8)
iii. Whether the claim of the 1st respondent herein in the originating summons filed on the 24/08/2020 was/is statute barred, considering the date of the filing of the claim vis-à-vis exhibit JA-J10. (Ground 2)
Learned senior counsel for the appellants also filed replies to both the 1st and 2nd respondents on the 26th day of November, 2020 wherein counsel reacted to the 1st respondent’s preliminary objection.
The 1st respondent through learned senior counsel Adedipe, SAN filed the 1st respondent’s brief of argument on the 29thday of November 2020. In the brief of argument, counsel raised preliminary objection. The objection is premised on two major grounds, dealing with failure to obtain leave of Court before filing the appeal, and the appellants’ appeal being academic. At the hearing of this appeal, the learned counsel for the 1st respondent withdrew the first part of the objection dealing with the issue of leave, and concentrated on the second part of the objection contending that appellants appeal is academic.
In the brief of argument filed by learned senior counsel for the 1st respondent, counsel adopted the issues for determination crafted by the appellants.
The second respondent through learned counsel, Abdulaziz Sani filed brief of argument on 24/11/2020, and nominated the following three issues for determination:
a. Whether the lower Court was right in upholding the decision of the trial Court that the case leading to the instant appeal was not statute barred (Culled from grounds 1, 2, and 3 of the notice of appeal).
b. Whether the lower Court was right when it held that the trial Court correctly assumed jurisdiction and granted the reliefs sought by the1st respondent as per the 1st respondents originating summons. (Culled from grounds 4, 5, and 6 of the notice of appeal).
c. Whether the lower Court was right when it held that the 1st respondent had the requisite locus standi and acted timeously in instituting action against a perceived infraction of his right. (Culled from grounds 7 and 8 of the notice of appeal).
I must at this stage mention that, at the hearing of this appeal, the appellants through counsel sought to strike out 1st and 2nd respondents’ briefs of argument. Learned senior counsel for the appellants, filed a motion on notice on the 26th day of November 2020 pursuant to paragraph 6 of the Supreme Court Election Appeal Practice Direction, 2011 and under the inherent jurisdiction of this Court praying for:
- An order striking out the 1st respondent’s brief dated and filed on 20th November, 2020.
- An Order striking out the 2nd respondent’s brief dated 20th November, 2020 but filed on the 24th November, 2020.
In brief, the grounds for the application are that the briefs of the respondents were filed outside the time limited by the Practice Direction beingpre-election qua election related appeal, the proceedings do not accommodate the filing of processes out of time and do not admit of application for extension of time to do so. Appellants filed 6 paragraphs affidavit in support and written address.
The first respondent filed counter affidavit and deposed at paragraph 4 that there is no rule of this Court that limits the filing of 1st respondents brief to 5 days. Learned senior counsel for the 1st respondent also filed written address on the 1st day of December, 2020 and referred to the preamble to the Practice Direction restricting application of the Direction to Election Appeals.
The 2nd respondent filed 5 paragraph counter affidavit and written address prepared and filed by learned counsel, Abdulaziz Sani whose submissions are substantially in accord with the submissions of learned senior counsel for the 1st respondent. I considered the application, the affidavit in support, the counter affidavits and written addresses of the contending parties, I am of the view that the application is frivolous and lacking in merit, it therefore deserves to be dismissed, it is so dismissed.
On the 1st respondent’s preliminary objection, the law is well settled on seemingly endless judicial decisions that the Courts have compelling obligations to hear and determine first, any preliminary objection, before proceeding to consider and determine the substantive case on the merit where so doing turns out to be necessary. I will now proceed to consider and determine the 1st respondent’s preliminary objection.
1st Respondents Preliminary Objection’
As I stated earlier, counsel withdrew the first part of his preliminary objection and argued the second part dealing with the appellant appeal being academic. I will take the submissions of counsel on this point now. Counsel said the appeal is lacking in utilitarian value, he submitted that the reliefs sought by the 1st respondent were aimed at ensuring that the approved list of delegates for the 1st appellant’s primary election fixed for 5th September, 2020 was used for the purpose of conducting the primary elections. Counsel said following the order of the trial Court granting the reliefs, the approved list of delegates was used to conduct the primary elections, and that the appellant did not challenge the decision of the trial Court granting the relief but instead challenged the consequential order reversing the disqualification of the 1st respondent.
Learned counsel therefore said this challenge to the order of the Court at this time is of no utilitarian value because the elections of 5th September, 2020 had since been conducted and a winner was declared. Learned counsel said the 1st respondent whose grouse was that he was disqualified obtained respite from the order of the Court, his disqualification was reversed and he fully participated in the elections.
Learned counsel therefore said for the reasons set out there is nothing left, the appellants appeal has become academic since any decision given may not have any practical utilitarian value, counsel said even if the appellants obtain Judgment, their success will serve no useful purpose, to support his submissions on this point, counsel relied on the decisions of this Court in C.P.C. v. I.N.E.C. (2011) LPELR-82579(SC) Pg. 78-79, G-E; (2011) 18 NWLR (Pt. 1279) 493; Ikuforiji v. F.R.N. (2018) LPELR-43884(SC); (2018) 6 NWLR (Pt. 1614) 142; Odom &Ors v. PDP &Ors (2015)LPELR-24351 (SC) Pg. 56 F-G; (2015) 6 NWLR (Pt. 1456) 527, and Ugba& Anor v. Suswam & Ors (2014) LPELR-22882 (SC) 64-65 C – B; (2014) 14 NWLR (Pt. 1427) 264. Learned counsel then urged that this appeal being an academic exercise be struck out.
Reacting to the preliminary objection, counsel for the appellants said there is no evidence from the records that the said elections were in fact conducted on the 5th day of September, 2020, he also submitted that the delegates list referred to by counsel for the 1st respondent was not exhibited, counsel said from the records of the Court, the issue of respondents victory at the election remains contentious. Counsel also relied on the decision in P.D.P. & 2 Ors v. BiobarakumaDegi-Eremienyo& 3 Ors 2020 LPELR-49734 (SC); (2021) 9 N WLR (Pt. 1781) 274 to submit that this Court went ahead to disqualify a candidate even after elections had been concluded and results declared by INEC, counsel also relied on Anyanwu v. Eze (2020) 2 NWLR (Pt. 1708) 379 at 396 in further support of the submission that even where elections have been held and concluded, the matter cannot be held to be an academic exercise.
Appellants contended that the appeal was filed within time, it cannot therefore be held to be academic, counsel further submitted that the issues in this appeal are purely jurisdictional, and jurisdictional issues cannot become academic, he urged this Court to so hold. Submitting on the challenge to consequential orders of the trial Court reversing the disqualification of the 1st respondent by the appellants instead of the reliefs sought, counsel said the notice of appeal and the brief of the appellants show clearly that the appellants challenged the reliefs sought. Counsel urged this Court to dismiss the preliminary objection.
Resolution of Preliminary Objection.
The issue central to the determination of the 1st respondent’s preliminary objection is whether appellants appeal is academic or not. A suit becomes academic where it appears theoretical, makes empty sound and lacks practical utilitarian value to the plaintiff even if judgment is given in his favour. See: Plateau State v. A.-G., Federation (2006) 3 NWLR (Pt. 967) 346; Odedo v. I.N.E.C. (2008) 17 NWLR (Pt. 1117) 554.
Again, Courts engage in resolving live issues. Once a suit no longer has live issues for determination, such a suit becomes academic, and the Courts must on no account invest precious judicial time toiling and slaving to resolve such hollow, insignificant, worthless and academic issues.
Just to refresh our minds on the issue at stake, the appellants took out originating summons at the trial Court wherein they submitted the following questions for determination:
- Whether upon proper construction and interpretation of the provisions of Sections 85(1)(2) and 87(c)(i) and 87(7) of the Electoral Act, 2010 (as amended), the defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
- Whether by the provisions of Article 15(2) and 18 of the 1st defendant’s Constitution the 1st defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
- Whether by the provision of Section 87(4) of the Electoral Act, 2010 (as amended) and Article 59(2)(c) of the 1st defendant’s Constitution, the 1st defendant can conduct the primaries for its senatorial candidate in any other place or venue different from the senatorial constituency headquarters as prescribed by its Constitution.
Upon the determination of the questions set out herein, the 1st respondent then sought for the following reliefs:
a. A declaration that the 1st defendant is bound to utilize the list of the party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March, 2020, same having been authenticated by the 1st defendant and certified by the 3rd defendant, for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial Bye election in Cross River North Senatorial District.
b. An Order of this honourable Court restraining the 1st and 2nd defendants either by themselves or acting through their organs, agents, privies from carrying out any change, modification, exclusion, substitution or however described by them, to the list of party members who emerged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 same having been authenticated by the 1st defendant and certified by the 1st defendant for the Senatorial candidate of the 1st defendant for the Senatorial Bye election in Cross River North Senatorial District.
c. An order of this honourable Court restraining the 3rd defendant from giving effect to any purported change, modification, exclusion, substitution, or howsoever described by the 1st defendant to the list of party members who emerged as ward and Local Government Areas executives of the 1st defendant on the 7th and 21st March, 2020 same having been authenticated by the 1st defendant and certified by the 3rd defendant for the purpose of selecting the Senatorial candidate of the 1st defendant for senatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.
d. An order of this honourable Court directing the 1st defendant to conduct the primary elections for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial Bye election in Cross River North Senatorial District for 5th September, 2020 or any other date, at the senatorial Headquarters in Ogoja in accordance with the provisions of the 1st defendant’s Constitution.
e. And for such other order this honourable Court may deem fit to make in the circumstance of this case.
The 1st respondent sought for a declaration that the 1st defendant is bound to utilize the list of the party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March, 2020, same having been authenticated by the 1st defendant and certified by the 3rd defendant, for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial Bye-election in Cross River North Senatorial District. An order restraining the appellants from altering the list of 3rd defendant not to give effect to any change, to conduct the primary elections in Ogoja in accordance with the provisions of the Constitution of the 1st defendant. The trial Court granted all the reliefs sought, the 1st appellant accordingly complied with the order of the trial Court, relied on the authentic list and conducted the primary elections accordingly. The entire event started and ended. The event became completed, closed and sealed.
Learned senior counsel for the appellants relied heavily on the decision of this Court in Anyanwu v. Eze (2020) 2 NWLR (Pt. 1708) 379, and submitted that the correct position of the law is that pre-election well within the relevant statutes and time prescribed remains a live issue in spite of the general elections that had been concluded, and that this appeal is not academic as contended by the 1st respondent.
The decision of this Court in Anyanwu (supra) heavily relied on by learned senior counsel for the appellants, is completely distinct from the instant appeal because in that case, the facts are that a pre-election matter was filed at the Federal High Court Owerri on the 24th day of October, 2018. By the provisions of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Federal High Court was mandatorily required to deliver its judgment within 180 days fromthe date of filing the suit.
The decision of the lower Court was delivered on the 4th day of May, 2019. At the time the judgment of the lower Court was delivered, the trial Court no longer had jurisdiction to hear and determine the case since the constitutional period available to hear and determine pre-election matters had elapsed. From the date the petition was filed and the date the lower Court delivered its judgment was 192 days. This therefore clearly shows that the order of retrial made by the lower Court was made in error since the trial Court no longer had jurisdiction to hear and determine the matter.
The instant appeal has to do with skirmishes and political party squabbling over authenticity of list of delegates and whether the 1st defendant Peoples Democratic Party had the power to tinker with the authentic list in conducting its party primaries. The trial and lower Courts made a concurrent finding directing that the authentic list be used and primary elections be conducted to select candidate for the bye-election, the primary election was conducted and candidate for the bye-election emerged and the bye-election was accordingly conducted. The 1st appellant complied with the order of the trial Court and restored the authentic list. I am of the view that the emphasis placed by the appellants on the decision of this Court in Anyanwu (supra) is misconceived because the facts and circumstances in the decision are different from the facts and circumstances of the instant appeal.
In my humble view therefore, there is nothing left for the Court to pronounce upon, there is no live issue for the Court to adjudicate upon, there is nothing on record to show that the appellants are challenging the election of any person, their main grievance is that the trial and lower Courts did not allow them use their list of candidates in conducting the primary elections.
Are the appellants calling on this Court to order that their list of delegates be used after the time limited for conducting the bye-election had elapsed? I think the appellants in this appeal have clearly confronted this Court with an appeal that is out and out, academic and therefore not deserving of any positive consideration whatsoever. Any decision rendered in this appeal will be of no use to the appellants because the authentic list as directed by the Courts, was used and the primary and bye-elections have since been concluded. In Anyanwu v. Eze (supra) my learned brother, Sanusi, JSC, (as he then was) held as follows:
In Plateau State v. A.-G., Federation (2006) 3 NWLR (Pt. 967) 346; 137 LRCN 1400 this Court stated as follows:
“A suit is academic where it is thereby theoretical makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.” See Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554.
Once a suit no longer has live issues for determination, such a suit is academic and a Court should on no account spend judicial time, or engage in academic exercise. Courts are to determine live issues. See: Oyeneye v. Odugbesan (1972) 4 SC 244; Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR 634.
I queue behind this decision and hold the view that appellants appeal is academic. Since the appeal is patently academic,appellants must not engage in inviting this Court to dish out vain, sterile, and impracticable orders. Appellants obviously have nothing useful to urge this Court. This appeal having been adjudged to be manifestly academic therefore deserves to be struck out. See: Ogbonna v. President, F.R.N. (1997) 5 NWLR (PT 504) 281, where Uwaifo, JSC (as he then was), held as follows:
“… 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 any way. See also A – G Fed v. A.N.P.P. (2003) 12 SC (Pt II) 146 @ 170, (2003) 18 NWLR (PT 831) 182 @ 215 …”
In conclusion therefore, I must add that, even without the 1st and 2nd respondents briefs of argument, this Court is bound to consider the appeal on the appellants brief to determine whether it will succeed or fail. This Court is therefore entitled to adjudge the appellant’s appeal academic even if the appeal is heard and determined on the appellants brief alone.
On the whole therefore, the 1st respondent’s preliminary objection is meritorious and is accordingly sustained, the appellant’s appeal having been adjudged academic is therefore struck out.
Parties in this appeal shall bear their respective costs.
SC.838/2020
