Chief Albert Abiodun Adeogun & 2 Ors Vs Hon. John Olawole Fashogbon & 2 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, JSC.

The action which has given birth to this appeal was commenced at the Abuja Division of the Federal High Court on the 16/2/2007 when the writ of summons was issued. The Plaintiff is the Appellant in the substantive appeal pending at the Court below but the 1st Respondent in this appeal before us. The 1st and 2nd Defendants are also the 1st and 2nd Respondents in the said substantive appeal at the Court below but are the Appellants before us.

In their motion filed on the 23/4/2007, at the Court below the two Defendants/Respondents prayed the court for:

“An order striking out this appeal on the grounds

(a) that the court no longer has jurisdiction to entertain or determine same.

(b) that the appeal has become purely academic or hypothetical”

The grounds for the application are contained in paragraphs 3, 4, and 5 of the affidavit in support. The said paragraphs state:

“3. That the claims of the Appellant (Plaintiff) relate to his aborted candidature for election to the House of Representatives which election was held on Saturday 21st April2007.

That even if the Appellant (Plaintiff) succeeds in this appeal it cannot be of any benefit to him since the election has been held.

That the 1st Respondent (1st Defendant) told me and I verily believe that he won the election to the House of Representatives as the candidate of the Peoples Democratic Party (P.D.P.)

By its ruling on the 7/6/2007 the Court below refused the application and same was dismissed.

This appeal is against that ruling. The parties have, through their counsel, filed and exchanged their briefs of argument. Chief Akin Olujinmi SAN prepared the Appellants’ brief which was filed on the 21/9/2007. He also prepared the Appellants’ Reply Brief and it was filed on the 24/12/2007. The Plaintiff/1st Respondent’s brief was prepared by L.O. Fagbemi SAN and same was filed on the 28/11/07. In their respective briefs each of the learned senior counsel formulated only one issue for determination and it is whether the lower court gave proper consideration to the challenge of its jurisdiction to continue to exercise jurisdiction to determine the appeal before it.

In his argument, Chief Olujinmi SAN referred to the fact that the appeal before the lower court, if successful, was to enable the Plaintiff/Appellant/Respondent participate as a candidate in the election fixed for the 21/4/07 and submitted that since the election for which he wanted to be a candidate has already been held, the appeal had become a mere academic exercise, contending that even if he wins the pending appeal it cannot be of any benefit to him. It is settled law that, the court will not spend its valuable time to deal with academic or hypothetical issues, counsel argued. He relied on Badejo v. Federal Ministry of Education (1996) 8 NWLR (Part 464) 15 at 41; Agbonna v. President Federal Republic of Nigeria (1997) 5 N.W.L.R. (Part 504) 281 at 187; Okotie Eboh v. Manager (2004) 18 NWLR (Part 905) 242 at 285, (2004) 9-12 SCM (Pt.2) 133. It was further submitted that an applicant and the court are bound by the prayers in the application before the court and that it was not open to the court to formulate and determine issues not submitted to it by the parties. For this submission learned senior counsel relied on Commissioner for Works Benue State v. Devcon (1988) 407 at 420; Tukur v. Gongola State Solicitor General (1989) 4 N.W.L.R. (Part 144) 592 at 604; N.D.I.C. v. S.B.N. (2003) 1 N.W.L.R. (Part 801) 311, at 385-386. In the Reply Brief Chief Olujinmi SAN referred to the admission in the 1st Respondent’s brief that the suit deals with election to the House of Representatives and contended that the candidature of that election was no longer a live issue before the Court below, the same having abated after the 21/4/2007 when the election was held. According to counsel, any question concerning candidature for the election is, by the combined effect of section 285(1) of the Constitution and Sections 144 and 145 of the Electoral Act 2006, exclusively vested in the tribunal constituted for that purpose. Learned Senior Counsel distinguished Amaechi v. INEC & ors SC.74/2007 delivered on the 11/5/2007 saying that the abatement of jurisdiction in this case is not based on expulsion of the Respondent from the party but rather on the fact of the election having been held pursuant to the law. It was further submitted that there is no rule of law or decision of this Court that a pre-election matter must be heard to conclusion notwithstanding that the election to which it relates has been

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