Chief Albert Abiodun Adeogun & Ors V. Hon John Olawole Fashogbon & Ors (2008) LLJR-SC

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

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

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 April, 2007.

4. That even if the appellant (plaintiff) succeeds in this appeal it cannot be of any benefit to him since the election has been held.
5. 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 MINSTRY 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. 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) I 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 alive 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 held. The cases of AWOJUGBAGBE LIGHT INDUSTRY LTD. v. CHINUKWE (Supra) and ATTORNEY GENERAL OF THE FEDERATION v A.N.P.P. (2003) 18 N.W.L.R (Part 851) 182 at 210 – 211 support the main complaint of the Appellant, counsel argued. He relied particularly on the statement of Uwaifo J.S.C. in ATTORNEY-GENERAL OF THE FEDERATION v A.N.P.P. at 215.

The totality of the submissions of L.O. Fagbemi SAN is that on the authority of AMAECHI v I.N.E.C & ORS (supra) pre-election cases still have live issues after the election.

For a proper understanding of the case let me, at the risk of some repetitions; relate the facts of the case up to the application which ruling has given rise to this appeal. Both in the writ of summons and in the Statement of Claim filed on the 16/2/2007 the plaintiff claims the following reliefs:

(i) Declaration that the 2nd defendant has no right and/or power to recommend the substitution of the plaintiff with the 1st defendant as candidate of the PDP for the Federal Constituency.

(ii) Declaration that the proposed substitution or replacement of the plaintiff with the 1st Defendant as the candidate of Peoples Democratic Party for the ife Federal Constituency by the 2nd and 3rd Defendants is unlawful, illegal, unconstitutional null and void and of no effect whatsoever.

(iii) Declaration that the proposed selection of the 1st Defendant as the candidate of PDP for the Federal Constituency is fraudulent, unlawful, illegal unconstitutional null and void and of no effect whatsoever.

(iv) Perpetual Injunction restraining the 1st defendant from allowing himself to be substituted, or presented to the 4th Defendant as the candidate of People Democratic Party for the the Federal Constituency in the 2007 general election.

(v) Perpetual Injunction restraining the 2nd and 3rd defendants from substituting and/or presenting the 1st Defendant to the 4th Defendant as candidate of Peoples Democratic Party for ife the Federal Constituency in the 2007 general election.

(vi) Perpetual Injunction restraining the 4th Defendant from recognising and/or accepting the 1st Defendant as candidate of Peoples Democratic Party for the Ife Federal Constituency in the 2007 general election.

The 1st and 2nd Defendants/Appellants filed a joint Statement of Defence of 21 paragraphs. In response thereto the Plaintiff/Respondent filed a 7 paragraph Reply.

On the same 16/2/2007 when the plaintiff/respondent filed the writ of summons and Statement of Claim, he also filed a motion ex parte and another on notice for interlocutory injunction. He sought the following reliefs:

1. Interlocutory Injunction restraining the 2nd and 3rd defendants/respondents from removing or giving any effect or any further effect to the purported removal of the plaintiff/appellant as a candidate of the Peoples Democratic Party for the Ife Federal Constituency pending the determination of the substantive suit.
2. Interlocutory Injunction restraining the 2nd and 3rd defendants/respondents from substituting, replacing, given any effect or any further effect to any purported substitution or replacement of the plaintiff/appellant with the 1st defendant/respondent as a candidate of the Peoples Democratic Party for the Ife Federal Constituency pending the determination of the substantive suit.
3. Interlocutory Injunction restraining the 4th defendant/respondent from accepting, recognising, giving any effect or any further effect to any purported acceptance or recognition of the 1st defendant/respondent as a candidate of the Peoples Democratic Party for the Ife Federal Constituency pending the determination of the substantive suit.

In support of their motion, the plaintiff/respondent deposed to a 26 paragraph affidavit restating the essential facts averred in the Statement of Claim. And Attached thereto were Exhibits “A” “B” “C” “D” and “E” authenticating the facts deposed. The 1st defendant/appellant also deposed to a 23 paragraph counter affidavit for himself and on behalf of the 2nd Defendant/Appellant. Attached thereto were also Exhibits A, B, C, D, E, F, G, and H in verification of the facts asserted. The plaintiff/ 1st respondent asserted that there was a P.D.P. primary election for the selection of its candidate for the Ife Federal Constituency and that he was the sole candidate and scored 1,425 votes. This assertion was denied by the 1st and 2nd defendants/appellants. According to them, there was no such P.D.P. primary election. And that the 1st respondent was only selected by consensus. Besides this, all the other facts were essentially uncontroverted. Apparently because of this essentially uncontroverted nature of the affidavit evidence, no oral evidence was taken and on the orders of the trial Court written addresses were submitted. Counsel for the parties also made oral submissions on the 7/3/2007. The motion for interlocutory injunction was not taken. By its judgment on the 19/3/2007 the trial Court dismissed the suit. The Plaintiff/1st Respondent then went on appeal to the Court below. That appeal is still pending at the Court below when the application resulting in this appeal was filed.

The main thrust of the argument of Chief Olujinmi SAN is that although election into the House of Representatives was the sale issue on the 16/2/2007 when the action was filed and remained so only up to the 21/4/2007 when the election was held; that after the election for which candidacy the suit was filed, there ceases to be any live issue for trial, same having abated. He relied mainly on BADEJO v. FEDERAL MINISTRY OF EDUCATION (supra) and that AMAECHI v INEC (supra) does not apply. Fagbemi SAN submitted on the other hand that AMAECHI’s case applies.

In BADEJO v. FEDERAL MINISTRY OF EDUCATION (supra) the appellant, suing by her father as next friend, on the 29/9/88 at the High Court of Lagos, brought an application under the Fundamental Rights (Enforcement Procedure) Rules for the enforcement of her fundamental rights. She claimed (i) a declaration that she is entitled to freedom from discrimination on the basis of her state of origin with regard to cut off marks and marks scored by her and her eligibility to be called for interview for admission into Federal Government Colleges and (ii) a declaration that the decision of the Respondents not to call her for interview based on her state of origin was discriminatory, faulty, irregular, unconstitutional, null and void. The Appellant also sought an injunction in the following terms:-

“An interim order restraining the Respondents their agents and privies from conducting the interview for admission into Junior Secondary 1 for the 1989 session at Queens College Yaba Lagos, Federal Government College Ijanikin Lagos and all other designated interview centres through out Nigeria on Saturday October 8, 1988 or an order directing a stay of all actions on matters relating to admission of students for the 1989 session at Queens College Yaba, Federal Government College Ijanikin Lagos and all other Federal Government Colleges in Nigeria for which the interview mentioned in this application is planned until the final determination of the application of the Applicant for an order enforcing and hearing the enforcement within Lagos State of the Applicant’s rights to freedom from discrimination on the ground of her State of Origin.”

And after the interview scheduled for the 8th October, 1988 had been held, the Applicant by an amendment granted, added the following relief:-

“An interlocutory order restraining the 1st, 2nd, and 3rd respondents and/or their agents and privies from marking the scripts of candidates for and/or collating and/or releasing the results of the interview examination held all over Nigeria on 8th October, 1988 in respect of the admission of candidates into Junior Secondary School 1 in all Federal Government Colleges in Nigeria including Queens College Lagos by any form of publication issuance and despatch of letters of admission until the final determination of the applicant’s application…”

By its ruling on the 4/11/88, the learned trial judge struck out the suit on the ground that the Appellant failed to show that she suffered injuries greater than those suffered by all other successful candidates who were not called for interview. Her appeal to the Court of Appeal was allowed, with the Court holding that the Appellant had the locus standi to bring the action. The Court however struck out the suit on the ground that the matters complained of had been completed and overtaken by events such that there was nothing left to be remitted back to the trial court for trial. Her further appeal to this Court was dismissed by a majority decision of three to two (Ogundare and Ogbuegbu JSC dissenting.) In his lead judgment Kutigi JSC (as he then was) at pages 40-41 had this to say:

“Certainly if the declarations and the order sought by the appellant’s eligibility to be called for interview on the 8/10/88 for admission into Secondary I in Federal Government Colleges in 1987, the Court of Appeal must be right when on 8/1/90, some 15 months after the interview, it 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 entirety. I endorse the action. 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.”

Chief Olujinmi SAN, relying on the above pronouncements argued that the suit, having been overtaken by the event of the election of the 21/4/07 has abated.

It needs to be pointed out that the two declaratory reliefs and the two injunctive reliefs called for the court’s exercise of its discretion. And like every other exercise of a court’s discretion, it had to be exercised both judicially and judiciously, and dictated by the peculiar facts and circumstances of the case. It is, for this reason, perhaps necessary to reproduce other pronouncements of Kutigi J.S.C. (as he then was) to highlight the circumstances that influence his decision. At the same page 41 he further said:-

“Chief Ajayi ought to have realised that for a Court of law to have proceeded in the way he suggested would amount to Putting the entire Federal Republic of Nigeria at the mercy of one aggrieved individual. A total brutalization of the people’s fundamental right when compared with the infringement of the appellant’s fundamental rights. That to me would again amount to a subversion.”

The above pronouncements demonstrate clearly, that the all pervading consideration of the court was the far reaching and devastating consequences of a grant of the reliefs sought by the Appellant. Because of the alleged violation of her right to be invited for interview for admission into Federal Government Colleges scheduled for the 8/10/88, she sought an injunction restraining the Respondents from conducting the said interview examination for admission of candidates into all Federal Government Colleges throughout the country. And after the interview, the appellant sought an injunction restraining the Respondents from marking the scripts of candidate and/or collating and/or releasing the results of any candidate from all the Federal Government Colleges through out the country. Even if there was a breach of the Appellant’s right to be invited for the interview, a grant of the reliefs sought would have had monumental consequences, affecting tens of thousands of candidates throughout the country. As Kutigi stated, it would have been “chaos all over the country.”

I have taken the pains to look at BADEJO v. FEDERAL MINISTRY OF EDUCATION (supra) in detail to demonstrate its distinction from the present case. I have earlier above reproduced the reliefs claimed by the plaintiffs/respondent in this case. He claims a declaration that his substitution or proposed substitution with the 1st defendant/appellant as the P.D.P. candidate for Ife Federal Constituency was unconstitutional, null and void. He also claims some injunctive reliefs. The grant of any or all of these reliefs would have had no devastating effect on the election fixed for the 21/4/97. He did not even seek a postponement of the said election. As can be garnered from the Statement of Claim and the affidavit evidence, the plaintiff/1st respondent claims that by virtue of the provisions of Section 65 of the Constitution and Section 32 of the Electoral Act 2006 he sought and obtained the nomination of his political party, P.D.P, as its candidate for the House of Representatives, representing the Ife Federal Constituency; that his substitution with the 1st defendants/appellant did not comply with the provisions of Section 34(2) of the Electoral act and therefore null and void. The question for determination before the Court therefore is who, as between the Plaintiff and 1st Defendant, is the duly nominated candidate of the P.D.P. for the Ife Federal Constituency for the 21/4/2007 election. It is a straight fight between two individuals, that is, the plaintiff/respondent and the 1st defendant/appellant with no other third party interests really involved in the outcome of the case. Not even any of the 2nd, 3rd and 4th Defendants has any stake on the contingent outcome of the suit. The reliefs sought, if granted inure only for the benefit of the plaintiff and to the detriment only of the lst defendant. Conversely, if the claim fails, only the Plaintiff suffers, while the 1st Defendant alone takes the benefit of the failed action. This case is therefore clearly distinguishable from BADEJO’s case where the interest of the entire nation was at stake. A grant of the reliefs sought therein for the alleged breach of the plaintiff/appellant’s right to be invited for interview would have affected the interview examination and admission of tens of thousands of children throughout the country. I hold therefore that BADEJO’s case does not apply to this case.

Now, does this case then come within the principle in AMAECHI v. INEC (2007) 18 NWLR (Part 1065) 42 In that case, at the P.D.P Governorship primaries conducted for Rivers State, the plaintiff/appellant emerged the winner and his name duly submitted to INEC as the P.D.P. candidate for the Governorship election in Rivers State. Sometime thereafter, the P.D.P. (3rd Defendant/Respondent) substituted the name of the 2nd defendant/respondent for the plaintiff/appellant as the party’s Rivers State Governorship candidate for the April 2007 election. The 2nd defendant/respondent did not contest the party’s primaries where the plaintiff/appellant was elected. The appellant was aggrieved and then filed an action at the Federal High Court, claiming that he was the duly nominated candidate of the P.D.P. for the Governorship election and sought injunctive relief to restrain the substitution. The trial court dismissed the action, holding however that the substitution was wrong, same having been made in breach of Section 34(2) of the Electoral Act 2006. There was an appeal and cross-appeal to the Court of Appeal. While the appeals were pending, the P.D.P. (3rd respondent) purportedly expelled the plaintiff/appellant from the party. Both the 2nd and 3rd Respondents each filed a motion for striking out or dismissing the action on the grounds that:

(a) The appeal is now incompetent by reason of the expulsion of the Appellant/Respondent from the Peoples Democratic Party (P.D.P.) thereby making the outcome of the suit a mere academic exercise.

(b) By reason of the expulsion of the Appellant/Respondent from the Peoples Democratic Party he has lost locus standi to prosecute this appeal.

By its unanimous decision, the Court of Appeal held that the applications had merit and both the appeal and cross-appeal were struck out for incompetence. Plaintiff/Appellant appealed to this Court. By its unanimous decision, this Court allowed the appeal; holding, in substance, that the purported expulsion of the plaintiff/respondent notwithstanding, the court still had the jurisdiction to hear and determine the appeal. In my little contribution at page 48 of the report I had this much 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 had the jurisdiction to hear and determine a matter cannot, by the subsequent 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 Plaintiff’s claim in a matter that determines the jurisdiction of the court. See AKINFOLARIN v. AKINNOLA (1994) 3 NWLR (part 335) 659; ADEYEMI v. OPERORI (1976) 9-10 SC 31 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 and determine the appeals…”

It is my considered view that the principle embodied in the above statement applies with equal force to this case, the different factual situations notwithstanding. The motion which ruling has resulted in this appeal was filed on the 23/4/2007 – two days after the election of the 21/4/07 to terminate the appeal on the grounds (i) that by virtue of the election of the 21/4/2007 the court which originally had jurisdiction no longer had any to hear and determine the appeal and (ii) that the appeal has, by reason thereof become merely academic. I do not think I have any cause to depart from the views I expressed in AMAECHI’s case (supra). In my view, the fact of the election of the 21/4/07 notwithstanding, the dispute as to whether the 1st defendant/appellant was rightly substituted for the Plaintiff/Respondent still remains a live issue for determination by the Court. A court which has jurisdiction to entertain an action would not subsequently lose that jurisdiction simply because a defendant, in some vantage position and in complete disregard for the outcome of the pending suit, goes ahead to do that which is sought to be prevented in the suit. Put in another way, a defendant in a cause has no legal authority to determine the outcome of the claim against him by purporting to complete the very act sought to be prohibited in the suit. That would amount to the court’s abdication of its constitutional and sacred duty of dispensing justice in disputes between persons or between Government or other authorities. It will send a rather dangerous signal to a genuinely aggrieved plaintiff that he cannot obtain redress for a wrong committed by a defendant in some vantage position. If the argument, so forcefully advocated by Chief Olujinmi SAN is accepted, “then a defendant in a matter for title to land who, during the pendency of the suit, rushes to complete a building thereon acquires good title and can, as in this case, proceed to ask the case to be struck out for incompetence or that the matter has, by the very fact of the completion of the building become merely academic. I am, with respect, not persuaded by that argument.

The defendants/appellants in this case cannot, by persevering in the very substitution which is being challenged, feter the jurisdiction of the court to make its final pronouncement on the issue presented to it for adjudication. The corollary of this is that an unlawful act which illegality is being pursued in a judicial proceeding cannot metamorphose into a legitimate one by a plea of the defendant that the act has been completed. After all, it is settled principle of law that a party committing an illegality cannot be allowed by the court to benefit from the self-same illegality, lest the court will portray itself as an instrument of injustice. See OILFIELD SUPPLY CENTRE LTD. v. JOHNSON (1987) 2 NWLR (Part 58) 625; (1987) 2 NSCC 725 at 739; SODIPO v LAMMINKAINEN (No.1) (1985) 2 NWLR (Part 8) 547 at 557; AFRICAN PETROLEUM LTD. v. OWODUNNI (1991) 8 NWLR (Part 220) 391 at 421.

In my view, once a person who is aggrieved or injured by the action of another comes to court to seek redress, the court must jealously guard its jurisdiction to hear and determine the case to its finality. It cannot surrender and subject its jurisdiction to the dictates and manipulations of the defendant.

On the Court’s duty to guard its jurisdiction jealously at all times the pronouncement of this Court in DR. O.G. SOPEKUN v CHIEF N.O.A. AKINYEMI & ORS. (1980) 5-7 SC 1 at 18-19 is opposite. The Court, per Aniagolu JSC said:

“It is essential in a constitutional democracy such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the Executive or its agencies, the power and jurisdiction of the courts under the Constitution must not only be kept in tact and unfettered but also must not be nibbled at. To permit any interference with or a usurpation of the authority o(the courts, as aforesaid, is to strike at the bulwark which the constitution gives and guarantees to the citizen, of fairness to him against all arbitrariness and oppression. Indeed so important is this preservation of, and non interference with the jurisdiction of the courts that our present constitution (Decree NO.25 of 1978) has specifically provided (see Section 4(3) that neither the National Assembly nor a House of Assembly shall “enact any law that ousts or purports to ousts the jurisdiction of a court-of law or a judicial tribunals established by law.”(Italics mine)

See also ADEYEMI (ALAFIN OF OYO) & ORS V ATTORNEY GENERAL OYO STATE & ORS (1984) 397 at 454-455 this Court, Per Aniagolu JSC re-emphasised:

“It cannot be too often repeated, and I had once before drawn attention to this in DR. O.G. SOFEKUN v CHIEF ADEYEMI & ORS (1980) 5-7 SC lat 18-19 that the jurisdiction of courts must be jealously guarded if only for the reason that the beginnings of dictatorship in many parts of the world had often commenced with usurpations of authority of the court and many dictators were often known to become restive under the procedural and structural safeguards employed by the courts for the purpose of enhancing the rule of Jaw and preserving the personal and proprietary rights of individuals. It is in this vein that courts must insist, wherever possible, on the rigid adherence to the Constitution of the land and curb the tendency of those who would like to establish what virtually are kangaroo courts under different guises and smoke-screens of judicial regularity. This, the courts in the discharge of their appointed duties must sternly endeavour to resist.” it is not permissible to remove judicial functions from the courts and confer them upon a non-judicial body …”

In this case, a grant of the application filed on the 23/4/07 would amount to the court’s surrender of this constitutional function and allow the defendants to take over the control of the proceedings. That cannot and should not be.

On the whole, I hold that the election of the 21/4/07 notwithstanding, the propriety or otherwise of the Plaintiffs substitution with the 1st Defendant remains a live issue for determination in the judicial process. In the event, I fully endorse the ruling of the court below and resolve the only issue in favour of the plaintiff /respondent. The appeal is accordingly dismissed with costs which I assess at N50,000.00 against the appellants.

SC.183/2007