Honourable Gozie Agbakoba V. Independent National Electoral Commission & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This appeal is filed by the plaintiff (appellant in this court) against the unanimous decision of the Court of Appeal of the Enugu Judicial Division sitting in Enugu given on 28th June, 2007, striking out the appellant’s appeal as it has become a mere Academic exercise.

The plaintiff who is also the appellant in the Court of Appeal being totally aggrieved by the decision has brought this appeal by a notice of appeal dated and filed on 3rd of December, 2007, the leave of this court having earlier on been granted on 21st of November, 2007, to that effect. In the trial court, the plaintiff’s suit which is hinged on the interpretation of Section 34 of the Electoral Act, 2006, vis-a-vis the substitution of the appellant by the 2nd defendant (2nd respondent) for the 3rd defendant (3rd respondent in this court) as its candidate for the Onitsha North and South Federal Constituency of Anambra State.

Parties in this court have filed and exchanged their respective Briefs of Argument in this matter. The appellant has in his Brief of Argument raised two issues for determination; and they are set out as follows:

1. Whether the Court of Appeal was right to hold that the conduct by the 1st respondent of election into the Onitsha North/Onitsha South House of Representatives Seat while appellant’s appeal was pending at the Court of Appeal rendered the appeal a mere academic exercise
2. Whether this appeal presents an appropriate occasion for the exercise of the general powers of the Supreme Court under Section 22 of the Supreme Court Act, to deal with appellant’s claim without remitting same to the Court of Appeal, and if it is, whether the appellant is entitled to judgment on the merits of his claim

The 1st respondent has formulated two issues very identical to the appellant’s all the same I set them out as follows:

1. Whether the Court of Appeal was right in holding that the appellant’s appeal in the circumstances was a mere academic exercise
2. Whether this appeal presents an appropriate occasion for the exercise of the general powers of the Supreme Court under Section 22 of the Supreme Court Act to deal with the appellant’s claim without remitting same to the Court of Appeal, and if it is, whether the appellant is entitled to judgment on the merits of his case

The 2nd and 3rd respondents have on their part raised a joint Brief of Argument and also distilled two issues for determination and they are:

1. Whether the Court of Appeal was right to hold that the appeal had become an academic exercise in view of the fact that the election the subject matter of the appeal had been concluded and that by virtue of Section 285(1)(a) Constitution of the Federal Republic of Nigeria, 1999 and Sections 69(c), 140(1) and 145(1)(a) to (d) of Electoral Act, 2006, the appellant’s rights had inured to the Election Tribunal
2. Whether the decision of the Court of Appeal not to consider and allow the appeal occasioned a gross miscarriage of justice

This action, I must emphasize, has been commenced by way of Originating Summons accompanied with an affidavit and has suffered one amendment. The facts of this case are not complicated. In the Amended Originating Summons dated 29th of March, 2007, filed before the trial court, the appellant (plaintiff) has sought the following reliefs; thus:

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 or some form of inquiry 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 the 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 cat (sic) 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.The copious affidavit in support supplies further facts; I shall come back to it later on. The 2nd and 3rd respondents have filed their joint counter-affidavit in response to the appellant’s affidavits; the 1st respondent has not filed any counter-affidavit. Suffice it to say that the appellant is vigorously challenging the alleged unlawful substitution of the appellant’s name by the 2nd respondent for the 3rd respondent’s name. The 2nd and 3rd respondents have countered by contending that the substitution of the appellant accords with the procedure prescribed under Section 34 of the Electoral Act, 2006 and therefore proper and lawful.

Meanwhile, it is to be noted that the election at the centre of this matter was held on 21st April, 2007, that is, during the pendency of this matter at the Court of Appeal. On 15th of May, 2007, the matter was listed before the lower court for hearing; it suo motu raised the issue that the appeal has become a mere academic exercise since the election it has foreshadowed has been held, and the 3rd respondent having been elected, has since taken her seat in the House of Representatives representing the Onitsha North and South Federal Constituency of Anambra State. In the lower court, the parties were ordered to file their respective written addresses on the crucial issue of whether the appeal is now a mere academic exercise In compliance with the lower court’s order written addresses have been filed and exchanged.

Be it noted that in view of the peculiar fact scenario of this matter I have to emphasise that the parties joined issues as per their respective Briefs of Argument filed and exchanged in this matter in the court below to show that it is not in the least for want of presenting their cases for adjudication at the court below that the real issue in dispute between the parties was not heard on the merits. There is therefore enough materials before the court below to enable it deal with this case on the merits.

However, sequel to the order to file written addresses by the court below on 15/3/2007, the appellant has filed a written address on 17th May, 2007; so also the 1st respondent on 22nd of May, 2007; the 2nd and 3rd respondents filed a joint written address on 22nd May, 2007. The court below at the end of hearing in addition to the submissions of the parties found that the appeal is a mere academic exercise and in the leading judgment of the court below, it held at page 246 lines 19-22 and page 248 lines 16-22 of the record, per Bada, JCA., thus:

In my humble view by the combined effect of Section 285(1)(a) of the 1999 Constitution and Sections 69(1), 140(1) and 145(1)(a) to (d) of the Electoral Act, 2006, this cause of action has inured to the Election Tribunal.

The Honourable court went ahead to hold thus:

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.

By this decision, the appellant’s substantive appeal before the court below has to be struck out without it being resolved on the merits of his claim. As I said above being understandably aggrieved by the precipitate decision of the court below, thus, pre-empting his case in this matter the appellant has appealed from the decision to this court. By the foregoing I have provided a robust factual background to this matter.