Honourable Gozie Agbakoba Vs Inec & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, JSC

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 plaintiffs 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:

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.

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.

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(l)(a) to (d) of Electoral Act, 2006 the Appellant’s rights had inure to the Election Tribunal.

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

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