➥ CASE SUMMARY OF:
Action Congress (AC) & Anor. v Independent National Electoral Commission (INEC) & Anor. (2007) – CA/A/101/07
by Branham Chima (SAL).
Court of Appeal – CA/A/101/07
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 27th day of June, 2007
➥ THIS CASE IS AUTHORITY FOR:
⦿ JURISDICTION OF THE COURT IS DETERMINED BY CAUSE OF ACTION
The jurisdiction of the court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the court has jurisdiction. These would be relied on if the facts placed before the court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue. This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the courts. See: A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) page 1; Akande & 2 Ors. v. Busari Alagbe & Anor, (2001) FWLR (Pt. 38) page 1352, (2000) 15 NWLR (Pt.690) 353; A.-G., Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32) page 93, (1999) 9 NWLR (Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’s Araz & Anor. (2000) FWLR (Pt 34) page 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) page 626, (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) page 557, (2000) 6 NWLR (Pt. 660) 228; Okulate & 4 Ors. v. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) page 530-6. — Aboki, JCA.
⦿ WHAT IS AN ACADEMIC ISSUE?
The Apex Court and indeed this court have in a plethora of decisions given an insight into what constitutes an academic exercise. In the case of Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt. 504) page 281, this court Per Uwaifo, JCA (as he then was) made the point that: “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 anyway.” In the same case at page 288, Musdapher, JCA (as he then was) also said thus: “It is trite law that an academic, hypothetical or moot point does not deserve any judicial pronouncement. To attract judicial decision, there must be in existence a live issue or controversy between the litigants. Where there is no contest or where the result of a judicial decision will serve no purpose, it cannot be said that there exists lis within the section 6(6)(b) of the Constitution.” — Aboki, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Emeka Ngige, SAN
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
In this application, the respondents/applicants are praying this court for the following order(s): 1. An order striking out the appeals filed by the appellants on the 3rd day of April, 2007 and 11th of April, 2007 respectively for lack of jurisdiction of this Honourable Court, election having taken place on the 14th of April, 2007. 2. AND for such order or further orders as this Honourable Court may deem fit to make in the circumstances.” The application is brought pursuant to section 285(2) of the 1999 Constitution, section 18 of the Court of Appeal Act. Order 1 rule 19, Order 3 rules 2(7) Court of Appeal Rules, 2002 and the inherent powers of the court and it is supported by an eighteen (18) paragraph affidavit and an annexure marked as exhibit B.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal has the jurisdiction to continue with the hearing of the two pending appeals relating to or connected with pre-election matters after the holding of the Election and the constitution of Election Petition Tribunals to deal with such matters?
A. COURT OF APPEAL CAN CONTINUE WITH HEARING PRE-ELECTION MATTER
[‘In Rt. Hon. Rotimi Amaechi v. Independent National Electoral Commission & 2 Ors. Sc. 74/2007 delivered on the 16th day of May, 2007 (unreported), now reported in (2007) 18 NWLR (Pt. 1065) 42 a pre-election matter before the Supreme Court in which this court had earlier declined jurisdiction because it was a pre-election matter: the Supreme Court per Katsina-Alu, JSC said:- “Having heard all the arguments of learned counsel on all sides, I hold that the Court of Appeal was in error in declining jurisdiction to hear the appeal and the cross-appeal on the merit. It is now ordered that the matter be remitted to the Court of Appeal, Abuja to hear the two appeals expeditiously” It follows from this decision of the Supreme Court that all pre-election matters are to be heard on the merit and expeditiously too.’]
II. Whether the two appeals pending before this court have not become otiose and academic having regard to the Supreme Court’s decision in SC.69/2007- Action Congress & Anor v. INEC delivered on the 16th day of April, 2007; (2007) 12 NWLR (Pt. 1048) 220?
A. THE TWO APPEALS HAVE NOW BECOME ACADEMIC
[‘The twist in this appeal is that the Supreme Court in a unanimous decision declared that the office of the Governor of Anambra State is not vacant and that the Independent National Electoral Commission (INEC) was wrong to have conducted the election when the tenure of the incumbent Governor extends beyond 29th May, 2007 in the case of Mr. Peter Obi (Governor of Anambra State) v. INEC & 7 ors. SC.123/2007 delivered on 14th of June, 2007; reported in (2007) 11 NWLR (Pt. 1046) 436) per Katsina-Alu, J.S.C. stated thus: ‘There being no dispute on the fact that the plaintiff/appellant took his oath of allegiance and oath of office on 17th March, 2006 his term of office will expire on 17th March, 2010. I now consider the order to make. The plaintiff/appellant had in his claim before the High Court sought both declaratory and injunctive reliefs directed at protecting his four year term of office. In its effect, the claim is another way that his term of office extends beyond May 29, 2007. However, the 1st respondent inspite of its awareness that the case was still pending in court went on to conduct the purported election. The court and indeed any court ought not to permit its processes to be treated with disdain. I therefore have a duty to ensure that plaintiff/appellant’s appeal is not rendered nugatory. I therefore make the following declarations and order- 1. That the office of Governor of Anambra State was not vacant as at 29th May, 2007. 2. It is ordered that the 5th respondent, Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant, Mr. Peter Obi to exhaust his term of office.” The above judgment of the Supreme Court has put the wind off the sail of the main appeal and the ancillary appeal lodged by INEC before this court. There is no more live issue to be decided between the parties. The subject matter of the dispute being the election into the office of the Governor of Anambra State, the Supreme Court having declared the office not vacant and that INEC ought not to have conducted the Governorship election in Anambra State. It follows therefore that all issues in the main and the ancillary appeals having ceased to be live issues, any consideration of them will amount to mere academic expression of opinion and a moot debate which activities courts are enjoined to steer clear and are precluded from engaging in. It will be an exercise in futility, a waste of the precious judicial time, energy and resources to proceed with the hearing of the appeals. The appeals are incompetent.’]
‘In conclusion, there is merit in this application brought by the respondents/applicants and the relief sought is granted accordingly. Consequently, the two appeals being incompetent are pursuant to Order 3 rule 2(7) of the Court of Appeal Rules, 2002 struck out’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)