CORAM

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ALOYSIUS I. KASTINA-ALU JUSTICE , SUPREME COURT

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PARTIES

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1. CHIEF ALBERT ABIODUN ADEOGUN

2. ALHAJI ADEMOLA RASAQ

3. CHAIRMAN, PEOPLES DEMOCRATIC PARTY, OSUN STATE

APPELLANTS / RESPONDENT(S) 

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HON. JOHN OLAWOLE FASHOGBON & 2

1ST RESPONDENT/APPELLANT 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiffs/ Respondents commenced an action against the Defendants/Appellant at the Federal High Court, Abuja judicial Division seeking a declaration that the substitution or replacement of the 1st Plaintiff/Respondent with the 1st Defendant/ Appellant as the candidate of Peoples Democratic Party for the Ife Federal Constituency by the 2nd and 3rd Defendants/Appellants was unlawful, illegal, unconstitutional, null and void and of no effect whatsoever. The trial court dismissed the suit of the Plaintiff/Respondent. Dissatisfied with the judgment of the trial Court, the Plaintiff/Respondents appealed to the Court of Appeal.  While the appeal was pending, an election was conducted as a result of which the Defendants/Appellants filed a motion praying the Appellate Court to strike out the Plaintiffs/Respondents’ appeal on the grounds that the Appellate Court no longer has jurisdiction to entertain or determine same as the said appeal has become academic or hypothetical given the fact that the general election has been conducted. The Court of Appeal dismissed the Defendants/Appellants’ motion, thus the Defendants/Appellants’ further appealed to the Supreme Court.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the lower court gave appropriate or proper consideration to the challenge of its jurisdiction to continue to exercise jurisdiction to determine the appeal before it which had become purely academic?

2. Whether the Court of Appeal formulated a different issue in the matter?

 

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RATIONES DECIDENDI

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CONSTITUTIONAL RIGHT OF APPEAL OF A PARTY- DUTY OF COURT TO JEALOUSLY GUARD THE CONSTITUTIONAL RIGHT OF A PARTY TO APPEAL AGAINST A JUDGMENT GIVEN AGAINST HIM

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“It must be stated clearly that the right of a party in a case to appeal against the judgment given against is constitutional and such right must be jealously guarded and protected by the court.” PER OGUNTADE, JSC

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EFFECT OF COMPLETION OF AN ACT SOUGHT TO BE PROHIBITED ON THE JURISDICTION OF THE COURT -COURT’S JURISDICTION CANNOT BE OUSTED BECAUSE THE DEFENDANT HAS COMPLETED AN ACT SOUGHT TO BE PROHIBITED IN THE SUIT

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“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.” PER TABAI, JSC

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FORMULATION OF ISSUES FOR DETERMINATION – GUIDE TO COURTS IN THE EXERCISE OF ITS POWERS TO FORMULATE ISSUES FOR DETERMINATION

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“The rules do not provide that the courts can suo motu formulate issues for determination. Viewed from this angle, the position taken by the Supreme Court in Nwokoro v. Onuma is valid and unassailable. That apart, it does not appear that the formulation of issues by the court is consistent with the principle of fair hearing. There could however be compelling circumstances where the court should formulate issues for determination. In such circumstances, the principles of fair hearing and in particular, the natural justice rule of audi alteram partem demand that the parties be heard on the proposed issues by the court for the determination of the appeal. Generally, the court takes the decision to formulate issues for determination of the appeal at the stage of writing judgment. In order to avoid delay in the writing of judgment, it is suggest that the court takes the decision before the appeal is heard.
In such a situation, the proposed issues by the court will be exposed for reaction by counsel. This could be a hybrid solution to the fairly difficult problem. It is necessary to mention that the courts can resort to the formulation of issues as a last resort. It will be an abuse of the judicial process for the Justices to formulate issues for determination merely because they do not agree with those formulated by the parties. The appeal is not theirs. Not even the response to the appeal. They belong to the appellant and the respondent respectively. There must be a compelling cause, so much so that justice will not be done to the appeal if issues are not formulated by the court, is not a routine power but an inherent power which should be exercised judicially and judiciously. There is need to mention that the mind of the Justice must be free at the time he formulates the issues, in the sense that he does not take any side in the appeal at that stage. This is a matter which is beyond the determination of another Justice. The Justice, the owner of his conscience, is the best Judge, and let him exercise it.” PER NIKI-TOBI, JSC

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ORDER OF COURT – COURT DO NOT MAKE AN ORDER IN VAIN

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“It is a settled principle of law that a court would not act in vain or give an order which cannot be enforced. There was a clear impossibility involved in asking the court to make an order to reversea an event that had taken place. In the present case, there was still an unexhausted tenure to be served in the House of Representatives in respect of which the court below could give a valid order.” PER OGUNTADE, JSC

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ISSUE FOR DETERMINATION- MEANING OF ISSUE FOR DETERMINATION

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“An issue is the question in dispute between the parties necessary for the determination by the court. A conclusion reached by a court cannot be described as an issue. Accordingly, it is my view that learned Senior Advocate is not correct in branding the above conclusion of the Court of Appeal as an issue, a ‘fortiori’, formulating and considering a different issue.” PER NIKI-TOBI, JSC

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DETERMINATION OF COURT’S JURISDICTION- PLAINTIFFS’ CLAIMS DETERMINES THE JURISDICTION OF THE COURT

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“It is settled law that whether or not a court has jurisdiction to entertain plaintiffs claim is a matter to be determined by reference to the Plaintiffs’ claims on the writ of summons and statement of claim. See: Adeyemi v. Opeyori [1976] 9-10 SC. 31, Tukur v. Govt. of Gongola State [1989] 4 NWLR (Pt. 117) 517.” PER OGUNTADE, JSC

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BINDINGNESS OF COURT BY ISSUES IN PLEADINGS- COURT ARE BOUND BY THE PRAYER RAISED IN AN APPLICATION AND IT IS NOT OPEN TO THE COURT TO FORMULATE AND CONSIDER A DIFFERENT ISSUE

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“When the appellant’s prayer before the court implicitly conceded that the court had jurisdiction but queried whether the lower court should continue to exercise that jurisdiction in the circumstance of the case and having regards to the principle of law stated in the Badejo’s case (supra); that both the parties and the court are bound by the prayer raised in an application and that it is not open to the court to formulate and consider a different issue, relying on Commissioner for Works, Benue State v. Dvcon (1988) 3 NWLR (Pt. 83) 407 at 420; Tukur v. Gongola S.G. (1989) 4 NWLR (Pt. 144) 592.” PER ONNOGHEN, JSC

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ACADEMIC AND HYPOTHETICAL ISSUES – ACADEMIC ISSUES DO NOT ADD ANYTHING TO THE TRUTH SEARCHING PROCESS IN THE ADMINISTRATION OF JUSTICE NOR HELP IN THE DETERMINATION OF THE LIVE ISSUES IN A MATTER.

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“Academic and hypothetical issues or questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in the administration of justice. This is because they do not relate to any relief. See further Oladoye v. Administrator Osun State (1996) 10 NWLR (Pt.476) 38; Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Anyankpele v. Nigerian Army (2000) 13 NWLR (Pt.684) 209; Moriki v. Adamu (2001) 15 NWLR (Pt. 137) 666; Adewumi v. The Attorney General of Ekiti State (2002) 2 NWLR (Pt. 751) 474. Kentebe v. Isangedighi (2002) 8 NWLR (768) 134.” PER NIKI-TOBI, JSC

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“PRE”- MEANING OF “PRE” IN THE CONTEXT OF ELECTION

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“The dictionary meaning of “pre” is before and the substitution which took place by the letter dated 5th February, 2007 is certainly before the election which was held on 20th April, 2007. The decisions of this court in Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) and Amaechi v. INEC clearly justify the position taken by the Court of Appeal in this matter.” PER NIKI-TOBI, JSC

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ILLEGALITY – A PARTY COMMITTING AN ILLEGALITY CANNOT BE ALLOWED BY THE COURT TO BENEFIT FROM THE SELF-SAME ILLEGALITY, LEST THE COURT WILL BE POTRAYED AS AN INSTRUMENT OF INJUSTICE

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“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.l) (1985) 2 NWLR (Part 8) 547 at 557; African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Part 220) 391 at 421.” PER TABAI, JSC

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JURISDICTION OF COURT – NEED FOR COURT TO GUIDE ITS JURISDICTION

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“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 apposite.” PER TABAI, JSC

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GUIDING PRINCIPLE FOR EXERCISE OF COURT’S DISCRETION – COURT SHOULD EXERCISE ITS DISCRETION TAKING INTO CONSIDERATION THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE

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“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.” PER TABAI, JSC

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CASES CITED

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1. Oilfield Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Part 58) 625; (1987) 2 NSCC 725 at 739;2. Sodipo v. Lamminkainen (No.l) (1985) 2 NWLR (Part 8) 547 at 557;3. African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Part 220) 391 at 421.4. Dr. O.G. Sopekun v. Chief N.O.A. Akinyemi & Ors (1980) 5-7 SC 1 at 18-195. Adeyemi (Alafin of Oyo) & Ors v. Attorney-General Oyo State & Ors (1984) 397 at 454-455

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STATUTES REFERRED TO

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Constitution of the Federal Republic of NigeriaElectoral Act 2006

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