P.D.P v. Jarigbe (2021)

P.D.P.v.Jarigbe

1.PEOPLES DEMOCRATIC PARTY

2.COL. AUSTIN AKOBUNDU

V.

1.HON. JARIGBE AGOM JARIGBE

2.INDEPENDENT NATIONALELECTORAL COMMISSION

SUPREME COURT OF NIGERIA

SC/CV/838/2020

MARY UKAEGO PETER-ODILI, J.S.C. (Presided)

EJEMBI EKO, J.S.C.

MOHAMMED LAWAL GARBA, J.S.C.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.

TIJJANI ABUBAKAR, J.S.C. (Read the Leading Judgment)

WEDNESDAY, 6TH JANUARY 2021

ACTION – Academic suit – Academic appeal – What amounts to.

ACTION – Academic suit – Academic appeal – Where interveningevent cuts at root or foundation of case and vested rights ofparties in course of proceedings – Duty of court.

APPEAL – Academic suit – Academic appeal – What amounts to.

APPEAL – Academic suit – Academic appeal – Where interveningevent cuts at root or foundation of case and vested rights ofparties in course of proceedings – Duty of court.

CONSTITUTIONAL LAW – Delivery of judgment – Delivery ofjudgment of Federal High Court in pre-election matter – Timelimit therefor – Section 285(10), 1999 Constitution.

COURT – Academic issue – Attitude of court thereto.

COURT – Delivery of judgment – Delivery of judgment of FederalHigh Court in pre-election matter – Time limit therefor -Section 285(10), 1999 Constitution.

ELECTION – Candidate for election – Duty of political party tonominate and submit name of candidate in compliance withElectoral Act and guidelines for election – Sections 30, 31(1)and 34, Electoral Act 2010.

ELECTION – Delivery of judgment – Delivery of judgment ofFederal High Court in pre-election matter – Time limit therefor- Section 285(10), 1999 Constitution.

JUDGMENT AND ORDER – Delivery of judgment – Delivery ofjudgment of Federal High Court in pre-election matter – Timelimit therefor – Section 285(10), 1999 Constitution.

PRACTICE AND PROCEDURE – Academic issue – Attitude ofcourt thereto.

PRACTICE AND PROCEDURE – Academic suit – Academic appeal- What amounts to.

PRACTICE AND PROCEDURE – Academic suit – Academic appeal- Where intervening event cuts at root or foundation of caseand vested rights of parties in course of proceedings – Duty ofcourt.

PRACTICE AND PROCEDURE – Preliminary objection – Whereraised – Duty of court to hear and determine first.

WORDS AND PHRASES – Academic suit – What amounts to.

Issue:

Whether the appellants’ appeal was academic.

FACTS:

The elected Senator representing Cross River State NorthSenatorial District died in office, which created a vacancy in theSenate. The 2nd respondent issued out a notice on 11th August 2020that on 31st October 2020, a bye- election would be conducted tofill the existing vacancy. Consequently, the 1st appellant fixed itsprimary election for the bye-election for 5th September 2020 andaccordingly requested the 2nd respondent to monitor the election.

However, the 1st respondent was faced with the threat to hisprospects of participating in the bye-election and of losing hischances at the primaries. This was sequel to information gatheredto the effect that, apart from the authentic delegates list submittedto the 2nd respondent, another unapproved delegates list was beingcirculated by a faction of the 1st appellant, led by the 2nd appellantand was to be used for the primaries.

The 1st respondent, having purchased the nomination form forthe primary election, commenced an action against the appellantsand the 2nd respondent on 20th August 2020 at the Federal HighCourt, Port Harcourt by way of originating summons. The 1strespondent sought a declaration that the 1st appellant was boundto utilise the list of the party members who emerged as ward andLocal Government Area Executives of the party on 7th and 21stMarch 2020, same having been authenticated by the 1st appellantand certified by the 2nd respondent for the purpose of selecting the1st appellant’s senatorial candidate in the bye-election; and an orderrestraining the appellants from altering the list, restraining the 2ndrespondent from giving effect to any change and directing the 1stappellant to conduct the primary election in accordance with theprovisions of the 1st appellant’s constitutions.

At the conclusion of hearing, the trial court in its judgmentdelivered on 4th September 2020 granted all the reliefs sought. Thetrial court ordered that the delegates elected on 7th and 21st March2020 as ward and Local Government Area Executives were thevalid delegates to participate in the 1st appellant’s primary electionand that the 1st respondent’s name be restored on the list.

The 1st appellant complied with the order of the trial court,relied on the authentic list and conducted the primary electionaccordingly. It was supervised/monitored by the 2nd respondent.The 1st respondent emerged as the winner of the primary election,nominated as the candidate and participated in the bye-electionwhich was conducted by the 2nd respondent.

However, the appellants were dissatisfied with the judgmentof the trial court and they appealed to the Court of Appeal. TheCourt of Appeal on 2nd November 2020 dismissed the appeal andaffirmed the orders of the trial court.

Still dissatisfied, the appellants appealed to the SupremeCourt. In his brief of argument, the 1st respondent raised apreliminary objection on two grounds dealing with failure to obtainleave to appeal and the appellants’ appeal being academic. At thehearing of the appeal, the 1st respondent withdrew the part of theobjection dealing with the issue of leave and argued the part that theappellants’ appeal was academic.

The 1st respondent contended that the appeal was of noutilitarian value because the primary election of 5th September2020 had been conducted and a winner was declared; that the 1strespondent, whose grouse was that he was disqualified, obtainedrespite from the order of the trial court, his disqualification wasreversed and he fully participated in the election; and that as therewas nothing left, the appeal had become academic.

Held (Unanimously striking out the appeal):

1.On What amounts to academic suit –

A suit becomes academic where it appearstheoretical, makes empty sound and lacks practicalutilitarian value to the plaintiff even if judgmentis given in his favour. A suit is academic if it is notrelated to practical situation of human nature andhumanity. In the instant case, the appellants’ appealwas academic. The appeal would not serve anyutilitarian value. It had become spent and wouldonly serve for academic benefits. [Plateau State v. A.-G., Federation (2006) 3 NWLR (Pt. 967) 346; Odedov. INEC (2008) 17 NWLR (Pt. 1117) 554; Anyanwuv. Eze (2020) 2 NWLR (Pt. 1708) 379 referred to.](Pp. 258, paras. C-D; 262, paras. C-D; F; 263, paras.C-D)

Per ABUBAKAR, J.S.C. at pages 261-262, paras.G-B:

“In my humble view therefore, there is nothingleft for the court to pr onounce upon, there is no live issue for the court to adjudicate upon, there is nothing on record to show that theappellants are challenging the election of anyperson, their main grievance is that the trialand lower courts did not allow them use theirlist of candidates in conducting the primaryelections.

Are the appellants calling on this court toorder that their list of delegates be used afterthe time limited for conducting the bye-election had elapsed? I think the appellantsin this appeal have clearly confronted thiscourt with an appeal that is out and outacademic and therefore not deserving ofany positive consideration whatsoever, anydecision rendered in this appeal will be of nouse to the appellants because the authenticlist as directed by the courts, was used andthe primary and bye-elections have sincebeen conducted.”

Per EKO, J.S.C. at pages 270-271, paras. E-A:

“The cause of action in the suit at the FederalHigh Court leading up to this appeal waswhether the defendants, at the trial court,could ‘alter, modify, amend or substitute thelist of party members who emerged as wardand Local Government Area Executivesof the (PDP) on 7 th and 21 st March, 2020pursuant to the elections duly conducted bythe (PDP) and monitored by the (INEC)’.The complaint presented at the trial court bythe 1 st respondent, as the plaintiff, was thatthe defendants (particularly the appellantsherein) were trying to alter the votingdelegates to his disadvantage. The trial courtruled in favour of the plaintiff/1 st respondentin the judgment delivered on 4 th September,2020 and granted all the reliefs he had sought.On 2 nd November, 2020 the Court of Appeal(the lower court) affirmed the decision andorders of the trial court.

There is no do ubt that, in compliance with theorders of the trial court, the PDP conducted its primary election using the disputed delegateslist. The primary election, by virtue of section87(1) of the electoral Act, was mandatory forthe PDP and its candidate to participate inthe INEC organized by-election, which INEChad since conducted and the results declared.It is now obvious that this appeal will serveno further useful utilitarian purpose, theissue having become purely academic.”

2.On What amounts to academic suit or appeal –

A case or an appeal, for the purpose of judicialadjudication by a court, is said to be academic whenand where there is no and cannot be said to be alive issue in it for consideration and determinationby the court which can materially affect the partiesthereto. This may be because of the fundamentalnature of the reliefs sought or of changedcircumstances since the litigation started, suchthat in case of an appeal, the appeal may becomeacademic at the time it is due for hearing. A case oran appeal is academic when the questions or issuesraised therein have, due to the special and specificfacts from which they arise, become spent suchthat no genuine right or benefit would inure to oron the successful party. When an issue has becomedefunct, it does not require to be answered andleads to making bare legal postulations which thecourt should not indulge in. [Akeredolu v. Akinremi(1986) 2 NWLR (Pt. 25) 710; Nwobosi v. A.C.B. Ltd.(1995) 6 NWLR (Pt. 404) 658; Ogbonna v. President,F.R.N. (1997) 5 NWLR (Pt. 504) 281; Ndulue v.Ibezim (2002) 12 NWLR (Pt. 780) 139; A.-G., Fed.v. A.N.P.P. (2003) 18 NWLR (Pt. 851) 182; Odedo v.I.N.E.C. (2008) 17 NWLR (Pt. 1117) 554, Agbakobav. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 489; Ardov. I.N.E.C. (2017) 13 NWLR (Pt. 1583) 450; UnionBank Plc v. Edionseri (1988) 2 NWLR (Pt. 74) 93;Julius Berger Ltd. v. Femi (1993) 5 NWLR (Pt.295)612; Olaniyi v. Aroyehum (1991) 5 NWLR (Pt. 194) 652; Gov., Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687; Nkwocha v. Gov., Anambra State (1984) 1SCNLR 634 referred to.] (Pp. 271-272, paras. F-C;276-277, paras. H-C)

3.On Attitude of court to academic issue –

Courts engage in resolving live issues. Once a suit nolonger has live issues for determination, such a suitbecomes academic and the courts must on no accountinvest precious judicial time toiling and slaving toresolve such hollow, insignificant, worthless andacademic issues or engage in academic exercise. TheSupreme Court has no jurisdiction or competenceto determine hypothetical questions or to embarkon advisory or abstract academic opinion, hence ithas consistently refused to decide such questions. Inthe instant case, there was nothing left for the courtto pronounce upon and there was no live issue forthe court to adjudicate upon. [Anyanwu v. Eze (2020)2 NWLR (Pt. 1708) 379; Atake v. Afejuku (1994) 9NWLR (Pt. 368) 379; K.R.K. Holdings (Nig.) Ltd. v.F.B.N. Plc. (2017) 3 NWLR (Pt. 1552) 326 referredto.] (Pp. 258, para. E; 277, paras. D-G)

4.On Attitude of court to academic issue –

If no purpose will be served by an action orappeal or any issue raised in it other than its mereacademic interest, the court will not entertain it.It is an essential quality of a suit or an appeal fitto be disposed of by a court that there should existbetween the parties a matter in actual controversywhich the court undertakes to decide as a livingissue. Moreover, a court deals only with live issuesand steers clear of those that are academic andhypothetical. Once it has become seised of suchcontaminant, the court abstains itself from itwith or without being told. There cannot be saidto a live issue in a litigation if what is presentedto the court for a decision when decided cannotaffect the parties in any way. When an appeal is adjudged to be manifestly academic, it deserves tobe struck out. Where a question before the court isentirely academic, speculative or hypothetical, theappellate court must decline to decide the point.In the instant case, since the appellants’ appealwas patently academic, they could not engage ininviting the Supreme Court to make out vain,sterile and impracticable orders. They did not haveanything useful to urge the court. Consequently, theappeal, being manifestly academic, was struck out.[Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt.504) 281; A.-G., Fed. v. A.N.P.P. (2003) 18 NWLR(Pt. 851) 182; Atake v. Afejuku (1994) 9 NWLR (Pt.368) 379; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264)156; Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25)710; Alli v. Alensinloye (2000) 6 NWLR (Pt. 660) 177referred to.] (Pp. 262-263, paras. F-B; 271, paras.A-D; 273, paras. A-C)

5.On Duty of court where intervening event cuts at rootor foundation of case and vested rights of parties incourse of proceedings –

Where in the course of proceedings in a case or inan appeal, election matters inclusive, there is anintervening event cutting at the root or foundationof the case and the vested rights of parties, thecourt concerned will do well to terminate or endthe proceedings where it is clear that the ultimateoutcome will no longer serve the end of justice evenif the claimant/appellant wins thereby renderingsame academic. [Badejo v. F.M.E. (1996) 8 NWLR(Pt. 464) 15; Nwora v. Nwabueze (2011) 15 NWLR(Pt.1271) 467; Min., Works & Transport, AdamawaState v. Yakubu (2013) 6 NWLR (Pt.1351) 481referred to.] (P. 272, paras. B-D)

Per GARBA, J.S.C. at pages 272-273, paras. D-A:

“In the present appeal, as demonstrated in theleading judgment, the crucial issue presentedby the facts leading to the appeal was one onthe validity of the list of delegates to vote at the primary election of the 1 st appellant forselection/nomination of candidates for thebye-election of 5 th September, 2020 in theCross River North Senatorial District. Thetrial Federal High Court had ordered, in theruling of 4 th September, 2020, that the delegateselected on 7 th and 21 st March, 2020 as Wardand Local Government Area Executiveswere the valid delegates to participate inthe primary election. The primary electionwas conducted in compliance with the saidorder and was supervised/monitored by the2 nd respondent pursuant to the provisions ofsection 85(2), and of the Electoral Act,2015.

From the facts, the 1 st respondent emerged asthe winner of the primary election, nominatedas the candidate for and he participated inthe bye-election which was conducted by the2 nd respondent in line with the 1 st appellant’sconstitution and guidelines as well as theElectoral Act, respectively.

The turn of events, from the facts, rendersthe appeal academic since the subject ofthe dispute before the trial court which wasthe validity of the delegates to participatein the primary election that was statutorilyto be conducted within prescribed timebefore the bye-election, for the purpose ofselection/nomination of candidates for thebye-election, was overtaken by expiration ofthe time limited for the primary election. Inthe circumstance, the issues of the validity ofthe delegates list for the purpose of a primaryelection that could/can no longer be conductedin accordance with the Electoral Act and the2 nd respondent’s Guidelines for elections, hasbecome stale, spent and dead for all practicalpurposes.

6.On T ime for delivery of judgment of Federal HighCourt in pre-election matter –

By the provisions of section 285(10) of theConstitution of the Federal Republic of Nigeria1999 (as amended), the Federal High Court ismandatorily required to deliver its judgmentwithin 180 days from the date of filing a pre-electionmatter. (P. 261, para. B)

7.On Duty of political party to nominate and submitname of candidate for election in compliance withElectoral Act and guidelines for election –

By virtue of sections 30, 31(1) and 34 of theElectoral Act, 2010 (as amended), the IndependentNational Electoral Commission shall, not later thanninety days before the day appointed for holding ofan election under the Act, publish a notice in eachState of the Federation and the Federal CapitalTerritory stating the date of the election andappointing the place at which nomination papersare to be delivered. The notice shall be publishedin each constituency in respect of which an electionis to be held. In the case of a bye-election, theCommission shall, not later than fourteen daysbefore the date appointed for the election, publisha notice stating the date of the election. Everypolitical party shall not later than sixty days beforethe date appointed for a general election under theprovisions of the Act, submit to the Commissionin the prescribed forms the list of the candidatesthe party proposes to sponsor at the election. TheCommission shall, at least thirty days before theday of the election, publish by displaying or causingto be displayed at the relevant office or offices ofthe Commission and on the Commission’s web site,a statement of the full names, and addresses of allcandidates standing nominated. Thus, by sections30 and 31 of the Electoral Act, 2010 (as amended),a political party should complete its nominationprocess and submit the name of its candidate tothe Independent National Electoral Commission in strict compliance with the provisions of the Act andthe INEC Guidelines for the election. (Pp. 269-270,paras. G-D)

8.On Duty of court to hear and determine preliminaryobjection first where raised –

The courts have compelling obligations to hearand determine first any preliminary objectionbefore proceeding to consider and determine thesubstantive case on the merit where so doing turnsout to be necessary. (P. 256, para. F)

Nigerian Cases Referred to in the Judgment:

A.-G., Fed. v. A.N.P.P. (2003) 18 NWLR (Pt. 851) 182

Agbakoba v. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 489

Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710

Alli v. Alensinloye (2000) 6 NWLR (Pt. 660) 177

Anyanwu v. Eze (2020) 2 NWLR (Pt. 1708) 379

Ardo v. I.N.E.C. (2017) 13 NWLR (Pt. 1583) 450

Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379

Badejo v. F.M.E. (1996) 8 NWLR (Pt. 464) 15

Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47

C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493

Gov., Kaduna v. Dada (1986) 4 NWLR (Pt. 38) 687

Ikuforiji v. F.R.N. (2018) 6 NWLR (Pt. 1614) 142

Julius Berger Ltd. v. Femi (1993) 5 NWLR (Pt.295) 612

K.R.K. Holdings (Nig.) Ltd. v. F.B.N. Plc (2017) 3 NWLR (Pt.1552) 326

Min., Works & Transport, Adamawa State v. Yakubu (2013) 6NWLR (Pt. 1351) 481

Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) 139

Nkwocha v. Gov., Anambra State (1984) 1 SCNLR 634

Nwobosi v. A.C.B. (1995) 6 NWLR (Pt. 404) 658

Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467

Odedo v. I.N.E.C. (2008) 17 NWLR (Pt. 1117) 554

Odom v. P.D.P. (2015) 6 NWLR (Pt. 1456) 527

Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt. 504) 281

Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530

Olaniyi v. Aroyehum (1991) 5 NWLR (Pt. 194) 652

Oyeneye v. Odugbesan (1972) 4 SC 244

P.D.P. v. Degi-Eremienyo (2021) 9 NWLR (Pt. 1781) 274

Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346

Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156

U.B.N. Plc v. Edionseri (1988) 2 NWLR (Pt. 74) 93

Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999 (asamended), S. 285(10)

Electoral Act, 2015 (as amended), Ss. 30(1)(a)(b), 31(1), 34,85(1) and 87(1)(c)(i), (7), 127(3)

Supreme Court Election Appeal Practice Direction, 2011,Para. 6

Appeal:

This was an appeal against the decision of the Court of Appealdismissing the appeal against the judgment of the Federal HighCourt granting the 1st respondent’s claim. The Supreme Court, in aunanimous decision, struck out the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal:.Mary UkaegoPeter-Odili, J.S.C. (Presided); Ejembi Eko, J.S.C.;Mohammed Lawal Garba, J.S.C.; Samuel ChukwudumebiOseji, J.S.C.; Tijjani Abubakar, J.S.C. (Read the LeadingJudgment)

Appeal No.: SC/CV/838/2020

Date of Judgment: Wednesday, 6th January 2021

Names of Counsel: Chief Wole Olanipekun, SAN (withhim, Bola Olotu, Esq.; Chief Emmanuel Moses Enoidem,Esq.; Adedamola Fanokun, Esq. and Akintola Makinde,Esq.) – for the Appellants

Chief Ifedayo A. Adedipe, SAN (with him, C. S. Njoka,Esq.) – for the 1 st Respondent

Abdulaziz Sani, Esq. – for the 2 nd Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Port Harcourt

Names of Ju stices that sat on the appeal: Isaiah OlufemiAkeju, J.C.A. (Presided); Cordelia Ifeoma Jombo-Ofo,J.C.A.; Abubakar Muazu Lamido, J.C.A..

Appeal No.: CA/PH/356/2020

Date of Judgment: Monday, 2nd November 2020

Names of Counsel: Bode Olanipekun, SAN (with him,Akintola Makinde, Esq and Chinedu Nworgu, Esq) – forthe Appellant

Chief I.A. Adedipe, SAN (with him, O. Atogba, Esq;P. Igba Ujeme, Esq and T. Apansile, Esq) – for the 1 stRespondent

High Court:

Name of the High Court: Federal High Court, PortHarcourt

Name of the Judge:.Sani, J.

Suit No.: FHC/PH/CS/125/2020

Date of Judgment: Friday, 4th September 2020

Names of Counsel: Chief I.A. Adedipe, SAN (with him,A. Adedipe, Esq and P. Igba Ujeme, Esq) – for the Plaintiff

Emmanuel Enoidem, Esq (with him, Chuks Uguru, Esq)- for the 1 st & 2 nd Defendants

Abdulaziz Sani (with him, M.F. Ano, Esq) – for the 3rdDefendant

Counsel:

Chief Wole Olanipekun, SAN (with him, Bola Olotu, Esq.;Chief Emmanuel Moses Enoidem, Esq.; Adedamola Fanokun,Esq. and Akintola Makinde, Esq.) – for the Appellants

Chief Ifedayo A. Adedipe, SAN (with him, C. S. Njoka, Esq.)- for the 1 st Respondent

Abdulaziz Sani, Esq. – for the 2 nd Respondent

ABUBAKAR, J.S.C. (Delivering the Leading Judgment):This appeal stems from the decision of the Court of Appeal PortHarcourt Division, delivered on the 2nd day of November, 2020affirming the decision of the trial Federal High Court sitting in PortHarcourt delivered on the 4th day of September, 2020. The factsgiving rise to the appeal are that, the elected Senator representing Cross River State North Senatorial District died in office, the eventof his death therefore created vacancy in the Senate. The secondrespondent, Independent National Electoral Commission issued outa notice on the 11th day of August, 2020 that bye-elections would beconducted to fill the existing vacancy, the bye-election was slatedfor 31st October, 2020. The 1st appellant accordingly requested the2nd respondent to monitor the primary elections.

Before the primary elections were conducted, the 1st respondentin this appeal apparently perceived threat to his prospects ofparticipating in the bye-election, he therefore through counselcommenced an action at the Federal High Court by originatingsummons on the 24 day of August, 2020, and submitted threequestions for determination by the trial court, the questions are:

1.Whether upon proper construction and interpretationof the provisions of sections 85(1) and 87 (c)(i)and 87 of the Electoral Act, 2010 (as amended),the defendant can alter, modify, amend, exclude orsubstitute the list of party members who emergedas ward and Local Government Area executives ofthe 1st defendant who emerged as ward and LocalGovernment Area executives of the 1st defendant onthe 7th and 21st March, 2020 pursuant to the electionsduly conducted by the 1st defendant and monitored bythe 3rd defendant.

2.Whether by the provisions of article 15(2) and 18 ofthe 1st defendants Constitution, the 1st defendant canalter, modify, amend, exclude or substitute the listof party members who emerged as ward and LocalGovernment Area executives of the 1st defendant onthe 7th and 21st March, 2020 pursuant to the electionsduly conducted by the 1st defendant and monitored bythe 3rd defendant.

3.Whether by the provision of section 87 of theElectoral Act, 2010 (as amended) and Article 59(2)(c)of the 1st defendants Constitution, the 1st defendant canconduct the primaries for its senatorial candidate inany other place or venue different from the senatorialConstituency Headquarters as prescribed by itsConstitution.

Upon the determination of the questions set out herein, the 1strespondent then sought for the following reliefs:
A declaration that the 1st defendant is bound to utilizethe list of the party members who emerged as wardand Local Government Area Executives of the 1stdefendant on the 7th and 21st March 2020, same havingbeen authenticated by the 1st defendant and certifiedby the 3rd defendant, for the purpose of selectingthe senatorial candidate of the 1st defendant for thesenatorial bye election in Cross River North Senatoriala.District.

An Order of this honourable court restraining the1st and 2nd defendants either by themselves or actingthrough their organs, agents, privies from carryingout any change, modification, exclusion, substitutionor however described by them, to the list of partymembers who emerged as ward and Local GovernmentArea executives of the 1st defendant on the 7th and 21stMarch, 2020 same having been authenticated by the1st defendant and certified by the 1st defendant forthe senatorial candidate of the 1st defendant for thesenatorial bye election in Cross River North Senatorialb.District.

An order of this honourable court restraining the 3rddefendant from giving effect to any purported change;modification; exclusion, substitution, or howsoeverdescribed by the 1st defendant to the list of partymembers who emerged as ward and Local GovernmentAreas executives of the 1st defendant on the 7th and 21stMarch, 2020 same having been authenticated by the1st defendant and certified by the 3rd defendant for thepurpose of selecting the senatorial candidate of the 1stdefendant for cenatorial candidate of the 1st defendantfor the senatorial bye election in Cross River Northc.Senatorial District.

An order of this honourable court directing the 1stdefendant to conduct the primary elections for thepurpose of selecting the senatorial candidate of the 1stdefendant for the senatorial bye in Cross River NorthSenatorial District for 5th September 2020 or anyother date, at the senatorial Headquarters in Ogoja inaccordance with the provisions of the 1st defendantsd.Constitution.

And for such other order this honourable court maye.deem fit to make in the circumstance of this case.

The case of the 1st respondent at the trial court was that afaction of the 1st appellant, led by the 2nd appellant circulatedunapproved list of delegates elected on the 7th and 21st March, 2020for the purpose of conducting the primary elections fixed for 5thSeptember, 2020, at the conclusion of hearing, the trial FederalHigh Court found in favour of the 1st respondent, and ordered thathis name be restored on the list, he was eventually restored on thelist by the 1st appellant in compliance with the order of the trialcourt. The appellants became nettled by this decision and made forthe Court of Appeal.

The appellants therefore filed an appeal at the Court ofAppeal. The Court of Appeal Port Harcourt Division affirmedthe decision of the trial Federal High Court. Appellants thereforefinally appealed to this court on the 4th day of November, 2020, theinitial notice of appeal containing four grounds is at pages 2897-2859 of the records of appeal Vol. IV. The appellants filed anothernotice of appeal on the 9th day of November, 2020 containing tengrounds of appeal. Learned senior counsel Chief Olanipekun, SANfiled brief of argument on behalf of the appellants on the 13th dayof November, 2020 and nominated the following three issues fordetermination:

Was the lower court correct when it affirmed thedecision of the trial court in relation to the 1strespondent’s disqualification by the 1st appellant’si.Screening Committee. (Grounds 4, 9 and 10)

ii. Did the claim of the 1st respondent vide the originatingsummons filed on 24/8/2020 (leading to the judgmentof the trial court and affirmed by the lower court) vestjurisdiction on the court(s). (Grounds 1, 3, 5, 6, 7 and8)

iii. Whether the claim of the 1st respondent herein in theoriginating summons filed on the 24/08/2020 was/isstatute barred, considering the date of the filing of theclaim vis-à-vis exhibit JAJ10. (Ground 2)

Learned senior counsel for the appellants also filed repliesto both the 1st and 2nd respondents on the 26th day of November,2020 wherein counsel reacted to the 1st respondents preliminaryobjection.

The 1st respondent through learned senior counsel Adedipe,SAN filed the 1st respondents brief of argument on the 29th day ofNovember 2020. In the brief of argument, counsel raised preliminaryobjection, the objection is premised on two major grounds, dealingwith failure to obtain leave of court before filing the appeal, and theappellants appeal being academic. At the hearing of this appeal, thelearned counsel for the 1st respondent withdrew the first part of theobjection dealing with the issue of leave, and concentrated on thesecond part of the objection contending that appellants appeal isacademic.

In the brief of argument filed by learned senior counsel for the1st respondent, counsel adopted the issues for determination craftedby the appellants.

The second respondent through learned counsel, AbdulazizSani filed brief of argument on 24/11/2020, and nominated thefollowing three issues for determination:

Whether the lower court was right in upholding thedecision of the trial court that the case leading to theinstant appeal was not statute barred (Culled froma.grounds 1, 2, and 3 of the notice of appeal).

Whether the lower court was right when it held thatthe trial court correctly assumed jurisdiction andgranted the reliefs sought by the 1st respondent as perthe 1st respondents originating summons. (Culled fromb.grounds 4, 5, and 6 of the notice of appeal).

Whether the lower court was right when it held that the1st respondent had the requisite locus standi and actedtimeously in instituting action against a perceivedinfraction of his right. (Culled from grounds 7 and 8 ofc.the notice of appeal).

I must at this stage mention that, at the hearing of this appeal,the appellants through counsel sought to strike out 1st and 2ndrespondents’ briefs of argument. Learned senior counsel for theappellants, filed a motion on notice on the 26th day of November2020 pursuant to paragraph 6 of the Supreme Court Election AppealPractice Direction, 2011 and under the inherent jurisdiction of thisCourt praying for:

1.An order striking out the 1st respondents brief datedand filed on 20th November, 2020.

2.An Order striking out the 2nd respondents brief dated20th November, 2020 but filed on the 24th November,2020.

In brief, the grounds for the application are that the briefsof the respondents were filed outside the time limited by thePractice Direction being pre-election qua election related appeal,the proceedings do not accommodate the filing of processes outof time and do not admit of application for extension of time to doso. Appellants filed 6 paragraphs affidavit in support and writtenaddress.

The first respondent filed counter affidavit and deposed atparagraph 4 that there is no rule of this court that limits the filingof 1st respondents brief to 5 days. Learned senior counsel for the 1strespondent also filed written address on the 1st day of December,2020 and referred to the preamble to the Practice Directionrestricting application of the Direction to Election Appeals.

The 2nd respondent filed 5-paragraph counter-affidavit, andwritten address prepared and filed by learned counsel, AbdulazizSani whose submissions are substantially in accord with thesubmissions of learned senior counsel for the 1st respondent. Iconsidered the application, the affidavit in support, the counteraffidavits and written addresses of the contending parties, I am ofthe view that the application is frivolous and lacking in merit, ittherefore deserves to be dismissed, it is so dismissed.

On the 1st respondent’s preliminary objection, the law is wellsettled on seemingly endless judicial decisions that the courtshave compelling obligations to hear and determine first, anypreliminary objection before proceeding to consider and determinethe substantive case on the merit where so doing turns out to benecessary. I will now proceed to consider and determine the 1strespondent’s preliminary objection.

1 st Respondents Preliminary Objection

As I stated earlier, counsel withdrew the first part of hispreliminary objection, and argued the second part dealing withthe appellants appeal being academic. I will take the submissionsof counsel on this point now. Counsel said the appeal is lackingin utilitarian value, he submitted that the reliefs sought by the 1strespondent were aimed at ensuring that the approved list of delegatesfor the 1st appellants primary election fixed for 5th September, 2020

was used for the purpose of conducting the primary elections.Counsel said following the order of the trial court granting thereliefs, the approved list of delegates was used to conduct theprimary elections, and that the appellant did not challenge thedecision of the trial court granting the relief but instead challengedthe consequential order reversing the disqualification of the 1strespondent.

Learned counsel therefore said, this challenge to the order ofthe court at this time is of no utilitarian value because the electionsof 5th September, 2020 had since been conducted and a winner wasdeclared. Learned counsel said the 1st respondent whose grouse wasthat he was disqualified obtained respite from the order of the court,his disqualification was reversed and he fully participated in theelections.

Learned counsel therefore said for the reasons set out, there isnothing left, the appellants appeal has become academic since anydecision given may not have any practical utilitarian value, counselsaid even if the appellants obtain Judgment, their success will serveno useful purpose, to support his submissions on this point, counselrelied on the decisions of this court in C.P.C. v. I.N.E.C. (2011)LPELR-82579(SC) Pg. 78-79, G-E; (2011) 18 NWLR (Pt. 1279)493; Ikuforiji v. F.R.N. (2018) LPELR-43884(SC); (2018) 6 NWLR(Pt. 1614) 142; Odom & ors v. PDP & ors (2015) LPELR-24351(SC) 56 Pg. 56 F-G; (2015) 6 NWLR (Pt. 1456) 527, and Ugba& anor v. Suswam & ors (2014) LPELR-22882 (SC) 64-65 C-B;(2014) 14 NWLR (Pt. 1427) 264. Learned counsel then urged thatthis appeal being an academic exercise be struck out.

Reacting to the preliminary objection, counsel for the appellantsaid there is no evidence from the records that the said electionswere in fact conducted on the 5th day of September, 2020, he alsosubmitted that the delegates list referred to by counsel for the 1strespondent was not exhibited, counsel said from the records ofthe court, the issue of respondents victory at the election remainscontentious. Counsel also relied on the decision in P.D.P. & 2 ors v.Biobarakuma Degi-Eremienyo & 3 ors 2020 LPELR-49734 (SC);(2021) 9 N WLR (Pt. 1781) 274 to submit that this court went aheadto disqualify a candidate even after elections had been concludedand results declared by INEC, counsel also relied on Anyanwuv. Eze (2020) 2 NWLR (Pt. 1708) 379 at 396 in further support of the submission that even where elections have been held andconcluded, the matter cannot be held to be an academic exercise.

Appellants contended that the appeal was filed withintime, it cannot therefore be held to be academic, counsel furthersubmitted that the issues in this appeal are purely jurisdictional, andjurisdictional issues cannot become academic, he urged this courtto so hold. Submitting on the challenge to consequential orders ofthe trial court reversing the disqualification of the 1st respondentby the appellant instead of the reliefs sought, counsel said thenotice of appeal and the brief of the appellants show clearly that theappellants challenged the reliefs sought. Counsel urged this court todismiss the preliminary objection.

Resolution of Preliminary Objection.

The issue central to the determination of the 1st respondent’spreliminary objection is whether appellants appeal is academic ornot. A suit becomes academic where it appears theoretical, makesempty sound and lacks practical utilitarian value to the plaintiffeven if judgment is given in his favour. See: Plateau State v. A.-G., Federation (2006) 3 NWLR (Pt. 967) 346 & Odedo v. I.N.E.C.(2008) 17 NWLR (Pt. 1117) 554.

Again, courts engage in resolving live issues, once a suitno longer has live issues for determination, such a suit becomesacademic, and the courts must on no account invest precious judicial.time toiling and slaving to resolve such hollow, insignificant,worthless and academic issues.

Just to refresh our minds on the issue at stake, the appellantstook out originating summons at the trial court wherein theysubmitted the following questions for determination:

1.Whether upon proper construction and interpretationof the provisions of sections 85(1)(2) and 87(c)(i)and 87(7) of the Electoral Act, 2010 (as amended),the defendant can alter, modify, amend, exclude orsubstitute the list of party members who emerged asward and Local Government Area Executives of the 1stdefendant who emerged as ward and local GovernmentArea executives of the 1st defendant on the 7th and 21stMarch, 2020 pursuant to the elections duly conductedby the 1st defendant and monitored by the 3rd defendant.

2.Whether by the provisions of article 15(2) and 18 of the 1st defendants Constitution the 1st defendant canalter, modify, amend, exclude or substitute the listof party members who emerged as ward and LocalGovernment Area Executives of the 1st defendant onthe 7th and 21st March, 2020 pursuant to the electionsduly conducted by the 1st defendant and monitored bythe 3rd defendant.

3.Whether by the provision of section 87(4) of theElectoral Act, 2010 (as amended and Article 59(2)(c)of the 1st defendants Constitution, the 1st defendant canconduct the primaries for its senatorial candidate inany other place or venue different from the senatorialconstituency headquarters as prescribed by itsConstitution.

Upon the determination of the questions set out herein, the 1strespondent then sought for the following reliefs:

A declaration that the 1st defendant is bound to utilizethe list of the party members who emerged as ward andLocal Government Area Executives of the 1st defendanton the 7th and 21st March, 2020, same having beenauthenticated by the 1st defendant and certified by the3rd defendant, for the purpose of selecting the senatorialcandidate of the 1st defendant for the senatorial Byea.election in Cross River North Senatorial District.

An Order of this honourable court restraining the1st and 2nd defendants either by themselves or actingthrough their organs, agents, privies from carryingout any change, modification, exclusion, substitutionor however described by them, to the list of partymembers who emerged as ward and Local GovernmentArea executives of the 1st defendant on the 7th and 21stMarch, 2020 same having been authenticated by the1st defendant and certified by the 1st defendant forthe Senatorial candidate of the 1st defendant for theSenatorial Bye election in Cross River North Senatorialb.District.

An order of this honourable court restraining the 3rddefendant from giving effect to any purported change,c.modification, exclusion, substitution, or howsoever described by the 1st defendant to the list of partymembers who emerged as ward and Local GovernmentAreas executives of the 1st defendant on the 7th and 21stMarch, 2020 same having been authenticated by the1st defendant and certified by the 3rd defendant for thepurpose of selecting the Senatorial candidate of the 1stdefendant for senatorial candidate of the 1st defendantfor the senatorial bye election in Cross River NorthSenatorial District.

An order of this honourable court directing the 1stdefendant to conduct the primary elections for thepurpose of selecting the senatorial candidate of the 1stdefendant for the senatorial Bye in Cross River NorthSenatorial District for 5th September, 2020 or anyother date, at the senatorial Headquarters in Ogoja inaccordance with the provisions of the 1st defendantsd.Constitution.

And for such other order this honourable court maye.deem fit to make in the circumstance of this case.

The 1st respondent sought for a declaration that the 1st defendantis bound to utilize the list of the party members who emerged asward and Local Government Area Executives of the 1st defendanton the 7th and 21st March, 2020, same having been authenticated bythe 1st defendant and certified by the 3 defendant, for the purposeof selecting the senatorial candidate of the 1st defendant for thesenatorial Bye-election in Cross River North Senatorial District. Anorder restraining the appellants from altering the list, 3rd defendantnot to give effect to any change, to conduct the primary electionsin Ogoja in accordance with the provisions of the Constitution ofthe 1st defendant. The trial court granted all the reliefs sought, the1st appellant accordingly complied with the order of the trial court,relied on the authentic list and conducted the primary electionsaccordingly. The entire event started and ended. The event becamecompleted, closed and sealed.

Learned senior counsel for the appellants relied heavily onthe decision of this court in Anyanwu v. Eze (2020) 2 NWLR (Pt.1708) 379, and submitted that the correct position of the law is thatpre-election well within the relevant statutes and time prescribedremains a live issue in spite of the general elections that had been concluded, and that this appeal is not academic as contended by the1st respondent.

The decision of this court in Anyanwu (supra) heavily relied onby learned senior counsel for the appellants, is completely distinctfrom the instant appeal because in that case, the facts are that apre-election matter was filed at the Federal High Court Owerri onthe 24th day of October, 2018. By the provisions of section 285(10)of the Constitution of the Federal Republic of Nigeria 1999 (asamended), the Federal High Court was mandatorily required todeliver its judgment within 180 days from the date of filing the suit.The decision of the lower court vies delivered on the 4th day of May,2019. At the time the judgment of the lower court was delivered,the trial court no longer had jurisdiction to hear and determine thecase since the constitutional period available to hear and determinepre-election matters had elapsed. From the date the petition wasfiled and the date the lower court delivered its judgment was 192days. This therefore clearly snows that the order of retrial made bythe lower court was made in error since the trial court no longer hadjurisdiction to hear and determine the matter.

The instant appeal has to do with skirmishes and politicalparty squabbling over authenticity of list of delegates and whetherthe 1st defendant Peoples Democratic Party had the power to tinkerwith the authentic list in conducting its party primaries.

The trial and lower courts made a concurrent finding directingthat the authentic list be used and primary elections be conductedto select candidate for the bye-election, the primary election wasconducted and candidate for the bye-election emerged and the bye-election was accordingly conducted. The 1st appellant compliedwith the order of the trial court and restored the authentic list. Iam of the view that the emphasis placed by the appellants on thedecision of this court in Anyanwu (supra) is misconceived becausethe facts and circumstances in the decision are different from thefacts and circumstances of the instant appeal.

In my humble view therefore, there is nothing left for the courtto pronounce upon, there is no live issue for the court to adjudicateupon, there is nothing on record to show that the appellants arechallenging the election of any person, their main grievance isthat the trial and lower courts did not allow them use their list ofcandidates in conducting the primary elections.

Are the appellants calling on this court to order that their listof delegates be used after the time limited for conducting the bye-election had elapsed,? I think the appellants in this appeal haveclearly confronted this court with an appeal that is out and outacademic and therefore not deserving of any positive considerationwhatsoever, any decision rendered in this appeal will be of nouse to the appellants because the authentic list as directed by thecourts, was used and the primary and bye-elections have since beenconcluded. In Anyanwu v. Eze (supra) my learned brother, Sanusi,JSC, (as he then was) held as follows:

In Plateau State v. A.-G., Federation (2006) 3 NWLR (Pt.967) 346; 137 LRCN 1400, this court stated as follows:

“A suit is academic where it is thereby theoretical,makes empty sound and of no practical utilitarianvalue to the plaintiffs even if judgment is given in hisfavour. A suit is academic if it is not related to practicalsituation of human nature and humanity.” See Odedov. INEC (2008) 17 NWLR (Pt. 1117) 554.

Once a suit no longer has live issues for determination, sucha suit is academic and a court should on no account spend judicialtime, or engage in academic exercise. Courts are to determinelive issues. See: Oyeneye v. Odugbesan (1972) 4 SC 244; Bakarev. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47; Okulate v. Awosanya(2000) 2 NWLR (Pt. 646) 530; Nkwocha v. Gov. of Anambra State(1984) 1 SCNLR 634.

I queue behind this decision and hold the view that appellantsappeal is academic. Since the appeal is patently academic, appellantsmust not engage in inviting this court to dish out vain, sterile, andimpracticable orders. Appellants obviously have nothing useful tourge this court, this appeal having been adjudged to be manifestlyacademic therefore deserves to be struck out. See: Ogbonna v.President, F.R.N. (1997) 5 NWLR (Pt. 504) 281, where Uwaifo,JSC (as he then was), held as follows:

“… If no purpose will be served by an action or appealor any issue raised in it other than its mere academicinterest the court will not entertain it … The Law is thatit is an essential quality of a suit or an appeal fit to bedisposed of by a court that there should exist betweenthe parties a matter in actual controversy which thecourt undertakes to decide as a living issue. Moreover, a court deals only with live issues and steers clear ofthose that are academic. But there cannot be said to alive issue in a litigation if what is presented to the courtfor a decision, when decided cannot affect the partiesin any way. See also A.-G., Fed. v. A.N.P.P. (2003) 12SC (Pt. II) 146 @ 170; (2003) 18 NWLR (Pt. 851) 182@ 215 …”

In conclusion therefore, I must add that, even without the1st and 2nd respondents briefs of argument, this court is bound toconsider the appeal on the appellants brief to determine whetherit will succeed or fail. This court is therefore entitled to adjudgethe appellant’s appeal academic even if the appeal is heard anddetermined on the appellants brief alone.

On the whole therefore, the 1st respondents preliminaryobjection is meritorious and is accordingly sustained, the appellant’sappeal having been adjudged academic is therefore struck out.

Parties in this appeal shall bear their respective costs.

PETER-ODILI, J.S.C.: I agree with the judgment just deliveredby my learned brother, Tijjani Abubakar, JSC and to register thesupport I have in the reasonings from which the decision emanated,I shall make some comments.

This is an appeal against the decision of the Court of AppealPort Harcourt Division or court below or lower court: I.O. Akeju, C.I.Jombo-Ofo and A.M. Lamido, JJCA delivered on 2nd November,2020. The court below had dismissed the appeal and affirmed thejudgment of the Federal High Court, Port Harcourt Division.

Background Facts

The case of the 1st respondent is contained at pages 3 – 774of the record of appeal. Succinctly put, the case presented by the1st respondent at the trial court was that, pursuant to a timetablereleased by the 2nd respondent for the conduct of the Cross RiversNorth Senatorial District Bye-election in Cross Rivers State, the 1stappellant through the 2nd appellant fixed the conduct of its primaryelection to nominate its candidate for the said office for the 5th ofSeptember, 2020, and commenced the sale of expression of interestand nomination forms for the said office. Consequently, the 1strespondent indicated his interest by purchasing the nomination form to enable him participated as a candidate in the said Bye-election.

Meanwhile, sequel to the announcement by the 2nd respondentwith respect to the conduct of the bye-election, the 1st appellanthad conducted congresses for the election of executives into theWards and Local Government Areas of the State on the 7th and 21stof March, 2020 which said election was duly monitored by the2nd respondent in accordance with the provisions of the ElectoralAct. The names of the party members who emerged as Ward andLocal Government Areas executive of the 1st appellant from thesaid congresses were approved/ratified by the 1st appellant and alsocertified by the 2nd respondent (Exhibits JAJ at pages 116 – 320 ofthe record).

In line with the Constitution of the 1st appellant, thesemembers who emerged from the said Ward and Local Governmentcongresses were expected to serve as statutory delegates of the 1stappellant in electing candidates for the National and State HouseAssembly election through their tenure. which also includes the 1stappellant’s primary election fixed for 5th September, 2020, to electits candidate for the forthcoming Bye election of the Cross RiversNorth Senatorial District.

However, a faction of the 1st appellant in Cross River Statecirculated an unapproved list of elected delegates under the purportedname and signature of the 2nd appellant (Exhibit JAJ 10 at pages321 – 538 of the record) in order to substitute and/ or exclude thelawfully elected executives of the Wards and Local Government’sdelegates who had emerged through the congresses of 7th and 21stof March, 2020 and who were the authentic statutory delegatesfor the 1st appellant’s primary election slated for and which tookplace on the 5th of September, 2020. The effect of such substitutionwould have been that the process of the primary election of 5th ofSeptember, 2020, for the election of the 1st respondent and othercandidates of the appellant, would have been compromised by theinjection of unapproved delegates by a faction of the 1st appellant.Contrary to the narrative expressed by the appellants in their brief,these facts were necessary as they form the foundation of anyindirect primary election by the 1st appellant’s Constitution and theElectoral Act, 2010 (as amended).

This unapproved list of delegates was being circulated by the1st appellant for the purpose of the primary election of 5th September,

2020, despite the conveyance of the ratified/approved list of thelawfully elected executives of the Wards and Local Governmentareas to the State Party Chairman of the 1st appellant in CrossRivers State by the 2nd appellant and the subsequent disclaimer ofthe list in circulation also by the 2nd appellant and it was endorsedand forwarded on behalf of the 1st appellant by the 2nd appellant.

On the basis of this development, the 1st respondent who hadpurchased his nomination form to participate in the primary electionof the 1st appellant instituted an action for the purpose of ensuringthat the 1st appellant was restrained from allowing any other listapart from the list of members who are eligible to participate asdelegate in the 5th September, 2020 primary election, to be used forthe said election.

The lower court granted all the reliefs sought by the 1strespondent and also granted a consequential relief arising fromthe conduct of the 1st appellant who had purportedly disqualifiedthe 1st respondent from participating in the primary election in thecourse of the proceedings at the trial court, contrary to an existingorder of the trial court for parties to maintain status quo pendingthe determination of the suit. The contention by the appellantsthat the consequential relief granted was outside the question fordetermination and reliefs sought at the trial court.

On the 15th December, 2020 date of hearing, learned senioradvocate for the appellants adopted the brief of argument filed on13/11/2020 and reply brief to 1st respondent filed on 26/11/2020and reply brief to 2nd respondent’s brief filed on 26/11/2020. Heraised three issues for determination of the appeal, viz:

1.Was the lower court correct when it affirmed thedecision of the trial court in relation to the 1strespondent’s disqualification by the 1st appellant’sscreening committee. (Grounds 4, 9, and 10)

2.Did the claim of the 1st respondent vide the originatingsummons filed on 24/8/2020 (leading to the judgmentof the trial court and affirmed by the lower court) vestjurisdiction on the courts. (Grounds 1, 3, 5, 6, 7, and 8)

3.Whether the claim of the 1st respondent herein inthe originating summons filed on 24/08/2020 was/isstatute barred considering the date of the filing of theclaim vis-à-vis exhibit JAJ 10 (Ground 2).

ChiefI.A.AdedipeSANforthe1strespondentadoptedthebriefofargumentfiledon20/11/2020inwhichheraisedandarguedapreliminaryobjection.

ChiefAdedipeadoptedtheissuesnominatedbytheappellants.

Learnedcounselforthe2ndrespondent,AbdullazizSaniEsqadoptedthebriefofargumentfiledon24/11/2020andraisedthreeissuesfordeterminationasfollows:-

(i)Whetherthelowercourtwasrightinupholdingthedecisionofthetrialcourtthatthecaseleadingtotheinstantappealwasnotstatutebarred.(culledfromgrounds1,2and3ofthenoticeofappeal)

(ii)Whetherthelowercourtwasrightwhenitheldthatthetrialcourtcorrectlyassumedjurisdictionandgrantedthereliefssoughtbythe1strespondent’sasperthe1strespondent’soriginatingsummons.(Culledfromgrounds4,5and6ofthenoticeofappeal)

(iii)Whetherthelowercourtwasrightwhenitheldthatthe1strespondenthadtherequisitelocusstandiandactedtimeouslyininstitutingactionagainstaperceivedinfractionofhisrights.(Culledfromgrounds7and8ofthenoticeofappeal).

Ishallfirsttacklethepreliminaryobjectionraisedandarguedbythe1strespondent.

PreliminaryObjection

The1strespondentcontendedthatthisappealservesnoutilitarianvalueconsideringthattheprimaryelectionofthe1stappellanthadbeenheldandthegeneralelectionalsoconcluded.

Learnedsenioradvocatefortheappellantsrejectedthatviewofthe1strespondentsincepre-electionmattersremainjusticiableafterthegeneralelection.HecitedSC.1/2020-P.D.P.&2OrsvBiobarakumaDegi-Eremienyo&3Orsdeliveredan13thFebruary,2020andnowreportedin(2020)LPELR-49734(SC);(2021)9NWLR(Pt.1781)274;Anyanwuv.Eze(2020)2NWLR(Pt.1708)379at396.

Inanswertothequestiononthestatusoftheappealbeinganacademicdiscourse,weneedtogobackintimetoseeitincontext.

Thereliefs atthetrialcourtwhichformedthesubstratumofthecaseinhandwouldhelpinthedeterminationofthatquestionraisedabove,astotheutilityortheuseoftheoutcomeofthisappeal.Seethereliefsatthecourtoffirstinstance,viz:-

A declaration that the 1st Defendant is bound toutilise the list of the party members who emergedas ward and Local Government Areas Executives ofthe 1st defendant on the 7th and 21st of March, 2020,same having been authenticated by the 1st defendantand certified by the 3rd defendant, for the purpose ofselecting the senatorial candidate of the 1st defendantfor the senatorial bye election in Cross River NorthSenatorial District.

An order of this honourable court restraining the 1stand 2nd defendants either by themselves or actingthrough any of their organs, agents, or privies, fromcarrying out any change, modification, exclusion,substitution or howsoever described by them, to the listof the party members who emerged as ward and LocalGovernment Areas Executives of the 1st defendantand certified by the 3rd defendant, for the purpose ofselecting the senatorial candidate of the 1st defendantfor the senatorial bye-election in Cross River North(b)Senatorial District.

An order of this honourable court restraining the 3rdDefendant from giving effect to any purported change,modification, exclusion, substitution or howsoeverdescribed by it or the 1st defendant, to the list of theparty members who emerged as ward and LocalGovernment Areas Executives of the 1st defendanton the 7th and 21st of March, 2020, same having beenauthenticated by the 1st defendant certified by the 3rddefendant, for the purpose of selecting the senatorialcandidate of the 1st defendant for the Senatorial Bye-(c)election in Cross River North Senatorial District.

An order of this honourable court directing the 1stdefendant to conduct the primary election for thepurpose of selecting the senatorial candidate of the 1stdefendant for the senatorial bye election in Cross RiverNorth Senatorial District scheduled for 5th September,2020 or any other date, at the Senatorial headquartersin Ogoja in accordance with the provision of the 1st(d)defendant’s constitution.

I have set above the reliefs sought by the respondents asplaintiffs in the trial High Court so that whatever decision is reachedherein is not done out of context and one which cannot be related tothe claims of the plaintiffs which are really the fulcrum to where weare. I say, so because while the 1st respondent posits that this appealhas become academic, the 1st respondent having participated in,and won the said primary election and the general election interparties having been concluded.

Learned senior counsel for the appellants disagrees and citedthe case of P.D.P. & 2 Ors v. Biobaraku Degi-Erenienyo (2020)LPELR – 49734 (SC); (2021) 9 NWLR (Pt. 1708) 379.

The position of the appellants and the case cited aredistinguishable. The reason is that in the P.D.P. v. BiobarakuDegi-Eremienyo (supra), the plaintiffs sought the disqualificationof the respondent as not qualified to context the general electionand that the gubernatorial ticket was invalid on account thereby.The opposite situation herein has to do with the 1st plaintiff now1st respondent crying that his political party was denying him hisright and so asked for reliefs that would stop his name not to beremoved from the list of contestants at the primary election, as hehad then been properly cleared by the same party and his name inthe authentic list. The two courts below agreed with his plea andgranted the said reliefs. In fact the trial court had granted an interimorder restraining the Party from keeping him off the primary processwhich they disobeyed until the Court below affirmed that decision.

It is for the above portrayed situation in the light of the claimsof the plaintiff, that proceeding with this appeal and a possibleoutcome or decision would serve no purpose. The matter was filedat the Federal High Court Owerri on 24th October, 2018. By section285(10) of the Constitution, the Federal High Court had 180 daysfrom date of filing the suit to delivery of judgment. The decision ofthe lower court was delivered on the 4th May, 2019. At the time thejudgment of the lower court was delivered, the trial court had nojurisdiction as from the date of petition to the delivery of judgmentit was 192 days so the order of retrial made by the lower court wasin error the trial court having no jurisdiction to hear and determinethe matter.

I have no problem with the argument that this court is seised ofjurisdiction to entertain a pre-election matter even after the primaryelection or the general election had been contested lost and won, so long as the action is within the constitutionally prescribed periodfor such adjudication. However where as in the case at hand thepossible orders sequel to the claims of the plaintiff would becomeacademic, then the court has no business delving into the appealand it is well advised to put a stop to it and not temporise on whatto do. See Anyanwu v. Eze (2020) 2 NWLR (Pt. 1708) 379 at 396;C.P.C. v. I.N.E.C. (2011) LPELR-8257 (SC); (2011) 18 NWLR(Pt. 1279) 493; Ikuforiji v. F.R.N. (2018) LPELR-4388 (SC) page11; (2018) 6 NWLR (Pt. 1614) 142; Odom & Ors v. P.D.P. & Ors(2015) LPELR-24351 (SC) 56; (2015) 6 NWLR (Pt. 1456) 527;Ugba & Anor v. Suswan & Ors (2014) LPELR-22 882 (SC) pages64-65; (2014) 14 NWLR (Pt. 1427) 264.

EKO, J.S.C: I will just add a few words to the judgment deliveredby my learned brother, Tijjani Abubakar, JSC. There is no doubtthat this appeal was filed in time and in compliance with the dueprocess of the law. The competence of the appeal per se is not theissue.

The issue is what practical utilitarian purpose will this appealserve? The Peoples Democratic Party (PDP) primary election toelect the PDP candidates for the by-election in Cross River – NorthSenatorial District was scheduled for 5th September, 2020. Thesaid bye-election had since been conducted, and results declared,by Independent National Electoral Commission (INEC). It wasa general election which neither the PDP nor any of the otherparticipating political parties and their respective candidates had nocontrol over. They must conduct their affairs in strict compliancewith INEC timetable and directives.

It is expected that, by dint of section 30 and 31 of the ElectoralAct, 2010 (as amended) that the PDP, like any other political party,should have completed its nomination processes and submittedthe name of its candidate to INEC in strict compliance with theprovisions of the Act and INEC Guidelines for the election. On this,I will reproduce the provisions of sections 30, 31(1) and 34 of theElectoral Act to emphasize the point; that is –

“30(1) The commission shall, not later than 90 days beforethe day, appointed for holding of an election under thisAct, publish a notice in each state of the Federationand the Federal Capital Territory –

(a)stating the date of the election; and

appointing the place at which nomination(b)papers are to be delivered.

The notice shall be published in each constituency in(2)respect of which an election is to be held.

In the case of a by-election, the Commission shall,not later than 14 days before the date appointed forthe election, publish a notice stating the date of the(3)election.

31(1) Every political party shall not later than 60 days beforethe date appointed for a general election under theprovisions of this Act, submit to the Commission inthe prescribed forms the list of the candidates the partyproposes to sponsor at the elections.

34.The Commission shall, at least 30 days before theday of the election, publish by displaying or causingto be displayed at the relevant office or offices ofthe Commission and on the Commission’s website,a statement of the full names, and addresses of allcandidates standing nominated.”

The cause of action in the suit at the Federal High Court leadingup to this appeal was whether the defendants, at the trial court,could “alter, modify, amend or substitute the list of party memberswho emerged as ward and Local Government Area Executives ofthe (PDP) on 7th and 21st March, 2020 pursuant to the electionsduly conducted by the (PDP) and monitored by the (INEC)”. Thecomplaint presented at the trial court by the 1st respondent, asthe plaintiff, was that the defendants (particularly the appellantsherein) were trying to alter the voting delegates to his disadvantage.The trial court ruled in favour of the plaintiff/1st respondent in thejudgment delivered on 4th September, 2020 and granted all thereliefs he had sought. On 2nd November, 2020 the Court of Appeal(the lower court) affirmed the decision and orders of the trial court.

There is no doubt that, in compliance with the orders of the trialcourt, the PDP conducted its primary election using the disputeddelegates list. The primary election, by virtue of section 87(1) ofthe Electoral Act, was mandatory for the PDP and its candidate toparticipate in the INEC organized bye-election, which INEC hadsince conducted and the results declared. It is now obvious that
this appeal will serve no further useful utilitarian purpose, the issuehaving become purely academic.

In the words of Bello CJN in Atake v. Afejuku (1994) 9 NWLR(Pt. 368) 379 at 402 –

If no purpose will be served by an action or appealor any issue raised in it other than its mere academicinterest, the court will not entertain it.

The existence of live issue in the matter in the actualcontroversy between the parties is what gives the suit or appeal theessential quality of its being fit to be adjudicated upon and disposed:Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156. As pointed out byNnamani, JSC in Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25)710 at 725 a law court deals only with live issues and steers clearof those that are academic and hypothetical. Once it has becomeseised of such contaminant it abstains itself from it with or withoutbeing told.

The foregoing is my own reason for agreeing with my learnedbrother, Tijjani Abubakar, JSC, that we do not entertain this appealsince it has become academic.

GARBA, J.S.C.: I have read the draft of the leading judgmentdelivered by my learned brother, Tijani Abubakar, JSC, in thisappeal and completely agree with the decision that the appeal ispurely academic in view of the peculiar facts upon which it ispredicated as succinctly set out in the leading judgment. A caseor an appeal, for the purpose of judicial adjudication by a court,is said to be academic when and where there is no and cannot besaid to be a live issue in it for consideration and determination bythe court which can materially affect the parties thereto. This maybe because of the fundamental nature of the reliefs sought or ofchanged circumstances since the litigation started such that in caseof an appeal, just as we have here, the appeal may become academicat the time it is due for hearing. A case or an appeal is academicwhen the questions or issues raised therein have, due to the specialand specific facts from which they arise, become spent such that nogenuine right or benefit would inure to or on the successful party.See Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710; Nwobosiv. A.C.B. & (1995) 6 NWLR (Pt. 404) 658; Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt. 504) 281; Ndulue v. Ibezim (2002) 12NWLR (Pt. 780) 139; A.-G., Federation v. A.N.P.P. (2003) 12 SC(Pt. II) 146; (2003) 18 NWLR (Pt. 851) 182; Odedo v. I.N.E.C.(2008) 17 NWLR (Pt. 1117) 554; Agbakoba v. I.N.E.C. (2008) 18NWLR (Pt. 1119) 489.

The law is also settled that where in the course of proceedingsin a case or in an appeal, election matters inclusive, there is anintervening event cutting at the root or foundation of the case andthe vested rights of parties, the court concerned will do well toterminate or end the proceedings where it is clear that the ultimateoutcome will no longer serve the end of justice even if the claimant/appellant wins thereby rendering same academic. See Badejov. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15;Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467; Ministry ofWorks & Transport Adamawa State v. Yakubu (2013) 6 NWLR (Pt.1351) 481.

In the present appeal, as demonstrated in the leading judgment,the crucial issue presented by the facts leading to the appeal wasone on the validity of the list of Delegates to vote at the primaryelection of the 1st appellant for selection/nomination of candidatesfor the bye-election of 5th September, 2020 in the Cross River NorthSenatorial District. The trial Federal High Court had ordered, in theruling of 4th September, 2020, that the Delegates elected on 7th and21st March, 2020 as Ward and Local Government Area Executiveswere the valid Delegates to participate in the primary election. Theprimary election was conducted in compliance with the said orderand was supervised/monitored by the 2nd respondent pursuant to theprovisions of section 85 (2), and of the Electoral Act, 2015.

From the facts, the 1st respondent emerged as the winner of theprimary election, nominated as the candidate for and he participatedin the bye-election which was conducted by the 2nd respondent inline with the 1st appellant’s Constitution and Guidelines as well asthe Electoral Act, respectively.

The turn of events, from the facts, renders the appeal academicsince the subject of the dispute before the trial court which was thevalidity of the delegates to participate in the primary election thatwas statutorily to be conducted within prescribed time before thebye-election, for the purpose of selection/nomination of candidatesfor the bye-election, was overtaken by expiration of the timelimited for the primary election. In the circumstance, the issues of the validity of the delegates list for the purpose of a primaryelection that could/can no longer be conducted in accordance withthe Electoral Act and the 2nd respondent’s Guidelines for Elections,has become stale, spent and dead for all practical purposes.

This court, in Alli v. Alensinloye (2000) LPELR – 427 (SC),(2000) 6 NWLR (Pt. 660) 177, per Iguh, JSC restated that-

“The law is firmly established that where a questionbefore the court is entirely academic, speculative orhypothetical, the appellate court in accordance withthe well-established principle of this court mustdecline to decide the point. See Nkwocha v. Governorof Anambra State (1984) 6 SC 362; (1984) 1 SCNLR634; Governor of Kaduna State v. Dada (1986) 4NWLR (Pt. 38) 687; Richard Ezeanya v. GabrielOkeke and others (1995) 4 NWLR (Pt. 388) 142.”

In the above premises, I join in upholding the objection by thelearned SAN for the 1st respondent that the appeal is now academicand adopt the consequential order striking it out.

I also order that parties should bear their respective costs ofprosecuting the appeal.

OSEJI, J.S.C.: I have had the privilege of reading in advance, thejudgment delivered by my learned brother, Tijjani Abubakar, JSCin this appeal. I entirely agree with his conclusion that this appealhas evolved to an academic exercise and ought to be struck out.The facts of the case are well detailed in the lead judgment andas such needs no further rehashing here except to state that the 1strespondent was faced with the threat of losing his chances at theimpending primaries to be conducted by his party (1st appellant) forthe bye-election into the Cross River State North Senatorial District.This was sequel to the information gathered to the effect that apartfrom the authentic delegates list already submitted to INEC anotherunapproved delegates list was said to be in circulation and meantto be used for the primaries to be conducted by the 1st appellanton 5/9/2020. The 1st respondent having purchased the nominationform for the primaries was then compelled to commence an actionat the Federal High Court by way of originating summons on the20th day of August, 2020 wherein the following three questionswere submitted for determination –

“1. Whether upon proper construction, interpretation ofthe provisions of sections 85(1) and and 87(1)and 87(7) of the Electoral Act, 2010 (as amended),the defendant can alter, modify, amend, exclude orsubstitute the list of party members who emergedas ward and local Government Area Executives ofthe 1st defendant who emerged as ward and LocalGovernment Area Executives of the 1st defendant onthe 7th and 21st March, 2020 pursuant to the electionsduly conducted by the 1st defendant and monitored bythe 3rd defendant.

2.Whether by the provisions of article 15(2) and 18 ofthe 1st defendants Constitution, the 1st defendant canalter, modify, amend, exclude or substitute the listof party members who emerged as ward and LocalGovernment Area executives of the 1st defendant onthe 7th and 21st March, 2020 pursuant to the electionsduly conducted by the 1st defendant and monitored bythe 3rd defendant.

3.Whether by the provision of section 87(4) of theElectoral Act, 2010 (as amended) and Article 59(2) ofthe 1st defendants Constitution, the 1st defendant canconduct the primaries for its senatorial candidate inany other place or venue different from the senatorialConstituency Headquarters as prescribed by itsConstitution.

The 1st respondent also sought the following four reliefs:-

A declaration that the 1st defendant is bound to utilizethe list of the party members who emerged as ward andLocal Government Area Executives of the 1st defendanton the 7th and 21st March, 2020, same having beenauthenticated by the 1st defendant and certified by the3rd defendant, for the purpose of selecting the senatorialcandidate of the 1st defendant for the Senatorial Byea.election in Cross River North Senatorial District.

An Order of this honourable court restraining the1st and 2nd defendants either by themselves or actingthrough their organs, agents, privies from carryingout any change, modification, exclusion, substitutionb.or however described by them, to the list of party members who emerged as Ward and Local GovernmentArea Executives of the 1st defendant on the 7th and21st March, 2020 same having been authenticated bythe 1st defendant and certified by the 1st defendantfor the Senatorial candidate of the 1st defendant forthe Senatorial Bye-Election in Cross River NorthSenatorial District.

An order of this honourable court restraining the 3rddefendant from giving effect to any purported change,modification, exclusion, substitution, or howsoeverdescribed by the defendant to the list of party memberswho emerged as ward and Local Government Areasexecutives of the 1st defendant on the 7th and 21stMarch, 2020 same having been authenticated by the1st defendant and certified by the 3rd defendant for thepurpose of selecting the senatorial candidate of the 1stdefendant for Senatorial candidate of the 1st defendantfor the senatorial bye election in Cross River Northc.Senatorial District.

An order of this honourable court directing the 1stdefendant to conduct the primary elections for thepurpose of selecting the Senatorial candidate of the1st defendant for the Senatorial bye-election in CrossRiver North Senatorial District for 5th September,2020 or any other dater at the Senatorial Headquartersin Ogoja in accordance with the provisions of the 1std.defendants Constitution.

And for such other order this honourable court maye.deem fit to make in the circumstance of this case.

While the action was pending in the trial court, the appealpanel under the auspices of the 1st appellant purported to disqualifythe 1st respondent from participating in the primaries in spite of allexisting order of the trial court for parties to maintain status quopending the determination of the suit.

However, at the conclusion of the trial, the learned trial Judgegranted all the reliefs sought in the originating summons and alsogranted and ancillary relief setting aside the disqualification of the1st respondent by the appeal panel of the 1st appellant on the groundthat it was an affront to the dignity of the court. On appeal to theCourt of Appeal Port Harcourt Division (lower court), the decision of the trial court was affirmed and the appeal dismissed for lackingin merit. Meanwhile the primary election, subject matter of the suitat the trial court wherein the 1st respondent sought and obtainedan order that the approved list of delegates must be used by theappellants was duly conducted on the 5th day of September 2020which is the date approved by the 2nd respondent (INEC). The bye-election into the Cross River State North Senatorial District hadalso been conducted and a winner had emerged and so declared byINEC.

The appellants herein had appealed to this court seeking thesetting aside of the judgment of the lower court which affirmed thedecision of the trial court. The main thrust of the appeal is premisedon the ancillary order of the trial court reversing the disqualificationof the 1st respondent which as earlier stated was done in defiance anddisobedience to the order of the trial court made on the 28/8/2020for the maintenance of the status quo by all the parties.

The 1st respondent raised a preliminary objection challengingthe competence of the appeal on the grounds that:-

“(a) The election fixed for 5th September, 2020 which the1st respondent sought to ensure its sanctity had beenheld and a winner declared.

The 1st respondent who was purportedly disqualifiedin the course of the proceedings at the trial courtparticipated as an aspirant in the said election giventhat the trial court reversed the decision of the 1st(b)appellant disqualifying him.”

The appellants response to the preliminary objection is containedin paragraphs 2.6 to 2.12 at pages 3 to 6 of the appellants replybrief to the 1st respondent’s brief of argument filed on 26/11/2020.Submissions of learned senior counsel on both sides of divide havebeen duly considered vis-à-vis the questions raised for determinationin the originating summons and the relief sought thereof, also notexcluding the reliefs sought in the notice of appeal.

The end result in my humble view is that this appeal willunfortunately not serve any utilitarian value. It has become spentand will only serve for academic benefits which the courts by along line of authorities have been admonished to desist from suchventures. See Ardo v. INEC & ors (2017) LPELR-41919 (SC);(2017) 13 NWLR (Pt. 1583) 450, where this court per AminaAdamu Augie, JSC noted thus:-

“An action becomes hypothetical or raises mereacademic point when there is no live matter in it to beadjudicated upon or when its determination holds nopractical or tangible value for making a pronouncementupon it, it is otherwise an exercise in futility. Whenan issue has become defunct, it does not require to beanswered … and leads to make bare legal postulationswhich the court should not indulge in, it is like thesalt that has lost its seasoning. And like the salt in thatterms, an academic issue or question does not relateto the live issues in the litigation because it is spent asit will not ensure any right or benefit on a successfulparty”.

See also Union Bank Plc v. Edionseri (1988) 2 NWLR (Pt. 74)93; Julius Berger Ltd. v. Femi (1993) 5 NWLR (Pt.295) 612; Olaniyiv. Aroyehum (1991) 5 NWLR (Pt. 194) 652; Governor of Kadunav. Dada (1986) 4 NWLR (Pt. 38) 687; Nkwocha v. Governor ofAnambra State (1984) 6 SC 362; (1984) 1 SCNLR 634.

As had always been emphasised and needs to be furtherstated for posterity, this court has no jurisdiction or competenceto determine hypothetical questions or to embark on advisory orabstract academic opinion, hence it has consistently refused todecide such questions. See Atake v. Afejuku (1994) 9 NWLR (Pt.368) 379.

It is therefore trite law that courts do not expend valuablejudicial time and energy on academic issues. See K.R.K. HoldingsNigeria Limited v. First Bank Nig Plc (2016) LPELR 41463 (SC);(2017) 3 NWLR (Pt. 1552) 326. This appeal no doubt falls withinthe realm of cases classified by this court in numerous decisionsto be academic, hypothetical and lacking utilitarian value in thatany pronouncement made thereon would not confer any rights orbenefit to the appellant.

For this and the fuller reasons detailed in the lead judgment,I also uphold the preliminary objection. This appeal is accordinglystruck out.

I also abide by the order as to costs.

Appeal struck out.

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