CHARLES CHINWENDU ODEDO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR.
(2007)LCN/2482(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2007
CA/E/97/2007
RATIO
COURT – DUTY OF THE COURT: WHETHER IT IS THE FUNCTION OR DUTY OF THE COURT TO ENGAGE IN ACADEMIC EXERCISE
“It is trite that a court cannot and should not engage in academic exercise, it is not the function or indeed the duty of the court to embark on advisory opinion. The court has no jurisdiction to do that. The courts are established to determine live issues. See Attorney General of Anambra State v. Attorney General of Federal Republic of Nigeria & others (2005) 5 SCNJ Page 38.” PER JIMI OLUKAYODE BADA J.C.A.
COURT – ACADEMIC ISSUES: WHEN WILL A SUIT OR PROCEEDINGS BE SAID TO BE ACADEMIC OR HYPOTHETICAL IN NATURE
“Undoubtedly a suit or proceedings is said to be academic or hypothetical in nature if it has no bearing with live issues or that its determination would be an exercise in futility. Refer to DIKE v. NZEKA (1986) 2 NWLR (Pt.34) 144.” PER JA’AFARU MIKA’ILU, J.C.A.
JUDGMENT AND ORDER – ORDER OF PROHIBITION AND MANDAMUS: WHETHER AN ORDER OF PROHIBITION OR MANDAMUS IS A REMEDY FOR AN ACT WHICH HAS ALREADY BEEN DONE
“An order of prohibition is not a remedy for an act which had taken place. The same to order of mandamus.” PER JA’AFARU MIKA’ILU, J.C.A.
JUSTICES
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
CHARLES CHINWENDU ODEDO Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY (PDP)
OBINNA CHIDOKA – PARTY TO BE HEARD Respondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): The appellant, by way of originating summons, claimed four reliefs before the Federal High Court, Enugu in suit NO.FHC/EN/CS/46/07, CHARLES ODEDO v. INEC AND ANOR. The reliefs were as follows:
1. A declaration that the 2nd Respondent having a List of PDP candidates it proposes to sponsor at the 2007 elections into the House of Representatives for Anambra State Federal Constituencies to the 1st respondent pursuant to section 32 of the Electoral Act 2006, a substituting of the applicant’s name on the said list with that of Obinna Chidoka after the 20th of February 2007 is unconstitutional null and void same not being in compliance with section 34(1) and (3) of the Electoral Act 2006.
2. An order of prohibition restraining the 1st Respondent from using the substituted list of PDP candidates for election into Federal House of Representatives in Idemili North and South Federal Constituency.
3. An Order of Prohibition restraining the 1st Respondent from publishing the said substituted list which was published after the 20th February 2007 or any other substitution list bearing the name of Obinna Chidoka or any other name in place of the Applicant’s name as PDP candidate for Idemili North and South Federal Constituency pursuant to section 35 of the Electoral Act 2006.
4. An order of mandamus directing the 1st Respondent to publish a statement of the full names of PDP candidates standing nominated for selections into the Federal House of Representatives for the Federal Constituencies of Anambra State as submitted to it by the 2nd Respondent on the 23rd of December 2006, in accordance with section 35 of the Electoral Act 2006.
The above suit was dismissed by the lower court and the appellant filed this appeal before this court. On its own motion this court asked the parties suo motu to file written addresses on competence of the appeal since the election had since taken place and there was no restraining order against the election which was violated by the Respondents and the party to be Heard at all times material.
Thus the sole issue which now stands for determination is whether the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an election tribunal having been set-up.
Undoubtedly a suit or proceedings is said to be academic or hypothetical in nature if it has no bearing with live issues or that its determination would be an exercise in futility. Refer to DIKE v. NZEKA (1986) 2 NWLR (Pt.34) 144. In our case all the reliefs being sought are in respect of an election which has already taken place. The 1st Respondent in his written submission has correctly argued that in view of section 285(1)(a) of the 1999 Constitution it is the National Assembly Election Tribunals set up pursuant to said section 285(1)(a) of the 1999 Constitution that can exercise exclusive original jurisdiction in respect of issues concerning the election into National Assembly. He has drawn the attention of this court to the fact that there is no relief by the appellant urging this court to nullify the election in issue and order the conduct of a fresh one with his name on the ballot box. He has further argued that the appellant having not been a candidate in the said election for the National Assembly lacks the requisite locus standi to institute a petition at the National Assembly Election Petition Tribunals. It is to be noted that the appellant in his reliefs, especially the 2nd relief, prayed the trial court to make an order of prohibition restraining the 1st respondent from using the substituted list of PDP Candidates for elections into the Federal House of Representatives in Idemili North and South Federal Constituency. But the substituted list had already been used. In short, the reliefs 2 – 4 are in respect of prohibition and mandamus in respect of which election had already taken place. There is no prayer asking this court, or any court, to nullify the election which has already taken place.
In short, the relief sought under reliefs (2) and (3) are for prohibition of acts which had already taken place. Also the mandamus sought under (4) was for a act which had already taken place. An order of prohibition is not a remedy for an act which had taken place. The same to order of mandamus. Grant of relief No.1 would not serve any reasonable purpose once there is no prayer seeking for the nullification of the election which had already been conducted.
In the final conclusion it is clear in view of the above that the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an election tribunal which is in the appropriate venue, having been set up. Consequently the appeal is struck out as a mere academic exercise.
I award no costs.
JIMI OLUKAYODE BADA, J.C.A.: I have had the privilege of reading before now, the lead judgment of my learned brother JA ‘AFARU MIKA “ILU, JCA. Just delivered. I agree with the reasons given therein and the conclusion reached that hearing the appeal is a mere academic exercise.
However I wish to add that since elections have been conducted and concluded the injunctive reliefs on which the declaratory prayer revolve have been overtaken by events and there are no more live issues to be determined by this Court as far as the reliefs being claimed by the appellant is concerned. And where there are no live issues to be determined, the court will treat such issues or questions as academic.
It is trite that a court cannot and should not engage in academic exercise, it is not the function or indeed the duty of the court to embark on advisory opinion. The court has no jurisdiction to do that.
The courts are established to determine live issues. See Attorney General of Anambra State v. Attorney General of Federal Republic of Nigeria & others (2005) 5 SCNJ Page 38.
Furthermore I am of the view that by a combined effect of
– Section 285(1)(a) of the 1999 Constitution,
– Sections 69(c) 140(1) and 145(1)(a) to (d) of the Electoral Act 2006, this cause of action has inured to the Election tribunal.
Section 145(1)(b) of the Electoral Act 2006 provides that:-
“An election may be questioned on…… grounds that
(a) ……
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act” (Emphasis supplied).
The essence of the Appellant’s case is that the 1st Respondent did not comply with Section 34 of the Electoral Act, 2006 in the matter of his substitution. And since non-compliance has been made a ground for presenting an election petition thus the Appellant is not left without a remedy.
It is for the above reasons and fuller reasons in the Lead Judgment that I also strike out the appeal. I abide by the consequential orders.
Appearances
Chief (Mrs) A. J. Offiah, SANFor Appellant
AND
J. I. Onwugbolu (Miss), Esq for 1st Respondent
Dr. Onyechi Ikpeazu, SAN for 2nd Respondent
Amobi Nzelu Esq., for Party to be HeardFor Respondent
