Dahiru & Anor. v. A. P. C. & Ors [2017] 4 NWLR (Pt. 1555) 218 at 244, paras. H-A, per Rhodes-Vivour, JSC:

A suit does not become academic simply because what gave rise to the action is concluded. A pre-election matter that was instituted prior to the conduct of an election subsists and the court in which it is/was instituted continues to have jurisdiction to hear and determine the said pre-election matter even after the conduct of the election.


The facts of the above case are that the Appellants and the 3rd Respondent (Rt. Hon. Aminu Waziri Tambuwal), all members of the APC (1st Respondent), participated in the 1st Respondent’s primaries from which the 3rd Respondent emerged as the 1st Respondent’s candidate for the 11/4/2015 gubernatorial election for Sokoto State. The Appellants were not satisfied with the conduct of the said primaries held on 4/12/2014 which produced the 3rd Respondent. This was on the ground that the primaries was not conducted in compliance with section 87 of the Electoral Act (as amended) and the 1st Respondent’s Guidelines. Consequently, the Appellants filed an action prior to the election vide Originating Summons at the Federal High Court, Abuja.

The Respondents, upon being served with the Originating Summons, filed a preliminary objection challenging the jurisdiction of the trial Court to determine the matter on the ground that since the 2nd Respondent (INEC) had conducted the gubernatorial election and returned the 3rd Respondent as the winner of the said election, the Appellants’ case became academic, hypothetical and worthless. The trial Court disagreed and overruled the preliminary objection. The Respondents’ appeal to the Court of Appeal was allowed. On getting to the Supreme Court, the apex Court allowed the appeal of the Appellants. Rhodes-Vivour, JSC stated the above stated principle. At page 245, paras. B-D of the report, the learned Justice of the Supreme Court summarised the facts and continued:

It is clear that Appellants’ action filed on 27/1/15, a pre-election matter was filed three months before the gubernatorial election were held. The suit is not academic, rather the reliefs sought are not only capable of enforcement but can be enforced….

This decision is commendable. It is quite interesting to note that one of the Justices of the Court of Appeal (Aboki, JCA) who had upheld the preliminary objection of the Respondents while overruling the trial Court, had in an another earlier similar case (Adeogun v. Fashogbon [2008] 17 NWLR (Pt. 1115) 149) held a contrary view which aligned with the position of the Supreme Court above in the instant case. Unfortunately, Aboki, JCA failed to be consistent in his reasoning and also failed to apply the principle of judicial precedent. The Supreme Court censured him heavily. M. D. Muhammad, JSC was unequivocal:

Aboki, JCA wrote the lead judgment in Adeogun v. Fashogbon & Ors (supra), which this court affirmed. In the instant matter, it is intriguing, to say the least, to see the same Aboki, JCA, now a presiding Judge in the panel which decision is appealed against, contrary to his earlier decision as affirmed by this court, to be in a manifest somersault. With such a visibly unpardonable refusal to be bound by the decision of this court on a similar legislation, the negative perception the public has of the judicial process cannot be said to be without basis. The public is entitled, in the face of this brazen disobedience to the authority of the apex court, to conclude that the judiciary is compromised. Parties who subsequently agitate same or similar issues before the courts must fetch same or similar verdicts as did parties who earlier agitated the very same or similar issues. Certainty in decisions of courts remains what the laudable doctrine of precedent or stare decisis is all about. Ignoring the application of the doctrine is inimical to the judiciary’s role as an arbiter… We must sit up!!!

See page 240, paras. D-G of the report.

I hope our Judges would be mindful of the above statement of his Lordship and always stand up to their conviction. In A.T.M. Plc v. B.V.T. Ltd. [2007] 1 NWLR (Pt. 1015) 259 at 284-285, paras. H-A, Alagoa, JCA remarked:

A Judge must stand up to his conviction and be resolute. Having taken a stand, he must abide by it and should not be seen to make statements which are a derogation from his earlier position, or which tend to create more confusion than they solve.

Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.


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