Fatimah Otunsanya
The Supreme Court on Thursday set aside a controversial “status quo ante bellum” order made in the protracted leadership crisis rocking the African Democratic Congress, holding that the preservative directive could not validly subsist after proceedings had been concluded.
In a lead judgment delivered by Justice Mohammed Garba, the apex court held that although courts possess inherent powers to make preservative orders to protect the subject matter of litigation, such orders cannot survive once proceedings have been “fully, conclusively and finally concluded.”
The court subsequently allowed the appeal and nullified the order sustaining the status quo ante bellum in the dispute involving rival factions of the ADC leadership.
The judgment arose from the legal battle over the party’s leadership structure, including the legitimacy of appointments and congresses conducted by opposing factions within the party.
Justice Garba, in the judgment, explained that the trial court’s directive maintaining the status quo ante bellum was essentially a preservative order intended to prevent parties from taking steps capable of foisting a fait accompli on the court while proceedings were ongoing.
The justice, however, held that such powers must be exercised only in relation to live proceedings.
According to him, once proceedings have been “fully, faithfully, conclusively and finally concluded,” there would be “nothing left for that court to preserve.”
The apex court also addressed the competence of the appeal filed in the matter and the constitutional basis relied upon by the appellants.
Justice Garba held that Section 241(1)(f)(ii) of the 1999 Constitution, which provides for appeals as of right in certain interlocutory decisions relating to injunctions, did not apply in the circumstances of the case.
He held that the trial judge neither granted nor refused an application for injunction but merely issued procedural directives aimed at preserving the subject matter of the dispute pending hearing.
The court further held that because the grounds of appeal were not purely on points of law, leave of court was required before the appeal could validly be filed.
The justice stressed that obtaining leave in such circumstances was a “condition precedent” to the validity and competence of the appeal.
He added that the competence of a notice of appeal goes to the jurisdiction of the court and once defective, the entire appeal becomes incompetent.
Despite those findings, the apex court proceeded to examine the propriety of the preservative orders made by the lower courts and eventually held that sustaining the status quo ante bellum after the relevant proceedings had ended was unnecessary and legally unsustainable.
The Supreme Court consequently set aside the order and directed that pending processes before the lower court be determined in accordance with the law.
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