The Supreme Court on Thursday set aside a controversial “status quo ante bellum” order in the protracted leadership crisis of the African Democratic Congress (ADC), ruling that the preservative directive could not validly subsist after the underlying proceedings had concluded.
In a lead judgment, Justice Mohammed Garba said courts have inherent powers to issue preservative orders to protect the subject matter of litigation, but such orders cannot survive once proceedings are “fully, conclusively and finally concluded.” The court allowed the appeal and nullified the order that had sustained the status quo ante bellum in the dispute between rival ADC factions.
The judgment arose from a legal battle over the party’s leadership structure, including the legitimacy of appointments and congresses conducted by opposing factions.
Justice Garba 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 that could create a fait accompli while proceedings were ongoing. He held, however, that those powers must be exercised only in relation to live proceedings; once a matter is finally concluded, “there is nothing left for that court to preserve.”
The apex court also considered the competence of the appeal and the constitutional provision relied on 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 because the trial judge neither granted nor refused an application for injunction but issued procedural directives to preserve the subject matter pending hearing.
The court further found that because the grounds of appeal were not solely points of law, leave of court was required before the appeal could be validly filed. Obtaining leave in such circumstances was described as a “condition precedent” to the appeal’s validity; once defective, the notice of appeal affects the court’s jurisdiction and renders the appeal incompetent.
Despite those findings on competence, the Supreme Court examined the propriety of the preservative orders and concluded that sustaining the status quo ante bellum after the relevant proceedings had ended was unnecessary and legally unsustainable. The court set the order aside and directed that pending processes before the lower court be determined in accordance with the law.
