The Supreme Court on Thursday set aside the order made by the Court of Appeal in Abuja ordering the maintenance of “status quo ante bellum” in the leadership dispute in the African Democratic Congress (ADC), on which the Independent National Electoral Commission (INEC) acted in derecognising the David Mark-led leadership of the party.
In a lead judgment delivered by Justice Mohammed Garba, the apex court held that while courts possess inherent powers to issue preservative orders to protect the subject matter of litigation, such powers cannot be exercised where there is “nothing left” to preserve.
The judgment arose from the legal battle over the recognition of former Senate President, David Mark, and former Osun State governor, Rauf Aregbesola, as National Chairman and National Secretary of the ADC, respectively.
The first respondent had approached the trial court through an originating summons, accompanied by motions seeking interim and interlocutory injunctions restraining the Independent National Electoral Commission from recognising Mark and Aregbesola as officers of the party pending the determination of the substantive suit.
The plaintiff also sought orders restraining the duo from parading themselves as national officers of the party, occupying the party’s national headquarters, and carrying out functions connected to the disputed offices.
Proceedings reviewed by the Supreme Court showed that when the ex parte application came up before the trial court on September 4, 2025, the judge declined to immediately grant the interim reliefs and instead directed that the respondents be put on notice.
According to the proceedings cited by Justice Garba, the trial court held that “the interest of justice would be met by putting the other parties on notice” to show cause why the reliefs sought should not be granted.
The matter was subsequently adjourned for hearing after service on the respondents.
An appeal was later filed challenging the orders made by the lower court, including directives that parties should maintain the “status quo ante bellum” pending determination of the dispute.
However, the Supreme Court held that the trial court neither granted nor refused an application for injunction but merely issued procedural and preservative directions.
Justice Garba ruled that Section 241(1)(f)(ii) of the 1999 Constitution, which provides for appeals as of right in matters involving injunctions, did not apply in the circumstances of the case.
The justice held that because the appeal did not arise from an actual order granting or refusing an injunction, leave of court was required before a valid appeal could be filed.
He described the requirement for leave as a “condition precedent” to the competence of the notice of appeal.
“The competence of the notice of appeal goes to the jurisdiction of the court,” the justice held, adding that failure to obtain the necessary leave rendered the appeal incompetent.
The apex court also clarified the legal scope of “status quo ante bellum” orders, describing them as preservative measures aimed at preventing parties from taking steps capable of foisting a fait accompli on the court during pending proceedings.
Justice Garba said courts possess inherent jurisdiction to make preservative orders to protect the subject matter of litigation.
He, however, stressed that such powers are exercisable only in relation to ongoing 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 Supreme Court further held that sustaining the status quo ante bellum order after the relevant proceedings had ended effectively transformed the directive into an unwarranted injunction.
Justice Garba described “status quo ante bellum” as the state of affairs existing before the occurrence of the controversial event that gave rise to the dispute.
The apex court subsequently allowed the appeal and set aside the order.
It also directed that all pending processes before the lower court be determined in accordance with the law.
