James G. Orubu V. National Electoral Commission & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

The appellant was a candidate in the Local Government Elections which took place throughout Nigeria on the 12th day of December, 1987. He contested together with the 14th respondent for the chairmanship of Warri Local Government Council in Bendel State. The appellant was not satisfied with the result of the election by which the 14th respondent was declared the winner. The appellant, therefore, brought a petition against the 1st to the 13th respondents in the High Court of Bendel State holden at Warri. The last paragraph of the petition reads as follows-

“38. By their conduct, acts, omissions, dereliction of functions and usurpation thereof as averred in sundry places in this petition, the Respondents have jointly and severally also breached and committed offences against the Provisions of Decree No.37 of 1987 generally and particularly against Section 9(3) thereof; paragraphs 16,21(1),24 and 31 of Schedule 1 thereto as well as subsections 10(3),(5), (6) and (7) of the Schedule to Statutory Instrument (S.L) 19 of 1987 cited as the Transition to Civil Rule (Guidelines for Local Government Elections) Order, 1987.

WHEREFORE your Petitioner prays that it may be determined that the election in respect of the affected Wards was void and be declared as such; and that no candidate be announced as having been elected chairman of the Warri Local Government Council in view of the facts, events and circumstances connected with and/or arising from the election as averred herein.

Your Petitioner also prays for any further relief or order as this Hounourable Court may deem fit to grant or make in the circumstances of this Petition.”

On the 29th day of January, 1988, that is, twenty-three days after the petition was filed, the appellant brought an ex-parte application for the following prayers to be granted-

“1. Leave to hear the motion on 29th day of January, 1988 (that is the very day it was filed)

2. An order making the party sought to be joined (that is Mr. E. O. Asin – the 14th respondent) a party to this petition.
3. An interim injunction restraining the Party sought to be joined from being sworn in as a chairman for Warri Local Government Council Area (sic) pending the determination of this Suit. AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances. “(parenthesis mine).

The ex-parte application was heard, on the day requested by the applicant, by Omoluabi, J. who gave the following ruling-

“Order is granted as prayed. Accordingly, E. O. Asin is hereby restrained from being sworn in as a chairman for Warri Local Government Council Area (sic) pending the determination of this suit whose hearing has been fixed for February 11. 1988.

2. It is hereby ordered that this order shall be served on the said E. O. Asin forthwith together with all the other processes issued in this suit.”

Before the hearing date fixed, the 14th respondent brought a motion on notice before the High Court in the following terms-

“TAKE NOTICE that this Honourable Court will be moved on Thursday the 11th day of February, 1988 at the hour of 9 (nine) O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Respondent. Applicant herein praying this Honourable Court for an order discharging or vacating the Exparte order granted by this Honourable Court on the 29th day of January, 1988 restraining E. O. Asin from being sworn in as a Chairman for Warri Local Government Council Area (sic) pending the determination of the substantive suit, without being heard.

AND for such further and/or other orders(s) as to (sic) this Honourbale Court may seem (sic) fit.”

Exhibited to the affidavit in support of the motion is the certificate of declaration of the result of the election in question. The certificate (Exhibit C) reads-

NATIONAL ELECTORAL COMMISSION No. 81976