Accord Party & Ors V. The Governor of Kwara State & Ors (2009)

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JUSTICE IGNATIUS IGWE AGUBE, J.C.A.

This appeal is against the Ruling of the High Court of Justice, Kwara State, Ilorin Division, delivered by the Honourable Justice E. B. Mohammed on the 27th of November, 2007, striking out the Plaintiffs/Appellants’ suit No. KWS/133/07 for want of jurisdiction.

It would be recalled that the Plaintiffs/Appellants had on the 9th of November, 2007, by way of Originating Summons dated 8th November, 2007, sought for the following questions to be determined by the High Court:-

1. Whether the 1st and 2nd Defendants could lawfully and validly constitute the 3rd Defendant inspite of the judgment of the Supreme Court in the Suit of Governor of Kwara State & Ors. v. Alhaji Issa Ojibara Suit No. SC/166/2004 delivered on 15/12/2006?
2. Whether the 3rd Defendant constituted by the 1st and 2nd Defendants inspite of the Supreme Court decision can validly and legally conduct election into the Local Government Council Areas of Kwara State?
3. Whether it is not the Alhaji Issa Ojibara led KWASIEC who were reinstated by the Supreme Court in the Judgment delivered on 15/12/2006 in Suit No. SC/166/04 that has the constitutional and legal right to conduct election into the Local Government Council Areas of Kwara State?
4. Whether the Election conducted by the 3rd Defendant into the Local Government Council Areas of Kwara State on 3rd November, 2007, was not illegal, ultra vires, null and void?
5. Whether the appointment and Constitution of the 3rd Defendant by the 1st Defendant was not contemptuous, illegal, ultra vires, null and void?

The Plaintiffs/Appellants also sought for the following Reliefs in consequence of the determination of the above questions:-

1. A declaration that the appointment and Constitution of the 3rd Defendant by the 1st Defendant is contemptuous, illegal, ultra vires, unconstitutional, null and void;
2. A declaration that the election conducted by 3rd Defendant on 3/11/07 at the instruction and directive of the 1st Defendant is illegal, ultra vires, unconstitutional, null and void;
3. A declaration that it is the Alhaji Issa Ojibara led Commission that was reinstated by the Supreme Court in its Judgment delivered on 15/12/06 in Suit No. SC/166/2004 that can lawfully and constitutionally conduct Local Government Election in Kwara State until the expiration of their 5 years constitutionally guaranteed tenure of office;
4. An Order setting the election conducted by the 3rd Defendant on 3/11/07 pending the time the reinstated Alhaji Isaa Ojibara led Commission will conduct fresh election into all the 16 Local Government Councils in Kwara State;
5. An Order directing the 1st Defendant to reinstate the legally constituted KWASIEC as directed by the Supreme Court in its Judgment of 15/12/06 in the case of Governor of Kwara State & Ors. v. Alh. Issa Ojibara & Ors Suit No. SC/166/2006;
6. An Order of perpetual injunction restraining the 1st Defendant, agents or privies from swearing in or recognizing the Chairmen and Councillors purportedly elected on 3/11/07 at the election conducted by the 3rd Defendant.

In support of the Originating Summons was a twenty-six paragraph affidavit sworn to by Elder Kayode Kuti, the Chairman of All Parties Congress in Kwara State to which Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’ were annexed together with a written address.

The Plaintiffs/Appellants further filed a Motion on Notice which sought for an order of interlocutory injunction restraining the 1st Respondent, agents, privies or anybody claiming through him or for him from swearing in the Chairmen, Vice Chairmen and Councillors elected on 3/11/07 pursuant to the election conducted by the 3rd Respondent.

On the 21st day of November, 2007, J.A. Mumuni Esq., the Learned Director of Public Prosecutions, Kwara State Ministry of Justice, entered conditional appearance and filed a Notice of Preliminary Objection on behalf of the 1st – 3rd Defendants/Respondents on the following Grounds:-

1. That the Honourable court had no requisite competence and/or jurisdiction to hear and determine the Applicants/Respondents’ Suit as it were;
2. That Applicants/Respondents’ suit was not properly constituted thus same was incompetent.

The Learned Director of Public Prosecutions (hereinafter to be addressed as the learned D.P.P.) also filed a Written Address in support of the Notice of Preliminary Objection on the same date.

On the 22nd day of November, 2007 the firm of Yusuf O. Ali & Co. entered conditional appearance on behalf of the 3rd Defendant/Respondent which was also accompanied by a Notice of Preliminary Objection and a Written Address in support thereof.

Their objection was predicated on the following Grounds:-

1. That the Suit constituted a flagrant abuse of court’s process;
2. That the Suit disclosed no cause of action;
3. That the Applicants had no locus standi to institute and maintain this action;
4. That the action was badly and improperly constituted and is incurably defective; and
5. That action was unconstitutional.

On the 26th of November, 2007, the respective Written Addresses on the Preliminary Objection were adopted and the Plaintiffs/Appellants’ Counsel replied orally to the submissions of the learned Counsel for the respective objectors, thus culminating in the Ruling the subject of this Appeal.

Dissatisfied with the Ruling of the lower Court, the Appellants gave Notice of Appeal with two Grounds which can be found at pages 105 to 107 of the Record of Proceedings. Briefs were duly exchanged by the parties when the Record of Appeal was transmitted to this Honourable Court and in the Brief settled by Chief Teju Oguntoye for the Appellants, a sole issue was formulated for determination in the following terms:-

“Whether it is not the State High Court that has jurisdiction to determine the issues involved in the Claimants/Appellants Suit (Grounds 1 – 3).”

As for the 1st and 2nd Respondents, the learned D.P.P. (J.A. Mumuni Esq.), in the Brief settled on their behalf distilled three issues which he feels are germane to the determination of the Appeal, as follows:-