Dr. Olusegun Agagu V. Mr.akin Esanmore & Ors (2008)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A. 

By an Originating Summons filed at the Federal High Court on March, 23rd 2007, the 1st – 4th Respondents challenged the eligibility of the Appellant to contest the April 14, 2007 gubernatorial election in Ondo State on the ground that he was disqualified by a Judicial Commission of Enquiry. Upon service of the originating processes on the Appellant and the 5th Respondent by the Bailiff of the lower court a notice of Preliminary Objection was filed by the Appellant challenging the jurisdiction of the lower court to entertain the matter on four grounds.

Parties were directed to file and exchange written briefs. The Appellant and the 1st – 4th Respondents filed and adopted their written submissions. In its considered ruling the lower court Coram: Abimbola Ogie J. dismissed the preliminary objection in its entirety. Dissatisfied, the Appellant filed a Notice of Appeal against the decision.

During the pendency of the suit the April 14, 2007 governorship election was conducted by the 5th Respondent. The Appellant was declared the winner of the election. Once again the jurisdiction of lower court to continue to entertain the matter was questioned on the ground that the Respondents ought to file a petition before the Governorship Election Petition Tribunal. The objection was argued. The lower court dismissed the objection as lacking in merit. Dissatisfied with the decision the Appellant filed another appeal.

ISSUES FOR DETERMINATION

The Appellant on the 26/6/07 filed a Brief of argument in which he framed five issues for determination which are:-

1. Was there service or proper service of the originating processes on the Appellants?
2. Was the action not statute barred for non compliance with section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 and section 34 (3) of the Electoral Act, 2006
3. Can this action be maintained against the Appellant in view of Section 308 of the 1999 Constitution?
4. Does the action qualify as a post election matter and does the lower court consequently not lack jurisdiction.
5. Whether the action ought not to have been referred to the Election Tribunal for determination.

The Appellant had married the issues in the first with that for the second appeal even though there was no consolidation.

The 1st – 4th Respondents filed their Brief of Argument on 2/7/07, and formulated 4 issues for determination as follows:-

i. Whether the service of the originating process on the Appellant was proper having regard to the facts and circumstances of this case.

ii. Whether the action was statute barred pursuant to the Public Officer Protection Act (Cap 379) Laws of the Federation of Nigeria, 1990 and Section 34 (3) of the Electoral Act 2006

iii. Whether as governorship candidate the Appellant was entitled to enjoy immunity under Section 308 of the Constitution.

iv. Whether the conduct of the April 14, 2007 governorship election had divested the lower court of the jurisdiction to entertain the case.

The 5th Respondent filed their Brief of Argument on 26/11/07 and adopted the 1 – 3 issues formulated by the appellant and in place of issues 4 and 5, the 5th Respondent formulated a single issue as Issue 4 which is:-

Whether the conduct and conclusion of the Governorship Election has not rendered this suit merely academic and ousted the jurisdiction of the trial court to entertain the same.