Hon. Gabriel Yunisa Olofu & Ors. V. Mr. Michael Adejoh Itodo & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Abuja in appeal N0.CA/A/245/2009 delivered on the 17th day of June, 2010 allowing the appeal of the 1st respondent in the first appeal and 4th respondent in the second appeal and dismissing the decision of the High court of Kogi State, Okpo Judicial Division in suit No.OHC/8/2008 delivered on the 7th day of May, 2009.

On the 28th day of August, 2008, the 1st respondent in the 1st appeal and 4th respondent in the second appeal, Mr. Michael Adejoh Itodo took out an originating summons calling for the determination of the following questions:-

i. Whether the claimant who contested for and won the election into the office of Councilor representing Ogugu Ward II Olamaboro Local Government Council, in the Election organized by the 2nd defendant on the 26th July, 2008 could be substituted by the 3rd defendant after the election.

ii. Whether the 2nd defendant either acting alone or in concert with the 1st and 3rd defendants could withhold the claimant’s certificate of return after he had contested and won the election into the office of Councilor for Ogugu Ward II in Olamaboro Local Government Council.

iii. Whether the 1st defendant is entitled to refuse to swear in the claimant who, as the candidate of the 3rd defendant, contested and won election into the office of Councilor representing Ogugu Ward II in Olamaboro Local Government Council.

iv. Whether going by the provisions of Section 56 of Kogi State Local Government Electoral Law, 2004 the 1st to the 3rd defendants can substitute the 4th defendant for the claimant as the councilor representing Ogugu Ward II after election has been contested and won by the claimant in the Local Government election held on 26th July 2008 in Kogi State.

The said claimant sought the following reliefs from the court.

“1. A declaration that the 3rd defendant cannot substitute the 4th defendant for the claimant who contested for and won the election into the office of Councilor representing Ogudu Ward II in Olamaboro Local Government Council in the Election organized by the 2nd defendant on the 26th July, 2008.

2. A declaration that the refusal by the 1st defendant to swear in the claimant along with the other elected councilors on the 30th of July, 2008 is illegal, unconstitutional, null and void and constitutes a flagrant violation of the claimants rights.
3. A declaration that the 4th defendant who did not contest in the election held by the 2nd defendant on the 26th July, 2008 cannot be sworn in by the 1st defendant as the councilor representing Ogudu Ward II in Olamaboro Local Government Council.
4. A declaration that the 2nd defendant cannot withhold the certificate of return of the claimant who contested and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the election held on the 26th July, 2008.
5. An order directing the 2nd defendant to release to the claimant his certificate of return as the councilor representing Ogugu Ward II in Olamaboro Local Government Council.
6. An order directing the 1st defendant to, forthwith, swear in the claimant as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council the claimant having contested and won the election into the Councillorship seat of Ogugu Ward II in the Local Government Council election held on the 26th July,2008.
7. An order of injunction restraining the 1st to the 3rd defendants either by themselves, their agents, privies otherwise howsoever from putting forward and swearing in the 4h defendant or any other person other than the claimant as the councilor representing the Ogugu Ward II in Olamaboro Local Government Council.
8. An order of injunction restraining the 4th defendant parading, representing and or howsoever putting himself forward as the councilor representing the Ogugu Ward II in Olamaboro Local Government Council”.

On the 20th day of January, 2009 the 2nd defendant, who is also the appellant in the second appeal, filed a preliminary objection praying the trial court for inter alia.:

“An order striking out the suit for want of jurisdiction”

While the above objection was pending, the 1st, 3rd and 4th, defendants, who are the appellants in the first appeal before this court, filed a preliminary objection on the 8th day of April, 2009 praying the court for:

“An order striking out this suit for being incompetent and this honourable court lacks the jurisdiction to entertain it, as the matter is an intra party, political and domestic dispute of the 3rd appellant which the court have no jurisdiction to entertain.”

In a considered ruling on the objections, the learned trial judge held that the action seeks to challenge the return of the 4th defendant by the 2nd defendant and that the High Court of Kogi State lacks the jurisdiction to entertain same.