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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A:(Delivering the leading judgment)

This is an appeal against the Ruling of the Justice A.O. Salihu, of the High Court of Justice, Kogi State, sitting at Okpo, delivered on the 7th day of May, 2009, wherein the learned trial Judge declined jurisdiction to entertain and determine the Appellant’s case holding same to be a post-election matter, arising from the Local Government Election in respect of Ogugu Ward II, held on the 26th day of July, 2008.

The Appellant (Plaintiff at the Lower Cower), was a candidate of the 3rd Respondent, the Peoples Democratic Party (PDP) at the election held on the 26th day of July, 2008, to the office of councilor representing Ogugu Ward II, Olamaboro Local Government Council, which election was organized by the 2nd Respondent, Kogi State Independent Electoral Commission.

The Appellant took out an Originating summons, filed on the 28th day of August, 2008, and caused same to be issued upon the Respondents for the determination of the following questions:-

1 Whether the Claimant, who contested for and won the section into the office of councilor representing Ogugu Ward II in 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.

2. 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 councillor for Ogugu Ward II Olamaboro Local Government Council.
3. 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.
4. Whether going by the provisions of SECTION 59 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.

Based on the answers to the above questions the claimant seeks against the Defendants the following declaratory reliefs:-

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 Ogugu Ward II in Olamaboro Local Government Council in the Biection organized by the 2nd Defendant on the 26th July, 2008.

2) A declaration that the refusal by the 5th defendant to swear in the claimant along with the other elected councillors on the 30th of July, 2008, is illegal unconstitutional, null and void and constitutes a flagrant violation of the Claimant’s 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 Ogugu 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 Oguau Ward II in Olamaboro Local Government Council, the claimant having contested and won the election into the councilor seat of Ogugu Ward II in the Local Government Council election held on the 26th July, 2008.

7) An order of an injunction restraining the 1st to the 3rd Defendants either by themselves, their agents, privies otherwise howsoever from putting forward and swearing in the 4th 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 from parading, representing and or howsoever putting himself forward as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council.