Mrs. Susan Olapeju Sinmisola Olley & Ors. V. Hon Olukolu Ganiyu Tunji & Ors (2013)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
In the primary election conducted by 2nd Respondent, Action Congress of Nigeria, to elect its flag bearer in the House of Representatives Election held in April 2012, the appellant was declared winner.
The primary election was monitored by the electoral umpire, the Independent National Electoral commission, the 3rd Respondent in this appeal. Appellant’s name was forwarded to the 3rd Respondent by the 2nd Respondent as the 2nd Respondent’s candidate in the April 2011 elections of members of the Lower chamber of the National Assembly. The election for which the 2nd Respondent nominated the Appellant was for the Amuwo-Odofin Federal Constituency of Lagos State.
The 1st Respondent who took part in the primary election challenged the nomination of the Appellant in the Federal High court, Abuja, by way of originating summons which was subsequently amended by order of the trial court. The suit was transferred to Ikeja Lagos Division of the Federal High Court. It retained the No.FHC/ABJ/CS/217/2011.
In the amended originating summons filed on 9th March, 2011 the 1st Respondent as plaintiff claimed against the appellant and 2nd and 3rd Respondents as defendants as follows:
“1. A declaration that the plaintiff is the winner of the 2nd defendant primary election for Amuwo-Odofin Federal Constituency, Lagos State, conducted on the 12th day of January 2011 to the Federal House of Representatives having scored the highest number of votes.
- A declaration that the plaintiff is the candidate of the 2nd defendant in the April 2011 General Elections for the Amuwo-Odofin Federal Constituency, Lagos State, to the Federal House of Representatives.
- A declaration that the 1st defendant having lost the primary election lost Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives is not, and cannot be the candidate of the 2nd defendant in the April 2011 General Election. Plaintiff is the candidate of the 2nd defendant in the April 2011 General Elections.
- Declaration that the 1st defendant is not eligible and or qualified to contest the 2nd defendant primary elections and or general election for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives, being a person employed in the public Service of Lagos State.
- An order directing the 2nd and 3rd defendants to recognise the plaintiff as the candidate of the 2nd defendant in the April 2011 General Elections for Amuwo-Odofin Federal Constituency, Lagos State.
- An order of perpetual injunction restraining the 2nd and 3rd defendants, their servants, privies, agents or howsoever from recognising, holding out and dealing with or howsoever relating with the 1st defendant as the candidate of the 2nd defendant for the April General Elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives.
- An order of perpetual injunction restraining the 1st defendant from parading herself or howsoever holding out herself as the candidate of the 2nd defendant in April 2011 General elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives.”
The claims in the Originating Summons was predicated on the following grounds:
“(a) The applicant is the winner of the primary election conducted on Wednesday, the 12th of January 2011 for the Amuwo-Odofin Federal Constituency, securing 61 votes against the defendant/Respondent who got 4 votes.
(b) The name of the applicant was illegally substituted for the 1st Respondent who secured the least votes.
(c) The action of the defendant/Respondent in substituting the name of the applicant for the 1st defendant and subsequently forwarding the 1st defendant’s name to the 3rd defendant as its candidate for Amuwo-Odofin Federal Constituency contravenes the provisions of Section 97 and other relevant sections of the Electoral Act, 2010 as amended, including the 1999 Constitution of the Federal Republic of Nigeria as amended.
(d) The 1st defendant will retire from Public Service of Lagos State as a Principal of Lagos State Senior Model College, Kankon-Badagry on 31st March 2011.”
The amended Originating Summons is supported by a 20-paragraph affidavit and a 27-paragraph better and further affidavit. Documents were exhibited to each of the two affidavits.
The 1st defendant filed a 30-paragraph counter-affidavit to which some documents were exhibited. Learned Counsel for the 1st defendant filed a written address. The 2nd Respondent filed a notice of preliminary objection which was taken along with the substantive matter. The 2nd Respondent also filed a 12-paragraph counter-affidavit and a written address. The 3rd defendant did not react to the amended Originating Summons.
The learned trial Judge, in his judgment, dismissed the preliminary objection and having considered the case on its merit, he concluded:
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