Mrs. Susan Olapeju Sinmisola Olly V. Hon. Olukolu Ganiyu Tunji & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice Stephen Jonah Adah of the Federal High Court delivered on 31st March 2011 wherein the court entered judgment in favour of the Plaintiff and granted all the reliefs sought.

The facts that led to this appeal are as follows:

The party primaries of the 2nd Defendant was conducted on 12th January 2011 to determine the candidate for Amuwo-Odofin Constituency of the Federal House of Representatives among other candidates. The name of the 1st Defendant was submitted by the party – Action Congress of Nigeria, to the 3rd Defendant – the Electoral body, while the Plaintiff claimed to have won the primaries by scoring a total of 61 votes. Dissatisfied and by an amended originating summons dated 7th March 2011, the Plaintiff prayed for the following reliefs:

”1. A declaration that the Plaintiff is the winner of the 2nd Defendant’s primary elections 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.

2. A declaration that the Plaintiff is the candidate of the 2nd Defendant in the April 2011 general elections for Amuwo-Odofin Federal constituency, Lagos state to the Federal House of Representatives.
3. A declaration that the 1st Defendant having lost the primary election for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives is not, and cannot be candidate of the 2nd Defendant in the April 2011 General Election.
4. Declaration that the 1st Defendant is not eligible and or qualified to contest the 2nd Defendant’s primary elections and or April General Elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives, being a person employed in the public service of Lagos State.
5. An order directing the 2nd and 3rd Defendant to recognize the Plaintiff as the candidate of the 2nd Defendant in the April 2011 General Elections for Amuwo-Odofin Federal Constituency, Lagos State.
6. An order of perpetual injunction restraining the 2nd and 3rd Defendants, their servants, privies, agents or whosoever from recognizing, holding out an dealing with or howsoever relating with the 1st Defendant as the candidate of the 2nd Defendant for the April 2011 General Elections for Amuwo- Odofin Federal Constituency, Lagos State to the Federal House of Representatives.
7. 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 the April 2011 General Elections for Amuwo-Odofin Federal Constituency, Lagos State to the Federal House of Representatives.”

GROUND UPON WHICH THE ORIGINATING SUMMONS IS BROUGHT:

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 Defendant 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 87 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 only retire from public service Lagos state as a Principal of Lagos State Senior Model College, Kankon Badagry on 31st March, 2011.

The 1st Defendant filed a counter affidavit to the amended originating summons while the 2nd Defendant had initially filed a counter affidavit to the Plaintiffs earlier originating summons. Reply affidavit was filed to the various counter affidavits of the Defendants. Written addresses were filed by the parties in accordance with the rules of court. By the Notice of Preliminary Objection dated 17th March 2011, the 2nd Defendant challenged the jurisdiction of the lower court to entertain the suit on the ground that:

”The Plaintiffs action is incompetent for failure to commence by the due process of law.

The entire action is an abuse of court process.”

The 2nd Defendant filed a written address in support of the preliminary objection (see pages 429-436 of the record). In reaction, the Plaintiff filed a written address dated 21st March 2011.