Ola-animashaun Harimot Olubukola (Mrs) & Anor V. Attorney General of Lagos State & Ors (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A.

This is an appeal against the judgment of the Lagos State High Court sitting at Ikeja and delivered by HON. JUSTICE BOLA OKIKIOLU – IGHILE on the 17th day of December, 2012 wherein the lower Court upheld a preliminary objection and struck out the action of the Appellants for want of jurisdiction.

The Appellants by way of Originating Summons taken out against the Respondents sought answers to certain questions
i. Whether the Lagos State House of Assembly has the power under the Constitution of the Federal Republic of Nigeria 1999 (as Amended), hereinafter referred to as ?the Constitution” to make the Lagos State Independent Electoral Commission Law, 2008 to establish a body (the State Independent Electoral Commission) which has already been established by Section 197(1) (b) of the Constitution with both its composition and powers as stated by Section 197(2), Part II of the Third Schedule to the Constitution.
ii. Whether the Lagos State Independent Electoral Commission (hereinafter referred to as “LASIEC?) has the power under Section 197(2) and Part II, Paragraph 3,

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4(a) and (b) of the Third Schedule of the Constitution to organise and supervise election into Local Government Council Development Areas, as distinct from Local Government Councils/Areas.
iii. Whether there was election conducted into the offices of the Chairman and Vice Chairman of Ikorodu Local Government Council/Area as established by the Constitution and recognized by Sections 9 and 156 of the Electoral Act, 2010.
iv. Whether the election conducted by LASIEC on 22nd October, 2011 into the offices of the chairman and vice chairman of Ikorodu Central Local Council Development Area by virtue of which the 4th and 5th Defendants were elected as chairman and vice chairman respectively is the same as the election required by the provisions of the Constitution and the provisions of the Electoral Act, 2010 to be Ikorodu Local Government/Area as established and recognized by the Constitution.
v. Whether the constitutional right of the Appellants to vote and be voted for at an election to a local government council as guaranteed by the provision of Section 7(4) of the Constitution has not been breached by the failure of LASIEC to conduct election into

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the offices of the chairmen and vice chairmen of Ikorodu Local Government Council/Area as established and recognized by the Constitution and the Electoral Act, 2010.
vi. Whether having regards to the provisions of the Constitution, particularly the provision of Section 1(2), the 4th to 15th Respondents cannot be said to have taken control of the government of Ikorodu Local Government/Area unlawfully and in breach of the provision of Section 1(2) of the Constitution.

The 3rd and 4th – 15th Respondents upon being served with the Originating Summons separately filed Preliminary objections challenging the action for want of jurisdiction. The Preliminary objections were taken jointly and the Court in its combined ruling upheld the objection and struck out the suit. Dissatisfied with the said Ruling, the Appellants filed a Notice of Appeal dated 11th February, 2013 setting out 9 grounds of Appeal and seeking the following reliefs:
a. An order setting aside in its entirety the Ruling of the Honourable Justice Bola Okikiotu – Ighile delivered on the 17th December, 2012.
b. An order that this Honourable Court involving its powers under Section 15

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of the Court of Appeal Act, considering the fact that this is a constitutional matter calling strictly for the interpretation of Section 7(4), 197(1) (b) and 197 (2) of the 1999 Constitution, by hearing the Originating Summons on its merit and giving judgment for the Appellants.

The Appellants filed their Appellant’s Brief of Argument dated 6th June, 2013 filed on the 7th June, 2013 and a Reply Brief to the 3rd Respondent’s Brief of Argument and Preliminary Objection and also a Reply brief to the 4th ? 15th Respondent’s Brief dated 5th February 2016 and filed on the same date.
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The 1st and 2nd Respondents did not file any brief. The 3rd Respondent’s Brief dated 29th day of August, 2013, filed on the same date incorporated arguments in support of the Preliminary Objection filed separately on 29/8/13. The 3rd Respondent also filed a Notice of intention to contend that Judgment should be affirmed on grounds other than those relied on by the Court below. It was filed on the 29/8/13. The 4th – 15th Respondents Brief is dated 8th July, 2013 filed on the 12th July, 2013. The Preliminary objection was moved and briefs adopted at the hearing of the

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Appeal. The Appellant distilled the following issues for determination as follows:
(i) Whether the learned trial Judge was right to have held that the Appellants’ claims constitute a post election matter, thus declining jurisdiction after having held that prayers 1 and 2 of the originating summons are not post election matters Grounds 1, 2, 3 and 4.
(ii) Whether the learned trial Judge was right in determining the issue of jurisdiction not to have taken into consideration the affidavit in support of the originating summons and to have relied only on the counter affidavit filed by the Appellants against the 3rd Respondent?s notice of preliminary objection, after having erroneously struck out paragraphs 4, 5, 6 and 7 of the said counter affidavit as offending against Section 115 (2) of the Evidence Act, 2011 and proceeding to rely on the remaining four paragraphs to determine the issue of jurisdiction – Grounds 5, 6 and 7.
(iii) Whether the ruling of the learned trial Judge was not a nullity, the same having been delivered on 17 December 2012, 207 days after final addresses had been taken on 24 May 2012 contrary to the requirement of Section

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