State Independent Electoral Commission, Ekiti State V. National Conscience Party (2008)

LawGlobal-Hub Lead Judgment Report

SANKEY, J.C.A.

This is an appeal from the decision of the High Court of Ekiti State at Ado-Ekiti presided over by Babalola, 1., delivered on 25th March, 2004, wherein judgment was given in favour of the respondent.

The brief facts of the case are as follows: the appellant is the body saddled with the responsibility of conducting Local Government elections in Ekiti State. Therefore, in the exercise of its powers under the Ekiti State Local Government Law, 2001, it stated the 27th March, 2004 for the holding of Local Government elections throughout the State. The respondent is one of the registered political parties in Nigeria. In pursuance of this objective, the appellant released guidelines for the conduct of the said elections, some of which pertained to the eligibility of candidates contesting the said election. Arising from its dissatisfaction with some of these guidelines, the respondent took out an originating summons on the 10th February, 2004, praying the lower court to set aside the contested guidelines on the ground that they were unconstitutional.

Upon being served the originating summons on the 20th February. 2004, the appellant filed a conditional memorandum of appearance on the 26th February, 2004 and followed it up with a notice of preliminary objection on the 5th March, 2004 challenging the competence of the suit and the jurisdiction of the court to entertain same. The notice of preliminary objection was heard and dismissed by the court on 15th March, 2004. Dissatisfied with the ruling, the appellant appealed against the decision, and also filed a motion to stay further proceedings in the suit. This motion for stay was argued and same was again dismissed by the lower court on the 22nd March, 2004. On the same day, the respondent filed a motion to amend the originating summons. Being unopposed, it was heard and granted on the 23rd March, 2004. Just as the matter was to proceed to hearing on the same day, learned counsel for the appellant in court sought an adjournent to enable his principal, the learned Attorney General, to argue the matter personally. The learned trial judge refused the application for an adjournment. He proceeded to hear arguments on the originating summons and adjourned to 25th March, 2004, for judgment.

The next day, 24th March, 2004, the appellant filed a motion seeking to attest the judgment of the court as well as a counter-affidavit to the originating summons. On 25th March, 2004, the motion to arrest the court’s judgment was taken and dismissed, while the lower Court proceeded to deliver its judgment on the same day. It granted the reliefs sought and set aside the contested guidelines declaring them unconstitutional. Aggrieved by the decision of the court, the appellant filed a notice of appeal challenging the decision on four grounds. The grounds without their particulars are as follows:

“Ground 1

Lack of jurisdiction by the court,the trial court lacks the competence and jurisdiction to entertain the suit when the amended originating summons was defective and Ilorin conformity with the mandatory provisions of Order 26 rules 4, 5 and 6 of the Ondo State Rules of the High Court, 1987 as applicable to Ekiti State.

Ground 2

Error in law. The learned trial judge erred in law in breaching the fundamental right of appellant to fair hearing entrenched in section 36 of the Constitution of Nigeria, 1999, when he refused to let in the defence of the defendant to the amended originating summons heard on 23rd March, 2004.

Ground 3

Lack of jurisdiction – The learned trial judge lacks competence and jurisdiction to hear and determine the amended originating summons when the condition precedent was not fulfilled in that the said document which requires the signature of the registrar or other officer of the High Court duly authorised to sign summons was not contained.

Ground 4

Error in law – The trial court erred in law in taking extraneous matters into consideration instead on considering whether or not the appellant is entitled to a valid defence to the originating summons. ”

When this appeal was called up for hearing on the 4th February, 2008, Gboyega Oyewole, Esq., Hon. Attorney General of Ekiti State, with whom was Gbemiga Adaramola, Esq., Assistant Chief Legal Officer, for the appellant, adopted the appellant’s brief dated 9th February, 2005 and deemed filed on 16th February, 2005, as the appellant’s arguments in this appeal. He withdrew the appellant’s reply brief already filed.