Sunday Ogunbiyi Obasanya V. Hon. Bashiru Bolarinwa Omolaja & Ors (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

This application was filed on 5/9/2000 by the appellant/applicant seeking the following reliefs:

1. AN ORDER for departure from the rules of this Honourable Court by allowing the appellant/applicant to compile the Records of Appeal and treating the bundle of documents compiled by the appellant/applicant and attached to this application as Exhibit ‘SO’ as the record of appeal for the purpose of this appeal.
2. AN ORDER accelerating the hearing of this appeal by abridging the time within which the parties are to file their briefs of argument.
3. AN ORDER accelerating the hearing of this appeal.
4. AN INTERIM ORDER restraining the 1st & 2nd respondents from further recognizing the 4th respondent as Councilor for ‘Ward F’ (180) Lagos Mainland Local Government or further permitting him to occupy and function in that office pending the hearing and determination of this appeal.
5. AN INTERIM ORDER restraining the 4th respondent from further parading himself as Councilor for ‘Ward F’ Lagos Mainland Local Government or further performing the functions or enjoying the privileges, perks and perquisites and of the office pending hearing and determination of this appeal.
6. AN INTERIM ORDER of MANDAMUS compelling the 1st and 2nd respondents to swear in the appellant/applicant pending the hearing and final determination of this appeal.
7. AN ORDER dispensing with the filing of brief and hearing the appeal by oral arguments.
8. Such further or other orders as this Honourable Court may deem fit to make in the circumstances”.

In support of the application is filed an affidavit of 23 (twenty-three) paragraphs, exhibited to the affidavit are namely: Certificate of return of election marked Exhibit ‘SO1′, Order of Mandamus Exh. S02’ and a bundle of documents as record of appeal marked Exh ‘SO’ The material averments are contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20. They also tell a comprehensive story upon which the application is grounded and they are set forth in extenso as follows:

“2. The 1st respondent is the Chairman of Lagos Mainland Local Government and is responsible inter alia, for the swearing in of Local Government Councilors elect for the different Wards of the Local Government.

3. The 3rd respondent is the body established by law to conduct elections into all the elective government posts in Nigeria and in particular was responsible for the conduct of the 1998 Local Government Elections.
4. During the 1998 Local Government Elections, I contested as a Councilor for Ward ‘F’ of the Lagos Mainland Local Government.
5. I was nominated by my party, the Alliance for Democracy (AD) and stood for the election which I won on the 5th of December, 1998 having being so declared by the INEC and issued with the Certificate of Return of Election. Attached and marked Exhibit ‘SO1’ is a copy of the certificate of return.
6. On the 3rd day of June, 1999 when I was to be sworn-in along with other Councilors-elect by the 1st respondent, I was served with a court process instituted by the 4th defendant challenging my election well after the statutory period.
7. Even though there was no court order restraining the Chairman. 1st respondent, from swearing me in, he nevertheless declined to swear me in and for this reason I briefed my solicitors, Rotimi Jacobs & Co., who challenged the court action on the ground of being in competent and statute barred.
8. In the course of the action at the High Court, the Honourable Judge surreptitiously granted an ex-parte order of mandamus in favour of the 4th respondent compelling the 1st and 2nd respondents to swear him in as Councilor and thus supplanting me. Attached and marked Exhibit ‘S02’ is a copy of the order.
9. The case eventually went to the Court of Appeal, the High Court having overruled the preliminary objection brought by my solicitors against the action filed challenging my election as Councilor.
10. The Court of Appeal in a unanimous decision on the 21st day of June, 2000, upheld the preliminary objection and dismissed in its entirety the action filed challenging my election and the ex-parte order of mandamus was also set aside.
11. By virtue of the said decision the validity of my election as Councilor for Ward ‘F’ was reconfirmed and my status as Councilor-elect was preserved.
12. However, despite this decision of the Court of Appeal, the 4th respondent has continued to occupy and enjoy the office and the 1st and 2nd respondents have continued to accord him the recognition even though the aforesaid order of mandamus vide which he was sworn in as against me had been set aside by the Court of Appeal.
13. Even though the judgment of the Court of Appeal was promptly served on all the respondents, the 1st and 2nd respondents, have refused to swear me in as Councilor for Ward ‘F’ of the Lagos Mainland Local Government.
14. My solicitors have further written a letter to the 1st respondent demanding that I be sworn-in but to no avail.
15. For over 13 months till date, the people of my constituency have not enjoyed the fruits of the votes they cast for me at the election and my tenure of office, which is 3 years, is almost half spent without enjoying the office and fulfilling the promises I made to the people of my ward.
16. If this Honourable Court does not intervene urgently, my political carrier is at the risk of being completely ruined by the antics of the 1st respondent and his utter disregard for the rule of law.
17. If this Honourable Court does not compel the respondents to swear me in, I shall be denied the fruit of my election as Councilor (since more than half of my 3 years tenure has been usurped and is being enjoyed by the 4th respondent) as the 1st respondent has demonstrated his unwillingness to swear me in despite the Court of Appeal decision and the fact that he owes such public duty to perform.
18. That we have compiled the record of appeal in this matter and same is hereby annexed and marked Exhibit ‘SO’.
19. That Mr. Rotimi Jacobs of counsel informed me and I verily belief that by the rules of procedure of this Honourable Court the order of this Honourable Court need to be sought and obtained for a departure from the rules to make the compiled record valid for this appeal.
20. That the main purpose of compiling the record ourself is to hasten the hearing and determination of the appeal owing to the urgency therein.

The 1st and 2nd respondents on 25/9/2000 have filed a counter-affidavit of 15 (fifteen) paragraphs sworn to by Mrs. R. T. Oluwole, Legal Officer in the Lagos Mainland Local Government, Lagos State. The 4th respondent on 11/10/2000 filed his counter-affidavit of 20 (twenty) paragraphs sworn to by the 4th respondent. The 3rd respondent appears passive as he did not file any papers although it took part in the arguments.

On 26/9/2000 the 4th respondent filed a notice of preliminary objection while on 11/10/2000 the 1st and 2nd respondents also filed their notice of preliminary objection.

The 1st respondent’s complaints in the preliminary objection have been itemized thus:

(1) That this Honourable Court has no jurisdiction to entertain this suit.

(2) That the case is statute barred by virtue of section 167 of the Lagos Local Government Law No. 16 of 1976.

(3) That the conditions precedent to the institution of an action against the 1st and 2nd applicants/respondents have not been fulfilled as provided for under section 168 subsections 1 and 2 and section 169 of the Local Government Law No. 16 of 1976 Lagos State.

The 4th respondent has cataloged 11 (eleven) objections to the application and they are as follows:

1. Suit No.M/483/2000 is a nullity.
2. This Appeal No. CA/L/320/2000 is a nullity.
3. Notice of Appeal has not been served on the 4th respondent.
4. The issue of jurisdiction of Lagos State High Court in respect of this matter, has been decided by this Court of Appeal in Suit No.CA/L/371/99.
5. Appeal No. CA/L/371/99 does not look into who was the candidate that contested and won election into Ward ‘F’ of Lagos Mainland Local Government on 5th December, 1998.
6. The first respondent to this appeal has no duty under section 23 of Local Government (Basic Constitutional and Transitional) Decree No.36 of 1998 to swear-in an election councilor.
7. The first respondent is not a necessary party to Suit No. M/483/2000, a fortiori this appeal No.CA/L/320/2000.
8. The third respondent is not known in law.
9. The appellant was not a candidate in the election into Ward F of Lagos Mainland Local Government Area of Lagos State conducted by Independent National Electoral Commission (not the third defendant herein) on the 5th of December, 1998.
10. The appellant has not fulfilled any of the pre-conditions for taking the seat of councilor in any land.
11. The office of Councilor for Ward F of Lagos Mainland Local Government is not vacant and was not declared vacant in Appeal No.CA/L/391/99

The grounds for the objections were copiously given as follows:

1. Suit No.M/483/2000 contravenes section 233(1) of the Constitution of Federal Republic of Nigeria, 1999.
2. Suit No.M/483/2000 is a relitigation of the issue of jurisdiction decided upon by the Court of Appeal in Appeal No.CA/L/371/99 involving the same parties-estoppel per rem judicata.
3. The Court of Appeal is functus officio in the matter of jurisdiction in this suit.
4. The High Court of Lagos State Lacks jurisdiction to entertain suit No.M/483/2000 and Appeal No.CA/L/391/99 is binding on the parties.
5. The issue of jurisdiction raised at the State High Court is yet to be heard and determined by the State High Court.
6. The first respondent is an agent of the second respondent.
7. It is incumbent on the appellant, if he contested and won the election into the Council, to take his seat in the Council in which he was elected after satisfying the pre-conditions for taking his seat as stated under section 23 of Local Government (Basic Constitutional and Transition Decree No. 36 of 1998) which conditions the appellant has not satisfied till date.
8. Swearing in the appellant or the appellant being allowed to take over ‘Ward F’ of Lagos Mainland Local Government, without the court looking into and determining that the appellant was a candidate and duly elected will undermine section 7 of 1999 Constitution.
9. The third respondent herein is not known to law because the INEC that conducted election into Wards of Local Government on the 5th day of December, 1998, is, INEC simpliciter, not Lagos State Chapter. The third respondent herein is neither the INEC that conducted the election, nor the INEC created under section 153, or section 197 of 1999 Constitution of the Federal Republic of Nigeria.

The instant matter was commenced at the court below by way of originating summons.

The substantive reliefs sought in the originating summon are: