Sunday Ogunbiyi Obasanya V. Matthias Akinbowale Sola Babafemi & Ors. (2000)

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GALADIMA, J .C.A.

This appeal is against the ruling of the Lagos State High Court (Coram Oke J.) delivered on 14/7/99. The Appellant was the 1st defendant in the trial Court whilst the 1st Respondent was the plaintiff and the 2nd and 3rd Respondents were the 2nd and 3rd defendants respectively.

The 1st Respondent had filed an originating motion against the appellant, 2nd and 3rd respondents praying the lower court for the following reliefs:

“1. DECLARATION that the applicant was and is still the duly screened nominated and elected candidate and councillor of Alliance for Democracy (AD) for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State of Nigeria conducted on the 5th day of December, 1998.

2. PERPETUAL INJUNCTION restraining the first respondent from parading himself and or acting as the AD elected councillor for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State of Nigeria.
3. AN ORDER restraining the second and third respondents from recognising the first respondent as the duly elected candidate or councillor of AD for Lagos, Mainland Local Government Area of Lagos of Nigeria.
4. AN ORDER of mandamus compelling the 2nd Respondent to issue certificate of election to the Appellant and not the first respondent or any other person.
5. AN ORDER of mandamus compelling the 3rd respondent to recognise the applicant as the duly elected candidate of AD for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State of Nigeria.
6. AN ORDER compelling the second Respondent to withdraw from the 1st Respondent and cancel the certificate of election given to the first Respondent.

The Appellant filed a conditional memorandum of appearance and a notice of preliminary objection challenging the competence of the 1st respondent’s action and the jurisdiction of the lower court to entertain the same. The trial Court after listening to the addresses of counsel dismissed the preliminary objection. The Appellant being dissatisfied with this decision now appealed to this Court by filing notice of appeal containing 5 grounds; which are reproduced without their particulars as follows:

“Ground One

The learned trial Judge erred in law when she held that the High Court of Lagos State have jurisdiction to entertain the plaintiff/respondent’s originating motion.

Ground Two

The learned trial Judge erred in law when she held that the plaintiff/respondent was not challenging the election of the appellant. But the alleged fraud raised in the originating motion.

Ground Three

The learned trial Judge erred in law when she held that the Lagos State High Court had jurisdiction to entertain the plaintiff/respondent suit on the ground that the Independent National Electoral Commission (INEC) is an independent body and not agency of the Federal Government.

Ground 4

The learned trial Judge erred in law when she held that the plaintiff/respondent action was not statute-barred in that the cause of action arose when the fraud was discovered as stated in paragraphs 16-18 of the Further and Better Affidavit filed by the plaintiff/respondent.

Ground 5