Accord Party & Ors V. The Governor of Kwara State & Ors (2009)

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JUSTICE IGNATIUS IGWE AGUBE, J.C.A.

This appeal is against the Ruling of the High Court of Justice, Kwara State, Ilorin Division, delivered by the Honourable Justice E. B. Mohammed on the 27th of November, 2007, striking out the Plaintiffs/Appellants’ suit No. KWS/133/07 for want of jurisdiction.

It would be recalled that the Plaintiffs/Appellants had on the 9th of November, 2007, by way of Originating Summons dated 8th November, 2007, sought for the following questions to be determined by the High Court:-

1. Whether the 1st and 2nd Defendants could lawfully and validly constitute the 3rd Defendant inspite of the judgment of the Supreme Court in the Suit of Governor of Kwara State & Ors. v. Alhaji Issa Ojibara Suit No. SC/166/2004 delivered on 15/12/2006?
2. Whether the 3rd Defendant constituted by the 1st and 2nd Defendants inspite of the Supreme Court decision can validly and legally conduct election into the Local Government Council Areas of Kwara State?
3. Whether it is not the Alhaji Issa Ojibara led KWASIEC who were reinstated by the Supreme Court in the Judgment delivered on 15/12/2006 in Suit No. SC/166/04 that has the constitutional and legal right to conduct election into the Local Government Council Areas of Kwara State?
4. Whether the Election conducted by the 3rd Defendant into the Local Government Council Areas of Kwara State on 3rd November, 2007, was not illegal, ultra vires, null and void?
5. Whether the appointment and Constitution of the 3rd Defendant by the 1st Defendant was not contemptuous, illegal, ultra vires, null and void?

The Plaintiffs/Appellants also sought for the following Reliefs in consequence of the determination of the above questions:-

1. A declaration that the appointment and Constitution of the 3rd Defendant by the 1st Defendant is contemptuous, illegal, ultra vires, unconstitutional, null and void;
2. A declaration that the election conducted by 3rd Defendant on 3/11/07 at the instruction and directive of the 1st Defendant is illegal, ultra vires, unconstitutional, null and void;
3. A declaration that it is the Alhaji Issa Ojibara led Commission that was reinstated by the Supreme Court in its Judgment delivered on 15/12/06 in Suit No. SC/166/2004 that can lawfully and constitutionally conduct Local Government Election in Kwara State until the expiration of their 5 years constitutionally guaranteed tenure of office;
4. An Order setting the election conducted by the 3rd Defendant on 3/11/07 pending the time the reinstated Alhaji Isaa Ojibara led Commission will conduct fresh election into all the 16 Local Government Councils in Kwara State;
5. An Order directing the 1st Defendant to reinstate the legally constituted KWASIEC as directed by the Supreme Court in its Judgment of 15/12/06 in the case of Governor of Kwara State & Ors. v. Alh. Issa Ojibara & Ors Suit No. SC/166/2006;
6. An Order of perpetual injunction restraining the 1st Defendant, agents or privies from swearing in or recognizing the Chairmen and Councillors purportedly elected on 3/11/07 at the election conducted by the 3rd Defendant.

In support of the Originating Summons was a twenty-six paragraph affidavit sworn to by Elder Kayode Kuti, the Chairman of All Parties Congress in Kwara State to which Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’ were annexed together with a written address.

The Plaintiffs/Appellants further filed a Motion on Notice which sought for an order of interlocutory injunction restraining the 1st Respondent, agents, privies or anybody claiming through him or for him from swearing in the Chairmen, Vice Chairmen and Councillors elected on 3/11/07 pursuant to the election conducted by the 3rd Respondent.

On the 21st day of November, 2007, J.A. Mumuni Esq., the Learned Director of Public Prosecutions, Kwara State Ministry of Justice, entered conditional appearance and filed a Notice of Preliminary Objection on behalf of the 1st – 3rd Defendants/Respondents on the following Grounds:-

1. That the Honourable court had no requisite competence and/or jurisdiction to hear and determine the Applicants/Respondents’ Suit as it were;
2. That Applicants/Respondents’ suit was not properly constituted thus same was incompetent.

The Learned Director of Public Prosecutions (hereinafter to be addressed as the learned D.P.P.) also filed a Written Address in support of the Notice of Preliminary Objection on the same date.

On the 22nd day of November, 2007 the firm of Yusuf O. Ali & Co. entered conditional appearance on behalf of the 3rd Defendant/Respondent which was also accompanied by a Notice of Preliminary Objection and a Written Address in support thereof.

Their objection was predicated on the following Grounds:-

1. That the Suit constituted a flagrant abuse of court’s process;
2. That the Suit disclosed no cause of action;
3. That the Applicants had no locus standi to institute and maintain this action;
4. That the action was badly and improperly constituted and is incurably defective; and
5. That action was unconstitutional.

On the 26th of November, 2007, the respective Written Addresses on the Preliminary Objection were adopted and the Plaintiffs/Appellants’ Counsel replied orally to the submissions of the learned Counsel for the respective objectors, thus culminating in the Ruling the subject of this Appeal.

Dissatisfied with the Ruling of the lower Court, the Appellants gave Notice of Appeal with two Grounds which can be found at pages 105 to 107 of the Record of Proceedings. Briefs were duly exchanged by the parties when the Record of Appeal was transmitted to this Honourable Court and in the Brief settled by Chief Teju Oguntoye for the Appellants, a sole issue was formulated for determination in the following terms:-

“Whether it is not the State High Court that has jurisdiction to determine the issues involved in the Claimants/Appellants Suit (Grounds 1 – 3).”

As for the 1st and 2nd Respondents, the learned D.P.P. (J.A. Mumuni Esq.), in the Brief settled on their behalf distilled three issues which he feels are germane to the determination of the Appeal, as follows:-

“i. Whether the Appellants have any complain that constitutes serious breach of their right sufficient enough to confer on them a right of action against the Respondents (distilled from ground one);

“ii. Whether the reliefs sought by the Appellants in the Originating Summons were in the main (sic) pertain to the conduct of Local Government Election held on 3rd November, 2007 (distilled from ground two);

“iii. Whether it is the Kwara State Local Government Election Tribunal that can entertain the principal reliefs of the Appellants in the Originating Summons.”

On the part of the 3rd Defendant, learned Counsel K.K. Eleja Esq. in the Brief settled by him raised two issues for determination which are also reproduced hereunder:-

“1. Whether the trial Court was not right to have concluded that the grouse of the Appellants was in the main against the Local government Elections conducted on 3rd November, 2007, as per reliefs 2, 4 and 6 and that other reliefs were merely ancillary thereto and in proceeding to strike out the suit for want of jurisdiction?

“2. Whether the decision of the trial Court striking out the Appellants case was not supportable on the grounds of abuse of Court process, want of locus standi, for being badly constituted and defective and for being unconstitutional?

Having carefully perused the issues formulated by Counsel in their respective Briefs, I have synthesized them together and come out with the following three issues which I hope shall determine the appeal in the context of the preliminary objections raised in the lower Court by the Respondents as follows:-

ISSUES

“1. Whether it is not the State High Court that has jurisdiction to determine the issues involved in the Claimants/Appellants;

“2. Whether the Appellants have any complaint that constitutes a serious breach of their right sufficient enough to confer on them a right of action against the Respondents;

“3. Whether the decision of the trial Court striking out the Appellants’ case was not supportable on the grounds of abuse of Court process, want of locus standi, for being badly constituted and defective and for being unconstitutional?”

ISSUE NUMBER 1 (ONE)

On this issue which is that formulated by the Appellants, the learned Counsel posed a question as to whether the issues raised in the lower Court were pre-or post Election matters and argued that if they were post-election matters the Court will certainly lack jurisdiction but that if they were pre-election matters then, the lower Court would be seised of the jurisdiction to entertain same.

He however, contended that the issues before the lower Court were pre-election matters and as such the lower Court has the unqualified jurisdiction to entertain same. Citing the case of Tukur v. Government of Gongola State (1989) 9 S.C.N.J. 1; Hon. Justice Kalu Anyah & Anor. v. Dr. Festus Iyayi (1993) 9 SCNJ 53; Hon. Muyiwa Inakoju, Ibadan S.E. v. Hon. Adeleke (2007) 1 S.C.N.J 1 at 10; the learned Counsel further contended that the law is settled that jurisdiction of the Court to determine a particular case is determined by the claim(s) of the Plaintiffs/Claimants and that jurisdiction should be examined not when it is invoked but when the cause of action arose. Peter Obi v. INEC & 7 Ors. (2007) 1 N.W.L.R. (pt. 1046) 565 at 580.

On when the cause of action arose in the case, the learned Counsel pointed out that it arose when there were parallel Electoral Commissions in Kwara State with the two of them claiming the right to conduct the 2007 Local Government Elections. He maintained that this fact is borne out from the Originating Summons, the affidavit in support and the Exhibit annexed thereto which disclose the facts of the case.

It was further submitted that from the facts disclosed in the affidavit and the Exhibits, the events that gave rise to the cause of action predated the conduct of the Election of 3/11/07 and that with the above scenario, the Claimants/Plaintiffs as major stake holders had no option than to approach the Court to ventilate their grievances.

Learned Counsel for the Appellant again maintained that the Plaintiffs as dramatis personae in the election have sufficient interest in the issue of the body charged with the conduct of the said election particularly by virtue of Section 5(g) of the Kwara State, Electoral Commission, 2004.

On the nature of the claim of the Plaintiffs, it was submitted again by the learned Counsel for the Appellants that in sum the Claimants’ claim that the 3rd Respondent cannot legally and lawfully conduct Local Government Election, until the issue of the authentic Electoral Commission was/is resolved via the determination of Suit No. KWS/118/2007 and the purported election conducted by the 3rd Respondent are declared null and void.

From the foregoing, he insisted that the issues and claims of the Claimants in the Originating Summons are not issues within the purview of the Local Government Election Tribunal and that by virtue of Sections 6(b) and 272(1) of the 1999 Constitution of the Federal Republic of Nigeria, it is the High Court that has jurisdiction to entertain the suit.

On the contention by the learned trial Judge of the lower Court that the claims of the Claimants/Appellants were covered by the provisions of Section 97 of the Kwara State Electoral Law, 2004, he disagreed referring to the provisions aforesaid and submitted that the Section relates to post election returns i.e. the issue of whether a person was rightly or wrongly declared winner of an election. For this submission he placed reliance on the case of Doukpolagha v. George (1992) 4 N.W.L.R. (pt. 236) at 444 on the nature of Election Tribunals. Relying again on the case of Obi v. INEC (supra) at 582, the learned Counsel for the Appellants posited that the Plaintiff did not participate in an election and even warned the 3rd Respondent in writing on the consequence of embarking on the election which was then the subject of pending litigation. Paragraphs 2, 13, 14, 15, 16, 17 and 18 of the Affidavit in support of the Originating Summons and Exhibits C, D, E and F annexed thereto were alluded to together with pages 26 – 33 of the Records to buttress the above submission.

The learned Counsel again referred us to Vaswani v. Savalakh (1972) ANLR (Reprint) at 922; Military Governor, Lagos State & Ors. v. Chief Emeka Ojukwu (1986) ANLR (Reprint) 233; The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 N.W.L.R. (pt. 159) at 514 and Basil O. Ezeagbu & 1. Or. v. First Africa Trust Bank Ltd. & 1 Or. (1992) 1 N.W.L.R. (pt. 220) 699 and further canvassed the point that the Law Courts have always viewed with seriousness the deliberate and conscious act of a party to a suit to take the Law into his hands or foist the Court with a position of helplessness and would always reverse what such erring party did while the suit was pending.

Learned Counsel for the Appellants finally noted that inspite of Exhibit B as contained in pages 26 to 28 of the Records, the 3rd Respondent went on to conduct the Local Government Election on 3/11/07 and accordingly the chain of events predated the election held on 3/11/07 and only the State High Court can afford the Plaintiffs a forum to ventilate their grievances under the maxim ubi jus ibi remedium. He urged the court to allow the appeal.

Reacting to the above submissions, the Learned D.P.P. in his argument on Issue Number 2 of the 1st and 2nd Respondents’ Brief which in my view is a response to Appellants’ submissions on the question of the appropriate court seised with the jurisdiction to hear and determine the claim of the Appellants, recalled the issues that were called for determination before the trial Court and the Reliefs sought submitting that a cursory reading of the issues and reliefs sought in the lower Court would reveal that the Court below was being called upon to invalidate the election conducted by the 3rd Defendant/Respondent on 3rd November, 2007, which is the crux of the matter.

The Learned D.P.P. maintained that Reliefs 2, 3, 4 and 6 are the kernel of the Appellants’ claim which are mainly complaints of the conduct of the November 3, 2007 Local Government Election. They are principal reliefs which form the pivot of other ancillary reliefs and upon which they depend, he further insisted and relying on Tukur v. Government of Gongola State (1989) 9 S.C.N.J 1 contended that it is trite that whatever fate suffered by the principal relief(s) must be suffered by the ancillary relief(s).

He therefore urged this Honourable Court to hold that the main reliefs of the Appellants in the Originating Summons pertain to the conduct of the Local Government Election by the 3rd Respondent on the 3rd November, 2007.

In response to the contention of the Appellants at page 3 of their Brief that they, as major and principal stakeholders had the locus to approach the court to ventilate their grievances following the defiant and total disregard of the judgment of the Supreme Court in Suit Number SC/166/2004 OF 15/12/06 (Exhibit A) which reinstated Alhaji Issa Ojibara’s Electoral Commission, when the 1st Respondent went on to reconstitute a new Electoral Commission which conducted the election of 3/11/07, it was submitted by the Learned D.P.P. in his argument on the 1st and 2nd Respondents’ Issue No. 1 (one) that the Reliefs of the Appellants were tied to the judgment of the Supreme Court aforesaid and that there is nothing in that judgment that could give the Appellants any interest that would confer any cause of action on them against the Respondents.

Secondly, the Learned D.P.P. further argued, there is nothing in the affidavit evidence before the court below to show any legal interest derivable by them in the said judgment that could ground or confer on them any right of action on them other than their alleged “stakeholdersm” and busybody adventurism.

It was further submitted, that there was no reasonable cause of action based on Exhibit A to which the Appellants were no party and upon which the Appellants seek for the nullification of the election of 3rd November, 2007. For this submission he cited Thomas v. Olufosoye (1986) 1 N.W.L.R. (pt. 19) 669 at 682 which defines cause of action and the criteria for the conferment of cause of action on a party seeking to ventilate his grievances in a court of law.

Citing again, the case of Balogun v. Adejobi (1995) 2 N.W.L.R. (pt. 376) 131 at 149; it was also contended by the Learned D.P.P. that the Appellants not being parties or privy to the judgment of the Supreme Court cannot enforce same nor benefit there from and accordingly have no legal competence to institute the action on the principles of res judicata, more so, as they have not shown that they were aware of the suit and participated in such a way that they could be regarded as a party.

Placing reliance again on the case of FMB Ltd. v. NDIC (1995) 6 N.W.L.R. (pt. 400) 226 at 244 and Thomas v. Olufosoye (supra); the Learned D.P.P. asserted that from the face of the Originating Summons and the affidavit in support, the Appellants have not shown any cognizable interest to entitle them to approach the court for the enforcement and/or benefit of Exhibit A.

Still on the concept of locus standi, it was posited that it goes to the jurisdiction of the Court which is beyond busy-body adventurism but must be rooted in the competence of the party and that the Appellants being strangers to Exhibit A, their action disclosed no cause of action. Balogun v. Adejobi (supra) referred. He then urged us to hold that the lower Court was right in holding that the complaints of the Appellants contained in Exhibit C, D, E and F do not constitute any serious breach of their right sufficient enough to ground or confer them with a cause of action against the Defendants/Applicants and resolve the issue against the Appellants.

On the issue as to whether it is the Kwara State High Court that can entertain the principal Reliefs of the Appellants’ Originating Summons which is the same as their Issue No.3, the Learned D.P.P. reiterated that the principal reliefs brought to the lower Court by the Appellants were in the main against the conduct of the Local Government Election by the 3rd Defendant on 3/11/07 and that by virtue of Section 97 of the Kwara State Electoral Law 2004; it is the Kwara State Election Tribunal that can hear complaints bordering on the conduct of Local Government Election in the State.

According to the Learned Director all the complaints if at all, by the Appellants were figments of their imaginations and on the validity of the election conducted by the 3rd Respondent on 3/11/07 which the Court below rightly held was within the purview of Section 97 of the Kwara State Electoral Law, 2004. Furthermore it was contended, even if the cause of action pre-dated the election of 3/11/07, from 15/12/06 when the Supreme Court gave the judgment and there were two parallel commissions, the Learned D.P.P. maintained, the action was commenced after the three months statutory period limited for commencement of action against the Respondents who are Public Officers and accordingly the Appellants’ suit was statute-barred.

Moreover, it was further submitted, the Appellants had no cause of action which predated 3/11/07 Local Government Election which explained why they did not commence the Originating Summons before the election.

In the circumstance he relied on Tukur v. Government of Gongola State (1989) 4 N.W.L.R. (pt. 117) 517 to urge us to hold that the principal reliefs of the Appellants ought to have been entertained by the Kwara State Election Tribunal by virtue of Section 97 of the Kwara State Electoral Act. He finally urged us not to disturb the findings of the lower Court that the Appellants lacked locus standi but dismiss the Appellants Appeal.

The Appellants filed a Reply Brief to the 1st and 2nd Respondents’ Brief which shall be alluded to in the determination of the issues in due course. On the whole, counsel for the Appellants urged this Honourable Court to discountenance the submissions of the learned D.P.P and allow the Appellants’ appeal in its entirety.

On the part of the 3rd Respondents, it was submitted on their Issue Number One (1) which is akin to the 1st issue raised by the Learned Counsel for the Appellants and Issue II of the 1st and 2nd Respondents (thus also supporting the views expressed by the Court below and the Learned D.P.P. on behalf of the 1st and 2nd Respondents), that from paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 25 of the affidavit in support of the Originating Summons, the suit was targeted at the Local Government Elections conducted by the 3rd Respondent on 3/11/07 and that the court rightly held that other reliefs sought by the Appellants were ancillary to the claims for the nullification of the election of 3/11/07.

It was further agued by the learned counsel for the 3rd Respondent that even from the Appellants showing, the said Alhaji Ojibara and his colleagues on the commission filed an action concerning their entitlements by virtue of the decision of the Supreme Court which was given in their favour and which action is evident by Exhibit B to the Originating Summons and as such it cannot be contended that the Appellants’ grouse was with the non-reinstatement of Alhaji Issa Ojibara and his team but was with the conduct of the Local Government Elections by the 3rd Respondents.

The court below, he therefore insisted, was justified in describing all other reliefs sought by the Plaintiffs/Appellants on the conduct of the elections as principal or substantive which the remaining reliefs are merely ancillary.

Placing reliance on the case of Madakolu v. Nkemdilim (1962) 2 S.C.N.L.R. 341 at 348, it was again contended by the 3rd Respondent’s counsel that because of the reliefs concerning the conduct of the Local Government Elections, there was a disqualifying factor which deprived the trial court of the jurisdiction to hear the case and which would have rendered the proceedings of the lower court a nullity if the trial court had failed to terminate same by upholding the objection.

He therefore urged this court to hold that the originating summons and Exhibits C, D, and F attached thereto do not constitute a breach of the rights to grant or confer the Appellants with a cause of action recognizable by the trial court. The Learned Counsel for the 3rd Respondent therefore urged the court to resolve the issue against the Appellants and dismiss all the grounds of Appeal.

It would be recalled that the 3rd Respondent filed a Notice to contend that the judgment of the Lower Court should be affirmed on Grounds other than those relied upon by the court below to strike out the Plaintiffs/Appellants’ claim, pursuant to order 9 rule 2 of the Court of Appeal Rules 2007. The said Notice was filed on the 27th day of May, 2008 and it is upon this Notice that issue 2 of the 3rd Respondent is predicated. On this issue it was argued by the learned counsel that the Respondents objected to the Appellants’ suit in the lower court on diverse grounds out of which the learned trial judge pronounced on one only which necessitated the striking out of the case. The learned trial judge having not made any adverse resolution of the other grounds against the Respondents the learned counsel posited, by virtue of Order 9 Rule 2, they (Respondents) are entitled to pray this court to sustain the striking out of the Plaintiffs/Appellants’ suit on the grounds stated in the Notice to contend.

On the first ground of contention that the action constituted an abuse of court process, he referred to the Originating Summons and the supporting affidavit especially paragraph 15 thereof and Exhibit B annexed there to which would reveal that Alhaji Issa Ojibara and other colleagues of the 3rd Respondent at a point had already filed an action before the Kwara State High Court on the 9th of October, 2007, a month earlier than the date the case now on appeal was filed on the 9th November, 2007.

Also, the Learned Counsel noted, the questions for determination and the reliefs sought in the Originating Summons are basically same with those filed earlier by Alhaji Ojibara & Ors on the 9th day of October, 2007. Again the Learned Counsel contended, the suit filed on the 9th October, 2007, was yet to be decided when the suit now on appeal was filed against same Respondents. Furthermore, the Appellants have been unable to show their authority to file their action now on Appeal in other words, the two suits were filed and subsisting simultaneously before the same court.

Relying on the case of Saraki v. Kotoye (1992) 9 N.W.L.R. (pt. 264) 156 at 188-189; it was submitted that in the face of lack of authority or interests to file an action seeking to enforce a decision of the Supreme Court in favour of others who on their own are also seeking to enforce the judgment, there were not only multiplicity of actions but that the suit now on appeal was filed with a view to annoying or over reaching the Respondents and therefore constituted an abuse of court process.

It was also contended that there are evidence of frivolity and recklessness in the Appellants attempting to enforce a judgment which was said to have been given in favour of third parties who were claimants in Exhibit B when such third parties had earlier instituted their own suit to ventilate their grievances and which action was yet to be determined.

Upon the above premises, we were urged to hold that the action before the lower court constituted an abuse of court process and also to sustain the decision of the trial court striking out the Appellants suit on this ground.

On the second ground, it was submitted that having regards to the reliefs sought by the Appellants in the lower court, the Appellants lacked the locus standi to institute the case as their claim was tied to Exhibit A the judgment of the Supreme Court in suit No. SC/166/2004 at pages 15-25 which they seek to enforce whereas there is Exhibit B at pages 54-56 which is designed to enforce the judgment in Exhibit A by the persons in favour of whom the said judgment was entered. The learned counsel then wondered the nexus between the Appellants herein to the said Exhibit A so as to vest them with the requisite interest or locus standi to complain about the non-observance of the said judgment.

Recalling that it was the 3rd Respondent as opposed to any individual who in law was entitled to conduct elections and that question 1, 2, 3, 4 and 5 in the Originating Summons of the Appellants concern the entitlement of Alhaji Issa Ojibara and his colleagues to benefit from Exhibit A, it was submitted on the authorities of Thomas v. Olufosoye (1986) 1 N.W.L.R. (pt. 19) 669 at 682 – 683 and FMB v. NDIC (1995) 6 N.W.L.R. (pt. 400) 226 at 230 that the Appellants lack the locus standi and their case ought to be struck out on that score because locus standi is a jurisdictional issue and the Appellants not being able to show its existence, they were meddlesome interlopers.

Relying again on Balogun v. Adejobi (1995) 2 N.W.L.R. (pt. 376) 131 at 149, it was finally submitted on this ground that the Appellants being neither parties nor privies to Exhibit A are strangers and meddlesome interlopers and as such the decision of the lower court should be upheld.

On the further ground to contend which is that the action of Appellants was improperly constituted and incurably defective learned counsel to the 3rd Respondent alluded to Issue number 4 and Relief 4 in the Originating Summons which relate to elections on which some persons have acquired vested interest and rights by its conduct on 3rd November, 2007. Also learned counsel maintained that neither those third parties nor the political parties that contested and won the elections were joined as parties to the proceedings. Referring particularly to paragraph 19 of the affidavit in support of the Originating Summons where 3rd Respondents was stated to have conducted the election of 3/11/07 and further that the current chairman and members of the commission were not joined as Defendants/Appellants and since their respective rights were called in issue, it was submitted by the learned counsel that the composition of the case violated their rights to be heard.

It was submitted further still on this point on the authority of Green v. Green (1987) 3 N.W.L.R. (pt. 61) 480 at 499-500 that proper and necessary parties were not before the court and the court below could not have effectively and fairly adjudicated on the matter as it was constituted, without infringing on the provisions of section 36 of the 1999 Constitution. On this score he urged again on us to uphold the striking out of the Plaintiffs/Appellants’ case by the lower court.

On the last and final ground, it is the contention of the learned counsel for the 3rd Respondent that this Honourable court can only entertain a matter where there is a breach of civil rights or obligations of a person in accordance with section 6 (6) (b) of the 1999 Constitution. As regards this case, it is submitted by the learned counsel that by virtue of the Kwara state Electoral Law, 2004, which is applicable to conduct of Local Government Elections in the State, such conduct or exercise is not an individual thing but the responsibility of the 3rd Respondent as a commission. The Appellants, according to the 3rd Respondents’ Counsel, have not been able to show those rights of theirs that have been or were likely to be infringed before rushing to file the action now on appeal and accordingly were not able to bring themselves within the provisions of the Constitution which authorizes filing of suits in deserving cases. It therefore follows that the Appellants did not disclose any reasonable cause of action, the learned counsel added. Thomas v. Olufosoye (Supra) was cited in support of the above assertion to finally urge this court to uphold the decision of the trial court striking out the Appellants’ case and resolving their issue 2 against the Appellants.

It would be recalled that the Appellants also filed a Reply Brief to the 3rd Respondent’s Brief on the 18th of February, 2009, which was deemed filed on the 10th of March, 2009. The arguments in the said Reply Brief shall also be considered in the course of resolving the issues formulated by parties in this appeal. On the whole, the learned counsel for the Appellants urged the court to discountenance all the submissions of the learned counsel for the 3rd Respondents and allow the appeal on all grounds.

RESOLUTION OF ISSUES

ISSUE NUMBER 1 (ONE):- WHETHER IT IS NOT THE STATE HIGH COURT THAT HAS JURISDICTION TO DETERMINE THE ISSUES INVOLVED?

In the resolution of this issue, it is pertinent to note that parties are ad idem and the law is settled that in determining whether a court is seised with the requisite jurisdiction to entertain a particular case, it is the claim of the Plaintiff as endorsed in the Writ or as in this case the affidavit in support of the Originating Summons and the Reliefs sought that ought to be considered and nothing else. See Boothia Maritima Inc. v. O.T. & T.A Ltd (2001) 8 N.W.L.R (pt. 716) 534 at 543; Inakoju v. Adeleke (2007) 4 N.W.L.R (pt. 1025) 423 S.C; Global Transport Oceanic S.A & Anor v. Free Enterprises (Nig) Ltd. (2001) 12 W.R.N 136 at 156 paras. 15 – 25 per Kalgo J.S.C; Tukur v. Governor of Gongola State (1989) 9 S.C.N.J.1 and Justice Kalu Anya & Anor v. Dr. Festus Iyayi (1993) 9 S.C.N.J 5.

For instance, Tobi, J.S.C in Inakoju v. Adeleke (supra) at page 57, succinctly stated the position of the law on the determination of jurisdiction in a given case particularly in suits like the present appeal thus:-

“There is a common agreement that in the determination of jurisdiction, the court process to be used is the pleadings of the Plaintiff which is the statement of claim. As this action is commenced by Originating Summons, the court process to be used is the affidavit in support of the summons. In other words, the court will not look at the counter affidavit even if filed…Put differently, it is the case put forward by the Plaintiff that determines the jurisdiction of the court. See Monye v. Anyichie (2005) 8 W.N.R 1 at 22; NDIC v. CBN (2002) 18 W.R.N 1; Elabanjo v. Dawodu (2006) 15 N.W.L.R (pt 101) 76; Okulate v. Awosanya (2000) 2 N.W.L.R (pt. 646) 530 at 556 – 557; Adeyemi v. Opeyori (1976) 9 -10 S.C 31 at 51; Tukur v. Governor of Gongola State (1989) All N.L.R. 579 at 599.” Â

It is also trite that in some cases, the court may need to hear evidence before determining jurisdiction but this may not be necessary where sufficient materials are placed before the court from the affidavit of the Plaintiff and the exhibits annexed thereto as in the appeal at hand. See A.G Anambra State v. A. G. of the Federation (1993) 6 N.W.L.R (pt 303) 692. From the claim of the Plaintiffs/Appellants, it is clear that Constitutional as well as legal issues have arisen and since jurisdiction is a question of law, the court must scrupulously and microscopically scrutinize the totality of the Constitutional provisions and the Local Government Electoral Law of Kwara State that govern the issues for determination.

Going by the submissions of counsel on both sides, whereas the Appellants contend that the issues raised in the lower court were pre- election matters, in which case only the High Court of Kwara State has jurisdiction by virtue of Sections 6(6) (a) and (b) and 272(1) of the 1999 Constitution to entertain them, the Respondents argue per contra that the issues raised there at were on post- election matters and as such it is the Kwara State Local Government Election Tribunal that is vested with the requisite jurisdiction pursuant to Section 97 of the Kwara State Local Government Electoral Law, 2004, to determine same. Now, Section 6(6) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:-

“(6) The judicial powers vested in accordance with theforegoing provisions of this section –

(a) Shall extend, not withstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person”

As for Section 272(1) which governs the jurisdiction of the High Court of a State, it stipulates inter alia:

“Subject to the provisions of Section 251 and other provisions of the Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

Before reproducing the provisions of section 97 of the Kwara State Local Government Electoral Law, it is meet to first cite the provisions of section 96 thereof which is captioned:

‘PART III. Determination of Election Petitions Arising from Election.’

“96. Proceedings to Question an Election

(1) No election and no return at an election under this law, shall be questioned in any manner other than by petition complaining of an undue election or undue return (in this Law referred to as an “election petition”) presented to the competent Tribunal in accordance with the provisions of this Law, and in which the person elected or returned is joined as a party. –

(2) In this section, “Tribunal” means “Election Tribunal” established by this Law.”

Section 97 which provides for the establishment and jurisdiction of Election Tribunals to question Local Government Elections conducted by the Kwara State Electoral Commission under Sections 1 and 2 of the Kwara State Local Government Electoral Law, CAP. K32, 2004, on the other hand, states as follows:

“There shall be established in the State one or more Election Tribunals (in this Law referred to as “Local Government Election Tribunal”) which shall to the exclusion of any other Tribunal have original jurisdiction to hear and determine any question as to whether-

(a) any person has been validly elected to the office of the Chairman, Vice Chairman or Councillor;

(b) a question or petition brought before the Local Government Election Tribunal has been properly or improperly brought. ”

Going by the authorities above cited, we shall now see whether the claim of the Plaintiffs/Appellants in the lower court related or relates to pre-election or post-election matters so as to vest either the High Court of Kwara State or the Kwara State Local Government Election Tribunal with the requisite jurisdictions to hear the said Appellants’ claim. A look at pages 1 and 2 of the Record of Proceedings would demonstrate that the questions submitted for determination from the Originating Summons and the Reliefs were:-

QUESTIONS:-

1. Whether the 1st and 2nd Defendants could lawfully and validly constitute the 3rd Defendant inspite of the judgment of the Supreme Court in the Suit of Governor of Kwara State & Ors. v. Alhaji 1ssa Ojibara Suit No. SC/166/2004 delivered on 15/12/2006?
2. Whether the 3rd Defendant constituted by the 1st and 2nd Defendants inspite of the Supreme Court decision can validly and legally conduct election into the Local Government Council Areas of Kwara State?
3. Whether it is not the Alhaji Issa Ojibara led KWASIEC who were reinstated by Supreme Court in the Judgment delivered on 15/12/2006 in Suit No. SC/166/04 that has the constitutional and legal right to conduct election into the Local Government Council Areas of Kwara State?
4. Whether the Election conducted by the 3rd Defendant into the Local Government Council Areas of Kwara State on 3rd November, 2007, was not illegal, ultra vires, null and void?
5. Whether the appointment and Constitution of the 3rd Defendant by the 1st Defendant was not contemptuous, illegal, ultra vires, null and void?

RELIEFS:-

1. A declaration that the appointment and Constitution of the 3rd Defendant by the 1st Defendant is contemptuous, illegal, ultra vires, unconstitutional, null and void;
2. A declaration that the election conducted by 3rd Defendant on 3/11/07 at the instruction and directive of the 1st Defendant is illegal, ultra vires, unconstitutional, null and void;
3. A declaration that it is the Alhaji Issa Ojibara led Commission that was reinstated by the Supreme Court in its Judgment delivered on 15/12/06 in Suit No. SC/166/2004 that can lawfully and constitutionally conduct Local Government Election in Kwara State;
4. An Order setting the election conducted by the 3rd Defendant on 3/11/07 pending the time the reinstated Alhaji Isaa Ojibara led Commission will conduct fresh election into all the 16 Local Government Councils in Kwara State;
5. An Order directing the 1st Defendant to reinstate the legally constituted KWASIEC as directed by the Supreme Court in its Judgment of 15/12/06 in the case of Governor of Kwara State & Ors. v. Alh. Issa Ojibara & Ors Suit No. SC/166/2006;
6. An Order of perpetual injunction restraining the 1st Defendant, agents or privies from swearing in or recognizing the Chairmen and Councillors purportedly elected on 3/11/07 at the election conducted by the 3rd Defendant.

From the averments in the affidavit in support of the Originating Summons, as can be found in pages 4 – 6 of the Records, which averments represent the pleadings of the Appellants, the questions that fell for determination and the reliefs sought in the lower court, the Plaintiffs/Appellants were/are at all times material to this case, members of five political parties duly registered and recognized under Section 222 of the Constitution of the Federal Republic of Nigeria, 1999, as Accord Party (AP), Action Congress (AC), All Nigerian People’s Party (ANPP), Democratic People’s Party (OPP) and Progressive Peoples’ Alliance (PPA). They have come under an umbrella body styled All Parties Congress in Kwara State to institute this proceeding.

By paragraph 1 of the affidavit in support, Elder Kayode Kuti who is the deponent is the Chairman of All Parties Congress in the State and by virtue of his position he avers that he is familiar with the facts of the suit and had been authorized by the Plaintiffs/Appellants to depose to the affidavit on their behalf. The Plaintiffs/Appellants aver and assert that they are political parties with large membership and followership in Kwara State. See paragraphs 2 – 4 of the affidavit.

In paragraphs 5 – 10 thereof, the Appellants also aver that they know that only political parties can sponsor candidate(s) for either General Elections or Local Government Elections, under the 1999 Constitution of the Federal Republic of Nigeria. According to them, on the 15th December, 2006, the Supreme Court of Nigeria gave judgment in Suit No. SC/166/2004 between Governor of Kwara State & Ors. v. Alhaji Issa Ojibara & Ors which is annexed as Exhibit A to the affidavit. The said judgment was said to have affirmed the decision of this court (Court of Appeal, Ilorin Division) delivered on 21/4/2004 wherein it was ordered that the Chairman and members of the Kwara State Independent Electoral Commission (KWASIEC) dissolved by the 1st Defendant in June, 2003, be re-instated but inspite of the said judgment, the 1st Defendant/Respondent reconstituted the 3rd Defendant and charged her to conduct Local Government Elections.

The 1st Defendant/Respondent allegedly constituted the 3rd Defendant/Respondent with members of his political party – the Peoples Democratic Party (PDP), – in defiance of the Supreme Court judgment and that the composition of the 3rd Defendant was in contravention of the Constitution and the Supreme Court judgment.

In paragraphs 11 – 16, it was further averred that pursuant to the 1st Defendant’s/Respondent’s directive, the 3rd Defendant/Respondent fixed 3/11/2007 for election into offices in the 16 Local Government Areas of Kwara State and in furtherance of the said directive, the Plaintiffs/Appellants were invited along with other political parties for an “interactive” meeting on the 5th October, 2007, at the office of the 3rd Defendant/Respondent. At the said meeting, the Chairman of the 3rd Defendant/Respondent informed the representatives of the Plaintiffs/Appellants and others present that the local Government Election will take place on the 3rd of November, 2007.

Attempts were however made to dissuade and convince the 3rd Respondent on the illegality of their plan but the said 3rd Respondent rebuffed the Appellants. The Appellants also deposed to the fact that they were aware that Alhaji Issa Ojibara and other members of the Electoral Commission instituted an action at the State High Court claiming among other things, the right to conduct Local Government Election. The said Suit No. KWS/118/2007 which was by way of Originating Summons is annexed to the affidavit as Exhibit B. It was further averred that when it became apparent that the 1st, 2nd, and 3rd Defendants/Respondents were bent on conducting the election in defiance of the Supreme Court judgment, the Plaintiffs under the auspices of All Parties Congress wrote the 1st, 2nd, and 3rd Defendants/Respondents advising them to put the proposed election on hold until the legal KWASIEC was re-instated. The letter is annexed as Exhibit C.

In paragraphs 17-20 of the Affidavit, the Plaintiffs/Appellants further aver that the Plaintiffs/Appellants under their umbrella congress also addressed press conferences on the illegality of the 3rd Defendant/Respondent and the need for the state to reinstate the legally constituted Kwara State Independent Electoral Commission which was illegally dissolved by the first 1st Defendant. Pages 4 and 5 of “The Nation Newspaper” of 1st and 2nd November, 2007 are annexed also to the affidavit in support of the Originating Summons and marked Exhibits D and E respectively.

Moreover, the Plaintiffs/Appellants further wrote the 3rd Defendant/Respondent severally of their intention to withdraw their participation in the said elections to be conducted by the 3rd Defendant one of such letter which has been exhibited and marked F.

Inspite of all the foregoing, the 3rd Defendant/Respondent on the instruction and directive of the 1st Defendant/Respondent conducted the Local Government Council Elections on the 3rd of November 2007, deliberately and flagrantly refusing to comply with the judgment of the Supreme Court made on 15/12/07.

The Appellants also deposed to the fact that Alhaji Issa Ojibara – led commission to the best of their knowledge, is the lawful body to conduct the Local Government Election having been reinstated by the Supreme Court and they also claim that they are major stake holders in the political dispensation in Kwara State while the 1st, 2nd and 3rd Respondents are the Chief Executive of Kwara State, Chief Law Officer of Kwara State and the body that conducted the Local Government Councils Elections on the 3/11/07, respectively.

Turning to the reliefs sought, and borrowing a leaf from the dictum of Tobi J.S.C in the case of Makoju v. Adeleke (Supra) earlier cited, this court must microscopically scrutinize the way and manner they are couched in order to decipher their true purport and particularly whether any of them relates to post election or pre-election matters as contended by the respective parties.

To me, a look at Relief Number one would reveal that it is very clear and needs no hairsplitting interpretative exercise. In my humble view, it simply seeks and invokes the High Court’s constitutionally conferred jurisdiction to declare any act of the Executive or any of its organ which violates the constitution or which is in excess of its powers as enshrined or donated to it by the constitution ultra vires, unconstitutional null and void in line with the doctrine of separation of powers. In this case, the relief includes a prayer for the court to declare the act of the Governor and Chief Executive of Kwara State as contemptuous, illegal, ultra vires, unconstitutional, null and void by proceeding to constitute a fresh electoral commission in the State in defiance of the judgment of the Supreme Court ordering him to reinstate the Alhaji Issa Ojibara led Kwara State Independent Electoral Commission,.

In respect of the second relief, which calls for a declaration that the election conducted by the 3rd Defendant on the 3rd November, 2007, upon the instruction of the 1st Defendant/Respondent (the said Chief Executive of Kwara State), was illegal, ultra vires, unconstitutional, null and void; this Relief is only a fall out from the purported illegality perpetrated by the 1st and 2nd Defendants in defying the order of the Supreme Court of Nigeria. If the appointment and Constitution of the 3rd Defendants was unconstitutional, illegal, null and void and ultra vires the Governor, then by a plethora of authorities which I do not need to cite, no matter how brilliantly, the election of 3rd November 2007 was conducted, it was and definitely is in the eyes of the law, an exercise in futility as one cannot put something on nothing just as an empty bag cannot stand. See the oft-quoted dictum of Lord Denning, M.R. in Macfoy v. U.A.C [1962] A.C. 152 and the celebrated case of Skenconsult v. Secondy Ukey (1980) 1 S.C. 6 at 26.

Relief number 3 is also straight forward and it seeks the interpretation of the Constitution on the tenure of the Alhaji Issa Ojibara led commission which was dissolved by the 1st Defendant and inspite of his reinstatement by the Supreme Court judgment which the 1st Defendant allegedly defied and went ahead to reconstitute the 3rd Defendant/Respondent who conducted the election of 3/11/07. If the lower court eventually determines that the tenure of office of Alhaji Issa Ojibara Commission was five years as guaranteed him and members by the Constitution and that their said tenure had not lapsed ,then whatever was done or purported to have been done by the 3rd Respondent was unconstitutional, illegal, null and void. In this case, if the third Respondent’s appointment and constitution was done while the tenure of office of the Ojibara led commission was still in being or subsisting, then the election conducted on the 3rd of November, 2007, was of no consequence and was ab initio aborted from inception as if no election was ever conducted. The consequences of the success of reliefs 1, 2 and 3 are reliefs 4, 5 and 6 which pray for orders inter alia that:-

1. The said election of 3/11/07 conducted by the 3rd defendant/Respondent be set aside pending the reinstatement of Alhaji Issa and his commission members and when that commission eventually conduct fresh election into all sixteen Local Government Councils in Kwara State.
2. The first Plaintiff is reinstated as tile legally constituted KWASIEC as directed by the Supreme Court in its judgment of 15/12/06 in suit No. SC/166/2004 Governor of Kwara State and Ors. V. Alhaji Issa Ojibara and Ors.
3. An order of perpetual injunction restraining the 1st Defendant, his agents or privies from swearing in recognizing the chairmen and councilors purportedly elected on 3/11/07 at the election conducted by the 3rd Defendant/Respondent.

I am of the candid view that the submissions of the learned D.P.P and the learned counsel for the 1st – 3rd Respondents having cited Tukur v. Government of Gongola State (supra); Tukur v. Government of Taraba State (1997) 6 N.W.L.R. (pt. 510) 549 at 582-583; the averments of the Appellants in their paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 25 of the affidavit in support that the Appellants’ suit was targeted on the Local Government Elections and that the court below at pages 102 and 103 of the records rightly held that other reliefs sought by the Plaintiffs/Appellants on the conduct of elections, were the principal or substantive reliefs while the remaining reliefs are merely ancillary, are with the greatest respect, highly misconceived.

In my humble opinion, the events that culminated in the eventual constitution of the 3rd Respondent by the 1st Respondent pre-dated the conduct of the Election of the 3rd of November, 2007. In the first place, the Supreme Court had on the 15th of December, 2006, reinstated the Ojibara led KWASIEC by its judgment in Suit No. SC/166/2004, and Alhaji Issa Ojibara had initiated Exhibit B on 9th of October, 2007, seeking for declarations that the appointment and constitution of the 3rd Defendant by the 1st Defendant was unconstitutional, illegal, ultra vires, null and void; and that in view of the decision of this Court and the Supreme Court in Appeal Nos. CA/IL/39/2003 and SC/166/2004 which duly interpreted the provisions of the 1999 Constitution and reinstated the Plaintiffs as Chairman and members of KWASIEC, the Plaintiffs were the only lawful and constitutional commission to conduct elections into the Sixteen (16) Local Government Council Areas in Kwara State.

They had also sought for orders mandating the 1st Defendant to pay their outstanding salaries, allowances and other perquisites of office in view of the judgments aforesaid; mandating the 1st and 2nd Defendant to recognize the Plaintiffs as the authentic chairman and members of the Kwara State Independent Electoral Commission to conduct election into the Sixteen (16) Local Government Area Councils and for further orders restraining the 1st and 2nd Defendants (the Governor and Attorney General of Kwara State), their servants, agents or privies from recognizing, treating and/or dealing with the Chairman and members of the 3rd Defendant as appointed and constituted by the 1st Defendant; and restraining the 3rd Defendant, servants, agents or privies from conducting election into the Sixteen (16) Local Government Areas in Kwara State on 3/11/2007 or any other date on the instruction of the 1st Defendant.

Apart from the above facts, the Appellants had attended a stakeholders’ meeting at the invitation of the 3rd Respondent wherein upon being intimated of the holding of election on the 3rd of November, 2007, the Appellants tried to no avail to dissuade and convince the 3rd Respondent of the illegality of conducting the election on the said day in view of the subsistence of the judgment of the Supreme Court reinstating the Plaintiffs in Exhibit A.

They had also written letters and called press conferences as can be gleaned from Exhibits C and D and when it became obvious that the 3rd Respondent upon the directive of the 1st and 2nd Respondents were bent on conducting the election, the Appellants served the 3rd Respondent with Exhibit F captioned “Re: The Proposed L.G. Council Election Notice of Withdrawal” referenced KW/AC/LGE/02 and dated 1st November, 2007, and actually withdrew from participating in the said election as reported at page 32 of the Nation Newspaper of 2ndNovember, 2007, (Exhibit E annexed to the Originating Summons).

Accordingly, it cannot be seriously contended and contested that the fundamental or principal issues that called for determination in the claim of the Appellants were on post-election matters. For the avoidance of doubt, I had reproduced the provisions of Section 97 of the Kwara State Local Government Electoral Law and from the simple grammatical and ordinary meaning of the words used therein, the jurisdiction conferred on the Kwara State Local Government Election Tribunal is for the hearing and determination of questions as to whether:-

1. any person has been validly elected to any office of Chairman, Vice Chairman, or Councillors; and
2. a question or petition brought before the said Local Government Election Tribunal has been properly or improperly brought.

As the learned counsel for the Appellants has rightly argued and from the depositions in the affidavit of the Appellants and annexed Exhibits, it is clear that the Appellants never contested the said Local Government Election which they had by Exhibits C, D, and E prevailed on the 1st – 3rd not to conduct because of what they perceived to be the illegality of such conduct by virtue of the judgment of the Supreme Court per Exhibit A; and where/when the third Defendant defiantly allegedly went ahead to conduct the said election in the life of the reinstated Ojibara led commission following its constitution by 1st Defendant/Respondent, the Appellants boycotted the election as can gleaned from the content of Exhibit D – “The Nation Newspaper” of Friday, November 2nd, 2007 edition with the caption: “Kwara State Opposition Parties Withdraw from Polls”, There is no counter affidavit to challenge this Exhibit and even if there were such counter affidavit, it is irrelevant for the purpose of determining jurisdiction, at this juncture,

It is submitted with the greatest respect to the learned D.P.P. and Counsel to the 3rd Respondent that the Appellants were rather challenging what according to them was the illegal conduct of the 1st Respondent in defying the Supreme Court judgment and proceeding to constitute the 3rd Respondent which purportedly conducted an election during the life span of the Ojibara led parallel commission following its reinstatement by the apex Court, With the greatest respect again, the validity of the election of the Chairmen and Vice Chairmen or Councillors was not being challenged in the High Court nor was any question or petition brought before the High Court, the propriety vel non which ought to be determined by the Court. By the provisions of section 272(1) of the Constitution of the Federal Republic of Nigeria 1999, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the exercise or extent of a legal right, duty, liability, privilege, interest, obligation or claim is in issue.

On the whole, I take the view that the suit of the Appellants in the High Court of Kwara State was not to challenge undue return or undue election but it was rather to challenge what they perceived to be the 1st – 3rd Respondents ultra vires exercise of executive powers by flagrantly treating the judgment of the apex court with utmost levity, disdain and/or contempt, when the Chief Executive proceeded to reconstitute a parallel 3rd Respondent to the subsisting and reinstated Alhaji Issa Ojibara led Electoral Commission, such that if the 3rd Respondent was illegally constituted whatever it purported or purports to do is illegal and therefore null and void, I agree rather with the Learned Counsel of the Appellants that by virtue of section 6 (6) (a) and (b) and 272 (1) of the Constitution of the Federal Republic of Nigeria, 1999, sections 96 and 97 of the Kwara state Local Government Electoral Law 2004, nay the case of Doukpolagha v. George [1992] 4 N.W.L.R. (pt. 236) 444 on the nature of Election Tribunals, it is/was the High Court of Kwara State that was/is seised of the requisite jurisdiction by the nature of claim theory, to entertain and determine the case of the Appellants and not the Local Government Electoral Tribunal. See Tukur v. Govt. of Gongola State (1989) 4 N.W.L.R. (pt. 177) 517 at 549 para. B; Izenkwe v. Nnadozie 14 WACA 361 at 363; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 at 51 and Western Steel Works v. Iron and Steel Workers (1987) N.W.L.R (pt. 49) 284. There is no doubt that in the locus classicus of Tukur v. Government of Gongola State (Supra) at pages 567 paras. D – E and 568 paras. A-B. Oputa J.S.C. had rightly held that;

“The Appellants’ claims 3, 4 and 6 although they touch his fundamental rights, yet they arose out of the deposition of the Appellants as Emir of Muri for if he were not deposed, those claims would not have arisen. It is therefore correct to describe claims 3, 4, 5 and 6 as ancillary claims as they are collateral to, dependent on and ancillary to claims 1 and 2. A court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claims would inevitably involve a discussion of the main claims.” Page 567 paras. D – E.

In that case both sides were ad idem that the deposition of the Appellant which was the main issue before the court of first instance was a radical and fundamental issue which must be resolved by the court before it could adjudicate on the ancillary and subsidiary claims 3, 4, 5 and 6 which touched on the fundamental right of the Appellant. The Supreme Court relied on the case of Nwafia V. Ububa (1996) N.M.L.R. 219 to agree Peterside SAN that the particular subject-matter and principal issue being a chieftaincy matter – the deposition of Appellant as Emir of Muri – there was no where the Appellant’s fundamental rights would be determined without a determination of and as to how the rights were infringed with respect to the deposition of the Appellant and his alleged confinement to the government lodge.

The apex court further held that at that stage, the court would have to examine the provisions of the Chiefs Law Cap. 20 Laws of Northern Nigeria relating to deposition of chiefs and that where and when the court started doing this, it would have certainly gone beyond the limited jurisdiction of the Federal High Court which was then basically a Revenue Court.

In the final analysis, Oputa J.S.C. at page 568 para B. then intoned:-

“I also agree. “Accessorius sequitur naturam sui principalis” (3 inst. 139). An accessory follows the nature of its principal by the same token an accessory claim can only be determined by that court with jurisdiction to decide the principal claim – here the State High Court being a court of unlimited jurisdiction but definitely not the Federal High Court whose jurisdiction is chiefly limited to the “Revenue of the Federal Government”.

From the foregoing, it would appear that Tukur v. Govt. of Gongola State (supra), rather supports the case of the Appellants. As said earlier, the claims or questions for determination are basically constitutional questions as to whether:-

1. The 1st and 2nd Defendants could lawfully constitute the 3rd Respondent inspite of the Supreme Court judgment reinstating the Issa Ojibara led commission.
2. The 3rd Respondent so constituted by the 1st and 2nd Respondents inspite of the Supreme Court decision could validly and legally conduct the Local Government Elections of 3rd November 2007, in Kwara State?
3. It is not the Alhaji Issa Ojibara led KWASIEC who were reinstated by the Supreme Court in the judgment delivered on the 15/12/06 in Suit No. SC/166/04 that had the constitutional and legal rights to conduct election into the Local Government Council Areas of Kwara State
4. The election so conducted by the 3rd Defendant/Respondent into the Local Government Council Areas of Kwara State on 3rd November, 2007 was not illegal, ultra vires, null and void?; and
5. The court could/can order the reinstatement and constitution of the Alhaji Issa Ojibara led Electoral Commission in accordance with the order and directive of the Supreme Court in Suit No. SC/166/2004 delivered on the 15th of December, 2006, following the refusal of the 1st Defendant/Respondent to abide by the above directive when it constituted the 3rd Respondent who conducted the election of 3/11/2007 which is sought to be declared illegal, unconstitutional, and null and void.

Reliefs 1, 2, 3 and 5 are the fundamental and radical issues which must be determined before the order can be made setting aside the election conducted by the third Defendant on 3/11/07 pending the time the reinstated Alhaji Issa Ojibara led KWASIEC would conduct fresh election into the 16 Local Government Councils in Kwara State as prayed in relief 4; and the order of perpetual injunction as prayed in relief 6 can be granted. In my humble opinion, it is only the High Court of Kwara State that is seised of the requisite jurisdiction to pronounce on the illegality vel non, and/or review the executive action of the Governor in allegedly brushing aside the Supreme Court reinstated Ojibara led KWASIEC to constitute the 3rd Respondent who conducted the election of 3/11/07 and not the Kwara State Local Government Election Tribunal as it were, its jurisdiction being circumscribed by Section 97 of the Local Government Electoral Law of Kwara State to only determine undue election, or whether a person has been validly elected to the office of Chairman, vice chairman or councilor; and whether a question or petition brought before the said tribunal has been properly or improperly brought.

The Supreme Court in Yusuf v. Obasanjo (2004) 9 N.W.L.R. (Pt. 877) 144 at 183 paras. F – G had answered the pertinent question which has been posed by the learned counsel in their respective arguments as to whether it is the High Court of Kwara State or The Local Government Election Tribunal that possesses the requisite jurisdiction to hear and determine the Appellants’ claims. The facts of the case are that an Election Petition was filed by the 1st and 2nd Respondents praying the tribunal to declare the 1st Appellant as not being duly elected and returned as the President of Federal Republic of Nigeria by the Independent National Electoral Commission (INEC) at the Presidential Election held on the 19th April, 2003.

In their petition the Respondents averred in paragraphs 10, 11 and 12 thereof that the 4th Respondent failed to monitor the campaign activities of the Appellants after the date of the election was announced, contrary to paragraph 15(c) and (f) of Part I of the Third Schedule to the 1999 constitution of the Federal Republic of Nigeria. The Respondents further alleged that as a result of that failure, the Appellants held a fund raising at Sheraton Hotel and Towers, Abuja on the 16th of January, 2003 after the nomination of the 1st Appellant by the 2nd Appellant during which a foreign donation of over a million Euros amongst other sums in excess of One Billion, One Hundred Million Naira was announced as received mostly from undisclosed source contrary to Section 225(2) of the 1999 Constitution and which money was never remitted to the 40th Respondent.

It was further alleged that by reason of the failure of what 40th Respondent complained of, the 56th Respondent under the aegis of Corporate Nigeria, embarked on additional fund raising from registered corporate organizations in Nigeria contrary to the provisions of the Companies and Allied Matters Act, 1990, which forbids the application of any of the funds of a Nigeria registered company to political purpose(s).

Upon receipt of the petition of the Respondents, the 1st and 2nd Appellants as well as the 40th to 50th Respondents challenged the competence of paragraphs 10 – 12 of the petition by way of preliminary objections and called on the Election Tribunal to strike out the offending paragraphs in that they related to breaches of the Constitution and the Companies and Allied Matters Act, 1990. The Tribunal refused to accede to their prayers holding that although the matters complained of, related to breaches of the constitution and the Companies and Allied Matters Act, 1990, only the Court of Appeal had jurisdiction to entertain such matters by virtue of section 239(1) of the 1999 Constitution and in so far as the matters touched on the conduct of the Presidential Election under the Electoral Act, 2002.

On Appeal to the Supreme Court, Kutigi J.S.C (as he then was) who delivered the lead judgment appositely stated thus:-

“There is no doubt at all that the tribunal has original jurisdiction to hear and determine presidential election petition vide section 239(1) of the Constitution and consequently to hear all matters related to the election. But the issue here is will that include matters specifically assigned to other courts under the constitution? The tribunal says ‘yes’. I say ‘no’ strictly speaking. I think matters or things which constitute infraction of the Constitution and Companies and Allied matters Act or any Act for that matter should go before the High Court and/or Federal High Court as the case may be. The courts are vested with jurisdiction and the Laws to listen to those infractions or complaints and not the Tribunal”.

See also the case of A.N.P.P v. R.O.A.S.S.D. (2005) 9 N.W.L.R (pt 920) 144; per I. T. Muhammad J.C.A. (As he them was) who distinguished the above case in holding that the case of Appellant was purely an Election matter for which the Election Tribunal had exclusive jurisdiction as against the Federal High Court.

The tribunal with the greatest respect, has no powers or jurisdiction to adjudicate on the question as to whether the Governor has the powers to constitute it or whether a dissolved pre-existing tribunal which has been reinstated by the Supreme Court can be brushed aside and a parallel one constituted to conduct election.

Following the dicta of Oputa J.S.C. in Tukur V. Government of Gongola State (Supra), and Kutigi J.S.C. (as he then was) in Yusuf v. Obasanjo (Supra), I reiterate that the reliefs for the orders setting aside the election conducted by the 3rd Respondent and injunction as in prayers 4 and 6 of the Originating Summons, are ancillary to the questions or issues of the illegality, contemptuous, ultra vires, unconstitutional and null and void nature of the 1st and 2nd Defendant/Respondent’s constitution of the 3rd Respondent who conducted the election of 3rd November, 2007.

As I have said before and shall re-emphasize here again, if the court subsequently finds out that the act of the Governor in constituting the 3rd Respondent was unconstitutional, illegal, null and void, then the conduct of the election by the 3rd respondent was equally null and void and all persons purportedly elected and are occupying offices either as Chairmen, Vice Chairmen and Councilors in the 16 (sixteen) Local Government Council Areas of Kwara State are doing so illegally. Again, once the court rules that the appointment of the 3rd Respondent was/is illegal, unconstitutional, null and void, there would have been no need for legs 4 and 6 of the Appellants’ reliefs, since the natural and legal consequence is the automatic setting aside of the election conducted by the 3rd Respondent.

However, in a country where the constitution is honoured more in the breach than in the observance, it is only desirable to ask for the ancillary Reliefs 4 and 6 as the Appellants have done in the lower court. This issue is resolved in favour of the Appellants.

ISSUE NUMBER 2: WHETHER THE APPELLANTS HAVE ANY COMPLAINT THAT CONSTITUTES SERIOUS BREACHES OF THEIR RIGHT SUFFICIENT ENOUGH TO CONFER ON THE IN A RIGHT OF ACTION AGAINST THE RESPONDENTS:-

This issue to my mind translates to the question as to whether any cause of action inheres on the Appellants so as to vest them with the necessary locus standi to question the violation of the judgment of the Supreme Court by the 1st Defendant/Respondent in proceeding to appoint the 3rd Respondent who conducted the election of 3/11/07 inspite of the reinstated Alhaji Issa Ojibara led Kwara State Independent Electoral Commission.

Now, “Blacks Law Dictionary” 7th Edition by Bryan Garner et al defines cause of action at page 214 as:-

“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” See Read v. Brown (1889) 22 Q B. 128 per Pollock B. at 129; Alhaji Kusada v. Sokoto N.A (1968) 1 ALL N.L.R. 379 at 381 – 382.

Edwin E Bryant in his text titled” The Law of pleadings under the codes of Civil Procedure” 2nd Edition at page 170; which text is cited at the same page of Black’s Law Dictionary has the following to say about cause of action:-

“What is cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be – (a) a primary right of the plaintiff actually violated by the defendant or (b) the threatened violation of such right which violation the plaintiff is entitled to restrain or prevent, as in cases of actions or suits for injunctions or (c) it may be that there are doubts as to some duty or right, or that right is beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may, safely perform his duty or enjoy his property”. See per Aniagolu J.S.C, in Lasisi Fadare v. A. G. Oyo State (1982) 4 S.C.1 at pp. 6-7.

The distinguished legal luminary and Emeritus Justice of the Supreme Court, Oputa J.S.C. in the celebrated case of Fred Egbe v. Hon. J. A. Adefarasin (1987) N.W.L.R (pt. 47) 1 at 20; had this to say on the definition of ’cause of action’ thus giving judicial flavour to the above definition that:-

“It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief”

“A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right”.

What emerges from all the definitions afore-stated in sum is that a cause of action may be a violation or threatened violation of a right inherent in a person the violation or threatened violation which will entitle him to sue for judicial remedy in a court of law. It may also be in the form of a right or duty, personal or public which has been obstructed by the act of an adverse party which act can only be cleared by the judicial process to enable the party suing to perform such a duty or obligation or to exercise such a right as in the realm of public interest litigation. By its very nature, cause of action is sine qua non to the vesting of locus standi and the two must co-exist simultaneously and be vested in a party to an action in order for the court to be seised of the requisite jurisdiction to entertain the party’s claim. See Afolayan v. Ogurinde (1990) 1 N.W.L.R. 369 at 382 – 3; Adimora v. Ajufo (1988) 3 N.W.L.R. 1; Berger v. Omogui (2001) 6 N.S.C.Q.R. 1062 at 1075 and 1076 and Mrs. F.O. Labode v. Dr. Godfrey Otubu & 1 Anor. (2001) 5 N.S.C.Q.R. 722 at 741 -745.

How then is cause of action determined? The answer has been provided in the recent case of Adekoya v. Federal Housing Authority (2008) 2 N.S.C.Q.R. (Vol. 34) 952 at 965 – 966 per Tabai J.S.C. when he posited:-

“Even if it is conceded that a valid contract for a lease was entered into on 25th July, 1977 a cause of action cannot be said to accrue to the Appellant unless and until there emerges a tactual situation which gives her a right of action.”

In other words, each of the factual elements or situations which culminate in the accrual of cause of action should have come into existence before proceedings can be commenced otherwise, the proceedings will be premature and therefore unsustainable. An action is said to relate back to the date it was initiated and speaks from the date of issuance of the writ. See Eshelby v. Federation of European Bank Ltd. (1932) 1 K.B. 254; Couhs & Co. v. Duntroon Investment Corporation Ltd. (1958) 1 W.L.R. 116.

In Oshoboja v. Amuda (1992) 7 S.C.N.J. 316, the Supreme Court held following the English case of Drummond – Jackson v. British Medical Association (1970) 1 W.L.R. 688 that a reasonable cause of action simply means a cause of action with some chance of success when only the allegations in the pleadings are considered. Also once the requisite factual elements are present, a cause of action enures notwithstanding the fact of weakness and the unlikelihood of success of the case.

Most importantly and as far as this particular case is concerned, the Supreme Court had held per Obaseki J.S.C. in Thomas v. Olufosoye (1986) 1 N.W.L.R. 669; that having regard to the provisions of Section 6(6)(b) of the Constitution, a cause of action is the question as to the civil rights and obligations of the Plaintiff founding the action to be determined by the court in favour of one party against the other party and that it is to the substantive law of the subject-matter of the litigation that one should look to find out what facts constitute the cause of action in the particular claim.

Going by these authorities, the Appellants have in the Questions For Determination sought for the determination of some constitutional and legal questions which are:-

(i) Whether the 1st and 2nd Defendant could validly constitute the 3rd Defendant/Respondent inspite of a subsisting judgment of the Supreme Court reinstating the dissolved Alhaji Issa Ojibara led KWASIEC?

(ii) Whether the 3rd Defendant/Respondent can validly and legally conduct election into the Local Government Council Areas of Kwara State.

(iii) Whether it was the reinstated Alhaji Issa Ojibara led KWASIEC that had the constitutional and legal right to conduct the election into the said Local Government Councils?

(iv) Whether the election conducted by the 3rd Defendant into the Local Government Council Areas of Kwara State on 3/11/07, was not illegal, ultra vires, null and void? And

(v) Whether the appointment and constitution of the 3rd Defendant/Respondent was not contemptuous, illegal, ultra vires, null and void?

Sections 6(6)(a) and (b) of the 1999 Constitution has vested the Courts with inherent powers to adjudicate between persons, or between government or authority and to any person in Nigeria, and to all actions relating thereto, for the determination of any question as to the civil rights and obligations of that person.

By Section 272(1) thereof, the State High Courts (in this case the Kwara State High Court) are vested with the jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.

Above all, Section 287(1) of the Constitution enjoins in mandatory terms all authorities and persons, and courts with subordinate jurisdiction to that of the Supreme Court, to enforce all the decisions of the apex court in any part of the Federation. By the averments in the affidavit in support of the Originating Summons the Supreme Court gave a decision on the 15th of December, 2006, concerning the reinstatement of the Alhaji Issa Ojibara led Kwara State Independent Electoral Commission which the 1st Defendant/Respondent (the Governor of Kwara State) dissolved in 2003.

The Appellants as an umbrella Congress of Political parties prevailed on the 1st – 2nd Defendants/Respondents to abide by the judgment of the Supreme Court and reinstate the said Alhaji Ojibara’s Commission but the State Government allegedly defied their advice and the subsisting judgment and proceeded to constitute the 3rd Respondent. Even when the Respondents were aware that the said Alhaji Ojibara led Commission had instituted Exhibit B to press for their rights as conferred on them by the Constitution and the Supreme Court, the 1st and 2nd Respondents brushed aside the suit and went ahead to constitute the 3rd Respondent as a parallel Commission which went ahead to conduct the Local Government Election of 3/11/07.

The contention of the Appellants is that they were confused as to which of the commissions was legitimate or constitutionally vested with the power to conduct the election. Even after the setting up of the 3rd Respondent, the Appellants by Exhibits C – F warned the 1st and 2nd Respondents on the implications of such an illegality and the 3rd Respondent was intimated of their boycott of the election which was obliviously conducted inspite of the warning and advice. The bundle of factual elements culminating in the accrual of reasonable cause of action on the Appellants had come into existence, once the 1st and 2nd Respondents went on to constitute the 3rd Respondent who went ahead to conduct the election of the 3rd November, 2007. The Appellants who by Section 5(g) of the Electoral Law of Kwara State, 2004, are political parties and stakeholders in the electoral process and by Section 6(6)(b) of the Constitution had the legal right, interest and obligation to contest the election and were duty bound to challenge the exercise of the powers of the 1st Respondent to constitute the 3rd Defendant and to insist that the judgment of the Supreme Court be obeyed by virtue of Section 287(1) of the Constitution; See Thomas v. Olufosoye (supra) Adekoya v. F.H.A (2008) 4 S.C.N.J. 151 at 153; Alhaji Kusada v. Sokoto N.A. (1968) 1 All N.L.R. 377 at 381 – 382; Fadare & Ors. V. A.G. Oyo State (1982) 4 S.C. 1 at 6 – 7, Nevadiaro v. Shell Dev. Co. Ltd. (1990) 5 N.W.L.R. (pt 150) 322 at 338 – 339; Egbe v. Adefarasin (1987) 1 N.W.L.R. (pt 47) 1 at 20.

I therefore, refuse to subscribe to the submissions of learned counsel for the entire Respondent, that the claim of the Appellants disclosed no reasonable cause of action. I am rather of the view that from the facts so copiously averred in their affidavit, the questions sought to be determined and the Reliefs sought, and going by the Supreme Court decision in A. G. Kwara State v. Olawale (1993) 1 N.W.L.R. (pt 272) 645 at 674 paras. E – F; the Appellants as political parties who are juristic as well as natural persons with rights to a judgment against the Respondents have disclosed sufficient facts which it would be necessary for them to prove, and if traversed by the Respondents, to support their right to judgment in the court below. An issue or Issues of Constitutional and legal nature have arisen between the parties which vest(s) the Appellants with the collective cause of action to ignite their locus to institute the action as they had done in the lower court.

This brings me to the contention by Learned Counsel for the 1st and 2nd Respondents in their brief that the claim of the Appellants was statute-barred since it was commenced outside the statutory three months limitation period to commence actions against public officers. No particular Limitation Law or Public Officers Protection Law was cited in support of the above submission. However, the Appellants in their Reply Brief have submitted that even though the Supreme Court gave the judgment reinstating the Alhaji Ojibara led Electoral Commission, it was the establishment of another Electoral body by the 1st Respondent thereby creating two parallel commissions that actuated the Appellants’ cause of action. This according to them is more so, as the two commissions were hankering after superiority as to who would conduct the election aforesaid.

As I had already held while considering the issue of cause of action, from the facts deposed to in the affidavit in support of the Originating Summons and Exhibits B, C, D, E and F annexed thereto, it was the chain of events culminating in the eventual constitution of the 3rd Respondent despite protests by the Appellants as to the illegality of that constitution, that gave rise to the cause of action. See Adekoya v. F.H.A (2008) 34 N.S.C.Q.R. (pt. 2) 952 at 964, per Tabai J.S.C. who held quoting Oputa J.S.C. on how to determine the period of limitation inter alia:-

“How does one determine the period of limitation? The answer is simple – by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses …”

I therefore agree, with the submissions of the Learned Counsel for the Appellants that the Ojibara led Commission having initiated Exhibit B seeking for an order that his Commission was the authentic one to conduct the election, and the 1st and 2nd Respondents having ignored the protests of the Appellants against the constitution of the 3rd Respondent and the conduct of the election by the latter to no avail, the Appellants’ cause of action therefore accrued. Accordingly, their suit was timeously commenced and properly constituted.

Assuming but not conceding that the Public Officers Protection Law applies in this case, even though the Learned D.P.P. only made a passing comment in that respect, the Supreme Court had long held in the case of Nwankere v. Adewunmi (1966) 1 All N.L.R. 129 at 134 while interpreting the Public Officers Protection Law, 1973 of Lagos State, Cap. 114, 1973; that:

“The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. If the Plaintiff’s story was true he did not purport to be acting in the execution of any public duty.”

Where an officer, be he the Governor or Attorney-General of the State in the exercise of his powers uses his office as a cloak, to pursue personal or selfish ends or goes beyond the scope of his public office or in abuse of such office, such an officer shall not enjoy the protection envisaged under the law. See also Ekonwde v. Alausa (1961) All N.L.R. 135; Inspector-General of Police v. Olatunji (1955) 21 NLR 52. See further S. Seamwell and Nephew Ltd. v. Hurly (1928) 1 K.B. 419 where the English Court of Appeal while interpreting the English Public Authorities Protection Act of 1893, which wordings are in pari materia with our extant Public Officers Protection Act and Laws of this Country, supported the decisions above cited by holding that such an officer cannot enjoy the protection if the evidence shows that he did the act in question with any intention other than that of discharging, or promoting the discharge of the public duty or of exercising, or promoting the exercise, of the power, authority or function to which the public officer apparently relates.

As Nnaemeka Agu J.C.A. (as he then was) succinctly put in M.D. Yusuf v. Fred Egbe (1987) 2 N.W.L.R. (pt. 56) 341 at 361:-

“It appears to me that what the Act set out to protect is not the Public Office as such. In the ipsissima verba of the statute it is set about to protect “the act, neglect or default complained of” allegedly done or omitted to be done by the public officer “in pursuance or execution or intended execution of any Act or Law or of any public duty or authority.” It is never intended to be a cast-iron panacea for such public officers by reason only that they are public officers when the act outside the scope of their duty, or corruptly, or to further their own selfish interests. If I am right, then where the pleading points to the existence of any of the above circumstances the court is entitled and ought to go into the facts to find out whether in fact there are facts and circumstances which take the mailer outside the purview of the statute.”

The dictum of my Lord Nnaemeka-Agu J.C.A. becomes even more relevant to this case as it would appear that the disobedience of the order of the Supreme Court still continues and persists, as the act complained about has not abated. I am not unaware of the oft-quoted dictum of Karibi-Whyte J.S.C. in Fred Egbe v. Justice A. Adefarasin & Anor. (1983) 1 N.W.L.R. (pt. 3) 549 at 569 that where the Defendant has raised an unanswerable plea of protection under the Public Officers Protection Law on the uncontested facts, there will be absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action as the issue is whether the action was maintainable and not whether the Respondent was liable. Furthermore, the Public Officers Protection Law contains no qualification, the learned Law Lord had held. Ekeogu v. Aliri (1990) 1 N.W.L.R (Pt. 126) 345; Amao v. C.S.C. & Or. (1992) 7 N.W.L.R (Pt. 252) 214; Adenaike v. Ajayi & Ors (1987) 2 Q.L.R.N. 163; P/S Min. of Works, etc. Kwara State v. Balogun (1975) 5 S.C 57.

As far this appeal is concerned, the Defendants have not raised any unanswerable plea of protection under the Limitation Law or Public Officers Protection Act or Law since the Appellants have answered and I agree with them that calculating from when the cause of action accrued, their action was not caught either by any Limitation Law or the Public Officers Protection Law.

Accordingly, I shall discountenance the submission of the Learned D.P.P. in this respect and resolve this issue again in favour of the Appellants.

ISSUE NUMBER 3: WHETHER THE DECISION OF THE TRIAL COURT STRIKING OUT THE APPELLANTS CASE WAS NOT SUPPORTABLE ON THE GROUNDS OF ABUSE OF COURT PROCESS, WANT OF LOCUS STANDI, FOR BEING BADLY CONSTITUTED AND DEFECTIVE AND FOR BEING UNCONSTITUTIONAL?

This issue is formulated from the Notice to contend as given by the 3rd Respondent but in the course of resolution, I shall consider the issue of locus standi as raised by the Learned D.P.P. in the 1st and 2nd Respondents’ Brief alongside that of the learned counsel for the 3rd Respondent amongst other points raised in the said Notice.

Beginning from the question of locus standi, the contention of the learned D.P.P. on behalf of the 1st and 2nd Respondents and indeed, learned counsel for the 3rd Respondent is that there is nothing in the judgment in Suit No. SC/166/2004 delivered on 15th December, 2006 that would confer sufficient interest or cause of action on the Appellants against the Respondents nor have they from their affidavit evidence disclosed any legal interest derivable by the them from the said judgment that could ground or confer any right of action other than what the Respondents term their “‘stakeholderism’ and busy body adventurism”.

They have further relied on the authority of Thomas v. Olufosoye (1986) 1 N.W.L.R. (pt. 19) 669 at 682 and Balogun v. Adejobi (1995) 2 N.W.L.R. (pt. 376) 131 at 149 to submit that the Appellants not being parties or privy to the judgment of the Supreme Court cannot enforce same nor benefit there from and further on the authority of FMB Ltd. v. NDIC (1995) 6 N.W.L.R. (pt. 276) 226 at 244 to submit that from the affidavit in support of the Originating Summons, the Appellants have shown no recognizable interest to entitle them to approach the Court for the enforcement of/and benefit of Exhibit A.

Now, the term “locus standi” has been severally defined to denote the legal capacity of a person to initiate proceedings in a court of law which capacity is synonymous with status, standing, title or authority to sue. It has also been defined as the right of a party to appear and ventilate his grievance and to be heard on a question before the law court or the competence of such a party to seek redress in a court of law and to assert a right which is enforceable at law. See Adesanya v. President Federal Republic of Nigeria (1981) 5 S.C. 112 at 28 – 129 per Fatayi-Williams C.J.N.; Ogunsanya v. Dada (1992) 4 S.C.N.J. 162 at 168; Attorney-General Kaduna State v. Hassan (1985) 2 N.W.L.R. 453 at 496 and Adefulu v. Oyesile (1989) 5 N.W.L.R. 377 at 418.

It is also settled as had earlier been decided that the facts of accrual of cause of action are the essential ingredients of locus standi. There are also authorities galore to the effect that in the determination of the question of locus standi of a party just like its twin element cause of action, the court only looks at the statement of claim and the indorsment therein.

In our instant case, since the Appellants came to court by way of Originating Summons, the lower Court would only be concerned with the Questions for determination, the Relief sought and more particularly the affidavit in Support which is akin to pleadings in an ordinary Suit initiated by Writ of Summons. See Boothia Maritima Inc. v. OT & T.A. Ltd. (2001) 8 N.W.L.R. (pt. 716) 534 at 543; Inakoju v. Adeleke (2007) 4 N.W.L.R. (pt. 1025) 423 and Global Transport Occeanico S.A. & Anor. v. Free Enterprises Nig. Ltd. (2001) 12 W.R.N 136 at 155 paras. 1525 per Kalgo J.S.C.

In Daniyan v. Iyagin (2000) 8 WRN 44, which followed the Supreme Court decision in Owodunmi v. Registered Trustees of the C.C.C. & Anor. (2000) 2 WRN 29; (2000) 6 S.C.N.J. 399; it was held by Oduyemi J.C.A., that locus standi denotes the legal capacity or status to institute proceedings and does not depend on a chance of success in the suit but the condition or nature of the Suit. See also Adesokan v. Adegorola (1997) 3 S.C.N.J. at 16.

There is no doubt as has been argued by the Respondents upon the authorities of Thomas v. Olufosoye (supra) that the concept of locus standi has been given a rather restrictive scope based on our Common Law tradition which hitherto insisted that it is only a person in whom a personal right’ is vested and upon whom the reliefs claimed would confer some benefit that has the locus standi to prosecute an action.

Again” as was held in the locus classicus of Abraham Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 S.C. 112 per Bello, Uwais and Nnamani U.S.C.; such benefit must be personal or peculiar to that party and a person who actually makes a claim that belongs to someone else, has no locus before the court.

Perhaps, it is this restrictive view of the concept of locus standi and the position taken in the case above cited which position has continued to polarize judicial as well as legal pundits particularly in the realm of Public Law Litigations, that has accentuated the submission of counsel for the 3rd Respondent and the Learned D.P.P.’s position that the Appellants have no cognizable interest in the enforcement of the judgment of the Supreme Court in Exhibit A. Nnamani J.S.C. in his interpretation, of Section 6(6)(b) of the 1979 Constitution in Adesanya’s case has stated that the courts operate within the perimeter of the judicial powers vested in them by the said section of the Constitution and that the they can only take cognizance of justiciable actions properly brought before them in which there is a dispute, controversy and above all, in which the parties have sufficient interest.

The Learned Law Lord of blessed memory then cited the decision of the Supreme Court in LSDPC v. Dakour (1992) 11 – 12 S.C.N.J. (pt. 2) 217 and 225 where in it was held that for a person to be vested with the requisite locus standi to institute an action or to prosecute an appeal, he has to show that he has special interest which interest is not vague, or that it is not an interest which he shares with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge. See recently per Tobi J.S.C. who re-echoed the above dictum in Inakoju v. Adeleke (2007) 4 N.W.L.R. (pt. 1025) 427 at 602.

This authority and others like Gamioba & Ors. v. Esezi and others (1961) All N.L.R. 584 at 585 and Olawoyin v. Attorney-General of Northern Nigeria (1961) All N.L.R. 269 were relied upon to deny in limine Senator Abraham Adesanya, then a Senator of the Federal Republic of Nigeria, his locus to challenge an alleged unconstitutional appointment of Hon. Justice Ovie-Whiskey as Chairman of the Federal Electoral Commission (FEDECO) by the then President Alhaji Shehu Shagari.

The usual reason always advanced is the Common Law doctrine that in Public Law Litigations, an ordinary individual generally does not have locus standi as a Plaintiff because litigations in the public domain entail and concern public rights and duties which belong to or are owed all members of the public including the Plaintiff and that it is only where he has suffered special damage over and above that of the public generally, that he can be seised of the requisite locus standi to sue personally. See Boyce v. Paddington Borough Council (1903) 2 Ch. 556 followed in Gamioba v. Esezi II (supra) and Olawoyin v. Attorney-General Northern Nigeria (supra). See also Oputa J.S.C. who opined in A.G. Kaduna State v. Hassan (1983) 2 N.W.L.R. 483 at 522; that this Common Law concept has been encapsulated in Section 6(6)(b) of the Constitution and accordingly reinforced.

With these conservative positions taken by what I termed elsewhere as the old school of thought, it is only the Attorney-General who can sue to assert a public right or to enforce the performance of a public duty as in this case where the Appellants allege that the 1st and 2nd Respondents defied the judgment of the Supreme Court to constitute the 3rd Respondent who conducted the election of 3/11/2007. See A. G. of the Federation v. A. G. of Imo State & Ors. (1982) 12 S.C. 274 at 306 – 307 and A. G. for New South Wales v. The Brewery Employees Union (1908) 6 C.L.R 409 at 550 – 561.

Thus, by this Common Law doctrine, where a private person feels so strongly on such a case, he can only bring a relator proceeding upon the fiat of the Attorney-General being given him. See the recent case of Nwankwo v. Ononeze-Madu (2009) 1 N.W.L.R. (pt. 1123) 713 para. H per Abdullahi J.C.A., Port Harcourt Division C.A. But see the case of Adediran v. Inter Land Transport Ltd. (1991) 9 N.W.L.R. 225, where the Supreme Court held that Section 6(6)(b) of the Constitution of the Federation has removed the limitation of the Common Law whereby only the Attorney-General could bring an action for public nuisance. Now both the individual affected by the nuisance and the Attorney-General have equal rights to sue.

The moot question however, is what should happen in the scenario we have found ourselves where the Attorney-General is alleged to have worked as the Chief Law Officer of the State hand in glove with the Governor of Kwara State who is the 1st and 2nd Defendants in this case? Should stakeholders like the Appellants and discerning members of the public watch helplessly or condone the infraction of the Constitution or flouting of the order of the Supreme Court as complained by the Appellants in this appeal?

It is however, salutary that the courts have considerably departed from the old or conservative and restrictive idea of locus standi and have almost universally broadened the scope particularly in Public Law Litigations most especially where there is an infraction of the Constitution as can be seen from the dictum of Fatayi-William C.J.N. in the Abraham Adesanya’s case that where there has been an infraction of the Constitution, access to a Court of Law should be granted to any members of a society who is aware or believes, or is led to believe that there has been such infraction, to challenge the infraction and to air his grievances and that to refuse a party such access on such flimsy excuse as lack of sufficient interest is to provide a ready recipe for organized disenchantment, even though the Learned Law Lords made a volte face by denying Senator Adesanya his locus.

The Supreme Court and even this court have taken revolutionary and bold departures from the ubiquitous old concept of locus standi. See for instance, per Obaseki J.S.C. and his commendation by Eso J.S.C. where in Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. (pt. 66) 797 at 832 and 847 – 848; the former departure from the hitherto narrow attitude of the apex court in Adesanya’s case; Odeneye v. Efunuga (1990) 7 N.W.L.R. (pt 164) 618 at 631; Elendu v. Ekwuoaba (1995) 3 NWLR (pt. 380) 70 at 74, per Onalaja; A.G. Kaduna State v. Hassan (1985) 2 N.W.L.R. (pt. 8) 483 Ogunmokun v. Milad Ogun State (1999) 3 N.W.L.R. (pt. 594) 261 at 285; and the recent cases of Yusuf v. Obasanjo (2003) 16 N.W.L.R. (pt. 164) 618 at 638 paras. E – H; Alamieyieseigha v. Igoniwari NO.2 (2007) 7 N.W.L.R. (pt. 847) 554, Per Galadima J.C.A. and Fawehinmi v. President of the Federal Republic of Nigeria (2007) 14 N.W.L.R. (pt. 1054) 75 at 336 paras. H – E.

In the latter case Aboki J.C.A. restated what Fatayi-William C.J.N. said in the Adesanya v. President F.R.N. most admirably inter alia:-

“In this Country which establishes a Constitutional structure involving a tripartite allocation of power to the Judiciary, Executive and Legislature as the co-ordinate organs of Government, Judicial function most primarily aims at preserving legal order by confining the Legislative and Executive within their powers in the interest of the public and since the dominant objective of the rule of Law is to ensure the observance of the rule of Law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria where by any citizen could bring an action in respect of a public derelict. Thus the requirement of locus standi becomes unnecessary in constitutional issues as it will merely impede judicial functions.”

Even in the most conservative of common wealth or Common Law jurisdictions like Britain, or in liberal jurisdictions like the United States of America from where we derived our judicial system and our present Constitution, nay India and Bangladesh the concept of locus standi has been broadened and the courts have departed from the undue reliance on sufficiency of interest as the primary consideration for the conferment of locus standi in administrative and Constitutional Law, as exemplified in R v. Secretary Of State, Exparte World Development Movement Ltd. (2000) 21 W.R.N. 177.

In that case, an application for judicial review of the decision of the Foreign Secretary was brought by the applicants a non-partisan pressure group (World Development Movements Ltd), which campaigned to increase the amount and quality of British aid to developing countries. They (the applicants) also applied for an order for the disclosure of two minutes, dated 5 & 7 of Feb. 1991, from the Permanent Secretary in the Overseas Development Administration to the Minister of Overseas Development. The Foreign Secretary on the other hand, contended, inter alia, that the applicant had no locus standi to make the application, and further that he was entitled to take account of wider political and economic considerations when deciding to make a grant of aid. In a unanimous decision, the Queen’s Bench Divisional Court held as follows:-

“On when a non partisan pressure group can be seised of locus standi to bring an action, Per Rose L.J at pg. 187 -188) para. 15 – 5, posited:-

“For my part, I accept that standing (albeit decided in the exercise of the court’s discretion, as Donaldson MR. said) goes to jurisdiction, as Woolf L.J. said. But I find nothing in IRC v. National Federation of Self – Employed and Small Businesses Ltd to deny standing to these applicants. The authorities referred to seem to me to indicate an increasingly liberal approach to standing on the part of/he courts during the last 12 years. It is also clear from IRC v. National Federation of Self-Employed and Small Businesses Limited that standing should not be treated as a preliminary issue, but must be taken in the legal and factual context of the whole case (see 1981) 2 All ER 93 at 96, 110. 113, (1982) AC 617 at 630, 649, 653 per Lord Wilberforce, Lord Fraser and Lord Scarman). It seems pertinent to add this, that if/he Divisional Court in Exp Rees-Mogg eight years after Exp Argyll Group was able to accept that the applicant in that case had standing in the light of his ‘sincere concern for constitutional issues’ a fortiori, it seems to me that the present Applicants, with their national and international expertise and interest in promoting and protecting aid to underdeveloped nations, should have standing in the present application”.

On factors that are considered in determining the issue of locus standi in modern times, the learned Justice further held:

“Furthermore, the merits of the challenge are an important, if not dominant factor when considering standing. In professor sir William Wades words in Administrative Law (7th edition, 1994) p. 712.

“…the real question is whether the Applicant can show some substantial default or abuse, and not whether his personal rights or interest are involved.’

Leaving merits aside for a moment, there seem to me to be a number of factors of significance in the present case: the importance of vindicating the rule of law, as Lord Diplock emphasized in IRC v. National Federation of Self-Employed and Small Businesses Limited (1981) 2 ALL ER 93 at 107, (1982) AC 617 at 644: the importance of the issue raised, as in Exp Child Poverty Action Group; the likely absence of any other responsible challenger, as in Exp Child Poverty Action Group and Exp Green peace Ltd; the nature of/he breach of duty against which relief is sought (see IRC v. National Federation of Self-Employed and small Businesses Limited (1981) 2 ALL ER 93 at 96, (1982) AC 617 at 630 per Lord Wilberforce); and the prominent role of these applicants in giving advice, guidance and assistance with regard to aid (see Exp Child Poverty Action Group (1989) 1 All ER 1047 at 1048, (1990) 2 Q.B. 540 at 546. All, in my judgment, point in the present case, to the conclusion that the applicants hereto have a sufficient interest in the matter to which the application relates within s. 31 (3) of the 1981 ACT and Order 53, R 3(7)”. Per Rose L.J (pt. 187) para 25 -40.

Again, it is also necessary to refer to the position of the Law in India which we ought to borrow a leaf from their Public Interest Litigation system where locus standi can be given to any person who writes a letter of complaint in the name of the People’s Union for Democratic

Rights to the Chief Justice, justifying the rationale of the complaint. As was held by Dayal J. in the case of People’s Union for Democratic Rights v. Minister of Home Affairs:

“Following English and American decisions, our Supreme Court has of late admitted exceptions from the strict rules relating to locus standi and the like in the case of a class of litigation which have acquired classification known as “public interest litigation” that is, where the public in general are interested in the enforcement of fundamental rights and other statutory rights…”

See further the case of Fertilizer Corporation Kamaga Union v. Union of India (1981) A.I.R (SC) 344, where Lord Krishna Iyer of the Supreme Court of India stated the need for a broader scope of the rules of locus standi most appropriately in these words:

“Restrictive rules about standing are in general inimical to a healthy system of growth of administrative law. If a Plaintiff with a good cause is turned away merely because he is not sufficiently affected personally that could mean that some government agency is left free to violate the law such a situation would be extremely unhealthy and contrary to the public interest. Litigants are likely to spend their time and money unless they have some real interest at stake; and in some cases where they wish to sue merely out of public spirit; to discourage then and thwart their good intentions would be most frustrating and completely demoralizing. ”

In the recent case of Dr. Mohuiddin Farooque v. Bangladesh & Ors. (2002) 2 CHR 569 at 613 paras. H – 1 and 614 para. A, Latifur Rahman J. enunciated the social and philosophical basis for global expansion of standing rights thus:-

“The traditional rule to locus standi is that judicial remedy is available only to a person who is personally aggrieved. This principle is based on the theory that the remedies and rights are correlative and therefore only a person whose own right is violated is entitled to seek remedy. In case of private individual and private law this principle can be applied with some strictness, but in public law this doctrine cannot be applied with the same strictness as that will tantamount to ignoring the good and well being of citizens, more particularly from the view point of public good for whom the State and the Constitution exist.”

These authorities in the main, should persuade us in determining the vexed issue as to whether the Appellants in challenging the constitutionality of the action of the 1st and 2nd Respondents in the appointment and constitution of the 3rd Defendant who went on to conduct the election of 3/11/2007, inspite of the judgment of the Supreme Court (Exhibit A) and the pendency of Exhibit B, ought to show that they were adversely affected or that they had sufficient interest over and above other members of the public and in what manner they have suffered more than others.

From the foregoing, the decisions in the cases cited by the Respondents especially Thomas v. Olufosoye (supra); FMB Ltd. v. NDIC (supra) and Balogun v. Adejobi; even though decided in their peculiar jurisprudential environment, ought to be reviewed to conform with our present jurisprudential climate since they appear indeed to have been overtaken by events following our contemporary and social development. Although public interest litigation is still at infancy in this country, recent decisions of the Supreme Court have tended to jettison the old concept of sufficiency of interest as the bases for conferment of locus standi in constitutional matters. See for instance Odelleye v. Efunuga (supra) per Belgore, J.S.C; Fawehinmi v. The President F.R.N. (supra); AG. Lagos State v. AG of the Federation (2004) 18 N.W.L.R (pt. 904) 1; A.G. Abia State (2002) 6 N.W.L.R (pt. 674) 542; Alamieyeseigha v. Igoniwari NO.2 (supra); Yusuf v. Obasanjo (supra); Amaechi V. INEC & 2 Ors (2008) 5 NWLR (pt. 1880) 227 at 310-311 paragraph H-D;

The Supreme Court had held in the case of A.G. Kaduna State v. Hassan (supra) at page 486; rationes 13 and 14 that where a person brings an action to declare an act unconstitutional, the issue of locus standi is of secondary importance and that there are two tests in determining the locus standi of a person:-

a) That the action must be justiciable; and

b) That there must be dispute between the parties.

However, in the recent case of Inakoju v. Adeleke (2007) 4 N.W.L.R. (pt 1025) 427 at 602, Niki Tobi J.S.C. asserted that the burden on a party claiming declaratory relief based on the Constitution, is for such a party to show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment. The interest must be substantial, tangible, and not vague, intangible or caricature, and that in ascertaining whether the Plaintiff in an action has locus standi, pleadings, that is, the statement of claim, must disclose a cause of action vested in the Plaintiff and the rights and obligations or interests of the Plaintiff which have been violated. (Adefulu v. Oyesile (1989) 5 N.W.L.R. (pt. 122) 377; Adesokan v. Adegorolu (1991) 3 N.W.L.R. (pt. 179) 293; A-G. Enugu State v. Avop Plc. (1995) 6 N.W.L.R. (pt. 399) 90; Thomas v. Olufosoye (1985) 3 N.W.L.R. (pt. 13) 523 and Ladejobi v. Shodipo (1989) 1 N.W.L.R. (pt. 99) 596 referred to) (p. 602, paras. C – E) all cited.

By the above decision, it would appear with due deference, that my Lord still laid emphasis on sufficiency of interest and the restrictive scope of locus standi, which should no longer be the case particularly where a citizen of this country seeks to challenge the infraction of the Constitution, in view of the liberal posture advocated in Adesanya v. The President; and taken by their Lordships in Fawehinmi v. Akilu (supra); A.G. Kaduna State v. Hassan (supra) and Fawehinmi v. The President F.R.N. (supra). I say this with utmost humility and trepidation in view of the current liberal attitude of the courts even in the most conservative of Commonwealth jurisdictions. See R. v. Secretary Of State, Exparte World Development Movement Ltd. (2000) 21 WR.N 177 and foreign cases cited from Common Law jurisdiction

Be that as it may, from a careful perusal of the Appellants’ Originating Summons, the affidavit in support and the Exhibits annexed thereto, they have by their averments in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 – 17 met with the criteria laid down in A.G. Kaduna State v. Hassan (supra) and Inakoju v. Adeleke (2007) 4 N.W.L.R by disclosing and demonstrating that by their status as registered political parties with a large followership and membership in Kwara State and who ought to have sponsored candidates for the election which according to them ought to have been conducted by the reinstated commission led by Alhaji Issa Ojibara pursuant to the judgment of the Supreme Court in suit No. SC/166/2004 delivered on the 15th of December, 2006. They have also shown that because of the illegality of the act of the 1st Respondent in constituting the 3rd Respondent who conducted an illegal election, they have been deprived of their legal right to contest an election which ought to be conducted by the legally reinstated Ojibara led commission. Above all, in paragraphs 9 and 10 of the affidavit in support, the Appellants have alleged that the 1st Defendant constituted the 3rd Defendant solely with members of his political party – the Peoples Democratic Party (PDP) – and that the composition of the 3rd Defendant was in violation or contravention of the 1999 Constitution and the Supreme Court judgment.

Section 197(1)(b) of the 1999 Constitution provides for the establishment of the State Independent Electoral Commission and by subsection (3) thereof:-

“In appointing chairmen and members of boards and governing bodies of statutory corporations and companies in which the Government of the State has controlling shares or interest and councils of Universities. Colleges and other institutions of higher learning, the governor shall conform to the provisions of Section 14(4) of this Constitution.”

Section 14(4) on the other hand provides that the composition of the Government of a State, a Local Government Council, or any of the agencies of such government or councilor such agencies shall be carried out in such a manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty amongst the people of the Federation. This averment in paragraphs 9 and 10 of the affidavit in support of the Originating Summons is more than enough to vest the Appellants with the requisite locus standi to challenge the Constitution of the 3rd Respondent.

The above aside, the fact that the Appellants are/were stakeholders in the said election who had their interest to protect is amply demonstrated by the averment in paragraph 12 of the affidavit that the 3rd Defendant summoned the Appellants amongst other political parties for an interactive meeting on the 5th of October, 2007 at the 3rd Respondents office. At that meeting the 3rd Defendant was intimated by the Appellants of the illegality of the attempted conduct of the election. For the avoidance of doubt, Section 5(g) of the Kwara State Local Government Electoral Law, Cap. K32 provides that a person shall be qualified to contest the Local Government Election if among other criteria he is a member of a political party. See Amaechi v. INEC (Supra).

The submissions by the learned D.P.P and indeed the learned counsel for the 3rd Respondent that the Appellants were busy bodies and meddlesome interlopers who were not privies to the Supreme Court judgment in Suit No. SC/166/2004 delivered 15/12/2006 other than their alleged ‘stakeholderism’ and adventurism are not only idle but not borne out of the pleadings of the Appellants. I am therefore in total agreement with the learned counsel for the Appellants, that they have not only shown that they possess the legal rights, interest and obligations to challenge the violation of the provisions of the Constitution but they have demonstrated from their affidavit in support of the Originating Summons and Exhibits annexed thereto that the conduct of the 1st and 2nd Respondents had adversely affected their participation in the election of 3/11/2007, which was conducted by a body they perceived to be illegal, unconstitutional and ultra vires the powers of the 1st and 2nd Respondents to constitute. See Exhibits A, B, C, D, E and F.

The Appellants can therefore invoke Section 6(6)(a) and (b)of the 1999 Constitution, which vests in the State High Courts with all inherent powers and sanctions of a court of law which powers also extend to all matters between persons, or between government and authority and to any person in Nigeria; and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

To re-echo the Learned Judicial icons in the cases I had earlier cited, it is better to allow the Appellants who have demonstrated copiously from their affidavit that they are stakeholders in the Local Government Electoral process in Kwara State, to ventilate their grievances in a court of Law, they being members of duly registered political parties who are aggrieved that the Chief Executive of Kwara State defied the order of the Supreme Court reinstating the Ojibara led Electoral Commission, by going ahead to constitute the 3rd Respondent who conducted the Local Government Elections of 3rd November, 2007, and also that the Constitution of the 3rd Respondent violated Section 197(1) of the 1999 Constitution. The Appellants have therefore disclosed that there is a dispute between the parties and that their action emanating from that dispute is justiciable.

After all, the 1st – 3rd Defendants/Respondents are His Excellency the Governor of Kwara State, the Learned Attorney-General and Commissioner for Justice of the state who in this case is a Senior Advocate of Nigeria and the Kwara State Independent Electoral Commission, who by virtue of their exalted offices are authorities as of right and have sworn to protect, defend and uphold the Constitution of the Federal Republic of Nigeria in the course of their duties.

By their oaths of office therefore, they are obligated and duty bound to advance the rule of law. To defy the judgment of the Supreme Court as the Appellants have alleged, if true, will tantamount not only to sacrilege and antithesis of the rule of law but a flagrant breach of section 287(1) of the Constitution, which provides in unequivocal terms that:-

“287 (1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”

To borrow a leaf from Judge Kriegler in the South African case of The State V. Russel Mamabolo; Intervening Et v; Business day; Freedom of Expression Institute (us Amici Curiae), before the Constitutional Court of South Africa [2002] 2 CHR 303 at 345 and 346 the Nigerian Constitution having reposed much trust in the Judiciary, commands reinforcement of the dignity of the court by all organs of state if necessary by Legislative and other measures.

In a Constitutional order like ours, the Judiciary is an independent pillar of State, constitutionally mandated to exercise judicial authority of the state fearlessly and impartially and under the doctrine of Separation of Powers; it stands on an equal footing with the executive and legislative pillars of State. Although in terms of political, financial or military power, it is the weakest of the three pillars, yet its manifest independence and authority are essential and accordingly there is the growing need especially in our polity today to preserve the integrity of the Rule of law against governmental erosion. Thus, by the emphatic provisions of Sections 6(6) (a) and (b), 272 (1) and 287 (1) of the Constitution, the powers and protection afforded the court commands a peculiar resonance.

Therefore as has been ably argued by the learned counsel for the Appellants, law courts have always deprecated the erosion of their powers and may visit such flagrant disobedience or utter contempt of their decisions with punitive sanctions. See for instance Vaswani V. Savalakh (Supra), Military Governor of Lagos State V. Ojukwu (Supra), The Registered Trustees of The Apostolic Church V. Olowoleni (Supra) and Ezeagbu & 1 OR. V. First Africa Trust Bank Ltd. & 1 OR. (Supra) all cited by the Learned Counsel for the Appellants.

Indeed Tobi J.C.A. (as he then was) in the Basil O. Ezeagbu v. First Africa Trust Bank case [1992] I NWAR (pt. 220) at pages 720, paras. D-E, 725-726 paras. G-B, 735, paras. A – F, had warned that a decision of a court is presumed to be correct until set aside by a competent Court of Appeal (Ojiakor V. Ogueze [1962] 1 S.C.N.L.R. 112 referred), and that once parties have submitted themselves to the jurisdiction of the court they are under a legal duty not to take unilateral action that would prejudice the hearing or adjudication of the case as the Appellants have alleged in this case, that despite the pendency of Exhibit B, the 1st Defendant went ahead to constitute the 3rd Respondent which proceeded to conduct the election of 3rd November, 2007, thus warranting the institution of the present case on appeal. This is beside the fact that a decision had been given by the apex court of the land which decision has not been reversed by that court and ought to be obeyed by all authorities and persons which authorities include the 1st to 3rd Respondents either in their personal or official capacities.

Kalgo J.C.A. (as he then was), even put it more bluntly and succinctly as far as the scenario created by the allegation of the Appellants is concerned at pages 736 to 737 paras. B-D that:-

“What then is the remedy of the court where it finds its self in this situation? I have earlier said that any court found in the same situation would frown against it. I also add that the court must in addition take positive mandatory act in order to instill judicial discipline on the erring party and in order to maintain, restore and preserve the dignity of the court. This includes the undoing of what has been done by the erring party irrespective of what the court will decide on the merits when the matter is properly heard…”

It therefore behoves on the courts to take seriously any challenge to the violation of the constitution by the Executive arm of Government in the overall interest of the stability of the nation and the rule of law rather than resort to the restrictive interpretation of the Constitution as regards access to court of members of the public or group of persons with genuine concern for constitutional matters. Relying on all the authorities above cited, and those of the Appellants, I take the view that the Appellants have/had the necessary locus standi, to institute the action now on appeal, a cause of action having accrued to them upon the Constitution of the 3rd Respondent and the eventual conduct of the election of 3/11/2007.

ABUSE OF COURT PROCESS

The learned counsel for the 3rd Respondent had contended that the action of the Appellants constituted an abuse of court process which should be struck out on the grounds that the Originating Summons and a its supporting affidavit especially paragraph 15 thereof which is the same with Exhibit B which was already filed by Alhaji Issah Ojibara and his colleagues on the 9th of October, 2007, a month earlier than the suit now on appeal which was filed on the 9th of November, 2007. He has also submitted that questions for determination and the reliefs in both suits are the same; Exhibit B was yet to be decided when the Appellants filed their suit and that the Appellants have been unable to show their authority to file their action now on appeal. According to the learned counsel, the two suits against the same Respondents are on the same subject matter and were filed and subsisting simultaneously before the same court; and that the lack of authority or interest on the part of the Appellants to file the action to enforce the judgment of the Supreme Court in favour of the Plaintiffs in Exhibit B who are already seeking to enforce the same Supreme Court judgment constitute multiplicity of actions especially on the part of Appellants whose suit is calculated according to the Respondents to annoy an over reach them.

The Appellants have countered in their Reply Brief that their suit does not constitute an abuse of court process and enumerated the circumstances under which a suit can constitute abuse of court process submitting that those circumstances do not exist. In Saraki v. Kotoye (1992) 9 N.W.L.R. (pt. 264) at 156, per Karibi-Whyte J.S.C. at 188 para. F held that the concept of abuse of judicial process is imprecise and it involves a variety of circumstances, situations and conditions, the commonest of which is the improper use of judicial process by a party in litigation to interfere with administration of justice. According to the Learned Law Lord, an abuse of the process of court may lie in both proper or improper use of the judicial process in litigation and that the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent to the detriment of the efficient and effective administration of justice.

The circumstances that will give rise to an abuse of judicial process have been stated to include:

1. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue or on the same matter between the same parties where there exist a right to begin the action;
2. Instituting different actions between the parties simultaneously in different courts even though on different grounds;
3. Using two similar processes in respect of the exercise of the same right, for example, a cross-appeal and a respondent’s notice;
4. Seeking application for adjournment by party to an action to bring an application to court for leave to raise issues of facts already decided by court below and
5. Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness. See Ukachukwu v. Uba (2005) 18 N.W.L.R. (pt. 956) 1 at 63 paras. D – H and 65 paras. A – F; Harriman v. Harriman (1989) 5 N.W.L.R. (pt 119) at page 6 and African Insurance Corporation v. IDP Construction Ltd. (2003) 2 S.C.N.J. 28 all cited by the learned counsel for the Appellants.

In Scheep & Anor. v. Araza & Anor. 4 N.S.C.Q.R. 112 at 116; Karibi-Whyte J.S.C. again reiterated what he had said in Saraki v Kotoye (supra) that:

“…in every and all cases the general principle is that an abuse of the process of the court is constituted when more than one suit is instituted by a Plaintiff against a Defendant in respect of the same subject matter ”

What emerges from all the above judicial authorities is that to constitute abuse of court process, a Plaintiff must institute more than one suit on the same subject matter, the same issue(s) and between the same parties with intent to annoy, irritate and in a reckless and frivolous manner for the sole purpose of obstructing the efficient administration of Justice. The question is whether from the claim of the Appellants in this appeal and Exhibit B annexed to the Originating Summons, the parties, issues and subject matter are the same in the two suits or whether the suit of the Appellants have demonstrated such negative characteristic inherent in abuse of court process as contended by the Respondents?

A look at the Originating Summons, the subject matter of this appeal would reveal that the parties are:

1. ACCORD PARTY (AP); 2. ACTION CONGRESS (AC); 3. ALL NIGERIAN PEOPLES’ PARTY; 4. DEMOCRATIC PEOPLES’ PARTY; 5. PROGRESSIVE PEOPLES’ ALLIANCE, as

Appellants VERSUS

1. THE GOVERNOR OF KWARA STATE;
2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, KWARA STATE;
3. KWARA STATE INDEPENDENT ELECTORAL COMMISSIONER as Defendants whereas in Exhibit B the parties are Alhaji Issa Ojibara, Alhaji Issa Raji, Mr. Johnson Aina, Alhaji Abdullahi Berenede, Alhaji Maumud Yaru, Mr. M.O. Titiloye and Mr. Mameen Yusufas Plaintiffs while the Governor of Kwara State, The Attorney General & Commissioner for Justice, Kwara State and Kwara State Independent Electoral Commission as Defendants.

As for the questions for determination and the Reliefs sought In the Originating Summons now on appeal, they are reproduced hereunder as follows:

QUESTIONS:

1. Whether the 1st and 2nd Defendants could lawfully and validly constitute the 3rd Defendant inspite of the judgment of the Supreme Court in the Suit of Governor of Kwara State & Ors. v. Alhaji Issa Ojibara Suit No. SC/66/2004 delivered on 15/12/2006?
2. Whether the 3rd Defendant constituted by the 1st and 2nd Defendants inspite of Supreme Court decision can validly and legally conduct election into the Local Government Council Areas of Kwara State?
3. Whether it is not the Alhaji Issa Ojibara led KWASIEC who were reinstated by Supreme Court in the Judgment delivered on 15/12/2006 in Suit No. SC/66/04 has the constitutional and legal right to conduct election into the Local Government Council Areas of Kwara State?
4. Whether the Election conducted by the 3rd Defendant into the Local Government Council Areas of Kwara State on 3rd November, 2007, was not illegal, ultra vires, null and void?
5. Whether the appointment and Constitution of the 3rd Defendant by the 1st Defendant was not contemptuous, illegal, ultra vires, null and void?

RELIEFS:

1. A declaration that the appointment and Constitution of the 3m Defendant by the 1st Defendant is contemptuous, illegal, ultra vires, unconstitutional, null and void;
2. A declaration that the election conducted by 3m Defendant on 3/11/07 at the instruction and directive of the 1st Defendant is illegal, ultra vires, unconstitutional, null and void;
3. A declaration that it is the Alhaji Issa Ojibatra led Commission that was reinstated by the Supreme Court in its Judgment delivered on 15/12/06 in Suit No. SC/66/2004 that can lawfully and constitutionally conduct Local Government Election in Kwara State until the expiration of their 5 years constitutional guaranteed tenure of office;
4. An Order setting the election conducted by the 3rd Defendant on 3/11/07 pending the time the reinstated Alhaji Isaa Ojibara led Commission will conduct fresh election into all the 16 Local Government Councils in Kwara State;
5. An Order directing the 1st Defendant to reinstate the legally constituted KWASIEC as directed by the Supreme Court in its Judgment of 15/12/06 in the case of Governor of Kwara State & Ors. v. Alh. Issa Ojibara & Ors Suit No. SC/66/2006;
6. An Order of perpetual injunction restraining the 1st Defendant, agents or privies from swearing in or recognizing the Chairmen and Councillors purportedly elected on 3/11/07 at the election conducted by the 3rd Defendant.

On the other hand, the questions for determination in Exhibit B are:

1. Whether the Plaintiffs are not entitled to all their salaries, allowances, severance allowance and all other benefits by virtue of the Court of Appeal judgment dated 21/4/2004 and the Supreme Court judgment dated 15/12/2006 reinstating them (Plaintiffs) as Chairman and members of Kwara state independent Electoral Commission;
2. Whether the 1st Defendant can validly and legally appoint or constitute new chairman and members to fill the position of 3rd Defendant in view of the judgment of the Supreme Court dated 15/12/2006 which reinstated the Plaintiffs as Chairman Members of the Kwara State Independent Electoral Commission?
3. Whether the Chairman and members of the 3rd Defendant appointed or constituted by the 1st Defendant can validly and legally conduct Election into any of the 16 Local Government Areas of Kwara State or all the 16 Local Government Areas of Kwara Sate which they proposed to carry out on 3/11/2007?
4. Whether the appointment and constitution of new Chairman and members of the 3rd Defendant by the 1st Defendant were not illegal, ultra vires, null and void, abuse of office and against the Rule of Law and a mockery of judiciary? and
5. Whether is not the Plaintiffs that was reinstated by the Supreme Court of Nigeria on the 15/12/2006 by virtue of its judgment that has the legal right to conduct an election into the 16 Local Government Areas of Kwara State or any of the Local Government into the position of Chairman and councilors respectively?

RELIEFS BEING SOUGHT

1. An order mandating the 1st Defendant to effect the payment of all the outstanding salaries, allowances and benefits of the Plaintiffs in view of the Court of Appeal and Supreme Court judgment respectively;
2. A declaration that the appointment and constitution of the 3rd Defendants by the 1st Defendant is illegal, ultra vires, unconstitutional, null and void and of no effect whatsoever;
3. A declaration that in view of the decision of the Court of Appeal in Suit No. CA/IL/39/2003 and Supreme Court in Appeal No. SC/166/2004 which duly interpreted relevant provision of the 1999 Constitution and reinstated the Plaintiff as Chairman and members of Kwara State Independent Electoral Commission, it is only the Alhaji Issa Ojibara led State Independent Electoral Commission that can lawfully and constitutionally conduct Election into the 16 Local governments or any of the Local Government in Kwara State;
4. An order restraining 1st and 2nd Defendants servants, agents or privies from recognizing or treating or dealing with the new Chairman and members of the 3rd Defendant appointed and constituted by the 1st Defendant;
5. An order restraining the 3rd Defendant servants, agents or privies from conducting Election into the 16 Local Government Areas or any of the Local Government Areas in Kwara State on the 3/11/2007 or any other date on the instruction of the 1st Defendant; and
6. An order mandating the 1st and 2nd Defendants recognizing the Plaintiff as the authentic Chairman and Member of the Kwara State Independent Electoral Commission to conduct Election into the 16 Local Government Areas or any Local Government Areas or any Local Government Area of Kwara State.

From a comparison of the suit on appeal and Exhibit B, it is clear that although the questions and reliefs sought are basically and substantially the same, the parties particularly the Plaintiffs are however different. Therefore, the question of abuse of court process does not arise because the elements or criteria for the constitution of abuse of court process are not all present in the circumstances of this case. It is trite that every Nigerian in this country, be he a natural, artificial or juristic personality the right to pursue his claim in a court of law and nobody ought to be denied such right to ventilate his grievance merely because somebody else has sued for the same right but failed or succeeded. See Bello v. Fayose (1999) 7 S.C.N.J. 286 at 295 where Ayoola J.S.C. adopted the views of Lord Penzance in Spencer & Anor. v. Williams & Anor. 24 LTR 513 at 516 inter alia:-

“Every man has a right to litigate his own right and to be the guardian of his own right, and it is the commonest basis of justice that a man should not be robbed of that right by the fact that somebody else insisting upon the same right for his own purpose has entered upon a litigation which has turned out unfavourable at him.”

In this case it has not been shown that the parties in this case are privies to Exhibit B. The Appellants went to court according to them in the face of the two competing Electoral Commissions one of which they perceived to be illegal and the other one legal by virtue of the Supreme Court judgment and they cannot therefore be shut out because the Plaintiffs in Exhibit B are pressing for substantially the same reliefs.

Accordingly, I shall discountenance the submission of counsel for the 3rd Respondent as there is nothing irritating, annoying, frivolous, reckless and over reaching in the claim of the Appellants.

Finally, on the issue of improper constitution of the Plaintiffs/Appellants’ suit for lack of joinder of proper parties, the Appellants have rightly in my view stated the correct position of the law citing Afolayan v. Ogunrinde (1990) 1 N.W.L.R. (pt. 127) 369 at 385 per Obaseki J.S.C., who held that a person against whom a Plaintiff has no cause of action cannot be joined as a party and the action cannot be said to be improperly constituted because of such non-joinder. Also, in INEC v. Ray (2005) All F.W.L.R. (pt. 265) at 1085, it was settled that:

“In legal proceedings parties generally speaking are persons whose names appear on the record as Plaintiff or Defendant and a Plaintiff who conceives that he has a cause of action against a particular Defendant is entitled to pursue his remedy against that Defendant only and should not be compelled to proceed against other persons whom he has no desire and intention to sue”

Even where there is non-joinder of necessary parties as contended by the 3rd Respondent’s counsel, Order 14 Rule 16(1) of the Kwara State High Court Civil Procedure Rules, 2005, has provided a lee way to such error and neglect as follows:-

“No proceedings shall be defeated by reason of mis-joinder or non-joinder of parties, and the court may deal with the matter in controversy as far as regards the rights and interest of the parties actually before him.”

Again, by Rule 16(3) a judge may order the names of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings to be added. See the case of Green v. Green (1987) 7 S.C.N.J 255; Ayankoya v. Olukoya (1996) 2 S.C.N.J. 292 at 295 and Hon. Michael Dapialong & Ors. v. Hon. Simon Lalong & Ors. (2007) 5 N.W.L.R. (pt. 1026) 199 at 204; all cited by the learned counsel for the Appellants. In this case, if the court below found out that the Appellants and Plaintiffs in Exhibit B had demonstrated a commonality of interest, the best thing to do was to consolidate the suit and if there were any parties that were necessary to be joined in order to effectually and completely determine the question in issue once and all, then by the rules of court above cited, they could be ordered to be joined in the interest of justice.

On the whole, I am of the view that the notice to contend and the arguments proffered in support thereof lack merit and is accordingly discounted and dismissed. I hold the view that the appeal is meritorious on all grounds and has thus succeeded. I allow same and set aside the ruling of the High Court of Justice of Kwara State, Holden in Ilorin Judicial Division and delivered on 27th November, 2007 by Hon. Justice E.B. Mohammed and order that the Plaintiffs case be heard on the merit before another judge. I make no order as to costs.

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Other Citations: (2009)LCN/3291(CA)