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

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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

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

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

The grounds for the objections were copiously given as follows:

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

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

The substantive reliefs sought in the originating summon are:

“An order for leave to apply for judicial review and particularly for the following reliefs:

(a) An order of mandamus compelling the 1st defendant/respondent to swear in the plaintiff/applicant as Councilor for Ward F (180) of Lagos Mainland Local Government of Lagos State.

(b) An order compelling the first and second defendant to recognise the applicant as Councilor for Ward ‘F’ (180) of the Lagos Mainland Local Government and accord him all the right and privileges attached to that offices”.

(c) Such further or other orders as this Honourable Court may deem fit to make in the circumstances.

2. Another order accelerating the hearing of this suit and for same to be heard during court annual vacation.
3. An interim order compelling the 1st defendant to swearing the plaintiff/applicant as councilor for Ward ‘F’ (180) of Lagos State Mainland Local Government of Lagos State pending the hearing and final determination of the summons on notice”.

Further to the foregoing are the statement and grounds upon which the reliefs are sought; in addition a verifying affidavit in support of the originating summons of 18 paragraphs.

We heard the application on 11/10/2000. Mr. Jacobs for the applicant submits that the matter raises serious constitutional issues and that the judgment of this court given on 21st June, 2000 which has pronounced that the continued stay and occupation of the seat for Ward ‘F’ (180) in the Lagos Mainland Local Government Council by the 4th respondent as illegal has yet to be given effect as the respondent still occupies the seat, parades himself as Councilor for Ward ‘F’ (180) Lagos Mainland Local Government and performs the functions. The court was reminded that the 4th respondent has now taken 2 years of the 3 year-term of the office while enjoying the privileges, perks and perquisites of that office and that unless action was expedited in the appeal it would be rendered nugatory. On the 1st and 2nd respondent’s preliminary objection he opines that it is in pari materia with the objection taken in the court below necessitating this appeal and instant application and added that it is no objection in substance against the application but the appeal. On the preliminary objection raised by the 4th respondent he submits that the present cause of action is not founded on the matter of the elections of 5/12/98. That the said decision in CA/L/391/99 cannot constitute an estoppel to this action and that the objection is against the main appeal. In urging the court to grant the application so as to preserve the ‘Res’ he relied on the case of Onuzulike v. Commissioner for Special Duties Anambra State (1990) 7 NWLR (Pt.161) 253 at 261 to observe that in cited case injunction was granted.

Mr. Akinwole on behalf of the 1st and 2nd respondents relies on their counter affidavit and preliminary objection to urge the court to refuse the application on the grounds to wit (1) that the pre-action notice as prescribed by Section 165 of the Local Government Law No. 16 of 1976 of Lagos State has not been complied with. See Agbede v. Somolu (1996) 4 NWLR (pt.441) 174 and (2) That the action is statute-barred. Mr. Ibrahim for the 3rd respondents has aligned himself with the submissions of the applicant’s counsel and that granting the application would uplift the interest of justice.

Mr. Babafemi for the 4th respondent relies on the 4th respondent’s counter affidavit and the preliminary objection to urge that the substantive suit being a nullity, afortiori the instant appeal is offending Section 233(1) of the Constitution. Again, referring to sections 1 and 2 of the law No.7 of 1999 of Lagos State he remarked that the chairman has no duty in law to swear-in the applicant and so he is not a necessary party to the suit. He also raises the issue that the 3rd respondent is not a legal person known at law as there is nothing like Independent National Electoral Commission (Lagos State Chapter) as against INEC simpliciter or nothing. He relies on the affidavit of one Felix Adeoye at p. 57 of the bundle of the record of appeal as representing the true set of facts in the matter. He urges the court to refuse the application.

Mr. Jacobs, in reply on points of law, made reference to Section 88 of the Decree No. 36 of 1998 and Lagos State Law of No. 7 (1999) which as he contends enures in favour of the applicant. On section 23 of Decree No. 36 of 1998 to show that the oath of allegiance and oath of office are the function of the Chairman of Local Government Council to administer.

Before now, the parties had been locked in another litigation-predicated on an appeal against the over ruling of the preliminary objection by the present appellant as the appellant in an application against the present 4th, INEC, Lagos Mainland Local Government, as 1st, 2nd and 3rd respondents, respectively heard and determined in this court as appeal No. CA/L/371/99. In that case the 4th respondent in this matter took out at the court below a substantive action by originating summons claiming 6 (six) reliefs against the respondents thus:

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

(2) Perpetual injunction restraining the first respondent from parading, himself and acting as the AD elected Councilor for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State of Nigeria.

(3) An order restraining the second and third respondents from recognising the first respondent as the duly elected candidate or Councilor of AD for Lagos, Mainland Local Government Area of Lagos State of Nigeria.

(4) An order of mandamus compelling the 2nd respondent to issue Certificate of election to the appellant and not the first respondent or any other person.

(5) An order of mandamus compelling the 3rd respondent to recognise the applicant as the duly elected candidate of AD for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State of Nigeria.

(6) An order compelling the second respondent to withdraw from the 1st respondent and cancel the certificate of election given to the first respondent

The two sets of respondents as identified herein have jointly mounted stiff opposition to the application. Not only have they filed their respective counter affidavits (as reproduced above) each set has flied preliminary objection to the application also set out herein. I am obliged to take them first. They raise serious issues of jurisdiction. And jurisdiction being a fundamental question has to be settled first. See Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1.

The applicant has in taking exception to the preliminary objection made a point of the propriety of the matters raised in the preliminary objection. It seems to me that however grave, they might seem that they are directed not against the instant application per se but against the substantive issues raised in the main appeal and the court should advert to their prejudicial effect to the issues in the appeal if taken at this stage when the appeal has yet to be entered. They were raised at the court below which upheld them hence the present appeal to this court. Surely, if the matters of the preliminary objections would prejudice, aibeit prejudge the issues in the substantive appeal it stands to reason that the applicant would be justified in contending that they are premature. In that regard, the grounds of appeal become highly crucial in canvassing that stance in this proceeding. The grounds of appeal are set forth below without their particulars.

“1. The learned trial Judge erred in law when he held that the cause of this action deals with an election issue and that the claim of the appellant and reliefs sought are matters that ought appropriately to be referred to the Election Tribunal sitting in Lagos State.

2. The learned trial Judge misdirected himself in law when he held that the decision of the Court of Appeal did not make the order which the appellant sought the order of mandamus of the that Court to compel the 1st respondent to carry out.
3. The learned trial Judge erred in law when he held that the claim of the appellant and the reliefs sought are matters that ought appropriately be referred to the Election Tribunal sitting in Lagos State.
4. The learned trial Judge erred in law when he held that the Local Government Law of 1976 and Sections 167, 168,169 thereof are still extant inspite of Cap. 213, Laws of Federation 1990. Decree 111 of 1993, Decree No. 36 of 1998 and the Local Government (Administration) Law of Lagos State 1999.
5. The learned trial Judge erred in law when he held that the appellant/applicant’s failure to serve pre-action notice of intention to sue is fatal to the plaintiffs action and thereby struck out the appellant/applicant’s case”

After a careful examination of the above grounds of appeal side by side, the issues raised in the preliminary objections (also reproduced herein) there can be no doubt that the issues canvassed in the preliminary objections have formed the basis of the applicant’s grounds of appeal. This is understandable as they were raised at the court below. In the circumstances, not only is it not permitted to delve into the substantive issues raised as complaints to be dealt with in the main appeal at the interlocutory stage the instant matter has in addition raised the greater concern that the court is otherwise being asked to pronounce on such serious issues in the preliminary objections even without the benefit of the record of appeal or bundle of documents of the proceedings of the court below (as Exh. ‘OS’ in this case) to guide it in its deliberation. Put in other words without the appeal being entered the preliminary objections would be matters discussed in the abstract. That is to say, that any argument founded on any issues in the preliminary objection pertaining to issues of facts would be purely academic and speculative. The further implication of my reasoning is that for the present appeal to be considered in this court the record of appeal or a bundle of documents such as Exh. ‘OS’ in this matter has to be in place. I am satisfied that the matters in the preliminary objections cannot be heard at this stage as they concern the substantive issues in the main appeal, it cannot be heard in vacuo, that is, without the record of appeal. The combination of the foregoing fact situations have tended as it were, to immobilise the instant preliminary objections. There is therefore merit in contending that the preliminary objections are rather premature. The objectors are advised to keep their powders dry and bid their time. The issue in the preliminary objections are properly matters for the appeal and they will be looked into from that con. See the case Effiong v. Ironbar (1998) 13 NWLR (Pt.582) 367; Nwosu v. Offor (l997) 3 NWLR (Pt.487) 274 at 282; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt.448) 255 at 260. In short, without the bundle of documents – Exh. ‘OS’ the issues taken in the preliminary objection would defy resolution on merits.

Furthermore, having heard learned counsel on both sides in the matter and in furtherance of the decision of the Supreme Court in Nwosu v. Offor (1997) 2 NWLR (pt.487) 274 as per Ogwuegbu JSC as regards the limitation of preliminary objection and matters that cannot be decided at that stage without going into the merits of the matter i.e. the substantive matter. I have to firstly deal with the opposition raised by the two sets of respondents particularly as regards the first 3 (three) reliefs in the instant application for a departure from the rules to allow the use of compiled bundle of documents marked Exh. ‘OS’; to accelerate the hearing of the appeal and abridge time to file briefs of argument. It is almost an accepted practice in our courts now not to oppose applications for departure from the rules so that an appeal as the present one could be heard expeditiously on a bundle of documents assembled by the appellant. Order 6 Rule 2 has provided this useful by pass. And it is being exploited by most appellants as a way to move their appeals forward. This is always followed, as it were, with supportive reliefs as abridgment of time to file briefs of argument and for accelerated hearing of the appeal. The procedure is predicated on the interest of justice and the courts are empowered under Order 6 Rule 2 of the Court of Appeal Rules as amended to accede to such prayers in most cases with liberty for the respondent to complement such bundle of documents wherever necessary. Order 6 rule provides thus:

‘The court may direct a departure from the Rules in any way when this is required in the interest of justice’.

The provisions are clear and free from any ambiguity.

The grounds for so applying for reliefs 1, 2 and 3 are sufficiently averred in the supporting affidavit and the affidavit of urgency and they are very cogent and compelling reasons and the counter affidavit has not dented their materiality in any way whatsoever. Anyone used to our appeal system particularly as regards compiling of Records of Appeal would attest to the excruciating experience of getting records of appeal complied by the registry. It could take as many as three to four years to compile. I find the reliefs tenable.

I now come to the merits of the remaining reliefs in the instant application and the supporting affidavit and paragraphs 1 to 16 of the affidavit of urgency also in support of the application. I must however observe that the applicant has asked for orders for injunction against the two sets of respondents i.e. the 1st and 2nd respondents and the 4th respondent. The two crucial factors to satisfy rolled into one consist of whether the applicant has any legal right to protect which monetary damages cannot be an adequate compensation. The averments in the affidavit in support speak in sufficient terms of the legal rights of the applicant and it is not in dispute that there is a substantial issue to adjudicate upon in this matter. There is also exhibited to the affidavit a judgment of this court as per Appeal No.CA/L/371/99 which in substance dismissed all the claims of the 4th respondent as herein before set forth. The parties were by that judgment restored to their relative positions of status quo ante bellum.

The fate of the 4th respondent with regard to being the Councilor for Ward ‘F’ (180) Lagos Mainland Local Government appears sealed by that case. The purport being that this court’s judgment in CA/L/137/99 amounts to the courts refusal to declare the 4th respondent the elected Councilor for Ward ‘F’ (180) Lagos Mainland Local Government Council, and to cancel the certificate of return of election issued by INEC to the present applicant. It is not disputed that the applicant has since the election of 5/12/98 been issued with Exh. ‘OS’ Certificate of Return of Election by the Independent National Electioral Commission. I am satisfied that the applicant has made out a case to sustain prayers 1, 2, 3, 4 and 5 sought in the application.

This court makes the following orders:

(1) The application for a departure from the rules is hereby granted.

The appeal is to be heard on the bundle of documents attached to this application and referred to as Exh. ‘OS’ in the para. 18 of the affidavit in support.

(2) The respondents is at liberty to file such other additional papers to Exh. ‘OS’ as they may consider necessary within 21 days from today.

(3) The appeal is to be heard as soon as the briefs are filed.

(4) As regards prayers 4 the 1st, 2nd respondents are hereby restrained from recognising the 4th respondent as Councilor for Ward ‘F’ (180) Lagos Mainland Local Government or further permitting him to occupy and function in that office pending the hearing and determination of this appeal.

(5) As regards prayer 5, the 4th respondent is hereby restrained from further parading himself as Councilor for Ward ‘F’ (180) Mainland Local Government or further performing the functions or enjoying the privileges, perks, perquisites of the office pending the hearing and determination of this appeal.

(6) Prayer 6 is hereby refused as it is the very substratum of the appeal and is hereby struck out.

(7) Parties have to file their briefs of argument. The applicant is at liberty to file in the shortest time the appellant’s brief as the respondents time starts to run from the date of service of the appellant’s brief on them.

I make no order as to costs.

---

Other Citations: (2000)LCN/0910(CA)