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

LawGlobal-Hub Lead Judgment Report

GALADIMA, J .C.A.

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

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

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

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

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

“Ground One

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

Ground Two

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

Ground Three

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

Ground 4

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

Ground 5

The learned trial Judge erred in law when she relied on further and better affidavit sworn on the 17th day of June, 1999 despite opposition thereto by the counsel to appellant.”

In his brief of argument, the Appellant formulated 5 issues for determination as follows:

“5.01. Whether the issue involved and reliefs claimed in the 1st respondent’s originating motion were not against the election and or return of the appellant as against the 1st respondent and if the answer is in the affirmative whether the High Court of Lagos State has jurisdiction to hear and determine questions on election that had been conducted in view of sections 20,80,81,84,99 and Schedule 4 Article 36 of Decree No. 36 of 1998?.

5.02. Whether an issue of fraud has been properly raised in the 1st Respondent’s originating motion and whether such issue of fraud can be tried on an originating process?

5.03 Whether the Independent National Electoral Commission was not an agency of the Federal Government by virtue of Decree No.17 of 1998 and if the answer is in the affirmative whether the High Court of Lagos State has jurisdiction to entertain the originating motion in view of S. 251 of 1999 Constitution and the decision of the Court of Appeal in University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706?.

5.04 Whether the Honourable Court can regard the further and better affidavit as properly filed without obtaining the leave of court and whether the Honourable Court can properly rely on same?

The 1st respondent on the other hand formulated 4 issues for the determination of the appeal as follows:

2.01. Whether the learned trial Judge had jurisdiction to entertain first plaintiff/respondent’s originating motion for judicial review in suit no. M/238/99 against the fraudulent announcement by the Independent National Electoral Commission of the name of the appellant, Mr. Sunday Ogunbiyi Obasanya as the councillor for Ward “F” of the Lagos Mainland Local Government Area on the 5th day of December, 1998?.

2.02 The second issue for determination in this appeal is whether the issue of fraud can be tried on an originating process.

2.03 The third issue for determination in this appeal is whether the first Respondent’s originating motion under suit no. M/238/99 is statute barred. The fourth issue for determination in this appeal is whether the first respondent’s non-compliance with any rules of the High Court of Lagos State 1994 is fatal to the originating summons under suit no. M/238/99.

It is now necessary to recapitulate the facts which led to the dispute out of which this appeal has arisen. The affidavit in support of the originating motion filed by the 1st Respondent reveal the following facts:

“That a Local Government election was conducted throughout the Federal Republic of Nigeria on the 5th day of December, 1998.

3. That I was the candidate of my party, Alliance for Democracy, (AD) for Ward ‘F’ of Lagos Mainland Local Government Area of Lagos State.
4. That I was duly elected by members of my party in my ward as my party’s flag bearer and my name was duly presented to the second respondent by my party (AD).
5. That the first respondent is a member of my party but he did not contest in my party’s primary.
6. That I contested for my party’s ticket along with three other contestants in November and I came top following which my name was submitted to INEC as the party’s candidate. Attached herewith is INEC Form EC 40, i.e. Forms for nomination of candidate for Local Government councillorship election dated 25th November, 1999 and INEC Form CF 003 dated 28th November, 1998 in which my names appear as No.6 and candidate for Ward ‘F’ Exhibit “SB and “SB1” respectively.
7. That my party in my ward, acting through the Local Government Chairman Mr. Rasheed Amobi accompanied me and the other candidates for the other wards in the Government to INEC state office for screening.
8. That I was duly screened by INEC at the Local Government Secretariat No. 198 Herbert Macaulay Street, Yaba, Lagos.
9. That I was not disqualified at the screening and my party at the Local Government level subsequently paid for the nomination form, collected same and gave us, including myself to complete which I did accordingly and returned to the party and the party forwarded same to the second respondent. The second respondent’s official receipt no. 011401 dated 10th November, 1998 and the nomination form, Form EC 4D are attached herewith and marked Exhibits “SB2” and “SB3” respectively.
10. That the second respondent consequently released FORM CF 003 referred to in paragraph 5 above.
11. That after collation of the result my party was declared winner of the election on the night of 5th/6th December, 1998 for my ward, – a result which make me, the party’s flag bearer, the winner.
12. That to my surprise however the second respondent returning officer to the Local Government declared the first respondent as the AD candidate and winner of the election in my stead.
13. That first Respondent knowing that he was not the party’s candidate did not campaign for the election and came to my house to congratulate me after it was declared that AD won the election,before he heard that it was his name that was announced as the winner of the election, under the party AD’s ticket.
14. That the party at the ward and local government level immediately took steps to alert INEC that I was and I am still AD’s candidate that won the election. The letter written by AD Ward ‘F’ to the Electoral Officer is attached herewith and marked Exhibit “SB5”
15. That even when the names of some other candidates of my party for other wards were substituted by the second respondent acting in compliance with the State Party Chairman directive contained in letter dated 28th November, 1998. My ward and I were not affected consequent upon which my name remain as the candidate for Ward ‘P’. The State Chairman’s letter to the second respondent and the second respondent’s second Form CF 003 dated 30th November, 1998 are attached and marked Exhibits “SB6” & “SB7” respectively.
16. That my Local Government branch of my party also wrote the second respondent on the matter and the letter is attached herewith and marked “SB8”.
17. That following protests from me and all concerned, including the party’s agent at the local government secretariat on the night the election was announced by the returning officer, who accepted the mistake and corrected the error.
18. That we made it clear to the second Respondent that the first Respondent was not a candidate in the election and as such did not campaign to the electorate while I did. Copies of my campaign posters and hand bill are attached herewith and marked exhibit “SB9” and “SB10” respectively.
19. That later the first Respondent backers put pressure to bear on second respondent officials that they must stick to the candidate announced as winner of the election on the platform of AD; i.e. the first respondent. We confirmed the new development and learnt that my name would be deleted from the certificate already written in my name and then in custody of the second Respondent just because his name was announced as the candidate of AD for the election instead of me. The second respondent have now carried out this threat.
20. The second Respondent certificate from which my names and address were tipezed and the names and address of the first Respondent substituted have been issued to the first Respondent and a copy is attached herewith and marked Exhibit “SB11”.
21. That unless the Respondents are restrained as prayed I will be denied of my right to represent my ward inspite of the fact that I am the only elected candidate of my party and the electorate in the ward and the person not elected will usurp my place in the council.
22. That the Respondent will suffer no injury if my prayers are granted accordingly.

The appellant filed a notice of preliminary objection to the 1st Respondent’s application seeking for the following orders and reliefs.

“1. An order accelerating the hearing of this suit.

2. An order dismissing this originating summons or motion filed in this suit.

Alternatively

An order striking out this suit.

The grounds upon which the notice of preliminary objection is brought are:

(i) The Honourable Court lacks jurisdiction to entertain his suit/originating summons.

(ii) The plaintiff/respondent’s suit is statute-barred

(iii) The plaintiff/respondent’s suit or originating motion discloses no reasonable cause of action. (iv) The action is vexatious and constitutes an abuse of process of court.

(v) The suit is incompetently commenced by way of originating summons.

(vi) The action is incompetent.

As stated above, it is against the ruling of Hon. Oke J. which was delivered on the 14th day of July, 1999 and which he overruled the appellant’s preliminary objection to the 1st Respondent’s originating motion, that the appellant, now appealed against to this court.

For the determination of this appeal, I would be guided by the issues raised by the Appellant in his brief of argument. For the convenient consideration of these issues, the first, third and fourth issues which are very germane to this appeal are to be taken together. Thereafter the 2nd issue, could be considered lastly.

In his ruling dismissing the appellant’s preliminary objection, the learned trial Judge held thus:

“I have carefully perused the reliefs being sought by the plaintiff as contained in the originating summons filed, and it is clear that the plaintiff is not complaining about nor questioning the validity of the election conducted on 5/12/98 by the 2nd defendant/respondent at all. The plaintiff has run to court seeking to enforce his right as to hold the office of a councillor having duly contested the election and won and was declared so based on the exhibits attached to the affidavit in support of the originating summons, but the 2nd defendant having fraudulently given his certificate of return to another person who did not contest the election. I hold that the plaintiff has every right to come to court to enforce his right and to challenge the alleged fraud in question. There is therefore a clear cause of action in the originating summons which Honourable Court can look into and has jurisdiction to look into.”

From the above quotation, the learned trial Judge held as follows:

(i) that the complaint or the cause of action in the plaintiff s originating summons does not have to do with the conduct of the election held on the 5/12/98.

(ii) that the relief being sought by the plaintiff is the enforcement of his rights to hold the office of a councillor.

(iii) that the complaint of the plaintiff is the denial by the 2nd defendant (INEC) of the certificate of return of election and the issuance of same to the 1st defendant/appellant.

The real issue involved in the plaintiff originating summons is about the propriety of the return of the 1st defendant as councillor in the Local Government election held on 5/12/98. Clearly, the reliefs sought by the 1st respondent in the originating summons and the facts deposed to in the affidavit in support of the summons all goes to prove this fact.

In his affidavit in support of the summons 1st respondent deposed that he was the candidate nominated by his party and screened for election. It was further stated that he stood for the election and his party was declared winner. According to him the appellant was declared by the returning officer as the A.D. candidate who won the election instead of himself, the plaintiff.

1st Respondent as plaintiff claimed to have protested to the returning officer and the error was corrected. It would appear the INEC officials still maintained the error and decided to uphold the initial declaration of the appellant as the winner and he was eventually issued with the certificate of return of election. There is no doubt that the plaintiffs case devolves on the election and return of the 1st defendant as the councillor elect in the elections held on 5/12/98.

I am of the firm belief that the rights and indeed, the remedies in every aspect of the Local Government election conducted in that election can only be found in the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. This is the enabling Decree which guided the conduct of the election and any other incidential matters. It is the only extant piece of legislation that can and must always be resorted to when resolving any manner of dispute which arises from the conduct of Local Government Elections which is the subject matter of this suit.

Section 80 of the Decree No. 36 has provided the remedy for the plaintiff’s complaints of undue election or undue return of the appellant. The resolution of the issue and the consideration of the prayers contained in the originating summons are not clearly accommodated in the Decree but can only be squarely addressed by a recourse to the provisions of the Decree S.80 provides:

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

(Italics mine for emphasis).

Section 83 provides thus:

“83(1) An election petition may be presented by one or more of the following persons:

(a) A person claiming to have had a right to contest or be returned at an election or

(b) A candidate at an election.

(2) ….”

Equally important and worthy of note are sections 99 and 84(1) (d) of the Decree. Section 99 defines “Return” thus:

“Return” means the declaration by a Returning Officer of a candidate in an election under this Decree as being the winner of the election.”

While section 84 (1) (d) of the Decree provides:

(84)(1) An election may be questioned on any of the following grounds, that is:-

(a) ….

(b) ….

(c) ….

(d) that the petitioner was validly nominated but was unlawfully excluded from the election.”

By virtue of sections 84(1) (d) and 99 (1) and paragraph 7(2) to Schedule 4 of Decree No. 36, when read together, a person who was validly nominated, screened and cleared to contest an election but unlawfully excluded from the election is entitled to present a petition against the Independent National Electoral Commission for his unlawful exclusion. See Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260 at 277.

The issues in the 1st respondent’s action is the determination of the validity or propriety of the return of the appellant as the winner of the election as against the 1st respondent. It is clear that the reliefs sought are also aimed at remedying the complaints of the 1st respondent whether they are genuine or not. The complaints made and the reliefs sought are against the election and are embodied. They can only be determined by making reference to the Decree No. 36.

The question now is whether the High Court has jurisdiction to hear and determine questions on election that had been concluded. The learned trial Judge in her ruling held thus:

“I hold that the plaintiff has every right to come to court to enforce his right and to challenge the alleged fraud in question. There is therefore a clear cause of action in the originating summons which this Honourable Court can look into and has jurisdiction to look into. See Anya v. Iyayi (1993) 7 NWLR (Pt. 305) 290 Ratio 12. I further hold that whenever the civil right of a person is in issue and that person has come to court for the protection of such right the court has jurisdiction to entertain same. I therefore hold that the plaintiff’s action is proper before this Honourable court.”

Here it is quite clear that the learned trial Judge in rejecting the argument of the appellant’s counsel on the application for dismissal of the action, held that rather than the question of undue election or undue return of election as contended being the issue involved, what is involved is the ‘civil right’ of the plaintiff. In her opinion the dispute between the parties involves the question of the ‘civil right’ of the plaintiff/1st respondent and therefore he is perfectly entitled to approach the court to seek for the protection for such right. With due respect, the learned trial Judge failed to appreciate the clear and real issue in the 1st respondent’s action. From the facts as presented before the lower Court the action is a challenge of the return of the Appellant as a councillor. To my mind, this makes this action in substance and circumstantially only maintainable for an election petition before the election Tribunal. See Sections 80, 83, 84, 90 and Schedule 5 of Decree No. 36 of 1998 (supra).

The 1st Respondent as plaintiff is questioning or challenging the return of the appellant.

By virtue of the provision of Section 80 (supra) no other court or tribunal I shall be entitled to or be vested with the jurisdiction to look into and determine any question connected with or relating to the election or its conduct except the Election Tribunal.

From the number of decisions of the Supreme Court and indeed the Court of Appeal, it would appear that the learned trial Judge really misconceived the correct nature of the plaintiff’s action by holding that the complaints concern his ‘civil right’ and he was to protect such rights and therefore vest jurisdiction in the trial Court, contrary to the declarations made by the learned trial Judge election petition matters which are basically complaints about election or conduct of election do not really deal with civil rights and obligations which entitles the High Court to entertain.

In Orubu v. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323 at 347 Uwais, J.S.C. (as he then was) whilst referring to the Local Government Elections Decree No. 32 of 1987 said inter alia:

“an election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which, by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which gives rise to ordinary or general claims in court.”

In the case of Resident Electoral Commissioner v. Nwocha (1991) 2 NWLR (Pt. 176) at 749-750 Uwaifo, J.C.A. (as he then was) has this to say:

“Election petitions are proceedings sui generis and are not considered to be identical with other civil proceedings. They do not really deal with civil rights and obligations properly so-called.

statute creating election processes and procedures for election petitions lays down specific ambits as to when, how, and why election petitions may be brought and the regimented periods for certain steps, quite different from the ordinary civil proceedings.”

Assuming that the plaintiffs action could be properly brought before the lower Court, which is not likely, the originating summons is fundamentally defective and incompetent.

Order 3 Rule 2(2) of the High Court of Lagos State 1994 provides:

“2(2) proceeding may be begun by originating summons where –

(a) the sole or principal question at issue is, or likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law, or

(b) there is unlikely to be any substantial dispute of fact. Before a proceedings can be commenced by originating summons, the construction of a written law, or instrument made there-under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action. This is not the situation with the plaintiffs case. There are no questions of construction of a written law posed for determination before the lower Court upon any deed, will, contract or other document or written law whatsoever. Plaintiff simply brought before the court prayers or reliefs. I do not think there are materials placed before the learned trial Court for her to determine the sustainability of the reliefs being sought, on this premise alone, the lower Court ought to have struck out the plaintiffs originating motion. It runs counter to the various causes of actions that can be maintainable by originating process as provided by the rules. The second leg of the order 3 rule 2 provides that originating summons should only be used where the facts are unlikely to be disputed. Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and if used it should be discountenanced. See NBN & Anor v. Alakija (1978) 2 LRN. 78 (1978) 9-10 SC 59 See also Doherty v. Doherty (1968) NMLR 144; Unilag v. Aigoro (1991) 3 NWLR (Pt. 179) 376; Anatogu v. Anatogu (1997) 9 NWLR (pt. 519) 49. In view of what have been said above, I feel the lower Court lacked jurisdiction to entertain plaintiff’s action both in its form and substance. I also hold that the case of Anya v. Iyayi (supra) cited in the ruling of the learned trial Judge is totally irrelevant. The facts of and the decisions in that case are at variance with the facts of and issues in the present case.

The case of Anya concerns the challenge of dismissal of Dr. Iyayi a public officer by the visitor of the University of Benin which the Supreme Court affirmed. What is involved in the present case is neither a question of the validity of dismissal of a public officer or the validity of the exercise of such power of dismissal. Rather, it is the question of validity of election or return at an election. May I also quickly observe that an order of mandamus which is one of the reliefs claimed by the plaintiff in his originating motion has a special procedure under Order 42 rules 1 and 3 of the High Court of Lagos State (Civil Procedure) Rules 1994. The applicant for mandamus must amongst other things commence same by an ex-parte application for leave which shall be supported by a statement stating the name and description of the applicant; the relief and the grounds and an affidavit verifying the facts relied on. Before the main motion is deemed brought before the court such ex-parte application for leave must have been granted by the Court. The plaintiff failed to comply with the provisions of the rule guiding mandamus proceedings.

The reasonable conclusion I am bound to draw therefore from all that I have observed is that the plaintiff’s originating motion grossly defies the rules and all the conditions precedent to the grant of it.

No application for judicial review can be made (whether in a civil or criminal matter) unless leave to apply for judicial review has been obtained. See A.G. Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256) 711; Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797; Ulegede v. Comm. of Agric. Benue State (1996) 8 NWLR (Pt. 467) 437, Re Inland Commissioners, Ex-parte National Federation of self employed v. Small Business Ltd. (1982) A.C. 617.

Where a statute provides a particular method of performing a duty that method alone and no other must be adopted and complied. See Co-operative & Commerce Bank Nig. Plc. v. A.G. Enugu State (1992) 7 NWLR (Pt. 261) 528; Okolo v. Anyakwo v. Anyako (1999) 3 NWLR (pt. 594) 289.

Having disposed of the main issue in this appeal, I would now briefly gloss over the remaining issues. Even without due consideration of the remaining issues that would not alter the firm stand I have already taken regarding the incompetence of the plaintiff’s application before the lower Court.

The next issue in order of which I prefer to consider them are issues Nos. III and IV. I will take them together.

Issue No.3 is whether the INEC is an agency of the Federal Government by virtue of Decree No. 17 of 1998, and if the answer is in the affirmative, whether the High Court of Lagos State has jurisdiction to entertain the originating motion in view of S. 251 of 1999 Constitution and the decision of the Court of Appeal in University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706.

In the submission of learned Counsel for the appellant before the lower court he had contended inter-alia that INEC being an agency of the Federal Government cannot be sued in a State High Court by virtue of S. 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993 and S. 251 of the 1999 Constitution. It would appear the lower court completely disregarded the argument that since the matter before the court involves the question of the plaintiff’s “civil right”, the High Court would exercise its unlimited jurisdiction as provided in S.272 of the 1999 Constitution to entertain the action notwithstanding the status of INEC as an agency of the Federal Government.

INEC was established by Decree No. 17 of 1998. It is saddled with the responsibility of conducting elections into all elective offices in the 3 tiers of the government. Section 230 of Decree No. 107 of 1993 amended S. 230 of the 1979 Constitution subsection (1) (P) (Q) (R) and (S) of the Decree is in pari materia with S. 251 of the 1999 Constitution.

The ambit and purport of S. 230(1) (q) (r) (s) if as relates to the Federal Government or “any of its agencies” with respect to the jurisdiction of the Federal High Court was expounded in the case of University of Abuja v. Ologe (supra) per Oguntade, J.C.A. at page 724 – 725 thus:

“Whilst it is a correct view to say that the Federal Government may, like any individual or body appoint an agent for its purposes, there can be no doubt from a close perusal of S. 230 (1) (q)(r) and (s) of Decree No. 107 of 1993 that the intention of the lawmaker is to confer jurisdiction upon the Federal High Court over the suits concerning the Federal Government in respect of its functions and all the organs it uses for the performance of such functions. It seems to me that the use of the expression “any of its agencies” in the Decree No. 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions …. One simply has to look at Decree 107 of 1993 and what it set out to achieve and then relate this to the ordinary functions of the Federal Government.”

Following the exposition of S. 230 (2) (r) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993 which provisions have been substantially incorporated into S. 251 of the 1999 Constitution, it can be said, without fear of contradiction, that the INEC is an organ established by the Federal Government as her agency through which she carries out her statutory functions of ensuring the participation by the people in their governance. The establishment of INEC vide Decree No. 17 of 1998 and its amendment Decree No. 33 of 1998 are both made pursuant to the legislative powers of the Federal Government under the Constitution or enabling Decree and by virtue of item 21 part 1of 2nd schedule in the Exclusive Legislative list 1979 Constitution and item 22 in the same schedule of 1999 Constitution. The functions of INEC In this regard are further specified in SS. 2,71,72,73,74,75,76,77 and 78 of Decree No. 33 of 1998. It is in view of the foregoing and the reliefs for injunction and declarations sought by plaintiff, there is no gainsaying that the only reasonable conclusion is that INEC is a Federal Government agency through which it fulfills its constitutional functions.

Consequently, the High Court of Lagos State or any State High Court for that matter has no jurisdiction to try any matter for a declaration or injunction against the Federal Government or its agencies, in this case the INEC. The Fourth Issue is whether the plaintiff’s action is statute-barred. Having held that the action is totally incompetent and the lower court lacked jurisdiction to try the matter it would appear unnecessary to determine and pronounce on the 4th issue. However, for the avoidance of doubt, the plaintiff’s action is statute barred even assuming it was to be considered on its merit.

Section 82 of Decree No. 36 provides that an election petition under Decree No. 36 of 1998 “shall be presented within 14 days from the date on which the result of the election is declared.”

Furthermore, Article 2 of Schedule 5 of the Decree No. 36 provides thus:

“2(1) An election petition relating to a Local Government or Area council election shall be heard and determined within 60 days from the date on which the petition is filed.

(2) Notwithstanding the provisions of any other enactment, an appeal arising from the decision of the Election Tribunal on an election petition relating to a Local Government or Area Council election shall be heard and determined within 30 days from the date on which the appeal is filed.”

The election forming the subject matter of this action was conducted on the 5th December” 1998. The result of that election was also declared on the night of that election. If the mandatory provision of 14 days in S. 82 of the Decree were to be observed the plaintiff ought to have petitioned at a date not later than the 19th day of December, 1998.

In paragraphs 10 and 11 of the plaintiff’s affidavit in support, on his own showing, the plaintiff was already aware of the return of the appellant on the night of 5th December.

For the plaintiffs petition of the appellant’s return to be valid it must not only be presented within 14 days but must also have complied with all other requirements of the Decree No. 36 of 1998. See Alataha v. Asin (1999) 5 NWLR (Pt. 601) 32 at 44.

The time for the plaintiff to present the petition on his own showing began to run on the 6th of December when he was declared as the winner of the election.

Since the plaintiff was aware of the return of the appellant as from 6th of December, 1998, and he had 14days to present his petition such petition ought not to have been brought later than 20/12/1998. Plaintiff instituted this action well after the expiration of the mandatory prescribed period and on 24/5/99, which is over five months after. The plaintiffs originating summons is clearly statute-barred. The plaintiff cannot circumvent the provisions of the Decree No. 36 of 1998 to vest jurisdiction on the court. The court lacks jurisdiction and the action cannot be entertained even if it were brought before an Election Tribunal which had long wound up in any case. The learned trial Judge knew this and yet had to assume jurisdiction.

The Second issue is whether an issue of fraud has been properly raised in the 1st respondent’s originating motion, and whether such issue of fraud can be tried on an originating process.

The learned trial Judge in her ruling had held that “the plaintiff has every right to come to Court to enforce his right to challenge the alleged fraud in question”. She further held that from the averments as placed before the court the issue at hand deals with fraud and not the validity of an election.

I have carefully reproduced the affidavit in support of the plaintiff’s complaints above. It would appear that the case made by the plaintiff does not raise the issue of fraud. The complaint is that the appellant was allegedly returned as councillor-elect as against the plaintiff. If issue of fraud is raised, the alleged fraud ought to have been specifically pleaded; the particulars of the fraud provided and the allegation strictly proved. To impute fraud that is a very serious offence. It needs to be pleaded with particularity and it must be proved. See the case of Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511. Also see Order 17 rule 5(1) of the High Court of Lagos State Civil Procedure Rules 1994, states clearly that where any party relies inter alia on an allegation of fraud in his pleadings, all the relevant particulars of fraud must be furnished. Failure by the party to furnish such particulars in the pleadings that party would not be taken to have properly raised or relied on such fraud. See Olufunmise v. Falana (1990) 3 NWLR (Pt. 136) 1 at 10. Having failed to specifically plead fraud and state its particulars or make any claim there-under in the originating summons no issue of fraud is by plaintiff before the court for the learned trial Judge to consider.

The provision of order 3 rule 2 of the High Court of Lagos State Civil Procedure Rules 1994, (supra) indicate quite clearly that the originating summons procedure is only suitable for cases where the sole or principal question is one of construction of document.In the construction of such documents, law or instruments no evidence is required or adduced. Facts constituting an allegation of fraud, by their very nature are, controversial. The fraud must be established by evidence in proof. I am of the opinion that the issue of fraud has neither been properly raised in the plaintiff’s action and neither can such issue even where properly raised be tried on an originating summons as erroneously held by the learned trial Judge.

It would appear the 5th issue which was distilled from the 5th ground was not argued. It is abandoned and it must be treated as such.

In conclusion, this appeal is meritorious. It is allowed. I make an order setting aside the decision and the ex-parte order of mandamus made by the lower court. I hereby order a dismissal of the plaintiff’s action.

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Other Citations: (2000)LCN/0840(CA)