An election was held on Saturday 12th December, 1987 to elect a Chairman for the Warn Local Government Council under the Local Government Elections Decree 1987. The candidates at the election were the petitioner, James G. Orubu, the 14th respondent Mr. A.O. Esin and two others. On the 27th January, 1988 the results of the poll were announced with the 14th respondent as the successful candidate. Earlier on to wit on 6/1/88 the petitioner had presented in a Warri High Court an election petition, purportedly under the Local Government Elections Decree 1987, hereinafter called the Decree wherein he sought the following reliefs:-
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"WHEREFORE your petition prays that it may be determined that the election in respect of the affected' Wards was void and be declared as such; and that no candidate be announced as having been elected Chairman of the Warn Local Government Council in view of the facts, events and circumstances connected with and/or arising from the election as averred herein."
On the same day the Warri High Court made the following order:-
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"I, having heard Chief A.O. Akpedeye on behalf of the Petitioner/Appellant I hereby order that the sum of N200.00 (Two Hundred Naira) be deposited by the Petitioner into this Court in compliance with Paragraphs 3(1) and (2) of Schedule 3 of the PROCEDURE FOR ELECTION PETITION under the LOCAL GOVERNMENT DECREE NO.37 of 1987. It is further ordered, that this Petition and all other subsequent Processes in these proceedings (that is the Election Petition) shall be served on the 3rd - 13th Respondents through the Third Respondent by depositing the said Petition and other subsequent processes on the Third Respondent for onward delivery to the 4th - 13th Respondents and such delivery/service shall be proper service for all purposes in this Election Petition. This Petition is transferred to Court IV."
After the announcement of the election results on 27/1/88, the petitioner filed in the High Court the following application on a motion ex parte:-
The application was taken ex parte by Omoluabi, J. on 29/1/88 and who ruled on it on the same day as follows:-
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"Order is granted as prayed. Accordingly E.O. Asin is hereby restrained from being sworn in as a chairman for Warri Local Government Council Area pending the determination of this suit whose hearing has been fixed for February 11, 1988.
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It is hereby ordered that this order shall be served on the said E.O. Asin forthwith together with all the other processes issued in this suit.
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(Sgd) J.A. Omoluabi
Judge
29/1/88."
The 14th respondent later by applications dated 5/2/88 5and 12/2/88 sought the following orders respectively:-
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an order discharging or vacating the Ex-parte order granted by this Honourable Court on the 29th day of January, 1988 restraining E.O. Asin from being sworn in as a chairman for Warn Local Government Council Area pending the determination on the substantive suit, without being heard." And
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"That the said Mr. E.O. Asin be struck out of the action having been improperly joined."Ruling on the application on 24/2/88, Omoluabi, J. held:-
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"..........................this application fails and it is accordingly dismissed in toto. In view of the contents of the petition, the order made herein on 29/1/88 is hereby reaffirmed and shall remain in force pending the final determination of this election petition. No order as to costs."
It is against this ruling that the 14th respondent appealed to the Court of appeal, Benin Division. To this appeal the petitioner took the following objection in that court:-
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"The appellant has no right to appeal; and if he has a right of appeal with leave, which is denied, he has neither sought nor obtained such leave. The result is that this Honourable Court has no jurisdiction to entertain this appeal, and the same should be struck out." Arguments were taken on the appeal and the preliminary objection to it together. Ruling on the preliminary objection, Ogundare J.C.A. in the lead judgment of the Court in which Musdapher and Ndoma-Egba, JJ. C.A. concurred held as follows:-
Section 220(l)(g)(ii) of the Constitution provides:
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An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases-
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decisions made or given by the High Court
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where an injunction or the appointment of a receiver is granted or refused."
It is not in dispute that the appellant herein sought to challenge the grant by the court below of an order of interim injunction in favour of the petitioner/respondent. That being so I agree with Mr. Akinrele that he had a right of appeal as of right to challenge that order. He is also challenging in this appeal the order of the court below joining the appellant as co-respondent to the petition. He can only appeal against that order of joinder with leave and as leave has not been sought nor obtained the appeal against the order of joinder is incompetent and is accordingly struck out."
In the end, Ogundare J.C.A. held as regards the appeal itself against the interlocutory injunction against the appellant there Mr. E.O. Asin, as follows:-
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"In view of all I have been saying above, I hold that the appeal against the grant of interim injunction succeeds, and it is allowed.
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The order of injunction made by the court below on 29/1/88 and reaffirmed on 24/2/88, retraining the appellant from being sworn in as Chairman of Warri Local Government is hereby set side."
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It is against this judgment that the petitioner has now appealed to the Supreme Court.
