HON. OLEMIJA STEPHEN FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR (2012)

HON. OLEMIJA STEPHEN FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR

(2012)LCN/5300(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of April, 2012

RATIO

RELIEF: MEANING AND NATURE OF DECLARATORY RELIEF

Black’s Law Dictionary 9th edition defines “declaratory relief” as “a unilateral request to a court to determine the legal status or ownership of a thing.” See also: Enekwe V. I.M.B. (Nig.) Ltd. (2005) 11 – 12

SC 3 @ 14 and 30. A declaratory judgment merely declares the rights of the parties. However, in seeking a declaratory relief, a claimant may go further in the same action to seek certain consequential orders, which would become enforceable upon the declaration sought being made in his favour. In the case of C.B.N. V. Amao & 2 Ors. (2010) 5 – 7 SC (Pt. I) 1 @ 31, the Supreme Court per Onnoghen, JSC set out the principles governing the grant of declaratory reliefs thus:

A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law;
The claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to relief in the fullest meaning of the word;
A declaration will only be granted where there is a breach;
The plaintiff must establish a right in relation to which the declaration can be made; hence the court will not generally decide hypothetical questions;
The relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant;
The relief should also not be contrary to the acceptable principles upon which the court exercises jurisdiction.

The case of Chukwumah V. Shell Petroleum (1993) 4 NWLR (289) 512 @ 553 was cited with approval. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

APPEAL: NATURE OF AN APPEAL

This is because an appeal is a complaint against the ratio decidendi of the decision appealed against. This court in: Miniibir & Anor. V. Minjibir & Ors. (2008) LPELR (Law Pavilion Electronic Law Report) EP-CA/K/EP/NA/20/07 held thus:

“It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus, any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an appellant’s right of appeal is confined within the decision appealed against. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

STATUTE: HOW SHOULD A CLAUSE OF A STATUTE BE CONSTRUED

Every clause of a statute should be construed with reference to the con and other clauses of the Act, so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. See: Ojukwu V. Obasanjo (2004) 12 NWLR (886) 169 @ 197 B – F; 210 B; 209 – 210 H – B: Dantsoho V. Muhammed (2003) FWLR (150) 1717 @ 1742 F-H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

APPEAL: EFFECT OF A DECISION NOT APPEALED AGAINST

A decision not appealed against remains valid and is deemed accepted by the person against whom it is given and therefore binding. See: Iyoho V. Effiong & Ors. (2007) 11 NWLR (1044) 31 @ 55 B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ondo State, Akure Judicial Division delivered on 24/6/09.

The Appellants herein were elected Chairmen of 18 Local Government Councils in Ondo State on 15/12/07. They took their respective Oaths of Office on 17/12/07. The term of office was for three years to expire on the 17/12/2010. Dr. Olusegun Agagu the erstwhile Governor of Ondo State swore them into office. On 14/4/07 elections were held into the office of the Governor of Ondo State. Dr. Agagu was returned elected by the Independent National Electoral Commission (INEC). Dissatisfied with the declaration, Dr. Olusegun Mimiko, one of the contestants filed a petition before the Governorship/Legislative Election Tribunal sitting in Akure seeking the nullification of Dr. Agagu’s return and a declaration that he is the Governor of the State. On 25/7/08, the Election Tribunal delivered judgment in favour of Dr. Mimiko and declared him the duly elected Governor of Ondo State, having scored the highest number of valid votes cast at the 14th April 2007 Governorship election.

Several appeals were filed against the decision of the Election Tribunal. On 23/2/09 the Court of Appeal nullified Dr. Agagu’s election and declared Dr. Olusegun Mimiko as the duly elected Governor of Ondo State. He was sworn in as Governor of the State on the 24/2/09. On 25/2/09 he froze all the accounts of the Local Government Councils wherein the Appellants were Chairmen and on the 4/3/09 he dissolved all the Local Government Councils.

Dissatisfied with the dissolution of the Local Government Councils, the Appellants filed an originating summons before the lower court on 10/3/09 for the determinations of the following questions:

“1. WHETHER under and by virtue of Section 7 of the Constitution of the Federal Republic of Nigeria, 1999, and Section 12(4) of the Local Government (Amendment) Law, 2007, the 1st Defendant can unilaterally and without acting on sanction of resolution supported by the two-third majority of the Ondo State House of Assembly dissolve any or all of the Local Government Councils in Ondo State presided over by the 1st to 18th Plaintiffs.

2. WHETHER the act of unilateral dissolution of the eighteen Local Government Councils in Ondo State legally presided over by the 1st to the 18th Plaintiffs by the 1st Defendant on Wednesday the 4th day of March, 2009, without acting on sanction of resolution supported by the two-third majority of the House of Assembly of Ondo State is constitutional, legal, valid and effective.”

In the event that the above quoted questions were answered in the negative, they sought the following reliefs:

“3. A DECLARATION that the purported dissolution of the eighteen Local Government Councils in Ondo State legally presided over by 1st to 18th Plaintiffs by the pronouncement of the 1st Defendant made on Wednesday, the 4th day of March, 2009 as unconstitutional, unlawful, illegal, invalid, null, void and of no legal consequence whatsoever and however.

4. AN ORDER SETTING ASIDE the purported dissolution of the eighteen Local Government Councils legally presided over by the 1st to the 18th Plaintiffs by the 1st Defendant on the 4th day of March, 2009 on the ground that the act was unconstitutional, illegal, null and void.

5. AN ORDER OF INJUNCTION restraining the 1st Defendant from dissolving the eighteen Local Government Councils in Ondo State or terminating the three year tenure of the 1st to the 18th Plaintiffs as guaranteed under the Local Government (Amendment) Law 2007.

6. AN ORDER restraining the 1st Defendant from nominating and/or presenting to the Ondo State House of Assembly the name or names of any person(s) for the purpose of constituting or reconstituting any committee either by the name of caretaker or whatsoever name called for the purpose of administering the offices of the 1st – 18th Plaintiffs.

7. AN ORDER reinstating the 1st to the 18th Plaintiffs to their positions as Executive Chairmen of their respective Local Government Councils in Ondo State.”

The respondents (also respondents in this appeal) filed a counter affidavit dated 16/3/09 in opposition to the originating summons. (at pages 13 – 15 of the record) They also filed a counter claim on the same date seeking the following reliefs:

“1. A DECLARATION that the 1st Defendant did not need to have any sanction or resolution of the Ondo State House of Assembly before taking the action taken on the 4th of March, 2009 as the Executive Governor of Ondo State with respect to the administration of Local Government Councils in Ondo State.

2. A DECLARATION that the Plaintiffs were never duly or legitimately elected as Chairmen of the Local Government Councils in Ondo State and as such cannot lay claim to have at whatever time legally presided over the said Local Government Councils.

3. A DECLARATION that the purported elections of the Plaintiffs as Chairmen of Local Government Councils in Ondo State are null and void and of no effect whatsoever.

4. A DECLARATION that having regard to the expediencies and circumstances on ground on the assumption of office of the 1st Defendant as Executive Governor of Ondo State, the 1st Defendant was justified and entitled to take the step taken on 4th March, 2009 with respect to the administration of Local Government Councils in the state.

5. AN ORDER restraining the Plaintiffs from parading themselves as Chairmen of Local Government Councils in Ondo State and from taking any step(s) towards taking over the offices of the Chairmen of the Local Government Councils in the state and/or from doing anything capable of disrupting the smooth running and administration of the various Local Government Councils in the State.”

(See pages 16 and 17 of the record)

The respondents also filed a “further counter against affidavit in support of the originating summons” dated 27/3/09 (page 158 of the record) wherein they raised issues concerning the legitimacy of the appellants’ election. In reaction thereto the appellants filed a further and better affidavit against the further counter affidavit of 27/3/09 dated 1/6/09 (page 240 of Vol. II of the record). Although the Labour Party was not a party to the suit one Dr. Olaiya Oni, the Labour Party Chairman in Ondo State on 2/6/09 deposed to a reply to the further and better affidavit of Bode Omoyeni filed on 1/6/09. A 2nd further and better affidavit dated 8/6/09 was also deposed to on behalf of the appellants.

At the hearing of the originating summons on 12/6/09, the learned trial Judge listened to the submissions of Otunba K. Kalejaiye, SAN leading a host of senior and junior lawyers on behalf of the plaintiffs; J.O. Baiyeshea, SAN leading several lawyers on behalf of the 1st respondent and Eyitayo Jegede Esq., SAN the Hon. Attorney General of Ondo State and 2nd respondent herein leading several senior counsel from the Ministry of Justice urging their respective positions on the court. Thereafter, in a considered judgment delivered on 24/6/09 His Lordship N.S. ADEYANJU, J. dismissed the plaintiffs’ claims and granted the counter claim in part. At pages 375 – 377 of Vol. II of the record His Lordship held inter alia as follows:

“Section 7 of Schedule 4 of the Local Government Administration conduct of Election and Allied Matters (Amendment) Law 2004 which provides for 14 days is therefore inconsistent with the provision of Section 31 of the Electoral Act, 2006… I therefore hold that the election conducted on 15th December 2007 and which brought in the plaintiffs as chairmen of the eighteen Local Governments Councils in Ondo State on 15th December 2007 is illegal and unconstitutional as same was conducted in gross violation of the Constitution and the Electoral Act 2006.

…The counter claim of the defendants has therefore defeated and/or diminished the claim of the plaintiffs. In the circumstances the claim of the plaintiffs fails and same is hereby dismissed in its entirety.

The defendants having established their counter claim in part, the plaintiffs had no basis to have occupied their positions as Chairmen of their respective local government councils in the first place… The counter claim of the defendants succeeds in part and I hereby order as follows: –

1. The Plaintiffs were never legally and constitutionally elected as the Chairmen of the Local Government Councils in Ondo State.

2. The purported elections of the Plaintiffs as Chairmen of Local Government Councils in Ondo State are hereby declared null and void and of no effect whatsoever.

3. The Plaintiffs are hereby restrained from parading themselves as Chairmen of the Local Government Councils in Ondo State.

In the course of the judgment the learned trial Judge also held thus at page 364 of the record:

“I hold that the provision of Section 12 (4) (7) of the Local Government (Amendment) Law 2007 was not complied with before the 1st defendant purportedly dissolved the eighteen local governments in Ondo State on 4th March 2009.”

Both parties were dissatisfied with the judgment. The appellants herein were dissatisfied with the whole decision and filed a notice of appeal containing seven grounds of appeal. See pages 382 – 388 of the record. The respondents on the other hand were dissatisfied with the part of the decision to the effect that the dissolution of the eighteen local governments was not in accordance with Section 12 (4) (1) of the Local Government (Amendment) Law of Ondo State 2007. The 1st respondent’s notice of cross appeal is dated 10/9/09. The 2nd respondent’s notice of cross appeal is dated 16/9/09. Both notices contain one ground of appeal. The 2nd respondents notice of cross appeal can be found at pages 24 of the supplementary record of appeal.

All the parties filed and exchanged briefs of argument in respect of the main appeal and the cross appeals. In respect of the main appeal, the following processes were filed:

1. 2nd respondent’s notice of preliminary objection dated 14/01/2011 and filed on 17/1/2011.

2. Appellants’ Counter affidavit to preliminary objection dated 20/1/2011.

3. Appellant’s brief dated 28/4/2010 and filed on 30/4/2010.

4. 1st Respondent’s brief of argument dated and filed on 18/11/2010 (incorporating arguments on the preliminary objection).

5. 2nd Respondent’s Amended Brief of Argument dated 8/2/2011 and filed on 9/2/2011 (also incorporating argument in respect of his preliminary objection).

6. Appellant’s Reply brief to 1st Respondent’s brief dated 21/11/2010 and filed on 23/11/2010.

7. Appellant’s Reply brief to the 2nd Respondent’s amended brief of argument dated 21/4/2011 and filed on 29/4/2011 (in reaction to the 2nd respondent’s preliminary objection).

8. Appellants/Cross Respondents’ brief dated 22/11/2010 and filed on 23/11/2010.

9. 2nd respondent’s Reply on points of law to the Appellant’s response to the preliminary objection dated 20/9/2011 and filed on 23/9/2011 but deemed properly filed on 19/01/2011.

The processes filed in respect of the cross appeal will be identified and considered at the appropriate stage in the judgment.

At the hearing of the appeal on 19/1/12, Mr. EYITAYO JEGEDE, SAN, learned Attorney General and Commissioner for Justice, Ondo State (the 2nd respondent herein) moved the notice of preliminary objection dated 14/01/2011 and filed on 17/01/2011. He adopted and relied on the arguments in respect thereof incorporated in his brief of argument. He also adopted and relied on his reply on points of law, which was deemed properly filed and served on 19/1/12. He urged the court to follow the recent decision of this court in the case of Hon. Yinus Akintunde & Ors V. Olona Yinka & Ors. (2011) 5 WRN 112 and strike out the appeal.

In opposition to the preliminary objection, SHINA OLANIYAN ESQ., learned counsel for the appellants adopted and relied on the counter affidavit dated 17/1/2011 and filed on 18/1/2011 in addition to arguments contained in the Appellants/Cross Respondents’ brief dated 17/1/2011 and filed on 18/1/2011. He urged the court to dismiss the notice of preliminary objection for being a mere academic exercise. Referring to the case of Yinus Akintunde & Ors. V. Olona Yinka & Ors. (supra) he urged the court to decide this case on its own peculiar facts. Mr. J.O. BAIYESHEA, SAN, learned Senior Counsel for the 1st respondent aligned himself with the submissions of the Hon. Attorney-General. He cited an additional authority: Badejo V. Federal Minister of Education & Ors. (1996) 9 – 10 SCNJ 64 @ 66 – 68 and urged the court to allow the preliminary objection.

In respect of the main appeal, Mr. Olaniyan adopted and relied on all the briefs filed by the appellants referred to above and urged the court to allow the appeal. Mr. Baiyeshea, SAN also adopted and relied on his brief of argument and urged the court to dismiss the appeal. He supplied the citation of the decision of the Supreme Court upholding the decision of this court in Yinus Akintunde & Ors. V. Olona Yinka & Ors. (supra), which he had referred to in his brief as: O.S.I.E.C. V. A.C. (2010) 19 NWLR (1226) 273 @ 350 – 351.

The 2nd respondent, MR. EYITAYO JEGEDE, SAN, equally adopted and relied on the briefs filed in respect of the main appeal and urged the court to dismiss it. He submitted that all the issues raised by the appellants in this appeal were fully addressed by the Supreme Court in O.S.I.E.C. V. A.C. (supra).

As the 2nd respondent has raised a preliminary objection to the hearing of the appeal, it would be prudent to consider and determine it first, as its resolution will determine whether or not it is necessary to go into the merits of the substantive appeal.

In a nutshell the grounds of the preliminary objection are that the objective of the suit at the trial court and the Court of Appeal is to protect the tenure of office of the plaintiffs/appellants as Chairmen of respective Local Government Councils in Ondo State, which tenure commenced on 17th December 2007 and terminated on 16th December 2010 by virtue of the provisions of Section 27 (3) (a) & (b) of the Local Government Law 2007. Attached to the supporting affidavit is a letter marked Exhibit 1 written by learned senior counsel for the appellants addressed to the Deputy Chief Registrar of this Court requesting an early hearing date on the ground that “the tenure which the appellants seek to protect will expire on 17th December 2010.”

In the counter affidavit in opposition to the objection, it is contended that at the time the suit was instituted at the court below it raised substantial issues of law and that the delay in the hearing of the appeal was due to the failure of the 2nd respondent to file his brief on time. The 7th appellant who deposed to the counter affidavit denied that their tenure expired on 16/12/2010.

Arguing the preliminary objection, the Hon. A.G. submitted that the tenure of the appellants having expired on 16th December 2007 there was no pending lis and the court lacks jurisdiction to determine academic or moot questions. He submitted that the appeal would confer no benefit on the appellants. He referred to the reliefs sought by the appellants and submitted that as regards their tenure, the law is settled that tenure of office prescribed by statute cannot be extended outside the period prescribed even if the occupant was unlawfully removed from office before the expiration of his tenure. He relied on: Ladoja V. INEC (2007) 12 NWLR (1047) 119 @ 157 D, E & F; Yinus Akintunde & Ors. V. Olona Yinka & Ors. (supra). He urged the court to strike out the appeal.

In reaction to the preliminary objection, learned counsel for the appellants submitted that contrary to the 2nd respondent’s contention that the judgment of this court would be of no benefit to either of the parties, the appellants’ claim before the lower court includes a claim for declaratory relief as to the legality of the dissolution of the appellants’ councils. He submitted that a declaratory relief is never caught by lapse of time. He referred to: Chukwumah V. Shell Petroleum (1999) 4 NWLR (289) 512 @ 553; C.B.N. V. Amao (2010) 16 NWLR (1219) 271 @ 299. He submitted that even where the court cannot make an order of reinstatement the law allows the court to make declarations in the manner sought by the appellants, He submitted further, relying on the case of: Agbakoba V. INEC (2008) 18 NWLR (1119) 489 @ 546 – 547, that a suit does not necessarily become academic or hypothetical merely because it was heard after the act or conduct which gave rise to the action, He also cited: Odedo V. INEC (2008) 17 NWLR (1117) 554 @ 600. Referring to the case of Amaechi V. INEC (2008) 5 NWLR (1080) 227 @ 345, he submitted that the court has powers to make consequential orders even when not specifically requested for. He urged that where reinstatement is not possible the court should order the payment of all emoluments due to the appellants for the unexpired residue of their illegally truncated term of office.

He submitted that the case of Yunus Akintunde & Ors. V. Olona Yinka & Ors. (supra) is not on all fours with the instant case because in that case the appellants did not accept that their tenure of office had expired while the appellants herein concede that their tenure expired on 17/12/2010. He submitted in Akintunde’s case the appellants sought reinstatement on the basis of tenure elongation, which is quite different from what the appellants are seeking herein. He urged the court to discountenance the preliminary objection.

In reply on points of law, learned senior counsel for the 2nd respondent distinguished the authorities of Chukwumah V. Shell Petroleum (supra): Agbakoba V. INEC (supra); and Odedo V. INEC (supra) on the ground that the appeals in those cases, based on their peculiar facts, were of practical value, while in this case there would be nothing for the court to enforce in the event that the appeal succeeds. He referred to the submission of learned counsel for the appellants to the effect that the court could make an order for payment of the appellants’ emoluments in the event that reinstatement is impossible and submitted that this is a fresh/substantive relief and not a consequential relief. He submitted that a consequential relief must flow from the judgment and must be consequential to a relief already granted. He submitted that it cannot be used to grant an unclaimed relief. He relied on: Akinbobola V. Plisson Fisko (1991) 1 NWLR (167) 270 @ 288 B – C; A.G. Federation V. AIC Ltd. (2000) 10 NWLR (675) 293 @ 306. Learned senior counsel submitted that the appellants cannot take refuge under Amaechi’s case (supra) to seek a substantive relief which they never claimed at the court below. He urged the court to strike out the appeal.

The appellants’ suit before the lower court was commenced by way of originating summons wherein they raised certain questions. In the event that the questions were answered in the negative they proceeded to seek certain consequential reliefs, which included declaratory reliefs. They have been fully set out earlier in this judgment. It is the respondents’ contention that the reliefs sought have become extinguished by effluxion of time and thus it would be a mere academic exercise for this court to entertain this appeal.

a. A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law;

b. The claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to relief in the fullest meaning of the word;

c. A declaration will only be granted where there is a breach;

d. The plaintiff must establish a right in relation to which the declaration can be made; hence the court will not generally decide hypothetical questions;

e. The relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant;

f. The relief should also not be contrary to the acceptable principles upon which the court exercises jurisdiction.

The case of Chukwumah V. Shell Petroleum (1993) 4 NWLR (289) 512 @ 553 was cited with approval.

Applying the above principles to the case at hand, there is no doubt, as submitted by learned counsel for the appellants that at the time the action was brought before the trial court it raised a substantial issue of law i.e., whether the 1st respondent acted within the confines of Section 7 of the 1999 Constitution and Section 12 (4) of the Local Government (Amendment) Law 2007 when he dissolved the 18 Local Governments of which the appellants were chairmen. In the event that the court answered the two questions raised in the negative, the appellants sought a declaration that the said act was unconstitutional, null and void and of no effect. In the further event that the court found them to be entitled to the said declaration, they sought certain consequential reliefs, including the setting aside the said act. At the time the suit was instituted before the lower court, all the consequential reliefs sought were live issues and capable of being granted at the court’s discretion. The appellants had also shown their right to the reliefs sought, being the chairmen of the affected Local Government Councils. The judgment appealed against was delivered on 24/6/09 and the appellants filed their notice of appeal on 25/7/09. The parties concede that the appellants’ tenure of office expired on 17th December 2010. Thus, at the time the appeal was filed the appellants’ tenure was still subsisting. It is not their fault that the appeal could not be heard and determined before their tenure expired.

However, as of today some of the reliefs, such as reliefs 5, 6 and 7 have been overtaken by events. From the affidavit evidence before the court it is evident that not only had the 18 Local Governments been dissolved, the appellants had been ordered to surrender all government properties in their possession and their salaries and emoluments stopped.

By Section 27 (3) (a) & (b) of the Local Government Law 2007, the appellants’ tenure is for a period of three years from the date they took their oath of office. Both parties are ad idem that the appellants’ term of office expired on 17/12/2010. It has been settled in the case of Ladoja V. INEC (supra) that where the tenure of office is fixed by statute the court cannot extend it.

It is also well settled that an injunction is not a remedy for a completed act. Thus reliefs 5, 6 and 7 are no longer live issues, which could be determined in this appeal.

On the other hand the fact that the appellants’ tenure of office has expired would not preclude the court from determining whether the act of the 1st respondent was proper in the circumstances of this case. In further support of this position is the fact that the respondents have filed cross appeals challenging the aspect of the judgment wherein it was held that the dissolution of the 18 Local Government Councils was in breach of the applicable law. The resolution of this issue is therefore a five issue in this appeal. With due respect to the 2nd respondent, I am unable to agree with learned senior counsel that an answer to the questions raised and the declaration sought would amount to a mere academic exercise. Indeed, contrary to the position taken by him, the cases of Agbakoba V. INEC & Ors. (supra) and Odedo V. INEC (supra) support the view that non-compliance with the law is a relevant and live issue even where the act had already taken place. The preliminary objection therefore succeeds in part. I hold that the two questions raised in the originating summons, and reliefs 3 and 4 therein are live issues which can legitimately be determined by this court.

I shall now proceed to consider the main appeal, The parties in their respective briefs of argument formulated the following issues for determination:

Appellants:

1. Whether the court below was right in law in declaring Section 7 of Schedule 4 of the Local Government Administration conduct of Election and Allied Matters (Amendment) Law 2004 of Ondo State unconstitutional and inconsistent with Section 37 of the Electoral Act 2006 following the decision in ACTION CONGRESS V. OSUN STATE INDEPENDENT ELECTORAL COMMISSION [now reported in (2009) 12 NWLR (1155) 223]. (Grounds 3 and 5).

2. Whether the court below was right in law in assuming jurisdiction to entertain the Defendants/Respondents’ counter claim and in any case whether the counter claim was competent, (Grounds 1, 2, 4 and 6),

3. Whether the lower court was right in setting aside the Local Government Election held on 15th December, 2007 on the ground that Section 1 Schedule 4 of the Local Government (Amendment Law) 2004 which was relied upon in giving notice of election was unconstitutional. (Ground 7)

1st Respondent:

1. Whether the trial court was right in holding that the counter-claim in this case was proper and that the trial court had jurisdiction to entertain the said counter-claim. Grounds 1, 2, 4 and 6.

2. Whether the trial court rightly set aside the purported election of the appellants as chairmen of Local Governments in Ondo State. Grounds 3, 5 and 7.

2ND RESPONDENT:

1. Whether the court below was right in its conclusion that the counter claim of the Respondents was competent and within the court’s jurisdiction, Grounds 1, 2, 4 and 6.

2. Whether the lower court was right in following the decision of the Court of Appeal (Ibadan Division) in the case of Action Congress us, Osun State Electoral Commission (now reported in (2009) 12 NWLR (1155) 223) in holding that it is the Electoral Act 2006 that is applicable in respect of the requirements of appropriate notice before election into the Local Government Council can be conducted, and that the appellants were therefore not constitutionally and legally elected as chairmen of their respective Local Governments in Ondo State, Grounds 3, 5 and 7.”

OR PUT IN ANOTHER WAY:

Whether the lower court was not right in setting aside the Local Government election held on 15/12/07 on the ground that Section 1 Schedule 4 of the Local Government (Amendment Law) 2004 which was relied upon in giving notice of election was unconstitutional. Grounds 3, 5 and 7.”

Having given careful consideration to the issues formulated by the parties, I am of the view that the issues formulated by the appellants would adequately dispose of the issues in contention in this appeal. Furthermore, having regard to the fact that the learned trial Judge dismissed the appellants’ claims and granted the respondents’ counter claim in part, I am of the considered view that the appellants’ issue 2 should be considered first. Issue 2 thus becomes issue 1 while issue 1 becomes issue 2.

Issue 1

Whether the court below was right in law in assuming jurisdiction to entertain the Defendants/Respondents’ counter claim and in any case whether the counter claim was competent.

Learned counsel for the appellants submitted that a counter claim though related to the main action is a separate and distinct action, and must therefore have its own supportive processes separate from the processes filed in support of the main claim. He reasoned that in the event of the dismissal or withdrawal of the main claim the counter claim would subsist. He cited several authorities including Adeniyi V. Oroja (2006) ALL FWLR (324) 1834 @ 1860 and Dala Air Services Ltd. V. Sudan Airways Ltd. (2004) ALL FWLR (238) 684 @ 699. Learned counsel reproduced the findings of the lower court from pages 365 – 368 of the record on the competence of the counter claim as well as the provisions of Order 38 Rule 8 (2) of the High Court (Civil Procedure) Rules of Ondo State (1988) (hereinafter referred to as the Civil Procedure Rules), which provides as follows:

“A defendant who wishes to make a counterclaim under this rule shall at the first or any resumed hearing of the originating summons by the court, but in any case, at as early a stage in the proceeding as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the court under paragraph (3), the claim shall be made in such manner as the Court may direct.”

He submitted that no information as to the nature of the counter claim was given to the court below and as such the court was not in a position to give the directions enjoined by the above Order, which provisions he argued are mandatory. He argued that since the respondents by their counter claim were seeking declaratory reliefs, which could not be granted in the absence of evidence, they ought to have filed affidavits in support thereof. He argued that the lower court failed to appreciate the distinct and separate nature of a counter claim when it considered the averments in the respondents counter affidavits as evidence in support of their declaratory reliefs. He was of the view that had the originating summons been withdrawn the counter claim would not have had a leg to stand on.

In reaction to the above submissions, learned senior counsel for the 1st respondent submitted that the respondents gave notice of their intention to rely on the counter affidavit filed against the originating summons in support of their counter claim at the earliest opportunity by incorporating the notice in the counter claim filed on 16/3/09, the same day the counter affidavit was filed. He submitted that in the peculiar circumstances of this case, the notice was proper. He contended that there were sufficient materials before the court as contained in the counter affidavit and further counter affidavit of the respondents to ground the counter claim and that the court was right to make use of those facts in determining same. He relied on: NNPC V. Ibi (2009) ALL FWLR (455) 1870 @ 1887 D; Altimate Inv. Ltd. V. Castle & Cubicles Ltd. (2008) All FWLR (417) 124 @ 145 – 146 H – A.

Learned counsel submitted that the case of Adeniyi V. Oroja (supra) relied on by learned counsel for the appellants in support of his contention that a counter claim is a separate action in fact supports the 1st respondent’s case to the extent that what is important is that there are facts to support the claim. He submitted that the case also supports the contention that the withdrawal of the plaintiff’s claim does not affect the counter claim, which could be pursued to its logical conclusion.

Learned senior counsel submitted further that the appellants having filed a further and better affidavit against the further counter affidavit in support of the counter claim the appellants could not be heard to complain that there was no affidavit in support of the counter claim. He submitted without conceding that in the event that the procedure adopted by the respondents was wrong, the onus was on the appellants to show that the error had occasioned a miscarriage of justice. He argued that in the instant case the appellants were not misled. They fully understood the case against them and defended it though unsuccessfully.

On the alleged non-compliance with Order 38 Rule 8 (2) of the Civil Procedure Rules, learned counsel submitted that after noticing the irregularity the appellants were obliged to take their objection timeously before taking any further step in the proceedings. He observed that from 27/3/09 when the 1st respondent filed the Notice of Counter claim to 12/6/09 when the originating summons and counter claim were heard was a period of about three months. He submitted that the learned trial Judge was correct when he held that the plaintiffs’ objection was taken too late in the day, having joined issue with the respondents thereon. In support of the proposition that a breach of a rule of practice would only render a proceeding an irregularity and not a nullity he referred to: Saude V. Abdullahi (1989) 3 NSCC 177 @ 178; Kalu V. Odili (1992) 6 SCNJ 76 @ 102. He urged the court to resolve this issue against the appellants.

In considering the submissions of the learned 2nd respondent, I shall only review the submissions that raise new issues outside those argued on behalf of the 1st respondent.

On compliance with Order 38 Rule 8 (2), learned senior counsel submitted that the provision could be divided into two limbs. He contended that the second limb, starting from “but in any case at as early a stage in the proceedings as is practicable…” had completely whittled down the seemingly mandatory provision contained in the opening words of the paragraph. He submitted that the word “shall” appearing at the beginning of the provision is subject to the later provision referred to above. He also drew attention to the words “as soon as practicable” and submitted that the phrase adds a new dimension to the effect that the notice can be given at any time or when it is convenient. He submitted finally on this issue that the words “as the court may direct” in the last line of the provision are discretionary and show that there is no mandatory obligation on the part of the court to direct any format for the presentation of a counter claim.

In support of the contention that the appellants had waived their right to complain having joined issues with the respondents on their counter claim by taking steps and filing processes in reaction thereto, learned senior counsel relied on the case of Ariori V. Elemo (1983) ALL NLR 1 @ 2; Agagu V. Mimiko (2009) 7 NWLR (1140) 342 @ 389 H; 390 D – H; 391 G & H; INEC V. Action Congress (2009) 2 NWLR (1126) 524.

With regard to the submission that there are no supporting processes in respect of the counter claim, learned senior counsel referred to Order 1 Rule 1 of the Civil Procedure Rules, which provides for the mode of commencement of civil proceedings, one of which is by originating summons. He observed that by the rules of court evidence could be led by affidavit, which is what the respondents have done in this case. He noted further that by Order 38 Rule 4 the court has the discretion to determine the form of evidence required to support a relief.

He submitted that an appellate court could only interfere with the exercise of discretion by a trial Judge where such exercise occasions a miscarriage of justice. He referred to: Abdullahi V. Katsina State Housing Authorities (2000) FWLR (15) 2512 @ 2516; Alli V. Alesinloye (2000) FWLR (15) 2610 @ 2616; Cornelius V. Ezenwa (2002) 101 LRCN 1912 2 1913. He submitted that not having established any miscarriage of justice the appellants’ complaint amounts to reliance on technicalities as against substantial justice. He urged the court not be so swayed.

The procedure for originating summons proceedings is set out in Order 38 of the Civil Procedure Rules. Although learned counsel for all the parties has concentrated on Rule 8 (2) of Order 38, it is my considered view that the entire Rule 8 ought to be considered in order to put the matter in perspective. Order 38 Rule 8 provides thus:

8. (1) A defendant to an action begun by originating summons who has entered an appearance to the summons and who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter (whenever and however arising) may make a counter claim in the action in respect of that matter instead of bringing a separate action.

(2) A defendant who wishes to make a counterclaim under this rule shall at the first or any resumed hearing of the originating summons by the court, but in any case, at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the court under paragraph (3), the claim shall be made in such manner as the Court may direct.

(3) If it appears on the application of the plaintiff against whom a counter claim is made under this rule that the subject matter of the counter claim ought for any reason to be disposed of by a separate action, the Court may order the counter claim to be struck out or may order it to be tried separately or make such other order as may be expedient.” (Emphasis mine)

From Rule 8 (1) reproduced above, it is clear that the Rules recognize the right of a defendant in originating summons proceedings to file a counter claim within those proceedings. Rule 8 (2) makes it mandatory for a defendant wishing to make a counter claim to inform the court of the nature of his claim “at the first or any resumed hearing of the summons but in any case, at as early a stage in the proceedings as is practicable”. Despite the use of the word “shall” at the commencement of the rule, I agree with learned senior counsel, the 2nd respondent that its effect is whittled down by the fact that the counter claimant may inform the court of the nature of his counter claim at any of three stages of the proceedings: at the first sitting, at any resumed sitting or at as early a stage in the proceedings as is practicable. Once he has complied with this aspect of the Rule, subject to the provisions of sub-rule (3), he shall make his claim in such manner as the court may direct.

The originating summons was filed on 10/3/09. A memorandum of appearance was filed on 16/3/09 on behalf of the 1st Respondent. On the same date a counter affidavit in opposition to the affidavit in support of the originating summons was filed on behalf of both respondents. The respondents also filed a counter claim on the same date. At the head of the counter claim is the following notice:

“Take Notice that the defendants in this case on the footing of the counter affidavit against the affidavit in support of the originating summons, counter claim as follows: …”

From the record, the first proceedings in respect of the originating summons took place on 12/6/09. It can safely be said that by the notice and counter claim filed on 16/3/09, the counter claimants had fully complied with Order 38 Rule 8 (2) by informing the court of the nature of their counter claim even before the first sitting of the court. The next step was to be taken by the applicants or the learned trial Judge. In other words, under Rule 8 (3) the applicants, upon being served with the counter claim, were entitled, if they deemed it necessary to file an application requesting that the counter claim be heard as a separate action. No such application was filed. In the absence of such an application, the learned trial Judge by Rule 8 (2) had the power to direct the manner in which the counter claim should be made. The learned trial Judge did not give any directions to that effect. At this stage, the respondents had done all that was required of them under Order 38 Rule 8 (2) to make a counter claim against the reliefs sought in the originating summons.

Learned counsel for all the parties agree that a counter claim is a separate and distinct action from the main claim. Numerous decisions of our superior courts of record establish this fact. See: Adeniyi V. Oroja (2006) ALL FWLR (324) 1834 @ 1860 and Dala Air Services Ltd. V. Sudan Airways Ltd. (2004) ALL FWLR (238) 684 @ 699. The issue in contention is whether the respondents ought to have filed separate affidavits in support of their counter claim. In the case of Adeniyi V. Oroja (supra), reliance was placed on the decision in the case of: Okonkwo V. C.C.B, (2003) FWLR (154) 457 @ 508 where it was held that “a counter claim is a cross action with its separate pleadings, judgment and costs.” The case of Hassan V. Regd. Trustees Baptist Convent (1993) 7 NWLR (308) 679 @ 690 was cited with approval. My understanding of these decisions is that where a defendant files a counter claim, there must be pleadings upon which his case is founded, as it is those pleadings and the evidence led in respect thereof that the court would consider in determining the merit or otherwise of his counter claim. Being a separate claim, if there are no pleadings to support it, it would certainly fail. It is often the case that the facts relied upon by the defendant in defence of the main action are the same facts being relied upon in support of the counter claim. In such circumstances, as long as the counter claimant sufficiently indicates an intention to rely on the same pleadings in support of his counter claim, those pleadings would satisfy the requirement of pleadings in support of the counter claim. In the event that the main claim fails, the court would not be precluded from considering the pleadings in the statement of defence (or counter affidavit in the case of a suit begun by originating summons) in determining the counter claim.

The respondents indicated clearly that their counter claim was based on the counter affidavit against the affidavit in support of the originating summons. The learned trial Judge not having exercised his powers under Order 38 Rule 8 (2) by directing the form the counter claim should take, I hold that the counter claim as filed was competent.

As observed by learned counsel for both respondents, they filed a further counter affidavit dated 27/3/09 against the appellants’ supporting affidavit at pages 159 – 160 of the record, In paragraph 11 thereof it was averred that “… it is in the interest of justice to refuse/dismiss the reliefs and grant instead the reliefs in the counter claim”, thereby tying the said further counter affidavit to the counter claim. The appellants responded to the further counter affidavit by filing a further and better affidavit dated 1/16/09 (See pages 240 – 243 of Vol. II of the record). Thus the appellants fully joined issues with the respondents on their counter claim.

Assuming, without conceding, that the procedure adopted by the respondents was improper, I am inclined to agree with the learned trial Judge that having failed to comply with Order 2 Rule 2 (1) of the Civil Procedure Rules, which requires an application to set aside a proceeding for irregularity or non-compliance with the rules to be made timeously before the party complaining has taken any fresh step after becoming aware of the irregularity, it was too late in the day for the appellants to complain having filed processes and joined issues with the respondents on the counter claim. They were not misled in any way as to the nature of the counter claim or the facts relied upon to support it. Furthermore, by Order 2 Rule 1 (1) failure to comply with the rules whether in respect of time, place, manner, form or content or in any other respect, may be treated as an irregularity and if so treated will not nullify the proceedings, or any document, judgment or order therein. See: C.B.N. V. Amao (2010) 16 NWLR (1219) 271 @ 292 – 293 A – F. In the instant case, I am of the view and I do hold that the counter claim filed by the respondents was competent and the lower court had jurisdiction to entertain it. This issue is accordingly resolved against the appellants and in favour of the respondents.

Issue 2

Whether the court below was right in law in declaring Section 7 of Schedule 4 of the Local Government Administration conduct of Election and Allied Matters (Amendment) Law 2004 of Ondo State unconstitutional and inconsistent with Section 37 of the Electoral Act 2006 following the decision in ACTION CONGRESS V. OSUN STATE INDEPENDENT ELECTORAL COMMISSION (now reported in (2009) 12 NWLR (1155) 223; (2009) ALL FWLR (474) 1490).

In arguing this issue, learned senior counsel for the appellants set out the following provisions: Section 7 and items 11 and 12 of Part II of the Second Schedule to the 1999 Constitution; Sections 31 and 121 of the Electoral Act 2006; and Section 1 of Schedule 4 of the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law, 2004. He referred to the rules guiding the interpretation of the Constitution as enunciated in a plethora of cases including Bronik Motors Ltd. V. Wema Bank Ltd. (1993) 1 SCNLR 295; Nafiu Rabiu V. The State (1979 – 1981) 12 NSCC 291 @ 300 – 302; PDP V. INEC (1999) 11 NWLR (626) 200 @ 276 – 278 F – C; Ogbunyiya & Ors. V. Obi Okudo & Ors. (1979) 6 – 9 SC 24 to the effect that where the language of the Constitution is clear and unambiguous the provisions must be given their plain and ordinary meaning unless it would lead to absurdity, repugnancy or inconsistency with the rest of the instrument.

Learned senior counsel submitted that the learned trial Judge relied on the decision of the Ibadan Division of this court in Action Congress V. O.S.I.E.C. (2009) 12 NWLR (1255) 223 in reaching the conclusion that Section 1 of Schedule 4 of the Ondo State Local Government Law is inconsistent with the provisions of Section 31 of the Electoral Act 2006. He submitted that Section 31 of the Electoral Act prescribes the maximum number of days for notice of an election to be given while the Ondo State Law prescribes the minimum and contended that there is no inconsistency between the two provisions. He argued further that Section 31 of the Electoral Act is exempted from Section 121 thereof and is inapplicable to Local Government elections in the States. He referred to “Commission” defined in Section 164 of the Act to mean the Independent National Electoral Commission established by the Constitution, which is borne out by Section 153 (1) (f) of the Constitution. He noted that on the other hand the same Section 164 defines “State Commission” to mean State Independent Electoral Commission. He submitted that the word “Commission” in Section 31 of the Act would have been expressly made to include State Electoral Commission if that were the intendment of the lawmakers. He was of the view that the lawmakers intended Section 31 to be applicable to National Elections only and contended that to hold otherwise would render the powers conferred on the State Houses of Assembly by Section 7 (4) and paragraph 12 of the Second Schedule to the Constitution otiose.

Learned senior counsel submitted further that the power of the National Assembly to make laws with respect to the “procedure regulating elections to a local government council” conferred by paragraph 11 of Part II of the Second Schedule does not envisage the time for giving notice of such election as a procedural issue.

Learned senior counsel referred to Section 4 (4) of the 1999 Constitution, which confers on the National Assembly the power to make laws for the Federation in respect of matters contained in the concurrent legislative list. He also referred to items 11 and 12 of the Concurrent Legislative List and sections 121 and 122 of the Electoral Act. He noted that the learned trial Judge relied on Section 121 of the Act in holding that Section 31 applies to the conduct of Local Government elections. He argued that although Section 121 of the Act contains a general provision that the procedure for filing nominations and casting votes for Local Government Council elections shall be the same as is applicable for other elections under the Act, Section 122 (1), (2) and (3) of the same Act makes specific provisions for the procedure for nominations into Local Government Councils. He submitted that it is a well-settled principle of interpretation that specific things derogate from general while general things do not derogate from specific things. He quoted copiously from the various dicta of the Honourable Justices of the Supreme Court in the case of Schroeder V. Major & Co. (Nig.) Ltd. (1982) 2 NWLR (101) 1, Using the marginal notes to Section 122 as a guide, he contended that the section deals specifically with procedure for nomination in Local Government elections while Section 31 of the Act deals with notice of election. He argued that a literal interpretation of Section 31 of the Act would lead to an absurdity as it relates to Local Government elections because it would mean that notice of a local government election must be published in each State of the Federation and Federal Capital Territory. He submitted that a literal interpretation of the section admits of no modification, alteration or qualification and that the learned trial Judge had a duty to apply the entire provisions of section 31 and not just the 150 days requirement without applying the other part requiring publication of the notice in each State of the Federation and Federal Capital Territory.

Learned senior counsel also submitted that there is a distinction in law between the publication of notice of election and procedure for filing nomination. He referred to: Inakoju V. Adeleke (2007) 4 NWLR (1025) 424 @ 596 and submitted that the procedure for filing nominations in local government council elections is well set out in Section 122 (1) – (3) of the Electoral Act, He maintained that Section 31 of the Act has nothing to do with the procedure referred to in Section 122. He submitted that in so far as paragraph 12 of the Concurrent Legislative List empowers a State House of Assembly to make laws with respect to elections into local government councils, the relevant law regarding notice of elections is the Local Government Electoral Law of Ondo State 2004. He urged the court to resolve this issue in the appellants’ favour.

In the 1st respondent’s reply brief, learned senior counsel raised a preliminary issue by contending that the appellants have raised new issues not canvassed at the court below such as the principles of interpretation of the 1999 Constitution and the applicability of Section 31 of the Electoral Act to Local Government elections. Relying on the decisions of the Supreme Court in Akuneziri V. Okenwa (2000) 12 SCNJ 242 @ 267 and Kwajaffa V. B.O.N. Ltd. (2004) 5 SCNJ 121 @ 136 – 137 he submitted that the appellants are not permitted to put up a different case on appeal without leave of court.

He argued that the appellants having averred in paragraph 3 (c) of their response to the further counter affidavit that the Local Government election of 15/12/06 was held in accordance with the provisions of the Constitution and the Electoral Act cannot be allowed to urge at this stage that the Electoral Act is inapplicable for the conduct of the said election. He referred to the review of the facts and the findings of the learned trial Judge at pages 372 – 376 of the record and submitted that His Lordship captured the whole essence of the case. He submitted that the facts of this case are very similar to the facts of Action Congress V. O.S.I.E.C. (supra) relied upon by the learned trial Judge regarding the length of notice to be given by the electoral body for holding local government elections. He submitted that under the doctrine of stare decisis the learned trial Judge was bound to follow the decision. He submitted that the new issues raised by the appellants contending that the learned trial Judge failed to interpret the provisions of the Constitution correctly go to no issue. He submitted that the judgment in Action Congress V. O.S.I.E.C. (supra) remains the law until the Supreme Court decides otherwise. He argued further that the appellants have not followed the procedure for calling on this court to overrule its own decision.

He submitted that the distinction learned counsel for the appellants sought to make between the procedure for nomination and notice of election is a distinction without a difference. He submitted that the procedure regulating elections to Local Government Councils includes the giving of appropriate notice for taking steps towards the conduct of a valid election. He contended that the authorities cited by the appellants tending to show that the Local Government Law of Ondo State and not the Electoral Act 2006 is the applicable law are inapplicable to this case. He fortified this submission by reference to the case of: A.G. Abia State V. A.G. Federation (2002) FWLR (101) 1419 @ 1494 B – E.

In reaction to this issue, learned senior counsel, the 2nd respondent submitted that the parties were ad idem that items 11 and 12 of Part II of the Second Schedule to the Constitution confer powers on both the National Assembly and State Houses of Assembly to make laws for the purpose of conducting an election into Local Government councils provided that the laws made by the State Houses of Assembly are not inconsistent with any law made by the National Assembly. He noted further that Section 31 of the Electoral Act is a Federal enactment while section 1 of Schedule 4 of the Local Government Law is a state enactment. He submitted that where there is a conflict between a Federal Law and a State Law on a subject where both the Federal Government and State Government have power to legislate, the conflict shall be resolved in favour of the Federal Law and the State Law shall, to the extent of its inconsistency with the Federal Law be void. Learned senior counsel contended that the issue before the trial court was whether there was compliance with the number of days required as notice before the conduct of Local Government elections. He noted that Section 31 of the Electoral Act provides for 150 days while section 1 (1) of the Local Government Law of Ondo State 2004 provides for 14 days. He submitted that from the evidence before the court it was glaring that there was non-compliance with both Section 31 of the Act and Section 1 (1) of the Local Government Law. He noted that Exhibit A dated 6/12/07 gave only nine days notice in respect of the election conducted on 15/12/06.

Relying on the authorities of F.R.N. V. George Osahon & Ors. (2006) 5 NWLR (973) 361 @ 380 and Adeleke V. O.S.H.A. (2006) 16 NWLR (1006) 608 @ 645 ratio 5 to the effect that clear provisions of a statute should be given their literal meaning he maintained that the learned trial Judge was right in his construction of Section 31 (1) of the Electoral Act and Section 1 (1) of the Local Government Law, as there was no ambiguity in the wordings of the statutes on the issue of notice. With regard to the contention of the appellants that the learned trial Judge only interpreted and applied part of Section 31 of the Act in order to avoid absurdity, learned senior counsel argued that the court’s interpretation did not raise any ambiguity and further that where there is a lacuna in a statute it is not the duty of the court to fill it, as the duty of the court is to interpret the law and not to make laws. He cited several authorities in support, including Udoh & Ors. V. O.H.M.B. & Anor, (1990) 4 NWLR (147) 52 @ 68. He urged the court to hold that the appellants were not properly elected as chairmen of their respective local governments and that in any event their tenure as chairmen stands determined on 16/12/2010 by effluxion of time.

In reply to the submissions on behalf of the 1st respondent, learned senior counsel for the appellants submitted that the preliminary point raised is not in accordance with Order 10 Rule 1 of the Court of Appeal Rules 2007 and therefore goes to no issue. With regard to the contention that the appellants raised new issues concerning the interpretation of Constitutional provisions, learned counsel submitted that the interpretation and construction of the Constitution, the Electoral Act and the Local Government Law of Ondo State were issues before the lower court. While conceding that fresh issues cannot be raised on appeal without leave, he submitted that a new line of argument or new judicial or statutory authorities to support an issue that is properly before the court is permitted. He relied on: Kwajaffa V. B.O.N. Ltd. (supra) and Ali V. Osakwe (2009) 14 NWLR (1160) 75 @ 140. He submitted that the case of Action Congress V. O.S.I.E.C. (supra) is not on all fours with this case, as in that case the State Electoral Commission contended that the number of days notice given was in substantial compliance with the Electoral Act, while in this case the appellants contend that the Electoral Act is inapplicable.

Before resolving this issue, it would be prudent to examine the record of appeal to determine the basis on which the case was fought at the court below. This is because an appeal is a complaint against the ratio decidendi of the decision appealed against. This court in: Miniibir & Anor. V. Minjibir & Ors. (2008) LPELR (Law Pavilion Electronic Law Report) EP-CA/K/EP/NA/20/07 held thus:

“It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus, any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an appellant’s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes.” (Emphasis mine)

It follows that any arguments in support of issues formulated for determination must be based on the ratio of the decision appealed against.As rightly observed by learned counsel for the appellants, if the 1st respondent intends to raise a preliminary objection to any aspect of the appeal he must comply with the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011. In the instant case no formal notice of preliminary objection was filed. It is permissible to raise and argue a preliminary objection in the respondent’s brief. Where this procedure is adopted the respondent must seek leave of court at the hearing of the appeal to move the objection. Where he fails to do so the objection is deemed abandoned, See: Ali v. Albishir (2008) 3 NWLR (Pt. 1073) 94 @ 137 B – E. In the instant case, learned senior counsel for the 1st respondent made submissions on what he described as a preliminary point, He did not raise the preliminary point at the hearing of the appeal. It is deemed abandoned.

Having made the above observation however, it is also trite that with or without an objection by any of the parties the court will not consider on appeal any issue that was not raised at the court below unless leave to do so has been sought and obtained. The reason for this is that the lower court would not have had an opportunity to consider submissions on the issue and reach a decision one way or the other. There would therefore be no decision on the point for the appellate court to review.

In paragraphs 2 and 3 of the counter claim the respondents sought the following:

3. A DECLARATION that the purported elections of the Plaintiffs as Chairmen of Local Government Councils in Ondo State are null and void and of no effect whatsoever.

In paragraphs 5, 6 and 7 of the further counter affidavit dated 27/3/09 it was averred as follows:

“5. That contrary to the said depositions of the deponent in the said affidavit, the purported local government election of 15th December 2007 was held in violation of the Constitution of the Federal Republic of Nigeria, the Electoral Act 2006 and other relevant laws.

6. That the purported election did not provide level playing grounds for all stake holders. In that the election was rushed and hastily done. The ODIEC only gave nine days notice from & December to 19 December 2007 instead of one hundred and fifty days prescribed by the Electoral Act 2006.

7. That certified true copy of the purported notice issued for the said election is attached herewith as Exhibit A.” (Underlining mine for emphasis).

In reply to these averments the appellants averred in paragraphs 3 (e) – (k) of their further and better affidavit dated 1/6/09 thus:

3. (e) That contrary to paragraph 5 of the said Further Counter Affidavit, the Local Government Election conducted on the 15th of December 2007 was held in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, the Electoral Act 2006 and other relevant laws.

(f) That contrary to paragraph 6 of the said Further Counter Affidavit, the Local Government Election conducted on the 15th December 2007 provided a level playing ground for all the stakeholders and was therefore not hastily done.

(g) That Ondo State Independent Electoral Commission (ODIEC) saddled with the responsibility of conducting Local Government Elections issued a Notice of meeting to all political parties inviting their representatives to a meeting that was slated for Monday 24th September 2007.

(h) That Notice of Meeting was dated 17 September 2007 and duly signed by one Alhaji Jimoh Aiyemowa, the Administrative Secretary to ODIEC.

(i) That the said Notice of Meeting addressed to the Chairmen of all political parties in Ondo State had the time table for the conduct of the Local Government Election scheduled for 15th December 2007 attached to it as an enclosure.

(j) That a copy of the Notice of meeting addressed to the Chairman of Labour Party at Akure dated 17th September 2007 together with a document titled “Time Table for the conduct of Local Government Election scheduled for Saturday 15th December 2007” is herewith attached as Exhibit LG02 and same was pleaded in Suit No. AK/183/2007 pending before this Honourable Court.

(k) That contrary to paragraph 7 of the defendants’ Further Counter Affidavit, the purported “Notice and Time Table” attached and exhibited by the defendants as Exhibit A and A; are merely the speech of the Chairman of ODIEC re-iterating the date of election earlier communicated to all political parties far away in September 2007.”

Section 31 of the Electoral Act provides:

“31. (1) The Commission shall not later than 150 days before the day appointed for holding of an election under this Act publish a notice in each state of the Federation and the Federal Capital Territory:

(a) Stating the date of the election; and

(b) Appointing the place at which nomination papers are to be delivered.

(2) The notice shall be published in each constituency in respect of which an election is to be held.”

There can be no doubt that the 150 days referred to in paragraph 6 of the further counter affidavit is the 150 days notice provided for in Section 31 of the Electoral Act. The averments in the further and better affidavit clearly seek to show that there was due compliance with the said provision.

I have also carefully examined the submissions of the respective learned counsel at pages 327 – 342 of Vol. II of the record of proceedings. There is nowhere in the entire submission of Otunba Kalejaiye, SAN that the issue of the non-applicability of Section 31 of the Electoral Act to Local Government Elections was raised. In determining the counter claim, the learned trial Judge considered Section 7 of the 1999 Constitution, Items 11 and 12 of Part II of the Second Schedule to the Constitution, Sections 31 and 121 of the Electoral Act 2006 and Section 1 of Schedule 4 of the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law 2004. He also considered, inter alia, the averments in the further counter affidavit and further and better affidavit reproduced above. At the end of the exercise he concluded at pages 375 – 376 as follows:

“Section 1 of Schedule 4 of the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law 2004, which provides for 14 days is therefore inconsistent with the provisions of Section 31 of the Electoral Act 2006…. I therefore hold that the election conducted on 15th December 2007 and which brought in the Plaintiffs as Chairmen of the eighteen Local Government Councils in Ondo State on 15th December 2007 is illegal and unconstitutional as same was concluded in gross violation of the Constitution and the Electoral Ad 2006.

The contention that Section 31 of the Electoral Act is inapplicable to Local Government Elections was never an issue before the lower court. The argument proffered in respect thereof before this court raises a fresh issue for which no leave has been sought or obtained. The argument in that regard therefore goes to no issue. In the event that I am wrong in this regard, the issue has been settled by the Supreme Court in O.S.I.E.C. V. A.C. (2010) 19 NWLR (1226) 273 @ 320 A – D & 334 C – D where it was held that the timing and length of notice of an election forms part of the procedure relating to the conduct of the election. The apex court held that the argument that the giving of notice is not part of the procedure regulating election into Local Government Councils in Nigeria and that Section 31 of the Electoral Act 2006 is inapplicable to Local Government Elections was untenable.

On the other hand, I agree with learned counsel for the appellants that in considering any of the provisions of the Constitution or other relevant laws, the court has a duty to apply the appropriate canons of interpretation as settled by various authorities.

Was the lower court right to have applied the decision in Action Congress V. OSIEC (supra) in declaring Section 1 of Schedule 4 of the Local Government Law inconsistent with Section 31 of the Electoral Act?

In addition to Section 31 of the Electoral Act reproduced above, I shall set out the other Constitutional and legislative provisions considered by the Court below.

Section 7 (1) and (4) of the 1999 Constitution:

(1) “The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.

(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to a House of Assembly shall have the right to vote or be voted for at an Election to a Local Government Council.”

Items 11 and 12 of Part II of the Second Schedule to the Constitution:

“11. The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a Local Government Council.

12. Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the National Assembly.” (Emphasis supplied)

Section 121 of the Electoral Act:

“The procedure for filing nominations and the casting and counting of votes for Local Government Council Elections shall be the same as is applicable to other elections under this Act.”

Section 1 of Schedule 4 of the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law 2004:

“1(1) Not less than 14 days before the date specified for holding of an election under this Law the Commission shall, through the Secretary publish a notice:

(a) Stating the date of the election; and

(b) Appointing the place at which nomination papers are to be delivered.

2. The notice shall be further published in each constituency in respect of which an election is to be held.

The legislative powers of the National Assembly to make laws relating to local governments vis a vis the powers of the State Houses of Assembly were considered extensively in the case of: A.G. Abia State & Ors. V. A.G. Federation (2002) 6 NWLR (763) 264. His Lordship Ogundare, JSC (of blessed memory) stated thus at page 422 B – D:

“In my respectful view by the combined effect of Sections 7 (1) and 197 item 22 of the Second Schedule Part 1, the Constitution intends that everything relating to local government be in the province of the State Government rather than in that of the Government of the Federation. The minor exception to this scheme is to be found in item 11 of the Concurrent Legislative List where power is given to the National Assembly with respect to the registration of voters and the procedure regulating elections to a local government council.” (Emphasis supplied).

Item 12 of the Concurrent Legislative List makes it clear that while a State House of Assembly has the power to make laws with respect to election to a local government council in addition to laws made by the National Assembly, such law must not be inconsistent with any law made by the National Assembly. This provision is reinforced by Section 4 (5) of the Constitution, which provides as follows:

“4. (5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.”

It has been forcefully argued by learned counsel for the appellants that there is no conflict between Section 31 of the Electoral Act and Section 1 of Schedule 4 of the Local Government Law because while the former provides for the maximum days notice that could be given before the holding of an election, the latter prescribes the minimum number of days. As conceded by learned counsel for all the parties, the guiding principle in the interpretation of statutes is that where the language used is clear and unambiguous, the words must be given their natural and ordinary meaning. However, where the literal interpretation would lead to absurdity, it is the duty of the court to consider the enactment as a whole with a view to discerning the intention of the legislature and determining whether the language of the enactment is capable of any other fair interpretation. Every clause of a statute should be construed with reference to the con and other clauses of the Act, so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. See: Ojukwu V. Obasanjo (2004) 12 NWLR (886) 169 @ 197 B – F; 210 B; 209 – 210 H – B: Dantsoho V. Muhammed (2003) FWLR (150) 1717 @ 1742 F-H.

This court in Action Congress V. O.S.I.E.C (supra) applied the above stated principles of interpretation to Section 31 of the Electoral Act 2006 and Section 10 of the Osun State Electoral Law 2002 (which provisions are in pari materia with the provisions of Section 1 of Schedule 4 of the Local Government Law of Ondo State, 2004 save that the Osun State Law provides for not less than 21 days notice while the Ondo State Law provides for not less than 14 days notice). His Lordship, Uwa, JCA held at pages 243 F – 244 C as follows:

“The Electoral Act, 2006 and the Osun State Electoral Law, 2002 have each made provisions regarding the local government councils earlier reproduced in this judgment, Osun State Electoral Law clearly stipulates 21 days notice before the holding of an election while section 31 of the Electoral Act 2006 provides 150 days notice before the day appointed for holding an election. In any way one looks at it 150 days and 21 days are not and cannot be read to mean the same. Section 121 of the Electoral Act provides that the procedure for Local Government Elections “shall be the same as is applicable to other Elections under this Act”, which the trial Court also rightly held. The provisions of the Electoral Act 2006 in this regard are clear and unambiguous and should be given a literal and ordinary interpretation/meaning. Where the provisions of a statute are clear, plain and unambiguous the golden rule of interpretation is that such meaning must be adopted. The courts are precluded from resorting to any aid or any other form of interpretation….

I will at this stage consider the provisions of Section 31 of the Electoral Act 2006 closely, “shall” is mandatory, “150 days before the day appointed for holding an election under this Act” as the period of notice is clear, the notice to be in each State of the Federation and the Federal Capital Territory the date of the election must be stated in the notice and state where nomination papers are to be delivered and it is to be published in each constituency. The question now is whether this was done?”

His Lordship continued at page 244 C – E:

“In my considered opinion, the provisions made as to the period of notice anything less than 150 days is acceptable, certainly the object of the provision in section 31 would have been defeated. The failure to comply fully, I would say, has occasioned a miscarriage of justice as the number of days notice has far been abridged by the provisions of the State Law. Section 10 of the Osun State Law is therefore illegal, unconstitutional, null and void to the extent of its inconsistency with section 31 and cannot stand.”

The above decision is a clear and erudite interpretation of the provisions of the laws that were in contention before the lower court. The provisions of Section 1 of Schedule 4 of the Local Government Law of Ondo State are almost identical with the provisions of Section 10 of the Osun State Law interpreted in Action Congress V. O.S.I.E.C, (supra) above. There was no basis, on the facts before it for the court to distinguish the case from the above decision relied upon. Based on the doctrine of stare decisis the lower court was bound to follow the decision of the Court of Appeal on the issue.

The position taken by the court below has been vindicated by the decision of the Supreme Court in O.S.I.E.C. V. A.C. (supra), which is the appeal from the decision in Action Congress V. O.S.I.E.C. (supra). His Lordship, Muntaka-Coomasie, JSC who read the lead judgment reproduced the finding of Uwa, JCA at page 244 C-E reproduced above and held thus at page 320 H (supra):

“With due respect, I am in complete agreement with the findings of the lower court, the resultant legal effect is that the Local Government Councils Election purportedly held on the 19 December 2007 is not only invalid but also null and void.”

See the concurring opinions of Mukhtar, JSC at 327 – 328 H – B; Onnoghen, JSC at 338 G – H; Tabai, JSC at 347 D – E. The ratio of the decision on this point was well captured by Muhammad, JSC when he stated thus at page 351 D – F:

“It is thus clear that the essence of the doctrine of covering the field is to support the principles of hierarchy of legislations as a practical demonstration of the supremacy of the Federal Act when the Federal and State legislations conflict on the same subject matter. Therefore, as section 10 of the Osun State Electoral Law is inconsistent with section 31 of the Electoral Act (a Federal Legislation), the former must suffer the inevitably (sic) effect of its being null and void.”

This court is also bound by this decision.This issue must therefore be and is hereby resolved against the appellants.

Issue 3

Whether the lower court was right in setting aside the Local Government Election held on 15th December, 2007 on the ground that Section 1 Schedule 4 of the Local Government (Amendment Law) 2004 which was relied upon in giving notice of election was unconstitutional,

In support of this issue, learned senior counsel for the appellants contended that in nullifying the election of the appellants and restraining them from parading themselves as chairmen of the Local Government Councils in Ondo State, the lower court violated the basic principle of law on the effect of nullification of a statute. He submitted that it is well settled that nullification of a statute, whether by repeal or for being unconstitutional does not affect anything done under the statute or any right, privilege or obligation, which has accrued thereunder. He referred to a host of authorities including: Abaye V. Ofili (1986) 1 NWLR (15) 134; University of Ilorin V. Adeniran (2003) 17 NWLR (849) 214 @ 231; Adesoye V. Governor, Osun State (2005) 16 NWLR (950) 1 @ 32 and A.G. Plateau State V. Goyol (2007) 16 NWLR (1059) 57. He submitted that had the lower court adverted its mind to these authorities, it would have come to the conclusion that even though Section 1 Schedule 4 of the Local Government Electoral Law of Ondo State was unconstitutional, the election held pursuant to that law on 15th December 2007 was valid because the law was valid as at the date of the election and the judgment of the court only took effect on 24th June 2009 when it was given. He urged the court to set aside that part of the judgment that set aside the election conducted on 15th December 2007.

In reply to the above submissions at pages 31 and 32 of his brief, learned senior counsel for the 1st respondent submitted that the appellants could not have acquired vested interests in an election that was declared null and void. He contended that nothing could be placed on the election found to be incurably bad. He relied on: MacFoy V. UAC Ltd. (1962) AC 152 @ -160. He urged the court to hold that the lower court rightly set the election aside.

Learned senior counsel, the 2nd respondent addressed this issue at pages 21-23 of his brief. In addition to the argument of learned counsel for the 1st respondent on the effect of an act which is a nullity, he submitted that even if for the purposes of argument the election was regulated by the State Law that prescribed 14 days notice before the conduct of any election into the Local Government, the appellants failed to comply with the law, as Exhibit A tendered before the court dated 6th December 2007 barely gave nine days notice, He submitted that it would have amounted to a judicial somersault for the court not to have set aside the election conducted on 15th December 2007 after declaring the process that led to the election null and void. He argued that the appellants cannot benefit from an illegal act.

He noted that the Supreme Court in O.S.I.E.C. V. A.C. (supra) per Muntaka-Coomasie, JSC at 320 H upheld the decision of the Court of Appeal in Action Congress V. O.S.I.E.C. (supra) to the effect that failure to give adequate notice of election renders the election not only illegal but also null and void. In further support of his contention that the court rightly set aside the election, he referred to the concurring decision of Onnoghen, JSC at 339 F – G. He urged the court to disregard the authority of Abaye V. Ofili (supra) relied upon by the appellants and to resolve this issue against them.

In the course of resolving issue 1 above, I held that the trial court was right in following the decision of this court in Action Congress V. O.S.I.E.C. (supra) in holding that Section 1 of Schedule 4 of the Local Government Law of Ondo State is inconsistent with Section 31 of the Electoral Act 2006 and therefore null and void to the extent of its inconsistency. Based on that finding the court rightly held that the election conducted on 15th December 2007 pursuant to the said law was unconstitutional as it was conducted in violation of the Constitution and the Electoral Act 2006. In Action Congress V. O.S.I.E.C. (supra) this court set aside the election conducted on the basis of 21 days notice as provided for in Section 10 of the Osun State Electoral Law 2002. The Supreme Court upheld the order in O.S.I.E.C. V. A.C. (supra) at 324 A – B. I am therefore of the considered view and I do hold that the lower court was right to have set aside the election of the appellants in the circumstances of the case.

The purport of the decisions in cases such as Abaye V. Ofili (supra); University of Ilorin V. Adeniran (supra) and the plethora of authorities cited by learned senior counsel for the appellants is that where legislation has been repealed or nullified, the rights, duties and obligations accruing under the said Act would not be affected. As rightly pointed out by learned Senior Counsel, the 2nd respondent, His Lordship Onnoghen, JSC dealt with this issue decisively in O.S.I.E.C. V. A.C. (supra) at 339 – 340 E – B where he held thus:

“The second point I want to comment on is the principle that the nullification of an enactment does not affect the rights and liabilities that might have accrued under it prior to the nullification.

The above principle remains good law but the question is whether it applies to the facts of this case.

I hold the considered view that the principle applies herein in the sense that whatever salary, privileges and or benefits the appellants in the second appeal might have earned or enjoyed prior to the nullification of the enactment under which their Election was conducted cannot be taken away following the nullification. These are the rights that enured to the appellants following the election in question. The nullification also does not affect the status of the appellants as Chairmen of their respective Local Government Councils during the life span of the enactment under which they were elected i.e. prior to the nullification…

In election matters, where an election is nullified for any reason, a re-election is usually ordered and the nullification usually does not affect official acts of the officers/persons whose election had been nullified. To say that the people whose election has been declared null and void must continue to remain in office, maybe indefinitely or till the end of their tenure assigned by law so annulled is not only contrary to common sense but would amount to allowing the appellants to keep what had been found to have been gotten wrongly or illegally.”(Emphasis supplied)

In the instant case, the appellants concede that their term of office had expired by effluxion of time. They are however dissatisfied with the order setting aside their election and restraining them from parading themselves as Chairmen of Local Government Councils in Ondo State. The position of the law is that the election that brought them to office having been declared null and void cannot be allowed to stand. With effect from the date of the judgment they were rightly restrained from parading themselves as Chairmen of their respective Local Government Councils. On the decided authorities referred to above, particularly the illuminating opinion of Onnoghen, JSC (supra) the appellants would only be entitled to whatever salary, privileges and or benefits they might have earned or enjoyed prior to the nullification of the enactment under which their election was conducted.Having held that the lower court was right in setting aside the election held on 15th December 2007, this issue is resolved against the appellants.

In conclusion I hold that this appeal lacks merit. It is accordingly dismissed in its entirety. There shall be no order for costs.

CROSS APPEALS

As stated in the introduction to the main appeal, the respondents were dissatisfied with that part of the judgment of the lower court at page 364 of the record where the learned trial Judge held thus:

“I hold that the provision of Section 12 (4) 1) of the Local Government (Amendment) Law 2007 was not complied with before the 1st defendant purportedly dissolved the eighteen local governments in Ondo State on 4th March 2009.”

The 1st respondent’s notice of cross appeal is dated 10/9/09 while the 2nd respondent’s notice of cross appeal is dated 16/9/09. Both notices contain one ground of appeal. The 2nd respondent’s notice of cross appeal is at pages 2 – 4 of the supplementary record of appeal. In compliance with the rules of this court the parties filed and exchanged briefs of argument in respect of the cross appeals. At the hearing of the appeal, J.O. BAIYESHEA, SAN adopted and relied on the 1st cross appellant’s brief dated and filed on 18/11/2010 and urged the court to allow it. The 2nd cross appellant, EYITAYO JEGEDE, SAN adopted and relied on his brief dated 6/12/2010 and deemed filed on 9/12/2010 and his reply brief dated and filed on 31/1/2011. He urged the court to allow the cross appeal. SHINA OLANIYAN ESQ., adopted and relied on the cross respondent’s brief dated 22/11/2010 and filed on 23/11/2010 in response to the 1st cross appeal and the cross respondents’ brief dated 17/1/2011 and filed on 18/1/2011 in respect of the 2nd cross appeal and urged the court to dismiss both cross appeals.

1st Cross Appeal

The sole issue formulated by the 1st cross appellant for the determination of his cross appeal is:

”Whether the learned trial Judge rightly held that Section 12 (4) of the Local Government (Amendment) Law 2007 was applicable/relevant for determining the validity of dissolution of the Executive and Legislative Councils in Ondo State and thereby holding that the action of Ondo State Governor was contrary to law.”

The cross respondents distilled the following issue for determination viz:

“Whether the court below was not right in holding that the ft defendant is not empowered to dissolve Local Government Councils without due compliance with S. 12 (4) (1) of the Local Government (Amendment) Law 2007 of Ondo State.”

I shall determine this cross appeal on the issue formulated by the cross appellant. In support of the 1st cross appeal, learned senior counsel for the 1st cross appellant submitted that a clear reading of Section 12 (4) (1) of the Local Government (Amendment) Law 2007 shows that it refers to the dissolution of a Local Government as an entity and not the organs by which they are run. He contended that the claim of the appellants in the originating summons was at variance with the provisions of Section 7 of the Constitution and Section 12 (4) (1) of the Local Government Law, which they relied upon. He noted that Section 318 of the Constitution defines “Local Government Area” or “Local Government Council” as including an “Area Council” and submitted that the said section as well as section 12 (4) (1) of the Local Government Law could be taken to be “interchangeably referring to Local Governments as entities.” He argued that subsection (2) of section 12 (4) relied upon by the learned trial Judge in holding that the Law refers to the executive and legislative councils of a Local Government and not Local Government as an entity does not contain anything to that effect, Relying on the case of: Basinco Motors Ltd. V. Woermann-Line (2009) ALL FWLR (485) 1641 @ 1653 – 1654 he submitted that it is not the duty of the court to fill in the lacunae in a law or to read into it what is not there. He urged the court to apply the rules of interpretation as stated in Basinco’s case (supra) and hold that Section 12 (4) (1) and (2) cannot be the basis for the finding that the appellant violated the law by dissolving the executive and legislative councils and not the local governments as entities.

As a preliminary observation, learned counsel for the cross respondents noted that the notice of cross appeal is not contained in the record of appeal in compliance with Order 8 rule (d) of the Court of Appeal Rules 2007 and further that there is no record in support of the appeal and no order obtained to use the record compiled for the main appeal to prosecute the cross appeal. However, the objection is deemed abandoned, as it was not raised at the hearing of the cross appeal.

In reply to the submissions in support of the cross appeal, learned senior counsel submitted that a holistic reading of Section 12 (4) (1) of the Local Government Law shows clearly that the intention of the lawmakers is to empower the Governor to dissolve the executive and legislative arms of the Local Government Council in whom the powers of the Local Government reside and not the Local Government as an entity. He referred to the definition of “Government” as contained in Section 56 (1) of the Law, which provides:

“Government” includes the Government of Ondo State or of a Local Government Area in Ondo State or any person exercising power or authority on its behalf”

He submitted that the courts are obliged to prefer an interpretation that would serve the overall interest of the legislation and best convey its object and purpose, particularly where the words are clear and unambiguous. He referred to Bola Tinubu V. I.M.B. Securities (2001) 10 SCNJ 1; (2001) FWLR (71) 1003. He submitted that the learned trial Judge was right when he held that the law could not refer to the geographical expression of Local Government since the same law provided for a replacement of those removed by an appointment of “an interim Committee to oversee its affairs for a period …” He urged the court to construe the law in its natural and ordinary meaning, as to do otherwise would lead to absurdity. He argued that there is no lacuna in the law to be filled by the court. He urged the court to be guided by the decisions in Dantosho V. Muhammed (2003) FWLR (15) 1717 @ 1742; Abiodun V. Chief Judge, Kwara State (2008) ALL FWLR (448) 340 @ 391 by reading the two subsections of Section 12 (4) together to determine the intention of the law maker.

In the course of the main judgment I referred to the guiding principle in the interpretation of statutes, which is: where the language used is clear and unambiguous, the words must be given their natural and ordinary meaning. However, where the literal interpretation would lead to absurdity, it is the duty of the court to consider the enactment as a whole with a view to discerning the intention of the legislature and determining whether the language of the enactment is capable of any other fair interpretation. Every clause of a statute should be construed with reference to the con and other clauses of the Act, so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter, See: Ojukwu V. Obasanjo (2004) 12 NWLR (886) 169 @ 197 B – F; 210 B; 209 – 210 H – B; Dantosho V. Muhammed (2003) FWLR (150) 1717 @ 1742 F-H.

I shall proceed to apply the principles to relevant provisions of the Constitution and the Local Government (Amendment) Law, Section 12 (4) (1) and (2) of the Local Government (Amendment) Law, 2007 provides:

“12. (4) 1. The Governor shall, acting on sanction of resolution supported by two-third majority of the House of Assembly dissolve any local government and appoint an interim committee to oversee its affairs for a period of not more than three months or for such longer or further period as the House of Assembly may determine.

(2) The House of Assembly may whether or not upon request by the Governor in any other case by two-third majority establish an interim Local Government to oversee the affairs of any Local Government for a period not exceeding three months in the first instance. ”

Section 7 (1) of the 1999 Constitution provides:

(1) The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.

Subsection (2) sets out the requirements to be taken into consideration by the person authorized by law to prescribe the area over which a local government council may exercise authority.

A combined reading of these two subsections shows that the geographical area that comprises a local government is different from the local government council whose duty it is to administer its affairs. A careful reading of Subsections (1) and (2) of Section 12 (4) of the Local Government (Amendment) Law shows that upon the dissolution of a Local Government either by the Governor acting on sanction of resolution supported by two-third majority of the House of Assembly or by the House of Assembly, whether or not upon request by the Governor, the local government as an entity remains and it is in respect of this entity that the Governor or House of Assembly is empowered to appoint an interim committee to oversee its affairs. If, as contended by learned senior counsel, the Local Government as an entity is what is being referred to in the above provisions, what would be the essence of an interim committee? There would be nothing to oversee. It is my considered view that the language of Section 12 (4) (1) and (2) of the Local Government (Amendment) Law is clear and unambiguous and should be given its natural and ordinary meaning. Having regard to the fact that elections into Local Government Councils are the result of a democratic exercise expressing the will of the people, it stands to reason that it is the intention of the legislature that where such elected officers are to be removed by the Governor or the House of Assembly, such removal should be by strict adherence to the same democratic process i.e. with the sanction of two-third majority of the House of Assembly. See: Abiodun V. Chief Judge, Kwara State (2008) ALL FWLR (448) 340 @ 391 C – E, I therefore agree with the learned trial Judge that reference in Section 12 (4) (1) and (2) of the Local Government (Amendment) Law, 2007 to dissolution of Local Governments is reference to the dissolution of both the executive and legislative arms of the local government council, It is not in dispute that the 1st cross appellant unilaterally dissolved the 18 Local Government Councils in Ondo State on 4th March 2009. The finding of the learned trial Judge that the 1st respondent failed to comply with Section 12 (4) (1) of the Local Government (Amendment) Law in dissolving the said Local Government Councils cannot be faulted.

The sole issue in this cross appeal is accordingly resolved against the 1st cross appellant. The cross appeal fails and is accordingly dismissed.

2nd Cross Appeal

The 2nd cross appellant also distilled a single issue for determination his cross appeal thus:

“Whether on the import of the counter claim before the court to the effect that the plaintiffs/appellants were not constitutionally and democratically elected, it was still right or relevant for the trial court to hold that the provision of Section 12 (4) (i) of the Local Government (Amendment) Law 2007 was violated by the 1st respondent.

The cross respondents formulated the following issue:

“Whether having held that the Local Government Councils in Ondo State were unlawfully dissolved it was at cross with the Counter Claim to later hold that the elections into the same Local Governments was not legal and Constitutional.”

This cross appeal shall also be determined on the issue formulated by the cross appellant.

In support of the 2nd cross appeal, the learned 2nd cross appellant contended that the counter claim was a complete defence and answer to the entirety of the cross respondents’ claim and its success obviated and negated the declaration of the court that the dissolution of the 18 Local Governments in Ondo State was not in compliance with Section 12 (4) (1) of the Local Government Law. He referred to page 376 of the record where the learned trial Judge in the course of the judgment held thus:

“The defendants having established their counter claim in parts, the plaintiff had no legal basis to have occupied their position as Chairmen of their respective Local Government Councils in the first place. There was therefore no need for a formal dissolution of the Local Government Councils …”

He submitted that Section 7 of the Constitution only guarantees a democratically elected council. He contended further that the provisions of the Constitution and the Local Government Law did not guarantee the undemocratic process that brought the cross respondents into office. He submitted that having declared the process that brought the cross respondents into office null and void the lower court could not turn round to say that there was non-compliance with Section 12 (4) (1) of the Local Government Law. Relying on the case of Chief Harold Shodipo V. Lemnikainen (1986) 1 NWLR (15) 220 @ 223, he submitted that the court cannot close its eyes to illegality. He submitted further that whether or not there was compliance with Section 12 (4) had become an academic issue once the court held that the cross respondents were not validly elected.

In reply to the 2nd cross appeal, learned counsel for the cross respondents submitted that the cross appeal is an abuse of the cross appeal procedure. He submitted that a cross appeal is only used to set aside a finding which is crucial and fundamental to the determination of a case. He referred to: Olusola V. Trusthouse Property Ltd. (2010) 8 NWLR (1195) 1 @ 29. He submitted that a calm reading of the judgment of the court below would reveal that the learned trial Judge merely stated the position of the law when he held that the appellants were improperly removed from office without complying with the relevant law.

In reply, the learned 2nd cross appellant referred to both the main claim and the counter claim before the lower court and submitted that against the backdrop of the issues for determination, the holding of the lower court that the provisions of Section 12 (4) (1) were not complied with before the 1st cross appellant dissolved the 18 Local Governments, was a crucial and/or material aspect of the judgment that may be challenged by way of cross appeal where the cross appellant is dissatisfied with it. He also referred to the case of Olusola V. Trusthouse Property Ltd. (supra); and A.T.E. Co. Ltd, V. Military Governor Ogun State (2009) 15 NWLR (1163) 26 2 72 B; Pacers Multi Dynamic V. M.V. “Dancing Sisters” (2000) 3 NWLR (648) 241 @ 247 and maintained that the cross appeal cannot be construed as an academic exercise. He urged the court to allow the cross appeal.

In their originating summons filed on 10/3/09, the plaintiffs before the lower court sought the determination of two questions:

“1. WHETHER under and by virtue of Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 12(4) of the Local Government (Amendment) Law, 2007, the 1st Defendant can unilaterally and without acting on sanction of resolution supported by the two-third majority of the Ondo State House of Assembly dissolve any or all of the Local Government Councils in Ondo State presided over by the 1st to 18th Plaintiffs.

2. WHETHER the act of unilateral dissolution of the eighteen Local Government Councils in Ondo State legally presided over the 1st to the 18th Plaintiffs by the 1st Defendant on Wednesday the 4th day of March, 2009, without acting on sanction of resolution supported by the two-third majority of the House of Assembly of Ondo State is constitutional, legal, valid and effective.”

By their counter claim, the defendants sought several declarations including:

The issue of compliance with Section 12 (4) (1) and (2) of the Local Government (Amendment) Law, 2007 was therefore a serious issue in contention between the parties, In the course of resolving the main claim, the court made a pronouncement on the issue before proceeding to determine the counter claim. The pronouncement is far reaching to the extent that it states categorically that the 1st respondent failed to comply with the law when it dissolved the 18 local government councils in Ondo State. A decision not appealed against remains valid and is deemed accepted by the person against whom it is given and therefore binding. See: Iyoho V. Effiong & Ors. (2007) 11 NWLR (1044) 31 @ 55 B. It would therefore not be correct, as contended by learned senior counsel for the cross respondents to say that the 2nd cross appeal is an abuse of the cross appeal procedure.

I have given careful consideration to the submissions of the learned 2nd respondent. In determining the issues before the court, the learned trial Judge considered and determined the originating summons first before proceeding to determine the counter claim. In resolving the originating summons, he answered the first question in the negative. However, when he proceeded to consider the counter claim he agreed with the position of the defendants/counter claimants that the election that brought the plaintiffs into office was unconstitutional, null and void for failure to give the requisite notice prescribed by Section 31 of the Electoral Act and he set it aside. In concluding the judgment His Lordship held at page 376 of the record:

“The counter claim of the defendants has therefore defeated and/or diminished the claim of the plaintiffs. In the circumstances, the claim of the plaintiffs fails and same is hereby dismissed in its entirety.”

In light of the above, it would not be correct to say, as urged by the learned 2nd respondent, that the learned trial Judge declared the election unconstitutional and then turned round to hold that there was non-compliance with Section 12 (4) (1) of the Local Government (Amendment) Law 2007 before the 18 Local Government Councils were dissolved.

The learned senior counsel also argued that Section 7 of the Constitution and the provisions of the Local Government Law did not guarantee the undemocratic process that brought the cross respondents into office. With respect to learned senior counsel, it is not for the cross respondents to determine whether or not any political office holder has been democratically elected or not. That is the duty of the courts as prescribed by the Constitution. The learned trial Judge was therefore correct when he held that the cross appellant failed to comply with Section 12 (4) (1) of the Local Government (Amendment) Law 2007 in dissolving the aforesaid Local Governments. The sole issue in this cross appeal is accordingly resolved against the cross appellant. I hold that the 2nd cross appeal lacks merit and is hereby dismissed.

In conclusion the main appeal fails and is hereby dismissed. The two cross appeals also fail and are accordingly dismissed. The judgment of the High Court of Ondo State, Akure Judicial Division in Suit No. AK/62/2009 delivered on 24/6/09 is hereby affirmed. There shall be no order for costs.

CHINWE E. IYIZOBA, J.C.A: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the judgment. His Lordship has meticulously considered and dealt with all the issues raised both in the appeal and in the two cross-appeals.

By way of emphasis, I wish to make a little contribution on the main issue for determination in the appeal which is whether the court below was right in law in declaring Section 1 of Schedule 4 of the Local Government Administration conduct of Election and Allied Matters (Amendment) Law 2004 of Ondo State unconstitutional and inconsistent with Section 31 of the Electoral Act, 2006.

Item 11 of Part II of the Second Schedule to the Constitution empowered the National Assembly to make laws with respect to the registration of voters and the procedure regulating elections to a Local Government Council. Item 12 provides that nothing in paragraph 11 shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the national Assembly. Section 31 of the Electoral Act (a law made by the National Assembly) provides for 150 days notice of the date of election and delivery of nomination papers. Section 1 of Schedule 4 of the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law 2004 (a law made by the Ondo State House of Assembly) reduced the period of notice to 14 days. The issue therefore was whether this law is inconsistent with the relevant section of the Electoral Act. Learned Senior Counsel for the appellants ingeniously struggled to extricate his clients’ necks from the noose created by this obvious inconsistency. First he argued that there is no inconsistency between the two provisions as one prescribes the maximum number of days for notice of the election while the other prescribes the minimum number of days. Next, learned counsel argued that section 31 of the Electoral Act is exempt from section 121 of same law and is therefore inapplicable to local government elections in the States. Counsel also argued that the word “Commission” in the relevant provisions in the Electoral Act applies to Independent National electoral Commissions and not to State Electoral commissions; that if the law makers wanted section 31 of the Electoral Act to apply in the case of Local Government elections, they would have specifically included the state Electoral commissions. The arguments with all due respect were not tenable. At any rate as succinctly put in the lead judgment the contention that section 31 of the Electoral Act was not applicable to Local Government Elections was not made an issue in the lower court. By their arguments in the lower court, the appellants conceded that the section applied to Local government Councils. The argument, being a fresh issue could not therefore be raised in the appeal without the leave of the court.

However, the issue has been laid to rest by the Supreme Court in the case of O.S.I.E.C. V. A.C (2010) 19 NWLR (Pt. 1226) 273. There, the Osun State House of Assembly passed a similar law as that of Ondo State shortening the period of notice to 21 days. The Supreme Court in a unanimous judgment upheld the decision of the Court of Appeal Ibadan division striking down the Osun State law as inconsistent with Section 31 of the Electoral law and consequently null and void. Muhammad J.S.C. in his contribution at pages 350 – 351, F-A; 351, F-G observed:-

“It is thus legal and legitimate for both the National Assembly and a State House of Assembly to legislate on same subject matter provided there is no inconsistency from the State law. Where there is inconsistency however, the State law will be declared null and void to the extent of its inconsistency, and in order not to create any vacuum, resort wilt be had to the old jurisprudential principle of covering the field, that is to say, that since there is a federal legislation on the subject matter, it is not necessary for a federating State to legislate on that area and the provision made by the National Assembly covers the subject matter in question. In the present appeal, section 10 of Osun State Electoral law, 2002 provides for 21 days for publicizing a notice of an election (Local Government Area Councils’ Election) whereas the Electoral Act (made by the National Assembly) had already made provision of 150 days for publicizing notice of an election in any State and the Federal Capital Territory. In the circumstances, it is the latter that will prevail and the former to be declared null and void…. It is my humble view that the court below was quite right in its decision by holding the provision of section 10 of the Osun State Electoral Law as unconstitutional, null and void….”

This appeal before us is on all fours with the above case. The lower court was consequently right in setting aside the election held on the 15th day of December 2007 based on the law prescribing 14 days notice. For this reason and the more detailed reasons in the lead judgment I also hold that the main appeal and the two cross-appeals lack merit and are accordingly all dismissed. I abide by the order as to costs in the lead judgment.

MOORE A. A. ADUMEIN, J.C.A: I read in draft the judgment just delivered by my learned brother, KEKERE-EKUN, JCA. His Lordship has in a very meticulous way analyzed and resolved the issues in this appeal and the cross-appeals. I completely agree with His Lordship that the appeal and the cross-appeals lack merit.

Section 1 of Schedule 4 to the Local Government Administration, Conduct of Election and Allied Matters (Amendment) Law, 2004 of Ondo State is inconsistent with Section 31 of the Electoral Act, 2006 and it is void to the extent that it provides for a pre-election notice of 14 days instead of 150 days provided for in the Electoral Act. See OSUN STATE INDEPENDENT ELECTORAL COMMISSION V. ACTION CONGRESS (2010) 19 NWLR (Pt. 1226) 273.

The appellants/cross respondents were wrongly elected on the 15th day of December, 2007 as Chairmen of their respective local government councils in that no appropriate notice of the election, as required by the Electoral Act 2006, was given prior to the purported election.

The 1st respondent/cross appellant was, however, wrong in unilaterally dissolving the 18 (eighteen) local government councils in Ondo State without complying with Section 12(4) (1) of the Local Government (Amendment) Law, 2007.

It is for these reasons and the better reasons given in the leading judgment of His Lordship, KEKERE-EKUN, JCA that I too dismiss the appeal and the two cross appeals.

I also make no order for costs.

Appearances

SHINA OLANIYAN with ADEWALE OYEWUSI ESQ.For Appellant

AND

J.O. BAIYESHEA, SAN with IBUKUN ADEMOLA IBITOYE ESQ., and AMUSA OLOMO ESQ., for 1st Respondent/1st Cross Appellant.

EYITAYO JEGEDE, SAN, A.G. ONDO STATE, 2nd Respondent/2nd Cross Appellant in person with W.R. OLAMIDE ESQ., DCL., STEVE ADEBOWALE ESQ., DDPP, F.K. SALAMI ESQ., DDCL and BODE AIYEGBUSI ESQ., SLO, Ministry of Justice, Ondo State.

2nd, 7th, 11th and 12th Appellants present.

2nd Respondent present in person.For Respondent