HON. YINUS AKINTUNDE & ORS V. OLONA YINKA & ORS
(2010)LCN/3980(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2010
CA/I/51/08
RATIO
APPLICATION PRECEDING THE HEARING AN APPEAL: POSITION OF THE LAW WHERE THERE IS AN APPLICATION PRECEDING THE HEARING OF AN APPEAL
It is trite and the practice of our courts that once there is an application preceding the hearing of an appeal, same has to be looked into and resolved first before going into the substantive matter if need be, depending of course, on the outcome of the application, more especially as in the present case where same touches on the jurisdiction of this Court to hear the appeal. The present application would be likened to an objection to the hearing of the substantive appeal, counsel on both sides agreed at the hearing that the application be taken first. In the case of NEPA V. ANGO (2001) 17 WRN 142 at 154 (2001) 15 NWLR Pt. 737 629 at 646. on the purpose of taking a preliminary issue/objection first, his Lordship, Salami J.C.A. had this to say:- “The purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which, if it succeeds, would put an end to the appeal.” The above holding is in line with the apex court’s decision in the case Of THE STATE V. ONAGORUWA (1992) 2 NWLR (Pt. 221) Page 33 where it held thus:- “Where an objection is raised as to the competence of an appeal, the jurisdiction of the court to entertain it becomes an issue. It becomes therefore fundamental for the court to deal with it first before deciding on the next course of action.” See also LEKWOT V. JUDICIAL TRIBUNAL (1993) 1 2 NWLR (Pt. 276) 410 at 442, AMADASUN V. 1JMR (2007) 13 NWLR (Pt. M51) P. 214 at P. 226, and also a recent decision of this Court and Division in OLASEBIKAN ABBAS & ANOR V. KAMIL TOPE OYEDELE IN CA/I/EPT/HA/85/08 delivered on 8th July, 2010 (unreported). Timeously dealing with any issue touching on the jurisdiction of the court is necessary as it goes to the root of the matter, that is, the Court’s legal capacity to make such orders as sought in the reliefs. See BARCLAYS BANK (NIG.) LTD. V. CBN. (1976) 6 SC 175, OKAFOR V. A-G. ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659 and OLANIYI V. AROYEHUN (1991) 5 NWLR (Pt 194) 652. For these reasons, it is necessary to determine the application first. PER CHIDI NWAOMA UWA, JCA
WHETHER THE COURT IS ENTITLED TO AND FREE TO LOOK INTO ITS RECORD FOR MATERIALS AND EVIDENCE IN TAKING A DECISION
In a recent decision of this Court and division, SULAIMAN V. SWORD, SWEET & CONFECTIONERY (NIG.) LTD. (2010) 4 WRN P. 84 at 25, I did say that: “It is trite that the court is entitled to and free to look into its record for materials and evidence in taking a decision.” PER CHIDI NWAOMA UWA, JCA
DUTY OF COURT: WHETHER THE COURTS ONLY DEAL WITH LIVE ISSUES AND WOULD ONLY LOOK INTO RESOLVING OR DETERMINING SAME
It is trite that an essential quality of a suit or an appeal fit to be looked into by a court is that, there should exist between the parties a matter in actual controversy which the court would look into as a live issue. The Courts therefore deal with only live issues and would only look into resolving or determining same. See AKEREDOLU V. AKINREMI (1986) 2 NWLR (PART 25) 710 AT 725. PER CHIDI NWAOMA UWA, JCA
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
K. M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. HON. YINUS AKINTUNDE (CHAIRMAN, OYO WEST LOCAL GOVERNMENT)
2. HON. G. A. OLAOMI (CHAIRMAN, AKINYELE LOCAL GOVERNMENT)
3. HON. OGUNGBOLA YAKUB (CHAIRMAN, ITESIWAJU LOCAL GOVERNMENT)
4. HON. JUBRIL ALABI MUHAMMED (CHAIRMAN, IBADAN SOUTH-EAST LOCAL
GOVERNMENT)
5. HON. KEHINDE OLAOSEBIKAN (CHAIRMAN, OLUYOLE LOCALGOVERNMENT)
6. HON. ABIMBOLA KOLAJO A. (CHAIRMAN, SAKI EAST LOCAL GOVERNMENT)
7. HON. ALABEDE RAFIU O. (CHAIRMAN, ATISBO LOCAL GOVERNMENT)
8. HON. ODEYEMI T. (CHAIRMAN, IBADAN NORTH EAST LOCAL GOVERNMENT)
9. HON. JOSIAH OLUFEMI IDOWU (CHAIRMAN, IBADAN NORTH WEST LOCAL GOVERNMENT)
10. HON. SAHEED YUSUF (CHAIRMAN, ISEYIN LOCAL GOVERNMENT)
11. HON. BIMBO ADEPOJU (CHAIRMAN, IBARAPA EAST LOCAL GOVERNMENT)
12. HON. SALAWU MUMINI ADENIYI (CHAIRMAN, OYO EAST LOCAL GOVERNMENT)
13. HON. ODUNAYE OLUSESAN A. (CHAIRMAN, IBARAPA CENTRAL LOCAL GOVERNMENT)
14. HON. MICHEAL AWOLOLA IDOWU (CHAIRMAN, IWAJOWA LOCAL GOVERNMENT)
15. HON. RABIU MUSE OLASUNKANMI
(CHAIRMAN, ONA-ARA LOCAL GOVERNMENT) Appellant(s)
AND
1. OLONA YINKA (CHAIRMAN, UNITED NIGERIA PEOPLES PARTY, OYO STATE)
2. PRINCE TUNDE ATANDA (CHAIRMAN, REPUBLICAN PARTY OF NIGERIA, OYO STATE)
3. HON. ARIWOOLA OLAFENWA (CHAIRMAN, NEW NIGERIA PEOPLES PARTY, OYO STATE)
4. ELDER TUNDE AJAYI (CHAIRMAN, PEOPLE REDEMPTION PARTY, OYO STATE)
5. ALHAJI YEMI OLASUPO (CHAIRMAN, FOR DEMOCRACY PARTY, OYO STATE)
6. DR. S. S. OLALERE (CHAIRMAN, ACTION ALLIANCE PARTY, OYO STATE)
7. REV. DR. S. AWOPEGBA (CHAIRMAN, NATIONAL CONSCIENCE PARY, OYO STATE)
8. OTUNBA LADELE OMOTAYO (CHAIRMAN, MOVEMENT FOR DEMOCRACY AND JUSTICE OYO STATE)
9. COMRADE ADEGBOYEGA A. ADELU (CHAIRMAN, ALL PROGRESSIVE GRAND ALLIANCE, OYO STATE)
10. ARIYIBI ADESINA (CHAIRMAN, NATIONAL DEMOCRATIC PARTY, OYO STATE)
11. CHIEF DEJO AFOLABI (CHAIRMAN, PEOPLES DEMOCRATIC PARY, OYO STATE)
12. BARR. F. A. MUSTAPHA (CHAIRMAN, N.D.P., OYO STATE)
13. HON. E. O. ADELOWO (CHAIRMAN, DEMOCRATIC ALLIANCE, OYO STATE)
(For themselves and on behalf of all Members of the Political Parties mentioned)
14. OYO STATE INDEPENDENT ELECTORAL COMMISSION (OYSIEC)
15. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
16. COMMISSIONER OF POLICE Respondent(s)
CHIDI NWAOMA UWA, JCA (Delivering the leading judgment): This is an appeal against the Ruling of P. O. Ige, J of the Oyo State High Court delivered on the 11th day of December, 2007 wherein the Court dismissed the application of the Appellants herein for joinder to this action and for the setting aside of the ruling of the High Court delivered on 23rd November, 2007 which set aside the election which brought the Appellants into office as Chairmen of Local Government Councils of Oyo State, in the same ruling granted leave to the 1st – 13th Respondents herein (who were plaintiffs) to discontinue the suit.
Dissatisfied with the lower court’s decision, the Appellants filed their original Notice of Appeal against the Ruling on 11th March, 2008; later filed an amended Notice of Appeal dated 18th September, 2008 on the same day deemed as properly filed on 29th June, 2009.
A highlight of the background facts leading to this appeal are important for a better appreciation of the issues for resolution before this Court.
Before the lower court, by an Originating Summons dated 23rd April, 2007, the 1st – 13th Respondents (hereafter referred to as the Respondents) instituted the action leading to this appeal against the 14th to 16th Respondents herein, claiming the following declaratory and injunctive reliefs:- (page 3 of the records).
“(1) A DECLARATION that the composition of the 1st Plaintiff is unconstitutional, illegal and the appointment of the members null, void and of no effect.
(2) A DECLARATION that the conduct of any election by the 1st Respondent as presently constituted is a violation of the provisions of the OYSIEC Law, the Constitution of Nigeria and the Fundamental Human Rights of the Applicants.
(3) AN ORDER setting aside any decision of the 1st Respondent to conduct any Local Government election in Oyo State or any step taken or to be taken in respect of that election.
(4) AN ORDER striking out Section 9 of the OYSIEC Law.
(5) Injunction restraining the 1st Respondent as presently constituted from conducting any election into any Local Government Office in Oyo State.
(6) An Injunction restraining the 1st Respondent from conducting any Local Government election until it is comprised of people in accordance with Section 4(2) of the OYSIEC Law.
(7) An Injunction restraining the 2nd Respondent from releasing the Voters Register to or in any way assisting the 1st Respondent in the conduct of Local Government elections.”
While the action was pending, the Respondents herein (as applicants) filed a Motion for Interlocutory Injunction seeking to restrain the 14th Respondent (as 1st Respondent) (Oyo State Independent Electoral Commission – OYSIEC) from conducting any election into any of the thirty three (33) Local Governments in Oyo State pending the hearing and determination of the substantive case. In the said Motion the following relief was sought:-
UAN ORDER of this Honourable Court for an order of Interlocutory Injunction restraining the 1st Respondent/Respondent from conducting an election into any of the Local governments in Oyo State pending the hearing and determination of the originating summons already filed in this Suit.”
While the above application was pending with others, the presiding judge Yerima, J. made an interim order of injunction restraining the 14th Respondent from conducting any Local Government election pending the hearing of the Originating Summons. Part of the order made on the 8th May, 2007 (at page 96 of the printed records) is as follows:-
“I hereby reiterate and order that the 1st Respondent is restrained from conducting any Local Government elections on the 12th May, 2007 or thereafter pending the hearing and determination of the Originating Summons.”
The 14th respondent in disobedience of the subsisting order of Court conducted a Local Government election. Thereafter, the Respondents filed another application dated 19th October, 2007, on 23/10/07 to set aside the election, before P. 9. Ige, J. The 14th Respondent (as 1st Defendant/Respondent) did not oppose the application. In its Ruling of 23rd November, 2007, the Court set aside the conduct of the election held on 25th May, 2007 in violation of the earlier order of the Court.
Consequently, the Respondents as plaintiffs discontinued the action by filing a Notice of Discontinuance on the 26th November, 2007. (Page 180 of the records). Thereafter, the Appellants herein on the 27th of November, 2007 on application sought the following prayers from the Court: – (Pages 188 – 193 of the printed records)
“(i) AN ORDER joining the 1st to 15th Applicants/Parties seeking to be joined in the suit;
(ii) AN ORDER seating aside the order of this Court dated the 23rd of November, 2007.”
The learned trial judge consolidated the applications and in its Ruling, dismissed the application of 27/11/07 and granted leave to the Respondents to discontinue the action as per the Notice of 26/11/07 which has given rise to the present appeal.
In accordance with the Rules of this Court the parties exchanged and filed their respective briefs of argument.
On 22nd June, 2010 when this appeal came up for argument, there were two pending applications. The first, dated and filed on 18/6/10 for further extension of time to regularize the brief of argument of the 1st – 13th Respondents dated 4/2/10, originally filed on 5/2/10, was granted and the brief deemed as filed and served on that day.
The second application dated 16/6/10 filed on the 18/6/10, a Motion on Notice brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2007 was filed by the 1st – 13th Respondents/Applicants in which the following orders were sought:-
“(1) AN ORDER striking out appeal No. CA/I/51/2008 as the subject matter of the appeal has become an academic exercise.
(2) AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance.”
The grounds for the application are as follows:
“(i) The jurisdiction of a Court is to determine a live issue;
(ii) NO Court has jurisdiction to entertain and determine an academic issue;
(iii) Appellants’ rights to challenge the decision of the trial court by way of an appeal is predicated on their election as Chairmen of the thirty-three Local Government Area of Oyo State;
(iv) Appellants’ tenure of office by their Notice of Appeal and various affidavits which they filed commenced on 25th May, 2007 and ended on 24th May, 2010;
(v) Appellants’ terms of office having expired by effluxion of time on 24th May, 2010 they cannot return back to the various offices from which they were removed/sacked;
(vi) Since the Appellants terms of office have expired, there is no res to be preserved or protected by this appeal;
(vii) Whatever decision which the Court is to give on the main appeal will be of no beneficial value as the Appellants’ terms of office have expired;
(viii) The Court has no jurisdiction or competence to determine an academic issue/question or matter;
(ix) Appellants’ by their own admission have shown that their terms of office have expired.
FURTHER TAKE NOTICE that, at the hearing of this application, Respondents/Applicants shall rely on the record of the Honourable Court as well as all processes so far filed in this appeal.”
The Application was supported by a twenty paragraph affidavit deposed to by one Ayandipo Olaiya, a legal practitioner in the law firm of Lateef O. Fagbemi & Co. one of the firms of Solicitors representing the 1st – 13th Respondents/Applicants. There was also filed on 21/6/10 a counter affidavit of 24 paragraphs in opposition to the application, deposed to by one Hon. Bimbo Adepoju, one of the Appellants (11th Appellant).
There is also a further affidavit filed on 22/6/10, deposed to by one Saheed Raji, a legal Secretary in the law firm of R. A. Ogunwole (SAN) & Co., Solicitors to the 1st – 13th Respondents.
The learned counsel to the 14th Respondent, L. A. Ganiyu Esq., Deputy Director Public Prosecutions did not oppose the Application. The 15th and 16th Respondents even though served with the hearing Notice and the Motion were not represented by counsel and did not file any process in respect of the application for striking out of the appeal.
The application was taken first after which the appeal was argued, on agreement of counsel on both sides.
In moving the application, the learned senior counsel Pastor R. A. Ogunwole (SAN) relied on the records of the court and all the processes filed in the appeal, all the paragraphs of the affidavit in support of the application and the exhibits annexed thereto, as well as his further affidavit of eleven (11) paragraphs. Reference was made to Ground 2 of Exhibit ‘A’ (the Notice of Appeal) as well as paragraphs 6 and 7 of Exhibit ‘B’ (the Appellants’ counter affidavit to the application for stay of proceedings before this court). It was submitted that from these Exhibits, the Appellants have shown that their term of office has expired.
Further, that the complaint of the Appellants is the nullification of their election without being made part of the proceedings and the challenge of the trial court’s refusal to set aside the decision nullifying their election as Chairmen of the 33 Local Governments in Oyo State. It was argued that the Appellants are not Chairmen of the affected Local Governments as claimed and cannot appeal to set aside the decision of the trial court nullifying the election to the 33 Local Governments of Oyo State.
The crux of the appeal is the challenge of the lawfulness of the decision of the trial court nullifying their election and its refusal to set aside the decision.
It was submitted that under Section 240 of the 1999 Constitution the jurisdiction of this court is to determine live issues and not determine an academic issue. It was the contention of the learned senior counsel that the Appellants cannot return to the offices they were removed from whichever way the decision goes in the main appeal before this court since their tenure of office expired on 24th May, 2010. It was argued that, there is no live issue in the appeal; reliance was placed on the case of EMMA AMANCHUKWU VS. F.R.N. (2009) 8 NWLR (PART 1144) 475, AT 482 C – E.
In further argument, reference was made to paragraph 4 of the Counter Affidavit dated 21/6/10 where the Appellants/Respondents denied Exhibits ‘A’ and ‘B’ attached to the supporting affidavit and that paragraphs 8 – 18 of the counter affidavit only made reference to lawful steps taken by the Applicants under the Rules. The learned senior counsel referred to their further affidavit where the allegation of trying to frustrate the appeal was denied. We were urged to strike out the appeal as there is no live issue to be determined by this court.
In response, the learned senior counsel, Chief Akin Olujinmi (SAN) urged us to dismiss the application for lacking in merit. In opposing the application, filed a 24 paragraph counter affidavit with one Exhibit attached, Exhibit BA1 (a copy of the order striking out the Respondents/Applicants’ Motion in the Supreme Court), reliance was placed on especially paragraphs 6 – 22 of the counter affidavit, to support their allegation that the Applicants by their application to strike out the appeal are trying to frustrate the hearing of the main appeal on the merits, reference was made to paragraphs 12 – 14 of the counter affidavit. As regards the Respondents’ deposition that the term of office expired on 24/5/10, it was submitted, reflects the normal cause of events but, that by the interruption of the term, which prevented the Appellants from running their three (3) year term, their tenure in law has not expired. It was the contention of the learned senior counsel that if judgment is entered in favour of the Appellants their normal three year term would then start to run from the date of judgment. The learned senior counsel argued that he filed a similar application which was refused in ADEOGUN VS. FASHOGBON (2008) 17 NWLR (1115) 149 AT 168 F – G AND 174 G – H. Reference was also made to the case of AMAECHI V. INEC (1008) 5 NWLR (1080) 227 AT 324 B – C AND 367 D – H AND 368 D-F.
It was the submission of the learned senior counsel that if the reliefs sought in the appeal are granted, the effect would be to restore the Appellants to their offices. It was argued that we could grant the relief of restoring the Appellants to their offices even if not sought for, as long as the Appellants are entitled to it if they succeed, which would do justice to the case in line with the decision in AMAECHI’S CASE (SUPRA).
It was argued that the application lacks merit, and that this court has the requisite jurisdiction to determine the merit of the appeal, that it is not academic and we should dismiss the application.
The learned counsel to the 14th Respondent did not oppose the application and did not file any process.
The 15th – 16th Respondents who were served with the hearing notice, neither filed any process nor appeared in court when this matter was heard, therefore had nothing to urge the court.
In arguing the main appeal, the learned Senior Counsel Chief Akin Olujinmi (SAN) adopted and relied on the Appellants’ amended brief of argument filed on )18/9/08 and a reply to the 14th Respondent’s brief dated and filed on 14/6/40 in urging us to allow the appeal. In the said brief, three (3) issues were raised for determination by this court, they are:-
“(i) Whether the lower court was right in refusing to join the applicants to this action notwithstanding that they were beneficiaries of the exercise of the power of Oyo State Independent Electoral Commission (OSIEC) to conduct election into Local Government Councils in Oyo State and which power is being challenged in this action.
(ii) Whether the lower court was right in refusing to set aside its order made on 23rd November, 2007 setting aside the election conducted into Local Government Councils of Oyo State on 24th May, 2007.
(iii) Whether a trial court is without power to disallow a Plaintiff to discontinue or withdraw his action on a proper objection by a defendant or any other party entitled to object.”
In amplification of the issues raised in the Appellants’ brief of argument, the learned Senior Counsel submitted that the crux of the appeal is the grant of the order of the lower court pursuant to an application made by 1st – 13th Respondents which set aside the election of the Appellants as Chairmen of their various Local Governments. The application was on the basis that the election which brought the Appellants into office was conducted in breach of a subsisting order of injunction. It was argued that the Appellants, the beneficiaries of the election conducted by the 14th Respondent were not put on Notice despite the fact that the Appellants would be affected by the order sought. It was argued that the Appellants only became aware of the order after it had been granted, thereafter applied to be joined in the action and for an order to set aside the decision of the lower court which nullified their election. Further, that a person affected by an order is entitled to apply to have it set aside, it would then not be necessary to appeal against such an order, reference was made to page 9, paragraph 2.7 and page 10 paragraph 1 of their amended brief of argument and the case of IGE VS. OLUNLOYO (1984) ALL NLR 150 AT 176 – 177. It was contended that the proper thing to have done would have been to make an order for committal against the 14th Respondent rather than disenfranchise the electorate by setting aside the election.
In further amplification of paragraph 3.5, page 11 of their brief of argument the following cases were cited and relied upon: SHELL PETROLEUM DEV. COMPANY NIGERIA LTD. VS. LAWSON JACK (1998) 4 NWLR (545) 249 AT 269 D – E: UMUWANADU V. A – G ANAMBRA STATE (2000) 14 NWLR (PART 686) 87 AT 985. Also page 7 paragraph 4.9(i) of their brief of argument and the case of CARREM & ANOR. VS. AKINLASE & ORS. (2008) 10 SC 1 AT 14, on factors to be considered in an application to be joined in a pending suit.
With reference to page 8 of the brief of argument of the 1st – 13th Respondents, it was submitted that this appeal is not an application to preserve the res as made out by the 1st – 13th Respondents on relying on the case Of NDOMA EGBA V. CHUKWUOGOR (2004) 6 NWLR (PART 869) PAGE 382 AT 423 in arguing that only a party joined in an action can ask for a relief in the case, page 8 of the 1st – 13th Respondents’ brief. It was argued that this contention is wrong and was not argued in the lower court, therefore, the 1st – 13th Respondents would require the leave of this court to raise it as & new point, not having cross appealed or filed a Respondents’ Notice.
It was the argument of the learned senior counsel that this issue was not decided upon by the lower court, therefore that the case of NDOMA EGBA (supra ) is inapplicable in the con of this appeal. It was further submitted that the case of EZEGBU V. F.A.T.B. LTD. (1992) 1 NWLR (PART 220) 699 AT 736 relied upon by the 1st – 13th Respondents was cited out of con, in that the case deals with the disciplinary power of the court, which it can invoke to redress any act done by a party in respect of a pending proceeding, whereas the issue in the present case is whether the power was properly exercised in the circumstances of this case. It was also argued that the case of OBI V. INEC & ORS. (2007) 11 NWLR (PART 1046) PAGE 565 AT PAGE 645 does not apply, in that the parties in the above case were heard. Learned Senior Counsel also adopted and relied on all the arguments in the reply to the 14th Respondent’s amended brief of argument dated and filed on 14/6/10 and urged us to allow the appeal.
In response, the learned Senior Counsel Pastor R. A. Ogunwole (SAN) adopted and relied on the 1st – 13th Respondents’ brief of argument dated 4/2/10, filed on 5/2/10, deemed as properly filed on 22/6/10. On their part in their joint brief of argument distilled two (2) issues arising for determination in this appeal, as follows:-
“(i) Whether from the totality of the case at the lower Court, the learned trial judge was right in refusing the application of the Appellants herein for joinder and setting aside of the order of 23rd November, 2007?
(ii) Whether the learned trial judge was wrong in allowing the Respondents to withdraw their action upon the filing of the Notice of Discontinuance.”
Premised on the above issues, it was submitted that the issue of joinder being raised in this appeal does not assist the Appellants’ case in any way. Reference was made to the reliefs sought by the 1st – 13th Respondents (the original plaintiffs) against the 14th Respondent, page 3 of the records, earlier reproduced in this judgment for ease of reference. As at the time these reliefs were sought the Appellants were non existent.
It was submitted that the 1st – 13th Respondents as plaintiffs in that case had filed an application to discontinue their action, relying on the principle in the case of RODRIDGUES V. PUBLIC TRUSTEES & ORS. (1977) 4 SC 29 AT 36 – 38: it was argued that the court cannot continue the case and must exercise one of the options as laid down in the above decision.
Further, that even though the applications for discontinuance and joinder were taken together, the former was filed first. On the issue of disobedience of the court order, it was argued that EZEGBU’S CASE (SUPRA) is applicable, whereas in IGE’S CASE (SUPRA) they were not served with the order of injunction before the election was conducted. The learned Senior Counsel emphasized that NDOMA EGBA’S CASE (SUPRA) is relevant in that a non-party cannot ask for a relief in an action.
It was submitted that the issues flow from the facts and circumstances of this case and no leave is required to raise it on appeal, as it is not a new point of law; reference was made to pages 186 – 193 of the records, the Appellants’ application. It was the contention of the learned Senior Counsel that the capacity in which the Appellants sought to be joined was not created and they would have been better off by filing a new action. We were urged to dismiss the appeal for lacking in merit.
Mr. L. A. Ganiyu, the learned counsel to the 14th Respondent adopted and relied on his brief of argument dated and filed on 4/3/10, deemed as properly filed on 7/6/10. In the said brief of argument, the following issues were raised for determination, they are:-
“(i) Whether, from all the materials before the Court, the lower court was right in refusing to join the’ Appellants. (Grounds 1 and 2).
(ii) Whether the learned trial judge was right in refusing to set aside his earlier Ruling when the Appellants were not parties to the action.
(iii) Whether the learned trial judge has rightly allowed the Respondents to discontinue their action.”
Learned counsel urged this court to discountenance the argument in respect of the preliminary objection filed on 7/7/08 on behalf of the 14th Respondent which had been earlier argued and ruled upon by this court, that is paragraphs 3.0 to 3.04 (pages 5 – 7 of the brief of argument), same was withdrawn and struck out when the appeal was argued. We were urged to dismiss the appeal.
In his reply, the learned senior counsel on behalf of the 1st – 13th Respondents submitted that the reliefs at page 3 of the record in the trial court, challenged the power of the 14th Respondent to conduct the Local Government Election, that brought the Appellants into office, it was argued that the relief affects the Appellants.
It is trite and the practice of our courts that once there is an application preceding the hearing of an appeal, same has to be looked into and resolved first before going into the substantive matter if need be, depending of course, on the outcome of the application, more especially as in the present case where same touches on the jurisdiction of this Court to hear the appeal. The present application would be likened to an objection to the hearing of the substantive appeal, counsel on both sides agreed at the hearing that the application be taken first. In the case of NEPA V. ANGO (2001) 17 WRN 142 at 154 (2001) 15 NWLR Pt. 737 629 at 646. on the purpose of taking a preliminary issue/objection first, his Lordship, Salami J.C.A. had this to say:-
“The purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which, if it succeeds, would put an end to the appeal.”
The above holding is in line with the apex court’s decision in the case Of THE STATE V. ONAGORUWA (1992) 2 NWLR (Pt. 221) Page 33 where it held thus:-
“Where an objection is raised as to the competence of an appeal, the jurisdiction of the court to entertain it becomes an issue. It becomes therefore fundamental for the court to deal with it first before deciding on the next course of action.” See also LEKWOT V. JUDICIAL TRIBUNAL (19931 2 NWLR (Pt. 276) 410 at 442, AMADASUN V. 1JMR (2007) 13 NWLR (Pt. M51) P. 214 at P. 226, and also a recent decision of this Court and Division in OLASEBIKAN ABBAS & ANOR V. KAMIL TOPE OYEDELE IN CA/I/EPT/HA/85/08 delivered on 8th July, 2010 (unreported). Timeously dealing with any issue touching on the jurisdiction of the court is necessary as it goes to the root of the matter, that is, the Court’s legal capacity to make such orders as sought in the reliefs. See BARCLAYS BANK (NIG.) LTD. V. CBN. (1976) 6 SC 175, OKAFOR V. A-G. ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659 and OLANIYI V. AROYEHUN (1991) 5 NWLR (Pt 194) 652. For these reasons, it is necessary to determine the application first.
The crux of the 1st – 13th Respondents/Applicants’ application is that the jurisdiction of this Court is to determine live issues and not an academic issue, since the appellants cannot return to their offices as Local Government Chairmen of their various Councils whichever way the appeal is decided by this Court, the tenure of office as Chairmen having expired on 24th May, 2010 and that there is no live issue for this court to determine.
The learned senior counsel for the 1st – 13th Respondents/Applicants had urged us to utilize the records of court and process filed in this appeal to enable us arrive at a decision. In a recent decision of this Court and division, SULAIMAN V. SWORD, SWEET & CONFECTIONERY (NIG.) LTD. (2010) 4 WRN P. 84 at 25, I did say that:
“It is trite that the court is entitled to and free to look into its record for materials and evidence in taking a decision.”
It is clear therefore and in agreement with learned senior counsel that the law permits us to utilize our records for materials that would assist the court in arriving at a decision.
As argued by the learned senior counsel on both sides and from the records of this Court the crux of the Appellants/Respondents complaint leading to the main appeal is the nullification of their election of 24/5/07 without their being part of the proceedings and the refusal of the trial court to set aside the nullification order made on 23/11/07.
The sequence of events is important for better appreciation of the present application and the main appeal, earlier highlighted in this judgment short of being repetitive I will recall/recapitulate. The Originating Summons taken out by the 1st to 13th Respondents herein was pending when the order of 8th May, 2007 was made by Yerima, J. restraining the conduct of any Local Government elections on 12th May, 2007 or thereafter pending the determination of the Originating Summons. This order was subsisting when the election was conducted on 24th May, 2007 following which, on application the learned judge, P. O. Ige, J. in his Ruling of 23rd November, 2007 set aside the conduct of the election which brought into office the Appellants/Respondents. The learned trial judge on 23/11/07 made the following order, P. 179 of the printed records:-
“Therefore, the Local Government Election conducted into the 33 Local Government Areas of Oyo State by the 1st Respondent Oyo State Independent Electoral Commission (OYSIEC), on 24th day of May, 2007, is hereby declared illegal, null and void because the said election was conducted in flagrant disobedience and deliberate breach of the order of this Court made on 8th May, 2007 restraining the 1st Respondent from conducting any Local Government Elections on the 12th of May, 2007 or thereafter pending the hearing and determination of the Originating Summons.
In the result I hereby order that the Local Government Election conducted by the 1st Respondent on 24th May, 2007 in breach of the order of this Honourable Court made on 8th day of May, 2007 shall be and the same is hereby set aside.”
I have perused the records, there is no appeal against the above order but rather an application by the appellants herein as Applicants/Parties seeking to be joined, seeking the orders earlier reproduced in this Judgment, Page 188 of the printed records, that is that the 1st – 15th applicants be joined in the suit and an order setting aside the above order of the court of 23/11/07. The application is dated 27/11/07. On the same date, there was also an application to discontinue the action by the then Plaintiffs/Applicants now Respondents/Applicants in the present application. The learned trial judge consolidated the applications and in a considered Ruling delivered on 11th December, 2007, Pages 289-330, at Page 330 made the following orders:-
“The application seeking to set aside the ruling of this Court delivered on 23/11/07 is hereby refused and dismissed. The plaintiffs are hereby granted leave to discontinue their Originating Summons in this suit against the three Defendants on the Originating Summons. The substantive action herein is hereby struck out.”
It is against the orders made in the Ruling of 11/12/07 above that has given rise to the substantive appeal; the application now under consideration is an offshoot of the appeal. The reliefs sought in the main appeal are as follows:-
“(i) AN ORDER setting aside the dismissal of the Appellants/Parties seeking to be joined motion dated and filed on 27/11/07.
(ii) AN ORDER granting the reliefs contained in the motion dated 27/11/07 filed by the Applicants/Parties seeking to be joined/Appellants.
(iii) AN ORDER setting aside the order of the trial court striking out Suit No. 1/269/07.”
All the prayers sought in this appeal centres around the setting aside of the election conducted on 24/5/07. Prayer (i) seeks to set aside the dismissal of the Appellants/Parties seeking to be joined motion dated and filed on 27/11/07, the Appellants in the said application sought to be joined as parties in the substantive suit, being the elected Chairmen, beneficiaries of the election that was set aside. In prayer (ii) seeks the grant of the same application of 27/11/07 i.e. the reliefs therein, of joining the 1st to 15th Applicants/Parties to be joined in the suit and setting aside the order of Court of 23/11/07. Prayer (iii) sought the setting aside of the striking out of the substantive suit No.I/269/07 which was discontinued on 27/11/07.
It is therefore clear that from the application of 27/11/07 and the main appeal the main grouse of the appellants is the setting aside of the election of 24/5/07.
The learned senior counsel Pastor R. A. Ogunwole (SAN) has argued that there is no live issue for this Court to determine and that the appeal be struck out. The application urging us to strike out the appeal is dated 12/6/10 filed on 18/6/10. The question is: As at the date of filing the application which was moved along with the hearing of the substantive appeal on 22/6/10, was there a live issue for this Court to determine, which would confer jurisdiction on this Court to do so?
The Appellants’ application of 27/11/07 and the present appeal centre around their election as chairmen of their various Local Government Council as stated above, which was set aside by the trial judge on 23/11/07. Without going into the merit of the appeal and the reliefs sought at this stage, it is necessary to examine the circumstances surroundings the office to which the Appellants/Respondents seek to return to. From the grounds of the application under consideration, the amended Notice of appeal, various affidavits filed by the Appellants and other processes that form part of the records of court, one thing is clear, the election (that, was set aside) took place on 24/5/07 with a definite term of office of three years. The term of office is not in dispute and has been acknowledged by the Appellants/Respondents. Ground 2 of the Appellants’ Amended Notice of appeal dated 18/9/08, deemed filed on 29/6/09, Exhibit “A” is attached to the application, Ground 2 with the particulars reads:-
“2. The Learned Trial Judge erred in law when he refused to join the 1st – 15th Applicants as intervenes in the suit despite all the necessary materials placed before the Court.
PARTICULARS
(i) The Subject matter of the suit is the conduct of election into 33 Local Government Councils in Oyo State.
(ii) By the affidavit evidence placed before the Court, the applicants/parties seeking to be joined were elected Chairmen of the 33 Local Governments in Oyo State on 24/05/07.
(iii) The Court on 23/11/2007 without hearing the applicants/parties seeking to be joined set aside the election of 24/4/2007 which brought in the Applicants/Parties seeking to be joined to office.
(iv) The tenure of office of the Applicants commenced on 25/05/2007 and will end on 24/05/2010. (Underlined for emphasis.)
Similarly, Exhibit ‘B’ attached to the affidavit in support of the present application is a counter affidavit dated and filed on 12/1/10 by the Appellants/Respondents in an earlier application for stay of proceedings before this Court, paragraphs 6, 7, 8 and 15 read:-
“6. That the Governor of Oyo State Senator Rasheed Adewolu Ladoja on 25th May 2007 duly swore us in as Executive Chairmen of our various Local Government Councils and consequently assumed office and performing our functions as such.
7. That our term began to run from 25th May 2007 and to end on 24th May 2010…
8. That this appeal arose from the decision of the lower court in Suit No. 1/269/2007, made on 23rd November, 2007 setting aside our election as Chairmen of the 33 Local Government Councils in Oyo State…
15- That the Appellants’ term is fast running out with less than four months to go.”
(Underlined for emphasis)
It is clear from the Notice of Appeal and the above paragraphs that the appellants acknowledged that the term of office of the elected Chairmen would terminate on 24/5/10. As at 12/1/10 when the above affidavit was filed, the Appellants made it clear that from 12/1/10 they had “less than four months to go. Now the four months have lapsed, precisely on 24/5/07. The big question that has arisen is: Can the Appellants/Respondents return to their offices, assuming the main appeal is decided in their favour? In confirmation of the tenure of the office of the Chairmen of the various local governments, the Respondents/Applicants in Paragraphs 5, 6, 7 and 8 deposed as follows:
“5. That I know as a fact that Appellants/Respondents were elected as Chairmen of the 33 Local Government Areas of Oyo State at an election conducted on 24th day of May, 2007.
6. That I know as a fact that the Appellants were sworn in as elected chairmen of the 33 Local Government Areas of Oyo State on 25th May, 2007 for a period or term of 3 years which expired on 24th May, 2010.
7. That I know as a fact that as at the time of the election of 24th May, 2007, there was a subsisting court order of injunction of the Oyo State High Court restraining the Oyo State Independent Electoral Commission from conducting any Local Government election in Oyo State.
8. That in breach of the order of Oyo State High Court, referred to in Paragraph (7) above, Oyo State Independent Electoral Commission conducted the election of 24th May, 2007 based on which appellants were returned and sworn in as chairmen of the 33 Local Government Areas of Oyo State for a term of 3 years.”
From all of the above depositions, the Amended Notice of Appeal, affidavits, counter affidavit and all other processes in the court’s records, the election took place on 24/5/07 and following the swearing in of the Chairmen the term of office was to end and ended on 24th May 2010.
The setting aside of the election on 23/11/07 did not halt the term to await all the litigation challenging the holding of the election and those challenging the setting aside of same amongst other applications. If there is any provision of law to the contrary in the present situation, it was not brought to our attention.
The cause of action in the present case accrued when the election was held on 24/5/07 and elected Chairmen emerged despite the subsisting order of injunction not to conduct the said election. The term of office of the 33 elected Chairmen began to run on 24/5/07, the fact that the election was subsequently set aside on 23/11/07 did not prevent and/or stop the time or term from running against the Appellants who were challenging the setting aside of the election. Time having continued to run all the while various applications were being made by both parties since the election and its setting aside, this Court is not in a position to extend it or compute it differently as urged by the learned senior counsel to the Appellants.
The learned senior counsel, Chief Akin Olujinmi (SAN) had argued that the interruption of the three year term prevented the Appellants from running their three year term and that their tenure had not expired. It was contended that if judgment is entered in favour of the Appellants that their term would then run from the date of judgment. I am afraid this is contrary to the available processes filed by the appellants, their amended notice of appeal and various affidavits earlier reproduced in this judgment, which form part of the records of appeal, not discountenanced or expunged from the records. This argument with respect is not tenable. If this is allowed then what happens to the term already served between 24/5/07 and 23/11/07 and the period between 23/11/07 till the date of the judgment? I am of the view that a definite term of office of three years in this case cannot be computed piece meal whether the interruption of same was right or wrong. The case of AMAECHI V. INEC (supra) cited and relied upon by the learned senior counsel is not applicable here, in AMAECHI v. CASE there was also a definite term of office from the date of swearing in into the office as Governor, the term of office had also not expired. The time was computed from when oath of office was taken and in fact supports the Respondents’ case; ADEOGUN V. FASHOGBON (supra) is also not applicable.
From the Notice of appeal and the affidavits of the appellants, as rightly argued by the learned senior counsel to the respondents/applicants, the Appellants admitted on record that their term of office ended on 24/5/10. The resultant effect is that their right to challenge the decision of the trial court concerning their election as chairmen of the 33 Local Government Areas of Oyo State has been overtaken by events. The right of the Appellants to their various offices as Chairmen of their various Local Government Areas has become extinct and the appellants are no longer in a position to lay claim to it.
In course of argument and as averred in the counter affidavit of the Appellants/Respondents paragraphs 8-18, that the Respondents/Applicants adopted all manner of delay tactics to delay and/or frustrate the hearing of the appeal on its merit (paragraph 20 of the counter affidavit). It is my observation that all the applications mentioned are lawful steps taken by the applicants, permitted by law and within the rules and procedure of this Court and the Apex Court. Exhibit BA1 attached to the Counter Affidavit therefore serves no purpose, paragraph 6 of the applicants’ further affidavit explains their absence from court on 4/5/10, non-receipt of the hearing Notice. I would also not blame the non-disposal of this matter before now on the Respondents/Applicants as deposed in paragraph 6 of the Counter Affidavit as both parties in the past have filed one application or the other; the Amended Notice of Appeal was only regularized on 29th June, 2009.
The 1st – 13th Appellants/Respondents’ denial of Exhibit ‘B’ attached to the affidavit in support of this application is of no moment as same forms part of our records utilized in an earlier application before this Court. Similarly, the Appellants/Respondents denial of paragraphs 4, 6, 7, 8, 13, 16, 17, 18, 19 and 20 of the Respondents’ affidavit in their paragraph 4 of their counter affidavit is also of no moment as there is no dispute in respect of the above averments and they are not in a position to declare the averments as false, for instance the duration of the term of office, the date the election was conducted, that there was a pending injunction when the election took place, that the election was conducted in disobedience of the subsisting injunction, the expiration of the term of office amongst others are all contained in the printed records of this Court for the purposes of the application and the main appeal, which the law permits us to utilize as earlier stated in this judgment. A blanket denial of these averments therefore holds no water and I so hold. Averments are not denied for the sake of denial, it will not serve any purpose.
After the application and the main appeal were argued, the learned senior counsel to the Appellants made available an additional authority in respect of his argument the case of EHIRIM V. IMP STATE INDEPENDENT ELECTORAL COMMISSION & ORS (20081 15 NWLR (PART. 1111) 443 at 475 A-C, the facts of the above case are not the same as has arisen here. In the above case a fresh election was ordered, following which the local government chairman’s term of office of three years was held to commence when he took his oath of office, whereas, in the present case, the election was set aside having been held in defiance of a subsisting order of court. EHIRIM’S CASE (SUPRA) is therefore not applicable. In any event in interpreting Section 23(1) of the Local Government Administration Law, this Court in EHIRIM’S CASE (SUPRA) at page 475, paragraphs D – E per Kekere-Ekun, J.C.A. held thus:-
“The provisions of Section 23 of the Local Government Administration Law are quite clear in this regard. By virtue of Subsection (1) thereof the term of office of the Local Government shall be three years from the date the Chairman, Vice Chairman or members of Council take the Oath of Office. There is no provision allowing for the extension of the Chairman’s tenure. This Court is therefore not entitled to read into the law provisions it does not contain. See: LADOJA V. INEC AT 214 LINES 19-32 AND 243 LINES 9-20.”
From the above holding, the decision in EHIRIM’S CASE (SUPRA) supports the case of the Respondents/Applicants in that the Appellants/respondents term of office as Chairmen started to run on 25/5/07 and ended on 24/5/10. It is also noteworthy that the Appellants did not refer us to any law which allows an extension of their tenure of office.
From the reliefs sought by the Appellants/Respondents in the main appeal, even if conceded to the appellants, they cannot benefit from it, the definite term of office of thee (3 ) years from the date of the election, 24/5/07 having expired on 24/5/10, long before the present application was filed on 18/6/10. The resultant effect is that, the application filed by the 1st – 13th Respondents/Applicants is meritorious.
The learned senior counsel to the appellants had urged us to resolve the issues in the substantive appeal on the merits. Having held that there is merit in the application, the resolution of the main appeal, and taking a decision one way or the other would be an academic exercise and a waste of precious judicial time. The Apex Court and this Court discourage such exercise, no matter how well presented and argued, the end result would be of no good to any of the parties, the judgment would not be effectual and it will not affect the position of either of the parties.
It is trite that an essential quality of a suit or an appeal fit to be looked into by a court is that, there should exist between the parties a matter in actual controversy which the court would look into as a live issue. The Courts therefore deal with only live issues and would only look into resolving or determining same. See AKEREDOLU V. AKINREMI (1986) 2 NWLR (PART 25) 710 AT 725.
In the above case it was decided that there cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way. See also the case of TANIMOLA V. SURVEYS AND MAPPING GEODATA LTD. (1995) 6 NWLR (PART 403) 617 AT 626-627: and the old case of SUNLIFE ASSURANCE COMPANY OF CANADA V. JERVIS (1944) A.C. 111 AT 113-114.
In the present case, the reliefs sought by the Appellants have ceased to be of any relevance when the term of office expired on 24/5/10. The Appellants cannot be restored to the offices from which they were removed on the setting aside of the election of 24/5/07 that brought them in. Once again, I say no matter which way our decision goes, it cannot affect the position of the parties in any way, all we would have done, would be an academic exercise. This Court will not and has no time for that.
The main appeal has been argued. Since I have held above that there is no live issue or controversy between the parties for this Court to take a decision on, it no longer attracts a judicial decision, any such decision I reiterate will serve no purpose. See the cases of OGBONNA V. PRESIDENT, F.R.N. (1097) 5 NWLR (PART 504) 281 AT 287-288; A-G., OYO STATE V. FAIRLAKES HOTELS LTD. (1988) 5 NWLR (PART 92) 1: NNSC V. ALHAJI HAMAJODA SABANA LTD. (1988) 2 NWLR (PART 74) 23 and SARAKI V. KOTOYE (1992) 9 NWLR (PART 264) 156.
I cannot end this judgment without a word or two concerning the actions and attitude of litigants when there are pending matters before the Courts, the write ups during the pendency of this appeal are rather disheartening. I would advice learned counsel to advice their clients and interested groups/supporters to desist from frivolous petitions and/or pre empting decisions in the pages of petitions and newspapers; and addressing communications directly to justices handling the cases. Cases are not won or lost through these means. It is better to await the decision of the Courts, this Court (and indeed others) will not and cannot be intimidated and prevented by such frivolous write ups from taking decisions based on the facts and the law to the best of our ability, even if heavens fall, and it will not fall. Justice will continue to be done.
In conclusion and in the prevailing circumstances, having found merit in the application and strengthened by the plethora of judicial authorities to which I am bound, the determination of the issues raised in the main appeal would serve no purpose and cannot be beneficial to any of the parties either way the appeal is decided. On this premise, the appeal ought to and is hereby struck out. Each party is to bear its respective costs.
STANLEY SHENKO ALAGOA, (J.C.A.): I agree.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN. JCA: I have had the benefit of reading in draft the judgment of my learned brother C. N. UWA, JCA, just delivered. I agree entirely with the reasoning and conclusion reached therein. I make the following brief comment in support of the lead judgment and by way of emphasis.
By their amended notice of appeal dated 18/9/2008 the appellants seek the following reliefs:
1. An order setting aside the dismissal of the applicants/Parties seeking to be joined motion dated and filed on 27/11/2007.
2. An order granting the reliefs contained in the motion dated 27/11/2007 filed by the applicants/Parties seeking to be joined/appellants.
3. An order setting aside, the order of the trial court striking out suit No. 1/269/2007.
The appeal is against the ruling of the lower court per P. O. Ige, J. delivered on 11/12/2007 in respect of consolidated applications.
My learned brother in the led judgment has set out the facts and circumstances that gave rise to this appeal. I need not repeat them here.
Suffice it to say that the prayers in the various consolidated applications had one objective in mind to join the appellants as parties in the proceedings before the lower court to enable them challenge the setting aside of their election as Local Government Chairmen, which election was held in defiance of a subsisting order of injunction. It is not in dispute that the appellants were sworn in as Local Government Chairmen of various Local Governments in Oyo State on 24th May, 2007. It is also not in dispute that they were elected for a term of three years and that their tenure of office took effect from the date they took their oath of office and expired on 24th May 2010. (See paragraphs 5, 6, 7, & 15 of Exhibit B attached to the motion on notice filed by the Respondent/Applicant dated 16/5/2010).
The Respondents/applicants contend that the appeal has become an academic exercise since the appellants tenure of office has expired.
The issue to be considered is what would be the effect of a resolution of the appeal in the appellants’ favour. The net result would be that the Appellants’ tenure which commenced on 24th May, 2007 when they took their oath of office would be deemed to run from that date for a period of three years, expiring on 24th May, 2010. Learned Senior Counsel for the Appellants argued that their tenure would commence from the date of the judgment of this Court if successful. He relied on the case of Ehirim Vs. I.S.I.E.C. (2008) 15 NWLR (1111) 443.
The facts of that case were that the appellant was elected Chairman Owerri Municipal Local Government in 27/3/2004. He was duly sworn into office on 13/4/07. Following a challenge to his election before the Local Government Election Tribunal, the Tribunal nullified his election and ordered fresh elections. An appeal against the nullification and order for fresh elections was unsuccessful. The fresh elections were held on 18/6/05 and the appellant again won, and was duly sworn into office on 24/6/05. In October 2006 the 1st Respondent advertised a timetable for the conduct of elections in February, 2007 for the position of Chairman and Councilors of the 27 Local Government Councils in the State. The appellant took out an originating summons at the High Court seeking a declaration that his tenure as Chairman subsisted till 29th June, 2008.
He sought various injunctive reliefs. Notwithstanding the pending processes before the court the Appellant was removed from office on 13/4/07 on the ground that his tenure had expired. His tenure had been calculated from the date he took his oath of office in respect of the first election, which was set aside by the Tribunal.
On appeal, this court held that the tenure of office began to run from the date the Appellant took his oath of office in respect of the fresh election held on 18/6/05 and not from the date of the oath of office sworn to in respect of the election that was nullified.
It is not correct as argued by Chief Akin Olujinmi, SAN in his covering letter of 23/6/2010 wherein the case of Ehirim Vs. I.S.I.E.C. (supra) was cited that this court held that a Local Government Chairman whose election is set aside or nullified, would, if he wins on appeal, begin a fresh term of three years from the date of judgment of the appellate court. In Ehirim’s case, the Appellant was sworn into office, having won the fresh election ordered by the Tribunal. In the instant case, the issue of a fresh election and fresh oath of office does not arise. Indeed in that case the appellant urged the court, in calculating his three years tenure, to exclude the period from 13/4/07 when he was illegally removed from office to the date when he was restored to office. In interpreting section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 this Court held that the term of office of the Local Government shall be three years from the date the Chairman, Vice Chairman or; members of council take the oath of office. The court held further that there is no provision in allowing for the extension of the Chairman’s tenure. (See page 475 D-E supra).
The same reasoning applies in this case. The appellants had taken their oath of office. Therefore even if the appeal were to be determined in their favour the need for a fresh oath of office would not arise. Their tenure expired by effluxion of time on 24th May 2010. It would therefore be an academy exercise to determine the appeal on its merits as a determination in favour of either party would confer no benefit on them.
It is for these and the more detailed reasons ably adduced in the lead judgment that I also strike out the appeal. I abide by the order as to costs.
Appearances
Chief Akin Olujinmi (SAN)
Ajibola Bashiru
Ibrahim LawalFor Appellant
AND
Pastor R. A. Ogunwole (SAN)
Segun Adebayo Esq.,
A. K. Akinwunmi (Miss),
B. Y. Dada (Miss)
O. O. Adedeji (Miss).
L. A. Ganiyu, Deputy Director Public Prosecutions, Oyo State Ministry of Justice for the 14th Respondent.
15th and 16th Respondents served with hearing Notice on 18/6/10 absent.For Respondent
