Is the Judiciary Complicit in the Osun State Local Govt Debacle?

By Prof Mike Ozekhome SAN

INTRODUCTION

In a landmark decision in ATTORNEY GENERAL OF THE FEDERATION V. ATTORNEY GENERAL OF ABIA STATE & ORS (2024) LPELR-62576(SC) last year, the Supreme Court gave the local government system full autonomy, warning governors to keep their political fingers off Local Government Councils (LGCs). The legal status of the LGCs in Osun State has however been the subject of intense political and judicial debate following the 2022 local government elections. The matter has seen multiple judicial determinations, culminating in two critical Federal High Court judgements; one obtained by the People’s Democratic Party (PDP) and the other by the Action Peoples Party (APP). While both judgements invalidated the elections conducted by the Osun State Independent Electoral Commission (OSSIEC), the judgement secured by APP remains the extant, binding, and subsisting legal authority, as no superior court has set it aside.

DISTORTION OF THE ESSENCE OF THE JUDGMENTS

In recent times, misinterpretations and misinformation have sought to distort the legal position, with some claiming that a recent Court of Appeal judgement reinstated the sacked local government officials. However, a critical examination of the Court of Appeal’s latest decision shows that it merely struck out the PDP’s appeal on the ground that no cause of action had arisen at the time of its filing. The position of the law in this regard is that when judgements are not to the substance of a case, they do not change the rights and liabilities of parties. See the case of IGBUNBOR V. AFOLABI (2001) FWLR (Pt. 59) 1284 at 165. Importantly, the Court of Appeal did not nullify or overturn the subsisting Federal High Court judgement granted in favour of APP, which therefore remains the authoritative and binding authority affecting the rights of the parties.

It is therefore meet that we clarify the foggy situation by analyzing the relevant judgements, applicable laws, and legal principles that govern the status of the 2022 Osun local government elections. This analysis will demonstrate that the local government councils were legally dissolved and that no subsequent judicial pronouncement had restored them. It will also demonstrate that the latest foiled invasion of many LGCs across Osun State by some APC persons is unconstitutional, illegal and amounted to self-help.

THE 2022 OSUN LOCAL GOVERNMENT ELECTIONS HALLMARKED LEGAL CHALLENGES

The dispute over the Osun local government elections actually commenced in 2022, following the conduct of the elections by OSSIEC. The elections were challenged in court on the basis that OSSIEC had failed to comply with the mandatory provisions of the Electoral Act, 2022, specifically sections 28, 29, 32, 98, and 150 thereof.

The People’s Democratic Party (PDP) and the Action Peoples Party (APP) had separately instituted legal actions at the Federal High Court, seeking to have the elections nullified. The basis of these suits was OSSIEC’s alleged non-compliance with statutory provisions and constitutional violations.

THE PDP SUIT IN BRIEF

In the case of PDP, it was alleged that OSSIEC was planning to conduct local government election in Osun State in violation of the provisions of the Electoral Act, 2022, specifically sections 28, 29, 30 and 150 thereof. PDP also called on the Federal High Court to apply the decision of the Supreme Court in OSSIEC & ANOR V. ACTION CONGRESS & ORS (2010) LLJR-SC (delivered in 2010), to the effect that any notice of a local government election which is not in compliance with the Electoral Act is null and void. The law in existence as at the time of filing the said suit was the OSSIEC Law, 2015 (as amended).

While the suit was pending, the Osun State House of Assembly repealed the existing 2015 amended OSSIEC Law, and enacted the new OSSIEC Law, 2022, which prescribed 360 days’ notice for election, same as contained in the Electoral Act, 2022. OSSIEC then, during the pendency of the action, published a notice of election prescribing only 60 days as against the 360 days specified by the OSSIEC Law and the Electoral Act.

PDP, then, by an order of court, amended its processes to bring in the new development. OSSIEC still went ahead with the conduct of the election and the All Progressives Congress (APC) participated despite the pendency of the suit at the Federal High Court. It was after the election that the APC and some of its candidates brought a joinder application to the suit in a representative capacity, for all its candidates who reportedly participated at the election. The Federal High Court granted their application for joinder and the whole court processes were amended to reflect all the parties and issues. On 25th November, 2022, the Federal High Court delivered a judgment in the suit, nullifying the election and consequentially sacking all the purported elected officials.

SUMMARY OF THE APP SUIT

The APP’s suit was similar to the PDP suit in all respects; the only difference being that the APP’s suit was filed after the enactment of the OSSIEC Law 2022 and after the publication of the 60-day election notice by OSSIEC, as against 360 days provided by the OSSIEC Law and the Electoral Act.

While both parties obtained favourable judgements, the judgement in the APP suit has become the legally binding decision, as APC’s appeal against it was dismissed by the Court of Appeal on the 13th of January, 2025, for want of diligent prosecution. This dismissal rendered the APP judgement the final and only subsisting authority on the matter.

JUDICIAL INTERVENTION ON THE VALIDITY OF THE ELECTIONS

A. The FHC Judgement in APP v. OSIEC (Suit No. FHC/OS/CS/75/2022)

In this case filed by the Action Peoples Party (APP), the Federal High Court (FHC), delivered a landmark judgement that rendered the October 15, 2022, Osun Statw local government elections null and void. The court held that the elections violated the Electoral Act, 2022, and were also inconsistent with the 1999 Nigerian Constitution.

The FHC in the APP case held as follows:

– “The election into local government councils across Osun State held on the 15th of October 2022, pursuant to the notice of election issued on the 15th of August 2022, is hereby declared unconstitutional, invalid, null, and void for violation of the Constitution and breach of Sections 28, 29, 32, 98, and 150 of the Electoral Act, 2022.”

– “All persons or individuals occupying offices in the state local government councils by virtue of the said election are accordingly sacked from holding such offices.”

– “Sections 25 and 26 of the Osun State Independent Electoral Commission Law, 2022, having been enacted in contravention of Paragraph 12 of Part II of the Second Schedule to the Constitution and being inconsistent with Sections 29 and 32 of the Electoral Act, 2022, are hereby struck down.”

I agree with the decision of the FHC because it is trite law that any law that is inconsistent with the Constitution is null and void and must be struck down because the Constitution is the grundnorm of the land (see section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 [as amended]). The Supreme Court, Per JAURO, JSC, pronounced on the supremacy of the Constitution in NPF & ORS V POLICE SERVICE COMMISSION (2023) LPELR-60782(SC) (P.154, paras. A-F), thus:

“It is equally imperative to restate the elementary principle of the supremacy of the Constitution. The Constitution of the Federal Republic of Nigeria is the grundnorm, the basic law of the land. It stands head and shoulders above any other law or instrument enacted by the National Assembly, State House of Assembly or any other person or authority empowered in that regard. It is from the Constitution that every other enactment or instrument derive their validity and binding force. The doctrine of the Supremacy of the Nigerian Constitution is traceable to Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), which provides thus: “1. Supremacy of the Constitution (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Consequently, as was decided by the Supreme Court in the case of PEENOK INVESTMENTS LIMITED V HOTEL PRESIDENTIAL (1982) 12 SC 1, there is undoubted power in the Court to declare null and void any law that conflicts with the provisions of the Constitution”. See also the cases of HON. INAJOKU & ORS V. ADELEKE & ORS (2007) ALL FWLR; OLAFISOYE V. FEDERAL REPUBLIC OF NIGERIA (2004) ALL FWLR 1106; AINABEBHOLO V. EDO STATE UNIVERSITY WORKERS FARMERS MULTIPURPOSE COOPERATIVE SOCIETY LTD (2007) ALL FWLR 712; PDP v. EDEDE & ANOR (2022) LPELR-57480(CA); PRESIDENT OF THE FRN & ORS v. ISA & ORS (2015) LPELR-25981(CA); and, AG FEDERATION & ORS v. ABUBAKAR & ORS (2007) LPELR-3(SC).

The legal implication of this judgement cannot be overstated. By declaring the 2022 Osun State LG elections unconstitutional, null and void, the court completely erased any legal foundation for the existence of the local government councils elected through that flawed process. The said APP judgement was also a judgement in rem, meaning that it applied to the whole world, all parties and stakeholders, and non-parties alike, irrespective of whether or not they participated in the litigation. In DIKE & ORS V. NZEKA II & ORS (1986) LPELR-945 (SC), the Supreme Court underscored this point most lucidly when it held:

“… A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and the competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum – binding on the whole world – parties as well as non-parties. ….”

See also the cases of OYETOLA & ANOR v. INEC & ORS (2023) LPELR-60392(SC); and, A.G. ABIA STATE & ORS V. A.G. OF THE FEDERATION (2022) LPELR-57010 (SC).

B. The Dismissal of APC’s Subsequent Appeal and the Finality of the APP Judgement

Following the Federal High Court’s judgement, the All Progressives Congress (APC), which had benefited from the October 2022 elections, appealed the judgement in the case filed by APP. However, the Court of Appeal dismissed the appeal on the 13th of January, 2025, for want of diligent prosecution.

The legal implication of that dismissal is that the FHC’s judgement in the APP case remains the extant and binding position of the law. Under section 287(3) of the 1999 Constitution, all authorities and persons within Nigeria, including government institutions, political parties, and law enforcement agencies are obligated to enforce and abide by the said judgement, the appeal arising therefrom having been dismissed.

The current legal position on the status of the Osun State LGCs following these decisions of both the FHC, Oshogbo, and the Court of Appeal is that the earlier judgment of the FHC, which nullified the local government elections conducted on October 15, 2022, remains binding and validly subsisting. The election conducted by OSSIEC in 2022 therefore stands nullified, while all candidates in that election remain sacked. This will continue to be the position of the law until the judgment is set aside by the apex court of the land at the instance of the APP.

C. The PDP Case and the Court of Appeal’s Technical Dismissal of Same

The PDP had in a separate case similar to APP’s, also challenged the legality of the OSSIEC conducted elections. The FHC sitting in Oshogbo had held in its favour. However, upon appeal, the Court of Appeal sitting at Akure struck it out on technical grounds. The court held that the PDP’s case was premature and speculative, having been filed prematurely when notice of the election had not yet been issued at the time of filing. This, in the intermediate Court’s view, deprived the FHC of jurisdiction to entertain the case. It is respectfully submitted that the Court of Appeal was right as is trite that where a matter is instituted when no cause of action has arisen, the doctrine of ripeness applies and such a matter becomes merely speculative and amounts to an academic exercise. This position of the law was upheld in the cases of EDEVIE V. OROHWEDOR & ORS (2022) LPELR-58931 (SC); OGBIMI V. OLOLO & ORS (1993) LPELR-2280(SC); and, UWAZURUONYE v. GOVERNOR OF IMO STATE & ORS (2012) LPELR-20604(SC).

It must be understood that this judgement did not invalidate the decision earlier obtained by APP at the FHC. Rather, it was a purely procedural decision that had no bearing whatsoever on the substantive matter – the validity or invalidity of the Osun State LG elections. The Court of Appeal held as follows:

“As at the time the PDP brought the suit, the cause of action had not arisen because the notice of election had not been issued. The suit was therefore premature.”

This judgement merely struck out the PDP’s appeal without ruling on the legality or otherwise of the elections. Nor were consequential orders made. More significantly, no declaration or consequential orders were made reinstating the ousted local government officials. When no consequential orders are made in a suit, the status quo remains as contained in the judgement appealed against. See the cases of AKINBOBOLA V. PLISSON FISKO (NIG) LTD & ORS (1991) LPELR-343(SC) and FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS V. SAMCHI & ANOR (2018) LPELR-444380(CA). The fundamental issues that could have propelled the Court of Appeal to pronounce on the validity or otherwise of the notice of election and the propriety or otherwise of sacking the APC purported elected council officials who had participated in the said election were never considered by the Court of Appeal as they were treated as academic.

LEGAL IMPLICATIONS: THE INCONTROVERTIBLE DISSOLUTION OF THE LOCAL GOVERNMENT COUNCILS

1. The 2022 Osun State LG Elections Were Null and Void

By virtue of the APP FHC judgement, the 2022 Osun local government elections were clearly unconstitutional and void from the outset. As a matter of law, a void act confers no legal right. When an act is void, it is void for all times and is not required to be set aside. In the case of OYENEYIN & ANOR V. AKINKUGBE & ANOR (2010) LPELR-2875 (SC), the apex court held that:

“In law, a void act is an act which has no legal effect or consequence. It does not confer any legal right or title whatsoever, and it does not impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage.”

In simple terms, one cannot put something upon nothing and expect it to stand. It will collapse. See the cases of LEONARD MACFOY V. UAC LIMITED (1962) AC 152; OKWUOSA V. GOMWALK & ORS (2017) LPELR-41736 (SC); IFEANYI V. OGBA & ORS (2022) LPELR-58787(SC); and, MUSTAPHA & ORS V. ADENOPO & ORS (2020) LPELR-51409(CA). Consequently, no political party, individual or group can lay any valid claim to any Osun State local government offices based on the voided election.

2. All Purported Local Government Officials Remain Legally Removed from Office

Since the FHC in the APP case had expressly sacked all persons occupying the local government positions and no appellate court has reversed that judgement, all the said officials remain legally removed from office. The said judgement remains binding on all parties and the whole world until set aside.

Indeed, the Supreme Court had upheld this position of the law in NGERE & ANOR v. OKURUKET & ORS (2014) LPELR-22883(SC), where it held:

“…The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists, every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal.”

3. The Court of Appeal’s Judgement in the PDP Appeal Did Not Reinstate Anyone

Contrary to the position of the sacked LG officials who had sought to forcibly gate-crash into their offices, the Court of Appeal never reinstated any sacked LG officials. It merely struck out the PDP’s case without considering or commenting on the validity or otherwise of the voided elections. Consequently, any claim that the Court of Appeal reinstated the ousted chairmen is a deliberate distortion of facts and a result to sophistry.

4. The APP Judgement Is Binding on All Parties

Since APC’s appeal against the APP FHC judgement was dismissed by the Court of Appeal, that judgement remains final and binding on all political parties, individuals and institutions in Osun State. See the case of NOEKOER V. EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS (2018) LPELR-44350(SC), where the apex court held that:

“it is well settled law that the judgement of a competent court subsists and remains binding until it is set aside on appeal”.

5. Any Attempt to Reoccupy Local Government Offices Is Unconstitutional and Amounts to Self Help

Any action taken by political actors to forcefully invade and reoccupy LG offices as was witnessed few days ago is not only illegal but also constitutes a contemptuous disregard of a valid and subsisting court judgement; and indeed a resort to self help, viet armis. The law forbids such resort to self-help by parties in a pending matter with a view to usurping the functions of a court of law. The Supreme Court in AGBAI & ORS V. OKOGBUE (1991) LPELR-225 (SC) 69-70, F-A, trenchantly cautioned that:

“The ratio decidendi of the decision of this Court in Ojukwu’s case is that once there is lis inter partes and the Courts of law are seised with the dispute, no person or authority, whether parties to the lis or not, is allowed by the Constitution to usurp the functions of the Court of law. It is the duty of every person or authority not to interfere with the legal and judicial process from taking its due course.”

The Supreme Court further confirms this position in NWAKIRE v COP (1992) LPELR-2097 (SC) 42-43, A-D, where it held thus:

“That self-help is not allowed in adjudication has been firmly ensconced in the jurisprudence of this nation like the Rock of Gibraltar, which position remains as constant, in Caesar’s words in Shakespeare’s Julius Caesar, “as the Northern Star”.

See the causa celere case of MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU & ANOR (1986) LPELR-3186 (SC). See also GARBA V. FCSC (1988) LPELR-1304 (SC) 28-29.

6. The Court of Appeal did not make any consequential Order of Re-instatement of the Sacked LG Officials

It must again be emphasised for the umpteenth time that the Court of Appeal in the PDP appeal decision never validated the election conducted by OSSIEC in 2022 under any guise as the issues on the validity of the election that could have led to a pronouncement on whether or not the APC candidates were rightly sacked were never considered. As a result, there was no consequential order for reinstatement by the Court of Appeal. The only consequential order by the Court of Appeal was an order directing PDP to pay a cost of N250,000 to the Appellants. NO MORE, NO LESS!

CONCLUSION

UPHOLDING THE RULE OF LAW

The Judiciary’s intervention in both the PDP and APP cases rather than show a Judiciary that is complicit, actually underscored the supremacy of the Electoral Act over state laws in regulating local government elections. Under Nigerian legal jurisprudence, the doctrine of “covering the field” applies here, which provides that all state laws which are inconsistent with federal laws are to the extent of those inconsistencies, null and void. In the case of A.G LAGOS STATE V. EKO HOTELS (2017) LPELR-43713(SC), the apex court expounded on the doctrine of covering the field thus:

“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 will prevail, and that other law shall to the extent of its inconsistency be void” – Section 4(5) CFRN 1999 {As Amended}. This, in clear language, means that only the law validly enacted by the federal legislature will prevail on that which is also validly made by the state house of assembly but this is only where that State Law is inconsistent with that of the Federal law.”

Similarly, in FRIDAY & ORS v. GOV OF ONDO STATE & ANOR (2012) LPELR-7886(CA), the appellate court held thus:

“…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 will 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.”

See also the cases of O.S.I.E.C. V. A.C (2010) 19 NWLR (Pt. 1226) 273; NPF & ORS V. POLICE SERVICE COMMISSION (2023) LPELR-60782 (SC); INEC V. MUSA (2003) LPELR-24927 (SC); and, AIRTEL NETWORKS LTD V. AG OF KWARA STATE & ANOR (2014) LPELR-23790 (CA).

All the judgements involved in these cases actually reaffirmed the necessity for electoral bodies to adhere strictly to established legal frameworks, ensuring transparency and compliance in the electoral process. See the cases of AUGUSTINE & ANOR V. INEC & ORS (2024) LPELR-61876(SC) and BUHARI Vs. INEC (2008) 19 NWLR (1120) 246. Such a judgement serves as a significant precedent for future electoral disputes in Nigeria, thus emphasizing the importance of lawful conduct in the governance process. The Court of Appeal in the PDP appeal having struck out the suit without considering the merit of the decision as regards the validity or otherwise of the election conducted by OSSIEC in 2022, the effect is that the suit filed by the PDP never existed in the eyes of the law.

However, the Court of Appeal in the PDP case did not strike down the judgment of the FHC in the APP case, nor did it validate the 2022 LG election and re-instate the sacked LG officials. The FHC’s decision in the APP case thus remains the only definitive legal authority on the status of the 2022 Osun State LG elections. Until and unless the Supreme Court decides otherwise, the said elections remain null, void, and of no effect whatsoever. No person elected in that flawed process can lay any lawful claim to any office.

Any claim to the contrary is a deliberate misinterpretation of the legal position and constitutes an attempt to undermine the rule of law and subvert the judicial process. Such would also serve as a subterfuge to the powers and decisions of arguably the most important arm of government – the Judiciary.

THE COURT’S DECISION IN THE OSUN LG BROUHAHA MUST BE EXECUTED

It is now the duty of law enforcement agencies and government institutions to ensure that all judicial decisions involved in these cases are respected and upheld. It is trite that all persons and authorities must obey judgements of courts and parties are not permitted to pick and choose which judgements to obey, or which to disobey. This legal principle was emphasised in the case of PDP v. LALONG & ORS (2023) LPELR-61629(CA), where the intermediate court held thus:

“By the provision of Section 287 of the 1999 Constitution of the Federal Republic of Nigeria, all authorities and persons, including this Court, are expected to observe and ensure the compliance of order/judgments of the Court including High Court particularly orders/judgments that are in rem…An order of a competent Court of law, no matter its nature, is absolute and binding on all and sundry without question until it is legally and legitimately set aside by a competent Court of appellate jurisdiction. The fact of its being final or interim does not therefore affect its application and effectiveness. It remains valid and enforceable and must be obeyed”.

See also the cases of NGERE & ANOR v. OKURUKET & ORS (2014) LPELR-22883(SC); SHUGABA V. U.B.N. PLC (1999) LPELR – 3068 (SC); and, OBOH & ANOR V. NFL & ORS (2016) LPELR-50559 (CA).

THE LAW MUST BE VISITED ON THOSE WHO RESORTED TO SELF-HELP

I watched with dismay and disgust the act of certain LG officials who forcefully barged into the LG headquarters, attempting to reclaim office in the false and erroneous belief that the judgment of the Court of Appeal in the PDP case had re-instated them to their official positions, such was nothing short of brigandage and crude resort to self help. It must be condemned in the strongest terms and I so condemn it. It was selfish and uncalled for. In the same vein, all those who aided and abetted this democratic aberration must be fished out and charged before the law courts, however highly placed they are.

ANY AVAILABLE REMEDY?

My above take is not to say that there is no remedy available to the sacked officials; they still have a right of appeal to the Supreme Court in the APP case. But until the Supreme Court overturns the valid and subsisting judgment in rem of the FHC in the APP case, the said judgment remains binding on all parties.

The irresistible conclusion to be drawn from these events is that all LG offices across Osun State remain vacant and that the sacked APC officials cannot lay claim to the benefit of any judgement to occupy the council offices until they obtain a different outcome, if any, from the apex court. This is the LAW.

THE WAY FORWARD

To save themselves from needless orchestrated violence, all the political parties in Osun State should go for fresh polls and test their popularity in a free, fair and credible election. Politicians should leave the Judiciary alone by playing clean politics. As to the title of this piece, my humble submission is that the Judiciary was not in any way complicit in the Osun State LG imbroglio. Rather, it acted in good faith, striving fiercely to defend the rule of law and uphold electoral integrity.