Osun State Independent Electoral Commission & Anor. V. Action Congress & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

MUNTAKA-COOMASSIE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division, delivered on the 19/3/2009 in which the plaintiffs’ appeal to it was allowed; dissatisfied with the judgment of the Court of Appeal (hereinafter called the lower court) the defendants have appealed to the apex court of the land.

The plaintiffs, in their originating summons dated 8/11/07, filed before the trial High court i.e. High court of Justice of Osun State, claimed the following reliefs:-

1. A DECLARATION that the combined provisions of paragraphs 11 and 12 of second schedule to the 1999 Constitution and Section 12 of the Electoral Act, the National Assembly has powers to make laws with respect to registration of voters and the procedure regulating Elections to Local Government Councils.
2. A DECLARATION that Section 10 of the Electoral Law of Osun State which stipulated 21 days notice of the date of election into local government in Osun State is null and void as it is inconsistent with Section 31 Electoral Act, 2006 which provides 150 days Notice of Election date which forms part of the procedure for the conduct of elections into the Local Government Councils.
3. A DECLARATION that the Osun State Independent Electoral Commission cannot validly conduct Election into the 30 Local Government councils in Osun State without giving 150 days mandatory Notice of poll to the plaintiffs in accordance with Section 31 and 121 of the Electoral Act, 2006.
4. AN ORDER compelling the 1st defendant to give statutory notice of Election to plaintiffs as prescribed under Section 31 of the Electoral Act.
5. AN INJUNCTION restraining the 1st defendant, its agents, servants, officers, privies, assigns and or howsoever called from giving effect to or implementing the provisions of Section 10 of the Osun State Electoral Law of 2002
6. AN INJUNCTION restraining the 1st defendant from conducting any Election into the Local Government council in Osun state on the basis of section 10 of the Osun State Electoral Law of 2002″.

The averments relevant to the Summons as contained in the affidavit in support are as follows:-

“7. That the 1st defendant is preparing to conduct election into the offices of chairman and councillors in all the Local Government Councils in reply (sic) to Osun State.

8. that the 1st defendant has published in the Nigeria Tribune of the 5th day of November, 2007 page ‘O’ 15 days of December as the date of Local Government Elections.

Attached is a photocopy of page O of the Nigerian Tribune of the 5th day of November, 2007 and marked Exhibit ‘A’.

9. that before any election into local government council in Osun State is conducted, the 1st defendant is required to give to each of the plaintiffs 150 (One Hundred and Fifty) days Notice of poll.
10. that further to the deposition above, the 1st defendant is required to give 120 (One Hundred and Twenty days) before the election to each of the plaintiff to file nomination of their candidates.
11. that each of the plaintiffs need time to arrange for the process leading to the emergence of their various candidates for election into Local Government council in Osun State.
12. that the failure to give the required Notice of poll and the notice of nomination forms to each of the plaintiffs by the 1st defendant has put the plaintiffs in darkness as to the way, manner and time to prepare the process that will lead to the Notice of their candidates for the election.”

The defendants/respondents filed counter-affidavit, in which it was averred as follows:-

“7. that the plaintiffs had been given adequate Notice of the 1st defendant as the notice of the election was given since May, 2007 to all the parties by the general notice issued to all the parties and pasted on the Notice Board of the 1st defendant.

8. …………
9. that I know that preparations by the 1st defendant for the conduct of the forthcoming Local Government Election in the State commenced in earnest after the successful completion of the general election by which time all parties particularly the plaintiffs were notified.
10. that precisely the 1st defendant started its preparation on 28th May, 2007 when the defendant commenced a series of sensitisation programmes and duly notified all the political parties actually on ground in the state of its readiness to organise the State Local Government Election on 15th December, 2007.
11. that it was the consciousness of the 150 days statutory notice stipulation that made 1st defendant to commence its preparation in earnest and all the political parties actively on ground in the State consequently duly notified.
12. that apart from giving the requisite notifications, the defendants also went on air (announcements on the OSBC Radio and Television Stations since that May 2007) and also had series of interaction sessions with the parties actively on ground in the State.
13. that consequent upon the due notices given by the 1st defendant to all the Parties in the State, ten (10) of them inclusive the plaintiffs had as at 30/11/09 collected the requisite forms and fielded candidates in the forthcoming election. Attached Exhibit A is the copy of the breakdown of the parties and their candidates that will be contesting in the election. Also attached are the photocopies of the receipts of payment made by the plaintiffs to the 1st defendant hereby marked Exhibit C.
14. that as a build up towards the election, a meeting with stakeholders and staff of the 1st defendant was organised/convened on 19/9/07 and press release on the outcome issued. Attached as Exhibit B is the copy of the press release dated 19/9/07…..
15. that the 1st defendant has expended millions’ of Naira towards conducting the election.”

The learned trial Chief Judge heard both parties, and in his judgment granted relief No. 1 of the plaintiffs, and refused reliefs 2-6.

Dissatisfied with the judgment of the trial court, the plaintiffs have appealed to the Court of Appeal. It is worthy of note that the trial High Court’s judgment was delivered on the 14/12/07 while the 1st defendant conducted the election in the 30 Local Government Councils in the State on the 15/12/07.

Whilst the Notice of Appeal to the Court below was filed on the 24/12/07.

The lower court heard the appeal, and after considering the respective briefs of argument of the parties allowed the appeal and ordered as follows:-

“(1) That by the combined provisions of items 11 and 12 of the second schedule to the 1999 Constitution and Section 121 0f the Electoral Act, the National Assembly has powers to make laws with respect to registration of voters and the procedure regulating elections to Local Government Councils.

(2) That Section 10 of the Electoral Law of Osun State 2002 which stipulates 21 days notice of the date of election into Local Government in Osun State is null and void as it is inconsistent with Section 31 of the Electoral Act, 2006 which provides 150 days notice of election date which forms part of the procedure for the conduct of elections into Local Government Councils.