Osun State Independent Electoral Commission & Anor v. Action Congress & Ors

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.

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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.

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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.

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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.

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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.

(3) that the Osun State Independent Electoral Commission cannot validly conduct election into the 30 Local Government Councils of Osun State without giving 150 mandatory notice of poll to the plaintiffs in accordance with Sections 31 and 121 of the Election Act, 2006.

(4) It is hereby ordered that the 1st respondent gives statutory notice of election to plaintiffs as prescribed under Section 31 of the Electoral act.

(5) The 1st respondent, its agents, servants, officers, privies, assigns and or however called are hereby restrained from giving effect to or implementing the provisions of Section 10 of the Osun State Electoral Law 2002.

(6) It is ordered that the purported Local Government Election conducted in Osun State by the 1st respondent on December 15th, 2007 is hereby set aside.

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(7) It is hereby ordered that a fresh election be conducted in Osun State in strict compliance with the provisions of the Electoral Act, 2006.”

The respondents were dissatisfied with the judgment of the lower court and have as a result, appealed to this court.

In the meantime, by a motion dated 22/4/09, all the candidates that emerged as chairmen of the 30 Local Government Councils, in the election and conducted by the 1st defendant on the 15/12/07, applied for leave to appeal as interested persons and to appeal against the judgment. The application was granted, the applicants were made the appellants, while the parties in the earlier appeal were made respondents.

In accordance with the Rules of this Court all the parties filed their respective briefs of arguments in the two appeals-

The learned senior counsel to the appellants in the first appeal, Tayo Oyetibo, SAN adopted- his brief in which six (6) issues for determination were distilled as follows:-

ISSUES FOR DETERMINATION

1. Whether the Court of Appeal was right in law in declaring section 10 of the Electoral Law 2002 of Osun State unconstitutional null and void on the grounds of inconsistency with Section 31 of the Electoral Act 2006 -Ground 1.

2. Assuming, without conceding, that Section 31 of the Electoral Act 2006 is applicable to the conduct of Local Government elections whether the Court of Appeal was right in interfering with the finding of fact made by the Trial court that the 1st, appellant herein gave notice of election in May 2007 – Ground 2.

3. Whether the Court of appeal was right in setting aside the Local Government Election conducted on 15th December, 2007 on the ground that Section 10 of Electoral Law 2002 of Osun State which was relied upon by the 1st appellant in giving notice of the election was unconstitutional – Ground 4.

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4. Whether the Court of Appeal was right in law in granting reliefs 1 – 5 contained in the respondent’s originating summons and also an Order setting aside the election conducted on 15th December, 2007 when the former had been abandoned in the notice of appeal and no leave of the court was sought and obtained to seek the latter which was not contained in the originating summons. Ground 3

5. Whether the Court of Appeal was right in law in ordering that a fresh election be conducted into Local Government Councils in Osun State strictly in compliance with the provisions of the Electoral Act 2006 as if the provisions of the Electoral Law 2002 of Osun State do not apply to the conduct of the election – Ground 5.

6. Whether the Court of Appeal was right in law in setting aside the elections conducted into Local Government Councils in Osun State on 15th December, 2007 when all the political parties that participated in and won the election were not made parties to the suit – Ground 6.”

In response, the learned counsel to the 1st – 3rd respondents, Femi Falana, Esq., formulated four 4 issues for determination thus:-

“ISSUES FOR DETERMINATION

1. Whether the Court of Appeal was right in declaring section 10 of the Osun State Electoral Law 2002 illegal and unconstitutional on the ground of inconsistency with section 31 of the Electoral Act, 2006 – Ground 1.

2. Whether the Court of Appeal was right in interfering with the finding of the Trial High Court that notice of election was given by the 1st appellant in May, 2007 – Ground 2.

3. Whether the Court of Appeal was right in granting 1 – 3 reliefs contained in the respondents’ originating summons.

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Ground 3.

4. whether the court of Appeal was right in setting aside the election into the Local Government Councils in Osun State in December 15, 2007 and in ordering that a fresh election be conducted in the circumstances (Ground 4, 5 and 6).

In the second appeal, the learned senior counsel to the appellants Yusuf Ali, SAN formulated two issues for determination which are herein after reproduced.

“ISSUE FOR DETERMINATION

1. Whether the Court below was right in granting reliefs in this case that adversely affected, eroded and annulled the vested rights of the appellants in their elective offices as chairmen of the Local Government Councils and area council without affording them any form of hearing whatsoever when the nullification of the provision of any statute and or liability incurred under the annulled, enactment or statute contrary to the stance of the court below.

2. Whether in fact, deed, or law the provisions of section 10 of the Osun State Electoral Law 2002 was in fact inconsistent with or in derogation of the provisions of Section 31 of the Electoral Act, 2006, the provisions of the constitution or any other statute for that matter.

The learned counsel to the 1st – 3rd respondents in the former appeal, Femi Falana Esq. also formulated five (4) issues for determination in the following terms: –

“ISSUES FOR DETERMINATION

1. Whether the court below was right in setting aside Local Government election conducted in Osun State on December 15, 2007.

2. Whether section 10 of the Osun State Electoral Law 2002 is illegal and unconstitutional on the ground of inconsistency with section 3 of the Electoral Act, 2006, the provisions of the constitution or any other statute for that matter.

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3. Whether the Court of Appeal was right in granting reliefs No. 1-3 contained in the respondents originating summons – Ground 3.

4. Whether the Court of Appeal was right in setting aside the election into the Local Government Councils in Osun State on December 15, 2007 and in ordering that a fresh election be conducted in the circumstances Ground 4, 5 and 6.”

At the hearing, the learned senior counsel to the appellants in the first appeal adopted his brief of argument and urged this court to allow the appeal

1ST ISSUE

On his 1st issue, learned senior counsel submitted in construing whether section 31 of the Electoral Act, 2006 applies to election into Local Council, the court will undoubtedly consider the relevant provisions, not only of the Electoral Act but also of the constitution of the Federal Republic of Nigeria. That section 4 (a) (b) of the 1999 Constitution vests the National Assembly with the power, to make laws for the Federation in respect of matters contained in the concurrent legislative list contained in part 16 of the Second Schedule to the 1999 Constitution, the National Assembly enacted the procedure for Local Government Council elections in Section 121 and 122 of the Electoral Act. Counsel then submitted that Section 31 of the Electoral Act, 2006 does not apply to the filing of nominations in Local Government election.

That Section 121 of the Electoral Act contains general provisions that the procedure for filing nomination and casting of votes for Local Government Council Elections shall be the same as is applicable to other elections under the Act, Section 121 (1)(2)(3) of the same Act makes specific provisions for the procedure for nomination in Local Government Elections.

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Counsel therefore submitted that specific provisions derogate from general provisions, while general provisions do not derogate from special provisions, the cases of Schroder v Major & Company (Nig) Ltd.(1982) 2 MLR (Pt. 101) 1, Bamgboye vs. Administrator General, 4 WACA 816 were cited.

In the case at hand, what is in issue is the procedure for nomination, that the marginal note to Section 122 of the Act provides a guide for the Section, which is useful in considering the purpose of the Section, he cited in support the case of Oladaya v. Alagbe (1993) 2 SCNLR 35 at 57.

Counsel contended that the literal interpretation of Sections 31 and 121 of the Act in such a way as would make the former to apply to Local Government Council Election will produce absurdity as it would mean that notice of local Government election must be published in each state not later than 150 days before the day appointed for holding the election. The Section must be taken as it is without modification, alteration or qualification, as decided in several cases some of which are (a) Ifezue v. Mbadugha (1984) 1 SCNLR 427 at 447; (b) Ezedukara v. Maduka (1997) 8 NWLR (Pt. 518) 635 at 669; (c) Ojokolobo v. Alawu (1987) 3 NWLR (Pt. 61) 377 at 386.

Counsel further submitted that the court below did great violence to section 31 of the Electoral Act 2006 when it isolated the requirement of 150 days notice of election as what is applicable to the conduct of Local Government Councils election in Osun State, and ignored the other requirements under the same section that the notice be published in each State of the Federation.

Learned senior counsel further submitted that section 31 of the Act does not deal with procedure for nomination but deals with notice of election.

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It was submitted that part 11 of the concurrent Legislative List contained in part 11 of the second schedule to the 1999 constitution only empowers the National Assembly to make laws for the Federation with respect to the registration of voters and the procedure regulating election into Local Government council in so far as paragraph 12 of the concurrent Legislative List empowers a House of Assembly to make laws with respect to election into Local Government council, it is the Electoral Law of Osun state that ought to be looked up to for the provision relating to notice of election, it was therefore wrong in declaring section 10 of the Electoral Law of Osun State null and void as being inconsistent with Section 31 of the Electoral Act, 2006.

ISSUE NO. 2.

On issue No. 2, Learned Senior Counsel submitted that the 1st respondent complied with the provisions of section 31 of the Electoral Act 2006, even if it is conceded that section 31 of the Act applies. Counsel referred to paragraphs 10 and 12 of the counter affidavit and referred also to the Trial Court’s finding that Exhibit A attached to the respondents’ affidavit was not inconsistent with section 31 of the Electoral Act, 2006 because it was made in abundance of caution the stakeholders having been notified earlier on in May, 2007. It was therefore wrong for the lower court to have interfered with this finding as it was based on the evidence before the court; counsel cited the case of:- (i) Otogbolu v. Okekuwa (1981) 6-7 SC, 99 AT 108; AND (ii) Ademola and Ors. v. Odiese & Ors. (1990) 1 NWLR (Pt. 125) 165 at 181.

ISSUE NO 3.

On the issue No. 3, it was submitted that the Court of Appeal violated the basic principle of law on the effect of nullification of a statute, whether by repeal or for its being un-constitutional does not affect anything, privileges, or obligation which has accrued there under.

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Counsel referred to Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; and Peenok Investment Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122; University of Ilorin vs. Adeniran (2003) 17 NWLR (Pt. 549) 214/231; and Section 13 of the interpretation Law of Oyo State.

As a result, even if the lower court correctly held that Section 10 of the Electoral Law of Osun State is void being inconsistent with the provisions of Section 31 of the Electoral Act 2006, the Local Government Election held on 15th December, 2007 could not be said to be invalid as it was held when the said section was still valid and extant.

ISSUE NO. 4

On issue No. 4, the learned senior counsel referred to the relief stated in notice of appeal and submitted that the respondent have abandoned their reliefs as contained in the originating summons. It was the contention of the learned counsel that at the time the election was conducted on 15th December, 2007, there was no pending action against the appellants and the respondents did not seek the leave of the court to amend its originating summons to include an order setting aside the election. The reliefs 1-5 granted by the lower court were abandoned in the notice of appeal.

He relied on Order 6R2(1) of the Court of Appeal rules 2007 and submitted that the respondents were expected to state all the reliefs they claimed in their notice of appeal, and having failed to do so, the Court of Appeal therefore has no jurisdiction to grant them, he cited the case of Ekpeyong v. Nyong (1976) 2 SC 71 at 80 – 81.

Those reliefs 6 and 7 were not claimed by the respondents in their originating summons before the Trial Court, and the respondents, who were the appellants in the lower court, did not seek and obtain the leave of that court to seek two reliefs. Thus the court cannot grant a relief not claimed; he cites the case of Kojo Attah v. Kwakuh Apawa, 17 WACA 75 at 76-77.

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ISSUE NO. 5

On the issue No. 5, it was the contention of the learned counsel that the terms of relief 7 granted by the lower court did not leave any room for the applicability of the Electoral Law whereas only Section 10 was nullified. The order that a fresh election be conducted in strict compliance with the provisions of the Electoral Act, 2006 has indirectly nullified the Electoral law of Osun State 2002; which was not part of the respondents’ claim in the originating summons and as such the order as made by the lower court is a nullity.

ISSUE NO. 6

On issue No. 6, it was the contention of the learned senior counsel that it was wrong for the lower court to have made an order setting aside the election without joining all ten political parties that participated in the Local Government Election conducted on 15th December, 2007. Since it is the political parties that win or lose in an election, it was important and necessary for all the political parties that participated in the election to be parties to this case, he cited in support the case of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227/317; and G. G. Lagos State v. A. G. Federation (2004) 18 NWLR (Pt. 904) 1.

Learned counsel to the respondents, Femi Falana Esq. also adopted his briefs of argument, and urged this court to dismiss the appeal. It was the submission of the learned counsel on his issue No.1 that by virtue of items 11 and 12 of the second schedule to the 1999 Constitution it is the National Assembly that is empowered to make laws for the entire Federation with respect to the registration of voters and the procedure regulating elections to a local government council. Even though a House of Assembly of a State may make laws with respect to election to a local government but such a law must not be inconsistent with any law made by the National Assembly, he cited the case of Attorney-General, Abia State v. Attorney-General of the Federation (2002) 17 WRN 1 at 99.

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He contended that the Trial court was right when it granted the 1st relief in the originating summons but somersaulted when it proceeded to hold that Section 10 of the Osun State Electoral Law which stipulated 21 days notice before the holding of an election is not inconsistent with Section 31 of the Electoral Act 2006 which provides 150 days notice before the day appointed for holding an election because what is required is notice and not the magic word “150 days”. It was the contention of counsel that the appellants did not avert his mind to the Supreme Court decision in the case of Attorney-General, Abia State v. Attorney-General of the Federation (supra)’ as adopted by the lower court instead he has cited several cases that are totally irrelevant to the facts of his case.

He therefore submitted that section 10 of the Osun State Electoral Law 2002 which prescribes a notice of 21 days is inconsistent with Section 31 of the Electoral Act, 2006 which requires a notice of 150 days before the conduct of election. He referred to the submission of the learned senior counsel to the appellants that Section 10 of the Osun State Electoral Law 2002 is valid on the ground that publication of notice is not part of the procedure for election is misleading and it ought to be rejected in view of the decision in Attorney-General Abia State v. Attorney-General of the Federation (supra). He also referred to paragraph 4.6 and 4.7 of the appellants brief where it was contended that the National Assembly enacted the procedure for Local Government elections in Section 121 and 122 of the Electoral Act, 2006, pursuant to items 11 and 72 on the concurrent legislative list contained in part 11 of the second schedule to the 1999 Constitution and that, section 122 of the Electoral Act 2006 deals with the procedure for nomination.

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while section 31 deals with notice of election, and submitted that the appellants counsel have contended that section 122 which deals with nomination is applicable to Local Government elections, the appellants have conveniently failed to examine section 32 of the Electoral Act 2006, which has prescribed 120 days for the filing of nomination of candidates by political parties. Thence, if 21 days notice of election is prescribed by section 10 of the Osun State Electoral Law 2002 is valid as urged by the appellants, the political parties will not be in a position to file nomination of their candidates 120 day before the election. He then submitted that by the combined effect of items 11 and 12 of the concurrent legislative list in the 1999 Constitution, Section 121 and 122 of the Electoral Act 2006 and the authority of Attorney-General Abia State v. Attorney-General of the Federation (supra) the decision of the court below that section 10 of the Osun State Electoral Law 2002 is illegal and unconstitutional as it is inconsistent with section 31 of the Electoral Act, 2006 cannot be impugned.

On his issue No.. 2, it was the contention of the learned counsel that the claim that a notice of election was published in May 2007 flies in the face of logic in view of the contents of paragraphs 1 and 2 of Exhibit 2 attached to the appellants’ counter affidavit, Exhibit 2 is are lease signed by the chairman of the 1st respondent on the meeting held on September 19, 2007. Two months later Exhibit A of the affidavit in support was published by the 1st respondent, it is therefore crystal clear that the 1st appellant gave 21 days notice pursuant to section 10 of the Osun State Electoral Law 2002. It is therefore submitted that the finding of the Trial court that a proper notice, as required cannot be valid in view of Exhibit A.

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The affidavit in support of the originating summons. Hence since the Trial court fell into grave error in the evaluation of the evidence before it, the court of Appeal was right in setting it aside as it is perverse on the issue of notice. The case of Abdul-Karim v. Anazodo (2006) 29 WRN 151 at 173, (2006) 11 NWLR (pt.992) 299 was cited.

On issue No. 3, it is the submission of the counsel that this court has not hesitated to set aside an election once it was conducted in total violation of the Electoral Act, he referred to the case of Obi v. INEC (2007) 10 WRN, 1 and Amache v. INEC (2008) 5 NWLR (Pt. 1080) 227. It was his further contention that if the court below had merely declared that the Local Government election held in Osun State on December 15, 2007 was illegal and unconstitutional, the course of justice would not have been served. It would have been futile to so declare and that on the authority of Obi v. INEC (supra) the court below cannot be faulted in setting aside the Local Government election conducted by the 1st appellant in contravention of section 31 of the Electoral Act, 2006.

On his issue No. 4, counsel pointed out that the reliefs sought in the respondents originating summons are set out on page 2 of the record, while the Trial Judge in his judgment granted relief 1 and dismissed reliefs 2 – 6. The plaintiffs being dissatisfied with the judgment filed an appeal and prayed the court of Appeal to allow the appeal and set aside the election purportedly conducted by the appellants on December 15th, 2007. That contrary to the contention of the appellants the reliefs sought in the originating summons were not abandoned in the court below and that by asking that the appeal be allowed the respondents were praying the court below to hear the appeal and grant the reliefs sought in the Trial court.

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An appeal is by way of re-hearing, the lower court had re-heard the appeal in line with Order 6 R 2 (1) of the Court of Appeal Rules 2007 and allowed the appeal and granted the reliefs which the trial court refused to grant. The relief 1 granted by the lower court was an affirmation of relief which had been granted by the Trial court. Reliefs 2-5 granted by the court below were sought by the respondents in the originating summons, and the court below proceeded to grant consequential reliefs which the justice of the case demands.

He further contended that it is erroneous as contended by the appellants that an appeal is a new cause of action, on the contrary, an appeal is a continuation of the originating suit, he cited the case of Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 266.

Counsel further contended that an appeal is an invitation to a higher court to review the decision of a lower court to see whether on the proper consideration of the facts placed before it, and the application of the law the lower court arrived at a correct decision. See: (a) Ngige y. Obi (2006) 18 WRN 1, and (b) Oredeyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172.

It was further submitted that as the findings of the Trial court could not be justified in fact and in law, the court below rightly granted reliefs 2,3,4,5 and 6 in the originating summons in the exercise of its powers under section 16 of the Court of Appeal Act, See: Obi v. INEC (supra) at Page 639.

On the issue of not joining the alleged ten political parties, the learned counsel pointed out that the list on pages 46-47 of the record contains names of political parties and their candidates “aspiring to the post of chairmen and councillors” and that there is no evidence to prove that the ten (10) political parties eventually contested the election either at the Trial court or the court below.

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He contended that the respondents are not bound to drag to court those who are not aggrieved by the way and manner the 1st respondent wanted to conduct the election. Learned counsel submitted that in the entire judgment of the court below no where was it stated either impliedly or expressly that the entire Osun State Electoral Law 2002 has been declared illegal and unconstitutional by the lower court, consequently the lower court directed the appellants to give “statutory notice of election to the plaintiff as prescribed under section 31 of the Electoral Act which stipulated in section 10 of the Osun State Electoral Law 2002.

In reply to the submissions of the respondents in their brief of argument, the appellants filed a reply in which they submitted that the facts in Attorney-General Abia State v. Attorney-General of the Federation (supra) are not in all fours with the instant case.

On the respondents’ submission on section 32 of the Electoral Act 2006, it is submitted that the respondents’ submission is no sequitur for the simple reason that at no time in the Trial court or in the court below was the interpretation to be given to section 32 and 34 of the Electoral Act, 2006 was in issue between the parties.

On the exhibition of the notice that was said to be issued by the 1st respondent in May 2007, the learned senior counsel submitted that the appellants having deposed in paragraph 7 of their counter affidavit to the originating summons that notice of the election was given since May 2007 to all the parties, they were not bound to adduce further evidence on the point.

On the second appeal, the learned senior counsel to the appellants, Yusuf Ali, SAN, adopted his brief of argument, and urged the court to allow the appeal.

On his issue No. 1, for determination, learned senior counsel submitted that it is un-arguable that the present set of appellants was not parties at the Trial Court and the court below.

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It is also not in dispute that the 4th respondent conducted elections into the 30 local government councils and area council in Osun State on 15th December, 2007 and that the winners emerged after the election.

He further contended that there was no relief in the originating summons asking for the nullification of any election already conducted by the 4th respondent. There was no application in the court below by the 1st – 3rd respondents to amend their reliefs to include the nullification of the elections and the holding of fresh ones. He therefore submitted that the legal, factual and plain implication of the reliefs granted i.e., reliefs 6-7 without hearing the appellants was that by their election, they were removed from their offices and had the daunting task of taking part in another round of local government elections in Osun State if they wish to remain as chairmen of their local councils. It is settled that the right to a fair hearing is not a make believe, cosmetic or fairy doctrine but one, of solid substance as a result any form of proceedings conducted in breach of the right to a fair hearing is a caricature of a hearing and liable to be set aside exdebito justitae. Also a court cannot make a valid binding Order on persons that are not parties to the proceedings. If such order is to be made then the party to be affected thereby must be heard in defence. Learned senior counsel referred to section 36(1) of the constitution of the Federation Republic of Nigeria 1999 and submitted that the Section infers the twin pillars of natural justice namely, audi Alterum, pertem and nemo judex in causa sua.” The learned senior counsel cited the case of Mohammed v. Kano N.A. (1968) ANLR (Reprint) 411 at 413.

counsel contended that a party that complains of the breach of his right to fair hearing need not show any injury or detriment he suffers thereby, the breach itself is the evidence of the injury, he cited the case of Yahaya Adigun and ors v. Attorney-General of Oyo State (1987)1 NWLR (Pt.53) 678.

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He contended that the present appellants did suffer prejudice of having their elections nullified by the court below without any iota of hearing, fair or otherwise.

On the issue of an order against non-party, learned counsel submitted that a court is without jurisdiction or vires to grant a binding Order against a person that is not a party to a proceeding, thus a court cannot make valid binding Order against a non party and in the instant case, the appellants were not parties to this proceedings at the Trial court and the court below, the cases of Olawuyi v. Adeyemi (1960) 4 NWLR (Pt. 147) 746 at 769, and Pan African Bank Ltd. v. The State (1997) 4 NWLR (Pt. 499) 296 at 304 were cited in support.

On the effect of the nullification of section 10 of the Osun State Electoral Law 2002, learned senior counsel submitted that where an act was performed per force pursuant to an enactment and the enabling enactment is subsequently annulled by the court all the rights, privileges and liabilities earned and incurred under the annulled enactment will not be affected.

Counsel referred to section 6 of the Interpretation Act Cap. 192 Laws of the Federation 1990. Thus, the nullification of section 10 of the Osun State Electoral Law 2002 amounted to “otherwise ceases to have effect,” then subsection 10 of the subsection 1 of section 6 of the Interpretation Act comes into play. To his submissions on the effect of the nullification of an enactment vis-a-vis the rights, privileges and liabilities earned or incurred under it, counsel further referred to the case of Abaye v. Ofili (1986) 1 NSCC Vol. 17 94 at 104.

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On the issue No. 2, learned senior counsel referred to section 10 of the Osun State Electoral Law 2002, section 31, and 121 of the Electoral Act, 2006, section 7 (4) of the 1999 Constitution, and items 11 and 12 of the second schedule to the 1999 Constitution and submitted that the provisions of the Constitution is to be read together and not disjunctively that it is the plain words used that must be given effect to, that is the courts are to prefer the literal rules of Interpretation. Also the court cannot call in aid the written constitution of other countries, such written constitutions can only be looked at to see if they are similar to ours. Counsel cited the case of

(i) Nafiu Rabiu v. The State (1979 – 81) 12 NSCC, 291 at 300 – 302;

(ii) P.D.P v. INEC (1999) 11 NWLR (Pt. 626) 200 at 276-278.

Learned senior counsel submitted that the lower court did not follow the law of this Honourable court on the Interpretation of the constitution and other statutes as espoused in the dicta of this court cited above. If it had done so it would not have arrived at the decision that the provisions of section 10 of the Osun State Electoral Law 2002 was inconsistent with the provisions of section 31 of the Electoral Act, 2006. It was further submitted that a careful reading of section 10 of the Osun state Electoral Law 2002 reveals that the operating phrase on the section is “not less than 21 days”.

On the other hand the operating phrase or words in section 31 is “not later than 150 days”. Clearly it would be seen that the highest possible number of days notice of election must be given, while section 10 of the Osun State Electoral law 2002 prescribed the minimum number of days the notice must be given.

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The Interpretation of the court below, counsel further stressed would have been corrected, if the Act uses “not less than 150 days” then section 10 of the Osun law would have been inconsistent with the former.

Leaned counsel further submitted that section 31 is exempted from the provisions of section 121 of the Electoral Act 2006 that it is a section that is not applicable to elections in the local government of the State, this is because by the definition of the “commission” in section 164 of the Electoral Act to mean the ” Independent National Electoral Commission established by the constitution, while on the other hand section 164 of the Electoral Act defined “State Commission” to mean State Independent Electoral Commission established by section 169 of the Constitution. Hence if section 31 was meant to apply to Local Government Elections, the use of the word commission in that section would have included State Electoral Commissions.

Also it was submitted that the provisions of paragraph 11 of the second schedule to the constitution that talks of ‘c procedure regulating elections to a local government council” does not envisage the time of notice of such election as a procedural law.

The procedure as, used therein will concern things like the manual that prescribed the procedure for accreditation of a polling station, conduct of polling officers at such station like the opening of ballot, giving of ballot papers to voters and counting of votes, counsel referred to Blacks Law Dictionary 6th Edition page 1203- 1204. That there is nothing in the Electoral Act, 2006 that compels the application of the provisions of Section 31 of the Electoral Act 2006 to elections other than National Elections.

Learned counsel to the 1st – 3rd respondents also adopted his brief of argument and urged this court to dismiss the appeal.

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On his issue No 11, learned counsel posited that it is not in dispute that this case originating before the election into the Local Government in Osun State. The 1st-3rd respondents filed the case to challenge the legality of the election sought to be conducted by the 4th respondent. Judgment was given on the 14 day of December, 2007, the 4th respondent then, quickly conducted the election on the 15 day of December, 2007.

The appellants in this case were the beneficiaries of both the judgment and the illegal election hurriedly conducted to impose a fait accompli on the 1st – 3rd respondents, which elections were nullified by the lower court. The learned counsel, submitted that if the lower court had upheld the elections as valid; the appellants would not have approached this court. He further contended that in all the processes before this Honourable court, the appellants have not said that they were not aware (or unaware) of the pendency of the suit at the High Court sitting in Oshogbo or at the Court of Appeal.

The appellants only chose to stand by and watch the out-come of the proceedings. The learned counsel further submitted that the appellants are caught by the principles of estoppel by standing by, that by their conduct they have elected to be bound by whatever decision that came out of the court at the court below, they cannot be heard to complain that they were not party to the suit at the two lower courts.

He then cited the case of: – Wytcherly v. Andrews (2) (1871) 1.r. 2 p AND d 327 AT 328. This principle was adopted in the case of Nana Ofori Atta 11 of Adan Sethe for the stool of Adeanse (1957) 3 All ER 559 at 561; also is the case of Gbadamosi v. Dairo (2001) 6 NWLR (Pt.708) 137 at 167.

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Learned counsel submitted that an Order cannot be made in the absence of a party if he is a necessary party to the action, it is only on that ground that the non-joinder of such party may affect the competency of the matter, and in the instant case, what is salient is that the action of the 1st – 3rd respondents was commenced before the conduct of the local government election so the appellants could not have become necessary parties as the only body whose conduct was being complained about by the 1st -3rd respondents before the Trial Court was the 4th respondent and not any contestant who was also victim of such illegality. It was his contention that the appellants would have been relevant were the case to be one challenging the result of an election in which the 1st – 4th respondents actually participated and such action could only be filed at the election petition Tribunal. He further contended that if the appellants were interested parties, they ought to have joined the action from onset as they were aware of the pendency of the suit. It does not therefore lie in their mouth to say that they ought to be joined ab-initio, before an order can be made that may affect their interest. Counsel cited the cases of: (i) Alashe v. Ilu (1964) 1 All NLR 390 at 396. (ii) Ibrahim v. Mohammed (2003) 4 NWLR (Pt. 437) 453 at 456. (iii) Udeorah v. Nwakenobi (2003) 4 NWLR (Pt. 811) 613 at 672 – 673.

On the issue of fair hearing, learned counsel submitted that a person who stands by allowing another to champion his cause cannot complain of a breach of his right to fair hearing, in fact, he participated in the legal tussle by proxy; it would amount to a scandal to the administration of justice if the appellants are allowed to hide under the cloak of fair hearing to upturn a proceeding of which they were fully aware of but chose to stand by.

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It was further submitted that this is a pre-election matter arising out of a Local Government election; the 1st – 3rd respondents challenged the validity of a State law that provided for a 21 day notice only to all the parties in preparation for the election. This is a matter of procedure which falls within the ambit of the powers of the National Assembly to legislate on and that the appropriate provisions for determining the length of notice due to all parties is section 31 of the Electoral, Act, 2006.

On issue No 2, the learned counsel submitted that by virtue of items 11 and 12 of the second schedule to the 1999 Constitution it is the National Assembly that is empowered to make laws for the entire Federation with respect to the registration of voters and the procedure regulating elections to a local government council. Even though a House of Assembly of a State may make laws with respect to election to a local- government council but such a law must not be inconsistent with any law made by the National Assembly. Learned counsel submitted that items 11 and 12 of the concurrent legislative list have been given Interpretation by the Supreme Court in the case of Attorney-General, Abia State v. Attorney-General of the Federation (supra).

Learned counsel to the respondents referred to the judgment of the Trial Court wherein it was held that the power of the Osun State House of Assembly to make laws for the procedure for the conduct of election into Local Government Council, is subject to the Electoral Act 2006, he then further submitted that that court somersaulted when it proceed to hold that section 10 of the Osun State Electoral Law 2002 which stipulates 21 days notice before the holding of election is not inconsistent with section 31 of the Electoral Act 2006 which provides 150 days notice before the day appointed for the holding of an election because what is required is notice and not the magic word “150 days.

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Learned counsel reproduced section 10 of the Osun State Electoral Law 2002, section 31 and 121 of the Electoral Act, 2006 and submitted that the appellants deliberately ignored this courts decision in Attorney-General Abia State v. Attorney-General of the Federation (supra).

Further submissions of the respondents counsel on these points were as submitted in the brief of arguments of the first appeal which has been set out earlier in this judgment. The appellants filed a reply brief to the respondents’ brief of argument.

On the issue of estoppel by standing by learned counsel submitted that the respondents’ counsel over looked an affidavit – evidence that was canvassed, unopposed at the court below when the appellants sought leave to appeal as parties interested. It was his contention that it was at that stage that the argument would have been opened to the respondents to dispute the lack of awareness and / or knowledge of the appellant on the existing suit. It was the learned counsel’s submission that since the respondents did not raise the awareness of the appellants on the existence of the pendency case, they are taken to have waived whatever right they have to complain on the point, learned counsel then cited the cases of: (1) Ariori v. Velemo (1983) 1 SCNLR, 1;

(2) Fawehinmi Construction Company Ltd. v. Olibu (1995) 6 MLR (Pt. 553 ) 171 at 191.

Learned counsel again submitted that issue of necessary parties is a fresh issue that was not agitated before the court below. It is therefore not open to the parties in an appeal to raise fresh issues without seeking the leave of court before or in this court. The case of : Ijale v. Leventis and company (1959) SCNR 157; (1959) 4 FSC 108; was cited.

Learned counsel further submitted that all arguments about joinder or non-joinder as necessary parties are issues that are properly domiciled with the court below and having not raised same at the court below, the doctrine of waiver will operate against the respondents.

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The central issue in the first appeal is whether section 10 of the Osun State Electoral Law 2002 is not void, null and unconstitutional in view of the provisions of section 31 of the Electoral Act 2006. The earlier law provides for a 21 days notice to be given before the elections to the Local Government Councils in Osun State, while the latter provided for 150 days notice to the day of the poll.

Section 121, 122 of the 1999 Constitution of this country and items 11 and 12 of the second schedule to the 1999 constitution have been referred and digested by the learned counsel to the parties in order to resolve this issue. My Lords, it will be necessary at this point to set the provisions of the statutes mentioned above:-

Section 10 of the Osun State Electoral Law 2002 provides as follows:-

“1. Not less than 21 days before the date specified for holding of an election under this Law of the Electoral commission shall, through the Chief Electoral Officer of the State publish in the State, 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.”

Section 31 of the Electoral Act, 2006 provides:-.

“1. The Commissioner shall not later than 150 days before the day appointed for holding of an election under the 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.

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3. In the case of a by-election, the Commission shall, not later than 14 days before the date appointed for the election, publish a notice stating the date of the election.”

Section 121 of the Electoral Act, 2006 provides as follows:-

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

Section 122 of the Electoral Act, 2006 provides as follows:-

“(1) If after the expiration of time for the delivery of nomination papers and the withdrawal of candidates for election of Councillors under this Act only one candidate remains duly nominated, that candidate shall be declared returned unopposed.

(2) If after the expiration of time for the delivery of nomination papers and the withdrawal of candidate for election of Counciliors under this section more than one candidate is duly nominated, a poll shall be taken in accordance with the provisions of this Act.

(3) Where at the close of nomination for electi6n to the office of Chairman, only one candidate:-

(a) has been nominated; or

(b) remains nominated by reason of disqualification, withdrawal, incapacitation, disappearance, or death of the candidates, the State Independent Electoral Commission shall extend the time for nomination by 7 days:PROVIDED that where after the extension only one candidate remains validly nominated, there shall be no further extension

Paragraphs 11 and 12 of the Second Schedule to the 1999 Constitution Provides :-

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

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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,”

It is worthy of note that Section 31 of the Electoral Act 2006 is under part IV dealing with “PROCEDURE AT ELECTION,” while section 121 and 122 of the Electoral Act 2006 are under PART VII dealing with “PROCEDURE FOR LOCAL GOVERNMENT COUNCIL ELECTION.” It is therefore crystal clear that Sections 31, 121 and 122 of the Electoral Act deal with the procedure for the conduct of the Local Government election.

The marginal note to sections is a good guide to knowing the intention of the law makers. Marginal notes are useful in considering the purpose of a section and the mischief at which it is aimed. See: The lead judgment of Eso JSC (as he then was) in Olaiya v. Atagbe (1953) 2 SCN R35 at 57.

It is for these reasons I reject the submissions of the learned senior counsel to the appellants in the second appeal that “procedure mentioned in paragraph 11 of the second schedule to the 1999 Constitution relate only to manual that prescribed procedure for accreditation of a polling station, and conduct of polling officers at such station; it is my view and I so hold that the procedure for an election includes the timing and notice to be given for the conduct of an election

The next question is to determine whether the National Assembly has the power to make laws for the procedure for the conduct of the Local Government council election.

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The Trial chief Judge in his judgment found as follows:-

“By virtue of the combined provisions of paragraphs 11 and 12 of the second schedule to the 1999 constitution and section 121 of the Electoral Act the powers of Osun State House of Assembly to make laws for procedure for the conduct of election into Local Government Councils is subject to Electoral Act, 2006.”

The lower court affirmed the finding of the trial court stated above when it held thus:-

“Item 11 empowers the National Assembly to make laws for the Federation in respect of the procedure to regulate elections to a local government council, while item 12 empowers a House of Assembly from making laws with respect to the same local government council, in addition to but not inconsistent with any law made by the National Assembly has enacted a law on a subject, it is enough for such law to prevail over the law passed by a State of House of Assembly, talk less of where there are defunct previsions made in the constitution in situation where there is inconsistency between the two laws. The two legislative bodies may make laws concerning the local government council election but the catch is that the State law must not be inconsistent with any law made by the National Assembly. Where there is inconsistency the state law is void to the extent of the inconsistency.

My Lords, I completely agree with the findings of the two lower courts. His Lordship, Uwais CJN (as he then was) held in the case of Attorney-General Abia State v. Attorney-General of the Federation (2002) 17 WRN 1 at 99 as follows:-

“I agree that where the doctrine of covering the field applies, it is not necessary that there should be inconsistency between the Acts of the National Assembly. The fact that the National Assembly has enacted a law on the subject is enough for such law to prevail over the law passed by a State House of Assembly but where there is inconsistency, the state law is void to the extend of the inconsistency'”

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The law is rather clear and un-ambiguous that by virtue of the provisions of section 121 of the 1999 constitution and paragraph 11 and 12 of the second schedule to the 1999 constitution, the National Assembly has the powers to make laws to regulate the procedure for the conduct of election to the Local Government Council. Whereas it is the State House of Assembly that has the legislative powers to make laws with respect to matters relating to or connected with elections to the office of chairman or vice chairman of local government council in that State or the office of councillors therein. As I have earlier held in this Judgment that the timing and extent of the notice to be given for the conduct at the poll forms part of the ‘procedure for misconduct of the local government election which powers have been vested in the National Assembly.

It therefore follows that the State House of Assembly has no power to make laws on the subject matter, unless, if it makes laws to conform with the provisions of the Act passed by the National Assembly. See: Attorney-General Abia State v. Attorney-General of the Federation (2002) 6 NWLR (Pt. 763) 246. I therefore hold that the Osun state House of Assembly has no legislative powers to legislate on the procedure regulating elections to a local government council, the issue of notice inclusive, if it must make law it has to be in conformity with the provisions of section 31 of the Electoral Act, 2006. The lower court in the resolution of this issue held as follows:-

“In my considered opinion, the provisions made as to the period of notice before the election in section 10 of Osun State Electoral law is inconsistent with section 31 of the Electoral Act 2006, contrary to the holding of the Trial Court. If anything less than 150 days is acceptable, certainly the object of the provision in section 31 would have been defeated.

P.31

The failure to comply fully, I would say, has occasioned a miscarriage of justice as the number of days has far been bridged 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.”

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 15th December, 2007 is not only invalid, but also null and void.

The learned senior counsel has picked quarrel with the lower court finding that reversed the findings of the Trial Court that there was valid notice given by the appellant for the conduct of the local government council elections. All the submissions of the learned senior counsel on this point are completely misconceived and of no moment. The finding of the Trial court was not only perverse but also not based on the evidence in the record. The only proved notice of poll given by the 1st appellant was exhibit A which gave 21 days notice contrary to the provisions of section 31 of the Electoral Act 2006. It is therefore clear that no valid notice of poll, as required by section 31 of the Electoral Act, 2006, was given by the 1st appellant.

An appellate court would not ordinarily interfere with the findings of a lower court, unless where such findings are perverse and not based on the evidence before it. Where a Trial court had failed to consider and evaluate evidence adduced by both parties to a dispute on certain relevant issue, the appellate court has the right to consider and evaluate that evidence and to make necessary findings, See: Abdulharim v. Anazodo (2006) 11 NWLR (Pt.992) 29 Closely related to the above issue of the jurisdiction of the lower court to make the Orders it made.

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The arguments of the learned senior counsel to the appellants are two fold:-

(a) that the respondents in their notice of appeal had abandoned reliefs 2-5 and that there was no application made by them to amend at the lower court, and

(b) that the reliefs 6-7 were not claimed by the respondents, hence the lower court has no jurisdiction to make them, as court would not grant a relief not claimed by a party . This brings us to the question of what is an appeal?

An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. It is a complaint against the decision of a trial court before the lower court. Thus, in the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a person. See: NDIV v. SBN Plc (2003) 1 NWLR (Pt- 801) 311, Oredoyin v. Arowolo (1984) 4 NWLR (Pt. 114) 172; Babolola v. The State (1989) 4 NWLR (Pt. 115) 264, Jumbo v. Bryanko Int. Ltd. (1985) 6 NWLR (Pt.403) 545; and Ngige v. Obi (2006) 14 NWLR (Pt.999) 1.

The power of the Court of Appeal with respect to the determination of appeal before it is by way of re-hearing, the word rehearing in this context means a hearing on printed records by the re-examining the whole evidence both oral and documentary tendered before the Trial court and forwarded to it. It means an examination of, the case as a whole. The Court of Appeal is entitled to evaluate the evidence and may reject conclusions of the Trial Judge from facts which are not perverse. In other words, the appellate court is entitled to exercise all the powers of a court of first instance,. See: Inakoju v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 268 and Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 639. Section 16 of the Court of Appeal Act.

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In the instant case, reliefs 2-5 contained in the Originating Summons were dismissed by the Trial court and provoked this appeal. It is clear from the Notice of Appeal that the respondents appealed against the decision of the Trial court to the lower court.

The lower court has the power to re-hear the case by examining of the evidence, both oral and documentary, as contained in the printed record in order to determine whether the lower court was right in refusing reliefs 2-5 as contained in the originating summons. It is my considered view that the lower court rightly exercised its powers by re-hearing the case presented before it and came to the right conclusions in grating reliefs 2-5 as contained in the originating summons which were dismissed by the Trial court.

Concerning Orders 6-7 granted by the lower court, it should be noted that the Trial court gave its judgment on the 14th December, 2007, while the respondents hurriedly conducted the election in question on the 15th December, 2007. While the notice of appeal was filed on the 24th December, 2007.

My Lords, of what benefit will it be to the respondents if only reliefs 1-5 are granted without any consequential Order to revert to the status quo, ante, hearing earlier held that the election held on the 15th December, 2007, was invalid, illegal and unconstitutional? It would only amount to incredulous victory for the respondents, who have been pursuing this case right from the trial to this court. With tremendous respect, I would follow the wisdom’ adopted by this court in the case of Amaechi v. INEC (2005) 5 NWLR (Pt. 1080) 227 at 345 per Musdapher JSC who adumbrated the legal position as follows:-

“The relief granted to the appellant even if not asked could under the circumstances of the facts of this case amount to a consequential relief. It is the law even where a person has not specifically asked for a relief from a court, the court has the power to grant such relief as a consequential relief-

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A consequential Order must be one made giving effect to the judgment which if follows. It is not an Order made subsequent to a judgment which it follows. It is not, an Order made subsequent to a judgment which derails from the extraneous judgment or cautions matters. It is settled law that court can Order an injunction even if it is not specifically claimed but appears incidentally necessary to protect established rights. See: Afolagbe v. Shorun (1985) 4 SC (Pt.1) 250L; (1985) 1 NWLR (Pt.2) 360. Okupe v. F.B.I.R (1974) LNMLR 422; Liman v. Mohammed (1999) 9 NWLR (Pt.617) 116.” At page 394, my learned brother Onnoghen JSC restated that legal position as follows:- : “A consequential Order is one giving effect to the judgment which it follows; it is not an order made subsequent to a judgment, which detracts from, the judgment or contains extraneous matters- See: Obayagbona v. Obazee (1972) 5 SC 247. In Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 this court held that where a person has not specifically asked for a relief from trial court, a trial court has power to grant such a relief as a consequential relief. See: Okupe v. F.B.I.R (1974) 1 All NLR 314.” His Lordship Oguntade JSC who read the lead judgment summed up the position of the law at page 315 as follows:- “Am I now to say that although Amaechi has won his case, he should go home empty handed because elections had been conducted into the office? That is not the way of the court. A court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heaven fall. The truth of course is that when justice has been done, the heavens stay in place. It is futile to merely declare that it was Amaechi and not Omehia that was the candidate of the P.D.P what benefit will such a declaration confer on Amaechi?” I will follow the footsteps of my learned brother to do justice in this case.

P.35

Reliefs 6-7 granted by the lower court are mere consequential Orders to give effect to reliefs 1-5 granted

Merely granting reliefs, 1-5 without more would confer no benefit on the respondents. I therefore hold that the lower court was right in granting reliefs 6-7. With the resolution of this issue, it is my view that the lower court was right in setting aside the election conducted on the 15th December, 2007 being and done when section 10 of the Osun State Electoral Law 2002 has been taken care of.

Apart from the fact that the notice was not duly carried out in compliance with the provision of section 31 which regulates the procedure for the conduct of the local government council elections, the issues in this matter involves a matter of Public interest as opposed to an individual right.

The last issue left undecided is the issue of the alleged breach of the fundamental human right to fair hearing of the appellants in the second appeal. The gist of the argument of the learned senior counsel to the appellants is that order 6-7 which set aside the erection conducted on 15/12/2007 directly affected the appellants, who were the beneficiaries of the said election as the elected chairmen of the local government councils. And since they were not parties to the case, the Orders as granted have occasioned grievous miscarriage of justice and a breach of their fundamental right to fair hearing. The submissions of the learned senior counsel and the authorities cited ordinarily would have been sufficient for the setting aside of the whole proceedings. But the question is where were the appellants since the inception of this case at the trial court? The appellants were aware of the pendency of this case and the delivery of the judgment on 14/12/07 which paved way for the conduct of the election on 15/12/2007.

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In fact all other political parties boycotted the election. After “winning” the elections conducted they decided to stand-by and watch the outcome of the case at the lower court. It was only after the appeal succeeded with the setting aside the election, they then realised that they have interest in the matter and sought the leave of Court of Appeal as interested parties. Courts, indeed this court, as a court of last resort, will not aid an indolent. It does not lie in their mouth to complain of breach of their fundamental human rights to fair hearing having by themselves stayed away from the court and allowed the appellants in the first appeal to fight their battle for them. See: Alaghe v. Mohammed (2003) 4 NWLR (Pt.437) 45 at 456; and Udeorah v. Nwakobi (2003) 4 NWLR (Pt.811) 643 at 672.

I therefore hold that the appellants’ rights to fair hearing have not in anyway been breached at all.

Finally my Lords, what I have been labouring to state all along is that I hold that these appeals lack merit, same are’ consequently dismissed. Costs shall be in the cause.

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