Hon. Olemija Stephen Friday & Ors V. The Governor Of Ondo State & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Ondo State, Akure Judicial Division delivered on 24/6/09.

The Appellants herein were elected Chairmen of 18 Local Government Councils in Ondo State on 15/12/07. They took their respective Oaths of Office on 17/12/07. The term of office was for three years to expire on the 17/12/2010. Dr. Olusegun Agagu the erstwhile Governor of Ondo State swore them into office. On 14/4/07 elections were held into the office of the Governor of Ondo State. Dr. Agagu was returned elected by the Independent National Electoral Commission (INEC).

Dissatisfied with the declaration, Dr. Olusegun Mimiko, one of the contestants filed a petition before the Governorship/Legislative Election Tribunal sitting in Akure seeking the nullification of Dr. Agagu’s return and a declaration that he is the Governor of the State. On 25/7/08, the Election Tribunal delivered judgment in favour of Dr. Mimiko and declared him the duly elected Governor of Ondo State, having scored the highest number of valid votes cast at the 14th April 2007 Governorship election.

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

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

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

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

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

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

4. AN ORDER SETTING ASIDE the purported dissolution of the eighteen Local Government Councils legally presided over by the 1st to the 18th Plaintiffs by the 1st Defendant on the 4th day of March, 2009 on the ground that the act was unconstitutional, illegal, null and void.
5. AN ORDER OF INJUNCTION restraining the 1st Defendant from dissolving the eighteen Local Government Councils in Ondo State or terminating the three year tenure of the 1st to the 18th Plaintiffs as guaranteed under the Local Government (Amendment) Law 2007.
6. AN ORDER restraining the 1st Defendant from nominating and/or presenting to the Ondo State House of Assembly the name or names of any person(s) for the purpose of constituting or reconstituting any committee either by the name of caretaker or whatsoever name called for the purpose of administering the offices of the 1st – 18th Plaintiffs.
7. AN ORDER reinstating the 1st to the 18th Plaintiffs to their positions as Executive Chairmen of their respective Local Government Councils in Ondo State.”

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

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

2. A DECLARATION that the Plaintiffs were never duly or legitimately elected as Chairmen of the Local Government Councils in Ondo State and as such cannot lay claim to have at whatever time legally presided over the said Local Government Councils.
3. A DECLARATION that the purported elections of the Plaintiffs as Chairmen of Local Government Councils in Ondo State are null and void and of no effect whatsoever.
4. A DECLARATION that having regard to the expediencies and circumstances on ground on the assumption of office of the 1st Defendant as Executive Governor of Ondo State, the 1st Defendant was justified and entitled to take the step taken on 4th March, 2009 with respect to the administration of Local Government Councils in the state.
5. AN ORDER restraining the Plaintiffs from parading themselves as Chairmen of Local Government Councils in Ondo State and from taking any step(s) towards taking over the offices of the Chairmen of the Local Government Councils in the state and/or from doing anything capable of disrupting the smooth running and administration of the various Local Government Councils in the State.”

(See pages 16 and 17 of the record)

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

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