Osun LG Crisis: Senior Lawyers Disagree on Interpretation of Appeal Court Judgement on Tenure of APC Chairmen

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Did the Appeal Court order the reinstatement of the sacked 30 local government council chairmen in Osun State to justify last Saturday’s election in the state? This is the legal and political conundrum the state has found itself, a situation further compounded by conflicting interpretations of the judgement by legal experts, including senior advocates of Nigeria (SANs)

TELL recalls that the Attorney General of the Federation, AGF, Lateef Fagbemi, in his legal advisory, had appealed to Governor Ademola Adeleke to shelve the scheduled election until the expiration of the tenure of the chairmen based on the appeal court judgement. Fagbemi had argued that any election conducted while the tenure of the current LG officials subsisted amounted to an illegality and nullity. The chairmen, with the backing of the Inspector General of Police, Kayode Egbetokun, had forcefully occupied their offices.

Countering Fagbemi, the attorney general of Osun State, Oluwole Jimi-Bada, insisted that the appellate court had sacked the chairmen elected in 2022 in the twilight of the Governor Gboyega Oyetola’s administration and there was no going back on the election.

 Governor Adeleke, ignoring the AGF’s advice, in a statewide broadcast on the eve of the election, directed OSSIEC to proceed with the poll, insisting that the rule of law must be allowed to prevail in the matter.

The matter became messier following a judgement of the Osun State High Court giving the Osun State Independent Electoral Commission, OSSIEC, the nod to hold the election.

The intervention of legal experts in the matter however has not helped matters. Rather than solving the maze, their divergent views and interpretations have only further muddled the political waters in Osun State and confused the ‘unlearned’ seeking to make sense of the different judgements in the local government crisis.

Among legal luminaries who gave their perspectives on the matter are Mike Ozekhome, senior advocate of Nigeria, (SAN) and a cerebral professor of Constitutional Law; Jibrin Samuel Okutepa, (SAN) Monday Ubani, (SAN) a former Vice President of the Nigerian Bar Association, (NBA); and Kayode Mogbojuri, lawyer and civil rights activist.

While Ozekhome and Okutepa  were unequivocal that the chairmen had been sacked, Ubani and Mogbojuri aligned themselves with the position of the AGF, arguing that there was no vacancy in the councils to be filled as they were restored by the Appeal Court.

 Dissecting the various court judgements on the Osun State legal quagmire in an essay titled “Is the Judiciary Complicit in the Osun State Local Government Debacle?”, Ozekhome concluded that the Appeal Court never reinstated the 30 local government chairmen elected on the platform on the ruling All Progressives Congress, (APC) and described the forceful takeover of their offices as  “brigandage and crude resort to self-help”. He said, “it is not only illegal but also constitutes a contemptuous disregard of a valid and subsisting court judgement”.

The erudite lawyer said “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 judgement 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”.

Reviewing all the judicial decisions in the three cases – the Federal High Court judgement in APP v. OSIEC (Suit No. FHC/OS/CS/75/2022); the dismissal of APC’s subsequent appeal and the finality of the APP judgement; and the PDP case and the Court of Appeal’s technical dismissal of same, Ozekhome submitted that “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”.

He explained that in the case filed by the Action Peoples Party (APP), “the Federal High Court (FHC) delivered a landmark judgement that rendered the October 15, 2022, Osun State 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”.

On the judgement in the PDP case which the APC is latching on to forcefully reoccupy their offices, Ozekhome 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!”

On the other hand, he contended that “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”.

Okutepa, who is on the same page with Ozekhome, said he took his time to read the judgement of the Court of Appeal, and “In the 53-page judgement that I have read, there is nowhere an order was made by the Court of Appeal. There was no prayer before the Court of Appeal by any person for reinstatement. And even if there were, prayers three and four were described by the court of appeal as academic, and they ought not to go into it”.

Okutepa who spoke on Arise TV Newsnight on Tuesday, challenged any lawyer “to come here and point to me where in the Court of Appeal judgements, the two that I have read, that anybody was ordered to be reinstated”.

Giving the genesis of the legal battle, Okutepa recalled that “Sometimes in 2022, two political particles, PDP and APP went to court to challenge the arrangements for the local government election. There were two separate suits. PDP’s case was filed before the promulgation of the Osun State Local Government Election Law of 2022.

“In both of these cases, the Federal High Court decided and held that the process, procedure, leading to the election conducted by the then government of Governor Gbenga Oyetola was flawed. It declared the election null and void and of no consequences and removed the persons who were purported to have been elected through that flawed election. Indeed, the case was pending in court when they said the election was conducted and under the disciplinary power of the court, the court saw that that conduct was an affront to the rule of law; the processes pending before the court, and so in both two cases, the court nullified and ordered that those who were purportedly elected, vacate the office.

On the appeals arising therefrom, Okutepa said the appellate court dismissed the appeals files by the APC and the Allied Peoples Movement (APM) against the Federal High Court’s decision nullifying the 2022 council elections.

He further explained that in the case involving the APC, the court of appeal struck out the case for lack of jurisdiction, while that of the APM was dismissed because the appellants “went to sleep. They did not compile records of appeal, did not file brief of argument”.  

Okutepa therefore concluded that “the judgement of the Federal High Court, which was appealed against, but which appeal was not pursued, and which appeal had now been dismissed, remains the judgement of the court”.

He disagreed with the allegation that Governor Adeleke cherry-picked which judgement to obey.

Okutepa said, “it will be uncharitable to say that the Osun State government choose-and- pick which to follow because if there was any order to even follow, there was an order from what I read, from the state high court commanding the Osun State Independent Electoral Commission to go on and conduct the election.

“For me, that judgement is in line with the decisions of the Supreme Court that at any particular time, the local government must be democratically ran and not caretaker. So, I do not see how the judgement that command’s obedience to constitutional provision can be described as choose and pick”.

Countering the positions of fellow learned silk, Monday Ubani, former vice president of the Nigerian Bar Association, NBA, was emphatic that the Appeal Court validated the election of the chairmen. “So, it then means that if that election is declared to be valid, those people who were already there should be able to complete their tenure because the issue of their tenure is guaranteed”, Ubani said, adding, “the Supreme Court has actually laid all these to rest. One, on the issue of financial autonomy of local governments; then the issue that local governments from now onward must be by democratically elected officials”.

Also disagreeing with the order by the Osun State High Court directing OSSIEC to proceed with the election, Ubani posited that “Now, if there is any doubt whatsoever with the court of appeal decision, there is still the Supreme Court in order to get the final pronouncement. “But the point is that the court of appeal has given a decision, whether rightly or wrongly, it binds all other courts that is below. That is the precedence in the Nigerian legal system.

“You have no right whatsoever to take a matter that had been decided by the court of appeal to a lower court to give you a different decision that suits you”.

Contrary to the Ozekhome’s position favouring a fresh election involving all the parties, Ubani insisted that “There shouldn’t have been an election until those ones their elections have been validated exhaust their tenure. If you don’t do it that way, you are creating crisis”.

Toeing the same line of argument, Kayode Mogbojuri, a lawyer and civil rights activist in an interview on Tuesday on Arise Television ‘Morning Show’, said what happened in Osun State “is a disgrace to Nigerians and is a disgrace to people who are lovers of justice and who want decency in our society and in our democracy”.

Though Magboro struggled to pinpoint the portion of the Appeal Court judgement that reinstated the chairmen, he insisted that “It gave orders and reliefs that were unambiguous to the extent that one of the things that were mentioned is that the people that were purportedly sacked should be returned to office”. Claiming to have read the judgement, Magboro was emphatic that there was nothing contentious about the appellate court’s judgement, stressing that “only that people have chosen to go by what pleases them”.

When confronted with the two appeal court judgements sent to one of the anchors which was read out to him and which did not favour the APC, he claimed that he didn’t have the full judgement with him but contended that “Whoever wants to be mischievous would have something to hang on”.