Osun LG crisis: No legal, constitutional basis for forceful takeover

BY FESTUS OGUN

Following the judgment of the court of appeal, Akure division, delivered on February 10 2025, there appears to be a deliberate attempt by desperate political elements in Osun state to cause a constitutional crisis and breakdown of law and order in the state. I have taken my time to read through all the judgments and the legal framework culminating in the uproar and I am convinced that setting the record straight on the true position of law is more imperative than ever.

The brief facts are that sometime in 2022, the Peoples Democratic Party (PDP) filed a lawsuit against the Osun State Independent Electoral Commission (OSIEC) and others (including the All Progressives Congress APC joined as an interested party) at the federal high court sitting in Osogbo, essentially challenging the conduct of the proposed  LG elections over non-compliance with mandatory provisions of the Electoral Act 2022. In a judgment delivered on November 25 2022, the court granted all the reliefs sought by PDP and made a consequential order nullifying the elections conducted by OSIEC on October 15, 2022, and directed all LG executives so elected to vacate office.

Dissatisfied by the judgment, the APC and others filed an amended notice of appeal before the court of appeal sitting in Akure, essentially alleging that the federal high court lacked jurisdiction to have entertained the matter and that the lower court erred gravely in law in its judgment, particularly in making a consequential order nullifying the already conducted election (a prayer not sought for by PDP).

In a landmark decision delivered on February 10, 2025, the court of appeal agreed with APC and upturned the erroneous judgment of the federal high court specifically on the basis that there is no valid originating process filed by the PDP to have conferred jurisdiction on the FHC. Consequently, the court of appeal struck out the suit at the FHC for its “incompetence” and allowed the appeal filed by the APC.

Following the court of appeal decision, a former governor of Osun and chieftain of the APC, Adegboyega Oyetola, under whose watch the October 15, 2022, local government election was conducted, urged security agencies in Osun to take action and ensure that local government officials elected on October 15, 2022, resume their duty post as soon as possible. In a meeting with the earlier sacked chairmen and councillors, the ex-governor assured them that they would return to their offices. This development has caused tension and agitation in the state, considering that another local government council election is billed to be conducted on February 22, 2025.

To be clear, the judgment of the court of appeal alone does not howsoever justify the immediate resumption of the ousted local government executives. To make a contrary argument would amount to deliberately wanting to cause mayhem and crisis in the state.

Why do I make this bold and categorical submission?

The simple answer lies in the fact that in a separate suit filed by Action Peoples Party (APP) against OSIEC and others (including APC) challenging the conduct of the local government election, the federal high court sitting in Osogbo on November 30, 2022, granted all the reliefs sought by APP and specifically nullified the election conducted on October 15, 2022, and sacked all persons occupying offices. This means that there were two judgments nullifying the Osun LG polls.

Expectedly, the APC filed an appeal against this APP judgment but failed to prosecute it. Curiously, the same OSIEC (whose conduct of the 2022 election was nullified) filed a motion on notice to dismiss the appeal filed by the APC for their failure to file and transmit records for over 23 months after their notice of appeal was filed. Now, on January 13 2025, the court of appeal rightly dismissed the appeal. The simple implication, of which, is that the judgment of the federal high court in the case filed by APP which nullified the election of October 15 2022 is valid and subsisting. It remains unchallenged and by virtue of the dismissal of the appeal filed by the APC, Oyetola and ousted executives in APC are bound to obey the valid and subsisting judgment of the federal high court which they failed to diligently challenge at the court of appeal.

The point we labour to make is that the court of appeal judgment in the PDP case does not in any way confer any right on the sacked local government officials to return to office. The court of appeal did not, in fact, determine the merit of the appeal; neither did the intermediate court make any consequential order reinstating the sacked officials. It simply determined the issue of jurisdiction and held that the federal high court lacked it.

One wonders why those beating the drums of war are shying away from the validity and somewhat finality (as of today) of the APP judgment. By failure to successfully challenge the APP judgment at the federal high court, APC’s successful outing in the appeal filed against the PDP judgment remains, to my mind, a pyrrhic victory, which confers no immediate benefit on them.

Without a doubt, the judgment in the APP’s case is unchallenged and remains valid. It is a painful narrative that we have to remind political actors in Osun state that a valid and subsisting judgment of a court which is not challenged or which was unsuccessfully challenged remains to be obeyed. The question crying profusely for an answer is this: why did the APC or any of the sacked executives not follow through with the appeal filed at the court of appeal to the point that it was dismissed?

I sincerely believe that as a country governed by laws, all parties concerned must ensure that the APP judgment must not be merely obeyed, it must be seen to have been obeyed. Anything done outside that will amount to arbitrariness taken too far. The security agencies must, therefore, restrict the temptation to follow the instructions of politicians who are hell-bent on causing a constitutional crisis in Osun state.

Considering that there is no legal basis for forceful takeover of power by the ousted local government executives, it is my respectful counsel that the APC and their members whose elections were nullified either find a way to quickly resuscitate the “dismissed” appeal (which, in my professional view is permissible and possible) and diligently prosecute their challenge against the federal high court judgment in the APP’s case or they brace up to participate in the LG election billed for next weekend.

Festus Ogun is a constitutional lawyer and managing partner at FOLEGAL, Lagos. He can be reached via [email protected]