RESPONDENTS’ BRIEF OF ARGUMENT
1.01 This is an appeal against the judgment of the Osun State High Court per F. O. Ogunsola the Chief Judge delivered on the 14th day of December, 2007.
1.02 The Plaintiffs/Appellants are registered political parties challenging the constitutionality of the action of the Osun State Independent Electoral Commission in relation to the Local C30vernment election schedule to take place on the 15th December, 2007.
1.03 The Appellant filed an originating summons on the 8th day of November, 2007 where it sought to restrain the 1st Respondent from conducting the Local Government election on the ground that the statutory notice stipulated in the Electoral Act 2006 had not been in the circumstances.
1.04 The Respondents in their counter-affidavit claimed that they had given notice of the election to the representatives of the political parties as far back as May 2007 which was pasted on the office of the 151 Respondents Notice Board.
1.05 The Honourable Chief judge delivered his judgment on the 14th day of December, 2007. Dissatisfied with the judgment, the Appellants filed a Notice of Appeal on the 24th day of December, 2007.
2.00 ISSUES FOR DETERMINATION
2.01 The Respondents hereby respectfully submits for the court’s determination the following issues:
1. Whether the Honourable Chief Judge was right when he held that Section 10 of the Osun State Electoral Law 2002 is not inconsistent with Section 31 of the Electoral Act 2006 (Grounds 1 & 3).
2. Whether the finding of the Lower Court that the notice of election as given by (he 1 st Respondent in May, 2007 can be justified having regard to the evidence led by the parties (Grounds 2 & 4).
3. Whether the dismissal of reliefs 2, 3, 4, 5 and 6 in the Originating Summons by the Chief Judge is not against the weight of evidence (Ground 5).
3.00 STATEMENT OF FACTS
3.01 Facts relevant to the determination of this appeal may be summarised thus:
3.02 -The Appellants / Plaintiffs filed an originating summon at the Lower Court on the 8th day of November, 2007.
3.03 The 15t and 3rd Respondents/Defendant filed a Notice of Preliminary Objection on the 20th November, 2007 (page 13 of the Record). 3.04 Also the 2nd Respondent’s / Defendants also filed Notice of Preliminary Objection the 22nd November, 2007 (Page 17 of the Record).
3.05 On the 23rd November, 2007 when the matter came up, the 2nd
Defendant/Respondent’s name was struck out based on its preliminary objection which the Plaintiff’s/ Appellant did not oppose (page 58 of the Record).
3.06 By the Honourable Chief Judge ruling dated 30th November, 2007 the
Preliminary Objection filed by 1st and 3rd Respondents was struck out.
3.07 The 1st and 3rd Respondents thereafter filed their Counter-Affidavit against
the Originating Summons and Written Briefs in opposing the Originating Summons on the in December, 2007. (Pages 30 and 48 of the Record).
3.08 Reply to Counter-Affidavit filed in Court on the 10th day of December,
2007 and same was served in Court before the arguments was taken
(Pages 54-55 Record of Proceeding) which Reply contains general denial
of the facts as contained in the Counter-Affidavit.
3.09 Argument, on the Originating Summon and against were taken on the 10th
3.10 Judgment delivered by the Learned Chief Judge on the 17th December,
2007 (Page 71-81 of the Record) while the Notice of Appeal was filed on the 24th December, 2007.
4.01 Whether the Honourable Chief Judge was right when he held that Section
10 of the Osun State Election Law 2007 is not inconsistent with Section 31 of the Electoral Act 2006 (Grounds 1 & 3).
4.02 We submit that the Honourable Chief Judge was right when he held that Section 10 of the Osun State Electoral Law’ which stipulates 21 days notices before the date specified for the holding of an election was not inconsistent with Electoral Act, 20CJ6 because what is required is notice and not the magic word’ 150 days’ which may even be up to six months as borne out in paragraphs, 7, 10 and 12 of the Counter Affidavit! (Page 79 paragraphs 34’0 – 345),
4.03 As stated in the Appellants brief in paragraph 4.06, the position of the Osun State Electoral Law S, 1 0 is that:
1. Not less than 21 days before the date specified for holding of an election under this Law, 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:
4.04 Section 31 of the Electoral Act 2006 provides:
“1. The Commission shall not later than 150 days before the day appointed for holding of an election under this 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.
3. In the case of a bye-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. 11
4.05 Submit that a combine reading of 8.10, Osun State Electoral Law and ~ S.31, Electoral Act, 2006 reveals that both sections were substantially complied with in giving notices to the Petitioner/Appellant.
‘In Mathew Obakpolor V The State (1991) NWLR (Pt 165) page 113 at 198, the Supreme Court reiterated in no unmistakable terms the need to avoid undue technicalities to reading the provisions of statutes when it held that:
Hit is the paramount duty of courts to do justice and not to cling to technicalities that will defeat the ends of justice. It is immaterial that the technicalities are those that are from statutory provisions or technicalities inherent in rules of court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified … J1
4.06 We submit that contrary to the arguments and position of the Appellants, the essence of the state Law on this matter is on notice to be given and the operative words as stated is “Not less than 21 days” which apart from dwelling on technicalities, chief judge was right in his findings which with respect, we submit ought not to be tampered or interfered with.
4.07 We also wish to submit with respect that the finding of the chief judge is not perverse by any means, more so the said findings was in line with the evidence before the court and it has not been shown that the said chief judge took into account matters which ought not to have been taken into acount or shut his eyes to the obvious. Having been satisfied that the Respondents had been notified adequately and the publication in the Nigerian Tribune of 5th November, 2007 been made in abundance of caution, the stakeholders havin~1 been notified earlier on (page 80 of the Records paragraphs 360 – 375.
4.08 We further submit that the learned Chief Judge’s findings on the notices given before the election is not perverse as claimed, even more when the appellant have failed to show that it has occasioned a miscarriage of justice.
“A findings is said to be perverse when it runs counter to evidence and pleading or when it has been shown that such finding has occasioned a miscarriage of justice’.
Per Ogbuagu in Gnu V. Idu (2006) 12 NWLR (Part 995) 657 @ 686 paras. C-F
4.09 We also submit that there were abundant evidence before the court, upon which the findings of fact made by the Honourable Chief Judge relied upon and we humbly submit that the appellate court cannot interfere particularly that the said finding is supported by evidence.
Onu V. Idu (2006) 12 NWLR (pt 995) 657 R. 7 @ 673 Para E.
4.10 We further submit that the appellants have failed to show that there was a violation of Law or procedure of such proportion or magnitude that would result in the findings becoming unsustainable or there was a miscarriage of justice. See Ude V. Chinbo (1988) II NWLR (pt 577) 168.
Finally on issue No.1, we humbly urge the honourable court to uphold the findings of the Honourable Chief Judge when the said finding is supported by evidence before the Court.