IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ASABA JUDICIAL DIVISION

HOLDEN AT ASABA

SUIT NO: FHC/ASB/CS/87/2024

BETWEEN:

1. DENBO-DENBOFA OWEIKPODOR
2. COMRADE SHERIFF MULADE
3. ARC. SYLVESTER ADOWEI PLAINTIFFS
4. EMMANUEL IGETEI
5. MIDWEST KUKURU, ESQ
(For themselves and on behalf of the Ijaw people of
Warri North, Warri South and Warri South West
LGAs of Warri Federal Constituency of Delta State)

AND

1. INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)
DEFENDANTS
2. DELTA STATE INDEPENDENT ELECTORAL
COMMISSION (DISEC)

2ND DEFENDANT’S COUNTER AFFIDAVIT IN OPPOSITION

TO THE PLAINTIFFS’ MOTION ON NOTICE FOR
INTERLOCUTORY INJUNCTION FILED ON 6TH JUNE, 2024

I, Faith Odiase, Female, Christian, Nigerian Citizen of Block A, Plot 2, DSC Housing
Estate, Orhuwhorun, Udu Local Government Area of Delta State, do solemnly make
oath and declare as follows:

1. I am the Litigation Manager in the law firm of Ayo Asala (SAN) & Associates, the
Lead Counsel representing the 2nd Defendant and by virtue of my position, I am

1
 conversant with the facts and circumstances of this suit being facts made known to
me in the course of my official duties.

2. I have the consent and authority of both my employer and the 2 nd Defendant to
depose to this Counter Affidavit in opposition to the Plaintiffs’ Motion for
Interlocutory Injunction.

3. I depose to this Counter-Affidavit from the facts within my personal knowledge

except where otherwise stated.

4. I have read and understood the facts giving rise to the Application and the
Affidavit in Support of the Applicants’ Motion.

5. I was informed by Adjekukor Isaac Esq., Director of Legal Services with the 2 nd
Defendant through a telephone call on the 20th Day of June, 2024 at about 10:00
am, at our office at Block A, Plot 2, DSC Housing Estate, Orhuwhorun, Udu Local
Government Area of Delta State, of the following facts which I verily believe to be
true as follows, that:

a) He has read the Applicants’ Motion for Interlocutory Injunction and has
understood same.

b) Paragraphs 1,2,3,4,5,11,12,13,18,21,24 and 30 of the Affidavit in Support of

the Motion on Notice for Interlocutory Injunction are hereby denied as
untrue.

c) That paragraph 4 of the Affidavit in Support of the Affidavit in Support of

the Motion on Notice is false and hereby denied. The Plaintiffs do not have
the approval of the Ijaw speaking people of Warri North, Warri South and
Warri South-West to institute this suit on their behalf. Most of the Ijaw
speaking people in Warri North, Warri South and Warri South-West Local
Government Areas are registered and eligible voters who are anxious to vote
for their kith and kins who are also candidates for the position of Chairmen
and Councilors in the affected three Local Government Areas.

2
d) In pursuance of its statutory duties to organize and conduct election into
Local Government Areas in Delta State to elect Chairmen and Councilors,
the 2nd Defendant issued a public notice and Time-Tables for the various
stages of the processes leading to the election. A copy of the public notice
published by the 2nd Defendant in the Pointer Newspaper on 3/05/2024 is
attached herewith and marked Exhibit “A”.

e) By Exhibit A, the election into the offices of Chairmen and Councilors for
the 25 (Twenty-Five) Local Government Areas of Delta State has been fixed
for 13/07/2024.

f) Towards the preparation for the Local Government Election in Delta State
and in accordance with the extant law, the 2 nd Defendant requested from the
1st Defendant on the 24th April, 2024, the comprehensive list of registered
voters in Delta State as compiled and updated by the 1st Defendant.

g) The 1st Defendant acceded to the request of the 2nd Defendant by making
available to the 2nd Defendant, comprehensive list of voters in Delta State.
The 2nd Defendant has been using the said list of registered voters in
planning for the conduct of the election which is now at an advanced stage.

h) I know as a fact that Political Parties who are interested in participating in

the Local Government Election in Delta State, have conducted their
primaries election, nominated and submitted the list of their Candidates for
the various offices to the 2nd Defendant.

i) I also know as a fact that the various Political Parties and their candidates
are at the stage of campaigning to the electorates to vote their candidates.

j) The 2nd Defendant has spent a huge amount of money in the preparation for
the election including mobilization, printing of election materials and
recruitment of ad-hoc staff which is at the advance stage having been fixed
for 13/07/2024 including election into Warri South, Warri North and Warri
South-West Local Government Areas.

3
k) I know as a fact that since the judgment of the Supreme Court in Appeal No.
S/413/2016 Between HON. GEORGE U. TIMINIMI & 9 ORS v. INEC
delivered on 2/12/2022, the 1st Defendant has conducted election in Warri
South, Warri North and Warri South-West Local Government Areas without
any challenge by way of litigation from the Plaintiffs. Those elections
include the General Election conducted in 2023 to elect the President,
Governor, Senators, House of Representatives members and members of the
House of Assembly especially for Warri North, Warri South and Warri
South-West State Constituencies in Delta State.

l) I also know as a fact that sometimes in late 2022, the Independent National
Electoral Commission (INEC), in exercise of her duties and/ or functions
under the Electoral Act and the Federal Constitution, created additional 2239
polling units across the State to make a total of 5863 polling units in Delta
State. In compliance with the decision of the Supreme Court in Supreme
Court in Appeal No. S/413/2016 Between HON. GEORGE U. TIMINIMI
& 9 ORS v. INEC delivered on 2/12/2022, the 1st Defendant is in the
process of carrying out a fresh delineation of polling units in Warri North,
Warri South and Warri South-West Local Government Areas. The exercise
is a tedious one involving consultation and carrying along all the different
stakeholders and not a one-day affair that can be achieved within a short
period.

m) The 2nd Defendant state that the Plaintiffs do not have the financial capacity
to compensate the Defendants for the monetary damages that will surely
arise from the disruption of the election and its political consequences which
would arise if this application is granted.

n) The 2nd Defendant state that she will suffer more damages and
inconveniences of this Application is granted which will not only adversely
affect the interest of the Political Parties and their candidates and that of the
electorates particularly in Warri North, Warri South and Warri South-West
Local Government Areas of Delta State.

o) The Plaintiffs will not suffer any harm if this Application is refused by this
Honourable Court and it will be in the interest of justice if this Application is
refused.
4
6. I know as a fact that the Plaintiffs can be adequately compensated in monetary
damages if they succeed with the substantive suit.

7. I depose to this Counter Affidavit in good faith, believing its contents to be true
and correct and in accordance with the Oaths Act.

____________________

DEPONENT

Sworn to the Federal High Court, Asaba

Registry, This …………. Day of ………………… 2024

BEFORE ME

COMMISSIONER FOR OATHS

5
 IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ASABA JUDICIAL DIVISION
HOLDEN AT ASABA

SUIT NO: FHC/ASB/CS/87/2024

BETWEEN:

1. DENBO-DENBOFA OWEIKPODOR
2. COMRADE SHERIFF MULADE
3. ARC. SYLVESTER ADOWEI PLAINTIFFS
4. EMMANUEL IGETEI
5. MIDWEST KUKURU, ESQ
(For themselves and on behalf of the Ijaw people of
Warri North, Warri South and Warri South West
LGAs of Warri Federal Constituency of Delta State)

AND

1. INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)
DEFENDANTS
2. DELTA STATE INDEPENDENT ELECTORAL
COMMISSION (DSIEC)

WRITTEN ADDERSS IN SUPPORT OF THE 2ND DEFENDANT’S

COUNTER AFFIDAVITIN OPPOSITION TO THE PLAINTIFFS’
MOTION ON NOTICE FOR INTERLOCUTORY INJUNCTION
FILED ON 6th JUNE, 2024
1. INTRODUCTION

1.1 This is the 2nd Defendant Written Address in opposition to the Plaintiffs’ Motion
on Notice for Interlocutory Injunction filed on the 6th day of June, 2024.

1.2 The Applicants in this case filed a Motion on Notice on the 6 th day of June, 2024
seeking to restrain the 1st Defendant from making available to the 2nd Defendant,
6
 the register of voters in respect of the Polling Units in Warri North, Warri South
and Warri South-West Local Government Areas of Delta State to conduct the
Local Government Election fixed for the 13th of July, 2024. By the second
prayer on the motion paper, the Applicants are also seeking for an order
restraining the 2nd Defendant from taking any further step or relying on the 2 nd
Defendant’s register of voters or polling units to conduct Local Government
Council Elections into Warri North, Warri South and Warri South-West Local
Government Areas of Delta State.

1.3 In opposition to the Plaintiffs’ Application, the 2 nd Defendant filed a 7-

paragraphCounter-Affidavit. The 2nd Defendant relies on all the depositions in
the Counter-Affidavit in urging your noble Lord to dismiss this Application with
substantial costs. Also attached to the said counter affidavit as exhibit A is the
Public Notice for the election.The 2 nd Defendant relies on the said exhibit in
urging my noble lord to refuse the Plaintiffs’ Application

2. ISSUE FOR DETERMINATION

The sole issue for determination before this Honourable Court may be
formulated thus;

Whether the Applicants have made out a case for the grant of this
Application for Interlocutory Injunction?

3. ARGUMENT ON THE ISSUE

3.1 We humbly submit that the Applicants failed to make out a case for this Court
to grant this Application seeking for Interlocutory Injunction which by its
nature, essentially seeks to restrain the 2 nd Defendant from carrying out her
statutory duties to conduct Local Government Elections in Delta State.

7
3.2 It is trite that the grant of an Application of this nature calls for the exercise of
the discretionary powers of this Court. This discretion must however be
exercised judiciously and judicially based on the circumstances of the case. In
the particular circumstances of this case, the judicious and judicial exercise of
the discretion of this Court is to refuse the Applicants’ application seeking to
restrain the 2nd Defendant from carrying out her statutory duty in conducting
election into the various Local Government Councils, especially Warri North,
Warri South and Warri South West LGAs in Delta State.

A Court Cannot Restrain a Statutory Body From Performing its

Statutory Duties

3.3 The first reason for opposing this Application is that it seeks to restrain the 2 nd
Defendant from carrying out her statutory duties. The law is trite that a Court
cannot restrain a statutory body, like the 2 nd Defendant, from performing her
statutory duties. We most humbly refer my lord to the case of EFCC v.
IGBOERUCHE & ORS (2019) LPELR-47268 (CA). There is no doubt that
the 2nd Defendant is a creation of statuteby virtue of Delta State Independent
Electoral Commission Law (2017). Section 9 (1)of the DSIEC Law
(2017)specifically empowers the 2nd Defendant to organize and conduct
election into the offices of Chairmen and Councilors in the 25 (Twenty-Five)
Local Government Areas of Delta State.

3.4 The present Application, especially the second prayer, is aimed at restraining
the 2nd Defendant from going ahead with the Local Government Election
especially in Warri North, Warri South and Warri South-West Local
Government Areas. It may be necessary for the purpose of emphasis to
reproduce prayer two as contained in the motion paper which prays thus:

8
 2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the
2ndDefendant/Respondent from taking any further steps or relying on the 1 st
Defendant’s register of voters of polling units to conduct Local Government
Council elections into Warri North, Warri South and Warri South-West Local
Government Councils of Delta State, pending the hearing and determination of
the originating summons filed in this suit.

3.5 From the above prayer, the Applicants are urging this Honourable Court to put
on hold, the process of the conduct of Local Government Elections in Delta
State and further seeks to restrain the 2 nd Defendant from relying on the 1st
Defendant’s register of voters of polling units in the affected 3 (three) Local
Government Areas. If this prayer is granted, the implication is that the
2ndDefendant will be acting contrary to the provision of Section 98 (2) of the
Electoral Act, 2022, which mandatorily requires the 2 nd Defendant to use the
register of voters compiled by the 1st Defendant as well as the polling units
established by the 1st Defendant in the conduct of the Local Government
Election pursuant to Section 150 (1) and (2) of the Electoral Act, 2022. By
virtue of Section 150 (3), any election to the Local Government Area in Delta
State that is conducted by the 2 nd Defendant in violation of Section 98 (3) of
the Electoral Act shall be null and void.

3.6 On this score, we urge my lord to refuse this Application which, if granted, will
interfere with the statutory powers of the 2nd Defendant to conduct Local
Government Elections in Delta State and also encourage the 2 nd Defendant to
breach the provision of Section 98 (3) of the Electoral Act, 2022which
mandatorily requires the 2nd Defendant to make use of the voters register
compiled by the 1st Defendant in the conduct of the Local Government
Elections in Delta State.

9
3.7 At this stage, it may be necessary for us to reiterate the guiding principles
relevant to the grant or refusal of an application for Interlocutory Injunction. In
this regard, we most humbly refer my lord to the case of George & Ors v. De
Stefani (2022) LPELR-57274(CA)where it was held thus:

"The Apex Court has evolved principles that will guide the Courts in their
decision on application for interlocutory injunction. In hearing an
application for interlocutory injunction, the Court is called upon to exercise
an equitable jurisdiction in the light of facts presented before it by the
applicant, as it is not granted as a matter of course. The facts so presented
must be convincing as to vindicate the well laid down principles for granting
injunction. Some of the principles or factors to be considered in an
application for interlocutory injunction are:

1. There must be a subsisting action which must clearly denote a legal right
which the applicant seeks to protect.

2. The applicant must show that there is a serious question or substantial

issue to be tried, which requires maintenance of the status quo.

3. The applicant must show that the balance of convenience is in favour of

granting the application, that is, that more justice will result in granting the
application than in refusing it.

4. The applicant must show that there was no delay on his part in bringing
the application.

5. The applicant must show that damages cannot be adequate compensation

for the injury he will suffer if the application is not granted.

6. The applicant must make an undertaking to pay damages in the event of a

wrongful exercise of the Court's discretion in granting the injunction.

10
 See Kotoye vs. CBN & Ors (1989) LPELR-1707 (SC); Saraki vs. Kotoye
(1990) LPELR-15503 (SC); Obeya Memorial Specialist Hospital vs. A.G.
Federation (supra); Akinpelu vs. Adegbore (supra); Buhari vs. Obasanjo
(2003) LPELR-813 (SC) and Falomo vs. Banigbe & Ors (1998) LPELR-1237
(SC).

The Applicants Failed to Establish their Legal Right and that there are
serious Issues for Determination

3.8 In applying the above principles to the instant Application, we seek to consider
the 1st and 2nd factors together. In the present Application, we submit that the
Applicants have not demonstrated their legal right to file the suit and bring this
Application. From the endorsement on the Originating Summons, it is clear
that the Plaintiffs are claiming to bring this Application for themselves and on
behalf of the Ijaw people of Warri North, Warri South and Warri South West
Local Government Areas of Warri Federal Constituency of Delta State. In our
Counter-Affidavit, we challenged the legal right of the Plaintiffs to commence
this action by stating that most of the electorates of Ijaw extractions from Warri
North, Warri South and Warri South West Local Government Areas are not in
support of this action. Likewise, some of them are Candidates who are already
campaigning for votes from the electorates. They are all desirous that the
election proceeds as scheduled so that they can vote and be voted for. The
Plaintiffs therefore failed to establish their legal right to commence this
action.See paragraphs 5 (h), (i) and (m) and (n) of the Counter Affidavit in
opposition to the Motion on Notice for Interlocutory Injunction.

3.9 The pertinent question to ask at this stage is: What is the legal right of the
Applicants in asking the 1st Defendant not to make available, the voters register
compiled by the 1st Defendant to the 2nd Defendant to conduct the Local
11
 Government Election in Delta State as statutorily required by Section 98 (3) of
the Electoral Act, 2022? The answer is none! The Applicants failed to show
their legal right in seeking to restrain the 2 nd Defendant from conducting the
Local Government Elections in Warri North, Warri South and Warri South-
West Local Government Areas. They also failed to establish any legal right by
affidavit and documentary evidence that their right to enjoy the fruit of the
judgment in Appeal No. S/413/2016 Between HON. GEORGE U.
TIMINIMI & 9 ORS v. INEC delivered on 2/12/2022 will be adversely
affected by the 2nd Defendant’s decision to conduct the election into the three
Local Government Areas in accordance with the 2nd Defendant’s statutory
duties.

3.10 In the same vein, we submit that the Applicants failed to demonstrate that there
are any serious questions or substantial issues to be tried which requires the
maintenance of status quo. From the affidavit in support of the Originating
Summons and the Counter affidavit filed by the 2 nd Defendant, it is very clear
that the issue thrown up in this case is an attempt by the Applicants to employ
the procedure of Originating Summons to resolve the interpretation and
enforcement of a judgment in their favour. We submit that this issue cannot be
resolved by Originating Summons because an Originating Summons cannot be
employed to interpret a judgment. See the case of SANI v. UMAR (2018)
LPELR-46820 (C.A) Pp. 26-32 Paras. F – C.

3.11 Secondly, the issue of compliance and/or non-compliance with the decision of
the Supreme Court by the 1 st Defendant as contained in Exhibit EK01cannot
be extended to stop the 2 nd Defendant from performing her statutory duties.
This is more so as the 2 nd Defendant has not been shown to be in disobedience
of the judgment either by act of commission or omission. From paragraph 5
(l) of our Counter Affidavit, it is also clear that the 1st Defendant is not in
12
 disobedience of the judgment of the Supreme Court as contained in Exhibit
EK01. Rather, the 1st Defendant has commenced the process of complying
with the Order of the Supreme Court by embarking on a fresh delineation of
the polling units in the three Local Government Areas in accordance with the
judgment.

3.12 We therefore urge my Lord to hold that there is no serious question or

substantial issue to be tried, especially having regard to the unchallenged
affidavit evidence that the 1st Defendant is in the process of complying with the
judgment of the Supreme Court.

A Court Cannot Grant an Injunction over a Completed Act

3.13 We also submit my lord, that by the first prayer as contained in the
Plaintiffs’Application, the Plaintiffs are seeking,by way of interlocutory
injunction, to restrain the 1stDefendant from availing the 2ndDefendant with the
voters register for Warri North, Warri South and Warri South West Local
Government Council, an act that has been completed. The said voters register
has long been made available to the 2 nd Defendant by the 1st Defendant, even
before this action was filed.See paragraph 5 (f) of the 2nd Defendant’s
Counter-Affidavit.

3.14 It is trite law that the Court will not grant an injunction to restrain an already
completed act. This is moreso where the act sought to be restrained is being
done by a statutory body exercising its constitutional and/or statutory function.
See the case ofOCHOMA v. IDEOZU (2001) FWLR 1849-2067 Pt. 51 at
Pp. 1875where the Court held as follows:

When a Court is asked to restrain a party from doing an act pending the
final determination of a suit before it, but the act has indeed been completely
13
 done, the Court must refuse to make the order because what is sought to be
restrained has been completed.

3.15 We therefore urge my lords to refuse this Application because the voters
registers have already been made available to the 2 nd Defendant by the 1st
Defendant.

The Applicants Failed to Show that they will Suffer Irreparable

Damages if this Application is Refused

3.16 My lord, the Applicants have not shown what irreparable damages will be
occasioned to them if the 2nd Defendant goes ahead with the election. It has not
been shown that the failure of the 1 st Defendant to complete the delineation
exercise before the conduct of the election has affected their right to vote and
be voted for in the upcoming Local Government Election in the three Local
Government Councils. We therefore urge my lord to refuse this Application on
this score. The Applicants will be adequately compensated by way of monetary
damages should they succeed in the substantive claim.

3.17 We submit further that monetary damages cannot adequately compensate the
2ndDefendant and the general public including the electorates and candidates, if
this Application is granted. From the reliefs sought by the Plaintiffs, they are
seeking an order of this Honourable Court restraining the 2 nd Defendant from
conducting elections in Warri North, Warri South and Warri South West Local
Government Council of Delta State. There is no doubt that if this Application is
granted, the 2nd Defendant and the general public from the three Local
Government Areas will suffer irreparable damages.

14
3.18 Moreover, the 2ndDefendant has also shown by their Counter-Affidavit, at
paragraph5 (n),that the 2ndDefendant will suffer more if this Application is
granted. The 2ndDefendant has expended huge amount of money towards the
conduct of the said election, which process is ongoing. Moreso, political parties
have already conducted their primaries election and have nominated their
various candidate to represent the Political Parties in the upcoming Local
Government Council election schedule to hold on 13 th July, 2024. The various
candidates have also spent money in campaigning and canvassing for votes
from electorate.See paragraphs 5 (g), (h) and (i) of the 2 nd Defendant’s
Counter affidavit.

3.19 Assuming, without conceding that this Application is granted, the next question
the court would have to determine is whether monetary damages can
adequately compensate the 2ndDefendant who has spent so much towards the
conduct of the said election. The answer is in the negative!In all, we urge my
lord to refuse this Application.

The Balance of Convenience is not in Favour of the Applicants

3.20 We now come to the question of Balance of Convenience. We submit that

having regards to the affidavit evidence, particularly the averments in the
Counter Affidavit filed by the 2 nd Defendant, the Balance of Convenience is in
favour of the 2nd Defendant and not the Applicants. We submit and urge my
lord to hold that the 2nd Defendant would suffer more injustice if this
Application is granted.

15
3.21 In the case of AKPAN v. NNAH & ORS (2022) LPELR-57201 (CA), the
Court, in dissecting and elucidating on the position of the law as regards
Balance of Convenience, had this to say:

No doubt, balance of convenience is one of the key factors to be

considered in an application for interlocutory injunction. It means the
disadvantage to one or the other party which damages cannot compensate
in the final determination of the case.

3.22 See also the case of MABON LTD & ORS. v. ACCESS BANK (2021)
LPELR-53261 (CA) where Patricia Mahmoud, JCA held thus:

In other words, the determination by a Court of where the balance

of convenience rests in a case is a question of fact not law. This
exercise of discretion implies weighing from the evidence before the
Court the degree of hardship or inconvenience which each party is
likely to suffer according to whether the order is granted or refused.
The Applicant therefore has the burden to establish or prove by facts
in evidence that the balance of convenience rests on his side, not
just by merely stating so.

3.23 Finally on this issue is the case of MERENI & ORS v. ONYECHERE &
ORS (2015) LPELR-25623 (CA) where the Court of Appeal dismissed an
Appeal which bordered on the issue of Balance of Convenience and its
consequent effect on the granting or otherwise of an Interlocutory Injunction
on the ground that the Balance of Convenience was not in favour of the
Applicant(s). The Court of Appeal held thus:

In insisting that the balance of convenience is in her favour, the 1 st

Respondent deposed to paragraphs 5,9,10,11,12 and 14 (already
reproduced above). I have earlier noted that no Replies to the weighty
averments of the 1st Respondent were filed by the Appellants disputing the
claims of the 1st Respondent in those averments…For these reasons, it is
rather surprising that the lower Court went ahead and granted an

16
 injunction on the basis of these facts especially with the weighty
depositions of the 1st Respondent then which were not countered or
controverted in any way.

3.24 In the present case and from the 2 nd Defendant’s CounterAffidavit, particularly
paragraph5 (i), it is evident that the 2ndDefendant is in the final stage of the
preparation for the Local Government Election which is coming up on the 13 th
of July, 2024. The 2nd Defendant has expended huge amount of money and
resources in the preparation for the election. Please see paragraph 5 (j) of the
2nd Defendant Counter-Affidavit where it was averred thus:

j. The 2nd Defendant has spent a huge amount of money in the preparation
for the election including mobilization, printing of election materials and
recruitment of ad-hoc staff which is at the advance stage having been
fixed for 13/07/2024 including election into Warri South, Warri North and
Warri South-West Local Government Areas.

3.25 Apart from the above, it is also in evidence that all the Political Parties have
nominated their candidates who are presently campaigning to the electorates to
secure their votes. See particularly paragraphs5 (h) and (i)of the 2nd
Defendant Counter Affidavit where the 2nd Defendant stated thus:

h)I know as a fact that Political Parties who are interested in participating
in the Local Government Election in Delta State, have conducted their
primaries election, nominated and submitted the list of their candidates for
the various offices to the 2nd Defendant.

i)I also know as a fact that the various Political Parties and their
candidates are at the stage of campaigning to the electorates to vote their
candidates.

3.26 Apart from the above, any delay or postponement of the Local Government
Election, which is the effect of the present application in Warri North, Warri

17
 South and Warri South-West Local Government Areas of Delta State, will
create an unconstitutional situation where non-elected officials will have to
manage and superintend the affected three Local Government Areas contrary to
the provisions of Section 7 (1) of the 1999 Constitution (as amended). The
Court is enjoined not to restrain a proposed constitutional act which in this
case, is the conduct of the Local Government Election to ensure that those that
manage the affairs of the Local Government are democratically elected. Please
see the case of PETER v. OKOYE (2002) F.W.L.R. (Pt. 110) (P. 1883, para.
H).

3.27 We therefore urge my lord to hold that the balance of convenience is in favour
of the 2nd Defendant by refusing this Application.

There is Undue Delay on the part of the Applicants in filing this Suit and
bringing the present Application

3.28 On the issue of whether there is a delay on the part of the Applicants in
bringing the Application, we submit straightaway that the Applicants are guilty
of inordinate delay in filing this suit and bringing the present application. By
their own admission, and as could be seen from Exhibits EK01, that is the
judgment of the Supreme Court, the said judgment was delivered on the 2nd
day of December, 2022. The present suit and Application were filed on the 6th
of June, 2024. This is a period of over one year and six months.

3.29 Also, from the Counter Affidavit filed by the 2 nd Defendant and as shown in the
PublicNotice and Time-Tables (Exhibit A), the Applicants were aware, since
the 3rd of May, 2024 when the Notice was issued, that the process of election
by the 2nd Defendant had commenced. However, the Applicants waited for the
2nd Defendant to get to an advanced stage of the election process for a period of
18
 over one month before filing this action and the present application which
essentially seeks to stop the 2 nd Defendant from going ahead with the conduct
of Local Government Council Election in Warri North, Warri South and Warri-
South West Local Government Areas. We respectfully refer my lord to the case
of TEMEWEI & ORS. v. BENBAI & ORS. (2015) LPELR-2513 (CA)
where the Court of Appeal held thus:

In Kotoye v. CBN & Others (Supra), it was held among others that, “Also
delay in bringing the application will defeat it because such a delay
postulates that there is no urgency in the matter and destroys the very bane
for a prompt relief by way of interlocutory injunction

3.30 See also the case of PETER v. OKOYE (2002) 3 NWLR (Pt. 755) 529 (CA)
where the Court held that:

In determination of an application for interlocutory injunction, the

conduct of the parties is one of the relevant factors to be taken into
consideration. On the part of an applicant, a reprehensible conduct is
enough to deny him of a grant of his application. An applicant for an
order of interlocutory injunction should fail if he is guilty of delay. This is
because an order of interlocutory injunction is an equitable remedy. It is
known that delay defeats equity. An applicant should act timeously so as
not to overreach his opponent.

3.31 More interesting in this case is the fact that the judgment of the Supreme Court
as contained in Exhibit EK01 was delivered on the 2nd Day of December,
2022. Since then, the 1st Defendant has conducted various elections in Warri
North, Warri South and Warri South-West Local Government Areas of Delta
State. In this regard, the 1st Defendant in 2023 conducted the Presidential,
Governorship, Senatorial and Members of House of Representatives and House
of Assembly in the three Local Government Areas. The Applicants did not

19
 challenge the conduct of the election in Court, either before or after the
election. It is after about one year and six months that the Plaintiffs have now
filed the present action to stop the conduct of the Local Government Election
by the 2nd Defendant. This is obviously an undue delay which should not be
encouraged by this Honourable Court.

The Rights and Interest of Third Parties Would be Affected if the

Application is Granted

3.32 My lord, anotherreason for urging the Court to refuse this Application is that if
this Application is granted, it will affect the interests and rights of third parties
who are not before the Court. Where an order for interlocutory injunction will
affect the interests of third parties or disrupt the activities of parties not
engaged in the suit, the Court ought to take these into consideration in
weighing the balance of convenience. See the case of OCHOMA v. IDEOZU
(2001) FWLR 1849-2067 (Pt. 51)1875 at 1886 where the Court held thus:

It ought to have occurred to the learned trial judge that the interest of the
entire community of Ahoada is greater than that of the Respondents. There
is no doubt that apart from affecting the interest of third parties, the order of
injunction has disrupted the traditional business of the community and he
could have taken this into consideration in weighing the balance of
conveniences.

3.33 In the instant Application, it has been shown by affidavit evidence that granting
this Application will be prejudicial to the interest of third parties who are not
before this Honourable Court, particularly the electorates and the candidates
for the Local Government Election from the Warri North, Warri South and
Warri South-West Local Government Areas.
20
 3.34 Having regards to the above submission, we urge my lord to refuse this
application in the interest of justice and instead, grant accelerated hearing of
the matter.

DATED THIS 21STDAY OF JUNE, 2024

Ayo Asala, SAN., FCArb.,

V.O. Eze Esq.
T. F. Doigbagha, Esq
Ayo Asala (SAN) & Associates
2nd Defendant’s Counsel
Block A, Plot 2,
D.S.C Housing Estate,
New Layout, Off Egini Road,
Orhuwhorun-Warri,
Delta State.
[email protected]
08054444891, 08036238267.

FOR SERVICE ON:

1. THE PLAINTIFFS
C/O THEIR Counsel
ERIC K. OMARE, ESQ.,
(PLAINTIFFS’ COUNSEL)
E.K. OMARE & CO.
NO. 48, AIRPORT ROAD,
WARRI, DELTA STATE.
08037763719, 07011783009, [email protected]

2. THE 1ST DEFENDANT

INDEPENDENT NATIONAL ELECTORAL COMMISSION
Plot 436, Zambezi Crescent,
Maitama, FCT, Abuja
OR
INEC Delta State Headquarters,
NTA Road, Asaba,
Delta State.
21