OKOCHA SAMUEL OSI v. ACCORD PARTY & ORS
April 17, 2025PETER OCHUBA VS THE FEDERAL REPUBLIC OF NIGERIA
April 17, 2025Legalpedia Citation: (2016) Legalpedia (SC) 11185
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Dec 8, 2016
Suit Number: SC.120/2013
CORAM
PARTIES
GOVERNOR, EKITI STATE AND ORS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents took out Originating summons against the Defendants/Appellants at the trial court wherein they sought declaratory and injunctive reliefs. They consequently posed some questions before the court viz; whether the provisions of Ekiti State Local Government Administration Law 1999 (as amended) by Section 23B (i) and (ii) of the Ekiti State Local Government Administration (Amendment) Law 2011, which empowers the Executive Governor of Ekiti State to dissolve democratically-elected Local Government Councils and replace them with un-elected Caretaker Committees appointed solely by the Governor are in breach of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria and are therefore null, void and of no effect whatsoever? and whether in view of the combined effect of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria and the provisions of Sections 5 and 2 B (i) and (ii) of Ekiti State Local Government Administration Law 1999 as amended by the Local Government Administration (Amendment) Law 2001, the Defendants have powers to dissolve the democratically-elected Councils of the Sixteen Local Governments in Ekiti State of which the plaintiffs are democratically elected Chairmen otherwise than in accordance with relevant constitutional and statutory provisions?
Pursuant to Section 23B of the Ekiti State Local Government Administration (Amendments) Law, the Appellant dissolved all the sixteen democratically elected Local Government Councils in the State and appointed unelected caretaker committees in their place. The Respondent by their amended Originating Summons challenged the dissolution of the councils; they contended that having been democratically elected to serve for a three-year tenure from the 20th of December 2008, when they subscribed to the oath of office to 19th December 2011. It is their case that the dissolution of their councils by the Appellant on the 29th October 2010 was unconstitutional, null and void. The Appellants challenged, by way of preliminary objection, the competence of Respondents originating summons. The trial court upheld the Appellant’s preliminary objection and declined jurisdiction. Dissatisfied, the Respondents appealed to the Court of Appeal, which allowed the appeal and invoked section 15 of the Court of Appeal Act and upon considering the Respondents’ application, granted the reliefs sought. The instant appeal arises from the lower court’s decision against the Appellants.
HELD
Appeal Dismissed
ISSUES
1. Whether the provisions of Sections 23 B (I) and (ii) of the Ekiti State Local Government Administration (Amendment) Law, 2011 are inconsistent with Section 7 (1) of the Constitution and, if so, whether the lower court, rightly, nullified them?
2. Whether, in the circumstance, the lower court, rightly, invoked its Section 15 powers in awarding consequential reliefs in favour of the respondents?
RATIONES DECIDENDI
ISSUES FOR DETERMINATION –GROUND ON WHICH COURTS ARE PERMITTED TO REFORMULATE ISSUES FOR DETERMINATION
“In several decisions, this court has emphasised that verbosity does not enhance the quality of issues put forward for the determination of an appeal, Anaeze v Anyaso [1993] LPELR -480 (SC) 36, D-G. On the contrary, clarity and concinnity ought- to be the most invaluable desiderata, Anaeze v Anyaso (supra); Ugo v Obiekwe [1989] 1 NWLR (pt 99) 566; AG, Bendel State v Aideyan [1989] 4 NWLR (pt 118) 646.
In other words, issues must be precise and devoid of ambiguity for easy comprehension of matters for adjudication, Guda v Kitfa [1991] 12 NWLR (pt 629) 21. As such, they must be tailored to the crucial questions in controversy, Ibrahim v Ojomo [2004] All FWLR (pt 199) 1285; Onifade v Olayiwola [1990] 7 NWLR (pt 161) 130; Okoye v NCFC Co Ltd [1991] 6 NWLR (pt 199) 501. Case law has, indeed, re-iterated these requirements ad nauseam.
It is against this background that courts are permitted to reformulate issues in order to accentuate the principal questions that call for the court’s decision. In so doing, it could even adopt a sole issue where it is determinative of the appeal, 7UP Bottling Coy Ltd v Abiola and Sons Ltd [2001] 13 NWLR (pt. 730) 493, 494; Onochie v Odogwu [2006] 6 NWLR (pt 975) 65, 92; Ikegwuoha v Ohawuchi [1996] 3 NWLR (pt. 4350 146; Aduku v Adejoh [1994] 5 NWLR (pt. 346) 582.
LOCAL GOVERNMENT COUNCILS – WHETHER THE PROVISIONS OF SECTIONS 23 B (1) AND (11) OF THE EKITI STATE LOCAL GOVERNMENT ADMINISTRATION (AMENDMENT) LAW, 2011 ARE INCONSISTENT WITH SECTION 7 (1) OF THE CONSTITUTION
“Now, Section 7 (1) (supra) provides thus:
The system of local government by democratically elected local government council is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law, which provides for the establishment, structure, composition, finance and functions of such council.
[italics supplied for emphasis]
Unarguably, the Ekiti State House of Assembly derived its powers for enacting its said Local Government Law from the above constitutional provision. Indeed, at page 49 of the brief, counsel for the appellants conceded that the “Ekiti State House of Assembly pursuant to the provisions of Sections 4 (6) and 7 (1) of the 1999 Constitution (as amended) enacted the Local Government Administration Law Cap L11, Laws of Ekiti State.
In the said law, sundry matters relating to the establishment of Local Government Councils are provided for in Sections 2- 5. In particular, Section 5 consecrates a tenure of three years for the offices therein.
The cassus belli in this matter which culminated to this appeal was, however, Section 23B of the Ekiti Local Government Administration (Amendment) Law, 2001 which provided for the Governor’s power of dissolution in these terms:
1.Provided always that the Governor is by this law empowered to dissolve Local Government Councils for over-riding public interest subject to the two-thirds majority approval of members of the House of Assembly;
2.Such dissolution shall not exceed a period of twelve calendar months wherein the Governor shall have power to appoint a seven-member Caretaker Committee out of which a Chairman shall be appointed pending the conduct of election to occupy the office of the Chairman.
Somewhat, most curiously, the Honourable Attorney General of Ekiti State, for the appellants, in what appears to be unwarranted sacrilege on the canons of constitutional interpretation, submitted that:
…if the draftsmen wanted the Local Government to be independent of the States they would have included it under section 2 (2) of the Constitution and the draftsmen would have empowered the House of Assembly to legislate on the existence, structure among others. It will be incongruous if a Court interpret (sic) the provision of Section 23B [supra] viz-a-viz Section 7 of the Constitution and now come (sic) to the conclusion that the contradicts or (sic) inconsistent with the Constitution. The House of Assembly is the Alpha and Omega as far as the issue of Local Government is concerned and any law validly made by them to regulate and control the Local Government ought not to be questioned by (sic) Court because the Constitution donates such wild (sic) powers to the House of Assembly.
[paragraph 10. 10, page 50 of the brief; italics supplied for emphasis]
With respect to the Honourable Attorney General, this submission is an unbridled affront to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is, indubitably, an elementary proposition that the said Constitution is the supreme law of the land, Section 1 (1) thereof; N. U. E. E v B. P. E [2010] 7 NWLR (pt 1194) 538; Nig. Army v Yakubu [2013] 8 NWLR (pt 1355) 1; Udenwa v Uzodinma [2013] 5 NWLR (pt 1346) 94; Amadi v INEC [2013] 4 NWLR (pt 1345) 595; AG, Federation v AG, Lagos [2013] 16 NWLR (pt 1320) 249.”
SUPREMACY OF THE CONSTITUTION – EXTENT OF THE SUPREMACY OF THE CONSTITUTION
“From the very ipssissima verba of Section 1, sub-sections (1) and (3) of the Constitution (supra), it is evident that it is the fons et origo, that is, the provenance, from which all sub-constitutional norms derive their source and sustenance, AG, Abia State v AG, Federation [2007] 1 CCLR 104; AG, Lagos State v AG Federation [2003] 12 NWLR (pt 833) 1; INEC v Musa and Ors [2003] 8 ANLR 322.
Even as a simple logical postulate, since all other laws owe their source to the Constitution, it [the Constitution] would not brook any sort of competition with them. As such, in the event of any conflict, it operates proprio vigore to invalidate them to the extent of their inconsistency, Section 1 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (supra).
The authorities on this point are just too numerous to delay us here. All the same, I shall refer to one or two of them, FRN V Osahon and Ors [2005] LPELR -3174 (SC) 27 -28, E -A; Kalu v Odili [1992] 5 NWLR (pt 240) 130; N. U. E .E v B. P. E (supra); Nig Army v Yakubu (supra); Udenwa v Uzodinma (supra); Amadi v INEC (supra); AG, Federation v AG, Lagos (supra)”.
LOCAL GOVERNMENT COUNCIL – CONSTITUTIONAL GUARANTEED SYSTEM OF LOCAL GOVERNMENT BY DEMOCRATICALLY-ELECTED LOCAL GOVERNMENT COUNCIL
“My Lords, it would seem evident that counsel for the appellants, the Hon Attorney General, underrated the trenchant provisions of Section 7 (supra),. For our immediate purpose, I will reproduce the relevant provision:
The system of local government by democratically-elected local government council is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such council.
[italics supplied for emphasis]
Having thus guaranteed the system of local government by democratically-elected Local Government Councils, the Constitution confers a toga of sacro-sanctity on the elections of such officials whose electoral mandates derive from the will of the people freely-exercised through the democratic Process. Put differently, the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically-donated to them, Eze and Ors v Governor, Abia State and Ors [2014] 14 NWLR (pt 1426) 192’.
LOCAL GOVERNMENT COUNCIL – BASIS FOR THE DISSOLUTION OF LOCAL GOVERNMENT COUNCIL
“In the apt and eloquent postulation of the Court of Appeal in AG, Benue State v Umar (2008) 1 NWLR (pt 1068) 311, 354 -358, which I, approvingly, adopt in this judgement:
Elections like in any other country should be held sacrosanct. Representatives of the people through an election [at whatever level] cannot just be removed or their Councils dissolved at the pleasure of other elected office holders. Democracy is growing or should grow in this Country and with it, the attendant pitfalls and hiccups. However, the courts are poised to chaperon the ‘ many contenders through the straight and narrow of democracy…
Simply put, therefore, the election of such officials into their offices and their tenure are clothed with constitutional force. They cannot, therefore, be abridged without breaching the Constitution from which they derive their force. The only permissible exception, where a State Governor could truncate the lifespan of a Local Government Council which evolved through the democratic process of elections, is “for over-riding public interest” in a period of emergency.
As my Lord, Aka’ahs, JCA (as he then was) put it most, admirably, in AG, Plateau State v Goyol (2007) 16 NWLR (pt 1059) at page 94 [views I, entirely, agree with]:
The Governor swore to preserve, protect and defend the Constitution and not to mutilate it. Although the House of Assembly has power to make laws, [it] has no powers to make any law giving the Governor power to truncate a democratically-elected Local Government Council. The penchant by (sic) State Governors in (sic) dissolving Local Government Councils is clearly undemocratic. It is only when a state of emergency has been declared that can warrant the suspension of democratic institutions in the polity. See, also, Akinpelu v AG, Oyo State [1982] 2 -FNR, 428; Akpan v Umar (2682) 7 NWLR (pt 767) 701, 732, paras G-H.
In effect, where such is the situation, as even nature itself abhors any vacuum, the Governor would be entitled to empanel a Caretaker Committee. Anything outside that is an unwarranted affront to the Constitution, Eze and Ors v Governor, Abia State and Ors. (supra)”.
INTERPRETATION OF WORDS IN A STATUTE -INTERPRETATION OF “SHALL’’ IN SECTION 7 (1) OF THE CONSTITUTION
“In my view, the use of the auxiliary verb “shall’ in the said section connotes a command; an imperative requirement: a constitutional direction which yields no room for discretion, Tanko v Caleb [1999] 8 NWLR (pt ‘616) 606; Abimbola v Aderoju [1999] 5 NWLR (pt 801) 100; Adewunmi v AG, Ekiti State [2002] 2 NWLR (pt 751) 474; Amadi v NNPC [2000] 10 NWLR (pt 674) 76.
The implication, therefore, is that Section 23B (supra), which was not intended to “ensure the existence of” such democratically-elected Councils, but to snap their continued existence by their substitution with Caretaker Councils, was enacted in clear breach of the supreme provisions of Section 7 (1) the Constitution (supra)”.
COURT OF APPEAL – POWER OF THE COURT OF APPEAL TO MAKE CONSEQUENTIAL ORDERS
“My Lords, I cannot find any rational justification for disturbing the above unanswerable conclusions of the lower court. In the first place, it is now, firmly, established that the lower court, by virtue of its power under section 15 of the Court of Appeal Act, can make such consequential orders as it deems fit in order to avoid multiplicity of legal proceedings concerning any of those matters which any of the parties may appear to be entitled to, Bunyan v Akingboye [1999] 7 NWLR (pt 609) 31; (1999) LPELR -817 (SC) 15, D-F; Okoya and Ors v Santilli and Ors [1990] 2 NWLR (pt.131) 172; (1990) All NLR 250, 280 – 281; Katto v. Central Bank [1991] 9 NWLR (pt 214) 126; [1991] 12 SCNJ 1, 17.
CONSEQUENTIAL ORDER –WHAT AMOUNTS TO CONSEQUENTIAL ORDER?
“Even then, as it is well-known, a consequential order, such as that which lower court made in favour of the respondents herein, is an order that gives effect to the judgement; that is, that gives meaning to the judgement else it would amount to pyrrhic judicial victory, Obayabona v Obazee [1972] 5 SC 247; Inakoju v Adeleke [2007] 4 NWLR (pt 1025) 423; Eze and Ors v Governor of Abia State (supra); Ishola and Anor v Folorunso and Ors [2010] 13 NWLR (pt 1210) 169, 192; Odofin v Agu [1992] 3 NWLR (pt 229) 350; Liman v Mohammed [1999] 9 NWLR (pt 6170 116; Akinbobola v Plisson Nig Ltd [1991] 1 NWLR (pt 167) 270; Ilona v Idakwo and Anor [2003] 11 NWLR (pt 830) 53.
SUPREMACY OF THE CONSTITUTION – SECTION 1(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“It is pertinent to restate that section 1(1) of the Constitution, emphasizes the supremacy of the Constitution wherein it states: –
“this Constitution is supreme and its provisions SHALL have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
See the view expressed by his Lordship Aderemi, JSC in Tanko V. State (2009) 4 NWLR (Pt. 1131) 430 at 452. See also A. G. Abia State V. A. G. Fed. (2006) 16 NWLR (Pt. 1005) 265 at 281 – 282 per Niki Tobi, JSC (of blessed memory).
LOCAL GOVERNMENT COUNCIL – WHETHER THE EXERCISE OF THE POWERS OF THE GOVERNOR UNDER SECTION 23B OF THE EKITI STATE LOCAL GOVERNMENT ADMINISTRATION (AMENDMENT) LAW 2001 TO DISSOLVE DEMOCRATICALLY ELECTED COUNCIL IS INCONSISTENT WITH SECTION 7(1) OF THE 1999 CONSTITUTION AS AMENDED
The provisos to the Section read:
“23B Governor’s power of dissolution
(1) Provided always that the Governor is by this law empowered to dissolve Local Government Councils for over-riding public interest subject to the two-thirds majority approval of members of the House of Assembly.
(2) Such dissolution shall not exceed a period of twelve calendar months wherein the Governor shall have power to appoint a seven-member caretaker committee out of which a chairman shall be appointed pending the conduct of election to occupy the office of the Chairman.”
Certainly, Section 4(6) of the .1999 Constitution as amended empowers the Ekiti State House of Assembly to enact the foregoing and reads: –
“4(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.”
Section 7(1) of the 1999 Constitution as amended the respondents contend Section 23B of the Ekiti State Local Government Administration (Amendment) Law 2001 offends provides: –
“7(1) The system of Local Government by democratically elected local Government Councils is under this Constitution guaranteed, and accordingly the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”
A community reading of the foregoing provisions makes one conclusion necessary: that the Ekiti State House of Assembly is empowered to make laws for the function of Local Government Councils in the State provided such laws do not temper with or abrogate the guaranteed existence of the democratically elected councils in the State.
EKITI STATE LOCAL GOVERNMENT ADMINISTRATION (AMENDMENT) LAW OF 2001 – IMPORT OF SECTION 5 AND 23B OF THE EKITI STATE LOCAL GOVERNMENT ADMINISTRATION (AMENDMENT) LAW OF 2001
“Sections 5 and 23B of the law provides for the tenure of office of the Local Government Political Office Holders and the Governor’s power of dissolution respectively. Section 5 states that:
“5. The Chairman and other elected officers of the Local Government shall hold office for a period of three years.”
While section 23B reads:
“(1) Provided always that the Governor is by this law empowered to dissolve Local Government Councils for overriding public interest subject to the two-thirds Majority approval of Members of the House of Assembly.
(2) Such dissolution shall not exceed a period of twelve calendar months wherein the Governor shall have power to appoint a seven-Member Caretaker Committee out of which a Chairman shall be appointed pending the conduct of election to occupy the office of the Chairman.”
–
SUPREMACY OF THE CONSTITUTION – STATUS OF A STATE LEGISLATION THAT IS INCONSISTENT WITH THE PROVISIONS OF THE CONSTITUTION
The Constitution is the Supreme norm and all laws are subject to it. That is to say under the democratic dispensation the sanctity and supremacy of the Constitution is sacrosanct.
Section 7(i) of the Constitution guarantees a system of Local Government by democratically elected local Government Councils.
Section 23 of the Ekiti state Local Government Administration (Amendment) Law of 2001 does not have such guarantees, rather it allows the Governor of the State to remove from office democratically elected Local Government councils, instead of ensuring their existence. There can be no doubt after reading Section 23B (supra) that Local Government Councils are under the absolute control of the Ekiti State Government. This is wrong. Any law on Local Government made by Ekiti State or any other state must make provisions within the limits of the provisions of the Constitution. Provisions of the Constitution must never be exceeded.
Where the provision of State Legislation, in this case the Ekiti state Local Government Administration Law, 1999 as amended in 2001 is inconsistent with provisions of the Constitution, the provision of such law is invalid, and the law itself is to that extent invalid.
Section 23B of the Ekiti state Local Government Administration (Amendment) Law, 2001 is inconsistent with section 7 of the Constitution and is consequently void. Consequently, the dissolution of democratically elected Local Government Councils on 29 October 2010 by the Governor of Ekiti State and setting up Caretaker Committees in place of the Local Government Councils is unconstitutional null and void, see Eze & 147 ors v Gov of Abia State & 2 ors (2014) 5 – 7SC (Pt. 1) P. 171”.
CONSEQUENTIAL ORDER – MEANING OF CONSEQUENTIAL ORDER
“A consequential order is an order that gives effect to a judgment, it gives meaning to the judgment, it must be incidental and flow directly and naturally from reliefs claimed, it gives effect to the judgment already given. Once again the facts of this case cry out for a consequential order that the respondents emoluments be paid and the Court of Appeal was right as the order gives effect to the judgment.
CASES CITED
Not Available
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 as amended
2. Ekiti State Local Government Administration (Amendment) Law 2001
3. Local Government Administrative Law, 1999
