May 25, 2025
Legalpedia Citation: (2010) Legalpedia (CA) 91161 In the Court of Appeal HOLDEN AT OWERRI Fri Apr 23, 2010 Suit Number: CA/PH/626/2008 CORAM PARTIES HON. CHIGOZIE EZE & […]
CORAM
PARTIES
HON. CHIGOZIE EZE & 147 ORS. APPELLANTS
GOVERNOR OF ABIA STATE & ORS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/ Appellants by originating summons on the 12th day of September 2006 sued the Defendants/Respondents asking for the determination of 4 electoral questions and sought 6 reliefs. The leave of the trial court was later sought and granted to amend the originating summons earlier filed by the Plaintiffs/ Appellants. The trial judge in a considered judgment thus granted the Plaintiffs’ reliefs Nos. 1 and 3 but refused reliefs Nos. 2, 4, 5, 6 and 7. Dissatisfied with this judgment, the Plaintiff/Appellant filed a Notice of Appeal containing four (4) grounds of appeal. A motion was also brought by the 2nd to the 147th Appellants to be joined as interested party and it was granted.
HELD
Appeal allowed
ISSUES
1. “Whether the law made by the 3rd respondent empowering the1st respondent to truncate a democratically elected Local Government Council and the 1st respondent truncating a democratically elected Local Government Council pursuant to the said law is inconsistent with the provisions of section 1 (2)and 7 of the Constitution of the Federal Republic of Nigeria and therefore void.?
2. “Whether the tenure of office of the Appellants will be regulated by the provision of Section 19 (3) and 25 of the Abia State of Nigeria Local Government Law No.5 of 1999 under which they were elected and sworn into office or the provisions of Section 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004, which was made to have a retrospective effect on the tenure of office of the Appellants.?
3. “Whether a retrospective law made by the 3rd respondent will affect a right acquired by the Appellants under a law they were elected and sworn into office.?
4. “Whether the learned trial Judge was right in his interpretation of S. 4 (9) of the Constitution of the Federal Republic of Nigeria 1999 and in refusing to grant reliefs 2, 4, 5, 6, 7, and 8 sought by the Appellants
RATIONES DECIDENDI
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999-SUPERIORITY AND BINDING NATURE OF THE PROVISIONS OF
“Also, the provisions of the Constitution are superior to every provision made in any Act Or Law and are binding on and must be respected by all persons and authorities in Nigeria. PER MOJEED ADEKUNLE OWOADE, JCA
RETROACTIVE LAWS-STATUS OF A RIGHT ACQUIRED IN AN ENACTMENT THAT HAS BEEN REPEALED-OPERATION OF THE CONSTITUTION
“Indeed, where a right has been acquired in an enactment that has been repealed, as in the instant case, the right so acquired survives the repeal. AG Plateau State V. Goyol (supra) This is because “the constitution was not made to have a retroactive effect. A Constitution like other statutes operates prospectively and not retrospectively unless expressly provided to be otherwise. Such legislation affects only rights, which come into existence after it has been passed. And it is the fundamental principle of Nigerian law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question’. PER MOJEED ADEKUNLE OWOADE, JCA
RETROACTIVE LAWS- TO WHAT EXTENT CAN IT BE PASSED?
“In other words, even if it is conceded that the legislature can pass retroactive laws, such laws must not attach prejudicial consequences to prior event, and it is abhorrent to pass a retroactive law that would have effect on the personal or property rights of citizens of Nigeria”. PER MOJEED ADEKUNLE OWOADE, JCA
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999-SUPREMACY OF
“The supremacy and the binding force of the constitution of the Federal Republic of Nigeria 1999 represent the truism in the position taken by the appellants on Issue NO.1. The basic law of Nigeria is the Constitution of the Federal Republic of Nigeria 1999 and its provision makes it supreme so that failure to follow its provisions renders whatever was done contrary to it unconstitutional”. PER MOJEED ADEKUNLE OWOADE, JCA
RETROACTIVE LAW- SECTION 6(1) OF THE INTERPRETATION ACT-HOW CONSTRUED
“By virtue of section 6 (1) of the Interpretation Act which is part of the constitutional provisions retrospectivity must not be implied into an Act to affect vested rights unless expressly provided for in the statute. Exceptions are purely procedural legislations which immediately affect all matters pending in court. It is not my contention that a retroactive law per se is unconstitutional in respect of civil matters”. PER HELEN MORONKEJI OGUNWUMIJU JCA
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999-PROVISIONS OF-EFFECT OF INCONSISTENCY OF ANY LAW WITH THE PROVISIONS OF THE CONSTITUTION
“Furthermore, in a democratic system of government with a supreme Constitution, all laws flow from the Constitution and any law inconsistent with the Constitution is void to the extent of such inconsistency”. PER MOJEED ADEKUNLE OWOADE, JCA
CASES CITED
Adediran VS, Kinlerland Transport Ltd. (1999) 9NWLR (PI. 214), 155 at 179,Erekanure VS The state (1993) 5 NWLR (PI. 244), 385 at 393. Adiza vs, Oyinwola (2000) 1 NWLR (PI. 674) 116, A-G Abia State vs, A-G, Federation (2002) 6 NWLR (Pg. 763) 264 at 479 Musa vs. I.N.E.C. (2002) 11 NWLR (PI. 778) 223 at 292Aremo II vs. Adekanye & 2 OrsChigbu v.Tonimas (2006) 4 SCNJ 262 at Pg.274
STATUTES REFERRED TO
1. The 1999 Constitution of the Federal Republic of Nigeria
3. Abia State Local Government (Third Amendment) law 2004