Etim a. Akpan & Ors. V. Hon. Peter John Umah & Ors. (2002)
LawGlobal-Hub Lead Judgment Report
EKPE, J.C.A.
By an originating summons filed in suit No. HT/4212000 at Ikot Ekpene High Court of Akwa Ibom State, on 28th of July, 2000, the plaintiff now 1st respondent sought against all the defendants to wit, the 2nd and 3rd respondents and the appellants herein for the determination of the following questions:
“1. Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, section 1 of Decree No. 63 of 1999, section 7, 7-19 of Decree No. 36 of 1998, the 1st defendant (2nd respondent) by himself or through the 2nd defendant (3rd respondent) or anyone whoever is competent to dissolve and/or order the dissolution of Ini Local Government Council in which the plaintiff is a Vice Chairman and member and elected on 5/12/98 by virtue of the Press Release of 12/7/2000.
- Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, section 10f Decree No. 63 of 1999, section 7, 7-19 of Decree No. 36 of 1998, the 1st defendant by himself or through the 2nd defendant or anyone whoever is competent to set up a Caretaker Committee made up of the 3rd – 7th defendants to replace the elected Ini Local Government Council and member by virtue of the Press Release of 12/7/2000.”
Consequent upon the above questions the plaintiff/1st respondent claimed the following reliefs:-
“(a) A declaration that:
(i) The 1st defendant by himself or through the 2nd defendant or anyone whoever is incompetent to dissolve and/or order the dissolution of lni Local Government Council in which the plaintiff is the Vice Chairman and member and elected on 5/12/98.
(ii) The 1st defendant by himself or through the 2nd defendant or anyone whoever is incompetent to set up a Caretaker Committee made up of the 3rd – 7th defendants (appellants) to replace the elected Ini Local Government Council in which the plaintiff is a Vice Chairman and member.
(b) An injunction restraining the 1st and 2nd defendants by themselves, their agents, staff, officers or whoever from interfering, in any manner whatsoever, with Ini Local Government Council elected on 5/12/98 and constituted on 3/6/99, especially by dissolving or purporting to dissolve same or giving effect to any purported dissolution of Ini Local Government Councilor preventing the plaintiff from functioning in office as the elected Vice Chairman of Ini Local Government Council.
(c) An injunction restraining the 3rd – 7th defendants (appellants) from parading themselves as members of the Caretaker Committee of Ini Local Government Council set up by the 1st -2nd defendants/respondents or in any manner whatsoever performing the statutory functions as the elected Vice Chairman of Ini Local Government Council.”
For the hearing of the originating summons, the parties filed their affidavits and counter affidavits. The learned trial Judge Ntem Isua, J. after hearing arguments, delivered a well considered judgment on the 24th of August, 2000. At page 221 of the record of appeal, the learned trial Judge in his judgment stated thus:
“In my humble opinion, dissolution of the council other than by expiration of its elected tenure, can by no stretch of the imagination qualify as an act designed to ensure the existence of a democratically elected local government council. Indeed, dissolution is conspicuously missing from the powers set out in section 7(1) of the Constitution. Dissolution of a Local Government Council by executive fiat is reminiscent of a dictatorial rule. It is decidedly against both the spirit and the letter of the Constitution of the Federal Republic of Nigeria, 1999. A fortiori the setting up of a Caretaker Committee to replace a democratically elected council is clearly unconstitutional, illegal and utra vires the powers of the 1st defendant.”
In the concluding portion of the judgment at page 224 of the record of appeal, the learned trial Judge had this to say:
“In conclusion, I answer the two questions submitted for the determination of the court in the negative, that is to say that I hold that neither the 1st defendant nor anyone else is competent to dissolve and or order the dissolution of Ini Local Government Council which was democratically elected on 5/12/98 and set any Caretaker Committee in its place.”
Accordingly, the learned trial Judge granted all the reliefs sought in the originating summons.
It is against this judgment that the 3rd to 7th defendants (who were the members of the Caretaker Committee) as the appellants have appealed to this court in a notice of appeal containing two grounds of appeal, namely:
“Grounds of Appeal
Ground 1 – Error in Law
The learned trial Judge erred in law when she held that the State House of Assembly cannot make a law to prematurely dissolve a democratically elected Local Government Council.
The Judge held:-
“The State House of Assembly cannot make a law to prematurely dissolve a democratically elected Local Government Council as such a law would be clearly unconstitutional.”
Particulars of Error
- By virtue of section 4(7) of the Constitution 1999, the House of Assembly of a State has powers to make laws for the peace, order and good government of the State or any part thereof.
- By section 4(7) of the Constitution the powers of the State House of Assembly extends (sic) to any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
- By virtue of section 4(6) of the Constitution the legislative powers of a State is vested in House of Assembly of the State.
The House of Assembly passed a law known as the Local Government (Administration) Law 2000, which came into force on 2nd day of June, 2000.
- By virtue of section 78 of the Local Government (Administration) Law, the House of Assembly has power to intervene in the event of crises and by a Resolution of 2/3rd can request the Governor to dissolve the Council.
Ground 2 – Error in Law.
The learned trial Judge erred in law in holding that the Governor of Akwa Ibom State was not competent to dissolve Ini Local Government (Council) by himself or through anyone else.
The Judge held:-
“I hereby declare that the 1st defendant is not competent either by himself or through the 2nd defendant……………to dissolve or order the dissolution of Ini Local Government Council.”
Particulars of Error
- By virtue of section 5(2)(a) and (b) of the Constitution, the Executive powers of the Governor extends (sic) to all laws made by the House of Assembly and to matters with respect to which the House of Assembly has power to make laws.
- By virtue of section 4(6) of the Constitution, the legislative power of a State is vested in the House of Assembly.
- By virtue of section 7(1) of the Constitution, the House of Assembly is vested with powers to make laws for the establishment etc of the Council.”
The background facts leading to this case arose from the dissolution of Ini Local Government Council and the setting up of a Caretaker Committee comprising the appellants by the Governor of Akwa Ibom State to run the affairs of the Local Government Council. On the 3rd of April, 2000, eight out of the ten Councillors in Ini Local Government Council passed a vote of no confidence on the Chairman of the Local Government Council, one Emmanuel Ebe, alleging certain acts of misconduct and financial impropriety against the said Chairman of the Council. As a result of the vote of no confidence, there was a deadlock in the administration of the Local Government Council. The State House of Assembly then stepped in and set up an Ad Hoc Committee to look into the crises in the Local Government Council. The Committee, after executing its assignment, submitted its report to the House of Assembly which considered the report and recommended to the Governor of Akwa Ihom State the immediate dissolution of the Local Government Council. The Governor who is the 1st defendant/2nd respondent accepted the recommendation and on 13th of July, 2000, by a Press Release dated 12th July, 2000 and signed by the 2nd defendant/3rd respondent, the Governor dissolved Ini Local Government Council and set up a Caretaker Committee consisting of the appellants who were the 3rd to 7th defendants in the court below. Consequent upon the dissolution, the plaintiff/respondent lost his office as the Vice Chairman of the said Ini Local Government Council and thereupon he instituted this action by way of originating summons in the court below from where this appeal emanated.
Briefs of argument were filed and exchanged. The appellants in their brief of argument formulated two issues for the determination of the appeal which reads:
“(i) Whether the State House of Assembly cannot make a law to regulate a Local Government Council plagued with crises. (Ground 1)
(ii)Whether the Governor of Akwa Ibom State was not competent to dissolve Ini Local Government Council.(Ground2)
The plaintiff/1st respondent in his brief of argument framed only one issue for the determination of the appeal namely:
“Whether the Governor of Akwa lbom State was competent to dissolve the democratically elected Ini Local Government Council constitutionally guaranteed under section 7 of the 1999 Constitution and replace same with the appellants as Caretaker Committee members.
The 2nd and 3rd defendants/respondents in this appeal did not file any brief of argument. They are the defendants/appellants in a sister Appeal No. CA/C/30/2001 wherein they filed their brief of argument.
Arguing issue No. 1, which is related to ground 1 of the grounds of appeal, the appellants submitted that the State House of Assembly has the competent to make laws regulating the tenure of Local Government Councils. Reference was made to section 4 subsections (6) and (7) of the Constitution of the Federal Republic of Nigeria 1999 on the legislative powers of State House of Assembly. It was further submitted that by virtue of section 4 subsections (6) and (7) of the Constitution, the Akwa Ibom State House of Assembly enacted the Local Government (Administration) Law 2000 which retrospectively came into effect on the 2nd day of June, 2000. The appellants sought for protection under section 78 of the said Akwa Ibom State Local Government (Administration) Law, and urge this court to hold that the Akwa Ibom State House of Assembly has power to make the law regulating the tenure of Local Governments within the state, and that Ini Local Government Council was properly dissolved under the law.
On issue No.2 which is related to ground 2 of the grounds of appeal, it was the submission of the appellants that the Governor of Akwa Ibom State was competent to order the dissolution of Ini Local Government Council and set up a Caretaker Committee to run the affairs of the Council pending the conduct of a bye-election. They referred to section 5(2)(a) and section 7(1) of the 1999 Constitution and section 78 of the Akwa Ibom State Local Government (Administration) Law 2000 and urged the court to hold that the Governor of Akwa Ibom State was right to have dissolved the said Ini Local Government Council and set up a Caretaker Committee. It was further submitted that although the Akwa Ibom State Local Government (Administration) Law 2000 has a retrospective operation, yet that does not make the law incompetent. The case of Shitta-Bey v. A.-G., of the Federation (1998) 61 LRCN 4328 at 4334 (1998) 7 SCNJ 264 at 280, (1998) 10 NWLR (Pt.570) 392 at page 399 was cited.
The plaintiff/1st respondent in his brief of argument contended that the Akwa Ibom State Local Government (Administration) Law 2000, signed into law on 14/9/2000, but with retrospective commencement date of 2/6/2000, cannot be held to have retrospective effect or operation to cover the event of the dissolution of Ini Local Government Council on 13/7/2000 which preceded the promulgation of the said Law and cited Shitta-Bey v. A.G. of the Federation (1998) 10 NWLR (Pt.570) 392; (1998) 61 LRCN 4328 at 4334 (1998) 7 SCNJ 264 at 280. He further contended that the retrospectivity of an enactment or a statute must be clearly intended and spelt out in the Enactment or Statute concerned in order to rebut the legal presumption against retrospective legislation, but that such an intention is not conveyed in the Akwa Ibom State Local Government (Administration) Law 2000. He cited the case of Osadabey v. A.G. of Bendel Slate (1991) 1 NWLR (pt.l69) 525 at 568 where it was held that the date of commencement of a Statute is the date of its publication except where otherwise stated. He also referred to the following cases; Obimiami Brick & Stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt.229) 260 at 260; Adesanoye v.AdewoLe (2000) 9 NWLR (Pt.271) 127; (2000) 5 SCNJ 49, to the effect that the back-dating of the commencement date of the Akwa Ibom State Local Government (Administration) Law 2000 to 2nd June, 2000 after it was signed into law on the 14th of September, 2000 does not make it retrospective without a clear statutory intention being spelt out. It was also contended by the plaintiff/1st respondent that the 1st defendant/2nd respondent (the Governor of Akwa Ibom State) did not comply with nor rely on the provision of section 78 of the said Local Government (Administration) Law 2000 in dissolving Ini Local Government Council and constituting a Caretaker Committee to take over and manage the affairs of the council, because in paragraph 14 of the counter-affidavit sworn to in opposition to the originating summons it was denied that the Governor acted on the recommendation of the House of Assembly in dissolving Ini Local Government Council. It was therefore submitted that section 78 of the Local Government (Administration) Law 2000 cannot be successfully invoked in support of the dissolution of the said Local Government Council since its provision was not followed by both the House of Assembly and the Governor. Furthermore, it was contended that even if it is granted (but without conceding) that section 78 of that Law was valid and applicable, it was not strictly followed in the present case because the section provides for the appointment of an “Administrator” and not a “5 man Caretaker Committee” upon the dissolution of the Local Government Council as was done by the Governor. Reference were made to the cases of Onyali v Okpala (2001) 1 NWLR (Pt.694) 282; Obasanya v. Babafemi & Ors. (2001) 15 NWLR (Pt.689) 1; Osafile v. Odi (No.1) (1990) 3 NWLR (Pt.137) 130 at 161; Ogunlaji v. A.G. Rivers State (1997) 6 NWLR (Pt.508) 209. On the import of sections 4(6) and (7), 5(2)(a) and 7(1) of the 1999 Constitution, it was submitted that section 4(6) and (7) of the 1999 Constitution merely restate the legislative competence and limit of the House of Assembly, while section 5(2) is subordinate or subject to other provisions of the Constitution. In other words, it was argued by the plaintiff/1st respondent that the exercise of executive power by the Governor under section 5(2) of the Constitution over Local Government in the State is subject of or limited to the matters which the House of Assembly has power to make laws by virtue of section 7(1) of the Constitution. It was therefore submitted that under section 7(1) of the Constitution the State House of Assembly is only constitutionally empowered to make laws that provide for a democratically elected Local Government system as constitutionally guaranteed and that the State Governor cannot use his executive powers otherwise than constitutionally as guaranteed by section 7(1) of the Constitution. It was therefore seriously contended that the dissolution of Ini Local Government Council and the appointment of a Caretaker Committee by the State Governor under the purported exercise of his executive powers by virtue of section 5(2) of the 1999 Constitution in replacement of a democratically elected council is a violation of section 7(1) of the Constitution. The cases of Akan v. A.G. Cross River State (1982) 2 FNR 177; Akinpelu v. A.G. Oyo State (1982) 2 FNR 48; 7 Unife L.R. 72; Okomo Oil Palm Co. Ltd. v. Iserienhien (2001) 6 NWLR (Pt.710) 660 at 689 were alluded to. Finally the plaintiff/1st respondent urged the court to dismiss the appeal and affirm the decision of the court below because the State Governor lacked the requisite authority to dissolve a democratically elected Local Government Council and replace same with the appellants as Caretaker Committee members.
I have summarised the arguments of the parties on the two sets of issues formulated in their briefs of argument for the determination of the appeal.
I shall now proceed to consider issue No.1 in the appellants’ brief of argument. It is not in controversy that the legislative powers of Akwa Ibom State House of Assembly (like those of other States of the Federation of Nigeria) are enshrined in section 4 subsections (6) and (7) of the 1999 Constitution which provide as follows:
“Section 4(6): The legislative powers of a State of the Federation shall be vested in the House of Assembly of the state.”
“Section 4(7): The House of Assembly of a State shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters that is to say:
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.” (Italics mine)
Also section 7(1) of the 1999 Constitution provides thus:
“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 their Councils.” (Italics are for emphasis).
In my view, the provisions of the 1999 Constitution set out above are clear and unambiguous.
It is a well established principle or canon of interpretation of statutes that where the provisions of a statute are clear and unambiguous, they must be so construed as to give effect to their ordinary or literal meaning and enforced accordingly. See Ekeogu v. Aliri (1991) 3 NWLR (Pt.l79) 258; Berliet Nig. Ltd. v. Kachalla (1995) 9 NWLR (Pt.420) 478; A.G. of the Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt.618) 187.
A combined reading of sections 4(6), 4(7)(b) and (c) and 7(1) of the 1999 Constitution leaves no one in doubt that the State House of Assembly is the only arm of government of a State that is vested exclusively with Legislative Power to make Law for the system of Local Government in the State which provides for democratically elected Local Government Councils as guaranteed under section 7(1) of the 1999 Constitution. In my view therefore, the Government of a State cannot validly and legally constitute a Local Government Council except under a law made by the State House of Assembly which provides for the Local Government Councils to be democratically elected. See Akan & Anor v. A.G. of Cross River State & Ors. (1982) 2 FNR 177.
The question posited by the appellants is whether the State House of Assembly cannot make a law to regulate a Local Government Council in the State plagued with crisis? In order to answer the question one has to seriously take into consideration the provision of section 7(1) of the 1999 Constitution which provides for the scope or limit of the legislative power of the State House of Assembly over Local Government Councils in the State. In the case of Victor Akan & Anor v. A.G. Cross River State & Ors. (1982) 2 FNR 177; the facts of which are not too dissimilar with the facts of the case in hand, the Governor of the then Cross River State purported to act under the authority of the law passed by the State House of Assembly name, the Dissolution of Local Government Councils Law No.4 of 1979, and dissolved all the Local Government Councils in the State and proceeded to appoint Caretaker Committee in their place. The plaintiffs in that case challenged in the High Court the power of the Governor to appoint such Caretaker Committee in respect of Oron Local government Council. It was contended for the defendants that the dissolution of Local Government Councils Law No.4 of 1979 was a valid law. In his judgment, Essin, J. of the Cross River State High Court, held that the said Dissolution of Local Government Councils Law No.4 of 1979 was in conflict with and violated section 7(1) of the 1979 Constitution of the Federal Republic of Nigeria (which is impari materia) with section 7(1) of the 1999 Constitution. The learned trial Judge accordingly declared the dissolution of Local Government Councils Law No.4 of 1979 unconstitutional, null and void and granted the plaintiffs the reliefs they had sought in that case. In as much as I do not doubt the legislative power of the State House of Assembly to make a law to regulate a Local Government Council in the State plagued with crisis, or to make a law to prescribe for an event upon which happening a Local Government Council is dissolved or the Chairman or Vice Chairman of a Local Government Council is removed or vacates his office, but any law made by the House of Assembly which provides for nomination of membership of a council or appointment of an Administrator or caretaker committee to replace a democratically elected council is inconsistent with the clear and unambiguous provisions of section 7(1) of the 1999 Constitution which guarantees democratically elected local government councils, and is therefore unconstitutional to the extent of the inconsistency.
Issue No.2 in the appellants’ brief of argument for determination is subsumed in the plaintiff/1st respondent’s sole issue which I find more embracing and appropriate for the determination of the appeal. For the sake of repetition, the plaintiff/1st respondent’s sole issue for determination of the appeal is as follows:
“Whether the Governor of Akwa Ibom state was competent to dissolve the democratically elected Ini Local Government Council constitutionally guaranteed under section 7 of the 1999 Constitution and replace same with the appellants as Caretaker Committee members.”
It is not disputed that the 2nd respondent (the Governor of Akwa Ibom State) on 13th July, 2000 dissolved Ini Local Government Council and set up a caretaker committee comprising the appellants herein. What is really in dispute is whether the 2nd respondent was competent to do so, and if so, under what law. The appellants have relied on the provisions of Section 5(2)(a) and (b) of the 1999 Constitution and argued that the 2nd respondent as the Governor of the Akwa Ibom State was competent to dissolve Ini Local Government Council and appoint the appellants as the Caretaker Committee. The appellants also relied on section 78 of Akwa Ibom State Local Government (Administration) Law 2000 to buttress their argument. The plaintiff/1st respondent on the other hand argued strenuously that the 2nd respondent was not competent to do what he did and relied heavily on section 7(1) of the 1999 Constitution and stressed that section 78 of Akwa Ibom State Local Government (Administration) Law 2000 is inapplicable having regard to its retrospectively which the courts look at with disfavour and disdain.
Section 5(2)(a) and (b) of the 1999 Constitution provides as follows:
“Subject to the provisions of this Constitution, the executive powers of a state
(a) shall be vested in the Governor of that state and may subject as aforesaid and to the provisions of any law made by a House of Assembly be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that state or officers in the public service of the State, and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
From the language of the above provisions, it is crystal clear that the exercise by the Governor of his executive powers is subject to the provisions of the Constitution itself and any law validly made by the State House of Assembly. In exercising his executive powers, the Governor must act within the Constitution and any law validly made by the House of Assembly. Put differently, there is nothing in our law like a blank and arbitrary power vested in or possessed by the Governor outside the Constitution and the law, and such a power if exercised, will lead to executive lawlessness and recklessness which have often times, been decried and condemned by the Nigerian society.
The Legal position therefore is that the Governor as the Chief Executive of a State is by the 1999 Constitution vested with executive powers of the State which extend to the execution and maintenance of the Constitution and all laws made by the State House of Assembly, and to all matters with responsibility to which the State House of Assembly has powers to make laws and these executive powers must be exercised by the Governor in accordance with the provisions of the Constitution and the law. I therefore reject the submission of the appellants that the 2nd respondent acted under section 5(2)(a) and (b) of the 1999 Constitution to dissolve Ini Local Government Council and set up a Caretaker Committee made up of the appellants in the place of the democratically elected Councilors of the said council. On the other hand, I entirely agree with the submission of the plaintiff/1st respondent that the dissolution of Ini Local Government Council and setting up of the Caretaker Committee by the 2nd respondent (the Governor of Akwa Thorn State) is a violation of section 7(1) of the Constitution. I hold the view that since section 7(1) of the 1999 Constitution guarantees a system of Local Government by democratically elected Local Government Councils the dissolution of Ini Local Government Council by the 2nd respondent and the appointment of the Caretaker Committee is inconsistent with section 7(1) of the Constitution and therefore null and void. See Akinpelu & Ors v. A.-G., of Oyo State (1982) 2 FNR 428. The learned trial Judge in his judgment at page 221 lines 24 to 27 of the record of appeal has this to say:
“A fortiori, the setting up of a Caretaker Committee to replace a democratically elected Council is clearly unconstitutional, illegal and ultra vires the powers of the 2nd respondent.” I completely agree with him.
The next point to consider is whether sections 78 of Akwa Ibom State Local Government (Administration) Law 2000 is of any assistance to the appellants who heavily relied on it to justify the dissolution of Ini Local Government Council and setting up a Caretaker Committee. Section 78 of Akwa Ibom State Local Government (Administration) Law 2000 reads:
“Where the peaceful functioning of a Local Government Council is hindered by internal crisis, the House of Assembly of the State shall have power to intervene; and shall by a resolution of two-third majority request the Governor to dissolve the council and appoint an administrator to administer the area for a period not exceeding three months in the first instance pending a bye-election in the area which shall be conducted by the Electoral Commission.”
This law was signed by the Governor of the state into Law on 14/9/2000, but it took retrospective effect from 2/6/2000 as clearly shown in section 84 thereof. Section 84 provides for the short title and commencement date. It states:
“This law may be cited as the Local Government (Administration) Law 2000 and shall be deemed to have come into force on the 2nd of June, 2000.”
The dissolution of Ini Local Government Council and appointment of a Caretaker Committee by the Governor took place on 13/7/2000, while the Local Government (Administration) Law 2000 was promulgated on 14/9/2000 when it was signed by the Governor and back dated to 2/6/2000 in order to retrospectively cover the event or crisis in Ini Local Government Council prior to and after the dissolution of the said Council and appointment of a Caretaker Committee. One of the bones of contention in the present case is whether or not the Akwa Ibom State Local Government (Administration) Law 2000 is a retrospective law. In Adesanoye v. Adewole (2000) 9 NWLR (Pt.671) 127 the Supreme Court classified retrospective legislation into three classes, namely:
(a) Statutes that attach benevolent consequences to a prior event.
(b) Statutes that impose a penalty on a person who is described by reference to a prior event, but that penalty is not a consequence of the event, and
(c) Statutes that attach prejudice consequences to a prior event.
There is under our law a presumption against retrospective legislation and it is the third class above that attracts the presumption against the retrospective effect when it takes away or impairs any vested right acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed. However, whether a retrospective operation will be given to such a statute will depend on the language of the statute and the peculiar facts of the case. In the instant case, the retrospective operation of the Local Government (Administration) Law 2000 that has dominated the arguments of the parties concerns only section 78 of that law, which I have reproduced above. There is a presumption that the legislature does not intend what is unjust and therefore the courts frown and lean against giving retrospective operation to certain Statutes.
Retrospective Statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed. The principle is couched in the terse latin maxim “lex prospicit non respicit. ” which is “the law looks forward and not backward.” However, the presumption is rebuttable either by the express language of the enactment used or by necessary implication.
It is not contested that in law the legislature has the authority and competence to make retrospective legislation within the Constitution which allocates legislative functions to it. But an interpretation giving a retrospective effect to a Statute should not be readily accepted where that would affect a vested right or impose liability or disqualification for past events. See Adesanoye v. Adewole (supra) at page 147. In the instant case, the plaintiff/1st respondent was elected as the Vice Chairman of Ini Local Government Council under the ticket of one Emmanuel Ebe who was elected as the Chairman of the said Council in an election conducted and concluded under the Local Government {Basic Constitution and Transitional Provisions) Decree No. 36 of 1998. Although Decree No.36 of 1998 has been repealed by the Constitution of the Federal Republic of Nigeria (Certain Constitutional Repeals Decree No.63 of 1999, yet by the provision of section 6(1)(c) of the Interpretation Act, 1990, (an existing law by virtue of the provision of section 315 of the 1999 Constitution) the right vested in the plaintiff/1st respondent by virtue of section 7 of Decree No. 36 of 1998 (now repealed) for a three-year tenure of office in Ini Local Government Council is, in my opinion, preserved. For easy of reference section 6(1)(c) of the Interpretation Act provides thus:
“The repeal of an enactment shall not –
(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment.”
Thereafter, the conclusion which I reach from the foregoing is that section 78 of Akwa Ibom State Local Government (Administration) Law 2000, cannot be construed retrospectively to apply to the plaintiff/1st respondent whose vested right and, I dare say, obligation under the repealed Decree No. 36 of 1998 for a three-year tenure in office is preserved.
Another angle to this matter is whether section 78 of the Local Government (Administration) Law 2000 was strictly complied with by the 2nd respondent when he dissolved Ini Local Government Council, and appointed a 5 man Caretaker Committee. This is quite a straight-forward matter. I cannot do more than refer to the said law and submit that the 2nd respondent did not comply with section 78 of the law. Section 78 provides for the appointment of an Administrator but the 2nd respondent appointed a 5 man Caretaker Committee instead of an Administrator upon the dissolution of the Local Government Council. Section 78 also provides for a resolution of two-third majority by the House of Assembly requesting the Governor to dissolve a crisis-ridden Council, but this was not complied with. Further more, it is evident from paragraph 14 of the counter affidavit of one Benson Ononokpono, a Principal Litigation Officer in the Ministry of Justice, Uyo, who deposed in defence of the 2nd respondent, that the dissolution of Ini Local Government Council was not based on the recommendation of the House of Assembly. Therefore, from all these indications, the provisions of section 78 of Akwa Ibom State Local Government (Administration) Law 2000 was not complied with before the 2nd respondent purportedly dissolved Ini Local Government Council, and constituted a 5 man Caretaker Committee for the said council. Even if the 2nd respondent had complied with the provision of section 78 of the Local Government (Administration Law) 2000, such appointment would still be unconstitutional because the appointment of an Administrator as provided in section 78 of that law would not be synonymous with the establishment of democratically elected Local Government Councils enshrined under section 7(1) of the 1999 Constitution. In my view, section 78 of Akwa Ibom State Local Government (Administration) Law 2000 is inconsistent with section 7(1) of the 1999 Constitution and is therefore unconstitutional.
In the circumstances, therefore, the 2nd respondent was not competent to dissolve Ini Local Government Council and appoint a Caretaker Committee for the council. The action of the 2nd respondent is therefore unconstitutional, null and void and of no effect whatsoever.
In the final result therefore, I hold that this appeal lacks merit and it is hereby DISMISSED with costs assessed at N5000.00 in favour of the plaintiff/1st respondent.
Other Citations: 2002)LCN/1161(CA)
