Governor, Ekiti State And Ors V. Prince Sanmi Olubunmo & 13 Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

I had a preview of the lead judgment of my learned brother Nweze JSC just delivered. I agree with his lordship’s reasoning and conclusion that the appeal lacks merit and that it be dismissed. I offer a few words of mine by way of emphasis and support. I adopt the summary of facts that brought about appeal contained in the lead judgment. The issues the appeal raises, in the main touch on the hierarchy of legislation of legislator’s as well as the import and extent of the powers of the Court of Appeal, the lower court, under by Section 15 of the Law establishing the court.

The appellants had, pursuant to Section 23B of the Ekiti State Local Government Administration (Amendments) Law ?C01 purportedly dissolved all the sixteen democratically elected Local Government Councils in the State and appointed unelected care taker committees in their place. By their amended originating summons/the respondents challenged the dissolution of the councils at the trial court. They asserts 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 29″ 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 appellant’s preliminary objection and declined jurisdiction. Dissatisfied, the respondents appealed to the Court of Appeal, the lower court, which allowed the appeal and invoked section 15 of the Court of Appeal Act and upon considering the respondents’ Jain granted them the reliefs sought. The instant appeal arises from the lower court’s decision against the appellants. Appellants’ chief argument is that the lower court is wrong in its finding that Section 23B (i) and (ii) of the Ekiti State Local Government Administration (Amendment) Law 2001 which, duly empowered the State Governor to dissolve the sixteen Local Government Councils stands in conflict with Section 7(1) of the 1999 Constitution as amended. It is a legislation, it is argued, that is lawfully passed by the Ekiti State House of Assembly given its powers under Section 4(6) and 7(1) of the very Constitution the lower court held has been breached. Appellants further contend that there is no inconsistency between Section 23B (I) and (II) of the Ekiti State Local Government Administration (Amendment) Law invoked Co remove the respondents in the interest of the public as well as Section 7 of the Constitution the lower court founded its judgment on. Relying inter-alia on Action Congress V. INEC (2008) 6SC (Pt.11) 222 and Attorney General of Ondo Slate V Attorney General of Federation (2006) 6 SC (Pt. 1) l the appellants urge that the appeal be allowed. The respondents insists that appellants purported dissolution of the sixteen democratically elected Local Government Councils pursuant to Section 23B of the Local Government Administration (Amendment) Law that is inconsistent with Section 7(1) of the 1999 Constitution as amended and the lower court is right to have held the dissolution null and void. The court in the face of the injury suffered by the respondents and the fact of the expiration of their tenure, ‘awfully invoked its powers under Section 15 of the Court of Appeal Act in addressing their pains. Relying on the decision Attorney General Abia State V. Attorney General of federation (2006) 16 NWLR (Pt 1005) 265 at 281 – 282 and more particularly Attorney General Plateau State V. Goyol (2007) 16 NWLR (Pt 1059) 94 and Eze V. Governor of Abia State (2010) 13 NWLR (Pt 1216) 324, the respondents urge that having railed to establish the over – riding public interest that inform the dissolution of the councils, this Court upholds the lower court’s decision. The primary issue in this appeal is whether in the exercise of the powers the appellants assert Section 23B of the Ekiti State Local Government Administration (Amendment) Law 2001 confers on them to dissolve the sixteen democratically elected councils the appellants have acted within the purview oi the Constitution and the enabling law. 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.

In the case at hand, I am of the firm and considered view that Section 23B of the Ekiti State Local Government Administration (Amendment) Law which empowers the Governor to dissolve a democratically elected council “for overriding public interest subject to the two-thirds majority approval of members of the House of Assembly” only is not by its very tenor inconsistent with Section 7(1) of the 1999 Constitution that guarantees the existence of the councils. What is unconstitutional is the use to which the Governor-invoked his powers as lawfully conferred by the legislation A lawful resort to the Section presupposes the existence of facts from which the “over-riding public interest” behind the dissolution of the council(s) by the Governor may be really inferred. In the instant case, the appellants have failed to demonstrate these facts. Where, for example, the peaceful functioning of a Local, Government Council, for whatever reason, has become impossible, the House of Assembly may by a resolution of two thirds majority approve the Governor’s -quest to dissolve the council(s). It is unthinkable to imagine that such a situation would engulf the entire sixteen councils at the same time. Even if the sixteen local government councils had been so afflicted, it remains the appellants’ burden to so establish. Having failed to discharge this burden, the lower court is right not only in its decision that the trial court had wrongly declined jurisdiction but also in the decision, pursuant to Section 15 of the law establish by the court, that, on the merits, the Governor’s dissolution of the sixteen democratically elected councils was unconstitutional and void. The Governor’s exercise of his powers under the enabling law is arbitrary and unpardonable. For the foregoing and the more detailed reasons advance in the lead judgment I also dismiss the unmeritorious appeal. I abide by the consequential orders made in the lead judgment.

SC.120/2013