Nwokedi V. Anambra State Govt & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
ABDU ABOKI, J.S.C.
This appeal emanated from the judgment of the Court of Appeal, sitting at Enugu, delivered on the 6th of December, 2013.
The Appellant as Plaintiff took out a Writ of Summons seeking the following reliefs against the Respondents:
i. Declaration that the Plaintiff has complied with the provisions of the State Proceeding Law as well as the Local Government Law relating to service of notice which is the maximum legal requirement.
ii. N5.5 Million Naira being underpayment of Plaintiff’s salaries from June, 1999 to May, 2003.
iii. N1.14 Million Naira being Plaintiff’s entitlement for accommodation.
iv. N1.14 Million Naira being Plaintiff’s entitlement as furniture allowance.
v. N1.14 Million Naira being Plaintiff’s entitlement as severance gratuity.
v. An order directing the 1st Defendant to pay the Plaintiff the claimed sums from source, out of the State Joint Local Government Account, from the monies due to the 2nd Defendant from the said account.”
The story of the Appellant is that he was a Councillor duly elected in 1999 and served the 2nd Respondent until the termination of the tenure of his office in May, 2002. In the course of his service as Councillor, there arose controversies with respect to the proper remuneration payable to him. Eventually, the Appellant’s remuneration formed the subject matter of recommendation of the Federal Revenue Mobilization Allocation and Fiscal Commission, which fixed salaries of all Political Office Holders at all levels of Government and sent out circulars to that effect. Subsequently, the 1st Respondent, through the Anambra State House of Assembly, passed a law called (the Anambra State of Nigeria, Public Officers’ Salaries Law No. 7 of 2001), which codified the Circular of the Federal Revenue Mobilization, Allocation and Fiscal Commission. According to the Appellant, since the passing of the Law No. 7 of 2001, the Appellant, through their umbrella body; the Anambra State Councillors Forum (ASCOF) made several representations to the Respondents to pay him his salary, all to no avail.
The Respondents denied the claims of the Appellant and posited that the Appellant’s claim is unconstitutional, being in breach of Sections 80(1) and 124 of the CFRN 1999, as amended.
At the conclusion of the trial, the learned trial judge in his judgment delivered on the 26th of April, 2006, dismissed the Appellant’s case and held that the Anambra State House of Assembly exceeded her powers when she enacted Law No. 7 of 2001, purporting to have charged salaries and emoluments of Councillors into the Consolidated Revenue Fund of the State.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below via a notice of appeal containing twelve Grounds of Appeal. The lower Court, in its judgment dismissed the appeal, and held as follows:
“It is pertinent to note that the crux of this matter is whether Councilors can be appropriately described as public officers in the Public Service of a State (in this case Anambra) so as to benefit or be covered by Law NO. 7 of 2001, the Anambra State Public Officers’ Salaries Law, 2001. This question becomes even more pertinent by virtue of the chapeau to the law which purports to derive its essence from Section 124(1) of the Constitution of the Federal Republic of Nigeria in which the House of Assembly considered Councilors as part of the Public Officers mentioned in Subsection (4) of Section 124 of the Constitution. Moreover Section 2 of the Public Officers’ Salaries Law, 2001 defines “Holders as holders only of Public Offices Stated hereunder (that is in the Law). However, contrary to the misconception of the learned Counsel to Appellant and indeed the House of Assembly, the Appellant and his colleagues are not cognizable under the Constitution either in Sections 84, 124(4) or 32(d), item N, Part 1 of the Third Schedule to the 1999 Constitution and/or Section 6(d) of the Revenue Mobilization Allocation and Fiscal Commission, as Public Officers, for purposes of benefiting from their salary being prescribed by the House of Assembly and charged into the Consolidated Revenue Fund of the State same having been fixed by the Revenue Mobilization Allocation and Fiscal Commission… ln other words, by the deliberate legislative scheme to exclude the Chairman and Councillors of Local Government Counsel from those public officers or political office holders whose salaries shall be determined by the House of Assembly and their remunerations charged upon the Consolidated Revenue Fund of Anambra State subject to the approved limit of the Revenue Mobilization Allocation and Fiscal Commission, they were not mentioned either in the Constitution, the Revenue Mobilization Allocation and Fiscal Commission Act nor the Third Schedule to the Constitution where provisions for the remuneration of such public officers and political office holders are made. Accordingly, the Appellant should not have been included as one of the beneficiaries of the scheme by either the House of Assembly or the Revenue Mobilization Allocation and Fiscal Commission.”
The Appellant, thoroughly dissatisfied with this judgment of the Court below, appealed to this Court, vide his amended Notice of Appeal, filed on the 13th October, 2021, but deemed filed on the 8th of November, 2021, upon three grounds.
From the three grounds of appeal, learned Counsel for the Appellant distilled two issues for determination in the Appellant’s Amended Brief of Argument filed on the 13th October, 2021 but deemed filed on the 8th of November, 2021. They are:
- Whether the Court of Appeal was correct when they(sic) held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended?
- Whether the Court of Appeal was correct, when they(sic) held that the Law No. 7 of 2001 Anambra State Public Officers’ Law, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended, if yes, did the trial Court have the jurisdiction and competence to declare it null and void?
These issues were adopted by learned counsel for the Respondents, in the Respondents’ brief of argument deemed filed on the 8th of November, 2021.
ISSUE ONE
Whether the Court of Appeal was correct when they (sic) held that Local Government Councilors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended?
It is submitted for the Appellant, that the Court below was wrong to have held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended. Learned Counsel for the Appellant contended that the use of the word “including”, after the words “Political Office Holders”, in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, means that all Political Office Holders, outside of those specifically mentioned, are included. He maintained that the listing of those officers, cannot be read to exclude other Political Office Holders as any such interpretation will harm the spirit and the letters of the Constitution.
Learned Counsel for the Appellant submitted that though Section 6(d) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap 392, Laws of the Federation, 1990, restricts the powers of the Commission to fix remuneration of certain officers, as specified in Parts A and B of the First Schedule to the Act, Section 6(f) of the same Act makes provision for the expansion of the functions of the Commission, through the means of any other enactment.
He posited that this Court has in other decisions held that when the word “include” is used in the definition section of a statute, it is to enlarge the meaning of the expression occurring in the body of the relevant statute or constitutional provision. He called in aid, the following cases:
UTIH v. Onoyivwe (1991) NWLR (Pt. 166) 221;
Mandara v. AGE FED. (1984) SCNLR 31 at 343-344;
Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661
He therefore urged this Court to hold that Local Government Councillors come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, and resolve this issue in favour of the Appellant.
Reacting to the above, it is submitted for the Respondent that it is not within the powers of the Revenue Mobilization, Allocation and Fiscal Commission to determine the remuneration of Local Government Councillors notwithstanding the provisions of Section 6(f) of the Revenue Mobilization, Allocation and Fiscal Commission Act, CAP 392 Laws of the Federation 1990, and, in Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, conferring power to the Commission to determine remuneration for Political Office Holders.
Learned Counsel for the Respondent contended that a Councillor, though a political office holder, does not come within the purview of those office holders whose salaries shall be determined and charged upon by the Consolidated Revenue Fund. He invited the attention of this Court to Section 6(1)(d) PART A of the RMAFC ACT, CAP 392, LFN 1990.
It is further submitted for the Respondent that the principle of interpretation to be applied to the provisions of the Constitution is the maxim “expressio unius est exclusio atenus” that is, to express one thing, is to impliedly exclude another. He argued that where a statutory proposition covered a number of matters but in fact mentioned only some of them, the rest are taken to be excluded. He placed reliance on the case of Oni & Ors v. Governor of Ekiti State (2019) LPELR 46413 SC.
In the view of the learned Chief State Counsel, since Paragraph 32(d) of the Third Schedule to the Constitution has empowered the Commission to determine the remuneration of Political Office holders specifically mentioned or enumerated in that sub-paragraph of the Schedule, Councillors are excluded from the arrangement. He called in aid these cases:
Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646 at 669 670;
Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) FWLR (Pt. 79) 1431 at 1473 – 1474.
Accordingly, he posited that the learned Counsel for the Appellant misconceived the point when he argued that an elected Councillor is a Legislator in the Third Tier of Government listed after the word “including”.
To buttress the above argument, he referred this Court to Section 318 of the Interpretation Section of the 1999 Constitution which defines Legislative House “to mean the Senate, House of Representatives or the House of Assembly of a State” without any mention of Legislative House of the Local Government. He further placed emphasis on Section 124 of the 1999 Constitution to contend upon reproduction of all the subsections that the Councillors are not among Officers to whom the Revenue Mobilization, Allocation and Fiscal Commission is empowered to fix their remuneration and allowances.
This Court is urged to resolve this issue against the Appellant and hold that Local Government Councillors do not come within the ambit of Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended.
In deciding this issue, it would be recalled that the summary of the Appellant’s argument is that the two Courts below were wrong to hold that Local Government Councillors do not come within the ambit of Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended. The Respondents argued otherwise.
A careful perusal of the submissions of learned Counsel on both sides would easily reveal that this issue simply calls to question the extent or limits of the powers or competence of the Anambra State House of Assembly as donated to it by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to fix salaries of public officers and political office holders which shall be charged upon the Consolidated Revenue Fund of the State. In support of their respective positions, several constitutional and statutory provisions were thrown up. These constitutional and statutory provisions shall be considered in the course of this judgment, vis-a-vis the circumstances of this case.
To start off, there is no dispute that by the combined effect of Section 4(6) and (7)(b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a State House of Assembly is empowered to make laws for the peace, order and good government of a State. Section 4 Subsection 6 reads thus:
“The Legislative Powers of a State of the Federation shall be vested in the House of Assembly of the State.”
Under Subsection (7)(a) (b) and (c) thereof:
“(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 in the Exclusive Legislative List set out in Part 1 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.
Consequent upon the general legislative powers conferred upon a State House of Assembly by Subsections (6) and (7) of Section 4 of the 1999 Constitution, as amended; Section 124 thereof empowers the State House of Assembly to prescribe remuneration for certain categories of Public Officers and Political Office Holders. The Section stipulates inter alia that:-
“124-(1) There shall be payable to the holders of the offices mentioned in this Section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission.
(2) The salaries and allowances payable to the holders of the offices so mentioned shall be charged upon the Consolidated Revenue Fund of the State.
(3) The salaries payable to the holders of the said offices and their conditions of service other than allowances shall not be altered to their disadvantage after their appointment.
(4) The offices aforesaid are offices of the Governor, Deputy Governor, the Auditor-General of a State, Auditor-General of a Local Government Councils of State, and Chairman and Members of the following bodies, that is to say, the State Civil Service Commission, the State Judicial Service Commission, the State Local Government Service Commission.”
Pursuant to the provisions of Section 124 of the 1999 Constitution, as amended, the Anambra State House of Assembly proceeded to enact the Law No. 7 of 2001 to provide for salaries of Public Officers in Anambra State and for related purposes. The Law No. 7 of 2001, states inter alia:
“WHEREAS:
Section 124(1) of the Constitution of the Federal Republic of Nigeria provided that there shall be paid to the holders of the offices mentioned in this section such remuneration and salaries as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by, the Revenue Mobilization Allocation and Fiscal Commission.
BE IT ENACTED by the House of Assembly of Anambra State of Nigeria:
- This law may be cited as the Anambra State Public Officers’ Salaries Law 2001 and shall be deemed to have come into effect on the 29th day of May, 1999.
- In this law except where the context otherwise requires-
“Consolidated Revenue Fund” means the Fund as cognizable under the Constitution.
“Constitution” means the Constitution of the Federal Republic of Nigeria 1999;
“Holders” refers to holders of Public Offices stated hereunder;
“House of Assembly” refers to the Anambra State House of Assembly.
- The Salaries of Public Officers in Anambra State shall be as recommended by the Revenue Mobilization Allocation and Fiscal Commission as found in the Schedule.
- The remuneration, salaries and allowances payable to the holders of the offices mentioned in Section 6 shall be charged upon the Consolidated Revenue Fund of the State.
- The remuneration and salaries payable to the holders of the said Offices and their conditions of services other than allowances shall not be altered to their disadvantages after their appointment.
- The offices aforesaid are those of:
Governor, Deputy Governor, Secretary to the State Government etc. Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisors, Special Advisers/ P.A to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader, Councillors.”
It is manifest from the above, that Law No. 7 of 2001 included Councillors as one of the Political Office Holders, whose salaries and remunerations are to be charged upon the Consolidated Revenue Fund of the State.
Learned Counsel for the Appellant herein has argued that a Councillor is a political office holder. That may be so. The issue now is whether he comes within the purview of those officers whose salaries shall be determined and charged upon the Consolidated Revenue Fund of the State by the Revenue Mobilization Allocation and Fiscal Commission so as to warrant judgment being entered in his favour.
To answer this question, I must have recourse to the provisions of the Revenue Mobilization Allocation and Fiscal Commission CAP. 392 Laws of the Federation of Nigeria 1990, hereafter referred to as “the RMAFC Act”, to determine whether the Appellant is actually a beneficiary.
Section 6 of the RMAFC Act stipulates the powers of the Commission as regards remuneration. It provides inter alia:
“6(1) – The Commission shall have power to-
(d) determine the remuneration appropriate to the holders of the offices as specified in Parts A and B of the First Schedule to this Act.”
Hereunder reproduced, is Part A and B of the First Schedule to the RMAFC Act:
FIRST SCHEDULE
[Section 6 (1) (d)]
PART A
Offices
President, the Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, Judge of the Federal High Court in the Federal Capital Territory, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Inspector- General of Police, the Auditor-General of the Federation and the Chairman and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the National Electoral Commission, the Federal Judicial Service Commission, the National Population Commission, the Revenue Mobilisation, Allocation and Fiscal Commission, the Nigeria Police Council and the Public Complaints Commission.
PART B
Offices
Governor, the Deputy Governor, Chief Judge of a State and the Judge of the High Court of a State, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor-General of a State, the Auditor-General of the Local Government Councils of a State and Chairmen and members of the following bodies, that is to say, the State Civil Service Commission, the State Judicial Service Commission and the State Local Government Service Commission.
It follows therefore that the Section 6(1)(d) of the Revenue Mobilization and Fiscal Commission, Act makes no mention of a Councilor as one of those Public Officers or Political Office Holders to benefit from payment of salary and emolument from the Consolidated Revenue Fund and whose salary shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission.
The argument of learned counsel for the Appellant is that the scope of political office Holders, whose names were not mentioned, have been expanded vide Section 6(1)(f) of the Revenue Mobilization Allocation and Fiscal Commission Act which provides that the Commission shall have power to – “(f) discharge such other functions as may be conferred on it (Commission) by the Constitution of the Federal Republic of Nigeria, this Act, or any other Act of the National Assembly.”
This stance by learned counsel is with respect, untenable. The simple reason is because those other functions that the Commission ought to perform or upon which extra power may be conferred on it by the Constitution, the Act or any other Act of the National Assembly, do not envisage expanding the scope of Political Office Holders or Public Officers whose names have not been mentioned either by the Constitution, the RMAFC Act itself or any Act of the National Assembly. Assuming (but without conceding) that the scope is to be expanded, in the clear and unambiguous words of Section 6(1)(f) of the RMAFC Act, it is only the RMAFC Act itself; the Constitution or another Act of the National Assembly, that can expand the scope or powers thereof and not an inferior Legislative House like that of Anambra State House of Assembly.
I am therefore in total disagreement with the submissions of learned Counsel for the Appellant that the provisions of Section 32(d) Item N, Part 1 of the Third Schedule of 1999 Constitution, as amended, expands the scope of the Commission to include Councillors. The Section states inter alia that:
“32. The Commission shall have power to –
(d) determine the remuneration appropriate for political office holders, including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislatures and the holders of the offices mentioned in Section 84 and 124 of this Constitution.”
The import of Section 32(d) Item N, Part 1 of the Third Schedule of 1999 Constitution, as amended, (which in my view, is an assemblage of Sections 84 and 124 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, as well as Section 6(1)(d) and (f) of the RMAFC Act) is that the inclusion of Local Government Councillors by the Anambra State Law No. 7 of 2001, in the List of Political Office Holders or Public Officers of whom their salaries shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission and charged upon the Consolidated Revenue Fund of Anambra State, is at variance with the express provisions of the 1999 Constitution, as amended.
Learned Counsel for the Appellant had contended that as a Councillor of the Onitsha Local Government, the Appellant is a Legislator as envisaged by the Section 32(d), Item N, Part 1 of Schedule of the Constitution. As rightly held by the Court below, it would appear there was a legislative device to deliberately exclude political office holders like Councillors who are legislators as of right on their Local Government tier of Government. However, they are not legislators properly so called as envisaged by the Constitution in Section 318(1) thereof, which states that:
“In this Constitution, unless it is otherwise expressly provided, or the context otherwise requires –
Legislative house means that Senate, House of Representatives or a House of Assembly.”
The Legislative Council of a Local Government is not mentioned by the Constitution so by extension, a Councillor is not recognized by the Constitution as a member of a Legislative House properly so-called. Again, Section 318(1) of the 1999 Constitution, as amended, defined the “Public Service of a State” to mean the service of the State in any capacity in respect of the Government of the State and includes service as mentioned in sub-paragraphs (a) to (g) thereunder.
What is more, Section 120 of the CFRN 1999, as amended, which in Subsection (1), established the Consolidated Revenue Fund of the State, stipulates in Subsection (2) thereof, that:
“No money shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the fund by this Constitution, or where the issue of those moneys has been authorised by an Appropriation Law, Supplementary Appropriation Law or Law passed in pursuance of Section 121 of this Constitution.”
(underlining mine).
It follows therefore, that any expenditure that is to be charged upon the fund by this Constitution, SHALL be as stipulated by Section 124(4) of the CFRN 1999, as amended.
The consequence of the above is that the inclusion of Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisors, Special Advisers/P.A. to the Chairman, leader of the Local Government Legislative Council, Deputy Leader, and Councillors, by the Anambra State Law No. 7 of 2001, in the List of Political Office holders or Public Officers whose salaries shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission and charged upon the Consolidated Revenue Fund of Anambra State, is against the express provisions of Section 124(4) of the 1999 Constitution, as amended.
I therefore answer the question “Whether the Court of Appeal was correct when they(sic) held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended”; in the affirmative and resolve this issue against the Appellant.
ISSUE TWO
Whether the Court of Appeal was correct, when they (sic) held that the Law No. 7 of 2001 Anambra State Public Officers’ Law, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended, if yes, did the trial Court have the jurisdiction and competence to declare it null and void?
It is the submission of learned counsel for the Appellant that the CFRN 1999, as amended, has made ample provisions for the House of Assembly of a State to fix the salaries of political office holders and at the same time, charge same to the Consolidated Revenue Fund of the State. He cited and relied on Section 4(7)(2) Second Schedule, Part II, Item A, Section 2(3), Section 120(1-4).
It is his view that the Anambra State House of Assembly, acting under Section 4(7)(2) Second Schedule, Part II, Item A, Section 2(3), Section 120(1-4) of the CFRN 1999, made Law No. 7 of 2001, (Anambra State Public Officers’ Law) and the charged the salaries of Councilors to the Consolidated Revenue Fund of Anambra State. The Court below was therefore wrong to hold, as it did, that the Anambra State House of Assembly, in enacting Law No.7 of 2001, (Anambra State Public Officers’ Law), acted ultra vires its powers. He commended the attention of this Court to the unreported case of Anambra State Government & Anor v. Gloria Obiora (CA/E/400/2008, Delivered on 10/06/2013).
Learned Counsel argued that with the passing into law of Law No. 7 of 2001 by the Anambra State House of Assembly, the recommendation of the Revenue Mobilization and Fiscal Commission disappears and loses its character, in deference to the Law No. 7 of 2001. Learned Counsel for the Appellant went further to posit that assuming, but without conceding, that the Anambra State House of Assembly did not have the vires to make the Law No. 7 of 2001, the trial Court lacked the jurisdiction to declare the Law No. 7 of 2001 a nullity.
He urged this Court to resolve the issues raised in this appeal in favour of the Appellant and allow the appeal, and grant the Appellant the reliefs he claimed.
In his response, it is submitted for the Respondent that the Court of Appeal was indeed correct, when it held that the Law No. 7 of 2001, (Anambra State Public Officers’ Law), was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended.
Learned counsel for the Respondent called this Court’s attention to Sections 4(6) and (7), and 124(1) and (4) of the 1999 Constitution, as amended, and argued that the Anambra State Public Officers’ Salaries Law No. 7 of 2001 is unconstitutional, illegal and invalid, as the Revenue Mobilization Allocation and Fiscal Commission has no constitutional power to prescribe for the remuneration and allowances of Local Government Councilors and the said salaries and allowances of the Appellant cannot be charged upon the Consolidated Revenue Fund of the State as provided in the Anambra State Public Officers’ Salaries Law No 7 of 2001.
On the question as to who prescribes salaries and remuneration for Local Government Councillors, the learned Counsel referred this Court to Section 7(1) of the 1999 Constitution which provides for the system of Local Government to be entrenched in every State by a Law to make for their establishment, structure, composition, finance and functions and pursuant to this Constitutional provision, the Anambra State House of Assembly promulgated the Local Government Law No. 5 of 2000 (as amended) wherein provisions were made for the establishment, structure, composition, finance, and function of Local Government Council and related matters. He referred to Section 12 of the Anambra State Local Government Law No. 5 of 2000, where the sources of Revenue of the Local Government Councils include inter alia, monies from the State’s internally generated funds/revenue, allocations due to them from the State and Local Government Joint Account Distribution Committee (STALDAC) and other monies lawfully derived by the Local Government which form the Consolidated Revenue Fund of the Council.
The learned Counsel for the Respondents explained that it is from this fund that a detailed estimate of its revenue and expenditure is prepared by the Chairman and sent to the Council (Legislature) which shall consider and approve same with or without modification. In support of this position, he referred to Section 18 of the Local Government Law of Anambra State No. 5, 2000.
It was the further contention of the Respondents that the Appellant while in office was paid his salaries and allowance from the Consolidated Revenue Fund of the 2nd Respondent as provided under Section 12 of the Anambra State Local Government Law (as amended) and as approved in its budget which was one of the functions of the Appellant in his capacity as Councillor. Further reference was made to Section 43(1)(a) of the Local Government Law (as amended) wherein the Council is conferred with the power to debate, approve and amend the Annual Budget of the Local Government subject to the Chairman’s veto which may be set aside by two thirds majority. He observed that the Appellant while in office never paid his salaries and allowances from the Consolidated Revenue Fund of the State nor did the Anambra State House of Assembly authorize in any of its Appropriation Law at that time that salaries and allowances of Councillors be paid as expenditure in the State Budget as provided under Section 120 and 121 of the 1999 Constitution.
Having stated that the Local Government Law promulgated by the Anambra State House of Assembly made provision for the Consolidated Revenue Funds of the Local Government Councils and also empowered their Councillors (Legislative Houses) to make Annual Budgets for its revenue expenditure, the learned Counsel there posed the question whether the Anambra State Public Officers’ Salaries Law No. 7 of 2001 which purported to charge the salaries and allowances of Local Government Councillors to the Consolidated Revenue of the State is valid and in conformity with the provisions of the Constitution?
In answer to the question, the learned Counsel for the Respondent urged us to consider the provisions of the following sections of the Constitution namely: 4(6) and (7), 124(1) and (4) as well as Sections 3, 4 and 6 of the Anambra State Public Officers’ Salaries Law 2001, which he reproduced and noted that the plenitude of the Legislative Powers of the House of Assembly is as contained in these Sections and that Section 4(7) of the Constitution in particular empowers the House of Assembly of a State to make laws in accordance with the Constitutional provisions.
The learned State Counsel observed that amongst those mentioned by the Anambra State Public Officers’ Salaries Law No. 7 of 2001, whose salaries and allowances shall be charged into the Consolidated Revenue Fund of the State are:
“Chairman of Local Government, Vice Chairman, Secretary to Local Government Supervisor, Special Adviser/PA to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader and Councillors.”
Going by the above provisions of the law and Constitution, it was the contention of the learned Counsel that the Anambra State Public Officers’ Salaries Law was made contrary to the provisions of the Constitution.
Relying on the case of Attorney-General Bendel State v. Attorney-General of Federation (2001) FWLR (Pt 65) 448 at 556, learned counsel for the Respondent asserted that the purported unpaid arrears of salaries, accommodation, furniture allowance and severance allowance gratuity claimed by the Appellant based on the recommendation of the Revenue Mobilization Allocation and Fiscal Commission and the Anambra State Public Officers, Salaries Law No. 7 of 2001 is unconstitutional, invalid and illegal as the Revenue Mobilization Allocation and Fiscal Commission has no Constitutional Power to prescribe remuneration and allowances for Councillors and the said salaries and allowances cannot be charged into the Consolidated Revenue Fund of the State as provided in the Anambra State Public Officers’ Salaries Law, No. 7 of 2001.
In view of the foregoing, the learned Counsel for the Respondents approved the view of the learned trial Judge that the Anambra State House of Assembly exceeded its powers when it made the Public Officers’ Salaries Law 7 of 2001.
On whether the trial Court had the jurisdiction and competence to declare the Anambra State Public Officers’ Salaries Law No. 7 of 2001, null and void, it is submitted for the Respondent that by virtue of Section 1(3) of the 1999 Constitution, as amended, the trial Court had the jurisdiction to hold that Law No. 7 of 2001 is inconsistent with the provisions of the 1999 Constitution, as amended.
This Court is urged to resolve this issue against the Appellant, and dismiss the appeal.
The main contention here, is whether the Anambra State Public Officers’ Law, No. 7 of 2001, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended.
It is settled law that the power bestowed on the legislature, in this case, the Anambra State House of Assembly, to make, enact and pass laws is undiluted so long as any laws passed by it is within its own legislative competence and authority. Not only can the legislature enact laws, it can also amend any existing law passed by that arm of government as circumstances may permit.
In Amoshima v. State (2001) LPELR 471 (SC), this Court stated that:
“It is trite law that whereas it is the duty of the legislature to enact law, that of the judiciary is to interpret the laws so made. It follows therefore that where there is dissatisfaction with the State of the laws as it exists, and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendment thereto. The duty both to make and amend laws so made belongs exclusively, by constitutional arrangement, to the legislature as provided under Section 4 of the Constitution of the Federal Republic of Nigeria, 1999.”
It therefore stands to reason the power to make laws, and in appropriate cases, amend the laws, is vested in National or State Assembly.
But where a statute is enacted in breach of the Constitution, the Courts must come in to stop the breach. This the Court can do only by one or more parties seeking the Court’s jurisdiction to declare the Statute void. By the express provisions of Section 4(8) of the CFRN 1999, as amended, the exercise of legislative powers by the National Assembly or by a State House of Assembly, shall be subject to the jurisdiction of the Court. It states thus:
“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a Court of law or of a judicial Tribunal established by law.”
See also:
A-G Ondo v. A-G Federation (2002) 9 NWLR (Pt.772) 222;
AG Bendel v. AG Federation (1983) 1 SCNLR 239;
A-G Abia v. AG Federation (2006) 16 NWLR (Pt. 1005) 265 at 382 – 383 paras E – H and 385 (paras C – D).
In the instant appeal, the Anambra State Public Officers’ Salaries Law No, 7 of 2001, enacted by the Anambra State House of Assembly, which purported to fix the salaries and emoluments of Chairmen and Councillors of Local Governments (amongst others), and charged same upon the Consolidated Revenue Fund of the State, was enacted ultra vires the powers of the Anambra State House of Assembly, and inconsistent with the express provisions of Section 124(4) of the 1999 Constitution, as amended. The said Anambra State Public Officers’ Salaries Law No. 7 of 2001, to the extent of its inconsistency with the Constitution, is null and void, and the trial Court had the requisite jurisdiction to strike down such inconsistent legislation.
The action of the trial Court is undoubtedly justifiable, having regard to the provisions of Section 1(3) the CFRN 1999, as amended, that prohibits the existence of any other law that is inconsistent with a Constitutional provision and declaring that such other law shall be void to the extent of the inconsistency with the Constitution, as well as Section 4(8) of the CFRN 1990, as amended.
In Marwa & Ors v. Nyako & Ors (2012) LPELR 7837 (SC), this Court, in reaffirming the supremacy of the Constitution, stated as follows:
“The supremacy of the Constitution of the Federal Republic of Nigeria 1999 is captioned by Sections one and three, Part 1 of Chapter 1 under general provisions which state that: Section 1 “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Sub-Section 3 “If any other law is inconsistent with the provisions of this Constitution shall prevail and that other law shall to that extent of the inconsistency be void.” This Court had given recognition to this supremacy and had expatiated on the Constitution through various judgments in its interpretative jurisdiction. The Constitution is described as the grundnorm and the fundamental law of the land. All other legislations in this Country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation/state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the State. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. But the extent and implications may be sought to be interpreted and explained by the Court. The provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has power to amend the Constitution itself.”
It is my considered view that this Court has sufficiently demonstrated that the amended 1999 Constitution has expressly donated to the Courts the power to pronounce on the constitutionality of any law made by a Legislature (such as the Anambra State House of Assembly, in the instant case), vis-a-vis the provisions of the said Constitution. Furthermore, I am fortified in my view that where the Constitution itself expressly vests in the Courts the power to pronounce on the constitutionality of a law vis-a-vis its provisions, then the Courts cannot be said to be acting without jurisdiction, in discharging the duty imposed on them.
Against the backdrop of all that has been stated, I hold without hesitation that the trial Court had the jurisdiction to entertain and pronounce on the constitutionality of the Anambra State Public Officers’ Salaries Law No. 7 of 2001. All that the trial Court did in this regard was in the discharge of the power vested in it by the Constitution itself.
The trial Court, and indeed all Courts in Nigeria, being the primary custodians of the Constitution, cannot close their eyes to the desecration of the Constitution by any arm of Government including the Courts themselves. See A. G Abia State v. A.G Federation (supra).
I am therefore in concert with the Court below, when it affirmed the decision of the trial Court, that the Anambra State House of Assembly, went on a frolic its own when it enacted the Anambra State Public Officers’ Salaries Law No. 7 of 2001, and purportedly charged the salaries and remunerations of “Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisor, Special Adviser/PA to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader and Councillors”, to the consolidated Revenue Fund of the State, notwithstanding that it was at variance with the express provisions of Section 124(4) of the Constitution of the Federal Republic of Nigeria 1999, as amended.
This issue is resolved against the Appellant.
Consequently, having resolved the two issues raised by the Appellant in this appeal against him, I adjudge this appeal to be wholly unmeritorious and it is accordingly dismissed.
The decision of the Court of Appeal, Enugu Division, delivered on the 6th of December, 2013, is hereby affirmed.
I make no order as to costs.
APPEAL DISMISSED.
SC.163/2014
