The Attorney-general of Benue State & Ors V. Hon. Musa Umar & Ors (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

By an election conducted by the Benue State Independent Electoral Commission on the 27th day of March, 2004, the respondents herein were elected as Councillors representing various wards in their respective Local Government Councils of Benue State. They were inaugurated on the 13th and 14th days of April, 2004. Their respective councils were dissolved by the Governor of Benue State (now the 2nd appellant) who swore in caretaker Committees for all the 23 Local Government Legislative Councils of the State.

The respondents took out an originating summons challenging the constitutionality and legality of the action of the 2nd appellant in bringing to an abrupt end their tenure before the expiration of the three years tenure provided by section 13(2) and section 42(1) of the Local Government (Establishment) Law, 2000.

The 1st, 2nd and 3rd appellants herein were the 1st, 2nd and 3rd defendants before the High Court of Benue State (hereinafter referred to as the lower court). They, by the leave of the lower court, filed a joint memorandum of appearance out of time. They also filed a 7-paragraph counter-affidavit in opposition to the originating summons. The respondents filed further and, later, a 2nd and 3rd further affidavits in support of the originating summons. 1st, 2nd and 3rd appellants also filed further counter-affidavit.

By a notice of motion No. MHC/429M/06, the 4th to 26th appellants who were the Chairmen of the caretaker committees of the 23 Local Government Councils appointed by the 2nd appellant prayed the lower court to grant them leave to be joined as co-defendants in the suit. Their prayer was granted on the 13th day of July, 2006. The 67th to 136th respondents were brought into the suit by the leave of the lower court and, thereafter, the respondents were granted leave to amend the originating summons consequent upon a formal application to that effect via motion No. MHV/477M/06. The amended originating summons was filed on the 7th day of August, 2006. The 4th to 26th appellants on the 13th day of July, 2006 filed a notice of preliminary objection praying thus:

“… the plaintiff’s suit No. OHC/26/06 be struck out/dismissed or alternatively that pleadings be ordered and evidence be taken.”

The 4th to 26th appellants also filed counter-affidavit in opposition to the originating summons.

The three sets of parties, the respondent; the 1st to 3rd appellants; and the 4th to 26th appellants filed their respective briefs of argument both in respect of the originating summons and the preliminary objection, which they adopted on the 27th day of September, 2006 without proffering any oral arguments.

The question posed in the amended originating summons for resolution by the lower court reads thus:-

“Whether or not on a calm view and dispassionate interpretation and construction of the provisions of the 1999 Constitution particularly section 7(1) thereof, and Ss. 13(2) and 42(1) of the Local Government Law No. 3 of 2000 as amended by Law No.3 of 2004, the decision of the defendants to dissolve the Local Government Legislative Councils before the tenure provided by Ss. 13(2) and 42(1) of the said Law NO.3 of 2000 as amended is democratic, legal, and in line with S. 7(1) of the 1999 Constitution.”

The respondents then claimed the following reliefs –

(i) A declaration that by virtue of the provisions of Ss. 13(2) and 42(1) of the Local Government Law No.3 of 2000 as amended by Law NO.3 of 2004, the plaintiffs have three years tenure of office as elected Councillors.

(ii) A declaration that the decision of the defendants to dissolve or interfere with the tenure of office of the plaintiffs is contrary to Ss. 13(2) and 42(1) of Law No. 3 of 2000 as amended by Law No.3 of 2004, and therefore undemocratic, illegal, and a gross subversion and breach of S. 7(1) of the 1999 Constitution and Ss.

13(2) and 42(1) of Law No.3 of 2000 as amended.

(iii) A declaration that plaintiffs are still Councillors of their respective Local Government Legislative Councils until April, 2007, when their tenure of office would have expired.

(iv) An order of mandatory injunction directing the defendants either by themselves, privies or agents to restore the plaintiffs to their position as Councillors or their respective Local Government Legislative Councils until their tenure of office expires in 2007.

(v) In the alternative to reliefs i-iv and vi, an order directing the defendants, their agents or servants to pay in bulk to each of the plaintiffs all their salaries, allowances and other benefits including their gratuity/severance allowances and or monetized benefits as codified in the Guideline for Implementing the Law on salaries, allowances and fringe benefits or political and public office holders in Benue State which each and everyone of the plaintiffs as Councillors is entitled to and would have earned for the unexpired tenure of office, but for the illegal dissolution done by the 1st – 3rd defendants.

An order of injunction restraining the defendants, their servants or agents from interfering with the duties, functions, rights and privileges of the plaintiffs as Councillors of their various Local Government Legislative Councils.

The learned trial Judge, Hon. J. S. Ikyegh, J., delivered a considered judgment on the 5th day of December, 2006 wherein it resolved the sole issue presented by the respondents in their favour. He also granted reliefs (i)-(iv) claimed in the amended originating summons. He however, declined to grant relief (v) on the ground that, as an alternative claim, it has become unnecessary to accede to it since the main claim has been granted.

It is against that judgment delivered on the 5th day of December, 2006 that two appeals have been brought to this court; one by the 1st to 3rd appellants; and the other by the 4th to 26th appellants. The two appeals were consolidated by the order of this court on the …. day of 2007. The 1st, 2nd and 3rd appellants filed their notice of appeal on the 1st day of February, 2007 raising 4 grounds of appeal which are reproduced hereunder:-

Ground One

The learned trial court erred in law in entering judgment in favour of the plaintiffs in this case when it had no jurisdiction to entertain the entire suit.

Ground Two

The learned trial Judge erred in law when he ordered as follows:

“May I commence by stating the reliefs claimed to this suit do not affect the Local Government entities of Benue State, as the grouse plaintiffs ventilated therein do not touch the said Local Government Areas, therefore the said Local Government Areas not necessary parties to this suit and their non-joinder would not per se defeat this action … Consequently I respectfully reject the argument of the defendants that this suit is improperly constituted in that regard”.

Ground Three

The learned trial court erred in law when it refused to order pleadings in the suit having regard to conflicting facts as disclosed in the plaintiff’s originating summons and the affidavits evidence filed by the parties to the suit which required oral proof or testimony.

Ground Four

The trial court erred in law when it failed/refused to give its decision on the preliminary objection raised by the 4th – 26th defendants challenging the competence of the originating summons before it.

The reliefs sought are:-

(a) To declare the proceeding and judgment of the Benue State High Court in suit No. OHC/26/2006 delivered on the 5th day of December, 2006 a nullity for want of jurisdiction.

(b) To allow the appeal and set aside the judgment of the trial court in suit No. OHC/26/2006 delivered on the 5th day of December, 2006.

On their own part, the 4th to 26th appellants filed their notice of appeal on the 16th day of February, 2007 containing 7 grounds in the terms hereinafter appearing:-

Ground One

The learned trial Judge erred in law when he held that S. 154(1) of the Local Government (Establishment) (Amendment) Law, 2003 violates S. 7(1) of the 1999 Constitution and had no validity.

Ground Two

The trial court erred in law when it relied heavily on the case of Akpan v. Umah & Ors. (2002) NWLR (Pt.767) 701 in finding for the plaintiffs when the said case is clearly distinguishable from the action before it.

Ground Three

The trial court erred in law when it failed/refused to give its decision on the preliminary objection raised by the 4th – 26th defendants challenging the competence of the originating summons before it.

Ground Four

The trial court erred in law in granting the plaintiffs reliefs i – iv when the Governor of Benue State acted under a law validly passed by the Benue State House of Assembly.

Ground Five

The learned trial court erred in law when it granted the plaintiffs the reliefs sought when the Governor of Benue State acted within the provisions of the Benue State Local Government (Establishment) Law, 2000 as amended and this error oceasioned a miscarriage of justice.

Ground Six

The trial court erred in law when it failed/refused to look at and consider the issues raised in the 4th – 26th defendants’ brief of argument filed before the court on the 20th day of July, 2006 and this occasioned a miscarriage of justice.

Ground Seven

The trial court erred in law in entering judgment in favour of the plaintiffs in this case when it had no jurisdiction to entertain the entire suit.

The relief sought by this set of appellants is:

“An order setting aside the whole decision of the lower court that is to say, the decision of Hon. Justice J. S. Ikyegh dated 5th day of December, 2006.”

Due to the exigency of this appeal, this court abridged the time within which parties were to file their respective briefs of argument and ordered for an accelerated hearing. The 1st, 2nd and 3rd appellants have filed a joint brief of argument and on the receipt of the respondents’ joint brief, a reply brief was also filed. The 4th to 26th appellants also filed a joint appellants’ brief of argument and upon the receipt of the respondents’ brief, they also filed a reply brief. The 1st, 2nd and 3rd appellants distilled three issues for determination from their grounds of appeal, namely:-

“1. Whether the judgment of the Benue State High Court delivered on the 5th day of December, 2006 is a nullity for want of jurisdiction and can be set aside by this Honourable Court.

2. Whether the failure to join the Local Governments who bear the burden of carrying out the judgment/orders of the lower court and were necessary parties to the action did not amount to a breach of the right to fair hearing.
3. Whether in view of the likelihood of the facts in dispute, originating summons procedure was appropriate in this case.”

The 4th to 26th appellants, on the other hand, have identified four (4) issues for determination. viz:-

“1. Whether the High Court of Justice, Makurdi has jurisdiction to hear and determine the action of the plaintiffs/respondents seeking a determination of the question as to whether their term of office as Councilors ceased or became vacant.

2. Whether it did not amount to a breach of the rule of fair hearing and a travesty of justice when the trial High Court ignored the brief of argument filed on behalf of the appellants by their counsel.
3. Whether the trial court was right when he held that S.154(1) of the Local Government (Establishment) (Amendment) Law, 2003 violates S. 7(1) of the 1999 Constitution and had no validity when the plaintiffs did not seek any relief declaring the said section 154(1) unconstitutional and invalid.
4. Whether the actions of the Governor of Benue State in dissolving the Local Government Councils in Benue State and in their place setting up Caretaker Committee is constitutional and valid.”

On their own part, the respondent filed two joint briefs: One in response to 1st, 2nd and 3rd appellants’ brief, the second responded to the brief filed on behalf of the 4th to 26th appellants. In the first brief, the respondents distilled two issues for determination from the four grounds of appeal, namely:-

“1. Whether the claim of the plaintiffs in the trial court was within the jurisdiction of that court and was the proceedings so hostile as to make originating summons inappropriate in the circumstance. (Distilled from grounds 1 and 3 of the notice and grounds of appeal of the 1st – 3rd appellants).

2. Whether the 23 Local Government Councils in Benue State are necessary parties in this case.”

In their second brief, they also distilled two issues for determination from the 7 grounds of appeal, namely:-

“1. Whether the claim of the plaintiffs in the trial court was within the jurisdiction of that court and was the proceedings so hostile as to make originating summons inappropriate in the circumstance. (Distilled from grounds 7 and 3 of the notice and grounds of appeal of the 4th – 26th appellants).

2. Whether the Benue State Local Government (Establishment) Law, 2000, as amended, which empowers the Benue State Governor to set up transition committees for the 23 Local Governments of the State is not inconsistent with the provisions of the 1999 Constitution and is it correct to say that the appellants were denied fair hearing by the learned trial Judge.

(Distilled from grounds 1, 2, 4, 5 and 6 of the notice and grounds of appeal of the 4th – 26th appellants).

On the 12th day of March, 2007, learned counsel for the three sets of parties adopted their respective briefs of argument. M. K. Aondoakaa, Esq., SAN, for the 1st, 2nd and 3rd appellants proffered oral submission in order to emphasize certain aspects of his brief.

Learned counsel for the two sets of appellants urged that the appeal be allowed, while learned counsel for the respondents prayed that the appeal be dismissed.

Issue No. 1 of the 1st, 2nd and 3rd appellants’ brief can be taken together with issue No.1 of the 4th to 26th appellants’ brief and issue No. 1 of the respondents’ briefs. The complaint here is that by virtue of the provisions of section 70(1)(b) of the Benue State Local Government Electoral Law, 2002, it is the Election Tribunal and not the High Court of Benue State that has jurisdiction to hear and determine this action. The argument of the 1st to 3rd and the 4th to 26th appellants is hinged on their contention that the issue for determination before the lower court was whether the term of office of the respondents has ceased or became vacant. Section 70(1) of the Benue State Local Government Electoral Law, 2002 (now called Electoral Law) provides as follows:-

‘There shall be established for the State, one or more Election Tribunals to be known as Local Government Election Tribunals (in this Law referred to individually as an Election Tribunal) which shall to the exclusion of any other Tribunal or court have original jurisdiction to hear and determine:-

(a) Election petitions as to whether a person has been validly elected as a Chairman or Councillor

of a Local Government Council;

(b) Any question as to whether the term of office of any person as Chairman or Councilor of a Local Government Council has ceased or become vacant;

(c) A question as to whether an election petition is proper or improper before the Election Tribunal.”

The appellants argue that by subsection (1)(b) of section 70 of the Electoral Law, it is the Election Tribunal that is vested with exclusive original jurisdiction to hear and determine the question whether the term of office of the respondents has ceased or become vacant. They submit that the lower court has no jurisdiction and to that effect, its judgment of the 5th day of December, 2006 is a nullity. To buttress their submissions in this respect, they quote from the judgment of the learned trial Judge at page 427 of the record in the following terms:-

‘The major question to determine here is whether 2nd defendants (sic) was right in terminating the said terms of office of the plaintiffs,”

They submitted that the issue of jurisdiction can be raised at any stage of proceedings, even for the first time on appeal, citing Ramadan (Nig,) Ltd. v. Afribank Plc (2005) All FWLR (Pt. 992) 652, 663, It is further argued for the appellants that for a court to have jurisdiction in any matter, the subject matter of the case must be within its jurisdiction, The learned senior counsel for the 1st to 3rd appellants and learned counsel for the 4th to 26th appellants highlighted the consequence awaiting a proceeding conducted without jurisdiction, They relied on Military Administrator, Benue State v. Abayilo (2001) 5 NWLR (Pt. 705) 19: (2001) FWLR (Pt.45) 602. 614-615: Kwada v. Zira (2002) FWLR (Pt. 112) 113. 124-125: Enemuo v. Dim (2002) FWLR (Pt. 162) 1004. 1022: Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. 522: Okoye v. Nigerian Construction (1991) 6 NWLR (Pt. 199) 501; (1991) 7 SCNJ (Pt. 11) 365, 381-382; A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 575: (2002) FWLR (Pt. 112) 176, 209. A.N.P.P. v. Benue State Independent Electoral Commission (2006) 11 NWLR (Pt. 992) 585.

623,

In response, it is submitted for the respondents that a careful look at the judgment of the lower court will show that the issue of jurisdiction based on section 70(1) of the Electoral Law is being taken out of context because all the parties before the lower court agreed that the respondents have three years terms to serve in office.

The effect of this argument is that there is no dispute as to tenure. To illustrate this argument, reference is made to different averments made by all the parties in their various affidavits before the lower court. It is then submitted that section 70(1) of the Electoral Law will come into play only if there is dispute as to whether tenure of office of the respondent has ceased or become vacant. That was not the issue in dispute at the lower court. The real issue before that court was as to whether the action of the 2nd appellant in dissolving the councils, when the tenure of the respondents has not yet expired, was legal or constitutional. It is submitted for the respondents that section 70(1) of the Electoral Law, must be read together with section 19 of the Benue State Local Government (Establishment) Law, 2000, as amended. The respondents submit that the contention that the Benue State House of Assembly validly enacted the Electoral Law of 2002 and that the Tribunal, referred to in section 70(1) of the said Law, was validly set up or created, are moot issues, since such issues did not arise from their claim before the lower court, nor were they raised by the appellants at the court below. It is submitted that what the respondents took before the lower court was within its jurisdiction vide section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999. Respondents rely on ANPP (supra) at page 622.

The two sets of appellants each filed reply brief of argument.

With all respect, a reply brief should be limited to a reply on point of law. It is most unacceptable to hide under the guise of a reply brief to re-argue the appeal and have a second bite at the cherry No effort is made, apart from casual attack on the submission that section 70(1) of the Electoral Law should be read together with section 19 of the Benue State Local Government (Establishment) Law, 2002, as amended, to show whether the authorities cited by the respondents are applicable. Instead of this, the appellants are busy making fresh submissions and citing new authorities. I wonder when and where they expect the respondents to respond, or give reply, to those submissions and authorities. It is akin to addresses of counsel at the close of the evidence for the parties before a high court. The party that addresses first has the final right of reply “ON POINT OF LAW”.

No more, no less, and a party shall not be allowed to have a second bite at the cherry. The rules governing brief writing do not differ in that respect.

Now, the issue of jurisdiction is very fundamental in adjudication. Indeed, it is central to adjudication. A proceeding no matter how well conducted, if without jurisdiction, is a nullity ab initio. That explains why whenever it is raised in a proceeding, the court seised of the case has to determine it first before proceeding to the actual trial of the case on the merits.

A court of law is said to be competent to entertain and determine a matter placed before it if:

(a) it is properly constituted as regards its members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) the subject mailer of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and

(c) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Where all the three conditions listed above for the exercise of jurisdiction co-exist, a court is said to have competence and jurisdiction. Any defect in competence is fatal, for the proceedings will be a nullity, however well conducted and decided, the defect being extrinsic to the adjudication. See Arewa Paper Converters Ltd. v. N.D.I.C. (Nig.) Universal Bank Ltd. (2006) 15 NWLR (Pt.1002) 404, 432, where the Supreme Court followed its decisions in Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 (Pt. 30) 617 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341

.

The issue of jurisdiction can be raised at any stage of litigation, even for the first time on appeal, as has been done in the instant case, relying on section 70(1) of the Electoral Law, 2002. It requires no leave to raise the issue of jurisdiction for the first time on appeal since it can be raised by the court suo motu in order to a void an exercise in futility. That is why no objection was taken when the issue of jurisdiction was raised for the first time in this case.

In this case, the appellants have heavily relied on what they term as “Specific findings” by the learned trial Judge when he held that –

“The major question to determine here is whether 2nd defendants (sic) was right in determining the said tenure of office of the plaintiffs. Before the said question is answered it would, in my considered opinion, be profitable to find out that tenure of office of the plaintiffs.”

It is this finding the appellants rely on to say that the lower court lacked jurisdiction to hear and determine the case since the issue is whether the term/tenure of office of the respondents has ceased or became vacant. Their authority for this is section 70(1)(b) of the Electoral Law which I have quoted earlier in this judgment. I do not see, by any stretch of imagination, how the finding of the learned trial Judge as quoted heretofore could be interpreted to mean that the court below was investigating whether the term of office of the respondents has ceased or become vacant as strenuously argued by the appellants. This issue becomes clearer when one looks at the question posed by the respondents for the determination by the lower court. It runs thus:-

“QUESTIONS FOR DETERMINATION

Whether or not on a calm view and dispassionate interpretation and construction of the provision of the 1999 Constitution, particularly section 7(1) thereof, and Ss. 13(2) and 42(1) of the Local Government Law No. 3 of 2000 as amended by law No.3 of 2004, the decision of the defendants to dissolve the Local Government Legislative Councils before the tenure provided by Ss.13(2) and 42(1) of the said Law No.3 of 2000 as amended is democratic, legal, and in line with S. 7(1) of the 1999 Constitution.”

A careful look at the question posed by the respondents will reveal that it is in harmony with the finding by the learned trial Judge.

What was before that court for determination was the legality or constitutionality or otherwise of the action of the 2nd appellant in dissolving the Local Government Legislative Councils during the currency of the tenure of the respondents. That does not make tenure the issue for determination by the lower court so as to rob it of the requisite jurisdiction to adjudicate in the case. I agree with learned counsel for the respondents that the issue of jurisdiction is being raised out of context.

All the authorities cited by the two learned counsel for the appellants support their respective submissions and are quite apposite to the principles of law adumbrated by them. But since the issue of jurisdiction was raised by them out of context, the authorities cited by them are inapplicable to this case. The provisions of section 70(1)(b) on which learned counsel anchored their respective submissions needs some scrutiny in order to appreciate its import.

The appellants restrict their interpretation of section 70(1) of this law to section 70(1)(b) and they interpret it in isolation. This is wrong.

The canon of interpretation requires that an enactment or document should be interpreted as a whole and no part of it should be construed in isolation as such construction can lead to absurdity. If the whole of section 70(1)(a)(b) and (c) is construed together, it becomes clear that the jurisdiction of an Election Tribunal, as provided under this section, is the determination of election petitions and related matters such as to whether the term of office of any person as chairman or councillor of a Local Government Council has ceased or become vacant; and whether an election petition is proper or improper before the Tribunal.

There is no doubt that the principal jurisdiction of an Election Tribunal envisaged under section 70(1) of the Electoral Law is essentially restricted to the handling of election petitions and I so hold. See A.N.P.P. v.Benue State Independent Electoral Commission (2006) 11NWLR (Pt. 992) 585, 622.

This brings me to the issue as to what determines the jurisdiction of a court in a given case. It is trite that to determine whether a court has jurisdiction in a case, only the originating process and the supporting processes need to be looked at. Originating process will include writ of summons, originating summons, petition, etc. and supporting processes such as statement of claim, supporting affidavit and the like. The court will not concern itself with opposing processes such as statement of defence, counter-affidavit, etc. The same approach is applicable where the issue is as to whether a cause of action is disclosed or whether the plaintiff has locus standi. Adeyemi v. Opetori (1976) 9-10 SC 31, 49.

In the instant case, the respondents’ case is as stated heretofore and as found by the learned trial Judge. Their case was that the 2nd appellant’s action in dissolving their respective Legislative Council was undemocratic, illegal, and unconstitutional, especially when their tenure of office had not expired. I find it very strange how this could be construed to signify a dispute as to tenure or as to whether the tenure of office of the respondents has expired/ceased or whether the office of any of them has become vacant. It is amazing how human mind is capable of withdrawing itself into a midsummer night’s dream in broad daylight. The learned trial Judge had found at page 414 of the record of appeal that the facts are straightforward and indisputable, I entirely agree with him that the facts are not in dispute, The fact that should have been in dispute to engender the issue of jurisdiction being fiercely contended before this court is that of the tenure of the respondents, But, alas, parties were at ad idem that the respondents’ three years tenure is to expire at the or towards the end of March, 2007, This was admirably demonstrated by learned counsel for the respondents when he quoted from the further counter-affidavit of the 1st, 2nd and 3rd appellants herein, paragraph 4(e) whereof states as follows:-

“That the three years tenure of office of councilors elected into Benue State Local Government Legislative Councils on the same date with the Chairmen of the Council comes to an end on 26th March, 2007,”

See page 136 of the record.

In paragraph 5(e) of the counter-affidavit of one Gloria Ejeimbi deposed to with the consent of the 4th to 26th appellants, it was averred thus:

“That Councillors elected on the same date and during the same Local Government election held on 17th day of March, 2004 was expected to expire on the 26th day of March, 2007,”

See page 181 of the record, Paragraph 16 of the affidavit of Hon. Tartule Tijah, being a part of exhibit B to the respondents’ 3rd further affidavit states as follows on behalf of the 4th to 16th appellants:-

‘That the tenure of Councillors in Benue State is a period of 3 years”.

See page 135 of the record.

From the foregoing, I entertain no doubt that the learned trial Judge was absolutely right when he held as follows:-

“The issues and facts in the present suit, as I see them, are straightforward, indisputable, and of common ground between the parties, because the capstone of the suit is whether by the relevant constitutional provision and the Local Government Law of Benue State earlier referred to on the suit, the defendants and in particular the 2nd defendant properly put an end to the tenured appointment of the plaintiffs,”

I hold that there is no dispute as to the tenure of office of the respondents, I also hold that the issue of tenure was not contested before the lower court. Since the issue of jurisdiction as canvassed in this appeal has been raised without foundation, I hold that section 70(1) hammered upon by the appellants is inapplicable. I, therefore, resolve this issue in favour of the respondents. For avoidance of doubt, I hold that the Benue State High Court had jurisdiction to hear and determine this suit and its judgment of the 5th day of December, 2006 is not a nullity.

The next issue to determine is issue No.3 of the 1st, 2nd and 3rd appellants. It run thus:-

“Whether in view of the likelihood of facts in dispute, originating summons procedure was appropriate in this case”.

The 1st, 2nd and 3rd appellants did not proffer any serious argument in support of this issue other than that originating summons is not an appropriate procedure for this suit. It is submitted that since the processes filed by the parties are in conflict, pleadings should have been ordered. Learned senior counsel for the appellants cited Ogunsola v. A.P.P. (2004) All FWLR (Pt. 207) 722, 746; (2003) 9 NWLR (Pt. 826) 462.

With respect, I see no conflict as submitted by learned senior counsel and he has not highlighted any. This issue was distilled from ground four of the 1st, 2nd and 3rd appellants’ notice of appeal which reads as follows:-

‘The trial court erred in law when it failed/refused to give its decision on the preliminary objection raised by 4th – 26th defendants challenging the competence of the originating summons before it.”

In Chief Ugbor Ofia & Ors. v. Chief Isaah Mba Ejem (2006) 11 NWLR (Pt. 992) 652, the Supreme Court held at page 663 that-

Where an action is not competent or properly constituted, it robs the court of the jurisdiction to entertain same.”

It is not true that the lower court failed/refused to give decision on this preliminary objection. At page 424, the learned trial Judge held as follows:-

”The parties being at one on the facts that gave rise to this suit and the legal issues put forward for

consideration in the suit having been based on the interpretation of the relevant constitutional provision and the Benue State Local Government Law vis-a-vis the undisputed facts as stated in the application for the suit, I do not, with deference to the defendants, accept this contention that the present action cannot be maintained under the originating summons procedure, and I hereby overrule their said preliminary objection.”

The learned trial Judge had said it all. It is little wonder then that the 4th to 26th appellants, who raised the preliminary objection before that court, have not appealed, presumably after having been satisfied with the decision on same. There is no dispute as to facts in this suit and the proceeding was not hostile to take it outside the originating summons procedure. I hold that the procedure adopted was appropriate.

This brings me to issue No.2 of the 1st, 2nd and 3rd appellants’ brief of argument. It is couched in the following terms:-

“Whether the failure to join the Local Governments who bear the burden of carrying (out the judgment/orders of the lower court and were necessary parties to the action did not amount to a breach of the right to fair heating.”

The argument in support of this issue can be summarized as follows:-

That the declaration and reliefs sought and granted directly affected the Local Governments, that where determination of an action directly affects legal rights, interest and duty of the Local Governments, they ought to have been joined so that all matters in dispute could be effectually and completely determined and adjudicated upon: that non-joinder amounted to a breach of the rights of the Local Governments to fair hearing as guaranteed under section 36(1) of the 1999 Constitution; that law is settled that a judgment of order made against a person who was not a party to the suit should not be allowed to stand; that attention of the learned trial Judge was drawn to the issue of non-joinder of the Local Governments but he erroneously misconstrued the juristic entity of a Local Governments with geographical reference called Local Government Areas and held that Local Governments are not necessary parties: that Local Governments are legal or corporate entities that can sue and be sued in their names, apart from the Local Government Councils; and that the lower court was in error in rejecting the objection premised on non-joinder of the Local Government. For these submissions, learned senior counsel for the 1st, 2nd and 3rd appellant relied on Green v. Green (1987) 3 NWLR (Pt. 61) 60; (2001) FWLR (Pt. 76) 795, 818, section 4(1) and (2) of the Benue State Local Government (Establishment) Law, 2000 (as amended); and First Schedule. Part 1 of the 1999 Constitution of the Federal Republic of Nigeria.

In response, the respondents submitted as follows:-

That failure to join the Local Governments was not fatal to their case; that the respondents have no complaints against the 23 Local Governments; that the law that was being interpreted was not made by the Local Government; that the Local Governments did not terminate the tenure of their offices; that no specific allegation was made against the Local Governments in the originating summons; that the Caretaker Chairman of the 23 Local Governments are already parties in the case; that the appellants who pay the salaries and allowances of the respondents are already parties in the case; that it is on record that the Benue State Ministry or Local Government and Chieftaincy Affairs, which is an aim of the 3rd appellant, pays salaries and allowances of Local Government staff including the respondents; that the appellants have not demonstrated how the failure to join the Local Governments as parties has affected the effectual and complete determination of the action: that no application has been made by 4th to 26th appellants to have their Local Governments joined as parties. Learned counsel for the respondents cited Ige v. Farinde (1994) 7 NWLR (Pt. 354) 42: (1994) 7-8 SCNJ (Pt. 2) 284. 301 – 302; sections 43, 44, 45 and 46 of the Local Government (Establishment) Law, 2000 (as amended); sections 2 and 3 of the First and Second Schedule to the 13enue State Political and Public Office Holders (Remuneration) Law, 2000, in support of his submissions.

I must state that it is trite that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose of enabling the court effectually and completely adjudicate upon and settle all questions in the case. The aim is, to put an end to litigation and not to have two parallel proceedings in which the self-same issue was raised, leading to different and inconsistent results. The court has no jurisdiction to join a person whose presence is not for that purpose. See Ige v. Farinde (1994) 7 NWLR (Pt. 354) 42, 63 66,68 – 70; (1994) 7 SCNJ 284, 300. Supreme Court further held in that case that:-

“One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question in the action which cannot be effectually and completely settled unless he is a party.” See page 300 (SCNJ).

The 1st, 2nd and 3rd appellants have correctly stated the principles of the law on the subject of joinder or non-joinder of parties, especially, the authority in Green v. Green (supra), but learned senior counsel has, with respect, failed woefully to show what cause of action there was against the Local Governments or how their right to fair hearing has been affected by the failure to join them in the action. A pat1y against whom there is no cause of action cannot be made a defendant. See Ladoke v. Olobayo (1994) 8 NWLR (Pt.365) 734, 744. See also the dicta of Obaseki and Karibi-Whyte. JJSC, in Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369. 394.

On this issue, the learned trial Judge has this to say:-

“May I commence by stating that the reliefs claimed in this suit do not affect the Local Government entities of Benue State, as the grouse the plaintiffs ventilated therein do not touch the Local Government Areas, therefore the Local Government Areas are not necessary parties to this suit and their non-joinder would not per se defeat this action. At any rate, the presence of the 4th to 26th defendants in the suit covers the said Local Government Areas under Sections 43 to 46 of the Local Government (Establishment) Law. 2000 cited by Mr. Okutepa for the plaintiffs consequently I respectfully reject the argument of the defendants that this suit is improperly constituted in that regard.” See page 426 of the record.

The executive powers of the 23 Local Governments of the Benue State are currently being exercised by the 4th to 26th appellants, hence the allusion to sections 43, 44, 45 and 46 of the Benue State Local Government (Establishment) Law, 2000, as amended. If these appellants are exercising the executive powers of the Local Government and they are already parties in the case, I do not see how the respondents could be forced to do a case with the parties against whom they have no complaint. No formal application was made by the 1st, 2nd and 3rd appellants, or the 4th to 26th appellants, to have the Local Governments joined as parties in the lower court. The courts have always been reluctant to allow the joinder in the cases where joinder is sought by the defendant against the wishes of the plaintiff and without the counsel of the person sought to be joined that is where the joinder is not being sought by an intervener or by the plaintiff in the action. A joinder will be refused when the court is satisfied that the case could be effectually and completely determined without the joinder, although in a proper case, the court can join a 3rd party as co-defendant even against the wish of a plaintiff. See Lajumoke v. Mrs. Doherty (1969) 1 NMLR 281.

The Constitution of the Federal Republic of Nigeria, 1999 makes provisions for fundamental right to be heard. It is also a principle of natural justice as we know it. The principle of fair hearing is fundamental to all court procedure and proceedings. Like jurisdiction, the absence of it vitiates proceedings, however well conducted. It was held by the Supreme Court in Newswatch Communications Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 that-

“fair hearing is fair hearing when and if it is fair to both parties. This is because the constitutional principle of fair hearing is for both parties in the litigation. In other words, fair hearing is not a one-way traffic but a two-way traffic, in the sense that it must satisfy a double carriage way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. To do this will amount to injustice”. See pages 159 and 170 – 171. Also-

“fair hearing envisages that the court or tribunal hearing the parties case should be fair and impartial without it showing any degree of bias against any of the parties.

In the instant case, although the appellant complained of denial of fair hearing, it did not accuse the trial court of bias. This is because the trial court, which was fair to parties, or gave them equal opportunities without any let hindrance from the beginning of the trial to the end of it to present their respective case and defence.” See page 182.

Coming to the instant case, there is no complaint that the lower court was bias because it gave all the parties before it equal opportunities to present their respective cases. The complaint here is that the right of fair hearing of some persons, who are not parties in the case, has been violated. Those persons are not the complainants here but some parties to the proceedings who feel strongly, albeit erroneously, that non-joinder of those persons makes the action to be improperly constituted. This is not a proper case where the constitutional provision for fair hearing can be invoked.

On the whole, all the three issues formulated by the 1st, 2nd and 3rd appellants have been resolved in favour of the respondents.

I find the appeal by the 1st, 2nd and 3rd appellants to be unmeritorious and the same is accordingly hereby dismissed in its entirety.

Issue No.2 submitted by the 4th to 26th appellants is:-

“Whether it did not amount to a breach of the rule of fair hearing and a travesty of justice when the trial High Court ignored the brief of argument filed on behalf of the appellants by their counsel.”

I will consider this issue along with issue No.3 which reads thus:-

“Whether the trial court was right when he held that S.154(1) of the Local Government (Establishment) (Amended) Law, 2003 violates S. 7(1) of the 1999 Constitution and had no validity when the plaintiffs did not seek any relief declaring the said section 154(1) unconstitutional and invalid.”

I reproduce, hereunder, the appellant’s brief of argument in support of the preliminary objection to originating summons:-

“LEGAL ARGUMENT

Issue No. 1

Whether or not the originating summons can be determined without the Honourable Court being invited to look at section 154(1) of the Local Government Law, 2000 (Amendment) 2003 read together with section 154(5) of the Local Government (Amendment) Law, 2006 under which the Government acted in dissolving Local Government Councils in Benue State.

It is most respectfully submitted that the plaintiffs have failed to state or seek interpretation of the Section of the Law or Law that the Governor used in dissolving Councils in Benue State. They have not exhibited the authority the Governor used. However, it is section 154(1) of the Local Government Law, 2000 (Amendment) 2003 read together: with section 154(5) of the Local Government (Amendment) Law, 2006 that gives the Governor the power to set up Transition Committees in Benue State. The Governor acted under the said action of the Law. The plaintiffs have not questioned the constitutionality of that section. The plaintiffs have also not questioned the fact that grounds exist to warrant the application of the said section of the Law, which the Governor used to dissolve the plaintiffs and set up Transitional Committees.

The question that arises is, can the Honourable Court declare the action of the Governor unconstitutional and illegal without looking at or being invited to look at the section of the law under which he acted”

Furthermore, can the Honourable Court declare the action of the Governor unconstitutional and illegal without determining the constitutionality of the section of the law under which he acted’)

The answers to the above questions it is submitted is in the negative. Thus the question for determination as formulated by the plaintiffs it is submitted is fundamentally defective and should not be entertained by the Honourable Court.

Issue No.2

Whether or not the plaintiffs can maintain this action by way of originating summons.

The plaintiffs are also seeking an order of this Court for the payment of salaries, allowances and other benefits allegedly accruing to them. There is nothing in this application in support of this prayer. It is our submission that this is a liquidated claim and must be specifically pleaded and proved. It is not a matter for an interpretation of any law.

The claim/prayer cannot, therefore be brought and/or maintained by way of originating summons. It should accordingly be discountenanced. See Madu v. Neboh (2001) FWLR (Pt. 52) 2247 at 2273.”

I have taken a look at these two undated briefs of argument by the 4th to 26th appellants and discovered that the decision of the learned trial Judge constitutes a frontal answer to all the issues raised in the briefs. He specifically mentioned or referred to the submissions of learned counsel for the 4th to 26th appellants at pages 425 to 426 of the record. Reference was made to the submissions in the same manner reference was made to the submissions of learned counsel for the 1st, 2nd and 3rd appellants and the respondents respectively.

It has, however, not been pinpointed how failure to refer to the submissions verbatim and serially has occasioned a miscarriage of justice. The issue of fair hearing has become a trump-card to be used on appeal once there is an adverse decision. I do not see how the fair hearing has come into play in this case.

As to the finding by the learned trial Judge that section 154(1) of the Benue State Local Government (Establishment) Law violates the provisions of the Constitution, this is a complete answer to both the preliminary objections to the originating summons as amplified in the suppol1ing brief of argument and the argument in the brief of argument against the originating summons itself.

I do not know exactly what the learned trial Judge was expected to do. If he did not consider the efficacy of section 154(1) of the Local Government Law vis-a-vis the provisions of the Constitution in his determination of the question whether the 2nd appellant’s action in dissolving the Legislative Councils of the Local Governments before the expiration of the tenure of the respondents, he will be challenged for failure to consider same. Now he has given his opinion, he is being questioned as to why he gave it a consideration and as to why he should make a finding on it. It will be strange if the learned trial Judge had acted otherwise than he did. There is no way he would consider the constitutionality of the action of the 2nd appellant in this situation without considering the instrument from which he purported to have acted. I hold that the lower court was right when it held that section 154( 1) of the Local Government (Establishment) (amended) Law, 2003 violates section 7(1) of the 1999 Constitution, and has no validity even though the respondents did not specifically asked for it. It is noted that that is the main thrust of the current appellants’ argument in their brief of argument.

Issue No.4 of the 4th to 26th appellants’ brief of argument demands to know whether the action of the 2nd appellant in dissolving the Local Government Councils in Benue State and in their place setting up Caretaker Committee is constitutional and valid.

In arguing this issue, learned counsel for the 4th to 26th appellants submitted that by virtue of section 4(7) of the 1999 Constitution, the Benue State House of Assembly has power to make laws for peace, order, and good governance of the State or any part thereof, hence the making of Local Government (Establishment) Law, 2000 and section 154 of the amendment to the law in 2003. He submitted further that by the provisions of section 154(1), the 2nd appellant has the tight to appoint a Transitional Committee upon the expiration of the tenure of a serving council, where an emergency or any other situation arises which makes it impossible the holding of local government elections within the period stipulated under the Law. It is his submission that Local Government Council includes both the Executive Council and Legislative Council of a local government. He further argued that there is conflict between the provisions of sections 12(2) and 42(1) of the Local Government Law. 2000 read together with section 26(3) of the Local Government (Amendment) Law No.2, 2004 on the one hand and section 154(5) of the Local Government (Amendment) Law, 2006. He submitted that the Local Government (Establishment) Law derives its legitimacy from section 7 of the 1999 Constitution and there is nothing unconstitutional about the 2nd appellant’s action. In support

of all his submission, learned counsel cited Fatunsi v. Olanloye (2004) 12 NWLR (Pt. 887) 229: Baba-Iya v. Sikeli (2006) 3 NWLR (Pt. 968) 508; Dyktrade Ltd. v. Omnia (Nig.) Ltd (2000) 12 NWLR (Pt. 680) 1; (2003) 3 NSCQR 153, 160; Eze Lambert Okoye Akamexiri v. Chief PDP Okenwa & Ors. (2000) 15 NWLR (Pt.91) 526; (2000) 4 NSCQR 278, 304; and Oguebie v. Odunwoke (1979) 3 – 4 SC 58, 75-76.

Now, section 13(2) of the Local Government (Establishment) Law, 2000 (as amended) provides as follows:-

“The Local Government Legislative Council shall stand dissolved at the expiration of the period of 3 years commencing from the date of inauguration of the Local Government Legislative Council.”

Section 42(1) of the same Law also provides that:-

“The Legislative Council shall stand dissolved at the expiration of a period of three year, commencing from the date when the Councilors take and subscribe to their oath of membership.”

From the provisions of both section 13(2) and section 42(1) of the Local Government (Establishment) Law. 2000 (as amended) the tenure of office of respondents herein is three years, commencing from the 13th/14th day of April, 2004 when they were all inaugurated as members of their respective Legislative Councils. The law has witnessed series of amendments in 2001, 2002, 2003 and 2004 but none of these amendments affected the term of office of the respondents. It was the amendment of section 26(3) of 2004 that affected the Chairmen of the Local Government Councils. It reduced from three years to two years the tenure of office of the Chairmen.

The amendment according to section 1 thereof was to come into force on the 26th day of March, 2004. That was a day before the local government election of the 27th day of March, 2004 from which the respondents were returned as elected Councilors of their respective Local Governments was conducted. The amendment Law was, however, not assented to by the Benue State Governor until the 26th day of November, 2004.

By section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999, the system of local government by democratically elected Local Government Councils is guaranteed, and the Government of every State is obliged to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.

Drawing from this constitutional provision. Section 3(1) of the Local Government (Establishment) Law, 2000 (as amended) provides thus:-

“The system of Local Government in the State shall be by democratically elected councils.”

It is instructive to note that this sub-section is not subject to any other provisions of the law, Indeed, it could not have been, having derived its source from the Constitution which is the grundnorm.

The 2nd appellant is said to have derived his power to dissolve the Councils and appoint Caretaker Committees in their place from section 154(1) of the Local Government (Establishment) Law, 2000 (as amended). Section 154(1) of the Local Government (Establishment) Law. 2000 (as amended) provides:-

“Where an emergency or any other situation arises which makes it impossible the holding of Local Government Election within the period stipulated under the Law, the Governor shall, upon expiration of the tenure of the serving council, appoint for each Local Government Transitional Committee of not more than seven persons, one of whom shall be the Chairman, from the Local Government Area.”

It will be noticed from the Legislative pattern in respect of the Local Government (Establishment) Law, 2000, that section 154(1) of the principal law has been systematically amended so to arrive at what we now have. The amendment of 2002 deleted the original section 154 and added a new section 154 with four subsections. The amendment of 2004 fine-tuned the section by addition of a fifth subsection. All this rape on democracy has escaped the public glare until it was brought to fore by its implementation culminating in the actions of the 2nd appellant giving rise to this suit.

This section, i.e. section 154(1), especially, is in conflict with section 3(1) of the same Law which has escaped the amendment pen of the Benue State Legislature. Since I have stated elsewhere in this judgment that section 3(1) of the Local Government Law derived from section 7(1) of the Constitution, it follows that section 154(1) is also in conflict with section 7(1) of the Constitution. and by virtue of the provisions of section 1(3) of the Constitution read together with section 7( 1) thereof, section 154(1) is void to the extent of its inconsistency.

It follows from this that the action of the 2nd appellant based on section 154(1) of the Benue State Local Government (Establishment) Law, 2000 (as amended) is also void, illegal and unconstitutional. This is the import of the ratio in Akpan v. Umah (2002) 7 NWLR (Pt. 767) 701; (2002) FWLR (Pt. 110) 1820 at 1840 – 1841 where it was held that:-

“The dissolution of Ini Local Government Council and setting up of the Caretaker Committee by the 2nd respondent (the Governor of Akwa Ibom 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 v. A.-G., 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.”

All the four issues identified by the 4th – 26th appellants in their joint brief of argument have been resolved in favour of the respondents. The appeal of the 4th to 26th appellants also fails as the same is found wanting in merit. It is accordingly hereby dismissed in its entirety.

In sum, the two appeals are hereby dismissed. The decision of the Benue State High Court of Justice in suit No. OHC/26/2006 contained in the judgment of Hon. Justice J. S. Ikyegh delivered on the 5th day of December, 2006 is hereby affirmed.

Cost assessed at N10,000.00 is hereby awarded against each set of the two appellants in favour of the respondents.

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Other Citations: (2007)LCN/2282(CA)