The Attorney-general Of Plateau State & Ors V. Hon. Chief Anthony Goyol & Ors (2007)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The plaintiffs now respondents took out an originating summons seeking a determination of the following questions: –

1. Whether the plaintiffs’ tenure of office is determinable under the Plateau State Local Government Law No. 1 of 1999 under which they were elected and sworn in or determinable under a succeeding version of the Local Government Law of Plateau State.
2. Whether being elected and sworn in under the Plateau State Local Government Law No. 1 of 1999, the three-year term of office of the plaintiffs Local Government Chairmen became extinguished under the Plateau State Local Government Council Law 2007 signed into law on 12th January, 2007 by the 2nd defendant.
3. Whether the tenure of office of the plaintiffs elected Local Government Chairmen inaugurated on 20th April, 2004, under the Plateau State Local Government Law No. 1 of 1999 has lapsed.
4. Whether in view of answers to question Nos. 1, 2, and 3 above, the act of the 2nd defendant in unilaterally terminating the plaintiffs’ term of office on 12th January, 2007 is not undemocratic, unconstitutional, unlawful, illegal, null and void.
5. Whether in view of answers to question Nos. 1, 2 and 3 above, the 2nd defendant can lawfully appoint Sole Administrators or interim or transitional administrations to replace the plaintiffs in respect of Plateau State Local Government Chairmanship seats before the expiration of the plaintiffs three-year term of office.
6. Whether in view of the answers to question Nos. 1, 2 and 3 above, the 2nd defendant can lawfully confirm the appointment of Sole Administrators or interim or transitional administrations to replace the plaintiffs in respect of Local Government chairmanship seats of Plateau State before the expiration of their three-year term of office.
7. Whether in view of answers to question Nos. 1, 2 and 3 above the 4th defendant can lawfully conduct fresh elections into the Local Government Chairmanship seats occupied by the plaintiff’s with a view to replacing the Plaintiffs before the expiration of their term of office.
8. Whether in view of answers to question Nos. 2 and 3 above, it would be lawful for the 1st, 2nd, 3rd and 4th defendants to do anything or continue with any act or make any pronouncement or take any step or otherwise act in any manner that will terminate or have the effect of terminating the plaintiffs’ three-year term of office before the expiration.

And the Plaintiffs seek the following reliefs; –

1. A declaration that the plaintiffs’ tenure of office IS ONLY determinable under the Plateau State Local Government Law No.1 of 1999 under which they were elected and sworn in AND NOT under a succeeding version of the Local Government Law of Plateau State.
2. A declaration that being elected and sworn in under the Plateau State Local Government Law No.1 of 1999 the three-year term of office of the plaintiffs Local Government Chairmen HAS NOT become extinguished under the Plateau State Local Government Council Law 2007 signed into law on 12th January, 2007 by the 2nd defendant.
3. A declaration that the tenure of office of the plaintiffs elected Local Government Chairmen inaugurated on 20th April, 2004 under the Plateau State Local Government Law No. 1 of 1999 HAS NOT otherwise expired.
4. A declaration that the act of the 2nd defendant in unilaterally terminating the plaintiffs’ term of office on 12th January, 2007 is undemocratic, unconstitutional, unlawful, illegal, null and void.
5. A declaration that the 2nd defendant cannot lawfully appoint Sole Administrators or interim or transitional administrations to replace the plaintiffs in respect of Plateau State Local Government Chairmanship seats before the expiration of the plaintiffs three-year term of office.
6. A declaration that the 3rd defendant cannot lawfully confirm the appointment of Sole Administrators or interim or transitional administrations to replace the plaintiffs in respect of Local Government Chairmanship seats of Plateau State before the expiration of their three-year term of office.
7. A declaration that the 4th defendant cannot lawfully conduct fresh elections into the Local Government Chairmanship seats occupied by the plaintiffs with a view to replacing the plaintiffs before the expiration of their term of office.
8. A declaration that it would be unlawful for the 1st, 2nd, 3rd and 4th defendants to do anything or continue with any act or make any pronouncement or take any step or otherwise act in any manner that will terminate or have the effect of terminating the plaintiffs’ three-year term of office before its expiration.
9. An order reinstating the plaintiffs forthwith to their respective position as Local Government Chairmen in Plateau State.
10. An order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th defendants whether by themselves, their servants, agents and privies, from doing anything or continuing with any act or making any pronouncement or taking any step whatsoever or otherwise acting in any manner that will terminate or have the effect of terminating the plaintiffs’ three-year term of office before its expiration on 19th April, 2007.

The grounds upon which the reliefs’ are sought are as follows:

1. Section 7, Constitution of the Federal Republic of Nigeria provides for a system of a Local Government by democratically elected councils.
2. Having been elected and sworn in under the Plateau State Local Government Law No. 1 of 1999, the plaintiffs’ tenure of office as Local Government Chairmen is only determinable under the provisions of the law.
3. Having been sworn in on 20th April, 2004, the plaintiffs’ three-year tenure of office will expire on 19th April, 2007.
4. The 2nd defendant lacks the power to remove the plaintiffs from office by fiat before the expiration of their three-year term of office.

The summons was supported with a 16 paragraph affidavit which was deposed to by Dr. Hitler F. Dadi, the 13th plaintiff on behalf of himself and the 2nd -16th plaintiffs wherein he averred in paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of the affidavit as follows:-

“8. The plaintiffs were elected Local Government Chairmen in March 2004 under the Plateau State Local Government Law No. 1 of 1999 and inaugurated on 20th April, 2004 for a three-year tenure, which will expire on 19th April, 2007.

9. The 3rd defendant passed a new bill entitled Local Government Council Bill 2007, which was signed into law by the 2nd defendant on 12th January, 2007.
10. On the said 12th January, 2007, the 2nd defendant purporting to act under the new law dissolved the Councils constituted by the 16 plaintiffs whose tenure of office will expire on 19th April, 2007.
11. Under the law upon which the 16 plaintiffs were elected and took their oath of office as Council Chairmen on 20th April, 2004, their tenure of office is three years, which is due to terminate on 19th April, 2007.
12. Notwithstanding the above fact, on 12th January, 2007 the 2nd defendant dissolved the democratically elected Local Government councils under the chairmanship of the plaintiffs and removing the plaintiffs from their elected positions before the expiration of their term of office.
13. I verily believe the 2nd defendant has now perfected plans to reconstitute the Local Councils in Plateau State by conduct of fresh elections into the councils by the 4th defendant, or by simply appointing other persons into the councils to replace the plaintiffs whose tenure of office has not expired.
14. I verily believe the 2nd defendant will soon swear in or cause to be sworn in such newly elected or newly appointed persons into the Plateau State Local Government Councils to replace the plaintiffs before the expiration of their tenure in office.
15. I verily believe the Local Government Councils in Plateau State are not due for reconstitution until 19th April, 2007.”

The memorandum of appearance was filed on behalf of 1st and 2nd defendants on 16th January, 2007 and on 18th January, 2007. One Sati Zakka, the Litigation Secretary in the Chambers of the Hon. Attorney-General Plateau State deposed to a 5 paragraph counter-affidavit and averred in paragraphs 3 and 4 thereof that –

“3. That L.I. Walle of counsel informed me in the chambers of the Attorney-General on 16/1/2007 at about 9:00am and I verily believed him as follows. –

(a) That the applicants were Chairmen of 16 Local Government Councils in the State.

(b) That the 3rd defendant repealed the Local Government Councils Law No.1 of 1999 in 2005 and (sic) its place enacted a new Local Government Council Law 2005. That the Local Government Councils Law 2005 was repealed in 2006 and a new Local Government Councils law 2006 was enacted.

(c) That by the repeal, the 2nd defendant is empowered to dissolve the applicants preparatory to elections.

(d) That the 2nd defendant in the exercise of his powers under the said law dissolved the applicants on the 12th/1/2007.

4. That it will be in the interest of justice to refuse this application.”

This counter-affidavit must have been filed sequel to the ex-parte motion as well as motion on notice which plaintiffs filed along with the originating summons seeking four injunctive reliefs.

The 1st and 2nd defendants later filed an application dated 17th January, 2007 praying for an order discharging paragraph 1 of the ex-parte order dated the 15th January, 2007 on the ground that the court was misled. After filing the memorandum of appearance on behalf of 3rd and 4th defendants on 19/1/2007, Solomon Umoh, of counsel filed a motion on notice seeking to set aside the ex-parte order which the court had made on 15/1/2007 for lack of jurisdiction in the following terms: –

“it is hereby ordered that the parties in this suit shall maintain the status quo ante bellum pending the hearing of the motion on notice. For the avoidance of doubt the status quo to be maintained is that before the signing of the Local Government Law 2007 and the subsequent dissolution of the Local Government Councils by the Government of Plateau State.”

In the affidavit in support of the motion by 3rd and 4th defendants to discharge the ex-parte order, C.I. Paul Esq. a legal practitioner in the Law Firm of Solomon E. Umoh & Co. stated in paragraph 3 thereof:

“3. That Hon. Michael Dapianlong, the Speaker of the Plateau State House of Assembly informed me on the 18th day of January, 2007 at about 1:00pm at No. 10 Beach Road, Jos and I verily believe him as follows:

(a) That the Plateau State Local Government Council Bill 2007 had since been passed into law.

(b) That arising from the foregoing, the initial enactment had since been repealed.

(c) That the order granted by this Court if not vacated will operate to create a vacuum in the Local Government Legislation and its administration in Plateau State. Copy of the order dated 15th January, 2007 is attached hereto and marked exhibit “A”

(d) That the Plateau State House of Assembly deserves to be heard before an order of mandatory injunction as the present one could be made to reverse or nullify its act.

(e) That the respondents misrepresented facts before this Honourable Court to the extent that the status quo ante bellum was no more feasible as the initial law had been repealed.

(h) That the said order granted, unless discharged will prejudice and cripple the entire machinery of governance of and Local Government administration in Plateau State.

(g) That it will serve the interest of justice that this order be vacated.”

It is not clear whether the counter-affidavits which Sati Zakka deposed to on behalf of 1st and 2nd defendants and the one by Celestina Atsemokhai on behalf of 3rd & 4th defendants all on 25/1/2007 were in respect of the originating summons or the motion on notice for the injunctive reliefs earlier referred to in the judgment. Since the facts deposed to in the counter-affidavits bear direct relevance to the arguments which were advanced by learned counsel to the appellants in the appeal, I shall reproduce the relevant paragraph in the said counter-affidavit deposed to by Sati Zakka, wherein he stated as follows:-

“3. That Joshua D. Bot Deputy Director of Finance, Bureau for Local Government and Chieftaincy Affairs informed me in the chambers of the Attorney-General on the 23rd January, 2007 at about 9:00am in the course of a pre trial conference and I verily believed him to be true as follows:-

(a) That the plaintiffs took out an originating summons against the defendants on the 15th January, 2007 challenging their removal from office.

(b) That the plaintiffs on the various dates indicated below collected their severance allowance.

(i) That the 3rd plaintiff together with Legislative Councilors collected the sum of N 19, 664, 040 as severance gratuities on 2nd January, 2006.

(ii) That the treasury receipt from Wase Local Government Council is hereby attached and marked as exhibit ‘A’.

(iii) That the 15th plaintiff with Legislative Councilors collected the sum of N 19, 664, 040 as severance gratuities.

Treasury receipt dated 6th January, 2006 from Shendam Local Government Council is hereby attached marked exhibit “B”.

(iv) The 2nd plaintiff with Legislative Councilors collected the sum of N 19, 664,040 as severance gratuities.

The treasury receipt from Riyom Local Government Council dated 6th January, 2006 is hereby attached and marked as exhibit “C”.

(v) That the 11th plaintiff with Legislative Councilors collected the sum of N 19, 664,040 as severance gratuities.

The treasury receipt from Mikang Local Government Council and dated 7th January, 2006 is hereby attached and marked as exhibit “D”.

(vi) That the 1st plaintiff with Legislative Councilors collected the sum of N20, 015.964 as severance gratuities.

The treasury receipt from Pankshin Local Government Council dated the

29th January, 2006 is hereby attached and marked exhibit “E”.

(vii) That the 8th plaintiff with Legislative Councilors collected the sum of N 18, 903.966 as severance gratuities. The treasury receipts from Quan-pan Local Government Council dated 9th November, 2006 is hereby attached and marked as exhibit “F”.

(viii) That the 13th plaintiff with Legislative Councilors collected the sum of N 19, 664,040 as severance gratuities.

The treasury receipt dated 30th October, 2006 is hereby attached and marked as exhibit “G”.

(ix) That the 5th plaintiff with Legislative Councilors collected the sum of N 18, 397,250 as severance gratuities. The treasury receipt from Mangu Local Government Council dated the 8th February, 2006 is hereby attached and marked as exhibit “H”.

(x) That the 4th plaintiff with Legislative Councilors collected the sum of N 19, 157,328 as severance gratuities. The treasury receipt dated 3rd October, 2006 from Langtang North Local Government Council is hereby attached and marked as exhibit “1”.

(xi) That the 12th plaintiff with Legislative Councilors collected the sum of N19, 157,328 as severance gratuities. The treasury receipt from Kanke Local Government Council is hereby attached and marked as exhibit “J”.

(xii) That the 16th plaintiff with Legislative Councilors collected the sum of N 19, 664,040 as severance gratuities. The treasury receipt dated 7th November, 2006 from Kanam Local Government Council is hereby attached and marked as exhibit “K”.

(xiii) That the 10th plaintiff with Legislative Councilors (sic) collected the sum of N 19, 664 040 as severance gratuities. The treasury receipt from Jos South Local Government Council dated 6th November, 2006 is hereby attached and marked as exhibit “L”.

(xiv) That the 6th plaintiff with Legislative Councilors collected the sum of N 19,664,040 as severance gratuities. The treasury receipt from Bassa Local Government Council is hereby attached and marked as exhibit “M”.

(xv) That the 14th plaintiff with Legislative Councilors collected the sum of N 19, 410,678.67 as severance gratuities. The treasury receipt dated 7th November, 2006 from Jos East Local Government Council is hereby attached and marked as exhibit “N”.

(xvi) That the 9th plaintiff with Legislative Councilors collected the sum of N19, 664.040 as severance gratuities. The treasury receipt from Bokkos Local Government Council dated the 2nd November is hereby attached and marked as exhibit “O”.

6. That L.I. Walle of counsel and a member of the Hon. Attorney-General team further informed me in the chambers of the Attorney-General on the 23rd November, 2007 (sic) at about 1 pm and 1 verily believed him to be true as follows: –

(a) That the plaintiffs collected the said severance gratuities before the 2nd defendant came to power.

(b) That severance gratuity is (sic) usually paid to political office holders after exiting from office.

(c) That the plaintiffs’ predecessors in office are yet to be paid their severance gratuities.

(d) That by collecting exhibits “A” – “O” while still in office the plaintiffs have voluntarily waived their rights to continue in office until the 19th April, 2007.

(e) That from the various dates indicated on exhibits “A”-“P”, the plaintiffs individually ceased to hold office as chairmen from those dates.

(f) That the dissolution by the 2nd defendant on the 12th of January, 2007 was a mere formality and therefore unnecessary since on that date all the offices previously occupied by the plaintiffs were vacant.

(g) That the 2nd defendant dissolved only the plaintiffs among other elected office holders.

(h) That the act of the 2nd defendant was pursuant to a Law of the State dully passed and assented to.

(i) That by the new Law entitled ‘Local Government Council Bill 2007′, the Government is empowered to dissolve the plaintiffs before the end of their tenure.”

It is curious to note that in the same affidavit the deponent raised preliminary objection to the jurisdiction of the court to hear the originating summons on the ground that the plaintiffs could no longer maintain the action by their conduct in collecting their severance gratuities. Consequently they ceased to be chairmen of the various Local Government Council in the State. 1st and 2nd defendants must have realized the anomaly: hence they filed a motion dated 24th January, 2007 giving notice of preliminary objection to the jurisdiction of the court to hear the case.

The counter- affidavit deposed to by Celestina Atsemokhai on behalf of the 3rd and 4th defendants dealt essentially with the Plateau State Local Government Bill 2007 which was signed into Law by the Governor of Plateau on 12th January, 2007. In paragraphs 2 and 3 of the 5 paragraph counter-affidavit, she deposed to the following facts: –

“2. That Hon. Michael Dapianlong, the Speaker of the Plateau State House of Assembly, informed me on 24th January, 2007 at No. 10 Beach Road, Jos at about 9 am and I verily believe him thus:

(a) That Plateau Local Government Bill, 2007 had since been signed into Law by the Governor of Plateau State;

(b) That the said Bill was signed into Law on 12th January, 2007;

(c) That consequent upon the passage of the said Bill, the Governor of Plateau State went on to dissolve the Executive of the 16 Local Government Councils in the State;

(d) That the act of the Plateau State House of Assembly and the Governor of the State as regards the tenure of the Council Executives was informed by the following reasons:

(i) That 16 Local Government Chairmen had themselves resigned their appointment, abandoned their mandate and reduced their tenure when they voluntarily paid themselves severance benefits from the Local Government purse. Copies of the receipts of payment attached hereto and marked exhibits PLHA “1” – “16”

(ii) That upon receipt of this information, it became clear to the House of Assembly that for reason of probity and good governance there was a need to dissolve the Executive of the Councils, who by their own conduct had waived their right to their initial three-year tenure under the Plateau State Local Government Law No.1 1999.

(iii) That the understanding and payment of the severance benefits was clearly that their tenure had been determined, and they indeed had agreed to this position.

(e) That by reason of the foregoing, it became necessary to dissolve the Executive of the said Councils.

That the 3rd and 4th respondents at the trial of this action will contend that the plaintiffs lack the locus standi to maintain this action.”

The 3rd and 4th defendants also filed notice of preliminary objection praying the court for an order striking out the suit for lack of jurisdiction. All the motions were consolidated by the learned trial Judge on 22/1/2007. See page 148 of the records. At the hearing of the applications, Mr. Quakers, learned counsel to the plaintiffs applied to use the counter- affidavit which Dr. Hilter F. Dadi deposed to on 19/1/2007 to controvert the facts contained in the affidavits in support of the motions filed by 1st and 2nd defendants as well as 3rd and 4th defendants dated 17th and 19th January, 2007 respectively. The learned trial Judge acceded to the request. Because of the arguments that ensued during the hearing of the appeal, paragraphs 3, 4, 5, 6, 8, 10 and 11 of the said counter-affidavit are hereby reproduced as follows; –

“3. We were duly elected Chairmen of Local Government Councils in Plateau State.

4. On the 12th of January 2007, the 3rd defendant passed a new bill titled Local Government Council Law, which was signed into law by the 2nd respondent.
5. The 2nd defendant on the said 12th January 2007 purporting to act under the new law dissolved the Councils constituted by us.
6. Consequently, we commenced this action against the defendants challenging the legality of the defendants’ action resulting in the granting of an order by the court on the 16th of January, 2007 to the effect that parties should maintain status quo pending the hearing of the motion on notice for interlocutory injunction.
7. The plaintiffs being elected Local Government Chairmen have an interest which we seek to protect.
8. I know as a matter of fact that inspite of the order of this Honourable Court, the 2nd defendant has appointed Sole Administrators to act as Local Government Chairmen pending the time that an election would be conducted.
9. I am also aware that in Palkshil (sic) Local Government, the defendants prevented and denied the elected Local Government Chairman, his Vice and the Counselors from gaining access to their offices respectfully (sic) to Carry out and conduct their statutory duties for which they were elected.”

After arguments had been taken, the ex-parte order was set aside and the interlocutory injunction was refused. Thereafter learned counsel addressed the court on the originating summons. In his judgment delivered on 1/2/2007, Sirajo J. answered all the eight questions put forward for determination in favour of the plaintiffs and granted all the reliefs sought. He ordered the immediate re-instatement of the plaintiffs to their respective positions as Local Government Chairmen in Plateau State.

The defendants were dissatisfied with the entire decision and they filed two separate notices of appeal containing six grounds in each notice of appeal. Mr. Solomon Umoh of counsel for the 3rd and 4th defendants dated his notice of appeal 1/2/2007 while Mr. L.I. Walle from the Ministry of Justice Jos appealed on behalf of 1st and 2nd defendants. This notice was dated 2/2/2007. Mr. E.G. Pwajok, Hon. Attorney-General and Commissioner for Justice, Plateau State identified four issues for determination in his brief of argument filed on behalf of 1st and 2nd appellants (who were 1st and 2nd defendants at the trial) while Mr. Ayodele Adewole from the chambers of Solomon Umoh & Co. representing the 3rd and 4th appellants (also 3rd and 4th defendants) formulated six issues for determination. The plaintiffs/respondents filed two briefs in answer to the briefs filed by each set of appellants. The respondents’ briefs were settled by N.I. Quakers of Olisa Agbakoba & Associates. The brief in answer to the issues raised by 1st and 2nd appellants was filed on 2/3/2007 but was deemed filed on 14/3/2007. In this brief, the respondents raised three issues for determination. The brief filed in reply to 3rd and 4th appellants’ brief dated and filed on 12th

March, 2007 contained four issues for determination. The 3rd and 4th appellants filed a reply brief. The issues formulated by the parties are reproduced hereunder as follows: –

1st & 2nd appellant’s issues for determination

1. Whether or not the act of collecting severance gratuities while in offices by the Respondents did not amount to waiving their rights to continue in their said offices. Grounds 2, 3 and 5.
2. Whether the teamed trial Judge was at liberty to come to conclusions outside the evidence before him. Ground 4.
3. Whether the Plateau State Local Government Law, 1999 prohibited the Respondents from waiving their rights. Ground 6.
4. Whether in the face of all the admissions, the learned trial Judge properly evaluated the evidence before him. Ground 1.

3rd & 4th appellant’s issues for determination

1. Whether the payment of severance benefits to the 1st to 16th respondents operated to determine their tenure? Ground 1.
2. Was the learned trial Judge right when he held that the 1st to 16th respondents cannot waive their rights to remain in office notwithstanding that they were paid severance benefit? Ground 2.
3. Was the learned trial Judge right in relying on the cases of Akpan v. Umah (2002) 7 NWLR (Pt. 767) 701 and Governor of Akwa Ibom State v. Umah (2002) 7 NWLR (Pt. 767) 738 as the basis for striking down section 41(4) of the Local Government Law 2007? Ground 3.
4. Whether the originating summons procedure was appropriate for the determination of the right of the parties herein having regards to the facts and circumstances of the case? Ground 4.
5. Was the learned trial Judge Right in granting all the reliefs sought by the 1st to 16th respondents? Ground 5.
6. Whether the learned trial Judge was right to strike down section 41(4) of the Plateau State Local Government Law 2007? Ground 6.

To my mind issues 1, 2, 3 and 6 in the brief filed by 3rd and 4th appellants can be taken together with issues 1 and 3 in the 1st and 2nd appellants’ brief while issue 5 in the 3rd and 4th appellants’ brief will go with issues 2 and 4 in the 1st and 2nd appellants’ brief. Issue 4 dealing with whether the originating summons procedure was appropriate to commence the action stands alone.

Issues for determination by respondents

1 Whether the respondents can waive their right of tenure of office? If yes, can the respondents be said to have waived their right of tenure of office under the circumstances of this case?

2. Whether a remark made by a Judge in the course of his judgment though outside the issue canvassed by the parties and where the decision would remain the same without the remark, will render the judgment a nullity?
3. Whether the fact that a party failed to file a counter affidavit, a judge is bound to accept as true the facts averred to in the affidavit without regard to its probative value?

Respondents’ brief in reply to 3rd and 4th appellants’ brief

1. Whether the purported payment of severance allowance by the 2nd appellant to the respondents without more could determine the respondents’ tenure of office.
2. Whether from the facts and circumstances of this case the respondents can be said to have waived their right of tenure of office.
3. Whether the originating summons procedure was appropriate for the determination of the rights of the parties having regards to the facts and circumstances of the case.
4. Whether the learned trial Judge was right in granting the respondents all the reliefs claimed and if so, was the court not right in striking down section 41 (4) of the Plateau State Local Government Law?

It is appropriate to deal with the issue of originating summons which is contained in issue No.4 of the 3rd and 4th appellants’ brief and issue 3 of the reply of the respondents’ brief to the arguments proffered by 3rd and 4th appellants’ brief.

Learned counsel for 3rd and 4th appellants in dealing with the issue whether the originating summons procedure adopted was appropriate, referred to Order 1 rule 2(2) of the Rules of the High Court of Plateau State 1987 and argued that originating summons is not suitable for commencing hostile proceedings by or in cases where contentious issues of facts or when there is likelihood of substantial dispute as to the facts. Heavy reliance was placed on the following cases: Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208; Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 126; Doherty v. Doherty (1968) NMLR 144; NBN v. Alakija (1978) 9-10 S.C 59 and Famfa Oil Ltd. v. A.-G., Fed. (2003) 18 NWLR (Pt. 852) 453. He submitted that the adoption of originating summons by the 1st to 16th respondents as a mode of commencement of action was wrong. Learned counsel went on to contend that from the affidavits and counter-affidavit placed before the learned trial Judge, it became obvious that the resolution of the facts, raised in the affidavits cannot be easily and effectively carried out through originating summons.

Learned counsel for the respondents relying on order 6 of the Plateau State High Court (Civil Procedure) Rules which was subjected to judicial interpretation in a plethora of cases among which are Keyamo v. L.S.H.A (2002) 18 NWLR (Pt. 799) 605 and Ossai v. Wakwah supra argued that in determining whether there is a dispute or likely to be a contentious issue, the only documents the court will look at is the plaintiffs’ affidavit in support of the originating summons and nothing else. Order 1 rule 2(2) of the Plateau State High Court (Civil procedure) Rules provides as follows –

“2. Proceedings may be begun by originating summons where. –

(a) The sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or

(b) There is unlikely to be any substantial dispute of fact. ”

See: National Bank of Nigeria and Wemabod Estates Limited v. LADY Ayodele Alakija (1978) 9-10 S.C. 59 where Eso J.S.C. stated the law at page 71 thus:

” …. It is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short question of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For, it is to be noted that “originating summons” is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the court. See Re King, Mellor v. South Australian Land Mortgage & Agency Coy (1907) 1 CH. 72″

See also: Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 126 at 188-191; Keyamo v. House of Assembly Lagos State (2002) 18 NWLR (Pt. 799) 605 at 613-614; Famfa Oil Limited v. Attorney-General of The Federation (2003) 18 NWLR (Pt. 852) 453; Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 227.

Learned counsel for 3rd and 4th appellants contended that there is need to resolve whether the 1st – 16th respondents have lost their seats as Chairmen of their Local Governments or not having collected their severance allowance. He forgot too soon the averment by Celestina Atsemokhai dated 25/1/2007 about what Hon. Michael Dapianlong, the speaker told her that justified the passage of the Plateau State Local Government Bill 2007 which was assented to by the Governor on 12th January, 2007, the same date the Local Government Councils were dissolved thus paving way to the constitution of Care-taker Committees. For emphasis, I reproduce once more paragraph 2(d) of the counter-affidavit which Celestina Atsemokhai deposed to on 25/1/2007. It was averred as follows: –

“2. That Hon. Michael Dapianlong, the Speaker of the Plateau State House of Assembly, informed me on 24th January, 2007 at No. 10 Beach Road, Jos at about 9 am and I verily believe him thus:

(a) That the act of the Plateau State House of Assembly and the Governor of the State as regards the tenure of the Council Executives was informed by the following reasons:

(i) The 16 Local Government Chairmen had themselves resigned their appointment, abandoned their mandate and reduced their tenure when they voluntarily paid themselves severance benefits from the Local Government purse. Copies of the receipt (sic) of payment attached hereto and marked exhibits PLHA “1” – “16”

(ii) That upon receipt of this information, it became clear to the House of Assembly that for reason of probity and good governance, there was a need to dissolve the Executive of the Councils, who by their own conduct had waived their right to the initial three-year tenure under the Plateau State Local Government Law No. 1, 1999.

(iii) That the understanding and payment of the severance benefits was clearly that their tenure had been determined, and they indeed had agreed to this position.”

In paragraph 6 of the counter-affidavit which Sati Zakka deposed to on the same 25/1/2007 on behalf of 1st and 2nd appellants was that as a result of the respondents collecting their severance gratuities while still in office they voluntarily waived their right to continue in office until the 19th April 2007 and that the act of the 2nd appellant in dissolving the 16 Local Government Councils was pursuant to the Law of the State duly passed and assented to which empowered the Governor to dissolve the plaintiffs before the end of their tenure. The issue whether the payment of severance benefits to the respondents amounts to a waiver of their right of tenure of office is not an issue of fact but of law since the appellants have deposed to facts showing that the passage of the Plateau State Local Government Bill 2007 into Law and assented to by the Governor on 12/1/2007 was informed by the fact that the respondents had agreed to the passage of the Law giving the Governor power to determine their tenure. The facts deposed to by the plaintiffs/respondents as well as those contained in the defendants/appellants’ counter-affidavit as far as this case is concerned are not contentious. There is no dispute that the 16 plaintiffs/respondents were democratically elected Chairmen of the Local Government Councils in Plateau State for a three-year tenure under the Plateau State Local Government Law No.1 of 1999. It is also not in dispute that their tenure of office is due to expire on 19th April, 2007. It is also agreed between the parties that that tenure was yet to end before the 2nd appellant dissolved the councils. The issues at stake are whether the respondents can waive their right of tenure by collecting their severance benefits before the expiration of the tenure and whether they can give consent to the passage of the law giving the power to the Governor to dissolve the councils and appoint care-taker councils in their place. These are questions of law which the court can construe by looking at the relevant provisions of the law vis-a-vis the Constitution. It is my firm view that the action was properly commenced by originating summons. I therefore answer issue 4 in 3rd and 4th appellants’ brief and issue 3 in the respondents’ brief in favour of the respondents.

The remaining two issues namely the act of the respondents collecting their severance benefits constituting a waiver of their right to continue in their offices and the striking down of section 41(4) of the Plateau State Local Government Law are inter related and I intend to treat the two issues together. The trump card being played by the appellants is the argument that by collecting their severance benefits before the expiration of their three-year tenure they waived their right to remain in office. It was also argued that since the State House of Assembly acting under sections 4(7) and 7 of the Constitution of the Federal Republic of Nigeria 1999 had legislated on the Plateau State Local Government Law and tinkered with the tenure therein, the Governor was right in exercising his power under section 5(2) (a) and (b) of the Constitution to dissolve the councils and appoint Care-taker Committee. Mr. Umoh of counsel for 3rd and 4th appellants in amplification of the argument in the brief orally conceded that ordinarily where a right has been acquired in an enactment that has been repealed; the rights so acquired survive the repeal. This point was well made in the brief where learned counsel made the following submissions on page 11 of the brief:-

“There is no gainsaying that the only life-line available to the 1st to 16th respondents was the provision of section 6 of the Interpretation Act as it concerns the rights that they had under the repealed Local Government Law 1991 (sic) which ordinarily ought to be preserved.

But in the circumstances of this case it is submitted without fear or equivocation that the 1st to 16th respondents cannot insist on taking the benefits of the said rights when they had by their own showing made the appellants believe that they were ready to abandon their mandate negotiate their tenure and forego their rights thereunder by accepting severance benefits.”

This latter submission is not in tandem with the averments contained in paragraph 2(d) (i) of the counter-affidavit of Celestina Atsemokhai on 25/1/2007 wherein she categorically stated that:

“(i) the 16 Local Government Chairmen had themselves resigned their appointment, abandoned their mandate and reduced their tenure when they voluntarily paid themselves severance benefits from the Local Government purse …”.

This according to the deponent was what informed the decision to dissolve the Local Government Councils so as to promote probity and good governance in the Local Governments. If indeed the respondents had infact paid severance benefits to themselves before the expiration of their tenure, and such benefits could be enjoyed only after the tenure, then the respondents clearly breached the law for which they ought to have been prosecuted or made to pay back. The treasury receipts exhibits “A” -“O” which Zakka Sati attached to his counter-affidavit of 25/1/2007 on behalf of 1st and 2nd appellants were all issued by the Ministry for Local Government and Chieftaincy Affairs which is not under the control of the Local Government Chairmen but answerable to the Governor of the State. The payment of the severance benefits to serving Chairmen and other Council members was a Greek gift which was meant to pave way for the dissolution of the Councils. There is no justification whatsoever for the Plateau State Government to pay severance benefits to the Council Chairmen whose tenure had not ended while leaving out those who were entitled to be paid as deposed to in paragraph 6(b) and (c) of the counter-affidavit of Sati Zakka on 25/1/2007 on behalf of 1st and 2nd appellants wherein he stated that: –

“6 That L.I. Walle of counsel and member of the Attorney-General team further informed me in the chambers of the Attorney-General on the 23rd November, 2007 (sic) at about I pm and I verily believed him to be true as follows; –

(a) ……….

(b) That severance gratuity is usually paid to political office holders after exiting from office.

(C) That the plaintiff’s predecessors in office are yet to be paid their severance gratuities.”

The issue of probity and good governance was conjured by the deponent and only meant to be a red herring. Nobody can be fooled as to the intention of the State Government in paying the severance benefits to the respondents before the time was due for the payment. I do not accept the argument of learned counsel for the appellants in their various submissions that the respondents have, by accepting their severance benefits, abandoned their mandate or negotiated their tenure. If any law was breached in the payment of the severance benefits, I hold that the parties are in pari delicto and the main perpetrator of the wrongful act should not benefit from his wrong and be allowed to dissolve the councils and appoint care-taker committees in their place.

Section 4(7) of the Constitution of Nigeria 1999 vests on the House of Assembly of a State power to made laws for the peace, order and good government of the State. The section states as follows:

“4 – (7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say: –

(a) Any matter not included in the Exclusive Legislative List set out in Part 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.”

Section 7(1) of the Constitution which deals with the Local Government system provides as follows: –

“7(1) The system of Local Government by democratically elected Local Government councils is under this constitution guaranteed: and accordingly, the Government of every State shall subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”

Section 5(2) of the Constitution which vests executive powers of a State on the Governor states –

“5(2) Subject to the provisions of this Constitution, the executive powers of a State –

(a) Shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor Commissioners of the Government of that State or officers in the public service of the State; and

(b) Shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”

It is the Constitution itself that guarantees under section 7(1) the operation of the Local Government system by a democratically elected Local Government Council. The Constitution also provides in section 197(1) (b) the establishment for each state the State Independent Electoral Commission whose powers as spelt out in the Third Schedule part II B. section 4 to the Constitution are: –

“(a) to organize, undertake and supervise all elections to Local Government councils within the State;

(b) to render such advice as it may consider necessary to the Independent National Electoral Commission on the compilation of and the register of votes in so far as that register is applicable to Local Government elections in the State.”

In taking the Oath of office of Governor of the State as spelt out in the Seventh Schedule to the Constitution, the Governor swore to:

“…Discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law that I will to the best of my ability preserve, protect and defend the Constitution of the Federal Republic of Nigeria … (Italics mine for emphasis.)

The Governor swore to preserve, protect and defend the Constitution and not to mutilate it.

Although the House of Assembly has power to make laws, such laws must be in accordance with the provisions of the Constitution; The House of Assembly has no power to make any law giving the Governor power to truncate a democratically elected Local Government Council. This explains the rationale which preserves the tenure of a Local Government Council when the Law under which the Local Government Council has been amended or repealed. Since the respondents are public officers they are bound to observe and conform to the Code of Conduct and if they breached any law in the performance of their duty as public officers, they could be referred to the Code of Conduct Tribunal or be prosecuted under the Penal Laws which have been enacted for that purpose.

The penchant by State Governors in dissolving Local Government Councils is clearly undemocratic. It is only when a State of emergency has been declared that can warrant the suspension of democratic institutions in the polity.

Section 15(1) and (3) of the Local Government Law No.1 of 1999 state as follows: –

“15(1) Subject to the provisions of this law, a person shall hold the office of Chairman until: –

(a) His successor in office takes the oath of that office;

(b) He dies while holding that office;

(c) The date when his resignation from office takes effect;

(d) He otherwise ceases to hold office in accordance with the Provision of this Law; or

(e) He becomes a member of a secret society.

(2) …….

(3) Subject to the provisions of subsection (1) of this section, the Chairman shall vacate his office at the expiration of a period of 3 years when: –

(a) In the case of first person elected under this Law, he took the Oath of allegiance or the Oath of office:

(b) The person last elected to that office took the Oath of allegiance and the Oath of Office or would but for his death have taken such Oaths.”

The much trumpeted law which provides for the remuneration for Political and Public Office Holders at the State and Local Government levels provides in section 8 that –

“8. No Political or Public office holder who leaves office for whatever reason before the expiration of four years in the case of State and three years in the case of Local Governments shall be entitled to severance gratuity as provided for in the third and fifth schedules to this law.”

This shows clearly that the Plateau State Government broke the law when the State for whatever reason decided to pay the respondents their severance gratuity before they had completed their three-year tenure. The judgment of the Supreme Court in Attorney-General of Abia State v. Attorney-General Federation (2006) 16 NWLR (Pt. 1005) 265 which gave the State Governments power to superintend the funds accruing to the Local Governments did not give them the liberty to misapply such funds.

Could the respondents by conduct consent to the making of a law by the State House of Assembly empowering the Governor to dissolve the elected Local Government Councils and set up care-taker committees?

In Akpan v. Umah (2002) 7 NWLR (Pt. 767) 701 this court dealt with the issue in which Ekpe J.C.A. held as follows:

“Although it is within the legislative power of a State House of Assembly to make a law to regulate a Local Government Council in the State plagued with crisis or to make a law to prescribe for an event upon which happening a Local Government Council is dissolved or the Chairman or Vice-Chairman of a Local Government Council is removed or vacates his office, any law made by the House of Assembly which provides for nomination of membership of a Council or appointment of an Administrator or Caretaker Committee to replace a democratically elected council is inconsistent with the clear and unambiguous provisions of section 7(1) of the 1999 Constitution which guarantees democratically elected Local Government Councils and is therefore unconstitutional to the extent of the inconsistency See: Akan v. A. -G., Cross River State (1982) 2 FNR 177.” See also: Akinpelu v. A.-G., Oyo State (1982) 2 FNR 48.

Even if the respondents consented to the dissolution of the councils which paved way for the enactment of the law giving the Governor power to appoint Caretaker Committees, it will still not alter the position because the parties have no power to contract out of the Constitution. It is the same as parties agreeing to vest jurisdiction on a court where such jurisdiction has been explicitly ousted.

In Ariori v. Elemo (1983) 1 SCNLR 1 where issue for waiver was discussed as regards the fundamental right to speedy or fair trial, Eso JSC in the lead judgment stated at page 13 thus:

”The next argument is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui generis. He is under no legal disability. He should be able to forego the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. A simple example could be seen in a right which has been conferred by contract, whereby the benefit is principally for him, has full competence to waive that right. What obtains in the case of a contract should go for benefits conferred by statute. A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.”

I am of the firm view that the respondents’ right to remain as Chairmen of their various Local Government Councils for three years can be waived because the right to be elected as a Chairman of a Local Government Council is for the sole benefit of the individual which can be waived either by resignation or through removal for reprehensible conduct. It is not right that enures to the electorate such that the beneficiary cannot compromise that right. Although the respondents as plaintiffs did not controvert paragraph 2(d) of the counter-affidavit of Celestina Atsenokhai which she deposed to on 25/1/2007, the learned trial Judge has found and I agree with him that contrary to the assertion by the said deponent that the respondents paid themselves the severance benefits, the payer is the Ministry for Local Government and Chieftaincy Affairs, Plateau State. This therefore casts a serious doubt on the assertion that the understanding and payment of the severance benefits was clearly that their tenure had been determined and that they agreed to this position. The finding by the learned trial Judge that there is no evidence to show that the plaintiffs accepted the payment in lieu of their remaining tenure cannot be faulted. Nothing stopped the writer of exhibits “A” -“O” to indicate that the payment of the severance benefits was to be in lieu of the remaining tenure of the respondents or get them to give a signed undertaking that these payments were made in lieu of the remaining period of their tenure. Even if the payments were made for that purpose, the appellants, most especially the 2nd appellant could not take advantage of the dissolution of the councils to appoint Caretaker Committee instead of notifying the State Electoral Commission to immediately conduct elections so that newly democratically elected councils would be sworn in to occupy the councils whose tenure will end on 19th April, 2007.

The action by the Governor in dissolving the Councils and proceeding to appoint Caretaker Committees has rendered his action unconstitutional. The learned trial Judge was therefore right in striking down section 41(4) of the Local Government Law, 2007 on the ground that it is inconsistent with section 7 of the Constitution. This however does not stop the 4th appellant from immediately setting in motion plans to hold Local Government Elections before the tenure of the Local Government Councils comes to an end on 19th April, 2007.

I hold that the appeal lacks substantial merit and it is accordingly dismissed.

I affirm the declarations granted by the lower court except declarations nos. 7 and 10. In their place I order that the 4th defendant/appellant being charged with the statutory duties of conducting elections into Local Government Councils shall immediately arrange fresh elections for the Local Government Councils in Plateau State preparatory to taking over on 19/4/2007 or immediately thereafter. The order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th defendants whether by themselves, their servants, agents, and privies from doing anything or continuing with any act or making any pronouncement or taking any step whatsoever or otherwise acting in any manner that will terminate or have the effect of terminating the plaintiffs three year term of office before its expiration on 19th April, 2007 is modified to affect only the 1st, 2nd and 3rd defendants/appellants.

I award costs of N 10, 000.000 to the respondents against each set of appellants except the 4th appellant.

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Other Citations: (2007)LCN/2308(CA)