Nwokedi v. Anambra State Govt. & Anor: On Whether Councillor Recognised by the 1999 Constitution as Member of Legislative House

An insight into the decision of the Supreme Court therein.

Citation: (2022) 7 NWLR PT. 1828 AT 29.
PARTIES IN FULL:
CHARLES NWOKEDI
V.

  1. ANAMBRA STATE GOVERNMENT
  2. ONITSHA NORTH LOCAL GOVERNMENT .

Courtesy: Moruff O. Balogun Esq.

Summary of facts:

The appellant instituted an action against the respondents claiming a declaration that he has complied with the provision of Law the State Proceeding Law as well as the Local Government Law relating to service of notice; the Sum of N5,500,000 as his salaries from June 1999 to May 2003; the sum of NI,140,000 being his entitlement for accommodation; another sum of N1,140,000 as furniture allowance, another sum of N1,140,000 as severance gratuity: and an order directing the 1st respondent to pay the claimed sums from source out of the State Joint Local Government Account, from the monies due to the 2nd respondent from the account.

The appellant was a councillor duly elected in 1999 and served the 2nd respondent until the termination of the tenure of his office in May 2002. In the course of his service as councilor, controversies arose with respect to the proper remuneration payable to him. Eventually, his remuneration formed the subject-matter of recommendation of the Revenue Mobilisation Allocation and Fiscal Commission, which fixed salaries of all political office holders at all levels of government and sent out circulars to that effect.

Subsequently, the 1st respondent, through the House of Assembly of Anambra State, passed the Public Officers’ Salaries Law No. 7 of Anambra State of 2001, which codified the circular of the Commission.

According to the appellant, since the passing of the Law, he through the Anambra State Councillors Forum (ASCOF) made several representations to the respondents to pay him his salary all to no avail.

The respondents denied the appellant’s claim and posited that it was unconstitutional, being in breach of sections 80(1) and 124 of the 1999 Constitution (as amended).

At the conclusion of the trial, the trial court in its judgment dismissed the appellant’s case and held that the House of Assembly of Anambra State exceeded its powers when it enacted the Public Officers’ Salaries Law No. 7 of Anambra State of 2001, purporting to have charged salaries and emoluments of councillors into the Consolidated Revenue Fund of the State.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal. The Court of Appeal in its judgment dismissed the appeal. It held that the appellant should not have been included as one of the beneficiaries of the scheme by either the House of Assembly or the Revenue Mobilisation Allocation and Fiscal Commission.

Still dissatisfied, the appellant appealed to the Supreme Court.
In determining the appeal, the Supreme Court considered the provisions of sections 4(6) and (7)(a), (b) and (c) and 124(1), (2), (3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). They respectively state thus:
“4(6) The Legislative Powers of a State of the Federation shall be vested in the House of Assembly of the State.”

“(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:-
any matter not in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;
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
any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”

“124(1) There shall be payable to the holders of the offices mentioned in this section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.

(2) The salaries and allowances payable to the holders of the offices mentioned shall be charged upon the Consolidated Revenue Fund of the State.

(3) The salaries payable to the holders of the said offices and their conditions of service other than allowances shall not be altered to their disadvantage after their appointment.

(4) The offices aforesaid are offices of the Governor, Deputy Governor, the Auditor-General of a State, Auditor-General of a Local Government Councils of State,
and Chairman and members of the following bodies, that is to say, the State Civil Service Commission, the State Judicial Service Commission, the State Local Government Service Commission.”

Held: (Unanimously dismissing the appeal)

The following issues were raised and determined by the Supreme Court:

On whether Councillor recognised by the 1999 Constitution as member of legislative house-
Councillors are legislators as of right on their Local Government tier of government. However, they are not legislators properly so called as envisaged by the Constitution in section 318(1) thereof, which states that in the Constitution, unless it is otherwise expressly provided or the context otherwise requires, legislative house means the Senate, House of Representatives or a House of Assembly.

The legislative council of a Local Government is not mentioned by the Constitution. So, by extension, a Councillor is not recognised by the Constitution as a member of a legislative house properly so-called.

On meaning of “public service of a State-
Section 318(1) of the 1999 Constitution (as amended) defines the “public service of a State” to mean the service of the State in any capacity in respect of the Government of the State and includes service as mentioned in sub-paragraphs (a) to (9) thereunder.

On when money can be withdrawn from Consolidated Revenue Fund of State –
Section 120 of the 1999 Constitution (as amended), which in subsection (1) thereof established the Consolidated Revenue Fund of the State, stipulates in subsection (2) thereof that no money shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the Fund by the Constitution, or where the issue of those money has been authorised by an Appropriation Law, Supplementary Appropriation Law or Law passed in pursuance of section 121 of the Constitution. Therefore, any expenditure that is to be charged upon the fund by the Constitution shall be as stipulated by section 124(4) of the Constitution.

On whether section 32(d). item N, Part 1, Third Schedule, 1999 Constitution includes Councillors whose salaries and emoluments shall be fixed by Revenue Mobilisation Allocation and Fiscal Commission and charged upon State Consolidated Revenue Fund-
The provision of section 32(d), item N, Part 1 of the Third Schedule to the 1999 Constitution (as amended) does not expand the scope of the Revenue Mobilisation Allocation and Fiscal Commission to include Local Government Area Councillors as beneficiaries of political office holders whose salaries and emoluments are charged upon the Consolidated Revenue Fund of a State. Section 32(d) states that the Commission shall have power to determine the remuneration appropriate for political office holders, including the President, Vice President, Governors, Deputy Governors,
Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of the Constitution.

The import of section 32(d), item N, Part 1 of the Third Schedule to the 1999 Constitution (as amended), which is an assemblage of sections 84 and 124 of the Constitution as well as section 6(1)(d) and (f) of the Revenue Mobilisation Allocation and Fiscal Commission Act, is that the inclusion of Local Government Councillors by the Public Officers’ Salaries Law No. 7 of Anambra State, 2001 in the list of political office holders or public officers whose their salaries shall be fixed by the Revenue Mobilisation Allocation and Fiscal Commission and charged upon the Consolidated Revenue Fund of Anambra State is at Variance with the express provisions of the 1999 Constitution (as amended).

Per OKORO, J.S.C. at pages 68-69, paras. F-A:
“I do not accept the submission by learned counsel for the appellant that section 32(d),
item N, Part 1of the third schedule of the Constitution is an expansion to the scope of the Revenue Mobilization Allocation and Fiscal Commission to include Local Government
Area Councilors as beneficiaries of political office holders whose salaries and emoluments are charged upon the Consolidated Revenue Fund of the State.

The argument is incorrect and an attempt to read into the law what was not intended by the drafters of the Constitution. The courts below were right to resist it and this court cannot allow it to flourish. I hold therefore that the law No. 7 of 2001 which provide for salaries of public officers in Anambra State and for related purposes was
enacted ultra vires the powers of the Anambra State House of Assembly. It is therefore void.”

On whether section 6(1)(f) of Revenue Mobilisation Allocation and Fiscal Commission Act expanded scope of public officers or political office holders whose remuneralion are determined by Revenue Mobilisation Allocation and Fiscal Commission-

The argument of learned counsel for the appellant is that the scope of political office
holders, whose names were not mentioned, have been expanded vide section 6(1)(f) of the Revenue Mobilization Allocation and Fiscal Commission Act which provides that the
Commission shall have power to-
(f) discharge such other functions as may be conferred on it (Commission) by the
Constitution of the Federal Republic of Nigeria; this Act; or any other Act of
the National Assembly’.

This stance by learned counsel is with respect, untenable. The simple reason is because those other functions that the Commission ought to perform or upon which extra power may be conferred on it by the Constitution, the Act or any other Act of the National Assembly do not envisage expanding the scope of political office holders or public officers whose names have not been mentioned either by the Constitution, the
RMAFC Act itself or any Act of the National Assembly.

Assuming (but without conceding) that the scope is to be expanded, in the clear
and unambiguous words of section 6(1)(f) of the RMAFC Act, it is only the RMAFC Act
itself; the Constitution; or another Act of the National Assembly, that can expand the
scope or powers thereof and not an inferior Legislative House like that of Anambra
House of Assembly.”

On power of House of Assembly of a State to prescribe remuneration for categories of public officers and political office holders-
Consequent upon the general legislative powers conferred upon a State House of Assembly by section 4(6) and (7) of the 1999 Constitution (as amended), section 124 of the Constitution empowers the House of Assembly of a State to prescribe remuneration for certain categories of public officers and political office holders.

The section stipulates inter alia that there shall be payable to the holders of the offices mentioned in the section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.

The salaries and allowances payable to the holders of the offices mentioned shall be charged upon the Consolidated Revenue Fund of the State. The salaries payable to the holders of the offices and their conditions of service other than allowances shall not be altered to their disadvantage after their appointment.
The offices are offices of the Governor, Deputy-Governor, the Auditor-General of a State, Auditor General of a Local Government Councils of State, Chairman and members of the State Civil Service Commission, Chairman and members of the State Independent Electoral Commission, Chairman and members of the State Judicial Service Commission
and Chairman and members of the State Local Government Service Commission.

On legislative powers of House of Assembly of a State-
By the combined effect of section 4(6) and (7)(a), (b) and (c) of the 1999 Constitution (as amended), a State House of Assembly is empowered to make laws for the peace, order and good government of a State. By virtue of section 4(6) and (7(a), (b) and (c), the legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

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:
any matter not in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution;
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
any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

On power of legislature to make and amend laws-
The power bestowed on the legislature, like a State House of Assembly, to make, enact and pass laws is undiluted so long as any laws passed by it is within its own legislative competence and authority. It is not only that the legislature can enact laws, it can also amend any existing law passed by the arm of government as circumstances may permit. Whereas it is the duty of the legislature to enact law, that of the judiciary is to interpret the laws so made.

Therefore, where there is dissatisfaction with the state of the laws as it exists and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendment thereto.

The duty both to make and amend laws so made belongs exclusively, by constitutional arrangement, to the legislature as provided under section 4 of the 1999 Constitution. Therefore, the power to make laws and, in appropriate cases, to amend the laws is vested in National or State Assembly.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WhatsApp]


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