An insight into the decision of the Supreme Court therein.
Citation: (2022) 1 NWLR PT. 1811 AT 259.
Courtesy: Moruff O. Balogun, Esq.
Summary of facts:
The appellants on 9th September 2014 assumed office as Chairmen and Councilors of the 34 Local Government Councils in Katsina State, upon taking oath of office. Sometime in May June 2015, about 9 months into their tenure, there was an allegation of financial mismanagement against them, consequent upon which the 1st respondent [GOVERNOR OF KASTINA STATE] informed the 3rd respondent [ KATSINA STATE HOUSE OF ASSEMBLY] in writing of alleged illegal diversion of funds totaling over 7 billion Naira by the appellants to ALGON account from the State Joint Local Government/SURE-P account.
Upon receiving the information from the 1st respondent, the 3rd respondent instituted a committee to investigate the allegations. The committee concluded its investigation and found the appellants wanting.
After the receipt of the report from the committee, the 3rd respondent passed a resolution wherein it recommended the dissolution of the 34 Local Government Councils in Katsina State on account of the financial impropriety and forwarded same to the 1st respondent. On 10th July 2015, the 1st respondent issued a notice published in the Katsina State Government Gazette on 16th July 2015 dissolving all the 34 Local Government Councils in the State.
Aggrieved, the appellants on 23rd September 2015 instituted an action against the respondents via an Originating Summons, at the High Court of Katsina State.
The suit challenged the constitutionality of section 81(a) of the Local Government Law of Katsina State, 2000 (as amended) that empowers the Governor to dissolve democratically elected Local Government Councils and remove the Chairmen and the Councilors.
By dint of section 15(1) of the said Law, the appellants, as elected Chairmen and Councilors, were entitled to hold offices for a fixed term of two years, beginning from 9th September 2014 when they each took and subscribed to the oath of office.
At the conclusion or trial, the trial court per Bako, J. delivered its judgment on 11th May 2016.
It held that the Local Government Councils Dissolution Notice which dissolved the 34 Local Government Councils or Katsina State was not inconsistent with the provisions of the 1999 Constitution (as amended). It then dismissed the appellants claims for lacking in merit.
Aggrieved, the appellants appealed to the Court of Appeal. In its judgment delivered on 21st December 2018, the Court of Appeal held that the 34 Local Government Councils were dissolved on proven allegation of financial impropriety. It further held that the Local Government Council Dissolution Notice 2015, issued by the 1st respondent (exhibit KT3) and section 81(a) of the Local Government Law of Katsina State, 2000 (as amended), were not inconsistent with the provisions of sections 4 and 7 of the
Constitution of the Federal Republic of Nigeria, 1999(as amended).
It failed to follow the decisions of the Supreme Court in the cases of Governor, Ekiti State v Olubunmo (2017) 3 NWLR (Pt. 1551) 1 and Eze v. Governor of Abia State (2014) 14 NWLR (Pt. 1426) 192 with similar facts cited before it. It dismissed the appeal of the appellants and affirmed the judgment of the trial court.
Still aggrieved, the appellants appealed to the Supreme Court.
The parties in appeals Nos. SC/958/2018 and SC/735/2018 agreed that the decision of the Supreme Court in the instant appeal shall be binding on those appeals.
Sections 1(1), (2), & (3) and 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) state:
“1(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
- 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 the Constitution, ensure their existence under a law which provides tor the establishment, structure, composition, finance and functions of such councils.”
Section 81A of the Local Government Law of Katsina State, 2000 (as amended) provide:
81A. Without prejudice to the generality of the provisions contained in sections 80 and 81 of the principal law—
That in the interest of security, peace, order and good governance or for acts of mismanagement of public funds, the governor may at any time before the expiration of tenure of a Local Government Council dissolve any or all the 34 Local Government Councils;
The State House of Assembly may by same reason as in paragraph (a) above pass resolution with the support of two majority of its members to dissolve any or a the 34 Local Government Councils, subject to the approval of the Governor.”
Held: The Supreme Court allowed the appeal by setting aside both the decisions of the Court of appeal and the trial court.
The following issues were raised and determined by the Supreme Court:
On using dissolution of local government councils as a political weapon-
It is clear as noon day that all tiers of Government in this country i.e. Federal,
State and Local Government do have issues bordering on corruption by certain officials of these tiers of Government. I am yet to see the Federal Government being dissolved simply because an official or more have embezzled money or misbehaved in certain other way. I have also not seen a state government being dissolved in like fashion.
The question is, why is the local government always dissolved at the slightest provocation? The simple answer is that it is a political weapon against rival political parties because more often than not, it is an incumbent political party that dissolves a local government which is manned by a rival political party. This is unhealthy and for the sake of generations yet unborn, must be put to rest forthwith.
On effect where a law is inconsistent with the provision of the Constitution-
By virtue of section 1(3) of the 1999 Constitution (as amended), any law that is inconsistent with the Constitution is void to the extent of its inconsistency and the Constitution shall prevail. In the instant case, the Court of appeal erred when it held that exhibit KT3 made pursuant to the legislative function of the Katsina State House of Assembly was not inconsistent with the provision of sections 7 and 4 respectively of the 1999 Constitution (as amended) nor unconstitutional.
It erred further when it held that there was no unconstitutionality in the act of the respondents in dissolving the 34 Local Government Councils pursuant to section 81(a) of the Katsina State Local Government Law 2000, which was not inconsistent with sections 7 and 4 of the 1999 Constitution (as amended); and that neither was the action taken by the 1st respondent a usurpation of the powers of the court.
On duty on governor not to destroy but ensure that the system of local government continues unhindered-
It is the duty of the governor to ensure that the system of local government continues unhindered. Dissolving local government councils and replacing them with caretaker committee amounts to the Governor acting on his whims and fancies, unknown to our laws, clearly illegal. It is the duty of the Governor to ensure their existence rather than being responsible for destroying them.
On whether a court of equity will allow the executive to get away with wrongful acts-
A court of equity will not allow the executive to get away with wrongful acts, rather it would call the executive to order and ensure that justice is not only done but seen to be done.
On power of Supreme Court to assume full jurisdiction over a proceedings as if it was instituted in the Supreme Court as a court of first instance-
By virtue of section 22 of the Supreme Court Act, the Supreme Court is empowered to make any order which could be validly made by the trial court and to generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Supreme Court as a court of first instance.
On whether appointment or non-appointment of Caretaker committee is a relevant consideration in determining whether the governor of a state has the power to dissolve the local government councils of the state-
The appointment or non-appointment of a caretaker committee is an irrelevant consideration in determining whether or not the governor of a state has the power or competence to dissolve the Local Government Councils of the State under section 7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
In the instant case, the fact that caretaker committees were not set up only aggravated the situation and made it more offensive and outrageous. The Court of Appeal should not have treated it as a remedy or justification for the breach of the Constitution.
On whether governor of a state has power or competence to dissolve the local government councils in the state-
By virtue of section 7 of the 1999 Constitution (amended), the governor or a state has no power or competence to dissolve the local government councils whether or not he appoints caretaker committee to replace them.
On option where a local government Council misbehaves or embezzles money or involved in any fraudulent activity –
Where a local Government misbehaves or embezzles money or is involved in any fraudulent activities, the solution is not to dissolve the entire local government. There are agencies of government e.g the Police, EFCC, ICPC and others, which could be invited to investigate the matter and where anybody is found culpable, should be sanctioned in line with available laws governing the matter.
On consistent flouting of the Constitution by the governors and houses of assembly of various states –
The Governors and the Houses of Assembly of the various States have consistently, with arrant impunity, flouted the Constitution, which they, each, swear to defend, preserve and protect; and neglected or refused to heed the authoritative pronouncements of the Judex. They appear to behave like the French Bourbons: learning nothing, and forgetting everything.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.