ABOH & ORS v. BENUE STATE GOVT & ANOR (2021)

ABOH & ORS v. BENUE STATE GOVT & ANOR

(2021)LCN/15182(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, March 11, 2021

CA/MK/152/2015

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

HON. BARR. AMOS ABOH & ORS APPELANT(S)

And

BENUE STATE GOVERNMENT & ANOR RESPONDENT(S)

RATIO

WHETHER AN APPEAL IS DEFECTIVE WHERE ALL THE PARTIES WHO LOST THE ACTION AT THE LOWER COURT ARE NOT BEFORE THE APPELLATE COURT

… I need to state that parties in civil proceedings do not go on appeal just for the fun of it. Only parties who feel aggrieved and see the need or are desirous so to do, go on appeal after a judgment is given against them. There are however, those who may not be keen to appeal against the vexed judgment, irrespective of their loss – such parties are exempted from so appealing. The right to appeal to my mind, is a personal right and as such can be waived by the party or parties concerned. The Supreme Court had no doubt held that the right of appeal is a Constitutional right exercisable by a party in a civil suit. See Eyesan vs. Sanusi (1984) 4 SC U5 at 136, (1984) 1 SCNLR 253. Thus, whether the plaintiff or the defendant or the applicant or petitioner and the respondent in civil proceedings, all such parties are imbued with the right of appeal. By necessary extension of the rule therefore, the parties in an action or any other person named in the record could appeal. A non-party not named in the record but having an interest in the matter must apply for leave of Court in order to appeal. However, the important point to note is that the party appealing must have been aggrieved by the decision, as a party cannot appeal against a decision in his favour. A person may be a party to a suit but may not be interested in appealing a decision of the lower Court that went against him, such a person cannot in the circumstance be yoked with other parties who are desirous to appeal. This is to say that he may not be in the quest to appeal. His non-appealing cannot result in a foreclosure on the part of any of the other parties in the suit to appeal. By the provisions of Section 243 (1)(a) of the 1999 Constitution (as amended): Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be– (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, … It must be noted that the foregoing provision applies to an aggrieved person with the intention to appeal. By the extant Rules of this Court, an appellant means any person who appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf. He is the one who opposes the ruling or judgment of the Court below. See Ichu vs. lbezue (1999) 2 NWLR Pt. 591, pg. 437. Once a party is unperturbed by a judgment he lost in and therefore not minded to appeal, such a party cannot be forced to appeal against same. See also the authorities of IGP vs. Mobil Producing (Nig.) Unltd. (2018) LPELR-44356(SC); Fawehinmi vs. Akilu (1987) NSCC 1265 at 1289; Dairo vs. Gbadamosi in Re – Afolabi (1987) 4 NWLR Pt. 63, pg. 18; Mobil Producing Nigeria Unlimited vs. Monokpo (2003) 12 SC Pt. 11, pg.50 at Pp 66-67; Prof. Awojobi vs. Dr. Ogbemudia (1983) 8 SC 92; and Akinbiyi vs. Adelabu (1956) SCNLR 109. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WHETHER THE PROVISION OF SECTION 21(1), (2) BENUE STATE LOCAL GOVERNMENT LAW, 2007 AND SECTION 2 (A), (B) OF THE BENUE STATE LOCAL GOVERNMENT (AMENDMENT) LAW, 2012 IS VALID CONSIDERING ITS INCONSISTENCY WITH THE PROVISION OF SECTION 7(1) OF THE CONSTITUTION

Under Section 7(1) of the Constitution of the Federal Republic of Nigeria, as amended (hereinafter the Constitution) which provides for Local Government System, it is stipulated that: 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. From the foregoing, it is clear that the foremost legislation of the land, contemplates a democratically elected Local Government Councils as opposed to appointed or selected and hand-picked members of Local Government Councils. It was consequent upon this constitutional provision, that the Benue State House of Assembly enacted their Local Government Council Law, 2007 which law was later amended by the Local Government (Amendment) Law, 2012 which in turn made provision for the tenure of Chairmen and Members of Councils as follows: 2. The Local Government Law No. 4 of 2007 (hereinafter called the Principal Law) is hereby amended in the following respects: a) … b) By the deletion of Section 21(3) and the substitution therefor of a new Section 21(3) as follows- “(3) Chairman and Members of the Interim Council set up in accordance with Sub-sections (1) and (2) of this section shall serve for a period of six months at the first instance and may be re-appointed for another period not exceeding six months”. Contrary to the clear intendment of Section 7 of the Constitution which provided for the establishment of a “democratically elected” Chairmen and Members for the Local Government Councils, the Benue State House of Assembly by their enactment of the Local Government (Amendment) Law (supra), made provision for “appointment” and “re-appointment” of Chairmen and Members of “Interim Council”. It is obvious that by the Law, the Benue State Government has tried to circumvent the enabling and supreme Law of the land. However, this posture is implausible and unsustainable given the provisions of Section 1(3) of the Constitution supra wherein it is stipulated that: 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. See also the authorities of Dogari vs. Att-Gen., Taraba State (2011) All FWLR Pt. 603, pg. 1926, 1974 – 1975, paras G-D; Akpan vs. Umah (2002) 7 NWLR Pt. 767, pg. 701; Akpan vs. Att-Gen., Akinpelu vs. Att-Gen., Oyo State (1982) 2 FNR 428; and Governor, Akwa Ibom State vs. Umah (2002) 7 NWLR Pt. 767, pg. 738, 772, paras. E-H, where this Court on the question whether House of Assembly of a State can make law for dissolution of Local Government and for bye election, – held as follows: It is true that the word “dissolution” is missing in the provision of Section 7(1) of the 1999 Constitution set out above but the House of Assembly that has the powers to make laws to regulate the affairs of a Local Government Council, that is, for establishment, structure, composition, etc. of such council can make a law for dissolution of an erring Local Government Council and for a bye-election if not there will be chaos and disorder; guaranteeing the system of Local Government by democratically elected Local Government Council under the Constitution means that the Local Government Council must be a democratically elected one and if a Local Government Council is dissolved and a bye-election is ordered, that is quite in order. It will be otherwise if the local government is dissolved and a Caretaker Committee is appointed in its place. It therefore follows that a Governor or Chief Executive of a State can act on a law validly made under Section 7(1) of the 1999 Constitution… In the event of a community reading of the provisions of Sections 2(a) and (b) and 21(1) and (2) of the Benue State Local Government (Amendment) Law, 2012 on the one part and Section 7(1) of the Constitution on the other part, it will be clear that they are devoid of synchronization. Being in conflict with each other therefore, it follows that one part has to give way for the other and that part is the Benue State Local Government (Amendment) Law, 2012 for daring to conflict with the Constitution which is the grundnorm. The Benue State Local Government Law is an enactment of the State House of Assembly whilst the Constitution is a product of the National Assembly and by virtue of Section 1(3) of the Constitution: If any Law is inconsistent with the provisions of the Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void. Having found the provisions of the Benue State Local Government (Amendment) Law (supra) to be inconsistent and in conflict with the intendment and spirit of the Constitution, the said law is thereby null, void and of no effect. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

INTERPRETATION OF SECTION 11(1)(B) OF THE INTERPRETATION ACT CAP 123. LAWS OF THE FEDERATION OF NIGERIA, 2004 AS TO WHETHER ANYONE WITH THE POWER TO APPOINT ALSO RESERVES THE POWER TO REMOVE.

… it is settled law that anyone with the power to appoint also reserves the power to remove. See Section 11(1)(b) of the Interpretation Act Cap 123. Laws of the Federation of Nigeria, 2004 which provides as follows: 11(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes: (a) … (b) Power to remove or suspend him…… See also the Supreme Court decision in Okomu Oil Palm Company Limited vs. Iserheinrhien (2001) FWLR 670 @ 689, paras. C-D, where it was held that: The power to appoint includes the power to remove so that even where the power to appoint is silent as to the power to remove; this will be implied in virtue of Section 11(1) (b) of the Interpretation Act Cap. 192, Laws of the Federation, 1990. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is a fall out from the judgment of the High Court of Benue State, sitting at Gboko (hereinafter to be known as the lower/trial Court), presided over by Hon. Justice A. K. Baaki, J., and delivered 24th July, 2015.

BRIEF FACTS LEADING TO THE APPEAL
The appellants herein who at the lower Court were the 6th, 18th, 7th, 9th, 2nd, 8th, 10th, 14th, 17th, 23rd, 20th, 19th and 12th plaintiffs respectively, by way of an Originating Summons issued 8th June, 2015 and brought pursuant to Order 2 Rules (6) and (8) of the Benue State High Court (Civil Procedure) Rules, 2007 sought the determination of the following issues against the defendants who herein are the respondents:
1. Whether by virtue of the provisions of Section 2(b) of the Benue State Local Government (Amendment Law) 2012, the plaintiffs, as Chairmen and Members of the Interim Councils in Benue State set up in accordance with Section 21(1) and (2) of the Benue State Local Government Law, 2007 can be prevented by the 1st defendant from serving for the statutory period of six (6) months, the said interim council

having being so appointed to serve since the 8th day of April, 2015.
2. Whether the converse actions of the 1st defendant by intending to truncate the plaintiffs’ unexpired tenure, is not inconsistent with the spirit and intendment of the law fixing the plaintiffs with six (6) months tenured appointment.
3. Whether by the effect of Section 21(1) and (2) of the Benue State Local Government Law, 2007, read with Section 2(b) of the Benue State Local Government (Amendment) Law, 2012, the 1st defendant is not in breach of the said provisions having undertaken, with impunity, to abridge the plaintiffs’ unexpired tenure, without regard to due process and the law.
And in consideration of the following reliefs:-
1. A declaration that, by virtue of the provisions of Section 2(b) of the Benue State Local Government (Amendment) Law, 2012, the plaintiffs as Chairmen and members of the interim councils in Benue State set up in accordance with Section 21(1) and (2) of the Benue State Local Government Law, 2007, cannot be prevented by the 1st defendant from serving for the statutory period of six (6) months, the said interim councils having

been so appointed to serve since the 8th day of April, 2015.
2. A declaration that, the converse actions of the 1st defendant by intending to truncate the plaintiffs’ unexpired tenure, is inconsistent with the spirit and intendment of the law fixing the plaintiffs with six (6) months tenured appointment.
3. A declaration that by the effect of Section 21(1) and (2) of the Benue State Local Government (Amendment) Law, 2012, the 1st defendant is in breach of the said provisions having undertaken with impunity to abridge the plaintiffs’ unexpired tenure, without regard to due process and the law.
4. An order restraining the 1st defendant from constituting or attempting to constitute another body of interim councils, in whatever guise or form, to take over from plaintiffs, the plaintiffs’ tenure still running.
5. An order nullifying the 1st defendant’s decision undertaking to dissolve the plaintiffs’ interim councils much before expiration of plaintiffs’ tenure of office created by instrument of their appointment.
6. An order setting aside the 1st defendant’s decision to dissolve the plaintiffs, the

said executive decision being hasty, reckless, illegal, null, void and of no effect.
7. An order restoring the plaintiffs’ appointment, if at all dissolved, to run full course of the statutory tenure of six (6) months, as provided by the law. [See pages 7 – 9 of the record of appeal].

In support of the Originating Summons is an affidavit of six (6) paragraphs deposed to by one Terzungwe Azua, a Litigation Secretary and the plaintiffs’ written address. In response to the Originating Summons, the defendants filed a 1ST and 2ND Defendants’ Joint Counter Affidavit of seven (7) paragraphs deposed to by one Lawrence Akor, Assistant Chief Registrar and their written address in opposition.

Upon due consideration of the application as well as the affidavit and counter affidavit evidence and the respective written addresses of counsel, the learned trial Judge in his judgment delivered 24th July, 2015, dismissed the plaintiffs’ case for lacking in merit. (See pages 86 – 94 of the record of appeal). Consequently, the 6th, 18th, 7th, 9th, 2nd, 8th, 10th, 14th, 17th, 23rd, 20th, 19th and 12th plaintiffs, who before us

constitute the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th appellants respectively and who felt aggrieved by the judgment, filed a Notice of Appeal on 15th October, 2015 challenging the judgment. (See pages 95 – 100 of the record of appeal).

In compliance with the rules and practice of this Court, parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument dated and filed 23rd December, 2015, was settled by A. A. Aboh, Esq., while the Amended Respondents’ Brief of Argument dated and filed out of time on 11th February, 2019 but deemed properly filed 19th January, 2021, was settled by M. I. Fiase, Esq. The respondents further filed a Notice of Preliminary Objection Pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011, on 17th October, 2016 and the preliminary objection was argued at paragraph 4.01 on pages 4 – 5 of their amended brief of argument.

The appellants distilled the following three (3) issues for determination of the appeal:
I. Whether the appointment of the Appellants was made in violation of the Constitution. (Ground 1).
II. Whether the Appellants

as Caretaker Chairmen had no proprietary interest in their appointments. (Ground 2).
III. Whether or not the Respondents were right to truncate the tenure of the Appellants without just cause only to appoint another Caretaker Chairmen in place of the Appellants. (Ground 3).

The respondents on their part donated the following four (4) issues as apt for the determination of the appeal:
1. Whether or not from the facts contained in the printed Record of Appeal and applicable laws, this Appeal is competent?
2. Whether or not the provisions of Section 21(1) (2) of the Local Government Law, 2007 red (sic) along Section 2(a) (b) of the Local Government (Amendment) Law, 2012 which gives room for the setting up of Chairman and Members of the Interim Council in the Local Government is inconsistent with the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 hence Appellants’ appointment as Caretaker Chairman violate the Constitution?
3. Whether or not the learned trial Judge decided rightly when he resolved that Appellants as Caretaker Chairman of their respective Local Government Councils had no

proprietary interest in their appointments or legal rights under such appointment to be protected nor have the right of action to challenge the dissolution of their appointment?
4. Whether or not Respondents had the right to dissolve the appointments of Appellants as Caretaker Chairmen as it were on the 3/6/2015?

Before I wade into the appeal proper, if need be, I deem it unavoidable to first of all deal with the preliminary objection raised by the respondents.

PRELIMINARY OBJECTION
The respondents’ objections include:
1. That the Appeal filed by the Appellants dated the 15th day of October, 2015 is incompetent before this Honourable Court and should be struck out.
2. That the Briefs (sic) of Argument filed 23rd day of December, 2015 by the Appellants before this Honourable Court is incompetent and should be struck out.
The grounds for the objections are as follows:
1. Appellants did not include all the names of the Plaintiffs who filed the suit No GHC/15/2015 at the lower Court in their Grounds of Appeal filed before this Honurable Court.
2. Appellants did not include all the names of the Plaintiffs who filed

the suit No. GHC/15/2015 at the lower Court in their Brief of Argument filed before this Honourable Court.
3. The Appellants did not seek or obtained (sic) leave of this Honourable Court to file both their Grounds of Appeal and Briefs (sic) of Argument before this Honourable Court without including all the names of the Plaintiffs on the face of the Originating Summons in suit No. GHC/15/2015 filed at the lower Courts (sic).
4. The Appellants did not comply with the provisions of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011.

Arising from the reliefs sought in the preliminary objection and the grounds for seeking them, the respondents formulated their issue 1 (one) to wit: whether or not from the facts contained in the printed Record of Appeal and applicable laws, this Appeal is competent?

In arguing the issue, the learned counsel for the respondents/objectors submitted that the grounds of the appeal do not meet the requirement of the Law, in that they bear only thirteen (13) appellants on its face whereas twenty-three (23) plaintiffs sued in suit No. GHC/15/2015 at the lower Court. Respondents/objectors also contended that the

grounds of appeal do not comply with the mandatory statutory requirement of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011. See the authorities of Appeal No. CA/MK/EPT/34/2011 (an unreported decision of this Court delivered 2nd March, 2012) Between Joseph I. Akaagerger & Anor. vs. B. I. Gemade & 2 Ors., Nwaeze vs. Eze (1999) 3 NWLR Pt. 595, pg. 410, 418; Petgas Res. Ltd. vs. Mbanefo (2017) 274 LRCN, 119 at 136, paras. A-Z and 141; FRN. vs. Tawakalitu (2013) 223 LRCN Pt. 2, pg. 30, 42, 44; and Att-Gen., Anambra State vs. Okeke (2002) 12 NWLR Pt. 782, pg. 575, 594.
The appellants did not see the need to respond to the preliminary objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
Now, as to the shortfall in number of the parties that is the plaintiffs at the lower Court, vis-a-vis those of them who are now before us as appellants, I need to state that parties in civil proceedings do not go on appeal just for the fun of it. Only parties who feel aggrieved and see the need or are desirous so to do, go on appeal after a judgment is given against them. There are however, those who may not be keen to appeal against the vexed

judgment, irrespective of their loss – such parties are exempted from so appealing. The right to appeal to my mind, is a personal right and as such can be waived by the party or parties concerned. The Supreme Court had no doubt held that the right of appeal is a Constitutional right exercisable by a party in a civil suit. See Eyesan vs. Sanusi (1984) 4 SC U5 at 136, (1984) 1 SCNLR 253. Thus, whether the plaintiff or the defendant or the applicant or petitioner and the respondent in civil proceedings, all such parties are imbued with the right of appeal. By necessary extension of the rule therefore, the parties in an action or any other person named in the record could appeal. A non-party not named in the record but having an interest in the matter must apply for leave of Court in order to appeal. However, the important point to note is that the party appealing must have been aggrieved by the decision, as a party cannot appeal against a decision in his favour. A person may be a party to a suit but may not be interested in appealing a decision of the lower Court that went against him, such a person cannot in the circumstance be yoked with other

parties who are desirous to appeal. This is to say that he may not be in the quest to appeal. His non-appealing cannot result in a foreclosure on the part of any of the other parties in the suit to appeal.
By the provisions of Section 243 (1)(a) of the 1999 Constitution (as amended):
Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be–
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, …
It must be noted that the foregoing provision applies to an aggrieved person with the intention to appeal. By the extant Rules of this Court, an appellant means any person who appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf. He is the one who opposes the ruling or judgment of the Court below. See Ichu vs. lbezue (1999) 2 NWLR Pt. 591, pg. 437. Once a party is

unperturbed by a judgment he lost in and therefore not minded to appeal, such a party cannot be forced to appeal against same. See also the authorities of IGP vs. Mobil Producing (Nig.) Unltd. (2018) LPELR-44356(SC); Fawehinmi vs. Akilu (1987) NSCC 1265 at 1289; Dairo vs. Gbadamosi in Re – Afolabi (1987) 4 NWLR Pt. 63, pg. 18; Mobil Producing Nigeria Unlimited vs. Monokpo (2003) 12 SC Pt. 11, pg.50 at Pp 66-67; Prof. Awojobi vs. Dr. Ogbemudia (1983) 8 SC 92; and Akinbiyi vs. Adelabu (1956) SCNLR 109.
The objection of the respondents to the effect that the grounds of appeal do not meet the requirement of the law in that not all the parties who lost the action at the lower Court are now before this Court on appeal, lacks backing and is therefore unsustainable in the circumstance.
Coming to Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 (being the Rule in force then), it is provided therein that:
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or

part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
The appellants herein fully complied with the above stated provisions of this Court in filing their Notice of Appeal. The lone issue donated by the respondents for the determination of the preliminary objection, which is whether or not from the facts contained in the printed Record of Appeal and applicable laws, this appeal is competent, is thus answered in the affirmative. This is to say that the appeal is competent before this Court. The issue is resolved against the respondents and in favour of the appellants.

Accordingly, the respondents’ Notice of Preliminary Objection dated 14th October, 2016 and filed 17th October, 2016 is dismissed for lacking merit.
I now go to the appeal proper.

The issues as donated by both sides are similar in every

material respect. I shall however, adopt those of the appellants and they are so adopted in determining the appeal.

ISSUE 1 (ONE)
Whether the appointment of the Appellants was made in violation of the Constitution.
The appellants herein submitted that the Benue State Local Government Law, 2007 and 2012 were enacted pursuant to the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria. Appellants contended that the Laws in taking care of emergency situations which make it impracticable to conduct an election into the Local Government Councils, created the offices of the appellants in Section 21(1) and (2) of the 2007 Law.

The respondents on their side are saying that the provisions of the Benue State Local Government Laws which put the appellants in place are not in consonance with Section 7(1) of the Constitution and to that extent are illegal. See Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, Dogari vs. Att-Gen.,Taraba State (2011) All FWLR Pt. 603, pg. 1926 at 1974 – 1975; G. D. Akpan vs. Umah (2002) FWLR Pt. 110, pg. 1820; Akpan vs. Att-Gen., Cross River State (1982) 3 FRN

177; Att-Gen., Plateau State vs. Goyol (2007) 57 (?); and Governor, Akwa Ibom State vs. Umah (2002) (?) Pt. 118, pg. 1793 at 1815, paras. E-G.

Learned counsel for the respondents further submitted that a community reading of Section 21(1), (2) Benue State Local Government Law, 2007 and Section 2 (a), (b) of the Benue State Local Government (Amendment) Law, 2012 of one hand and Section 7(1) of the Constitution on the other hand shows that the legislations are antagonistic. See also Section 4(5) of the Constitution.

RESOLUTION OF ISSUE 1 (ONE)
Under Section 7(1) of the Constitution of the Federal Republic of Nigeria, as amended (hereinafter the Constitution) which provides for Local Government System, it is stipulated that:
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.
From the foregoing, it is clear that the foremost

legislation of the land, contemplates a democratically elected Local Government Councils as opposed to appointed or selected and hand-picked members of Local Government Councils. It was consequent upon this constitutional provision, that the Benue State House of Assembly enacted their Local Government Council Law, 2007 which law was later amended by the Local Government (Amendment) Law, 2012 which in turn made provision for the tenure of Chairmen and Members of Councils as follows:
2. The Local Government Law No. 4 of 2007 (hereinafter called the Principal Law) is hereby amended in the following respects:
a) …
b) By the deletion of Section 21(3) and the substitution therefor of a new Section 21(3) as follows-
“(3) Chairman and Members of the Interim Council set up in accordance with Sub-sections (1) and (2) of this section shall serve for a period of six months at the first instance and may be re-appointed for another period not exceeding six months”.
Contrary to the clear intendment of Section 7 of the Constitution which provided for the establishment of a “democratically elected” Chairmen and Members for

the Local Government Councils, the Benue State House of Assembly by their enactment of the Local Government (Amendment) Law (supra), made provision for “appointment” and “re-appointment” of Chairmen and Members of “Interim Council”. It is obvious that by the Law, the Benue State Government has tried to circumvent the enabling and supreme Law of the land. However, this posture is implausible and unsustainable given the provisions of Section 1(3) of the Constitution supra wherein it is stipulated that:
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.
See also the authorities of Dogari vs. Att-Gen., Taraba State (2011) All FWLR Pt. 603, pg. 1926, 1974 – 1975, paras G-D; Akpan vs. Umah (2002) 7 NWLR Pt. 767, pg. 701; Akpan vs. Att-Gen., Akinpelu vs. Att-Gen., Oyo State (1982) 2 FNR 428; and Governor, Akwa Ibom State vs. Umah (2002) 7 NWLR Pt. 767, pg. 738, 772, paras. E-H, where this Court on the question whether House of Assembly of a State can make law for dissolution of Local

Government and for bye election, – held as follows:
It is true that the word “dissolution” is missing in the provision of Section 7(1) of the 1999 Constitution set out above but the House of Assembly that has the powers to make laws to regulate the affairs of a Local Government Council, that is, for establishment, structure, composition, etc. of such council can make a law for dissolution of an erring Local Government Council and for a bye-election if not there will be chaos and disorder; guaranteeing the system of Local Government by democratically elected Local Government Council under the Constitution means that the Local Government Council must be a democratically elected one and if a Local Government Council is dissolved and a bye-election is ordered, that is quite in order. It will be otherwise if the local government is dissolved and a Caretaker Committee is appointed in its place. It therefore follows that a Governor or Chief Executive of a State can act on a law validly made under Section 7(1) of the 1999 Constitution…
In the event of a community reading of the provisions of

Sections 2(a) and (b) and 21(1) and (2) of the Benue State Local Government (Amendment) Law, 2012 on the one part and Section 7(1) of the Constitution on the other part, it will be clear that they are devoid of synchronization. Being in conflict with each other therefore, it follows that one part has to give way for the other and that part is the Benue State Local Government (Amendment) Law, 2012 for daring to conflict with the Constitution which is the grundnorm. The Benue State Local Government Law is an enactment of the State House of Assembly whilst the Constitution is a product of the National Assembly and by virtue of Section 1(3) of the Constitution:
If any Law is inconsistent with the provisions of the Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.
Having found the provisions of the Benue State Local Government (Amendment) Law (supra) to be inconsistent and in conflict with the intendment and spirit of the Constitution, the said law is thereby null, void and of no effect. By and large, the question whether the appointment of the appellants made pursuant to the Benue State Local Government (Amendment) Law, was made in

violation of the Constitution, is hereby answered in the affirmative. The appointment which is null and void is therefore of no effect. Issue 1 (one) is resolved in favour of the respondents and against the appellants.

ISSUE 2 (TWO)
Whether the Appellants as Caretaker Chairmen had no proprietary interest in their appointments.
Because the appellants were appointed pursuant to the provision of Section 21(1), (2) and(3) of the Benue State Local Government (Amendment) Law, which is already voided in this appeal, it follows that the appellants whose purported appointments were made pursuant to the said law, were not vested with any proprietary interest or right. The letters of appointment issued to the respective appellants, are more or less worthless pieces of paper as there was no valid contract between them and their purported appointers. The case of Akinedo vs. Edo State Government (2012) 7 WRN pg. 64 at 83-83, relied upon by the appellants, is distinguishable and as such inapplicable in the circumstances. The appellants as Caretaker Chairmen, derived no proprietary interest from the respective appointments and as such had no interest to

protect. Issue 2 (two) is resolved in favour of the respondents and against the appellants.

ISSUE 3 (THREE)
Whether or not the Respondents were right to truncate the tenure of the Appellants without just cause only to appoint another Caretaker Chairmen in place of the Appellants.
Notwithstanding the fact that the purported appointments foisted a six-month tenure in office on each of the appellants, yet the appointments lacked the necessary legal backing given that they were not democratically elected. The invalid contract between the appellants and the respondents is thus unenforceable. This is to say that it lacked statutory flavour. The appointment is akin to a Greek gift whereby the giver would give with the left hand only to take it back with the right hand and vice versa. As rightly submitted by the learned counsel for the respondents, the appointments of the appellants were at the pleasure of the respondents and the respondents could as well, fire the appellants at their pleasure. Moreover, it is settled law that anyone with the power to appoint also reserves the power to remove.

See Section 11(1)(b) of the Interpretation Act Cap 123. Laws of the Federation of Nigeria, 2004 which provides as follows:
11(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:
(a) …
(b) Power to remove or suspend him……
See also the Supreme Court decision in Okomu Oil Palm Company Limited vs. Iserheinrhien (2001) FWLR 670 @ 689, paras. C-D, where it was held that:
The power to appoint includes the power to remove so that even where the power to appoint is silent as to the power to remove; this will be implied in virtue of Section 11(1) (b) of the Interpretation Act Cap. 192, Laws of the Federation, 1990.
Being that the appellants’ appointments were dead on arrival, there was nothing for the respondents to truncate, save to withdraw and give the dead appointments the burial they deserved. I dare add that whether the respondents appointed another Caretaker Chairmen to replace the appellants, is of no moment here. Issue 3 (three) is in the premises resolved in favour of the respondents and against the appellants.

Having resolved the 3 (three)

issues for determination of the appeal in favour of the respondents and against the appellants, it follows that the appeal is unmeritorious. The appeal in the circumstances is dismissed, while the judgment of the lower Court per Hon. Justice A. K. Baaki, J., in suit No. GHC/15/2015, delivered 24th July, 2015 is affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice C. Ifeoma Jombo-Ofo, JCA. I agree with the reasoning and conclusions reached in the lead Judgment.

The learned Counsel to the Appellants hinged their argument on the Law made by the Benue State House Assembly, namely “Benue State Local Government Law, 2007” pursuant to Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) which created the Offices of the Appellants in Section 21(1) and (2) of the 2007 Law which is inconsistent with provisions of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) being the Grundnorm or Supreme Law of the land. Section 1 (1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) provide thus:-

“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.”
In Abacha vs. Fawehinmi (2000) FWLR 533 at page 612; the Supreme Court stated clearly the supremacy of the Constitution as follows:
“The Constitution is the Supreme law of the land; it is the grundnorm. Its supremacy has never been called to question in Ordinary circumstances. For avoidance of doubt, the 1979 Constitution stated categorically in its Chapter 1, Section 1(1) as follows: 1(1) “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federation Republic of Nigeria.” For purposes of clarity, its Section 1(3) goes

further to state: 1(3) “If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and other law shall to the extent of the inconsistency be void.”
See also Nwankwo vs. The State (1985) NCLR 228 at 237; Tony Momoh vs. Senate (1981) 1 NCLR 337; Chike Obi vs. DPP (1961) 1 NLR, NCLR 293 at 326; Wallace-Johnson vs. The King (1940) A.C. 231; Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 6 SC 158 per Nnamani, JSC; Ariori & Ors. vs. Elemo & Ors.(1983) All NLR 1 at 19 per Eso, JSC.

The arguments of learned Counsel to the Appellants on both Issues 1 (One) and 2 (Two) are whether the Caretaker Chairmen had no proprietary interest in their appointment and whether or not the Respondents were right to truncate the tenure of the Appellants without just cause only to appoint another Caretaker Chairmen in place of the Appellants.
In Ladoja vs. INEC (2007) 12 NWLR (Pt.1047) 119 at pages 168- 169 paragraphs “E”-“B”, Ogundare, JSC held that:
“It is settled law, that when an act is declared null and void, the position is that from the angle of the law, the act never took place.

It is completely wiped off and considered as extinct and deemed never to have existed.”
In Adefulu vs. Okulaja (1996) 9 NWLR (Pt.475) 668 at 693, Ogundare, JSC again held that:
“…When an appointment is declared null and void, all it means is that the appointment was never made and all acts of the purported appointee when he defacto held the appointment are unlawful, null and void and of no effect. The result of a decree of nullity of marriage is that not only are the parties not now married but they never were” per Russell, J. In Re Wombwell’s Settlement (1922) 2 C.D. 298 at p.305. As it was put in an American case, Zogby vs. State 53 Misc. 2d 740; 279 NYS 2d 665; 668:
” “Null and void’ means that which binds no one or is incapable of giving rise to any rights or obligations under any circumstances, or that which is of no effect.”
By the judgment of the Court of Appeal in 1987, and affirmed by the Supreme Court in 1989, declaring the 1981 appointment of the 1st appellant null and void, the appointment had no force or effect; it had no legal efficacy and became incapable of confirmation or ratification. It is not merely voidable

but void ab initio that, from its beginning. A nullified appointment cannot in my respectful view, be a legal foundation upon which any lawful right could be hoisted. It may, however, be that the doctrine of necessity or implied mandate may apply to give validity to some acts of a usurper during the period of his de facto control of the office, that issue will only come up for consideration when the validity of his acts is called into question. That is not the case here and I express no opinion on it. I think it rather unwise to go into that issue in the present proceedings, for it does not arise. Much is entailed in determining the validity of acts of a usurper committed or performed when in de facto control of the office he has usurped. The person whose appointment is declared to be null and void is no more than a usurper during the time he de facto held that office. The nullification of the appointment of the 1st defendant by the judgment of the Court of Appeal and that of the Supreme Court relates back to the time the appointment was made in 1981 and approval given by the Governor of Ogun State and the vacancy he purported filled by that supposed,

pretended, attempted or unlawful appointment remained intact.”
In Mcfoy vs. United Africa Co. Ltd. (1961) 3 All E.R. 1169, Lord Denning held at page 1 172 that:
“…If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.”
See also Akinfolarin vs. Akinnola (1994) 4 SCNJ (Pt. 1) 30 at 48- 49; Aladegbemi vs. Fasanmade (1988) 3 NWLR (Pt.81) 129; Rossek vs. ACB Ltd. (1993) 8 NWLR (Pt.312) 382.
In my humble view, by virtue of Section 7(1) of the 1999 Constitution of the Federal Republic of Nigeria, the system of Local Government by democratically elected Local Government Councils is under the 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 for the establishment, structure, composition, finance and functions of such Councils.
The Appellants have not established that there was a substantial wrong or miscarriage of justice in the Court below which warrants this Court to interfere with the verdict of the learned Trial Judge rendered in favour of the Respondents. The decision of the Lower Court stands. The proper order to make is to dismiss this Appeal and affirm the Decision of the learned Trial Judge, Hon. Justice A.K. Baaki, J. (as he then was) delivered on the 24th day of July, 2015. I so hold in concurrence with the Lead Judgment of my learned brother.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, JCA and I am in complete agreement with the reasoning and resolution arrived at in the lead judgment. My lord has succinctly resolved the issues donated for determination and I have nothing more to add.
I also dismiss the appeal for lacking in merit and affirm the judgment of the trial Court.

Appearances:

P. Nyiayem, Esq. For Appellant(s)

I. Fiase, Esq. Chief State Counsel, Ministry of Justice, Benue State For Respondent(s)