HON. CHIGOZIE EZE & ORS. V. GOVERNOR OF ABIA STATE & ORS. (2010)

HON. CHIGOZIE EZE & ORS. V. GOVERNOR OF ABIA STATE & ORS.

(2010)LCN/4191(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of April, 2010

CA/PH/626/2008

RATIO

CONSTITUTIONAL PROVISIONS: CONSEQUENCE OF THE FAILURE TO FOLLOW THE PROVISIONS OF THE CONSTITUTION

The basic law of Nigeria is the Constitution of the Federal Republic of Nigeria 1999 and its provision makes it supreme so that failure to follow its provisions renders whatever was done contrary to it unconstitutional. See Adediran vs. Kinterland Transport Ltd. (1999) 9 NWLR (Pt.214) 155 at 179;Erekanure vs. The State (1993) 5 NWLR (Pt. 244) 385 at 393. Also, the provision of the Constitution are superior to every provision made in any Act or Law and are binding on and must be respected by all persons and authorities in Nigeria. Adiza vs. Oyinwola (2000) 1 NWLR (Pt.674) 116, A.G. Abia State vs. A.G. Federation (2002) 6 NWLR (Pt.763) 264 at 479, Musa vs. I.N.E.C. (2002) 11 NWLR (Pt. 778) 223 at 292. PER MOJEED ADEKUNLE OWOADE, J.C.A.

SUPREMACY OF THE CONSTITUTION: WHETHER ANY ANY LAW INCONSISTENT WITH THE CONSTITUTION IS VOID TO THE EXTENT OF SUCH INCONSISTENCY

RIGHTS OF PARTIES: ON WHAT BASIS ARE THE RIGHTS OF PARTIES IN AN ISSUE IN LITIGATION DECIDED ON

And it is the fundamental principle of Nigerian Law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question Aremo II vs. Adekanye & 2 Ors. (supra). PER MOJEED ADEKUNLE OWOADE, J.C.A.

RETROACTIVE LEGISLATION: WHETHER A RETROACTIVE LEGISLATION IS UNCONSTITUTIONAL

My humble view of the law is that by virtue of S.6(1) of the Interpretation Act which is part of the constitutional provisions retrospectivity must not be implied into an Act to affect vested rights unless expressly provided for in the statute. Exceptions are purely procedural legislations which immediately affect all matters pending in court. It is not my contention that a retroactive law per se is unconstitutional in respect of civil matters. See CHIGBU v. TONIMAS (2006) 4 SCNJ 262 at Pg. 274 and see Niki Tobi JSC in HRH FESTUS IBIDAPO ADESANOYE & 2 ORS v. PRINCE GBADEBO ADEWOLE (2006) 7 SCNJ Pg. 501 at 517 and 534-535 where His Lordship who wrote the lead judgment held as follows: “Retrospectivity, the synonym of retroactivity, as it relates to statutes, means when the date of commencement of the statute is earlier in point of time than the date of enactment. See AFOLABI v. GOVERNOR OF OYO STATE (1985) 2 NWLR Pt. 9 Pg. 734. In other words, where a statute extends it scope or effect to matters that have occurred in the past, such a statute is said to have retrospective effect. A statute having a retrospective effect takes care of past matters in the sense that it draws forward such matters to have legislative effect with all the currency of the new statue. While courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence. This is because the Legislatures have the constitutional right to enact a statute and make it apply retrospectively. In so far as such a statute is donated by section 4 of the Constitution, courts of law do not have the jurisdiction to question the vires of the statute. See ADESANOYE v. ADEWOLE (2002) 9 NWLR Pt.671 Pg. 127.” S. 4(9) of the 1999 Constitution prohibits the enactment of retrospective legislation only in relation to criminal offences. What I am saying here is that the law itself is not invalid as the legislature the House of Assembly can make retroactive laws. In A.G. ABIA STATE & 33 ORS. v. A.G. FED. (2002) 3 SCNJ 158 the Supreme Court held that it is only laws outside the legislative competence of a legislative body that can be declared unconstitutional null and void. It is not the best, it may not be morally right but it is not ultra vires the Constitution. However, before retrospectivity can be read into law, it must be shown clearly that the legislature intended to abrogate existing vested rights. The presumption is that the legislature would not perpetrate injustice by abrogating existing vested rights. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

Before Their Lordships

ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

Between

HON. CHIGOZIE EZE & 147 ORS.Appellant(s)

AND

1. GOVERNOR OF ABIA STATE
2. ATTORNEY GENERAL OF ABIA STATE
3. ABIA STATE HOUSE OF ASSEMBLYRespondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of S.N. Imo, Chief Judge of Abia State delivered on 10/10/07 in Umuahia in the Umuahia Judicial Division of the High Court of Abia State.
On 12th September, 2006, the plaintiffs by originating summons sued the defendants/respondents asking for the determination of four (4) questions and sought six (6) reliefs. Leave of the trial court was later sought and granted to amend the originating ‘summons’ earlier filed by the plaintiffs. The 1st appellant and Mrs. Ijeoma Onyekwere Ujoumunna were the plaintiffs in the lower court. Only the 1st appellant filed a Notice of Appeal to this court. The 2nd to the 147th appellants brought a motion to this court to be joined as interested parties and the order was so granted. Hence the present number of appellants. The questions for determination in the Amended Originating Summons were as follows:
“(a) Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria and the provisions of the Abia State Local Government Law as amended, the 1st defendant has the legal competence to dissolve the Local Government Councils of Abia State and appoint Caretaker Committees to replace elected members of the said Local Government Council.
(b) Whether given the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, sections 19(3) and 25 of the Abia State of Nigeria Local Government Law, No. 5 of 1999 and sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004 the tenure of both the Chairman and Vice Chairman as well as the Councilors is three (3) years or two (2) years.
(c) Whether the tenure of the Chairman and the Vice Chairman as well as councillors elected sometime in March 2004 and sworn in sometime in June 2004 will be regulated by the provisions of the Abia State Local Government (Third Amendment) law, 2004 which was passed sometime in September 2004′ and assented to sometime in October 2004 but was made retroactive and came into effect on the 11th March, 2004 or the provisions of sections 19(3) and 25 of the Abia State of Nigeria Local Government Law, No.5 of 1999 which was the law in force that regulated’ the conduct of the election of the plaintiffs as well as regulated their tenure.
(d) Whether given the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, sections’ 19(3) and 25 of the Abia State of Nigeria Local Government Law, No. 5 of 1999 and sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004 the tenure of the plaintiffs as elected councilors will commence from the date of their swearing in or the date of their judgments or the date of the bye election respectively.”
The plaintiffs/appellants in the said Amended Originating Summons sought the following reliefs:
“1. A declaration that the 1st plaintiff was elected for the first time on the 14th December, 2005 and took the oath of office on the 14th day of January, 2006, while the 2nd plaintiff was returned on the 25thday of April, 2005 and took the oath of office on the 17th day of May, 2005.
2. A declaration that the tenure of the currently elected members of the Local Government Councils of Abia State is regulated by the provisions of section 25 of the Abia State of Nigeria Local Government Law, NO.5 of 1999 and not sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004.
3. A declaration that the tenure of the 1st plaintiff as an elected councilor of the Aba South Local Government Council started running from the date she took the oath of office which is the 18th day of January, 2006 while the tenure of the 2nd plaintiff as an elected councillor of the Aba South Local Government Council started running from the date he took the oath of office which is the 17th day of May, 2005.
4. A declaration that the 1st defendant or any of its agents lack the legal competence to dissolve the elected council of the Local Government Councils of Abia State and appoint Caretaker Committees or Transition Committees.
5. A declaration that the dissolution of the elected Chairman, Vice Chairman and Councillors of the Local government Councls of Abia State and the appointment of the 4th – 7th defendants and other persons as chairmen and members of Transition Committees of the Local Government Councils by the 1st defendant are illegal, ultra vires, null and void and of no effect whatsoever.
6. An order dissolving the appointment of the 4th – 7th defendants and other persons appointed as Chairman and members of Transition Committees of Caretaker Committees of the Local Government Councils of Abia State.
7. A declaration that as at the date of dissolution of the Local Government Councils in Abia State by the 1st defendant, the 1st and 2nd plaintiffs had a 17 (seventeen) and 11 months residue of their tenures respectively if the court holds that the plaintiffs are running a 2 (two) years tenure, 29 (twenty-nine) and 23 (twenty-three) months residue of their tenures respectively if the court holds that the plaintiffs are running a 3 (three) years tenure.
8. An order compelling the 151 defendant to reinstate the plaintiffs as councillors of Aba South Local Government Council to complete the residues of their respective tenures.”
Written Addresses were filed and exchanged by the parties before the lower court and on the 10th day of October, 2007, the learned Chief Judge of Abia State, S. N. Imo J., in a considered judgment granted the plaintiffs’ reliefs Nos. 1 and 3 but refused plaintiffs’ reliefs Nos. 2, 4, 5, 6 and 7 as the learned trial Judge held generally that the applicable law which governed the tenure of the plaintiffs as elected councillors are sections 4 and 5 of the Abia state Local Government (Third Amendment) Law, 2004 which fixed the tenure of elected Councillors at 2 years and not the provisions of section 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999 which fixed the tenure of the plaintiffs at 3 years notwithstanding the fact that the Abia State Local Government (Third Amendment) Law, 2004 is a retrospective legislation.
Dissatisfied with this judgment, the plaintiff/appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on Jed January, 2008.
The Appellants formulated four (4) issues for determination as follows:
1. Whether the law made by the 3rd respondent empowering the 1st respondent to truncate a democratically elected Local Government Council and the 1st respondent truncating a democratically elected Local Government Council pursuant to the said law is inconsistent with the provisions of section 1(2) and 7 of the Constitution of the Federal Republic of Nigeria and therefore void (Ground 1).
2. Whether the tenure of office of the Appellants will be regulated by the provisions of Section 19(3) and 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999 under which they were elected and sworn into office or the provisions of Section 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004, which was made to have a retrospective effect on the tenure of office of the Appellants’ (Ground 2).
3. Whether a retrospective law made by the 3rd respondent will affect a right acquired by the Appellants under a law they were elected and sworn into office (Ground 3).
4. Whether the learned trial Judge was right in his interpretation of S.4(9) of the Constitution of the Federal Republic of Nigeria 1999 and in refusing to grant reliefs 2, 4, 5, 6, 7, and 8 sought by the Appellants. (Ground 4)”.
The respondents adopted the issues formulated by the Appellants. On Issue No.1, learned counsel for the Appellants re-echoed the supremacy of the Constitution of the Federal Republic of Nigeria 1999 as the organic law by which all levels of government are bound and have a duty to ensure its enforcement. Learned Counsel for the Appellants relied on the provision of Sections 1(1), 1(2) and 1(3)( of the 1999 Constitution and the cases of Adeleke & Ors. vs. O.S.H.A. & 18 Ors. (2006) 16 NWLR (Pt. 1006) page 608, Bayo vs. Njidda & 59 Ors. (2004) 8 NWLR (Pt.876) pages 544, 565, ANPP & 2 Ors. vs. B.S.I.E.C. & 5 Ors. (2006) NWLR (Pt.992) 585 at 545 and Aremo II vs. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 841) pages 572 to make the point that no person or group of person shall take control of the government or any part thereof except in accordance with the provisions of the Constitution. And that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be null and void. Appellants’ counsel submitted that the Local Government Council of a State is the third tier of government and that by Section 7(1) of the Constitution, the system of Local Government by democratically elected Local Government Councils is guaranteed. Accordingly, said the Appellants’ Counsel, the power of the House of Assembly of a State to make laws for the peace, order and good government of the state or any part thereof under Section 4(7) of the said 1999 Constitution does not extend to truncate the tenure of a democratically elected Local Government Council in Section 7(1) of the Constitution. And that where as in the instant case, an amendment or a new law is made for the purposes of truncating democratically elected Local Government Council by abridging the tenure of office of serving Local Government Councils Chairmen, Vice Chairmen and Councillors and appointing a caretaker or transition committees in their stead is against the provision of 3.1(2) and 5.7(1) of the 1999 Constitution and therefore such laws are null and void to the extent of their inconsistencies.
On this, learned counsel for the appellants further relied on the case of A.G. of Plateau State & 23 Ors. vs. Hon. Goyol & 15 Ors, (2007) 16 NWLR (Pt.1059) P. 57 at 64. Learned counsel for the Appellants submitted further that the action of the 3rd respondent in the instant case amounted to aiding a civilian coup plotted and executed by the 1st respondent and such action is not only inconsistent with the provision of Section 1(2) of the Constitution but also against the oath of office of the 1st respondent.
Appellants’ counsel further relied on the cases of Akpan vs. Umah (2002) 7 NWLR (Pt.767) 701 at 730- 732 and A.G. Abia State & 2 Ors. vs. A.G. Federation & 33 Ors. (2006) 16 NWLR (Pt. 1005) p. 265 at 289 and submitted that the learned trial Judge erred in law when he held that the 3rd respondent can make any law in respect of the tenure of office of the appellants and that the 1st respondent has the legal competence to dissolve a democratically elected Local Government Council and appoint a caretaker committee in its stead.
Learned counsel for the respondents agreed with the submissions of the appellants’ counsel on issue No. 1, first on the supremacy of the constitution to the effect that any law that is inconsistent with the constitution is void to the extent of its inconsistency and specifically in relation to the instant case that where an amendment or a new law is made for the purposes of truncating democratically elected Local Government Councils by abridging the tenure of office of serving Local Government Councils’ chairmen vice chairmen and councilors and appointing a caretaker committee in their stead in against the provisions of sections 1(2) and 7(1) of the Constitution of the Federal Republic of Nigeria, 1999.
The supremacy and the binding force of the constitution of the Federal Republic of Nigeria 1999 represents the truism in the position taken by the appellants on issue No. 1. The basic law of Nigeria is the Constitution of the Federal Republic of Nigeria 1999 and its provision makes it supreme so that failure to follow its provisions renders whatever was done contrary to it unconstitutional. See Adediran vs. Kinterland Transport Ltd. (1999) 9 NWLR (Pt.214) 155 at 179; Erekanure vs. The State (1993) 5 NWLR (Pt. 244) 385 at 393. Also, the provision of the Constitution are superior to every provision made in any Act or Law and are binding on and must be respected by all persons and authorities in Nigeria. Adiza vs. Oyinwola (2000) 1 NWLR (Pt.674) 116, A.G. Abia State vs. A.G. Federation (2002) 6 NWLR (Pt.763) 264 at 479, Musa vs. I.N.E.C. (2002) 11 NWLR (Pt. 778) 223 at 292.

Furthermore, in a democratic system of government with a supreme Constitution, all laws flow from the Constitution and any law inconsistent with the Constitution is void to the extent of such inconsistency. Obaba vs. Military Government, Kwara State (1994) 4 NWLR (Pt.772) 222, A.G. Lagos State vs. A.G. Federation (2003) 12 NWLR (Pt.833) 1 at 119.
In the instant case, there is no gainsaying that the Abia State Government has a right under section 4(7) of the same Constitution to make laws for the peace, order and good government of the state or any part thereof and therefore the respondents in this case have the power to have passed into law the Abia State Local Government (Third Amendment) Law 2004, but to the extent that the provisions of the said law affected and/or truncated the tenure of a previously democratically elected council, such provisions or law would be contrary to clear wordings of section 7(1) and such provisions or law would to that extent be void.
Section 7(1) of the Constitution provides for and guarantees a system of Local Government by democratically elected councils as follows:
“7(1) The system of local government by democratically elected local government council 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.”
In the instant case, it is not in dispute that the appellants took their oath of office and were swore in by and under the provisions of the Abia State Local Government Law No. 5 of 1999 but suddenly and unfortunately the 3rd respondent passed the Abia State Local Government (Third Amendment) Law, 2004 and thereby purported to reduce the tenure of office of elected Councilors amongst others from three (3) years provided for under the 1999 Law to two (2) years as now contained in the Third Amendment Law passed in 2004.
In these circumstances, the learned counsel for the appellants was right to have argued in terms of issue No. 1 that the law made by the 3rd respondent empowering the 1st respondent to truncate a democratically elected Local Government Council and the 1st respondent’s truncating a democratically elected council pursuant to the said law is inconsistent with the provisions of Section 1(2) and 7 of the Constitution of the Federal Republic of Nigeria 1999 and therefore void.
The position of the law is well explained in the judgment of this Court per Ekpe, JCA in the case of Akpan vs. Umah (2002) 7 NWLR (Pt.767) 701 that:
“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 vs. A.G. Cross River State 1982, 2 FNR 177, see also, Akinpelu vs. A.G. Oyo State (1982) 2 FNR.
Also, in the case of A.G. of Plateau State & Ors. vs. Hon. Chief Anthony Goyol & Ors. (2007) 16 NWLR (Pt.1059) 57 at 94, Akaahs, JCA, who read the lead judgment of this court said as follows:
“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 power to make any 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 Local Government Council when the law under which the Local Government Council has been is amended or repealed.”
For the reasons stated above, issue No. 1 is resolved in favour of the Appellants.
On Issue No. 2, learned counsel for the appellants submitted that the tenure of office of the appellants is regulated by the provision of Section 19(3) and 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999 which is the law under which the appellants were elected and sworn into office and that the learned trial Judge erred in law when he held that sections 4 and 5 of Abia State (Third Amendment) Law, 2004 which ordinarily he would have struck down for inconsistency is the applicable law.
Appellants’ counsel reiterated the authority of A.G. Plateau State & Ors. vs. Hon. Goyol & Ors. (supra) and argued that any law which tinkers with the tenure of office of serving Local Government Council Chairman, Vice Chairmen and Councilors and thus truncate a democratically elected local government council is inconsistent with the provisions of S. 1(2) and 7(1) of the Constitution, void and ought to have been struck out by the learned trial Judge.
Learned counsel to the respondents also conceded issue No. 2 and added that the case of A.G. Plateau State & Ors. vs. Hon. Goyol & Ors. (supra) is an authority for the view that the House of Assembly can make laws for the peace, order and good governance of state but has no power under the Constitution to make any law which has the effect of annulling a vested right under on existing law. And that it was also held in the case of Governor of Akwa Ibom State vs. Umah (2002) 7 NWLR (Pt.767) 738 that the Local Government Law, 2004 cannot be construed to apply retrospectively to appellants whose vested rights for 3 years tenure under the 1999 law accrued in 2004 and preserved by the Interpretation Act.
In deciding Issue No. 2, I am again in agreement with both learned counsel in this case that the provisions of Sections 4 and 5 of the Abia State (Third Amendment) Law 2004 which was made to have retroactive effect in relation to the appellants tenure are void for being inconsistent with the provisions of Sections 1(2) and 7(1) of the 1999 Constitution and also inoperative as against the appellants because they took their tenure of office under the provisions of Sections 19(3) and 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999.
The Judgment of the Court of Appeal in the case of A.G. Plateau State vs. Goyol (supra) pages 96- 97 considered similar issues as the above at great length. The Court held in that case that the action of the Governor in dissolving the councils and proceeding to appoint caretaker committees have rendered his action unconstitutional. And that 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. And in the Goyol case, that 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 caretakers committee, it will still not alter the position because the parties have no power to contract out of the constitution.
I told therefore in terms of issue No. 2 that the tenure of office of the appellants shall be regulated by the provisions of Sections 19(3) and 25 of the State of Nigeria Local Government Law No. 5 of 1999 under which the appellants were elected and sworn into office and not the provisions of Sections 4 and 5 of the Abia State (Third Amendment) Law 2004 which was made to have a retroactive effect on the tenure of the appellants.
Issue No. 2 is resolved in favour of the Appellants.
On Issue No. 3, learned counsel for the appellants submitted that a retroactive law made by the 3rd respondent will not affect a right acquired by the appellant under a law, the appellants were elected and sworn into office. Appellants’ counsel submitted that the effect of Section 6(1)(c) of the Interpretation Act is that the three years tenure of the appellants as prescribed by the Abia State of Nigeria Local Government Law No. 5 of 1999 is preserved and remained intact and cannot be taken away by the provisions of Sections 4 and 5 of the Abia State (Third Amendment) Law, 2004.
On these appellants’ counsel referred to the cases of Akpan v. Umah (supra) and Governor of Akwa Ibom State vs. Umah (supra) and furthered that the fundamental principle of Nigerian Law is that the right of parties in an issue in litigation are decided on the basis of the substantive law in question. After referring to the cases of Aremo II vs. Adekanye & 22 Ors. (2004) 13 NWLR (Pt. 891) 572 and the case of A.G. Plateau State vs. Goyol (supra). Learned counsel for the appellants submitted that the learned trial Judge did not appreciate the contention of the appellants when he held at page 60 of the record of appeal that:
“There is no dispute that the legislature has the authority and competence to make retrospective legislation within the Constitution which allocated legislative function to it…”
The contention of the appellants, said counsel is not that the legislature cannot make a law, including a retrospective law but that such law cannot divest a vested right. Accordingly, said counsel, the learned trial Judge was in error when he held that the legislature can make a retrospective law and such retrospective law can divest a vested right under a repealed law.
Learned counsel for the appellants explained that the supreme court in the case of Adesanoye vs. Adewole (supra) classified retrospective legislation into three categories and that the statute in issue fall into the third category, that is, statute that attaches prejudicial consequences to prior, event, which is abhorrent in law.
He urged that issue No. 3 resolved in favour of the Appellants.
Learned counsel for the respondents concedes the arguments of the appellants on issue No. 3 and submitted that the Local Government (Third Amendment) Law 2004 cannot be rightly construed to apply retrospectively to the appellants whose vested rights for 3 years tenure under the 1999 law accrued in 2004 and preserved by section 6 of the Interpretation Act. On this, he also relied on the cases of Governor of Akwa Ibom State vs. Umah (supra) and A.G. of Plateau State vs. Goyol (supra).
Issue No. 3 deal with the belief of the learned trial Judge in the instant case that the exclusion of legislative powers to make retroactive laws is limited to criminal offences or criminal legislation, this according to the learned trial Judge by the application of the principle that the express mention of one thing precludes the operation of another “Expressio unius est exlusio alterius” in the construction of the provision of Section 4(9) of the Constitution. But that at most is a rather simplistic way of construing the provision of Section 4(9) of the 1999 Constitution.
First, and as was pointed out by Edozie, JSC, who delivered the lead judgment of the Supreme Court in the case of Chief Joseph Adolo Okotie-Eboh vs. Chief James Ebiowo Manager & 2 Ors. (2004) 18 NWLR (Pt.905) 242 at 282.
“It is also a recognized principle of interpretation of statutes that statutes which encroach on the rights of the subject whether as regard person or property are construed as penal laws. Fortissimo Contra Proferentes, that is, strictly in favour of the subject. Bello vs. Diocesan Synod of Lagos (1973) 3 SC 103 A.G. Bendel State vs. Aideyan (1989) 4 NWLR (Pt.118) 646. Abioye vs. Yakubu (1991) 4 NWLR (Pt.87) 147, Peenok Investments Ltd. vs. Hotel Presidential (1983) 4 NWLR 22.”
In other words even if it is conceded that the legislature can pass retroactive laws, such laws must not attach prejudicial consequences to prior event, it is abhorrent to pass a retroactive law that would have effect on the personal or property rights of citizens of Nigeria.
Uwaifo, JSC, meant as much when he enthused in the case of Adesanoye vs. Adewole (2000) 5 SC 124 at 154 – 155 as follows:
“It cannot be imagined that the legislature whose constitutional role is to make laws peace, order and good government would have intended pernicious result. There is always a presumption against such an intention…”
Before then, in Afolabi & Ors. vs. Governor of Oyo State & Ors. (1985) 2 NWLR (Pt.9) 734, the Supreme Court held that:
“(i) there is a presumption that a legislature does not intend what is unjust as by the abrogation of an individual vested right through a retrospective repeal or amendment of legislation conferring the right and accordingly, the presumption against retrospective abrogation of a vested right as in the present case, applies unless it is clearly shown that a retrospective effect was intended by the legislature;
(ii) a statute which encroaches on the rights of the subject, whether in relation to his person or property, is regarded as a penal statute and is subject to a strict construction that will respect such rights, and any ambiguity in the statute is usually resolved in favour of the rights and freedoms of the individual;
(iii) a statute is not to be construed as retrospectively abrogating vested rights without making provision for compensation;
(iv) the well-established presumption is that the legislature does not intend to limit vested rights further than clearly appears from the enactment.
To quote the words used by Eso JSC, in his judgment in this case at page 768;
“In my view the law has always been that unless a contrary intention is expressed there is a presumption that an enactment has no retrospective operation. The principle is lex prospecit non res picit.”
Indeed, where a right has been acquired in an enactment that has been repealed, as in the instant case, the right so acquired survives the repeal. A.G. Plateau State vs. Goyol (supra). This is because the constitution was not made to have a retroactive effect. A constitution provided to be otherwise. Such legislation affects only rights, which come into existence after it has been passed. And it is the fundamental principle of Nigerian Law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question Aremo II vs. Adekanye & 2 Ors. (supra). In the light of the above issue No. 3 is also resolved in favour of the Appellants.
Issue No. 4 which is also conceded by the learned counsel to the respondents is whether the learned trial Judge was right in his interpretation of Section 4(9) of the Constitution of the Federal Republic of Nigeria and in refusing to grant reliefs 2, 4, 5, 6, 7 and 8 sought by the appellants. I must say that the answer to issue No. 4 as already been provided in the consideration of issue No. 3 which is quite related to it. And it is that the learned trial Judge was wrong in his interpretation of Section 4(9) of the constitution of the Federal Republic of Nigeria and in refusing to grant reliefs 2, 4, 5, 6, 7 and 8 sought by the appellants. Perhaps, it would only now be necessary to make references to passages where courts have been admonished to eschew construction that would militate against the intentions of the law.
In Adeleke & 2 Ors. vs. O.S.H.A. & 18 Ors. (2006) 16 NWLR (Pt.1006) 608 at 639 -640, it was held that:
“There is always need for fulfillment of the object and true intent of the constitution. Therefore, the constitution must always be construed in such a way that it protects what it sets out to protect and guide what it is meant to guide.”
And that:
“It is the duty of the court to interpret the provisions of the constitution and other enacted statutes for the proper conduct of affairs so that democratic governance will be predicated and sustained on the rule of law and not law of the jungle.”
Also, in the case of F.R.N. vs. Osahon (2006) 5 NWLR (Pt.973), 361 at 378, it was held that:
“The Constitution must be literally interpreted so that every section will have meaning. All canons of construction will not abate but will be employed with great caution. Therefore, when the constitution is clear as to its intendment on any subject, the courts in giving construction thereto are not at liberty to search its meaning beyond it. Any power given by the constitution cannot therefore be taken away by any Act of the National Assembly or Law of a state, or a subsidiary legislation. The constitution is not to be construed with any ambiguity or mistake by its framers. It must not be subordinated to any other law and in construction must not be subjected to indignity of deletion of any section or part thereof.”
Issue No. 4 is accordingly resolved in favour of the Appellants.
Having resolved the four (4) issues in this appeal in favour of the Appellants, the appeal succeeds and it is allowed.
Consequently, I hereby declare as follows:
1. In terms of appellants’ relief No. 2 that the tenure of the appellants as members of the Local Government Council of Abia State is regulated by the provision of Section 25 of the Abia State of Nigeria Local Government Law, No. 5 of 1999 and not Sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004.
2. In terms of appellants’ relief No. 4 that the 1st defendant/respondent or any of its agents lack the legal competence to dissolve the elected councils of Abia State and appoint Caretaker committees or Transition Committees.
3. In terms of Appellants’relief No. 5 that the dissolution of the elected Chairmen, Vice-Chairmen and Councilors of the Local Government Councils of Abia State and the appointment of the 4th-7th defendants/respondents and other persons as chairmen and members of Transition Committees of the Local Government Councils by the 1st defendant/respondent are illegal, ultra vires, null and void and of no effect whatsoever.
4. In terms of appellants’ relief No. 6 it is hereby ordered that the appointment of the 4th- 7th defendants/respondent as Chairmen and Members of Transition Committees or Caretaker Committees of the Local Government Councils of Abia State are dissolved.
5. In terms of appellants’ relief No. 7 that as at the date of dissolution of the Local Government Councils in Abia State by the 1st defendant/respondent, the 2nd plaintiff/appellant had a residue of 23 (Twenty three) months of tenure as the appellants are running a 3 (three) years tenure.
6. Appellants’ relief No. 8 for an order compelling the 1st defendant/respondent to reinstate the plaintiffs/appellants is now impossible to grant as the appellants said tenure and lapsed by effluxion of time.
In the circumstances I reiterate that the appeal is allowed. Judgment is entered in favour of the Appellants. N30,000.00 costs of this appeal is awarded as against the Respondents in favour of the Appellants.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the advantage of reading before now the Judgment of my learned brother Owoade, JCA, just delivered. I am in entire agreement with his reasons and conclusions that the appeal has merit and is hereby allowed by me. I also enter judgment in favour of the Appellants.

I abide by all the consequential orders made in the lead judgment including the Order as costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother MOJEED A. OWOADE, JCA. I am in complete agreement with his reasoning and conclusions that there is merit in this appeal. I will a few words of my view on the issues in controversy.
The Appellants took their oath of office and were sworn in by and under the provisions of the Abia State Local Government Law No. 5 of 1999. The 3rd Respondent thereafter passed the Abia State Local Government (Third Amendment) Law 2004, by S.2 the law came into force on 11/3/04 and thus the law had the retroactive effect of reducing the tenure of office of already elected councilors from three (as provided in the 1999 law) to two years.
My humble view of the law is that by virtue of S.6(1) of the Interpretation Act which is part of the constitutional provisions retrospectivity must not be implied into an Act to affect vested rights unless expressly provided for in the statute. Exceptions are purely procedural legislations which immediately affect all matters pending in court. It is not my contention that a retroactive law per se is unconstitutional in respect of civil matters. See CHIGBU v. TONIMAS (2006) 4 SCNJ 262 at Pg. 274 and see Niki Tobi JSC in HRH FESTUS IBIDAPO ADESANOYE & 2 ORS v. PRINCE GBADEBO ADEWOLE (2006) 7 SCNJ Pg. 501 at 517 and 534-535 where His Lordship who wrote the lead judgment held as follows:
“Retrospectivity, the synonym of retroactivity, as it relates to statutes, means when the date of commencement of the statute is earlier in point of time than the date of enactment. See AFOLABI v. GOVERNOR OF OYO STATE (1985) 2 NWLR Pt. 9 Pg. 734. In other words, where a statute extends it scope or effect to matters that have occurred in the past, such a statute is said to have retrospective effect. A statute having a retrospective effect takes care of past matters in the sense that it draws forward such matters to have legislative effect with all the currency of the new statue. While courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence. This is because the Legislatures have the constitutional right to enact a statute and make it apply retrospectively. In so far as such a statute is donated by section 4 of the Constitution, courts of law do not have the jurisdiction to question the vires of the statute. See ADESANOYE v. ADEWOLE (2002) 9 NWLR Pt.671 Pg. 127.”
S. 4(9) of the 1999 Constitution prohibits the enactment of retrospective legislation only in relation to criminal offences. What I am saying here is that the law itself is not invalid as the legislature the House of Assembly can make retroactive laws. In A.G. ABIA STATE & 33 ORS. v. A.G. FED. (2002) 3 SCNJ 158 the Supreme Court held that it is only laws outside the legislative competence of a legislative body that can be declared unconstitutional null and void. It is not the best, it may not be morally right but it is not ultra vires the Constitution. However, before retrospectivity can be read into law, it must be shown clearly that the legislature intended to abrogate existing vested rights. The presumption is that the legislature would not perpetrate injustice by abrogating existing vested rights. I have read a copy of the law in question. It is the Abia State Government (Third Amendment) law 2004 Sections 4 and 5 states as set out below:
“4. Section 19(3) of the Principal Law is hereby amended to read as follows:
Subject to the provisions of sub-section 1 of this section, the elected Chairman and Vice-Chairman of Local Government Councils shall vacate their offices at the expiration of a period of 2 (two) years, commencing from the date when:
(a) in the case of a person first elected as Chairman or Vice-Chairman under this law, he took the oath of allegiance and the oath of office or
(b) the person last elected to that office took the oath of allegiance and the oath of office or would but for death have taken such oaths.
5. Section 25 of the Principal Law is hereby amended to include sub-section 3 which reads as follows:
Subject to the provision of sub-section, 1 & 2 of the section, the elected councilors of the Local Government Councils shall vacate their offices at the expiration of a period of 2 (two) years, commencing from the date when:
(a) in the case of a person firs elected as Councilor under this law, he took the oath of allegiance and or the oath of office; or
(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.”
As we know, an amendment enures into principal Act or Law as in this case. The law amends S.19(3) of the Abia State Local Government Law 1999 by reducing the tenure of local government chairmen from three to two years. S.25 amends the tenure of elected councilors from 3 years to 2 years. Subsection (b) of both sections specifically made the legislation applicable to the then current holders of the office. The current holders of the office counting from the day they were sworn in would have two years tenure even if they were sworn in before the law took effect. Thus there was a clear intention by the legislature to make the law applicable to persons who may have been sworn in by the previous legislation which provided for three years tenure thus abrogating existing vested rights in respect of persons sworn in under the previous law. It is there is ambiguity about whether the law is retroactive that the presumption against retroactivity comes into play. There is no such ambiguity in this case.
On my perusal of the said law, I observed that there is nothing in the law which confers on the State Government the power to dissolve existing councils whose tenure are still within the time stipulated in the law. Also more importantly there is NOTHING in the law which empowers the State Governors to appoint a caretaker committee to replace elected local government chairmen and councilors. The law as it is, is not ultra vires the Constitution. It is not the duty of the courts to quarrel with the will of the people exercised through the legislature.
A.G. PLATEAU STATE v. HON. CHIEF GOYOL (2007) 16 NWLR Pt.1059 Pg. 57 at 94 is good authority for the position that the tenure of a democratically elected council is preserved even where the law under which that particular council was inaugurated had been repealed. This is particularly relevant where the new law has not specifically affected any rights vested in the holders of the offices prior to the commencement of the legislation. That is the position which accords with justice and common sense if we want to practicalize the democratic ideals inherent in the mantra-government of the people by the people for the people.
In A.G. PLATEAU v. GOYOL (supra), the officers elected were clearly elected under the previous legislation. In this case, the Appellants as Plaintiffs at the lower court were sworn in as shown by relief I sought before the lower court on 14/1/2006 and 7/5/2005 respectively while the law being challenged was made to take effect from 11/3/2004, clearly the law affected them. The facts of this case must also be distinguished from AKPAN v. UMAH (2002) 7 NWLR Pt.767 Pg. 701 where a law was made for the nomination of membership of the local government council for appointment of Administrators and Caretaker Committees. That law was of course struck down.
Indeed, the powers conferred on the Government of every State by S.7(1) of the 1999 Constitution to ensure the existence under a law which provides for the establishment, structure, composition, finance and functions of a local government can only be executed within the confines of the provisions of the Constitution. Thus, the power of the State House of Assembly under S.4(7) of the Constitution cannot extend to truncate the tenure of a democratically elected local government council.
The Constitution only recognizes elected members of the local government council. It is ultra vires the Constitution for any State Legislature to make a law which has the effect of dissolving a local government council made up of elected chairmen and councilors and replacing it with members of a Caretaker Committee selected by the State Government. As said earlier the law under scrutiny affected only tenure and is thus not illegal even if retroactive. It is the subsequent action of the State Governor in dissolving democratically elected local government councils and replacing them with undemocratic ones that is outside the contemplation of S.7 of the Constitution which states specifically that-
“The system of local government by democratically elected local government councils is under this Constitution guaranteed”
The 1999 Constitution does not recognize Transition or Caretaker Committees for the local governments and it is ultra vires any State Governor to appoint Caretaker Committee to replace elected Local Government office holders. After the expiration of the tenure of office, it was the duty of the State Governor to arrange speedily for fresh local government elections pursuant to S.197(1)(b). Third Schedule Part II (B) paragraph 4 of the 1999 Constitution. The Government cannot set up administration for the local government unrecognized by the Constitution except when there is a clear State of Emergency calling for extraordinary action.
The Constitution provides for the democratic election of the three tiers of government. Under the Federal System of Government, the States are fully autonomous of the Federal Government within the provisions of the Constitution Section 7(1) provides that the State Government exercises democratic but not autocratic control of the local governments within its territorial jurisdiction. Yes, the State Government has the power to regulate the tenure of office of the local government elected officials, but in a democracy, the State Government has no legal or moral right to pass a retroactive legislation to shorten the lifespan of a democratically elected council in order to replace it with non elected members. In this particular case, the Governor dissolved the local government council even before the expiration of the shortened two year tenure. It is a slap on the face of the electorate. Any attempt to short circuit democracy for whatever reason by any tier of government will be vehemently resisted by the courts.
I am of the humble view that reliefs 3, 4, 5, 6 and 7 sought by the Appellants at the lower court should have been granted. In the circumstances, I allow the appeal and I grant the following reliefs:
1. In terms of Appellants’ relief No. 4 that the 1st Respondent or any of its agents lack the legal competence to dissolve the elected councils of Abia State and appoint Caretaker Committees or Transition Committees.
2. In terms of Appellants’ relief No. 5 that the dissolution of the elected Chairmen Vice-Chairmen and Councilors of the Local Government Councils of Abia State and the appointment of the 4th -7th defendants/Respondents and other persons as chairmen and members of Transition Committees of the local government councils by the 1st Defendant/Respondent are illegal, ultra vires, null and void and of no effect whatsoever.
3. In terms of Appellants’ relief No. 6 that it is hereby ordered that the appointment of the 4th -7th Defendants/Respondents as Chairmen and Members of Transition Committee or Caretaker Committees of the Local Government Councils of Abia State are dissolved.
4. In terms of Appellants’ relief No. 7 that as at the date of dissolution of the Local Government Councils in Abia State by the 1st Respondent, the 1st and 2nd Appellants had 17 (seventeen) and 11 months of their tenure respectively as I am of the view that they were bound by the new law.
I abide by the order as to costs.