BARR. ENYINNA ONUEGBU & ORS v. ATTORNEY-GENERAL OF IMO STATE & ORS
(2012)LCN/5537(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2012
CA/OW/215/2011
RATIO
APPEAL: REQUIREMENTS FOR FORMULATION OF ISSUES
Issues for determination formulated by a Respondent must arise from the grounds of appeal filed by the Appellant. A Respondent will not formulate an issue which is extraneous or strange to the grounds of appeal contained in the Appellant’s Notice of Appeal except where he has filed a cross appeal. See Jatau v. ALL FWLR (PT 499) 496 at 504. PER UWANI MUSA ABBA AJI (PJ) J.C.A
WORDS AND PHRASES: MEANING OF AN OBITER
“Obiter” simply means in passing, incidental to, cursory, while the ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter dicta reflect, inter alia, the opinions of the judge which do not embody the resolution of the Court. In other words, the expression of a Court in a judgment must be taken in reference to the facts of the case which the Court is deciding the issues calling for determination and answers to those issues. The manner in which the Court chooses to decide the case is not all important. It is rather the principle the Court is deciding on. PER UWANI MUSA ABBA AJI (PJ) J.C.A
RELIEF: NATURE OF A DECLARATORY RELIEF
A declaratory relief is no more than a mere confirmation of what is already the state of affairs of what is likely to be in connection with the subject matter of the declaration. In other words, a declaration claimed must relate to some legal right or a legal interest of which the law will take cognizance. PER UWANI MUSA ABBA AJI (PJ) J.C.A
EVIDENCE: DUTY OF THE COURT TO ACT ON VOLUNTARY ACKNOWLEDGMENT
It is trite that once there is a voluntary acknowledgment made by a party or parties as in the instant case, of the existence of the truth of certain facts, the Court has a duty to act on that admission. See Section 123 of the Evidence Act 2011. See also Seismograph Services (Nig.) Ltd. v. Eyuafe (1976) 9 – 10 SC 135; Kaydee Ventures Ltd. V. The Hon. Minister of Federal Capital territory (2010) ALL FWLR (Pt. 519) 1079; Skye Bank Plc. V. Akirpelu (2010) ALL FWLR (PT 526) 460. PER UWANI MUSA ABBA AJI (PJ) J.C.A
JUSTICE: ATTITUDE OF COURT TOWARDS DOING JUSTICE
For some times now, the courts have moved away from the regime or domain of doing technical justice to the regime or domain of doing substantial justice. This is in keeping with the jurisdiction of the wider world and its legal system. The need for courts of law to do substantial justice becomes more imperative when considering the provisions of the constitution; the fons et origo of any democracy. See Attorney General of Bendel State v. Attorney General of the Federation [1982] 3 NCLR 1; Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3. PER UWANI MUSA ABBA AJI (PJ) J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. BARR. ENYINNA ONUEGBU
Chairman, Ngor Okpala Local Government Council
2. MRS. RUBY UCHENNA EMELE
Chairman, Isiala Mbano Local Government Council
3. CHIEF BOB DESMOND UGWUIBE
Chairman, Ahiazu Mbaise Local Government Council
4. NZE CHARLES ONWUNALI
Chairman, Aboh Mbaise Local Government Council
5. CHIEF CHARLES EZEKWEM
Chairman, Okigwe Local Government Council
6. CHIEF IKECHI ALBERT NNOROM
Chairman, Ehime Mbano Local Government council
7. CHIEF NNADIEJWE VICTOR AMOBI
Chairman, Nkwerre Local Government Council
8. BARR. F. M. NNADI
Chairman, Orsu Local Government Council
9. BARR. FISHER EZEUGO EZEUKWU
Chairman, Oru East Local Government Council
10. CHIEF JOHN FRANK UGALIEGBULAM
Chairman, Oguta Local Government Council
11. PRINCESS JOAN EDUGIE NZERIBE
Chairman, Oguta West Local Government Council
12. CHIEF ONYEMAN NWACHUKWU
Chairman, Mbaitoli Local Government Council
13. CHIEF SAM AKAMEGWO
Chairman, Ikeduru Local Government Council
14. CHIEF EMMA ODOR
Chairman, Owerri Municipal Council
15. DR. ERIC K. OGWO
Chairman, Owerri North Local Government Council
16. CHIEF IKECHUKWU AWULONU
Chairman, Ihitte Uboma Local Government Council
17. CHIEF BASIL AMOBI EKWEKE
Chairman, Obowo Local Government Council
18. ENGR. IKENNA ELEZIEANYA
Chairman, Owerri West Local Government Council
19. CHIEF EDDY IKWUBUO
Chairman, Njaba Local Government Council
20. PRINCE STANLEY OSUALA
Chairman, Isu Local Government Council
21. CHIEF EZEKIEL CHUKWUKERE
Chairman, Nwangele Local Government Council
22. CHIEF EDWARD CHINEDU OBIOHA
Chairman, Orlu Local Government Council
23. PRINCE C. E. IKEGWURUKA
Chairman, Ohaji/Egbema Local Government Council
24. DR. BEDE NZENWA
Chairman, Ezinihitte Local Government Council
25. BARR. NKEIRUKA IBEKWE
Chairman, Onuimo Local Government Council
26. CHIEF KELVIN ERONINI NWANFORO
Chairman, Ideato South Local Government Council
27. CHIEF BONA VENTURE MBONU
Chairman, Ideato North Local Government Council
AND
BARR. ENYINNA ONUEGBU & 29 ORS Appellant(s)
AND
1. ATTORNEY-GENERAL OF IMO STATE
2. GOVERNOR OF IMO STATE
3. IMO STATE HOUSE OF ASSEMBLY
4. IMO STATE INDEPENDENT ELECTORAL COMMISSION (INEC)
AND
GOVERNOR OF IMO STATE Respondent(s)
UWANI MUSA ABBA AJI (PJ) J.C.A: (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Imo State, Owerri presided over by Hon, Justice B. A. Njemanze, Chief Judge Imo state delivered on the 3rd day of August , 2011 in Suit No. HOW/312/2011, whereby the plaintiffs/Appellants as Claimants on the 10th day of June, 2011 by way of originating summons, posed the following five (5) questions for determination by the Court, to wit:-
(i) WHETHER by the combined provisions of Section 7 (1) of the 1999 constitution of the Federal Republic of Nigeria (as amended) and section 23(1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any person acting on his behalf has the competence or power to dissolve democratically elected Local Government Councils in Imo State in respect of which the Claimants are Chairmen, through the 2nd Defendant’s maiden broadcast to the Imo people made on 6th June, 2011.
(ii) WHETHER pursuant to section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any person acting on his behalf has the competence or power to set up Transition Committees or direct any person to replace the Claimants who respectively are the democratically elected Chairmen of the 27 Local Government Councils in Imo State.
(iii) WHETHER having regard to Section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 3rd Defendant has the competence and power to confirm, approve, affirm or endorse the purported dissolution of the Local Government Councils in Imo State or any purported Transition Committee or Transition Committees purported to be constituted by the 2nd Defendant to replace the Claimants as the democratically elected Chairmen of the 27 Local Government Council in Imo State.
(iv) WHETHER the purported dissolution of the Local Government Councils by the 2nd Defendant wherein the Claimants are the democratically elected Chairmen on alleged ground of corruption and indiscipline without giving the Claimants a hearing is not in breach of Section 33 of the 1999 Constitution (as amended).
(v) WHETHER having regard to Section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 4th Defendant consequent upon the purported dissolution of Local Government Councils in Imo State by the 2nd Defendant, has the competence or power to organize or hold Local Government Council election in Imo state to replace the Claimants as democratically elected Chairmen of the 27 Local Government Councils in Imo State.
The plaintiffs now Appellants sought the following reliefs:-
(i) A declaration that by the combined provisions of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any person acting on his behalf has no competence or power to dissolve the democratically Elected Local Government Councils Imo State wherein the claimants are the respective Chairmen through his maiden broadcast to the Imo people made on 6th June, 2011.
(ii) A declaration that pursuant to section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of the Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any person has no competence or power to set up or constitute Transition Committees to replace the Chairmen who are respectively the democratically elected Chairmen of the 27 Local Government Councils in Imo State.
(iii) A declaration that having regard to section 7 (1) of the 1999 Constitution and section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 3rd Defendant has no competence or power to confirm, approve, affirm or endorse the purported dissolution or any purported Transition Committee or Transition Committees purported to be set up or to be constituted by the 2nd Defendant to replace the Claimants as democratically elected Chairmen of the 27 Local Government Councils in Imo State.
(iv) A declaration that by virtue of the provisions of section 23 (1) of the Local Government Law No. 15 of 2000 (as amended), the claimants have a guaranteed tenure of two years in office as democratically elected Chairmen commencing from the date of inauguration on 9th August, 2010.
(v) A declaration that the claimants are still the democratically elected Chairmen of their respective Local Government Councils until when their tenure of office expires.
(vi) A declaration that having regard to Section 7 (1) of the 1999 Constitution and Section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2011 (SIC) (as amended) the 4th Defendant has no competence or power to organize or hold any Local Government Council election to replace the claimants as democratically elected Chairmen of the 27 Local Government councils in Imo State consequent upon the purported dissolution of Local Government councils in Imo State by the 2nd Defendant.
(vii) An order setting aside the purported dissolution of the 27 Local Government Councils in Imo State where in the Claimants are respectively the democratically elected Chairmen for being unlawful, illegal unconstitutional, null and void.
(viii) An order of perpetual injunction restraining the 3rd Defendant from, in any manner howsoever or whatsoever confirming, affirming or endorsing the purported dissolution of any transition committee or Transition committees,the 2nd Defendant will purport to set up or constitute to replace the claimants as democratically elected chairmen of Local Government councils in Imo State.
(ix) An order of perpetual injunction restraining the 2nd Defendant by himself,his servants, agents, privies or whosoever from interfering with the rights and privileges of the Claimants as democratically elected Chairmen of the 27 Local Government Councils in Imo State and or appointing persons or constituting Transition Committees to take over the offices of the claimants or to replace them until they serve out their tenure.
(x) An order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th Defendants by themselves, their agents, privies, servants or whosoever, from interfering in any manner whatsoever with the statutory duties of the Claimants as democratically elected Chairmen of the 27 Local Government Councils in Imo State by purporting to give effect to any purported dissolution of the 27 Local Government councils or preventing the Claimants from functioning in office as elected chairmen of the 21 Local Government Councils until the expiration of their tenure of office.
Briefly, the facts as deposed to by the Appellants in their Affidavit in support of the originating summons are, that they were on the 9th August, 2010 inaugurated into office as democratically elected Chairmen of the 27 Local Government Councils in Imo State for guaranteed tenure under the Imo State Local Government Administration Law No. 15 of 2000 (as amended). That on the 6th June, 2011, the democratically elected 27 Local Government Councils in Imo State wherein the Appellants were the Chairmen and enjoy guaranteed tenure were purportedly dissolved by the 2nd Respondent through a maiden broadcast he made to the people of Imo State as the Governor. A copy of the broadcast as published in a Newspaper; White Paper on 9th June, 2011 was attached as Exhibit D. That in the said broadcast, the 2nd Respondent condemned the Appellants as being corrupt and lacking discipline, which ground he relied in dissolving the councils. They also claimed that they were not given any hearing before they were condemned for alleged criminal offences of corruption.
The Respondents filed their respective defences including Notices of preliminary Objection to jurisdiction and competence of the Suit. They claimed that the Appellants have no locus standi to maintain this action because the election which brought them into office was illegal in that the election was conducted while a case was pending in Court and as such that the principle of lis pendens operated to vitiate their election and as such they were not democratically elected as they claimed.
They also submitted that the suit was not supported by credible evidence as Exhibit ‘D’ relied upon by the Appellants is inadmissible as it was not produced from proper custody, In a considered judgment delivered on the 3rd August, 2011, the Learned Chief Judge dismissed the Appellant’s claim, he held inter-alia as follows:
“In the final analysis, I hold that Exhibit D is not a Newspaper properly so called and as such it cannot be relied upon for the proof of the fact of the contents of the broadcast of the 2nd Defendant. I therefore hold that the Claimants have not placed before this Court any credible evidence to enable the Court grant the reliefs they are seeking. Consequently, this case is hereby dismissed…”
The Appellants are dissatisfied with the said decision and have now appealed to this Court vide a Notice and Grounds of Appeal dated 4th day of August, 2011 upon four (4) grounds of appeal. The four (4) grounds of appeal are hereunder reproduced without their particulars.
GROUNDS OF APPEAL
1. The Learned trial Chief Judge erred in law when he held that there is no evidence of the dissolution of the Local Government councils in Imo State when there is neither express nor implied denial of the said dissolution by all the Defendants.
2. The Learned trial Chief Judge erred in law when he held that the Appellants’ Exhibit D – the Newspaper Publication evidencing the publication of the broadcast of the 2nd Defendant wherein he purported to dissolve was not a sufficient evidence of the dissolution to be acted upon by the Court.
3. The Learned trial Chief Judge erred in law when he failed to grant the reliefs sought by the Appellants having held that the 2nd Respondent lacked the power to dissolve the democratically elected Local Government Councils which was the main issue for determination.
4. The Learned trial Chief Judge erred in law by making inconsistent and conflicting findings to wit: that the 2nd Respondent had no power to dissolve and at the same time, a finding that there was no evidence of dissolution.
The Appellants also filed 8 additional grounds of Appeal on 22 day of August, 2011. (See pages 349 – 451 of the Record of Appeal)
The 2nd Respondent is also not satisfied with the judgment of the Lower Court and was said to have cross appealed.
In line with practice in this Court, parties filed and exchanged briefs of argument, The Appellants in their brief of argument settled by Dr. Livy Uzoukwu, SAN, dated 2/12/2011, filed on the 6th December, 2011 but deemed properly filed on the 21st February, 2012, formulated two (2) issues for determination from the 12 grounds of appeal, to wit:
1. Whether having found that the 2nd Respondent lacked the power to dissolve democratically elected Local Government Councils wherein the Appellants are Chairmen the Court below was not bound to have resolved all the questions in Suit in the affirmative and grant the reliefs thereto. Alternatively, whether the Court below was not obligated to have resolved question ii in the affirmative and grant reliefs (ii), (iv), (v), (ix) of the Appellants in the originating summons (Grounds 3, 4, 9 and 12 of Appeal).
2. Whether the Court below was right when it held that the Appellants have not placed before it credible evidence to have enabled it grant the reliefs sought by the Appellants and hence it dismissed the Suit. (Grounds 1, 2, 5, 6, 7 and 8 of Appeal).
In the 1st Respondent’s brief of argument settled by M. C. Uwasomba, Esq., Director Civil Litigation and K. C. Nwokorie, Esq., Chief State Counsel, Ministry of Justice, Imo State dated 4th April, 2012 and filed on the 5th/4/12 four (4) issues were formulated for determination to wit:-
(a) Whether the Court has the jurisdiction to entertain this case in view of the improper procedure of originating summons adopted in this case.
(b) Whether Appellants have the locus standi to institute this case in view of the doctrine of Lis Pendens which applies to this case.
(c) Whether the remark or observation of the learned trial Chief Judge that, “it is axiomatic that the 2nd Defendant does not possess the Constitutional powers to dissolve the Local Government Councils before the expiration of the elected Local Government Council Chairmen” is a ratio decidendi i.e., (the grounds or reason for the decision, the point in a case which determines the judgment) or an obiter dictum.
(d) Whether there is credible evidence on which the Court can act upon in the determination of the reliefs claimed by the Appellants before the Lower Court.
In the 2nd Respondent’s brief of argument settled by Chief Adeniyi Akintola, SAN, dated 25th April, 2012 and filed on the same date but deemed properly filed on the 26/4/2012, the following two issues were also distilled for the determination of the appeal.
The issues are:
(i) Whether the Appellants were democratically elected into the Local Government councils in Imo State by the so called election of 7th August, 2010.
(ii) Whether the doctrine of Lis Pendens does not rob the Appellants herein of the rights and interest which would have been conferred on them by the Election of 7th August, 2010.
The 3rd Respondent’s brief was settled by C. O. Ejiogu, Esq. Therein, the 3rd Respondent adopted the issues formulated by the Appellants in the determination of this appeal.
Tochukwu Odoh, Esq. for the 4th Respondent stated that they did not file any brief as they have nothing to contribute.
At the hearing of the appeal on the 9th May, 2012, Learned counsel for the Appellants, Dr. Livy Uzoukwu, SAN adopted and relied on the Appellants brief of argument filed on 6/12/11 but deemed properly filed on 21/12/12 as well as the Appellant’s reply brief to the 1st and 2nd Respondent’s brief of argument filed on the 18/4/12 and 8/5/12 respectively and urged the Court to allow the appeal.
Counsel to the 1st Respondent, Hon. Attorney General, Imo State, S. A. Njoku, Esq. adopted and relied on the 1st Respondent’s brief of argument dated 4th/4/2011 and filed on the 5/4/2012 and urged the court to dismiss the appeal.
Learned Counsel for the 2nd Respondent F. Aofalaju, Esq.adopted and relied on the 2nd Respondent’s brief of argument dated and filed on the 25/4/2012 but deemed properly filed on the 26th/4/12 and urged the Court to dismiss the appeal. Learned Counsel also adopted and relied on the 1st Respondent’s/cross Appellant’s brief of argument filed on the 4/5/2012 but deemed properly filed on the 9/5/2012 which is predicated on an alleged Notice of Cross Appeal filed on the 29th/8/2011 and urged the Court to allow the cross appeal.
The 3rd Respondent’s Counsel, C. O. Ejiogu, Esq., adopted and relied on the 3rd Respondent’s brief of argument filed on the 4/4/2012 and deemed properly filed on that day and urged the Court to dismiss the appeal.
It is argued at the hearing and rightly too by the learned senior counsel for the Appellants’ that the 1st Respondent formulated four issues for determination and according to the Appellants Counsel none of the issues formulated had any significant bearing on the Appellants issues for determination and the grounds of appeal.
He submitted that where a Respondent did not file a cross appeal; he has no right to go outside the Appellant’s grounds of appeal in formulating the issues for determination in the Respondent’s brief of argument. The four issues according to Learned Senior Counsel centred on jurisdiction, Locus Standi, ratio of judgment of the Lower Court and existence or otherwise of credible evidence. Reliance was placed on the following cases: Koya v. UBA Ltd. (1997) 1 NWLR (PT 481) 251; Labiyi v. Anrietola (1992) 8 NWLR (PT 258) 139: Aduko v. Adejoh (1994) 5 NWLR (PT. 346) 582; Ogunbiyi v. Ishola (1996) 6 NWLR (PT 452) 12; Eke v. Ogbonda (2006) 18 NWLR (PT. 1012) 506 at 522-523 to submit further that issues (a), (b) and (c) of the 1st Respondent brief of argument and that of the 3rd Respondent are incompetent.
Learned senior counsel further submitted that there is no law that says because the issue of jurisdiction and Locus Standi were raised in the said incompetent issues for determination, they can be brought in any how and relied on the case of Eke v. Ogbonda (supra) at 522 to submit that there is nothing to consider in the incompetent issues for determination. He submitted that while it is true that the question of jurisdiction and Locus Standi can be raised for the first time on appeal, but that, where a Respondent raised it at the court below and was expressly overruled, that the Respondent cannot revive same without appealing against the subsisting decision of the court below on that issue.
It is also submitted that the argument of the 1st Respondent on issues (a), (b) and (c) in their brief of argument were exactly the same submissions they made at the court below. Learned counsel referred to paragraph 4.09 at page 10 of the 1st Respondent’s brief to submit that it revives their argument in the court below that there was no proper election on August, 7th, 2010 because of court orders and that the 2nd Respondent can dissolve the Local Government councils, Learned counsel referred to the finding of the Learned trial chief Judge on the issue at pages 333 to 334 of the records of appeal. His view is that that argument is dead and the only thing that can bring life to it is the order of Appellate court on appeal. He relied on Nwaolisah v. Nwabufoh (2011) ALL FWLR (PT 591) 1438 at 1459 to submit that where a party does not dispute or appeal against a finding of fact, it remains valid and impeccable.
The Learned senior counsel also submitted that even though the 3rd Respondent adopted the Appellants’ issues for determination, however, in arguing same, he fell into the same ditch the 1st Respondent fell into. He referred to pages 6 to 8 of the 3rd Respondents brief where he exhumed the same issue of cause of action raised at the Court below and even went further at his pages 9 to 10 into the non existence of resolution/ratification by the 3rd Respondent and the question of absence of jurisdiction and the doctrine of separation of powers.
Learned Senior Counsel went on to submit that the 3rd Respondent went further into contending that there was no election result published for the Appellants from other Political Parties. He submitted that all these did not flow from any of the Appellants, issues for determination and that the submissions go to no issue and the Court was urged to discountenance same, that is 1st Respondents issues (a), (b) and (c) and the argument of 3rd Respondent in respect of Appellants, issues as the Counsel has no right to argue extraneous matters.
It is also submitted that the 1st Respondent’s issue (c) and the 3rd Respondent’s issue 2, are that the pronouncement of the learned trial Chief Judge which was the main plank of the originating summons is an obiter dictum, and not a ratio decidendi of the case. He referred to the holding of the learned trial chief Judge at page 338 of the records of appeal to submit that his Lordship was not in doubt as to the subject matter of the interpretative jurisdiction that he was invited to exercise and such a pronouncement could not be said to be obiter dictum. His view is that the contention does not flow from any of the grounds of appeal and the Court was urged to discountenance same.
In his oral argument in Court, the Learned Attorney General submitted that a Respondent can formulate issues for determination provided that they flow from the grounds of appeal filed by the Appellants. That their issues (c) and (d) are discernable from grounds of appeal Nos. 3, 4, 9 and 11 of the Appellants, grounds of appeal, while issue (d) flows from grounds 1, 2, 5, 6, 7, 8, 10 and 12 of the grounds of appeal. He thus submitted that the issues formulated are proper before the Court.
The Hon. Attorney General also submitted that the reason for the judgment of the Court below at pages 324 to 339 of the records of appeal is that it dismissed the Originating Summons before it because the Appellants did not adduce credible evidence, and that any ground of appeal formulated out of this is a ground obiter dicta and therefore incompetent ground. He also submitted that the issue of jurisdiction can be legitimately raised provided the ground is manifest from the proceedings of the Court by a Respondent who has not filed a across appeal.
It is now settled that issues for determination in an appeal may be formulated by either one or both parties or those reframed by the Court itself, but the issues formulated must be appropriate, apposite and consistent with the grounds of appeal filed by the Appellant and will lead to a proper determination of the appeal. A Respondent is not at liberty just to steer the Court off-track. In other words, a Respondent who has not cross appealed or filed a Respondent’s Notice has no business formulating issues for determination outside the grounds of appeal filed by the Appellant. I have considered the four Issues formulated by the 1st Respondent for determination and the Appellants’ twelve grounds of appeal and it is my considered view that 1st Respondent’s issue (c) relate to grounds 3, 4, and 9 of the Appellants grounds of Appeal while grounds 1, 2, 5, 6, 7, 8 and 12 relates issue (d). The same cannot be true of Issues (a) and (b) which are framed outside the grounds of appeal formulated by the Appellants. Even at the risk of repetition, Issues (a) and (b) are as follows:-
(a) Whether the Court has jurisdiction to entertain this case in view of the improper procedure of originating summons adopted in this case.
(b) Whether the Appellants have the locus standi to institute this case in view of the doctrine of lis pendens which applies in this case.
These two issues did not arise from the grounds of appeal filed by the Appellants. They have no place in the determination of this appeal. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. An issue in effect without a ground of appeal collapses. Therefore, the 1st Respondent’s issues (a) and (b) for determination not related to the appellant’s grounds of appeal must be discountenanced along with the argument canvassed thereunder. See Jodi v. Salami (2009) ALL FWLR (Pt. 458) 385.
Any issue formulated in the brief which does not relate to a ground of appeal is incompetent. In African Petroleum Ltd. V. Omodunmi (1991) 8 NWLR (pt 210) 391 at 423 the Supreme Court said, “It is well settled that any issue raised or argument advanced on issue not arising from a ground of appeal is incompetent and liable to be struck out.” See also Oje v. Babalola (1991) 4 NWLR (PT 185) 267; Republic Bank Ltd. V. CBN (1998) 13 NWLR (PT 581) 306; Okumodi v. Sowunmi (2004) 2 NWLR (pt. 856) 1 Emmanuel v. Debayo-Doherty (2009) 4 WRN 149, Aniekwe v. Okereke (1996) 6 NWLR (PT 452) 60.
Learned Counsel for the 1st Respondent also argued that the Issue of Jurisdiction of the lower court could be raised before this court where the ground is manifest from the proceedings of the court below by a Respondent who has not filed a cross appeal.
It is a settled principle of law that the jurisdiction of the Court can be raised at any time before the court, even for the first time before the Supreme Court. In the instant case, the issue of jurisdiction was raised in the court below by the 1st Respondent, but was expressly overruled.
I agree with the learned senior counsel for the Appellants that having raised the issue and was overruled by the lower court, his only option in the circumstances lies in a cross appeal. The issue having been decided by the Lower Court, he cannot be heard to raise it again without an appeal against the subsisting decision. In Nwaotisah v. Nwabufoh (2011) ALL FWLR (PT 591) 1439 at 1439 the Supreme Court had declared that where a party does not dispute or appeal against a finding of a fact, it means it is subsisting and impeccable, Therefore, the Learned trial Chief Judge’s finding on the issue of Locus standi on the ground that the case was pending in court on the principle of lis pendens and his finding that that the contention is otiose and non sequitur is binding and subsisting. The 1st Respondent cannot revive this issue again in this court without any appeal. Consequently, 1st Respondent’s issues (a) and (b) for determination having not been derived from the Appellant’s grounds of appeal are incompetent and are hereby discountenanced along with the argument canvassed thereunder. However, I find the 1st Respondent’s issues (c) and (d) are the same in con with the Appellants’ two issues for determination.
The 3rd Respondent’s argument on issue No. 2 is also afflicted by the same vice that afflicted the 1st Respondent’s issues (a) and (b), they are therefore hereby discountenanced.
I have considered the issues for determination formulated by the respective counsel and I am of the view that the issues as formulated by the Appellants are apt in the determination of the appeal and I therefore adopt same in the determination of this appeal.
Issue 1:
Whether having found that the 2nd Respondent lacked the power to dissolve democratically elected Local Government Councils wherein the Appellants are Chairmen, the court below was not bound to have resolved all the questions in Suit in the affirmative and grant the reliefs thereto. Alternative, whether the Court was not obligated to have resolved question II in the affirmative and grant reliefs, (ii) (iv) (v) and (ix) of the Appellants in the originating summons.
In arguing the issue, the Learned Senior Counsel for the Appellants, Dr. Livy Uzoukwu, SAN referred to paragraph 6 of the supporting affidavit seeking interim preservative order of the Court pending determination of the originating summons, which is also the same with paragraph 13 of the affidavit in support of the originating summons thus;
“On the 6th June, 2011, the democratically elected 27 Local Government Councils in Imo State wherein we are chairmen and enjoy guaranteed tenure were purported dissolved by the 2nd Defendant through a maiden broadcast he made to the people of Imo State as the Governor. A copy of the broadcast as published in a Newspaper; White Paper on 9th June, 2011 at page 9 is attached as Exhibit A.”
He submitted that the Court in its ruling held that the main issue to be determined in the case is whether or not the 2nd Defendant has the constitutional powers to dissolve the democratically elected Local Government Councils in Imo State. He referred to Section 7(1) of the 1999 Constitution as amended which guaranteed a democratically elected Local Government Councils and Section 23 (1) of the Imo State Local Government Administration law No. 15 of 2000 (as amended). He submitted also that the 1999 Constitution (as amended) creates the state Independent Electoral commission which conducted the Local Government election in Imo state that produced the Appellants as the duly elected chairmen of their various Local Government councils in Imo state. He referred to the cases of Attorney General of Plateau State and ors v. Hon. Chief Anthony Goyol & Ors (2007) 16 NWLR (PT 1059) 57 at 94 Attorney General of Benue State and Ors. V. Hon. Musa Umar and ors (2008) 1 NWLR (PT. 1068) 311 at 362 to 363 to submit that the penchant by state Governors in dissolving Local Government Councils is clearly undemocratic.
Learned senior counsel also referred to the cases of Attorney General of Abia State v. Attorney General of the Federation (2006) 16 NWLR (pt. 1005) 265 at 381; Akpan v. Umah (2002) NWLR (pt. 767) 738; submit that the 1999 Constitution is supreme.
Learned Senior Counsel referred to the finding of the learned trial Chief Judge on the defences of Locus standi and Lis pendens raised by the 1st to 3rd Respondents that they are otiose and non-seguitur to submit that there is no appeal challenging this conclusion by the learned trial Chief Judge. That this finding of the Lower Court not being disputed or appealed against remain subsisting and impeccable relying on the authority of Nwaolisah v. Nwabufoh (2011) ALL FWLR (PT. 591) 1438 at 1459.
On the sole issue submitted to the learned trial Chief Judge for determination, the Learned Senior counsel referred to the finding of the learned chief Judge at page 338 of the record that the 2nd Respondent lacks the constitutional power to dissolve democratically elected chairmen to submit that based on its finding, the court was under obligation to resolve all the questions in the originating summons in the affirmative and grant all the reliefs thereto sought. His view is that the court made it clear that the 2nd Respondent lacks the constitutional powers to dissolve the 27 Local Government councils in Imo State wherein the Appellants are the respective democratically elected Chairmen of the said Councils before the expiration of their tenure and this being so there is no any legal inhibition to prevent the court below from granting the reliefs sought by them and to now dismiss the claim.
Learned senior counsel also submitted that the finding of the learned trial chief Judge at page 338 of the records of appeal that the Appellants have not placed before the court any credible evidence to enable the court to grant the reliefs they are seeking does not flow from the finding that the 2nd Respondent does not possess the constitutional powers to dissolve the democratically elected Local Government councils. His view is that the finding makes the judgment wrong in law. He placed reliance on the case of Knight Frink & Rutley (Nig.) v. Attorney – General Kano State (1998) 7 NWLR (PT 556) 1 at 19 to submit that it is elementary that where any person acted contrary to, infringes or violates any of the provisions of the constitution, such action is null and void and of no effect whatsoever. He submitted that the Court below was obligated to resolve question (ii) in the suit in the affirmative and to grant reliefs (ii), (iv), (v) and (ix) in the originating summon. He referred to the case of Oloruntoba-Oju v. Dopamu (2008) 7 NWLR (PT 1085) 1 at 36 to also submit that the court retains the power to declare contested legal rights, subsisting or future of the parties represented before it and not those of anyone else. He also placed reliance on the cases of International iles Industries (Nig.) Ltd v. Aderemi (1999) 8 NWLR (PT. 614) 268 at 302; and Dantata v. Mohammed (2007) 7 NWLR (Pt. 64) 211, to further submit that all the reliefs in the suit, particularly reliefs (ii), (iv), (v) represent either existing state of affairs or what is likely to be in connection with the subject matter of the declarations sought and the court should have confirmed them. It is also further submitted that even if some of the reliefs are deemed ungrantable by the court, it could have properly granted other reliefs that flow from his finding on the lack of power of the 2nd Respondent to dissolve Local Government councils.
Still dwelling on this issue, Learned senior counsel submitted that the failure of the court below to apply the concession made by the 2nd Respondent, that “if the complainants were democratically elected, then the court should presume the exercise by the 2nd Respondent invalid” occasioned grave miscarriage of Justice and the court was urged to resolve this issue in favour of the Appellants.
In his response on this issue, the Learned Attorney General, summarized the plank of the Appellants’ argument as contained in the Appellant’s brief from paragraph 4.01 to 4.44 to submit that although paragraph 6 of the supporting affidavit in the interim injunction was repeated in paragraph 13 of the main affidavit in support of the originating summons, it is his view that the determination of whether or not the 2nd Respondent has the constitutional powers to dissolve the democratically elected Local Government councils in Imo state, was an incidental and collateral issue to the proof of whether the Appellants did in law produce credible evidence in proof of the dissolution of the 27 Local Government councils in Imo State. That since such credible evidence was not presented before the trial Court, the statement or observation of the Lower Court becomes obiter dicter and not a ratio decidendi. On what is a ratio decidendi and obiter dictum, the learned counsel referred to the cases of A.I.C. Ltd. V. NNPC (2005) ALL FWLR (PT. 270) 1945) at 1968 – 1969; University Press Ltd. v. I.K. Martins Ltd. (2010) FWLR (pt. 5) 711 at 732 to submit that it is the legal, principle in the judgment of the Court which is necessary in the determination of the issue raised in the case, that is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta.
Learned Counsel also submitted that the Appellants have a duty to prove their case on the strength of their own case and not on the weakness of the Respondent’s case. Reliance was placed on the cases of Emmanuel A. Adeniran V. Emannuel Alao & Anor (2002) FWLR (PT. 90) 1285 at 1302; Kodilinye v. Odu (1935) 2 WACA 336; and Enigwe v. Akaigwe (1992) 2 NWLR (PT 225) 595 to also submit that the Appellants’ claims are declaratory and that declaratory reliefs are not granted wholly or solely on admissions in pleadings and in this case on originating summons. Reliance was also placed on the cases of Oduyoye v. Lawal (2003) 3 NWLR (PT 807) 467; Eleonu v. Ekwoaba (1998) 12 NWLR (pt. 578) 320; Okedare v. Adebara (1994) 6 SCNJ 254 at 266, and Maja v. Samuris (2002) FWLR (PT 98) 818. It is also submitted that the Appellants irrespective of the averments contained in paragraph 13 of the Appellants’ affidavit in support of the originating summons, the onus or duty to prove such facts by credible evidence lies with the Appellants. He also relied on the case of Ibekwe v. Imo State Education Management Board (2009) ALL FWLR (pt 488) 297 at 309.
Learned Attorney General submitted that the learned trial Chief Judge was right to have refused the grant of the reliefs sought as the facts presented by the Appellants were not enough to sway the Courts discretion in their favour, citing the cases of Okedare v. Adebara (supra) at 265 and 274 and Oduyoye v. Lawal (supra) at 464. He also referred to the case of Ogolo v. Ogolo (2006) ALL FWLR (pt. 313) 7 at 13 and 14 and urged the Court to resolve this issue against the Appellants.
Arguing his two issues together, Learned Senior Counsel for the 2nd Respondent submitted that the Appellants election who emerged as Peoples Democratic Party candidates in the party primaries was held in flagrant disobedience to Court order made on the 18th May, 2010 by a High Court sitting in Owerri in Suit No. HOW/545/2009 cannot be said to be democratically elected into the 27 Local Government Councils in Imo State and that whatever right or interest ought to have been conferred by the Appellants by the election of 7th August, 2010 has been taken away by the doctrine of lis pendens.
He submitted that the election that brought the Appellants into power was a subject matter in Suit No. FHC/OW/CS/176/2010 i.e. Obinna Chinedu and 7 Ors vs. INEC wherein the Plaintiffs therein approached the Court to stop the Local Government election scheduled for 7th August, 2010 because the plaintiffs as eligible voters were unregistered. He submitted that the said Suit was struck out on the 4th August, 2010 on the ground that the Court cannot determine the Plaintiffs claim on the non updating of voters Register without wading into the legality of the Local Government Election said to be conducted by the Imo State Government. He submitted that the Plaintiffs in the Suit were dissatisfied and appealed in Appeal No. CA/OW/215/2010. That the 1st, 2nd and 4th Respondents herein were the 2nd, 3rd and 4th Defendants in the Suit. That an application for interlocutory injunction restraining the 2nd, 3rd and 4th herein from going ahead with the election of 7th August, 2010 was filed on the 5th August, 2010. The view of the Learned Senior Counsel is that the decision of the 4th Respondent to hold the election of 7th August, 2010 while CA/OW/215/2010 was still pending offends other laws and is contemptuous of a Court of competent jurisdiction.
Learned senior counsel drew the attention of the court to the doctrine of lis pendens which has been held to be part of our laws in the Supreme Court decision of Ameachi v. INEC & Ors (2008) 10 WRN 1 at 258 per Aderemi, JSC (as he then was); Network Security Ltd. v. Dahiru (2007) 26 WRN at 101 to 102; Ugwu V. Ararume (2007) 10 NWLR (PT 1048) 367 and Danjubo v. Danjubo (1999) 11 NWLR (pt. 627) 445 to submit that the election of 7th August, 2010 was illegal and liable to be set aside. He thus submitted that by virtue of the pendency of CA/OW/215/2010, the election of 7th August, 2010 which was held in violation of the doctrine of Lis pendens did not confer on the Appellants any right interest or status as democratically elected Local Government chairmen of the various Local Government Councils which they claim to have been elected into.
He submitted that the doctrine of lis pendens operates to prevent the Appellants from enjoying any right which could have been conferred by emerging as winners of the election of the 7th August, 2010, that it is immaterial that the Appellants did not have notice of CA/OW/215/2010. Reference was made to the following cases: Network Security Ltd. v. Dahiru (supra); Barclays Bank of Nigeria Ltd. v. Ashiru (1987) 6-7 SC 99 at 175; Allied Bank Nigeria Plc. V. Bravo W/A Ltd. (1996) 3 NWLR (PT 499) 710.
The Learned senior counsel also referred to the case of Military Governor Lagos State v. Ojukwu (2001) 39 WRN 155 at 173 to submit that the election by the 4th Respondent in spite of the application for injunction on 5th August, 2010 filed by Appellants in CA/OW/21512010 was unlawful and illegal and against the rule of Law. That the fact that the application filed on 5th August, 2010 was yet to be heard and determined is immaterial as the 4th Respondent was restrained from holding the election of 7th August, 2010 until the hearing and determination of the application for injunction. He thus submitted that the election of 7th August, 2010 was illegal and could not have transferred any right to the Appellants.
The Learned Senior Counsel argued referring to the facts deposed to by the Appellants in the further affidavit in support of their originating summons in paragraphs 18 and 19 to submit that the time when the primaries which produced the Appellants were conducted on 7th August, 2010, Suit No. HOW/545/2009 was very much alive and not dismissed. He also submitted that in Suit No. HMI/120/2007 there was an order made on 21st September, 2009 for parties to maintain status quo. He submitted that in view of the orders made that were subsisting when the erection of 7th August, 2010 was held was done so in flagrant disregard of the orders of the Court valid and subsisting at the time. The following cases were referred to: Osakwe v. INEC (2005) 18 NWLR (PT 942) 442 AT 474; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382, Odu v. Jolaoso (2005) ALL FWLR (PT 262) 428 at 447 to further submit that the Appellants were never elected democratically. It is his view that it would amount to injustice to allow the appeal of the Appellants who are in travesty of the rule of law. That he who comes to equity must come with clean hands and that the hands of the Appellants are soiled and the court was urged to resolve these two issues in favour of the 2nd Respondent against the Appellants.
Mr. C. O. Ejogu, Esq. for the 3rd Respondent, responding to Appellants’ issue No. 1 submitted that the pronouncement by the court was a mere obiter, a statement by the way. That the law is settled that statement that is obiter dictum is not a ratio decidendi. The cases of University Press Ltd v. I. K. Martins, 75 LRCN 478 at 479; Gomwalt v. Milad (1998) 2 NWLR (pt. 103 244 were referred to. He submitted that the Court below having found that Exhibit D is inadmissible piece of Evidence did not bother to consider the numerous issues raised by the parties at the trial. His view is that there was no finding as argued by the Appellants by the court below that the 2nd Respondent lacked the constitutional competence to dissolve the Local Government Councils of Imo State which they headed as chairmen. The court was urged to discountenance the submission.
Learned Counsel also submitted that Appellants were given fair hearing and that the court is not bound to supervise or compel a party to utilize the opportunity offered to him. He cited Newswatch Communications Ltd. v. In his reply brief to the 1st Respondent’s issue (c), Learned Senior Counsel for the Appellants, Dr. Livy Uzoukwu, SAN submitted that the principal claim in this case is the interpretation of Section 7(1) of the 1999 Constitution (as amended) on the constitutional duty of State Governments to ensure the existence of a democratically elected Local Government Councils. It is submitted that the pronouncement of the trial Chief Judge on this question is not a passing, incidental or cursory remark.
In his reply to the 2nd Respondent’s argument canvassed above, Learned senior counsel for the Appellants submitted that the 2nd Respondent’s issues for determination as outlined above and the argument canvassed thereunder do not flow from the Appellant’s grounds of appeal and that where a Respondent did not file a cross appeal, he has no right to go outside the Appellant’s grounds of appeal in formulating his issues for determination. He submitted that the two issues formulated by the 2nd Respondent centred on whether or not the Appellants were democratically elected and whether or not the Appellants are not robbed of their interest by operation of the doctrine of lis pendens.
He submitted that issues for determination in an appeal may be those formulated by either one or both parties, or those reframed by the court of Appeal but the issues as formulated must be appropriate, apposite and consistent with the grounds of appeal filed by the Appellant and will lead to a proper determination of the appeal. It is his view that a Respondent is not at liberty to frame anything just to steer the court off-track. He relied on the following case: Koya v. UBA Ltd. (1997) 1 NWLR (PT. 841) 251; Labiyi V. Anrietola (1992) 8 NWLR (pt 258) 139; Aduku v. Adejoh (1994) 5 NWLR (pt 346); Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12; Eke V. Ogbonda (2006) 18 NWLR (Pt 1012) 506, to submit that a respondent cannot raise an issue outside those framed or formulated by the Appellant from the grounds of appeal filed without across appeal or a Respondent’s Notice. He therefore submitted that on the strength of the cases cited above, the issues formulated in the 2nd Respondent’s brief of argument and the arguments therein canvassed are incompetent and go to no issue. He also opined that there is no law that says because the issue of whether the Appellants were democratically elected or not and the doctrine of lis pendens may be said to relate to jurisdiction, and can be brought in anyhow. He cited the case of Eke v. Ogbonda (supra) at 522 to submit that the two issues formulated by the 2nd Respondent are invariably defective and therefore incompetent and the court was urged to so hold.
Learned counsel further submitted that the 2nd angle to the incompetence of the 2nd Respondent’s issues for determination is that they are formulated from questions resolved by the court blow in respect of which there is no appeal. He referred to the findings of the court below at page 333-334 of the records of appeal to submit that this pronouncement of the learned trial Chief Judge which inflicted a critical below on the 2nd Respondent’s argument was not appealed against. He therefore submitted that the 2nd Respondent cannot just rake up issues which were neither appealed against by him nor drawn up from the Appellants’ grounds of appeal.
Still dwelling on the 2nd Respondent’s issues for determination, Learned Senior Counsel submitted that the 2nd Respondent did not advance in his brief of argument even a sentence to support the judgment of the trial Court which is one of the primary duties of a Respondent, citing Odofin v. Ndiribe (2010) ALL FWLR (Pt 549) 1031 at 1041. He continued that the 2nd Respondent is not at liberty to formulate any issue which is extraneous to the grounds contained in the Appellants’ notice of appeal except where he filed his own Notice of Appeal. He cited the cases of Nzekwu V. Nzekwu (1989) 2 NWLR (PT. 104) 373; Edokpolor & Co. Ltd. v. Sem-Edo Wire Ltd. (1989) 4 NWLR (Pt. 116) 473; Udom v. Michelletti (1997) 52 LRCN 140; Jatau v. Ahmed (2003) FWLR (pt. 151) 1887; Catco Corporation Organized v. African Reinsurance Corporation (2010) ALL FWLR (PT 517) 677; Iwuoha v. Nigeria Postal Services Ltd (2003) FWLR (PT 160) 1535; Okpala v. Iheme (1989) 1 NWLR (pt. 102) 208. He also relied on Order 18 Rule 4 (2) of the Court of Appeal Rules 2011 to submit that the 2nd Respondent never addressed the constitutional question of whether he has the powers to dissolve the elected Local Government Councils in view of Sections 7 (1) of the 1999 Constitution (as amended). He urged the Court to discountenance the 2nd Respondent’s issues canvassed therein.
I have critically examined the submissions of the Learned Senior Counsel for the Appellant in response to the 2nd Respondent to the issues for determination and arguments canvassed therein. The 2nd Respondent formulated two issues for determination, to wit: – These are:
(i) Whether the Appellants were democratically elected into the Local Government Councils in Imo State by the so called election of 7th August, 2010.
(ii) Whether the Doctrine of lis pendens does not rob the Appellants herein of the rights and interest which would have been conferred on them by the election of 7th August, 2010.
Clearly, the issues and argument canvassed thereunder did not arise or relate to the issues for determination formulated by the Appellants. Issues for determination formulated by a Respondent must arise from the grounds of appeal filed by the Appellant. A Respondent will not formulate an issue which is extraneous or strange to the grounds of appeal contained in the Appellant’s Notice of Appeal except where he has filed a cross appeal. See Jatau v. ALL FWLR (PT 499) 496 at 504. In the instant case, the 2nd Respondent’s issues for determination are not based on, or flow from the grounds of Appeal filed by the Appellants. They are therefore irrelevant and go to no issue and some are hereby discountenanced with the arguments canvassed thereunder.
I have considered the submissions of Learned Senior Counsel for the Appellants on this issue, along with the responses by the 1st to 3rd Respondent’s Counsel in their respective briefs and the authorities cited thereof in support of their respective stands, I have also carefully considered the questions for determination in this matter as contained in the originating summons and the reliefs jointly and severally claimed by the Appellants against the Respondents on record. It appears to me that the main plank of the Appellants’ complain is as stated in their paragraph 6 of the affidavit seeking interim preservative Order of the Court below pending the determination of the originating summons which is also the same with paragraph 13 of the affidavit in support of the originating summons. The paragraph states as follows:
“That on 6 June 2011, the democratically elected 27 local Government councils in Imo state wherein we are the Chairmen and enjoy guaranteed tenure were purportedly dissolved by the 2nd Defendant through a maiden broadcast he made to the people of Imo State as the Governor. A copy of the broadcast as published in a Newspaper; White paper on 9th June 2011 at page 9 is attached as Exhibit A”
The Learned Trial chief Judge held in his ruling on the application for interim preservative order that:
“It follows that the main issue to be determined in the case is whether or not the 2nd Defendant has the constitutional powers to dissolve the democratically erected Local Government councils in Imo State.”
Put differently, whether the dissolution of the 27 Local Government Councils in Imo State wherein the Appellants were the democratically elected chairmen is not illegal, unlawful, unconstitutional, null and void?
Section 7(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended) Provides as follows:-
7(1) “The system of Local Government by democratically elected Local Government Councils is under this constitution guaranteed; and accordingly, the Government of every State shall subject to section 8 of this constitutions, ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such councils.”
Pursuant to the aforesaid Constitutional provision, the Government of every State is obliged to ensure the existence of a system of Local Government by democratically elected Local government Councils under a law which provides for the establishment, Structure, Composition, Finance and Functions of such Council. In Imo State, such Law is the Imo State Local Government Administration Law No. 15 of 2000 (as amended). Section 23(1) thereof guarantees elected Chairmen, Vice Chairmen and members of Council of a local Government tenure in office.
The learned trial Chief Judge in resolving this issue unequivocally declared at page 338 of the records of appeal as follows:-
“Now on the issue as to whether or not the 2nd Defendant has the Constitutional powers to dissolved (sic) the 27 local Government Councils in Imo State of which the claimants are the respective Chairmen of the said local Government Councils before the expiration of their respective terms of office, let me state that it is axiomatic that the 2nd Defendant does not possess the Constitutional powers to dissolve the Local Government Councils before the expiration of the elected local Government Council Chairmen. See A-G Plateau State v. Goyol (2007) 16 NWLR (pt. 1059) 67; AG Benue State v. Umar (2008) 1 NWLR (pt. 1068) 311; Abubakar v. AG Federation (2007) 3 NWLR (pt. 1022) 601.”
This is a clear pronouncement by the learned trial Chief Judge that the 2nd Respondent lacks the constitutional powers to dissolve the 27 Local Government Councils in Imo State wherein the Appellants are the respective democratically elected Chairmen of the said councils before the expiration of their tenure. This pronouncement by the learned trial Chief Judge as reproduced above is not an obiter dicta as canvassed by the 1st and 3rd Respondents’ Counsel but the ratio decidendi of the case.
“Obiter” simply means in passing, incidental to, cursory, while the ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter dicta reflect, inter alia, the opinions of the judge which do not embody the resolution of the Court. In other words, the expression of a Court in a judgment must be taken in reference to the facts of the case which the Court is deciding the issues calling for determination and answers to those issues. The manner in which the Court chooses to decide the case is not all important. It is rather the principle the Court is deciding on. In the instant case, the first question sought for determination in the originating summons states as follows:
“Whether by the combined provisions of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 23 (1) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any other person acting on his behalf has the competence or power to dissolve democratically elected Local Government Councils in Imo State in respect of which the claimants are the Chairmen, through the 2nd Defendant’s maiden broadcast to the Imo people made on 6 June, 2011.”
The pronouncement made by the learned trial Judge in his judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and the answers to these issues. These are what should be looked for in any judgment. In the instant case, the Learned Chief Judge made a clear pronouncement that the 2nd Respondent lacks the constitutional powers to dissolve the 27 Local Government Councils in Imo State wherein the Appellants were the respective democratically elected Chairmen of the said Councils before the expiration of their tenure. Such a pronouncement by the learned trial Chief Judge cannot in the circumstances of this case to be an Obiter as argued and urged on us to so hold by the Learned Hon. Attorney General, Such a pronouncement is not a pronouncement that can be made in passing, incidental to or a cursory remark. It is a determination of the issue in controversy, see A. I. C. Ltd. V. NNPC (2005) ALL, FWLR (PT 270) 1945 at 1968 – 1969.
It is sacrosanct that the tenure of elected Local Government Chairmen or any office holder guaranteed under the 1999 Constitution as amended cannot be abridged or determined at the whims and caprices of the Executive. The exercise by the Governor of his executive powers is subject to the provisions of the Constitution and any law validly made by the State House of Assembly. In exercising his executive power, the Governor must act within the Constitution and any law validly made by the House of Assembly, In other words, there is nothing in our law like a blank and arbitrary power vested in or possessed by the Governor outside the Constitution and the Law, and such a power if exercised, will lead to executive lawlessness and recklessness which have often times, been decried and condemned by the Nigerian Society. The legal position is that, the Governor as the Chief Executive of a state is by the 1999 Constitution (as amended) vested with Executive powers of a state which extend to the execution and maintenance of the Constitution and all laws made by the State House of Assembly and to all matters with the responsibility to which the State House of Assembly, has powers to make laws and these Executive powers must be exercised by the Governor in accordance with the provisions of the Constitution and the law. The 2nd Respondent therefore lacks Constitutional powers to dissolve the 27 democratically elected Local Government Councils wherein the Appellants herein are the Chairmen.
The Governor swore to preserve, protect and defend the Constitution and not to mutilate it. Although, the House of Assembly has power to make laws, such laws must be in accordance with the provisions of the Constitution.
The House of Assembly has no power to make any law giving the Governor power to truncate a democratically elected Local Government Councils. All what I am saying is that there is nothing that subordinates the democratic system under Section 7 (1) of the 1999 Constitution on Local Government System to the whims and caprices of the Executive arm of the State or the legislative powers of the State House of Assembly. See Attorney General of plateau State V. Hon. Chief Anthony Goyol (2001) 16 NWLR (pt. 1059) 57; Attorney General of Bonue State v. Hon. Musa Umar (2008) 1 NWLR (pt 1068) 311; Attorney General of Abia State v. Attorney General of the Federation (2006) 16 NWLR (pt 1005) 265; Akpan V. Umah (2002) NWLR (pt 767) 701; Eze v. Governor of Abia State (2010) 15 NWLR (PT 1216) 329. Consequently, where a party acted contrary to, infringes upon or violates any of the provisions of the Constitution, such action is null and void and go to no effect whatsoever.
Learned Senior Counsel for the Appellants contended that the learned trial Chief Judge would have resolved question (ii) in the affirmative and would have granted reliefs (ii), (iv), (v) and (ix) in the originating summons. Question (ii) in the originating summons states as follows:
(ii) Whether pursuant to Section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of Local Government Administration law No. 15 of 2000 (as amended), the 2nd Defendant by himself or through any person acting on his behalf has the competence bi power to set up Transition Committees or direct any person to replace the Claimants who respectively are the democratically elected Chairmen of the 27 Local Government Councils in Imo State.
A declaratory relief is no more than a mere confirmation of what is already the state of affairs of what is likely to be in connection with the subject matter of the declaration. In other words, a declaration claimed must relate to some legal right or a legal interest of which the law will take cognizance. Therefore, all the reliefs in the suit, particularly reliefs (ii), (iv), (v) represent the existing state of affairs or what is likely to be in connection with the subject matter of the declaration sought and the Learned trial chief Judge ought not to have abdicated his responsibility but to make an outright grant of tie reliefs sought. The Appellants have shown that they have a right by virtue of being democratically elected Local Government council chairmen, and the court retains the power to declare contested legal rights subsisting or future of the parties represented in the litigation before it and not those of anyone else. See Oloruntoba Oju V. Dopanu (2008) 7 NWLR (pt. 1085) 1 a 36; International ile Industries (Nig.) Ltd v. Aderemu (1999) 8 NWLR (PT 614) 268. The power of a court of record to make a declaration where it is only a question of defining rights of two parties is almost unlimited. See Obi v. INEC (2007) 11 NWLR (PT 1046 560.
In the instant case, it is the conduct of the 2nd Respondent that is called into question in the originating summons. The 2nd Respondent conceded as follows at Page 171 of the record:
“Thus if the complainants were democratically elected then the Court should, it is submitted hold that the presumed exercise by the 2nd Defendant invalid.”
He further conceded thus at page 321 of the records;
“that once a Local Government is democratically elected it cannot be dissolved.
I agree therefore with the learned senior counsel for the Appellants that by these concessions and his pronouncement on the law, what other evidence does the learned trial chief Judge required before him? I am of the firm view that the failure of the Learned trial Chief Judge to grant particularly reliefs (ii), (iv) and (v) in the circumstance of the case occasioned grave miscarriage of Justice. This issue is therefore resolved in favour of the Appellants against the Respondents.
Issue 2
Whether the Court below was right when it held that the Appellants have not placed before it credible evidence to enable it grant the reliefs sought by the Appellants and upon which it dismissed the suit.
In arguing this issue, Learned Senior Counsel for the Appellants submitted that the refusal of the trial court to grant the reliefs sought in the originating summons was anchored on its concluding finding in its judgment that Exhibit D is not a Newspaper properly so called and as such it cannot be relied upon for the proof of the fact of the contents of the broadcast of the 2nd Respondent. He submitted that the Lower Court did not directly and categorically say anywhere in its judgment that it was not established that the dissolution of Local Government Councils was not proved by the Appellants. He submitted that the dissolution was duly conceded by the Respondents. Learned senior counsel referred to paragraph 6 (a) (i) of the 1st and 2nd Respondents’ counter affidavit to the motion for interlocutory injunction to submit that there was no denial of the said dissolution by the 1st and 2nd Respondents. He submitted that at all material times the said averments on oath were in the Court record and the Court below would have made use of those averments. He placed reliance on the following cases: Oyewole v. Akande (2009) 15 NWLR (pt. 1163) 119 at 148; Agbaisi v. Ebikorefe (1997) 4 NWLR (pt 502) 630; Akinola v. V. C. Unilorin (2004) 11 NWLR (Pt 885) 616; Afribank (Nig.) Plc. V. Yelwa (2011) ALL FWLR (PT 585) 296 at 313; and Agbo v. State (2006) ALL FWLR (pt. 309) 1380 (2006) 135 LRCN 808. He further submitted that once there is a voluntary acknowledgment made by a party or parties as in this case, of the existence of the truth of certain facts, the Court has a duty to act on that admission. He relied on the cases of Seismograph Service (Nig.) Ltd. v. Eyuafe (1976) 9-10 SC 135; Kaydee Ventures Ltd. V. The Hon. Minister of Federal Capital Territory (2010) ALL FWLR (PT 526) 460.
Learned senior counsel also submitted that the Appellants did not limit the medium of broadcast to radio and that the Appellants did not rely on Exhibit D in proof of the dissolution of the councils but rather in proof of the fact that the broadcast which was made on the 6th June, 2011 was subsequently published in a Newspaper on 9th June, 2011. Learned senior counsel also submitted that the 2nd Respondent in his counter affidavit in opposition to the originating summons neither denied the fact of dissolution nor any of the averments in the Appellants supporting affidavit and that for the 1st Respondent it was a general traverse of the Appellants supporting affidavit. On the effect of general traverse, the following cases were relied upon; Uguanyi V. NICON Insurance (2004) 15 NWLR (PT 897) 612 at 639; Etim v. Obot (2010) 12 NWLR (PT 1207) 108 at 171. He also submitted that the parties on the state of their affidavits did not join issues on whether Local Government Councils in Imo State were dissolved or not. On what is an issue in the determination of dispute, the following cases were referred to; Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 10 NSCC 300 at 304: Nwaogwugwu v. President Federal Republic of Nigeria (2007) ALL FWLR (PT 389) 1327 at 1344, to submit that Exhibit D was totally irrelevant with regard to issue whether Local Government Councils were dissolved in Imo State in so far as the averment on the fact of dissolution remained undenied. He also cited the cases of Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3 at 75 and Attorney General of Bendel State v. Attorney General of the Federation (1982) 3 NCLR 1 at 64 to submit that the Lower Court ought not unduly allow technicalities to deter it from making vital pronouncements.
Learned Senior Counsel further submitted that the contents of Exhibit D and the relevance of same were not challenged by the Respondents and that the undue importance attached by the Court below to the issue of proper custody was wrong in view of the pronouncement of the Supreme Court in the case of Torti v. Ukpabi (1934) ANLR 185. It is also submitted that Exhibit D is a credible evidence which the Court below had a duty to act upon in coming to a just decision, citing the case of In Time Connection Ltd. v. Ichie (2010) ALL FWLR (PT.543) 1879 at 1891 to further submit that Exhibit D is a credible evidence and the Court was urged to so hold and to resolve issue 2 in favour of the Appellants.
In his own response, the Learned Attorney General for the 1st Respondent submitted that the finding and conclusion of the learned trial Chief Judge that Exhibit D is not a newspaper properly so called and as such cannot be relied upon for the proof of the facts of the contents of the broadcast of the 2nd Respondent is correct, valid and borne out of the evidence presented before the Court. He submitted that credible evidence in law means evidence deserving to be believed, trusted or taken seriously. He relied on the cases of Egbesimba v. Onusuruike (2002) FWLR (PT 1123) 1386 at 1429; Agbi v. Ogbeh (2006) ALL FWLR (PT 329) 941 at 969. He submitted that the learned trial Chief Judge rejected the averments in paragraphs 13 and 14 of the Appellants supporting affidavit in the originating summons because the averments lack credibility.
On what a broadcast means, the Learned Attorney General referred to the case of Eno V. Nigeria Copyright Commission (2010) ALL FWLR (PT 547) 604 at 621. He also referred to paragraph 6 of the Appellants supporting affidavit on interim injunction which is the same with paragraph 13 of the affidavit in support of the originating summons to submit that a broadcast does not mean publication in a newspaper in view of the definition of ‘broadcast’ in Eno’s case (Supra). That the broadcast was made on Exhibit D. Learned Counsel referred to the finding of the learned trial Court, on Exhibit “D” at pages 334 to 338 to submit that Exhibit D is not credible evidence on which the Court can act upon in the determination of the reliefs claimed by the Appellants. It is also his view relying on the case of Abacha V. Fawehinmi (2000) FWLR (PT 4) 592 that for a document to be relied upon in a Suit it must be tendered and admitted otherwise it could not form part of the proceedings in the Suit. That a Court cannot go on a voyage of discovery in search of evidence not presented before the Court. He also referred to the case Abubakar v. Yar’aduwa (2009) ALL FWLR (PT 547) 1 at 156 to submit that the publication of 6/6/2011 either via a radio or newspaper by the Appellants were not proved to the satisfaction of the learned trial Chief Judge. It is also his view that Newspaper reports are generally inadmissible as the evidence of facts recorded therein are that uncertified or improperly certified newspaper is in admissible in evidence placing reliance on the following case: Ngige V. Obi (2006) 14 NWLR (PT 999) 1; RNHW V. Sama (1991) 2 NWLR (PT 171) 64; Omorinbola V. Military Governor Ondo State (1995) 9 NWLR (PT 418) 201; Gabai v. INEC (2009) ALL FWLR (PT 449) 594 at 612-619. Still dwelling on a publication in a newspaper and broadcast, the following cases were referred to; S.C.C. Ltd. v. Our line Ltd (2001) FWLR (PT 1445) pt 1457; Okoh v. Igwesi (2005) FWLR (PT 261) 891 at 902; Yero v. Union Bank of Nigeria Ltd. (2000) 5 NWLR (PT 657) 470 at 478 – 479; and INEC v. A.C. (2009) ALL FWLR (PT 480) 732 at 799.
In his response, the Learned Senior Counsel for the Appellants submitted that the learned trial Chief Judge in his finding that the Governor lacks the Constitutional power to dissolve the elected Local Government Councils referred to three authorities to wit: A.G. Plateau State V. Goyol (2007) 16 NWLR (PT 1059) 67; A.G. Benue State V. Umar (2008) 1 NWLR (pt 1068) 311; Abubakar v. A.G. Federation (2007) 3 NWLR (pt 1022) 601 and submitted that in none of the authorities was a shred of evidence given other than that there was a broadcast of dissolution of the Councils and the affected persons proceeded to Court to assert their rights to remain in office. Until their statutory tenure expired, the question of evidence did not arise. He submitted that in the interpretation of Constitution, a Court should not decline its interpretative jurisdiction because of non-compliance with the provisions of a mere statute, citing A.G. Bendel State v. A. G. of the Federation (1982) 3 NCLRI. He also submitted that Government did not deny the issue of dissolution of the Councils just as in the instant appeal. He submitted that it is not for the Court to create a case for the parties where they have not made for themselves to say there is no proof of admitted facts. That the decision of the Chief Judge made the so called Newspaper Act much more important than the 1999 Constitution (as amended) which was brazenly breached by the 2nd Respondent in purporting to dissolve the Local Government Councils. The Court was urged to hold otherwise.
I need to restate here that this suit is being contested under originating summons. In actions commenced by way of originating summons facts do not have pride of place in the proceedings. It is the affidavit evidence filed by the respective parties that is considered in the determination of the issues for determination. It is unlike a situation where trial is commenced by writ of summons where the facts are regarded as holding pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position where facts do not play a central role but an infinitesimal role. An affidavit duly sworn or deposed to before a Court of law is the only documentary evidence available before the Court in determination of the issues raised for determination in the originating summons. See Etim V. Obot (2010) 12 NWLR (pt 1207) 108 at 171; Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3 at 75. It is therefore clear that the affidavits filed by parties in actions commenced by originating summons take the place of evidence and any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the Court can act.
In the instant case, the copious facts on the dissolution of the 27 democratically elected Local Government Council Chairmen were not denied by the Respondents. The 1st Respondent in his counter affidavit to the originating summon only made a general traverse while the 2nd Respondent neither denied paragraph 13 of the Appellants’ affidavit in support of the originating summons nor any of the averments therein contained. This means that none of the Respondents stated categorically that there was no dissolution of the 27 Local Government Councils. The real issues placed before the Court for adjudication are those raised in the originating summons and these are the issues that the Court must address. It is not for the Respondents to go into extraneous matters which are not within the competence of the Court to pronounce on them as they are totally outside the scope of the issues raised for determination in the originating summons. A Court must confine itself to the issues raised by the plaintiff in the originating summons. In the instant case therefore, the learned trial Chief Judge having resolved the first issue for determination, in favour of the Appellants, he has no business going into the extraneous issues outside the confine of the Appellants’ originating summons. If he had wanted to go into all these extraneous matters, he would have called on the parties to file pleadings. The issue that the Appellants were not democratically elected as contended by the Respondents is not and cannot be an issue to be adjudicated upon by the learned trial Judge.
Commencement of action by originating summons is a procedure which is used where the facts are not in dispute or there is no likelihood of their being in dispute. Therefore, originating summons is not for matters of such controversy that the justice of the case would demand the settling of pleadings. The main advantage of resort to use of originating summons in appropriate cases is its simplicity resulting from the elimination of pleadings and as such is not supposed to be used by parties in hostile action. In other words, originating summons is only applicable in circumstances where there is no dispute on question of fact or likelihood of such dispute.
In the instant case, the various Respondents filed counter affidavits raising extraneous issues therein while the question in controversy for determination was the construction of Section 7 (1) of the 1999 Constitution (as amended) and 23 (1) of the Imo State Local Government Administration Law of No. 15 of 2000 (as amended). I am therefore of the considered view that the Respondents having not specifically denied the Appellant’s averment on the lack of power of the 2nd Respondent to dissolve the democratically elected Chairmen, and having so found that the 2nd Respondent lacks the constitutional powers to dissolve democratically elected Local Government Councils in Imo State, then the question of proof by credible evidence for the reliefs sought to be granted and of Exhibit “D” does not arise in the circumstances. Exhibit “D” was not relied upon in proof of the dissolution of the Councils but rather in proof of the fact that the broadcast which was made on the 6th June, 2011 was subsequently published in a Newspaper on 9th June, 2011.
As I said earlier in this judgment, the 1st and 2nd Respondents did not deny the fact of dissolution of the 27 democratically elected Chairmen wherein the Appellants are the Chairmen. It is trite that once there is a voluntary acknowledgment made by a party or parties as in the instant case, of the existence of the truth of certain facts, the Court has a duty to act on that admission. See Section 123 of the Evidence Act 2011. See also Seismograph Services (Nig.) Ltd. v. Eyuafe (1976) 9 – 10 SC 135; Kaydee Ventures Ltd. V. The Hon. Minister of Federal Capital territory (2010) ALL FWLR (Pt. 519) 1079; Skye Bank Plc. V. Akirpelu (2010) ALL FWLR (PT 526) 460.
I am therefore of the considered view that in matters calling for decisions on issues relating to the constitution, the court ought not unduly allow technicalities to deter it from making vital pronouncements. For some times now, the courts have moved away from the regime or domain of doing technical justice to the regime or domain of doing substantial justice. This is in keeping with the jurisdiction of the wider world and its legal system. The need for courts of law to do substantial justice becomes more imperative when considering the provisions of the constitution; the fons et origo of any democracy. See Attorney General of Bendel State v. Attorney General of the Federation [1982] 3 NCLR 1; Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3.consequently, this issue is resolved in favour of the Appellants. The appeal succeeds as it has merit. The judgment of the trial chief Judge delivered on the 3rd August, 2011 is hereby set aside. I now therefore grant the following reliefs as follows:
(i) It is hereby declared that pursuant to section 7(1) of the 1999 Constitution (as amended) and section 23(1) of the Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Respondent had no competence or power, either by himself or through any person acting on his behalf to dissolve democratically elected Local Government councils in Imo state in which, the claimants are Chairmen, through the 2nd Respondent’s maiden broadcast to the Imo people made on 6th June, 2011.
(ii) It is hereby declared that pursuant to Section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of the Local Government Administration Law No. 15 of 2000 (as amended), the 2nd Respondent by himself or through any person has no competence or power to set up or Constitute Transition Committees to replace the Appellants who were respectively the democratically elected Chairmen of the 27 Local Government Councils in Imo State.
(iii) It is hereby declared that by virtue of the provisions of Section 23 (1) of the Local Government Administration Law No. 15 of 2000 (as amended), the Appellants have a guaranteed tenure of office as democratically elected Chairmen commencing from the date of inauguration on 9th August, 2010.
(iv) It is also hereby declared that the Appellants are still the democratically elected Chairmen of their respective Local Government Councils until their tenure of office expires.
(v) The 2nd Respondent by himself, his servants, agents, privies or whomsoever are hereby restrained from interfering with the rights and privileges of the Appellants as democratically elected Chairmen of the 27 Local Government Councils of Imo State and or appointing persons or constituting Transition Committees to take over the offices of the Appellants or to replace them until they serve out their tenure.
That is the judgment of the Court.
There shall be costs of this Suit assessed at N100, 000.00 jointly and severally against the Respondents in favour of the Appellants.
CROSS APPEAL
The 2nd Respondent also not satisfied with the judgment of the Court below has appealed to this Court vide a Notice of Cross Appeal dated and filed on the 29th August, 2011, containing one ground of appeal complaining against that part of the judgment that says “…… it is axiomatic that the 2nd Respondent does not possess the Constitutional powers to dissolve the Local Government Councils before the expiration of the elected Local Government Council Chairmen ….”
The Cross Appellant filed a brief of argument dated 2/5/2012 and filed on the 4/5/2012 but deemed properly fifed on the 9/5/2012. Therein the Cross Appellant formulated this lone issue for determination to wit:
“Whether the Learned trial Court was right to have pronounce by way of an Obiter that “the 2nd Defendant does not possess Constitutional powers to dissolve the Local Government Councils before the expiration of the elected Local Government councils chairmen” without pronouncing on the competency of the suit itself so raised by the Respondents/ Cross Appellant.”
The Learned Senior Counsel for the Appellants/Cross Respondents Dr. Livy Uzoukwu, SAN urged the Court to consider that there is no any Notice of Cross Appeal filed in respect of which the Cross Appellant is calling upon the Court to consider.
I have gone through the length and breadth of the Records of Appeal in respect of this appeal compiled and transmitted on the 25/10/2011 and also the supplementary record filed and neither have I come across any such Notice of Cross Appeal filed by the 2nd Respondent/Cross Appellant nor was any brought to the attention of the court by the 2nd Respondent/cross Appellant’s counsel at the hearing of the appeal.
In the circumstances, there cannot be a hearing of the cross appeal without a Notice of the Cross Appeal. It is the Notice of the Cross Appeal filed by the Cross Appellant that gives this Court the jurisdiction and competence to hear and determine the Cross Appeal. In the absence of such Notice of Cross Appeal properly filed before the court, the court cannot delve into the substance of the Cross Appeal as it lacks the competence and jurisdiction to do so. Consequently, the purported cross appeal is accordingly struck out. I make no order as to costs.
MOJEED A. OWOADE, J.C.A: I read in draft the judgment delivered by my learned brother UWANI ABBA AJI, JCA. I agree that the appeal has merit and it is allowed. I also agree that in the absence of a Notice of Appeal (Cross-Appeal) the Cross-Appeal of the 2nd Respondent was rightly struck out.
In the instant case, I join my learned brother to say that the Governor of the State does not have the powers to dissolve elected Local Government Councils or truncate a democratically elected Local Government Council. This is because, the system of local government by democratically elected Local Government Council is guaranteed under the provisions of Sections 7 and 8 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The Constitution is the basic law or the ground norm in Nigeria and its provision makes it supreme so that failure to follow its provisions renders whatever was done contrary to it unconstitutional.
See, Adediran V. Kinterland Transport Ltd. (1999) 9 NWLR (Pt. 214) 155 at 179, Erekanure v. The State (1993) 5 NWLR (Pt.244) 385 at 393.
The Governor swore to preserve, protect and defend the Constitution and not to mutilate it. Any action of an Executive Governor Contrary to the provisions of the Constitution are null and void and of no effect whatsoever.See, e.g. A.G. of Plateau State & Ors. V. Hon. Chief Anthony Goyol & Ors. (2007) 16 NWLR (Pt. 1059) 57 at 94.
The Executive Governor of the State cannot therefore set up administration for the Local Government in the tenure of a democratically elected Local Government unrecognized by the Constitution unless perhaps there is a clear State of Emergency calling for extra-ordinary action. For this and the fuller reasons given in the judgment of my learned brother UWANI ABBA AJI, JCA, I also allow the appeal.
I equally strike out the cross-appeal of the 2nd Respondent which has no foundation, in the sense that it was not propelled by any Notice of Appeal. This court lacks jurisdiction to entertain the Cross-Appeal of the 2nd Respondent.
HARUNA M. TSAMMANI, J.C.A: I had the advantage of reading in draft form the judgment just delivered by my learned brother, UWANI MUSA ABBA AJI, JCA (Presiding).
The main issue in this appeal in my view, is whether or not the 2nd Respondent has the Constitutional powers to dissolve the democratically elected Local Government Councils of Imo State, in view of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended). I wish to point out that it is in observance of Section 7(1) of the 1999 Constitution (supra), that the Imo State House of Assembly promulgated the Imo State Local Government Administration Law No. 15 of 2000 (As amended). By the same Constitutional provision therefore, a person can only be a Local Government Chairman through the democratic process and not by stealth or the whims or say so of any person. The democratic process envisaged in the Constitution, means through an election duly conducted by a constitutionally recognized body charged with the powers to conduct such election. Invariably, it is through that democratic process or as stipulated by the Constitution or the Law validly made by the State House of Assembly that such a democratically elected Council can be legitimately dissolved and persons occupying elective offices vacate office.
In the instant case, the learned trial Chief Judge rightly found that the Imo State Governor (2nd Respondent), has no Constitutional powers to dissolve the 27 democratically elected Local Government Councils of Imo State, wherein the Appellants were elected Chairmen. He however, shied away from pronouncing on the ultimate consequence of the 2nd Respondent’s breach of power, apparently on the grounds that the Appellants failed to prove that the said Local Government Councils were dissolved. It is clear that the reliefs as claimed by the Appellants are declaratory reliefs, and the Appellants had the burden to prove that they are entitled to same on the strength of their own case, and could not succeed, even on admissions by the adversary, if they fail to lead credible evidence. It is equally the law that, a Plaintiff may also rely on the weakness of the Defendant’s case to strengthen his own case.
The Respondents in their various affidavits did not deny that the 2nd Respondent dissolved the Local Government Councils. They in fact deposed that the councils were indeed dissolved, but proceeded to proffer justification for the action of the 2nd Respondent, which are on grounds totally extraneous to the proceeding before the lower court. Indeed, issues were never joined on the issue of dissolution of the Local Government Councils. What was in contention was whether the 2nd Respondent has the Constitutional or even statutory powers to act as he did. See INAKOJU v. ADELEKE (2007) ALL FWLR (Pt. 353) pg. 3; NWAOGWUGWU V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (pt.389) pg.1327 and A.G; PLATEAU STATE v. GOYOL (2007) 16 NWLR (Pt.1059) pg,67. I therefore find that the learned trial Chief Judge erred in law when he held that the Appellants failed to proof the fact of dissolution of the Local Government Councils.
On the whole therefore, and for the detailed reasons proffered in the lead judgment, I am of the view that this appeal has merit. It is consequently allowed. The judgment of the trial Chief Judge delivered on the 03/8/2011 is hereby set aside.
I abide by all the orders made in the lead judgment, including the order on the purported Cross-Appeal, and the order on costs.
Appearances
Dr. Livy Uzoukwu, SAN, with Ngozi Olehi, Esq, Mahakwe Madu, Esq., Obinna Nwachukwu, Esq., and Chikezie Esq.For Appellant
AND
S. A. Njoku, Esq., Hon. Attorney General, Imo State with M. C. Uwasomba, Esq. (DCL), N. C. Eroninu (Mrs.), K. C. Nwokor, Esq. (CSC)
F. A. Aofolaju, Esq., with M. U. Nlemadim, Esq., and C. O. C. Emeka-Izuma, Esq.
C. O. Ejiogu, Esq. with O. B. Iroh, Esq.
Tochukwu Odon, Esq.For Respondent
