HON. CALEB TABWASA & ORS v. ADAMAWA STATE GOVERNMENT & ORS (2019)

HON. CALEB TABWASA & ORS v. ADAMAWA STATE GOVERNMENT & ORS

(2019)LCN/12732(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of February, 2019

CA/YL/90/2017

RATIO

JURISDICTION: WHETHER COURTS HAVE JURISDICTION TO INQUIRE INTO ITS OWN JURISDICTION

“Courts have jurisdiction to inquire into its own jurisdiction. It is never too late or belated to address such issues whenever the authority of a Court is brought to question in any given situation. Hence issue of the exercise of jurisdiction by the Courts can be taken even on appeal as in this instant appeal case. See ATTORNEY GENERAL, BENUE STATE v. UMAR (2008) 1 NWLR (Pt. 1068); OREDOYIN v. AROWOLO (1989) 4 NWLR (Pt. 114) 172.” PER SAIDU TANKO HUSAINI, J.C.A.

CONSTITUTION: WHETHER AN ACT OF GOVERNMENT CAN UNDERMINE THE CONSTITUTION

“This instant case on appeal is distinguishable from Goyol case above. However in GOVERNOR EKITI STATE v. OLUBUNMI (2017) NWLR (Pt. 1551) 1, 35, the apex Court held: ‘… any action of the governor which has the capacity of undermining the Constitution (as in the instant case where the 1st Appellant purportedly ended the tenure of the Respondents Councils, dissolve them and replace them with Caretaker Committees) is tantamount to executive recklessness which will not be condoned. It has been argued that by Law No. 4 of 2004, there is no provision creating a Caretaker Committee hence the case on hand is distinguishable from the case in ATTORNEY GENERAL, PLATEAU STATE v. GOYOL (SUPRA). I agree with that submission of counsel for the respondents.” PER SAIDU TANKO HUSAINI, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

1. HON. CALEB TABWASA
CHAIRMAN, GIREI LOCAL GOVERNMENT COUNCIL
2. DR. MUSTAPHA SAIDU
CHAIRMAN, SONG LOCAL GOVERNMENT COUNCIL
3.SETH CROWTHER
CHAIRMAN, LAMURDE LOCAL GOVERNMENT COUNCIL
4. SANNI RABADU
CHAIRMAN, YOLA-SOUTH LOCAL GOVERNMENT COUNCIL
5. ALHAJI JAURO HAMAN
CHAIRMAN, FUFORE LOCAL GOVERNMENT COUNCIL
6. HON. STEPHEN GEBGON
CHAIRMAN, NUMAN LOCAL GOVERNMENT COUNCIL
7. HON. JAMES OKOSI
CHAIRMAN, DEMSA LOCAL GOVERNMENT COUNCIL
8. HON. EMMANUEL TSAMDO
CHAIRMAN, MADAGALI LOCAL GOVERNMENT COUNCIL
9. HON. JOEL DIKANWA
CHAIRMAN, GUYUK LOCAL GOVERNMENT COUNCIL
10. HON. BENSON ALI
CHAIRMAN, SHELLENG LOCAL GOVERNMENT COUNCIL
11. HON. ERIC GANDAPA
CHAIRMAN, HONG LOCAL GOVERNMENT COUNCIL
12. HON. REVD. HABILA ISTIFANUS
CHAIRMAN, GANYE LOCAL GOVERNMENT COUNCIL
13. HON. IBRAHIM MAGAJI
CHAIRMAN, TOUNGO LOCAL GOVERNMENT COUNCIL
14. PEOPLES’ DEMOCRATIC PARTY Appellant(s)

AND

1. ADAMAWA STATE GOVERNMENT
2. ADAMAWA STATE HOUSE OF ASSEMBLY
3. ATTORNEY GENERAL OF ADAMAWA STATE Respondent(s)

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment delivered at the High Court of Justice of Adamawa State in Suit No. ADSY/2/2017 on the 21st March, 2012. The Appellants who were Plaintiffs at the said High Court of Adamawa State commenced proceedings against the Defendants now Respondents by way of the Originating Summons filed on the 11th January, 2007. In support of the Originating Summons is the affidavit of 9 paragraphs. However, by leave granted at the same High Court on the 5th January, 2012 the Appellants then as Plaintiffs had cause to amend the Originating process in terms of the processes contained at pages 72 ? 99 of the Record of Appeal, by which the Plaintiffs at the trial Court sought the determination of the following questions, namely:

1. Whether the amendment of the provision of Section 23 of the Local Government system, establishment and administration of Local Government Council Law, 2000 as amended by the Adamawa State Local Government establishment and administration (Amendment) Law, 2004 reducing the tenure of office of the Plaintiffs from three (3) to the two (2)years is constitutional and therefore justifiable in the circumstance?

2. Whether having dissolved the Plaintiffs from holding office in January 2007 the Defendants especially the 1st Defendant had not cut-short the term of office of the Plaintiffs for the reminder of six months period.

3. Whether the Plaintiffs are not entitled to the payment of their salaries, arrears and allowances for their unexpired terms of six months having been so dissolved before the end of their lawful tenure.?

Consequent upon the questions so raised above, the Plaintiffs before the trial Court sought for the reliefs hereunder, namely:
‘1. A declaration that the passage of the Adamawa State Local Government and Administration (Amendment) Law 2004 in so far as it reduced the tenure of office of the Plaintiffs from three (3) years to two and half (2) years, is unconstitutional, unlawful and cannot be justified in a democratic setting and therefore null and void.

2. A declaration that the dissolution of the Plaintiffs in January 2007 from holding office for the remainder of six months was therefore illegal, null and void.

3. A declaration that the Plaintiffs are entitled to be paid their salaries, allowances and benefits for the remainder of the six months period in which they were not allowed by the Defendants to serve, having been dissolved.

4. An order directing the 1st Defendant to compute and effect the payment of all the Plaintiffs salaries, allowances and the benefits for the said six months forthwith.”

The 1st to 3rd Respondents filed their joint counter-affidavit and denied the claim as Defendants at the trial Court.

FACTS OF THE CASE

The 1st & 2nd, 4th & 13th Appellants were elected Chairmen of their various Local Government Councils in Adamawa State. The 14th Appellant is the Political Party on whose platform the Appellants contested and won election as Chairmen of their Local Governments. Sometimes on the 10th July, 2004 the Appellants except the 3rd, contested election, won and were sworn into offices as Chairmen of their respective Local Government Councils on the 14th July, 2004. However on the 14th January, 2007 (about 2 years 6 months) later, the 1st Respondent dissolved the elected officials of the Local Government Councils and in their stead, a Management or Caretaker Committee was put in place to run the affairs of the 21 Local Councils on the State.

As at the 10th July, 2004 when the Appellants (except the 3rd Appellant) were elected, there was a law put in place and known as the Adamawa State Local Government System Establishment and Administration of Local Government Council (amendment) Law No. 4 of 2004. Sometimes in January, 2007 the Appellants were requested to vacate their office, in line with the said law which provide for a 2 years tenure for local government elected officials. The 1st and 3rd Respondents then went ahead to appoint a Caretaker Committee to run the Local Governments. The Appellants visibly coked by the turn of events approached the High Court of Taraba State to seek the validity and constitutionality of Law No. 4 of 2004 vis–vis Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The trial High Court took counsels’ final addresses and in the considered Judgment delivered on the 21/03/2012 dismissed the claim, vide the Judgment at pages 95 – 105 of the record.

The Appellant, obviously not pleased with the outcome of the proceedings at the trial High Court sought for and by Order of Court was granted extension of time to appeal that decision. The Notice of Appeal dated and filed on the 13th March, 2017 has four (4) Grounds of Appeal. See the Record of Appeal at pages 110 – 114.

By leave of Court sought and granted on the Appellants filed an amended Notice of Appeal by incorporating in it additional grounds of appeal vide the process filed on the 7th August, 2017. The Said process that is, the amended Notice of Appeal was on the 27th October, 2017 deemed as properly filed and served. In the amended Notice of Appeal are 8 (eight) grounds. I will endeavour to reproduce these grounds along with the particulars thus:-

GROUND 1:
The Learned Trial Judge erred in law when he declined to grant the Plaintiff’s reliefs in the Originating Summons on grounds/defences or reasons not put forward or relied on by the Defendants to wit:

i. That the Plaintiffs did not approach the Court until the end of their tenure.
ii. That the reliefs sought have been overtaken by event.
iii. And that the suit itself amounts to an academic exercise.

Without affording the Plaintiffs the opportunity to address the Court on same and thereby denied the Plaintiffs right to a fair hearing.

PARTICULARS OF ERROR
(a) The reasons for which the trial Judge declined to grant Plaintiff reliefs were not put forward by the Defendants in their affidavits.
(b) Neither of the parties have the opportunity to address the Court on these issues.
(c) The trial Judge had earlier in the proceeding held that issues of interpretation of the Constitution or a law cannot be a mere academic exercise.
(d) The Plaintiffs ought and deserve to be heard before the lower Court can refuse their claims on these reasons.
(e) The action of the trial Judge violates the Plaintiffs right to fair hearing enriched in Section 36 of the Constitution of Nigeria, 1999 (as amended) particularly the rules of Natural justice.

GROUND 2:

The Learned Trial Judge erred in law when he held that the Plaintiffs’ suit amounts to an academic exercise.

PARTICULARS OF ERROR
(a) The Plaintiff’s claim is rooted in the propriety of Section 23 of the Local Government System, Establishment and Administration of Local Government Councils Law 2000 as amended by the Adamawa State Local Government Establishment and Administration (Amendment) Law 2004.
(b) The two laws were extant at all material times to the Plaintiff suit.
(c)The effect of the amendment on the Plaintiffs’ tenure vis–vis their salaries, benefits and other entitlements are live issues.

GROUND 3:
The Learned Trial Judge erred in law and occasioned serious miscarriage of justice when he held as follows:

‘As for the payment of salaries and allowances prayed by the Plaintiffs it is my view that this remedy is not available in a vase of this nature.’

PARTICULARS OF ERROR
(a) The claim for salaries, allowances and other benefits are open to the Plaintiffs particularly given the facts that their tenure had expired before the Judgment of the Court was delivered.
(b) There was nothing in the nature of the case that prevents the trial judge to grant the Plaintiffs’ claim for salaries and allowances.

GROUND 4:
The Learned Judge erred in law when he held that the Plaintiffs were entitled to their severance gratuity but refused to grant same because the Plaintiff did not claim it.

PARTICULAR OF ERROR
(a) The Plaintiffs in relief Nos. 3 and 4 of the Originating Summons claim that they are entitled to be paid their salaries, allowances and benefits and an order directing the Defendants to compute and effect the payment of all their salaries, allowances and benefits of the 6 months.
(b) Severance gratuity after the end of the Plaintiff?s tenure is benefits accruable to the Plaintiffs and which the Plaintiffs are entitled to.
(c) The trial Judge was wrong to have held that severance gratuity was not specifically claimed by the Plaintiff.

GROUND 5
The Learned Trial Judge erred in law when he dismissed the Plaintiff?s claim on the ground that the suit amount to an exercise in futility and an academic exercise.

PARTICULARS OF ERROR
(a)The Plaintiff’s claim challenges the constitutionality of the amendment of Section 23(3) of the Adamawa State Local Government System, Establishment and Administration of Local Government Council?s Law 2000 which guarantee the Plaintiffs 3 years tenure.

(b) The High Court is vested by Section 6(a) and (b) of the 1999 Constitution of Nigeria (as amended) with the power to determine the constitutional questions raised by the Plaintiffs not minding whether their tenure has ended or not.

(c) The Plaintiff?s action is not an exercise in futility or an academic exercise because it questions or raises a complaint about the legality or illegality of the action of the Defendants to enact a law cutting down their tenure from 3 years to 2 years.

GROUND 6
The Learned Trial Judge erred in law when he failed to declare the Adamawa State Local Government System, Establishment and Administration of Local Government Councils (Amendment) Law 2004 which truncated the Plaintiff’s 3 years tenure, reduced it to 2 years and put in place a Caretaker Committee for the Local Government as unconstitutional, null and void in view of Section 7(1) of the Constitution of Nigeria 1999 (as amended) and instead held that the reliefs sought by the Plaintiffs have been overtaken by events.

PARTICULAR OF ERROR

(a) The unconstitutionality of the amendment of the provision of Section 23(3) of the Adamawa State Local Government System, Establishment and Administration of Local Councils Law No. 4 of 2000 by the Adamawa State Local Government System, Establishment and Administration of Local Government Councils (Amendment) Law 2004 which cut down or reduces the tenure of office of the Plaintiff (from 3 to 2 years) as their various Local Government Council Chairman and replaced them with caretaker committee was not overtaken by any event.

(b) Plaintiffs never asked for reinstatement to their offices as a relief.

(c) Plaintiffs’ salaries for the remainder of about seven (7) months for which their tenure ought to run was a live issue for the Trial Judge to decide and setting up a caretaker committee to replace them.

(d) Plaintiffs’ salaries for the remainder of about seven (7) months for which their tenure ought to run was a live issue for the Trial Judge to decide and setting up a caretaker committee to replace them.

GROUND 7
The Learned Trial Judge erred in Law and thereby occasioned a miscarriage of justice when he held that Plaintiffs did not deem it necessary to challenge Law No. 4 of 2004 which reduced their tenure from 3 years to 2 years until they have completely run the 2 years provided by that law No. 4 of 2004.

PARTICULARS OF ERROR

(a) Plaintiffs approached the Court three (3) days to their purported dissolution to challenge the constitutionality of the law enacted by the Defendants which replaced the Plaintiffs with a caretaker committee.

(b) The Defendants claimed for the first time according to the Plaintiffs in paragraph (viii) of the affidavit in support of their amended Originating Summons that they dissolved the Plaintiffs pursuant to Law No. 4 of 2004.

(c) Plaintiffs obtained an ex-parte order on 13th January 2007 (a day before Defendants dissolved Plaintiffs) restraining the Defendants from reconstituting the Plaintiffs.

(d) Plaintiffs would not be expected to react to Law No. 4 of 2004 since they are not aware of its existence until their impending dissolution by the Defendants.

GROUND 8
The Learned Trial Judge erred in law when he failed to answer all the questions determination in the affirmative and grant all the reliefs sought by the Plaintiffs, and thereby occasioned a miscarriage of justice.

PARTICULARS OF ERROR

(a) The Adamawa State Local Government System, Establishment and Administration of Local Government Council (Amendment) Law 2004 is unconstitutional, null and void same being inconsistent with Section 7(1) of the Constitution of Nigeria, 1999 (as amended).
(b) The enactment of the amendment Law No. 4 of 2004 replacing elected Local Government Chairmen with Caretaker Committee is ultra vires the power of the 1st and 2nd Defendants.
(c) The Plaintiffs are entitled to enjoy three (3) years tenure as provided for under the Local Government Law No. 4 of 2000 and their dissolution by the Defendants after spending 2 years is unlawful.
(d) Plaintiffs are entitled to their salaries for the remaining period of six months and other entitlements.

Parties proceeded, thereafter to file and exchange briefs of argument upon the transmission of record of Appeal to this Court. The Briefs before the Court are:

1. Amended Appellants’ Brief of Argument dated and filed on the 3rd April, 2018. Same was deemed on the 26th June, 2018.

2. 1st and 3rd Respondents’ Amended Brief of Argument dated and filed on the 3rd October, 2018 and the same was deemed on the 4th April, 2018 as properly filed and served.

3. 2nd Respondent’s Amended Brief of Argument dated and filed on 1st August, 2018 was deemed on the 4th October, 2018.

4. Appellants’ Reply to the 1st and 3rd Respondents’ Amended Brief of Argument dated and filed on the 18th October, 2018.

5. Appellant’s Reply to the 2nd Respondents’ Reply to the 2nd Respondents’ Amended Brief of Argument dated and filed on the 18th October, 2018.

Added to that, is the 2nd Respondents? Notice of Preliminary Objection dated the 16th January, 2018 and filed on 17th January, 2018. In the said Notice of Objection, it was contended that:

1. The trial Court lacks the necessary jurisdiction to hear and determine this suit as it did.

2. That the suit be struck out before the trial Court for want of jurisdiction.

The Notice of Objection was predicated on the 2 (two) grounds listed in the motion, namely:-

(i) That the Constitution of the Federal Republic of Nigeria gave power to the 2nd Respondent/appellant (Adamawa State House of Assembly) to make law with regard to Local Governments.

(ii) That reliefs 3 and 4 of the Appellant as Plaintiffs before the trial Court are within the exclusive jurisdiction of the National Industrial Court of Nigeria by virtue of Section 254C(1)(k) of the 1999 Constitution of Federal Republic of Nigeria (as amended).

In response to the Preliminary Objection, the Appellant filed a Reply/Brief dated the 3rd April, 2018. The appeal came up on the 20th November, 2018 for hearing. The issue surrounding the Preliminary Objection was however put on the front burner, hence same was taken and same argued in lamine.

The 2nd Respondent raised just one issue for the determination of Court and the issue being ‘whether having regard to the Plaintiffs’ claims before the trial Court and the provisions of Sections 4(7), 7(1) and 254C(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended) (Third Alteration Act), the trial Court has the jurisdiction to entertain this suit as it did.

Learned counsel speaking for the 2nd Respondent argued stating affirmatively that the Court below or the trial Court lacked the jurisdiction to entertain the case before it in that the powers to make laws for the peace, order and good government of a state is vested in the House of Assembly of that State by virtue of Sections 4(6) and 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He argued that unless the legislature veered off tangent in its legislative duties, no Court of law can stop it from carrying out its legislative function or place limitations to it as to the laws, the legislature (in this case the Adamawa State House of Assembly) can pass. This being the case, the trial Court, it is argued, lack the jurisdiction to entertain as it did, this case on appeal especially, so, that the Appellants did not point to any infractions to the existing Constitution to warrant the trial Court assume jurisdiction. He cited and relied on decisions, including INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 at 667; EZEOKE v. MAKARFI (1982) 3 NCLR 663; INEC & ANOR v. MUSA & ORS. (2003) NWLR (Pt. 806) 72, 157.

The second leg of his submission under those preliminary issues relate to the nature of reliefs sought at the trial Court. In reference to Section 254C(1)(k) of the Constitution, it was argued that it is only the National Industrial Court that is constitutionally guaranteed to grant the reliefs itemized as (3) and (4) in the Originating Summons and not the High Court, like the trial Court. The case of OLUFUNSHO v. GLOBAL SOAP & DETERGENT INDUSTRIES LTD was cited and relied on. He argued that the High Court or the Court below cannot entertain matters relating to or connected with payment of salaries, allowances and other benefits that the Appellants are seeking.

The Appellant argued per contra vide the submissions contained in their Reply brief. In it, it was argued, that the Adamawa State House of Assembly threw caution to the winds when it purported to enact a law which did not only obrogate the tenure of a democratically elected officials of the relevant Local Governments but went reduced the tenure of a democratically elected officials of the relevant Local Governments and went ahead to put in place, a Caretaker or Management Committee to run the affairs of the Local Councils for 6 months contrary to Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. In those circumstances, it was argued, the High Court can intervene and interpret and apply the laws accordingly. He referred us to the decision in Governor of EKITI STATE v. OLUBUNMI (2017) NWLR (Pt. 2551) 1; ATTORNEY GENERAL PLATEAU STATE v. GOYOL (2007) 16 NWLR (Pt. 1059) 57. He argued further stating that the 2nd Respondent having thus acted contrary to the letters and spirit of the Constitution, the Appellants can approach the Courts and ventilate their grievances while the Courts, will in turn make pronouncements on the constitutionality or otherwise of the laws the 2nd Respondent had enacted in that regard.

In response to the argument in the 2nd leg of the objection i.e. for an order for payment of salaries, wages, allowances and other benefits which the 1st Respondent has argued, was outside the scope of the High Court of Adamawa State to grant. The Appellant through their counsel arguing per contra, however, maintained that the reliefs are grantable by the High Court. He described those claims or reliefs as accessory or incidental to the main or principal claim hence within the jurisdiction of the Court. Decisions in TUKUR v. GOVERNOR OF CONGOLA STATE (1989) 4 NWLR (Pt. 117) 517, GAFAR v, GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375; GOVERNOR OF EKITI STATE v. OLUBUNMI (2017) 3 NWLR (Pt. 1551) 1 were cited and relied on. We were urged to dismiss the preliminary objection.

I have considered those submissions of counsel, both in support and against the preliminary objection. I should say straight away that the issue the 2nd Respondent had set down for determination in the preliminary objection is similar to the three issues penciled down for determination in the appeal, which is on the interpretation of the relevant provisions of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the validity or constitutionality of Law No. 4 of 2004 given the provisions of Section 7(1) of the Constitution.

Be that as it may, when the question arises as to whether a Court can entertain any particular matter or issue before it, the jurisdiction of Court, invariably, is thereby invoked, hence the Courts at whatever stage or level, that issue (of jurisdiction) was raised, have no choice but to address it frontally and come to a conclusion. See ATTORNEY GENERAL, BENDEL v. AGBOFODOR (1999) 2 NWLR (Pt. 592) 476; ARARUME v. INEC (2007) 9 NWLR (Pt. 1035) 127; OKON v. BOB (2004) (CCA) 1 NWLR (Pt. 854) 378.

Courts have jurisdiction to inquire into its own jurisdiction. It is never too late or belated to address such issues whenever the authority of a Court is brought to question in any given situation. Hence issue of the exercise of jurisdiction by the Courts can be taken even on appeal as in this instant appeal case. See ATTORNEY GENERAL, BENUE STATE v. UMAR (2008) 1 NWLR (Pt. 1068); OREDOYIN v. AROWOLO (1989) 4 NWLR (Pt. 114) 172.

The 2nd Respondent has anchored her objection on the provisions of Sections 4(6), 7(1) and 254C(1)(k) of the 1999 Constitution (as amended). I will endeavour to reproduce those provisions as hereunder indicated for clarity of purpose thus:

1. Section 4 Subsection 6:
The legislative powers of a State of the Federal shall be vested in the House of Assembly of a State.

2. Section 7 Subsection 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 ad functions of such Councils.

3. Section 254C(1)(k):

(1) Notwithstanding the provision of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.

(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.

The power to make laws for the peace, order and good Government of the Federal Republic of Nigeria and the component parts is vested in the National Assembly and the Houses of Assembly of the States by dint of the provision of Section 4(1)(2)(3)(4)(6)(7) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). No one can take that away from them on the principle of separation of powers between the Legislature, the Executive and the Judiciary as enacted and affirmed in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) pursuant to Sections 4, 5and 6. See ADEYEMI & ORS. v. ATTORNEY GENERAL, OYO STATE (1984) LPELR 169 (SC). Neither the Legislature, the Executive nor the Judiciary should exercise the whole or part of another?s powers. The power to make laws is the exclusive preserve of the legislature. See LANKAMI & ANOR v. ATTORNEY GENERAL OF WESTERN STATE & ORS (1974) 4 ECSLR 713, 731 or (1971) 1 UILR 201, 218.

It follows therefore that in the business of law making, whether at Federal or State level, the duty rest squarely on the legislature and the legislature only, to make or enact laws for the peace, order and good government of their respective regions or States. This duty or function of the legislature is of course subject to the intervention of the Courts and other judicial Tribunals established by law as the occasion may demand by reason of Section 4(8) of the 1999 Constitution which provides thus:

‘(8) Save as otherwise provided by this Constitution the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of the Courts of law and of judicial Tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purport to oust the jurisdiction of a Court of law or of a judicial Tribunal established by law.’

The Courts will intervene, and call the legislature to order where cases exist of reported infractions of the Constitution in the process of law making or thereafter. See INAKOJU v. ADELEKE (SUPRA); EZEOLE v. MAKARFI (SUPRA); INEC & ORS. v. MUSA (SUPRA). Therefore, the submission made on behalf of the 2nd Respondent in their brief of argument in support of their Preliminary Objection on this point is, to my mind, misconceived and I overrule them on this point.

‘The Courts of the land were not established to make laws, rather the Courts were established under the Constitution to interpret all laws enacted by that august body hence any law so made or enacted is subject to the interpretational duty/functions of law Courts under Sections 4(8) and Section 272(1) of the Constitution (as amended). By dint of those provisions and those of Section 6 of the same Constitution, the Courts have jurisdiction and or power to decide and make pronouncements on the validity or constitutionality of any law passed or enacted at the National and State Houses of Assembly. In the instant case on appeal the validity of the Local Government and Administration (Amendment) Law 2004 can only be determined by placing it side by side with Section 7(1) of the Constitution (as amended), an exercise which I intend to revert to shortly.

‘The second point alluded to and argued under the Preliminary Objection is with respect to the reliefs sought by the Plaintiffs at the trial High Court. The argument is that the Plaintiffs are entitled to the payment of salaries, allowances and other benefits as these reliefs are not grantable by the trial High Court, rather it is the Court established under Section 254 of the Constitution that has jurisdiction to grant those reliefs by reason of Section 254C(1)(k) of the 1999 Constitution (as amended), hence the High Court of Adamawa State lack jurisdiction over those claims or reliefs.

I have earlier reproduced Section 254C(1)(k) of the Constitution. By the amended Originating Summons at pages 72 – 74 of the record, the Plaintiff now Appellants sought 4 (four) reliefs couched in the following manner, namely:

1. A declaration that the passage of the Adamawa State Local Government and Administration (Amendment) Law 2004 in so far as it reduced the tenure of office of the Plaintiffs from three (3) years to two and half (2) years, is unconstitutional, unlawful and cannot be justified in a democratic setting and therefore null and void.

2. A declaration that the dissolution of the Plaintiffs in January 2007 from holding office for the remainder of six months was therefore illegal, null and void.

4. An order directing the 1st Defendant to compute and effect the payment of all the Plaintiffs salaries, allowances and the benefits for the said six months forthwith.”

The 2nd head of Objection relates to reliefs 3 and 4 in the list of claims before the trial Court as against reliefs Nos. 1 and 2 of the same claim. The question, if I may ask, is why the claim in terms of reliefs 3 and 4 in the circumstances they were made? The answer, I think is not far-fetched but I need to go back to the basis. The Appellants or some of them were on the 10/07/2004 elected as Chairmen of their various Local Government Areas and sworn-in as such on 14th July, 2004. Two and half years down the line, they were made to vacate their offices as Chairmen of their various Council Areas pursuant to a Law, the Adamawa Local Government and Administration (Amendment) Law, 2004. A Caretaker Committee was then put in place to fill the void and run the affairs of the 21 Local Government Areas in the State. The Appellants who contend that they still had 6 months to run before the end of their tenure as at the date they were removed, approached the Court below to contest on, among other things, the validity or constitutionality of the said law hence the action instituted by them on the 11th January, 2007 vide the Originating Summons (as amended) wherein the Appellants sought sundry reliefs short of an order for re-instatement to their former positions as Chairmen of their various Local Government Councils. This is understandable. An order to reinstate them back to their former positions cannot be made as at the year 2017 when the suit was maintained, the tenure of 3 years having already expired. It is for this reason, the claim in terms of reliefs 3 and 4 cannot be faulted but it is for the Plaintiffs/Appellant to prove their entitlement to those reliefs.

Viewed therefore from the decision in TUKUR v. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt. 4117) 517; GAFAR v. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375; GOVERNOR OF EKITI STATE v. OLUBUNMI (2017) 3 NWLR (Pt. 1551) 1, the claim of the relief sought for the payment in terms of salaries, allowances or other benefits as contained in reliefs 3 and 4 of the claim are not the main or principal claim in that action but accessory or incidental only to the main claim, that is reliefs 1 and 2. It is the principal or main claim and not the accessory or claims incidental to the main claim that determines whether the Court can exercise jurisdiction or not.

The Apex Court in GAFAR v. GOVERNMENT OF KWARA STATE (SUPRA) held thus:
‘Where ancillary or incidental or accessory claims are so inextricably tied to or bound up with the main claims in a suit before the Court, a Court cannot adjudicate over them where it has no jurisdiction to entertain the claims if such incidental or ancillary claims cannot be determined without a determination at the same time, of the main claims must necessarily involve a consideration or determination of the main claims.”

Furthermore, the Apex Court in GOVERNOR OF EKITI STATE v. OLUBUNMI (SUPRA) held that:
“Even then as it is well known, a consequential order such as that which the lower Court made in favour of the Respondents herein, is an order that gives effect to the Judgment, i.e. that gives effect to the Judgment else it would amount to pyrrhic judicial victory. So far as the trial High Court has jurisdiction to determine the constitutionality or otherwise of Law No. 4 of 2004 (as amended), which is the main or principal claim, in this case, reliefs 1 and 2, it also has jurisdiction to entertain claims which are incidental or accessory to the main claim. In this case, reliefs 3 and 4 are merely incidental claims or reliefs. While I overrule the 2nd Respondent on this point, I will pause here for a while and proceed to address the merits of the appeal before us.

As indicated from the onset, parties filed and exchanged their briefs of argument. In the brief of argument dated and filed on the 3rd February, 2018, the Appellant raised 4 (four) issues from all the grounds of appeal except grounds 1 and 2, abandoned. The said grounds 1 and 2 are hereby struck out without much ado.

In the brief of argument for the Appellants, are 4 (four) issues raised for determination of this Court, namely:

1. Whether the Appellants’ suit as constituted amounts to an exercise in futility or an academic exercise? (Distilled from grounds 5 of the grounds of appeal).

2. Whether in the circumstance of the Appellants; suit and having regard to the processes before the trial Judge, it was right as held by the trial Judge that Appellants did not deem it necessary to challenge Law No. 4 of 2004 until they have completely run the two and half (2) years tenure provided by that law? (Distilled from ground 7 of the Ground of Appeal).

3. Whether the Adamawa State Local Government System, Establishment and Administration of Local Government Council (Amendment) Law No 4 of 2004 is not unconstitutional as to entitle the Appellants to the reliefs sought in their Originating Summons? Distilled from Ground 6 and 8 of the Grounds of Appeal).

4. Whether the Appellants are not entitled to salaries and other entitlements for the remainder of their tenure which was cut short by the Respondents their severances gratuities? (Distilled from grounds 3 and 4 of the Grounds of Appeal).”

The 1st and 3rd Respondents on their part formulated 3 (three) issues at pages 8 ? 9 of their amended brief of argument dated and filed on 3rd October, 2018.

The issues formulated are:

1. Whether the repeal of Section 23(3) and 33(1) of Law No. 4 2000 and re-enactment of Section 3 and 4 of Law No. 4 of 2004 (as amended) by the 2nd Respondent before the conduct of the election is unconstitutional and ultra vires its legislative powers (Grounds 5, 6 and 7).

2. Whether the Appellants can legally claim three (3) years tenure of office under the repealed Section 23(3) of Law No. 4 of 2000 when they were elected on the 10th of July, 2004 and took oath of office on the 13th of July, 2004 when Law No. 4 of 2004 (as amended) which stipulates two and half (2 ) years tenure was already in existence. (Ground 8)

3. Whether the considering the tenure of the Appellant relief/claim which relates to salaries, allowances and other benefits the trial Court is not divested of jurisdiction to grant same by virtue of Section 254C(1)(d) and (k) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. (Grounds 3 and 4)

The 2nd Respondent, in the amended brief of argument filed on her behalf on 1/8/2018 identified 4 (four) issues at page 6 of the brief thus:

1. Whether having regard to the provision of Section 2 of Adamawa State Local Government System Establishment and Administration (amended Law No. 4 of 2004 under which the Appellants were elected, the suit of the Appellants as Plaintiffs before the trial Court does not amount to an exercise in futility or academic exercise (ground 5).

2. Whether having regard to the material placed before the trial Court, the Judge was right when he held that the Appellants as Plaintiffs did not deem it necessary to challenge Law No. 4 of 2004 until they had completed their tenure of 2 years 2004 provided by law. (Ground 7)

3. Whether the Adamawa State Local Government System Establishment and Administration (Amendment) Law No. 4 of 2004 is unconstitutional. (Grounds 6 and 8).

4. Whether the Appellants having been elected and sworn in to serve 2 under Adamawa State Local Government System Establishment and Administration Law No. 4 of 2004 can claim any benefit under the principle law i.e. Local Government System Establishment and Administration Law, 2000. (Grounds 3 and 4).

I can observe the similarities in the issues raised or formulated by parties in their respective briefs of argument both in scope and content but the Appellants being the party aggrieved in this appeal, I think it is proper to abide by the 4 (four) issues raised by them in their brief of argument, namely:

1. Whether the Appellants’ suit as constituted amounts to an exercise in futility or an academic exercise? (Distilled from grounds 5 of the grounds of appeal).

COUNSEL’S ARGUMENT AND SUBMISSIONS
The Appellant have argued issues Nos. 1, 2 and 3 together, stating that the Law No. 4 of 2004 (as amended) was unconstitutional so far as it purports to amend the existing law i.e. Law in No. 4 of 2000 by reducing the tenure of the Local Government Chairmen (Appellants) from 3 years to 2 and the appointment of a caretaker committee in its place to run the affairs of the respective Local Councils for the remaining or the unexpired term of 6 months of the tenure of the Appellants. This attitude of the Respondents who dissolved the councils, it was argued, is clearly a violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria (as amended) and the Appellants, the person or parties at the receiving end can as of right, approach the Courts at any time to seek proper interpretation and application of provisions of Section 7(1) of the Constitution (as amended) vis–vis, Law No. 4 of 2004.

Learned Appellants’ counsel argue that issues relating to the interpretation of a statute or Constitution was not an academic question that can be brushed over but a live and enduring issue/or matter which can be taken up at any time. Such action(s) it is argued, is not belated, neither is it an academic exercise hence the trial Judge, according to the learned counsel, was wrong to hold to the contrary. He cited and relied on the decision in PLATEAU STATE OF NIGERIA & 1 OR. V. ATTORNEY GENERAL OF THE FEDERATION & ANOR. (2006) ALL FWLR (Pt. 303) 590.

To the learned Appellants’ counsel, the Adamawa State Local Government System’ Local Government System Establishment and Administration of Local Government Council Administration Law No. 4 of 2004 is unconstitutional, null and void, same being inconsistent with Section 7(1) of the Constitution (as amended). He cited the decision in GOVERNOR OF EKITI STATE v. OLUBUNMI (2017) 3 NWLR (Pt. 1554). It was further submitted, relying on the decision in ATTORNEY GENERAL PLATEAU STATE & ORS. v. CHIEF ANTHONY GOYOL ORS (2007) 16 NWLR (Pt. 1059) 95 – 96 that the 1st and 2nd Respondents have no power to enact a law providing for a caretaker committee setup to replace a democratically elected Local Government Council. Relying on facts deposed to at paragraphs 4(III), 4(IV) and 4(VI) of the affidavit in support of the amended Originating Summons, he argued that the facts deposed to therein are deemed admitted since those facts were neither challenged nor controverted.

He therefore urged on the Court to resolve issue Nos. 1, 2 and 3 in favour of the Appellants and against the Respondents.

On the issue of payment of salaries and allowances being issue No. 4, it was argued that the Appellants are entitled to the same bearing in mind that, as of the year 2017 when the suit was instituted by them, they could not have been reinstated to their former positions or offices, in that, their tenure of office elapsed in the year 2007. It was argued therefore, following the decision in GOVERNOR OF EKITI v. OLUBUNMI (SUPRA) at page 42, they (Appellants) are entitled and can be compensated in monetary terms by the payment of salaries and allowances for the period during which their tenure was interrupted. To this end it was argued that the trial Court was wrong to hold that the remedy of payment of salaries and allowances were not available to the Appellants and they are not entitled to same. We were urged to resolve issue No. 4 also, in favour of the Appellants and against the Respondents.

Arguing for the 1st and 3rd Respondents, their counsel maintained that the repealed Sections 23(3) and 33(1) of the Law No. 4 of 2000 by the reenactment of Section 3 and 4 of Law No. 4 of 2004 was valid and constitutional as the 2nd Respondent was constitutionally vested with powers to make law vide Section 4(6) and 7(1) of the Constitution as amended. Consequently the 2nd Respondent is by law in order when it reduced the tenure of the elected Chairmen from 3 years to 2 years. The only exception, it is argued, is that the 2nd Respondent cannot in exercise of its functions, be allowed to enact a law which is inconsistent with the Constitution. He referred to ATTORNEY GENERAL OF THE FEDERATION v. ATTORNEY GENERAL LAGOS STATE (2013) 16 NWLR (Pt. 1380) SC 249, 305. In this instant case or appeal, it was argued that there was nothing unusual about the amendment effected to the principal law by the 2nd Respondent who acted within the provisions of Sections 4(6) and 7 of the Constitution. Learned counsel for the 1st and 3rd Respondents attempted to draw a distinction between the case on hand and the decision in GOVERNOR OF EKITI STATE v. OLUBUNMI (SUPRA) in that the new law did not create a caretaker committee as was the case in GOVERNOR OF EKITI STATE (SUPRA). It was further argued that Sections 3 and 4 of Law No. 4 of 2004 were already in force as at the date the Appellants were elected. For those reasons it was submitted, that the decision in the GOVERNOR OF EKITI STATE v. OLUBUNMI (SUPRA) was not applicable to the instant appeal case.

In relation to the question whether the Appellants can claim 3 (three) years tenure of office, it was argued and submitted that the Appellant could not do so viewed from the stand point that they were elected under Law No. 4 of 2004 and they took their Oath of office under the said law which stipulate for a 2 years tenure of office, therefore their tenure of office, it is argued, is tied to the law under which they were inaugurated, and not to the repealed law or Section 23(3) of Law No. 4 of 2000 which is no longer in existence. He cited the decision in ADAMAWA STATE HOUSE OF ASSEMBLY v. TIJANNI (2012) 8 NWLR (Pt. 1303) (CA) 483, 506; OLAFISOYE v. FEDERAL REPUBLIC OF NIGERIA (2004) at pages 25 – 26.

Drawing from the authorities cited above, the 1st and 3rd Respondents submitted that the Appellants cannot claim any right, or privileges under a law that was no longer in existence. Learned counsel for the 1st and 3rd Respondents urged us therefore to hold that Law No. 4 of 2004 is valid, constitutional and the 2nd Respondent acted within the compass of the law and the Constitution to enact that law.

In relation to the question whether the High Court is vested with jurisdiction to make an award for the payment to the Appellants, of salaries and allowances viewed from the perspective of the provisions of Section 254C(1)(d) and (k) of the Constitution. On the point, it was argued that the High Court lack jurisdiction to make such grants. Rather it is the National Industrial Court and not the State High Court that has jurisdiction to make those awards or grants. We were urged to resolve the issue in favour of the Respondents.

The submission made for the 2nd Respondent in opposition to the appeal are those contained at pages 7 – 19 of the 2nd Respondent’s brief of argument. I must say that the position taken by the 2nd Respondent, in relation to issue Nos. 1, 2 and 3 and indeed issue No. 4 are the same or similar to issues distilled and argued by the 1st and 3rd

Respondent in their brief of argument. It will amount to a repetition, to reproduce same here.

The Appellants filed 2 (two) Reply briefs, the first, is the Reply brief dated and filed on the 18/10/2018 in response to the 1st and 3rd Respondents’ amended brief. The second is the Reply brief to the 2nd Respondent’s Amended brief of argument. In the reply brief to the 1st – 3rd Respondents’ brief of argument, the Appellants further joined issues with the Respondents when the submission was made to the effect, that the existing Local Government Law No. 4 of 2000 was not only amended, but a Caretaker Committee was appointed by the 1st and 3rd Respondents to replace the Appellants by reason of which Section 7(1) of the Constitution has been violated hence the trial Court ought to declare the new law as amended, null and void ad of no effect. The case of ATTORNEY GENERAL, FEDERATION v. ATTORNEY GENERAL, LAGOS (2013) 16 NWLR (Pt. 1380) 249; OBAYUWANA v. GOVERNOR OF BENDEL STATE (1982) LPELR 2160 were cited and relied on. We were further referred to ADESANOYE v. ADEWOYE (2002) 9 NWLR (Pt. 671) 127; AKINTOKUN v. LPDC (2014) 13 NWLR (Pt. 1423).

In response to 2nd Respondent’s brief of argument, the Appellants made submissions as follows:

(1) The right to challenge the validity of a statutory provision is not time bound hence Law No. 4 of 2004 whose constitutional validity is in question can be challenged at any time.

(2) That the Originating process or suit (Originating Summons) seeks to challenge the validity of Law No. 4 of 2004 and the nullification of same and not Law No. 6 of 2006. Therefore, reference to law No. 6 of 2006 by the 2nd Respondent as the law the appellant set to challenge is misconceived and misleading.

(3) That Law No. 4 of 2004 is unconstitutional. The fact that the Appellants were elected and sworn in under Law No. 4 of 2004 does not make it a valid law under the Constitution hence decisions in DANIEL v. INEC & ORS (2015) 9 NWLR (Pt. 1463) 113, 114, 115 and EZEREBE v. EHINDERO & ORS. (2009) 10 NWLR (Pt. 1148) 178 cited by the 2nd Respondent are not applicable.

(4) That ignorance of the existence of Law No. 4 of 2004 affords the Appellants an excuse for not challenging the validity of that law earlier than they did; hence the decision in OMOZEGHIAN v. ADJARHO & ORS (2006) 4 NWLR (Pt. 969) 33, it is argued, supports the Appellants rather than the 2nd Respondent.

(5) The contention of the 2nd Respondent in his brief of argument that Law No. 4 of 2004 did not create a Caretaker Committee, is an issue raised, for the very first time in this appeal. The point was not raised at the Court below. The 2nd Respondent in any case did not file any counter-affidavit in opposition to the affidavit filed in support of the Originating Summons.

(6) That the 2nd Respondent did not challenge the facts deposed to by the Appellants at paragraph 4(vi) of the Appellants’ affidavit in support of the Originating Summons, especially as regards the fact that the 1st and 3rd Respondents put in place a Caretaker Committee after the Appellants were made to vacate their offices, hence parties are all agreed that Law No. 4 of 2004 provides for a Caretaker Committee.

(7) That the 2nd Respondent cannot give evidence of the content of Law No. 4 of 2004 without necessary compliance with provisions of Section 106 of the Evidence Act, Order 4 Rule 2 of the Court of Appeal Rules, 2016. ADEGBITE v. AMOSU (2016) 15 NWLR (Pt. 1536) 405 was cited and referred to.

(8) That the question whether the Amendment provided for a Caretaker Committee, having only been raised as a fresh issue in this Court cannot be entertained now to ambush the Appellants.

(9) That the unconstitutionality, of the amendment law relate to the creation of a management or Caretaker Committee to run the affairs of the Local Councils for the remaining period of 6 months.

(10) That paragraph 4(vi) of the affidavit in support of the Originating Summons was not challenged by the 2nd Respondent.

(11) The Appellants do not question the powers of the 2nd Respondent to make laws for the Local Government Councils.

(12) The 1st & 3rd Respondents in their Counter-affidavit at paragraph 10 (pages 920 of the record) deposed to the fact that Law No. 4 of 2004 created a Caretaker Committee.

(13) That Law No. 4 of 2004 did not only reduce the tenure of Local Government Chairmen from 3 years to 2 years but created a Caretaker Committee to run the affairs of those councils for the remaining 6 months of their tenure.

(14) That the Appellant are entitled to compensatory reliefs for 6 months by reason of Adamawa State Amendment Law No. 6 of 2007.

RESOLUTION OF ISSUES

This case on appeal was fought or contested on the basis of affidavit evidence introduced and filed by parties on both sides at the trial Court except the 2nd Respondent who did not file any Counter-Affidavit.

The amended Originating Summons which heralded the case at the trial Court has in support, an affidavit of 5 (five) paragraphs as can be seen at pages 72 – 79 of the record of appeal.

The 1st and 3rd Respondents as Defendants filed a joint Counter-affidavit of 12 paragraphs. See pages 80 – 83 of the record of appeal. The 2nd Respondent (2nd Defendant) as indicated before, did not challenge the affidavit evidence of the Plaintiffs/Appellants in support of the Originating Summons by way of a Counter-affidavit filed in opposition. That was the setting when the trial Court took counsel’s submissions and eventually gave a verdict.

The absence of a Counter-affidavit of 2nd Respondent challenging the suit is to me, very disturbing as it has its own implications. I shall return to this point shortly but if I may observe, the grievance which led to the suit on appeal being filed, is the constitutionality of the Adamawa State Local Government Establishment and Administration (Amendment) Law 2004 otherwise, Law No. 4 of 2004 which amended Sections 23 and 33 of the Local Government System Establishment and Administration of Local Government Council Law 2000 vis a vis to Section 7(1) of the Constitution (as amended).

Before I address this question I shall reiterate, by way of emphasis, the power bestowed on the legislature, in this case, the Adamawa State House of Assembly, to make, enact and pass laws is undiluted so long as any laws passed by it is within its own legislative competence and authority. Not only can the legislature enact laws, it can also amend any existing law passed by that arm of government as circumstances may permit. This duty function on the legislature to enact and even amend existing laws was alluded to by the Apex Court when it held in AMOSHIMA v. STATE (2001) LPELR 471 (SC) that:-

‘It is trite law that whereas it is the duty of the legislature to enact law, that of the judiciary is to interpret the laws so made. It follows therefore that where there is dissatisfaction with the State of the laws as it exists, and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendment thereto. The duty both to make and amend laws so made belongs exclusively, by constitutional arrangement, to the legislature as provided under Section 4 of the Constitution of the Federal Republic of Nigeria, 1999.’ per Onneghen, JSC (now CJN).

By way of an addendum I should say, that any amendment so effected by the legislature must be in obedience to the relevant constitutional provisions under which the law was made, enacted or amended.

In the supporting affidavit to the Originating Summons (as amended) the Appellants deposed to a variety of facts. At paragraph 5 (vi), (vii), (viii) in particular, the Appellants deposed thus at pages 77 – 78 of the record:

5.That I know as of fact the following

(vi) That on the 14th of January 2007, the 1st and 3rd Defendants purportedly dissolved our various Local Government Councils inspite of the fact we were nominated and campaigned for one offices and were asked to vacate our various offices prematurely and a caretaker committee was then set-up

(vii) That this action necessitated our coming before this Honourable Court in this suit challenging the propriety 1st and 3rd Defendants action in terminating our tenure of office before the expiration of our three year term of office guaranteed by Law No. 4 of 2000.

(viii) That it was during the purported dissolution of the elected leaderships of the various Local Government Councils in January 2007 that we were informed that Section 23(3) of Law No. 4 of 2000 was amended by the 2nd Defendant on the 7th day of July, 2004 and assented by the Governor on the 8th day of July, 2004, reducing our term of office from 3 years to 2 years.

Those facts are clear enough but if I should further elucidate, I understand the Appellants as stating that:

(i) The 1st and 3rd Respondents forced them to vacate their offices prematurely i.e. before the end of their 3 years tenure as Chairmen of the various Local Government Councils.

(ii) The 1st and 3rd Respondents set up a Caretaker Committee to manage the affairs of the various Local Government Councils.

(iii) The Appellants were not informed of the repeal of Law No. 4 of 2000 until the date of dissolution of the elected Council Chairmen.

(iv) The dissolution of the elected Council Chairmen was not proper.

(v) The 1st and 3rd Respondents filed their Counter-affidavit of 12 paragraphs wherein they deposed at pages 80 ? 83 of the record, certain facts, as for instance, facts that

(a) The 1st and 2nd, 4th & 13th Appellants were elected as Chairmen on the 10th day of July, 2004 and sworn in on the 14th day of July, for a 2 years tenure in line with Adamawa State Local Government System Establishment and Administration of Local Government Councils (Amendment) Law 2004, i.e. Law No. 2004. (b) That Law No. 4 of 2004 reduced the 3 years tenure in the principal law i.e. Law No. 4 of 2000 from 3 years to 2 years.

(c) That the 2nd Respondent in particular, has the legislative powers to make such a law, reducing the tenure of the Appellants from 3 years to 2 years.

(d) By reasons of the expiration of the tenure of the Appellants of 2 years, Management Committees for the Local Government Councils were constituted to run the affairs of those councils.

It is worthy of note that facts deposed to in the affidavit in support of the Originating Summons as amended were neither challenged nor controverted by the 2nd Respondent who did not file a Counter-affidavit. By this their stance, the 2nd Respondent is deemed to have accepted those facts deposed in the affidavit evidence in support of the amended Originating Summons as true particularly facts as they relate to the dissolution of the 1st, 2nd, 4th & 13th Appellants as Chairmen and their replacement by a Management or Caretaker Committee.

There is no further or better affidavit from the Appellants challenging facts contained at paragraphs 2 and 3 of the 1st and 3rd Respondents Counter-affidavit that the 1st, 2nd, 4th & 13th Appellants were elected and sworn in sometimes in July 2004.

Taking the cue therefore from the decision of the Apex Court in AJOMALE v. YADUAT (NO. 2) (1991) 5 NWLR (Pt. 191) 266, this Court can act on the uncontradicted facts contained in the affidavit evidence of the opposite party as duly admitted. First, the fact that the 1st, 2nd, 3rd & 13th Appellants were not only elected but sworn-in July, 2004 was not contradicted by the Appellants by a further affidavit. This fact is deemed to have been admitted as true.

The second point is the fact that the Appellants were made to vacate their offices after only serving 2 years of their tenure in their various offices and a Caretaker appointed to replace them. This fact was also not denied or contradicted by the Respondents. To the contrary the 1st and 3rd Respondents have affirmed those facts by reason of their Counter-affidavit.

Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees a democratically elected Local Government System. It provides thus:

7(1) The system of Local Government by democratically elected local government councils is under this Constitution guaranteed and accordingly the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”

The system of democratically elected government gained prominence with the coming into force of a constitutional democracy founded on the Constitution of Federal Republic of Nigeria 1999 (as amended). By this, all tiers of government starting from Federal, through the States to the Local Government Council/Areas, are from the date of commencement of the 1999 Constitution, are to be managed, governed, and administered by persons or officials who are/were democratically elected by the people hence Section 7(1) of the Constitution (as amended) is the guiding constitutional provision for the structure of governance at Local Government levels. In other words, the Constitution, under Section 7(1) guarantees the existence of a democratically elected government at that local level. The only exceptions are circumstances created by Section 8 of the same Constitution.

The point or the question which I think is still relevant and dominant is whether the Adamawa State Local Government, Establishment and Administration (Amendment) Law 2004 otherwise known as Law No. 4 of 2004 is, on the facts presented to us, in accord with provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria (as amended). This question must be answered in the affirmative in line with the legislation powers vested in the House of Assembly of Adamawa State as Law No. 4 did not attempt to create or appoint or establish a caretaker committee, it is valid law within the meaning and intendment of Section 7(1) of the Constitution (as amended).

In ATTORNEY GENERAL, PLATEAU STATE v. GOYOL (2007) 16 NWLR (Pt. 1059) 57, the Court of Appeal held:
‘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 crises, 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 vacate 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. Thus, the action of the Government in dissolving the councils and proceeding to appoint caretaker committee rendered its action unconstitutional and the trial Court 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.’

This instant case on appeal is distinguishable from Goyol case above. However in GOVERNOR EKITI STATE v. OLUBUNMI (2017) NWLR (Pt. 1551) 1, 35, the apex Court held:

‘… any action of the governor which has the capacity of undermining the Constitution (as in the instant case where the 1st Appellant purportedly ended the tenure of the Respondents Councils, dissolve them and replace them with Caretaker Committees) is tantamount to executive recklessness which will not be condoned.

It has been argued that by Law No. 4 of 2004, there is no provision creating a Caretaker Committee hence the case on hand is distinguishable from the case in ATTORNEY GENERAL, PLATEAU STATE v. GOYOL (SUPRA). I agree with that submission of counsel for the respondents.

However since the constitution under Section 7(1) guarantees the existence at all times of a democratically elected local government officials, Government or respondents herein must be proactive and not wait until the tenure of officials of the local councils expire before putting in place a new set of elected officials, Section 7(1) of the Constitution inures a continuous and smooth transition from one elected local council to another without a rapture let alone for government to take advantage and appoint or constitute a Management Caretaker Committee to run the affairs of any Local Government Councils. Any such step taken in clearly unconstitutional as it violates Section 7(1) of the 1999 Constitution as amended. This is one nagging question which the appellants have sought to clarify in this appeal and I agree with them that when it comes to the interpretation of any enactment in the Constitution or any statutory provisions, it is never too late to approach the Courts to do that just as it is not a mere academic exercise to call on the Courts to interpret and pronounce on the validity or otherwise of any enactment as the appellants have done in this case on appeal as held in Attorney General Plateau State Vs. Attorney General Federation (2006) All FWLR (Pt. 305) 590, 622.

Accordingly, I resolve issues 1 and 2 in favour of the Appellants while issue 3 is resolved in favour of the respondents.

By reason of the position, I have taken in relation to issue Nos. 1, 2 and 3 above, Law No. 4 of 2004 is still extant and Section 3 and 4 are valid legislations. The appellants were elected and sworn in under that law and their tenure having thus come to an end by effluxion of time, they are not entitled to any allowances, salaries or other benefits beyond their tenure of 21/2 years. Accordingly Issue No. 4 is also resolved against them (appellants) and in favour of the respondents.

This appeal succeeds only in part in terms of Issue Nos. 1 and 2 but is dismissed in terms of issues 3 and 4 which are resolved in favour of the Respondents.

That is the Order and Judgment of Court.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned Brother, Saidu Tanko Husaini, JCA. I agree with His Lordship’s line of reasoning and the conclusions reached by him in the said leading judgment that, the appeal succeeds and is accordingly allowed in part.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances:

Olabode makinde with him, M. J. Ifeguw and C. J. IkembaFor Appellant(s)

J.A. Waya (SSC II Ministry of Justice, Admawa State) with him, D.I. Kulyhu (SC II, Ministry of Justice, Adamawa State) for the 1st and 3rd Respondents.

Abubakar Sa’ad for the 2nd Respondent
For Respondent(s)