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National Industrial Court

HON. DR. ABDULLAHI AHMAD GADA & ORS V GOVERNOR OF SOKOTO STATE & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON FRIDAY THE 19 TH   DAY OF OCTOBER, 2018

  SUIT NO.NICN/SK/12/2018

BETWEEN

  1. HON. DR. ABDULLAHI AHMAD GADA

   CHAIRMAN  GADA LOCAL GOVT.

  1. HON.IDRIS MOH’D GOBIR

    CHAIRMAN SABON BIRNI LOCAL GOVT.

  1. HON. AMINU SAHALI

   CHAIRMAN SOKOTO SOUTH LOCAL GOVT

  1. HON.UMMARU DANHABBI T/KOSE

    CHAIRMAN BINJI LOCAL GOVT.

  1. HON. COL GARBA MOYI

   CHAIRMAN ISA LOCAL GOVT.

  1. HON. FAROUK YAR RIMAWA

   CHAIRMAN GORONY0 LOCAL GOVT

  1. HON. ISAH TAMBAGARKA

    CHAIRMAN GWADABAWA LOCAL GOVT

  1. HON. ABDULKADIR JELANI SHEHU

    CHAIRMAN WURNO LOCAL GOVT.

  1. HON. BUBA BELLO

    CHAIRMAN WAMAKKO LOCAL GOVT

  1. HON. NURA SHEHU

      CHAIRMAN TANGAZA LOCAL GOVT

1 1 HON. JANAIDU ABUBAKAR

      CHAIRMAN BODINGO LOCAL GOVT

I 2. HON. ALIYU ABBAKAR

      CHAIRMAN TURETA LOCAL GOVT

  1. HON. MOH’D JABBI SHAGARI

      CHAIRMAN SHAGARI LOCAL GOVT

CLAIMANTS

      AND

1.GOVERNOR OF SOKOTO STATE

  1. ATTORNEY GENERAL & COMMISSIONER

    FOR JUSTICE SOKOTO STATE

  1. COMMISSIONER FOR LOCAL GOVERNMENT

   AND COMMUNITY DEVELOPMENT, SOKOTO STATE

DEFENDANTS

REPRESENTATION

  1. Ubong Akpan with A. Zubairu for claimants.
  2. Suleiman Usman SAN With L.S Wali, DCL, MOJ, Sokoto State, Almustafa Abubakar, ADPP, MOJ, Sokoto State, H.A UsmanC.S.C,MOJ, Sokoto State. T.O Adebye, Esq, H.S Buhari . S.S.C MOJ, Sokoto State, Abbas Samaila Esq. S.S.C, MOJ, Sokoto State,  for the defendants

JUDGMENT

  1. INTRODUCTION

This judgment centers on whether or not the tenure of the claimants has expired on 31st May, 2018 or will only expire on 31st May, 2019. The claimants took out an originating summons against the defendants on the 25/9/2018, accompanied by all the necessary documents as required by the Rules of this Court. The claimants formulated 11 questions for determination and 11 corresponding reliefs. The questions by way of summary are as follows;

  1. Whether the powers of the Sokoto State House of Assembly to make Laws for the Local Government Councils, extend to the power to make Laws for tenure of the Local Government Councils.
  2. Whether any Law passed by the Sokoto State House of Assembly prescribing the tenure of the Local Government Councils in Sokoto State, after 1999 is valid.

OR IN THE ALTERNATIVETO QUESTIONS 1 AND 2;

3&4. Assuming without conceding that the answer to the above ( 1) and (2) be in the negative, whether by reason of standing and/or contesting the election into the Local Government  Councils held in Sokoto State on 13th March, 2016 pursuant to Section 13( 1) of the Sokoto State Local Government Law No. 1. 2008, the Claimants acquired a vested legal and constitutional interest in the three year tenure of office as democratically elected Local Government Chairmen in Sokoto State beginning from 1st  June,2016 and expiring on 31st May,2019.

 

5,6&7. Whether by virtue of Section 7( 1)(2) and (3) of the Constitution of the Federal Republic of Nigeria 1999( as amended) , the Governor of Sokoto State has any constitutional or other power howsoever arising to remove, suspend from office or prevent in any way howsoever, the Claimants from performing their public duties as democratically elected Local Government Chairmen in the Local Government Areas in Sokoto State and to direct the assumption and performance of the Claimants functions and duties of office  by any person.

  1. Whether any vacancy or expiration of tenure of office as public officers and Chairmen of Local Government Councils in Sokoto State has occurred, to warrant any substitution or appointment of any person to fill these already occupied positions.
  2. Whether the Court will make an order setting aside and nullifying any exercise of power by the defendants calculated to truncate or otherwise interfere with the tenure of the Claimants and Purporting to appoint anyone to assume or perform the functions of office of chairmen of Local Government Councils in Sokoto state.
  3. Whether the Court will ORDER that the Claimants be paid forthwith, all outstanding and future entitlements accruing to and due, by virtue of their holding the public offices of Chairmen of Local Government Councils in Sokoto State .
  4. Whether the Court will make an order of perpetual injunction restraining the defendants, their agents, assigns, privies or otherwise howsoever from any exercise of power calculated to truncate or otherwise interfere with thetenure  of the Claimants.
  5. FACTS OF THE CASE

The Sokoto State Independent Electoral Commission (SSIEC) blew the whistle for the Local Government Council Election in October, 2015. The claimants participated and won the primary elections of their political parties and obtained forms from SSIEC as flag -bearers of their political parties for the election slated for 9th January 2016.The date of the election was later shifted to 13th March, 2016. On the 11th day of February, 2016, the Sokoto State House of Assembly amended the Sokoto State Local Government Law of 2008 and reduced the tenure of Local Government Council Chairmen from 3 years to 2 years. The claimants were later elected as Chairmen of various Local Government Councils in Sokoto State on 13th March 2016 and they were sworn in on 1st June 2016. On the 31st may, 2018, the Commissioner, Sokoto State Ministry for Local Government, through the Director Monitoring, wrote to all Local Government Secretaries in the state, instructing them to oversee the affairs of their respective Councils in view of the expiration of the tenure of the claimants. It is this action that birthed this suit.

  1. CASE OF THE CLAIMANTS

The 1st claimant deposed to a 26 paragraph affidavit on behalf of all the claimants. Paragraphs 4, 6, 7, 8, 9, and 10 contain the facts of the case as above summarized. Paragraphs 5 and 18 contain information to the deponent from his counsel Mr Ubong Akpan Esq. The information obtained from counsel comprise of the questions raised and reliefs sought in this suit.

Other relevant portions of the affidavit are paragraphs 19, 20, 21 and 22, they are reproduced hereunder;

19.I verily believe that upon individual inquiries, the Claimants were informed that the Local Government Law, 2008 was amended sometime in February 2016 just before they were sworn in, reducing their tenure to two years, as opposed to the term of three years stipulated in the applicable Local Government Law 2008, on the basis of which primaries were conducted and nomination forms filled, submitted and accepted by the Sokoto State Electoral Commission.

  1. The said amendment, if any, was in bad faith and not applicable to the Claimants who offered to contest and won their elections based on the representation that the tenure of the Local Government Councils will last three Years.
  2. The Claimants contend that such a radical shift in the tenure of office ought to have preceded the nominations and party primaries such that anyone who is contesting would have had a foreknowledge of the tenure before taking part in such election.
  3. The Claimants had resigned their respective employments and suffered varying degrees of forbearance to contest the elections on the premise of the tenure of three years and the action of the defendants amount to shifting the goal post after conclusion of and party primaries.

Submitting on issues 1 and 2, learned claimants counsel said the Claimants’ thesis is that the powers of the Sokoto State House of Assembly to make laws for the Local Government Councils are limited solely to providing for the Establishment, Structure, Composition, Finance and Functions of such Local Governments but do not extend to, or confer on, (whether directly or by any legitimate extension of meaning) the State House of Assembly the power to make laws for tenure of the Local Government Councils, and therefore, deliberately and expressly excluded from its purview the constitutional power to determine the tenure of the Plaintiffs rights and entitlements and authority of office arising therefrom  and that any 1aw passed by the Sokoto State House of Assembly prescribing the tenure of the Local Government Councils in Sokoto State, after 1999, is invalid to the extent of that inconsistency. That the only provision for tenure of the Local Government Councils and Chairmen in existence as at the passing of the l999 Constitution is as prescribed by the Local Government Law CAP. 82 of 1996, of Sokoto State, by which a 3 year tenure is prescribed and that all the following laws, to wit;

  1. The 2000 Local Government Law of Sokoto State.
  2. Section 13 ( 1) of the 2008 Local Government Law of Sokoto State
  3. Section 3 of the 2016 Local Government (Amendment) Law of Sokoto State are all invalid in so far as they purport to prescribe tenure of Local Government Councils and Chairmen.Counsel further submitted that by virtue of Section 7(1), (2) and (3) of the 1999 constitution of the Federal Republic Nigeria as amended and Section l3(1) of the Sokoto State Local Government Law No. l of 2008, their tenure of office which commenced on 1st June, 2016 and is therefore legally due to expire on 31st May, 2019 cannot be determined by the defendants without due process of law. All legislative attempts after 1999 to prescribe tenure for the Local Government Councils and Chairmen in Sokoto State are unconstitutional, as they violate Section 7 (1) of the 1999 Constitution. The appointment by defendants of caretaker Committee for Local Government Areas in Sokoto State is unconstitutional and illega1.

That Section 7 (1) of the Constitution of the federal Republic of Nigeria, 1999 as amended which deals with the Local Government system in Nigeria is unambiguous and very clear. The constitution clearly provides that the government of every state shall subject to section 8 of the constitution ensure the existence of a law which provides for the ESTABLISHMENT, STRUCTURE. COMPOSITION, FINANCE AND FUNCTIONS of such Councils. What this means is that any law made by  any State House of Assembly which is in conflict with or inconsistent with the provisions of the above section 7 (1) of the 1999 Constitution of Federal Republic of Nigeria ( as amended) shall to the extent of such inconsistency be null and void.

Counsel submitted that Although the House of Assembly has power to make laws, such laws must be in accordance with the provisions of the Constitution, relying on the case of THE ATTORNEY GENERAL OF PLATEAU STATE & ORS V. HON. CHIEF ANTHONY GOYOL (2O07) LPELR -12875(CA)

Counsel submitted further that “tenure” was not mentioned in section 7(1) and so it is excluded, relying on the cases of OJUKWU V. YAR’ADUA (2008)4 NWLR(PT. 1078) 435 AT463; PDP V. INEC (1999) 11 NWLR (PT 626) 200; BUHARI V YUSUF (2003) 14 NWLR (PT841) 446; OGBUNYIYA V. OKUDA (1979) 6-9 SC. 32

Counsel also submitted that the fate of a Law that is inconsistent with the provisions of the constitution is that it must be declared inconsistent, null and void, relying on the case of FASAKIN FOODS (NIG.) LTD V. SHOSANYA (2006) 10 NWLR (PT 987) 1 26 AT 148-149.

Arguing issues 3 and 4 in the alternative to issues 1 and 2, counsel submitted that  by reason of (i) obtaining party nomination forms: (ii) contesting party Primaries; ( iii) obtaining and submitting to the Sokoto State independent Electoral commission the forms for election into the office of chairmen of Local Government ( iv) the acceptance of the above electoral forms, and bid for office; (v) Standing and/or contesting the election into the Local Government Councils and Chairmanship held in Sokoto State on 13th March, 2016 pursuant to Section 13(1) of the Sokoto State Local Government I.aw No. I, 2008, and all subsequent event such as: (a) the taking of the oath of office on the 1st June, 2016, and ( b) assumption of office and performance of the functions of office as Chairmen of Local Government Areas in Sokoto State, the Claimants acquired a vested legal and constitutional interest in the three-year tenure of office as democratically elected Local Government Chairmen in Sokoto State beginning from 1st  June, 2016 and expiring on 31st May, 2019 as prescribed by the applicable Law under which they obtained and submitted forms for contest, by virtue of which they became entitled to the following; (a) appurtenances of office, (b) salaries and wages as politically elected and/or public officers (c) other allowances and emoluments arising therefrom.

Counsel placed heavy reliance in the acts of the parties before, during and after the elections that brought the Claimants to power and contended that the Claimants have demonstrated that they acquired vested rights and interest thereby. Counsel relied on the case of ALHAJI SOBALAJE ERELUN & ORS V. DR.ATIKU I. ADERONPE 2008} LPELR-3711 (CA) where the court held;

“I quite agree in principle that it is the law that rights which have vested will not be affected by subsequent change in policy, decision or even the law”.

That by the vested interest which the Claimants have over their tenure of office, salaries, and other derived entitlements, the defendants cannot unilaterally determine their tenure under any guise.

Arguing questions 5,6,7 and 8 together, counsel submitted that by virtue of Section 7(1) ( 2) and (3) of the Constitution of the  Federal Republic of Nigeria 1999(as amended), the Governor of Sokoto State has no Constitutional or other power howsoever arising to: ( i) remove from office, or ( ii) Suspend from office; or (iii) prevent in any way whatsoever; or (iv) otherwise interfere in the functioning of the claimants performance of their public duties and authority of the political or public office, and the Claimants’ statutory and other legitimately derived earnings and entitlements as democratically elected Local Government Chairmen in the Local Government Areas in Sokoto State.

That any letter, resolution, direction, executive order, statutory direction or otherwise howsoever by which the defendants or any of them purport to: (i) remove from office; or (ii) suspend; or (iii) prevent in any way whatsoever and      (iv) interfere in the functioning of the Claimants performance of their political and/or public duties as democratically elected Chairmen of Local Government Councils in Sokoto State are illegal, null and void. That no vacancy or expiration of tenure of office as public officers and Chairmen of Local Government Councils in Sokoto State has occurred to warrant any substitution or appointment of any person to fill an already occupied Position.  That by the provisions of Section 7 (l) of the 1999 Constitution of the Federal Republic of Nigeria, every state must ensure the existence of a democratically elected Local Government Councils and no Governor has the powers to remove democratically elected chairmen from office. Counsel relied on the cases of ATTORNEY GENERAL OF PLATEAU STATE & ORS V. HON. CHIEF ANTHONY GOYOL (2007) LPELR- 12875(CA). HON. OLEJIMA STEPHEN FRIDAY & ORS v. ONDO STATE GOVERNMENT &ANOR (2012) LPElR-7886 (CA)

Counsel argued further that the applicants, who took oath of office on 1st June, 2016 still have till 31st May, 2019 to leave office by effluxion of time and not at the unilateral will of the defendants. GOVERNOR KWARA STATE V. OJIBARA (2006) 18 NWLR (PT.1012) page 645 at 660 – 662.

 That the executive powers vested in the Governor of the State is not absolute as same must be exercised within the confines of the law. INIOBONG MICHAEL GEORGE V CIVIL SERVICE COMMISSION, AKWA IBOM STATE & ANOR (2015) 55NLLR (PT.188) p. 372 at 410.

Arguing on issues 9,10 and 11, counsel submitted that it is a time honoured principle that once the Court finds that a party’s right has been infringed upon, the Court will, in the spirit of ubi jus ibi remedium, grant appropriate remedy to the party. This much was aptly captured Per Onnoghen, J.S.C. in the case of EZE & ORS V. GOVERNOR OF ABIASTATE & ORS (2014) LPELR-23276(SC)  and the case of DANLADI V. DANGIRI (2015) 2 NWLR(PT.1442) 124 at 170 where the apex Court made a consequential order restoring the appellant back to his office as Deputy Governor. Counsel concluded by urging the Court to grant the reliefs sought by the claimants.

  1. CASE OF THE DEFENDANTS

A 19 paragraph counter affidavit was deposed to by one Zulai Bello Esq, Female, Muslim, Nigerian citizen, Civil Servant of the Attorney General Chambers Ministry of Justice, Sokoto State on behalf of the defendants. The relevant depositions are;

  1. That contrary to the deposition in the Affidavit in support of the originatingSummons, the nomination of candidates and their resultant election at both primary and general election is a long process not an event that happens at one time only. 
  2. That Constitutional powers of a State House of Assembly to make laws for Local Government as affirmed by the Supreme Court includes power to provide for tenure of the Local Government Councils.
  3. Thatparagraphs 5(3) 5(4), 5(5), 5(6), 5(7), 5(8), 5(9), 5(10), and 5(11) of the affidavit in support of originating summons are legal arguments that should not be contained  in an Affidavit.
  4. That the latest amendment to the Local government Law 2008 is Law No.2 2016,Local Government (Amendment) Law 2016 which limits the tenure of Local Government Councils to two years from the date of Oath of Office.
  5. That Local Government Law, Cap. 82 laws of Sokoto State 1996 was repealed on 24thJanuary, 2000 16 years before the election and swearing in of the Plaintiffs.
  6. That contrary to the deposition in paragraph 9, the Local Government elections were conduct (sic) in line with Local Government Law 2008 as amended by Local Government (Amendment) Law 2016.
  7. That in fact, all the Election petitions challenging the Local Government Elections including the one against the 1st Claimant, were determinedby Election tribunals constituted under the relevant provision of  the Local Government (Amendment) Law 2016.
  8. That separation (sic) of tenure of Local Government is by operation of law and all the Local Government chairmen including the plaintiffs duly handed over and also full (sic) and returned code of conduct for declaration of assets at the end of tenure as provided by law.

Submitting for the defendants in his written address, the learned Suleiman SAN urged the court to discountenance all reference made by claimant’s Counsel to Local Government Law 1983, Cap. 82 Laws of Sokoto State 1996, because it is inapplicable and would amount to a waste of precious judicial time for the Honourable Court to embark on such odyssey, the law having been repealed by Local Government Law 2000 signed into law on the 24th January, 2000.

That the pith and substance of Section 7 of the Constitution of the Federal Republic of Nigeria 1999 as amended is to vest the power to legislate for Local Government concerning tenure, finance, and function et cetera reside completely, exhaustively and exclusively on the State House of Assembly.

That Although the section did not mention tenure of the Local Government Council, but implicit in the power to establish a body lies the power to be responsible for the tenure of such body particularly given the fact that no mention of tenure was made in the constitution. Especially if we construe section 7 liberally and apply the principle of Ejusdem generis for the words “establishment, Structure, Composition, finance and functions” it will include ‘’tenure”. Counsel relied on the case of ATTORNEY GENERAL ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2002) 17 WRN 1 at pages 108-109 and 185-186.

Learned Counsel submitted that claimants’ reliance on the Sokoto State Local Government Law Cap. 82 of 1996 as the legitimate Law that prescribes the tenure of Local Government Councils is an admission that it is the State House of Assembly that has that power with respect to the tenure of Local Government Council as that law was passed by Sokoto State House of Assembly, and since the house has the power to pass into Law Cap 82, it also has the power to amend it.

The learned Silk further submitted that buying party nomination forms from parties has nothing to do with tenure of office of Local Government Council, but to determine who will be the flag bearer/candidate of a particular party and that the Local Government Law was amended before the election of Local Government Council and therefore the out-gone chairmen cannot be vested with legal right to challenge a Law that was passed before their assumption of office and after they served their legitimate tenure of office. Local Government Law does not regulate electoral matters & process, but Sokoto State Electoral Law. That the tenure of the claimants had expired by effluxion of time.

  1. DEFENDANTS PRELIMINARY OBJECTION

The defendants also filed a preliminary objection to the competence of the suit and the jurisdiction of this Court on the following grounds;

  1. The Subject matter of the suit is not within the jurisdiction of the Court.
  2. Condition precedent to the exercise of the jurisdiction of the Court has not been fulfilled that is to say no pre action notice has been served on the defendants before commencement of this action.
  3. There is no cause of action or reasonable cause of action.
  4. The claims of the Plaintiffs are vague, unspecific in terms inconsistent, contradictory and mutually exclusive.
  5. The suit is an abuse of Court process.
  6. The Suit is Academic.
  7. The Honourable Court lacks the jurisdictional competence to entertain, hear and determine the suit.

In his written address in support of the objection, the learned defendants counsel apparently argued only grounds (a),(c) and (e), thus abandoning the other grounds of the objection, and they shall be so treated.

Counsel argued that generally, no Court of Law or tribunal embarks on any adjudication when it is clear and patent that it lacks the jurisdiction to entertain the action or that there is any feature of the action that ousts its jurisdiction. MADUKOLU V, NKEMDILIM (1962) All NLR 581 at 595 .

That a panoramic perusal of the third alteration to the Constitution of the Federal Republic of Nigeria, 1999 as amended will indubitably show that issues bordering on interpretation of the Constitution concerning Local Government Council tenure or interpretation of the relevant Local Government Law is not within the subjects upon which the National Industrial Court can exercise jurisdiction over.

On lack of reasonable cause of action, learned Silk submitted that reasonable cause of action is a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the respondent to fulfill his obligation in a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. The word “reasonable” means fair, proper, just, moderate, suitable under the circumstances.

That the main issue in this matter involves the tenure of a Local Government Council under a State Law. The suit was filed by the Plaintiffs after the expiration of the tenure not when they were in office. This is clearly an afterthought. Equally, there is nothing in the Plaintiffs affidavit that proves breach of their legal rights. The expiration of their tenure was by operation of Local Government, (Amendment) Law 2016 and not by any act of the defendants. Where a claim discloses no cause of action or reasonable cause of action the action is liable to be struck out.

On abuse of Court process, learned defendants counsel submitted that a panoramic perusal of the entire gamut of this case will show clearly that the applicants are not acting in good faith but brought this case in order to harass, irritate and annoy the respondents for discharging their legal duty for the overall health of our population and welfare of citizens which is part of the primary function of Government all over the world. Counsel relied on the cases of ATTORNEY GENERAL OF ANAMBRA STATE V  UBA (2005) ALL FWLR (PT. 277), ARUBO V. AIYELERI (1993) 3 NWLR (PT, 280) 126 AT 142 AND 146.

  1. CLAIMANTS’ JOINT REPLY TO OBJECTION AND ON POINTS OF LAW

Responding on the issue of jurisdiction, learned Ubong Akpan submitted that by virtue of Section 254C (1) (k) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the National Industrial Court is clothed with jurisdiction in matters:

“relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker. POLITICAL OR PUBUC OFFICE HOLDER, judicial officer or any civil or public servant in any part of the Federation and MATTERS INCIDENTAL THERETO”.

That this claim for entitlement derives from their employment as Local Government Chairmen which is clearly a matter within the jurisdiction of this Honourable Court by the unambiguous provisions of Section 254C(1) (a) of the constitution vesting in this court exclusive Jurisdiction in matters among others, relating to employment, labour and conditions of service and any matter incidental thereto.

That the specific mention of “political office holders” under subsection 1(k) of Section 254C(1) leaves no one in doubt as to the intendment of the constitution with regards to the jurisdiction of this Court in matters concerning the entitlement of political office holders.

Responding on the conduct of the claimants in participating in the election in spite of knowledge of the amendment of section 13 of the 2008 Local Government Law, learned claimants counsel submitted that the only impediment known to Law against the claimants’ case will be the Statute of Limitation. In the absence of such disability under the Limitation Law, the claimants are still within their legal rights to sue over the issue of tenure.

That an illegal act does not become legal simply by agreement of parties. In the event that this honourable Court holds that the State Assembly cannot validly legislate on the tenure of Local Governments, the acquiescence of the claimants cannot cure or waive that defect. It is a defect that goes to the root of the legislative powers of the House of Assembly and if the Court finds that the issue of tenure is ultra vires the State Legislature, then the substratum of that Law has thereby been removed and anything founded on that Law is invalid, null and void.

Furthermore, acquiescence will not apply if the Court finds that the Claimants had acquired vested rights under the Local Government Law of 2008 by reason of the various acts of forbearance they suffered preparatory to the March 2016 Local Government elections.

Responding on whether the Local Government elections held on 13th March 2016 was conducted under the Amended Local Government Law of 2016, learned claimants counsel repeated and emphasized his earlier arguments on the vested rights acquired by the claimants, argued in the alternative in the written address in support of the originating summons.

It is now settled law that a reply on points of law is not an opportunity for counsel to reargue, repair or improve on his earlier arguments. See.

ECOBANK NIGERIA LIMITED v. ANCHORAGE LEISURES LIMITED & ORS(2016) LPELR-40220(CA) where the Court held;
 

“By law where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the Court. That was the stance of the Lower Court and the holding is within the ambit of the law. See OKPALA VS IBEME (1989) 2 NWLR (PT 102) 208; FRN VS IWEKA (2011) LPELR (9350) CA; OPENE VS NJC (2011) LPELR (4795) CA. In UBA PLC VS UBOKOLO (2009) LPELR (8923) CA this Court held that a reply brief is not meant to improve the quality of the argument in the Appellant’s brief. In the same way, a reply on point of law is not meant to improve on the quality of a written address.

On this ground, the Court hereby discountenances this part of the reply.

  1. COURT DECISION

The defendants have raised a preliminary objection to the competence of this suit and the Jurisdiction of this Court. The duty of this Court is to first determine whether or not it has jurisdiction and that is what I shall proceed to do.

The Jurisdiction of this Court is provided for in Section 154(c) of the constitution. The learned Silk has argued thus;

That a panoramic perusal of the third alteration to the Constitution of the Federal Republic of Nigeria, 1999 as amended will indubitably show that issues bordering on interpretation of the Constitution concerning Local Government Council tenure or interpretation of the relevant Local Government Law is not within the subjects upon which the National Industrial Court can exercise action over.

On his own part, learned claimants counsel relied on Section 254C (1) (a) and (k) of the Constitution to contend that this court has Jurisdiction. The jurisdiction conferred by Section 254C (1) (a) and (k) of the Constitution is as follows;

(a)  Relating to or connected with any Labour, Employment, Trade unions, Industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(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 claimants are public servants and are challenging their removal from office, certainly they must anchor their claim on an instrument, a Law or Laws including the Constitution. I have carefully read the whole of section 154(C) 1 of the constitution and there is nothing in it to suggest that interpretation of the Constitution concerning Local Government Council tenure or interpretation of the relevant Local Government Law is not within the subjects upon which the National Industrial Court can exercise jurisdiction over. The National Industrial Court, as a superior Court of record can interpret the provisions of the Constitution or any other Law in Nigeria so far as such Law is relevant for the determination of the rights of a litigant in a matter over which the Court has Jurisdiction. It is not the Law that calls for interpretation which determines the jurisdiction of the Court but the subject matter or dispute. See the judgment of this Court in ODUSOTE & ANOR. V. LAGOS STATE GOVERNMENT & ORS (2012)28 N.L.L.R (PT 80) P225 AT 269 where this Court, per Kanyip J, held thus;

“…the Jurisdiction of the Court is subject based, which means that any legal entity that can sue and be sued can approach this court if the grievance in question falls within any of the subject matters over which the court has Jurisdiction”.

The claimants are public and political office holders and the subject of dispute is tenure of office/removal from office and emoluments, these matters concern condition of service. It is my firm view that these are matters within the contemplation of Section 254C (1) (a) and (k). I so find and hold.

On reasonable cause of action, learned silk argued that there is nothing in the claimants’ affidavit that proves breach of their legal rights and that the expiration of their tenure was by operation of Local Government (Amendment) Law 2016 and not by any act of the defendants.

Whether or not the tenure of the claimants has expired by virtue of the said Local Government amendment Law is already an issue for determination in this suit and the argument of the defendants to the contrary cannot be the basis for saying that the claimants have no reasonable cause of action. Having admitted that the claimants were elected chairmen, the claim that their tenure has not expired and that the defendants purported to replace them is no doubt a reasonable cause of action. I so find and hold.

On abuse of court process, the argument of learned counsel for the defendants is that a panoramic perusal of the entire gamut of this case will show clearly that the applicants are not acting in good faith but brought this case in order to harass, and annoy the respondents for discharging their legal duty for the health of our population and welfare of citizens which is part of the primary function of government all over the world.

Learned Counsel did not point out what constitutes bad faith and harassment by the claimants in this case. As earlier held, the claimants have a reasonable cause of action so their suit per se cannot and it does not constitute abuse of court process. I so find and hold.

On the whole, the preliminary objection is lacking in merit and same is hereby dismissed.

Turning now to the merit of the case, the first issue has to do with the legislative competence of the Sokoto State House of Assembly to legislate on the tenure of Local Government Councils. Learned claimants counsel argued that the State House of Assembly can legislate on every item listed in Section 7(1) of the Constitution except “tenure” because it is not mentioned and what is not mentioned is omitted and not included. Learned counsel however relied on the Sokoto State Local Government Law of 1996 as the applicable Law. It must be noted however that the said Law is deemed to be a Law of the Sokoto State House of Assembly which came into effect on 24/1/2000 by reason of Sokoto State Gazzette No.1.vol 35 of 2000. That being the case, the Sokoto State House of Assembly has the right to amend or repeal its Law which it did by repealing the said 1996 Law, CAP 82 in Section 80 of the 2000 Local Government Law of Sokoto State and by repealing the said 2000 Law in Section 83 of the 2008 Local Government Law and subsequently amending Section 13 thereof in 2016.

It is true that Section7(1) of the Constitution did not mention the word ”tenure” but we are neither left without constitutional guide nor without Judicial  authority on where lies the power to legislate on the tenure of Local Government   Councils.

The first approach is to look at the legislative lists in the second schedule to the 1999 constitution which contains both the exclusive and concurrent legislative lists. Without much ado, the tenure of Local Government Councils is not in any of the two lists. By judicial authorities, it automatically falls in the residual legislative list and so within the exclusive legislative powers of the states Houses of Assembly. See ATTORNEY GENERAL ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2006) 16 NWLR (PART 1005) P265

In  UAC OF NIGERIA PLC & ORS V. ATTORNEY GENERAL OF LAGOS STATE & ORS(2010) LPELR-5038(CA) the court held;

“A careful perusal and proper construction of Section 4 (of the 1999 Constitution) would reveal that the residual powers of Government were vested in the State. By residual legislative powers within the context of section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative lists and those matters the constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matters.”

 In ATTORNEY GENERAL ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2002) 17 WRN 1 at pages 185-186, Uwais JSC, as he then was, held at page 108-109 as follows:

  “True enough, section 7 (1) of the constitution which empowers the state Government to provide for the establishment, Structure, composition, finance and functions of Local Government Council in the State is silent on the tenure of elective officers in these Councils. By this silence the matter becomes residual as it is not on the Exclusive Legislative List. By virtue of section 4 (7) (a) residual matters are for the State, not federal to legislate upon. It follows that the tenure of elective office in local Government Council is a matter for the House of Assembly of a state··“

See also A.-G., LAGOS STATE V. A.-G., FED. (2003) 12 NWLR (Pt.833)

On the interpretation of Section 7(1) of the constitution, the Supreme Court, per Kalgo JSC  in the above case of ATTORNEY GENERAL ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION stated as follows:

“I hold that since section 7(1) (which has not been amended) provided expressly  that the government of every state shall establish local Government councils and provide for their structures composition finance and functions, the provision clearly implies that only the House of Assembly must be responsible for the tenure of members of such Council”

The learned SAN of counsel to the defendants was, in my view, on firm grounds when he submitted that “if we construe section 7 liberally and apply the principle of Ejusdem generis for the words “establishment, Structure, Composition, finance and functions” it will include ‘’tenure”.

It is therefore beyond per adventure that the Sokoto State House of Assembly has the power to legislate on the tenure of Local Government Councils. This issue which covers questions 1 and 2 is resolved against the claimants and in favour of the defendants.

The second issue which covers questions 3 and 4 is argued in the alternative to the first issue. The crux of this argument is to the effect that the claimants had already acquired a vested interest in the three year tenure under section 13 of the 2008 Local Government Law before the Sokoto State House of Assembly amended the said section and therefore it cannot affect the claimants. The defendants argue that the Local Government Law was amended before the election of Local Government Council and therefore the out-gone chairmen cannot be vested with legal right to challenge a law that was passed before their assumption of office and after they served their legitimate tenure of office. In response to this the claimants argued that an illegal act does not become legal simply by agreement of parties. In the event that this honourable Court holds that the State Assembly cannot validly legislate on the tenure of Local Governments, the acquiescence of the claimants cannot cure or waive that defect.

Now, by the affidavits, the election process that culminated in the swearing in of the claimants on the 1st day of June, 2016 started in October 2015.The election was first scheduled for 9th January, 2016 but was shifted to 13th March 2016. The claimants bought forms and won their party primaries to become flag bearers of their respective parties. They also bought forms from the Sokoto State Electoral Umpire, SSIEC. While waiting for the final match on 13th March, the Sokoto State House of Assembly amended the 2008 Local Government Law on 11th February, 2016 by reducing the tenure of Local Government Councils from 3 years to 2 years. The claimants went ahead and participated in the election in spite of their actual or deemed knowledge of this amendment. After serving for two years, the 3rd defendant acted in compliance with the amended law by issuing exhibit “B”. The claimants now argue that having acquired a vested interest in a three year tenure under the 2008 Local Government Law before the amendment of 11th February, 2016, their acquired vested interest cannot be affected by the Law because a Law cannot affect an already acquired interest.

The legal premise for the above argument that a Law cannot affect an already acquired interest is valid, but the problem is with the factual premise of the argument. Before 11th February, 2016, the claimants were party flag bearers or contestants along with other flag bearers or contestants from other parties. The vested interest acquired at this stage in my opinion does not go beyond the right to contest the election and no law can be made at that stage ro change the qualification to contest the said election. After the election of 13th March,2016, whoever was declared the winner acquired a vested interest in the tenure of a Local Government  Council Chairman according to the Local Government Law on the day he was declared a winner.

Having found that the Sokoto State House of Assembly has the power to legislate on the tenure of Local Government Councils and to amend the Law as it did, this Court is of the view that the amended Law, which came into effect on the 11th February, 2016 before the Elections of 13th March,2016 and the swearing in of the claimants on 1st  June, 2016, is binding on the claimants and it is too late to challenge such a Law made within the legislative competence of the House of Assembly after serving the prescribed two years. Indeed the situation would have been different if the House of Assembly did not have the competence to make such Law, the claimants would not have lost their right to complain.

I accordingly find and hold that the tenure of the claimants is as regulated by Section 3 of the Sokoto State Local Government (Amendment) Law, 2016, which provides for a two year tenure. This issue is resolved against the claimants and in favour of the defendants.

The third issue covers questions 5, 6, 7 and 8 on whether there is any vacancy in  Sokoto State Local Government Councils from 1st June 2018 and the power of the defendants to remove and replace the claimants. The law is as good as trite that the Governor or any authority cannot remove democratically elected Chairmen from office before the expiration of their tenure. SEE 1. A-G PLATEAU STATE V. GOYOL (2007) 16 NWLR (PT. 1059) 67 2.AG BENUE STATE V. UMAR (2008) 1 NWLR (PT. 1068) 311; 3.ABUBAKAR V. AG FEDERATION (2007) 3 NWLR (PT. 1022) 601

However, in this case, neither the Governor nor any of the defendants has done anything to remove the claimants from office before the expiration of their tenure. On whether any vacancy has occurred in the Sokoto State Local Government Councils to warrant replacing the claimants or the directives of the 3rd defendant as in exhibit “B”, the Court has already found that the tenure of the claimants is regulated by Section 3 of the Local Government (amendment) Law 2016.The implication is that the claimants were to serve for a period of two years. The claimants were sworn in on 1st June, 2016, their two years tenure expired on 31st May, 2018 and accordingly there was vacancy in the Local Government Councils in Sokoto State from 1st June 2018. This issue is resolved against the claimants and in favour of the defendants.

The last issue covers questions 9, 10 and 11 and they relate to the power of this Court to make the necessary orders to give effect to its judgment. The powers of the Court to nullify an unlawful Act, order reinstatement and payment of entitlements of successful claimants as well as injunction against the unlawful Act cannot be questioned. However, in this case, the claimants have lost the case and thus no such orders can be made in their favour. The issue is resolved against the claimants and in favour of the defendants.

On the whole, all the questions are determined against the claimants. The suit of the claimants is accordingly dismissed for want of merit.

I make no order as to cost.

Judgment is read and entered accordingly.

…………………………….

HON. JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO
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