WHAT THE SUPREME COURT DECIDED IN THE LGA AUTONOMY CASE- PART 3

(PRELIMINARY OBJECTIONS, CASE OF THE PARTIES AND THE JUDGMENT OF THE APEX COURT)

Part 1 of these serialized interventions on the judgment of the Supreme Court in Suit No. SC/CV/343/2024 which the plaintiff filed on the 24th day of May 2024 via Originating Summons had dealt with the FIFTEEN QUESTIONS FOR DETERMINATION raised by the plaintiff.

Part 2 dealt with the FIFTEEN DECLARATIONS AND FOUR ORDERS SOUGHT by the Plaintiff against the 36 Defendants. As projected earlier, this concluding

Part 3 will dwell on the preliminary objections raised by the defendants, the case presented by both the plaintiff and the defendants and the reasoned judgment of the Supreme Court leading to what has crystalised as return of full democratic and fiscal autonomy in Local Government Councils as contemplated by the national Constitution.

It is instructive to note that the 36 defendants had filed preliminary objections, counter affidavits and written addresses in opposition to the Originating Summons. In return, the plaintiff filed a second further affidavit in response to all the counter affidavits filed by the 36 defendants and a composite written address in response to the preliminary objections of the defendants. As vividly captured in the lead judgment of Agbim, JSC, the six grounds of preliminary objections were essentially that the plaintiff (being the Attorney General of the Federation) has no right to bring the action as he has not suffered any personal injury and has not disclosed sufficient interest in the subject matter of the suit; that the subject matter of the suit is speculative, academic and hypothetical; that the plaintiff’s suit amounts to re-litigation and is caught by issue estoppel/res judicata; that the plaintiff’s suit, as constituted, failed to disclose the existence of any dispute between the Federation and States in line with section 232 of the CRFN, 1999 as amended, to justify the invocation of the original jurisdiction of the Supreme Court; that the States Houses of Assembly and Local Government Councils ought to be joined as parties to the suit; that the originating summons is incompetent for not being signed by Registrar of Court; and that the plaintiff’s suit is an attempt to amend or fill gaps in the Constitution of the Federal Republic of Nigeria.

Without going into the answers/replies of the plaintiff to the preliminary objections (because of space constraint), it is vital to underscore that the Supreme Court dismissed ALL the preliminary objections as lacking in merit and held among other things that-

(i) the Attorney General of the Federation is the Chief Law Officer of the Federation and the Federation can sue or be sued in the name of the Attorney General of the Federation.

(ii) The Attorney General has the right to institute civil proceedings in a court of competent jurisdiction in the public interest to protect public rights, enforce the constitution or other law, prevent public wrong and preserve public order.

(iii) The Federation has the right to protect the Constitution and the duty to ensure that no part of the Federation is governed contrary to the Constitution or by anybody that is not constitutionally empowered to do so.

(iv) The Federation has the right to protect any tier of the federal governance structure from going extinct or being destroyed and has the right and interest in the moneys in the Federation Account and the moneys distributed from that Account to the respective tiers of government and the allied right that the tier of government to whom money is distributed from the Federation Account gets it.

(v) The plaintiff showed that the cause for this suit is the flagrant violations of sections 1(2), 162 and 7(1) of the CFRN, 1999 as amended by the States that are endangering the continued existence of the Local Government as the third tier government in Nigeria and thereby dismembering the federal governance structure in Nigeria contrary to the intention and tenor of the 1999 Constitution.

(vi) The suit is validly maintained in the plaintiff’s name, that he has the right to bring this action, that the subject matter of the suit is not speculative, academic and hypothetical.

(vii) The plaintiff’s suit, as constituted, disclose the existence of a dispute between the federation and states in line with section 232 of the CFRN, 1999 as amended to justify the invocation of the original jurisdiction of the Supreme Court.

(viii) The signing and sealing of the originating summons being an administrative process of the Registry of the Court over which the plaintiff or claimant has no control, the failure of the Registrar of the court to sign or seal it would not vitiate the suit.

Outside the above dismissed preliminary objections, the summarised positions of the parties on the merits of the substantive suit are as presented hereunder. The case of the plaintiff was that-

(a) States have for decades persistently refused to pay to Local Government Councils the money standing to the credit of their Local Governments in the Federation Account in violation of the cited provisions of the Constitution.

(b) The Federation can validly pay the said money directly to their owners being the Local Government Councils to protect the intention or objective of the Constitution from being defeated.

(c) The governance of Local Government Areas by States using appointees or officers of States such as Local Government Caretaker Committees, Interim Councils and administrators amounts to governing or taking control of the government of a Local Government or a part of Nigeria, contrary to and in violation of cited provisions of the Constitution.

(d) The above mentioned acts of the States in violation of the Constitution have endangered the continued existence of the Local Government as a third tier of the Federal Governance structure, as most of them are now virtually extinct.

(e) To continue to disburse the funds due from the Federation Account to the Local Government tier of governance of the Federation to the Defendants in the absence of a democratically elected Local Government system in the Local Government Councils undermines the sanctity of the Constitution thus paving way for persons not constitutionally recognized as beneficiaries of the funds to expend them.

(f) It is not in the place of any of the Defendants to subject the funds remitted to the Local Government Areas in their States to any other sharing formula different from that used in disbursing the funds from the Federation Account and/or to make any deductions after the remittance of the funds to the State Joint Local Government Account and that neither is it in the place of the Defendants to expend the funds on behalf of the Local Government Councils on any item whatsoever.
On the other hand, the 36 defendants, without exception, opposed all the declarations orders sought by the plaintiff. In asserting that they were not in breach of the constitution, the defendants cumulatively countered essentially that-

(a) The Federation cannot validly pay the money standing to the credit of the Local Governments in the Federation Account directly to Local Government Councils.

(b) To do so would be in violation of cited provisions of the Constitution that mandatorily require that it be paid directly to the States for the benefit of their Local Government Council and that each State pay same into a State Joint Local Government Account maintained by the State.

(c) States are entitled to retain the said allocation and use it for the benefit of Local Government Councils and it is not the business of the Federal Government to concern itself with that.

(d) The failure of some of the States to organise the conduct of democratic elections of local government councils is not deliberate as there are subsisting orders of courts in pending suits restraining them from holding democratic elections of Local Government Councils in their States.

After considering the arguments presented by parties in the main suit, the Supreme Court held that the plaintiff’s claim succeeds as it has merit. Accordingly, the Supreme Court made the following DECLARATIONS and ORDERS:

1. That the 36 States of Nigeria, or anyone of them, acting through their/its respective State Governors and or State House of Assembly, are/is under obligation to ensure democratic governance at the third tier of government in Nigeria, namely, at the Local Government level.
2. That the 36 States of Nigeria, acting through their/its respective State Governors and or State Houses of Assembly cannot, using State power derivable from laws enacted by the State Houses of Assembly (anyhow so called) lawfully dissolve democratically elected Local Government Councils within the said State/State.
3. That the 36 States of Nigeria acting through their respective State Governors and of State Houses of Assembly using State powers derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or Executive Orders/other actions (any how so called) have no power to dissolve any of the democratically elected Local Government Councils within the said States/State and replace them/it with Caretaker Committees (anyhow so called).
4. That the dissolution of democratically elected Local Government Councils by the 36 States of Nigeria, or anyone of them, using State powers derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or Executive Orders/other actions (anyhow so called) is unlawful, unconstitutional, null and void.
5. That a State Government or the Governor of a State has no power to constitute, appoint or determine a Local government that section 7(1) of the CFRN, 1999 as amended has prescribed can only be by Local Government Councils democratically elected by persons in a Local Government Area.
6. That the amount distributed to and standing to the credit of Local Government Councils in the Federation Account can be paid by the Federation directly to democratically elected Local Government Councils.
7. That the amount distributed to and standing to the credit of a Local Government Councils in the Federation Account must be paid by the Federation to only democratically elected Local Government Councils and no other body or institution.
8. That any of the elected or other officials of the 36 States of Nigeria, who, through the instrumentality of either a State law or an administrative directive/order, dissolves or causes the dissolution of any of the democratically-elected Local Government Councils of their/its States has gravely breached the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); hence by that token has committed a gross misconduct.
9. That, by virtue of section 162(3) and (5) of the CFRN, 1999 as amended, the amount standing to the credit of Local Government Councils in the Federation account shall be distributed to them and be paid directly to them.
10. That a State either by itself or its Governor or other agencies has no power to keep, control, manage, or disburse in any manner allocations from the Federation Account to Local Government Councils.
11. That the current practice of States keeping, controlling, managing and disbursing Local Government allocations from Federation Account is unconstitutional and illegal.
12. That a Local Government Council is entitled to a direct payment from the Federation account of the amount standing to its credit in the said Federation account.
13. AN ORDER of injunction restraining the Defendants, by themselves, their privies, agents, officials or howsoever called from further collecting, receiving, spending or tampering with Local Government Council funds from the Federation Account for the benefit of Local Government Councils.
14. That the Federation or Federal Government of Nigeria through its relevant officials forthwith commence the direct payment to each Local Government Council of the amount standing to the credit of each of them in the Federation Account.
15. AN ORDER OF IMMEDIATE COMPLIANCE by the States, through their elected or appointed officials and public officers, with the terms of this judgment and orders made in this Suit; and successive compliance by successive State Government officials and public officers.
16. No order as to costs was made.
    The importance of this landmark judgment in Nigeria’s federal governance structure cannot be overemphasised. To put it mildly, it is well received by Nigerians. States were almost asphyxiating the Local Government Councils to undeserved extinction. As at the 24th day of May 2024 when this suit was filed, the following defendants/States accepted on record in their affidavits filed in the Supreme Court that they did not (for one flimsy reason or the other) have democratically elected Local Government Councils namely- Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Benue, Cross River, Delta, Enugu, Imo, Kwara, Ondo, Osun, Plateau, Sokoto, Zamfara. This is most worrisome because there are countless past decisions by the Supreme Court on the illegality and unconstitutionality of States truncating democratically elected Local Government Councils and replacing them with undemocratic contraptions (sole administrators, caretaker committees, transition committees), yet, the States would not desist. Historically, some of the earlier cases where the Supreme Court had decided against the States obstinately circumventing constitutionally guaranteed Local Government democracy include but are not limited to ATTORNEY-GENERAL, PLATEAU STATE v GOYAL (2007) 16 NWLR (Pt. 1059) 57, EZE v GOVERNOR OF ABIA STATE (2014) 14 NWLR (Pt. 1426) 192, GOVERNOR OF EKITI STATE v OLUBUNMO (2017) 13 NWLR (PT 1551) 1, ALL PROGRESSIVES CONGRESS v ENUGU STATE INDEPENDENT ELECTORAL COMMISSION (2021) 16 NWLR (Pt. 1801) 1 and AJUWON v GOVENOR OF OYO STATE (2021) LPELR 55339(SC).

It is evident that in the latest judgment, the Supreme Court did not want to leave anything to chance in ensuring full blown democratic and fiscal autonomy to the Local Government Councils. Hence, it had to decisively stamp a seal of finality on local government autonomy while observing with dismay that States have been “carelessly and consistently in breach of the provisions of the constitution guaranteeing democratically elected Local Government Councils with financial autonomy or independence”. However, for technical reasons, the Supreme Court did not make the very important “DECLARATION based on Question 10 of the Originating Summons that “… any elected or other official of the 36 States of Nigeria, who, through the instrumentality of either a State Law or an administrative directive/order, dissolves or causes the dissolution of democratically elected Local Government Councils of their State is liable to be arraigned during or at the end of his tenure (as the case may be) for criminal offences bordering breach of the Constitution/contempt of court and or breach of applicable criminal and penal laws.” The Supreme Court, per Abiru JSC, held that it was “not aware of any provision of the Constitution that criminalizes non-compliance with the Constitution”. That could have been the clincher or icing on the cake! This type of lacuna, gap or omission has therefore raised a compelling need for appropriate legislative interventions and amendments in Nigeria’s penal laws to criminalise willful, deliberate and reckless breach of constitutional functions, powers, duties and responsibilities by public office holders.

A new normal is possible!

Prof Obiaraeri, N. O.

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