On 11th July, 2024, the Supreme Court of Nigeria delivered a landmark Judgment relating to what is now commonly referred to as the Local Government Autonomy suit. Indeed the Supreme Court in this epocal and jurisprudentially laden judgment made far reaching pronouncements on many issues relating to the Federation, the States and Local Government Area Councils in relation to accessibility of funds statutorily provided for the Local Government Areas. The joint account for the State and the Local Government Areas and the economic conundrum that have befallen the disbursement since 1999 was another thrust of the suit. This is the case of A-G FEDERATION VS. A-G ABIA STATE & 35 ORS (UNREPORTED) SC/CV/343/2024 DELIVERED ON 11TH JULY, 2024.
As expected the decision attracted several accolades from laymen, jurists, scholars, legal pundits and legal practitioners. However, as expected also there is the other side of the divide who differ entirely. Their contention primarily, is that it amounted to judicial legislation and making pronouncement against the principle of Federalism. Even politicians also had their day and say.
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Dr. Alex A. Izinyon, SAN, Ph.D, OFR is a Senior Advocate of Nigeria and practicing in Abuja.
This is quite understandable and permissible in jurisprudence as it allow for various schools of thoughts for and against. Afterall, these are the thesis and the antithesis which produce the synthesis in any society which crystalize into new proposition. Apologies to the German Philosopher Friedrich Hegel’s dialectics of a thesis that leads to its reality, an antithesis that contradicts the tension between the two and is resolved by a synthesis. Thus in common parlance there cannot be joy without sadness, laughter without cries, bad without good etc. It would be a miserable world and monotonous, if it is just one way traffic – positive without negative following the Hegelian construct. Therefore there must be argument for and against. It is in this light, that the beauty of those in support and against this suit can be appreciated. This is the beauty of democracy in a balanced society.
However, this write up has taken up on another dimension, the synthesis, to wit: the perspective of the Supreme Court as a court of law and policy in the course of balancing the socio-economic and political issues, in reaching the final decision in the interest of justice.
The Supreme Court of Nigeria indubitably and constitutionally remains the final court of the land. They are final in all ramifications of finality in any dispute that are brought before it. This is because there is no other Appeals after their Judgment, except to God Almighty, where no mortal can file processes and argue same and return to us mortals, alive.
This brings to mind the words of the famous Jurist and legal icon Hon. Justice Oputa, JSC of blessed memory, quoting the American jurist Hon. Justice Robert Jackson in ADEGOKE MOTORS LTD V. ADESANYA & ANOR (1989) 3 NWLR (PT.109) 250 AT 274, PARA G on the finality of the Supreme Court’s Judgment where he puts it pungently thus:
“We are final not because we are infallible; rather we are infallible because we are final.”
The Supreme Court of Nigeria as a court of law and policy, over time even though final, have taken into consideration social, economic and political factors or called it the reality of time in arriving at certain decisions as a policy court. These are decisions that have a larger touch on the society as a whole, like the Nigerian citizens as a whole.
The Supreme Court of Nigeria over the years had given laudable Judgments as a policy court. These can be located in books and articles which are not the task of this space. I shall however pick a few to drive home this issue – the Supreme Court as a policy Court.
We are grateful to providence that since 1999 the boat of democracy is still on course at the high sea despite its short comings. However, among the three tiers of Government, the Federal, the State Governments and the Local Government Are, it seems only the Federal and the State Governments are visible so to speak in many respects. The Constitution makes provision for 774 Local Government Areas under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in the First Schedule and they are expected to be autonomous. It is no longer news that apart from the few State Governors who had kept to this autonomous nature of the Local Government, others have swallowed them up as part of their departments and in most cases dissolved the democratically elected Local Government Area Councils and appointed Caretaker Committees. Are we not as Nigerians eyewitnesses to these happenings in the last 25 years of democracy? No soothsayer or Prof. Peller of blessed memory is needed, to tell us so.
It was only during the military regime that Local Government Area Councils were visible by reason of developments. From 1999, these Local Government Councils after dissolution by the Governors, are replaced by their lackeys and surrogates to carry out their whimps and caprices. We cannot pretend about that. Have we forgotten despite the Supreme Court’s pronouncements on the illegality of such practices – that the Governor of a State cannot dissolve a democratically elected Local Government Council and appoint Caretaker Chairman when the tenure of the office holder as Chairman has not expired – their song and beat continued non-stop?
Have we forgotten so soon that apart from some few States, no election has been held in many of the Local Government Areas, but run by Caretaker Committees in Nigeria for over 10 years. Indeed have we forgotten the case of A-G LAGOS STATE VS A-G FEDERATION (2004) 18 NWLR (PT. 904) 1 where despite the clear provision of Schedule 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which listed out 20 Local Government Areas for Lagos State, the then Governor of Lagos State created additional Local Government Areas which prompted the then President to withhold the entire Lagos State allocation, which included the Constitutionally 20 Local Government Councils and the additional created Area Councils? The Supreme Court in that case on ground of policy as a policy Court held that the President had no power to withhold the State allocation or suspend it and that the State was entitled to the said allocation to be so released but tied to the 20 Local Government Councils created by the Constitution and not the additional Local Government Areas created. The decision was unanimously on this issue.
The court from 1999 has never kept quiet on this. Under the 1979 Constitution, one of such reported cases to be first delivered by a State High Court was the case of SENATOR VICTOR AKAN & ANOR V. A.G CROSS RIVER & 7 ORS. (1982) 3 NCLR 881 where Esin J. held that a Governor has no power to appoint any person or body of persons into a Local Government Council where a law by the State House of Assembly provides for Local Government Councils that are democratically elected.
Indeed under the Constitution of the Federal Republic of Nigeria, 1999 the courts have never hidden their disdain for the unconstitutional acts of the State Governors dissolving democratically elected Local Government Chairmen and appointing Caretaker Committees in their stead. The cases are numerous.
Let us pick some of them to drive home this point. One of such cases is EZE & ORS. VS. GOVERNOR OF ABIA STATE (2014) 14 NWLR (PT. 1426) 193. Recall in that case, the Plaintiffs were elected democratically as Chairmen and Counselors for their respective Local Government Areas for a period of three (3) years. However in June, 2006, the Governor dissolved the Local Government Councils and appointed Caretaker Committees. The Plaintiffs sued and Judgment was given by the High Court on the 10th October, 2007 in their favour. The trial court substantially granted their prayers but refused to return them to finish their tenure as their remaining tenure had elapsed during the pendency of the suit, but only entitled to be paid their salaries and allowances. They were not satisfied insisting the trial court should have declared that they finish the remaining part of their tenure. They therefore appealed to the Court of Appeal which said Court allowed the appeal, granted all their reliefs but refused relief 8 relating to their reinstatement. Still dissatisfied, they appealed to the Supreme Court. Judgment was delivered on 11th July, 2014 (about 8 years of litigation). The Supreme Court allowed the appeal, declared that the dissolution was unconstitutional, illegal and void. In one of his pronouncements, Hon. Justice Akaahs, JSC, painted the ugly scenario thus at page 220, Paras. C – H:
“The frequent dissolution of Local Government and appointment of Caretaker Committee by State Governor in the country is not only illegal but highly undemocratic as section 7(1) of the Constitution of the Federal Republic of Nigerian guarantees the existence of democratically elected Local Government Councils.” (Emphasis mine)
For lack of better expression, here are some of the excerpts of the Judgment. At Page 214, Paras. E – F:
“On a careful reading of the above it becomes clear that it is the duty of the Governor to ensure that the system of Local Government continues unhindered. Dissolving Local Government councils and replacing them with caretaker committee amounts to the Governor acting on his whims and fancies, unknown to our laws, clearly illegal. It is the duty of the Governor to ensure their existence rather than being responsible for destroying them”
At page 215 – 216, Paras. G-A:
“All courts in the land are courts of law and equity. Elected persons for a fixed term of years can only be removed from office if found to be in breach of the rules governing the office or for infamous conduct. If such a person is removed from office in a manner the court finds to be wrong, he shall be entitled to all his entitlement, to wit: salaries, allowances etc. A court of equity will not allow the executive to get away with wrongful acts rather it would call the executive to order and ensure that justice is not only done but seen to be done. Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law.”
This was justice according to law and policy and the Supreme Court acted as a policy Court in this regard. Imagine after 8 years, when other set of Local Government Area Council Chairmen and Councilors would have been elected and tenures running, it would be a setback to sack those democratically elected to vacate their seats, without being paid their salaries, allowances, etc for the 23 months which were the remainder of their tenure of office but for the illegal dissolution.
The Governors never took heed to these pronouncements despite their respective States being manned by Attorneys General and Commissioners of Justice.
Again on the 7th May, 2021, same issue, same Governor’s illegality and unconstitutionality in the dissolution of Local Government Area Councils came for adjudication in the case of APC V. E.S.I.E.C (2021) 16 NWLR (PT. 1801) 1. Excerpt from the apex Court at Page 59, Para. A, per Hon. Justice Kekere, Ekun, JSC (as he then was) puts it pungently thus:
“A Governor who occupies his office as a result of a democratic exercise has a bounden duty to preserve, in all its ramifications, the existence of democratically elected Local Government Councils. It boggles the mind that the product of a democratic exercise would seek to deny others the benefit of the same process.”
Page 62, Paras C – D it was held further thus:
“In view of the powerful and authoritative pronouncements of the Court of Appeal and this court on this same point; I should think the option available to the respondents’ counsel, as officers of the courts, was to have, guided by rule 32(2)(j) & of the Rules of Professional Conduct for Legal Practitioners, 2007, tried fervently and honourably, in aid of administration of justice not be seem to promote a case which to their knowledge was false. Such display of professional courage and candour would have saved costs to all concerned, including the courts (from the trial High Court through the Court of Appeal to this court).”
Other cases decided by the Court of Appeal and the Supreme Court maintaining the said sacrosanct positions that no Governor has the Constitutional right to dissolve democratically elected Local Government Council and appoint Caretaker Committee were cited by the Supreme Court in the case under discussion. They cited all these cases before arriving at this position. These are the cases of AJUWON V. GOV. OF OYO STATE (2021) LPELR 55339 (SC); GOV. OF EKITI VS. OLUBUMO (2017) 13 NWLR (PT. 1551) 7; EZE V. GOV. OF ABIA STATE & ANOR (2014) 14 NWLR (PT. 1426) 191, FRIDAY V. GOV. OF ONDO STATE (2022) 16 (NWLR) (PT. 1857) 585 AT 642; BARR. ENYINNE ONUEGBU & ORS. V. A.G IMO STATE (2012) LPELR 19691 (CA).
With all these before us, if the Hon. Attorney General of the Federation on behalf of the Federal Government decided to approach the Supreme Court, would it serve the interest of the generality of Nigerians to throw away this case because of strict legalism since the constitution provides for the said joint account and that it is only the National Assembly that can legislate to remedy if there is any wrong and therefore throw away the case? That cannot be justice
In all these years, where is the National Assembly after the Supreme Court decision in A-G LAGOS STATE VS. A-G FEDERATION (SUPRA) to correct by legislation or amendment that the joint account referred to are for the State and the Local Government Areas, created by Schedule 1 of the 1999 Constitution. Despite the pronouncements of the Supreme Court on the unconstitutionality of the Governors’ sacking duly elected Local Government Chairmen and their Counselors in the cases just cited over these years, has the National Assembly risen to the challenge urgently to remedy this situation? They did not and may never.
The Supreme Court of Nigeria, in exercise of its powers as a court of law, must also take into consideration as a policy court where there is need for the protection of the interest of generality of Nigerians, take into consideration, social, political, economic and other exigencies of the time to give justice a humane face instead of hiding under any façade of “law is law” and that “their hands are tied”. The Supreme Court in such circumstances must untie its hands in the interest of justice as alluded earlier in those cases that had been decided by the Supreme Court particularly relating to the illegality of the sacking of democratically elected Local Government Council which decision with respect, were phyric victory. This is because in most of those cases their tenure had long expired due to years of litigation except for the monetary compensation that may have been awarded. In this circumstance, the essence of justice in the case has been defeated. They never enjoyed the office they were elected into. Therefore in the face of these lapses, when the issue of the Local Government Autonomy came before the Supreme Court, it would have been a traversy of justice to throw the baby and the bath water away on the altar of sheer legalism or judicial usurpation of legislative power or judicial restraint.
Are we saying that the Supreme Court cannot adopt one of their enumerated approaches when construing the Constitution by giving it both liberal and purposive approach in order to attain justice? This they can, and they did so clearly in this judgment and stated so unequivocally.
The Supreme Court possesses the legal imprimatur in the prevailing circumstances, having regard to previous antecedents, social, economic and political factors, in giving purposive interpretation instead of waiting for the National Assembly to do the needful in such a time that will never come. Apologies to Lord Denning MR that such days may never come. Whether by judicial activism or usurpation, the bottom line is on ground of policy (public policy though an unruly horse but the rider can tame it), it was in the interest of grass root democracy which is rooted in the Local Government Areas of Nigeria, that the Supreme Court of Nigeria had to give flesh and life to, on this issue of joint account which have unleashed untold deprivation on the 774 Local Government Areas of the country for over two decades.
The Supreme Court as a policy Court in this particular case went into their legal archive and decisions where they had declared that the dissolution of a democratically elected Local Government Council by a Governor of a State is unconstitutional and illegal. It was not therefore surprising that the Supreme Court went into details to review the antecedent of what had been happening. It interpreted the provision of Section 162(3) of the 1999 Constitution, and that it cannot mean that the State Governors would hold and disburse the funds on behalf of the Local Government Council the said money coming from the Federation account, as sub sections (6),(7) & (8) of the said Constitution stipulates that all monies belonging and due to Local Government Council from the Federation Account, should be distributed to the Local Government Council in the State. This view is to cure the mischief by judicial fiat as a policy court, the incurable injury that has been done to the Local Government Area Councils for two decades without the National Assembly doing the needful.
The Supreme Court eloquently re-echoed it long line of decisions on the provision of Section 7(1) of the Constitution that expressly provides for democratic elected Local Government Council and if that is the case, it should be Local Government Council that should control and manage this fund including allocation from the Federation belonging to the said Local Government Council for the wellbeing and development of the said Local Government Area. It was on this platform the Supreme Court referred to its earlier decisions where they held that a Governor of a State cannot dissolve a democratically elected Local Government Council.
Let it be said that the Supreme Court has always risen to the task when it involves policy as a policy court, to make decision in the interest of justice by adopting a more purposive approach in the interpretation of any provision of the law especially the Constitution. In 1979, the Supreme Court in AWOLOWO VS. SHAGARI (1979) 6-9 SC 51 adopted a more liberal and purposive approach in statutory interpretation by adopting the pronouncement of Lord Reid in JONES V. DPP when it said.
“The construction that two-thirds of 19 States in the Federation is 12 2/3 States may be correct in the abstract but in relation to the Constitution and the Electoral Decree, it is unreal. Certainly, in relation to the Presidential Election now the subject of appeal, the Fedeco did not delimit any two-thirds State, whether in Kano or elsewhere. Fedeco used 13 States as a criteria for voting and calculated two-thirds of the total votes cast in the 13th State to ascertain whether the votes cast for the 1st respondent in the whole 13th State was up to 25% of two-thirds of the total votes cast in the whole State. This is a departure from justice in mathematics and is a serious violation of the Electoral Decree 1977 as amended. It constituted a flight from the truth and it is the truth the Court seeks in all matters in dispute. Where there are two possible meanings conveyed by the words of a statute, it is the most reasonable one that should be adopted. Where the other meaning leads to absurdity or evinces internal contradiction, that meaning should be dropped for the first as the legislature never intends to be absurd or contradictory. The word ‘each’ in the Sub-section (1)(c)(i) of Section 34A qualifies a whole State and not a fraction of a State and to interpret it otherwise is to overlook the disharmony between the word “each” and the fraction “two thirds”. Two-thirds of nineteen, to avoid any disharmony, gives thirteen.”
In 2022, when Nigerians were groaning under harsh economic hammer following the redesign of the Naira by the Central Bank of Nigeria as ordered by the Federal Government of Nigeria, the Supreme Court of Nigeria as a court of law and policy came to the rescue and made notable pronouncement having regarding to the economic situation of the hour. That is the case of ATTORNEY GENERAL OF KADUNA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2023) 12 NWLR (PT. 1899) 537. It threw away all the legal technicalities that, according to law, would have defeated the substance of that case. Legally speaking how can only the Governors of 10 States as Plaintiffs on behalf of 36 States and all Nigerians be suing the Attorney General of the Federation and two other States who were joined as co-Respondents? Indeed the Supreme Court in this case held that sovereignty belongs to the people of Nigeria and as a policy court granted the Plaintiffs’ reliefs. Those reliefs were not only for the Plaintiffs’ who were 10 States but for the generality of 36 States of the Federation and the FCT and indeed all Nigerians, which were all under the prevailing economic hardship of the notorious Naira redesign.
In other jurisdictions, the Supreme Court has made pronouncements as a policy Court. In GEORGE BUSH VS. ALBERT GORE 531 US 2000, as a policy court it refused the strict adherence to recount of ballot manually. There is no doubt that the Supreme Court of Nigeria in delivering its Judgment in the suit at hand, has taken into account that even though the constitution provides for this joint account and its modality involving the National Assembly in view of what has been canvassed, it must do the needful in the circumstance. After all, the cases referred to this piece where the Governors have been sacking unconstitutionally, the democratically elected Local Government Councils of the States, nothing had happened to correct these illegalities for many years by the National Assembly. Would it have served the interest of justice to allow the perpetual bastardisation and economic iniquities against Local Government Area Councils by these Governors? The emphatic answer is a NO. The Supreme Court as a policy court indeed considered this issue rightly.
What is left is for the National Assembly to proceed with the enabling legislation to give teeth to this profound decision and make other adequate safeguards by legislation to ensure proper accountability and the relevant authorities to beam their search light in case the Local Government Councils fall short of this golden opportunity.
Dr. Alex A. Izinyon, SAN, Ph.D, OFR
