Government of Kogi State & Ors V. Adavi Local Government Council (2005)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

By an originating summons, the plaintiffs before the Kogi State High Court of Justice, holden at Okene (lower court) raised the following questions for determination –

“(i) Whether the 2nd defendant could purport to pass a bill creating additional local government in Kogi State without strict adherence to the provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(ii) Whether the 3rd defendant could purport to assent to a bill purportedly passed by the 2nd defendant in clear contravention of the provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(iii) Whether the defendants jointly and severally could purport to carry out or give effect and or implement the provisions of any law purporting to create new local government councils in Kogi State in clear contravention of the mandatory provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(iv) Whether the provisions of the Kogi State Local Government Law 2002, creating new local government councils in clear contravention of the Federal Republic of Nigeria, 1999 (sic) are valid, extant and enforceable.

(v) Whether in any event, the defendants could in the purported execution of the law creating new local government councils in Kogi State defeat, take away, abrogate, delimit or in any other manner affect adversely the accrued rights of the plaintiff to their just due from the Federation account and the state’s accruable revenue due to them.”

Dependent on the above questions, the plaintiffs made the following claims: –

1. Declaration that the provisions of the Kogi State Local Government Law 2002 in so far as its provisions do not conform with the mandatory provisions of sections 3(6), 7(1) & (2) and section 8(3) read in conjunction with part 1 of the first schedule of the Constitution of the Federal Republic of Nigeria, 1999 is unconstitutional, null, void and of no effect whatsoever.
2. Declaration that the defendants jointly and severally could only lawfully, legally and constitutionally execute, give effect to and to implement only laws validly passed and assented to in accordance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
3. Declaration that the provisions of Kogi State Local Government Law 2002 are inconsistent with and are breaches of the mandatory provisions of sections 3(6), 7(1) & (2) and 8(3) of the 1999 Constitution and to that extent are unconstitutional, ultra vires the powers of the defendants, null and void ab initio.
4. Order of this honourable Court setting aside all the offensive sections of the Kogi State Local Government Law 2002, in so far as they are inconsistent with the provisions of section 8(3) of the 1999 Constitution of the Federal Republic of Nigeria.
5. Perpetual injunction restraining the defendants by themselves, their agents, privies, servants or any other person howsoever deriving authority and or power from them or at their behest from further giving effect to, implementing, enforcing or in any other manner take steps to actualize the provisions of the Kogi State Local Government Law 2002, to the disadvantage, detriment and or against the interest of the plaintiffs.”

A motion on notice was filed before the lower court on 23/5/2002 and the motion was asking for an interlocutory injunction restraining the defendants from further giving effect to implementing, enforcing or in any manner take steps to actualize the provisions of the Kogi State Local Government Law 2002, in so far as those provisions affect, concern, derogate from the accrued rights of the plaintiffs to their detriment or disadvantage pending the final determination of the substantive matter. After taking arguments on this motion, the learned trial Judge refused to grant interlocutory injunction and made an order for speedy trial of the substantive matter which was adjourned to 25/7/2002 for hearing.

On 25/7/2002, learned SAN for the plaintiffs showed his readiness to go on with the case, though he was served at about 8.45am with a counter-affidavit to the originating summons and a notice of preliminary objection. This notwithstanding, learned SAN showed his readiness to go on with the preliminary objection.

Learned Counsel for the defendants as well showed his readiness to go on with his preliminary objection. The lower Court look the preliminary objection on the day and reserved ruling for 8/8/2002.

On 8/8/2002, ruling was delivered by the learned trial Judge in which he overruled the preliminary objection and adjourned the substantive case for hearing on 25/9/2002.

It is against that ruling, the defendants now as appellants filed their notice of appeal to this court. The notice of appeal contained one ground of appeal.

In their brief of argument, the appellants formulated the following issue for determination.