Ajuwon & Ors V. Governor Of Oyo State & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

In the Local Government elections conducted on 12th March, 2018 by the Oyo State Independent Electoral Commission (OYSIEC) (herein the 7th Respondent), the Appellants were elected for a definite term of 3 years after assuming the respective offices they were each elected into. Ten (10) months into the terms of 3 years, the Appellants were to remain in office, the 1st Respondent purporting to act pursuant to Sections 11 and 21 of the Oyo State Local Government Law 2001, as amended, dissolved (in May, 2019) the democratically elected Local Government Councils. The Appellants were removed from their offices of, either, the Chairman of the Local Government Council (LGC) or as Councilors in the LGCs. In anticipation of the intent of the Respondents to dissolve the duly elected LGCs, the Appellants firstly challenged in Court of law, the constitutionality of the powers vested in the 1st, 5th & 6th Respondents by Sections 11 & 12 of the Oyo State Local Government law to dissolve a duly elected LGC and remove democratically elected Local Government Chairman and/or Councilors and replace them with handpicked non-elected Transition/Caretaker Committees for being in violation of Section 7(1) of the 1999 Constitution, as amended. Their challenge came by way of Originating Summons. The trial Court agreed with them that such power vested on the 1st, 5th & 6th Respondents to dissolve duly elected LGC and remove democratically elected Chairmen and Councilors, and replace them with unelected handpicked Transition/Caretaker Committees were ultra vires and unconstitutional. The trial High Court granted several declaratory reliefs and issued injunctive orders in support of the declaratory reliefs in favour of the Appellants.

On 29th May, 2019, in contempt of the judgment and orders of the Oyo State High Court, the 1st Respondent dissolved the elected LGCs in Oyo State. He then appointed unelected Care-Taker/Transition Committees to run and manage the affairs of the Local Governments throughout the State. Thereafter, just in mere fait accompli, the Respondents, after their contemptuous affront to the decision and orders of the Oyo State High Court, decided to appeal the judgment — apparently (maybe) to fulfil all righteousness. On 15th July, 2020 the Court of Appeal (hereinafter called “the lower Court”) allowed the appeal, set aside the judgment and the orders made by the High Court, and consequentially struck out the suit for disclosing no reasonable cause of action. The lower Court had, in so doing, allegedly considered only the averments in the Respondents’ counter-affidavit. It is against this decision that the Appellants have appealed on 7 grounds of appeal.

The Respondents, by way of motion on notice filed on 4th November, 2020, raised Notice of Preliminary Objection to the competence of the appeal, which they wanted dismissed “in limine for being incompetent”. The motion was not moved nor was it argued. On the same 4th November, 2020 the Respondents (apparently 1st—6th Respondent, independent of the 7th Respondent) filed their joint brief wherein in paragraph 3 they challenged the competence of some specific grounds of appeal; namely: Grounds 2, 3, 4 and 5; and only particular (II) of Ground 7 of the Appellants’ 7 grounds of appeal. The purported Preliminary Objection did not challenge the competence of grounds 1 & 6, and ground 7 (except its particular (ii)). The attack on particular (II) of ground 7 is on the ground that it raises a fresh issue. I am yet to see the fresh issue allegedly raised by particular (II) of ground 7 which in substance complains that the lower Court was wrong for, on the principle of stare decisis electing not to be bound by this Court’s decision in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1

I want to believe that the Preliminary Objection, purportedly argued by the Respondents (1st—6th Respondents) in their joint brief of argument, was brought pursuant to Order 2, Rule 9 of the extant Rules of this Court. A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which Purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal: ADEJUMO & ORS v. OLUDAYO OLAWAIYE (2014) 12 NWLR (pt. 1421) 252 (SC); (2014) LPELR -22997 (SC). It is my firm opinion that, since this is a Court of justice as well as law, a respondent cannot by improper procedure complain about the impropriety of the appellant’s process. Afterall, he who comes to justice must come with clean hands. A competent preliminary objection is the one raised in accordance with the due process of law —Order 2 Rule 9(1) of the Rules of this Court in the instant case. The purported preliminary objection, being incompetent, shall be and is hereby discountenanced in the instant appeal.

Let me briefly highlight the basis of the decision of the lower Court that has agitated the filing of this appeal. The Appellants, as Plaintiffs, in their Amended Originating Summons had averred in their supporting affidavit in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 to wit:

9. That the Government of Oyo State in 2016 amended the Local Government Law by creating 35 Local Council Development Areas as contained in the Oyo State of Nigeria Gazette No. 21 Vol. 41 of 20th October, 2016 to be manned by democratically elected individuals. A copy of the Said Gazette is attached as “Exhibit A”.
10. That sometime in the year 2018 the Oyo State Independent Electoral Commission (OYSIEC) conducted election into the Local Government Councils and 35 Local Council Development Areas in Oyo State.
11. That I and other claimants participated in the said election by contesting for the position of Chairman and Councilors in our respective Local Government Areas.
12. That I and the other claimants were elected as Chairmen and Executive Officers of Local Government Councils and Local Council Development Areas during the said election conducted by the Oyo State Independent Electoral Commission (OYSIEC) on 12th May, 2018.
13. That I and the other claimants having been declared the winner of our respective Local Government Areas and Local Council Development Areas were issued certificate of return by the Oyo State Independent Electoral Commission (OYSIEC). Attached herewith as Exhibits B, B1, B2, B3, B4, B5, B6, B7, B8, B9 and B10 are the certificates of returns issued to some of the claimants.
14. That pursuant to our election and issuance of certificate of returns, myself and other claimants were subsequently sworn in as Chairmen and Councilors of our respective Local Government Councils and Local Council Development Areas.
15. That upon assumption of Office, we began to discharge our duties and functions in accordance with the relevant laws.
16. That after the 9th March, 2019 election into State Houses of Assembly and Governorship election, the 1st defendant and top officers of his political party had a meeting on the political developments in Oyo State.
17. That at the meeting, the 1st defendant informed all the members at the meeting of his plan to remove the Chairman and vice chairman of the 33 Local Government Areas in Oyo State, dissolve the 33 Local Government Councils and appoint a transition Committee comprising loyal members of the party so as to restructure the political landscape of his party in the State.
18. That the defendants are planning to dissolve all the Local Government Councils and Local Council Development Areas Oyo State and replace them with appointed persons known as transition committee.
19. That in view of the above, we then sought the legal advice of our Counsel, Mr. Kunle Sobaloju, Esq. in respect of the said plans of the defendants to remove the chairmen and vice chairmen and dissolve the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
20. That I was informed by our Counsel Mr. Kunle Sobaloju, Esq., on Friday, 15th March, 2019 at his office at 30, Old Lagos Road, Ibadan and I verily believe him as follows:

(i) That the defendants have no power or authority to dissolve any democratically elected Local Government Council in Oyo State or suspend or remove any person democratically elected into any Local Government Council and Local Development Areas in Oyo State.

(ii) That Section 11 and Section 21 of the Local Government Law of Oyo State 2001 (as amended) violates Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, ultra vires, null and void.

(iii) That any law, order or directive empowering the Governor Of Oyo State or any person whosoever to dissolve Local Government Councils and Local Council Development Areas in Oyo State whose tenure is yet to expire is unconstitutional, ultra vires, null and void.

(iv) That the 1st defendant lacks the power to dissolve the executive council of all or any of the 33 Local Governments and 35 Local Council Development Areas in Oyo State.

(v) That the 1st, 5th and 6th defendants also lack power to remove a democratically elected Local Government Chairman and Councilor in Oyo State.

(vi) That it is necessary to approach this Honourable Court for the determination of the questions raised in our originating summons by which his suit was commenced.

21. That unless the questions raised in the originating summons is determined and reliefs sought are granted, the unlawful, unconstitutional and wrongful provisions of Section 11 and Section 21 of the Local Government Law of Oyo State, 2001 (as amended) will be employed by the defendants to carry out their plan to dissolve all democratically elected Local Government Council in Oyo State in disregard to the Constitution and to the detriment of myself and other claimants.

​The Defendants, the Respondents herein, filed a joint counter-affidavit wherein in one breath, in paragraph 3 particularly, they denied as false all the averments in paragraphs 2, 16, 17, 18, 20(i), (ii), (iii), (iv) & (v), 21, 22 and 23 of the supporting affidavit. In paragraph 4 of the counter-affidavit the Defendants further aver that “paragraphs 17 and 18 of the supporting affidavit are speculative and futuristic”. In another breath, they averred in paragraph 5 thereof —

5. That in response to paragraph 20 (i, ii, iii, iv, v) of the claimants’ affidavit in support of the Originating summons, I know as a fact that the Local Government Law of Oyo State empowers the 1st Defendant to dissolve the executive of the Local Government Councils.

In apparent acknowledgment of the unconstitutionality of a similar provision in the Local Government Administration Law of Ekiti State struck down in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1, the Defendants, in paragraphs 6 of the counter-affidavit, wit —