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Home » Nigerian Cases » Supreme Court » Apc & Ors V. Enugu State Independent Electoral Commission & Ors (2021) LLJR-SC

Apc & Ors V. Enugu State Independent Electoral Commission & Ors (2021) LLJR-SC

Apc & Ors V. Enugu State Independent Electoral Commission & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellants, as plaintiffs instituted an Originating Summons against the respondents at the High Court of Enugu State for the determination of the following questions:

  1. Whether upon a proper interpretation of the provisions of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 3(1) and Section 4(3) of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004; the existence of a democratically elected Government System in the Seventeen Local Government in Enugu State is guaranteed.

​2. Whether the provisions of Section 12(1)(2) of the Local Government Law CAP 109, Revised Law of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provision Law, C4P 110, Revised Law of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee or Transition Committee or however called for a defined or undefined period of time to the position of Chairman of each of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section 7(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional null and void.

  1. Whether by the provisions of the Constitution of Nigeria, 1999, the 1st set of defendants have powers to appoint or select, a transition committee or Caretaker Committee to the position of the Chairmen of each of the Seventeen (17) Local Government Councils in Enugu State without conducting a Local Government election.
  2. Whether the defendants have powers to extend and elongate the tenure or term of 9th to 25th democratically elected Seventeen Local Government Council in Enugu State without a law validly passed by the 5th and 6th defendants.
  3. Whether the 1st and 2nd defendants are in violation of Section of the Local Government Law (supra) as amended Section 2 of the Local Government Law (amendment No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in the Enugu State of Nigeria Official Gazette No. 3, Vol. 19, 2010 for failure to appoint a date for Local Government election.
  4. Whether the claimants are entitled to an Order of Injunction against the Defendants in this case.
  5. Whether the 2nd to 18th claimants are entitled to be issued a Certificate of Return as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State.

In the event that the questions were answered in their favour, they sought the following reliefs:

  1. A DECLARATION that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 3(1) and 4(3) and 59 of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (Seventeen) Local Government Councils in Enugu State, by democratically elected Local Government Council is guaranteed.
  2. A DECLARATION that the provisions of Section 12(1) (2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law, CAP 110, Revised Laws of Enugu State, 2004 which allows the Defendants to appoint a Caretaker Committee, Transition Committee or however called for an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils’ in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void.
  3. A DECLARATION that the defendants’ appointment, and selection, or plans, arrangements to appoint or select a Transition Committee and/or a Caretaker Committee to the position of the Chairman of the Seventeen (17) Local Government Councils in Enugu State is a violation of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 3(1) and 4(3) of the Local Government Law, CAP 109, Revised Laws of Enugu State of Nigeria, 2004.
  4. A DECLARATION that by virtue or Section 4(1) (2) and Section 18(3) of the Local Government Law, CAP. 109, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amendment No. 5) Law of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010, the tenure of office of a Local Government Council Chairman is two (2) years commencing from the date of the first siting of the Council.
  5. A DECLARATION that the defendants have no power to elongate/extend the tenure or term of Office of the 9th to 25th Defendants being a democratically elected Local Government Chairmen without a law validly passed by the 5th and 6th Defendants.
  6. A DECLARATION that the plans, arrangement and preparations to continue in the occupation of the office of the Chairman of the Seventeen (17) Local Governments Councils by the 9th to 25th Defendants after January 4th, 2016 is illegal and a violation of Section 4(1)(2) and 18(3) of the Local Government Law, CAP 109, Revised Law of Enugu State of Nigeria, 2004 as amended by Section 2 of the Local Government Law (amended No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010.
  7. A DECLARATION that the 5th and 6th Defendants have no powers to confirm the appointment of Transitional Committees or Caretaker Committee appointed by the 3rd and 4th Defendants for the Seventeen Local Government Councils in Enugu State.
  8. AN ORDER OF PERPETUAL INJUNCTION restraining the 9th to 25th Defendants or any other person appointed by the 7th, 8th and 9th Defendants from further occupation of the office of the Chairman of the Seventeen (17) Local Governments after the expiration of their tenure/term of office on 4th January, 2016.
  9. A DECLARATION that the failure, refusal and neglect of the 1st and 2nd Defendants to appoint a date for the 2015 Seventeen Local Government election and to conduct the said election is a breach of Section 11(1)(2) of the Local Government Laws, CAP 109, Revised Law of Enugu State, 2004 and Section 1(1)(a)(b)(2) of the Fifth Schedule thereto and Section 2 of the Local Government Law (amendment No. 5) Law No. 6 Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010.
  10. A DECLARATION that the 1st and 2nd Defendants have no powers to lawfully conduct the 2015 elections into the Local Government Chairmanship Council of the Seventeen Local Government Councils in Enugu State outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109, Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereto.
  11. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd, 4th, 5th, 6th, 7th and 8th Defendant (1st Set of Defendants) whether by themselves, their servants, agents, privies, surrogates, staff, appointees, officers of the Peoples Democratic Party and Members thereof or however called or any person acting through the Defendants and/or on the instructions or directives of the Defendants from appointing or selecting any person as Chairman and Members of the purported Transition Committee or Caretaker Committee to occupy the Office of the Chairman of the Seventeen Committee to occupy the office of the Chairman of the Seventeen (17) Local Government Councils in Enugu State.
  12. AN ORDER of Court directing and compelling the 1st and 2nd Defendants to issue Certificate of Return to the 2nd to 18th claimants being the deemed elected Candidates at the close of period of nomination for the 2015 Local Governments Area in Enugu State.
  13. AN ORDER directing that the 2nd to 18th Claimants tenure/term of office as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State shall be two (2) years commencing from the date of the first sitting of the Council in compliance with Section 4(2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State 2004 (as amended) by Section 2 of the Local Government Law (Amendment No. 5) Law No. 6, 2004, Enugu State of Nigeria Official Gazette No. 1 Supplements to the Revised Laws of Enugu State, 2010.
  14. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, whether by themselves, their servants, agents privies, surrogates, staff, appointees, officers, ad hoc staff or however called or any person acting on their behalf on their instructions or directives from conducting any other 2015 Local Government Council election outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109 Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereof. ”

​After the filing and service of the Originating Summons, there were series of interlocutory applications filed by the parties, including a motion ex-parte for interim injunction and a motion on notice for interlocutory injunction to restrain the 2nd-7th Respondents from appointing the second set of respondents as Caretaker Committee Chairmen in the 17 Local Government Councils (hereinafter referred to as LGCs) in Enugu State. Upon the hearing of the motion ex-parte, the parties were ordered to be put on notice and the motion for interlocutory injunction was adjourned for hearing.

During the pendency of the motion for interlocutory injunction, the 2nd set of respondents (i.e. 8th-24th respondents) were sworn in as Caretaker Committee Chairmen and members for the 17 LGCs. The appellants filed a motion to set aside the appointment.

​The 6th and 7th respondents herein, as 7th and 8th respondents at the trial Court filed a preliminary objection seeking to have their names struck off the suit for failure to disclose a cause of action against them. R.O. Odugu, J. upheld the objection and struck out their names. This led to an appeal filed by the appellants at the lower Court. The appeal was allowed. The ruling striking out the names of the 7th and 8th respondents (now 6th and 7th respondents) was set aside and it was ordered that the suit be remitted to the High Court to be tried de novo by a different Judge of that Court. The 6th and 7th respondents were dissatisfied with the decision and filed an appeal before this Court which was assigned Appeal No. SC.891/2017. The appeal is still pending.

During the period that the suit was awaiting re-assignment by the Hon. Chief Judge, the 1st respondent announced and published a time-table to the effect that it would conduct elections into the 17 LGCs in Enugu State on 4/11/2017. The 6th and 7th Respondents announced dates for the 6th respondent’s primaries in line with the published time-table. It is the appellants’ contention that the steps were taken during the pendency of the application for injunction as well as subsisting judgment of the Court of Appeal in CA/E/558/2016 and the appeal before this Court in SC.891/2017.

The election was held on 4/11/2017. The candidates of the 7th respondent, the PDP i.e. the 6th and 8th-24th respondents were declared winners.

The case was eventually reassigned to F.I.N. Ngwu, J. Upon the reassignment, the two sets of respondents filed their counter-affidavits to the Originating Summons and the appellants filed a further affidavit in support of their Originating Summons. The parties filed written addresses. The written addresses were adopted in open Court and the case adjourned for judgment.

Before the date for the delivery of the judgment, the parties were invited back to address the Court on certain issues it had raised suo motu concerning the jurisdiction of the Court and the competence of the suit. Written addresses were filed and exchanged. The issues raised suo motu were, inter alia: (a) Whether the Originating Summons was competent and the effect of an Originating Summons not properly signed or filed as required by Rule 10 (3) of the Rules of Professional Conduct for Legal Practitioners, 2007; (b) whether, in view of the contentious nature of the dispute, an Originating Summons is the appropriate process for commencing the suit; (c) whether some or all the reliefs sought had become academic as a result of effluxion of time and (d) the right of a National Party to sue in a state where the position of the State Chapter is at variance with the National Party over the subject matter.

​The Court held (a) that the Originating Summons was incompetent, not having been properly signed in compliance with the Rules of Professional Conduct; (b) that Originating Summons is not the appropriate originating process for initiating the suit having regard to the issues in contention therein; (c) that some of the reliefs claimed are no longer viable, having become spent or having lapsed by effluxion of time.

On the substance of the suit, the Court held that even if it were to proceed and find in the appellants’ favour, they could not be placed in the positions they seek, their tenure having already lapsed by effluxion of time. The suit was accordingly dismissed on 24/1/2019.

​The appellants were dissatisfied with the judgment and appealed to the Court below. Briefs of argument were duly filed and exchanged between the parties, except the 6th and 7th respondents who did not file any process. On 10/9/2019, the Court raised suo motu, the issue as to whether the Court still had jurisdiction to hear and determine the appeal relating to the 2015 Enugu State Local Government Election, long after the expiration of the tenure of those elected and invited the parties to address it. By its judgment delivered on 18/9/2020, the Court held as follows:

“A relief could be justifiably described as otiose and academic if the grant thereof does not affect the legal rights of any of the parties to the dispute. Where a successful party to the dispute cannot benefit from the grant of such relief, then it is spent and bereft of any life whatsoever. Such a relief has become academic and is undeserving of valuable judicial attention…

A dispassionate appraisal of the questions sought for determination in the Originating Summons of the appellants as well as the reliefs sought by them leave the inescapable conclusion that they have been rendered otiose and academic. They are accordingly undeserving of further judicial attention. It is my strong view that this Court has no jurisdiction to proceed further with this appeal. In the entire circumstances therefore, this appeal is struck out. Parties shall bear their respective costs.”

​The appellants are dissatisfied with the judgment and filed the instant appeal vide their Notice of Appeal dated 12th October, 2020 containing 8 grounds of appeal. In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument. At the hearing of the Appeal on 10/2/2021, GEORGE OGARA ESQ, adopted and relied on the Appellants’ brief filed on 19/11/2020, their reply to the 1st Respondent’s brief filed on 9/2/2021 and deemed filed on 10/2/2021 and their Reply to 6th and 7th respondents’ brief filed on 9/2/2021 and also deemed filed on 10/2/2021 in urging the Court to allow the appeal.

G. OFODILE OKAFOR, SAN, adopted and relied on the 1st respondent’s brief filed on 4/2/2021 but deemed filed on 10/2/2021 in urging the Court to dismiss the appeal. Chief M.E. Eze, the Hon. Attorney General of Enugu State adopted and relied on the 2nd—5th and 8th—24th respondents’ brief filed on 10/2/2021 and deemed filed on 10/2/2021 in urging the Court to dismiss the appeal.

​C.J. CHIME ESQ adopted and relied on the 6th and 7th Respondents’ brief filed on 9/10/2021 and deemed filed on 10/2/2021. He drew the Court’s attention to the preliminary objection raised and argued therein, and urged the Court to strike out Grounds 3, 4, 5, 6, 7, and 8 of the Notice of Appeal for being incompetent, having not arisen from the judgment appealed against. He further urged the Court to dismiss the appeal.

Preliminary Objection

See also  Isaiah Ojo Asore & Anor. V. Sule Ogundimu Lemomu & Ors (1994) LLJR-SC

The 6th and 7th Respondents argued their preliminary objection at pages 10-11 of their brief at paragraphs 2.1- 2.7. The essence of a preliminary objection is to challenge the competence of the entire appeal. A preliminary objection is filed where it is intended to truncate the appeal in limine on the ground that there is a fundamental defect that would affect the Court’s jurisdiction to entertain it. It forecloses the hearing of the matter to save the Court’s valuable time and to avoid an exercise in futility. The rationale for this procedure was explained by Nnaemeka-Agu, JSC in Mohammed & Anor. Vs Olawunmi & Ors. (1990) 4 SCN J 23, thus:

“By the preliminary objection, he is saying that the suit or motion before the Court ought not to be heard at all because it is incompetent or is bedeviled by some other fundamental vice.”

See also: Nwosu vs P.D.P & Ors. (2018) LPELR-44386 (SC) @ 11 D-G: Yaro vs Arewa Construction Ltd. & Ors. (2007) LPELR-3516 (SC) @ 14 E-F: APC vs INEC (2014) LPELR-24036 (SC) @ 18-19 A-B.

​It has been held severally by this Court that where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice, the reason being that the success of the objection would not terminate the hearing of the appeal. See: KLM Royal Dutch Airline vs Jemilat Aloma (2017) LPELR-42588 (SC) @ 6-7 A-D: Odunukwe vs Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 F-C Ndigwe vs Nwude (1999) 11 NWLR (Pt. 626) 314.

Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper procedure. Where there are valid grounds that can sustain the appeal, the respondent is required to file a motion seeking to strike out the incompetent grounds of appeal. See:Kente vs Ishaku & Ors. (2017) 12 NWLR (Pt. 1578) 94: Bank of Industry Ltd. vs Awojugbagbe Light Ind. Ltd. (2018) LPELR-43812 (SC) @ 7-8 B-F: Adejumo vs Olawaiye (2014) 12 NWLR (Pt. 142) 252 @ 279.

The preliminary objection does not challenge the competence of the entire appeal. It only challenges Grounds 3-8, leaving Grounds 1 and 2. Grounds 1 and 2 are sufficient to sustain the appeal. The preliminary objection is therefore discountenanced.

MAIN APPEAL

The appellants have distilled 3 issues for the determination of the appeal as follows:

  1. Whether the Court below has jurisdiction to hear and determine appeals arising from the Appellants’ complaint of violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, by the Respondents.
  2. Whether the Court below denied the Appellants fair hearing by failing to determine the issues validly raised by the parties at the Court below.
  3. Whether the Court below was right in upholding the conduct of election by the 1st Respondent and the declaration of the 6th and 7th Respondents’ candidate as winners during the pendency of the 6th and 7th Respondents’ appeal No. SC.891/2017: & Chief Ikeje Asogwa & Anor. Vs All Progressives Congress & 39 Ors. between the same parties in this appeal.

The 1st Respondent adopted the issues formulated by the Appellants. The 2nd—5th and 8th—24th Respondents distilled a single issue to wit:

“Whether the Court of Appeal was right to hold that it no longer has jurisdiction to hear and determine the Appellants’ appeal which arose from the 2015 Enugu State Local Government election long after the expiration of the tenure of those elected.”

The 6th & 7th Respondents also submitted a lone issue for determination thus:

“Whether the Court of Appeal was wrong to have struck out Appeal No. CA/E/483/2019: All Progressives Congress (APC) & 17 Ors Vs Enugu State Independent Electoral Commission & 23 Ors on the ground that the Court has no jurisdiction to proceed further with the appeal?”

The sole issue formulated by the 2nd—5th and 8th—24th Respondents and the 6th and 7th Respondents respectively, is the same as the appellants’ issue 1. I must observe here that appellant’s issue 3 which is predicated on ground 6 of the Notice of Appeal did not arise from the judgment appealed against. The issue as to whether the Local Government elections which took place on 4th November 2017, were validly conducted or not, was not one of the issues for determination before the Court and no pronouncement was made in respect thereof. The Court merely observed in passing that elections had already taken place, that the 1st appellant sponsored candidates and participated fully therein and therefore as at 23/6/2020 when the appeal was heard, the situation had moved beyond the Local Government elections of 2015, as there were now democratically elected LG Chairmen in place since 2017. There is nowhere in the judgment that a pronouncement was made upholding the election that was conducted in 2017.

An issue for determination in an appeal must be predicated on a ground (or ground) of appeal, which in turn must be predicated on the ratio decidendi of the decision appealed against. Where a ground of appeal or an issue for determination does not meet this requirement, it is liable to be struck out. See: Fasuyi Vs P.D.P (2018) NWLR (Pt. 1619) 426: Egbe vs Alhaji (1990) 1 NWLR (Pt. 128) 546: Babalola vs The State (1989) 4 NWLR (Pt. 115) 264: Abdullahi Ors. vs The State (2013) 4-5 SC (Pt. IV) 141. The appellant’s issue 3 is therefore incompetent and hereby struck out. The appellants’ issues 1 and 2 will be adopted in the resolution of the appeal, for there cannot be an appeal against what has not been decided.

Issue 1

Whether the Court below had jurisdiction to hear and determine appeals arising from the Appellants’ complaints of violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by the Respondents.

In support of this issue, learned counsel submitted that the questions for determination in the Originating Summons, (set out earlier in this judgment) are constitutional and statutory in nature. He submitted that the appellants are seeking the interpretation and explanation of the legality, nature, extent and validity of the non-conduct of the Enugu State Local Government elections by the 1st Respondent and the powers/rights of the 2nd—5th respondents to appoint the 8th—24th respondents (members of the 6th and 7th Respondents’ political party) as Caretaker Committee Chairmen under the 1999 Constitution, as amended. Learned counsel submitted that in a previous judgment between the parties to this appeal and arising from suit No. E/362/2015, the lower Court in Appeal No. CA/E/558/2016: APC & 17 Ors. vs Enugu Independent Electoral Commission & Ors. recognized the constitutional nature of the questions for determination in that suit which are similar to the questions for determination in the instant suit and the fact that any decision would affect the 2nd—25th respondents therein. He submitted that the holding of the lower Court to the effect that the appeal is academic and would not affect the rights of any of the parties to the dispute, was in error.

Learned Counsel submitted that Section 6(6) (b) of the 1999 Constitution, as amended, confers powers on the Court to hear and determine the legality, extent, nature and validity of the actions of the respondents under Section 7(1) of the said Constitution.

Relying on A.G. Ondo State Vs A.G. Federation and 36 Ors. (2002) FWLR (Pt. III) 1972 @ 2167 B–C, he submitted that the lower Court had the jurisdiction to interpret Section 7(1) of the Constitution, as amended, the said Constitution being the grundnorm from which all other laws are made, rights created and powers conferred. He argued further that the 1999 Constitution, as amended, is the foundation upon which the democratic system of government in Nigeria is founded. He submitted that the lower Court failed to follow its previous decisions in the Registered Trustees of Conference of Secondary School Tutors Vs Hon. Commissioner for Education, Kogi State (2006) ALL FWLR (Pt. 299) 1549 @ 1561 A—C and Hon. Sunday Obi- Akejule & 5 Ors. Vs Delta State Govt. & Anor. (2009) ALL FWLR (Pt. 466) 2009 @ 2021 A to the effect that the right to claim a constitutional right takes precedence over any other claim and that where a law is contrary to any of the provisions of the Constitution, it can be challenged at any time. See also Rabiu Vs Kano State (1980) LPELR—2936 (SC). He submitted hat the appellants’ claims being declaratory, injunctive and accessory claims, are reliefs which the lower Court is empowered to grant. He argued that the power of the Court to grant such reliefs cannot be restricted. He referred to Ewarami vs. A.C.B. Ltd (1978) 4 SC 72 @ 78 Lines 5–10. He submitted that the powers of the Court to determine the rights of the parties on appeal based on a declaratory relief can be exercised even when there is no cause of action. He relied on Ikine & Ors. Vs Edjerode (2002) FWLR (Pt. 92) 1775 @ 1814 F. He submitted that the lower Court also failed to follow or be bound by its previous decision in Bisimillahi Vs Yagba-East L.G. & ORS. (2003) FWLR (Pt. 141) 1923 @ 1966—1967 G—H, where the Court held, inter alia:

“A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried if at the time the action was brought, it raised substantial issues of law.”

He referred to Nobis-Elendu Vs INEC & Ors. (2015) LPELR—25127 (SC), where this Court reiterated the principle that a Court is bound by its previous decisions.

Learned counsel further submitted that having regard to the questions for determination in the suit, which relate to the non-conduct of the Enugu State Local Government elections and the validity of the proposed appointment of Caretaker Committees in the 17 Local Government Councils in the State, it qualifies as a pre-election matter. Relying on the decision of this Court in Odedo vs INEC & Ors. (2008) LPELR-2204 (SC) per Tobi, JSC, he submitted that a pre-election matter cannot be said to be an academic exercise. He also cited: Dahiru & Anor. vs APC & Ors. (2016) LPELR-42082 (SC); Nobis-Elendu vs INEC (Supra): Wambai vs Donatus (2014) LPELR—23303 (SC) and submitted that having filed the suit on 8/12/2015, prior to the expiration of the statutory period for the nomination of candidates for the election, the lower Court had the requisite jurisdiction to hear the appeal.

Learned counsel observed that all the respondents except the 1st respondent raised the issue of jurisdiction at the trial Court. He noted that the trial Court upheld the preliminary objection of the 7th and 8th defendants (now 6th and 7th respondents), which gave rise to Appeal No. CA/E/558/2016 wherein the ruling of the learned trial Judge was set aside and the matter remitted to the Hon. Chief Judge for reassignment to another Judge. The 6th and 7th respondents’ appeal against the judgment is Appeal No. SC.891/2017, pending before this Court. It is learned counsel’s contention that in view of the pending appeal on the issue of jurisdiction, the Court below no longer had the power to raise the same issue again, suo motu, and rehear it all over again. He submitted that the lower Court was estopped from reopening the issue. He referred to: Ogbogu Vs Ndiribe & Ors. (1992) LPELR-2283 (SC) per Karibi-Whyte, JSC; Sharing Cross Educational Service Ltd Vs Umaru Adamu Enterprises Ltd & Ors. ​(2015) LPELR-24661 (CA). He submitted that the parties and subject matter in CA/E/558/2016 are the same as in the instant appeal and the issue of jurisdiction had been settled to finality by the lower Court in CA/E/558/2016. Relying on Oloba Vs Akereja (1988)7 SC (Pt. 1) 1 @ 12 Lines 1—5, per Obaseki, JSC, he submitted that once the issue of jurisdiction is raised, it must be considered in all its ramifications and pronounced upon once and for all and not piecemeal. He argued that the lower Court failed to follow its previous decisions in Njokanma (JP) & Ors. vs Mowete & Ors. (2002) FWLR (Pt. 108) 1536 @ 1552 B-C: Nigeria Agip Oil Co. Ltd vs Nkweke & Anor. (2016) ALL FWLR (Pt. 845) 1 @ 38 G; Kassim vs The State (2017) LPELR-42586 (SC): Ogwe & Anor. vs I.G.P. & Ors. (2015) LPELR-24322 (SC); Rossek vs A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 @ 497—498 H—A.

​In response, Learned Senior Counsel for the 1st respondent conceded that the issue of jurisdiction is fundamental to adjudication. He submitted that Section 240 of the 1999 Constitution, as amended, gives the Court of Appeal jurisdiction to hear and determine appeals from the Federal High Court, the State High Courts, Sharia Court of Appeal and the Customary Court of Appeal. He submitted that the jurisdiction so conferred is not a licence to the Court to determine appeals that are more or less an academic exercise, as the Court does not act in vain. He referred to Ecobank (Nig). Ltd. Vs Honeywell Flour Mills Plc (2019) 2 NWLR (Pt. 1655) 35 @ 95. F—G. On what amounts to an academic exercise, he referred to Dahiru Vs APC (2017) 4 NWLR (Pt. 1555) 218 @ 244 E-F. He submitted that a suit becomes academic when there are no more live issues to be determined. He submitted that the appeal is concerned mainly with the non-conduct of the Enugu State LG elections. He submitted that the said election was later conducted in 2017 and the 1st appellant fully participated therein by sponsoring candidates. He submitted that the 1st appellant’s participation in the election showed that it had accepted the said election and could not be heard to complain thereafter, as it would amount to approbating and reprobating. He referred to Ecobank Nig Plc Vs Honeywell Flour Mills Plc (Supra). He submitted that those elected in the 2017 election had already concluded their tenure. He argued that even if the appellants succeeded on appeal, any pronouncement in their favour would be an exercise in futility, as the fruit of the judgment is spent.

In reaction to the appellants’ contention that the lower Court has jurisdiction to determine appeals arising from declaratory reliefs, he submitted that the declaratory relief must relate to a live issue.

On issue estoppel, learned Senior Counsel submitted that although Appeal Nos. CA/E/558/2016 and CA/E/403/2019 arose from the same suit and between the same parties, the subject matter of the two appeals is not the same. He noted that appeal No. CA/E/558/2018 is an interlocutory appeal in which some of the parties sought to have their names struck out and for the suit to be dismissed against them, whereas the instant appeal is in respect of the final judgment in the substantive matter. He submitted, relying on FRN Vs Borisade (2015) 5 NWLR (Pt. 1415) 155 @ 169 C-F, that the law is trite that a Court is not expected to delve into the substantive matter at the interlocutory stage. He submitted that issue estoppel arises where an issue has been adjudicated upon in an earlier suit by a Court of competent jurisdiction and the same issue comes in question in a subsequent proceeding between the same parties or their privies. He referred to the case of Esuwove Vs Bosere (2017) 1 NWLR (Pt. 1546) 256 @ 304 E-F, where this Court stated the preconditions for the application of the doctrine of issue estoppel, to wit:

  1. The same question must have been decided in both suits.
  2. The judicial decision relied on to create issue estoppel must be final; and
  3. The parties to the judicial decision or their privies must be the same in both proceedings.
See also  Cigari Shehu Vs J. B. Ogedengbe (1960) LLJR-SC

Learned Senior Counsel submitted that although the parties in both appeals are the same, the decision in CA/E/558/2016 is not a final decision, whereas the decision in CA/E/403/2019 is a final decision. As observed earlier, he also contended that the issues are not the same. He argued that all the elements must co-exist for the doctrine to apply. He urged the Court to resolve the issue against the appellants.

On behalf of the 2nd—5th and 8th—24th respondents, learned counsel submitted that the lower Court made specific findings at page 1612 vol. 3 of the record to the effect that the tenure of LG Chairmen is two years pursuant to the extant Local Government law, that the 1st respondent successfully conducted elections into the LGCs of Enugu State in which the 1st appellant participated and sponsored candidates different from the 2nd-18th appellants and that in the circumstances, democratically elected LG Chairmen have been in place since 2017. He observed that none of the grounds of appeal complain about these findings. He submitted that the legal consequence of failure to challenge those findings is that they are accepted as correct, valid and binding and therefore neither party can be heard to complain. He referred toDabup Vs Kolo (1993) 12 SCNJ 1: Chijioke Ugwu Vs The State in Appeal No. SC.196/2015 delivered on 24/1/2020.

He submitted further that the tenure of the 8th to 24th respondents, whose appointment as Transition Committee Chairmen for the Local Government councils that triggered the suit and who were sued in their personal capacities, had long expired and that the tenure of the democratically elected council, inaugurated in 2017, had equally expired in 2019, with another set of democratically elected Chairmen and Councilors elected and inaugurated in 2019. He noted that the 1st appellant participated actively in all the processes and sponsored candidates different from the 8th—24th respondents. He submitted that the chairmen and councilors who succeeded the 8th—24th respondents were never made parties to the suit at the lower Courts or this appeal. He submitted that any order made by the Court in the circumstances would be of no utilitarian value to the appellants since it would affect persons who are not parties before the Court. He submitted, concurring with the submissions made on behalf of the 1st respondent, that the Court does not act in vain.

Examining the 14 reliefs sought by the appellants, he submitted that reliefs 3, 5, 6, 7, 8, 9, 10, 11, 11, 12, 13 and 14 are no longer viable, having become spent and overtaken by events. On the point that there is no live issue to be determined, he referred to A.G. Federation vs A.N.P.P. (2004) LRCN 2671. He submitted that every Court has a duty to decline further jurisdiction when it notices that the matter before it has become academic. He relied on the persuasive authority in Ugba & Anor. vs Suswam & Ors. (2012) LPELR-8635 (CA) per Onyemenam, JCA.

Referring to Section 4 (2) of the Local Government Laws Cap. 109, Revised Laws of Enugu State of Nigeria, 2004, he submitted that the tenure of office of chairmen and councilors is 2 years and that by their own averment in paragraph 22 of the affidavit in support of their Originating Summons, the appellants averred that their tenure was due to expire on 4th January 2016. He reiterated that not only had the appellants’ tenure lapsed by effluxion of time, several elections had been conducted thereafter in which the 1st appellant fully participated. He referred to A.C. Vs INEC (2007) LPELR—8988 (CA). He submitted that the remaining reliefs 1, 2 and 4 are not anchored on any live dispute or controversy between the parties and are therefore hypothetical and academic. He submitted that a determination of those issues would not confer any right or benefit on the appellants. He submitted that in such circumstances, the Court has a duty to terminate the appeal. He referred to: Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 215: PPA vs INEC (2012) 13 NWLR (Pt. 1317) 413; Plateau State vs A.G. Federation (2006) 3 NWLR (Pt. 967) 346.

In response to the appellants’ contention that being a pre-election matter, it is a live issue and not merely academic, he submitted that the case does not fall within the definition of pre-election matter as defined under Section 285 (14) of the 1999 Constitution, as amended. He submitted that the appellants are neither complaining about the selection or nomination of candidates nor of preparation for any election but rather the failure of the respondents to conduct Local Government elections and the appointment of Caretaker Chairmen in place of democratically elected Local Government Councilors.

He also argued that issue estoppel is not applicable in this matter, as the issues in CA/E/558/2016 and CA/E/403/2019 are not the same.

The submissions on behalf of the 6th and 7th respondents are substantially in line with those made on behalf of the 1st respondent and the 2nd—5th and 8th—24th respondents. I shall only refer to those arguments that touch on an issue not already addressed. For instance, learned counsel, after reviewing the reliefs sought, observed that it is antithetical and contradictory for the appellants, on one hand, to contend that the respondents have failed to conduct LG elections, while on the other hand, they are seeking an order of this Court that a certificate of return be issued in their favour in respect of a tenure which has since lapsed. He submitted, in reaction to the contention that a pre-election matter remains a live issue, that a pre-election matter cannot remain alive after the tenure of the office in issue has elapsed. He contended that the appeal had become spent even before the Notice of Appeal was brought before the lower Court. He maintained that there was nothing left to be decided between the parties.

I have read the Appellants’ reply brief to the 1st respondent’s and 6th and 7th respondents’ briefs. As far as the issue under consideration is concerned, the submissions are a re-argument of the issues already canvassed in the appellant’s main brief. I shall not dissipate energy on them.

Resolution of Issue 1

Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See:Shitta-Bey Vs A.G. Federation & Anor. (1998) 10 NWLR (Pt. 570) 392: Aribisala Anor. vs Ogunyemi & Ors. (2005) 6 NWLR (Pt 921) 212: Utih VS Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166: Umanah vs Attah (2006) 17 NWLR (Pt. 1009) 503.

Where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings amounts to an exercise in futility. It is null and void. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 387 @ 594, Utih vs Onoyivwe (supra): IDISI vs Ecodril Nig. Ltd. & Ors (2016) ALL FWLR (Pt. 850) 1016: Gwede vs INEC & Ors. (2014) 18 NWLR (Pt. 1438) 56.

Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides:

“6(6) The judicial powers vested in accordance with the foregoing provisions of this Section-

(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

The jurisdiction of the Court of Appeal is conferred by Section 240 of the 1999 Constitution, as amended, which provides:

“240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory Abuja, High Court of State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the State, Customary Court of Appeal of the FCT Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.”

The law is quite settled that being a creation of the Constitution or a Statute, a Court of law can only exercise such jurisdiction as is conferred on it by the law that created it. See National Bank & Anor. Vs Shoyoye (1977) 5 SC (Reprint) 110: Mobil Producing Nig. Ltd. vs L.A.S.E.P.A. & Ors (2002) 14 SCM 167 @ 179: Nduul vs Wayo (2018) LPELR-4515 (SC) @ 29-30 E-D.

There is no doubt that it is the duty of a Court of law to interpret and declare the law in accordance with the intention of the lawmaker. See: Eperokun Vs University of Lagos (1986) LPELR-1150 (SC) @ 38A: Dahiru vs The State (2018) LPELR-44497 (SC) @ 10 A-D: Marwa VS Nyako (2012) LPELR-7837 (SC) @ 171 A-C.

The purpose of this forary into the jurisdiction and function of a Court of law is to determine whether the lower Court was correct when it held that it no longer had jurisdiction to determine the appellants’ appeal.

In Madukolu Vs Nkemdilim (supra) it was held that a Court is competent when:

  1. It is properly constituted as regards the members of the Bench and no member is disqualified for one reason or another; and
  2. The subject matter of the case is within its jurisdiction and
  3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

​The issue raised suo motu by the Court below was whether it still had jurisdiction to entertain the appeal, which arose from the 2015 Local Government elections in Enugu State long after the tenure of those elected had lapsed. It is important to note that one of the issues for determination in the appeal was whether the trial Court was right to have dismissed the suit after making declarations in the appellants’ favour.

In my view, the issues before the lower Court were two-fold. Firstly, whether it had jurisdiction to hear the appeal and secondly, whether the reliefs being sought by the appellants were still viable. It is the appellants’ contention in this appeal that the Court below erred in raising the issue of jurisdiction a second time, as it had been raised and determined by the trial Court and an appeal still pending before this Court on the issue.

​It is pertinent to observe at this stage that the appeal NO. CA/E/558/2016, which has given rise to Appeal No. SC.891/2017 before this Court, was an interlocutory appeal. At the trial Court, the 7th & 8th respondents (now 6th & 7th respondents) had urged the Court to strike out their names on the ground, inter alia, that the Originating Summons disclosed no reasonable cause of action against them. The Court agreed with them and struck out their names. On appeal to the Court of Appeal, their names were ordered to be restored to the suit, on the ground that any decision reached in the matter would affect their rights/interests. It is against this decision that the 6th & 7th respondents have filed their appeal in SC.981/2017. The issue in that appeal is as to whether the 6th and 7th respondents are proper parties. The instant appeal arose from an appeal against the final judgment in the substantive suit. It would not be correct to contend, as the appellants have done, that the lower Court has reopened an issue that is already pending before this Court.

Returning to the appeal before the lower Court, a careful perusal of the questions for determination in the Originating Summons, shows that the appellants were seeking, inter alia, the interpretation and application of Sections 12(1) and (2) of the Local Government Law of Enugu State vis-a-vis Section 7(1) and (4) of the 1999 Constitution, as amended and whether, in the circumstances, the said provisions which allow the defendants to appoint Caretaker or Transition Committees for a defined or undefined period of time in respect of the 17 LG Councils in the State, was not unconstitutional, null and void. They were also seeking a determination as to whether the failure of the 1st and 2nd respondents to appoint a date for the conduct of the Local Government election was not a violation of Section 11 (1) and (2) of the Local Government Law. The trial Court dismissed the entire suit on the ground that the reliefs sought were no longer viable. However, not being the final Court and in the event of being overruled on appeal, the Court rendered its opinion on the substantive case and held that the appellants were entitled to the declarations sought on the validity of Section 12(1) and (2) of the LG Law. The appellants contended at the Court below that the trial Court erred in doing so.

By their pleading in the affidavit in support of the Originating Summons, the appellants they had averred that:

(a) The 2nd-18th appellants were candidates nominated and sponsored by the 1st appellant for the 2015 Enugu State LG Council election, suing for themselves and as representatives of the 260 Councillorship Candidates.

(b) That the 8th—24th respondents were members of the 7th respondent (PDP) and were the democratically elected LG Council Chairmen whose 2 years tenure commenced on 5/1/2014.

(c) That in accordance with the LG Law, the 1st and 2nd respondents were mandatorily required to appoint a date for the 2015 election not later than 90 days but not earlier than 60 days to the expiration of the current tenure of the 2nd—18th respondents.

(d) That they failed, refused and/or neglected to fix a date.

(e) That the 1st set of respondents (1st—7th respondents) decided among themselves not to undertake, conduct or participate in any democratic election to enable the 4th defendant (3rd respondent) appoint members of the 7th respondent as Caretaker Committee or Transition Committee for an arbitrary period.

(f) That some of the 8th—24th respondents had been promised appointments as LG Chairmen.

(g) That the appointment of a Caretaker Committee is inconsistent with the intentions of a Constitution to ensure a democratically elected Local Government Council in Enugu State.

(h) That the law empowering the 3rd respondent to unilaterally appoint his party members alone as Caretaker Committee or Transition Committee members is undemocratic.

(i) That by their arrangements, the 3rd, 6th and 7th respondents would have unlawfully extended the tenure of the LG Council to more than the two years provided by law, which they have no power to do.

As observed earlier, the interpretation and application of the provisions of the Constitution, or of a statute, as it affects the civil rights, interests or obligations of any person in Nigeria, is the function of the Court. By their pleadings, the appellants had alleged that Section 12(1) and (2) of the Local Government Law not only infringe on their rights, as sponsored and nominated members of their political party, to be democratically elected into the positions of chairmen and councilors of the Enugu State LGCs, it was also unconstitutional for being in conflict with Section 7(1) and (4) of the 1999 Constitution, as amended.

See also  Samuel Chidozie Vs. Commissioner Of Police (2018) LLJR-SC

Notwithstanding the fact that the Local Government Election had taken place in 2017 and that the tenure of those elected had expired, the constitutionality of Section 12(1) and (2) of the Local Government Law remained a live issue. It was held in A.G. Kaduna State Vs Hassan (1985) LPELR—617(SC) @ 26 B—D, that the Court may make binding declarations of right whether or not any consequential reliefs is or could be claimed. See also: Dantata vs Mohammed (2000) LPELR—925 (SC) @ 10—1 F—A: Ikine & Ors Vs Edjerode & Ors. (2001) LPELR-1479 (SC) @ 56 C- E; A.G. Ondo State vs A.G. Federation & Ors. (2002) FWLR (Pt. 111) 1972 @ 2167 B-C: Nafiu Rabiu vs Kano State (1980) LPELR—2936 (SC).

It has been held by this Court that a declaratory judgment is complete in itself since the relief is the declaration. See: Akunnia Vs A.G. Anambra State (1977) 5 SC 161 @ 177; Okoya vs Santilli (1990) 2 NWLR (Pt. 131) 172.

What is required for the Court to exercise its discretion to grant or refuse a declaratory relief is that the applicants or claimants must establish their legal right to the subject matter of the claim. The appellants had shown the interest they sought to protect See: Ayida Vs Town Planning Authority & Anor. (2013) 10 NWLR (Pt. 1362) 226; Chukwumah vs Shell Petroleum (1993) 4 NWLR (Pt. 259) 512; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423.

This brings me to the question whether the entire appeal was academic, as held by the Court below. In Ardo vs INEC (2017) LPELR — 41919 (SC), this Court per Augie, JSC gave an in-depth analysis of what an academic or hypothetical suit is, to wit:

“What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question. See Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma Eneh further explained that-

‘An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when the determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt, that has lost its seasoning. And like salt in that state, it has no practical value to anybody and so also a suit in that state has none.”

In simple terms an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party.”

In the instant case, it cannot be said that the declaratory reliefs seeking a pronouncement on the validity or constitutionality of some provisions of the Enugu State Local Government Law is academic or that a resolution would amount to bare legal postulations. The Constitution is the grundnorm from which all other laws derive their legitimacy. Section 1(1) and (3) of the 1999 Constitution, as amended, provides:

1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Re public of Nigeria.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail; and that other law, shall to the extent of the inconsistency, be void.”

Thus, the Court below had the requisite jurisdiction to entertain the appeal and determine whether the appellants were entitled to be heard in respect of the live issues in the appeal i.e. Reliefs 1, 2 and 4 of the Originating Summons.

​I am, however, in agreement with the respondents that some of the reliefs sought had become spent or no longer viable. The basis for instituting the action was, inter alia, to compel the 1st and 2nd respondents to fix a date for the conduct of the 2015 Local Government elections, for which they had been nominated and sponsored by their political party and to seek a pronouncement as to the validity of Section 12(1) & (2) of the Local Government Law, which empowered the 3rd respondent to set up caretaker/transition committees with an arbitrary tenure.

It is not in dispute between the parties that the Local Government elections were conducted in 2017. That the tenure of those elected had expired and a fresh election conducted in 2019. It is also not in dispute that the tenure of the 8th—24th respondents as Chairmen of the Local Government Areas had long expired upon the inauguration of democratically elected Local Government Chairmen and Councilors in 2017 and 2019. It is also not in dispute that not only did the 1st appellant participate in the said elections, it fielded candidates other than the 2nd—18th appellants herein. The present occupants of those offices were not parties at the Court below nor before this Court.

The Court below held, inter alia:

“A perusal of the entire originating processes discloses that the dispute arose from the 2015 Local Government Elections in Enugu State. It is undisputable between the parties that the tenure of Local Government Chairmen is two years pursuant to the extant Local Government law, that candidates to Local Government elections must be sponsored by registered political parties and that on 4th November 2017, the 1st respondent successfully, conducted an election into the Local Government Councils of Enugu State in which the 1st Appellant took part and sponsored candidates different from the 2nd to 18th Appellants as contained in the deposition of the 1st respondent and attached exhibits on pages 703 to 708 of the record of appeal. This development implies that the situation in Enugu State as regards Local Government chairmen has moved beyond the Local Government Elections of 2015 and that instead of Caretaker Committees complained against, democratically elected Local Government Chairmen have been put in place since 2017. ”

​I agree entirely with the lower Court in this regard. Consequently, I agree that reliefs 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 have become spent and any pronouncement thereon would be of no value.

This issue is therefore resolved partly in the appellants’ favour only to the extent that the lower Court ought to have heard and determined the questions relating to the constitutionality of Section 12(1) and (2) of the Local Government Law vis-a-vis Section 7(1) and (4) of the 1999 Constitution, as amended. As it were, the Court threw away the baby with the bath water.

I am of the considered view that this is a proper circumstance for the invocation of Section 22 of the Supreme Court Act, which empowers the Court, to exercise full jurisdiction over the proceedings in the same manner as the lower Court would have done. This would best serve the interest of justice in this case by eliminating further delay that would arise if the Court were to remit the case to the lower Court for rehearing. All the materials necessary to adjudicate in the matter are before the Court. See:Mato Vs Hember & Ors (2017) LPELR—42765 (SC) @ 31-33 B: Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 427 @ 691—692: University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt. 1) 156.

​For ease of reference, the following questions for determination are live issues:

  1. Whether upon a proper interpretation of the provisions of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 3(1) and Section 4(3) of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004; the existence of a democratically elected Government System in the Seventeen Local Government in Enugu State is guaranteed.
  2. Whether the provisions of Section 12(1)(2) of the Local Government Law CAP 109, Revised Law of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provision Law, CAP 110, Revised Law of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee or Transition Committee or however called for a defined or undefined period of time to the position of Chairman of each of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional null and void.
  3. Whether by the provisions of the Constitution of Nigeria, 1999, the 1st set of defendants have powers to appoint or select, a transition committee or Caretaker Committee to the position of the Chairmen of each of the Seventeen (17) Local Government Councils in Enugu State without conducting a Local Government election.

Similar questions arose and were determined by this Court in: Governor of Ekiti State Vs Olubunmo (2017) 13 NWLR (Pt.1551) 1 @ 30-31 F-H, 33 C-D. The law in contention in that case was the Local Government Administration Law, 1999 Cap L11, Laws of Ekiti State, as amended by Section 23B (i) and (ii) of the Local Government Administration (Amendment) Law, 2001 of Ekiti State, which empowered the Governor of Ekiti State to dissolve democratically elected Local Government councils and replace them with unelected caretaker committees appointed solely by the Governor.

​It was contended, just as in the instant case, that the said provisions were in conflict with Section 7(1) of the 1999 Constitution, as amended and therefore null and void. With reference to Section 7(1) of the 1999 Constitution, as amended, ​ this Court, per Nweze, JSC, (supra) held:

“Now, 7(1) (supra) provides thus:

The system of Local government by democratically elected Local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law, which provides for the establishment, structure, composition, finance and functions of such council. (Emphasis by His Lordship) …

Having thus guaranteed the system of Local government by democratically-elected Government councils, the Constitution confers a toga of sacra-sanctity on the elections of such officials whose electoral mandates derive from the will of the people freely exercised through the democratic process. Put differently, the intention of the Constitution is to vouchsafe the inviolability of the sacred mandate, which the electorate at that level, democratically donated to them. Eze & Ors. vs Governor, Abia State & Ors. (2014) 14 NWLR (Pt.1426) 192.”

​His Lordship stated further at 34-35 H-A (supra):

‘By employing the auxiliary verb “shall”) the draftsperson of Section 7(1) (supra), surely intended to impose (and actually imposed) an obligation on the States to ensure the continued existence of Local Government councils which are democratically elected.”

My Lords, the erudite reasoning above is a complete answer to the first question posed by the appellants. It has been settled beyond any equivocation that the continued existence of democratically elected local government councils is sacrosanct, non-negotiable and cannot be tempered with by any authority whatsoever.

It follows therefore, that any law made by the Enugu State House Assembly, which attempts to impose non-democratically elected persons on the citizens of the State is the antithesis of the existence democratically elected local government councils constitutionally guaranteed. In other words, the provisions of Section 12(1) and (2) of the Local Government Law Cap 109 Revised Laws of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law Cap 110 Revised Laws of Enugu State, 2004, as amended by Section 2 of the Local Government Area (Amendment No.5) Law of Enugu State, 2010 ​published in Enugu State of Nigeria Official Gazette No.3 vol.19, 2010, which allows the 3rd respondent to appoint Caretaker or Transition Committees out of which chairmen shall be appointed, for an arbitrary period of time, is in violent conflict with Section 7(1) of the 1999 Constitution, as amended and is therefore null and void.

By Section 4(1) and (2) and Section 18(3) of the Local Government Law, Cap 109 of 2004, as amended by Section 2 of the Local Government Area (Amendment No.5) Laws of Enugu State, 2010, the tenure of office of a Local Government Council Chairman is two years commencing from the date of the first sitting of the council. Nigeria is a Country governed by the rule of law. No tenure can be extended beyond the period stipulated at the whims and caprices of the Governor, without an amendment to the existing law.

​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.

Having resolved questions 1, 2 and 3 of the Originating Summons in the appellants’ favour, they are entitled to the declarations sought in reliefs 1, 2 and 4 thereof. This issue is resolved partly in the appellants’ favour.

The resolution of issue 1 to my mind, is sufficient to dispose of this appeal. No useful purpose would be served by delving into issue 2.

In conclusion, the appeal succeeds in part. The part of the judgment of the lower Court wherein it held that the reliefs touching and concerning the 8th-24th respondents and the 2015 Local Government Election in Enugu State are spent and have become academic, is upheld.

The part of the judgment declining jurisdiction to hear the appeal as regards the issues touching and concerning the validity of Section 12(1) and (2) of the Local Government Law Cap 109 Revised Laws of Enugu State 2004, as amended vis-a-vis Section 7(1) of the 1999 Constitution, as amended, is hereby set aside. Consequently, I make the following declarations in the appellants’ favour.

  1. It is hereby DECLARED that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), ​Section 3(1) and 4(3) and 59 of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (Seventeen) Local Government Councils in Enugu State by democratically elected Local Government Council is guaranteed.
  2. It is also DECLARED that the provisions of Section 12(1) (2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law, CAP 110, Revised Laws of Enugu State, 2004 which allows the Defendants to appoint a Caretaker Committee, Transition Committee or however called for an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils’ in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void.
  3. It is further DECLARED that by virtue of Section 4(1) (2) and Section 18(3) of the Local Government Law, CAP. 109, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amendment No. 5) Law of Enugu State, 2010 ​ published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010, the tenure of office of a Local Government Council Chairman is two (2) years commencing from the date of first sitting the Council

The parties shall bear their respective costs in the appeal.

Appeal allowed in part.


SC.796/2020

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