Attorney-general Of Delta State V. Pa Nene Asin & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Headquarters of the Warri South-West Local Government of Delta State was at Ogidigben, until the House of Assembly passed the “Establishment, Structure, Composition, Finance, and Functions of Local Government Councils in Delta State Law, and therein the Headquarters of the LGA was relocated to Ogbe-Ijoh. The 1st – 5th Respondents felt it was their duty to do something about it, and they filed an action by a writ of summons dated 25th October 1999 at the Asaba High Court of Delta State. However, with the leave of Court, the writ of summons was subsequently converted to an Originating Summons, which they filed on the 20th of March 2000, for the determination of the following questions –

(a) Whether under the provisions of the 1999 Constitution, Local Government (Basic Constitutional and Transitional Provisions) Decree No. 7 of 1997, Local Government (Basic Constitutional and Transitional provisions) Decree No. 36 of 1998 and other relevant laws in that behalf, the Delta State Government is competent in law to enact a law re-locating the Headquarters of Warri South West Local Government Council (LGC) from Ogidigben to Ogbe – Ijoh.

(b) If the answer to question 1 is in the negative, is the Delta State Local Government Law No. 3 1999 enacted by the Delta State House of Assembly purportedly creating/relocating the Headquarters of Warri South West LGC from Igidigben to Ogbe-Ijoh valid?

(c) Whether under the provisions of Sections 7 and 8 or any other provision of the Constitution and the provisions of … Decree No. 7 of 1997, … Decree No. 36 of 1998 (now Acts of the National Assembly) the House of Assembly can validly enact a law amending and or relocating the Headquarters … from Ogidigben to Ogbe-Ijoh.

(d) Whether under the provisions of Sections 7 and 8 or any other provision of the Constitution and the provisions of … Decree No. 7 of 1997, – Decree No. 36 of 1998, the Delta State House of Assembly can validly enact a law amending and or relocating the Headquarters of Warri South LGC from Ogidigben to Ogbe-Ijoh without first creating new or fresh Local Government Councils in Delta State.

(e) If the answers to 3 and 4 above are in the negative, is the Delta State- Law No. 3 published in the Legal Notice No. 42 of 1999 amending and or relocating the Headquarters of Warri South Local Government Council from Ogidigben to Ogbe – Ijoh valid and constitutional.

(f) Whether the House of Assembly can competently under the 1999 Constitution enact a law relocating LGC Headquarters.

They also claimed the following five reliefs at the lower Court-

1. A Declaration that the Delta State … Law No. 3 of 1999 purportedly relocating or amending the Headquarters of Warri South West Local Government council from Ogidigben to Ogbe – Ijoh is illegal, unconstitutional, null and void and of no effect whatsoever.
2. A Declaration that by virtue of the provisions of the 1999 Constitution, – Decree No. 7 of 1997… Decree No. 36 of 1998 the Headquarters of Warri South West Local Government Council is at Ogidigben.
3. A Declaration that the Delta State Government and or the Delta State House of Assembly cannot by means of legislation subsidiary or otherwise abrogate, amend and or derogate from the provisions of Constitution of the Federal Republic of Nigeria, 1999, Decree Nos. 7 of 1997 and 36 of 1998 establishing the Headquarters of Warri South West Local Government Council from Ogidigben to Ogbe – Ijoh.
4. An Order of Perpetual Injunction restraining the Defendants from according recognition to Ogbe-Ijoh as the Headquarters of Warri South West LGC or giving effect whatsoever to … Law No. 3 of 1999 … as it relates to Warri South West Local Government Council Headquaters.
5. An Order of Perpetual Injunction restraining the Defendants especially the 2nd and 3rd Defendants from relocating or moving from Ogidigben to Ogbe-Ijoh… Such further or other orders as this Honourable Court may deem fit to make in the circumstances”

On the 1st of March 2002, the Appellant filed an Application at the lower Court presided over by Akporidoh, J., praying for –

“An order striking out this action on ground of lack of jurisdiction and/or lack of locus standi on the part of the Plaintiffs …”

The schedule to the motion stated the Grounds, as follows –

1. A Local Government Council is a government with corporate entity.
2. The Local Government Law No. 3 of 1999 of Delta State is a valid Law made by a competent Legislative Authority of the State.
3. No individual or group of individual is vested by the law with any exclusive personal or communal rights that are cognizable and enforceable either at law or in equity in respect of anything done or purported to have been to a Local Government Council.
4. The plaintiffs jointly and/or severally have no locus standi…

The Application fixed for the 9th of April 2002 could not be heard, because the 6th Respondent filed a motion that day praying for –

“An order referring the proceeding of this suit involving substantial question of law and interpretation of the Constitution set out in the schedule below to the Couth of Appeal”.