Etim a. Akpan & Ors. V. Hon. Peter John Umah & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

By an originating summons filed in suit No. HT/4212000 at Ikot Ekpene High Court of Akwa Ibom State, on 28th of July, 2000, the plaintiff now 1st respondent sought against all the defendants to wit, the 2nd and 3rd respondents and the appellants herein for the determination of the following questions:

“1. Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, section 1 of Decree No. 63 of 1999, section 7, 7-19 of Decree No. 36 of 1998, the 1st defendant (2nd respondent) by himself or through the 2nd defendant (3rd respondent) or anyone whoever is competent to dissolve and/or order the dissolution of Ini Local Government Council in which the plaintiff is a Vice Chairman and member and elected on 5/12/98 by virtue of the Press Release of 12/7/2000.

2. Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, section 10f Decree No. 63 of 1999, section 7, 7-19 of Decree No. 36 of 1998, the 1st defendant by himself or through the 2nd defendant or anyone whoever is competent to set up a Caretaker Committee made up of the 3rd – 7th defendants to replace the elected Ini Local Government Council and member by virtue of the Press Release of 12/7/2000.”

Consequent upon the above questions the plaintiff/1st respondent claimed the following reliefs:-

“(a) A declaration that:

(i) The 1st defendant by himself or through the 2nd defendant or anyone whoever is incompetent to dissolve and/or order the dissolution of lni Local Government Council in which the plaintiff is the Vice Chairman and member and elected on 5/12/98.

(ii) The 1st defendant by himself or through the 2nd defendant or anyone whoever is incompetent to set up a Caretaker Committee made up of the 3rd – 7th defendants (appellants) to replace the elected Ini Local Government Council in which the plaintiff is a Vice Chairman and member.

(b) An injunction restraining the 1st and 2nd defendants by themselves, their agents, staff, officers or whoever from interfering, in any manner whatsoever, with Ini Local Government Council elected on 5/12/98 and constituted on 3/6/99, especially by dissolving or purporting to dissolve same or giving effect to any purported dissolution of Ini Local Government Councilor preventing the plaintiff from functioning in office as the elected Vice Chairman of Ini Local Government Council.

(c) An injunction restraining the 3rd – 7th defendants (appellants) from parading themselves as members of the Caretaker Committee of Ini Local Government Council set up by the 1st -2nd defendants/respondents or in any manner whatsoever performing the statutory functions as the elected Vice Chairman of Ini Local Government Council.”

For the hearing of the originating summons, the parties filed their affidavits and counter affidavits. The learned trial Judge Ntem Isua, J. after hearing arguments, delivered a well considered judgment on the 24th of August, 2000. At page 221 of the record of appeal, the learned trial Judge in his judgment stated thus:

“In my humble opinion, dissolution of the council other than by expiration of its elected tenure, can by no stretch of the imagination qualify as an act designed to ensure the existence of a democratically elected local government council. Indeed, dissolution is conspicuously missing from the powers set out in section 7(1) of the Constitution. Dissolution of a Local Government Council by executive fiat is reminiscent of a dictatorial rule. It is decidedly against both the spirit and the letter of the Constitution of the Federal Republic of Nigeria, 1999. A fortiori the setting up of a Caretaker Committee to replace a democratically elected council is clearly unconstitutional, illegal and utra vires the powers of the 1st defendant.”

In the concluding portion of the judgment at page 224 of the record of appeal, the learned trial Judge had this to say:

“In conclusion, I answer the two questions submitted for the determination of the court in the negative, that is to say that I hold that neither the 1st defendant nor anyone else is competent to dissolve and or order the dissolution of Ini Local Government Council which was democratically elected on 5/12/98 and set any Caretaker Committee in its place.”

Accordingly, the learned trial Judge granted all the reliefs sought in the originating summons.