The Attorney-general of Benue State & Ors V. Hon. Musa Umar & Ors (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

By an election conducted by the Benue State Independent Electoral Commission on the 27th day of March, 2004, the respondents herein were elected as Councillors representing various wards in their respective Local Government Councils of Benue State. They were inaugurated on the 13th and 14th days of April, 2004. Their respective councils were dissolved by the Governor of Benue State (now the 2nd appellant) who swore in caretaker Committees for all the 23 Local Government Legislative Councils of the State.

The respondents took out an originating summons challenging the constitutionality and legality of the action of the 2nd appellant in bringing to an abrupt end their tenure before the expiration of the three years tenure provided by section 13(2) and section 42(1) of the Local Government (Establishment) Law, 2000.

The 1st, 2nd and 3rd appellants herein were the 1st, 2nd and 3rd defendants before the High Court of Benue State (hereinafter referred to as the lower court). They, by the leave of the lower court, filed a joint memorandum of appearance out of time. They also filed a 7-paragraph counter-affidavit in opposition to the originating summons. The respondents filed further and, later, a 2nd and 3rd further affidavits in support of the originating summons. 1st, 2nd and 3rd appellants also filed further counter-affidavit.

By a notice of motion No. MHC/429M/06, the 4th to 26th appellants who were the Chairmen of the caretaker committees of the 23 Local Government Councils appointed by the 2nd appellant prayed the lower court to grant them leave to be joined as co-defendants in the suit. Their prayer was granted on the 13th day of July, 2006. The 67th to 136th respondents were brought into the suit by the leave of the lower court and, thereafter, the respondents were granted leave to amend the originating summons consequent upon a formal application to that effect via motion No. MHV/477M/06. The amended originating summons was filed on the 7th day of August, 2006. The 4th to 26th appellants on the 13th day of July, 2006 filed a notice of preliminary objection praying thus:

“… the plaintiff’s suit No. OHC/26/06 be struck out/dismissed or alternatively that pleadings be ordered and evidence be taken.”

The 4th to 26th appellants also filed counter-affidavit in opposition to the originating summons.

The three sets of parties, the respondent; the 1st to 3rd appellants; and the 4th to 26th appellants filed their respective briefs of argument both in respect of the originating summons and the preliminary objection, which they adopted on the 27th day of September, 2006 without proffering any oral arguments.

The question posed in the amended originating summons for resolution by the lower court reads thus:-

“Whether or not on a calm view and dispassionate interpretation and construction of the provisions of the 1999 Constitution particularly section 7(1) thereof, and Ss. 13(2) and 42(1) of the Local Government Law No. 3 of 2000 as amended by Law No.3 of 2004, the decision of the defendants to dissolve the Local Government Legislative Councils before the tenure provided by Ss. 13(2) and 42(1) of the said Law NO.3 of 2000 as amended is democratic, legal, and in line with S. 7(1) of the 1999 Constitution.”

The respondents then claimed the following reliefs –

(i) A declaration that by virtue of the provisions of Ss. 13(2) and 42(1) of the Local Government Law No.3 of 2000 as amended by Law NO.3 of 2004, the plaintiffs have three years tenure of office as elected Councillors.

(ii) A declaration that the decision of the defendants to dissolve or interfere with the tenure of office of the plaintiffs is contrary to Ss. 13(2) and 42(1) of Law No. 3 of 2000 as amended by Law No.3 of 2004, and therefore undemocratic, illegal, and a gross subversion and breach of S. 7(1) of the 1999 Constitution and Ss.

13(2) and 42(1) of Law No.3 of 2000 as amended.