19th February 2025, NewsOrient, Opinion, Column, News,
Law And Society
By Rotimi Ogunleye

The ongoing face-off between the Edo State Government and the State’s 18 Local Government Councils has brought to the fore again the issue of autonomy and the relationship between the three tiers of government comprising the Federal, State and Local Governments.

That was the issue before the Supreme Court in Attorney General of the Federation v. Attorney General of Abia State and 35 ors. (2024) 7 S.C. (Part 1) page 1 of which judgement was delivered on the 11th day of July 2024 issue.

The Attorney General of the Federation hereinafter called the Plaintiff initiated the suit by Originating Summons in Suit No. SC/CV/343/2024 raising 15 questions based on 27 grounds. There are 19 prayers or reliefs of which reliefs 1 to 15 are declaratory reliefs, relief 16 is for an order of injunction against the Defendants while reliefs 17 and 18 are mandatory orders. The 19th relief is the omnibus relief for any other order(s) as the court may deem fit to make in the circumstance.

A total of 14 reliefs out of the 18 main reliefs were granted comprising 11 declaratory reliefs and three orders including an injunction restraining the Defendants, privies, agents and officials from further collecting, receiving, spending or tampering with Local Government Councils funds from the Federation Account (relief 12).

While the Supreme Court held, as claimed, that any of the 36 States and officials that dissolved or causes to dissolve democratically elected Local Government Council had committed gross misconduct, it did not grant the Plaintiff’s prayer No.10 that the act of dissolution of the councils be declared a criminal offence bordering on contempt of court and infringement of penal laws for which the affected officials would be liable during or at the end of their tenure.

By relief number 8 which was granted, any State which does not comply with section 7 regarding having democratically elected Local Government Councils would not be entitled to the revenue allocation from the Federation Account until it reverses to status quo ante bellum.

The word “autonomy” does not appear anywhere in the Originating Summons before the court. But it appears in the judgement as “autonomy” Attorney General of the Federation v. Attorney General of Abia State and 35 ors. (2024) supra at pages 39 and 100 and “financial autonomy” at page 168 among others. Black’s Law Dictionary (Eighth Edition) on page 145 defines “autonomy: as “the right of self-government” and “self-governing state.” Does section 7 guarantee such status to the Local Government Councils?

Section 7 of the Constitution says that:

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 councils. (emphasis supplied)

It is a fact that Local Government Councils’ internally generated revenue provided for in the Fourth Schedule of the 1999 Constitution has been mostly appropriated by the States.

On the basis of the constitutional provision in section 7, all the seven justices unanimously decided that it is unconstitutional for a State Governor to dissolve democratically elected councils and appoint caretakers, administrators or any other unelected body and that it is an abuse of powers to do that.

This issue had been settled by the apex court in previous cases like Ajuwon v. Governor of Oyo State (2021) 4-5 SC part 1 and, Governor of Ekiti State v. Olubunmo (2016) 12 SC part II page 1 and there is also section 162(5)(6)(7)(8) and Friday v. Governor of Ondo State (2022) 16 N.W.L.R. part 1857 page 585 at page 648 where the court held that “no tier of government is a subset of the other”.

By the apex court’s decision, the action of both the Executive and Legislative arm of the Edo State government is wrong and unconstitutional.

The point of divergence between the leading and the minority judgements in the 2024 case is on whether it is constitutional for the Federal Government to disburse funds from the Federation Account directly to the local governments or not. While the Honourable Justice Akomaye Agim JSC who delivered the leading judgment granted the relief and other ancillary reliefs with the concurrence of Justices Mohammed Lawa Garba JSC, Justice Chioma E. Nwosu-Iheme JSC, Justice Haruna Simon Tsammani JSC, Justice Moore Aseimo Adumein JSC and Justice Jamilu Yammama Tukur JSC, the Honourable Justice Habeeb Adewale O. Abiru JSC dissented.

In the case of Attorney General of Ogun State & 4 ors v. Attorney General of the Federation (2002) 12 SC part II page 1 at pages 26 to 27 the Supreme Court granted the plaintiffs’ claim number 7 which was: A declaration that the Defendant is not entitled within the proper meaning of Section 162(5)(6)(8) of the Constitution of the Federal Republic of Nigeria 1999 to pay the amount standing to the credit of the local government councils in the Federation Account directly to the Local Government Councils and that such payments by the Defendant is illegal and unconstitutional (underline supplied).

Also in Attorney General of Abia State v. Attorney General of the Federation (2005) 6 SC part 1 page 63, the Supreme Court held that sections 7(6) and 162(5) of the Constitution only gave powers to the National Assembly to allocate funds from the Federation Account to a Local Government Council through a State and leave the distribution of the funds to the State Government.

Why did the majority decision depart from the earlier decision on disbursement of funds in the 2024 case and uphold the previous decision on the unconstitutionality of dissolving elected Local Government Councils on the other hand?. The leading judgement presents the basis for its decision as follows:

As it is, the method or procedure put in place by the Constitution to enable the States collect and pay to the Local Government Councils their allocations from the Federation Account is completely defeated and made unworkable and useless by the refusal of the States to pay to the Local Government Councils their allocations from the Federation Account collected for them by the States.

In the dissenting judgement, Abiru JSC pointed out that from the facts before the court deposed to in the Plaintiff’s affidavit and further affidavit, there was no fact to support the allegation that State Governments had employed arm-twisting tactics and refused to deliver local government allocations from the Federation Account to them see Attorney General of the Federation v. Attorney General of Abia State supra at page 295. Abiru JSC relying on Disu v. Ajilowura (2006) 7 SC (part 11) page 1 and Ndifon v. Commissioner of Police (2022) 18 N.W.L.R. part 1862 page 421 at page 449 paragraph B to G held that a party that wants the Supreme Court to depart from its previous decision must adduce cogent and exceptional reasons for his request to be granted. In State v. Ekuwa (2022) 8 N.W.L.R. part 1861 page 1 at page 55 ratio 28 the Supreme Court held that it can set aside its decision when the following conditions are seen to be present in the previous judgement:

That the previous judgement is erroneous, or

That the previous judgement was given per incuriam; or

That the previous judgement is contrary to public policy or is occasioning miscarriage of justice or perpetrating injustice

The Supreme Court did not only depart from its earlier judgement but through its living tree doctrine and progressive interpretation of the Constitution, the court’s judgement is in conflict with the provisions of section 162(5)(6) of the Constitution which says:

(5) The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the State for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.

(6) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State.

By virtue of its section 1(1), the 1999 Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria, and if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void see section 1(3) of the Constitution.

Until section 162(5)(6) of the Constitution is amended, the majority judgement is with respect in conflict with the Constitution as regards reliefs 6,7, 9,11 and 13.

One needs to say in conclusion that contrary to the position in the leading judgement that the procedure of distribution of funds from the Federation Account through the States as provided for in section 162(5)(6) of the 1999 Constitution is a departure from the system in use prior to the 1999 Constitution see Attorney General of the Federation v. Attorney General of Abia State and 35 ors. supra at pages 85, 86, 192 and 193, one submits that the same procedure with the same wordings were provided for in section 149(4)(5) of the 1979 Constitution.

Therefore, section 162(5)(6) of the 1999 Constitution is in pari materia with section 149(4)(5) of the 1979 Constitution.

*Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.

Culled From: The Loyal Nigerian Lawyer.

~ NewsOrient

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