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Landmark judgement

Barrister Anthony Kayode Towoju & ORS


The Governor of Kwara State & ORS


1 Towoju v. Gov., Kwara State (2005) 18 NWLR (Pt.957) 324

The first respondent, who is the Governor of Kwara State, pursuant to the powers conferred on him under and by virtue of section 2 of the Commissions of Enquiry Law of Kwara State, 1994, set up a Commission of Inquiry under the Chairmanship of the 4th respondent to amongst others examine the existing regulations and procedures in the financial management of all the Local Government Areas of the State.

Dissatisfied with the action of the 1st respondent and having felt that, this is a constitutional matter in that it is the House of Assembly of the state that is vested with the power to conduct enquiries into the affairs of the Local Governments, the appellants, who were chairmen of the 16 Local Government Areas of the State between June, 1999 and May, 2002 approached the High Court of Kwara State via an originating summons dated 22nd March, 2004 and filed on 23rd March, 2004, where they formulated five questions thus:

  1. Whether the Governor of Kwara State has power(s) under the 1999 Constitution; the Commission of inquiry Law of Kwara State and the 1999 Local Government Law of Kwara State to set up the Judicial Commission of Enquiry in respect of the Accounts and Finances of the Local Government Councils in Kwara State from 1999 to May, 2002. 2. Whether the Governor or any other person or authority in Kwara State has power(s) under the 1999 Constitution and the 1999 Local Government Law of Kwara State to commission external auditors to examine the finances and audit the accounts of the Local Government councils in Kwara State, from 1999 to May, 2002; with particular reference to sections 7 & 128 of the Constitution and Section 59 of the Local Government Law of Kwara State 1999.
  2. Whether the Kwara State Government can act on the purported report produced by the external auditors so commissioned by the Governor as the basis for setting up the Judicial Commission of Enquiry to probe the tenure of the plaintiffs in their various Local Government Councils of Kwara State from 1999 to May, 2002 and whether the report(s) of the external auditors is/are not liable to be set aside among others.

Based on the questions (supra), the plaintiffs claimed the following reliefs stated hereunder: “1. Declaration that the setting up of the Judicial Commission of Enquiry by the Governor of Kwara State to probe and/or enquire into the finances of plaintiffs as chairmen in their respective Local Government Councils of Kwara State is ultra vires, null and void and of no effect whatsoever, having regards to the provisions of 1999 Constitution, Commission of Enquiry Law and 1999 Local Government Law of Kwara State…

The plaintiffs also sought two other ancillary orders as follows:-“1. An Order quashing the report of the external auditors indicting the plaintiffs and published in various Newspapers particularly Herald Newspaper of 9th March, 2004. 2. An Order restraining the Judicial Commission of Enquiry from exercising jurisdiction in any manner whatsoever in respect of any of the plaintiffs.”

The Originating Summons was supported by a 20-paragraph affidavit deposed to by the 1st plaintiff, Barrister Anthony Kayode Towoju sworn to on the 23rd day of March, 2004. Attached to this affidavit were exhibits A, B and C. A second affidavit in support of the originating summons dated and filed on 31st March, 2004 was deposed to by the 2nd plaintiff, one Comrade Abdullahi Lade, annexed to this affidavit was exhibit D, audit certificate issued by the Auditor General of Local Government in respect of Patigi Local Government where he was the Chairman. The Respondents on the other hand filed a 21-paragraph counter affidavit to the one filed by the plaintiffs. This counter-affidavit was deposed to on the 26th day of March, 2004 by one Yusuf Kawu Daibu, a civil servant who was appointed the secretary of the commission in contention. Attached to this counter-affidavit were two exhibits, a certified true copy of the terms of reference of the commission and a copy of the Oath subscribed by each member of the said commission. Needless to say, both parties relied on the averments of the supporting affidavit as well as the counter-affidavit. Reference to relevant averments will be made in the course of writing this judgment as and when it is appropriate.

The High Court presided over by Sade Ojo (J) in a well-considered ruling delivered on the 24th of May, 2004 dismissed the plaintiffs’ claim. The plaintiffs, now appellants in this court filed a notice of appeal consisting of five grounds on 1st of June, 2004. They are seeking for an order allowing the appeal, and setting aside the judgment of the trial Court and granting all their reliefs. Appearances Wahab Ismail, Esq. For the Appellants Adeola Omotunde, Esq.


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