Kwara LG: Purported appointment of C’taker chairmen, celebration of illegality, unconstitutionality

We received with rude shock the recent appointment of caretaker Committees for some Local Governments in Kwara State by the Kwara State Governor. This development has indeed attracted series of criticism from well informed members of the public. This is however expected in view of the place of the Local Government in our national life. The issue at hand is however more legal than political given the various subsisting Judgments of the Apex Court relating to the issue. It is upon the foregoing that an examination of the Legality and Constitutionality of the Governor’s action has become imperative.
What is the position of the Law on Local Government Administration?
To answer the above question, a critical examination of the provision of the 1999 Constitution of the Federal Republic of Nigeria (as amended) will no doubt assist us to arrive at a just and informed position. Thus, Section 7 (1) of the 1999 Constitution of the Federal republic of Nigeria provides thus:
7(1) “The system of local Government by Democratically elected Local Government Council is under this Constitution guaranteed: and accordingly, the Governemnt of every state Shall, subject to Section 8 of the Constitution ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such Council”
There is no doubt that the above provision of the 1999 Constitution is Clear, and unambiguous. In other words, going by the above provisions of the Constitution, it is the duty of the Governor of every State (Kwara State as it were in this context) to ensure that the system of Local Government continues unhindered. Thus, any action by any Governor contrary to the foregoing including but not limited to appointment of Caretaker Committee will be void to the extent of its inconsistent with the provision of the 1999 Constitution of the Federal republic of Nigeria.
In interpreting Section 7(1) above, it is pertinent to note that the word “Shall” was deliberately used by the legislators to convey mandatoriness, thus a Governor of a state including Kwara State as it were, has no option than to give effect to the spirits and letters of the Constitution.
Our Courts have emphasized the purport of the word “Shall” when used in an enactment in plethora of cases, thus the Supreme Court in OGIDI V STATE (2005) 5 NWLR (pt. 918) 286 @ 327 par C-G reinforces the position of the law as follows:
“The word “Shall” is used to express…… Command. As used in statues, contracts or the like, the word is generally imperative or mandatory. In common or ordinary parlance: and in its ordinary signification.
The term “Shall” is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. The word in ordinary usage means “Must”, the erudite Jurist, Ogbuagu JSC in ONICHE V ODULUWU (2006) NWLR (pt. 975) 65 @ 89 par A-E reaffirmed the position as follows:
“The word “Shall” is used in expressing a command or exhortation or what is legally mandatory. It’s used in a statue or rules of Court makes it mandatory that the rule or provisions must be observed. In the instant case, the use of the word “Shall” in the provision of Section 7 of the Public Archives Act connotes that the provision is of mandatory nature”
The Supreme Court of Nigeria has no difficulty in exploring the foregoing principle of law in the case of IBRAHIM V OJOMO (2004) 4 NWLR (pt. 862) 89 when it held thus:
“It is a cardinal principle in the construction of a statue that where the words of a statue are clear and unambiguous, those words shall be so construe as to give effect to their ordinary or literal meaning and enforced accordingly.”
It is therefore submitted that based on the principles of law enunciated in various decisions above, the Governor of Kwara State, His Excellency Alhaji Abdulraham has no option than to set the machinery in place for the conduct of Local Government Election in the State rather than resulting to unilateral appointment of Caretaker Committee which is unknown to the Constitution of the Federal republic of Nigeria.
It is also settled law that where the law provides for the doing of act or taking of a step in a particular manner or way, any step or acts done in violation of the statue is null, void and of no effect. We are therefore of the opinion that the purported appointment of the Caretaker Committee by the Governor is null and void.
In INEC V MUSA (2003) 3 NWLR (pt. 806) 72 particularly at page 157 it was held thus:
“First, all powers, legislative, executive and judicial must ultimately be traced to the Constitution. Secondly, the Legislative powers of the Legislatures cannot be exercised inconsistently with the Constitution. Where it is so exercised, it is invalid to the extent of such inconsistencies. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject a body that claims to legislate in addition to what the Constitution had enacted must show that it has denied the Legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a state House of Assembly can alter those Constitution in any way directly or indirectly, unless of course the Constitution itself as an attribute of its Supremacy expressly so authorized”
In view of the foregoing, it is our humble view that Section 7(1) of the 1999 Constitution of the Federal Republic of Nigeria having provided for the mode of operation of the Local Government in the State, the Governor cannot derogate from it.
Another fascinating provisions of the Constitution that are of utmost importance to the issue at hand is the provision of Section 1 (1) & (2) thereof. Accordingly, Section 1(1) of the 1999 Constitution (Supra) provides thus:
(1) This Constitution is Supreme and its provisions shall have binding on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed nor shall any person or group of person take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
From the above provisions, it is established beyond doubt that:
The provision of the 1999 Constitution which include Section 7 have binding force on all authorities and persons in Nigeria.
“All Authorities and Persons” envisage in subsection (1) above include the Governor of Kwara State.
That the said provision of Section 7(1) of the Constitution is binding on the Governor.
No person or group of persons including any purported Caretaker Committees shall take over the Government of Nigeria at whatever level.
Nigeria or any part thereof (including all the Local Governments in Kwara State shall not be governed by any group of people except in accordance with the provisions of the Constitution itself.
Sequel to the foregoing thereof, it is safe to declare as illegal and unconstitutional the Governor purported appointment of the so called Caretaker Committee and must be so declared.
Worthy of note also are the Oaths of office and Allegiance which the Governor took as prescribed by Section 185(1) of the 1999 Constitution and as provided for in the Seventh Schedule to the said Constitution. Accordingly, every elected officer particularly the Governor of a state shall take the Oaths of office and Allegiance to the Constitution.
The Oaths of Allegiance provides thus:
“……………….. do solemnly swear/affirm that I will be faithful and bear true allegiance to the federal Republic of Nigeria and that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria”
It is submitted that part of the Constitutional provisions the Governor sworn to “Preserve, Protect and Defend” is section 7(1) of the 1999 Constitution which guarantee the establishment of a democratically elected Local Government Council in every Local Government in the state. It will therefore be an aberration for the Governor to be observing the provision in the breach.
While one is not unmindful of the power of the State House of Assembly to make a law to regulate Local Government Counal in the state plagued with crisis or to make a law to prescribe for an event upon which are happening in Local Government Councils is dissolved or the Chairman or Vice Chairman of a Local Government Council is removed or vacates his office.
See AKAN V A.G CROSS RIVERS (1982)2 FNR 177
In AKPAN VS UMAH (2002) 7 NWLR (pt 767) 701 Ekpe, the Court of Appeal gave its approval to the foregoing proposition of the law when it held thus:
“Although it is within the legislative power of a state House of Assembly to make a law to regulate a Local Government Council in the State plagued with crisis or to make a law to prescribe for an event upon which happening a Local Government Council is dissolved or the Chairman or Vice Chairman of a Local Government Council is removed or vacates his office, any law made by the House of Assembly which provides for nomination of membership of a Council or appointment of administration or Caretaker Committee to replace a democratically elected Council is Inconsistent with the clear and unambiguous provides which guarantees democratically elected Local Government Council and is therefore unconstitutional to the extent of the inconsistency”
The summary of the above is that not even the Kwara State House of Assembly can by legislation, salvage the breach of the Constitution by the Governor.
The most embarrassing thing about the action of the Governor is the fact that our Appellate Courts have for long settled this issue that a Governor of a State cannot appoint Caretaker Committee for any Local Government in breach of the provisions of Section 7(1) of the 1999 Constitution, yet the Governor did not take the advantage of these erudite decisions. In other words, it amounts to Executive recklessness for the Governor to ignore the Supreme Court Judgment and embark on Voyage of illegality.
In HON CHIGOZIE EZE & ORS V GOVERNOR OF ABIA STATE & OR (2014) LPELR SC 209|2010, His Lordship, Bode Rhodes-Vivor JSC held thus
“7(1) 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.” “On a careful reading, of the above it becomes clear that it is the duty of the Governor to ensure that the system of Local Government continues unhindered. Dissolving Local Government Councils and replacing them with Caretaker Committee amounts to the Governor acting on his whim and caprius, unknown to our laws, clearly illegal. It is the duty of the Governor to ensure their existence rather than being responsible for destroying them. It amounts to Executive recklessness for the 1st respondent to remove from office democratically elected Chairmen, and Councilors and replace them with unelected Chairmen and Councilors under whatever guise. The findings of the Court of Appeal are correct and such an act by the 1st respondent should on no account be ever contemplated. It is illegal, and wrong.”
See also Governor of EKITI STATE & ORS V OLUBUNMO & ORS (2017) 3 NWLR (pt. 1551) @ 1
It is therefore submitted that the Supreme Court having ruled on this issue, the Governor has no option than to obey the decisions.
It is also submitted that the two Supreme Court decision earlier cited having not been set aside by the Court itself, same are binding on the state Government. The two Supreme Court Judgments have equivocally declared the status of the Governor vis-a-vis Section 7(1) of the 1999 Constitution, and to this extent the Judgments are Judgments in rem as regard the power of a State Governor to ensure a system of democratically elected Local Government Council is guaranteed, such decisions are binding on the whole world, parties and non-parties.
What then is the Implication of the Action of the Governor?
It is humbly submitted that the purported appointment of the Caretaker Committee in Kwara State is nothing but a nullity.
A nullity is in law a void act, an act which has no legal consequence. The Act is not only bad but incurably bad.
See SALEH V MONGUNO & ORS (2006) 7 SC (pt. ii) 97 @ 121
That celebrated Jurist, Lord Dinig MR in the case of MACFOY V UAC (1961)3 WLR 1405pc @ 1409 reinstated the position thus:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad you cannot put something on nothing and expect it to stay there. It will collapse.
It is our humble position that the purported appointment of all the Caretaker Committees for Local Governments in Kwara State is nothing but a nullity abinio. The Appointment cannot withstand the test of time and will be rightly declared unconstitutional by the Courts of the Land.