…Court Says Gov’s Action Unconstitutional
By Wole Adedeji, Ilorin
An appeal by the Kwara State government against a lower court’s judgement on its illegal appointment of Transition Implementation Committees, TICs, in the state’s 16 local government councils has been thrown out.
The Ilorin Division of the Federal Court of Appeal dismissed the appeal in a ruling via zoom, delivered by Justice K.I. Amadi, upholding the judgement of the Kwara State High Court by Justice Hamed A. Gegele in favour of the plaintiffs.
The Elites Network for Sustainable Development, ENetSuD, a non-governmental organization, NGO, the plaintiffs in the case before the Ilorin High Court had in October, 2021 dragged the state government to court, challenging its constitutionality to appoint TICs for the local councils as against conducting elections as stipulated in the Nigerian Constitution.
ENetSuD, an anti-corruption civil society organization, CSO, had dragged the state government before the court in suit number KWS/117/2021, joining Governor AbdulRahman AbdulRazaq, the state Attorney General and the Commissioner for Justice; Salman Jawondo, SAN, as co-defendants.
In the suit filed by its Director of Legal Services, Luqman Raji, ENetSuD challenged the power of the governor over illegal dissolution of the elected chairmen and councillors in the 16 local government areas of the state as well as the appointment of the TIC members.
The NGO said the governor abused section 29(1) to (5) of the Kwara State Local Government Law, 2005 and section 7(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by dissolving the democratically-elected local government councils and replaced them with Transitional Implementation Committees/ Caretaker or whatsoever name called as appointed by the governor or any other body.
ENetSuD had also said that by virtue of the combined effects of section 7 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and the provisions of section 18 and 28 of the Kwara State Local Government Law 2005, the Kwara State governor lacks the power to dissolve the democratically-elected government of the 16 local government areas.
It therefore prayed for an order of the court setting aside the purported appointment of Transitional Implementation Committees by the Kwara State government in March 2021 or any other dates whatsoever as well an order directing the state governor to recover/refund back to the state treasury all funds, remunerations and benefits already paid to members of the said Transitional Implementation Committees.
Ruling on the suit, Justice Gegele of the state High Court in his judgement delivered on October 8, 2021, ruled that it was illegal for the governor to suspend or dissolve a democratically-elected local government council and then replaced them with an illegal TIC that is not known to any law. He also granted all the prayers 1 – 7 listed above as made to the court by ENetSuD.
He also granted other reliefs sought by ENetSuD in the suit.
However, the Kwara State government in an appeal with number CA/IL/122/2021 filed at the Ilorin division of the Court of Appeal avered that the judge of the lower court erred in law when he assumed jurisdiction to entertain ENetSuD’s suit on the TICs case on the basis that it is a public interest case and public spirited individuals are clothed with relevant locus to sue.
In the appeal, filed on its behalf by the Director of Civil Litigation of the state’s Ministry of Justice, Barrister A. M Bello, it said ENetSuD had no bearing to the issue presented before the court, to wit, appointment of TIC in the 16 local government areas and also failed to indicate that she is a taxpayer in Kwara State.
The Kwara State government also said that Justice Gegele erred in law when he held that “…ENetSuD is duly registered under the Incorporated Trustees of CAMA and therefore possessed the necessary legal capacity to sue and be sued in its corporate name.
It said that the judge erred in law when he agreed to ENetSuD’s submission that section 29 of the Kwara State Local Government Law, CAP K33, 2005 is in conflict with the express provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It also said Justice Gegele erred in law when he declared section 29 (1) – (5) of the Kwara State Local Government Law 2006 as unconstitutional, null, void and of no effect whatsoever to the extent that it empowers the governor of Kwara State to dissolve the democratically-elected local government council and replace them with Transitional Implementation Committees.
The judge erred in law when he held that the dissolution of the local government council in Kwara State by the governor of Kwara State and the appointment of TIC is inconsistent with section (71) of the Constitution and therefore null and void, and that it is clearly unconstitutional, illegal and ultra vires the powers of the governor.
It also said that the judge erred in law when he held that any law made by the House of Assembly, which provided for nomination of membership of a council or appointment of an administrator or caretaker committee to replace a democratically-elected council as in the case filed by ENetSuD is inconsistent with the clear and unambiguous provisions of Section 7(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended).
It said that the judgement was against the weight of evidence and sought the Appeal Court to allow the appeal and set aside the judgement of the lower court delivered on 8th October, 2021, by Justice Gegele.
But the Court of Appeal in its decision, delivered by Justice K.I. Amadi, JCA, dismissed the appeal by the Kwara State government and subsequently ruled in favour of ENetSuD.
