On Thursday, 11 July, 2024, the Supreme Court of Nigeria delivered its judgement in the suit filed by the Federal Government against the 36 state governments. The case is tagged in the media as ‘local government autonomy.’.....See Full Story>>.....See Full Story>>
(1.1) The preliminary objections
While the plausibility of a dispute between the federation (the Federal Government) and the states – however tenuously – as to warrant the invocation of the original jurisdiction of the Supreme Court in line with Section 232(1) of the 1999 Constitution (as amended) may be conceded, it is utterly curious and concerning that the apex court could indeed dismiss the preliminary objection of the defendants that the state Houses of Assembly and the Local Government Councils, who were to be consequentially affected by the decision of the court, were not joined as parties to the suit, thus rendering it incompetent. This amounts to shaving the heads of the Houses of Assembly, in particular and local councils in their absence! As a matter of fact, they have more than sufficient interest in the case than the Federal Government that instituted it.
The combined reading of Sections 4(6)(7), 7(1), 7(6b), 8 (3), 162(8), 198 and Paragraph 12, Part II of Second Schedule of the Constitution grants a state House of Assembly enormous legislative powers, especially on revenue allocation and democratic local government system, which were the planks of the so-called ‘local government autonomy’ suit filed by the Attorney General of the Federation (AGF) on 26 May, 2024. How could the Supreme Court go ahead to pronounce on the reliefs sought by the Federal Government which might strip, erode or derogate from the constitutionally-guaranteed functions of the state House of Assembly without the latter being joined as a party in the suit? It beats imagination! As it turned out, the ruling of 11 July, 2024 did erode, substantially, the powers of the state legislature.
For instance, Section 162(8) provides as follows:“The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.”
But Justice Emmanuel Agim, who read the 11 July, 2024 lead majority decision of the apex court, declared that,“No law of the House of Assembly of a State can validly interfere or deal in any manner with money distributed to the Local Government Council from the Federation Account under S.162(3) of the 1999 Constitution. No such law can prescribe the terms and manner of such distribution or payment of such distributed money by a State to a Local Government Council. This is becausethe distribution is already made by S.162(3) of the 1999 Constitution to the Local Government Council.”
Clearly, the decision of the Supreme Court is contrary to Section 162(8) of the Constitution (supra).
Again, the Supreme Court in its July decision effectively empowers the Federal Government to withhold allocations to local governments that are not democratically elected. What happens in a situation of natural disasters, crisis, insurgency or general unforeseen circumstances, where it is impossible or impracticable to conduct local government elections in parts of a state at the expiration of the tenure of elected council members or where a court order, as it is sometimes the case, restrains the state government and its agencies from conducting local government elections until the issues before the court are determined? Can the House of Assembly of such a state, in line with its legislative powers in Section 4(6)(7) of the Constitution, not enact a law empanelling an interim local council administration?
It beats me hollow how the apex court could deliver such a far-reaching judgement and grant fundamental reliefs sought by the Federal Government without hearing from the state Houses of Assembly.
In Attorney-General of Lagos State v. Attorney-General of the Federation (2004) 18 NWLR (Pt 904) 1,the Supreme Court declined the (counter) relief sought by the Federal Government for “An order nullifying and setting aside the elections conducted by the Lagos State Government on Saturday, 27 March, 2004 into the 57 local government councils established by the Local Government Areas Law No. 5 of 2002 of Lagos State”
for the reason that
“not all the parties interested in the elections, namely the chairmen-elect as well as the Lagos State Independent Electoral Commission have been joined in this case – see – Oloriode v Oyebi, (1984) 1 SCNLR 390 at pp. 400 and 407.”(Emphasis supplied)
I hold that the suit filed by the AGF in May 2024 without joining the state Houses of Assembly, in particular and local governments as parties is grossly incompetent. Therefore, the preliminary objection of the defendants (the state governments) ought to have been upheld by the apex court. In effect, the ruling is concerning.
(1.2) The binding judicial precedents/ stare decisis (a)
Attorney-General of Ogun State & Others v Attorney-General of the Federation (2002)
Following the series of deductions from the Federation Account by the Federal Government to fund some special projects (NNPC priority projects; Central Bank of Nigeria (CBN) priority projects; foreign debts incurred by the Federal Government, etc.), which were considered illegal and unconstitutional, the Attorneys-General of Ogun, Lagos, Oyo, Ondo and Osun States separately approached the Supreme Court in 2001. The five suits of the plaintiffs were consolidated for hearing and determination. Among the reliefs sought by each of the five states was:
“A declaration that the defendant (Federal Government) is not entitled within the proper meaning of Section 162(5), (6) and (8)of theConstitution of the Federal Republic of Nigeria 1999to 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.»
In its unanimous judgement of Friday, 13 December, 2002, the seven justices (Their Lordships Muhammadu Uwais, Alfa Belgore, Uthman Mohammed, Sylvester Onu, Anthony Iguh, Samson Uwaifo, Akintola Ejiwunmi), without equivocation or reservation, granted the claim of the plaintiffs (state governments).
“The claim being straight forward, factual and unequivocal should, in my opinion, be granted. Accordingly, I hereby grant it… As this claim is well grounded with firm roots, it is accordingly granted…” to quote some of the exact words of Justice Sylvester Onu, who read the lead judgement of the apex court on 13 December, 2002.
In the present suit, in 2024, the Supreme Court (Their Lordships Mohammed Garba, Emmanuel Agim, Chioma Nwosu-Iheme, Haruna Tsammani, Moore Adumein and Jamilu Tukur – Justice Habeeb Abiru dissenting) granted the following reliefs sought by the Federal Government:
“9. A DECLARATION that, by virtue of S.162 (3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, the amount standing to the credit of the Local Government Councils in the Federation account shall be distributed to them and be paid directly to them. 11. A DECLARATION that a Local Government Council is entitled to a direct payment from the Federation Account of the amount standing to its credit in the said Federation Account. 13. AN ORDER that the Federation or Federal Government of Nigeria through its relevant officials forthwith commence the direct payment to each Local Government Council of the amount standing to the credit of each of them in the Federation Account.”
It is obvious the Supreme Court in 2024 upended the decision of the same apex court in 2002, worse, without any reference to the 2002 decision! It was not a case of the apex court reviewing its earlier judgement in 2002 and then reversing itself in 2024. There was no single word on the earlier decision of the court in 2002 in the lead majority judgement of 2024 read by Justice Emmanuel Agim! What principles should the lower courts then follow in line withstare decisisor the principle of standing by previous decisions?
The Supreme Court, in line with the doctrine ofstare decisis, was bound by the 2002 decision of the court. And it could not upend it without arguments before it urging it to depart from its previous ruling on the same matter…READ FULL CONTENT FROM THE SOURCE ↔️