asso. of local goverments

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IN THE HIGH COURT OF JUSTICE OF KOGI STATE OF NIGERIAIN THE KOGI STATE JUDICIAL DIVISION

HOLDEN AT LOKOJA

ON FRIDAY, THE 18TH DAY OF DECEMBER, 2009.BEFORE HIS LORDSHIP: HON. JUSTICE TOM YAKUBU - JUDGE

SUIT NO; HCL/26/2009:MOTION NO:HCL/200M/2009 :

BETWEEN:1. ASSO. OF LOCAL GOVTS. OF NIG. (ALGON )

2. HON. DANLAMI BOLOGI YABAGI(Chairman, Lokoja LGA, Kogi State)

3. HON. OKOLO IKANI BENJAMEN CLAIMANTS/RESPONDENTS

(Chairman, Dekina LGA, Kogi State)

4. HON. GABRIEL DAUDU(Chairman, Ogori/Magongo LGA. Kogi State)

(for themselves and on behalf of the 21Local Government Council Chairmen in

Kogi State)

AND

1. KOGI STATE HOUSE OF ASSEMBLY

2. THE ATTORNEY-GENERAL OF KOGI STATE DEFENDANTS/APPLICANTS

3. THE GOVERNOR OF KOGI STATE

RULING: The Claimants by an Originating Summons filed on 28May, 2009, contend that certain provisions of the Kogi State Local

Government Law, 2008 which was passed into law by the 1 st

defendant, on 11 March, 2009 are inconsistent with the letter and spirit

of Section 7(i) of the 1999 Constitution of the Federal Republic of

Nigeria. Therefore, the Claimants pray for two declarative orders and

four perpetual injunctive reliefs against the defendants, as follows:

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(vi) An order of perpetual injunction restraining the 1 stdefendant from usurping the powers of the Auditor-Generalof Kogi State by purporting to carry out a direct audit of thebooks of account of the Local Government Areas in KogiState, under the Chairmanships of the Claimants

respectively, in pursuance of a non-existent powerpurportedly derived from Section 103(1) of the 1999Constitution.

It is noteworthy that the Claimants had filed a motion on Notice

No. HCL/154m/2009 for an order of interlocutory injunction against the

defendants, pending the determination of the substantive matter. The

1 st defendant also filed a Notice of Preliminary Objection against the

hearing of the substantive matter that is, the originating Summons.So also, the 2 nd and 3 rd defendants, filed a motion on Notice No.

HCL/200M/2009 of 18 September, 2009, containing a Preliminary

objection against the hearing of the originating Summons herein. At

the hearing of the 1 st defendants preliminary objection; the 2 nd and 3 rd

defendants preliminary objection contained in the motion No.

HCL/200M/2009 and the originating summons itself all on 14 October,

2009; the Claimants withdrew the motion No. HCL/154M/2009 for

interlocutory injunction and the same was struck out. Hence, what

remain for determination now are: the 1 st defendants Preliminary

Objection, the 2 nd and 3 rd defendants preliminary objection contained

in the motion No. HCL/200M/2009 of 18 September, 2009 and the

Originating Summons, itself if it survives the preliminary objections

against it by each set of the 1 st , 2 nd and 3 rd defendants.

1 ST DEFENDANTS NOTICE OF PRELIMINARY OBJECTION:

It was filed on 21 July, 2009. The grounds for the objection are

that:

1. This Honourable Court lacks jurisdiction to entertain thissuit and that the Claimants, lack the capacity to bring thisaction in a representative capacity instead of a joint action.

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2. That this suit is not justiciable and it is in breach of thedoctrine of separation of power as enshrined in the 1999Constitution.

3. That the relief as disclosed in the Claimants Originating

Summons is seeking to restrain the 1st

defendant fromperforming its Constitutional role of law making.

4. That the suit does not disclose a reasonable cause of action against the 1 st Defendant.

5. That the affidavits in support of the originating summonscontains legal conclusions, and are incurably defective andshould be struck out by this Honourable Court.

Learned Counsel R. O. Atabo, Esq., for the 1 st defendant, filed a

written address dated 20 July, 2009 in support of the Notice of

Preliminary Objection which he adopted at the hearing hereof. He

identified four (4) issues for determination as follows, namely:

1. Having regard to the claims of the claimants and in thelight of the facts that each of the Local GovernmentChairman in Kogi State took oath of allegiance to the officeof the Chairman, whether the Claimants can bring theaction in a representative capacity instead of a joint action.

2. Whether the Claimants suit discloses a reasonable causeof action fit for judicial determination.

3. Whether this suit is not incompetent having regards to thefact that the reliefs therein are seeking to restrain the 1 stDefendant/Applicant from performing its Constitutionallegislative function of enacting laws and performingoversight functions as provided in the 1999 Constitution forthe good governance of Kogi State and all the componentpart thereof.

4. Having regards to the affidavit of the Claimants in supportof the originating summons whether the affidavit are notargumentative and conclusive contrary to the provisions of Section 87 and 88 of the Evidence Act Cap E14, LFN 2004.

Arguing Issue 1, Mr. Atabo submitted that the Claimants had no

capacity to have brought this action which ought to have been

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instituted by all the Chairmen of the 21 Local Government Council(s) of

Kogi State as a joint action instead of a representative action. His

contention is that each of the Local Government Chairmen took

separate oath(s) of office, individually and that they do not have joint

or collective rights to sue in a representative capacity. He relied on -

1. Bossa Vs. Julius Berger (2005) FWLR (Pt. 290) 1503 at PP.

1514 and 1517 OR (2005) 15 NWLR (Pt. 948) 409;

2. C.C,B (Nig.) Plc Vs. Rose (1998) 4 NWLR (Pt. 544) 37;

3. Olatunji Vs. Registrar, Co-operative Societies (1968) NWLR

393;

4. U.B.A. Vs. Peny Mart (1992) 2 NWLR (Pt. 240) 228 at P. 241;

5. Nworgu Vs. N.L.G. Ltd (2005) All FWLR (Part 280) 1593 and

6. ABDULKADIR & ORS. Vs. Smith (1973) 8 N.S.C.C 407 at 456

457 and that in a representative action, the reliefs sought

must be beneficial to all the Plaintiffs. He referred to AYINDE

Vs. AKINJI (1998) 8 NWLR (Pt. 68) 70.

ISSUE 2: Whether the Claimants suit disclose a reasonable

cause of action for judicial determination.

Learned Counsel referred to and reproduced paragraphs 9, 10,11, 12, 13 and 14 of the affidavit in support of the originating

Summons and thereafter submitted that the Claimants have not shown

in the originating summons that the Kogi State Local Government Law,

2009 enacted by the 1 st defendant has been implemented to their

detriment, therefore there is no reasonable cause of action against the

1 st defendant.

Mr. Atabo submitted that there are three essential elements

which must co-exist in a given state of facts before a reasonable cause

of action can be said to exist in any matter. He named them to be:

(a) The wrongful act of the defendant, which gives the plaintiff

his cause of complaint;

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(b) The resultant damage arising from the said wrongful act of

the defendants and;

(c) Aggregate of facts between the litigants which the Court

will recognize as enabling the plaintiff to enforce his Claim.

He relied on CHEVRON (NIG) LTD Vs. L. D. (NIG) LTD (2007)

16 NWLR (Pt. 1059) 168 and Nwaogwugwu Vs. President

F.R.N. (2007) All FWLR (Pt. 389) 1331 at P. 1335.

Learned Counsel furthermore, submitted that the wrongful act

in the instant case ought to be the implementation of the Local

Government Law in question which was passed in accordance with

Section 10 d(1) (5) of the 1999 Constitution of the Federal Republic of

Nigeria and the same has not resulted in any injury or damage to the

Claimants. He relied on Arabambi Vs. Advance Beverages Ind. Ltd.

(2008) 19 NWLR (Pt. 959) 1 at P. 19 and urged me to resolve this issue

against the Claimants and that since there is no justiciable relief in this

action, the same should be struck out.

Arguing Issue 3, Mr. Atabo submitted that since the action of the

Claimants is predicated on their apprehension of the implementation of

the Kogi State Local Government Law in question, which may result intheir being suspended or dissolved by the 1 st defendant, the suit is

incompetent. He also submitted that since the 1 st defendant has

power to make laws for Kogi State in virtue of Sections 4(7), 128 and

129 of the 1999 Constitution of the Federal Republic of Nigeria, this

Court cannot curtail the powers of the 1 st defendant in violation or

disregard of the doctrine of separation of powers. He relied on Samuel

Ekeocha Vs. Civil Service Commission of Imo State (1981) 1 NLLLR 155;

Senator B. C. Okwu Vs. Senator Joseph Wayas & Ors. (1981) 2 NCLR

522 and Merchant Bank Vs. Federal Ministry of Finance (1961) All NLLR

598. Mr. Atabo, furthermore submitted that it is not the duty of this

Court to declare what the law should be but what the law us. He relied

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on DAPIALONG Vs. JOSHUA DARIYE (2007) 8 NWLR (Part 1036) 239 AT

P. 446 and urged me to hold that the Claimants suit is incompetent.

Regarding Issue 4, Mr. Atabo submitted that paragraphs 14(1)

(9) of the affidavit in support of the originating summons, contain legal

arguments and conclusions in breach of Sections 87 and 88 of the

Evidence Act Cap. E14, Laws of the Federation of Nigeria, 2004 and

that the said paragraph 14(1) (9) aforementioned should be struck

out. He referred to Akpokiniovo Vs. Agas (2004) All FWLR (Pt. 227) 427

at P. 451 and Adamawa State Vs. Attorney General of the Federation

(2006) All FWLR (Part 299) 1508.

Mr. Ocholi James, SAN, for the Claimants in opposition to the 1 st

defendants Preliminary Objection, filed a written address dated 30

September, 2009 on 02 October, 2009. He responded to the

arguments of learned Counsel to the 1 st defendant in the same

manner, on the issues canvassed by the latter.

On Issue 1, Mr. James, SAN, submitted that in virtue of Order 14

Rules 1, 2 and 7 of the Kogi State High Court (Civil Procedure) Rules,

2006 the Rules of this Court, the Claimants action is predicated on

their joint and/or several rights as Chairmen of their respective LocalGovernment Councils and their accrued rights have been endangered

by the new Local Government Law at the instance of the 1 st defendant.

He referred to ABDULRAHEEM Vs. ODULEYE (2007) All FWLR (Pt. 346)

538 at PP. 559 560; Cross River State Newspapers Corporation Vs. J.

L. Oni & 6 Others (1995) 1 SCNJ 218 at 220 OR (1995) NWLR (Part 371)

270. He urged me to hold that all the authorities relied upon by Mr.

Atabo under Issue 1 are irrelevant and inapplicable.

Mr. James, furthermore submitted that the Chairmen of the 21

Local Governments in Kogi State belong to the same class and with a

common interest, rights, duties and obligations and the reliefs being

sought in the action is beneficial to all of them, so the action herein is

competent. He referred to Awudu Vs. Daniel (2005) 2 NWLR (Pt. 909)

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1999 at PP. 204 205 and N.A.C.B. Ltd. Vs. ADEAGBO (2004) 14 NWLR

(Pt. 894) 551 at P. 584 and urged me to hold that the Claimants have

the capacity to maintain this action.

Regarding Issue 2, the learned Senior Counsel, pointed out that

the same issue was argued by the 1 st defendant in the written address

in opposition to the originating Summons which the Claimants

responded to in a Reply on points of law. He adopts the same. See the

Written Address of the Claimants dated 30 September, 2009 but filed

on 02 October, 2009; at paragraph 4.0 thereof: titled REPLY TO

ISSUE TWO OF THE 1 ST DEFENDANT .

Mr. James submitted that the facts and circumstances which

culminated in the Claimants action against the defendants show that

the Claimants vested interests as Chairmen of each of their Local

Government Councils for a period of three years are being endangered

by the promulgation of the Local Government Law of 2008 by the 1 st

defendant which has provided for a reduction of their three year tenure

in office to a two year tenure, which to the Claimants, is wrongful and

so a reasonable cause of action has been disclosed against the

defendants. He relied on Williams Vs. Williams (2008) 10 NWLR (Pt.1095) 364 at PP. 387 and 390. He urged me to hold that the action

herein does not border on mere apprehension, vengeance, vendetta

and likely implementation of the Kogi State Local Government Law,

2008.

Responding to Issue Three, Mr. James, submitted that none of

the reliefs contained in the Claimants originating Summons, sought to

prevent the 1 st Defendant from her constitutional legislative functions,

but the Claimants are contending that the legislative acts of the 1 st

defendant which are inconsistent with the provisions of the 1999

Constitution of the Federal Republic of Nigeria, be declared as null and

void. He submitted that this Court has the powers to determine

whether or not the legislative functions performed by the 1 st defendant

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are in conformity with the provisions of the Constitution of the Federal

Republic of Nigeria, 1999. He referred to ATTORNEY GENERAL, ABIA

STATE & ORS Vs. ATTORNEY GENERAL OF THE FEDERATION (2002)

FWLR (Pt. 101) 1420 at P. 1494 and INAKOJU Vs. ADELEKE (2007) 1

CCLR (8 10) 240 at P. 268 where it was held that the Courts have the

jurisdiction to ensure strict compliance with the constitutional

provisions, by the legislature in the performance of her legislative

functions. He urged me to resolve Issue 3 against the 1 st defendant.

Inrespect of Issue 4, the learned Senior Counsel for the

Claimants, at paragraph 2.0 of his written Reply on Points of Law to the

1 st , 2 nd and 3 rd defendants written addresses, submitted that the

contents of paragraphs 14 (1) - (9) of the affidavit of Honourable

Danlami Bologi Yabagi are information he derived from A. Y.

Mohammed, Esq., while in the latters Chambers in Lokoja on 27 May,

2009 which information he verily believes, in compliance with Sections

88 and 89 of the Evidence Act. The learned Senior Counsel

furthermore submitted that even if paragraphs 14(1) (9) of the

affidavit in question were struck out, the subsisting paragraphs of the

affidavit and the Further and Better Affidavit of Hon. Vincent Baba aresufficient to enable the Court adjudicate on the merits of the

originating Summons.

The 1st defendants written address of 12 October, 2009 but filed

on 14 October, 2009 is a Reply on Points of Law, to the Claimants

written address in response to the 1 st defendants Preliminary

Objection. Mr. Atabo, submitted therein that there is no written

authorization from the parties sought to be represented in the

representative action which is a condition precedent to the institution

of a representative action. That is, the 21 Local Government Chairmen

ought to have authorized the Claimants, in writing, to institute this

action, for and on their behalf. He relied on ATANDE Vs. OLANREWAJU

(1988) 4 NWLR (Pt. 989) 394 at P. 407.

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Learned Counsel, furthermore, submitted that Exhibit P1

annexed to the Claimants Further and Better Affidavit is inrespect of

the suit No. HC/KK/001CV/09 which was struck out but not relisted and

that the suit herein, is not a continuation of the Suit No.

HC/KK/001CV/09.

I have carefully considered the submissions of learned Counsel

for the 1 st defendant and the learned Senior Counsel, for the Claimants,

regarding Issue 1.

I am in agreement with Mr. Atabo for the 1 st defendant, on the

authority of AYINDE Vs. AKINJI (1988) 8 NWLR (Pt. 68) 70, which he

relied upon, that in a representative action, the reliefs sought in the

Claim, must be beneficial to all the Claimants. Further see: AWUDU Vs.

DANIEL (2005) 2 NWLR (Pt. 909) 1999 at PP. 204 205, relied upon BY

Mr. James, for the Claimants, to the same effect that the nature of a

representative action is such that given common interest and common

grievance, a representative suit is appropriate, if the relief sought by

its nature is beneficial to all the persons sought to be represented.

Now, what is the nature of the Claimants action against the 1 st

defendant? I have perused the six reliefs contained in the Claimantsoriginating Summons. It is glaringly clear to me that this action is

mainly challenging the constitutionality of Sections 18, 19, 21, 26 (2)

and 27 of the Kogi State Local Government Law, 2008 as enacted by

the 1 st defendant. The Claimants grouch seems to be that some

Sections/provisions of the aforementioned Law, have endangered their

vested rights as Local Government Chairmen in Kogi State who were

elected for a three-year tenure each but which the 2008 Law

aforementioned, has reduced to two-year tenure. It is therefore

manifestly clear that the persons sought to be represented have

common interest and rights which are allegedly in danger and the suit

herein undoubtedly, is beneficial to all the 21 Local Government

Chairmen in Kogi State.

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I am of the opinion that the appropriate rule of this Court to

apply to the circumstances of this action is Order 14 Rule 13 (d)(iii) of

the Rules of this Court, 2006. It says:

Order 14, Rule 13

Where in any proceedings concerning :

(a) the administration of an estate; or

(b) property subject to a trust; or

(c) land held under customary law as family or community

property; or

(d) the construction of any written instrument, including a

statute;

The Court is satisfied that:

(i) the person, the class or some members of the class

interested cannot be ascertained or cannot readily be

ascertained;

(ii) the person, the class or some members of the class

interested if ascertained cannot be found;

(iii) though the person or the class and the members thereof

can be ascertained and found;it is expedient for the purpose of efficient procedure that one or

more persons be appointed to represent that person or class

member of the class the Court may make the appointment. The

decision of the Court in the proceedings shall be binding on the

person or class of persons so represented.

Thus, in a suit of the nature herein, ideally it is on the application

of the persons who belong to a class who wish to be represented in an

action in Court, that the Court approves the appointment of the

member or members of the class to so represent them. However, from

the wording of the above rule, it is not mandatory for the Court to

make such and appointment. So, the said rule is not rigid but

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permissive. Further see: AMUDU Vs. DANIEL (Supra) where the Court

said:

The rules governing representative action is permissive.

It should therefore not to be seen as rigid but flexible. It

is often described as a tool of convenience which should

be applied not in any strict or rigorous sense but

according to its permissive scope. The Courts have

therefore come to the conclusion that failure to comply

therewith ought not to make an action incompetent. Thus

obtaining leave to sue in a representative capacity is not a

do or die affair. The failure to obtain leave to sue in a

representative capacity does not vitiate the validity of

the action. Thus is because Courts do not easily wish to

deprive citizen who come before their right of action

(LANATOGU VS. AG, EAST CENTRAL STATE (1976) 11 SC

109, BUSARI VS. OSENI (1992) 4 NWLR (Pt. 237) 557,

OTAPO VS. SUMMONU (1987) 2 NWLR (Pt. 58) referred to

pages 222 223 paragraphs E A).

See: also Order 14 Rule 16 of the Rules of this Court, to the

effect that no proceedings shall be defeated by reason of misjoinder or

non-joinder of parties, in an action.

In all, I am satisfied that the Claimants action, is not

incompetent. Therefore, Issue 1, is resolved against the 1 st defendant.

ISSUE 2:

The phrase cause of action has been defined by OPUTA, JSC

in FRED EGBE Vs. THE HON. JUSTICE J. ADEFARASIN (1987) 1 SC. 1 at P.

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37 as the fact or facts which establish or give rise to a right of action.

It is the factual situation which gives a person a right to judicial relief.

In E. AMODU Vs. DR. J. AMODE & ANOR. (1990) 5 NWLR (Pt. 150)

350 at P. 367, the phrase was further said to mean all those things

necessary to give a right of action whether they are to be done by the

defendant or a third person; that is, every fact which is material to be

proved to entitle the plaintiff to succeed and which the defendant

would have right to traverse. And most recently in WILLIAMS VS.

WILLIAMS (2008) 10 NWLR (Pt. 1095) 364 at P. 390, the Supreme

Court, reiterated that:

A cause of action in general, is defined as facts or

situations arising from those facts from which theremay emanate a right of action for which a remedymay be sought.

Further see: ARABAMBI Vs. ADVANCE BEVERAGES IND. LTD (2008) 19

NWLR (Part 959) 1 at Page 19 relied upon by Mr. Atabo, for the 1 st

defendant where the Supreme Court said, inter alia; There must

therefore be a wrongful act of a party i.e. the party sued, which has

injured or given the plaintiff a reason to complain in a Court of law of

consequential damage to him .

It is settled law that a cause of action is determined by the Court with

reference to the plaintiffs claim only. See: OGBIRU Vs. OLOLO (1993)

7 SCNJ (Part II) 447 at P. 454.

The Claimants Claim as shown in the originating Summons

which contain the reliefs sought, the questions for determination and

the affidavit in support of the originating summons, is to the effect that

by the enactment of the Kogi State Local Government Law, 2008 by

the 1 st defendant, the Claimants, who were elected as Chairmen of

their Local Government Councils on a three-year tenure each will be

abridged to a two-year tenure each. The Claimants complain amongst

other things is that the 1 st defendant wrongfully abridged their tenure

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in office as Local Government Chairmen, vide the Kogi State Local

Government Law, 2008 from three years to two years and also that the

1 st and 3 rd defendants have the power to suspend or remove from

office any of the Claimants on an allegation of a wrongdoing or even

dissolve any of the Local Governments in Kogi State and in its place,

put up a transitional committee for the dissolved Local Government

Council.

The contention of the 1 st defendant on this issue, is that the

Claimants action is predicated on vengeance, vendetta by the 1 st

defendant against them for daring to file an action in Court against her

and furthermore that the Claimants brought this action on a mere

apprehension or likely implementation of the Kogi State Local

Government Law, 2008.

I do not think, I am impressed by the submissions of Mr. Atabo,

learned Counsel to the 1 st defendant, on this issue, because it would

tantamount to crying over spilt milk, if the Claimants have to wait for

the 2008 Law in question to be applied on all of them or any of them,

before they approach the Court to challenge the provisions of the 2008

Law which they say, is against their vested interests.I am of the firm opinion that the originating Summons herein,

disclose a reasonable cause of action against the 1 st defendant. I, so

hold and resolve Issue 2 against the 1 st defendant.

ISSUE 3, is whether or not by their Claim, the Claimants are not

seeking to restrain the 1 st defendant from performing her constitutional

legislative function of enacting laws and performing oversight

functions over the Claimants for the good governance of Kogi State

and its components parts thereof.

I have considered the submissions of both learned Counsel on

this issue. Having perused the contents of the originating Summons,

can it be said that the Claimants are contesting the fact that the 1 st

defendant has the power to make laws for the good governance of

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Kogi State and its component parts? I do not think so. I do not see in

any of the six reliefs being sought by the Claimants, praying that this

Court should restrain the 1 st defendant from performing her

constitutional legislative function of making laws for the good

governance of Kogi State or refrain from carrying out her oversight

functions on the Claimants.

The gravamen of the Claimants action is that in the performance

of her constitutional legislative function vide the enactment of the Kogi

State Local Government Law, 2008; the 1 st defendant ran foul of

Sections 4(7) and 7(1) of the 1999 Constitution of the Federal Republic

of Nigeria; hence they want certain provisions of the said Local

Government Law of 2008, declared null and void as being inconsistent

with the aforesaid 1999 Constitution. And if the Court does not

assume jurisdiction over the Claim in order to construe the provisions

of the Local Government Law, 2008 vis--vis the relevant provisions of

the 1999 Constitution, how can the 1 st defendant be sure-footed that

she did the right thing and prove the Claimants wrong. I do not think I

understand the 1 st defendant saying that she can enact any law for

Kogi State without let or hindrance and cannot be challenged byanybody in a Court of law. For, it is one thing for an action to be

challenged in the Court, but it is another thing for the challenge to

succeed. The Claimants have the right to complain, whilst the

defendant have the right to traverse the Claim. That is why the Courts

are established by law, to determine the constitutionality of the actions

or otherwise of the Legislative and Executive arms of Government.

Certainly, that cannot be said to mean that the Court is usurping the

functions of either the Legislature or the Executive. Therefore, the

question of non-observance of the doctrine of separation of powers

between the Judicature and the Legislature, if the former assumes

jurisdiction to determine the constitutionality of the enactment of the

Kogi State Local Government Law, 2008, does not arise. See: THE

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ATTORNEY GENERAL ABIA STATE & ORS V. ATTORNEY GENERAL FO

THE FEDERATION (2002) 2 FWLR (Part 101) 1420 at P. 1494 and

MERCHANT BANK Vs. FEDERAL MINISTER OF FINANCE (1961) All NLR

598 and INAKOJU, IBADAN SOUTH EAST Vs. ADELEKE (2007) 1 CCLR 8

10 at 240 OR (2007) 1 SCNJ 1 at PP. 128 129 per his Lordship M.

USDAPHER, J.S.C. to the effect that the principle of separation of

powers under the Constitution are meant to guarantee good

governance and development and to prevent abuse of power.

I am satisfied that the contention of the 1 st defendant on this

issue is clearly misconceived and the same is resolved against her.

ISSUE 4:

The contention of the 1 st defendant on Issue 4 is that paragraph

14(1) (9) of the affidavit in support of the Originating Summons are

incompetent for offending Sections 87 and 88 of the Evidence Act.

Paragraph 14(1) (9) of the affidavit of Hon. Danlami Bologi

Yabagi, in support of the originating Summons, say:-

14. That I was informed by our A. Y. Mohammed, Esq., at his

Chambers at Lokoja, on 27/5/2009 and I verily believe him

as follows:(1) That having regard to the Sections 4(7), 7(1), 128

and 129 of Constitution of the Federal Republic of

Nigeria, 1999 (the 1999 Constitution), the 1 st

defendants power under the said Constitution are

legislative in nature and can only be exercised with a

view to legislation, as opposed to imposing

disciplinary or punitive measures for unproven

allegations of misconduct against the claimants and

or any other elected official of a Local Government

Council in Kogi State.

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(2) That the 1 st defendant is not empowered under the

1999 Constitution to enact any Law which directly or

indirectly confers upon the 1 st and or 3 rd defendant

power to suspend from office an elected Chairman of

a Local Government Council in Kogi State or any

other elected official of such Council or to dissolve

such Council before the expiration of its tenure of

office.

(3) That Sections 18, 19, 20 and 21 of the Kogi State

Local Government Law 2008, which confer on the 1 st

and or 3 rd defendant power to suspend from office an

elected and serving Local Government Council

Chairman in Kogi State or any other elected official of

a Local Government Council in Kogi State or to

dissolve such Council (as the case may be), is

arbitrary, undemocratic and unconstitutional, for

being inconsistent with the letter and spirit of Sections 4(7), 7(1) and 128 129 of the 1999

Constitution and therefore null and void to the extent

of its inconsistency.

(4) That the said Sections 18, 19, 20 and 21 of the Kogi

State Local Government Law 2008, are also

unconstitutional, null and void for being antithetical

and inimical to the Claimants fundamental right to

presumption of innocence and right to fair hearing as

prescribed by Sections 35(1) and 36(5) of the 1999

Constitution.

(5) Omitted.

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(6) Omitted.

(7) That the 1 st defendant has no power or right to

require or instruct, directly or indirectly, the

Claimants and or any other elected political office

holder of a Local Government Council in Kogi State,

to participate at any seminar, workshop, retreat or

excursion, not to talk of requiring them to pay

exorbitant and exploitative fees as costs of their

participation at such seminar, workshop, retreat or

excursion.

(8) That the 1 st defendant is not empowered by the 1999

Constitution to carry out a direct audit of the books

of account of a Local Government Council in Kogi

State, having regard to Section 125 of the 1999

Constitution, or request such Local Government

Council, purportedly on the strength of Section

103(1) of the Constitution, to submit its books of

account to it (1st

defendant) for the purpose of suchaudit.

(9) That by virtue of Section 125 of the 1999

Constitution, it is the sole and primary responsibility

of the Auditor-General of Kogi State to carry out an

audit of public accounts, including the books of

account of Local Government Councils, in Kogi

State.

Learned Senior Advocate Mr. James for the Claimants

submitted that

since the narrations in paragraph 12(1) (9) of the affidavit, in

question, are based on information received by the deponent, from his

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Counsel and the issues concerned in this action revolves around law,

the depositions in the said affidavit, are in compliance with Sections 87

and 88 of the Evidence Act.

I have considered the depositions in question. I am certain that

the said depositions are not statements of facts which are supposed to

be contained in an affidavit. Each of those depositions contain

questions of law and legal argument/conclusions. They each offend

Sections 87 and 88 of the Evidence Act. Therefore, paragraphs 14(1)

(9) of the affidavit in support of the Originating Summons are each

ordered as struck out.

The alternative submission of Mr. James, for the Claimants, that

the remaining paragraphs 1 13 and 15 17 of the affidavit in support

of the originating Summons, is on a strong wicket. I agree with him. I

hold that Issue 4 is partly, in favour of the 1 st defendant.

Therefore, whereas, Issues 1, 2 and 3 of the Preliminary

objection by the 1 st defendant, each failed. The preliminary Objection

is dismissed on those grounds. Issue 4 thereof, succeeded in part and

it is so granted in part only. So, ordered.

MOTION NO. HCL/200M/2009 : This is at the instance of 2 nd and 3 rd defendants. It is dated 17

September, 2009. It raises a Preliminary Objection, praying for:

1. An order of this Honourable Court that the

Claimants/respondents cannot institute this suit relating to

or which borders on the official and/or Administration acts

of suspending, removing from office, of the

Claimants/respondents or abrogating their tenures of 3

years to 2 years and written directives to the

Claimants/respondents and other Local Government

Councils in Kogi State to attend seminars, workshops,

retreats excursion and payment for such to be made by

the Claimants/Respondents and other Local Government

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Councils in Kogi State to submit their books of accounts to

the public account committee of the first defendants as

alleged by the Claimants/respondents in their originating

summons which said acts were done by the 2 nd and 3 rd

defendants/Applicants in pursuance or execution of their

duties as public officers same not having been instituted

within 3 months as required by the relevant provision of

Section 2(a) of the Public Officers Protection Law.

2. An order of this Honourable Court that in view of prayer (1)

above no cause of action is maintainable against the 2 nd

and 3 rd defendant/applicants since they are public officer

(sic) within the meaning of Section 18 of the interpretation

act.

3. An order of this Honourable Court dismissing this suit in

limine for being statute barred as the suit has been

defeated by the limitation law viz Section 2(a) of the Public

Officers Protection Law, which stipulates the period withinwhich an action can be instituted against any person who

is a public officer for act done in pursuance or in the

executive or intended execution of any Act or Law that is

the constitution of the Federal Republic of Nigeria and Kogi

State Local Government Council Law 2008.

4. An order of this Honourable Court that in view of the

prayers in paragraphs 1 3 above this Honourable Court

lacks the vice (sic) or legal competence or Jurisdiction to

entertain this action already instituted by the

Claimants/Respondents.

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5. An order of this Honourable Court that the Claimants action

disclosed no reasonable cause of action against the 2 nd and

3 rd defendants who have not shown (sic) to have exercised

their powers under the relevant provisions of the Kogi

State Local Government Councils law 2008, the law in

which the 3 rd defendant even withheld his assent when it

was passed by 2/3/ members majority of the first

defendant.

6. An order of this Honourable Court that the

Claimants/respondents lack the locus standing to institute

this suit as they have not shown the interest or injury they

suffered more than other elected Chairmen of other Local

Government Councils on Kogi State by the passage and

intended implementation of the provisions of Kogi State

Local Government Council Law 2008.

GROUNDS OF OBJECTIONS :

1. This suit was not instituted within the period of 3

months as contained in Section 2(a) of the Public

Officer Protection Law.

2. That the 3 rd defendant/applicant is immured (sic)

against legal proceeding under Section 308(2) and

(3) of the 1999 Constitution for the performance of

his official duties.

3. This suit fails to disclose any reasonable cause of

action against the 2 nd and 3 rd defendants/applicants.

4. This suit which is instituted by the Claimants was

instituted without the necessary locus-standi.

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7. An order of this Honourable Court striking out or dismiss this

action in is (sic) entirety against the 2 nd and 3 rd

defendants/applicants.

And for such order or further orders this Honourable Court may deem

fit to make in the circumstance.

In support of the application, is an affidavit containing 04

paragraphs, deposed to by Benjamin Audu, Litigation Registrar, in the

Chambers of the 2 nd defendant. Paragraph 3 of the said affidavit is

reproduced herebelow, for ease of reference and appreciation, to wit:

3. That J. O. Olorunbogun Esq., is one of the Counsel

representing the 2 nd and 3 rd defendants/Applicants in this

case and on 22/7/2009 by 10.00 am prompt during the

course of performing my official duties at the Ministry of

Justice, Lokoja the said Olorunbogun informed me of the

following facts and verily believe him:-

a. That the Claimants/Respondents filed this suit by

originating summons on 28/5/2009 claiming manyreliefs against the defendants/applicants.

b. That the claimants sued the Kogi State House of

Assembly, the Attorney-General of Kogi State as well

as the Governor of Kogi State as first, second and

third defendants respectfully.

c. That the 2 nd and 3 rd defendants are public officers.

d. That the suit of Claimants relates the powers

conferred on the 3 rd defendant/applicant under Kogi

State Local Government Councils Law, 2008 to

suspend and remove Chairmen or elected officials of

Local Government Councils in Kogi state any time

such persons is facing a panel of investigations.

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e. That the acts stated in paragraphs 3(d) above relate

to the official acts of the 3 rd defendants.

f. That the Claimants allegations against the 2 nd and 3 rd

defendants/applicants were the powers which were

conferred on the 3 rd defendant/applicant to remove,

suspend or dissolve the LOCAL Government Councils

in Kogi State under the Kogi State Local Government

Councils Law 2008.

g. That the 3 rd defendant/applicant has not in any way

commencing the exercise of such powers as vested

on him by the said law.

h. That the 2 nd and 3 rd defendants/applicants have

powers to execute any law passed by the first

Defendant/Respondent.

i. That when the 3 rd Defendant/Applicant execute any

law or carry out his official duties which might

caused injury to the Claimants or any person, the

person can institute an action in Court for redress

within 3 months. j. That after the expiration of 3 months the Claimants

or such other persons cannot maintain an action.

k. That the 2 nd and 3 rd defendants/applicants have not

do (sic) any acts against the Claimants in this suit as

the Claims are only against the first defendant.

l. That the Claimants have no complaint against the 2 nd

and 3 rd defendants/applicants.

m. The Kogi State Local Government Councils Law 2008

was never assented to by the 3 rd defendant/applicant

and same was withdrawn from him since July, 2008.

n. That the enactment of Kogi State Local Government

Law 2008 by the first defendant and its relevant

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provisions which the Claimants complained about do

not affect them more than other elected official of

Local Government Councils in Kogi State.

o. That the Kogi State Local Government Law 2008 was

passed into law between July and September, 2008.

p. That the said law commenced on 16/9/2008.

q. That the Claimants/Respondents commenced this

present suit on 28/5/2009 a period, which was more

than 3 months.

r. That the 2 nd and 3 rd defendants/applicants have not

done anything against the Claimants/respondents

which are subject matter of this suit.

There is a written address dated 17 September, 2009 filed by the

2 nd & 3 rd defendants in support of their Preliminary Objection. Three

issues were identified and formulated for determination therein, inter

alia:

a. Whether the Claimants/respondents can validly maintain

this suit against the 2 nd and 3 rd defendants/applicants who

are Public Officers having commend (sic) this action after 3months.

b. Whether the Claimants/respondents suit has disclosed a

reasonable cause of action against the 2 nd and 3 rd


c. Whether the Claimants/respondents have locus standi to

commence this action against the 2 nd and 3 rd


The Claimants, through the 2 nd Claimant Hon. Danlami Bologi

Yabagi deposed to a Counter-affidavit dated 02 October, 2009 and

containing 11 paragraphs against the application of the 2 nd and 3 rd

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defendants. Paragraphs 2 10 of the Counter affidavit are re-

produced hereunder, to wit:

2. I contested election to the office of Chairman of Lokoja

Local Government on the 26 th of July, 2008 and won.

3. That all the other twenty Chairmen of the Twenty (20)

Local Governments of Kogi State were equally elected

through the same election which was conducted on the

same day as stated in paragraph 2 above.

4. That all of Chairmen of the various twenty one Local

Government Areas were sworn in by the 3 rd Defendant on

the 28 th of July, 2008 of (sic) Lokoja and the Oath of office

was administered to us accordingly.

5. I know that the Kogi State Local Government Law, subject

of this litigation was passed into law on the 11 th March,

2009 even though the commencement date was

backdated to the 11 day of September, 2008.

6. I know that the cause of action in this case was not

complete until the passage of the law.

7. I know as a fact that the law in question is already in forceand only the Order of this Honourable court can nullify it.

8. I know that this suit was filed within the time allowed to

sue public officers.

9. I know as a fact that 2 nd Defendant is the Chief Law Officer

of the State and also the Chief Legal Adviser to the 1 st and

3 rd Defendants. I also know that it is his responsibility to

defend all actions and decisions of the 1 st and 3 rd

Defendants.

10. I know that paragraphs 3(d),(e),(g),(k),(l),(m),(n),(o) of the

affidavit of Benjamin Audu are false. In answer I state as

follows:

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(i) That the 2 nd Defendant is responsible for the acts anddecisions of the 3 rd Defendant.

(ii) That the injurious and offending law is already inforce in Kogi State.

(iii) That the Claimants and all the other Chairmen of thevarious Local Governments of Kogi State are alreadyat a high risk of being dissolved at the whims andcaprices of the 1 st and 3 rd Defendants before theexpiration of the three years statutory tenure of office by reason of the law subject of the suit.

(iv) That the Claimants have joint-complaints against allthe Defendants.

(v) It is not true that the Bill was withdrawn from the 3rd

Defendant since July, 2008.

(vi) All the twenty-one Chairmen of all the LocalGovernments of Kogi State have equal interest in thissuit as our rights are jointly and severally affected bythe new Local Government Law.

(vii) That the Law subject of this suit was passed on the11 th of March, 2009.

There is a written address, at the instance of the Claimants dated30 September, 2009 in response to the 2 nd & 3 rd defendants

Preliminary Objection.

Both Messrs Olorunbogun , learned Deputy Director of Public

Prosecutions for the 2 nd & 3 rd defendants and Ocholi James, SAN, for

the Claimants, each adopted their respective written addresses at the

hearing of the Preliminary Objection on 14 October, 2009.

Arguing Issue No. 1, Mr. Olorunbogun, submitted that since the

law being challenged by the Claimants, was passed into law by the 1 st

defendant between July, and September, 2008 and the 3 rd defendant

did not assent to same in July 2008 and it was withdrawn by the 1 st

defendant and passed into Law by 2/3 members of the 1 st defendant

and since this action was commenced on 28/5/2008 (sic) 28 May,

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the Law in question, was passed into Law on 11 March, 2009 which is

when time begins to run against the Claimants and that since this

action was filed on 28 May, 2009; the Claimants have not run foul of

the Public Officer Protection Law, having sued the 2 nd and 3 rd

defendants, within three months of the passage into Law of the Local

Government Law, 2008 which is the subject of this litigation. He relied

on WILLIAMS Vs. WILLIAMS (2008) 10 NWLR (Pt. 1095) 364 at PP. 383

and 397 398.

Indisputably, the Law has been well settled on a legion of

authorities that a statute of limitation removes from a person, the right

to sue a defendant who is a Public Officer, if the action against the

latter is not instituted within a specified time. Thus, one may have a

cause of action, but loose the right to sue on it and enforce it by

judicial process where the time laid down by a limitation law for

initiating such an action has lapsed. Just see: HON. JUSTICE C.C.

NWAOGWUGWU Vs. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA &

ORS. (2007) ALL FWLR (Part 358) 1151 at P. 1173; EMANOR Vs.

NIGERIAN ARMY (1999) 9 SCNJ 52 at P. 58 and CHIEF YAKUBU SANI Vs.

OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ANOR. (2008) 5SCNJ 246.

The 2 nd & 3 rd defendants contention here is that the Public

Officers (Protection) Law, 1963 protects them from the Claimants

action because according to them, this action was not instituted

against them within three months of the passage into Law by the 1 st

defendant, the Local Government Council Law, 2008 which was so

passed between July and September, 2008, whilst this action was filed

against them on 28 May, 2009. The Claimants on their part, say that

the law being challenged in this action was passed by the 1 st defendant

on 11 March, 2009.

I have perused the affidavit evidence offered by the Claimants

and the 2 nd and 3 rd defendants. At paragraph 3(o) of the affidavit of

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Benjamin Audu, in support of this Preliminary Objection, he deposed to

the fact that the Kogi State Local Government Law, 2008 was

passed into Law between July, and September, 2008. On the

other hand, at paragraph 5 of the Counter-affidavit of the 2 nd Claimant,

against this Preliminary Objection, he deposed to the fact that the

Kogi State Local Government Law, subject of this litigation was

passed into law on the 11 th March, 2009 . However, at

paragraph 4(d) of the Counter-affidavit of the same Benjamin Audu,

the Litigation Registrar in the 2 nd defendants Chambers, which was

filed in opposition to the Originating Summons, he deposed to the fact

that the 1 st defendant passed into law the Kogi State Local

Government Law, 2008 on 11/3/2009 by 2/3 member majority

after the 3 rd defendant did not assert to the said law. BUT, at

paragraph 9 of the affidavit of the 2 nd Claimant Hon. Danlami Bologi

Yabagi, in support of the originating summons, he deposed to the fact

that the Kogi State Local Government Law, 2008 was

passed into law by the 1 st defendant on 11/3/2009 ..

Thus, whilst the 2 nd & 3 rd defendants said in the Counter-affidavit

against the originating Summons that the Law being challenged by theClaimants was passed into law by the 1 st defendant on 11/3/2009; the

same deponent of their affidavit in support of the Preliminary objection

says that the Local Government Law, 2008 was passed into law by the

1 st defendant between July and September, 2008.

To my mind, the affidavit evidence provided by the 2 nd and 3 rd

defendants in support of the preliminary objection, regarding when the

Kogi State local Government Law, 2008 was passed into law by the 1 st

defendant, saying it was between July and September, 2008, is

manifestly at large. The phrase between July and September,

2008 has no certainty as to the happening of an event, like the

passing into law by the 1 st defendant, of the Local Government Law,

2008. Nevertheless, since both in the Counter-affidavit of the 2 nd

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Claimant to this application and also in his affidavit in support of the

Originating Summons, he deposed to the fact that the aforementioned

2008 law was passed into law by the 1 st defendant on 11 March, 2009

and this was admitted to be so in the Counter-affidavit of Benjamin

Audu, for the 2 nd and 3 rd defendants, to the originating Summons, I am

satisfied that the Kogi State Local Government Law, 2008 was passed

into law by the 1 st defendant on 11 March, 2009. I, so find.

It is very clear to me that it is the passing into law of the Kogi

State Local Government Law, 2008 by the 1 st defendant on 11/03/2009

which gave rise to the action of the Claimants herein. Hence, the

cause of action in this matter, arose on 11 March, that is, it is on that

date that the cause of action accrued to the Claimants.

See: (1) LAWAL SANDA Vs. KUKAWA LOCAL GOVERNMENT

(1991) 3 SCNJ 35;

(2) JOHN EKEOGU Vs. ELIZABETH ALIRI (1991) 3 SCNJ 45;

(3) OKOH Vs. NIGERIAN NAVY & 2 ORS (2007) 1 FWLR (Pt. 350)

475 and most recently -

(4) WILLIAMS Vs. WILLIAMS (2008) 10 NWLR (Pt. 1095) 364 at

P. 383 where the Supreme Court admonished thus:In order to determine whether an action was

commenced within the period of limitation in a

particular case, all that is required of the Court

is to look at the writ of Summons and the

statement of claim alleging when the wrong

was committed, which gave the plaintiff a

cause of action, and to compare that date with

the date on which the writ of Summons was

filed. That can be done without taking oral

evidence. If the time on the writ of Summons is

beyond the period allowed by the limitation

law, then the action is statute-barred.

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Unarguably, time begins to run against the Claimants, for the

purpose of the limitation Law of 1963, from 11 March, 2009 when the

cause of action accrued to them against the 2 nd and 3 rd defendants.

And since it was on 28 May, 2009, that the Claimants filed this action

against the 2 nd and 3 rd defendants, the filing of the action, is qua timet,

that is within the three months prescribed by the Public Officers

(Protection) Law of Northern Nigeria, 1963 applicable to Kogi State.

Therefore, I hold that this issue is without merits. I resolve it against

the 2 nd and 3 rd defendants.

ISSUE 2: says the suit discloses no reasonable cause of action

against the 2 nd and 3 rd defendants. Mr. Olorunbogun, for the

applicants/objectors submitted that there is no complaint by the

Claimants in their originating Summons and the supporting affidavit

thereto, against the 2 nd and 3 rd defendants; hence this action cannot be

maintained against them. Referring to DANTATA Vs. MOHAMMED

(20050 5 SCNJ 1 at P. 26, he submitted that there is no factual

situation shown by the Claimants against the 2 nd and 3 rd defendants to

entitle them (Claimants) to a remedy against the 2nd

and 3rd

defendants. Learned Deputy Director of Public Prosecutions, further

submitted that the originating Summons and affidavit in support

thereof, disclose a dispute between the Claimants and the 1 st

defendant only. Furthermore, that the 2 nd and 3 rd defendants are not

necessary parties for the determination of the dispute between the

Claimants and the 1 st defendant. He referred to ATTORNEY-GENERAL

OF ABIA STATE VS. ATTORNEY-GENERAL OF THE FEDERATION & ORS.

(2005) 6 SCNJ 1 at P. 13, and urged me to strike the 2 nd and 3 rd

defendants, from this suit.

Learned Senior Advocate Mr. Ocholi James, for the Claimants

submitted in his response, that the 2 nd defendant being the Chief Law

Officer of the State, has the constitutional responsibility to advise and

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defend all decisions, actions and policies whether administrative or

legislative of the Kogi State Government, therefore he is a proper party

in this action, so that he can be bound by the decision of the Court, at

the end of the day. And regarding the 3 rd defendant, learned Senior

Counsel submitted that whether or not he assented to the Bill which

was passed into law by the 1 st defendant on11 March, 2009; certain

duties obligations, rights and powers have been created by the law in

question and which binds the 3 rd defendant which he must obey and

implement. He relied on HYSON (NIG) LTD Vs. IJEOMA & 13 ORS.

(2008) 11 NWLR (Pt. 1097) 1; ADDAX PETROLEUM DEVELOPMENT (NIG)

LTD Vs. CHIEF IBEH & 5 ORS. (2007) All FWLR (Pt. 380) 1558 at P.

1575; GREEN Vs. GREEN (2001) FWLR (Pt. 76) 795 at P. 814 and RINCO

CONSTRUCTION CO LTD Vs. VEEPEE INDUSTRIES LTD (2005) 9 NWLR

(Pt. 929) 85 at P. 100 and urged me to hold that the 2 nd and 3 rd

defendants are necessary parties, to this action so that they can be

bound by the decision of the Court, on it.

I have perused Reliefs (iii) and (iv) of the Originating Summons

herein. They each pray for:

(iii) An order of perpetual injunction restraining the 1st

,2 nd and 3 rd defendants and the Government of Kogi

State in general from recognizing or acting on, or

from continuing to recognize or act on those parts of

the Kogi State Local Government Law, 2008 which

are inconsistent with the 1999 Constitution and

therefore null and void.

(iv) An order of perpetual injunction restraining the 1 st ,

2 nd and 3 rd defendants from purporting to exercise or

threatening to exercise against the Claimants their

purported power under the Kogi State Local

Government Law, 2008 (as amended) to suspend

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from office the Claimants and or any of the elected

political office holders of the Local Government

Council in Kogi State or to dissolve any of such

Councils before the expiration of the three-year

tenure for which they were elected to the Councils

ab initio .

Reliefs (iii) & (iv) of the Claimants originating Summons are

targeted at the 1 st , 2 nd and 3 rd defendants, on account of the 1 st

defendants passage into law of the Kogi State Local Government Law,

2008.

Section 195(1) of the 1999 Constitution of the Federal Republic

of Nigeria, specifically created the office of the Attorney-General of a

State and who shall be the Chief Law Officer of the State and the

Commissioner for Justice of the Government of that State. The 2 nd

defendant in this action is a special creation of the 1999 Constitution

as the Chief Law Officer of Kogi State. He is certainly not limited to

serving only the Executive arm of Government of the State. His

services are for the Government of Kogi State which includes theExecutive, the Legislature and the Judicature. Therefore, it is trite that

in almost all actions in Court involving any arm of the Government of

the State, he is invariably a party to such actions, because he is the

Chief Law Officer of the State. I had thought that the Deputy Director

of Public Prosecutions, from the office of the 2 nd defendant, should

have known that!

Undeniably, the Kogi State Local Government Law 2008, has

created certain duties, obligations responsibilities and powers which

are for the execution of the 3 rd defendant, albeit that he refused to

give his assent to the Law in question. However, since the said Law

was passed into law by the 1 st defendant, it has become law and the 3 rd

defendant is under lawful obligation to carry out any demands on him

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as provided in that law, hence paragraphs (iii) & (iv) of the originating

Summons are targeted at the 2 nd and 3 rd defendants. There is clearly,

a reasonable cause of action against the 2 nd and 3 rd defendants. They

each, are necessary parties, for the effectual and complete

determination of this action.

I am in agreement with the learned Senior Advocate, for the

Claimants, on the authorities he relied upon, on this issue that the 2 nd

and 3 rd defendants, are not parties in this action, just to make for

number of defendants. In RINCO CONSTRUCTION CO. LTD Vs. VEEPEE

INDUSTRIES LTD (Supra) it was succinctly stated that:

The only reason which makes it necessary to make

a person a party to an action is so that he should be

bound by the result of the action.

I am satisfied that the Claimants action herein, discloses a

reasonable cause of action against the 2 nd and 3 rd defendants, for

which the former are praying for remedy in Reliefs (iii) & (iv) of their

originating Summons.

I resolve Issue 3 against the 2 nd and 3 rd defendants.

ISSUE 4 says that the Claimants/respondents have no locusstandi, to institute this action against the 2 nd and 3 rd


The learned Deputy Director of Public Prosecutions

Olorunbogun, Esq., for the Objectors, submitted that the Claimants

have not shown in their originating Summons that their rights are

being affected over and above other elected Local Government

Officials in Kogi State, therefore the Court lacks the jurisdiction to

entertain this action, which he urged, should be struck out. He relied

on ADESOKAN Vs. ADETUNJI (1994) 6 SCNJ 123 at P. 146.

Mr. James, the learned SILK for the Claimants, submitted that the

affidavit evidence herein takes the place of pleadings, this suit being

by originating Summons, on the authority of GOVERNMENT OF KOGI

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STATE & 3 ORS. Vs. ADAVI LOCAL GOVERNMENT COUNCIL & 2 ORS.

(2005) 16 NWLR (Pt. 951) 327 at PP. 338 339. And that the affidavit

evidence in support of the originating Summons, have disclosed a

cause of action which confers on the Claimants the locus to sue the 2 nd

and 3 rd defendants. He relied on ATTORNEY-GENERAL, ADAMAWA

STATE & ORS. Vs ATTORNEY-GNERAL OF THE FEDERATION & ORS

(2005) 18 NWLR (Pt. 958) 581 at P. 623 and ATTORNEY-GENERAL,

ANAMBRA STATE VS. ATTORNEY-GENERAL OF THE FEDERATION & ORS

(2005) 9 NWLR (Pt. 931) 572 at P. 654. He urged me to hold that the

Claimants have shown sufficient interest in their action, in that their

Civil rights which accrued to them in 2008, are in danger of being

infringed by the LOCAL Government Law, 2008.

I have perused the Claimants originating Summons and the

affidavit of the 2 nd Claimant, in support of it and it is clear to me that

the Claimants are Chairmen of the 21 Local Government Councils in

Kogi State. Their grouch is that certain provisions of the Kogi State

Local Government Law, 2008 are against their civil rights because,

according to them, their tenure in office has been abridged under the

said law. There is nothing esoteric in the phrase or term: locus standi. It

means no more than having sufficient interest in an action. If a

person who alleges that his civil right to spend certain number of years

in a public office (tenured office) is being or has been abridged to his

disadvantage, is said not to have the locus or sufficient interest, in

filing an action in Court in order to ventilate his grievance, then I do

not know who else can be said to have locus standi. A person who has

no locus standi in an action is a busy body and just being meddlesome

in other peoples matters which do not concern him. The Claimants

herein, to my mind, do not fit into that description. They are not busy

bodies. See: AG. ANAMBRA STATE Vs. AG. FEDERATION & ORS (Supra)

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at page 654 where the Supreme Court, put the matter beyond

contention that:

Only a person who is in eminent danger of coming

into conflict with the law or whose business or other

activities have been directly interfered with by or

under a law has sufficient interest to sustain a

Claim.

And in ATTORNEY-GENERAL ADAMAWA STATE & ORS VS.

ATTORNEY GENERAL OF THE FEDERATION & ORS. (Supra), the Apex

Court re-echoed that:

A person is said to have locus standi if he has shown

sufficient interest in the action and that his civil rights and

obligations have been or are in danger of being infringed.

For all I have been saying, it is clear that this issue is tenuous

and so it is resolved in favour of the Claimants/Respondents.

In sum, the Preliminary Objection at the instance of the 2 nd and

3rd

defendants/Objectors, having failed on all grounds and issuescanvassed by learned Counsel herein, is Ordered, as dismissed.

HON. JUSTICE TOM YAKUBU, J.JUDGE

18 DECEMBER, 2009.

COUNSEL REPRESENTATION:

OCHOLI JAMES, SAN (with him: A. Y. Mohammed, Esq., Isaac Ekpa, Esq.,

W. A. Aliwo, Esq., U. O. Sule, Esq., A.B. Alfa (Miss) and C. O. Akubo

(Miss. For Claimants/Respondents.

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R. O. ATABO, Esq., (with him: E.Ejiga, Esq., U. Anyeba, Esq., and Lois

Eze, Miss) for 1 st Defendant/Applicant.

J. O. Olorunbogun, Esq., Deputy Director of Public Prosecutions (with

him: K. A. Sule, Esq., Deputy Director and B. Kadiri, Esq., Principal

Legal Officer, Ministry of Justice) for 2 nd & 3 rd Defendants/Applicants.

asso. of local goverments

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