By Raphael Nzekwe
Being a paper presented at the Nigerian Bar Association (NBA) Awka Branch, on her 27th Law Week held at the NBA Awka Bar Centre on the 25th day of April, 2025.
Introduction:
Protocols
I feel highly honoured to be invited to deliver a speech on the latest supreme court judgment on the Local Government autonomy: a comparative review of the constitutional implications. The latest Supreme Court judgment on Local Government autonomy is the case of Attorney General of the Federation V. Attorney General of Abia State & Ors. (2024) LPELR-62576 (SC) OR (2024) 17 N.W.L.R [PT.1966] P. 1.
The judgment of the Supreme Court spins around the financial autonomy of Local Government Councils in Nigeria. The Supreme Court’s decision acknowledged and reinforced the principle of Local Government autonomy, making it mandatory that these councils should be directly funded by the Federation Account without state interference. The dispute between the parties, centers on how funds allocated to Local Governments from the Federation Account should be distributed. The State Governments had been receiving these funds and mismanaging them, diverting them for their selfish purposes or paying to the Local Government Councils after undue delays to the inconvenience and annoyance of the Councils, and the Federal Government which sees the Local Government administration as the third tier of Government in Nigeria.
In other to ensure that the Local Governments have the required resources to function effectively and independently, the Supreme Court by a majority decision held that the Local Governments’ funds in account of the Federation shall be paid to them directly by the Federal Government and not through the States any longer.
Facts:
Until recently, the issue of Local Government autonomy had been largely ignored by various State Governments despite the indispensable functions assigned to it by virtue of the fourth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which are:
(a) the consideration and the making of recommendations to a state commission on economic planning or any similar body on –
(i) the economic development of the State, particularly in so far as the areas of authority of the council and of the State are affected, and
(ii) proposals made by the said commission or body;
(b) collection of rates, radio and television licences;
(c) establishment and maintenance of cemeteries, burial grounds and homes for the destitute or infirm;
(d) licensing of bicycles, trucks (other than mechanically propelled trucks), canoes, wheel barrows and carts;
(e) establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public conveniences;
(f) construction and maintenance of roads, streets, street lightings, drains and other public highways, parks, gardens, open spaces, or such public facilities as may be prescribed from time to time by the House of Assembly of a State;
(g) naming of roads and streets and numbering of houses;
(h) provision and maintenance of public conveniences, sewage and refuse disposal;
(i) registration of all births, deaths and marriages;
(j) assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the House of Assembly of a State; and
(k) control and regulation of –
(i) out-door advertising and hoarding,
(ii) movement and keeping of pets of all description,
(iii) shops and kiosks,
(iv) restaurants, bakeries and other places for sale of food to the public,
(v) laundries, and
(vi) licensing, regulation and control of the sale of liquor.
The functions of a Local Government council shall also include participation of such council in the Government of a State as respects the following matters –
(a) the provision and maintenance of primary, adult and vocational education;
(b) the development of agriculture and natural resources, other than the exploitation of materials
(c) the provision and maintenance of health services; and
(d) such other functions as may be conferred on a Local Government council by the House of Assembly of the State.
Hitherto, many State Governments have not only deliberately refused to conduct a democratically elected Local Government council election in their states but also disbursing whimsically the Local Government funds in their accounts contravening with impunity the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly sections 1(1), (2) and (3), 7(1) and (3), 14(1), (2)(a) and (c), 4 and 162 (2), (3), (4), (5), (6), (7) and (8) thereof, which deal with the supremacy of the Constitution, democratically elected Local Government councils, Nigeria as a state based on the principles of democracy and social justice.
Most State Governments of the Federation have at different times, particularly during campaign periods made bogus promises of their readiness to conduct democratically elected Local Government councils’ elections in their various states. No sooner had they been elected into the offices than they reneged upon convoluted excuses and where there is already elected Local Government officials, started dissolving the elected officials of the Local Government areas and appointing caretaker committees by whatever name called, such as interim councils and administrators – a conduct which endangered the continued existence of the Local Government as a third tier of the Federal Government structure, resulting in virtual extinction of some of them.
As a result of the failure of most State Governments in the country to conduct democratically elected Local Government councils election in their various states, some political parties and individuals started filing actions in our various courts in different states praying the Honourable Courts inter alia for an order compelling their states to conduct the Local Government elections. I was also briefed by some political parties to file an action in Anambra State for judicial review to wit: Mandamus and Prohibition and I filed Suit No. A/MISC.66/2017: Peoples Democratic Party & 27 Ors. V. Attorney General and Commissioner for Justice of the Government Anambra State & 2 Ors., praying the Honourable Court among other prayers for an Order of Mandamus compelling the respondents to perform their statutory duty by conducting democratic election in the 21 Local Government Council Areas of Anambra State of Nigeria in accordance with Sections 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 51(2), 59, 54, 64(1) and (2) of the Local Government Law of Anambra State, 1999 (as amended). The case was assigned to Hon. Justice D. C. Maduechesi of the High Court of Justice, Awka for determination and on the 19th day of June, 2018 the Honourable Court delivered an erudite judgment granting all the reliefs sought in the suit. As usual, the State Government proceeded on appeal against the judgment in Appeal No. CA/AW/623/2018: Attorney General & Commissioner for Justice Anambra State & Ors. V. Peoples Democratic Party & Ors.
One of the consequences of the several cases scattered in our different courts: High Courts, Court of Appeal (different Divisions) and the Supreme Court, bordering on the failure of the State Governments to conduct the Local Government Councils’ election in their different states, illegal dissolution of elected Local Government officials and matters like that is that there were also several subsisting orders of our superior courts; some compelling the States to conduct democratic elections of Local Government Councils in their states, some restraining the states from conducting democratic elections of Local Government Councils in their states.
Uninterestingly, the State Governments would always employ the Fabian tactics to make sure that the Local Government Council election would not be conducted. In Anambra State for instance, all the lower court judgments for an Order on the State Government to conduct election in the 21 Local Government Councils in the state were appealed against. In fact, our various courts were inundated with cases on the failure to conduct the Local Government election in the 21 Local Government Councils in the state. It is sad to note at this juncture that even where cases had been fought up to the Apex Court and the latter made the necessary orders in connection with the suit, some state Governors/Governments in Nigeria had notwithstanding the
provisions of Section 287(1) of the Constitution, continuously ignored, disregarded and willfully treated the decisions of the highest court in Nigeria with utmost contempt by either dissolving democratically elected Local Governments Councils or deliberately refusing to ensure that democratically elected councils are put in place as and when due in compliance with the constitutional obligation and duty imposed on them by the provisions in S.7(1) of the Constitution. Unequivocally, we needed as a matter of urgency to come out of this conundrum!
By way of refreshing our memories, Section 287(1) of the Constitution provides as follows:
“The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and courts with subordinate jurisdiction to that of the Supreme Court.”
Again, states that were not interested in conducting democratic elections in their Local Government Councils would invariably not release their funds to them in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly S.162(3), (5) and (6) thereof.
This was the situation when the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, SAN, pursuant to the original jurisdiction of the Supreme Court as provided in Section 232 thereof – courageously and commendably too – took the bull by the horns and brought an action by way of originating summons against the various State Governments of the federation on the 24th day of May, 2024 in Suit No. SC/CV/343/2024: ATTORNEY GENERAL OF THE FEDERATION v. ATTORNEY GENERAL OF ABIA STATE & ORS (2024) LPELR-62576(SC) OR(2024) 17 N.W.L.R PT.1966 @ P.1.
The originating summons raised 15 questions for determination, some of which include:
1. “Whether, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2) (a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 36 State of Nigeria, or anyone of them, acting through their/its respective state Governors and or State House of Assembly, are/is not under obligation to ensure democratic governance at the third tier of government in Nigeria, namely, at the Local Government level?
2. Whether, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2) (a) and (b) and 3(c), 7(1) and (3) 14(1), (2) (a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 36 States of Nigeria, or anyone of them, acting through their/its respective State Governors and or State House of Assembly, can, using state power derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or Executive Orders/other actions (anyhow so called) lawfully dissolve democratically-elected Local Government Councils within the said States/State?
3. Whether, by the combined reading of reading of Sections 1(1), (2) and (3), 4(7), 5(2) (a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 36 States of Nigeria, or anyone of them, acting through their/its respective State Governors and or State House of Assembly, the 1st – 36th Defendants, or anyone of them can, using state powers derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or Executive Orders/other actions (anyhow so called), lawfully dissolve democratically-elected Local Government Councils within the said States and replace them with Caretaker Committees (anyhow so called)?
4. Whether, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2)(a) and (b) and (c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the dissolution of democratically-elected Local Government Councils by the 36 States of Nigeria, or anyone of them, using state powers derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or Executive Orders/other actions (anyhow so called), is lawful and constitutional?
5. Whether, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2) (a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), who, through the instrumentality of either a State Law or an administrative directive/order, dissolves or causes the dissolution of democratically-elected Local Government Councils of their States has not gravely breached the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); hence has committed gross misconduct?…”
The reliefs claimed for in the originating summons include the following amongst others:
“1. A DECLARATION that, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2) (a) and (b) and 3(c), 7(1) and (3) 14(1), (2) (a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Section 318(1), thereof, which defines “government” to include the Government of a Local Government Council, the 36 States of Nigeria, or anyone of them, acting through their/its respective State Governors and or State House of Assembly, are/is under obligation to ensure democratically governance at the third tier of government in Nigeria, namely, at the Local Government level.
2. A DECLARATION that, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2)(a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 36 States of Nigeria, acting through their/its respective States Governors and or State Houses of Assembly, cannot, using state power derivable from Laws enacted by the State Houses of Assembly (any how so called) or Executive Orders/other actions (any how so called) lawful dissolve democratically-elected Local Government Councils within the said States/State.
3. A DECLARATION that, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2)(a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Section 318(1), thereof, which defines “government” to include the Government of a Local Government Council, the 36 States of Nigeria, acting through their respective State Governors and or State Houses of Assembly, none of the 1st – 36th Defendants can, using state powers derivable from Laws enacted by the State Houses of Assembly (any how so called) or executive orders/other actions (any how so called), lawful dissolve any of the democratically-elected Local Government Councils within the said States/State and replace them/it with Caretaker Committees (any how so called).
4. A DECLARATION that, by the combined reading of Sections 1(1), (2) and (3), 4(7), 5(2)(a) and (b) and 3(c), 7(1) and (3) and 14(1), (2)(a), (c) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the dissolution of democratically-elected Local Government Councils by the 36 States of Nigeria, or anyone of them, using state powers derivable from laws enacted by the State Houses of Assembly (any how so called) or Executive Orders/other actions (any how so called), unlawful, unconstitutional, null and void.
5. A DECLARATION that, in the face of violation of the provision of the 1999 Constitution of the Federal Republic of Nigeria by reason of failure to put in place a democratically elected Local Government council guaranteed by Section 7 of the 1999 Constitution of the Federal Republic of Nigeria, the Federal Government/Federation is not obligated under Section 162(5) and (6) of the 1999 Constitution to pay/allocate to a State funds standing to the credit of the Local Government, when no democratically elected Local Government councils guaranteed under the constitution vide Section 7 of the 1999 Constitution are in place….”
The originating summons was supported by an affidavit, a written address and a further affidavit.
The defendants filed preliminary objections, counter-affidavits and written addresses in opposition to the originating summons. The plaintiff filed a 2nd further affidavit in response to all the counter affidavits filed by the defendants and a composite written address in response to the preliminary objections of the defendants.
May I humbly seek your permission to pause at this stage and unmistakably salute the Honourable Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, SAN, for this uncommon courage and sagacity. This is a novel achievement; as it did not happen serendipitously. This is one of his inerasable legacies as the Honourable Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, SAN. Once more I salute his tenacity.
The gist of the case of the Plaintiff is that the states have for decades persistently refused to pay to Local Government Councils the money standing to the credit of their Local Governments in the federation account in violation of S.162(4), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the federation can validly pay the money directly to their owners to protect the intention or objective of the Constitution from being defeated; that the governance of the Local Government Areas by the states using appointees or officers of the states such as Local Government Caretaker Committees, Interim Councils and Administrators amounts to governing or taking control of the government of a Local Government Area, a part of Nigeria, contrary to S.7(1) of the Constitution and therefore in violation of S.1(2) of the Constitution; and that the above mentioned acts of the states in violation of S.162 (4), (5) and (6), S. 1(2) and S.7(1) of the Constitution have endangered the continued existence of the Local Government as the third tier of the Federal Governance structure, most of them are now virtually extinct.
The kernel of the Defendants’ case taken together is fundamentally that the Federation cannot validly pay the money standing to the credit of the Local Governments in the Federation account directly to Local Government Councils as to do so would be in violation of Section 162(5) and (6) of the Constitution which requires that it be paid directly to the states for the benefit of their Local Government Councils and that each state pay the same into a State Joint Local Government Account maintained by the state, that the states are entitled to retain the allocation and use it for the benefit of Local Government Councils, that the failure of some of the States to organize the conduct of democratic elections of Local Government Councils is not deliberate as there were subsisting orders of courts in pending suits restraining them from holding democratic elections of Local Government Councils in their states.
In the exercise of its original jurisdiction in accordance with Section 232(1) of the Constitution, seven justices of the Supreme Court sat for the determination of this suit. Honourable Justice Mohammed Lawal Garba, J.S.C. (Presided) while Honourable Justice Emmanuel Akomaye Agim, J.S.C. read the lead judgment. Others are Honourable Justice Chioma Egondu Nwosu-Iheme, J.S.C, Honourable Justice Haruna Simon Tsammani, J.S.C, Honourable Justice Moore Aseimo A. Adumein, J.S.C, Honourable Justice Habeeb Adewale O. Abiru, J.S.C and Honourable Justice Jamilu Yammama, J.S.C.
The preliminary objections of the Defendants were unanimously dismissed. The Plaintiff’s claims were granted by 6 Justices of the Supreme Court while Honourable Justice Habeeb Adewale O. Abiru dissented partially and granted the Plaintiff’s claims in part.
The Implication of the Supreme Court Judgment on the Local Government Autonomy:
The Supreme Court judgment in Attorney General of the Federation V. Attorney General of Abia State & 35 Ors., (supra) among other things re-affirmed the constitutional provisions on the autonomy of the Local Governments, including financial autonomy. The court directed the withholding by the Federal Government of all allocations of any Local Government that is not democratically elected. Before the judgment the Governors were in the habit of “using arm-twisting tactics to allocate ridiculously low sums of money to various councils within their domain from the sums of money allocated for the benefit of those councils, thereby asphyxiating them”. Every cloud has a silver lining!
The decision of the Supreme Court also empowered the Federal Government to directly transfer the allocations of the Local Governments Councils to the Local Governments accounts when it granted relief 17 in the Plaintiff’s claim which is as follows:
“An order that, the Federation through its relevant officials shall pay to Local Government in a State directly form (sic) the Federation account the amount standing to their credit therein, where the said state has refused or failed to pay to each of them or any one of them, the amount it received or has been receiving on their/its behalf.”
This latestSupremeCourtjudgment clarifies the meaning and application of constitutional provisions, particularly in cases where conflicting interests are at stake. This judicial role has become even more pronounced in contemporary times, especially in cases involving federalism, human rights, the autonomy of Local Government Councils and the doctrine of covering the field.
Before this landmark judgment in Attorney General of the Federation V. Attorney General of Abia State & 35 Ors., (supra), the issue of Local Government autonomy had sparked intense debate in Nigeria for several years. The Supreme Court’s decision in this matter has far-reaching implications, not only for Local Government autonomy but also for the overall application of constitutional principles regarding the distribution of powers between the federal government and the states.
I must however point out at this juncture that the Federal Government has not complied with the order of the Supreme Court on direct transfer of the Local Government funds into their accounts. This is surprising! No logical reason has been adduced by the Federal Government for such failure.
The judgment also made it a gross misconduct for a Local Government Chairman and/or Councilor duly elected by the people to be removed and their councils dissolved whimsically and arbitrarily by any other elected persons in clear abuse of their office and powers.
The Supreme Court order empowering the Federal Government to withhold allocations of any Local Government, where democratic elections have not been conducted to elect the officials of the Local Government, has inexorably compelled the State Governments that had not done so, to hastily conduct democratic elections into the Local Government Councils in the State, Anambra State is one of them. Days of caretaker committees or whatever name called, such as interim councils and administrators, to pilot the affairs of any Local Government Council in Nigeria are now over.
Recommendation:
It is my humble view that the various States Independent Electoral Commissions are not independent at all. The Commissions are still manipulated by the Governors of their various States. In most cases only aspirants that contested under the platform of the Governor’s political party are returned by the Commission as the winners of the election to the Local Government Council. This is the truth that is self-evident!
I know that the Independent National Electoral Commission (INEC) is not yet perfect in the conduct of elections in Nigeria so far, but I hope they will improve. It will be better if the necessary laws are amended – by the National Assembly following the procedure permitted by law – to enable INEC to take over the conduct of Local Governments’ election in Nigeria. To this end, Paragraphs 15 and 15(a) of the third Schedule to the Constitution may now read, “The Commission shall –
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State and the Local Government Councils of the Federation;”
Sections 7(4), (5) and (6), 162(4), (5), (6) and (8) of the Constitution shall also be amended accordingly so that the financial autonomy of the Local Government Councils shall be practicable.
Section 84(5) of the Electoral Act, 2022 shall be amended to bring in nominations to the office of the Chairman, Vice Chairman and councilor of a Local Government Council.
Part VI of the Electoral Act, 2022, covering Sections 98-113 thereof, shall be amended to include the Local Government Councils in Nigeria. Section 108 of the Electoral Act shall be specifically amended to bring in the term of office of the Chairman and the Councilors of a Local Government Council. The term of office of an elected Chairman or Councilor of a Local Government Council shall be four years as that of the Area Councils.
Section 197 1(b) of the Constitution to be repealed so that there will be nothing like State Independent Electoral Commission (SIEC) in the Constitution. None of the State Independent Electoral Commissions is truly independent. They unequivocally operate according to the whims and caprices of the Governor. Part 2 of the 3rd Schedule to the Constitution to be amended to repeal Sections 3 and 4 thereof, which deal with SIEC.
Any other Constitutional or Statutory provisions dealing with Local Government Councils’ establishment, structure, composition, finance, elections, autonomy and functions to be accordingly amended.
Conclusion:
The latest judgment of the Supreme Court on the Local Government Autonomy appears to be the last straw that broke the camel’s back. The coast appears to be clear now, but I am still apprehensive because I cannot predict the next cynical contrivances the Governors would employ to ensure that the Supreme Court judgment is not implemented, because there is one Igbo adage that says that it is not giving a cup of water to the monkey that matters; but retrieving the cup. We must all brace up to the challenges because if one does not lick his lips, the harmattan may assist him to do so.
For the Supreme Court judgment to be more impactful on our democracy, some amendments to the Constitution and other Statutes ought to be done urgently. I have inexhaustively stated some constitutional and statutory provisions that shall be amended to ensure that the Local Government Councils are democratically elected and their financial autonomy guaranteed.
The majority judgment of the Supreme Court is erudite. The partially dissenting judgment of Honourable Justice Habeeb Adewale O. Abiru, J.S.C. is very persuasive and exceptionally interesting. I have painstakingly read all the judgments: the lead, the concurring and the partially dissenting. The judgment of the court remains the lead the judgment.
I shall not end this discourse without expressing my profound gratitude to the NBA Awka branch, for finding me worthy to deliver this Paper on this special occasion. I also salute the patience of the audience here present for finding time to listen to me. I wish you safe journey and God’s protection to your respective destinations.
Thank you all.