BASHORUN MAJEED BASUN AJUWON & ORS V. GOVERNOR OF OYO STATE & ORS (2021)

Background

The appellants were elected as chairmen, councillors and other officials of Oyo State Local Government Councils and Local Council Development Areas for a three-year tenure beginning in May 2018. They challenged sections 11 and 21 of the Oyo State Local Government Law 2001, as amended, which purportedly empowered the Governor and the House of Assembly to dissolve elected councils, remove elected officials and appoint transitional or caretaker committees.

The appellants commenced proceedings by originating summons in the High Court of Oyo State. The High Court granted declaratory and injunctive reliefs, holding in substance that the impugned provisions were inconsistent with section 7(1) of the 1999 Constitution. The Court of Appeal allowed the respondents’ appeal, set aside the High Court judgment and struck out the originating summons on the ground that it disclosed no reasonable cause of action and was speculative. The appellants appealed to the Supreme Court.

Issues

1. Whether the respondents’ preliminary objection, directed only at particular grounds of appeal, was competent.
2. Whether the appellants had locus standi and disclosed a reasonable, live and justiciable cause of action.
3. Whether sections 11 and 21 of the Oyo State Local Government Law could validly empower the dissolution or suspension of democratically elected local government councils and the appointment of unelected caretaker committees.
4. Whether the Court of Appeal was bound by the Supreme Court’s decision in Governor of Ekiti State v. Olubunmo concerning a materially similar statutory provision.
5. What remedy was appropriate after the appellants’ tenure had been unlawfully truncated and had expired.

Ratio Decidendi

A preliminary objection is directed to the hearing of an appeal as a whole and is not the proper procedure for attacking only some grounds where other grounds remain capable of sustaining the appeal. The respondents’ objection was therefore incompetent and was discountenanced.

A reasonable cause of action is one with some chance of success when the allegations in the originating process are considered. The appellants’ elected status, the existence of the impugned statutory provisions and the alleged threat to their tenure disclosed a real and imminent legal controversy. Their claim was not academic or based merely on speculation, and they had sufficient interest and locus standi to seek judicial determination.

Section 7(1) of the 1999 Constitution guarantees a system of democratically elected local government councils. By sections 1(1) and 1(3), the Constitution is supreme and any inconsistent law is void to the extent of the inconsistency. Sections 11 and 21 of the Oyo State Local Government Law, insofar as they authorised the truncation of the tenure of elected councils and the substitution of unelected caretaker committees, were inconsistent with section 7(1) and were consequently null and void.

Court Findings

The Supreme Court held that the Court of Appeal wrongly treated the appellants’ claim as futuristic. The statutory provisions themselves created a continuing legal threat to the security of the appellants’ tenure, and the appellants were genuine claimants seeking protection of constitutional rights.

The Court of Appeal also wrongly distinguished Governor of Ekiti State v. Olubunmo. That decision dealt with the same constitutional question and established that a Governor cannot dissolve a democratically elected local government council and replace it with a caretaker committee. The lower court was bound to follow that authority.

The Court criticised the Governor’s dissolution of the councils on 29 May 2019 despite the subsisting High Court judgment and pending appeal, describing the conduct as executive lawlessness and contemptuous disregard of the rule of law. The Court also criticised the respondents’ counsel for failing to candidly confront an authority directly adverse to their position.

Conclusion

The appeal was allowed. The judgment of the Court of Appeal, which had set aside the High Court judgment and struck out the originating summons, was set aside. Because the appellants’ three-year tenure had expired and reinstatement was no longer practicable, the Supreme Court invoked section 22 of the Supreme Court Act and ordered the Government of Oyo State to pay each appellant the salaries and allowances due for the unexpired portion of the tenure, from 29 May 2019 to 11 May 2021. The Attorney-General was directed to file an affidavit confirming compliance, and costs of N20,000,000 were awarded against the first respondent.

Significance

The decision reinforces constitutional supremacy and the guarantee of democratically elected local government councils in Nigeria. It confirms that Governors and State Houses of Assembly cannot use state legislation to arbitrarily dissolve elected councils or replace them with unelected caretaker bodies. It also adopts a liberal approach to standing and reasonable cause of action where constitutional rights and the rule of law are genuinely implicated, and demonstrates that monetary compensation may be ordered where an unlawfully removed elected official cannot be restored because the tenure has expired.