Ondo LCDA : Dr Abiola Oshodi reacts, gives recommendations on effective grassroots development
A SYNOPSIS OF THE JUDGEMENT OF HIGH COURT ON CREATION OF 33 NEW LOCAL COUNCIL DEVELOPMENT AREA – The thoughts of Dr Abiola Oshodi M.D.,F.R.C.P.C., F.A.P.A. APC Canada chapter Vice Chairman.
FACTS : The Claimants in Representative capacity for Akoko Community instituted a suit against the Governor, House of Assembly, and Attorney General of Ondo State on the proprietary of the establishment of new LCDA. They argued before court that the action is illegal, unjust, unfair, and inequitable. And particularly, that Akoko Area with 4 local governments, 49 wards, and 5 constituencies deserve more LCDA than Ọwọ Area with 1 Local governments with 23 wards, 2 constituencies; and that it was unconstitutional for the Governor to sign the law that created the LCDA outside the Government House Alagbaka.
SUMMARY OF ISSUES.
The contention of the Claimants before the court is premised mainly on the interpretation of Section 8(3)(a)- (d) of the 1999 Constitution reproduced below:-
Section 8(3) A bill for a Law of a House of Assembly for the purpose of creating a new local government area shall only be passed if:
(a) a *REQUEST* supported by at least two-thirds majority of members (representing the area demanding the creation of the new local government area) in each of the following, namely –
(i) the House of Assembly in respect of the area, and
(ii) the local government councils in respect of the area, is received by the House of Assembly;
(b) a proposal for the creation of the local government area is thereafter approved in a REFERENDUM by at least two-thirds majority of the people of the local government area where the demand for the proposed local government area originated;
(c) the result of the referendum is then APPROVED by a simple majority of the
members in each local government council in a majority of all the local government councils in the State; and
(d) the result of the referendum is approved by a resolution passed by two-thirds
majority of members of the House of Assembly.
SUMMARY OF ISSUES.
[A]. The Claimants argued before court that there was no record of any request from representative of Akoko in the House of Assembly for a new LGA, nor of any referendum, and since these constitutional requirements subsequent to the creation of New LGA was not followed, the purported action should be declared null and void.
To counter the argument, counsel to Defendants produced evidence of a Public Hearing and reports of a constituted Special Committee and a White Paper on the creation of a new local government that took memoranda from the various groups and political interests in the state. He argued that that since a public hearing was held, there was no need for a referendum. Counsel also argued that although Section 8(3) of the 1999 Constitution spelt out conditions needed for the creation of Local Government Area (LGA), it is not required or mandatory for the creation of Local Council Development Area (LCDA)
My view: Wrong legal approach. Section 8(3) is very clear. The requirements are mandatorily.
[B]. Further, the Defendants asked court to determine, whether in light of the Ondo State Law for the Creation of New LGA 2023, the newly created LCDA are in the same form and format as envisaged by Section 8(3) of the 1999 Constitution. And whether in the light of Section 7(1) of the Constitution, the House of Assembly is not constitutionally empowered to appoint, administer, manage and create needful structures for LGA.
7(1) states emphatically that “The system of local government by democratically elected local government councils is under this constitution guaranteed; and accordingly, the government of every state shall subject to section 8 of this constitution, ensure their existence under a Law which provides for the establishment, *STRUCTURE* , composition, finance and functions of such councils”.
My view : Sound argument. But counsel to Defendants as reported in the Record of Court did not convince the court with enough laws and copious reasonings to lead and educate the court on this plank. He left the job of applying the Lagos State example under President Bola Tinubu as governor using *Attorney-General of Lagos State and Ors v. Attorney- General of Federation and Ors (2004)* to the court and the Judge took advantage of it. Further, he should have argued strongly and asked court to determine: Whether the House of Assembly, having being clothed with the constitutional power to create ” STRUCTURE” for an LGA, a sub-division of the LGA into LCDA can be taken prima facie as creation of new local government area rather than a split of the LGA into convenient units as LCDA for easier administration. (This l suppose would be the locus of an appeal to a higher court).
[C] Whether Section 100 of the Constitution that detailed how a law validly passed by the House of Assembly shall be assented to was breached when the Governor Rotimi Akeredolu signed the Creation of New Local Government Area, Ondo State, Laws of Ondo State 2023.
Also, whether Hon Muyiwa Inakoju and Ors v. Abraham Adeolu Adeleke (2007) is the right law and applicable doctrine with regards to signing of a validly passed law by House of Assembly by the Governor outside the vicinity of Government House Alagbaka.
My view :This is a new question in the Nigerian jurisprudence. The Supreme Court has never been called to handle such question before. Although it did in Inakoju v. Adeleke where it ruled that legislative sessions and duties are required by law to be performed in assigned or designated Chambers for such business. But the Inakoju v Adeleke must be distinguished as a different law not applicable to the Governor. Further, Section 176 that dealt with the validity of laws passed and assented to by HOA and Governor made no reference to place or abode. Our Constitution did not mandate the governor to be escounced to a particular building, abode or jurisdiction before he can perform his duties. If the President can sign a Treaty, International Convention and Protocol in UN building, foreign hotels and conference center or private room on behalf of Nigeria when outside the country, and such acts are deemed as laws and agreement binding on the country, then it would be preposterous to assume that signing of a validly passed law in the private home of the Governor (either in Ọwọ or Ibadan) was an act contrary to the Constitution. Again unfortunately, the counsel to Defendants did not argue well nor counter the Claimants as expected before court.
[D]. Whether the House of Assembly in passing the law obeyed the principle of fairness, justice and equity when it created new 9 new LCDA for Ọwọ and only 6 Akoko considering that the population of Akoko under the census is 701,050, Owo and Ose is 363,789. Counsels to Akoko Community submitted overwhelming documents and Affidavit evidence to prove the injustice of their 6 LCDA compared to the 9 given Owo.
My view :Expectedly, the Court in his wisdom did not bother itself with the claims. Because, the law is trite that the power to determine the number, spread, and structure of a new local government is exclusively with the House of Assembly. Court does not have the jurisdiction to determine who gets what or who was denied. If the Honourable Justice had got into the emotional net or blackmail by the Claimants (led by brilliant and experienced Tolu Babaleye) on the injustice and inequitable number of LCDA given the Akoko Community, the Appeal Court could upturn his decision for lack of jurisdiction.
RECOMMENDATION
1). Owo Community should have applied to be joined in the suit at the commencement of the action at the High Court. I supposed they didn’t because of the Deputy Governor factor. However it’s not too late. They can still do at appeal. We should assemble our Owo born Senior advocates to be joined in the appeal , esteemed Owo born SANS in barrister Kola Olawoye and barrister Oladipo Okpeseyi amongst others should be briefed and engaged to fight the Owo/Ose cause .
2) For an appeal of this type of suit to be successful, a highly experienced and sound lawyer of the rank of a SAN is needed. The lawyers representing the Claimants, Akoko Community did an excellent job. They provided needed evidence and argued their positions with well researched laws. On the contrary, the counsel for the Defendants was sent from the Ministry of Justice. I am sorry to say he did not do as expected. Not his fault though. He is a civil servant – the motivation to do excellently was probably not provided.
3). The Ondo State Government is aware of the political consequences of the judgement with respect to the coming guber election and the emotion of the Owo voters. Hence the recent news of not abadoning the 33 LCDA created. But I don’t believe it. The safest advice is for Ọwọ Community to join the suit. But it would be an expensive voyage, costing several millions of Naira in legal fees, particularly because of the new or novel issue on signing of a state law outside the vicinity of government house or office by a governor.
