IN THE HIGH COURT OF JUSTICE OF KOGI STATE OF NIGERIA

IN 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 21
Local 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 28

May, 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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“(i) An order declaring Sections 18, 19 and 20 and Section 21
of the Kogi State Local Government Law 2008 respectively,
as being inconsistent with the letter and spirit of Section
7(1) of the Constitution of the Federal Republic of Nigeria,
1999 (“the 1999 Constitution”) and therefore null and void
to the extent of their inconsistency with the Constitution.

(ii) An order declaring Section 26 subsection (2) and Section

27 of the Kogi State Local Government Law 2008
respectively, as being retrospective, undemocratic and
inconsistent with the letter and spirit of Section 7(1) of the
Constitution of the Federal Republic of Nigeria, 1999 (“the
1999 Constitution”) and therefore null and void to the
extent of their inconsistency with the Constitution.

(iii) An order of perpetual injunction restraining the 1st, 2nd and

3rd 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 1st, 2nd and

3rd 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 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.

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

defendant from further requiring or directing the Claimants
or any of the Local Government Councils in Kogi State or
any of their elected officials to participate at any seminar,
workshop, retreat or excursion and or to pay to the 1st
defendant or any other person(s) any sums of money for
any purpose whatsoever, which have no direct linkage with
the legitimate functions or the budgeted expenditure of
such Local Government Councils.

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 (vi) An order of perpetual injunction restraining the 1st
defendant from usurping the powers of the Auditor-General
of Kogi State by purporting to carry out a direct audit of the
books of account of the Local Government Areas in Kogi
State, under the Chairmanships of the Claimants
respectively, in pursuance of a non-existent power
purportedly derived from Section 103(1) of the 1999
Constitution”.

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
1st defendant also filed a Notice of Preliminary Objection against the
hearing of the substantive matter – that is, the originating Summons.
So also, the 2nd and 3rd 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 1st defendant’s preliminary objection; the 2nd and 3rd
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 1st defendant’s Preliminary
Objection, the 2nd and 3rd 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 1st, 2nd and 3rd defendants.
1ST DEFENDANT’S 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 this
suit and that the Claimants, lack the capacity to bring this
action 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 the
doctrine of separation of power as enshrined in the 1999
Constitution.

3. That the relief as disclosed in the Claimants’ Originating

Summons is seeking to restrain the 1st defendant from
performing its Constitutional role of law making.

4. That the suit does not disclose a reasonable cause of

action against the 1st Defendant.

5. That the affidavits in support of the originating summons

contains legal conclusions, and are incurably defective and
should be struck out by this Honourable Court.”

Learned Counsel – R. O. Atabo, Esq., for the 1st 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 the
light of the facts that each of the Local Government
Chairman in Kogi State took oath of allegiance to the office
of the Chairman, whether the Claimants can bring the
action in a representative capacity instead of a joint action.

2. Whether the Claimants’ suit discloses a reasonable cause

of action fit for judicial determination.

3. Whether this suit is not incompetent having regards to the

fact that the reliefs therein are seeking to restrain the 1st
Defendant/Applicant from performing its Constitutional
legislative function of enacting laws and performing
oversight functions as provided in the 1999 Constitution for
the good governance of Kogi State and all the component
part thereof.

4. Having regards to the affidavit of the Claimants in support

of the originating summons whether the affidavit are not
argumentative 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 1st defendant has been implemented to their
detriment, therefore there is no reasonable cause of action against the
1st 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 in
their being suspended or dissolved by the 1st defendant, the suit is
incompetent. He also submitted that since the 1st 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 1st 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 1st
defendant’s Preliminary Objection, filed a written address dated 30
September, 2009 on 02 October, 2009. He responded to the
arguments of learned Counsel to the 1st 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 Local
Government Councils and their accrued rights have been endangered
by the new Local Government Law at the instance of the 1st 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 1st 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 1ST 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 1st
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 1st 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 1st 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
1st, 2nd and 3rd 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 latter’s 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 are
sufficient to enable the Court adjudicate on the merits of the
originating Summons.
The 1st defendant’s 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 1st defendant’s 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 1st defendant and the learned Senior Counsel, for the Claimants,
regarding Issue 1.
I am in agreement with Mr. Atabo for the 1st 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 Claimants’
originating 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 1st 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

11
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 1st 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.

12
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 there
may emanate a right of action for which a remedy
may 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 1st
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 plaintiff’s 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 1st 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 1st 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
1st and 3rd 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 1st defendant on this issue, is that the
Claimants’ action is predicated on vengeance, vendetta by the 1st
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 1st 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 1st defendant. I, so
hold and resolve Issue 2 against the 1st defendant.
ISSUE 3, is whether or not by their Claim, the Claimants are not
seeking to restrain the 1st 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 1st
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 1st 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 1st 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-à-vis the relevant provisions of
the 1999 Constitution, how can the 1st defendant be sure-footed that
she did the right thing and prove the Claimants wrong. I do not think I
understand the 1st defendant saying that she can enact any law for
Kogi State without let or hindrance and cannot be challenged by
anybody 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 1st 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 1st
defendant’s 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 1st defendant is not empowered under the
1999 Constitution to enact any Law which directly or
indirectly confers upon the 1st and or 3rd 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 1st
and or 3rd 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.

17
 (6) Omitted.
(7) That the 1st 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 1st 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 such
audit.

(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

18
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 1st defendant.
Therefore, whereas, Issues 1, 2 and 3 of the Preliminary
objection by the 1st 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 2nd and 3rd 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

19
 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 2nd and 3rd
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 2nd
and 3rd 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 within
which 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.

20
5. An order of this Honourable Court that the Claimants action
disclosed no reasonable cause of action against the 2nd and
3rd 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 3rd 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 3rd 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 2nd and 3rd defendants/applicants.
4. This suit which is instituted by the Claimants was
instituted without the necessary locus-standi.

21
 7. An order of this Honourable Court striking out or dismiss this
action in is (sic) entirety against the 2nd and 3rd
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 2nd 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 2nd and 3rd 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 many
reliefs 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 2nd and 3rd defendants are public officers.
d. That the suit of Claimants relates the powers
conferred on the 3rd 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.

22
e. That the acts stated in paragraphs 3(d) above relate
to the official acts of the 3rd defendants.
f. That the Claimants allegations against the 2nd and 3rd
defendants/applicants were the powers which were
conferred on the 3rd 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 3rd defendant/applicant has not in any way
commencing the exercise of such powers as vested
on him by the said law.
h. That the 2nd and 3rd defendants/applicants have
powers to execute any law passed by the first
Defendant/Respondent.
i. That when the 3rd 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 2nd and 3rd 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 2nd
and 3rd defendants/applicants.
m. The Kogi State Local Government Councils Law 2008
was never assented to by the 3rd 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

23
 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 2nd and 3rd 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
2nd & 3rd 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 2nd and 3rd defendants/applicants who
are Public Officers having commend (sic) this action after 3
months.

b. Whether the Claimants/respondents’ suit has disclosed a

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

c. Whether the Claimants/respondents have locus standi to

commence this action against the 2nd and 3rd
defendants/applicants.”
The Claimants, through the 2nd Claimant – Hon. Danlami Bologi
Yabagi deposed to a Counter-affidavit dated 02 October, 2009 and
containing 11 paragraphs against the application of the 2nd and 3rd

24
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 26th 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 3rd Defendant on
the 28th 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 11th 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 force
and 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 2nd Defendant is the Chief Law Officer
of the State and also the Chief Legal Adviser to the 1st and
3rd Defendants. I also know that it is his responsibility to
defend all actions and decisions of the 1st and 3rd
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:

25
 (i) That the 2nd Defendant is responsible for the acts and
decisions of the 3rd Defendant.

(ii) That the injurious and offending law is already in

force in Kogi State.

(iii) That the Claimants and all the other Chairmen of the
various Local Governments of Kogi State are already
at a high risk of being dissolved at the whims and
caprices of the 1st and 3rd Defendants before the
expiration 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 all

the Defendants.

(v) It is not true that the Bill was withdrawn from the 3 rd
Defendant since July, 2008.

(vi) All the twenty-one Chairmen of all the Local

Governments of Kogi State have equal interest in this
suit as our rights are jointly and severally affected by
the new Local Government Law.

(vii) That the Law subject of this suit was passed on the
11th of March, 2009.”

There is a written address, at the instance of the Claimants dated

30 September, 2009 in response to the 2nd & 3rd defendants’
Preliminary Objection.
Both Messrs Olorunbogun , learned Deputy Director of Public
Prosecutions for the 2nd & 3rd 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 1st
defendant “between July, and September, 2008 and the 3rd 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 1st defendant
and since this action was commenced on 28/5/2008 (sic) 28 May,

26
2009, it runs foul of Section 2(a) of the Public Officers (Protection) Law.
He submitted that the 2nd and 3rd defendants being Public Officers, in
virtue of Section 18 of the Interpretation Act, Cap. 192, Laws of the
Federation of Nigeria, 1990 ought to have been sued by the Claimants
within three months of the passage of the local Government Law, 2008
which was between July and September, 2008; so this action against
them is statute barred. He referred to OKOH Vs. THE NIGERIA NAVY
(2007) 1 FWLR (Pt. 350)? at PP. 494 – 495; AGU Vs. ODOFIN (1992) 3
SCNJ 1 at 161; EGBE Vs. YUSUF (1992)? SCNJ 162 at 168 AND chief
YAKUBU SANI Vs. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL
& OR (2008) 5 SCNJ 246.
Learned Counsel, furthermore submitted that the Public Officers
(Protection) Law, being a statute of limitation, removes the right of
action, the right of enforcement of a judicial relief and leaves the
Claimant with a bare and empty cause of action which cannot be
enforced. He relied on EMANOR VS. NIGERIAN ARMY (1999) 9 SCNJ 52
at P. 58. He urged me to hold that the cause of action arose between
July and September, 2008 when the Kogi State Local Government
Councils Law, 2008 was passed by the 1st Defendant whilst this suit
was instituted in May, 2009.
On his part, Mr. James, learned Senior Counsel for the Claimants,
first pointed out the conflict in the argument of Mr. Olorunbogun for
the 2nd and 3rd defendants as to when the Kogi State Local Government
Law was passed into Law by the 1st defendant. He referred to
paragraph 9 of the Affidavit of the Claimants by Hon. Danlami Bologi
Yabagi, in support of the originating Summons and paragraph 4(d) of
the Counter-Affidavit of the 2nd and 3rd defendants, against the
originating Ssummons by Benjamin Audu, a Litigation Registrar in the
Chambers of the 2nd defendant, all saying that the Kogi State Local
Government Law, 2008 was passed into Law on 11/3/2009. Therefore,
the learned Senior Counsel submitted that the parties are agreed that

27
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 2nd and 3rd
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) 5
SCNJ 246.
The 2nd & 3rd 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 1st
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 2nd and 3rd defendants. At paragraph 3(o) of the affidavit of

28
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 2nd 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 11th March, 2009 …….” However, at
paragraph 4(d) of the Counter-affidavit of the same Benjamin Audu,
the Litigation Registrar in the 2nd defendant’s Chambers, which was
filed in opposition to the Originating Summons, he deposed to the fact
that “the 1st defendant passed into law the Kogi State Local
Government Law, 2008 on 11/3/2009 by 2/3 member majority
after the 3rd defendant did not assert to the said law”. BUT, at
paragraph 9 of the affidavit of the 2nd 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 1st defendant on 11/3/2009 ….”.
Thus, whilst the 2nd & 3rd defendants said in the Counter-affidavit
against the originating Summons that the Law being challenged by the
Claimants was passed into law by the 1st 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
1st defendant between July and September, 2008.
To my mind, the affidavit evidence provided by the 2 nd and 3rd
defendants in support of the preliminary objection, regarding when the
Kogi State local Government Law, 2008 was passed into law by the 1st
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 1st defendant, of the Local Government Law,
2008. Nevertheless, since both in the Counter-affidavit of the 2nd

29
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 1st defendant on 11 March, 2009
and this was admitted to be so in the Counter-affidavit of Benjamin
Audu, for the 2nd and 3rd defendants, to the originating Summons, I am
satisfied that the Kogi State Local Government Law, 2008 was passed
into law by the 1st 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 1st 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.”

30
 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 2nd and 3rd defendants.
And since it was on 28 May, 2009, that the Claimants filed this action
against the 2nd and 3rd 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 2nd and 3rd defendants.
ISSUE 2: says the suit discloses no reasonable cause of action
against the 2nd and 3rd 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 2nd and 3rd 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 2nd and 3rd 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 2nd and 3rd defendants are not
necessary parties for the determination of the dispute between the
Claimants and the 1st 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 2nd and 3rd
defendants, from this suit.
Learned Senior Advocate – Mr. Ocholi James, for the Claimants
submitted in his response, that the 2nd defendant being the Chief Law
Officer of the State, has the constitutional responsibility to advise and

31
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 3rd defendant, learned Senior
Counsel submitted that whether or not he assented to the Bill which
was passed into law by the 1st defendant on11 March, 2009; certain
duties obligations, rights and powers have been created by the law in
question and which binds the 3rd 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 2nd and 3rd
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,
2nd and 3rd 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 1st,

2nd and 3rd 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

32
 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 1st, 2nd and 3rd defendants, on account of the 1st
defendant’s 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 2nd
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 the
Executive, 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 3rd 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 1st defendant, it has become law and the 3rd
defendant is under lawful obligation to carry out any demands on him

33
as provided in that law, hence paragraphs (iii) & (iv) of the originating
Summons are targeted at the 2nd and 3rd defendants. There is clearly,
a reasonable cause of action against the 2nd and 3rd 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 2nd
and 3rd 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 2nd and 3rd defendants, for
which the former are praying for remedy in Reliefs (iii) & (iv) of their
originating Summons.
I resolve Issue 3 against the 2nd and 3rd defendants.
ISSUE 4 – says that the Claimants/respondents have no locus
standi, to institute this action against the 2nd and 3rd
defendants/applicants.
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

34
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 3rd 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 2nd 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 issues
canvassed 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 1st 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 2nd & 3rd Defendants/Applicants.

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