Nigerian Federalism And Local Government Autonomy: A Necessity For The Creation Of The Office Of Attorney-General Of Local Government Council

By Hameed Ajibola Jimoh Esq.

On July 11, 2024, the Supreme Court of Nigeria delivered a nationally impactful judgment on Local Government Council Financial Autonomy in Suit No. SC/CV/343/2024, BETWEEN ATTORNEY-GENERAL OF THE FEDERATION AND ATTORNEY-GENERAL OF THE 36 STATES OF THE FEDERATION, while Honourable Justice Emmanuel Akomaye Agim, JSC, read the lead judgment. There were a number of declarative reliefs and orders made by the Court that metamorphosed into ‘Financial Autonomy’ for each of the Local Government Councils in Nigeria (which includes each of the Federal Capital Territory Area Councils, hereafter referred to as FCTAs, as beneficiaries) and liberation from the financial control of the respective State Government in regard to the funds of each of the 768 Local Government Councils and 6 FCTAs held in trust for the said Local Government Councils, which I shall not reproduce in this paper out of context of the topic. Most significantly, the Court declared that.

1. A DECLARATION that 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 democratic governance at the third tier of government in Nigeria, namely, at the Local Government level;
2. A DECLARATION that the 36 States of Nigeria, acting through their/its respective States Governors and or State House 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) lawfully dissolve democratically elected Local Government Councils within the said States/State;

• A DECLARATION that the 36 States of Nigeria, acting through their respective State Governors and or State Houses of Assembly, using state powers derivable from Laws enacted by the State Houses of Assembly (anyhow so called) or executive Orders/other actions (anyhow so called), have no power to dissolve any of the democratically elected Local Government Councils within the said States/State and replace them/it with Caretaker Committees (anyhow so called);

1. A DECLARATION that, by virtue of section 162(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, the amount standing to the credit of Local Government Councils in the Federation account shall be distributed to them and be paid directly to them;
2. A DECLARATION, that the current practice of States keeping, controlling, managing and disbursing Local Government allocations from Federation Account is unconstitutional and illegal;
3. A DECLARATION, that a Local Government Council is entitled to a direct payment from the Federation account of the amount standing to its credit in the said Federation account;

• AN ORDER of injunction restraining the Defendants, by themselves, their privies, agents, officials or howsoever called from further collecting, receiving, spending or tampering with local government council funds from the Federation Account for the benefit of Local Government Councils;
• AN ORDER that the Federation or Federal Government of Nigeria through its relevant officials forthwith commence the direct payment to each Local Government Council of the amount standing to the credit of each of them in the Federation account;

1. AN ORDER OF IMMIEDIATE COMPLIANCE by the States, through their elected or appointed officials and public officers, with the terms of this judgment and orders made in this Suit, and successive compliance by successive Government officials and public officers.

In my humble submission, the above financial autonomy is a step closer to ‘full autonomy’ of each of the local government councils and the FCTAs from the control of the respective state government based on Federalism. Hence, this paper is of the firm submission that this full or absolute financial autonomy now granted to the Local Government Councils, respectively—hereinafter referred to as the LGCs or LGC as the case might be—is a necessity for each of the LGCs to have its own Attorney-General and Chief Legal Officer. Hence this paper.

First and foremost, it is important for me to emphasize the principles of ‘FEDERALISM’ under the Nigerian Laws through legal texts and judicial precedents for a clearer understanding of the purpose of this paper and since ‘FEDERALISM’ is the foundation for the creation of the: Federal; State; and Local Government Councils. Therefore, it is important for me to state and emphasise that Nigeria is a Federal State or Federation. Therefore, Nigeria operates a Federal System of Government. To this extent, there are certain principles of a federal system of government which are applicable to Nigeria (in the present instance), thus

‘A Federal System of Government’ is an association of free states where power is constitutionally shared by the federal, state, and local councils, with each tier of government exercising its constitutionally assigned powers and functions’. A federal constitution, or federal system of government, is one that provides for separate structures of government at the national, state, and local levels, with each tier having its own constitutionally assigned powers and duties. The powers of the different tiers of government are usually spelled out in legislative lists in the constitution of the country. The Exclusive Legislative List is for the Federal Government; the Concurrent Legislative List are powers shared between the Federal Government and State Governments to legislate upon, provided that where there is a clash of laws, the law of the federal government usually prevails because it is the superior law or because it has covered the ground (or the field). The functions of a local government council, on the other hand, are also clearly spelled out in the constitution. Thus, there is a division of powers in the constitution among the different tiers of government, each deriving its powers from the constitution. A federal country usually has a written and rigid constitution, duplication of government at all levels of government, and so forth. Nigeria (as I stated earlier in this paper above) is a federal state that operates a federal system of government. See: Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page 26.

The Supreme Court of Nigeria, in the case of INEC v. MUSA (2003) LPELR-24927(SC), while considering on the issue of ‘What does the legislative power of the National Assembly consist of?’. The Apex court held thus

“The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”.

Furthermore, Tobi, JSC, in A-G, Abia State v. A-G. Federation (2006), 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H, explained the principles of ‘FEDERALISM’ and the powers of the ‘Legislative Arms of Government’ thus:

“There are two legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and the Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. Under Section 4(2), only the National Assembly can exercise legislative powers on the 68 items. The concurrent legislative list contains 30 items. The Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to the House of Assembly of a State as it relates to Section 4(7)(b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters on the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”

Furthermore, on the dichotomy between the ‘Exclusive Legislative List’ and the ‘Concurrent Legislative List’, the Court of Appeal of Nigeria clarified this issue in the case of CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41563(CA) while considering the ‘Scope of the powers of the House of Assembly of a State’ thus 

‘A careful perusal of the Second Schedule Part 1, which deals with Legislative Powers and in particular contains the items in the Exclusive List, “Mines and minerals, including oil fields, oil mining, geological surveys and natural gas,” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore, any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.’

Also, on what a ‘Residual Legislative Powers’ encapsulates, in the case of: A.G. OGUN STATE V. ABERUAGBA & ORS. (1985) 1 NWLR (PART 3) 395 at 405 C-D per BELLO, JSC, (later CJN of blessed memory) had the following to say:

“A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of government were vested in the States. By residual legislative powers within the context of Section 4, it means what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters upon which the Constitution expressly empowered the Federation and the States to legislate had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”.

Furthermore, in the case of A.G. Federation v. A.G. Lagos State (2013), 16 NWLR (Part 1380) 249 SC, it was held that:

‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters on the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has the power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list, and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters, that is, matters that are not in the exclusive and concurrent legislative lists’.

There was a debate published by ‘TheCable’ Newspaper on June 12, 2021, on the debate topic ‘True Federalism’ and other fallacies’. In this debate, opinions were shared on what amounts to ‘Federalism’ in real context and whether there exists anything called ‘TRUE FEDERALISM’ or ‘FALSE FEDERALISM’ and Nigeria is a case study for the said application.

‘The basic definition of federalism can be captured in one sentence: a political entity in which power is shared between the national and subnational governments. One thing is common to all federations: the centre controls defence, monetary policies, and foreign relations. How the rest of the political and legislative powers are shared differs from one federation to the next. In Nigeria, the powers that belong to the federal and state governments are defined on three lists: exclusive (federal), concurrent (federal and state), and residual (states). I have not found any two federations where the items on each list are exactly the same. So, what really is this “true federalism”?

In most federations, there are only two levels: the central and the subnational governments. In Nigeria, we have three tiers: the central (federal), 36 states, and 774 local government areas. The LGAs, though, are only third-tier in name; they are part of the states. The three-tier system is somewhat peculiar to Nigeria. In the US, as with Germany, Ethiopia, and most other federations, there are only two tiers: the national and the subnational. Councils and municipalities are under the state. That does not mean they are practicing “false” federalism. In 1988, Brazil introduced a third tier called municipalities, which are independent of the states. The country has 5,570 of them.

Federal vs Unitary Systems

While the campaign for “true federalism”—as misleading as it sounds—hhas gained so much ground in Nigeria over the years, by far the bigger fallacy is that we can only develop if we practice this imagined system. It is a common argument among the protagonists that unless Nigeria practices “true federalism,” the country will remain stuck in underdevelopment. There is no evidence anywhere in the world to back this claim. No matter the indices we deploy, there is no proof that federalism develops or retards the development of any country. If we push this argument too far, we may end up discovering that centralisation of powers, as in the unitary system, works better.

In a unitary system, power resides with the centre. It decides what to delegate or devolve to the administrative units. This is markedly different from federalism, where the states self-govern. In Nigeria, states are constitutionally empowered to legislate on several items: taxation, education, healthcare, environment, and rural development, among others. You know what? The UN has 193 members, and 165 of them run a unitary system. Do the math. That is an overwhelming 85 percent! In case you are wondering which countries make up the 165, let me list just a few: China, France, and the UK. You can Google it. Did you notice that these three are superheroes? You didn’t? I did.

Let me take it a bit further. Using the UNDP Human Development Index, which measures the quality of life and standards of living in 189 countries, we could say the world’s most prosperous countries in 2019 (reported in 2020) run a unitary, not federal, system. In the Top 20, only seven practice federalism. In fact, in the Top 10, seven are unitary states and only three are federations. If we are to apply a mischievous logic, therefore, we can say that federalism makes countries poor and a unitary system makes them prosperous. Of course, that would be absolutely false: a federal or unitary system does not develop any country. It is good governance that has always done the trick.’.

Therefore, in my humble submission, as Nigeria has adopted ‘FEDERALISM’, there is nothing so called ‘TRUE FEDERALISM’ or ‘FALSE OR UNREAL FEDERALISM’ as the purpose of adopting a particular system of government such as ‘FEDERALISM’ is for ‘GOOD GOVERNANCE’ and a system that encourages ‘SOCIAL JUSTICE’ and ‘EVEN PARTICIPATION’ of all in the politics of the nation without ‘DOMINATION’ or ‘MARGINALIZATION’ of a part of the country by another part. Hence, it is my humble consideration and submission that if the purpose of Nigeria adopting ‘FEDERALISM’ is for there to be ‘GOOD GOVERNANCE’, it should not be of any difficulty to accede to the creation of the ‘OFFICE OF ATTORNEY-GENERAL OF LOCAL GOVERNMENT COUNCIL’ for each of the LGCs.

My Learned brother ‘Sam Kargbo, Esq.’, q.,Kargbo, EQ.e Local GAL OF LOCAL GOVERNMENT COUNCILled ‘principles of GOVERNMENT COUNCIL

had written an article on the topic ‘The Office of the Attorney-General of the Federation (AGF)’. I wish to extract some of the views shared in the said article as they concern this paper.

‘An attorney is a person designated to transact business for another—a legal agent with the authorization of a principal—to do what the principal can lawfully do. The expression Attorney-General was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters. In modern usage, Attorney-General refers to the law firm of the state. Its origin or basis is said to have been that, as the sovereign—President, Prime Minister, Governor, et cetera, as the case may be—could not appear in person in his/her own courts to plead in a case in which he/she had an interest, an attorney appeared on his/her behalf. The complexities and expansive nature of the functions of modern constitutional sovereigns have not only widened the role and duties of the Attorney-General but have also made the office very burdensome and controversial. The scope of the office has since gone way beyond the maintenance of the interest of the sovereign in the courts of the land and/or advising the sovereign and all offices, institutions, agencies, and departments, as well as authorities and persons exercising legislative, executive, and judicial powers, with a view to having them conform to, observe, and apply the provisions of the Constitution. The Attorney-General’s Office is also responsible for the drafting of legislation and vetting of all contracts or agreements to which the government is a party, including international agreements, treaties or conventions. In most modern democracies, the Attorney-General’s Office is made permanent by their constitutions or laws and, in some other cases, executive functions of a cabinet grade are added to the office.’

On this note, under the Nigerian Constitution, section 150 of the Constitution establishes or creates the office of the Attorney-General of the Federation, thus

‘150. (1) There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.

(2) A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of the Federation unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years’. Section 195 of the Constitution provides similarly for a state.

Also, section 174 of the Constitution provides for the powers of the Attorney-General of the Federation.

‘174. (1) The Attorney-General of the Federation shall have power –

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.’

For the purpose of this paper, it is important to reproduce the provisions in respect of the powers of the Attorney-General of a State-herein after referred to as AGS-in section 211 of the Constitution thus

‘211. (1) The Attorney General of a state shall have power

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of a state under subsection 1 of this section may be exercised by him in person or through state officers of his department.

(3) In exercising his powers under this section, the Attorney-General of a state shall have regard to the public interest, the interest of justice, and the need to prevent abuse of the legal process’.

From the provisions of Section 211(1)(a) of the Constitution, which provides thus, by-laws, ‘(1) The Attorney General of a state shall have power

• to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;’ (localunderlined words are mine for emphasis.).

From the above-underlined words, it is clear that the AGS has public prosecution powers on state laws made by the House of Assembly of that state only. I would not think that such constitutional powers extend to ‘laws or by-laws’ made by a local government council (or whatever nomenclature the name is called), which is also a law under Section 36(12) of the Constitution. Hence, criminal laws relating to or incidental to the functions of the local government councils are not within the powers of the AGS; rather, creating the Office of the AGL would have been better to perform such functions in a federal democracy.

Furthermore, sections: 2, 3 and 7 of the Constitution establish the creation of Local Government Councils in Nigeria as the ‘THIRD TIER’ of government thus

‘2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.

(2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.’

By Section 3 of the Constitution, it is provided thus

(1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe, and Zamfara.

(2) Each state of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule.

(3) The headquarters of the Governor of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the State named in the first column thereof.

(4) The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Scheduled to this Constitution.

(5) The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.

(6) There shall be 768 Local Government Areas in Nigeria as shown in the second column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule.’

By Section 7, it is provided thus

‘7. (1) 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. (Underlining is mine for emphasis).

(2) The person authorised by law to prescribe the area over which a local government council may exercise authority shall-

(a) define such area as clearly as practicable; and

(b) ensure, to the extent to which it may be reasonably justifiable that in defining such area regard is paid to –

(i) the common interest of the community in the area;

(ii) traditional association of the community; and

(iii) administrative convenience.

(3) it shall be the duty of a local government council within the State to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by a Law enacted by the House of Assembly of the State.

(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council.

(5) The functions to be conferred by Law upon local government council shall include those set out in the Fourth Schedule to this Constitution.

(6) Subject to the provisions of this Constitution –

(a) the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation; and

(b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the State.’

Respectfully, from Section 7(1) of the Constitution underlined above, which provides thus ‘(1) 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 that provides for the establishment, structure, composition, finance, and functions of such councils.’, it is my humble submission that it becomes mandatory on every state government to ensure the existence under a law that provides for the establishment, structure, composition, finance, and functions of such council’. Hence, it is my humble submission that it is constitutionally mandatory for each of the state governments to create and/or establish an ‘OFFICE OF ATTORNEY-GENERAL’ for each of the local government councils in the state (a compositional and/or structurally related power of the state government with functions over the LGCs). This is because the Constitution used the word ‘SHALL’ which means ‘obligation’. In the case of Dr. Arthur Agwuncha Nwankwo and Ors. V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the apex Court held as follows: the interpretation to be accorded the word ‘shall’ in a statute thus

“The word shall, when used in a statutory provision, implies that something must be done. It is a form of command or mandate. It is not permissive; it is mandatory. The word shall, in its ordinary meaning, is a word of command that is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi v. A.G. Federation (2001) 12 NWLR Pt. 722, p. . 468 Ifezue v. Mbadugha (1984), 1 SCNLR, p. . 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892; Ngige v. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).

More so, where the creation of such office would give room for ‘good governance’, the interpretation or definition of ‘May’ can not (in my humble submission) be taken to mean ‘MAY’ or ‘OPTIONAL’ or ‘DISCRETIONARY’. Hence, I humbly advocate and recommend that each of the Local Government Council or jointly can take up a suit against any of the State Governments for a mandatory order of court to compel such State Government to create and or establish the ‘OFFICE OF ATTORNEY-GENERAL’ of each of the Local Government Councils in that State, more so, financial running of such office would not be  a problem since the Local Government Council by the Supreme Court decision (supra) has now been conferred financial autonomy.

Furthermore, it is now common law that the common approach to interpretation of the Constitution or Statute is to adopt the ‘literal rule of interpretation’ by giving the words in the Constitution or the Statute their ordinary or grammatical meaning in order to bring out the intention of the legislature. It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution, the Court or Tribunal must construe or interpret the statute or the Constitution in order to bring out plainly the real intention of the lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate design or purpose of the Constitution or statute that calls for interpretation. See: 1. HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, J-SC, who said:

“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction, and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506.

It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: ‘Ojokolobo v. Alamu (1987) 3 NWLR Pt. 61 377 @ 402, F-H’; Adisa v. Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR-40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D-G, also per KEKERE-EKUN, JSC, who had this to say:

“In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve, where another construction equally in accordance with and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3.  CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588: “It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are, to some extent, inadmissible in a way that defeats the principles of government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. (Underlining is mine for emphasis). See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt. 91) 622; Tukur v. Government of Gongola State (No. 2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264. The proper approach to the interpretation of clear words in a statute is to follow them in their simple, grammatical, and ordinary meaning rather than look further, because that is what prima facie gives them their most reliable meaning. This is generally also true of the construction of constitutional provisions if they are clear and unambiguous, even when it is necessary to give them a broad liberal interpretation (see Fawehinmi v. IG of Police & Ors. 7 NWLR (Pt. 767) 606 at 678).”. It must also be noted that a person who alleges that an act of the National Assembly or a legislature is invalid or made outside the legislative powers conferred on it by the Constitution has the onus to prove the assertion. See: CHIEF EMMANUEL OLATUNDE LAKANMI V. PETER ADEBAYO ADENE & ORS. (2003) LPELR-1750 (SC) 1 at per KALGO, JSC, who said: “That the Court then came to the conclusion that the appellant as plaintiff had the onus of adducing evidence to prove the invalidity or illegality of the relevant decrees or edicts or the order of forfeiture which divested him of his right to the property concerned before it was sold to the respondent. I agree entirely with the Court of Appeal that in the particular circumstances of this case, the onus of proof lay squarely on the appellant. It did not shift, and the appellant, as plaintiff, has the duty to prove that the laws or notice that took away his property from him were ineffective, null, and void before he can succeed.”.

It was further held in this case (i.e. NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATIONS & ANOR. vs. ATTORNEY-GENERAL OF THE FEDERATION & ORS (supra)), thus

‘One of the cardinal or ardent position of the law relating to interpretation of the statute is that a court or tribunal is not entitled to read into a law things that are not contained in the statute or intended. A statute must be interpreted in a way that will not defeat the intention of the legislature. The words used in a statute must be given their natural and grammatical meaning. The provisions of a statute must be read communally, giving important consideration to the intention of the lawmaker. See: 1. DR. O.A. Saraki v FRN (2016) 4 SCM 94 AT 132 G-H, Per Onnoghen, JSC, now Ag. CJN.’ 2. Brittania-U Nigerian Ltd. V SPDC Ltd. & ORS (2016) 3 SCM 44 at 81 Per Ngwuta, JSC, who said, ‘In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meaning.’Whatever method of interpretation is adopted, the paramount thing is that the intention of the lawmaker must not be circumvented or twisted’. (Per Peter Olabisi Ige, J.C.A.).

Therefore, relying on the principles enunciated in the above case laws on interpretation of the Constitution,  I humbly submit that in the case of the interpretation of the provisions of Section 211(1)(a) of the Constitution and the provisions of Section 7(1) of the Constitution as they concern the creation of ‘OFFICE OF THE ATTORNEY-GENERAL OF A LOCAL GOVENRMENT COUNCIL’, for each of the LGCs of the State, which become a ‘germane question’ to be decided by a court of law, as to whether such words in the said provisions have been used by the Constitution, as an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice (and considering the importance of a Local Government Council having her own ‘OFFICE OF THE ATTORNEY-GENERAL’, lean to the broader interpretation (by allowing and or compelling the State Government concerned and or respectively, to create such ‘OFFICE OF THE ATTORNEY-GENERAL’, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution, whereas, in my humble submission, there is no such indication that the Constitution intended the narrow interpretation in this case. To this extent therefore, in my humble submission, the court has to bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are, to some extent, inadmissible in a way that defeats the principles of government enshrined in the Constitution.

Furthermore, it is not in contention that a local Government council possesses the powers to make certain acts or omissions criminal and has general power to make laws for the ‘good government’ and ‘law and order’ of the municipals or local areas under such a local government council under its ‘By-Law’ (a written law, since Nigeria practices written law or legislation). Therefore, by Section 36(12) of the Constitution, it is provided that, as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, or any subsidiary legislation or instrument under the provisions of a law’. Therefore, the general powers of ‘ATTORNEY-GENERAL’ are necessary for the creation of such an office for each of the local government councils in a federal democracy. More so, since such a local government council shall be responsible for the financial running of such an office and not the state government, having regard to the financial autonomy recently conferred on the local government council by the Supreme Court (supra),.

Therefore, and finally (in conclusion), having regard to the above submissions and legal arguments, I humbly recommend the following regarding the creation and/or establishment of the ‘OFFICE OF ATTORNEY-GENERAL OF LOCAL GOVERNMENT’ (without prejudice to all other submissions and recommendations that I have made in this paper):

1. The Constitution should be amended to accommodate the establishment of ‘OFFICE OF ATTORNEY-GENERAL OF LOCAL GOVERNMENT’; or in the alternative,
2. Each of the State Governments should (having regard to section 7(1), 211(1)(a) and 36(12) of the Constitution) establish ‘OFFICE OF ATTORNEY-GENERAL OF LOCAL GOVERNMENT’ for each of the Local Government of Councils in that State; or, in the alternative,

• Having regard to sections 7(1) of the Constitution, 211(1)(a), and 36(12) of the Constitution, each of the Local Government Councils or jointly can take up a suit against any of the State Governments for a mandatory order of court to compel such State Government to create and/or establish the ‘OFFICE OF ATTORNEY-GENERAL’ of each of the Local Government Councils in that State, more so since the financial running of such offices would not be a problem since the Local Government Council, by the Supreme Court decision (supra), has now been conferred financial autonomy.

For further briefings or engagements on the subject of this paper, I can be reached via the below contacts.

hameed_ajibola@yahoo.com    08168292549.

Source: Thenigerialawyer