29 June 2009
Lagos — For the second time within four months of Dr. Olusegun Mimiko's assumption of office as governor of Ondo State, his government and the State House of Assembly are at daggers-drawn over the administration of the eighteen local government areas of the state. Davidson Iriekpen and James Sowole give an update on the face-off
The Ondo State House of Assembly in the very early days of the administration of Dr. Olusegun Rahman Mimiko engaged the governor in a cold war over his unilateral dissolution of the executive and the legislative arms of the 18 local government areas of the state. The governor defended his action by faulting the December 15, 2007 election that brought the local government officials to power as illegal. According to him, there were unresolved legal issues before the then Ondo State Independent National Electoral Commission (ODIEC) went ahead to conduct the election.
The dissolution of the councils raised a lot of dust within and outside the state with the House of Assembly vowing to resist it by all lawful means. The lawmakers contended that the action of the governor was contrary to the provisions of the Section 7 of the 1999 Constitution of the Federal Republic of Nigeria and the Section 12 (4) (1) and (2) of the Local Government Law of Ondo State 2007 as amended.
A twist was however, added when the dissolved local government chairmen stormed their respective local government secretariats with full security provided by the Divisional Police Officers in their respective councils purportedly on the order of the Inspector General of Police who acted on the instruction of the Presidency that the ousted chairmen should resume in their respective offices.
The former chairmen were equally surprised on getting to their secretariats to meet the places virtually empty as the state branch of the Nigeria Union of Local Government Employees (NULGE), had directed its members to stay away from office in order not to be caught in the likely crossfire between the two warring parties. That directive paralysed the councils for weeks as workers heeded the directive of the Caretaker Committee for the state NULGE. Despite the resumption of the chairmen who insisted that they were not dissolved, Governor Mimiko had at a meeting held with the Directors of Local Government Administration reminded them of their role as the chief accounting officers of their respective councils.
Before the forceful resumption of the councils' chairmen, they had approached an Akure High Court seeking among others a declaration restraining the governor from dissolving them or doing anything about the councils pending the determination of the suit. Replying the originating summons, Mimiko prayed an Akure High Court to restrain all the former 18 local government Chairmen from parading themselves as Chairmen of Local Government Councils in the state.
Mimiko, who is one of the defendants in the suit Number AK/62/2009 filed by the chairmen of the 18 local governments earlier dissolved by him on March 4 also prayed the court to restrain the council bosses from taking any step(s) towards taking over the offices of the chairmen of the Local Government Councils in the state. A motion on notice filed by Mr. John Baiyeshea, SAN, who is leading nine other counsels for Mimiko hinged the ground of application on "the interest of justice, peace and order in the society to preserve the status quo in this matter pending the final hearing and determination thereof".
The governor in the counter claim to the originating summons of the erstwhile council bosses had averred that the 1st defendant (the governor) did not need to have any sanction or resolution of the Ondo State House of Assembly before taking the action taken on the 4th of March, 2009 as the Executive Governor of Ondo State with respect to the administration of local government councils in Ondo State.
He averred that the plaintiffs (former council chairmen) were never duly or legitimately elected as chairmen of the Local Government councils in Ondo State and as such can not lay claim to have at whatever time legally presided over the said local government councils. Mimiko also said that the purported elections of the plaintiffs as chairmen of local government councils in Ondo State are will and void and of no effect whatsoever;
He therefore sought a declaration that having regard to the expediencies and circumstances on ground on the assumption of office of the 1st Defendant as Executive Governor of Ondo State, the 1st Defendant was justified and entitled to take the step on 4th March, 2009 with respect to the administration of Local Government Councils in the State.
After months of prolonged legal tussle between Governor Olusegun Mimiko and elected local government officials in Ondo State, the Akure High Court Wednesday declared that the December 15, 2007 council election that produced political officers in the 18 local council areas of the state was illegal and unconstitutional. Delivering judgment on the issue, Justice Nelson Adeyanju held that the purported December 15, 2007 council polls were conducted contrary to Section 31 of the Electoral Act, 2006 which stipulated 150 days of notification to all political parties concerned.
Adeyanju said it was unfortunate that the Ondo State Independent Electoral Commission (ODIEC) saddled with the responsibility of conducting elections in the state, did not give the 150 days notification required by law to all parties concerned before it went ahead to conduct the election.
His words: "I hold that the election was illegally and unconstitutionally conducted. It is null and void, since you cannot put something on nothing. The plaintiff's suit is hereby dismissed accordingly. I also hold that plaintiffs are restrained from conducting and parading themselves in whatever manner as the council chairmen of all the 18 local government area of the state."
The hornet's nest was stirred by Mimiko when barely two hours after the Akure High Court's judgment, he constituted and swore in the Caretaker Committees for the local government areas saying it was done in order to prevent a vacuum in the administration of the third tier of government. Mimiko stated that his government took the action after having waited for the full exercise of the rights of the parties at the courts according to its avowed deference to the rule of law and respect for the rights of all. "We commend all parties involved, particularly our teeming citizens, party members and supporters and indeed the opposition party for their patience during the long wait for justice to take its course.
"We restate that in this matter, there is no victor and no vanquished, for it is democracy in action. We ask all to remain law abiding and give all the necessary support to the newly appointed Chairmen of Caretaker Committees, he said.
The names of the Caretaker Chairmen as released by the office of the Commissioner for Information, Ranti Akerele include Tayo Oluwatuyi, Akure South, Simbo Akinola-Obe, Akure North, Siji Akindiose, Ondo East, Taiye Sunday, Idanre and Sunday Afelumo, Akoko North. Others are Tope Adebambo, Akoko North West, Charles Akinniyi, Akoko South West, Oluwole Ogidan, Akoko South East, S.I Ademokun, Ifedore, Moses Akinjiyan, Odigbo, Shadrach Olowojoni, Irele and Elowofela Solomon, Ose. The rest are Dapo Iwala, Okitipupa, Adegbnenro Nomiye, Ilaje, Kennedy Perete, Ese-Odo, Niran Akinniyi, Ile-Oluji/Oke-Igbo and Adeola Fagbayigbo, Owo.
The speed with which the Caretaker Committees were inaugurated generated a lot of controversies among the stakeholders including the House of Assembly that felt slighted by the action of the governor which the lawmakers said ran fowl of the Local Government Law of the state. The House at a news conference presided over by the Speaker, Hon Taofeek Abdulsalam, declared the action of the governor as illegal, null and void and of no effect because the Assembly was not carried along in the exercise as required by the Local Government Law of the State. Abdusalam, who was flanked by all the principal officers of the legislature, ordered the State Police Commissioner, to effect arrest of anybody "who may want to take over the running of council administrations and charge them for trespassing."
Citing Section 12 (4) (2) of the Ondo State Local Government Law 2007 as amended, the speaker said: The governor shall acting on sanction of resolution supported by two thirds majority of the House of Assembly dissolve any local government and appoint an interim committee to oversee its affairs for a period not more than three months or for such longer or further period as the House of Assembly may determine."
Since the House was not carried along, the speaker therefore ordered that "on no account must any agency of government release any fund for these illegal entities and that all well-meaning individuals should impress it on this administration to desist from illegalities." The Speaker said the judgment was being appealed as at the time of the press conference.
Similarly, the Peoples Democratic Party (PDP) in the state also described the action as "most unfortunate and an example of the fact that this state has unfortunately gone to the backwardness of lawlessness". In a release by its Publicity Secretary, Adeyemi Adedipe, the PDP, which also quoted the extant law, said it was unfortunate that the governor, who is a product of rule of law, is now engaging in illegality. Akerele, who urged the people to remain law abiding said there is no victor and no vanquish in the matter as it is demonstration of democracy in action.
To give a bite to its action, the House at its plenary session, last Thursday, passed a resolution barring the Minister of Finance and the Accountant General of the Federation from releasing funds for the administration of the local governments in the state until further notice. The Assembly predicated its decision on the violation of the Section 7 of the 1999 constitution of the Federal Republic of Nigeria and Section 12(4) (1 and 2) of the Local government law of the state.
However, the governor at a parley with journalists said he was convinced by the advice of the Attorney General and Commissioner for Justice Mr Eyitayo Jegede SAN that his action can stand in any court of law. The governor said the Section 12 (4) (2) of the Local Government Law of Ondo State being cited by the lawmakers does not apply in the matter because there was no council to be dissolved in the first instance.
Mimiko said the court ruling which declared that the election that produced the council chairmen and their councillors illegal, null and void supersedes the claim of the Assembly that they were not carried along in the constitution of the caretaker for the councils.
The Assembly at a rowdy session also passed a resolution stopping any of the newly inaugurated caretaker committee members from touching the tax payers' money or any of the allocation of the 18 local government areas of the state. Arguing from a legal point of view, the Attorney General and Commissioner for Justice, Mr. Eyitayo Jegede, SAN, said the resolution of the Assembly directing withholding of funds due to the Local Government in Ondo State will certainly not find comfort with the provisions of the Constitution. According to him, the funds due to the Local Governments "are constitutional and dedicated funds and cannot be interfered with by any person or authority and certainly not by a resolution of a House of Assembly."
He cited the case of the Attorney-General, Lagos Vs the .Attorney General of the Federation as contained in the recent decision of the Supreme Court which he noted has clearly settled the matter thus: "The Federal Government cannot withhold constitutional and dedicated funds due to the third-tier of Government, even at the instigation of any institution of Government.
"May we take the liberty of quote the decision of the Supreme Court in the case of Attorney-General, Lagos V Attorney General of Federation (2004) 18 NWLR PT 904 page 1 at page 29 and pages 91 paragraphs E-H, page 92 paragraphs A & B wherein their Lordships unequivocally resolved, the question as follows:
"The President of Nigeria has no power vested in him (by executive or administrative action) to suspend or withhold for any period whatsoever the statutory allocation due or payable to Lagos State Government pursuant to the provision of section 165(5) of 1999 Constitution"
Mimiko it would be recalled, had ordered the dissolution and freezing of the accounts of the 18 local government councils in the state as soon as he was sworn-in as governor of the state following his victory at the Court of Appeal in Benin-City, Edo State last February. He hinged his action on the flagrant disobedience of court order by the administration of former Governor Olusegun Agagu, whose administration conducted the council elections on December 15, 2007, in defiance of a court order.
The news then was that Agagu disobeyed the court order because he desperately wanted the local councils to be manned by his party, the Peoples Democratic Party (PDP) should there be an order for a re-run election in the state by tribunal and the Court of Appeal following Mimiko's challenge of his victory on April 14, 2007.
However, as soon as the councils were dissolved, it sparked controversy with members of the state House of Assembly, which dominated by the PDP, described the governor's action as "a gross misconduct, unconstitutional, null and void". Addressing newsmen in Akure, the lawmakers represented by four of the 25 members said "it was not too early for us to impeach the governor because he has started wrongly by usurping our constitutional rights. Their spokesman, Hon Kele Bolodeoku, declared that "the Ondo State House of Assembly would not condone or accept any act of arbitrary use of power on the part of the new governor.
Bolodeoku, who is the Chairman House Committee on Information, Orientation and Mobilization said Section 12 (4) of the Ondo State Local Government Amendment Law (2007) allows a council to be dissolved upon a sanction by two-thirds majority of the members of the state House of Assembly. The governor, he said never sought the mandatory legislative approval before he took the action.
According to him, "We would not accept action not based on due process and the respect of law. The freezing of the local government accounts is within the power of the House and not the governor. It is an affront on House of Assembly, we would not witch hunt the new governor, we would not stop him from progressing or the state from making progress. We want to say that it is too early to start on a note of confrontation. The House of Assembly is in charge of the affairs of the local government; the freezing of its account is an act we regard as not right and an abuse of power by the governor."
At an earlier stage of the face-off, a new twist was added to the saga when citing an order from the Presidency, the 18 local council chairmen and their councillors defied the dissolution order and resumed duties at the council secretariats accompanied by armed policemen following a directive from the Presidency they should return to work.
President Umaru Musa Yar'Adua, it was alleged, had after listening to the complaints of the leadership of the Ondo PDP, who saw the dissolution as the death knell for the party in the state, ordered the immediate reinstatement of the chairmen. The President was said to have been piqued by the alleged illegality of the dissolution that he directed that the council chairmen be reinstated until after all the legal tussles were resolved or the governor sought and secured the required two-thirds majority needed in the House of Assembly to comply with the constitutional requirements of council dissolution.
The embattled officials also rushed to the Federal High Court, alleging that he (the governor) unilaterally dissolved the local government without any recourse to provisions of the 1999 Constitution. They therefore asked the court to say "whether under and virtue of Section 7 of the 1999 Constitution and Section 12 (4) of the Local Government (Amendment) Law, 2007, the governor can unilaterally and without acting on the resolution and supported by the two-third majority of the state House of Assembly dissolve any or all of the local government councils presided over by the first to 18th plaintiffs. Or "whether the act of unilateral dissolution of the 18 local government councils in Ondo State legally presided over by the two-third majority of the Ondo State House of Assembly dissolve any or all of the local government councils in Ondo State presided over by the 1st to 18 Plaintiffs".
In the originating summon deposed to by the embattled chairmen they sought among other things, "a declaration that the purported dissolution of the 18 local government councils was unconstitutional, unlawful, illegal, invalid, null, void and of no legal consequence".They also urged the court to set aside the purported dissolution.
While the matter was pending, Governor Mimiko approached an Akure High Court to ask it to restrain the council officials from parading themselves as "chairmen of local government councils in the state." He also sought for an order barring them from doing anything capable of disrupting the smooth running and administration of the various councils pending the determination of the court action.
In the counter-claim to the originating summons of the council bosses, Mimiko averred that he did not need to have any resolution of the state House of Assembly before taking action as the Executive Governor of the state with respect to the administration of local government councils. He averred that the plaintiffs - former council chairmen - were never duly or legitimately elected as chairmen of the local government councils in the state and as such could not lay claim to have at whatever time legally presided over the said local government councils.
He argued the purported elections of the plaintiffs as chairmen of local government councils in the state were null and void and of no effect whatsoever. He, therefore, sought a declaration that having regard to the expediencies and circumstances on ground on the assumption of office as Executive Governor of the state, he was justified and entitled to take the step in respect to the administration of local government councils.
While moving a motion for the interlocutory application to restrain the chairmen from taking any step towards take-over of the council secretariats by forcefully, Baiyeshea said their actions, if permitted, were capable of disrupting the smooth running and administration of the councils pending the final hearing of the substantial suit.
Mimiko's counsel added that there was no evidence that local government workers were instigated by the state government and that there was no place in their affidavit that they have been functioning in their offices since the dissolution of the councils. Baiyeshea argued that "the balance of conveniences favour the plaintiffs in view of the fact that the workers have stayed away since their action and we cannot sacrifice all the 18 local governments for just 18 persons who stand to be compensated for any damage if the case goes in their favour. My Lord, we have entered into an undertaking if at the end of the day, they are favoured."
While Mimiko, the council officials and their party, the PDP were trading blames on the legality or illegality of the dissolution of the councils, a school of thought was of the opinion that the governor's action was not in order because "two wrongs do not make a right." It contended that he should have gone to court to challenge the legality of the election and the composition of the ODIEC members or better still seek the mandatory legislative approval of the House before swinging into action to dissolve the councils. However, the governor may not have taken this option because he knew he would not get the required two-third to sack the councils in the PDP-dominated House because his party does not have the majority in the house unlike predecessor.
Currently, the governor's party, Labour Party (LP) has nine lawmakers in the House. Alliance for Democracy (AD) has one member while the PDP has 15 members. Moreover, the governor may have to wait for the five years of the present ODIEC to lapse, or better still, wait for the Court of Appeal hearing cases of some of the members of the assembly.
Meanwhile, normal activities have resumed in some local government secretariats as some of the caretaker chairmen have sworn in their members. However, some chairmen had not resumed due to the internal crisis involving some Labour Party members over the choice of some people. At the Ilesha Road Headquarters of the Akure South Local Government, there was no presence of security agents in the premises contrary to the directive of the Assembly on Wednesday that police should arrest anybody that came to resume as the chairman. At the Akoko North West Local Government, Oke-Agbe, the Caretaker Chairman, Hon Tope Adebambo had resumed office and swore in other members of the committee.
There was no reported case of breakdown of law in any council as at the time of filling this report. Some observers have said that the current face-off between the two arms of government was normal in a democratic setting pointing out that politicians always have ways of resolving their differences. Whatever be the case, events this week in the state will show who would bait first between the governor and the lawmakers.
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