Osun LG: Interrogating The Question On Jurisdiction At The Supreme Court -By Sarafa Ibrahim

I have followed with keen interest reports on the suit filed by the Osun State Attorney-General against the Attorney-General of the Federation before the Supreme Court and a few issues caught up my interest, which I set out to interrogate here. In the reports by various media platforms, it was pointed out that the AGF lawyer, Mr. Akin Olujimi, SAN, raised soke preliminary objection to the suit, central of which is that jurisdiction of the Supreme Court.

He was said to have argued that the dispute before the court was between two political parties and ought not to have come before the Supreme Court. And again, he was said to have raised the issue of abuse of court processes as a ground for the suit to be dismissed.

Let’s start with the argument on who are the parties to the dispute. Contrary to the picture that the AGF tried to paint, the dispute before the court is not between two political parties but to seek the Supreme Court interpretation on the power of the AGF. The AGF office was created by Section 150 of the 1999 Constitution (as amended) and its powers and limitations lies with that provision of the law.

It however remain to be seen where in that constitutional provision did the AGF draw the power to order the withholding or suspension of allocations to local governments in Osun state from the Federation Account and that is what the Osun Attorney-General seeks the intervention of Supreme Court upon. Section 162(6) of the 1999 Constitution (as amended) clearly spelt out how allocations should be paid to local governments and it never envisaged nor give power to anyone, including the AGF, to order the suspension of it to any tiers of government.

When similar issue came before the Supreme Court in 2004 in Lagos AG vs AG-Federation after President Olusegun Obasanjo instructed the Ministry of Finance to suspend allocations to local governments in the state, the apex court plainly declared the move as unconstitutional as neither the President nor any agent of the Federal Government has the authority to unilaterally suspend allocations to any tiers of government.

The Supreme Court held that “Our attention has not been drawn to any other provision of the constitution which empowers the President to exercise the power of withholding or suspending any payment of allocation from the Federation Account to Local Government Council or to State Government on behalf of the Local Government Councils as provided by Section 162 subsections (3) and (5) of the Constitution.” The apex court pointed out legal steps provided by the Constitution for the Federal Government to explore should there be any concern on allocation disbursement, which is the court of law, but unfortunately, the AGF acted outside this clear judicial pronouncement to unilaterally order the suspension of allocations to local governments in Osun state without court order.

So, the question before the Supreme Court will be to determine whether the AGF has such power and rights under the Constitution. That clearly invokes the original jurisdiction of the Supreme Court.

Even more, the apex court will have to answer whether the AGF has power under the Constitution to cherry-pick judgements based on interest as was obviously conveyed in his letter to the Accountant-General of the Federation instructing payment of withheld allocation to APC officials despite the existence of a valid judgement of a federal high court and the appeal court which had sacked them. It is a public knowledge that the Federal High Court in suit no: FHC/OS/CS/103/2022 filed by the Action Peoples Party (APP) invalidated the October 15, 2022 local governments election and sacked beneficiaries of the election.

That verdict was unimpeached as an appeal filed against it was dismissed by the Court of Appeal sitting in Akure on January 13, 2025. Another attempt to revive the dismissed appeal failed as the Court of Appeal in Akure on June 13, 2025 rejected the application and went ahead to validate the February 22, 2025 local governments election ordered by the court to fill vacancies created by the sack of the YES or NO officials by the court. In the lead judgement of the appellate court, Justice Chudi Obiora held that “Of course, the dismissal of the appeal means that there being no existing appeal against the judgment of the lower court, the said judgment stands as the authority defining the state of affairs as it regards the status of the officers of the various Local Government Councils in Osun State.”

Yet, the supposed chief law officers of the country feigned unaware of the judicial decisions on the matter even though he was severally availed the the judgements on different occasions. What is not in doubt is that the AGF has taken side, which obviously was not what the constitution envisaged in creating that office. This portend a dispute and that explains the decision of the Osun AG to approach the Supreme Court for intervention.

In Lagos AG vs AG-Federation, 2004, the Supreme Court held that “In the light of the foregoing, on close examination of the reliefs sought in the counterclaim, it will be seen that reliefs Nos. 1, 2,3,4, 5 and 6 are all akin to the payment of funds by the defendants from the Federation Account to the new local government councils created by Law No. 5 of 2002. For which there is real controversy between the parties since the plaintiff’s originating summons is also based on the payment of funds due to the local government councils in Lagos State. Similarly, reliefs Nos. 7 and 8 concern the elections held into the new Local Government Councils created by Law No. 5 of 2002 which has been mentioned in the letter by the President to the Minister of Finance which is the source of the controversy in this case. Relief No. 9 touches on the creation of the new Local Government Areas created by Act No. 5 of 2002.

“On the whole I am of the view that all the reliefs sough in the counter claim touch on the constitutional responsibility of the defendants as perceived by the President. Therefore the dispute between the parties, in my opinion, involves question, of law on which the extent of the constitutional (i.e. legal) rights of both the plaintiff and the defendant depend. I, therefore, hold that there is a proper dispute under section 232 sub-section (1) of the 1999 Constitution between the parties and this court has the jurisdiction to determine the dispute. Besides, it is a general principle of law that the court will not readily deny itself jurisdiction unless the jurisdiction is expressly ousted by legislation. Again a counter-claim can properly be raised by a defendant when the counter-claim is directly related to the principal claim – see Nigerian Ports Authority v Construzioni General Farsura Cogefar SpA & Anor., (1972) 12 S.C. 81 at pp.94 – 98.”

Also in the case of A-G of Bendel State V A-G of the Federation & Ors (1981) 12 NSCC 314 at p. 395 lines 4-223, Eso JSC observed that “It is the primary aim of this court to do substantial justice, and this should indeed, be more pronounced in constitutional matters… The jurisdiction conferred upon the Supreme Court in regard to the interpretation and adjudication on the constitution is a special jurisdiction. The court cannot justify its usefulness in regard to this peculiar jurisdiction, by being inhibited with technicalities. Such inhibition will only serve to destroy the entire constitutional purpose of this court.”

What the Osun AG put before the Supreme Court is purely a constitutional matter and its determination, just as was done in the Lagos State matter over a decade ago, will strengthen our constitutional democracy, by curbing unconstitutional abuse of power. The Osun AG is challenging the illegal and unlawful interference of the AGF in Osun local government administration by issuing directive without any legal basis, particularly the ridiculous request that funds belonging to the councils be paid to a set of politicians even when courts of competent jurisdiction had sacked them.

It is important to point out that when the question of trustee for local government came up in the Lagos AG vs AG-Federation in 2004, the Supreme Court aptly held that states and not the FG, are the trustees of LGs. If the Court fails to pronounce on the power of the AGF to unilaterally withhold, suspend allocations, and acting outside judicial pronouncements, to choose who to release public fund to, we may encounter a scenario in the future when the AGF will just order suspension of allocations to state(s) or LG(s) just because he doesn’t like the face of the governor or chairman.

This is more reason why the Supreme Court should turndown the plot to explore technicalities and do substantial justice by pronouncing on the limit of the power of the AGF. If the Supreme Court had established a locus for the AGF to challenge the States over what is considered as unlawful interference with local government funds in the popular Supreme Court autonomy decision, how much more the locus of the Attorney-General of a State in the event of obvious interference of the AGF in the affairs of the local government in a State.

In a letter jointly signed by its President and General Secretary, Mazi Afam Osigwe, SAN, and Mobolaji Ojibara respectively, the Nigeria Bar Association (NBA) expressed deep concerns at the “dangerous precedent” that the unfolding development in Osun state portend and insist on the adherence to judicial pronouncements and the rule of laws. “It is the considered view of the NBA, supported by the correct interpretation of the relevant judgements of the Court of Appeal, that the only valid and legitimate officials who can legally occupy the elective offices in the LGAs in Osun State are those of the PDP. They are, therefore legitimately entitled to the release of the funds meant for their respective councils,” the NBA noted in a letter addressed to the AGF.

• Sarafa Ibrahim writes from Osogbo, Osun state.