By Olukayode Majekodunmi
In a landmark judgment that sent seismic waves through Nigeria’s political landscape, the Supreme Court recently affirmed the financial and administrative autonomy of the nation’s 774 local government areas. The case, Attorney-General of the Federation v. Attorney-General of Abia State & 35 Ors., was widely celebrated as a decisive victory for constitutionalism and the third tier of government. The court’s unanimous dismissal of the states’ objections and its core holdings were clear. However, a closer reading reveals a crucial nuance: the partial dissent of Justice Habeeb Abiru.
While the headlines proclaimed a unanimous victory, Justice Abiru’s judgment serves as a masterclass in judicial precision, reminding us that in law, the devil is often in the details. His Lordship agreed with the majority on the fundamental principles but diverged on the scope of the reliefs granted, offering a more restrained view of the judicial role in remedying constitutional breaches.
A jurist of method, restraint
Justice Habeeb Abiru, elevated to the Supreme Court in 2023, has built a reputation as a jurist of discipline, detail, and intellectual restraint. Prior to his elevation, he served with distinction at the Court of Appeal, where he delivered several notable judgments in constitutional and commercial law. His background also includes years as a High Court judge in Lagos State, where he became known for his emphasis on strict adherence to statutory interpretation and judicial modesty.
This professional trajectory helps explain his stance in the local government autonomy case. Justice Abiru’s philosophy is shaped by a consistent preference for judicial boundaries — ensuring that courts interpret and enforce the law without encroaching on legislative or executive domains. His partial dissent in this case is not an anomaly but part of a broader pattern of jurisprudence marked by caution, precision, and a refusal to indulge in judicial overreach.
Unwavering support for democratic governance
Before examining the dissent, it is critical to note that Justice Abiru stood shoulder-to-shoulder with his brethren on the core constitutional issues. He unequivocally held that: State Governments have a mandatory duty to ensure a system of democratically elected local government councils, as guaranteed by Section 7(1) of the 1999 Constitution: “The system of local government by democratically elected local government councils is under this Constitution guaranteed…”
• Dissolving these councils and replacing them with Caretaker Committees, Transition Committees, or Administrators is “unlawful and unconstitutional and amounts to gross misconduct.”
• The reasons advanced by states for such actions were “not tenable” and sanctioning them would open the door to “constitutional aberrations” at all tiers of government.
On these principles, there was no disagreement. The rift emerged not in the diagnosis of the constitutional illness, but in the prescription of the judicial cure.
Judicial restraint and limits of power
The Federal Government’s originating summons contained 27 specific prayers. The majority granted most of them, including sweeping orders compelling direct payment from the Federation Account to LG accounts and restraining state governments from any interference with LG funds. Justice Abiru, however, took a more circumspect approach. He declined to grant prayers 9, 10, 12, 14, 15, and 17. His reasoning was rooted in a strict interpretation of the judicial function and the specific nature of the suit filed.
‘No democratically elected council’ conundrum
One of the plaintiff’s key prayers was that a state in breach of Section 7 (for not having elected councils) should not be entitled to receive LG allocations from the Federation Account under Section 162(5), which provides that “the amount standing to the credit of local government councils in the Federation Account shall also be allocated to the States for the benefit of their local government councils…”
The majority’s decision effectively supported bypassing states in breach and enabling direct payments. Justice Abiru however, viewed this as problematic. He argued that such a ruling would create a “self-imposed impossibility.”
A state that fails in its duty to conduct elections cannot then use that failure (the absence of an elected council) as a justification to bypass the constitutional channel for funding (the State Joint Local Government Account), only to have the funds sent elsewhere. He powerfully invoked the maxim that “a person cannot take advantage of his own default.” In other words, a state should not profit from its own wrongdoing. For him, the solution was not for the federation to bypass the state but to compel the state to fulfill its duty.
Specificity of reliefs sought
Justice Abiru emphasized that the suit was not filed as public interest litigation or an advisory opinion. It was a specific action between specific parties. Some of the prayers, in his view, were too broad and abstract. For instance, granting a blanket order that officials who dissolve councils are liable for criminal offences might be seen as pre-empting future criminal proceedings which require specific charges, evidence, and due process.
His approach was to stick closely to what was directly necessary to resolve the immediate constitutional disputes presented, avoiding declarations that could be seen as judicial overreach.
Purposive interpretation vs. judicial restraint
The majority, led in reasoning by Justices Agim and Adumein, employed a robustly purposive interpretation of the Constitution. Faced with decades of brazen defiance by state governments, they crafted a remedy—direct payment—that was pragmatic, effective, and designed to break the cycle of abuse. They interpreted the word “shall” in Section 162(5) as directory, not mandatory, to achieve justice.
Justice Abiru, while equally desiring a just outcome, leaned toward judicial restraint. His method was to first find the correct constitutional principle (which he did) and then craft reliefs that flowed directly from those principles without venturing into what might be perceived as legislative or administrative territory. His concern appeared to be maintaining the strict boundaries of the judiciary’s role, even in the face of extreme provocation from the other arms of government.
This divide mirrors classic tensions in constitutional adjudication worldwide: between judges who prioritize fidelity to text and procedural propriety, and those who interpret the law purposively to meet urgent political realities.
Historical continuity, practical implications
This case is not without precedent. In Attorney-General of Lagos State v. Attorney-General of the Federation (2004) 18 NWLR (Pt. 904) 1, the Court held that states must maintain a State Joint Local Government Account and that LG funds cannot be diverted. Yet enforcement remained elusive, as states found ways to undermine LG autonomy.
The present decision goes further, but Justice Abiru’s restraint highlights a looming practical issue: how will enforcement work in reality? If states refuse compliance, the federal government must devise mechanisms to ensure that funds reach LG councils, which could spark fresh federal–state tensions. His dissent may, in hindsight, prove prescient in foreseeing implementation hurdles.
Necessary nuance in a historic judgment
Justice Abiru’s partial dissent is not a rejection of local government autonomy. It is far from it. It is an affirmation of it through a different judicial lens. While the majority delivered a hammer blow to state-level impunity with a pragmatic solution, Justice Abiru provided a concurring opinion that underscores the importance of methodological purity and restraint in constitutional adjudication.
His judgment acts as a vital counterweight, ensuring that the euphoria of a landmark victory does not obscure the delicate balance of powers or the precise language of the law. It reminds us that the path to justice is not always a single road but can have multiple lanes, all converging on the same destination: the preservation of Nigeria’s constitutional democracy.
Whether Justice Abiru’s restrained path or the majority’s activist stance proves more sustainable will ultimately depend on the political will of both federal and state actors to respect the Court’s pronouncement in practice.
Olukayode Majekodunmi is a lawyer qualified in Nigeria and Ontario, Canada. He holds an LL.B (Hons.), BL, and dual LL.M degrees from the University of Notre Dame and York University.
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