What gave rise to this suit was the demolition by the 1st and 2nd respondents herein of a structure the appellant had erected on a piece of land. The respondent had done the act complained of in their capacity as chairman and Secretary respectively of Obowo Local Government, created out of Etiti Local Government in 1981 by the Imo State Government.
Pleadings were ordered, filed, exchange, and amended. Evidence was however not taken the plaintiff having decided to submit some issues for the court's consideration and decision based on the facts in pleading on which there was no dispute. These facts were as follows: In 1981 The Imo State Government established the Obowo Local Government by carving same out of the existing Etiti Local Government. The 1st respondent was appointed the chairman of the newly created Local Government and the 2nd respondent as the secretary.
The appellant put up a structure on a piece of land that the 1st and 2nd respondent felt belonged to the local Government. They, acting as chairman and secretary of the Local, took action which they felt their duty as chairman and secretary called foe in order to protect property of the Local Government. What they did was to demolish the structure put by the appellant.
The issues submitted to the court below by the appellant were as follows:
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1.
Whether Obowo Local Government Council was a legal entity known to the law of this country; vide the constitution.
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2.
Whether Obowo Local Government Area was non-existence, the act of 1st and 2nd defendant is destroying the property in question is defensible or justified in law.
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3.
An order of perpetual injunction restraining the Defendant from trespassing into the said plot.
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4.
Whether Etiti Local Government council can ratify the act of alleged Obowo Local Government council under the constitution or any existing Decree
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5.
Whether the act of the alleged Obowo Local Government council which was done when in law Obowo Local Government Council did not exist can be ratified by a subsequently legally created Obowo Local Government.
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6.
Whether a state counsel can be defend the 1st and 2nd defendant where they are sued in their personal capacity for an act they the (1st and 2nd defendant) were incompetent to perform under the law.
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7.
Can the High Court of this State adjudicate on the creation of new Local Government Area by the governor or the State Governor.
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The learned judge heard argument from the counsel on the issues and delivered his decision thereon. He agreed with the appellant that the Imo State Government lacked the constitutional competence to create the Obowo Local Government. He agreed also that the creation exercise was, therefore, a nullity. He however rejected the contention of the appellant that because of the fact that the Obowo Local Government could not be regarded as having existed in fact and that therefore the 1st and 2nd respondent could not rely on their being in service of such non-existent Local Government to claim to be public officers and to claim protection as such officers for their act complained of.
