George I. U. Obayuwana V. Governor, Bendel State & Anor (1982)

LawGlobal-Hub Lead Judgment Report

C. IDIGBE, J.S.C.

The issues which bring the parties herein to the courts below and now to this court are whether,

(a) the Customary Courts (Revocation of Appointments of Presidents and Members) Order 1979 published as B.S.L.N. 1 of 1980 (hereinafter referred to as “Revocation Order”) purporting to revoke the appointment of the appellant as a member of Oredo Grade II Customary Court No. 1 in Oredo Local Government Area of Bendel State of Nigeria and to remove the plaintiff from office as a member of the said Customary Court is lawful, constitutional and valid and

(b) the appellant is still a member of the Customary Court aforesaid and entitled to his normal salaries and/or benefits

The issues arose in this way: Following a publication in the Nigerian Observer of the 10th day of July, 1978, calling for applications for the positions of Presidents and members of the customary courts in Bendel State, the appellant who applied for the post of a member of customary court having been found suitable after the necessary interview was offered appointment on a contract for one year, as a customary court member for Oredo Customary Court on a salary of N2040 per annum. By a letter (Exhibit ‘D’) dated 27th September, 1978, addressed to him by the appropriate authority (the Interim Customary Courts Judicial Service Committee) his contract of appointment was effective from the 25th day of September, 1978, and by Exhibit ‘C’ he accepted the said offer of appointment and was duly sworn in soon after as a customary court member.

His contract of service was renewed for eighteen months with effect from 26th September, 1979; by this renewal, the appellant’s contract of service was to have expired on 25th March, 1981. It should be observed, at this stage, that this contract was executed during the era and administration of the government of Bendel State by the military regime. On the first of October, 1979, the current civilian government took over from the military regime the administration of Bendel State and the first respondent, Professor Ambrose Alli, became the civilian Governor of the State.

By the Revocation Order published by Legal Notice of the 15th day of January, 1980, in the State Extraordinary Gazette No. 3 Volume 17 of 15th January, 1980, the first respondent in his capacity as Governor of the State revoked the appointments of Presidents and Members of customary courts in the State with effect from 15th January, 1980. This was followed by the publication in another State Extraordinary Gazette No. 6 Volume 17 of the 22nd January, 1980, of Customary Courts (Cancellation of Warrants) Order, 1980 (hereinafter referred to as the “Courts Cancellation Order”); by this Order the first respondent, again, in his capacity as Governor of the State cancelled the warrants of all customary courts in Bendel State with effect from 22nd January, 1980. After the appellant had on 1st February, 1980, filed this action challenging the validity of the Revocation Order, the Bendel State House of Assembly passed a law, the Customary Courts (Abolition) Law No. 10 of 1980 (hereinafter called “the Courts (Abolition) Law”), assented to by the Governor on the 18th day of April, 1980, abolishing all customary courts in the State.

In the High Court, it was contended on behalf of the appellant that both orders (i.e. the Revocation Order and the Courts Cancellation Order) were each unconstitutional, null and void since the Governor has no power under the Constitution of the Federal Republic of Nigeria (1979) (hereinafter referred to as “the 1979 Constitution”) or any other law to revoke the appointments of the Presidents and customary courts Members. It was further contended that sub-section (6) of Section 3 of the Customary Courts Edict, 1978 No. 9 of 1978 (hereinafter referred to as “Edict No.9 of 1978”) by virtue of which the Governor purported to have cancelled the warrants of the courts in the Courts Cancellation Order is inconsistent with sub-section 4(d) of Section 6 of the 1979 Constitution which now reserves in the State’s Legislature (i.e the State’s House of Assembly) the power of abolition of customary courts. It was, therefore, submitted that to the extent that the Courts Cancellation Order was intended to abolish customary courts in the State, that Order is ineffective being unconstitutional, null and void. As regards the Courts (Abolition) Law, learned counsel for the appellant submitted that the Law is unconstitutional as it was not made “in conformity with Section 6(4) (b)” of the 1979 Constitution since it did not carry ex facie any indication that the State House of Assembly “no longer require customary courts in the State.”

On behalf of the respondents the submission was to the effect that (1) the Governor was empowered by Sections 162(2) and 275(4) of the 1979 Constitution to remove from office, inter alia, members of the customary courts; and (2) the Courts Cancellation Order effectively abolished customary courts. Consequently the Revocation Order, having been validly made and effective, the appellant’s contract of service was lawfully terminated with effect from the date of the Courts Cancellation Order. In any event, the Courts (Abolition) Law having abolished the court to which the appellant was assigned, his contract of employment became frustrated by operation of law; and the decision of Reilly v. The King (1934) AC 76 was cited by learned counsel for the respondents in aid of this latter contention.

The learned trial Judge, (Uwaifo, J.), upheld the principal contentions on behalf of the appellant. In his view, Section 162(2) of the 1979 Constitution did not confer any power on the first respondent qua Governor of the State for removal from office of members of customary courts; further, it was his view that as from the 1st October, 1979, the date on which the 1979 Constitution came into force, it is only the State Judicial Service Commission that has the power “to appoint, dismiss and exercise disciplinary control” over customary courts members by virtue of the provisions of paragraph 9(d) of Part II of the Third Schedule to the 1979 Constitution. Accordingly, he (the learned judge) held that the first respondent qua Governor of Bendel State acted unconstitutionally when he issued the Revocation Order. As regards the Courts Cancellation Order the sections of both the Constitution and the Customary Courts Edict 1978: Edict No.9 of 1978 (hereinafter referred to simply as “Edict No.9 of 1978”) – i.e. Sections 275(4) of the 1979 Constitution and 3(6) of Edict No.9 of 1979 – under which the first respondent issued the said Order, the learned trial Judge was of the view that the sections aforesaid were not available to the Governor for the exercise; in his view, the cancellation of the warrants of the courts, indeed, amounts to the “abolition” of the courts concerned. According to the learned trial Judge Section 3(6) of Edict No. 9 of 1978 “can only be read with due regard to…..Section 6(4) (b) of the Constitution (i.e. the 1979 Constitution) or else both will conflict and the former shall be invalid to the extent of the conflict” (brackets supplied by me). He (the learned Judge), therefore, had no difficulty in holding that the Courts Cancellation Order is invalid and is, indeed, unconstitutional. The learned judge however found himself unable to accept the submission on behalf of the appellant with regard to the Courts (Abolition) Law. It was, in his view, unnecessary for the of the said Law to indicate ex facie (as was contended before him) that the State House of Assembly was abolishing customary courts because “the Assembly no longer requires” them; all that is necessary to give validity to that Law is that it must be passed in accordance with the procedure laid down in the 1979 Constitution for enactment of legislations by the State House of Assembly. In support of this view, the learned Judge adopted a passage in the judgment of Isaacs, J., in James v. Cowan 43 CLR at 409 which states that “it must be presumed that a legislative body intends that which is the necessary effect of its enactment …..” Consequently, he (the learned Judge) held that the Courts (Abolition) Law effectively abolished customary courts in Bendel State with effect from April 1st, 1980; and that that Law, in his view, effectively determined the appellant’s appointment which, by the renewal of the contract of service, in September, 1979, was intended to continue to have effect until March, 1981.

In the circumstances, the learned trial Judge on the 24th day of June, 1980, granted the prayer in the first limb of the appellant’s claim; and as regards the second limb he declared that the appellant “remained a member of the (Customary Court) up to 31st March, 1980, the eve of the Customary Courts Abolition Law, 1980, and he is entitled to his salary/or benefits up to that date.”

Aggrieved by the above decision the respondents appealed from the said decision to the Federal Court of Appeal (hereinafter called “the Court of Appeal”) which on 16th December, 1981, reversed the decision of Uwaifo, J. In the lead judgment of Omo Eboh, JCA., (in which Ete, Agbaje, Okagbue and Kutigi, JJCA., concurred), it was stated that the first respondent as Governor was by virtue of Section 275(4) of the Constitution “together with Section 3(6) of the Customary Courts Edict, 1978” empowered to cancel the warrants of the customary courts. Further, the Court of Appeal disagreed with the view of the learned trial Judge that it is only the State House of Assembly (NOT the Governor) which has power to abolish customary courts. In the course of his judgment Omo Eboh, JCA., citing with approval a previous decision of the Court of Appeal (in FCA/B/99/80: Chief Oteri and Ors. v. Awinawhi and Ors.) in which the court had considered the scope of Section 275(4) of the 1979 Constitution observed:

“So in this case, I am satisfied that the proper interpretation to be put on Section 275(4) is that which was decided and applied in Suit No. FCA/B/99/80 – Oteri’s Case (supra) to wit, that the powers conferred on a Governor of a State under Section 275(4) is (sic: but read, are) very wide and that he is thereby authorised to establish or abolish any office, court of law, or authority within the State or to remove a person therefrom if there is a constitutional provision or “a law” – both of which must be outside or independent of the said Section 275(4) of the Constitution [of] 1979 – which must authorise the act which the Governor purported to do under the said Section 275(4) of the Constitution. I hold that what readily comes to mind (and in fact which is obvious in B.S.L.N.2 of 1980 as reproduced above) under “a law” of [sic] “such law” in the con of Section 275(4) as regard [sic] the case in hand is the Customary Courts Edict No.9 of 1978 which as I showed and held earlier on, is an existing law under Section 274(1) (b) of the present Constitution.

The relevant section of the law (Customary Courts Edict 1978) is Section 3(6) which empowers the Governors ‘… at any time after consultation with the Committee to suspend, vary or cancel any warrant issued in pursuance of this section.’ In the order, it was stated that the Governor in cancelling the warrants …. acted under Section 275(4) of the Constitution, 1979, and Section 3(6) of the Customary Courts Edict, 1978, after consultation with Bendel State Judicial Service Commission.