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

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.

So the Governor had complied with the law in this case unlike his failure so to do in the case of Oteri (supra). So the Governor had the power and acted correctly in cancelling the warrants as he did.

Although the learned trial Judge may be correct to say that the Judicial Service Commission is the proper body to appoint, discipline, or remove a customary court member, he was certainly wrong to say that the Governor had no power to cancel the warrants of customary courts or that ‘he acted ultra vires and unconstitutionally by his Order B.S.L.N.2 of 1980’ for the reasons I have given above. The appeal succeeds on these grounds alone” (Square brackets together with contents and underlining supplied by me).

It is unnecessary, in my view, to set out in detail the grounds of appeal to this court filed on behalf of the appellant for I have already given the sum of the grounds in the first sentence in this judgment; however, if and where necessary, in order to elucidate the view subsequently expressed in this judgment a precis of the precise ground of appeal under consideration (or, if desirable, details thereof) will be given. However, with great respect to the Court of Appeal, much of the reasoning in the passage set out from the lead judgment – and with which the two other learned justices concurred apparently without any reservation – appear to me to be inaccurate in substantial and considerable aspects thereof; for although the court as it appears to me, took the correct view of sub-section (4) of Section 275 of the 1979 Constitution in that part of the passage aforesaid against which I endorsed in capital the letter ‘A’, yet in its application of the view it took of the section it erred considerably because of the palpably inaccurate stance it took in respect of its interpretation of Section 3(6) of Edict No.9 of 1978 (see the portions of the passage aforesaid against which I have endorsed in capital the letters ‘C’ ‘D’ and ‘E’). Before proceeding further, there is, in my view, need to set out in details some of the sections of the 1979 Constitution and other relevant law to which references were made in the lower courts and will be made in this judgment; these are Sections 6(4) (a), 6(4) (b), 6(5), 178(1), 178(2), 274(1), 274(1)(b), 274(2), 274(3), 274(4) (b), 275(1), 275(2), 275(4), 276(1) (b) and 276(2) of the 1979 Constitution as well as paragraph 9(d) of Head D in Part II of the Third Schedule thereof, and Sections 3(1), and 6 of the Customary Courts Edict 1978: No.9 of 1978. I now set out these sections:-

“6(4)(a) Nothing in the foregoing sections shall be construed as precluding –

(a) any House of Assembly from establishing courts other than those to which this section relates with subordinate jurisdiction to that of a High Court;

(b) any House of Assembly, which does not require it, from abolishing any court established under paragraph (a) of this sub-section or to which sub-sections 5(e) and (f) of this section relates” (underlining by me).

“6(5) This section relates to –

(a) the Supreme Court of Nigeria

(b) the Federal Court of Appeal

(c) the Federal High Court

(d) the High Court of a State

(e) a Sharia Court of Appeal of a State

(f) a Customary Court of Appeal of a State

(g) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and

(h) such other courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.”

“178(1) There shall be established for each State of the Federation the following bodies namely –

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(d) State Judicial Service Commission.”

“178(2) The composition and powers of each body established by sub-section (1) of this section are as set out in Part II of the Third Schedule to this Constitution.”

“274(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –

(a) xx xx xx xx

(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”

“274(4)(b) ‘existing law’ means any law and includes any rule of law or any enactment whatsoever which is in force after that date…………………………………….”

“275(1) Any office, court of law or authority which immediately before the date when this section comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with a law made thereunder.

275(2) Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.

275(4) The foregoing provisions of this section are without prejudice to the exercise of such powers as may be conferred by virtue of this Constitution or a law upon any authority or person to make provision with respect to such matters as may be prescribed or authorised by this Constitution or such law, including the establishment and abolition of offices, courts of law or authorities, and with respect to the appointment of persons to hold offices or to be members of courts of law or authorities and their removal from such offices, courts of law or authorities.”

“276(1) Without prejudice to the generality of Section 274 of this Constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against –

(a) xx xx xx xx

(b) any former authority of a State as representative or trustee for the benefit of the State,

shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by … the Governor and Government of the State….” (underlining by me).

“276(2) For the purpose of this section –

(a) the President and Government of the Federation, and the Governor and Government of a State shall be deemed, respectively, to be successors to the said former authority of the Federation and the former authority of the State in question ……………”

(Underlining by me).

Section 9 – Head D – Part II. Third Schedule

“9 The Commission [i.e. the State Judicial Commission] shall have power subject to such conditions as may be prescribed –

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(d) to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Courts of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts”

(Square brackets and underlining by me).

Customary Courts Edict 1978

“(2) In this Edict, unless the con otherwise requires –

xx xx xx xx

‘Committee’ means the Interim Customary Courts Judicial Service Committee established under Section 5 of this Edict.

3(1) The Military Governor may after consultation with the Committee suspend, or cancel warrant issued in pursuance of this Section.

(6) Power to appoint persons to hold or act in the office of customary court judge of any grade, including power to make appointments or promotion, and transfer and to confirm appointments and to dismiss and exercise other disciplinary control over persons holding or acting in such offices shall vest in the Committee.”

(Underlining by me.)

Now, the Court of Appeal took the view that:

(1) the first respondent (the Governor of Bendel State) has by virtue of Section 275(4) of the 1979 Constitution and Section 3(6) of Edict No. 9 of 1978 the power to cancel the warrants of the customary courts.

(2) the learned trial Judge was wrong in the view he took of the matter i.e. that it was only the State House of Assembly which has the power under the Constitution to abolish customary courts; and in his opinion cancellation of the warrants of customary courts was tantamount to their abolition; and it also appears from a careful study of the judgment, parts of which I will set out again anon, that that court was also of the view that,

(3) the powers reserved by the Edict No. 9 of 1978 for the Military Governor of Bendel State are available, by virtue of the existence of the said Edict as an “existing law” under the 1979 Constitution, to the Civilian Governor of Bendel State.

I pause to draw attention to some of the passages in the lead judgment of that court which are relevant to the points I make in this paragraph; these read: –

“I have to observe that in my view, the provisions of Section 3(6) of Customary Courts Edict 1978 which vest His Excellency The Governor with power to cancel warrants constituting customary courts cannot be said to be in conflict with the provisions of Section 6(4) (a) and (b) (i.e. of the 1979 Constitution) for nowhere in the latter provisions is the House of Assembly named as the only body or authority with power to abolish customary courts. Furthermore, I have to observe that the Customary Courts Edict … is an existing law by virtue of Section 274(1), (4) (b) of the Constitution 1979 and since none of its provisions are contrary to any of the provisions of the Constitution 1979 then that law (Customary Courts Edict 1978) is still valid and good law is certainly an existing law, and consequently the learned trial Judge could not be correct in the conclusion he reached thereon. I am of the view that the learned trial Judge misdirected himself by holding that the House of Assembly is the only body that can abolish a customary court and that the interpretation he thereby put on Section 6(4) (b) of the Constitution 1979 was unfounded and erroneous ………………………………………. Counsel to the plaintiff submitted before us that there is conflict between Section 3(6) of the Customary Courts Edict 1978 and Section 6(4) (b) of the Constitution 1979 and so the Governor who is Chief Executive only and not a legislator under the present Constitution cannot make a law and so B.S.L.N. 1 published on 15th January, 1980, and B.S.L.N. 2 published on 22nd January, 1980, whereby the warrants of all customary courts in Bendel State were revoked were illegal, unconstitutional, null and void, as there is a great difference between a civilian Governor under the present Constitution who had no power whatsoever to make laws and a military Governor under the military rule who was both an executive Governor as well as a legislator.

I have carefully considered the above submissions made by counsel to both parties and I have to say that in view of all I said earlier on …… I do not share the views of learned counsel to the plaintiff …… If it can be shown that in law, the Governor has power to act against the customary courts (as distinct from the members thereof) as he did under Section 275(4) of the Constitution 1979 together with Section 3(6) of Customary Court Edict 1978, in my view, it will really not matter except perhaps for academic purpose only, whether he also tried erroneously (if his action may be so described) to achieve the same by causing B.S.L.N.1 as well as B.S.L.N. 2 to be made. Furthermore, I have to observe that the Customary Courts Edict No.9 of 1978 is an existing law by virtue of Section 274 (1), [here, the learned Judge of the Court of Appeal must have in mind “modification” or ‘adaptation’ under Section 274(1) of the Constitution] 274 (b) of the Constitution 1979 and since none of its provisions are contrary to any of the provisions of the Constitution, 1979, then that law (Customary Courts Edict, 1978) is still valid and good law —— and consequently the learned trial Judge could not be correct in the conclusion he reached thereon, I am of the view that the learned trial Judge misdirected himself by holding that the House of Assembly is the only body that can abolish a customary court and that the interpretation he thereby put on Section 6(4) (b) of the Constitution 1979 was unfounded and erroneous.” (Underlining, square brackets together with contents, by me.)

With great respect to the Court of Appeal the stance it has taken in the above passage with respect to Section 3(6) of Edict No.9 of 1978 is erroneous; indeed, the learned trial Judge’s approach to the matter in issue is, unquestionably, correct. Pursuant to the provisions of sub-section (1) of Section (3) of Edict No.9 of 1978 the Military Governor of Bendel State may – after consultation with the Committee established under that Edict (i.e. the Interim Customary Courts Judicial Service Committee) – establish a customary court by a “warrant under his hand”; and by virtue of the sub-section (6) of Section 3 of the same Edict, the Military Governor may, pursuant to the provisions of the sub-section (i.e. sub-section (6)) – again, after consultation with the said Committee – suspend, vary or cancel any warrant of a customary court (i.e. any “warrant issued in pursuance of this section i.e. Section 3 ). In the lead judgment of the Court of Appeal, Omo-Eboh, JCA., observed:-

“…… learned counsel for the defendants submitted that the trial Judge was wrong in holding that by the provisions of Section 6(4) (b) of the Constitution 1979 only the House of Assembly can abolish customary courts and that Section 3(6) of the Customary Courts Edict (No.9) of 1978 can only be read with regard to the said Section 6(4) (b) of the Constitution or else both will conflict. Counsel (i.e. for the defendants) submitted that the provisions of Section 3(6) of the Customary Courts Edict 1978 do not conflict with Section 6(4) (a) or (b) of the Constitution 1979 because both the latter being merely enabling provisions, only grant certain specified powers to the House of Assembly. ……. I think there is considerable force in the submissions of counsel to the defendants here for I can hardly appreciate how and why the learned trial judge jumped to the conclusion that only a House of Assembly has power to abolish customary courts having regard to the wording of the provisions of that section of the Constitution 1979 which I produce hereunder –

Section 6(4) xx xx xx

xx xx xx

………. I have to observe that, in my view, the provisions of Section 3(6) of [the] Customary Courts Edict 1978 which vest His Excellency The Governor [must mean the MILITARY Governor) with power to cancel warrants constituting customary courts cannot be said to be in conflict with the provisions of Section 6(4) ….. (b) for nowhere in the latter provisions is the House of Assembly named as only the body or authority with power to abolish customary courts ……………..”

(Square brackets together with contents as well as underlining by me).

With great respect to the Court of Appeal the last sentence in the above quotation cannot be correct; if, only, it is remembered that one of the synonyms of the word “abolish” is the word “cancel”, then given the consideration that Edict No.9 of 1978 is an “existing law” under sub-section 4(b) of Section 274 of the 1979 Constitution, it must be clear that sub-section 3(6) of Edict No.9 of 1978 is in conflict (i.e., in the words of sub-section (3) of Section 274 of the said Constitution, “inconsistent”) with the provisions of sub-section 4(b) of Section 6 of the said Constitution. However, unless adapted to suit the circumstances and the set-up of the civilian State Government of Bendel State under the 1979 Constitution, Section 3(6) of Edict No. 9 of 1978, in my view, cannot enure for the benefit of the civilian Governor of Bendel State; for although by the provisions of 275(1) and 275(2) of the 1979 Constitution the Interim Customary Courts Judicial Service Committee in existence on the date the said Constitution came into force may (until its life has been duly terminated as provided in Section 275(3) of the said Constitution) be lawfully considered or regarded as the State Judicial Service Commission comtemplated in Head ‘D’ of Part II of the Third Schedule to the said Constitution, yet it is only the latter Commission that is vested under paragraph 9(d) of Head D of Part II of the Third Schedule of the 1979 Constitution, with the power of dismissal of members of customary courts. In any event, since the Chief Executive of the State government under the civilian State government under the 1979 Constitution is not a military Governor the powers exercisable under the provisions of Section 3(6) of the Customary Courts Edict 1978 are not available to him for reasons which I will set down anon.

Under the military government or administration in existence when Edict No.9 of 1978 was enacted the State military Governor or ‘Military Administrator’ (see, Section 1(1) of the Constitution (Basic Provisions) (Transitional Measures) Act 1978, No.15 of 1978) was both the State’s lawmaker (i.e. the Legislature) and to some extent, Executive or “Chief Executive” (see Sections 3(3), 4(2), 7(1), 7(2), when read together particularly with Section 7(3) of Act No.1 of 1966, i.e. Constitution (Suspension and Modification) Act and also Sections 1(2), 1(3), and 2(2) of The Constitution (Basic Provisions) Act 1975, No. 32 of 1975). Under the 1979 Constitution the civilian Governor of a State – and with particular reference to the case in hand, the civilian Governor of Bendel State – is not the lawmaker of the State, and consequently cannot solely in his capacity of State Governor validly promulgate laws or issue Legal Notices as did the Military Governor of the State. As regards this issue now under consideration, I gratefully adopt the observations of Fatayi-Williams, CJN., in A.G. for Ogun State v. The Federation (decided on 5th February, 1982 and reported in (1982) 3 NCLR 166 at 179, (1982) 1-2 S.C. 13 at 43 “……… that a ‘Military Administrator’ who exercised both legislative and executive powers in each of the nineteen States during the military administration and on whom certain powers were conferred by the said Act is not the same authority as a State Governor who can only exercise executive powers under the 1979 Constitution. Moreover, the provisions of Section 276(2) of the Constitution …… deal with property, rights, liabilities and obligations whether under contract or tort which had become vested in the Military Admnistration before 1st October, 1979, and are clearly irrelevant to the ‘modification’ provided for in Section 274(1)……….” In A.G. for Ogun State v. The Federation (supra) I was and still am of the opinion,

“……that ‘right, privilege, liability or obligation’ referred to in Section 276 aforesaid are rights which usually or normally require to be transferred or assigned (by assurance although it can, sometimes, be so done by operation of law) to another person by or on behalf of the person in whom they are already vested before they can be enforced, exercised or enjoyed by or against such transferee; hence it was necessary for the Constitution to make the specific provision in Section 276 aforesaid that these ‘rights, privilege, liability or obligation’ shall on the date when that section comes into force ‘without further assurance than the provisions’ of the section under consideration ‘vest in or become exercisable or enforceable by or against the President and Government of the Federation and the Governor or Government of a State as the case may be’…….. Power which is another form of legal right is either public or private; public powers ‘are those vested in a person as agent or instrument of the functions of the State ……’ and private powers, on the other hand, ‘are those which are vested in persons to be exercised for their own purposes and not as agents of the State (see Salmond Jurisprudence 12th Edition p.229 – 230 Chapter 42). When a statute confers a power on the holder of an office, it is a public power; and then unless the contrary intention appears from or in the statute, the power may be exercised only virtute officii (i.e. by the holder of the office and by his successor-in-office or the holder of the office for the time being). We are concerned here in these proceedings with powers vested in the ‘Military Administrator’ by statute qua state functionary and this power belongs to the category of public power; unlike the private legal right or private right it does not require any act of party or assurance to be transferred. It is my view that Section 276, which makes reference to transfer and assurance, does not contemplate such legal rights as public powers” (see (1982) 3 NCLR at 193-194, (1982) 1-2 S.C. 13 at 84-86).

Accordingly, it is my view that the ‘power’ or ‘right’ of the Military Governor (or Military Administrator) under Section 3(6) of Edict No.9 of 1978 to cancel warrants of customary courts subject to the conditions stated in the sub-section is, indeed, a public ‘power’ or ‘right’ vested in the Military Governor of the State of Bendel and for the reasons stated in the foregoing paragraph is not exercisable, under Section 276 of the 1979 Constitution or, indeed, under any other legal provisions in our statute books, by the civilian Governor of Bendel State such as the first respondent. The learned trial Judge, (Uwaifo, J.) is, in my view, quite right when he held that the Courts (Cancellation) Order (i.e. B.S.L.N. 2 of 1980), which the first respondent qua Governor of Bendel State enacted in the purported exercised of what he considered to be “his powers” under Sections 275(4) of the 1979 Constitution and 3(6) of Edict No.9 of 1978, is unconstitutional and invalid; and the Court of Appeal – with great respect to that court – was in error in holding that, in January, 1980, the first respondent had the necessary powers under the Constitution and Edict No.9 of 1978 to enact the Courts (Cancellation) Order. It is the State House of Assembly (NOT the Governor) that has the power under the present Constitution to abolish the customary courts.

I am also in agreement with the learned trial Judge that the Revocation Order (i.e. B.S.L.N. 1 of 1980) is unconstitutional and invalid. Prior to the coming into force of the 1979 Constitution, the power of dismissal (or removal from office) of customary court members vested in the Interim Customary Courts Judicial Service Committee established under Section 2 of Edict No.9 of 1978 (Section 6 of the said Edict refers); the power was even then not available to the Military Governor. However, under the 1979 Constitution it is the State Judicial Service Commission that has the power of removal from office (i.e dismissal) of members of customary courts in the State. (Paragraph 9(d) in Head D of Part II of the Third Schedule to the 1979 Constitution refers.) Again, with much respect to the Court of Appeal, I am of the firm view that that court erred, in reversing the decision of the learned trial Judge on this issue. That portion of the lead judgment which states that “there is nothing to show that B.S.L.N. 1 of 15/1/80 and B.S.L.N. 2 of 22/1/80 were made by the Governor alone in his position as Chief Executive of Bendel State without consultation with any one or any body of persons who constitute his advisers or a committee ……..,” in my respectful view, stems from a misconception of the relevant question: who has the power in 1979 to dismiss customary court members, as well as misapplication of the provisions of Sections 3(6) and 6 of Edict No.9 of 1978. Section 6 of Edict No.9 of 1978 vests the Committee (defined in Section (2) thereof) with the power of dismissal of customary court members, and Section 3(6) vests in the Military (NOT Civilian) Governor the power of cancellation (or abolition) of customary courts but only after prior consultation with the Committee aforesaid. Unquestionably, the Revocation Order (B.S.L.N. 1 of 1980) is, indeed unconstitutional, null and void.

Again, I agree with the learned trial Judge that the Courts (Abolition) Law effectively abolished customary courts in Bendel State on 1st April, 1980; and that it is not inconsistent with the provisions of the 1979 Constitution. On this issue, I reject the contention on behalf of the appellant that the Law (Courts (Abolition) Law) must in order to be valid, state ex facie – in the language of Section 6(4) (b) of the said Constitution – that the State House Assembly “no longer require” customary courts. In this court, the appellant contends that he is entitled to his salary up to and including the 25th day of March, 1981, the date on which his renewed contract would have expired. I find considerable substance in that submission; admittedly, the two orders i.e. the Revocation Order and the Courts (Cancellation) Order being invalid, the appellant’s contract of service ought to continue until its expiration which under the renewed terms must be the 25th day of March, 1981. (See also P.O. Ewerami v. African Continental Bank Ltd. (1978) 4 S.C. 99). I bear in mind the settled principle of law that where impossibility of performance of a contract arises after the formation of the contract then there is, in law, a case of frustration, or subsequent impossibility of performance of the contract, and subsequent impossibility of performance of a contract brings a contract otherwise valid to an end generally from the moment of impossibility. Frustration of contract may arise from a number of causes one of which may be subsequent legal changes. This is usually the case where performance of a contract has been rendered impossible by an Act of Parliament passed after the contract was made; for the presumption of law is that parties to a contract intend to contract with reference to the law as existing at the time when the contract is made. Accordingly, the Board of the Privy Council in 1934 considered that the abolition by statute of an office discharged the contract of employment relating to that office – see Reilly v. The King (1934) AC 176. That was a case in which the appellant was appointed a member of a statutory Board in Canada with specified term of appointment and salary. During the tenure of the appointment the office was abolished by the repeal, by subsequent Order-in-Council, of the statute enabling the Board. On a claim by the appellant, by petition, for damages for breach of contract, the Judicial Committee of the Privy Council held that the contract was discharged because further performance had become impossible by statute. In this regard, the maxim of the law is lex non cogit ad impossibilia (see also Marshall v. Granvill (1917) 2 KB 87).

In the case in hand, however, the appellant was appointed a customary court member and, in the words of his document of appointment, he was specially appointed for Oredo Customary Court (see Exhibit ‘B’ – the offer of contract of appointment and Exhibit ‘D’ – the renewal of the contract). On behalf of the respondents the submission is that “Parliament” (i.e. the Bendel State House of Assembly) had, by the Courts (Abolition) Law, 1980, abolished all customary courts in the State (the Oredo Customary Court inclusive) with effect from the 1st day of April, 1980; and it was, therefore, contended that as the appellant’s contract of employment became frustrated on the 31st day of March, 1980, the contract aforesaid was lawfully terminated on that date. The learned trial Judge accepted this submission and contention on behalf of the respondents and held that the appellant was entitled to his remuneration up to and including the 31st day of March, 1980; and it was his view that but for the “intervention” of the State House of Assembly in passing the Courts (Abolition) Law 1980 the appellant would have been entitled to his remuneration up to and including the 25th day of March, 1981. In this connection, the learned trial Judge found support for this latter view in the cases of Ewerami v. African Continental Bank Ltd. (1978) 4 S.C. 99 and also Myron Wiener v. United States (1958) 357 U.S. 349; also U.S.L ed. 2nd Series, 1377; also 78 S.C. Reporter 1275. However, I am unable to accept the view of the learned trial Judge on this issue in view of the special provisions of Section 275 of the said Constitution of the Federal Republic i.e. the 1979 Constitution. Sub-sections 1 and 2 of Section 275 of the Constitution provide adequate safe-guard to the offices established prior to the coming into force of the said Constitution and the memberships thereof, so that the appellant is deemed to have been appointed a member of customary court of Bendel State (albeit assigned to the Oredo Customary Court) by the State Judicial Service Commission under paragraph (d) of sub-section (a) of Section 9 of Head ‘D’ in Part II of the Third Schedule to the 1979 Constitution. As at the date when the Courts (Abolition) Law 1980 came into force it was only the State Judicial Service Commission that had the powers of exercising disciplinary control over, or dismissal of, the appellant prior to the expiration of his contract of employment; in this respect, his appointment was, by virtue of Section 275(3) of the said Constitution, to an office guaranteed under the 1979 Constitution. It is an office guaranteed as aforesaid in that removal therefrom has to be in accordance with the provisions of the Constitution. Sub-section (3) of Section 275 reads:-

“Notwithstanding sub-section (2) of this Section, any person holding such office, a member of a court of law or authority, who would have been required to vacate such office, or where his membership of such court of law or authority would have ceased but for the provisions of the said sub-section (2) of this section, shall at the expiration of the period prescribed therefor after the date when this section comes into force vacate such office or, as the case may be, his membership of such court of law or authority shall cease accordingly” (underlining by me).

It was, however, open to the Bendel State House of Assembly pursuant to the provisions of sub-section (4) of Section 275 by special enactment to terminate the membership of the appellant of the State Customary Court (just as by the special enactment of the Courts (Abolition) Law 1980 pursuant to the Provisions of Section 6(4) (b) of the said Constitution it abolished the State Customary Courts). Being an office guaranteed under the 1979 Constitution it was not enough, in my view, for the State House of Assembly by the abolition of the State Courts, to effect the termination of his appointment to that office; termination of his membership of the State Customary Court still has to be carried out in the manner envisaged by the said Constitution. Therefore, the conclusion which I have reached is that the appellant’s contract of employment continued, notwithstanding the coming into force of the Courts (Abolition) Law 1980 until 25th day of March, 1981, when, by efflusion of time, it expired; in the event, he is entitled to his remuneration under the said contract up to and including the 25th day of March, 1981. The appellant, however, has not appealed on this point from the decision of the Federal Court of Appeal which by implication confirmed the award in respect of his remuneration as found by the trial Judge. He, however, in respect of relief he seeks in this court asked “for such orders as this court may deem fit to make” in the circumstances of his appeal; and this court ought to grant to him his proper entitlements.

This appeal, therefore, succeeds; and it is hereby ordered that the judgment of the Federal Court of Appeal (holden in Benin) in FCA/B/115/80 dated the 16th day of December, 1981, together with the award of costs thereon, be and is hereby set aside; and the judgment of, together with the order for costs of N200 payable to the appellant by the respondents made by, the Bendel State High Court (Uwaifo, J.) in Suit B/25/80 dated the 24th day of June, 1980, be and is hereby restored; in addition the appellant is to have his remuneration up to and including the 25th March, 1981. It is further ordered that the appellant shall have costs to be paid by the respondents to him of (a) in the Federal Court of Appeal, the sum of N200 and (b) in this court, the sum of N300.

A. G. IRIKEFE, J.S.C.: I had the advantage of reading in draft the judgment just read by my learned brother, Idigbe, JSC. I agree with the reasoning and conclusions therein both on issues of fact and law. I also would allow this appeal and do so in terms of the orders contained in the lead judgment of Idigbe, JSC., aforesaid. This also goes for the order made as to costs.

M. BELLO, J.S.C.: I had the advantage of reading in advance the judgment of my learned brother, Idigbe, JSC. For the reasons stated therein, I agree the appeal should be allowed, the judgment of the Federal Court of Appeal be set aside and the judgment of the High Court be restored. I also agree with his orders as to costs.

A. O. OBASEKI, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Idigbe, JSC., in its draft stage. I entirely agree with it as I am of the same opinion on the questions raised in the appeal so lucidly expressed.

The main question of the constitutional validity of the Revocation Order BSLN. No. 1 of 1980 and the Customary Courts (Cancellation of Warrants) Order BSLN. No. 2 of 1980 was dealt with in detail and answered in the negative. The powers vested in the Governor as Chief Executive are expressly made subject to the provisions of the Constitution. This is clear from the express provisions of Section 5(2) of the 1979 Constitution which reads:

“Subject to the provisions of this Constitution, the executive powers of a State –

(a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the Public Service of the State;”

The phrase “subject to the provisions of this Constitution” which governs the sub-section implies that where executive powers are vested in and exercisable by another body by the 1979 Constitution, it is that body and not the Governor that is the competent authority to exercise the executive powers.

I therefore agree with my learned brother that since the 1979 Constitution has vested the powers of dismissal of the members of customary courts in the Judicial Service Commission, it is the Judicial Service Commission that has the constitutional authority to revoke the appointment of the plaintiff/appellant.

The invalidity of the Customary Courts (Cancellation of Warrants) Order 1980 BSLN. 2 of 1980 springs from the absence of constitutional legislative power in the Governor. BSLN. 2 of 1980 was promulgated with the expressed intention of abolishing customary courts in the State. The power to abolish customary courts which are courts with subordinate jurisdiction to that of the High Court was expressly vested in the House of Assembly of Bendel State. See Section 4(7) (a) & (c) and Section 6(4) (b) of the 1979 Constitution.

Customary courts warrants are Instruments which fall within the definition of ‘existing law’ (see Section 274(4) (b) of the 1979 Constitution) and as such only the House of Assembly can revoke the warrants.

For a proper appreciation of this point, I will set out the relevant provisions of the Constitution.

Section 4

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –

(a) any matter not included in the Exclusive Legislative List set out in Part I of the second Schedule to this Constitution.

(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

Section 6

(4) Nothing in the foregoing provisions of this section shall be construed as precluding –

(b) any House of Assembly which does not require it, from abolishing any court established under paragraph (a) of this subsection or to which subsection 5(e) and (f) of this section relates.

Section 274

(4) In this section, the following expressions have the meaning assigned to them, respectively –

(a) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.

The Customary Courts (Abolition) Law No. 10 of 1980 was, in my view, validly enacted and as rightly held by my learned brother, Idigbe, JSC., effectively abolished all customary courts in the State with effect from 1980 April. The existence of customary courts having been terminated, it also discharged all contracts of appointment as members of the courts and in the instant appeal, the contract of the appellant as from 1st April, 1980, as there were no courts in respect of which the contracts would be performed. In the exercise of its sovereign legislative powers, the House of Assembly is under no obligation to express the reasons that motivated it to enact the law.

Customary courts in any State other than customary courts of appeal owe their existence to the statutes enacted by the legislature of the States as neither the 1963 Constitution nor the 1979 Constitution made any special provision in the Constitution for their establishment. Customary courts of appeal of a State established by Section 245 of the 1979 Constitution would by its name tend to suggest that it was established for hearing appeals from customary courts. But the jurisdiction given to the court has not specifically or expressly mentioned customary courts as courts from which appeals should lie. The jurisdiction the court is to exercise is contained in the provision of Section 247 of the 1979 Constitution and reads:

“(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law

(2) For the purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it was established.”

This establishment can only be by law enacted by the House of Assembly and once it is established it becomes one of the courts in which the judicial powers of the State is vested by virtue of Section 6(2) of the 1979 Constitution. It is only that House of Assembly that established them that can abolish them. See Section 6(4) of the 1979 Constitution. This section expressly recognised the constitutional powers of the House of Assembly to establish courts other than those named in subsection 5 (a) to (f) of Section 6 of the Constitution by providing that

“Nothing in the foregoing provisions of this section shall be construed as precluding

(a) any House of Assembly from establishing courts other than those to which this section relates with subordinate jurisdiction to that of a High Court.

(b) any House of Assembly which does not require it from abolishing any court established under paragraph (a) of this subsection or to which subsection 5(e) and (f) of this section relates.”

Subsection 5(e) and (f) of this Section 6 reads:

“(e) a Sharia Court of Appeal of a State

(f) a Customary Court of Appeal of a State.”

In other words, although these two courts are established by the 1979 Constitution (see Section) 240(1) and 247(1) of the 1979 Constitution), under and by virtue of Section 6(4) (b) of the 1979 Constitution, a House of Assembly can abolish it. Power is conferred on the State Judicial Service Commission by Section 9 of Part 2 of the Third Schedule paragraph (d) to appoint, dismiss and exercise disciplinary control over judges and members of customary courts. The subsection reads:

“The Commission shall have power subject to such conditions as may be prescribed

(d) to appoint, dismiss and exercise disciplinary control over……judges and members of …customary courts.”

It is only the Judicial Service Commission that can exercise those powers but, in my view, only and in so far as there are customary courts in existence.

The Customary Court Law 1978 was the operative law under which the Oredo II Customary Court was established. It was promulgated in 1978 with the title Customary Court Edict 1978 No.9. Section 4 of the Law provides that “A customary court shall consist of three customary court judges, one of whom shall be designed President.” This law was repealed by Customary Court (Abolition) Law 1980, Law No. 10 of 1980.

The effect of the repeal of this law and the abolition of all customary courts in the State is to abolish the offices of customary court judges and although the office of the appellant survived by virtue of Section 275(2) of the 1979 Constitution, the House of Assembly of the State has constitutional powers to abolish it. Section 275(4) specifically stated:

“The foregoing provisions of this section are without prejudice to the exercise of such powers as may be conferred by this Constitution or a law upon any authority or person to make provision with respect to such matters as may be prescribed or authorised by this Constitution or such law, including the establishment and abolition of offices, courts of law or authorities and with respect to the appointment of persons to hold offices or to be members of courts of law or authorities and their removal from such offices, courts of law or authorities.” (Underlining mine.)

For the above reasons and reasons so lucidly set out in the judgment of my learned brother, Idigbe, JSC., I hereby allow the appeal, set aside the judgment of the Federal Court of Appeal and restore the judgment of the High Court (Uwaifo, J.), Benin City, with costs as ordered by my learned brother.

K. ESO, J.S.C.: I agree with the judgment just read by my learned brother Idigbe, JSC. My learned brother has kindly given me a preview of the judgment.

In regard to the scope of Section 275(4) of the Constitution of the Federal Republic 1979 (hereinafter referred to as the Constitution), I am satisfied that the establishment and abolition of offices, courts of law or authorities cannot be subject of executive action. With the concept of Separation of powers entrenched in the Constitution, it becomes clear that the civilian Governor of the State is limited to executive functions (Section 5(2) of the Constitution) while the power to make laws are vested in the House of Assembly of the State (Section 4(7) of the Constitution). This being the case, therefore, the Customary Courts (Revocation of Appointment of Presidents and Members) Order 1979 (LN 1 of 1980) made by the Governor of Bendel State is in excess of the powers conferred upon the Executive by the Constitution, and is therefore void for unconstitutionality.

For a law to be valid and in conformity with the provisions of Section 275(4) in so far as provision for the establishment and abolition (it is abolition that is material in this case) of courts and offices held therein is concerned, such laws must not be inconsistent with the provisions of the Constitution.

I agree with my learned brother that the Customary Courts (Abolition) Law No. 10 of 1980 is not inconsistent with the provisions of the Constitution. The legislature has power to abolish customary courts in the State and it would be futile to read bad faith into the action of the Legislature. Notwithstanding, in so far as the appointment of the appellant is concerned, the appointment can only be terminated by the Judicial Service Commission under the Constitution.

The appellant should be entitled to his salary up to and including the 25th March 1981, the date on which his renewed contract expired for the reasons so adequately given in the judgment of my learned brother, Idigbe JSC.

The appeal is allowed in the terms stated in the aforementioned judgment of my learned brother, Idigbe, JSC.

A. NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just read by my learned brother, Chike Idigbe JSC., and I entirely agree with the reasoning and conclusions reached therein. For purposes of the comment I make hereunder I shall adopt my learned brother’s treatment of the facts as well as the argument of counsel before us and will not need to repeat them except insofar as it becomes necessary for any point I wish to make.

In his brief of argument, learned counsel for the appellant set down what he referred to as the main issues in the appeal. These he stated as

“(1) Whether the 1st respondent (the Governor of the Bendel State of Nigeria) has powers to bring to an end the appellant’s contract of service by –

(i) removing him from office as he purported to do by Order B.S.L.N. 1 of 1980; or

(ii) cancelling the warrants of customary courts in the State as he allegedly did by virtue of B.S.L.N. 2 of 1980 AND

(2) Whether the Customary Courts (Abolition) Law No. 10 of 1980 effectually determined the appointment of the appellant”

I do not find it necessary to set down the subsidiary issues as they were not argued before us and I do not consider them necessary for purposes of disposing of this appeal.

As stated in the main issues, the 1st respondent on or about 15th January 1980 made the Customary Courts (Revocation of Appointment of Presidents and Members) Order, 1979 published as B.S.L.N.1 of 1980, whereby he purported to revoke the appointment of the appellant as a member of the Oredo Customary Court No.1, Benin City, with effect from 15th January, 1980. Again on or about 22nd January, 1980, the 1st respondent made the Customary Courts (Cancellation of Warrants) Order 1980 published as B.S.L.N. 2 of 1980 such that the warrants by which all customary courts in Bendel State were established under Section 3(1) of the Customary Courts Edict 1978 were cancelled with effect from 22nd January, 1980. The 1st respondent was purported to have acted pursuant to the provisions of Section 275 subsection 4 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter known as the Constitution of 1979) and Section 3 subsection 6 of the Customary Courts Law 1978 (Edict No. 9). The two provisions are in these terms: Section 275(4)

“The foregoing provisions (i.e. subsections 1, 2 and 3) are without prejudice to the exercise of such powers as may be conferred by virtue of this Constitution or a law upon any authority or person to make provisions with respect to such matters as may be prescribed or authorised by this Constitution or such law, including the establishment and abolition of offices, courts of law or authorities, and with respect to the appointment of persons to hold offices or to be members of courts of law or authorities and their removal from such offices, courts of law or authorities”

Sections 3(5) and 3(6) of the Customary Courts Law (Edict No.9) 1978

“(5) Every warrant establishing a customary court shall be operative and take effect from the date specified therein

(6) The Military Governor may at any time after consultation with the Committee suspend, vary or cancel any warrant issued in pursuance of this section”

Before considering the effect of these provision I may just mention that subsections 1 and 2 of Section 275 of the Constitution (which I shall set down below) actually seek to safeguard offices existing at the time the Constitution of 1979 came into existence.

With respect to B.S.L.N. 1 it was contended for the 1st respondent that he acted under Section 162(2) which states that he is the Chief Executive of Bendel State – and Section 275(4) above. Although the Governor is undoubtedly the Chief Executive of the State and by Section 5(2) (a) of the Constitution, which is itself subject to the provisions of the Constitution, the executive power of the State is vested on him, that does not vest in him all executive power nor does it entitle him to exercise such power as is vested on other persons or executive bodies by the Constitution. (See The Governor of Kaduna State and 2 Ors. v. Lawal Kagoma (1982) 6 S.C. 87 at 129.) Section 275 (4) of the Constitution does not expressly confer on the 1st respondent the power to remove from office members of courts of law such as the appellant herein. Nor is there such law which so authorises him. On the contrary, under Part II of the Third Schedule to the Constitution of 1979 paragraph 9(d), the State Judicial Service Commission has power “to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, magistrates, judges and members of Area Courts and Customary Courts” (Underlining mine.)

It is only pertinent to add on this part of the case that on the coming into force of sub-sections 1 and 2 of Section 275 of the Constitution (particularly Section 275(2) ) which provide as follows:-

“(1) Any office, court of law or authority which immediately before the date when this section comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder.

(2) Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue or this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution”

the appellant was deemed to have been appointed by the State Judicial Service Commission.

As regards B.S.L.N. 2 of 1980 i.e., the cancellation of the warrants of customary courts, there is no doubt that the 1st respondent purported to act under Section 275(4) of the Constitution and Section 3(6) of the Customary Courts Law (Edict No.9) of 1978. Section 275(4) of the Constitution has not expressly granted to the Governor the power to “abolish offices, courts of law or authorities.” Reliance had to be placed on a law independent of that section and that law was Edict No.9 of 1978.

By virtue of the provisions of Section 274(4)(b) of the Constitution of 1979, the Customary Courts Law, 1978 of Bendel State, is an existing law under the Constitution. Having been so accepted however, it would have to be modified to bring it into conformity with the provisions of the Constitution in accordance with Section 274(2) therein. It must also be stated that if any provision of an existing law is inconsistent with any provision of the Constitution of 1979 such provision shall be void (See Sections 274(3) (d) and 1(3) of the Constitution).

As set down supra, Section 3(6) of the Customary Courts Law 1978 empowered the Military Governor after consultation with the Committee to suspend, vary or cancel any warrant issued in pursuance of Section 3(1), i.e., for the establishment of customary courts. From the records of proceedings, there is nothing to indicate that any modification of this section had been undertaken as required by Section 274(2) of the Constitution. The result is that the power so granted is granted to the Military Governor a functionary that is not only non-existent in the 1979 Constitution but is in any case so different from the civilian Governor. Among so many differences is the fact that while the military Governor exercised both legislative and executive powers, the civilian Governor has only executive powers under our Constitution. This distinction was accepted by this court recently in Attorney General of Ogun State and Ors. v. The Attorney General of the Federation and Ors. (1982) 1 & 2 S.C. 42.

It follows that Section 3(6) of the Customary Courts Law 1978 cannot form the platform on which the 1st respondent exercised the powers he purported to exercise under Section 275(4) of the Constitution. There is also another reason why Section 3(6) of Edict No.9 cannot avail the Governor or more specifically assist him in his purported exercise of powers under Section 275(4). Perhaps, before dealing with that reason I should briefly deal with the argument between both learned counsel as to the cancellation of the warrants of customary courts. Learned counsel for the respondents strenuously argued before us that cancellation of the warrants was different from the abolition of the courts. With respect, I cannot see the difference. Once the warrant of the particular court is cancelled, the court ceases to exist. I cannot see what else is abolition if this is not. Indeed, learned counsel for the respondents later argued that

“when the warrants were cancelled, the courts were not there and members had nowhere to go.”

It was necessary to get this point out of way in view of the power vested in the House of Assembly to abolish customary courts. Section 6(4) (b) of the Constitution 1979 provides as follows:-

“6(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established subject as provided by this Constitution for a State

…………..

(4) Nothing in the foregoing provisions of this section shall be construed as precluding –

(b) any House of Assembly, which does not require it, from abolishing any court established under paragraph (a) of this sub-section or to which subsection 5(e) and (f) of this section relates”

It is clear that the power to abolish customary courts is vested in the House of Assembly. The Bendel State House of Assembly exercised this power and enacted the Customary Courts (Abolition) Law 1980 No.10 of 1980 which came into effect on 1st April, 1980. From the foregoing provisions, the provisions of Section 3(6) of the Customary Courts Law 1978, an existing law, are inconsistent with Section 6(4) (b) of the Constitution 1979, since they purport to confer legislative power on the 1st respondent (i.e., even if that subsection had been modified). Section 3(6) of Edict No.9 is therefore null and void.

On the first of the main issues raised, I therefore agree that the purported exercise of power by the 1st respondent in B.S.L.N.1 and B.S.L.N.2 1980 was unconstitutional, null, void and of no effect. The question which immediately arises is what is the effect of this on the appellant’s appointment Does he remain until today in the employment of the Bendel State Government (See the decision of this court in P. O. Ewerami v. African Continental Bank Ltd. (1978) 3 S.C. 99, 110.). I do not think so for the reasons which I state below. It is agreed that the appellant was on 25th September, 1978 appointed a member of Oredo Customary Court. This appointment was renewed for a further period of 18 months with effect from September, 1979. It is clear that on the view I have expressed on the effect of B.S.L.N.1 and B.S.L.N.2, the appellant would hold his appointment till the expiry of his latest contract of appointment. The only difficulty seems to arise from the enactment of the Customary Courts (Abolition) Law 1980. This law having come into operation on 1st April 1980, it is contended for the respondents that the appellant’s appointment ended on 31st March 1980 (indeed the learned trial Judge so held). This it was argued was because the appellant’s appointment being contractual was frustrated by the enactment of the Customary Courts (Abolition) Law 1980. This law it was said

“effectively and legally brought about the demise of the Customary Courts and with it the end of the plaintiff’s appointment.”

The plaintiff’s contract of service was frustrated by statute on the authority of Reilly v. King, (as per respondent’s brief). I do not think that there is any gainsaying the fact that the appellant’s appointment was a contractual one for a definite term. It does seem to me that there are great similarities between the facts of this case and those in C.B. Reilly v. The King (1934) AC 176 PC. In that case, the appellant was appointed by letters patent under an Order-in-Council as a member of the Federal Appeal Board of Canada on a fixed salary and for a fixed period of 3 years (later extended for 5 years). Nevertheless, he lost his appointment when the Parliament of Canada abolished that Board and instead set up a Pensions Tribunal and Pensions Appeal Court to none of which appellant was appointed member. The Privy Council refused his appeal on a claim for damages. Lord Atkin delivering the opinion of the Board said at page 180

“But the present case appears to their Lordships to be determined by the elementary proposition that if further performance of a contract becomes impossible by legislation having that effect the contract is discharged. In the present case the office held by the appellant was abolished by statute. Thenceforward it was illegal for the executive to continue in that office or pay him any salary and impossible for him to exercise his office. The jurisdiction of the Federal Appeal Board was gone. The position, therefore, seems to be this. So far as the rights and obligations of the Crown and the holder of the office rested on statute, the office was abolished and there was no statutory provision made for holders of the office so abolished. So far as the rights and obligations rested on contract, further performance of the contract had been made by statute impossible and the contract was discharged. It is perhaps unnecessary to add that damage means put an end to and does not mean broken. In the result therefore, the appellant has failed to show a breach of contract on which to found damages” See also Marshall v. Glanwill (1917) 2 K.B. 87 and Studholme v. South Western Gas Board (1954) 1 W.L.R. 313 cited in “Chitty” on Contracts 23rd Edition General Principles, Article 1278.

On the face of it, it would appear that the appellant’s position is exactly analogous to Mr. Reilly’s. But it seems to me that it has to be remembered that the appellant’s appointment is not only contractual but is in fact guaranteed by the Constitution 1979. Cognizance should not just be taken of only Section 6(4) (b) of the Constitution and the law enacted pursuant to it, but other relevant provisions of the Constitution should be taken together with it. It is an accepted principle of the interpretation of Constitutions (or indeed any statute) that the provisions should be taken as a whole. It cannot be presumed that any clause in the Constitution is intended to be without effect: See Marbury v. Madison 5 US 337, 1 Crauch 137, 2 L.Ed,. 60. Sub-sections 1 and 2 of Section 275 of the Constitution 1979 as hereinbefore stated, safeguard the offices established prior to the coming into force of the Constitution (such as the office of the appellant) and indeed he is deemed to have been appointed by the State Judicial Service Commission. Since however Section 275(4) of the Constitution is prefaced with the remarks

“The foregoing provisions (i.e. sub-sections 1 and 2) are without prejudice to the exercise of such powers as may be conferred by virtue of this Constitution…… upon any authority”

nothing in my view precludes the Bendel State House of Assembly from “abolishing offices, courts of law or authorities or …….. appointment of persons to be members of courts of law….. and their removal from such offices, courts of law or authorities.” (Underlining mine.)

It seems to me that since the Constitution envisages abolition of courts and offices, only a law enacted pursuant to the powers granted by Section 6(4) (b) and 275 (4) of the Constitution which abolishes offices, can affect the appellant’s appointment. In the Reilly case, it seems that only the Board was abolished. The Customary Courts (Abolition) Law 1980 dealt specifically with the abolition of courts and did not abolish the appellant’s office. I hold therefore that the appellant’s office and appointment subsisted after 1st April, 1980 and was only terminated at the end of his contract of appointment, i.e., 18 months from September, 1979. This would be 25th March, 1981.

It remains to deal with the second main issue in the appellant’s grounds of appeal which is an attack on the Customary Courts (Abolition) Law 1980. The attack was on several grounds among which are that it violates the provisions of Section 6(4) (b) of the Constitution which stipulates that the Assembly may abolish courts which it does not desire; that the Law No. 10 of Bendel State was made in bad faith and it ousts the jurisdiction of the court and so offends Section 4(8) of the Constitution. As learned counsel for the appellant put it in his brief of argument,

“The gravamen of our argument here is that the Customary Courts (Abolition) Law No. 10 of 1980 was rushed during the pendency of this case with the indirect object or motive of trying to validate the unconstitutional Orders 1 and 2 of 1980 aforesaid, and of ousting the jurisdiction of the court in the matter as well ……..

Since the aim and purpose of the said Law No. 10 of 1980 are to save unconstitutional acts and also oust indirectly and/or by subterranean device the jurisdiction of the court in the matter, the said legislation is unconstitutional and invalid……”

If one may first take the question of ousting the jurisdiction of the courts, Section 4(8) of the Constitution provides among other things…..”and accordingly the National Assembly or a House of Assembly shall not enact any law that ousts or purports of oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

I cannot see in what manner the Bendel State Customary Courts (Abolition) Law No.10 of 1980 ousts the jurisdiction of the courts in the instant case although it was enacted while this suit was pending. To be more exact, while the suit was filed in February 1980 the Law took effect on 1st April 1980. Although the Law was clearly in relation to a matter in court, there was no attempt to preclude the courts from pronouncing the rights to the parties in the matter and indeed the High Court proceeded so to do. Nor can I see any grounds for contending that the Law was meant to validate B.S.L.N. 1 and B.S.L.N. 2 of 1980. There is nothing in the express terms of Bendel State Law No.10 of 1980 to lead one to that conclusion. The argument that the provision which it does not desire contained in Section 6(4) (b) of the Constitution was violated is anchored on the premise that subsequent to the abolition of customary courts, the Bendel State House of Assembly passed the Customary Courts Law No. 5 of 1981 establishing customary courts. I think that it would be invidious to hold that the House of Assembly has not validly exercised its powers under Section 6(4) (b) of the Constitution because it did not specifically state in the Law, Bendel State No.10 of 1980, that it does not desire the courts that it abolished. I cannot put it higher than the learned trial Judge did – the House of Assembly in promulgating Bendel State Law No.5 of 1981 has certainly indicated its intention.

As regards the contention that the House of Assembly in promulgating Law No. 10 of 1980 was motivated by a desire to save unconstitutional acts, it is not the business of any court to speculate as to the motive of the legislature in enacting any law, or the policy behind the enactment. It has long been settled law that the motive of the legislature in enacting a law does not affect its validity. If the legislative body acts within its powers its motives for so acting are irrelevant. See Radio Corporation Proprietary Ltd. v. The Commonwealth (1937-38) 59 CLR 170 at 185; Elliot v. The Commonwealth of Australia and Anor. (1935-36) 59 CLR 657, 665-666 and Huddart Parker Ltd. and Ors. v. The Commonwealth of Australia and Anor. (1931) 44 CLR 492; See also Arthur Yates and Company Proprietary Ltd. v. The Vegetable Seeds Committee and Ors. (1945) 72 CLR. 37 at 64.

For these reasons and for the more detailed reasons in the judgment of my learned brother, Idigbe, JSC., with which I had previously expressed agreement, I would allow this appeal. The orders are as set down in the said judgment of Idigbe, JSC.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Idigbe, JSC. I agree that the appeal be allowed for the reasons given in the judgment and that costs be awarded to the appellant in the terms contained therein.

Other Citation: (1982) LCN/2153(SC)