⦿ CASE SUMMARY OF:
George I. U. Obayuwana v. Governor, Bendel State & Anor (1982) – SC
– Governors power to abolish Customary Courts.
– Impossibility of carrying out of a Contract;
George I. U. Obayuwana
1. His Excellency, Professor Ambrose Alli, Governor Bendel State.
2. The Attorney-General of Bendel State
(1982) 12 S.C. (REPRINT) 67;
⦿ LEAD JUDGEMENT DELIVERED BY:
C. Idigbe, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Dr. M. Odge, SAN.,
* FOR THE RESPONDENT
– S. D. Osakwe
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.
(a) Whether the Governor has power to abolish the Customary Courts?
(b) The appellant is still a member of the Customary Court aforesaid and entitled to his normal salaries and/or benefits?
⦿ HOLDING & RATIO DECIDENDI
a. The Supreme Court stated that the Governor has no power to abolish the Customary Courts and terminate the appointment of the Appellant. However, the Bendel State House of Assembly can abolish the Customary Court.
i. 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).
ii. 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.
iii. 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.
iv. 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.
v. 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.
b. The Court granted issue B in favour of the Appellant. Though the Customary Court has been abolished, the Appellant’s appointment was not terminated, for it to be terminated, it had to be in accordance with the law which process the House of Assembly never started. Hence, the Appellant’s appointment continued till 25th March 1981 when it was supposed to expire naturally, and he is entitled to all salaries and benefits till that period.
i. 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.
⦿ SOME PROVISIONS
Below are from the 1979 Nigerian 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…………………………………….”
Below is a provision of the Customary Courts Edict 1978.
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.”
Sub-section (3) of Section 275 of 1979 Constitution:
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”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
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. – C. Idigbe, J.S.C. Obayuwana v. Bendel (1982)
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). – C. Idigbe, J.S.C. Obayuwana v. Bendel (1982)
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. – C. Idigbe, J.S.C. Obayuwana v. Bendel (1982)
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. – Obaseki, J.S.C. Obayuwana v. Bendel (1982)
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. – Kayode Eso, J.S.C. Obayuwana v. Bendel (1982)
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. – Nnamani, J.S.C. Obayuwana v. Bendel (1982)