LABOUR CRISIS AND EMPLOYEE'S INVENTION: NEED FOR AUTHORITATIVE LEGISLATION

 

ABSTRACT

The dawn of industrialization was sustained by the protection of intellectual property rights on the basis that every man has the right to benefit from the fruits of his secrets and ideas. One of the mechanisms that have helped in the area of protecting ideas and inventions over the years has being the use of patents. From the earliest known grants of 'letters patent' under the 'Venetian Statute' by the Italian province of Venice in the year 1474 and English 'Statute of Monopolies, 1623', the use of patents has gained recognition in protecting new and inventive ideas.

Industrialization in the field of labour is made possible by good industrial relations based on the continuous mutual adjustments of the respective interests and goals of the employers of labour and the labour. In view of the importance of good industrial relations in order to avoid labour crisis and further industrialization, certain duties are implied by both the Common law and statutes between the employers and the employees.

The implications of these duties as it concerns employees include the duty of faithful service which necessarily involves the disclosure of employee's inventions or discoveries to the employer which was facilitated by his work in the course of his employment. Consequent of the disclosure therefore, lurks the issue of proprietary right to its patent. As a result, the ownership of any patentable invention tends sometimes to generate some form of crisis or discord between the parties.

The Common law which originally provides for the rules in settling such discord is not all-encompassing and sometimes, harsh on the employee. In order to maintain good relation, the Statute has intervened with view to filling the lapses at Common law. However, the salving effect of the 'messianic-statute' is more than meet the eyes, since the Statute is no more than a statutory declaration of the Common law principles. The essence of this article therefore, is to critically examine the Statute vis-à-vis similar statutes in other Common law countries and make the necessary recommendations.

 

INTRODUCTION

The word 'patent' is from the Latin word patere which means 'to lay open' (i.e. to make available for public inspection). The term 'patent' is derived from the fact that the forms of grant were literae patent or open letter, being addressed to all whom they may come. While 'letters patent' were granted for a number of other purposes such as in the appointment of High Court judges or grant of mining rights, they were most frequently granted to inventors which eventually was used to describe inventors' monopoly.

Patents originally were discretionary grants from a government authority. The work of defining the scope of the patent privilege was advanced more by administrative custom than by explicit law. In the late 18^th century, full-blown patent laws appeared in United States and France and were part of the revolutionary assertion of individual rights, thus breaking finally from the notion of royal prerogative. Full patent codes were adopted by many countries around the world by 1850, with Japan adopting western style before 1900. By the middle of 19^th century, part of the problems in connection with invention includes: what inventions are patentable, the meaning of an invention, among others.

In this wise therefore, different applicable laws had tried defining what an invention is, which admittedly is an elusive concept; and in order to make clearer the meaning, these laws set out what inventions are not patentable. This is based on the fact that some of these definitions relate to novelty rather than invention. Our Patents and Designs Act does not attempt any definition.

In view of this fact, the problem of attempting a comprehensive definition of an invention has been judicially recognized in Crossley Radio Corporation v Canadian General Electric Company Ltd. where Rinfret J. said "it would be idle to attempt a comprehensive definition. It is a question of a fact and degree depending upon practical considerations to a large extent that upon legal interpretation." On the above premise therefore, this discourse proceeds on the presumption that invention is rather a matter of conception than definitive, hence, no definition is herein attempted. Help would be found by the exclusion of certain items which do not amount to an invention within the meaning of the Act.

 

INVENTION

The Oxford Advanced Learner's Dictionary defines the term 'invent' as meaning "to produce or design something that has not existed before…" It then goes further to define 'invention' as "a thing or idea that has been invented…; the act of inventing something…" Similarly, the Blacks Law Dictionary defines the term 'invention' as meaning "a patentable device or process created through independent effort and characterized by an extraordinary degree of skill or ingenuity; a newly discovered art or operation…" It is submitted that the above definitions do not fully capture the essence of 'invention' in the context of granting of patents, because patents can be granted over something that has been produced before but later engineered to be applied in a different way in a manner that qualifies as an inventive process. Therefore, an attempt to precisely define an 'invention' is unhelpful for the present purposes. This was the stance taken by the Court in Crossley Radio Corporation v. Canadian General Electric Co. Ltd. in stating that:

It would be idle to attempt a comprehensive definition. In certain cases, the decision must necessarily be the result of nicety. It is a question of fact and degree…depending upon practical considerations to a large extent rather than upon legal interpretation.

 

As against attempting to define what constitutes and 'invention' for the purposes of granting a patent, Section 1 of the Patents and Designs Act stipulates the circumstances under which an invention could be considered patentable. It stipulates that an invention is patentable if:

i.    it is new, results from inventive activity and is capable of industrial application; or

ii.    it constitutes an improvement upon a patented invention, and also, is new, results from inventive activity and is capable of industrial application.

The incidence of 'newness' seems to be cardinal in the contemplation of the Act. This is also called the incidence of 'novelty.' The newness of an invention is usually gauged against the 'state of the art or existing knowledge based, and prior use.' In further explaining the import of a new invention, the Act states that an invention is new if it does not form the state of the art, in other words, being part of the existing body of knowledge in the field concerned which has been made available in writing or orally to the public before the date the application for patent was filed. On the other hand, an invention is said to result from inventive activity if it does not obviously follow from the state of the art; as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial results which it produces.

In any case however, under the Patents and Designs Act, scientific principles and discoveries are not classified as inventions for purposes of a patent application and grant. Under section 1(1)(c) of the Act, an invention is said to be capable of industrial application if it can be manufactured or be used in any kind of industry, including being usable for agricultural purposes.

It is pertinent to point out that discovery is not synonymous with an invention. This distinction is made necessary by the fact that under the Patents and Designs Act, only inventions are patentable. It must however be stated that the Patents and Designs Act does not define the term 'discovery'. Usually, inventions are seen as "an original solution of a technical problem." An invention can be a product or a process of making a product. For example, the European Patent Office (EPO) has traditionally held that an invention must be 'technical' in order to be called a patentable invention, technical meaning as having technical character, or providing a technical contribution. In other words, an invention is something which is 'created' by the inventor. On the contrary, making a discovery is revealing something which already exists in nature, but which has not yet been discovered. A mere discovery – which cannot be patented – is distinct from an invention because no inventive activity is required to produce it. A discovery is, in other words, the mere knowledge about something existing in nature, whereas an invention implies the ability of a human being to use this knowledge in a technical way. Thus, Einstein could never have patented the famous law E=mc2, nor could Newton have patented the law of gravitation. As confirmed by the US Supreme Court in the casu celebra Diamond v Chakrabarty,
"such discoveries are 'manifestations of … nature, free to all men and reserved exclusively to none."

 

THE EMPLOYEE'S INVENTION AT COMMON LAW

Generally, under the Common law, the employee's invention is deemed to belong to his employer with the consequent patent rights based on the fact that, had the employer not set the employment in motion, the invention would not have been possible. The Common law operates on the principle of 'winner-takes-it all' which supposes that the employee is not entitled to any reward for his invention beyond his contractual pay. Hence, it does no matter if the invention is remotely expected and of exceptional importance, because being a businessman and not a philanthropist, the employer engages in his undertaking in order to maximize profit, and he therefore expects his employees to produce the best they are capable of to boost his enterprise. After all, it would be argued that the employer having fulfilled his own duties of provision of materials for work and remuneration for labour, it behooves the employee to fulfill his own corresponding duties of exercising reasonable skill and of faithful service without expecting anything in return beyond his contractual pay.

This general principle of Common law could be modified by the contract of employment. That is to say, if the contract says that the ownership of a patent in any invention be vested in either the employer or the employee, then the courts will have no option than to enforce the agreement of the parties. This is based on the trite law that parties to a contract are presumed to negotiate on equal footing. The employer being at a vantage position to pick and choose amongst the jobless population whom to work with is unlikely to be a signatory to a contract in which ownership of a patentable invention, however remotely connected with the employment, belongs to the employee-inventor.

However, where the contract of employment is silent on the issue of ownership of patent, such is ascertained by the courts by looking at whether the invention is connected with the employee's work, or whether the use of the invention would involve a breach of trust and confidence on the part of the employee, from the point of view of equity. Hence, according to Roxburgh J. in British Syphon Co. Ltd. v Homewood, the question to ask is: "would it be consistent with good faith, as between master and servant, that he should in that position be entitled to make some invention in relation to a matter concerning a part of the plaintiff's business and… keep it from his employer, if and when asked about the problem?" If this is proved against the employee, then it does not matter if the invention was made at his expense and or in his spare time or even occurred just after the cessation of the employment. Finally, where the contract is silent on the issue of ownership of patent, but the employer used the employer's time and materials, the invention belongs to the employer.

In any of the above circumstances, the employer is not bound at Common law to pay the employee anything beyond his contractual remuneration. Remuneration if at all payable can be categorized into two. The first involves compensating the employee for his invention which may turn out to be of immense financial benefits to the employer. The second concerns cases where the employee used his spare time and materials for the invention. This means paying the employee for using his extra-contractual time and defraying the cost of the materials used for the invention. However, it seems that the only situation where the employee's invention may belong to him at Common law is where he invents something by work which he is not paid to do (not connected with his employment), in his spare time, with his own materials and does not make use of his employer's trade secrets.

 

EMPLOYEE'S INVENTION UNDER THE STATUTE

The ownership of patentable invention under the Nigerian law is regulated by The Patents and Designs Act Cap P2 LFN 2004. Firstly, it is provided in the Act that the right to a patent in respect of an invention is vested in the statutory-inventor, whether or not he is the true inventor. However, for the purposes of our discourse, only one section is relevant. Hence, section 2(4) provides thus:

Where an invention is made in the course of employment or in execution of a contract for the performance of specified work, the right to a patent in the invention is vested in the employer or as the case may be, in the person who commissioned the work;

Provided that, where the inventor is an employee, then:-

(a) if-

    (i) his contract of employment does not require him to exercise any inventive activity but he has in making the invention used data or means that his employment has put at his disposal, or

(ii) the invention is of exceptional importance;

he is entitled to fair remuneration taking into account his salary and the importance of the invention; and

(b) the entitlement in question is not modifiable by contract and may be enforced by civil proceedings.

 

The substantive provision is to the effect that the right to patent in the employee's invention belongs to the employer or the commissioner of the work, as the case may be, where such is made in the course of employment or execution of a specified work. That is to say, whether or not the inventor is an employee, whether or not he used his own materials, provided it was made in the execution of the specified work or in the course of the employment, the employer acquires ownership, and no remuneration is payable.

As aforesaid, this provision is declaratory of the Common law in codifying the same injustice to the employee applicable at Common law; hence, all the arguments in justification of the principle proffered under the Common law is applicable here. Hence, the essential element under the main provision is the element of "being made in the course of the employment or a specified work."

However, the harsh effect of the main provision is doused by the provisos. Under the first paragraph of the proviso, if the inventor is an employee, he will be entitled to a fair remuneration where his contract of employment does not require him to exercise any inventive activity and he does invent making use of the data or means his employment has put at his disposal. It seems here that if the employee's contract does not require him to exercise any inventive activity and he invented using his own materials, the invention belongs to the employer because he would have made that in the course of his employment, and hence no issue of remuneration will arise.

The second paragraph of the proviso is to the effect that where the invention is of exceptional importance, the inventor-employee will be entitled to a fair remuneration. That it to say that for the inventor-employee to be entitled to a fair remuneration under the paragraph, the invention in question must be of exceptional importance otherwise no remuneration is payable.

However, it is importance to note that the provisos do not deal with the issue of ownership of a patentable invention, but are rather concerned with the issue of fair remuneration only. Hence, it has no effect on the main provision which deals with the issue of determining the ownership of such invention. This proposition is base on the trite law that a proviso cannot be read to alter the meaning of a substantive enactment where it is plain and not susceptible to more than one meaning. It is further provided in the Act that the mode of calculating the remuneration payable will take into account the salary of the employee and the importance of the invention, and that the entitlement in question is not modifiable by contract and may be enforced by civil proceedings. Essentially, under the provision, fair remuneration is payable where either invention is remotely expected and the employee does invent with the means or data made available by his employment; or the invention is of exceptional importance. Hence, apart from these two disjunctive circumstances, the issue of fair remuneration cannot arise under the Act.

Demonstratively, three circumstances can be envisaged under the provisos, namely

1. where the contract of employment does not require exercise of inventive activity and the employee does invent without the use of the employer's materials;
   
2. where the exercise of inventive activity is required and the employee does invent with the employer's materials;
   
3. where the exercise of inventive activity is required and the employee does invent without the use of the employer's materials.
   

Strictly speaking, under the Act, in none of the above circumstances can the employee be fairly remunerated except where it is of exceptional importance. Therefore, though the provisos are disjunctive in their applications and meanings, it can rightly be argued that the issue of "exceptional importance" should properly arise when the claim under the first paragraph of the proviso has failed, and to be fairly remunerated, the employee can argue his case under exceptional importance. Otherwise, the first paragraph would have been appropriate than the employee going through the rigours of proving that the invention is of exceptional importance to the employer.

 

A COMPARATIVE STUDY OF OTHER COMMON LAW COUNTRIES

United Kingdom

The ownership of a patentable invention is regulated by the U.K. Patents Act, 1977.
Generally, unlike the position in Nigeria, a patent for an invention is primarily granted, under the U.K. Patents Act, to the inventor or joint-inventors i.e. the actual deviser of the invention. Unlike our Act, the U.K. Act devotes four sections to the subject matter of ownership of an invention: (a) right to employee's invention, (b) compensation of an employee for invention, (c) amount of compensation payable, and (d) the enforceability of contracts relating to employee's invention.
Section 39 of the Act which deals with ownership provides thus:

(1) Notwithstanding anything in any rule of law, an invention made by an employee shall, as between him and his employer, be taken to belong to his employer for the purposes of this Act and all other purposes if-

(a)    it was made in the course of the normal duties of the employee or in the course of duties falling outside his normal duties, but specifically assigned to him, and the circumstances in either case were such that an invention might reasonably be expected to result from the carrying out of his duties; or

(b) the invention was made in the course of the duties of the employee and, at the time of making the invention, because of the nature of his duties and the particular responsibilities arising from the nature of his duties he had special obligation to further the interests of the employer's undertaking.

(2) Any other invention made by an employee shall, as between him and his employer, be taken for those purposes to belong to the employee.

Though the provision is to some extent declaratory of the Common law, it is rather clear-cut and unambiguous and interesting is the qualification in subsection 2 of the section 39.

Under 'paragraph a' of subsection 1, for the invention to become the employer's, it must be made on the course of normal duties of the employee, or in course of duties outside his normal duties which was specifically assigned to him, and the two situations must be such that invention is reasonably expected to result. The provision will apply where an employee's duties include making an invention, for instance, where engaged in a research and development capacity. They would also apply where a workshop manager was given the task of trying to solve a particular problem with the employer's equipment and an invention is made; but it will would not normally apply where, say, a clerical worker working for a manufacturing company devised an invention which improved his employer's assembly line and which has nothing to do with the his normal course of duties and in respect of which he had not been assigned any relevant specific duties. The terms of contract of employment, express or implied, will assist the court in determining whether the circumstances in which the invention was made fall into either of the above two categories.

Finally, under the second paragraph, the invention belongs to the employer if made in the course of the employee's duties and the nature thereof is that the employee is expected specially to further the interests of the employer's undertaking. It can confidently be argued that under the U.K. Patents Act, determination of ownership of invention by usage of the employer's materials and course of employment per se is no longer necessary. This is because of the fact that although an invention made in the course of normal duties necessarily arises in the course of employment, but not all invention made in the course of employment arises in the course of normal duties.

Unlike the Nigerian position, the issue of fair remuneration is determined either by the court or the Comptroller-General, and the criteria for assessing the remuneration payable is based on the benefits the employer has derived or is reasonably expected to derive from the patent among other factors.

 

Ghana

The right to patent is regulated by Ghana Patents Law, No 305A, 1992." Just like the U.K. Patents Act, the right to grant of patent belongs to the inventor or joint-inventors as the case may be. The criteria for determination of ownership are dealt with in S. 10 of that Law. Thus, for the invention made in the execution of a specified work or on contract of employment to belong to the employer, it must be such that the express object of the work or employment is research or the exercise of inventive activity. However, the employee will only be entitled to a fair remuneration where the invention is of exceptional importance.

It is further provided in subsection 2 of section 10 that the invention will belong to both the employer and the employee in equal shares where the employee in making the invention, made use of the employer's materials, installations or equipment.

 

CRITIQUE OF THE NIGERIAN POSITION

The provision of our law is without doubt clumsy and ambiguous. The first problem to encounter in the construing the provision is whether the main provision and the provisos are dependent on each other or stand alone in their meanings and interpretations. However, as aforesaid, they are independent in their meaning since the import of the provisos is the issue of remuneration where made in certain circumstances and does not affect the main provision which import is plain enough to make it stand naked and alone. The main provision is merely declaratory of the Common law principle of "winner-takes-it all" where no issue of fair remuneration can be entertained. This provision perpetuates injustice to the employee such that the employer will lay claim on an invention made by the employee where it is remotely expected, whether with or without the employer's materials; whether done in the course of his normal duties or not, provided it was made in the course of his employment, and can only be fairly remunerated.

On the issue of fair remuneration, though such entitlement cannot be modified by any contract, it is interesting to note that the Act does not address the inequitable issue in which the employer can under the contract reserve the right to claim, without any compensation, the employee's unexpected invention, made with the latter's materials and at his spare time and not connected with his work.

Secondly, the "paragraph" does not address the issue of how to determine when the employee uses data or means that his employment has put at his disposal. In this wise therefore, it seems that "employment" as used in the paragraph should refer to contractual duties which the employee was employed to do and not ones outside it, based on the trite law that a servant is not bound to undertake activities outside his contractual obligations. Hence, it follows that means or data put at one's disposal by his employment when construed in the light of his contractual duties will exclude any such means or data found outside the employee's contractual duties which was used in making the invention. This is based on the fact that one's employment put at his disposal means or data to be used in carrying out his work.

The argument here is that, the issue of fair remuneration in the first paragraph of the proviso seems to be concerned with where the employee was not employed to exercised any inventive activity, but invention is reasonably expected to occure, and means or data are deliberately, and not by chance, put at the employee's disposal for the purpose of carrying out his work. For it will be ill-argued that an employer, having regard to the mentality of profit and loss in the business world would for the purpose of invention, put data or means at the disposal of an employee whose contractual duties cannot possibly lead to any invention. The paragraph admittedly is an ambiguous piece of legislation.

Thirdly, the second paragraph of the proviso is not without its own problem. The ambiguity inherent here lies on how to determine when an invention is of exceptional importance and whether exceptional importance refers to when the employee is employed to invent or when invention is remotely expected. However, it has by suggested that the determination of what is of exceptional importance may be approached from the point of view of materialism (financial benefits) or intellectualism (relating to particular time, space and facilities available).

 

RECOMMENDATIONS

Having assessed the lapses in our law vis-à-vis two other Common law countries, our recommendations herein are as follows: the issue of grant of patent right in our law should be revisited to vest such right in the inventor and the not statutory-inventor who may or may not be the actual inventor. This is to keep to term with what is in accordance with common sense and equity as obtainable in other jurisdictions namely, UK and Ghana.

Secondly, the issue of ownership of an invention in our law is rather ambiguous and perpetuates injustice. It is suggested that the criteria for determining ownership under our law should go beyond the issue of course of employment to whether such invention was made in the course of normal duties of the employee and whether invention is reasonably expected to result; or better still, whether the employee was employed for research or to exercise inventive activity.

Any other invention made outside the above circumstances should rightly belong to the employee and no issue of fair remuneration would arise.

Thirdly, in the light of what has been suggested above, though the invention may belong to the employer by virtue that the employee was employed to exercise inventive activity or invention is reasonably expected, it will be inequitable to leave the employee without any compensation where the invention is of exceptional importance and made in the spare time of the employee, with his own materials. If this is allowed, it will amount to bringing through the back door the Common law principles which has been pushed out through the front door. Hence, it is the suggestion here that fair remuneration should only arise where the employee was employed to exercise inventive activity or invention is reasonably expected to occur and the invention is of exceptional importance – this is the aged long effect of equity on law. These suggestions render the first paragraph of the proviso unnecessary and attach issue of fair to only to where the invention is of exceptional importance and accordingly removes the ambiguity inherent in the paragraph as to when the issue of exceptional importance should arise.

Fourthly, criteria for ascertaining what is of exceptional importance should be provided; and this should preferably be based on the "materialism approach" and with respect to the particular employer concerned and not any other. This is based on the fact that the employer, being a businessman who wants to maximize profits, exceptional importance should be assessed from his stand point on the financial benefits accruing to him from the invention. It is inequitable for him to pay for an invention which may be of exceptional importance to the society at large or another employer but which might be of little importance to him. Furthermore, the criteria for assessing the remuneration payable based on the employee's salary and the importance of the invention may work injustice to the employee based on the fact that his salary may be low and the income yield of the invention may not be immediately known when determining the importance of the invention.

It is suggested that the remuneration should be fixed by a neutral body set-up by law based on the benefits which the employer has derived, or may reasonably be expected to derive from the annual profits of the invention. In this wise therefore, it is suggested that assessment of remuneration payable which is left presumably to the employer should be reversed and vested in body to be set up by law or by the court as obtainable in the UK Act.

Finally, the Act made no provision with respect to ownership of non-patentable invention in the contract of employment, may be because the Act is mostly concerned with intellectual property rights which are protectable under it, in this wise patentable, and not exclusively concerned with labour. On this premise therefore, it suggested that the Labour Act should be amended to include the determination of the right to ownership of non-patentable invention in a contract of employment. In determination of such right, it is suggested that the recommendation herein made under patentable invention will be of help.

 

CONCLUSION

A major purpose of any legislation in the field of contract of employment is to maintain good labour relation while avoiding crisis, or at least to reduce to the barest minimum, the Common law vestige of superiority-inferiority complex in the modern contractual relationship. In spite of the presumption that parties to a contract of employment negotiate on the same pedestal, the underdog status of the employee is never in doubt. The reason for this is not far, if could be remembered that the contract of employment at Common law is founded on the master/servant philosophy – a philosophy that smacks of feudalism and savours of the psychological superiority-inferiority complex. The essence of every law is justice; and justice is mingled with equity, hence legally inseparable. It is thought that the Patents and Designs Act should have done just that in regard to the issue of ownership of employee's patentable invention. Having failed to achieve its essence therefore, though understandably was made by the military, a call for its amendment is hereby made in order to foster good labour relations and promote industrialization as it concerns labour.

A CRITIQUE OF THE SUPREME COURT CASE OF GEN. BUBA MARWA & ORS v ADMIRAL MURTALA NYAKO & ORS (2012) LPELR-SC.141/2011 (CON)

 

ABSTRACT

The Supreme Court case of Marwa & Ors. v Nyako & Ors. otherwise known as the 5 Governor's case has marked a reference point in the annals of Nigerian jurisprudence. Prior to this decision, the position of persons, particularly governors, who emerge winners of re-run elections after the annulment of their initial elections, as regards the computation of their tenure in office was uncertain. In this case, the Supreme Court, after a thorough review of the relevant provisions of the Constitution and judicial precedents, came to the conclusion that in the computation of the tenure, time begins to run from the date the governor was sworn-in pursuant to the nullified election and not from the date he was sworn-in pursuant to the re-run election. This paper seeks to review this decision in the light of the socio-political situation of Nigeria, towards ascertaining whether the decision is capable of fostering sustainable democracy in Nigeria.

 

INTRODUCTION

Before now, Nigerian jurisprudence is replete with plethora of cases addressing various questions and challenges arising from the election of public officers, but this is a case sui generis, in that prior to it, no case has dealt with the question of when the tenure of a governor who won a re-run election after the nullification of his previous election begins to run. Be that as it may, no legal problem or issue must defy a legal solution. In Amaechi v INEC, Oguntade JSC quoted with approval the dictum of Lord Denning M.R in the case of Packer v Packer where he had declared: "If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both."

Thus, it is a cardinal function of law to find a solution to all man-made problems, after all, law has a very wide tentacle. The Supreme Court has taken a bold stride in handling this novel situation. The decision has once again proved the law to be both conservative and dynamic, though the issue that necessarily arises is as to whether this decision has succeeded in addressing the legal and socio-political challenges associated with such matters towards fostering sustainable democracy in Nigeria.

 

THE FACTS OF THE CASE

On the 1^st of September 2010, INEC caused to be published in national daily newspapers that it would conduct gubernatorial elections in all the states of the Federation including the states of the five governors in January 2011. Consequent upon this publication, the five governors commenced personal actions by originating summons in the Federal High Court Abuja, seeking among other prayers, declarations that their various tenures in office as elected governors of the affected states would only expire after four years calculated from the time they assumed office after the re-run or fresh elections and not four years as calculated by the electoral body from the time they assumed office on the 29^th of May 2007. These independent actions were consolidated.

The trial court found in favour of the plaintiffs'/governors which judgment was upheld by the Court of Appeal. Being dissatisfied with the decisions of the two lower courts, INEC appealed to the Supreme Court. After a thorough review of the relevant provisions of the Constitution and judicial precedents, the court reversed the judgments of the two lower courts and held as follows:

1. That the tenure of the governors started to run from the day they took the first oath of office pursuant to the election that was later nullified and not the second oath taken pursuant to the re-run election.
   
2. That the Supreme Court is not bound by decisions of the lower court in matters where that court is the final court of appeal as the Supreme Court is the highest court of the land. Thus, the court can consider the wide nature of the decision of the lower court as to the 'voidity' of the elections.
   
3. That the provisions of the amended Constitution cannot apply retrospectively.
   

AN ACADEMIC REVIEW OF THE 5 GOVERNORS' CASE

It is unarguably trite that the Supreme Court is the final court of the land and no appeals can lie from its decisions to any other court, authority or person, subject to the powers of the president of governor of a state with respect to prerogative of mercy. Indeed, it is beyond contestation that as a general rule, once a court makes a decision in a case, it becomes functus officio and lacks jurisdiction to revisit the decision (subject to the few instances where the law allows the same court to amend or set aside its decision e.g. judgments given without jurisdiction, correction of accidental slips, etc.). Thus, it follows that the decision in the present case is final of the case, just as it is final of the Supreme Court. However, this definitely does not and cannot prevent academic reviews cum appraisal of the decisions of the apex court towards ascertaining how much it fosters sustainable democracy in Nigeria. To this end, a perusal of the judgment of the Supreme Court in this case elicits the following issues:

1. Whether the alternative construction/golden rule of interpretation was applicable in the case, in preference to the literal rule?
   
2. Which of the decisions of Obi v INEC (supra) and Ladoja v INEC was applicable in the circumstances of the case?
   
3. When does the tenure of a governor re-elected pursuant to a re-run election after his initial election was annulled commence? Is it as from the date he took the oath of office and oath of allegiance pursuant to the annulled election or is it as from the date he took the oath of office and oath of allegiance pursuant to the re-run election? What is the essence of the oaths taken pursuant to the re-run election? Can an oath of office and oath of allegiance sworn pursuant to an invalid election form the basis for the computation of term of a governor validly re-elected at a re-run election? Can the four-year tenure of a governor consist of two different elections, and if yes, will this same position obtain where one of the elections is void and the other valid?
   
4. Is the decision in Labour Party v INEC inconsistent with the decision in this instant case?
   
5. Is the oath of office and oath of allegiance the only relevant factor to be considered in the computation of the tenure of a governor? What is the importance of the declaration of assets/liabilities and the oaths of allegiance and of office to the tenure of a governor?
   
6. What is the meaning of the term 'first elected person under this constitution' and 'last elected person under this constitution' as contained in Sec. 180(2) CFRN 1999 (as amended)?
   
7. Must the tenure of an elected governor be a term of four years with an option of re-election for another four year term in all circumstances?
   
8. Does the Supreme Court have jurisdiction to construe the import of a Court of Appeal judgment entered pursuant to a governorship election petition matter, and if so, whether same was relevant for purposes of determination of the appeal in this case?
   
9. Can the provisions of the amended Constitution apply retrospectively?
   

 

ISSUE 1, 2, 3 & 6

The literal rule of interpretation is to the effect that where the words of a statute are clear and unambiguous, they must be given their ordinary grammatical meaning. However, the golden rule of interpretation is to the effect that where the application of the plain grammatical interpretation of the provisions of a statute would produce absurd or unjust result, the courts may instead, apply the words with a secondary meaning which they are capable of bearing so as to avoid such absurdity or injustice. Indeed, the golden rule is consistent with the alternative construction approach, which is to the effect that where a statutory provision is capable of having two distinct meanings, one consistent with the statute read as a whole and the other capable of disrupting the smooth running of the system, the former construction is to be preferred and adopted.

Now, Sec. 180(2) CFRN (supra) provides that "subject to the provisions of subsection (1) of this section the governor shall vacate office at the expiration of a period of four years commencing from the date when –

1. in the case of a person first elected as governor under this constitution, he took his oath of allegiance and oath of office; and
   
2. the person last elected to that office, took the oath of allegiance and oath of office or would, but for his death, have taken such oaths."
   

Considering the facts of this case, an application of the literal rule would mean that the tenure of the governors started when they took the oath of allegiance and oath of office pursuant to their being validly elected as governors (i.e. pursuant to the re-run election since the first election was nullified). See the case of Obi v INEC (supra). Conversely, an application of the golden rule would mean that the tenure of the governors started when they took the oath of allegiance and of office pursuant to the very first election (the fact that it was later nullified and a re-run held notwithstanding). See the case of Ladoja v INEC (supra). The issue that naturally arises from the above is as to which of these two interpretations is consistent with a holistic reading of the relevant provisions of the Constitution because the alternative, purposive and liberal construction approaches on the interpretation of the Constitution requires that only the interpretation that is consistent with a holistic reading of the Constitution should be applied.

The relevant provisions of the constitution are as follows:

Sec. 14(2)(a) – "…sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority."

Sec. 180(1) – "Subject to the provisions of this constitution, a person shall hold the office of the governor of a state until –

1. when his successor in office takes the oath of that office; or
   
2. he dies while holding such office; or
   
3. the date when his resignation from office takes effect; or
   
4. he otherwise ceases to hold office in accordance with the provisions of this constitution."
   

Sec. 180(3) – "If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six months at any one time."

Sec. 182(1) – "No person shall be qualified for election to the office of the governor of a State if …

(b) he has been elected to such office at any two previous elections;"

Sec. 180(5) – "A person elected to the office of the governor of a state shall not begin to exercise the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed the oath of allegiance and oath of office prescribed in the seventh schedule of this Constitution."

It must be noted that the Supreme Court held that the latter of the two conflicting interpretations to Sec. 180(2) CFRN (i.e. that the tenure of the governors started when they took the oath of allegiance and of office pursuant to the very first election that was later nullified) was consistent with a holistic construction of all the above provisions since:

1. Adoption of the converse interpretation may lead to the perpetuation of the stay of a person in office as a governor if he could only succeed at an election and all subsequent re-run elections to be returned as winner by INEC despite the fact that all the elections are fraught with a fundamental vice which can and does lead to their nullification subsequently by the court.
   
2. That under no guise can the tenure of a governor be extended beyond the constitutionally guaranteed four-year term with an option of re-election for another single tenure of four years. This period starts to count from the very moment the person assumes the office of governor for the very first time (whether pursuant to a validly conducted or invalidly conducted election). Any break for whatever reason in between the period is not to be countenanced in the computation of the tenure except the break had the effect of permanently ousting the person from office and bringing in a new person.
   
3. That when an election is nullified, only the election qua election is affected. Every other thing done pursuant to same (including the oaths of office and oath of allegiance, and also all exercise of governmental powers) by the person whose election was nullified stands. Thus, the nullified election was voidable ab initio and not void ab initio.
   

The above reasoning by the apex court appears to be the correct position if the following points are considered:

1. An election, prior to its nullification, is not void. Since the election is presumed valid until set aside, it follows by parity of reasoning that that valid election gives the oath of allegiance and oath of office credence. This oath of allegiance and oath of office is a condition precedent to the acts of the governor which still remain valid even after his elections has been nullified. See the case of Balonwu v Gov. of Anambra State. It follows that this oath that conditions the acts must necessarily be alive if the acts still remain alive after the nullification. Conversely, if the acts while in office were to be dead, then the oath will equally be dead (though this is not the case here since the acts are valid).
   
2. By the provisions of the Constitution namely Sections 181(1) & 191(1), the
   taking of the oath of allegiance and oath of office simpliciter cannot guarantee a person's enjoyment of a four year tenure. A person must have been "first elected" consequent upon which the oath is administered. In essence, being "first elected" coupled with the oath of allegiance and oath of office is what guarantees a four year tenure. A person whose election is nullified and who subsequently wins the re-run election ordered by the court does not qualify as a person "first elected" on the basis of the re-run election. He only qualifies as a person "first elected" via the nullified election, the nullification notwithstanding. From the foregoing, the second oath of allegiance and oath of office administered after the re-run election, since it is not coupled with being "first elected", cannot guarantee a four year tenure in office.
   
3. The decision in Ladoja v INEC (supra) applies in the instant case in that it is not compulsory that a governor must enjoy an unbroken tenure of four years. It is immaterial that something occurs which temporarily keeps the governor out of office for a period of time. Since the previous oath still subsists, his tenure continues to run from the date he swore to those oaths until the expiration of four years. The tenure of a governor cannot and should not under any guise be extended beyond the time provided for by the Constitution. The Constitution does not insist on an unbroken tenure. However, this does not ipso facto mean that a governor's tenure may be predicated on two different elections, whether or not one is invalid as that issue remains a moot point.
   

Laudable as the above reasoning may seem, it is however submitted that this is not actually consistent with a holistic reading of all the relevant provisions above, in the light of generally established principles of law under Nigerian jurisprudence. The following points must be noted:

1. An act may be set aside by the courts either on the ground that it was void ab initio, or that it was voidable. Once such an act is set aside, it becomes a nullity. When a thing is a nullity, it has no legal consequences and binds no one under any circumstance.
   
2. All subsequent acts purportedly predicated on such an act so declared void would also collapse (whether or not such subsequent acts were regularly done). However, as an exception to the above rule, the legislature may, through the vehicle of a statutory provision and on grounds of public policy, deem such subsequent acts as having been validly performed.
   
3. An apt example is the position under Sec. 39(1) - (3), CAMA, Cap. C20, LFN, 2004. Under those provisions, Sec. 39(1) outrightly prohibits companies from engaging in ultra vires transactions and thus, they are void. However, by Sec. 39(3), if the ultra vires act has been completed and wholly performed, it shall not be declared invalid. All executory (i.e. yet to be completed ultra vires transactions) are clearly unaffected by Sec. 39(3) and are thus invalid.
   
4. Another example is the position under public international law. Art. 2(4), UN Charter prohibits the use of force against the sovereignty of any state. No rights (e.g. claim over the territory of the state) can be derived from such a void act. However, in a bid to prevent chaos and anarchy in the international order, where a substantial number of states recognize the claim, it is thereby validated, even though the U.N Security Council and General Assembly may yet sanction the offending state.
   

In view of the above, can the position under our electoral laws be any different? It is submitted that the answer is definitely in the negative. Clearly, the term void when applied to an election can mean nothing other than the fact that as a general rule, no legal consequences can flow from that exercise. Indeed, everything done pursuant to that election (including the oaths sworn and any exercise of governmental powers), "ordinarily" ought to be invalid. Put differently, if the election is invalid, the oath is invalid and if the oath is invalid the acts done ordinarily, ought to be invalid. However, for reasons of public policy, Sec. 143, Electoral Act, 2010 as interpreted by the apex court in Balonwu v Gov. Anambra State (supra), deems valid all acts of the person in the exercise of the functions of the office of the governor. But it must be noted that applying the expressio unis est exclusio alterius maxim of interpretation, only the particular thing mentioned (i.e. acts of the person while in office) is saved. Every other thing not mentioned is excluded and thus collapses with the annulled election. By Sec. 185(1) CFRN (supra), it is clear that an elected governor cannot start performing the functions of his office until he has sworn the oaths of office and allegiance. It is unarguably true that the oaths are pre-conditions to the exercise of the powers of the office of a governor and thus, are not acts done in exercise of the functions of the office of the governor. It therefore follows by parity of reasoning, just like day follows night, that whereas the latter is validated by the above statutory provision, the former (i.e. oaths) must collapse with the annulled election, since it was not expressly mentioned in that provision.

This view is in tandem with the reasoning of the Court of Appeal per Garba JCA in this case, that a person who was not validly elected cannot validly subscribe to the oaths of office and allegiance. It then follows that a person cannot be said to be the "first elected person under this Constitution" as stipulated in Sec. 180(2), unless he was validly elected in accordance with the provisions of the Constitution and the Electoral Act. The term "last elected person under this condition" will invariably refer to the situation flowing from Sec. 181(2) where both the governor and deputy governor elects die or are unable to assume office before the inauguration of the House of Assembly. It is submitted that in such a case, anyone who emerges the winner of the election to be conducted becomes the last elected person whose tenure would start from the date the deceased governor and deputy governor elects took the oaths or would have taken them but for their death.

Since a valid election is a pre-condition for the validity of the requisite oaths, and validly sworn oaths are one of the pre-conditions for the exercise of the functions of the office of a governor, it follows that the former of both conflicting interpretations, which is to the effect that tenure of the governors started when they took the oath of allegiance and oath of office pursuant to their being validly elected as governors (i.e. pursuant to the re-run election since the first election was nullified) is more consistent with a holistic reading of all the relevant provisions and established principles of law under Nigerian jurisprudence. Therefore, invalid oaths (i.e. oaths of allegiance and office sworn pursuant to an invalid election) cannot form the basis for the computation of the tenure of a governor, otherwise, there will be no need for another oath after the re-run elections.

It is clearly illogical and unacceptable to assert that the tenure of a governor can be predicated on two different elections, let alone a situation where one is invalid and the other valid, all in justification of the reasoning that the Constitution does not insist on an unbroken tenure. If a valid election is a pre-condition to the taking of valid oaths and by Sec. 185(1) CFRN (supra), such oaths are conditions precedent to the exercise of the functions of the office of a governor, it follows that without a valid election there is no tenure such that a governor's tenure starts upon a valid election and the fulfillment of all other conditions precedent to the exercise of the functions of that office. The invalid election is useless for all intents and purposes though the harsh consequences of this position is mitigated as stated above on policy grounds.

It follows that the decision in Ladoja v INEC (supra) is inapplicable to the present case. In that case, the temporary removal of Ladoja from office was predicated on an illegal impeachment. The consequence of the declaration of the impeachment as void ab initio is that at the material time, he was never impeached and was at all material times the de jure governor. If this is so, it follows that his tenure was not halted by the purported impeachment as to warrant an extension covering the period of the impeachment. In the instant case, the implication of the declaration that the first election is a nullity is that the respondents were never validly elected as governors and were thus never de jure governors as opposed to Ladoja's case. This reasoning is consistent with the decision in Obi v INEC (supra). Thus, they became validly elected governors only after they won the re-run elections. Clearly, the ratio in Obi's case is apt and was applicable.

 

ISSUE 4

It must also be stated that the decision of the Supreme Court in Labour Party v INEC is quite inconsistent with that given by the same court in the present case. In Labour Party v INEC (supra), it was unequivocally stated that the law regards whatever was purportedly done as not having taken place at all. In the eyes of the law, the election was void ab initio such that the re-run election ordered is in essence, a fresh election. In the instant case, the Supreme Court unequivocally stated that an election which was later nullified was only voidable and not void. From the above, it follows that the apex court is guilty of approbation and reprobation (an act which the law frown at).

 

ISSUE 5

From the provisions of Sec. 185(1) CFRN (supra), it is crystal clear that a person elected as governor cannot start performing the functions of his office until he has declared his assets and liabilities and swears to the oath of allegiance and oath of office. Thus, they are conditions precedent to the valid exercise of the functions of the office of the governor. Indeed, the sequence of events ought to be this: An election – declaration of assets and liabilities – oaths of allegiance and of office – assumption of office.

 

The first three events are conditions precedent to the exercise of the functions of the office of the governor hence, the Constitutional characterization of the last out of the three (i.e. the swearing-in ceremony) as the reference point for computation of the tenure of a governor. "It is therefore the declaration and oaths that ushers in the governor into office" per Adekeye JSC. If the above conclusion as reached by the learned Justice is correct, what then is the basis for her decision that these events are mere ceremonies or formalities that are secondary to the tenure or functions of the office of a governor?" The Constitution itself has made these events a primary condition to be fulfilled before the governor can function as a governor, and has also dictated that they form the reference point for purposes of computation of his tenure per Onnoghgen JSC. Unless the Justices of the Supreme Court did set out to contradict themselves in this case, it is humbly submitted that the decision of Adekeye JSC does not represent the law on this point. However, this view of Adekeye JSC on the issue may be regarded as obiter dicta, since it was a mere passing remark, having adopted the reasoning and conclusions as contained in the lead judgment including the orders made therein as hers.

 

ISSUE 7

While interpreting the provisions of the Constitution, the Supreme Court came to the conclusion per Onnoghen JSC that, "From the totality of the relevant provisions of the 1999 Constitution including Sec. 180 (1-3) and 182(1)(b), a person first elected as governor of a state shall vacate his office at the expiration of a period of four years commencing from the date he took the first oath of allegiance and oath of office, though he could be re-elected for another tenure of four years giving him a maximum two tenures of eight years. No person elected under the 1999 CFRN can remain in that office for a day longer". To further buttress this point, the learned Justice stated that this time was as fixed as the 'rock of Gibraltar'. How true is the above assertion?

It is trite that in the construction of a statutory provision, the entire statute is to be read as a whole. Indeed, a community reading of Sec. 180(1) & (2), and 191(1) & (2) CFRN (supra) reveals the following:

1. That Sec. 180(2) which fixes the time limit at four years is subject to the provisions of Sec. 180(1). This means that the provisions of the former will override the latter on any point of inconsistency.
   
2. That by Sec. 180(1), a governor shall hold office until his successor takes the oath of that office. Thus, any event that prevents the emergence of a successor before the expiration of the four years (e.g. failure to hold elections), or which prevents the successor in office from swearing to the oath of allegiance and oath of office (e.g. bodily or mental incapacity) will definitely have the effect of extending the stay of the incumbent governor beyond four years.
   
3. That by Sec. 191(1), The deputy-governor of a state shall hold the office of governor of a state if the office of governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with Sec. 188 & 189 of the Constitution. Such a person is definitely not a "person first elected under this Constitution" as envisaged by Sec. 180(2)(a). Thus, upon completion of the tenure of the deceased or incapacitated governor, the person is entitled to contest fresh elections, with an option of re-election.
   
4. That by Sec. 191(2), where any vacancy occurs in the circumstances mentioned in Sec. 191(1) and during that period, the office of deputy-governor is also vacant, the Speaker of the House of Assembly of the state shall hold the office of governor of the state for a period of not more than three months during which elections shall be conducted. Indeed, the Speaker is not barred from contesting as candidate in that election. The Speaker or any other person who emerges the winner of the election is definitely not a "person first elected under this Constitution" as envisaged by Sec. 180(2)(a). Indeed, the person shall hold office only for the unexpired term of office of the previous governor. Clearly, upon expiration of that tenure, nothing prevents the person from now contesting fresh elections and if he wins, he becomes a "person first elected under the Constitution" and is thereby entitled to a tenure of four years with an option of re-election. Thus, the tenure is not as fixed as the rock of Gibraltar after all.
   

However, it is arguable that the assertion about the tenure being fixed like the rock of Gibraltar is only relevant for purposes of preventing the employment of the Constitution to attain the unconstitutional end of a person remaining in office in perpetuity. It does not apply to other instances where unforeseen circumstances affect the tenure of a governor.

 

ISSUE 8

The Supreme Court per Onnoghen JSC stated thus: "It is not in doubt that the lower court was the final court in governorship election petition matters and that its decision on such matters binds the election petition tribunals and courts below it in the hierarchy of courts. The above notwithstanding, this court, the Supreme Court of Nigeria, is not bound by the decisions of the lower court in matters where that court is the final court of appeal as this court is the final court in the land whose decisions are binding on all and sundry." What is the real import of this statement?

It simply means that the decisions of the Court of Appeal are not final of governorship election petition matters such that their judgments can be pronounced upon by the Supreme Court. It is trite that by Sec. 246(1) & (3) CFRN (supra) the decisions of the Court of Appeal on such matters are final. This simply means that it is binding on all persons and authorities. The Supreme Court cannot be more powerful than the Constitution. Indeed, by Sec. 1(1) & (3) CFRN (supra), the above opinion of the Supreme Court is null and void to the extent of its inconsistency with the provisions of the Constitution.

Moreso, it is trite that the only way the Supreme Court can assume jurisdiction to review and pronounce on a judgment of the Court of Appeal (i.e. in those cases where an appeal from the latter can lie to the former) is by way of an appeal properly brought before it based on that judgment. Otherwise, the Supreme Court lacks jurisdiction to go about picking holes and pronouncing on decisions of the Court of Appeal when there is no valid appeal from those decisions to it.

However, it must be emphasized that the pronouncement by the Supreme Court on this issue is supportable if they meant that the rationes expressed in decisions of the Court of Appeal in such cases are not binding on the apex court, the Supreme Court being the final and Supreme Court. In the instant case, it is submitted that the Supreme Court lacked jurisdiction to pronounce on a decision of the Court of Appeal with relation to the annulment of the first election (even if it could) since there was no appeal to it from that decision.

 

ISSUE 9

The Supreme Court rightly held that the new amendment is not relevant in determining this case. This is because the Constitution, like any other law, does not have a retrospective effect but operates prospectively as held in Olaniyi v Aruyehum. This proposition is correct since in modern times, laws are not made to have a retrospective effect but are created to take care of new situations rather than situations overtaken by events unless the contrary is expressed.

 

JUDICIAL PASSIVISM OR JUDICIAL ACTVISIM: AN IRRECONCILIABLE CONCLUSION

There has been a vociferous and unending controversy as to whether the power of the court begins and ends with the interpretation of law. The unrepentant exponents of judicial positivism argue that by the ancient doctrine of separation of powers, it amounts to usurpation of legislative functions for the court, under the guise of interpretation, to enact, re-write, amend, change, expand, add, subtract or insert what the law-maker failed to insert, as the statute must not be extended beyond its crude and proper limits in other to fill lacuna in the law to meet the 'perceived' justice of an individual case. If there is a gap in a statute, the proper remedy lies in a legislative amendment.

On the contrary, the protagonists of judicial activism ceaselessly maintain that law-making is an inherent and inevitable part of the judicial process. Thus, even though a judge is concerned with the interpretation of a statute, there is a scope for him to develop and amend the law, after all, it is he that infuses life and blood into the dry skeleton of the statute as enacted by the legislature and creates a living organism out of it to appropriately meet the needs of the expanding society. While the language of the law does not change, the changing circumstances in the progressive society for which it is designed dictates that it yield to fuller imports.

In the final analysis, the relevant question remains, in our indigenous legal system, which should hold sway? Is it judicial activism of judicial passivism? However, it must be noted that in choosing between the two approaches, the judge must take into account the present political, social, economic, cultural and other physical factors which may directly or indirectly affect the Nigerian polity. Be that as it may, the judge should not innovate at pleasure but must draw his innovation from consecrated principles and in accordance with the spirit and letters of the law. Thus, whenever a voyage is undertaken to decipher the spirit and intendment of any enactment, the rule of interpretation which best ensures justice should be adopted. This is because, at every given time, the purpose of law is the attainment of justice.

Thus, in any matter to be decided upon by any court, it should be ensured that the law goes side by side with the justice of the case. To achieve this end, it must also be constantly borne in mind that the spirit of the law does not dwell in technicalities, formalities or bare words. The law exists for justice and inflexibility may defeat this end. Whenever there is a contest between law and justice, our courts are enjoined to make the latter prevail by all means, after all, this is the ultimate reason for the evolution of equity.

CONSTITUTIONAL DEMOCRACY AND LOCAL GOVERNMENT TRANSITION COMMITTEES: AN APPRAISAL OF THE DECISION IN BARR JEZIE EKEJIUBA v GOVERNOR OF ANAMBRA STATE & 2 ORS^*

 

ABSTRACT:

This paper reviews the constitutionality of the Local Government Transition Committees set up by some states in Nigeria. This has become imperative in view of the agitations from various parts of the country both for and against such committees. Several judicial pronouncements have also emerged on the issue. This includes that recently made by the Anambra State High Court in the above-stated case, which forms the background of this work. This paper argues that the current constitutional framework operational in Nigeria does not recognize such bodies and thus they should be dissolved, since their creation is unconstitutional.

 

BACKGROUND:

By an Originating Summons dated 6^th December 2010, the plaintiff sought, inter alia, for a declaration that in view of S. 1(2) and 7(1) of the 1999 C.F.R.N. (as amended), it is illegal and unconstitutional for the Governor of Anambra State or any of the defendants to appoint, deal with or recognize Local Government Transition Committees or Sole Administrators or Heads of Local Government Administration (as presently in place) or whatever name so called as the system of Local Government in any or all of the 21 Local Government Areas of Anambra State.

 

The case of the plaintiff was that considering S. 1(2) and 7(1) of the C.F.R.N. (as amended), the governing of the 21 Local Government Areas in Anambra State by any person or group of persons appointed by the defendants is unconstitutional, null and void. He also contended that the Anambra State House of Assembly has no competence to make any law empowering the defendants to make any such appointment. The defendants contended that the appointment of Local Government Transition Committees was made pursuant to the Local Government (Amendment) Law of 2002 and Local Government (Amendment No. 4) Law of 2010, which are laws made by the Anambra State House of Assembly in exercise of the legislative powers conferred on it by the constitution and is therefore valid.

 

In his judgment, the learned trial judge considered the provisions of the Local Government (Amendment) Law of 2002, S. 3 of the Local Government (Amendment No. 4) Law of 2010, S. 4(7) and S. 12 of Part II, 2^nd Schedule to the 1999 C.F.R.N. (as amended) and held that the appointments of Local Government Transition Committees or Caretaker Committees or Heads of Local Government Administration (as is presently in place) or whatever name so called as the system of Local Government in the 21 Local Government Areas of Anambra State is in accordance with the Local Government (Amendment) Law of 2002 and Local Government (Amendment No. 4) Law of 2010. These laws are not inconsistent with S. 1(2) and 7(1) of the 1999 C.F.R.N. (as amended) or any other section of the Constitution.

 

CONSTITUTIONAL DEMOCRACY:

The essence of governance to a great extent is to achieve the ultimate good of the people governed. So far, no form of government practiced in the organization of human societies has attained this goal as much as one limited under a constitution that has the force of supreme overriding law. Basically, this form of government, otherwise recognized as constitutional democracy, connotes a system of government based on popular sovereignty in which the structures, powers and limits of government are set forth in a constitution.

 

Professor B.O Nwabueze (S.A.N.), who has subjected the concept of constitutional democracy to considerable thought, states that the concept was established to limit the arbitrariness inherent in government and to ensure that its powers are used for public good. In Nwabueze's view,

Government is a creation of the constitution. It is the constitution that creates the organs of government, clothes them with their powers, and in so doing delimits the scope within which they are to operate. A government operating under such a written constitution must act in accordance therewith; any exercise of power outside the constitution or which is unauthorized by it is invalid. The constitution operates therefore with a supreme, overriding authority.

By contrast, government in a regime of personal rule is uncertain and problematic because it is largely contingent on men, upon their interests and ambitions, their desires and aversions, their hopes and fears and all other predispositions that the political animal is capable of exhibiting and projecting upon political life, and further because it is restrained, to the extent that it is restrained at all, only by private tacit agreements, prudential concerns and personal ties - and dependencies, rather than by public rules and institutions. Thus in constitutional democracy, the constitution is the source of power wielded by government over people. Under a written constitution as supreme law, government has no more powers than are granted to it, either expressly or impliedly, by the constitution, and any exercise by it of power not so granted to it is unconstitutional and void. The above principles are enshrined in the provisions of S. 1(1) and (3) of the C.F.R.N. (as amended) which provides as follows:

This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria… If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.

 

Elucidating the import of the above provision to fatality, the apex court, in A.G-Ondo State v A.G-Federation & 35 Ors, stated that "the Constitution is an organic instrument which confers powers and also creates rights and limitations. All agencies of government …stand in relationship to the Constitution to the extent it permits of their existence and functions… In the Constitution of the country, all the provisions for the governance of the Nigerian nation have been set out." Indeed, Niki Tobi J.C.A. (as he then was), in Phoenix Motors v N.P.F.N.B, opined that "the Constitution is the highest law of the land. All other laws bow or kowtow for salvation before it. No law which is inconsistent with it can survive; that law must die for the good of the society."

 

LOCAL GOVERNMENT SYSTEM UNDER THE 1999 CONSTITUTION:

The concept of local government in Nigeria is traceable to S. 3(6) of the C.F.R.N. (as amended) which provides that "there shall be 768 Local Government Areas in Nigeria as shown in the second column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule." S. 7(1) of the C.F.R.N. (as amended) provides that "the system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils."

 

In Barr Anthony Towoju & Ors v Governor of Kwara State & Ors, it was held that where the words used in the Constitution are clear and unambiguous, the natural grammatical and ordinary meaning should be ascribed to them. This is in view of the fact that the object of interpretation of the Constitution or any other statute is to discover the intention of the law-maker, and this intention is only deducible from the language used. Indeed, it is trite law that a statute should be construed as a whole and should be given an interpretation consistent with the object and general context of the entire statute. Thus, in arriving at the true import of the above provisions, other relevant provisions must also be considered. S. 4(1) of the C.F.R.N. (as amended) provides that "the legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives." S. 4(6) provides that "the legislative powers of a State of the Federation shall be vested in the House of Assembly of the State." Paragraph 11 of Part II of the 2^nd Schedule to the Constitution provides that "the National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council." Paragraph 12 of Part II of the 2^nd Schedule to the Constitution provides that "nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any made by the National Assembly."

 

Juxtaposing the relevant provisions of the Constitution above stated, and more especially considering the meaning of the term 'guarantee' as given by the Blacks' Law Dictionary, (i.e. the assurance that a contract or legal act will be performed), the natural meaning to be ascribed to S. 7(1) of the C.F.R.N. (as amended) is that the 768 Local Government Areas created by S. 3(6) of the Constitution shall always be governed by democratically elected leaders. The Constitution pledges itself by giving the assurance that such elections will always be held. To this end, paragraph 11 and 12 of Part II of the 2^nd Schedule to the Constitution authorizes the legislature (i.e. both the National Assembly and the State Houses of Assembly) to employ the legislative powers conferred on them by S. 4 of the Constitution to make laws towards fulfilling this solemn pledge of always providing, at all times, a democratically elected leadership for the local government councils. This solemn pledge is constitutionally sealed in S. 1(2) of the C.F.R.N. (as amended) which provides that "the Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution." This interpretation is reinforced by the judgment of the Court of Appeal in the case of Barr Enyinna Onuegbu & 26 Ors v Attorney General of Imo State & 3 Ors, which declared the action of the Governor of Imo State in purporting to dissolve the democratically elected Local Government Councils in the State before the expiration of their constitutionally guaranteed tenure as illegal and unconstitutional. In a unanimous judgment, the court which was presided over by Justice Uwani Abbaji, stressed that the governor lacked the powers to sack elected governments at the third-tier of governance in the state, and also nullified the appointment of Transition Committee Chairmen by the governor to replace the sacked council chairmen.

 

Indeed, the legislative powers provided for under S. 4 of the Constitution is not a blanket power but is strictly to be applied towards attaining constitutional objectives, in view of the rule that the legislature has no inherent powers, to make laws outside the clear provisions of the Constitution. Indeed, any attempt by the legislature to employ the powers conferred on it under S. 4 of the Constitution to make a law that will under any circumstance permit the local government councils to be governed otherwise than by democratically elected leaders will be inconsistent with S. 7(1) of the Constitution and to that extent void.

 

BARR JEZIE EKEJIUBA v GOVERNOR OF ANAMBRA STATE & 2 ORS REVIEWED:

Even at risk of prolixity, it will be recalled that the plaintiff in the case under review had called on the High Court of Anambra State to interpret the provisions of S. 1(2) and 7(1) of the 1999 C.F.R.N. (as amended) and thereon pronounce on the constitutionality or otherwise of the appointment of Local Government Transition Committees to head the 21 Local Government Areas in Anambra State. The court, coram Hon. Justice H. O. Ozoh, held that the appointment was validly done under the Local Government (Amendment) Law of 2002 and S. 3(A)(2) of the Local Government (Amendment No. 4) Law of 2010 which provides thus:

"Where an emergency or any other situation arises which makes impossible the holding of local government elections within the period stipulated under the principal as amended, the Governor shall, in respect of each Local Government Area in the state, nominate and forward to the House of Assembly a list of not less than five (5) persons to be considered for appointment into a Transition Committee, provided that such persons are qualified to vote or be voted for in that Local Government Area."

 

The court also held that this law was made by the Anambra State House of Assembly under the powers conferred by S. 4(7) and paragraph 12 of Part II of the 2^nd Schedule to the Constitution and that these laws are not inconsistent with S. 1(2) and 7(1) of the Constitution or any other section thereof.

 

Laudable as the logic in this decision may seem, it is our humble submission that the learned trial judge erred in law when he failed to pronounce on the import of S. 1(2) and 7(1) of the Constitution throughout the 11-page judgment. Rather, the court misdirected itself by embarking on an a voyage of its own to interpret S. 4(7) and paragraph 12 of Part II of the 2^nd Schedule to the Constitution and the provisions of the Local Government (Amendment) Laws.

 

It is trite law that though Schedules are useful in interpretation of statutes, they cannot override the express provisions in the main part of the Statute. Moreso, by virtue of S. 1(1) & (3) of the Constitution, any other law that is inconsistent with the Constitution is null and void. If the learned trial judge had adverted his mind to this rules, perhaps he would have realized that any purported application of the legislative powers conferred by S. 4 to enact a law under paragraph 12 of Part II of the 2^nd Schedule to the Constitution in a manner inconsistent with the express provisions of S. 1(2) and 7(1) of the Constitution renders the law so enacted null and void. This is the full import of the dictum of Hon. Justice Niki Tobi in the Phoenix Motors' case. To hold otherwise means that, without prejudice to the provisions of S. 305 of the Constitution which deals with the proclamation of a state of emergency, the National Assembly is entitled to employ the legislative powers conferred on it by S. 4 of the Constitution, to enact a law under paragraph 22 of Part I of the 2^nd Schedule to the Constitution, authorizing the President, when it appears impossible to hold Governorship elections (whatever that might mean), to appoint a person as Governor provided the person is qualified to vote and be voted for in that state. This clearly cannot be a true reflection of the General Will of the people of Nigeria as codified in the Constitution.

 

CONCLUSION:

Constitutional government recognizes the necessity for government but insists upon a limitation being placed upon its powers. It is the antithesis of arbitrary rule, which connotes government conducted not according to predetermined rules, but according to the momentary whims and caprices of the rulers. The Nigerian State is predicated on the principle of constitutional democracy, one of the postulates of which is the doctrine of constitutional supremacy. All persons, including the agencies of government must kowtow in obeisance to the dictates of the Constitution. Since the Constitution does not recognize the concept of Local Government Transition Committees as is currently in place in most states of the Federation, a call is hereby made for the immediate dissolution of all such illegal bodies. Again, the legislature must refrain from exercising its law-making powers in a manner inconsistent with the Constitution, considering the fact that the principle of legislative supremacy is unknown to the Nigerian legal system. The courts must also be vigilant and not hesitate to exploit any opportunity that presents itself through the cases to insist that the dictates of the Constitution must be sanctimoniously obeyed. This is the only antidote against arbitrariness, impunity and anarchy for any society.