James v. Governor Of Edo State & Ors:Examining The Decision of the Court of Appeal in the Light of the 1999 Constitution of the FRN (As Amended)

By Uduak Alphonsus Ikono

Abstract

The Judgement in the case of Charles Apiloko James V. the Governor of Edo State & Ors. (2021) LPELR – 54203(CA), delivered by the Court of Appeal, Benin Judicial Division, on the 18^th day of May 2021 has sparked waves of debate. The fundamental issue that the Court sought to determine was: whether a verbal order made by a Governor restricting movement through the use of motorcycles in some parts of Edo State is justifiable under Section 41(2) of the 1999 Constitution of Nigeria (as amended). The Court reasoned that a verbal order made by a Governor or by the Executive Arm of Government at whatsoever level in Nigeria, restricting movement through the use of motorcycles cannot on its own be justifiable under Section 41(2) of the Constitution of Nigeria (as amended), if the verbal order was not made or issued pursuant to an existing law which is justifiable under Section 41(2) of the 1999 Constitution of Nigeria (as amended). This paper examines the decision of the Court as it relates to the provisions of the Constitution.

Keywords: Constitution of Nigeria, right to freedom of movement, James V. Governor of Edo State, Court of Appeal,  examining, decision.

1. Introduction

In every human society, there is always a supreme entity whose provisions are undeniably final. In contemporary Great Britain, the Parliament is regarded as supreme [1], whereas in Nigeria the Constitution is regarded as supreme [2]. Dicey emphatically delineated on this when he wrote, rather comically, that “it is a fundamental principle of English lawyers that Parliament can do everything but make a woman a man, and a man a woman”[3]. The concept of supremacy of the Constitution confers the highest authority in a legal system on the Constitution[4].  Dragne[5] describes the Constitution vis–a–vis its supremacy as the law that “is at the top of the pyramid and it is the source of all other documents and legal regulations.’’ Constitutional supremacy is therefore the position of the Constitution having superior or greater power or authority.

The foundation of the supremacy of the Nigerian Constitution is traced to Section 1(1) which provides that: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” The legal implication of the foregoing is that the provisions of the Constitution are binding on all authorities and persons no matter how high or low. This position accords with the arguments of two constitutional authors, namely Evans[6] and Dixon whose works provide central reasons for and great insight into the binding powers of the Constitution.

In demonstrating the supremacy of the Constitution and its binding nature, a cursory x–ray of the cases of Attorney – General of Lagos State V. Attorney – General of the Federation[7] and Inakoju V. Adeleke[8] is apposite. In the former case, the Court declared that the action of withholding the federal allocation to the Lagos State by the Federal Government of Nigeria was contrary to Section 162(1) of the Constitution and therefore unconstitutional, null and void. In the latter case, some members of the Oyo State House of Assembly purportedly removed the Governor of the State. However, they failed to follow the provision of Section 187 of the Constitution. The Supreme Court declared their action as unconstitutional, null and void.

• The Blue Pencil Doctrine and Inconsistency Rule

As a common law jurisdiction, Nigeria enjoys the blue pencil doctrine[9] enshrined in the Constitution. Accordingly, “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”[10].

The Court of Appeal applied this rule in the case of Inspector – General of Police V. ANPP[11]. The Court declared as void and contrary to the fundamental rights to freedom of expression and association under Sections 39 and 40 of the Constitution, the provisions of the Public Order Act which provided to the effect that a permit must be obtained from the Governor before people could assemble in public.

• The Fact of the  Case under Review

The 1^st Respondent, the Governor of Edo State on 11/06/2013, issued a verbal order banning the use of motorcycles in Oredo, Egor, Ikpoba Okha Local Government Areas, Oluku and Ekosodin areas of Ovia North East Local Government Area, and Eyean area of Uhunmwonde Local Government Area. He further ordered law enforcement agencies, namely the Edo State Police, Edo State Security Services, the Nigerian Security and Civil Defence Corps (Edo State), and the Nigerian Army (4 Mechanised Brigade Benin City) to arrest, confiscate and prosecute any person in violation of the verbal order.

On 17/06/2013, the 1^st Appellant was on his way to work on his duly licensed motorcycle when he was accosted by some security officers and was compelled to stop, and his motorcycle was almost seized on the ground that he violated the verbal order made by the 1^st Respondent. He was ordered to ride his motorcycle to the police station, but he zoomed off and returned to his house. The 2^nd Appellant was a marketer who employed the services of duly licensed commercial motorcycles to enable him convey his goods to his customers. On 20/06/2013, he was on board a commercial motorcycle to supply goods to his customers, but was stopped by some security operatives who seized the said motorcycle on the ground that they were in violation of the verbal order issued by the 1^st Respondent.

The 1^st and 2^nd Appellants thereafter instituted an action at the Federal High Court, Benin Judicial Division, claiming inter alia: (a) a declaration that the 1^st Respondent’s action of verbally making a ban on the use of motorcycle from plying the roads in those areas was ultra vires the powers of the 1^st Respondent and constituted a violation of the Appellants’ right to fair hearing and freedom of movement and was therefore unconstitutional, illegal, null and void; (b) a declaration that the action of the agents of the Edo State Government enforcing the 1^st Respondent’s verbal ban on the use of motorcycles with the threat to confiscate and destroy the 1^st Appellant’s motorcycle constituted a gross violation of the 1^st Appellant’s right to fair hearing and freedom of movement.

The Federal High Court, in its ruling, entered judgment against the Appellants and therefore dismissed their claims against the Respondents for lacking in merit. Not satisfied with the decision of the trial court, the Appellants in suit N0. CA/B/341/2014 appealed against the judgement at the Court of Appeal seeking the setting aside of the judgment.

• Decision of the Court of Appeal

The Court of Appeal, while upholding the appeal, granted the reliefs of the Appellants in part. The Court declared that “the Governor’s verbal ban on the use of Motorcycles was unconstitutional, illegal, null and void, and of no effect whatsoever”[12]. Furthermore, the Court set aside the Governor’s verbal ban on the use of motorcycles, and went ahead to award the sum of Three Hundred and One Thousand Naira  (N301, 000) as compensation and costs in favour of the Appellants against the Governor.

• Ratio Decidendi

The rationale for the judgement by the Court of Appeal was premised on the issue: whether the right to freedom of movement under Section 41(1) of the 1999 Constitution of Nigeria (as amended) can be curtailed by a verbal order or executive order made by a Governor pursuant to an existing law that is justifiable under Section 41(2) of the 1999 Constitution of Nigeria (as amended). Put it differently, can a verbal order or an executive order made by a Governor pursuant to Section 41(2) of the Constitution of Nigeria curtail people’s right to freedom of movement provided under Section 41(1) of the Constitution of Nigeria?

According to the Constitution, Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto[13]. It is therefore beyond disputation that the right to freedom of movement – like other fundamental rights – is inherent in all human beings, and so cannot be denied[14]. However, the right to freedom of movement may be restrained under certain conditions. These exceptions are listed in Section 41(2) of the Constitution. A reproduction of part of sub-Section (2) is relevant here for a better understanding of the reasoning of the Court of Appeal. Accordingly:

            Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society-

Imposing restrictions on the residence
 or movement of any person who has
committed or is reasonably suspected
to have committed criminal offence in
order to prevent him from leaving
Nigeria…

In the view of the Court, a verbal order or even an executive order at best cannot be considered justifiable under Section 41(2) and cannot have the force of law to restrain the right to freedom of movement under Section 41(1). Where a verbal order or a written executive order is not made under or pursuant to an existing law, the issue of its validity under Section 41(2) of the Constitution does not even arise. In that case, the verbal order made by Governor of Edo State was not made pursuant to an existing law and therefore was unconstitutional, null and void. Without sounding repetitious, it is pertinent to reproduce part of the judgement of the Honourable Court for the purpose of emphasis. It reads:

….Now looking at the succinct provisions of
 Section 41(1) and (2)  of the Constitution of
 Nigeria, 1999 (as amended) what would
 reasonably be justified or justifiable in my
 view is not a verbal order or even at best a
 written executive order made by a Governor
 but written law made by the Legislature. Thus,
 neither a verbal order nor even a written
 executive order made by the Governor can on
 its own be justified or justifiable under Section
 41(2) of the Constitution of Nigeria, 1999
 (as amend), unless such a verbal order or
written executive order was made pursuant
to or by virtue of an existing law which is
justified or justifiable under Section 41(2)
of the Constitution of Nigeria, 1999
(as amended).

The Court went further to note that neither a ‘Verbal Order’ nor a ‘Written Executive Order’ nor ‘The Executive Arm of Government’ at whatever level of governance in Nigeria for that matter, restricting movement through the banning of the use of motorcycles for movement can on its own be justified or justifiable by reference to Section 41(2) of the Constitution of Nigeria, 1999 (as amended), if it was not made or issued pursuant to an existing law which is justified or justifiable under Section 41(2) of the Constitution of Nigeria, 1999 (as amend)

• Effect of a Verbal Order under Section 41(1) of the 1999 Constitution

The legal implication of a verbal order or a written executive order is that, for it to have the force of law, it must be made pursuant to an existing law. The existing law must be an Act of the National Assembly, a Law of a State House of Assembly or any subsidiary legislation. Thus, a verbal order or a written executive order not in compliance with this constitutional requirement is ab initio invalid, and has no force of law to proscribe an act as offence and to prescribe punishment thereto. This position of the law is further encapsulated in Section 36(12) of the 1999 Constitution which provides that:

…. a person shall not be convicted of a
criminal offence unless that offence is
defined and the penalty prescribed in a
written law; and in this subsection a
written law refers to an Act of the
National Assembly or a Law of a State,
any subsidiary legislation or instrument
under the provision of the law.

Where a verbal order or a written executive order is not tied to existing law, either an Act of the National Assembly or a Law of a State or any subsidiary legislation, “… it is ipso and ab initio invalid and if properly challenged must – debito justitae be set aside”{16}.

• Conclusion

The recent decision by the Appeal Court in the case of James V. Edo State Governor[17] has not only become a defining instrument in Nigerian constitutional jurisprudence but has created a paradigmatic position for judicial precedence and protection of fundamental rights.  If the 1999 Constitution of Nigeria must be viewed within Kelson’s binoculars of Grundnorm[18],  from where all laws and regulations draw their powers[19]; and if the courts are constitutionally entrusted with the powers to check the activities of governments and people in order to protect respect for people’s rights and fundamental liberties[20],  the “Grundnorm, then, is not something that can be changed… and the courts of the judges and the legislatures can at best reflect, rather than effect, a change in the Grundnorm.’’  [21]To this end, any law purported to operate or to stand on its own without drawing its powers from the Grundnorm or at least from an existing law which is also tied to the Constitution, is inconsistent with the Constitution and therefore void[22]. The verbal order made by the 1^st Respondent banning the use of motorcycle in some parts of Edo State with the penalty of confiscation and destruction of any offending motorcycle is not supported by any known law and therefore unconstitutional, null and void.

1.Albert Dicey, Introduction to the Study of the Law of the Constitution, 8^th ed. (Indianapolis: Liberty Fund,1982,) p.3.

2.Section 1(1) of the 1999 Constitution of Nigeria (as amended) contains the supremacy clause.

 3. Albert Dicey, Op. Cit. Note 1.

 4. Limbach, Jutta. (2001). “The Concept of the Supremacy of the Constitution”. The Modern Law Review. Vol.64, No.1. pp. 1- 10.

 5. Dragne, L. “Supremacy of the Constitution”. AGORA International Journal of Juridical Sciences. Vol. 1. No.4.pp. 38 – 41.

6. Simmons, Evans. (2004). “Why is the Constitution Binding? Authority, Obligation and the Role of the People”. Adelaide Law Report. Vol. 25. pp. 104 – 134.  

 7. Owen, Dickson. (1935). “The Law and the Constitution”. 51 Quarterly Law Review. pp. 570 – 590.

 8. (2007) S.C.

 9. This is a legal or constitutional feature in common law countries, where a court declares as void any parts of a contract that are inconsistent with the law. See generally Kumarasoorier, Thushanthinga. (2016). “How We Are Using The Application of “Blue Pencil Rule” in Illegal Contract”. International Journal of Business, Economics and Law. Vol. 10. No.4. pp. 1 – 6.

10. Section 1(3) of the Constitution.

11. (2007) – C. A.

12. Per His Lordship, Georgewill Biobele Brown, J. C. A.

 13. Section 41(1) of the 1999 Constitution of Nigeria (as amended).

 14. Simma, Bruno and Alston, Philip. (1988 – 1989). “The Sources of Human Rights Law: Customs, Jus Cogens and General Principles”. Australian Year Book of International Law. Vol. 5. No. 2. pp. 1 – 27. See also F. Dorwick, Fundamental Human Rights. (London: George Town University Press, 1996), p. 12.

 15. See the cases of Aiko V. Fagbemi (1961). All NLR 400; Paulson V. The State (2011) LPELR – 4875 (CA); and Hon. Hembe V. FRN (2014) LPER – 22705 (CA).

 16. Per His Lordship, Georgewill Biobele Brown, J.C.A.

17. Supra.

18.Rachuonyo, J. (1987). “Kelson’s Grundnorm in Modern Constitution: The Kenya Case”. McGill Law Journal. Vol. 20. No.4. pp. 416 – 430.

 19. Ibid.

 20.See Uwais, M. L. (2006). “The Evaluation of Constitutionalism in Nigeria:  the Role of the Supreme Court under the 1979 and 1999 Constitution”.  Nigerian Institute of Advanced Studies Inaugural Distinguished Fellows Lecture. See also Section 6 of the 1999 Constitution of Nigeria (as amended).

 21.Simmons, Evans, Op, Cit. Note 6.

 22.See Section 1 (3) of the 1999 Constitution.