HON. ANTHONY POPE DIKE & ORS V. THE GOVERNOR OF IMO STATE & ANOR
(2012)LCN/5693(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2012
CA/PH/445/2006
RATIO
APPEAL: ATTITUDE OF THE APPEAL COURT TOWARDS INTERFERENCE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
Where a Court trial reliably evaluates the evidence, oral or documentary and justifiably appraises the facts, it is not the business of the Appellant Court to substitute its own view for those of the trial Court. See Woluchem vs. Gudi (1981) 5 SC 291; Agbeje vs. Ajibola (2002) 2 NWLR (PT 750) 127; and Nwangwu vs. F.B.N. Plc (2009) ALL FWLR (PT 500) 712 at 739. PER UWANI MUSA ABBA AJI, J.C.A.
LEGISLATION: WHETHER INTERPRETATION ACT IS A STATUTE OF GENERAL APPLICATION
It should be noted that the Interpretation Act is a statute of general application, and therefore applies to all the states of the Federation, including Imo State. PER HARUNA SIMON TSAMMANI, J.C.A.
LEGISLATION: WHETHER GAZETTING IS A REQUIREMENT FOR EFFICACY OF A LAW
In that respect, since a bill of the State Assembly requires the assent of the governor by virtue of Section 100(2) of the 1999 Constitution (unless passed pursuant to Section 100(5) of the Constitution), the bill becomes Law the moment it is assented to by the governor. In the instant case, it is deemed that the Law No.9 of 2000 became Law on the date the Governor of Imo State assented to same.
The Gazetting of same is therefore not a requirement for the efficacy or validity of the law. See OGBORU v. UDUAGHAN (2011) 17 NWLR (Pt. 1277); H.D.P v. OBI (2011) 18 NWLR (Pt. 1278) Pg. 80. PER HARUNA SIMON TSAMMANI, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
MOJEED A. OWOADEJustice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria
Between
1. HON. ANTHONY POPE DIKE
2. NZE UGOCHUKWU ONUOHA
3. MR. PETER NWAIMO
4. CHIEF JOHN NWACHUKWU (JP)
5. PASTOR ISRAEL NJOKU
(for themselves and on behalf of members
of Umugama Village of Lorji, Aboh Mbaise,
except Chief Robert Nwosu, Chinwueze Nwosu and
Victor Madugha Njoku)Appellant(s)
AND
1. THE GOVERNOR OF IMO STATE
2. EZE STEPHEN UGORJIRespondent(s)
UWANI MUSA ABBA AJI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State sitting at Aboh Mbaise presided over by Hon. Justice U. D. Ogwurike, delivered on the 30th March, 2006.
The Appellants representing members of Umugama Village of Lorji in Aboh Mbaise Local Government of Imo State, as Applicants obtained the leave of the Lower Court to commence an application for judicial review claiming against the Respondents as follows:
(i) An order of certiorari removing to this Hon. Court for the purpose of being quashed that part of the Autonomous Communities Instrument published in Imo State Legal Notice No. 4 of 2003 creating the Lorji Nweke-Ukwu Autonomous Community.
(ii) An order of prohibition prohibiting the 1st Respondent from treating, dealing with or continuing to recognize the purported Lorji Nweke-Ukwu Autonomous Community as an Autonomous Community under the Traditional Rulers and Autonomous Communities Law No. 3 of 1999.
(iii) An Order of certiorari removing to this Hon. Court for the purpose of being .quashed the purported recognition of the 2nd Respondent as the Traditional Ruler of the purported Lorji Nweke-Ukwu Autonomous community.
(iv) An order of perpetual injunction restraining the 2nd Respondent from parading himself, either by action or use of title as the Traditional Ruler in Lorji Aboh Mbaise or elsewhere.
(v) And for any other order or orders as this Hon. Court may deem fit and proper in the circumstance.
The grounds upon which the application was anchored are:
(i) The 1st Respondent has no competence under Section 14 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 to create Autonomous Communities.
(ii) Umugama village of Lorji did not consent to being included in Lorji -Nweke-Ukwu Autonomous Community and Section 26 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 was not complied with before the creation of the new Autonomous Community.
(iii) The three villages arbitrarily lumped together in the Lorji Nweke Ukwu Autonomous Community do not qualify for Autonomous Community status under section 25 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999.
(iv) Sections 14 and 23 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 is unconstitutional and therefore void.
Both the 1st and 2nd Respondents filed Notices of Preliminary Objection to the application and hearing of the motion and the preliminary objections were consolidated with consent of the parties. Following submissions from respective learned Counsel, the Court delivered a considered Judgment on the 30th day of March, 2006. The Court dismissed the Preliminary Objection and the application for Judicial review, In dismissing the application, the Court held as follows:
“In the final result, I hold that the Governor has powers and the discretion pursuant to Law No. 3 of 1999 as amended to create Autonomous Communities and that Lorji Nweke Ukwu Autonomous Community created by the Governor and set out in the Autonomous Communities Instrument, Imo State Legal Notice No. 4 of 2003 was validly created and the Instrument in this regard validly made. This being the case, it is not necessary for this Court to consider the Issue of the quashing of the recognition of the 2nd Respondent as Traditional Ruler and the injunctive Order in that regard or the return of the 2nd Respondent’s staff of office and Certificate of recognition which are sought as consequential and ancillary reliefs.
The reliefs sought in this application are in the circumstance refused and this Suit is accordingly here dismissed…” (See pages 275 to 276 of the Record of Appeal.)
The Appellants are not satisfied with this decision and have brought this appeal vide a Notice of Appeal dated 22nd May, 2006 upon Ten (10) grounds of Appeal. (See pages 280 to 292 of the Record of Appeal.)
The Appellants’ brief of argument filed on the 10th January 2007 was settled by Chief M.I. Ahamba, SAN. Therein, Learned Senior Counsel distilled three (3) Issues for determination to wit:-
(i) Whether the creation of Autonomous Communities Instrument 2002 published as Imo State Legal Notice No. 4 of 2003 was competently made by the 1st Respondent, the Governor of Imo State.
(ii) Whether the Traditional Rulers, Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000 was in operation prior to 17th March, 2005 when it was published in the Imo State Official Gazette.
(iii) Whether the dismissal of the Appellants’ application for Judicial review was proper in law.
In the 1st Respondent’s brief of argument settled by S.E. Ibechem, Esq. Asst. D.P.P., MOJ, Imo State was deemed properly filed on the 6th June 2002 and therein learned Council adopted the Issues for determination as distilled by the Appellants.
In the 2nd Respondent’s brief of argument settled by Chief U.N. Udechukwu, SAN, filed on the 15th August, 2007, also adopted the Appellants Issues for determination.
At the hearing of the appeal on the 9th October, 2012, Learned Counsel for the Appellants, Mr. C. C. Okoroafor, Esq. adopted and relied on the Appellants, brief of argument filed on the 10th/1/2007 and his reply brief to the 2nd Respondent’s brief of argument filed on 23/4/2008 but deemed properly filed on the 2/3/2012 and urged the Court to allow the appeal.
The Learned Counsel for the 1st Respondent the Hon. Attorney General, Imo state adopted and relied on the 1st Respondent’s brief of argument filed on the 6/6/12 and urged the Court to dismiss the appeal. He adumbrated on the following issues:
1. The Executive powers of the Governor of Imo State to create Autonomous Communities. He submitted that Section 5(2)(b) of the 1999 Constitution as amended empowers the Governor to execute Laws passed by the State House of Assembly and that Section 3(g) of the Traditional Rulers (Amendment) Law No. 9 of 2000 confers on the Governor the power to create new Autonomous Communities or merge existing Communities and submitted that the Governor was right to create Lorji Nweke Akwu Autonomous Community.
2. The other issue he submitted is that under Section 100(1)(2) of the 1999 Constitution, a bill passed by the State House of Assembly becomes Law upon being assented to by the Governor and that subsequent publication or non publication of the said law in a gazette does not in any way affect the efficacy or the validity of the said law. That gazette is not a creation of law making. He also submitted that both Law Authentication Law Cap 73 laws of Eastern Nigeria 1963 and the Authentication Law 1980 Laws of Imo State were all promulgated prior to the 1999 Constitution and therefore takes effect subject to the provisions of the Constitution and where they are inconsistent with the said provisions of the Constitution, they become null and void. He urged this Court to dismiss the appeal.
S.C. Ifeakor, Esq. adopted and relied on the 2nd Respondent’s brief of argument as their argument in the appeal and urged the Court to dismiss the appeal.
In his reply to the 1st Respondents argument Mr. Okoroafor, Esq. for the appellants submitted that the law No. 9 of 2000 on which the Respondents are basing their case was only published on the 17th March, 2005. He submitted that by the Authentication Law of Imo state, Section 10 thereof provides that where a law made by the House of Assembly has no commencement date it takes effect from the date of publication and that the commencement date is 17th March, 2005 two years after the commencement of the Suit at the Court below. He thus submitted that the two Laws are not in conflict and urge the Court to discountenance the submission of the 1st Respondent’s Counsel and to allow the appeal.
I now proceed to consider the issues for determination as formulated by the Appellants.
Mr. Ahamba, SAN, for the Appellants argued Issues 1 and 2 together because according to him, they are inter related. The two issues are:-
(i) Whether the creation of Autonomous Communities Instrument 2002 published as Imo State Legal Notice No. 4 of 2003 was competently made by the 1st Respondent, the Governor of Imo State.
(ii) Whether the Traditional Rulers Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000 was in operation prior 17th March, 2005 when it was published in the Imo State Official Gazette.
In arguing these Issues together, Learned Senior Counsel for the Appellants Mr. Ahamba, SAN, submitted that the creation of Autonomous Communities Instrument Law 2003 enacted by the 1st Respondent on 13th October, 2002 will depend on three points of law, namely:
(i) The competence of the 1st Respondent, a Civilian Governor to enact an Instrument.
(ii) The applicable law of Imo State at the time of the enactment of the Instrument-was it Law No. 3 of 1999 or Amendment Law No. 9 of 2000.
(iii) Assuming without conceding that Amendment Law No. 9 of 2000 was the applicable Law, when would an Instrument made thereunder come into effect?
Learned Senior Counsel under the first point of consideration submitted that this Issue arose at the trial Court when it held at page 270 of the Record of Appeal that –
“the Governor of Imo State therefore has the power at the time he made the Imo state Legal Notice No. 4 of 2003 to create Lorji Nweke Ukwu Autonomous Community and make the Instrument in that regard pursuant to Section 14 of Law No. 3 of 1999 as amended by Law No. 9 of 2000.”
Mr. Ahamba, SAN, submitted that this conclusion by the learned trial Judge is erroneous in that neither the Constitution of the Federal Republic of Nigeria 1999, nor the Law No. 3 of 1999 empowers the Governor, the 1st Respondent to enact an instrument which has the force of Law. He placed reliance on the case of Mustapha vs. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 550 to also submit that since the lower Court agreed that Law, as defined in Section 3(1) of the Interpretation Law Cap 66, Laws of Eastern Nigeria, applicable in Imo State and Section 18 of the Interpretation Act includes any instrument having the effect or force of Law, whether a civilian Governor can enact it. He submitted that a similar question arose in the case of Obayuwana vs. His Excellency, Prof. Ambrose Ali, Governor of Bendel State and & Anor (1982) 12 SC 147, wherein it was held that under the 1979 Constitution a Civilian Governor of a State is not the law maker of the State and he cannot validly promulgate Laws or issue legal Notices as did the Military Governor of the State. Learned Senior Counsel therefore submitted that the Civilian Governor of Imo State not being the law maker for Imo state had no constitutional competence to enact Autonomous Communities Instrument 2002 which is a Law and that the 1st Respondent having usurped the powers of the Imo State House of Assembly in making the I.S.L.N. No. 4 of 2003 containing the creation of Autonomous Communities Instrument 2002, the said Instrument is unconstitutional and invalid and the Court was urged to so hold.
On the 2nd point of consideration, Learned Senior Counsel for the Appellants submitted that under Section 14 of the Traditional Rulers, Autonomous Communities and Allied Matters Law No. 3 of 1999 (hereafter referred to as Law No. 3 of 1999), the Governor of Imo State was expressly precluded from creating Autonomous Communities since that function was expressly and exclusively conferred on the House of Assembly. He submitted that more than one year after the institution of the suit which was predicated on Law No. 3 of 1999, the 1st Respondent’s Counsel introduced the existence of an amendment Law to Law, No. 3 of 1999 known as the Traditional Rulers Autonomous communities and Allied Matters (Amendment) Law No. 9 of 2000 (hereinafter referred to Law No. 9 of 2000). He submitted that the new Law had amended inter-alia Section 14 of Law No. 3 of 1999 which conferred competence of the powers hitherto conferred on the House of Assembly on the Governor.
The Learned Senior Counsel therefore objected to the application of the said Amendment Law No. 9 of 2000 to the determination of the Suit because according to him the said Amendment Law was not published in the Imo State official Gazettes in the years, 2000, 2001, 2003 and 2004 but only published in
Imo State official Gazette of 17th March, 2005.
Mr, Ahamba, SAN, for the Appellants argued that it was the case of the Appellants before the trial Court that Law No. 9 of 2000 was probably concocted for the purpose of the pending Suit and would not have come into force before the date of publication of the Law in the state official Gazette in view of the provisions of section 8 Laws of Authentication Law Cap 73 Laws of Eastern Nigeria, or the subsequent Laws of Authentication Law 1980 which has the same provision in Section 10(1) of the Law. Learned Senior Counsel submitted that the word ‘Curious’ used by the Learned trial Judge while considering the provisions of Section 10(1) (supra) betrayed an obvious state of doubt in the mind of the Court as to the credibility of the sudden new statute.
Learned Senior counsel further submitted that despite the obvious finding of the Learned trial Judge on the provisions of Section 10(1) of the Authentication Law, the court proceeded to place the onus of proof on the Appellants that the Law was not made in 2002 on the Appellants instead of the 1st Respondent who introduced and relied on it and came to the conclusion that the 1st Respondent had the power to enact the Legal Notice No. 4 of 2003. It is his view that the determination of which law was in operation in 2003, assuming without conceding that 1st Respondent had the Constitutional competence to enact the instrument becomes relevant.
The Learned Senior Counsel therefore submitted that the findings of the Learned trial Judge that 2002 is the year the Amendment Law No. 9 of 2000 came into force affected the judgment of the Court. Learned Counsel referred to the definition of ‘date’ in Blacks Law Dictionary, Fifth Edition at page 356 to submit that 2002 is not a date. He submitted that a date is a combination of day, month and year and that Law No. 9 of 2000 does not have a commencement date and that the finding of the Learned trial at page 269 of the Record of Appeal is not tenable and the Court was urged to so hold.
Learned Senior Counsel also submitted that the provisions of Sections 2(1) and (2) of the Interpretation Act, Cap 192 Laws of the Federation relied upon by the learned trial Judge is limited only to Acts of the National Assembly and not State Laws. He referred to the case of Aqua Ltd vs. Ondo Sports Council (1988) 4 NWLR (PT 622) 641 to submit that, clear and unambigious words in a statute must be given their ordinary grammatical meaning save where such would lead to absurdity. He therefore submitted that Section 2(2) of the Interpretation Act cannot apply to enlarge the scope of Section 10(1) of the Imo State Authentication Law 1980 to enable its application in the determination of the commencement date of either I.S.L.N. No. 4 of 2003 or the Amendment No. 9 of 2000. Learned Senior Counsel finally submitted that the finding of the Learned trial Judge that the 1st Respondent had the power to create Lorji Nweke Ukwu Autonomous Community at the time he did is erroneous because there was no such law in operation on 13th October, 2003 when the 1st Respondent purportedly created the said Autonomous community and we were urged to resolve both issues 1 and 2 in favour of the Appellants.
In his response to the two issues canvassed above, the Learned Counsel to the 1st Respondent submitted that the learned trial Judge was right when he held that the 1st Respondent, the Governor of Imo State has the power and competence to make the Imo state legal Notice No. 4 of 2003 through which Lorji Nweke Ukwu Autonomous Community was created pursuant to section 14 of Imo state of Nigeria Traditional Rulers and Autonomous communities Law No, 3 of 1999 as amended by Law No. 9 of 2000.
Learned Counsel submitted that the Executive powers of the 1st Respondent, the Governor of Imo state is provided under section 5(2) of the Constitution of the Federal Republic of Nigeria, 1999 and that under Subsection (2)(b) of the said Constitution, the Executives powers of the 1st Respondent extends to execution of maintenance of the Constitution and all Laws made by the State House of Assembly.
Learned counsel also submitted that it is not in dispute that the Imo State House of Assembly enacted the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 3 of 1999 which the said Assembly amended by the Traditional Rulers Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000, giving the 1st Respondent, the Governor of Imo state power to create new Autonomous Communities or to merge existing ones. That pursuant to the said powers conferred on him, the 1st Respondent, among others created Lorji Nweke Ukwu Autonomous Community.
Learned counsel further submitted that the decision of Obayuwana vs. Governor of Bendel State (1982) 12 SC 147 is not applicable to the instant case because in that case, the powers to abolish Customary Courts of that state was vested on the state House of Assembly by section 6(4)(b) of the 1999 Constitution. He submitted that in the instant case, the Imo State House of Assembly has exercised its Legislative powers under the 1999 Constitution in enacting into law the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 and in the exercise of its said power, the Imo State House of Assembly amended the said Law by Law No. 9 of 2000 and specially vested on the 1st Respondent the power to create new Autonomous Communities or to merge existing ones. He thus submitted that the 1st Respondent has the powers under the 1999 Constitution to make legal Notice No. 4 of 2003 and urged the Court to so hold.
On the competence of the 1st Respondent to create Autonomous Communities under the applicable Imo State Law, Learned Counsel submitted Law No. 9 of 2000 was validly made by the Imo State House of Assembly amending Law No. 3 of 1999. On the alleged contention by the Appellants that Law No. 9 of 2000 was probably concocted for the purpose of the pending Suit, Learned Counsel submitted that the onus of proof that Law No. 9 of 2000 was not validly made by the Imo State House of Assembly is on the Appellants and that they placed nothing before the Court to show that the said Law No. 9 was not validly made by them.
On the issue of the commencement date, learned counsel submitted, that though the Law bears no date on its face but was assented to by the 1st Respondent on the 20th September, 2002 and that the Learned trial Judge rightly found that the date the Law was assented to that is 20th day of September, 2002 was the day the Imo state House of Assembly intended the Law to come into effect and that this was strengthened by Section 2(2) of the Interpretation Act. It is also submitted that by section 37(3) of the Interpretation Act, the provisions of the Interpretation Act are applicable to the States of the Federation including Imo State.
It is therefore submitted that the Imo State Legal Notice No. 4 of 2003 under which Lorji Nweke Ukwu Autonomous Community was created by the 1st Respondent came into force on 14th October, 2002 by which time Law No. 9 of 2000 was already in existence and that Law No. 9 of 2000 amended Law No. 3 of 1999 was enforce and empowered the 1st Respondent to make Legal Notice No. 4 of 2003 creating the Lorji Nweke Ukwu Autonomous community. The Court was urged to resolve this issue in favour of the 1st Respondent.
In his own response to the issues 1 and 2 as canvassed above, Learned Senior Counsel for the 2nd Respondent, Mr. U. N. Udechukwu, SAN, submitted on the competence of a civilian Governor to enact instrument under the 1999 Constitution that the Learned trial was right when he held that the Governor of Imo State has the power to make the Imo state Legal Notice No. 4 of 2003 to create Lorji Nweke Ukwu Autonomous Community and make the instrument in that regard pursuant to section 14 of Law No. 3 of 1999 as amended by Section 3(g) of Law No. 9 of 2000.
Learned senior counsel submitted that under Section 5(2) (b) of the Constitution of the Federal Republic of Nigeria 1999, the Executive powers of the State vested in the Governor extends to the execution and maintenance of the Constitution as well as all Laws made by the House of Assembly Imo State and all matters with which the Imo State House of Assembly has the power to make Law.
He submitted that the submission of the Appellant’s Counsel that civilian Governor under the 1999 Constitution lacked the competence to issue an Instrument is too general and therefore faulty. He submitted that the attempt to link such view to the decision of the Supreme Court in Obayuwana vs. Governor of Bendel State (1982) 12 SC 147 is pernicious. He submitted that the Supreme Court did not decide that for all purposes, a Governor under the 1999 Constitution cannot issue Legal Notice having the force of law, but held that “with particular reference to the case in mind”, the Civilian Governor of Bendel State is not the law maker of the State and consequently cannot solely in his capacity as state Governor validly promulgate laws or issue legal notices as did the military Governor of the State.
Learned Senior Counsel therefore submitted that Obayuwana’s case was decided on its own peculiar circumstance and that the Supreme Court did not propound a general principle of Law to the effect that only the legislature can issue legal Notices by way of subsidiary legislation. It is submitted that if it were so, it would mean that all executive proclamation and Orders published by the Governor and duly gazetted as Legal Notices would be void even when these were issued in exercise of statutory authority vested in the Governor. It is also further submitted that the issuance of Legal Notices and proclamations and other instruments constitute some of the means by which a , Civilian Governor under Section 5(2)(b) of the 1999 Constitution may execute and maintain the Laws made by the House of Assembly of a State and all matters with respect to which the House of Assembly for the time being has power to make Laws and submitted that Section 14 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 as amended by Section 3(g) of the Traditional Rulers Autonomous Communities and Allied Matters (Amendments) Law No. 9 of 2000, which conferred powers on the Civilian Governor to create new Autonomous Communities or merge existing Autonomous Communities is a law enacted by the Imo State House of Assembly.
On the competence of the 1st Respondent to create Autonomous Communities, Learned Senior Counsel submitted that by section 14 of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law 1999, the House of Assembly shall have powers to create new Autonomous Communities or merge existing ones. He submitted that this provision was later amended by Section 3(g) of the Traditional Rulers, Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000 which was assented to by the Governor on the 20th September, 2002 but published in the gazette of the 17th March, 2005 where the Governor was vested with the power to create new Autonomous Communities or merge existing Autonomous Communities.
It is submitted by the Learned Senior Counsel that the validity of an enactment is one thing and its commencement date is an entirely different thing. He submitted that Law No. 9 of 2000 was validly made and assented to by the Governor on the 20th day of September, 2002. It makes no difference to its validity that it was only published in the state gazette much later on the 17th day of March, 2005. He cited and placed reliance on the Supreme Court case of Governor of Oyo State & Ors vs. Oba Ololade Folayan (1995) 8 NWLR (PT 413) 292. He also submitted that Section 8 of the Laws of Authentication Law Cap 73 Laws of Eastern Nigeria 1963 applicable in Imo State, also Laws of Authentication Law 1980 which has the same provision in Section 10(1) must be read together with Section 12 of the interpretation Law Cap 66 Laws of Eastern Nigeria 1963 applicable in Imo State and submitted that the commencement date of Law No. 9 of 2000 notwithstanding the amendment introduced dates back to the date of the commencement of the principal Law, that the amending enactment is deemed to be one with the original or principal law. He therefore submitted that the amendment gave the 1st Respondent, the Governor of Imo State the competence to create Autonomous Communities under the applicable Imo State Law.
Learned Senior Counsel also submitted that he who asserts must prove and that the onus was clearly on the Appellants to prove that the Law No. 9 of 2002 was not validly made because it was probably concocted for the purpose of the pending Suit. That curiosity as to why the Law was published in the Gazette much later on the 17th of March, 2005 cannot prove that the Law was not validly made. It is also submitted that the reference to Section 2(2) of the Interpretation Act by the Lower Court or the attempt by the Court to fix the commencement date for the law cannot invalidate the correctness, of the conclusion reached by the Learned trial Judge to the effect that the Appellants failed to prove their case which is that the Law was not validly made. The Court was urged to resolve the issues against the Appellants.
In his reply to the 2nd Respondent’s brief of argument, Learned Senior Counsel for the Appellants submitted that the 2nd Respondent’s brief missed the point of the appeal in terms of live complaint of the Appellants. That the case of Governor of Oyo State & Ors vs. Oba Olalade Folayan (1995) 8 NWLR (PT 413) 292 never raised the issue as to whether the Governor of Oyo State was competent to make the instrument or not but failure to publish the instrument or order setting up a commission of inquiry in time. That the 2nd Respondent also failed to address the ratio decidendi in the judgment which may be found in two conclusions, the first being that ‘2000’ is a date and the second, that law No. 9 of 2002 would come into effect on the day it was asserted to if one relies on Section 2(2) of the Interpretation Act, Cap 192 Laws of the Federation. He submitted that having not answered the points they are deemed conceded.
I have calmly considered the submissions of Learned Senior Counsel for the Appellants and also that of the Respondents, the authorities cited in support of their respective submissions and the law, as reproduced in this judgment. I will in the con submitted by the Learned Senior Counsel for the Appellants and adopted by the Learned Counsel for both the 1st and 2nd Respondents determine the two issues on the three points of Law canvassed namely:
(i) The competence of the 1st Respondent, a Civilian Governor to enact an Instrument.
(ii) The applicable law of Imo State at the time of the enactment of the instrument-was it Law No. 3 of 1999 or the amendment law of No. 9 of 2000.
(iii) Assuming without conceding that Amendment Law No. 9 of 2000 was the applicable law, when would an instrument made thereunder came into effect.
The contention of the Appellants on point No. 1 is that neither the Constitution of the Federal Republic of Nigeria, 1999, nor Law No. 3 of 1999 empowers the Governor, the 1st Respondent in the instant appeal to enact an instrument. I shall first consider the Constitutional angle which is the foundation of the powers of a Governor of a State in Nigeria. Section 5(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria, provides as follows:
5(2) Subject to the provisions of this Constitution, the executive powers of a state-
(b) shall extend to the execution and maintenance of this Constitution, all Laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make Laws.
This Section is clear and admits of no ambiguity. It is that the executive powers of a state vested in the Governor shall extend to the execution and maintenance of the Constitution, all Laws made by the House of Assembly of the State and to All matters with respect to which the House of Assembly has for the time being power to make Laws.
In the instant case, it is not contested by the Appellants that the House of Assembly of Imo State had full legislative powers to enact Laws including the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 3 of 1999 which came into effect on the 22nd day of December, 1999. It is also not in dispute that the legislature of Imo State has the authority or power to amend laws passed by it.
The question now is whether the Governor of Imo State has the power and competence to make the Imo State Legal Notice No. 4 of 2003 under which Lorji Nweke Akwo Autonomous Community was created. Learned Senior Counsel for the Appellants, relying on the Supreme Court decision in Obayuwana vs. Governor of Bendel State (Supra) argued that under the 1979 Constitution the Civilian Governor of a State and with particular reference to the case in mind, the Civilian Governor of Bendel State is not the Law maker of the State and consequently cannot solely in his capacity of State Governor validly promulgate Laws or issue legal Notices as did the Military Governor of the State.
It is necessary to appreciate the facts in Obayuwana’s case in relation to the circumstances of this case. Clearly, the case had to do with the effect of Section 6(4)(a) and (b) of the 1979 Constitution on the powers of Civilian Governor of Bendel State to exercise the power of establishing or abrogating the Customary Court in Bendel State, being a power which before the Constitution was exercisable by a Military Governor who combined both the functions of the Executive and the legislature in Bendel State. As section 6(4)(a) and (b) of the 1979 Constitution stood, it was clear that it was only the legislature id est, the House of Assembly and not the Governor that may create or abrogate any Court. This is because by virtue of Section 6(4) (a) and (b) of the 1979 Constitution, creation of Courts or abrogation of Courts are expressly reserved exclusively for the House of Assembly as part of its Law making function, The Civilian Governor therefore who did not have law making powers under the Constitution could not therefore in this peculiar respect usurp the legislative powers vested in the House of Assembly.
It was on the basis of these peculiar facts and circumstances that the Supreme Court decided that though before the 1979 Constitution, a Military Administrator who has both legislature and Executive powers could cancel warrants or revoke appointments, a Civilian Governor who did not have legislative powers could not usurp the law making powers of the legislature under Section 6(4)(a) and (b) of the 1979 Constitution by issuing the Courts cancellation order.
It is therefore my view that by virtue of the Executive powers vested in the Governor under Section 5(2)(b) of the 1999 Constitution which powers extend to the execution and maintenance of Constitution and all Laws made by the State House of Assembly, 1st Respondent, a Civilian Governor has the powers and competence to make the Imo State legal Notice No. 4 of 2003 through which Lorji Nweke Ukwu Autonomous Community was created pursuant to Section 14 of Imo State of Nigeria Traditional Rulers and Autonomous Communities Law 1999 as amended by Law No. 9 of 2000. The Law No. 3 of 1999 which the State House of Assembly amended by the Traditional Rulers Autonomous Communities and Allied matters (Amendment) Law No. of 2000 gives the 1st Respondent, the Governor of Imo State power to created new Autonomous Communities or to merge existing ones.
This takes me to the next legal point for determination which deals with the competence of the 1st Respondent, the Governor of Imo State to create Autonomous Communities under the applicable Imo State Law.
In the exercise of its legislative duties, the Imo State House of Assembly passed into law, the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law 1999 which came into force on the 22nd day of December, 1999, that is Law No. 3 of 1999. By Section 14 thereof of the said law, the House Assembly was vested with the power to create new Autonomous Communities or to merge existing ones. This provision of the Law was later amended by the same House of Assembly by Section 3(g) thereof of the Traditional Rulers, Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000. The amendment Law was assented to by the Governor on the 20th September, 2002 and published in the Gazette of the 17th March, 2005.
The amendment reads as follows:
3(g) “Delete Section 14 Subsection (a) and (b) and substitute with the following new section.”
“The Governor shall have the power to create new Autonomous Communities or merge existing Autonomous Communities.”
It is clear that the amendment took away the power to create Autonomous Communities or to emerge existing ones hitherto being exercised by the State House of Assembly and vested same on the Civilian Governor of the State. It is therefore clear that before this amendment, the Governor of Imo State was expressly precluded from creating autonomous communities or merges existing ones since the function was exclusively conferred on the State House of Assembly.
The main contention of the Appellants here is that the said Amendment Law is unconstitutional and therefore null and void. They said so because according to the Appellants more than one year after the suit was filed resting on Law No. 3 of 1999, the 1st Respondent introduced the existence of an amendment, Amendment Law No. 9 of 2000, which inter alia amended Section 14 of Law No. 3 of 1999 and confer competence of the powers hitherto conferred on the House of Assembly on the Governor. The Appellants therefore raised objection to the application of the Amendment Law No. 9 of 2000 to their Suit because the amendment was not featured in the 2000 to 2004 official Gazette, but was only published in the Imo State Official Gazette of 17th March 2005. They argued that the Law must have been concocted for the purpose of the pending Suit and that in any case, by Section 8 of Law Authentication Law Cap 73 Laws of Eastern Nigeria 1963, or the subsequent Laws Authentication Law of Imo State 1980, the Law would not have come into force before the date of publication in the official Gazette. Section 10(1) of the said Law provides:
“A Law promulgated under the provisions or this Law shall be published in the State Gazette and shall come into operation on the date of that publication or if it shall be enacted into Law or in some other enactment (including any enactment in force on the appointed date), that it shall come into operation or some other day, on that day”
Learned Senior Counsel for the Appellants argued that the Learned trial Judge was wrong to have placed the onus of proof on the Appellants despite the clear provision of Section 10(1) of the Authentication Law.
The Respondents argued that Section 8 of Laws of Authentication of Eastern Nigeria 1963 or Section 10(1) of the law of Imo State must be read together with Section 12 of the Interpretation Law Cap 66 Laws of Eastern Nigeria 1963 applicable in Imo State which provides:-
Section 12 “when any law amend or adds to any law, the amending law shall, so far as is consistent with tenor thereof, and unless the contrary intention appear, be construed as one with the amended Law; and the amended Law may, in the amending Law, be referred to as the Principal Law.”
The insinuation introduced into the case by the Appellants that Law No. 9 of 2000 was probably concocted for the purpose of pending suit and that the Law was only published in Imo State Official Gazette on 17th March, 2005, clearly placed the onus of proof on the Appellants to prove that Law No. 9 of 2000 was not validly made because it was probably concocted for the purpose of the pending Suit and more curious was the publication of the Law in the Imo State official Gazette on 17th March, 2005.
It is trite that validity of an enactment is one thing and its commencement date is an entirely different thing altogether. It is not in dispute or challenged that Law No. 9 of 2000 was not validly made. It is also not in contention that the Law was assented to by the Governor on the 20th September, 2002. The question is, does the failure to officially gazette an enactment or law even though that enactment Law was clearly assented to by the Governor makes the said enactment or Law illegal, null and void and of no effect whatsoever? I will without any hesitation answer this question in the negative with a No! Gazetting of enactments or Laws has no place in the law making process and therefore not a condition precedent to its validity.
Another question that also rear its head is, what is the effect of the date of ascension on the enactment or the Law vis-a-vis the none inclusion of that date as the commencement date? It is clear that Law No. 9 of 2000 was assented to on the 20th day of September, 2002 by Chief Achike Udenwa, Governor, Imo State of Nigeria. In the circumstances, would the date the Law was assented to not amount to its commencement date if the same is not inserted as the commencement date of the enactment? This question was clearly answered by the learned trial Judge when he held that the 2002 was the commencement date, the learned trial Judge held thus:
”….it is noted that under the commencement in paragraph (1) of the amending Law (Law No. 9 of 2000) it is stated that it shall come into effect “on …………………………. day …………………………..2002.”
Thus making 2002 the year it came into operation. It is evident that the particular day and month in 2002 is the 20th day when the Law came into effect or force is not stated. One can presume that the day and month in 2002 of September, 2002 the date the Law is shown to have been assented to by the Governor Imo State that is, if one relies on Section 2(2) of the Interpretation Act, Cap, 192 Laws of the Federation of 1990 which provides that,…”
This pronouncement by the learned trial Judge is unassailable and reference to Section 2(2) of the Interpretation Act, Cap 192 Laws of the Federation, 1990 is immaterial in that it only apply to Federal Enactments. This is because the commencement dates of Law No. 9 of 2000 introduced by the amendment dates back to the date of commencement of the principal Law. I am strengthen in this view by Section 12 of the Interpretation Law Cap 66 Laws of Eastern Nigeria 1963 applicable in Imo State. The Law provides as follows:
“when any law amends or adds to any Law, the amending law shall, so far as is consistent with the tenor thereof, and unless the contrary intention appear, be constructed as one with the amended Law, and the amended Law may, in the Law, be referred to as the principal Law.”
In the circumstances, the contention of the Appellants that the Learned trial judge referred to 2002 as a date will not in the circumstances render the Law invalid or its finding. The Law No. 9 of 2000 stated that it shall come into force in the year 2002 and it was so assented to by the Governor on the 20th day of September, 2002.
By Section 100(1) and (2) of the 1999 Constitution as amended, a bill passed by the state House of Assembly becomes Law upon being assented to by the Governor. Therefore the subsequent publication or non publication of the said Law in an official Gazette of the state does not in anyway affect the efficacy or the validity of the said Law. Consequently, Imo State Notice No. 4 of 2003 under which Lorji Nweke Ukwo Autonomous Community was created by the 1st Respondent was validly issued pursuant to Section 14 of the Imo State Traditional Rulers and Autonomous Communities as amended by Law No. 9 of 2000. These issues are therefore resolved against the Appellants.
ISSUE 3
Whether the dismissal of the Appellants application for judicial review was proper on Law.
In arguing this issue, Learned Senior Counsel for the Appellants, Mr. Ahamba, SAN, submitted that the dismissal of the Appellant’s application is not supported by the facts presented by the parties on record before the trial Court or the law applicable to the points in dispute.
Learned Senior Counsel submitted that the reliefs inter-alia sought by the Appellants are for an order of certiorari quashing that part of the Autonomous Communities Instrument 2002 published in Imo State Legal Notices No. 4 of 2003 creating Lorji Nweke Ukwu Autonomous Community. He submitted that the applicable Law at the time the cause of action arose is the Traditional Rulers, Autonomous Communities and Allied Matters Law No. 3 of 1999 and that by Section 14 of the said Law, the 1st Respondent had no authority to create Autonomous Communities. He submitted also that this point was conceded by both the 1st and 2nd Respondents when the 2nd Respondent deposed in his paragraph 13 of his affidavit to the fact he strongly state that it was the Imo State House of Assembly that created the newly created Autonomous and not the 1st Respondent. He submitted that the Governor clearly acted ultra vires his powers by usurping the functions of the House of Assembly when he created the Autonomous Communities Instrument published in Imo State Legal Notice No. 4 of 2003.
Learned Senior Counsel also submitted that the condition precedent to the creation of Autonomous Communities in Sections 25 and 26 were not complied with. He also submitted that in the affidavit in support of the motion, Exhibit ‘AB4′ the Umugama Village protested their inclusion in the proposed Lorji Nweke Ukwu Autonomous Community. He also referred to paragraphs 11, 12 and 13 of the affidavit in support which he submitted 1st Respondent did not file any counter affidavit and that he is deemed to have admitted all the deposition of facts of non-compliance by the Appellants. That paragraphs 13 and 14 of the 2nd Respondent’s counter affidavit are just a mere denial. He therefore submitted that where an act is done without lawful authority which affects the right or interest of others, that act is quashable by way of certiorari. He cited and relied on the following cases; Hart vs. Military Governor of River State & 2 Ors (1976) 11 SC 211; Okoye vs. Governor of Lagos State (1990) 3 NWLR (PT 136) 115 at 126-127.
On what amounts to lack of jurisdiction, the case of Anisminic Ltd vs. Foreign Compensation Commission (1969), 1 ALL ER 208 at 233 was referred to. He thus submitted that certiorari ought to have been ordered to quash the creation of Lorji Nweke Ukwu Autonomous Community because the act was done without jurisdiction and to quash the recognition of the 2nd Respondent and grant prohibition and injunction sought which are ancillary to the creation of the Autonomous Community and that the Lower Court ought to have granted the application instead of dismissing the Suit. He urged the Court to resolve this issue in favour of the Appellants.
There is no response by the 1st Respondent on this issue, but the 2nd Respondent did so. He submitted that the pith and substance of the Appellants’ complaint at the trial Court was that Section 14 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 without the amendment governs their case and that this cannot be so. That Law No. 9 of 2000 which amended Law No. 3 of 1999 ought to be taken into consideration and that Law No. 9 of 2000 was assented to be the Governor on the 20th day of September, 2002 amended Section 14 of the principal law. He submitted that what is amended continues in existence in its new form relying on Adesanoye & Ors vs. Adewole (2006) 14 NWLR (PT 1000) 242 at 285. He further submitted that the Amended Law was duly canvassed at the trial Court in the course of proceedings and the Court was bound to take judicial notice of the principal Law as amended. He also submitted that even if the amending Law was published in the gazette only in 2005, after the Appellants commenced their case in 2004, that cannot affect the validity of the amending enactment which had been assented to by the Governor before the commencement of the Suit, citing the case of Governor of Oyo State & Ors vs. Oba Ololade Folayan (1995) 8 NWLR (PT 413) 292. He thus submitted that all arguments under this issue based on the principal Law without amendment are misplaced.
On the contention that certain averments in their affidavit were not challenged in a Counter Affidavit, he submitted that the trial Court took account of all the Affidavits evidence and came to the conclusion that the Governor validity issued the legal Notice No. 4 of 2003 and urged the Court to affirm the decision of the trial Court and to dismiss the Appellant’s Suit. He added that certiorari or judicial review cannot be a platform to challenge a purely Executive Statutory function of the Governor, relying on Nwaobashi & Ors vs. The Military Governor of Delta State (2003) 11 NWLR (PT 831) 305 at 319.
In his response, the Learned Senior Counsel for the Appellants submitted that where Governor acts untra vires his powers, certiorari is applicable to quash the acts of the Governor and that the case of Nwaboshi vs. The Military Governor of Delta State (Supra) cited by the 2nd Respondents does not apply.
The main substance of the Appellants’ complaint under this issue was that the conclusion reached by the learned trial Judge in dismissing the Appellants Suit was not supported by the facts presented by the parties on record and the applicable Law, Section 14 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 governs their case. This cannot be right. The Law No. 9 of 2000 which amended Law No. 3 of 1999 must be taken into consideration and this is what the learned trial Judge rightly did. Section 3(g) of the Traditional Rulers, Autonomous Communities and Allied Matters (Amendment) Law No. 9 of 2000 was assented to by the Governor of Imo State on the 20th day of September, 2002 and amended Section 14 of the principal Law, that is the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 which came into force on the 22nd day of December, 1999.
The Appellants cannot by their argument revive Section 14 of the principal maintaining that the said Law was not so amended even if the amending enactment was published in a gazette only in 2005, that is after Appellants had commenced their Suit in 2004. The year of publication cannot affect the validity of the amending enactment which has been assented so by the Governor before the Suit was commenced. See Governor of Oyo State and Ors. vs. OBA Ololade Folayan (1995) 8 NWLR (PT 413) 292.
Appellants also contended that certain averments in their affidavit in support of the application were not challenged by the Respondents in a counter affidavit. The Learned trial had dispassionately considered the case of Appellants and the Respondents and properly evaluated the Affidavit evidence before coming to the conclusion that the application is without any merit and dismissed same.
Where a Court trial reliably evaluates the evidence, oral or documentary and justifiably appraises the facts, it is not the business of the Appellant Court to substitute its own view for those of the trial Court. See Woluchem vs. Gudi (1981) 5 SC 291; Agbeje vs. Ajibola (2002) 2 NWLR (PT 750) 127; and Nwangwu vs. F.B.N. Plc (2009) ALL FWLR (PT 500) 712 at 739.
This issue is also resolved against the Appellants.
Having resolved all the issues for determination in this appeal against the Appellants, it follows therefore that the appeal is without any merit. I accordingly dismiss the appeal. The judgment of the Lower Court delivered on the 30th day of March, 2006 is hereby affirmed.
Parties to bear their own costs.
MOJEED A. OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother UWANI MUSA ABBA AJI, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Uwani Musa Abba Aji JCA (Presiding) gave me the advantage of reading before now, the judgment just delivered by him.
Upon a careful and sober reflection on the claims before the lower court, I am of the view that, what should have agitated the mind of the lower court is whether the Law i.e. the Traditional Rulers and Autonomous Communities Law No. 3 of Imo State, of 1999 was validly made by the Imo State House of Assembly. If the answer is found to be in the positive, whether the governor of Imo State validly exercised the power granted him to create the Lorji Nweke- Ukwu Autonomous Community vide the Autonomous Communities Instrument i.e. Imo State Legal Notice No. 4 of 2003.
To answer those questions, I would want to point out that, the Imo State House of Assembly has been vested with the power under Section 4(7) of the 1999 Constitution to make laws for the peace, order and good governance of the state or any part thereof with respect to the following matters:
(a) Any matter not included in the Exclusive Legislative list set out in part 1 of the second schedule to this constitution;
(b) Any matter included in the concurrent legislative list set within the first column of part II of the second schedule of this constitution to the extent prescribed in the second column opposite thereto; and
(c) Any matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.
It is obvious that it is in pursuance of this power vested in it by the above cited provisions of the 1999 Constitution that the Imo State House of Assembly enacted the Traditional Rulers and Autonomous Communities Law No. 3 of 1999.
From the issues as canvassed by the parties in this appeal, the competence of the Imo State House of Assembly to enact the law No. 3 of 1999 has not been challenged. What occupied the mind of the parties is the competence of the Imo State Governor to create the Lorji Nweke- Ukwu Autonomous community vide the Imo State Legal Notice No. 4 of 2003. I had earlier stated that the Imo State Home of House has been vested with power to legislate for the state on any of the items listed. Having exercised that power, the Imo State House of Assembly gave the 1st Respondent (the Governor of Imo State) power to create new Autonomous Communities or to merge existing ones. See AMOSHIMA v. STATE (2011) 14 NWLR (Pt.1268) Pg. 530 at 551 Para. C; A.G; PLATEAU STATE v. GOYOL (2007) 16 NWLR (Pt. 1059) Pg. 57. It therefore follows that the Imo State House of Assembly had the power to amend the Law No. 3 of 1999, which they did vide The Law No. 9 of 2000, thus giving the Governor power to create Lorji Nweke-Ukwu Autonomous Community.
The Appellants’ complaint has also been on the date of commencement of Law No. 9 of 2000, which amended Section 14 of the principal law i.e. Law No. 3 of 1999. By Section 2(2) of the Interpretation Act, cap 192 Laws of the Federation of Nigeria, 1990 where no other provision is made as to the date when a particular enactment is to come into force, it shall, subject to the following, come into force:
(a) In the care of an enactment contained in an Act of the National Assembly, or the day when the Act is passed;
(b) In any other case, on the day when the enactment is made;
(c) Where an enactment is expressed to come into force on a particular day it shall be construed as coming into force immediately on the expiration of the previous day.
It should be noted that the Interpretation Act is a statute of general application, and therefore applies to all the states of the Federation, including Imo State.
In that respect, since a bill of the State Assembly requires the assent of the governor by virtue of Section 100(2) of the 1999 Constitution (unless passed pursuant to Section 100(5) of the Constitution), the bill becomes Law the moment it is assented to by the governor. In the instant case, it is deemed that the Law No.9 of 2000 became Law on the date the Governor of Imo State assented to same.
The Gazetting of same is therefore not a requirement for the efficacy or validity of the law. See OGBORU v. UDUAGHAN (2011) 17 NWLR (Pt. 1277); H.D.P v. OBI (2011) 18 NWLR (Pt. 1278) Pg. 80.
In that respect, it is my view that the extant Law governing the Traditional Rulers and Autonomous Communities in Imo State is the Imo State Traditional Rulers and Autonomous Communities Law No. 3 of 1999 as amended by the Imo State Traditional Rulers and Autonomous Communities Law No. 9 of 2000. Since the Governor of a state has the constitutional duty, nay, power to execute all laws passed by the House of Assembly, by virtue of the Section 5(2) of the 1999 Constitution, I am of the view that the governor of Imo State had the vires to create Lorji Nweke-Ukwu Autonomous Community pursuant to the provision of Law No. 9 of Imo State, 2000, which amended the Law No. 3 of 1999.
For the above stated reasons and the detailed reasons in the lead judgment just delivered by my learned brother, I agree that this appeal has no merit. I accordingly dismiss same. Consequently, the judgment of the lower court delivered on the 30th day of March, 2006 is hereby affirmed.
I abide by the order on costs.
Appearances
C. C. Okoroafor, Esq, with K. O. Ahamba, Esq. and U. U. Okafor (Miss)For Appellant
AND
S. A. Njoku, Esq. Att. Gen: Imo State, with N. C. Akwowundu, Esq. D. P. P. and S. E. Ibechiem, Esq. A.D.P.P for the 1st Respondent.
S. C. Ifeakar, Esq. for the 2nd RespondentFor Respondent