The recent Judicial overthrow of some Governments in our Jurisdiction, for example, Anambra State in 2006, Edo State in 2008, has thrown up some jurisprudential and constitutional issues which scholars of Constitutionalism, Jurisprudence and Legal Theory have not adverted their minds to. This has given some persons who might not be adepts in constitutionalism, jurisprudence and legal theory, the opportunity to bandy about various arguments ranging from the argument of Necessity to the argument of Nature, abhorring a vacuum; to legitimize or ratify the acts of adjudged aberrations, interregnums or nullified Governments. With respect to the principles of Source, Sovereignty or Legitimacy of Government, the arguments of Necessity or Nature cannot apply. Again, there is a world of jurisprudential difference between the Concept of State and the Concept of Government.
The term, State, may refer either to the body politic of a nation (e.g. Nigeria) as in a Nation-State or to an individual governmental unit of such nation (e.g. Edo State): See Sections 3 and 14(1) of the Constitution of the Federal Republic of Nigeria, 1999 hereinafter referred to as the Constitution.
The State exists in constancy and permanency, even in perpetuity. The State is a continuum. But Government exists in temporality and tenurity. While Governments may be subject or prone to constitutional or revolutionary upheaval, change or overthrow, such as in the case of a periodic democratic change by means of a General Election or a Coup d’ etat, the State is not so easily susceptible to such, except in the case of a break-up by civil war or a successful programme of self determination.
In the case of United States v. Kusche, D.C.Cal., 56 Supp. 201, 207, 208, State was defined as:
A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe.
In Delany v. Moraitis, C.C.A.Md., 136, F.2d 129, 130, State was defined as:
The organization of social life which exercises
sovereign power on behalf of the people.
In State ex rel. Maisano v. Mitchell, 155 Conn. 256, 231 A.2d 539 542, State was defined as:
A body of people occupying a definite territory
and politically organized under one government.
Section 318 of the Nigerian Constitution 1999, defines State as:
When used otherwise than in relation to one of the component parts of the Federation, includes government.
Government, on the other hand, is derived from the Latin word gubernaculum which signifies the instrument, the helm, whereby the ship to which the State was compared, was guided on its course by the “gubernator” or helmsman, and in that view, the Government is but an agency of the State, distinguished as it must be, in accurate thought, from its scheme and machinery of Government.
Government is the machinery by which the sovereign power in a State expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative businesses of the State are carried on. The whole class or body of officeholders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative, and administrative businesses of the State.
Again, Section 318 of our Constitution says that:
Government includes the Government of the Federation, or of any State, or of a Local Government Council or any person who exercises power or authority on its behalf.
This is the view of Government I am taking about in this piece. This brings me to the legal dichotomy between Acts of State and Acts of Government.
In Banco de Espana v. Federal Reserve Bank of New York, C.C.A.N.Y., 114 F.2d 438, 444, Act of Government or Governmental Act was defined as:
An act in the exercise of constitutional, legislative, administrative, or judicial powers conferred on federal, state or local government for the benefit of the public. A step physically taken by persons capable of exercising the sovereign authority of the nation.
In Graves v. People of State of New York ex rel. O’keefe, N.Y., 306 U.S. 466, 59 S.Ct 595, 596, 83 L.Ed 927, Act of Government was defined as:
Any action of the federal government,
or of a State, within its constitutional power.
Again, on the other hand, Act of State or State Action in the case of Denver Welfare Rights Organization v. Public Utilities Comm., Col., 547 P.2d 239, 243 was defined as:
A general term, used in connection with claims under due process for which a private citizen could seek damages or redress because of improper governmental intrusion into his life. In determining whether an action complained of constitutes “state action” the court examines whether sufficiently close nexus exists between the State and the challenged action so that the action may fairly be treated as that of the State itself.
The State, for example, does not necessarily need Commissioners, Special Advisers, Special Assistants to function. Neither does the State need Council Chairmen, Councilors or Supervisory Councilors to function. The Nigerian State during the Colonial Administration never had such the way we have them today and yet the State was and functioned. It is the type of Government in operation that determines its type of functionaries. A Unitary State, for example, would have no need for Governors. Neither would a Military Regime have need for Council Chairmen or Councilors. But the State indispensably needs the Civil Servants: See Section 318 of the Constitution; Nwosu v. Imo State Environmental Sanitation Authority (2004) 20 WRN 94 at 136. Needs the Judiciary, parliament, Security Personnel, the Police, the Armed Forces, good network of roads, health and medical care system, education system, irrespective of the Government in power, to function. These are Acts of State.
Sovereignty resides in the State, not in Government. For any Government to be the organ through which the State exercises its Sovereignty, the Government must have and derive from the terms of the Constitution Legitimacy. Legitimacy means lawful birth: See People v. Commons 64 Cal App 20 Supp 925, 148 P.2d 724, 731; United States v. Schenck C.C.A.N.Y 126 F.2O 702, 705, 707.
In the case of City of Bisbee v. Cochise County, 52 Ariz. 1 78 P.2d 982, 986, Sovereignty was defined as:
The supreme, absolute, and uncontrollable power by which any independent State is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a State, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or State, which is sovereign and independent. It is the supreme power by which any citizen is governed and is the person or body of persons in the State to whom there is politically no superior. The necessary existence of the State and that right and power which necessarily follow is “Sovereignty”.
Therefore, the extant issue which the sacking of PDP Prof. Oserheimen Osunbor’s Government by the Court of Appeal raises, is: what is now the legal status of the actions of Prof. Oserheimen Osunbor as Governor of Edo State for 18 months? The quick and easy positional argument of some lawyers on this issue is that all actions of the former Governor remain valid and subsisting. Otherwise, they argued, what happens to the salaries and allowances, he paid and received, the contracts he awarded, the Bills he signed into law, the inauguration of the House of Assembly, etc. No. Not all of his acts are valid. It may be so only to the extent as to whether they are Acts of State or Acts of Government. Such acts, and similar ones, are Acts of State and are unaffected by a change in Government. With or without a Governor, salaries of State Civil Servants would be paid. The daily administration of the State would run albeit to a limited extent. To all these, the doctrines of Necessity and Nature would apply. But even the so-called doctrines of Necessity or Nature is suspect and of limited validity sometimes. Between the hours of 1 p.m. on 11/11/08 when the Court of Appeal, Benin City sacked Prof. Oserheimen Osunbor Government and 1 p.m. on 12/11/08 when the Government of Comrade Adams Oshiomhole was sworn in, there was no Government (as defined by Section 318 of the Constitution) in Edo State. Similar examples abound in the Constitutional and Political History of Nations.
But the crucial issue this piece is concerned about are not such Acts, i.e. Acts of State. This piece is concerned about the legal status of the Act of Government, which created another Government. Like the 15th and 22nd December, 2008 Local Government Elections conducted by the Government of Prof. Oserheimen Osunbor under the aegis of the Edo State Independent Electoral Commission (EDSIEC) and the subsequent inauguration of the Local Government Councils by him, which constituted another Government as the third-tier Government in Edo State.
Nigeria is a tripartite constitutional federation; Federal, State, Local: See Sections 2 and 3(6) of the Constitution; Federal Republic of Nigeria v. Anache (2004) 14 WRN 1 at 47 – 49. Each tier of Government is a constitutional sovereign within its spheres of influence: See EL-Rufai v. House of Representatives National Assembly of the Federal Republic of Nigeria (2003) 46 WRN 70 at 93. Although as between the State and the Local Governments, the latter is born by the former, only a Legal Government of State can validly give birth to or constitute the Government of the Local i.e. the Local Government Council or confer Legitimacy on it: See Section 7(1) of the Constitution.
As at 15th and 22nd December 2007 when the PDP Government of Prof. Oserheimen Osunbor conducted the Local Government Elections through EDSIEC, and the subsequent inauguration of the Local Government Councils by Prof. Oserheimen Osunbor, there was a pending court action questioning the validity of the purported declaration of election and return of Prof. Oserheimen Osunbor as Governor of Edo State at the Election Tribunal, Benin City. The candidates who contested the ultra vires Local Government Elections of Prof. Oserheimen Osunbor had actual Notice of the pendency of the election petition against the validity of the declaration of Election and Return of Prof. Oserheimen Osunbor. Consequently, they are caught by the outcome of the said election peition. This is what is known in law as the Principle of Lis Pendens. In the case of AG–Lagos State v. AG–Federation (2005) 2 WRN 1 at 57, the Supreme Court said:
The enactment of New Local Government Areas (Amendment) Law, 2004 by the Lagos state House of Assembly, which was assented by the Governor of Lagos State on the 6th day of October, 2004, when this case was pending before us, is of no effect and cannot be operative….
In Enekwe v. IMB Ltd (2007) 1 MJSC 193 at 207 paragraphs A-D, the Supreme Court expounded on the principle of Lis Pendens thus:
The expression lis pendens is made up of two latin words. The first is lis. The second is pendens. The word lis means a piece of litigation, a controversy. The word pendens conveys the connotation of pending. The two words put and read together generally mean a pending law suit. The expression is a useful Latinism that has given its name to a notice required in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit must be subject to the outcome of the litigation. The latin expression, pendent elite nihil innovetur means, during litigation nothing new should be introduced.
While, in Olori Motors & Co. v. UBN Plc. (2006) 6 MJSC 37 at 55 Paragraphs B-G, the Supreme Court said:
Lis Pendens denotes those principles and rules of law which define and limit the operation of the common law maxim, to the effect that nothing relating to the subject matter of suit can be changed while it is pending; an, subject to certain limitations and qualifications considered. One who, with actual or constructive notice of the pending action, acquires from a party thereto an interest in the property involved in a litigation in a Court having jurisdiction of the subject matter and of the person of the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment or decree.
Section 1(2) of the Constitution says:
The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.
Section 285(2) of the Constitution vests jurisdiction in the Governorship and Legislative Houses Elections Tribunal to hear and determine petitions as to whether any person has been validly elected to the office of Governor. Section 318 of the Constitution says Government includes, among others, any person who exercises power or authority on its behalf. Section 147(1) of the Electoral Act, 2006, which is a constitutional statute, vests jurisdiction and power in the Tribunal and/or court to nullify the election and return of any person not validly elected in accordance with the provisions of the Constitution or any law made under and by virtue of the provisions of the Constitution.
By the combined effects of the Judgments delivered on 20th March, 2008, by the Election Tribunal, Benin City and on 11th November, 2008 by the Court of Appeal, Benin City, the Election, the Return and in effect the Government of PDP Prof. Oserheimen Osunbor in Edo State were nullified. This is what is known in law as the principle of Nullity. The principle of Nullity as famously stated by the Privy Council, through Lord Denning, as far back as 27th November, 1961 in the case of Macfoy v. UAC now reported in (2000) 15 WRN 185 at 194-195 Paragraphs 35-5, means that:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
In the case of Ngige v. Obi (2006) 18 WRN 13 at 256, the Court of Appeal, which is the apex court on election matters, See Section 246(3) of the Constitution; Awuse v. Odili (2004) 6 WRN 1 at 13, stated that: Dr. Chris Nwabueze Ngige was not duly declared elected or returned and should not have been declared as duly returned or duly elected and declared Mr. Peter Obi as validly and duly elected and returned as Governor of Anambra State.
The Supreme Court put the legal position beyond any conjecture when it stated categorically in the subsequent case of Obi v. INEC (2007) 9 MJSC 1 at 42 that:
When the verdict of the Court of Appeal (Enugu Division) declaring the present Appellant as the rightful person to have been declared as having won the gubernatorial election of April 2003, was handed down, the effect is that the return of Dr. Chris Ngige as the person who won the election was null and void and of no legal consequence.
The Government of Mr. Peter Obi was therefore held to begin to run with effect from 17th March, 2006, when it came into being through his subscription to the Oath of Allegiance and Oath of Office. This Judgment has further made nonsense and mincemeat of the doctrines of Necessity and Nature. What this means is that between May 29, 2003 to March 16, 2006 when the Government of Dr. Chris Ngige in Anambra State was judicially overthrown, there was no legitimate Government and legally no Government in Anambra State. In fact, in the eyes of the law, there was never ever such a Government although in the eyes of fact, there was. That is why the Government of Mr. Peter Obi was held to begin on 17th March, 2006.
This is a decision sound and faultless in jurisprudence, legal theory and constitutionalism. This is also the case now in Osunbor v. Oshiomhole. When a thing or an act is said in law to be null and void and of no legal consequence, it means it had never had any legal or valid being or at all. In Zogby v. State, 53 Misc. 2d 740, 279 N. Y. S. 2d 665, null and void was defined as:
“Null and void” means that which binds no one or is incapable of giving rise to any rights or obligations under any circumstances, or that which is of no effect.
If, as is often argued, that all actions of a nullified Government remain valid, then the Government of Mr. Peter Obi ought to have continued from where that of Dr. Chris Ngige stopped by virtue of Section 180(2) of the Constitution. It is the same Election that Dr. Chris Ngige and Mr. Peter Obi participated in that produced two Governments. One illegal, the other legal. A Legal Government cannot be a continuation of an Illegal Government. In the eyes of the law, there was never such Government. The activities or acts of that Government that remain valid are Acts of State. For example, the Bills signed into law by that Government are Laws of the State. It is the State that makes Laws, not the Government. Order of Proclamation inaugurating the commencement of the session of the House of Assembly is an Act of State. The payment of salaries to Civil Servants, contracts awarded and paid for, are all Acts of State and so are preserved and valid.
The recent Judgment of the Court of Appeal Enugu Division delivered on June 26, 2008 in Appeal No. CA/E/319/2007: Rt. Hon Balonwun & Ors v. Governor of Anambra State reported in the Guardian of Tuesday 18th November, 2008 under the heading Governor Ngige’s acts in office valid is not and cannot be a blanket authority legitimizing the Act of an Illegal Government which created another Government. That case is only authority for what it decided i.e. that the Order of Proclamation of the first session of the Anambra State House of Assembly issued on June 5, 2003 by Dr. Chris Ngige as Governor of Anambra State is and remains valid. That is correct. But if the Government of Dr. Chris Ngige or Prof. Oserheimen Osunbor created or constituted another Government, or purports to confer legitimacy on a Local Government Council, during its illegal tenure, then that Government is also a nullity, as illegitimacy cannot confer legitimacy, as illegality cannot begat legality. The principle is Nemo dat quod non habeat, meaning you cannot give what you do not have.
By the nullification of the election and return of Prof. Oserheimen Osunbor by the trial Tribunal and the appellate court, it means that the assumption of the office of Governor by Prof. Oserheimen Osunbor on 29th May, 2007 based on the election of 14th April, 2007 was not in accordance with the provisions of the Constitution. This is tantamount to treason: See Section 1(2) of the Constitution supra. Illegality is like HIV/AIDS. The person who has it and anyone to whom he transfers it would both die. They, like Nullity, have no cure. Lord Denning says it is not only bad, but incurably bad.
This is the reason a Military Government on a successful takeover of Government, suspends and subordinates the Constitution, ousts the jurisdiction of the Courts to inquire into its legality and immediately creates its own Order and Test of Legality. During a Military Regime, the Constitution is no longer the Grundnorm but the Decree which created the Military Government and vested legality on it. That is why the Military Government can create States and Local Government Areas and/or constitutes State Governments and Local Government Councils: See Constitution (Suspension and Modification) Decree No. 1 of 1984; Constitution (Suspension and Modification) Decree No. 107 of 1993; AG of Ondo v. AG of Ekiti (2001) 50 WRN 1; AG Bendel State v. Agbafodoh (1999) 2 NWLR (pt. 590) 476; AG-Anambra State v. AG Federation (1994) 6 NWLR (pt. 302) 692; Military Governor of Lagos State v. Ojukwu (2001) 9 WRN 155 at 170. Nwosu v. Imo State Environmental Sanitation Authority (2004) 20 WRN 94 at 136.
A civilian Government which came into power by means of rigging is like a Military Government which came to power by means of a coup. But unlike the Military Government, the mode of its ascendancy of power can be questioned: See Sections 1(2), 285(2) of the Constitution; Sections 140, 145 and 147 of the Electoral Act, 2006; Ngige v. Obi, supra; Osunbor v. Oshiomhole (unreported) and cannot create a new Order or Test of Legality and suspend parts of the provisions of the Constitution which are against it: See Section 1(3) of the Constitution.
Therefore, on the twin doctrines of Lis Pendens and Nullity, the Local Government Council Elections held on 15th and 22nd December 2007 and the subsequent inauguration of the Councils by Prof. Oserheimen Osunbor in Edo State are nullities: See AG–Lagos State v. AG–Federation (2005) 2 WRN 1; AG–Bendel State v. AG of the Federation (1981) 10 SC 1 at 35 and 37; N.E. M. G. I. A. Ltd v. Uchay (1973) 4 SC 1 at 10; Mohammed v. Olawumi (1990) 2 NWLR (pt. 133) 458 at 484.
An illegitimate Government can only give birth to an illegitimate Government. A legitimate Government cannot legitimize an otherwise illegitimate Government. The Government contemplated under Section 7(1) of the Constitution means a legal Government, and not an illegal one. An illegality cannot vests legality: See AG Abia State v. AG-Federation (2002) 17 WRN 1; AG Ogun State v. AG of the Federation (1982) 3 NCR 166The fundamental exception to Acts of Government created on the basis of the legal theory of Legitimacy of Government is that Source of Government must be legal, often times as prescribed by the terms or provisions of the Grundnorm or the Constitution. Otherwise, it cannot create or constitute any Government that would be legal, unless it creates its own yardstick or Order of Legality. Only a legal Government can create another legal Government. The test of the legality of any Government is by the Constitution and only by the terms of the Constitution can a Government be declared null and void. If a Government whose Election and Return into Office have been adjudged null and void and of no legal consequence such as Prof. Osunbor’s, creates or constitutes another Government, that other Government is also null and void and of no legal consequence, even though its other Acts of State remain valid: See Rt. Hon Balonwun & Ors v. Governor of Anambra State, supra; Macfoy v. UAC, supra.
Consequently, the Governments of the eighteen Local Government Councils in Edo State created or constituted by the Government of Prof Oserheimen Osunbor are null and void and illegal, since the Government of Prof. Oserheimen Osunbor which birthed or constituted them has been declared null and void on the doctrine of legality of Source of Government. The Oshiomhole Government cannot confer legitimacy on them even if it wants to. Any of the registered political parties having a stake in the Local Government Councils has the requisite locus standi to go to court armed with the Judgments of the Election Tribunal and Court of Appeal, Benin City by way of Originating Summons in compliance with the Rule of Law for an Order declaring them a nullity by reason of the nullification of Prof. Oserheimen Osunbor’s Government: See Nigerian Law of Locus Standi by Mike A. A. Ozekhome Page 126. The Local Government Councils ought not by executive fiat be so declared. That would be a resort to self-help which Justice Eso in Military Governor of Lagos v. Ojukwu, supra, called executive lawlessness. By the principles of Separation of Powers and the Rule of Law, only the court can declare them to be so. In Nigeria, the dictum of Lord Denning in Macfoy v. UAC, supra, is modified by the dictum of Obaseki, JSC in Military Governor of Lagos State v. Ojukwu, supra, at page 175 lines 35 – 40 wherein His Lordship said:
“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power.”
In a Sovereignty, there cannot be a Sovereign within a Sovereign. In a State, there cannot be two parallel Governments; one legal, the other illegal. There cannot be one Government of Thesis and another Government of Antithesis within one State of Synthesis, unless both were brought about by one and the same legal process at one and the same time by the people in whom Sovereignty resides, by a credible election in a multi-party State wherein the people exercised plurality but diversity of choices. For example, the General Election of 14th April, 2007 wherein the people voted for different political parties at the Federal and State levels within one polity: See Morebishe Esq. v. Lagos State House of Assembly (2000) 3 WRN 134 at 150.
In that case, the Thesis is the Government. The Anti-thesis is the Opposition, both brought about by one uniform legal process at the same time. This, I submit, is the correct position of the Law of Jurisprudence, Legal Theory and Constitutionalism on Legitimacy of Government.
Austin Osarenkhoe Esq. is a Benin-based legal practitioner.
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