{"id":129,"date":"2024-07-06T14:29:23","date_gmt":"2024-07-06T14:29:23","guid":{"rendered":"https:\/\/sccr.gov.ng\/?p=129"},"modified":"2024-07-06T14:29:23","modified_gmt":"2024-07-06T14:29:23","slug":"james-v-governor-of-edo-state-orsexamining-the-decision-of-the-court-of-appeal-in-the-light-of-the-1999-constitution-of-the-frn-as-amended","status":"publish","type":"post","link":"https:\/\/sccr.gov.ng\/?p=129","title":{"rendered":"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)"},"content":{"rendered":"

Abstract<\/strong><\/p>\n

The Judgement in the case of\u00a0Charles Apiloko James V. the Governor of Edo State & Ors. (2021) LPELR \u2013 54203(CA<\/i>), delivered by the Court of Appeal, Benin Judicial Division, on the 18th\u00a0day 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.<\/p>\n

Keywords<\/strong>: Constitution of Nigeria, right to freedom of movement, James V. Governor of Edo State, Court of Appeal, \u00a0examining, decision.<\/p>\n

    \n
  1. Introduction<\/strong><\/li>\n<\/ol>\n

    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],\u00a0whereas in Nigeria the Constitution is regarded as supreme [2].\u00a0Dicey emphatically delineated on this when he wrote, rather comically, that \u201cit is a fundamental principle of English lawyers that Parliament can do everything but make a woman a man, and a man a woman\u201d[3].\u00a0The concept of supremacy of the Constitution confers the highest authority in a legal system on the Constitution[4].\u00a0\u00a0Dragne[5]\u00a0describes the Constitution vis\u2013a\u2013vis its supremacy as the law that \u201cis at the top of the pyramid and it is the source of all other documents and legal regulations.\u2019\u2019 Constitutional supremacy is therefore the position of the Constitution having superior or greater power or authority.<\/p>\n

    The foundation of the supremacy of the Nigerian Constitution is traced to Section 1(1) which provides that: \u201cThis Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.\u201d 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]\u00a0and Dixon whose works provide central reasons for and great insight into the binding powers of the Constitution.<\/p>\n

    In demonstrating the supremacy of the Constitution and its binding nature, a cursory x\u2013ray of the cases of\u00a0Attorney \u2013 General of Lagos State V. Attorney \u2013 General of the Federation<\/i>[7]\u00a0and\u00a0Inakoju V. Adeleke<\/i>[8]\u00a0is 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\u00a0Section 162(1) of the Constitution<\/i>\u00a0and 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\u00a0Section 187 of the Constitution<\/i>. The Supreme Court declared their action as unconstitutional, null and void.<\/p>\n

      \n
    • The Blue Pencil Doctrine and Inconsistency Rule<\/strong><\/li>\n<\/ul>\n

      As a common law jurisdiction, Nigeria enjoys the blue pencil doctrine[9] enshrined in the Constitution. Accordingly, \u201cif 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\u201d[10].<\/p>\n

      The Court of Appeal applied this rule in the case of\u00a0Inspector \u2013 General of Police V. ANPP<\/i>[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.<\/p>\n

        \n
      • The Fact of the \u00a0Case under Review<\/strong><\/li>\n<\/ul>\n

        The 1st\u00a0Respondent, 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.<\/p>\n

        On 17\/06\/2013, the 1st\u00a0Appellant 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 1st\u00a0Respondent. He was ordered to ride his motorcycle to the police station, but he zoomed off and returned to his house. The 2nd\u00a0Appellant 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 1st\u00a0Respondent.<\/p>\n

        The 1st\u00a0and 2nd\u00a0Appellants thereafter instituted an action at the Federal High Court, Benin Judicial Division, claiming inter alia: (a) a declaration that the 1st\u00a0Respondent\u2019s 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 1st\u00a0Respondent and constituted a violation of the Appellants\u2019 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 1st\u00a0Respondent\u2019s verbal ban on the use of motorcycles with the threat to confiscate and destroy the 1st\u00a0Appellant\u2019s motorcycle constituted a gross violation of the 1st\u00a0Appellant\u2019s right to fair hearing and freedom of movement.<\/p>\n

        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.<\/p>\n

          \n
        • Decision of the Court of Appeal<\/strong><\/li>\n<\/ul>\n

          The Court of Appeal, while upholding the appeal, granted the reliefs of the Appellants in part. The Court declared that \u201cthe Governor\u2019s verbal ban on the use of Motorcycles was unconstitutional, illegal, null and void, and of no effect whatsoever\u201d[12].\u00a0Furthermore, the Court set aside the Governor\u2019s verbal ban on the use of motorcycles, and went ahead to award the sum of Three Hundred and One Thousand Naira \u00a0(N301, 000) as compensation and costs in favour of the Appellants against the Governor.<\/p>\n

            \n
          • Ratio Decidendi<\/strong><\/li>\n<\/ul>\n

            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\u2019s right to freedom of movement provided under Section 41(1) of the Constitution of Nigeria?<\/p>\n

            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].\u00a0It is therefore beyond disputation that the right to freedom of movement \u2013 like other fundamental rights \u2013 is inherent in all human beings, and so cannot be denied[14].\u00a0However, 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:<\/p>\n

            Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society-<\/p>\n

            Imposing restrictions on the residence
            \nor movement of any person who has
            \ncommitted or is reasonably suspected
            \nto have committed criminal offence in
            \norder to prevent him from leaving
            \nNigeria\u2026<\/p><\/blockquote>\n

            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:<\/p>\n

            \u2026.Now looking at the succinct provisions of
            \nSection 41(1) and (2) \u00a0of the Constitution of
            \nNigeria, 1999 (as amended) what would
            \nreasonably be justified or justifiable in my
            \nview is not a verbal order or even at best a
            \nwritten executive order made by a Governor
            \nbut written law made by the Legislature. Thus,
            \nneither a verbal order nor even a written
            \nexecutive order made by the Governor can on
            \nits own be justified or justifiable under Section
            \n41(2) of the Constitution of Nigeria, 1999
            \n(as amend), unless such a verbal order or
            \nwritten executive order was made pursuant
            \nto or by virtue of an existing law which is
            \njustified or justifiable under Section 41(2)
            \nof the Constitution of Nigeria, 1999
            \n(as amended).<\/p><\/blockquote>\n

            The Court went further to note that neither a \u2018Verbal Order\u2019 nor a \u2018Written Executive Order\u2019 nor \u2018The Executive Arm of Government\u2019 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)<\/p>\n

              \n
            • Effect of a Verbal Order under Section 41(1) of the 1999 Constitution<\/strong><\/li>\n<\/ul>\n

              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\u00a0ab initio\u00a0<\/i>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\u00a0Section 36(12) of the 1999 Constitution<\/i>\u00a0which provides that:<\/p>\n

              \u2026. a person shall not be convicted of a
              \ncriminal offence unless that offence is
              \ndefined and the penalty prescribed in a
              \nwritten law; and in this subsection a
              \nwritten law refers to an Act of the
              \nNational Assembly or a Law of a State,
              \nany subsidiary legislation or instrument
              \nunder the provision of the law.<\/p>\n

              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, \u201c\u2026 it is ipso and ab initio invalid and if properly challenged must \u2013\u00a0debito justitae<\/i>\u00a0be set aside\u201d{16}.<\/p>\n

                \n
              • Conclusion<\/strong><\/li>\n<\/ul>\n

                The recent decision by the Appeal Court in the case of\u00a0James V. Edo State Governor[17]\u00a0<\/i>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. \u00a0If the 1999 Constitution of Nigeria must be viewed within Kelson\u2019s binoculars of Grundnorm[18],\u00a0\u00a0from where all laws and regulations draw their powers[19];\u00a0and if the courts are constitutionally entrusted with the powers to check the activities of governments and people in order to protect respect for people\u2019s rights and fundamental liberties[20],\u00a0\u00a0the \u201cGrundnorm, then, is not something that can be changed\u2026 and the courts of the judges and the legislatures can at best reflect, rather than effect, a change in the Grundnorm.\u2019\u2019\u00a0\u00a0[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].\u00a0The verbal order made by the 1st\u00a0Respondent 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.<\/p>\n

                 <\/p>\n

                1.Albert Dicey, Introduction to the Study of the Law of the Constitution<\/i>, 8th\u00a0ed. (Indianapolis: Liberty Fund,1982,) p.3.<\/p>\n

                2.Section 1(1) of the 1999 Constitution of Nigeria (as amended) contains the supremacy clause.<\/p>\n

                3. Albert Dicey, Op. Cit. Note 1.<\/p>\n

                4. Limbach, Jutta. (2001). \u201cThe Concept of the Supremacy of the Constitution\u201d.\u00a0The Modern Law Review<\/i>. Vol.64, No.1. pp. 1- 10.<\/p>\n

                5. Dragne, L. \u201cSupremacy of the Constitution\u201d.\u00a0AGORA International Journal of Juridical Sciences<\/i>. Vol. 1. No.4.pp. 38 \u2013 41.<\/p>\n

                6. Simmons, Evans. (2004). \u201cWhy is the Constitution Binding? Authority, Obligation and the Role of the People\u201d.\u00a0Adelaide Law Report.<\/i>\u00a0Vol. 25. pp. 104 \u2013 134.<\/p>\n

                7. Owen, Dickson. (1935). \u201cThe Law and the Constitution\u201d. 51\u00a0Quarterly Law Review<\/i>. pp. 570 \u2013 590.<\/p>\n

                8. (2007) S.C.<\/p>\n

                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). \u201cHow We Are Using The Application of \u201cBlue Pencil Rule\u201d in Illegal Contract\u201d.\u00a0International Journal of Business, Economics and Law<\/i>. Vol. 10. No.4. pp. 1 \u2013 6.<\/p>\n

                10. Section 1(3) of the Constitution.<\/p>\n

                11.\u00a0(2007) \u2013 C. A.<\/p>\n

                12.\u00a0Per His Lordship, Georgewill Biobele Brown, J. C. A.<\/p>\n

                13. Section 41(1) of the 1999 Constitution of Nigeria (as amended).<\/p>\n

                14. Simma, Bruno and Alston, Philip. (1988 \u2013 1989). \u201cThe Sources of Human Rights Law: Customs, Jus Cogens and General Principles\u201d.\u00a0Australian Year Book of International Law.<\/i>\u00a0Vol. 5. No. 2. pp. 1 \u2013 27.\u00a0See also F. Dorwick,\u00a0Fundamental Human Rights<\/i>. (London: George Town University Press, 1996), p. 12.<\/p>\n

                15. See the cases of\u00a0Aiko V. Fagbemi (1961). All NLR 400; Paulson V. The State (2011) LPELR \u2013 4875 (CA);\u00a0<\/i>and\u00a0Hon. Hembe V. FRN (2014) LPER \u2013 22705 (CA).<\/i><\/p>\n

                16. Per His Lordship, Georgewill Biobele Brown, J.C.A.<\/p>\n

                17.\u00a0Supra.<\/p>\n

                18.Rachuonyo, J. (1987). \u201cKelson\u2019s Grundnorm in Modern Constitution: The Kenya Case\u201d.\u00a0McGill Law Journal<\/i>. Vol. 20. No.4. pp. 416 \u2013 430.<\/p>\n

                19. Ibid.<\/p>\n

                20.See Uwais, M. L. (2006). \u201cThe Evaluation of Constitutionalism in Nigeria: \u00a0the Role of the Supreme Court under the 1979 and 1999 Constitution\u201d. \u00a0Nigerian Institute of Advanced Studies Inaugural Distinguished Fellows Lecture. See also Section 6 of the 1999 Constitution of Nigeria (as amended).<\/p>\n

                21.Simmons, Evans, Op, Cit. Note 6.<\/p>\n

                22.See Section 1 (3) of the 1999 Constitution.<\/p>\n","protected":false},"excerpt":{"rendered":"

                Abstract The Judgement in the case of\u00a0Charles Apiloko James V. the Governor of Edo State & Ors. (2021) LPELR \u2013 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"default","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"set","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"categories":[1],"tags":[],"class_list":["post-129","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/posts\/129","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=129"}],"version-history":[{"count":1,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/posts\/129\/revisions"}],"predecessor-version":[{"id":130,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=\/wp\/v2\/posts\/129\/revisions\/130"}],"wp:attachment":[{"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=129"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=129"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sccr.gov.ng\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=129"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}