Ikerumba Madumere V. Emmanuel Onuoha & Ors (1999)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal by the plaintiff before the Imo State High Court (I.C.K. Pats-Acholonu, J., as he then was), sitting at Etiti. What gave rise to this suit before that Court was the demolition by the 1st and 2nd respondents herein of a structure the appellant had erected on a piece of land. The respondents had done the act complained of in their capacity as chairman and secretary respectively of the Obowo Local Government, created out of Etiti Local Government in 1981 by the Imo State Government.
Pleadings were ordered, filed, exchanged, and amended. Evidence was however, not taken, the plaintiff having decided to submit some issues for the Court’s consideration and decision based on the facts in the pleadings on which there was no dispute. These facts were as follows: In 1981 the Imo State Government established the Obowo Local Government by carving same out of the existing Etiti Local Government. The 1st respondent was appointed the chairman of the newly created Local Government and the 2nd respondent as the secretary.
The appellant put up a structure on a piece of land that the 1st and 2nd respondents felt belonged to the Local Government. They, acting as chairman and secretary of the Local Government, took action, which they felt their duty as chairman and secretary called for in order to protect property of the Local Government. What they did was to demolish the structure put up by the appellant.
The issues submitted to the Court below by the appellant were as follows:
“1. Whether Obowo Local Government Council was a legal entity known to the law of this country; vide the constitution.
- Whether a State can pass a law which is inconsistent with the unsuspended parts of the constitution of the Federation (1979) or covered by a Decree.
- Whether Obowo Local Government Area was non-existent, the act of 1st and 2nd defendants in destroying the property in question is defensible or justified in law.
- Whether Etiti Local Government Council can ratify the act of alleged Obowo Local Government Council under the constitution or any existing Decree.
- Whether the Act of the alleged Obowo Local Government Council which was done when in law Obowo Local Government Council did not exist can be ratified by a subsequently legally created Obowo Local Government.
- Whether a state counsel can defend the 1st and 2nd defendants where they are sued in their personal capacity for an act they (1st and 2nd defendants) were incompetent to perform under the law.
- Can the High Court of this State adjudicate on the creation of new Local Government Area by the Governor of the State Government.”
The learned Judge heard arguments from counsel on the issues and delivered his decision thereon. He agreed with the appellant that the Imo State Government lacked the constitutional competence to create the Obowo Local Government. He agreed also that the creation exercise was, therefore, a nullity. He however rejected the contention of the appellant that because of that fact the Obowo Local Government could not be regarded as having existed in fact and that, therefore, the 1st and 2nd respondents could not rely on their being in the service of such nonexistent Local Government to claim to be public officers and to claim protection as such officers for their act complained of.
Aggrieved by this second part of the learned Judge’s decision the appellant appealed to this Court on one ground. With leave of this court he filed 3 additional grounds.
Parties filed briefs of argument in compliance with the Rules of this Court. In the amended appellant’s brief learned counsel identified the following 3 issues for determination.
“3.1 Whether the trial judge was right in holding that the first and second Respondents were public servants of the Obowo Local Government, if not whether their demolition of the appellant’s house was justifiable in law.
3.2 Whether the act of pulling down the house of the appellant by the 1st and 2nd defendants who were not lawful officers could be justified in law in the circumstances.
3.3. Whether the respondents acted in good faith for public purpose.
On behalf of the 1st and 2nd respondents the following 2 issues were formulated:
“Whether the trial Judge was right in-law in holding that 1st and 2nd Respondents were public servants.
Whether the act of 1st and 2nd Respondents in removing the illegal structure erected by the Appellant on the land acquired by the Local Government in 1977 for the building of Avutu Basic Health Center were justifiable in law.”
Learend counsel for the 3rd respondent did not formulate any issues of his own. He argued the appeal based on the issues formulated on behalf of the appellant and the 1st and 2nd respondents.
Issue 1 identified on behalf of the appellant and issue 1 identified on behalf of the 1st and 2nd respondents can be conveniently dealt with as indeed the 3rd respondents counsel did deal with them in his brief of argument. The two issues raised the same question, which is whether or not the 1st and 2nd respondents could be regarded as public officers at the time they worked as chairman and secretary of the unconstitutionally created Obowo Local Government and did the act complained of.
The appellant’s contention on this issue can be summed up in the submissions of counsel on his behalf that
“…since the Local Government was non existent in law, every purported act of it was void. That being so it could not pretend to appoint public officers. This type of situation was highlighted in Macfoy v. U.A.C. Ltd (1961) 3 A.E.C.R. 1169, 1172(1). Since the first and second defendants could not be so appointed, they could not have any legal authority to act for or on behalf of the void Local Government. It followed therefore that any purported act of first and second defendants … could not be said to be done as servants or agents of the non-existent body. That is to say that the Respondents are personally liable in their respective activities leading to this suit.”
For the 1st and 2nd Respondents learned counsel started by observing that had the Obowo Local Government been duly established by law there would not, having regard to the provisions of 277(1) of the 1979 Constitution have been any doubt about the 1st and 2nd respondents being public officers. He then argued that
“It is of no movement whether or not at the time of their action, Obowo Local Government is (sic) not a legal entity… Whether or not Obowo Local Government was not legally and constitutional (sic) created the 1st and 2nd Respondents as public servants deployed by the Government and people of Imo State acting as servants of the State. Consequently, any act of the 1st and 2nd Respondents in carrying out his function is protected provided their act is within the ambit of the law.” For the 3rd respondent learned counsel adopted the learned trial Judge’s view, relying on Texa v. White Wallace 700, that “When Government is unlawfully created but abides by the standards of behaviour of a Government, credit and recognition should be accorded to such acts”.
This is the way the learned Judge dealt with this issue in his judgment:
“Now the question that comes readily for consideration is whether these defendants by working at the time they so did for non existent Government, should be made personally liable for their acts even in pursuance of good administration and governance of that entity known then as Obowo Local Government. It is axiomatic that the right to good government postulates is indeed premised on a prior concept that there is a people to which some political leaders are striving hard to fit in an ordered and civilized world to enjoy the comfort of life and the like, such as the right to liberty, life and pursuit of happiness and is most poignantly set out in chapter 4 of the 1979 constitution or 1989 constitution respectively. This concept means the individual within that organic body of a State Local set up, is to be free to live and develop as he wills subject to no restraints except such as is reasonable to be enforced and considered necessary for the exercise of liberty by others, and for safety and welfare of the entire society. There must be a properly organized body. The body must be run along the lines of administration and in lineard in tune with the various statutes, rules and regulations of the country based on the concept and philosophy under lined in the constitution of this country….
The underlying ethos and philosophy being to ensure good Government, were the act of those public officers who piloted the affairs of the Obowo Local Government Council then also invidious and legally noxious and bad. In my view when a Government is unlawfully created or made to exist but it abides by the standard of behaviours expected of a good and civilised Government and is seen to abide by and subscribe to the normative principles recognized in civilized societies the Court would articulate its minds reasonably before giving a verdict to the acts of that illegal government. Shall the baby in the water be thrown away with the bad water. Could we simply turn blind eye to the good effort that might have been made to bring Government to the people because such government which tried to lay foundations for good administration was not legally constituted.”
I am in full agreement with this reasoning by the learned judge. To say that because the Imo State Government (which had no competence to do so), instead of the Federal Government (which had competence), had created the Obowo Local Government, the Local Government did not exist in fact is to ignore the real facts of life as they existed. Had the creation been done by the Federal Government nobody would be wasting breath now arguing that the chairman and secretary were not public officers. As events turned out, the Federal Government did eventually create it.
There is another legal principle on which I must resolve this issue against the appellant. The Obowo Local Government was created by Edict, i.e. Edict No.24 of 1981. The 1st and 2nd respondents were appointed pursuant thereto. The law is that any legislation once made remains valid until declared invalid by a court of competent jurisdiction. To view it otherwise and let everybody be the judge of which is and which is not valid legislation and to act accordingly is to let anarchy loose upon the land.
In Aboye v. Ofili & anor (1986) 1 NWLR (Pt.15) 134, the Rivers State Government leased property to one person. At a latter point in time the Government compulsorily acquired the lease by Edict made in 1972. Sometime thereafter it granted the same lease to the 1st respondent to this appeal. Still later the property was allocated to the appellant as government official quarters. Government however later informed him of the change of ownership in favour of 1st respondent. He refused to acknowledge him by paying rent to him. Hence the suit by 1st respondent as plaintiff. In 1982 the Supreme Court declared that Edict unconstitutional and, therefore, void in another case (i.e. Peenock Investments Ltd. v. Hotel Presidential (1983) 4 NCLR 122). Relying on this decision it was contended on behalf of appellant that since the Edict was a nullity it followed that the original lease to the first lessee was still extant. It followed further that the second lease to the 1st respondent was a nullity as the Government had nothing to lease out. The Supreme Court roundly rejected this contention. Uwais, J.S.C. (as he then was), who read the lead majority judgment explained the matter thus at pages 146-147:
“I think it will be a dangerous precedent, capable of resulting in chaos, to hold that if a case is contested on the basis of the applicability of a particular statute, when the statute is operative, then, if at a later date the statute became repealed, the right acquired under it also becomes extinguished. It is to avoid such absurdity and preserve the certainty and predictability of law that section 6 subsection (2) of the Interpretation Act, 1964 provides that when an enactment expires, lapses or ceases to have effect, the provisions of subsection (1) thereof should apply, as if the enactment remains operative. The provisions in paragraphs (b)(c) and (c) of the subsection read thus:
“6.(1) The repeal of an enactment shall not –
…
b. affect the previous operation of the enactment or anything duly done or suffered under the enactment;
c. affect any right, privilege, obligation, or liability accrued or incurred under the enactment;
…
e. affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment:
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the enactment had not been repealed .
…To my mind any action rightly taken under the Edict before the 3rd December, 1982, when the decision of this Court in Peenok’s case was given, remains valid at all time by virtue of the provisions of section 6 of the Interpretation Act, 1964 unless of course, it is specifically declared invalid by a competent court of law in any proceeding where the validity of the Edict is directly in issue as in the Peenok’s case. In Kay v. Goodwin, (1930) 6 Bing. 576 at p.582. Tindal C. J. said:
“The effect of repealing a statute is to obliterate it completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.” (Italics mine).
Eso, J.S.C… in his concurring judgment explained the rationale of pages 153-154:
“..An act is valid until declared void by a court of law. This has always been the law. If for nothing else, it accords with common sense. The whole essence of law is that, for it to be just, it must be certain. No one can acclaim as society to be just if the society lives under a law which blows hot and cold.
When an Act of Parliament is passed, it is deemed to be valid until such Act of Parliament is repealed or nullified for unconstitutionality. The actions, rights, interest, and detriments, under such act, until repeal or annulment, must be valid. What happens if the statute remains unrepealed or unchallenged for one hundred years? With all respect, I think it must be preposterous to conclude that all the rights and benefits, profits or detriments for the 100 years also become void. That is chaos. That with respect, savours of the law of the jungle, certainly not, in my respectful view, one fit for a just society.
What happens to conflict of laws and International law? I would like to believe that transactions under foreign Acts which affect individuals, corporations or governments in another country would remain valid notwithstanding the nullification of the Acts by the foreign country in succeeding years. If it is otherwise such uncertainty will lead to upheavals, domestic and international. It may cause wars.”
At the time the 1st and 2nd respondent did the act complained of the Edict setting up the Local Government had not been declared invalid. There was, therefore, legal cover for them to act as chairman and secretary. The fact that the Edict was, long after they ceased to function as such, declared void would not, on the authority of Abaye v. Ofili, supra, render the action they took when the Edict was considered valid invalid.
For these reasons I resolve this issue against the appellant and in favour of the respondents. The learned trial Judge was perfectly justified in his holding that the 1st and 2nd respondents were public servants when they demolished the appellant’s structure and that they did so in their capacity as such public servants.
On issue 2 formulated on behalf of the appellant it was contended that the act of the 1st and 2nd respondents complained of constituted self help, which the Supreme Court condemned in Lagos State & Ors. v. Ojukwu (1986) 1 NWLR 261.
On Issue 3 it was submitted that the demolition of the appellant’s structure by the 1st and 2nd respondents was not done in good faith nor was it done for the benefit of the public.
I must say that in the circumstances of this case these two issues cannot be resolved. The resolution of them is dependent on the establishment of certain facts. It was not established in what circumstances the demolition was done. As evidence was not taken it will never be known.
For these reasons I say no more on them. In the result I find this appeal totally lacking in merit. I therefore dismiss it with costs assessed at N3,000.00 in favour of the respondents.
Other Citations: (1999)LCN/0487(CA)
