IN THE SUPREME COURT OF NIGERIA
On Thursday, the 19th day of April, 1973
Before Their Lordships
DARNLEY ARTHUR RAYMOND ALEXANDER….. Justice, Supreme Court
GEORGE SODEINDE SOWEMIMO….. Justice, Supreme Court
KAYODE ESO….. Justice, Supreme Court
AYO GABRIEL IRIKEFE….. Justice, Supreme Court
CHUKWUWEIKE IDIGBE….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
1. SAMUEL OGUEBIE
2. CHIEF ONWERE ONUOHA
(For themselves and as representing Nduka family Imeoha, Mgbidi)
1. CHUKWUDILE ODUNWOKE
2. CHUKWUNYERENWA NWACHUKWU
3. OGUALO MGBEKWUE
(For themselves and as representing the people of Umungubo Family, Imeoha, Mgbidi)
This appeal first came before this Court on 8th November, 1976. Earlier on, that is on 3rd November 1976, the appellants had filed a notice of motion for leave to file and argue additional grounds to the seventeen grounds of appeal, which were originally filed with the notice of appeal. These additional grounds of appeal, and for which leave to argue was granted by the Court, are as follows:
“(xviii) The judgments of this Honorable Court in the cases mentioned in the next Ground of Appeal were given per incuriam and accordingly the decision of the lower court was not a nullity and this appeal should be entertained notwithstanding the said decisions.
In the Alternative
(xix) The trial was illegal and void as per the decision of this Honorable Court in UTTAH v. INDEPENDENCE BREWERY LTD (1974) 2 S. C. 7; OKWUOSA v. OKWUOSA (1974) 2 S. C. 13 and other cases.
Particulars of Invalidity
(a) The statement of claim was filed in “the High Court of the Republic of Biafra” and filing fees were paid on 13th December, 1967 in that court.
(b) On 20th January, 1971 when the parties appeared before the Court, no other Statement of Claim was filed and it was the one filed on 13.12.67 that was ordered to be served on the surviving defendants.
(Xx) In the reasons stated in Ground 1 (sic Ground xix) thereof the learned trial Judge misdirected himself in law and in fact in holding:
“Pleadings were filed and exchanged during the illegal regime but due to loss of documents belonging to the Court and Solicitors the case was reactivated by this Court and pleadings were exchanged afresh and hearing commenced before me as from 26/9/73. This case is therefore not caught by the judgment of the Supreme Court which regards as void the writs issued during the period of rebellion.”
On 8th November, 1976 the appeal was adjourned to 17th January, 1977 for hearing, but on that adjourned date, the appeal which came before a Court of three Judges of this Court (hereinafter referred to as “a Court of three”) was further adjourned for hearing by the full court after it had been agreed by all the learned counsel thereto, and approved by the Court, that only Grounds (xviii), (xix) and (xx), (supra) would be referred to the full Court for argument and decision.
When on 2nd May, 1978 the matter came before the full Court for argument therefore, there were, apart from Chief F.R.A. Williams, learned counsel for the Appellants and Mr. Chike Ofodile learned counsel for the Respondents, legal submissions from four amici curiae invited by the Court, to wit. Dr. Obi Okongwu, Deputy Solicitor-General of the Anambra State, Mr. B.C. Okoli, Principal State Counsel of the Imo State, Mr. T. Fubara, Acting Deputy Solicitor-General of the Rivers State and Chief T. AchiKanu, Legal Adviser representing the Cross Rivers State.
In so far as the three additional grounds of appeal, which were argued before the Court, are concerned, the following facts are relevant:
The plaintiffs filed their claim for declaration, damages for trespass and injunction in the Owerri Judicial Division of “the High Court of the Eastern Region of the Republic of Nigeria” on 5th May 1967. On the same day, the plaintiffs filed a motion, ex parte, in the same court, seeking leave “to sue the defendants in a representative capacity”. An affidavit by one of the plaintiffs and an exhibit were also filed in the same court that day.
On 25th May, 1967, the plaintiffs brought a motion in the same court, seeking an order of interim junction to restrain the defendants until the determination of the suit pending in the court. Neither of these two motions was heard before the illegal declaration of secession, by Ojukwu, of that part of the country, known as Eastern Region, which he christened “the Republic of Biafra”.
By the States (Creation and Transitional Provisions) Decree 1967 No. 14, twelve States had been created out of all the Regions in the country. The Eastern Region was broken into three States to wit: Central-Eastern, South-Eastern and Rivers. This was on 27th May 1967. On the same day, by States (Appointment of Military Governors) Order 1967, L.N. 48 of 1967, Lt. Col. C. O. Ojukwu was appointed the Military Governor of the CentralEastern State. The Owerri Judicial Division of the High Court, where the instant case was being heard, was in the Central-Eastern State. However, as a result of the illegal declaration of secession by Ojukwu, his appointment as the Military Governor of the Central-Eastern State was, from 1st July, 1967, revoked (vide the Revocation of Appointment of Military Governor Lt. Col. Ojukwu) Order 1967, L.N. 66 of 1967.
The Statement of Claim in this case, which was filed on 13th December 1967, was filed in the so-called “High Court of the Republic of Biafra”. By the time the case came before Ikpeazu, J. on 6th January 1971, the civil war had ended and the learned Judge was sitting at the High Court of the East-Central State. The following note appears on the record of the 6th January 1971.
“Osuji for plaintiffs. Egole for defendants. Parties not served. Counsel only happened to be in Court for other matters. Adjourned to 20/1/71 for service. Fresh Notices to both parties.”
What happened on 20th January, 1971 was that the learned counsel for the plaintiffs asked for “service of the statement of claim and plan to be effected on the Defendants now in view of the loss of previous one”. The Court made the following order
“Statement of claim and plan now served on defendants.”
It is to be noted that throughout the proceedings, no fresh statement of claim was filed and what was ordered to be served, and was in fact served on the defendants on 20th January, 1971, was the statement of claim which had been filed in the High Court of the so-called “Republic of Biafra” on 13th December, 1967.
Having regard to the importance of this case, it is necessary to set out the legal submissions of learned counsel in some details, and we shall start with ground (xviii) of the grounds of appeal. This is the most important of the three grounds argued; especially as both the other two are in the alternative. If the applicants succeed on this ground, it means the case would be reverted, by this full court, to a court of three for it to take submissions on the original grounds of appeal.
Chief Williams’ contention on this ground is that the decisions of this court in Uttah v. Independence Brewery Limited (1974) 2 Sc. 7, Okwuosa v. Okwuosa (1974) 2 Sc. 13 and other cases decided by this court (which held as a nullity, any judgment of a High Court of Nigeria, based on any material originating in the so-called “High Court of Biafra”) were all given per incuriam. Learned counsel submitted that when there is a rebellion or a civil war, or a part of the country is invaded, and there is a usurper in de facto control, the common law does not treat every transaction or judicial determination or a step in a judicial proceeding within the rebel enclave (or area no longer subject to normal jurisdiction of the Sovereign Authority) as illegal, unconstitutional and void.
He argued that the learned trial Judge in the instant case was right, when, sitting in the High Court of the East Central State on 20th January, 1971, he directed the statement of claim, filed in the High Court of the so-called Biafra, to be served.
Chief Williams relied on the doctrine of necessity or implied mandate and relied on the opinions of Lord Denning in RE JAMES (1977) 2 W. L. R. p.1., the case of MADZIMBAMUTO v. LARDNER BURKE (1969) 1 A.C. 645 as per Lord Pearce and Lord Reid, CARL ZEISS STIFF TUNG v. RAYNER AND KEELER LIMITED (No.2) (1967) 1 A. C. 853 and ADAMS v. ADAMS (1971) p. 188. He also referred us to the decisions of the Supreme Court of the United States, which were discussed in the Madzimbamuto case.
Learned counsel conceded however that there is express legislation by the lawful sovereign to the contrary, one could not displace that legislation by the doctrine of necessity. In this case, however, submitted learned counsel, there is no such legislation, and even if the rebel regime had appointed new Judges, the doctrine of necessity will apply. Although the Judges in the so-called Biafra sat there, they were sitting, in the eyes of Nigeria, as Judges in Eastern Nigeria. The proper approach, continued learned counsel, is to look at the matter from the angle of the lawful sovereign being unable to function in the rebel territory.
Chief Williams concluded by formulating the following propositions:
(1) It is beyond argument that all executive legislative and judicial acts of a rebel government during the period of a rebellion were illegal in so far as they were made in furtherance of the rebellion or for the sustenance of the rebel regime.
(2) All other transactions or acts including judicial acts or steps taken in judicial proceedings which took place during the period of rebellion are not to be disregarded or treated as invalid merely because they were done pursuant to the orders, or under the authority of the rebel government.
(3) The validity of such transactions or acts derives from an implied mandate of the lawful authority or the lawful Sovereign or from the necessity which occasioned such transactions or acts.
(4) The order for pleadings as well as the statement of claim used in this case should not be disregarded or treated as invalid.
Mr. Ofodile, learned counsel for the Respondents, in the main, supported the submissions of Chief Williams. He contended, however, that the counsel for the plaintiffs, after the rebellion, applied in the High Court of the East-Central State to amend the statement of claim which was filed in the High Court of the so-called Biafra and that application gave the plaintiffs an opportunity to file an amended statement of claim. In any event, submitted learned counsel, the court could proceed with or without pleadings. Counsel concluded by saying that the statement of claim, which was filed in the High Court of the so-called Biafra, was a mere irregularity, which had been waived by the defendants.
While Dr. Okongwu and Mr. Okoli, as amicus-curiae, agreed with the legal submissions made by Chief Williams in regard to the doctrine of necessity or implied mandate, Mr. Fubara, also as amicus curiae, contended that the judgments of this court under references were not only correct as a matter of law, but also in conformity with Government policy. That policy was against all acts which would tend to foster the rebellion. For his part, Mr. Achi urged that the situations in Rhodesia and the United States during the civil war were different from the Nigerian situation and the American cases and urged that the case of Madzimbamuto (supra) should not be relied upon for a decision in this case.
From the various submissions of learned counsel, it is clear to us, and we are of the firm view, that the main point for decision on this ground of appeal is whether or not the doctrine of necessity of implied mandate, which doctrine has been so ably dealt with by learned counsel for the Appellants, applies in this case. The authorities which we have now been asked to consider were not brought to the notice of the Court for consideration in its earlier decisions under reference and this Court is now having the first opportunity to examine them.
The doctrine of necessity or implied mandate is essentially one of international law . Several civilians and jurists, ancient and modern, particularly Hugh Grotius in his “De Jure Belli ac Pacis”, Pufendorf (“De Jure naturae et Gentium”). Suarez (“Tractatus De Legibus”), and Lessius (“De Justicia et de Jure”), have in their several writings declared their support for the applicability of this doctrine in international law. The general theme deducible from their propositions is that the laws of a usurper, who is in a firm de facto control, are obeyed by those in the usurped state on the principle that such obedience stems from the usurper having an implied mandate from the lawful Sovereign.
The lawful Sovereign would rather prefer the usurper’s laws to be obeyed during occupation to save the exposure of the usurped state to anarchy and eventual chaos. The implied mandate is therefore an attempt by the lawful Sovereign to preserve his realm. Among modern writers on the subject are Dr. Lauterpacht, who in his “Recognition in International Law and Tribunals” regarded the doctrine as one of justice and fair play and Dr.
Schwarzenberger, who in his “International Law as applied by International Courts and Tribunals” Vol. 2 (1968) p.346, summed up the rationale behind the doctrine as follows:
“For the returning sovereign to purport to ignore the jurisdiction lawfully exercised by the Occupying Power would be to deny his own temporary inability to exercise his territorial sovereignty in the enemy-occupied territory . . .”
There is no doubt that this doctrine, to the extent of its proposition by these learned authors, accords with common sense. However, the doctrine, though essentially one of international law, has been extended to domestic rebellion; and it is in this regard that the decisions of the Supreme Court of the United States, to which learned counsel drew our attention, are relevant. The decisions are particularly relevant in this case as there is a lot of similarity between the United States and the Nigerian situations. The United States cases dealt with the aftermath of the unsuccessful rebellion of the Southern States just as the instant case and the other Nigerian cases under reference deal with the aftermath of the unsuccessful rebellion of a part of the country – the so-called Biafra.
During the hearing of the Madzimbamuto case, the rebellion in Rhodesia was on, and the unlawful regime was still in control, whereas in both the American and Nigerians situations the rebellion had ended before the institution of the cases. And so, the distinction, legitimate as it could appear to be, drawn by Lord Pearce in the Mazimbamuto case between that case and the American cases that (ibid p. 733) “During a rebellion it may be harmful to grant any validity to an unlawful act, whereas when the rebellion has failed, such recognition may be innocuous does not arise in the instant case. It is with this as background therefore that we would proceed to consider the decisions in the American cases.
In The State of TEXAS v. WHITE (1868) 7 Wallace 700, the issue was whether in view of certain legislation passed in the State of Texas, as a result of which the state government was organised, not only without the consent of the Government of the United States but also by the forcible ejection of its officers including the Governor and the Judges, the State of Texas might be recognised as a – state for the purpose of the original jurisdiction of the Supreme Court of the United States, Chase, C.J. in delivering the opinion of the Court, recognised the de facto authority of the Rebel Government. He said:
“The Legislature of Texas, at the time of the repeal, constituted one of the departments of State Government established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the Courts of United States, as a lawful Legislature, or its Acts as lawful Acts. And yet it is an historical fact that the Government of Texas, then in full control of the State, was its only actual government; and certainly if Texas had been a separate State and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government, and its acts, during the period of its existence as such, would be effectual and, in almost all respects, valid. And, to some extent, this is true of the actual government of Texas, though unlawful and revolutionary as to the United States.” (see (1878) 7 Wallace at p.240).
As regards what recognition to accord the acts of the rebel authority, the learned Chief Justice said (ibid)
“It is not necessary to attempt any exact definitions, within which the Acts of such a State Government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that Acts necessary to peace and good order among citizens, such for example, as Acts sanctioning and protecting marriage and the domestic relations, governing the course of descent, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar Acts, which would be valid if emanating from a lawful government, must be regarded, in general, as valid when proceeding from an actual, though unlawful government. . .”
The learned Chief Justice however made an important reservation and this was
“. . . that Acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other Acts of like nature, must in general, be regarded as invalid and void.”
Lord Pearce in his famous minority judgment in the case of Madzimbamuto v. Lardner Burke (supra) said, and we agree with him, that the principle of necessity or implied mandate could be extracted from the decision in Texas v. White (supra) and the other decisions of the Supreme Court of the United States, which we would deal with presently.
In so far as the learned Chief Justice in Texas v. White (supra) would appear to have limited the application of the doctrine as being in the interest of the lawful sovereign, that is, the protection of the Constitution of the United States as opposed to assisting in its destruction, we think he was right on the facts of the case, and though the act of the rebel regime in the case was legislative act, it is our considered view that the result should be the same were the act administrative or judicial.
Before we consider the other decisions of the Supreme Court to which our attention had been directed, we would like to state that we hold the view that there is no distinction, in the doctrine of necessity or implied mandate, between “necessity” and “implied mandate”. The two phrases, to be meaningful, must be synonymous. For any act of the rebel regime or in the rebel enclave to be necessary, it, in our view, must be such as could be implied as the intendment of the lawful sovereign.
The next American case to be considered is HANAUER v. WOODRUFF (1872) 15 WALLACE 224 (82 U.S.). There Field, J. delivering the opinion of the Supreme Court of the United States said
“. . . If the Constitution be, as it declares on its face it is, the supreme law of the land, a contract or undertaking of any kind to destroy or impair its supremacy, or to add or encourage any attempt to that end, must necessarily be unlawful, and can never be treated in a court sitting under that Constitution and exercising authority by virtue of its provisions, as a meritorious consideration for the promise of anyone. The obligation of a traitorous combination, issued expressly to make war against and overthe Government of the United States can never give validity to any transaction which must seek the courts of that government for enforcement.” (See (1872) 15 Wallace at p.225).
Here again, the court was in effect repeating the reservation it made in Texas v. White (supra).
As regards the authority of a de facto rebel government the court referred to THORINGTON v. SMITH WALLACE (75 U.S.) 1 where it was said
“The distinguishing features of this kind of government were.
(1) That its existence is maintained by active military power within the territories and against the rightful authority of an established and lawful government; and
(2) That while it exists it must necessarily be obeyed in civil matters by private citizens, who by acts of obedience rendered in submission to such force do not become responsible as wrong-doers for those acts, though not warranted by the laws of the rightful government.”
and then conceded
“. . . that to the extent of its actual supremacy, however gained, in all matters of government within its military lines, the power of the insurgent government could not be questioned; that though that supremacy did not justify acts of hostility to the United States, it made obedience to its authority in civil and local matters not only a necessity, but a duty; and that without such obedience civil order was impossible.” (See (1873) 15 Wallace at p.227). This is an acknowledgement of the principle of necessity or implied mandate to a rebel authority, to keep law and order in the usurped enclave, subject to non-recognition of any act that would promote the rebellion or subvert the sovereign state. The court seemed to make its declaration on this subject more pointed in HORN v. LOCKHARD (1873) 17 WALLACE 570 (84 U.S.) by making open reference to all departments of government. There Field J. , again delivering the opinion of the Supreme Court, said – (p. 660).
“We admit that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace.
No one that we are unaware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution. “
Throughout these cases, the trend is clearly that a very important restraining factor in granting recognition to acts of a usurper in the rebel enclave, be such acts executive, judicial, or legislative, is that the acts must not have been set towards furthering the aim of the rebellion. Subject to this, the court recognised that effect must be given to activities for the protection of life and property of the people living in the rebel enclave. On the facts of all these cases, we agree with the reasoning of the Supreme Court of the United States.
Indeed, we think that it was also these principles that Cardozo, J. referred to as fundamental principles of justice or public policy, when in SOKOLOFF v. NATIONAL CITY BANK (1924) 239 N. Y.158 ; 145 N. E. 917, he said (p.918)
” . . .. ‘The possibility that a body or group which has vindicated by the course of events its pretensions to sovereign power, but which has forfeited by its conduct the privileges or immunities of sovereignty, may gain for its acts and decrees a validity quasi-governmental, if violence to fundamental principles of justice or to our own public policy might otherwise be done’. “and when Lord Pearce interpreted it as the principal of necessity or implied mandate in Madzimbamuto v. Lardner Burke (1969) 1 A.C. 645, we think he was fully justified. In that case, he said (p. 732)
“I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful (1961) Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the Policy of the lawful Sovereign. This last, i. e. , (c) is tantamount to a test of public policy. “
In Cyprus, the position also seems to be the same. In the ATTORNEY-GENERAL OF THE REPUBLIC v. MUSTAFF IBRAHIM AND ORS. (1964) CYPRUS LAW REPORT 195, the question was whether the Court would read the doctrine of necessity into the Constitution of the Republic of Cyprus having regard to the situation where “Greek Judges, lawyers, litigants and public could not have access to courts situated within areas held by the armed forces opposing the State; and Turkish Judges, lawyers, had to obtain permission from commanders to move out from areas controlled by the State Government.”
The court gave a unanimous and unhesitating affirmative answer. Triantafyllides, J. delivering the judgment of the Court held (p. 234)
“Even though the Constitution is deemed to be a supreme law limiting the sovereignty of the legislature, nevertheless, where the Constitution itself cannot measure up to a situation which has arisen, especially where such situation is contrary to its fundamental theme, or where an organ set up under the Constitution cannot function and where, furthermore, in view of the nature of the Constitution it is not possible for the sovereign will of the people to manifest itself, through an amendment of the Constitution, in redressing the position, then, in my opinion according to the doctrine of necessity the legislation power, under Article 61, remains unhindered by Article 179, and not only it can, but it must, be exercised for the benefit of the people.”
The case of Madzimbamuto v. Lardner Burke, to which we have already made reference (supra), especially the minority decision of Lord Pearce, was heavily relied upon by the learned counsel for the Appellants in the instant case and indeed, that case deserved a thorough examination. The facts are as follows:
On November 5, 1965, a state of Emergency was proclaimed in Southern Rhodesia by the Governor and Emergency Regulations were made under which the Minister of Justice and the Colony lawfully made an order for the detention of Madzimbamuto on the ground that he was likely to commit acts in Rhodesia which were likely to endanger public safety.
On November 11, 1965, the Prime Minister of Southern Rhodesia issued a unilateral declaration of independence purporting to declare that Southern Rhodesia was no longer a crown colony but an independent sovereign State.
On November 16, 1965, the United Kingdom Parliament passed the Southern Rhodesia Act, 1965, which declared that Southern Rhodesia continued to be part of her Majesty’s dominion. The Prime Minister and his colleagues were dismissed but they disregarded their dismissal from office. They adopted the new Constitution of 1965 established by the illegal regime. The lawful State of Emergency under which Madzimbawas detained expired in February 1966 but his detention continued under the Emergency Regulations made by the illegal regime.
One of the questions for decision was as follows: if the usurping government which was in control at the time could not be regarded as lawful government, to what extent if at all were the courts of Southern Rhodesia entitled to recognise or give effect to its legislative or administrative acts. The Privy Council in a majority decision did not believe that the question of necessity or implied mandate arose for decision in the case. The Court, as per Lord Reid, delivering the opinion of the Board, while not dismissing the existence of the doctrine said:
“It may be there is a general principle depending on implied mandate from the lawful sovereign, which recognises the need to preserve law and order in a territory controlled by a usurper. But it is unnecessary to decide that question because no such principle could override the legal right of the Parliament of the United Kingdom to make such laws as it may think proper for territory under the Sovereign of Her Majesty in the Parliament of the United Kingdom . . . .”
However, Lord Pearce, who, as we have earlier stated, accepted the existence of the doctrine, set out facts which led him to hold that it should be applicable to the case. He said:
“The Judges lawfully appointed under the 1961 Constitution and representing its judicial power, have been entrusted by both sides with the duty of continuing to sit. They have continued to sit as Judges under the 1961 Constitution although the country is in the control of an illegal government which does not acknowledge or obey that Constitution and does not acknowledge any right of appeal to their Lordships’ Board. This is an uneasy compromise, which has been adopted by both sides from, no doubt, a consideration of many factors. The primary reason, one presumes, is the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of a all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful. This would accord with the common sense view expressed by Grotius.
For this reason it is clearly desirable to keep the courts out of the main area of dispute, so that whatever by the sanctions or other pressure employed to end the rebellion, the courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order. Such a compromise is bound to create difficulties in its application.” (see (1969) 1 A.C. at p.737, B- E)
He warned, and we agree with him
“This compromise can be brought to an end by either side. Such a step, however, would be an act of policy. It would no doubt, not be taken by either side without a full and anxious consideration of what other situation is both preferable and practical. This is a matter which is outside the scope and powers of a judiciary.” (See (1969) 1 A.C. at 737 E-F.
He then enumerated positive acts of the lawful government which indicated the preparedness of the government to compromise with the rebel regime. He said
“(a) The lawful Government through the Governor on November 11 announced that all the Ministers had been dismissed and gave the following directive to its citizen:
“I call on the citizens of Rhodesia to refrain from all acts which would further the objectives of the illegal authorities. Subject to that, it is the duty of all citizens to maintain law and order in this country and to carry on with their normal tasks. This applies equally to the judiciary, the armed services, the police and the public service.”
(b) That directive was repeated on November 14 in identical terms with the addition of the following:
“I have been asked by Mr. Smith to resign from my office as Governor. I hold my office at the pleasure of Her Majesty The Queen, and I will only resign if asked by Her Majesty to do so. Her Majesty has asked me to continue in office and 1 therefore remain your legal Governor and the lawfully constituted authority in Rhodesia.” “It is my sincere hope that lawfully constituted Government will be restored in this country at the earliest possible moment, and in the meantime I stress the necessity for all people to remain calm and to assist the armed services and the police to continue to maintain law and order.” (see (1969) 1 A.C. 737-738).
(c) That directive has never been altered, countermanded or superceded. There is a lawful Governor and the lawful Government has a right to govern and to tell its citizens what are its wishes or its policy. It has chosen to leave the directives of November 11 and 14 in force.
(d) No provision (we are told) was made for payment of the Judges’ salaries (or indeed those of the other services) by the lawful Government and presumably it intended that they should be paid by the illegal government out of taxes illegally collected for so long as the rebellion continued in force.
(e) Not only did the lawful Government acquiesce in the Judges (and the other services) carrying on as they did, and receiving their salaries from the illegal government, but two years later, in 1967, when the Chief Justice had to be absent from Rhodesia, the lawful Government appointed one of the Judges, Sir Vincent Quenet, as Chief Justice. This was one of its very few acts of government since November, 1965, and it appears to be ratificaor confirmation of the Judges’ conduct in carrying on according to the mandate given by the Governor in November, 1965.”
The acts of the illegal regime also approving of this compromise were also listed. The learned law Lord said of the illegal regime
“(a) It has acquiesced in the Judges carrying on as they have done, by allowing them to sit, by acknowledging and enforcing their judgments, by paying their salaries, and so forth.
(b) The Judges appointed under the 1961 Constitution have been deemed by the unlawful government to sit under the unlawful 1965 Constitution (see section 128 (1)) and have not so far been asked under section 128 (4) to swear allegiance to the 1965 Constitution.”
It is clear from the judgment of Lord Pearce that his application of the doctrine of necessity or implied mandate to the case was based mainly on the apparent compromise by both the sovereign State and the illegal regime that the judiciary should continue to function and the existing Judges should carry on. He also made the application of the doctrine subject to termination by either side. Upon the facts, as carefully stated by the learned Lord, we have no difficulty in agreeing with his reasoning and his application to the case of the doctrine of necessity or implied mandate.
After a very careful review of all the decided cases and opinions of jurists to which we have referred, it is the considered view of this court that the doctrine of implied mandate or necessity is applicable to a domestic rebellion (such as the Nigerian Civil War of 1967 to 1970) as distinct from international conflict or war. Accordingly, the judicial acts of a Judge or Court within the rebel enclave ought, in our view, to be considered valid, if, but only if
(1) such acts are not, and cannot be construed to be, in furtherance of the rebellion, and (2) the policy of the lawful sovereign (i.e.) the lawful Government is neither expressly nor by implication against implying such a mandate.
Where however it is shown that the policy of the legitimate government is expressly or by necessary implication against such application, it is not for this court to question the wisdom of such policy. The court will simply refuse to apply the doctrine.
What is an “appropriate case” will however depend on the surrounding circumstances. And it is only to this extent we approve of the dictum of Lord Scarman in Re James (An Insolvent) (1977) 2 W.L.R. 1 when he said (p. 18)
“I do think that in an appropriate case our courts will recognise the validity of judicial acts even though they be acts of a Judge not lawfully appointed or derive their authority from an unlawful government.”
Chief Williams, we have earlier pointed out, has already conceded that all executive, legislative and judicial acts of a rebel government during the period of a rebellion were illegal in so far as they were made in furtherance of the rebellion or for the sustenance of the rebel regime. We entirely agree with this submission of learned counsel, but we are firmly of the view that this is not only the restraining factor. We think that apart from this restraint, where there is evidence of any act whatsoever, the lawful sovereign, signifying opposition as a matter of policy to the application of the doctrine of necessity or implied mandate, the court will not apply it.
Another submission by Chief Williams was that during the civil war the Judges in the rebel enclave were to be regarded as sitting as Judges of Eastern Nigeria. We cannot accept this submission. With respect, even if the principle of necessity or implied mandate were applicable to the Nigeria situation, to admit that the Judges in the rebel area were, during the rebellion, to be regarded as sitting as Nigerian Judges would be carrying the principle too far. Recognition of the acts of the Judges in the rebel enclave during the rebellion could not, in effect, amend the Nigerian Constitution by creating a court, unknown to the Nigerian Constitution, referred to as the “High Court of the Republic of Biafra”, and functioning as a Nigerian court. We think Lord Denning, in Re James (supra), fell into the same error when he said that the courts in Southern Rhodesia during rebellion remained, “in the eyes of the law, British Courts”. As Lord Scarman rightly pointed out in that case, we think it is a fallacy to so conclude.
It now remains for us to examine the circumstances of the instant case, and the earlier decisions of this court to which we have been referred, to determine whether the principle of necessity or implied mandate would apply.
We will deal with Legislation first. We have, while stating the facts, already referred to the State (Appointment of Military Governors) Order 1967, L.N. 481967 under which Lt Col. C.O. Ojukwu was appointed the Military Governor of the Central Eastern State following the creation of states. After declaration of secession, there was the Revocation of Appointment of Military Governor, Col. Ojukwu Order 1967, L. N. 66 of 1967, which revoked the appointment of Ojukwu as the Military Governor of Central Eastern State.
As soon as some parts of the South Eastern State were liberated from the rebel occupation, the Administration of Justice (South Eastern State) Decree No. 34 was passed on 4th August, 1967 constituting the liberated areas into Magisterial Districts, establishing a magistrates’ court for each district and assigning thereto a magistrate each. The Decree also applied the enactments of the former Eastern Nigeria relating to the functions, powers and jurisdiction of a Magistrate, to each of the Districts thus established.
By 15th November, 1967 the Administration of Justice (Eastern States) Decree 1967 No. 48 was passed. The effect was to create every administrative division of the three Eastern States as a Magisterial District, establish a Magistrate’s Court and assigns a magistrate to each District but, more importantly, it vested the Head of the Federal Military Government with discretion to assign any number of magistrates to each District. Section 2 of the Decree vested the power of appointment of magistrates for the Districts in the Head of the Federal Military Government, notwithstanding anything to the contrary in any other legislation thus giving the Head of the Federal Military Government, contrary to the existing law so far, a firm control in the appointment and assignment of these judicial officers. It is to be pointed out that with the passing of the Decree, the Administration of Justice (South Eastern States) Decree 1967 No. 34 became redundant and was accordingly repealed.
This responsibility of the Head of the Federal Military Government to appoint and assign magistrates continued until 15th October, 1969 when it was possible to appoint an Administrator for Enugu and other liberated areas of the Central Eastern State, and the Central Eastern State (Administration) Decree 1969 No. 46, which vested the executive powers of the Central Eastern State in the Administrator, was passed. The Decree revoked Decree No. 48 of 1967. We take judicial notice of the fact that at the earliest opportunity after this, the Administrator appointed a Judge for Enugu and the liberated areas of the Central Eastern State.
So far for Legislation. As regards other acts, this court has, in IKE AND ORS. v. NZEKWE AND ORS. (1975) 2 S.C.1, taken judicial notice of the policy of the Federal Military Government. Elias, C.J.N. in delivering the judgment of the Court said at page 6
“It is sufficient for us to observe that both these cases must surely be subject to the overriding consideration of State policy as declared by the Supreme Military Council having the force of law in Nigeria. The series of decisions beginning with that in Ikegbu & Ors v. Ukaefi & Ors. up to and subsequent to Okwuosa v. Okwuosa, far from having been arrived at by this court per incuriam, have in fact been based upon the premise that judicial notice should be taken of the Supreme Military Council declare and ruling to the effect that, so far as the Judges and the courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for the entire duration of the civil war, and that this period of rebellion should not count for seniority and pension purposes. “
Incidentally, throughout the argument in this case, the fact of this declaration and ruling by the Supreme Military Council, which has the force of law, was never challenged, and rightly in our view. This was the policy of the lawful government during the rebellion and as we have earlier said in this judgment, it is not for this court to question the wisdom.
In regard to his issue of policy, what Elias, C.J.N. said in the Ike v. Nzekwe case accords with the view taken by Lord Pearce in the Madzimbamuto case. It is to be appreciated, as Lord Pearce said in that case, that an act of policy would not be taken without a full and anxious consideration of what other situation is more preferable and practical. In any event, again to quote Lord Pearce, is a matter, which is outside the scope and powers of a judiciary.
From all the enactments which were passed by the Federal Military Government during the rebellion and the declaration of policy as stated (supra), it is clear to us that the Federal Military Government had no intention whatsoever of yielding any ground in regard to executive, administrative or judicial power to the rebel regime during the rebellion and in particular, in so far as the Judges in the enclave were concerned, the policy was that they were to be on compulsory leave without pay throughout the period of the rebellion, but they were certainly not to function in any circumstance. That fact that the declaration of policy was made ex post facto does not detract from the validity. All that is required by the court is evidence, if any, of what the policy was at the material time.
This attitude by the Federal Military Government was clearly the opposite of the action of the lawful sovereign in the Madzimbamuto case where the lawful government not only called upon the citizens in the rebel colony to maintain law and order but positively made such declaration applicable to the judiciary. The lawful government in that case also appointed one of the judges in the rebel colony to act as the Chief Justice when the substantive holder was absent. While the policy revealed in the Madzimbamuto case was almost one of clear mandate to the rebel regime, the action of the lawful government in Nigeria, through legislation and declaration of policy, was absolutely one of negation of such mandate.
We have come to the inevitable conclusion therefore that upon all the authorities thus examined and on the available facts and Legislation, the principle or necessity or implied mandate cannot apply to the Nigerian situation and the decisions of this Court in the cases referred to in the ground of appeal and said to have been made per incuriam were rightly given.Ground (xviii) therefore fails.
On the two alternative grounds of appeal, Chief Williams’ submission is simply that if ground (xviii) fails, then there is a statement of claim which was ordered by a Judge during rebellion and which is consequently void. But as the writ was regularly issued, the case should be remitted back to the High Court. Learned counsel relied on MCFOY v. U. A. C. (1962) A. C. I52.
The learned Judge held, and this forms the basis of the complaint of Chief Williams in ground (xx), that this case is not caught by the judgment of this Court which regards as void writs issued during the period of rebellion as the case was reactivated after the rebellion and pleadings were exchanged afresh. It is clear on the record that the statement of claim, which was re-served on the defendants after the rebellion, was the one, filed during the rebellion. It is the statement of claim, which formed the basis for the hearing of the case, upon which evidence was led, and upon which the trial Judge based his judgment.
In Uttah v. Independence Brewery Limited (1974), 2 S.C. 7, the action was properly commenced at the Umuahia High Court in the former Eastern Nigeria. The pleadings, which were filed, were also properly ordered and filed as they were filed sometime in November 1966 before the commencement of rebellion. The action nevertheless proceeded in the so-called “High Court of Biafra” from December 28, 1967 when the trial Judge made an order appointing a referee. The referee delivered a report. The matter was continued and concluded by the same Judge after the end of rebellion in the High Court of the Umuahia Judicial Division of the East Central State.
On appeal, Elias, C.J.N. in delivering the judgment of the Court, at page 10, held:
“It seems clear to us that the action was properly commenced within time and according to the Rules of the High Court of Eastern Nigeria as these existed up to and including May 26, 1967 but that subsequently to that date, all proceedings in the case before the High Court of the illegal regime must also be declared a nullity. The justice of the case demands however, that since it was properly before a competent court prior to the intervention of the rebellion which made it impossible for the case to proceed, the present case should be remitted back to the newly constituted Umuahia High Court for a retrial from the point in May 1967 when proceedings were interrupted.”
The writ in the instant case was properly filed. What happened subsequent to the writ was a nullity. The statement of claim having been filed in a court not known to the Constitution of Nigeria was a nullity. All the subsequent proceedings in the so-called High Court of Biafra were null. When the action was subsequently continued in the High Court of East Central State on 6th January, 1971 the proceedings were based on a null statement of claim and therefore all those subsequent proceedings were also null. This was the view of this court in Uttah v. Independence Brewery Limited (supra). We will therefore take the same course as was taken in that case. The justice of this case demands that since there was a proper writ of summons in a rebel enclave can it, with good measure, rely on the decision of such tribunal to establish a plea of estoppel per rem judicatam, autrefois acquit and autrefois convict in any other court (not necessarily a domestic court) in circumstances where upon the established principles of Res Judicata, autrefois acquit and autrefois convict the pleas can properly be sustained.
Had the doctrine been applicable to the case on appeal it is my view that, on a true application of the same, the Judges sitting in ‘Biafra’ albeit in courts styled by the usurper as “the High Court of the Republic of Biafra” – and applying the laws made by the lawful sovereign would ‘in the eyes of the law’ be regarded as functioning by the implied mandate of the lawful sovereign; in those circumstances – unless the doctrine is to be applied short of its logical and legal conclusion – they (the Judges sitting in Biafra) would, ‘in the eyes of the law’ be regarded as sitting as Judges of Eastern Nigeria (or the Central Eastern State). The basis of the majority judgment in Re James (Supra) stems from the view that there had been a “complete break” from the lawful sovereign by the ‘Usurper’. That view, with respect, appears to me to beg the issue. It is well known that there never has been any love lost between a Usurper and the lawful sovereign. From the very beginning he (the Usurper) intends to break away from the lawful sovereign; in the end he may or may not succeed.
The doctrine of implied mandate, in my view, is based on different considerations (already stated in the judgment of this court); it applies because, it is said that the lawful sovereign intends to avoid chaos in the rebel enclave (part of his domain), during the period of the struggle for complete break which may or may not succeed in the end. It does not apply where by express legislation or by inference from the actions of the lawful sovereign it can be shown that the lawful sovereign never wished that the doctrine should apply to events which occurred during the period of a rebellion. That is the position in the case under appeal.
At a very early state of the rebellion, to be precise, on 1st July, 1967 the lawful sovereign by the Revocation of Appointment of the Military Governor Order 1967 L.N. 66 of 1967 revoked the appointment of Lt. Col. Ojukwu as the Military Governor of the Central Eastern State. Prior to that, the lawful sovereign had first split the former Eastern Nigeria (of which Lt. Col. Ojukwu was the lawful Military Administrator) into three separate Eastern States viz: – the Central Eastern State, Rivers State and the South Eastern State, and appointed Lt. Col. Ojukwu the Military Governor of the Central Eastern State. [See (1) States (Creation and Transitional provisions) Decree No. 14 of 1967 of the 27th May, 1967 and (2) States (Appointment of Military Governors) Order 1967 L.N. 48 of 1967].
Secondly, on 15th November 1967 by the Administration of Justice (Eastern States) Decree No. 48 of 1967 the lawful sovereign manifested its intention to control the Judiciary of the rebel area – at least a part thereof – the Magisterial Bench. By that Decree, it was unquestionably the intention of the lawful sovereign, wherever possible, to deal with the machinery of the Administration of Justice; the control and administration of the magisterial bench was no longer left with any executive arm of the Government nor with the Head of the Judiciary in the Eastern States (all of which were areas initially in the command of the Usurper or Usurping Authority).
Thirdly: While the rebellion was still on and as soon as Enugu and other parts of the Central Eastern State were liberated the lawful sovereign appointed an Administrator for the Central Eastern State with executive powers; and, soon after this, a High Court Judge for the area was also appointed. Finally, there is the Declaration and Ruling of the Supreme Military Council soon after the rebellion had ended that so far as “the Judges and the Courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for the entire duration of the civil war. . . . “Undoubtedly, this and the foregoing steps taken by the lawful sovereign reflect and sum up its policy on the administration of justice during the entire period of the civil war and it is a far cry from the truth, in the face of these steps, for anyone to say that the lawful sovereign intended that the doctrine of implied mandate or necessity ought to apply in relation to judicial acts which took place in the rebel enclave during the rebellion; it is on this ground alone that there is no room for holding that the Judges who sat in the courts in the rebel enclave – courts, styled by the rebel regime as the courts of “the Republic of Biafra” – cannot in the ‘eyes of the law’ be regarded as having sat as Judges of the High Court of Eastern Nigeria (or the Central Eastern State). It necessarily follows, therefore, that proceedings in these courts were null and void.
With respect to the view expressed in the portion of the judgment of the court under consideration, it does not appear to me that any question arises under this doctrine as to the amendment of our Constitution, so as to give validity to a court unknown to it, by the mere fact of recognition of the acts of Judges or judicial officers within the rebel enclave. On the contrary, the lawful Constitution (i.e. the Constitution of the lawful authority) clearly overrides the Constitution, if any, and other statutory enactments of the Usurper, and the validity of any judicial act done within the rebel enclave can only derive from, and within the limits of, the doctrine of implied mandate (as already explained in the judgment of the court) or by any express validating enactment of the lawful sovereign.
The facts and circumstances of the case on appeal (and for the matter of the Nigerian rebellion as a whole) are not quite the same as those which gave rise to the decision in Re James (Supra). Save to the extent, therefore, of what views can be inferred from my observations here, I express no specific views on the majority and minority judgment in Re James (Supra). Accordingly, while I agree with the ratio decidendi of the decision in the case in hand, I wish to make it clear that I am unable to subscribe to the underlined portions of the judgment of the court earlier on set out by me. The appeal from the judgment of the lower court is allowed and I agree as expressed in the judgment of this court, that the proceedings in the lower court subsequent to the filing of the writ in the High Court of Eastern Nigeria are null and void and that consequently this case be remitted back to the High Court, Owerri Judicial Division in Imo State for hearing after pleadings have been ordered by the court, filed and delivered by parties in that court.
Chief F.R.A. Williams (SAN)…..For Appellant
C. Ofodile…..For Respondent