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| Gov. Ben Ayade |
Three days ago, I filed a suit at the Federal High Court, Calabar, challenging the action of the Governor of Cross River State in creating the ministries of Aviation, Foreign Affairs and Solid Minerals. The Governor and the State Government will certainly be served with the court process this week. So, ordinarily, every discussion on this should have been shifted to the court, that is what I decided to do, until I just saw a write up by the Commissioner for Aviation, Jake Otu Enyia, who incidentally is not just a lawyer but law teacher.
His write up, with the greatest respect, is not just watery but deliberately misleading, although I had written a brief exposé on this before I filed the case in court, I decided to do this rejoinder, more detailed, to wed the law to the facts and beam some legal light to the darkness his write up is capable of brewing in the minds of the people.
Take your time to read this if you really want to know the position of the law on this issue.
Dr Jake Otu Enyia formulated several issues in his write up but I will formulate just one issue for discussion as follows:
"Whether by the true construction and interpretation of Sections 1, 4, 5 and 193 (1) and Part I, items 3, 26, 39 and 68 of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Governor has breached the provisions of the said Constitution by establishing or creating the Ministries of Aviation, Foreign Affairs and Solid Minerals and appointing certain persons as commissioners in charge of those Ministries?"
THE POWERS OF THE GOVERNOR TO CREATE GOVERNMENT MINISTERIES AND APPOINT COMMISSIONERS
The powers of the Governor of Cross River State to create Government Ministries and appoint Commissioners to run these ministries was donated to him by section 5, subsection 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This said Section 5 states as follows:
“(2) Subject to the provisions of this Constitution, the executive powers of a State –
(a) Shall be vested in the Governor of that State and may, Subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and commissioners of the Government of that State or officers in the public service of the State; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
Section 193 (1) of the Constitution throw more light on the Governor’s powers to appoint Commissioners thus: “The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of the Government of that State, including the administration of any department of Government.”
We have established that the Governor has constitutional powers to create ministries and appoint commissioners to run those ministries, pursuant to Section 5 (2) of the Constitution. Section 193 (1) points out clearly that these commissioners are appointed or assigned by the Governor of a state to take “responsibility for any business of the Government of that State.”
This goes to show, clearly, that the Governor of a state cannot create a ministry or government department and appoint or assign a commissioner thereto for a business which is NOT the business of the state government, constitutionally speaking.
So, is Aviation, Foreign Affairs and Solid Minerals the business of the government of Cross River State or any other state government in Nigeria?
CONSTITUTIONALLY SPEAKING, WHAT IS THE BUSINESS OF A STATE GOVERNMENT IN NIGERIA?
We can answer this question by looking at the Constitution. The Constitution itself provides a clear answer as to what is the business of the Federal Government and that of a State Government. The business of a state government is not left to speculation, it is as contained in sections 5 (2) and 193 (1) of the Constitution; the business of a state government in Nigeria as vested, held, expressed and exercised by a state governor is nothing more or less than the executive powers and functions contained in section 5 (2) of the Constitution, supra.
The depth and complexion of these executive powers is also not left to speculation, it is defined by the constitution. Section 5(2) states that “Subject to the provisions of this Constitution, the executive powers of a State –
(a) Shall be vested in the Governor of that State and may, Subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and commissioners of the Government of that State or officers in the public service of the State; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.
So, the executive powers in Section 5 (2) (a), which the Governor can exercise through Commissioners and which section 193 (1) says “The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of the Government of that State, including the administration of any department of Government”; in accordance with Section 5 (2) (b) “shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
So, the executive powers of the Governor, the exercise which is the business of government, and which and only which he can pass to the Commissioners, “…extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
In more words, the Governor only has powers to create ministries and appoint commissioners “in execution and maintenance of:
a) this Constitution, (the 1999 Constitution)
b) all laws made by the House of Assembly of the State
c) and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
In other words, if the Governor created a ministry or appointed a Commissioner which is not directly in maintenance of the Constitution or any law made by the House of Assembly, it must be in a matter or area where the House of Assembly has for the time being power to make laws.
So did the Governor create the ministries of Aviation, Foreign Affairs and Solid Minerals and appoint Commissioners thereto in direct execution and maintenance of any section of the Constitution? No, sir. No letter or word in the Constitution empowers the Governor to create these ministries or appoint the Commissioners.
It was held in the case of A.G Abia & Ors vs A.G Federation (2004 – 2007) 3 LLRN p. 1260 (Page 1326, Para 25-45; Page 1327, para 5), that a person or body named in the constitution with its functions spelt out therein cannot perform any other statutory function which is not borne out of the Constitution.
The Governor is a person or body named in the Constitution and its function spelt out clearly; none of these functions is to create the ministries of Aviation, Foreign Affairs and Solid Minerals. One of the 12 principles of interpreting the Constitution as espoused by Obaseki, JSC, in the case of A.G Bendel State vs A.G Federation & Ors (1981) 10 SC 1 at 77-79, is that a specific power must be granted or it cannot be exercised. I submit that the powers to create ministries or government departments on items listed in the Exclusive Legislative List were never granted to the Governor of Cross River State.
Did the Governor create these ministries pursuant to a law made by the Cross River State House of Assembly? No, sir. There is no law made by the House of Assembly that empowers the Governor to create the ministries of Aviation, Foreign Affairs and Solid Minerals; and even if there is such a law, it will be unconstitutional, therefore null and void, we shall show this presently.
WHICH MATTERS DOES THE CROSS RIVER STATE HOUSE OF ASSEMBLY HAVE POWERS TO MAKE LAWS ON FOR THE TIME BEING?
Pursuant to Section 5(2)(b) of the Constitution the executive powers of the Governor to create ministries and appoint Commissioners to run the business of government “shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.” This is the only way to determine what is the business of the state government, as stated in Section 193 (1) of the Constitution.
How then can we determine the “all matters with respect to which the House of Assembly has for the time being power to make laws”? Again, the almighty constitution provides the answers.
Section 4 (6) of the Constitution states as follows: “The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –
a) any matter not included in the Exclusive Legislative List set out in Part l of the Second Schedule to this Constitution;
b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
See Gadi vs Male (2010) 7 NWLR (Pt. 1193) p. 225; Speaker K.S.H.A vs Adegbe (2010) 10 NWLR (Pt. 120) p. 45; A.G. Abia State vs A.G. Federation (2002) 6 NWLR (Pt. 763) 264 at 424, 458, 468-469; 473-474 and 475; A.G. Ondo vs A.G Federation (2002) 9 NWLR (Pt. 772) 222; A.G Lagos vs A.G Federation (2003) 35 WRN, (2004 – 2007) 33 LRN p. 1433;
A quick glance at the “Exclusive Legislative List set out in Part l of the Second Schedule to this Constitution”, will show that Aviation, Foreign Affairs and Solid Minerals are listed as items 3, 26 and 39 respectively; meaning these are matters included in the Exclusive Legislative list which the Cross River State House of Assembly has for the time being NO powers to make laws on. And thus the Governor of Cross River State cannot exercise executive powers in these areas by creating ministries or appointing Commissioners in these areas.
I submit that the creation and/or establishment of the ministries of Aviation, Foreign Affairs and Solid Minerals by the Governor and appointing Commissioners thereto is ultra vires, unconstitutional and therefore null and void. This is a desecration of the Constitution that cannot be allowed to stand.
Section 1 (1) of the Constitution declares that “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If 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.”
See Cadbury (Nig) Plc vs F.B.I.R (2010) 2 NWLR (Pt. 1179) p. 561; Governor, Ekiti State vs Olubunmo (2017) 3 NWLR (Pt. 1551)
It was held in the case of Anyaoha vs Obioha (2014) 6 NWLR (Pt. 1404) p. 445, that the Constitution is a very serious document and should not be treated with levity.
In the case I have already filed in court, I called upon the Honourable Court, in the wisdom contained in the decisions of the Court in Eze vs Governor, Abia State (2010) 15 NWLR (Pt. 1216) p. 324 and Adeleke vs Osun State House of Assembly (2006) 16 NWLR (Pt. 1006) 608, to hold and reason that a Constitution must always be construed to protect and guide what it is meant to protect and guide.
The Court also held in Eze vs Governor, Abia State, supra, that the interpretation and the construction of the Constitution must be literal. The meaning of its words must not be searched beyond what the Constitution stated. It must not be construed with ambiguity or mistake to its framers. It must not be subordinated to any other law or authority. It was also held that it is the duty of the courts to interpret the Constitution to sustain democratic governance on the rule of law. This is what, with the utmost respect, we are inviting the Court to do in suit we just filed against the Governor. See also F.R.N vs Osahon (2006) 5 NWLR (Pt. 973) 361.
We believe that within 24 hours, the Governor and the Cross River State Government will be served with the court processes which have already been filed and we shall meet in court to settle this one way or the other. I believe that the Governor being a lawyer will appreciate this move and will also want to hear what the courts have to say. The Governor, also, still has the time to reverse himself on the creation of these illegal ministries and we will immediately withdraw our case in court.
We know the governor means well; but it is a very risky thing to allow our leaders in a democratic set up, under the rule of law, to start “meaning well” outside the confines of the law.
The writer, First Baba Isa (FBI), is a Legal Practitioner.
[email protected]; 07037162029
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