Professor Ben Nwabueze (SAN)
December 13, 2005
1. It is amazing that an English High Court should have abandoned the high standard of its judgments which has earned for it the respect of millions across the world to render a judgment 80 misconceived, ill-informed and perverse, a judgment so thoroughly riddled with demonstrable inconsistencies, contradictions, distortions and inaccuracies. The Judgment reads like a not too competent attempt, indeed a biased attempt, to rationalisea decision already pre-determined before arguments against it were heard. All the approbating and reprobating underline the danger posed to justice by a judge reaching a decision in a case before hearing arguments.
THE CONFUSING OF STATEIMMUNITY UNDER PART 1 OF THE STATE IMMUNITY ACT (SIA) 1978 WITH DIPLOMATIC IMMUNITY UNDER SECTION 20(i) IN PART 111 OF THE ACT
2. State immunity, which belongs to a state, although individuals exercising powers and functions of the state benefit from it, is something different from diplomatic immunity which is conferred, not on the state or a constituent territory of a state, but on individuals by the Diplomatic Privileges Act (DPA) 1964 and section 20(1) of the SIA 1978. The confusing of the two things is evident from paragraph 9 of the Judgment. The particular passage in the paragraph need not be reproduced here.
3. Governor Alamieyeseigha's claim is for state immunity, but is, significantly, based not on the SIA 1978, but on the common law incorporating customary international law. His claim to state " immunity could not have been based on Part I Qf the SIA 1978, since the Act specifically provides in section 16(4) that Part I does not apply to criminal proceedings. It might have been plausible for the Court to have ruled that the common law immunity is excluded by Part I of the SIA 1978, but it did not advert to the point at all. The Judgment proceeded on the basis of state immunity under the common law incorporating customary international law. The court must therefore be taken to have decided that the common law state immunity is not excluded by Part I of the SIA 1978.
CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES AS AN ESSENTIAL PREREQUISITE FOR STATE IMMUNITY
4. The approbating and reprobating on the part of the court is manifested most amazingly in respect of the question whether capacity to enter into relations with other states is an essential prerequisite for state immunity. In the leading Judgment, Silber J. declares, in one breath: "I am driven to the conclusion that because of the Mellenger case, the fact that a part of Federal State does not conduct international relations does not mean it cannot automatically be entitled to State Immunity" - paragraph 30. Earlier in paragraph 28, he declares: "We are bound to follow it," i.e. the Mellenger case. Collins J, in his concurring judgment, also declares that "we are of course bound by the decision" - paragraph 55. The Court also acknowledges that the SIA 1978 does not recognise capacity to enter into relations with other states as a prerequisite for state immunity. "That is clear," says Collins J in paragraph 55 of the Judgment, "from the 1978 Act itself which, by s.14(5), enables Her Majesty by Order in Council to provide for any provisions of the Act to apply to a constituent territory of a federal state, i.e. to grant immunity to a sub-state." ...
5. Mellenger. a decision of the Court of Appeal. (Lord Denning M.R., Salmon and PhilHmore L.JJ) , is not the only common law decision by the courts in England in which a state lacking the capacity to enter into relations with other states was nevertheless held entitled to state 'immunity. There are at least three other cases:
(i) Duff Development Co. Ltd v. Government of Kelantan
 A.C. 797 - a decision of the House of Lords. The state of Kelantan did not have that capacity because of a treaty with Britain by which the Sultan of Kelantan "agreed to have no political relations with any foreign power except through the medium of the King" of England. The other limitations imposed on the sovereignty of Kelantan by this treaty were, in the words of Lord Cave, speaking for the House of Lords, "extensive". (ii) Mighell v. Sultan or Johore  1 Q.B. 149 - a Court of Appeal decision. The State of Johore was treated as a sovereign state and its ruler, the Sultan, as entitled to state immunity, notwithstanding that by treaty the Sultan had "bound himself not to negotiate treaties or to enter into any engagement with any foreign state". (iii) Sayce v. Ameer Ruler Sadiq Mohammad Abbasi Bahawalpur one of the Indian native State (1952] 2 All E.R. 64 - another decision of the Court of Appeal. Although before the independence of India ,in 1947, the State of Bahawalpur, one of the Indian native states, was treated as an autonomous state, its foreign relations, like the foreign relations of the rest of India, were conducted and controlled by Britain. On India's attainment of independence in 1947, Bahawalpur acceded to Pakistan (excised from India) as a constituent part of the Federation of Pakistan consisting of four provinces and the "acceded States and territories"; they enjoyed autonomy within the limits of "powers and authority" granted them by the Constitution, which excluded foreign affairs.
6. The decision in the three cases, all of which predated Mellinger, makes it unnecessary for the court to question whether the Court of Appeal in Mellenger was aware of or took into account the Province of New Brunswick's Jack of capacity to enter into relations with other states as provided in section 132 of the Constitution of the Federation of Canada. It would be unlike Lord Denning not to have looked at section 132 or not to have taken it into consideration. He must also have read the three cases noted above, as is clearly evident from his answer to counsel's argument: "It was", he said, "suggested by Mr. Kempster that the Province of New Brunswick does not qualify as a sovereign state so as to invoke the doctrine of sovereign immunity. But the authorities show decisively the contraty". Silber J. should not therefore have raised the question which, happily, he went on to answer by saying in paragraph 28 of the Judgment: "we must assume that the Court of Appeal was aware of that fact and that it considered that point. It must be assumed that Mellenger's case was not decided per incuriam"
7. In spite of all these authorities, including the SIA 1978, the court (Silber and Collins JJ.) accepted the prosecution's argument that capacity to enter into relations with other states is an essential pre-requisite for state immunity, and that since Bayelsa State does not have that capacity, it and its Governor, Chief Alamieyeseigha, are not entitled to state immunity. According to Collin J. at paragraph 52 of the Judgment :
"All the cases in which immunity has been granted to a substate show that it is possible, so far as English law is concerned, for such a sub-state which has no powers to deal with international relations to have state immunity. It is to be noted that most of the authorities have depended upon certificate from the relevant government departments that immunity exists" (emphasis supplied).
8. Happily, the court acknowledges that its conclusion based on the criterion of the capacity to enter into relations with other states might be wrong. "In case this conclusion is incorrect", it says, "the other possible relevant factors will now have to be considered" (paragraph 40). One such factor is the British Government's certificate as to the status of the country concerned. BRITISH GOVERNMENT'S CERTIFICATE AS TO THE GOVERNMENT OF A COUNTRY
9. The decisive role given to a certificate by the British Government is perhaps the most perverse aspect of the court's decision in this case. In the view of the court, the certificate of the Secretary of State is of "decisive importance in determining entitlement to State Immunity.......If the Secretary of State does not . consider that a particular country is to be recognised as a state for the purposes of enjoying State Immunity.......it cannot then be entitled to State Immunity" - paragraph 34.
10. If this is correct, then, the ipsa dixit of the Executive would have supplanted the law in all cases. If the Secretary of State were to issue a certificate stating" that the United States of America is not a sovereign state and is not entitled to state immunity, the court will be bound to accept it. The correct position was stated as follows by Lord Cave speaking for the House of Lords in Duff Development Co Limited v. Government of Kelantan, supra, at pages 805 - 806.
"It has for some time been the practice of our Courts, when such a question is raised, to take judicial notice of the sovereignty of a State, and for that purpose in any case of uncertainty to seek information from a Secretary of State; and when information is so obtained the Court does not permit it to be questioned by the parties". (emphasis supplied)
11. Thus, (a) the question of the sovereignty of a state has to be raised in proceedings before the court; (b) when so raised the court will take judicial notice of the sovereignty of a state where there is no uncertainty about it, as in the case of the United States; (c) in any case of uncertainty, it will seek information from a Secretary of State and will not in such cases permit the information to be questioned by the parties.
12. The position, as stated by Lord Cave in the quotation above, is n the basis of the relevant provisions in section 4 of the DPA 1964 and section 21 of the SIA 1978. By section 4 of the DPA 1964 "if in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate , issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact." The question must arise, which pre-supposes that there is uncertainty about the status of a country. Section 21 of the SIA 1978 also speaks of "any question whether any country is a State for the purposes of Part I of this Act.... "
13. In the light of the above, it is altogether unwarranted for Collins J to have said in the present case : "I appreciate that in Mellenger the Court thought that there was no uncertainty, but I am far from persuaded that that belief was correct. However, although we are of course bound by the decision, it seems to me that it is dependent on its own facts and cannot help to determine the result in the present case" - paragraph 55. It is simply amazing that a High Court, while acknowledging that it is bound, should nevertheless refuse to follow a decision of the Court of Appeal on such flimsy, obviously biased ground.
14. The Court's acceptance of the conclusiveness of the certificate issued on 26 September, 2005 by the Secretary of State in this Case is manifestly perverse. The certificate states as follows: "The Federal Republic of Nigeria is a State for the purposes of Part I of the Act. Bayelsa State is a constituent territory of the Federal Republic of Nigeria, a federal state for the purposes of Part I of the Act. Chief Alamieyeseigha is the Governor and Chief Executive of BayelsaState and is not to be regarded for the purposes of Part I of the Act as Head of State of the Federal Republic of Nigeria."
15. There are three significant things about this certificate of which account must be taken. First, it is factually a correct statement. Secondly, contrary to the assertion in paragraph 29 of the Judgment that the certificate stated that "Bayelsa State and the claimant are not entitled to State Immunity", it said no such thing at all. It avoids, apparently advisedly, saying anything on whether or not Bayelsa State and its Governor are entitled to state immunity; it leaves that to the Court to determine according as the claim is based on Part I of the SIA 1978 (which clearly denies such immunity) or on the common law incorporating customary international law.
16. Thirdly, the statement that "Chief Alamieyeseigha is the Governor and Chief Executive of Bayelsa State" has the same import and implication as the statement in the letter by the British Government in Sayce'sCase, supra, that "the defendant, within the limitations imposed by the arrangements contained in the establishment of Pakistan was a sovereign ruler of a State" - quoted in paragraph 29 of the Judgment. Regrettably, bias prevented the court from appreciating and giving due weight to the reference to Chief Alamieyeseigha as the Governor and Chief Executive of Bayelsa State which imports the status of a sovereign ruler in exactly the same sense as the ruler of Bahawalpur State, which is a constituent State within the Federation of Pakistan, with powers limited by the Pakistan Constitution, as in the case of Bayelsa State in the Federation of Nigeria.
17. The court's acceptance of the applicability and conclusiveness of the certificate issued by the Secretary of State in this case is manifestly perverse for the following reasons: (i) The certificate was issued by virtue 'of power conferred on the Secretary of State by section 21 of the SIA 1978 to issue such a certificate in respect of a claim of immunity under Part I of the Act. The certificate is valid and applicable only in respect of a claim of immunity under Part I of the Act, but not in respect of a claim of immunity under the common law incorporating customary international law, as in this case.
(ii) Part I of the Act applies only to civil proceedings, but not to criminal proceedings (section 16(4)); accordingly, since the certificate was expressly stated to have been issued for purposes of (ii) Part I of the Act, which does not apply to criminal proceedings, the acceptance of the certificate as applicable and conclusive in the criminal proceedings in this case is manifestly perverse. In the light of the terms of section 21 of the SIA 1975 conferring the power to issue a certificate, it is entirely beside the point to argue, as the court did: "it would be strange if a certificate that a particular country is or is not a State would be conclusive for civil proceedings but that such certificate would be of no value in criminal proceedings" - paragraph 32. A court of law must follow the law, however. "strange" it may appear to be. Besides, criminal proceedings involve the liberty of the individual, which should not be determined by the ipsa dixit of the Executive. There is no known case in which a certificate or letter by the Executive has been tendered and accepted as conclusive evidence against an accused person. .
(iii) Part I of the SIA 1978 applies to a sovereign or other head of state only when he is acting it a public capacity-,. not when. he is acting in a private capacity, as in the present. case. A . . certificate issued pursuant to part I of the Act, is inapplicable for this reason also.
NATURE OF NIGERIA'S SYSTEM OF GOVERNMENT UNDER ITS CONSTITUTION
18. The Judgment as it relates to the nature of Nigeria's system of government under its Constitution is so incredibly ill-informed and so full of inaccuracies and distortions to an extent that seems strongly to suggest bias, if not perversity. First, it says, based on section 2(1) of the Constitution, that the constituent States of the Nigerian Federation "are not to be regarded as states entitled to State Immunity because of the indivisible nature of Nigeria's" sovereignty - paragraph 44.
19. To speak of the indivisible nature of Nigeria's sovereignty is, to deny that Nigeria has a federal system of government. For,' in the authoritative words of Oppenheim, International Law, 9th edn, ' 1992 at page 249, the essence of federalism is that "sovereignty" is divided between the federal state on the one hand, and, on the other, the member states" (emphasis supplied). The denial of the country's federal system runs counter to section 2(2) of the , Constitution which provides that "Nigeria shall be a Federation . consisting of States and a Federal Capital Territoty" to be "known by the name of the Federal Republic of Nigeria." (section 2(1)). It also implies that the Constitution tells a lie about itself by calling itself "Constitution of the Federal Republic of Nigeria".
20. It is a misconception of the nature of sovereignty to regard it as something essentially different from sovereign powers of government. In the face of the division of sovereign, powers of government between the Federation. and States in various provisions of the Constitution, notably provisions in sections 4, 5, 8, 9, 11, 12 and 305, it is a blatant contradiction in ideas for the court to have maintained that sovereignty of Nigeria is indivisible.
21. The court's reliance on section 2(1) of the Constitution for that conclusion betrays a lack of understanding on its part of the nature of a constitution as a mode of organising a state and ,its government, as a charter of government, different from a code of criminal, property or contract law, and which' must therefore contain declarations of non-justiciable political aspirations, such as are contained in section 2(1), and of non-justiciable political objectives or directive principles of government, like those in chapter 2.
22. The non-justiciable character of such provisions in a constitution is explained as follows in my book, Judicialism in Commonwealth Africa (1977) at page 23. "Perhaps the most conspicuous example of this is the provision that the 'United States shall guarantee to every state in the Union a Republican Form of Government, and shall protect each of them against invasion; and on the application of the legislature, or of the Executive (when the legislature cannot be convened) against domestic violence': article iv, sect. 4. This provision clearly imposes a duty on the federal government, but it is a duty of a peculiarly political nature. Involving as it must the employment of military force, the duty of protection of the states from invasion or domestic violence is surely of a nature that cannot be judicially enforced. Since it also envisages the possible use of militaty force, an inference that is supported by its appearance in the same"" clause as the duty of protection, the guarantee of a' republican " " form of government is not intended to be justiciable. These powers are essential to the presentation of the integrity of the Union and its republican character. Their inclussion in the Constitution legalises and legitimates their exercise by the federal government. Yet, giving them legal character in order to legitimate their exercise should not also attract the sanction of judicial enforcement. That would be to carry much farther than is warranted the notion of a constitution as law; it would deprive a constitution of its basic nature as a charter of government and reduce it to the same level as an ordinaty statute. "
23. As was said by Justice Frankfurter of the U.S. Supreme Court: "The explicit provision requiring one state to surrender to another a fugitive from justice (article iv, sect 2) is merely declaratory of a moral duty, and is not, because of the subject-matter, enforceable in the Courts. Likewise, the 'guarantee to every state' of 'a Republican form of Government' must, because of the subject-matter, look elsewhere than to the courts for observance." See Frankfurter, " John Marshall and the Judicial Function", Harv. L. Rev 69, pages 317, 227, citing Pacific Telephone and Telegraph Company v Oregon 223 U.S. 118 (1912); see also Frankfurter J. in Colepove v. Green 328 U.S. 549.
24. No less subversive of the federal system established by the . Nigerian Constitution is the following statement in paragraph 42 of the Judgment.
"Although Bayelsa State has the power to make laws many of which are shared by the federal government, in the event of conflict with Federal laws, section 4(5) of the Nigerian Constitution provides that any state shall be void to the extent of its being inconsistent with Federal laws,= and this shows the subservient position of Bayelsa." Certainly, Nigeria will not qualify to be called a federation truly so called if this is in fact what section 4(5) provides. The above passage quoted from paragraph 42 of the Judgment is a complete and, it may be, a disingenuous mis-statement of the provision of section 4(5). It says: "If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void." (emphasis supplied)
25. It cannot be that the court in London did not notice the word "validly" in section 4(5). It chose deliberately to overlook that word in order to justify the pre-determined decision that Bayelsa State is "subservient" to the federal state, and is not to be regarded as a state entitled to State Immunity". In accordance with the principle of federalism that characterises the system of government established by the Nigerian Constitution, the National Assembly cannot validly make law on residual matters or any of them; such .. matters being exclusive to the States any law made" on any of them by the National Assembly is unconstitutional, null and void: see the two most recent decisions on the point by the Supreme Court of Nigeria - Att-Gen of Abia State v. Att-Gen of the Federation 6 NWLR (Pt 763) 264; Att-Gen of Lagos State v. Att-Gen of the Federation  6 S.C. (Pt 1) 24. There are numerous other decisions by the Nigerian courts in which a federal law trenching on the exclusive domain of the States has been declared unconstitutional and invalid.
26. Normally, the National Assembly can only validly make law on matters in the Exclusive and Concurrent Legislative Lists. In like manner, save as otherwise provided in this Constitution", any state law on a matter in the Exclusive Legislative List is unconstitutional and invalid: section 4(3). Both the Federation and
the States can make laws on matters on the Concurrent Legislative List to the extent specified in that List, but the federal law prevails in the event of conflict between it and a state law. It is only in this context that the doctrine of a state law being void for inconsistency with a valid federal law applies. The States will lack autonomy altogether if the doctrine also applies with respect to matters exclusive to them, as the Judgment purported to lay down.
27. Amazingly too, the pre-determined decision that Bayelsa State is "not to be regarded as a state entitled to State Immunity" is sought to be rationalised and justified by reference to section' 5(3) of the Nigerian Constitution which provides that the executive power of a State "shall be so exercised as not to (a) impede or prejudice the exercise of the executive power of the Federation; (b) endanger any assets or investment of the Government of the Federation in that State; or (c) endanger the continuance of federal government in Nigeria". This provision enshrines a principle that characterises all federal systems, including those of the United States, Canada and , Australia, a principle without which no federal system can really hope to escape threats to its continued existence.
28. As the U.S. Supreme Court held in sustaining the use of force , by the federal government to check or remove the obstruction of its authority by a state government:
"The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions... If the emergency arises, the army of the nation and all its militia, are at the service of the nation to compel obedience to its laws." [Re Debs 158 U.S. 564 (1894)].
29. If a state government is not merely impeding or interfering with the exercise in the state of the president's executive power, but is attempting to terminate it completely by armed insurrection or rebellion, then the President is bound to accept the challenge and try to suppress it, and, though a war cannot formally be declared against a region within a federal state, to engage the regional government concerned in open war if organised armed resistance is offered; in prosecuting such war he may blockade the region and
capture as "enemy property" the property of any person, whether neutral or rebel, residing within the rebellious region. [The Prize cases 2 Black (67 U.S.) 635 (1863)]. Insurrection or organised rebellion by a state government or group of state governments is unconstitutional because it is a unilateral attempt to oust the authority of the national govemment from part or parts of the country.
30. Surely, the status of a constituent State or Province of a federation as a state entitled to state immunity cannot justifiably be determined by the criterion of whether or not it has control over arms, ammunitions and explosives; banking; citizenship, naturalisationand aliens; defence; immigration into and emigration from Nigeria; maritime matters, mines and minerals including oil fields and natural gas. etc,on the ground that these are matters which "would normally be associated with a sovereign state"paragraph 41 of the Judgment. If this criterion is correct, the conclusion would also follow that the Federation will not be a state had control over these matters been given to the States instead.
31. Moreover, there are many other matters which "would normally be associated with a sovereign state", but which under the Nigerian Constitution are reposed as residual matters in the exclusive domain of the States. The ordinary man in Nigeria or anywhere else would hardly consider a state a sovereign state which lacks competence over the things that touch his daily life marriage and family life, social affairs, contracts, civil wrongs, regulation of criminal conduct, administration of justice, town and country planning, social services and amenities like water, roads, education, sanitation and health. These matters and others are placed in the exclusive domain of the States under the Nigerian Constitution. In modem times, the Welfare State has assumed much greater importance than the coercive, militarlsed state of an age long past, which was characterised by control over arms, ammunitions and explosives, war, prisons and the,like.
32. There are other matters also vital to modern life in a state which are reposed in the concurrent competence of the Federation and the States. These include electric power; industrial, commercial or agricultural development; scientific. and technological research; statistics; university, technological and post-primary education; collection of taxes -see the Concurrent Legislative List in the Second Schedule to the Constitution.
33. No doubt, the maintenance of law and order and the instrumentality necessary for the purpose - a police force - are of great importance to statehood. For, as D' Entreaves said, "states exist or not according as they have the force to impose their commands": The Notion of the State (1967), p.8. But maintenance of law and orderand policing are a concurrent matter under the Nigerian Constitution. If the London court's criterion of " what constitutes a state for purposes of state immunity is correct, it would follow from the arrangement of a single police force for both the Federation and the States and the system for its control instituted by the Nigerian Constitution that neither the Federation nor the States are sovereign states.
34. The decision by-the London court that Bayelsa State is "not to be regarded as a state" for purposes of state immunity because of the power of the - President to declare a state of emergency over it is . . a mis-statement and a distortion of the emergency provisions of the Nigerian Constitution. It ignores - disingenuously, it seems - the severe limitations imposed on the power by the Constitution. It suffices for present purposes to say that the President -cannot declare a state of emergency in one state alone or a few States only except at the request of the Govemor(s) of the State(s) concerned sanctioned by a resolution of the House(s) of Assembly supported by two-thirds majority of the members: section 305(4).
35. Lastly, while the matters within the exclusive domain of the States may not be as numerous and important as those exclusive to the Federation, it is difticult to understand how anyone with an
unbiased mind, least of all a judge supposed to be an impartial dispenser of justice, can justifiably describe them as "extensively circumscribed" (paragraph 43 of the Judgment) and as "very limited" (paragraph 47), such that they. "cannot lay claim to be a sovereign state" - paragraph 43.
36. The Judgment leaves the reader with the distinct impression , that the court was fishing all over the place for support for a decision already reached before arguments against it were heard, and was prepared for this purpose to invoke obiter dictaby some justices of the Nigerian Supreme Court which are totally irrelevant to the ussues before it for determination.
Professor Ben Nwabueze (SAN)