By E. Monjok Agom
The Crucible of Constitutional Crisis
In the tempestuous arena of Nigerian constitutional law, few issues stir as much fervour as the interplay between emergency powers and the sanctity of contractual obligations. The recent demand by the Administrator of Rivers State for the Nigerian Bar Association (NBA) to refund ₦300 million- following the relocation of its Annual Conference from Port Harcourt to Enugu- has ignited a jurisprudential conflagration. At its core lies a Gordian knot: does an unelected Administrator, appointed during a state of emergency, inherit the mantle of “successor in office” under sections 316 and 317 of the 1999 Constitution (CFRN), thereby wielding authority to enforce fiscal claims? This article dissects the legal labyrinth, fortified by precedent, statutory exegesis, and the sagacious voices of jurists.
I. Constitutional Architecture: Emergency Powers and Successorship
A. The Emergency Framework Under Section 305 CFRN
The President’s invocation of emergency powers under section 305(3)(c) CFRN permits federal intervention to “restore peace and public order.” However, as the Supreme Court emphasised in AG Lagos State v. AG Federation (2003), such powers are “temporary, exceptional, and circumscribed by the imperative of necessity.” The Administrator’s role, akin to a constitutional caretaker, is thus confined to stabilising governance, not supplanting it.
B. Successorship: A Constitutional Mirage?
Sections 316–317 CFRN delineate succession to the office of Governor, reserving it for elected officials- the Deputy Governor or Speaker. The Administrator, unelected and transient, inhabits a constitutional limbo. As Justice Niki Tobi cautioned in INEC v. Musa (2003), “The Constitution is no haven for usurpers; its doors open only to those anointed by the sovereign will of the people.”
Key Precedent: In AG Abia State v. AG Federation (2002), the court voided actions by an interim administrator, ruling that “emergency appointees lack the legitimacy to exercise gubernatorial powers reserved for elected successors.”
II. The Case for Legality: Custodianship and Contractual Sanctity
A. De Facto Successorship and Fiduciary Duty
Proponents argue that the Administrator, as the state’s custodian, assumes a fiduciary duty to safeguard assets. Drawing from section 317 CFRN- which defines the “office of Governor” to include its “powers and functions”- the Administrator may inherit contractual enforcement rights. Lord Denning’s axiom in MacFoy v. United Africa Co. Ltd (1961) resonates: ““If one party breaches a contract, the law shall not leave the other remedy-less.”
Statutory Anchor: – Section 148(1) CFRN obliges public officers to “protect and preserve public property.”
- Section 14(2)(b) CFRN mandates governance for the “welfare and security” of citizens, arguably encompassing fiscal probity.
B. Contractual Breach and Restitution
If the NBA’s hosting agreement with Rivers State stipulated non-refundable fees or penalties for relocation, the Administrator’s demand aligns with the Evidence Act 2011, which presumes the enforceability of written terms. In UBA v. Jargaba (2007), the Supreme Court held that “a party who unilaterally alters contractual terms without lawful excuse must bear the pecuniary consequences.”
Jurist Quote:
“Contracts are the lifeblood of commerce; their sanctity must be upheld even in times of tumult.”
- Justice Chukwudifu Oputa Shugaba v. Minister of Internal Affairs (1981).
III. The Countervailing Tide: Constitutional Constraints and Ultra Vires
A. The Phantom of Ultra Vires Action
Critics contend that the Administrator’s demand transgresses constitutional boundaries. Section 305 CFRN limits emergency powers to “security and public order,” excluding fiscal governance. In Adesanya v. President (1981), Justice Kayode Eso warned: “Emergency powers are a scalpel, not a sledgehammer; their misuse erodes democracy.”
Procedural Lapse:
- Section 120 CFRN vests budgetary oversight in state legislatures. With the Rivers House of Assembly potentially dissolved, the Administrator’s unilateral demand flouts due process.
B. The Absence of Contractual Lacunae
If the NBA agreement lacked explicit penalties for relocation, the Administrator’s claim falters. As Lord Mansfield opined in Pillans v. Van Mierop (1765), “Courts cannot invent terms where parties have remained silent.” Nigerian jurisprudence echoes this: in Okomu Oil Palm Co. v. Iserhienrhien (2001), the court rebuffed attempts to imply unstated obligations.
Jurist Quote:
“The rule of law demands that emergency powers yield to constitutional specificity.”
— Justice Udo Udoma, Lakanmi v. AG Western State (1971).
IV. International Perspectives: Echoes from Afar
Comparative law illuminates the path. In the UK, the Civil Contingencies Act 2004 confines emergency regulators to “necessary and proportionate” measures. Similarly, in Youngstown Sheet & Tube Co. v. Sawyer (1952), the US Supreme Court curbed President Truman’s seizure of steel mills, with Justice Jackson admonishing: “Emergency powers must not metastasise into permanent authority.”
V. Critical Synthesis: The Scales of Justice
The Administrator’s demand pivots on two fulcrums:
- Constitutional Legitimacy: Does emergency custodianship equate to successorship under Sections 316–317?
- Contractual Clarity: Did the NBA agreement explicitly penalise venue changes?
Courts are likely to heed Justice Oputa’s counsel in AG Anambra State v. AG Federation (2005): “The Constitution is our Ark of the Covenant; its words must be read plainly, not creatively.” Absent explicit constitutional or contractual warrant, the refund demand risks being stillborn.
VI. Epilogue: A Pathway to Resolution
Recommendations:
- Judicial Clarification: The Administrator should seek declaratory relief under Section 6 CFRN to validate their mandate.
- Negotiated Settlement: Mediation under the Arbitration and Conciliation Act could reconcile the NBA’s reputational concerns with Rivers State’s fiscal interests.
- Legislative Intervention: The National Assembly might amend Section 305 CFRN to clarify emergency administrators’ fiscal powers.
Final Quote:
“In law, as in life, balance is the essence of wisdom. Emergency powers must tread lightly, lest they trample the very order they seek to preserve.”
Lord Bingham, The Rule of Law (2010).
E. Monjok Agom
15th April, 2025
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
