Marcus Tulius Cicero (Writer, Politician and Great Roman Orator) once said; “Not to know what has been transacted in former times is to be always a child. If no use is made of the labours of past ages, the world must remain always in the infancy of knowledge”.
The recent phenomenal resurgence of the Biafra agenda by Nnamdi Kanu and his IPOB for the Igbos or howbeit the old Eastern Region is a storm that has to the delight of the President Buhari led Government petered out, in the short term perchance, unless the underlying issues of marginalization are comprehensively addressed.
With an eventful 2017 winding up, the triumvirate of Biafra, Nnamdi Kanu and IPOB would no doubt clinch the headliner issue for the year 2017 in Nigeria. As we inescapably coexist with the pharaonic issue of Biafra in Nigeria, whether as proponents, antagonists or spectators depending on which geopolitical region one is from, let us nevertheless for legally informative purposes take a short walk through a rather paper-based museum, and peek into some adjudicatory adventures in the then High Court of Biafra, then and beyond. And I say paper-based museum because, history or a record of past events, to me is a paper-based museum.
Many Nigerians have been privileged to pore over the memoirs, autobiographies, biographies and accounts on the Nigeria Civil War. The impressive spectra of writings on the Nigeria Civil War have seemingly covered a number of spheres such as the military, socio-cultural, economic, political and ethnicity related accounts among others. A judicial or legal system related account remains a yet to be told chapter of the Nigeria Civil War collection of writings (though I stand to be corrected), however snippets of a semblance of what the atmosphere was like then and the immediate beyond are found in some reported Supreme Court decisions.
The moment Late Odumegwu Ojukwu declared the Republic of Biafra on the 30th May, 1967, the extant Judicial System in the Eastern Region expectedly took on a new status under the newly declared Republic of Biafra. Consequently, Late Sir Louis Mbanefo who was then the Chief Justice of Eastern Region became appointed the Chief Justice of Biafra. The High Court of the then Eastern Region thus transitioned into the High Court of Biafra.
In peeking into some of the adjudicatory adventures in the High Court of the defunct Republic of Biafra, we are considering a few reported Supreme Court decisions that interrogated and considered legal issues in cases that were either commenced, continued or partly heard before the then High Court of Biafra. These Supreme Court decisions at least give us a picture of what transacted in the High Court of Biafra then and what immediately followed thereafter on appeals to the Supreme Court after the end of the Civil War. The relevant period under retrospection is the 30th May, 1967 when Late Ojukwu declared the Republic of Biafra to the 15th January, 1970 when the War ended.
OKWUOSA V. OKWUOSA (1974) 1 All NLR (Pt.1) 479; (1974) LPELR-SC 154/1973.
On the 15th of June, 1967, the Petitioner (Wife) filed a Petition at the High Court of the Republic of Biafra against her estranged husband. Based on this Petition, the High Court of Biafra on the 18th of September, 1967 granted an alimony of £20 per month pending the hearing of the suit. The Court also made the payment retrospective and effective from 16th June, 1967. The Respondent however, defaulted after making two payments to the Petitioner and the Judge on the 8th of December, 1969 adjourned the case for a consideration of the complaint about the default to the 29th and 30th of January, 1970.
On or about the 15th of January, 1970, the War came to an end. On the 15th of March, 1971, the Petitioner applied for amendment of the processes and some of the amendments included substituting “Nigeria” for “Biafra” in several paragraphs of the Petition as well as in the title of the Petition. On the 22nd of March, 1971, Egbuna, J. of the Onitsha High Court granted the application for amendment and ordered that the Amended Petition be served on the Respondent. The case was duly heard and on the 7th of July, 1971, Egbuna, J. granted the prayer for the dissolution of the marriage, inter alia.
Dissatisfied, the Respondent appealed to the Supreme Court on several grounds with the main ground being that; “The proceedings are a nullity because the petition was not presented to the High Court of any territory in Nigeria but to the High Court of ‘Biafra’ on 15/6/67 and the High Court of East Central State has no power to take cognizance of such petition much less to amend and hear it particularly as the said petition was verified before a person who was not a commissioner for oaths and the Registrar’s Certificate was issued by a person who was not a Registrar in the context of the laws of Nigeria”.
In the end, the Supreme Court upheld the appeal holding that the proceedings of the Onitsha High Court in the East Central State of Nigeria in which Judgment was delivered on the 7th of July, 1971 were a nullity and the Judgment of Egbuna, J. set aside, as it was incompetent for the Onitsha High Court to take over the pending proceedings of the High Court of Biafra.
UTTAH V. INDEPENDENCE BREWERY LTD. (1974) 1 All NLR (Pt.1) 397.
The suit at the High Court was commenced on the 4th of July, 1966 via a Writ of Summons. Pleadings were ordered to be filed and this was done sometime in November, 1966, though it would seem that there was an outstanding application for an amendment of the particulars of the Counter-claim and extension of time within which to file the Statement of Defence, when the Republic of Biafra was declared. The proceedings nevertheless continued in the High Court of Biafra before Aniagolu, J. (as he then was) from 28th December, 1967 till 18th November, 1968 when the learned Judge ordered that one Mr. S. C. Ogbuehi (a Chartered Accountant) be appointed a referee to take accounts between the parties and submit his report to the Court. Mr. Ogbuehi in due course carried out the assignment and submitted a report entitled “Report on Investigation of Trading Account Between Independence Brewery Limited and Mr. M. N. Uttah”.
After the Civil War, Aniagolu, J. (as he then was) on the 17th of April, 1972 took over the same case this time as a Judge of the High Court, Umuahia Judicial Division, East Central State of Nigeria. And after conducting further proceedings, the learned Judge relied on the report and entered Judgment in favour of the Plaintiff (now Respondent).
Aggrieved, the Appellant appealed and the gravamen of his appeal was that the Judgment was a nullity since it was based on the report of a referee appointed by Aniagolu, J. (as he then was) in his capacity as a Judge of a non-existent High Court of Biafra. The Supreme Court after a consideration of the appeal came to the following conclusion;
“It seems clear to us that the action was properly commenced within time and according to the Rules of the High Court, 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 the proceedings were interrupted”.
IKE V. NZEKWE (1975) 2 S.C. 1; (1975) LPELR-SC 253/74.
In this case, the Writ of Summons and the Statement of Claim had been filed on the 21st July, 1969 in the High Court of the Republic of Biafra. The Civil War came to an end in the middle of January, 1970. Proceedings in the suit resumed on the 15th March, 1971 after the War, when the High Court, Onitsha Judicial Division granted a motion for extension of time within which the Plaintiffs could file an Amended Statement of Claim, followed by a Statement of Defence. The proceedings came to an end with Egbuna, J. of the High Court, Onitsha entering Judgment in favour of the Defendants.
Aggrieved, the Plaintiffs on appeal to the Supreme Court raised the following ground of appeal inter alia; that the proceedings in the High Court of Onitsha and the Judgment delivered thereof are a nullity in that the High Court took over and completed the proceedings in a case which was in a court not known to the Constitution of Nigeria, to wit; the High Court of Biafra.
The Supreme Court in its Judgment held that the proceedings in the High Court, Onitsha and the Judgment of Egbuna, J. are a nullity in that the Onitsha High Court purportedly took over and completed the proceedings in a case commenced in a court not known to the Constitution of Nigeria, to wit; High Court of Biafra.
OGUEBIE V. ODUNWOKE (1979) 3-4 SC 39; (1973) LPELR-SC 467/1975.
On the 5th of May, 1967, the Plaintiffs filed a suit for declaration, damages for trespass and injunction at the High Court, Owerri Judicial Division, Eastern Region, Nigeria. On the 13th of December, 1967, the Statement of Claim in this suit was filed, this time in the High Court of the Republic of Biafra.
By the 6th of January, 1971 when this case came before Ikpeazu, J., the Civil War had ended and the learned Judge was sitting at the High Court, Owerri of the East-Central State, Nigeria. The learned trial Judge proceeded with the case using the Statement of Claim filed in the High Court of Republic of Biafra. The decision of Ikpeazu, J. to proceed on to trial on the basis of the said Statement of Claim constituted the fons et origo of this appeal. The Supreme Court in its Judgment, after a careful consideration of the issue came to this conclusion;
“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”.
The case was thus remitted back to the High Court, Owerri Division for a proper hearing.
The locus classicus in which the above principle that proceedings before the High Court of Biafra amounted to a nullity was laid down, appears to be the Supreme Court decision in OGBUAGU AND IFEGBU & ORS. V. OTA UKAEFI (SC/225/71) reported in (1971) 1 E. C. S. L. R. 184. Of the four Supreme Court cases considered hereinabove, Judgments in both OKWUOSA V. OKWUOSA (Supra) and UTTAH V. INDEPENDENCE BREWERY LTD. (Supra) were delivered on the 21st February, 1974. Okwuosa’s case referred to and placed reliance on Ogbuagu’s case. The two other cases considered hereinabove; IKE V. NZEKWE (Supra) and OGUEBIE V. ODUNWOKE (Supra) which were decided after Okwuosa’s and Uttah’s cases (i.e. subsequent to February, 1974) in turn referred to and placed reliance on Okwuosa’s and Uttah’s cases.
It is imperative to make a distinction between when the Republic of Biafra was declared and when the War actually broke out. While the War actually started from around the 6th of July, 1967 and ended on the 15th January, 1970, the Republic of Biafra was declared by Late Ojukwu on the 30th of May, 1967. So, in effect, legally speaking, the High Court of the Republic of Biafra came into being from the 30th of May, 1967 the moment the Declaration was made and not necessarily from the 6th of July, 1967 when the War itself outbroke. Thus, for the purposes of computing the period when proceedings in the High Court of Biafra constituted a nullity as decided in the foregoing Supreme Court cases, the reckoning starts from the 30th of May, 1967 to the 15th of January, 1970.
An issue borne out, observedly, from the foregoing Supreme Court cases considered, is that appeals from the High Courts lied directly to the Supreme Court then and this merits some clarification. The Constitution of the Federal Republic of Nigeria, 1963 did not make any provision for the establishment of a Court of Appeal at the Federal level. Instead, the 1963 Constitution recognized the rights of the different regions to establish their appeal courts which were to serve as intermediate courts. However, no region was able to establish the regional courts of appeal before the incursion of the military on the 15th of January, 1966 with the attendant suspension of the 1963 Constitution (although the Western Region later established its regional court of appeal in 1967). With the establishment of the present Court of Appeal only in 1976, appeals from the High Courts in the states created from the old Eastern Region (in respect of which this piece pertains to) lied directly to the Supreme Court prior to 1976. This unriddles any confusion derivable from why the Supreme Court cases considered hereinabove were direct appeals from the High Courts.
Going by the title of this piece, its trajectory is not cyclopedic, I would thus, not here venture into an appraisal of the principle nullifying the proceedings before the High Court of Biafra, however, may I point out here that the conceivable policy, statutory, legal and jurisprudential bases that underpinned the postulation of the principle have been eminently critiqued and anatomized by Prof. Ben Nwabueze in his treatise; A Constitutional History of Nigeria, 1982.
Ultimately, the above Supreme Court cases not only afford us a priceless sneak peek into what the legal/judicial atmosphere was like then, interestingly, these cases also show us the crucial transformative swings the legal/judicial system in the Eastern Region went through then, as animated by the declaration of the Republic of Biafra and its subsequent collapse.
In summing up, though it has been over four long decades and a half since the War ended, I pray this piece serves as a legal/jurisprudential provocateur that will hopefully instigate at least a memoir on or a disquisition into the legal/judicial atmosphere that ensued and prevailed the moment the Republic of Biafra was declared on the 30th of May, 1967 up till the 15th of January, 1970 when the War eventually ended.
Merry Christmas and a Prosperous New Year ahead.
Alaware Preye Isaac, Esq. a Private Legal Practitioner, is an Associate Counsel in the Law Firm of Timi Ambaiowei & Associates, in Yenagoa, Bayelsa State, Nigeria. He can be reached via; firstname.lastname@example.org