It is irrelevant what name was given to a contract provided the basic elements of ‘contract’ were discernible. Nigeria’s 1963 Republican Constitution fulfilled all the elements of a contract:
Offer: Executive (Government Heads)
Acceptance: Parliament
Mutual consideration: Republic status
Nigeria’s heads of government - Prime Minister and 3 Regional premiers - met in May 1963 to review constitutional issues. They set up an all-party constitutional conference, which met in Lagos in July 1963. The conference agreed that Nigeria should be a Republic. Nigeria’s Parliament accepted the recommendation and made it into law. There was a third-party record of this agreement in the Hansard of 17 December 1963 (the Nigeria (Republic) Bill). The terms (obligations) of the 1963 ‘Nigeria Republic Contract’ were explicitly and very clearly laid out:
1. There was to be 6-six-way lit of sovereignty: Federation, Eastern, Midwestern, Northern and Western Nigeria, and Federal Capital. Each sovereign was to be semi-autonomous wit and have its own coat of arms, constitution, diplomatic service, executive, legislature, judiciary, and police.
2. The style of government was to be parliamentary (cabinet) with the British Monarchy replaced by a ceremonial President elected by Parliament. The responsibility of the Head of State and Commander of the armed forces was vested in the non-partisan Presidency.
3. The legislature and executive, b were to have close relations Parliament was to be supreme, and the only body vested with the power to alter or amend the constitution. The executive was to be directly answerable to Parliament.
4. The procedure for creating new regions was made explicit.
5. The rights of the citizens were entrenched and fully guaranteed.
6. The Supreme Court was to be Nigeria’s final court of appeal, independent and empowered to check excesses and unconstitutional acts by the executive and legislature.
A contract was brought to an end, that is to say, frustrated, when a fundamental change in circumstances made the contract impossible to perform. The 1999 Constitution was a fundamental change in circumstances, which had the effect of frustrating the 1963 Constitution. When in 1963 the parties entered into the ‘Nigeria Republic Contract’, what they agreed to do was not what they were now expected to do under the 1999 Constitution. The Proper Law of Contract of Nigeria says that whatever the parties expressed in their contract was the law that they intended should apply. Clause 1 (ie Section 1) of the 1963 ‘Nigeria Republic Contract’ expressed the intention as follows: ‘This Constitution shall have the force of law throughout Nigeria’.
It has been suggested that the action of the 1999 Constitution was that of a force majeure. Under the law of Nigeria, a contract which relies on force majeure for frustration must include a force majeure clause, a provision that relieves the parties from performing their contractual obligations when circumstances beyond their control arise, making performance impossible. A force majeure was not always labelled as such in contracts; it was possible to deduce it, however. To this end, Clause 1 (ie Section 1) of the 1963 ‘Nigeria Republic Contract’ provides: ‘if any other law (including the constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void’.
The phrase ‘any other law’ implied a superior force that was:
1. capable of overriding the terms of the ‘Nigeria Republic Contract’,
2. made by someone else is beyond the control of the parties, and
3. reasonably unforeseen.
These are the characteristics of a force majeure. Where a contract was frustrated by the force majeure, the parties by law returned to their pre-contract status.
Nigeria’s 1999 Constitution prevented the 1963 Constitution from proceeding as planned. It was not foreseeable in 1963 that this would happen, or that there would come a time in Nigeria’s history when it would not be possible to do, ie perform, that which was required by the 1963 ‘Nigeria Republic Contract’. Like Covid-19, the 1999 Constitution was a seismic change that was not foreseeable in 1963. In other words, like the COVID-19, the 1999 Constitution was a force majeure, which according to Nigeria’s law, entitled the Western Region (ie the Yorubaland) to withdraw from the ‘Nigeria Republic Contract’, and go it alone and reclaim its sovereignty.