Chief Adebiyi Adejumo v. H. E. Col. Mobolaji O. Johnson, Military Governor of Lagos Stat (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This ruling is concerned with a notice of preliminary objection to the hearing of the appeal in a matter in which an order of His Excellency Colonel Mobolaji Johnson, Military Governor of Lagos State (hereinafter referred to as the respondent) has been challenged.

The details of the proceedings in the substantive matter are apparently not directly relevant to the issue culminating in this ruling but it is necessary to appreciate some of those details for a clear understanding of the legal position.

It appears that some time in 1969 and pursuant to the provisions of section 4(1) of the Investigation of Assets (Public Officers and Other Persons) Decree 1968, No. 37 of 1968, the respondent had set up a Commission of Enquiry to enquire into the assets of some public officers then employed at the L. E. D. B. One Adenrele Adejumo was one of such officers and the present appellant, Chief Adebiyi Adejumo, is his father. In due course,the aforesaid Commission of Enquiry made a report which was subto the Governor of Lagos State and subsequently a Government White Paper was published in respect thereof.

The report of the Enquiry contained a number of recommendations but those relevant for the purpose of the present case are set out in the Order made and signed by the respondent to which we will shortly refer. By virtue of powers conferred upon the respondent and in particular by virtue of section 8(3) of the Decree No. 37 of 1968, the respondent made an Order. Section 8(3) of Decree No. 37 of 1968 reads as follows:

“8. (3) The appropriate authority may make an order for the forfeiture of any assets of any public officer or other person, no matter howsoever or whensoever acquired, of the assets whereby such public officer or other person has corruptly or improperly enriched himself or another person, or in such form that they could have been made the subject of an order of forfeiture under subsection (1) or (2) of this section.”

It is expedient to quote in full the Order which was challenged in the High Court so that the implications of this matter could be fully appreciated:

“L.S.L.N. No. 13 of 1969.

Page B 33

INVESTIGATION OF ASSETS (PUBLIC OFFICERS AND OTHER PERSONS) DECREE 1968 The Public Officers and Other Persons (Forfeiture of Assets) Order 1969.

Commencement: 23rd July, 1969

In exercise of the powers conferred by section 8 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 and of all other powers enabling him in that behalf, the Military Governor of Lagos State, acting with the consent of the Head of the Federal Military Government, hereby makes the following Order:

1. The respective assets of the Public Officers and Other Persons specified in the Schedule hereto are hereby forfeited and shall, without any further order or assurance, be vested in the Military Governor of Lagos State to be held by him on behalf of or in trust for the Government of the Lagos State of Nigeria.

(Forfeiture and vesting of assets Schedule).

2. The Registrar of Titles or any other persons in charge of registration of land, instruments or deeds shall as soon as may be, removed from the relevant register the names of the Public Officers or Other Persons in whose names the landed properties forfeited in pursuance of this Order are registered and substitute therefore the name of the Military Governor of Lagos State. (Registration of landed properties forfeited).
3. Nothing in this Order shall be construed as purporting to derogate from the provisions of any Act or Decree relating to the transfer or vesting of any class of assets, and such measures as may be necessary in accordance with those provisions shall be taken to ensure the vesting of such asset in the Military Governor of Lagos State for the benefit of or in trust for the Government of the Lagos State of Nigeria in accordance with the provisions of this Order. (Saving in respect of certain classes of assets).
4. This Order may be cited as the Public Officers and Other Persons (Forfeiture of Assets) Order, 1969. (Citation).

SCHEDULE

Paragraph 1

B343. ADENRELE ADEJUMO

(a) Land and building at 21 Mercy Eneli Street (Plot No. 234 Animashaun Estate) Surulere, registered as Title No. M04618 in the Land Registry in Lagos.

(b) Land and building at Plot No. 66 Bode Thomas Street (Jalupon Estate), Surulere.

(c) Land and building at 1A Ayilara Street, Surulere, registered as Title No. M03658 in the Land Registry in Lagos.

(d) The building at 45A Bourdillon Road, Ikoyi.

(e) The building at 121 Awolowo Road, South-West Ikoyi, Lagos, registered in the name of the Nigerian Constructional Designing and Planning Group Limited as Title No. L04275 in the Land Registry in Lagos.

MADE at Lagos this 23rd day of July, 1969.

(Sgd) COLONEL MOBOLAJI O. JOHNSON,

Military Governor of Lagos State.”

Pursuant to the aforesaid Order, the property of the appellant was seized and confiscated to the State and the present proceedings in the manner of an order of certiorari were instituted to challenge the competence of that Order and obtain a declaration of its invalidity. The prayer in the application of the appellant, as put in the High Court, Lagos, and before us is as follows:

“TAKE NOTICE that pursuant to the leave of the Honourable Mr. Justice G. S. Sowemimo given on the 20th day of October, 1969 the Lagos High Court will be moved on the 21st day of November, 1969 or so soon thereafter as counsel can be heard on behalf of the applicant for an order of certiorari to remove into this Honourable Court for the purpose of being quashed the Order dated the 23rd July, 1969 and published as L.S.L.N. 13 of 1969 in so far as the said Order applies or purports to apply to the building of 45A Bourdillon Road, Ikoyi upon the grounds set forth in the copy of statement served herewith and used on the application for leave to issue this notice of motion.

AND that the costs of this motion be paid by the respondent.

AND TAKE NOTICE that upon the hearing of the said motion the said applicant will use the affidavits of Adebiyi Adejumo and Adenrele

Adejumo and the exhibits therein respectively referred to.

AND FURTHER TAKE NOTICE that the Honourable Mr. Justice G. S. Sowemimo by the same order dated the 20th day of October, 1969 has directed that all proceedings in the Order sought to be quashed be stayed until after the hearing of this motion.”

The matter was heard by Sowemimo J. (as he then was) and on the 23rd January, 1970 he gave a decision in the matter in which he held that the court could not grant the relief sought by the appellant. He therefore discharged the order previously made by him.

The appellant has appealed to us against the decision of the High Court and so the respondent, or rather learned counsel on his behalf, has filed the following notice of preliminary objection:

“TAKE NOTICE that the respondent herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you viz:

‘That:

(a) this Honourable Court has no jurisdiction to hear and/or determine this appeal; and

(b) any decision of this Honourable Court granting the relief sought by the appellant shall be null and void and of no effect whatsoever in law.’

AND TAKE NOTICE that the grounds of the said objection are as follows:

I. That upon reading through the notice and grounds of appeal filed the remedy sought by the appellant would not avail him by virtue of the provisions of section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.

2. That this Honourable Court has no jurisdiction to hear and/or determine this appeal.”

Needless to say, this preliminary objection notice requests this Court to make an order dismissing the appeal in limine on the grounds that this Court had no jurisdiction to enquire into the matters therein contained or that even if this Court pronounced upon the invalidity of the Order or the incompetence of its maker, that pronouncement would be null and void or indeed on both grounds.

As would be readily seen, reliance was placed strongly on the objection on the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 (No. 28 of 1970). That Decree was made on the 9th May, 1970 and it is apparent that it was not yet in existence when the High Court, Lagos, delivered its judgment in the present matter. Decree No. 28 of 1970 is short and its provisions are as follows:

“WHEREAS the military revolution which took place on 15th January, 1966 and which was followed by another on 29th July, 1966, effectively abrogated the whole pre-existing legal order in Nigeria except what has been preserved under the Constitution (Suspension and Modification) Decree 1966 (1966 No. 1):

AND WHEREAS each military revolution involved an abrupt political change which was not within the contemplation of the Constitution of the Federation 1963 (hereafter referred to as ‘the Constitution of 1963’):

AND WHEREAS by the Constitution (Suspension and Modification) Decree (1966 No.1) there was established a new government known as the ‘Federal Military Government’ with absolute powers to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever and, in exercise of the said powers, the said Federal Military Government permitted certain provisions of the said Constitution of 1963 to remain in operation as supplementary to the said Decree:

AND WHEREAS by section 6 of the said Constitution (Suspension and Modification) Decree 1966, no question as to the validity of any Decree or any Edict (in so far as by section 3(4) thereof the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria:

AND WHEREAS by Schedule 2 of the said Constitution (Suspension and Modification) Decree 1966 the provisions of a Decree shall prevail over those of the unsuspended provisions of the said Constitution of 1963:

Now THEREFORE THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:

1. (1) The preamble hereto is hereby affirmed and declared as forming part of this Decree.

(2) It is hereby declared also that:

(a) for the efficiency and stability of the government of Federation; and

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation, any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are notinconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.

(3) In this Decree:

(a) ‘decision’ includes judgment, decree or order of any court of law; and

(b) the reference to any Decree or Edict includes a reference to any instrument made by or under such Decree or Edict.

2. This Decree may be cited as the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 and shall apply throughout the Federation…”

For the respondent, and in support of the argument against the question ability of the respondent’s Order of the 23rd July, 1969, the learned Attorney-General (Lagos State) submitted that the implications of Decree No.1 of 1966, i.e. Constitution (Suspension and Modification) Decree, are that the provisions of a Decree or an Edict (insofar as such provisions of the Edict are not inconsistent with a Decree) override those of the Constitution of the Federation of Nigeria, 1963; that section 6 of Decree No.1 of 1966 was aimed at ensuring the unquestionably in any court of law of the provisions of a Decree or an Edict as such, that in view of some doubts as to the ambit of section 6 of Decree No. 1 of 1966 a new Decree, i.e. the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (No. 28 of 1970) was passed, that the Order made by the respondent in this case, i.e. No. 13 of 1969, was not a judicial or quasi-judicial act but an administrative one and that therefore the provisions of Decree No. 28 of 1970 apply to the Order and either completely oust the jurisdiction of this Court (and others) in the matter or render invalid any judgment which has the effect of declaring the Order invalid or otherwise incompetently made. For the appellant the main plinth of the argument against ouster of jurisdiction was that the Order now impugned, i.e. No. 13 of 1969, was invalid per se as it was made in excess of jurisdiction or in circumstances in which the respondent was incompetent to make it and that therefore the clear words of Decree No. 28 of 1970 to the following effect:

“The reference to any Decree or Edict includes a reference to any Instrument made by or under such Decree or Edict”, would not apply to such an Order as No. 13 of 1969 which was not made by or under the relevant Edict and would not therefore give the Order the requisite coverage. Reliance was placed by learned counsel for the appellant on the dicta of judges in the celebrated case of Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A. C. 147 as for example the speech of Lord Reid at p. 169 to the following effect:

“The next argument was that, by reason of the provisions of section 4(3) of the 1950 Act, the courts are precluded from considering whether the respondent’s determination was a nullity, and therefore it must be treated as valid whether or not inquiry would disclose that it was a nullity. Section 4(4) is in these terms:

‘The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.’

The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity.I fit is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that ‘determination’ means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination you are maintaining that it does not exist as a determination.It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.”, and of Lord Pearse at p. 194 to the following effect:

“My Lords, the courts have a general jurisdiction over the administration of justice in this country. From time to time Parliament sets up special tribunals to deal with special matters and gives them jurisdiction to decide these matters without any appeal to the courts. When this happens the courts cannot hear appeals from such a tribunal or substitute their own views of any matters which have been specifically committed by Parliament to the tribunal. Such tribunals must, however, confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament. It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.”

and, indeed the speech of Lord Wilberforce at p. 207 of the report to the following effect:

“…The question, what is the tribunal’s proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionably upon its decisions. Those clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal.They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal and of its powers, they cannot preclude examination of that extent.”

The sum total of the majority judgment in that case, as submitted by learned counsel for the appellant, is that where an Order sought to be challenged had been made in excess of jurisdiction such an Order would not enjoy the protection of any preclusive legislation forbidding a judicial review of it.

It is of course not possible for us to accede to the arguments on behalf of the appellant. In Anisminic’s case, (supra), the House of Lords was concerned with the interpretation of a particular statutory provision peculiarly worded and probably equally peculiarly orientated. In the Anisminic’s case the statute then construed was section 4(4) of the Foreign Compensation Act, 1950 and the provisions are set out in Lord Reid’s judgment in the case (supra). Clearly this clause prescribes an ouster of the court’s jurisdiction with respect to “the determination by the Commission of any application” leaving it equally clear that unless the matter concerns such determination the jurisdiction of the courts of law, a necessary adjunct to civilised living, must stay. That was in short the business of the House of Lords in that case and that was what they had apparently set out to do.

In the present appeal we are exactly in the same position and it is our duty to construe the words of our own statute and to give those words their appropriate meaning and effect.

We are not in any doubt as to the meaning and effect of the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 (No. 28 of 1970). We think that briefly speaking that Decree consists of two parts or divisions the first part including the preamble ends at section 1(1). That section confirms the preamble and gives it legislative effect. The second part consists of section 1(2) to the end of the Decree and that part is designed to ensure that “any decision… by any court of law…which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict… shall be null and void…” Learned counsel for the appellant had referred us to the definition of “Decree” in section 1 (3)(b) of Decree No. 28 of 1970 and has argued that although the respondent’s Order No. 13 of 1969 may be an instrument within that definition yet it could not get the protection which the Decree generally guarantees unless it is an Order made “by or under such Decree or Edict”. The argument clearly overlooks quite a lot of other matters which must be considered alongside with it. The first and perhaps the most important of these is implicit in the Decree No. 28 of 1970 itself. The first part of the Decree, as we have already observed, establishes and otherwise confirms the already existing ouster of the jurisdiction of courts of law in respect of a Decree or an Edict or other cognate acts in law comprehended by the definition section, that is to say section 1(3). With respect to the second part of Decree No. 28 of 1970 even if it be arguable and indeed argued that that part assumes the possibility of a court assuming jurisdiction with respect to one or the other of the matters envisaged on the ground of manifest excess or incompetence or other type of invalidity (and we make no pronounceon this point), that part declares (and this is the word used and presumably deliberately so used) any such pronouncement in exercise of such assumed jurisdiction and having the tendencies therein described to be null and void.

Clearly the result of all this exercise is that we cannot hear this appeal. The judgment of the High Court, Lagos was given before the promulgation of Decree No. 28 of 1970 and if it had pronounced against the validity or competence of the respondent’s Order No. 13 of 1969 we entertain no doubt that it would by virtue of the second division of Decree No. 28 of 1970 be null and void. In fact the judgment did not so pronounce and indeed it held that the relief sought could not be granted by the court.

By virtue of the provisions of Decree No. 28 of 1970 one can only attack an Edict if it is inconsistent with a Decree and as by virtue of section 1(3) of Decree No. 28 of 1970 an instrument made by or under an Edict is given the same protection as the Edict under which the instrument is made, the same principle must apply to the instrument as would apply to the Edict itself.

Once the instrument as here is stated to have been made under an Edict, it seems to us that by virtue of the provisions of Decree No. 28 of 1970 one cannot attack it in any way other than one could attack the Edict itself. Thus, if we should assume jurisdiction in this matter our judgment insofar as it possessed the tendencies described in Decree No. 28 of 1970 would be null and void. This Court, and indeed any other court, should not and would not exercise jurisdiction in these circumstances.

We are firmly of the view, for reasons which we have already discussed, that this appeal is not competent and that the preliminary objection was well taken. The appeal is therefore struck out and we make no orders as to costs.

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Other Citation: (1972) LCN/1519(SC)