Dokun Ajayi Labiyi V. Alhaji Mustapha Moberuagba Anretiola & Ors. (1992)
LawGlobal-Hub Lead Judgment Report
B. KARIBI WHYTE, J.S.C.
The point of law involved in this appeal is a very short one. It is not new. It is however, a point of law of immense constitutional importance.
The point of law we are called upon to decide is whether the High Court can exercise jurisdiction to rule upon the effect of the provision of an Edict which is inconsistent with a provision of the Constitution of the Federal Republic. Appellant before us has contended that a Court has no jurisdiction to declare on the status of an Edict. The Respondent holds the contrary view that the Court is vested with jurisdiction to declare on the validity vel non of an Edict whose provision is inconsistent with provision of the Constitution.
Although the background facts leading to these contentions are not crucial to the determination of the issues involved, and the construction of the provisions, it will be somewhat helpful to State them in the elucidation of the issues.
The litigation arose from the dispute as to the number of branches constituting the Anretiola Ruling House of Hero. Anretiola was the great grandfather of the Plaintiff. He was also the first Elero of Hero. Ilero is a village in the Kajola Local Government Area of Oyo State. On the death of Anretiola, Falodun his half brother succeeded him as the Elero of Hero. The Defendants are the descendants of Falodun. The Anretiola and Falodun families constitute the Ruling Houses of the Elero Chieftaincy.
Under the Declaration made in 1957 under Section 9 of the Chiefs Law, the Abere, Labiyi, Akintayo and Ige Houses were the only Ruling Houses named in respect of !be Elero of Hero Chieftaincy.
In 1976 the Oyo State Government set up a commission of inquiry to report on the Chieftaincy Declaration following petitions by Plaintiff’s family. The findings of the inquiry increased the Ruling Houses by the addition of Anretiola. This recommendation was approved by the Oyo State Government in 1981. Plaintiffs were still not satisfied since the measure, in their view, did not meet with the tradition and yearnings of the majority of the Hero community. They then brought an action against the Defendants seeking the Declarations stated therein to set aside the Declaration of 1957, and a Declaration that Hero customary law recognised only the Anretiola and Falodun Ruling Houses. They also sought an injunction to restrain the defendants from implementing the said purported declaration of 1981.
In the statement of defence of the 1st Defendant, the issue of the jurisdiction of the trial Court to entertain the claim was raised for the 3rd Defendant. It was also argued in addition that the statement of claim did not disclose any cause of action. In para. 7 of the affidavit in support of the Motion to dismiss the action, it was averred as follows –
“That the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 precludes this Honourable Court from entertaining any civil cause or matter pertaining to Chieftaincy Matters.”
On his part, 6th Defendant pleaded in paragraph 14 of his statement of defence the ouster of the jurisdiction of the courts in Chieftaincy matters by the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985.
In his ruling on this objection, the learned trial Judge held,
“The Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict supra bars the Courts from entertaining suit regarding Chieftaincy matters as well as Decree No.13 supra.”
Plaintiff appealed to the Court of Appeal. The Court reversed the decision of the High Court and held that the High Court has jurisdiction to declare the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict inconsistent with the provisions of the Constitution 1979 and therefore void. Defendants have appealed to this court against the decision of the Court of Appeal, seeking to restore the decision of the High Court the two grounds of appeal filed against the judgment read:
“(i) The learned Justices of the Court of Appeal erred in law when they, in their lead judgment, said;
(i) ‘As stated at the beginning of this judgment the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict – in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decrees No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’
(ii) It is my view and I so held, that as section 2(c) of Edict No. 2 of 1985 of Oyo State is inconsistent with sections 6(6) (b), 33(1) of the 1979 Constitution, it is void and of no effect.
and they thereby came to a wrong decision.
PARTICULARS OF ERROR
(a) Constitutionality of Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.2 of 1985 was not raised in either of the two grounds of appeal filed by the plaintiff/appellant.
(b) The issues for determination in an appeal must be related to the complaints raised in the grounds of appeal.
(c) What the learned Justices of the Court of Appeal observed to be the issue calling for determination in the appeal before them did not flow or arise from the grounds of appeal filed by the plaintiff/appellant.
(d) A Court of Appeal can only hear and decide an issue raised in the grounds of appeal and it is not entitled to make any pronouncement on an issue not placed before it in the grounds of appeal.
(e) The submissions which the plaintiff/appellant made in his brief were not covered by the grounds of appeal filed by him.
- The learned Justices of the Court of Appeal erred in law in holding that Decree No.28of 1979 is not in pari materia with Decree No. 13 of 1984 and in thereupon concluding that the cases of (1) CHIEF ADEBIYI ADEJUMO V. H.E. COL, MOBOLAJI O. JOHNSON. MILITARY GOVERNOR OF LAGOS STATE (1972) 3 S.C.45 and (2) ADENRELE ADEJUMO AND ANOR. V. H.E. COLONEL MOBOLAJI O. JOHNSON, MILITARY GOVERNOR OF LAGOS STATE (1974) 5 S.C. 101 are inapplicable to this case and they consequently carne to a wrong decision.
PARTICULARS OF ERROR
(a) Both Decree 28 of 1970 and Decree 13 of 1984 provide that one can only attack an Edict if it is inconsistent with a Decree.
(b) In interpreting Decree No. 13 of 1984. the Court of Appeal was bound to follow the Supreme Court’ s construction of Decree 28 of 1970 in the above-mentioned cases of Adejumo.
(c) Decree No. 13 of 1984 was promulgated to protect Edicts as the Court of Appeal held in KANADA V. THE GOVERNOR OF KADUNA STATE & ANOR. (1986) 4 NWLR (PART 35) 361 at 375.
(d) Edict No.3 of 1985 was not found to be inconsistent with any Decree.”
Learned Counsel to the parties filed and exchanged their briefs of argument. They both adopted the briefs of argument and relied on them in argument before us. Learned Counsel to the Appellant formulated the following two issues for determination.
“2.1 Whether the Court of Appeal was correct to have held that the complaint in Ground 1 of the Plaintiff’s Grounds of Appeal in the Court of Appeal was clear and could not have misled the defendants who were the respondents in the Court of Appeal.
2.2 Whether the Court of Appeal was correct to have said that the issues calling for determination before it was whether a Court could pronounce on the validity or otherwise of the provisions of an Edict, the Oyo State’s Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1984 and the Federal Military Government) Supremacy and Enforcement of Powers) Decree No.13 of 1984.”
Learned Counsel to the Respondent has also formulated two issues as follows:
“0 1. Whether or not provisions of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict Oyo State are consistent with the provisions of the unsuspended provisions of the Constitution of the Federal Republic of Nigeria and if not.
Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No.13 of 1984
0.2. Whether if the provision of an Edict are inconsistent with the provisions of an unsuspended part of the Constitution and the Court can so declare.”
Learned Counsel to the 6th Defendant/Respondent has formulated only one issue for determination which reads
“Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict, in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No.3 of 1985, of Oyo State, notwithstanding the provisions of Constitution (Suspension and Modification) Decree No.1 of 1984 and t he Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984,”
The first of the issues formulated by learned counsel to the Appellant is not supported by any of the grounds of appeal filed. It is therefore not an issue for determination before this Court. See Modupe v. State (1988) 4 NWLR. (Pt.87) 130. The only issues before this Court, has been well expressed in the formulation of the Plaintiff/Respondent. I intend to adopt that formulation in my judgment in this appeal.
Learned Counsel to the Appellant has argued in his brief of argument that the learned trial Judge never held that “the provisions of an Edict are subordinate to unsuspended part of the 1979 Federal Constitution of the Federal Republic of Nigeria 1979,” He then stated what he claimed the learned trial Judge said as follows-
“From the above what one can observe from the intendment of the legislature of both Decree and Edict mentioned is that the following are orders of importance of our fundamental laws or ground norms (sic) (grundnorm).
(a) The latest Decree if it is not in conflict with any existing Decrees.
(b) Any other Decrees
(c) Decree No.1
(d) Edicts
(e) Unsuspended part of the Constitution.”
Learned Counsel then submitted, following the above, that the Court of Appeal was wrong to have formulated the issue for determination before it as it did.
The Court of Appeal had formulated the issue as follows –
“Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matter (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No.1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.13 of 1984.”
It was submitted that the issue for determination so formulated was not covered by the grounds of appeal filed, and was therefore not relevant to the determination of the appeal. The decisions of this court in Okonkwo & anor. v. Okolo (1988) 2 NWLR. (Pt.79) 632 Oniah v. Onyia (1989) 1 NWLR (Pt.99) 5 14 and Okpala & Anor. v. Ibeme & ors. (1989) 2 NWLR (Pt.102) 208, were cited and relied upon for the submissions.
Learned counsel citing and relying on Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR. (Pt.39) I finally submitted that the Court of Appeal was obliged and could only decide the appeal before it. It was not entitled to correct any error in the grounds of appeal filed by the Appellant. The decision of the Court of Appeal it was submitted, which was not based on any ground of appeal properly before it was therefore wrong in law. The findings of the trial Court therefore stand unchallenged, and the Court of Appeal was not entitled to disturb them.
Appellant has adopted an entirely mistaken and erroneous view of this appeal. Learned Counsel is wrong in the submission that the issue for determination formulated by the Court of Appeal was not covered by the grounds of appeal filed
It is for this purpose necessary and relevant to reproduce the two grounds of appeal in the Court of Appeal from which the Court of Appeal formulated .the issue for determination. They are as follows –
“1. The learned trial Judge erred in law and misdirected himself in the interpretation of S. 1 and 1(2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.13 1984, when he held.
‘The intendment as positively stated in the decree is to oust the jurisdiction of the Court over any case challenging the validity of a decree or edict or probing into either of them.’
When the Court was not called upon to probe the competence or validity of the Edict but to determine whether S.2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 is inconsistent or otherwise with the provisions of unsuspended (sic) provisions of the 1979 Constitution of the Federal Republic of Nigeria.
- The learned trial Judge erred in law when he held the provisions of an Edict are subordinate to unsuspended part of the 1979 Federal Constitution of the Federal Republic of Nigeria 1979 when Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984 does not stale so nor could it be interpreted so.”
In his brief of argument in the coon below learned Counsel to the Appellant formulated the following three issues from his two grounds of appeal.
“1. Whether the provisions of Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict 1985 conflict with Sec.6(6) 236 of 1979 Constitution if they do whether they prevail over the provisions of the unsuspended provisions of the Constitution.
- Whether in the light of the provisions of Decree 1 of 1984 as to the powers of a Military Governor to promulgate Edicts, he can amend the unsuspended part of the Constitution of the State.
- Whether the High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No.13 of 1984.”
This Court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single issue running through them. It is patently undesirable to split the issue in a ground of appeal. In the instant case learned Counsel to the Appellant has formulated three issues from the two grounds of appeal. ln their essence the grounds of appeal filed relate to the conflict between the provisions of section 2 of the Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 and the exercise of the jurisdiction of the Courts in the application of unsuspended portions of the Constitution of the Federation 1979 in the light of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.
The Court below was free either to adopt the issues so formulaled by learned Counselor to formulate such issues that are consistent with the grounds of appeal filed by the Appellant II is in the observance of this principle in pursuit of the proper administration of justice that the Court below considered an appropriate formulation of the issue consistent with the grounds of appeal filed when it was observed that although the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading. The Court went on to point out correctly, that “the main-issue calling for determination in this appeal is as to whether a Court can pronounce on the validity or otherwise of the provisions of an Edict, in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 of Oyo Stale – notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No.1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
I agree entirely with the formulation of the single issue as arising from the grounds of appeal filed, and as an issue appropriate for the determination of the appeaL before the Court. Learned Counsel was therefore in error in his submission that the issue for determination was not based on any ground of appeal properly before the Court. The Court below did not correct any error in the grounds of appeal filed. It was perfectly entitled to do so.
This appeal could be decided on this ground alone since learned Counsel to the Appellant did not in his brief put forward any arguments in contention of the issue formulated by the Court of Appeal. Appellant is deemed to have conceded. On this ground alone, the appeal fails and is dismissed. It is however, important to consider the very important constitutional issues involved in the formulation.
The issue of the relationship between the Federal Military Government and the component state units in the exercise of legislative powers, and the exercise by Courts of jurisdiction to declare upon the validity vel non of the exercise of such powers has been with us from the early years of our Military democracy.
In the early decision of the Lakanmi v. A-G Western State (1974) 4 ECSLR, 713 the Supreme Court attempted to assert its constitutional authority in declaring invalid the provisions of a decree which was inconsistent with the provisions of the Constitution. The correct position has always been, and this was reasserted in Federal Military Government (Supremacy and Enforcement of Powers) Decree No.28 of 1970, that the Decrees of the Federal Military Government are superior to the surviving sections of our Constitution, 1963. The Constitution 1963 is superior to the Edicts of Military Governors. Although the Courts are vested with jurisdiction to determine the issue where a provision of a decree or Edict is inconsistent with the surviving section of the Constitution 1963, it had no jurisdiction to pronounce on the validity of the making of the Decree or Edict. These propositions have been clearly enunciated in the judgment of this Court in Adamolekun v. The Council of the University of lbadan (1968) NMLR. 253 where Ademola, C.J.N. construing the provisions of S.6 of Decree No.1 of 1966 in relation to the exercise by the Court of its jurisdiction to pronounce on the validity of an Edict, said,
“Reading the Decree as a whole we are in no doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the Court from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words the Court is not enquiring into whether the Military Governor of a Region could legislate by Edict, but only whether section 35 of the Edict is inconsistent with the Constitution of the Federation.”
This view was followed in Onyiuke v. E.S.I.A.L.A. (1974) 1 All NLR (Pt.11) 151, Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC. 1 Agip (Nigeria) Ltd. v. A-G of Lagos State (1977) 11-12 SC.33. The last mentioned case was decided under Decree No. 32 of 1975 which is in pari materia with Decree. No. 1 of 1966 in respect of the legislative powers of the Federal Military Government, and State Governors.
In construing the provisions of section 4 of Decree No. 32 of 1975, this Court referred to section 1(2) of Decree No.1 of 1966 in pari materia and held that Decree No.32 of 1975 continued and affirmed the unsuspended portions of the Constitution of the Federation 1963.
A new Constitution carne into force on the 1st October, 1979, Sections 1, 6(6) and 236 of which provide as follows –
“1-(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
6(6)(b) Thre judicial powers vested in accordance with the foregoing provisions of this section –
shall extend to all mailers between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
On the 1st January, 1984, Decree No.1 of 1984 was promulgated suspending certain provisions of the Constitution of 1979. The suspended sections of the Constitution did not include the above. Sections 2(1)(2), (3) (4) 5 of Decree No.1 of 1984 provide as follows,
“2(1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
(2) The Military Governor of a state –
(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and,
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter in the Concurrent Legislative List relating to Federal Legislative Powers set out in the second column of part 11 of the second schedule to the Constitution.
(3) subject to subsection (2) above and to the Constitution of the Federal Republic of Nigeria 1979, the Military Governor of a state shall have power to make laws for the peace, order and good government of that State.
(4) -If any law
(a) enacted before 31st December, 1983 by the House of Assembly of a State, or having effect as if so enacted; or
(b) made after that date by the Military Governor of a State, is inconsistent with any law –
(i) validly made by the National Assembly before that date, or having effect as if so made, or
(ii) made by the Federal Military Government on or after that date,
The law made as mentioned in sub-paragraph (i) (ii) above shall prevail, and the state law shall to the extent of the inconsistency, be void.”
It is clear on reading of section 2(1)-(4) of Decree No. 1 of 1984; particularly subsection (3) that the legislative powers of the Military Governor of a state is subject to the prior consent of the Federal Military Government with respect to any matter in the concurrent legislative list relating to Federal Legislative powers set out in the second column of Part 11 of the second schedule of the Constitution, and to the Constitution of the Federal Republic of Nigeria, 1979.
I have already set out in this judgment the provisions of section I, 6(6)(b) and 236 of the Constitution 1979. It is clear from the words of section 2(3) of Decree No.1 of 1984 that any law validly made by a Military Governor of a State is subject to the provisions of the Constitution 1979.
This was the position on the 31st December, 1983, when the Constitution (Suspension and Modification) Decree 1984 came into force.
It is important to refer to the unambiguous words of section 1(1) of Decree No.1 of 1984 which suspended the provisions of the 1979 Constitution mentioned in schedule 1 to the Decree. Section 1(2) then goes further to provide as follows-
“Subject to this and any other Decree, the provisions of the said Constitution which are not suspended by sub-section (1) above shall have effect subject to the modifications specified in schedule 2 to this Decree.”
Thus on the 31st December, 1983, the status of the laws in the order of superiority would seem to be as follows –
- Constitution (Suspension and Modification) Decree 1984
- Decrees of the Federal Military Government
- Unsuspended provisions of the Constitution 1979.
- Laws made by the National Assembly before 31/12/83 or having effect as if so made
- Edicts of the Governor of a State
- Laws enacted before 31st December, 1983 by the House of Assembly of a state, or having effect as if so enacted.
I have already reproduced s.2(4)(b) which provides that where any law made by the National Assembly before 31st December, 1983, or made by a Military Governor of a State thereafter, is inconsistent with a law made by the National Assembly before that date, or by the Federal Military Government on or after that date, the laws of the National Assembly or the Decrees of the Federal Military Government shall prevail, and the state law to the extent of the inconsistency be void.
What has been under consideration in the Court below, and which the Court pronounced upon is whether section 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 ousted the jurisdiction of the Courts from enquiring into chieftaincy matters. On the other hand whether the Edict is void on grounds of inconsistency with the provisions of sections 6(6)(b), 236 of the Constitution 1979.
By section 1(1) of Decree No.1 of 1984, section 6(2) of the 1979 Constitution which vests the judicial powers of a state in the Courts established by S.6(5) was not suspended. Similarly not suspended is s.6(6)(b) which extended the exercise of judicial powers to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to their civil rights and obligations. In addition to these constitutional powers section 236, has subject to the provisions of the Constitution vested in the High Court unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest or obligation is in issue.
The Constitution has vested these aforementioned jurisdictions in the Court. It has been submitted that notwithstanding these clear provisions of the Constitution 1979, and of Decree No.1 of 1984 saving them, section 2(c) of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 of Oyo State has deprived the Courts of the jurisdiction vested in them by the Constitutions –
I hereunder reproduce the relevant sections of the Edict which are as follows
- Notwithstanding anything in any written law whereby or whereunder jurisdiction is conferred upon any court, whether such jurisdiction is original, appellate or by way of transfer, no court shall have jurisdiction to entertain any civil cause or matter.
(a) instituted for the determination of any question relating to the selection, appointment, installation or deposition, suspension or abdication of a chief; or
(b) instituted for the recovery or delivery up of any property in connection with the selection, appointment, installation, deposition, suspension, or abdication of a chief;
Provided that any recognised chief whose appointment has been approved by the Executive Councilor any minor chief whose appointment has been approved in accordance with part 3 of the Chiefs Law shall not be precluded from taking action in a court of competent jurisdiction for the recovery or delivery of such property and related damages;
(c) calling in question anything done in the execution of any of the provisions of the Chiefs Law or in respect of any neglect or default in the execution of any such provision by the Military Governor of Oyo State of Nigeria in Council the Executive Council, the State Commissioner, a local government or its Secretary. a Committee. a ruling house or a Kingmaker, or,
(d) calling in question anything done by the Military Governor of Oyo State of Nigeria with respect to a Chief or a Chieftaincy (whether before or after the application of the Chiefs Law).”
The purport of the Edict as can be gathered from the clear opening words of section 2, is to exclude the jurisdiction of the courts in respect of matters vested in them by the Constitution.
It is not arguable that there is a conflict between the provisions of the Constitution 1979, which vest in the courts unlimited jurisdiction to hear and determine any civil proceedings in which the civil rights and obligations of the parties are in issue – See section 6(6)(b) and 236 Constitution 1979, and the Edict of the Governor of Oyo State, which is purporting to divest the Courts of the exercise of their constitutional jurisdiction.
Section 2(3) of Decree No.1 of 1984, has made the laws made by the Military Governor of a State, subject to the unsuspended provisions of the Constitution 1979.
The phrase “subject to” in the section is significant. The expression is often used in statutes to introduce a condition, a proviso, a restriction and indeed a limitation – See Oke v. Oke (1974) 1 All NLR (Pt.1). The effect is that the expression evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter – See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR. (Pt. 91) 622. In other words, where the expression is used at the commencement of a statute, as in section 1(2) of the Decree No.1 of 19R4, it implies that what the sub-section is “subject to” shall govern, control and prevail over what follows in that section or sub-section of the enactment. – See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 529. In the instant case, the Edict No.3 of 1985 of the Military Governor of Oyo State which is subject to the unsuspended sections 6, 236 of the Constitution 1979, and subordinated to those sections of the Constitution, shall be governed and controlled by the constitutional provisions.
There appears to me a clear inconsistency between the two laws. This is because whilst sections 6 and 236 of the Constitution has vested jurisdiction in the Court, section 2(c) of the Edict is purporting to divest that jurisdiction. The inconsistency lies in the incompatibility of the two laws. Inconsistency is not merely from the existence of the laws. The inconsistency lies in the fact that the two laws cannot co-exist. The laws being inconsistent are void to the extent of such inconsistency.
By enacting Edict No.3 of 1985, the Military Governor of Oyo State would appear to have acted ultra vires his legislative powers. This is because a Military Governor of a State is precluded from making laws with respect to any matter in the concurrent Legislative list relating to Federal Legislative powers without prior consent of the Federal Military Government – See S.2(2)(b) Decree No.1 of 1984.
It is important to point out that the combined effect of sections 1(1), 6(6)(b) and 236 of the Constitution 1979 is to restore to the Courts the exercise of jurisdiction in Chieftaincy Matters hitherto ousted under section 158 of the Constitution 1963. Since the coming into force on October 1, 1979 of the Constitution 1979, disputes relating to Chieftaincy have remained justiciable. The import of the unambiguous provisions of section 2 of Decree No.1 of 1984 is to make the unsuspended provisions of the Constitution 1979 superior to laws made by the National Assembly and Edicts made by Military Governors. The same sections make any provisions of an Edict of the Military Governor inconsistent with an unsuspended section of the Constitution 1979 void.
I have already reproduced the relevant provision of the Edict in this judgment, which is similar to the provisions of s.11 (7) of the Chiefs Edict No.11 of 1984.10 Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280, this Court declared void the provisions of section 11 (7) ousting the jurisdiction of the High Court in chieftaincy matters. That decision applies to this case and is binding on this Court.
The provisions of section 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 promulgated by the Military Governor of Oyo State is inconsistent with sections 6(6)(b) and 236 of the Constitution 1979 and is accordingly void. Accordingly, the Court of Appeal was right in its decision that the Edict could not operate to oust the jurisdiction of the High Court. The learned trial Judge was wrong to hold that his jurisdiction was ousted.
The appeal of the Appellants is accordingly dismissed. The judgment of the court below hereby affirmed. Appellant shall pay N1,000 as costs to the Respondents.
S. KAWU, J.S.C.: I have read, in draft, the lead judgment of my learned brother. Karibi-Whyte, J.S.C. just delivered. I agree the appeal should be dismissed and it is hereby dismissed.
SC.18/1990
