Keepler Hausban (Nig.) Ltd. V. Hon. Justice T. A. Irinoye & Ors. (1989)
LawGlobal-Hub Lead Judgment Report
UMARU MAIDAMA, J.C.A.
On the 21st of October, 1985. Anisiobi J., sitting in the High Court of Justice, Yola, Gongola State, struck out the appellant’s application for an interlocutory injunction in which the applicant sought an order of the Court to restrain the respondents, their servants, or agents from enforcing their order dated 6th of March, 1985. The appellant has now appealed to this Court and filed 4 grounds of appeal in which the following issues were raised:- .
(1) Whether section 19A of the Commissions of Inquiry (Amendment No.2) Edict, 1985 enacted by the Gongola State Government and made operative with effect from the 31st day of December, 1983, is consistent with the provisions of Decrees Nos. 1 and 13 of 1984, and the unsuspended Provisions of the 1979 Constitution of Nigeria.
(2) Whether the power of the Gongola State Military Governor to make laws for the peace, order and good government of the state can operate “in vacuo” having regard to the Provisions of the aforementioned Decrees and the unsuspended portions of the 1979 Constitution of Nigeria.
(3) Whether the learned trial Judge had jurisdiction to entertain the motion for interlocutory injunction and, indeed, the substantive suit.
Before dealing with the arguments of the learned counsel on these issues, it is necessary to set out briefly the background facts which led to this appeal. The facts as disclosed by the affidavit evidence showed that on the 21st of October, 1981, the appellant, a Building Construction Company, was awarded a contract by the Gongola State Government, for the Construction of a new Government Secondary School at Banjiram, at a cost of six million, six hundred and sixty-three thousand naira (N6,663,000) out of which the sum, of six hundred and sixty-three thousand naira, which represented 100% of the contract sum, was paid to the appellant as mobilisation. For one reason or another, the appellant failed to perform the contract. Subsequently, when the Military took over the government in 1993, the Military Governor of Gongola State set up a Judicial Commission of Inquiry to enquire into the award and execution of contracts. The respondents were appointed as its members. In setting up the Commission, the Governor amended the Commissions of Inquiry Law (Cap.25) Laws of Northern Nigeria in order to give more powers to the respondents, by inserting section 19A which provides:
“The commissioners shall, if so directed as required, make any order in relation to any property or other matter dealt with in its report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of a fee) and so delivered, the order shall have effect as a judgment of that High Court and may be enforced accordingly, but shall not be reviewed in any Court whatsoever and no appeal shall lie therefrom and any action instituted on or before commencement of this Edict in respect of any such order shall abate, be discharged or made void. ”
It was in exercise of the powers contained in this section that the respondents, at the end of their investigation, made the following order:-
“We now order the Keepler Hansban Nig. Ltd. to refund the mobilisation fee of six hundred and sixty-three thousand, three hundred Naira (N663,300) less the 2% valuation certificate of N130,329.90k. Therefore, the commission hereby orders the Keepler Hansban Nig. Ltd. to refund the sum of Five hundred and thirty-two thousand, Nine hundred and seventy naira ten kobo (N532,970.10) to Gongola State Government for failing to perform the said contract. This order shall be complied within 14 days from today, 1st March, 1985 – 15th March, 1985.”
The appellant challenged this order by filing an ex parte motion which the learned trial Judge refused to grant. The appellant again filed this application, asking for an interlocutory injunction pending the determination of the substantive suit. The application was opposed by the respondents who filed a counter-affidavit stating the reasons for their objection. After hearing both parties, the learned trial Judge upheld the objection and struck out the application. This is the reason why the applicant has come to this Court.
In arguing the issues raised by the grounds of appeal, learned counsel for the appellant treated all the issues together. The first point made in his submission is whether section 19A of the Amendment No. 2 Edict 1985 which was promulgated by the Gongola State Government was consistent with the provisions of Decrees Nos. 1 and 13 of 1984 and the unsuspended provisions of 1979 Constitution.
He first conceded that the Military Governor, by virtue of Section 2(2)(3) of Decree No.1 of 1984 had powers to make laws for the peace, order and good government of his State. He also conceded that the Military Governor has power by virtue of Section 2 of the Commissions of Inquiry Law (Cap.25) Laws of Northern Nigeria, 1963 (applicable to Gongola State) to set up a Commission of Inquiry. He again conceded that by virtue of Decree No.1 of 1984, and Section 1(2)(b) of Decree No. 13 of 1984, the validity of the Commission of Inquiry (Amendment No.2) Edict of 1985, cannot he challenged. What he is challenging is the consistency of section 19A of Edict No.2 of 1985, with the provisions of Decrees Nos.1 and 13 of 1984, and the unsuspended provisions of the 1979 Constitution of Nigeria. For ease of reference Section 19A of the Amendment No.2 Edict is reproduced hereunder:
“19A. The Commissioners shall, if so directed as required, make any order in relation to any property or other matter dealt with in its report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of a fee) and so delivered the order shall have effect as a judgment of that High Court and may be enforced accordingly but shall not be reviewed in any Court whatsoever and no appeal shall lie therefrom and any action instituted on or before the commencement of this Edict in respect of any such order shall abate, be discharged or made void.”
(Italics is mine).
The question is, what is the reason behind this amendment? In the explanatory note to the Edict, it says that the purpose is to amend further the Commissions of Inquiry Law (Cap.25) so as to increase the scope of powers of the High Court order, but such orders made by the Commission will not be subject to a review in any Court and no appeal in respect of such orders will be entertained by any Court. Thus, it is quite obvious that the whole purpose is to oust the jurisdiction of a High Court. Has the Military Governor of a State powers to oust the jurisdiction of a High Court? To answer this question, it is relevant to refer to Decree No.1 of 1984. Sections 1 and 2 of the said Decree read:
“1. (1) The provisions of the Constitution of the Federal Republic of Nigeria mentioned in Schedule 1 to this Decree is hereby suspended.
(2) Subject to this, or any other Decree, the provisions of the said Constitution which are not suspended by subsection (1) above shall have effect subject to the modifications specified in Schedule 2 to this Decree.”
The effect of these provisions is quite clear; it means that the organic law of Nigeria as from 31st of December, 1983, shall be (1) Decree No.1 of 1984, or any other Decree, and (2) unsuspended sections of the Constitution of 1979. Thus, any provision made in accordance with the above provisions is intended by the Decree, and anything that is inconsistent with it is unconstitutional and therefore is void to the extent of the inconsistency.
The powers of a Military Governor of a State to make laws have been provided by Sections 2, 3 and 4 of Decree No. 1 of 1984. Section 2(2) states:-
2(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 II of the Second Schedule to the Constitution.
(3) Subject to sub-section (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 (1) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency, be void.”
Having regard to the above provisions, a Military Governor of a State has no power to legislate on any matter included in the Exclusive Legislative List. Again, he cannot legislate on any matter which is included in the concurrent legislative list relating to Federal Military Government. Also he cannot make any law which is inconsistent with any law made by the Federal Military Government before or after 31st of December, 1983.
As pointed out earlier, the purpose of Section 19A of the Amendment No. 2 Edict. 1985, enacted by the Military Government of Gongola State was to oust the jurisdiction of the High Court, from reviewing or hearing an appeal against the recommendations or orders made by a Commission of Inquiry set up by the Government. The powers of a High Court of a State are provided under section 6(6) paragraphs (a) and (b); and Section 236(1) of the 1979 Constitution. As far as we are all aware, these provisions have not been suspended by Decree No.1 of 1984. The provisions therefore form part of the organic law by which Nigeria is governed today.
Section 6(6) paragraphs (a) and (b) of the 1979 Constitution provides as follows:-
“6(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend 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 the civil rights and obligations of that person.”
And Section 236(1) of the 1979 Constitution also provides as follows:
“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.”
From the foregoing, it is quite obvious that a Military Governor of a State cannot by an Edict, legislate and oust the jurisdiction of a High Court conferred on it by unsuspended provisions of the 1979 Constitution. I am fortified in this view, by the decision of the Supreme Court in the case of Military Governor of Ondo State and Anor. v. Adegoke Adewunmi (1988) 3 N.W.L.R. (Part 82) p.280, where Honourable Justice Nnaemeka-Agu, J.S.C., who delivered the lead judgment which was concurred by all the Justices said:-
“I agree that ordinarily a constitutional amendment is a very serious affair. And when it is intended to divest a court from jurisdiction which has been given to it by the Constitution, it is a more serious affair still. It must be by express and unambiguous words and by a competent amendment of the Constitution. Under our present circumstance it shall be by a Decree which amends the relevant Section of Section 236(1) of the Constitution. For as a general principle, even where there is a statute purporting to oust the jurisdiction of a court, the language of any such statute will be jealously watched by the courts.”
In his own contribution, Kayode Eso, J.S.C. said thus:-
“In a Federation like ours where, in the Constitution the powers of each organ, that is, of the Executive, Legislature and Judiciary have been so expressly stated, recourse could only be made to preserve the Federation by an observance of the provisions of the Constitution. There is no doubt that the Legislature cum the Executive (now merged into one under the militia) could enact laws which could deprive the Courts of jurisdiction. For indeed, by Decree, the Constitutional provisions themselves could be amended thereby depriving the Courts of the jurisdiction which have been given, even by the Constitution itself. This is not imaginary. It did happen after the case of E. O. Lakanmi & Anor. v. Attorney-General (West) & 2 Ors. (1974) E.C.S.L.R. 713 whereby Decree No. 28 of 1970 that is the Federal Military Government (Supremacy and Enforcement of Powers) Decree of May 9, 1970, when the Military Government set aside the judgment of the Supreme Court. That was the exercise of one jurisdiction (of making laws) in collision with another jurisdiction of adjudicating on the Laws thus made. But it was by a Decree which was validly made, however unpalatable to jurisprudence. In other words, there we had a clash of two giants the Executive cum Legislature on the one hand and the Judiciary on the other hand, and both created by the Constitution and acting within their respective jurisdictions. Without doubt, it was for the judiciary to adjudicate, as it did in that case but it was also for the legislature to legislate, and this it did, though both acted on scales in contrary motion.”
Kayode Eso, J.S.C., continued:-
“Edict No. 11 of 1984 which purports to delimit this jurisdiction conferred by the Constitution is void. The Edict is not a beanstock planted by Jack. It cannot outgrow itself. It remains puny vis-a-vis the Constitution or the portions thereof unsuspended and any Decree. As for Decree No.13 of 1984, like its predecessor Decree No.28 of 1970, nothing therein stops an attack on an Edict if it is inconsistent with a Decree see: Chief Adebiyi Adebiyi Adejumo v. H. E. Col. Mobolaji Johnson (1972) 3 S.C. 45.”
The next question is whether the Edict can be challenged. Reference was made by the learned Counsel to the provisions of Decree No. 1 of 1984 and Decree No.13 of 1984 and a number of decided cases. While Section 5 of Decree No.1 says that the question as to the validity of the Decree itself or any other Decree or of any other Edict shall not be entertained by any Court of Law in Nigeria, Decree No.13 in its recital provides:
“And whereas by Section 5 of the said Constitution (Suspension and Modification) Decree of 1984, no question as to the validity of any Decree or any Edict (in so far as by Section 2(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.”
Which goes to show that one is entitled to challenge the validity of an Edict if it is inconsistent with the provisions of a Decree. See the case of Onyiuke v. Eastern States Interim Assets and Liability Agency (1974) 10 S.C. 77, where Elias, C.J.N. (as he then was) said as follows:-
“We are in agreement with learned counsel that the Courts are competent to declare an Edict invalid on grounds of inconsistency with a Decree. And that we so expressly held in the case of University of Ibadan v. Ademolekun (1967) 1 All N.L.R. 213 at pp.223 – 224
It is, therefore clear that, legislative powers of a Military Governor of a State are limited as set out by the provisions of Decree No.1 of 1984. And if in making an Edict, a governor exceeds those powers, the Edict is void to the extent of the inconsistency. In the circumstances, I hold that the Edict (Amendment No.2) of 1985 promulgated by Military Governor of Gongola State is inconsistent with Decree No.1 of 1984 and is therefore void.
Having found that the Edict is void, then my answer to the next question whether the learned trial Judge has jurisdiction to entertain the Motion in interlocutory injunction and the substantive suit is in the affirmative.
In the circumstances, the appeal succeeds and it is hereby allowed. The ruling of the High Court dated 21st October. 1985 is hereby set aside. The case is remitted to the High Court for hearing before another Judge. The appellant is entitled to costs which I assessed at N200.
Other Citations: (1989) LCN/0084(CA)
