A.G. Ogun State V. A.G. Federation (1982)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, C.J.N

Section 69, subsections 1(a), 1(b), (4) and (5) of the Constitution of the Federation of Nigeria, 1963, provide as follows:-

“(1) Parliament shall have power to make laws-

(a) for the peace, order and good government of Nigeria (other than the Federal Territory) or any part thereof with respect to any matter included in the Legislative Lists; and

(b) for the peace, order and good government of the Federal Territory with respect to any matter, whether or not it is included in the Legislative Lists.

X X X X

(4) If any law enacted by the legislature of a Region is inconsistent with any law validly made by Parliament, the law made by Parliament shall prevail and the Regional law shall, to the extent of the inconsistency, be void.

(5) Subject to the provisions of subsection (4) of this section, nothing in this section shall preclude the legislature of a Region from making laws with respect to any matter that is not included in the Exclusive Legislative List.”

From the above provisions, it is clear that both Parliament and the legislature of a Region (which were then only three) could legislate in respect of any matter in the concurrent Legislative List in Part II of The Schedule to the said Constitution. Furthermore, it is self-evident by virtue of the provision of section 69 subsection (4) thereof, that if there was any inconsistency between a law made by Parliament and one made by a Regional Legislature, the Regional law would, to the extent of the inconsistency, be void.

It is, of course, settled law, based on the doctrine of covering the field with which I shall deal in more detail later, that if Parliament enacts a law in respect of any matter in which both Parliament and a Regional legislature are empowered to make laws, and a Regional legislature enacts an identical law on the same subject matter, the law made by Parliament shall prevail. That made by the Regional legislature shall become irrelevant and therefore, impliedly repealed.

Among the matters in respect of which both Parliament and a Regional legislature could make laws in the concurrent Legislative List are those listed in Items 18 and 29 of the said List. The items read –

“18. The maintaining and securing of public safety and public order; the providing, maintaining and securing of such supplies and services as may be designated by the President by order as essential supplies and services.

29. Any matter that is incidental or supplementary to any matter mentioned elsewhere in this list.”

Not long after the 1963 Constitution came into force, the Mid-West Region was created out of the former Western Region. In 1967, twelve States were created out of the four Regions. In 1975, the number of States in the Federation was increased to nineteen. Each of these nineteen States inherited the legislative powers of the former Regions in respect of the matter referred to above in Item 18 of the Concurrent Legislative List.By virtue of this power, each of the nineteen States either enacted or adapted its own Public Order Law as enumerated and classified below –

Law Chapter or State or States in

Number which the law is

operative

(1) Public Order Law Cap.107 Laws of Ogun, Ondo and

Western Nigeria,1959 Oyo States.

as amended byEdicts

Nos. 9 & 16 of 1969.

(2) Public Order Cap. 112 Laws of Bauchi, Benue,

Northern Nigeria 1963 Borno, Gongola,

as amended by Law No. Kaduna, Kwara,

1 of 1964. Niger, Plateau and Sokoto State

(3) Public Order Law Cap. 107, Anambra,

Laws of Eastern Cross River, Imo Nigeria,

1963. and Rivers States.

(4) Public Order Cap. 115, Lagos State.

Law, 1973

Laws of Lagos State,

1973.

(5)Public Order Cap. 138 Laws Bendel State.

Law, 1976 of Bendel State, 1976.

(6)Public Order Law No. 16, Kano State.

Law, 1978 Laws of Kano

State, 1978

Having already taken over the powers of Parliament to enact laws when it passed the Constitution (Suspension and Modification) Decree, 1966, (Decree No. 1 of 1966), the Federal Military Government, on 29th July, 1975, later passed the Constitution (Basic Provisions) Decree, 1975 (Decree No. 32 of 1975). Save as provided in certain sections thereof, this 1975 Decree provided that the 1966 Decree shall cease to have effect.

Section 1 subsections (1) to (4) of the 1975 Decree provide as follows:-

“(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 the 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 included in the concurrent Legislative List.

(3) Subject to subsection (2) above and to the Constitution of the Federation, 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 16th January, 1966 by the legislature of a Region or having effect as if so enacted, or

(b) made after that date by the Military Governor of a Region or State, is inconsistent with any law-

(i) validly made by Parliament 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 paragraph (i) or (ii) above shall prevail and the Regional or State law shall, to the extent of the inconsistency, be void.”

By virtue of this legislative power, the Federal Military Government enacted the Public Order Act, 1979 (Act No. 4 of 1979). The reasons for enacting the Act were set out in the recital which reads as follows:-

“Whereas there are in force in every State in Nigeria certain enactments providing for the conduct and control of public assemblies, meetings and processions:

And whereas the provisions of the said enactments are divergent and it is therefore expedient to make a single enactment having uniform application throughout the Federation for the purposes of the proper and peaceful conduct of public assemblies, meetings and processions and other matters connected therewith:”

All the State enactments which I have enumerated and classified earlier were repealed by Section 13 subsection (2) of the said Act. As a result, the only law which regulates public assemblies, meetings and processions throughout the country since 16th February, 1979 when the law came into force is the Public Order Act, 1979, which, having regard to the history of the legislation set out above, took effect as a Federal Law.

On 1st October, 1979, the Constitution of the Federal Republic of Nigeria, (hereinafter referred to as the 1979 Constitution) came into force. Section 11 subsections (1) and (2) of the said Constitution provides as follows:-

“11(1) The National Assembly may make laws for the Federation or any part thereof with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.

(2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matters referred to in this section, including the provision for maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.”

In addition to the above, the National Assembly, by virtue of the provisions of Section 4 subsection (2) of the 1979 Constitution, is also empowered to make laws for the peace, order and good government of the whole Federation or any part thereof with respect to any matter in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution. One of these matters is the “Police” listed as Item 44. Furthermore, it is provided in Section, 194 and 195 of the said Constitution as follows:-

“194(1) There shall be a police force for Nigeria, which shall be styled the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.

(2) Subject to the provisions of this Constitution

(a) the Nigeria Police Force shall be organised and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly;

(b) the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.

(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and airfields.

195(1) There shall be an Inspector-General of Police who, subject to Section 196 (2) of the Constitution, shall be appointed by the President, and a Commissioner of police for each State, who shall be appointed by the Police service Commission.

(2) The Nigeria Police Force shall be under the command of the Inspector-General of Police, and any contingents of the Nigeria Police Force stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the Commissioner of Police of that State.

(3) The President or such other Minister of the Government of the Federation as he may authorise in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with.

(4) Subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorise in that behalf, may give to the Commissioner of police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with:

Provided that before carrying out any such directions under the foregoing provisions of this subsection the commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions.

(5) The question whether any, and if so what, directions have been given under this section shall not be enquired into in any court. (The underlining is mine.)

Presumably for the sake of continuity, it is provided in Section 274 of the 1979 Constitution that, subject to its other provisions, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the said Constitution. It is also provided that such an existing law shall be deemed to be an act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by the said Constitution to make laws. Finally it is provided in subsection (2) of the same section that –

“(2) The appropriate authority may at any time by order make such changes in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.” (The underlining is mine.)

The phrase “appropriate authority” is defined in the section as meaning the President in relation to the provisions of any law of the Federation or any person appointed by any law to revise or rewrite the laws of the Federation. In the same section “existing law” is defined to include any enactment or instrument whatsoever which is in force immediately before the 1st October, 1979, the date the Constitution came into force, The word “modification” used in Section 274 (1) is also defined to include –

“addition, alteration, omission or repeal”.

Acting in exercise of the powers conferred upon him by the provisions of Section 274 (2) referred to above, the President of the Federal Republic of Nigeria (hereinafter referred to as the President) made the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 (S.I. No. 5 of 1981). The Order, which came into force on 10th February, 1981, modified the provisions of Section 1 of the Public Order Act, 1979, by –

(a) substituting “Commissioner of Police” for “Military Administrator”;

(b) substituting a new subsection (5) for the existing sub-section, and

(c) deleting the whole of sub-section (6).

Section 4 subsection (3) was also modified by the deletion of the words “after consultation with the Military Administrator” and the substitution therefore of the words –

“with the concurrence of the Governor of the State.”

In Section 6 subsection (20) the “Attorney-General of the Federation” was substituted for the “Attorney-General of the State”.

Finally, new sections which conferred specific powers on the Minister charged with the responsibility for police affairs were substituted for Sections 10 and 11. Section 12, the definition section, was also consequentially amended.

Being dissatisfied with these modifications made in the said Order, the Governments of Ogun State and Bendel State, by originating summons, and the Government of Borno State, by statement of Claim, challenged their validity.

In its own originating summons (SC.53/1981) the Government of Ogun State asked for an order of court declaring that the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order act) Order, 1981, is unconstitutional and therefore null and void and of no effect. It also asked for an injunction to restrain the defendant, (that is, the Government of the Federation) its servants, and agents from acting in pursuance of the said Order.

The Government of Bendel State, in suit SC.55/1981, claimed as follows:-

“(1) Declaration that the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order act) Order, 1981, is ultra vires, unconstitutional, illegal, void and of no effect being in excess of the powers in Section 274 of the Constitution and being contrary to and inconsistent with Sections 1, 4, 11, and 195 of the Constitution of the Federal Republic of Nigeria;

(2) Alternatively, a declaration that the said Order has no operative validity within Bendel State having been made in usurpation of the Constitutional powers and rights of the Bendel State House of Assembly, of the Governor of Bendel State of Nigeria and of the Attorney-General of Bendel State;

(3) Injunction to restrain the defendants from acting pursuant to the said Order known as the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order, 1981.”

In its own claim, the Government of Borno State asked for the following declarations –

(1) A declaration that the Order made by the President of the Federal Republic of Nigeria is a plain invasion of the legislative powers vested in the National Assembly of Borno State by the Constitution and is therefore a nullity;

(2) a declaration that Section 274 (2) of the Constitution does not by any stretch of the imagination or necessary implication give to the President power to make the Order and the said Order is therefore null and void;

(3) a declaration that the purported modification of the Public Order Act, 1979 exercised by the President in the Order is unlawful, repugnant and inconsistent with the Constitution and therefore void ;and

(4) a declaration that the President in purported exercise of the power under Section 274 (2) of the Constitution acted ultra vires and contrary to the Constitution and in particular to the provisions of Sections 5, 195, 140 (1) (a) and 140(2) thereof when he made the Order.

The Government of Borno State also claimed an injunction to restrain all the defendants from exercising the purported powers given to them in the said Order.

At the hearing on 2nd November, 1981, the three actions, with the consent of all parties, were consolidated and heard together as one claim. Learned counsel for each party, however, argued his own claim separately. Since the defendants in each case retained the same counsel, learned counsel for the defendants replied to all the claims together.

As could be expected in a claim of this nature, the points in issue revolve round the interpretation of the various sections of the Constitution to which I have earlier referred and of the Adaptation Order complained of.

In support of his claim, Chief Adaramaja, the Attorney-General of Ogun State, who appeared for the plaintiff in suit SC.53/1981, invited the court to construe not only the provisions of the Adaptation Order complained of, but also those of the Public Order Act (No. 5 of 1979), and of Sections 195, 274 and 276 of the 1979 Constitution. The learned Attorney-General then submitted:-

(i) that the Public Order Act, having been enacted for the benefit of the State took effect as a State law;

(ii) that in so far as the Adaptation Order complained of purports to take away the power of a state Governor under Section 195 (4) of the 1979 Constitution and vest it in the Inspector-General of Police, the President was not exercising the power of modification conferred on him by Section 274 of the Constitution; and

(ii) that by virtue of Section 276 (1) of the Constitution, every right hitherto exercised by the Military Administrator of a State now vests in the Governor of a State.

In the alternative, Chief Adaramaja submitted that if the court holds that the Public Order Act is a Federal law, the adaptations of Section 1 subsection (a) and (d), of Section 6 (2) are unconstitutional. While conceding that a State Governor cannot impose statutory duties (as distinct from the directions provided for in the Constitution) on the Nigeria Police except with the approval of the National Assembly, and that the National Assembly cannot impose any statutory duty on the Governor of a State, the learned Attorney-General finally submitted that the whole of Sections 1 (a) to (d) and 6 (2) of the Act as adapted in the Adaptation Order are void because they contravened the provisions of Sections 191 and 195 of the Constitution. He agreed that Section 4 (3) of the Act was rightly adapted.

For his part, Mr Sanyaolu, the Attorney-General of Borno State, for the plaintiff in suit SC.57/1981, submitted that the provisions of Section 276 should not be given a narrow meaning. He too then contended that the section vests the powers of Military Administrator in the Governor of a State. He, however, conceded that the Public Order act, 1979, is a Federal Law and that the President had the power under Section 274 (1) of the 1979 Constitution to adapt the Act to conform with the provisions of that Constitution. He submitted nevertheless, that since the power to give directions to the commissioner of Police was given to the Governor of a State by virtue of the provisions of Section 195 (4), the adaptation made by the President was invalid. While conceding that the President cannot impose any duty on him in his capacity as Attorney-General of Borno State, he still contended that all the provisions of the Adaptation Order are unconstitutional and therefore void.

In his own submission, the Attorney-General of Bendel State (Mr. Obasuyi) who appeared for the plaintiff in suit SC.55/1981, contended that the Adaptation Order made by the President amounted to a usurpation of the powers of the National Assembly and the State House of Assembly which alone have the power to legislate under the 1979 Constitution. He further submitted that the only valid modifications which could be made under Section 274 of the Constitution are those which will bring the existing law within the provisions of the 1979 Constitution. He contended that the Governor of a State is the successor to all the rights and obligations of Military Administrator. The learned Attorney-General then said that his quarrel was with Section 1 (4) (a), (b), (c) and (d) of the Act as adapted and conceded categorically that the adaptations of Sections 4 (3) and 6 (2) are in order. Although he finally conceded that the power given to a State Governor under Section 195 (4) of the Constitution to give directions to the commissioner of Police is a “hollow” one, he still asked the court to declare Section 1 subsections (a) to (d) of the Adaptation Order invalid on the ground that it constituted an erosion of the Governor’s power under Section 195 (4) of the Constitution.

In his reply, chief Rotimi Williams, who appeared for all the defendants, made a six-point submission in defence of the validity of the Adaptation Order which I will proceed to summarise as follows. The Public Order Act, 1979, was enacted by the Federal Military Government, pursuant to its powers to make laws for the maintenance of public order and public safety. Since the maintenance of public order and public safety is an item in the Concurrent Legislative List, and the enactment being applicable throughout the whole Federation, it prevailed over any State law. It, therefore, took effect as an existing federal law immediately before the 1979 Constitution came into force on 1st October, 1979. It was the duty of the President to adapt the Public Order Act, 1979, in such a manner that it will not interfere with the exercise by the State Governor and the State Attorney-General of their executive functions. This the president has done in the Adaptation Order. Because their respective functions are different, the “Military Administrator” is different from the “Governor of a State”; the same difference applies in respect of the body known as the “National council of States” of the Military regime and that known as the “Council of State” established under the 1979 Constitution. That was why the State Governor was not substituted for the “Military Administrator” in the Adaptation Order.

Giving his own interpretation of Section 195 of the Constitution, Chief Williams further submitted as follows – A State Governor is empowered by Section 195 (4) to give directions to the Commissioner of Police with respect to the maintenance and securing of public order and public safety; but the commissioner of police has a discretionary power, if he has any qualms about the instructions given to him to refer the matter to the President or to the Minister for Police Affairs as the case may be for further directions. Neither the President, nor the Minister or the Inspector-General of police, can give any directions to the Governor of a State. While this section places the Commissioner of Police under the authority of the Inspector-General, the President can also give instructions to the Inspector-General of police with respect to the maintenance and securing of public order and public safety. He then described, rightly in my view, the chain of command as starting from the President to the Inspector-General of police and then to the Commissioner of Police. There is also another chain of command in the States, that is the one from the Governor to the Commissioner of Police. With respect to this second chain of command, the Commissioner of Police has a right to appeal for further directions to the President or the Minister for Police Affairs.

Chief Williams then submitted that the adaptation in Section 4(3) of the Act which states that certain powers connected with public order and public safety can only be exercised with the concurrence of a State Governor is inconsistent with the provisions of Section 195 (4) of the 1979 Constitution.

Chief Williams then dealt with the provisions of the adaptation Order complained of. He submitted that the Public Order act which took effect as a law passed by the National Assembly cannot confer powers on a State Governor beyond the powers and functions conferred upon him by Section 195 (4) of the Constitution. He then referred to Sections 82(1) (b) and 83 (1) of the Constitution and submitted that if such powers can be conferred, then the National Assembly can summon the State Governor to appear before it in order to inquire into how the powers have been exercised. He said that a State Attorney-General can also be so summoned.

Finally, Chief Williams submitted that Section 276 of the Constitution relied on by the plaintiffs is irrelevant to the Order being challenged. According to him, the section deals only with property and with rights, privilege, liability and obligation under contract, and has nothing to do with Constitutional powers and functions.

From the Constitutional and legislative history of the various Public Order Laws which culminated in the enactment of the Public Order Act 1979, there can be no doubt that these Laws and the act which followed were enactments made by virtue of the powers to make any law relating to-

“The maintaining and securing of public safety and public order” in Item 18 in the Concurrent Legislative List in Part II of the Schedule to the 1963 Constitution. It must be mentioned, however, that even then, the final operational control of the police was left with the Prime Minister by virtue of the provisions of Section 106 of that 1963 Constitution. Incidentally, except that in the 1979 Constitution the President is now substituted for the Prime Minister, the wording of Section 106 almost identical with that of section 195 of the 1979 Constitution.

The provision for an exclusive Legislative List and a Concurrent Legislative List in our Constitution, starting with the 1954 Constitution, was taken from the Constitution of the Commonwealth of Australia, Section 109 of which declares invalid pro tanto any State legislation which conflicts with any commonwealth Act on any matter in respect of which both the common-wealth and the States are empowered to make laws. Thus, in Ex Parte McLean (1930) 43 CLR 472 at page 483, Dixon, J., when dealing with the exercise of concurrent legislative powers, observed rightly as follows:-

“When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least, when the sanctions they impose are diverse (Hume v. Palmer (1926) 38 CLR 441). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provides what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon state law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co- existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such intention, it is inconsistent with it for the law of a state to govern the same conduct or matter.”

The above observation was referred to by the Privy Council with approval in O’Sullivan v Noarlunga Meat Ltd. (1957) AC 1 at page 24.

Even in Canada, where no section corresponding to Section 109 of the Australian Constitution exists, but where, by reason of exclusive fields of legislation, conflicts may arise between the national and the provincial legislation, the Privy Council have enunciated a rule of interpretation which in practical effect corresponds with Section 109 of the Australian Constitution. (See Attorney-General of Ontario v Attorney-General of the Dominion of Canada (1894) AC 189; Tennant v. Union Bank of Canada (1894) AC 31 at page 47; Grand Trunk Railway of Canada v Attorney -General of Canada (1907) AC 65 at page 68). I would only wish to add that, where identical legislations on the same subject matter are validly passed by virtue of their Constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject matter. To say that that law is “inconsistent” in such a situation would not, in my view, sufficiently portray clarity or precision of language.

To go back to the Public Order Act of 1979, (No. 5 of 1979), it is self-evident that the act which repealed all the existing Public Order Laws passed or deemed to have been passed by each of the nineteen states, has expressed by its enactment, completely, exhaustively, and exclusively, what shall be the law governing the conduct and control of public assemblies, meetings, and processions throughout the Federation. In short, it has covered the whole field of the subject matter. It therefore took effect as “an existing law” because it is in force immediately before 1st October, 1979. (See Section 274 (4) (b) of the 1979 Constitution.)

Again, since the Act was enacted by the Federal Military Government, it took effect, not as a State law as contended by the learned Attorney-General of Ogun state, but as a Federal law and is therefore, deemed to be an act of the National Assembly. Being an Act of the National Assembly, the “appropriate authority” to make such modifications or changes in its provisions is the President of the Federal Republic of Nigeria. (Section 274 sub-section 4(c) of the 1979 Constitution refers).

The next and most important question which naturally follows is this. Do the modifications and changes in its provisions made by the President in the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 (S 1 No. 5 of 1981)bring that act into conformity with the provisions of the 1979 Constitution as required by Section 274 subsection (2) thereof

Before answering this question, I must point out that a “Military Administrator” who exercised both legislative and executive powers in each of the nineteen states during the Military Administration and on whom certain powers were conferred by the said Act is not the same authority as a State Governor who can only exercise executive powers under the 1979 Constitution. Moreover, the provisions of Section 276 (2) of the Constitution, to which we were also referred, deal with property , rights, liabilities and obligations whether under contract or tort which had become vested in the Military Administration before 1st October, 1979, and are clearly irrelevant to the “modification” provided for in Section 274 (1). Secondly, neither the President of the Federal Republic of Nigeria nor the National Assembly can unilaterally confer powers on a State functionary such as the Governor or the Attorney-General of a State and thus bring him within the investigatory or scrutinising powers conferred upon the National Assembly by Section 82 subsection (10) of the 1979 Constitution.

To go back to the provisions of the Constitution, it is common ground that Section 11 thereof confers on both the National Assembly and each of the nineteen State Houses of Assembly power to make laws “with respect to the maintenance and securing of public safety and public order.” It is also not in dispute that it is by virtue of this section that the National Assembly must be deemed to have passed the Public Order act, 1979. It also seems to me that the operational control of the Nigeria Police Force is necessary in order to make the provisions of the Public Order Act effective. The question which must, of course, be answered is this. Who has the ultimate power under the Constitution to control the police For ease of reference, I refer once again to the provisions of Section 195 of the Constitution which read –

“195(1) there shall be an Inspector-General of Police who, subject to Section 196 (2) of this Constitution, shall be appointed by the President, and a Commissioner of Police for each State, who shall be appointed by the Police Service Commission.

(2) The Nigeria Police Force shall be under the command of the Inspector-General of police, and any contingents of the Nigeria Police Force stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the Commissioner of Police of that State.

(3) The President or such other Minister of the Government of the Federation as he may authorise in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary and the Inspector-General of Police shall comply with those directions or cause them to be complied with.

(4) Subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorise in that behalf, may give to the Commissioner of Police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with: Provided that before carrying out any such directions under the foregoing provisions of this subsection the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions.

(5) The question whether any, and if so what, directions have been given under this section shall not be enquired into in any court.” (The underlining is mine.)

Because of the claims in the instant case, the provisions of subsection (4) thereof are particularly relevant. A close look at these provisions shows –

(a) that only lawful directions can be given by the Governor of a State;

(b) that the governor does not have a final say in that before carrying out directions of such Governor, the Commissioner of Police concerned may request that the matter be referred to the President or the duly authorised Minister for further directions;

(c) that these Constitutional provisions cannot be altered by a law passed by either the National Assembly or a State Assembly without committing an infraction of the Constitution.

In short, the ultimate power of the National Assembly to make laws for the control of public assemblies, meetings and processions and the roles which the President, a State Governor, a Federal Minister, and the Nigeria Police Force could and should play to make the control effective are clearly set out in the provisions of the Constitution to which I have referred.

The President, by virtue of the powers conferred upon him by section 274 of the 1979 Constitution, has purportedly brought the provisions of the Public Order Act, 1979, into conformity with the provisions of the said Constitution, by the 1981 Order (S.I. 1 of 1981) the validity of which is now being challenged. The question then is this. Has there been any infraction of the Constitution in the Adaptation Order

In Section 4 subsection (3) of the Public Order Act (No. 5 of 1979), it is provided that where a commissioner of Police is of the opinion, by reason of the particular circumstances existing in the State concerned or part thereof, the powers conferred upon him by the section will not be sufficient to prevent serious public disorder being occasioned by the holding of public assemblies, meetings, or processions in the State or any part thereof, the commissioner may “after consultation with the Military Administrator of the State” by order published in the State Gazette, and in such other manner as he may deem sufficient to bring the order to the knowledge of the general public in the state, prohibit the holding in the State, or any such part of it, of all public assemblies, meetings, or processions, specified in the order, for such period not exceeding fourteen days as may be so specified. The President, in the Adaptation Order of 1981, substituted the words, “with the concurrence of the Governor of the State” for the words “after consultation with the Military Administrator” used in the Act. This modification, in effect, gives to the State Governor the power to veto the decision of the Commissioner of Police as to whether the assembly, meeting or procession should be held or not. With respect, the Governor of a State has no such power under Section 195 subsection (4) of the Constitution. His power is set out in clear terms in that subsection, the provisions of which I have discussed in detail earlier.

To construe the provisions of Section 195 subsection 4 of the Constitution as giving the Governor of a State the power of concurrence as the President has done in the Adaptation Order is, in my view, to do violence to the express provisions of that section. Consequently, by giving the Governor the power, the President, perhaps inadvertently, has committed an infraction of the provision of the said section. To my mind, it would require very clear and precise words to convert the power granted to the Governor of a State to give directions (which, in any case, the President or the duly authorised Minister could overrule or modify by new directions) into the power of concurrence. It needs no effort to conclude that such clear and precise words are just not there. I accordingly hold that this particular modification is unconstitutional and is therefore null and void and of no effect.

Save as I have indicated above, I see no merit whatsoever in any of the claims brought by the Ogun, Bendel and Borno state Governments. Therefore, except for the order which I have made above, all the claims in each of the three consolidated cases are dismissed in their entirety.

There will be no order as to costs.

U. UDOMA, J.S.C.: In February, 1979, the Federal Military Government promulgated the Public Order Decree (now Act) No. 5 of 1979, which came into force on 16th February, 1979.

The enactment reconciled certain divergencies in the several enactments then in existence and in operation in the various constituent states of the Federation for the regulation of the peaceful conduct and control of public assemblies, meetings and processions and in replacement therefor enacted one single law having uniform application throughout the Federation for the purpose aforesaid. By that enactment all previously existing, relevant Public Order Laws in active operation in all the 19 constituent States of the Federation, were repealed and thenceforth ceased to be of, and to have any operational effect (see Schedule 2 to the Public Order Act No. 5 of 1979).

Since 16th February, 1979, therefore, there has been in force and active operation throughout the Federation one single Public Order Law namely:

The Public Order Act No. 5 of 1979.

On 1st October, 1979, the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter to be referred to as the Constitution) came into force.

The Constitution was declared by the people of Nigeria to have been made, enacted and given to themselves “for the purpose of promoting the good Government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.” (See the preamble to the Constitution.)

These declarations, it seems to me, should always be borne in mind when dealing with cases such as the present, involving primarily as they do, the interpretation and application of the provisions of the Constitution.

In relation to the matters in dispute raised in the suits shortly to be considered, the Constitution has made abundance of provisions some of the most important of which are as hereunder set forth:

In Section 1(1) and (3) there are the following provisions:

“1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(2)- ……..

(3)- If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Section 274(1), (a), (b), (2) and (4) provide as follows:

“274(1)- Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –

(a)- an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and

(b)- a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2) – The appropriate authority may at any time by order make such changes in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of the Constitution.

(3) – ………

(4) – In this section, the following expressions have the meanings assigned to them respectively –

(a) “appropriate authority” means –

(i) the President, in relation to the provisions of any law of the Federation,

(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State, or

(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State;

(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and

(c) “modification” includes addition, alteration, omission or repeal.”

And Section 276(1), (b); 2(a) and (b) and Section 195 (4) are in the following terms:

“276(1) Without prejudice to the generality of Section 274 of this Constitution, any property, right privilege, liability or obligation which immediately before the date when this section comes into force was vested in exercisable or enforceable by or against –

(a) ……..

(b) any former authority of a State as representative or trustee for the benefit of the State, shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.

(2) For the purposes of this section –

(a) the President and Government of the Federation, and the Governor and Government of a State shall be deemed, respectively, to be successors to the said former authority of the Federation and former authority of the State in question; and

(b) references in this section to “former authority of the Federation” and “former authority of a State” include references to the former Government of the Federation and the former Government of a State, a local government authority, or any person who exercises any authority on its behalf.”

“195(4) Subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorise in that behalf, may give to the commissioner of Police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with.

Provided that before carrying out any such directions under the foregoing provisions of this sub-section the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions.”

As the questions raised in the suits in hand concern the maintenance of law and order and the propriety and Constitutionality of the exercise of powers by the President of the Federal Republic of Nigeria, it will be necessary to examine with care the relevant provisions of the Constitution to some of which references have already been made, having regard to the Constitutional position of the “Police” in the whole scheme devised by the Constitution.

After the coming into force of the Constitution, the President of the Federal Republic of Nigeria (hereinafter to be referred to as the President) in the purported exercise of the powers conferred upon him under Section 274(2) of the Constitution, as the appropriate authority, considered it expedient to modify, and in fact issued an Order modifying certain provisions of the Public Order Act, 1979 (No. 5 of 1979) as an existing law, purporting thereby to bring the same into conformity with the provisions of the Constitution. The order was duly published in the supplement to the Federal Official Gazette Extraordinary No. 8 Vol. 68 of 12th February, 1981 as S.I.5 of 1981 – the Constitution of the Federal Republic Order Act) Order, 1981 – (hereinafter to be referred to as the Adaptation Order No.5 of 1981). The Order commenced on 10th February, 1981.

In consequence of the modification and publication of the Order aforesaid, there were commenced in this court in its original jurisdiction the following 3 suits:

(1) Suit No. 53/1981

BETWEEN:

THE GOVERNOR OF OGUN

STATE OF NIGERIA……….. PLAINTIFF

AND

1. THE PRESIDENT OF THE)

FEDERAL REPUBLIC OF)

NIGERIA)

2. THE INSPECTOR-GENERAL) ………. Defendants

OF POLICE)

3. THE COMMISSIONER OF)

POLICE, OGUN STATE)

(2) Suit No. 55/1981

BETWEEN

1. BENDEL STATE, NIGERIA)
2. THE GOVERNOR OF BENDEL )

STATE, NIGERIA) ………… Plaintiffs

3. ATTORNEY-GENERAL OF )

BENDEL STATE, NIGERIA )

AND

1. FEDERATION OF NIGERIA)
2. THE PRESIDENT OF THE)

FEDERAL REPUBLIC OF)

NIGERIA ………. Defendants

3. ATTORNEY-GENERAL OF THE)

FEDERATION OF NIGERIA)

4. THE COMMISSIONER OF)

POLICE, BENDEL STATE)

(3) Suit No. 57/1981

BETWEEN:

1. THE GOVERNOR OF BORNO)

STATE OF NIGERIA) ………. Plaintiffs

2. THE ATTORNEY-GENERAL OF)

BORNO STATE OF NIGERIA)

AND

1. THE PRESIDENT OF THE)

FEDERATION OF NIGERIA)

2. THE ATTORNEY-GENERAL OF)

THE FEDERATION OF NIGERIA ……….Defendants

3. THE INSPECTOR-GENERAL )

OF POLICE)

4. THE COMMISSIONER OF)

POLICE, BORNO STATE)

In all the three suits, the power and authority of the President to make the Adaptation Order No. 5 of 1981 has been challenged. The Order has been attacked as being, inter alia: unconstitutional, ultra vires the President; unlawful exercise of legislative power which does not reside in the President; and as repugnant to and inconsistent with the Constitution.

In those premises, the plaintiffs in each of the suits therefore seek from this court a declaration that the Adaptation Order No. 5 of 1981 is unconstitutional, being inconsistent with the provisions of the Constitution and therefore void. There is also a claim for an injunction to restrain the Inspector-General of Police and the Commissioner of Police from acting in terms of the authority conferred on them by the Adaptation Order No. 5 of 1981.

Suits No. 53/1981 and 55/1981 were commenced by originating summons; but suit No.57/1981 was instituted by the filing of a statement of claim. In answer to the said Statement of Claim the defendants also filed and delivered their statement of defence.

These proceedings, even though instituted as causes touching and concerning or arising out of a dispute between the States concerned and the Federation did not comply with the provisions of Section 20 of the Supreme Court Act, 1960. The worst offender in this regard was suit No. 55/1981 instituted at the instance and with the authority of the Governor of Bendel State of Nigeria.

It was not clear how an autonomous state as a geographical expression could bring an action in its name against the whole of the Federation – a sovereign nation – also in the latter’s name – in utter disregard to the provisions of the existing law. As the court was anxious to go to the heart of the matter and did not wish its judgment to be impinged by technicalities, it decided to sweep aside formalism; and there being no objection by learned counsel for the defendants, and leave having been granted, all amendments necessary to bring the suits into conformity with the provisions of Section 20 of the Supreme Court act, 1960 were accordingly made. Thereafter, all the three suits were consolidated and heard together.

Chief Adaramaja, learned Attorney-General for Ogun State, mr. Obasuji, learned Attorney-General for Bendel State and Mr. Sanyaolu, learned Attorney-General for Borno State respectively as counsel for the plaintiffs, in opening their respective cases, each of which was separately stated, pointed out in an eloquent and attractive manner, that prior to the making by the President, and the coming into force on 10th February, 1981 of the Adaptation Order No. 5 of 1981, there was in existence and in force throughout the Federation one Public Order Law, namely, the Public Order Act no. 5 of 1979, which dealt with and regulated the proper and peaceful conduct of public assemblies, meetings and processions; that under the act the only authority empowered to direct the conduct of all such assemblies, meetings, and processions was the Military Administrator of a State; and therefore that the Public Order Act No.5 of 1979, even though centrally enacted, a State law since it only operated in and was applied to States. That being so, it was contended that having regard to the provisions of Section 4(4)(b) and 4(7)(c) and 11(2) of the Constitution, the President had no power under the Constitution to have modified it, and that by modifying it the President had eroded and usurped the legislative functions of the State houses of Assembly and, by implication, of the Governors as the Chief Executives of the States.

Chief Adaramaja supported by Mr. Obasuji and Mr. Sanyaolu further contended that by virtue of the provisions of Section 276 (1) (b) and (2) (b) the successor by right of inheritance to the Military Administrator was the Governor of the State and that it was therefore unconstitutional for the President, in making the Order No. 5 of 1981 –

(1) to have taken away from the Governor of the State the power formerly exercisable by the Military Administrator and to have had the same vested in

(a) the Commissioner of Police as is contained in -Section 1 (a) (b) (c) and (d); and

(b) the Inspector-General of Police as is contained in Section 1 (e) of the Order;

(2) to have substituted Attorney-General of the Federation in the place of Attorney-General of the State concerned as is contained in section 6(2) of the Order; and

(3) to have replaced the Military Administrator and the National Council of States with the Minister of the Government of the Federation as is contained in sections 10 and 11 of the Order aforesaid.

In the alternative, it was submitted by Chief Adaramaja that if the court should take the view that the Public Order Act No. 5 of 1979 was a Federal Law, then he would contend that it was unconstitutional for the President to have modified it at all because whatever modification there was to be made should have been made by the National Assembly, and not by the President since the President is the Chief Executive of the Federation and has no legislative powers at all.

There was at this point a divergence of submissions, which must be separately stated: for while Mr. Obasuji maintained that it was unnecessary for the President to have made the Adaptation Order No. 5 of 1981 at all since the Governor is the sole authority for the maintenance of law and order in the state, Mr. Sanyaolu conceded that the President, having been empowered by Section 274 of the Constitution to modify any existing law so as to bring the same into conformity with the Constitution, was entitled to have made the Adaptation Order No. 5 of 1981; but that in the particular case in hand, the President’s Adaptation Order aforesaid was inconsistent with the provisions of Section 195(4) of the Constitution.

It is now necessary to consider and examine these submissions.

In the Constitution, “Police”, as a subject for legislation, and which is central to the present dispute, is slotted as Item 44 in Part 1 of the Exclusive Legislative List in the second Schedule thereto, which, strictly interpreted, means that it is only the National Assembly which is endowed with the legislative power over the “Police” except, of course, where it is otherwise provided for in the body of the Constitution. That must be so, because the making of law for the maintenance of law and order and securing of public safety and public order is a very wide field indeed the responsibility for which must be shared between the National Assembly and the State House of Assembly. It should be regarded and conceived as a joint enterprise within the limitations imposed by the Constitution.

It should also be realised that the Public Order Act No. 5 of 1979 only dealt with “the conduct and control of public assemblies, meetings and processions,” which is only one particular, albeit very important, aspect of what after all is a wide field as already stated.

From the brilliant submissions of learned Attorneys-General for the three plaintiffs in the suits under consideration, certain important questions arise for determination. The first, and perhaps the most important, such question is clear enough. It is this:

(1) As from 1st October, 1979, when the Constitution came into force did the Public Order Act (No. 5 of 1979) take effect as a State Law, that is to say, Law made by the State House of Assembly as claimed by the plaintiffs

Arising from the first question the other questions for determination must be:

(1) If on the other hand the Public Order Act (No.5 of 1979) did not on 1st October, 1979, take effect as a State Law but as Federal Law, that is to say, an Act of the National Assembly, who then in February, 1981 had the authority as the appropriate authority to modify it to conform with the provisions of the Constitution in terms of Section 274 of the Constitution

(2) Can a National Assembly in the exercise of its law making function constitutionally impose a duty on the Governor of an autonomous state under the Constitution And

(3) Are all the modifications made by the President consistent with the provisions of Sections 11 and 195(4) of the Constitution

In the search for an appropriate and Constitutional answer to the first question, it seems to be necessary to start with the Public Order Act (No. 5. of 1979) itself. It is obvious that in promulgating the Public Order Act (No. 5 of 1979) the effect of which was a reconciliation of divergencies in the laws then in force in the several states of the Federation and the repeal of such divergent laws replacing the same with one single enactment having uniform application throughout the Federation, the Federal Military Government clearly had succeeded in unifying all the laws in force in the 19 states of the federation concerned with the regulation of the proper and peaceful conduct of public assemblies, meetings, and processions. By that enactment the Federal Military Government expressed completely, exhaustively and exlusively what should be the law governing the proper and peaceful conduct of public assemblies, meetings and processions.

On 16th February, 1979, therefore, the Public Order Act (No.5 of 1979) came into force as the only law for the purpose aforesaid made by the Federal Military Government having uniform application throughout the Federation. Consequently on 1st October, 1979 when the new Constitution came into force the Public Order Act ( No. 5 of 1979) as an existing law by virtue of the provisions of Section 274(4) (b) of the Constitution took effect as an Act of the National assembly under the provisions of Section 274(1)(a) of the Constitution it being a law the National Assembly has power to enact by virtue of the provisions of Sections 4(2) and 11(1) of the Constitution and Part 1 of the second Schedule thereto.

The Public Order act (No. 5 of 1979) having taken effect as an Act of the National Assembly and has since 1st October, 1979, been operating as such throughout the Federation, it follows that by virtue of the provisions of Sections 274(2); (4) (a) (i) of the Constitution the President was on the 10th of February, 1981, the only competent authority to have modified it by Order in terms of the provisions of the Constitution so as to bring the law into conformity with the Constitution.

From the foregoing, it is evident that the contention of learned Attorneys-General canvassed before this court that the Public Order act (No. 5 of 1979) was a state law cannot be sustained. The contention is unsound in law and unreasonable in logic.

the view I now hold is reinforced by the fact that it being common ground that the power to make law for the maintenance of public peace, law and order and the securing of public safety and public order is a matter patently on the concurrent Legislative List, on assumption of power by the Federal Military Government as far back as 17th January, 1966, there was promulgated the Constitution (Suspension and Modification) Decree No. 1 of 1966. That Decree precluded the Military Governor of a region (later state) from making any law on any matter included in the concurrent Legislative List without the prior consent of the Federal Military Government; and also prescribed the mode whereby the legislative functions or powers of the Federal Military Government and of a Military Governor of a region were thenceforth to be exercised.

In Sections 3(1) and (2) and 4(1) and (2) of the Decree, it is provided as follows:

“3(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 Region –

(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 included in the Concurrent Legislative List.

(4)(1) The power of the Federal Military Government to make laws shall be exercised by means of Decrees signed by the Head of the Federal Military Government.

(2) The power of the Military Governor of a Region to make laws shall be exercised by means of Edicts signed by him.”

The provisions set out above were repeated in Sections 1(1) and (2) and 2(1) and (2) of the Constitution (Basic Provisions) Decree No. 32 of 1975.

It may be observed that the Decree No. 1 of 1966 has had a chequered career. I think it will be correct to state that although amended and restored a number of times, including the amendments which substituted the word “states” for the word “regions”, the Decree, after oscillating between repeal and restoration like the pendulum of a clock, was only finally laid to rest with the enactment of the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc.) Decree in 1979.

Be that as it may, in my view, had it been in the intendment of the Federal Military Government that the Public Order Act, 1979 should operate and be regarded as a State Law, nothing could have been simpler than for the Federal Military Government to have sent a proforma draft of the law coupled with the command of the Head of the Federal Military Government that the same be enacted as an Edict in each state.

The Public Order Act (No. 5 1979) was a Federal Law from its inception and therefore on the 1st October, 1979, was deemed to be an Act of the National Assembly. It was competent in the circumstances for the President to have modified its provision in the exercise of the Constitutional powers conferred upon him by the Constitution as the appropriate authority so as to bring the law into conformity with the provisions of the Constitution.

In terms of the provisions of Section 4(6) of the Constitution, the legislative power of the State is vested in the house of Assembly of the State. The Governor is the Chief Executive of a State (see Section 162 of the Constitution). In the Governor is vested the executive powers of the State. Such executive powers extend to the maintenance of the Constitution and all laws made by the House of Assembly of the State and to all matters with responsibility to which the House of Assembly has powers to make laws and must be exercised by the Governor in accordance with the provisions of the Constitution.

On the basis of the provisions of the Constitution, and having regard to the autonomy of the State, and realising that the Governor is bound only to enforce all laws Constitutionally made by the State House of Assembly, I accept the submissions made by Chief Williams, learned counsel for the defendants, and I am satisfied that neither the National Assembly nor the President has the Constitutional power to impose any new duty on the Governor of the State. Such an imposition would normally meet with resentment and refusal to perform for the enforcement of which there is no Constitutional sanction. For that reason it would have been unconstitutional for the President in the Adaptation Order (No.5 of 1981) to have replaced the Military Administrator with the Governor of the State.

After a careful study and analysis of the provisions of the Constitution, I am satisfied that it was proper and Constitutional and within the competence of the President, and I so hold, to have replaced the Military Administrator with the Commissioner of Police and the Inspector-General of Police respectively wherever they appear in the Order. I also hold that it was also Constitutional for the President to have substituted the Attorney-General of the Federation and the Minister of the Federation for the Military Administrator and the council of State respectively. Furthermore, it should be noted that under the provisions of Section 140 of the Constitution and Part 1 of the third Schedule thereto, the Council of State is only an Advisory Body to the President. It can only advise when requested to do so by the President on any matter concerning the maintenance of public order within the Federation or any part thereof.

I am also of the opinion that Chief Williams was right in conceding, when pressed by the court, the point having been taken by the court that it was not consistent with the provisions of Section 195(4) of the Constitution for the President in the Adaptation Order (No. 5 of 1981) to have deleted in Section 4(3) of the Order aforesaid the words:

“After consultation with the Military administrator of the State”,

and to have substituted therefor the words:

“With the concurrence of the governor of the State.”

The reason for this is that the power conferred on the Governor by the new words “with the concurrence of the Governor of the State” is by far wider than what is contemplated should be the power of the Governor under the provisions of Section 195(4), bearing in mind the proviso thereto which places the ultimate authority over the police squarely on the President. I am of the view that the new words “with the concurrence of the Governor of the State” should be struck down on the ground that the same are unconstitutional. In any case they are totally void, being inconsistent with the relevant provision of the Constitution.

In the circumstances I have reached the conclusion and agree with the judgment of my Lord, the Chief Justice of Nigeria and subject to the observations made above, that all the three suits should be dismissed. They are accordingly dismissed. There will be no order as to costs.

A. G. IRIKEFE, J.S.C.: I have had the privilege of reading in draft from the lead judgment just read by my learned brother, Fatayi-Williams, Chief Justice of Nigeria. I agree for the reasons stated in the said judgment that the claims of the plaintiffs in the three consolidated suits, save in that aspect where the power of concurrence is conferred on a State Governor by the adaptation order, are devoid of merit and should be dismissed. I wish to repeat by way of emphasis merely, that as at 1st October, 1979, the Public Order act (Decree No. 5 of 1979) took effect as Federal Law and must be deemed to be an Act of the National Assembly. As an act of the National Assembly, the “appropriate authority” within the con of Section 274 sub-section 4 (c) of the 1979 Constitution for the purpose of making modifications, or changes in the provisions of the law is the President of the Federal Republic of Nigeria. In making such changes, the President can only act within the limit of the powers conferred on him by the Constitution itself. He cannot, for instance, lawfully confer powers of concurrence upon a State governor as he had purported to do under the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 under Section 4(3) thereof.

It follows, therefore, that the modification under this section is incompetent, unconstitutional and therefore null and void. Under Section 11 of the Constitution, both the National Assembly and the State House of Assembly are competent to make laws with respect to the maintenance and securing of public safety and public order but it is plain from the language of the Public Order Act that this legislation is intended to cover the entire field on the issue of law and order. This view would appear to derive added strength from the fact that, as pointed out in the lead judgment the operational control of the police is a sine-qua non in the implementation of the provisions of the Public Order Act.

The police is a subject under item 44 of the Exclusive List and by virtue of sections 194 and 195 of the Constitution, the operational control of the police is vested in the National Assembly and the President of the Federal Republic. Section 194(1) provides as follows:-

“There shall be a Police Force for Nigeria, which shall be styled the Nigeria Police Force and subject to the provisions of this section no other Police Force shall be established for the Federation or any part thereof.”

The Public Order Act and the Nigeria Police Force are like siamese twins, together and inseparable. If, without it being conceded, a State Government in the exercise of its powers under Section 11 of the Constitution were to enact a Public Order Law, such legislation would be lacking in means of enforcement.

M. BELLO, J.S.C.: I have had a preview of the judgment of my learned brother, the Chief Justice of Nigeria. For the reasons stated by him, I respectfully endorse his view that the modification in respect of Section 4(3) of the Act in question is unconstitutional. Subject to this exception, I agree that all the claims in each of the three consolidated cases have no merit and should be dismissed. I agree with the order of dismissal and the order as to costs made by the learned Chief Justice.

C. IDIGBE, J.S.C.: I am in respectful agreement with my learned brother the Chief justice of Nigeria that, save as indicated in respect of subsection (3) of Section 4 of the Constitution of Nigeria (Adaptation of Public Order Act) Order 1981, in his judgment just read and of which I had a preview, the claims in the consolidated suits be dismissed. It is, however, my desire to add a few observations of my own.

Each of the plaintiffs in these suits was led to initiate these proceedings as a result of absolute misconception of the meaning to be placed on Section 276 of the 1979 Constitution of the Federation of Nigeria (hereafter in this judgment referred to, simply, as “the 1979 Constitution” or “the Current Constitution”). It is obvious from the arguments and submissions advanced on behalf of the plaintiffs, in the course of hearing in these suits, and, particularly, also from the statement of claim filed in suit SC.57/1981 that the plaintiffs regard the power of “control of assemblies, meetings and public processions” within the States of the Federation as well as all the obligations connected therewith, given under the Public Order Act, No.5 of 1979 (hereafter referred to, simply, as “the 1979 Public Order Act”) to the Military Administrators of each State as a “proprietary right” inherited by each of them virtute officii. Reliance for this stand was placed on Section 276 of the 1979 Constitution; and it is their submission that “the Governor of a State” is, for the operational purpose of the 1979 Public Order Act, not only the successor to “the Military Administrator” mentioned in the Act aforesaid but also to be regarded as both “successor” and “a former authority of a State” within the contemplation of sub-section (2) of Section 276 aforesaid.When, therefore, the President of the Federal Republic of Nigeria (hereafter in this judgment referred to, simply, as “the President”) by the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 (hereafter in this judgment referred to, simply, as “the 1981 public Order Act”) modified the provisions of a number of sections of the 1979 Public Order act by substituting “the Commissioner of Police” for “the Military Administrator” wherever the latter expression appears in the latter Act, the Governors of the plaintiffs States (i.e. the States of Ogun, Bendel and Borno) regarded this exercise by the President as an unwarranted interference and, indeed, – they contend – an unlawful erosion of their respective Constitutional “rights” and “obligations” as the case may be. The Attorneys-General of each of the said States took much the same view of the substitution in the 1981 Public Order Act by the President of “the Attorney General of the Federation” for “the attorney General of the State” wherever the latter expression appears in the 1979 Public Order act.

By Paragraph (2) of the Statement of defence in suit SC.57/1981 the defendants contend that the provisions of section 276 of the 1979 Constitution deal with “rights, liabilities and obligations arising under contract, tort or other claims by or against a former authority of the Federation or State”; and they further contend that “the said provisions do not apply to powers or obligations conferred or imposed by statute” (underlining by me for emphasis). Subsection (2) of Section 274 of the 1979 Constitution having been set out in the judgment of my learned brother the Chief Justice of Nigeria, I propose to set out only the other portions of Sections 274 and 276 relevant to the point now under consideration; these are:

“274(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution and shall be deemed to be:-

(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

(b) a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2) xx xx xx xx

(3) xx xx xx xx

(4) In this section, the following expressions have the meanings assigned to them, respectively

(a) “appropriate authority” means –

(i) the President, in relation to the provisions of any law of the Federation

(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of a State……….

(iii) xx xx xx

(b) “existing law” means any law and includes any rule or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force.

“276(1) Without prejudice to the generality of section 274 of this Constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against –

(a) a former authority of the Federation as representative or trustee for the benefit of the federation; or

(b) a former authority of a state as representative or trustee for the benefit of the State, shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and government of the State as the case may be.

(2) For the purpose of this section –

(a) the President and Government of the Federation and the Governor and Government of a State shall be deemed, to be successors to the said former authority of the federation and former authority of the state in question; and

(b) xx xx xx xx”

(underlining by me for emphasis.)

I am inclined to the view advocated by the defendants in their statement of defence in SC.57/1981 – that “right, privilege, liability or obligation” referred to in Section 276 aforesaid are rights which usually or normally require to be transferred or assigned (by assurance although it can sometimes, be so done by operation of law) to another person by or on behalf of the person in whom they are already vested before they can be enforced, exercised or enjoyed by or against such transferee; hence it was necessary for the Constitution to make the specific provision in Section 276 aforesaid that these “right, privilege, liability, or obligation” shall on the date when that section comes into force “without further assurance than the provisions” of the section under consideration “vest in or become exercisable or enforceable by or against the President and Government of the Federation and the Governor and Government of a State as the case may be”. (Subsection (1) of Section 276, aforesaid, refers). Rights, liabilities and obligations arising under contract, tort and wills for instance, certainly require to be transferred from one in whom they vest – by act of parties (which almost always require some form of assurance), – to another person before they can be exercised by or against the latter. One common form of transfer by operation (or implication) of law occurs when there has been a succession in office (i.e. a sucession by the transferee to the office of the transferor); and ,as will be seen from the next paragraph this is the true legal position in relation to transfer of statutory rights (i.e. rights imposed by or created under statutes).

Power which is another form of legal right is either public or private; public powers “are those vested in a person as an agent or instrument of the functions of the State….” and private powers, on the other hand, “are those which are vested in persons to be exercised for their own purposes and not as agents of the State” [see Salmond: Jurisprudence 12th Edition p. 229-230 Chapter 42] when a statute confers a power to the holder of an office, it is a public power; and then unless the contrary intention appears from or in the statute , the power may be exercised only virtute officii (i.e by the holder of the office and by his successor – in-office or the holder of the office for the time being). We are concerned here in these proceedings with powers vested in the “Military Administrator” by statute qua state functionary and this power belongs to the category of public power; unlike the private legal right or private power it does not require any act of party or assurance to be transferred. It is my view that Section 276, which makes reference to transfer by assurance, does not contemplate such legal rights as public powers.

Having made the foregoing observations, I can now go on to deal with the question whether the President is right in substituting (or adapting) “the Commissioner of Police” in 1981 Public Order Act for “the Military Administrator” wherever the latter expression appears in the 1979 Public Order Act And whether the President is also right in substituting “the Attorney General of the Federation” in the 1981 Public Order Act for “the Attorney General of a State” wherever the latter expression appears in the 1979 Public Order Act Put in another form: is not the President wrong in failing to adapt “the Governor of a State” or, to retain “the Attorney General of a State” in the 1981 Public Order Act as the “successors” envisaged in Section 276 of the current Constitution to the “Military Administrator” and “the Attorney General” of a state for the latter officers wherever mention is made of them in the 1979 Public Order Act Any attempt to approach these questions without a careful consideration of section 274 of the current Constitution (as, in my view, the plaintiffs failed to do) is bound to lead to erroneous answer. Subsection (1) of Section 276 aforesaid clearly states that the provisions of the entire section are “without prejudice to the generality of section 274.” Accordingly, whoever is to be “a successor” of a “former authority of the Federation” or of a State in any adaptation exercise by “the appropriate authority” (under the provisions of subsections (1) (a) and (1) (b) of Section 274) aforesaid must be one whose selection must bring the said exercise – in the language of subsection (2) of Section 274 – “into conformity with the provisions of the Constitution” (i.e. the 1979 Constitution).

Now, as has been pointed out in the judgment just read by my lord, the Chief Justice, both the National Assembly and the House of Assembly of a State have powers under the current Constitution to make laws with respect to “the maintenance and securing of public safety and public order….” [subsections (1) and (2) of Section 11 refer]; and the 1979 Public Order act is a law relating to an aspect of the “maintenance and securing of public safety and public order”. The power of the State House of Assembly is, however, limited to making such laws within the State, (see subsection (7) of Section (4) of the current Constitution); whereas the National Assembly make such laws for the entire Federation or any part of it. (Subsection (2) of Section 4 aforesaid.) It is, however, clear from the provisions of Section 5 of the current Constitution that it is not competent for the National Assembly, by enacting a law, to regulate or interfere with the exercise by a State Governor of his executive functions; nor is it competent for a State House of Assembly, by enacting a law, to regulate or interfere with the exercise by the President of his executive functions. In this regard, I gratefully adopt the observations of Latham, CJ., that:

“….federal legislation, which though referring to a subject of Federal power is really legislation about what is really a State Government function, may be said to interfere unduly with that function and therefore to be invalid……..the invalidity of a federal law which seeks to control a state government function is brought about by the fact that it is in substance a law with respect to a subject as to which the Commonwealth Parliament has no power to make laws…….”

[See Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 at 61 and 62 per Latham, CJ.] Therefore, assuming that the president could validly conduct the adaptation exercise under consideration in these proceedings (i.e. adapt with a view to appropriate modification of the 1979 Public Order Act) – an issue which I propose to examine in the next paragraph he could not validly have conferred functions (or functional “rights”) on the governors of the States of Ogun, Bendel and Borno, or of any of the states of the Federation for that matter; nor as my Lord, the Chief Justice has also pointed out could he validly have imposed a duty (or functional “obligations”) on the said Governors. I pause to dwell on the issue of “imposition of duty”: it is a well-known rule of construction or interpretation of statute that “where” – as appears, from the provisions of subsections (1) and (2) of Section 1 of the 1979 Public Order Act, to be the case in these proceedings – ” a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the courts will require it to be exercised”. [underlining by me for emphasis: See Julius v. The Bishop of Oxford (1880) 5 App. Cas. 214 at 255 per Lord Cairns]. In other words, there is an obligation or duty on the part of the public officer to exercise that power; and so it does appear to me to be in respect of the powers of the “Military Administrator” under subsections (1) and (2) of Section 1 of the 1979 Public Order Act.

Therefore, had the President in the exercise of his power of adaptation substituted in the 1981 Public Order Act for the expression “the Military administrator” used in the 1979 Public Order Act, “the Governor of a State” he would, in my view, not only have imposed a duty on a State governmental function but, also have done so without any lawful authority; in other words, the exercise would have been incompetent. Therefore, the answer to the question which I posed earlier, whether the President is wrong in failing to adapt in the 1981 Public Order Act, “the Governor of a State” as the successor to “the Military Administrator” wherever the expression is used in the 1979 Public Order Act, must be in the negative; for the same reasons which I have set out above he (the President) is not wrong in failing to retain the phrase “the Attorney General of a State” in the said Act (i.e. 1981 Public Order Act). Still the other question whether the President is right in substituting (or adapting) “the Commissioner of Police” for “the Military administrator” in the Order aforesaid cannot, in my view, be correctly answered unless and until full consideration is given (1) to the expression ‘bring into conformity with the provisions of this Constitution and (2), the subsidiary question whether the President is the proper person – i.e. the “appropriate authority” within the contemplation of subsection (2) of the said section – to adapt the 1979 public Order Act.

I share the views of my learned brother, the Chief Justice of Nigeria that the President is the” appropriate authority” to adapt the 1979 Public Order act. On the 1st October, 1979, when the current Constitution came into force the 1979 Public Order Act ‘became an “existing law” within the purview of subsection (4) (b) of Section 274 aforesaid, and for the reasons which I will give anon, it is my view that, contrary to the submissions of the learned Attorney General for Ogun State it became, not a State Law – under subsection (1) (b ) of Section 274 – but, a Federal Law by virtue of the provisions of subsection (1) (a) of Section 274. In the first place, it is quite clear from the preamble to the said Act (i.e. the 1979 Public Order Act) that it was enacted (a) with a view to a complete repeal of the avalanche of State legislation for “peaceful conduct of public assemblies, meetings and processions” in existence prior to the coming into force of the said Order itself and, (b) for the purpose of having a law on the subject which – in the words of the Act – Should be “of uniform application throughout the Federation”. Secondly, the said Act was enacted as a “Decree” (not an “Edict”) and there is no question that – as its provisions manifest – it was intended to exist as a law of the Federal (not a State) Military Government; and in Section 13 thereof it is provided that “the enactments set out in Schedule (2) to this Decree are hereby repealed…..and for the avoidance of doubt, all subsidiary instruments made thereunder are hereby repealed.” Schedule (2) then sets out a number of State laws and among them an Edict – i.e. a State Law – on the subject promulgated during the Military Regime.

Now, although by virtue of the provisions of Section 11 of the 1979 Constitution both the National Assembly and a State House of Assembly may legislate on the subject of public order and maintenance of public security there is no doubt that the Federal Military Government evinced a clear intention in the said Act of 1979 (the 1979 Public Order Act) to deal exhaustively and exclusively, by that enactment, with the aspect of public order and maintenance of security relating to “assemblies, public meetings and processions” throughout the entire Federation; in other words, as my Lord, the Chief Justice pointed out in the judgment just read by him, it was the intention of that government to cover the entire field on the subject by that enactment. In the circumstances the said Act will prevail over any other enactment by a State House of Assembly under the subject; this is because where, under a Federal set up, both the Federal and State Legislatures each, being empowered by the Constitution so to do, legislate on the same subject then (1) if it appears from the provisions of the Federal Law on the subject that the Federal legislature intends to cover the entire field of the subject matter and thus provide what the law on the subject should be for the entire Federation, then the State Law on the subject is inconsistent with the Federal Law and the latter must prevail and the State Law on the subject is invalid. [See also Exparte McLean (1930) 48 CLR 472 at 483 per Dixon, J., (as he then was); Lakanmi v. Attorney General for Western Nigeria (1974) ECSLR 713 at 722 per Ademola, CJ.] If no general intention to cover the entire field on the subject can be gathered from the Federal Law, then the mere concurrence of the two laws (i.e.the Federal and State Laws) on the subject is not eo ipso an inconsistency although the detailed rules in the provisions of both laws may lead to different results on the same facts; and in the words of Colin Howard with which I respectfully agree “unless the two rules actually contradict one another it is a question of legislative intention,………to be inferred from the legislative con, whether the laws in question complement one another or are inconsistent (underlining by me). If there is an inconsistency it invalidates the State Law only so long as the commonwealth Law remains in force. If the Commonwealth Law is repealed, and the state Law is not, the State Law becomes operative” [See Colin Howard: Australian Federal Constitutional Law 2nd Edition at p. 45 (underlining by me)]. Upon a careful examination of the provisions of the 1979 Public Order Act, particularly the preamble thereto, I am in respectful agreement with my Lord, the Chief Justice that the Federal Military Government by that enactment having clearly evinced an intention to cover the field on the subject to which the said Act relates, that law (the 1979 Public Order act) remained a Federal Law on 30th September, 1979, and was on October 1st, 1979, (when the current Constitution came into force) – in the language of subsection (1) (a) of Section 274 aforesaid – “deemed to be an Act of the National Assembly (NOT a state law or a Law of a House of Assembly as the learned Attorney-General for Ogun State contends). In the event, it is the President (not a State Governor) who can as “the appropriate authority” exercise the power of adaptation in respect of the provisions of the 1979 Public Order Act.

With regard to the phrase “bring into conformity with the provisions of this Constitution” used in sub-sections (1) and (2) of Section 274, I agree with my Lord, the chief Justice that the section envisages that any adaptation exercise must involve such modifications of the provisions of a statute or law which is being adapted as should bring it into line with the provisions of the current Constitution. Therefore, any adaptation exercise by “the appropriate authority” (in relation to the proceedings in hand, the President) which seeks to modify the 1979 Public Order Act to the extent that:

“appropriate authority” within the contemplation of subsection (2) of the said section – to adapt the 1979 public Order Act.

I share the views of my learned brother, the Chief Justice of Nigeria that the President is the” appropriate authority” to adapt the 1979 Public Order act. On the 1st October, 1979, when the current Constitution came into force the 1979 Public Order Act ‘became an “existing law” within the purview of subsection (4) (b) of Section 274 aforesaid, and for the reasons which I will give anon, it is my view that, contrary to the submissions of the learned Attorney General for Ogun State it became, not a State Law – under subsection (1) (b ) of Section 274 – but, a Federal Law by virtue of the provisions of subsection (1) (a) of Section 274. In the first place, it is quite clear from the preamble to the said Act (i.e. the 1979 Public Order Act) that it was enacted (a) with a view to a complete repeal of the avalanche of State legislation for “peaceful conduct of public assemblies, meetings and processions” in existence prior to the coming into force of the said Order itself and, (b) for the purpose of having a law on the subject which – in the words of the Act – Should be “of uniform application throughout the Federation”. Secondly, the said Act was enacted as a “Decree” (not an “Edict”) and there is no question that – as its provisions manifest – it was intended to exist as a law of the Federal (not a State) Military Government; and in Section 13 thereof it is provided that “the enactments set out in Schedule (2) to this Decree are hereby repealed…..and for the avoidance of doubt, all subsidiary instruments made thereunder are hereby repealed.” Schedule (2) then sets out a number of State laws and among them an Edict – i.e. a State Law – on the subject promulgated during the Military Regime.

Now, although by virtue of the provisions of Section 11 of the 1979 Constitution both the National Assembly and a State House of Assembly may legislate on the subject of public order and maintenance of public security there is no doubt that the Federal Military Government evinced a clear intention in the said Act of 1979 (the 1979 Public Order Act) to deal exhaustively and exclusively, by that enactment, with the aspect of public order and maintenance of security relating to “assemblies, public meetings and processions” throughout the entire Federation; in other words, as my Lord, the Chief Justice pointed out in the judgment just read by him, it was the intention of that government to cover the entire field on the subject by that enactment. In the circumstances the said Act will prevail over any other enactment by a State House of Assembly under the subject; this is because where, under a Federal set up, both the Federal and State Legislatures each, being empowered by the Constitution so to do, legislate on the same subject then (1) if it appears from the provisions of the Federal Law on the subject that the Federal legislature intends to cover the entire field of the subject matter and thus provide what the law on the subject should be for the entire Federation, then the State Law on the subject is inconsistent with the Federal Law and the latter must prevail and the State Law on the subject is invalid. [See also Exparte McLean (1930) 48 CLR 472 at 483 per Dixon, J., (as he then was); Lakanmi v. Attorney General for Western Nigeria (1974) ECSLR 713 at 722 per Ademola, CJ.] If no general intention to cover the entire field on the subject can be gathered from the Federal Law, then the mere concurrence of the two laws (i.e.the Federal and State Laws) on the subject is not eo ipso an inconsistency although the detailed rules in the provisions of both laws may lead to different results on the same facts; and in the words of Colin Howard with which I respectfully agree “unless the two rules actually contradict one another it is a question of legislative intention,………to be inferred from the legislative con, whether the laws in question complement one another or are inconsistent (underlining by me). If there is an inconsistency it invalidates the State Law only so long as the commonwealth Law remains in force. If the Commonwealth Law is repealed, and the state Law is not, the State Law becomes operative” [See Colin Howard: Australian Federal Constitutional Law 2nd Edition at p. 45 (underlining by me)]. Upon a careful examination of the provisions of the 1979 Public Order Act, particularly the preamble thereto, I am in respectful agreement with my Lord, the Chief Justice that the Federal Military Government by that enactment having clearly evinced an intention to cover the field on the subject to which the said Act relates, that law (the 1979 Public Order act) remained a Federal Law on 30th September, 1979, and was on October 1st, 1979, (when the current Constitution came into force) – in the language of subsection (1) (a) of Section 274 aforesaid – “deemed to be an Act of the National Assembly (NOT a state law or a Law of a House of Assembly as the learned Attorney-General for Ogun State contends). In the event, it is the President (not a State Governor) who can as “the appropriate authority” exercise the power of adaptation in respect of the provisions of the 1979 Public Order Act.

With regard to the phrase “bring into conformity with the provisions of this Constitution” used in sub-sections (1) and (2) of Section 274, I agree with my Lord, the chief Justice that the section envisages that any adaptation exercise must involve such modifications of the provisions of a statute or law which is being adapted as should bring it into line with the provisions of the current Constitution. Therefore, any adaptation exercise by “the appropriate authority” (in relation to the proceedings in hand, the President) which seeks to modify the 1979 Public Order Act to the extent that:

(1) the “Governor of a State” becomes empowered to carry out specific functions of the Military Administrator set out in sections 1 and 10 of the said Act will, for the reasons already given in the preceding paragraphs, not be in line with the provisions of the current Constitution.

(2) the “commissioner of Police” in a State may exercise the powers of the Military Administrator aforesaid will, for the reasons already given, and the additional fact pointed out in the lead judgment of my Lord, the Chief Justice that the “Police’ is now (a) a subject in the Exclusive List of the Schedule to the current Constitution and (b) under the control of the Inspector General of Police who should take instructions from the President, be in line with the provisions of the current Constitution.

(3) the Commissioner of Police in a State may exercise his powers under subsection (3) of Section 4 of the said Act only “with the concurrence of the Governor of a State” (as, indeed, is provided in the 1981 Public Order Act) will also for reasons already stated in the preceding paragraphs and for reasons stated in the lead judgment of my learned brother the Chief Justice (which I need not repeat) not be in line with the current Constitution.

(4) the Attorney General of a State (and not the Attorney General of the Federation) is obliged to continue to exercise his functions under subsection (2) of Section 6 of the said Act will, for the reasons already stated in the preceding paragraph, also be inconsistent (i.e not in line) with the current Constitution.

Therefore, the President in his adaptation exercise under consideration in these proceedings has selected such officers or functionaries as, under the existing Constitution, he may lawfully confer with such rights or impose upon such obligations or duties as may arise under the 1979 Public Order act, and accordingly, the answer to the question which I posed earlier on – whether the President is right in substituting in the 1981 Public Order Act (or adapting) “the Commissioner of Police” for “the Military Administrator” and “the Attorney General of the Federation” for “the Attorney General of a State” wherever the expressions substituted occur in the 1979 Public Order act – must be in the affirmative; however, his adaptation exercise in respect of the subsection (3) of Section 4 of the 1981 Public Order act is, in my view, invalid and unconstitutional.

As earlier on stated, I agree with the order of dismissal and as to costs proposed in the lead judgment of my learned brother, the Chief Justice of Nigeria.

K. ESO, J.S.C.: I had the privilege of a preview, in draft, of the judgment which has just been delivered in these three consolidated suits by the Chief Justice of Nigeria. The suits were consolidated by Order of court on 2nd November, 1981.

I agree, for the reasons given in the said judgment of the learned Chief Justice and also for the reasons which I will give in this judgment, that the claims of the plaintiffs in the three consolidated suits are devoid of merit, save in regard to the power of concurrence give to the Governor by the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 s.1.5 of 1981 whereby Section 4(3) of the Public Order Act 1979 (1979 No.5) was modified to the effect that the concurrence of the Governor of a State, as opposed to mere consultation with him, was required in regard to prevention of serious public disorder and which modification was purported to be covered by Section 195(4) of the Constitution of the Federal Republic of Nigeria, 1979. However, I intend to deal with this issue later in the judgment. The claims except for the foregoing, fail and they stand dismissed as per the order contained in the aforesaid judgment of Fatayi-Williams, CJN. Whatever I should add in this judgment would be by way of emphasis, having regard to the constitutional importance of the case.

As the claims have been adequately set out in the judgment aforesaid I will not repeat them in this judgment, nor any of the provisions of the Constitution or Legislation already fully set out in the aforesaid judgment of the learned Chief Justice except where such repetition is for the easy understanding of this judgment. I will proceed to deal with the issues raised in the case under various subheadings.

The Public Order Act 1979 N0. 5

A pertinent question in this case and, I think, a safe basis to commence investigation into the problems raised herein is whether the Public Order Act 1979, No.5 was, before the 1st October, 1979, that is, the date of coming into force of the Constitution of the Republic of Nigeria 1979, was either a Federal Legislation or State Legislation or whether or not it could be deemed to be both Federal and State Legislation. The Act itself which at the time of its enactment was a Federal Military Decree was passed in pursuance of the constitutional power conferred on the Federal Military Government by Section 1 subsections (1) to (4) of the Constitution (Basic Provisions) Decree, 1975 No. 32, which Decree was evolved after the military coup of 1975.

The preamble to the Public Order Act would appear to state succinctly and sufficiently the reasons for the enactment of the Act. It is indeed self explanatory. It emphasises the divergence of the enactments which provide for the conduct and control of public assemblies, meetings and processions in all the states and so the expedience in having a single enactment for the purpose thereof with a uniform application. The preamble reads –

“WHEREAS there are in force in every state in Nigeria certain enactments providing for the conduct and control of public assemblies, meetings and processions:

AND WHEREAS the provisions of the said enactments are divergent and it is therefore expedient to make a single enactment having uniform application throughout the Federation for the purposes of the proper and peaceful conduct of public assemblies, meetings and processions and other matters connected therewith.” (underlining mine)

And to drive this point of uniformity of application home, by Schedule 2 to the Act, all the State Public Order Laws which were severally in operation before the Act in all the nineteen states in the country (these Laws have been set out in the judgment of the learned Chief Justice) were repealed. Of importance also is the fact that the Public Order Act was enacted by a Military Government which understandably found it much easier and more effective, even by the nature of their discipline, to require and have a firm central government. The front that was thus presented by the Military Government was almost an attempt, at, incongruous, though it may seem, a unitary government in the country, within a federal structure. It is obvious to me therefore that the Public Order act, having regard to its history and content, was, at the commencement date, that is 16th February, 1979, meant only to and it was indeed, a Federal Legislation contrary to the contention of Chief Adaramaja learned Attorney General of Ogun State.

EXISTING LAW

The next question is whether the Public Order Act was an existing Law within the con of the Constitution.

Under Section 274(4)(b) of the Constitution of the Federal Republic of Nigeria (hereinafter referred to simpliciter as “the Constitution”) the phrase “existing law” has in effect been defined as any rule of law or any enactment or instrument whatsoever which is in force immediately before 1st October, 1979. By virtue of Section 274(1) of the Constitution, the Public Order Act, which as I have said is a Federal Legislation became deemed, on that day, that is 1st October, 1979, the date of the coming into force of the Constitution, an Act of the National Assembly -see also on the issue of the authority of the National Assembly to make laws in regard to the subject matter of public order and public activity the provision of Section11(1) of the Constitution. This empowers the National Assembly to make laws for the Federation or any part thereof with respect to the maintenance and securing of public safety and public order.

ADAPTATION OF THE EXISTING LAW

Having held that the Public Order Act is an existing law and also that it is a Federal legislation, the next issue to examine is who has power under the Constitution to adapt it. By virtue of Section 274(4)(a)(i) of the Constitution the President is the appropriate authority in relation to the provisions of any law of the Federation for the purpose of adaptation of the Laws. He has power under Section 274(2) of the Constitution to make such changes in the of any existing law as he considers necessary or expedient to bring the law into conformity with the provisions of the Constitution. The subsection is reproduced hereunder for ease of reference:-

“The appropriate authority may at any time by order make such changes in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.”

In making these changes in the of the Act, the President could modify the Act for the purpose of bringing it into conformity with the provisions of the Constitution and “modification” has been defined under Section 274 (4) (c) to include addition, alteration, omission or repeal.

What forms the gravamen of the complaint by the plaintiffs in these consolidated suits is whether in the exercise of such adaptation, the powers conferred or the duties or functions imposed on the Military Administrator in the existing law, that is, the Public Order Act, 1979 No. 5 hereinafter referred to as ‘the Public Order act should be transferred to the Commissioner of police as in the adaptation under reference (see the schedule to the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order act) Order 1981 S.I.5 of 1981 (hereinafter referred to simpliciter as the ‘Adaptation Order’) or that the powers or the duties be conferred or imposed as the case may be on the Governor of each State as contended by the plaintiffs in this case

By virtue of Section 1(1) of the Public Order act, the Military Administrator of each state was empowered to direct the conduct of all assemblies, meetings and processions on the public roads or places of public resort in the State and prescribe the route by which and the times at which any procession may pass. The Military Administrator was to be satisfied that the assembly, meeting or procession was not likely to cause a breach of the peace [Section 1(2)]; he was to direct the issuance of licence (ibid.) he might authorise the issuance of general licenses by some stated superior police officers setting out conditions under which and by whom and the place where any particular kind of assembly may be convened [Section 1(3)].

In giving an answer to this important question which as I have said forms the gravamen of the complaint of the plaintiffs a short reference should at the same time be made to the submissions of learned counsel as these submissions are relevant if only for the fact that though the three suits are consolidated, learned counsel for each of the cases had a separate and different approach to the issues and they made submissions which sometimes contradicted one another.

Chief Adaramaja, learned attorney General for Ogun State, contended that the Public Order Act became a State Law on 1st October, 1979 by virtue of the provisions of Section 244(1) (b) of the Constitution. The Public Order Act was passed, learned counsel further submitted at the time of its enactment, by the federal Military Government, for the benefit of the States. Counsel then drew the attention of the court to Section 276 of the Constitution and asked the court to construe the provision as meaning that the Governor became the beneficiary of the powers granted to the Military Administrators under the Public Order Act. By Section 1 of the Adaptation Order, the President made a new law which, in the submission of learned counsel, he has no constitutional power to make. In any event, concluded Chief Adaramaja on this point, the Public Order act, being a State Law, the President cannot touch it.

To pause here. The approach of learned Attorney General is, with respect, in my view, a simplistic way of resolving the issue, for if learned Attorney General is right that the Public Order act is a State legislation, then it stands to logic that as the President cannot under the Constitution amend a State law, that would dispose of the matter in favour of the plaintiffs. But, as I have said earlier, having regard to all available material, I cannot conceive of the Public Order Act being a State legislation. It is a Federal Law which is within the Constitutional competence of the President to adapt.

Mr. Sanyaolu’s (learned Attorney General for Borno State’s) contention, after conceding that the Public Order Act is a Federal legislation (in this sense he disagreed, and rightly in my view, with Chief Adaramaja), which the President can adapt, was that the power of the President, in process of such adaptation, granted to him by Section 274 (2) of the Constitution is, in the con of the Public Order Act, subject to Section 195(4) of the Constitution. This, he submitted, authorises the Governor of a State or such Commissioner of Police with regard to maintenance and securing of public safety and public order within the State. In other words, the plank on which Mr. Sanyaolu’s case rests is the provision of Section 195(4) of the Constitution. Perhaps it is pertinent at this stage to say that it would appear that learned counsel, with respect, did not seem to pay sufficient attention to the proviso to the section as this provides a complete answer to learned counsel’s statement. However, I will come back to this point later. A careful reading of the proviso with the subsection to my mind disposes of Mr. Sanyaolu’s case.

For Mr. Obasuyi’s part – (Mr. Obasuyi is the Attorney General for Bendel State) the Adaptation Order amounted to what he termed a usurpation of the powers of the Legislative Houses. Though the Commissioner of Police is responsible for the enforcement of law and order in the State, the Governor has sole responsibility for the maintenance of law and order. Learned counsel conceded though, that the Public Order Act is to be deemed to have been made by the National Assembly, in effect, also disagreeing with Chief Adaramaja who maintained that the Act was a State legislation.

Chief Rotimi Williams who represented the defendants in the three cases made his submissions together in regard to these defendants in the three consolidated suits. He said, in regard to the Public Order Act, and I fully endorse this, having regard to the view I have already expressed in respect thereof earlier, that is: that

(1) the Public Order Act took effect as a law enacted by the National Assembly on 1st October, 1979. I have made reference to the preamble and the Schedule to the Act in justification of this conclusion.

(2) it is competent for either a State Assembly or the National Assembly to confer powers and duties on the Police.

This must be so having regard to the provision of Section 11 of the Constitution which confers powers on both the National Assembly and the State Assemblies to make laws with respect to the maintenance and securing of public safety and public order. In pursuance of any act for the maintenance and securing of public safety and public order the police have to play an integral part and both the Federal and the State Governments would be interested. There is however limitation on the powers of the State where there is concurrent powers in both the National Assembly and the State Assembly in regard to a subject. This is a principle of law known as covering the field, and in regard thereto, I would later examine the submission of Chief Williams to wit – In so far as the Public Order Act purported to take effect as a law enacted by the State Assembly, it was inconsistent with the Federal Public Order act and therefore it was void.

(3) it would not be competent for the National Assembly to regulate or interfere with the exercise by a state Governor of his executive functions nor would it be competent for a State Assembly to regulate or interfere with the exercise by the President of his executive functions.

This, to my mind, is very important and it is the bedrock on which a Federal Constitution lies. To give effect to the complaint of the plaintiffs, or more explicitly, if in the Adaptation Order the President has imposed the duties contained in the Public Order Act on the State Governors it necessarily follows that that failure by the Governors to perform the duties thus imposed should attract constitutional sanctions. This then would provide a situation whereby the Governors would be subject to the National Assembly. On the same principle the State Assemblies should be able to impose duties on the President and the President on default subject to State Assemblies.

Indeed the position becomes clearer if one examines Section 82(1)(b)(i) of the Constitution which empowers each House of Assembly by resolution published in its journal or in the Official Gazette of the Government to direct or cause to be directed an investigation into the conduct of affairs of any person charged or intended to be charged with the duty or responsibility for executing or administering laws enacted by the National Assembly, and also Section 120(1) (b) (i) of the Constitution which gives corresponding power to the State House of Assembly in regard to persons executing or administering laws enacted by that House.

Surely, such a situation as stated as above could not be in the contemplation of the Constitution framers. A situation where the Chief Executive of the country or a Federal Functionary could be subject to sanctions by a State House of Assembly or State Chief Executive or functionary could be subject to the authority of the National Assembly would offend not only against the spirit but also the letter of the Constitution. Each of the State Assembly is sovereign in its own House neither interferes with the Governments of the other. This is the true basis of a Federal Constitution. To be otherwise would lead to anarchy – the exact antithesis of the intendment of the Constitution.

Having held thus far that is, that the National Assembly could not validly impose a duty on a State functionary and vice versa, the President in exercise of his power to adapt the Public Order Act would be acting unconstitutionally if he imposed in the Adaptation Order duties and obligations on the Governor of a State as contended by the learned counsel for the Plaintiffs.

Then the next question is, if the President as I have held, is the person empowered by the Constitution to adapt the legislation and he could not constitutionally impose the duties, which in the legislation had been imposed on the State Military Administrators, on the State Governors, on whom could he impose the duties Firstly, let us examine the nature of the duties. Section 1 of the Public Order Act shows that the power in question is to direct the conduct of all assemblies, meetings and processions on the public roads or place or public resort in the State. The power is also to prescribe the route by which and the time at which any procession may pass. Important is the fact that the Military Administrator was under the law an embodiment of both the legislature and the executive as opposed to a State Governor who under the Constitution is only vested with executive powers of a State (see Section 5(2) of the Constitution). I have already stated that the President has no constitutional power to impose such obligations not only on a State Governor but also a State functionary. If, as he was obliged to do, he had to impose the duties on a federal functionary it stands to reason and certainly to common sense that the most appropriate federal functionary in a civilian regime for the regulation of assemblies, meetings and processions is the Police.

This should have been the end of the matter but then the issue has not been left that cut and dry by the plaintiffs who have introduced the provisions of Section 195 and 276 of the Constitution. The contention of the plaintiffs on Section 195(4) is that the Governor of a State has power over the police. No doubt this is so but then one has to read the proviso to 195(4) with the subsection. This provision has already been set out in the judgment of the learned Chief Justice and I do not intend to reproduce it here.

I think Chief Williams put a very fair interpretation on the provision and I will respectfully adopt this interpretation for there is no doubt that on the State level the Governor has power by virtue of Section 195(4) to give instructions to the Commissioner of Police with respect to the maintenance and securing of public safety and public order within that State. This is reasonable, for the Governor has no military troops, so to say, as his counterpart the Military Governor or Military Administrator in the Military Government. Yet in virtue of the proviso to Section 195(4) there is a discretion in the commissioner of Police as to whether to obey the instructions of the Governors without question or refer the matter to the President or such Minister as might have been appointed to be in charge of Police affairs. This is because the Commissioner of Police is constitutionally under the Inspector General of Police who in turn would take instructions from the President as regards securing public safety and public order.

So, although the Governor could give instructions to the Commissioner of Police in so far as Public Order is concerned, the Commissioner reserves the right to refer the matter to the President.

Assuming the President, in exercise of the adaptation, confers powers and impose duties on the Governor (I have said he could not do this) and the Governor who would not go to the streets to carry out the duties of issuance of permits or regulations of public meetings personally, gives instructions to the police, but the Commissioner in pursuance of the proviso to Section 195(4) refers the matter to the President who through the Inspector General of Police countermands the order There would be chaos! This is not what the Constitution contemplates! One thing is certain therefore the ultimate control of the police under the Constitution is under one apex and that is the President.

The next provision of the Constitution to examine is Section 276 of the Constitution. The plaintiffs construe this section which for ease of reference reads –

“276-(1) Without prejudice to the generality of Section 274 of this Constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against –

(a) the former authority of the Federation as representative or trustee for the benefit of the Federation; or

(b) any former authority of a State as representative or trustee for the benefit of the State,

Shall on the date when this section comes into force and without further assurance than the provision hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.,”

as conferring in the State Governors all the former powers of the Military Administration.

To my mind this section cannot apply to the case in question. Section 276 deals generally with “property” succession. Right, privilege liability and obligation are in pursuance of this generic succession. This can only be so for the section is in fact subject to the provision of Section 274 of the Constitution which deals with existing law and which I have already considered.

The last point I would like to comment upon in this case is the doctrine of covering the field. The learned Chief Justice has in his judgment referred to the authorities which I accept are applicable. However, I take the view that when one considers this doctrine, the phrase “covering the field” means precisely what it says. Where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency. Where however, the legislation enacted by the state is the same as the one enacted by the Federal Government, where the two legislations are in pari materia I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period the Federal Legislation is in force. I will not say it is void. If for any reason the Federal legislation is repealed, it is my humble view that the State legislation, which is in abeyance, is revived and becomes operative until there is another Federal legislation that covers the field.

With all the foregoing I agree that the claims fail and they are dismissed. I abide by all the orders contained in the judgment of the chief Justice of Nigeria.

A. N. ANIAGOLU, J.S.C.: I have been privileged to read in draft the judgment of my learned brother, the Chief Justice of Nigeria, Fatayi-Williams, CJ., and I am in complete agreement with his reasoning and conclusion. I would only like to touch, by way of further comment, on two points argued before us and contained in the said judgment.

FIRSTLY, the argument of plaintiffs’ counsel that the Governor of a State is in all things, situations and circumstances, a successor to the old Military Governor of the Military Administrator and that he has, in all respects, stepped into the shoes of the old Military Governor or the Military Administrator, is not borne out by Section 276 of the Constitution on which they rely for their propositions. Sub-section 2 of Section 276 which has made “the President and the Government of the Federation” successors of the former authority of the Federation; and “Governor and Government of a State” to be successors of the former authority of a State, as stated in the provision of that sub-section is only “for the purposes of this section”, namely Section 276. Now, Section 276 clearly deals with succession to property and any rights, privileges, liabilities, and obligations appertaining thereto. Were the very wide propositions of plaintiffs’ counsel to be adhered to, the absurd situation would be reached in which the Governor of a State succeeding the Military Administrator (who was the last former authority of the State before 1st October, 1979) in all things, will succeed to the commandership of the local military forces – a situation which is not in accord with the intendment of the Constitution and particularly Sections 197, 198 and 199 thereof.

SECONDLY, as to the doctrine of “inconsistency” where the two Legislatures have passed identical legislations as discussed by Dixon, J., in Ex Parte Maclean (1930) 43 CLR. 472 at 483, the use of the word “inconsistent” would appear to me, with all due respect, to be inappropriate as the use of the word in those circumstances does violence to its meaning. I agree with the criticism of the chief Justice and would prefer to say that the law passed by the State House of Assembly must be declared irrelevant and, to that extent, unconstitutional, as not being compatible with, in the sense of its having no locus in the face of, the law passed by the National Assembly.

As I have already stated, I agree with the said judgment and subscribe to the declaration and the order which the Chief Justice has made.

---

SC.53/1981 (CONSOLIDATED)