Aderele Adejumo & Anor . v. Colonel Mobolaji Johnson (1974)
LawGlobal-Hub Lead Judgment Report
G. S. SOWEMIMO, J.S.C
In this appeal the appellants have sought to limit the area and extent of the provisions of Decree No. 28 of 1970 titled “Federal Military Government (Competency and Enforcement of Powers) Decree 1970.”
The details about the application for certiorari and the order nisi made therein are not relevant. After the order nisi was granted the respondent was served with necessary papers. The respondent filed a motion by way of demurrer under Order 28 Rule 1 of the former Supreme Court (Civil Procedure) Rules Cap. 211 in Vol. X of the Laws of Nigeria (1948). The motion was upheld by the High Court of Lagos State (George J.). Against that decision, the appellants filed two grounds of appeal which thus read:
“1. That the learned trial judge erred in law in entertaining a motion brought under Order 28 of the High Court of Lagos (Civil Procedure Rules) when the applicants in the motion appealed from, had themselves put facts in issue in the main application and after hearing date of the said main application had been fixed and hearing actually Commenced.
- That the learned trial judge erred in law in holding that any order he makes should be null and void because of the provisions of Decree No. 28 of 1970.”
Mr. A.L.A.L. Balogun, learned Counsel for the appellants, did not argue ground 1. He concentrated all his arguments on ground 2 It was contended by him that since the orders L.S.L.N. 13 of 1969 and L.S.L.N. 14 of 1969 which were sought to be quashed, were made by the Military Governor of Lagos State, such orders, at most, could assume the characteristic of edicts. If that contention is accepted, learned Counsel further argued, that it is open to the High Court to test whether such edicts conflict with the provisions of a decree of the Constitution of the Federation (as amended up till 1969), and that the test would have shown that the two orders conflict with Section 31 of the Constitution. On that basis, therefore, the learned trial judge was wrong in his judgment in refusing to entertain or consider the application for certiorari.
The arguments addressed to us on appeal were never canvassed before the learned trial judge and therefore his consideration and conclusion were not based on these grounds, and this court did not have the benefit of the view of the lower court
In the lower court, the contention of the learned Counsel for the appellants now before us, was that the Military Governor of the Lagos State had no jurisdiction to issue the orders complained of, and therefore such orders do not come within the provisions of Decree No. 28 of 1970. On the other hand, the learned State Counsel argued, on behalf of the respondent, that the orders complained of were properly made and being valid cannot be challenged in any court of law under Decree No. 28 of 1970.
The learned trial judge had this to say on the issue raised before him about the application of Decree No. 28 of 1970:
“Now Decree No. 28 of 1970 as stated above specifically refers to any decision in the exercise or purported exercise of any powers under any enactment. I cannot therefore say that under the circumstances I can proceed to entertain the action under the inherent jurisdiction such jurisdiction in Nigeria being a second derivative of an enactment Even if the inherent jurisdiction of English Courts is based on the English Common Law, that law is applicable to Lagos State by the provision of an Enactment.
This case is almost identical with Suit No. LD/440/69 Hope Halliman v. Colonel Mobolaji O. Johnson except that the claim was for a declaration while in the instant case it is one for an order of certiorari. In the aforementioned case Taylor C.J. said:
“In short the challenge is that the Lagos State Government is incompetent to make an instrument which does not fall within the provisions of Decree No. 37 of 1968 and that is one of the matters which falls within Decree No. 28 1970.”
Chief Williams has observed with reference to the remarks of Taylor C.J. that an application “for an Order of Certiorari is not a challenge to the competence of the Government of Lagos State, but an application to have Instruments referred to above, on the ground that they are null and void. In other words, he contended that the Governor of Lagos State has in Law “not done anything” vis-a-vis the Instruments.
But if I act under the provision of the High Court of Lagos Act and grant Order in the substantive action, I would be acting under the provision of an act and the order would be null and void.
This deduction from an order (if made) would make the order null and void.
In short it would be a fruitless exercise to proceed with the action.”
As we had stated earlier the attack on the judgment was based on a different ground from that canvassed in the lower Court, Here before us learned Counsel raised the point that the forfeiture of properties as contained in the two orders made by the Military Governor of the Lagos State, that is L.S.L.N. 13 and 14 were not made in compliance with the provisions of Section 31 of the Constitution of the Federation of Nigeria and because of this, Section 1 of the Constitution applies. That Section as amended and in force in July 1969 and thereafter reads:
“1. The constitution shall have the force of law throughout Nigeria and . . . . . . . . . . . . . . . . . if any other law including the constitution of a State, is inconsistent with the constitution, this constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
PROVIDED that the constitution shall not prevail over a Decree, and nothing in this constitution shall render any provision of a Decree void to any extent what-so-ever.”
Learned Counsel therefore submitted that Decree No. 28 of 1970 does not preclude the courts from testing or enquiring as whether an edict conflicts or that it is inconsistent with the constitution. We are of the view that such an exercise, if embarked upon, will result in a court decision declaring on the validity or otherwise of a Decree or Edict. Any such decision is a nullity under Decree No. 28 of 1970. This shows that whilst the argument may appear attractive it is in effect fallacious and with respect unsound as will be shown presently.Firstly, L.S.L.N.. 13 and 14 are instruments made by the Military Governor of Lagos State by virtue of powers conferred on him by Section 8(30 of Decree No. 37 of 1968. Secondly, by virtue of Section 1 (3) (b) of Decree No. 38 of 1970 the two instruments, relevant to this appeal, having been made under an Edict have by implication, all the protection afforded to an Edict under the provisions of Decree No. 28 of 1970.
The Courts are precluded from making a decision to declare or an inquiry to declare on the validity or otherwise of a Decree or Edict, within the con of the definition in that Decree. Such a decision shall be null and void.
This very question came up for consideration in the case of Chief Adebiyi Adejwno v. H.E.Col. Mobolaji O. Johnson, Military Governor of Lagos State (1972) 3SC, 47. The point now canvassed before us was raised in that appeal. As a matter of fact the instrument in question in that appeal, L.S.L.N. 13 of 1969, is one of the two orders in this appeal. This court, sitting as a Full Court, resolved the matter thus at page 57:
“We are not in any doubt as to the meaning and effect of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (No. 28 of 1970). We think that chiefly speaking that Decree consists of two parts or divisions; the first part including the preamble ends at section 1(1). That section confirms the preamble and gives it legislative effect. The second part consists of section 1(2) to the end of Decree and that part is designed to ensure that “any decision . . . . . . . . by any court of law . . . . . . . . which has purported to declare or shall hereafter purport to declare the invalidity of any decree or of any Edict . . . . . . .. shall be null and void. . . . . . . .” Learned counsel for the appellant had referred us to the defamation of “Decree” in section 1(3) (b) of Decree No. 28 of 1970 and has argued that although the respondent’s Order No. 13 of 1969 may be an instrument within that definition yet it could not get the protection which the Decree generally guarantees unless it is an Order made “by or under such Decree or Edict”. The argument clearly overlooks quite a lot of other matters which must be considered alongside with it. The first and perhaps the most important of these is implicit in the Decree No. 28 of 1970 itself. The first part of the Decree, as we have already observed, establishes and otherwise confirms the already existing ouster of the jurisdiction of courts of law in respect of a Decree or an Edict or other cognate acts in law comprehended by the definition section, that is to say section 1(3). With respect to the second part of Decree No. 28 of 1970 even if it be arguable and indeed argued that that part assumes the possibility of a court assuming jurisdiction with respect to one or the other of the matters envisaged on the ground of manifest excess or incompetence or other type of invalidity (and we make no pronouncement on “this point), that part declares (and this is the word used and presumably deliberately so used) any such pronouncement in exercise of such assumed jurisdiction and having the tendencies therein described to be null and void.
“Clearly the result of all this exercise is that we cannot hear this appeal. The judgment of the High Court, Lagos was given before the promulgation of Decree No. 28 of 1970 and if it had pronounced against the validity of competence of the respondent’s Order No. 13 of 1969 we entertain no doubt that it would by virtue of the second division of Decree No. 28 of 1970 by null and void. In fact the judgment did not so pronounce and indeed it held that the relief sought could not be granted by the Court. By virtue of the provisions of Decree No. 28 of 1970 one can only attack an Edict if it is inconsistent with a Decree and as by virtue of Section 1(3) of Decree No. 28 of 1970 an instrument made by or under an Edict is given the same protection as the Edict under which the instrument is made, the same principle must apply to the instrument as would apply to the Edict itself.
Once the instrument as here is stated to have been made under an Edict, it seems to us that by virtue of the provisions of Decree No. 28 of 1970 one cannot attack it in any way other than one could attack the Edict itself. Thus, if we could assume jurisdiction in this matter our judgment insofar as it possessed the tendencies described in Decree No. 28 of 1970 would be null and void. This Court, and indeed any other court, should not and would not exercise in the circumstances.”
We respectfully adopt the reasoning and conclusion in the above appeal in our consideration of the appeal before us and dismiss the appeal. The order of this court is that the appeal in this case be dismissed and the judgment of the lower Court upheld. The respondent will be entitled to the costs of this appeal which we assess at N80.00. This shall be the judgment of this Court.
Other Citation: (1974) LCN/1920(SC)
