Alhaji D.s. Adegbenro V. A.g Federation & Ors (1962)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F

The plaintiff has filed a Statement of Claim to the following effect:

That the Government of the Western Region appointed him Premier on the 21st May, after removing Chief Akintola from that office under Section 33(10) of the constitution of the Region; that the defendants maintain that those acts of the Governor are unconstitutional and that from that day there was no duly constituted Government in the Region; that the Governor has also appointed Ministers and Parliamentary Secretaries on the plaintiff’s recommendation; that on the 25th May he tried to have a vote of confidence in the Legislative Houses but owing to unforeseen disturbances the meeting in the House of Assembly broke up in confusion; that the Federal Parlia-ment passed a resolution purporting to be under Section 65 of the Constitution of the Federation declaring a state of public emergency, the resolution to be in force until the end of 1962; that he will contend at the trial that there were not sufficient grounds for that declaration and that the resolution was passed mala fide and was invalid therefore; that the Governor-General-in -Council purporting to act under the Emergency Powers Act, 1961, has made various Emergency Powers Regulations, (which are specified) under a Section of which he, the plaintiff, has been served with a restriction order; that he will contend at the trial that the Emergency Powers Act and the Regulations made thereunder are ultra vires, unconstitutional etc. for these reasons:

1. The Emergency Powers Act, 1961, is ultra vires, unconstitutional and invalid in that it purports to provide for the maintenance of peace, order and good government during a state of emergency but in fact deals with matters included in the Legislative List, to wit the matters designated in item 12 of the Exclusive Legislative List and the matters designated in item 18 of the Concurrent Legislative List.

2. The said Emergency Powers Act, 1961, purports to delegate or abdicate the powers vested by the Constitution of the Federation in Parliament to the Governor-General-in-Council and the said Act also purports to authorise the Governor-General-in-Council to delegate or abdicate those powers to the Administrator.

3. The Provisions of the following regulations purport to alter the Constitution of Western Nigeria contrary to Section 5 of the Constitution of the Federation and Section 32 of the Constitution of Western Nigeria:

Regulations 4, 5, 6(2) and 7 of the Emergency Powers (General) Regulations, 1962.”

The Statement of Claim goes on to allege that the second defendant, purporting to act under the Regulations, has appointed the third defendant as Administrator; that the plaintiff will contend at the trial that the Regulations in so far as they derogate from Sections 17, 20, 21 or 27 of the Constitution of the Federation, and the restriction order on him and those on the other Ministers of Western Nigeria were and are not reasonably justifiable for dealing with the situation that existed when Parliament passed its resolution or that has existed since; and that the third defendant intends to exercise and has been exercising the powers vested in him by the regulations:

Whereupon the plaintiff claims –

(1) a declaration that

(a) the Emergency Powers Act, 1961, is ultra vires the powers of Parliament, unconstitutional and invalid;

(b) all the Regulations made under the said Emergency Powers Act, 1961, are void and of no effect;

(c) Regulations 4, 5, 6 and 7 of the Emergency Powers (General) Regulations, 1962 L.N. 54 of 1962 are unconstitutional, invalid and of no effect;

(d) the Emergency Powers (Detention of Persons) Regulations, 1962, are altogether void and of no effect;