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

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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;

(e) the plaintiff is the lawfully appointed Premier of Western Nigeria and there is and has at all material times been a duly constituted Government in that Region;

(f) the Emergency Powers (General) Regulations, 1962, are void insofar as they purport to suspend the offices of the plaintiff as Premier, member of the Executive Council and of the House of Assembly to vest the right to exercise the executive authority of the Region in anyone other than the Governor and officer subordinate to him.

(2) an injunction restraining the 3rd defendant from exercising the powers vested in him as Administrator or giving effect or further giving effect to any order or direction made or given by him in purported exercise of powers vested in him by any of the regulations which are or may be held to be void or ultra vires.

Those claims are to be decided after hearing the action. For the moment the Court has had to consider the plaintiffs application for an interlocutory injunction restraining the third defendant from exercising the powers vested in him as Administrator or giving effect to any direction or order of his under the Emergency Powers (General) Regulations, 1962, and the Emergency Powers (Restriction Orders) Regulations, 1962, pending the determination of the action.

There is an affidavit by the plaintiff in support of his application; briefly, it states that he has been a member of the Western House of Assembly; that he was, on 21st May, 1962, appointed Premier and sworn in, and that the Governor has also appointed Ministers on his advice; that he presided over the first Executive Council meeting on the 24th May; that when the House of Assembly met at 9 a.m. on the 28th May the ex-Premier’s sup-porters and the opposition members caused violent disorder and the Police intervened and dispersed the members with tear gas, but the supporters of the plaintiff’s Government did nothing to contribute to the disorder; that when the House re-assembled at about 11.40 a.m. the disorder was repeated and the Police intervened in like fashion as before, but his supporters took no part in the disorder; that he continued his duties as Premier and had a meeting at his house with his Ministers on water supply and roads on the 28th; that on the 29th he heard the broadcast of Parliament’s resolution, which was passed without consulting him or his Ministers; that in the evening he was served with a restriction order; that – and here I quote paragraph 8 of the affidavit –

“To the best of my knowledge and belief there has at no material time been any form of public disturbance of civil commotion in Western Nigeria save and except for the incidents herein before referred to in the House of Assembly. From the time of my appointment the only incident reported to me by the police was an occasion when Chief Akintola had broken through the door of the Premier’s Office. Although the Commissioner of Police had access to me at all times he made no suggestion that he anticipated civil commotion or that public tranquility was threatened in any way.”

And the final paragraph is that he has not been removed from Office by the Governor but cannot discharge his duties as Premier so long as he is restricted to three miles from the township of Oshogbo.

Arguing the Motion for the interlocutory injunction Mr. Dingle foot, for the applicant, submitted that the steps taken by the Federal Parliament to declare a state of public emergency are not authorised by the Constitution and all action following such declaration is invalid; the appointment of an Administrator, he submitted, is an unlawful usurpation of authority. If the intention of the Constitution is to reserve to the Federal Parliament the power to usurp the authority of the Regional Government in case of emergency, it was submitted, the constitution would say so in explicit language as did the Constitution of India.

Mr. Foot put his submissions under five heads. Under the first head, he referred to Section 5(1) of the Constitution of the Federation which states:

“Subject to the provisions of this Constitution and the Nigeria In-dependence Act, 1960, the constitution of each Region shall have the force of law throughout that Region and if any other law is inconsistent with that Constitution, the provisions of that Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

This, he argued, rendered void any law passed for the Western Region by the Federal Government, and in this regard all the Emergency Regulations passed are invalid; also that section 32 of the constitution of the Western Region provides for a Governor who is to exercise the executive authority in the name of the Queen, and any attempt to deprive the Region of its Governor, as was done in this matter, is an attempt to override the provisions of the Constitution.

Arguing the 2nd head of his submission, Mr. Dingle Foot submitted that Section 3 of the Emergency Powers Act, 1961, gives the Governor-General unusual and unfettered power, much wider than the Parliament itself possesses.

The third submission made is that there must have been a period of emergency before Parliament can invoke power under Section 65 of the Constitution. Matters outside the Legislative lists only, it was argued, can be dealt with by Emergency Regulations. It was submitted that the Emergency Powers Act, 1961, is ultra vires Federal Parliament and is invalid, and it offends against the provisions relating to the provisions of human rights in the Constitution.

Under the fourth head, it was submitted that the declaration of Public emergency was not a proper or valid discretion of what was vested in Parliament. It was stated that th

Other Citation: (1962) LCN/0986(SC)