Attorney -general Of The Federation & Ors V. C. O. Sode & Ors. (1990)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
The plaintiffs in the trial High Court, now respondents, took out a writ of summons as executors of the estate of Chief Samuel Oyekoya Oyelate Sode, (deceased), who was the owner of the property on the plot variously known as 132, Yakubu Gowon Street or Broad Street, Lagos. The property is a two storey building and the claim inter alia was as follows:
(i) “Possession of the ground floor business premises with appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd defendants.
(ii) N6,000.00 arrears of rent for the period between 1st day of August, 1979 and 31st day of July, 1980 from the 1st defendant to the plaintiffs.
(iii) N50,000.00 per annum against 2nd and 3rd defendants for use and occupation of the said premises with effect from 1st day of August 1980 until possession is given up.”
The writ further explained in the endorsement as follows:
“The 1st defendant was a yearly tenant of the plaintiffs while the 2nd and 3rd defendants are trespassers of plaintiff’s premises.”
“The annual rental value of the premises is about N50,000.00.”
In 1971, the street which was from the time it was constructed known as broad street, was renamed Yakubu Gowon street, it has reverted to the former name from 1975. By a deed of lease dated 15th day of June, 1971 between the deceased, Chief Sode, and a Lebanese by the name Adnan El’Fayad, the lessee (Fayad) was to hold the ground floor of 132 Broad Street for twenty-five years at the yearly rent of 33,000 and four years rent amounting to 312,000 was paid in advance. Mr. Fayad apparently took possession of this ground floor. Not long after Mr. Fayad was deported from Nigeria. The deed of lease, exhibit C, was tendered at the trial court. By a letter exhibit D, written by Messrs. T.A. Oyagbola, solicitors, to Messrs Gbenga Adenowo, solicitor for the deceased, it would appear that Adnan Ahmad Fayad assigned the remaining term of the lease to Messrs Jebs Limited. The letter written on 19th June, 1972 reads:
“Dear Sir,
NOTICE OF INTENTION TO ASSIGN LEASE OF NO.132, YAKUBU GOWON STREET,LAGOS
With reference to your letter dated 13th June, 1972 our clients, Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with clause 3(iii) of the lease agreement, has assigned the premises to Messrs Jebs Limited.
As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.
Yours faithfully,
(Sgd.) T.A. OYAGBOLA & CO.
SOLICITORS.”
The deed of lease, exhibit C in paragraph 3(iii) reads:
“(iii) That the tenants may assign, underlet the whole of the demised ground floor and part thereof during the said term on a formal notice to the landlord.”
Jebs Limited took possession of the ground floor and was running a restaurant there; he apparently had paid some rents on the property. At any rate by 1972 when exhibit D was written, the deceased raised no objection to the assignment of the lease to Jebs Ltd. not until 1979 when it was obvious that the Federal Military Government had, by forfeiture order acquired the unexpired lease from the company. Jebs Limited was apparently wholly owned by one J.H. Bassey, a deputy commissioner of police, and as such, a public officer who had been found guilty of misdeeds by an investigation panel. The Supreme Military Council in the exercise of the powers conferred by section 8 of the Investigation of Assets (Public Officers and other Persons) Decree 1968 [1968 No. 37], made Public Officers (Forfeiture of Assets) Order 1978 (L.N. 33 of 1978) with commencement date fixed as 14th July, 1977 but actually signed on 2nd July, 1978; this order of 1978 was further amended by legal notice No. 17 of 1979 still based on decree 10 of 1976 and decree No. 37 of 1968. Legal notice no. 17 of 1979 amended legal notice no. 33 of 1978 in part 1 thereof, paragraph 3 by substituting a new list of assets or Mr. J. H. Bassey to be forfeited. Included in this new list is an item under paragraph 3 subparagraph(s) which reads-
“(5) Unexpired term of the leasehold in respect of the ground floor of 132 Broad Street, Lagos, granted to Jebs Limited.”
To my mind, this amendment in legal notice no. 17 of 1979 was merely to avoid any doubt as to the assets to be forfeited by Mr. J.H. Bassey. The provisions in Public Officers (Special Provisions) Decree 1976, Public Officers (Forfeiture of Assets) Order 1978 and Investigation of Assets (Public Officers and other Persons) Decree would have sufficed to make forfeited all undeclared assets of Mr. Bassey, including JEBS LTD. as and when they are found. By the provisions of the decrees and consequent orders made on them, it would have made no difference to the situation of J.H.Bassey vis-a-vis his assets to be forfeited.
The Public Officers (Special Provisions) Decree 1976 provides for removal of public officers from office either because of old age, or for the reorganisation of public service; and if it was felt that a removal was necessary because a public officer has been found to have corruptly enriched himself by engaging in corrupt practices or has enriched any other person by some corrupt practices. The removal from office would entail dismissal or summary termination or the polite request to the officer to retire voluntarily.
The decree provided for investigation of assets and if any officer was found to have acquired more than he legitimately earned during his tenure as public officer, such excess assets were to be forfeited. (See section 3 of the decree 10 of 1976.)
The 1968 decree No. 37 provided for investigation of assets of public officers and other persons (whether public officers or not) and verification of such assets (see S.2 and S.3 thereof). It is a very exhaustive decree of verifying and searching and tracing of assets, and finally provided for forfeiture of excess or ill-gotten assets. The L.N. 33 of 1978 and L.N. 17 of 1979 ordering forfeiture of the assets deemed to be corruptly acquired by J.H. Bassey, a public officer, being a Deputy Commissioner of Police, were made by virtue of decree 10 of 1976 and decree No. 37 of 1968. Now, section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (i.e. 1968 No. 37) provides:
“12. The validity of any direction, notice or order given or made or of any other thing whatsoever done, as the case may be, under this decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of chapter III of the constitution of the Federation [1963] shall apply in relation to any matter arising out of this decree or out of any enactment or other law repealed by this decree.” (square brackets mine)
Decree No. 10 of 1976 [i.e. Public Officers (Special Provisions) Decree] is more explicit as to ouster purport than Decree 37 of 1968 in that by its S.6, it provides as follows:
“6 (1) For the purposes of this decree, the operation of the provisions of section 152 of the constitution of the federation and the corresponding provisions of the constitution of a state, which protect certain pension rights, is hereby excluded.
(2) The provision of any enactment, law or instrument (including the constitution of the federation and the constitution of a state) relating to the benefits to which this decree applies or relating to appointment, dismissal and disciplinary control of a public officer shall have effect subject to this decree.
(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the decree, the proceedings shall abate, be discharged and made void.
(4) Chapter III of the constitution of the federation is hereby suspended for the purpose of this decree and the question whether any provision thereof has been or is being or would be contravened by anything done in pursuance of this decree shall not be inquired into in any court of law.”
Since 17th June, 1972 when notice of sublease to Jebs Limited was given to the late testator, Mr. Sode, no angry finger was raised and things went on smoothly. During all this period, the original lease to Fayad was not dead, all that took place was the sublease of the remaining term to Jebs Limited. This silence on the part of the late testator is understandable because the deed of lease, exhibit C, in paragraph 3(iii) thereof permitted this. The executors of the estate of Mr. Sode started their skirmishes with the forfeiture decrees immediately they became aware of it. What is contained in the statement of defence of the 2nd and 3rd appellants in paragraphs 6, 7, 9, 10 and 11 is very illuminating:
“6. The defendants further aver that by virtue of the provisions of the enactment mentioned above, the 1st defendant took possession of the unexpired term in the property situate being and known as 132, Broad Street, Lagos then owned by JEBS LIMITED.
- The 1st defendant subsequently advertised the said property through their agents Messrs SHOTE DAWODU & CO., to the public at large for sale, thereof the 2nd defendants made an offer and which offer was accepted by the 1st defendant.
- Thereafter, the 1st defendant sold the property in question to the 2nd defendant and also executed a DEED OF TRANSFER dated 24th September, 1979 and which was registered at the Lagos State Land Registry dated 27th September, 1979. The deed of transfer vested in the 2nd defendant the unexpired part of the lease which was then vested in the Federal Government.
- The 2nd defendant was then put in possession by the 1st defendant and thereafter the 2nd defendant being the principal director of the 3rd defendant put the 3rd defendant into possession thereof.
- The 2nd and 3rd defendants contend that they have been in undisturbed possession since the transfer.
- As regards paragraphs 29 of the plaintiffs’ Statement of Claim, the defendants contend that the plaintiffs have received the ground rent for the period commencing from 1st August, 1979 to 31st July, 1980. The defendants further contend that the plaintiff has refused to accept the cheque payment of the period commencing from 1st August, 1980 to 31st July, 1981.”
The sublease to Jebs Limited was in 1972. Rents were being received by the deceased and later, after his death in 1977, by his executors. There was nothing in evidence that exhibit D, which reads:
“EXHIBIT ‘D’
T. ADE OYAGBOLA & CO. Office
BARRISTERS & SOLICITORS
OF THE SUPREME COURT OF
NIGERIA & NOTARIES PUBLIC
30 Ikorodu road,
Yaba,
Phone 47553
Postal P. O. Box 70, Mushin,
Lagos State.
19th June, 1972
Olugbenga Adenowo, Esq.,
Barrister & Solicitors,
47, Ojo Giwa Street,
Lagos.
Dear Sir,
NOTICE OF INTENTION TO ASSIGN LEASE OF
NO. 132 YAKUBU GOWON STREET, LAGOS
With reference to your letter dated 13th June, 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with clause 3(iii) of the lease agreement, has assigned the premises to Messrs Jebs Limited. As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.
Yours faithfully,
(Sgd.) T.A. OYAGBOLA & CO.
SOLICITORS.”
This was received by the executor of the estate of Sode or by Sode himself during his lifetime. By 1978, when it was obvious Mr. J. H. Bassey was in trouble with the Federal Military Government over the corruptly acquired assets including the ground floor of 132 Broad Street, Lagos. Notice to quit was served, not on 2nd and 3rd appellants but on Jebs Limited, a company already forfeited to the Federal Military Government. By 31st July, 1980, another notice to quit was served on Rachel Restaurants Ltd. “Cafeterea” referring to the 3rd appellant as tenant at will/trespasser. The whole exercise of the executors who are now respondents smacks of trying to sleep by closing one eye and attempting to see the goings on with the other. They were presumed in law to have seen not only the substantive laws i.e. Public Officer (Special Provisions) Decree 1976 (1976 No. 10) and Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No. 37) but also the consequent orders in legal notice No.33 of 1978 and Legal Notice No. 17 of 1979. The respondent decided to pursue a different route by applying Recovery of Premises Act (which totally has no relevance to this matter) and ignored the forfeiture decrees and orders in legal notices made pursuant to them. Great reliance was placed by the respondents, as plaintiffs, on alien Law of Western Nigeria and Land Instrument Registration Law also of former Western Nigeria and submitted that because the whole transaction between Fayad and Jebs Limited was not registered, it was null and void. The learned Judge dismissed this outright because according to him, by virtue of Lagos State (applicable laws) Edict 1968 (No.2 of 1968 Lagos State) the Laws of Western Nigeria has no application to Lagos State. He held as follows:
“It therefore stands to reason that a law or laws which had ceased to have effect in Lagos State as far back as 1968, cannot effect the transactions entered into and governed by the Laws of Lagos State in 1971. I therefore am of the opinion that both the aliens law as well as the Lands Instrument Registration Law of Western State does not affect exhibit ‘B’, counsel’s contention therefore appears to be wrong in law. In the view I have taken, exhibit ‘B’ need not comply with the provisions of any law other than the laws of Lagos State applicable to the transactions of that nature and in so far as there was no evidence of an infringement of the laws of Lagos State, I am of the opinion that the transaction is not vitiated by any law and so Fayad obtained a perfect title. In the circumstances, I do not think that the authorities to whom my attention was drawn by learned counsel to the plaintiffs were applicable.”
He held that the Federal Government validly took possession of the ground floor of 132 Broad Street by virtue of the decree and orders cited earlier in this judgment. What however was thus forfeited to the Federal Government was the unexpired term of the lease originally granted to Fayad and sublet to Jebs Limited. Learned trial Judge admirably saw clearly the issues and held:
“What the Federal Military Government possessed according to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, was the unexpired period of the terms in exhibit ‘B’ and this it purported to pass on to 2nd and 3rd defendants. Exhibits ‘E’ notified the plaintiffs of the sale of the premises in dispute by this documents, I think two options were open to the plaintiffs; they could either lodge a caveat against the sale or bid at the sale, neither of this was done, they folded their arms, had their eyes wide open, and the sale was conducted in my view according to law. 3rd defendant therefore in my opinion is a purchaser for value without notice.
In Rasaq Ademola Balogun v. Saminu Salami and 2 others (1963) 1 All N.L.R. 129, a family house which had been mortgaged by owners in fee-simple was sold at auction by order of Court, and the purchaser A.F. applied to the Registrar of Titles for first registration. The first defendant was in possession at the time of the auction, and shortly afterwards the family head sold a portion of the house to the second defendant, who went into possession. The family knew about the auction sale, they could have entered a caution under section 43 of the Registration of Titles Act or opposed the registration under section 10, and the second defendant could have done likewise, but none of them took any steps, and A.F. was given first registration. He later sold to the plaintiff, who registered and later sued the defendants for possession and an injunction.
The first defendant and third, both members of the family, pleaded that the plaintiffs could not have validly bought any legal interest in what was family property; and 2nd defendant pleaded that she had bought a portion and gone into possession. The trial Judge observed that A.F. and the plaintiff knew that the defendants were in possession but the plaintiff did not ask them what their interests were; he therefore dismissed the claim on the authority of Kabba v. Young, 10 W.A.C.A. 135 in the belief that the plaintiff’s legal estate under his land certificate was subject to section 52 of the Registration of Titles Act.”
He relied on the Supreme Court decision in the matter and concluded as follows:
“…I hold that by the combined effect of this decision, the provisions of section 149 of the evidence act as it relates to the Public Officers (Forfeiture of Assets)(Miscellaneous Provisions) Order 1979, the defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises. The plaintiffs having failed to establish their claims, the action is hereby dismissed.”
In the Court of Appeal, the grounds filed comprised-
(1) that the judgment was against weight of evidence, and
(2) that learned trial Judge erred in failing to give judgment as claimed by the plaintiff because the document relied upon exhibit C, the lease agreement between the testator Mr. Sode and Mr. Fayad not having been registered in accordance with S.14 Lands Registration Act Cap 99 Laws of the Federation of Nigeria 1958 (Vol. IV) rendered that agreement null and void.
The appellants (now respondents in this court) filed a brief without setting out issues for determination but adverted at length to the grounds of appeal. The second and third appellants now before this court filed a brief and took up the same issues indirectly with matters contained in the brief of appellants (now respondents). The whole matter, according to the respondents rested on exhibit C, the lease agreement and exhibit D letter notifying the testator of the sublease to Jebs Limited. Clever attempt was made to sidetrack the forfeiture decrees and orders made thereunder (supra). The Court of Appeal, set aside the judgment of the trial court in allowing the appeal and in doing so Nnaemeka-Agu, J.C.A. (as he then was) helped frame the issues from the grounds of appeal and arguments in the written briefs by saying in his lead judgment as follows:
“(i) whether the jurisdiction of the High Court was ousted by the decrees and orders and if the answer to the above is in the negative,
(ii) whether the lease to Adnan Fayad, exhibit C was void for want of Governor’s consent.
(iii) whether exhibit C was void for non-registration.
(iv) what interest if at all [there was any] was transferred to Jebs Limited by Fayad.
(v) whether exhibit M (which was the transfer to the Federal Military Government in Lands Registry) should be rectified.” (Square brackets mine for emphasis).
Learned Justice of the Court of Appeal in his judgment held that the “pith and marrow” of the argument of the appellants before the Court of Appeal was whether it was the company called Jebs Limited that was being forfeited or was it the leasehold in the ground floor of 132 Broad Street, Lagos. If the evidence indicated that Jebs Limited had no leasehold property in 132 Broad Street, the court was competent to say so and to hold there was jurisdiction to declare that the court’s right to entertain the action was not ousted. There was however ample evidence that forfeited ground floor was advertised on behalf of the Federal Military Government, the evidence was clear that Fayad (who was deported after exhibit C was made) had exercised his right to sublet and that Jebs Limited took the sublease for the unexpired terms, exhibit D. This exhibit, learned justice observed never proved any sublease conclusively as there was nothing from Fayad indicating his exercise of that right of sub-letting. Nnaemeka-Agu, J .C.A. (as he then was) went further to assert as follows:-
“It is observed that exh. D was on the face of it, a letter dated 19th June, 1972, written by a solicitor to Jebs Limited. There is nothing coming from Fayad or his agent or representative to show that he agreed to its contents. Curiously, it was captioned “Notice of Intention to Assign Lease” and went ahead to say that “Mr. Adnan Ahmad Fayad has assigned the premises to Messrs Jebs Limited.” In my view, this document coming from an agent of Jebs Limited is at best a self serving piece of evidence and therefore worthless for purposes of proving that Jebs Limited had the property in dispute assigned to him.
Worse still, there is no evidence anywhere to show that what was acquired by Jebs, if at all, was the eighteen years term which was sold to the 2nd and 3rd respondents. This state of the facts completely knocks the bottom out of any assertion that Jebs Limited acquired an eighteen years leasehold term over the property in dispute. Indeed, the only evidence before the court is that of P.W.1 to the effect that the appellant’s father objected to the proposed assignment between Fayad and Jebs Limited. From the pleadings in paragraphs 11 and 12 of the statement of claim, there is nothing to amount to positive admission that the assignment of the residue of the term was completed in spite of the objection from the appellants. But I must say that the pleadings in paragraphs 13 and 14 of the said statement of claim are sufficient to show that Jebs Limited went into possession of the premises in dispute. In that state of the facts, it appears to me that when the Federal Military Government made the orders No. 33 of 1978 and No. 17 of 1979 with respect to the “unexpired term of the lease in respect of the ground floor of 132 Broad Street, Lagos” the orders could not vest in the 1st respondent, legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the orders was to forfeit the leasehold interest of Mr. J .H. Bassey, per Jebs Limited, and not that of Chief Sode those orders would not have the effect of passing the title in the property in dispute for 18years to the 1st respondent. In keeping with the maxim nemo dat quod non habet, the 1st respondent had no leasehold term of 18years to sell to the 2nd and 3rd respondents. But it is my view that on the principle of de minimis, what the order succeeded in vesting on to 1st respondent was the possessory right of Jebs Limited as yearly tenants. That was what the 1st respondent could have sold to the 2nd and 3rd respondents. As the latter were in possession of the premises for which they paid rents up to 1983 they were yearly tenants within the meaning of the law. They cannot therefore be adjudged trespassers. But their tenancies would be determinable by notice and were duly determined by exhs. K1 – K3.”
As a result of the above, Court of Appeal held that the trial court as well as Court of Appeal had jurisdiction to hear or inquire into the matter because their jurisdiction was not ousted despite the decrees and orders made consequent upon them. He held no leasehold interest for the remaining eighteen years vested in the Federal Military Government and thus, the 1st appellant in this court, had nothing to vest in the 2nd and 3rd appellants because nemo dat quod non habet. The reason for this decision by the Court of Appeal lies in not seeking consent of the Governor because exhibit C was a document between a native (Nigerian) and non-native (an Arab). Secondly, so held the Court of Appeal, it is a document that ought to be registered and it was not registered. However, learned justice also held as follows:
“It is observed that these two issues were raised on the pleadings (see paragraph 9 of the statement of claim and paragraph 3 of the statement of defence of each defendant).
In spite of the above state of pleadings, no positive evidence was called by either side on the issues of Governor’s consent and registration. It has not been disputed that exh. C was ex facie not registered. This has been conceded by the respondents. It is equally clear that no Governor’s consent has been endorsed thereon. It is true that under s.10 of the Land Registration Act Cap. 99, it is only by endorsement that the consent of the Governor has been given can be proved. But where, as in the instant case, the instrument has not been registered, the question of the registrar being otherwise satisfied that such consent has been given does not arise, and, in any event has not been proved.”
Learned justice after making the above observation further held that as of the date exhibit C was made (15th June, 1971), there was no law applicable in Lagos State which prescribed that the consent of the Governor was necessary. But he went further and held that the instrument (i.e. exhibit C) was registrable and it was not registered and as such, the instrument is void and Federal Military Government had nothing to transfer to the 2nd and 3rd appellants. He held that because exhibit C was not registered, it was void and the transfer to 2nd and 3rd respondents was equally void.
The Court of Appeal unfortunately never adverted fully to the ouster provisions of Decree No. 10 of 1976 and Decree No. 37 of 1968.The former in section 6 and the latter in section 12 (quoted in full earlier in this judgment), clearly excluded jurisdiction of any court or tribunal looking into these forfeiture decrees. Section 12 of Decree No. 37 of 1968 is wide enough to exclude jurisdiction of the courts; S.6 of Decree No.10 of 1976 made it clearer. The Court of Appeal reversed the High Court’s decision and held that the Federal Military Government had, at best, yearly contract inherited from Jebs Limited.
On appeal to this court, the first appellant, Attorney-General of the Federation who represents the government, and 2nd and 3rd appellants, who got their right from 1st appellant based their grounds of appeal in the main on the applicability of S.14 Land Registration Act, which Court of Appeal held rendered exhibit C void.
The courts must be alert that their jurisdiction is not tampered with or diminished by mischievous construction. That is when the jurisdiction exists by statute and supported by the constitution. Is it not the constitution that is the fountain of all our laws Indeed, all laws, whether existing before the constitution and those that are made after the constitution has come into commencement, owe their legality to the constitution. But once in clear language and barring all ambiguities, a law which ousts the jurisdiction of the courts and tribunals from looking into validity of an executive act and all the protective provisions of the constitution as to fundamental rights are suspended as is done in military regimes, it is not the law to assume jurisdiction. Once a military regime comes in, whether by their being handed power by democratically elected government or through act of a coup d’etat and the effective governance is being exercised by such regime whether de facto or de jure effect must be given to that ouster. No military regime claims to respect laws inimical to its policy. Perhaps, I shall make the point clearer by asserting even though courts are not happy with ouster clauses in decrees and edicts, it should be borne in mind that a military regime will be an anomally if it decides to govern by the entrenched rights as contained in chapter III of 1963 constitution of the Federation or in chapter IV of the constitution of the Federal Republic of Nigeria 1979; infact the military came and suspended and modified those constitutions. To the military, the constitution is a veritable working document and no more, because once they promulgate a decree and that decree excludes the provisions of the constitution (even as suspended and modified by them), the decree has the superiority to the exclusion of the constitution and any other enactment on the subject matter of the decree (see Decree No. 28 of 1970). At the time material to the orders now in question, Decree 10 of 1976 and Decree No. 37 of 1968 clearly ousted the jurisdiction of the court in respect of any act done in the forfeiture of assets. It made irrelevant all the protective provisions of other laws and the constitution, and indeed this includes the constitution itself. It is for the reason of preventing courts from arrogating to themselves powers they never had that the constitution of 1979 itself provided a safeguard in s.6(6)(d). [See Mustapha v. Governor of Lagos State & Ors. (1987) 2 N.W.L.R. (Pt.58) 539. 541; Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C.124]. The most overwhelming part of the ouster of jurisdiction is that contained in section 6(3) and (4) of Public Officers (Special Provisions) Decree (No. 10 of 1976) earlier quoted in this judgment.
The pith of the order now being questioned by the respondents is that:
“No civil proceedings shall lie or be instituted in any court on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the decree, the proceedings shall abate, be discharged and made void.”
If the Court of Appeal had adverted to this provision, certainly it would not have embarked on finding out if there was registration of the deed or if the Governor’s consent was sought. The provisions of Land Registration Act, (Cap 99 Laws of the Federation of Nigeria 1958), Land Instrument Registration Act; Registration of Titles Act are irrelevant in the face of the overriding provisions in the ouster clauses in Decree No. 10 of 1976 and Decree 37 of 1968. The purport of the decrees is very clear, it was to divest persons of ill acquired assets and were not concerned with niceties of registration or consent of Governor or indeed the protection of human rights provisions of the constitution. When courts are faced with such situation, it is for the courts to interpret the laws accordingly that is to say, as words in decrees prescribe. The courts must interpret the laws as they are, including the decrees. The purport of ouster provisions in decrees is clear, that is, no court or tribunal should look into the matter the courts are so prevented from looking into. This is the peculiarity of the military regime, which make the constitution subjected to their decrees. Attorney-General of Lagos State v. Hon. Justice Dosunmu (1989) 3 N.W.L.R. (Pt. III) 552. The original source of jurisdiction is the constitution itself; but when a military regime by a decree promulgated ousts jurisdiction of courts or tribunals in any subject matter as provided by the constitution or any other law, the decree must be followed. It should be borne in mind that the principle of equity still exists. Who, assuming that exhibit C must be registered or consent of the Governor must be sought, is to act The person to ask for consent is the holder of the land instrument; he is also to register the instrument. The deceased as the holder of the right of occupancy voluntarily let out the ground floor of the property to Mr. Fayad. The agreement for letting contains the provision for subletting. He had the notice of the subletting and apparently received rents from the sublessee i.e. JEBS LTD., and on the death of the deceased, his executors also continued to receive such rents, it will be unconscionable of the executors to now run round and contend that no consent of the Governor was obtained or that the instrument, registrable was not registered. Solanke v. Abed & Anor. (1962) 1 All N.L.R. 230, 234.
For the above reasons, the Court of Appeal was in error to have brushed aside the clear ouster provisions of the decrees. I allow the appeal and set aside the decision of the Court of Appeal. My decision is that this case as initiated in the High Court was without jurisdiction and therefore it is struck out. I award N500.00 as the costs of this appeal and N300.00 as costs in the Court of appeal. If the costs awarded by the Court of Appeal i.e N1,000.00 has been paid, it should be refunded to the appellants.
SC.120/1987
