B. C. Onyuike v. Eastern State Interim Assets and Liabilities Agency (1974)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal against the judgment of Douglas, J., delivered in the Port Harcourt High Court on March 9. 1973. The judgment is sequel to a motion filed by the defendant/respondent in this appeal praying that the court lacked jurisdiction to entertain the suit on the ground that the action was not maintainable because it was a legislative act of the then Government of Eastern Nigeria that was being challenged.
The plaintiff’s claims in the Port Harcourt High Court are for:
“1. A declaration that the former Eastern Nigeria Edict The Detention (of Persons) Edict. 1966 otherwise known as Edict No.11 and all subsequent amendments thereof and the Eastern Nigeria Notice No. 1304 published thereunder are illegal and of no effect as they contravened Federal Republic of Nigeria-Decrees 1 and 3 of 1966 and Republican Constitution.
- A declaration that the seizure of the plaintiff.s properties in December 1966 under the orders of the then Military Governor of the then Eastern Nigeria the predecessor of the defendant is illegal. void and of no effect.
- A return to the plaintiff by the defendant of the under-mentioned anicles or their equivalent value:
Cash…… 2.086: 6: 10.
Consul Corsair Saloon
(Brand New Car) and
its key or its value . . .. . . 995 : – :
Compensation for:
Two 16mm small rolls of
cinema films at 10.000
each or ………………20.000: – :
One 35mm (large) roll of
cinema film at …………….25.000
each or …………………25.000: – :
Royalty paid on the 3
cinema films for 3
years………………………..10.000: -:
Two 16mm projectors at
25 each . .. .. .. .. .. .500 : ‘ :
Total……………………… 58.581 : 6:10d
All materials purported to be confiscated by then Eastern Nigeria Government by virtue of the aforesaid illegal Notice No. 1304.”
This motion to dismiss the plaintiff/appellant’s suit was brought by learned Senior State Counsel under O. 29. r. 1 of the former Eastern Nigeria High Court Rules which are still applicable in the Rivers State.
The motion is supported by an affidavit the relevant paragraphs of which read as follows- .
“3. That this Honourable Court has no jurisdiction to grant the plaintiff any of the reliefs sought in his writ of summons.
- That the Military Governor of Eastern Nigeria who made the Edicts and the Orders complained of was so duly appointed by the Federal Military Government.
- That Edict No. 11 of 1966 (published as Eastern Nigeria Gazette Notice No. 115 of 1966) as amended by Edict No. 32 of 1966 was concerned with the powers of detention of persons and confiscation of property which are matters in the Concurrent Legislative List.
- That the Orders of detention (published as Eastern Nigeria Gazette Notice No. 1302 of 1966) and of confiscation (published as Eastern Nigeria Gazette Notice No. 1304 of 1966) complained of were legislative acts of the said Military Governor duly made under Edict No. 11 (as amended by Edict No. 32) aforesaid.
- That both the Edicts and the Orders aforesaid were legislative acts duly and lawfully made by virtue of the provisions of Decree No. 1 of 1966 that, subject to section 3(2) of Decree No. 1 of 1966 and the Constitution of the Federation of Nigeria, the Military Governor of a State or Region is given power to legislate to preserve peace, order and good government of the State or Region of which such a Military Governor is in charge.
- That there is no inconsistency between the Edicts aforesaid and any Decree of the Federal Military Government.
- That by section 3(6) of Decree No. 1 of 1966 the question whether an Edict touching a matter included in the Concurrent Legislative List was made with the consent required by section 3(2) of Decree No.1 of 1966 cannot be inquired into by any Court of Law.
- That it was the opinion of the then Military Governor that the properties so confiscated were held for the purpose of endangering the security, peace, order and good government of the State.
- That Edict No. 11 of 1966 and section 1(2)(b) of Decree No. 28 of 1970 deprive Law Courts of the Federation of the power to inquire into the validity of any Decree or Edict promulgated by the Federal Military Government or a Military Governor.”
Mr. Oyero, learned counsel for the appellant, sought and was granted permission to argue the following eight grounds of appeal:
“(1) The learned trial judge erred in law when. he held that the Detention (of persons) Edict, 1966 otherwise known as Edict No. 11 of the former Eastern Nigeria and all subsequent amendments thereof and the Eastern Nigeria Notice No. 1304 published thereunder are valid.
(2) The learned trial judge erred in law when he held that the Detention (of Persons) Edict, 1966 of the former Eastern Nigeria otherwise known as Edict No. 11 is not inconsistent with Federal Republic of Nigeria Decrees 1 and 3 of 1966.
(3) The learned trial judge erred in law when he held that the Detention (of Persons) Edict 1966 of the former Eastern Nigeria otherwise known as Edict No. 11 and all subsequent amendments thereto and Notices made thereunder are not inconsistent with section 31 subsection 1 of the Nigerian Constitution.
(4) The learned trial judge misdirected himself and erred in law when he held that if a Military Government has power to make laws the Courts cannot go behind Edicts to discover whether particular Edicts are valid.
(5) the learned trial judge erred in law when he held that the Government of the former Eastern Region was right in confiscating the property of the plaintiff if it decided that the property might be used to further criminal acts of the plaintiff, which criminal acts were unspecified.
(6) The learned trial judge misdirected himself and erred in law when he held that there was a difference between confiscating the property of a law abiding person and that of a person held to be a criminal and that since Edict 11 stated that he had committed a crime he (the plaintift) was a criminal when the plaintiff had not been charged, tried and adjudged a criminal by any court of law and contrary to s. 22 of the Constitution.
(7) The learned trial judge erred in law in holding by implicating that the plaintiff and all other persons detained by the Ojukwu regime during the recent civil disturbances and antecendent crisis were criminals when they had not been tried and convicted by any court of law as provided by s. 22 of the Constitution.
(8) The learned trial judge erred in law when he ignored the point made on behalf of the plaintiff that he was not given any hearing before his property was seized in defiance of the laws of Natural Justice.”
With respect to the fourth ground which learned counsel argued first, he submitted that there was no authority for the decision of the learned trial judge that, if a Military Governor has power to make laws, the comts cannot go behind Edicts to discover whether particular Edicts are valid He referred to the Federal Military Government (Supremacy) Decree No. 28, 1970 and submitted that the words in brackets in section 1 (2)(b) give the courts power to look into the question whether an Edict is inconsistent with the provision of a Decree under section 3(4) of the Constitution (Suspension and Modification) Decree No.1 of 1966. We here set out the provision of section 1(2)(b) of Decree No. 28 as follows:
“1 (2) It is hereby declared also that
(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation, any decision, whether made before or after the commencement of this Decree, by any Court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of the Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of any effect whatsoever as from the date of the making thereof.”
To be read along with it is this provision of section 3(4) of Decree No.1,1966:
“3(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, 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 as mentioned in paragraph (i) or (ii) above shall prevail and the Regional law shall, to the extent of the inconsistency, be void.”
We are in agreement with learned counsel that the courts are competent to declare an Edict invalid on the ground of its inconsistency with a Decree and that we so expressly held in the Council of the University of lbadan v. Adamolekun (1967) 1 All N.L.R. 213, at pp. 223-4:
“Dr. Ajayi (Attorney-General, Western State) has submitted that even if this section is void the Supreme Court cannot make any pronouncement that
“it is void For this proposition Dr. Ajayi sought the aid of section 6 of Decree No. 1 of 1966 which states that ‘no question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria’. We feel unable to accept this submission. This submission creates the situation that the Supreme Court cannot decide on an application before it whether an appeal lies to the Court or not and whether or not the Court can entertain the application before it In effect the Court is reduced to the position that if an Edict is itself inconsistent with a Decree or with the Decree No. 1 of 1966 the Court cannot make a pronouncement This, in our view, will not be giving effect to section 3(4) of Decree No.1 of 1966 and it becomes a dead letter. We feel that Dr. Ajayi’s reference to section 6 of the Decree is inept and the flaw in Dr. Ajayi’s argument lies in the fact that he has read section 6 in isolation. Reading the Decree as a whole we are not in doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the courts from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one.”
And we held further:
“It is significant that in Section 3 of Decree No.1 of 1966 there is express provision in subsection (6) (quoted already) that the courts may not enquire whether the Military Governor of a Region had obtained the consent of the Federal Military Government before legislating on a matter in the Concurrent Legislative List; if nothing done by an Edict could be enquired into by a court of law, it would not have been necessary to make that express provision in subsection (6) of section 3. We think section 6 must be read together with section 3 of the Decree No. 1 of 1966, and the right view in our opinion is that the courts can enquire whether an Edict is void to any extent under section 3(4) of that Decree (no. 1 of 1966) which is the Decree authorising the making of Edicts within certain confined limits, and it is desirable for the legal advisers of a Military Governor to bear those limits in mind when drafting Edicts. ”
Learned counsel next argued Grounds 2 and 3 together, and submitted that the Detention (of Persons) Edict, 1966 in inconsistent with Decree No.1, 1966, and also that the same Edict and all subsequent amendments thereof are inconsistent with section 31 of the Constitution of the Federation, 1963. We think that there is force in this argument because section 3(2) of Decree No. 1 of 1966 makes a Military Governor’s legislative powers subject to a Federal law with respect to the same subject-matter and also subject to the Constitution of the Federation. Section 3(2) of Decree No.1, 1966 is in these words:
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.”
It is equally clear that section 3(4) makes a State law liable to be inconsistent with a Federal law and void to the extent of any such inconsistency. We have set out above the provision of section 3(4) of Decree No.1, 1966.
Learned counsel for the appellant further submitted that the Detention (of Persons) Edict No. 11 of 1966 which was made applicable throughout the then Eastern Provinces of Nigeria and its amendment, the Detention (of Persons) Amendment Edict No. 32 of 1966 are both void to the extent to which they are inconsistent with section 31 (1) of the Federal Constitution and Decree No.3 of 1966. Edict No. 11 empowered the Military Governor to detain certain classes of persons within its area of jurisdiction on the ground of State security and Edict No. 32 empowered the Military Governor to confiscate the detainee’s property, including money, deemed to be held for the furtherance of the detainee’s illegal purpose. Learned counsel pointed out that “confiscation” as used in the Edict means a forcible sequestration of property (See Stroud’s Judicial Dictionary, Vol. 1, 3rd Edn., p. 576), whereas acquisition of land connotes the taking of land, not by voluntary agreement, but by force. The two Edicts are accordingly inconsistent with section 31(3)(b) which contemplates the acquisition of property only in consequence of a civil process or a conviction of crime in a court of law. We think that the word “acquisition” as employed in section 31 of the Constitution of the Federation 1963 is used in the widest possible sense and covers all fonns of taking possession of property. The Edicts in question do not come within the “general law” spoken of in section 31 (3)(b), as indeed the learned trial judge admitted by saying that they have a restricted application to only the class of persons considered by the Military Governor to constitute a danger to security of the State. We think, therefore, that both Edicts are inconsistent with the Constitution of the Federation, 1963 since they amount to legislative judgments which assume that the plaintiff/appellant was already a criminal without having ever been duly convicted by due process in a court of law. The learned trial judge was, wrong when he held:
”The property of the person so detained was only confiscated where in the opinion of the Military Governor it is held for furthering the aims of that person. In other words, the Edict No. 11 of 1966 is not an outright legislature whereby the property of any individual in the State who is arrested is confiscated. In my view it is not inconsistent with section 31 (1) of the Constitution of 1963. That section contemplates a situation where property of an individual in the State is acquired compulsorily by the State for its benefit or otherwise and not paid for or adequately compensated for. There is a vast difference between a forfeiture clause emanating from crime committed by the individual of the State and property acquired from a law abiding citizen by the State for State purpose.”
Learned Counsel’s next submission is that Edicts 11 and 32 are in conflict with the State Security (Detention of Persons) Decree No.3 of 1966 which was made in respect of certain specified persons whose names appeared in the Schedule to that Decree. The learned trial judge himself agreed when he held: “Unlike Edict 11 it could not be enforced against anyone except those specifically named therein.” But the learned trial judge’s citation from Thomas O’ Sullivan v. Noarlunga Meal Ltd. & anor. (1957) A.C. 1, at p. 24 misses the point on the issue of inconsistency of a State law with a Federal law; and equally wrong is the learned trial judge’s inference: “It is clear from the Decree No.3 that it was not intended by the Federal Military Government that it should be the paramount legislature. The question of inconsistency between that Decree and Edict No. 11 therefore did not arise.” It is necessary to add that Decree No. 3 no doubt suspends Part ill of the Constitution (which deals with Fundamental Human Rights) only in respect of the detention of persons; it does not do so in respect of confiscation of property, which is the only subject of complaint by the plaintiff/appellant in the present case. We need not reiterate our view that Edicts 11 and 32 are accordingly inconsistent with Decree No.3 of 1966.
Under Grounds 5, 6 and 7 which Mr. Oyero argued together, his main complaint was that the plaintiff/appellant was throughout treated as if he were a convicted criminal, contrary to section 22 of the Constitution of the Federation. Apart from non-compliance with several of the subsections of section 22, the appellant was no where shown to have been specifically charged with an offence is as required by section 22(10).Edicts 11 and 32 are an assumption ofthe judicial powers of the courts in that it is assumed by the Military Governor that an individual could be regarded as a criminal without due process of law. Only the Supreme Military Council could do that by a Decree to that effect The doctrine of Separation of Powers is still part of our Constitution; for example, the Legislative Lists are still preserved, and the legislative powers are still kept distinct from the judicial powers. Decree No. 1 of 1966 has virtually left the Judiciary virtually untouched. Learned counsel, therefore, submitted that even the judgment under appeal is a legislative judgment or judicial legislation.
As regards Ground 8, Mr. Oyero contended that the learned trial judge should not have ignored the argument submitted on behalf of the plaintiff that he had not been given any hearing before his property was seized in defiance of the laws of natural justice. Cited in support of his submission is Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306 where we stressed that in the interest of natural justice an accused person is entitled to be given an opportunity to defend himself. We say no more than that Edicts 11 and 32 constitute a denial of the principle of natural justice to the appellant.
Finally, learned counsel for the appellant submitted under Ground 1 that the learned trial judge erred in law when he held that Edicts 11 and 32 and the orders made thereunder are valid The order made under Edict 32 by which the appellant’s property was confiscated must necessarily stand or fall with the enabling Edict, and the same goes for the order made under Edict 11. Since both Edicts have been shown to be invalid, the order confiscating appellant’s property is null and void and of no effect in complete agreement with this submission.
Mr. Etuk, learned counsel for the respondent, made the submission that the Port Harcourt High Court has no jurisdiction because appellant’s property was confiscated by due process of law, by which counsel meant that the confiscation was in accordance with Edicts 11 and 32 which the Military Governor had power to make for the peace, order and good government of the former Eastern Nigeria. Mr. Etuk would appear to have missed the main point of appeal.
In the light of the reasons we have given above, we allow the appeal and set aside the judgment of Douglas, J., in Suit No. PHC/56.72 delivered on March 9, 1973, including the order as to costs. We hereby remit the case to another judge of the High Court in Port Harcourt for trial of the action. The appellant is hereby awarded N87 as costs in the lower court and N140 as costs in this Court.
Other Citation: (1974) LCN/1866(SC)
