Chief Denis C. Osadebay V. The Attorney-general Of Bendel State (1991)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N. 

The plaintiff is a renowned public officer and from 1964 to 1966 was the Premier of the then Mid-Western Nigeria, now Bendel State. In January, 1966 the Military overthrew the Federal and Regional Governments and established a Military Regime in which a Military Governor was appointed to administer the Mid-Western Nigeria and to make laws for the peace, order and good government of the Region in accordance with the provisions of the Constitution (Suspension and Modification) Decree 1966.

In June 1966, the National Military Government enacted the Public Officers (Investigation of Assets) Decree, 1966 which inter alia under section 5 empowered the Military Governor of a Region to appoint a tribunal of inquiry to enquire whether or not specified public officers had corruptly or improperly enriched themselves or any person by virtue of their offices or by abuse of their offices. The Decree further empowered the Military Governor to forfeit to the State where the tribunal found a public officer had acquired assets for himself or in the name of any other person in the manner aforestated.

In exercise of the powers under the Decree, the Military Governor of Mid-Western Nigeria enacted Public Officers (Tribunal of Inquiry) Edict No. 6 of 1967 as amended by the Public Officers (Tribunal of Inquiry)(Amendment) Edict No. 7 of 1968 and the Public Officers (Tribunal of Inquiry) (Amendment) (No.2) Edict No.12 of 1968 wherein the Tribunal of Enquiry, known as Justice Begho Tribunal, was established to investigate the assets of the persons named therein, including the Plaintiff and to ascertain the extent to which such persons had corruptly enriched themselves or any other persons.

The Tribunal held the inquiry and submitted its Report dated 5th February, 1968 to the Military Governor. In respect of the plaintiff, the Tribunal found that:

(1) from his bank accounts, he had corruptly or improperly enriched himself by virtue of and in abuse of his office in the sum of 72,198 pounds; and

(2) he had an unbanked illgotten gain of 32,000.00 pounds

which the Tribunal recommended that he be made to disgorge the two amounts. The trial court found that the total amount the Tribunal had recommended the plaintiff should refund was 104,198 pounds, which he had corruptly acquired. After having considered the Report, the Mid-Western

Government accepted the Tribunal’s recommendations and each public officer was given the choice to refund his ill-gotten gains within a reasonable time or to accept the forfeiture of specified real properties belonging to him or to face the ignominy of being declared a public debtor.

It is pertinent to refer to the Investigation of Assets (Public Officers and Other Persons) Decree No. 37 of 1968 promulgated on 29th July 1968. In section 14 and the Schedule 2 to it, the Decree repealed aforesaid Decree No. 51 of 1966. Edict No. 6 of 1967, No. 7 of 1968 and No. 37 of 1968 and declared in section 14(2) as follows:

“(2) It is hereby declared that-

(a) the repeal of any enactment or law by this Decree shall not affect any order, notice or other document made or thing whatsoever done under the provisions of any enactment or law hereby repealed, and every such order, notice or other document or thing so far as it is subsisting or in force at the time of the repeal shall continue or have effect by virtue of this Decree;

(b) any tribunal of inquiry established under any enactment or law repealed by this Decree and in being immediately before the making of this Decree shall on its promulgation by any means thereafter, continue as if constituted by or under and for the purposes of this Decree, and matters uncompleted before any such tribunal or pursuant to any enactment or law hereby repealed, prepared and intended for presentation thereto shall, where necessary be continued or completed, either by the same or any other tribunal accordingly by virtue of this Decree.

(c) the repeal of any enactment or law by this Decree shall not in any way affect the appointment, power or function of any person appointed or exercising any power or function by or under any such repealed enactment or law, and the appointment of such person and the exercise of such power or function shall continue and be deemed accordingly to have been made or, as the case may be, to be exercisable by virtue of this Decree, and subject to the foregoing paragraphs, the Interpretation Act 1964 shall have effect.”

The Decree further provided in section 8(3) that in making an order for forfeiture of assets corruptly or improperly acquired whether under the Decree or any other enactment or law or under any proceedings whatsoever, the Military Governor:

“May make an order for the forfeiture of any assets of any public officer or other person, no matter howsoever or whensoever acquired, if the assets whereby such public officer or other person has corruptly or improperly enriched himself or another person, or whereby he has been so enriched, are no longer subsisting either at all or in such form that they could have been made the subject of an order of forfeiture.”

It appears that the plaintiff did not refund the sum of 104,198 which the Tribunal had found he had corruptly acquired. Consequently, in exercise of the power conferred on the Military Governor by section 8 of the said Decree 37 of 1968, the Military Governor made the Public Officers and Other Persons (Forfeiture of Assets) (No.1) Order 1968, M.S.L.N. 33 of 196 MidWestern Nigeria the Plot of land and the building thereon situate at 29 Femi Pearse Street, Lagos and some shares in specified companies belonging to the plaintiff.

In parenthesis, it may be pointed out that the plaintiff had lawfully acquired the property in question, 29 Femi Pearse Street, from Lagos Federal Territory in 1962 and negotiated with Cappa (Nig.) Ltd., a construction company, which developed the land on contractor-finance basis. Cappa built a block of flats on the land and then leased the building to Gulf Oil Company in 1966 for ten years for 90,000 pounds rents. The property was forfeited when it was under the care and management of Cappa.

The plaintiff had been out of the country and was living in England since August 1967 when the Biafran Army over-ran the Mid-Western State. He did not know his property had been forfeited until Cappa informed him by its letter dated 24th August, 1972. Thereafter, he wrote several petitions to several Government’s functionaries demanding the return to him of his property. On 21st January, 1982, he secured a Resolution of the Bendel State House of Assembly which resolved that the landed property in question should be reverted to him. After he had failed to secure the return to him of the property by extra-judicial means, on 23rd June, 1982, the plaintiff instituted the suit in this appeal in the High Court of Bendel State, claiming from the defendant, the Attorney-General of Bendel State:

“1. A declaration that by virtue of the public officers (Tribunal of Inquiry) Edict No. 6 of 1967, the order of forfeiture of the plaintiff’s Assets made by the Military Governor of Bendel State on 18th September, 1968 (that is to say MSLN 33 of 1968) took effect as a judgment of a court of competent jurisdiction and was therefore enforceable by the High Court of Bendel State under the Sheriffs and Civil Process law (Cap. 116) – (now Cap. 151).

2. A declaration that every act and thing done by the Government of Mid-West State (now Bendel State) following the findings of the Begho Tribunal of Inquiry and the orders made thereon by the Military Governor of Mid-West State (which findings and orders are not put in issue in this suit), by seizure, forfeiture or otherwise, of the said house property and shares, is null and void, not being done under and by virtue of the Sheriffs and Civil process law of Bendel State Cap. 116 (now Cap. 151)
3. A Declaration that the property known as 29 Femi Pearse Street, Victoria Island, is the leasehold property of the plaintiff in as much as the purported execution was nor carried out under, or in accordance with the Sheriffs and Civil Process Law, Cap. 116-(now Cap. 151) of the Laws of Bendel State or at all.
4. An Order directing the defendant to pay over to the plaintiff the sum of N433,818.70 (Four hundred and thirty-three thousand, eight houndred and eighteen naira and seventy kobo) being money which the defendant appropriated in excess of money due to it as a result of executing the Order of forteiture, by the defendant collecting the rents and other moneys due to the plaintiff from the property known as 29 Femi Pearse Street, Victoria Island, which the plaintiff holds under a lease made by the Minister of Lagos Affairs in favour of the plaintiff and which is registered as No. 48 at page 48 in volume 1208 of the Land Registry in the office at Lagos. (The defendant has been collecting the sum of N85,000.00 a year, being rent paid on the said premises from February 1976 to February, 1982 by the tenants now occupying the premises and threaten to continue the irregular and unauthorized collection of the rents.)
5. An order restraining the defendant from henceforth collecting or claiming to be entitled to collect rents due from the said property, the order of the Tribunal of Inquiry having been fully satisfied and discharged.
6. An order directing the defendant to return to the plaintiff the plaintiffs documents of title in respect of the said house property and the plaintiff’s shares in the hands of the Government of Bendel State.
7. IN THE ALTERNATIVE TO CLAIM 4 hereof, the plaintiff claims from the defendant the sum of N641,214.70k (six hundred and forty-one thousand, two hundred and fourteen Naira, seventy kobo) being the sum of money unlawfully collected by the defendant from the plaintiffs said house property from 1976 to date.”

It follows from the foregoing that the Justice Begho inquiry and the forfeitures made there under were deemed to have been made under and by virtue of the said Decree No. 37 of 1968.

Having considered the evidence and the submission of counsel, the learned trial Judge held that the court had no jurisdiction to entertain the claim. She reasoned that if the plaintiff had instituted the suit during the Military Regime, before the 1st October, 1979 when the 1979 Constitution came into force, he would have been confronted with the provision of section 12 of the aforestated Decree No. 37 of 1968 under which the Order forfeiting his property was deemed to have been made, which ousted the jurisdiction of the court in these terms:

“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 under any enactment or other law repealed by this Decree, or the circumstance 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 3 of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”

The learned Judge further considered the provisions of section 6 of the Interpretation Act, 1964 and concluded that the fact that the said Decree No.37 of 1968 was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeal, etc.) Decree No.105 of 1979 did not restore the jurisdiction of the court. She held that the repeal of the Decree has not affected the operation of the Order forfeiting the plaintiff’s property and the court has no jurisdiction to adjudicate in the matter after the 1979 Constitution had come into force.

The plaintiff was not satisfied with the decision of the trial Judge and he appealed to the Court of Appeal. The issue of jurisdiction was also the main ground of appeal canvassed in the Court of Appeal. Chief Chukwura, S.A.N., for the plaintiff, had contended in that court that the MSLN 33 of 1968, hereinafter referred to as the Forfeiture Order, was void as the Edict No. 6 of 1967, as amended by Edict No. 7 of 1968, under which the forfeiture order was made was inconsistent with the Decree No. 5 of 1966. The inconsistency being that while the Decree only permitted the forfeiture of assets corruptly or improperly acquired, the Edict and the Forfeiture Order forfeited the plaintiffs property which had been lawfully obtained. Learned counsel further contended that although the Forfeiture Order was purported to have been made under Decree No.37 of 1968, which permitted the forfeiture of corruptly as well as lawfully acquired assets, the Forfeiture Order had taken effect before the Decree came into force.

In his lead judgment concurred by Musdapher and Ndoma-Egba. JJ.C.A.; Ogundare, J.C.A. set out comprehensively the relevant provisions of all the legislations involved, to wit Decree No. 51 of 1966. Edicts No.6 of 1967 and No.7 of 1968. Decree No.37 of 1968and the Forfeiture Order and concluded that the trial Judge was right that section 12 of the Decree No. 37 of 1968 effectively precluded the court from entertaining of suit questioning the validity of any direction, notices or order given or made or of any other thing whatsoever done under the Decree or under any of the enactments repealed by the Decree.

As I have shown earlier, the bedrock of the plaintiffs claim in the trial court was the alleged incompetence of the Military Governor to make the Forfeiture order forfeiting the plaintiffs property. Learned counsel for the plaintiff emphasized the same incompetence in his submission in the Court of Appeal. In the same vein, all the three grounds of appeal filed in this court reiterated directly or indirectly that the Military Governor was not competent to make the Forfeiture Order. Because this appeal will also be resolved on the only issue whether the court has jurisdiction to determine the competence of the Military Governor to make the Forfeiture Order, it is germane to the issue to reproduce fully the three grounds of this appeal:

“(1) The Court of Appeal erred in law in holding that MSLN 33 of 1968: Public Officers and Other Persons (Forfeiture of Assets) (No.1) Order 1968was made under Decree 37 of 1968- Investigation of Assets (Public Officers and Other Persons) Decree when – the relevant enabling legislation is the Public Officers (Investigation of Assets) Decree 1966 No.51.

PARTICULARS

(a) M.S.L.N. 33 of 1968 purportedly made under Decree No.37 of 1968 took effect on 15th March, 1968 when Decree No.37 of 1968had not been promulgated, did not exist and had not come into force.

(b) The relevant enabling and existing legislation at that time was Decree No.51 of 1966.

(c) Decree No.37 of 1968 was promulgated and came into force on 29th July, 1968 about four months after MSLN 33 of 1968 took effect.

(d) (i) If MSLN 33 of 1968 was made under Decree No. 37 of 1968, it was still born;

(ii) and if made under No.51 of 1966, it was void for inconsistency.

(2) The Court of Appeal erred in law in not holding that the Public Officers and Other Persons (Forfeiture of Assets) No.1) Order 1968 MSLN 33, as amended, (the relevant enabling legislation of which was the Public Officers (Investigation of Assets) Decree 1966 No.51) is void for inconsistency in that it purported to forfeit assets not corruptly or improperly acquired, contrary to clear enactments of Decree 51 of 1966.PARTICULARS

(a) The Court had properly held that the amendment effected to section 11(3) of the Public Officers (Tribunals of Inquiry) Edict No.6 of 1967(as amended) “is void as being inconsistent with Decree No.51 of 1966…”

(b) The Court had also properly relied on section 6 of the Interpretation Act, 1964 No.1 to the effect that the repeal of an enactment shall not affect any investigation, legal proceeding or remedy in respect of such right privilege, obligation, liability, penalty, forfeiture or punishment.

(c) The repeal of an enactment did not revive anything not in force or existing at the time when the repeal took effect.

(d) When the forfeiture order (MSLN 33 of 1968) took effect, Decree No.37 of 1968 was not in existence and the relevant enabling enactment was NO.51 of 1966 – the order could therefore not take effect under Decree No. 37 of 1968.

(3) The Court of Appeal misdirected itself in law when it held as follows:-

“On issue (2), I need only point out that there is a misconception of the provisions of Section 9 of Decree No. 37 of 1968.

The Section does not apply to the appellant who on his own showing had sufficient assets which could, at the time be made and was indeed made, the subject of an order of forfeiture…the appropriate authority had a choice of proceeding under Section 9 or 10 which related to tracing of assets into the hands of their persons.”

PARTICULARS

(a) The assets of the Appellant could not have been (and were not) forfeited under Decree No. 37 of 1968. Further and in the alternative: If Decree No.37 of 1968 (or No.51 of 1966) applied –

(b) There was no evidence whatsoever to support the Court of Appeal finding that the appellant had sufficient assets which could be made the subject of forfeiture.

(c) Sections 9 and 10 of Decree No.37 of 1968 are alternative procedures and do not allow for proceeding simultaneously with both methods as was done in this case i.e. demand and receipt of part-payment of the sum of money adjudged can not be pursued pari-pasu with forfeiture, without further demand and failure to pay any balance outstanding.”

Grounds 1 and 2 clearly stated that the Forfeiture Order was null and void in that the Military Governor had no power to make it. In effect Ground 3 also challenged the competence of the Military Governor in making the Forfeiture Order by asserting that the Military Governor should have recovered the money corruptly acquired by means of execution in a court of law. It is transparently clear that all the three grounds required this Court to determine the competence of the Military Governor to make the Forfeiture Order.

Learned counsel for the parties had put a lot of industry and research in the preparation of their Briefs in this Court. Chief Chukwura, S.A.N., referred to a plethora of over thirty cases concerning the exercise and judicial powers of the courts of law in relation to the Decrees and Edicts of Military Regimes to buttress his submissions.

In his submission, referring to Wilson v. the Attorney-General of Bendel State (1985) 2 S.C. 191; [1985] 1 NWLR (Pt. 4) 572, Chief Chukwura contended that at the time the Forfeiture Order was made there was no enabling legislation authorising the Military Governor to make it and, that being the case, the Forfeiture Order was null and void. The learned Senior Advocate further contended that since the Decree 37 of 1968 had provided that the corruptly acquired asset might be recovered by judicial process under the Sheriffs and Civil Process Law of Bendel State, that provision was tantamount to the restoration of the jurisdiction of the court of law over the subject-

matter of the claim. Consequently, argued the learned Senior Advocate, the court of law has jurisdiction to pronounce on the claim.

The learned Director of Public Prosecution for the respondent predicated her contention on a very narrow but effective issue that the court has no jurisdiction to determine the validity of the Forfeiture Order because it has been precluded from doing so by Section 6(6)(d) of the 1979 Constitution. The learned Director of Public Prosecution relied on the decisions of this Court based on the said subsection. Her area of coverage of the cases was comprehensive. It ranged from Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C.124; [1983] 4 NCLR 1 to Udoh v. O.H.M.B. (1990) 4 N.W.L.R. (Pt. 142) 52.

From the outset, it needs to be emphasized that the issue relating to the jurisdiction of the courts of law under the 1979 Constitution to determine any question as to the competence of any authority or person to make any existing law made on or after 15th January, 1966 had been well settled by this Court in Mustapha v. Governor of Lagos (1987) 2 NWLR (Pt.58) 539 and Uwaifo v. Attorney-General Bendel State (supra). In clear terms, this court decided that the jurisdiction of the courts of law to determine any such question has been excluded by Section 6(6)(d) of the 1979 Constitution as follows:

“(6) The judicial powers vested.”.. (in the courts) –

“(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.” (Bracket mine)

I may as well reiterate my observation in the Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at 596-597 thus:

‘Now, it needs to be emphasized that as from 1st October, 1979, all the courts in the Federation derive their jurisdiction from the 1979 Constitution. Where the Constitution expressly and in clear and unambiguous terms ousts the jurisdiction of any court of law from determining a particular issue or question, then the court is duty bound to give effect to the ouster. In Uwaifo v. Attorney of Bendel State (1982) 7 S.C.124 [1983] 4 NCLR 1, this court laid down in unequivocal ratio decidendi that by virtue of the provisions of section 6(6)(d) of the Constitution, a court of law has no jurisdiction to determine the competence of a Military Governor to make any Edict or the competence of the Federal Military Government to promulgate any Decree that had been made between 15th January, 1966 and 1st October, 1979. The portion at page 309 of the Report in judgment of Uwais, J .S.C., is apt where he stated:-

“The effect of the provisions of section 6 subsection (6)(d) is clearly to retain the fetter previously placed on the courts by the successive Military Regimes which ruled this country from 15th January, 1966 to 30th September, 1979 not to question the efficacy of the laws which they promulgated. I am of the opinion that no court can in view of the provisions of section 6(6)(d) of the Constitution have any jurisdiction to declare that the appropriate authority that promulgated a Decree or Edict had no power to do so.”

Also, see Joseph Mangtup Din v. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt.87) 147 at p. 171.

Like the Edict in Uwaifo v. Attorney-General of Bendel State (supra), the Edict and Order in the case on appeal are entitled to the protection accorded to “existing law” by section 6(6)(d) of the Constitution. The Edict and Order were made on 24th March, 1976 and 11th May, 1976 respectively. Both are existing laws as defined by section 274(4)(b) of the Constitution:

“existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.”

I have earlier shown that the enactments under which the Forfeiture Order had been made or deemed to have been made were repealed by Decree No.105 of 1979 with effect from 30th September, 1979.The Forfeiture Order itself has not been repealed.

Now, Section 6 of the Interpretation Act, 1964 provides:

“6. (1) The repeal of an enactment shall not-

(a) revive anything not in force or existing at the time when the repeal takes effect;

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;

(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment; may be imposed, as if the enactment had not been repealed.

Accordingly, the Forfeiture Order had the force of law on 1st October, 1979 when the 1979 Constitution came into force and is an “existing law” within the meaning of Section 274(4)(b) of the Constitution. That being the case, by virtue of Section 6(6)(d) of the Constitution, the courts have no power to determine the competence of the Military Governor of Bendel State to make the Forfeiture Order.

I have also shown that the main issue for determination in the Plaintiff’s claim revolves on the competence of the Military Governor to make the Forfeiture Order. The Constitution in its Section 6(6)(b) prevented the courts of law from entertaining such issue. Consequently, the Court of Appeal was right in upholding the decision of the trial court that it had no jurisdiction to adjudicate on the issue.

For the foregoing reasons, the decision of the Court of Appeal is affirmed and the appeal is dismissed. N500 costs shall be awarded to the defendant.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Bello, C.J.N., and I agree with him that the appeal must fail.

The central issue raised in the appeal revolves round the interpretation and application of the provision of section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decrees of the Federal Military Government.

The appellant was the Administrator of Mid-Western Region of Nigeria on its creation on the 9th day of August, 1963. After the election to the House of Assembly of the Region in 1964 February, he became the Premier and held the office till January 15th 1966 when the military took over the administration of Nigeria in a bloody coup. A Military Governor was then appointed for the Mid-western Region by the Federal Military Government. For a few months, the Federal Military Government was changed in nomenclature to the National Military Government (May 1966 to October, 1966) but subsequently reverted to its former title “the Federal Military Government.”

One of the declared aim of the Federal Military Government was the investigation of the assets of former public officers and the forfeiture of ascertained unlawful enrichment. Towards this end, it promulgated enabling legislations including Decree No.51 of 1966 titled “The Public (Investigation of Assets) Decree 1966″ which made provision in section 5 for the appointment of and establishment of a tribunal of inquiry by the Military Governor to enquire whether or not specified public officers had corruptly or improperly enriched themselves or any person by virtue of their offices or by abuse of their offices. The Decree further empowered the Military Governor to forfeit to the State assets adjudged as constituting unlawful enrichment. Subsequently, Decree No.37 of 1968” titled “Investigation of Assets (Public Officers and Other Persons) Decree 1968 was promulgated. It, among others, repealed Decree No.51 of 1966 and re-enacted most of its provisions.

The assets of the appellant were investigated by the tribunal appointed and set up by the Military Governor the Mid-western Region and it was adjudged that he had unlawfully enriched himself to the tune of N104,198:00 Section 8(3) of Decree No.37 of 1968 is very relevant as it empowered the Military Governor to forfeit the assets of the guilty public officer to cover the unlawful enrichment. More specifically, the section provides that-

“The Military Governor may make an order for the forfeiture of any assets of any public officer or other person no mailer howsoever or whensoever acquired; if the assets whereby such public officer or other person has corruptly or improperly enriched himself or another person, or whereby he has been so enriched are no longer subsisting either at all or in such form that they could have been made the subject of an order of forfeiture.”

Pursuant to this section 8(3), the Military Governor made the Public Officers and Other Persons (Forfeiture of Assets) (No.1) Order 1968, MSLN .33 of 1968 on the 18th September, 1968 forfeiting to the Government of Mid-western Nigeria the plot of land and the building thereon situate at 29 Femi Pearce Street, Lagos and some shares in specified companies belonging to the appellant. No. 29 Femi Pearce Street, Victoria Island was a leasehold property acquired by the appellant from Lagos State Government and was developed under a contract financing agreement with G, Cappa (Nig.) Ltd.

The provisions of section 8(3) of Decree No.37 of 1968 have been couched in terms wide enough to bring the above property, i.e. 29 Femi Pearse Street, Victoria Island, Lagos within the class of property liable to forfeiture by the State Military Governor for the unlawful enrichment of the appellant. The appellant paid part of the amount Sterling (23,607.7 pounds or in Naira N47,214.70k) following the decision of government to give each public officer found guilty of unlawful enrichment the choice to refund his ill-gotten gains within a reasonable time or to accept forfeiture of specified real properties to him or face the ignominy of being declared a public debtor.

On the appellant’s failure to refund the full amount, government by Notice MSLN.33 of 1968 made an order dated 18th September, 1968 (taking effect from 15th March, 1968) to the effect that the assets of the appellant referred to above.

“are hereby forfeited to the Government of Mid-Western State of Nigeria and shall without further assurance vest in the (Military Governor) and be held by me on behalf and in trust for the Government of Mid-Western State of Nigeria.”

The appellant’s counsel, Chief Olisa Chukura, S.A.N., has argued that the order was null and void as the enabling Decree was not in effect on 15th March, 1968.He conceded that at the date the order was made, the enabling Decree No. 37 of 1968 had come into force. Learned counsel in his brief formulated two issues each consisting of three sub-issues for determination in this appeal. Sub-issues 1(a) and (b) are very relevant in this appeal and read:

“1(a) Was the Public Officers and Other Persons (Forfeiture of Assets) (No.1) Order 1968 (MSLN. 33 of 1968) made under the Investigation of Assets (Public Officers and Other Persons) Decree 1968 No.37 as to oust the jurisdiction of the court;

(b) Is it possible that the relevant enabling Legislation under which MSLN. 33 of 1968 could be made is the Public Officers (Investigation of Assets) Decree 1966 No.51. In this case MSLN. 33 of 1968 is void for inconsistency in purporting to forfeit assets not unjustly or improperly acquired and was therefore incapable of ousting the jurisdiction of the High Court;

(c) If the enabling Decree for the promulgation of MSLN. 33 of 1968 is Decree No. 51 of 1966 was the jurisdiction of the Court ousted

Having regard to the three declaratory orders, the other orders and the sum of N641,214.70 claimed by the appellant the issue of jurisdiction was raised by the respondent and in my view, it assumed the primacy of importance. Indeed, the 1st, 2nd and 3rd declaratory orders claimed involve the question of jurisdiction in terms they read:

“The plaintiffs claims against the defendant are

1. A declaration that by virtue of the Public Officers (Tribunal of Inquiry) Edict No.6 of 1967, the Order of forfeiture of the plaintiffs assets made by the Military Governor of Bendel State on 19th September, 1968 (that is to say MSLN.33 of 1968) took effect as a judgment of a court of competent jurisdiction and was therefore enforceable by the High Court of Bendel State under the Sheriffs and Civil Process Law (Cap. 1l6) – (now Cap. 151);
2. A declaration that every act or thing done by the government of Mid- West State (now Bendel State) following the findings of the Begho Tribunal of Inquiry and the Orders made thereon by the Military Governor of Midwest State (which findings and Orders are not put in issue in this suit) by seizure, forfeiture or otherwise, of the said house and property and shares is null and void not being done by virtue of the Sheriffs and Civil Process Law of Bendel State.
3. A declaration that the property known as 29 Femi Pearse Street, Victoria Island is the leasehold property of the plaintiff in as much as the purported execution was not carried out under or in accordance with the Sheriffs and Civil Process Law Cap.116 (now Cap. 151) of the Laws of Bendel State or at all.

(b) Is it possible that the relevant enabling Legislation under which MSLN.33 of 1968 could be made is the Public Officers (Investigation of Assets) Decree 1966 No.51. In this case MSLN.33 of 1968 is void for inconsistency in purporting to forfeit assets not unjustly or improperly acquired and was therefore incapable of ousting the jurisdiction of the High Court;

(c) If the enabling Decree for the promulgation of MSLN.33 of 1968 is Decree No.S1 of 1966 was the jurisdiction of the court ousted Having regard to the three declaratory orders, the other orders and the sum of N641,214.70 claimed by the appellant the issue of jurisdiction was raised by the respondent as in my view, it assumed the primacy of importance. Indeed, the 1st, 2nd and 3rd declaratory orders claimed involve the question of jurisdiction in terms they read:

“The plaintiff’s claims against the defendant are

1. A declaration that by virtue of the Public Officers (Tribunal of Inquiry) Edict No.6 of 1967, the Order of forfeiture of the plaintiff’s assets made by the Military Governor of Bendel State on 19th September, 1968 (that is to say MSLN.33 of 1968) took effect as a judgment of a court of competent jurisdiction and was therefore enforceable by the High Court of Bendel State under the Sheriffs and Civil Process Law (Cap.116) – (now Cap. 151);
2. A declaration that every act or thing done by the government of Mid-West State (now Bendel State) following the findings of the Begho Tribunal of Inquiry and the Orders made thereon by the Military Governor of Mid-West State (which findings and Orders are not put in issue in this suit) by seizure, forfeiture or otherwise, of the said house and property and shares is null and void

not being done by virtue of the Sheriffs and Civil Process Law of Bendel State.

3. A declaration that the property known as 29 Femi Pearse Street, Victoria Island is the leasehold property of the plaintiff in as much as the purported execution was not carried out under or in accordance with the Sheriffs and Civil Process Law Cap. 116 (now Cap. 151) of the Laws of Bendel State or at all.

The contention raised in these claims is that the Military Governor is incompetent to make the order the terms of which are precise, clear and unambiguous. The statement that the order is not put in issue is not borne out by the terms of the claim and is a ploy to lead the High Court to exercise the judicial powers expressly withdrawn from it by the constitution.

The question, therefore, is whether the High Court of Bendel State can entertain the claim or, in other words, whether the High Court is vested with judicial powers to adjudicate on the claim. The judicial powers vested in the courts by section 6(1) and (2) is limited by paragraphs (c) and (d) of subsection 6 of section 6 of the Constitution of the Federal republic of Nigeria 1979. It is paragraph (d) of subsection (6) of section 6 of the Constitution that is of relevance in the instant appeal. It reads:

“The judicial powers vested in accordance with the foregoing provision shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”

If a court cannot exercise judicial powers, it cannot exercise jurisdiction. In other words, if it has no judicial powers, whatever jurisdiction the Constitution or law vests in it cannot be exercised. This is because the jurisdiction conferred, is an area mapped out by the Constitution or law for the exercise of judicial powers.

A claim for a declaration that the property No.29 Femi Pearse Street, Victoria Island which was taken over by the Bendel, State Government following an order of forfeiture made by the Military Governor, is the property of the plaintiff/appellant is a challenge to the validity of the order and a challenge to the competence of the Military Governor to make the order, the statement that the order is not put in issue not withstanding.

A claim that the act of forfeiture and seizure pursuant to the order of the Military Governor is null and void is also a challenge to the validity of the order and the competence of the Military Governor to make it.

The constitutional limitation imposed on the exercise of judicial powers by the courts must not be breached deliberately and consciously or by the use of clever arguments if the Rule of Law is to reign in our society. Section 6(6)(d) of the 1979 Constitution was first examined and construed by this court in the celebrated case of Uwaifo v. Attorney-General of Bendel State. (1982) 7 S.C. 124; [1983] 4 NCLR 1 the facts of which are almost similar to the facts in the instant appeal. The decision in that case has since been followed in many cases coming before us. These cases include:

Attorney-General of Imo State v. Attorney-General of Rivers State (1983) 2 SCNLR 108 at 120;

Mustapha v. Governor of Lagos (1987) 2 NWLR (Pt.58) 539 at 552-553 at 651

Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt. 87) 147; and

Dosunmu v. Attorney-General of Lagos State (1989) 3 NWLR (Pt. 87) 552.

If sympathy is to dominate our judicial task, we will falter and be unable to discharge our paramount duty of preserving the Rule of Law. The constitutional bar on the exercise of judicial power precludes the court from examining the merit of the case being put forward. It is not an indictment of the plaintiff/appellant.

In view of the constitutional bar on the exercise of the judicial powers vested in the court in respect of the claims filed by the plaintiff/appellant, the High Court was justified in dismissing the claim for want of jurisdiction and the Court of Appeal equally justified in dismissing the appeal from that judgment.

I, too, will dismiss the appeal on the ground that the judicial powers vested in the court does not extend to adjudication and determination of the claims instituted by the plaintiff/appellant. Accordingly, I hereby dismiss the appeal with costs to the respondent fixed at N500.00.

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SC.53/1989