Chief R.O. Nkwocha V. Governor Of Anambra State & Ors (1984)

LawGlobal-Hub Lead Judgment Report

ESO J.S.C.

In the High Court of Justice, Anambra State, holding at Enugu, the plaintiff in this case instituted an action against the defendants wherein his claim is as follows

“1. A declaration that section 28 of the Land Use Decree does not apply to the plaintiff’s deed of assignment of Plots No. M-17 and No. 09 Independence Layout Enugu registered as No AO at Page 40 in Volume 1043 Lands Registry at Enugu or leasehold interests in the said plots.

2. A declaration that the defendants have no right or power or competence to revoke the leasehold interests of the plaintiff in the said plots for the purposes specified in the Revocation Notices dated 16th February, 1981 (Ref. No. LEN: 3007/215 and that the said leasehold interests are still subsisting.”

The case went to trial and, at the address stage, Chief F. R. A. Williams (S.A.N.) learned counsel for the plaintiff, submitted that in the light of the pleadings, there had arisen substantial questions of law as regards the interpretation and application of some provisions of the Constitution that should warrant a reference to the Court of Appeal. The Attorney-General of Anambra State, who appeared for the defendants, opposed Chief Williams’ application.

The learned trial judge, who refused the application for reference to the Court of Appeal, proceeded with an examination of the case on its merit. He held, at the end of that examination, that the plaintiff failed to make out a case on the merit. He was also of the opinion that the case was not justifiable and the plaintiffs remedy, if any lay with the National Assembly.

The plaintiff, who was not satisfied with this decision, thereupon, appealed to the Court of Appeal, and apart from filing his notice and grounds of appeal, learned counsel representing him, Chief F. R. A. Williams S.A.N., filed a notice of application pursuant to s.259(3) of the Constitution (that is, the Constitution of the Federal Republic of Nigeria 1979) and applied that certain questions be referred to this Court. The questions which learned counsel sought to be referred are as follows:

(1) Whether the Governor of Anambra State is the proper authority to exercise the powers or functions vested in or exercisable by the Military Governor under the provisions of the Land Use Act;

(2) Whether in accordance with the provisions of section 1 of the constitution any provisions (sic) of the Land Use Act, which is inconsistent with the Constitution, is void to the extent of the inconsistency (as claimed by the plaintiff).

(3) In the alternative to question 2 whether section 28 of the Land Use Act authorises the compulsory acquisition of State land leased by the Government to an individual in accordance with the State Lands Law.

(4) In view of the provisions of section 274(6) of the Constitution that the Land Use Act shall continue to have effect as a Federal enactment as if it related to a matter in the Exclusive Legislative List, has the High Court of a State jurisdiction to entertain plaintiffs claim

The court of Appeal having heard the submissions of learned counsel, Chief Williams, and the Attorney-General of Anambra State, opposing, decided to refer the questions to this court. The Court of Appeal was influenced in its decision by the fact that there had been divergent decisions of the High Court on the matter. The court of Appeal referred to four such decisions and held that the law involved in this matter, that is, the validity of the Land Use Act vis-a-vis the Constitution, is not only unsettled, but it involves substantial legal issues. However the fourth question which deals with the jurisdiction of a State High Court in regard to a Federal enactment has been fully answered by this Court in the case of Bronik Motor Ltd. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296. We are in consequence, left to deal with the request in regard to only three questions.

When this matter came before us, we ordered, in view of the great importance of this matter, that the Attorney-General of the Federation and the Attorney-General of each of the States be put on notice and requested their appearance as amici curiae, to assist us to come to a just decision in the matter. We took submissions from all counsel representing the Federal Attorney-General and the Attorneys-General of the States that responded to our request, apart from submissions from the learned counsel representing the plaintiff, Chief R. A. Williams and also the learned counsel representing the defendant, Mr. Njelita. It is important to mention here the various submissions of learned counsel.

In a well prepared brief, Chief Williams directed the attention of this Court to the divergent decisions of some of the various High Courts in the State. The High Courts of Oyo, Anambra, Borno, Lagos and Ondo have each dealt with the issue of the constitutionality of the Land Use Act but the learned judges who made pronouncements in regard thereto had divergent views.

Chief Williams submitted, in his brief aforesaid, that without reference to the decided cases heretofore referred to the question would simply have been reduced to whether there is anything in the Constitution which requires the reading of references to “Military Governor” in the Land Use Act as if they were references to Governor of a State. Learned counsel then referred to sections 274 and 276 of the Constitution as the relevant constitutional provisions.

In regard to sub-section (1) of section 274 of the Constitution, Chief Williams drew a distinction between the sub-section and sub-section (2) thereof by pointing out that the word “modification” does not appear in sub-section (2) though it is in sub-section (1) and therefore the wide meaning given to that word in sub-section (4) (c) is irrelevant in construing sub-section (2) of the section. All that sub-section (2) does is to authorize the ‘appropriate authority’ at any time by order to:

“make such changes in the of any existing law as the appropriate authority considers necessary to bring that law into conformity with the provisions of this Constitution’.

Chief Williams’ point is that the appropriate authority, that is, the President or the Governor, can make ual change in the law only.

Learned counsel then submitted that the Land Use Act is an existing law under section 274(4)(b) of the Constitution. Perhaps, one can refer, at this stage, to the cases before the High Courts on the subject of the Land Use Act. Two of the judges of the High Court Nwokedi J. and Balogun J. took the view that the Act is an existing law under section 274(4) (b) while three judges to wit: Fakayode C.J., Anyah C.J. and Oluwa J. would not classify the Act as an existing law, but preferred to rule that it had become part and parcel of the Constitution itself having regard to the provisions of section 274 (5) of the Constitution.

Taking the issue further, counsel submitted that as the Act is an existing law, it is to continue to have effect as a Federal enactment (see section 274(6)), ergo, the President must be the appropriate authority under sub-section (2) of section 274. But, as the President never made any order which prescribed changes in the of the Act, section 274(2) is irrelevant to the determination of this issue, and only sub-section (1) thereof could be invoked. Chief Williams, in making a further distinction between sub-section (1) and sub-section (2) of section.274 of the Constitution submitted in his brief under reference, that while sub-section (1) directs the courts to exercise their power “as may be necessary” that is, solely on the grounds of necessity, sub-section (2), which gives power to the appropriate authority, confers power on that authority to be exercised on the grounds of both necessity and expediency. In other words, the appropriate authority exercises powers not only on the grounds of law, like the courts who exercise interpretative jurisdiction, but both on the grounds of law and policy.

What learned counseled acceded to is that once it is a matter of policy, it would not be justifiable and if under its interpretative jurisdiction, the court, in interpreting s.276 cannot identify the successor of the Military Governor as the executive Governor under the Constitution, it would be left to Parliament to amend the existing law and it is this type of amendment that sub-section (2) of section 274 empowers the “appropriate authority” to make.

Learned counsel then argued that as the Military Governor exercised delegated authority by virtue of s.5 of the Constitution (Basic Provisions) Decree 1975 No.32 (see in particular sub-sections (1), (3), (6), (7) and (8) thereof); the executive Governor under the Constitution, who has specific executive powers, is different, and it would be a gross misconception to regard “the Governor” under the 1979 Constitution as being identifiable as the particular authority needed to perform the same functions or substantially the same functions which the “Military Governor” performed at the time of the enactment of the Land Use Act.

Learned counsel finally made a distinction, and this is very important, between succession to “property, right privilege, liability and obligation” to which a State Governor succeeds under section.276 of the Constitution and statutory powers which in his submission are not covered by s.276 of the Constitution. Counsel relied on the judgment of this court in Attorney-General of Ogun State v. Attorney-General of The Federation 1982 3 N.C.L.R. 166 which is popularly referred to as The Public Order Case and quoted freely from the dicta of this Court in support of his contention. He therefore invited us to answer the first question in the negative.

Chief Williams considered the second question too wide and submitted it did not really arise in this case. He also invited us to decline an answer to question 3 as it does not raise any question of interpretation or application of the Constitution.

Chief Williams’ oral submissions were in line with his brief which I have dealt with in this judgment in extenso. In addition, learned counsel submitted that one must look at the Constitution to see if there are any express provisions which give authority to the State Governors to execute the provisions of the Land Use Act. If one reads section 276 of the Constitution carefully, what it transfers, submitted Chief Williams, are powers exercisable by the Military Governors under the Land Use Act.

Mr. Fidelis Nwadialo, learned counsel representing the Federal Attorney-General, an amicus curiae, postulated in his address, four questions:

(a) Is the Land Use Act an existing law as defined in section 274 of the Constitution

(b) Is the Act an integral part of the Constitution

(c) Are the provisions of section 276 of the Constitution applicable to the rights and powers conferred upon the Military Governor under the Act

(d) Is the Act amenable to modification as provided by section 274(1) of the Constitution and if it is so, what other functionaries will be substituted for the Military Governor since the office of the Military Governor has ceased to exist

Mr. Nwadialo answered the questions which he postulated as follows

(a) The Land Use Act is an existing law.

(b) It is a distinct Federal enactment and therefore it is not part of the Constitution. It is however entrenched and has the same sacro-sanctity as the Constitution.

(c) The rights under s.276 of the Constitution are statutory rights and they are not transferable by assurance. They are also not proprietary rights. They accrue to the holder virtute offici. As the land is held in trust for all Nigerians, it is the President that can modify the Act.

(d) The appropriate authority is therefore the President.

Learned counsel invited us to answer the first question in the negative, and say that the second question is academic while the third question does not arise.

Mr. Njelita, learned counsel for the defendant took the attitude that the Land Use Act is an integral part of the Constitution. He relied on section 274(5) of the Constitution for this proposition. The Act cannot therefore, according to learned counsel, be modified. Mr. Njelita, who said that section.276 also applied to property, maintained that the principles of Federalism must be followed.

Mr. Njelita invited us to answer the first question in the affirmative and hold that there is no conflict between the Constitution and the Land Use Act in answering the second question, but as regards the third question, we should hold that Section 28 of the Act does not authorize compulsory acquisition of land.

There were also submissions made by amici curiae from Imo State and Rivers State. Of significance is the submission of the learned counsel from Lagos State who said that section 276 of the Constitution does not arise and the Head of State is a delegate of the State Military Governor in respect of Federal lands in the State. The answer this amicus curiae invited us to give to question one is one in the affirmative. As regards the learned counsel from the Rivers State, he preferred to treat the matter from an historical angle. Section 274(b) of the Constitution, learned counsel submitted, resolved the doubt as to whether the Land Use Act is an existing law or an integral part of the Constitution. Counsel said it is an existing law.

In reply to all these submissions Chief Williams said that the Military Governor has two capacities and the other capacity is his position as representative or trustee for the benefit of the Federation. State lands continue to be State lands even after the Land Use Act but then what the Governor holds under the Land Use Act will be for the Federation as the Military Governor qualifies as authority of the Federation.

Now, it seems to me of great importance, that in order not to allow the discussions on this issue to become merely academic, one should not lose sight of the questions which have been put before the court. As the main discussion is on the first question, I will, respectfully, have to repeat it here again. It is:

“Whether the Governor of Anambra State is the proper authority to exercise the powers or functions vested in or exercisable by the Military Governor under the provisions of the Land Use Act”

It is in the process of answering this question that recourse has been made by learned counsel, in their submissions to sections 274 and 276 of the Constitution. Actually, the question could have been more simply put as-who succeeds, under the Constitution, the Military Governor of a State in so far as the Land Use Act is concerned All the arguments of learned counsel and their various submissions have proceeded by way of examination of section 274 and section 276 together. Indeed, in their examination of the problem, they all started with the consideration of s.274 of the Constitution before coming to section 276, probably because section 276 makes reference in its con to the generality of section 274. For my part, I think an examination of section 276 of the Constitution in the first instance is advisable as the language would appear prima facie and without more, to make the executive Governor under the Constitution the unequivocal successor of the Military Governor in so far as property, rights and powers are concerned. It seems to give a prima facie answer to the question. I will therefore proceed to examine the provision of this section, that is, s.276 first.

The section reads in full:

“276-(1) Without prejudice to the generality of section 274 of this Constitution any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against:

(a) the former authority of the Federation as representative or trustee for the benefit of the Federation; or

(b) any former authority of a State as representative or trustee for the benefit of the State,

shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be

(2) For the purposes of this section:

(a) the President and Government of the Federation, and the Governor and Government of a State shall be deemed, respectively, to be successors to the said former authority of the Federation and former authority of the State in question; and

(b) references in this section to “former authority of the Federation” and “former authority of a State” include references to the former Government of the Federation and the former Government of a State, a local government authority, or any person who exercised any authority on its behalf.”

I will now proceed to analyse the provision. It starts with:

(a) “Without prejudice to the generality of s.274”, The generality of s.274 deals with the meaning of and the effect which an existing law has. In my view, it will only be necessary to deal in detail with s.274 if the answer to the question under reference, that is the first of the three questions referred to this Court, is not got after an examination of s.276, which I have said, gives a prima facie answer to the question.

(b) “any property, right etc. . . which immediately before the date when this section comes into force . . . was vested in . . . any former authority of the State as representative or trustee for the benefit of the State”.

Section 276 came into force on 1st October 1979, but by 29th March 1978, the Land Use Decree 1978 No.6 had come into force, and section 1 thereof, provides:

“Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree”. .

It seems to me therefore that the “property” which has been referred to in section 276, includes the same property which section 1 of the Land Use Decree has vested in the Military Governor of the State by 29th March 1978, and that this property, so vested by the Decree, has, by the 1st October 1979:

[(c) “and without further assurance” than the provisions of the said section 276 of the Constitution.]

(d) now vested “in, or become exercisable or enforceable by or against the President and government of the Federation and the Governor and the government of the State, as the case may be.”

In my view, the ordinary meaning of the words herein would clearly suggest that the land which was vested by section 1 of the Land Use Decree 1978 in the Military Governor of a State has not become vested in the Governor of the State. This was the view taken by Ogundare J. (as he then was), in Tijani Akinloye v. Chief Oyejide Suit No. HCJ/9A/83 Suit No. HCJ/9A/83 decided on 17th July 1981 in the High Court, Ijero, Ondo State. The learned trial judge after a thorough excursion into the rules of literal interpretation referred to Stroud’s Judicial Dictionary and also to the case of Converdale v. Charlton 48 L.J. Q.B. 132 and defined the words “vest” to mean “to give the property in”. The learned judge held further that:

“the use of the word ‘vested’ in section of the Land Use Act 1978 has the effect of transferring to the Governor of a State the ownership of all land in that State.”

Chief Williams has however relied on the decision of this Court in the Public Order Case (supra) in coming to the conclusion in his submission that section 276 of the Constitution is irrelevant on the question as to whether the powers conferred upon the Military Governor in the Land Use Act now vest in the State Governor. The learned Senior Advocate ‘referred to a dictum of Idigbe J.S.C. when he said:

“I am inclined to the view-advocated by the defendants in their statement of defence in SC.57/1981-that ‘right, privilege, liability or obligation’ referred to in section 276 aforesaid are rights which usually or normally require to be transferred or assigned (by assurance although it can, sometimes, be so done by operation of law) to another person by or on behalf of the person in whom they are already vested before they can be enforced, exercised or enjoyed by or against such transferee; hence it was necessary for the Constitution to make the specific provision in section 276 aforesaid that these ‘right, privilege, liability or obligation’ shall on the date when that section comes into force ‘without further assurance than the provisions’ of the section under consideration ‘vest in or become exercisable or enforceable by or against the President and Government of the Federation and the Governor and Government of a State as the case may be’ (sub-section (1) of section 276, aforesaid, refers). Rights, liabilities and obligations arising under contract, tort and wills, for instance, certainly require to be transferred from one in whom they vest-by act of parties (which almost always require some form of assurance )-to another person before they can be exercised by or against the latter. One common form of transfer by operation (or implication) of law occurs when there has been a succession in office (i.e. a succession by the transferee to the office of the transferor); and, as will be seen from the next paragraph this is the true legal position in relation to transfer of statutory rights (i.e. rights imposed by or created under statutes). Power, which is another form of legal right is either public or private; public powers ‘are those vested in a person as an agent or instrument of the functions of the State . . .’ are those which are vested in persons to be exercised for their own purposes and not as agents of the State’ (see salmond: Jurisprudence 12th Edition p.229-230 Chapter 42).

When a statute confers a power to the holder of an office, it is a public power; and then unless the contrary intention appears from or in the statute, the power may be exercised only virtute officii (Le. by the holder of the office and by his successor-in-office or the holder of the office for the time being). We are concerned here in these proceedings with powers vested in the ‘Military Administrator’ by statute qua state functionary and this power belongs to the category of public power; unlike the private legal right or private power it does not require any act of party or assurance to be transferred. It is my view that section 276, which makes reference to transfer by assurance, does not contemplate such legal rights as public powers.”

(1982 3N.C.L.R. pp. 193-194)

Idigbe, J.S.C. was dealing, in that pronouncement, with “right, privilege, liability or obligation.” Not once did the learned Justice of the Supreme Court make reference to “property” which is the first essence of s.276. of course, in the con of the Public Order case, the issue of “property” did not arise for consideration and Idigbe J.S.C. was absolutely right in his pronouncement excluding “property” from his discussion, and, I agree with him in his exposition. I will deal with the last sentence, which I have underlined, in the above quotation later but as I have already said the question of “property” never arose in the Public Order case. What came up for discussion and ultimately for decision was the interchange of powers of the State Governor and the President in relation to police maintenance and securing of public order and public safety in the country.

The question, in so far as the Land- Use Act is concerned, is, no doubt, different from the Public Order case (supra). It is whether land (that is, property) as property and the power for its management are all inclusive in the phrase, “property, right, privilege. . . vested in. . . any former authority, of a State” (like the Military Governor of the State) “as representative or trustee for the benefit of the State” so as to pass to the State Governor and State Government under s.276.

I have already referred to the decision of Ogundare J. (as he then was) on the interpretation of s.276.

Anyah C.J. at the Maiduguri High Court, in Umar Ali & Co. Nigeria Ltd. v. Commissioner Land and Survey, Suit No. BOM/82/81, delivered on 4th “March 1982, relied on the dictum of Idigbe J.S.C. supra and came to the conclusion that the State Governor is not the successor of the Military Governor. Again, like some others who have relied on the dictum of the learned Justice of the Supreme Court, Anyah C. J. did not take note that the learned Justice did not include “property” in his examination.

With great respect to learned Senior Advocate, Chief Williams, and Anyah C.J., they both cannot be right in their conclusion that section 276 of the Constitution would not apply to this type of circumstance.

(1) It is my considered view that in spite of the fact that the Land Use Act is declared to be an exclusive Federal enactment by section 274 of the Constitution, the Act remains under the executive authority of the State Governor by virtue of section 276 of the Constitution. And Ogundare J. was right in his exposition in Tijani Akinlaye v. Chief Oyejide. (Supra).

Now, what were the powers of the Military Governor under the Land Use Act in whom was vested the land And what powers are now vested by section 276 of the Constitution in the State Governor They are the same, and are as follows:

(a) S.1 of the Land Use Decree. The Military Governor held the land in trust, and administered it for the use and common benefit of all Nigerians. I am clear in my mind that “all Nigerians” herein can only mean all Nigerians. It would not matter the State of origin of that Nigerian. Once he is a Nigerian, that Military Governor held the land in trust and for his benefit.

(2) By Section 276 of the Constitution, all land (property), vested in that State Military Governor, are now vested in the State executive Governor and that State executive Governor would hold the land in trust and administer it for the benefit of all Nigerians.

(b) Section 2 Control and Management were in the Military Governor as the land was vested in him. As Section 276 of the Constitution has vested the land in the State Governor, that Governor would now necessarily have the control (of the land vested in him) and the management of such land. The contrary could only be the case if the exercise had been a mere ceremonial vesting, but there is nowhere in section 276 where such a ceremonial vesting could be read into the provision.

(c) Section 5 Power of the Military Governor in relation to the land. These are statutory powers which were vested in the Military Governor, qua his position as State functionary, and these powers, to my mind, belong to the category of public powers. Public powers need no act of any party or assurance, to be transferred to the successor of the Military Governor, that is the State Governor.

It would appear to me that since Idigbe J.S.C., in the Public Order Case supra, said:

“It is my view that section 276 which makes reference to transfer by assurance, does not contemplate such legal rights as public powers,” he has often been held, after that, to have said that section 276 is no authority for succession of the executive Governors to the Military Governors. I think he has been misunderstood.

My understanding of what his Lordship said is that, while public powers need no assurance, any power that would require assurance for the purpose of transfer would not be in the contemplation of section 276 as they would not be public powers. This is right, and I am in full support. Even though what the learned Justice of the Supreme Court said was obiter, he never said section 276 of the Constitution does not apply to public powers! On the contrary, he maintained that section 276 of the Constitution does not contemplate private powers which will require further assurance. The section is in fact aimed at public powers which are exercised virtute officii, that is, by the holder of the office-in this case the Military Governor or his successor in office-the State executive Governor.

For these reasons, the State Governor would succeed to the powers of the Military Governor:

“to grant statutory rights of occupancy to any person for the purposes etc”. (See section 5(1) of the Land Use Act).

And by the same token, the State Governor would succeed to the powers of the Military Governor, which restrain him from making a grant of statutory right of occupancy or consent to the assignment or subletting of a statutory right of occupancy to a person under the age of 21 years (section 7); he would succeed to the power to grant a certificate of occupancy (section 9), power to enter upon and inspect the land comprised in any statutory right of occupancy (section 1), accept on such terms and conditions as he may think proper, the surrender of any statutory right of occupancy (section 27), revoke right of occupancy for over-riding public interest (section 28) and such other statutory or public power which, obviously without any further assurance, were vested by the Act, in the Military Governor.

In my view, section 276 of the Constitution is sufficient for the consideration of the first question and section 274, which deals with existing law, does not necessarily apply, in so far as the question of the location of the executive authority in relation to the Land Use Act goes.

I think the only relevance of section 274, in so far as the present proceedings are concerned, is the apparent conflict of the status of the Act, which would appear to be found in section 274, with the location of the executive authority, which, I have said, section 276 deals with. If, as it appears apparently, section 274 would preserve the Act as a Federal enactment, one may wonder why the executive authority should be located in the State governments. It has always been my contention that the bedrock of Federalism lies in each tier of government being a master in its own domain: see Ogun State v. The Federation (1982) 3 N.C.L.R. p.202 but then, the Land Use Act is a hybrid. And the hybridity is produced by the Constitution itself. For that reason, it is bound to produce an exception to the general rule. S.274 (1) creates the status of “existing law” and provides:

“(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution. . .”

Sub-section

(2) thereof gives power to the appropriate authority, who by virtue of Sub-section (4) (a) is:

“the President, in relation to the provisions of any law of the Federation”; or “the Governor of a State in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State. ”

to make ual changes in the existing law as opposed to the interpretative jurisdiction, conferred upon the courts in sub-section (1).

Of great importance in the issue of the status of the Act are sub-sections (5) and (6) of section 274 of the Constitution. They provide

“(5) Nothing in this Constitution shall invalidate the following enactments, that is to say . . .

(d) the Land Use Decree 1978, and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with provisions of section 9 (2) of this Constitution.

(6) Without prejudice to sub-section (5) of this Section, the enactments mentioned in the said sub-section shall hereafter continue to have effect as Federal enactments as if they related to matters included in the Exclusive Legislative List . . .”

(3) Now, the position is, in view of all these provisions of section 274, that the Land Use Act is not an integral part of the Constitution. It is an ordinary statute which became extraordinary by virtue of its entrenchment section 274(5) in the Constitution, for if the Act has been made a part of the Constitution it would not have been necessary to insert in sub-section (5) of section 274 the words-“Nothing in this Constitution shall invalidate” as the draftsman of the Constitution cannot make the Constitution to invalidate part of itself, nor would it be necessary to have in sub-section (6) of section 274 that the Act shall continue to have effect as a “Federal enactment” that is, a law made by the National Assembly, the Constitution itself not being a “Federal enactment”. In other words, the Act which is a Federal enactment, shall continue to have effect as, what it already is-a Federal enactment.

And so, it is meaningful when sub-section (5) of section 274 provides that the Act “shall continue to apply and have full effect in accordance with its tenor,” that the tenor of the Act, as a single piece of legislation, is the nationalisation of all lands in the country by the vesting of its ownership in the state leaving the private individual with an interest in land which is a mere right of occupancy, and which is the only right protected in his favour by law, after the promulgation of the Act.

(4) Once the import of section 274 and section 276 of the Constitution is thus separated, it would be clear that there is no conflict in the Act and the Constitution nor in the provisions of the Constitution in relato the Act, for it is the same organic law of the land that has provided for the status of the Act (section 274), and made it a Federal enactment which the President can modify, that has also made provision for the executive administration of the Act section 276 to be in the State executive Governor, and also made that State executive Governor the successor to the property which was in the State Military Governor.

My answer to the first question which was referred to this Court in these proceedings is therefore in the affirmative.

In regard to the second question, which is:

“Whether in accordance with the provisions of section 1 of the Constitution any provisions (sic) of and land Use Act which is inconsistent with the Constitution is void to the extent of the inconsistency”.

My view is that this Court should decline an answer to this, as the issue does not in fact arise in the main proceeding before the Court of Appeal. To this end I am in agreement with both Chief Williams and Mr. Nwadialo that what is raised in the question is purely academic.

Nor, do I think that we should give an answer to the third question which is merely an alternative to question 2 to wit

“Whether s.28 of the Land Use Act authorises the compulsory acquisition of State land leased by the government to an individual in accordance with the State Land Law.”

as the question is not only too wide and academic, in so far as the present proceedings go, the facts which lead to and the issuance of the notice of revocation were adjudicated upon by the High Court and the Court of Appeal is still to decide the issue on appeal. An answer to this question at this stage could therefore amount to this Court deciding the point including the issues of fact in respect of which the Court of Appeal is still to make a pronouncement.

In this reference proceedings, there will be no order as to costs.

IRIKEFE J.S.C. This reference was made to us by the Court of Appeal by virtue of powers so conferred under section 259(3) of the 1979 Constitution. Four questions were raised in the said reference but I would limit myself to question (1) with which this judgment is completely enmeshed. It reads:

“Whether the Governor of Anambra State is the proper authority to exercise the power or functions vested in or exercisable by the Military Governor under the provisions of the Land Use Decree.”

The Land Use Decree (No.6 of 29th March, 1978) is indisputably the most impactful of all legislations touching upon the land tenurial systems of this country before and after full nationhood. This impact is evident from the pre-amble to the Act which reads:

“Whereas it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law:

And whereas it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved:

Now therefore, the Federal Military Government hereby decrees as follows:

Section 1 of the Decree reads:

“Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.”

Thus it would be seen that by this piece of legislation a legal trust affecting every inch of Nigerian land is created constituting every State Military Governor as trustee in respect of land within the limits of his State for the benefit of all Nigerians.

We thought that the issues raised in this reference are so significant and also bearing in mind the numerous divergent decisions of several courts in this country on whether the civilian Governor under the 1979 Constitution can be said to be a successor to the Military Governor appearing in section 1 of the Land Use Decree (supra), that we should have the benefit of argument from all the Attorneys-General in this country as well as the actual counsel in the case.

The totality of the argument was wide ranging and sections 274 and 276 came in for close scrutiny. The full argument is set out in the judgment of my learned brother, ESO, J.S.C. the draft of which had been made available to me.

I agree with the reasoning and conclusions so admirably set out in the judgment of my learned brother, ESO, J.S.C. aforesaid. It only remains for me to comment briefly on some of the legal issues developed during argument by counsel. One such issue is whether the Land Use Decree is an integral part of the 1979 Constitution by virtue of the provisions of section 274(5) thereof. I am of the view that the Land Use Decree, though an entrenched provision in the Constitution and thus indestructible and cannot be amended by any authority save under the formula set out under section 9(2), is not an integral part of the Constitution. It became an existing law as on 1st October, 1979 when the Constitution came into force and also one which would continue as a Federal enactment.

I would also answer the first question posed in this reference in the affirmative. It seems to me that the trust constituted under the Land Use Decree being a right to property, which right is preserved under section 274(5) of the Constitution, would vest in the Governor of the State without further assurance. Thus while it is plain that a Governor under a civilian regime within the concept of the 1979 Constitution is not the same as the Military Governor envisaged under the Land Use Decree, it is implicit in section 276 that the vesting of property should be in the Chief Executive of the State for the time being.

I agree also that the opinion credited to IDIGBE, J.S.C. in the PUBLIC ORDER CASE- ATTORNEY-GENERAL OF OGUN STATE v. ATTORNEY-GENERAL OF THE FEDERATION 1982 3 N.C.L.R. 166 was merely obiter. This court was not on that occasion called upon to consider issues relating to succession to property.

I agree with my learned brother, ESO, J.S.C. that there should be no order as to costs.

BELLO J.S.C. I had the opportunity of reading in draft the judgment of my learned brother, ESO J.S.C. For the reasons so ably stated therein, I would also answer the 1st Question under reference in the affirmative. I consider Questions 2 and 3 too wide and academic and I would refrain from answering either.

I endorse the view of my brother, ESO J.S.C., that the Land Use Act 1978 is not an integral part of the Constitution but is a special Federal enactment which has been accorded an extraordinary status by sections 274(5) and 274(6) of the Constitution. The Constitution enjoined that nothing in the Constitution itself shall invalidate any of the provisions of the Act. The Constitution further decreed that the provisions of the Act shall continue to apply and have full effect as a Federal enactment in accordance with their tenor and to the like extent as the provisions of the Constitution. Like the alteration of the Constitution itself, the Act can only be altered or repealed in accordance with the provisions of section 9(2) of the Constitution.

It seems to me that in addition to the provisions of sections 274(5) and (6), the Act is an “existing law” within the definition of section 274(4)(b) which 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.” The Act was in force immediately before 1st October 1979 when the provisions of section 274 came into force. In consequence, the Act is an existing law within the scope of section 274 of the Constitution and as such, in my view, it is subject to the modifications provisions of the section, to wit sub-sections (1) and (2) thereof. However, by reason of the fact that the literal and ordinary meaning of section 276 of the Constitution furnishes a direct and straight forward answer to the 1st Question, I do not consider it necessary to expatiate as to whether the same result may be reached through the interpretative power of the court under section 274(1) of Constitution. I adopt the interpretation put to section 276 of the Constitution by my brother, ESO J.S.C.

I would only add that the case of A-G of Ogun State v. A-G of the Federation (1982) 3 N.C.L.R. 166 was not concerned with succession to property under section 276 but with the modifications of the powers to direct the conduct of assemblies, meetings, public processions and issuance of licenses to control the same vested in the Military Administrators by the Public Order Act 1979 which the President, in the exercise of his power under section 274(2) of the Constitution, modified by vesting the said powers in the Commissioners of Police. With all due respect, I am of the opinion that any pronouncement in Ogun’s case to the effect or which implies that a Governor under the 1979 Constitution was not a successor to a Military Governor or a Military Administrator was a mere obiter dictum in so far as succession to vested property within the scope of section 276 of the Constitution was concerned.

With regard to Questions 2 and 3, it may be emphasized that the only question which may be referred and answered under section 259 of the Constitution ought to be a question which, in addition to involving a substantial question of law, arises in the case and its answer is essential for the determination of the case. It is not within the contemplation of the section to refer general hypothetical or academic questions to a court. I consider Questions 2 and 3 as being general and academic questions and neither is essential for the determination of the case as presented before us.

OBASEKI J.S.C: This is a reference by the Court of Appeal under section 259(3) of the Constitution of the Federal Republic of Nigeria 1979 of certain questions of law for the opinion of this Court. Section 259(3) reads:

“Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.”

The facts of the case relevant to this reference have been fully stated by my learned brother, Kayode ESO, J.S.C. and it is unnecessary therefore to repeat them here. The questions referred were four in number and are as follows:

1. Whether the Governor of Anambra State is the proper authority to exercise the power or functions vested in or exercisable by the Military Governor under the provisions of the Land Use Decree.
2. Whether in accordance with the provisions of section 1 of the Constitution any of the provisions of the Land Use Act which is inconsistent with the Constitution is void to the extent of the inconsistency (as claimed by the plaintiff).
3. In the alternative to question 2, whether section 28 of the Land Use Act authorises the compulsory acquisition of State land leased by the government to an individual in accordance with the State Lands Law.
4. In view of the provisions of section 274(6) of the Constitution that the Land Use Act shall continue to have effect as a Federal enactment as if it related to a matter in the Exclusive Legislative List has the High Court of a State jurisdiction to entertain plaintiff’s claim

The Land Use Decree 1978 enacted by the Federal Military Government in 1978 came to be known as the Land Use Act under the 1979 Constitution (see section 277). These 4 questions arose from the exercise by the civilian Governor of Anambra State of the powers of revocation under section 28 of the Land Use Act in respect of plots No. M-17 and No. 09 Independence Layout, Enugu, the leasehold interests in which were assigned to the plaintiffs by a deed of assignment registered as No. 40 at Page 40 in Volume 1043 Lands Registry at Enugu.

Many High Court judges in different parts of the country have in the discharge of their duties had occasion to pronounce on these questions as they arose for determination in cases coming before them and their opinions of them are so varied as to require the opinion of the Supreme Court to bring order to the unsettled and divergent opinions. The Court of Appeal was therefore perfectly justified in referring the questions to this Court for this Court’s decision.

Of topical interest to the country, the Federal Republic of Nigeria as a whole, is the state of existence of the Land Use Decree under the 1979 Constitution of the Federal Republic of Nigeria.In other words, the question on the lips of everyone is this; has the 1979 Constitution repealed the Land Use Decree or given it greater importance and force than Federal or State enactments

My learned brother, Kayode ESO. J.S.C. has in his judgment just delivered and which I had the privilege of a preview dealt exhaustively with the questions in a manner that has attracted my concurrence in his opinions. I hereby adopt his opinions on the questions as my own.

To bring the 1st question directly within the purview of section 259(3) of the Constitution, I would rephrase the question to read:

“whether under the 1979 Constitution, the Governor of Anambra State is a successor to the Military Governor of Anambra State in regard to the land and powers vested in the Military Governor under the Land Use Decree Section 1 of the Land Use Decree vested all lands comprised in the territory of Anambra State in the Military Governor of Anambra State when it came into force on the 29th day of March, 1978.

More expressly the section provides:

“Subject to the provisions of this Decree, all lands comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree”.

The 1979 Constitution came into force on October 1, 1979 and by section 5(2) thereof the executive powers of the Anambra State, subject to the provisions of the Constitution, became vested in the Governor of the State.

The Military Governor was no doubt the former authority of the State for, (subject to certain limitations), the executive functions falling to be performed within the State in relation to any matter were delegated by law to him [sections 5(6) and 5(7) Constitution (Basic Provisions) Decree 1975 No. 32]. These executive functions delegated to him were those formerly vested in the civilian Governor or any officer or authority of a Region before 16th January, 1966 under the 1963 Constitution of the Federation and the Regions – Northern Region, Eastern Region, Western Region and Mid-Western Region of Nigeria. In his capacity as the authority of the State, the Land Use Decree vested in him all the lands comprised in the territory of the State to be held in trust and administered for the common use and benefit of all Nigerians. The 1st question necessarily includes the questions:

(1) whether the Land Use Decree is an existing law;

(2) whether the Land Use Decree is an integral part of the 1979 Constitution;

(3) whether ‘Land’ comes under the term ‘any property’ within the

provisions of section 276(1) of the Constitution.

These questions were admirably dealt with in the judgment of my learned brother, Kayode ESO, J.S.C. The Land Use Decree 1978 was a law in force in each State in the Federation of Nigeria on the 30th day of September, 1979 immediately before the 1979 Constitution came into force and by virtue of the definition of existing law in section 274(4)(b) of the 1979 Constitution of the Federal Republic of Nigeria, it became an existing law.

It was saved from invalidation by section 274 (5) of the 1979 Constitution and its provisions were to be organically live as any other provisions forming part of the Constitution [section 274(5) of the Constitution.]

The Land Use Decree was by sub-section (6) of section 274 of the 1979 Constitution to continue to have effect as a Federal enactment. This implies that it became an Act of the National Assembly under the Constitution. (See section 277 of the 1979 Constitution). Everything was done by the Constitution makers therefore to save the Land Use Decree from any repeal. It was definitely expressly saved not only by the general constitutional provisions of section 274 but also expressly by the specific constitutional provisions of section 274(5) and (6).

‘Land’ is specie of property. Property has been defined to mean ownership or title and sometimes the res over which ownership may be exercised. The land comprised in the territory of each State of the Federation is the res over which the Military Governor exercised ownership in trust. It is an immovable property. It therefore comes within the meaning of ‘property’ under section 276(1) of the Constitution. In extenso, the provisions of section 276(1) and (2) of the Constitution reads:

“(1) Without prejudice to the generality of section 274 of this Constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against;

(a) the former authority of the Federation as representative or trustee for the benefit of the Federation; or

(b) any former authority of a State as representative or authority for the benefit of the State;

shall on the date when this section comes into force and without further assurance than the provisions hereof vest in or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.

(2) For the purposes of this section

(a) the President and Government of the Federation, and the Governor and the Government of a State shall be deemed, respectively, to be successors to the said former authority of the Federation and former authority of the State in question; and

(b) references in this section to ‘former authority of the Federation’ and ‘former authority of a State’ include references to the former Government of the Federation and the former Government of a State, a local government authority, or any person who exercises any authority on its behalf.”

Applying the provisions of section 276(1) and (2), it is clear that the successor to the Military Governor is the Governor of the State and on the 1st day of October, 1979, the land comprised in Anambra State became vested in the duly elected executive Governor of Anambra State.

I agree with my learned brother, Kayode ESO, J.S.C. that the 2nd question is hypothetical and academic and does not call for an answer from this Court.

With regard to question No.3, I am also in agreement with my learned brother, Kayode ESO, J.S.C. in his opinion that the question is purely hypothetical and academic and too wide to call for any consideration and answer under a reference. It is, in my view, not a question for reference under section 259(3) of the 1979 Constitution as it is not a question directly as to the interpretation or application of the 1979 constitution.

Turning to question No.4, I am also of the opinion that our decision in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) S.C. N.L.R. 296; (1983) 6 S.C. 158 provides an adequate answer in the affirmative.

In conclusion, the Court of Appeal shall apply the decisions of this Court on the 4 questions referred to the determination of the issues or questions for determination in the appeal before it.

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Other Citation: (1984) LCN/2217(SC)