F V. Lagos Island Local Government Council & Ors (2002)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
In suit No. M/118/97 before the Lagos High Court, the appellant as applicant brought an originating summons against the respondents praying for the determination of the following questions:
- Whether or not the 1st respondent has or enjoys any powers of authority pursuant to or under:
(a) Control of Advertisements (Lagos) Act, 1965.
(b) Control of Advertisement (Lagos) Bye-Law, 1991, to impose upon and/or demand the payment of or otherwise collect from the applicant advertisement fees as it purports to under exhibit A, attaching to these summons;
- Whether or not, the 1st respondent has or enjoys, any power or authority pursuant to or under Registration of Commercial Premises/Activities Bye-Law No.3 of 1991, to impose upon and/or demand the payment of or collect from the applicant the sums demanded under exhibit ‘B’ attaching herewith.
- Whether or not the 2nd respondent being a Magistrate sitting at Court 16 Tapa, Lagos, or any substitute thereof being of the same jurisdiction has any powers or enjoys jurisdiction to issue any summonses or try the applicant for any alleged criminal offences touching upon and concerning alleged breach of
(a) Control of Advertisements (Lagos) Act, 1965.
(b) Control of Advertisement (Lagos) Bye-Law, 1991.
(c) Registration of Commercial Premises/Activities Bye-Law No.3 of 1991, as it purports to do as per attaching criminal summons exhibits ‘C’ and ‘D’ respectively.
- Whether or not:
(a) Control of Advertisement (Lagos) Act, 1965.
(b) Control of Advertisement (Lagos) Bye-Law, 1991, are existing Laws and/or enforceable Laws in Lagos State.
The reliefs which the applicant sought from the court below were these:
(i) A declaration that the 1st respondent is wholly bereft of any authority or power to carry out or give effect to the demands contained in exhibits ‘A’ and ‘B’ attaching herewith.
(ii) An Order setting aside the said notices of demand;
(iii) A declaration that the 2nd respondent has neither power nor jurisdiction to summon or try the applicant as per the criminal summons attaching as exhibits ‘C’ and ‘D’ herein.
(iv) A DECLARATION that:
(a) Control of Advertisements (Lagos) Act, 1965.
(b) Control of Advertisement (Lagos) Bye-Law, 1991.
(c) Registration of Commercial Premises/Activities Bye-Law No.3 of 1991, are not existing laws nor enforceable laws in Lagos State.
(v) An Order setting aside the said criminal summonses marked ‘C’ and ‘D’.
(vi) AN ORDER OR INJUNCTION restraining the defendants jointly and/or severally either by themselves, servants, agents and privies from doing all or any of the following:
(i) Making or causing to be made of the applicant said demand as contained in exhibits ‘A’ and ‘B’ or any other like demand.
(ii) Prosecuting or causing to be further instituted against the applicant, any criminal charges pursuant to their purported notices of demand or criminal summonses;
(iii) Trying or causing the applicant to be tried for any alleged offences pursuant to said demand, notices and criminal summonses.
(iv) Harassing and/or otherwise disturbing the applicant concerning the said demand;
(v) Costs of this application and other consequential reliefs.
The applicant filed an affidavit in support of the application.
Paragraphs 1 to 5 of the said affidavit read:
“1. That I am a Legal Practitioner in the Law Firm of LAYI BABATUNDE & CO.; Solicitors to the applicant, by virtue of which I am conversant with the facts of this case.
- That I have the authority of the applicant and chambers to depose to this affidavit.
- That I am informed by Mr. Suleiman Baba Jiwo, the Docemo Branch Manager of the Applicant Bank and I verily believe as follows:
(i) That the 1st respondent as per the attaching exhibits ‘A’ and ‘B’ demanded the payment of advertisement and registration of commercial premises fees respectively from the applicant.
(ii) That the respondent caused a criminal summons to be issued by the 2nd respondent against the applicant as per the attaching exhibits ‘C’ and ‘D’ concerning the payment of the fees imposed by the 1st respondent.
(iii) That the applicant being dissatisfied with these developments instructed their solicitors Messrs LAYI BABATUNDE & CO. to take out this summons on their behalf;
- That I am advised by O.M. Babatunde; Principal Counsel in Chambers and I verily believe that the Law upon which the respondents rely for their acts, does not avail them at all.
- That I verily believe that it is in the interest of justice to grant the prayers sought by this summons.”
The applicant annexed to the affidavit in support of the application some documents as exhibits.
The respondents did not file a counter-affidavit.
The parties filed written submissions on the Originating Summons. The applicant made submissions as to why the questions raised in the Originating Summons, must be answered in his favour and the reliefs sought granted.
The respondents who had no counter-claim before the lower court elected to treat the questions raised in the Originating Summons as issues. They then formulated their own issues thus:
“1. Whether the Lagos Island Local Government (1st Respondent) was capable of carrying out its duties and functions by collection of advertisement rates and charges for Registration of Commercial premises given the fact that “Local Government (Basic Constitutional and Transitional Provisions) Act Cap. 213 Laws of the Federation of Nigeria, 1990, has been repealed by Decree No. 111 of 18/11/93. This covers issues No.1, 2 and 4, of the applicant.
- Whether the 2nd respondent has jurisdiction/power to issue summon against the applicant for failing and neglecting to pay its advertisement rates and charges for Registration of Commercial premises as at and when due and or after Demand Notices to that effect have been served on the applicant. This covers issue No.3”
The trial Judge in his ruling which was delivered on 27/9/2000 adopted the issues for determination as formulated by the respondent and ended up striking out the applicant’s originating summons. The applicant before the lower court was dissatisfied and has brought this appeal. In the appellant’s brief filed, the issues for determination were formulated as follows:
“(i) Whether the Hon. trial Judge accorded the appellant a fair hearing, when the Hon. Judge abandoned the issues raised in the appellant’s originating summons and instead provided answers to issues raised by the 1st respondent in its written submission. (Ground 1 of the notice of appeal).
(ii) Whether acts of the 1st respondent pursuant to laws which the learned trial Judge found to be dead laws could be saved by a resort to the provisions of section 7 and the 4th schedule of the 1979 Constitution (Grounds 2, 3, and 5 of the notice of appeal).
(iii) Whether the learned trial Magistrate had jurisdiction to issue criminal summons pursuant to Laws which were dead at the time of their issuance and to proceed to try the appellant for offences under the said dead laws.
(Ground 4 of the notice of appeal).”
The 1st respondent’s issues are formulated in words different from the appellant’s but the substance is the same. I shall be guided by the appellant’s issues in this judgment.
Appellant’s issues 1 and 2 are to be discussed together. It was the appellant’s contention that whereas by his originating summons, it specifically raised the issue that:
(1) The Control of Advertisements (Lagos) Act, 1962.
(2) Control of Advertisement (Lagos) Bye-Law, 1991; and
(3) Registration of Commercial Premises/Activities Bye Law No.3 of 1991.
had been repealed, the lower court did not specifically decide on the point but merely went on to decide whether there was another provision under the 1979 Constitution of Nigeria, which served the same purpose as the enactments alleged to have been repealed. Appellant’s counsel referred to Ugbodume v. Abiegbe (1991) 8 NWLR (Pt.209) 261 where the Supreme Court per Olatawura J.S.C. observed:
“… an issue properly raised and canvassed must be given a fair hearing and consideration. It must be examined critically in order to avoid a miscarriage of justice…”
On the same point counsel referred to N.N.N. Ltd. v. Ademola (1997) 6 NWLR (Pt.507) 76 at 83.
Respondents’ counsel in his reply, argued that the appellant had a fair hearing of its case before the lower court. He relied on Olayiwola Olagunyi v. Alimi Oyeniran (1996) 6 NWLR (Pt.453) 127 at 153 and Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628.
I think that respondents’ counsel did not fully comprehend the nature of the complaint of appellant’s counsel concerning the denial to the applicant of a fair hearing of its case. The complaint is not that the appellant was not allowed to present its case fully before the lower court or that it was denied the procedural rights to have its case ventilated. Rather, it is that after it has been allowed the opportunity to fully present its case, the lower court denied it fair hearing by not considering the case it made.
Earlier in this judgment, I observed that the lower court in its ruling now appealed against had adopted the issues formulated by the respondent.
What therefore, remains to be considered in this judgment, is whether or not the issue which the respondents formulated before the lower court and upon which the ruling of the lower court was based amply accommodated the questions, which the appellant had presented before the lower court for answers. In other words, had the lower court by basing its ruling on respondents’ issues also hearkened to the request placed before it by the appellant?
At pages 32 and 33 of the record of proceedings; the trial Judge in summarising the case made before him by parties’ counsel wrote:
“It was the contention of the applicant’s counsel that the Control of Advertisement Act, 1969 and the Control of Advertisement (Lagos) Bye-Law, 1991, did not empower the 1st respondent to impose the advertisement fees as contained in exhibit A. It was further contended that Cap. 213 of the LFN 1990, has been repealed by Decree No. 111 of 1993. It is a two-section Decree signed into Law on the 18th November, 1993. S.1 (1) states:
“The Local Government Councils including the Area Councils in the Federal Capital Territory, Abuja, are hereby dissolved.
Therefore, anything done under that Law therein before became spent.”
The respondents’ counsel on the other hand, contended that though the Local Government Act, Cap. 213 had been repealed by Decree 111 of 1993, the said Decree did not abrogate Section 7, Fourth schedule of the 1979 Constitution, which is in pari materia with Section 7 Fourth Schedule of the 1979 Constitution.
Therefore, the respondent had validly issued the notices under the 1979 Constitution, Section 7 Fourth schedule.”
The lower court in its ruling accepted the arguments canvassed by the respondents. I think with respect to counsel, who appeared in this case before the lower court that, they were not on firm ground to have accepted that the Control Advertisements (Lagos) Act, 1965 and the subsidiary legislation made under it i.e. the Bye-Laws of the Lagos City Council – (I) Control of Advertisement (Lagos) Bye-Law 1991 and Registration of Commercial Premises/Activities Bye-Law No.3 of 1991 were dead laws.
A law can only be dead, when it is expressly repealed or when impliedly repealed. There is no difficulty in understanding the express repeal of a law. A law is impliedly repealed by a later law, when the enactments in the former are inconsistent with those in the later law.
In all the arguments of both counsel before the lower court, none of them referred to any law which expressly repealed the Control of Advertisements (Lagos) Act, 1965. This was the law which enabled the Lagos City Council to make the two bye-laws in 1991, on the Control of Advertisement and the Registration of Commercial Premises Activities.
The Control of Advertisements (Lagos) Act, 1965, was made, while the 1963 Republican Constitution of Nigeria was in Force. The military came into governance in 1966. None of the Decrees of the Military Government of Nigeria expressly repealed the Control of Advertisement (Lagos) Act, 1965.
In 1979, the Country had a new Constitution. Section 7(1) thereof provides.
“7(1) The system of local Government of democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”
Under the 1979 Constitution, fourth schedule, the functions of a Local government as set out include the control and regulation of out-door advertising and boardings. Nothing under the 1979 Constitution repealed the Control of Advertisements (Lagos) Act, 1965.
It is eye-opening to note that Section 274 of the 1979 Constitution, preserved the continuance of existing Laws subject to such modifications as would bring them into conformity with the 1979 Constitution. No argument was canvassed before the lower court to show that the said 1965 Act, was inconsistent with the 1979 Constitution.
On 17th May, 1989, the Federal Military Government promulgated the Local Government (Basic Constitutional and Transitional Decree) cap 213, 1990 Laws of the Federation. Under Cap 213, there was established for Nigeria 449 Local Government Areas. Under the First schedule of the Decree Lagos Island Local Government was one of Local Governments established. The main purpose of Cap. 213 was to establish the structure and framework of Local Government administration and how elections were to be conducted into the councils. It is important for the purpose of this case to say that Section 27(k) of Cap. 213 vests in a local government the function for;
“(k) control and regulation of –
(i) out – door advertising and boardings”
No enactment under cap. 213 repealed the Control of Advertisements (Lagos) act, 1965. Rather, it affirms the functions of a Local Government in the control and regulation of out-door advertising and boardings.
Now on 18th, November, 1993, by Decree No. 111, Cap. 213 was repealed and the Local Government Councils established under Cap. 213 were dissolved. Nothing however, was said under Decree 111 repealing the Laws in existence, concerning the functions of Local Government Councils. This remained the position until the 1999 Constitution came into force. This suit was commenced in 1997 and so the 1999 Constitution is not relevant.
My purpose in discussing the contents and effect of Cap. 213, Decree no. 111 of 1993 and the 1979 Constitution is to show that, none of these enactments expressly repealed the 1965 Control of Advertisement Act. Although, the Constitution of Nigeria, which was in existence when the 1965 Act, was passed has been successively repealed by the diverse decree of the military, until the 1979 Constitution came into force, nothing in those decrees expressly repealed the 1965 Act and no decree or Law subsequent to the 1979 Constitution, expressly or impliedly repealed the Act.
In Kutner v. Phillips (1891) 2 Q.B. 267 at 272 Smith J. observed:
“Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts, unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together.”
Also in Re Berrey (1936) 1 Ch. 274 at p. 279 Farewell said:
“It is well settled that the court does not construe a later Act as repealing an earlier Act, unless it is impossible to make the two Acts or the two sections of the Act stand together, i.e. if the section of the later Act, can only be given a sensible meaning, if it is treated as impliedly repealing the section of the earlier Act.”
The Supreme Court in Governor of Kaduna State v. Kogoma (1982) 6 S.C. 87; 3 NCLR 1032, also made the same point when it said per Fatayi-Williams C.J.J. at pages 106 – 107:
“It is now well established that the courts will lean against implying the repeal of an existing legislation.
Therefore, if both the earlier and later statutes can reasonably be construed in such a way that both can be
given effect to, this must be done.”
Clearly in my view, in as much as there was no law or constitutional provisions expressly repealing the Control of Advertisements (Lagos) Act 1965, and since the provisions of the Act, have not been shown to have been inconsistent with any later law such that, it can be said that it was impliedly repealed, the provisions of the Act remain in force and as good as any other law.
As for the Bye-Laws made under the Act in 1991, by the Lagos City Council, these are equally protected as if they were Laws enacted by the Legislature. A subsidiary legislation when validly made had effect and force as the principal or enabling Act. In Queen v. Bukar (1961) 1 All NLR. 646 Ademola C.J.N. at page 650 – 651 said:
“This section is a saving provision, and by virtue of it, the repealed provisions of the Criminal Code continued to have the effect of law in respect of offences committed before the date of the repeal. To this extent, the Criminal Code continued in force as an existing law under subsection (1) of Section 3 of the Nigeria (Constitutional) Order in Council, 1960, having regard to sub-section (7) of that Section, which defines an existing law as follows:-
(7) For the purposes of this section “the existing laws” mean all Ordinances, Laws, Rules, regulations, orders and other instruments having the effect of law made or having effect as if they had been made in pursuance of the Orders in Council revoked by this Order and having effect as part of the law of the Colony and Protectorates of Nigeria or any part thereof immediately before the commencement of this Order.
For the reasons given above, we can see no reason to differ from the decisions of this court in the case of The Queen v. Tuke (supra), and we accordingly affirm and follow that decision.
The liability of the offender, in our view, is preserved and to that extent, the Criminal Code still has the effect of law.”
The conclusion to be arrived at, is that although the lower court did not fully discuss the relevant principles, it still managed to come to the right conclusion that:
” …the 1st respondent has the functionary (sic) power to collect Advertisement Rates and charges for registration of commercial premises within its sphere of operations i.e., Lagos Island.”
In view of the answers, I have given above to issues 1 and 2, issue 3 has become a non – issue. A magistrate has the power to try offences, which fall under its specified jurisdiction under the Magistrate’s Law.
This appeal fails. It is dismissed with N3,000.00 costs to the 1st respondent.
Other Citations: 2002)LCN/1178(CA)
