Inspector General of Police V. All Nigeria Peoples Party & Ors (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the Federal High Court Abuja delivered on the 24th of June 2005. The Respondents before this court are twelve political parties registered in Nigeria. They commenced this suit by way of an originating summons dated the 9th of February 2004 as follows:-
(1) Whether the police permit or any authority is required for holding a rally or procession in part of the Federal Republic of Nigeria.
(2) Whether the provisions of the Public Order Act (Cap 382) Laws of the Federation of Nigeria 1990, which prohibit the holding of rallies or processions without a police permit are not illegal and unconstitutional having regard to Section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria 1990.
The plaintiffs/Respondents also claimed as follows:-
(I) A declaration that the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
(II) A declaration that the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal an unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
(III) A declaration that the defendant is not competent under the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 or under any law whatsoever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
(IV) An order of perpetual injunction restraining the defendant whether by himself his agents, privies and servants from further preventing the plaintiffs and other aggrieved citizens of Nigeria from organizing or convening peaceful assemblies, meetings and rallies against unpopular government measures and policies.
The germain issues before the trial court over which both parties made vigorous submissions are whether the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990, particularly section 1(2), (3), (4), (5) and (6), and sections 2, 3 and 4 are inconsistent with fundamental rights to peaceful assembly and association as guaranteed in sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 and Article II of the African Charter on Human and People’s Rights, Cap. 10, Laws of the Federation of Nigeria 1990 on the one hand, and whether there is any provision of the Public Order Act which authorizes the Inspector General of Police to grant permit before holding rallies or to disrupt rallies. That the fundamental rights guaranteed by sections 39 and 40 of the Constitution. On the other hand, the African Charter can only be violated during a state of emergency properly declared under section 45 of the 1999 Constitution.
In the considered ruling, the lower court held as follows: –
“In the instant case, I have no difficulty in answering the question raised by the plaintiffs. I answer the first question in the negative, that is to say that no police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria. I answer the second question in the affirmative meaning that the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990, which prohibit the holding of rallies or processions without police permit are unconstitutional having regard to section 40 of the 1999 Constitution and Article 11 of the African Chatter on Human and People’s rights (Ratification and Enforcement) Acts, Cap. 10, Laws of the Federation of Nigeria, 1990.
I accordingly grant the reliefs claimed by the plaintiffs. I make declaration as follows:-
(i) That the requirement of police permit or other authority for the holding of rallies or procession in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
(ii) That the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. Cap. 10, Laws of the Federation of Nigeria. 1990.
(iii) That the defendant is not competent under the Public Order Act (Cap. 382) Laws of the Federation of Nigeria, 1990 or under any law whatsoever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
(iv) And I make an order of perpetual injunction restraining the defendant whether by himself, his agents, privies and servants from further preventing the plaintiffs and other aggrieved citizens of Nigeria from organizing or convening peaceful assemblies, meetings and rallies.”
Being aggrieved by this judgment, the appellant filed notice of appeal with five grounds of appeal in this court on the 13th of July 2005. Parties exchanged briefs. At the hearing of the appeal on the 18th of September, 2007, Mr. Assam, learned counsel for the appellant adopted and relied on the appellant’s brief deemed filed on 14/6/07. Three issues were distilled for determination as follows:
(I) Whether in view of section 45(1) of the 1999 Constitution, the provision of the Public Order Act are not inconsistent with the said 1999 Constitution.
(II) Whether it is not ultra vires for the trial court to declare the entire Public Order Act unconstitutional when the court only considered section 1, (2), (3), (4), (5) and (6), 2, 3 and 4 of the Act alleged to be inconsistent with the 1999 Constitution.
(III) Whether the defendant is competent under the Public Order Act or any other law whatsoever to stop the holding of any assembly, meeting, procession or rally without permit or licence.
All these issues flow from the grounds of appeal filed. The respondents in their joint brief filed by their learned counsel Mr. Falana on 6/12/06, raised three issues for determination as follows:-
(1) Having regard to section 45(1) of the 1999 Constitution whether some provisions of the Public Order Act are not inconsistent with section 39 and 40 of the Constitution.
(2) Whether the defendant/appellant is competent to issue or grant licence or permit for the holding of meetings, assemblies or processions in Nigeria.
(3) Whether the lower court was right in granting an injunction restraining the defendant/appellant from further preventing the plaintiffs/respondents from holding meetings, assemblies or processions.
At page three of the respondents’ brief, there is what the respondents referred to as notice of preliminary objection, Therein the respondent raised an objection against ground of the notice of appeal and Issue II in the appellant’s brief of argument. The respondents argued and submitted that the ground for the objection is that the said ground of appeal has not arisen from the judgment of the lower court.
In other words, the learnd trial Judge did not declare the entire Public Order Act unconstitutional and illegal. He went on to argue further that the respondent set out ab initio to challenge the constitutional validity of the requirement of police permit or other authority for the holding of rallies or processions in Nigeria. Consequently they sought a declaration to declare illegal and unconstitutional the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria.
The learned counsel quoted from the penultimate paragraph of the ruling of the lower court where the learned trial judge declared sections 1, 2, 3 and 4 of the Public Order Act as being inconsistent with the fundamental rights provisions of 1999 Constitution and declared them void to the extent of their inconsistency. It is clear that the lower court did not declare the entire Public Order Act illegal and unconstitutional.
The learned counsel urged this court to declare ground in the notice of appeal as well as the issue formulated therefrom in the brief of argument of the appellant as totally misconceived and ought to be discountenanced by this Honourable Court since the issue has not arisen from a competent ground of appeal it is liable to be struck out
It is trite law that an issue to be sustained must be formulated within the perimeter of a ground of appeal.
The learned counsel cited cases in support of the foregoing submission as follows:
KLM Royal Dutch Airlines v. Kumzih (2004) 8 NWLR (Pt.875) 231: (2004) 46 WRN 59 at pg, 76: Salami v. Mohammed (2000) 9 NWLR (Pt. 673) pg. 469; Alhaji Kokoro-Owo v. Lagos State
Government (2001) II NWLR (Pt. 723) pg. 552.
The appellant did not file a reply brief neither was any oral evidence proffered in court in respect of the objection at the hearing of this appeal. The learned counsel for the appellant considered this point under issue No. II in his brief.
An objection which challenges the competence of the ground of appeal and the issue raised therefrom cannot be discarded as a minor one. Any issue of competence challenges the jurisdiction of court to hear and determine that particular aspect of the appeal. A ground of appeal which does not arise from the judgment of the lower court must also be discountenanced by this court and consequently struck out as an issue for the determination of an appeal must flow from the ground of appeal, while the ground filed in the appeal must be complaints against the ratio decidendi in the case. Oniah v. Onyia (1989) 1 NWLR (Pt. 99) pg. 514; NWOSli v. Udeaja (1990) 1 NWLR (Pt.l25) pg. 188; Mark v. Eke (2004) 5 NWLR (Pt.865) pg. 54; Obasmzjo v. Yusuf (2004) 9 NWLR (Pt.877) pg.144
An objection of the magnitude raised in this appeal must obviously comply with the set standard and the procedure as stipulated in the Court of Appeal Rules.
Order 3 rule 15(1) of the Court of Appeal Rules, 2002 which stipulates as follows:-
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
(3) If the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.
The respondent has clearly defaulted in compliance with Order 3 rule 15(1).
The only option left for the court is ‘to invoke order 3 Rule 15(3) to strike out the objection. Furthermore, I perceive this objection as a gross misconception of the judgment of the lower court. A judgment of court cannot be read in bits and pieces. In the notice of appeal on page 60-64, in ground C – the ground of appeal states as follows:-
“The learned trial judge erred in law when she held that the entire Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 was inconsistent with the provisions of the 1999 Constitution.”
The particulars of error states:
(1) The learned trial judge in her judgment specifically considered sections 1, 2, 3 and 4 of the Public Order Act finding these sections inconsistent with the fundamental rights provision in the 1999 Constitution and void to the extent of their inconsistency.
(2) Despite the aforegoing, the court proceeded to declare the entire provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 illegal and unconstitutional.
(3) Section 1(3) of the 1999 Constitution invalidates any law deemed to be inconsistent with the provisions of the Constitution void only to the extent of its inconsistency.
The preliminary objection cannot therefore be justified from the error in law alleged and the Particulars of the error. The respondent could have considered this by way of observation under issue two for determination before the court.
The application is overruled and accordingly struck out.
Issue Number One
Whether in view of section 45(1) of the 1999 Constitution the provisions of the Public Order Act are not inconsistent with the said 1999 Constitution. The learned counsel for the appellant submitted that the issue is meant to determine the validity of the Public Order Act against the background of the provisions of section 40, 45 of the 1999 Constitution and Article II of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990. He re-emphasised the pronouncements of the Supreme Court on many occasions on the proper principles to interpret statutes and the Constitution with reference to the cases of Mobil Oil Plc v. IAL 36 Inc (2000) FWLR (Pt.10) pg. 1632 at 1650: (2000) 6 NWLR (Pt. 659) 146: Minister of Housing and Local Governments v. Lambert (1969) 2 WLR pg.447.
The purpose of enacting the Public Order Act is as stated in the preamble to the Act – but this appeal shall touch upon the Public Order Act as it relates to maintaining public order. By virtue of section 315 of the Constitution the National Assembly is empowered to promulgate laws for public safety and public order and section 45(1) of the 1999 Constitution authorize laws made in the interest of defence, public safety, public morality or public health and for the purpose of protecting the rights and freedom of other persons.
The learned counsel for the appellant submitted that the Public Order Act is a creation of the Constitution itself. One of the bulwarks of a democratic form of government is freedom of association. Right to assemble with other persons is not absolute as such rights can be violated during a state of emergency – by virtue of section 45 of the 1999 Constitution. It was held in the case of Chukwuma v. Commissioner of Police (2005) 8 NWLR (Pt.927) pg. 278 at 287 that the Public Order Act and Police Act are some of the laws envisaged by section 45 of the Constitution for the preservation of law, order, public safety and public health.”
The case of A.-G., of Ogun State v. A.-G., of the Federation (1982) 3 NCLR pg. 166 was cited.
The learned counsel also cited two Indian cases. The State of Madras v. G. Row (1952) SCR 597 at pg 607
Superintendent Central Prison Fatehqrah v. Ram Manohar Lohia (1960) SCR 821 to hold that Public Order Act is reasonably justifiable pursuant to section 45(1) of the 1999 Constitution to maintain public order and public safety. It is the view of the learned counsel for the appellant that the cases A-.G., Botswana v. Dow (1998) 1 HRLRA 1 and New Patriotic Party v. I.G.P Accra (2000) 2 HRLRA 1 relied upon by the learned trial Judge at the lower court are not on all fours and cannot be relied upon in determining the issues raised in this case. In a democratic society, laws must be promulgated in the interest of public order to meet situations where activities have tendency of causing public disorder although in some cases those activities may not actually lead to breach of public order.”
The learned counsel examined the relevant sections of the Public Order Act particularly sections 1-3 and stated that from the definitions, principles and case law authorities to determine whether a law is reasonably justifiable in a democratic society the court has to consider the circumstance in which the law was enacted, the mischief, it was aimed at preventing and the aims and objectives of the law. The Public order Act is designed to ensure that the policing of assembly meeting and procession are properly planned controlled and monitored. He gave an example of a rally held in Effurun Delta State where 25 persons were killed when the rallies were hijacked by hoodlums. Reference was made to the Public order Act 1986 in the United Kingdom whereupon anyone organizing a march must give the police six days notice otherwise, he may be committing an offence. The learned counsel urged the court to consider peculiarities like the rising crime rates, political violence, youth restiveness, and the need for proper policing of assemblies procession and meetings, and hold that public order Act is a law reasonably justified in a democratic society called Nigeria. The trial court was wrong when it held that it is only during period of state of emergency properly so declared that allows for the derogation from the fundamental right as provided under Section 40 of the 1999 Constitution.
In his reply to this issue the learned counsel for the Respondent Mr. Falana in his brief gave a resume of the history behind the Public order Act which was promulgated as the Public order Decree no.5 of 1979 and it became an Act of the National Assembly by virtue of Section 274 of the 1979 Constitution. Case of Attorney-General of Ogun State V. Attorney-General Federation 1982 3 NCLR 166 was cited. In a plethora of cases the fundamental rights of Nigerians to freedom of assembly and freedom of expression have been upheld by the court. The learned counsel cited some of these cases – Balarabe Musa V Peoples Redemption Party 1981 2 NCLR pg 765 at pg 768; Independent National Electoral commission V Balarabe Musa (2003) 19 WRN 1 at pg 48; Arthur Nwankwo V The State (1985) 6 NCLR pg 228
He cited the case of New Patriotic Party V Inspector General of Police 1992 – 93 (585-2000) 2 HRLRA 1 a Ghanaian Supreme Court decision where the Public order Decree 68 of 1982 which had required organizers or conveners of demonstrations and rallies to obtain police permit. In line with the foregoing cases the lower court annulled some provisions of the Public Order Act. The learned counsel for the Respondent made reference to the judicial interpretation given to the public order Act in other Common Wealth Jurisdictions. In the United States he cited the cases of Edwards V South Carolina 372 US 229 (1963) Staub V Barley 355 US 313 (1958). Shuttled Worth V City Birmingham 394 US 147 (1969)
In Germany, Brokdorfs case 69 FCC 315 (1985) was made a reference point, the case of Platform Anise Fur Ders Leben from Austria, S V Turrell & ors 1973 (1) SA 248 C 256 G from South Africa and Hirst and Agu V Chief constable of West Yorkshire 1986 (85) Court of Appeal Report from the United Kingdom. These cases solidly supported right to free speech, free assembly and freedom to petition for redress of grievance. The plaintiffs/respondents submitted that in 50 far as certain provisions of the Public order Act infringe on freedom of Assembly and expression guaranteed by Sections 39 and 40 of the Constitution it cannot be said to be a law reasonably justifiable in a democratic society. Particularly the Section of the Act which requires that a licence should be obtained to convene a meeting is inconsistent with Section 40 of the Constitution and Article 11 of the African Charter on Human and people’s Rights and to the extent of such inconsistency such provisions is illegal and unconstitutional. Since the Criminal code has made adequate provisions for taking care of the breakdown of law and order the requirement of permit to hold meetings and rallies can no longer be said to be justifiable in a democratic society. The requirement of a permit prescribed by the Public Order Act has become a substantial conditionality for the exercise of the right of freedom of assembly and association.
The Respondent referred to the case of Arthur Nwankwo V. The State (1985) 6 NCLR 228 where the court declared that the provisions of the law which justified sedition on the ground of public order and safety illegal as they violated the right to freedom of expression. The Respondent referred to the cases of INEC V Musa 2003 10 WRN pg 1 at pg 48 and FRN V Osahon 2006 24 WRN 1 to hold that the requirement of police permit for meetings is unconstitutional and inconsistent with Section 40 of the Constitution. The learned counsel to the Respondent submitted that the State Policy of the Federal Government on peaceful protests has the force of law in Nigeria, as this has recognized the fundamental right of workers to organize peaceful protests in order to register their displeasure against the government.
Since the Federal Government has publicly conceded the right of Nigerians to hold public meetings or protest peacefully against the government the defendant/appellant cannot be permitted to request this honourable court to sanction the violation of the freedom of assembly of Nigerians. This court is urged to resolve issue one in favour of the Respondent.
ISSUE NUMBER 2
Whether it is not ultra vires for the trial court to declare the entire Public order unconstitutional when the court only considered Section 1, (2), (3) (4) (5) and (6), 2, 3 and 4 of the Act alleged to be inconsistent with the 1999 constitution.
It is the submission of the appellant that the conclusion of the learned trial judge on this issue is against the constitutional norms in the interpretation of statutes wherein some sections of the Public Order Act are inconsistent with the Constitution. The trial court has no jurisdiction to declare the entire Public Order Act unconstitutional. The case of A-G Lagos State V. A.G Federation 2003 FWLR pt.168 pg 909 at pg 1113 was cited where it was held that before a court can declare a whole statute as inconsistent with the Constitution and therefore a nullity, the court must examine the totality of the statute very carefully. The court is urged to resolve this issue in favour of the appellant.
Issue No. One in the Respondents brief has adequately covered this issue.
ISSUE NUMBER 3
Whether the Defendant is competent under the Public order Act or any other law whatsoever to stop the holding of any assembly, meeting, procession or rally without permit or licence.
The learned counsel to the appellant referred to paragraphs 4, 5, 7, 8, 9 and 11 of the affidavit in support of the originating summons before the lower court on pages 3-4 of the Record. Further that by virtue of section 215 (2) of the 1999 Constitution the Nigeria Police Force including the contingent of the Nigeria Police Force in the States of the Federation and their Commissioner for Police as being under the command of the Inspector General of Police. Under the Constitution the maintenance and securing of public safety and public order is the primary responsibility of the Inspector General of Police. Under the Public order Act, the Governor of a State is empowered to direct any superior police officer to issue a licence in respect of holding of assemblies, meetings and processions. The Governor may delegate his power to the commissioner of police or any superior officer or district police officer as the case may be. By virtue of Section One of the Public Order Act. The combined effect of the Constitution and the Public Order Act cited above one would definitely conclude that the Inspector General of Police has a role to play where the issuance of a licence for the holding of meeting or rallies may be detrimental to the maintenance of law and order. The learned counsel to the appellant hold that though the Inspector General of Police is not authorised under the Public order Act to issue licence for the holding of rallies or provisions he can cause the issuance of same as under Section 215 of the 1999 Constitution the commissioner of police is under the command of the Inspector General of police and is not under any obligation to take instructions from the governor.
It is therefore submitted that the issuance of permit or licence by the police under the Public Order Act is a mechanism employed by the government to maintain law and order. The duties and primary functions of the police are as set out in Section 4 of the Police Act. The Police Act and the Public order Act is together and inseparable. The appellant has the constitutional duty to give directives relating to maintenance’ of law and order to the commissioner of police therefore the Inspector General of Police determines the issuance of permit or licence for the holding of rallies or processions as a public order maintenance mechanism.
Under Section 1 of the Public Order Act the police is empowered to issue permit or licence for the holding of rally or procession. Under Section 2 of the Public Order Act the police officer of the rank of Inspector or above may stop any assembly meeting or procession for which no licence has been issued. The Appellant cited cases A-G of Ogun State V A.G of the Federation (1982) 3 NCLR pg 66 Chukwuma V Commissioner of Police (2005) 8 NWLR pt. 927 pg 278
The learned counsel to the Respondents considered the order of perpetual injunction made by the learned trial judge as being too extensive. The order was made to cover other aggrieved citizens of Nigeria who are not parties to the suit, and as such are not entitled to any relief and the court has no jurisdiction to make such an order. The learned counsel cited cases-
Awoniyi V The Registered Trustees of the Rosicrucian Order Amore (Nigeria) (2000) 10 NWLR pt.676 pg 522 Okafor V Nnaife (2002) FWLR pt.134 pg 604 A-G Lagos State V A-G Federation (supra) at pg 1119
The court is urged to resolve this issue in favour of the appellant.
The Respondent responded to this issue that the Inspector General of police has no constitutional power to interfere In the peaceful direction given by a State governor to the commissioner of police in connection with the securing of public safety and order in the state in accordance with Section 215 Subsection (1) of the Constitution. The Governor of a State is to direct the issuance of a licence or authorize the commissioner of police or some state senior police officers for covering meetings or assemblies in a state. A-G Anambra State V. A-G Federation (2005) 9 NWLR pg 572.
The power to issue licence for public meetings which may be delegated to a commissioner cannot be usurped by the Inspector General of Police. Furthermore under the principle of delegatus non potest delegare a commissioner of police cannot further delegate the power to issue licence for public meetings to the Inspector General of Police. The Inspector General of police cannot take over the powers of the President or the duly authorized ministers in the circumstances. Consequently the Inspector General of police has been excluded by the Constitution under the doctrine of expressio unius est exclusio – alterius.
The police have no powers under the act to cancel marches on the ground that the organizers have not obtained licence or permit. The learned counsel referred to the experience in the United Kingdom where all that is required under the Public Order Act is to give six days notice in advance, to the police so as to make adequate security arrangement for the protesters or conveners or public meetings. The fear that any group may take over a peaceful protest cannot be a legal justification for banning or proscribing rallies or protests. There are no peculiarities that can justify the restriction of the right to hold public meetings without licence. Some of the Western Countries have higher crime rates than Nigeria – yet have not empowered the police to ban rallies or meetings conveyed without permit or licence. Cases cited in support of the foregoing are-
Beatty V Gillbarks 1882 15 Cox CC 138
Republic V Tema District Magistrate Grade 1 Exparte 1979 GLR 315
KolHa’am Company LMT & AI-Lhihad Newspaper V Minister of the Interior selected Judgment of Israel Supreme court vol. 1 (1948.53) pg 90 Amatratinga V. Sirimal & Ors (Appeal No.4681/92) decided on 6th March 1993.
This issue is to be resolved in favour of the Respondent.
On whether the learned trial judge was right in granting a perpetual injunction in the judgment of the lower court, the respondent submitted that for as long as the provisions of the public order Act which make the issuance of licence a conditionality for exercising the rights of citizens to freedom of assembly and association thereby unconstitutional the order for restraint is in order.
The police have no powers to stop or restrict the fundamental rights of Nigerians to freedom of expression and assembly once those rights are exercised within the ambit of the law. If the demonstrates or marchers breach any law in the course of exercising their freedom of expression and assembly the Criminal Code is there to take care of such infraction. In the court of Appeal case of Dr. Chukwuma V. Commissioner of Police (2005) 8 NWLR pt.927 pg 278 cited by the appellant which held that the Public Order Act is constitutionally valid, the court never decided that the Inspector General of Police was empowered to issue police permit or disrupt any public gathering for which no licence has been issued by the Governor of a State or his authorized agent. Superior police officers referred to under Section 4 of the Public order Act means the commissioner of police or any of the senior police officers under the state police command. The Inspector General has no statutory backing to usurp the powers of the governor to issue licence for public meetings or delegate such powers to the commissioner of police. The appellant has failed to appreciate the trend in all democratic countries whereby the right to hold meetings and assemblies is no longer subject to the whims and caprices of the government or security agents. Since the lower court has granted the reliefs of the Respondents and concluded that the Inspector General of Police has no statutory power to issue licence for public meetings under the Public Order Act – the lower court rightly granted a perpetual injunction restraining him from further preventing the plaintiffs/Respondents from exercising their fundamental right to assemble peacefully in any part of Nigeria. The court is urged to resolve this issue in favour of the Respondents.
I have painstakingly considered the submission of the learned counsel to both parties in this appeal. I am intrigued by the brilliant and elucidating submission of the learned counsel and especially that of the learned counsel for the Respondents Mr. Femi Falana on the core aspect of this appeal which by all means’ is the interpretation of Sections 39 and 40 of the 1999 Constitution touching on the fundamental rights of the citizens of this country to freedom of expression and right to peaceful assembly and association and the application and the effect of the Public Order Act Cap 382 Laws of the Federation of Nigeria 1990 on same. This court appreciates the level of research put into the preparation of his brief particularly the opinion of courts on contemporary issues from other parts of the world. It is the conclusion of the lower court in the Ruling now being challenged in this appeals that:-
“I hold the view that the Public Order Act does not only imposes limitation on the right to assemble freely and associate with others, which right is guaranteed under Section 40 of the 1999 Constitution, it leaves unfettered the discretion on the whims of certain officials, including the police. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society, it is inconsistence with the provisions of the 1999 Constitution.
The result is that it is void to the extent of its inconsistency with the provisions of the 1999 Constitution.
In particulars Section 1(2),(3)(4)(5)and (6), 2,3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their Inconsistency they are void – I hereby so declare.”
The court proceeded to answer the first question raised in the originating summons in the affirmative and the second question in the negative and accordingly granted all the reliefs claimed by the plaintiffs/respondents.
ISSUE NUMBER ONE
Whether in view of Section 45(1) of the 1999 Constitution the provision of the Public order Act are not inconsistent with the said 1999 Constitution.
(b) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking during periods of emergency of measures that derogate from the provisions of Section 33 or 35 of this constitution but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exist during that period of emergency.
Provided that nothing in this Section shall authorise any derogation from the provisions of Section 33 of this Constitution except in respect of death resulting from acts of war or authorise any derogation from the provisions of Section 36(8) of this Constitution.”
By Article 11 of the African Charter on Human and people’s Rights (Ratification and Enforcement) Act cap 10 Laws of the Federation of Nigeria 1990, the African Charter is an understanding between concerned African States to protect the human rights of their citizens within the territorial jurisdiction of their countries. It is now part of the domestic laws of Nigeria and like all other laws courts must uphold it. These rights are already enshrined in our Constitution.
The Public Order Act cap 382 Laws of the Federation of Nigeria 1990. The preamble to the Act reads:-
As rightly observed by the learned counsel to the appellant this issue seeks to determine the validity of the Public Order Act against the background of the provision of Section 40, 45 of the 1999 Constitution and the Article 11 of the African Charter on Human and people’s Rights (Ratification and Enforcement) Act Cap 10 laws of the Federation of Nigeria 1990.
It is imperative to give insight into the relevant provisions of the Constitution and the Public Order Act,Section 40 of the 1999 Constitution reads
“Every person shall be entitled to assemble freely and associate with other persons and in particular he may from or belong to any political party, trade union or any – other association for the protection of his interests.
Provided that the provisions of this Section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission does not accord recognition.
Section 45(1) reads Nothing in Section 37, 38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) In the interest of defence, public safety, public order, public morality or public health or For the purpose of protecting the rights and freedom of other persons than 48 hours thereto, and if such Governor is satisfied that the assembly, meeting or procession is not likely to cause a breach of the peace he shall direct any superior police officer to issue a licence, not less than 24 hours thereto, specifying the name of the licence and defining the conditions on which the assembly, meeting or procession is permitted to lake place, and if he is not so satisfied, he shall convey his refusal in like manner to the applicant within the time herein before stipulated.
Subsection (3)
“The Governor may authorise the issue of general licences by any superior police officer mentioned in subsection (4) of this Section setting out the conditions under which and by whom and the place where any particular kind or description of assembly meeting or procession may be convened collected or formed.
Subsection (4)
“The Governor may delegate his powers under this section
(a) In relation to the whole State or part thereof, to the commissioner of police of the state or any superior police officer of a rank not below that or a chief superintendent of police and
“An act to repeal all Public Order Laws in the States of the Federation and to replace them with a Federal Act for the purpose of maintaining public order and to prohibit the formation of quasi military organisations, regulate the use of uniforms and other matters ancillary thereto.”
The Sections under searchlight in this appeal are Sections 1 Subsections 2, 3, 4, 5 and 6, and Sections 2, 3 and 4 of the Act which read as follows:-
Section (1)
“For the purpose of the proper and peaceful conduct of public assemblies, meetings and processions and subject to Section 11 of this Act, the Governor of each Stale is hereby empowered to direct the conduct of all assemblies, meetings and processions on public reads or places of public resort in the state and prescribe the route by which and the times at which any procession may pass.
Subsection 2
“Any person who is desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort, shall unless such assembly, meeting or procession is permitted by general licence granted under Subsection (3) of this Section, first make application for a licence to the Governor not less
(b) In relation to any Local government Area or part thereof, but subject to any delegation made under paragraph (a) above to any superior police officer or any police officer for the time being acting as the District police officer.
Subsection 5 makes provision for airing of grievances against the decision of the commissioner of police to the Governor, or from the decision of any police officer to the commissioner of police and from there ultimately to the Governor. The decision of the Governor on the issue shall be final.
This issue to my mind deals with the interpretation of the constitutional provisions embodied in Sections 40 and 45 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s rights (Ratification and Enforcement) Act cap 10 Laws of the Federation of Nigeria 1990. The interpretation of the statutory provision of the Public Order Act Cap 382 laws of the Federation 1990 is also brought into focus.
It is however note worthy that the Public order Act is an Act of National Assembly. There is no gainsaying about it that the 1999 Constitution empowers the National Assembly to make laws among other things for public safety and public order – in short any law that is reasonably justifiable in a democratic society for the maintenance of public order and for protecting the rights and freedom of persons. In short the Public Order Act can be adjudged as a creation of the Constitution. The Public order Act is also an existing law by virtue of Section 315 of the 1999 Constitution.
The rights to freedom of assembly and freedom of expression are the bone of any democratic form of government. Besides their embodiment in the supreme law of the land – the 1999 Constitution and the African Charter on Human and People’s Rights locally adopted as Ratification and Enforcement Act Cap 10 Laws of the Federation of Nigeria 1990, a plethora of decisions of our courts have endorsed same.
Section 45(1) of the 1999 Constitution provides that nothing in Sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society.
There is no doubt about it that by virtue of chapter 11 of the 1999 Constitution and particularly section 14(1), the federal Republic of Nigeria is a sovereign state based on the principles of democracy and justice outlined in Section 14(2). The question which now arises for the determination of this court is whether the provisions of the Public Order Act, particularly that which requires conveners of meetings or political rallies to obtain police permit in the exercise of their constitutional rights to freedom of assembly and expression guaranteed by Sections 39 and 40 of the Constitution be held to be a law reasonably justifiable in a democratic society as maintained by the appellant or that they are inconsistent with the constitution and such provisions are illegal and unconstitutional and void in the opinion of the Respondent. The learned counsel to the Respondents held that the requirement of a permit under the Public Order Act is not being just administrative or procedural but has assumed the part of a substantial conditionality for the exercise of freedom of assembly and association.
The two Counsels for the parties furnished this court with an array of local and particularly the respondents counsel foreign authorities in defence of their stand. I must explain at this stage that a document such as the Nigerian Constitution, which is written, cannot be interpreted following judicial decisions based on principles of common law or judicial decisions that interpreted Statutes or Constitutions which are not in materia with the provisions of the constitution. However judicial decisions based on foreign Statutes and Constitution with similar or identical provisions as the Nigerian Constitution carry some measure of weight and persuasive effect, but they lack binding effect on Nigerian principle of stare decisis.
Nigerian Ports Authority V Ali Akar & Sons 1965 1 All NLR pg 526
Obadara V President Ibadan West District Council Grade B Customary Court 1964 1 All NLR 336
Alhi V. Okulaja 1972 2 All NLR pg 351
A-G Ondo State V A-G Federation 2002 9 WLR pt.772 pg 222
Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR pt. 804 pg 580
Adigun V. A-G Oyo State (No.2) 1987 2 NWLR pt.56 pg 197
The scenario leading to instituting the action before the lower court was that the Respondents being registered political parties requested the defendant/appellant the Inspector General by a letter dated 21st May 2004 to issue police permits to their members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused, there was a violent disruption of the rally organised in Kano on the 22nd of September 2003 on the ground that no police permit was obtained.
In the circumstance the police based the reason for the performance as violence and breach of the peace which may occur at the holding of the rally.
The constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law the groundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in d formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people both the governed and the government.
FRN V Ifegwu (2003) 15 NWLR pt.842 pg 113
A.G Abia V A-G Federation (2002) 6 NWLR pt.763 pg. 264
Abacha V Fawehinmi (2000) 6 NWLR pt.660 pg 228
I agree with the reasoning of my lord Pat Achotonu JSC (of blessed memory) in the case of FRN V Osahon that in the interpretation of the Constitution, beneficial interpretation which would give meaning and life to the society should always be adopted in order to enthrone peace, justice and egalitarianism in the society.”
The duty of the courts is to simply interpret the law or Constitution as made by the legislators or framers of the Constitution. It is not the constitutional responsibility of the judiciary to make laws already made by the legislature.
Courts cannot through its interpretation amend the Constitution, neither can they change the words used. Where saddled with the obligation of interpreting the Constitution the primary concern is the ascertainment of the intention of the legislature or law makers.
The Constitution cannot be strictly interpreted like an act of the National Assembly, and it must be construed without ambiguity as it is not supposed to be ambiguous. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. All cannons of Constitution must be employed with great caution. A liberal approach must be adopted. Where the provisions of a statute are clear and unambiguous effects should be given to them as such unless it would be absurd to do so having regard to the nature and circumstance of the case. The court of law is without power to import into the meaning of a word, clause or section of the Constitution or Statute what it does not say. Indeed it is a corollary to the general rule of construction that nothing is added to a statute and nothing is taken from it unless there are grounds to justify the inference that the legislature intended something which it omitted to express. The court must not or is not concerned with the result of its interpretation that is it is not the courts province to pronounce on the wisdom or otherwise of the Statute but to determine its meaning. The court must not amend any legislation to achieve a particular object or result.
Awolowo V. Shagari (1979) 6.9 SC 51
Alamieyeseigha V. FRN (2006) 16 NWLR pt.1004 pg 1
Rabiu V State (1960) 8.11 SC 130
A-G Bendel State V. A-G Federation (1981) 10 SC 1
Owena V. NSE Ltd (1997) 8 NWLR pt.515
Bronik Motors Ltd V. Wema Bank Ltd. (1983) 1 SCNLR 296
The relevant question to consider in the determination of the poser before this court as to issuance of permit under the Public Order Act under relatively calm and peaceful demonstration as opposed to periods of emergency and eruption of political violence, is in short what is the mischief the legislators envisage and are determined to arrest? The underlying factor in the peculiar circumstance of this case is the possibility of violence and breach of the peace while the rally is in progress. This first and foremost I regard as and indictment on our police force and their inadequacy to discharge their statutory duties under the Police Act Cap 439 Laws of the Federation to maintain law and order. Secondly the reason is not only untenable but highly speculative and I am of the impression that it is not pungent enough to deprive a citizen of a right enjoyed by virtue of the Constitution. The learned trial judge relied on two cases. Considered in other jurisdictions – the Supreme Court of Ghana in the case of New Patriotic Party V. Inspector General of Police 1992 -93 GBR 585 – (2000) 2 HBLRA 1 where the learned trial judge held that:-
“Police Permit has outlined its usefulness, statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain child of the colonial era and ought not to remain in our statute books.”
The case of A/G Botswana V Dow (1998) 1 HRLRA 1 was aptly considered where the Court of Appeal of Botswana declared the Citizenship Act of Botswana 1984 unconstitutional.
I am persuaded by the incident cited by the learned counsel for the Respondent that Nigerian Society is ripe and ready to be liberated from our oppressive past. The incident captured by the Guardian Newspaper edition of October 1st 2005 where the Federal Government had in the broadcast made by the immediate past president of Nigeria General Olusegun Obasanjo publicly conceded the right of Nigerians to hold public meetings or protest peacefully against the Government against the increase in the price of petroleum products. The honourable president realised that democracy admits of dissent, protest, marches, rallies and demonstrations. True democracy ensures that these are done responsibly and peacefully without violence, destruction or even unduly disturbing any citizen and with the guidance and control of law enforcement agencies Peaceful rallies are replacing strikes and violence demonstrations of the past.
If this is the situation how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution.
I hold in unison with the reasoning in the case of Shetton V. Tucker 364 US 479,488 (1960) where the United States Supreme court observed that-
“Even though the Governments purpose may be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties.”
The Police Order Act – relating to the issuance of police permit cannot be used as a camouflage to stifle the citizens’ fundamental rights in the course of maintaining law and order.
The same observation was made by our Apex Court in the case of A-G Federation V Abubakar (2007) 10 NWLR pt. 1041 pg 1 that-
“One of the basic principles of interpretation of the Constitution and Statutes is that the legislature will not be presumed to have given a right in one Section of a statute and then take it in another.”
Osadebay V. A-G Bendel State 1991 1 NWLR pt.169 Pg 525
The constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result.
The power given to the Governor of a State to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation of right to freedom of speech and freedom of assembly.
The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done.
If as speculated by law enforcement agents that breach of the peace would occur out criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.
Finally freedom of speech and freedom of Assembly are part of democratic rights of every citizen of the Republic; our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests.
The Constitution should be interpreted in such a manner as to satisfy the yearnings of the Nigerian society. The 1999 Constitution is superior to other legislations in the country and any legislation which is inconsistent with the constitution would be rendered in operative to the extent of such inconsistency. Section 1 subsections (2), (3), (4), (5), (6), and Sections 2, 3, 4 of the Public order Act are inconsistent with the constitution – they are null and void to the extent of their inconsistency.
Osha V Phillips (1972) 4 SC 259
A.G Abia State V A.G Federation (2002) 6 NWLR pt.763 pg 264
Ifegwu V. FRN (2001) 13 NWLR pt.229 pg 103
Ikine V. Edjerode (2001) 18 NWLR pt.725 pg 446
Public Order Act should be promulgated to compliment Sections 39 and 40 of the Constitution in con and not to stifle or cripple it. A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognised and deeply entrenched in the system of governance in civilised countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.
The African charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 is a statute with, international flavour. Being so, therefore, if there is a conflict between it and another statute its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation.
Abacha V Fawehinmi (2000) 6 NWLR pt.660 Pg 228
Issues one and two having been considered together are resolved in favour of the Respondents.
ISSUE NUMBER 3
Whether the Defendant is competent under the Public order Act or any other law whatsoever to stop the holding of any assembly, meeting, procession or rally without permit or licence.
I have restated the relevant provisions of public order Act earlier on in this judgment. On a proper perusal of the provisions particularly Section one sub-section 1- 6, and Sections 2 – 4 there is no where the name of the Inspector General is mentioned in connection with the issuance of permit for the purpose of conducting peaceful public assemblies. Such application is to be forwarded to the governor within forty-eighty hours of holding such. The governor may delegate his powers under the Act to the commissioner of police of the state or any superior police officer of a rank not below that of a chief superintendent of police as applicable to this case in hand.
The Act makes it a matter to be handled at state level and not federal level. Protocol will not allow the commissioner of police to delegate such power to a more superior officer. It is the stand of the appellant that under Section 215 of the constitution the commissioner of police is under the command of the inspector General of police and is therefore not under any obligation to take instructions from the governor. Further that the function of the police under the police Act and the Public Order Act are interwoven. The appellant is sued under Section one of the Public order Act. The foregoing submission of the appellant is not only rebuttable but it is equally untenable. It is the cardinal principle of interpretation of statute that where the language of a statute is clear and unambiguous, the court must give it to it as such for in that case the words of the statute speak the intention of the legislature. It is not the constitutional responsibility of the judiciary to make laws or to amend the laws made by the legislature, but to declare the laws accordingly.
The name of the appellant has been omitted from the Public order Act where there is a gap in a statute the proper remedy is an amendment of the statute by the legislature. The court can not add to or subtract from the law as enacted by the legislature under the guise of interpretation of a statute which the appellant is quietly asking this court to do.
Global Excellence Comm. Ltd V. Duke (2007) 16 NWLR pt.1059 pg 22
A-G Federation V Abubakar (2007) 10 NWLR pt.1041 pg. 1
This issue is resolved in favour of the Respondents.
In the final analysis this court has no legally justifiable reason to deem it necessary to interfere with the decision of the lower court. The appeal lacks merit and is accordingly dismissed. N20, 000 costs of this appeal is awarded in favour of the Respondents.
Other Citations: (2007)LCN/2575(CA)
