Lakanmi & Anor. V. AG. West & Ors (1970) SC.58/69

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
GEORGE BAPTIST AYODOLA COKER – JSC
IAN LEWIS – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Between

1. E.O. LAKANMI
2. KIKELOMO OLA
   (by her guardian and next friend E.O. Lakanmi) – Appellants

AND

1. THE ATTORNEY-GENERAL (WEST)
2. THE SECRETARY TO THE TRIBUNAL
3. THE COUNSEL TO THE TRIBUNAL – Respondents

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Reported:

– (1970) LPELR-SC.58/69

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Ademola Adetokunbo – Lead Judgment

This is an appeal from the Western State Court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of Western State sitting at Ibadan.

The application before the High Court was for an order of certiorari to remove an order dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed. The order itself which was admitted in evidence as Exhibit B in the certiorari proceedings reads:-
“Order by Assets Tribunal.

Under the provisions of section 13(1) of Edict No.5 of 1967, it is hereby ordered that Mr. E.O. Lakanmi, Kikelomo Ola (his daughter) and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature (i.e., lands, houses, etc.), whether standing in their names, or in any others of their various names and/or aliases, until the Military Governor of the Western State of Nigeria shall otherwise direct.
2. In particular, it is hereby ordered that the said E.O. Lakanmi and his said daughter mentioned above shall not operate their individual bank accounts by means of withdrawal therefrom without the consent of and only to the extent that the Military Governor of the Western State shall permit in writing.
3. It is hereby further ordered that all rents due on the properties of the said persons from henceforth shall be paid by the tenants thereof into the Western State Sub-Treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary pending the determination of the issues involved in the investigation into the assets of all those concerned.
4. Attention of all the persons concerned, and or their partners, co-directors, shareholders or nominees, or anyone who may like to have business transactions with them for any reasons or in any manner whatsoever is invited to these orders and the penalties provided by section 13(2) of the same Edict in case of the infringement thereof.
Dated August 31, 1967.”

The Judge of the High Court on December 21, 1967, dismissed the application, holding that the order was not ultra vires and that Edict No.5 of 1967 was validly made since, according to him, the Federal Military Government Decree No.51 of 1966 was not in question in the Western State of Nigeria when the Edict was made. We shall have cause to say more about Decree No.51 of 1966. He went further to say that the validity or otherwise of the order made by the chairman of the Tribunal could not be challenged since section 21 of Edict No.5 of 1967 states that:
“No defect whatsoever in anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or any proceedings, finding, order, decision or other act whatsoever of any person, the tribunal, or the special tribunal and in particular, no action or proceedings in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any court of law.”
A few days after this judgment, and indeed on December 27, 1967, the appellants filed their notice of appeal with nine grounds of appeal, to the Western State Court of Appeal.

From the grounds of appeal filed, it no doubt became obvious to the respondents what they had to meet at the hearing of the appeal; and when the appeal was pending, the Federal Military Government came to their aid by passing three successive Decrees, namely –
No.37 of 1968 – The Investigation of Assets (Public Officers and Other Persons) Decree, 1968.
No.43 of 1968. -The Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree, 1968.
No.45 of 1968. -The Forfeiture of Assets, etc. (Validation) Decree, 1968, dated August 28, 1968.
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These Decrees speak for themselves as their objects are clear, and they applied throughout the Federation. It was therefore no surprise when on October 18, 1968, the Acting Principal State Counsel filed in the Western State Court of Appeal a notice of preliminary objection that the court had no jurisdiction to entertain the appeal on the following grounds, that is to:
“(1) that the proceedings in this appeal relate to a challenge of the validity of an order which has been validated for all purposes under the provisions of section 1(2) of the Forfeiture of Assets, etc. (Validation) Decree, 1968, No. 35 45;
(2) that the said proceedings have abated as from August 28, 1968 by virtue of section 2(2) of aforesaid Decree.”
We recite the whole of the Decree, No. 45 of 1968, leaving out the Schedule, as follows:
”The Federal Military Government hereby decrees as follows:-
1. (1) All orders specified in column 2 of Part A of the Schedule to this Decree and made under the provisions of any enactment or other law (repealed by subsection (1) of section 14 of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968) for the purpose of forfeiting the assets of, or adjudging liable to make reparation, any public officer or other person specified in column 1 of Part A of the Schedule to this Decree, are hereby validated for all purposes with effect from their respective dates of commencement as specified in column 3 of that Part, and accordingly the said orders shall have effect by virtue of this Decree as hereinbefore provided and the assets aforementioned shall be deemed to have been forfeited and the same may be disposed of or otherwise dealt with as provided in those orders.
(2) All orders in writing dated respectively as specified in column 2 of Part B of the Schedule to this Decree and made in respect of the public officers and other persons specified in column 1 of that Part, under subsection (1) of section 13 of the Public Officers and Other Persons (Investigation of Assets) Edict 1967 (repealed as mentioned in subsection (1) of this section) for the purpose of prohibiting dispositions of, or other dealings with, the properties of the said public officers and other persons, except to the extent and in the manner specified in the said orders, are hereby validated for all purposes with effect from the respective dates of the making thereof.
(3) All other orders, notices or documents made or given or other thing whatsoever done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of this section, are hereby validated for all purposes with effect from the dates on which the same were made, given or done respectively.  
2. (1) For the avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed as mentioned in subsection (1) of section 1 of this Decree or the circumstances under which the same has been so made, given or done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising from this Decree or from any enactment or other law repealed as aforesaid.
(2) Where immediately before the date of commencement of this Decree any proceedings in any court of first instance or on appeal from such court are pending or any right to bring such proceedings has accrued in respect of any matter as to the validity of which courts are precluded from enquiring by subsection (1) of this section, the proceedings or right as aforesaid shall abate as from the date of commencement of this Decree.
3. (1) In this Decree, unless the context otherwise requires- “public officer” has the same meaning as in subsection (1) of section 13 of the Investigation of Assets (Public Officers and other Persons) Decree 1968.
(2) Subject to the provisions of this Decree, this Decree shall be read and construed as one with the Investigation of Assets (Public Officers and Other Persons) Decree 1968, and accordingly, the provisions of the last mentioned Decree shall, with necessary modifications and adaptations, apply with’ respect to orders, notices, documents and other things, whatsoever validated by this Decree.
(3) The provisions of this Decree shall have effect notwithstanding anything to the contrary contained in any decision, determination, judgment or order of any court made or given before the date of commencement of this Decree.
(4) This Decree may be cited as the Forfeiture of Assets, etc. (Validation) Decree 1968 and shall have effect throughout the Federation.”
We have not copied out the Schedule but we have to state that the present applicants’ names were included with others in the Schedule.
When on October 22, 1968 the appeal was to be heard, the Senior State Counsel for the respondents objected in limine on the grounds stated in his notice of preliminary objections aforesaid. As the same grounds were argued before us, we refrain at this stage from setting them out, except to say that the Court of Appeal ruled that Decree No.45 of 1968 was valid and that:
(1) the order, which is the object-matter of the action, has been validated by Decree No.45 of 1968, and
(2) that the Decree has also ousted the jurisdiction of the court.
Fatayi-Williams, JA, who delivered a separate judgment agreed on – (1) but did not deal with (2). The court then proceeded to strike out the appeal. It is from this judgment that the appellants have appealed to this court.
It appears clear from the above that the Western State Court of Appeal did not consider the points involved in the arguments before the high court as that court was of the view that since the passing of Decree No. 45 of 1968, it is without jurisdiction.
We feel ourselves bound, however, although that decision of the high court is now overtaken by events, to deal with some important points raised in the arguments in that court. The arguments to which we refer centre around Federal Government Decrees No.1 of 1966 and No. 51 of 1966, and Edict No.5 of 1967 passed by the Government of Western Nigeria on April 14, 1967. We will consider at this stage the history of these enactments. The Federal Military Government it is true to say, justifies its existence by the passing of Decree No. 1 of 1966. For our purpose, however, section 3 and 4 of that Decree are relevant and we reproduce them as follows:-
3. (1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
(2) The Military Governor of a Region-
(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.
(3) Subject to subsection (2) above and to the Constitution of the Federation the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region.
(4) If any law-
(a) enacted before January 16, 1966 by the legislature of a Region, or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region, is inconsistent with any law-
(i) validly made by Parliament before that date, or having effect as if so made, or
(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional Law shall, to the extent of the inconsistency be void.”
It is evident from these sections of the Decree that the Federal Military Government is empowered to legislate for the whole of Nigeria and that its powers are in no way derogatory to the powers that Parliament had under section 69 of the Republican Constitution of Nigeria. It is also evident that State Governments shall legislate by means of Edicts (as opposed to Decrees by the Federal Military Government), and for our present purpose, it is clear that the Legislative Lists, namely, the Exclusive Legislative List and the Concurrent Legislative List, as evidenced by our Constitution, are kept distinct by the Federal Military Government. Section 3(2) above provides –
3. (2) The Military Government of a Region –
(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.”
But on May 24, 1966, Decree No.34 of 1966 was passed.
Section 1 reads – “Subject to the provisions of this Decree, Nigeria shall on May 24, 1966…..cease to be a Federation ….and shall as from that day be a Republic ….”
By Section 2(1) – The Federal Military Government shall be known as the National Military Government.
Section 2(1)(c) – makes the Regions a group of Provinces.
Section 2(3) – deprives a Regional Military Governor of his powers to make laws except by express delegation from the National Military Government.
The National Military Government, as it was then called, on June 28, 1966 passed Decree No. 51 of 1966 – Public Officers (Investigation of Assets) Decree which gives powers as to certain assets of public officers to be investigated. Section 5 of this Decree delegated powers to each Military Governor “in relation to their respective group of provinces” to carry out investigations in their provinces, and subsection (3) states that no order shall be made by a Military Governor except with the prior consent of the Head of the National Military Government.
Thus, it is clear that this Decree, No. 51 of 1966, provided for the investigation of assets of public officers throughout the country.
On September 1, 1966, however, Decree No. 34 was repealed by Decree No. 59 of 1966 and once again, the Government assumed the name Federal Military Government and the position before that Decree (No.34) was restored.
Decree No. 51 of 1966 relating to Investigation of Assets etc., however stands.
On April 14, 1967, the Government of Western Nigeria passed Edict No.5 of 1967 entitled Public Officers and Other Persons (Investigation of Assets) Edict 1967 35 to which we have earlier on referred in this judgment. It was by virtue of this Edict that the order Exhibit B against the present appellants by the chairman of the Tribunal was made.

The arguments before the high court were –
(1) that the Edict No.5 of 1967 is void since it purported to operate in the same field as the Federal Military Government Decree No.51 of 1966, which in fact has covered the whole field, and
(2) that some sections of the Edict are in direct conflict with the provisions of the Decree No.51 of 1966. In the High Court, and indeed in his argument before us, the Attorney- General, Western State admitted the inconsistencies with the Decree but sought that at the time the Edict was enacted (namely, April 14, 1967), the Decree No. 51 of 1966 had no force as a Decree in the Western State. He said further, that the Edict and the Decree were to be read together. The Attorney-General then submitted that Decree No. 51 of 1966 was not recognized in Western Nigeria at the time Edict No.5 of 1967 was passed and went on to say that the cumulative effect of Decree Nos. 34 of 1966, 59 of 1966, 8 of 1967, 13 of 1967 and 27 of 1967 was to make Decree No. 51 unrecognizable.
We have considered earlier on the effects of some of these Decrees like Nos. 34 and 59 and we see nothing worthy of our attention relevant to the point in the other Decree except to say that Decree No.8 of 1967 re-established the position of Decree No.1 of 1966 vesting the Supreme Military Council both the legislative and executive powers of the Government of the Federation.
Arguing further on the point, the Attorney-General relied on the provisions of section 6(i)(a) of the Interpretation Act (No.1 of 1964) which provides that ”the repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect”.

With respect, we find ourselves unable to agree with the Attorney-General that the reading of these various Decrees lead to the conclusion he had put forward. It is clear to us that Decree No. 51 of 1966 was valid and was in operation throughout the country when it was made, and the constitutional changes in the country during that period have not, to our mind, affected it. Further, it was never denied or argued that Decree No.1 of 1966 was at any time ineffective particularly in regard to sections 3 and 4 which we have earlier considered and the effect of this Decree on Edict No.5 of 1967 is to render the latter void.
We entirely disagree with the views of the Judge of the High Court in his consideration of the phrase “cover the field” as applied by the Australian Courts, when he said:-

“The Decree No.51 of 1966 has passed through four constitutional changes in the country. I think it will be sweeping to say that the intention to be inferred was the intention of the Federal Military Government at the time the Decree was enacted. The conditions in this country are unlike what is obtaining in Australia where the Constitution referred to in the cases cited is almost permanent.
But in this country since 1966 January the Constitution of the country has on many times been suspended and the constitutional Decree by which the country is largely governed have been importantly changed four times.”
We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any state on the same subject, is void. This of course is the doctrine of “covering the field” attributed to the Australian Courts, and in accord with the cases:-
i. Ex Parte Mclean 43 C.L.R. 472 at page 483;
ii. The State of Victoria and Ors. v. Commonwealth of Australia and Ors. 58 C.L.R. 618 at page 630; and
iii. O’Sullivan v. Noarlunga Meat, Limited, etc. (1956) 3 All E.R. 177; (1957) 45 A.C. 1.
We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.
We now direct our attention to the series of events which took place between the judgment of the High Court and the hearing of the appeal in the Western State Court of Appeal. As we mentioned earlier on, during the pendency of the appeal in the Western State Court of Appeal, the Federal Military Government enacted three Decrees, namely: No.37 of 1968, No.43 of 1968 and No.45 of 1968, all of which we will now examine.
(i) Decree No.37 of 1968 was enacted on July 29, 1968 and applies throughout the Federation. It provides for the investigation of the assets of public officers and other persons whether related to them or not. Sections 14 and 12 are relevant.
Section 14(1) repeals certain enactments including:-
(a) Decree No.51 of 1966; and
(b) Edict No.5 of 1967 as from July 29, 1968.
These, as will be remembered, are the contentious Decree and Edict we dealt with earlier and upon which the judge of the High Court was called to adjudicate.
Section 14(2) of Decree No.37 of 1968 is as follows:-
(2) It is hereby declared that –
(a) the repeal of any enactment or law by this Decree shall not affect any order, notice or other document made or thing whatsoever done under the provisions of any enactment or law hereby repealed, and every such order, notice or other document or thing so far as it is subsisting or in force at the time of the repeal shall continue or have effect by virtue of this Decree;
(b) any tribunal of inquiry established under any enactment or law repealed by this Decree and in being immediately before the making of this Decree shall, on its promulgation by any means thereafter, continue as if constituted by or under and for the purpose of this Decree, and matters uncompleted before any such tribunal or pursuant to any enactment or law hereby repealed, prepared and intended for presentation thereto shall, where necessary be continued or completed, either by the same or any other tribunal accordingly by virtue of this Decree.”

And section 12 provides for the validity and exclusion of the court’s jurisdiction. It reads:-
“12. The validity of any direction, notice or order given or made, or of any other thing whatsoever done, as the case may be under this Decree, or under any enactment or other Law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”
The effect of section 14 is that although subsection (1) repeals Edict No.5 of 1967, under subsection (2), the Tribunal of Inquiry about which this complaint arose is to continue its function, and all orders already made by it are validated and to continue to operate. On the other hand, the effect of section 12 is that despite the provisions of the Fundamental Human Rights in Chapter III of the Constitution, validity of orders, notices and directions made shall not be inquired into by any Court of Law.
(ii) Decree No. 43 of 1968 is dated August 28, 1968 and made to operate as from July 29, 1968; it applies to the whole Federation. It is short and the two sections are as follows:-
“1. The Investigation of Assets (Public Officers and Other Persons) Decree 1968 is amended with effect from its commencement:
(a) in section 12 by omitting all words from “or under any enactment” up to and including the words “whatsoever done”;
(b) in section 14(2) by inserting in paragraph (a) after the word “Decree” where it secondly occurs, the words “so however that the effect of this provision shall not affect any cause or matter pending before a court at the time of such repeal”.
2. This Decree may be cited as the Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree 1968 and shall have effect as hereinbefore provided and apply throughout the Federation.