The Attorney General Of Lagos State V. The Hon. Justice L. J. Dosunmu (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

This is an appeal from a reserved judgment of the Court of Appeal delivered on the 1st day of September, 1988. Akpata, J.C.A., wrote the lead judgment, while Babalakin and Awogu, J.J.C.A., concurred. Akpata, J.C.A., in the opening paragraph of his judgment at p. 335 of the record of proceedings, said inter alia:

“This appeal covers a large range of important legal issues. There is the question whether an Order contained in a legal notice pursuant to a Section of an Edict can over-ride another Section which has not been repealed. Also prominent is the issue of the now ubiquitous ouster Clauses” in Decrees which purport to prevent courts from entertaining the question of the validity of any Decree or Edict. . . .”

In his contribution in his concurring judgment, Awogu, J.C.A., at p. 371 of the record observed inter alia:

“. . . . The appellant attacked the claim of the Respondent on two major grounds. The first is that it contravened the provisions of S. 6(6)(d) 1979 Constitution which ousted the jurisdiction of the court in respect of an existing law made before October 1979. There is of course, no doubt that Edict No. 10 of 1976 was an existing law as Akpata, J. C.A., has shown, but Sections 4 and 6 thereof were unconstitutional in so far as they infringed the provisions of Section 31 of the 1963 Constitution. To that effect, Section 274 of the 1979 Constitution provided for the offending provisions to be declared invalid by the court, and provisions of S.6(6)(d) notwithstanding” .

The judgment of the Court of Appeal now appealed against was in no doubt that the issue of the Court’s jurisdiction was a radical and crucial issue in this case.

The facts of this case are short and are in the main not in dispute. The Government of the Federation of Nigeria in 1963 leased plot 134 Victoria Island to the Plaintiff/Respondent. This lease was registered as LO.5257. Eleven years later, in 1974, the Lagos State Government leased another plot No. 272 in the self same Victoria Island to the plaintiff/Respondent. This second plot was registered as LO.7307. In addition to these two plots in Victoria Island the plaintiff/Respondent was the lessee of plot No. 571 in South-West Ikoyi. This other plot was registered as LO4295.

In July 1975, there was a change of Government and the Military Government which came to power at that time was (to quote from the Introduction to the appellant’s Brief) “a revolutionary one” which “embarked on:

(i) A mass retirement of public servants in a most unprecedented manner; (ii) compulsory take-over of privately owned schools;

(iii) Probes by Special Assets Investigation Panels of the assets of public officers in various States;

(iv) A review of the system of land holding.”

In Lagos State, the Military Administration “evolved a new policy that no person should own more than one plot of State land at Victoria Island and not more than two plots of such land in South-West Ikoyi irrespective of whether or not such plots were acquired by direct allocation or by transfer or by assignment. ”

Pursuant to the above land policy, the Military Government of Lagos State on the 11th day of August, 1975 set up a Committee of three men made up of Mr. T. O. Folami, Mr. D. O. Ijeru and Mr. Ashorobi who were to compile a comprehensive list of names of persons who owned more than one plot in Victoria Island and more than 2 plots in South-West Ikoyi. On receiving the Committee’s Report, the Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict No.3 of 1976 and Determination of Interests in State Lands Order L.S.L.N. No.9 of 1976.

The Plaintiff/Respondent was affected as he owned more than one plot in Victoria Island. His (plaintiff/Respondent’s) interest in this second plot No. 272 registered as LO.7307 was determined by the 1976 Order L.S.L.N. No.9 of 1976.

Upon the above facts, the Respondent as plaintiff in the trial court sued 3 Defendants namely:

1. The Attorney-General of Lagos State.
2. Lagos State Development and Property Corporation; and
3. Ibile Properties Limited.

Pleadings were ordered by the court of first instance. The plaintiff pleaded the 1976 Edict and the 1976 Order and added:

“4 The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Sections 22(1) and 31(1) of the Constitution of the Federation, 1963.”

‘In paragraph 8 of the Statement of Claim, the Plaintiff pleaded the 1976 Order and added in paragraph 9.

“9. The plaintiff will contend, at the trial of this action that the 1976 Order was and remains illegal, null and void because the law under which it was made was unconstitutional”.

There is no doubt therefore that the Plaintiff’s case was a direct challenge to the constitutionality of the 1976 Edict and the legality of the 1976 Order.

The question now is – Can the plaintiff challenge the validity of the cancellation of his interest in the residue of the lease under Title No. LO. 7307 thus indirectly challenging the 1976 Edict and the 1976 Order The 1st Defendant’s answer is contained in paragraphs 5, 6, 7, 11 and 12 of the Statement of the Defence.

As the pleadings were later on amended, it will be sufficient at this stage merely to say that the 1st Defendant relied on the following:

1.The State Creation and Transitional Provisions Act No. 17 of 1977

2.Tribunals or Inquiries (Validation) Act No. 18 of 1977

3. The Constitution (Basic Provisions) Act No. 32 of 1975,
4. Section 6(6)(d) of the 1979 Constitution to show that:

(a) “No question as to the validity of the Determination of Certain Interests in Lands Law 1976 can be entertained by any Court of Law in Nigeria.

(b) The 1976 Law and Order are not inconsistent with the 1963 Constitution.

(c) Section 6(6)(d) of the 1979 Constitution “precluded the courts from entertaining the subject matter of this suit being an action or proceedings relating to an existing law made after 15th January 1966 for determining the competence of the then Military Governor of Lagos State to promulgate or make the Determination of Certain Interests in Lands Law 1976.”

From the above, it was quite clear that the jurisdiction of the trial court to entertain the plaintiffs claim was challenged. It directly became an issue from the word go. When a court’s jurisdiction is thus challenged in a Statement of Defence, I think it is neater and far better to settle the issue one way or another before proceeding to the hearing of the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been.

The reason is that a defect in competence is not intrinsic to, but rather, it is extrinsic to the adjudication; see Madukolu and Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at p. 595. The 1st Defendant did file at p. 26 a Motion on Notice for an order to set down, the point of law raised in paragraph 13 of its Statement of Defence (that is all the Acts pleaded that ousted the jurisdiction of the court), “for hearing and disposal off forthwith before the trial of the issue of facts in this action.” That Motion was dated 20th day of March, 1986. The ruling was delivered on the 29th April, 1986 see pp. 62 to 95 of the record. At p. 93, the learned trial Judge ruled, inter alia, “that evidence shall be led on the matters pleaded by the parties before trial of any question of law which arises on the pleadings as to whether or not this court has jurisdiction to adjudicate and determine the plaintiffs action”.

An attack on jurisdiction is no doubt a question of law. It is a question of law, but it is much more than that. It is a question of competence. It is the power and authority of a court to proceed to hear and determine the particular case before it. Jurisdiction exists:

(a) When the court has cognizance of the class of cases involved;

(b) Proper parties are present; and

(c) The point to be decided is within the powers of the court.

In Madukolu v. Nkemdilim supra, the concept though the same, different classification was adopted viz:

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

All the six points mentioned above are necessary to found jurisdiction. I will however dwell on (c) and (2) above.

It is essential for jurisdiction that the point to be decided is within the power of the court. The emphasis is on the expression “power” for jurisdiction is sometimes defined as the power of the court to entertain the pending action.

Courts are creatures of Statute. All our superior courts of record are created and invested with defined jurisdiction by our Constitution. Other laws may extend such jurisdiction. Similarly the Constitution or other laws may, in certain cases or class of cases, also abridge, constrict or even oust such jurisdiction of a court which formerly existed. Ouster of jurisdiction is thus a condition which exists when a court which once had jurisdiction over a matter ceases to retain that jurisdiction. There is no doubt that the subject matters of the plaintiffs claim in this case (i.e. Declaration, Injunction, Account) should normally be within the jurisdiction of the State High Court. The radical issue in this case will be whether or not that jurisdiction has been ousted by the different Acts and Laws pleaded by the Defendant/appellant

On the 9th day of May, 1986, Chief Williams, S.A.N., withdrew the action against the 2nd and 3rd Defendants and added “I will proceed against the 1st Defendant alone in this action.” There upon the court made the following Order “Court: I hereby make an Order striking out the 2nd and 3rd Defendants as parties in this action.

The court further ordered that –

“(a) An Amended Writ of Summons and an Amended Statement of Claim shall be filed and served by the Plaintiff within 4 days from today…

(b) An Amended Statement of Defence shall be filed and served by the 1st Defendant within 7 days thereafter”.

Normally, I would not in a judgment set down the pleadings en bloc. But in this case, where the main plank of the Defendant’s attack is based on certain Laws and Acts pleaded in answer to the plaintiff’s averments in his Statement of Claim, it might be helpful to set out each party’s case as pleaded. The plaintiffs Amended Writ of Summons at p. 98 of the record of proceedings reads as follows:

“Writ of Summons

Amended Endorsements

Amended This 12th Day of May, 1986 Pursuant to Order of court dated 9th of May, 1986

The Plaintiff claims against the Defendants jointly and severally:

(1) A declaration that notwithstanding the provisions of the Determination of Interests in State Lands Order 1976, he is the registered owner of each of the properties comprised in Title No. LO.7307 registered pursuant to the Registration of Titles Law;

(2) An account of all rents received by the Government of Lagos State and or any of its agencies from the land building comprised in the aforesaid titles and payment over to the plaintiff of the sum due after taking such account;

(3) Mesne profits;

(4) An injunction restraining the Government of Lagos State and any of its agencies as well as all officers, agents or servants of the said Government of Lagos State from trespassing or continuing to commit acts of trespass on the said properties of either of the said properties; and

(5) An order for the rectification of the Register of Titles by restoring the plaintiff as the registered owner of the land comprised in Title No. LO.7307 dated this 17th day of September, 1981”.

Although Chief Williams withdrew against the 2nd and 3rd Defendants and the Attorney-General of Lagos State was the sole and only Defendant, the plaintiff in this Amended Endorsement above still claimed “against the Defendants jointly and severally” .

On the 12th day of May, 1986, the plaintiff filed an Amended Statement of Claim as ordered by the trial court. I will hereunder set out the plaintiffs Amended Statement of Claim:

AMENDED STATEMENT OF CLAIM AMENDED THIS 12TH DAY OF MA Y, 1986 PURSUANT TO ORDER OF COURT

DATED 9TH OF MAY, 1986

1. The plaintiff was, at all times material to this action, the registered owner of the plot of land comprised in Title No. LO.7307 and his title was duly registered pursuant to the Registration of Titles Law. The said plot is hereinafter referred to as “disputed plot”.
2. Sometime in 1975, the Lagos State Government published in the National newspapers and subsequently in the Lagos State Gazette a statement to the effect that the disputed plots have been forfeited to the Government of Lagos State. The said statement was dated 12th September 1975 and was issued by the Military Governor.
3. By an Edict said to have been made on 24th day of March, 1976 the then Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict 1976 and published to make its operation retrospective. The said Edict is hereafter referred to as “the 1976 Edict”.
4. Section 1 of the 1976 Edict provides that if the Military Governor is satisfied that there has been any impropriety in the acquisition of any interest in any State Land by any person or that it is otherwise in the public interest so to do, he may, at any time up to 30.6.76 determine the interest in State Land of any such person by order published in the Gazette. The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Sections 22(1) and 31(1) of the Constitution of the Federation, 1963.
5. Prior to the publication pleaded in paragraph 2 of this Statement of Claim the Military Governor of Lagos State did not institute any tribunal of inquiry to ascertain how the plaintiff acquired his property.
6. If, which is denied, any inquiry was held, the plaintiff will contend that it was a sham of an inquiry and not a genuine one.
7. If, contrary to the contention of the plaintiff, the court should find that there was an inquiry, then the plaintiff states that such inquiry was illegal, unconstitutional and amounts to a nullity because the plaintiff was not given the opportunity of being heard contrary to the Rules of Natural Justice and to the provisions of Section 22(1) of the Constitution of the Federation, 1963.
8. By an Order said to have been made on the 11th day of May 1976 in exercise of the power conferred on him by Section 1 of the 1976 Edict, the Military Governor of Lagos State, inter alia, purported to determine the interest of the plaintiff in the disputed plot. The said Order (hereafter referred to as “the 1976 Order”) is published as L.S.L.N. No.9 of 1976 and cited as the Determination of Certain Interests in Lands Edict 1976 (No.3 of 1976).
9. The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal and null and void because the law under which it was made was unconstitutional and void.
10. If the court should hold that the 1976 Edict and the 1976 Order are valid and constitutional, the plaintiff states that there was absolutely no evidence available to the Military Governor capable of satisfying a reasonable tribunal, properly directed, that there had been any impropriety in the acquisition by the plaintiff of his rights, title and interest in the disputed plots.
11. The Government of Lagos State has, by itself and/or its agencies been receiving the rents and profits accruing from the said property or making use of the same for its (i.e. the Government’s own) benefit.

WHEREUPON the plaintiff claims as per the endorsements on the Writ of Summons.

DATED THIS 12TH DAY OF MAY 1986.”

On the 26th day of May, 1986, the Defendant, as ordered by the trial court, filed its Further Amended Statement of Defence as set out hereunder:

FURTHER AMENDED STATEMENT OF DEFENCE

Amended this 26th day of May, 1986 pursuant to the Order of Court dated the 26th day of May, 1986.

1. Save and except as is herein expressly admitted the Defendant denies each and every allegation of fact in the plaintiff’s Statement of Claim as if each were set out seriatim and specifically traversed.
2. The Defendant denies paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 of the Statement of Claim and put the plaintiff to the strict proof thereof.
3. The Defendant denies paragraph 1 of the Statement of Claim and put the plaintiff to the strict proof thereof.

4, The Defendant denies paragraphs 2,3,4,5,6,7,8,9, 10 and 11 of the Statement of Claim and aver, in answer thereto that the Military Administration which came into power in July 1975 decided, in the public interest to adopt a policy that a man should not own more than one plot of State Land at Victoria Island and not more than two plots in South West Ikoyi.

5. This policy of Government was made public by way of a Press release. The Defendant will rely on the Press release at the hearing of this action.
6. Pursuant to the said policy, the then Military Governor of Lagos State on the 11th day of August 1975 instituted a tribunal of inquiry by way of a Committee to inquire into the issue of Land holdings of State Land on Victoria Island and South-West Ikoyi and prepare and submit to him an analytical list of the names of persons holding land in Victoria Island and or South-West Ikoyi.
7. The Committee went into the most up-to-date register of State Land holdings in Victoria Island and South West Ikoyi and compiled an analytical list in accordance with the terms of reference given by the Military Governor.
8. The Committee submitted a report to the Military Governor of Lagos State made of the following:

(a) A comprehensive list of all allottees of State Land at Victoria Island Lagos.

(b) A comprehensive list of all allottees of State Land at South-West Ikoyi Lagos.

(c) 1. List of persons who acquired more than one plot of State Land at Victoria Island and/or South-West Ikoyi either by assignment or by direct allocation.

2. List of persons who have assigned their plots of State Land at Victoria Island or South West Ikoyi but have also acquired additional plots by assignment or by direct allocation.

(d) 1. A list of lessees of State Land at South-West Ikoyi Lagos who have acquired their interests by assignment.

2. A list of lessees of State land at South-West Ikoyi Lagos who held more than a plot of State Land.

(e) A comprehensive list of persons who have acquired plots of State Land at Victoria Island and South-West Ikoyi by assignment.

(f) A comprehensive list showing the number of plots of State Land acquired by sundry persons at Victoria Island and South-West Ikoyi, Lagos.

(g) A list of plots of State Land acquired by Mr. Justice L.J. Dosunmu at Victoria Island and South-West Ikoyi, Lagos.

9. The report showed that the plaintiff held more than one plot of State Land on Victoria Island and one plot of land in South West Ikoyi.
10. The lists made by the Committee were published in various Newspapers in the month of September 1975. The Defendant will rely on the report of the

Committee, the various lists made by the Committee, the Newspaper Publications of the said lists at the trial of this action.

11. In implementation of the report of the Committee, the Military Governor of Lagos State on the 24th day of March 1976, promulgated or made the Determination of Certain Interests in Lands Edict No.3 of 1976 determining the interest of the plaintiff in the State Land comprised in title No. LO.7307.
12. In implementation of the report of the Committee and consequent upon the promulgation of the Determination of Certain Interests in Lands Edict No. 3 of 1976, the Registrar of Titles, effected the necessary changes in the proprietorship Register at the Lands Registry in Lagos.
13. The Defendant will contend at the trial of this case that:

(i) The Determination of Certain Interests in Lands Edict No.3 of 1976 and the instruments titled “Determination of Interests in State Lands Order 1976″ made there under by the Military Governor of Lagos State are Edict and subsidiary legislation respectively within the meaning of Section 2 of the States (Creation and Transitional Provisions) Act, No. 17 of 1977.

(ii) That the Committee appointed by the Military Governor of Lagos State referred to in paragraph 4 hereof is a tribunal of inquiry within the provisions of the Tribunals of Inquiry (Validation etc.) Act, 1977.

(iii) That under and by virtue of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Act No. 28 of 1970, this action as instituted by the plaintiff was not maintainable against the Defendants before the 30th day of September, 1979 when Sections 22 and 31 of the Constitution of the Federation 1963 were in operation.

(iv) That since the 1st day of October 1979, the provisions of the Constitution of the Federal Republic of Nigeria 1963 are no longer applicable in Nigeria under Section 1 of the Constitution of the Federal Republic of Nigeria 1979.

(v) That this action as instituted by the plaintiff being an action or proceedings relating to or for determination of an issue or question as to the competence of the Military Governor of Lagos State to make or promulgate the Determination of Certain Interests in Land Edict, 1975 and the Order made there under is not maintainable in any court under section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.

(vi) That the Military Governor who determined the Plaintiff’s interest in the State Land No. 272 comprised in Title No. LO.7307 was a public officer and as such the plaintiff’s action is statute barred.

(vii) That the Determination of Certain Interests in Lands Edict No. 3 of 1976 was validly made.

(viii) That the determination of the plaintiff’s interest in the property comprised in Title No. LO 7307 was validly done.

(ix) That this action cannot be based on the contravention of any part of Chapter III of the Constitution of the Federal Republic of Nigeria 1963.

(x) That the Plaintiff’s action is misconceived, frivolous and a gross abuse of the process of this court.

Whereof the Defendant say that the claim as per the writ of summons would not avail the Plaintiff and should be dismissed with substantial costs. Dated at Ikeja this 28th day of May 1986.

Sgd. O. T. OKUWOBI (MRS.)

Principal State Counsel

Solicitor to the Defendant

Ministry of Justice

The Secretariat,

Alausa Ikeja.”

I have taken the unusual step of reproducing in this judgment the pleadings of the parties because the facts therein pleaded (which are in the main not in dispute) will frame the issues for consideration and decision by the courts. Of late very many pronouncements of this court had been cited out of their proper con –

that is without any reference at all to the facts either as pleaded or as found and again without any reference to the peculiar circumstances of those cases. In discussing whether in this case the court’s jurisdiction has been ousted, one will invariably be confronted with many of our past decisions and it will be necessary to consider each decision with reference to the facts that framed the issues therein before applying it to the facts and peculiar circumstances of the present case.

Now how did courts below deal with the crucial issue of jurisdiction At p.159 of the record of proceedings, the learned trial Judge held:

“The main conclusions I have arrived at in this case are that:

(a) this court has jurisdiction under Section 236 of the Constitution of the Federal Republic of Nigeria 1979, as amended, to adjudicate upon and determine the plaintiffs action herein, and

(b) that the impugned Edict of 1976 and the impugned Order of 1976 are unconstitutional, null and void and of no effect”.

Having declared The Determination of Certain Interests in State Lands Order 1976 (L.S.L.N. No.9 of 1976) and The Determination of Certain Interests in Lands Edict No.3 of 1976 unconstitutional, null and void, the learned trial judge then concluded at p. 194 of the record as follows:

“The Plaintiffs action therefore succeeds and I grant him the following reliefs against the 1st Defendant, that is to say

Part A

(i) A Declaration that the Determination of Certain Interests in State Lands Order 1976 (L. S. L. N. No.9 of 1976) is unconstitutional, null and void and of no effect

whatsoever;

(ii) A Declaration that the Determination of Certain Interests in Lands Edict 1976 is unconstitutional null and void and of no effect whatsoever.

(iii) A Declaration that the Plaintiff is still the registered owner of each of the properties comprised in Title No. LO.7307 registered pursuant to the Registration of Titles Law;

(iv) An Order for an Account of all rents received by the Government of Lagos State from the properties comprised in the said Title No. LO.7307 from

the 22nd day of September, 1975 up to the date of this judgment, and payment over, in the following terms:

(a) ……………….

(b) ……………….

(c) ……………….

(d)……………….

(v) An Order of Mandatory Injunction that the 1st Defendant and the Government of Lagos State shall forthwith yield up possession to the Plaintiff of each of the properties comprised in Title No. LO. 7307………

(vi) An Order of Perpetual Injunction restraining the 1st Defendant and the Government of Lagos State by themselves or their servants or agents or otherwise howsoever from committing any further acts of trespass on the said landed properties.

Part B

2. I however enter judgment for the 1st Defendant against the plaintiffs claim for Mesne Profits as that claim is inconsistent with the claim for an account which I have already granted.
3. I enter judgment for the 1st Defendant dismissing the Plaintiff’s claim for rectification of the Register of Deeds in respect of the Title.”

The Defendant dissatisfied and aggrieved then appealed to the Court of Appeal Lagos Division: The grounds of appeal at pages 212 to 214 attacked the jurisdiction and competence of the trial High Court to adjudicate over the plaintiffs claim in spite of the provisions of:

(i) Section 6(6)( d) of the 1979 Constitution.

(ii) The Tribunals of Inquiries Validation etc., Decree No. 18 of 1977.

(iii) Section 4(2)(b) of the Tribunal of Inquiries (Validation etc.) Decree No. 18 of 1977.

The Court of Appeal (coram Akpata, Babalakin and Awogu, JJ.C.A.) held inter alia at p. 368 of the record per Akpata, J.C.A.:

“Having regard to the conclusions I have reached in the various issues that have arisen in this appeal, the appeal in the main fails, and it is dismissed.”

I will deal with those “various issues” when I consider the Grounds of Appeal to the Supreme Court filed by the Defendant/appellant. But is it significant to note that the Court of Appeal per Akapata, J.C.A., at p. 369 held:

“However, the declaration made by the learned trial Judge that:

(a) the Determination of Certain Interests in State Lands Order 1976, and

(b) the Determination of Certain Interests in State Lands Edict 1976, are unconstitutional, null and void and of no effect whatsoever is hereby set aside for lack of competence on the part of the learned trial Judge to make such declaration”

The above is an acceptance by the Court of Appeal that the learned trial Judge lacked the jurisdiction – call it competence – to declare that the 1976 Edict and the 1976 Order are unconstitutional, null and void. This is dangerously very near the contention of the Defendant/appellant all along, i.e. that the courts have no competence not only to declare the 1976 Order and Edict unconstitutional (here the Court of Appeal agrees) but also to even entertain any suit that will result in that declaration being made (here the Court of Appeal disagrees with the Defendant/appellant).

The next significant and rather intriguing statement in the lead judgment of Akpata, J.C.A., at p. 369 is as follows:

“The position is that, shorn of its implied ‘one man one plot’ policy, which is wrapped up in the phrase ‘otherwise in the public interest so to do’, the 1976 Edict as it stands is a perfect piece of legislation”.

My fear here is whether courts of law have the competence to pass “value judgment” on an issue of policy. Lord Parker, when Lord Chief Justice, put it this way:

“In modern Britain, where no agreement exists on the ends of society and the means of achieving those ends, it would be disastrous if courts did not eschew the temptation to pass judgment on an issue of policy. Judicial self preservation may alone dictate restraint” (Recent Developments in the Supervisory Powers of the Courts over Inferior Tribunals (1959) 27-28).

Also de Smith in his Judicial Review of Administrative Action 4th ed. at p. 33 wrote:

“Judges did of course, pass judgment on issues of ‘policy’ from time to time but the simplest way of passing judgment on such an issue was to defer to the opinion being advanced by the Executive”

The uncontroversial evidence of Taiwo Oseni Folami called as D.W.1 (at p. 131 of the record) was inter alia as follows:

“Question: What was the Policy of the Government of Lagos State on Lands Holding in Victoria Island and Ikoyi as at August/ September 1975

Answer: At that time the Policy of the Lagos State Government was that no individual should hold more than one plot of State Land at Victoria Island and not more than two plots at South- West Ikoyi, irrespective of whether or not such plots were acquired by direct allocation or by transfer or assignment. . . . . . ” Commenting further on the above Policy, Akpata, J .C.A., continued, still, at p. 369:

“In effect where there was impropriety in the lease of State Land such as by misrepresentation, deceit or illegality, the 1976 Edict correctly meets the situation” But the Lagos State Government’s point of view as pleaded in paragraph 4 of its Further Amended Statement of Defence was that from the date of the coming into effect of its new Lands Policy, it would be improper for any one person to own more than one plot of State land in Victoria Island or more than two plots in South-West Ikoyi since the one man one plot policy was “in the public interest”. Since, as Lord Parker observed, no agreement exists on the ends of society and the means of achieving those ends, one cannot dismiss off hand the Land Policy of the Lagos State Government. It is the duty of the courts to recognise and trust the discretion of the Lagos State Government:- Sparks v. Edward Ash Ltd. (1943) 1 K.B. 223 at bottom of p. 229. If the learned Justices of the Court of Appeal deferred (as they should have done) to the opinion of the Lagos State Government expressed and advanced in its Lands Policy, it would then have found the 1976 Edict and Order (to use the very words of Akpata, J.C.A.) “a perfect piece of legislation”. The Court of Appeal’s “value judgment” on the Lands Policy of the Lagos State clearly colored its approach to the vital issue of the jurisdiction and competence of the Lagos State High Court to entertain the plaintiff/Respondent’s claims.

Now having lost, again, in the Court of Appeal, the Defendant/appellant, has now appealed to the Supreme Court. Several issues were raised both in the Briefs of learned counsel and in oral arguments in elaboration of points made in those Briefs. I will, however, deal, first of all, with the Issue of the Competence of the trial court to hear the plaintiff’s case. It will certainly be putting the cart before the horse to consider any other issue without a resolution one way or another of the primary, vital and radical issue of jurisdiction.

Issue No.9 as formulated in the appellant’s Brief is as follows:

“9. Whether or not the Court of Appeal was right when it confirmed the judgment of the trial court in rejecting the defence of the appellant on the lack of jurisdiction of the court on account of the ouster clauses contained in the following enactments:

(i) Section 6(6)( d) of the 1979 Constitution

(ii) States (Creation and Transitional Provisions) Decree No. 17 of 1977.

(iii) Tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977. (iv) Federal Military Government (Supremacy and Enforcement of Powers) Act No. 28 of 1970.

I will consider the appellant’s Issue No.9 along with Respondent’s Issue No.1 formulated as follows:

1. Was the 1976 Edict validated by the Tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977

Court of Appeal’s View of the 1976 Edict:

At p. 348 of the record of proceedings, the Court of Appeal dealt with the impact of Regulation 3 of the 1976 Order which purported to revoke the Notice Ex. P2 determining the plaintiff/Respondent’s interest in the plot now in dispute and held:

“I am in full agreement with Mrs. Akinsanya. It is crystal clear from Section 13 of the 1976 Edict that the Notices had been validated and the ‘one man one plot’ policy had been given the force of law by an Edict”.

And at p. 349 the Court of Appeal continued:

“Section 13 accordingly gave a stamp of validity to Ex. P2……… The true legal position however is that, on the face of it, by the combined effect of Exhibit P2 and other notices and Section 13 of the 1976 Edict the interest of the Respondent in Plot 272 at Victoria Island was determined because he had another plot, that is, plot 134 registered as Lo. 5257 at Victoria Island.”

There was no cross appeal by the plaintiff/Respondent against the above finding by the Court of Appeal.

I now come to the crucial question, was the 1976 Edict validated by the Tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977 Section 1 of this Decree was meant to validate “any tribunal of inquiry (however described or constituted) instituted by the appropriate authority in a State on or after the commencement of this Decree (which was the 29th July 1975 and the 30th September 1977”. The commencement date of the Determination of Certain Interests in Lands Edict 1976 was retrospectively put as 12th September 1975. Obviously the date 12th September 1975 comes between 29th July 1976 and 30th September 1977. Edict No.3 of 1976 otherwise known as the 1976 Edict was therefore validated by the Tribunals or Inquiries (Validation etc.) Decree No. 18 of 1977. It is this same Edict that the Court of Appeal found at p. 349 “gave a stamp of validity to Ex. P2”. It is “the combined effect” of Section 13 of this same Edict and Ex. P2 that the Court of Appeal found at p. 349 determined the interest of the plaintiff/Respondent in and over plot 272 registered as LO. 7307 – the subject matter of the present action. As I observed earlier on, there is no cross-appeal by the plaintiff/Respondent against the above findings of the Court of Appeal. One has therefore to accept that the Committee chaired by D.W.1 set up on the 11th August 1975 has been validated by Decree No. 18 of 1977.

From yet another angle, the Tribunal or Commission or Committee headed by D.W.1, according to D.W.1’s evidence at p. 131 lines 15-30 of the record was set up on the 11th day of August 1975 by the Military Governor of Lagos State. This Committee was definitely set up after the commencement date of the tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977. Mr. Folami’s (D.W.1) Committee was therefore validated by Decree No. 18 of 1977. By Section 1 of the Validation Decree No. 18 of 1977 above, the Folami Committee “shall be deemed to be validly instituted or constituted”. For the implementation of the Report or Recommendations of the Folami Committee, the Lagos State Government issued the Determination of Certain Interests in Lands Order 1976 (effective from the 12th September, 1975) after the commencement date of Decree No. 18 of 1977 which was 29th July 1975. By Section 2(a) of Decree No. 18 of 1977, the 1976 Order being a “subsidiary instrument respecting the forfeiture” of plot 272 registered as LO. 7307 “shall be deemed to have been validly made … and shall have full effect in accordance with its tenor”.

It is important to note that what is being validated by Decree No. 18 of 1977 is the tribunal of inquiry however described and “any act or thing done by the appropriate authority in respect of the implementation of the report of such inquiry or tribunal” (here the 1976 Order). Another very important and very relevant provision of Decree No. 18 of 1977 is its Section 3(2) which stipulates

“3-(2) Without prejudice to the foregoing provisions of this Decree Chapter III of the Constitution of the Federation is hereby suspended for the purposes of this Decree and no question whether any provision thereof has been, or is being or would be contravened by anything done or proposed to be done in pursuance of this Decree shall be inquired into in any court of law and accordingly Sections 115 and 117(2)(d) of that Constitution shall not apply in relation to any such question” .

Both the High Court and Court of Appeal discussed the alleged conflict between certain sections of the 1976 Edict and the 1963 Constitution. Akpata, J.C.A., at p. 363 noted:

“Even if the Edict and the Order can be said to have been validated, they are null and void to the extent that they are inconsistent with the 1963 Constitution or any Decree and the court can so declare”.

At p. 368 of the record, Akpata, J.C.A., continued:

“However the termination of the interest of the Respondent in plot 272 is null and void and of no effect whatsoever for three reasons:

(1) Section 6 of the 1976 Edict is in breach of and inconsistent with Section 31(1)(a) of the 1963 Constitution for failure to provide for payment of adequate compensation.

(2) Therefore determining the Respondent’s interest in the plot on the basis of the “one man one plot” policy infringes Section 31(2)(b) of the 1963 constitution in that it adds to the circumstances in which property may be acquired compulsorily.

(3) Section 4 of the 1976 Edict offends Section 31(2)(b) in that its provision falls outside the purpose for which land may be acquired compulsorily. Awogu, J.C.A., at p. 371 added in support:

“There is of course no doubt that Edict No. 10 (Sic) of 1976 was an existing law as Akpata, J.C.A., has shown, but Sections 4 and 6 thereof were unconstitutional in so far as they infringed the provisions of Section 31 of the 1963 Constitution”.

It is obvious from the above extracts from their judgments that the Hon. Justices of the Court of Appeal, with the greatest respect, totally ignored the provisions of Section 3(2) of the Tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977 (which I set out above). That Section suspended Chapter III of the 1963 Constitution which Chapter contains Section 31 and further provided that “no question whether any provision thereof has been, or is being, or would be contravened by anything done or proposed to be done in pursuance to this Decree shall be inquired into in any Court of Law.” The 1976 order, as I pointed out earlier on, will stand on Decree No. 18 of 1977 or on the 1976 Edict which as I have shown earlier on had been validated by Decree No. 128 of 1977. In considering the validity of the forfeiture of the plaintiff/Respondent’s plot 272 registered as LO. 7307, the courts will not refer to Chapter III of the 1963 Constitution which had been suspended by Section 3(2) of Decree No. 18 of 1977. The two courts below were, with respect, wrong in holding the 1976 Edict unconstitutional for alleged contravention of Section 31 of the 1963 Constitution. They had no jurisdiction to so declare, their power having been taken away by Section 3(2) of Decree No. 18 of 1977.

The other Decree relied upon by Mrs. Akinsanya was the States (Creation and Transitional Provisions) Decree No. 17 of 1977. At p. 364 of the record of proceedings, Akpata, J.C.A., observed:

“It is obvious that this Decree was necessary to bring sanity to an otherwise confused state of affairs following the creation of 19 States on 3rd February 1976.

As Chief Williams rightly pointed out, this Decree was not applicable to States such as Bendel and Lagos State from which no State was carved out. ”

The above, with respect, does not appear to be the correct legal position for Section 2 of Decree No. 17 of 1977 dealing with “Validation of Certain Edicts, subsidiary legislation and executive acts” stipulated as follows:

“2-(1) Notwithstanding anything to the contrary in the Constitution (Basic Provisions) Decree 1975 and any other enactment

(a) All Edicts and subsidiary legislation made at anytime between the commencement of the principal Decree and 30th April 1976 on behalf of or in the name of any State created under that Decree by the Military Governor,

Executive Council, Commissioner or public officer of a former State; and

(b) ……. Shall be deemed to have been validly made or done by the Military Governor, Executive Council, commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contract, executive or judicial act or as to the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid shall be inquired into by any court of Law” (italics mine for emphasis on the scope of the Decree).

Now the principal Decree referred to above is, of course, the States (Creation And Transitional Provisions) Decree No. 12 of 1976. This Decree was “made at Lagos this 10th day of March 1976.” and given a commencement date of 3rd February 1976. Therefore the expression “any time between the commencement of the principal Decree and 30th April 1976” will mean any period between 3rd February1976 and 30th April 1976. It is here important to note that there is a distinction between the date an Edict was made (was signed into law) and its commencement date. That is the reason why I underlined the word “made” used in section 2(1)(a) of Decree No. 17 of 1977.

Now the Determination of Certain Interests in Lands Edict No.2 of 1976(the 1976 Edict) was “Made at Lagos this 24th day of March 1976” and signed by Captain Adekunle S. Lawal (NN), Military Governor of Lagos State. The 1976 Edict was therefore made between 3rd February 1976 and 30th April 1976. The next crucial question is – What were the States “created under ‘that Decree’ i.e. the principal Decree” The answer is supplied by Section 1 of that Decree which stipulates:

“1. There shall on the commencement of this Decree be created States to be known by the names in Column 1 of the Schedule to this Decree the respective areas of which shall be those provinces, divisions, or districts named in Column 2 of that Schedule and the capitals of which shall be those respectively named in Column 3 of that Schedule” (italics mine).

In the Schedule referred to above, one of the States created by Decree No. 12 of 1976 the principal Decree is Lagos State with an area comprising Badagry, Ikeja, Lagos, Ikorodu and Epe and with Ikeja as capital. It is therefore legally wrong to hold that Decree No. 17 of 1977 is not applicable to Lagos. It is applicable, for Lagos State is one of the States created under the principal Decree. The Decree No. 12 of 1976 itself, says that Lagos State is one of the States it created.

Decree No. 17 of 1977, by its Section 2(1)(a) precluded any court of law from inquiring into the validity of the 1976 Edict or into any act done under the Edict such as the forfeiture of plot No. 272 registered as L.O. 7307.

Mrs. Akinsanya was here batting on a very strong wicket. The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of the superior court but that which specifically appears to be so. It is true that the powers of the courts are great, they are however not unlimited. They are limited by any ouster clause. In these days that a Decree has supremacy even over the Constitution (see the Federal Military Government (Supremacy etc.) Decree No. 28 of 1970), any clear and specific ouster in a Decree as in Section 2(1)(a) of Decree No. 17 of 1977 has to be seriously considered and religiously obeyed. It is the duty of the courts to expound their jurisdiction but it is no part of our duty to expand our jurisdiction. That will require legislation. The best advice here is that given by Rigby, L.J. in Re Watkins (1896) L.R.2C.D. p. 339 that “we ought not to overstep our jurisdiction because we think it might be advantageous so to do”.

I agree with Mrs. Akinsanya that Section 2(1)(a) of Decree No. 17 of 1977 totally robbed the courts of jurisdiction to entertain the plaintiff/Respondent’s claim.

I will now deal with yet another hurdle for the plaintiff/Respondent to clear before his case can be adjudicated upon and determined by our courts. He has to show that the court has jurisdiction in spite of the provisions of Section 6(6)( d) of the 1979 Constitution. I agree with the learned trial Judge Balogun, J., that the 1979 Constitution by its section 236 conferred on State High Courts “unlimited jurisdiction”. But the self same Section 236(1) (of the 1979 Constitution) is expressly stated to be “subject to the provisions of this Constitution”. One such provision is Section 6(6)(d) which stipulates:

“S. 6(6)

The judicial powers vested in accordance with the foregoing provisions of this section (d) Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to an existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law” By Section 6(6)(d) above, any power or competence which was given to State High Courts by Section 236 of the 1979 Constitution, is conditional on there still existing a residue after discounting the power removed by that Section (S.6(6)(d). Also S.6(6)(d) embraces the period 15th January 1966 to 1st October 1979.

The 1976 Edict by Section 274(4)(b) qualifies as an existing law. The 1976 Edict is therefore one of the laws envisaged by section 6(6)(d).

The main claim of the plaintiff/Respondent is for a Declaration that, notwithstanding the 1976 Order based on the 1976 Edict, he is still the owner of properties comprised in Title No. Lo.7307. It is also correct that the 1976 Order being a statutory instrument is also an existing law. The declaration sought is an indirect attack either on the 1976 Edict or the 1976 Order. By paragraph 4 of his Amended Statement of Claim “The Plaintiff will contend at the trial that the provisions of section 1 of the 1976 Edict are unconstitutional, null and void”. In paragraph 9 of the Amended Statement of Claim, the Plaintiff attacked the 1976 Order (another existing law) as “illegal and null and void because the law under which it was made was unconstitutional”. I, earlier on set out in detail the Amended Statement of Claim because every paragraph therein constituted a challenge to the competence of the Lagos State Military Government to forfeit the properties comprised in Title LO. 7307 via the 1976 Edict and the 1976 Order. It is also a challenge to the validity of both the Edict and the Order, for if the 1976 Edict and 1976 Order are both valid, they would have effectively determined the plaintiff/Respondent’s interest in Title No. LO.7307. In a recent case of Joseph Mangtup Din v.Attorney-General of the Federation (1988) 4 N. W. L. R. (Pt. 87) 148 at p.171 this court held that an indirect challenge to the validity of Act No. 58 of 1970 forfeiting the appellant’s property “falls well within the ambit of the provisions of Section 6 subsection (6)(d) of the 1979 Constitution.

Courts guard their jurisdiction zealously and jealously. And that is how it should be. But if, in any given case that jurisdiction has been ousted by the provisions of the Constitution or a Decree (Act), then the path of constitutionalism will dictate a willing compliance with the ouster clauses. In this case he combined effect of:

(i) Decree No. 18 of 1977 which validated any act (here the forfeiture of Plaintiffs plot) done by the appropriate authority (the Governor of Lagos State) in respect of the implementation of the Folami Committee or tribunal and which suspended Chapter 3 of the 1963 Constitution and with it its Section 31 thereof.

(ii) Decree No. 17 of 1977 which validated the 1976 Edict further provided that no question as to the validity of any executive act (here the forfeiture of the plaintiff/Respondent’s plot now in dispute by the Military Governor) etc “shall be inquired into by any Court of Law.”

(iii) Section 6(6)(d) of the 1979 Constitution which drastically limited the unlimited jurisdiction conferred on the State High Court by Section 236 of the self same Constitution is that the trial Court had no jurisdiction to try the plaintiff/Respondent’s case. Its judgment given without jurisdiction cannot be allowed to stand. The same is hereby set aside.

The Court of Appeal on its part was wrong in not allowing the Defendant/ appellant’s appeal solely on the ground of lack of jurisdiction in the trial court. Its own appeal judgment was also delivered without jurisdiction. That, too, will not be allowed to stand. The appeal judgment and orders of the Court of Appeal Lagos Division are also hereby set aside.

In the final result, the Defendant/appellant’s appeal succeeds and the same is hereby allowed. There will be costs against the plaintiff/Respondent in favour of the Defendant as follows:- .

(i) in this court…….N500……………..

(ii) in the Court of Appeal ……………….N300……..

(iii) in the High Court ……………..N200………….

Sister Cases:

The trial court at p. 196 of the record proceeded to “pronounce similar judgment as in this case in each of the Sister Cases herein in accordance with the consent given in that behalf by learned counsel for the parties in those sister cases”.

Now that I have held that the trial court had no jurisdiction to hear the test case, then any pronouncement in the “Sister Cases” was made without jurisdiction.

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SC.257/1988