The Attorney General Of The Mid-western State V. Chief Sam Warri Essi (1977)
LawGlobal-Hub Lead Judgment Report
IDIGBE, J.S.C
In this action the plaintiff, who is now dead, was Chief Sam Warri Essi. After his death shortly after this appeal was entered, the present respondents – Anthony Obukowho Essi Edeso and one other person – were substituted for the plaintiff. The defendant is the Attorney General of the former Mid-Western (now Bendel) State. We have before us an appeal by the defendant from the Judgement of Ephraim Akpata J. dated the 6th day of November, 1974, in favour of the plaintiff by which it was ordered as follows:
“The purported take-over of educational institutions in the state is not in accordance with law. This action, however, is only in respect of Essi College, Warri and the declaration of invalidity in this Judgement would, therefore, be limited to Essi College. The plaintiff ex debito Justice, is entitled to the declaration sought.
It is, therefore, hereby adjudged that the purported transfer and vesting of Essi College, Warri to the Government of Mid-Western State of Nigeria by virtue of the Education Edict 1972 is invalid. And it is hereby ordered that the Government of the Mid-Western State of Nigeria or any one acting by authority or order of the said Government is hereby restrained from interfering with the plaintiff’s rights and interests therein in purported execution of the powers conferred by Section 33(1) of the Education Edict. This order is to be effected within sixty days.
For the avoidance of doubt, this court has not declared invalid the Education Edict 1972 in its entirety, only to the extent of its inconsistency with the provision of the Constitution (Suspension and Modification) Decree No 1 of 1966, and therefore with the provision of Section 31 of the Constitution of the Federation …
It is unnecessary to make any pronouncement in respect of the alternative claim, having regard to the order made above.”
The above judgement is a sequel to the plaintiff’s action in which he claims from the defendant:
“(1) A declaration that the purported transfer and Vesting of the Plaintiff’s school, Essi College Warri to the Mid- Western State of Nigeria by virtue of the Education Edict 1972 is invalid and contrary to the Constitution of the Federation.
(2) An order restraining the Government of Mid-Western State of Nigeria or anyone acting by authority or order of the said Government from taking possession of the said school or interfering with the plaintiff’s rights and interests therein in purported execution of the powers conferred by section 39( 1) of the Education Edict 1972
in the alternative:
The plaintiff claims from the Government of the Mid-Western State of Nigeria the sum of N1,200,000 (one Million two hundred thousand Naira) being compensation for the compulsory acquisition of the plaintiffs property – the Essi College, Warri!”
The Education Edict 1972 referred to in the claim set out above is, the Education Edict 1972 issued by His Excellency the Military Governor of Mid-Western State of Nigeria (hereafter referred to as “the Military Governor”) as Edict No 5 of 1973 and which came into force on the 1st day of April, 1973. At the close of pleadings filed and delivered by the parties hereto in the High Court of the Mid-Western (now Bendel) State holden at Warri (hereinafter referred to as the “lower court” or the “trial court”) it was clear that the real questions to be decided in that court were:
(1) Was the plaintiff the owner of the school, Essi College Warri
(2) Are the provisions of Sections 39, 40 & 41 of Part VIII of the Education Edict 1972 aforesaid (hereinafter referred to simply as “the Education Edict 1972”) inconsistent with a Decree or the constitution of the Federation, and if so is the said Edict invalid to that extent
(3) is the plaintiff entitled to the declaration, order and claim he seeks in this action
We think it is necessary at this stage to set out some of the essential paragraphs in the pleadings delivered by the parties; and these in our view are paragraphs 1, 4, 5, 6, 7 & 8 of the statement of claim and paragraphs 4, 9, 10,12,13 & 14 of the statement of defence. They read as follows:
Statement of Claim
“(1) The Plaintiffis the proprietor of Essi College, Warri …
“(4) By section 39 of the said Edict (i.e. the Education Edict 1972) the
Government purported to transfer and vest in the state every institution in the state with effect from 1st April 1973 and provided as follows:-. ………
(5) Section 40(1) of the Education Edict provided for payment of Compensation
(6) The said Edict made no provision giving a person claiming compensation a right of access for the determination of his interest and or the amount of compensation to the High Court as provided by section 31(1)(b) of the Constitution of the Federation.
(7) The said Edict in its section 41(1) provided for a compensation Committee with functions “inter alia” to determine the amount of compensation to be paid to a proprietor in respect of the property rights or interests “transferred and vested in the State by virtue of the Edict”
(8) The plaintiff will contend…….
(i) that the compensation Committee is not a court or tribunal envisaged in section 22(1) of the Constitution of the Federation and has no power to determine the plaintiffs civil rights.
(ii) that section 41(4) of the Edict is inconsistent with section 22(1) of the Constitution of the Federation and is null and void.
(iii) that the whole of part VIII of the Education Edict 1972 is ultra vires the Government, and is inconsistent with the Constitution of the Federation and is null and void”
“Statement of Defence.
(4) In answer to paragraph 6 of the statement of claim the defendant will contend at the trial that the Education Edict 1972 makes provisions for adequate Compensation and gives the plaintiff a right of access to the High Court for the determination of his interest in the property and the amount of compensation.
(9) In answer to paragraph 8(1) of the statement of claim the defendant will contend at the trial that the Compensation Committee set up under the provisions of the Education Edict 1972 is a tribunal…with powers to examine Claims for compensation put up by persons entitled to the same.
(10) In answer to paragraph 8(ii) of the statement of claim the defendant will contend at the trial that part VIII and Section 41(4) of the Education Edict 1972 is consistent with section 22(1) of the Constitution of the Federation.
(12) The defendant will further contend at the trial that by virtue of section 39(1) of the Education Edict 1972 Essi College Warri has been properly transferred to and vested in the Government of Mid-Western State of Nigeria.
(13) The defendant will contend at the trial that the plaintiff is not entitled to bring this action without (first) complying with section 41 of the Education Edict 1972.
(14) The defendant will also contend at the trial that the plaintiff is not entitled to compensation by virtue of section 40(3) of the Education Edict 1972. ”
At the hearing of this case in the lower court neither party called evidence but each relied on submissions on points of law; and at the close of the address of Counsel on both sides the learned trial Judge in a considered judgement was of the view that:
(1) “any Edict which is inconsistent with any section of the Constitution of the Federation not suspended by Decree No.1 of 1966 can be attacked and declared invalid, because by implication such an Edict is inconsistent with Decree No 1 of 1966”.
(2) some of the provisions of section 40(2) of the Education Edict 1972 “completely negate” the payment of “adequate compensation” to a proprietor of a school taken over by the State Government by virtue of the provision of Section 39 of the said Edict; and, in his view, these provisions are inconsistent with Section 31 (1)( a) of the constitution of the Federation.
(3) Section 41(4) of the Education Edict interferes with the right of the citizen (in this case, the proprietor of a school taken over by the State Government) to bring a claim in the High Court of the State for determination of the amount of compensation due to him. Accordingly, he held that the section 41(4) aforesaid is inconsistent with the express provisions of section 31(1 )(b) of the Constitution of the Federation.”
Being firmly of the views set out above it was only natural that the learned Judge came to the conclusion that it was necessary to make the orders which we had earlier on set out in this judgement. This appeal from the said judgement is by the defendant; henceforth he shall be referred to in these proceedings as the appellant and the plaintiff shall be referred to as the respondent. Altogether seven grounds of appeal were filed but only three of them were argued before us and these grounds read:
“(2) The learned trial Judge erred in law in that part of his Judgement where he held any Edict which is inconsistent with any section of the Constitution not suspended by Decree No 1 of 1966 can be attacked and declared invalid, because by implication such an Edict is inconsistent with Decree No 1 of 1966, when the basis of the claim before him was the Constitution of the Federation.
(4) That the Court below had no jurisdiction to declare part VIII particularly section 40(2) 41(1) 41(4) of the Education Edict 1972 invalid.
(5) That the learned trial Judge erred in law in holding that the take-over of Essi College, Warri or Part VIII and sections 40(2), 41(1), 41(4) of the Education Edict 1972 (Bendel State) were not in accordance or are inconsistent with law particularly sections 22(1) 31(1)(a), 31(1)(b) 31(2)(c) and 31(2)(d) of (sic) Constitution of the Federation, since the provisions of the law are not infringed.”
Although these grounds were argued separately the entire submissions and argument in support of these grounds may be summarised thus:
(1) That, by virtue of the provisions of Decree No 28 of 1970 – The Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (hereinafter referred to as “The Supremacy Decree”) which came into force on 9th May, 1970 no court in the Federation (i.e. the Federation of Nigeria) has any power or jurisdiction to pronounce an Edict invalid. This according to learned Counsel for the appellant is because the “exception clause” reserved in the Fourth Preamble to the Supremacy Decree specifically mentions “a Decree” and nothing else (certainly; it failed to mention “the Constitution”). In this respect, Counsel further submitted the “Exception clause” aforesaid differs from the provisions of sub-section 4 of section 3 of Decree No 1 of 1966 Constitution (Suspension and Modification) Decree 1966 (hereinafter referred to as “the 1966 Decree”).
(2) While it was possible before the Supremacy Decree for a court in the Federation – by virtue of the provisions of section 3(4) of the 1966 Decree – to pronounce an Edict invalid if parts of the Edict are inconsistent with “a law made by Parliament before January 1966” (and this includes the Constitution as modified by the 1966 Decree) the court could not pronounce an Edict in its entirety (as distinct from parts thereof), invalid because any order to that effect tantamounts to a challenge on the Competency of a State Government to make the Edict.
(3) Therefore although a Court prior to the Supremacy Decree (but not after it came into operation), could declare parts only of the Education Edict 1972 invalid (if it is found to be inconsistent with the unsuspended parts of the constitution) it could not properly or lawfully make such an order if the effect of such an order was to render the Edict, in its entirety, nugatory and ineffective. This submission which was rather feebly put was based on learned counsel’s peculiar understanding of Section 3(4) of the 1966 Decree, the provisions of which he contended enabled a court (prior to the Supremacy Decree) to declare invalid only parts, but not the whole of an Edict which are found to be inconsistent with a Decree or the unsuspended parts of the Constitution of the Federation. Accordingly, since, as learned Counsel claimed, the effect of declaring invalid all of Part VIII of the Education Edict 1972 was to render the entire Edict, ineffective the trial Court had no jurisdiction to make the order contained in its judgement of the 6th day of November 1972. Such an order can neither be supported under the provisions of Section 3(4) of the 1966 Decree nor under the provisions of the Supremacy Decree.
(4) In the alternative, learned principal state counsel, Mr D. K. Azinge appearing for the appellant, at the end of his argument submitted that the provisions of Part VIII of the Education Edict 1972 – particularly sections 40 & 41 are consistent with the provisions of Section 31 of the Constitution of the Federation.
Learned counsel for the respondents, Mr Kehinde Sofola contended that the unsuspended parts of the Constitution of the Federation were preserved as part of that Decree (No 1 of 1966) which kept them operative, and that although the expression “the unsuspended parts of the Constitution” (or, for that matter, the expression “the Constitution”) was omitted in the “exception clause” reserved in the Fourth Preamble to the Supremacy Decree the expression “the Decree” mentioned therein (i.e. in the “exception clause” aforesaid) must be read “to include the Constitution” (i.e. the operative parts retained by Decree No 1 of 1966). With reference to the argument put forward on behalf of the appellant that the effect of an order declaring part VIII of the Education Edict in 1972 invalid was a challenge to the competency of the State Government to make or promulgate such an Edict, the submission on behalf of the respondent was that such an order did not render the remaining parts of the said Edict, invalid in other words, the declaration as to invalidity must be confined to Part VIII of the Education Edict aforesaid and cannot, in the circumstances of this case, without doing violence to language, be stretched to include or affect the said Edict in its entirety. Learned counsel for the respondent, however, submitted that the provisions of sections 40 & 41 of the Education Edict 1972 are clearly in conflict and inconsistent with Section 31 of the Constitution of the Federation because, not only do they derogate from the right of the citizen, prior to January 1966, to “adequate compensation”, they make the conditions governing his entitlement “to any compensation or the amount thereof less favourable” to him. On the question whether the Supremacy Decree has taken away the rights of courts of this country to pronounce on the validity or otherwise of an Edict which is found to be in conflict with the Constitution of the Federation or “a Decree”, learned Counsel for the respondent submitted that the courts still possess the necessary jurisdiction to make such pronouncements. He then referred us to a few decisions of his court; and these include the cases of (1) Chief David Ereku v The Military Governor Mid- West State (1974)10 S. C.59 at 65 & 74. (2) E. C. Oyinke vs Eastern States Interim Assets & Liability Agency (1974)10 S.C 77 at 81-83, 86 & 88.
On the issue of the competency of a State Government to promulgate an Edict, learned counsel for the respondent readily concedes the contentions and submissions on behalf of the appellant that the question whether a State Government is competent to legislate or promulgate an Edict cannot be entertained by a court; but he submits that the court can inquire into the question whether the provisions of a particular Edict conflicts with those of a Decree or the Constitution of the Federation.
We pause to examine the provisions of the Education Edict 1972 with which the above contentions and submissions are concerned. These are sections 39, 40 and 41 of Part VIII of the said Edict which consists of only four sections. The only remaining section of Part VIII is section 42; and as it only provides for the application of the Public Officers Protection Law (Cap 106) to members of the Compensation Committee to be appointed under the provisions of section 41 of the Edict it has no relevance to the issues under consideration. We now set out the sections of the Edict referred to in the submissions and contentions aforesaid. Section 39(1) reads:
“39(1) Subject to the provisions of this Edict, there shall on the date of commencement of the Edict be transferred to and vested in the State by virtue of this Edict, every institution in the State, and, accordingly, there shall be transferred to and vest in the State as from the said date:
(a) all interests in or attaching to any premises used for the purposes of every local authority or voluntary agency institution or anything whatsoever forming part of a local authority or voluntary agency institution including any lands, building equipment, furniture, books and any other movable property whatsoever held or used in or in connection with any institution by the proprietor, trustees or administrators of such institution immediately before the commencement of this Edict; and
(b) all rights and liabilities to which any such proprietor trustees or administrators were entitled or subject immediately before the date of commencement of this Edict, being rights and liabilities acquired or incurred solely for the purpose of managing or otherwise carrying on the business of any such institution as is referred to in the last preceding paragraph or any part thereof …
40(1) Subject to this section, there shall be paid to the proprietor of every institution in respect of any property right or interest transferred to or vested in the State by virtue of this Edict, such adequate compensation based on the book value of the assets and liabilities of the institution and on such terms and conditions as may be agreed between the proprietor and the Government.
(2) Every case of compensation should be determined on its merits, taking into consideration the following circumstances:
(a) whether the proprietor is an individual or a community, a religious organisation or other society or body of persons;
(b) the amount or value of contribution, if any, made by persons or bodies other than the proprietor towards the cost of the buildings and equipment in the institution;
(c) the amount of any grant, if any, made by the State Government or any other Governments of the Federal Republic of Nigeria towards the cost of the buildings and equipment in, and of managing, the institution since it was opened;
(d) the purpose for which the Lands comprised in the assets was acquired by the proprietor;
(e) depreciation of the assets;
(f) any tuition, development, library and sports fees received by the proprietor;
(g) any tax exemption enjoyed by the proprietor by virtue of running the institutions;
(h) any other matters which might facilitate proper evaluation of the assets.
(3) Any proprietor entitled to a claim for compensation under this Edict shall not later than twelve months of the date of commencement of this Edict submit an application in that behalf in the prescribed form to the appropriate authority and every such application shall in so far as it relates to land, be accompanied with a survey plan of the land and the plans of any building or erections thereon.
(4) …
41(1) For the purpose of this part of the Edict, the Military Governor shall, as soon as may be after the commencement of this Edict, set up a Committee to be called the Compensation Committee (in this part referred to as “the Committee”) which shall consist of a Chairman and six other members.
(2) Every proprietor submitting a claim for compensation under this Edict may appear before the Committee for the purpose of enabling the Committee to effect proper determination of the compensation claimed and may for this purpose appear in person or by expert representation or both.
(3) The function of the Committee shall be:
(a) …
(b) …
(c) to entertain such other questions with regard to compensation as the appropriate authority may refer to it;
(d) to submit to the Military Governor through the appropriate authority a report of its findings as regards the matters referred to it and its recommendations as to the amount of compensation to be paid in respect of each institution.
(4) No action shall be brought in any court with respect to any matter relating to or connected with the payment of compensation under this Edict unless and until the Committee has considered the claims of a proprietor and submitted its recommendations to the Military Governor as to the amount of compensation to be paid in respect of an institution and the Government has communicated its decision to the proprietor in respect thereof. ”
Section 2 of the Edict defines the term “appropriate authority” thus:
“means the member of the Government for the time being charged with the responsibility for educational matters in the State.”
There is no doubt that as between the state and the citizen section 39 of the Education Edict 1972 provides for “compulsory acquisition” of the latter’s property. Sections 40 and 41 of that Edict respectively provide for the citizen’s right to compensation in respect of such acquisition and the machinery for giving effect to such compensation. However, although section 40 aforesaid provides for payment of “adequate compensation” that expression is not defined in the said Edict. Similarly, although section 31 of the Constitution of the Federation (hereinafter referred to as “the Constitution”) requires that “adequate compensation” be made to the citizen for compulsory acquisition of his property there is also no definition of that expression in the said constitution. Section 15 of the Public Lands Acquisition Law Cap 105 (in Volume V of the 1959 edition of the Laws of Western Region of Nigeria) applicable in the Mid-Western (now Bendel) State provides guidelines for the award of “adequate compensation” in respect of property compulsorily acquired from the citizen. That section reads:
“(15) in estimating the Compensation to be given for any lands or any estate or interest therein for any measure profits thereof the court shall act on the following principles:
(a) ….
(b) the value of the land, estate, interest or profits shall subject as hereinafter provided be taken to be the amount which such lands, estate,interest or profits if sold in open market by a willing seller might be expected to realize… Provided that the Court in estimating such compensation shall assess the same according to what it finds to have been the value of such lands,estate, interest or profits at the time when notice of intention to acquire was served and without regard to any improvements or works made or constructed or to be constructed or to be made thereafter on such lands”
It is clear from the above provisions that the intention of the Western Legislature (i.e. the “Regional Parliament”) when it enacted the Public Lands Acquisition Law was that compensation to be made to an owner of land compulsorily acquired from him must accord with well settled principles upon which compensation in such circumstances is to be assessed (i.e. compensation for lands acquired compulsorily pursuant to statutory enactments similar to our local statutes of which Cap 105 aforesaid is one such enactment).
Under these principles the owner of land compulsorily acquired is entitled to the market value of that land at the time the intention to acquire was made known to him. In other words, under Cap 105 aforesaid the interest of every owner (or proprietor) of land and buildings thereon shall be valued rebus stantibus just as it exists at the time when the notice of intention to acquire was served on him. For instance, under the Land Clauses Acts of the United Kingdom Parliament (similar to our Public Lands Acquisition Laws) it has been held in several decided cases in that country that the value of the land is to be assessed at its value to the owner at the date of “the notice to treat” [see e.g. Bwlifa and Merthyr Dane Steam Collieries (1891) Ltd. vs Pebttprudd Water Works Co (1903)A.C 426 H.L.]. Fletcher Moulton L.J. put very clearly, the settled principles on which adequate compensation for land compulsorily acquired is based, in a case (which was also referred to by the learned Judge in the court below), in a passage in which he observed as follows:
“The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the land he gives up their equivalent, i.e. that which they were worth to him in money. His property is therefore not diminished in amount, but to that extent it is compulsorily changed in form. But the equivalent is estimated on the value to him, and not on the value to the purchaser, and hence it has from the first been recognised as an absolute rule that this value is to be estimated as it stood before the grant of the compulsory powers. The owner is only to receive compensation based on the market value of his lands as they stood before the scheme was authorised by which they are put to public uses. Subject to that he is entitled to be paid the full price for his lands, and any and every element of value which they possess must be taken into consideration in so far as they increase the value to him (see Fletcher Moulton L.J. in Re an Arbitration Between Lucas and the Chester-field Gas & Water Board (1909)1 K.B.16 at 29 &30).
Although, as stated earlier on, the term “adequate compensation” is not defined in the Education Edict 1972, Section 40 thereof provides guidelines by which it should be arrived at under the said Edict. And after a close study of the provisions of sub sections (1) & (2) of Section 40 of the said edict we find ourselves in agreement with that passage in the judgement under appeal in which the learned Judge stated that:
“It is irrelevant whether or not the owner (i.e of the land as a gift) or whether some philanthropist made money available to him in acquiring the landed property. The owner is entitled to the market value as at present (i.e. as at the time notice of intention to acquire is served on him or as at the time the acquisition comes into force by virtue of the Edict aforesaid)… If the community or a body of persons or individuals have any genuine claim against any proprietor in respect of a parcel of land or property or any amount they freely granted to the proprietor for which he has been paid adequate compensation, the community or body of persons or individuals have to pursue their claim in accordance with the law. Not only has the Government assumed the role of an arbiter in a matter in which it is an interested party, it has prejudged the issue relating to the transaction between the proprietor on the one hand and the original grantor (i.e. of the land acquired) on the other. And having (as it were) found in favour of the original grantor, the Government would (as it were) want the benefits to accrue, not to the original grantor, but to the Government itself …This is the (irresistible) inference deductible from some of the (sub) paragraphs to section 40(2) of the Edict”
And to the above, we feel inclined to add that the provisions of Section 40(2)(b)(c)(d) and (f) particularly seem at all times to detract from the “market value” of the land to the proprietor as at the time of the acquisition and consequently from his rights under the provisions of Section 15 of Cap 105 aforesaid (i.e. Public Lands Acquisition Law); and this brings us to the next question which is whether in view of the above observations the provisions of Section 40 (and, as we shall now show anon, sec 41) do not offend the provisions of section 31 of the Constitution.
We consider it necessary, at this stage, to set down in detail so much of the provisions of section 31 of the constitution as are material for consideration in relation to the issue raised for determination in this appeal; and we now do so.
Parts of Section 31 read:-
“31(1) No property, movable or immovable, shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except by or under the provisions of a law that:
(a) requires the payment of adequate compensation therefore; and
(b) gives to any person claiming such compensation a right of access,
for the determination of his interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria.
(2) Nothing in this section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date that amends or replaces any such law and does not:
(a) . . .
(b) . . .
(c) make the conditions governing entitlement to any compensation or
the amount thereof less favourable to any person owning or interested in the property; or
(d) deprive any person of any such right as is mentioned in paragraph (b) of subsection (1) of this section.
(3) …
(4) The provisions of this section shall apply in relation to the compulsory taking possession of property, movable or immovable, and the compulsory acquisition of rights over and interests in such property by or on behalf of the state”
On our view and interpretation of the provisions of section 40 of the Education Edict 1972, as earlier on indicated, there is no doubt that although section 40 aforesaid is consistent with section 31 (a) of the Constitution in providing for adequate compensation in respect of land compulsorily acquired, the provisions of some of the sub-sub paragraphs of sub-section (2) of section 40 aforesaid [e.g. 40(2)(a)(b)(c)(d) & (f)] are capable of detracting, and, indeed, are prone to detract, from the entrenched rights of the citizen to compensation in a sum of money equal to the “market value” of his land (compulsorily acquired) as at the time of such acquisition. On this issue there is no doubt that if and when set against the background of the citizen’s entitlements and entrenched rights as at March 31st, 1958, under Cap 105 (i.e. the Public Lands Acquisition Law) conditions governing his entitlements – by way of compensation – as stipulated in section 40(2) of the Education Edict 1972 are clearly “less favourable” to him, and consequently inconsistent with the express provisions of section 31(2)(c) of the Constitution.
We will now deal with the next question which is whether it is within the competence of the lower court to declare the relevant provisions of the Education Edict 1972 inconsistent with the Constitution of the Federation and to that extend invalid We pause, at this stage, to set out and examine the relevant provisions of “the 1966 Decree” , and the “Supremacy Decree”. Sections 1(2), 3(4), and 6 of the 1966 Decree read:
“1(2) Subject to this and any other Decree, the provisions of the Constitution of the Federation which are not suspended by subsection (1) above shall have effect subject to the modification specified in schedule 2 of this Decree
3(4) if any law-
(a) enacted before 16th January 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.
(6) No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria”
The “Supremacy Decree” from its third preamble reads:
“AND WHEREAS by the Constitution (Suspension and Modification) Decree (1966 No 1) there was established a new Government known as the “Federal Military Government” with absolute powers to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever, and, in exercise of the said powers, the said Federal Military Government permitted certain provisions of the said Constitution of 1963 to remain in operation as supplemental to the said Decree
AND WHEREAS by section 6 of the said Constitution (Suspension and Modification) Decree 1966, no question as to the validity of any Decree or any Edict (in so far as by section 3(4) thereof the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria.
AND WHEREAS by Schedule 2 of the said Constitution (Suspension and Modification) Decree 1966 the provisions of a Decree shall prevail over those of the unsuspended provisions of the said Constitution of 1963;
NOW THEREFORE THE FEDERAL MILITARY GOVERNMENT hereby decree as follows:
(1) The preamble hereto is hereby affirmed and declared as forming part of this Decree
(2) …
(a) …
and (b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation, any decision whether made before or after the commencement of this Decree, by any Court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are NOT inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.
A close examination of the provisions of section 6 and 3(4) of the “1966 Decree” leaves us in no doubt that while on the one hand the Decree stipulates that no question as to the validity of “any other Decree” or “any Edict” shall be entertained by any court of law in Nigeria, on the other hand it stipulates that any law made after January 1966 by the Military Governor of a Region (and this can only be an Edict – see Section 4(2) of Decree No 1 of (1966) which is inconsistent with (1) a “law validly made by Parliament” before January 1966″ or having effect as if so made or (2) a “law made by the Federal Military Government on or after” January 1966 (and this can only be a “Decree” – See section 4(1) of Decree No 1 of 1966) “shall to the extent of the inconsistency, be void” in those circumstances, notwithstanding the express provisions of section 6 aforesaid it seems clear to us that courts in this country not only have the powers, but also a duty, to pronounce an Edict (but not a Decree) invalid pro tanto (and no more) if inconsistent with either a Decree or a law made by Parliament before January 1966. This court has, 10 the past expressed, foregoing views – [see Chief Adebiyi Adejumo vs H.E. Col. Mobolaji Johnson, Military Governor of Lagos State (1972)1 ALL. N.L.R. Part 1, 159]; and there is also no doubt that the clear provisions of the fourth preamble to the “Supremacy Decree” lends support to the foregoing view and interpretation of the combined effort of sections 6 and 3(4) of “the 1966 Decree” .
Learned Principal State Counsel, Mr D. K. Azinge, however, contended that even if courts in the country could prior to May, 1970, by virtue of the
provisions of the “1966 Decree” – entertain an action which questions the validity of an Edict, they are now precluded from doing so after 9th May, 1970 on which date the “Supremacy Decree” came into operation. The “Supremacy Decree” was promulgated immediately after the case of Lakanmi and another V. The Attorney General Western Region and others S C 58/69 of 24th April 1970; and its principal provisions, we think, are directed towards the preservation of the Supremacy of a Decree, and the withdrawal from courts in the country of the power of making any pronouncement on the competency “of any of the governments of the Federation” to make a Decree or an Edict; any such pronouncement shall – pursuant to the provisions of the “Supremacy Decree” – “be null and void and of no effect whatsoever as from the date of the making thereof [see section 1 (2) of the “Supremacy Decree” – i.e. No 28 of 1970.]
At the same time it is clear from its provisions, particularly the second and third preambles as well as section 1(2)(b), that the principal aim of that Decree (the Supremacy Decree) is the “assurance of “the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation…”
We, pause, once again, to draw attention to the provisions of sections 1(4),4,14,15 of The Constitution (Basic Provisions) Decree- No 34 of 1975 promulgated five years after the Supremacy Decree which, in our opinion lends support to the view expressed above of the Supremacy Decree; those sections preserved clearly sections 6 and 3(4) of the 1966 Decree. Accordingly, the Supremacy Decree (1) declared in the third preamble (which by Section 1(1), thereof, is affirmed and declared as forming part of the Decree) that the unsuspended portions of the Constitution shall “remain in operation as supplemental to “the” 1966 Decree” and (2) re-affirms and incorporates the provisions of sections 6 and 3(4) of the “1966 Decree”. We are, therefore, unable to accede to the contentions and submissions of the learned principal state counsel and are firmly of the view that the lower court had the necessary jurisdiction to examine the issue whether any of the provisions of the Education Edict 1972 are in any way inconsistent with (i) a Decree or (ii) a law validly made by Parliament before January 1966, and, if so, to declare the said provisions invalid. [see also Chief David Onotsuoran Ereku and others Vs. The Military Governor, Mid-Western State of Nigeria and others 59; E. C. Onyunke Vs Eastern States interim Assets and Liabilities Agency (1974)10 SC77]
Earlier on, we have stated that the conditions stipulated in section 40(2) – particularly (a) (b) (c) (d) & (f), – of the Education Edict 1972 tend to detract from the more favourable provisions of section 15 of Cap 105 (i.e. the Public Lands Acquisition Law) which enure for the citizen; and the provisions of section 15 Cap 105 were in existence, and enured in favour of the citizen (in this case the respondent on record) on the 31st day of March, 1958. In so far as the provisions of section 40(2) of the Education Edict 1972 seek to provide guidelines for, and quasi-conditions of, the proprietor’s entitlement to compensation, they clearly provide for him (the proprietor) conditions which detract from, and are “less favourable” than those to which the citizen is entitled under Cap 105 as at 31st March, 1958 and in doing so these sub-sections of the Edict aforesaid are clearly inconsistent with the express provisions of section 31(2)(a) of the Constitution.
We will now consider section 41(4) of the Education Edict 1972. Under the provisions of that subsection a proprietor cannot take the matter of compensation in respect of property “compulsorily acquired” under the Edict to a court, unless and until (1) the Committee appointed under section 41(1) has considered his claims and submitted its recommendations to the Military Governor as to the amount of compensation paid and (2) The Government has communicated its decision to the proprietor. It should, however, be noted that the Committee itself cannot consider any claims of the proprietor unless and until the claims have been submitted to it by the “appropriate authority” (who is a Government functionary) to whom the proprietor (whose property has been acquired under the Edict), must, under the provisions of section 40(3), first submit his claims for compensation. We are of the view that the provisions of sections 40(3) and 41(4) are prone to inhibit considerably the unqualified right of the citizen (in this case, the proprietor) under section 31 (1 )(b ) of the Constitution to take all matters relating to his claims to compensation directly to the High Court of the State [see Sections 31(2)( d) of the Constitution.]
We are therefore, satisfied (1) that, being inconsistent with the rights of the citizen under the provisions of section 15 of Cap 105 aforesaid, sections 40 and 41 of the Education Edict 1972 are clearly in conflict with section 31(2)(c) of the Constitution of the. Federation and (2) in particular, subsection (4) of section 41 of the Edict conflicts with the provisions of section 31(1)(b) of the Constitution. The Constitution itself is “a law made by Parliament” in force before “January 16th 1966”, and “supplemental” to the 1966 Decree. The dictionary meaning of “supplemental” is “supplementary” or “additional” [see Webster’s New Twentieth Century Dictionary unabridged; 2nd Edition P 1831]. In this judgement all references to “the Citizen” in relation to his rights under the Constitution and Cap 105 aforesaid include corporate bodies, and non-citizens; in other words, all legal persons. In the event, we are satisfied that the provisions of Sections 39,40, and 41 of Part VIII of the Education Edict 1972 are inconsistent with the provisions of section 31 of the Constitution; and on the express provisions of sections 3(4) of the 1966 Decree, the Education Edict 1972 is pro tanto invalid [i.e. Section 39, 40 and 41 of the said Edict are invalid].
Accordingly, this appeal fails. The Judgement of the High Court of the Mid-Western (now, Bendel) State in suit W/122/73 dated the 6th day of November 1974, is hereby affirmed. For clearness sake, however, the judgement of the High Court aforesaid is varied as hereunder stated. It is hereby declared that:
(i) the provisions of sections 39, 40 and 41 of the Education Edict 1972, [Edict No 5 of 1973 of Mid-Western State] are inconsistent with the provisions of section 31 of the Constitution of the Federation and therefore, invalid; and consequently.
(ii) the purported transfer and vesting of the plaintiffs school, Essi College Warri to the Mid-Western (now Bendel) State of Nigeria by virtue of Section 39 of the Education Edict 1972 aforesaid is therefore not in accordance with law; and
(iii) it is, hereby, ordered that the Government of Mid-Western (now Bendel) State of Nigeria or any person acting by authority or order of the said Government is hereby restrained form interfering with the plaintiffs rights and interest in the said Essi College, Warri in purported execution of the powers aforesaid. This order is to be effective 60 days from today, the 14th day of April 1977; and this shall be the judgement of the court. The appellant shall pay to the respondent costs of this appeal which we fix at N114.
Other Citation: (1977) LCN/1923(SC)
