The Governor Of Kaduna State V. Lawal Kagoma (1982)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, C.J.N.

By instrument dated 5th March, 1980, and entitled “instrument constituting the Kaduna Local Government Council Judicial Commission of Inquiry”, and published as Kaduna State Legal Notice No.3 of 1980, Abdulkadir Balarabe Musa, then the Governor of Kaduna State, set up a Commission of Inquiry.

The Commission was to inquire into “the various aspects of revenue, finances, accounting, auditing, meetings, and contracts in respect of the Kaduna Local Government Council since 1st April, 1977”. The Commission, as shown in the instrument, was set up by the Governor, “under and in exercise of the powers conferred” upon him by section 2 of the Commissions of Inquiry Law, (Cap. 25 of the Laws of Northern Nigeria, 1963) which, with necessary adaptation, is applicable in Kaduna State and by section 98 of the Local Government Law, 1977 (No.1 of 1977).

Section 2 subsection (1) of the said Commissions of Inquiry Law reads

“2 (1) The Governor may, whenever he shall deem it desirable, issue a commission appointing one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to hold a commission of inquiry into the conduct of any officer in the public service of Kaduna State, or of any chief, or the management of any department of the public service, or of any local institution, or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare. The Governor may appoint a secretary to the commission, who shall perform such duties as the commissioners shall prescribe”.

Section 98 of the Local Government Law, 1977, under which the Commission was also set up, reads

“98 (1) The Executive Council of the State may cause such inquiries to be held at such times and in such places as it may consider necessary or desirable for the purposes of this Law.

(2) Subject to the other provisions of this subsection, the Executive Council may appoint in writing any person to conduct an inquiry and any person so appointed shall cause a notice of the time and place of the inquiry to be given to the Local Government and persons appearing to him to be interested; and notwithstanding the provisions of the Commissions of Inquiry Law, every inquiry requiring to be held under this Part shall

(a) Where such inquiry is to be conducted by one person, be conducted by a High Court Judge or other judge of not less than equivalent rank; and

(b) Where such inquiry is to be conducted by two or more persons it shall be headed by a High Court Judge or other judge of not less than equivalent rank.” (Italics are mine).

In the Interpretation Law of Northern Nigeria (Cap. 52 of the Laws of Northern Nigeria) which is applicable to the two sections of the Laws referred to above, the words “Governor” and “Governor-in-Council” are defined separately. The word “Governor” is defined as including any person performing the functions of the Governor, while the words “Governor-in-Council” means the Governor acting with the advice of the Executive Council but not necessarily in that Council assembled.

Significantly, the phrase “Executive Council” was not defined in the Local Government Law. It is, however, provided in Section 36 of the Constitution of Northern Nigeria, 1963, (N.N. Law No. 33 of 1963), which was applicable at the time when that Law came into force, as follows

“36(1) There shall be an Executive Council for the Region, whose function shall be to advise the Governor in the Government of the Region and which shall consist of the Premier and such other persons, being Ministers of the Government of the Region, as the Governor, acting in accordance with the advice of the Premier, may from time to time appoint”.

Subject to certain exceptions specified in the said section, none of which is relevant to the present appeal, it is provided in section 40 subsection (1) of the 1963 Constitution that “in the exercise of his functions under this Constitution, the Constitution of the Federation, or any other law, the Governor shall act in accordance with the advice of the Executive Council or a Minister of the Government of the Region acting under the general authority of the Executive Council . . . . . . . . . . . ” (Italics are mine).

The above was a summary of the Constitutional and legal position when the Nigerian Armed Forces took over the administration of the country in January, 1966. Consequent upon the take-over of power, Section 36 and 40 of the Constitution referred to above were suspended. (See the table of “Suspended Provisions of Regional Constitution” in Schedule 3 to the Constitution (Suspension and Modification) Decree, 1966, (Decree No. 1 of 1966) now repealed with effect from 1st October, 1979). In addition to the suspension, it was provided in section 12 sub-section (4) of the said Decree as follows

“Any function which is conferred by any existing law within the meaning of Subsection (1) above on the Governor of a Region or on the Premier or any other Minister of the Government “of a Region or on the Executive Council, the House of Assembly, or the House of Chiefs of a Region shall, until other provision in respect of that function is made by an authority having power to do so, rest in the Military Governor of that Region”. (Italic is mine).

The above was the position until another Military Administration took over power in July, 1975. Although by Section 7 of the Constitution (Basic Provisions) Decree, 1975, (No. 32 of 1975) which came into force on 29th July, 1975, (but has now been repealed), an Executive Council was established for each of the twelve States, no functions were assigned to this new Executive Council under that Decree. Instead, it is provided in section 15 subsection (2) of the 1975 Decree as follows “It is hereby declared that the continued suspension by this or any other Decree or any provision of the Constitution of the Federation or of the Constitution of a State shall be without prejudice to the continued operation in accordance with subsection (1) of this section of any law which immediately before the commencement of this Decree was in force by virtue of that provision.”

In other words, sections 36 and 40 of the Constitution of Northern Nigeria, 1963, which made provision for the establishment of the State Executive Council and for its functions, remained suspended. It would, therefore, appear that the Executive Council referred to in section 98 of the Local Government Law of 1977 can only mean, and does mean, the State Executive Council established under Section 7(1) of Decree No. 32 of 1975. Unlike the earlier one, this later Executive Council consists of the following members:

“(a) The Military Governor as Chairman;

(b) One senior officer each from the Nigerian Army, the Navy, and the Air Force of the State;

(c) The most senior officer of the Nigeria Police in the State; and

(d) Such other members (to be known as commissioners) as the Military Governor, in his direction may, from time to time appoint” .

It is, I think, relevant to point out, at this juncture, that in 1978, by the Constitution (Basic Provisions) (Transitional Measures) Decree, 1978, (Decree No. 15 of 1978, now also repealed), a Military Administrator was appointed for each State to discharge the functions hitherto conferred upon the Military Governor of that State. It also made provision for the appointment of a civilian Deputy Chairman for the Executive Council of each State.

On 1st October, 1979, a new constitution – The Constitution of the Federal Republic of Nigeria, 1979, came into force. On that same day Decrees No. 1 of 1966, No. 32 of 1975, and No. 15 of 1978 were repealed. By implication, so also was the 1963 Constitution.

It is provided in Sections 162, 171 (1) (a), and 171(5) of the 1979 Constitution as follows:

“162(1) There shall be for each State of the Federation a Governor.

(2) The Governor of a State shall be the Chief Executive of that State.

171(1) The Governor or Deputy Governor shall cease to hold office if

(a) By a resolution passed by two-thirds majority of all the members of the executive council of the State it is declared that the Governor or Deputy Governor is incapable of discharging the functions of his office;

……………

(5) in this section, the reference to ‘executive council of the State’ is a reference to the body of Commissioners of the Government of the State, however so called, established by the Governor and charged with such responsibilities of the functions of government as the Governor may direct. ” (The underlining is mine). .

It should be pointed out, even at this stage, firstly, that it is only in subsection (5 referred to above that any attempt was made to indicate the membership of the “executive council of a State”, and secondly, that, from the wording of the said subsection, both the Governor and the Deputy Governor of a State could not be, and are not, members of that “executive council”. Moreover, it is clear from the provisions of section 174 that the commissioners are mere advisers to the Governor who is also “empowered to appoint Special Advisers” under section 177 to assist him in the performance of his functions. In short, both the Commissioners and the Special Advisers are no more than State Executive functionaries. This was the position when the Governor of Kaduna State set up the Commission of Inquiry on 5th March, 1980.

A week later, on 13th March, 1980 to be precise, the plaintiff (now Respondent) commenced proceedings in the High Court of Kaduna State, in which he claimed against the Defendants/Appellants jointly and severally as follows:

“1. A declaration that the setting up of the Judicial Commission of Inquiry by the first Defendant to investigate the affairs of Kaduna Local Government is null and void.

2. A declaration that all the documents signed by the first Defendant in respect of the Inquiry is null and void.
3. An interim injunction to restrain the third Defendant from holding the Inquiry or in any way carrying out any duty and function of the Inquiry until the final determination of this case”.

The application for an interim injunction was refused on 24th March, 1980, after the court had heard arguments from the parties.

The facts relied upon by the plaintiff in support of his claims are contained in paragraphs 2, 6, 7, 8, and 9, of his statement of claims which read

“2. The 1st Defendant by the Kaduna State of Nigeria Gazette No. 9 of 17th March, 1980, instituted a Judicial Inquiry into the affairs of the Kaduna Local Government Council since 1st April, 1977.

6. That the Local Government Edict, 1977 vested power to institute an Inquiry into a Local Government Council only in the Executive Council of the State.
7. That there is no Executive Council in Kaduna State at the time the Inquiry was set up.
8. That the Commissions of Inquiry Law Cap. 25 is a general law and it cannot apply in this circumstance when there is a specific Law in operation on the issue, alternatively, the Local Government Edict of 1977 had repealed the Commissions of Inquiry Law in so far as the Inquiry to Local Government Councils are concerned.
9. Alternatively, that non-compliance with the provisions of Section 98 of Local Government Edict No.1 of 1977 rendered the application of the said Inquiry Law meaningless in relation to the instrument constituting the Inquiry as averred in paragraph 2 above”.

In their joint Statement of Defence, the Defendants averred in paragraphs 7, 9 and 10, thereof as follows:

“7. With further reference to paragraph 7 of the Statement of Claim, the Defendants aver that the said 1979 Constitution of the Federal Republic of Nigeria did not provide for an ‘Executive Council’ except under Section 171 which mentions and defines ‘Executive Council’ narrowly and for a special purpose as ‘the body of Commissioners of the Government of the State’.

9. With reference to paragraph 8 above, the Defendants further aver that the Local Government Edict, 1977, which for present purposes is a more restrictive legislation did not abrogate the Commissions of Inquiry Law, Chapter 25, which is a more general enactment.
10. Having regard to Paragraphs 4 and 9 above, the Defendants deny paragraph 9 of the Statement of Claim and will contend at the trial of the suit that the Local Government Edict, 1977 is not the only law in Kaduna State under which Commissions of “Inquiry into Local Government Council can be held in that the said Edict neither amended nor repealed the Commissions of Inquiry Law, and that the Instrument constituting the Commission of Inquiry is valid, and further still that the first Defendant has the right and power to appoint the said Commission of Inquiry. ”

At the trial, the plaintiff gave evidence but the Defendant did not call any evidence, the case being based mainly on points of law. The learned trial judge after considering the submissions of both parties dismissed the plaintiff’s claims in their entirety after finding as follows: “What we have in this case are two legislations. One specific and one general. They are both existing legislations by virtue of the provisions of section 274 (1) (b) of the Constitution. It has not been shown to me, that these two legislations are inconsistent with one another; in fact, if anything, they have more in common; comparison of what is contained in section 99 of Edict No.1 of 1977 and section 7 of Commissions of Inquiry Law Cap. 25 will testify to the effect that they are similar in the particular subject matter concerned. I find it hard to accept that Edict No.1 of 1977 has by implication repealed or abrogated the Commissions of Inquiry Law.

The answer to the question I raised earlier on, that is, the effect of making use of Commissions of Inquiry Law along with Edict No.1 of 1977 by the 1st Defendant in setting up this inquiry is as follows:

“1. That even though it is clear that 1st Defendant has no power to set up the Commission of Inquiry under Edict No.1 of 1977 alone without the Executive Council he has power to set up the Inquiry under the Commissions of Inquiry Law.

2. That both Edict No.1 of 1977 and Commissions of Inquiry Law Cap. 25 are two independent legislations that can stand side by side. That the failure of one does not affect the other. Each one can stand on its own. ”

Being dissatisfied with the above finding, the plaintiff appealed to the Federal Court of Appeal. The Federal Court of Appeal, in a majority judgment (Coker, J .C.A., dissenting) allowed the appeal, set aside the judgment of the Kaduna High Court after declaring that the setting up of the judicial Commission of Inquiry to investigate the affairs of the Kaduna Local Government is null and void and also that all the documents signed by the 1st Respondent in respect of the Inquiry are null and void. In allowing the appeal, the Federal Court of Appeal found that the Executive Council mentioned in section 3 of the Local Government Law (No.1 of 1977) must be the Executive Council is defined in section 171 sub-section 5 of the 1979 Constitution. It also found that the argument about the inconsistency in the Executive Council under the Local Government Law and the Constitution has no validity in law. It further found that, notwithstanding the fact that no Commissioners had been appointed in Kaduna State at the material time, any inquiry into the affairs of a local government council in Kaduna State can only be set up, not by the Governor of the State under the Commission of Inquiry Law (Cap. 25), but by the Executive Council of the State as provided for in section 98 of the Local Government Law (No.1 of 1977). Finally, it found that the Commissions of Inquiry Law (Cap. 25) has, by implication, been repealed by the Local Government Law (No.1 of 1977).

In the further appeal against the decision to this Court, Dr. Mosugu, who appeared for the Defendants/Appellants submitted that the main issues for consideration are as follows:

(1) Can the Governor of Kaduna State (1st Appellant) on his own exercise powers under section 2 of the Commissions of Inquiry Law, (Cap. 25, Laws of Northern Nigeria, 1963), as well as under section 98 of the Local Government Law, 1977, to set up an inquiry into the affairs of the Kaduna Local Government Council and

(2) Has the Local Government Law (No.1 of 1977) repealed or abrogated the provisions of the said Commissions of Inquiry law, (Cap. 25)

Learned counsel then submitted that if the majority Justices of the Federal Court of Appeal had paid due regard to the provisions of the Commissions of Inquiry Law, as well as those of the Local Government Law (No.1 of 1977), and also to the relevant provisions of the 1979 Constitution to which I have referred earlier in this judgment, they would not have fallen into the error of setting aside the judgment of the trial court and deciding that the 1st Appellant had no power to set up the Commission of Inquiry into the affairs of the Kaduna Local Government Council without the sanction of the State’s Executive Council. Learned counsel also contended that the Federal Court of Appeal should have had due regard to the rules which apply to interpretation of statutes.

Learned counsel referred us to sections 5(2), 162(2), 171, 173 and 174 of the 1979 Constitution and to the finding of the Court of Appeal that it was common ground that, at the material time, there were no commissioners in Kaduna State as provided for in section 173(1) of the said Constitution. He then contended that, because of this finding, the Court must have assumed that there was at the time no body of Commissioners of Government which could be referred to as the Executive Council of the State. He also submitted that the Executive Council referred to in section 36 of the 1963 Constitution is not the same as the executive council referred to in section 171(5) of the 1979 Constitution, pointing out that the Governor was a member of the Executive Council under the 1963 Constitution while under the 1979 Constitution, the Governor is not a member of the body of commissioners described in section 171(5) as the “executive council”. In his final submission, learned counsel contended that since the Governor cannot set up the Commission of Inquiry under section 98 of the Local Government Law (No. 1 of 1977) because there is no executive council in the State, he can set it up under the Commissions of Inquiry Law (Cap. 25). Both laws, learned counsel then concluded, are existing laws as defined in section 274 of the 1979 Constitution. In his reply, Mr. Vigo, learned counsel for the Respondent, submitted that the Commissions of Inquiry Law (Cap. 25) had been repealed by section 1(1) arid 21 of the Tribunals of Inquiry Decree, 1966 (Decree No. 41 of 1966). When his attention was called to section 22 of the said Decree which stated, in clear terms, that the only enactment repealed by that Decree is “the Commissions and Tribunals of Inquiry Act, 1961” he abandoned this line of argument. While conceding that both the Commissions of Inquiry Law (Cap. 25) and the Local Government Law of Kaduna State (No.1 of 1977) are existing laws, and that if section 98 of the said Local Government Law is inconsistent with the provisions of section 171 of the 1979 Constitution, the provisions of the Commissions of Inquiry Law, which is the general law, will apply, he, nevertheless, submitted that the provisions of section 98 of the Local Government Law, which is the general law, will apply, he, nevertheless, submitted that the provisions of section 98 of the Local Government Law, which is the specific law applicable to inquiries into the affairs of local governments, are not inconsistent with those of section 171 of the 1979 Constitution. In answer to a question put to him by the court, as to the correct interpretation of section 173(1) of the 1979 Constitution, learned counsel conceded that the Governor of Kaduna State is not bound to appoint Commissioners and can govern the State, if he can, without them. In my view, the first question which calls for determination in this appeal is whether the two Laws – the Commissions of Inquiry Law (Cap. 25) Laws of Kaduna State, and the Local Government Law (No.1 of 1977) – by virtue of which the Governor of Kaduna State (1st Defendant/Appellant) set up the Commission of Inquiry into the affairs of the Kaduna Local Government Council, are existing laws on 5th March, 1980, the date when the Commission was set up. According to section 274 subsection 4 (b) of the 1979 Constitution

“Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date, comes into force after that date. ”

Since both Laws came into force before 1st of October, 1979, when section 274 of the Constitution came into force, I hold that the two Laws are existing laws within the meaning of that section.

The next question is this. If both Laws are existing laws on 1st October, 1979, and having regard to their respective provisions, do they exist and in force side by side or does section 98 of the later Law, that is, the Local Government Law (No.1 of 1977) which deals with inquiries into the affairs of Local Government Councils of Kaduna State specifically repeal, albeit by implication, the provisions of section 2 of the Commissions of Inquiry Law (Cap. 25) which is an earlier Law dealing with Commissions of Inquiry generally It is now well established that the courts will lean against implying the repeal of an existing legislation. Therefore, if both the earlier and the later statutes can reasonably be construed in such a way that both can be given effect to, this must be done, Moreover, when the later statute, as in the present case, is worded in clear and affirmative language, restricting the powers conferred therein to a specified authority and to specific subject, without any negative expressed or implied, it becomes less likely that the later statute is intended to repeal the earlier statute. It only makes inapplicable the provisions of the earlier statute so long as the provisions of the later statute dealing with specific matters are in force. Thus, in Luby v. Warwickshire Miners Association (1912) 2 Ch. 371, it was held that statutes which regulate the affairs of trade unions have merely exempted them, by implication, from the operation of earlier statutes relating to unlawful combinations. For these reasons, I do not think that the provisions of section 98 of the Local Government Law (No.1 of 1977) repealed, by implication, those of section 2 of the Commissions of Inquiry Law, (Cap. 25) was referred to in section 98 sub-section (2) of the Local Government Law clearly indicates that there is no implied repeal of the earlier law. Both Laws, to my mind, exist side by side and should be interpreted accordingly, bearing in mind that the words of an enactment will generally be understood in the sense which they bore when the enactment was being read the day after it was passed into law. (See Sharp v. Wakefield (1888) 22 Q.B.D. 239).

Since the two Laws exist side by side, the next question is, could the 1st Defendant/Appellant set up the Commission of Inquiry, as he had done, under both Laws or under either of the two Laws Before answering this question, I must point out that it is now trite that where there are two enactments, one making general provisions, as in the case of the provisions of section 2 of the Commissions of Inquiry law (Cap. 25), and the other making specific provisions, as in the case of the provisions of section 98 of the Local Government Law (No.1 of 1977), the specific provisions are, by implication, excluded from the general provisions. On the face of it, therefore, it would seem that, from the time the Local Government Law was enacted in 1977, the powers conferred on the Governor in section 2 of the Commissions of Inquiry Law could not be used to institute inquiries into the affairs of a local government council. Of course, this would only be so if the provisions of section 98, having regard to the Constitutional definition of “executive council” in section 171(5) of the 1979 Constitution, was still in force at the time of the setting up of the Commission of Inquiry in March, 1980. Having found that both Laws exist side by side, I will now proceed to examine the scope of section 98 of the Local Government Law vis-a-vis the 1963 Constitution of Northern Nigeria, as amended from time to time by the Military Administration, and the 1979 Constitution. As I pointed out earlier, the provisions of sections 36, 38, and 40 of that 1963 Constitution which not only established the Executive Council but which also spelt out its collective responsibility to the Legislative House of the Region and provided that the Governor shall act generally in accordance with its advice, was suspended by Decree No.1 of 1966. That suspension was not lifted until the Decree was repealed by the 1979 Constitution. Therefore, the Executive Council in existence in January 1977 when the Local Government Law (No.1 of 1977) was passed was the one established by Decree No. 32 of 1975. Section 7 subsection (1) of that Decree provides as follows:

“7 (1) There shall be for each State an Executive Council which shall consist of

(a) The Military Governor as Chairman;

(b) One senior officer each from the Nigerian Army, the Navy and the Air Force in the State;

(C) The most senior officer of the Nigeria Police in the State ; and

(d) Such other members (to be known as Commissioners) as the Military Governor in his direction, may, from time to time, appoint” .

Later, on 24th July, 1978, by the Constitution (Basic Provisions) (Transitional Measures) Decree, 1978 (Decree No. 15 of 1978), the “Military Governor” was re-designated “Military Administrator” with power to appoint one of the Commissioners in the State Executive Council as Deputy Chairman of the Council. The Military Governor, later designated as the Military Administrator, was, at all material times, a member of that Executive Council.

Compared with that Executive Council, there is the “executive council” referred to in section 171 subsections 1 (a) and (5) of the 1979 Constitution. That “executive council” is – “the body of commissioners of the Government of the State, however so called, established by the Governor and charged with such responsibilities for the functions of government as the Governor may direct. ” (Underlining is mine). Not only is the Governor not a member of this “body of commissioners” which make up the so called “executive council”, the composition of it clearly shows that it is a completely different body from that established by the Military Administration by virtue of Decree No. 32 of 1975 which must have been the one the Military Governor had in mind when he promulgated the Local Government Law in January, 1977. Furthermore, I must take cognizance of the constitutional provision that it is the State Governor as the Chief Executive of the State (See section 162(2)) who is empowered to establish the “executive council”. Indeed, at the time he set up the Commission of Inquiry in March, 1980, the 1st Defendant/Appellant has not established any “executive council” in Kaduna State.

As I indicated earlier, the words of a statute will generally be understood in the sense which they bore when the statute was passed into law. With this rule in mind, I fail to see how the “Executive Council” established by Decree No. 32 of 1975 could be found to be the same “body of commissioners” conveniently referred to as the “executive council of the State” in section 171 subsection (5) of the 1979 Constitution. Furthermore, the only constitutional function which that “executive council of the State”, after it has been established by the Governor of the State in accordance with section 171 (5) of the 1979 Constitution, is empowered to discharge is to declare, by resolution passed by a two-thirds majority, that the State Governor is no longer “capable of discharging the functions of his office.” (See section 171(1) (a) of the said Constitution). To that extent, the provisions of section 98(1), if, indeed, it confers any other power on that “executive council” (although it is my view that it does not) that other power would be inconsistent with that conferred by section 171 of the 1979 Constitution. Since section 98(1) has not been modified by the Governor of Kaduna State, as he could have done by an Order made by him by virtue of the powers conferred upon him by section 274 of that Constitution and thereby bring the Law into conformity with the provisions of the 1979 Constitution, the said section is void for inconsistency. It, therefore, follows that no inquiry into the affairs of the Kaduna Local Government Council could be set up by the 1st Defendant/Appellant by virtue of that section of the Local Government Law, (No.1 of 1977). Does it then mean that he cannot inquire into the affairs of any Local Government Council in Kaduna State I do not think so.

The final question then is this: Can the 1st Defendant/Appellant set up the Commission of Inquiry under section 2 sub-section (1) of the Commissions of Inquiry Law (Cap. 25) For ease of reference, the subsection is reproduced hereunder

“2(1) The Governor may, whenever he shall deem it desirable, issue a commission appointing one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to hold a commission of inquiry into the conduct of any officer in the public service of Kaduna State, or of any chief, or the management of any department of the publice service, or of any local institution, or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare” . (Italics are mine).

Having regard to the words “or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare” used in section 2 subsection (1), there is no doubt in my mind, and I so hold, that by virtue of this “blanket or all-embracing” provision, the Governor of Kaduna State, on his own and without reference to any body or authority, can set up the Commission of Inquiry, as he had done, to look into the affairs of the Kaduna Local Government Council. Sections 21 and 22 of the Commissions of Inquiry Law (Cap. 25) and the definitions of “Governor” and “Governor-in-Council” in section 3 of the Interpretation Law of Kaduna State (Cap. 52) make this abundantly clear.The Federal Court of Appeal was, accordingly, in error in holding that section 2 of the Commissions of Inquiry Law (Cap. 25) had been impliedly repealed by Section 98 of the Local Government Law of Kaduna State (No.1 of 1977). The Court was also in error in holding that the 1st Defendant/Appellant could not set up the Commission of Inquiry by virtue of his powers under section 2 of the Commissions of Inquiry Law. Consequently, the Court was in error in setting aside the finding of the High Court of Kaduna State that, as a matter of law, he could. Finally, I hold that it is in error in setting aside the judgment and order made by that High Court to that effect.

The appeal, for all these reasons, is allowed and the judgment of the Federal Court of Appeal delivered on 16th January, 1981, and the consequential orders made thereby including that made as to costs, be and are hereby set aside. I further order that the judgment of the High Court of Kaduna State delivered on 19th June, 1980, dismissing the plaintiff/Respondent’s claims, including the order made thereby as to costs, be and is hereby restored and affirmed.The Defendants/Appellants are awarded costs assessed in the Federal Court of Appeal at N350.00 and in this Court at N300.00.A. G. SOWEMIMO, J.S.C.: I agree with the judgment just delivered by the Honourable Chief Justice. I wish to make a few comments on this matter. Part II of the 1979 Constitution deals with State Executive. I wish to refer to sections 162, sub-section 1 and 2 which read as follows:

(1) “There shall be for each State of the Federation a Governor.3

(2) The Governor of a State shall be the Chief Executive of that State.”

Edict No.1 of 1977 is no doubt an existing law under section 274 of the Constitution. The definition of the word Executive Council has been set out in the judgment of the Chief Justice. As from the 1st of October, 1979 however, for certain set out purposes section 171 sub 5 defines Executive Council. That also has been referred to in the judgment just delivered. Section 174 deals with the Executive responsibilities of Commissioners, which in this case, by virtue of sub 2 includes the Governor of a State, the Deputy Governor and all the Commissioners of the Government of that State. Those sections are the present provisions for the body known as Executive Council of a State. The provision of the Executive Council before 30th of September, 1979 has no comparison with the one I have referred to. The result is this, that is, one has to read the Executive Council in Edict No.1 of 1977 section 98 sub-section 1 with the Executive Council in Decree No. 32 of 1975 as amended in 1978, it will be found that no such body existed in the present Constitution. To that extent, unless the word Executive Council can be interpreted, should that be possible, in the light of the present Constitution, it is quite clear in this circumstances that the Governor and the Deputy Governor will be members of such Council. Therefore, the provision of section 98 sub1 of Edict No. 1 of 1977 is absolutely inconsistent with the provision of the present Constitution, and to that extent, must be regarded as a provision which has lapsed or perhaps by implication repealed. Considering the instrument appointing the Commission of Inquiry in 1980 into the Kaduna Local Government Council, all references to Edict No.1 of 1977 must be regarded as mere surplus age with no effect. For the reasons which are contained in the judgment of the Chief Justice, and perhaps with the consideration of the matter I have mentioned above, this appeal must be allowed. I agree with the consequential orders made by the Honourable the Chief Justice.

A. G. IRIKEFE, J.S.C.: I had the advantage of a preview of the judgment just delivered by the learned Chief Justice of Nigeria. I agree with the learned Chief Justice that, as on 1st October, 1979 and by virtue of Section 274 of the Constitution of Nigeria, 1979, the Commissions of Inquiry Law (Cap 25) Laws of Kaduna State and the Local Government Law (No.1) of 1977 became existing laws within the intendment of the section aforesaid. I agree also that, although both laws exist side by side as at the date that the 1979 Constitution came into force, Section 98(1) of the Local Government Law not having been modified by the appropriate authority, namely, the Governor of Kaduna State, it became void for inconsistency. This being the case, I agree that the Governor of Kaduna State as the Chief Executive of that State, could set up the Inquiry the subject of this appeal under enabling powers conferred on him under the Commissions of Inquiry Law (Cap 25) Laws of Kaduna State. I agree that the appeal be allowed and I also would adopt the order on costs as contained in the judgment of the learned Chief Justice.

A. O. OBASEKI J.S.C.: I have had the opportunity of reading and considering before now, the opinions of my learned brother, Fatayi-Williams, C.J.N. The two short points in this appeal are

(1) Whether the Local Government Edict of Kaduna State 1976 (No.1 of 1977) Section 98 has effect as an existing law; and

(2) Whether, if it has effect as an existing law, Section 2 of the Commissions of Inquiry Law Cap. 25 Laws of Northern Nigeria 1963 has not been impliedly repealed by Section 98 of the Local Government Law of Kaduna State 1976 as regards institution of inquiry into Local Government matters.

These issues have been dealt with extensively by my learned brother, Fatayi- Williams, C.J.N. in his judgment just delivered. I agree completely with his opinions on the issues.

I would therefore allow the appeal and I hereby allow the appeal. The judgment of the Federal Court of Appeal is hereby set aside and the judgment of the High Court of Kaduna State (Abdullahi, J.) restored.

The Appellants are entitled to costs which I assess in the same amount as ordered by my learned brother, Fatayi-Williams, C.J.N.

K. ESO, J.S.C.: I have had the privilege of a preview of the judgment which has just been delivered by my learned brother Fatayi- Williams C.J.N. As I totally agree with the reasoning of and the conclusion reached by the learned Chief Justice I do not intend to add anything further to the judgment.

The appeal is therefore allowed in the terms specified in the aforesaid judgment of the learned Chief Justice of Nigeria.

A. NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Fatayi-Williams, Chief Justice of Nigeria and for the reasons stated therein with which I entirely agree, I would also allow this appeal.

I wish to make a short comment purely for the purposes of emphasis. It is not in controversy that in setting up the Commission of Inquiry, the Governor of Kaduna State (hereinafter known as the 1st Appellant) purported to have acted under and by virtue of the powers conferred upon him in Section 2 of the Commissions of Inquiry Law Cap. 25 Laws of Kaduna State, and Section 98 of the Local Government Law 1976, Edict No.1 of 1977, and all other powers enabling him in that behalf. (See Instrument setting up the Inquiry Exhibit 2 in the proceedings in the State Extraordinary Gazette No.9 Volume 14 of 17.3.80). The issue in this Suit was whether the 1st Appellant can legally set up the said inquiry under either or both of those laws. The Federal Court of Appeal, from whose majority judgment Appellants have appealed to this Court, put the question thus:

“Can the first Respondent (1st Appellant in this Court) exercise powers under Section 2 of the Commission of Inquiry Law Cap. 25 as well as S.98 of the Local Government Law 1976 to set up an inquiry to look into the affairs of the Kaduna Local Council

The relevant provisions of the two laws are as follows

Section 98(1) Local Government Law “The Executive Council of the State may cause such inquiries to be held at such times and in such places as it may consider necessary or desirable for the purposes of the Edict.

(2) Subject to the other provisions of this sub-section, the Executive Council may appoint in writing any person to conduct an inquiry and any person so appointed shall cause a notice of the time and place of the inquiry to be given to the Local Government and persons appearing to him to be interested; notwithstanding the provisions of the Commissions of Inquiry Law, every inquiry requiring to be held under this part shall

(a) where such inquiry is to be conducted by one person, be conducted by a High Court Judge or other Judge of not less than equivalent rank; and

(b) where such inquiry is to be conducted by two or more persons it shall be headed by a High Court Judge or other Judge of not less than equivalent rank” (underlining mine).

On the other hand section 2 of the Commissions of Inquiry Law, Cap 25 of the Laws of Kaduna State reads as follows

2 (1) The Governor may, whenever he shall deem it desirable issue a commission appointing one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to hold a commission of inquiry into the conduct of any officer in the public service of Northern Nigeria, of any Chief, or the management of any department of the public service, or of any local institution or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare. The Governor may appoint a Secretary to the Commission who shall perform such duties as the commissioners shall prescribe.

(2) Each commission shall specify the subject of inquiry, and may, in the discretion of the Governor, if there is more than one Commissioner direct which commissioner shall be chairman, and direct where and when such inquiry shall be made and the report thereof rendered, and prescribe how such commission shall be executed” (underlining mine).

Both laws were promulgated before 1979 when the Constitution of the Federal Republic of Nigeria 1979 (hereinafter known as the Constitution) came into effect. The first issue is whether they are existing laws under the Constitution. I hold that they are existing laws pursuant to Section 274(4)(b) of the Constitution. There, “existing law” means “any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.” If the two laws are existing laws the question which further arises is whether they are consistent with the provisions of the Constitution and so valid or whether the appropriate authority (in this case the Governor of Kaduna State) has modified them to bring them into conformity with the provisions of the Constitution in accordance with section 274 (2) of the Constitution.

In my view, the problem does not seem to lie with the Commission of Inquiry Law, Cap 36 of Kaduna State the relevant section of which was set down above. It does not appear to me that any of the provisions of that enactment are inconsistent with the Constitution. The problem rather lies with Section 98 of the Local Government Law 1976, Edict No.1 of 1977, also set down above, the provisions of which appear to be inconsistent with the provisions of the Constitution. This is in relation to the provision for “Executive Council” in that law and the functions ascribed to that Council therein. Was there any modification of the provisions of the Local Government Law with a view to bringing its provisions in conformity with the provisions of the Constitution The Governor of Kaduna State made a modification Order – The Local Government Edict (Modification Order 1979 – amending various sections of the Local Government Law.

These amendments did not include Section 98 of that law. It is also pertinent to mention, though not for purposes of modification, that the Kaduna State House of Assembly enacted at least two amending law in respect of the Local Government Law – the Local Government Edict (Amendment) Law, 1980 – but these did not include the Local Government Law under consideration. To appreciate the inconsistency with the provisions of the Constitution referred to above, it would be necessaryly examined briefly – as this has been dealt with in greater detail in the judgment of the learned Chief Justice – the provisions relating to Executive Council in the Local Government Law and those dealing with a body by the same name in the Constitution of 1979. It is perhaps pertinent to mention first that in the Local Government Law Itself “Executive Council” is not defined except that in section 3 (1) of the law (i.e. the Local Government Law) it is provided that “Executive Council” means “the Executive Council of the state”. To determine what was Executive Council in 1976, one would have to refer to the Constitution of the Federation, No.20 of 1963 as amended by the various decrees, particularly Decree No. 1 of 1966 – Constitution (suspension and modification) Decree-and the (Constitution Basic Provisions) Decree, No. 32 of 1975. Not only were Sections 36-43 of the Constitution of Northern Nigeria 1963 which dealt with Executive Council suspended (see Schedule 3 of Decree No.1 of 1966 and section 15 (2) of Decree No. 32 of 1975), but the composition and nature of the Executive Council had been altered considerably.

By the time the Local Government Law 1976 was promulgated, the Executive Council of Kaduna State consisted of a Military Governor, who was chairman, one senior officer each from the Nigerian Army, the Navy and the Air Force in the State, the most senior officer of the Nigeria Police in the State and such other members (known as Commissioners) as the Military Governor in his discretion appointed (see Section 7 (1) of the Constitution (Basic Provisions) Decree No. 32 of 1975).

This was the composition of the Executive Council (except for the subsequent provision for Military Administrators in 1978) until Decree No. 32 was itself repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree No. 105 of 28th September, 1979. (It is pertinent to mention that no executive functions are vested by Decree No. 32 of 1975 on the Executive Council of the State). A close perusal of the Constitution of the Federal Republic of Nigeria shows that there is in it no similar Institution known as “Executive Council” as that which had been set down above. The only references to Executive Council in the part of the Constitution dealing with States occurring Sections 171 (1) (a) and 171 (5). Section 171 (1)(a) provides that “the Governor or Deputy Governor shall cease to hold office if by a resolution passed by two-thirds majority of all the members of the executive council of the State it is declared that the Governor or Deputy Governor is incapable of discharging the functions of his office. “Executive Council of the State” is defined in Subsection 5 as the “body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of government as the Governor may direct”. These offices of Commissioners of the State Government are established by the Governor in his discretion (See Section 173 of the Constitution). From the definition of Executive Council neither the Governor nor his deputy is a member.

There can therefore be no comparison with the Executive Council as provided in the Constitution. The more serious inconsistency with the provisions of the Constitution are the executive functions granted to the “Executive Council” under the Local Government law, 1976. As set down earlier in this judgment that council was not only to “cause such inquiries to be held” but “may appoint in writing any person to conduct an inquiry”. These are executive functions. As Isaacs F. observed in New South Wales v. Commonwealth 20 C. L. R. 54 at 89. Executive power is defined as “the one which extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth (underlining mine). Apart from the very restricted executive functions given to the “Executive Council” under Section 171(1)(a) of the Constitution, no executive functions are vested on the “body of Commissioners” set up

Under the Constitution. I am of course not unmindful of Section 174(1) of the Constitution which some of their Lordships of the Federal Court of Appeal though conferred some “executive power” on the Commissioners. For case of reference that section of the Constitution provides as follows

“174 (1) The Governor of a State may in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of Government of that State, including the administration of any department of Government.

(2) The Governor of a State shall hold regular meetings with the Deputy Governor and all the Commissioners of the Government of the State for the purpose of

(a) Determining the general direction of the policies of the Government of the State.

(b) Co-ordinating the activities of the Governor, the Deputy Governor and the Commissioners of the Government of the State in the discharge of their executive responsibilities, and

(c) Advising the Governor generally in the discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body”. (Underlining mine).

The assignment of responsibilities to the Commissioners is in the discretion of the Governor, and although it is mandatory that he holds regular meetings with his Commissioners, it is clear that the content of what is to be discussed in such meetings is in his discretion; and in any case, the Body of Commissioners act in an advisory capacity and the Governor is not obliged to accept any advice tendered at such meetings. The Constitution intends that Commissioners like Special Advisers appointed under Section 177 of the Constitution should assist the Governor in the exercise of his executive functions.

The Governor of a State is therefore in my view the repository of the executive power of that state. He is the Chief Executive of that State. In this connection, the provisions of Sections 5(2) and 162 of the Constitution seem to me unequivocal. They provide as follows

“5 (2) Subject to the provisions of this Constitution, the executive powers of a State

(a) Shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State; and

(b) Shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws……………………….. “(emphasis mine) and Section 162 (2): “The Governor of a State shall be the Chief Executive of that State” .

Although I agree that our 1979 Constitution is inspired by principles of democracy and social justice – in fact Section 14( 1) of the Constitution states that “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice” – I am in no doubt that the provisions relating to the position of Governor at the state level (and President at the Federal level) were designed to vest executive responsibility of the State or the Federation in one individual for purposes of effective Government. The checks and balances which abound in the Constitution with respect to the powers so granted were designed not to cut down the extent of those powers but to ensure that they are exercised with due regard to the fundamental objective of State policy to which reference was made above. In the circumstances of the case in hand, it is inconsistent with the powers which I hold were vested on the Governor by the Constitution for the Local Government Law 1976 to vest on the “Executive Council” the powers to set up an inquiry and appoint its members. For this reason, and the further reason that there is no equivalent body under the 1979 Constitution to “Executive Council” as conceived and used in the said Local Government Law 1976, I hold too that that law is inconsistent with provisions of the Constitution and therefore void (See Section 1 (3) of the Constitution).

The Local Government Law having been so declared invalid, it is my view that the Commission of Inquiry Law Cap. 25 was available for use by the Governor. But then it was contended in argument by learned counsel for the Respondent that that law could not be used because it provides for local Institutions and having regard to Section 7 of the Constitution, which makes copious provisions for local government, local Institutions cannot in any sense be local government. It could therefore not be used to set up the inquiry. I would respectfully agree with my Lord, the Chief Justice, that the short answer to that is that the law is available to the Governor since under Section 2 (1) thereof the Governor can institute an inquiry into any matter in respect of which in his opinion, an inquiry would be for the public welfare and any matter includes local government. The other contention by learned counsel for the Respondent was that the Commission of Inquiry Law, Cap 25 was not available because being a general law it was overridden or impliedly repealed when the Local Government Law 1976, Edict No.1 of 1977 – a particular law was promulgated. As regards implied repeal of statutes generally, it is now well settled that the Courts tend to lean against accepting an implied repeal of any law. The rationale of this attitude by the Courts is of course that if it is the intention of Parliament (or any legislature) to repeal an existing law it should be so stated by express words. The attitude of the Courts is consequently that if effect can be given to the two statutes concerned that should be done rather than imply a repeal. A statute repeals another by implication only if the terms of the later one are so inconsistent with and so repugnant to those of the later one that they cannot stand together (Kutner v. Phillips [1891] 2 Q. (B 267 at 271, 272). In Butler v. Attorney-General (Victoria) 106 C.L.R. 268 and 276 Fullagar J. made the following observation which I adopt:

“The books contain, of course plenty of examples of an implied repeal – total or partial – of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. The classical statement on the subject is, I think, to be found in the opinion of ‘Lord Blackburn in Gurnett v. Bradley (1878) 3 App. Gas 944 at 966. After calling attention to the generally unsatisfactory nature of the authorities, His Lordship said “I shall not attempt to recite all the contrarieties which make one statute inconsistent with another. The contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely that when new enactment is couched in general affirmative language and the previous law whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed…………….. But when the new affirmative words are, as was said in Stradling v. Morgan 1560 1 Plow 199 at p. 206 such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together, the second repeals the first”. To return to the particular circumstances of the case in hand, the particular statute (here the Local Government Law 1976) would impliedly repeal the general law (here Cap 25) if the application of that general law to a particular case (e.g. inquiries into local government) is inconsistent with special provisions subsequently made as respects that particular case. I see no such inconsistency or contrariety between the two laws. The Commission of Inquiry Law, Cap 25, made provision for inquiries into any matter which includes local government. The new law makes provision for inquiries into local government. The two laws can in my view stand together, and infact supplement each other as regards inquiries into local government.. Still attacking Cap 25, learned counsel for the Respondent contended that under it the Governor would have to act on the advice of the Executive Council. The answer to that lies, first in the fact that Sections 36-43 of the Constitution of Northern Nigeria, 1963, which contained that notion of the manner of exercise of the Governor’s powers, were suspended: second, the notion of Governor-in-Council which this argument would import is, in my view, inconsistent with the wide ranging executive power vested in the Governor by the Constitution as discussed earlier on in this judgment.

Having regard to the views I had earlier expressed about the invalidity of the Local Government Law 1976, it follows that I hold that the Commission of Inquiry Law of Kaduna State, Cap 25, was available to the Governor of Kaduna State and that he legally and validly exercised his powers under it to appoint a Commission of Inquiry into the Kaduna State Local Government Council. I agree with all the orders made by the learned Chief Justice in his judgment, including his order as to costs.

M. L. UWAIS, J.S.C.: I entirely agree with the judgment delivered by my learned brother the Chief Justice of Nigeria. I had the opportunity of reading the judgment in draft and I have nothing to add.

Accordingly, I will allow the appeal for the reasons given in the said judgment and set-aside the judgment of the Federal Court of Appeal together with the consequential orders made thereunder. The judgment of the Kaduna State High Court (per Abdullahi J.) given in favour of the Appellants is hereby restored. I too will award costs to the Appellants in the terms stated in the judgment of my learned brother the Chief Justice of Nigeria.

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SC.64/1981