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PRINCE A. ADEMILUYI
Chief Williams, Adesode and Phillips – for the Plaintiff
Olowofoyeku – for the Defendants
CONSTITUTIONAL LAW – Regional Law-, Edict-Whether Regional Law or Edict can override provisions of Federal Legislature or Decree-Decree No. 1 of 1966.
The plaintiff was the registered owner of the following properties prior to the order dated the 27th March, 1968, published as W.S.L. No. 27 of 1968:
THE ALL NEW NIGERIA LAW REPORTS 1968 651
ADEMILUYI V. BRIGADIER R. A. ADEBAYO
(1) Land at Kadiri Street, Sum-Lere, Lagos, registered as Title No. M03065.
(2) Land at Plot 11, Western Avenue, Sure-Lere, Lagos, registered as Title No. M05902.
(3) Land at 35, Oni Street, Suru-Lere, Lagos, covered by Title No. M03986 and deed No. 31 registered at page 31 in Volume 1103 in the Land Registry, Lagos. There are buildings on this land.
(4) Land and buildings at 41 Ogunlana Drive, Suru-Lere, Lagos, regis-tered as Title No. M02274.
(5) Land and buildings at 63 Awolowo Avenue, Ikoyi, Lagos and cov-ered by Title No. L05404.
That fact is not disputed by the defendants, nor the fact that these properties were before the aforesaid order and still are situate within the Lagos State.
On the 28th March, 1968, the Public Officers and Other Persons (Forfeiture of Assets) Order 1968 came into force in the Western State of Nigeria and its effect is contained mainly in subsection 2 with relation to the action before me. It reads thus:-
“The assets of the public officer specified in the Schedule hereto are hereby forfeited to the Western State of Nigeria and shall vest in the Military Governor of the Western State of Nigeria to be held by him on behalf or in trust for the Government of the Western State of Nigeria.”
The officer referred to in this Schedule is admittedly the present plaintiff and the properties referred to under subsections (ii), (iii), (v), (vi) and (vii) are the properties referred to above and are admittedly the properties in dis-pute in this action. The order is signed by the first defendant Brigadier R.A. Adebayo, Military Governor, Western State of Nigeria.
The issue before me is really quite a short and a simple one and amounts to this: Can one State in the Federation of Nigeria by Edict deal with the properties of a person resident of domiciled in that State were such proper-ties lie in another State? That is the crux of the matter with which I have to deal. It is true that several points of Constitutional interest are raised in the pleadings of both parties to this Suit but it is not my intention to deal with those which have no decisive bearing on the issue I have set out above nor do I intend to touch upon those which are within the particular providence and jurisdiction of the High Court of the Western State.
The power exercised by the defendants in this matter and which have brought about this action was one under the Police Officers and Other Persons (Forfeiture of Assets) Order. The order made for the forfeiture of the properties in dispute had its basis in the findings of the body appointed by that State during a particular period.
A convenient starting point I think would be Decree No. 13 which for the purposes of the matter under consideration restored inter alia Decree No. 1 of 1966. In the latter Decree s.3 provides that:-
3(1) The Federal Military Governor shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
(2) The Military Governor of a Region
(a) Shall not have power to make laws with respect to any matters included in the Exclusive Legislative List; and
(b) Except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter includ-ed in the Concurrent Legislative List.
(3) Subject to subsection (2) above and to the Constitution of the Federation, the Military Governor of a Region shall have power to make “laws for the peace, order and good government of that Region”.
That section is clear and completely free from any ambiguity whatsoever. While empowering the Federal Military Government to make laws affecting the whole of Nigeria it limits the powers of the Regional or States Governors to legislating for their respective Regions or States but even then subject to their exclusion from the field of the Exclusive Legislative List and their admission into the Concurrent Legislative List only by the prior consent of the Federal Military Government.
Let us now turn to the Legislative Lists contained in the Schedule to the Constitution of the Federation. Both in the Exclusive Legislative List and the Concurrent Legislative List item 39 in the former and 25 in the latter “Tribunal of Inquiry with respect to all or any of the matters mentioned else-where in the particular list” appears, but only in the former do we find in item 36 any matter relating to the public service or public officers. It there-fore follows that by reading item 39 and 36, together with the power to hold an enquiry or order one to be held in respect of public officers of the Federation is vested in the Federal Military Government. Public Officers are defined in s.6 of Decree No. 51 of 1966 and there is no argument about the present plaintiff coming within the definition. It is accepted that he does. Section 1 of the Decree empowers the Head of the National Military Government (referred to as “the appropriate authority”) to take certain steps in relation to the assets of public officers and also in relation to certain offences committed thereunder.
The Head of the National Military Government is deemed to have dele-gated the powers vested in him, by virtue of s.5 of the Decree, to the Military Governors in relation to their respective group of provinces but subject to this that in spite of this delegation the Head of the National Military Government is not as a result shorn of the powers vested in him. In short, in spite of such delegation he still exercises concurrent powers with the Military Governors in relation to the matters delegated to them in their respective group of provinces. There is this provision however to s.9 (1) of Decree no. 1 of 1966 that the powers of signing Decrees cannot be delegat-ed by the Head of the National Military Government.
Now, if I fully understand the argument of learned Counsel for the defen-dants, and I have tried to record his argument here verbatim, it is this:-
“Decree No. 8 of 1967 gave greater legislative powers to the Military Governors of the Regions. See s.12 of that Decree and the 2nd Schedule, See subsection 3(a). Decree No. 51 of 1966 is one of the matters affected by subsection 3(a). At the stage Decree No. 8 was passed, Decree No. 51 of 1966 no longer applied to the Western Government. It was at this stage that Edict No. 5 of 1967 was enacted by the Military Government of Western Nigeria.”
The object of this argument is to find or provide an answer for Chief Williams’ argument that before the 1 st defendant can validly make an order forfeiting the properties of a public officer into whose assets an enquiry is held, the prior consent of the Head of the National Military Government must first be obtained under s.5(3) of Decree No. 51 of 1966. it is conceded that this prior consent was never obtained. If of course Decree No. 51 of 1966 was no longer applicable to the Western Government at the relevant time then it stands to reason that such prior consent would be unnecessary unless contained in another Decree.
It is provided in s.69 (3A) of Decree No. 8 of 1967 that:
“After subsection (3) there shall be inserted the following new subsec-tion (3A)-
‘(3A) Decrees made after 16th January 1966 to the extent to which they are enacted on any subject not included in any of the Legislative Lists (but excluding matters in subsection (3) of this section) shall, save as herein provided, have effect as Edicts made by a Military Governor, and may be amended or repealed accordingly: “‘
It is the contention of Mr. Olowofoyeku for the defendants that in as much as Decree No. 51 of 1966 came into effect as from the 28th June, 1966 it is a decree coming within the provision of s.69 and is therefore to have effect as the Edict of the Military Governor of the Western State. This argument how-ever completely omits the vital words contained in the amending section 69 (3a) which I again read as
“Decrees made after 16th January 1966 to the extent to which they are enacted on any subject not included in any of the Legislative Lists…”
I have earlier shown that matters pertaining to Enquiries into the assets of public officers are certainly matters included in both the Exclusive and Concurrent Legislative Lists and that is the subject matter of Decree No. 51 of 1966. The effect is that Decree No. 51 of 1966 though made after the 16th January, 1966 is not caught by the provisions of s.69 (3A) of Decree No. 8 of 1967 and this is fully borne out by the various Edicts published in the Western State Gazette purporting to have been passed in 1968 and made under “The Public Officers (Investigation of Assets) Decree 1966 (No. 51)”. It is obviously very much the law in the Western State as indeed in the whole of the Federation.
The very provision of Edict No. 5 of 1967 to which my attention was drawn by Mr. Olowofoyeku makes it clear that Decree No. 51 of 1966 is very far from being regarded as having no force of law in the Western State for it makes this clear in the Interpretation Section in the word “Decree”, in S.2(4) in 8.8(1), 9(1) and (2), 10 and others. Section 24 however of this Edict ends up with the following provision:-
“Subject to the provisions of this Edict, the public officers (Investigation of Assets) Decree 1966, shall be read and construed as one with this Edict, so however that in relation to the Region, the references in the Decree to the Head of the Federal Military Government, other than in subsection (8) of section 2 thereof, shall be construed with necessary mod-ifications as a reference to the Military Governor.”
The effort or purported effect of this rather strange section is that:-
(1) Although the Edict derives power from the Decree the latter is to be read subject to the former.
(2) In spite of the Mother Act if I may so call the Decree, providing that the consent of the Head of the National Military Government is required to the exercise of the right of forfeiture s.24 of the Edict purports to divest the Head of the National Military Government of this power and to vest it in the Military Governor of the Western State.
It requires no citation of authority for it is enshrined in our Constitution and in Decree No. 1 of 1966 that no Regional Law or Edict shall override the provisions of the Federal Legislature of a Decree.
It is not for me to declare invalid any law or Edict passed in any State other than Lagos State and which law is made applicable to a State outside the territorial boundaries of Lagos State. This court and with it the Lands Registry which is now a part and parcel of the High Court are bound by the Decrees of the National Military Government and will not hold itself bound by the provisions of an Edict passed in another State purporting to have extra territorial effect in Lagos State if it in any way derogates from the aforesaid Decree.
Under normal circumstances the plaintiff would be entitled to judgement in respect of the first and third head of Claims but I must as a Court take Judicial Notice of the fact that since Judgement was reserved in the matter Decree No. 37 of 1968 has been passed with the 29th July, 1968 as its com-mencement date. In Schedule 2 of this Decree, Decree No. 51 of 1966 and Edict No. 5 of 1967 have been repealed. I would therefore like to hear Counsel further as to whether any useful purpose would be served by my making any order in the suit. I shall also hear the parties on costs.
Chief Williams, Mr. Akesode and Mr. Carew for Plaintiff Mr. Oluwofoyeku for Defendants.
19th August, 1968.
COURT: By consent matter is adjourned for further address till the 26th August, 1968.
19th August, 1968.
On the 19th August, 1968, I gave a judgement in the above matter but in view of the possibility that the intention of Decree No. 37 of 1968 was to give it a retrospective effect I further adjourned the cause to this day in order to give Counsel time to address me on this new matter which arose subse-quent to the conclusion of the case.
In the said judgement I held in the operative part of the judgement that:-
“Under normal circumstances the plaintiff would be entitled to judge-ment in respect of the first and third head of Claims but I must as a Court take Judicial Notice of the fact that since Judgement was reserved in the matter Decree No. 37 of 1968 has been passed with the 29th July, 1968 as its commencement date. In Schedule 2 of this Decree, Decree No. 51 of 1966 and Edict No. 5 of 1967 have been repealed. I would therefore like to hear Counsel further as to whether any useful purpose would be served by my making any order in the suit. i shall also hear the parties on costs.”
The position has been more than made clear by the provisions of s. l of Decree No. 42 of 1968 made at Lagos on the 20th August, 1968. The rele-vant part of the Decree states that:-
“1. The Investigation of Assets (Public Officers and Other Persons) Decree 1968 is amended with effect from its commencement-
(b) in section 14(2) by inserting in paragraph (a) after the word ‘Decree’ where it secondly occurs, the words ‘so however that the effect of this pro-vision shall not affect any cause or matter pending before a court at the time of such repeal’.”
The obvious intention is that Decree No. 37 of 1968 was never meant to have retrospective effect and that this Suit as well as LD/31/68 which were pending before me at the time are not affected by such a Decree.
For the reasons already given in the Judgement of the 19th August, 1968, and which I here repeat, this Court, like any other Court of the Federation is bound by the Decrees of the Federal Military Government, and any Edict of the Regional State Governments which are in conflict with those Decrees or any provisions of the Constitution must be disregarded. The 1st defendant, Brigadier R. A. Adebayo (Military Governor Western State of Nigeria) can-not purport by an Edict to divest the Head of the Federal Military Government of the power vested in him in that his previous consent must first be sought before an Order can be made forfeiting the properties of pub-lic officer. As I have said, that this consent was not obtained is not contest-ed by the defendants.
I therefore declare that the plaintiff was and remains the owner of the properties mentioned in my Judgement of the 19th August, 1968 and I grant the plaintiff an injunction restraining the defendants, their servants and agents from taking possession of the said properties within the jurisdiction of the Lagos State. It is further ordered that no steps be taken by the Registrar of Titles, High Court, Lagos State for the registration of the properties in the name of the 1 st defendant or in any other name than the plaintiff.
I shall hear the parties on costs.
Plaintiff declared owner of properties in dispute: Plaintiff granted injunc-tion restraining Defendants from taking possession of properties in dispute.