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F.S.C. 170/1962

7TH JUNE, 1962.

3PLR/1962/8  (FSC)



SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)











(No. 1)

CONSTITUTIONAL LAW- Definition of Emergency -Section 65 Nigerian Constitution 1960 – Court not to go outside the provisions.

INJUNCTION – To restrain Administrator appointed under the Emergency Powers Act from exercising his power pending the determination of the action – Court not to make an order which is likely to worsen situation al­ready created.



Dingle Foot, Q.C. (with him Akinyele and Adepegba) -for the Plain­tiff.

Elias, Q.C., Attorney-General of the Federation (with him Chief Omololu, S.D. Adebiyi and B.O. Kazeem) -for the Defendants.



ADEMOLA, C.J.F. (Delivering the Judgment of the Court): The plaintiff has filed a Statement of Claim to the following effect:

That the Government of the Western Region appointed him Premier on the 21st May, after removing Chief Akintola from that office under Sec­tion 33(10) of the constitution of the Region; that the defendants maintain that those acts of the Governor are unconstitutional and that from that day there was no duly constituted Government in the Region; that the Governor has also appointed Ministers and Parliamentary Secretaries on the plaintiff’s recommendation; that on the 25th May he tried to have a vote of confidence in the Legislative Houses but owing to unforeseen disturbances the meeting in the House of Assembly broke up in confusion; that the Federal Parlia­ment passed a resolution purporting to be under Section 65 of the Constitu­tion of the Federation declaring a state of public emergency, the resolution to be in force until the end of 1962; that he will contend at the trial that there were not sufficient grounds for that declaration and that the resolution was passed mala fide and was invalid therefore; that the Governor-General-in ­Council purporting to act under the Emergency Powers Act, 1961, has made various Emergency Powers Regulations, (which are specified) under a Sec­tion of which he, the plaintiff, has been served with a restriction order; that he will contend at the trial that the Emergency Powers Act and the Regula­tions made thereunder are ultra vires, unconstitutional etc. for these reasons:

“1.     The Emergency Powers Act, 1961, is ultra vires, unconstitutional and invalid in that it purports to provide for the maintenance of peace, order and good government during a state of emergency but in fact deals with matters included in the Legislative List, to wit the matters designated in item 12 of the Exclusive Legislative List and the matters designated in item 18 of the Concurrent Legislative List.

  1. The said Emergency Powers Act, 1961, purports to delegate or abdicate the powers vested by the Constitution of the Federation in Parliament to the Governor-General-in-Council and the said Act also purports to authorise the Governor-General-in-Council to delegate or abdicate those powers to the Administrator.
  2. The Provisions of the following regulations purport to alter the Constitution of Western Nigeria contrary to Section 5 of the Con­stitution of the Federation and Section 32 of the Constitution of Western Nigeria:

Regulations 4, 5, 6(2) and 7 of the Emergency Powers (General) Regulations, 1962.”

The Statement of Claim goes on to allege that the second defendant, pur­porting to act under the Regulations, has appointed the third defendant as Administrator; that the plaintiff will contend at the trial that the Regulations in so far as they derogate from Sections 17, 20, 21 or 27 of the Constitution of the Federation, and the restriction order on him and those on the other Ministers of Western Nigeria were and are not reasonably justifiable for de­aling with the situation that existed when Parliament passed its resolution or that has existed since; and that the third defendant intends to exercise and has been exercising the powers vested in him by the regulations: Whereupon the plaintiff claims –

“(1)   a declaration that

(a)     the Emergency Powers Act, 1961, is ultra vires the powers of Parliament, unconstitutional and invalid;

(b)     all the Regulations made under the said Emergency Powers Act, 1961, are void and of no effect;

(c)     Regulations 4, 5, 6 and 7 of the Emergency Powers (Gen­eral) Regulations, 1962 L.N. 54 of 1962 are unconstitu­tional, invalid and of no effect;

(d)     the Emergency Powers (Detention of Persons) Regula­tions, 1962, are altogether void and of no effect;

(e)     the plaintiff is the lawfully appointed Premier of Western Nigeria and there is and has at all material times been a duly constituted Government in that Region;

(f)      the Emergency Powers (General) Regulations, 1962, are void insofar as they purport to suspend the offices of the plaintiff as Premier, member of the Executive Council and of the House of Assembly to vest the right to exercise the executive authority of the Region in anyone other than the Governor and officer subordinate to him.

(2)     an injunction restraining the 3rd defendant from exercising the powers vested in him as Administrator or giving effect or further giving effect to any order or direction made or given by him in purported exercise of powers vested in him by any of the regula­tions which are or may be held to be void or ultra vires.”

Those claims are to be decided after hearing the action. For the moment the Court has had to consider the plaintiffs application for an interlocutory injunction restraining the third defendant from exercising the powers vested in him as Administrator or giving effect to any direction or order of his under the Emergency Powers (General) Regulations, 1962, and the Emergency Powers (Restriction Orders) Regulations, 1962, pending the determination of the action.

There is an affidavit by the plaintiff in support of his application; briefly, it states that he has been a member of the Western House of Assem­bly; that he was, on 21st May, 1962, appointed Premier and sworn in, and that the Governor has also appointed Ministers on his advice; that he pres­ided over the first Executive Council meeting on the 24th May; that when the House of Assembly met at 9 a.m. on the 28th May the ex-Premier’s sup­porters and the opposition members caused violent disorder and the Police intervened and dispersed the members with tear gas, but the supporters of the plaintiff’s Government did nothing to contribute to the disorder; that when the House re-assembled at about 11.40 a.m. the disorder was repeated and the Police intervened in like fashion as before, but his supporters took no part in the disorder; that he continued his duties as Premier and had a meeting at his house with his Ministers on water supply and roads on the 28th; that on the 29th he heard the broadcast of Parliament’s resolution, which was passed without consulting him or his Ministers; that in the evening he was served with a restriction order; that – and here I quote paragraph 8 of the affidavit –

“To the best of my knowledge and belief there has at no material time been any form of public disturbance of civil commotion in Western Nigeria save and except for the incidents herein before referred to in the House of Assembly. From the time of my ap­pointment the only incident reported to me by the police was an occasion when Chief Akintola had broken through the door of the Premier’s Office. Although the Commissioner of Police had access to me at all times he made no suggestion that he antici­pated civil commotion or that public tranquility was threatened in any way.”

And the final paragraph is that he has not been removed from Office by the Governor but cannot discharge his duties as Premier so long as he is re­stricted to three miles from the township of Oshogbo.

Arguing the Motion for the interlocutory injunction Mr. Dingle foot, for the applicant, submitted that the steps taken by the Federal Parliament to declare a state of public emergency are not authorised by the Constitution and all action following such declaration is invalid; the appointment of an Administrator, he submitted, is an unlawful usurpation of authority. If the intention of the Constitution is to reserve to the Federal Parliament the power to usurp the authority of the Regional Government in case of emergency, it was submitted, the constitution would say so in explicit lan­guage as did the Constitution of India.

Mr. Foot put his submissions under five heads. Under the first head, he referred to Section 5(1) of the Constitution of the Federation which states:

­”Subject to the provisions of this Constitution and the Nigeria In­dependence Act, 1960, the constitution of each Region shall have the force of law throughout that Region and if any other law is inconsistent with that Constitution, the provisions of that Con­stitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

This, he argued, rendered void any law passed for the Western Region by the Federal Government, and in this regard all the Emergency Regulations passed are invalid; also that section 32 of the constitution of the Western Re­gion provides for a Governor who is to exercise the executive authority in the name of the Queen, and any attempt to deprive the Region of its Gover­nor, as was done in this matter, is an attempt to override the provisions of the Constitution.

Arguing the 2nd head of his submission, Mr. Dingle Foot submitted that Section 3 of the Emergency Powers Act, 1961, gives the Governor-Gen­eral unusual and unfettered power, much wider than the Parliament itself possesses.

The third submission made is that there must have been a period of emergency before Parliament can invoke power under Section 65 of the Constitution. Matters outside the Legislative lists only, it was argued, can be dealt with by Emergency Regulations. It was submitted that the Emergency Powers Act, 1961, is ultra vires Federal Parliament and is invalid, and it offends against the provisions relating to the provisions of human rights in the Constitution.

Under the fourth head, it was submitted that the declaration of Public emergency was not a proper or valid discretion of what was vested in Parlia­ment. It was stated that there were no grounds for Parliament to declare a state of emergency that a males fide use of the discretion vested in Parliament can be questioned, and the incident which took place on the 29th May, 1962, in the House of Assembly in Western Nigeria is not enough to declare a state of emergency.

The submission under the fifth head was that the Regulations and the various restrictive orders made under the Regulations were not reasonably justifiable for dealing with the situation which existed during the emergency. The words “reasonably justifiable” in Section 28 of the Constitution, it was submitted, is a matter for the Court to decide. A scene of disorder in the House, and nowhere else in any part of the Western Region, cannot be reasonably justifiable for evoking all the powers under the Emergency Pow­ers Act.

Mr. Dingle Foot further urged the Court to consider that the hardship on the applicant who is kept out of office is much greater than on the defen­dant (the Administrator); it is greater injustice, he said, that the applicant’ and his Ministers be kept out of their public duties.

The learned Attorney-General submitted three points in his reply. He observed that it would appear that Parliamentary Resolutions and Orders are being brought to Court for questioning. Section 5(1) of the Constitution of the Federation, he submitted, should be read with sub-section (2). Powers assumed by Parliament under Section 65 of the Constitution, it was argued, are not limited to the exercise of residual powers. The situation during an emergency, he submitted, is that Parliament now has paramount and unli­mited power in the Region.

The learned Attorney-General then submitted that the taking over of Executive Powers in the Region in case of emergency is the intention of the constitution and it need not necessarily be in explicit terms; it is enough that it is evident from the wording of the Constitution. In this respect, he referred to Section 122 of the Australian Constitution, the wording of which is not dissimilar to Section 65 of its Nigerian counterpart, where no express power was given to the Federal Government. We were referred to the case of Au­stralian National Airways Property Ltd. V The Commonwealth (1945) 71 C.L.R. 29 at p.62 which, it was argued, supports this view.

The third point submitted by the learned Attorney-General was about delegation of powers. He argued that it would be difficult to carry on the business of Government in the modern world if Parliament cannot delegate its powers. We were referred on this point to the judgment of Griffiths, C. J. in Baxter V Ah-Way (1909) 8 C.L.R. 626 at p. 632.

It seems to us that the point involved in this particular matter is much more fundamental than in F.S.C. 166/1962; [1962] 2 SCNLR 30. F.R.A. Williams V Dr. M.A. Majekodunmi, in which we have just read out our ruling. In the paragraphs 6, 7 and 8 of his affidavit, the applicant in this matter stres­sed the facts that he has not been removed from the office of the Premier by the Governor and so long as he is restricted to three miles from the township of Oshogbo he cannot discharge his duties as a Premier. This, indeed, is a difficult situation. It has been brought to our notice that he is not the only one who claims to be the Premier of the Western Region. The Premier who was dismissed by the Governor still claims to be the Premier and there is al­ready an action filed in Court to this effect. Still the applicant wishes to be free from restriction, and as his affidavit shows, in order that he may be free to carry out his duties as the Premier. It appears to us that this is one of the causes of the public emergency in the Western Region and this Court will be loath at this stage to make an order which is likely to worsen the situation al­ready created at present.

We are unable to say on the argument before us at present that the Emergency Powers Act, 1961, and the Regulations made thereunder are in­valid in their entirety or that they are unconstitutional. We have no doubt more arguments will be put forward at the hearing of the substantive action. We however feel that on the question whether or not there were sufficient grounds for Parliament to declare a state of emergency, it is unnecessary for us to rule on the submission that if Parliament acted mala fide in making a declaration of a state of public emergency the Court could hold it invalid, since it is impossible to say in the present case that there was no ground to justify a declaration; it is not for this Court to go outside the provisions of Section 65(3) of the Constitution of the Federation defining emergency. It reads:

(3)     In this Section “period of emergency” means any period during which –

(a)     The Federation is at war;

(b)     there is in force a resolution passed by each House of Parli­ament declaring that a state of public emergency exists; or

(c)     there is in force a resolution of each House of Parliament supported by the votes of not less than two-thirds of all the members of the House declaring that democratic institu­tions in Nigeria are threatened by subversion.

As there is no argument to the contrary, this Court accepts that subsec­tion (b) has been conformed with. In the circumstances we must refuse the prayer made by the applicant.

BRETT, F.J.: I concur.

TAYLOR, F.J.: I concur.

l BAIRAMIAN, F.J.: I concur.

Application for Interlocutory Injunction dismissed.


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