ATTORNEY-GENERAL OF BENDEL STATE VS CHIEF C.O.M. AGBOFODOH & ORS (1999)

ATTORNEY-GENERAL OF BENDEL STATE VS CHIEF C.O.M. AGBOFODOH & ORS

(1999) LCN/2881(SC)

In the Supreme Court of Nigeria

Friday, February 19, 1999


Case Number: SC. 107/1989

 

JUSTICES:

MUHAMMAD LAWAL UWAIS

EMANUEL,JUSTICE, SUPREME COURT

OBIOMA OGWUEGBU CHIEF JUSTICE NIGERIA

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

UTHMAN MOHAMMED JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU,JUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH,JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT

 

APPELLANTS

ATTORNEY-GENERAL OF BENDEL STATE

 

RESPONDENTS

1. CHIEF C.O.M. AGBOFODOH

2. CHIEF JACKSON ONWURIE

3. CHIEF JACKSON IKPESAN

(For themselves and on behalf of Ekpan Community of Delta State substituted on 27/5/97 by order of court) (For themselves and on behalf of Ekpan Community of Delta State, substituted on 27/5/97 by order of court)’

 

RATIO

WHETHER THE COURT OF APPEAL WAS RIGHT IN OVERRULING THE DECISION OF THE TRIAL COURT BECAUSE HE HAD NO JURISDICTION TO HEAR THE MATTER 

Now, the 1977 Decree was Promulgated to provide a general validation in respect of all inquiries instituted by the Military Governor of a State and all actions taken in execution of the policy of the Government of that State on the matter in respect of which the inquiries were instituted. Sections I and 2 of the 1977 Decree provide as follows:

“1. (1) Where on or after the commencement of this Decree (but before 30th September 1977) the appropriate authority in a State has instituted any tribunal or inquiry (however described or constituted)-

(a) to inquire into any matter concerning the administration of the affairs of any person or of any body, whether corporate, in the State; or

(b) to inquire into any aspect of the exercise of his official duties by a public officer of the State; or

(c) to inquire into the conduct of any person whether or not a public officer of the State in so far as it concerned any of the matters mentioned in paragraph (a) or (b) above; or

(d) to inquire into any matter whatsoever in the State the tribunal or inquiry as aforesaid shall notwithstanding anything to the contrary in any enactment, law or rule of law, be deemed to have been validly instituted or constituted.

(2) The question whether any tribunal or inquiry to which subsection (1) of this section relates was or has been validly instituted or constituted or whether any Law, Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such question the action or other proceeding shall be void.

(2) (1) Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which section 1 of this Decree applies respecting

(a) The forfeiture or other disposal of the property of any person; or

(b) the dismissal, retirement or any other exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or unincorporate, in the State, shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.

(2) The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void.”

It is clear from the foregoing provisions that the jurisdiction of a court can be ousted under the 1977 Decree either under section 1 subsection (2) or section 2 subsection (2) thereof. For the provisions of section 1 subsection (2) to apply, the Edict must meet the requirements of one or more of the paragraphs under subsection (1) of section 1, namely (a), (b), (c), or (d)- Per UWAIS CJN.

 

 

UWAIS, CJN. (Delivering the Lead Judgment):

This is an appeal from the decision of the Court of Appeal, Benin (Ogundare, JCA., as he then was, Musdapher and Ajose-Adeogun, JJCA.). The Appellant was the defendant in the High Court of former Bendel state, sitting at Benin (Moje Bare, J.) while the Respondents, by their Predecessors, were the Plaintiffs. The writ of summons was taken out on the 8th day of May, 1978. By a Motion on Notice brought in the High Court by one Kenera Denedo, for himself and on behalf of Ubeji community of Warri Local Government Area, the applicant was joined on the 18th day of October. 1979 as a co-defendant to the action. The Respondents were unhappy with the order of joinder granted and so they appealed to the Court of Appeal against the joinder, but, from the record before us, nothing seems to have become of the appeal. Later Kenera Denedo filed another Suit (No. W/76/80) on the same dispute in the same High Court. this time holden at Warri, in which he made the Attorney-General of Bendel State and Anthony Atiri and Agbalagba Awhaisoba Jointly for themselves and on behalf of Ekpan Community of Ethiope Local Government Area. defendants.

By a motion on notice brought in Benin on the 23rd day of February, 1981, by Kenera Denedo, a request for the transfer of the earlier suit from Benin to Warri Judicial Division was made on the ground that the two suits might be determined simultaneously. There is nothing on the record of proceedings to show that the motion on notice was either heard or granted. The last time that Kenera Denedo was shown in the record of proceedings as 2nd defendant in the case, was during the High Court’s sitting on the 16th day of June, 1981.

On the 12th day of December. 1981, the Appellant, as the only defendant to the action, brought a motion on notice under Order 22 rules 2,3 and 4 of the Bendel State High Court (Civil Procedure) Rules praying that the legal points mentioned in his amended statement of defence be determined before the trial of the suit began. The application was granted by Moje Bare, J, on the 11th day of March, 1982. Argument by the parties was heard between the 4th day of February, 1983 and the 12th day of August 1983. Ruling on the application was delivered on the 10th day of October, 1983. The learned trial Judge held that the jurisdiction of the High Court was ousted. He concluded his ruling as follows:-

“In the result this application ought to succeed.

Order: Order as prayed.

Pursuant to the provisions of Order 22 rule 3 of the High Court (Civil Procedure) Rules. Cap. 65, Bendel State Laws, 1976, it is my view that the points of law raised in this application substantially dispose of the action; to my mind, once a matter comes within or among the category or class of cases or acts which are protected or covered by the ouster provisions of those statutory enactments, the jurisdiction of the Courts is ousted automatically and the courts are thereby precluded from entertaining or adjudicating upon them by operation of law: See Attorney-General, Bendel State and 2 Others v. A.I. Wilson; suit No. FCA/B/115/82 delivered on 28th April, 1983 by the Federal Court of Appeal.

Plaintiffs’ claims are hereby dismissed.”

Now the plaintiffs’ claims in question are-

“(1) A DECLARATION that Section 5 of the Bendel State Edict, No. 7 of 1978 is unconstitutional, illegal and ultra vires the government of Bendel State and is therefore null and void.

(2) A DECLARATION that the Bendel State Edict No. 7 of 1978 (Ekpan and Ubeji Communities (Riots and Clashes) (Determination) Edict, in which the Ekpan community has been directed to pay N55,000.00 as part of the total cost of ‘rehabilitation’ and ‘reconstruction’ of Ubeji Village is unconstitutional, oppressive, illegal and ultra vires the Government of Bendel State and is therefore null and void.

(3) A DECLARATION that the Bendel State Edict No. 7 of 1978 (Ekpan and Ubeji Communities (Riots and clashes) Determination Edict, in which it was directed in section 3 of the Edict that the Ekpan community should pay the said sum of N55, 000.00 to the treasury of Bendel State Government within one month from 13th of February 1978. is unconstitutional, unlawful and ambiguous and is therefore null and void.

(4) A DECLARATION that section 1 of Bendel State Edict No. 7 of 1978 is unconstitutional, illegal and ultra vires the Government of Bendel State and is therefore null and void.”

The facts which gave rise to the case are briefly as follows:

On the 15th day of August, 1977 there was a conflict involving riots and clashes between two neighbouring villages of Ekpan in Ethiope Local Government Area and Ubeji in Warri Local Government Area. As a result, the then Military Governor of Bendel State set up a Commission of Inquiry in exercise of his powers under Section 2 subsection (1) of the Commissions of Inquiry Law, Cap. 23 of the Laws of Western Region of Nigeria, 1959 applicable In Bendel State. A Legal Notice No. 89 of 1977 was published in the Bendel State Gazette appointing Hon. Justice B.A. Omosun, as the Sole Commissioner for the Inquiry. The Legal Notice contained the terms of reference of the Commission. It was to inter alia “make recommendations towards peace, law and order in the two villages and other recommendations including and/ or individual punishment, if any,”

The inquiry was accordingly conducted. It assigned blame for the riots and clashes to the Ekpan Community. A white paper on the report submitted by the Commissioner was issued by the Military Government of Bendel State accepting the Commission’s recommendations. Next, an Edict called “Ekpan and Ubeji Communities (Riots and Clashes) (Determination) Edict No. 7 of 1978” was promulgated by the Military Governor. Sections 2, 3, 4 and 5 of the Edict provide as follows:

“2. In respect of the riot and clashes, Ekpan and Ubeji Communities (Riots And Clashes) herein before referred to, it is hereby declared as follows:

(a) The people of Ekpan are the aggressors of the said riots and clashes;

(b) The people of Effurun are the aiders and abettors;

(c) The value of the houses totally burnt and partially destroyed as well as personal chattels destroyed or looted is about N110, 000.00,

3. It is hereby directed that the total cost of rehabilitation and reconstruction shall be paid as follows:

(a) Ekpan community shall pay N55,000.00 (i.e. 50 per cent of N110,000.00) to the Government treasury within one month from the date of commencement of this Edict.

(b) Ubeji community shall bear the loss amounting to N27, 000.00 (i.e. 25 per cent of N 100,000.00)

(c) The Government of Bendel State of Nigeria shall pay to the Government Treasury the balance of N27, 500.00 (i.e. 25 per cent of N 110,000.00)

(d) Payments referred to in paragraphs (a) and (c) above shall be held in trust by the Accountant-General, for the Ubeji community and shall be used exclusively for the reconstruction and rehabilitation of Ubeji village.

4. If the full payment falling due under section 3(a) of this Edict or any part of the sum is not made within twenty one days next after the date fixed for payment thereof, it shall be lawful for the Military Governor to direct by an order to be published in the Gazette that a distress be levied upon the movable and immovable properties of all or any members of the community upon whom the payment has been imposed in respect of the amount then remaining unpaid.

5. An appeal shall not lie from any order made under this Edict which shall be final and shall not be liable to be contested by suit or otherwise.”

It was as a result of this Edict that the Ekpan community took out a writ of summons against the appellant asking for the declarations aforementioned.

Aggrieved by the ruling of Moje Bare, J., the Ekpan community appealed to the Court of Appeal. In its decision per Ogundare, JCA. (as he then was) who wrote the leading judgment, the Court of Appeal held thus:

“Section 5 of the Edict, being inconsistent with section 22(1) of the 1963 Constitution, is, therefore, void. See Section 1 of the 1963 Constitution, as modified by Decree No. 1 of 1966 (Second Schedule) which modification was saved by section 14(2) of Decree No. 32 of 1975. The section in its modified form reads:

  1. This Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution of a State) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

Provided that this Constitution shall not prevail over a Decree, and nothing in this Constitution shall render any provision of a Decree void to any extent whatsoever.”

Sections 2 and 3 of the Edict offend against sections 22(2) (of the 1963 Constitution) and to the extent of the inconsistency, the sections are void. Imposing of penalties or forfeitures can only be validly levied for breach of the law, whether under civil processor after conviction for an offence. That is not the case here.

It has been argued that section 4 (of the Edict) offends against section 31 of the 1963 Constitution in that ‘distress’ amounts to compulsory acquisition without compensation, which was prohibited by section 31(1) of the (1963) Constitution. I agree with the submissions of the learned counsel for the appellants. Clearly, section 4 envisages the compulsory taking possession of the property of the appellants in the events of their failure to pay the amount imposed on them by section 3. This offends against section 31(1) of the Constitution. Nor does the Edict come under subsections (2) and (3) (thereof) for that section to be saved. It is therefore my conclusion that section 4 of Edict No. 7 (of 1978) is void for inconsistency with section 31(1) of the Constitution of the Federation. 1963.” (parenthesis mine)

In conclusion the learned Justice allowed the “appeal and set aside the judgment (sic ruling) of the court below” and found that the plaintiffs’ claims were proved and he entered judgment for them, accordingly.

The Defendant was not satisfied with the decision; and so he appealed to this court. He filed a brief of argument in which he stated the following 3 issues for our determination:

“1. Whether the Bendel State Edict No. 7 of 1978 and any other act or thing done by the Military Governor of Bendel State came under the protection of Decree No. 18 of 1977 to oust the jurisdiction of the courts.

2. Whether the learned justices of the Court of Appeal could suo motu declare the Collective Punishment Law, Cap, 40 of Bendel State (sic) unconstitutional, null and void so as to enable them declare Edict No. 7 of 1978 void, when no such relief was claimed by the plaintiffs/respondents.

3. Whether the reparation of N55, 000.00 imposed on the plaintiffs/ respondents was a conviction or a mere implementation of the findings of the Omosun Commission of Inquiry protected by Decree No. 18 of 1977.”

The Respondents countered by formulating 4 issues in their brief of argument for our consideration. These are –

“1. Whether the Bendel State Edict No, 7 of 1978 falls under the categories of the statutes enjoying the protection of Decree No. 18 ousting the jurisdiction of the court.

2. Whether section 5 of Edict of No. 7 of 1978 did not conflict with the 1963 constitution and if the answer is in position (sic) what is the legal effect of such conflict.

3. Whether sections 2 and 3 of Edict No. of 1978 did not conflict with 1963 Constitution and Decree No. 32 of 1975 and what is the effect of such conflict.

4. Whether section 3 of the Edict No. 7 of 1978 can seek protection under the Collective Punishment Law, Cap. 40 of the Laws of Bendel State.”

At this stage, it is necessary to draw attention to the fact that the point determined by the learned trial Judge was whether his court had the jurisdiction to entertain the plaintiffs’ claims. He ruled that his jurisdiction was ousted and consequently the action (i.e. plaintiffs’ claims) was disposed of. This is what the learned trial Judge stated in his ruling which was the subject of the appeal in both the court below and this court:

“I have given very careful and most serious consideration to the various aspects of all the submissions made in this application by counsel for both parties. There is no doubt that the main issue which calls for a decision is the Point relating to the jurisdiction of this court or any court for that matter to inquire into the validity of Edict No. 7 of 1978 of Bendel State or any act done in respect of the tribunal of enquiry setup in consequence thereof… the jurisdiction of the courts (sic) is ousted automatically and the courts (sic) are thereby precluded from entertaining or adjudicating upon them by operation of law.” (Italics mine)

As allowed by Order 22 rule 3 of the Bendel State High Court (Civil Procedure) Rules, Cap. 65, the learned trial Judge, at the same time of holding that the jurisdiction of the court was ousted, dismissed the plaintiffs’ claims.

The Court of Appeal in allowing the plaintiffs’ appeal, after holding that the jurisdiction of the lower court was not ousted, entered judgment for the plaintiffs on their claims as follows:-

“In conclusion, I allow this appeal and set aside the judgment (sic ruling) of the court below. I find the Plaintiffs’ claims are proved and I enter judgment for them accordingly. Consequently, I hereby declare-

(1) That section 5 of Edict No. 7 of 1978 of Bendel State is inconsistent with section 22(1) of the Constitution of the Federation, 1963, and therefore void.

(2) That sections 2&3 of the said Edict are equally inconsistent with section 22(2) of the said Constitution and are, therefore, void.

(3) that section 4 of the said Edict is inconsistent with section 31(1) of the said Constitution and is equally therefore, void.” (Italics mine)

It appears to me, therefore, that the real issue for determination by us is whether the Court of Appeal was right in overruling the decision of the learned trial judge that he had no jurisdiction to hear the plaintiff action. This is the point raised by the first issue formulated by the Appellant and the first issue formulated by the Respondents. The determination of the merit of the claims which is consequential by virtue of Order 22 rule 3 of the High Court (Civil Procedure) Law Cap. 65 will be dependent upon the answer given for the appellant’s and respondents’ issues in question.

Learned counsel for the Appellant argued in his brief of argument that section 1 of the Tribunal or Inquiries (Validation etc. Decree, 1977, No. 18 of 1977, permitted the appropriate authority in a State to constitute any tribunal or institute an inquiry into any matter concerning the administration of the affairs of any person, or of any body, whether corporate or unincorporated, in the State; the conduct of any person whether or not a public officer of the State and to inquire into any matter whatsoever in the State.

He referred to the finding made by the Court of Appeal that Edict No. 7 of 1978 was not caught by the provisions of section 2 subsection (1) of the 1977 Decree, and submitted that the Court of Appeal was in error when it ascribed to the word “person” in section 2 subsection (1)(a) of the 1977 Decree a restrictive meaning. He argued that the Court of Appeal failed to take into consideration the fact that the plaintiffs brought a representative action on behalf of the Ekpa community. The word “Person”, he said, had been defined by the Interpretation Act, 1964 to include any body of persons corporate or incorporate. He contended that the preamble to Edict No. 7 of 1978 clearly shows the purpose of the enactment which falls under the provisions of the 1977 Decree. Consequently he submitted, that the 1978 Edict cannot be challenged in any court by virtue of the provisions of section 2 subsection (2) of the 1977 Decree, He cited in support the case of Kasikwu Farms v. Attorney-General of Bendel State (1986) 1 NWLR (Part 19) 695 at P. 707 per Belgore, JCA. (as he then was) .

Learned counsel argued further that the 1978 Edict is a law validly made by the Military Governor of Bendel State, pursuant to his powers to maintain peace, order and good government within the Bendel State. Consequently, the Edict falls under the provisions of section 3 subsection (3) of the Constitution (Suspension and Modification) Decree, 1966, No. 1 of 1966 and section 1 subsection (3) of the Constitution (Basic Provisions) Decree, 1975. No. 32 of 1975 both of which provide that the Military Governor of a State shall have power to make laws for the peace, order and good government of the State. Learned counsel referred to the cases cited by the Court of Appeal in support of its decision and submitted that those cases are distinguishable from the present case in that the Edicts challenged in the cases did not derive their force from any Decree whereas Edict No. 7 of 1978 is supported by the 1977 Decree. He cited in support the Supreme Court decisions in the cases of Adejumo & Anor. v. Col. M. Johnson (1974) All NLR 28 at p. 34 and Uwaifo v. A-G of Bendel State & Ors. (1982) 7 SC. 124 at p. 219. The cases in question referred to by the Court of Appeal are – Adarnolekun v. Council of University of lbadan, 1968 NMLR 253; Ereku v. Military Governor Bendel State, (1974) 10 SC. 59; B. C. Onviuke v. E.S.I.A.L.A. (1971) 10 SC. 77; A-G of Midwestern State v. Chief Sam Warri Essi (1977) 4 SC.71; Agip (Nig.) Ltd. v. A-G of Lagos State (1977) 11-12 SC. 3 and Peenok Investments Ltd. v. Hotel Presidential Ltd., (1982) 12 SC. 1.

Learned counsel submitted that once the language of a statute or Decree is clear and unambiguous, as in the case of the 1977 Decree, the courts had always enforced the ouster provisions in the exercise of their jurisdiction. He cited in support the case of Nigerian Ports Authority v. Panalpina World Transport (Nig.) Ltd. & Ors., (1974) 1 NMLR 82 at pp. 95 and 96.

In reply, in the briefs of the respondents, learned counsel for the respondents submitted that section 2 of the 1977 Decree does not oust the jurisdiction of the High Court having regard to the peculiar fact of this case. He argued that the 1978 Edict deals with the proprietary rights of citizens and as such must be strictly construed in accordance with the letter of the Edict. He cited in support the case of Peenok Ltd. v. Hotel Presidential Ltd., (1982) 12 SC. 1 at pp 25-26. Also that where a statute seeks to oust the jurisdiction of a court, strict construction will apply; go that if the word of the statute is capable of having two meanings, the meaning which preserves the ordinary jurisdiction of the court would be preferred – Barclays Bank v. Central Bank (1976) 6 SC. 175 at pp. 188-189 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

Learned counsel contends that before the appellant can claim protection under section 1 subsection (2) of Decree No. 18 of 1977 five conditions must be satisfied. These are –

(I) The tribunal of inquiry must have been instituted by the Military Governor, who is the appropriate authority in the State.

(2) The tribunal must have held inquiry and submitted a report.

(3) An Edict or a subsidiary instrument must have been promulgated for the implementation of the report.

(4) Apart from the Edict or the subsidiary instrument, the Military Governor must have performed an act or took a step to implement the report.

(5) The Edict or subsidiary instrument or any act or step taken must be for the forfeiture or disposal of property or dismissal or retirement or exercise of disciplinary control over any public officer of the State.

Therefore, the 1978 Edict must be shown to implement the report of the Justice Omosun Commission of Inquiry that recommended the forfeiture of the assets of the Respondents. He argued that the 1978 Edict neither forfeits nor disposes of the property of the Respondents nor dismisses, retires or exercises any disciplinary control over any public officer or any member of anybody whether ) corporate or unincorporate in Bendel State. As such the Edict is not protected by the 1977 Decree. The case of Wilson v. A-G of Bendel State (1985) 1 NWLR (Part 14) 572 was cited in support. Learned counsel contended that the cases cited by the Appellant’s counsel are distinguishable from the present case in that in those cases forfeiture of property had taken place. The case in question are Uwaifo A-G of Bendel State (supra) and A-G of Lagos State v. Dosunmu (1989) 3 NWLR (Part 111 ) 552.

It is further argued that the action taken by the Military Governor and the effect of the 1977, Decree is to impose a fine of N55, 000.00 as a penalty or Punishment and not a forfeiture. Learned counsel submitted that there is a distinction between “forfeiture”, “fine” and “punishment” and referred to their definitions in the Interpretation Act. 1964 in sections 7, 8, and 18 subsection (3) thereof. He, therefore, contends that the words “penalty” “forfeiture” or “punishment” in sections 7 and 8 of the Interpretation Act are mutually exclusive and moan different things because section 18 Subsection (3) of the Interpretation Act provides that the words “or” and “other” in any enactment, shall be construed disjunctively and not as implying similarity. He further submitted that the 1977 Decree did not empower the Military Governor to punish the Respondents by imposing a tine and when he did so he acted outside the confines of the enabling Decree. Since the 1978 Edict is outside the scope and contemplation of the 1977 Decree; wherever it conflicts with the provisions of the Decree or the unsuspended provisions of the 1963 Constitution, the Courts can exercise Jurisdiction to declare the Edict as unconstitutional. He cited a number of cases in support of the contention. He finally submitted that the 1978 Edict does not fall under the provisions of the 1977 Decree to enable this Court uphold the ouster of jurisdiction by the Decree.

Now, the 1977 Decree was Promulgated to provide a general validation in respect of all inquiries instituted by the Military Governor of a State and all actions taken in execution of the policy of the Government of that State on the matter in respect of which the inquiries were instituted. Sections I and 2 of the 1977 Decree provide as follows:

“1. (1) Where on or after the commencement of this Decree (but before 30th September 1977) the appropriate authority in a State has instituted any tribunal or inquiry (however described or constituted)-

(a) to inquire into any matter concerning the administration of the affairs of any person or of any body, whether corporate, in the State; or

(b) to inquire into any aspect of the exercise of his official duties by a public officer of the State; or

(c) to inquire into the conduct of any person whether or not a public officer of the State in so far as it concerned any of the matters mentioned in paragraph (a) or (b) above; or

(d) to inquire into any matter whatsoever in the State the tribunal or inquiry as aforesaid shall notwithstanding anything to the contrary in any enactment, law or rule of law, be deemed to have been validly instituted or constituted.

(2) The question whether any tribunal or inquiry to which subsection (1) of this section relates was or has been validly instituted or constituted or whether any Law, Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such question the action or other proceeding shall be void.

(2) (1) Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which section 1 of this Decree applies respecting

(a) The forfeiture or other disposal of the property of any person; or

(b) the dismissal, retirement or any other exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or unincorporate, in the State, shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.

(2) The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void.”

It is clear from the foregoing provisions that the jurisdiction of a court can be ousted under the 1977 Decree either under section 1 subsection (2) or section 2 subsection (2) thereof. For the provisions of section 1 subsection (2) to apply, the Edict must meet the requirements of one or more of the paragraphs under subsection (1) of section 1, namely (a), (b), (c), or (d). Now the Court of Appeal found as follows-

“It is not in dispute that as the OMOSUN COMMISSION OF INQUIRY was set up in August, 1977 it was covered by the validation provision of section 1 (1) of Decree 18 nor was the Commission’s validity questioned in these proceedings. Now, section 2(1) of the Decree validates any Edict or subsidiary instrument made in respect of the implementation of the report of any tribunal or inquiry to which Section 1 of the Decree applies. This validation, in my view, applies only where the Edict or subsidiary instrument is in respect of-

(a) The forfeiture or other disposal of the property of any person, or

(b) The dismissal, retirement or any other exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or unincorporate in the State.

Unless Edict No. 7 is one such Edict, the outer of court’s jurisdiction in section 2(2) will not apply. Reading Edict No. 7 as a whole, I am of the view, and I so hold, that it is not an Edict to which section 2(1) of the Decree relates in that it neither forfeits or disposes of the property of any person nor does it dismiss, retire or exercise any other disciplinary control over any public officer or any member of any body, whether corporate or unincorporate, in the State.

I am not unaware of the decision of the Supreme Court in F.S. UWAIJO V. ATTORNEY-GENERAL OF BENDEL STATE & 4 ORS., (supra) which has to do with the application of Decree No. 18 of 1977, particularly sections I and 2 thereof .

It is my respectful conclusion, therefore, that Edict No. 18 of 1977, and as such, the suspension of Chapter II of the constitution of the Federation, 1963 (as provided for under section 3(2) of 1977 Decree) will not apply to the consideration of its validity, or otherwise of an Edict and (2) that Edict No. 7 of 1978 not being one to which subsection (1) of Section 2 of Decree No. 18 of 1977 relates, the ouster of the court’s jurisdiction in subsection 2 of section 2 thereof does not apply to preclude the court from inquiring into its validity nor does section 3(2) apply to suspend Chapter III of the Constitution in relation to the said Edict;” therefore, that edict No. 7 of 1978 does not come under section 21(1) of Decree No. 18 of 1977, and as such, the suspension of Chapter II of the Constitution of the Federation, 1963 (as provided for under section 3(2) of 1977 Decree) will not apply to the consideration of its validity.

Having held as above that (1) the court has competence to inquire into and pronounce on the validity or otherwise of an Edict and (2) that Edict No. 7 of 1978 not being one to which subsection (1) of Section 2 of Decree No. 18 of 1977 relates, the ouster of the court’s jurisdiction in subsection 2 of section 2 thereof does not apply to preclude the court from inquiring into its validity nor does section 3(2) apply to suspend Chapter III of the Constitution in relation to the said Edict;”

For the sake of emphasis, section 1 subsection (2) of the 1977 Decree provides as follows:-

 

“(2) The question whether any tribunal or inquiry to which subsection (1) of this section relates was or has been validly instituted or constituted, or whether any Law, Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such question the action or other proceeding shall be void.”

When examined closely, it will be seen that the ouster provisions apply dis-junctively to each of the following questions:-

(1) Whether a tribunal or inquiry has been validly instituted,

(2) Whether any Law, Edict or subsidiary instrument under which a tribunal or inquiry was instituted (or purported to have been instituted) had been validly made.

The issues in this case do not concern any of the two questions. The provisions of the 1978 Edict do not apply to the institution of a tribunal or inquiry but apply to incidents after the inquiry; that is the execution of the recommendations made by an inquiry. Secondly, the 1978 Edict is not an enabling Edict to facilitate the institution of the inquiry. Therefore, the ouster of jurisdiction under section 1 subsection (2) of the 1977 Decree does not apply to the present case.

Similarly, section 2 subsection (2) of the 1977 Decree provides:

“(2) The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void.”

For these provisions to apply in relation to the present case, the following must be met –

(1) The 1978 Edict must relate to any of the events mentioned under section 2 subsection (1) (a) and (b) of the 1977 Decree, namely the forfeiture or disposal of the property of any person; or the exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or unincorporate, within the Bendel S

 

COUNSELS

L.U. Unosekan for the Appellant

Amaechina for the Respondents.

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