IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 24TH DAY OF APRIL, 1970
APPEAL NO: SC.58/69
(2000) 6 NWLR (Pt.660)228
Before Their Lordships
ADEMOLA ADETOKUNBO, J.S.C.
GEORGE BAPTIST AYODOLA COKER, J.S.C.
IAN LEWIS, J.S.C.
CHARLES OLUSOJI MADARIKAN, J.S.C.
UDO UDOMA, J.S.C.
1. E.O. LAKANMI
2. KIKELOMO OLA
(by her guardian and next friend E.O. Lakanmi) APPELLANTS
1. THE ATTORNEY-GENERAL (WEST)
2. THE SECRETARY TO THE TRIBUNAL
3. THE COUNSEL TO THE TRIBUNAL RESPONDENTS
LEAD JUDGEMENT DELIVERED BY ADEMOLA, C.J.N.
This is an appeal from the Western State Court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of Western State sitting at Ibadan.
The application before the High Court was for an order of certiorari to remove an order dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed. The order itself which was admitted in evidence as Exhibit B in the certiorari proceedings reads:-
“Order by Assets Tribunal.
Under the provisions of section 13(1) of Edict No.5 of 1967, it is hereby ordered that Mr. E.O. Lakanmi, Kikelomo Ola (his daughter) and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature (i.e., lands, houses, etc.), whether standing in their names, or in any others of their various names and/or aliases, until the Military Governor of the Western State of Nigeria shall otherwise direct.
2. In particular, it is hereby ordered that the said E.O. Lakanmi and his said daughter mentioned above shall not operate their individual bank accounts by means of withdrawal therefrom without the consent of and only to the extent that the Military Governor of the Western State shall permit in writing.
3. It is hereby further ordered that all rents due on the properties of the said persons from henceforth shall be paid by the tenants thereof into the Western State Sub-Treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary pending the determination of the issues involved in the investigation into the assets of all those concerned.
4. Attention of all the persons concerned, and or their partners, co-directors, shareholders or nominees, or anyone who may like to have business transactions with them for any reasons or in any manner whatsoever is invited to these orders and the penalties provided by section 13(2) of the same Edict in case of the infringement thereof.
Dated August 31, 1967.”
The Judge of the High Court on December 21, 1967, dismissed the application, holding that the order was not ultra vires and that Edict No.5 of 1967 was validly made since, according to him, the Federal Military Government Decree No.51 of 1966 was not in question in the Western State of Nigeria when the Edict was made. We shall have cause to say more about Decree No.51 of 1966. He went further to say that the validity or otherwise of the order made by the chairman of the Tribunal could not be challenged since section 21 of Edict No.5 of 1967 states that:
“No defect whatsoever in anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or any proceedings, finding, order, decision or other act whatsoever of any person, the tribunal, or the special tribunal and in particular, no action or proceedings in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any court of law.”
A few days after this judgment, and indeed on December 27, 1967, the appellants filed their notice of appeal with nine grounds of appeal, to the Western State Court of Appeal.
From the grounds of appeal filed, it no doubt became obvious to the respondents what they had to meet at the hearing of the appeal; and when the appeal was pending, the Federal Military Government came to their aid by passing three successive Decrees, namely –
No.37 of 1968 – The Investigation of Assets (Public Officers and Other Persons) Decree, 1968.
No.43 of 1968. -The Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree, 1968.
No.45 of 1968. -The Forfeiture of Assets, etc. (Validation) Decree, 1968, dated August 28, 1968.
These Decrees speak for themselves as their objects are clear, and they applied throughout the Federation. It was therefore no surprise when on October 18, 1968, the Acting Principal State Counsel filed in the Western State Court of Appeal a notice of preliminary objection that the court had no jurisdiction to entertain the appeal on the following grounds, that is to:
“(1) that the proceedings in this appeal relate to a challenge of the validity of an order which has been validated for all purposes under the provisions of section 1(2) of the Forfeiture of Assets, etc. (Validation) Decree, 1968, No. 35 45;
(2) that the said proceedings have abated as from August 28, 1968 by virtue of section 2(2) of aforesaid Decree.”
We recite the whole of the Decree, No. 45 of 1968, leaving out the Schedule, as follows:
”The Federal Military Government hereby decrees as follows:-
1. (1) All orders specified in column 2 of Part A of the Schedule to this Decree and made under the provisions of any enactment or other law (repealed by subsection (1) of section 14 of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968) for the purpose of forfeiting the assets of, or adjudging liable to make reparation, any public officer or other person specified in column 1 of Part A of the Schedule to this Decree, are hereby validated for all purposes with effect from their respective dates of commencement as specified in column 3 of that Part, and accordingly the said orders shall have effect by virtue of this Decree as hereinbefore provided and the assets aforementioned shall be deemed to have been forfeited and the same may be disposed of or otherwise dealt with as provided in those orders.
(2) All orders in writing dated respectively as specified in column 2 of Part B of the Schedule to this Decree and made in respect of the public officers and other persons specified in column 1 of that Part, under subsection (1) of section 13 of the Public Officers and Other Persons (Investigation of Assets) Edict 1967 (repealed as mentioned in subsection (1) of this section) for the purpose of prohibiting dispositions of, or other dealings with, the properties of the said public officers and other persons, except to the extent and in the manner specified in the said orders, are hereby validated for all purposes with effect from the respective dates of the making thereof.
(3) All other orders, notices or documents made or given or other thing whatsoever done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of this section, are hereby validated for all purposes with effect from the dates on which the same were made, given or done respectively.
2. (1) For the avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed as mentioned in subsection (1) of section 1 of this Decree or the circumstances under which the same has been so made, given or done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising from this Decree or from any enactment or other law repealed as aforesaid.
(2) Where immediately before the date of commencement of this Decree any proceedings in any court of first instance or on appeal from such court are pending or any right to bring such proceedings has accrued in respect of any matter as to the validity of which courts are precluded from enquiring by subsection (1) of this section, the proceedings or right as aforesaid shall abate as from the date of commencement of this Decree.
3. (1) In this Decree, unless the context otherwise requires- “public officer” has the same meaning as in subsection (1) of section 13 of the Investigation of Assets (Public Officers and other Persons) Decree 1968.
(2) Subject to the provisions of this Decree, this Decree shall be read and construed as one with the Investigation of Assets (Public Officers and Other Persons) Decree 1968, and accordingly, the provisions of the last mentioned Decree shall, with necessary modifications and adaptations, apply with’ respect to orders, notices, documents and other things, whatsoever validated by this Decree.
(3) The provisions of this Decree shall have effect notwithstanding anything to the contrary contained in any decision, determination, judgment or order of any court made or given before the date of commencement of this Decree.
(4) This Decree may be cited as the Forfeiture of Assets, etc. (Validation) Decree 1968 and shall have effect throughout the Federation.”
We have not copied out the Schedule but we have to state that the present applicants’ names were included with others in the Schedule.
When on October 22, 1968 the appeal was to be heard, the Senior State Counsel for the respondents objected in limine on the grounds stated in his notice of preliminary objections aforesaid. As the same grounds were argued before us, we refrain at this stage from setting them out, except to say that the Court of Appeal ruled that Decree No.45 of 1968 was valid and that:
(1) the order, which is the object-matter of the action, has been validated by Decree No.45 of 1968, and
(2) that the Decree has also ousted the jurisdiction of the court.
Fatayi-Williams, JA, who delivered a separate judgment agreed on – (1) but did not deal with (2). The court then proceeded to strike out the appeal. It is from this judgment that the appellants have appealed to this court.
It appears clear from the above that the Western State Court of Appeal did not consider the points involved in the arguments before the high court as that court was of the view that since the passing of Decree No. 45 of 1968, it is without jurisdiction.
We feel ourselves bound, however, although that decision of the high court is now overtaken by events, to deal with some important points raised in the arguments in that court. The arguments to which we refer centre around Federal Government Decrees No.1 of 1966 and No. 51 of 1966, and Edict No.5 of 1967 passed by the Government of Western Nigeria on April 14, 1967. We will consider at this stage the history of these enactments. The Federal Military Government it is true to say, justifies its existence by the passing of Decree No. 1 of 1966. For our purpose, however, section 3 and 4 of that Decree are relevant and we reproduce them as follows:-
3. (1) The Federal Military Government 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 matter 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 included 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.
(4) If any law-
(a) enacted before January 16, 1966 by the legislature of a Region, or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region, is inconsistent with any law-
(i) validly made by Parliament before that date, or having effect as if so made, or
(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional Law shall, to the extent of the inconsistency be void.”
It is evident from these sections of the Decree that the Federal Military Government is empowered to legislate for the whole of Nigeria and that its powers are in no way derogatory to the powers that Parliament had under section 69 of the Republican Constitution of Nigeria. It is also evident that State Governments shall legislate by means of Edicts (as opposed to Decrees by the Federal Military Government), and for our present purpose, it is clear that the Legislative Lists, namely, the Exclusive Legislative List and the Concurrent Legislative List, as evidenced by our Constitution, are kept distinct by the Federal Military Government. Section 3(2) above provides –
3. (2) The Military Government of a Region –
(a) shall not have power to make laws with respect to any matter 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 included in the Concurrent Legislative List.”
But on May 24, 1966, Decree No.34 of 1966 was passed.
Section 1 reads – “Subject to the provisions of this Decree, Nigeria shall on May 24, 1966…..cease to be a Federation ….and shall as from that day be a Republic ….”
By Section 2(1) – The Federal Military Government shall be known as the National Military Government.
Section 2(1)(c) – makes the Regions a group of Provinces.
Section 2(3) – deprives a Regional Military Governor of his powers to make laws except by express delegation from the National Military Government.
The National Military Government, as it was then called, on June 28, 1966 passed Decree No. 51 of 1966 – Public Officers (Investigation of Assets) Decree which gives powers as to certain assets of public officers to be investigated. Section 5 of this Decree delegated powers to each Military Governor “in relation to their respective group of provinces” to carry out investigations in their provinces, and subsection (3) states that no order shall be made by a Military Governor except with the prior consent of the Head of the National Military Government.
Thus, it is clear that this Decree, No. 51 of 1966, provided for the investigation of assets of public officers throughout the country.
On September 1, 1966, however, Decree No. 34 was repealed by Decree No. 59 of 1966 and once again, the Government assumed the name Federal Military Government and the position before that Decree (No.34) was restored.
Decree No. 51 of 1966 relating to Investigation of Assets etc., however stands.
On April 14, 1967, the Government of Western Nigeria passed Edict No.5 of 1967 entitled Public Officers and Other Persons (Investigation of Assets) Edict 1967 35 to which we have earlier on referred in this judgment. It was by virtue of this Edict that the order Exhibit B against the present appellants by the chairman of the Tribunal was made.
The arguments before the high court were –
(1) that the Edict No.5 of 1967 is void since it purported to operate in the same field as the Federal Military Government Decree No.51 of 1966, which in fact has covered the whole field, and
(2) that some sections of the Edict are in direct conflict with the provisions of the Decree No.51 of 1966. In the High Court, and indeed in his argument before us, the Attorney- General, Western State admitted the inconsistencies with the Decree but sought that at the time the Edict was enacted (namely, April 14, 1967), the Decree No. 51 of 1966 had no force as a Decree in the Western State. He said further, that the Edict and the Decree were to be read together. The Attorney-General then submitted that Decree No. 51 of 1966 was not recognized in Western Nigeria at the time Edict No.5 of 1967 was passed and went on to say that the cumulative effect of Decree Nos. 34 of 1966, 59 of 1966, 8 of 1967, 13 of 1967 and 27 of 1967 was to make Decree No. 51 unrecognizable.
We have considered earlier on the effects of some of these Decrees like Nos. 34 and 59 and we see nothing worthy of our attention relevant to the point in the other Decree except to say that Decree No.8 of 1967 re-established the position of Decree No.1 of 1966 vesting the Supreme Military Council both the legislative and executive powers of the Government of the Federation.
Arguing further on the point, the Attorney-General relied on the provisions of section 6(i)(a) of the Interpretation Act (No.1 of 1964) which provides that ”the repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect”.
With respect, we find ourselves unable to agree with the Attorney-General that the reading of these various Decrees lead to the conclusion he had put forward. It is clear to us that Decree No. 51 of 1966 was valid and was in operation throughout the country when it was made, and the constitutional changes in the country during that period have not, to our mind, affected it. Further, it was never denied or argued that Decree No.1 of 1966 was at any time ineffective particularly in regard to sections 3 and 4 which we have earlier considered and the effect of this Decree on Edict No.5 of 1967 is to render the latter void.
We entirely disagree with the views of the Judge of the High Court in his consideration of the phrase “cover the field” as applied by the Australian Courts, when he said:-
“The Decree No.51 of 1966 has passed through four constitutional changes in the country. I think it will be sweeping to say that the intention to be inferred was the intention of the Federal Military Government at the time the Decree was enacted. The conditions in this country are unlike what is obtaining in Australia where the Constitution referred to in the cases cited is almost permanent.
But in this country since 1966 January the Constitution of the country has on many times been suspended and the constitutional Decree by which the country is largely governed have been importantly changed four times.”
We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any state on the same subject, is void. This of course is the doctrine of “covering the field” attributed to the Australian Courts, and in accord with the cases:-
i. Ex Parte Mclean 43 C.L.R. 472 at page 483;
ii. The State of Victoria and Ors. v. Commonwealth of Australia and Ors. 58 C.L.R. 618 at page 630; and
iii. O’Sullivan v. Noarlunga Meat, Limited, etc. (1956) 3 All E.R. 177; (1957) 45 A.C. 1.
We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.
We now direct our attention to the series of events which took place between the judgment of the High Court and the hearing of the appeal in the Western State Court of Appeal. As we mentioned earlier on, during the pendency of the appeal in the Western State Court of Appeal, the Federal Military Government enacted three Decrees, namely: No.37 of 1968, No.43 of 1968 and No.45 of 1968, all of which we will now examine.
(i) Decree No.37 of 1968 was enacted on July 29, 1968 and applies throughout the Federation. It provides for the investigation of the assets of public officers and other persons whether related to them or not. Sections 14 and 12 are relevant.
Section 14(1) repeals certain enactments including:-
(a) Decree No.51 of 1966; and
(b) Edict No.5 of 1967 as from July 29, 1968.
These, as will be remembered, are the contentious Decree and Edict we dealt with earlier and upon which the judge of the High Court was called to adjudicate.
Section 14(2) of Decree No.37 of 1968 is as follows:-
(2) It is hereby declared that –
(a) the repeal of any enactment or law by this Decree shall not affect any order, notice or other document made or thing whatsoever done under the provisions of any enactment or law hereby repealed, and every such order, notice or other document or thing so far as it is subsisting or in force at the time of the repeal shall continue or have effect by virtue of this Decree;
(b) any tribunal of inquiry established under any enactment or law repealed by this Decree and in being immediately before the making of this Decree shall, on its promulgation by any means thereafter, continue as if constituted by or under and for the purpose of this Decree, and matters uncompleted before any such tribunal or pursuant to any enactment or law hereby repealed, prepared and intended for presentation thereto shall, where necessary be continued or completed, either by the same or any other tribunal accordingly by virtue of this Decree.”
And section 12 provides for the validity and exclusion of the court’s jurisdiction. It reads:-
“12. The validity of any direction, notice or order given or made, or of any other thing whatsoever done, as the case may be under this Decree, or under any enactment or other Law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”
The effect of section 14 is that although subsection (1) repeals Edict No.5 of 1967, under subsection (2), the Tribunal of Inquiry about which this complaint arose is to continue its function, and all orders already made by it are validated and to continue to operate. On the other hand, the effect of section 12 is that despite the provisions of the Fundamental Human Rights in Chapter III of the Constitution, validity of orders, notices and directions made shall not be inquired into by any Court of Law.
(ii) Decree No. 43 of 1968 is dated August 28, 1968 and made to operate as from July 29, 1968; it applies to the whole Federation. It is short and the two sections are as follows:-
“1. The Investigation of Assets (Public Officers and Other Persons) Decree 1968 is amended with effect from its commencement:
(a) in section 12 by omitting all words from “or under any enactment” up to and including the words “whatsoever done”;
(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 provision shall not affect any cause or matter pending before a court at the time of such repeal”.
2. This Decree may be cited as the Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree 1968 and shall have effect as hereinbefore provided and apply throughout the Federation.
As will be seen this Decree amended the last Decree, i.e., No.37 of 1968 as from the date it was made and the effect of the amendments was to withdraw the validity and preclusion from the courts which the last Decree had originally provided for. But it would appear that the object had not been achieved, for eight days later, and indeed on August 28, 1968 –
(iii) Decree No. 45 of 1968, the whole of which we had earlier set out in this judgment was passed on August 28, 1968. The provisions of this Decree have a far-reaching effect.
Section 1(1) validates all orders specified in the Schedule.
Section 1(2) refers specifically to Edict No.5 of 1967 (Western States) and validates the order by which the properties of the appellants are attached.
Section 1(3) provides a general cover validating all other orders, notices or documents made or given or anything done by virtue of any enactments within the contemplation of the Decree No. 45.
There can be no doubt of the importance of sections 1 and 2 of this Decree.
Section 2(2) is significant. This section purports to shut out completely any proceedings pending in court either at nisi prius or on APPEAL, in any court whatsoever, with respect to matters contemplated by the Decree. Such proceedings, it stated, shall abate as from the date of commencement of the Decree.
Applying this to the present case, the section purported to shut out the appeal filed on December 27, 1967 to the Western State Court of Appeal and, as we observed earlier, the section was relied upon before that court. After hearing arguments on the ousting of its jurisdiction, the Court of Appeal upheld the validity of the Decree and declared itself without jurisdiction to hear the appeal. Not only are the provisions of the Decree No. 45 of 1968 designed to oust the jurisdiction of the courts generally, but there was a schedule tied to sections 1(1) and 1(2) of the Decree. These are very important as we shall point out later. Part A of the Schedule sets out, inter alia, the names of particular officers whose forfeiture orders, however made, are validated. The name of the first appellant is shown as item No. 4(a). Part B of the Schedule contains the names of officers and other persons affected by the Decree and the names of the appellants appear as item No.5.
It is therefore clear what the Decree (No. 45 of 1968) sets out to do and that the object of the legislature was directed to the appellants and their pending appeal.
It is in this context that the question has arisen whether this Decree is valid or not. In effect, is the validity of Decree No.45 of 1968 pronounced by the Western State Court of Appeal correct? This is the substance of the appeal before us. Counsel on both sides agreed that to determine the validity of this Decree, it is necessary to determine the basis of the power of the Federal Military Government to make laws. To do this, we must of necessity examine the events in the country as from January, 1966 and how the Federal Military Government came into being.
In this argument before us, the Attorney-General for the Western State, on behalf of the respondents, said what took place in January, 1966 was a revolution and the Federal Military Government is a revolutionary government which seized power on January 15, 1966. It accordingly has an unfettered right from the start to rule by force and by means of Decrees and therefore nothing from the Republican Constitution of 1963 can be implied into the new mode of ruling the country; that section 3(1) of Decree No.1 of 1966 gave the Federal Military Government unlimited power of legislation on any subject either by Decree or by part of the Constitution which has not been abrogated; that the doctrine of necessity which was propounded by counsel for defence, and about which we say more later, does not apply. Further, that section 6 of Decree No. 1 of 1966 (see above) must be construed literally and should not be construed to doubt the validity of a decree as this court has interpreted an edict in the case of Adamolekun v. The Council of the University of Ibadan (1968) N.M.L.R. 253 and that that interpretation can only be limited to an Edict. In short, the submission is that there is nothing in the Constitution which can make a decree void. He further submitted that once a document purporting to be a Decree is signed by the Head of the Federal Military Government it cannot be challenged and no court has any jurisdiction to adjudicate on its validity. The order of August 31, 1967 by the chairman of the Assets Tribunal, he submitted, was validly made since Decree No. 45 of 1968 made on August 28, 1966 has validated everything done under it.
Chief Williams, counsel for the appellants, submitted that the Federal Military Government is not a revolutionary government but a constitutional interim government, which came into being by the wishes of the representatives of the people, and whose object is to uphold the Constitution, excepting so far as it had to derogate from it under the doctrine of necessity whereby it was granted power. That thus the Federal Military Government assumes the continued existence of the Constitution and in its Decree No. 1 of 1966 (supra) impliedly provided for a separation of powers between the legislature, the executive and the judiciary as did the Constitution of Nigeria; that this must be perpetuated unless necessity otherwise arose compelling it under section 3 of Decree No. 1 of 1966 to make laws by Decree “for the peace, order and good government of Nigeria on any matter whatsoever.” This power, it was submitted, must not be read as unfettered powers to legislate to amend the Constitution save in so far as properly justified by the doctrine of necessity. In regard to section 6 of Decree No.1 of 1966 and the Adamolekun’s case (supra), Chief Williams submitted that section 6 of Decree No. 1 has to be read down as this court put it in Adamolekun’s to only not being able to challenge the legislative authority of a decree; that is, not to challenge the right of the Federal Military Government to make a law by way of a decree signed by the Head of the Federal Military Government as proved by sections 4 and 5 of Decree No. 1 of 1966. Further that a decree prevails over the Constitution only to the extent that the decree, if “otherwise” properly made, could amend the “Constitution, Finally, that the order Exhibit B made on August 31 1967 by the Chairman of the Assets Tribunal was not validly made, since Decree NO.45 of 1968 which sought to validate it (and thus implied that it was otherwise invalid) was a legislative act which impinged upon the sphere of the judiciary and to that extent invalid as an executive interference into the sphere of the judiciary.
Now, to understand, the doctrine of necessity so propounded, we must go into history. Nigeria before January 1966, under its Republican Constitution of 1963 provided, inter alia, for:-
(i) A President of the Republic, section 34;
(ii) A bi-cameral Legislature Section 41:
(iii) An executive, known as Council of Ministers, sections 84, 87, etc., and
(iv)A Judiciary vested with full judicial powers, section 111 et seq.
All these functioned normally until January 15th, 1966, when a section of the army rebelled in different parts of the country. Two Regional Premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the army were killed. The events which bestirred the country were unprecedented and serious constitutional upheavel was created. The head of the army rallied his men round and the rebels were arrested. The Prime Minister’s whereabout was unknown; the Minister who was apparently next to him and had previously acted for him, was out of the country. The President of the Republic was also away from the country, but there was an acting President. It appeared however that the Council of Ministers met without the Prime Minister and decided to hand over the Administration of the country to the Armed Forces before the situation got worsened. The full text of the Acting President’s speech delivered on January 16, 1966, is contained in Government Notice No.147 dated January 16 1966 and it reads:-
“FULL TEXT OF HIS EXCELLENCY THE ACTING PRESIDENT’S SPEECH
“I have tonight been advised by the Council of Ministers that they had come to the unanimous decision voluntarily to hand over the Administration of the country to the armed forces of the republic with immediate effect. All ministers are assured of their personal safety by the new administration. I will now call upon the General Officer Commanding Major-General Aguiyi-Ironsi, to make a statement to the nation on the policy of the new administration. It is my fervent hope that the new administration will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full co-operation.”
This statement by the Acting President was broadcast to the nation. Following this, and also broadcast and published as Government Notice No.148 of the same date, (January 26, 1966), is the speech of Major-General Aguiyi-Ironsi. It reads, in part:-
FULL TEXT OF THE SPEECH OF MAJOR-GENERAL J.T.U. AGUIYI-IRONSI, THE GENERAL OFFICER COMMANDING THE NIGERIAN ARMY.
”The Government of the Federation of Nigeria having ceased to function, the Nigerian Armed Forces have been invited to form an interim Military Government for the purposes of maintaining law and order and of maintaining essential services.
2. This invitation has been accepted and I, General J.T.U. Aguiyi-Irorisi, the General Officer Commanding the Nigerian Army, have been formally invested with authority as Head of the Federal Military Government, and Supreme Commander of the Nigerian Armed Forces.
Suspension of certain parts of the Constitution.
The Federal Military Government hereby decrees:
(a) The suspension of the Provisions of the Constitution of the Federation relating to the Office of President, the Establishment of Parliament and of the Office of Prime Minister.;
(b) The suspension of the provisions of the Constitution of the Regions relating to the establishment of the Offices of Regional Governors, Regional Premiers and Executive Councils, and Regional Legislatures …..”
Thus the Federal Military Government Notice came into being and assumed power and responsibilities. It is to be noted from the Government Notice (No. 148) set out above that the invitation to the Armed Forces, which was duly accepted, was to form an interim Military Government and it was made clear that only certain sections of the Constitution would be suspended. It was evident that what the Government thus formed is an interim government which would uphold the Constitution of Nigeria and would only suspend certain sections as the necessity arises.
At this stage it is incumbent on us to clear one point. It must be accepted that the Council of Ministers validly met at the time. The Acting President accepted that they met and they gave him an assessment of the situation. In our view, the Council of Ministers could validly meet in the absence of the Prime Minister, since the evidence available at the time was that the Prime Minister was alive but circumstances made it impossible for him to be present. If he had been killed or he was dead at the time, the situation might have been different.
It is apt to point out, however, that the Attorney-General does not accept the doctrine of necessity, nor does he seek to argue whether or not necessity has been shown in this case. He bases his case on the fact that necessity, or rather the doctrine of necessity, does not arise for our consideration. We understand him to say that question of necessity only arises with Colonial Governments, as we stated earlier, what happened in Nigeria in January 1966, in the submission of the Attorney-General, was a revolution.
It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware has a civilian government invited an army take-over, or the armed forces to form an interim Government. We disagree with the Attorney-General that these events in January 1966 are tantamount to a revolution. As Chief Williams for the appellants puts it, quoting from the Shorter Oxford Dictionary, a revolution occurs when ”there is an overthrow of an established government by those who were previously subject to it” or ”where there is a forcible substitution of a new ruler or form of Government”. These, from the facts, did not take place in Nigeria in 1966 as the situation to which we have previously referred – a rebellion by some members of the Armed Forces – caused the Acting President, with the advice of the Council of Ministers in the absence of the Prime Minister, to hand over power to the Armed Forces. We venture to put the attitude of the Acting President and the Council of Ministers to the head of the Army thus – your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the Government to us. (back to top?)
Cases of revolution abound in history and in law, and an example is to be found in Pakistan where there is a proclamation annulling the Constitution of the country. In Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514; the Pakistan case of the State v. Dosso (1958), 2 P.S.C.R. 180, was referred to at page 538 in the following terms:
“That the President’s proclamation of October 7, 1958 by which the Constitution of 1956 was annulled and Martial Law was proclaimed constituted an ‘abrupt political change,’ not within the contemplation of the said Constitution, that is a revolution. A victorious revolution is an internationally recognized legal method of changing a constitution. Such a revolution constitutes a new law creating organ, by virtue of having become a basic law creating fact. Laws which derive from the ‘old order’ may remain valid under the ‘new order’ only because validity has expressly or tacitly been vested in them by the new constitution, ‘and it is only the contents of these norms that remain the same, not the reason of validity’. Further no jurist would maintain that even after a successful revolution, the old constitution and the laws based thereupon remain in force on the ground that they have not been nullified in a manner anticipated by the old order itself”.(back to top?)
The Attorney-General submits that both the legislative and executive were swept away by the uprising in January, 1966 and the judiciary was altered by prescribing a new code of appointing Judges; all these he said were nothing short of revolution; that the Republican Constitution of 1963 no more exists except and in so far as the revolutionary government decreed: that the authority of the Federal Military Government is not derived from the 1963 Constitution but from the revolution itself. He also relied on Hogde v. The Queen (1883) 9 A.C. 117. The Attorney-General argued further that there is no provision in the 1963 Constitution enabling the Acting President, in the absence of the Prime Minister, even with the advice of other Ministers of the Council of Ministers, to hand over the administration of the country to the Armed Forces of the Republic. What happened, he said, was that the Government “having ceased to function” agreed to abdicate its powers and that therefore there was a revolution.
We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity. Moreover, it must be remembered that it is not a case of seizing of power by the section of the Armed Forces which started a rebellion. The rebellion had been quelled; the insurgents did not seize power nor was it handed over to them. But the state of affairs in Pakistan to which The State v. Dosso (supra) refers is different. In Pakistan the President had issued a proclamation annulling the existing Constitution. There was a disruption of the Constitution and the national legal order by an abrupt political change not contemplated by the Constitution. Such a change is a revolution.
The submissions by the Attorney-General
eave no room for the doctrine of necessity. He argued that as there was a revolution in the country in 1966, it is not permissible to read into the actions of the Federal Military Government any fetter arising out of the Republican Constitution of 1963 and the Government could legislate as it thought fit and could suspend and modify portions of that Constitution as it thought fit; that section 3(1) of Decree No.1 of 1966 should be given its plain meaning and nothing should be read into it: that also the proviso to section 1 of the Constitution should be given its literal meaning and that it puts no limitation on the power of a decree and in effect a decree automatically prevails over the Constitution whether or not it is specifically or impliedly inconsistent with it. He referred us in support, to the case of Smith v. East Elloe Rural District Council (1956) A.C. 736 where at page 751 Viscount Simonds said:
“My Lords, I do not refer in detail to these authorities only because it appears to me that they do not override the first of all principles of construction, that plain words must be given their plain meaning. There is nothing ambiguous about paragraph 16: there is no alternative construction that can be given to it; there is in fact no justification for the introduction of limiting words such as “if made in good faith”, and there is the less reason for doing so when those words would have the effect of depriving the express words “in any legal proceedings whatsoever” of their full meaning and content.”
The cases Edinburgh Railway Corporation v. Wauchope (1842) 8 E.R. 279 and Lee and Another v. The Bude and Torrington Junction Railway Corporation (1871) 6 L.R.C.P. 576 were referred to in support of the principle that, if two statutes are inconsistent, the latter of the two statutes prevails; and as such if Decree 45 of 1968 is inconsistent with Decree No. 1 of 1966, the Decree of 1968 must prevail.
We do not doubt the validity of these cases but the real answer is, to our mind, to be found in the dicta of Lord Reid in the case Anisminic Limited v. The Foreign Compensation Commission and Another (1969) 2 W.L.R. 163 at page 168 where he said:
‘The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that “determination” means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity, you are not questioning the purported determination – you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.”
As we stated earlier in this judgment, the Attorney-General does not accept the presumption of necessity. We have earlier on pointed out that in our view the Federal Government is not a revolutionary government. It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm. From the facts of the taking over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen, and its main object is to protect lives and property and to maintain law and order. As Willes, J. put it in Phillips v. Eyre (1871) 6 L.R.Q.B 1 at page 16:
“This perilous duty, shared by the Governor with all the Queen’s subjects, whether civil or military, is in an especial degree incumbent upon him as being entrusted with the powers of government for preserving the lives and property of the people and the authority of the Crown; and if such duty exists as to tumultous assemblies of a dangerous character, the duty and responsibility in case of open rebellion are heightened by the consideration that the existence of law itself is threatened by force of arms and a state of war against the Crown established for the time. To act under such circumstances within the precise limits of the law of ordinary peace is a difficult and maybe an impossible task and to hesitate or temporize may entail disastrous consequences.”
In the case of Madzimbamuto v. Lardner-Burke (1969) 1 A.C. 645 at page 740 Lord Pearce, on the doctrine of necessity said:
“The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus, regardless of whose fault it is that the crisis had been created or persists.”
Reference may also be made to the Cyprus case of Attorney-General for the Republic v. Mustafa Ibrahim of Kyrenia (1964) 3. Supreme Court of Cyprus 1. In that case owing to the immutable nature of the constitution of Cyprus and the political secession of the Turkish members of the judiciary and the legislature, the courts and the parliament were unable to function. The Greek members of Parliament took upon themselves to pass a “law” providing for a new Supreme Court with no racial quorum, such as had been provided by the Constitution. The new court, staffed by Greek Judges only, was set in motion and started to function. It was contended that the “law” being unconstitutional was a nullity; but all the three Judges held that the “law” should be read into the Constitution, by applying the doctrine of necessity, and that the new court was only constituted. We quote a portion of the judgment of Josephides, J. where he said as follows:
“Faced with the non-functioning of the two superior courts of the land and the partial breakdown of the district courts, the Government had to choose between two alternatives, viz, either to comply with the strict letter of the constitution (the relevant articles being unalterable under any condition), that is, cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State (vide Prof. Alessi, ubi supra, at pages 218-9; or to deviate from the letter of the Constitution, which had been rendered inoperative by the force of events (which situation could not be foreseen by the framers of the constitution), in order to do what was imperatively and inevitable necessary to save the judicial power temporarily until return to normal conditions so that the whole State structure may not crumble down. I have no hesitation in arriving at the conclusion that in these exceptional circumstances it was the duty of the government through its legislative organ, to take all measures which were absolutely necessary and indispensable for the normal and unobstructed administration of justice. I agree with the submission of respondent’s counsel that the measures taken should be for the duration of the necessity and no more. This is also conceded by the Attorney-General of the Republic. The question now arises: Did the legislature, do what was absolutely necessary in the circumstances or did it exceed it?”
By recognizing the fact that there is a doctrine of necessity we do not alter the law, but apply it to facts as they do exist. We are unable to find that the facts of cases cited to us by the Attorney-General do fit in with the events which took place in this country in January, 1966: but they are basically cases of revolution. In this connection and before us we conclude this particular aspect of the matter; we would like to refer to the case of Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514, where there were no pretentions on the part of the Prime Minister who abolished the Constitution of the country in the National Assembly and submitted a new one, which installed him as Executive President with power to appoint a Vice-President contrary to the Constitution of the country – actions which could only appropriately be described in law as a revolution.
Now we come to consider the effect of Decree No.45 of 1968 which Chief Williams, for the appellants has attacked as a usurpation of judicial power. The questions we ask ourselves are, was the passing of this decree a performance of legislative function as envisaged by section 3(1) of Decree No.1 of 1966? and does it go beyond the requirements or demands of the necessity of the case? Chief Williams for the appellants has argued that the effect of Decree No.45 of 1968 was a usurpation of judicial power as it deprived the appellants of their properties without compensation by legislative act. He referred us to section 31 of the Republican Constitution 1963 and to section 31(3)(b) which reads:
“Nothing in this section shall be construed as affecting any general law ….. (b) for the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence.”
The subsection, he said, only contemplated deprivation of property as punishment if the deprivation was to be without compensation; the section was dealing with general law and not ad hominem laws.
We must here revert again to the separation of powers, which the Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State. See Attorney-General for Australia v. The Queen (1957) A.C. 288 at page 311, etc. In Lovell v. United States (1946) 66 Supreme Court Reports 1073 at page 1079, Mr. Justice Black said as follows:
“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”
These principles are so fundamental and must be recognised. It is to define the powers of the legislature that Constitutions are written and the purpose is that such powers that are left with the legislature be limited; and that the remainder be vested in the courts.
We have earlier pointed out the crushing effect of Decree No.45 of 1968 on the individuals it named, including the appellants. Part A of the Schedule to the Decree names particular individuals and mentions specific orders made concerning these individuals including the first appellant whilst Part B of the Schedule mentions names of particular individuals whose properties are affected as well as the dates of the Orders made against them on their properties, including the names of both appellants. The particular order, Exhibit B, which they are contesting, was specifically mentioned. Earlier, Decree No.37 of 1968 sought to repeal Edict No.5 of 1967, but section 14(2)(a) left unaffected the order made directly against the appellants. At the time it was passed, the appeals of the appellants were pending in courts. Section 12 stifled any further rights of the appellants to continue their appeal, thus depriving them of their constitutional rights. Later, Decree No.43 of 5 1968 purported to restore their rights but it was quickly followed by No.45 of 1968 which, by section 2(2) stipulates that all pending matters before any court in respect of all matters, including the appeals of the appellants, are abated as from the date the Decree was passed, and validated all the orders which affected the second appellant who had not been included in the earlier Decree No.37 of 1968 not being a public officer. It also validated all orders and decrees which had been wrongly made, all undoubtedly pointing to the appellants. These enactments are directed against certain named individuals with the aim of punishing them or depriving them of their properties. These individuals were not being dealt with as general members of the public for whom laws are passed generally. It is therefore necessary to consider more closely the nature of the legislation. It was this type of legislation that was being dealt with in Uyanage and Others v. The Queen (1967) 1 A.C. 259 at page 289-290; (1966) All E.R. 650 at 659 when Lord Pearce said in his judgment as follows:-
“In so far as any Act passed without recourse to section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particularly known individuals who had been named. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the Judges, the law should revert to its normal state. The first Act was wholly bad in that it was a special direction to the Judiciary as to the trial of particular prisoners who were identifiable and charged with particular offences on a particular occasion …As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity.”
Such act of usurpation was considered an infringement of the Constitution, as Lord Pearce at page 291 of the Report continued:
“One might fairly apply to these Acts the words of Chase, J., in the Supreme Court of the United States in Calder v. Bull (1789) 3 Dallas U.S.S.C. 386;
These acts were legislative judgments; and an exercise of judicial power.”
He further continued:-
“Blackstone in his Commentaries Vol. 1 (4th Edn.) p. 44 said:-
‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’
If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the Judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had the power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringed the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’
Among other cases which we have also considered for what is a judicial power may be mentioned Shell Company of Australia Limited v. Federal Commissioner of Taxation (1931) A.C. 275, and in respect of usurpation of judicial powers, we would refer to Buckley v. Attorney-General of Eire (1950) Irish Reports 67 where O’Byrne, J. said at page 84:
“There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Article 6. The effect of that article and of Articles 34 to 37, inclusive, is to vest in the courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas to dismiss the plaintiff’s claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain.”
We are not unmindful of the fact, that not all enactments of this nature are judicial legislation. The Attorney-General cited some cases showing instances of legislation which though they have their faults were held not to intrude on the sphere of the judiciary: every case must depend upon the facts surrounding it. Cases to which we were referred like (1) Roche v. Kronheimer (1921) 29 Q.L.R. 329; (2) Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth (1943) 67 C.L.R. 116; (3) Australian Communist Party. v. The Commonwealth (1950) 83 C.L.R. 1. In these Australian cases the enactments were found by the courts to have been justified on the facts and in the circumstances postulated by them. And in Kariapper v. Wijesinha and Another (1968) A.C. 717 it was held that a Ceylon Act was intra vires. As this is a case more favourable for the submissions made to us by the Attorney-General, we will consider it more fully. It is the case where an Act passed by the Ceylon Parliament imposed disabilities upon any person “to whom the Act applies” and “a person to whom the Act applies” was defined to mean “each person specified in the schedule to this Act in regard to whom the relevant commission in its report found that any allegation or allegations of bribery had been proved.” The disabilities imposed by the Act extended to disqualification for seven years from registration as an elector and from voting at elections; disqualifications for seven years from being a candidate for election to the House of Representatives or to any local authority; disqualification for seven years from being elected or appointed as Senator or member of House of Representatives or a member of any local authority or sitting and voting as such: and disqualification for all time from being employed as a public servant. The appellant in the case and others were Senators and were concerned in the matter to which the Act referred. As we stated earlier, the Act was held not to be an exercise of judicial power. We have considered this case closely and comparing it with the present case on appeal we have come to the conclusion that the facts were clearly different. The reasoning in the case was that the Act was not a judicial usurpation for reasons stated in the judgment. Decree No.45 of 1968 was not in form of an alteration of any existing law but it was clearly a legislative sentence and the Decree was spent on the persons named in the Schedule.
We must once again point out that those who took over the Government of this country in 1966 never for a moment intended to rule but by the constitution. They did, in fact, recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of the Decree No.1 of 1966 does not envisage performance of legislative functions as a weapon for exercise of judicial powers, nor was it intended that the Federal Military Government should, in its power to enact Decrees, exceed the requirements or demands of the necessity of the case. In the present case we are satisfied that Decree No.45 of 1968 did go beyond the necessity of the occasion.
The Attorney-General has argued that validation laws are normal legislative functions and are not usurpation of judicial power, even though they affected judgments given by the courts. Also, that it was common practice to enact laws, and they are valid, which oust the jurisdiction of the courts. He cited the Indian Divorces (Validity) Act 1921, Validation of Wartime Leases Act 1944, and submitted that, Acts of Indemnity have been passed to legalise acts which are of doubtful character performed during emergencies and the like – Phillips v. Eyre (supra) and Eshugbayi (Indemnity for Deportation) Ordinance passed in Nigeria 1931, He also referred to a law passed in Western Nigeria – The Constitution of Western Nigeria (Amendment) Law, 1963 reversing the Privy Council’s decision in Adegbenro v. Akintola (1963) A.C. 614. We have examined all these enactments and it is of the utmost importance to note that each of these enactments could not be said to have gone beyond the exigencies of the necessity of the occasion which brought them about. In the present case, we observe that no argument was put forward as to whether or not the Decree (No. 45 of 1968) goes beyond the actual demand or exigencies of the necessity of the occasion. Clearly, necessity for the Decree was not shown or established throughout the proceedings. Further, as stated by counsel for the appellant, the amendment of section 33(10) of the Constitution of Western Nigeria (Amendment) Law 1963 following the Privy Council decision in Adegbenro v. Akintola (supra) was never tested in court. Neither the legislative competence of the legislature nor the legislative validity of the law has been put to the test.
At the passing of Decree No.37 of 1968, the present case was pending in the Western State Court of Appeal. Although the Decree repealed Edict No.5 of 1967 and purported to withdraw the Constitutional rights to challenge by way of action and prerogative writs in any court of law provided for in Chapter III of the Constitution dealing with Fundamental Human Rights. The Decree refrained from touching the order made against the appellants. It would appear that more thoughts were given to this enactment and Decree No.43 of 1968 followed. But Decree No.45 of 1968 is the pith and meat of the matter. It validated everything that was wrong or wrongly done, referred specifically to the names of the appellants in its Schedule, without defining a new ‘public officers’. Validated orders made against the second appellant, who according to section 13(1) of Decree No.37 of 1968, could not by any stretch of imagination be considered a public officer. In an attempt to crown the efficacy of the Decree, it purported to shelve all actions and appeals pending before any court. In short, it stops the pending appeal of the appellant in the Western State Court of Appeal. We have come to the conclusion that this Decree is nothing short of legislative judgment, an exercise of judicial power,. It is in our view ultra vires and invalid.
We are in no doubt that the object of the Federal Military Government, when it engaged in this exercise, is to clean up a section of the society which had engaged itself in corrupt practices – those vampires in the society whose occupation was to enrich themselves at the expense of the country. But if, in this pursuit, the Government, however well-meaning, fell into the error of passing legislation which specifically in effect, passed judgment and inflicted punishment or in other words eroded to the jurisdiction of the courts, in a manner that the dignity and freedom of the individual, once assured, are taken away, the courts, must intervene. Every case, we reiterate, must be considered on its own facts and the materials placed before us in this matter lead to no other conclusion than that the provisions of the Decree No.45 of 1968 are such as are not reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfil.
This appeal will therefore be allowed and both the Edict No.5 of 1967 and the Decree No.45 of 1968 are declared ultra vires; they are null and void.
Now, we recorded during the argument before us, that counsel on either side, if this case were to be sent back to the Western State Court of Appeal to hear the arguments on the issue before the High Court, would have nothing more to add to their arguments and submissions before us. No useful purpose will be served therefore in sending the case back. We have already pointed out that we cannot support the judgment of the Judge of the High Court and also that the preliminary objection to the jurisdiction of the Western State Court of Appeal was wrongly upheld.
It follows that the order dated August 31, 1967, made by the Assets Tribunal and which was admitted in evidence as Exhibit B in the certiorari proceedings must be quashed, and is hereby quashed.
The orders for costs made both in the High Court and in the Western State Court of Appeal are hereby set aside. The appellants are entitled to costs in the two courts, which we now assess at seventy-five guineas in the High Courts and fifty guineas in the Court of Appeal respectively. Costs in this court in favour of the appellants are assessed at 100 guineas.
Order quashed. Edict No. 5 of 1967 and Decree No. 45 of 1968 declared ultra vires and void.
Chief F.R.A. Williams (K.A. Doherty (Miss) with him) For the Appelants
Dr. F.A. Ajayi, Attorney-General Western State;
Y.O. Adio, Principal State Counsel
and S.A. Onadele, State Counsel For the Respondents