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In The Supreme Court of Nigeria

On Friday, the 16th day of June, 1989

SC 257/1988

 

Before Their Lordships

 

 

 

Mohammed Bello

......

Chief Justice of Nigeria

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

Justice, Supreme Court  

  

Between

 

The Attorney-General of Lagos State

.......

Appellant

 And

The Hon. Justice L J. Dosumu

.......

Respondent

 

 

Judgement of the Court

Delivered by

Chukwudifu Akunne Oputa. J.S.C.

 

This is an appeal from a reserved judgment of the Court of Appeal delivered on the 1st day of September, 1988. Akpata, J.C.A., wrote the lead judgment, while Babalakin and Awogu, JJ.C.A., concurred. Akpata, J.C.A., in the opening paragraph of his judgment at p.335 of the record of proceedings, said inter alia:

 

This appeal covers a large range of important legal issues. There is the question whether an Order contained in a legal notice pursuant to a Section of an Edict can over-ride another Section which has not been repealed. Also prominent is the issue of the now ubiquitous ouster Clauses" in Decrees which purport to prevent courts from entertaining the question of the validity of any Decree or Edict. . . .(italics mine for emphasis of the crucial issue).

 

In his contribution in his concurring judgment, Awogu, J.C.A., at p.371 of the record observed inter alia:

 

.....The appellant attacked the claim of the Respondent on two major grounds. The first is that it contravened the provisions of S. 6(6) (d) 1979 Constitution which ousted the jurisdiction of the court in respect of an existing law made before October 1979. There is of course, no doubt that Edict No.10 of 1976 was an existing law as Akpata, J.C.A., has shown but Sections 4 and 6 thereof were constitutional in so far as they infringed the provisions of Section 31 of the 1963 Constitution. To that effect, Section 274 of the 1979 Constitution provided for the offending provisions to be declared invalid by the court, and provisions of S.6(6)(d) notwithstanding (italics mine).

 

The judgment of the Court of Appeal now appealed against was in no doubt that the issue of the Court's jurisdiction was a radical and crucial issue in this case.

 

The facts of this case are short and are in the main not in dispute. The Government of the Federation of Nigeria in 1963 leased plot 134 Victoria Island to the plaintiff/Respondent. This lease was registered as LO.5257. Eleven years later, in 1974, the Lagos State Government leased another plot No.272 in the self same Victoria Island to the plaintiff/Respondent. This

second plot was registered as LO.7307. In addition to these two plots in Victoria Island the plaintiff/Respondent was the lessee of plot No.571 in South-West Ikoyi. This other plot was registered as LO.4295. In July 1975, there was a change of Government and the Military Government which came to power at that time was (to quote from the Introduction to the appellant's Brief) "a revolutionary one" which "embarked on:-

 

(i)     a mass retirement of public servants in a most unprecedented manner;

 

(ii)     compulsory take-over of privately owned schools;

 

(iii)     probes by Special Assets Investigation Panels of the assets of public officers in various States;

 

(iv)     a review of the system of land holding.

 

In Lagos State, the Military Administration "evolved a new policy that no person should own more than one plot of State land at Victoria Island and not more than two plots of such land in South-West Ikoyi irrespective of whether or not such plots were acquired by direct allocation or by transfer or by assignment."

 

Pursuant to the above land policy, the Military Government of Lagos State on the 11th day of August 1975 set up a Committee of three men made up of Mr. T. O. Folami, Mr. D.O. Ijeru and Mr. Ashorobi who were to compile a comprehensive list of names of persons who owned more than one plot in Victoria Island and more than 2 plots in South-West Ikoyi. On receiving the Committee's Report, the Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict No.3 of 1976 and Determination of Interests in State Lands Order L.S.L.N. No.9 of 1976. The Plaintiff/Respondent was affected as he owned more than one plot in Victoria Island. His (Plaintiff/Respondent's) interest in this second plot No. 272 registered as LO.7307 was determined by the 1976 Order L.S.L.N. No.9 of 1976.

 

Upon the above facts, the Respondent as plaintiff in the trial court sued 3 Defendants namely:-

 

1.     The Attorney-General of Lagos State.

 

2.     Lagos State Development and Property Corporation; and

 

3.     Ibile Properties Limited.

 

Pleadings were ordered by the court of first instance. The plaintiff pleaded the 1976 Edict and the 1976 Order and added:-

 

4...... The plaintiff Will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Sections 22(1) and 31(1) of the Constitution of the Federation, 1963.

 

In paragraph 8 of the Statement of Claim, the Plaintiff pleaded the 1976 Order and added in paragraph 9.

 

9.     The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal, null and void because the law under which it was made was unconstitutional.

 

There is no doubt therefore that the Plaintiff's case was a direct challenge to the constitutionality of the 1976 Edict and the legality of the 1976 Order.

 

The question now is - Can the plaintiff challenge the validity of the cancellation of his interest in the residue of the lease under Title No. LO.7307 thus indirectly challenging the 1976 Edict and the 1976 Order? The 1st Defendant's answer is contained in paragraphs 5, 6, 7, 11 and 12 of the Statement of the Defence. As the pleadings were later on amended, it will be sufficient at this stage merely to say that the 1st Defendant relied on the following:-

 

1.    The State Creation and Transitional Provisions Act No.17 of 1977

 

2.     Tribunals or Inquiries (Validation) Act No.18 of 1977

 

3.    The Constitution (Basic Provisions) Act of 1975, No.32

 

4.     Section 6(6)(d) of the 1979 Constitution to show that:-

 

(a)     No question as to the validity of the Determination of Certain Interests in Lands Law 1976 can be entertained by any Court of Law in Nigeria.

 

(b)     The 1976 Law and Order are not inconsistent with the 1963 Constitution.

 

(c)     Section 6(6)(d) of the 1979 Constitution "precluded the courts from entertaining the subject matter of this suit being an action or proceedings relating to an existing law made after 15th January 1966 for determining the competence of the then Military Governor of Lagos State to promulgate or make the Determination of Certain Interests in Lands Law 1976.

 

From the above, it was quite clear that the jurisdiction of the trial court to entertain the plaintiff's claim was challenged. It directly became an issue from the word go.

 

When a court's jurisdiction is thus challenged in a Statement of Defence, I think it is neater and far better to settle the issue one way or another before proceeding to the hearing of the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been. The reason is that a defect in cornpetence is not intrinsic to, but rather, it is extrinsic to the adjudication; see Madukolu & Ors. V. Nkemdilim (1962)1 All N.L.R. 587 at p.595. The 1st Defendant did file at p.26 a Motion on Notice for an order to set down, the point of law raised in paragraph 13 of its Statement of Defence (that is all the Acts pleaded that ousted the jurisdiction of the court), "for hearing and disposed off forthwith before the trial of the issue of facts in this action." That Motion was dated 20th day of March, 1986. The ruling was delivered on the 29th April, 198~see pp.62 to 95 of the record. At p. 93, the learned trial Judge ruled, inter alia, "that evidence shall be led on the matters pleaded by the parties before trial of any question of law which arises on the pleadings as to whether or not this court has jurisdiction to adjudicate and determine the plaintiff's action".

 

An attack on jurisdiction is no doubt a question of law. It is a question of law, but it is much more than that. It is a question of competence. It is the power and authority of a court to proceed to hear and determine the particular case before it. Jurisdiction exists:-

 

(a)     when the court has cognizance of the class of cases involved;

 

(b)    proper parties are present; and

 

(c)    the point to be decided is within the powers of the court.

 

In Madukolu V. Nkemdilim supra, the concept though the same, different classification was adopted viz:-

 

1.     It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

 

2.     The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

 

3.     The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

 

All the six points mentioned above are necessary to found jurisdiction. I will however dwell on (c) and (2) above.

 

It is essential for jurisdiction that the point to be decided is within the power of the court. The emphasis is on the expression "power" for jurisdiction is sometimes defined as the power of the court to entertain the pending action.

Courts are creatures of Statute. All our superior courts of record are created and invested with defined jurisdiction by our Constitution. Other laws may extend such jurisdiction. Similarly the Constitution or other laws may, in certain cases or class of cases, also abridge, constrict or even oust such jurisdiction of a court which formerly existed. Ouster of jurisdiction is thus a condition which exists when a court which once had jurisdiction over a matter ceases to retain that jurisdiction. There is no doubt that the subject matters of the plaintiff's claim in this case (i.e. Declaration, Injunction, Account) should normally be within the jurisdiction of the State High Court. The radical issue in this case will be whether or not that jurisdiction has been ousted by the different Acts and Laws pleaded by the Defendant/appellant?

 

On the 9th day of May, 1986, Chief Williams, S.A.N., withdrew the action against the 2nd and 3rd Defendants and added - "I will proceed against the 1st Defendant alone in this action." There-upon the court made the following Order -

 

Court:     I hereby make an Order striking out the 2nd and 3rd Defendants as parties in this action.

 

The court further ordered that -

 

(a)   an Amended Writ of Summons and an Amended Statement of Claim shall be filed and served by the Plaintiff within 4 days from today ...

 

(b)   an Amended Statement of Defence shall be filed and served by the 1st Defendant within 7 days thereafter.  An Amended Statement of Defence shall be filed and served by the 1st Defendant within 7 days thereafter.

 

Normally, I would not in a judgment set down the pleadings en bloc. But in this case, where the main plank of the Defendant's attack is based on certain Laws and Acts pleaded in answer to the plaintiff's averments in his Statement of Claim, it might be helpful to set out each party's case as pleaded. The plaintiff's Amended Writ of Summons at p.98 of the record of proceedings reads as follows:-

 

Writ of Summons

Amended Indorsements

Amended This 12th Day of May, 1986

Pursuant to Order of Court dated 9th of May, 1986

 

The Plaintiff claims against the Defendants jointly and severally:-

 

(1)     a declaration that notwithstanding the provisions of the Determination of Interests in State Lands Order 1976, he is the registered owner of each of the properties comprised in Title No. LO.7307 registered pursuant to the Registration of Titles Law;

 

(2)     an account of all rents received by the Government of Lagos State and or any of its agencies from the land building comprised in the aforesaid titles and payment over to the plaintiff of the sum due after taking such account;

 

(3)     mesne profits;

 

(4)     an injunction restraining the Government of Lagos State and any of its agencies as well as all officers, agents or servants of the said Government of Lagos State from trespassing or continuing to commit acts of trespass on the said properties of either of the said properties; and

 

(5)     an order for the rectification of the Register of Titles by restoring the plaintiff as the registered owner of the land comprised in Title No. LO.7307 dated this 17th day of September, 1981.

 

Although Chief Williams withdrew against the 2nd and 3rd Defendants and the Attorney-General of Lagos State was the sole and only Defendant, the plaintiff in this Amended Indorsement above still claimed "against the Defendants jointly and severally".

 

On the 12th day of May, 1986, the plaintiff filed an Amended Statement of Claim as ordered by the trial court. I will hereunder set out the plaintiff's Amended Statement of Claim:-'

 

 

Amended Statement of Claim

Amended This 12th Day of May, 1986

Pursuant to Order of Court dated 9th of May, 1986

 

1.     The plaintiff was, at all times material to this action, the registered owner of the plot of land comprised in Title No. LO.7307 and his title was duly registered pursuant to the Registration of Titles Law. The said plot is hereinafter referred to as "disputed plot".

 

2.     Sometime in 1975, the Lagos State Government published in the National newspapers and subsequently in the Lagos State Gazette a statement to the effect that the disputed plots have been forfeited to the Government of Lagos State. The said statement was dated 12th September 1975 and was issued by the Military Governor.

 

3.     By an Edict said to have been made on 24th day of March, 1976 the then Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict 1976 and published to make its operation retrospective. The said Edict is hereafter referred to as "the 1976 Edict".

 

4.     Section 1 of the 1976 Edict provides that if the Military Governor is satisfied that there has been any impropriety in the acquisition of any interest in any State Land by any person or that it is otherwise in the public interest so to do, he may, at any time up to 30.6.76 determine the interest in State Land of any such person by order published in the Gazette. The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Sections 22(1) and 31(1) of the Constitution of the Federation, 1963.

 

5.     Prior to the publication pleaded in paragraph 2 of this Statement of Claim the Military Governor of Lagos State did not institute any tribunal of inquiry to ascertain how the plaintiff acquired his property.

 

6.     If, which is denied, any inquiry was held, the plaintiff will contend that it was a sham of an inquiry and not a genuine one.

 

7.     If, contrary to the contention of the plaintiff, the court should find that there was an inquiry, then the plaintiff states that such inquiry was illegal, unconstitutional and amounts to a nullity because the plaintiff was not given the opportunity of being heard contrary to the Rules of Natural Justice and to the provisions of Section 22(1) of the Constitution of the Federation, 1963.

 

8.     By an Order said to have been made on the 11th day of May 1976 in exercise of the power conferred on him by Section 1 of the 1976 Edict, the Military Governor of Lagos State, inter alia, purported to determine the interest of the plaintiff in the disputed plot. The said Order (hereafter referred to as "the 1976 Order") is published as L.S.L.N. No.9 of 1976 and cited as the Determination of Certain Interests in Lands Edict 1976 (No.3 of 1976).

 

9.     The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal and null and void because the law under which it was made was unconstitutional and void.

 

10.     If the court should hold that the 1976 Edict and the 1976 Order are valid and constitutional, the plaintiff states that there was absolutely no evidence available to the Military Governor capable of satisfying a reasonable tribunal, properly directed, that there had been any impropriety in the acquisition by the plaintiff of his rights title and interest in the disputed plots.

 

11.     The Government of Lagos State has, by itself and/or its agencies been receiving the rents and profits accruing from the said property or making use of the same for its (i.e. the Government's own) benefit.

 

WHEREUPON the plaintiff claims as per the indorsements on the Writ of Summons.

 

DATED THIS 12TH DAY OF MAY 1986.

 

On the 26th day of May, 1986, the Defendant, as ordered by the trial court, filed its Further Amended Statement of Defence as set out hereunder:-

 

FURTHER AMENDED STATEMENT OF DEFENCE

 

Amended this 26th day of May, 1986 pursuant to the Order of Court dated the 26th day of May, 1986.

 

1.     Save and except as is herein expressly admitted the Defendant denies each and every allegation of fact in the plaintiff's Statement of Claim as if each were set out seriatim and specifically traversed.

 

2.     The Defendant denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Claim and put the plaintiff to the strict proof thereof.

 

3.     The Defendant denies paragraph 1 of the Statement of Claim and put the plaintiff to the strict proof thereof.

 

4.     The Defendant denies paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Claim and aver, in answer thereto that the Military Administration which came into power in July 1975 decided, in the public interest to adopt a policy that a man should not own more than one plot of State Land at Victoria Island and not more than two plots in South West Ikoyi.

 

5.     This policy of Government was made public by way of a Press release. The Defendant will rely on the Press release at the hearing of this action.

 

6.     Pursuant to the said policy, the then Military Governor of Lagos State on the 11th day of August 1975 instituted a tribunal of inquiry by way of a Committee to inquire into the issue of Land holdings of State Land on Victoria Island and South-West Ikoyi and prepare and submit to him an analytical list of the names of persons holding land in Victoria Island and or South-West Ikoyi.

 

7.     The Committee went into the most up-to-date register of State Land holdings in Victoria Island and South West Ikoyi and compiled an analytical list in accordance with the terms of reference given by the Military Governor.

 

8.     The Committee submitted a report to the Military Governor of Lagos State made of the following:-

 

(a)    A comprehensive list of all allottees of State Land at Victoria Island Lagos.    A comprehensive list of all allottees of State Land at Victoria Island Lagos.

 

(b)    A comprehensive list of all allottees of State Land at South-West Ikoyi Lands.

 

(c)    1.    List of persons who acquired more than one plot of State Land at Victoria Island and/or South-West Ikoyi either by assignment or by direct allocation.   1.    List of persons who acquired more than one plot of State Land at Victoria Island and/or South-West Ikoyi either by assignment or by direct allocation.

 

2.     List of persons who have assigned their plots of State Land at Victoria Island or South West Ikoyi but have also acquired additional plots by assignment or by direct allocation.

 

(d)    1.    A list of lessees of State Land at South-West Ikoyi Lagos who have acquired their interests by assignment.   1.     A list of lessees of State Land at South-West Ikoyi Lagos who have acquired their interests by assignment.

 

2.     A list of lessees of State land at South-West Ikoyi Lagos who held more than a plot of State Land.

 

(e)    A comprehensive list of persons who have acquired plots of State Land at Victoria Island and South-West Ikoyi by assignment.   A comprehensive list of persons who have acquired plots of State Land at Victoria Island and South-West Ikoyi by assignment.

 

(f)     A comprehensive list showing the number of plots of State Land acquired by sundry persons at Victoria Island and South-West Ikoyi, Lagos.

 

(g)     A list of plots of State Land acquired by Mr. Justice L.J. Dosunmu at Victoria Island and South-West Ikoyi, Lagos.

 

9.     The report showed that the plaintiff held more than one plot of State Land on Victoria Island and/one plot of land in South West Ikoyi.

 

10.   The lists made by the Committee were published in various Newspapers in the month of September 1975. The Defendant will rely on the report of the Committee, the various lists made by the Committee, the Newspaper Publications of the said lists at the trial of this action.

 

11.   In implementation of the report of the Committee, the Military Governor of Lagos State on the 24th day of March1976, promulgated or made the Determination of Certain Interests in Lands Edict No.3 of 1976 determining the interest of the plaintiff in the State Land comprised in title No. LO.7307.

 

12.    In implementation of the report of the Committee and consequent upon the promulgation of the Determination of Certain Interests in Lands Edict No.3 of 1976, the Registrar of Titles, effected the necessary changes in the proprietorship Register at the Lands Registry in Lagos.

 

13.   The Defendant will contend at the trial of this case that:

 

(i)     The Determination of Certain Interests in Lands Edict No.3 of 1976 and the instruments titled "Determination of Interests in State Lands Order 1976" made thereunder by the Military Governor of Lagos State are Edict and subsidiary legislation respectively within the meaning of Section 2 of the States (Creation and Transitional Provisions) Act, No.17 of 1977.

 

(ii)   That the Committee appointed by the Military Governor of Lagos State referred to in paragraph 4 hereof is a tribunal of inquiry within the provisions of the Tribunals of Inquiry (Validation etc.) Act, 1977.

 

(iii)   That under and by virtue of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Act No. 28 of 1970, this action as instituted by the plaintiff was not maintainable against the Defendants before the 30th day of September, 1979 when Sections 22 and 31 of the Constitution of the Federation 1963 were in operation.

 

(iv)   That since the 1st day of October 1979, the provisions of the Constitution of the Federal Republic of Nigeria 1963 are no longer applicable in Nigeria under Section 1 of the Constitution of the Federal Republic of Nigeria 1979.

 

(v)    That this action as instituted by the plaintiff being an action or proceedings relating to or for determination of an issue or question as to the competence of the Military Governor of Lagos State to make or promulgate the Determination of Certain Interests in Land Edict, 1975 and the Order made thereunder is not maintainable in any court under section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.

 

(vi)  That the Military Governor who determined the Plaintiffs interest in the State Land No.272 comprised in Title No. LO.7307 was a public officer and as such the plaintiffs action is statute-barred.

 

(vii)  That the Determination of Certain Interests in Lands Edict No. 3 of 1976 was validly made.

 

(viii) That the determination of the plaintiff's interest in the property comprised in Title No. LO,7307 was validly done.

 

(ix)   That this action cannot be based on the contravention of any part of Chapter III of the Constitution of the Federal Republic of Nigeria 1963.

 

(x)    That the Plaintiffs action is misconceived, frivolous and a gross abuse of the process of this court.

 

Whereof the Defendant say that the claim as per the writ of summons would not avail the Plaintiff and should be dismissed with substantial costs.

 

Dated at Ikeja this 28th day of May 1986.

Sgd. O. T. OKUWOBI (MRS.)

Principal State Counsel

Solicitor to the Defendant.

Ministry of Justice.The Secretariat,

Alausa. Ikeja.

 

I have taken the unusual step of reproducing in this judgment the pleadings of the parties because the facts therein pleaded (which are in the main not in dispute) will frame the issues for consideration and decision by the courts. Of late very many pronouncements of this court had been cited out of their proper context - that is without any reference at all to the facts either as pleaded or as found and again without any reference to the peculiar circumstances of those cases. In discussing whether in this case the court's jurisdiction has been ousted, one will invariably be confronted with many of our past decisions and it will be necessary to consider each decision with reference to the facts that framed the issues therein before applying it to the facts and peculiar circumstances of the present case.

 

Now how did courts below deal with the crucial issue of jurisdiction? At p.159 of the record of proceedings, the learned trial Judge held:-

 

The main conclusions I have arrived at in this case are that:-

 

(a)     this court has jurisdiction under Section 236 of the Constitution of the Federal Republic of Nigeria 1979, as amended, to adjudicate upon and determine the plaintiff's action herein, and

 

(b)    that the impugned Edict of 1976 and the impugned Order of 1976 are unconstitutional, null and void and of no effect.

 

Having declared The Determination of Certain Interests in State Lands Order 1976 (L.S.L.N. No.9 of 1976) and The Determination of Certain Interests in Lands Edict No.3 of 1976 unconstitutional, null and void, the learned trial Judge then concluded at p.194 of the record as follows:-

 

The Plaintiffs action therefore succeeds and I grant him the following reliefs against the 1st Defendant, that  s to say -

 

Part A

 

(i)     A Declaration that the Determination of Certain Interests in State Lands Order 1976 (L.S.L.N. No.9 of 1976) is unconstitutional, null and void and of no effect whatsoever;

 

(ii)    A Declaration that the Determination of Certain Interests in Lands Edict 1976 is unconstitutional, null and void and of no effect whatsoever.

 

(iii)   A Declaration that the Plaintiff is still the registered owner of each of the Registration of Titles Law; the properties comprised in Title No. LO.7307 registered pursuant to

 

(iv)   An Order for an Account of all rents received by the Government of Lagos State from the properties comprised in the said Title No. LO.7307 from the 22nd day of September, 1975 up to the date of this judgment, and payment over, in the following terms:-

 

(a) ............................................................................

(b) ..................................................................

(c) ..........................................................

(d) .................................................

 

(v)     An Order of Mandatory Injunction that the 1st Defendant and the Government of Lagos State shall forthwith yield up possession to the Plaintiff of each of the properties comprised in Title No. LO. 7307

 

(vi)     An Order of Perpetual Injunction restraining the 1st Defendant and the Government of Lagos State by themselves or their servants or agents or otherwise howsoever from committing any further acts of trespass on the said landed properties.

 

Part B

 

2.      I however enter judgment for the 1st Defendant against the plaintiffs claim for Mesne Profits as that claim is inconsistent with the claim for an account which I have already granted.

 

3.      I enter judgment for the 1st Defendant dismissing the Plaintiffs claim for rectification of the Register of Deeds in respect of the Title.

 

The Defendant dissatisfied and aggrieved then appealed to the Court of Appeal Lagos Division: The grounds of appeal at pages 212 to 214 attacked the jurisdiction and competence of the trial High Court to adjudicate over the plaintiffs claim in spite of the provisions of:-

 

 

(i)     Section 6(6)(d) of the 1979 Constitution.

 

(ii)     The Tribunals of Inquiries Validation etc., Decree No.18 of 1977.

 

(iii)     Section 4(2)(b) of the Tribunal of Inquiries (Validation etc.) Decree No. 18of1977.

 

The Court of Appeal (coram Akpata, Babalakin and Awogu, JJ.C.A.) held inter alia at p.368 of the record per Akpata, J.C.A.:-

 

Having regard to the conclusions I have reached in the various issues that have arisen in this appeal, the appeal in the main fails, and it is dismissed.

 

I will deal with those "various issues" when I consider the Grounds of Appeal to the Supreme Court filed by the Defendant/appellant. But is it significant to note that the Court of Appeal per Akpata, J. C.A., at p.369 held:-

 

However, the declaration made by the learned trial Judge that:-

 

(a)    the Determination of Certain Interests in State Lands Order 1976, and

 

(b)    the Determination of Certain Interests in State Lands Edict 1976, are unconstitutional, null and void and of no effect whatsoever is hereby set aside for lack of competence on the part of the learned trial Judge to make such declaration (italics mine.)   the Determination of Certain Interests in State Lands Edict 1976, are unconstitutional, null and void and of no effect whatsoever is hereby set aside for lack of competence on the part of the learned trial Judge to make such declaration (italics mine.)

 

The above is an acceptance by the Court of Appeal that the learned trial Judge lacked the jurisdiction - call it competence - to declare that the 1976 Edict and the 1976 Order are unconstitutional, null and void. This is dangerously very near the contention of the Defendant/appellant all along, i.e. that the courts have no competence not only to declare the 1976 Order and Edict unconstitutional (here the Court of Appeal agrees) but also to even entertain any suit that will result in that declaration being made (here the Court of Appeal disagrees with the Defendant/appellant).

 

The next significant and rather intriguing statement in the lead judgment of Akpata, J.C.A., at p.369 is as follows:-

 

The position is that, shorn of its implied 'one man one plot' policy, which is wrapped up in the phrase 'otherwise in the public interest so to do', the 1976 Edict as it stands is a perfect piece of legislation (italics mine).

 

My fear here is whether courts of law have the competence to pass "value judgment" on an issue of policy. Lord Parker, when Lord Chief Justice, put it this way:-

 

In modern Britain, where no agreement exists on the ends of society and the means of achieving those ends, it would be disastrous if courts did not eschew the temptation to pass judgment on an issue of policy. Judicial self preservation may alone dictate restraint (Recent Developments in the Supervisory Powers of the Courts over Inferior Tribunals (1959) 27-28).

 

Also de Smith in his Judicial Review of Administrative Action 4th ed. at p.33 wrote:-

 

Judges did of course, pass judgment on issues of 'policy' from time to time but the simplest way of passing judgment on such an issue was to defer to the opinion being advanced by the Executive

 

The uncontroverted evidence of Taiwo Oseni Folami called as D.W.1 (at p.131 of the record) was inter alia as follows:-

 

Question: What was the Policy of the Government of Lagos State on Lands Holding in Victoria Island and Ikoyi as at  August/September 1975?

 

Answer:  At that time the Policy of the Lagos State Government was that no individual should hold more than one plot of State Land at Victoria Island and not more than two plots at South-West Ikoyi, irrespective of whether or not such plots were acquired by direct allocation or by transfer or assignment .............

 

Commenting further on the above Policy, Akpata, J.C.A., continued, still, at p.369:-

 

In effect where there was impropriety in the lease of State Land such as by misrepresentation, deceit or illegality, the 1976 Edict correctly meets the situation.

 

But the Lagos State Government's point of view as pleaded in paragraph 4 of its Further Amended Statement of Defence was that from the date of the coming into effect of its new Lands Policy, it would be improper for any one person to own more than one plot of State land in Victoria Island or more than two plots in South-West Ikoyi since the one man one plot policy was "in the public interest". Since, as Lord Parker observed, no agreement exists on the ends of society and the means of achieving those ends, one cannot dismiss off hand the Land Policy of the Lagos State Government. It is the duty of the courts to recognise and trust the discretion of the Lagos State Government:- Sparks V. Edward Ash Ltd. (1943)1 K.B. 223 at bottom of p.229. If the learned Justices of the Court of Appeal deferred (as they should have done) to the opinion of the Lagos State Government expressed and advanced in its Lands Policy, it would then have found the 1976 Edict and Order (to use the very words of Akpata, J .C A.) "a perfect piece of legislation". The Court of Appeal's "value judgment" on the Lands Policy of the Lagos State clearly coloured its approach to the vital issue of the jurisdiction and competence of the Lagos State High Court to entertain the plaintiff/Respondent's claims.

 

Now having lost, again, in the Court of Appeal, the Defendant/appellant, has now appealed to the Supreme Court. Several issues were raised both in the Briefs of learned counsel and in oral arguments in elaboration of points made in those Briefs. I will, however, deal, first of all, with the Issue of the Competence of the trial court to hear the plaintiff's case. It will certainly be putting the cart before the horse to consider any other issue without a resolution one way or another of the primary, vital and radical issue of jurisdiction.

Issue No.9 as formulated in the appellant's Brief is as follows:-

 

9.    Whether or not the Court of Appeal was right when it confirmed the judgment of the trial court in rejecting the defence of the appellant on the lack of jurisdiction of the court on account of the ouster clauses contained in the following enactments:

 

(i)     Section 6(6)(d) of the 1979 Constitution

 

(ii)     States (Creation and Transitional Provisions) Decree No.17 of 1977.

 

(iii)     Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977.

 

(iv)     Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970.

 

I will consider the appellant's Issue No.9 along with Respondent's Issue No.1 formulated as follows:-

 

1.    Was the 1976 Edict validated by the Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977?

 

Court of Appeal's View of the 1976 Edict:

 

At p.348 of the record of proceedings, the Court of Appeal dealt with the impact of Regulation 3 of the 1976 Order which purported to revoke the Notice Ex. P2 determining the plaintiff/Respondent's interest in the plot now in dispute and held:-

 

I am in full agreement with Mrs. Akinsanya. It is crystal clear from Section 13 of the 1976 Edict that the Notices had been validated and the 'one man one plot' policy had been given the force of law by an Edict.

 

And at p.349 the Court of Appeal continued:-

 

Section 13 accordingly gave a stamp of validity to Ex. P2 The true legal position however is that, on the face of it, by the combined effect of Exhibit P2 and other notices and Section 13 of the 1976 Edict the interest of the Respondent in Plot 272 at Victoria Island was determined because he had another plot, that is, plot 134 registered as LO. 5257 at Victoria Island.

 

There was no cross appeal by the plaintiff/Respondent against the above finding by the Court of Appeal.

 

I now come to the crucial question Was the 1976 Edict validated by the Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977? Section 1 of this Decree was meant to validate ''any tribunal of inquiry (however described or constituted) instituted by the appropriate authority in a State on or after the commencement of this Decree (which was the 29th July 1975 and the 30th September 1977". The commencement date of the Determination of Certain Interests in Lands Edict 1976 was retrospectively put as 12th September 1975. Obviously the date 12th September1975 comes between 29th July 1976 and 30th September 1977. Edict No.3 of 1976 otherwise known as the 1976 Edict was therefore validated by the Tribunals or Inquiries (Validation etc.) Decree No. 18 of 1977. It is this same Edict that the Court of Appeal found at p.349 "gave a stamp of validity to Ex. P2". It is the combined effect" of Section 13 of this same Edict and Ex. P2 that the Court of Appeal found at p.349 determined the interest of the plaintiff/Respondent in and over plot 272 registered as LO. 7307 - the subject matter of the present action. As I observed earlier on, there is no cross-appeal by the plaintiff/Respondent against the above findings of the Court of Appeal. One has therefore to accept that the Committee chaired by D.W.1 set upon the 11th August 1975 has been validated by Decree No.18 of 1977.

 

From yet another angle, the Tribunal or Commission or Committee headed by D.W.1, according to D.W.1's evidence at p.131 lines 15-30 of the record was set up on the 11th day of August 1975 by the Military Governor of Lagos State. This Committee was definitely set up after the commencement date of the Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977. Mr. Folami's (D.W.1) Committee was therefore validated by Decree No.18 of 1977. By Section 1 of the Validation Decree No.18 of 1977 above, the Folami Committee "shall be deemed to be validly instituted or constituted". For the implementation of the Report or Recommendations of the Folami Committee, the Lagos State Government issued the Determination of Certain Interests in Lands Order 1976 (effective from the 12th September, 1975) after the commencement date of Decree No.18 of] 977 which was 29th July1975. By Section 2(a) of Decree No.18 of 1977, the 1976 Order being a "subsidiary instrument respecting the forfeiture" of plot 272 registered as LO. 7307 "shall be deemed to have been validly made ... and shall have full effect in accordance with its tenor".

 

It is important to note that what is being validated by Decree No.18 of 1977 is the tribunal of inquiry however described and "any act or thing done by the appropriate authority in respect of the implementation of the report of such inquiry or tribunal" (here the 1976 Order). Another very important and very relevant provision of Decree No.18 of 1977 is its Section 3(2) which stipulates: -

 

3-(2)     Without prejudice to the foregoing provisions of this Decree Chapter III of the Constitution of the Federation is hereby suspended for the purposes of this Decree and no question whether any provision thereof has been, or is being or would be contravened by anything done or proposed to be done in pursuance of this Decree shall be inquired into in any court of law and accordingly Sections 115 and 117(2)(d) of that Constitution shall not apply in relation to any such question (italics mine).

 

Both the High Court of Appeal discussed the alleged conflict between certain sections of the 1976 Edict and the 1963 Constitution. Akpata, J.C.A., atp. 363 noted:-

 

Even if the Edict and the Order can be said to have been validated, they are null and void to the extent that they are inconsistent with the 1963 Constitution or any Decree and the court can so declare.

 

At p. 368 of the record, Akpata, J.C.A., continued:-

 

However the termination of the interest of the Respondent in plot 272 is null and void and of no effect whatsoever for three reasons:-

 

(1)   Section 6 of the 1976 Edict is in breach of and inconsistent with Section 31(1)(a) of the 1963 Constitution for failure to provide for payment of adequate compensation.

 

(2)   . . . . Therefore determining the Respondent's interest in the plot on the basis of the "one man one plot" policy infringes Section 31(2)(b) of the 1963 constitution in that it adds to the circumstances in which property may be acquired compulsorily.

 

(3)   Section 4 of the 1976 Edict offends Section 31(2)(b) in that its provision falls outside the purpose for which land may be acquired compulsorily ..........

 

Awogu, J.C.A., at p.371 added in support:-

 

There is of course no doubt that Edict No.10 (Sic) of 1976 was an existing law as Akpata, J.C.A., has shown, but Sections 4 and 6 thereof were unconstitutional in so far as they infringed the provisions of Section 31 of the 1963 Constitution.

 

It is obvious from the above extracts from their judgments that the Hon. Justices of the Court of Appeal, with the greatest respect, totally ignored the provisions of Section 3(2) of the Tribunals of Inquiries (Validation etc.) Decree No. 18 of 1977 (which I set out above). That Section suspended Chapter III of the 1963 Constitution which Chapter contains Section 31 and further provided that "no question whether any provision thereof has been, or is being, or would be contravened by anything done or proposed to be done in pursuance to this Decree shall be inquired into in any Court of Law." The 1976 order, as I pointed out earlier on, will stand on Decree No.18 of 1977 or on the 1976 Edict which as I have shown earlier on had been validated by Decree No.128 of 1977. In considering the validity of the forfeiture of the plaintiff/Respondent's plot 272 registered as LO. 7307, the courts will not refer to Chapter III of the 1963 Constitution which had been suspended by Section 3(2) of Decree No.18 of 1977. The two courts below were, with respect, wrong in holding the 1976 Edict unconstitutional for alleged contravention of Section 31 of the 1963 Constitution. They had no jurisdiction to so declare, their power having been taken away by Section 3(2) of Decree No.18 of 1977.

 

The other Decree relied upon by Mrs. Akinsanya was the States (Creation and Transitional Provisions) Decree No.17 of 1977. At p.364 of the record of proceedings, Akpata, J.C.A., observed:-

 

It is obvious that this Decree was necessary to bring sanity to an otherwise confused state of affairs following the creation of 19 States on 3rd February 1976.

 

As Chief Williams rightly pointed out, this Decree was not applicable to States such as Bendel and Lagos State from which no State was carved out.

 

The above, with respect, does not appear to be the correct legal position for Section 2 of Decree No.17 of 1977 dealing with "Validation of Certain Edicts, subsidiary legislation and executive acts" stipulated as follows:-

 

2    (1)     Notwithstanding anything to the contrary in the Constitution (Basic Provisions) Decree 1975 and any other enactment

 

(a)   all Edicts and subsidiary legislation made at anytime between the commencement of the principal Decree and 30th April 1976 on behalf of or in the name of any State created under that Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State; and

 

(b)   .................shall be deemed to have been validly, made or done by the Military Governor, Executive Council, Commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contract, executive or judicial act or as to the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid shall be inquired into by any court of Law" (italics mine for emphasis on the scope of the Decree).

 

Now the principal Decree referred to above is, of course, the States (Creation And Transitional Provisions) Decree No.12 of 1976. This Decree was "made at Lagos this 10th day of March 1976." and given a commencement date of 3rd February 1976. Therefore the expression "any time between the commencement of the principal Decree and 30th April 1976" will mean any period between 3rd February]976 and 30th April 1976. It is here important to note that there is a distinction between the date an Edict was made (was signed into law) and its commencement date. That is the reason why I underlined the word "made" used in section 2(1)(a) of Decree No.17 of 1977.

 

Now the Determination of Certain Interests in Lands Edict No.2 of 1976 -(the 1976 Edict) was "Made at Lagos this 24th day of March 1976" and signed by Captain Adekunle S. Lawal (NN), Military Governor of Lagos State. The 1976 Edict was therefore made between 3rd February 1976 and 30th April 1976. The next crucial question is - What were the States "created under 'that Decree' i.e. the principal Decree?" The answer is supplied by Section 1 of that Decree which stipulates:-

 

1.     There shall on the commencement of this Decree be created States to be known by the names in Column 1 of the Schedule to this Decree the respective areas of which shall be those provinces, divisions, or districts named in Column 2 of that Schedule and the capitals of which shall be those respectively named in Column 3 of that Schedule (italics mine).

 

In the Schedule referred to above, one of the States created by Decree No.12 of 1976 - the principal Decree is Lagos State with an area comprising Badagry, Ikeja, Lagos, Ikorodu and Epe and with Ikeja as capital. It is therefore legally wrong to hold that Decree No.17 of 1977 15 not applicable to Lagos. It is applicable for Lagos State is one of the States created under the principal Decree. The Decree No.12 of 1976 itself, says that Lagos State is one of the States it created.

 

Decree No.17 of 1977, by its Section 2(1)(a) precluded any court of law from inquiring into the validity of the 1976 Edict or into any act done under the Edict such as the forfeiture of plot No.272 registered as L.O. 7307.

 

Mrs. Akinsanya was here batting on a very strong wicket. The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of the superior court but that which specifically appears to be so. It is true that the powers of the courts are great, they are however not unlimited. They are limited by any ouster clause. In these days that a Decree has supremacy even over the Constitution (see the Federal Military Government (Supremacy etc.) Decree No.28 of 1970), any clear and specific ouster in a Decree as in Section 2(1)(a) of Decree No.17 of 1977 has to be seriously considered and religiously obeyed. It is the duty of the courts to expound their jurisdiction but it is no part of our duty to expand our jurisdiction. That will require legislation. The best advice here is that given by Rigby, L.J. in Re Watkins (1896) L.R.2 C.D. p.339 that "we ought not to overstep our jurisdiction because we think it might be advantageous so to do". I agree with Mrs. Akinsanya that Section 2(1)(a) of Decree No.17 of 1977 totally robbed the courts of jurisdiction to entertain the plaintiff/Respondent's claim.

 

I will now deal with yet another hurdle for the plaintiff/Respondent to clear before his case can be adjudicated upon and determined by our courts. He has to show that the court has jurisdiction in spite of the provisions of Section 6(6)(d) of the 1979 Constitution. I agree with the learned trial Judge Balogun, J., that the 1979 Constitution by its section 236 conferred on State High Courts "unlimited jurisdiction". But the self same Section 236(1) (of the 1979 Constitution) is expressly stated to be "subject to the provisions of this Constitution". One such provision is Section 6(6)(d) which stipulates:-

 

S.6-6

 

The judicial powers vested in accordance with the foregoing provisions of this section -

 

(d) (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to an existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law

 

By Section 6(6)(d) above, any power or competence which was given to State High Courts by Section 236 of the 1979 Constitution, is conditional on there still existing a residue after discounting the power removed by that Section (S.6(6)(d)). Also S.6(6)(d) embraces the period 15th January 1966 to 1st October 1979. The 1976 Edict by Section 274(4)(b) qualifies as an existing law. The 1976 Edict is therefore one of the laws envisaged by section 6(6)(d).

 

The main claim of the plaintiff/Respondent is for a Declaration that, notwithstanding the 1976 Order based on the 1976 Edict, he is still the owner of properties comprised in Title No. Lo.7307. It is also correct that the 1976 Order being a statutory instrument is also an existing law. The declaration sought is an indirect attack either on the 1976 Edict or the 1976 Order. By paragraph 4 of his Amended Statement of Claim - "The Plaintiff will contend at the trial that the provisions of section 1 of the 1976 Edict are unconstitutional, null and void". In paragraph 9 of the Amended Statement of Claim, the Plaintiff attacked the 1976 Order (another existing law) as "illegal and null and void because the law under which it was made was unconstitutional". I, earlier on set out in detail the Amended Statement of Claim because every paragraph therein constituted a challenge to the competence of the Lagos State Military Government to forfeit the properties comprised in Title LO.7307 via the 1976 Edict and the 1976 Order. It is also a challenge to the validity of both the Edict and the Order, for if the 1976 Edict and 1976 Order are both valid, they would have effectively determined the Plaintiff/Respondent's interest in Title No. LO.7307. In a recent case of Joseph Mangtup Din V. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt. 87)148 at p.171 this court held that an indirect challenge to the validity of Act No.58 of 1970 forfeiting the appellant's property "falls well within the ambit of the provisions of Section 6 subsection (6)(d) of the 1979 Constitution.

 

Courts guard their jurisdiction zealously and jealously. And that is how it should be. But if, in any given case that jurisdiction has been ousted by the provisions of the Constitution or a Decree (Act), then the path of constitutionalism will dictate a willing compliance with the ouster clauses. In this case, the combined effect of:-

 

(i)     Decree No.18 of 1977 which validated any act (here the forfeiture of Plaintiffs plot) done by the appropriate authority (the Governor of Lagos State) in respect of the implementation of the Folami Committee or tribunal and which suspended Chapter 3 of the 1963 Constitution and with it its Section 31 thereof.

 

(ii)     Decree No.17 of 1977 which validated the 1976 Edict further provided that no question as to the validity of any executive act (here the forfeiture of the plaintiff/Respondent's lot now in dispute by the Military Governor) etc "shall be inquired into by any Court of Law."

 

(iii)   Section 6(6)(d) of the 1979 Constitution which drastically limited the unlimited jurisdiction conferred on the State High Court by Section 236 of the self same Constitution.

 

is that the trial Court had no jurisdiction to try the plaintiff/Respondent's case. Its judgment given without jurisdiction cannot be allowed to stand. The same is hereby set aside.

 

The Court of Appeal on its part was wrong in not allowing the Defendant/ appellant's appeal solely on the ground of lack of jurisdiction in the trial court. Its own appeal judgment was also delivered without jurisdiction. That, too, will not be allowed to stand. The appeal judgment and orders of the Court of Appeal Lagos Division are also hereby set aside.

 

In the final result, the Defendant/appellant's appeal succeeds and the same is hereby allowed. There will be costs against the plaintiff/Respondent in favour of the Defendant as follows:-

 

(i)

 in this Court

N500.00

(ii)

 in the Court of Appeal

N300.00

(iii)

 in the High Court

N200.00

 

Sister Cases:

 

The trial court at p.196 of the record proceeded to "pronounce similar judgment as in this case in each of the Sister Cases herein in accordance with the consent given in that behalf by learned counsel for the parties in those sister cases.

 

Now that I have held that the trial court had no jurisdiction to hear the test case, then any pronouncement in the "Sister Cases" was made without jurisdiction.

 

 

Judgment delivered by

Bello. C.J.N.

 

The Respondent, Hon. Justice Dosunmu, was the registered owner of Plots Numbers 134 and 272 on Victoria Island and Plot Number 571 at South-West Ikoyi granted to him on leases by the Lagos State Government under the provisions of the State Lands Law, Chapter 130 of the Laws of the Lagos State of Nigeria 1973. In July, 1975, the Military Government of Lagos State adopted an equitable policy on leases of State lands that a person should not own more than one plot of State land on Victoria Island and not more than two plots in South-West Ikoyi.

 

In pursuance of the policy, the Military Governor appointed a Committee of three officers, Mr. T. O. Folami, Mr. D.O. Ijeru and Mr. Ashorobi to inquire into acquisitions of State lands and to report on all persons who had acquired, whether by grant or by purchase, more plots than was formulated by the policy. After consideration of the report of the Committee the Military Governor by notice published in the National Newspapers of 12th September, 1975 determined the interests in the State lands of all those persons found to have acquired more plots than was permitted and forfeited the same to the Government of Lagos State. Plot number 272 comprised in Title No. LO.7307 of the Respondent, which he had developed, was among the interests determined and forfeited. Statutory effect was given to the determination by the Determination of certain Interests in State Lands Order 1976 with retrospective effect from 12th September, 1975. The Order was made by the Military Governor of Lagos State in exercise of the powers conferred by the Determination of certain Interests in Lands Edict 1976 which also had retrospective effect from 12th September, 1975, hereinafter referred to as "the Edict." Thus, by virtue of the Edict and the order the interest of the Respondent in the said plot stood determined and forfeited with effect from the 12th September, 1975.

 

The Edict made provisions for payment of compensation for any interest determined. The provisions of sections 6 and 7 which set out the formula for the assessment and computation of compensation payable are germane to the issues canvassed by the parties. The sections read:-

 

6.     In computing compensation payable under this Edict, account shall be taken of any building on the state land, so however that any compensation payable shall be, as respects

 

(a)     developed land -

 

(i)     for an amount equal to the sum total of all deed fees and ground rents paid in respect of the lease up to the date of the determination of the lease, and

 

(ii)     for the amount of the actual cost of construction of the building in accordance with an approved plan.

 

(b)    undeveloped land - for the sum total of all deed fees and or ground rents paid in respect of the lease up to the date of the determination of the lease plus reasonable expenditure incurred in respect of architect's fees, surveyor's fees and fees in respect of development approvals or permits granted by the appropriate planning authorities.

 

7      (1)    In the case of developed land affected by this Edict and which has been sublet, any advance rents received beyond the date of determination of the interest shall be deducted from any compensation due to such lessee as assessed under section 6(a) above.

 

(2)   Where any advance rents exceed the compensation due under section 6(a) above, no person shall be required to pay any difference between the advance rents and such compensation.

 

Now, after the exit of the then Military Regime, the Respondent on 17th September, 1981 filed this suit in the High Court of Lagos State claiming against the appellant as per the amended Writ:-

 

(1)    a declaration that notwithstanding the provisions of Determination of Interests in State Lands Order 1976, he is the registered owner of each of the properties comprised in Title No. LO.7307 registered pursuant to the Registration of Titles Law;

 

(2)    an account of all rents received by the Government of Lagos State and or any of its agencies from the land building comprised in the aforesaid titles and payment over to the Plaintiff of the sum due after taking such account;

 

(3)    mesne profits

 

(4)    an injunction restraining the Government of Lagos State and or any of its agencies as well as all officers agents or servants of the said Government of Lagos State from trespassing or continuing to commit acts of trespass on the said properties or either of the said properties; and

 

(5)    an order for the rectification of the Register of Titles by restoring the Plaintiff as the registered owner of the land comprised in Title No.LO.7307.

 

The facts of the case were not in dispute. The gravamen of the issues were the constitutional validity of the Edict, the competence of the Military Governor to make it and the jurisdiction of the High Court to determine its validity.

 

As my decision in this appeal hinges on the issue of jurisdiction, it is necessary to set out the pleadings of the parties relevant to that issue. The amended Statement of Claims averred:-

 

2.    Sometime in 1975 the Lagos State Government published in the National newspapers and subsequently in the Lagos State Gazette a statement to the effect that the disputed plots have been forfeited to the Government of Lagos State. The said statement was dated 12th September 1975 and was issued by the Military Governor.

 

3.     By an Edict said to have been made on 24th day of March, 1976 the then Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict 1976 and published to make its operation retrospective. The said Edict is hereafter referred to as "the 1976 Edict"

 

4.    Section 1 of the 1976 Edict provides that if the Military Governor is satisfied that there has been any impropriety in the acquisition of any interest in any State Land by any person or that is otherwise in the public interest so to do, he may, at any time up to 30.6.76 determine the interest in State Land of any such person by order published in the gazette. The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Section 22(1) and 31(1) and the Constitution of the Federation, 1963.

 

5.    Prior to the publication pleaded in paragraph 2 of this Statement of Claim the Military Governor of Lagos State did not institute any tribunal of inquiry to ascertain how the plaintiff acquired his property.

 

6.    If, which is denied, any inquiry was held, the plaintiff will contend that it was a sham of an inquiry and not a genuine one.

 

7.    If, contrary to the contention of the plaintiff, the court should find that there was an inquiry, then the plaintiff states that such inquiry was illegal, unconstitutional and amounts to a nullity because the plaintiff was not given the opportunity to being heard contrary to the Rules of Natural Justice and to the provisions of Section 22(1) of the Constitution of the Federation, 1963.

 

8.    By an Order said to have been made on the 11th day of May 1976 in exercise of the powers conferred on him by Section 1 of the 1976 Edict, the Military Governor of Lagos State, inter alia, purported to determine the interest of the plaintiff in the disputed plot. The said Order (hereafter referred to as "the 1976 Order") is published as L.S.L.N. No.9 of 1976 and cited as the Determination of Certain Interests in Lands Edict (No.3 of 1976).

 

9.    The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal and null and void because the law under which it was made was unconstitutional and void.

 

10.   If the court should hold that the 1976 Edict and the 1976 Order are valid and constitutional, the plaintiff states that there was absolutely no evidence available to the Military Governor capable of satisfying a reasonable tribunal, properly directed, that there had been any impropriety in the acquisition by the plaintiff of his rights and interest in the disputed plots.

 

It appeared from the pleadings and was later on amplified by the submissions of the learned counsel for the Respondent in the trial court, the Court of Appeal and in this Court, that the Respondent challenged the competence of the Military Governor to make the said Edict and his competence to determine the interest of the Respondent by the Order made under the Edict.

 

The amended Statement of Defence having averred that after the adoption of the said policy on State lands, the Military Governor on 11th August, 1975 instituted a tribunal of inquiry as a Committee which inquired into State lands acquisitions and submitted its report to the Military Governor, the appellant went on to aver:-

 

9.    The report showed that the plaintiff held more than one plot of State Land on Victoria Island and/one plot of land in South West Ikoyi.

 

9                (a)  The plaintiff held plots No,134 and 272 on Victoria Island and Plot No.571 at South West Ikoyi. The Defendant will rely on certificates of title No. LD 5257, LO 7307 and LO 4295 at the trial of this action.

 

10.   The lists made by the Committee were published in various Newspapers in the month of September1975. The Defendant will rely on the report of the Committee, the lists made by the Committee, the Newspaper publications of the said lists at the trial of this action.

 

11.    In implementation of the report of the Committee, the Military Governor of Lagos State on the 24th day of March 1976, promulgated or made the Determination of Certain Interests in Lands Edict No.3 of 1976 determining the interest of the plaintiff in the State Land comprised in title No. LO 7307.

 

12.    In implementation of the report of the Committee and consequent upon the promulgation of the Determination of Certain Interests in Lands Edict No.3 of 1976, the Registrar of Titles, effected the necessary changes in the proprietorship Register at the Lands Registry in Lagos.

 

13. The Defendant will contend at the trial of this case that:

 

(i)    The Determination of Certain Interests in Lands Edict No.3 of 1976 and the instruments titled "Determination of Interests in State Lands order 1976" made thereunder by the Military Governor of Lagos State are Edict and subsidiary legislation respectively within the meaning of Section 2 of the States (Creation and Transitional Provisions) Act, No.17 of 1977.

 

(ii)   That the Committee appointed by the Military Governor of Lagos State referred to in paragraph 4 hereof is a Tribunal of inquiries (Validation etc.) Act, 1977. (stet)

 

(iii)   That under and by virtue of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970, this action as instituted by the plaintiff was not maintainable against the Defendants before the 30th day of September, 1979 when Sections 22 and 31 of the Constitution of the Federation 1963 were in operation,

 

(iv)  That since the 1st day of October 1979, the provisions of the Constitution of the Federal Republic of Nigeria 1963 are no longer applicable in Nigeria under Section 1 of the Constitution of the Federal Republic of Nigeria 1979.

 

(v)    That this action as instituted by the plaintiff being an action of proceedings relating to or for determination of an issue or question as to the competence of the Military Governor of Lagos State to make or promulgate the Determination of Certain Interests in Lands Edict, 1976 and the Order made thereunder is not maintainable in any court under Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.

 

(vi)   That the Military Governor who determined the plaintiff's interest in the State Land No.272 comprised in the title No. LO 7307 was a public officer and as such the plaintiffs action is statute-barred.

 

(vii) That the determination of Certain Interests in Lands Edict No. 3 of 1976 was validly made.

 

(viii) That the determination of the plaintiffs interest in the property comprised in Title No. LO 7307 was done.

 

(ix)   That this action cannot be based on the contravention of any part of Chapter III of the Constitution of the Federal Republic of Nigeria 1963.

 

It is appropriate for the proper appreciation of the issue of jurisdiction to identify the relevant provisions of the Constitutions and the Decrees. The Respondent predicated his challenge of the validity of the Edict on the ground that it was inconsistent with the provisions of Sections 22(1) and 31(1) of the Constitution of the Federation, 1963 which read:-

 

22(1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:

 

31(1) No property, movable or immovable, shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except by or under the provisions of a law that -

 

(a)     requires the payment of adequate compensation therefore; and

 

(b)   gives to any person claiming such compensation a right of access, for the determination of his interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria

 

(2)    Nothing in this section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date that amends or replaces any such law and does not:-

 

(a)    add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired;

 

(b)   add to the purposes for which or circumstances in which such property may be taken possession of or acquired;

 

(c)    make the conditions governing entitlement to any compensation or the amount thereof less favourable to any person owning or interested in the property; or

 

(d)  deprive any person of any such right as is mentioned in paragraph

 

(b)  of subsection (1) on this section.

 

On the ouster of jurisdiction of the courts, the appellant relied, firstly, on the States (Creation and Transitional Provisions) Decree 1976 No.12, called the principal Decree, read with the States (Creation and Transitional Provisions) Decree 1977 No.17. Sections 1 and 2 of the principal Decree read:-

 

1.     There shall on the commencement of this Decree be created states to be known by the names in Column 1 of the Schedule to this Decree the respective areas of which shall be those provinces, divisions or districts named in Column 2 of that Schedule and the capitals of which shall be those respectively named in Column 3 of that Schedule.

 

2.     There shall be for each state a Military Governor who shall be appointed by the Supreme Military Council.

 

While section 2 of the Decree 1977 No.17 provided:-

 

2(1) Notwithstanding anything to the contrary in the Constitution (Basic Provisions) Decree 1975 or any other enactment:-

 

(a)    all Edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April 1976 on behalf of or in the name of any State created under the Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State; and

 

(b)   all contracts and all executive and judicial acts, including acts pertaining to the appointment, transfer and the exercise of disciplinary control over public officers of a State created under the principal Decree as foresaid entered into or done by the appropriate authority of the former State between the commencement of the principal Decree and 30th April 1976,

 

shall be deemed to have been validly made or done and shall have effect as if they had been duly made or done by the Military Governor. Executive Council, Commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contract, executive or judicial act, or as to the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid, shall be inquired into by any court of law.

 

(2)    The reference in subsection (1) above to the appropriate authority is a reference to the Military Governor of a former State or any person or authority acting under his direction, or any commission or any body, whether corporate or unincorporate, or any public or judicial officer empowered by law to exercise the power concerned.

 

Both Decrees had effect from 3rd February, 1976.

 

In parenthesis, it may be noted that "Lagos" was named in Column 1 item (1) in the Schedule to the principal Decree. Accordingly, at the material time Lagos State was created by the principal Decree.

 

The appellant also relied on the provisions of the Tribunals of Inquiries (Validation, etc.) Decree No.18 of 1977 which was deemed to have come into effect on 29th July 1975. It is necessary to set out fully the relevant provision of the Decree:-

 

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 of inquiry (however described or constituted) -

 

(d)    to inquire into any matter whatsoever in the State, the tribunal of 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 of inquiry to which subsection (1) of this section relates was or has validly instituted or constituted, or whether any Law, Edict or subsidiary instrument under which the tribunal of 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 his Decree applied respecting -

 

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

 

3     (1)    For the purposes of section 1 or 2 of this Decree it shall be immaterial: -

 

(a)   that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power, or that any act or thing done was expressed as having been done in exercise of any power conferred under any particular law;

 

(c)   that the law or power under which an act or thing was done was not stated.

 

(2)    Without prejudice to the foregoing provisions of this Decree, Chapter III of the Constitution of the Federation is hereby suspended for the purposes of this Decree, and no question whether any provision thereof has been or is being or would be contravened by anything done or proposed to be done in pursuance of this Decree shall be inquired into in any court of law; and accordingly sections 115 and 117(2)(d) of that Constitution shall not apply in relation to any such question.

 

4     (1)    In this Decree:-

 

         "appropriate authority" means the Military Governor of a State and any person or authority acting under the direction of the Military Governor of the State.

 

(2)     The reference in this Decree -

 

(a)    to a State shall be constructed as including a reference to a State created under the States (Creation and Transitional Provisions) Decree 1967; and

 

(b)    to a tribunal of inquiry shall be constructed as including a reference to any committee, commission, panel or any other person or body, however described or constituted, appointed to inquire into any matter to which section 1 of this Decree relates.

 

With regard to the superiority of a Decree over any of the provisions of the 1963 Constitution, the appellant sought the aid of section 1(2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 which provided:

 

..........any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and no effect whatsoever as from the date of the making thereof.

 

The three planks upon which the defence on jurisdiction was rested may be summarised thus:-

 

Firstly, by virtue of the provisions of section 1 of Decree No.12 of 1976 read with section 2 of Decree No.17 of 1977, the validity of the Edict and the Order should not be inquired into in any court of law.

 

Secondly, having regard to the provisions of Decree No.18 of 1977, Folami's Committee which inquired into the disputed property was a Tribunal and as such the court should not have inquired into the questions:-

 

(1)     whether the Committee had been validly instituted or constituted; and

 

(2)     whether the Edict and the Order which implemented the Committee's report had been validly made.

 

It is worthy to note that the very provisions of sections 22 and 31 of the 1963 Constitution upon which the Respondent as plaintiff based his claim had been suspended for the purposes of the Decree by its section 3.

 

Thirdly, the Edict and the order being existing laws, section 6(6)(d) of the 1979 Constitution excludes the jurisdiction of the courts to determine the competence of the then Military Governor to make the Edict and the Order.

 

In his judgment, the trial Judge, Balogun, J., did not make any pronouncement on the first issue on jurisdiction under Decrees 12 of 1976 and 17 of 1977. He did not allude to the Decrees. With regard to the other two issues, he held that the court had jurisdiction. On the second issue, after having rejected the evidence of Mr. Folami relating to the Committee of inquiry, he stated thus:

 

In this case I am firmly of the view and I hold that there is no legally admissible evidence that:-

 

(a)   the. Military Governor after the enactment or promulgation of the Determination of Certain Interests in Lands Edict, 1976, had at any material times set up a Tribunal of inquiry (by whatever name called to investigate whether there has been any impropriety in the acquisition of any interest in a State Land by the plaintiff or whether it was otherwise in the public interest to do so:

 

(b)   the provisions of the Tribunal of Inquiries (Validation ETC) Decree 1977 can apply to this case; and

 

(c)   in forfeiting the disputed property the Military Governor was implementing the Report of any tribunal of inquiry.

 

I therefore reject the submissions of learned counsel for the 1st Defendant to the contrary.

 

As regards the third issue, relying on Peenok investments Limited V. Hotel Presidential Limited (1983)4 N.C.L.R. 122 and Isidaehomen & Others V. The Governor of Bendel State (1986) 5 N.W.L.R. (Pt.39) 58, he concluded:

 

I cannot find anything in the language of section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979 which has altered the law on the jurisdictional point. In this case the plaintiff has not raised any issue debarred by the provisions of section 6(6)(d) aforesaid. What the plaintiff has raised for determination in this action, as it seems to me, are in the main, (1) whether the provisions of the 1976 Edict and the 1976 Order are inconsistent with the provisions of the Constitution of the Federation 1963 (particularly, section 31(2)(a)) thereof and/or any Decree; and (2) whether the failure of the Military Governor to give the plaintiff opportunity of being heard before the Military Governor was "satisfied" under section 1 of the 1976 Edict that the property should be forfeited makes the forfeiture invalid as having been made in breach of the rules of justice.

 

The learned trial Judge entertained the claim and entered judgment for the Respondent and for the other plaintiffs in the sister cases.

 

Not satisfied with the decision of the trial court, the present appellant a p pealed to the Court of Appeal upon several grounds of appeal, including the three issues on jurisdiction. The Court of Appeal decided the three issues in favour of the Respondent. With respect to the issue relating to the States (Creation and Transitional Provisions) Decrees Nos. 1211976 and 1711977 which the trial Judge failed to determine, Akpata, J.C.A., stated in his lead judgment and concurred by Babalakin, J.C.A., and Awogu, J.C.A.:

 

It is obvious that this Decree (Decree No.17 of 1977) was necessary to bring sanity to an otherwise confused state of affairs following the creation of 19 States in the Federation on 3rd February, 1976. For instance, the former Western State was broken into three States, Oyo, Ondo and Ogun. By this Decree, any Edict enacted or anything done by the Governor of Oyo State between 3rd February, 1976 and 30th April. 1976, even though Ogun and Ondo had been carved out from the Western State on 3/2/76, would be applicable to Ogun and Ondo States. As Chief Williams rightly pointed out this Decree was not applicable to States such as Bendel and Lagos States from which no State was carved out.

 

Therefore, the provision in Decree No.17 of 1977 that "no question as to the validity of any such Edict shall be inquired into by any court of law" only relates to any Edict enacted between 3/2/76 and 30/4/76 by the Governor of another State which is applicable to the new State or States. The 1976 Edict is not "such Edict" and the 1976 Order is also not protected by the Decree. (bracket mine)

 

On the issue of the Tribunals of Inquiries (Validations etc) Decree 1977, the Court of Appeal held that the trial Judge had erred to disregard the un-controverted evidence of Mr. Folami that the Committee had been instituted and the Military Governor made the Edict and the Order in consequence of the Committee's report. However, the lead judgment stated as follows:-

 

The truth however, is that having regard to the time of the setting up of the committee, which was in August, 1975, it cannot be regarded as a tribunal of inquiry set up by virtue of the 1976 Edict, the commencement date of which was 12th September, 1975. Therefore since the 1976 Edict was based on the report of any tribunal of inquiry set up pursuant to it, and to which Section 1 of this Decree applies it is not validated by the Tribunals of Inquiries (Validation etc) Decree 1977. Even if the Edict and Order can be said to have validated, they are null and void to the extent that they are inconsistent with the 1963 Constitution or any Decree, and the Court can so declare.

 

Lastly, referring to section 6(6)(d) of the 1979 Constitution, the Court of Appeal wrote:-

 

As Chief Williams rightly submitted, there is a distinction between asking the court to pronounce on the invalidity of an "existing law" which Section 6(6) does not allow, and asking the court to pronounce that an "existing law" is inoperative on the ground of its inconsistency with a Decree or an enactment which had the force of law at the time when the "existing law" came into being. As Idigbe, J.S.C., clearly observed in Uwaifo V. Attorney-General of Bendel State (1983)4 N.C.L.R. 1 at page 35:

 

Clearly, by virtue of Sections 6(6)(a), 6(6)(b) and 4(8) of the Constitution aforesaid, the courts had jurisdiction to determine issues or questions as to whether any law, including those unrepealed laws which were made between 15th January 1966, and 1st October 1979 (or the provisions thereof) is consistent with the provisions of the 1979 Constitution for the purpose of giving effect to it under the existing Constitution; and for this purpose, but to this extent only, the courts can declare such a law or portions thereof invalid. This, however, is a different thing from saying that courts have a general power to pronounce on the validity of such laws which were made between 15th January, 1966, and 1st October 1979 on the ground that there never was any authority, legal qualification, or legal jurisdiction or power to make such laws; and thus indirectly rendering invalid whatever action that must have been taken under the provisions of such law.

 

This distinction is apparent from Section 274(3) of the 1979 Constitution which states:-

 

3.     Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid and any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say -

 

(a)     any other existing law;

 

(b)     any provision of this Constitution.

 

In Prince Yahaya Adigun & Others V. Attorney-General of Oyo State & Ors. (1987)1 N.W.L.R. (part 53)678, at page 795, Obaseki, J.S.C., made the point that "the provision of Section 274(1) of the 1979 Constitution imposed an exercise on the court in its interpretative jurisdiction in order that effect shall be given to an existing law without prejudice to their powers to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law.

 

It is thus clear that Section 6(6)(d) of the 1979 Constitution does not avail the appellants a defence except as to the gratuitous exercise of Balogun, J., in declaring the 1976 Edict and Order null and void in their entirety. The learned trial Judge obviously went beyond his jurisdiction. He was not competent to pronounce on the invalidity of an existing law such as the 1976 Edict. Besides the Respondent did not pray the court to so pronounce.

 

The Court of Appeal dismissed the appeal but reduced the costs from N5,000.00 to N1,000.00 in the trial court and assessed costs at N3500.00 in that Court. The Court desisted from commenting on the judgment of the trial court in the sister cases.

 

One of the questions for determinati6n by this Court in the appeal is whether the Court of Appeal was right in upholding the decision of the trial court that it had jurisdiction to try the case.

 

Arguing the grounds of appeal on the question, the learned Director of Civil Litigations representing the appellant contended that the Court of Appeal erred in law in several respects, to wit, by holding that the provisions of Decree No.17 of 1977 did not apply to Lagos State; that the Folami Committee could not be regarded as a tribunal or an inquiry within the purview of Decree No. 18 of 1977 and consequently the Edict and the Order had not been validated by the Decree; and that section 6(6)(d) of the 1979 Constitution did not avail the appellant as a defence "except as to the gratuitous exercise of Balogun, J., in declaring the 1976 Edict and the Order null and void in their entirety" per Akpata, J.C.A. I do not intend to reiterate the comprehensive and meticulous submissions of the learned Director on these three constitutional issues relating to the question. My learned brother, Oputa, L.S.C., had done justice to all of them in his lead judgment.

 

Responding, Chief Williams, S.A.N., for the Respondent submitted that the Court of Appeal had rightly held that the Decree No.17 of 1977 did not apply to Lagos State; that the Edict and the Order were not among the enactments validated by Decree No.18 of 1977. On the issue relating to section 6(6)(d) of the 1979 Constitution. Chief Williams contended that the sub-section ousted the jurisdiction of the courts to inquire into the validity of existing law which was in force before the commencement of the Constitution. Referring to Uwaifo V. Attorney-General of Bendel State (1982) 7 S.C. 124, he stated the decision in that case did not validate an Edict which was invalid at the time it was made. He submitted that notwithstanding the provision of the sub-section, the court has jurisdiction to determine the constitutionality of an Edict at the time of its enactment.

 

The first issue for consideration is whether the Court of Appeal was right that the provisions of Decree No.17 of 1977 did not apply to Lagos State. A short history of the State is necessary for the purpose. The State was first created by the States (Creation and Transitional Provisions) Decree 1967 which was repeated by the States (Creation and Transitional Provisions) Decree No.12/1976 that created nineteen States including Lagos State with effect from 3rd February, 1976. So, as from that date the State was created by Decree No.12 of 1976 which was defined by section 6 of the States (Creation and Transitional Provisions) Decree No.17 of 1977 as "the principal Decree."

 

Now, for ease of reference, section 2(1)(a) of Decree No.17 of 1977 may be reproduced: -

 

2(1)     Notwithstanding anything to the contrary in the Constitution (Basic Provisions) Decree 1975 or any other enactment 

 

(a)    All Edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April on behalf of or in the name of any State created under that Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State; shall be deemed to have been validly made or done and shall have effect as if they had been duly made or done by the Military Governor, Executive Council, Commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contract, executive or judicial act, or as to the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid, shall be inquired into any court of law.

 

(2)    The reference in subsection (1) above to the appropriate authority is a reference to the Military Governor of a former State or any person or authority acting under his direction, or any commission or any body, whether corporate or unincorporate, or any public or judicial officer empowered by law to exercise the power concerned.

 

Under section 6 of the Decree "former State" means any State created under the States (Creation and Transitional Provisions) Decree 1967.

 

Now, the evidence of Mr. Folami shows that Military Governor Captain Lawal appointed the Committee and forfeited the property between August and September 1975. He was then the Military Governor of Lagos State within the meaning of Decree No.17 of 1977. He, however, enacted the Edict, after the principal Decree.

 

It is clear the Edict fell squarely within the scope of section 2 of Decree No. 17 of 1977. The principal Decree was made on 3rd February, 1976 and the Edict was made by the Military Governor on 24th March, 1976 which was before 30th April, 1976. Consequently, by virtue of subsection 2(1) of the Decree, no question as to the validity of the Edict should be inquired into in any court of law. The Court of Appeal did not carefully examine the provisions of Decrees 12 of 1976 and 17 of 1977 in concluding that Decree No.17 of 1977 did not apply to Lagos State. I hold that the Decree applied to the State and that subsection 2(1)(a) ousted the jurisdiction of the court to determine the validity of the Edict.

 

However, the Order was made on 11th May, 1976, which was after 30th April, 1976, and so was outside the ambit of the subsection. Accordingly, having regard to the date the Order was made, Decree No.17 of 1977 did not oust the jurisdiction of the court to determine the validity of the order.

 

But, the matter did not stop there. Decree No.18 of 1977 made on the 8th March, 1977 but with retrospective effect from 29th July, 1975 came into the scene.

 

I have earlier shown in this judgment that the Court of Appeal held that Decree 18 of 1977 did not validate the Edict and Order because the Committee was not set up by virtue of the Edict. The Court proceeded to state:-

 

Even if the Edict and Order can be said to have been validated, they are null and void to the extent that they are inconsistent with the 1963 Constitution or any Decree, and the Court can so declare. (Italics mine)

 

It appears, in so holding, the Court of Appeal made two errors. It not only misconceived what constituted a tribunal of inquiry under the Decree but it also misconstrued the effect of validating an Edict or order by the Decree.

 

As regards the Committee, section 1 of Decree 18 of 1977, the relevant provisions set out supra, provided that where from 29th July, 1975 to 30th September, 1977, the Military Governor of a State had instituted any tribunal of inquiry, however described or instituted, to inquire into any matter whatsoever in the State, the tribunal of inquiry should be deemed to have been validly instituted or constituted notwithstanding anything to the contrary in any enactment, law or rule of law. Section 4(2)(b) of the Decree defined "a tribunal of inquiry" to include any committee, commission, panel or any other person or body, however described or constituted, appointed to inquire into any matter to which section 1 of the Decree related.

 

The provisions of the Decree are quite clear and unambiguous that any committee appointed by the Military Governor of a State to inquire into any matter in the State constituted a tribunal of inquiry within the scope of the Decree. The tribunal needed not to be instituted by virtue of any Edict as the Court of Appeal was inclined to think. The form setting up the tribunal, whenever under Edict or any instrument or orally or by sign was irrelevant. It is obvious that Mr. Falomi's Committee instituted in August, 1975 was a tribunal of inquiry within the provisions of the Decree and ought to be deemed to have been validly instituted by virtue of section 1 of the Decree.

 

Furthermore, since the Edict and Order were enacted by the Military Governor of Lagos State in respect of the implementation of the report of the Committee, i.e. the tribunal, both the Edict and Order were validated by section 2 of the Decree.

 

Again, in nullifying the Edict and Order to the purported extent that both were inconsistent with the provisions of sections 22 and 31 and the 1963 Constitution, the Court of Appeal overlooked section 3(2) of the Decree which suspended chapter III of the Constitution which included sections 22 and 31 thereof.

 

Also, in nullifying the Edict and Order for being inconsistent with "any Decree", the Court of Appeal did not state the particular Decree. Moreover, the Court failed to realise that if the Edict and Order had been validated by the Decree, then both had the force and effect of the Decree and as such, even if the Decree did not suspend chapter III of the Constitution, the Edict and the Order superseded the provisions of the 1963 Constitution by virtue of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970.

 

Accordingly, I hold that both the Committee, the Edict and the Order were validated by Decree 18 of 1977 and as such a court of law had no jurisdiction by virtue of sections 1(2) and 2(2) of the Decree to determine their validity.

 

The case of Peenok V. Hotel Presidential (supra) and the decisions of this Court in earlier cases before it may be distinguished. The impunged Edicts Nos. 15 and 17 in the Peenok case were made in 1972 which was outside the period, 3rd February, 1976 and 30th April, 1976, covered by Decree No.17 of t977. Furthermore, there was no issue of a tribunal of inquiry in the case and consequently the provisions of Decree No.18 of 1977 were not invoked. The case was filed in the High Court of Rivers State on 12th April, 1977 and the court delivered judgment on 16th January 1978 before the 1979 Constitution came into force. For these reasons, the issues relating to jurisdiction canvassed in the case at hand had not been taken and determined in Peenok case and all similar cases decided before it.

 

It follows from the foregoing that before 1st October, 1979, when the 1979 Constitution came into force, the courts had no jurisdiction by virtue of the provisions of Decrees Nos. 17 and 18 of 1977 to determine the validity of the Edict and the Order.

 

Now it needs to be emphasised that as from 1st October, 1979, all the courts in the Federation derive their jurisdictions from the 1979 Constitution. Where the Constitution expressly and in clear and unambiguous terms ousts the jurisdiction of any court of law from determining a particular issue or question, then the court is duty bound to give effect to the ouster. In Uwaifo V. Attorney-General of Bendel State (1982) 7 S.C. 124, this Court laid down in unequivocal ratio decidendi that by virtue of the provisions of section 6(6)(d) of the Constitution, a court of law has no jurisdiction to determine the competence of a Military Governor to make any Edict or the competence of the Federal Military Government to promulgate any Decree that had been made between 1st January, 1966 and 1st October, 1979. The portion at page 309 of the Report in judgment of Uwais, J.S.C., is apt where he stated:-

 

The effect of the provisions of section 6 subsection (6)(d) is clearly to retain the fetter previously placed on the Courts by the succesive Military Regimes which ruled this country from 15th January, 1966 to 30th September, 1979, not to question the efficiency of the laws which they promulgated. I am of the opinion that no court can in view of the provisions of section 6(6)(d) of the Constitution have any jurisdiction that the appropriate authority that promulgated a Decree or Edict had no power to do so.

 

Also, see Joseph Mangtup Din V. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt.87) 147 at p. 171.

 

Like the Edict in Uwaifo V. Attorney-General of Bendel State (supra), the Edict and Order in the case on appeal are entitled to the protection accorded to "existing law" by section 6(6)(d) of the Constitution. The Edict and Order were made on 24th March, 1976 and 11th May, 1976 respectively. Both are existing laws as defined by section 274(4)(b) of the Constitution:

 

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

 

There is no dispute that the focal point of the Respondent's suit was centred on the competence of the Military Governor at the material time to make the Edict and the Order. The Respondent contended that both the Edict and the order were inconsistent with the provisions of sections 22 and 31 of the 1963 Constitution. The trial Judge adjudicated and determined the matter. He held that the Edict was inconsistent with the provision of section 31 because it had been added the kind of property and the purpose for which property was permitted by the section to be acquired compulsorily. He also held that the Order was inconsistent with the provisions of sections 22 and the principle of natural justice because the Order had forfeited the Respondent's property without a hearing and without giving the Respondent opportunity to be heard.

 

It is as clear as crystal that by determining the dispute in the suit and nullifying the Edict and the order, the trial court acted contrary to the spirit and intendment of section 6(6)(d) of the Constitution and the decision of this Court in Uwaifo's case. The Court of Appeal erred in law in upholding the decision. I hold that the trial court had no jurisdiction to entertain the suit.

 

Accordingly, I allow the appeal and set aside the judgments of the trial court, including its judgments in the sister cases, and of the Court of Appeal. In their stead, judgment striking out the Plaintiff's/Respondent's claim should be entered.

I endorse the order as to the costs made in the lead judgment of Oputa, J.S.C.

 

 

Judgment delivered by

Obaseki,J.S.C.

 

I have had the advantage of a preview of the judgment just delivered by my learned brother, Oputa, J.S.C., and found that his opinions on all the issues for determination in this appeal accord with mine.

 

The facts have been set out in elaborate detail by my learned brother and I will not repeat them except so much of them as are necessary for this judgment. Indeed, the facts are not in dispute.

 

This matter commenced its journey from the High Court of Lagos State, Ikeja Judicial Division on the 18th day of September, 1981 when the Respondent, as plaintiff, filed a writ of summons against the Defendant in that court. The writ of summons was endorsed with the following five claims made by the Respondent against the Defendant.

 

(1)    A declaration that notwithstanding the provisions of the Determination of Interests in State Lands Order 1976, he is the registered owner of each of the properties comprised in Title No. LO. 7307 registered pursuant to the Registration of Titles Law;

 

(2)    An account of all rents received by the Government of Lagos State and or the second or third Defendant from the land and building comprised in the aforesaid titles and payment over to the plaintiff of the sum due after taking such account;

 

(3)    Mesne profits;

 

(4)    An injunction restraining the 2nd Defendants (or alternatively the third Defendants) as well as all officers, agents or servants of the Government of Lagos State from trespassing or continuing to commit acts of trespass on the said properties or either of the said properties and

 

(5)    An order for the rectification of the Register of Titles by restoring the plaintiff as the registered owner of the land comprised in Title No. LO 7307.

 

The claims were repeated in the amended statement of claim when the plaintiff's pleading ended with the sentence:

 

WHEREUPON the plaintiff claims as per endorsements on the writ of summons.

 

At the close of proceedings, the issues raised were tried by Balogun, J., and in a considered judgment, found in favour of the Respondent granting him;

 

(i)    a declaration that the Determination of Certain Interests in State Lands Order 1976 (LSLN. No.9 of 1976) is unconstitutional, null and void and of no effect whatsoever;

 

(ii)    a declaration that the Determination of Certain Interests in Lands Edict 1976 is unconstitutional, null and void and of no effect whatsoever;

 

(iii)   a declaration that the plaintiff is still the registered owner of each of the properties comprised in Title No. LO 7307 registered pursuant to the Registration of Titles Law

 

(iv)   an order for an account of all rents received by the Government of Lagos State from the properties comprised in the said Title LO 7307 from the 22nd day of September, 1975 up to the date of this judgment and payment over of what is due;

 

(v)    an order of mandatory injunction that the 1st Defendant and the Government of Lagos State shall forthwith yield up possession to the plaintiff of each of the properties comprised in Title No. LO 7307 registered pursuant to the Registration of Titles Law;

 

(vi)   an order of perpetual injunction restraining the 1st Defendant and the Government of Lagos State by themselves on their servants or agents or otherwise howsoever from committing any further acts of trespass on the said landed properties.

 

The claims for mesne profit and the claim for registration were dismissed.

 

The 1st Defendant/appellant appealed to the Court of Appeal and lost. This is clear from the judgment of Akpata, J.C.A. (concurred in by Babalakin and Awogu, JJ.C.A.) which in part of the concluding paragraphs read:

 

Having regard to the conclusions I have reached in the various issues that have arisen in this appeal, the appeal in the main fails and is dismissed. The judgment in favour of the Respondent should however read:

 

(1)    The plaintiff is granted a declaration that notwithstanding the provisions of the Determination of certain Interests in State Lands Edict 1976 and the provisions of the Determination of certain Interest in State Land Order 1976, the plaintiff is the registered owner of each of the properties comprised in Title No. LO 7307, registered pursuant to the Registration of Titles Law:

 

(2)    An account of all rents received by the Government of Lagos State from the land and building comprised in the aforesaid titles should be rendered within 90 days from today and payment over to the Respondent of the sum due after taking such account;

 

(3)    an injunction after the expiration of 90 days from today restraining the Government of Lagos State as well as all officers, agents and servants of the Government from trespassing or continuing to commit acts of trespass on the said properties or either of the said properties.

 

However, the declaration made by the learned trial Judge that:

 

(a)    the Determination of Certain Interests in State Land Order 1976; and

 

(b)   the Determination of Certain Interests in State Lands Edict are unconstitutional, null and void and of no effect is hereby set aside for lack of competence of the learned trial Judge to make such a declaration.

 

Being still aggrieved, the 1st Defendant has brought this appeal to this Court. The plaintiff also cross-appealed.

 

Eleven issues for determination were formulated by the 1st Defendant/appellant but I shall, in this judgment, confine myself to a consideration of issue No.9 which reads:

 

whether or not the Court of Appeal was right when it confirmed the judgment of the trial court in rejecting the defence of the appellant on the lack of jurisdiction of the court on account of the ouster clauses contained in the following enactments;

 

(i)    Section 6(6)(d) of the 1979 Constitution;

 

(ii)    States (Creation and Transitional Provisions) Decree No.17 of 1977;

 

(iii)    Tribunals of Inquiries (Validation etc.) Decree 1977 Decree No.18 of 1977:

 

(iv)    Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970

 

Eight issues or questions for determination were formulated by the plaintiff/Respondent. As the issue of jurisdiction raised by the 1st Defendant/appellant is all pervading it will be right and proper to consider the 1st issue for determination to wit;

 

Was the 1976 validated by the Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977 (hereinafter referred to as "The 1977 Decree")

 

Whenever an issue of jurisdiction is raised in a court, the court should not gloss over the issue and proceed to carry out an exercise into the merits of the case before returning to a consideration of the issue. Lack or absence of jurisdiction is so fundamental to the competence of the court or tribunal that any challenge to the jurisdiction of a court should be treated with all the seriousness it deserves. If a court has no jurisdiction in any matter, it cannot exercise power to adjudicate. If a court has no jurisdiction it cannot exercise the powers granted to it by the Constitution or law to enable it exercise the jurisdiction. If a court lacks jurisdiction to entertain a matter whatever merit the matter may have under other laws cannot be enquired into. Indeed, a court that has no jurisdiction to entertain such a matter has no jurisdiction to enquire into it. The only jurisdiction it can exercise is jurisdiction to hear the case. See Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976)1 All N.L.R. 409 at 421. The issue of jurisdiction having been raised in this appeal, this Court cannot proceed to exercise jurisdiction to enquire into the merit of the case of the Respondent cross appellant until it has exercised its jurisdiction to enquire into its competence and the competence of the Court of Appeal and the High Court to entertain the matter. Lack of jurisdiction can arise from the withdrawal of jurisdiction to entertain the subject matter of the claim or from the withdrawal of judicial power to adjudicate on the claim.

 

What, therefore, are the provisions of (a) sections 6(6)(d) of the 1979 Constitution; (b) the States (Creation and Transitional Provisions) Decree No.17 of 1977; (c) Tribunals of Inquiries (Validation etc.) Decree No.18 of 1977 and (d) Federal Military Government (Supremacy and Enforcement of Powers) Act No, 28 of 1970? The judicial powers of the Federation and of a State are vested in the courts established for the Federation and for a State respectively. This is brought out by subsections (1) and (2) of Section 6 of the 1979 Constitution of the Federal Republic of Nigeria. These two subsections read:

 

(1)    The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation:

 

(2)    the judicial powers of a State shall be vested in the courts to which this section relates being courts established, subject as provided by this Constitution, for a State.

 

The courts to which these subsections relate are set out in subsection (5) section 6 of the 1979 Constitution of the Federal Republic of Nigeria and they include among others:-

 

(1)    The Supreme Court of Nigeria

 

(2)    The Court of Appeal:

 

(3)    The Federal High Court; and

 

(4)    a High Court of a State.

 

The extent of these judicial powers is set out in paragraphs (a) and (b) of subsection (6) of section 6 of the 1979 Constitution. The two paragraphs read:-

 

(6)    The judicial powers vested in accordance with the, foregoing provisions;

 

(a)    shall extend not withstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

 

(b)   shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

 

A total bar on the exercise of judicial powers in respect of certain matters is imposed on the courts by paragraphs (c) and (d) of subsection (6) of the 1979 Constitution. These two paragraphs read;

 

(6) The judicial powers vested in accordance with the foregoing provisions of this section:-

 

(c)    shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; and  shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; and

 

(d)  shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law.

 

The objection to the jurisdiction founded on section 6(6)(d) of the Constitution, therefore, amounted to a plea that the High Court of Lagos State had not and cannot exercise judicial power in respect of the action or proceedings since the issues or questions as to the competence of the Military Governor of Lagos State to promulgate the Determination of Certain Interests in Lands Edict 1976 and the Determination of Certain Interests in State Lands Order 1976 (LSLN No.9 of 1976) were raised. These were the core issues for determination in the action. It is necessary to examine the phrase "existing law." What is the meaning of "existing law"? Existing law as defined in section 274(4)(b) of the 1979 Constitution means:

 

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

 

In other words, it is a law whose operation has not terminated by 30th September, 1979. "Enactment" as used in this section is defined as including not only a statute but also a statutory regulation. In my view, Edicts and Decrees come within the definition of enactment. Indeed, all statutes are properly referred to as enactments although the word "enactment" may be used to describe a particular provision in a statute. [see Words and Phrases Legally Defined vol.2, 2nd edition page 159]

 

The word "instrument" as used in the said section 274(4)(b) includes Orders in council, Letters Patent, judgments, decrees, Orders, Rules, regulations and bye laws.

 

It is significant that section 6(6)(d) of the 1979 constitution expressly set out the type of action and proceedings over which the courts invested with judicial powers shall not exercise those powers. The significance lies in the fact that the choice of limitation was deliberate, total and in depth. The section avoided the use of the term "jurisdiction" as there is a world of difference between ouster of jurisdiction and withdrawal or deprivation or limitation of judicial powers.

 

JURISDICTION has been defined as

 

(1)    "Dignity which a man hath by a power to do justice in a cause of complaint made before him."

        (Termes de la ley)

 

(2)    In its narrow and strict sense, the "Jurisdiction" of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject matter of the issue or (2) to the persons between whom the issues is joined or (3) to the kind of relief sought, or any combination of these factors. In its wider sense, it embraces also the settled practice of the court as to the way in which it will exercise the power to hear and determine the issues which fall within its jurisdiction (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has "jurisdiction" (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances.

 

There are other definitions of jurisdiction which I do not consider germane to the point under consideration.

 

Judicial power on the other hand, is in short, the authority to assume jurisdiction to hear and determine a matter and enforce the decision. It is a governmental power and one of the three powers a sovereign state exercises in Government. A Judge exercises judicial powers when he is deciding suits between parties and when he exercises disciplinary powers which are properly appurtenant to the office of a Judge (Attorney-General of Gambia V. N'jie (1961) A.C. 617). Judicial power therefore, means the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relates to life, liberty or property [Huddard etc. V. Moorehead 8 C.L.R. 330 at 357, per Griffith, C.J.~ and enforce the decision. If a body which has power to give a binding and authoritative decision is able to take action to enforce that decision, but then only then, all the attributes of judicial power are present. [see Rola Co. (Aus.) Pty Ltd. V. Commonwealth (1944) 69 C.L.R. 185 per Lathan, C.J.] When it is said that a court has jurisdiction in any matter, all that is meant is that a court's authority to adjudicate upon the matter is part of the judicial power of the courts depending on whether the court is established by the Constitution for the Federation or the State.

 

If a court is deprived of its judicial powers in respect of certain matters, it is also deprived of its jurisdiction to hear and determine the issues in those matters.

 

The Determination of Certain Interests in Lands Order 1976 (LSLN No.9 of 1976) not having been revoked therefore comes within the definition of existing law and the Determination of Certain Interests in Lands Edict of 1976 No.3 of 1976 also comes within the definition of existing law. The year 1976 comes within the period 15th January, 1966 and 1st October, 1979, covered by section 6(6)(d) of the 1979 Constitution. It is common ground that the Edict and the order have not been repealed or revoked and so became existing law by virtue of section 274(1)(b) of the 1979 Constitution on the 1st of October, 1979. Being existing laws, they are protected by the provisions of section 6(6)(d) of the 1979 from being challenged on grounds of incompetence of the Military Governor to make them, See Uwaifo V. Attorney-General of Bendel State (1983) 4 N.C.L.R. 1; (1982) 7 S.C. 124; Wilson V. Attorney-General of Bendel State (1985)1 N.W.L.R. (Part 4); Joseph Mangtup Din. V. Attorney-General of the Federation (1988) 4 N.W.L.R. (Part 87) 147. I therefore find that the facts of this case are caught by the provisions of that section and are on all fours with the facts in Uwaifo V. Attorney-General of Bendel State (supra). In other words, the High Court, the Court of Appeal and this court are precluded from entertaining the action filed by the plaintiff/Respondent notwithstanding the merit of his case without the ouster of jurisdiction. The three courts are courts established by the 1979 Constitution and having been deprived of judicial powers in respect of this matter the High Court, the Court of Appeal and the Supreme Court have no power to entertain the action or inquire into the issues raised. The High Court was in error to have entertained the action and the Court of Appeal also fell into serious error of law to have affirmed the decision of the High Court.

 

I now consider the States (Creation and Transitional Provisions) Decree 1977 No.17 of 1977. The relevant section that contains the ouster clauses for the purpose of this judgment is section 2(1) It reads:-

 

2    (1)       Notwithstanding anything to the contrary in this Constitution (Basic Provisions) Decree No.32 of 1975 or any other enactment

 

(a) All Edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April, 1976 on behalf of or in the name of the State created under that Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State; and  All Edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April, 1976 on behalf of or in the name of the State created under that Decree by the Military Governor, Executive council, Commissioner or public officer of a former State; and

 

(b) all contracts and all executive and judicial acts, including acts pertaining to the appointment, transfer and the exercise of disciplinary control over public officers of a State created under the principal Decree as aforesaid entered into or done by the appropriate authority of the former State between the commencement of the principal Decree and 30th April, 1976,  all contracts and all executive and judicial acts, including acts pertaining to the appointment, transfer and the exercise of disciplinary control over public officers of a State created under the principal Decree as aforesaid entered into or done by the appropriate authority of the former State between the commencement of the principal Decree and 30th April, 1976, shall be deemed to have been validly made or done and shall have effect as if they had been duly made or done by the Military Governor, Executive Council, commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contracts, executive or judicial act, or as the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid, shall be inquired into in any court of law.

 

Paragraphs 3 and 4 of the amended statement of claim raised the question of the validity and constitutionality of the Determination of Certain Interests in Lands Edict 1976 enacted by the then Military Governor of Lagos State. Paragraph 4 of the said amended statement of claim in part reads:

 

The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of section 22(1) and 31(1) of the Constitution of the Federation 1963.

 

Paragraph 9 of the amended statement of claim raised the issue of the validity and legality of the 1976 Order in the following terms:

 

The plaintiff will contend at the trial of this action that the 1976 order was and remains illegal and null and void because the law under which it was made was unconstitutional and void.

 

 

When an enactment is alleged to be illegal, unconstitutional, null and void, it means "that the authority or person who made the enactment had not the competence or legal capacity or constitutional legislative power to make the enactment.

 

The pleadings filed by the parties having raised the issue of the validity of the 1976 Edict and the Order (L.S.L.N. No.9 of 1976) brings the action within the ouster clause of the Decree. The question raised by this action having been caught by the provision of section 2 of the Decree, the action cannot be entertained by the High Court or any court of law in Nigeria.

 

The next Decree for consideration cited as ousting the jurisdiction of the court is Decree No.18 of 1977 titled Tribunals of Inquiries (Validation etc.) Decree 1977. This Decree did not only create a total bar to any inquiry into the validity of the Edict and subsidiary legislation, i.e. the Order L.S.L.N. No.9 of 1976 but also nullifies any action or proceeding instituted. Subsections (1) and (2) of section 2 of the Decree are relevant for apart from validating the Edicts, they bar the courts from enquiring into the question whether the Edict or subsidiary instrument was validly made. They read:

 

Any Edict or subsidiary instrument made by the appropriate authority [i.e. the Military Governor 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; (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 a state shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor: 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, subsidiary instrument or act or thing the action shall be void.

 

The courts cannot and should not shut their eyes to the provisions of the ouster clauses in these Decrees.

 

Finally, the objection to jurisdiction was also founded on the ouster of jurisdiction created by the provisions of Decree No.28 of 1970 titled "The Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970:' This Decree was in force when the cause of action arose and apart from being a legislative judgment on matters raising the issue of the validity of any Decree or any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the issue of the competence of any of the Governments of the Federation to make the same, it ousted the jurisdiction of the courts of law to entertain any action raising such questions. That Decree made the recitals in the preamble to the Decree part of the Decree. The two recitals in the preamble which are of great relevance in this judgment read:

 

AND WHEREAS by section 6 of the said Constitution (Suspension and Modification) Decree 1966, no question as to the validity of any Decree or any Edict (in so far as by section 3(4) thereof the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria AND WHEREAS by Schedule 2 of the said Constitution (Suspension and Modification) Decree 1966, the provisions of a Decree shall prevail over those of the unsuspended provisions of the said Constitution of 1963.

 

NOW, THEREFORE, THE FEDERAL MILITARY GOVERNMENT HEREBY decrees as follows:-

 

1-(1) The preamble hereto is hereby affirmed and declared as forming part of this Decree.

 

Then follows the declaration (nullifying past and future judgments) which reads:

 

(2) It is hereby declared also that

 

(a)    for the efficacy and stability of the government of the Federation; and

 

(b)   with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace order and good government of the Federation, any decision, whether made before or after the commencement of this Decree by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any state which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever from the date of the making thereof.

 

Although the Decree was repealed in 1979, the defence it provided still remains available. The appellant did not omit to raise the issue of lack of jurisdiction and competence of the court to try the issues in his pleading in his statement of defence.

 

Para graph 13 of the further amended statement of defence in sub-paragraphs (i), (ii), (iv) and (v) thereof expressly raised the plea. These paragraphs read:

 

The Defendant will contend at the trial of this case that:

 

(i)     The Determination of Certain Interests in Lands Edict No.3 of 1976 and the instrument titled ''Determination of certain Interests in State Lands Order 1976" made thereunder by the Military Governor of Lagos State are Edict and subsidiary legislation within the meaning of section 2 of the States (Creation and Transitional Provisions) Act No.17 of 1977.

 

(ii)    That the Committee appointed by the Military Governor of Lagos State referred to in paragraph 4 hereof is a tribunal within the provisions of Tribunals of Inquiries (Validation etc.) Act No.18 of 1977.

 

(iii)  That under and by virtue of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970, this action as instituted by the plaintiff was not maintainable against the Defendants before 30th day of September, 1979 when sections 22 and 31 of the Constitution of the Federation 1963 were in operation;

 

(iv)  That since the 1st day of October, 1979 the provisions of the constitution of the Federal Republic of Nigeria 1963 are no longer applicable in Nigeria under section 1 of the Constitution of the Federal Republic of Nigeria 1979;

 

(v)  That this action as instituted by the plaintiff being an action or proceedings relating to or for the determination of an issue or question as to the competence of the Military Governor of Lagos State to make or promulgate the Determination of Certain Interests in Land Edict 1976 and the order made thereunder is not maintainable in any court under section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.

 

Having regard to the facts pleaded. the cause of action arose in 1976 when the interests of the plaintiff-Respondent-cross appellant in the land and buildings the subject matter of the action [filed in the High Court now on appeal after the determination of the appeal to the Court of Appeal] was determined by the Military Governor of Lagos State. The determination was made by an Instrument, the Determination of Certain Interests in Lands Order 1976 (L.S.L.N. No.9 of 1976) with effect from the 12th September, 1975. Paragraph I of the said order reads:

 

The interests in State Lands specified in the Schedule hereto are hereby determined.

 

The Respondent's name appeared as No. 29 in the Schedule and the Registered title is given as No. L. 0. 7307. The Order was made by the Military Governor in exercise of the powers conferred on him by section l of the Determination of Certain Interests in Lands Edict 1976. It is therefore a subsidiary legislation and a statutory instrument. It is an existing law as already observed.

 

If therefore the interests of the plaintiff/Respondent/cross appellant in the land and buildings had been determined with effect from the 12th day of September, 1975 by the said order published as L.S.L.N. No.9 of 1976' the declarations sought in paragraph I of the indorsement of claim in the writ of summons is a direct challenge to the validity of the order and the competence of the Military Governor to make it. No action was filed in 1976 or at any time thereafter before 1st October. 1979 when the 1979 Constitution came into force.

 

The judicial power of the High Court which the Respondent invoked by his claim does not as already explained. extend to the action filed as the issues raised are expressly excluded section 6(6)(d) of the 1979 Constitution from determination by exercise of the judicial powers vested in the High Court, the Court of Appeal and the Supreme Court. The High Court and the Court of Appeal were therefore in error to have purported to decide the question in exercise of their judicial powers. The two courts had no judicial powers to exercise and therefore no jurisdiction to decide the question and entertain the action. The case of Uwaifo V. Attorney-General of Bendel State (1983) 4 N.C.L.R. 1; (1982)7 S.C. 124 fully supports the point made above. That case was the first case in which the question of the application of section 6(6)(d) of the 1979 Constitution was examined by this Court and settled the question of the competence of the courts to exercise judicial powers in any action that raises the validity of a Decree, Edict or subsidiary instrument that are existing laws.

 

It is clear from the above consideration that the High Court had no jurisdiction to entertain the action and the Court of Appeal was in error to have also entertained the questions and to have affirmed the decision of the High Court.

 

I will, for the above reasons and the more detailed reasons set out in the judgment of my learned brother, Oputa, J.S.C., allow the appeal. The appeal is hereby allowed and the cross appeal dismissed. The decision of the Court of Appeal and the decision of the High Court together with the orders as to costs are hereby set aside. In their stead, an order striking out the action for lack of jurisdiction is hereby entered.

 

I adopt the order for costs made by my learned brother, Oputa, J.S.C., i.e. the Respondent shall pay the appellant

 

N500.00 costs in this Court

N300.00 costs in the Court of Appeal

N200.00 costs in the High Court

 

This being a test case, the sister cases are bound by the decision in this matter.

 

 

Judgment delivered by

Eso. J.S.C.

 

In the High Court of Justice Lagos State, L.J. Dosumnu took out a writ against the Defendants, the appellant in this Court and two other Defendants, the Lagos State Development and Property Corporation and the Ibito Properties Ltd. claiming that an Order made by the Defendants in 1976 published as L.S.L.N. 1976 No.19 that is the Determination of Certain Interests in Lands Edict 1976 No.3 was null and void.

 

It is necessary to understand the background to the action taken by the plaintiff. In 1963, the Government of the Federation of Nigeria gave a lease of Plot No.134 Victoria Island to the plaintiff. In 1974 the Lagos State Government made a lease of another plot that is No.272 on Victoria Island to the same plaintiff. In South-West Ikoyi, the plaintiff was also lessee of yet another plot registered as No.571 South-West Ikoyi.

 

Up till July 1975, there was no problem but in July of that year, there was a change of Government and the Military Government that took over evolved a policy of one man not more than one plot on Victoria Island and two plots in South West Ikoyi. The plaintiff was obviously caught by this policy.

 

It was not a mere declaration of one man plot slogan the Military Government of Lagos State in pursuance of that policy set up a committee of three to look into the details and compile a list of those whose ~ownership~' of land transgressed the policy.

 

On 12th September 1975, the Government determined bv Notice in the Newspapers the interest of those who exceeded the declared policy. That was how the plaintiff's plot No.272 registered as L.O. 7307 was determined by L.S.L.N. No.9 of 1976 and that was what evoked the present action.

 

The determination was not without compensation as sections 6 and 7 of the Edict which was the enabling provision for the Order aforesaid that is Determination of Certain Interests in Lands Edict 1976. Both the Edict and the Order have the same commencement date - 12th September 1975.

 

The plaintiff, as I have earlier said. filed an action to declare this Edict a nullity but he waited until 17th September 1981 before he filed the action claiming:

 

(1)    a declaration that notwithstanding the provisions of Determination of Interests in State Lands Order 1976 he is the registered owner of each of the properties comprised in Title No. L.O. 7307 registered pursuant to the Registration of Titles Law;

 

(2)    an account of all rents received by the Government of Lagos State and or any of its agencies from the land building comprised in the aforesaid titles and payment over to the plaintiff of the sum due after taking such account;

 

(3)    mesne profits:

 

(4)    an injunction restraining the Government of Lagos State and or any of its agencies as well as all officers agents or servants of the said Government of Lagos State from trespassing or continuing to commit acts of trespass on the said properties or either of the said properties. and

 

(5)    An order for the rectification of the Register of Titles by restoring the plaintiff as the registered owner of the land comprised in Title No. L.O. 7303.

 

Now what is the competence of the Military Government to make this Edict? What is the jurisdiction of the court in regard thereto? These were the questions before the court. The 1st Defendant answered these questions in his amended Statement of Defence by relying upon

 

(1)    Act No. 17of 1977-

 

The State Creation and Transitional Provisions Act.

 

(2)    Act No. 18 of 1977-

 

Tribunals of Inquiries Validation Act No.18 of 1977.

 

(3)    The Constitution (Basic Provisions) Act of 1977

 

(4)    The Constitution of 1979 especially section 6(6)(d) thereof.

 

It is only then, that if the court has jurisdiction, that the other issues as to the validity of the Edict, the validity of the Order, could be rightly raised and disposed of by the court.

 

It is futile to set down issues, deliberate on evidence led, resolve points of law raised, if the court that is seised of the matter is devoid of jurisdiction. The sub-stratum of a court is no doubt - jurisdiction. Without it the "labourers" therein, that is both litigants, and counsel on the one hand and the Judge on the other hand, labour in vain. And so, the Defendants, even at the trial court, by way of motion, challenged the jurisdiction of the court.

 

That was in 1986. The trial court however preferred to take evidence before the issue of jurisdiction could be determined.

 

I must say that there are occasions when it must be necessary to lead some evidence before it is clear enough to determine matters of jurisdiction but if it is a matter of ouster of jurisdiction by statute, it is indeed a question of construction of the statute. However, in the instant case, the core of the matter must be in whether the jurisdiction of the court has been ousted by Statute, and if so, what statute? for ordinarily the action which lay in declaration and injunction should be within the competence of a court.

 

In the High Court after hearing arguments, the learned trial Judge declared that he had jurisdiction under section 236 of the Constitution of 1979 which is the jurisdiction section for the High Court in the Constitution. After assuming jurisdiction, he declared the Edict of 1976 and also the Order of 1976 aforesaid, null and void and of no effect.

 

But how did he arrive at the conclusion that he had jurisdiction? Let us look at the pleadings on which the learned Judge predicated his legal enquiry.

 

The Statement of Claim provides inter alia

 

2.     Sometime in 1975 the Lagos State Government published in the National newspapers and subsequently in the Lagos State Gazette a statement to the effect that the disputed plots have been forfeited to the Government of Lagos State. The said statement was dated 12th September 1975 and was issued by the Military Governor.

 

3.     By an Edict said to have been made on 24th day of March, 1976, the then Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict 1976 and published to make its operation retrospective. The said Edict is hereafter referred to as "the 1976 Edict.

 

4.      Section 1 of the 1976 Edict provides that if the Military Governor is satisfied that there has been any impropriety in the acquisition of any interest in any State Land by any person or that it is otherwise in the public interest so to do, he may, at any time up to 30.6.76 determine the interest in State Land of any such person by order published in the Gazette. The plaintiff will contend at the trial of this action that the provisions so enacted are unconstitutional and null and void because it is inconsistent with the provisions of Section 22(1) and 31(1) of the Constitution of the Federation, 1963.

 

5.       Prior to the publication pleaded in paragraph 2 of this Statement of Claim the Military Governor of Lagos State did not institute any tribunal or inquiry to ascertain how the plaintiff acquired his property.

 

6.     If, which is denied, any inquiry was held, the plaintiff will contend that it was a sham of an inquiry and not a genuine one.

 

7.     If, contrary to the contention of the plaintiff, the court should find that there was an inquiry, then the plaintiff states that such inquiry was illegal unconstitutional and amounts to a nullity because the plaintiff was not given the opportunity of being heard contrary to the Rules of Natural Justice and to the provisions of Section 22(1) of the Constitution of the Federation, 1963.

 

8.     By an Order said to have been made on the 11th day of May 1976 in exercise of the powers conferred on him by section 1 of the 1976 Edict, the Military Governor of Lagos State, inter alia, purported to determine the interest of the plaintiff in the disputed plot. The said Order (hereafter referred to as "the 1976 Order") is published as L.S.L.N. No.9 of 1976 and cited as the Determination of Certain Interests in Lands Edict 1976 (No.3 of 1976).

 

9.    The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal and null and void because the law under which it was made was unconstitutional, the plaintiff states that there was absolutely no evidence available to the Military Governor capable of satisfying a reasonable tribunal, properly directed that there had been any impropriety in the acquisition by the plaintiff of his rights, title and interest in the disputed plots."

 

The Statement of Defence states positively that -

 

1.     the plaintiff held more than one plot of State land on Victoria Island and one plot on South-West Ikoyi, thus exceeding the one-man-one plot on Victoria Island policy.

 

2.     the Military Governor of Lagos State in pursuance of the above-stated Government policy promulgated Edict No.3 of 1976 and the Registrar of Titles made the necessary changes following the forfeiture.

 

3.     he was protected by section 2 of the States Creation and Transitional Provisions Act 1977 No.17.

 

4.     before 1st October 1979, sections 22 and 31 of the 1963 Constitution made the action non maintainable.

 

5.     that by section 6(6)(d) of the 1979 Constitution, from October 1, 1979, the action is not maintainable.

 

6.     that the Military Governor who determined plaintiff's interest in the State Land is a public officer and the action against him has become statute barred.

 

Let us now examine the Statutes relied upon by the Defendant.

 

States Creation and Transitional Provisions Decree 1976 No.12 when read with No.17 of 1977 provides -

 

1.     There shall on the commencement of this Decree be created States to be known by the names in Column 1 of the Schedule to this Decree the respective areas of which shall be those provinces, divisions or districts named in Column 2 of that Schedule and the capitals of which shall be those respectively named in Column 3 of that Schedule.

        .................................................................................

 

2    (1)    Notwithstanding anything to the contrary in the Constitution (Basic Provisions) Decree 1975 or any other enactment -

 

(a)    all edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April, 1976 on behalf of or in the name of any State created under that Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State; and

 

(b)    all contracts and all executive and judicial acts, including acts pertaining to the appointment, transfer and the exercise of disciplinary control over public officers of a State created under the principal Decree as aforesaid entered into or done by the appropriate authority of the former State between the commencement of the principal Decree and 30th April, 1976.

 

shall be deemed to have been validly made or done and shall have effect as if they had been duly made or done by the Military Governor, Executive Council, Commissioner or public officer of the appropriate State created under the principal Decree; and no question as to the validity of any such Edict, subsidiary instrument, contract, executive or judicial act, or as to the competence of the appropriate authority or public officer to exercise the power concerned or in respect of the act done within the period aforesaid, shall be inquired into by any court of law.

 

(2)     The reference in subsection (1) above to the appropriate authority is a reference to the Military Governor of a former State or any person or authority acting under his direction, or any commission or anybody, whether corporate or unincorporate, or any public or judicial officer empowered by law to exercise the power concerned.

 

There is also the Tribunals of Inquiries (Validation etc.) Decree 1977 (No. 18. It provides -

 

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) -

 

(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 of 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 of 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;

 

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.

 

3(1)    For the purposes of section 1 or 2 of this Decree it shall be immaterial -

 

(a)    that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power, or that any act or thing done was expressed as having been done in exercise of any power conferred under any particular law;

 

(c)   that the law or power under which an act or thing was done was not stated.

 

(2)    Without prejudice to the foregoing provisions of this Decree, Chapter III of the Constitution of the Federation is hereby suspended for the purposes of this Decree, and no question whether any provision thereof has been or is being or would be done in pursuance of this Decree shall be inquired into in any court of law; and accordingly sections 115 and 117(2)(d) of that Constitution shall not apply in relation to any such question.

 

4      (1)         In this Decree -

                  "appropriate authority" means the Military Governor of a State and any person or authority acting under the direction of the Military Governor of the State.

 

(2)    The reference in this Decree -

 

(a)    to a State shall be construed as including a reference to a State created under the States (Creation and Transitional Provisions) Decree 1967; and

 

(b)   to a tribunal of inquiry shall be construed as including a reference to any committee, commission, panel or any other person or body however described or constituted, appointed to inquire into any matter to which section 1 of this Decree relates.

 

These were the legislation which the learned Judge examined before coming to a decision that he had jurisdiction.

 

The Defendant appealed to the Court of Appeal against the decision. That Court as per Akpata, J.C.A., with whom Awogu and Babalakin, JJ.C.A., concurred held -

 

It is obvious that this Decree (Decree No.17 of 1977) was necessary to bring sanity to an otherwise confused state of affairs following the creation of 19 States in the Federation on 3rd February, 1976. For instance, the former Western State was broken into three States, Oyo, Ondo and Ogun. By this Decree, any Edict enacted or anything done by the Governor of Oyo State between 3rd February, 1976 and 30th April, 1976, even though Ogun and Ondo and Ogun. By this Decree, any Edict enacted or anything done by the Governor of Oyo State between 3rd February, 1976 and 30th April, 1976, even though Ogun and Ondo had been carved out from the Western State on 3/2/76, would be applicable to Ogun and Ondo States. As Chief Williams rightly pointed out this Decree was not applicable to States such as Bendel and Lagos States from which no state was carved out.

 

Therefore, the provision in Decree No.17 of 1977 that "no question as to the validity of any such Edict, shall be inquired into by any Court of law" only relates to any Edict enacted between 3/2/76 and 30/4/76 by the Governor of another State which is applicable to the new State or States. The 1976 Edict is not "such Edict" and the 1976 Order is also not protected by the Decree.

 

The Court dwelt on section 6(6)(d) of the 1979 Constitution. The learned Justice held -

 

As Chief Williams rightly submitted, there. is a distinction between en asking the court to pronounce on the invalidity of "existing law" which Section 6(6) does not allow, and asking the court to pronounce that an "existing law" is inoperative on the ground of its inconsistency with a Decree or an enactment which had the force of law at the time when the "existing law" came into being. As Idigbe, J.S.C., clearly observed in Uwaifo V. Attorney-General of Bendel State (1984)4 N.C.L.R. 1 at page 35:

 

Clearly, by virtue of sections 6(6)(a) and 4(8) of the Constitution aforesaid, the courts have jurisdiction to determine issues or questions as to whether any law, including those unrepealed laws which were made between 15th January 1966, and 1st October 1979 (or the provisions thereof) is consistent with the provisions of the 1979 Constitution for the purpose of giving effect to it under the existing Constitution; and for this purpose, but to this extent only, the courts can declare such a law or portions thereof invalid. This, however, is a different thing from saying that courts have a general power to pronounce on the validity of such laws which were made between 15th January, 1966, and 1st October 1979 on the ground that there never was any authority, legal qualification, or legal jurisdiction or power to make such laws; and thus indirectly rendering invalid whatever action that must have been taken under the provisions of such law.

 

We should also examine section 274(3) of the Constitution: It provides -

 

3.     Nothing in this constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say -

 

(a)    any other existing law;

 

(b)   any provision of this Constitution.

 

Now, by virtue of subsection (1) of the section aforesaid the court has power to give effect to an existing law. But it is clear from subsection (3) that in giving effect to that law, the court has power to declare any such existing law, invalid once it is inconsistent with the provision of any other law. In all however, the Court of Appeal did not agree with the Defendant.

 

The Court of Appeal dismissed the Defendant's appeal hence his appeal to this Court.

 

I intend to deal only with the issue of jurisdiction in this judgment. Indeed that is the only point I intend to comment upon in my own judgment. I have had the privilege of a preview in draft of the judgment of my learned brother, Oputa, J.S.C. I am in complete agreement with his conclusion. I also adopt his setting out of the arguments of learned counsel before this court.

 

Whatever I add here is merely by way of emphasis in this my concurring judgment.

 

The decision of the Court of Appeal was not limited to just assuming jurisdiction. After the court had assumed jurisdiction, it proceeded, as would normally be expected of it after such assumption to deal with the validity of the Edict of 1976 even as it has been validated by Decree No.18 of 1977 that is the Tribunals of Inquiries (Validation etc.) Decree 1977 No.18 which Decree had retrospective effect to 29th July, 1975 the date the Military Government that made the policy of one-man-one-plot came into power.

 

The Decree No.18 of 1977 validated -

 

any act or thing done by the appropriate authority in respect of the implementation of the report of such inquiry or tribunal

 

In his judgment Akpata, J.C.A., had declared null and void the Edict of 1976 to the extent of its inconsistency with the 1963 Constitution. In particular the learned Justice of the Court of A p peal relied upon section 31(1)(a) of the 1963 Constitution and section 31(2)(b) of that Constitution.

 

Though I do not intend to travel as far as the validity vel non of the Edict it is necessary to mention that Decree No.18 of 1977 section 3(2) - Tribunals of Inquiries (Validation etc.) Decree had suspended the Fundamental Rights provision of the 1963 Constitution for, it is these provisions that harbour section 31 of the Constitution which the Court of Appeal relied upon with some flourish.

 

Now to go back to jurisdiction of the court. The gravamen of this case is whether the Military Governor was competent to make the Edict of 1976 and the Order made thereunder. By virtue of Decree No.17 of 1977 section 2(1), no question, as to the validity of the Edict No.12 of 1976 could be inquired into in any court of law. As my learned brother, Oputa, J.S.C., has held in his judgment, this Decree applied to the Lagos State and the jurisdiction of the Lagos State High Court has been ousted by section 2(1) thereof.

 

Lagos State was first created by the States (Creation and Transitional Provisions) Decree 1967. This Decree was repealed by the States (Creation and Transitional Provisions) Decree No.12 of 1976. That Decree created nineteen States which include Lagos State.

 

Though Decree No. 17 of 1977 ousted the jurisdiction of the court to determine the validity of the Edict, the Order made under the Edict was made outside the 30th April, 1976 limit provided for by section 2(1)(a) of the 1977

Decree which provides -

 

all Edicts and subsidiary legislation made at any time between the commencement of the principal Decree and 30th April, 1976 on behalf of or in the name of any State created under that Decree by the Military Governor, Executive Council, Commissioner or public officer of a former State shall be deemed to have been validly made.

 

The Order is a subsidiary legislation caught by the provisions supra. However, Decree No.18 of 1977 which though was made on 8th March 1977 had retrospective effect from 29th July, 1975.

 

Section 1 of the Decree provides that where from 29th July 1975 to 30th September, 1977 (this encompasses May 1976) the Military Governor of a State had instituted any tribunal of inquiry however described or instituted (this will include the Folami Committee) to inquire into any matter whatsoever in the State (this includes the violation of the one-man- one-plot-policy) the tribunal of inquiry should be deemed to have been validly instituted or constituted notwithstanding anything to the contrary in any enactment, law or rule of law. I think this is wide enough to validate the action of the Military Governor.

 

By sections 1(2) and 2(2) of the Decree no court of law has jurisdiction to determine the validity of the Committee (the Folami Committee) the Edict or the Order which in effect superceded the 1963 Constitution.

 

As from October 11979 however, one could only repeat the valid words of Uwais, J.S.C., in Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C. 124 -

 

no court can in view of the provisions of section 6(6)(d) of the Constitution (1979) have any jurisdiction to declare that the appropriate authority that [ha~ promulgated a Decree or Edict had no power to do so.

 

I will also allow the appeal and set aside the judgment of the trial court and of the Court of Appeal.

 

I make an order dismissing the plaintiff's claim in its entirety.

 

I abide by the order as to Costs made in the judgment of my learned brother, Oputa, J.S.C.

 

 

Judgment delivered by

Nnamani. J.S.C.

 

I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C., and I entirely agree with his reasoning and conclusions.

 

This concurring opinion is only necessitated by the importance of the issues raised before this Court. I shall limit myself to the question of jurisdiction which was raised by the appellant quite early by way of motion before the High Court. Regrettably, such a fundamental issue could not be taken at once by the learned trial Judge. On this matter he made an order

 

pursuant to Order 30 Rule 2 of the said Rules of Court, directing that evidence shall be led on the matters pleaded by the parties before trial of any question of law which arises on the pleadings as to whether or not this Court has jurisdiction to adjudicate and determine the plaintiff's action.

 

However, at the end of hearing in the case he held on the issue of jurisdiction as follows:-

 

The main conclusions I have arrived at in this case are that (1) this court has jurisdiction under Section 236 of the Constitution of the Federal Republic of Nigeria 1979, as amended, to adjudicate upon and determining the plaintiff's action herein and (b) that the Impugned Edict of 1976 and the Impugned Order of 1976 are unconstitutional null and void and of no effect.

 

An appeal to the Court of Appeal was unsuccessful hence the appeal to this Court.

 

Perhaps I should now mention that for the comment I am making here, I rely on the facts of this case as set down in the judgment of Oputa, J.S.C.

 

Both the appellant herein and the Respondent identified this issue of  jurisdiction in their briefs of argument as the crucial matter for determination. Question 1 of the questions for determination as set down by the Respondent was,

 

Was the 1976 Edict validated by the Tribunal of Inquiries (Validation etc.) Decree No.18 of 1977 (herein after referred to as "the 1977 Decree")

 

In its own brief of argument, the Respondent mentioned the issues for determination to include issue No.9 which read as follows:-

 

(9)    Whether or not the Court of Appeal was right when it confirmed the judgment of the trial court rejecting the defence of the appellant on the lack of jurisdiction of the court on account of the ouster clauses contained in the following enactments.

 

(i)      Section 6(6)(d) of the 1979 Constitution.

 

(ii)     States (Creation and Transitional Provisions) Decree No.17 of 1977.

 

(iii)    Tribunal of Inquiries (Validation etc.) Decree No.18 of 1977.

 

(iv)    Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970."

 

Before commenting on these issues, it would be useful to set down the pleadings of the parties as they relate to the matter of jurisdiction. In his Statement of Claim paragraphs 3, 4, 5, 8 and 9 the plaintiff averred as follows:-

 

3.     By an Edict said to have been made on 24th day of March, 1976 the then Military Governor of Lagos State enacted the Determination of Certain Interests in Lands Edict 1976 (and established?) to make its operation retrospective. The said Edict is hereafter referred to as "the 1976 Edict".

 

4.     Section 1 of the 1976 Edict provides that if the Military Governor is satisfied that there has been any impropriety in the acquisition of any interest in any State land by any person or that it is otherwise in the public interest so to do, he may, at any time up to 30/6/76 determine the interest in Land of any such person by order published in the Gazette. The Plaintiff will contend at the trial of this action that the provisions as enacted are unconstitutional and null and void because it is inconsistent with the provisions of Section 22(1) and 31(1) of the constitution of the Federation, 1963.

 

5.     Prior to the publication pleaded in paragraph 21 of this Statement of Claim the Military Governor of Lagos State did not institute any Tribunal of Inquiry to ascertain how this plaintiff acquired his property.

 

8.     By an order said to have been made on the 11th day of May, 1976 in exercise of the powers conferred on him by Section 1 of the 1976 Edict, the Military Governor of Lagos State, inter alia, purported to determine the interest of the plaintiff in the disputed plot. The said Order (hereafter referred to as "the 1976 order") is published as L.S.L.N. No.9 of 1976 and cited as the Determination of Certain Interests in Lands Order 1976 (No.3 of 1976).

 

9.     The plaintiff will contend, at the trial of this action, that the 1976 Order was and remains illegal and null and void because the law under which it was made was unconstitutional and void.

 

In its amended Statement of Defence paragraphs 4, 6, 8,11, and 13 the appellant averred as follows: -

 

4.     The Defendants~ deny paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Claim and aver, in answer thereto that the Military Administration which came into power in July 1975 decided, in the public interest to adopt a policy that a man should not own more than one plot of State Land at Victoria Island and not more than two plots in South West Ikoyi.

 

6.     Pursuant to the said policy, the then Military Governor of Lagos State on the 11th day of August 1975 instituted a tribunal of inquiry by way of a committee to inquire into the issue of Land holdings of State Land on Victoria Island and South West Ikoyi and prepare and submit to him an analytical list of the names of persons holding land in Victoria Island and or South West Ikoyi.

 

8.     The Committee submitted a report to the Military Governor of Lagos State made up of the following:

 

11.     In implementation of the report of the Committee, the Military Governor of Lagos State on the 24th day of March 1976 promulgated or made the Determination of Certain Interests in Lands Edict No.3 of 1976 determining the interest of the plaintiff in the State Land comprised in Title No. L.O. 73087.

 

13.     The Defendants will contend at the trial of this case that:

 

(i)     The Determination of Certain Interests in Lands Edict No.3 of 1976 and the instruments titled ''Determination of certain Interests in State Lands Order 19" made thereunder by the Military Governor of Lagos State are Edict and Subsidiary legislation respectively within the meaning of Section 2 of the States (Creation and Transitional Provisions) Act No.17 of 1977.

 

(iii)    That under and by virtue of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Act No.28 of 1970, this action as instituted by the plaintiff was not maintainable against the Defendants before the 30th day of September, 1979 when Sections 22 and 31 of the Constitution of the Federation 1963 were in operation.

 

(v)     That this action as instituted by the plaintiff being an action or proceedings relating to or for determination of an issue of question as to the competence of the Military Governor of Lagos State to make or promulgate the Determination of Certain Interests in Land Edict, 1976 and the order made thereunder is not maintainable in any court under Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.

 

(vii) That the Determination of Certain Interests in Land Edict No.3 of 1976 was validly made.

 

(viii) That the Determination of the plaintiff's interest in the property comprised in Title No. L.O. 7307 was validly made.

 

(ix)   That this action cannot be based on the contravention of any part of Chapter III of the Constitution of the Federal Republic of Nigeria 1963."

It is pertinent to mention that Section 1 of the Determination of Interests in State Lands Order 1976 i.e. No.9 of 1976 provided as follows:-

 

The interests in State Lands specified in the schedule hereto are hereby determined.

 

The plaintiffs plot 272 appeared in the Schedule. This is necessary in view of the submissions in relation to Section 3 of that Order, Section 13 of Edict No. 3 of 1976 and Exhibit p.2.

 

To return more specifically to jurisdiction, it is convenient to start with the Committee allegedly set up by the Military Governor. The Defendants pleaded and led evidence that the Military Governor of Lagos State on 11th August, 1975 constituted a Committee made up of Taiwo Folami (D.W.1), D. 0. Ijeru and Mr. Ashorobi to, among other things, prepare a comprehensive list of all plots in Victoria Island, South East and South West Ikoyi. A full report was submitted to the Military Governor of Lagos State. As regards this Committee, the learned trial Judge rejected the testimony of the D.W.I. in so far as he sought to establish the setting up of a Tribunal or Committee. In holding that there was no Committee, the learned trial Judge referred to the absence of any Instrument setting up such Committee and delimiting its terms of reference.

 

The Court of Appeal, as per Akpata, J C. A., applying Section 4(2)(b) of the Tribunals or Inquiries (Validation etc) Decree No.18 of 1977, agreed that the Committee comprising of D.W.I. and two others mentioned can pass for a tribunal but the learned Justice continued.

 

The truth, however, is that having regard to the time of the setting up of the Committee, which was in August 1975, it cannot be regarded as a tribunal of Inquiry set up by virtue of the 1976 Edict, the commencement date of which was 12 September, 1975. Therefore since the 1976 Edict was (not?) based on "the Report of any tribunal of Inquiry set up pursuant to it and to which section 1 of this Decree applies" it is not validated by the Tribunals or Inquiries (Validation etc.) Decree 1977. Even if the Edict and order can be said to have validated (sic), they are null and void to the extent that they are inconsistent with the 1963 Constitution or any Decree, and the court can so declare.

 

With respect to both the learned trial Judge and the learned Justices of the Court of Appeal there was a misconception about the nature of the Committee or Tribunal envisaged by Decree No.18 of 1977. Section 4(2)(b) of the Decree defines it as a Committee however described or constituted appointed to inquire into anything to which Section 1 of the Decree relates. Section 1 of the Decree empowers the appropriate authority (defined as the Military Governor) between 29 July 1975 and 30th September, 1977 to institute any tribunal or inquiry (however described or constituted)

 

(a)    .............. to inquire into any matter whatsoever in the State. Such a 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."

 

Contrary therefore to the views of the learned trial Judge, there can be no question of Terms of Reference, instrument setting up the Committee etc. Also the Committee did not need to be set up pursuant to the 1976 Edict. It could only be set up pursuant to section 1 of Decree No.18 of 1977 for validation of its proceeding to follow. In this case the Edict was the result of the inquiry. The Court of Appeal was, therefore, in serious error when it held that the 1976 Edict was not based on the Report of the tribunal of inquiry setup pursuant to it and to which section 1 of the Decree applies.

 

This Committee was set up on 11th August 1975 after the commencement on 29th July, 1975, of Decree No.18 of 1977. The Committee is therefore a Committee or Tribunal within the meaning of Section 1 of the Decree.

 

Once this position is settled so much follows. The 1976 Edict was made on 24th March 1976 although its commencement date was put at 12th September, 1975. Section 1 of the Edict put the date within which the Military Governor can act up to 30th June, 1976. The 1976 Edict is well within it. The 1976 Order (L.S.L.N. No.9 of 1976) was made on 11th May, 1976 although it had a commencement date of 12th September, 1975.

 

The Committee has been held to be validly constituted and its report was submitted to the Military Governor of Lagos State. The 1976 Edict and the 1976 Order must be held to be implementation of the Report. By virtue of Section 2(1) and (2) of Decree No.18 of 1977 they are validated. That is as indeed was submitted by learned counsel to the appellant. That Section provides as follows:

 

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 Defence applies respecting

 

(a)    the forfeiture or other disposal of the property of any person, ........................... 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 proceedings 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 also significant that in that portion of the judgment of the Court of Appeal to which I made reference above, their learned justices had held that even if the Edict and order can be said to be validated they were null and void as being contrary to some sections of the 1963 Constitution - Sections 22(1) (fair hearing) and 31(1) - Again it is clear that the learned Justices did not advert to section 3(2) of Decree No.18 of 1977. That section provides that:

 

Without prejudice to the foregoing provisions of this Decree, Chapter III of the Constitution of the Federation (clearly the 1963 Constitution) is hereby suspended for the purposes of this Decree, and no question whether any provision thereof has been or is being or would be contravened by anything done or proposed to be done in pursuance of this Decree shall be inquired into in any court of law; and accordingly Section 115 and 117(2)(d) of that Constitution shall not apply in relation to any such question.

 

It would seem to me that the jurisdiction of the courts to inquire into the validity etc. of this Edict or order of 1976 has been effectively ousted by Secretion 2(2) of Decree No.18 of 1977. The question of inconsistency with provisions of the 1963 Constitution, was also dealt with by Section 3(2) of the Decree. I find that Decree No.18 of 1977 is sufficient to dispose of the issues of jurisdiction in this appeal. I must mention that in my view the combined effect of the States (Creation and Transitional Provisions) Decree No.12 of 1976 Section 1 and Section 2(1) of the States (Creation and Transitional Provisions) Decree No.17 of 1977 is also to oust the jurisdiction of the High Court. So is the effect of Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979.1 do not propose to deal with them as they have been fully dealt with in the judgment of Oputa, J.S.C., and in the judgment of the learned Chief Justice of Nigeria which I also had the advantage of reading in draft. I would only wish to add, in respect of Section 6(6)(d) ,that it is essential to examine fully the reasoning of all the Justices of this Court in Uwaifo V. Attorney-General of Bendel State (1982)7 S.C. 124 so as to determine what this Court actually held as to the meaning of Section 6(6)(d). It seems to me that the attitude of this Court to Section 6(6)(d) appears to have been more clearly stated in the recent case of Joseph Mangtup Din V. Attorney-General of the Federation (1988)4N.W.L.R. (Pt.87) 147,171.

 

In these circumstances, I too would allow the appeal and set aside the judgments of the High Court and by the Court of Appeal. I enter an order of dismissal of the action. I abide by all the other orders made by Oputa, J.S.C., including the order as costs.

 

 

Judgment delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the judgment of my learned brother, Oputa, J.S.C., in this appeal. I agree entirely with his reasoning and conclusion that this appeal should be allowed.

 

I will for the detailed reasons in the judgment of my learned brother, Oputa, J.S.C., allow the appeal and dismiss the cross-appeal.

 

The decision of the Court of Appeal and that of the High Court together with the costs awarded are hereby set aside.

 

The action in the High Court is accordingly hereby struck out for lack of jurisdiction.

 

I endorse the order as to costs made by my learned brother, Oputa, J.S.C.

 

This judgment also relates to the judgments by consent of the parties given by the trial Judge in the sister cases referred to in his judgment.

 

 

Judgment delivered by

Belgore. J.S.C.

 

I read before hand the lead judgment of my learned brother Oputa, J.S.C., with which I agree. It appears that the trial court never adverted its mind to the issue raised under Decrees No.12 of 1976 and 17 of 1977, which touch directly at jurisdiction. Time and much labour will be saved by courts if the issue of jurisdiction is looked into first and decided upon once it is raised, for failure to do so may in the end render the entire proceedings into an exercise in moot. Had the Court of Appeal not fallen into the same pitfall as the trial court on the issue of jurisdiction, the other issues in this case would not have been so be laboured. All courts of record derive their authority primarily from the Constitution of Nigeria 1979.

 

Decree No.17 of 1977 is an existing law by virtue of S.272(4)(b) of the Constitution. Decisions of this Court should leave no court in doubt as to the effect of the Constitution on the existing laws (Uwaifo V. Attorney-General of Bendel State (1982) 7 S.C. 124; Joseph Mangtup Din V. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt.87) 147, 171.) The cumulative effect of the Decrees 17 and 18 of 1977 with S.6(6)(d) of the Constitution of 1979 is that Courts are precluded from prying into the validity of certain Edicts and Decrees of the Military regimes and that is still the law. I find ab initio no jurisdiction in any court in the country to investigate the validity of Edicts 17 and 18 of 1977. Courts should be wary of holding S.236(1) of the Constitution as a carte blanc for all courts of record to have jurisdiction in all matters. Section 236(1) (supra) is subject to other provisions of the Constitution such as S.230 and S.231 thereof and it is never meant as an umbrella to shade the courts with all jurisdictions.

 

I agree with the lead judgment that this appeal succeeds and I make the same order as to costs as made by Oputa, J.S.C.

 

 

Counsel

 

Mrs D. F. Akinsanya

Director of Civil Litigation Lagos State

With

A. Yusufu -  Assistant Director of Civil Litigation

 Q. A. M. Balogun -  Principal State Counsel

 L. C. Dibia -  State Counsel

 

For the Appellant

Chief F.R.A. Williams, S.A.N.

With E. O. Sofunde, S.A.N. and T. E. Williams

 

For the 1st Respondent