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In The Supreme Court of Nigeria

On Friday, the 2nd day of March 1990

SC 120/1987

 

Before Their Lordships

 

 

Mohammed Bello

......

Justice, Supreme Court

Andrews Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

 

Between

 

Attorney-General of the Federation

Samuel Adedoyin

Rachel Restaurant Ltd.

......

Appellants

 

And

 

C. O. Sode

B. A. Okunoren

K. Odujoko

(Executors of the Will of Chief S.O.O. Sode)

.......

Respondents

 

Judgement of the Court

Delivered by

Salihu Modibbo Alfa Belgore. J.S.C.

 

The plaintiffs in the trial High Court, now respondents, took out a writ of summons as executors of the estate of Chief Samuel Oyekoya Oyelate Sode, (deceased), who was the owner of the property on the plot variously known as 132 Yakubu Gowon Street or Broad Street. Lagos. The property is a two-storey building and the claim inter alia was as follows:

 

(i)     possession of the ground floor business premises with the appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd defendants.

 

(ii)   N6,000.00 arrears of rent for the period between 1st day of August, 1979 and 31st day of July 1980 from the 1st defendant to the plaintiffs.

 

(iii)    N50,000.00 per annum against 2nd and 3rd defendants for use and occupation of the said premises with effect from 1st day of August 1980 until possession is given up.

 

The writ further explained in the endorsement as follows:

 

The 1st defendant was a yearly tenant of the plaintiffs while the 2nd and 3rd defendants are trespassers of plaintiffs' premises.

 

The annual rental value of the premises is about N50,000.00.

 

In 1971, the street which was from the time it was constructed known as Broad Street, was renamed Yakubu Gowon Street, it has reverted to the former name from 1975. By a deed of lease dated 15th day of June 1971 between the deceased. Chief Sode, and a Lebanese by the name Adnan El-Fayad, the lessee (Fayad) was to hold the ground floor of 132 Broad Street for twenty five years at the yearly rent of £3,000 and four years' rent amounting to £12,000 was paid in advance. Mr. Fayad apparently took possession of this ground floor. Not long after Mr. Fayad was deported from Nigeria. The deed of lease. Exhibit C. was tendered at the trial Court. By a letter, Exhibit D, written bv Messrs. T.A. Oyagbola. Solicitors, to Messrs Gbenga Adenowo, Solicitor for the deceased, it would appear that Adnan Ahmad Fayad assigned the remaining term of the lease to Messrs Jebs Limited. The letter written on 19th June 1972 reads:-

 

Dear Sir,

 

NOTICE OF INTENTION TO ASSIGN LEASE OF NO. 132, YAKUBU GOWON STREET, LAGOS

 

With reference to your letter dated 13th June, 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the premises to Messrs Jebs Limited.

 

As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.

 

Yours faithfully,

(Sgd.) T.A. Oyagbola & Co.

Solicitors.

 

The deed of lease, Exhibit C in paragraph 3(iii) reads:

 

(iii)   That the tenants may assign underlet the whole of the demised ground floor and part thereof during the said term on a formal notice to the landlord.

 

Jebs Limited took possession of the ground floor and was running a restaurant there; he apparently had paid some rents on the property. At any rate by 1972 when Exhibit D was written. the deceased raised no objection to the assignment of the lease to Jebs Ltd. not until 1979 when it was obvious that the Federal Military Government had, by forfeiture order acquired the unexpired lease from the company. Jebs Limited was apparently wholly owned by one J.H. Bassey, a Deputy Commissioner of Police. and as such a public officer who had been found guilty of misdeeds by an investigation panel. The Supreme Military Council in the exercise of the powers conferred by section 8 of the Investigation of Assets (Public Officers and other Persons) Decree 1968 [1968 No.37], made Public Officers (Forfeiture of Assets) Order 1978 (L.N. 33 of 1978) with commencement date fixed as 14th July 1977, but actually signed on 2nd July, 1978; this Order of 1978 was further amended by Legal Notice No.17 of 1979 still based on Decree 10 of 1976 and decree No.37 of 1968. Legal Notice No.17 of 1979 amended Legal Notice No.33 of 1978 in Part I thereof, paragraph 3 by substituting a new list of assets of Mr. J.H. Bassey to be forfeited. Included in this new list is an B item under paragraph 3 sub-paragraph(s) which reads

 

(S)    Unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos, granted to Jebs Limited.

 

To my mind, this amendment in Legal Notice No.17 of 1979 was merely to avoid any doubt as to the assets to be forfeited by Mr. J.H. Bassey. The provisions in Public Officers (Special Provisions) Decree 1976, Public Officers (Forfeiture of Assets) Order 1978 and Investigation of Assets (Public Officers and other Persons) Decree would have sufficed to make forfeited all undeclared assets of Mr. Bassey, including JEBS LTD. as and when they are found. By the provisions of the Decrees and consequent orders made on them, it would have made no difference to the situation of J H. Bassey vis-a-vis his assets to be forfeited.

 

The Public Officers (Special Provisions) Decree 1976 provides for removal of Public Officers from office either because of old age, or for the reorganisation of public service; and if it was felt that a removal was necessary because a public officer has been found to have corruptly enriched himself by engaging in corrupt practices or has enriched any other person by some corrupt practices. The removal from office would entail dismissal or summary termination or the polite request to the officer to retire voluntarily. The Decree provided for investigation of assets and if any officer was found to have acquired more than he legitimately earned during his tenure as public officer, such excess assets were to be forfeited. (See section 3 of the Decree 10 of 1976.)

 

The 1968 Decree No.37 provided for investigation of assets of public officers and other persons (whether public officers or not) and verification of such assets (see S.2 and S.3 thereof). It is a very exhaustive Decree of verifymg and searching and tracing of assets, and finally provided for forfeiture of excess or ill-gotten assets. The L.N. 33 of 1978 and L.N. 17 of l979 ordering forfeiture of the assets deemed to be corruptly acquired by J.H. Bassey, a public officer, being a Deputy Commissioner of Police, were made by virtue of Decree 10 of 1976 and Decree No.37 of 1968. Now, section 12 of the investigation of Assets (Public Officers and Other Persons) Decree 1968 (i.e. 1968 No.37) provides

 

12.   The validity of any direction, notice or order given or made or of any other thing whatsoever done, as the case may be, under this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation [1963] shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree. (Square brackets mine)

 

Decree No.10 of 1976 [i.e. Public Officers (Special Provisions) Decree] is more explicit as to ouster purport than decree 37 of 1968 in that by its S.6 it provides as follows:

 

6 (1)     For the purposes of this Decree the operation of the provisions of section 152 of the Constitution of the Federation and the corresponding provisions of the constitution of a State, which protect certain pension rights, is hereby excluded.

 

(2)    The provision of any enactment, law or instrument (including the Constitution of the Federation and the constitution of a State) relating to the benefits to which this Decree applies or relating to appointment, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.

 

(3)    No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.

 

(4)    Chapter III of the Constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done in pursuance of this Decree shall not be inquired into in any court of law.

 

Since 17th June 1972 when notice of sublease to Jebs Limited was given to the late testator, Mr. Sode, no angry finger was raised and things went on smoothly. During all this period the original lease to Fayad was not dead, all that took place was the sublease of the remaining term to Jebs Limited. This silence on the part of the late testator is understandable because the deed of lease, Exhibit C, in paragraph 3(iii) thereof permitted this. The executors of the estate of Mr. Sode started their skirmishes with the forfeiture decrees immediately they became aware of it. What is contained in the statement of defence of the 2nd and 3rd appellants in paragraphs 6, 7, 9, 10 and 11 is very illuminating:

 

6.    The defendants further aver that by virtue of the provisions of the enactment mentioned above, the 1st defendant took possession of the unexpired term in the property situate being and known as 132, Broad Street, Lagos then owned by Jebs Limited.

 

7.    The 1st defendant subsequently advertised the said property through their Agents Messrs Shote Dawodu  & Co., to the Public at large for sale, thereof the 2nd defendants made an offer and which offer was accepted by the 1st defendant.

 

8.    Thereafter the 1st defendant sold the property in question to the 2nd defendant and also executed a DEED OF TRANSFER dated 24th September, 1979 and which was registered at the Lagos State Land Registry dated 27th September, 1979. The deed of transfer vested in the 2nd defendant the unexpired part of the lease which was then vested in the Federal Government.

 

9.    The 2nd defendant was then put in possession by the 1st defendant and thereafter the 2nd defendant being the Principal Director of the 3rd defendant put the 3rd defendant into possession thereof.

 

10.    The 2nd and 3rd defendants contend that they nave been in Undisturbed possession since the transfer.

 

11.    As regards paragraphs 29 of the Plaintiff's Statement of claim the defendants contend that the Plaintiffs have received the ground rent for the period commencing from 1st August. 1979 to 31st July, 1980. The defendants further contend that the Plaintiff has refused to accept the Cheque payment of the period commencing from 1st August, 1980 to 31st July, I981.

 

The sublease to Jebs Limited was in 1972. Rents were being received by the deceased and later, after his death in 1977, by his executors. There was nothing in evidence that Exhibit D, which reads:

 

Office

30, Ikorodu Road,

Yaba.

Phone: 47553

Postal

P.O. Box 70, Mushin

Lagos State.

19th June. 1972

 

"Exhibit 'D'

 

T. Ade Oyagbola & Co. Barristers & Solicitors Of The Supreme Court of Nigeria & Notaries Public.

 

Olugbenga Adenowo, Esq.,

Barrister & Solicitors.

47 Ojo Giwa Street.

Lagos.

 

Dear Sir,

 

Notice of Intention to Assign Lease of No. 132, Yakubu Gowon Street Lagos.

 

With reference to your letter dated 13th June, 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahamad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the Premises to Messrs Jebs Limited. As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.

 

Yours faithfully,

(Sgd.) T.A. Oyagbola & Co.

Solicitors.

 

was received by the executor of the estate of Sode or by Sode himself during his lifetime. By 1978 when it was obvious Mr. J.H. Bassey was in trouble with the Federal Military Government over the corruptly acquired assets including the ground floor of 132 Broad Street, Lagos. Notice to Quit was served, not on 2nd and 3rd appellants but on Jebs Limited, a company already forfeited to the Federal Military Government. By 31st July 1980, another Notice to Quit was served on Rachel Restaurants Ltd. "Cafeterea" referring to the 3rd appellant as tenant at will/trespasser. The whole exercise of the executors who are now respondents smacks of trying to sleep by closing one eye and attempting to see the goings on with the other. They were presumed in law to have seen not only the substantive laws i.e. Public Officers (Special Provisions) Decree 1976 (1976 No.10) and Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) but also the consequent orders in Legal Notice No.33 of 1978 and Legal Notice No.17 of 1979. The respondent decided to pursue a different route by applying Recovery of Premises Act (which totally has no relevance to this matter) and ignored the forfeiture decrees and orders in legal notices made pursuant to them. Great reliance was placed by the respondents, as plaintiffs, on alien Law of Western Nigeria and Land Instrument Registration Law also of former Western Nigeria and submitted that because the whole transaction between Fayad and Jebs Limited was not registered, it was null and void. The learned Judge dismissed this outright because according to him, by virtue of Lagos State (Applicable Laws) Edict 1968 (No.2 of 1968 Lagos State) the Laws of Western Nigeria have no application to Lagos State. Ile held as follows:

 

It therefore stands to reason that a law or laws which had ceased to have effect in Lagos State as far back as 1968, cannot effect the transactions entered into and governed by the Laws of Lagos State in 1971. I therefore am of the opinion that both the Aliens Law as well as the Lands Instrument Registration Law of Western State do not affect Exhibit 'B', Counsel's contention there-fore appears to be wrong in law. In the view I have taken, Exhibit 'B' need not comply with the provisions of any law other than the Laws of Lagos State applicable to the transactions of that nature: and in so far as there was no evidence of an infringement of the laws of Lagos State. I am of the opinion that the transaction is not vitiated by any law and so Fayad obtained a perfect title. In the circumstances I do not think that the authorities to which my attention was drawn by learned Counsel to the Plaintiffs were applicable.

 

He held that the Federal Government validly took possession of the ground floor of 132 Broad Street by virtue of the Decree and Orders cited earlier in this judgment. What however was thus forfeited to the Federal Government was the unexpired term of the lease originally granted to Fayad and sublet to Jebs Limited. Learned trial Judge admirably saw clearly the issues and held:

 

What the Federal Military Government possessed according to the Public Officers (Forfeiture of Assets) (Miscellaneous Pr6visions) Order 1979, was the unexpired period of the terms in Exhibit 'B' and this it purported to pass on to 2nd and 3rd Defendants. Exhibits 'E' notified the Plaintiffs of the sale of the premises in dispute: by this documents, I think two options were open to the Plaintiffs; they could either lodge a caveat against the sale or bid at the sale, neither of this was done: they folded their arms, had their eyes wide open, and the sale was conducted in my A view according to law. 3rd Defendant therefore in my opinion is a purchaser for value without notice.

 

In Rasaq Ademola Balogun v. Saminu Salami and 2 others (1963) 1 All N.L.R. 129, a family house which had been mortgaged by owners in fee-simple was sold at auction by order of Court, and the purchaser A.F. applied to the Registrar of Titles for first registration. The first defendant was in possession at the time of the auction, and shortly afterwards the family head sold a portion of the house to the second defendant, who went into possession. The family knew about the auction sale, they could have entered a caution under section 43 of the Registration of Titles Act or opposed the registration under Section 10, and the second defendant could have done likewise, but none of them took any steps, and A.F. was given first registration. He later sold to the Plaintiff, who registered and later sued the defendants for possession and an injunction.

 

The first defendant and third, both members of the family, pleaded that the plaintiffs could not have validly bought any legal interest in what was family property; and 2nd defendant pleaded that she had bought a portion and gone into possession.

 

The trial Judge observed that A.F. and the plaintiff knew that the defendants were in possession but the plaintiff did not ask them what their interests were; he therefore dismissed the claim on the authority of Kabba v. Young, 10 W.A.C.A. 135 in the belief that the plaintiff's legal estate under his land certificate was subject to Section 52 of the Registration of Titles Act.

 

 

He relied on the Supreme Court decision in the matter and concluded as follows:

 

……… I hold that by the combined effect of this decision, the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the Defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd Defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.

 

The Plaintiffs having failed to establish their claims, the action is hereby dismissed.

 

In the Court of Appeal, the grounds filed comprised that

 

(1)    the judgment was against weight of evidence

 

(2)    that learned trial Judge erred in failing to give judgment as claimed by the plaintiff because the document relied upon, Exhibit C, the lease agreement between the testator Mr. Sode and Mr. Fayad not having been registered in accordance with S. 14 Lands Registration Act Cap 99 Laws of the Federation of Nigeria 1958 (Vol.IV) rendered that agreement null and void.

 

The appellants (now respondents in this court) filed a brief without setting out issues for determination but adverted at length to the grounds of appeal. The second and third appellants now before this Court filed a brief and took up the same issues indirectly with matters contained in the brief of appellants (now respondents). The whole matter, according to the respondents rested on Exhibit C. the lease agreement and Exhibit D letter notifying the testator of the sublease to Jebs Limited. Cleverly attempt was made to sidetrack the forfeiture decrees and orders made thereunder (supra). The Court of Appeal, set aside the judgment of the trial Court in allowing the appeal and in doing so Nnaemeka-Agu, J.C.A. (as he then was) helped frame the issues from the grounds of appeal and arguments in the written briefs by saying in his lead judgment as follows:

 

(i)    whether the jurisdiction of the High Court was ousted by the Decrees and Orders and if the answer to the above is in the negative.

 

(ii)    whether the lease to Adnan Fayad, Exhibit C was void for want of Governor’s consent.

 

(iii    )whether Exhibit C was void for non-registration.

 

(iv)    what interest if at all [there was any] was transferred to Jebs Limited by Fayad.

 

(v)    whether Exhibit M (which was the transfer to the Federal Military Government in Lands Registry) should be rectified. (Square brackets mine for emphasis).

 

Learned Justice of the Court of Appeal in his judgment held that the "pith and marrow" of the argument of the appellants before the Court of Appeal was whether it was the company called Jebs Limited that was being forfeited or was it the leasehold in the ground floor of 132 Broad Street, Lagos. If the evidence indicated that Jebs Limited had no leasehold property in 132 Broad Street, the Court was competent to say so and to hold there was jurisdiction to declare that the Court’s right to entertain the action was not ousted. There was however ample evidence that forfeited ground floor was advertised on behalf of the Federal Military Government, the evidence was clear that Fayad (who was deported after Exhibit C was made) had exercised his right to sublet and that Jebs Limited took the sublease for the unexpired terms, Exhibit D. This Exhibit, learned justice observed never proved any sublease conclusively as there was nothing from Fayad indicating his exercise of thatright of subletting. Nnaemeka-Agu. J.C.A. (as he then was) went further to assert as follows:-

 

It is observed that Exh. D was on the face of it a letter dated 19th June, 1972, written by a Solicitor to Jebs Limited. There is nothing coming from Fayad or his agent or representatives to show that he agreed to its contents. Curiously it was captioned "Notice of Intention to Assign Lease ……." and went ahead to say that "Mr. Adnan Ahmad Fayad ……… has assigned the premises to Messrs Jebs Limited.In my view this document, coming from an agent of Jebs Limited, is at best a self-serving piece of evidence and therefore worthless for purposes of proving that Jebs Limited had the property in dispute assigned to him.

 

Worse still, there is no evidence any where to show that what was A acquired by Jebs, if at all, was the eighteen years term which was sold to the 2nd and 3rd respondents. This state of the facts completely knocks the bottom out of any assertion that Jebs Limited acquired an eighteen years leasehold term 'over the property in dispute. Indeed the only evidence before the Court is that of P.W. I to the effect that the appellants' father objected to the proposed assignment between Fayad and Jebs Limited. From the pleadings in paragraphs 11 and 12 of the Statement of Claim there is nothing to amount to positive admission that the assignment of the residue of the term was completed inspite of the objection from the appellants. But I must say that the pleadings in paragraphs 13 and 14 of the said statement of claim are sufficient to show that Jebs Limited went into possession of the premises in dispute. In that state of the facts, it appears to me that when the Federal Military Government made the orders No.33 of 1978 and No.17 of 1979 with respect to the "unexpired term of the lease in respect of the Ground Floor of 132 Broad Street, Lagos" the Orders could not vest in the 1st respondent legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the Orders was to forfeit the leasehold interest of Mr. I.H. Bassey, per Jebs Limited, and not that of Chief Sode those orders would not have the effect of passing the title in the property in dispute for 18 years to the 1st respondent. In keeping with the maxim: nemo dat quod non habet, the 1st respondent had no leasehold term of 18 years to sell to the 2nd and 3rd respondents. But it is my view that on the principle of de minimis what the order succeeded in vesting on to 1st respondent was the possessory right of Jebs Limited as yearly tenants. That was what the 1st respondent could have sold to the 2nd and 3rd respondents. As the latter were in possession of the premises for which they paid rents up to 1983 they were yearly tenants within the meaning of the law. They cannot therefore be adjudged trespassers. But their tenancies would be determinable by notice and were duly determined by exhs. K1-K3.

 

As a result of the above, Court of Appeal held that the trial Court as well as Court of Appeal had jurisdiction to hear or inquire into the matter because their jurisdiction was not ousted despite the decrees and orders G made consequent upon them. He held no leasehold interest for the remaining eighteen years vested in the Federal Military Government and thus the 1st appellant in this Court, had nothing to vest in the 2nd and 3rd appellants because nemo dat quod non habet. The reason for this decision by the Court of Appeal lies in not seeking consent of the Governor because Exhibit C was a document between a native (Nigerian) and non-native (an Arab) Secondly, so held the Court of Appeal, it is a document that ought to be registered and it was not registered. However, learned justice also held as follows:

 

It is observed that these two issues were raised on the pleading (see paragraph 9 of the Statement of Claim and paragraph 3 of the statement of defence of each defendant). Inspite of the above state of pleadings, no positive evidence was called by either side on the issues of Governor's consent and registration. It has not been disputed that Exh. C was ex facie not registered. This has been conceded by the respondents. It is equally clear that no Governor's consent has been endorsed thereon. It is true that under S.10 of the Land Registration Act Cap. 99, it is only by endorsement that the consent of the Governor has been given can be proved. But, where, as in the instant case, the instrument has not been registered the question of the registrar being otherwise satisfied that such consent has been given does not arise, and, in any event has not been proved.

 

Learned justice after making the above observation further held that as of the date Exhibit C was made (15th June 1971), there was no law applicable in Lagos State which prescribed that the consent of the Governor was necessary. But he went further and held that the instrument (i.e. Exhibit C) was registrable and it was not registered and as such the instrument is void and Federal Military Government had nothing to transfer to the 2nd and 3rd appellants. He held that because Exhibit C was not registered, it was void and the transfer to 2nd and 3rd respondents was equally void.

 

The Court of Appeal unfortunately never adverted fully to the ouster provisions of Decree No.10 of 1976 and Decree No.37 of 1968. The former in section 6 and the latter in section 12 (quoted in full earlier in this judgment), clearly excluded jurisdiction of any Court or tribunal looking into these forfeiture decrees. Section 12 of Decree No.37 of 1968 is wide enough to exclude jurisdiction of the Courts; S.6 of Decree No.10 of 1976 made it dearer. The Court of Appeal reversed the High Court's decision and held that the Federal Military Government had, at best, yearly contract inherited from Jebs Limited.

 

On appeal to this Court the first appellant, Attorney-General of the Federation who represents the Government, and 2nd and 3rd appellants, Who got their right from 1st appellant based their grounds of appeal in the on the applicability of S.14 Land Registration Act, which Court of Apendered Exhibit C void.

 

The Courts must be alert that their jurisdiction is not tampered with or diminished by mischievous construction. That is when the jurisdiction exists by statue and supported by the Constitution. Is it not the Constitution that is the fountain of all our laws. Indeed, all laws, whether existing before the Constitution and those that are made after the Constitution has come into commencement, owe their legality to the Constitution. But once in clear language barring all ambiguities, a law which ousts the jurisdiction of the Courts and tribunals from looking into validity of an executive act and all the (C provisions of the Constitution as to fundamental rights are suspended as is done in Military Regimes, it is not the law to assume jurisdiction. Once a military regime comes in, whether by their being handed power by democratically elected government or through act of a coup d'etat and the effective governance is being exercised by such regime whether de facto or dejure effect must be given to that ouster. No military regime claims to respect laws inimical to its policy. Perhaps I shall make the point clearer by asserting even though Courts are not happy with ouster clauses in decrees and edicts, it should be borne in mind that a military regime will be an anomally if it decides to govern by the entrenched rights as contained in Chapter III of 1963 Constitution of the Federation or in Chapter IV of the Constitution of the Federal Republic of Nigeria 1979; in fact the military came and suspended and modified those Constitutions. To the Military, the Constitution is a veritable working document and no more, because once they promulgate a decree and that decree excludes the provisions of the Constitution (even as suspended and modified by them), the decree has the superiority to the exclusion of the Constitution and any other enactment on the subject matter of the decree (See Decree No.28 of 1970). At the time material to the Orders now in question, Decree 10 of 1976 and Decree No.37 of 1968 clearly ousted the jurisdiction of the Court in respect of any act done in the forfeiture of assets. It made irrelevant all the protective provisions of other laws and the Constitution, and indeed this includes the Constitution itself. It is for the reason of preventing Courts from arrogating to themselves powers they never had that the Constitution of 1979 itself provided a safeguard in S.6(6)(d). [See Mastapha v. Governor of Lagos State & Ors. (1987) 2 N.W.L.R. (Pt.58) 539.541; Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C. 124]. The most overwhelming part of the ouster of jurisdiction is that contained in section 6(3) and (4) of Public Officers (Special Provisions) Decree (No.10 of 1976) earlier quoted in this judgment. The pith of the Order now being questioned by the respondents is that

 

No civil proceedings shall lie or be instituted in any Court on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.

 

If the Court of Appeal had adverted to this provision, certainly it would not have embarked on finding out if there was registration of the deed or if the Governor's consent was sought. The provisions of Land Registration Act, (Cap 99 Laws of the Federation of Nigeria 1958), Land Instrument Registration Act; Registration of Titles Act are irrelevant in the face of the overriding provisions in the ouster clauses in Decree No.10 of 1976 and Decree 37 of 1968. The purport of the decrees is very clear, it was to divest persons of ill acquired assets and were not concerned with niceties of registration or consent of Governor or indeed the protection of human rights provisions of the Constitution. When Courts are faced with such situation, it is for the Courts to interpret the laws accordingly that is to say, as words in decrees prescribe. The Courts must interpret the laws as they are, including the Decrees. The purport of ouster provisions in Decrees is clear, that is, no Court or Tribunal should look into the matter the Courts are so prevented from looking into. This is the peculiarity of the Military regime, which make the Constitution subjected to their Decrees. Attorney-General of Lagos State v. Hon. Justice Dosunmu (1989) 3 N.W.L.R. (Pt.III) 552. The original source of jurisdiction is the Constitution itself, but when a military regime by a Decree promulgated ousts jurisdiction of Courts or Tribunals in any subject-matter as provided by the Constitution or any other law, the Decree must be followed.

 

It should be borne in mind that the principle of equity still exists. Who assuming that Exhibit C must be registered or consent of the Governor must be sought, is to act? The person to ask for consent is the holder of the land instrument, he is also to register the instrument. The deceased as the holder of the right of occupancy voluntarily let out the ground floor of the property to Mr. Fayad. The agreement for letting contains the provision for subletting. He had the notice of the subletting and apparently received rents from the sub-lessee i.e. JEBS LTD., and on the death of the deceased, his executors also continued to receive such rents, it will be unconscionable of the executors to now run round and contend that no consent of the Governor was obtained or that the instrument, registrable was not registered. Solanke v. Abed & Anor. (1962)1 All N.L.R. 230, 234.

 

For the above reasons the Court of Appeal was in error to have brushed aside the clear ouster provisions of the decrees. I allow the appeal and set aside the decision of the Court of Appeal. My decision is that this case as initiated in the High Court was without jurisdiction and therefore it is struck out. I award N500.00 as the costs of this appeal and N300.00 as costs in the Court of appeal. If the costs awarded by the Court of Appeal i.e N500.00 has been paid, it should be refunded to the appellants.

 

 

Judgement delivered by

Bello. C.J.N.

 

I read in advance the judgment of my learned brother, Belgore, J.S.C. I agree the appeal should be allowed and I endorse the order as to costs.

 

Like the Attorney-General of Lagos State of Nigeria v. Justice Dosumu (1989)3 N.W.L.R. (Pt. 111)552, this appeal would have to be decided on the narrow issue of ouster of jurisdiction of the courts of law to determine the claim of the plaintiffs/respondents. The property in question. was leased by deceased owner Chief Sode, on 15th June 1971 to a Lebanese, Adnan ElFayad, for 25 years and 4 years rents were paid in advance. Shortly thereafter the lessee, who was deported out of Nigeria, sub-leased his remaining term to Messrs Jebs Ltd. In consequence of investigation under the Investigations of Assets (Public Officers and Other Persons) Decree 1968. one Bassey, a Deputy Commissioner of Police, was found to be the owner of Jebs Ltd. and to have improperly enriched himself. By Order made with effect from 4th July 1977, Public Officers (Forfeiture of Assets) Order 1978, Jebs Ltd. was forfeited to the Federal Military Government in pursuance of the said 1968 Decree and Public Officers (Special Provisions) Decree 1976. With effect from the said date the interest of the company in the property question was further forfeited by the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979. Accordingly, as from 4th July, 1977 interest of Jebs Ltd. in the property stood forfeited to the Federal Military Government.

 

Furthermore, on 24th September 1979, the Federal Military Government it sold the property in question to the 2nd appellant who thereafter put the 3rd appellant in possession. The evidence showed the 3rd appellant paid the reserved rent to the respondents up to July 1980. The respondents refused to accept rent for the period August to July 1981.

 

Although the property was actually forfeited by the Order made on 2 June 1978, the appellants did nothing until on 30 October, 1980 when they filed their writ of summons claiming possession of the property in question and rent of N600 from the 1st appellant for the period 1st August 1979 to 31st July 1980 and for N50,000 from the other appellants from 1st August 1980 until possession is given to them.

 

The grounds upon which the plaintiffs/respondents founded their claim were stated in paragraph 9 of the Statement of Claim which reads:

 

9.     The lease for a term of 25 years (if any) was invalid for:-

 

(a)    non – registration.

 

(b)    Not in compliance with the form prescribed under the registration of Title Act Cap 181.

 

(c)    not properly executed.

 

(d)    failure of the tenants to obtain permission as required by law before acquiring interest in land, the Tenant, being an alien.

 

The defence of the defendants/appellants was that the Federal Military Government had acquired a valid title by virtue of the Decrees and Order I have earlier on stated.

 

After having fully considered the evidence adduced by the parties, the relevant Decrees and law cited by counsel, the trial Judge held that the defendants/appellants had acquired good and valid title to the property in dispute. He dismissed the plaintiffs/respondents' claim.

 

Not satisfied with the decision of the trial court, the plaintiffs/respondents appealed to the Court of Appeal where the issue of jurisdiction was canvassed. The respondents thereat contended that the trial court had no jurisdiction to adjudicate on the dispute. They relied on sections 12 and 6(3) of the said Decrees of 1968 and 1976 respectively which ousted the jurisdiction of the courts of law at the material time.

 

In dealing with ouster of jurisdiction, after it had considered Halsbury's Laws of England, Vol.10, 4th Ed. paragraph 720, Anisminic v. Foreign Compensation Commission (1969)2 A.C. 147 at p.170, Adelumo v. Col Johnson (1974)1 All N.L.R. (Pt.1) 28 at pp.30-33, African Newspapers v. Nigeria (1985) 2 N.W.L.R. (Pt.6) 137; Barclays Bank v. Central Bank (1976) 6 S.C. 175 at 189 and Wilkinson V Barking Corporation (1948)1 K.B. 721 at 725, the Court of Appeal concluded that courts had jurisdiction to construe the ouster provisions to find out the legislative intention - what it intended to oust and the extent of the ouster.

 

The Court of Appeal then proceeded to review the evidence and found that the lease granted to EI-Fayad had not been registered under the Registration of Titles Act, Cap. 181 of the Laws of the Federation 1958. In con-sequence thereof, the Court of Appeal declared the lease null and void and held that EI-Fayad had only acquired a yearly tenancy. It concluded that the Federal Military Government had forfeited the yearly tenancy which it could only pass to the 2nd defendant/appellant. Having found that plaintiffs/respondents had given notice terminating the yearly tenancy, the Court of Appeal set aside the judgment of the trial court and granted possession to them.

 

I consider it necessary to reiterate the relevant ouster provisions of the Decrees. Section 12 of the 1968 Decree reads:

 

(a)    The validity of any direction, notice or order given of made, or of any other thing whatsoever done, as the case may be, under this Decree. or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree. (Italics mine)

 

Section 6 of the 1976 Decree was in these terms:

 

(b) (3)   No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be dis charged and made void. (Italics mine)

 

(c) (4)    Chapter III of the Constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be inquired into in any court of law.

 

It needs to be emphasized that the issue of jurisdiction must be resolved around the provisions of the two Decrees which were then the applicable law. In parenthesis, it may be pointed out that the Investigation of Assets (Public Officers and Other Persons) Decree 1968 No.37, was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, ETC) Decree 1979 with effect from 30th September, 1979. However, the other Decree, Public Officers (Special Provisions) Decree 1976 and the two Forfeiture Orders made thereunder have not been repealed and the three are "existing law" within the meaning of section 274 of the 1979 Constitution.

 

To my mind, the provision of section 12 of the 1968 Decree is clear and unambiguous that, inter alia, the circumstances under which the order (in this appeal the Forfeiture Orders, L.N. 33/1978 and L.N. 17(1979) has been made or other thing whatsoever done, shall not be inquired into in any court of law." (Bracket and italics mine]. It is clear on the face of the two Orders 'I the "thing" done in the case on appeal was the forfeiture of the unexpired term of the leasehold in respect of the property in question. The section 12 prevented a court of law from inquiring into the forfeiture.

 

Furthermore, Section 6(3) of the 1976 Decree was more emphatic in its terms in that "No civil proceedings shall lie or be instituted in any court on account of or in respect of any act, matter or thing done under" the Decree. Certainly, the prohibition was absolute in that no civil proceedings would lie or be instituted in respect of forfeiture which was a matter or thing done under the Decree. Accordingly, the Court of Appeal erred in law in holding that the courts of law have jurisdiction to determine not only the interest forfeited but also its quantum.

 

It follows upon the correct interpretation of the relevant provisions of the two Decrees, court of law had no jurisdiction to determine any issue arising from the two Decrees and the two forfeiture Orders made thereunder.

 

Finally, one may observe that although the 1976 Decree and the two Orders are "existing law", nevertheless, the provision of section 6(6)(d) of the 1979 is not relevant because the competence of their makers was not in issue.

 

Judgement delivered by

Obaseki. J.S.C.

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. I agree with him that the plea of ouster of jurisdiction succeeds and the appeal is allowed. The decision of the Court of Appeal is hereby set aside and the suit is accordingly dismissed for want of jurisdiction to inquire into the validity of the title of the appellants.

 

The property, the subject matter of the action, filed in the High Court, has been the object of a forfeiture order published as LN.33 of 1978 as amended by Order published as LN. 17 of 1979. The property forfeited to the Federal Military Government was described as

 

Unexpired term of leasehold in respect of the ground floor of E 132 Broad Street, Lagos granted to Jebs Ltd.

 

Jebs Ltd. had taken an assignment of the unexpired term from one Adnan EI-Fayad a Lebanese who had been deported by the Federal Military Government from Nigeria. Adnan El-Fayad had taken a 25 years term of lease from Chief Samuel Oyekoya Oyelate Sode who had since then died and the executors of whose will are the respondents herein. Jebs Ltd. was fully owned by one J. H. Bassey a former Deputy Commissioner of Police who, on being probed was found to have accumulated assets far in excess of his legitimate income.

 

The detailed narration of the facts of this case has been made by my learned brother, Belgore, J.S.C., in his judgment just delivered and I need not repeat these here except those portions of the facts necessary for this concurring judgment. The main issue in this appeal is whether the courts, i.e. High Court and the Court of Appeal and Supreme Court can exercise jurisdiction to determine the claim filed by the respondents in respect of the property. This question has been answered by my learned brother, Belgore, J.S.C., in the negative. I too will answer it in the negative. This is because of the clear ouster provisions of section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968) No.37) which reads:

 

The validity of any direction, notice or order given or made or of any other thing whatsoever done as the case may be, under this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation 963 shall apply; in relation to any matter :arising out of this Decree or out of any enactment or other law repealed by this Decree (Italics mine)

 

The protection offered or given by this Decree has been continued by section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979. See Uwaifo v. Attorney General, Bendel State (1982) 7 S.C. 124. The other Decree relevant herein is Public Officers (Special Provisions) Decree 1976 No. 10 of 1976 section 6(3) and (4). These two subsections of section 6 read:

 

(3)    No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void:

 

(4)    Chapter 111 of the constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be enquired into in any court of law.

 

Finally, section 6(6)(d) of the 1979 Constitution of the Federal Republic of Nigeria creates a total ouster of jurisdiction. It reads:

 

(a)    ……

(b)    ……

(c)    ……

(d)    …… shall not as from the date when this section comes into force extend to my act ion 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.

 

Existing law has been defined and a forfeiture order forfeiting the assets of any person pursuant to powers given by the Investigation of Assets (Public Officers and Other Persons) Decree l968 i.e. Decree No.37 of 1968 comes within the definition. See section 274(4)(b) of the Costitution of the Federal Republic of Nigeria 1979. See Uwaifo v. Attorney General, Bendel State (supra).

 

It is an incontrovertible fact that the Supreme Military Council exercised the powers conferred on it by section 8 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) and made the Public Officers (Forfeiture of Assets) Order 1978. (LN.33 of 1978 with retrospective effect from 2nd July, 1977. The order which was amended by Legal Notice No. 17 of 1979 forfeited to the Federal Military Government the property described as

 

Unexpired term of the leasehold in respect of the ground floor of 132, Broad Street , Lagos, granted to Jebs Ltd.

 

The respondents claim for

 

(1)    possession of the ground floor business premises with appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd defendants;

 

(2)    N6000.000 arrears of rent for the period between 1st day of August, 1979 and 31st day of July, 1980 from the 1st defendant to the plaintiffs and

 

(3)    N50,000.00 per annum against 2nd and 3rd defendants for use and occupation of the said premises with effect from 1st day of August, 1980 until possession is given.

 

cannot lies as it is caught by the three counter provisions set out above, the property having been forfeited to the Federal Military Government. Section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) bars the court from questioning the validity of the forfeiture Orders. That section again, for emphasis reads:

 

The validity of any direction, notice or Order given or made or of any other thing whatsoever done, as the case may he, under this Decree or the circumstances under which such direction, notice or order has been given or made on other thing whatsoever done, shall not be enquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the constitution of the Federation shall apply in relation to any matters arising out of this decree or out of any enactment or other law repealed by this Decree.

 

Since the 2nd and 3rd defendants/appellants derived title from the 1st defendant/appellant who is protected by the Decrees referred to above; their occupation cannot be in trespass. Since the 1st defendant/appellant acquired the interest of Jebs Ltd. and Jebs Ltd. acquired the unexpired term of the lease of 25 years granted to Adnan EI-Fayad, the 1st appellant is not a yearly tenant as alleged. The learned trial judge was therefore justified when in concluding his judgment he held:

 

……… I hold that by the combined effect of this decision, the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.

 

For the above reasons, I agree that the appeal be allowed and the judgment of the High Court be restored.

 

I accordingly allow the appeal and I hereby set aside the decision of the H Court of Appeal and restore the decision of the High Court dismissing the claim with costs.

Judgement delivered by

Nnamani. J.S.C.

 

I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C., and I agree with him that the appeal ought to be allowed.

 

For this short concurring judgment I rely on the facts of this case as stated in the lead judgment. I intend to comment on the fundamental issue of jurisdiction which was raised in the lower court. The jurisdiction impugned was that of the High Court of Lagos State to entertain this Suit. The question of jurisdiction arose from two forfeiture orders made by the Federal Military Government which forfeited the leasehold interest held by Jebs Ltd., the matter in contest in this Suit. The two orders were made pursuant to powers vested in the Supreme Military Council under the Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968. Under the first order, Public officers (Forfeiture of Assets) Order L.N. 33 of 1978 which was made on 2nd June, 1978 but had retrospective effect to 4th July 1977, Jebs Ltd. was forfeited. By the Public Officers (Forfeiture of Assets) Miscellaneous Provisions) Order No. L.N. 17 of 1979 the earlier forfeiture order was made more specifically applicable to the "unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos."

 

This is the property in issue in this suit for JEBS Ltd. (owned by J.H. Bassey a former Deputy Commissioner of Police) was alleged to have got the unexpired 18 years of Mr. Fayad's lease from the appellants' predecessor in title, the late Sode. It was this property that the first respondent sold to 2nd and 3rd respondents.

 

It was contended that by the combined effect of Section 12 of Decree No.37 of 1968 and the Public Officers (Special Provisions) Decree No.10 of 1976 Section 6(3), the jurisdiction of the court was totally ousted. Jinadu, J., in the High Court held pursuant to L.N. No.17 of 1979 among other things that the unexpired 18 years held by JEBS LTD. passed to the 1st appellant which only passed same to 2nd and 3rd appellants.

 

In the Court of Appeal, Nnaemeka-Agu, J.C.A. (as he then was), fully adverted to the issue of jurisdiction and held as follows:-

 

From what I have said, it appears to me that the High Court as well as this court has jurisdiction to inquire whether or not its jurisdiction has been ousted. A necessary corollary of this proposition is that the court can look at the ouster provisions and the orders in question to see whether the orders were intended to vest any other person's property other than the property of Jebs Ltd. and J.H. Bassey on the 1st respondent. From what I have said, there was no leasehold interest for eighteen years vested in the 1st respondent or sold to the 2nd and 3rd respondents.

 

The learned justice of the Court of Appeal had delved into the Land Instrument’s Registration Law to discuss the validity of the lease between Fayad and Sode and of course the validity of the assignment of the unexpired 18 years of the lease to Jebs Ltd. Having held that he had jurisdiction to inquire into these matters, he had held, as stated above, in effect, that there to forfeit at the time L.N. 17 of 1979 was made and so nothing passed to 1st appellant herein.

 

Section 12 of Decree No.37 of 1968 provides as follows:-

 

The validity of any directions, notice or order given or made or of any other thing whatsoever done as the case may be under this Decree or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree?

 

Section 6(3) of Decree No.10 1976 is in these terms:-

 

No civil proceedings shall lie in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the shall abate be discharged and made void.

 

It would seem to me that these two provisions totally oust the jurisdiction of the courts to inquire into the nature of those forfeiture orders. The terms of the ouster clauses are such that it cannot be open to the court as Nnaemeka-Agu, J.C.A. (as he then was) did to inquire as to whether there was anything to forfeit i.e. whether there was assignment of the 18 years residue or not.

 

The attitude of this court to ouster clauses is now fairly settled in many decisions of this court. See Mustapha v. Governor of Lagos State & Ors. (1987) 2 N.W.L.R. 539; Uwaifo v. A.G. Bendel State (1982) 7 S.C. 124 and lately A.G. Lagos State v. Justice L. J. Dosunmu (1989) 3 N.W.L.R. (Pt. 111) 552

 

I am not unmindful of the fact that this Suit was filed in 1983. However, it is settled that the relevant law is the law at the time the cause of action arose. See Garba v. University of Maiduguri and Uwaifo (Supra).

 

Finally I am also aware of the fact that the Decree No.37 of 1968 was repealed by Decree No. 105 of 1979 which took effect on 28th September 1979, I am however of the view that the situation is full saved by Section 6(1)(b) of the Interpretation Act, 1964.

 

For these reasons, and the more detailed reasons, I allow the appeal and endorse all the orders made by Belgore, J.S.C.

 

Judgement delivered by

Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother, Belgore, J.S.C., and I agree that this appeal has merit and that it should be allowed.

 

The facts of the case may be stated as follows. The respondents, as plaintiffs, sought an action in the High Court of Lagos State, claiming the following reliefs –

 

(a)    possession of the Ground Floor business premises with appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd Defendants (now 2nd and 3rd appellants)

 

(b)    N6,000.00 arrears of rent for the period between 1st day of August, 1979 and 31st July, 1980 from 1st Defendant (now 1st appellant) to the Plaintiffs.

 

(c)    N50,000.00 per annum against the 2nd and 3rd Defendants for use and occupation of the said premises with effect from 1st day of August, 1980 until possession is given up. (Parenthesis mine)

 

Now the property at the ground floor of No. 132. Broad Street, Lagos belonged to one Chief S.O.O. Sode (now deceased). By a deed of lease dated 15th day of June. 1971 (Exhibit C) the deceased leased the property to one Adnan Fayad, an alien who was subsequently deported from Nigeria on the 25th day of October, 1971. Exhibit C granted to Mr. Adnan Fayad a leasehold term of 25 years with effect from the 1st day of August, 1971. The agreed rent was £3,000. (N 6,000.00) per annum but £12.000 (N24,000) was paid in advance as rents for four years. Sometime after Mr. Favad was deported from Nigeria, a company called Jebs Ltd. acquired interest in the property in dispute as contained in Exhibit D. which reads –

 

T. Ade Oyagbola & Co.

Barristers & Solicitors of The Supreme Court of Nigeria & Notaries Public

 

Office:

30 Ikorodu Road,

Yaba,

Phone 47553,

Postal:

P.O. Box 70, Mushin

Lagos State,

Nigeria.

19th June, 1972.

 

Olugbenga Adenowo, Esq.

Barrister & Solicitor,

47, Ojo Giwa Street,

Lagos.

 

Dear Sir,

 

Notice of Intention to Assign Lease of No. 132, Yakubu Gowon Street Lagos.

 

With reference to your letter dated 13th June. 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the Premises to Messrs Jebs Limited.

 

As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.

 

Yours faithfully.

(Sgd.) T.A. Oyagbola & Co.

Solicitors.

 

Consequently, Jebs Limited, took possession of the property in dispute and started to use it as a restaurant. Jebs Limited, was owned by one Mr. J.H. Bassey who was a Deputy Commissioner of Police. An Investigation Panel was set-up by the then Federal Military Government. As a result of the report submitted by the Investigation Panel, an order called the Public Officers (Forfeiture of Assets) Order, 1978 (LN.33 of 1978) was issued by the Federal Military Government. In the order the property of Mr. J.H. Bassey, including Jebs Limited, were forfeited to the Federal Military Government. The 1978 Order was amended by the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979 (L.N. 17 of 1979). Later the property in dispute was, at the instance of the 1st appellant, advertised for sale by auction, and it was subsequently purchased by the 2nd appellant, who later transferred his interest in the property in dispute to the 3rd appellant. Hence the suit in the High Court by the respondents against the appellants.

 

At the hearing, the learned trial Judge, (Jinadu, J.) held as follows –

 

By the provisions of the Public Officers (Forfeiture of Assets) Miscellaneous Provisions) Order 1979, among the properties forfeited to the then Federal Military Government were Jebs Limited and 'the unexpired term of the leasehold in respect of the Ground Floor of 132, Broad Street, Lagos granted to Jebs Limited." By Exhibit 'D' to which references had been made above, the Plaintiffs were aware of the assignment of the unexpired term of the lease of 132, Broad Street by Fayad to Jebs Limited, there was no evidence of refusal by the Plaintiffs to the assignment and so I hold that Jebs obtained possession of these said property to the knowledge and tacit consent of the Plaintiffs: it was this assignment that was forfeited to the Federal Military Government;Plaintiffs did not contest the possession by the Federal Military Government. I therefore hold that the Federal Military Government was lawfully in possession of the premises in dispute.

 

What the Federal Military Government possessed according to the Public Officers (Forfeiture of Assets) Order 1979, was the unexpired period of the terms in Exhibit 'B' and this it purported to pass on to 2nd and 3rd Defendants.

 

and concluded his judgment thus –

 

I hold that by the combined effect of this decision, (Balogun v. Sabiu, (1963)1 All N.L.R. 129) the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the Defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd Defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.

 

The Plaintiffs having failed to establish their claims, the action is hereby dismissed.

 

The respondents appealed to the Court of Appeal against the decision of the learned trial Judge and raised five issues for determination; the most important of which, for the purpose of this judgment, was: whether the jurisdiction of the High Court to inquire into the Orders made in 1978 and 1979 was ousted by virtue of the provisions of The Investigation of Assets (Public Officers and Other Persons) Act, 1968 (No.39 of 1968) and Public Officers (Special Provisions) Act, 1976 (No.10 of 1976). In dealing with the issue, the Court of Appeal (per Nnaemeka-Agu, J.C.A., as he then was) observed as follows –

 

…… I should however note that even though by statute a court's jurisdiction may appear to have been ousted, that court has jurisdiction to decide whether or not it has jurisdiction to deal with the matter: see Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria, (1976) 6 S.C. 175 at p.189; also Wilkinson v. Barking Corporation, (1948)1 K.B. 721, at p.725, C.A. It seems to me to follow also from this that the Court has jurisdiction to construe the ouster provisions to find out its legislative intention - that it intends to oust - and the extent of the ouster. It is on the above principles that I proceed to consider the submissions on ouster of jurisdiction of the Courts in this case.

 

After considering the provisions of section 12 of the Investigation of Assets (Public Officers and Other Persons) Act, 1968 (No.37 of 1968) and section 6 subsections (3) and (4) of the Public Officers (Special Provisions) Act, 1976 (No.10 of 1976), learned Justice of Court of Appeal went on to observe as follows -

 

The power to acquire the property in dispute was ex facie exercised under the latter Decree (Act). The former Decree (Act) ceased to have any effect upon coming into effect of the 1979 Constitution, subject of course to section 6 (6) (d) of the said Constitution which again excludes courts from determination of any issue as to the competence of any authority or person to make any law or proceedings in relation to any existing law made between the l5thofjanuary, 1966 and 1st of October, 1979. But the latter became an existing law under section 274 of the said Constitution. See F.S. Uwaifo v. Attorney-General of Bendel State & Ors. (1982) 7 S.C. 124 at p.213.

 

and after examining the pleadings and the evidence adduced before the trial Judge, learned Justice of Court of Appeal held –

 

….. But I must say that the pleadings in paragraphs 13 and 14 of the said statement of claim are sufficient to show that Jebs Limited went into possession of the premises in dispute. In that state of the facts, it appears to me that when the Federal Military Government made the Orders No.33 of 1978 and No.17 of 1979 with respect to the 'unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos' the Orders could not vest in the 1st respondent legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the Orders was to forfeit the leasehold interest of Mr. J.H. Bassey, per Jebs Limited and not that of Chief Sode, those Orders would not have the effect of passing the title in the property in dispute for 18 years to the 1st respondent. In keeping with the maxim: nemo dat quod non habet, the 1st respondent A had no leasehold term of 18 years to sell to the 2nd and 3rd respondents.

 

…….From what I have just said, it appears to me that the High Court as well as this Court has jurisdiction to inquire whether or not its jurisdiction has been ousted. A necessary corollary of this B proposition is that the Court can look at the ouster provisions and the Orders in question to see whether the Orders were intended to vest any other person's property other than the property of Jebs Limited and J.H. Bassey on the 1st respondent. From what I have said, there was no leasehold interest for eighteen years vested in the 1st respondent or sold to the 2nd and 3rd respondents.

 

The above opinions were based on the assumption that Exhibit C, the lease to Mr. Fayad was valid, (Italics mine).

 

The Court of Appeal then considered inter alia the failure to register exhibit C under the provisions of section 14 of the Land Registration Act, Cap. 99 of Laws of the Federation of Nigeria, 1958 and the Registration of Titles Act, Cap. 181 of the same Laws of the Federation of Nigeria 1958. It came to the conclusion that exhibit C was void by virtue of the provisions of Section 14 of the Land Registration Act. Cap. 99.

 

The appellants were not satisfied with the decision of the Court of Appeal. They therefore appealed to this Court. Separate Notices of Appeal were filed by the 1st appellant on one hand and the 2nd and 3rd appellants jointly on the other. However both the 1st appellant and the 2nd and 3rd appellants formulated identical issues for determination in their respective briefs of argument. The issues, as per the brief of 1st appellant, read –

 

(1)    Whether Exhibit C is void for non-compliance with the provisions of S.14 of the Land Registration Act, Cap. 99, 1958 Laws of the Federation of Nigeria or the non-compliance with the provisions of the Registration of Titles Act, Cap., 181, 1958 Laws of F the Federation.

 

(2)    What was the nature of the interest of Messrs Jebs Limited in the property in dispute which was forfeited to the Federal Military Government by virtue of the Public Officers (Forfeiture of Assets) Order, 1978 Legal Notice 33, as amended by Public Officers (Miscellaneous Provisions) Order, 1979. Legal Notice No.17 of 1979

 

(3)    Whether the Court has jurisdiction to set aside the forfeiture of assets Order in view of the ouster of Court's jurisdiction provisions and the abatement provisions in Decree and Orders.

 

(4)    Whether at best 2nd and 3rd defendants/appellants are only yearly tenants whose tenancy has been effectively determined by the respondent.

 

The respondents did not include in their formulated issues for determination the question of the jurisdiction of the Court of Appeal to set aside the Order of forfeiture contained in the 1978 and 1979 Orders. As the issue on jurisdiction is crucial and fundamental and capable of disposing of the appeal I propose to deal with it first; for if the court of Appeal or indeed, the trial court, lacked jurisdiction it would be superfluous and futile to deal with the other issues raised for determination.

 

The Federal Military Government claimed to have acquired the property of Mr. J. H. Bassey by forfeiture by virtue of the Public Officer's (Forfeiture of Assets) Order, 1978, LN.33 of 1978, section 1 of which reads –

 

1The properties set out in the second column of part of the Schedule to this Order, being assets of the persons named in the first column of the said Part of that Schedule arc hereby forfeited to, and shall vest in, the Federal Military Government free of all encumbrances and without any further assurance apart from this Order.

 

As relevant to this case, Part I of the Schedule to the Order reads -

 

 

Schedule

 

 

Part 1

 

 

Properties Forfeited

 

Name of Officer

 

Description of Property

1.

……….

 

 

2.

……….

 

 

3.

Mr. J. H. Bassey

 

……..……..

 

 

……..……..

 

 

(a)

Jebs Limited

 

 

(b)

Motor Engineering Services

 

 

(c)

Calabar Enterprises

 

 

(d)

Sparks Advertising Limited

 

 

(e)

12, Inyang Ekeng Street, Calabar

 

 

(f)

110 Bode Thomas Street. Surulere, Lagos.

 

 

(g)

50 Goldie Street, Calabar

 

 

(h)

6 Edgerly Street, Calabar

 

 

(i)

Property at Old Ikang Road, Calabar

 

 

(j)

Property at Ediba Street, Umuahia

 

 

(k)

Plot 58 Macaulay Street, Umuahia

 

 

(l)

Plot 8, Marian Extension, Calabar

 

 

(m)

89 Palm Street, Calabar

 

 

(n)

28, Enenbong Street, Calabar

 

 

(o)

72, Eagerton Street. Calabar

 

 

(p)

Property at Anantigha. Calahar

 

 

(q)

56 White House Street, Calabar

 

The Order was made by the Supreme Military Council on the 2nd day of June, 1978 and had retrospective effect from the 4th dav of Aulv. 1977. Now on the 21st day of May, 1979 the Supreme Military Council made another Order namely, Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order, 1979, LN.17 of 1979. Section 4 of the Order states –

 

4.    The Schedule to the Public Officers (Forfeiture of Assets) Order, 1978 is hereby amended as follows:-

 

(a)     …………………….

 

(b)    for paragraph 3 of Part I thereof, there shall be substituted the following new paragraph, that is -

 

3    Mr. J. H. Bassey

 

(a)    Jeb Limited;

 

(b)    Motor Engineering Services Limited

 

(c)    Calabar Enterprises Ltd.,

 

(d)    Sparks Advertising Limited

 

(e)    60,000 shares in Leventis Technical Limited;

 

(f)    12, Inyang Ekeng Street, Calabar

 

(g)    50 Goldie Street, Calabar

 

(h)    16 Edgerly Street, Calabar

 

(i)    Property at Old Ikang Road, Calabar

 

(j)    Property at Ediba Street, Calabar

 

(k)    Plot 8, Marian Extension, Calabar

 

(I)    89 Palm Street, Calabar

 

(m)    28, Enenbong Street, Calabar

 

(n)    72, Eagerton Street, Calabar

 

(o)    56 White House Street, Calabar

 

(p)    Property at Anantigha, Calabar; including -

 

(i)     Jebs Bakery; and

 

(ii)     Jebs Mixed Farm (Plantation, Poultry and Piggery);

 

(q)    110 Bode Thomas Street, Surulere, Lagos.

 

(r)    17, Balogun Street, Lagos.

 

(s)    Unexpired term of the lease Ii old in respect of the Ground floor of 132 Broad Street, to Jebs Limited;

 

(t)     Property at 3 Bassie Ogamba Street, Surulere, Lagos;

 

(u)    Plot 58 Macaulay Street, Umuahia;

 

Now both the 1978 and 1979 Orders were made by the Supreme Military Council in exercise of the powers conferred upon it by section 8 of the Investigation of Assets (Public Officers and Other Persons) Act, 1968, No.37 of 1968, as affected by section 4 of the Public Officers (Special Provisions) Act, 1976, No.10 of 1976. Section 8 of the 1968 Act inter alia provides in subsection (4) thereof as follows –

 

(4)    Any order made under this Section may vest the assets or any part thereof or the property in such assets or part thereof in any person or authority, and, to give effect thereto -

 

Section 4 of the 1976 Act states –

 

4.     The Investigation of Assets (Public Officers and Other Persons) Act, 1968 or so much of that Decree as the appropriate authority may direct, shall apply in respect of investigations, and forfeiture of, the assets of a public officer under this Decree to the same extent as it applies in respect of an inquiry conducted under that Decree,

 

Now the power of the courts at the time when the Public Officers (Forfeiture of Assets) Order, 1978 and Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order, 1979, were made, was excluded by section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree No.37 of 1968 which provided –

 

12.    The validity of any direction, notice, or order given or made, or of any other thing whatsoever done, as the case may be under this Decree, or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly, nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.

 

Furthermore, the provisions of section 6 subsection (3) of the Public Officers (Special Provisions) Act, 1976 states -

6. (3)   No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree. the proceeding shall abate, be discharged and made void.

 

It is obvious from the foregoing unambiguous provisions that the ouster of the jurisdiction of the courts was total and all embracing that it left even no room for the courts to enquire whether or not they have jurisdiction to deal with any matter arising from forfeiture under the provisions of the 1968 Act. or any subsidiary legislation made thereunder. There can be no doubt, therefore, that at the time the property of Mr. J.H. Bassey was forfeited, that is on the 4th day of July. 1977, no court could entertain any proceeding which seeks to inquire into "the circumstances under which ... the order (in question) has been given or made or other thing whatsoever done." In other words neither Mr. J.H. Bassey nor the late Chief 5.0.0. Sode, nor his executors - the present respondents, could have successfully brought any proceedings in connection with the forfeiture. Although the Investigation of Assets (Public Officers and other Persons) Act, 1968 was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc.) Act, 1979, No.105 of 1979, the repeal does not by virtue of provisions of Section 6 subsection (1) (b) of the Interpretation Act, 1964, No.1 of 1964-

 

affect the previous operation of the enactment or anything duly done or suffered under the enactment.

 

It follows, therefore, that when the Court of Appeal, proposed

 

(that) the court has jurisdiction to construe the ouster provisions to find out its legislative intention - what it intended to oust - and the extent of the ouster

 

and in the course of that exercise held –

 

The pith and marrow of the appellants' (respondents' in this appeal) case is that the intention of the two Orders was to forfeit the leasehold property of J.H. Bassey in Jebs Limited and the property of the appellants and their predecessor in title. So, if on the evidence Jebs Limited and J.H. Bassey have no leasehold interest in the property in dispute then the Court has jurisdiction to say that its jurisdiction to make any pronouncement on the property of the appellants was not ousted. In the alternative even if it is conceded that, being in possession and paying rent without a grant by Jebs Limited, made them a tenant of the landlord, there is nothing to show that that tenancy was for y, the whole residue of the term granted to Fayad. So they were merely a yearly tenant whose tenancy was duly determined by the statutory notice, Exhibits 6 and H. If it was so, the 1st appellant (sic respondent) has nothing to sell to 2nd and 3rd respondents it appears to me that when the Federal Military Government made the Orders No.33 of 1978 and No.17 of 1979 with respect to the unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos' the Orders could not vest in the 1st respondent (i.e. Federal Military Government) legal leasehold interest for 18 years which was never shown to belong to Jebs Limited.

 

It went beyond the realm of enquiring whether it had jurisdiction but was deciding whether the forfeiture was in order, which is what section 12 of the 1968 Act and section 6 subsection (3) of the Public Officers (Special Provision) Act, 1976 provide that the court should not do.

 

It is pertinent to point out that the respondents instituted this action on the 30th day of October, 1980. That is about a year after the 1979 Constitution came into force. It has been decided by this court, in a number of cases, that the fact that the 1979 Constitution gave the right to any person whose civil right or obligation has been affected to sue any government or any authority, does not have the effect of opening the floodgate for litigants to sue for a redress which they could not have obtained at the time the alleged violation or infringement of their civil right or obligation took place - see Uwaifo v. A.G. of Bendel State & Ors. (1982) 7 S.C. 124; Din v. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt.87) 147 and Dosunmu v. A.G. of Lagos State (1989)3 N.W.L.R. (Pt. 111)552. If an action is brought which indirectly' challenges the power to forfeit any property to the Federal Military Government prior to the enactment of the 1979 Constitution, such action will not be entertained by the courts, for lack of jurisdiction by virtue of Section 6 subsection 6(d) of the Constitution or any law preceeding the 1979 Constitution, which ousted jurisdiction - see Din’s case (supra).

 

In the present ease, the respondent brought their action as executors of the will of late Chief S.O.O. Sode, ostensibly asking the High Court for possession of the property in dispute and arrears of rent. whilst in actual fact they were challenging the forfeiture of the property in dispute to the Federal Military Government. In the circumstances the High Court had no jurisdiction to entertain their claims and so also the Court of Appeal.

 

In the result, I hold that the appeal succeeds on the issue of jurisdiction alone. It is not, therefore, necessary to deal with the other issues raised by the appellants. Accordingly, the decision of the Court of Appeal is hereby set aside and also the decision of the High Court. As respondents' action in the High Court was incompetent it is hereby struck-out for lack of jurisdiction; with N500.00 costs to each set of appellants.

 

Judgement delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the judgment of my learned brother, Belgore, J.S.C., just read with which I entirely agree. I only wish to concern myself with the aspect of the appeal which relates to the issue whether the learned trial Judge had jurisdiction to hear the matter.

 

My learned brother, Belgore, J.S.C, has dealt exhaustively with the facts of the case. I do not wish to repeat them. I only will state so much as is necessary for my consideration of the issue of jurisdiction.

 

The Executors of the Will of Chief S.O.O. Sode as plaintiffs had on the 30th day of October, 1980, issued a writ of summons claiming from the defendants as follows:-

 

(a)    Possession of the Ground floor business premises with appurtenances situate at 132 Broad Street, Lagos, from the 2nd and 3rd defendants.

 

(b)    N500.00 000 arrears of rent for the period between 1st day of August, 1979 and 31st July, 1980 from the 1St defendant to the plaintiffs.

 

(c)    N 50,000 per annum against 2nd and 3rd defendants for use occupation of the said premises with effect from 1st day of August, 1980 until possession is given up. The 1st defendant was a yearly tenant of the plaintiffs, while the 2nd and 3rd defendants are trespassers on plaintiff's premises. The annual rental value of the premises is about N 50,000.

 

By a lease agreement dated 15th June, 1971, the property in issue was leased to Adnan Ahmad Fayad for a term of 25 years. In 1972 Adnan Ahmad Fayad made an assignment in favour of Jebs Ltd. of the unexpired term of his own lease and gave notice of this assignment to the Landlord. In 1975 JEBS Ltd. granted a sub-lease for a period of five years of part of the property in issue to Mahmoud Rammal on a rent of N30,000 per annum commencing on 1st August, 1975. By virtue of the Public Officers (Forfeiture of Assets) Order, 1978, the 1st defendant forfeited the Assets of Mr. J.H. Bassey and vested same in the Federal Republic of Nigeria. The 1st defendant moved into possession of the property in issue following this forfeiture. The plaintiffs are claiming from the 1st defendant payment of N6,000 per annum as per the 1971 agreement which 1st defendant has refused to pay. 1st defendant had also despite protests by plaintiffs went on to sell the property to the 2nd defendant who in turn let the 3rd defendant into possession.

 

The 1st defendant denied liability and in the statement of defence pleaded at paragraphs 7, 8,9, 14, 19 as follows –

 

7.     The 1st defendant subsequently advertised the said property through their Agents Messrs. Shote Dawodu & Co. to the Public at large for sale, thereof the 2nd defendant made an offer and which offer was accepted by the 1st defendant.

 

8.     Thereafter the 1st defendant sold the property in question to the 2nd defendant and also executed a Deed of Transfer dated 24th September, 1979 and which was registered at the Lagos State Land Registry on 27th September, 1979. The deed of transfer vested in the 2nd defendant the unexpired part of the lease which was then vested in the Federal Government.

 

9.     The 2nd defendant was then put in possession by the 1st defendant and thereafter the 2nd defendant being the Principal Director of the 3rd defendant put the 3rd defendant into possession thereof.

 

14.    The lst defendant denies paragraphs 23 and 24 and further avers that the purported determination of tenancy on any other matter whatsoever in so far as the unexpired term of the tenancy ceased to have effect as from the 4th day of July, 1977, the date of commencement of the Public Officers (Forfeiture of Assets Miscellaneous Provisions) Order, 1979 L.N. 17 of 1979 under which Jebs Limited and unexpired term of the ground floor premises of 132, Broad Street, were duly and properly forfeited to and vested in the Federal Military Government of Nigeria.

 

19.    At the trial the 1st defendant will contend that the Court has no jurisdiction to try this suit by virtue of the provisions of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968 and the Public Officers (Special Provisions) Decree, 1976 and that the suit should he dismissed on that ground and for being frivolous and without merits.

 

The 2nd and 3rd defendants similarly averred in paragraph 12 of their statement of defence as follows:-

 

(12) The defendants will at the trial rely on all legal and equitable defences available or known to law.

 

Although relying on the want of jurisdiction of the Court, or legal and equitable defences. the issue of jurisdiction was not taken at the trial, probably because 1st defendant didn’t participate after joining issues. However, the learned trial Judge in his judgment considered the effect of the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order, 1979. The question whether the court had jurisdiction was not discussed. The learned Judge dismissed the claims of the plaintiffs in their entirety. Plaintiffs appealed.

 

One of the questions for determination in the Court of Appeal, where the question of jurisdiction was first argued, was whether the jurisdiction of the High Court was ousted by the Decrees and Orders. The Court of Appeal after considering and construing the provisions of the relevant Decrees and Orders, relied upon, held that the intention was the forfeiture of the interest of J.H. Bassey and not those of the appellants, answered this question in the negative and went to decide the substantive issue. The Court of Appeal allowed the appeal with costs to the appellants/plaintiffs. The defendants have now appealed to this court, and have urged the lack of jurisdiction in the court as one of the grounds of appeal.

 

Because this judgment is concerned only with this ground of appeal, I shall reproduce the ground with the particulars which are as follows:-

 

4.      The learned Justices of the Court of Appeal erred in law in holding that the court had jurisdiction to adjudicate on the issues of this suit.

 

Particulars of error

 

(i)    The provisions of section 1 of the Federal Military Government (Supremacy and Enforcement Powers) Decree No.28 of 1970, sections 8 and 12 Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968,as amended, sections 4 and 6 of Public Officers (Special Provisions) Act No.10 of 1976, section of the Interpretation Act 1964 and section 6(6)(d) of the Federal Republic Constitution, 1979 as amended, specifically ousted the jurisdiction of the Court.

 

(ii)    Hearing the matter is indirectly rendering invalid or making pronouncement of the validity of the Public Officers (Forfeiture of (sic) Order, 1978, legal Notice 33 of 1978, which took effect from 1st July, 1977 as amended by Public Officers (Miscellaneous Provisions) Order, 1979, Legal Notice No.17 of 1979, this the Court is prohibited from doing.

 

Parties filed their briefs of argument which they adopted and relied upon in argument before us. It seems to me that questions 3 of the issues formulated for determination by all the appellants covers ground 4 of the grounds of appeal set out above. Respondents' formulation of issues did not include any issue on jurisdiction, thus ignoring that issue. I shall adopt the issues formulated by appellants. The question 3 formulated reads –

 

3.    Whether the Court has jurisdiction to set aside the forfeiture of assets Order in view of the ouster of Courts jurisdiction provisions and the abatement provisions in the Decree and Orders.

 

The Court of Appeal after stating the general principle that where the provision ousting the jurisdiction of the Court is clear and unambiguous the Court is bound to apply it as it is, argued quite correctly that the Court has jurisdiction to decide whether it is not precluded from hearing the subject matter of the action - See Barclays Bank Ltd. v. Central Bank (1976) 6 S.C. 175. It is on the basis of this second proposition that it proceeded to exercise jurisdiction.

 

Now it seems to me that although High Courts exercise unlimited civil and criminal jurisdiction - See s.236(l) Constitution, 1979, the amplitude of this jurisdiction can be and are sometimes limited by the provisions of particular statutes. Hence when the words of a statute suggest that the court shall not have jurisdiction, it is of critical importance for the court to construe the words of the provisions very carefully and to gather from the words used the nature of the ouster. See Barclays Bank v. Central Bank (1976) 6 S.C. 175

 

It is true that courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction. It is however well settled that where the words of a statue as to the jurisdiction of the Court are clear and unambiguous, they must be given effect. But it is also well settled that the exercise of a right of action is derived from the fundamental law of the land, or any statute specifically conferring such right. The Court can only exercise jurisdiction with respect to a right of action, and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action - See Bello & Ors v. A-G for Oyo State (1986) 5 N.W.L.R. (Pt.45) 828. This court has in many recent decisions defined what is a right of action.

 

A right of action has been held to consist in the facts which enable a person to bring a complaint before the court - See Adigun v. A-G of Oyo State (1987) 1 N.W.L.R. (Pt.53) 678 S.C. This can be created or extinguished by statute. Counsel to the appellants relying on section 12 of the Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968 has submitted that the trial court has no jurisdiction to hear the matter before it because it is a complaint concerning the forfeiture of the assets of Public Officer. Citing the Judicial Committee of Privy Council decision in Moore v. Tayee (1934) 2 W.A.C.A. 43, counsel submitted that where a statute expressly provides that a court shall have no jurisdiction in any matter, the court must refuse to entertain it. It was further submitted that the specific exclusion of jurisdiction by statute includes the exercise of the inherent jurisdiction of the Court. Accordingly, section 236(1) of the Constitution, 1979 which vests in the High Court unlimited jurisdiction is unhelpful in the circumstance. Counsel relied on Adegbenro v. Akintola (1962) All N.L.R. (Pt.3) 461, and Nafiu Rabiu v. Kano State (1980)8-11 S.C.130 at 148 for this proposition. It was further submitted that an exercise of jurisdiction in the E face of clear, unambiguous. express prohibition is an exercise of excess jurisdiction, and orders made in consequence are void. Counsel cited Timitimi v. Amabebe 14 W.A.C.A. 374 at p.376. and Fulham, Hammersmith & Kessington Rent Tribunal, Ex parte Zerek (1951)2 K.B.l at p.10, Anisminic v. Foreign Compensations Tribunal (1869)1 All E.R. 208,233-234; Adejumo v. Col. Johnson (1972)1 All N.L.R. (Pt.1) 159, 166, 168; Uwaifo v. A-G. Bendel State (1982) 7 S.C.124; Macfoy v. U.A.C. (1961) 3 All E.R. 1169, 1172; Mustafa v. Governor of Lagos State (1987) 2 N.W.L.R. (Pt.58) 539 S.C. as authority for his submissions.

 

Finally, on the question of ouster of the Court's jurisdiction, it was submitted that the onus is on the party asserting jurisdiction to satisfy the court that there is jurisdiction and relied on Siwoniku v. Odufuwa (1969)1 All N.L.R. 216 and Akrobotu v. Normeshie & Ors 14 W.A.C.A. 290, 291. Counsel went on to conclude from his construction of the provisions of the Public Officers (Special Provisions) Decree, 1976 to submit that apart from the exclusion of right of action, under section 6, thereof pending actions were to abate.

 

Learned counsel went on to discuss the principle of the abatement of H pending actions and cited the case of Enwezor v. Onyejekwe (1964)1 All N.L.R. 14, 19-20. This submission is in my opinion not relevant to the facts of the case. The contention is whether there is jurisdiction. The issue of a validly exercised jurisdiction abating is not the matter here in issue; and does not stricto sensu arise.

 

Finally, on the issue of jurisdiction learned counsel submitted that the question of jurisdiction is so fundamental to the hearing of an action that it can be raised at any stage of the proceedings, and even for the first time on appeal; even if before this court. The cases of Odiase & Anor. v. Agbo & Ors (1972) 1 All N.L.R. (Pt.3) 170, 176; Benson v. Ashiru (1977) N.M.L.R. 363, 366; Udenta v. Chukwunta (1959) 111 E.N.L.R. 45; Onyeama v. Oputa (1987)3 N.W.L.R. (Pt.60) 259 S.C.

 

In answer to the above submissions learned counsel to the respondents submitted that the Decree relied upon by appellant as an ouster to the jurisdiction of the court are inapplicable. It was submitted that it was necessary to establish the legal title of the public officer in the property, before the jurisdiction of the court can be ousted. The court has jurisdiction to determine whether or not the property in dispute belongs to the public officer or to an innocent person. Thus the court has jurisdiction to determine whether the property in dispute is the property of J. H. Bassey (Jebs Ltd.) or that of Chief S.O.O. Sode. It was contended that the intent and purpose of all the investigation of Assets of Public Officers Decrees and consequent forfeiture Orders are directed at the assets of affected Public Officers - not innocent citizens such as Chief S.O.O. Sode.

 

It was admitted on all sides that the question whether the jurisdiction of the court was ousted or the trial Judge had jurisdiction in respect of the claim of the plaintiffs before him will depend entirely upon the construction of the provisions of sections 8 and 12 of Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968, as amended, and sections 4 and 6 of Public Officers (Special Provisions) Act No.10 of 1976; Public Officers (Forfeiture of Assets) Order, 1978. L.N.33 of 1978 which took effect from 1st July, 1977 as amended by Public Officers (Miscellaneous Provisions) Order, 1979, LN.17 of 1979.

 

It is not disputed that the Order for forfeiture of the property in dispute was made under the Public Officers (Forfeiture of Assets) Order, 1978, L.N .33 of 1978 made by virtue of sections 8 and 12 of the Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968 as amended by sections 4 and 6 of the Public Officers (Special Provisions) Act No.10 of 1976.

 

I regard it of immense assistance to construe these parent enactments and subsidiary legislation made under them in the light of the other provisions, if any from which they derive their vires in order to determine the scope of their effect. The question therefore is what have these legislations provided? I shall start with the provisions of section 12 of the Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968 which provides that:-

 

12.    The validity of any direction, notice or order given or made, or of any other thing whatsoever done, as the case may be, under this Decree, or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice, or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter 111 of the Constitution of the Federation Shall apply in relation to any enactment Or other law A repealed by this Decree.

 

It is important to observe that the asset subject matter of the action was forfeited by virtue of the Public Officers (Forfeiture of Assets) Order, 1978 made under section 8 of the Investigation of Assets (Public Officers and other Persons) Decree, 1968 and Pubic Officers (Special Provisions) Decree, 1976; and Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order, 1979 LN. 17 of 1979.

 

It is clear that the Investigation of Assets (Public Officers and other Per-sons) Decree No.37 of 1968 ceased to have any effect upon the coming into effect of the Constitution, 1979. (See Decree No.105 of 1979). But the validity of any acts done under the Decree or the competence of any authority as regards that law was preserved, and excluded from the exercise of jurisdiction by the Courts in section 6(6)(d) of the 1979 Constitution. It is however obvious that the Decree precluded courts from inquiring into the validity of any direction, notice, or order given or made under the Decree enactment or law or the circumstances of the making thereof Thus the court cannot inquire into any action brought by any person affected by the provisions of the Decree or orders, direction, notice, made thereunder - See Uwaifo v. Att. Gen. Bendel State (1982)7 S.C. 124.

 

Again section 6(3) (4), Public Officers (Special Provisions) Decree No.10 of 1976 provides

 

(3)    No civil proceedings 511(111 lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by' any person under this Decree and if any such proceedings has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.

 

(4)    Chapter 111 of the Constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done or purported or proposed to be done F in pursuance of this Decree shall not be inquired into in any court of law.

 

The above Decree is an existing law by virtue of section 274 of the Constitution, 1979. A literal construction of the underlined unambiguous words of section 6(3) thereof, and the use of the word "shall" which here is mandatory, coupled with the opening phrase which is imperative. "No proceedings " clearly demonstrate without any ambiguity that, no court is vested with jurisdiction in respect of any act, matter, or thing, done or purported to be done by any person under the Decree. The expression used does not leave any room for exceptions or indicate conditions for the exercise of jurisdiction. The exclusion of jurisdiction relates both to acts done and those purported to be done under the Decree. Thus as soon as it can be shown that the act complained of in the action is one done under the Decree, whether done or purported to have been done, section 6(3) operates to exclude the jurisdiction of the Court.

 

Although the Court of Appeal referred to the above cited provisions, it took the view that acts purported to have been done under the Decree are not caught by the provisions but only acts done under the Decree.

 

This is contained in the passage in the judgment at pp.332*333 of the record of appeal where it was said:

 

In the state of the facts, it appears to me that when the Federal Military Government made the Orders No.33 of 1978 and No.17 of 1979 with respect to the "unexpired term of the leasehold in respect of the ground floor of 132 Broad Street, Lagos" the Orders could not vest in the 1st Respondent legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the Orders was to forfeit the leasehold interest of Mr. J.H. Bassey, per Jebs Limited, and not that of Chief Sode those Orders would not have the effect of passing the title in the property in dispute for 18 years to the 1st Respondent.

 

Having so held the Court of Appeal went on to hold that the 1St respondent, who is the 1st appellant before us, had no leasehold to sell to the 2nd and 3rd respondents, who are the 2nd and 3rd appellants before us. The court however went on to hold, to save the transaction, that 2nd and 3rd appellants were in possession and had paid rents up to 1983, they could therefore not be regarded as yearly tenants. On the above view the Court of Appeal held that both the trial court and itself had jurisdiction to inquire whether their jurisdiction was ousted. The court then went on to hold that it had jurisdiction to inquire into acts done under the Decree because as it said:

 

…… the court can look into the ouster provisions and the Orders in question to see whether the orders were intended to vest other person's properly other than the property of Jebs Limited and J. H. Bassey on the 1st respondent.

 

With due respect to the learned Justices of the Court of Appeal, this is a completely erroneous interpretation of the plain and unambiguous words of the provision. The words "acts done or purported to be done" need no further elaboration. The exclusion of the exercise of jurisdiction is with respect to determinations of the acts done or purported to have been done. The approach of the Court of Appeal which distinguishes between acts contemplated by the Order and those not contemplated is enquiring into "the acts done or purported done" and is doing exactly what the court has been prohibited by the statute from doing. Where jurisdiction is not expressly conferred by statute, a court should not interpret the provision so as to confer jurisdiction by implication. - See Ariyo v. Ogele (1968) 1 All N.L.R. 1.

 

The well settled principle of construction of statutes in our courts is that where the words of the statute are clear that the jurisdiction of the court is excluded, the court is bound to give effect to such words. - See Okumagha v. Egbe (1965)1 All N.L.R. 62.

 

In Moore v Tayee (1934)2 W.A.C.A. 43, at p.45, the Judicial Committee of the Privy Council declared;

 

It is quite true that their Lordships as every other court, attempt to do substantial justice and to avoid technicalities, but their Lordships like any other court are bound by statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other court to have jurisdiction.

 

It is important to appreciate the nature of the provision construed. It is that the court is precluded from exercising jurisdiction in respect of the subject matter of the action, and consequently comes within the second of the conditions for determining competence as enunciated in the decision of this court in Madukolu v. Nkemdilim (1962) All N.L.R. 587 where Bairamian, J.s.C., B stated,

 

(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.

 

It seems to me unarguable that acts done or purported done under the provisions of the Public Officers (Special Provisions) Act No. 10 of 1976 are excluded from the jurisdiction of the courts. The subject matter of the case is therefore not within its jurisdiction. The court can therefore not validly exercise jurisdiction in respect of such acts. If their justices of the Court of Appeal had adverted to the all pervading nature of the expression "acts done or purported done" in section 6(3) of Act No.10 of 1976, they would have appreciated that the mischief which the legislation was aiming at was the protection of the acts of the administration under the legislation. - See Ifezue v. Mbadugha [1984]1 SCNLR 427; I.G. P. v Marke (1957)2 F.S.C. 5; [1957] SCNLR 53. It is also for the same considerations that the provisions of section 6(6)(d) of the Constitution 1979 was made to protect acts done by the Military administration prior to its departure - See Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C. 124; Mustafa v. Governor, Lagos State (1987)2 N.W.L.R. (Pt.58) 539 S.C.

 

I agree with learned counsel to the appellants that the issue of jurisdiction is fundamental to the hearing of an action. It is particularly relevant to determine in limine at the first opportunity whether there is jurisdiction because as was said in Mills v. Renner (1940) 6 W.A.C.A. 144, 145,

 

it would be manifestly absurd to suggest that a court was bound F to proceed with the taking of lengthy evidence of the parties to a suit where it appeared that the whole suit could be decided upon the pleadings without any evidence being called." - See also Eleko v. Badddey & Anor. (1925) 6 N.L.R. 65; Foko v. Foko (1968) N.M.L.R. 441.

 

It was clear on the pleadings that the jurisdiction of the court was ousted G by the provisions of the Decrees and Legal Notices relied upon by the 1st defendant/now 1st appellant. The Court of Appeal was in error to have ignored the provisions ousting the jurisdiction of the court. It is not necessary to go into the issues, which in my view is a futile exercise. Where there is no jurisdiction the exercise of jurisdiction will result in nullity. - See Timitimi v. Amabebe 14 W.A.C.A. 374.

 

For the reasons I have given herein, I allow the appeal, and set aside the judgment of the Court of Appeal and restore the judgment of the High Court. Respondents shall pay costs to the appellants, assessed at N500 in this court and N300 in the Court of Appeal. If the costs of N1,000 awarded respondents in the Court of Appeal has been paid, it should be refunded to appellants.

 

Judgement delivered by

Wali. J.S.C.

 

The property, which is the subject matter in Suit No. Ld/1368/80 filed in the High Court of Justice, Lagos State, Lagos Judicial Division, is the ground floor business premises with appurtenances, situate at No.132 Broad Street Lagos. Chief S.O.O. Sode the owner of the premises (now deceased) granted a lease of the said premises to one Adanan Fayad, a Lebanese citizen, for a term of 25 years commencing from 1st August 1971 at an agreed rent of £3,000 per annum (N6,000.00). The lessee paid to the lessor the sum of £12,000 (N24,000.00), being the rents for 4 years. Sometime thereafter that is in 1971, Adanan Fayad was deported from Nigeria and his interest in the leased property was assigned to Jebs Ltd., a company owned by J.H. Bassey who was at the material time a Deputy Commissioner of Police, therefore a public officer. In 1977 the assets of Mr. Bassey were investigated by a panel set up for that purpose under the Investigation of Assets (Public Officers and other Persons] Decree No.37 of 1968 as affected by the Public Officers (Special Provisions) Decree No.10 of 1976. Following the report and recommendations of the panel, some assets of Mr. Bassey including Jebs Ltd. were forfeited to the Federal Military Government by virtue of the Public Officers (Forfeiture of Assets) Order No. L.N. 33 of 1978 which was subsequently amended by the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order No. L.N. 17 of 1979.

 

The Federal Military Government, through the 1st appellant sold and re-assigned its acquired interest of the remaining term of the lease to 2nd appellant who in turn put the 3rd appellant in possession.

 

The respondents as Executors of the estates of Late Mr. Sode filed the present action in the Lagos High Court against the 1st, 2nd and 3rd appellants claiming for possession of the ground floor of No.132 Broad Street, Lagos and arrears of rent. The claims were dismissed by the High Court. The present respondent then appealed to the Court of Appeal. Lagos. With the leave of the Court of Appeal the present appellants as respondents, were granted leave to raise and contest issue of the ouster of the court's jurisdiction under Section 12 of Decree No.37 of 1968 and Section 6 of Decree No. 10 of 1976.

 

At the end of the arguments before the Court of Appeal. the Court of Appeal held that both the trial court and the Court of Appeal had jurisdiction in the matter, allowed the appeal, set aside the judgment of the trial court and entered judgment for the present respondents as appellants as follows -

 

The 2nd and 3rd respondents are hereby ordered to give up possession of the ground floor of No. 132 Broad Street, Lagos in dispute, within three months from today. Claims (b) and (c) are dismissed. The 2nd and 3rd respondents would have been held Iiable to pay to the appellants mesne profits at the rate of N6,000.00 per annum from 1st August, 1993 until possession is given up but then this has not been claimed. Title No. LO.5402, Exh. M, shall be rectified to delete the names of the 2nd and 3rd A respondents and reflect the result of this judgment. This shall be the judgment of the High Court.

 

The present respondents were awarded costs of N750.00 in the trial court and N1,0000.00 in the Court of Appeal.

 

Against the decision of the Court of Appeal, the appellants have now appealed to this court.

 

I have had the privilege of reading in advance a copy of the lead judgment of my learned brother, Belgore, J.S.C. I entirely agree with his reasoning and the conclusion that this appeal has merit and it must therefore succeed.

 

In the briefs filed by the 1st appellant and the 2nd and 3rd appellants respectively, four issues, identical in meaning, though differently worded, were formulated. One of these issues deals with the jurisdiction of the courts to entertain the case. It states –

 

Whether the court has jurisdiction to set aside the forfeiture of assets order in view of the ouster clauses in the Decrees and Orders

 

There is no doubt that courts are always jealous of their jurisdiction and where the intention of the legislature is not clear in any legislation which purports to divest the court of its jurisdiction in a particular matter, the inclination of the court has always been and will continue to be, to construe the statute against the legislature in favour of the subject.

The ouster clauses in matter before the court are contained in Decree No.37 of 1968 and Decree No.10 of 1976. Section 12 of Decree No.37 of E 1968 provides as follows –

 

12.The validity of any direction, notice or order given or made or of any other thing whatsoever done, as the case may be, under this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter 111 of the Constitution of the Federation f 19633 shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.;

 

while Section 6 of Decree No.10 of 1976 also provides that –

 

6. (1) For the purposes of this Decree the operation of the provisions of Section 152 of the Constitution of the Federation and the corresponding provisions of the Constitution of a State, which protect certain pension rights, is hereby excluded.

 

(2)    The provision of any enactment, law or instrument (including the Constitution of the Federation and the constitution of a State) relating to the benefits to which this Decree applies or relating to appointment, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.

 

(3)    No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.

 

(4)    Chapter 111 of the Constitution oft he Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done in pursuance of this Decree shall not be inquired into in any court of law.

 

The Federal Military Government following the report and recommendations of the panel setup to investigate the assets of Mr. J.H. Bassey promulC gated Public Officers [Forfeiture of Assets] Order 1978, L.N. No.33 of 1978, forfeiting Jebs Limited (a company owned by Mr. Bassey) to the Federal Military Government. This will automatically include all interests vested in the said company. By another amending Order, L.N. No.17 of 1979, and in order to cure any seeming ambiguity in L.N. No.33 of 1978, the Federal Military Government stated therein that the unexpired term of leasehold in respect of the ground floor of No. 132 Broad Street Lagos, granted to Jebs Ltd. was forfeited to the Federal Military Government.

 

It is abundantly clear that from the Decrees and Orders referred to (supra), Jebs Ltd. and its interests whatsoever and howsoever acquired were forfeited to the Federal Military Government and that by virtue of Sect ion 12 of Decree No.37 of 1968 and Section 6 of Decree No. 10 of 1976, all courts are made incompetent to inquire into the validity or otherwise of any property forfeited under the provisions of these Decrees and Orders. Both section 6 of Decree No.10 of 1976 and section 12 of Decree No.37 of 1968 are so clear as to their meaning. intent and purpose to make room for any contrary interpretation. A court is not permitted to ascribe meaning to a statute in order to make it conform with the Judge's own views of sound social policy. See The Attorney-General of Lagos State v. The Hon. Justice L. Dosunmu (1989) 3 N.W.L.R. (Pt.111)552.

 

It is for these and the more detailed reasons in the lead judgment of my learned brother, Belgore, J.S.C., that I am also allowing the appeal. I abide by the consequential orders made in the lead judgment, including that of costs.

 

 

 

Counsel

 

S.N.C. Haris Eze

Deputy Director of Civil Litigation

Federal Ministry of Justice

  ........

For the 1st Appellant

K. Adeosun

  ........

For the 2nd and 3rd Appellant

O. Adenowo

  ........

For the Respondent