Lakanmi V A.G. Western Nigeria (1970) – SC


Lakanmi V A.G. Western Nigeria (1970) – SC

by Branham Chima (SAL).

Supreme Court – SC.58/69

Friday, the 24th Day Of April, 1970

Ultra vires;
Legislative judgement;

It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware has a civilian government invited an army take-over, or the armed forces to form an interim Government. We disagree with the Attorney-General that these events in January 1966 are tantamount to a revolution. As Chief Williams for the appellants puts it, quoting from the Shorter Oxford Dictionary, a revolution occurs when ”there is an overthrow of an established government by those who were previously subject to it” or ”where there is a forcible substitution of a new ruler or form of Government”. These, from the facts, did not take place in Nigeria in 1966 as the situation to which we have previously referred – a rebellion by some members of the Armed Forces – caused the Acting President, with the advice of the Council of Ministers in the absence of the Prime Minister, to hand over power to the Armed Forces. We venture to put the attitude of the Acting President and the Council of Ministers to the head of the Army thus – your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the Government to us. — Ademola, CJN.

We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity. — Ademola, CJN.

As we stated earlier in this judgment, the Attorney-General does not accept the presumption of necessity. We have earlier on pointed out that in our view the Federal Government is not a revolutionary government. It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm. From the facts of the taking over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen, and its main object is to protect lives and property and to maintain law and order. — Ademola, CJN.

Ademola, C.J.N.

Chief F.R.A. Williams.

Dr. F.A. Ajayi, Attorney General Western State.

This is an appeal from the Western State Court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of Western State sitting at Ibadan.

The application before the High Court was for an order of certiorari to remove an order dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed.

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The order itself which was admitted in evidence as Exhibit B in the certiorari proceedings reads:- “Order by Assets Tribunal. Under the provisions of section 13(1) of Edict No.5 of 1967, it is hereby ordered that Mr. E.O. Lakanmi, Kikelomo Ola (his daughter) and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature (i.e., lands, houses, etc.), whether standing in their names, or in any others of their various names and/or aliases, until the Military Governor of the Western State of Nigeria shall otherwise direct. 2. In particular, it is hereby ordered that the said E.O. Lakanmi and his said daughter mentioned above shall not operate their individual bank accounts by means of withdrawal therefrom without the consent of and only to the extent that the Military Governor of the Western State shall permit in writing. 3. It is hereby further ordered that all rents due on the properties of the said persons from henceforth shall be paid by the tenants thereof into the Western State Sub-Treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary pending the determination of the issues involved in the investigation into the assets of all those concerned. 4. Attention of all the persons concerned, and or their partners, co-directors, shareholders or nominees, or anyone who may like to have business transactions with them for any reasons or in any manner whatsoever is invited to these orders and the penalties provided by section 13(2) of the same Edict in case of the infringement thereof. Dated August 31, 1967.”

The Court of Appeal ruled that Decree No.45 of 1968 was valid and that: (1) the order, which is the object-matter of the action, has been validated by Decree No.45 of 1968, and (2) that the Decree has also ousted the jurisdiction of the court.


I. Whether Edict No.5 of 1967 is valid?

“We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any state on the same subject, is void. This of course is the doctrine of “covering the field” attributed to the Australian Courts, and in accord with the cases:- i. Ex Parte Mclean 43 C.L.R. 472 at page 483; ii. The State of Victoria and Ors. v. Commonwealth of Australia and Ors. 58 C.L.R. 618 at page 630; and iii. O’Sullivan v. Noarlunga Meat, Limited, etc. (1956) 3 All E.R. 177; (1957) 45 A.C. 1 … We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.”
II. is the validity of Decree No.45 of 1968 pronounced by the Western State Court of Appeal correct?

“Decree No.45 of 1968 was not in form of an alteration of any existing law but it was clearly a legislative sentence and the Decree was spent on the persons named in the Schedule. We must once again point out that those who took over the Government of this country in 1966 never for a moment intended to rule but by the constitution. They did, in fact, recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of the Decree No.1 of 1966 does not envisage performance of legislative functions as a weapon for exercise of judicial powers, nor was it intended that the Federal Military Government should, in its power to enact Decrees, exceed the requirements or demands of the necessity of the case. In the present case we are satisfied that Decree No.45 of 1968 did go beyond the necessity of the occasion … In the present case, we observe that no argument was put forward as to whether or not the Decree (No. 45 of 1968) goes beyond the actual demand or exigencies of the necessity of the occasion. Clearly, necessity for the Decree was not shown or established throughout the proceedings.”

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“At the passing of Decree No.37 of 1968, the present case was pending in the Western State Court of Appeal. Although the Decree repealed Edict No.5 of 1967 and purported to withdraw the Constitutional rights to challenge by way of action and prerogative writs in any court of law provided for in Chapter III of the Constitution dealing with Fundamental Human Rights. The Decree refrained from touching the order made against the appellants. It would appear that more thoughts were given to this enactment and Decree No.43 of 1968 followed. But Decree No.45 of 1968 is the pith and meat of the matter. It validated everything that was wrong or wrongly done, referred specifically to the names of the appellants in its Schedule, without defining a new ‘public officers’. Validated orders made against the second appellant, who according to section 13(1) of Decree No.37 of 1968, could not by any stretch of imagination be considered a public officer. In an attempt to crown the efficacy of the Decree, it purported to shelve all actions and appeals pending before any court. In short, it stops the pending appeal of the appellant in the Western State Court of Appeal. We have come to the conclusion that this Decree is nothing short of legislative judgment, an exercise of judicial power,. It is in our view ultra vires and invalid.”

“We are in no doubt that the object of the Federal Military Government, when it engaged in this exercise, is to clean up a section of the society which had engaged itself in corrupt practices – those vampires in the society whose occupation was to enrich themselves at the expense of the country. But if, in this pursuit, the Government, however well-meaning, fell into the error of passing legislation which specifically in effect, passed judgment and inflicted punishment or in other words eroded to the jurisdiction of the courts, in a manner that the dignity and freedom of the individual, once assured, are taken away, the courts, must intervene. Every case, we reiterate, must be considered on its own facts and the materials placed before us in this matter lead to no other conclusion than that the provisions of the Decree No.45 of 1968 are such as are not reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfil.”
“This appeal will therefore be allowed and both the Edict No.5 of 1967 and the Decree No.45 of 1968 are declared ultra vires; they are null and void. Now, we recorded during the argument before us, that counsel on either side, if this case were to be sent back to the Western State Court of Appeal to hear the arguments on the issue before the High Court, would have nothing more to add to their arguments and submissions before us. No useful purpose will be served therefore in sending the case back. We have already pointed out that we cannot support the judgment of the Judge of the High Court and also that the preliminary objection to the jurisdiction of the Western State Court of Appeal was wrongly upheld. It follows that the order dated August 31, 1967, made by the Assets Tribunal and which was admitted in evidence as Exhibit B in the certiorari proceedings must be quashed, and is hereby quashed. The orders for costs made both in the High Court and in the Western State Court of Appeal are hereby set aside. The appellants are entitled to costs in the two courts, which we now assess at seventy-five guineas in the High Courts and fifty guineas in the Court of Appeal respectively. Costs in this court in favour of the appellants are assessed at 100 guineas. Order quashed. Edict No. 5 of 1967 and Decree No. 45 of 1968 declared ultra vires and void.”

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Decree, No. 45 of 1968, leaving out the Schedule, as follows: ”The Federal Military Government hereby decrees as follows:-

  1. (1) All orders specified in column 2 of Part A of the Schedule to this Decree and made under the provisions of any enactment or other law (repealed by subsection (1) of section 14 of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968) for the purpose of forfeiting the assets of, or adjudging liable to make reparation, any public officer or other person specified in column 1 of Part A of the Schedule to this Decree, are hereby validated for all purposes with effect from their respective dates of commencement as specified in column 3 of that Part, and accordingly the said orders shall have effect by virtue of this Decree as hereinbefore provided and the assets aforementioned shall be deemed to have been forfeited and the same may be disposed of or otherwise dealt with as provided in those orders. (2) All orders in writing dated respectively as specified in column 2 of Part B of the Schedule to this Decree and made in respect of the public officers and other persons specified in column 1 of that Part, under subsection (1) of section 13 of the Public Officers and Other Persons (Investigation of Assets) Edict 1967 (repealed as mentioned in subsection (1) of this section) for the purpose of prohibiting dispositions of, or other dealings with, the properties of the said public officers and other persons, except to the extent and in the manner specified in the said orders, are hereby validated for all purposes with effect from the respective dates of the making thereof. (3) All other orders, notices or documents made or given or other thing whatsoever done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of this section, are hereby validated for all purposes with effect from the dates on which the same were made, given or done respectively.
  2. (1) For the avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed as mentioned in subsection (1) of section 1 of this Decree or the circumstances under which the same has been so made, given or done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising from this Decree or from any enactment or other law repealed as aforesaid. (2) Where immediately before the date of commencement of this Decree any proceedings in any court of first instance or on appeal from such court are pending or any right to bring such proceedings has accrued in respect of any matter as to the validity of which courts are precluded from enquiring by subsection (1) of this section, the proceedings or right as aforesaid shall abate as from the date of commencement of this Decree.
  3. (1) In this Decree, unless the context otherwise requires – “public officer” has the same meaning as in subsection (1) of section 13 of the Investigation of Assets (Public Officers and other Persons) Decree 1968. (2) Subject to the provisions of this Decree, this Decree shall be read and construed as one with the Investigation of Assets (Public Officers and Other Persons) Decree 1968, and accordingly, the provisions of the last mentioned Decree shall, with necessary modifications and adaptations, apply with’ respect to orders, notices, documents and other things, whatsoever validated by this Decree. (3) The provisions of this Decree shall have effect notwithstanding anything to the contrary contained in any decision, determination, judgment or order of any court made or given before the date of commencement of this Decree. (4) This Decree may be cited as the Forfeiture of Assets, etc. (Validation) Decree 1968 and shall have effect throughout the Federation.”






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