Aderele Adejumo & Anor . v. Colonel Mobolaji Johnson (1974)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C 

In this appeal the appellants have sought to limit the area and extent of the provisions of Decree No. 28 of 1970 titled “Federal Military Government (Competency and Enforcement of Powers) Decree 1970.”

The details about the application for certiorari and the order nisi made therein are not relevant. After the order nisi was granted the respondent was served with necessary papers. The respondent filed a motion by way of demurrer under Order 28 Rule 1 of the former Supreme Court (Civil Procedure) Rules Cap. 211 in Vol. X of the Laws of Nigeria (1948). The motion was upheld by the High Court of Lagos State (George J.). Against that decision, the appellants filed two grounds of appeal which thus read:

“1. That the learned trial judge erred in law in entertaining a motion brought under Order 28 of the High Court of Lagos (Civil Procedure Rules) when the applicants in the motion appealed from, had themselves put facts in issue in the main application and after hearing date of the said main application had been fixed and hearing actually Commenced.

2. That the learned trial judge erred in law in holding that any order he makes should be null and void because of the provisions of Decree No. 28 of 1970.”

Mr. A.L.A.L. Balogun, learned Counsel for the appellants, did not argue ground 1. He concentrated all his arguments on ground 2 It was contended by him that since the orders L.S.L.N. 13 of 1969 and L.S.L.N. 14 of 1969 which were sought to be quashed, were made by the Military Governor of Lagos State, such orders, at most, could assume the characteristic of edicts. If that contention is accepted, learned Counsel further argued, that it is open to the High Court to test whether such edicts conflict with the provisions of a decree of the Constitution of the Federation (as amended up till 1969), and that the test would have shown that the two orders conflict with Section 31 of the Constitution. On that basis, therefore, the learned trial judge was wrong in his judgment in refusing to entertain or consider the application for certiorari.

The arguments addressed to us on appeal were never canvassed before the learned trial judge and therefore his consideration and conclusion were not based on these grounds, and this court did not have the benefit of the view of the lower court

In the lower court, the contention of the learned Counsel for the appellants now before us, was that the Military Governor of the Lagos State had no jurisdiction to issue the orders complained of, and therefore such orders do not come within the provisions of Decree No. 28 of 1970. On the other hand, the learned State Counsel argued, on behalf of the respondent, that the orders complained of were properly made and being valid cannot be challenged in any court of law under Decree No. 28 of 1970.

The learned trial judge had this to say on the issue raised before him about the application of Decree No. 28 of 1970:

“Now Decree No. 28 of 1970 as stated above specifically refers to any decision in the exercise or purported exercise of any powers under any enactment. I cannot therefore say that under the circumstances I can proceed to entertain the action under the inherent jurisdiction such jurisdiction in Nigeria being a second derivative of an enactment Even if the inherent jurisdiction of English Courts is based on the English Common Law, that law is applicable to Lagos State by the provision of an Enactment.

This case is almost identical with Suit No. LD/440/69 Hope Halliman v. Colonel Mobolaji O. Johnson except that the claim was for a declaration while in the instant case it is one for an order of certiorari. In the aforementioned case Taylor C.J. said:

“In short the challenge is that the Lagos State Government is incompetent to make an instrument which does not fall within the provisions of Decree No. 37 of 1968 and that is one of the matters which falls within Decree No. 28 1970.”

Chief Williams has observed with reference to the remarks of Taylor C.J. that an application “for an Order of Certiorari is not a challenge to the competence of the Government of Lagos State, but an application to have Instruments referred to above, on the ground that they are null and void. In other words, he contended that the Governor of Lagos State has in Law “not done anything” vis-a-vis the Instruments.

But if I act under the provision of the High Court of Lagos Act and grant Order in the substantive action, I would be acting under the provision of an act and the order would be null and void.

This deduction from an order (if made) would make the order null and void.