Chief Humphrey Omorogbe .O. v. Col. S.O.Ogbemudia & (1973)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

Pursuant to the provisions of section 115 of the Constitution of the Federation, the parties in this case requested the High Court (Benin City) to refer the question of the effect of section 31 of that Constitution on section 10 (2) of the Public Lands Acquisition Law, Cap. 105, Laws of the Western State of Nigeria applicable in the Mid-Western State and, on the 4th September, 1970 Irikefe J. (High Court, Benin City) referred the following questions to this Court, viz

“(a) Whether section 10 (2) ofthe Public Lands Acquisition Law (Cap. 105) Laws of Western State of Nigeria applicable in the Mid-Western State of Nigeria is repugnant or inconsistent with section 31 of the Constitution of the Federation in so far as the said section 10 (2) seeks to abolish after 12 months the rights of a claimant to any estate, rights, interest or compensation to land or interest in land compulsorily acquired by the government of the Mid-Western State of Nigeria.

(b) Whether in view of (a) above section 10 (2) of Cap 105 of the said Public Lands Acquisition Law is null, void and of no effect particularly as there is no time limit for compensation in the comparable Federal Act, Cap. 167.”

The learned trial judge then ordered that pending the result of the reference the substantive suit be abjourned.

At the hearing before us, it was submitted by learned counsel for Chief Humphrey Omorogbe Osagie, the appellant, that section 10 (2) of the Public Lands Acquisition Law is inconsistent with section 31 of the Constitution and that it is therefore invalid in virtue of the provisions of section 1 of the Constitution and section 3 (4) of Decree No.1 of 1966-Constitution (Suspension and Modification) Decree, 1966. On the other hand, the learned Attorney-General (Mid-Western State) contended that section 10 (2) of the Public Lands Acquisition Law was constitutional and that its constitutionality is confirmed by the provisions of the Constitution itself. The learned Solicitor-General of the Western State, who appeared as amicus curiae also submitted that section 10 (2) of the Public Lands Acquisition Law of the Western State is intra vires the Constitution and is therefore not invalid or inconsistent with the Constitution of the Federation.

Section 1 of the Constitution of the Federation reads as follows:

“1. This Constitution shall have the force of law throughout Nigeria and, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void”.

And section 3 (4) of the Constitution (Suspension and Modification) Decree No. 1 of 1966 provides thus:

“3 (4) If any law

(a) enacted before 16th January, 1966 by the legislature of a State, or having effect as if so enacted;

or

(b) made after that date by the Military “Governor of a State is inconsistent with any law:- .

(i) validly made by Parliament before that date, or having effect as if so made; or