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

(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency, be void.”

It is clear that section I of the Constitution does render invalid’ ‘any other law including the Constitution of a State” if that law is inconsistent with any of the provisions of the Constitution. Section 1 makes no reference to the date of the offending law and it is sufficient if such a law purports to be in the statute book during the subsistence of the Constitution. For reasons which are understandable, section 3 (4) of Decree No.1 of 1966 has been differently worded in order to give supremacy to laws validly made by Parliament before the 16th January, 1966 or made after that date by the Federal Military Government over laws which were enacted by a State legislature before the 16th January, 1966 or made after that date by the Military Governor of a State insofar as the latter set of laws are inconsistent with the enactments of Parliament or the Decrees of the Federal Military Government.

It was the contention of the learned counsel for the appellant that the Public Lands Acquisition Law, Cap. 105, Laws of the Western State, came into effect on the 19th June 1958, i.e. before the 16th January, 1966 and that the provisions of section 10 (2) thereof are inconsistent with those of section 31 of the Constitution which was validly enacted by Parliament before that date. Section 10 of the Public Lands Acquisition Law reads as follows

“10 (1) If for six weeks after the service and publication as aforesaid of such notice no claim shall be lodged with the Minister in respect of such lands, or if the person who may have lodged any claim and the Minister shall not agree as to the amount of the compensation to be paid for the estate or interest in such lands belonging to such person, or which he is by this Law enabled to sell and convey, or if such person has not given satisfactory evidence in support of his claim or, if separate and conflicting claims are made in respect of the same lands, the amount of compensation due, if any, and every such case of disputed interest or title shall be settled by the High Court, which court shall have jurisdiction to hear and determine in all cases mentioned in this section upon a summons taken out by the Minister, or any person holding or claiming any estate or interest in any lands named in any notice aforesaid, or enabled or claiming to be enabled by this Law to sell and convey the same.

(2) Subject to the provision of section 20, no claim to any estate, interest or right in or to any lands in respect of which a notice has been served and published in the Gazette in accordance with section 9, or to any compensation or rent in respect of any such estate, interest or right, made after the expiration of twelve months from the publication of the notice, shall be entertained by any public office whose duty it is to receive such claims or by any court.”

The pith of the complaint against section 10 (2) of the Public Lands Acquisition Law is that it abridges to a period of twelve months from the date of service of an acquisition notice the time within which “a claim to any estate, interest or right” in the lands acquired may be made. In its con section 10 (2) is made subject to the provisions of section 20 of the Public Lands Acquisition Law and section 20 provides for the payment into the court of compensation money in cases of dispute over entitlements, for the keeping of the said compensation money in the custody of the court for a period of one year before payment out to persons whose rights thereto shall have been established in the meantime, and for persons who were hitherto ignorant of the entire proceedings to apply by motion within a period of three years of the courts decision, their entitlement to be so compensated if such persons could establish a better right to the compensation money. In short, section 20 is not relevant to the present reference.

As stated before, the complaint of learned counsel for the appellant is that section 10 (2) of the Public Lands Acquisition Law is invalid or ultra vires insofar as that section makes provisions which are inconsistent with the provisions of section 31 of the Constitution. Section 31, so far as it is relevant, provides as follows:

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

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

(b) gives to any person claiming such compensation a right of access,

for the determination of this interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria.

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

……

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

(d) deprive any person of any such right as is mentioned in paragraph (b) of subsection (1) of this section.

(3) Nothing in this section shall be construed as affecting any general law-

…….

(i) relating to the limitation of actions.”

With respect to the effect of section 31 of the Constitution on section 10 (2) of the Public Lands Acquisiton Law, learned counsel for the appellant submitted that section 31 (1) gives to the owner of acquired lands an unrestricted right to the payment of compensation for his land and of access to the High Court without any limitation as to time whereas section 10 (2) of the Public Lands Acquisition Law has imposed a limitation on the time within which he may exercise his right; and section 31 (3) (1) which justifies “any general law relating to the limitation of actions”, must and does refer only to the Limitation Law, Cap. 64 Laws of the Western State. On the other hand, the learned Attorney-General of the Mid-Western State as well as the learned Solicitor-General of the Western State, contended that the Public Lands Acquisition Law, Cap. 105 is a general law and that section 10 (2) of same is a general law relating to the limitation of actions and is therefore expressly preserved and validated by the provisions of section 31 (3) (i) of the Constitution.

It is easy to see that the contention of the learned Attorney-General is well founded. Clearly, section 31 of the Constitution preserves for the owner of acquired land an unrestricted right for the payment to him of monetary compensation for the acquisition, and section 31 (1) (b) which prescribes the right of access to the High Court for the determination of his entitlement does not control or abridge in any way the content of that right and/or its exercise. If that is all to be considered it would be manifest that any law which, like section 10 (2) of the Public Lands Acquisition Law, limits the time within which such a right may be exercised to a period of twelve months, must be and is inconsistent with the wide and unrestricted right postulated by section 31 (1) of the Constitution. Indeed, at that stage section 31 (2) of the Constitution purports to confmn the integrity of the right created by section 31 (1) by justifying the existence only of “any law in force on the 31st day of March, 1958 or any law made after that date” . . . which does not either make the conditions of entitlement to compensation “less favourable to any person owning or interested in the property” or deprives the owner of any such right as is described in section 31 (1) (b). Section 31 (3) then comes in and has to be read along with the other subsections of section 31. Subsection (3) of section 31 provides that nothing in the whole of section 31 shall be construed “as affecting any general law relating to, inter alia, the limitation of actions”. As pointed out before, the learned Attorney-General for the Mid-Western State submitted that having regard to the provisions of section 31 (1) and 31 (2) of the Constitution, in order to be justifiable section 10 (2) must derive its authority or validity from the Constitution itself and that section 31 (3) (i) of the Constitution justifies the provisions of section 10 (2) of the Public Lands Acquisition Law.

We are unable to accept the contention of learned counsel for the appellant that “general law relating to the limitation of actions” must mean the Limitation Law, Cap. 64 Law of the Western State. To start with, the “I” in “general law” in section 31 (3) is written in a small letter which does suggest that the word “law” therein refers generally to statutes or even unwritten but accepted rules of conduct rather than to a specific piece of legislation. Again, it is not unconventional to speak of a general law as one which has a general application whether by virtue of the subject-matter or by virtue of the scope of its application or both. In the case of The Queen v. London County Council [1893] 2 Q.B. 454, p. 462, Bowen, L.J. was discussing the nature of the Local Government Act (1888) section 57 (51 and 52 Vict. c. 41) and in the course of his judgment he observed as follows:

“Now, a general Act, prima facie, is that which applies to the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and, as regards the individual, in its effects; and as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area-a limitation which makes them local-or limited in respect of individuals or persons-a limitation which makes them personal”.

We think that the test is the generality of the nature of the legislation concerned and such an enactment to be regarded as general law must be one which in its nature affects the public at large as distinguished from one which only or chiefly affects private, personal or local interests. We are firmly of the view that section 10 (2) of the Public Lands Acquisition Law is a general law and that it relates to the limitation of actions insofar as it stipulates the time outside which no claims could be brought or made in respect of the estate, interest or right envisaged by the section.

There are other points in the argument of learned counsel for the appellant relating to whether or not the power to legislate on compulsory acquisition is an ancillary power to the State legislature or government or whether or not the provisions of section 31 of the Constitution 2 “covers” the entire field of legislation in this aspect of legislative exercise. We do not think that these are in point in this appeal and we express no opinion whatsoever on the propriety or soundness of the submissions concerning them.

As we have concluded that section 31 (3) (i) of the Constitution saves and validates any general law relating to the limitation of actions and that section 10 (2) of the Public Lands Acquisition Law, Cap. 105, Laws of the Western State is a general law relating to the limitation of actions, section 10 (2) is therefore valid and not inconsistent with section 31 of the Constitution. We accordingly answer the questions referred as follows:

“With respect to (i) we decide that section 10 (2) of the Public Lands Acquisition Law, Cap. 105, Laws of the Western State, applicable in the Mid-Western State, is not repugnant to or inconsistent with section 31 of the Constitution.

With respect to (ii) we decide that section 10 (2) of the Public Lands Acquisition Law, supra, is not “null, void and of no effect”.

We order that the proceedings in the substantive action be now resumed and that as far as this reference is concerned, the parties do bear their own costs.

Substantive action to proceed.

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SC.289/1970