Chief Obafemi Awolowo V The Hon. Mallam Usman Sarki And The Attorney-general Of The Federation (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC 

This is an appeal by the plaintiff from the judgment of Udo Udoma, J., dated the 10th December, 1962, dismissing the claim of the plaintiff, which was-”(1) for a declaration that

(a) the plaintiff is entitled under the Nigeria (Constitution) Order-in-Council to be defended in the Charge No. LA/68C/1962 in which he is the 27th accused person by Mr E. F. N. Gratiaen Q.C., or any other counsel of the plaintiffs choice whether British or indigenous.

(b) the order of the defendants prohibiting the entry of the said Mr E. F. N. Gratiaen into Nigeria for the purpose of defending the plaintiff in the aforementioned Charge No. LA/68C/1962 is ultra vires the said Nigeria (Constitution) Order-in-Council and is therefore null and void.

(2) An injunction restraining the defendants from preventing the said Mr. E. F. N. Gratiaen Q.C., or any other British counsel who might be counsel of the plaintiff’s choice from entering into Nigeria for the purpose of defending the plaintiff in the said Charge No. LA/68C/1962.” of persons accused of treasonable felony and some other offences in the said charge, that he engaged Mr Gratiaen to come out from England to defend him, that Mr Gratiaen arrived at Lagos by air on 8th November, 1962, for that purpose, and that the 1st defendant, at the time Federal Minister of Internal Affairs, refused to allow Mr Gratiaen to enter Nigeria. The plaintiff alleged that this refusal constituted a denial of his constitutional right and seriously handicapped and prejudiced him in his defence.

The constitutional right alluded to is in section 21 (5)(c) of the 1960 Constitution of the Federation; the provision is that

“(5) Every person who is charged with a criminal offence shall be entitled-

(c) to defend himself in person or by legal representatives of his own choice.”

The trial judge refers to section 13 of the Immigration Ordinance (cap. 84 in the 1958 Laws of the Federation of Nigeria and Lagos) which provides that-

“13. Notwithstanding anything in this Ordinance contained, the Minister may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria.”

The learned judge goes on to say that the Minister acted within his powers under that section 13 when he directed that Mr Gratiaen should not be allowed to enter Nigeria; and in regard to the above provision in the Constitution he gives it as his view that-

“The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in s. 21 (S)(c) ought to be someone in Nigeria, and not outside it.”

Later on the learned judge states as follows:-

“It is clear that any legal representative chosen must not be under a disability of any kind. He must be someone who, if outside of Nigeria, can enter the country as of right; and he must be someone enrolled to practice in Nigeria.”