Chief R.O. Nkwocha V. Governor Of Anambra State & Ors (1984)

LawGlobal-Hub Lead Judgment Report

ESO J.S.C.

In the High Court of Justice, Anambra State, holding at Enugu, the plaintiff in this case instituted an action against the defendants wherein his claim is as follows

“1. A declaration that section 28 of the Land Use Decree does not apply to the plaintiff’s deed of assignment of Plots No. M-17 and No. 09 Independence Layout Enugu registered as No AO at Page 40 in Volume 1043 Lands Registry at Enugu or leasehold interests in the said plots.

2. A declaration that the defendants have no right or power or competence to revoke the leasehold interests of the plaintiff in the said plots for the purposes specified in the Revocation Notices dated 16th February, 1981 (Ref. No. LEN: 3007/215 and that the said leasehold interests are still subsisting.”

The case went to trial and, at the address stage, Chief F. R. A. Williams (S.A.N.) learned counsel for the plaintiff, submitted that in the light of the pleadings, there had arisen substantial questions of law as regards the interpretation and application of some provisions of the Constitution that should warrant a reference to the Court of Appeal. The Attorney-General of Anambra State, who appeared for the defendants, opposed Chief Williams’ application.

The learned trial judge, who refused the application for reference to the Court of Appeal, proceeded with an examination of the case on its merit. He held, at the end of that examination, that the plaintiff failed to make out a case on the merit. He was also of the opinion that the case was not justifiable and the plaintiffs remedy, if any lay with the National Assembly.

The plaintiff, who was not satisfied with this decision, thereupon, appealed to the Court of Appeal, and apart from filing his notice and grounds of appeal, learned counsel representing him, Chief F. R. A. Williams S.A.N., filed a notice of application pursuant to s.259(3) of the Constitution (that is, the Constitution of the Federal Republic of Nigeria 1979) and applied that certain questions be referred to this Court. The questions which learned counsel sought to be referred are as follows:

(1) Whether the Governor of Anambra State is the proper authority to exercise the powers or functions vested in or exercisable by the Military Governor under the provisions of the Land Use Act;

(2) Whether in accordance with the provisions of section 1 of the constitution any provisions (sic) of the Land Use Act, which is inconsistent with the Constitution, is void to the extent of the inconsistency (as claimed by the plaintiff).

(3) In the alternative to question 2 whether section 28 of the Land Use Act authorises the compulsory acquisition of State land leased by the Government to an individual in accordance with the State Lands Law.

(4) In view of the provisions of section 274(6) of the Constitution that the Land Use Act shall continue to have effect as a Federal enactment as if it related to a matter in the Exclusive Legislative List, has the High Court of a State jurisdiction to entertain plaintiffs claim

The court of Appeal having heard the submissions of learned counsel, Chief Williams, and the Attorney-General of Anambra State, opposing, decided to refer the questions to this court. The Court of Appeal was influenced in its decision by the fact that there had been divergent decisions of the High Court on the matter. The court of Appeal referred to four such decisions and held that the law involved in this matter, that is, the validity of the Land Use Act vis-a-vis the Constitution, is not only unsettled, but it involves substantial legal issues. However the fourth question which deals with the jurisdiction of a State High Court in regard to a Federal enactment has been fully answered by this Court in the case of Bronik Motor Ltd. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296. We are in consequence, left to deal with the request in regard to only three questions.

When this matter came before us, we ordered, in view of the great importance of this matter, that the Attorney-General of the Federation and the Attorney-General of each of the States be put on notice and requested their appearance as amici curiae, to assist us to come to a just decision in the matter. We took submissions from all counsel representing the Federal Attorney-General and the Attorneys-General of the States that responded to our request, apart from submissions from the learned counsel representing the plaintiff, Chief R. A. Williams and also the learned counsel representing the defendant, Mr. Njelita. It is important to mention here the various submissions of learned counsel.

In a well prepared brief, Chief Williams directed the attention of this Court to the divergent decisions of some of the various High Courts in the State. The High Courts of Oyo, Anambra, Borno, Lagos and Ondo have each dealt with the issue of the constitutionality of the Land Use Act but the learned judges who made pronouncements in regard thereto had divergent views.

Chief Williams submitted, in his brief aforesaid, that without reference to the decided cases heretofore referred to the question would simply have been reduced to whether there is anything in the Constitution which requires the reading of references to “Military Governor” in the Land Use Act as if they were references to Governor of a State. Learned counsel then referred to sections 274 and 276 of the Constitution as the relevant constitutional provisions.