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F.S. Uwaifo V Attorney-general Bendel State & Ors (1982) LLJR-SC

F.S. Uwaifo V Attorney-general Bendel State & Ors (1982)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

This case, which is an appeal to this court, started in the Bendel State High Court as suit No. B/264/79  and the writ of summons was issued out on the 2nd of October, 1979. The summons read thus -“The plaintiff’s claim against the defendants is for:-

(a)    A declaration that the Maidoh Assets Verification Panel exceeded its jurisdiction in that it failed to determine the issues contained in its terms of reference according to law.

(b)    A declaration that the Maidoh Assets Verification Panel exceeded its jurisdiction in that it heard and received evidence and/or representations from a number of persons behind the back of the plaintiff, and thus failed to observe the rules of law and that of natural justice.

(c)    A declaration that as a result of (a) and/or (b) above, the recommendations of the Maidoh Assets verification Panel are a nullity, void and of no effect.”

The pleadings were duly filed and delivered after amendments under the Bendel State High Court (Civil Procedure) Rules, 1976. Three points of law were raised under Order 22 rule 2. This reads:

“(2)  Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial; provided that by consent of the parties, or by order of the  court or a Judge on the application of either party, the  same may be set down for hearing and disposed of at any time before the trial.”

The respondents were granted leave to set down for hearing as points of law for the defence, paragraphs 17, 18 and 19 of the amended statement of defence which read as follows:

“17.  The defendants in answer to all the claims of the plaintiff will at or before the hearing of this suit raise by way of preliminary objection on a point of law the issue that the  court has no jurisdiction to entertain this suit by reason of the provisions of the said Tribunals or Inquiries (Validation etc.) Decree 1977 ) particularly Sections 1, 2, 3 of the said Decree.

18.   In addition to paragraph 17 above, the defendants will further contend that by reason of the provisions of the said Tribunal or Inquiries (Validation etc.) Decree 1977 particularly Sections 2(1)(a)(b), 2(2) this action is void and shall be so declared.

19.   The defendants in addition to paragraphs 17 and 18 above will also contend that by virtue of the provisions of the Constitution of the Federal Republic of Nigeria, 1979, particularly Section 6(6) (d) and also the provisions of Investigations of Assets (Public Officers and other persons) Decree 1968 and the Public Officers (Special Provisions) Decree 1978 this action is not maintainable and should be dismissed/struck out.

19(a)  The defendants will also raise the point of law that on facts pleaded and/or before the court, the plaintiff has not established a right which may be adversely affected in the future by something wrongly already done by the defendants to entitle him to an order of injunction.

19(b)  The defendants will rely on the point of law that the present action which commenced only on 2nd October, 1979 is statute barred by virtue of the provisions of the Public Officers Protection Law Cap. 137 Laws of Bendel State of Nigeria since the act or default or neglect took place more than 3 months before this action.”

After hearing arguments by both sides, the learned trial Judge in his ruling stated inter alia as follows:-

“The period which the investigation was to cover was 1st January, 1966 to 30 September, 1975 and clearly all assets which appeared to the panel to have been acquired within the period, and if I may say so, this would include interests on or accretions to the assets, clearly fall within the scope of the  panel’s investigations. So that it made no difference that the plaintiff retired on the 1st day of July, 1972.

I will further specifically refer to Section 13 subsection 1(a) which I have already set out in this ruling. The plaintiff is a member of the class of persons contemplated by that sub-section, as far as the period to which the investigation should relate is concerned.

Dealing next with the point whether or not this court can entertain this suit, I have no doubt whatsoever in my mind that this court cannot. That this is so is clear from the provisions of Section 6  subsection 3 of Decree No. 10 of 1976 which came into operation on the 29th day of July, 1975. The said provisions have already been set out in this ruling.
Learned counsel for the plaintiff argued that the Assets Verification Decree has been repealed by the Constitution of the Federal Republic of Nigeria (Decree No. 105 of 1979) and accordingly anything done pursuant to the said Decree has ceased to have any legal effect or validity. That contention is erroneous. The mere repeal of an act or any law under that act or law, for such invalidation to result, the repealing legislation must say so either expressly or by necessary implication. This the Constitution of 1979 has not shown. This view of mine is fortified by Section 12 of the Interpretation Law of the Bendel State of Nigeria. The said Section 12 enacts as follows:
(a)
(b)
(c)
(d)
12(e)  affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing law had not been passed; provided that when the penalty, forfeiture or punishment imposed by the repealed Act or Law the provisions by which the lighter penalty, forfeiture or punishment is imposed shall, unless such repealing law otherwise provides, be applied if the court decides to inflict any punishment.’
It is clear therefore that the objections taken by learned counsel for the defendants to plaintiff’s action must succeed on the ground that the plaintiff cannot institute the action and that this court cannot entertain the suit. Quite apart from the points dealt with as a result of which I have held that this action is not competent and that this court cannot entertain the suit, I wish to say that the plaintiff’s claim before this court is totally misconceived.”
On appeal to the Federal Court of Appeal, Benin, the court in affirming the judgment of the lower court stated inter alia:-
“The present suit was instituted and concluded in the High Court after the new Constitution had come into force. I am however of the firm view that the law applicable to this case is the same as the law applied in Adamu’s case. As stated earlier on in this judgment the right of and obligations of the parties must be considered in this court and in the lower court in the light of the provisions of the law as it was when the cause of action arose. In conclusion these grounds of appeal must be and are hereby dismissed. I hold that the lower court had no jurisdiction to entertain the suit filed by the appellant.

In view of the conclusion I have reached, I consider it academic to go into the merits of the other grounds of appeal argued.

In the light of the foregoing I am of the opinion that this appeal must fail and it is hereby dismissed. The ruling by the Learned Chief Judge in suit No. B/264/79 in the High Court of Bendel State on 10th September, 1980 is hereby affirmed.” (The judgment of the Federal Court of Appeal was unanimous.)
On appeal before this court the  argument, generally speaking, was that since the appellant retired as Chief Accountant from the Bendel State service in 1972, he could not be brought in for investigation under Decree No. 10 of 1976 as validated by Decree No. 18 of 1977. The forfeiture of his property under edict No. 10(2) was in learned counsel’s submission null and void.

The first contention was that on 2nd October, 1979, by virtue of the provisions of the 1979 Constitution, the Bendel State High Court ought to have entertained the suit. There is no doubt that under the 1979 Constitution the appellant has the right to resort to any superior court notwithstanding the ouster of jurisdiction in Section 6(3) of Decree, No. 10 of 1976 (Public Officers Special Provisions Decree) although that Decree is still an existing law.

Learned counsel’s argument is that Section 2, subsections (1)and (2) of Act No. 18 of 1977 does no more than provide a shield or defence in the event of an action challenging the validity of Edict No. 10 of 1977.

“2.(1) Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which Section 1 of this Decree applies respecting:-

(a) the forfeiture or other disposal of the property of any person: or

(b)  the dismissal, retirement or any other exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or unincorporate, in the State,

shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.

(2) The  question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of such Edict or subsidiary instrument or act or thing the action shall be void.”

He further submitted that the correct interpretation of Section 6 of the Interpretation Act, 1964, does not affect the claim of the appellant in this case. Section 6 reads:-

“(1) The repeal of an enactment shall not

(a)  revive anything not in fore or existing at the time when the repeal takes effect;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;

(c)  affect any right, privilege, obligation or liability accrued or incurred under the enactment;

(d)  affect any  investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.

(2) When an enactment expires, lapses or otherwise ceases to have effect, the foregoing subsection shall apply as if  the enactment had then been repealed.”

He urged the court to be slow in construing the intention of the legislature to perpetuate “The Illegality or Wrongful seizure of Property”.

I wish to draw attention to Section 6  subsection (6) (1) (d) above. None of the Decrees No. 10 of 1976, No. 18 of 1977 or Edict No. 10 of 1977 have been repealed nor come under subsection (2) above. It is not in dispute that Decrees No. 10 of 1976 and No. 18 of 1977 by virtue of Decree No. 105 Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc) Decree 1979 have not been repealed. Edict No. 10 of 1977 forfeited the property of the plaintiff amongst others. That Edict has not been challenged and it remains valid and effective.

The panel was appointed under Decree No. 10 of 1976, Section 3. The argument in the submission of learned counsel for appellant, is that Section 3 should not be given a wider construction as to include Public Officers other than those appointed between 29th of July, 1975 and 23rd of February, 1976.

He submitted with some force, without bite, that in construing the relevant Decree in the  first case, Decree No. 37 of 1968 must be regarded as being contradictory to Section 4 of Decree No. 10 of 1976 . He submitted that if Decree No. 37 of 1968 is read along with section 4 of Decree No. 10 of 1976, then there would be no limit to the Public Officers who came under Section 7 of Decree No. 10. He, therefore, submitted that the  two Decrees are separately read and that Section 4 of Decree No. 10 of 1976 should not be read along with Decree No. 37 of 1968. In his final submission, therefore, he stated that the appellant should not be considered as coming under Decree No. 10 of 1976. This argument cannot be accepted in view of the provisions of the Decrees themselves.

First of all I wish to state that Decree No. 37 of 1968 has been repealed. Decree No. 10 of 1976 is an existing law and cannot be contradictory to any other repealed Decree since this action was filed on the 2nd of October, 1979. Perhaps, it is necessary to list out the following Decrees and their present positions:-

(a)    Public Officers (Special Provisions) Act No. 10 of 1976 is an existing law.

(b) Investigation of Assets (Public Officers and other Persons) Decree No. 37 of 1968 has been repealed with effect from 30th September, 1979 by Decree 105 of 1979.

(c) the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. This Decree has been repealed with effect from 30th of September, 1979.

(d) Tribunals or Inquiries (Validation etc.) Decree No. 18 of 1977 is an existing law.

Learned counsel for the respondent has drawn my attention to the period covered by Decree No. 37 of 1968 and the period covered by Decree No. 10 of  1976.

If one reads Section 4 of Decree No. 10 of 1976, it is quite clear that the period intended to be covered by the tribunal in this appeal is from 29.7.75 to 1st July, 1976. I do not agree with the restriction placed on the interpretation by the counsel for the appellant. See Section 4 of Decree No. 10 of 1976 which reads:-

“4. The Investigation of Assets (Public Officers and other Persons) Decree 1968, or so much of that Decree as the appropriate authority may direct, shall apply in respect of investigations, into and forfeiture of, the assets of a public officer under this Decree to the same extent as it applies in respect of an inquiry conducted under that Decree but shall, for the purposes of this Decree, have effect as if –

(a) the references in the Decree of 1968 to the appropriate authority were references to the appropriate authority under this Decree; and

(b)  the references in that Decree to a tribunal of inquiry and the chairman of a tribunal of inquiry were references to a panel constituted pursuant to Section 3 of this Decree and Chairman of that panel, respectively.”

If that is so, therefore, the appellant has been properly dealt with.

Reference by counsel to Section 6 of the Interpretation Act is irrelevant. The main point which this appeal must be decided upon, is what is the effect of Section 6 of the Constitution of 1979 especially of Section 6 subsection 6(d). The effect of the forfeiture of the appellant’s properties, having regard to the existing laws, viz, Decree No. 10 of 1976, Edict No. 10 of 1977 and Decree No. 18 of 1977 and Section 6 subsection 6(d) of the  Constitution, is that the forfeiture is valid. Section 6 subsection (6) (d) of the 1979 Constitution reads:-

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”

That disposes finally of all the extensive arguments of learned counsel for the appellant and the appeal completely fails.

The judgment of the High Court of Bendel  State, (Ekeruche, CJ.) and the Federal Court of Appeal in Benin are hereby upheld. The orders made by the lower courts are affirmed and the appeal to this court is hereby dismissed with costs of N300.00.

A. G. IRIKEFE, J.S.C.: I had the advantage of a preview of the judgment just read by my learned brother, Sowemimo, JSC., and also that of my learned brother, Idigbe, JSC., to be hereafter read.

While agreeing with the main thrust of the reasoning as well as the conclusions reached in the said judgment, I wish to comment briefly on certain aspects of the case, for the purpose of emphasis.

Under the 1963 Constitution particularly under Section 161 thereof, ouster of the court’s jurisdiction was limited to persons holding the office of President or Governor of a Region as well as to Chieftaincy matters. But with the advent of a military regime in the country, the exclusion clause found its way into several legislations, three of which are relevant to this appeal, namely:-

Decree No. 37 – The Investigation of Assets (Public Officers and other Persons) Decree, 1968; Decree No. 10 – Public Officers (Special Provisions) Decree – 1976 and Decree No. 18 – Tribunals or Inquiries (Validation) Decree – 1977.

Under Decree No. 37 of 1968 the court’s jurisdiction is ousted under Section 12; under decree No. 10 of 1976 the ouster clause is to be found in Section 6 while under Decree No. 18 it is to be found in Sections 1(2) and 3(2). The wording of the exclusion clause is almost identical in each case.

It seems to me that there was a deliberate and conscious effort on the part of the military regime to exclude access to the court in a number of their legislations. It could not therefore have been an act of dereliction of duty that the appellant herein did not seek to assert his rights while the military were in power. If he had chosen to go to court in the face of the clear prohibition spelt out in the decrees above, his efforts would have yielded no beneficial results. This must explain why he had to wait until one day after the 1979 Constitution came into force before filing this action.

Section 4 (8) of the 1979 Constitution provides against ouster of the court’s jurisdiction. It reads:-

“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” (Underlining mine).
Learned counsel appearing for the appellant had argued that Section 3 (1) of the 1976 Act was unnecessary as the 1968 Act had made provisions for a like situation. He then argued that in a situation where a later enactment is capable of more than one meaning the court should adopt a meaning which would not reduce an earlier enactment on the same subject matter to silence. I agree that, as stated by my learned brother, Uwais, JSC., whose draft I have also read, this argument is not available to the appellant on the 1968 Act vis-a-vis the 1976 Act as the former had been expressly repealed in 1979 before the 1979 Constitution had its life. Therefore, within the intendment of Section 274 of the 1979 Constitution, the Act of 1968 cannot be an existing law.

I agree that Act No. 18 of 1977 spent its force in September of that year. I also agree that Act No. 10 of 1976 not having been expressly repealed as on 30th September, 1979 saw life as an existing law on the coming into force of the 1979 Constitution but immediately thereafter died a natural death by being void for inconsistency with Section 4(8) of the said Constitution.

There is no doubt in mind that while the military were in power, although certain sections of the 1963 Constitution were left in force, it was nevertheless clear that such sections were to be subservient to the provisions of their Decrees. This is borne out by the provisions of Section 14(2) of Act No. 32 of 1975 which reads:-

“(2)  The provisions of the Constitution of the Federation and of the States not suspended by Decree No. 1 of 1966 to the extent that those provisions were in force immediately before the commencement of this Decree, shall continue in force as modified or amended by Decree No. 1 of 1966 or any other Decree but shall for the avoidance of doubt, have effect subject to this Decree.”

At the end of their rule, they handed down a constitution wherein they made certain that future administrations would not be given a free hand to dig up skeletons of any legislation with which they were involved for scrutiny. This is the purport of Section 6(6)(d) of the 1979 Constitution. Had the appellant been mindful of this provision, he would no doubt have realised that he stood to gain nothing from waiting till 2nd October 1979 before initiating these proceedings.

I would also dismiss this appeal and adopt the order made as to costs by my learned brother, Sowemimo, JSC.

C. IDIGBE, J.S.C.:  I have had the advantage of a preview of the judgment which has just been read by my learned brother, Sowemimo, JSC., and I agree with him that this appeal should be dismissed. However, as I consider that this appeal raises very important constitutional issues, I have decided that apart from endorsing the views expressed in the judgment just read, I should also make detailed observations of my own in this judgment in respect of  those very important issues of constitutional law raised in these proceedings.

By instrument No.89/90 published in the Bendel State Gazette No. 14, Volume 14 of the 14th day of February, 1977, pursuant to Bendel State Gazette notice No. 84 of 1977, the  Military Governor of Bendel State, Commodore Husaini Abdullahi, in exercise of the powers conferred on him under Section 3 of the Public Officers (Special Provisions) Decree of 1976, No. 10 of 1976 (now, Act No. 10 of 1976) – hereinafter referred to simply as “Decree No.10 of 1976” – appointed a panel, The Maidoh Assets Verification Panel (hereinafter referred to simply as “the  Maidoh Tribunal”), to probe the assets of certain persons, natural and legal, whose names, including that of the appellant, were set out in the  schedule of the said instrument; and the terms of reference of this panel were also set out therein. This instrument which shall hereafter be referred to simply as “Instrument No. 89/90” although published on the 14th day of February,  1977, was “to be deemed to have come into force on 24th January, 1977”. The terms of reference required, inter alia, that  the Maidoh Panel should (a) “examine and verify the assets and income of public officers and persons—-listed in the schedule—- during the period 1st January, 1966, to 30th September, 1975—-; (c) determine whether——–any officer, person or organisation, investigated by the Panel, has  been enriched beyond his legitimate earning; (d) determine the extent to which there has been such enrichment beyond the legitimate earning of such officers, persons —–; and (g) arising from its findings within one month of the date on which the panel held its first meeting —-make recommendations as it may deem necessary to the Government:-

as to what should be done by the Government by way of forfeiture or otherwise with the excess enrichment or assets of any officer, person or organisation;
(ii)  as to what further action should be taken by Government in relation to such officer, person or organisation” (underlining by me).
Having carried out its assignment, the Maidoh Tribunal duly submitted its report to the Military Governor  of Bendel State; Part V of the said report (exhibit 2, in these proceedings) concerns the appellant. As states in exhibit 2, the Maidoh Tribunal found the sum of N43,407.89 as being “the excess expenditure over income” of the appellant; and in addition, it recommended that the appellant “should forfeit to the State Government in the public interest and full satisfaction of his over-richment” certain of his properties set out in the schedule aforesaid. On the basis of this report, the Military Governor of Bendel State (hereinafter referred to as “the Bendel State Governor”) promulgated on 19th July, 1977, the public Officers and Other Persons (Forfeiture of Assets) No.2 Edict of 1977 – No. 10 of 1977 (hereinafter referred to simply as “Edict No. 10 of 1977”). So far as it concerns the appellant, the operative part of this Edict (paragraph 2 thereof) provides:

“(2) The properties specified in the second column of part I of the schedule to this Edict being the assets of the persons named in the first column of that schedule are hereby forfeited to, and shall vest in, the persons specified in the third column of that schedule free from all incumbrances without any further assurances.”

The effect of Section 2 Edict No. 10 of 1977 is that the landed property of the appellant at No.9. Omoregie Street in Benin City and another at Plot X 75, G. R. A., Benin City, became forfeited to the Bendel State Government. It is, perhaps, desirable to mention at this stage that in accepting the report of the Maidon Tribunal, the Government of Bendel State decided not to forfeit to the State any property which the appellant – who is known to have retired from the public service of Bendel State on 1st July, 1972, – acquired after his said retirement. There is neither evidence nor averment in the appellant’s pleading that, prior to the coming into force of the 1979 Constitution of the Federal Republic of Nigeria (hereinafter referred to simply as “the 1979 Constitution” or ” the Constitution aforesaid”) (i.e in October, 1st, 1979, over two years after the promulgation of Edict No.10 of 1977), he took any step to recover his property,  to challenge or protest the action of the Bendel State Governor or Edict No. 10 of 1977. On the 2nd day of October, 1979, however, the appellant commenced these proceedings claiming against the respondents – i.e. the Attorney General of Bendel State, (2) Mr. Justice Maidoh, (3) rone Orugboh, (4) Chief O. M. Uloho and (5) Suru Akele (Nos. 2-5 being members of the Maidoh Tribunal) – as per his amended statement of claim:-

“(1) A declaration that the Maidoh Assets Verification Panel [i.e. the Maidoh Tribunal] exceeded its jurisdiction in that it failed to determine the issue contained in its terms of reference according to law.

(2)  A declaration that the Maidoh —-Panel exceeded its jurisdiction in that it heard and received evidence and or representations from a number of persons behind the back of the plaintiff [i.e. the appellant herein and thus failed to observe the rules of law and that of natural justice.

(3)  A declaration that as a result of (1) and/or (2) the recommendations of the Maidoh—Tribunal are a nullity, void and of no effect.

(4)  Perpetual injunction to restrain the defendants [i.e. the respondents herein] whether by themselves, public servants or agents or otherwise howsoever from entering, trespassing, using or remaining on or  continuing in occupation of the plaintiff’s property at No. 9, Omoregbe Street—— Benin City” [square brackets and contents therein by me].

The respondents, by their amended statement of defence, raised important issues of law in paragraphs 17, 18 and 19 which read:

“(17)  The defendant  in answer to all the claims —— will at or before the hearing of this suit raise by way of preliminary objection on point of law the issue that the  court has no jurisdiction to entertain this  suit by reason of the provisions of the Tribunals or Inquiries  (Validation etc.) Decree 1977 (Decree No. 18 of 1977 particularly  Sections 1, 2, 3, of the said Decree.

(18)   In addition to paragraph 17 above, the defendants will further contend that by reason of the provisions  of the said —–Decree particularly Section 2(1) (a) and 2(2) this action is void and should be so declared.
(19)  The defendants in addition to paragraphs 17 and 18 above will also contend that by virtue of the Constitution of the Federal Republic of Nigeria, 1979; particularly Section 6(6) (d) and also the provisions of the Investigation of Assets of Public Officers (Special Provisions) Decree 1968 and the Public Officers (Special Provisions) Decree (sic) 1978 [but read, 1976] this action is not  maintainable and should be dismissed or struck out” (Square brackets and contents therein by me).

I think it is convenient at this stage to set out the relevant section of the laws referred to in the above paragraphs of the statement of defence as well as other relevant provisions of both the 1979 Constitution and other decrees and  Laws to which reference will  be made in this judgment; and these include

(1)  the Interpretation Act 1964 Section 6:,

(2)  the 1979 Constitution (Sections 1(3), 4 (1), 4(7), 4(8), 6(1), 6(2), 6(6) (d), 274(1) (a), 274(b), 274(3) (a), (b), (c), (d), 274(4) (b) and 277(1) and (4);

(3)  Decree No.10 of 1976 (Sections 3(1), 4, 6(3) and (4), 7(1));

(4)  Decree No. 37 of 1968 (Section 13 (1) (a));

(5)  The 1963 Constitution of the Federation No. 20 of 1963 (Section 1);

(6)  Decree No. 1 of 1966 i.e The Constitution (Suspension & Modification) Decree (Section  6(3)(4) and the amendment to Section 1(2) as set out in Schedule 2).

I pause, however, to mention that in March, 1977, the Federal Military Government promulgated The Tribunals or Inquiries (Validation etc.) Decree No. 18 of 1977 (hereinafter referred to simply as “Decree No. 18 of 1977”)- dated the 18th day of March, 1977 but therein stated to “be deemed to have come into effect on 29th July, 1975.” It is, indeed, a very short enactment but the relevant sections, so far as these proceedings are concerned, are 1, 2, 3 and 4(1) and they read:-
“1(1)  where on or after the commencement  of this Decree (but before 30th September, 1977) the appropriate authority in a State has instituted any tribunal or inquiry (howsoever described or constituted) –

(a)   to inquire into any matter concerning the administration of the affairs of any person or anybody —-in the State; or

(b)  xxx

(c)   to inquire into the conduct of any person whether or not a public officer of the State in so far as it concerned any matters mentioned in paragraph (a) or (b) above; or

(d)   to inquire into any matter whatsoever in the State,

the tribunal or inquiry as aforesaid shall notwithstanding anything to the contrary in any enactment, law or rule of law, be deemed to have been validly instituted  or constituted.

(2)The question whether any tribunal or inquiry to which subsection (1) of this section relates, was or has been validly instituted or constituted, or whether any law or Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such question the action or other proceeding shall be void.

2(1)Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which Section 1 of this Decree applies respecting –
(a)    the forfeiture or other disposal of the property of any person; or

(b)    the dismissal, retirement or any other exercise of disciplinary control over any public officer of the State—-

shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.

(2)    The question whether any Edict or subsidiary instrument or any act or thing done to which subsection (1) of this section relates was validly made or done shall not be inquired into in any  court; and if any action or other proceeding whatsoever has been instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void.

3(1)  For the purposes of Section 1 or 2 of this Decree it shall be immaterial –

(a)    that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power, or that any act or thing done was expressed as having been done in exercise of any power conferred under any particular law
(b)xx
(c)xx
(2)Without prejudice to the foregoing provisions of this Decree Chapter III of the  Constitution of the Federation [i.e the chapter dealing with Fundamental Rights of the citizen] is hereby suspended for the purpose of this Decree and no question whether any provision thereof has been or is being or would be contravened by anything done—– in pursuance of this Decree shall be inquired into in any court of law—-
4(1)  In this Decree –

“appropriate authority” means the Military Governor of a State—-”
(square brackets and contents as well as underlining by me).

Interpretation Act No. 1 of 1964

“6(1)The repeal of an enactment shall not –

(a)revive anything not in force or existing at the time when the repeal takes effect;

(b)affect the previous operation of the enactment or anything duly done or duly suffered under the  enactment;

(c)affect any right, privilege or liability accrued or incurred under the enactment;

(d)xx
(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture—–may be imposed, as if the  enactment had been repealed” (underlining by me).

1979 Constitution:

“1(3)  If any other law is inconsistent with the  provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.

4(1)   The legislative powers of the Federal Republic shall be vested in a National Assembly for the Federation—-
4(7)  The House of Assembly shall have powers to make laws for the peace, order, and good government of the State——–

4(8)  Save as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts the jurisdiction of a court of law or of a judicial tribunal established by law.

6(1)  The judicial powers of the Federation shall be vested in the court to which this section relates, being courts established for the Federation.

6(2)  The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(3) xx
(4) xx
(5) xx
6(6)  The judicial powers vested in accordance with the foregoing provisions of this section –
(a) xx
(b) xx
(c) xx
(d)    shall not as from the  date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after the 15th January, 1966, for determining any question as to the competence of any authority or person to make any such law.
274(1)   Subject to the provisions of this constitution an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this constitution and shall be deemed to be

(a)   an Act of the national Assembly to the extent that it is a law with respect to any matter which the National Assembly is empowered by this Constitution to make laws; and

(b)   a law made by a House of Assembly to the extent  that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2)  xx
(3)  Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say –

(a)  any other existing law;

(b)  a law of a House of Assembly;

(c)  an act of the National Assembly;

(d)  any provision of this Constitution.

(4)  In this section the following expressions have the meanings assigned to them, respectively –

(a)  xx
(b)  ‘existing law’ means any law and includes any rule of law or any enactment or instrument whatsoever which is in force or which having been passed or made before the date when this section comes into force or which having been passed or made before that date comes into force after that date;……..

277(1)  In this Constitution unless it is otherwise expressly provided or the con otherwise requires    xx      xx                           xx xx xx ‘existing law’ has the meaning assigned to it in Section 274 of this Constitution.” (Underlining by me)
277(4)  “The Interpretation Act 1964 shall apply for the  purposes of interpreting the provisions of this Constitution.”
Decree No. 10 of 1976

“3(1)   For the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself or any other person, the  appropriate authority [i.e. the Military Governor of a State -see Section 7(2)] may constitute a panel to conduct an investigation into any matter with which the officer has been concerned in the performance of his duties or to conduct an investigation into the assets of the public officer.

4(a)  The Investigation of Assets (Public Officers and Other Persons) Decree 1968, or so much of that Decree as the appropriate authority may direct, shall apply in respect of investigation into, and forfeiture of, the assets of a public officer under this Decree to the same extent as it applies in respect of an inquiry conducted under that Decree—–

6(1)  xx
(2)    xx
(3)    No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.

(4)    Chapter III of the Constitution of the  Federation [i.e. the chapter dealing with Fundamental Rights of the citizen] is hereby suspended for the  purpose of this Decree, and no question whether any provision thereof has been or is being or would be contravened  by anything done—— in pursuance of this Decree shall be inquired into in any court of law.
7(1)  In this Decree ‘public officer’ means any person who holds or has held any office in –

(a) the public service of the federation within the meaning of the Constitution of the Federation; or

(b) the public service of a State within the meaning of the corresponding provisions of the Constitution of that State;
(c) xx
(d) xx
and, for the purpose of this Decree only, includes any person who at any time before the commencement of this Decree held office as a member of the Supreme Military Council or the Federal Executive Council or as a Military Governor (or Administrator) of a State or as Commissioner in the Government of the Federation or of a State.” (Underlining and square brackets by me.)

Decree No. 37 of 1968: i.e., Investigation of Assets (Public Officers and Other Persons) Decree:

“13(1)   In this Decree, unless the con otherwise requires, – public officer’ means –

(a)    any person who on or after 1st October, 1960, holds or has held any office in any of the public services of Nigeria;” (underlining by me).

The 1963 Constitution of the Federal Republic of Nigeria No.20 of 1963:

“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.”
Schedule 2 to Decree No. 1 of 1966: Constitution (Suspension and Modification) Decree:

Section 1:

“Provided that this Constitution shall not prevail over a Decree, and nothing in this Constitution shall render any provision of a Decree void to any extent whatsoever.” (Underlining by me.)

Decree No. of 1966:-

Section 6:

“No question as to the validity of this or any other Decree or any Edict shall be entertained by any court of law in Nigeria….

“3(4) If any law –

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

(b)    made after that date by the Military Governor of a Region,

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  Regional law [or Edict] shall to the  extent of the inconsistency, be void” (Underlining, square brackets and contents therein by me).

Having set out the relevant laws and sections thereof to which references will be made in this judgment, I will proceed anon with the events in these proceedings which resulted in this appeal.
At the trial, the appellant gave evidence and called three witnesses; he put in evidence some documents he considered relevant to his claims. On 11th June, 1980, after the appellant’s case had closed, the learned trial Judge with the consent of counsel on both sides set down for hearing and argument the preliminary points of law  raised in paragraphs 17-19 of the  respondents’ pleading (the amended statement of defence); and on the 10th day of September, 1980, he ruled on the arguments and submissions thereon. In his ruling, the learned trial Judge (Ekeruche J., as he then was) held inter alia that the high Court of Bendel State cannot entertain the claims by virtue of the provisions of Section 6(3) of Decree No. 10 of 1976; he further rejected the submission on behalf of the appellant that he (the appellant) was not amenable to the jurisdiction of the Maidoh Tribunal because, having left the “Public Service” of the Bendel State on 1st July, 1972 he was not a “public officer” within the purview of Decree No. 10 of 1976 under which the “subsidiary instrument” – Instrument No.89/90 of 1977 – which set up the Maidoh Tribunal was made.

Dissatisfied with the ruling of the High Court, the appellant appealed to the Federal Court of Appeal (hereinafter called “the Court of Appeal”) which on the 22nd day of September, 1981 dismissed the said appeal. This appeal is from the said judgment of the Court of Appeal (Mamman Nasir P, Omoigberai Eboh, James Ete, Abdul Agbaje, & Rowland Okagbue, JJCA).

The grounds of appeal filed and argued in this court and , in my view, deserving of our attention and consideration (beginning with those filed by junior counsel), read:-

“(1)  The learned Justices of the Federal Court of Appeal erred in law in holding that the appellant came under the definition of ‘Public Officer’ under Section 7(1) of the Public Officers (Special Provisions) Act 1976

PARTICULARS  (of error in law)

(a)    The intention of the Act under Sections 1, 2, and 3 was to facilitate improvement in the organisation of department or service to which a public officer belongs and as a result provided for the dismissal, removal or compulsory retirement of some public officers and the investigation of their assets.

(b)    The date of commencement of the Act was 29th July, 1975 (Section 8) and the said removal must  have taken place between July 29th 1975 and 1st day of January 1976 – Section 1 (d).

(c) xx
(d) xx
(3) The learned Justices of the Federal Court of Appeal misdirected themselves in law when they failed to draw a distinction between jurisdiction and applicable law

Particulars (of misdirection)

(a)  The Federal Court of Appeal failed to consider adequately the effect of Section 4(8) and 274 of the Constitution on existing laws, and Section 6 on the powers of the (sic) Judicial (read: Judiciary). Had they done so, it would have been clear that (the) restriction placed by (the) ouster clauses by any law except the Constitution in certain cases, have ceased to have effect.

(b) (sic) By holding that ouster clauses in various Acts and, in particular (in the) Public Officers (Special Provisions) Act 1976, Tribunal or Inquiries (Validation etc) Decree Assets (Public Officers and Other Persons) Decree 1968——are still applicable, (sic) defeat the object of Section 4(8) and 274 of the Constitution.

(c) The effect of (a) and (b) above is that the courts now have jurisdiction to inquire whether the applicable laws existing at the time an act was done, were complied with.” (brackets and contents mine.)
Further grounds of appeal filed by Chief Rotimi Williams, SAN., read:-

“The learned President of the Federal Court of Appeal erred in law in holding as follows:
‘As all the grounds and actions giving rise to this suit had arisen out of the actions of the Military Governor and the Panel, and these actions were all done and completed before the Constitution came into force, I am of the considered opinion that the Constitution has not revived any of the rights of the appellant which had otherwise been ousted by the various legislation heretofore discussed’

(b)    ‘As stated earlier on in this judgment the right of and the obligations of the parties must be considered in this court and in the lower court in the light of the provisions of the law as it was when the cause of action arose’

Particulars of Error

(i)  Section 2(1) of Act No. 18 of 1977 does no more than provide a shield of defence in the event of an action challenging the validity of ‘any Edict or subsidiary legislation and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry’ respecting ‘ the  forfeiture or other disposal of the property of any person.’

(ii)  According to the correct principles of statutory interpretation and on the true meaning of Section 6(2) of the Interpretation Act, 1964, the effect of a statute which provides a defence in particular circumstances is that the plaintiff cannot exert his rights in those circumstances so long as the statute remains in force.

(iii) In the absence of express words the provision of a statute as aforesaid does not mean that the plaintiff’s rights are forever destroyed and cannot ever be revived by a repeal of the statute or an amendment thereof.

(iv)   xx
(v)    The benefit conferred by Section 2(1) of Act No. 18 of 1977 on a person defending a challenge to the validity of a forfeiture order is not a ‘right accrued’ under Section 6(1) (c) of the Interpretation Act.
(vi)   xx
(vii)  xx
Arguing the appeal from the judgment of the Court of Appeal, learned Senior Advocate, Chief F. R. A. Williams, said that, in a nutshell, he was attacking the decision of the lower courts on two principal grounds. The lower courts, he submitted, were wrong in holding that (1) the High Court had no jurisdiction to entertain the claims of the appellant and, (2) the order of forfeiture of the assets of the appellant pursuant to the provisions of Edict No. 10 of 1977 had been validated by Decree No. 18 of 1977. Edict No. 10 of 1977 itself was, in his submission, invalid. Further, he submitted that the Court of Appeal was in error in the manner of its application of the provisions of Section 6(1) of the Interpretation Act No. (1) of 1964 to the provisions of Decree No. 18 of 1977. In a nutshell, that was  the argument on behalf of the appellant but I will examine them, in detail, anon.

JURISDICTION: The submission on behalf of the appellant in this connection is that notwithstanding the provisions for ouster of jurisdiction of the courts in (a) Decree No. 18 of 1977 and (b) Decree No. 10 of 1976, the courts in this country, at the time the issue of jurisdiction was raised in these proceedings by the respondents (i.e. in September, 1980), had and still have the necessary jurisdiction to entertain the claims in these proceedings by reason of the fact that the 1979 Constitution was already in force and the provisions of Section 4(8) thereof rendered the said provisions for ouster of the jurisdiction of the courts in both Decrees (i.e. Nos. 10 of 1976 and 18 of 1977) invalid. According to learned counsel for the  appellant, the issue of the jurisdiction of a court has to be considered with respect to the matter or proceedings in hand, on the basis of the law applicable to the said proceedings at the time the issue of jurisdiction was raised; and this has to be done without any reference to the subsidiary question, whether there is a valid or existing cause of action Learned counsel for the appellant contends that, notwithstanding the ouster provisions in the Decrees aforesaid, the appellant had a right (which he did not exercise until October 2nd 1979) to challenge, in court, the action of the Military Governor of Bendel State in forfeiting his assets to the State; had he exercised that right prior to October 1st 1979 the ouster provisions aforesaid would have availed the respondents qua defendants; unless and  until the appellant exercises that right of challenge by legal proceedings, the respondents cannot avail themselves of the ouster provisions aforesaid. The position is, however, different in October 1979 because, as learned counsel further submits, although the said Decrees (i.e Nos. 10 of 1976 and 18 of 1977) were not expressly repealed by The Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Decree 1979 – hereinafter referred to simply as “Decree No. 105 of 1979” – they were, in law, impliedly repealed by the 1979 Constitution; in any event, he contends, the said Decrees (i.e. Nos 10 of 1976 and 18 of 1977 did not survive as “existing laws” under Section 274(b) of the Constitution aforesaid. In the circumstances, the ouster provisions in the said Decrees cannot now avail the respondents qua defendants in any legal  proceedings, commenced since the 1979 Constitution came into force, which seek to challenge the exercise, by the Bendel State Governor, pursuant to Instrument No. 89/90 of 1977 and Edict No. 10 of 1977. In the alternative, learned counsel contends that, on the premise of his submission that the said Decrees (i.e. Nos. 10 of 1976 and 18 of 1977) are impliedly repealed, the exercise of the Maidoh Tribunal and the consequential order for forfeiture based on the report of that tribunal cannot be “validated” by or accorded protection under, the provisions of Section 6 of the Interpretation Act No.(1) of 1964. Finally, the submission on behalf of the appellant is that the two Decrees -Nos. 10 of 1976 and 18 of 1977- are, each, invalid; and the courts today can entertain the proceedings in this appeal. The above is the sum of the argument on behalf of the appellant on the principal issue of jurisdiction of the Bendel State High Court to entertain the claims in these proceedings.

See also  Joseph Adebayo Osagunna V. The Military Governor Of Ekiti State & Ors (2001) LLJR-SC

The argument which relates to the validity of Instrument No.89/90 of 1977 setting up the Maidoh Tribunal is that, in establishing that tribunal, the Bendel State Governor purports to act under Section 3 of Decree No 10 of 1976 which, in the words of learned counsel for the appellant, “was an ex post facto law meant for limited purpose and fully spent as soon as it was enacted”; and “it (therefore) had no prospective operation, its operation being limited in time to 1st January, 1976.” In order to appreciate the argument of learned counsel on this issue, it is necessary to draw attention to Sections 1, 7 and 8 of Decree No. 10 of 1976 (the s of which have been fully set out earlier on) and to the additional fact that at the date when it was promulgated there was already in existence Decree No.37 of 1968 – The Investigation of Assets (Public Officers and Other Persons) Decree, 1968 – a much more comprehensive legislation for probing the assets of public officers. By Section 8 of Decree No.10 of 1976, it is provided that the Decree shall be deemed “to have come into operation on 29th July, 1975”; and by Section (1) thereof, it is provided that the “appropriate authority” may at any time “before 1st January, 1976” dismiss or remove a public officer summarilty from office or require such officer if satisfied that such officer has engaged in corrupt practices or has in any way corruptly enriched himself. Section 3 of this Decree (earlier set out) empowers the “appropriate authority” (in the case of Bendel State, the Military Governor) to set upn a panel if and when necessary to probe the assets of a public officer in order to ascertain whether such officer has corruptly enriched himself or has engaged in corrupt practices; similar provisions exist in the 1968 Decree i.e. No.37 of 1968 aforesaid. A close examination in the definition of the expression “public officers” in both Decrees, however, shows clearly that the definition in respect of such officer in Decree No.10 of 1976 is much wider than that set out in the 1968 Decree. In the earlier Decree, while the definition fails to include members of the top echelon of the Military set-up who held office in both Federal and State Military Governments, it also limits the  public Officers who can be probed under that Decree to those officers who on or after the 1st day of October, 1960, held office in the public services of the country. I pause to observe that as stated earlier, the appellant retired from the public service of Bendel State on 1st July, 1972. It is argued on behalf of the appellant that Section 3 of Decree No.10 of 1976 “added nothing new to the existing law (i.e. the 1968 Decree) in so far as ‘public officers’ covered by the 1968 Decree were concerned”(note: brackets and underlining in this quotation from counsel’s argument are added by me for emphasis]. The section (i.e. 3 of No. 10 of 1976), it is further argued, “is unnecessary as a law to make provision for the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself”; and this is because the 1968 Decree has already “made adequate provisions for such purpose.” Accordingly, the submission has been made on behalf of the  appellant that” it would seem that Section 3 of the 1976 Decree, if read as a law of wider application than one designed to deal with acts and things done between 29th July, 1975, and 1st January, 1976, is inconsistent with the 1968 Decree which deals with the same subject matter.” I must pause once again to observe that I found it difficult to find any such inconsistency.
However, in furtherance of his contention, learned counsel for the appellant submits that “whenever a situation arises where a subsequent enactment is capable of more than one meaning the court would prefer the  meaning which would not reduce the earlier enactment to silence;” and he added that “this would be so even if it means preferring some other meaning to the plain grammatical construction of the words of the enactment.” We were then referred to the  observations of Brett, MR., in queen  v. Overseers of Tonbridge (1884) 13 QBD 339 at 342; Buckley, LJ., in Western Bank Ltd. v. Schindler (1977) Ch D 1 at 13/F to 14A and Lord Reid in Luke v. Inland Revenue Commissioners (1963) AC 557 at 577. The definition of a “public officer” in Section 7(1) of Decree No. 10 of 1976, he contends, must be read in a way that should not be inconsistent with that given in the 1968 Decree (see Section 13 thereof); the only innovation to be allowed in the definition in the latter Decree must be the inclusion of a limited class of public officers mentioned in the last portion of the said Section 7(1) (i.e. the members of the top echelon of the Military set-up who served in the Military Governments). If the respondents’ argument is valid (i.e. if a wider meaning must be given to the express definition of the expression ‘public officer’ as in Section 7(1)) learned counsel then asks: how far back does one go in bringing in any person who literally, ‘had held’ office in the public service—— It is unthinkable, he submits, that “the Military Government in fact intended to extend the class of persons whose conduct or assets were to be probed to any date whatever thereby bringing in all pensioners. The result of such a construction even if supported by a literal reading of the statute ought to be avoided.”

I am in respectful agreement with observations in the three cases cited by learned counsel for the appellants (Overseers of Tonbridge (Supra), Western Bank Ltd. v. Schindler (Supra) and Luke v. Inland revenue Commissioners (Supra)), but with all respect to him, his submission is on the basis that the provisions of Section 7(1) (a) of Decree No. 10 of 1976, with respect to the expression, “has held”, are capable of “more than one meaning” and that if given its literal grammatical construction, the earlier statute or enactment – i.e, the 1968 Decree – would “be reduced to silence.” In order to determine the meaning of any expression or phrase in an enactment “the first question to ask always is what is the natural or ordinary meaning of the words used therein in the con in the statute;” and it is only when the ordinary meaning of those words leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it becomes proper to look for some other possible meaning of the words concerned. See: Lord Reid in Pinner v. Everett (1969) 3 All ER 257.) The expression “has held” in Section 7(1) aforesaid means only what it says; it is true, that there is no limitation as to the  period wherein such public officer (i.e. who held any of the offices set in the sub-paragraphs) served, but I see no absurdity in so construing the phrase if it reasonably supports the intention of those who promulgated the Decree; and I will proceed anon to consider the intention of the Supreme Military Council in promulgating the said Decree.

It is settled that in the interpretation of statutes, the interpreter may call to his aid historical facts which are necessary for comprehension of the subject matter; and for this purpose, the courts are not to be oblivious of the  history of the legislation in question, but the courts are, however, not at liberty to construe an enactment by the motives which influenced the legislature (see Maxwell: Interpretation of Statutes (1969) 12th edition pp. 47-48). Against the background of the above principles of interpretation of statutes, it will be recalled that Decree No. 37 of 1968 was promulgated during the Military Regime which came to power in July, 1966 (hereinafter referred to as “the Gowon Regime”); that by Section 13 of the said Decree the public officers intended to be probed were limited to those who held office since the country became independent in 1960, is understandable. Decree No. 10 of 1976 was promulgated during the second military regime which came to power as a result of a coup d’etat which took place while the  first military regime (the  Gowon Regime) was in power; that they also intended to extended the area of probe of assets to members of the first military regime is also understandable; and this can be gathered from their pronouncements (which can be judicially noticed by this court) they charged the Gowon Regime with maladministration. Their intention to extend the area of probe can clearly be gathered from the last clause in Section 7(1) of Decree No. 10 of 1976. It is also a fact of local history and of which this court can take judicial notice that upon assumption of powers of government in July, 1975 (to be precise, on 29th July, 1975) the second military regime (the Murtala Mohammed Regime) dismissed and removed from offices, several public officers perhaps randomly, who were in office many years prior to 1st October, 1960 i.e., those who held office many years before 1960. It was also clearly the intention of the Murtala Mohammed Regime, as is evident in the provisions of Section 1 of the said Decree, to probe any public officer (retired or in service) who has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person (see Section 1 (c) of the said Decree); a careful reading of Section 7(1) and Section 1 of the Decree makes this abundantly clear. The penalty to be meted to a public officer found to have unjustly enriched himself or engaged in corrupt practices is not confined to compulsory retirement or dismissal  from the public service (and it appears to me that the gravamen of the submission for the appellant that since the appellant is a retired public officer, Decree No. 10 of 1976 cannot apply to him, is based on this misconception); and this is because a public officer who has already retired may have already earned his pension rights. The penalty clearly extends to those provided in Section  8 (1) of Decree No. 37 of 1968, i.e., forfeiture of all  or part of the assets of such officer acquired in the said manner; and it is provided in Section 4 of Decree No. 10 of 1976 (earlier on set out in detail) that the provisions of Decree No. 37 of 1968 shall apply to an inquiry carried out under Decree No. 10 of 1976.

Finally, although side-notes or explanatory notes to statutes are principally to be ignored as aids to interpretation of statutes, (see Lord Reid in Chandler v. Director of Public Prosecutions (1964) AC. 763 at 789) “no judge can be expected to treat something which is before his eyes as though it was not there.” In the words of Upjohn, LJ., which I gratefully adopt and with which I am in respectful agreement, “while the marginal note to a section [and I would add, the side or explanatory note to an enactment] cannot control the language used in the section, it is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind” (see: Stephens v. Cuckfield Rural District Council (1960) 2 QB 373 at 383; also Sir Rupert Cross on Statutory interpretation, 1st ed. (1981 Reprint) p. 113: underlining, brackets and contents therein supplied by me). The explanatory-note to Decree No. 10 of 1976 reads:-

“The Decree relates to the recent removal from the public services of the Federation of persons falling within the category set out in Section 1 ——- Provisions are made providing for the constitution of panels to conduct investigations into any matter with which any public officer has been concerned, and applying the provisions of the Investigation of  Assets (Public Officers and Other Persons) Decree 1968 respecting the conduct of investigations and the recovery of public property unlawfully acquired——” (underlining supplied by me).

In the event, I must reject the submissions on behalf of the appellant that, having on 1st July, 1972, retired from the public services of the Bendel State, he was not a public officer within the purview of Section 7 of Decree No. 10 of 1976 and that so far as the appellant was concerned, it was not, therefore, open to the Bendel State Governor to establish Instrument No. 89/90 of 1977 and set up the Maidoh Tribunal to investigate his assets, and to promulgate Edict No. 10 of 1977 ordering forfeiture of his assets (based as it is on the report and exercise of the tribunal established under Instrument No. 89/90 of 1977). (A) Have the courts jurisdiction to entertain the claims in these proceedings (B) Is Section 6(3) of Decree No. 10 of 1976 available to the respondents

The contention on behalf of the appellant is that this sub-section did not survive as an “existing law” under the 1979 Constitution. Indeed, this is only part of the major submission that the Decree itself is invalid. I will deal later with the major submission, but for now I am concerned with the first question set out in the  title to this paragraph; thereafter, I will deal with the second question. The submission on behalf of the appellant that the issue of the jurisdiction of a court to entertain the claims before it has to be considered with respect to the applicable law to the proceedings at the time the issue is raised notwithstanding the subsidiary question whether there is a valid cause of action does not find favour with me. Learned counsel for the appellant argues that Sections 6(3) of Decree No. 10 of 1976 and 1(2) and 2(2) of Decree No. 18 of 1977 have been repealed by implication on the coming into force of the  1979 Constitution and consequently were not, on 1st October, 1979 “existing laws”; indeed, he submits that the  entire Decree No. 18 of 1977 is invalid. I will concern myself here only with the “ouster clauses” (i.e. Sections 6(3) of 10 of 1976, 1 (2) and  2(2) of 18 of 1977) which to my mind are germane to the issue of jurisdiction; and the validity of the entirety of the two Decrees will be considered when I deal with the submissions relative to the validation of the appointment of, and the exercise carried out by, the Maidoh Tribunal. The pith of the contention on behalf of the appellant is that the “ouster provisions” or “ouster clauses” of the two Decrees are not “existing laws” under Section 274 (4) (b) of the 1979 Constitution; and in any event, these provisions, being inconsistent with Section 4(8) of the Constitution aforesaid, must be regarded as repealed. It is, indeed, a settled principle of law that where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier (see: Paine v. Slater (1883) 11 QBD 120): and the courts lean heavily against implying a repeal except where the two acts are so plainly inconsistent or repugnant to each other that effect cannot be given to both at the same time, in which case it will imply a repeal. (See also: Dr. Lushington in The India (1865) 12 LT (new series) at 316). Now the provisions of Section 4(8) of the 1979 Constitution appear to me to be plainly incompatible with the “ouster provisions” of the two Decrees (Nos. `10 of 1976 and 18 of 1977) that they must be regarded as impliedly repealed. However, in considering the effect of the implied repeal  of the said provisions, the provisions of Section 6 of the Interpretation Act, 1964, must be examined closely. Much of the argument on behalf of the appellant turns on the question whether there was a “right accrued” in favour of the parties to these proceedings, at the time of commencement of proceedings. With much respect to learned counsel for the appellant, it appears to me that his argument on Section 6 aforesaid fails to take sufficiently into consideration the following issues:-

(a)    “liability incurred” by the appellant (Section 6 (1) (c)  of the Interpretation Act refers), under the Decree No. 10 of 1976 and Decree No.37 of 1968- which by Section 4 of Decree No. 10 of 1976 is to be presumed to have been applied to the investigations and report based thereon (i.e. the Maidoh Tribunal exercise and its report), and to the order for forfeiture (Edict No. 10 of 1977). Decree No. 37 of 1968 was expressly repealed, by Decree No. 105 of 1979 (i.e The Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree), some two years after the exercise of the Maidoh Tribunal and the order for forfeiture of the assets of the appellant.

(b)    “the previous operation” the enactments i.e. Decree Nos. 10 of 1976 and 37 of 1968; and “anything duly suffered” by the appellant under Decree No. 10 of 1976 and the repealed enactment No.37 of 1968 (Section 6(1) (b) of the Interpretation Act refers);

(c) ” any investigation——–in respect of any such liability” (Section 6(1) (e) of the Interpretation Act No. (1) of 1964 refers).

The rule of law relating to the effect at common law of the repeal of a statute is contained in two statements of much respected Judges of the common law courts – Lord Tenterden, CJ., and Tindal, CJ.,:-

(1)   “It has long been established, that  when an Act of parliament is repealed, it must be considered, except as to transactions past and closed, as if it had never existed” (Surtees v. Ellison 9 B & C 750 at 752 per Lord Tenterden, CJ) (underlining by me).

(2)   “The  effect of repealing a Statute is to obliterate it completely from the records of parliament as if it never  existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was in existence” (see: Kay v. Goodwin (1830) 6 Bing 576 at 583 per Tindal, CJ)
(Underlining by me).

These observations, indeed sum up the law today in England under Section 38(2) the Interpretation Act of 1889 the provisions of which are in pari materia with those of Section 6(1) of our Interpretation Act No (1) of 1964. In this connection, reference may be made to the cases of (1) Lemm v. Mitchell (1912) AC. 400; (2) Rimini v. Van Praagh (1872) 8 LRQB. 1; (3) Barnes v. Eddleston (1876) LR I Ex. 106; (4) Postlethwaite v. Kratz (1943) 19 TLR. 248. In Lemm v. Mitchell (1912) AC 400 a Hong kong Ordinance of 1895 had abolished the action for criminal conversation. A subsequent Ordinance of 1908 had repealed the Ordinance of 1895 and had by its retrospective effect given a right of action for criminal conversation committed before the enactment of the Ordinance of 1908. The plaintiff after 1908 brought an action against the defendant for criminal conversation committed before 1908, but it appeared that he had already brought such an action before the enactment of 1908 and in the then state of the law judgment had been given against him. It was held by the Privy Council that the judgment in the concluded action gave the defendant a vested right which was a bar to an action on the same facts brought after the Ordinance of 1908. Delivering the judgment of the Board, Lord Robson cited with approval the observations of Tindal, CJ., in Kay v. Goodwin (Supra). In Rimini v. Van Praagh (Supra) a debtor and his creditor entered into a deed of composition while the Bankruptcy Act of 1861 was in force and which by Section 164 provided that the effect of a discharge of a bankrupt was, that a promise to pay, or security given for a past debt, was rendered invalid. Subsequently, an Act of 1869 – 32 and 33 Victoria Cap. 83 – by the provisions of Section 20(1) thereof totally repealed the Bankruptcy Act of 1861; and after the said repeal the debtor gave a bill of exchange to one of his creditors, who was barred by the deed of composition, for his old debt. In an action brought on the bill of exchange it was held by the Judges of Exchequer Chamber (on error and appeal from the court of Queens Bench) – Cockburn, CJ.,; Harmen and Quain, JJ., – that the operation of Section 164 of the Act of 1861 aforesaid on the transaction was preserved by the “saving clause” in section 20 (i.e. of 32 and 33 Victoria Cap. 83); and accordingly, the bill was void. The saving clause aforesaid reads:-

“but this repeal shall not affect the past operation of any such enactment, or revive any court, office, jurisdiction, authority or thing abolished by any such enactment or affect the validity or invalidity of anything done or suffered before the commencement of this Act, or any right—– obligation or liability accrued or restriction accrued or restriction imposed before the commencement of this Act. —–” (underlining by me).

In the said decision, Quain, J., adopted with approval the observations (earlier quoted in this judgment) of Lord Tenterden in Surtees v. Ellison (Supra) (see 8 LRQB. at 5). In Barnes v. Eddleston (Supra). The Nuisances Removal Act, 1855 and Sanitary act 1866 provided a penalty for breach of an order under the Act to discontinue the sending forth of black smoke from chimneys in such quantity as to constitute a nuisance; and on the 24th day of May, 1875, an order to this effect made by justices was served on the respondent. On 11th August, 1875, the Public Health act came into force repealing the Nuisance Removal Act of 1855 and the Sanitary Act of 1866 (under which the order of the justices served on the respondent had been made). On 12th August, 1875, (a day after the said repeal) black smoke was emitted from the respondent’s chimney in such quantity as constituted a nuisance. The respondent having been summoned before justices for disobedience of the order, they (the justices) dismissed the summons upon the ground that the statute under which the order was made had been repealed on 11th August, 1875. Held on appeal that the order of the justices was “a liability” within the proviso in Section 343 of the Public Health Act, 1875. The relevant portion of the proviso to Section 343 reads:-

“this repeal shall not affect (a) anything duly done or suffered under any enactment hereby repealed; or (b) any right or liability, acquired or accrued or incurred under any enactment hereby repealed ———” (underlining by me).

In the lead judgment of the court – with which Grove and Field, JJ., concurred – Cleasby, B., observed:-

“I need not say that the order [ i.e of the justices served on the respondent] is a thing  duly done within the meaning of subsection (a) [of the proviso to Section 343] as it appears to have been contended before the justices; but  I think it created a ‘liability’ which subsection (b) [i.e. of the said proviso] has preserved——-The counsel for the respondent contended [as has to some degree been contended in the appeal in hand] that ‘liability’ means only exposure to penal consequences for an act done during the existance of the  repealed enactments. I cannot agree with this narrow construction; but I may remark that the respondent had committed a breach of law during the existence of the repealed enactment, and that justified the making of the order under which the liability was created—–”
(square brackets together with contents therein, as well as underlining by me).

Although repealed, the statutory defence under the ouster provisions aforesaid are, in my view, still available to the respondents in any action in court challenging the Maidoh Tribunal exercise, the tribunal’s report and the Edict based thereon; and the defence enures in favour of the respondents by virtue of subsections (1) (b), 1(c) and 1(e) of the Interpretation Act, 1964 and section 277 (4) of the 1979 Constitution. As regards the contention and submission of learned counsel for the appellant that when these proceedings commenced there was no “right accrued” in favour of either of the parties hereto, under Section 6(1) of the Interpretation Act, I take the view, with much respect to learned counsel, that the submission is based on a much too narrow view of the  legal expression “right”. If one looks, as indeed one is entitled to, at the statutory defence under Sections 6(3) of Decree No. 10 of 1976, 1(2) or 2(2) of Decree No. 18 of 1977 as constituting a “right” available and accruing to a defendant in any court action which seeks to challenge anything “duly done”, or any exercise “duly carried out” and /or a report “duty submitted” thereon, by such defendant under, and/or covered by, the said Decrees (whether the said court action commenced prior or anterior to the  repeal of the said Decrees) (in other words, if one looks at this statutory defence as a kind of right to immunity from prosecution in court either by way of criminal or civil proceedings), then it is difficult to find favour with the foregoing contention on behalf of the appellant. Support for this attitude can be found in a passage in the treatise on Jurisprudence by Salmond which reads:-

“These then are the four classes of rights conferred by law: right in the strict sense, when the law limits the liberty of others in my behalf; liberty, when the law allows my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective; immunity, when the law denies to others a particular power over me—–[in the narrow sense] an immunity is that which other persons cannot do effectively in respect of me.” (see Salmond: Jurisprudence 11th edition, Section 80 at p.277 (underlining, square brackets and contents by me.)

In any event, this view on “right accrued” is alternative to that expressed earlier by me, to the effect that the statutory defence under the ouster provisions aforesaid is available to the  respondents by reason of the fact that when the Maidoh Tribunal submitted its report on which Edict No. 10 of 1977 (forfeiting the appellants’ property to the State) was promulgated – some two years prior to the repeal of Decree No. 37 of 1968 under which also the Maidoh Tribunal carried out its exercise and submitted its report (Section 4 of Decree 10 of 1976 refers) – the appellant then “incurred” a liability and “duly suffered” the same; and it is on this view that I base my decision that by virtue of subsections 1(b) (1) (c), and 1(e) of Section 6 of the  Interpretation Act aforesaid the plea of ouster of jurisdiction of the High Court of Bendel State must prevail.

IS THE VALIDATION DECREE – N0. 18 OF 1977 VALID
IS DECREE NO.10 OF 1976 STILL VALID
The argument in respect of this aspect of the appeal is, in the words of learned counsel for the appellant, “that there can be no doubt whatsoever that neither the National Assembly nor the Bendel State House of Assembly has power to ‘validate’ unlawful compulsory acquisition or seizure of property by the Government. Accordingly, at the date when the appellant commenced these proceedings [i.e. a day after the 1979 Constitution came into operation] Decrees Nos. 18 of 1977 [and 10 of 1976] have ceased to be law.” Learned counsel concedes that during the military regime, the courts were prohibited from pronouncing on validity of a Decree but he submits that the courts can do so today and that Section 2 (1) of the 1977 Decree i.e No. 18 of 1977 has ceased to be law. The only limitation placed on the courts in respect of any inquiry into the  validity of any law made or deemed to be made by the legislature, he argues, is that placed on the judicial powers of the courts by Section 6(6) (d) of the 1979 Constitution; according to him the effect of the provisions of the said sub-section is that the validity of a Decree or Edict cannot be challenged on the ground of competence of the law-maker to make the law; but he contends, that the subsection “ought not to be construed as saying that the court has no jurisdiction to pronounce on the validity of a Decree or Edict.” Learned counsel, further, contends that the reference in the said sub-section to “existing law” “postulates that the  limitation on judicial powers is confined to such enactments as can properly be regarded as existing laws in accordance with section 274 of the Constitution”; so if a Decree or an Edict has been repealed expressly prior to the coming into operation of the 1979 Constitution or, by implication of law, by virtue of the provisions of the Constitution aforesaid such Decree or Edict cannot be regarded as an “existing law” within the  contemplation of Section 274 aforesaid. It is also the contention of learned counsel, in respect of Section 2(1) of Decree No. 18 of 1977, that while a legislature can make a  law “to validate or declare lawful that which was illegal at the time it was done” such power can only be  exercised in cases “where the legislature could have authorised the illegal act in the first instance”; support for this contention, he maintains, is to be found in the cases of (a) Mitchell v. Clarke 110 US  633; also 28 L. ed. 279; (b) Swayne and Hoyt v. US 300 US 297; also 81L. ed. 659. The question which naturally arises, learned counsel further argues, is “whether the Federal Military Government could have [validly] made a law stating that notwithstanding there was no valid investigation into the assets of the appellant to establish that he has unjustly enriched himself —- or had corruptly acquired property his assets may be confiscated for the benefit of the State” (square brackets supplied). Such an enactment in the view of learned counsel would, indeed, amount to what the Supreme Court  described in Lakanmi v. AG for Western Nigeria (1971) (1) UILR 201 at 220 as ‘legislative judgment’; this is because “the powers of the Federal Military Government throughout the military regime did not include judicial powers. Their powers were limited to making laws and executing those laws; (and) the forfeiture of property without compensation is a sentence which only a court can pass pursuant to the laws prevailing in the country and not otherwise” (brackets and underlining by me); again, support for this contention was, in the opinion of learned counsel, to be found in some judicial pronouncements one of which is the decision in Liyanage v. The Queen (1967) AC 259 at 290 and 291. The foregoing contentions and submissions on behalf of the appellant are, I apprehend, on the basis that:-

(1)  Instrument No. 89/90 of 1977 and Edict No. 10 of 1977 were invalid for the reason that they could not properly and lawfully have been founded on Decree No. 10 of 1976 (a proposition already given full consideration by me in the early portion of this judgment and the conclusion so far as concerns Instrument No.89/90 of 1977 is that, that instrument is valid’; and that it was not open to the Bendel State Governor to promulgate Edict No. 10 of 1977, on the report of the Maidoh Tribunal);

(2)  It is open to the courts today to examine, and pronounce on, the validity of a  Decree or Edict;

(3)  that Decree No. 18 of 1977 is, indeed, a “legislative judgment” or “legislative sentence”.

The correctness of these contentions will be examined anon.
Section 6(6) (d) aforesaid provides in clear terms that the judicial powers of the courts – which are neatly set out in sub-paragraphs (a), (b) and (c) of sub-section (6) of Section 6 of the 1979 Constitution – shall not extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 (the date, be it noted, when the Military seized power and took over the government of this country) for determining any issue or question as to the  competence of any authority or person to make any such law. What exactly does the expression “for determining any issue or question as to the competence of any authority —— to make any such law” mean What exactly does the expression “existing law” in the con of Section 6(6) (d) aforesaid mean Is it really open to courts in the country, by virtue of this subsecion to pronounce on the validity of an existing law If so, is there limitation on the area or scope of any such inquiry In my view, the expression “existing law” in Section 6(6)(d) aforesaid means “any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date” when the Constitution aforesaid came into force (see Sections 277(1) and 274(4) (b) of the 1979 Constitution). To my mind, a law is “in force” – within the con of section 274 (4) (b) aforesaid – if it is in existence (i.e. it is recorded as an unrepealed enactment in our statute books) and has been brought into operation; and for this purpose it is immaterial that the law in question has not been used for sometime or, even, for many years (see also Dr. Lushington in The India (1864) Br. & L. 222; also 164 ER 345 at 346. I pause, to observe that the question whether a law is in existence or in force is, indeed, different from the other question whether, although “in force”, it can have effect under the Constitution aforesaid; for it can only have such effect to the extent that it is not inconsistent with the express provisions of the Constitution  aforesaid. With much respect to learned senior advocate appearing for the appellant, I do not share his views that the expression “existing law” in Section 6(6) (d) aforesaid means only a law which “has effect” or “can have effect” under Section 274 (1) of the 1979 Constitution; there is, in my view, no need in the face of the clear provisions of sub-paragraph (b) of sub-section (4) of section 274 aforesaid to read what is  obviously a wider meaning (i.e other than the ordinary grammatical meaning) to that expression in the con of the entire provisions of the said sub-paragraph. The way I read Section 274 (1) is this: an existing law (i.e. an unrepealed enactment still on record in our statute books) cannot have effect as, or be deemed to be, a law of the National Assembly or a House of Assembly unless it can be modified in such a way “as to bring it into conformity” with the 1979 Constitution. Having said this much, the next question I have to consider is whether it is open to the courts by virtue of the provisions of Section 6(6) (d) aforesaid to pronounce on the validity of an existing law The answer, of course, is that Sections 6(6)(a), 6(6) (b) and 4(8) of the Constitution aforesaid provide the court with a general power to inquire into the validity of enactments in existence in our statute books made by the National, or a House of Assembly or deemed, under the Constitution aforesaid, to be so made; and for this purpose the provisions of any law which seek to oust the jurisdiction of the courts for this exercise must be considered invalid (see Section 1(3) of the 1979 Constitution). However, it does seem to me that notwithstanding the provisions of Sections 6(6) (a), 6(6) (b) and 4 (8) aforesaid, the Constitution aforesaid makes special reservations with respect to a class of legislation i.e those laws which were made “on or after 15th January, 1966” (in other words, those laws which came into existence during the period when this country was governed under the military regime). In respect of such laws, the courts are specifically precluded from “determining any issue or question as to the competence of any authority or person to make such law.” I found it considerably difficult – in the face of the clear and unambiguous language of Section 6(6) (d) aforesaid – to accede to the ingenious contention and submission on behalf of the  appellant that while sub-section 6(6) (d) means that the validity of a Decree cannot be challenged on “the ground of the competence of the law maker to make the law” (which really means, on ground of his authority or want of it to make such law), “it ought not to be construed as saying that the court has no jurisdiction to pronounce on its validity.” Again, with much respect to learned counsel for the appellant, to accede to this view is, indeed, to give a considerably narrow interpretation to the word “competence” in the relevant sub-paragraph of the sub-section under consideration. When one questions the validity of a law, one questions its competence on any accepted principle or rule of law. I once expressed the view (which I still hold) that “where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean,  where the justice of the case so demands, to the broader interpretation unless there is something in the con or in the rest of the Constitution to indicate that a narrower interpretation will best carry its object and purpose” (see Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at 195); and I add here that if in the interpretation of an expression in the provisions of a section of the Constitution there is anything in the con which indicates that a narrower interpretation will fail to carry out the object and purpose of the provisions of the particular section, then the court should give effect to the broader interpretation. Now, the dictionary meaning of “competence” has been given as (1) “adequate fitness or ability” (2) “in law, legal capacity”, “power”, “jurisdiction”; “capacity” has the meaning of “legal qualification”‘ “legal power or right”; and “valid” has the meaning of “having legal force”, “properly executed and binding in law”; while “validity” has the meaning of “the state of being valid” (see Webster’s New 20th Century Dictionary Unabridged 2nd Edition 1972). Once again I pause to recall my earlier observation, that the question whether a law is in existence or in force, must be distinguished from the other question whether, although in force, it can have effect under the Constitution pursuant to the provisions of Section 274 (1) It seems to me that, while the Constitution empowers the court to inquire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person (i.e. the legal capacity, power, legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January, 1966, and 1st October, 1979; in other words, the courts are precluded from inquiring into the validity of any such laws. Indubitably, the provisions of Section 6(6) (d) aforesaid are aimed at proceedings which seek to detract from the binding force and or authority of any unrepealed law made by the military regime between 15th January, 1966, and 1st October, 1979 when the new Constitution came into force. There is, of course, the subsidiary issue which is whether, although valid, such a law can have effect on or after the 1st day of October, 1979 Clearly, by virtue of Section 6(6) (a), 6(6) (b) and 4(8) of the Constitution aforesaid, the courts have jurisdiction to determine issues or questions as to whether any law, including those unrepealed laws which were made between 15th January, 1966, and 1st October, 1979 (or the provisions thereof) is consistent with the provisions of 1979 Constitution; and for the purpose of giving effect to it under the existing Constitution; and for this purpose, but to this extent only, the courts can declare such a law or portions thereof invalid. This, however, is a different thing from saying that courts have a general power to pronounce on the validity of such laws which were made between 15th January, 1966, and 1st October, 1979, on the ground that there never was any authority, legal qualification, or legal jurisdiction or power to make such laws; and thus, indirectly rendering invalid whatever action that must have been taken under the provisions of such laws. The courts have no such power (Section 6(6) (d) refer; also, see University of Ibadan v. Adamolekun (1967) (1) All NLR 213 particularly at 224). In Adamolekun (Supra) this court, after carefully considering Decree No. (1) of 1966, the special effect of the provisions of Section 6 thereof and Section 1 of the 1963 Constitution of the Federation No. 20 of 1963 as modified by Decree No. 1 of 1966 (details of which I earlier on set out) said per Ademola, CJN.,:-

“Reading the Decree as a whole we are in no doubt that Section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the courts from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words, the court is not inquiring into whether the Military governor of a Region could legislate by Edict, but only whether Section 36 of the Edict is inconsistent with the Constitution of the Federation” (underlining by me).

Having expressed the views above, it follows, therefore, that the cases of Lakanmi (Supra) and Liyanage (Supra) to which our attention has been drawn by learned counsel for the appellant cannot avail his client. These cases deal with the question whether the legislature can lawfully make laws or enactments which amount to ‘legislative judgments’; in other words, whether the legislature, under a constitution which clearly separates the functions of three arms of government -the Executive, the Judiciary and the Legislature – can lawfully make a law which in effect trespasses into the field or area of jurisdiction of the Judiciary (when it clearly has no such constitutional power or authority to do so) The best definition of ‘legislative judgment’ or as it is sometimes referred to, ‘a bill of attainder’ or a bill of pains and penalties to be found in the judgment of Frankfurter, J., in United States v. Lovett 328 US 303 at 322 also 90 L ed 1252  at 1263 where the learned Judge cites with approval the statement in Farrar; Manual of the Constitution (1867) at 419:-

“A bill of attainder, by common law, as our fathers imported it from England and practised it themselves, before the adoption of the Constitution, was an act of sovereign power in the form of a special statute——by which a man was pronounced guilty or attained of some crime, and punished by deprivation of his vested rights without trial or judgment per legem terrae” (underlining by me).

To the above quotation, it is necessary to add that if the punishment prescribed in the special statute be less than death, the Act is termed a Bill of Pains & Penalties; in any case, each of them – a Bill of Attainder or a Bill of Pains & Penalties – constitutes a ‘legislative judgment”. Elaborating on this definition, it is stated in the annotation to the case of Lovett (supra) at 90 L. ed at 1271, that: “Reduced to its elementary state,  a bill of attainder was a law designed to punish without trial, or stated more comprehensively, a legislative enactment intended as and resulting in, the arbitrary punishment of an individual or a class without affording to the person or persons so penalised the protection of the courts” (again, underlining by me). In short, a legislative judgment amounts to a legislative exercise of judicial power; but, in my view, there is no such exercise of judicial powers unless it can be shown that there was not the “safeguard of a trial” or inquiry by courts to which Section 6 of the 1979 Constitution applies (and this, by virtue of Section 6(5) of the Constitution aforesaid could include tribunals of inquiry) with regard to events and proceedings on which the legislative exercise is based. With regard to the case of Lakanmi (Supra) cited to us in the course of arguments this appeal I, for my part, would prefer to confine the decision in that case to the special facts of, and statutes – particularly, The Forfeiture of Assets, Etc (Validation) Decree 1968 No. 45 of 1968 – concerned with, in that case as I do not consider an examination or comparative analysis of the facts in Lakanmi (Supra) with the proceedings in hand necessary for my decision in this appeal. In Kariapper v. Wijesinha (1967) 3 All ER 485, the Privy Council declined to express an opinion as to the circumstances in which a confiscating enactment (i.e. enactment providing for forfeiture of the citizen’s assets) may constitute a legislative exercise of judicial power since, according to the Board (i.e. the Privy Council), it is unwise, when dealing with constitutional law, to go beyond what is necessary for the determination of the case in hand. (See Sir Douglas Menzies in Kariapper v. Wijesinha (1967) 3 All ER at 489 F-G.)

In the light of the above observations on “legislative judgment” (sometimes referred to as “legislative sentence”) a careful examination and study of the Tribunals or Inquiries (Validation etc.) Decree 1977 No. 18 of 1977 – which Decree, indeed, appears to me, without any doubt, designed to validate Edicts or subsidiary instruments made, by the appropriate authority in the States  which had been concerned with  Tribunals of Inquiry and Investigating Panels between 29th July, 1975, and 30th September, 1977, for the purpose of “implementation” of the  various reports of these tribunals and panels – I am satisfied that the Decree No. 18 of 1977 does not constitute a “legislative judgment” (or “legislative sentence”); and for the reasons stated above (in the immediately preceding paragraphs) that Edict No. 10 of 1977 – even if the courts can inquire into the issue of its validity – does not constitute a legislative exercise of judicial power. Both enactments are, in my view, valid; and Decree No. 18 of 1977 operates effectively to validate the exercise by the Maidoh Tribunal (if there was any irregularity in that exercise). Again, for the reasons already stated in the course of my examination of the submissions and contention on behalf of the appellant on the effect of Section 6 (6) (d) of the 1979 Constitution, the High Court of Bendel State has no jurisdiction to inquire into the validity of Decrees Nos. 10 of 1976 and 18 of 1977. Having held that Decree No.18 of 1977 is valid, it follows, therefore, that by virtue of the provisions of Section 2(2) thereof – which operates in the nature of “statutory estoppel” – the High Court of Bendel State is precluded from inquiring into the claims in these proceedings.

See also  Bishop S.C Phillips And T.K.E Phillips V R.T. Phillips (1967) LLJR-SC

It follows, therefore, that this appeal must fail and it is hereby dismissed. The judgments of both the  High Court of Bendel State and the Court of Appeal in suits B/264/79 and FCA/B/33/81 respectively are hereby affirmed; and I endorse the order for costs proposed in the judgment of my learned brother, Sowemimo, JSC.

A. O. OBASEKI, J.S.C.:  I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Sowemimo, JSC. I agree with him that the appeal be dismissed and affirmed the decision of the Federal Court of Appeal and the High Court.

The short point in this appeal  is whether or not the High Court of Justice, Benin City (Ekeruche, CJ.) has jurisdiction to entertain the claims of the plaintiff/appellant. This point was not immediately discernible from the claims endorsed on the writ of summons which for the purpose of this judgment, I propose to set out in full. It reads:

“The plaintiff’s claim against the defendants is for

(a)    A declaration that the Maidoh Assets Verification Panel exceeded its jurisdiction in that it failed to determine the issues contained in its terms of reference according to law.

(b)    A declaration that the Maidoh Assets Verification Panel exceeded its jurisdiction in that it heard and received evidence and/or representations from a number of persons behind the back of the plaintiff, and thus failed to observe the rules of law and that of natural justices.”

To these two items of claim was added a third in the statement of claim which reads:

(c)    A  declaration that as a result of (a) and/or (b) above, the recommendations of the Maidoh Assets Verification Panel are a nullity, void and of no effect.
On the 6th of May, 1980, with leave of the High Court, the writ of summons and the statement of claim were amended to include a fourth item of claim. This item of claim in paragraph 18(d) reads:

“Perpetual injunction to restrain the defendants whether by themselves, public servants, or agents or otherwise howsoever from entering, trespassing, using or remaining on or continuing in occupation of the plaintiff’s properties at Plot X75 GRA, Benin City and property at 9 Omoregie Street, Ogida Quarters, Benin City.”

The facts in support of these claims were pleaded in the amended statement of claim and of particular relevance to this judgment are paragraphs 8, 11, 12, 13 and 14. They read as follows:

“(8)  Plaintiff’s counsel consistently contended before the 2nd, 3rd, 4th and 5th defendants that they had no right to investigate the plaintiff’s assets beyond 30th June, 1972, but the said defendants insisted that they had such right and in fact investigated the assets of the plaintiff up to September, 1975. The plaintiffs will at the trial tender plaintiff’s solicitor’s letter to the Secretary of Maidoh assets Verification  Panel dated 23rd February, 1977.

(11)  At the conclusion of the exercise, a number of persons were called to adduce evidence before the panel and to tender documents concerning the bank account of the plaintiff. It was only thereafter that plaintiff’s counsel were asked to submit a written address. The written address submitted by Solomon Asemota, Esq. on behalf of the plaintiff will be relied upon at the trial.

(12)  Later in the year, Government announced that it had accepted some of the recommendations of the panel among which was that a number of the properties belonging to the plaintiff be confiscated. Edict No. 10 of 19th July, 1977 containing the Government confiscation  order will be relied upon at the trial.

(13)  That after the said confiscation order, the  Government published the report of the said Maidoh Assets Verification Panel in an Official Document No.10 of 1977. The said official Document No. 10 will be relied upon at the trial. So also will official Document No.12 of 1977 be relied upon at the trial.

(14)  It was after the said publications that the plaintiff discovered from the said reports that a number of ghost witnesses gave evidence secretly before the tribunal behind the back of the plaintiff. These inc………..
…The plaintiff was not given the opportunity to hear the evidence of these witnesses nor was he  given the opportunity to cross-examine them and does not know in what circumstances their evidence was given.”

It is therefore clear from the plaintiff’s pleadings that the relief the plaintiff really seeks was to declare Edict No. 10 of 1977 by which his properties were confiscated null and void, set it aside and release his properties to him. These are legitimate objectives in a court clothed with the competence of adjudication on the validity of the Edict.

Not surprisingly, the statement of defence filed by the  defendants  raised the issue of jurisdiction as a preliminary point of law in paragraphs 17, 18 and 19, 19(a) and 19(b) as follows:
“17.  The defendants in answer to all the claims of the  plaintiff will  at, or before, the hearing of this suit raise by way of preliminary objection on a point of law the issue that the  court has no jurisdiction to entertain this suit by reason of the provisions of the Tribunals or Inquiries (Validation etc.) Decree 1977 (Decree No. 18 of 1977) particularly Sections 1, 2, 3 of the  said Decree.

18.   In addition to paragraph 17 above, the defendants will further contend  that by reason of the provisions of the said Tribunals or Inquires (Validation etc.) Decree 1977, particularly Sections 2(1) (a), (b); 2(2) this action is void and shall be so declared.

19.   The defendants in addition to paragraphs 17 and 18 above will also contend that by virtue of the provisions of the constitution of the Federal Republic of Nigeria particularly Section 6(6) (d) and also the provisions of the Investigation of Assets (Public Officers and Other Persons) Decree 1978, (but read 1979) this action is not maintainable and should be dismissed/struck out.

19(a)  The defendants will also raise the point of law that on the facts pleaded and/or before the court, the plaintiff has not established a right which may be adversely affected in the future by something already done by the defendants to entitle him to an order of injunction.

19(b)  The defendants will rely on the point of law that the present action which commenced only on 2nd October, 1979 is statute barred by virtue of the provisions of the Public Officers Protection Law Cap. 137 Laws of Bendel State of Nigeria since the act or default or neglect took place more than 3 months before this action.

These objections were set down as required by Order 22 rule 2 of the High Court Civil Procedure Rules for hearing and  heard after the close  of plaintiff’s case but before the presentation of the defence evidence. The learned trial Judge, Ekeruche, CJ., delivered a considered ruling and upheld the objections in the following terms:

“Dealing next with the point whether or not this court can entertain this suit, I have no doubt whatsoever in my mind that this court cannot. That this is so is clear from the provisions of Section 6 subsection 3 of Decree No. 10 of 1976 which came into operation on the 29th day of July, 1975. The said provisions have already been set out in this ruling.
Learned counsel for the  plaintiff argued that the  Assets Validation Decree has not been repealed by the Constitution of the Federal Republic of Nigeria 1979 and accordingly that anything done pursuant to the said Decree has ceased to have legal effect or validity. That contention is erroneous. The mere repeal of an Act or any Law does not affect anything done by or under that Act or Law. For such invalidation to result, the repealing legislation must say so either expressly or by necessary implication and this  the Constitution of 1979 has not been shown (to do). This view of mine is fortified by Section 12 of the Interpretation Law of Bendel State of Nigeria…………….

Quite apart from the points dealt with as a result of which I held that this action is not competent, and that the court cannot entertain the suit, I wish to say that the plaintiff’s claim before the court is totally misconceived.

The plaintiff in his first two items of claim is seeking each a declaration that the  Maidoh Assets Verification Panel has exceeded its jurisdiction………

It is obvious that the jurisdiction that is being challenged in the said two items is jurisdiction as to competence.”
This decision did not satisfy the plaintiff and he appealed to the Federal Court of Appeal. The Federal Court of Appeal found itself unable to accept the appellant’s contention that the High Court had jurisdiction to entertain the suit and dismissed the appeal. In the judgment delivered by Nasir, President, in which Eboh, Ete, Agbaje and Okagbue, JJCA., concurred, the  President said:

“As all the grounds and actions giving rise to this suit had arisen out of the actions of the Military Governor and the Panel and these actions were all done and completed before the Constitution came into force, I am of the considered opinion that the Constitution has not revived any of the rights of the appellant which had otherwise been ousted by the various legislations heretofore discussed. The learned Chief Judge in his ruling said in respect of learned counsel’s submission of this point:

“That contention is erroneous. The mere repeal of an act or any Law without more does not ipso facto invalidate an act done under that Act or Law, for any such invalidation to result the repealing legislation must say so either expressly or by necessary implication, and this the Constitution of 1979 has not shown.”

In my opinion, the above passage states the law as it is today in this country. I am fortified in this view by the provision of Section 6(1) of the Interpretation Act 1964 which provides:

………Section 12 of the Interpretation Law of Bendel State has an identical provision……..I hold that the lower court had no jurisdiction to entertain the suit filed by the appellant……

I am of the opinion that this appeal must fail and it is hereby dismissed.”
Aggrieved by this decision of the Federal Court of Appeal, the appellant has brought this appeal to this court on many grounds. At the oral hearing, the grounds of appeal argued were those in respect of which leave was sought and obtained. They read as follows:
“The learned President of the Federal Court of Appeal erred in law in holding as follows:

(a)  As all the grounds and actions giving rise to this suit had arisen out of the actions of the Military Governor and the Panel, and these actions were all done and completed before the Constitution came into force, I am of the considered opinion that the  Constitution has not revived any of the rights of the appellant which had otherwise been ousted by the various legislations heretofore discussed.

(b) As stated earlier on in this judgment the right of  (and) the obligations of the  parties must be considered in this court and in the lower court in the light of the provisions of the law as it was when the cause of action arose.

Particulars of Error

(i)  Section 2(1) of the Act No. 18 of 1977 does no more than provide a shield of defence in the event of an action challenging the validity of any Edict or subsidiary legislation and any act or thing done by the appropriate authority in respect of the  implementation of the report of any tribunal or inquiry respecting the forfeiture or other disposal of the property of any person.

(ii)  According to the correct principles of statutory interpretation and on the true meaning of Section 6(2) of the Interpretation Act 1964, the effect of a statute which provides a defence in particular circumstances is that the plaintiff cannot exert his rights in those circumstances so long as the statute remains in force.

(iii)  In the absence of express words the provision of a statute as aforesaid does not mean that the plaintiff’s rights are forever destroyed and cannot ever be revived by a repeal of the statute or an amendment thereof.

(iv)  The court ought to be slow in construing a statute on the basis that it is the intention of the legislature to perpetuate an illegality or wrongful seizure of property.

(v) The benefit conferred by Section 2(1) of Act No. 18 of 1977 on a person defending a challenge to the validity of a forfeiture order is not a ‘right accrued’ under Section 6(1) (c) of the Interpretation Act.

(vi)  Since the statute prescribing that the common law shall be in force in Nigeria was never repealed during the military regime, it follows that those rights (which had been suspended by Act No. of 1977) revived upon the lapse of the latter Act on the coming into force of the Constitution.

(vii)  It is contrary to the true intent of the Interpretation Act to hold that the special defence provided by Act No. 18 of 1977 continued to be available after the said Act had lapsed.”

The main questions for determination in this appeal set out in appellant’s counsel’s brief are as follows:

(i)  was the Federal Court of Appeal right in holding that under Section 7 (1) of the Public Officers (Special Provisions) Act 1976, the officer includes the appellant

(ii) whether the provisions of laws that oust the jurisdiction of courts prior to the coming into existence of the Constitution 1979, still have effect over matters that  arose prior to the coming into  being of the Constitution but still within the period of limitations.

(iii) whether the Federal Court of Appeal was correct in holding that Section 2(1) of the Tribunal or Inquiries (Validation etc.) Act 1977 No. 18 apply so as to validate the  order for the forfeiture of the appellant’s assets.

In my opinion, all the above questions must be answered in the affirmative. However, the additional question posed for determination is whether the Federal Military Government had the power to enact the Tribunal or Inquiries (Validation etc.) Act, 1977, No. 18 which validated the Edict No.10 of 1977 by which the properties of the appellant were forfeited to and vested in the State. This is apparent from appellant’s learned counsel’s submission both in his reply brief and at the oral hearing. Before us, appellant’s counsel submitted that (quoting from the brief filed by him on behalf of the appellant)

“On the facts of this case, the vital question is whether the Federal Military Government could have made a law stating that notwithstanding that there was no valid investigation into the assets of the appellant to establish that he had unjustly enriched himself or other person or that he had corruptly acquired any property his assets may be confiscated for the benefit of the State. Such an enactment would, it is submitted, have amounted to what the Supreme Court described in Lakanmi’s case (1971) 1 UILR 201, 220 as ‘legislative judgment’. The powers of the Federal Military Government throughout the military regime did not include judicial powers. Their powers were limited to making laws and  executing those laws. The forfeiture of property without compensation is a sentence which only a court of law can pass  pursuant to the laws prevailing in the country not otherwise. See also Blackstone’s Commentaries 2nd edition Vol. 1 p. 44 and Liyanage v. The Queen (1967) AC 259, 290, 291. The Federal Military Government could validly have passed and did in fact pass laws to confiscate or forfeit the properties of persons who were found to have unjustly  enriched themselves or other persons or who were found to have acquired properties corruptly. What the Federal Military Government did by Section 2(1) (a) of the 1977 Decree was to direct or enact, in effect, that if properties were declared to have been forfeited by any Edict or instrument contrary to the provisions of the relevant law, such Edict or instrument shall be deemed to have been validly made.” In other words, the properties of the person affected shall suffer forfeiture where such forfeiture was not authorised by law. In short, the Decree prescribes that the persons concerned (including the appellant) are to suffer punishment or penalty on the premise that such punishment or penalty had not been inflicted or imposed on them according to law. It is submitted that such a Decree is not ‘law’ nor can it be regarded as having been made for ‘ peace, order and good government.’ The Interpretation Act cannot possibly apply.”

That submission is the gravamen or pith of the appellants’ case. Again, the question that arises from the above submission is whether it was competent for the Federal Military Government to promulgate Decree, No. 18 of 1977 – the Decree counsel submitted before us could not rightly be classified as a law because the Decree validates illegalities and was not made for the peace order and good government.

The question I now ask myself is whether the court can entertain and determine such question. In other words, do the  judicial powers now vested in the courts extend to the determination of such question. Counsel for the appellant conceded that the only limitation on the courts’ judicial powers of enquiry into the validity of any legislation passed during the military regime is that placed on judicial powers by Section 6(6)(d) of 1979 Constitution. The limitations he submitted was confined to existing law and he submitted that Decree No. 18 of 1977 does not qualify as an existing law. Section 6(6) (d) of the 1979 Constitution reads:

That provision of the Constitution states that the judicial powers vested

“shall not as from the date when this section comes into force extend to any action or proceeding relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to competence of any authority or person to make any such law.”

The appellant’s counsel conceded that the  above quoted provision means that the validity of a Decree or Edict cannot be challenged on the ground of the competence of the law maker to make the  law. I accept this statement as a correct interpretation of the section.

The word “competence” in law according to Websters’ New Twentienth Century Dictionary Unabridged Second Edition means:
“legal capacity, qualification, power, jurisdiction or fitness as

(a)  the competence of a witness to testify

(b)  the competence of a Judge to try a case.”

In my view, the word competence as used in Section 6(6) (d) of the 1979 constitution of the Federal Republic can only mean legislative power of any authority or person to make such a law. That power to make a law validating illegalities and or giving what has been termed legislative judgment is what has been challenged.

If the court goes into the question of the legislative powers of the Governor or the Federal Military Government, a host of other subsidiary questions must of necessity arise.

When appellant’s counsel submitted that the powers of the Federal Military Government throughout the military regime did not include judicial powers, he was indirectly attacking the competence of the governor to make Edict No. 10 of 1977 and the competence of the Federal Military Government to make Decree No. 18 of 1977. I agree with learned counsel’s submission that the validity of an Edict or Decree can be challenged on other grounds in respect of which the court would have jurisdiction but that challenge does not arise in this appeal. Such situation arises where an existing law is to have effect under the constitution and its provisions are in conflict either with any other existing law, a law of the House of Assembly, an Act of the National Assembly or a provision of the Constitution of the Federal Republic of Nigeria 1979. See Section 274(3), Constitution of the Federal Republic of Nigeria 1979.

The next question I ask is this: Is Decree No. 18 of 1977 an  existing law Is Edict No.10 of 1977 of Bendel State an existing law It is my view that being laws not repealed before the 1979 Constitution came into force on the 1st day of October, 1979, both laws are existing laws within the  definition set out in Section 274 (4) of the 1979 Constitution.

I am therefore of the opinion that the action instituted by the appellant, the proceedings of which has resulted in this appeal, is caught by Section 6(6) (d) of the 1979 Constitution and the question of competence of the Governor to make Edict No. 10 of 1977 and the competence of the Federal Military Government to promulgate Decree No. 10 of 1976 and Decree No.18 of 1977 cannot be enquired into by the High Court or indeed any court of law in this country.
I agree with the High Court and the Federal Court of Appeal that the High Court is incompetent to entertain the suit. Having disposed of that question, I shall now proceed to deal with the other three questions for determination set out above.

With regard to the submission on the effect of the Interpretation Act 1964 Section 6(1) which is the same as Bendel State Interpretation Law Section 12, it is necessary to examine the Edict and the Decrees more closely. This can only be done by examining and analysing their provisions. Edict No. 10 of 1977 titled Public Officers and Other Persons (Forfeiture of Assets) (No. 2) Edict 1977 was promulgated on the 19th day of July, 1977 by Commodore Hussaini Abdullahi. Of particular relevance are the recitals and Section 2 which read as follows:

“Whereas by Bendel State Notice No.84 of 1977 the Assets Verification Panel was on the 24th day of January, 1977 appointed to amongst other things, examine and verify  the assets and income of some public officers, organisations and other persons:

Whereas the report of the said Panel has been submitted to and considered by the  Executive council;

Whereas the Government of Bendel State has taken certain decisions in respect of the said report

Whereas I consider it necessary to promulgate an Edict for the purpose of implementing and giving effect to the said decisions.

NOW THEREFORE, I COMMODORE HUSAINI ABDULLAHI, Military Governor of Bendel State hereby issue this Edict as follows:

This Edict may be cited as the Public Officers and other Persons (Forfeiture of Assets) Edict

2. The Properties specified in the second column of Part 1 of the Schedule to this Edict, being assets of the persons named in the first column of that Schedule are hereby forfeited to and shall vest in the persons specified in the third column of that schedule free of all incumberance without any further assurance apart from this Edict.
SCHEDULE

Name  of Party  Description of   Person in whom
Property          Property is vested
___________________________________________
1.

2.  Mr. F. S. Uwaifo
(a)  Property on Plot         Bendel State
X75 GRA, Benin            Government
City.

(b)  Property at No.9             Bendel State
Omoregie St. Ogida         Government
Quarters Benin City
…………..
(Signed).

The Assets Verification Panel was set up under Section 3(1) of the Public Officers (Special Provisions) Decree 1976 No. 10.

This section reads:

“For the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself or any other person, the appropriate authority may constitute a panel to conduct an investigation into any matter with which the officer has been concerned in the performance of his duties or to conduct investigations into the assets of the public officer.”

The provision of Section 4 of the Decree applies to the 1968 Decree to the investigations and reads:

“4.  The  Investigation of  Assets (Public) Officers and other Persons) Decree 1968 or so much of that Decree as the appropriate authority may direct, shall apply in respect of investigations into and forfeiture of, the assets of a public officer under this Decree to the same extent as it applies in respect of an enquiry conducted under that Decree but for the purposes of this Decree, have effect as if
(a)  the references in the Decree of 1968 to the appropriate authority were references to the appropriate authority under this Decree.

(b)  the references in that Decree to a tribunal of inquiry and the chairman of the tribunal of inquiry were references to a panel constituted pursuant to Section 3 of this decree and chairman of that panel, respectively.”

Public Officer is defined in Section 7(1) of the Decree as meaning any person who holds or has held any office in amongst others “the public service of a state within the meaning of the corresponding provisions of the Constitution of that State.”

Although this definition did not specify any limit to the period an officer has held office, Section 13(i) of Decree No. 37 of 1968 did and the date set down was 1st October, 1960. It is common ground that the appellant once held office in the public service of the state but had retired voluntarily in 1972 five years before the probe into his assets. The appellant was therefore within the definition of public officer and a legitimate subject of the probe.

There was an attempt in counsel’s argument to link the operation of the provisions of Section 1 and Section 2 of the Decree with the operation of the provision of Section 3. In my view, section 3 of the Decree cannot in any guise be restricted by Sections 1 and 2 of the Decree

Section 1 gives power to the appropriate authority at any time before 1st January, 1976, notwithstanding anything to the contrary in any law, if  he is satisfied on the grounds set out

(1)    to dismiss or remove the public officer summarily from his office; or

(2)    require the public officer to retire compulsorily from the relevant office

Section 2 (1) provides that:

“Where a public officer is dismissed, removed or retired compulsorily from his office pursuant to Section 1 of this Decree the appropriate authority shall direct
(a)    whether appropriate retirement benefits are to be paid in respect of that officer and if so what proportion of those benefits are to be paid or

(b)    whether those benefits shall be forfeited.”

There is no evidence whatever and it is not pleaded that the  appellant comes within the ambit of the  provisions of Sections 1 and 2. However, the provisions of Section 6(3) and 6(4) which are revolting to civilian democratic regimes gave no room to any injured party to complain to any court. The two subsections read as follows:

“(3)  No civil proceedings shall lie or be instituted in any court for or on account of any or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and  made void.

(4)  Chapter III of the  Constitution of the Federation is hereby suspended for the purposes of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be enquired into in any court of law.”

Of particular interest is Section 7(3) of the Decree which stipulates that

“Nothing in this Decree shall be construed as limiting to any extent whatsoever any powers that may be conferred on the appropriate authority under any other enactment or law with respect to any matter to which this Decree relates.”

Section 4 of the Decree as earlier observed incorporates the application of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968, No. 37 of 1968 in toto unless its application is restricted by the appropriate authority. In this case, there is no such restricted application as no limited application was ordered by the Military Governor. Of particular relevance to this matter on appeal are Sections 1, 8(i) and 13(i) of the Decree No. 37 of 1968, whose provisions are as follows:
1.  There shall be, for the purposes of

(a)  investigation into the assets of public officers, whether or not at the commencement of this Decree such officers have ceased to be public officers.

(b)  directing enquiries under this Decree into those assets if considered in the public interest; and

(c) taking such further steps as may be authorised under this Decree,

the several authorities hereinafter mentioned (such authorities hereafter referred to in this Decree in respect of matters within the scope of their authority as “appropriate authority”)

8(1)  Without prejudice to any other provision of this Decree, the appropriate authority may:

(a)  where an inquiry under this Decree (or any other enactment or law or under any proceeding whatsoever) discloses that a public officer has acquired assets for himself or in the name of any other person in the  matter described in paragraph (a) of Section 4(1) of this Decree and

(b)    if he is of the opinion that reparations ought to be made.

make an order forfeiting all the assets to any part thereof acquired in the said manner (whether or not such assets are in his name): Provided that no order shall be made by a military governor for forfeiture of assets aforesaid except with the consent of the Head of the Federal Military Government.

13(1)  In this Decree, unless the con otherwise requires:
“Public Officer” means

(a)  any person who on or after 1st October, 1960 holds or has held any office in any of the public services of Nigeria.

It is to be observed that the definition of  Public Officer under Decree No. 10 of 1976 unlike Decree No. 37 of 1968 ties it to the Public Service of the State as defined in the Constitution of the State 1963.

The Tribunals or Inquiries (Validation etc.) Decree 1977, Decree No.18, was vehemently attacked by appellant’s counsel as being an encroachment on the judicial powers of the court, and the principle of separation of powers. He contended that it validated legislative judgments and further contravenes all known legal principles in that it validated what in effect would have been nullities and gave them the  force of law. He described it as being no law. An examination of the Decree No. 18 of 1977 shows that Section 1 of the Decree validated the institution and Constitution of tribunals or inquires (however described or constituted), Section 2 validated forfeiture orders and other orders of a penal nature in addition to ousting the jurisdiction of the courts, whilst Section 3 is a general umbrage describing the full extent and effect of Section 1 and 2. For a better and full appreciation of the provisions of the sections, I set them out in full hereunder:

“1(1)  Where on or after the commencement of this Decree (but before 30th September, 1977) the appropriate authority in a state has instituted any tribunal or inquiry (however described or constituted)

(a) to inquire into any matter concerning the administration of the affairs of any person or of any body; whether corporate or incorporate, in the state; or

(b)  to inquire into any aspect of the exercise of his official duties by a public officer of the state; or

(c) to inquire into the conduct of any person whether or not a public officer of the state in so far as it concerned any of the matters mentioned on paragraph (a) or (b) above, or

(d)  to inquire into any matter whatsoever in the State, the tribunal or inquiry as aforesaid shall notwithstanding anything to the contrary in any enactment; law or rule of law, be deemed to have been validly instituted or constituted.

(2) The question whether any tribunal or inquiry to which subsection (1) of this section relates was or has been validly instituted or constituted, or whether any law, Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court; and if any action or other proceeding whatsoever has been, or is instituted in any court in respect of any such question, the action or other proceeding shall be void.

2(1)   Any Edict or subsidiary instrument made by the appropriate authority in a state and any act or thing done by the appropriate  authority in respect of the implementation of the report of any tribunal or inquiry to which Section 1 of this Decree applies respecting –

(a)  the forfeiture or other disposal of the property of any person; or

(b)  the dismissal, retirement or any other exercise of disciplinary control over any public officer of the State or of any member of anybody whether corporate or incorporate in the State

shall be deemed to have been validly made and done and shall have full effect in accordance with its tenor.

(2) the question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court; and if any action or other proceeding whatsoever has been or is instituted in any such Edict or subsidiary instrument or act or thing, the action shall be void.”

Section 2(2) is an ouster clause having ousted the jurisdiction of the court.
“3(1)   For the purposes of Section 1 or 2 of this Decree it shall be immaterial

(a)  that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power or that any act or thing done was expressed as having been done in exercise of any power conferred under any particular law;

(b)  that, where applicable, the procedure set out in the Investigation of Assets (Public Officers and Other Persons) Decree 1968 or the Public Officers (Special Provisions) Decree 1976 or any other Decree or enactment has or has not been followed or that the requisite consent under any of those enactments was or was not obtained.

(c)    that the law or power under which the act or thing was done was not stated.

(2)    Without prejudice to the foregoing provisions of this Decree, Chapter III of the Constitution of the Federation is hereby suspended for the purposes of this Decree and no question whether any provision thereof has been or is being or would be contravened by anything done or proposed to be done in pursuance of this Decree shall be inquired into in any court of law and accordingly Sections 115 and 117(2) (d) of the Constitution shall not apply…………..”

In Section 4(2) the definition of “tribunal or inquiry” included “panels”. It reads:

“4(2)  The reference in this Decree -….
(b)    to a tribunal or inquiry shall be construed as including a reference to any committee, commission, panel or any other person or body however described or constituted appointed to inquire into any matter to which Section 1 of this Decree relates.”
The  above Decree was described as “no law” by learned counsel for the appellant. What then is ‘law’ I must turn to the Constitution as amended and operated by the military administration in the years 1966-1979. In the Decree No.1 of 1966 titled The Constitution (Suspension and Modification) Decree 1966 which may properly be called the Constitution during the 1st and 2nd military administrations, it is provided in Section 3(1) that

“The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part therefore with respect to any matter whatsoever.”

The mode of exercising the legislative powers is spelt out in Section 4(1) and (2) which reads:

“(1)  The power of the Federal Military Government to make laws shall be exercised by means of Decrees signed by the Head of the federal Military Government

(2)  The power of the Military Governor of a Region to make laws shall be exercised by means of Edicts signed by him.”

When in July, 1975 there was a change in military administration, the Constitution (Basic Provisions) Decree 1975 Decree No. 32 of 1975 which may be termed the Constitution during the 3rd military administration made similar provisions as above in Section 1(1) and (2), 2(1) and (2) and 3(1) and (2). Section 1(1) and (2) read:

“(1)  The Federal Military Government shall have power to make  laws for the  peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.

(2)    The Military Governor of a State

(a)  shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and

(b)  except with the prior consent of the Federal Military Government shall not make any law with respect to any matter included in the Concurrent Legislative List.

(3)  Subject to subsection (2) above and to the Constitution of the Federation, the Military Governor of a State shall have powers to make laws for the peace, order and good government of that State.

(6)  The question whether a law made by the Military Governor of a State with respect to a matter included in the Concurrent Legislative  List was made with the consent required by subsection 2(2) above shall not be enquired into in any court of law.”

On the mode of exercising legislative powers, Section 2 provides

“(1) The powers of the Federal Military Government to make laws shall be exercised by means of Decrees signed by the Head of the Federal Military Government

(2)  The power of the Military Governor of a State to make laws shall be exercised by means of Edicts signed by him.”

On making and commencement of decrees and edicts, Section 3 provides

“(1)  A Decree is made when it is signed by the Head of the Federal Military Government, whether or not it then comes into force.

(2)    An Edict is made when it is signed by the Military Governor of the State to which it applies, whether or not it then comes into force.”

A surprising provision is that of Section 4 of the Decree. It reads:

“No question as to the validity of this or any other Decree, or of any Edict shall be entertained by any court of law in Nigeria.”

In Section 20, in the definition section, Decree was defined as:

“an instrument made by the Federal Military Government and expressed to be, or to be made as, a Decree.”
Edict was defined as

“an instrument made by the Military Governor of a State expressed to be, or to be made as, an Edict.”

Enactment was defined as:

“including any provision of decree or an edict.”

It may be true that some of the provisions of the edicts and decrees offend some cherished concepts of law and justice held by some of us, but the Federal Military Government had unlimited legislative powers and exercised the powers in pursuance of its objectives.

In view of the provisions of Decree No.1 of 1966 and Decree No. 32 of 1975, I find myself unable to accept the submission of counsel for the appellant that Decree No. 18 of 1977 and Edict No.10 of 1976 are no laws.

These were laws duly enacted by the authorities with power to make laws. The failure of any express provision vesting judicial powers of the Federation in the courts before the 1979 Constitution was a great limitation on the exclusive exercise of judicial powers by the courts. This is so as the courts could only exercise judicial powers in areas where jurisdiction was expressly conferred on the courts and to the extent that it was not ousted or excluded by any valid law.

As regards counsel’s submission that Sections 3 and 4 of the Public Officers (Special Provisions) Decree should be given limited construction, more in line with the other provisions of the Decree (i.e Sections 1, 2 and 5), I find nothing in the  two sections demanding or compelling or to warrant such a  limited or restricted construction. While Sections 3 and 4 are forward looking in their operation, Sections 1, 2 and 5 are backward looking and intended to give a cover of legality to what had already been done by the appropriate authority before the promulgation of the Decree.

Section 4 of the Decree No. 10 of  1976 removes any possible area of conflict or contradiction with Decree No. 37 of 1968 and assimilated or incorporated the procedure prescribed in the Decree No. 37 of 1968 into Decree No. 10 of 1976.

The definition of Public Officer in Section 7(1) of the Decree No. 10 1976 is wide enough to include the appellant. Since the Decree was promulgated after the purge of the public service in 1975, the wording of all the sections would have expressly reflected the intention to confine their operation to the victims of the purge during the period between 1975 July 29, and 1st January, 1976. But that has not been done.

Learned counsel for the appellant dealing with the court’s jurisdiction ouster clauses…..in the Decrees submitted that they cannot now be invoked to defeat the action filed on 2nd October, 1979. It will be necessary at this stage to deal with the effect of the Interpretation Act 1964, Section 6(1) on Decrees No. 37 of 1968, No. 10 of 1976 and No. 18 of 1977. Learned counsel for  the appellant submitted that the three Decrees did not destroy or take away right of action to sue for the violation of the appellant’s rights, property rights and right to fair hearing but that they only ousted the jurisdiction of the courts in respect of such claims during the military regime up to 30th September, 1979. He contended that the fact that the  court had no jurisdiction when the cause of action arose was irrelevant unless the fact is expressly made a condition for the exercise of jurisdiction by the relevant statute. He also submitted that the question whether a court has jurisdiction or not over a claim must  be determined at the time when  that jurisdiction is invoked. He finally submitted that Section 6 of the Interpretation Act must not be construed so as to nullify the plain effect of repealing such statute. Attractive as counsel’s submission may be, I cannot lose sight of the provision of Section 277 (4) of the 1979 Constitution. That section reads:

“The Interpretation Act 1964 shall apply for the purposes of interpreting the provisions of the Constitution.”

The provisions of subsections (1) and (2) of Section 6 of the Interpretation Act to which the court’s attention has been drawn read:

“(1)  The repeal of an enactment shall not –

(a) revive anything not in force or existing at time when the repeal takes effect;

(b) effect the previous operation of the enactment of anything duly done or suffered under the enactment;

(c) affect any rights, privilege, obligations or liability accrued or incurred under the enactment;

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigations, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.

(2)    When an enactment expires, lapses, or otherwise ceases to have effect, the foregoing subsection shall apply as if the enactment had then been repealed.”

Learned counsel for the appellant submitted and I agree with him and I think this is to counter the real thrust of the respondent’s objection that none of the ouster clauses contained in any Decree prior to 1st October, 1979 could validly take effect as an existing law. “Existing law” is defined in Section 274 (4) (b) as meaning any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date. Learned counsel observed that Decree No. 10 of 1976 has expired, i.e., having been originally limited to endure only for a specified period by a distinct provision. It merely had for its object the continuance of previous temporary enactments for period now gone by the effluxion of time. He also observed that Decree No. 18 of 1977 is spent, i.e.,  the enactment is spent or exhausted in operation by the accomplishment of the purposes for which it was enacted. It was contended by learned counsel for the appellant that the respondent’s right to immunity from civil action had not accrued before then and he referred us to the cases of Abbot v. Minister of Lands (1895) AC 425; Reynolds v. Attorney-General of Nova Scotia (1896) AC 240.

I have examined these cases and found that they are distinguishable on the facts. In the case of Abbot. v. Minister of Lands (supra), the Privy Council had to consider whether the saving proviso of the repealing section, i.e., Section 2 of the Crown Lands Alienation Act of 1861 enabled the appellant still to make additional purchases as if Section 22 remained in force. The Lord Chancellor, delivering the judgment of their Lordships, said at p. 429:
“The words relied on are these:-

‘Provided always that notwithstanding such repeal-

(a)  All rights accrued and obligations incurred or imposed under or by virtue of any of the  said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal.’ ”

“The appellant argued that under the repealed enactment, he had a right to make the additional conditional purchase and that this was a ‘right accrued’ at the time of the Act of 1884 was passed, and that notwithstanding the repeal it remained unaffected by such repeal.”

“It is important to consider what a holder in fee simple of Crown land was enabled to do by Section 22 of the Act of 1861. The section in terms empowers such a holder to make conditional purchases adjoining such lands provided that the area of land so conditionally purchased does not, with the lands held in fee simple, exceed 320 acres. But this, though in form, it was an enabling power, was in reality in the nature of a restriction.

The substantial effect of Section 22, therefore, was that whilst it limited the fee-simple holder of lands to conditional purchases which with the lands so held in fee simple should not exceed 320 acres, it dispensed with the condition of residence on the lands conditionally purchased.

Their Lordships think it fallacious to say that the section in question conferred on the fee-simple holder of land the ‘right’ to make conditional purchases. The only right which, as it appears to them can be said to have been conferred was that he should be absolved from the condition of residence in the case of lands which he had conditionally purchased……..
It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far reaching.
It may be, as Windeyer, J., observes, that the power to take without impropriety be termed a ‘right’. But the question is whether it is a ‘right accrued’ within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words ‘obligations incurred or imposed. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right cannot properly be deemed a ‘right accrued’ within the  meaning of the enactment.” (Underlining mine)

In the instant appeal, the Military Governor not only set up the Investigation Panel but also promulgated the Edict No. 10 of 1977 to carry out the recommendations and  the findings. In my opinion, these steps were acts done by the Military Governor toward availing himself of the immunity from suits or civil actions by any injured party provided by the Decree.

The case of Reynolds v. Attorney-General for Nova Scotia also cited by the appellant’s counsel is of no assistance to the appellant either. In that case as the facts showed, the advantage sought to be exercised by the appellant was not an accrued right but a privilege. The Head Note of the case is very short and I will take advantage of that fact to reproduce it. It reads:

See also  Efcc V. Reinl (2020) LLJR-SC

“The appellants having obtained a licence to work for two years under Section 95 Chapter VII, of the Revised Statute, 5th Series afterwards applied under the same statute for  a renewal thereof, but in the meantime Section 95 had been repealed by an amending Act of 1889 – Held: that at the date of the application to renew the power to grant it was gone for even if the amending Act were so construed as not to interfere with vested rights, the appellants’ possessed a privilege and not accrued right in reference to the removal sought.”

This was a decision of the Privy Council. Lord Morris, delivering the judgment of their Lordships, said at page 243:
“Several questions were raised by the respondents as affecting the validity of this lease; but the case turns upon one question namely whether the renewal licence of August 21, 1889, was valid and authorised by statute. Now the Commissioner had no power to grant any renewal licence except under the statutable authority conferred on him by Section 95 of Chapter VII of the Revised Statutes, 5th Series, which enacts that ‘any licence to work shall be for a term of two years from the date of application and shall be extended to three years upon the additional payment by the holder of the licence of one-half of the amount originally paid for such licence.’ The amending Act of April 17, 1889, repeals, amongst others, Section 95 and amends Section 91 by substituting ‘lease’ for ‘licence to work’. When the appellants applied  for renewal for one year on August 21, 1889, the power of the Commissioner to grant such renewal was gone, as the section of the statute conferring it had been repealed. It has however been contended on the part of the appellants that the Act of 1889 ought not to be construed so as to have the effect of taking away their right under Section 95 of Chapter VII. No doubt the maxim ‘Omnis nova constitutio futuris forman imponere debet non praeteritis’ has been applied to the extent that the new law ought to be construed so as to interfere as little as possible with vested rights, and in Main v. Stark 15 App Cas 388 the Earl of Selborne says ‘words  not requiring retrospective operation so as  to affect an existing status prejudicially ought not  to be so construed’ yet the result is that in all cases it is necessary to ascertain what the  legislature meant. In the present case the only existing licence the appellant had when the amending statute passed was one  for two years expiring August, 1889. They had a privilege to get an extension for one year under Section 95, but had no accrued right and the object of the legislation of 1889 was to get rid of licences and substitute leases.” (Underlining mine.)

In the instant appeal, the position is quite different. The  right to the statutory defence had vested although no action had been instituted. It is fallacious to assume that until an action is instituted, the right to the defence is not an accrued right.

It seems to me that by virtue of Section 6(1) of the Interpretation Act the previous operation of section 6(3) of Decree No. 10 of 1976 which stipulates that “no civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceedings have been or is instituted before or after the commencement of the Decree, the proceeding shall abate, be discharged and made void.”(Underlining mine)

is unaffected. The provisions of that subsection took  away the  right of any person to take or institute civil proceedings and the right of the court to adjudicate on the matter.

Similarly, the previous operations of the provision of Section 1(2) of  Decree No. 18 of 1977 which reads”

“The question whether any tribunal or inquiry to which subsection (1) of this section relates was or has been validly instituted or constituted or whether any law, Edict or subsidiary instrument under which the tribunal or inquiry was instituted (or purported to have been instituted) had been validly made shall not be inquired into in any court, and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such question the action or proceeding shall be void.”

is unaffected. The jurisdiction of the court to entertain the question was definitely taken away.

Similarly, the previous operations of the provision of subsection (2) of Section 2 of Decree No. 18 of 1977 which reads:

“The question whether any Edict or subsidiary instrument or any act of thing to which subsection 1 of this section relates was validly made or done shall not be enquired into in any court, and if any action or other proceeding whatsoever has been or is instituted in ay court in respect of any such Edict or subsidiary instrument or act or thing, the action shall be void.”

is unaffected. The jurisdiction of the court to entertain the question was definitely taken away. Subsection (1) of Section 2 of Decree No. 18 of 1977 validated inter alia any Edict effecting the forfeiture or other disposal of the property of any person. In the con of this appeal, it validated Edict No. 10 of 1977, forfeiting appellant’s property and vesting title to it in Bendel State.

These provisions by declaring any proceedings instituted void, clothed the military governor with immunity. Immunity is a right and it is preserved by Section 6 (1) (c) of the Interpretation Act.

The learned author of Salmond on Jurisprudence 12th Edition, dealing with Legal Rights in a wider sense of the term said at page 231:

“In this generic sense a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law. Of rights in this sense there  are four distinct kinds. These are (1) Rights (in the strict sense) (2) Liberties, (3) Powers and (4) immunities.”

and at page 231, he says:

“The term ‘right’ is used in a fourth sense to mean an immunity from the legal power of some other person. Just as a power is a legal ability to change relations, so an immunity is an exemption from having legal relation changed by another. The right of a peer to be tried by his peers for example was neither a right in the strict sense nor a liberty, nor a power. It was an exemption from trial by jury  -an  immunity from the power of the ordinary criminal courts.”

The immunity from court proceedings conferred by Decree No. 10 of 1976 and Decree No. 18 of 1977 is in my view not affected by the fact that the two Decrees cannot take effect as existing laws although they are existing laws within the definition of Section 274 because their provisions which are in conflict with the  1979 Constitution are impliedly repealed by the said Constitution.

Since writing this judgment, I have had the  pleasure and advantage of reading in draft, the judgment of my learned brother, Idigbe, JSC. I entirely agree with him. For the above reasons and the reasons contained  in the judgments of my said learned brothers, Sowemimo, JSC., and Idigbe, JSC., I would dismiss the appeal and I hereby dismiss it and affirm the decision of the Federal Court of Appeal and the High Court.

The appellant shall pay the respondent costs fixed at N300.00.

K. ESO, J.S.C.: I have had the advantage of a preview of the  judgment just read by my learned brother, Sowemimo, JSC. I agree with my learned brother that the appeal should be dismissed. I have also had a preview in draft of the judgment which has just been read by my learned brother, Idigbe, JSC. Having gone through the reasoning of the learned justice, I have decided not to add anything more in this judgment as it seems to represent the view I have also taken in this appeal, especially on the historical approach and question of legislative judgment. I for my part will also not extend the ratio in the Lakanmi case beyond the facts of that case. I will therefore endorse the reasoning and dismiss the appeal with costs as contained in the judgment of my brother, Sowemimo, JSC.

A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Sowemimo, JSC., I agree with him that the appeal must be dismissed.

For purposes of the brief comment that I make hereunder, I shall adopt the facts as stated in that judgment except in so far as I need any part of them for my comment. Both the court of first instance, (the Benin High Court) and the Federal Court of Appeal had held that the Benin High Court had no jurisdiction to entertain the suit of the appellant. I think it is correct to say that the legislation in controversy in this suit include the Public Officers  (Special Provisions) Act, 1976 – (hereinafter known as act No. 10 of 1976) from which the Military Governor of Bendel State derived his power to set up the Maidoh Assets Verification Panel and, following its report, to forfeit the property of the appellant; The Public Officers and Other Persons (Forfeiture of Assets) (No.2) Edict 1977 (hereafter known as Edict No. 10 of 1977) which actually forfeited the appellant’s property, and the Tribunals or Inquiries (Validation etc.) Act 1977 hereafter known as Act No. 18 of 1977 which validated all the  actions taken pursuant to the provisions of Act No. 10 of 1976.

Before returning to these various statutes it may be necessary to set down the questions for determination in this appeal as they appear in the appellant’s counsel’s brief of argument. They were:-

“(i) Was the Federal Court of Appeal right in holding that  under Section 7 (1) of the Public  Officers (Special Provisions) Act 1976, the definition of Public Officer includes the appellant

(ii)    Whether the very wide provision of the applicable law that gave the Panel right to regulate its proceedings authorises it to ignore the principles of natural justice, or to act judicially or fairly.
(iii)   Whether the provisions of laws that oust the jurisdiction of courts prior to the coming into existence of the Constitution in 1979, still have effect over matters that arose prior to the coming into being of the Constitution, but still within the period of limitation.

(iv)   Whether there was sufficient evidence before the learned Justices of the Federal Court of Appeal to hold that there was a defect in the proceedings of the Panel.

(v)    Whether the Federal Court of Appeal was correct in holding that Section 2(1) of the Tribunal or Inquiries (Validation etc.) Act 1977 No. 18 apply so as to validate the order for the forfeiture of the appellant’s assets”

It is clear that no arguments were offered in relation to questions (ii) and (iv) above and I think they can be ignored for purposes of the resolution of the  main issues in this appeal.

On various reasonings, I am inclined to agree with the two lower courts that the Benin High Court had no jurisdiction to entertain the appellant’s suit and this is in spite of the fact that he filed it on 2nd October, 1979, one day after the commencement of the Constitution of the Federal Republic of Nigeria 1979 (hereinafter known as “The Constitution of 1979”). Learned counsel for the appellant, Chief Williams, SAN., had submitted that the question whether a court has jurisdiction is to be determined when that jurisdiction is invoked irrespective of when the cause of action arose. No autdority was cited to support th`s contention. I have myself been unable to find any authority directly on the point. It is however my respectful view, and in this I agree with the Federal Court of Appeal, that jurisdiction of the court should be examined not when it is invoked but when the cause of action arose. It seems to me to accord more with reality. Chief Williams himself conceded, as he had to, that the obligations and rights of parties must be considered in the light of the law at the time the cause of action arose. It seems to me again that whether a court has jurisdiction to enforce those rights or to entertain matters relating to them has to be considered at the same time- i.e., when the  cause of action arose. In the instant case, although the matters in respect of which appellant complains arose in 1977, he did not file his suit until 2nd October, 1979. In other words, the suit was in respect of past transactions. The appellant’s cause of action can be said to have arisen on the date when Edict No.10 of 1977 was promulgated and his property forfeited. Whatever cause of action he may have had in 1977, it was clear that as the  law stood then he could not enforce any rights he may have had in any court of law. This was because the jurisdiction of the courts to entertain matters related to actions such as was taken in edict No. 10 of 1977 had been ousted by Section 6(3) of Act No. 10 of 1976 and Section 2 (2) of Act No. 18 of 1977. Those sections provide as follows:-

“6(3)  No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if such proceeding has been or is instituted before or after the commencement of this Decree, the  proceedings shall abate, be discharged and made void” ; and 2(2):A

“The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court, and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void:

If the jurisdiction of the courts was ousted when the appellant’s cause of action arose, I have not been persuaded that jurisdiction which was then ousted should now be assumed merely because the appellant chose to institute his suit after 1st October, 1979.

Another way of looking at the issue of jurisdiction since the appellant’s suit was filed after the commencement of the Constitution of 1979, is to look at some provisions of the Constitution particularly Sections 6(6) (d) and 4 (8). Section  6(6) (d) provides as follows:-

“The judicial powers vested in accordance with the foregoing provisions of this section –

(a)  ……

(b)  ……

(c) ……

(d)  shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”

This provision seeks from 1st October, 1979, to exclude the jurisdiction of the courts in relation to Decrees and Edicts made on or after 15th January, 1966, which were existing laws on 1st October, 1979. The very relevant words in the provisions are existing law and competence. As was mentioned earlier in this judgment the three legislation in controversy in this suit were Act No. 10 of 1976, Edict No. 10 of 1977 and Act No. 18 of 1977. It is my view that they were existing laws on 1st October, 1979, having regard to the  definition of existing law in Section 274(4) (b) of the Constitution. There, “existing law” means any law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed made before that dates comes into force after that date. These Acts and Edict were not expressly repealed as on 1st October, 1979 although both Sections 1, 2, and 5 of Act No. 10 of 1976 (29th July, 1975 to 1st January 1976) and Act No. 18 of 1977 (29th July, 1975 to 30th September, 1977) were spent as on that date. I am unable to accept the contention of learned counsel for the appellant that existing law can only be read in terms of whether the law is one which can be made by the National Assembly or a House of Assembly (Section 274 1(a) and (b) of the Constitution). A law, in my view has to be an existing law before an attempt is made at modification of it to conform with the provisions of the Constitution. If such a modification is not possible, or if the law contains provisions which are inconsistent with specific provisions of the Constitution e.g. Section 4(8), Chapter IV etc. then the law is void for inconsistency pursuant to section 1 (3) or 274(3) of the Constitution.

On the question of competence, I am also of the view that the word connotes a much wider concept than was urged on us by learned counsel for the appellant. He had submitted that the  word should be construed in its narrower sense as being limited to the  qualification of the law maker as a legislature. I remind myself of the words of this court in Nafiu Rabiu v. The  State (1980) 8-11 S.C. 130 at p. 195 as per Idigbe, JSC., and would rather hold that the Constitution had used this word in its broader sense. It, in my view, involves legal capacity and power.

I think that it was the intention of the framers of the Constitution, as can be gleaned from the wording of Section 6(6) (d), that no court, even after 1st October, 1979, should have jurisdiction to question any Edict or Decree made between 15th January, 1966 and 30th September, 1979, on the ground that the person or authority which made it had no capacity or power to make it.  

I would even go further and say that once it is conceded that competence could involve questions of legal capacity and power, questions should not arise as to whether the law was made in exercise of legislative authority only or whether it purported to exercise judicial authority too. Such a law cannot in my view be questioned on the ground that it is a “legislative judgment.” (see: E.O Lakanmi & Anor. v. Attorney-General (West) & 2 Ors. (1974) 4 ECSLR 713.) It has always to be remembered that the capacity or power of the Federal Military Government to make law was very wide indeed. That power was unfettered not even by the separation of powers implicit in the 1963 Constitution of Nigeria (See Section 1 (2) and section 1 of schedule 2 of Act No. 1 of 1966 which was re- enacted by Section 14(1) and (2) of the Constitution (Basic Provisions) Act No. 32 of 1975. For ease of reference this section had a proviso to this effect:

“Provided that this Constitution shall not prevail over a Decree, and nothing in this Constitution shall render any provision of a Decree void to any extent whatsoever”

Section 14(2) of Act No. 32 of 1975 provided specifically as follows:-

“(2)  The provisions of the Constitution of the Federation and of the States not suspended by Decree No. 1 of 1966 to the extent that those provisions were in force immediately before the commencement of this Decree, shall continue in force as modified or amended by Decree No. 1 of 1966 or any other Decree but shall for the avoidance of doubt, have effect subject to this Decree”

In effect the unsuspended provisions of the 1963 Constitution of Nigeria – including the provisions relating to the judiciary – were made subject to a Decree.

I think that the framers of the Constitution in inserting Section 6(6) (d) into the  Constitution no doubt remembered Lakanmi’s case and the Federal Military Government (Supremacy and Enforcement of Powers ) Decree No. 28 of 1970 which sought to avoid it. It is my view therefore that the true meaning of Section 6(6) (d) is that no court in Nigeria has jurisdiction to question the constitutional validity of any Decree or Edict made between 15th January, 1966 and 30th September, 1979, in respect of the power or capacity of the authority that made it. But it is necessary to explain that if in respect of a cause of action which arises after 1st October, 1979, the question is that the provision of any Decree or Edict which is an existing law under the Constitution is inconsistent with the provisions of the Constitution is inconsistent with the provisions of the Constitution of 1979, courts would have jurisdiction to declare such Edict or Decree void for inconsistency.
On this reasoning, and in the particular circumstances of the case in hand, I also hold that Section 6(6) (d) would operate to deprive the courts of jurisdiction to entertain the appellant’s claims.

Even Section 4(8) of the Constitution would not assist the appellant on the issue of jurisdiction. Section 4(8) of the Constitution provides in effect that:

“…..the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

Although I have held that Act No. 10 of 1976 and Act No. 18 of 1977 are existing laws under the Constitution of 1979, there is no doubt that their Sections 6(3) and 2(2) respectively are inconsistent with and repugnant to Section 4(8) of the Constitution and must be taken to be impliedly repealed. See Butler v. Attorney General (Victoria) 106 CLR 286 at 275 and 276.

But that is not the end of the matter as far as the appeal in hand is concerned. This is because it is my view that although the two Acts are impliedly repealed, Section 6(1) (b) (c) and (e) of the Interpretation Act No. 1 of 1964 sustain the effect of the provisions of those Acts (including Sections 6(3) and 2(2) of Act No. 10 of 1976 and Act No. 18 of 1977 respectively) and what was done under them. Section 6(1) (b) (c) and (e) and 6(2) of the Interpretation Act, No.1 of 1964 provide as follows:
“6(1). The repeal of an enactment shall not……….

(b)   affect the previous operation of the enactment or any thing duly done or suffered under the enactment

(c)    affect any right, privilege, obligation or liability, accrued or incurred under the enactment…

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment……
2)     when an enactment expires, lapses or otherwise ceases to have effect, the foregoing subsection shall apply as if the enactment had then been repealed”

Subsection (c) of Section 6(1) of the Interpretation act applies against the appellant particularly in relation to “right accrued or liability incurred under the  enactment.” The clauses ousting the jurisdiction of the courts were a shield operating to the  benefit of the respondents and were in effect a right of immunity from suit. Even though the Acts (or those sections of them referred to) were impliedly repealed, that right is an accrued right which survives. On the other hand, the forfeiture of the appellants’ property is a liability incurred under the repealed enactments. Subsection (e) of Section 6(1) of the Interpretation Act clearly also applies against the appellant. Notwithstanding the implied repeal “the investigations ……in respect of any such right…liability” contained therein are apposite.

As regards Section 6(1) (b),  the emphasis may be placed on “anything duly done or suffered under the enactment” duly done, can be loosely taken as validly done. The appellant’s property as herein mentioned was forfeited by Edict No. 10 of 1977. It was contended among other things that that legislation was “legislative judgment” in the sense that it amounted to usurpation of the judicial powers of the courts – since it compulsorily acquired the appellant’s property without the benefit of a trial such as is possible in a court. Such legislation it was argued was invalid and therefore could not be validated by Section 2(1) of Act No. 18 of 1977. I have in an earlier part of this judgment briefly considered and rejected this proposition on ‘legislative judgment’ on the ground of the unfettered power of the Federal Military Government to make laws having regard to Acts Nos. 1 of 1966 and 32 of 1975. It is therefore my view that the Military Government of Bendel State in promulgating Edict No. 10 of 1977, validly exercised the powers conferred on him by Act No. 10 of 1976. Both the Edict and Act No. 18 of 1977 which validated it are therefore valid.

Secondly, it was contended that both the instrument setting up the  Verification Panel (published in Extra – ordinary Gazette of Bendel state No. 14 Vol. 14 of 14.2.77) in which the appellant’s name was included among the public officers whose assets were to be verified, and Edict No. 10 of 1977 which actually forfeited his property, were not validly made since the appellant was not a public officer within the meaning of Act No. 10 of 1976. The appellant had retired from the public service of Bendel State in 1972. Section 7(1) of Act No. 10 of 1976 provides as follows:-

“7(1) In this Decree “public officer” means any  person who holds or has held any office in –

(a)……………

(b)the public service of a state within the meaning of the corresponding provisions of the Constitution  of that State

(c) ………….

(d) …………………and for the purposes of this Decree only includes any person who at any time before the commencement of this Decree held office as a member of the Supreme Military Council or the Federal Executive Council or as the Military Governor (or Administrator) of a state or as Commissioner in the Government of the Federation of  a State.”

It was argued that the appellant having retired in 1972 could not come within the group contemplated in the expression ” has held office” in Section 7(1). Although the Act was made retrospective to 29th July, 1975, it was really signed on 23rd February, 1976. Those public officers who held office before their dismissal in August and September 1975, could technically be said to have held office in the public service. It was further contended that it would be absurd to hold that “have held office” extends to public officers who held office even before 1960 which would be the inevitable interpretation unless the words were given a restrictive interpretation. “Has held office”, it was further argued, must be limited to those members of the Supreme Military Council and Executive Councils who had been dismissed during the purge.

To fully determine the appellant’s real position, it may be necessary to state briefly some of the facts surround the promulgation of Act No. 10 of 1976 of which this court can take judicial notice. These facts include these; that there was a military coup d’etat and  counter coup on 15th January, 1966, and 29th July, 1966, respectively following which a Federal Military Government was set up; that that Government promulgated Act No. 37 of 1968 (repealed in 1979); that Section 13 of that Act defined public officer as any person who held office on or after 1st October, 1960; that Act also made a provision for the investigation of assets of public officers and investigations were carried out; that on 29th July, 1975, a bloodless coup d’etat brought to power another group of Army officers dissatisfied with the tone and style of government by the previous military administration; that sometime after 29th July, 1975, there was a general purge in the public service and several public officers including those who may have been appointed before 1st October, 1960 were summarily dismissed or retired; that the military regime promulgated Act No. 10 of 1976 which dealt with matters connected with those dismissals. But it also made provision for holding of enquiries for the verification of assets or public officers with a view to determining those who may have been corrupt or who may have corruptly enriched themselves.

Viewed in the con of these facts, it can be fairly inferred that it was the intention of Act No.10 of 1976 that the  enquiries should involve the widest possible group of public officers including even those who may have held office before 1st October, 1960 and who were not covered by the Act No. 37 of 1968.

In my view, therefore, the appellant was a “public officer” within the meaning of Section 7 (1) of Act No. 10  of 1976. It follows that the Instrument to which I have made reference and Edict No. 10 of 1977 were validly made in relation to him. In any case even if I am wrong in this conclusion, Section 3 of Act No.18 validates what was done in relation to him. Section 3 which was widely couched provided that:

“3(1) For the purposes of Section 1 or 2 of this Decree it shall be immaterial –

(a) that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power or that any act or thing done  was expressed as having been  done in exercise  of any power conferred under any particular law.

(b) ……….

To return to the Interpretation Act, 1964, it seems to me that for purposes of subsection (b) of Section 6(1) what was done to the appellant in  terms of the inclusion of his name in the Instrument and the forfeiture of his property was duly done. As regards anything “duly suffered under the enactment” also contained therein, this to my mind would apply to the  forfeiture of the appellant’s property pursuant to Edict No.10 of 1977.

I would wish to end this comment by making two observations. Firstly, I would say, as has been said, that the various laws which have been in controversy in this suit must be viewed against the background of the circumstances prevailing in this country at the time they were made. It seems to me that the promulgation of the Constitution of Nigeria (Consequential Repeals) Act No. 105 of 1979 was a recognition that  most of these circumstances were no longer tenable. Secondly, learned counsel to the appellant in his brief urged this court not to be influenced by the fact that a declaration in appellant’s favour might lead to what the Federal Court of Appeal called a ‘floodgate’. He relied on the views of this court in Eruku v. Military Governor of Mid-Western State of Nigeria (1974) 1 All NLR 163, 175. There is no doubt that if all the enquiries and dismissals carried out in this country between 1975 and 1977 were to be re-opened and become the subject of judicial adjudication, a most chaotic situation would arise and the courts would probably be unable to cope. I do agree with learned counsel for the appellant that that danger must not be the determining factor in a suit such as this. It has certainly formed no part of my consideration of the issues raised in this suit. Nevertheless, I am of the view that no court which is responsive to the values of the society in which it operates, can afford to ignore it. For these reasons, and for the  more detailed reasoning contained in the judgment of my learned brother, Idigbe, JSC., a draft of which I also had an opportunity of seeing, I would affirm the judgments of the Benin High Court  and the Federal Court of Appeal. The order for costs is as contained in the judgment of my learned brother, Sowemimo, JSC.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgments read by my learned  brothers, Sowemimo and Idigbe, JJSC. I entirely agree with them that the appeal should be dismissed.

The Panel that investigated the assets of the appellant was appointed by the Military Governor of Bendel State in exercise of the powers conferred upon him by Section 3 of the Public Officers (Special Provisions) Decree 1976 (now Act No. 10 of 1976) and by virtue of all other laws enabling him in that behalf. Although the Instrument that constituted the Panel was issued on the 14th day of February, 1977, it was deemed to have come into force on the 24th day of January, 1977. Following the  submission of the Panel’s report the Military Governor promulgated an Edict namely, Public Officers and Other Persons (Forfeiture of Assets) (No.2) Edict, 1977, which came into operation on the 19th July, 1977, and by the provisions of which the appellant’s assets were forfeited.

Now Section 3 of the Public Officers (Special Provisions) Act, 1976, reads:
“3 – (1)  For the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself or any other person, the appropriate authority may constitute a panel to conduct an investigation into any  matter with which the  officer has been concerned in the performance of his duties or to conduct an investigation into the assets of the public officer.

(2) A panel constituted under subsection (1) of this section-

(a)  shall consist of such persons, and shall be presided over by such one of them, as the appropriate authority may direct; and

(b) may, subject to any general  or specific direction that may be given in that behalf by the  appropriate authority, regulate its proceeding as it may deem fit.”

and Section 4 of the 1976 Act also reads:

“4 – (1)  The Investigation of Assets (Public Officers and Other Persons) Decree 1968, or so much of that Decree as the appropriate authority may direct, shall apply in respect of investigations into, and forfeiture of the assets of a public officer under this Decree to the same extent as it applies in respect of an inquiry conducted under that Decree, but shall, for the purposes of this Decree, have effect as if –

(a) the references in the Decree of 1968 to the appropriate authority were references to the appropriate  authority under this Decree; and

(b) the references in that Decree  to a tribunal of inquiry and the chairman of a tribunal of inquiry were references to a panel constituted pursuant to Section 3 of this Decree and chairman of that panel respectively.”

Learned counsel for the appellant canvassed that the  provisions of Section 3 subsection (1) of the  1976 Act added nothing new to the law in existence at that time which applied to the investigation of the assets of public officers; that is to say that Investigation of Assets (Public Officers and Other Persons) Act, 1968, (No. 37 of 1968) . He submitted that Section 3(1) of the 1976 Act was unnecessary because the 1968 Act had already made adequate provisions for the same purpose and referred in particular to Section 4 of the 1968 Act  which dealt with inquiries by tribunals of inquiry. On this premises he submitted, relying on the case of Queen v. Overseers of Tonbridge (1884) 13 QBD 339 at p. 342, that whenever a situation arises where a subsequent enactment is capable of more than one meaning the court should prefer the meaning which would not reduce the earlier enactment to silence. And that this should be so even if it means preferring some other meaning to the plain grammatical construction of the words of the enactment.

This may well be so if the Investigations of Assets (Public Officers and Other Persons) Act, 1968 were a living law. But it has since been repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Act, 1979 (No. 105 of 1979). So that any meaning which we may now give to Section 3 of the 1976 act will not per se have the effect of rendering the 1968 Act silent since it had already become a non-existing law in 1979. It follows that the situation which arises in the present case is not an all fours with that which prevailed in the Queen v. Overseers of Tonbridge and therefore the principle laid in that case cannot apply to the case in hand.

On the argument that the 1976 Act is an ex post facto legislation which was meant to serve a limited purpose and that it became fully spent as soon as it was enacted, I accept that Sections 1 and 2 thereof were spent on 1st January, 1976. However the remaining sections of the Act and in particular Sections 3, 4 and 7 do not seem to me to have been spent. The Act itself has not specifically made such provision as in the case of Sections 1 and 2. that being so, I am of the opinion that the Military Governor of Bendel State was right in setting up the Panel that investigated the appellant’s assets. And even if he was wrong in doing so (which I do not hold) his action subject to what follows hereinafter appears to me to have been validated by the provisions of the Tribunals or inquiries (Validation etc.) Act, 1977 (No. 18 of 1977).

It was submitted by learned counsel for the appellant that because the 1976 Act became spent on 1st January, 1976 the Military Governor could not have lawfully set up the Panel that investigated the appellant’s assets nor promulgate the 1977 Edict by which the appellant forfeited the assets. On the basis of that submission it was argued that Section 2 subsection 1(a ) of the 1977 Act did not validate the establishment of the Panel of Investigation or the 1977 Edict which were respectively set up and promulgated by the Military Governor. The reason given among others in support of the argument being that under the 1979 Constitution neither the National Assembly nor the House of Assembly of Bendel State has power to validate unlawful compulsory acquisition or seizure of property by the Military Governor. Learned counsel stated further that Section 2 subsection 1(a) of the 1977 Act was not an existing law under Section 274 of the 1979 Constitution at the time the appellant brought the action against the respondents, namely the 2nd October, 1979.

Now Section 2 subsection (1) (a) of the 1977 act provides:

“Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the  appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which Section 1 of this Decree (Act) applies respecting –

(a) the forfeiture or other disposal of the property of any person; or

(b)…
shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.”

I propose to defer considering the points raised here until later in the judgment in order to deal with the contention of the appellant on the akin question of jurisdiction under subsection (2) of Section 2 of the 1977 Act. The subsection states:

“The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired in any court; and if any action or other proceedings whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void.” (underlining mine)

Learned counsel for the appellant submitted that in view of the provisions of Section 4 subsection (8) of the 1979 Constitution which provides –

“Save as otherwise provided by this Constitution…. the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

the Bendel State High Court had jurisdiction to entertain the appellant’s action when it was instituted on the 2nd October, 1979, since the ouster by Section 2 subsection (2) of the 1977 Act ceased to be an existing law by virtue of Section 274 of the 1979 Constitution. While I agree that the provisions of Section 2 subsection 2 are inconsistent with the provisions of Section 4 subsection (8) of the Constitution and therefore void by virtue of Section 1 subsection (3) of the Constitution, I do not with respect accept the  submission that the High Court of Bendel State now has jurisdiction to entertain the appellant’s claim. The effect of Sections 4(8) and 1(3) of the Constitution on Section 2(2) is tantamount to a repeal – see Section 6 subsection (2) of the Interpretation Act, 1964. But as the appellant’s cause of action arose in 1977 when Section 2(2) of the 1976 Act was extant and the appellant could not at that time bring his claim to court, I am of the opinion that he cannot even now properly do so in view of the provisions of Section 6 subsection (1) (a), (b) and (d) of the Interpretation Act, 1964 which reads as follows:

“6 – (1)  The repeal of an enactment shall not –

(a) revive anything not in force or existing at the time when the  repeal takes effect;

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;…

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment.”

Consequently, the jurisdiction which the courts now enjoy by virtue of Section 2 subsection 2 becoming void can only be invoked, in my opinion, in respect of a cause of action which arose as from or after the 1st day of October, 1979, when the  Constitution came into operation.

I am unable also to accept the submission that Section 2 subsection (2) was not an existing law under Section 274 of the 1979 Constitution. The expression “existing law” is defined under Section 274 subsection (4) (b) to mean:
“any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force (i.e. 1st October, 1979) or which having been passed or made before that date comes into force after that date;” (underlining mine).

The 1977 Act was in force on 1st October, 1979 when the Constitution including Section 274 thereof came into force. It is therefore an existing law. If it had been repealed or became nonexistent by 1st October, 1979 it would have been otiose to declare it inconsistent with Section 4 subsection (8) of the Constitution. In other words for any law to be regarded as inconsistent with the 1979 Constitution such law must as a condition precedent satisfy the definition  of an “existing law” under Section 274.

I will now return to learned counsel’s submissions in respect of Section 2 subsection (1) of the  1977 Act. Following the preceding observation which I made on “existing  law” I am convinced that the provisions of section 2 subsection (1) are also extant. If so, can this court in the light of the provisions of Section 6 subsection (6) (d) of the 1979 Constitution consider the validity of the 1977 Act The said Section 6 subsection (6) (d) provides –

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(d)    shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issues or question as to the competence of any authority or person to make any such law.”

Learned counsel for the appellant had argued that this means that the validity of a Decree (Act) or Edict cannot be challenged on the ground of the competence of the law-maker to make the Decree or Edict. He then urged that the court ought not to construe the provisions as saying that the court has no jurisdiction to pronounce on the validity of a Decree or Edict on any other ground. Such construction he said, would render the courts unable to pronounce an Edict invalid on the ground that  it is inconsistent with a Decree.

In my view even if the 1976 Act as a whole had become spent (which I do not accept) the provisions of Section 2 subsection (1) validated the action  of the Military Governor of Bendel State in setting up the Panel and promulgating the forfeiture Edict; the fact that neither the National Assembly nor the Bendel State House of Assembly may have power to validate unlawful compulsory acquisition or seizure of property by the Military Governor notwithstanding. The effect of the provisions of Section 6 subsection (6) (d) is clearly to retain the fetter previously placed on the Courts by the successive Military Regimes which ruled this country from 15th January, 1966 to 30th September, 1979, not to question the efficacy of the laws which they promulgated. I am of the opinion that no court can in view of the provisions of Section 6 (6) (d) of the Constitution have any jurisdiction to declare that the appropriate authority that promulgated a Decree or Edict had no power to do so.

This is not to any that our courts cannot now deal with the validity or otherwise of any Edict vis-a-vis a Decree. On the contrary it is quite clear from the provisions of Section 274 subsection (3) (a) of the 1979 constitution that despite the limitation imposed by Section 6 subsection (6) (d) the courts now have jurisdiction to pronounce on the validity of any Decree or Edict on the ground of its inconsistency with other laws. Section 274 subsection (3) reads:

“(3) Nothing in this Constitution shall be construed as effecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with  the provision of any other law, that is to say –

(a) any other existing law;

(b) a Law of a House of Assembly;

(c) an Act of the National Assembly; or

(d) any provision of this Constitution.”

It was also argued that the appellant who retired from the public service of Bendel state in 1972 could not have been caught by the provisions of the 1976 Act because he was not a “public officer” as defined by Section 7 subsection (1) of the 1976 Act. With respect I am unable to accept the argument. The subsection defines a “public officer” to mean inter alia a “person who holds or has held any office in the public service of a state.” It is to be noted that the 1976 Act though promulgated on the 23rd day of February, 1976, was made to have retrospective operation with effect from 29th July, 1975. So that in their literal as opposed to grammatical meaning the words “has held” can only refer to a public officer who held office before the 29th day July 1975 and the appellant was such an officer. The question as to how far back in time should the words be construed to apply is in my view immaterial as the 1976 Act did not make any provision in that respect. But if the provisions of Section 4 of the 1976 Act are to apply then the relevant date will be the 1st day of October, 1960, because the words are defined under Section 13 subsection (1) (a) of the Investigation of Assets (Public Officers and Other persons) Act, 1968 to mean “any person who on or after 1st October, 1960 holds or has held any office in any of the public services in Nigeria.” It appears that the appellant is in any case caught by either of the definitions and cannot on that score escape coming under the ambit of the provisions of the 1976 Act.

To summarise, I am of the view that the Panel of Investigation and the 1977 Edict promulgated by the Military Governor of Bendel State were valid by virtue of the provisions of the 1976 Act. If I am wrong in so holding, the action of the Military Governor in that respect was validated by the provisions of Section 2 subsection (1) of the 1977 Act. I also hold that no court has the power in view of the provisions of Section 6(6) (d) of the 1979 Constitution to determine any issue or question as to the competence of the appropriate authority to make the 1977 Act and finally that the appellant is a public officer as defined by Section 7(1) of the 1976 Act.

In conclusion, it is for the foregoing reasons and those amply stated in the  judgment of my learned brother, Idigbe, JSC., that I agree that the Bendel State High Court (per Ekeruche, CJ.) and the Federal Court of Appeal were right in their decisions. I too, accordingly, dismiss the appeal and make order as to costs as contained in the judgment of my learned brother, Sowemimo, JSC.


Other Citation: (1982) LCN/2169(SC)

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