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Home » Nigerian Cases » Supreme Court » His Highness Lamidi Olayiwola Adeyemi (Alafin Of Oyo) & Ors V. A-g., Oyo State & Ors. (1984) LLJR-SC

His Highness Lamidi Olayiwola Adeyemi (Alafin Of Oyo) & Ors V. A-g., Oyo State & Ors. (1984) LLJR-SC

His Highness Lamidi Olayiwola Adeyemi (Alafin Of Oyo) & Ors V. A-g., Oyo State & Ors. (1984)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, C.J.N. (Presiding): The Honourable the Chief Justice of Nigeria who presided over this panel agreed with the majority view at conference in this case and thus his vote is for the majority.

IRIKEFE, J.S.C.: The dispute between the Oyo Community and the Ogbomosho community (both in Oyo State) as to the precise boundary between them, their land area being contiguous, had existed before the advent of British colonial rule. An attempt, albeit unsuccessful, had been made in the Speed report by the British colonial administrators to demarcate a boundary between the ancient kingdom of Oyo and Ibadan; Such a boundary would have placed Ogbomosho on the same segment as Ibadan to the south.

In 1967 the Ogbomosho community issued out a writ – No.1/23/67 in the High Court of Western Nigeria sitting at Ibadan claiming as follows against the Alafin of Oyo and the Oyo community:

“(i) Declaration that the boundary between the lands of the Ogbomosho community and the lands of the Oyo community is the Ipeba Stream, and not the Oba Stream, (a detailed plan of which will be filed later).

(ii) An injunction restraining the defendant from exercising any right of overlordship over the area between the Ipeba Stream and Oba stream, property of the Ogbomosho community (a plan of which area will be filed later).”

The above action had not proceeded to trial before the Governor of Western Nigeria acting under powers vested in him under section 4 of the Local Government and Community Boundaries Settlement Law, Cap 69, Laws of the Western Region of Nigeria, 1959 referred the boundary dispute to the Boundary Settlement Commissioner – for settlement.

The Order making the reference which was contained in W.S.L.N. 114 of 1969 (Western State Legal Notice) reads:

“(1) This Order may be cited as the Local Government and Community Boundaries (Determination) Order, 1969.

(2) The boundaries or any parts of the boundaries, as the case may be, described in the first column of the schedule hereto and in respect of which there is subsisting any dispute between any local government councils or communities in the area or areas of authority of the local government councilor councils specified opposite thereto respectively in the second column of the Schedule, are hereby referred for determination by the Boundary Settlement Commissioner.”

This dispute relating to the communities in this appeal is listed as number 17 on the schedule.

The Commissioner, one M.E. Ogundare, was, at the time of his appointment more than 10 years old at the Nigerian Bar and thus qualified under the 1963 Constitution of Nigeria for appointment as a High Court Judge. Upon assuming the duties of his office Mr. Ogundare subscribed to an oath prescribed for boundaries settlement commissioners under section 3A of Edict No.5 of 1968 which reads:-

“I swear that I will well and truly serve the Western State of Nigeria in the office of Boundary Settlement Commissioner and will faithfully and impartially and to the best of my ability discharge the duties devolving upon me by virtue of my appointment and will do right according to law to all persons that may come before me, without fear or favour, affection or ill-will. So help me God.”

The above oath is undoubtedly identical in terms with the oath subscribed to by all judges of superior courts of record in this country, upon assumption of office.

Mr. Ogundare, who incidentally was later appointed a High Court Judge and has since been elevated to the Court of Appeal of this country, proceeded with the enquiry with which this case is concerned and on 29th January, 1971 delivered his finding in which, after a thorough and meticulous appraisal of the evidence adduced before him, he found inter-alia as follows:-

“The boundary above described is particularly described and delineated on Plan No. OGB.C./7/0 – OY.C.I and thereon edged Yellow. All land to the East of this boundary line is hereby declared to belong to the Ogbomosho Community and all land to the West of the land is declared to belong to Oyo Community” (Emphasis mine)

Being dissatisfied with the decision, the Oyo community sought to nullify it by applying for an order of certiorari in the High Court of the Western State, but Ademola Johnson, J. dismissed the application. The Oyos then went on appeal to the appeal tribunal constituted under the Local Government Boundaries Settlement Law and lost on 12th September, 1973. It was after the termination of the preceding actions that the Oyos filed the writ commencing this action and claimed as follows:

“(i) A declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare and dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice;

(ii) an order setting aside the said decision;

(iii) an injunction restraining the 1st defendant and all agents, officers and other servants of the 1st defendant from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs.”

At the High Court, Ibadan, Agbaje J. as he then was granted the reliefs claimed and the Ogbomoshos being aggrieved appealed against the decision to the Court of Appeal on a number of grounds. The Court of Appeal by a majority of two to one allowed the appeal and restored intact the decision of the Commissioner. Thus this appeal.

I must however mention that, although the appeal to the Court of Appeal was allowed by a majority of two to one, the two Justices of Appeal, Akanbi, J.CA and Orno, J.CA arrived at their conclusions through different routes as will be seen in the judgments to be read hereafter by my learned brethren.

In this court the Oyos relied on the following grounds of appeal:-

“The decision of the majority of the Federal Court of Appeal (Akanbi J.CA and Omo J.CA) to the effect that the Boundary Commissioner was competent to try the boundary dispute between Oyo and Ogbomosho Communities was wrong in law.

Particulars of Error

(a) Under the 1963 Constitution the judicial powers of the State were vested in the courts of law;

(b) The boundary dispute between Oyo and Ogbomosho Communities was a matter for determination by the exercise of the judicial powers of the State;

(c) The tribunal over which the Boundary Commissioner presided not being a court of law could not validly exercise the judicial powers of the State;

(d) Accordingly, it was not competent for the Boundary Commissioner to determine the aforesaid dispute;

(e) Even if (which is not conceded) the tribunal over which the Boundary Commissioner presided was a court of law the invalidity of the appeal provisions of the law cannot be severed from the part of the law which set up the Commission.

(f) Accordingly the part of the law which set up the Commission was also void.

(2) The majority of the Federal Court of Appeal erred in law in considering that the provisions of section 22 of the 1963 Constitution were relevant to the issues before them in the appeal and that the said provisions justified their conclusion that the tribunal over which the Boundary Commissioner presided was a properly constituted tribunal though not a court of law (per Akanbi J.CA) or was a properly constituted court of law (per Omo J.CA).

Further Particulars of Error

Section 22 of the 1963 Constitution does not confer judicial powers on a body which is not part of the courts of judicature but only lays down standards to be observed by courts of law and other tribunals.”

It is conceded in this appeal that the observance or non- observance of the rules of natural justice is no longer an issue. The issues germane to a decision have been argued firstly in the appeal tribunal, then at the High Court and thereafter on appeal to the Court of Appeal. The argument in the brief filed is not different. Briefly put it may be stated as follows:

Is it right as contended by Chief Williams that all justiciable issues can only be entertained in a regular court of law established under the judiciary, as the third arm of government, since according to counsel separation of powers is implicit in the Nigerian Constitution of 1963 Reliance was placed by counsel on Uyanage v. R. 1967 1 A.C. p.259 and Hinds vs. R. – 1977 A.C. p.195. Or is it, as contended by Dr. Ajayi, that although separation there is, in the 1963 Constitution, it is not so water-tight as to preclude the existence of other tribunals which are not courts of law as such, from being able to entertain justiciable issues

Section 22(1) of the Constitution of 1963 reads:-

“(1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.” (Emphasis mine)

(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.”

It would flow from the above that whereas a person charged with a criminal offence can only be tried in a court of law stricto sensu, all justiciable issues in civil causes may be tried by a court or a tribunal established by law in that behalf.

The Local Government Boundaries Settlement Law is such a tribunal within the intendment of the 1963 constitution. I take the view, however, that the ultimate in the limit of the jurisdiction of that tribunal is the ascertainment of a boundary and no more. It cannot confer title to land and purport to vest same in any community.

Jurisdiction for a declaration of title is conferred on the State High Court. Further, on the available evidence in this case, it has not been shown that all land within the Oyo Local Government Area of authority is vested in the Alafin of Oyo or similarly that all Ogbomosho land is vested in the Shoun of Ogbomosho. A boundary in this con can mean no more than the traditional or acknowledged sphere of influence either of Oyo or Ogbomosho.

It is not unusual for people on one side of a boundary to own land on the other. Very often a river constitutes a boundary between one community and another and people cross freely to the other side to exercise proprietory rights. Again if a tribunal, though not a court of law, can entertain justiciable causes, then the argument that the law setting it up is in conflict with the 1963 Constitution to the extent that it forbids an appeal to the Supreme Court, cannot hold. An appeal is a creature of statute. Section 51 of the Constitution of Western Nigeria confers appellate jurisdiction on the High Court from the decisions only of subordinate courts. The next channel of appeal from the High Court is the erstwhile Western State Court of Appeal by virtue of section 53 of the Constitution of Western Nigeria from which an appeal would lie to the Supreme Court by virtue of section 117 of the 1963 constitution. If I hold, as I do, that the legislature of Western Nigeria was competent to enact the law precluding an appeal beyond the Appeal Tribunal then the question of any conflict between that law and either the Constitution of the State or the 1963 Constitution would become non sequitor. I have refrained in this judgment from dealing with the question of severability. I think it is hypothetical in the con of this appeal.

On the whole I am satisfied that this appeal deserves to fail and it is hereby dismissed with N300 costs in favour of all respondents. This means in effect that the majority decision of the Court of Appeal which affirmed the decision of the Boundaries Settlement Commissioner dated 29th January, 1971 remains intact.

BELLO, J.S.C.: The dispute giving rise to this appeal has a chequered and protracted history. It began in 1967 when the Ogbomosho Community instituted suit No.I/23/1967 in the High Court of Western Nigeria holden at Ibadan, claiming against the Alafin of Oyo and the Oyo Community as follows:

“i. The plaintiff’s claim against the defendant 1. Declaration that the boundary between the lands of the Ogbomosho Community and the lands of the Oyo Community is the Ipeba Stream, and not the Oba Stream, (a detailed plan of which will be filed later).

ii. An injunction restraining the defendant from exercising any right of overlordships over the area between the Ipeba Stream and the Oba Stream, property of the Ogbomosho Community (a plan of which area will be filed later).”

While the above suit was pending in the High Court, the Governor of Western Nigeria in exercise of the powers conferred by section 4 of the Local Government and Community Boundaries Settlement Law, Cap 69, Laws of the Western Region of Nigeria, 1959 (herein after referred to as the Law) which provides:

“4. The Governor in Council may by order refer to a Commissioner for determination the boundaries or any part of the boundaries between the area of two or more local Government councils or communities”.

referred the dispute for determination by the Boundary Settlement Commissioner (hereinafter referred to as the Commissioner). The reference was contained in order 2 of the Local Government and Community Boundaries (Determination) Order, 1969 which reads:

“2. The boundaries or any parts of the boundaries, as the case may be, described in the first column of the Schedule hereto and in respect of which there is subsisting any dispute between any local government councils or communities in the area or areas of authority of the local government council or councils specified opposite thereto respectively in the second column of the Schedule, are hereby referred for determination by the Boundary Settlement Commissioner.”

Oyo and Ogbomosho, inter alia, were described in the first column of the Schedule.

The Commissioner conducted a very comprehensive enquiry in the course of which 20 witnesses testified and tendered 44 exhibits for the Oyo community while 13 witnesses gave evidence for the Ogbomosho community and tendered 5 exhibits. The Commissioner inspected the land and the boundaries in dispute in the presence of representatives of both communities and their counsel. After having heard the addresses of counsel, the Commissioner wrote a comprehensive and meticulous Finding which he delivered on 29th January, 1971. He concluded his Finding thus:

“Finally, having disposed of all the points that need be discussed I find that the boundary between Oyo and Ogbomosho Communities is a line beginning from the confluence of Oba River and Ipeba stream and running along the bank 20 of the Ipeba stream in a general north-westerly direction for a distance of approximately 55,000 feet to Ahoro Moleyo. Thence the boundary continues in a general north-easterly direction for a distance of approximately 36,000 feet to a point marked Peg.49 on Plan No. AB 3589. The boundary then proceeds along the Biro – Ahoro Dada Oniya – Gboguro road for a distance of approximately 47,500 feet to a point on Onimo stream where the said stream crosses the said road. The boundary then runs along the bank of the Onimo stream to its confluence with the Owe River and then continues in a general north-easterly direction along the Owe River passing through Olohunhun stream, Oloku stream and Gbogun stream to a point at the confluence of Owe River and Ipatin stream at a distance of approximately 75,500 feet. From this point the boundary runs along the bank of the Ipatin stream to Apata Ojerinko and in a general north-westerly direction passing through Iwo Rock and Janpenta Rock and then along the Idie stream to Idie Rock and then to Apata Alaru for a distance of approximately 66,500 feet. The boundary then continues 35 in a general westerly direction along the bank of the Onikansan stream to the confluence of Onikansan and Erubu streams for a distance of approximately 13,200 feet. From the confluence the boundary runs in a general north-easterly direction along Erubu stream to its confluence with Epete stream. Finally the boundary runs in an approximately north direction for a distance of about 18,000 feet to the boundary with Igbeti. The boundary above described is particularly described and delineated on Plan No. OGB.C.70/0 – OY.C.1 and thereon edged Yellow. All land to the East of this boundary line is hereby declared to belong to the Ogbomosho Community and all land to the West of the line is declared to belong to Oyo Community. (Italics mine).

It is to be clearly understood that this decision is without prejudice to the areas of jurisdiction of the Oyo Southern District Council and Ogbomosho District Council as defined in their Instruments nor to any other administrative delimitation heretofore or hereafter to be made by the Government. It is, however, hoped that the Authorities concerned will take note of the finding as to the boundary between the two Communities and take action, as may be deemed desirable, to avoid the unpleasantness of spliting a Community between two administrative Divisions or Councils.”

Pursuant to an order nisi granted by the Chief Justice of Western Nigeria on 26th April, 1971 the Oyo community applied in the High Court of Western State, holden at Ibadan, for an order of certiorari to remove into the said High Court for the purpose of being quashed the finding of the Commissioner. In a reserved judgment, Johnson J. dismissed the application. Thereafter the Oyo Community appealed against the decision of the Commissioner to the Appeal Tribunal established under section 10 of the Law in these terms:

“10 (1) For the purpose of hearing and determining appeals under this Law there shall be an appeal tribunal which shall consist of the Chief Justice and two other judges of the High Court.

(2) An appeal shall lie at the instance of any council, community or other person affected to the appeal tribunal against the finding of a Commissioner relating to the boundary or any part of the boundary determined or any rights or interests in or over land of such council, community or person.”

The Appeal Tribunal dismissed the appeal on 12th September 1973 and affirmed the decision of the Commissioner.

In parenthesis, it may be noted that as a result of the reference above stated the Ogbomosho community did not proceed with their suit No. 1/23/67 and the suit appeared to have lapsed.

It was in consequence of the foregoing, that the Alafin of Oyo and the Oyo Community (the present appellants) instituted suit No. HOY/39/73 in the High Court of Western Nigeria, holden at Oyo against the Attorney-General Western State, Ogbomosho Local Government Council and the Ogbomosho Community (the respondents herein) claiming:

“(i) a declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare (the Commissioner) and dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice;

(ii) an order setting aside the said decision;

(iii) an injunction restraining the 1st defendant and all agents, officers and other servants of the 1st defendants from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs.” (Bracket mine)

The main contentions upon which the parties joined issue at the trial of the suit are contained in paragraphs 9 and 10 of the statement of claim wherein it was averred:

“9. The plaintiffs will contend at the trial of this action that the Boundary Commissioner has no jurisdiction to enter into the enquiry aforesaid or to make any finding or determination as aforesaid for the following among other reasons:-

(i) The Order published as WSLN. 114 of 1969 does not indicate clearly or at all the matter which was referred to the Commissioner.

(ii) If what was referred to the Commissioner for determination was the boundary between Oyo Southern District Council on the one hand and Ogbomosho District Council on the other, then he would have had no power to make any determination because there was no dispute in existence as to such boundary.

(iii) If what was referred or purported to have been referred to the Commissioner was the boundary between the land owned by the Oyo Community on the one hand and the land owned by the Ogbomosho Community on the other, then he would have had no power to make any determination because it is apparent from his own findings that whilst a number of individual families in Ogbomosho lay claim to pieces of land in Oyo Division there was no allegation that Ogbomosho Community as such lay claim to any such land.

(iv) (a) The Local Government and Communities Boundary Settlement Law (Hereinafter referred to as ”the Law”) does not give the Commissioner jurisdiction to determine any question relating to the ownership of land or interest in land.

(b) Alternatively, if the Law gives him any jurisdiction to determine such question then the Law is unconstitutional and void to the extent that it does so.

Particulars of Invalidity of the Law

(i) The tribunal presided over by the Commissioner is not the type of tribunal contemplated by section 22 of the Constitution of the Federation and accordingly it is not capable of determining any question as to the ownership of property.

(ii) The Law (sections 5 and 14) envisages that a determination by the Commissioner shall confer a right in rem capable of overriding any previous decision of a court of law without ensuring a right of hearing to all persons that may be affected thereby contravening section 22 of the Constitution of the Federation.

(iii) The provisions of sections 5 and 14 of the Law are unconstitutional and void for inconsistency with section 22 of the Constitution of the Federation.

(iv) Enforcement of the determination of the tribunal would be a contravention of the provisions of section 31 of the Constitution of the Federation.

(v) By the laws in force in the Western State only the High Court of Justice and appropriate courts of law set up under the Customary Courts Law have jurisdiction to determine questions of title of land.

  1. Objection was taken to the jurisdiction of the Boundary Commissioner in the proceedings before the said Boundary Commissioner as well as on appeal to the Appeal Tribunal set up under the Local Government Boundary Settlement Law but the said objection was overruled and the appeal to the Appeal Tribunal was dismissed.”

Pursuant to an order of transfer made by the Chief Justice of Western State, the suit was heard in the High Court at Ibadan. In a reserved and well considered judgment Agbaje J. dealt with all the issues raised in paragraph 9 of the statement of claim. He held that the Commissioner was right in holding that the enquiry was concerned with the determination of boundary between Oyo and Ogbomosho Communities in Oyo Southern District Council and the Ogbomosho District Council respectively; that having regard to the provisions of section 5 of the law, the Law did give the Commissioner power to determine question relating to the ownership of land or interest in land in any dispute between two communities as to their boundaries but that the tribunal constituted by the Commissioner not being a court, the Law in so far as it gives the Commissioner such power to determine the said question is unconstitutional and void to that extent on the ground of the principle of separation of powers implied in our 1963 Constitution as per Lakanmi & Anor. v A-G (West) & Ors. 1971 1 U.I.L.R. 201 and Hinds v. The Queen (1976) 1 All E.R. 353. The learned judge accordingly granted the declaration sought, set aside the judgment of the Appeal Tribunal and the decision of the Commissioner. He granted the injunction restraining the Attorney-General, his agents, officers and servants from giving effect to the said judgment and decision.

The Attorney-General and the Ogbomosho Community were not satisfied with the decision of Agbaje J. and so they appealed against it to the Court of Appeal which in a split decision of two to one allowed the appeal, set aside the judgment of Agbaje, J. and entered a judgment of dismissal of the claims of the Oyo Community.

I think, it is pertinent to summarise the different reasons for the judgments of the learned Justices of the Court of Appeal on the main issues canvassed before them. Akanbi, J.CA after having held that the Commissioner was not a court within the scope of the 1963 Constitution, continued:

“The first question I ask myself is whether the Constitution of the Federation 1963 confers on a tribunal such as the one set up under Local Government Boundaries Settlement Law Cap. 69 as amended, the power to determine matters involving the civil rights and obligations of persons who are ordinarily subject to the jurisdiction of the Courts of the land To answer that question it is necessary to quote section 22(1) of the Constitution. It reads:

‘In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.” (Note: Italics mine).

It appears to me that the language of section 22(1) is plain enough as to lead to the conclusion that apart from the “courts” of the land, tribunals properly constituted, that is whose independence and impartiality are guaranteed in the manner they are brought into being, can lawfully and legitimately adjudicate upon and decide issues involving the civil rights and obligations of the person or persons concerned in its proceedings.”

Consequently, the learned Justice concluded that the trial judge had erred in law in having relied on the doctrine of separation of powers to hold that all justiciable issues must be tried by courts and not by any tribunal.

In his judgment, Omo, J.C.A was of the view that the Boundary Commission was a subordinate court within the purview of the 1963 Constitutions and as such was competent to determine the boundaries including ownership of and interest in land between communities. However, being a subordinate court, he held that an appeal against its decision should lie to the High Court by virtue of section 51 of the Constitution of Western Nigeria, 1963 and, that being the case, sections 5, 10, 11, 12 and 14(1) which purported to restrict an appeal against the decision of the Commissioner to the Appeal Tribunal were unconstitutional and void. Relying on Lymburn v. Mayland (1932) AC. 318; Toronto Corporation v. York Corporation (1938) AC. 415 and A-G. of Alberta v. A-G. of Canada (1947) AC. 503, the learned Justice applied the principle of severability of avoided provisions of a statute and affirmed the decision of the Commissioner.

Dosunmu, J.CA dissenting, relied on the doctrine of separation of powers as predicated in Lakanmi v. A-G. West (Supra) and Hinds v. The Queen (Supra) and upheld the decision of the trial judge that only courts were constitutionally empowered to determine disputes relating to ownership and interest in land between ADEYEMI (ALAFIN OF OYO) & ORS. V. A-G. OYO STATE & ORS. 415 individuals and communities; that the Edict NO.5 of 1968 which purported to confer such jurisdiction on the Commissioner was unconstitutional and void and consequently the Commissioner was incompetent to determine the dispute between the Oyo and Ogbomosho Communities. The learned Justice dismissed the appeal and affirmed the decision of Agbaje J.

The Oyo Community were not satisfied with the majority decision of the Court of Appeal and appealed to this Court on the following grounds:

“1. The decision of the majority of the Federal Court of Appeal (Akanbi, J.C.A. and Uche Omo, J.C.A.) to the effect that the Boundary Commissioner was competent to try the boundary dispute between Oyo and Ogbomosho Communities was wrong in law.

Particulars of Error

(a) Under the 1963 Constitution the judicial powers of the State were vested in the courts of law;

(b) The boundary dispute between Oyo and Ogbomosho Communities was a matter for determination by the exercise of the Judicial powers of the State;

(c) The tribunal over which the Boundary Commissioner presided not being a court of law could not validly exercise the judicial powers of the State;

(d) Accordingly, it was not competent for the Boundary Commissioner to determine the aforesaid dispute;

(e) Even if (which is not conceded) the tribunal over which the Boundary Commissioner presided was a court of law the invalidity of the appeal provisions of the Law cannot be severed from the part of the law which set up the Commission;

(f) Accordingly the part of the Law which set up the Commission was also void.

  1. The majority of the Federal Court of Appeal erred in law in considering that the provisions of section 22 of the 1963 Constitution were relevant to the issues before them in the appeal and that the said provisions justified their conclusion that the tribunal over which the Boundary Commissioner presided was a properly constituted tribunal though not a court of law (per Akanbi J.C.A.) or was a properly constituted court of law (per Uche Omo J.C.A.).

Further Particulars of Error

Section 22 of the 1963 Constitution does not confer judicial powers on a body which is not part of the courts of judicature but only lays down standards to be observed by courts of law and other tribunals.”

It is appropriate to identify the particular provisions of the Law the validity of which has been under challenge. It may be noted that the validity of the Law as was originally enacted in 1956, which was concerned with the determination of boundaries of areas of the Local Government Councils, has never been in question. The issue was confined to the validity of the amendment of the Law by the Local Government Boundaries Settlement (Amendment) Edict NO.5 of 1968 which conferred jurisdiction on the Boundary Commissioner to determine boundary disputes between communities. It appears, as Chief Williams contended, the Law was originally intended to determine administrative boundaries only but was amended in 1968 to include determination of boundaries between communities.

The two main issues upon which the appeal was canvassed in this Court are:

(1) whether the Boundary Commissioner and the Appeal Tribunal were courts of law and

(2) whether a tribunal which was not a court of law could try justiciable issues, such as a land dispute

It seems to me there is no disagreement between learned counsel in respect of the answer to the first question. Both counsel contended that the Commissioner and the Appeal Tribunal were not courts of law within the con of the Constitution of Western Nigeria, 1963 and section 126 of the Constitution of the Federation (herein referred to as the 1963 Constitutions). I entirely agree that the Commissioner was not a court of law.

There is no doubt that neither the Boundary Commission nor the Appeal Tribunal, though both were essentially judicial tribunals and must act judicially in discharging their functions, was intended to be a court within the judicial system in Western Nigeria at the material time. Both lacked the characteristics of courts of law. While suitors wishing to have their disputes adjudicated by a court have the right to invoke its jurisdiction, they have no such right in respect of the Boundary Commission whose jurisdiction can only be invoked by the Governor in Council.

The finality and conclusiveness under the Law of an appeal against the decision of the Commission to the Appeal Tribunal did not conform with the chain of appeals within the hierarchy of the courts as provided by section 51 of the Constitution of Western Nigeria and section 117 of the Constitution of the Federation, 1963. The fact that the main function of the Commissioner was essentially administrative was further evidenced by the manner for the enforcement of his decision. Under section 14(3) of the Law the decision of the Commissioner should not have effect 25 until notice was given by the Governor in Council in the Gazette. I hold that the Boundary Commissioner was an administrative tribunal.

In his submission on question (2), Chief Williams strenuously argued that it was legitimate to imply the incorporation of the basic principle of separation of governmental powers in the 1963 Constitutions and on that account it was unconstitutional to invest the tribunal which was not a court of law with the judicial power to decide justiciable issues such as the land dispute between the Oyo and Ogbomosho Communities. Upon the authorities of Uyanage v. The Queen (1967) 1 A.C. 259 at 287 – 288, Lakanmi v. A-G. West (supra) at 218 and Hinds v. The Queen (supra) at 212, I am inclined to accept the submission of Chief Williams that the 35 basic principle of separation of powers applied to the 1963 Constitution and that it might be taken for granted that the legislative power of Western Nigeria was vested in the Legislature, the executive powers in the Executive and the judicial powers in the Courts; See Chapters II (read with section 69(5) of the Constitution of the Federation), III and IV of the Constitution of Western of Nigeria respectively. Superficially, since the determination of a dispute over ownership or interest in land between two communities is a justiciable matter which is within the jurisdiction of the courts, it would be contrary to the principle of separation of powers to invest a tribunal which is not a court of law with jurisdiction to make such determination. Prima facie it might appear therefore that it was unconstitutional to vest on the Commissioner the power to determine the land dispute between the Oyo and Ogbomosho Communities.

However, it must always be appreciated that where there are express or implied provisions in the Constitution which negative the application of the principle of separation of powers then the principle would have to give way to the express or implied provisions: see A-G. of Bendel State v. A-G of the Federation & Ors. (1983) 6 S.C. 8. In Lakanmi’s case at 218, this Court also appreciated the limitation of the application of the principle where there are express or implied provisions in the Constitution when it stated:

“In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary” (Italics mine).

The majority of the Court of Appeal were of the view that section 22 of the Constitution of the Federation expressly authorised a tribunal established by law to decide justiciable issues. Chief Williams preferred the dissenting opinion of Dosunmu, J.CA and argued that the section did not confer any adjudicative powers on any court or tribunal but that it only prescribed constitutional requirements for a fair hearing within a reasonable time by a court or other tribunal whenever established by the law of the Federation or of the States. Replying, Dr. Ajayi urged us to endorse the view of the majority of the Court of Appeal that the Constitution empowered a court or a tribunal to determine the civil rights of a person or community provided the Law that established the court or the tribunal ensured a fair hearing within a reasonable time and in such a manner as to secure its independence and impartiality. Referring to Adegbenro v. Akintola (1963) A.C. 614 at 631, learned counsel contended that express provision overrides imported provision. I think for the proper appraisal of section 22 it is pertinent to set out its relevant provisions:

“22 (1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:

25 Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine –

(a) questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person; or

(b) chieftaincy questions.

(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.

(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public:

Provided that –

(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto in the interests of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of twenty-one years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice; and

(b) if in any proceedings before a court or such a tribunal a Minister of the Government of the Federation or a Minister of the Government of a Region certifies that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.

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

(d) to examine in person or by his legal representatives the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution.

(6) When any person is tried for any criminal offence, the court shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the record within a reasonable time upon payment of such fee as may be prescribed by law.

(8) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court; and no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.” (Italics mine).

Upon a careful perusal of the foregoing provisions of section 22, it seems to me that it is reasonable to construe the section as not only having permitted the Legislature of the Federation or of a Region to establish by law a court or other tribunal for the determination of the civil rights and obligations of a person but also the establishment of such court or, in the alternative, such tribunal was mandatory having regard to the right guaranteed to a person therein to have his civil rights and obligations determined by no other authority than a court or a tribunal. The fact that the provisions of the section relating to the trial of criminal offences “by a court” made no mention of “a tribunal” reinforces the view that while the Constitution permitted both court and tribunal to determine justiciable issues in civil matters, it is only a court of law that was permitted to deal with and try criminal offences. Another important limitation in the application of the principle of separation of powers to the 1963 Constitution is the fact that the High Court of Western Nigeria was not endowed by the Constitution with general original jurisdiction. Its original constitutional jurisdiction was very narrow and was limited to the determination of any question whether any person had been validly selected or elected as a member of a Legislative House of the Region or the seat in a Legislative House of any member of that House had become vacant: section 16 of the Constitution of Western Nigeria. Its general original jurisdiction to determine justiciable matters including land disputes was statutory: see sections 8, 9 and 10 of the High Court Law, Cap. 44, Laws of the Western. Region of Nigeria, 1959. With regard to the other two constitutional courts operating within Western Nigeria at the material time, the Court of Appeal for Western Nigeria had no original jurisdiction at all while the original jurisdiction of the Supreme Court was confined to disputes between the Federation and a Region or between Regions: section 114 of the Constitution of the Federation. It is clear from the foregoing that none of the constitutional courts operating within Western Nigeria was vested by the 1963 Constitutions with original jurisdiction to hear and determine any land dispute between communities. It was left to the Legislature of Western Nigeria to confer such jurisdiction. Having regard to the permissive provisions of section 22, I am of the view that it was not against the spirit and intendment of the 1963 Constitutions for the Legislature to establish by law a tribunal and to invest the tribunal with judicial powers in the manner that had been done for the Boundary Commission.

Finally, I think it is relevant to the issue to take notice of the fact that the suit, the subject matter of this appeal, was instituted during the first Military Regime. Upon the advent of that Regime in 1966, the provisions of the 1963 Constitutions relating to the Legislatures and Executives of the Federation and the Regions were suspended by sections 1 and 2 of the Constitution (Suspension and Modification) Decree 1966. Under the provisions of sections 3 and 7 of the Decree the Legislative and executive powers of Western Nigeria became vested in the Military Governor of the Region and the principle of separation of powers in so far as it concerned the Legislature and the Executive was laid to rest. Although those violent constitutional changes did not substantially affect the independence of the courts, nevertheless the decisive reaction of the Military Regime to the decision of the Supreme Court in Lakanmi’s case which the Regime nullified by the immediate enactment of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 was indicative of the apparent inapplicability of the classical doctrine of separation of powers to a Military Constitution such as we had at the material time. The facts in Lakanmi’s case may be summarised: The Military Government enacted an Edict which amounted to a legislative judgment depriving Lakanmi of his property. The Supreme Court invalidated the Edict on the ground of the principle of separation of powers implied in the 1963 Constitution to the effect that the Legislature had no power to enact such an Edict as the matter was concerned with the exercise of judicial powers which was within the jurisdiction of the courts. Section 1 nullified the decision in these terms:

“any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.”

It now remains to consider the validity of sections 11 (5) and 14 (1) of the Law. The subsections read:

“11 (5) No appeal shall lie from the decision of the appeal tribunal.

14 (1) Subject to the provisions of section 15, the determination of a local government or community boundary, or any rights or interests in or over land of which notice is given in accordance with section 13, shall notwithstanding any contained in any instrument or judgment, be final and conclusive as to that local government or those rights or interests in or over land and shall not be open to question in any court.”

(Italics mine).

It was contended that the two subsections were unconstitutional because they deprived an aggrieved person of the right to have access to the courts either by way of appeal or otherwise. Section 14(1) was said to be worse as it appeared to have 50 enabled the Boundary Commissioner to reverse the judgment of a court of law including the Supreme Court.

It must be appreciated that the jurisdiction of appellate courts in our judicial system is either constitutional or statutory.The appellate powers are conferred upon the courts by the Constitution and the Federal and States legislations. No court has any inherent appellate jurisdiction. It follows therefore that unless jurisdiction is specifically conferred by the Constitution or legislation, an appeal court will not entertain a particular appeal.

Now, the appellate jurisdiction conferred by section 51 of the Constitution of Western Nigeria on the High Court was confined to appeals from the decisions of a subordinate court and in respect of the Western State Court of Appeal under section 53 thereof to appeals from the decisions of the High Court only. In so far as the Western State was concerned, the jurisdiction of the Supreme Court to hear and determine appeals under section 117 of the Constitution of the Federation, 1963 was limited to appeals from the Court of Appeal for Western State. I have already held that the Boundary Commission and the Appeal Tribunal were not subordinate courts. Consequently, there was no constitutional right of appeal or appeal by leave from the decision of the Boundary Commission or the Appeal Tribunal to any court. That being the case, the appellants cannot complain that the two subsections deprived them of any constitutional right of appeal or appeal by leave. Under the circumstances I see nothing unconstitutional or wrong in the Law including the two subsections complained of which made the decision of the Commissioner or the Appeal Tribunal final and conclusive and there was no further appeal to any superior court. In the absence of any provision to the contrary in the 1963 Constitutions and any Decree, a statutory provision excluding appeal from a determination of a statutory tribunal is legitimate and valid: see Anisminic Ltd. v. Foreign Compensation Commission (1969) A.C. 147 and In re A Company (1981) A.C. 374.

I think, it is germane to the issue to point out that on the authority of Anisminic’s case, which Lord Diplock described as “a legal landmark” in the development of administrative law in England on the foundation of the concept of ultra vires in In re A Company at page 382, despite the provisions of sections 11(5) and 14(1) of the Law judicial review might be invoked as a means of correcting any mistake of law by the Boundary Commission or the Appeal Tribunal. Neither subsection was a bar to the jurisdiction of the High Court for review.

In Anisminic’s case, the House of Lords considered the effect of a statutory provision excluding appeal from a determination of a statutory tribunal. The Foreign Commission Act 1950, defined the jurisdiction of the tribunal and provided by section 4(4) that “The determination of the Commission of any application made to them under this Act shall not be called in question in any court of law.” The House held that the subsection did not oust the supervisory jurisdiction of the court, whose duty remained to ensure that the limits set by the statute to the area designated for the Commission’s determination were observed. I hold both subsections valid to the extent of their excluding appeal to any court.

Finally, I consider the argument concerning the validity or otherwise of section 14(1) to the extent that it had the effect of enabling the Commissioner to reverse any judgment as being academic and hypothetical. The Commissioner did not reverse any judgment. I would reserve my opinion on this aspect of the matter until a proper case directly raising the issue is presented before us.

Having regard to the foregoing, I consider the question relating to severability of either subsection to be a non-issue. The question was based on the assumption that either subsection was or both were null and void.

For these reasons, I would dismiss the appeal and it is hereby dismissed. The decision of the Court of Appeal restoring the determination of the Commissioner is affirmed. N300 costs to the respondents.

OBASEKI, J.S.C.: By Western State Legal Notice No. 114 of 1969, dated the 28th day of November, 1969, the Executive Council of the then Western State of Nigeria (comprising the present Ogun, Oyo and Ondo States) made an order ADEYEMI (ALAFIN OF OYO) & ORS. v. A-G. OYO STATE & ORS. 421 referring, among others, for determination, the boundary dispute between Oyo Southern District Council and Ogbomosho District Council to Mr. M. E. Ogundare, the Boundary Settlement Commissioner, in the following terms:

“The boundaries or any parts of the boundaries as the case may be, described in the first column of the Schedule hereto and in respect of which there is subsisting any dispute between any local government councils or communities in the areas of authority of the local government council or councils specified opposite thereto respectively in the second column of the Schedule, are hereby referred for determination by the Boundary Settlement Commissioner.”

An examination of item 17 of the items in the Schedule shows “Oyo/Oqbomosho” in the first column and “Oyo District Council” Ogbomosho District Council” in the 2nd column.

Mr. M. E. Ogundare conducted the inquiry and delivered his findings and decision in writing on the 29th day of January, 1971. Following an appeal to the Appeal Tribunal, the decision was confirmed or affirmed on the 12th day of September, 1973. As the plaintiffs herein considered the said decision an encroachment on their proprietary rights, they instituted suit No. HOY/39/73 in the Oyo JUdicial Division of the High Court of the then High Court of Justice, Western Nigeria claiming:

(i) a declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice;

(ii) an order setting aside the said decision;

(iii) an injunction restraining the 1st defendant and all agents and other servants of the 1st defendant from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs.”

Pleadings were ordered and delivered and the issues joined came up for trial before Agbaje, J. After hearing evidence and address, the learned trial Judge, in a considered judgment, granted the declaration and the orders sought concluding his judgment in the following terms:

“In Regina v. Longham, The Times April 25, 1972, the Lord CJ. said it was easy to rely on the hallowed phrase that justice must be seen to be done in order to raise complaint over a very wide field, but in order that justice was not seen to be done, it was necessary to point to some factor on which the doing of justice depended and then to show that that factor was not visible to those present in court. In the instant case, I cannot find any factor upon which the doing of justice depended which was not visible in the whole of the proceedings before the Boundary Commissioner. So I hold that the complaint of the plaintiffs that there is a breach of rule of natural justice has not been substantial.

The conclusions I reach in this case for the foregoing reasons are:

(1) that the tribunal presided over by the Boundary Commissioner in so far as it is not a High Court of a State is not competent to adjudicate upon (sic) dispute between communities as to the boundaries between them;

(2) that the tribunal presided over by the Boundary Commissioner can qualify as a subordinate court of the State but the Law or Edict under which it was established to determine boundaries between communities is for the reasons I have given above in this judgment ultra vires the Constitution of the Federation of Nigeria. In the result, I must grant the declaration sought in this case. A declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M.E. Ogundare and dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal and unconstitutional is hereby granted. The said judgment is hereby set aside. The 1st defendant, his agents, officers and servants are hereby restrained from giving effect to the said decision or acting upon it.”

Aggrieved by the decision, the Attorney-General, Oyo State, Ogbomosho Local Government Council and Jimoh Oladunni Oyewunmi (Shoun of Ogbomosho) for himself and on behalf of Ogbomosho Community appealed against the decision to the Federal Court of Appeal.

The appeal was heard by the Federal Court of Appeal (Akanbi, Uche Omo and Dosunmu, JJ.CA). The appeal was allowed but not by a unanimous decision. Akanbi and Uche Omo, JJ.CA allowed the appeal while Dosunmu, J.CA dismissed it. Although Akanbi and Uche Omo, JJ.CA allowed the appeal, their reasons were not the same as their judgments show. Akanbi, J.CA in his lead judgment commented, observed and concluded as follows:

“The first question I ask myself is whether the Constitution of the Federation 1963 confers on a tribunal such as the one set up under the Local Government Boundaries Settlement Law Cap 69 amended, the power to determine matters involving civil rights and obligations of persons who are ordinarily subject to the jurisdiction of the courts of the land To answer this question, it is necessary to quote section 22(1) of the Constitution. It reads:

‘In the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.’

It appears to me that the language of section 22(1) is plain enough as to lead to the conclusion that apart from the “courts” of the land, tribunals properly constituted, that is whose independence and impartiality are guaranteed in the manner they are brought into being, can lawfully and legitimately adjudicate upon and decide issues involving civil rights and obligations of the person or persons concerned in its proceedings. It is beyond question that tribunals like regular courts must ensure that parties are given a fair hearing within a reasonable time.

It has also been canvassed that the doctrine of separation of powers precludes a tribunal from making a determination in any matter that affects the civil rights and obligations of the parties to the dispute (in this case a boundary dispute). It is my considered view that there is nothing offensive introduced by Edict NO.5 of 1968 into the principal law which was not there before the amendment. I therefore agree with Dr. Ajayi that any demarcation of boundaries between one local government council and another would naturally affect the civil rights of the persons inhabiting the area in dispute and would in one way or the other give rise to some legal consequences.

Consequently, I do not think that the amendment which further conferred powers on the Commissioner to determine boundaries between two communities (as distinct from local government councils) did produce any legal consequence which but for the amendment would not have been the case… I now revert to ADEYEMI (ALAFIN OF OYO) & ORS. V. A-G. OYO STATE & ORS. 423 the doctrine of separation of powers Therefore to my mind, it would be wrong to say that the application of the doctrine of separation of powers can operate so as to preclude a tribunal from performing a lawful duty or from making a determination in respect of a boundary dispute of which it became seised by operation of law, simply because such adjudication will affect the civil rights of the parties to the dispute.

Consequently, with the utmost respect, I find myself unable to agree with the views of the learned trial judge that only those courts which are within the hierarchy of our courts’ system can try and make pronouncement on justiciable is sues.

There is however hardly any doubt that the courts in this country and especially in the United Kingdom have always arrogated to themselves the power to exercise supervisory control (as distinct from appellate jurisdiction) over the conduct of cases by such tribunals. Such controls have been exercised to quash the decisions of tribunals where it was established that there has been a breach of the rules of natural justice, or where a tribunal has acted in excess of or without jurisdiction or has asked the wrong question or applied the wrong test or unless where the law creating it does not permit, to correct an error of law which is manifested on the face of the record. (See Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 14). In the instant case, none of these things happened and the learned trial judge did not base his decision on any of them. Besides, I find no evidence of the breach of any specific provision of the Constitution.

On the contrary, the finding of the learned trial Judge was that there was no breach of the rules of natural justice.

Finally, I have already found that the reliance placed on the doctrine of separation of powers which led him on into concluding that all justiciable issues must be tried by the ‘courts’ and courts alone was wrong and since those were the premises on which he based his final decision, I cannot but come to the conclusion that this appeal, in the final analysis, must be and is hereby allowed.”

Uche Omo, J.CA, after considering the issue of the doctrine of separation of powers on the competence of the Boundary Commissioner the question of whether the tribunal is a subordinate court or not and the question of severability of some of the unconstitutional provisions of the Local Government and Community Boundaries Settlement Law Cap 69 in his judgment, commented and held as follows:

“In the instant case, it is only sections 10, 11, 12 and 14(1) of the Law which deal with appeals from the decision of the Boundary Commissioner and the finality of the Appeal Tribunal’s decisions. All the other sections deal inter-alia with the appointment of the Commissioner, his duties, his powers and the modus operandi of the Commissioner in the exercise of his powers. I fail to see how these other sections can be said to be inextricably bound to the provisions for appeal etc. as to be inseverable. The contrary is obviously the case. I am therefore satisfied, and so hold, based on the premises of the conclusion of the learned judge, that he erred in holding that the whole law is invalid on the ground of unconstitutionality. Sections 10, 11, 12 and 14(1) and any other sections offending the right of appeal provided by the Constitution are clearly severable from the rest of the law. What remains is enough to uphold the decisions of the Boundary Commissioner itself which is hereby upheld. I agree with the learned Judge that the Boundary Commissioner (and for that matter, the Appeal Tribunal is a subordinate court. I however have held that its determination is saved by the doctrine of severability. There is no doubt whatsoever that the doctrine of separation of powers is part of our law…It does not operate in every case where a legislature provides that there shall be no right of appeal to make such law unconstitutional. I agree with the view that the courts are the proper forum for the trial of all justiciable issues whether it is between citizens, other individuals or indeed all legal persons whether animate or inanimate (e.g. companies, local councils or corporations).

In its judgment, the court below appears to have conceded that the Boundary Commissioner is a subordinate court. As a court provided for under the Constitution, it can try justiciable issues such issues, in fact, as the law setting it up empowers it to try The Local Government Boundaries Settlement Law as amended by Edict. No. 5 of 1968 gives it such powers Section 22 of the 1963 Constitution is also authority for the proposition that the Constitution does not preclude tribunals from determining the civil rights and obligations of an individual. I therefore hold that Boundary Commissioner is a court qualified to determine the boundaries between communities and that its action in this particular case is intra vires and constitutional. It also follows that the distinction drawn between the Act (sic) of 1956 and Edict 5 of 1968 is not proper. Both pieces of legislation are intra vires the Constitution. Having regard to my findings so far, I am of the view that this appeal should succeed and I so hold.”

Dosunmu, J.CA dissented and dismissed the appeal. He held that the doctrine of separation of powers is implicit in the 1963 Constitution of the Federation No. 20 of 1963, that the Boundary Commissioner is a subordinate court but that if the appellate or finality provisions are severed. the remaining part of the law, i.e. Local Government and Community Boundaries Settlement Law Cap 69 including the part of it that transgresses the principle of separation of powers cannot survive.

The plaintiffs were not satisfied with the majority decision. They felt aggrieved and lodged their appeal against the decision to this Court. The two grounds of appeal argued before us are:

(1) The decision of the majority of the Federal Court of Appeal (Akanbi, J.CA and Uche Omo, J.CA) to the effect that the Boundary Commissioner was competent to try the boundary dispute between Oyo and Ogbomosho Communities was wrong in law.

Particulars of Error

(a) Under the 1963 Constitution, the judicial powers of the States were vested in the courts of law;

(b) The boundary dispute between Oyo and Ogbomosho communities was a matter for determination by exercise of the judicial powers of the State;

(c) The tribunal over which the Boundary Commissioner presided not being a court of law could not validly exercise judicial powers of the State;

(d) Accordingly, it was not competent for the Boundary Commissioner to determine the aforesaid dispute;

(e) Even if (which it not conceded) the tribunal over which the Boundary Commissioner presided was a court of law, the invalidity of the appeal provisions of the Law cannot be severed from the part of the Law which set up the Commission;

(f) Accordingly, the part of the Law which set up the Commission is also void.

(2) The majority of the Federal Court of Appeal erred in law in considering that the provisions of section 22 were relevant to the issues before them in the appeal and that the said provisions justified their conclusion that the tribunal over which the Boundary Commissioner presided was properly constituted though not a court of law (per Akanbi, J.C.A.) or was a properly constituted court of law (per Uche Omo, J.C.A.)

Particulars of Error

Section 22 of the 1963 Constitution does not confer judicial powers on a body which is not part of the courts of judicature but only lays down standards to be observed by courts of law and other tribunals.”

The questions for determination in this appeal were succinctly stated in the brief of the appellants as follows:

See also  Samuel Odeniji & Anor V. Salawu Akinpelu & Ors (1998) LLJR-SC

“(1) whether the tribunal over which the Boundary Settlement Commissioner presided was a court of law

(2) if the answer to question (1) is in the negative whether the said Commissioner is competent to determine the boundary dispute between Oyo and Ogbomosho communities

(3) if the answer to question (1) is in the affirmative, whether the provision of the law setting up the office and functions of the Boundary Commissioner is valid and constitutional having regard to the undoubted fact that the provisions of the said law relating to appeals from decisions of the Commissioner are plainly unconstitutional and void

(4) whether the provisions of section 22 of the 1963 Constitution are relevant to the issues raised in the judgment, of Agbaje, J. and if so, to what 30 extent.”

Before entering upon a discourse of these questions, a brief reflection on the facts of the case and findings made by the Boundary Commissioner is desirable. The facts of the case are not in dispute and briefly are as follows. By an Order published as Western State Legal Notice (W.S.L.N.) No. 114 of 1969 known as the Local Government and Community Boundaries (Determination) Order 1969 made pursuant to the powers conferred on the Governor in Council by the Local Government and Community Boundaries Settlement Law Cap 69, the Executive Council of the former Western State of Nigeria referred the determination of a number of boundaries to a Boundary Settlement Commissioner appointed under the provisions of the said Law. Included among the number of boundaries described in the Schedule of the Order is Oyo/Ogbomosho boundary numbered item 17. The Boundary Commissioner and the High Court, Agbaje, J. interpreted the content of item 17 as a reference to him for the determination of the boundary between Oyo and Ogbomosho communities in Oyo Southern District Council and Ogbomosho District Council respectively. The parties to this appeal did not contest the correctness of this interpretation by the learned trial judge, Agbaje, J. before the Federal Court of Appeal and it is not disputed by the appellants in this appeal. It is however instructive to set out the provision of the Order in extenso. It reads:

“W.S.L.N. 114 of 1969

The Local Government and Community Boundaries Settlement Law (Cap. 69)

The Local Government and Community

Boundaries (Determination) Order 1969

In exercise of the powers conferred by section 4 of the Local Government and Community Boundaries Settlement Law, and by virtue of all other powers enabling in that behalf, the following Order is hereby made by the Executive Council of the Western State of Nigeria.

  1. This Order may be cited as the Local Government and Community Boundaries (Determination) Order 1969
  2. The boundaries or any parts of the boundaries, as the case may be described in the first column of the Schedule hereto and in respect of which there is subsisting any dispute between any local government council or communities in the area of authority of the Local Government Council specified opposite thereto respectively in the second column of Schedule are hereby referred for determination by the Boundary Settlement Commissioner

Schedule

Boundaries Local Government Councils or Communities

Oyo/Ogbomosho Oyo District Council Ogbomosho District Council

Schedule

P. Taiwo Odumosu

Secretary to the Military

Governor”

However, satisfied that there is a dispute as to boundary between the Oyo and Ogbomosho communities, the Boundary Commissioner directed his enquiry towards ascertaining the boundary between the two – the Oyo and Ogbomosho communities. He took evidence from witnesses called at the instance of the Oyo communities on the one hand and from witnesses called at the instance of the Ogbomosho communities on the other hand. He considered the evidence and made his findings determining the boundary in the following words (quoting from exhibit E):

“In using the word ‘community’ I bear in mind the definition of the word as given in section 2 of the Local Government and Community Boundaries Settlement Law. I hold that the Shoun of Ogbomosho exercises traditional jurisdiction over, among others, that group of persons having their origin in towns and villages formerly on the land in dispute. By ‘Oyo Community’ is meant all those persons among others having their origin in Ago Oja and all towns and villages incorporated with Ago Oja by Alafin Atiba and now collectively known as Oyo. I have considered the evidence of the acts of the Oyo Southern District Council within the area in dispute. This to my mind, cannot be considered as evidence of acts of ownership on the part of Oyo Community but rather performance of duties and obligations imposed by the local government law on the Council in whose area of jurisdiction the land in dispute is placed. Finally, having disposed of all the points that need be discussed, I find that the boundary between Oyo and Ogbomosho communities is a line beginning from the confluence of Oba River and Ikpeba stream in a general north-westerly direction for a distance of approximately 55,000 feet to Ahoro Moleyo. Thence the boundary continues in a general north-westerly direction for a distance of approximately 36,000 feet to a point marked Peg. 49 on Plan No. AB. 35889. The boundary then proceeds along the Biro-Ahoro Dada-Oniya-Gboguro road for a distance of approximately 47,500 feet to a point on Onimo stream where the said stream crosses the said road. The boundary then runs along the bank of the Onimo stream to its confluence with the Owe River and then continues in a general north-easterly direction along Owe River passing through Olohunhun stream, Oloku stream and Gbagun stream to a point at the confluence of Owe 5 River and Ipatin stream to Apata Ojerinko and in a general north-westerly direction passing through Iwo Rock and Janpenta Rock and then along the Idie stream to Idie Rock and then to Apata Alaru for a distance of approximately 66,500 feet. The boundary then continues in a general westerly direction along the bank of Onikansan stream to the confluence of Onikansan and Erubu streams for a distance of approximately, 13,200 feet. From the confluence, the boundary runs in a general north easterly direction along Erubu stream to its confluence with Epete stream. Finally, the boundary runs in an approximately north direction for a distance of about 18,000 feet to the boundary with Igbetti. The boundary above described is particularly described and delineated on Plan No. OGB.C.7/0-0Y.C.1 and thereon edged yellow. All land to the east of this boundary line is hereby declared to belong to the Ogbomosho community and all land to the west of the line is declared to belong to Oyo community.

It is to be clearly understood that this decision is without prejudice to the areas of jurisdiction of the Oyo Southern District Council and Ogbomosho District Council as defined in their Instruments nor to any other administrative delimitation heretofore or hereafter to be made by the Government. It is, however, hoped that the authorities concerned will take note of the finding as to the boundary between the two communities and take action, as may be deemed desirable, to avoid the unpleasantness of splitting a community between two administrative divisions or councils.”

However, earlier on, the Boundary Commissioner had made two findings which, in my view, set off the court actions taken by the appellant. The findings read (quoting from exhibit E the Boundary Commissioner’s findings):

“Having found as above, the question now left to be decided is as to what community Oyo or Ogbomosho the land in dispute belongs. I have found above that the land in dispute belongs to the descendants of the original settlers of the former towns and villages in the land in dispute. I have also found that these descendants are now, for all practical purposes, members of the Ogbomosho community. I therefore find that these descendants now belong to Ogbomosho community. I am satisfied, and I so hold, that from the welter of evidence before me the people of Bosunla, Fapote, Fedegbo, Obamo, Aipo, Dada, Yaku, Esenele, Ikoyi and other towns and villages on the land in dispute placed themselves under the protection of the Bale of Ogbomosho at some time during the wars of the 19th century and thereby become subject to him. They have all therefore become part of Ogbomosho community and their land now belongs to Ogbomosho community.”

The historical origin of the inhabitants of towns and villages on the land in dispute was found to differ from that of the original inhabitants of Ogbomosho according to the findings of fact by the Boundary Commissioner which read:

“1. That the area in dispute shown on exhibit A was once occupied by many towns and villages commonly referred to at this enquiry as the AHORO

  1. That at the time these towns and village were in existence, the Alafin was at Oyo lie and held sway over the entire Yoruba land.
  2. That Ikoyi was at this time also at its present site and the Onikoyi was its ruler. 428 NIGERIAN SUPREME COURT CASES [1984] N.S.C.C.
  3. That each of the towns and villages on the land in dispute, except Ikoyi, was being ruled by its own Bale. The Onikoyi was an Oba, superior in rank to any Bale.

10.That there is no scintilla of evidence before me from which I could reasonably hold that the Onikoyi owned or owns any part (except Ikoyi) of the land in dispute.

12.That consequently, I find that title to the land over which each town or village was situate was in the ruler of the place and his subjects whose long possession has never been denied but rather admitted by all sides.

13.That as a result of the Fulani wars which ravaged many areas of Yoruba land during the last century all the towns and villages on the land in dispute were deserted and their rulers and inhabitants fled to Ogbomosho and established various compounds there.”

In the light of these findings, I shall proceed to deal with the questions raised in this appeal.

It appears that the main contention of the appellant is that if the determination of the Boundary Commissioner is valid, it would mean that the action suit 1/23/67 between the two communities which was commenced in 1967 (as evidenced by exhibit A) before the High Court of Western Nigeria, had been over-taken by events. At the hearing in this Court, the Court was informed that that action was subsequently discontinued. The major complaint of the appellant before the High Court is contained in paragraphs 8 and 9 of their statement of claim which read:

“8. In the said finding, the said Boundary Commissioner made a finding in regard to the boundary between Oyo and Ogbomosho Communities and described the same more particularly on Plan No. OGBC/O OY.C.1 and thereon edged yellow. The plaintiffs will rely at the trial on the proceedings and findings of the Commissioner and on the plan aforesaid.

  1. The plaintiffs will contend at the trial of this action that the Boundary Commissioner has no jurisdiction to enter into the enquiry aforesaid or make any finding or determination as aforesaid for the following, among other reasons:

(i) The Order published as WSLN.114 of 1969 does not indicate clearly or at all the matter which was referred to the Commissioner 35

(ii) If what was referred to the Commissioner for determination was the boundary between Oyo Southern District Council on the one hand and Ogbomosho District Council on the other, then he would have had no power to make any determination because there was no dispute in existence as to such boundary.

(iii)If what was referred or purported to have been referred to the Commissioner was the boundary between the land owned by the Oyo community on the one hand and the land owned by the Ogbomosho community on the other, then he would have had no power to make any determination because it is apparent from his own findings that whilst a number of individual families in Ogbomosho lay claim to pieces of land in Oyo Division there was no allegation that Ogbomosho community as such lay claim to any such land.

(iv) (a) The Local Government and community Boundaries settlement Law (hereinafter referred to as “the Law”) does not give the Commissioner jurisdiction to determine any question relating to ownership of land or interest in land.

(b) Alternatively, if the Law gives him any jurisdiction to determine such question then the Law is unconstitutional and void to the extent that it does so.”

Particulars of Invalidity of the Law

(i) The tribunal presided over by the Commissioner is not the type of tribunal contemplated by section 22 of the Constitution of the Federation and accordingly it is not capable of determining any question as to the ownership of property.

(ii) The Law (sections 5 and 14) envisages that a determination by the Commissioner shall confer a right in rem capable of overriding any previous decision of a court of law without ensuring a right of hearing to all persons that may be affected thereby contravening section 22 of the Constitution of the Federation.

(iii) The provisions of sections 5 and 14 of the Law are unconstitutional and void for inconsistency with section 22 of the Constitution of the Federation.

(iv) Enforcement of the determination of the tribunal would be a contravention of the provisions of section 31 of the Constitution of the 20 Federation.

(v) By the Laws in force in the Western State, only the High Court of Justice and appropriate courts of law set up under the Customary Courts Law have jurisdiction to determine questions of title to land.”

In support and amplification of his brief at the oral hearing before us, Chief F.R.A Williams, SAN. learned counsel for the appellants submitted:

(1) that the Local Government Boundaries Settlement Law Cap. 69 was designed in its original form solely for the purpose of adjusting boundaries 30 between Local Government Councils where the need arises.

(2) that he has no complaints against the Law in its original unamended form. It sets up an innocuous administrative tribunal;

(3) that the land which the Boundary Commissioner has now awarded to the Ogbomosho Community is within the Oyo Southern District Council;

(4) that Edict No.5 of 1968 promulgated by the Military Governor of Western State introduced a number of amendments to the original Law and gave jurisdiction to the Boundary Commissioner to determine land suits concurrently with the High Court;

(5) that the declaration which the Ogbomosho community were seeking in the High Court action was the dispute referred to the Boundary Commissioner;

(6) that the two major issues that arise for determination are:

(a) whether the Boundary Commissioner and the Appeal Tribunal are courts of law;

(b) whether the tribunal which is not a court of law can try justiciable issues;

(7) that there is a vesting of judicial powers in the courts of law in this country by the 1963 Constitution by implication. He referred to Lakanmi’s case (1971) 1 U.I.L.R. 201 and 218 to 219; Uyanage v. The Queen (1967) A.C. 259 at 287; Hinds v. The Queen (1977) A.C. 195 at 211,212- 213; Decree No. 1 of 1966 sections 1 and 7 and section 11.

(8) that the Federal Military Government by Decree No.1 of 1966 vested in itself legislative and executive powers but left in the judiciary judicial powers.

(9) that courts of law adjudicate on legal rights of parties but administrative tribunals give advisory opinions on policy and future legislation.

(10) that under section 5(1) of the Local Government and Community Boundaries Settlement Law, the Boundary Commissioner is entrusted with making policy decisions which no court of law has a duty to make. It would be a mockery of the Constitution to establish a body for the exercise of non-judicial functions to call that body a court, and vest in it judicial powers. He referred to Attorney-General for Australia v. The Queen (1957) AC. 288 at 313 that the Boundary Commissioner is not a court of law;

(11) that courts of law are tribunals which exercise the judicial powers of the State. He referred to the Attorney- General v. The British Broadcasting Corporation (1981) AC. 303 at 339 and 359. Professor Wade Administrative Law 5th Edition pages 44 to 45; United Engineering Workers Union v. Devanayagan (1958) AC. 356 at 382 and 384.

(12) that prior to 1963, the Boundary Commissioner was part of the Administrative system and not part of the judicature. The body is incompetent to perform judicial functions yet the 1968 Edict No. 5 thrust on it some judicial functions.

He again referred to Attorney General for Australia v. The Queen (1957) AC 299 at 309 – 313 P.C.

(13) that an Edict must not conflict with the Constitution to be valid;

(14) that the provision of section 14(1) conflicts with the provisions of the 1963 Constitution of the Federation and is therefore null and void. He referred to section 120 of the 1963 Constitution which makes the Supreme Court a final court of appeal and bars any appeal from its decision; 25

(15) that any severance destroys the general purpose of the Local Government and Community Boundaries Settlement Law.

Can there be any severance He referred to the American approach and the Australian approach and Ex-parte Whybrow & Co. Vol. II CLR 1 at pp. 34 to 35 and at p. 54 – 55; Balewa v. Doherty (1963) 1 W.L.R. 949 at 960.

Learned counsel proposed the Nigeria test that it is the intention of the legislature to be gathered from the entire legislation that should be borne in mind when considering the application of the doctrine of severance.

(16) That if the void provisions are severed what is left is different from what the legislature intended by the 1968 Edict. In his submissions, Dr. FA Ajayi, with whom Mr. J.O. Jegede (Principal State Counsel, Oyo State) agreed, submitted

(1) that the action instituted by the 2nd and 3rd respondents in the High Court was not transferred to the Boundary Commissioner;

(2) that the jurisdiction of the Boundary Commissioner was not in respect of ownership of land generally in the Western State. The jurisdiction was confined to land forming the subject matter of a boundary dispute either between local government councils or between communities;

(3) that it has no right to grant declaration of title. There must be a boundary dispute referred to the Boundary Commissioner;

(4) that the Boundary Commissioner was normally qualified to be appointed a Judge; ,

(5) that it was not the amending Edict No 5 of 1968 which conferred jurisdiction to determine proprietary interests. The Edict by section 3A prescribes judicial oath to be taken by the Commissioner and section 5(2) requires him to avoid injustice, all in an endeavour to meet the provision of section 22(1) of the 1963 Constitution;

(6) that land tribunals here in Nigeria are not required to administer policies. He referred to the book Tribunals and Enquiries by Vandyk p. 114 1965 Edition. They act in accordance with the law. He referred also to De Smiths Judicial Review of Administrative Actions 4th Edition pp. 19 to 20; Public Lands Acquisition (Miscellaneous Provision) Act 1976 Part IV Decree No. 35 of 1976;

(7) that there is a limit to the doctrine of separation of powers;

(8) that one major issue joined in the High Court is whether or not there has been a breach of the provision of section 22(1) of the 1963 Constitution.

The learned trial judge did not consider the question but dealt only with the proviso to that section;

(9) that in the Western State jurisdiction over land is not conferred by the Constitution. It is conferred on the High Court by the High Court Law Cap 44 L/WN. It is not exclusive in that customary courts are given jurisdiction in land matter by the Customary Courts Law Cap. 31. The jurisdiction is not a creation of the doctrine of separation of powers;

(10) that one cannot use an implied prohibition against an express prohibition – Adegbenro v. Akintola (1963) AC. 614 at 631; Kariapper v. Wijesinha (1968) AC. 71 at 738 PC; Attorney General of Bendel State v. Attorney General of the Federation and 22 Ors. (1981) 10 S.C. 1 at 21 – 22 Fatai- Williams, C.J.N.

(11) that the Boundary Commissioner is not a court but a judicial tribunal. In its determination of a boundary it has to have regard to a variety of things such as evidence of court judgments, conveyance, sale, inheritance and gifts to satisfy himself about. It is not an administrative tribunal;

(12) that the offensive part of section 14(1) of the Local Government and Community Boundaries Settlement Law is severable. That the Boundary Commissioner is an inferior tribunal and its decision cannot override that of the superior courts of law – The Supreme Court and the High Court;

(13) that on section 11(5) of the law, in the case of Chief Ogunniyi v. Aderanola (1973) 12 S.C. 55 the Supreme Court did not disapprove of a similar provision in a Kwara State Edict.

(14) that the court has power to remove unconstitutional provisions of the law: Commissioner of Police v. Olawoyin (1961) 1 All N.L.R. 203;

(15) that the Australian and American Constitutions have not the equivalent of section 22(1) of the 1963 Constitution of the Federation. Cases from those countries based on the peculiar provisions of their Constitutions are of no assistance.

Chief Williams, in reply on the relevance of section 22 of the 1963 Constitution relies on the judgment of Dosunmu, J.CA He submitted that the section only deals with fundamental rights and lays down standards to be fulfilled. He conceded that it does not deal with the powers of the court or deal with justiciable issues.

Turning to the first question for determination in this appeal to wit:

“was the tribunal presided over by the Boundary Settlement Commissioner a court of law”

the short answer must be in the negative and I accept this submission of both Chief F. R. A. Williams, SAN. and Dr. F. A Ajayi that it is not a court of law. In the first place, it was not established as a court of law. Secondly, the duty of the Boundary Commissioner as stated in section 3(1) of the Local Government Boundaries and Communities Settlement Law is:

“to enquire into and determine such boundaries as the Governor-in-Council may by Order made under section 4, refer to him for determination.”

Section 4 of the Law reads:

“The Governor-in-Council may by Order refer to a Commissioner for determination the boundaries or any part of the boundaries between the areas of two or more local government councils or communities.”

Thirdly, the findings of the Boundary Commissioner are not final and conclusive or binding and authoritative until (1) a true copy of the findings, any decision of the appeal tribunal, the description of the boundaries and the cadas-trial survey plan have been filed in the Land Registry; (2) the Governor-in-Council has been notified and (3) the Governor-in-Council has published a notice in the Gazette that the boundaries referred to have been determined and the deposit of the documents aforesaid made. [See section 14(3)]

Fourthly, by section 14(2), it is provided “save as provided in this Law, nothing in any such determination shall affect the rights or interests in or over land of any local government council, community or other person”.

It cannot therefore, in my view, be said that the tribunal has any judicial power of the State vested in it. The enquiry undertaken by the Boundary Commissioner cannot, in my view, be regarded an exercise of judicial power.

Unlike the 1979 Constitution of the Federal Republic of Nigeria sections 4, 5 and 6, the 1963 Constitution of Western Nigeria contained no provision expressly vesting judicial powers in the court. But from the general tenure of the provisions of the Constitutions setting up the governmental structure, it is beyond question that the constitutional provisions were based on the doctrine of separation of powers and the three arms of government, i.e. the executive, the legislature and the judiciary, assigned their specific roles in the government of the Federation of Nigeria in general and Western State in particular. See Victorian Stevedoring and General Contracting Co. Property Ltd. and Meakes v. Dignan 46 C.L.A. 73 at 89 – 91. A Constitution is designed in the main to make provisions for the organs to exercise the sovereign powers of government, i.e. the executive, the legislative and the judicial powers of government. A fair inference from the provisions of the 1963 Constitution of the Federation and the 1963 Constitution of Western Nigeria particularly sections 48 to 52 thereof is that the judicial powers of the State were intended to be conferred on the courts of law (i.e. the Court of Appeal, the High Court and other courts subordinate to the High Court). The High Court and the Court of Appeal were established and declared to be superior courts of record and conferred with all the powers of such a court (see section 48 and section 52). Short of express conferment of judicial powers on them the intention is clear. See – Liyanage v. The Queen (1967) 1 A.C. 259 at 287 – 288 Hinds v. The Queen (1977) A.C. 195 at 212 – 213 Lakanmi & Anor. v. Attorney-General, Western State of Nigeria & Others (1971) 1 U.I.L.R. 201 at 218 – 219

In the case of Liyanage v. The Queen (1967) A.C. 259 Lord Pearce (delivering the judgment of the Privy Council) said at 287

“The Constitution is significantly divided into parts:

‘Part 2 The Governor-General’ ‘Part 3 The Legislature’ ‘Part 4 Delimitation of – Electoral Districts’ ‘Part 5 The Executive’ ‘Part 6 The Judicature’ ‘Part 7

The Public Service’ ‘Part 8 Finance’

And although no express mention is made vesting in the judicature the judicial power which it already had and was wielding in its daily process under the courts ordinance there is provision under Part 6 for the appointment of judges by a Judicial Service Commission which shall not contain a member of either House but shall be composed of the Chief Justice, and a judge and another person who is or shall have been a judge. Any attempt to influence any decision of the Commission is made a criminal offence. There is also provision that judges shall not be removable except by the Governor-General on an address of both Houses.

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They would be inappropriate in a Constitution by which it is intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by the executive or the legislature.”

In Hinds v. The Queen (supra), Lord Diplock at p.212 put the matter very clearly when he said:

“Because of this, a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new Constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus, the Constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. As respects the judicature particularly, if it is intended that the previously existing courts shall continue to function, the Constitution itself may even omit any express provision conferring judicial power upon the judicature. Nevertheless, it is well established as a rule of construction applicable to constitutional instruments under which this governmental struction is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively.” (Italics mine)

Separation of Powers

In the 1963 Constitution of the Federation, the executive authority of the Federation was vested in the President before 1966, 15th January (see section 84) and that of the Western Region vested in the Governor of the Region (see section 32 of the Constitution of Western Nigeria).

The power to make law for the peace, order and good government of Nigeria 45 with respect to any matter included in the Legislative Lists was vested in Parliament (see section 69(1), (2) and (3) and Parliament consisted of the President, a Senate and a House of Representatives (see section 41).

The power to make laws for the peace, order and good government of Western Nigeria was vested in the Legislature of Western Region (section 4 of the Constitution of Western Region) and the Legislature consisted of the Governor, the House of Chiefs and the House of Assembly (section 4).

For the Federation, section 111(1)of the Constitution established the Supreme Court of Nigeria. Subsection 2 of section III stipulates that the Supreme Court shall be a Superior Court of record and save as otherwise provided by Parliament, shall have all the powers of such a court.

In addition to its appellate jurisdiction, original jurisdiction was conferred by section 114(1) on the Supreme Court in respect of any dispute between the Federation and a State or between State and subsection (2) conferred power on the Parliament to confer additional original jurisdiction but not with respect to criminal matters. Section 126 of the 1963 Constitution of the Federation empowered Parliament if it desired to establish courts of law in addition to the Supreme Court.

By section 48(1) of the 1963 Constitution of Western Nigeria a High Court was established for the Region. Subsection 3 of section 48 stipulates that –

“The High Court of the State shall be a superior court of record and, save as otherwise provided by any law in force in the State, shall have all the powers of such a court.”

The question that necessarily arises is: What are the powers of a superior court of record

It is significant to note that the Constitution of the Federation and that of Western Nigeria vested in the Supreme Court and the High Court respectively, the powers of a superior court of record. The powers of a superior court of record necessarily include judicial powers and jurisdiction.

The judicial powers of a court in some con do signify the powers of a court which sits to decide controversies between parties [see Lord Denning in Attorney-General of Gambia v. N’Jie (1961) A.C. 617 at 633; Shell Company of Australia Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275, at 295.] Under our 1979 Constitution, subsection (3) of section 6 specifically provided that the courts to which section 6 relates established by the Constitution for the Federation and the States specified in subsection 5(a) to (f) of section 6 shall be the only superior courts of record in Nigeria, and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.

The chief distinction between superior courts of record and inferior courts of record are found in connection with jurisdiction. Prima facie no matter is deemed beyond the jurisdiction of a superior court unless it is expressly shown to be so while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is cognisable of the particular court. [see 10 Halsbury Laws of England 4th Ed. para. 713 page 715].

The High Court is a court of universal jurisdiction and superintendency in certain classes of action and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action. See R. v. Judge Pugh Ex parte Graham (1951) 2 K.B. 632 at 631; (1951) 2 All E.R. 307 D.C. On judicial power and of jurisdiction, the learned authors of Halsbury Laws of Eng- 45 land say:

“The King hath committed all his power judicial, some in one court some in another, so as if any would render himself to the judgment of the King in such case where the King hath committed all his power judicial to others, such a render should be to no effect (YB 8 H4 f 0 19). The King doth Judge by his Judges (the King having distributed his power judicial to several courts) and the King hath wholly left matters of judicature according to his laws to his Judges (YB 8 Vol. 6 f 020) 4 Co. Inst. 7071.” See Vol. 10 Halsbury Laws of England 4th Ed. para. 727 Note 7. See also Vol. 8 Halsbury Laws of England 4th Ed. para. 943.

In 1966, 15th January when the military took over the reigns of government in Nigeria and formed the Federal Military Government, the Federal Military Government, by the Constitution (Suspension and Modification) Decree, Decree No.1 of 1966 suspended certain provisions of the Constitution of the Federation and the States, vested the executive authority of the Federation and the States in the Head of the Federal Military Government (see section 7) and gave the Federal Military Government power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever. [See section 3(1)] .

The power to make laws given to the State Military Governors was severely limited and, in respect of the concurrent legislative list, with the prior consent of 15 the Federal Military Government. The powers of courts were severely left alone with them although certain matters were excluded from their jurisdiction. The paramountcy of the Constitution and the laws made by Parliament before 15th January, 1966 over an Edict was expressly re-affirmed (section 1(2) and section 3(4). Only a Decree could override the provisions of the Constitution. There continued therefore to be in the Constitution as amended by the Decree, the principle of separation of powers, a separation of functions as some prefer to call it.

Before the 1963 Constitution, the 1954 and the 1960 Constitutions of Nigeria also embodied the doctrine of separation of powers. Since Nigeria was then a dependence of the British Government, there were severe limitations. The British Parliament was then supreme. From 1963 the Constitution of the Federation became supreme. I am therefore in agreement with appellants’ counsel and I find and hold that the doctrine of separation of powers is implied in the governmental structure provided by the 1963 Constitutions of the Federation and the States in Nigeria. It is the hand that guided the framers of the Constitutions and could be seen between the lines of the various constitutional provisions.

As already expressed above, it is my opinion that the Boundary Commissioner is not a subordinate court of law. It is a tribunal tied to the executive for the executive’s administrative purposes. It exercises no judicial powers although the duties it performs are judicial in character. The performance of judicial duties does not convert a tribunal automatically into a court of law. The tribunal must qualify in other respects.

Lord Scarman in Attorney-General v. British Broadcasting Corporation (1981) A.C. 303 at 358 said:

“But in my judgment, not every court is a court of judicature, i.e. a court in law. Nor am I prepared to assume that Parliament intends to establish a court as part of the country’s judicial system whenever it constitutes a court….Where, therefore, Parliament entrusts a body with judicial function, it is necessary to examine the legislation to discover its purpose”

and at p. 359, he said:

“Though the United Kingdom has no written Constitution comparable with that of Australia, both are common law countries and in both judicial power is an exercise of sovereign power. I would identify a court in (or ‘of’) law i.e. a court of judicature, as a body established by law to exercise either generally or subject to defined limits the judicial power of the State. In this con judicial power is to be contrasted with legislative and executive (i.e. administrative) power if the body under review is established for a purely legislative or administrative system of the State even though it has to perform duties which are judicial in character. Unless a body exercising judicial functions can be demonstrated to be part of the judicial system, it is not, in my judgment, a court in law.”

In the case of Shell Co. of Australia v. Federal Commissioner of Taxation (1931) A.C. 275, Lord Sankey, LC. delivering the judgment of the Privy Council said of judicial power at page 295:

what is judicial power Their Lordships are of opinion that one of the best definitions is that given by Griffith, CJ. in Huddart, Parker & Co. v. Morehead 8 CLR 330, 357 where he says:

‘I am of opinion that the words “judicial power” as used in section 71 of the Constitution mean the power which every sovereign authority must of 15 necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial power. It is conceded in the present case that the Commissioner exercised no judicial power.

In that connection, it may be useful to enumerate some of the negative propositions on this subject. 1. A tribunal is not necessarily a court in the strict sense because it gives a final decision; 2. Nor because it hears witnesses on oath; 3. Nor because two or more contending parties appear before it between whom it has to decide; 4. Nor because it gives decisions which affect the right of subjects; 5. Nor because there is an appeal to a court; 6. Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commissioners (1924) 1 K.B. 171.” (Italics mine)

A right of appeal does not establish the vesting of judicial power either in the Boundary Commissioner or the Appeal Tribunal. A tribunal to be a court must have power to give binding and authoritative decisions (whether subject to appeal or not) when called upon to take action.

It is of tremendous significance in this regard to advert to the provisions of sections 8(1) (c) and (e) and 9 and 14(3) of the Local Government and Community Boundaries Settlement Law. These sections read:

“8(1) A Commissioner, for the purpose of an enquiry, may

(c) admit evidence, whether written or oral, which might be inadmissible 45 in civil proceedings;

(e) by himself or by any person authorised by him enter upon any land for the purpose of obtaining evidence or information required by or which may be required by or may be of assistance to him, or for the inspection of any proposed boundety line or the making of a plan required by section 7 or 13.”

“9. Subject to the provisions of this Law, the Governor in Council may give directions generally with respect to the practice and procedure in proceedings before a Commissioner.

14 (3) The determination of a boundary or of any rights or interests in or over land shall not have effect until notice is given in accordance with section 13.”

Can a tribunal empowered to admit evidence whether written or oral, which might be inadmissible in civil proceedings (in a court of law) be described as subordinate court of law Can a tribunal which has no power to give a binding and authoritative decision be classified as a subordinate court of law

In my respectful view, it cannot be so described. It does not qualify to be so classified.

On the issue of conferring judicial functions in respect of justiciable matters on a body other than a court, the doctrine of separation of powers, on which the 1963 Constitution is based, leaves no room for such a course of action. In my view, the Constitution contains adequate provisions for the establishment of courts by the Parliament in the Federation and by the House of Assembly in the States that it is definitely not the expressed intention of the Constitution that jurisdiction in justiciable matters which courts are equipped to handle be vested in anybody other than a court. In this regard, I may refer to the provisions of section 126 of the 1963 Constitution of the Federation. The section reads:

“126. Parliament may establish courts of law for the Federation in addition to the Supreme Court:

Provided that nothing in this section should –

(a) preclude the legislature of a Region from establishing courts of law for that Region, or confer upon Parliament powers to make provision with respect to the jurisdiction of any court established under this section additional to those conferred by the other provisions of this Constitution.”

Nothing, therefore, precludes the legislature of a State from establishing a subordinate court for the State, in this case, the Western State of Nigeria.

“Subordinate court” is defined in section 51 (4) of the Constitution of Western Nigeria as “any court of law in the State other than the Supreme Court, the Court of Appeal of the State,the High Court of the State and a Court Martial.”

Section 51 of the Constitution of Western Nigeria contains provisions relating to appeals to the High Court from subordinate courts and stipulates matters in which appeals to the High Court from the decisions of a subordinate court lie as of right and those in which appeals lie with leave of the High Court. In particular, subsection 1 (a) reads:

“An appeal shall lie from decisions of a subordinate court to the High Court of the State as of right or if it is provided by law in force in the State that an appeal as of right shall lie from that subordinate court to another subordinate court an appeal shall thereafter lie to the High Court as of right

(a) where the matter in dispute on the appeal to the High Court is of the value of fifty pounds or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or right of the value of fifty pounds or upwards final decisions in any civil proceedings.”

The Constitution, therefore, envisages that a claim to or question respecting property is a matter for the court of law and not a matter for administrative tribunals for non-judicial functions.

These appeal provisions by and large set out the guidelines to matters in respect of which jurisdiction should be conferred upon subordinate courts by the Legislature. There is therefore no room for the Western State legislature to manipulate and confer such judicial functions in justiciable matters upon anybody other than a court.

In the case of Attorney-General for Australia v. The Queen (1957) A.C. 288 Viscount Simonds delivering the judgment of the Privy Council said page 311:

“The problem can now be stated. Is it permissible under the Constitution of the Commonwealth of Australia for Parliament to enact that upon one body of persons call it tribunal or court arbitral functions and judicial functions shall be together conferred The problem can be solved only by an examination of the Constitution itself. The expression ‘arbitral functions’ is here used to describe compendiously the functions exercisable by the court other than its judicial functions”.

“Such is the bare structure of the Constitution and it will be necessary to look more closely into some of its provisions. But enough has been said to suggest that in the absence of any contrary provision the principle of the separation of powers is embodied in the Constitution ”

After an examination of several provisions of the Constitution of Australia vesting the legislative power in Parliament, executive powers in the Queen and judicial power in the Federal Supreme Court to be called the High Court of Australia and in such other Federal Courts as the Parliament creates and in such other courts as it invests with Federal jurisdiction, Viscount Simonds said at p. 312:

“Such is the bare structure of the Constitution and it will be necessary to look more closely into some of its provisions. But enough has been said to suggest that in the absence of any contrary provision the principle of the separation of powers is embodied in the Constitution.”

and at page 313, he observed:

”The problem is advisedly stated in this alternative form because it appears to their Lordships (to use words familiar in connection with another much debated section) that it would make a mockery of the Constitution to establish a body of 35 persons for the exercise of non-judicial functions, to call that body a court and upon that footing that it is a court vest in it judicial power. Griffith, CJ. once and for all established this proposition in words that have not always been sufficiently regarded.

‘It is impossible’, he said, ‘under the Constitution to confer such functions 40 (i.e. judicial functions) upon anybody other than a court nor can the difficulty be avoided by designating a body which is not in its essential character a court, by that name, or by calling the functions by another name.’ In short, any attempt to vest any part of the judicial power of the Commonwealth in anybody other than a court is entirely ineffective.”

It is essential that in the exercise of judicial power due regard must be paid to the principles and rules of law and justice. In United Engineering Workers Union v. Devanayagan (1967) A.C. 358, Viscount Dilhorne at p. 383, said:

”The judicial power of the State must therefore be exercised in conformity with principle. In Moses v. Parker (1896) A.C. 245, there was vested in the Supreme Court of Tasmania jurisdiction to deal with disputes regarding claims to grants of land. Such disputes had previously been dealt with by the Governor on the report of Commissioners, the Governor being in equity and good conscience entitled to make a grant. The statute which gave jurisdiction to the Supreme Court provided that it should ‘not be bound by the strict rules of law or equity in any case, or by any technicalities or legal forms whatever’. The Board held that the decision of the Supreme Court given under the statute was not a judicial decision admitting of appeal.”

At page 385, Viscount Dilhorne continued:

“In Attorney-General for Australia v. The Queen (1957) A.C. 288, 310, the Board after saying that –

‘the function of an industrial arbitration is completely outside the ream of 15 judicial power and is of a different order’ went on to cite the well-known passage from the judgment of Isaacs and Rich, JJ. in Waterside Workers Federation of Australia v. Alexander (J.W.) Ltd. (1918) 25 CLR. 434, 46

The essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist at the moment the proceedings are instituted whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other”.

at p. 386, he observed:

“Another essential characteristic of judicial power is that it should be exercised judicially. Put in another way, judicial power is power limited by the obligation to act judicially. Administrative or executive power is not limited that way. Judicial action required as a minimum the observance of some rules of natural justice.”

at p.387, he concluded:

“Finally, there is a principle that judicial power be exercised so as to do justice in the case that is being tried and the judge must not allow himself to be influenced by any other consideration at all. Consideration of policy or expediency which are permissible for the administration must be altogether excluded by the Judge.”

The Boundary Commissioner is most certainly, in my view, not a court of law. In Attorney-General v. British Broadcasting Corporation (1981) A.C. 303, Lord Scarman, at p.359 defined “a court in (or ‘of’) law, i.e. a court of judicature, as a body established by law to exercise either generally or subject to defined limits, the judicial power of the State.”

Continuing, he said:

“In this con, judicial power is to be contrasted with legislative and executive (i.e. administrative) power. If the body under review is established for a purely legislative or administrative purpose, it is part of the legislative or administrative system of the State, even though it has to perform duties which are judicial in character. Though the ubiquitous presence of the State makes itself felt in all sorts of situations never envisaged when our law was in its formative stage, the judicial power of the State exercised through judges appointed by the State remains an independent and recognisable separate function of government. Unless a body exercising judicial function can be demonstrated to be part of the judicial system, it is not in my judgment a court in law…My Lords, a local valuation court fails the test. Its function is essentially administrative though it must act judicially in discharging it.”

I think I have said enough to indicate that the Boundary Commissioner does not pass the test to qualify as a court of law. Not being a court of law, it is incompetent to exercise the judicial power of the State and as such is incompetent to make binding authoritative and enforceable declarations of rights or interests in or over land in the Western State.

The Boundary Commissioner is, in my view, an administrative or executive tribunal and as such, competent to determine boundaries between Local Government Councils or communities under the policy guidelines of the Government of the Western State. That determination being the main duty the Boundary Commissioner was assigned to perform and did perform, its determination of the boundary is valid.

Turning to the second question for determination in this appeal, the answer is clearly in the affirmative if the issue is referred to the Boundary Commissioner by the Governor-in-Council as required by the Law. (See section 4 of the law). There is nothing in the Law specifically conferring jurisdiction on the Boundary Commissioner to adjudicate on dispute as to ownership of land and declare title. The function of the Commissioner is expressly stated to be to undertake an enquiry and determine or fix the boundary between communities or local government councils.

This is clearly for executive or administrative purpose or to meet the desire of the Governor-in-Council. But in the process of enquiry, the Commissioner is enjoined to follow the principles laid down in section 5(1) and (2) of the Law. Subsections (1) and (2) read:

“(1) Where the boundary or boundaries to be determined are described in the Instrument or Instruments relating to the councils or communities 35 concerned by reference to any boundary of the area of jurisdiction of a chief, the commissioner shall, subject to subsection (2) of this section, settle as the boundary so described

(a) in the case of a local area, the line which he finds to be the limit of the proprietary interests of that area;

(b) in the case of the area of jurisdiction of a chief, the line which he finds to be the limit of the jurisdictional interests of that chief.

(2) Notwithstanding the provisions of subsection (1) of this section, the 45 Commissioner may if he considers that injustice or grave administrative inconvenience would be caused if the boundary between two council or community areas, or any part of it, were fixed in accordance with that subsection, settle as the boundary such other line as appears to him to be suitable having regard to the justice of the case, administrative convenience and the proprietary interests of the areas or the jurisdictional interests by reference to which the boundary is defined.” (Italics mine)

Local area and proprietary interests are defined in section 5(3) of the law. The definition strictly, does not cover the proprietary rights of the individual inhabitants.

‘Proprietary interests’ according to the definition:

“In relation to the area of a village group, clan or town means the right of disposition of interests in land of any person or authority on behalf of the inhabitants of such area, and, in relation to the area of a customary court or district, means the right of disposition of interests in land of any person or authority on behalf of the natives of the area of jurisdiction of a chief, village, village group, clan, town or other area traditionally associated with that area customary court or district area.” (Italics mine).

Local area is defined as the area of any village, village group, clan or town or the area of a customary court or of a district.”

It is imaginable that in the course of the enquiry, there might be conflicting claims of the limit of proprietary interests along the line of demarcation. In that case, it will devolve on the Boundary Commissioner to take a decision as to the position of the boundary line. Notwithstanding the provision of section 14(1) which is conceded by counsel to be unconstitutional and void, such a decision cannot, in the con of the Law, amount to a declaration of title in the strict legal sense in favour of or against the claimants whose evidence were considered in fixing the boundary.

However, the provision of section 14(1) of the law has not given counsel to all 25 parties to this appeal much comfort. The section gave determination of a local government or community boundary or any rights or interests in or over land by the Boundary Commissioner more force then the judgment of a court of law. It made such determination superior to the judgment of a court of law even the Supreme Court. It made the determination final and conclusive and not open to question in any court. In other words, the Law purports to deprive the courts of any jurisdiction to entertain any question about it. In particular, the subsection reads:

“14 (1) Subject to the provisions of section 15, the determination of a local government or community boundary, or any rights or interests in or over land of which notice is given in accordance with section 13 shall notwithstanding anything contained in any Instrument or judgment, be final and conclusive as to that local government or community boundary or those rights or interests in or over land and shall not be open to question in any court.” (Italics mine).

This provision implies that the decision of the High Court and the Supreme Court can be overridden by the determination of the Commissioner. The section is therefore in conflict with the provisions of section 121(1) of the 1963 Constitution of the Federation which provides that:

“These decisions of the Supreme Court shall be enforced in any part of Nigeria by the High Court having jurisdiction in that part of Nigeria and by all persons, authorities and other courts of law in that part as if they were decisions of that High Court.”

Since by his findings, the Boundary Commissioner can deprive owners of land of their rights or interests in the land, it also conflicts with section 31 (1) which provides:

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

(a) requires the payment of adequate compensation

(b) gives to any person claiming such compensation a right of access, for the determination of his interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria.” (Italics mine).

The Constitution of the Federation therefore entrenches a right of access to the High Court in the determination of his interest in the immovable property.

In 1976, the Federal Military Government by Decree No. 33 of 1976 titled ‘Public Lands Acquisition (Miscellaneous Provisions) Decree, established lands tribunals with powers to hear and determine:

(a) any question relating or concerning ownership, whether beneficial or otherwise of any land to be compulsorily acquired by the government for the public purposes of the Federation or of a State; and

(b) any question relating to or concerning the amount of compensation payable in respect of such acquisition and the persons entitled to such compensation. (section 13).

The Decree by section 14(1) expressly provides that

“A lands tribunal shall be a superior court of record and shall in respect of matters on which jurisdiction is conferred on it under this Decree have all the powers of the High Court of a State in its original jurisdiction. (Italics mine).

The importance of the property rights and interests in land has never been left in doubt by the Constitution of the Federation. Whenever there is any dispute as to the ownership of these rights and interests, the proper forum for resolution of such disputes is the court of law. Realizing this, the Federal Military Government, by section 14(2) of Decree No. 33 of 1976 (Public Lands Acquisition Miscellaneous Provision) Decree) made provision enabling the lands tribunal to have the powers and adopt the practice and procedure of the High Court. It reads:

“Subject to this Decree, the provisions of any law of a State, including the Constitution, regarding the powers, practice and procedure of a High Court, shall be applicable in relation to the lands tribunals established for a State as if the lands tribunal were duly established by and expressly mentioned in those laws.”

It is therefore my opinion that although the Boundary Commissioner had jurisdiction to enquire and determine the boundary between Oyo and Ogbomosho communities under the Local Government and Community Boundaries Settlement Law, it has no jurisdiction to adjudicate on any dispute as to ownership of rights or interests in land and make grants of the declaration of title to such rights or interests in land in favour of any party. Such declarations of title will have no legal binding effect on those claiming such rights or interests as they are null and void.

Although ownership of rights or interests in land is a necessary consideration in the determination of the boundary between the two communities, a declaration on disputed ownership is outside the jurisdiction of the Boundary Commissioner and all such declarations in the findings made by the Boundary Commissioner are of no effect.

The third question does not arise in view of the answer I have given to the first question for determination. The Local Government and Community Boundaries Settlement Law did not invest the Boundary Commissioner with the attributes of a subordinate court of law. If I had held that the Boundary Commissioner were a subordinate court of law, it would have been difficult for me to escape from the decision that the law setting up the office and function is valid and constitutional notwithstanding the invalidity and unconstitutionality of the appeal provisions section 11(5) and section 14(1) which, in my view, are severable.

Turning to the fourth question, i.e. whether the provisions of section 22 of the 1963 Constitution are relevant to the issues raised in the judgment of Agbaje, J. and if so to what extent I find myself in agreement with the view expressed by Dosunmu, J.C.A that section 22 of the 1963 Constitution is irrelevant to the issue of competence of the Boundary Commissioner raised in the judgment of Agbaje, J. Agbaje, J. appears to have considered only the proviso to subsection (1) of

section 22. Section 22(1) gives expression to the fundamental right of a person to fair hearing within a reasonable time in the determination of his civil rights and obligations by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. It declares him entitled to that right. In other words, a court or tribunal constituted in such a manner as to secure its independence and impartiality is under a duty to give to a person fair hearing within a reasonable time in the determination of his civil rights and obligations.

It is incumbent on the authorities to so constitute the court or tribunal that it is seen to be independent and impartial.

In my view, no query can be raised against the Boundary Commissioner about its independence and impartiality. Section 3(1) of the Local Government and Community Boundary Law requires the Governor to appoint fit and proper persons to the office. In the instant appeal, the qualification of the person appointed meets the requirement. He was a legal practitioner with more than 10 years post call experience. This is the minimum qualification for appointment to the office of a judge of the High Court.

Before assuming office, a Boundary Commissioner is required to subscribe to the oath prescribed in the first Schedule to the Law. The of the oath requires him to faithfully and impartially and to the best of his ability discharge the duties devolving upon him by virtue of his appointment and to do right according to law to all persons that may come before him without fear or favour, affection or ill-will.

I am of the view that the Law made adequate provisions to secure the impartiality and independence of the Boundary Commissioner. The power to determine a boundary between Local Government Councils or between communities which, in my opinion, involves a determination of questions that may affect the civil rights and obligations of the community or the individual in the village or village group or local area concerned does not, by itself, invalidate the Local Government and Community Boundaries Settlement Law.

The learned counsel to the 2nd and 3rd respondents, Dr. F. A. Ajayi, had in his brief, objected to the challenge to the validity of Edict NO.5 of 1968 on the ground that the jurisdiction of this court is ousted by section 6(6) (d) of the Constitution of the Federal Republic of Nigeria, 1979. The objection was not raised in any of the two courts below. It is to be reiterated that the challenge to the Edict was that it was in conflict with the unsuspended provisions of the 1963 Constitution. In other words, it was in conflict with the Constitution as amended by Decree No.1 of 1966. The Decree No.1 of 1966 expressly provided by sections 1 (2) and 2(2) that those unsuspended provisions shall continue to be in force and in my view, any Edict in conflict with the unsuspended provisions of the Constitution is directly in conflict with the Decree that has continued to be in force. It was only in respect of a Decree that Decree No.1 of 1966 expressly provided that the Constitution shall not prevail over and render void. See section 1 of the 1963 Constitution as modified by Decree No.1 of 1966. The objection is therefore without substance and learned counsel for the respondents wisely decided not to proceed with it.

In summary,

(1) the Boundary Commissioner is not a subordinate court of law and I am unable to agree with Uche Omo and Dosunmu, JJ.C.A. that it is.

(2) The Boundary Commissioner is a tribunal set up for executive or administrative purpose and therefore it is an administrative tribunal although some of its functions may be judicial in character.

(3) Since it is empowered by the law setting it up, i.e. the Local Government and Community Boundaries Settlement Law to “admit any evidence, whether written or oral which might be inadmissible in civil proceedings” in a court of law, its practice is in conflict with principles of law in operation in a court of law and its findings cannot be termed judicial decisions admitting of appeal to a court of law.

See also  Chukwudozie Anyabunsi V. Emmanuel Ugwunze (1995) LLJR-SC

(4) The Boundary Commissioner is not vested with the judicial power of the Western State and exercises none, the character of its functions notwithstanding.

(5) The Boundary Commissioner is only entitled to make a finding relating to the boundary or any part of the boundary to be determined.

(6) His main duty is to enquire into and determine such boundaries as the Governor in law may refer to him by Order in Council for determination.

It has been argued that the provisions of section 11(5) of the Local Government and Community Boundaries Settlement Law are unconstitutional. I have not been persuaded that the provisions of that subsection are unconstitutional.

(7) The Appeal Tribunal was established by the Local Government and Community Boundaries Settlement Law Cap 69 (see section 10)

(8) Although it is made up of the Chief Justice and two judges of the High Court, its function is to hear appeals filed by any council, community or other persons affected against the finding of a Commissioner relating to the boundary or part of the boundary determined or to any rights or interests in or over land of such council, community or person. The Appeal Tribunal is not a High Court.

(9) Not being a High Court, it enjoys no better status than the Boundary Commissioner as it cannot administer any law outside that stipulated by the law establishing it.

(10) Accordingly, the Appeal Tribunal is not a subordinate court.

(11) Not being a subordinate court, its decisions are not judicial decisions admitting of appeal to a court of law, i.e. High Court and Supreme Court. Accordingly, the provision of section 11(5) of the Local Government and Community Boundaries Settlement Law to wit “No appeal shall lie from the decision of the Appeal Tribunal” raises no issue.

(12) The powers exercisable by the Appeal Tribunal upon hearing of an appeal are set out in section 11(1), (2), (3) and (4) of the Local Government Community and Boundaries Settlement Law. In particular, subsection (3) reads:

‘Upon the conclusion of the hearing of the appeal, the appeal tribunal shall deliver its decision and either –

(a) confirm the finding of the Commissioner with respect to the matter upon which the appeal is taken or

(b) Vary to such extent as may be stated in the decision, the finding of the Commissioner.

(13) Section 14(1) of the Local Government and Community Boundaries Settlement Law is in conflict with the 1963 Constitution and is therefore void to the extent of its inconsistency.

(14) Of the two grounds of appeal to this court, ground 2 is a total departure from the case set up by the appellant in the High Court.

(15) It is only ground 1 which complains of the competence of the Boundary Commissioner to try the boundary dispute between Oyo and Ogbomosho communities that really amounts to a complaint supporting the case set up by the appellant in the High Court.

(16) And this ground 2 has failed despite the excursion of the Boundary Commissioner and the Appeal Tribunal into a claim for declaration of title to land which was not referred to the Boundary Commission and which I have held the Boundary Commissioner has no jurisdiction to entertain.

In so far as the findings dealt with the determination of the boundary which is the main duty of the Boundary Commissioner, the findings will not be set aside. To that extent, the appeal has failed. However, I will declare section 14(1) of the Local Government and Community Boundaries Settlement Law unconstitutional as it is in conflict with the Constitution and it is declared null and void to the extent of its inconsistency with the 1963 Constitution as already indicated above.

The appeal has failed and will be dismissed. It is hereby dismissed for the reasons stated above. The respondents are entitled to costs in this appeal fixed at N300.00 to be paid by the appellants. The decision of the Court of Appeal dismissing the plaintiffs’ claim is hereby affirmed.

ANIAGOLU, J.S.C.: In the Ibadan High Court, the Alafin of Oyo took out this action against the Attorney-General of Western State, the Ogbomosho Local Government Council and the Sohun of Ogbomosho as representing the Ogbomosho Community, claiming jointly and severally:

“(i) a declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare and dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice;

(ii) an order setting aside the said decision;

(iii) an injunction restraining the 1st defendant and all agents officers and other servants of the 1st defendant from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs.”

The chronology of events, about which there is no dispute, leading to this litigation, was that:

in 1967, the Ogbomosho Community took action against the Oyo Community for a declaration of title to the land the subject-matter of this litigation; in 1968, an Edict – “the Local Government Boundaries and Communities Settlement (Amendment) Edict, Cap. 69” Volume IV Laws of Western Nigeria 1959 – was promulgated to give the Boundaries Commission, which had been established by the 1956 Local Government Boundaries Settlement Law, power to decide proprietary interests in land suits;

in 1969, the Governor, acting on the 1968 Edict, by the Local Government and Community Boundaries (Determination) Order, 1969, published as W.S.L.N. No.114 of 1969, referred the 1967 land dispute to the Boundary Commission; on 29th January 1971, the Boundary Settlement Commissioner (Mr. E. Ogundare Esq.,), after hearing evidence, determined the ownership of the land in dispute in favour of Ogbomosho Community (see exhibit E); on 19th December 1973, the Oyo Community took out the present action seeking to nullify the said Boundary Settlement Commissioner’s decision of 29/1/71 on what is basically an issue of jurisdiction.

The action was heard by Agbaje, J., who on 28th February 1977, granted the declarations sought holding, inter alia, that the tribunal presided over by M. E. Ogundare Esq., was not competent to adjudicate upon a dispute between the Communities as to the boundaries between them.

The Ogbomosho Community went on appeal to the Federal Court of Appeal which, by majority (Akanbi and Omo, JJ.C.A.), allowed the appeal and dismissed the claim of the Oyo Community.

From the said judgment of the Federal Court of Appeal the Oyo Community has now appealed to the Supreme Court.

Counsel for the parties have submitted in their briefs of argument what they consider to be the questions for determination in this appeal. The appellants have formulated theirs in four questions as follows:

“(1) Whether the tribunal over which the Boundary Settlement Commissioner presided was a court of law

(2) If the answer to question (1) is in the negative whether the said Commissioner is competent to determine the boundary dispute between Oyo and Ogbomosho Communities.

(3) If the answer to question (1) is in the affirmative whether the provision of the Law setting up the office and functions of the Boundary Commissioner is valid and constitutional having regard to the undoubted fact that the provisions of the said Law relating to appeals from decisions of the commissioner are plainly unconstitutional and void

(4) Whether the provisions of section 22 of the 1963 Constitution are relevant to the issues raised in the judgment of Agbaje J. and if so, to what extent”

The respondents, on the other hand, have made their own questions much more elaborate and have formulated them under nine separate issues set out hereunder:

“1. Whether there are any provisions in the Constitution of the Federation 1963 No. 20 or in the Constitution of Western Nigeria set out in the Schedule to the Constitution of Western Nigeria Law, 1963, No. 26 of 1963, in force at the material time, to the effect that all justiciable issues between persons or communities in relation to title to land forming part of disputed boundaries between different communities or local government councils must be tried at first instance only by the High Court or by the Customary Courts, as courts of law’within the canopy of the Judiciary’.

  1. Whether there are any provisions in the High Court Law, Cap.44, and the Customary Courts Law, Cap. 31, in force at the material time, to the effect that all justiciable issues between persons or communities in relation to title to land forming part of disputed boundaries between different communities or local government councils must be tried at first instance only by the High Court or the Customary Courts, as courts of law ‘within the canopy of the judiciary’.
  2. Whether the Federal Court of Appeal was right in holding that the boundary Settlement Commissioner is a tribunal validly established under section 22 (1) of the Constitution of the Federation 1963, No. 20.
  3. Whether, in spite of the substantive provisions of s.22(1) of the Constitution of the Federation expressly conferring not only on courts of law but also on tribunals jurisdiction to determine the civil rights and obligations of persons, provided that such tribunals are established by law providing for a fair hearing within a reasonable time and are so constituted as to guarantee their independence and impartiality, the implied doctrine of the separation of powers could still be so applied in the present case as to render unconstitutional the office of the Boundary Settlement Commissioner established to determine boundary land disputes under the Local Government and Community Boundaries Settlement Law, Cap.69 as amended by the Local Government and Community Boundaries Settlement (Amendment) Edict, 1968, No.5 of 1968.
  4. Whether in spite of the fact that there are no express provisions in the Constitution of the Federation 1963 or the Constitution of Western Nigeria 1963 (both then in force) similar to the express provisions in section 6 of the present Constitution of the Federal Republic of Nigeria 1978 No. 25 in respect of the vesting of judicial powers, it could still properly be held that, section 22(1) of the 1963 Constitution notwithstanding, the jurisdiction conferred on the Boundary Settlement Commissioner by the law and the Edict aforementioned was an unconstitutional and so invalid conferment of the exercise of judicial powers.
  5. Whether for the purposes of the present appeal there are any such differences or distinction between Cap. 69 as originally enacted and the amending Edict No.5 of 1968 as would render the former constitutional and valid but the latter unconstitutional and invalid.
  6. Whether the provisions in the Local Government and Community Boundaries Settlement Law, Cap. 69 as amended by Edict No.5 of 1968 providing for appeals from the Boundary Settlement Commissioner to the Appeal Tribunal and for no further appeal from decisions of the Appeal Tribunal are unconstitutional having regard to the fact that the Supreme Court had in the case of Chief Ademola Ogunniyi & Another v. Dr. Funsho Adaramola & Another Suit No. SC.171/1973 reported in (1973)12 S.C.55 commented without disapproval on the provisions of the Kwara State Local Boundaries Settlement Edict, 1970, No.9 of 1970 excluding appeals to the courts and which Edict is in pari materia with Cap. 69 as amended by Edict No.5 of 1968.
  7. Whether the said provisions relating to appeals contained in Cap. 69 in respect of the Boundary Settlement Commissioner and the Appeal Tribunal, whose offices, were originally constituted in 1956, could, by regarding the same as ‘existing laws’ which are required by section 156(1) of the Constitution of the Federation 1963, No.20 (repeating earlier constitutional provisions) to be construed with such modifications (whether by way of addition, alteration or omission) as may be necessary to bring them into conformity with the Constitution of the Federation and the Constitution of the Region, be adapted so as to constitute both the Boundary Commissioner and the Appeal Tribunal as ‘subordinate courts’ within the Constitution of Western Nigeria from which there would be a constitutional right of appeal in civil matters first to the High Court and ultimately to the Supreme Court under the constitutional provisions for such appeals which appear to have been first made in 1959 by a new section 148 of the then Constitution by the amending Nigeria Constitution Order in Council, Statutory Instrument 1959/1052, published as W.R.L.N. 527 of 1959.
  8. Whether even if the said provisions relating to appeals contained in sections 10, 11, 12 and 14(1) of Cap. 69 were constitutionally objectionable, they could not have been severable from the rest of Cap.69 as amended by the Edict and comprising on the whole sections 1 to 17, so as to hold constitutional and valid what would, after such severance, remain with respect to the appointment of the Boundary Settlement Commissioner, reference of boundary disputes to him for determination, principles upon which boundaries are to be determined, duties of the Commissioner, matters to be included in this findings, his practice and procedure, etc.”

Although each question posed in the brief of argument of each of the parties has its relevant position in the arguments presented to this Court, yet I consider that the issues canvassed in this appeal can quite easily be condensed to three heads:

  1. Was the 1968 Boundary Commission a Court of law
  2. Had the 1968 Boundary Commission the constitutional power to determine proprietary rights in land suits between individuals, or between communities, so as to enable it to grant valid declarations of title to land;
  3. Was the Local Government Boundaries and Communities Settlement Law, Cap. 69 validly made, or was it unconstitutional and ultra vires, whether as to the entirety of the law, or as to sections thereof, having regard to the 1963 Constitution of Nigeria

Let me start to answer the posers with an answer to the first question whether the Boundary Commission was a court of law. Now, S. 165 of the 1963 Constitution was the main interpretative section of that Constitution but the term “court” was not therein defined. It was, however, defined in S.33 which was another interpretative section made exclusive to Chapter III of the same Constitution dealing with Fundamental Rights. The relevant portion of S.33 reads:

“33. Without prejudice to the generality of section 165 of this Constitution in this Chapter, unless it is otherwise expressly provided or required by the 35 con –

‘court’ means any court of law in Nigeria but, except in relation to a member of the armed forces of the Federation, does not include a court-martial,.”

Chapter VIII of the Constitution of the Federation made provisions for the establishment of the Supreme Court; the High Court of Lagos which was otherwise called the High Court of the Federal Territory (see: S. 122); and the Regional Courts of Appeal (S.127). For Western Nigeria Chapter IV of the Constitution of Western Nigeria again made provisions for Courts in Western Nigeria. S.48(1) created the 45 High Court for the Western Region; S.52(1) thereof created the Court of Appeal for the Region. The term “subordinate court” was defined in sub-section (4) of S.51 of the Constitution of Western Nigeria to mean

“any court of law in the Region other than the Supreme Court, the Court of Appeal of the Region, the High Court of the Region or a court-martial.”

S.22(1) of the Constitution of the Federation, 1963 specifically required

“a fair hearing within a reasonable time by a court or other tribunal established by law”

and therein clearly distinguished a court from other tribunal. Neither in the Constitution of the Federation nor in any of the Constitutions of Western Nigeria or other Regions was the term “tribunal” equated to a “court of law” or used in juxtaposition with a court of law. From a close examination of all the foregoing sections it appears to me without doubt that the tribunal created by the 1968 Local Government Boundaries and Communities Settlement Law, Cap. 69, was not a 10 court of law within the contemplation of the 1963 Constitution of the Federal Republic of Nigeria.

Having decided that the tribunal was not a court, the next question (under (2) above) was whether it had the constitutional right under the 1963 Constitution to determine proprietary interests in land. Added to this, is the implied question of whether the tribunal was validly established under S.22(1) of 1963 Constitution the provisions of which are that:

“22(1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:

Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine 25 (a) questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person; or (b) chieftaincy questions.” I deal first with whether the tribunal was validly established. The Local Government Boundaries Settlement (Amendment) Edict, 1968 (hereinafter called “the Law”) was enacted by the Military Governor, Western State of Nigeria, Brig. R. A. Adebayo, on 18th March 1968 and came into force the same day. By its S. 2, the long title of the Local Government Boundaries Settlement Law of 1956 was amended by inserting immediately after the word “Councils” in the third line there of the words “And Communities”. By this, that law which hitherto was employed to determine boundaries between local government areas for the purpose of local government administration was expanded and used to determine boundaries between communities. I shall return to this later.

Suffice it to say that the Edict was enacted by the Military Governor of Western State of Nigeria, who, by S.3(3) of the Constitution (Suspension and Modification) Decree, No.1 of 1966 was the proper authority empowered to make laws “for the peace, order and good government” of Western Region. In that regard, he was empowered to make an Edict demarcating one local government area from another for the purpose of the better administration of the area “for the peace, order and good government” of the whole of Western Nigeria.

There, therefore, cannot be any quarrel with the establishment, per se, of the Boundary Settlement Commission of Western Nigeria as a tribunal under the 1963 Constitution of the Federation of Nigeria S.22(1) as modified by the Constitution (Suspension and Modification) Decree, No. 1 of 1966. The Law under which the Commission was brought about – namely, the Local Government Boundaries and Community Boundaries Settlement Law – was, in my view, validly enacted.

But there is a vast difference between the constitutional validity of the enactment of a statute, qua statute, and the constitutional validity of the express provisions of the statute thus validly enacted. Put in another way, the statute as statute may be validly enacted but the contents may variously be in consonance with the Constitution or be in conflict with it.

This now brings me to a consideration of whether the said Boundaries Settlement Commission had the constitutional power to decide proprietary rights in land suits and make valid declarations of title to land. Dr. Ajayi, for the respondents, has, in an impressive and forceful submission contended, both in his brief and before us that there was no limitation on the powers of the legislature to confer upon a tribunal the power to decide land cases. There was nothing inherently wrong for the legislature to confer co-ordinate jurisdictions, in respect of the same matter, upon two separate institutions namely the High Court and a Boundary Settlement Tribunal. He submitted that our 1963 Constitution was a written constitution in which all the provisions were expressly stated, leaving no room for implied powers. Therefore, there was no question of a denial of jurisdiction to hear land cases to a tribunal by merely implying that the tribunal could not have such a power when in fact the proviso to S.22(1) states categorically

that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine

(a) questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person;”

He drew special attention to the fact that the Boundary Settlement Commission was not set up purposely to get transferred before it the High Court action which the 2nd and 3rd respondents had previously instituted and that the Oyo and Ogbomosho boundary dispute which was referred to the Commission was one out of 18 different local government and community boundary disputes which were referred to the Commissioner, Mr. M. E. Ogundare, for a determination under W.RNL. 114 of 1969. He further stated that the jurisdiction of the Commissioner was not in respect of lands, generally, all over Western State. The jurisdiction was only in respect of lands forming the subject- matter of land disputes either between 30 Local Government Councils or between Communities.

Again, he pointed out that the Commissioner, Mr. Ogundare, was a person qualified to be appointed a Judge of the High Court at the time he carried out the assignment. Indeed, he said, the said Mr. Ogundare is now a Justice of the Court of Appeal. The practice and procedure under which he determined his assignment were, he argued, spelt out in W.R.N.L. 29 of 1968, paragraph 2 of which required that the practice and procedure of the Commission be regulated by the rules of practice and procedure of the High Court. He pointed out that in S.3(a) of the Edict of 1968, the Commissioner was required to take the oath of office as prescribed in the 1st Schedule which bound him to impartiality and even-handed justice. A further amendment to S.5(2) required the Commissioner to avoid injustice and to pay due regard to the justice of each case.

Dr. Ajayi emphasized that the doctrine of the separation of powers for which there was no express provision in the 1963 Constitution could not have any application to this appeal – a doctrine which could only be imported by way of “implied prohibition”. He contended that the doctrine of the separation of powers could not be properly applied to declare invalid the jurisdiction of a tribunal which satisfied the express provisions of S.22(1) of the 1963 Constitution of the Federation. In any event, he argued, it would be far too wide to infer from the doctrine of the separation of powers the extremely broad proposition that under the law then in force in Western Nigeria all justiciable issues fell for determination only within the jurisdiction of courts coming properly under the Judiciary.

Dr. Ajayi concluded his brief stating that it would seem to be going rather too far for the court to hold that the whole of the Law, like Cap. 69, validly made originally would now become void because it purports to enable some other authority than the courts to decide particular issues finally and without providing expressly for appeals to the High Court and finally to the Supreme Court. There was, however, the principle of severability by which the law of interpretation requires us to severe the good part of the Law from the bad part declaring the bad part void and retaining the good, he finally submitted.

Unlike the 1979 Constitution, I agree that the 1963 Constitution did not specifically vest judicial powers in the Judiciary. It however compartmentalized the traditional three arms of government into the Legislature which came under Parliament in Chapter V, the Executive which was provided for in Chapter VI and the Judiciary which was established under Chapter VIII. The 1979 Constitution clearly vested legislative powers of the Federation in the National Assembly in S.4(1); the executive powers in the President under S.5(1)(a); and judicial powers in the courts named in S.6 of the said Constitution.

I have deliberately used the word “traditional” because many of us who have had the privilege of witnessing the growth of the law of this country way back from the colonial days, know that, by the legal tradition of this country, matters concerning legislation were handled, even from those far off colonial days, by the Legislative Councils, while executive matters were handled by the erstwhile Governor-Generals-in-Council, and later, by the President, at first, in-Parliament and later in-the National Assembly – and all that while, leaving the Judiciary exclusively to deal with and determine justiciable issues.

It is with that traditional background that one appreciates the decision of Palmer, J., in the Inter-tribal Boundaries Settlement Ordinance Inquiry Case in N.L.R. at p.135 which was referred to him and which he headed simply as “Obunaw-Akpugo people v. Akpanwfu people”, and in which he held that where the Inquiry Boundary had been fixed by the District Officer, although that was not a determination of the proprietary rights of the parties in respect of the contiguous lands separated by the boundary, yet, it was a boundary beyond which none of the contending parties could be allowed to extend their claim of ownership. The three questions which were put to the learned trial Judge and which he answered in his decision were:

“1. Does a boundary demarcated by a competent authority in an Inquiry instituted under the Inter-Tribal Boundaries Settlement Ordinance, Cap. 95 Laws of Nigeria between two or more tribes as defined in the said Ordinance settle and/or determine the question of ownership on both sides of that 40 boundary. (Italics mine).

  1. Does such boundary affect the private rights and/or interests in the lands affected by such boundary and acquired by individuals by virtue of their belonging to the respective tribes which were parties to the Inquiry.
  2. Can a decision in an Inquiry instituted under the said Ordinance constitute ‘res judicata’ to a subsequent action for declaration of title and injunction by a party to the said Inquiry to lands on the other side of the boundary.”

At page 136 the learned trial judge gave the answers to the questions as follows:

“1. No, but the decision does decide on non-ownership.

  1. Yes to the extent that if e.g., individuals in a tribe on the west of the demarcated boundary had claimed ownership in land on the east, that claim would be invalid.
  2. The decision cannot give a title to any person but can decide that a person (or tribe) has no rights in certain land. Under s.11 of the Ordinance if a person crosses the boundary he would be guilty of an offence (unless of course it was with consent of the other tribe). This means in effect that once a boundary has been demarcated under the Ordinance, the boundary is res judicata to the extent that the boundary will not be again decided by the court but the title to the land on either side of the boundary may be decided as between the parties and third parties but not as between themselves.” (Italics mine)

That case went on appeal to the West African Court of Appeal where it was properly headed as Nnamene Anjoku and Vincent Nwafor for the people of Obunaw Akpugo v. Ivube Nwa Nnamani for the people of Akpawfu (see 14 W.A.C.A. 357) and the appeal was dismissed. Counsel for the appellants argued before the court that such a boundary fixed could not be treated as res judicata being merely an administrative boundary but the court (per Verity, C.J. Nigeria) rejected the argument holding, inter alia, that:

“…a District Officer acting under S.3 of the Inter-Tribal Boundary Settlement Ordinance is a person vested with judicial authority to hear and determine a class of disputes by the provision of a statute and that when so acting he is a judicial tribunal and his decision, subject to the rights of review thereof provided by the statute, is conclusive upon the issue so determined by him.”

Be it noted however, and this must be emphasized, that the decision in that case was not as to the ownership of the lands contiguous to the boundary fixed by the District Officer but as to the limit beyond which none of the contending parties could cross to assert their claims of ownership. The ownership of the contiguous lands was still a justiciable issue triable by courts of competent jurisdiction.

Chief Eke Oja and Others v. Chief Kanu Ukpai and Another (1958) Vol. II Journal of African Law p.119 was another case on the Inter-Tribal Boundaries Settlement Ordinance which went on appeal to the Privy Council. Their Lordships of the Privy Council held that the alleged decisions of the two District Officers was not in reality a decision but merely a recommendation put forward to assist higher authority to review the two differing decisions of the two District Officers. Although the Privy Council decision did not settle any issue of principle, yet it was illuminating on the objects and interpretation of the Inter-Tribal Settlement Ordinance, mentioning the decision of the West African Court of Appeal in Nnamene Anjoku case (supra).

In a part of their judgment, their Lordships brought out the salient point that sections 4 and 5 of the Ordinance made it clear that a decision under the Ordinance “need not be based on any principles of law”.

Their Lordships continued and stated:

“Their Lordships cannot think that a jurisdiction of this kind was intended to take away the right of any tribe to have its claim to ownership of a defined piece of land decided by the Supreme Court [as the High Court was then known] on legal principles, after hearing legal argument by persons skilled in the law.”

It must be pointed out that in the instant Boundary Settlement Law of Western State, the Law, by its section 3(1), had provided that there shall be appointed from time to time “fit and proper persons to be Boundary Settlement Commissioners”

and that Mr. M. E. Ogundare was clearly a fit and proper person. Moreover, lawyers were permitted to appear before the Commissioner to represent the contending parties (section 6(c) and, in fact, in exhibit E, lawyers appeared and argued their clients’ case. Provisions for appeals to the Appeal Tribunal, made up of the Chief Judge of the State and two other Judges, from decisions of the Commissioner, were made in section 10 of the Edict. The question was: despite all these was the Commissioner constitutionally competent to determine ownership of lands, between rival claimants, as did Mr. M.E. Ogundare (as he then was) in exhibit E

The Supreme Court had in Lakanmi and Another v. Attorney-General (West) 10 (1974) 4 E.C.S.L.R. 713 recognised the traditional roles of the three arms of government in this country. At page 731, dealing with the doctrine of the separation of powers and the role of the Judiciary within that doctrine, the Court said (per Ademola, C.J.N.):

“We must here revert again to the separation of powers, which the Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State.”

Lakanmi was decided on 24th April 1970 when the 1963 Constitution, with its modifications, was in operation. But even before then, the Constitutions of most Commonwealth countries – deriving their constitutional concept, as the erstwhile colonies of Britain, from the British mode of parliamentary democracy – had as one of their basic norms the principle of the separation of powers between THE LEGISLATURE, THE EXECUTIVE and THE JUDICIARY. These concepts and norms were what Lord Diplock aptly described as “the Westminster Model” in the Jamaican Gun Court case of Hinds v. The Queen (1977) A.C. 195 (P.C.). I am respectively prepared to accept, as applicable to this country and other Commonwealth countries, the assertion of Lord Diplock at p.212 ibid that:

“It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the Constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the constitution itself may even omit any express provision conferring judicial power upon the judicature. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively.”

Continuing at page 213 Lord Diplock stated that it

“is implicit in the very structure of a Constitution on the Westminster model… that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution:

Liyanage v. The Queen (1967) 1 A.C. 259,287- 288.” (per Lord Diplock at p.213 ibidem).

Liyanage above mentioned, concerned the interpretation of the Constitution of Ceylon – another old colonial country of Britain on the “Westminster model”. Delivering the judgment of the Privy Council ten years earlier than Hinds Lord Pearce, regarded the non-expression, in the Constitution of Ceylon, of express vesting of judicial powers in the judicature as not derogating from the accepted norm that judicial powers were exclusively vested in the Judiciary. He said:

“And although no express mention is made of vesting in the judicature the judicial power which it already had and was wielding in its daily process under the Courts Ordinance, there is provision under Part 6 for the appointment of judges by a Judicial Service Commission which shall not contain a member of either House but shall be composed of the Chief Justice and a Judge and another person who is or shall have been a Judge. Any attempt to influence any decisions of the Commission is made a criminal offence. There is also provision that Judges shall not be removable except by the Governor-General on an address of both Houses.

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature.”

I am clearly of the view that in 1968 when the amended Boundary Settlement Law was passed incorporating power to determine proprietary interests in land matters in those granted to the Boundary Commissioner in the instant appeal (such as can be implied in the provisions of S.5 of the Edict), the substantive jurisdiction to determine ownership of disputed lands in Western State of Nigeria was vested in the High Court of Western State and that the purported exercise of that jurisdiction by the Commissioner, Mr. M. E. Ogundare (as he then was), was an unwarranted usurpation of the jurisdiction of the High Court which was entirely null and void. The said Mr. M. E. Ogundare was entirely without jurisdiction to make valid declarations of title to land and the declaration of title he made in exhibit E was invalid and of no legal effect. The Boundary Settlement Commission was no part of the judicial system of the Western State. The boundary he made was, however, valid as affecting and demarcating the limit of the Oyo and Ogbomosho Local Government Areas. For the avoidance of doubt, his declaration in exhibit E that: 45

“All land to the East of this boundary line is hereby declared to belong to Ogbomosho Community and all land to the West of the line is declared to belong to Oyo Community”

was made without jurisdiction and was unconstitutional and therefore null and void.

It cannot be too often repeated, and I had once before drawn attention to this in Dr. O.G. Sofekun v. Chief N.O.A. Akinyemi and Others (1980) 5-7 S.C. 1 at 25-26, that the jurisdiction of courts must be jealously guarded if only for the reason that the beginnings of dictatorships in many parts of the world had often commenced with usurpations of authority of the courts and many dictators were often known to become restive under the procedural and structural safeguards employed by the courts for the purpose of enhancing the rule of law and preserving the personal and proprietary rights of individuals. It is in this vein that the courts must insist, wherever possible, on a rigid adherence to the Constitution of the land and curb the tendency of those who would like to establish what virtually are kangaroo courts, under different guises and smoke- screens of judicial regularity.

This, the courts, in the discharge of their appointed duties, must sternly always endeavour to resist. As has been recognised in Attorney-General of Australia v. The Queen (1957) A.C. 288 at 309 in a Constitution that embodies separation of powers, it is not permissible to remove judicial functions from the courts and confer them upon a non judicial body – in that case, the Court of Conciliation and Arbitration, whose functions were merely arbitral.

Having decided that the Local Government and Community Boundaries Settlement Law was validly enacted I now turn to a determination of the constitutional validity of some of the contents and provisions of that Law. Section 11(5) of the Law made the decision of the Appeal Tribunal, to which appeals were made to lie under S.10(1) thereof, final. The sub-section (5) provides that:

“No appeal shall lie from the decision of the appeal tribunal.”

And so, the purposes of decisions in land cases, for example, by the Commissioner as provided for in the Law, the Appeal Tribunal, composed of the Chief Judge of the State and two other Judges of that State, took the place of the Supreme Court of Nigeria. Yet, by S.51(1) and (2) of the Constitution of Western State of Nigeria appeals were made to lie from all subordinate courts of the State to the High Court of the State and thence, through a hierarchy of courts under prescribed conditions, to the Supreme Court of Nigeria (see S. 117 of the Constitution of the Federation). If that was the provision for courts in Western State of Nigeria, then to regard a mere inferior tribunal as having a higher status was, having regard to the Constitution, an intolerable affront. The said S.51 reads:

“51 (1) An appeal shall lie from decisions of a subordinate court to the High Court of the Region as of right or, if it is provided by any law in force in the Region that an appeal as of right shall lie from that subordinate court to another subordinate court, an appeal shall thereafter lie to the High Court as of right in the following cases:

(a) where the matter in dispute on the appeal to the High Court is of the value of fifty pounds or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of fifty pounds or upwards, final decisions in any civil proceedings;

(b) where the ground of appeal to High Court involves questions of law alone, decisions in any criminal proceedings in which any person has been sentenced to imprisonment for a term exceeding three months or corporal punishment exceeding six strokes or a fine or forfeiture exceeding twenty-five pounds by the subordinate court from which the appeal lies to the High Court or that subordinate court has affirmed or substituted such a sentence;

(c) decisions in any civil or criminal proceedings on questions as to the interpretation of this Constitution, the Constitution of the Federation or the constitution of another Region;

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter III of the Constitution of the Federation has been contravened in relation to any person;

(e) decisions in any criminal proceedings in which any person has been sentenced to death by the subordinate court from which the appeal lies to the High Court or in which that subordinate court has affirmed a sentence of death;

(f) decisions in any other criminal proceedings before a subordinate court sitting at first instance from which no appeal lies as of right to another subordinate court; and

(g) such other cases as may be prescribed by any law in force in the Region:

Provided that no appeal shall lie from decisions of a subordinate court established under section 126 of the Constitution of the Federation to the High Court in any case in which an appeal lies as of right to the Supreme Court by virtue of any Act of Parliament enacted in pursuance of section 118 of that Constitution.

(2) An appeal shall lie from decisions of a subordinate court to the High Court of the Region with the leave of the High Court or, if it is provided by any law in force in the Region that an appeal shall lie from that subordinate court to another subordinate court, an appeal shall thereafter lie to the High Court with the leave of the High Court in the following cases:

(a) decisions in any criminal proceedings from which no appeal lies as of right to the High Court; and

(b) such other cases in which no appeal lies as of right to the High Court as may be prescribed by any law in force in the Region:

Provided that no appeal shall lie under paragraph (a) of this subsection from decisions of a subordinate court established under section 126 of the 35 Constitution of the Federation to the High Court in any case in which an appeal lies to the Supreme Court (whether as of right or with the leave of the Supreme Court) by virtue of an Act of Parliament enacted under section 118 of that Constitution.”

Certainly, S.11(5) of the Law runs counter to the intendment of the Constitution and is in conflict with it.

Again, an even more heinous provision is to be found in S.14(1) of the Law. That subsection gives the Appeal Tribunal power to give judgment in respect of a local government or community boundary or any rights or interest in or over land which will over-ride, and run roughshod of any judgment, including a judgment of the Supreme Court, the said decision of the Appeal Tribunal being final and conclusive and cannot be questioned in any court of law. Section 14(1) is only made subject to the powers of the Governor as contained in S. 15. For purposes of clarity the said S.14(1) reads:

“14 (1) Subject to the provisions of section 15, the determination of a local government or community boundary, or any rights or interests in or over land of which notice is given in accordance with section 13 shall ADEYEMI (ALAFIN OF OYO) & ORS. V. A-G. OYO STATE & ORS. 457 notwithstanding anything contained in any instrument or judgment, be final and conclusive as to that local government or those rights or interests in or over land and shall not be open to question in any court.”

It is important to pin-point and to note the words:

“notwithstanding anything contained in any instrument or judgment”

in the above section 14(1) in order to appreciate the all ambracing nature of the 10 subsection. It hardly requires to be said that it was against the 1963 Constitution for the law to give power to the Appeal Tribunal to treat any judgment of the Supreme Court of Nigeria as if it was not binding. Any such provision was inconsistent with the 1963 Constitution. Accordingly, section 14(1) of the Law, I hold, was unconstitutional, null and void. It is important to state that Dr. Ajayi later conceded that both sections 11(5) and 14(1) were unconstitutional.

The question now is: Having held that sections 11(5) and 14(1) of the Law were unconstitutional as well as any implied power to grant declarations of title to land in section 5, should the entire Law be declared unconstitutional by reason thereof I think that those sections can be, and should be, severed from the law.

The accepted test for severance in Nigeria is that laid down by Privy Council in Balewa v. Doherty (1963) 1 W.L.R. 949 at 960, namely, whether, after striking out the bad part of a legislation the balance would still have been what the Legislature would have passed had they known of the invalidity of the bad part.

It appears to me that what the makers of that Law wanted was for the Boundary Commissioner to demarcate local government boundaries and for the Constitution of the country to be obeyed. They must be deemed not to have intended to violate the Constitution of the land. If, therefore, sections 11(5) and 14(1) were struck out and the implied power under S.5(1) to grant declarations of title removed, what would be left would be the power to demarcate local government boundaries.

In the result, I hold

(1) that the declaration of title granted by Mr. M. E. Ogundare on 29th January, 1971 in exhibit E was unconstitutional, null and void;

(2) that sections 11(5) and 14(1) of the Local Government Boundaries and Communities Settlement Law, Cap. 69 of Western State of Nigeria were unconstitutional being in conflict with the 1963 Constitution of the Federation of Nigeria;

(3) that the Boundary Commissioner under the aforementioned Law had no jurisdiction to grant declarations of title to land and in so far as any part of S.5 of the said law impliedly gave power to him to make declarations of title in land by giving him power to determine proprietary interests in land, any such part of S.5 is unconstitutional, null and void.

The appellants have succeeded, in the main, in contesting the jurisdiction of the tribunal. But I have held that the tribunal was competent to demarcate the boundary between one local government area and another, and to that extent Mr. Ogundare, in demarcating the boundary between Oyo and Ogbomosho local government areas, was acting within the Constitution but in so far as he set out to determine ownership of land, he was acting outside the Constitution. The appeal has partly succeeded and partly failed but the successful part is the more substantial.

I would grant the appellants the costs of this appeal which I assess at N300.00.

NNAMANI, J.S.C.: In Suit No. HOY/39/73 the claims of the appellants who were plaintiffs there were as follows:

“(i) a declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare and dated 29th January, 1971 at Ibadan and confirmed, by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice;

(ii) an order setting aside the said decision; and

(iii) an injunction restraining the 1st defendant and all agents, officers and other servants of the 1st defendant from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs”

Pleadings were ordered, filed and exchanged. After taking mainly documentary evidence and hearing argument by counsel on both sides, Agbaje, J. (as he then was) in a well considered judgment delivered on 28/2/77 granted all the reliefs sought by the plaintiffs/appellants. He concluded that:

(i) the tribunal presided over by the Boundary Settlement Commissioner in so far as it was not a High Court of the State was not competent to adjudicate upon disputes between communities as to the boundaries between them; and

(ii) that the tribunal presided over by the Boundary Settlement Commissioner could qualify as a subordinate court of the State but the law or Edict under which it was established to determine boundaries between communities was for the reasons which he had given in the judgment ultra vires the Constitution of the Federation.

The respondents herein dissatisfied with that judgment appealed to the Federal Court of Appeal (as it then was) which by a majority judgment (Akanbi and Uche Omo JJ.CA, Dosunmu J.CA dissenting) handed down on 16th April, 1981 30 allowed the appeal, set aside the judgment of the High Court and dismissed the plaintiffs’ claims. The present appellants then appealed to this Court.

To fully appreciate the issues to be determined in this appeal it is necessary to delve a little more into the history of this dispute. In 1956 the former Western Region of Nigeria (of which the present Oyo State formed a part) enacted the Local Government Boundaries Settlement Law, Cap. 69 W.R. Law No. 7 of 1956. Under it a Boundaries Commissioner appointed pursuant to its provisions was empowered to determine the boundaries of Local Government Councils. In 1968 this Law was amended by an Edict, Local Government Boundaries Settlement (Amendment) Edict (Edict No.5 of 1968) bringing in the boundaries of communities. The Law was now titled The Local Government Boundaries And Communities Settlement Law. In effect the Boundary Commissioner could now determine proprietary interests in land as between two communities.

In Suit No.I/23/67 (admitted in these proceedings as Exh. A) the Ogbomosho Community (3rd respondent) had instituted an action against the Oyo Community (plaintiffs) claiming that the boundary between the two communities was Ipeba stream and not the Oba stream. While this suit was pending, and by Western State Legal Notice No.114 of 1969 the Executive Council of the. Western State referred the issue of the boundaries of 18 Local Governments/Communities to the Boundary Commissioner for determination. The 17th on this list was the boundary between Ogbomosho and Oyo. After proceedings to which I shall advert later in this judgment, the Boundary Commissioner on 29/1/71 determined the boundary between Ogbomosho and Oyo and declared it accordingly. He also declared the ownership of the lands contiguous to the boundary. The plaintiffs herein appealed to the Appeal Tribunal in Suit No.BSC/3N72 but lost. An attempt to obtain an order of certiorari from the High Court in Ibadan (see Suit No. M/22/1971 exhibit in these proceedings) for purposes of quashing the decision of the Boundary Commissioner also failed. It was after all this that the plaintiffs instituted the suit which has led to the appeal presently in this Court.

To return to this appeal, the appellants by leave of this Court filed two grounds of appeal which I shall set down as they bring out the main complaints of the appellants.

They were as follows:-

“(i) The decision of the majority of the Federal Court of Appeal (Akanbi JCA. and Uche Omo JCA.) to the effect that the Boundary Commissioner was competent to try the boundary dispute between Oyo and Ogbomosho Communities was wrong in law.

Particulars of Error

(a) Under the 1963 Constitution the judicial powers of the State were vested in the courts of law;

(b) the boundary dispute between Oyo and Ogbomosho Communities was a matter for determination by the exercise of the judicial powers of the State;

(c) the tribunal over which the Boundary Commissioner presided not being a court of law could not validly exercise the judicial powers of the State;

(d) accordingly, it was not competent for the Boundary Commissioner to determine the aforesaid dispute;

(e) even if (which is not conceded) the tribunal over which the Boundary Commissioner presided was a court of law the invalidity of the appeal provisions of the Law cannot be severed from the part of the Law which set up the Commission;

(f) accordingly the part of the Law which set up the Commission was also void.

(2) The majority of the Federal Court of Appeal erred in law in considering that the provisions of section 22 of the 1963 Constitution were relevant to the issues before them in the appeal and that the said provisions justified their conclusion that the tribunal over which the Boundary Commissioner presided was a properly constituted tribunal though not a court of law (per Akanbi J.CA) or was a properly constituted court of law (per Uche Omo J.CA).

Further particulars of error

Section 22 of the 1963 Constitution does not confer judicial powers on a body which is not part of the courts of judicature but only lays down standards to be observed by courts of law and other tribunals”.

In his brief of argument learned Senior Advocate of Nigeria appearing for the appellants, Chief F. R. A. Williams, set down the questions for determination in these terms:-

“(1) Whether the tribunal over which the Boundary Settlement Commissioner presided was a court of law.

(2) If the answer to Question (1) is in the negative whether the said Commissioner is competent to determine the boundary dispute between Oyo and Ogbomosho Communities.

(3) If the answer to Question (1) is in the affirmative whether the provision of the Law setting up the office and functions of the Boundary Commissioner is valid and constitutional having regard to the undoubted fact that the provisions of the said Law relating to appeals from the decisions of the Commissioner are plainly unconstitutional and void.

(4) Whether the provisions of section 22 of the 1963 Constitution are relevant to the issues raised in the judgment of Agbaje J. and if so, to what extent

Perhaps at this stage it is fair to put down the questions for determination as seen by Dr. Ajayi, learned counsel to the respondents. They were as follows:

(1) Whether there are any provisions in the Constitution of the Federation 1963 No.20 or in the Constitution of Western Nigeria set out in the Schedule to the Constitution of Western Nigeria Law, 1963, No. 26 of 1963, in force at the material time, to the effect that all justiciable issues between persons or communities in relation to title to land forming part of disputed boundaries between different communities or local government councils must be tried at first instance only by the High Court or by the Customary Courts, as courts of law “within the canopy of the Judiciary”.

(2) Whether there are any provisions in the High Court Law, Cap.44, and the Customary Courts Law, Cap.31, in force at the material time, to the effect that all justiciable issues between persons or communities in relation to title to land forming part of disputed boundaries between different communities or local government councils must be tried at first instance only by the High Court or the Customary Courts, as courts of law “within the canopy of the Judiciary”.

(3) Whether the Federal Court of Appeal was right in holding that the Boundary Settlement Commissioner is a tribunal validly established under section 22(1) of the Constitution of the Federation 1963, No. 20.

(4) Whether, in spite of the substantive provisions of s.22(1) of the Constitution of the Federation expressly conferring not only on courts of law but also on tribunals jurisdiction to determine the civil rights and obligations of persons, provided that such tribunals are established by law providing for a fair hearing within a reasonable time and are so constituted as to guarantee their independence and impartiality, the implied doctrine of the separation of powers could still be so applied in the present case as to render unconstitutional the office of the Boundary Settlement Commissioner established to determine boundary land disputes under the Local Government and Community Boundaries Settlement Law, Cap. 69 as amended by the Local Government and Community Boundaries Settlement (Amendment) Edict, 1968, No.5 of 1968.

(5) Whether in spite of the fact that there are no express provisions in the Constitution of the Federation 1963 or the Constitution of Western Nigeria 1963 (both then in force) similar to the express provisions in section 6 of the present Constitution of the Federal Republic of Nigeria 1978 No.25 in respect of the vesting of judicial powers, it could still properly be held that, section

22(1) of the 1963 Constitution notwithstanding, the jurisdiction conferred on the Boundary Settlement Commissioner by the Law and the Edict aforementioned was an unconstitutional and so invalid conferment of the exercise of judicial powers.

(6) Whether for the purposes of the present appeal there are any such differences or distinctions between Cap.69 as originally enacted and the amending Edict No.5 of 1968 as would render the former constitutional and valid but the latter unconstitutional and invalid.

(7) Whether the provisions in the Local Government and Community Boundaries Settlement Law, Cap. 69 as amended by Edict No.5 of 1968 providing for appeals from the Boundary Settlement Commissioner to the Appeal Tribunal and for no further appeal from decisions of the Appeal Tribunal are unconstitutional having regard to the fact that the Supreme Court had in the case of Chief Ademola Ogunniyi & Another v. Dr. Funsho Adaramola & Another Suit No.SC.171/1973 reported in (1973) 12 S.C.55 commented without disapproval on the provisions of the Kwara State Local Boundaries Settlement Edict, 1970, No.9 of 1970 excluding appeals to the courts and which Edict is in pari materia with Cap. 59 as amended by Edict No.5 of 1968.

(8) Whether the said provisions relating to appeals contained in Cap.69 in respect of the Boundary Settlement Commissioner and the Appeal Tribunal, whose offices were originally constituted in 1956, could, by regarding the same as “existing laws” which are required by section 155(1) of the Constitution of the Federation 1963, No.20 (repeating earlier constitutional provisions) to be construed with such modifications (whether by way of addition, alteration or omission) as may be necessary to bring them into conformity with the Constitution of the Federation and the Constitution of the Region, be adapted so as to constitute both the Boundary Commissioner and the Appeal Tribunal as “subordinate courts” within the Constitution of Western Nigeria from which there would be a constitutional right of appeal in civil matters first to the High Court and ultimately to the Supreme Court under the constitutional provisions for such appeals which appear to have been first made in 1959 by a new section 148 of the then Constitution by the amending Nigeria Constitution Order in Council, Statutory Instrument 1959/1052, published as W.R.L.N. 527 of 1959.

(9) Whether even if the said provisions relating to appeals contained in sections 10, 11, 12 and 14(1) of Cap.69 were constitutionally objectionable, they could not have been severable from the rest of Cap. 69 as amended by the Edict and comprising on the whole sections 1 to 17, so as to hold constitutional and valid what would, after such severance, remain with respect to the appointment of the Boundary Settlement Commissioner, reference of boundary disputes to him for determination, principles upon which boundaries are to be determined, duties of the Commissioner, matters to be included in his findings, his practice and procedure, etc.

In his reply brief Chief Williams rightly, and if I may say so wisely, shifted from the previous line in the pleadings that the tribunal presided over by the Boundary Commissioner could not properly determine any question as to the ownership of the property in dispute between Oyo and Ogbomosho communities because it was “not the type of tribunal contemplated by section 22 of the Constitution” to the alternative basis that “by the laws in force in the Western State only the High Court of Justice and appropriate courts of law set up under the Customary Courts Law have jurisdiction to determine questions of title to land”. Much of his oral argument in this Court was predicated on the principle of separation of powers which he submitted must be implied in the 1963 Constitution of Western Nigeria. Referring to various chapters of that Constitution, he contended that the separate chapter on the courts implied that the judicial power of the State was left to them. He urged that the principle of separation of powers should be read into the 1963 Constitution of Nigeria as modified by Decree No.1 of 1966 although he agreed that Chapter 4 of the 1963 Constitution of Western Nigeria did not expressly vest judicial powers in the courts. Referring to several provisions of that Constitution, he submitted that it was a fair inference that the judicial powers of Western Nigeria were intended to be conferred on the courts of law (i.e. the Court of Appeal, the High Court and other courts subordinate to the High Court). He placed reliance on the Privy Council case of Uyanage Vs The Queen 1967 1 A.C. 259, 2870 – 288 and to Lakanmi’s Case 1971 1 U.I.L.R. 201 at 218 at 219 where the Supreme Court referring to the 1963 Constitution of NIGERIA as modified by Decree NO.1 of 1966 (i.e. the Suspension and Modification Decree) said that –

“in the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary”.

He also relied on Hinds Vs The Queen 1977 15 A.C. 195 at 212-213 where Lord Diplock expressed the view that the concept of separation of powers as contained in the unwritten constitution of the United Kingdom formed one of the features of the Constitutions of the New Commonwealth. It is against this background that he put forward the wide proposition that under the law in force in Western Nigeria at the time all justiciable issues fell for determination only within the jurisdiction of courts within the canopy of the judiciary. Power to decide disputes between citizens, he said, is a matter for the courts. Cases, such as a land suit, determinable by the exercise of the judicial power of the State, it was further contended, are justiciable disputes. It is also against the background of the doctrine of separation of powers that the narrower proposition i.e. that only the High Court and Customary Courts in Western Nigeria could determine land disputes was put forward. If a tribunal is to decide disputes, he said, it should be a part of the judicial system. The Boundary Commission which was set up by the Executive Council and would render its report to that Council is not a court and is not competent to adjudicate in matters relating to the ownership of land. As regards section 22 of the Constitution of Nigeria No. 20 of 1963 Chief Williams submitted that it could not be the source of the judicial power which the Boundary Commissioner exercised. Section 22 of the 1963 Constitution, he said, is a fundamental right and merely prescribes the constitutional requirements applicable whenever the rights and obligations of a person fall to be determined. The provision, he said, does not confer adjudicative powers on tribunals established by law and constituted as prescribed under the section.

Finally, Chief Williams submitted that if the Boundary Commissioner was a subordinate court, then Edict No. 5 of 1968 establishing it would still be invalid because the appellate provisions therein are inconsistent with section 51 of the Constitution of Western Nigeria (W.N. No. 26 of 1963) and Section 120 of the Constitution of the Federation of Nigeria, 1963. Relying on the cases Ex parte Whybrow & Go. Vol.11 C.L.R. 54 and Balewa Vs Doherty 1963 1 W.L.R. 949, 960 he contended that those provisions cannot be severed.

See also  Chief S.B. Bakare Vs African Continental Bank Limited (1986) LLJR-SC

In his reply Dr. Ajayi learned counsel to the respondents submitted that the Boundary Commissioner was constitutionally established. Dealing first with the issue of separation of powers, he contended that that doctrine was not applicable in the instant appeal. Both in the 1963 Constitution of Western Nigeria and the 1963 Constitution of Nigeria there is no express vesting of judicial power of the courts.

Relying on Adegbenro Vs Akintola 1963 A.G. 614, 631 he argued that an implied provision cannot be used to override express provisions. It was also his view that Lakanmi’s case (supra) should be limited to its own facts since it dealt with legislative judgments. He also referred to the case of Kariapper Vs Wijesinha 1968 A.C. 717 in which the law in issue was upheld as valid and constitutional in spite of the doctrine of separation of powers. In his brief of argument, he submitted that the decisions relied on by the appellants on separation of powers must be treated with caution. This is because the doctrine of separation of powers is applied in the United States and Australia pursuant to the express vesting of judicial power on the courts in their Constitutions. More important, he said, none of the Constitution of the United Kingdom, U.S.A., Canada, Australia, Sri Lanka or Jamaica has any exact counterpart to section 22 of the Constitution of the Federation, 1963. As regards the contention that following the law in force in Western Nigeria at the time all justiciable issues must be determined by courts within the canopy of the judiciary, he thought this proposition was too wide and referred to justiciable issues under the Chiefs Law Cap. 19, Laws of Western Nigeria, 1963, as well as to other tribunals established to determine several issues as between citizens. With regard to the contention that only the High Court and Customary Courts in Western Nigeria could adjudicate on land matters, Dr. Ajayi pointed out that the jurisdiction given to these courts in land matters was by statute and not under the Constitution. There was nothing exclusive about it therefore and the legislature could therefore, as it did in Edict No.5 of 1968, vest that jurisdiction though only to a limited extent, on the Boundary Commissioner.

He submitted that the Boundary Commissioner falls squarely within section 22(1) of the 1963 Constitution of the Federation. He said that what was established was a judicial tribunal. Not being a court, the appellate provisions in Cap. 69 of 1959 as amended by Edict No.5 of 1968 could not be impugned. He conceded, however, that being an inferior tribunal in relation to the High Court, it would be subject to the prerogative writs of the High Court. In that case he conceded that section 14(1) of Cap 69 as amended by Edict No.5 of 1968 could be severed. Arguing in the alternative, he submitted that if the Boundary Commissioner was a subordinate court then section 11(5) of Cap.69 as amended by Edict No.5 of 1968 would be inconsistent with section 51 of the Constitution of Western Nigeria 1963. It could, however, be severed he submitted.

It seems to me that I ought to start with a consideration of the doctrine of separation of powers on which the appellants’ counsel predicated a lot of his argument. If one agreed that the doctrine was applicable here, then the contention that all justiciable issues must be tried by courts of law within the canopy of the judiciary must be accepted and Cap.69 as amended by Edict No. 5 of 1968 which gave the Boundary Commissioner powers to settle justiciable issues – here land dispute – would be held unconstitutional. I would therefore immediately agree with Akanbi and Uche Omo JJCA. that that doctrine is not applicable in this appeal. It is only being imported into the 1963 Constitution of the Federation of Nigeria. Although of the 9 chapters into which the Constitution of Western Nigeria was divided Chapter 2 was captioned “The Legislature”, Chapter 3 “Executive Powers”, and Chapter 4 “Courts”, it is nevertheless the case that there is no express vesting of the judicial powers of the State on the courts. The doctrine of separation of powers can only be by implication and inference. This implied provision cannot be used in overriding express provisions in the Constitution which in the instant case is section 22 of the 1963 Constitution to be dealt with hereunder. In this connection it is apposite to recollect the views of the Privy Council in the celebrated case of Adegbenro Vs Akintola 1963 A.C. 614 at 631. Their Lordships there said:

“The second observation is perhaps only another way of making the same point. It is true that the Western Nigeria Constitution, allowance made for the federal structure, does embody much of the constitutional practice and principle of the United Kingdom. That appears from a study of its terms. There are identifiable difference of scheme to be found in certain sections but no one it seems questions the general similarity or the origin of many of its provisions. But accepting that, it must be remembered that as Lord Bryce once said, the British Constitution ‘works by a body of understandings which no writer can formulate whereas the Constitution of Western Nigeria is contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and while it may be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced or to study decisions or the Constitutions of Australia or the United Stated where federal issues are involved, it is in the end the wording of the Constitution itself that is to be interpreted and applied and this wording can never be over ridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution”

(Italics mine)

(See also Bronik Motors Ltd. Vs Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296, 326.) while on other Constitutions, I think I would agree with Dr. Ajayi that on this principle of separation of powers one has to be careful. I would, with all due respect, say that the many authorities which Chief Williams urged on us e.g. Hinds Vs The Queen (supra), Uyanage Vs The Queen (Supra), Waterside Workers Federation of Australia Vs J.W. Alexander Ltd. (1918) 25 C.L.R. 434, 462 – 464 and 463 – 465; Attorney-General for Australia Vs The Queen and Boiler Makers Society of Australia and Ors. (1957) A.C. 258, 309-310 are not really helpful. Both in the United States of America and Australia (See section 71 of the Constitution of the Commonwealth of Australia) there is an express vesting of the judicial power of the State in the courts. Perhaps more telling is the fact that there is nothing approximating to section 22 of the 1963 Constitution of the Federation in the Constitutions of the United Kingdom, United States of America, Canada, Australia, Sri Lanka or Jamaica. Besides, looking closely at the 1963 Constitution of the Federation as modified by the Modification and Suspension Decree No.1 of 1966 it is not easy to discern any separation of powers in its express terms. There is not only section 22 of the Constitution. Section 3(3) of Decree No.1 provided as follows:

“Subject to subsection (2) above and to the Constitution of the Federation, the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region” While section 7(4) provided as follows:

“Subject to subsection 5 below, all executive functions which immediately before 16th January, 1966 were vested in or exercisable by the Governor or any officer or authority of a Region by virtue of section 86 and 99 of the Constitution of the Federation shall be treated as having been delegated under subsection (3) above to the Military Governor of that Region as from 17th January, 1966”.

In effect both executive and legislative powers were concentrated in the hands of the Military Governor. As at 29th January, 1971 when the Boundary Commissioner gave his decision, it is also clear that the legislature of Western Nigeria had exercised its powers and vested in bodies other than the courts power to determine justicible issues e.g. Edict No.5 of 1968 now in dispute and certain matters under the Chiefs Law, Cap 19 Laws of Western Nigeria.

It is to be observed that the jurisdiction which the High Court of Western Nigeria and the Customary Courts of that Region have over land matters was not given by the Constitution of Western Nigeria in recognition of any doctrine of separation of powers. It was rather a creation of statute. Section 8 in Part III of the High Court Law of Western Nigeria, Cap 44 Laws of Western Nigeria, 1959, provides as follows:

“8. To the extent that such jurisdiction may be conferred by the Regional Legislature, the High Court shall be a superior court of record, and in addition to any other jurisdiction conferred by this or any other Law or Ordinance shall within the limits and subject to the provisions of this Law, possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England”.

By section 9 thereof the jurisdiction so vested shall include Her Majesty’s civil jurisdiction. The proviso to section 9 states:

“provided that, except in so far as the Governor may by Order in Council otherwise direct and except in suits transferred to the High Court under the provisions of section 28 of the Native Courts Ordinance, the High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death”.

It will be readily observed that the power of the High Court in land matters is not exclusive. Section 18(2) of the Customary Courts Law of Western Nigeria, Cap. 31, Laws of Western Nigeria, 1959, provides as follows:

“18 (2) The jurisdiction and powers in civil causes and matters of each grade of customary court shall be that set out in the Second Schedule”.

The 2nd Schedule to the Customary Courts (Amendment) Law No.34 of 1959 gives Grade A Customary Courts unlimited jurisdiction in all civil causes and matters arising under the law to be administered by the Courts, while in Part II section A of the same Schedule, unlimited jurisdiction in land matters is given to Grade B Customary Courts. Grades C and D Customary Courts have more limited jurisdiction in land matters. Looking at both Cap. 44 and Cap. 31 Laws of Western Nigeria, 1959, which were in force at the time material to this case, there is nothing therein to the effect that justiciable issues such as land disputes must be tried in the High Court or the Customary Courts. It is my view that the Legislature of Western Nigeria had even in the Local Government Boundaries Settlement Law Cap. 69 of 1959 given the Boundaries Commissioner power to determine proprietary interests. In section 5(3) thereof “local area” is defined as “the area of any village, village group, clan or town or the area of a Customary Court or of a district” while proprietary interests are defined thus:

“proprietary interests in relation to the area of a village, village group, clan or town means the right of disposition of interests in land of any person or authority on behalf of the inhabitants of such area, and in relation to the area of a customary court, or a district, means the right of disposition of interests in land of any person or authority on behalf of the natives of any area of jurisdiction of a chief, village, village group, clan, town or other area traditionally associated with that customary court or district area”.

Admittedly the 1956 Law was solely concerned with the determination of boundaries of local government councils, but I share the view of Akanbi JCA. that this exercise can hardly be carried out without dealing with the interests of individuals in land. The learned justice of appeal said:

“It is my considered view that there is nothing offensive introduced by Edict No.5 of 1968 into the principal Law which was not there before the amendment. I agree therefore with Dr. Ajayi that any demarcation of boundaries between one local government council and another would naturally affect the civil rights of the persons inhabiting the area and would in one way or the other give rise to some legal consequences”.

It is agreed by all sides that the amendment to the principal law effected by Edict No.5 of 1968 (i.e, the introduction of the determination of the boundaries of communities) clearly gave powers to the Boundaries Commissioner to determine questions relating to the ownership of land. Agbaje J. (as he then was) even came to the conclusion where he said:-

“it is my view that the law does give the Boundary Commissioner power to determine questions relating to the ownership of land in any dispute between any two communities as to their boundaries”.

It must be quickly added that this power is only limited to land disputes in areas where there is a boundary dispute. It is not in respect of land disputes throughout the Region. Having rejected the contention that the doctrine of separation of powers is applicable here with the result that the powers granted to the Boundary Commissioner by Cap.69 as amended by Edict No.5 of 1968 would be unconstitutional as being in breach of that doctrine, one still has to determine the constitutional base of the body over which he presides. It is my view, and in this I agree with Dr. Ajayi, that the Boundary Commissioner falls squarely within section 25 22(1) of the Constitution of the Federation No.20 of 1963. That section reads –

“In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality” (Italics mine).

Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine –

(a) questions arising in the administration of a law that affect or may affect 35 the civil rights and obligations of any person; or

(b) Chieftaincy questions”

The use of the term or other tribunal to my mind suggests an intention to vest the power to determine questions relating to civil rights of a person not only in courts but in another institution similar to it. The exclusion of tribunal from subsection 2 of section 22 of the Constitution indicates that in respect of criminal matters power was vested only in the courts. Indeed to hold that all justiclable issues must necessarily go to courts within the canopy of the judiciary would mean that several tribunals often set up to deal with matters which sometimes are not even suitable for adjudication by the regular courts would be unconstitutional e.g. the National Industrial Court, compensation tribunals etc.

From the provisions of the Local Government Boundaries Settlement Law as amended by Edict No.5 of 1968 dealing with the appointment of the Boundaries Commissioner, his qualification, the procedure to be adopted by the Commission, the oath of office of the Boundary Commissioner etc., I am of the view that the body over which the Boundaries Commissioner is to preside is a judicial tribunal within the contemplation of section 22 of the 1963 Constitution of the Federation of Nigeria.

The Boundary Commissioner presides over a tribunal duly established by law i.e. The Local Government Boundaries Settlement Law as amended by the Local Government Boundaries Settlement Edict No.5 1968. Although the position of Boundary Commissioner is a post in the public service, and although Subsection 2 of section 3 of Cap. 69 provides that is his duty to enquire into and determine such boundaries as the Governor-in-Council may by Order made under section 4 refer to him for determination, his independence is assured by the fact that his decisions could not be altered by the Executive. Section 13(1) (b) of Cap. 69 as amended by Edict No.5 of 1969 provides that –

(a) The Commissioner shall, as soon as practicable, cause the boundaries finally determined in accordance with the foregoing provisions of this law to be demarcated on the ground and a cadastral survey plan thereof prepared’

(b) the Governor-in-Council shall publish notice in the Gazette that the boundaries referred to in the findings have been determined and of the deposit of the documents aforesaid”

As to his impartiality, the Boundary Commissioner is a legal practitioner of not less than 10 years post call experience, a similar qualification for appointment as a High Court judge. In the instant appeal, Mr. Ogundare (as he then was) was so qualified. Then to further ensure his impartiality the Commissioner is to subscribe to an oath on assumption of duty similar to the judicial oath. Section 3A introduced by Edict No.5 of 1968 specifically provides that

“a person appointed to the office of Boundary Settlement Commissioner shall, as soon as may be after his appointment, take and subscribe before the Military Governor, or such other person as the Military Governor may appoint, the oath as in the form set out in the first schedule hereto”.

The oath is in these terms

“I, ‘E2’80’a6do swear that I will well and truly serve the Western State of Nigeria in the office of Boundary Settlement Commissioner and will faithfully and impartially and to the best of my ability discharge the duties devolving upon me by virtue of my appointment and will do right according to law to all persons that may come before me without fear or favour, affection or ill’97will. So help me God”.

The impartiality is further guaranteed by providing that the procedure adopted in any enquiry shall be similar to that of the High Court. Section 8(1)(b) of Cap. 69 as amended by the Edict empowers the Boundary Commissioner to “exercise the powers of a judge of the High Court in his civil jurisdiction with respect to the administration of oaths and affirmations, the summoning, attendance and examination of witnesses and the production of documents”.

Subsections (2), (3) and (4) of section 8 Cap.69 as amended by the Edict make further provisions which make the procedure to be followed by the Boundary Commissioner certainly similar to the High Court. Section 6 makes provisions to ensure a fair hearing before the Commissioner. For instance, subsection (b) of section 6 enjoins the Commissioner to “hear all such evidence relevant to the enquiry as may be offered by any person” while subsection (c) of section 6 allows the parties to be represented by counsel.

Although learned counsel to the appellants indicated in his brief that he was no more emphasising the complaint of alleged inconsistency between the Tribunal set up under Cap.69 as amended by Edict No.5 of 1968 and section 22 of the 1963 Constitution of Nigeria which formed the main plank of their case in the lower court, it is pertinent to mention that from all the facts in the instant appeal as well as from the proceedings of the tribunal presided over by the Boundary Commissioner (i.e. exhibit E), I find nothing that is in conflict. It is also my view that there are no provisions of Edict No.5 of 1968 which are in conflict with section 22 of the 1963 Constitution. It is worth mentioning that in the instant matter the learned trial judge found that the Boundary Commissioner conducted a fair enquiry. Neither party has challenged this finding.

Two matters remain for consideration. It was contended by the appellants that some provisions of the Local Government Boundaries Settlement Law as amended by Edict No.5 are inconsistent with the Constitution of the Federation, 1963 or the Constitution of Western Nigeria, 1963, and as they are not severable the Edict is invalid. The sections particularly attacked were 10(1),11(5) and 14(1). The relevant provisions are as follows:

“10 (1). For the purpose of hearing and determining appeals under this law (i.e. from the decisions of the Boundary Commissioner) there shall be an appeal tribunal which shall consist of the Chief Justice and two other judges of the High Court.

11 (5) No appeal shall lie from the decision of the appeal tribunal

14 (1) Subject to the provisions of section 15, the determination of a local government or community boundary, or any rights or interests in or over land of which notice is given in accordance with section 13 shall, notwithstanding anything contained in any instrument or judgment, be final and conclusive as to that local government or those rights or interests in or over land and shall not be open to question in any court.

(Italics mine)

Having held that the tribunal presided over by the Boundary Commissioner falls within section 22 of the 1963 Constitution of the Federation, I do not see how the appellate provisions contained in sections 10(1) and 11(5) of Cap. 69 can be impugned. It is surely within the competence of the Legislature of Western Nigeria in enacting Edict No. 5 of 1968 and Cap. 69 of 1959 to make the provisions for appeal which it has made. Section 51 of the Constitution of Western Nigeria, No.26 of 1963, provides that an appeal shall lie from decisions of a subordinate court to the High Court of the Region as of right’E2’80’a6This is inapplicable as in my judgment the Boundary Commissioner is not a subordinate court. Section 14(1) of the Law is in a different category. The italized portion which empowers the Boundary Commissioner to override judgments including judgments of the Supreme Court is clearly unconstitutional. Section 120 of the unsuspended portion of the 1963 Constitution of the Federation provides that no appeal shall lie to any other body or person from any determination of the Supreme Court. I think that the portion of section 14(1) which seeks to make the determination of a local government boundary or any rights or interest in land final, conclusive and immune from question in any court has not taken congnisance of the status of the tribunal presided over by the Boundary Commissioner as well as of the appeal tribunal set up under section 10 of Cap. 69 as amended by the Edict. They are both inferior tribunals to the High Court by means of its prerogative writs. Under section 48(3) of the Constitution of Western Nigeria 1963, the High Court is established as a superior court of record which shall, save as otherwise provided by any law in force in the Region, have all the powers of such a court. The High Court can therefore by its order of certiorari bring in the proceedings of the tribunal presided over by the Boundary Commissioner for purposes of quashing same. That was indeed tried in this suit (See Exh.D). To that extent too the portion referred to above is unconstitutional. It is nevertheless my view that section 14(1) of the Edict can be severed without substantially altering what the legislature intended to achieve in enacting Edict No. 5 of 1968.

In Ex parte Whybrow and Co. (1910 – 11) 11 C.L.R. 1 at pp.27, 34-35 and 54- 55 Barton J. and Isaacs J. put their test of severability which I find more helpful.

Barton J. said –

“The true principle seems to me to be this, that when one leaves out of consideration any provision held invalid, there must remain a scheme of legislation not radically different, equally consistent with itself and retaining its workable character so far as it had one, dealing effectively even if not comprehensively, with so much of the subject matter as is within the legislative power”

For his part Isaacs J. said that –

“where the two sets of provisions are not, so to speak, physically blended, but are contained in separate words, phrases, sentences, clauses, or even parts of an Act, further considerations are necessary to determine whether, though physically separate, they have been made legally inseperable. In other words whether Parliament intended them all as necessary parts of the one machine, always assisting and modifying or controlling each other in every operation, or whether they were enacted as independent instruments for possible use, either separately or in conjunction, according to the exigencies of the task”.

Applying these tests to the legislation in the instant appeal, even with the removal of section 14(1) of Cap.69 as amended by Edict NO.5 of 1968 it is my view that the scheme of legislation is not radically different and still remains. The legislation establishes a tribunal and makes provision among other things for a terminal appeal to an Appeal Tribunal from its decisions. I do not see that this scheme is in any way upset by the severance of a part of the legislation which sought to override judgments of the Supreme Court and to hold immune from the prerogative writs of the High Court tribunals which are undoubtedly inferior ones to the High Court.

I would wish finally to advert to the submission of learned counsel to the respondents, Dr. Ajayi, that in any case this Court now lacks the jurisdiction to declare the Edict in issue i.e. Edict NO.5 of 1968 invalid. This he contends is the effect of section 6(6) (d) of the Constitution of the Federal Republic of Nigeria 1979 45 as amended by the Constitution (Suspension and Modification) Decree No.1 of 1984. That section provides that

“The judicial power 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”.

The short answer to this contention is that while this Court would not challenge the legal capacity or power of the authorities to make an Edict or Decree it has always declared its undoubted power to inquire into whether an Edict is inconsistent with the provisions of the Constitution of the Federation. The most recent pronouncement on this issue by this Court is in Peenok Investment Limited Vs Hotel Presidential Limited (1982) 12 S.C. 1 at pp.31 and 137. See also University of Ibadan Vs Adamolekun (1967) 1 All N.L.A. 213 at 224; F.S. Uwaifo Vs Attorney General of Bendel State & 4 Ors. (1982) 7 S.C. 124 at 281. From the foregoing, I have arrived at the conclusion that except for the severed section 14(1) nothing in the Local Government Boundaries Settlement Law as amended by Edict No.5 of 1968 which set up the tribunal over which the Boundary Settlement Commissioner presided is inconsistent with either the Constitution of the Federation, No.20 of 1963, or the Constitution of Western Nigeria, No.26 of 1963. The legislation is therefore valid and constitutional. The tribunal thus established is traceable to powers granted by section 22 of the Constitution of the Federation 1963. The Boundary Settlement Commissioner was in my view competent having regard to the powers granted him by Cap.69 as amended by Edict No.5 of 1968 to decide questions of ownership of land which arose in the course of determining the boundaries of the two communities involved in this suit.

In these circumstances the appeal must fail and I hereby dismiss it. I award costs of N300 against the appellants and in favour of the respondents.

UWAIS, J.S.C. In December, 1973 the plaintiffs (now appellants) brought action against the defendants (now respondents) in the Oyo State High Court, Ibadan in which they claimed the following reliefs:

“(i) a declaration that the judgment given in favour of the 2nd and 3rd defendants by Mr. M. E. Ogundare and dated 29th January, 1971 at Ibadan and confirmed by the judgment of the Appeal Tribunal dated 12th September, 1973 is illegal, unconstitutional and/or contrary to natural justice; (ii) an order setting aside the said decision; and

(iii) an injunction restraining the 1st defendant and all agents or officers and other servants of the 1st defendant from giving effect to the said decision or otherwise acting thereon to the prejudice of the plaintiffs.”

Pleadings were filed and exchanged.

There was enacted for the former Western Region of Nigeria a law known as the Local Government Boundaries Settlement Law, Cap.69 (Volume IV of the Laws of the Western Region of Nigeria 1959). In 1968, the Law was amended by the Local Government Boundaries Settlement (Amendment) Edict, 1968 No.5 of 1968 and its title came to be the Local Government and Community Boundaries Settlement Law, Cap. 69.

In 1969, by the Local Government and Community Boundaries (Determination) Order, 1969 Western State Legal Notice No. 114 of 1969, the Executive Council of the State referred to the Boundary Settlement Commissioner for determination the boundary between Oyo Southern District and Ogbomosho District Council. The Commissioner enquired into the dispute and subsequently delivered his findings in which he determined the boundary between the two Districts. Part of the findings read:

“The boundary above described is particularly described and delineated on Plan No.OGB.C 7/0 – OY.C.1 and thereon edged YELLOW. All land to the East of this boundary line is hereby declared to belong to the Ogbomosho Community and all land to the west of the line is declared to belong to Oyo Community.”

The Oyo Community appealed from the Commissioner’s findings to the Appeal 5 Tribunal established by virtue of the provisions of section 10 of the Local Government and Community Boundaries Settlement Law. The appeal was dismissed by the Appeal Tribunal. It was sequel to the dismissal that the plaintiffs brought the aforementioned action in the Oyo State High Court.

Paragraph 9 of the plaintiffs’ statement of claim on which issue was joined contained the gravamen of their claim. It reads as follows:

“9. The plaintiffs will contend at the trial of this action that the Boundary Commissioner has no jurisdiction to enter into the enquiry aforesaid or to make any finding or determination as aforesaid for the following, among other reasons:-

(i) The Order published as W.S.L.N. 114 of 1969 does not indicate clearly or at all the matter which was referred to the Commissioner.

(ii) If what was referred to the Commissioner for determination was the boundary between Oyo Southern District Council on the one hand and Ogbomosho District Council on the other, then he would have had no power to make any determination because there was no dispute in existence as to such boundary.

(iii) If what was referred or purported to have been referred to the Commissioner was the boundary between the land owned by the Oyo Community on the one hand and the land owned by the Ogbomosho Community on the other, then he would have had no power to make any determination because it is apparent from his own findings that whilst a number of individual families in Ogbomosho lay claim to pieces of land in Oyo Division there was no allegation that Ogbomosho Community as such lay claim to any such land.

(iv) (a) The Local Government and Communities Boundary Settlement Law (hereinafter referred to as lithe Law”) does not give the Commissioner jurisdiction to determine any question relating to the ownership of 35 land or interest in land.

(b) Alternatively, if the Law gives him any jurisdiction to determine such question then the Law is unconstitutional and void to the extent that it does so.

Particulars of Invalidity of the Law

(i) The Tribunal presided over by the Commissioner is not the type of tribunal contemplated by section 22 of the Constitution of the Federation (1963) and accordingly it is not capable of determining any question as to the ownership of property.

(ii) The Law (sections 5 and 14) envisages that a determination by the Commissioner shall confer a right in rem capable of overriding any previous decision of a court of law without ensuring a right of hearing to all persons that may be affected thereby contravening section 22 of the Constitution of the Federation, (1963).

(iii) The provisions of sections 5 and 14 of the Law are unconstitutional and void for inconsistency with section 22 of the Constitution of the Federation (1963).

(iv) Enforcement of the determination of the tribunal would be a contravention of the provisions of section 31 of the Constitution of the Federation (1963).

(v) By the Laws in the Western State only the High Court of Justice and appropriate courts of law set up under the Customary Courts Law have jurisdiction to determine questions of title to land.”

The learned trial judge considered all the points raised in paragraph 9(i), (ii) and (iii) and found that there was no merit in them. The main issue before him was really contained in paragraph 9 (iv) (a) and (b) of the statement of claim. In considering paragraph 9(iv) (a) thereof the learned trial judge made reference to section 5 of the Local Government and Community Boundaries Settlement Law, Cap. 69 and came to the conclusion that the Law did give the Boundary Settlement Commissioner power to determine any question relating to the ownership of land or interest in land in any dispute between any two communities as to their boundaries.

In dealing with paragraph 9 (iv) (b) the learned trial judge held that the interests of a community and those of the members of the community are inter-woven and as such they cannot be separated. After reviewing the authorities cited to him by counsel he accepted that the principle of separation of powers amongst the three organs of government in a Federation was applicable to the provisions of the Constitution of the Federation of Nigeria, 1963. He therefore held that all justiciable issues between citizens must be tried by courts of law established under the Constitution. The learned trial judge next considered the provisions of section 48(1),51 (1) and 52(1) of the Constitution of Western Nigeria, 1963,No.26 of 1963. He observed that land dispute between citizens must be settled by either the High Court of the State or subordinate courts which were created by virtue of the provisions of section 126 of the Constitution of the Federal Republic of Nigeria, 1963.

He then concluded thus:

“(1) that the tribunal presided over by the Boundary Commissioner in so far as it is not a High Court of the State is not competent to adjudicate upon dispute (sic) between communities as to the boundaries between them;

(2) that the tribunal presided over by the Boundary Commissioner can qualify as a subordinate court of the State but the Law or Edict under which it was established to determine the boundaries between communities is for the reasons I have given above in this judgment ultra vires the Constitution of Federation of Nigeria, (1963).”

He therefore granted all the remedies sought by the plaintiffs. The defendants appealed against the decision to the Court of Appeal. By a majority decision the appeal was allowed. The decision of the trial High Court was set-aside and the plaintiffs’ claim was dismissed. Although the majority (Akanbi and Uche Omo JJ.CA) in separate judgments arrived at the same conclusion, namely that the appeal should be dismissed, their reasons were at variance. While Akanbi, J.CA held that the Boundary Commissioner and the Appeal Tribunal under the Local Government and Community Boundaries Settlement Law, Cap. 69 were not courts of Law, Uche Omo J.CA said they were. And on whether a tribunal which is not a court of law can try justiciable issues such as land disputes, Akanbi, J.CA said it could but Uche Omo J.CA held that they could not.

The present appeal is brought by the plaintiffs against the decision of the Court of Appeal on two grounds, namely –

“1. The decision of the majority of the Federal Court of Appeal (now simply Court of Appeal) (Akanbi J.CA and Uche Omo J.CA) to the effect that the Boundary Commissioner was competent to try the boundary dispute between Oyo and Ogbomosho Communities was wrong in law.

Particulars of Error

(a) Under the 1963 Constitution the judicial powers of the State were vested in the courts of law;

(b) The boundary dispute between Oyo and Ogbomosho Communities was a matter for determination by the exercise of the judicial powers of the State;

(c) The tribunal over which the Boundary Commissioner presided not being a court of law could not validly exercise the judicial powers of the State.

(d) Accordingly it was not competent for the Boundary Commissioner to determine the aforesaid dispute;

(e) Even if (which is not conceded) the tribunal over which the Boundary Commissioner presided was a court of law the invalidity of the appeal provisions of the Law cannot be severed from the part of the Law which set up the Commission;

(f) Accordingly the part of the Law which set up the Commission was also void.

  1. The majority of the Federal Court of Appeal erred in law in considering that the provisions of section 22 of the 1963 Constitution were relevant to the issues before them in the appeal and that the said provisions justified their conclusion that the tribunal over which the Boundary Commission presided was a properly constituted tribunal though not a court of law (per Akanbi J.CA) or was a properly constituted court of law (Uche Omo J.CA)

Further Particulars of Error

Section 22 of the 1963 Constitution does not confer judicial powers on a body which is not part of the Courts of judicature but only lays down standards to be observed by courts of law and other tribunals.

Extensive argument was presented by learned counsel for the plaintiffs and the 35 respondents in their written briefs as well as their addresses. Their industry has been a source of great help to me. I think they both deserve our commendation.

Separation of Powers

The doctrine of separation of powers means that neither the legislature, the executive, nor the judiciary should exercise the whole or part of another’s power. It was held by this court in Lakanmi & Anor. v The Attorney-General of Western State & Ors. (1974) 4 E.C.S.L.R. 713 at p.731; (1971) 1 U.I.L.R. 201 at p.218 that the structure of the Constitution of the Federation of Nigeria, 1963, (hereinafter referred to as lithe 1963 Constitution”) as suspended and modified by the Constitution (Suspension and Modification) Act, 1966 (No. 1 of 1966) was based on the separation of powers; and in the distribution of powers amongst the organs of government the courts were vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State.

Now, section 22 subsection (1) of the 1963 Constitution provided thus –

“In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Chief Williams learned Senior Advocate for the appellants relying on the judgments of Akanbi and Dosunmu JJ.C.A. in the Court of Appeal submitted that the Boundary Commissioner and the Appeal Tribunal under the Local Government and Community Boundaries Settlement Law, Cap. 69 (hereinafter referred to as “Cap. 69”) were not courts of law. He then proceeded to examine the powers of the Boundary Commissioner under section 5 of Cap. 69. The section as relevant reads as follows –

“5 (1) Where the boundary or boundaries to be determined are described…… in any law or other instrument or document relating to the communities concerned by reference to any boundary of a local area or by reference to any boundary of the area of jurisdiction of a Chief the Commissioner shall, subject to subsection (2) of this section, settle as the boundary so described –

(a) in the case of a local area, the line which he finds to be the limit of the proprietary interests of that area;

(b) in the case of the area of jurisdiction of a chief, the line which he finds to be the limit of the jurisdictional interests of that Chief.

(2) Notwithstanding the provisions of subsection (1) of this section, the Commissioner may, if he considers that injustice or grave administrative inconvenience would be caused if the boundary between two councilor community areas, at any part of it, were fixed in accordance with the provisions of that subsection, settle as the boundary such other line as appears to him to be suitable having regard to the justice of the case, administrative convenience and the proprietary interests of the areas or the jurisdictional interests by reference to which the boundary is defined.

(3) Learned Senior Advocate argued that the Boundary Commissioner is required under the provisions of section 5 subsection (1) above to apply objective criteria in the determination of boundary between communities; but what the Commissioner did in the present case was to adjudicate in the boundary dispute between Oyo and Ogbomosho Communities by applying pre-existing rules of law regarding the ownership of land. In other words the Commissioner determined the justiciable controversy between the Communities as a court of law would have done. He therefore submitted that the Commissioner was not competent to act the way he did because the tribunal over which he presided was not a court of law. It was argued further that the Commissioner’s obligation to apply the objective standards laid down in section 5(1) is purely discretionary since other considerations as provided under subsection (2) of section 5 might persuade him to reach a different decision. It was said that the adjudicative power conferred on the Commissioner by section 5(2) was not part of the judicial powers of the State. Thus the combined effect of section 5 subsections (1) and (2) is to vest judicial and non- judicial powers in the Commissioner. And this by itself is sufficient on the authority of Attorney-General for Australia v The Queen & Anor. (1957) A.C. 288 at p.313 to invalidate the judicial powers conferred on the Commissioner. It was therefore submitted that the Boundary Commission was not competent to adjudicate in a law suit as it had purported to have done in the present case.

What in fact the Commissioner did, it was argued, was to usurp the jurisdiction of the High Court.

For his part Dr. Ajayi, learned counsel for the 2nd and 3rd respondents, (whose argument throughout this appeal was adopted by Mr. Jegede, learned counsel for the 1st respondent) contended that where there is no express provision in a constitution for the separation of powers, the doctrine of the separation of powers can only apply by implication. However what is expressly provided for cannot be implied. It follows therefore, he argued, that on the authority of Adegbenro v Akintola, (1963) A.C. 614 at p.631 the doctrine of separation of powers cannot be properly applied to declare invalid the jurisdiction of a tribunal which satisfied the express provision of section 22 subsection (1) of the 1963 Constitution. It was further argued by him that it would be too wide a proposition to say that by the doctrine of separation of powers all justiciable issues in the Western State fell within the jurisdiction of courts of law which only came ”within the canopy of the (State) to Judiciary.” Learned counsel drew our attention to the provisions of the Chiefs Law, Cap. 19 of the Laws of Western Region of Nigeria 1959 which conferred on the Governor-in-Council the power to appoint Chiefs and contended that such decision, though a justiciable issue, is final and could not be questioned in any court of law. This is notwithstanding the Governor-in-Council was acting in a quasi judicial capacity or even in a judicial capacity – R. v. Governor-in-Council exparte Adenaiya. (1961) W.N.L.R. 31 and Lagunju v Olubadan-in-Council, (1952) 12, WACA 406. Reference was also made by counsel to the National Industrial Court, created by the Trade Dispute Act, 1976, which exercised jurisdiction, by virtue of section thereof, on justiciable issues despite the fact that it is not a court of law. Learned counsel said the original jurisdiction of the Western State High Court in land matters was given to it by virtue of sections 8 and 9 of the High Court Law Cap. 44 (Laws of Western Region of Nigeria, 1959) and not the Constitution of Western Nigeria. It was therefore submitted that at all material time the High Court did not have exclusive original jurisdiction in justiciable issues relating to land because part of such jurisdiction was, by virtue of the proviso to section 9 subsection (1) of the High Court, Law, Cap. 44 given to Customary Courts.

Although Lankanmi’s case (supra) decided that there was separation of powers under the 1963 Constitution as amended by the Constitution (Suspension and Modification) Act, 1966 (No.1 of 1966) the separation was not as complete or watertight as it is in the United States. For instance under the 1963 Constitution the President, the Prime Minister and the Federal Ministers who exercised executive powers (see SS.84(1), 87(1), (2) and (3) of the 1963 Constitution) were also members of the legislature by virtue of the provisions of SS.41 and 48(1) of the 1963 Constitution which state:-

“41. There shall be a Parliament of the Federation, which shall consist of the President, a Senate and a House of Representatives.”

“48 (1) A Minister of the Government of the Federation may attend and take part in the proceedings of either House of Parliament notwithstanding that he is not a member of that House.”

The separation became further blurred by the promulgation of the Constitution (Suspension and Modification) Act, 1966 (No.1 of 1966) which vested in the Head of the Federal Military Government and Commander-in-Chief of the Armed Forces both the Executive and Legislative powers of the Federation – see sections 4(1) and 7(1) of the Act which provide –

“4 (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.”

“7 (1) The executive authority of the Federal Republic of Nigeria shall be vested in the Head of the Federal Military Government and may be exercised by him either directly or through persons or authorities subordinate to him.”

In view of the foregoing I think it would be erroneous to say that the doctrine of separation of powers, as it applies in the United States, was also applicable to Nigeria under the 1963 Constitution as suspended and modified by Act. No.1 of 1966. Throughout the period material to this case there had been no clear cut separation of powers between the executive and the legislature. Therefore in determining the powers of the judiciary with particular reference to the present case think one has to examine the nature of such powers against the background of the relevant provisions of the 1963 Constitution as well as the Constitution of Western Nigeria, 1963 (W.N. No.26 of 1963).

Now section 126(a) of the 1963 Constitution provides –

“126 Parliament may establish courts of law for the Federation in addition to the Supreme Court;

Provided that nothing in this section shall –

(a) preclude the legislature of a Region from establishing courts of law for that Region; or

(b) But the High Court, and the subordinate courts (viz Magistrates and Customary Courts) of Western Nigeria were not created under these provisions because the courts had been in existence before the enactment of the 1963 Constitution (See Caps. 31, 44 and 74 of the Laws of Western Region of Nigeria, 1959). The same is true of the Boundary Settlement Commission Appeal Tribunal. While the High Court was given a new lease of life by section 48 subsection (1) of the Constitution of Western Nigeria, 1963, the subordinate courts, the Boundary Settlement commission and the Appeal Tribunal continued to exist by virtue of the provisions of section 156 subsection (1) of the 1963 Constitution. The section reads as follows:-

“156 (1) All existing law, that is to say, all law which, whether being a rule of law or provision of an Act of Parliament or of a law made by the legislature of a Region or of any other enactment or instrument whatsoever, is in force immediately before the date of the commencement of this Constitution or has been passed or made before that date and comes into force on or after that date, shall, until that law is altered by an authority having power to do so, have effect with such modifications (whether by way of addition, alteration or omission) as may be necessary to bring the law into conformity with this Constitution and the constitution of each Region.”

The jurisdiction exercised by the Boundaries Settlement Commission at the time of the enactment of the 1963 Constitution applied to the boundaries of the areas of Local Government Councils. The jurisdiction extended also to “proprietary interests” as defined under subsection (3) of section 5 of Cap. 69. The subsection 45 provides:

“(3) In this section –

‘proprietary interests’ in relation to the area of a village, village group” clan or town means the right of disposition of interests in land of any person or authority on behalf of the inhabitants of such area, and in relation to the area of a customary court or a district, means the right of disposition of interests in land of any person or authority on behalf of the natives of any area of jurisdiction of a chief, village, village group, clan, town or other area traditionally associated with that customary court or district area.”

However the jurisdiction of the Commission was extended by Edict No. 5 of 1968 to apply to community boundaries. It is significant that even then the definition of “proprietary interests” remained unaltered. So that at all times material to this case the Boundaries Settlement Commission and the Appeal Tribunal had the power to determine both justiciable and non-justiciable issues. The power was constitutional since it was saved by the provisions of s.156(1) of the 1963 Constitution.

It is true that the case of Attorney-General of Australia v. The Queen & Anor. (supra) decided that it was unconstitutional for judicial functions to be vested in bodies other than the courts of law. The decision was based on the express provisions of the Constitution of Australia. However, a different consideration applied to the separation of powers between the organs of government in Canada; for it was held in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.

(1949) A.C. 134 that judicial functions can be vested in bodies other than the courts of law.

In the case of this country apart from the merger of the executive power with legislative power section 22 subsection (1) of the 1963 Constitution envisaged, by implication, that beside the courts of law, there would be tribunals which could properly exercise jurisdiction in determining the civil rights and obligations of persons engaged in disputes.

It stands therefore to be stressed that the doctrine of separation of powers, as a principle of interpretation of constitutions, is sometimes subject to modification by either the express or implied provisions of the Constitution – see Attorney-General of Bendel State v. Attorney-General of the Federation & Ors. (1983) 6 S.C. 8 at pp. 32, 51, 95, 117 and 147. Consequently, it was quite proper, in my view, for the Boundaries Settlement Commission and the Appeal Tribunal to be vested with judicial powers even though they were not courts of law.

Nature of Powers Conferred on the Boundaries Settlement Commission

As already seen from the provisions of section 5 of Cap.69 the Boundaries Settlement Commissioner exercised both judicial and non-judicial powers. The appellants’ complaint in this appeal relates to the adjudicative powers vested in the Commission in so far as the powers relate to Communities who have propriety interests in land under customary law. Chief Williams argued that the Commissioner determined justiciable controversy between the Oyo and Ogbomosho Communities as a Court of law would have done and that he was not competent to do so because the tribunal over which he presided was not a court of law. He submitted that the Commissioner had in fact usurped the jurisdiction of the High Court.

I have already dealt with the competence of the Boundaries Settlement Commissioner to determine justiciable controversies. His Commission was certainly 45 not a court of law but as a tribunal it had been vested with power to determine justiciable issues. In exercising the jurisdiction it was not usurping the power of the High Court or any court for that matter, but simply exercising the jurisdiction originally given to it by the legislature and which was saved by the 1963 Constitution.

Apart from the Boundary Settlement Commission, the High Court and the Customary Courts of Western State exercised jurisdiction in land disputes. They derived the jurisdiction from the provisions of the statutes that created them (see SS.8, 19 and 20 of the Customary Courts Law,Cap.31). It is however pertinent to state that although these courts exercise somewhat concurrent jurisdiction with the Boundaries Settlement Commission there is a distinctive difference between them in the manner in which a case is brought before them. Any person may institute an action in the High Court or a Customary Court but no individual may sue before the Boundaries Settlement Commission. It was only the Governor-in- Council that could refer a boundary dispute to the Commission for determination – See sections 3(2) and 4 of Cap.69. It therefore follows that any individual or community that had a boundary dispute or a dispute relating to proprietary interest in land would have to file his or their action either in the High Court or the Customary Court as the case may be. There is no question therefore of the Boundaries Settlement Commission usurping the jurisdiction of these courts in the determination of land disputes between individuals or between communities or between an individual and a community.

Severability

It was argued by Chief Williams that the provisions of section 11 subsection (5) and section 14 subsection (1) of Cap.69 are unconstitutional. The premises for the 15 argument is first, that if the Boundaries Settlement Commission was a court of law, then the determination by the Appeal Tribunal cannot be final because section 51 of the Constitution of Western Nigeria, 1963 provided that appeals from all subordinate courts would lie to the High Court. Secondly, the Appeal Tribunal was given the power to overrule the decision of any court including the Supreme Court and this offended the provisions of S.120 of the 1963 Constitution which provided that no appeal should lie from the decision of the Supreme Court. Learned Senior Advocate submitted that if the impugned provisions of ss.11 (5) and 14(1) were severed decisions from the Appeal Tribunal would go to the High Court and eventually to this Court. But that that would be substantially different from what the legislature intended to provide in Edict No. 5 of 1968. Now sections 11(5) and 14(1) provide as follows:-

“11 (5) No appeal shall lie from the decision of the appeal tribunal”

“14 (1) Subject to the provisions of section 15, the determination of a local government or community boundary, or any rights or interests in or over land of which notice is given in accordance with section 13 shall notwithstanding anything contained in any instrument or judgment, be final and conclusive as to that local government or community boundary or those rights or interests in or over land and shall not be open to question in any court.”

Dr. Ajayi conceded that the provisions of section 14 subsection (1) are unconstitutional because the Appeal Tribunal cannot be given the power to overrule the decision of a court of law. He however contended that not all the provisions of the section should be expunged.

It has already been shown that the Appeal Tribunal, like the Boundary Settlement Commission, is not a court of law. Its decisions did not lie on appeal to the High Court as did decisions from subordinate courts. In my view therefore the provisions of section 11 subsection (5) are not unconstitutional. With regard to section 14 subsection (1) counsel have not shown that the provisions thereof were inconsistent with any of the provisions of the 1963 Constitution (as suspended and modified by Act No.1 of 1966) or the Constitution of Western Nigeria, 1963. Chief Williams seems to have based his argument on the premises that the Appeal Tribunal would be sitting on appeal over the decision of the Supreme Court when it disregarded any judgment of this Court. I do not think that is the import of the provisions of section 14 subsection (1). It appears to me that what the provisions have partly said is that the decision of the Appeal Tribunal is final and conclusive despite any judgment of a court of law. In other words the Appeal Tribunal may disregard any judgment of a court of law in its determination. If this is correct, the provisions are then in conflict with the provisions of section 121 subsection (1) of the 1963 Constitution which provides –

“121 (1) The decision of the Supreme Court shall be enforced in any part of Nigeria by the High Court having jurisdiction in that part of Nigeria and all persons, authorities and other courts of law in that part as if they were decisions of that High Court.”

The phrase “by all persons and authorities” appears to me to embrace the Chief Justice (as he was then called) and the judges of the Western State High Court who constituted the Appeal Tribunal (See section 10(1) of Cap.69).

In addition, the power in question of the Appeal Tribunal is also in conflict with the provisions of section 7 subsection (2) of the Supreme Court Act, 1960 which 15 reads:

“(2) Any judgment of the Supreme Court shall have full force and effect in the Federation and shall be enforced by all courts and authorities in any part of the Federation in like manner as if it were a judgment of the High Court of that part of the Federation.”

Now the principle of severability is a rule of interpretation relating to the validity of the provision of a statute vis-a-vis the Constitution. The rule, as an aid to interpretation, is only applicable where there is no express provision of the Constitution which is to be applied. The conflict between section 14 subsection (1) of Cap.69 and section 121 subsection (1) of the 1963 Constitution was to be resolved by having recourse to the provisions of section 3 subsection (4) of the Constitution (Suspension and Modification) Act, 1966. It stated –

“(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 shall, to the extent of the inconsistency be void.”

It is however to be observed that the appellants did not in their argument rely on either section 12(1) of the 1963 Constitution or section 3(4) of the Constitution 45 (Suspension and Modification) Act 1966. Nor did they base their contention on the provisions of section 7 subsection (2) of the Supreme Court Act, 1960. The foregoing is therefore far from the trend of their argument. Consequently we did not have the benefit of the addresses of both learned counsel for the appellants and the respondents on the points. In my opinion therefore and on the authority of Olusanya v. Olusanya (1983) 3 S.C. 41 at p.55 it will be wrong to declare void the impugned provision of section 14 subsection (1) by relying on the provision and section 3(4) of the Constitution (Suspension and Modification) Act, 1966.

Furthermore it has not been shown that the Appeal Tribunal did in fact disregard any judgment of this Court in its determination of the appeal akin to this case which went before it. Therefore the exercise to declare void the provision of section 4 subsection (1) which has been called into question whether pursuant to section 3(4) of the Constitution (Suspension and Modification) Act 1966 or on the application of the principle of severability will not only be futile but merely academic.

As a result, I prefer to postpone considering the matter to a more suspicious occasion in the future.

Jurisdiction

Finally, this appeal has been considered in the light of the provisions of the 1963 Constitution, the Constitution (Suspension and Modification) Act, 1966 and the Constitution of Western Nigeria, 1963 because they were the most relevant constitutional enactments applicable between 29th January, 1971 when the Boundaries Settlement Commission determined the boundary in dispute in this case and 28th February, 1977 when the High Court disposed of the action before it. Learned counsel for the respondents contended that this court has no jurisdiction to determine any issue or action as to the validity of the Local Government Boundaries Settlement (Amendment) Edict (Law), 1968 (No.5 of 1968) in view of the provisions of subsection (6)(d) of section 6 of the Constitution of the Federal Republic of Nigeria, 1979. The subsection states –

“(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.”

Now, sections 11(5) and 14(1) of Cap.69 were originally enacted in 1956 as Western Nigeria Law No.7 of 1956. In 1968 Edict No.5 of 1968 amended section 14 subsection (1), as already quoted above, by adding to the subsection the words italized. These amendments are not in effect the subject of the appellants’ complaint. Their contentions related to the provisions of sections 11(5) and 14(1) as 35 they were originally enacted in 1956. It follows therefore that the provisions of section 6 subsection (6)(d) of the 1979 Constitution do not apply to the issue for our determination as raised by the appellants. Consequently I am unable to accept the submission of learned counsel for the respondents that we do not have jurisdiction to adjudicate on the issue.

Conclusion

In the result I will dismiss the appeal in its entirety. Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondents. ‘

Appeal dismissed.


SC.134/1982

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