Keepler Hausban (Nig.) Ltd. V. Hon. Justice T. A. Irinoye & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

UMARU MAIDAMA, J.C.A. 

On the 21st of October, 1985. Anisiobi J., sitting in the High Court of Justice, Yola, Gongola State, struck out the appellant’s application for an interlocutory injunction in which the applicant sought an order of the Court to restrain the respondents, their servants, or agents from enforcing their order dated 6th of March, 1985. The appellant has now appealed to this Court and filed 4 grounds of appeal in which the following issues were raised:- .

(1) Whether section 19A of the Commissions of Inquiry (Amendment No.2) Edict, 1985 enacted by the Gongola State Government and made operative with effect from the 31st day of December, 1983, is consistent with the provisions of Decrees Nos. 1 and 13 of 1984, and the unsuspended Provisions of the 1979 Constitution of Nigeria.

(2) Whether the power of the Gongola State Military Governor to make laws for the peace, order and good government of the state can operate “in vacuo” having regard to the Provisions of the aforementioned Decrees and the unsuspended portions of the 1979 Constitution of Nigeria.

(3) Whether the learned trial Judge had jurisdiction to entertain the motion for interlocutory injunction and, indeed, the substantive suit.

Before dealing with the arguments of the learned counsel on these issues, it is necessary to set out briefly the background facts which led to this appeal. The facts as disclosed by the affidavit evidence showed that on the 21st of October, 1981, the appellant, a Building Construction Company, was awarded a contract by the Gongola State Government, for the Construction of a new Government Secondary School at Banjiram, at a cost of six million, six hundred and sixty-three thousand naira (N6,663,000) out of which the sum, of six hundred and sixty-three thousand naira, which represented 100% of the contract sum, was paid to the appellant as mobilisation. For one reason or another, the appellant failed to perform the contract. Subsequently, when the Military took over the government in 1993, the Military Governor of Gongola State set up a Judicial Commission of Inquiry to enquire into the award and execution of contracts. The respondents were appointed as its members. In setting up the Commission, the Governor amended the Commissions of Inquiry Law (Cap.25) Laws of Northern Nigeria in order to give more powers to the respondents, by inserting section 19A which provides:

“The commissioners shall, if so directed as required, make any order in relation to any property or other matter dealt with in its report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of a fee) and so delivered, the order shall have effect as a judgment of that High Court and may be enforced accordingly, but shall not be reviewed in any Court whatsoever and no appeal shall lie therefrom and any action instituted on or before commencement of this Edict in respect of any such order shall abate, be discharged or made void. ”

It was in exercise of the powers contained in this section that the respondents, at the end of their investigation, made the following order:-

“We now order the Keepler Hansban Nig. Ltd. to refund the mobilisation fee of six hundred and sixty-three thousand, three hundred Naira (N663,300) less the 2% valuation certificate of N130,329.90k. Therefore, the commission hereby orders the Keepler Hansban Nig. Ltd. to refund the sum of Five hundred and thirty-two thousand, Nine hundred and seventy naira ten kobo (N532,970.10) to Gongola State Government for failing to perform the said contract. This order shall be complied within 14 days from today, 1st March, 1985 – 15th March, 1985.”

The appellant challenged this order by filing an ex parte motion which the learned trial Judge refused to grant. The appellant again filed this application, asking for an interlocutory injunction pending the determination of the substantive suit. The application was opposed by the respondents who filed a counter-affidavit stating the reasons for their objection. After hearing both parties, the learned trial Judge upheld the objection and struck out the application. This is the reason why the applicant has come to this Court.

In arguing the issues raised by the grounds of appeal, learned counsel for the appellant treated all the issues together. The first point made in his submission is whether section 19A of the Amendment No. 2 Edict 1985 which was promulgated by the Gongola State Government was consistent with the provisions of Decrees Nos. 1 and 13 of 1984 and the unsuspended provisions of 1979 Constitution.

He first conceded that the Military Governor, by virtue of Section 2(2)(3) of Decree No.1 of 1984 had powers to make laws for the peace, order and good government of his State. He also conceded that the Military Governor has power by virtue of Section 2 of the Commissions of Inquiry Law (Cap.25) Laws of Northern Nigeria, 1963 (applicable to Gongola State) to set up a Commission of Inquiry. He again conceded that by virtue of Decree No.1 of 1984, and Section 1(2)(b) of Decree No. 13 of 1984, the validity of the Commission of Inquiry (Amendment No.2) Edict of 1985, cannot he challenged. What he is challenging is the consistency of section 19A of Edict No.2 of 1985, with the provisions of Decrees Nos.1 and 13 of 1984, and the unsuspended provisions of the 1979 Constitution of Nigeria. For ease of reference Section 19A of the Amendment No.2 Edict is reproduced hereunder:

“19A. The Commissioners shall, if so directed as required, make any order in relation to any property or other matter dealt with in its report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of a fee) and so delivered the order shall have effect as a judgment of that High Court and may be enforced accordingly but shall not be reviewed in any Court whatsoever and no appeal shall lie therefrom and any action instituted on or before the commencement of this Edict in respect of any such order shall abate, be discharged or made void.”

(Italics is mine).