Olawoyin J. S. V. Attorney-general, Northern Region (1961) LLJR-SC

Olawoyin J. S. V. Attorney-general, Northern Region (1961)

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UNSWORTH, F.J. 

This is an appeal from a decision of the late Chief Justice Brown of Northern Nigeria, dismis-sing on a preliminary objection, a claim by the appellant in the following terms:–

1. A declaration that Part VIII of the Children and Young Persons Law 1958 has been rendered void and unenforceable by the provi-sions of sections 7, 8 and 9 of the Sixth Schedule to the Nigeria (Constitution) Order in Council.

2. That directions be issued in accordance with section 245 (1) of the Nigeria (Constitution) Order in Council to all Nigeria Police Of-ficers, Native Authority police officers and all Magistrate Courts, Native Courts and Alkali Courts in this Region that the aforesaid provisions of the Children and Young Persons Law 1958 should no longer be enforced.

The law in respect of which the appellant sought a declaration is Part VIII of Northern Region Law No. 28 of 1958, which prohibits political activities by juveniles and prescribes penalties on juveniles and others who are parties to certain specified offences. The Constitution in force at the time of the hearing in the lower Court was the Nigeria (Constitution) Order in Council, 1954 (hereinafter referred to as the 1954 Constitution) and the sec-tions of the Sixth Schedule to that Constitution referred to in the claim con-tained provisions protecting fundamental rights relating to private and fam-ily life, freedom of conscience and freedom of expression. It is not necessary for the purposes of this judgment for me to set out the above-mentioned pro-visions in detail.

The learned trial Judge dismissed the claim on the ground that no right of the plaintiff was alleged to have been infringed and that “it would be con-trary to principle to make the declaration asked for in vacuo”.

The first point that arises for consideration on this appeal is whether the High Court had any jurisdiction at all to make a declaratory judgment in a case relating to fundamental rights. The learned Solicitor-General of North-ern Nigeria argued that the Court had no such power. He referred to section 245 of the 1954 Constitution, which (in so far as is relevant to this appeal) provides:–

Enforcement of fundamental rights

(1)       Any question regarding the provisions of the Sixth Schedule to this Order in their application to a Region shall be heard and de-termined by the High Court of the Region, and the High Court shall have power to make such orders, issue such writs and given such directions as it may think fit for the purposes of enforcing those provisions within the Region.

(2)       If any question regarding the provisions of the Sixth Schedule to this Order in their application to a Region arises in the course of proceedings before any court other than the High Court of the Region that court may hear and determine that question.

(3)       Nothing in this section shall prevent any court established for a Region other than the High Court from exercising jurisdiction in respect of any or all of the matters referred to in subsection (1) of this section in accordance with any provision in that behalf in any law in force in the Region.

(4)       A law enacted by the Federal Legislature or the Legislature of a Region may confer upon the High Court of that Region such ad-ditional or supplementary powers as may appear to be necessary or desirable for enabling the Court more effectively to exercise the jurisdiction conferred upon it by subsection (1) of this section and may make provision with respect to the practice and proce-dure of the Court while exercising that jurisdiction.

The learned Solicitor-General urged that the section contemplates an actual infringement of fundamental rights and pointed out that the powers given to the Court under subsection (1) did not include the power to make a declaratory judgment. He said that the procedure prescribed by the section was exclusive and therefore prevented the Court from invoking any power to make a declaratory judgment which it might have apart from this section. In support of this he cited the case of Bombay and Persia Steam Navigation Company Limited v. Maclay(1920) 3 K.B. 402 in which it was held that the plaintiffs could not obtain a declaration of their right to compensation against the Treasury and that the action was therefore misconceived. I do not think that this case is in any way conclusive, as it is clear that the ground for the decision was that the machinery of a declaratory judgment “cannot be used to prejudice the issue of what may have to be adjudicated upon in a petition of right as to a money claim against the Treasury”. In my view the case that is more in point is Dyson v. Attorney-General (1911) 1 K.B. 410 and 1912 1 Ch. 158 in which it was held that a person, who had been threatened with a penalty if he did not make a Tax return which was ultra vires, could ob-tain a declaratory judgment against the Attorney-General and was not bound in such a case to proceed by a petition of right. Chief Rotimi Williams (learned counsel for the appellant) in reply, said that section 245 (1) con-sisted of two parts, namely, that conferring jurisdiction, and that specifying remedies for the enforcement of fundamental rights. He submitted that the second part does not in any way limit the jurisdiction conferred by the first part, and I agree with him on this point. I think that something very much more definite would be required to deprive the Courts of their jurisdiction to make a declaratory judgment. As was said by Lord Denning in the case of Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1958) 1 Q.B.554 at page 567. “I take it to be settled law that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words.”

This leads to consideration of the jurisdiction to make a declaratory judgment. Section 13 of the Northern Region High Court Law, 1955, provides that the court shall 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. It follows from this that the High Court in Northern Nigeria has the same power as that Court to make a declaratory judgment under Order XXV rule 5 of the Rules of the Supreme Court. It was conceded by the learned Solicitor-General that the extent of this power is as laid down in the case of Guaranty Trust Co. of New York v. Hannay (1915) 2 K.B. 536 where it was held that the Court has power to make a declaration, whether there is a cause of action or not, at the instance of a party interested in the subject matter. It will be noted that a declaration can only be made in favour of an interested party and a person asking for a declaration must therefore first show that he has an interest in the subject matter. It will then be for the court to decide on the facts whether or not it will exercise its discretionary power to make a declaration in accordance with any general principles that may from time to time be laid down in Nigeria for the making of declaratory judgments in constitutional matters.

The learned Solicitor-General drew the attention of the Court to the practice in other countries relating to declaratory judgments in constitutional cases. It appears from the case of Dwarkadas v. Sholapur Spinning Co. (1954) S.C.A. 132, and A.I.R. (1954) S.C. 119 and other Indian cases, that only a person whose rights have been affected by a Statute may challenge its constitutional validity, and that person’s rights must be directly or immediately threatened. These decisions are in line with the general rule in the United States of America, as expressed in Massachusetts v. Mellon (1923) 262 U.S. 447 at 488 where the Court observed:-

The party who invokes the power must be able to show not only that the Statute is invalid, but that he has sustained, or is immediately in danger of sustaining, some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.

The question of what is a sufficient interest was considered in the Australian case of Crouch v. The Commonwealth 77 C.L.R. 339 where it was held that an allegation that the plaintiffs business was hampered by the necessity of obtaining permits under an allegedly invalid law was sufficient to sustain the action. The Court was equally divided on whether an allegation that the plaintiff had been served with a summons for breach of the law was itself sufficient to enable him to seek a declaration, as distinct from raising the point as a defence in the criminal proceedings. On the question of a justiciable issue the learned Solicitor-General referred to the American case of the United Public Workers v. Mitchell (1947) 330 U.S. 75. In that case certain employees of the Executive Branch of the Federal Government sued for an injunction against members of the Civil Service Commission to prohibit them from enforcing the provisions of a Statute which forbade such employees from taking any active part in political management or political campaigns, and also for a declaratory judgment of the unconstitutionality of those provisions. They did not allege that they had violated the Statute or that they were threatened with any disciplinary action, but only that they de-sired to engage in acts of political management and in political campaigns. It was held by the majority of the Court that this did not present a justiciable issue or controversy.

Learned counsel for the appellant, in reply, said that all that the cases cited by the learned Solicitor-General amount to is that the Courts will not declare a law invalid unless there has been some injury to the plaintiff or some infringement, of his rights, or some threat of such injury or infringe-ment, (then continue with and submitted that the making of a law which make

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