The Attorney General Of The Mid-western State V. Chief Sam Warri Essi (1977)

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IDIGBE, J.S.C 

In this action the plaintiff, who is now dead, was Chief Sam Warri Essi. After his death shortly after this appeal was entered, the present respondents – Anthony Obukowho Essi Edeso and one other person – were substituted for the plaintiff. The defendant is the Attorney General of the former Mid-Western (now Bendel) State. We have before us an appeal by the defendant from the Judgement of Ephraim Akpata J. dated the 6th day of November, 1974, in favour of the plaintiff by which it was ordered as follows:

“The purported take-over of educational institutions in the state is not in accordance with law. This action, however, is only in respect of Essi College, Warri and the declaration of invalidity in this Judgement would, therefore, be limited to Essi College. The plaintiff ex debito Justice, is entitled to the declaration sought.

It is, therefore, hereby adjudged that the purported transfer and vesting of Essi College, Warri to the Government of Mid-Western State of Nigeria by virtue of the Education Edict 1972 is invalid. And it is hereby ordered that the Government of the Mid-Western State of Nigeria or any one acting by authority or order of the said Government is hereby restrained from interfering with the plaintiff’s rights and interests therein in purported execution of the powers conferred by Section 33(1) of the Education Edict. This order is to be effected within sixty days.

For the avoidance of doubt, this court has not declared invalid the Education Edict 1972 in its entirety, only to the extent of its inconsistency with the provision of the Constitution (Suspension and Modification) Decree No 1 of 1966, and therefore with the provision of Section 31 of the Constitution of the Federation …

It is unnecessary to make any pronouncement in respect of the alternative claim, having regard to the order made above.”

The above judgement is a sequel to the plaintiff’s action in which he claims from the defendant:

“(1) A declaration that the purported transfer and Vesting of the Plaintiff’s school, Essi College Warri to the Mid- Western State of Nigeria by virtue of the Education Edict 1972 is invalid and contrary to the Constitution of the Federation.

(2) An order restraining the Government of Mid-Western State of Nigeria or anyone acting by authority or order of the said Government from taking possession of the said school or interfering with the plaintiff’s rights and interests therein in purported execution of the powers conferred by section 39( 1) of the Education Edict 1972

in the alternative:

The plaintiff claims from the Government of the Mid-Western State of Nigeria the sum of N1,200,000 (one Million two hundred thousand Naira) being compensation for the compulsory acquisition of the plaintiffs property – the Essi College, Warri!”

The Education Edict 1972 referred to in the claim set out above is, the Education Edict 1972 issued by His Excellency the Military Governor of Mid-Western State of Nigeria (hereafter referred to as “the Military Governor”) as Edict No 5 of 1973 and which came into force on the 1st day of April, 1973. At the close of pleadings filed and delivered by the parties hereto in the High Court of the Mid-Western (now Bendel) State holden at Warri (hereinafter referred to as the “lower court” or the “trial court”) it was clear that the real questions to be decided in that court were:

(1) Was the plaintiff the owner of the school, Essi College Warri

(2) Are the provisions of Sections 39, 40 & 41 of Part VIII of the Education Edict 1972 aforesaid (hereinafter referred to simply as “the Education Edict 1972”) inconsistent with a Decree or the constitution of the Federation, and if so is the said Edict invalid to that extent