THE ATTORNEY GENERAL OF THE MID-WESTERN STATE (APPELLANT)
v.
CHIEF SAM WARRI ESSI (RESPONDENT)
(1977) All N.L.R. 56
Division: Supreme Court of Nigeria
Date of Judgment: 4th April, 1977
Case Number: SC.366/75
Before: (Fatayi-Williams, Idigbe, Obaseki JJ.S.C)
The then Government of Mid-Western State (now Bendel State) by virtue of section 39 of the Educational Edict 1972 transferred and vested Essi college, Warri to the Government of Mid-Western state of Nigeria. The purported takeover was contested in the High Court of Bendel holden at Warri by Plaintiff (proprietor of Essi College Warri) who was substituted by two others (because he died during the pendency of the suit).
The plaintiff/respondent claimed that the purported transfer and vesting of the plaintiffs school to the Mid-Western state of Nigeria by virtue of the Education Edict 1972 is contrary to the constitution of the Federation and thereby invalid.
The plaintiff/respondent sought an order restraining the Government of Mid-Western State of Nigeria or any one acting by authority or order of the said Government from taking possession of the said school or interfering with the respondent's rights and interests therein in purported execution of the powers conferred by section 39 of the Education Edict 1972.
The respondent claimed in the alternative from the Government the sum of N1,200,000 (one million two hundred thousand Naira) being compensation for the compulsory acquisition of the school.
The lower court in its judgment was of the view that any edict which is inconsistent with the Constitution of the Federation not suspended by Decree No.1 of 1966 can be attacked and declared invalid, because by implication such an edict is inconsistent with Decree No. 1 of 1966 and that some provisions of section 40(2) of the Education Edict 1972 "completely negate" the payment of "adequate compensation" to a proprietor of a school taken over by the State Government by virtue of the provision of section 39 of the said edict and these provisions are inconsistent with section 31 (1) (a) of the Constitution of the Federation.
On appeal, the appellants contended that the learned trial Judge erred in law when he held that any edict which is inconsistent with any section of the Constitution not suspended by Decree No. 1 of 1966 can be attacked and declared invalid because by implication such an edict is inconsistent with Decree No.1 1966, when the basis of the claim before him was that the edict offends against the provisions of the Constitution of the Federation. That the court below had no jurisdiction to declare part viii particularly sections 40(2), 41(1), 41(4) of the Education Edict 1972 invalid.
HELD:
(1) If the provisions of any Edict are inconsistent with the provisions of a Decree such an Edict is invalid to the extend of its inconsistency with the Decree, and the provision of that Decree must prevail.
(2) If the provisions of any edict are inconsistent with the unsuspended provisions of the constitution, the provisions of such an Edict are invalid and the Edict itself is to the extent invalid.
(3) In the above mentioned instances, the High Court of Bendel State has (as, indeed, all state High courts in the federation have) the jurisdiction to pronounce the relevant edict invalid to the extent of its inconsistency with the Decree or the constitution.
(4) Generally, no court in the federation has any jurisdiction or power to declare a Decree invalid. Also no court in the federation has any jurisdiction or power to question, or pronounce upon, the competence of either the Federal Government or the Government of a State to promulgate a Decree or Edict.
(5) Although section 40 of the Education Edict is consistent with section 31(a) of the constitution in that they both provide for "adequate compensation" in respect of compulsory acquisition; the provisions of some paragraphs of section 40 (2) are capable of distracting from entrenched rights of citizens to compensation in the sum of money equal to the market value of his land as provided under the Public Lands Acquisition Law and so make the situation "less favourable" to him contrary to the express provisions of section 31(2) (c) of the constitution. Thus the Education Edict is void to the extent of this inconsistency.
(6) The provisions of sections 40(3) and 41(4) which states that a proprietor cannot take the matter of compensation in respect of property "compulsory acquired" to court unless and until
(a) the committee appointed under section 41(1) has considered his claims and submitted its recommendations to the Military Governor as to the amount of compensation to be paid and
(b) the Government has communicated its decision to the proprietor inhibit considerably the unqualified right of the citizen under section 31 (1) (b) of the constitution to take all matters relating to his claims to compensation directly to the High Court of the State is in conflict with section 31(2) (c) of the constitution and thus null and void to the extent of this inconsistency.
Appeal fails.
Mr D. Azinge for Appellant
Mr K. Sofola for Respondent
(With Mrs A. Ogwume).
Statutes referred to:
(1) Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970
(2) The Constitution (Suspension and Modification) Decree No. 1 of 1966
(3) The constitution (Basic Provisions) Decree No.34, 1975
(4) Education Edict (Mid-Western Nigeria) 1972
(5) Public Officers Protection Law (cap 106)
(6) Public lands Acquisition Law cap 105 vol. old order of the 1959 laws of Western Region of Nigeria
Cases referred to:
(1) Chief Adebiyi Adejumo v Col. Mobolaji Johnson, Military Governor Lagos State
(2) Buolifa and Merthyr Dane Steam Collieries (1891) Ltd v Pebtt Prudd Water Works co., (1903) A.C 420 H.L
(3) Chief David Ereku v the Military Governor Mid-Western state (1974) 10 S.C59
(4) E. C. Oyinke v Eastern States Interim Assets and Liability Agency (1974) 10 S.C77
(5) Lakanmi and anor v the A.G. Western Region and others S.C58/69 of 24th April 1970
(6) Re an Arbitration between Lucas and the Chester-field Gas and Water Board (1909) 1 K.B 16
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 Obukowno 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 Judgment 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 Judgment 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 judgment 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 any one acting by authority or order of the said Government from taking possession of the said school or inter-faring 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 plaintiff's 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?
(3) is the plaintiff entitled to the declaration, order and claim he seeks in this action?
We think it is necessary at this stage to set out some of the essential paragraphs in the pleadings delivered by the parties; and these in our view are paragraphs 1, 4, 5, 6, 7 & 8 of the statement of claim and paragraphs 4, 9, 10, 12, 13 & 14 of the statement of defence. They read as follows:
Statement of Claim
"(1) The Plaintiff is the proprietor of Essi College, Warri
"(4) By section 39 of the said Edict (i.e. the Education Edict 1972) the Government purported to transfer and vest in the state every institution in the state with effect from 1st April 1973 and provided as follows:-
(5) Section 40(1) of the Education Edict provided for payment of Compensation
(6) The said Edict made no provision giving a person claiming compensation a right of access for the determination of his interest and or the amount of compensation to the High Court as provided by section 31(1)(b) of the Constitution of the Federation.
(7) The said Edict in its section 41(1) provided for a compensation Committee with functions "inter alia" to determine the amount of compensation to be paid to a proprietor in respect of the property rights or interests "transferred and vested in the State by virtue of the Edict."
(8) The plaintiff will contend-
(i) that the compensation Committee is not a court or tribunal envisaged in section 22(1) of the Constitution of the Federation and has no power to determine the plaintiff's civil rights.
(ii) that section 41(4) of the Edict is inconsistent with section 22(1) of the Constitution of the Federation and is null and void.
(iii) that the whole of part VIII of the Education Edict 1972 is ultra vires the Government, and is inconsistent with the Constitution of the Federation and is null and void "
"Statement of Defence.
(4) In answer to paragraph 6 of the statement of claim the defendant will contend at the trial that the Education Edict 1972 makes provisions for adequate Compensation and gives the plaintiff a right of access to the High Court for the determination of his interest in the property and the amount of compensation.
(9) In answer to paragraph 8(1) of the statement of claim the defendant will contend at the trial that the Compensation Committee set up under the provisions of the Education Edict 1972 is a tribunal.............. with powers to examine Claims for compensation put up by persons entitled to the same.
(10) In answer to paragraph 8(ii) of the statement of claim the defendant will contend at the trial that part VIII and Section 41(4) of the Education Edict 1972 (sic) is consistent with section 22(1) of the Constitution of the Federation.
(12) The defendant will further contend at the trial that by virtue of section 39(1) of the Education Edict 1972 Essi College Warri has been properly transferred to and vested in the Government of Mid-Western State of Nigeria.
(13) The defendant will contend at the trial that the plaintiff is not entitled to bring this action without (first) complying with section 41 of the Education Edict 1972.
(14) The defendant will also contend at the trial that the plaintiff is not entitled to compensation by virtue of section 40(3) of the Education Edict 1972."
At the hearing of this case in the lower court neither party called evidence but each relied on submissions on points of law; and at the close of the address of Counsel on both sides the learned trial Judge in a considered judgment was of the view that:-
(1) "any Edict which is inconsistent with any section of the Constitution of the Federation not suspended by Decree No.1 of 1966 can be attacked and declared invalid, because by implication such an Edict is inconsistent with Decree No 1 of 1966."
(2) some of the provisions of section 40(2) of the Education Edict 1972 "completely negate" the payment of "adequate compensation" to a proprietor of a school taken over by the State Government by virtue of the provision of Section 39 of the said Edict; and, in his view, these provisions are inconsistent with Section 31(1)(a) of the constitution of the Federation.
(3) Section 41(4) of the Education Edict interferes with the right of the citizen (in this case, the proprietor of a school taken over by the State Government) to bring a claim in the High Court of the State for determination of the amount of compensation due to him. Accordingly, he held that the section 41(4) aforesaid is inconsistent with the express provisions of section 31(1)(b) of the Constitution of the Federation."
Being firmly of the views set out above it was only natural that the learned Judge came to the conclusion that it was necessary to make the orders which we had earlier on set out in this judgment. This appeal from the said judgment is by the defendant; henceforth he shall be referred to in these proceedings as the appellant and the plaintiff shall be referred to as the respondent. Altogether seven grounds of appeal were filed but only three of them were argued before us and these grounds read:
"(2) The learned trial Judge erred in law in that part of his Judgment where he held 'any Edict which is inconsistent with any section of the Constitution not suspended by Decree No 1 of 1966 can be attacked and declared invalid, because by implication such an Edict is inconsistent with Decree No 1 of 1966, when the basis of the claim before him was the Constitution of the Federation.
(4) That the Court below had no jurisdiction to declare part VIII particularly section 40(2) 41(1)41(4) of the Education Edict 1972 invalid.
(5) That the learned trial Judge erred in law in holding that the take-over of Essi College, Warri or Part VIII and sections 40(2), 41(1), 41(4) of the Education Edict 1972 (Bendel State) were not in accordance or are inconsistent with (sic) law particularly sections 22(1) 31(1)(a), 31(1)(b) 31(2)(c) and 31(2)(d) of (sic) Constitution of the Federation, since the provisions of the law are not in-fringed."
Although these grounds were argued separately the entire submissions and argument in support of these grounds may be summarised thus:
(1) That, by virtue of the provisions of Decree No 28 of 1970-The Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (hereinafter referred to as "The Supremacy Decree") which came into force on 9th May, 1970 no court in the Federation (i.e. the Federation of Nigeria) has any power or jurisdiction to pronounce an Edict invalid. This according to learned Counsel for the appellant is because the "exception clause" reserved in the Fourth Preamble to the Supremacy Decree specifically mentions "a Decree" and nothing else (certainly; it failed to mention "the Constitution"). In this respect, Counsel further submitted the "Exception clause" aforesaid differs from the provisions of sub-section 4 of section 3 of Decree No 1 of 1966-Constitution (Suspension and Modification) Decree 1966 (hereinafter referred to as "the 1966 Decree").
(2) While it was possible before the Supremacy Decree for a court in the Federation-by virtue of the provisions of section 3(4) of the 1966 Decree-to pronounce an Edict invalid if parts of the Edict are inconsistent with "a law made by Parliament before January 1966" (and this includes the Constitution as modified by the 1966 Decree) the court could not pronounce an Edict in its entirety (as distinct from parts thereof), invalid because any order to that effect tantamounts to a challenge on the Competency of a State Government to make the Edict.
(3) Therefore although a Court prior to the Supremacy Decree (but not after it came into operation), could declare parts only of the Education Edict 1972 invalid (if it is found to be inconsistent with the unsuspended parts of the constitution) it could not properly or lawfully make such an order if the effect of such an order was to render the Edict, in its entirety, nugatory and ineffective. This submission which was rather feebly put was based on learned Counsel's peculiar understanding of Section 3(4) of the 1966 Decree, the provisions of which he contended enabled a court (prior to the Supremacy Decree) to declare invalid only parts, but not the whole of an Edict which are found to be inconsistent with a Decree or the unsuspended parts of the Constitution of the Federation. Accordingly, since, as learned Counsel claimed, the effect of declaring invalid all of Part VIII of the Education Edict 1972 was to render the entire Edict, ineffective the trial Court had no jurisdiction to make the order contained in its judgment of the 6th day of November 1972. Such an order can neither be supported under the provisions of Section 3(4) of the 1966 Decree nor under the provisions of the Supremacy Decree.
(4) In the alternative, learned principal state counsel, Mr D.K. Azinge appearing for the appellant, at the end of his argument submitted that the provisions of Part VIII of the Education Edict 1972-particularly sections 40 & 41 are consistent with the provisions of Section 31 of the Constitution of the Federation.
Learned Counsel for the respondents, Mr Kehinde Sofola contended that the unsuspended parts of the Constitution of the Federation were preserved as part of that Decree (No 1 of 1966) which kept them operative, and that although the expression "the unsuspended parts of the Constitution" (or, for that matter, the expression "the Constitution") was omitted in the "exception clause" reserved in the Fourth Preamble to the Supremacy Decree the expression "the Decree" mentioned therein (i.e. in the "exception clause" aforesaid) must be read "to include the Constitution" (i.e. the operative parts retained by Decree No 1 of 1966). With reference to the argument put forward on behalf of the appellant that the effect of an order declaring part VIII of the Education Edict in 1972 invalid was a challenge to the competency of the State Government to make or promulgate such an Edict, the submission on behalf of the respondent was that such an order did not render the remaining parts of the said Edict, invalid in other words, the declaration as to invalidity must be confined to Part VIII of the Education Edict aforesaid and cannot, in the circumstances of this case, without doing violence to language, be stretched to include or affect the said Edict in its entirety. Learned Counsel for the respondent, however, submitted that the provisions of sections 40 & 41 of the Education Edict 1972 are clearly in conflict and inconsistent with Section 31 of the Constitution of the Federation because, not only do they derogate from the right of the citizen, prior to January 1966, to "adequate compensation", they make the conditions governing his entitlement "to any compensation or the amount thereof less favourable" to him. On the question whether the Supremacy Decree has taken away the rights of courts of this country to pronounce on the validity or otherwise of an Edict which is found to be in conflict with the Constitution of the Federation or "a Decree", learned Counsel for the respondent submitted that the courts still possess the necessary jurisdiction to make such pronouncements. He then referred us to a few decisions of his court; and these include the cases of (1) Chief David Ereku v The Military Governor Mid-West State (1974) 10 S.C.59 at 65 & 74. (2) E.C. Oyinke vs Eastern States Interim Assets & Liability Agency (1974)10 S.C77 at 81-83, 86 & 88.
On the issue of the competency of a State Government to promulgate an Edict, learned Counsel for the respondent readily concedes the contentions and submissions on behalf of the appellant that the question whether a State Government is competent to legislate or promulgate an Edict cannot be entertained by a court; but he submits that the court can inquire into the question whether the provisions of a particular Edict conflicts with those of a Decree or the Constitution of the Federation.
We pause to examine the provisions of the Education Edict 1972 with which the above contentions and submissions are concerned. These are sections 39, 40 and 41 of Part VIII of the said Edict which consists of only four sections. The only remaining section of Part VIII is section 42; and as it only provides for the application of the Public Officers Protection Law (Cap 106) to members of the Compensation Committee to be appointed under the provisions of section 41 of the Edict it has no relevance to the issues under consideration. We now set out the sections of the Edict referred to in the submissions and contentions aforesaid. Section 39(1) reads:-
"39 (1) Subject to the provisions of this Edict, there shall on the date of commencement of the Edict be transferred to and vested in the State by virtue of this Edict, every institution in the State, and, accordingly, there shall be transferred to and vest in the State as from the said date:
(a) all interests in or attaching to any premises used for the purposes of every local authority or voluntary agency institution or anything whatsoever forming part of a local authority or voluntary agency institution including any lands, building equipment, furniture, books and any other movable property whatsoever held or used in or in connection with any institution by the proprietor, trustees or administrators of such institution immediately before the commencement of this Edict; and
(b) all rights and liabilities to which any such proprietor trustees or administrators were entitled or subject immediately before the date of commencement of this Edict, being rights and liabilities acquired or incurred solely for the purpose of managing or otherwise carrying on the business of any such institution as is referred to in the last preceding paragraph or any part there of
40 (1) Subject to this section, there shall be paid to the proprietor of every institution in respect of any property right or interest transferred to or vested in the State by virtue of this Edict, such adequate compensation based on the book value of the assets and liabilities of the institution and on such terms and conditions as may be agreed between the proprietor and the Government.
(2) Every case of compensation should be determined on its merits, taking into consideration the following circumstances:-
(a) whether the proprietor is an individual or a community, a religious organisation or other society or body of persons;
(b) the amount or value of contribution, if any, made by persons or bodies other than the proprietor towards the cost of the buildings and equipment in the institution;
(c) the amount of any grant, if any, made by the State Government or any other Governments of the Federal Republic of Nigeria towards the cost of the