NIGERIAN CONSTITUTIONAL LAW CASES

AUTHORS:

ADEBAJO F ADEKUNLE & JIMOH A MUJIB, UNIVERSITY OF IBADAN

CASES

1. Lakanmi & Ors v. A.G. Western state
2. Governor of Kaduna v. House of Assembly, Kaduna
3. National Assembly v. President of the FRN
4. Samuel Ekeocha v. Civil Service Commission, Imo state & another
5. Godwin I. & Ors v. Governor of Bendel state & Ors.
6. G. of Bendel state v. A.G. of Federation & 22 Ors.
7. Bamidele & Ors v. Commissioner of L.G. & Community development, Lagos & another

A.G. OF BENDEL STATE V. A.G. OF FEDERATION AND 22 ORS

The President forwarded a bill titled Allocation of Revenue Bill 1980 to the National Assembly setting out a new formula for the distribution of the amount standing to the credit of the Federation account between the Federal and State governments by the National Assembly into law pursuant to section 149 of the 1979 constitution.

The Bill was irregularly passed into law and presented to the President who assented to it and it became known as the Allocation of Revenue Act 1981. Dissatisfied with the way the National Assembly had exercised its legislative power in respect of the Bill, the Government of Bendel state as plaintiff then challenged the constitutionality of the Act by an originating summons in the Supreme Court invoking its jurisdiction under Section 212 of the 1979 constitution. The Supreme Court held: in favour of the plaintiff Bendel State Government, inter alia, that the said Act was null and void for failure of the National Assembly to follow the prescribed legislative procedure for passing it into law.

By the combined effect of sections 4(8), 149, 212 and 272 of the 1979 constitution, the government of Bendel state has a right to sue the FG in the Supreme Court. The Supreme Court has jurisdiction to hear the suit. Any state which takes the view that the legislative procedure followed in enacting a law is not in accordance with the procedure laid down in the constitution has a justiciable dispute.

A legislature which operates a written constitution in which the exercise of legislative power and its limits are clearly set out, has no power to ignore the conditions of law making, that are imposed by the constitution which itself regulates the power of the legislature to make law.

The defendants contended that the plaintiff had already collected its share of the revenue and so could not challenge the Act, on the ground of estoppel; that it cannot approbate and reprobate. To this the Supreme Court held that an estoppel cannot be set up if it will result in preventing the performance of constitutional and statutory duties.

Similarly, a plea of estoppel must fail if it must result in unconstitutionality or illegality. There can be no estoppel against the assertion of the supremacy of the constitution. No unconstitutional act could ever be validated by raising the defence of estoppel against a plaintiff. It would destroy the whole doctrine of ultra vires, or unconstitutionality for a donee of constitutional power to extend his power or even diminish it in any form by relying on the doctrine of estoppel to stop would-be plaintiffs from litigating and contesting the constitutionality of the act in question. No estoppel will operate to negate the operation of a statute or the provision of the constitution. There can be no estoppel against the constitution. No one including a government of a state can waive a constitutional requirement or provision. A constitutional provision is in force until it is amended, and it binds all authorities and persons in the country.

LAKANMI AND ANOTHER V. ATTORNEY-GENERAL (WESTERN STATE) AND OTHERS

This is an appeal from the Western state court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of the Western State sitting at Ibadan.

The application before the High court was for an order of certiorari to remove an order dated the 31^st day of August, 1967, made by Mr Justice Somolu in his capacity as Chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed.

The Assets Tribunal, invoking the provisions of Section 13(1) of Edict No. 5 of 1967, had ordered that Mr E.O. Lakanmi, his daughter and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature, until the Military Governor of the Western State of Nigeria shall otherwise direct.

Again, it is ordered that Mr Lakanmi and his said daughter [Kikelomo Ola] shall not operate their individual bank accounts by means of withdrawal, without the consent of and only to the extent that the Military Governor shall permit in writing.

Furthermore, the Assets Tribunal also ordered that all rents due on the properties shall thenceforth be paid by the tenants into the Western State Sub-treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary. This order is dated 31^st day of August, 1967.

The learned judge of the High Court on the 21^st day of December, 1967, dismissed the application, holding that the order was not ultra vires and that the Edict No. 5 of 1967 was validly made since, according to him, the Federal Military Government decree No. 51 of 1966 was not in operation in the western State of Nigeria when the Edict was made. He went on to say that the validity or otherwise of the order could not be challenged since section 21 of Edict No. 5 of 1967 states that the court of law shall not entertain any matter on ‘anything done by any person with a view to the holding of, or otherwise in relation to any inquiry under that Decree and this Edict.’

A few days after this High Court judgment, on the 27^th of December of 1967, the appellants filed their notice of appeal with nine grounds of appeal to the Western State Court of Appeal. From the grounds of appeal filed, it became obvious to the respondents what they must expect at the hearing of the Appeal, and when the appeal was pending, the Federal Military Government came to their aid by passing three successive decrees, applying throughout the federation.

Thus, on the 18^th October, 1968, the Acting Principal State Counsel filed in the Western State Court of Appeal a notice of preliminary objections that the court had no jurisdiction to entertain the appeal, using the new decrees as premises. In fact, in one of the three new laws, Decree No. 45 of 1968, the schedule mentioned the present appellants’ names and others.

When the appeal was to be heard on October 22, 1968, the Court of Appeal ruled that Decree No. 45 of 1968 was valid, and that the order, the subject matter of the action, has been validated by the Decree; plus the jurisdiction of the court has been ousted.

GOVERNOR OF KADUNA STATE V. HOUSE OF ASSEMBLY, KADUNA STATE AND ANOTHER

The case was brought before the court by way of originating summons asking for a declaratory judgment by the plaintiff, the Governor of Kaduna, making both the House of Assembly, Kaduna state and the Attorney-General, Kaduna state as first and second defendants respectively.

He contends that being the Governor of Kaduna state and being the person vested with executive powers of the state by virtue of some provisions in the CFRN and Local Government Edict (now law) 1976, he is also vested with the executive powers with regards to Local Government Councils in the state; and that some sections of the Local Government edict (Amendment) Law 1979 violate some in the CFRN, and thus should be declared null and void. He says the powers of government, between the legislature and executive, ought to be duly separated; and submitted that the legislature has no constitutional power to create local governments, give itself powers to administer laws and perhaps conduct inquiries.

Dr Kusamotu, counsel for the defence, however submitted that the legislature has the right to pass the law as it did and that this legislation falls within the legislative competence of the legislature. That the changes introduced in the amendments are just to make the law conform to the requirement of the case.

The presiding judge decided that once the legislature has created a Local government by law, the execution of that law in relation to the local government becomes the affairs of the executive. This includes taking steps that are reasonably necessary to enable the executive to enforce the doing of the act or thing. In this case, signing of an instrument. He holds that the Amendment in paragraph 4(b) amending section 4(2) of the 1976 law, whereby the function of signing of instrument establishing local government has been assigned to the legislature is outside the bounds of the legislature and therefore unconstitutional, null and void.

The action of the Governor succeeded in respect of some Amendments like the one afore-mentioned and failed in respect of some other Amendments, which were declared by the court as being constitutionally in order.

SAMUEL L. EKEOCHA V. THE CIVIL SERVICE COMMISSION IMO STATE & ANOTHER

     This is an action as to the legality of the dismissal or retirement of the plaintiff/applicant by the first defendant/respondent. Acting under the ules of Court, the court framed an issue to writ: ‘whether there is at present in Imo state, a body properly and competently constituted and known as and called the Imo state Civil Service Commission as opposed to the original and former Imo State Public Service Commission.’

NATIONAL ASSEMBLY v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA

The Electoral Bill 2002 was sent to the President for assent after it had been passed by each House of the National Assembly. The President withheld his assent whereupon each House by a two-thirds majority passed a motion to override the President’s veto.

The Independent National Electoral Commission then brought the present action challenging the validity of the Act passed. On appeal to the Court of Appeal, the issue was whether the Act was validly passed by two-thirds majority of members present as against two-thirds of all the members and by passing the bill vide a process of motion.

Held: “The Electoral Act had not been validly passed. Under section 58(5) of the Constitution, to override the President’s veto, each of the Houses of the National Assembly has to pass the Bill again since the section states ‘and the Bill is again passed by each House’ i.e. the Bill has to go through the same processes it had previously gone through when it was first passed. The passing of a mere ‘motion for veto override’ did not satisfy the requirement of the section. The two-thirds majority of each House means two-thirds majority of its membership and this has no relationship with the ordinary quorum of a House.”

HON. GODWIN JIDONWO AND OTHERS v. GOVERNOR OF BENDEL STATE

  George Idodo Umeh was twice nominated by the Governor of Bendel state for confirmation as a commissioner and his nomination was twice rejected. Before that, his nomination was sent to the State Assembly but was not properly placed before the House and was therefore not debated. The Governor taking this to mean confirmation since 21 days had expired, sworn in Mr. Umeh. Dissatisfied, some members of the House of Assembly challenged the appointment. The issue before the court was about the procedure for appointing a state commissioner under section 173 of the Constitution.

Held: “The Constitution clearly sets out the powers of the three arms of government, and if the legislature passes any law beyond its competence, and which it had no jurisdiction to pass, whether or not it was passed by all the members of the House, any member of the House of the public who is affected can challenge it in court, and nothing prevents the court of competence jurisdiction from hearing and determining matters that had been discussed in the House.

BAMIDELE AND ORS. V. COMMISSIONER FOR LOCAL GOVERNMENT LAGOS STATE AND ANOR.

The appellants claimed against the respondents at the High Court of Lagos State, praying to the court to grant an order of injunction restraining the respondents, their servant or agents from establishing, regulating and maintaining markets and particularly restraining them from interfering with the day to day activity of the Alayabiagba market situated within the Island Local Government of enjoyment by the respondents of the said market.

Held: “Section 7(5) of the 1979 Constitution provides for the functions of Local Government councils, and in the fourth schedule of the constitution which is… the establishment, maintenance and regulation of markets, motor parks and public toilet. It will be unconstitutional for any other person or authority to purport to exercise e that function on the state of the law. The function has been given to the Local Government”.