A.G. OF THE FEDERATION & ORS. V. SODE & ORS.

• Pages: 271-306

A.G. OF THE FEDERATION & ORS. V. SODE & ORS.

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271

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A.G. OF THE FEDERATION & ORS. V. SODE & ORS.

A.G. OF THE FEDERATION

SAMUEL ADEDOYIN

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RACHEL RESTAURANT LTD.,

V

C.O. SODE

B.A. OKUJOREN

K. ODUJOKO

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(Executors of the Will of

Chief S.O.O.Sode)

SUPREME COURT OF NIGERIA

BELLO,



C.J.N.

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

OBASEKI,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

BELGORE,



J.S.C.

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

WALT,



J.S.C.

2nd March, 1990.

APPELLANTS

RESPONDENTS

SUIT NO. SC.120/1987

Constitutional Law - Constitution of Nigeria, 1979 - Effect on pre-1979 actions - SS. 8 and

12 of Investigation of Assets (Public Officers and other persons) Decree, No 37 of 1968,

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as amended and ss.4 and 6 of Public Officers (Special Provisions) Act, No 10 of 1976,

L.N. 33 of 1978 - Abrogation of by 1979 Constitution - Effect of s.6(6)(d) of the same

Constitution Public Officers (Special Provisions) Decree, 1976 - Whether an existing

Law by virtue of s.274 of the 1979 Constitution.

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Jurisdiction - Courts - Effect of Ouster Clauses Assumption of Jurisdiction - Propriety of

Jurisdiction of Court - When determined.

Interpretation and Construction - Statutes - Ascribing meaning to conform with Judge's

view of sound social policy - Propriety of - Ouster clauses in statutes - How construed.

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Words and Phrases - Right of action - Weaning of

ISSUES:

1.

Whether the Court should assume jurisdiction over an executive act when the

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law under which the executive acted clearly ousts the jurisdiction of the Court?

2.

What is the purport of ouster provision in Decrees?

3.

Whether the Court can assume and exercise jurisdiction where there is no right

of action?

4.

Whether the provisions of particular Statute can place any limitation on the

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unlimited jurisdiction of High Courts in Civil and Criminal matters?

5.

What is a right of action?

6.

Whether there are exceptions to the Ouster Clause under s.6(3), (4) Public Officers

(Special Provisions) Decree No.10 of 1976?

7.

What is the extent of exclusion of jurisdiction under the Public Officers (Special

Provisions) Decree, No. 10 of 1976?

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NIGERIAN SUPREME COURT CASES [1990] 1 N.S.C.C.

8.

Whether the Court can confer jurisdiction on itself where this is no conferred by

a Statute?

9.

What is the importance of the issue of jurisdiction to the hearing of an action?

10.

What is the effect of the Court exercising jurisdiction where the Statute under

Consideration Conferred none on the Court.

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11.What effect does the 1979 Constitution have on the decrees made before it,

especially Decree No. 37 of 1968.

12.

Whether the Public Officers (Forfeiture of Assets) Order 1978 (L.N. 33) was a

proper Order made under any existing law?

13.

Whether the Court has jurisdiction to set aside the forfeiture of assets order in 10

view of the ouster clauses in the Decrees under which the order was made?

14.

Whether a person can sue for a redress under the 1979 constitution when the

alleged violation or infringement took place before the 1979 constitution came

into effect?

FACTS:

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The Respondents (Plaintiffs at the High Court), who were the executors of the

estate of Chief Samuel Oyekoya Oyelate Sode (deceased), the owner of the property

in dispute, No.132 Broad Street, Lagos, instituted the action in a Lagos High Court.

The plaintiffs claimed against the defendants possession of the property, No.132

Broad Street Lagos, among other reliefs.

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The plaintiffs' case was that by a lease agreement dated 15th June, 1971, the

property in issues was leased to one Adanan Ahmad Fayad for a term of 25 years.

Mr Fayad, an alien was later departed from Nigeria. But before then, he had assigned

his unexpired term of that lease to Jebs Ltd. owned by J.H. Bassey who was a Deputy

Commissioner of Police.

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By virtue of Investigation of Assets (Public Officers and other persons) Decree

1968, Public Officers (Special Provisions) Decree 1976 and Public Officers (Special

Provisions) Decree 1976 and Public Officers (forfeiture of Assets) Order 1978 which

was subsequently amended by the Public Officers (forfeiture of Assets) (Miscel-

laneous Provisions) Order 17 of 1979, the assets of Mr J.H. Bassey including Jebs 30

Ltd. were forfeited and rested in the Federal Military Government. The interest of

Jebs Limited described by Order 17 of 1979 as "Unexpired term of the lease hold in

respect of the Ground Floor of 132 Broad Street, Lagos, granted to Jebs Limited"

was also forfeited to the government.

The 1st defendant, on behalf of the government took possession of the property 35

in issue following this forfeiture. The 1st defendant, later sold, by auction, the properly

to the 2nd defendant who put the 3rd defendant in possession.

At the High Court, the 1st defendant did not participate in the trial after joining

issues. The defendants relied on want of jurisdiction of the Court or legal and

equitable defences. The issue of jurisdiction was not however taken at the trial. The 40

learned trial judge in his judgment considered the effect of the Public Officer

(Forfeiture of Assets) (Miscellaneous Provisions) Order, 1979, and he dismissed the

claims of the plaintiffs in their entirely. The plaintiff appealed to the Court of Appeal.

At the Court of Appeal, among the issues raised was

whether the jurisdiction of

the High Court was ousted by the Decrees and Orders. The Court of Appeal after 45

reviewing the provisions of the relevant Decrees and Orders held that the Court had

jurisdiction and that the intention was the forfeiture of the interest of J.H Bassey and

not those of the Appellants. The Court of Appeal went to decide the substantive

issue. I held that Jebs Ltd. could not have been forfeited to the government because

the original grant to Fayad was not registered under the provisions of section 14 of 50

the Land Registration Act, Cap 99 of the laws of the Federation of Nigeria 1958 and

the Registration of Titles Act, Cap 181 of the 1958 Laws of the Federation. As such,

it was void and could not have been transferred on the principle of

nemo dat quod

non habet.

Accordingly, the Court of Appeal set aside the judgment of the trial Court

and allowed the appeal with costs. The Plaintiffs/Appellant appealed to the Supreme

Court.

A.G. OF THE FEDERATION & ORS. V. SODE & ORS.

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273

HELD:

1.

The Courts must, indeed, be alert that their jurisdiction is not tampered with or

diminished by mischievous construction. That is when the jurisdiction exists by

statute and is supported by the constitution. However, once, in clear language

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and barring all ambiguities a law is made which ousts the jurisdiction of the courts

and tribunals from looking ini:o the validity of an executive act, and all the

protective provisions of the Constitution as to fundamental rights are suspended,

as is done in Military Regimes, the courts cannot assume jurisdiction.

2.

The purport of ouster provisions in Decrees is clear, that is, no court or tribunal

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should look into the matter which the courts are prevented from looking into. This

is the peculiarity of military regimes which makes the constitution subjected to

their Decrees.

3.

It is settled that the exercise of a right of action is derived from fundamental law

of the land, or any statute specifically conferring such right. However, the court

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can only exercise jurisdiction with respect to a right of action, and cannot assume

jurisdiction unless the Plaintiff who has brought the action before it has a right of

action.

4.

Although High Courts exercise unlimited Civil and Criminal jurisdiction vide S.

236 (1) of the 1979 Constitution, the amplitude of this jurisdiction can be and is

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sometimes, limited by the provisions of particular statutes. Hence when the

words of a statute suggest that the Court shall not have jurisdiction it is of critical

importance for the court to construe the words of the provision very carefully the

words used the nature of the provision very carefully and to gather from the words

used the nature of the ouster.

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5. A right of action consists in the facts which enables a person to bring a complaint

before the Court. This right can be created or extinguished by Statute.

6.

A literal construction of the unambiguous words of section 6 (3) thereof, and the

use of the word "shall" which here is mandatory, coupled with the opening phrase

which is imperative, "No proceedings" clearly demonstrate without any ambiguity

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that no Court is vested with jurisdiction in respect of any act, matter, orthing done

or purported to be done by any person under the Decree. The expression used

does not leave any room for exceptions or indicate conditions for the exercise of

jurisdiction.

7.

The exclusion of jurisdiction witn respect to the public officers Decree, No. 10 of

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1976 relates to both acts done aid those purported to be done under the Decree.

Thus, as soon as it can be shown that the act complained of in the action is one

done under the Decree, whether done or purported to have been done, S. 6(3)

operates to exclude the jurisdiction of the Court.

8.

Where jurisdiction is not expressly conferred by statute, a Court cannot interpret

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the provision so as to confer jurisdiction by implication. The well settled principle

of construction of statutes in our Courts is that where the words of the statute are

clear that the jurisdiction of the court is excluded, the court is bound to give effect

to such words.

9.

The issue of jurisdiction is fundamental to the hearing of an action. It is particularly

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relevant to determine in

limine

al the first opportunity whether there is jurisdiction.

10.Where there is no jurisdiction the exercise of jurisdiction will result in nullity. It

was clear on the pleadings that the jurisdiction of the Court was ousted by the

provisions of the Decrees and Legal Notices relied upon by the 1st

defendant/Appellant. The Court of Appeal was in error to have ignored the

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provisions ousting the jurisdiction of the Court.

11.The investigation of Assets (Putlic Officers and other persons) Decree No.37 of

1968 ceased to have any effect upon the coming into effect of the constitution

1979 (Decree NO 105 of 1979). Eut the validity of any acts done under the Decree

or the competence of any authority as regards that law was preserved, and

excluded from the exercise of jt,risdiction by the Courts in section 6(6)(d) of the

1979 constitution. It is obvious, however, that the Decree precluded the Courts