A-G. OGUN STATE V. A-G. FEDERATION

• Pages: 1-36

A-G. OGUN STATE V. A-G. FEDERATION

A-G. OGUN STATE V. A-G. FEDERATION

1.

A-G. OGUN STATE

PLAINTIFF

V

A-G. FEDERATION

DEFENDANT

SUIT NO. SC 53/1981

2.

A-G. BENDEL STATE

PLAINTIFF

V

1.

A-G. FEDERATION

2.

C.O.P. BENDEL STATE

3.

I-G. OF POLICE

DEFENDANTS

SUIT NO. SC 55/1981

3.

A-G. BORNO STATE

PLAINTIFF

V

1.

A-G. FEDERATION

2.

I-G. OF POLICE

3.

C.O.P. BORNO STATE

DEFENDANTS

SUIT NO. SC 57/1981

(CONSOLIDATED)

SUPREME COURT OF NIGERIA

FATAI-WILLIAMS,



C.J.N.

UDOMA,

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

IRIKEFE,

BELLO,

IDIGBE,

ESO,

ANIAGOLU,

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

5th February, 1982

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Constitutional Law - Interpretation of statutes - Powers of Federal and State

Government to legislate on same subject - Doctrine of covering the field -

Applicability - Constitution of the Federal Republic of Nigeria (Adaptation of

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



Public Order Act) Order 1981 - Consequential modification made therein to

Public Order Act 1979 by the President, as appropriate authority - Invalidity

of unilateral modification requiring concurrence of; instead of, consultation with

State Governor before exercise of certain powers connected with public safety

and public order - Validity of further substitutional modifications.

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Words and Phrases - "Any property, right, priviledge, liability or obligation. -

Vested in any fomier authority of a state', in s.276(1) of 1979 Constitution -

Confined to rights etc. in contract or tort.

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ISSUES:

1. Whether the modification and changes made by the President in the provisions

of the Constitution of the Federal Republic of Nigeria (Adaptation of Public

Order Act) Order 1981, bring the Act into conformity with the provisions of the

1979 Constitution as required by section 274(2) of the said Constitution.

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10

15

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2

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NIGERIAN SUPREME COURT CASES

11982] N.S.0 c.

2.

Whether the President is the appropriate authority to make modifications or

changes in the provisions of the Public Order Act of 1979, under the 1979

Constitution.

3.

Whether there is any infraction of the 1979 Constitution in the provisions of the

Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act)

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Order 1981.

FACTS:

The Attorney-General for Ogun, Bendel and Borno States, instituted separate

actions against the above named defendants as representing the Federal Govern-

ment. The three suits were later consolidated and heard as one. The complaints

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and arguments of the three State Governments were to the effect that the Public

Order Act No.5 of 1979 was a State Law since it only operated in and was applied

to the States (even though it was centrally enacted). That being the case, and hav-

ing regard to the provisions of the 1979 Constitution, the President of the Feder-

ation had no power or authority under the Constitution to have modified the

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provisions of the Public Order Act No. 5 of 1979 by making the Adaptation Order

No.5 of 1981. The Adaptation Order No. 5 of 1981 has been attacked as being,

inter alia, unconstitutional,

ultra vires

the President, and an unlawful exercise of

legislative power which does not reside in the President under the Constitution.

HELD:

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1.

That the Public Order Act No. 5 of 1979 having taken effect as an Act of the

National Assembly on 1st October 1979 when the 1979 Constitution came into

force, then by virtue of the provisions of sections 274(2); 274(4)(a)(i) of the

Constitution, the President was the only competent authority to have modified

it by Order so as to bring the law into conformity with the Constitution.

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2.

The contention of the Attorneys-General that the Public Order Act No.5 of 1979

was a State Law cannot be sustained. The contention is unsound in law and

unreasonable in logic.

CASES REFERRED TO IN JUDGMENT:

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1.

Ex Parte Mclean

(1930) 43 C.L.R. 472 at 483.

2.

Hume v. Palmer

(1926) 38 C.L.R. 441.

3.

O'Sullivan v. Noarlunga Meat Ltd.

(1957) A.C. 1 at 24.

4.

Attorney-General of Ontario v. Attorney-General of the Dominion of Canada

(1894) A.C. 189.

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5.

Tennant v. Union Bank of Canada

(1894) A.C. 31 at 47.

6.

Grand Trunk Railway of Canada v. Attorney-General of Canada

(1907) A.C.

65 at 68.

7.

Melbourne Corporation v. The Commonwealth

(1947) 74 C.L.R. 31 at 61-62.

8.

Julius v. The Bishop of Oxford

(1880) 5 App. Cas. 214 at 225.

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9.

Lakanmi v. Attorney General for Western Nigeria

(1974) E.C.S.L.R. 713 at

722.

FATAI-WILLIAMS, C.J.N.

(Delivering the Judgment of the Court): Section 69,

subsections 1(a), 1(b), (4) and (5) of the Constitution of the Federation of Nigeria,

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1963, provide as follows:

"(1) Parliament shall have power to make laws -



(a) for the peace, order and good government of Nigeria (other than the

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Federal Territory) or any part thereof with respect to any matter in-

cluded in the Legislative Lists; and

A-a OGUN STATE V. A-G. FEDERATION

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(b) for the peace, order and good government of the Federal Territory

with respect to any matter, whether or not it is included in the Legis-

lative Lists.

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(4)

If any law enacted by the legislature of a Region is inconsistent with any

law validly made by Parliament, the law made by Parliament shall prevail

and the Regional law shall, to the extent of the inconsistency, be void.

(5)

Subject to the provisiols of subsection (4) of this section, nothing in this

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section shall preclude the legislature of a Region from making laws with

respect to any matter that is not included in the Exclusive Legislative List."

From the above provisions, it is clear that both Parliament and the legislature

of a Region (which were then only three) could legislate in respect of any matter

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in the Concurrent Legislative List in Part II of The Schedule to the said Constitution.

Furthermore, it is self-evident b / virtue of the provision of section 69 subsection

(4) thereof, that if there was any inconsistency between a law made by Parliament

and one made by a Regional Legislature, the Regional law would, to the extent of

the inconsistency, be void.

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It is, of course, settled law, based on the doctrine of covering the field with

which I shall deal in more detail later, that if Parliament enacts a law in respect of

any matter in which both Parliament and a Regional legislature are empowered to

make laws, and a Regional legislature enacts an identical law on the same subject

matter, the law made by Parliament shall prevail. That made by the Regional legis-

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lature shall become irrelevant and therefore, impliedly repealed.

Among the matters in respect of which both Parliament and a Regional legis-

lature could make laws in the Concurrent Legislative List are those listed in Items

18 and 29 of the said List.

The Items read -

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"18. The maintaining and securing of public safety and public order; the

providing,

maintaining and securing of such supplies and services as

may be designated by the President by order as essential supplies and

services.

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29.

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Any matter that is incidental or supplementary to any matter mentioned

elsewhere in this list."

Not long after the 1963 Constitution came into force, the Mid- West Region was

created out of the former Western Region. In 1967, twelve States were created out

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of the four Regions. In 1975, the number of States in the Federation was increased

to nineteen. Each of these nineteen States inherited the legislative powers of the

former Regions in respect of the matter referred to above in item 18 of the Con-

current Legislative List.

By virtue of this power, each of the nineteen States either enacted or adapted

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its own Public Order Law as enumerated and classified below -

Law



Chapter or



State or

Number



States in

which the

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law is

operative