Legislation

• Pages: 627-632

LEGISLATIONS

(1) CHARACTER OF LEGISLATION

1801. The true nature and character of legislation.

“It is well established that you are to look at the ‘true nature and character of the

legislation’: Russell v. The Queen (L.R. 7 App. Cas. 839) ‘the pitch and character of

the legislation.’ If, on the view of the statute as a whole, you find that the substance

of the legislation is within the express powers, then it is not invalidated if incidentally

it affects matters outside the authorised field. The legislation must not under the guise

of dealing with one matter in fact encroach upon the forbidden field. Nor are you to

look only at the object of the legislator. An act may have a perfectly lawful object,

e.g., to promote the health of the inhabitants, but may seek to achieve that object by

invalid methods, e.g., a direct prohibition of any trade with a foreign country. In other

words, you may certainly consider the clauses of the Act to see whether they are

passed ‘in respect of the forbidden subject.”- Per Ademola, C.J.F. in Akwule v.

Queen Suit No. F.S.C. 325/1962; (1963) N.R.N.L.R. 105 at 110; (1963) 3 N.S.C.C.

157 at 160.

(2) COMPETENCE TO MAKE LAW

1802. Challenge of competence of Military Governor to make laws.

“A close look at the appellant’s claim and grounds of appeal set out above, shows

that, in sum, the following are his contentions: (i) That because Decree No. 37 of

1968 became effective from 29th July, 1968 it could not have been the enabling

Decree to the Order M.S.L.N. 33 of 1968 which became effective from 15th March,

1968, when the said Decree was not in existence. This, to my mind, is directed to the

effect and validity of the law, not a challenge to the competence, i.e. the capacity and

power of the Military Governor of Bendel State to make the order. (ii) That in so far

as Decree No. 37 of 1968 is regarded as the enabling Decree for the order, the order,

made to take effect before the Decree came into effect, was invalid. (iii) That if the

order was deemed to have been made under the earlier Decree, No. 51 of 1966,

which was subsisting until it was repealed with effect from the 29th of July, 1968, by

Decree No. 37 of 1968, then the order was inconsistent with Decree No. 51 and

therefore void. (iv) That the appellant’s assets were not forfeited under Decree No.

37 of 1968. (v) That there is no evidence in support of the finding that the appellant

had sufficient other assets which could have been made the subject of forfeiture. (vi)

That Sections 9 and10 of Decree No. 37 of 1968 are alternative procedures and do

not allow for both reparation and forfeiture.

The learned counsel for the respondent formulated the issues rather succintly

as follows: “2.1. Whether the Forfeiture Order M.S.L.N. 33 of 1968 was made

under Decree No. 51 of 1966 and if the answer is in the affirmative, whether M.S.L.N.

33 of 1968 is void for inconsistency with the parent Decree in purporting to forfeit

assets not unjustly or improperly acquired. 2.2. Whether the forfeiture Order M.S.L.N.

33 of 1968 was made under Decree No. 37 of 1968. 2.2(a) If the answer to (2) is in

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Character of legislation Paras. 1801,1802