DOKUN AJAYI LABIYI
(REPRESENTING LABIYI FAMILY)

v. 

1. ALHAJI MUSTAPHA MOBERUAGBA ANRETIOLA
(FOR HIMSELF AND ON BEHALF OF ANRETIOLA FAMILY, ILERO)
2. JOKANOLA IGE (DECEASED)
(REPRESENTING IGE FAMILY)
3. OLADOSU AKINTAYO (DECEASED)
(REPRESENTING AKINTAYO FAMILY)
4. ABIOYE ABERE
(REPRESENTING ABERE FAMILY)
5. SECRETARY, KAJOLA LOCAL GOVERNMENT
6. THE ATTORNEY-GENERAL, OYO STATE.

 1992-LD-SC-479

Supreme Court 

2nd October, 1992. 

Justices: 

Saidu Kawu, J.S.C

Philip Nnaemeka-Agu, J.S.C

Emmanuel Obioma Ogwuegbu, J.S.C

Shehu Usman Mohammed, J.S.C

Adolphus Godwin Karibi-Whyte, J.S.C., (Read The Leading Judgment) 

Subject Matter(s): 

1.Proliferation of Issues

2.Power of Court
3. Interpretation of Statute 

Final Order: 

Appeal Dismissed.

RATIO DECIDENDI
PROLIFERATION OF ISSUES – Attitude of the Supreme Court towards proliferation of issues; principle against proliferation of issues

“This Court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single issue running through them. It is patently undesirable to split the issue in a ground of appeal.“

SECTIONS 1, 6(6), 236 OF THE 1979 CONSTITUTION AND SECTIONS 2(1), (2), (3), (4) AND 5 OF THE DECREE NO.1 OF 1984 – Interpretation of Sections 1, 6(6) and 236 of the 1979 Constitution and Sections 2(1), (2), (3) (4) and 5 of Decree No.1 of 1984 as regards the hierachy of the military regime

“A new Constitution came into force on the 1st October, 1979, Sections 1, 6(6) and 236 of which provide as follows – “1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” 6(6)(b) The judicial powers vested in accordance with the foregoing provisions of this section – shall extend to all mailers between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. 236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” Sections 2(1), (2), (3) (4), 5 of Decree No.1 of 1984 provide as follows, “2(1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever. (2) The Military Governor of a state – (a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and, (b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter in the Concurrent Legislative List relating to Federal Legislative Powers set out in the second column of part 11 of the Second Schedule to the Constitution. (3) subject to subsection (2) above and to the Constitution of the Federal Republic of Nigeria 1979, the Military Governor of a state shall have power to make laws for the peace, order and good government of that State. (4) If any law (a) enacted before 31st December, 1983 by the House of Assembly of a State, or having effect as if so enacted; or (b) made after that date by the Military Governor of a State, is inconsistent with any law – (i) validly made by the National Assembly before that date, or having effect as if so made, or (ii) made by the Federal Military Government on or after that date, The law made as mentioned in sub-paragraph (i) (ii) above shall prevail, and the state law shall to the extent of the inconsistency, be void.” It is clear on reading of Section 2(1)-(4) of Decree No. 1 of 1984; particularly subsection (3) that the legislative powers of the Military Governor of a state is subject to the prior consent of the Federal Military Government with respect to any matter in the concurrent legislative list relating to Federal Legislative powers set out in the Second column of Part 11 of the Second Schedule of the Constitution, and to the Constitution of the Federal Republic of Nigeria, 1979. I have already set out in this judgment the provisions of Section 1, 6(6)(b) and 236 of the Constitution, 1979. It is clear from the words of Section 2(3) of Decree No.1 of 1984 that any law validly made by a Military Governor of a State is subject to the provisions of the Constitution 1979. This was the position on the 31st December, 1983, when the Constitution (Suspension and Modification) Decree 1984 came into force. It is important to refer to the unambiguous words of Section 1(1) of Decree No.1 of 1984 which suspended the provisions of the 1979 Constitution mentioned in Schedule 1 to the Decree. Section 1(2) then goes further to provide as follows- “Subject to this and any other Decree, the provisions of the said Constitution which are not suspended by sub-section (1) above shall have effect subject to the modifications specified in schedule 2 to this Decree.” Thus on the 31st December, 1983, the status of the laws in the order of superiority would seem to be as follows – 1. Constitution (Suspension and Modification) Decree 1984 2. Decrees of the Federal Military Government 3. Unsuspended provisions of the Constitution 1979. 4. Laws made by the National Assembly before 31/12/83 or having effect as if so made 5. Edicts of the Governor of a State 6. Laws enacted before 31st December, 1983 by the House of Assembly of a state, or having effect as if so enacted. I have already reproduced S. 2(4)(b) which provides that where any law made by the National Assembly before 31st December, 1983, or made by a Military Governor of a State thereafter, is inconsistent with a law made by the National Assembly before that date, or by the Federal Military Government on or after that date, the laws of the National Assembly or the Decrees of the Federal Military Government shall prevail, and the state law to the extent of the inconsistency be void.”

SECTION 2(4) OF DECREE NO.1 OF 1984, SECTION 6(6)(B) OF THE 1979 CONSTITUTION, SECTION 236 OF THE 1979 CONSTITUTION AND SECTION 2(C) OF THE CHIEFTAINCY MATTERS (EXCLUSION OF JURISDICTION OF COURTS) EDICT NO.3 OF 1985 – Interpretation of Section 2(4) of Decree No.1 of 1984, Sections 6(6)(b) and 236 of the 1979 Constitution and Section 2(c) of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985 as regards the extent of the jurisdiction of the court to determine the validity of a Decree or an Edict

“The principle is simple. The organic Decree, in this case No.1 of 1984, set out to define the organic law or grundnorm of Nigeria. Subject to its provisions it gave unlimited legislative powers to the Armed Forces Ruling Council and so it has power even to amend the organic Decree by subsequent Decrees. Subject to the limitations placed by the Decree itself, it gave unlimited legislative powers to a Military Governor of a State within his area of authority and competence. One of those limitations, as per section 2(4) of Decree No.1 of 1984 is that the Military Governor of a state must not pass any Edict which is inconsistent with the organic Decree, any other Decree, any unsuspended section of the 1979 Constitution, or any Act of the National Assembly. To give effect to the intendment of this legislative scheme, the organic Decree left unsuspended section 6(6) (b) of the 1979 Constitution which gives judicial powers to the courts and section 236 of the same which gives unlimited jurisdiction to the High Courts of states to adjudicate on all matters relating to the civil rights and obligations of any person in the Nigerian State. The summary effect of this state of our constitutional provisions and legislations is that Oyo State High Court has the jurisdiction and power to inquire into whether or not section 2(c) of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No.3 of 1985, is inconsistent with the letters and spirit of Decree No.1 of 1984; Decree No. 13 of 1984 which reinforces it, and sections 6(6) (b) and 236 of the 1979 Constitution. For, nothing can be more in conflict with the judicial powers vested on the courts by section 6(6) (b) of the Constitution and the unlimited jurisdiction of the High Courts of a state to hear and determine all issues relating to the civil rights and obligations of the plaintiff than to exclude the jurisdiction of Oyo State High Court from adjudicating on the chieftaincy questions clearly a civil right of the plaintiff. As there can be no doubt that it is in conflict therewith, it is void and of no effect.”

POWER OF COURT – Whether the Court of Appeal has the power to correct any error which was not raised in ground(s) of appeal

“The Court of Appeal was not entitled to correct any error which was not raised in any of the grounds of appeal: Chief Ejowhomu v. Edok-Eter Ltd. (1986) 5 N.W.L.R. (Pt.39) 1.”

“SUBJECT TO” – Import of the phrase “subject to” when used in a statute

“The phrase ‘subject to’ in the section is significant. The expression is often used in statutes to introduce a condition, a proviso, a restriction and indeed a limitation -See Oke v. Oke (1974) 1 All NLR (Pt.1). The effect is that the expression evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter – See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR. (Pt. 91) 622. In other words, where the expression is used at the commencement of a statute, as in Section 1(2) of the Decree No.1 of 1984, it implies that what the sub-section is “subject to” shall govern, control and prevail over what follows in that section or sub-section of the enactment. -See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 529.”

ISSUE(S) FOR DETERMINATION – Whether where issues for determination are not related to the grounds of appeal, such could be grounds for nullity

“… the question of issues and their relationship with the grounds of appeal are matters of practice and procedure. They go to irregularity and are no grounds for nullity. A party who has to take objection to such matters must do so timeously and before taking any fresh steps after becoming aware of the non-compliance.”

JURISDICTION – Effect of a court hearing a matter where it has no jurisdiction

“It must be noted, however that an issue of jurisdiction of a court is most fundamental. For where a court lacks jurisdiction, it lacks the vires to decide any issue in the case.”

SECTION 2(4) OF DECREE NO.1 OF 1984, SECTION 1(2)(B)(I) OF DECREE NO.13 OF 1984 – Interpretation of Section 2(4) of Decree No.1 of 1984, Section 1(2)(b) and (i) of Decree No.13 of 1984 as regards the extent of the ouster of the jurisdiction of court

“The ouster of the Court’s jurisdiction under Section 1(2) (b) (i) only relates to ‘any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict’. It does not preclude the courts from declaring void any Edict that is inconsistent with any law validly made by the National Assembly before 31st December,1983 or made by the Federal Military Government on or after that date – see Section 2(4) of Decree No.1 of 1984. It is, in my humble view, wrong to read into the Decree, what is not there, as was, with respect, done in this case by the learned trial Judge. Indeed, the wording of Section 1(2) (b) of Decree No.13 of 1984 is quite different to the wording of Section 1(2)(b) of Decree No. 28 of 1970. What is precluded from the court’s jurisdiction in Section 1(2) (b) (i) of Decree No. 13 of 1984 is any act, matter or thing done or purported to be done under a Decree or an Edict to which for purposes of interpretation, must be added the words ‘that is validly promulgated’. Where any Edict is void by virtue of Decree No. 1 of 1984 anything done under such a void Edict cannot, in my humble view, qualify for the protection provided in Section 1(2) (b) (i) of Decree No. 13 of 1984.” This has been the interpretation of this Court to the ouster provisions in Decree Nos. 1 of 1984 and 13 of 1984 and similar Decrees before them. See Military Government of Ondo State v. Adewunmi (1985) 3 N.W.L.R. (Pt.13) 493; Onyiuke v. Eastern States Interim Assets & Liabilities Agency (1974) 1 All N.L.R. (Pt.2) 151; Adejumo v. Johnson (1974) 1 All NLR 29 Council of the University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 213; Osadebay v. A.-G, Bendel State (1991) 1 N.W.L.R. (Pt.169) 525.”

GROUND(S) OF APPEAL – Whether a ground of appeal alleging a misdirection is distinct from one alleging error in law

“So, much as it is true that a ground of appeal which is a misdirection is different from, and in fact mutually exclusive of, one which is an error in law (for which see Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt. 67) 718 at 744 for the simple reason that the former relates to the court’s statement of a party’s case whereas the latter relates to the determination by the court, the question being one which derives from the rules, the appellant has lost the opportunity of raising the point at this stage.”

ISSUE(S) FOR DETERMINATION – Effect of issue(s) for determination not distilled from/related to ground(s) of appeal

“The first of the issues formulated by learned counsel to the Appellant is not supported by any of the grounds of appeal filed. It is therefore not an issue for determination before this Court. See Modupe v. State (1988) 4 NWLR. (Pt. 87) 130.”

POWER OF COURT – Power of Court to pronounce on the validity of decrees and edicts

“In the early decision of the Lakanmi v. A-G Western State (1974) 4 ECSLR, 713 the Supreme Court attempted to assert its constitutional authority in declaring invalid the provisions of a decree which was inconsistent with the provisions of the Constitution. The correct position has always been, and this was reasserted in Federal Military Government (Supremacy and Enforcement of Powers) Decree No.28 of 1970, that the Decrees of the Federal Military Government are superior to the surviving sections of our Constitution, 1963. The Constitution 1963 is superior to the Edicts of Military Governors. Although the Courts are vested with jurisdiction to determine the issue where a provision of a decree or Edict is inconsistent with the surviving section of the Constitution 1963, it had no jurisdiction to pronounce on the validity of the making of the Decree or Edict. These propositions have been clearly enunciated in the judgment of this Court in Adamolekun v. The Council of the University of lbadan (1968) NMLR. 253 where Ademola, C.J.N. construing the provisions of S. 6 of Decree No.1 of 1966 in relation to the exercise by the Court of its jurisdiction to pronounce on the validity of an Edict, said, “Reading the Decree as a whole we are in no doubt that Section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the Court from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words the Court is not enquiring into whether the Military Governor of a Region could legislate by Edict, but only whether Section 35 of the Edict is inconsistent with the Constitution of the Federation. Constitution of the Federation. ” This view was followed in Onyiuke v. E.S.I.A.L.A. (1974) 1 All NLR (Pt.11) 151, Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC. 1, Agip (Nigeria) Ltd. v. A-G of Lagos State (1977) 11-12 SC.33. The last mentioned case was decided under Decree No. 32 of 1975 which is in pari materia with Decree. No. 1 of 1966 in respect of the legislative powers of the Federal Military Government, and State Governors.”