Reference from Ilesha, Grade "A" Customary Court, of a question on the constitutional validity of sections 13 to 19 of the W.R. Local Government Police Law, Cap. 70 Laws of Western Nigeria.

The Objector was charged by the respondent before the Ilesha Grade "A" Customary Court. When the matter came before that court for trial, it was submitted on behalf of the Objector that the proceedings were wrongly conceived in that "there is no public official known as the Superintendent-General of Local Government Police." Reference was made to sections 13 to 19 inclusive of the W.R. Local Government Police Law (W.R. Cap. 70, 1959 Ed.), which, it was contended, were ultra vires sections 98(4) and 98(7) of the Constitution of the Federation insofar as they purported to provide for the appointment of a Superintendent-General of Local Government Police Forces. Counsel representing the Objector then asked that the issue raised should he referred to the High Court for adjudication. The court thereupon referred the following question to the High Court for reference to the Supreme Court should the High Court so determine:-

Whether or not, the provisions of sections 13 to 19 of the Local Government Police Laws, Cap. 70, Laws of Western Nigeria relating to the appointment and functions of a Superintendent-General of Local Government Police is contrary to the provision of section 98 of the Constitution of the Federation of Nigeria and ultra vires the said Constitution.

In the High Court, Counsel on behalf of the Objector contended that section 98(7) of the Constitution of the Federation did not provide for the appointment of any officer of Local Government Police Forces with functions in respect of such forces covering the whole Region. He submitted that under the Constitution of the Federation (section 99) such functions were exclusively vested in the Commissioner of Police of the Nigeria Police Force within the Region; and further that it was the Commissioner of Police exclusively who was under a duty to prosecute offenders, by virtue of section 99(4) of the Constitution of the Federation.

It was further contended, on behalf of the Objector, that since the Superintendent-General of Local Government Police Forces has not been by Order of the Governor placed under the command of the Commissioner of Police, as provided by subsection (1) of Section 19 of the W.R. Local Government Police Law, his appointment is ultra vires the Constitution of the Federation.

HELD:

(1) The High Court, in determining whether a question referred to it by a lower court under section 108 of the Constitution of the Federation involves a substantial question of law, must decide whether the Law questioned is or is not constitutional; and if the High Court is of opinion that it is unconstitutional the question involves a substantial question of law and must be referred to the Federal Supreme Court: On the other hand, if the High Court is of opinion that the Law is not unconstitutional no substantial question of law arises, and the matter must be referred back to the court below with directions.

(2) Section 98(7) of the Constitution of the Federation empowers Regional legislatures to make provision for the maintenance of local government police forces in provinces or parts of provinces.

(3) Where a power is conferred by law there is an implied construction that all means of exercising that power to the best advantage will be conceded to the donee of such power. It is not necessary for the details of such provisions to be set out in a Constitution; it is enough if the material outline of that power is clearly set out.

(4) The power to provide for the maintenance of local Government police forces implies the power to provide for their selection, training, discipline and supervision.

(5) Provision by Law that one official shall have supervisory functions over all local government police forces in a Region, does not mean that those forces have therefore ceased to be provincial.

(6) The Superintendent-General of Local Government Police Forces appointed under the provisions of sections 13 to 19 of the W.R. Local Government Police Law, (W.R. Cap. 70) is the Superintendent-General of each force established under that Law, and the fact that he is the supervisor of each such force in the Region does not convert such forces into a Regional force.

(7) Provision that the Superintendent-General of Local Government Police Forces is subject to the control of the Governor and not of the Commissioner of Police of the Region does not render his appointment ultra vires the Constitution of the Federation.

(8) The provisions of Sections 13 to 19 inclusive of the Western Region Local Government Police Law, W.R. Cap. 70, are not contrary to or ultra vires the Constitution of the Federation, 1960, and are valid existing laws under the provisions of Section 3 of the Nigeria (Constitution) Order in Council, 1960.

(9) The question referred in this matter does not involve a substantial question of law.

Reference to Federal Supreme Court refused: Case remitted to lower Court for trial.

Cases referred to:-

Gamioba and others v. Esezi II and others, (1961) All N.L.R. 584.

McCulloch v. Maryland, (1819), (U.S. Sup. Ct.), 4 Wheat 316; 4 L. Ed. 579.

Norwich Corpn. v. Norfolk Ry. Co., (1855), 4 E. and B. 397; 24 L.J.K.B. 105; 25 L.T.O.S. 11; 1 Jur. N.S. 344; 3 C.L.R. 519; 119 E.R. 143.

Giara v. C.P. Syndicate, (1949), 4 D.L.R. 20. (Bom.).

Abdur Rahman v. Raghbir, (1951); 6 D.L.R. 107. (Simla).

Olawoyin and others, v. Commissioner of Police, (No. 2), (1961) All N.L.R. 622.

Constitution and Law referred to:-

Nigeria (Constitution) Order in Council, 1960, section 3: Second Schedule, Constitution of the Federation, sections 98(4), 98(7), 99(4), 108(1)(a), 108(1)(b).

W.R. Local Government Police Law, 1955, (W.R. Cap. 70) sections 13 to 19 inclusive.

CONSTITUTIONAL REFERENCE from Ilesha, Grade "A" Customary Court.

Olowofoyeku for the Objector.

Director of Public Prosecutions for the Respondent.

Somolu, J.:-By a ruling made on 6-9-61, the President of the Ilesha Grade 'A' Customary Court referred to this Court the following question for determination:-

Whether or not, the provisions of sections 13 to 19 of the Local Government Police Laws, CAP. 70, Laws of Western Nigeria relating to the appointment and functions of a Superintendent-General of Local Government Police is contrary to the provision of section 98 of the Constitution of the Federation of Nigeria and ultra vires the said Constitution.

The reference is not too carefully worded in part, but I think it is quite clear that it is made under section 108 of the Constitution of the Federation of Nigeria, and that the Superintendent-General of Local Government Police referred to therein actually refers to the Superintendent-General of Local Government Police Forces as provided for by section 13 of the Local Government Police Law, Cap. 70 of the Laws of the Western Region of Nigeria, 1959. According to the record of proceedings forwarded to this Court, the issue as to the appointment of the Superintendent-General of Local Government Police Forces was raised by Mr Olowofoyeku before the Ilesha Grade 'A' Customary Court on 21-8-61 when the charge against Seidu Olajire came before that court for trial, and he submitted to the President that "there is no public official known as Superintendent-General of Local Government Police." He referred to Cap. 70 Laws of the Western Region of Nigeria sections 13-19 inclusive and submitted that the provisions in that Law for the appointment of a Superintendent-General of Local Government Police Forces are ultra vires the Constitution of the Federation of Nigeria, section 98(4) and (7). He asked that the issue raised by him should be referred to this Court for adjudication, and in consequence of what transpired in the court on 6-9-61, this reference was made by order; the President also asks for direction.

When the matter came up before me on 17-10-61, there was a preliminary point to be decided, i.e., as to who should begin, and having regard to the fact that there were no arguments in the court below which would lay bare the fundamental points relied upon by the challenger or on his behalf, I decided that his leading Counsel should begin and show his objections to which the Director of Public Prosecutions on behalf of the Superintendent-General would reply. I considered this to be the fairest way to get the issues placed properly before the court; I did not think it was right to ask the Director of Public Prosecutions to argue blindly.

In his submissions, Mr Olowofoyeku referred to section 98(4) and (7) of the Constitution of the Federation of Nigeria which deal with the establishment of the Nigeria Police and the power of the legislature of a region to make provision for the maintenance by any native authority or local government authority established for a province or any part of a province, of a police force for employment within that province. He referred also to Cap. 70 of the Laws of the Western Region of Nigeria establishing local government police forces within the Region and in particular he stressed the provisions contained in sections 13 to 19 inclusive of that Law and also the Rules made thereunder. He emphasised that section 98(7) did not provide for the appointment of any officer with functions in respect of local government police forces analogous to that of the Commissioner of Police as contained in section 99(1) of the Constitution, i.e., with functions covering the whole Region. He also referred to section 99(4) and submitted that the Commissioner of Police for the Region has a duty for the maintenance of and securing public safety and public order under the directions of the Premier of the Region; he stressed that that duty included prosecution of offenders. Having referred to several rules made under Cap. 70 of the Laws of Western Nigeria he submitted that the duties, functions and powers of the Superintendent-General of Police Forces cover the whole Region and the local government police forces in the said Region, and since section 98(7) of the Constitution did not provide for all these things he said the appointment of the said Superintendent-General was contrary to that provision and therefore ultra vires it. Finally, he submitted that this issue of interpretation of section 98(7) of the Constitution vis-a-vis Cap. 70, Laws of Western Nigeria, sections 13 to 19, raises a substantial question of law which should be referred to the Federal Supreme Court.

In his own submissions, Mr Ademola said he was sure that Mr Olowofoyeku had a misconception as to his duty and the duty of the court in the matter. He said it was not sufficient for the challenger to say that the provisions of sections 13 to 19 of Cap. 70, Western Nigeria Laws, are not provided for in section 98(7) of the Constitution of the Federation of Nigeria, or that a substantial question of law has arisen because of that assertion. He said the court must consider the question submitted before it for consideration and decide on it, nothing more. He cited the case of Gamioba and others, v. Esezi II, and others, (1961) All N.L.R. 584, decided in the FSC on 9-10-61, (copies of which he gave to the court and to Olowofoyeku for easy reference), and stressed that what mattered was the issue submitted to the court for reference by the court below and nothing else; in his view, if that was done the answer to the question posed by the lower Court must be in the negative. He also submitted that even if the points raised by Olowofoyeku in his address were accepted (although he thought they were irrelevant to the issue before the court), the answer of the court to the question posed by the reference must also be No. He finally said that it is only when a substantial point of law is raised that the court can refer it to the Federal Supreme Court not just because a point of law is at issue. These, in a nutshell, are the very impressive arguments submitted by both sides.

Now, what is the issue before me in this reference? It is to determine "whether or not the provisions of sections 13 to 19 of the Local Government Police Law, Cap. 70, Laws of Western Nigeria relating to the appointment and functions of a Superintendent-General of Local Government Police Forces is contrary to the provisions of section 98 of the Constitution of the Federation of Nigeria and ultra vires the Constitution." Contrary and ultra vires are the most important words in the question posed. If I come to the conclusion that the said sections are contrary to or ultra vires the provisions of the section 98 aforesaid, then I am bound to hold that a substantial point of law has been raised and I must comply with the provisions of section 108(1)(a) of the Constitution of the Federation of Nigeria and refer the question to the Federal Supreme Court. Otherwise, I am bound to act in accordance with the provisions of section 108(1)(b) and send the matter back to the lower court with my directions. To be contrary to, to me, means to be against or opposed to in nature and tendency, different, hostile and prejudicial. Section 98(7) of the Constitution of the Federation of Nigeria empowers a Regional legislature to make provision for the maintenance of local government police forces in provinces or any parts of the provinces. Emphasis is on the word 'maintenance' and I agree with the Director of Public Prosecutions when he submitted that the maintenance of such forces implies their establishment; there can be no quarrel with this interpretation. And to provide for the maintenance of those forces clearly implies the provisions for the selection, training, discipline, and supervision of the members of those forces. The legislature of the Western Region of Nigeria passed the Local Government Police Law to commence on 1-9-55 and it is plain that it was then within their legislative competence. It is one of those laws saved by the provisions of section 3 of the Nigeria (Constitution) Order in Council, 1960, of which the Constitution of the Federation of Nigeria is the Second Schedule. If it is read and construed with section 98(7) in question in this reference, can one say that it is contrary to the letter or spirit of this latter law? Or can we say that it is ultra vires it? In my view, where there is a power conferred, there is the implied construction that all means of exercising that power to the best advantage will be conceded to the donee of such power. It is not necessary for the details of such provisions to be set out in a Constitution; it is enough if the material outline of that power is clearly set out. Although there is no direct local authority for this proposition, I think it will be found to be consistent with human experience. There is however authority for it to be gleaned from a case decided in one of the great federal democratic systems of the world-I refer to the dictum of Marshall, C. J. of the United States of America in the case of McCulloch v. Maryland, in 1819, 4 Wheat 316, when he said as follows:-

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind ........ Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves

........

........

But we think the sound construction of the Constitution must allow to the ........ legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.

Bearing these words of wisdom in mind let me now examine section 98(7) of the Constitution. When that section gives powers to the Regional legislature to make provisions for the maintenance of local government police forces for provinces or any part of those provinces, it confers the great outline of power but leaves it to the legislature concerned to forge the means by which that power is to be exercised. The means and the details of those means will be found in Cap. 70 of the Laws of Western Nigeria insofar as that Region is concerned. Even though that Law was passed since 1955, is there anything in its provisions prohibited by section 98(7), or inconsistent with it? I fail to see it. If the local forces are to be run well, so as not to constitute a disgrace to the Region, is it wrong to provide for their training, discipline and supervision? I do not think so. If there has been a Superintendent-General in each province, or attached to each force who will perform the same functions as the official created by section 13 of Cap. 70 aforesaid, can there be anything wrong with that? I think not. I do not agree with the submission that because the one official has supervisory functions over all local government police forces in the Region therefore those forces have ceased to be provincial in their role and functions. As far as I can see, he is the Superintendent-General of each of such force established under the Law, and the fact that he is the supervisor of each force in the Region does not convert such force into a Regional force. It will be noted that he has no power to shift one force or any part of it from one province to another, or from one local government Council jurisdiction to another. None of the functions conferred on this official is prohibited by section 98(7) relied upon by Mr Olowofoyeku and his colleagues. Rather than be prohibited, I hold that those functions are legitimate, appropriate and within the scope of the provision of that section. The fact that the said functions for the maintenance are not set out in the section is quite understandable from the very nature of parliamentary and constitutional draughtsmanship, as emphasised by Marshall, C. J. in the case I have quoted above, and I can find no substance in the submission that because those functions are set out therein there must necessarily be an inference that they are excluded. The object, scope and spirit of the provision in the section are all that matter, and as far as I can see nothing in the Local Government Police Law, Cap. 70 Laws of Western Nigeria is inconsistent with or contrary to the object, scope and spirit of section 98(7) of the Constitution of the Federation of Nigeria. As for being ultra vires, it is not. On the other hand, it is patently intra vires. All circumstances must be taken into consideration to determine whether what Cap. 70 provides, particularly sections 13 to 19 thereof, is within the scope of the powers entrusted to the legislature of the Western Region or not in accordance with the principles laid down by Campbell, C. J. in the celebrated case of Norwich Corporation v. Norfolk Railway Co., 4 E. & B. 443. In my Judgment, and considering the vast territory that Western Nigeria covers and the necessity to have uniformity in the training, discipline and supervision of local government police forces established under the Law, I can see nothing ultra vires in the appointment and the conferment of powers on the Superintendent-General to carry out the effective maintenance of the said forces. That is far better, in my view, than a medley of Chief Officers at the head of each local force each doing things in his own way. Mr Olowofoyeku has touched on section 19 of the Local Government Police Law and said that the Superintendent-General has not been placed under the command and superintendence of the Commissioner of Police, but I cannot understand his submission on that point. Suppose that section has been put into operation, and the Superintendent-General has been brought under the command and superintendence of the Commissioner of Police, Western Nigeria, would that have saved his appointment from being contrary to and ultra vires section 98(7), even if his functions remain the same as they are? Is it being suggested that this officer will exercise his functions better under the command and superintendence of the Commissioner than under the control of the Governor? I am sure learned Counsel is not suggesting that! If his appointment under the Law (Cap. 70) is deemed not to be ultra vires section 98(7) if he is brought under the command and superintendence of the Commissioner of Police, I cannot see how it can be ultra vires simply because he is under the control of the Governor instead. If that is being suggested (which I hope not) it will betray the mala fides of the objection raised and will come under the objection stressed by the Federal Supreme Court in the case of Otugor Gamioba and others v. Esezi II, etc., and others (supra) cited by the learned Director of Public Prosecutions when it said:-