THE MILITARY GOVERNOR, ONDO STATE ATTORNEY-GENERAL, ONDO STATE v. VICTOR ADEGOKE ADEWUMI (SC 130/1986) [1988] 44 (24 June 1988);

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  • THE MILITARY GOVERNOR, ONDO STATE ATTORNEY-GENERAL, ONDO STATE v. VICTOR ADEGOKE ADEWUMI (SC 130/1986) [1988] 44 (24 June 1988);

THE MILITARY GOVERNOR, ONDO STATE ATTORNEY-GENERAL, ONDO STATE (APPELLANT)

v.

VICTOR ADEGOKE ADEWUMI (RESPONDENT)

(1988) All N.L.R. 274

 

Division: Supreme Court of Nigeria

Date of Judgment: June, 24, 1988

Case Number: (SC 130/1986)

Before: Bello, C.J.N, Eso, Karibi-Whyte, Kawu, Oputa, Nnaemeka-Agu, Craig; JJ.S.C.

 

The respondent, Victor Adegoke Adewumi, sued the appellants and 15 ors challenging the validity of the selection of the then Ewi of Ado-Ekiti. During the pendancy of the case 1st Appellant, the Governor of Ondo State promulgated Edict No.11 of 1984 which made provisions ousting the jurisdiction of the courts in chieftaincy matters. The respondent went to court again to challenge the validity of the Edict by seeking a declaration that section 11(7) of the Edict was null and void and for other reliefs.

After hearing, the learned trial Judge in a detailed reserved judgment granted the reliefs sought by the respondent. The appellants appeal to the Court of Appeal was dismissed. They therefore appealed further to the Supreme Court. The issue for determination by the Supreme Court is whether or not the Military Governor of a State in the Federation can pass an Edict which ousts the jurisdiction of a state High Court over a matter it would otherwise have had jurisdiction to adjudicate upon by virtue of the unsuspended provisions of the constitution.

HELD

(1)     Section 1 (i) and 2 of Decree No. 1 of 1984 preserves the existence of Section 6 and 236 of the 1979 constitution. By those provisions of the constitution chieftaincy questions are matters within the jurisdiction of a state High Court.

(2)     Any law or Edict which purports to remove chieftaincy matters from the jurisdiction of a state High Court is inconsistent with the provisions of Decree 1 of 1984 section 1 (i) and (2) and sections 6 and 236 of the constitution of 1979 and therefore void.

(3)     Per Bello, C.J.N. "The Decree (No 1 of 1984) has not specifically rendered an Edict which is repugnant to the unsuspended provisions of the constitution void tot he extent of the repugnancy as it has done in the case of inconsistency with a Decree. However, on account of superiority accorded to the unsuspended provisions of the constitution by its section 1 (i) and section 1 (2) of the Decree over any Edict and also the power of a military Governor to make an Edict has been subjected to the constitution by section 2 (3) of the Decree, one is bound to conclude any Edict which is repugnant to the unsuspected provisions of the constitution is void to the extent of the repugnancy. On the same principle as in the case of an Edict which is inconsistent with a Decree, a court of law can entertain a suit questioning the validity of an Edict vis-a-vis the unsuspended provisions of the constitution.

Appeal dismissed.

Olu Fagbe Esq. Deputy Solicitor-General Ondo State for the Appellant. E. Abiodun Esq. for Respondent.

Cases referred to:-

(1)     Adamolekun v. The council of University of Ibadan (1968) NMLR 253

(2)     Adanji v. Hunvoo (1908) I NLR 74

(3)     Agip Nigeria Ltd. v. Attorney-Gen. of Lagos State (1977) 11-12 SC. 33

(4)     Anisminic v. Foreign Compensation Commission (1969) 2 A.C.147 p 170 H.L.

(5)     Attorney-General of Mid-Western state v. Essi (1977) 4 S.C.71

(6)     Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 6 S.C. 175 at p 188

(7)     Bronik Motors Ltd. & anor. v. Wema Bank Ltd. (1983) 1 SCNLR 296

(8)     Chief Adebiyi Adejumo v. H.E. Col. Mobolaji Johnson, Military Governor of Lagos State (1972) 3S.C45

(9)     Chief Ereku v. Military Governor, Mid Western State (1974) 10 S.C. 59.

(10) Council of University of Ibadan v. Adamolekun (1967) All N.L.R. 213 at pp 223-4.

(11) E.O. Lakanmi & anor v. Attorney-General (West) & 2 ors (1974) 4 ECS. LR.713

(12) Iffie v. Attorney-General of Bendel State (1987) 4 NWLR (Pt. 67) 972

(13) Kanada v. Governor Kaduna State (1986) 4 NWLR

(14) London Borough of Ealing v. Race Relations Board (1972) 2 All ER 105

(15) Madukolu v. Nkemdilim (1962) All NLR 587

(16) Nafiu Rabiu v. The State (1981) 2 NCLR293

(17) Onyiuke v. Eastern States Interim Assets & Liabilities Agency (1974) 1 All NLR Part 2

(18) Onyiuke v. Esiala (1974) 1 N.I.N.L.R. pt.2 158

(19) Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1

(20) Pyx Grante Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260 H.L.

(21) R. v. Chancellor of it Edmundsbury v. Ipswich Diocese, exp. White (1948) 1. K.B. 195 at pp.205-206

(22) Re. Vexatious Actions Act 1969, R.E. Boaler (1915) 1. K.B. 21 at p. 36.

(23) Savannah Bank Ltd. v. Pan. Atlantic Shipping and Transport Agencies Ltd. (1987) 1 S.C. 198.

(24) Thompson v. Goold & Co. (1910) A.C. 409 at 420.

Statutes referred to:-

(1)     Constitution of the Federal Republic of Nigeria 1979.

(2)     Chieftaincy Edict of Ondo State (Edict No.11 of 1984).

(3)     Decree No. 1 of 1984 (Constitution Suspension and Modification) Decree.

(4)     Decree No.13 of 1984 (Supremacy & Enforcement of Powers) Decree.

Nnaemeka-Agu. J.S.C. On the 11th day of April, 1988, this Court dismissed the appeal of the appellants with N500.00 costs and fixed today for giving reasons for the judgment. I now give my reasons.

The background facts leading to this appeal is undisputed. The respondent, Victor Adegoke Adewunmi, sued the appellants and fifteen others challenging the validity of the selection of the then Ewi of Ado Ekiti. During the pendency of the case, the 1st appellant, the Governor of Ondo State, promulgated Edict No.11 of 1984, which made provisions ousting the jurisdiction of courts in chieftaincy matters. The respondent went to court again to challenge the validity of the Edict by seeking a declaration that section 11(7) of the Edict was null and void and for other reliefs.

The endorsements to the writ of summons, as amended, read as follows: "The plaintiff's claim is against the defendant for:

(a)     A DECLARATION that section 11 subsection 7 or Edict No. 11 of 1984 (i.e. The Chiefs Edicts, 1984) is illegal, unconstitutional, null and void in that the Military Governor of Ondo State is not competent to make our promulgate section 11 subsection 7 or the Chiefs Edict 1984 which reads thus:

"No civil proceedings shall lie or be instituted in any court of law for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any provision of this section and if any such proceedings are instituted prior or subsequent to the commencement of this Edict, the proceeding shall abate, be discharged and made void accordingly."

(b)     A DECLARATION that section 12 subsection 3(b) of the Chief Edict 1984 is illegal, unconstitutional, null and void in that the Military Governor of Ondo State is not competent to make or promulgate section 12 subsection 3(b) of the Chiefs Edict 1984 which read thus:

"3.     Where a person has been approved as a recognised Chief in accordance with this part, any other person who-

(a)     ...

(b)     by any means illegally challenges or impugns the validity of the appointment of such Chief, shall be guilty of an offence and shall be liable on conviction to imprisonment for two years."

(c)     AN INJUNCTION restraining the defendants, their servants, agents and or officers from executing or carrying out or taking any step pursuant to section 11 subsection 7 and section 12 subsection 3(b) of the Chiefs Edict 1984."

After hearing, the learned trial Judge, Afonja. J., in a detailed reserved judgment, granted to the plaintiff/respondent the reliefs that he claims. The defendants/appellants appeal to the court of Appeal was dismissed; Coram-Omo-Ebogh, J.C.A., Belgore, J.C.A. (as he then was) and Ikwechegh, J.C.A. They further appeal to this Court.

The issues for determination in the appeal have in my opinion been better set out in the brief of the respondent thus:

"(a) Whether or not the Military Governor can derogate from the powers conferred on the State High Court by the Constitution by an Edict in the light of Decree No. 1 of 1984?

(b)     Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984?"

Now the straight question raised by the appeal is whether or not the Military Governor of a State in the Federation can pass an Edict which ousts the jurisdiction of a State High Court over a matter it would otherwise have had jurisdiction to adjudicate upon. The appellants contend that he can do so because the repeal of section 4(8) of the Constitution of 1979 by Decree No. 1 of 1984 has impliedly not only enabled the Military Governor of a State to pass such a legislation but also has modified the unlimited jurisdiction of the High Court of a State under section 236(1) of the Constitution. In any event, they contend, the intendment of Decree No. 13 of 1984 was to render any Decree or Edict immune from challenge in any court of law. On the other hand, the respondent contends that by the very words of both Decrees no. 1 of 1984 and No. 13 of 1984 it was intended that there should be some limitations to the exercise of legislative powers by a Military Governor of a State. One of those limitations is where the Edict in question is in conflict with the provisions of a Decree or some unsuspended provisions of the Constitution of 1979. It was, therefore, contended that the Edict in question fell foul of both Decree No. 1 of 1984 and the unsuspended provisions (sections 6 and 236) of the Constitution of 1979.

For a clearer picture of the implications of the Ondo State Chiefs Edict (No.11) of 1984, it is useful, I believe, to cast a cursory glance at the chequered history of litigation in chieftaincy matters in this country. From what appears to me to be as a result of misapprehension of colonial courts as the nature and content of chieftaincy institutions in Nigeria, they declined to exercise jurisdiction over chieftaincy questions. See: Adanji v. Hunvoo (1908) 1 N.L.R. 74. Their reason for so declining was that they thought, erroneously in my view, that it was a position of "mere dignity, a position of honour, of primacy among a particular section of the native community..." (see Cowley v. Cowley (1901) A.C. 450). But most Nigerians know that most chieftaincy institutions carry with them not only dignity and honour but substantial proprietary interests. Yet the idea in Adanji's case (supra) persisted and found its way into our Federal and Regional Constitutions and Laws each of which removed chieftaincy questions from matters justifiable by the courts. The Chiefs Law of Western Region of Nigeria, 1967. (i.e. Cap. 20 of the Laws of Western Region, 1963, which became, on creation of Ondo State, Cap. 20 of the Laws of Ondo State, 1978) was one of such Laws. By section 28 of the Law jurisdiction of all courts, original, appellate or by way of transfer, was excluded with respect to all matters relating to selection, appointment, installation, deposition, suspension or abdication of a chief, or, with a few exceptions, recovery of property appendant to a chieftaincy or the exercise of the functions of a chief. But the constitution of the Federal republic of Nigeria, 1979, swept away all these laws which ousted the jurisdiction of courts over chieftaincy questions. Section 6(6)(a) and (b) provide as follows:

"(6)    The judicial powers vested in accordance with the foregoing provisions of this section:

(a)     shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law;

(b)     shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceeding relating thereto, for the determination of any question as to the civil rights and obligations of that persons."

And section 236(1) provides as follows:

"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."

Thus in a swoop jurisdiction over chieftaincy questions became vested in the courts, just as any other causes or matters requiring the determination of the civil rights and obligations of any persons, government or authority. Section 236(1), it appears, contemplates that the unlimited jurisdiction could be added to, no subtracted from, by the competent authority.

The subtraction can only be done by a constitutional amendment. It was in that state of affairs that the substantive suit challenging the selection of the respondent's adversary was instituted. But the passing of the Edict No. 11 of 1984 sought to revert matters to the pre-1979 position. Indeed the learned Counsel for the appellants has not denied that the effect of sub-section 7 of section 11 of the Edict was to take away chieftaincy matters from the jurisdiction of ordinary courts. The power of decision in the matter was vested in the Executive Council of the State. The decision of the Executive Council in the matter shall be final and shall not be questioned in any court of law. The question is; can the Military Governor of Ondo State, within his constitutional competence, validly pass such an Edict ousting the jurisdiction of the High Court?

In my opinion, the answer to this question depends upon two other questions, namely:

(i) What is the organic law (grundnorm) of Nigeria as under Decree No. 1 of 1984; and

(ii) What is the limit, if any, to the legislative power of the Military Governor of a State or any other relevant Decree?

Now it is provided in section 1 (1) and (2) of Decree No. 1 of 1984-as follows:

"1.     (1)     The provisions of the Constitution of the Federal Republic of Nigeria 1979 mentioned in Schedule 1 to this Decree are hereby suspended.

(2)     Subject to this and any other Decree, the provisions of the said constitution which are not suspended by subsection (1) above shall have effect subject to the modifications specified in Schedule 2 to this Decree."

It appears clear to me that by these provisions it is the intendment of Decree No. 1 of 1984 that the organic law of Nigeria shall be:

(i) Decree No. 1 of 1984 or any other Decree; and

(ii) Unsuspended sections of the constitution of the Federation.

It follows from this that whatever is in accord with the above provision is intended by the Decree, but whatever is in conflict with it is unconstitutional under the Decree and valid.

The answer to the second question is provided by section (2) 2 (a) and (b) and (3) and (4) of Decree No. 1 of 1984 which state:

"2.     (2)     The Military Governor of a State:

(a)     shall not have 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 low 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 92) above and 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) or (ii) above shall prevail and the state law shall, to the extent of the inconsistency, be void."

In other words, a Military Governor of a State is without power to legislate on any matter included in the Exclusive Legislative List. He has also no power to make any law with respect to any matter in the concurrent Legislative List relating to Federal Military Government. In particular, he has no power to make any law which is inconsistent with any law made by the Federal Military Government before or after December, 31st 1983. In the last case, the Edict made by the Military Governor shall be void to the extent of the inconsistency. It is this last limitation that is most relevant in this appeal. By the clear provisions of section 1 (1) and (2) of Decree No. 1 of 1984, it was intended that sections 6 and 236 of the constitution shall remain extant. By those provisions of the constitution chieftaincy questions among other, shall be matters within the jurisdiction of the High Court of every State. It follows, therefore that any law or Edict which purports to remove those matters from the jurisdiction of a state High Court is inconsistent with provisions of Decree 1 of 1984 (section 1 (1) and (2), and sections 6 and 236 of the constitution of 1979.

That an action can always lie to challenge an Edict on the ground that it is inconsistent with the provisions of a Decree is recognised by the 4th preamble of the Federal Military Government (Supremacy and Enforcement of Powers) Decree (No. 13) of 1984, where in it was recited:

"And whereas by section 5 of the said Constitution (Suspension and Modification) Decree 1984, no question as to the validity of any Decree or any Edict (in so far as by section 2 (4) thereof the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria;"

In short whereas one cannot bring an action to challenge the validity of an Edict, it is the intendment of the Supremacy Decree itself that one is entitled to bring such an action when, as in this case, his case is that the Edict is inconsistent with the provisions of a Decree. It is noteworthy in this respect that Decree No. 13 of 1984, i.e. the Supremacy Decree, is a re-enactment, Verbatim in most of its provisions, of Decree No. 28 of 1970, also called Supremacy Decree. Construing the 1970 Supremacy Decree (Decree No. 28) the supreme court in Chief Adebiyi Adejumo v. H.E.Col. Mobolaji Johnson, Military Governor of Lagos State (1972) 3 S.C. 45 recognised the possibility of attacking the provisions of an Edict if it is inconsistent with the provisions of a Decree where it held, per Coker, J.S.C. at p.55 thus:

"By virtue of the provisions of Decree No. 28 of 1970 one can only attack an Edict if it is inconsistent with a Decree..."

But a case which, in my opinion is dead in point in this appeal in that it was decided on inconsistency of an Edict with a Decree and a constitutional provision is Onyiuke v. Eastern States Interim Assets & Liabilities Agency (1974) 1 All N.L.R. (Part 2) 151. In that case the plaintiff commenced proceedings in a port Harcourt High Court for declaration that Eastern Nigeria Edict No. 11 of 1966 contravened Decree No. 1 of 1966 and section 31 of the constitution of 1963. The respondent brought a motion praying the court to dismiss the action on grounds of ouster of jurisdiction. Relying on Decree No. 28 of 1970 (the supremacy Decree) the respondent contended that the appellant could not challenge the provisions of an Edict. The High Court upheld the respondents objection and dismissed the case for want of jurisdiction. On appeal to the Supreme Court, Elias, C.J.N. held that as the gist of the action was that the Edict was inconsistent with the provisions of a Decree and an unsuspended provision of the Constitution of 1963, the action was maintainable. The learned C.J.N. (as he then was) held at p. 158:

"We are in agreement with learned Counsel that the courts are competent to declare an Edict invalid on ground of its inconsistency with a Decree and that we so expressly held in the Council of the University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 213, at pp. 223-4."

Later, interpreting section 3 (4) of decree No. 1 of 1966 which is re-enacted in section 3 (4) of Decree No. 1 of 1984, set out above he held:

"It is equally clear that section 3 (4) makes a State law liable to be inconsistent with a Federal law and void to the extent of any inconsistency."

He also held that the Edict was void for being inconsistent with the federal Constitution i.e. section 31 of the 1963 constitution of the Federation.

The above interpretations are of great assistance in this appeal, and I shall apply them.

The appellants have argued that Chieftaincy is not on the Exclusive Legislative List and is therefore not a matter on which the Federal Government alone could legislate. Matters relating to Chieftaincy are statutory rights which are open to the Military Governor, they have contended. This submission, in my view, lost sight of the fact that the very essence of sub-sections (3) and (4) of section 2 of Decree No.1 of 1984, set out above, read together with the 4th Preamble of decree No. 13 of 1984, is to underscore the supremacy of Decrees, the Constitution, and other Federal enactments over Edicts of a State Government. It is, of course, a well-known principle of our federalism under the doctrine of covering the field, that where the Federal Government has validly legislated on a matter, any State legislation on the same matter which is inconsistent with the Federal legislation will be void to the extent of the inconsistency. As for reference to the Exclusive Legislative List, it appears to me to have been based on a misconception. For it is expressly provided in sub-section (1) of section 2 of Decree No. 1 of 1984 that:

"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."

This has altered the legislative pattern under section 4 (2) and 4 (4) of the 1979 constitution which limited the Legislative power of the National Assembly:

"any matter included in the Exclusive Legislative List" and "any matter in the Concurrent Legislative List set out in the First column of Part 11 of the second schedule ... to the extent prescribed in the second column opposite thereto."

It can be seen, therefore, that whereas the legislative powers of the Federal Government were under the 1979 constitution tied to the legislative, and limited thereby, the legislative powers of the Federal Military Government were under Decree No. 1 of 1984, not limited or restricted by any legislative list but was exercisable on any subject whatsoever and over the whole country.

It is also not true, as the learned Counsel for the appellants has submitted, that section 11 (7) of the Chiefs Edict No. 11 of 1984 is not in conflict with Decree Nos. 1 and 13 of 1984.

I have shown that whereas the Decrees Nos. 1 and 13 of 1984 and sections 6 and 236 of the 1979 constitution intend that chieftaincy matters should be within the jurisdiction of the courts, the Edict purports to oust such jurisdiction of courts in such matters.

It is puerile, in my view, to argue that because section 11 (7) of the Chieftaincy Edict was lifted verbatim from section 1 (2) of Decree No. 13 of 1984, the Edict is automatically valid simply because the Decree is valid. For, as I have shown, the Federal Military Government and the Military Governor of a State have not got co-equal legislative powers: the validity of an Edict passed by the latter is determinable, inter alia, from the viewpoint that it is not in conflict with a Decree of the former. It follows that the latter cannot pass every legislation by an Edict, that the former can pass a Decree.

The argument by the learned Counsel for the appellants that, because subsection 8 of section 4 of the 1979 constitution, which provides that the exercise of legislative powers of the Federal Government shall be subject to the jurisdiction of the courts and that the National Assembly shall be incapable of enacting any law which ousts the jurisdiction of the courts, has been suspended, then it follows that section 236(1) of the constitution which confers unlimited jurisdiction on State High Court has been modified or amended is, in, my opinion, as non sequitur. It is to be noted that section 236 (1) of the constitution of 1979 which gives unlimited jurisdiction to State High Courts is a re-affirmation of the position of things in countries such as England where, prima facie no case or matter is deemed to be beyond the jurisdiction of a superior court of record unless it is expressly shown to be so:

See: R.v. Chancellor of St. Edmundsbury & Ipswich Diocese, exp. White (1948) I K.B. 195, at pp. 205-206. On clear implication of the status of a superior court conferred on out State High Courts by the constitution is that because they are vested with unlimited jurisdiction as to the kind and nature of the actions and matters of which they can take cognizance, such a jurisdiction can only be taken away by express words.

A number of pronouncements of some eminent Justices of this Court in the case of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C.N.R. 269 are instructive. I shall refer specifically to the opinion of Obaseki, J.S.C., at page 219 where he said:

"The 1979 constitution was not ordained by the National Assembly and the House of Assembly of the States but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the State High Courts in exercise of their sovereign powers cannot therefore be limited otherwise than by the constitution."

I agree that ordinary a constitutional amendment is a very serious affair. And when it is intended to divest a court from jurisdiction which has been given to it by the constitution, it is a more serious affair still. It must be by express and unambiguous words and by a competent amendment of the Constitution. Under our present circumstance it shall be by a Decree which amends the relevant section of (section 236) (1) of the Constitution. For as a general principle, even where there is a statute purporting to oust the jurisdiction of a court, the language of any such statue will be jealously watched by the courts:

See: Re Vexatious Actions Act 1969, R.E. Boaler (1915) 1K.B. 21, at p.36 Pyx Granite Co. Ltd. v. Ministry of Housing & Local Government (1960 A.C.260, H.L.; Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 6 S.C.175, at p.188. In Anisminic v. Foreign Compensation Commission (1969) 2 A.C. 147, at p. 170, H.L., it was held that where a provision purporting to oust the jurisdiction of the court is reasonably capable of having two meanings, that meaning shall be preferred which is capable of reserving the ordinary jurisdiction of the court. As this is so, it looks to me as utterly ridiculous to suggest that because the limitation to the power of the legislator, under section 4 (8) of the 1979 constitution, to make laws ousting the jurisdiction of the courts has been suspended by Decree No. 1 of 1984, then it follows automatically that section 236 (1) of the constitution which gives unlimited jurisdiction to State High Courts has been amended. If such an amendment were contemplated it should have been done by express words. But I don't think that it was ever intended. The section itself, by the words "in addition to such other jurisdiction as may be conferred upon it by law" intends that the general jurisdiction thereby conferred could be added to: there is nothing therein or in any other provisions of the Constitution or in any Decree amending it to show that the jurisdiction so expressly conferred could be subtracted from. It is significant in this respect to note that the word "law" in section 236(1) is in small letters. It therefore connotes any from of law and includes both a Law or Edict of a State and an Act or Decree of the Federal authority. Because it is in small letters, I believe it is intended that both a State and the Federal Governments can pass laws conferring further jurisdictions upon the High Court but, as I have said, there is nothing to enable a State Government to pass a law or an Edict which subtracts from the jurisdiction, particularly when such a law or an Edict conflicts with a Federal Decree or Act. My conclusion is, therefore, that the Military Governor of a state is entirely without competence to subtract anything from the unlimited jurisdiction conferred on the High Court by section 236 (1) of the Constitution.

So, for all I have said above, I dismissed the appeal and affirmed the decisions of both the court of appeal, Benin Division, and the High Court and awarded N500.00 costs to the respondent.

Bello, C.J.N. I had a preview of the Reasons for Judgment just delivered by my learned brother, Nnaemeka-Agu J.S.C. I agree.

The constitutional effect of an Edict which is inconsistent with any of the unsuspended provision of the constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the constitution, may be summarised. Since the promulgation of the Constitution (Suspension and Modification) Decree 1984, which has retrospective effect from 31st December, 1983, as amended by the Constitution Suspension and Modification) Decree 1985, a Decree has supremacy Edict. Consequently, any Edict which is inconsistent with the provisions of any Decree or repugnant to the unsuspended provisions of the constitution is null and void to the extent of the inconsistency or repugnancy.

The relevant provisions of the Constitution as modified by the Constitution (Suspension and Modification) Decree 1984, hereinafter referred to as the Decree, may be set out. Section 1(1) of the Constitution as amended by this or any other Decree is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria."

Section 1 of the Decree further reinforces the binding effect of the unsuspended provisions of the Constitution in these terms:

"1.     (1)     The provisions of the Constitution of the Federal Republic of Nigeria 1979 mentioned in Schedule 1 to this Decree are hereby suspended.

(2)     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."

Section 2 of the decree confers power to make laws on the Military Governor of a State and it also imposes

limitations in the exercise of the power. The relevant provisions of the section are:

"2.     (1)     The federal Military Government shall have poser 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 Executive 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 II 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 the 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 is so made, or

(ii) made by the Federal Military Government on or after that date, the law made as mentioned in sub-paragraph (i) or (ii) above shall prevail and the State law shall, be void."

It is clear from the specific unambiguous provision of section 2(4)(b) that any Edict which is inconsistent with any Act or Decree is void to the extent of the inconsistency. On the authorities of Adejumo v. Military Governor of Lagos State 1972 3 S.C.45 and Onyiuke v. Eastern States Interim Assets and Liabilities Agency (1974) 1 All N.L.R. (Part 2) 151, a court of law can entertain an action as to the validity of an Edict which is inconsistent with a Decree. Consequently, the purported generality of section 5 of the Decree which states:

"5.     No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria",

Must be construed in the light of the provisions of section 2 (4)(i) and (ii) of the Decree which qualify the generality of section 5. Despite the generality of section 5, a court of law has jurisdiction to determine the question as to whether an Edict is inconsistent with a Decree and, if the Edict is inconsistent, to declare it void to the extent of the inconsistency.

The Decree has not specifically rendered an Edict, which is repugnant to the unsuspended provisions of the constitution, void to the extent of the repugnancy as it has done in the case of inconsistency with a Decree. However, on account of the superiority accorded to the unsuspended provisions of the Constitution by its section 1 (1) and section 1 (2) of the Decree over any Edict and also the power of a Military Governor to make an Edict has been subjected to the constitution by section 2 (3) of the Decree, one is bound to conclude that any Edict which repugnant to the unsuspended provisions of the Constitution is void to the extent of the repugnancy. On the same principle as in the case of an Edict which is inconsistent with a Decree, a court of law can entertain a suit questioning the validity of an Edict vis-a-vis the unsuspended provisions of the constitution.

The Chiefs Edict 1984 of Ondo State purported to oust the jurisdiction of the High Court of Ondo State on chieftaincy matters which jurisdiction has been conferred on the court by unsuspended section 236 of the Constitution. Accordingly, the Edict is repugnant to the section and must be declared unconstitutional and void to the extent of the inconsistency. The High Court of Ondo State quite rightly declared the Edict unconstitutional and void. Its declaration was affirmed by the Court of Appeal.

For the foregoing reasons and the more comprehensive reasons stated by my learned brother, Nnaemeka-Agu J.S.C., I dismissed the appeal.

Kayode Eso, J.S.C. On the 11th day of April 1988 we dismissed this appeal and reserved our Reasons for so doing. I hereby give my reasons. The lead Reasons have been read by my learned Brother Nnaemeka-Agu J.S.C. and I am in agreement. The Respondent Victor Adegoke Adewumi had sued the Military Governor of Ondo State and the Attorney-General of the State challenging the validity of the election to the stool of Ewi of Ado Ekiti. Curiously enough during the pendency of the case, the Governor of Ondo State promulgated an Edict 1984 No.11 which ousted the jurisdiction of the Court. What Victor Adewumi did was to challenge that Edict by a declaratory action in the sense that it is illegal, unconstitutional, null and void.

The High Court granted the belief sought and the Governor and the Attorney-General appealed against that decision. Their appeal was dismissed. There is therefore this appeal to this Court which we have also dismissed.

What actually happened in this case was the ouster by Edict of the jurisdiction of the court while a matter was pending before the court, in which that court, by virtue of the law and constitution had jurisdiction.

In a Federation like ours where, in the constitution, the powers of each organ, that is, of the Executive, Legislature and Judiciary have been so expressly stated, recourse could only be made to preserve the Federation by an observance of the provisions of the constitution.

There is no doubt that the Legislature cum the Executive (now merged into one under the militia) could enact laws which could deprive the courts of jurisdiction. For indeed, by Decree, the constitution provisions themselves could be amended thereby depriving the courts of the jurisdiction which have been given, even by the constitution itself. This is not imaginary. It did happen after the case of E.O. Kakanmi & Anor. v. Attorney-General (West) & 2 Ors.

(1974) 4 ECSRL 713 where by Decree No.28 of 1970 that is the Federal Military Government (Supremacy and Enforcement of Powers) Decree of May, 9, 1970, when the military Government set aside the judgment of the supreme court. That was the exercise of one jurisdiction (of making laws) in collision with another jurisdiction of adjudicating on the laws thus made. But it was by a Decree which was validly made, however unpalatable to jurisprudence. In other words, there we had a clash of two giants, the Executive cum Legislative on the one hand and the Judiciary on the other hand, and both created by the constitution and acting within their respective jurisdictions. Without doubt, it was for the Judiciary to adjudicate, as it did in the case but it was also for the Legislature to legislate, and this it did, though both acted on scales in contrary motion.

One thing is however important about the Lakanmi case. It was after the determination by the Judiciary that the Legislature moved into nullify as it has power to do the decision of the Court.

That is not what happened in this case. The Chieftaincy Edict, No. 11 of 1984 was enacted during the pendency of the action in court, a move made deliberately to stop the court from continuing with the case.

Whether it was a wise move or not for any Executive cum Legislature to act in this fashion is not really a matter for debate here. The issue before this Court as was before the law Courts is whether or not the Edict in question which purported to move in that direction had vires to do what it purported to set out to do.

This takes me to the argument of the Appellant in this case for the issues before the court are:

(a)     Whether or not the Military Governor of the State by the application of Decree No. 1 of 1984 has powers under an Edict (Edict No. 11 of 1984 inclusive) to diminish the jurisdiction of a court which jurisdiction is conferred by the constitution.

(b)     Whether or not the state High Court has jurisdiction to declare as inconsistent provisions of an edict vis-a-vis a Decree or the unsuspended part of it relying on the provisions of Decree No. 13 of 1984.

The answer to this would be by an examination of Decree No. 1 of 1984, Decree No. 13 of 1984 and the Edict No. 11 of 1984.

Decree No. 1 of 1984 sections 1 (2) and 5 provide:

"1.     (2)     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 modification specified in schedule 2 to this Decree.

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 Executive 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 II 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 effects 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 effects 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) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency, be void.

5.      No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria."

And so any law made by a state Military Governor which of course would be by an Edict after 1983 or had been made by the State House of Assembly before 1983 which is inconsistent (in this case) with a Decree or the unsuspended part of the constitution is void. In other words, we gave as the organics law of the land-

(a)     Decree No. 1 of 1984; and-

(b)     Unsuspended provisions of the Constitution.

Now section 236 of the Constitution which ground jurisdiction is unsuspended. It provides:-

"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."

Edict No. 11 of 1984 which purports to delimit this jurisdiction conferred by the constitution is void. The Edict is not a

beanstalk planted by Jack. It cannot outgrow itself. It remains puny vis-a-vis the constitution or the portions thereof unsuspended and any Decree. As for Decree No. 28 of 1970, nothing therein stops an attack on an Edict if it is inconsistent with a Decree see Chief Adejumo v. H.E. Col. Mobolaji Johnson 1972 1 S.C.45.

For these reasons and the further reasons given in the lead Ruling of my learned brother Nnaemeka-Agu J.S.C., I dismissed the appeal of the Appellants with N500.00. Costs on 11th April 1988.

Karibi-Whyte, J.S.C. On the 11th April, 1988 I dismissed this appeal and indicated that I will give my reasons today. I accordingly hereunder give my reasons.

The facts of the appeal have been very lucidly and in detail stated in the judgment of my learned brother Nnaemeka-Agu J.S.C. It is therefore unnecessary for me to repeat them in similar detail. It is however pertinent for a proper appreciation of the points of law raised to restate only some of the salient features of the circumstances which have resulted in this litigation between the appellants and the respondents.

Respondents and one Samuel George Adelabu were contestants to the vacant throne of the Ewi of Ado-Ekiti. Samuel George Adelabu was selected. Respondent, herein then on May 9, 1984 filed on action as plaintiff, challenging the validity of the selection of Samuel George Adelabu to fill the vacant Throne. This was suit No. HAD/48/84. He complained of improprieties in the procedure for the selection. The defendants in that action were Samuel George Adelabu, the Attorney-General of the State, Commissioner for Local Government and Chieftaincy Affairs, Secretary Ekiti Central Local Government and some others. Respondent filed his statement of claim on June 28, 1984. Prior to this on June 13, 1984 respondent was granted an interim injunction restraining Samuel George Adelabu from parading himself as the Ewi of Ado-Ekiti. An interim stay of the appointment pending determination of the substantive suit was granted.

Before all the defendants had filed and served their statement of defence, in suit No. HAD/48/84 the Chiefs Edict No. 11 of 1984, made with retrospective effect from January 1, 1984 was signed by the Governor on the 16th July, 1984. This Edict purported retrospective to exclude the jurisdiction of the Court with respect to chieftaincy disputes and provided that the decision of the Executive Council of the State on Chieftaincy matters shall be final and shall not be questioned in any court of law. The Edict provided for imprisonment on conviction on any person who without authority, parades himself as a chief or challenges or impugns the validity of the appointment of any chief.

It seems apparent from a superficial and cursory reading of these provisions that Respondent in this appeal, who was plaintiff in the pending action in challenging the validity of the selection of Samuel George Adelabu stood the risk of prosecution and possible conviction and imprisonment under the new Edict, unless he withdrew this civil action and forever held his peace.

On August 2 1984 counsel to the 11th-13th Defendants filed a statement of defence, paragraph 5 of which pleaded want of jurisdiction in the Court. it was obvious counsel was there relying on the provisions of section 11 (7) of the Chieftaincy Edict No. 11 of 1984 recently promulgated. Following upon the heels counsel to the 11th-13th August 1984 filed a statement of defence on behalf of the Attorney-General, Commissioner for Local Government paragraph 1 of which also pleaded as follows:-

"1.     The defendants in answer to all the claims of the plaintiff will at the hearing of this suit raise by way of preliminary objection on a point of law the issue that this Honourable court has no jurisdiction to entertain this suit by reason of the provisions of section 11 of the Chiefs Edict, 1984."

Presumably irked by the plea of want of jurisdiction filed by counsel to the 11th-13th Defendants on 2nd August, 1984. Respondent on the 8th August, 1984 filed another writ of summons, this time making the Military Governor and Attorney-General of the State the only defendants, and claiming as follows:-

(a)     A declaration that the purport and the spirit of the section 11 (7) of the Chiefs Edict 1984 is the same with the provisions of section 20 (6) of the Chiefs Law (Cap. 20) of the laws of Ondo State of Nigeria 1978.

(b)     A declaration that section 11 (7) of the Chiefs Edict 1984 is null and void. This is suit No. HAD/58/84 and the appeal before us.

Before argument, counsel to the plaintiff sought and was granted leave to amend the writ of summons by the deletion of paragraphs (1) therein and substitution the following:-

(a)     A DECLARATION that section 11 subsection 7 of Edict No. 1 of 1984 (i.e. The Chiefs Edict, 1984) is illegal, unconstitutional, null and void in that the Military Governor of Ondo State is not competent to make or promulgate section 11 subsection 7 of the Chiefs Edict 1984 which read thus:

"No civil proceedings shall lie or be instituted in any Court of law for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any provision of this Section and if any such proceedings are instituted prior or subsequent to the commencement of this Edict, the proceeding shall abate, be discharged and made void accordingly."

(b)     A DECLARATION that section 12 subsection 3 (b) of the Chiefs Edict 1984 is illegal, unconstitutional, null and void in that the Military Governor of Ondo State is not competent to make or promulgate section 12 subsection 3 (b) of the Chiefs Edict 1984 which read thus:

"Where a person has been approved as a recognised Chief in accordance with this part, any other persons who:-

(a)

(b)     by any means illegally challenges or impugns the validity of the appointment of such Chief, shall be guilty of an offence and shall be liable on conviction to imprisonment for two years."

(c)     AN INJUNCTION restraining the defendants, their servant, agents, and or officers from executing or carrying out or taking any step pursuant to Section 11 subsection 7 and Section 12 subsection 3 (b) of the Chiefs Edict 1984.

This new action challenged the provisions of the Chiefs Edict No. 11 of 1984 which purported to exclude the jurisdiction of the State High Court in Chieftaincy disputes and sought to declare the provision as null and void. The statement of claim which was appropriately amended concluded as follows:-

"The plaintiff will contend at the trial of this action:

(i) that the constitution of the Federation 1963 expressly ousted the jurisdiction of the Courts on Chieftaincy matters.

(ii) That 1979 constitution of the Federal Republic of Nigeria by implication repealed the ouster clause on Chieftaincy matters and gave the state High Court unlimited jurisdiction in civil matter.

(iii) That the constitution (Suspension and Modification) Decree 1984 was made in February, 1984 limiting the legislative powers of the 1st defendant and kept alive that part of the constitution that gave State High Court unlimited jurisdiction in civil matters.

(iv) That section 20 (6) of the Chiefs Law purportedly ousted the jurisdiction of the Court but the principal suit filed in May, 1984 was competent as section 20 (6) of the Chiefs Laws was void to the extent of its inconsistency with the constitution that was kept alive by the constitution (Suspension and Modification) Decree 1984.

(v) That the 1st defendant cannot by an edict amend the provisions of the constitution that gave State High Court unlimited jurisdiction in civil matters.

(vi) That section 11 (5) and (7) of the Chiefs Edict are also void to the extent of its inconsistency with the provision of the constitution that gave State High Court unlimited jurisdiction in civil matters."

The defendants in this action repeated their defence of want of jurisdiction pleaded in the earlier action and in their joint statement of defence relief on the provisions of the Chieftaincy Edict No. 11 of 1984 which they pleaded in paragraph 5 thereof by way of preliminary objection as ousting the jurisdiction of the court. It reads as follows:-

"The defendants in answer to paragraphs 7 & 8 (i-vi) will at the hearing of this suit raise by way of preliminary Objection on point of Law, the issue that the Honourable Court has no jurisdiction to entertain this suit by reason of the provisions of sub-sections (5) and (7) of section 11 of the Chiefs Edict, 1984 and other relevant Enactment."

Ultimately this preliminary objection was withdrawn, and counsel argued the case on its merits. The learned trial Judge Afonja J in a well considered judgment granted all the declarations sought. The Defendants' appeal to the Court of Appeal, was dismissed. This is a further appeal to this Court.

Appellants have filed ten grounds of appeal. All the grounds of appeal are concerned with the construction of Edict No. 11 of 1984 in its relationship with the Constitution 1979 and the powers of the Military Governor of Ondo State to enact the provision of the law now challenged. It is therefore not necessary to reproduce the grounds of appeal. Counsel to the Appellants and of the Respondents have filed their briefs of argument which they relied upon in argument before us.

Although the questions for determination were variously formulated by counsel; I prefer and adopt the more concise formulation by respondents clumsy and obscure formulation by counsel to the appellants. The issues for determination therefore are:-

(a)     Whether or not the Military Governor can derogate from the powers conferred on the State High Court by the Constitution by an Edict in the light of Decree No. 1 of 1984?

(b)     Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984?

The answers to the above two issues are complementary in the determination of the Declarations sought by the respondent as plaintiff in the High Court.

Mr Fagbe, deputy Solicitor-General, Ondo State who argued the case of the appellants submitted to us that since the provision of section 4 of the Constitution 1979 was suspended by Decree No. 1 of 1984, and with it the constitutional provisions of the Court, the Military Governor was within his constitutional rights to enact an Edict ousting the jurisdiction of the Courts. It was also submitted that the subject matter of Chieftaincy was not in the exclusive legislative list, accordingly the jurisdiction of the Court could be ousted. It was contended that Chieftaincy matters are statutory rights over which the High Court had jurisdiction. He then went on to submit therefore that the Military Governor could derogate from Section 236 (1) of the Constitution 1979.

On the second issue, Mr Fagbe relied on the provisions of s. 1(2)(b) (i) of Decree No. 13 of 1984 which prohibited questioning in Courts the validity of a Decree or Edict or civil proceedings in respect of any matter done or purported to be done pursuant to any Decree or Edict. it was submitted there was no consistency between Edict No. 11 of 1984 and Decree No. 13 of 1984. He referred to Adamolekun v. Council of University, Ibadan (1968) N.M.L.R. 253, Chief Adebiyi Adejumo v. Col. Mobolaji Johnson (1972) 3 S.C. 34, Onyiuke v. ESIALA (1974) 1 N.I.N.L.R. (Pt. 2) 158.

In his brief which he adopted, Mr Abiodun, for the Respondents submitted, relying on the provisions of s. 1 (2) of Decree No. 1 of 1984, that the unsuspended provisions of the 1979 constitution were still operative and applicable. Counsel also submitted that by that Decree the legislative powers of Military Governors were limited. He pointed out that their powers were subject to the provisions of the Constitution. He therefore pointed out relying on section 2(4)(ii) of Decree No. 1 of 1984 that where there are inconsistencies between an Edict and the Decree No. 1 of 1984, or the operative provisions of the 1979 Constitution and an Edict the provision of the Edict shall be void to the extent of such inconsistency.

On the second issue, Mr Abiodun referred to the elaborate preamble of Decree No. 13 of 1984 and submitted that an Edict the provisions of which are inconsistent with those of a Decree or the unsuspended provisions of the Constitution 1979 will be void. But a Decree can prevail over the provisions of the unsuspended part of the Constitution 1979.

Counsel concluded that the Edict No. 11 of 1984 could not oust the jurisdiction of the High Court derived from section 236(1) of the Constitution 1979 which is still operative.

Counsel cited and relied on dicta in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158, 219, 240, 337 for his submission. Any provision of an Edict inconsistent with an unsuspended provision of the Constitution is void Adamolekun v. Council, University of Ibadan (1968) N.M.L.R. 253; Onyiuke v. ESIALA (1974) 1 All N.L.R. 151. Mr Abiodun submitted that the intention of Decree No. 13 of 1984 was that the validity of any Edict not in conflict with the unsuspended provision of the Constitution 1979 or a Decree shall not be inquired into. Counsel contended that Decree No.13 of 1984 did not preclude inquiry into validity where there is inconsistency. Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 at p. 137 was relied upon. Decree No. 13 of 1984, it was submitted, did not deal with Chieftaincy matters, hence the Edict No. 11 of 1984 could not derive its authority from it.

This is yet another appeal which questions the scope of the power of the Military Governor of a State to make laws, within the frame work of the new Constitutional Order. The issue is certainly not new. Our case law is replete with decisions of this Court since the new legal order was created by the promulgation of Decree No. 1 of 1966 on the 16th January, 1966; apart from the contrary view of this Court in E.O. Lakanmi & anor. v. AG. (West) and two others (1974) 4 ECSLR. 713 which was promptly and unequivocally rejected by the Federal Military Government (Supremacy and Enforcement of powers) Decree No. 28 of 1970 on the 9th May, 1970 the Constitutional and legal order has been accepted that the fundamental law of this country from which all the authority legality and validity of other laws is derived is the Constitution (Suspension and Modification) Decree No. 1 of 1966 and Decree of identical appellation promulgated by successive Military Governments which have come into power violently displacing an existing government. The Decrees are the Constitution (Suspension and Modification) (No. 9).Decree No. 59 of 1966, the Federal Military Government (Supremacy and Enforcement of powers) Decree No. 28. of 1970; the constitution (Basic provisions) Decree No. 32 of 1975; The Constitution (Suspension and Modification) Decree No. 1 of 1984; Federal; Military Government (Supremacy and Enforcement of powers) Decree 1984; No. 13 of 1984. Each of these Decrees unequivocally and uncompromisingly declared the absolute authority of the Military Government, the subordination of the pre-existing legal order by rendering provisions of the erstwhile fundamental law i.e. the Constitution, subordinate to the Decree; and the limits of the legislative powers and jurisdiction of Military Governor. Above all the first decrees suspended provisions of the Constitution considered inconsistent with its existence and the exercise of its authority, and modified others; allowing only those of it regarded complementary to its exercise of undisputed authority. Thus the Constitution in so far as it survived and is applied, did and still does so on the benevolence, sufferance and behest of the authority of the Military Government. The general from the fundamental Decree has taken is to state the powers of the Federal Military Government and the limitation on the powers of Military Governors. The Decree then provides for the mode of exercising legislative powers. It also goes on to exclude the jurisdiction of the Court to question the validity of Decree and Edicts. The provisions of sections 1(2) 2; 5 of the Decree No. 1 of 1984 which is relevant to our discussion in this appeal are reproduced hereunder for ease of reference.

1.       (2)     Subject to this and any other Decree the provisions of the said Constitution which are not suspended by subsection (1) above shall have effect subject the modifications specified in schedule 2 to this Decree.

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 II 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 effects 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 effects as if so made, or

(ii) made by the Federal Military Government on or after that date, the law as mentioned in sub-paragraph (i) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency, be void.

5.      No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria."

A careful analysis of the provisions of s.2 reveals the status of the laws and their hierarchy for the purposes of effective application. Concisely stated, the fundamental law of the land consists of Decree No. 1 of 1984 and the unsuspended and modified provisions of the Constitution 1979. However, the hierarchy of superiority of the laws has been maintained in s. 1(2)(4) of the Decree No. 1 of 1984 which provides that:

(1)     The Federal Military Government's legislative jurisdiction runs through the entire federation and in respect of all matters.

(2)     The Military Governor of a state has limited jurisdiction only in respect of matters in the residual legislative list, and in respect of the concurrent legislative list with the consent of the Federal Military Government.

It is also provided that the existing laws of the state or laws promulgated by Military Governor after the 31st December, 1983 inconsistent with existing laws made by Federal Parliament or Decrees, shall be void to the extent of the inconsistency-see s.2(4) Decree No. 1 of 1984.

It follows therefore that the hierarchy of superiority in ascending order of superiority of legislative authority is that the Military Governor's Edict is inferior to the existing laws of the National Assembly, unsuspended provisions of the Constitution and Decrees in that order.

The hierarchy of superiority of laws therefore is as follows-

1.      Existing Laws of the State.

2.      Edicts of the Military Governors.

3.      Existing laws of the parliament.

4.      Unsuspended provisions of the constitution.

5.      Decrees of the Federal Military Government.

Thus any provisions of the laws of the states or Edicts of the Military Governors inconsistent with existing laws of the Federal parliament or unsuspended and modified provisions of the Constitution 1979 or the Decrees of the Federal Military Government is void to the extent of such inconsistency. See: Adamolekun v. Council of University of Ibadan (1968) NMLR. 253. See also Peenock Investment Ltd. v. Hotel Presidential Ltd, (1982) 12 SC.1. Mr Fagbe for the Appellants submitted that the provisions of section 11(7) of the Chieftaincy Edict No. 1 of 1984 was valid and within the vires of the Military Governor of the state to enact. His contention was that since section 4 (8) of the Constitution 1979 prohibiting exclusion of jurisdiction of the court was suspended, the powers of the Military Governor to exclude the jurisdiction of the courts in any legislation was at large. Counsel criticised as wrong the statement of the law by the Court of Appeal that-

"Unless a Decree suspends or modifies the section, no Edict can alter the situation. There can be a Decree ousting the jurisdiction of the State High Court on Chieftaincy matters and that will be the end of that section i.e. s. 236(1) of the constitution on Chieftaincy matters."

I think Mr Fagbe has misunderstood the contention of Mr Abiodun with respect to the validity of the provisions of s. 11 (7) of the Chiefs Edict No. 11 of 1984. As Mr Abiodun pointed out in his brief of argument,"... No one is complaining that the Military Governor lacks the power to enact the Chiefs Edict ousting the jurisdiction of the Courts, are inconsistent with the provisions of the unsuspended section of the 1979 Constitution." The statement criticised by Mr Fagbe state the law correctly. It is only a Decree of the Armed Forces Ruling Council that can amend a provision of the Constitution.

It is a fundamental requirement for the validity of the Edict of a Military Governor that there must be the legal capacity to make the law and when made, must not be inconsistent with the unsuspended provisions of the Constitution 1979 or the existing laws of the Federal Parliament or a Decree. See: 2(1)-(4) Edict No. 1 of 1984. Counsel has not contested as he obviously cannot, that the provisions of 11 (7) of the Chiefs Edict 1984 was not aimed at interfering with the jurisdiction vested in the State High Court by section 236(1) of the Constitution 1979. Section 236 (1) of the Constitution 1979 which remains unsuspended provides as follows:

"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 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 criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person."

It has been decided in several cases which have come before this Court that the Constitution has vested State High Courts with unlimited jurisdiction to hear and determine any civil proceedings in which the existence of a legal right, powers, duty, liability, privilege, interest, etc. is in issue. See Savannah Bank Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1.S.C. 198. Mr Fagbe admits that rights arising from Chieftaincy disputes are rights which are within the legislative powers of the Military Governor to regulate. The Military Governor has in enacting the Chieftaincy Edict in my opinion gone further that merely regulating the right to a Chieftaincy. The Edict has trespassed into the domain of regulating the exercise by the Courts of the jurisdiction which the constitution has vested in them. The purport of such trespass being to remove from the State High Courts the exercise of unlimited jurisdiction vested in them by the constitution and render the jurisdiction limited is inconsistent with the jurisdiction vested by the constitution on the State High Court. The inconsistency is not in the fact of existence of the two laws but in the fact that they cannot co-exist.

I do not think the legislative jurisdiction of the Military Governor is that extensive to enable the making of section 11 (7). This is because section 236 (1) of the constitution which section 11 (7) of the Edict No. 11 of 1984 purports to interfere with is an unsuspended provision of the Constitution 1979, which as amended by Decree No. 1 of 1984 has provided:

"This constitution as amended by this or any other Decree is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria."

Accordingly the Constitution as amended (which includes s. 236 (7) in issue) is supreme and the Chieftaincy Edict No. 11 of 1984 s. 11 (7) which purports to interfere with section 236(1) of the Constitution 1979 cannot be applied together with it, is therefore inconsistent with it. Lakanmi v. A.G. (West) & 2 ors. (supra)-See Adamolekun v. The Council of University of Ibadan (1968) NMLR. 253 E.O. Lakanmi v. AG. West & ors. (1974) 4 ECSLR. 713; Chief Ereku v. Military Governor, Mid-Western State (1974) 10 SC. 59 Onyiuke v. Esiala (1974) 1 All NLR (Pt. 11) 15; AG, of Mid Western State v. Essi (1977)4 SC. 71 Agip Nigeria Ltd.v.Att.-Gen. of Lagos State (1977) 11-12 SC.33 Adejumo v. Col. Mobolaji Johnson (1972) 1 All NLR. (Pt. 1) 159 Iffie v. Attorney-General of Bendel State (1987) 4 NWLR. (p. 67) 972. Kanada v. Governor Kaduna State (1986) 4 NWLR. (Pt. 35)361. The Military Governor cannot in exercise of his powers validly encroach upon the jurisdiction vested in the High Court by section 236(1) of the constitution 1979.

The other issue to be determined is whether or not the State High Court has jurisdiction to declare any inconsistency found in an Edict against a Decree or the unsuspended part of the constitution notwithstanding the provisions of Decree No. 13 of 1984. This inelegantly formulated issue merely raised the question whether in the light of the express provisions of Decree No. 13. of 1984 a court can exercise jurisdiction to question the validity of an Edict. I have already set out the contentions of counsel in respect of this issue. In his submission Mr Fagbe for the appellants relied on the provisions of section 11 (7) of the chiefs Edict No. 11 of 1984 to contend that the court lacked the requisite jurisdiction. It was his contention that section 11(7) of the chiefs Edict being in pari materia with the provisions of section 1(2)(b)(i) of Decree No. 13 of 1984, is not inconsistent with the provisions of the Decree No. 13 of 1984 or any other Decree. Citing and relying on the case of Adejumo v. Colonel, M. Johnson, Military Governor, Lagos State (1972)1 All NLR (Pt. 1) counsel submitted that the court can only inquire into the validity of an edict if there was any inconsistency between its provisions and that of a Decree, and this was not the situation in this case.

Section 11 (7) of the chiefs Edict No. 11 of 1984 which is relied upon as ousting the jurisdiction of the courts provides as follows:-

"No, civil proceedings shall lie or be instituted in any court of law for or on account of or in respect of any act matter or thing done or purported to be done under or pursuant to any provisions of this section and if any such proceedings are instituted, prior or subsequent to the commencement of this Edict, the proceedings shall abate, be discharged and made void accordingly."

This section, it is true, is in pari materia with section 1(2)(b)(i) of the Federal Military Government (supremacy and Enforcement of powers) Decree No. 13 of 1984. On a calm reading of and reflection on the whole of Decree No. 13 of 1984 including the preambles, it is evident that section 1(2)(b)(i) which excludes civil proceedings is referring to provisions of the Edict which are not inconsistent with the provisions of a Decree. For example the fourth preamble to the Decree states:

"AND WHEREAS by section 5 of the said Constitution (Suspension and Modification) Decree 1984, no question as to the validity of any Decree or any Edict (in so far as by section 2(4) therefore the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria."

By section (1) of the Decree the preamble was declared as forming part of the Decree. This therefore explains the general provisions of section 5 of Decree No. 1 of 1984 which says:-

"No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria."

Thus what is meant is that where the provisions of an Edict are not shown to be inconsistent with that of a Decree or an Edict, no court shall exercise jurisdiction to declare the validity of such Edict-Expressio unius est exclusio alterius. Of course in the case challenge can only be made of the making of the Decree or Edict. This is what is prohibited. But in other cases expressly provided in section 2(4) of the Decree No. 1 of 1984, it seems to me unarguable that the court is expected to exercise jurisdiction. Where 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 so made as mentioned in sub-paragraph (i) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency be void."

There is no ambiguity in the words of this section. The Court in Adamolekun v. Council, University of Ibadan (1968) NMLR. 253 construing the provisions of section 3 (4), 6 of the Constitution (Suspension and Modification) Decree No.1 of 1966 in pari materia with section 2(4) 5 of Decree No.1 of 1984, said at p. 260.

"It is significant that in section 3 of Decree No. 1 of 1966 there is express provision in sub-section (6) quoted already that the courts may not enquire whether the Military Governor of a Region had obtained the consent of the Federal Military Government before legislating on a matter in the Concurrent legislative list, if nothing done by an Edict could be enquired into by a court of law, it would not have been necessary to make that express provision in subsection 6 of section 3. we think section 6 must be read together with section 3 of Decree No. 1 of 1966 and the right view in our opinion is that the courts can enquire whether an Edict is void to any extent under section 3 (4) of that Decree (No. 1 of 1966) which is the Decree authorising the making of Edicts within certain confined limits..."

The court in the same judgment declared, at p. 260"

"Reading the Decree as a whole we are not in doubt that section 6 does not preclude the court from enquiring into any inconsistency that may arise but merely bars the courts 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 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." See also E.O. Lakanmi & anor. v. AG. (West) & 2 ors. (1974) 4 ECSLR.713. There have been similar pronouncements of this Court in Peenock Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. at pp. 31,66. Chief Ereku v. Governor Mid-Western State (1974) 10 S.C.pp. 59-76; Onyiuke v. ESIALA (1974) 10 SC.pp. 77-90 in respect of conflicts with the 1963 Constitution. There is undoubted power in the courts to declare null and void any Edict inconsistent and in conflict with a Decree or a provisions of the Constitution 1979. This is re-enforced by the provisions of section 2 (6) of Decree No. 1 of 1984 which prohibits inquiry into whether there was consent in the exercise of the federal legislative powers by the Military Governor.

What is in issue in the appeal before us was in the cases cited above, is whether the High Court of Ondo State can enquire into the inconsistency in the provisions of section 11(7) of the Chiefs Edict No. 11 of 1984, and section 236(1) of the Constitution 1979. The Constitution as amended by Decree No. 1 of 1984 or any other Decree subject to the provisions of a Decree is supreme and its provisions shall have binding force on all authorities and persons throughout Nigeria.

There is ample authority in support of the exercise of jurisdiction and to declare upon the inconsistency from the express provisions of the Constitution (Suspension and Modification) Decree No. 1 of 1984, Decree No. 13 of 1984 and all the cases cited in the judgment.

The jurisdiction of the court is not derived from the act of making the Decree which is not here challenged and is any way denied by Decree but arises from the fact that the two laws cannot co-exist and be applied. of course in such a circumstance the fundamental law of the land, Decree No. 1 of 1984, section 1 (2) and 2(4) has vested jurisdiction in the courts to make the appropriate declaration of nullity.

The trial judge was right in making the declarations and the Court of Appeal was right in affirming the judgment.

These are my reasons for dismissing the appeal.

Kawu, J.S.C. We dismissed this appeal on the 11th day of April, 1988 and indicated that we would, today give our reasons for doing so.

I have had advantage of reading in draft the Reasons for Judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. I agree entirely with his reasons and I hereby adopt them as my own.

It is plain to me that the Chiefs Edict No. 11 of 1984 of Ondo State was promulgated by the Governor of the state with the sole purpose of taking away chieftaincy disputes from the unlimited jurisdiction conferred on the State High Court by the suspended section 236(1) of the 1979 Constitution. The Edict, being inconsistent with the provisions of an unsuspended section of the Constitution is void to the extend of such inconsistency-see section 2(4)(b) of the Constitution (Suspension and Modification) Decree 1984, Adamolekun v. The council of University of Ibadan (1968) NMLR 253 and Adejumo v. Col. Mobolaji Johnson (1972) 1 All N.L.R. (Pt. 1) 159. It is for this reason and for the more comprehensive reasons given by my learned brother, Nnaemeka-Agu, J.S.C. that dismissed the appeal and affirmed the decisions of the two lower courts.

Oputa, J.S.C., After a very careful consideration of the Briefs of Argument filed by learned Counsel in this appeal, and after listening to counsel in oral argument in elaboration of the points and issues in their respective Briefs, the Court on the 11th day of April 1988 dismissed the appeal and reserved Reasons For Judgment. These were adjourned to today the 24th day of June 1988.

I have, in the intervals, had the privilege of a preview in draft of the lead Reasons for Judgment just delivered by my learned brother Nnaemeka-Agu, J.S.C. and I am in complete agreement with his reasons and conclusions.

Craig, J.S.C. On the 11th of April, the Court dismissed the appeal herein and announced that it would give reasons for the judgment today. I now give my reasons for agreeing that the appeal should be dismissed.

In this connection, I have had a preview of the judgment of my learned brother Nnaemeka-Agu, J.S.C., and I entirely agree with his reasonings and conclusions.

The relevant facts of this case are that the respondent, Victor Adewumi, had sued the two Appellants and 17 others in suit No.48/1954, at the High Court Ado-Ekiti to challenge the appointment of one Samuel George Adelabu, as the Ewi of Ado-Ekiti.

While pleadings were being exchanged, the first Appellant, as Military Governor of Ondo State, promulgated an Edict (The Chiefs Edict 1984) part of which purported to oust the jurisdiction of the Courts in Chieftaincy matters. Thereafter the first Appellant in the case filed his statement of Defence and in it, he pleaded the ouster of jurisdiction by virtue of section 11(7) and 12(3)(b) of the said Chiefs Edict 1984. Faced with this awkward situation the plaintiff/Respondent brought this section for a declaration that the said two sections of the Edict were null and void in that they were inconsistent with section 236 (1) of the 1979 Constitution, which gave the High Courts:

"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..."

After a hearing on the merit, the trial Court (per Afonja J.) gave judgment for the plaintiff/Respondent in terms of the writ. The Defendant/Appellants appealed to the Court of Appeal, but their appeal was dismissed: this is a further appeal by the Defendants.

A number of issues have been formulated for determination, and these have been adequately treated in the lead judgement. I would, however, like to comment briefly on the 3rd issue presented by the Appellants which reads as follows-

QUESTION FOR DETERMINATION

"Can it be said that section 236 (1) of the Federal Republic of Nigeria Constitution 1979 is still unmodified, unamended or unaffected having regard to the provision of section 1(i) of Decree No. 1 of 1984 which suspended section 4 (8) of the 1979 constitution and also section 5 of Decree No.1 and the whole of Decree No.13 of 1984."

Now what is the special significance of section 4 (8) of the Constitution upon which the Appellant has relied so much in promulgating this offensive Edict? In my view, it is necessary to consider just how much support this section could give to the Appellant. That section reads as follows:

4        (8)     "Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law."

A close study of the 1979 Constitution shows that section 4 is in the Part of the Constitution which deals with the distribution of powers amongst the three principal agencies of Government. Thus:

(a)     In section 4, the Legislative powers of the Country are vested in the National Assembly and the House of Assembly; whilst

(b)     In section 5, the Executive powers are vested in the President and the State Governors; and

(c)     In section 6, the judicial powers are vested in the Law Courts.

In respect of (a) above, it is important to note that after investing the National Assembly and the House of Assembly with powers to make laws "for the peace, order and good government of the Federation." The Constitution makes two special provisions in section 4 (8) to safeguard the exercise of that power.

Firstly, it makes the exercise of the power subject to the jurisdiction of the Courts. In other words, it appoints the Courts as "supervisors" of the exercise of the power (possibly, this is to prevent an abuse of the power),

Secondly, in order that the legislature may not frustrate the efforts of the Courts, the Constitution forbids the Legislature from making laws the effect of which would be to oust the jurisdiction of the courts in its role as supervisors.

It will be seen therefore, that section 4 (8) of the 1979 Constitution is not a section of general application. It is strictly limited in its to the Powers of the Legislature to make laws, and it will be wrong to extend the scope of its operation beyond the provisions of section 4.

Before us, as indeed before the two lower Courts, the Appellant's Counsel has submitted that since the prohibition of ouster of jurisdiction contained in section 4(8) (supra) has been removed by Decree No. 1 of 1984, the latter decree must be deemed to have impliedly modified and/or repealed section 236(1) of the constitution which gave unlimited jurisdiction to the Courts. That submission in my view, is completely misconceived.

Firstly, I have already said that section 4(8) does not contain a provision of general application and there is nothing in the whole of Decree No. 1 of 1984 which suggests that section 236 was being modified or repealed. Indeed, although several sections of the constitution were suspended by the Decree sections 6 and 236 were left untouched. In my view it would be wrong to read into a statute that which it does not contain.

See:

1.      N. Rabiu v, The State (1981) 2 N.C.L.R. 293

2.      Thompson v. Goold & Co. (1910) A.C. 409 at 420

Secondly, as far as the courts are concerned the question of jurisdiction is a very serious matter and a lot of importance is attached to it. A Court either has jurisdiction or it has none. If it has none, the entire proceedings in that Court would be void, no matter how well conducted and decided the case may have been.

See: Madukolu v. Nkemdilim (1962) All N.L.R. 58

In regard to superior Courts of record, they are presumed to have jurisdiction, until the contrary is proved; and once they are shown to have jurisdiction, they cannot be divested of that jurisdiction merely by inference or deduction, but only by very clear and unambiguous words.

See: Bronik Motors Ltd. v. Wema Bank Ltd. (1985) 6 N.C.L.R. 1 London Borough of Ealing v. Race Relations Board (1972) 2 All E.R. 105

It is a matter of common knowledge that on the inception of any Military Government, the first thing that it does is to dismiss Parliament and abolish the office of the Chief Executive; it then takes over the functions of these two bodies.

With regard to Parliament, the new administration assumes full responsibility for making laws for the whole Country and this it does by means of Decrees and Edicts.

It is therefore to be expected that the very first Decree of a new Military Governor would reflect these changes, and amongst other things, it would contain provisions which would:

1.      Suspend Parliament and announce that the Military Government had taken over the functions of parliament:

2.      Declare the supremacy of Decrees and

3.      Suspend or abrogate all those Sections of the Constitution which had hitherto vested the law-making functions in the parliament.

When the Buhari Government came to power in 1984, it did just that by promulgating The Constitution (Suspension and Modification) Decree No. 1 of 1984.

In section 1 of that Decree the Military Government suspended certain section of the 1979 Constitution which would derogate from it authority as a Military power. As was to be expected, section 4 was one of the sections suspended.

In my view and for the reasons already given, section 4 of the 1979 constitution was suspended in order to strengthen the law making powers of the Military Government, and not, as submitted by Counsel, to curtail or remove the unlimited jurisdiction of the Law Courts, which under section 236 remained untouched.

The only question remaining is whether the Chiefs Edict 1984 has an over-riding effect on the unsuspended section of the 1979 Constitution. I do not think so and the answer to this is contained in section 2(4)(b) of Decree No. 1 of 1984.

That section provides as follows-"2.    (4)         If any law:-

(a)     enacted before 31st December 1983 by the House of Assembly of a State or having effects 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 effects 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) or (ii) above shall prevail and the State law shall, to the extent of the inconsistency, be void."

It is obvious that the unsuspended provisions of the 1979 Constitution would take effect as if they had been made by the National Assembly before the 31st December, 1983; it is also apparent that sections 11(7) and 12(3) of the Chiefs Edict 1984 of Ondo State are inconsistent with section 236 (1) of the 1979 Constitution and those two sections are therefore void.

For the reasons more fully set out in the lead judgment I hold that the unsuspended provisions of the Constitution are superior to an Edict; I also agree that sections 11(7) and 12(3) of the Chiefs law 1984 which purported to oust the jurisdiction of the Courts in relation to Chieftaincy matters are inconsistent with section 236 of the Constitution, and are consequently null and void to the extent of such inconsistency.

In the result the appeal fails and the judgment of the Court of Appeal which affirmed the decision of the trial Court is hereby confirmed. These are my reasons for dismissing the appeal on the 11th day of April, 1988.