1. ADENRELE ADEJUMO

2. NIGERIAN CONSTRUCTIONAL DESIGNING AND PLANTING GROUP LIMITED (APPLICANTS/RESPONDENTS)

v.

H. E. COLONEL MOBOLAJI JOHNSON MILITARY GOVERNOR OF LAGOS STATE (RESPONDENT/APPLICANTS)

(1971) All N.L.R. 454

Division: High Court of Lagos

Date of Judgment: 23rd April, 1971

Case Number: SUIT NO. M/143/69

Before: George J.

Civil Action.

HELD:

(1)     The jurisdiction of a court cannot be ousted by the expression "shall not be entertained." The jurisdiction of a court can only be ousted by clear and unambiguous expressions.

(2)     There is nothing in Decree No. 28 of 1970 which ousts the jurisdiction of the court. To have jurisdiction is one thing and to exercise it is another. In order to oust the jurisdiction of the court, the words of the Decree must be clear and unambiguous. This was not the case with Decree No. 28 of 1970.

(3)     Decree No. 28 of 1970 specifically refers to "any decision in the exercise or purported exercise of any powers under any enactment." Consequently it could not be said that under the circumstances the court could proceed to entertain the action under the inherent jurisdiction such jurisdiction in Nigeria being a second derivative of an enactment. Even if the inherent jurisdiction of English courts was based on the English Common Law, that law is applicable to Lagos State by the provision of an enactment.

(4)     If the court acted under the provision of the High Court of Lagos Act and granted the order in the substantive action, it would be acting under the provision of an Act and the order would be null and void. In short it would be a fruitless exercise to proceed with the action.

PER CURIAM:

(1)     The position of a High Court in any State in Nigeria differs from that of the Royal Court of Justice in England, in that whereas, the court of King's Bench Division derives its jurisdiction not only from enactments but from tradition, Nigeria Courts derive their powers from Statutes.

(2)     It has been said that "No Certiorari Clause" in an enactment is ineffective to prevent a court from making the order, for the King's Bench Division has an inherent jurisdiction to supervise proceedings before an inferior tribunal. That statement applies to an English Court where, apart from statutes, the courts have an inherent jurisdiction.

Action dismissed.

Cases referred to:

Escoigne Properties Ltd. v. Inland Revenue Commissioners, (1958) A.C. 549.

Anisminic v. Foreign Compensation Commission, (1969) 2 A.C. 149. Hope Harriman v. Colonel Johnson, LD/440/69.

Decree referred to:

Decree No. 28 of 1970 S.1.

CIVIL ACTION

SUIT NO. M/143/69.

George, J.:-This is a motion by the respondent applicant pursuant to Order XXVIII rule 1 of the Old Supreme Court (now High Court of Lagos) Rules for an order that the application for an Order of Certiorari be dismissed. The grounds of law set out in the notice of motion are as follows:-

(i) "That upon the facts appearing in the affidavits of the applicants/respondent the remedy sought by the applicants/respondent would not avail them by virtue of the provisions of Section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.

(ii) That this honourable Court has no jurisdiction in this matter."

From the affidavits in support of the motion as well as the affidavits in support of the substantive application for an order for leave to apply for an Order of Certiorari it appears that the matter arose from:

1.    The Public Officers and other persons (forfeiture of assets) Order 1969; and

2.    The Public Officers and other persons (Making of Reparation) Order 1969.

These two Orders are instruments made under the Investigation of Assets (Public Officers and other persons) Decree, 1968.

Counsel for the respondent/applicant in arguing the second leg of the motion said: "The declaration sought is academic" and proceeded to cite the case of Escoigne Properties Ltd. v. Inland Revenue Commissioners 1958 A.C. 549 at pages 565-566. I do not see the relevance of this case to the matter in issue. The applicant in the substantive action does not seek "a declaration". What the applicants claim is that the proceedings are a nullity and should be quashed.

In order to succeed on the second leg of the motion i.e. "That this Court has no jurisdiction" the respondent/applicant must prove that Part III of the High Court of Lagos Act has been suspended or revoked.

Sec. 10 of the Act vests in this Court "in addition to any other jurisdiction conferred by the constitution of the Federation or by this or any other Act...subject to the provisions of the Constitution Order and this Act all the jurisdiction powers and authorities...which were vested in or capable of being exercised by Her Majesty's High Court of Justice in England."

In addition to the general jurisdiction conferred on this Court by Sec. 11 of the High Court of Lagos Act, Sec. 20(2) of the Act specifically provides:-

"The High Court shall have all the jurisdiction of the High Court of Justice in England to make an order of mandamus requiring any act to be done or an order of prohibition prohibiting any proceedings or matter or an order of certiorari removing any proceedings, cause or matter into the High Court for any purpose."

The real point for determination in so far as the second leg of the motion is concerned is whether the jurisdiction of this Court has been ousted by the provision of Decree No. 28 of 1970.

The basis of Counsel's argument in support of the second leg of the motion is Sec. 6 of the Constitution (Suspension and Modification) Decree 1966 which is to the effect that no question as to the validity of any Decree or any Edict shall be entertained by any court of law in Nigeria. Counsel also urged in support of his motion that since by Sec. 1(3b) of Decree No. 28/70 a decree includes instruments made under and by virtue of the Decree, the applicant/respondent was virtually challenging the validity of a Decree and as such this Court had no jurisdiction to entertain the action.

I do not agree with the argument of the learned Counsel for the respondent/applicant. In my view the jurisdiction of a Court cannot be ousted by the expression "shall not be entertained." The jurisdiction of a Court can only be ousted by clear and unambiguous expressions. Once an action is filed, that action is pending and must be heard unless the court clearly has got no jurisdiction.

Howbeit, this is not an action where the validity of a decree is challenged. The applicant in the substantive action merely asks that the proceedings be removed to the court and quashed on the ground that it is a nullity.

I do not see anything in Decree No. 28 which ousts the jurisdiction of the court. To have jurisdiction is one thing to exercise it is another as I shall point out later. In order to oust the jurisdiction of the court, the words of the decree must be clear and unambiguous. This is not the case with Decree No. 28 of 1970.

The second leg of the motion therefore fails.

The first ground on which the application is made raises a more serious issue. It is to the effect that the remedy sought by the applicant/respondent would not avail them by virtue of the provision of Sec. 1 of Decree No. 28 of 1970.

The relevant provision of this Section reads:-

"Any decision, whether made before or after the commencement of this decree, by any Court of law in the exercise or purported exercise of any powers under the constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict...or the incompetence of any of the Governments in the Federation to make the same is or shall be null and void."

The Section has a definition clause "In this Decree-

(a)     "Decision" includes judgment decree or order of any Court of law; and

(b)     The reference to any Decree or Edict includes a reference to any instrument made by or under such Decree or Edict.

The Instruments made by His Excellency are therefore within the provisions of Decree No. 28.

Chief Williams for the applicants (in the substantive action) contended that the order of the Governor was without jurisdiction and therefore a nullity.

He drew my attention to several passages in the decision of the law Lords in the case of Anisminic v. Foreign Compensation Commission 1969 2 A.C. p. 147.

In that case the House of Lords approved a decision of Brown J. where at p. 234 he said:-

"In my view whenever Parliament creates a new inferior tribunal the High Court has an inherent jurisdiction to supervise and control it, and any person aggrieved by a decision of the tribunal has an inherent right to ask the court to exercise these powers... where an order or decision of an inferior tribunal has been made without jurisdiction, so that it is a nullity, a section excluding the jurisdiction of the High Court to interfere with orders or decisions of that tribunal does not normally apply because there is in truth no order or decision of the tribunal at all."

This is undoubtedly an attractive argument and I would have been obliged to act on the irresistible logic of Brown J. but for the provision of Sec. 1 Decree No. 28 of 1970.

"Any decision...made by any Court of law in the exercise or purported exercise of any powers...under any enactment or law of any State...shall be null and void."

I must make it quite clear that the position of a High Court in any state in Nigeria differs from that of the Royal Court of Justice in England, in that whereas the court of King's Bench Division derives its jurisdiction not only from enactments but from tradition, Nigeria Courts derive their powers from Statutes.

I have recapitulated part of Secs. 10 and 11 of the High Court of Lagos Act. These tow Sections among other provisions contained therein give the High Court of Lagos all the jurisdictions powers and authorities of Her Majesty's Court of Justice in England. This of course includes the inherent jurisdiction of Her Majesty's Courts. In addition to all these Sec. 20 vests the High Court with "jurisdiction of the High Court of Justice in England" to make an order of certiorari.