Search summary:

IN THE HIGH COURT OF LAGOS

ON MONDAY, THE 26TH DAY OF OCTOBER 1970

LD/440/69

BETWEEN

HOPE HARRIMAN .......................................................... PLAINTIFF/RESPONDENT

AND

COLONEL MOBOLAJI O. JOHNSON ..................................................... DEFENDANT/APPLICANT

BEFORE: Taylor, C.J.

 

The defendant/applicant brought a motion under Order XXVIII, rule 2 of the High Court of Lagos Rules for an Order dismissing the claim brought by the plaintiff/respondent in the substantive suit on the grounds that (1) upon the facts appearing in the statement of claim of the plaintiff/respondent the remedy sought by the plaintiff/respondent would not avail him in virtue of the provisions of section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, and (2) the High Court had no jurisdiction in the matter.

In the Statement of claim in the substantive suit the plaintiff/respondent sought, inter alia, a declaration that the Public Officers and other Persons (Forfeiture of Assets) Order 1969 was not in accordance with the provisions of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 and that it was absolutely null and void and of no effect whatsoever in so far as the said Order refers to or purports to affect the plaintiff's properties.

Counsel for the defendant/applicant urged in support of the application that the plaintiff/respondent was in effect challenging the Public Officers and Other Persons (Forfeiture of Assets) Order No. 13/69 and the Public Officers and Other persons (Making of Reparation) Order No. 14 of 1969; that these two Orders were made under sections 8 and 9 of the Investigation of Assets Public Officers and Other Persons Decree No.37/68; that a Tribunal of Inquiry had been set up under section 4 of Decree No.37/68 and that by virtue of section 1 of Decree No.28/70 the validity of any Decree or Edict shall not be questioned in any Court of Law. He further submitted that whether or not the language used in Decree No.28/70 was or was not wide enough to cover an ouster of jurisdiction of the courts, the provision which makes all decisions of Courts on those matters a nullity would render the action of the courts at the hearing a wasteful exercise.

Counsel for the plaintiff/respondent submitted that what the defendant/applicant had done was not in accordance with the provisions of the Decree; that the Decree dealt only with acts exercised in accordance with the Decree and that the jurisdiction of the courts to enquire into acts outside the provisions of the Decree was not ousted. He urged the court to exercise jurisdiction and that even though the judgment may or would be a nullity, the rights of the plaintiff/respondent would have been declared.

 

HELD:

(1)     The right of the subject to have access to the courts may be taken away or restricted by statute, but the language of any such statute will be jealously watched by the courts and will not be extended beyond its least onerous meaning unless clear word are used to justify such extension.

(2)     Where an issue arises upon proceedings before the court, the jurisdiction of the court to dispose of that issue can only be ousted by plain words.

(3)     The words used in Decree No. 28 of 1970 are not words of ouster of jurisdiction but words which make it clear that any decision shall be null and void. To constitute "ouster of jurisdiction" the words used must be such as to affect and deal with the entertaining of the action as opposed to words dealing with the effect of a decision given in such an action. Consequently, there is no ouster of jurisdiction by virtue of Decree No. 28 of 1970.

(4)     The court will not make a declaratory judgment where the question raised is purely academic, or the declaration would be useless or embarrassing.

In this case the motion brought by the defendant/applicant must succeed for accepting all the facts as averred in the statement of claim as true the plaintiff/respondent would not be entitled to any decree against the defendant/applicant in the words of Order XXVIII, rule 1 by virtue of the fact that any such decree would be null and void.

Motion of Defendant/Applicant succeeds: Action of Plaintiff/Respondent dismissed.

 

Case referred to:

Attorney-General v. Bowden [1912] 1 K.B. 539.

 

Decrees referred to:

Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.

Investigation of Assets (Public Officers and Other Persons) Decree No. 37 of 1968.

 

APPLICATION TO DISMISS ACTION

 

Hotonu, for Defendant/Applicant.

Agbamuche, for Plaintiff/Respondent.

 

Taylor C.J.:-The defendant applicant moves this Honourable Court under Order XXVIII, rule 2 of High Court of Lagos Rules for an Order dismissing the claim brought by the plaintiff in the substantive suit on the grounds of law that:-

(a)     upon the facts appearing in the Statement of Claim of the plaintiff/respondent the remedy sought by the plaintiff/respondent would not avail him in virtue of the provisions of section 1 of the Federal Military Government (Supremacy and enforcement of Powers) Decree No. 28 of 1973:-

(b)     this Honourable Court has no jurisdiction in this matter.

It is provided in rule 2 of the Order under which the applicant moves that:-

"For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff's allegations, and no evidence respecting in matters of fact, and no discussion of questions of fact shall be allowed."

Now what are those material facts in the plaintiff's statement of claim are deemed to be admitted by the defendant/applicant? There is no need to set them all out or make mention of the whole of the statement of claim which is deemed admitted. Suffice it to mention those to which learned Counsel for the respondent drew attention in his address, i.e., paragraphs 6, 7, 11, 12 and 16.

Learned Counsel for the applicant urged in support of the application that the plaintiff was in effect challenging The Public Officers and other Persons (Forfeiture of Assets) Order No. 13/69 and The Public Officers and other Persons (Making of Reparation) Order No 14 of 1969; that these two Orders were made under sections 8 and 9 of the Investigation of assets Public Officers an Other Persons Decree No. 37/68; that a Tribunal of Inquiry had been set up under section 4 of this said Decree No. 37/68 and that by virtue of section 1 of Decree No. 28/70 the validity of any decree or Edict shall not be questioned in any Court of Law. Learned Counsel then went on to submit that a Decree included instruments made under and by virtue of the Decree as per section 1(3)(b) of Decree No. 28/70

Learned Counsel then finally submitted that whether or not the language used in Decree No. 28/70 was or was not wide enough to cover an ouster of Courts on those matters a nullity would render the action of the courts at the hearing a wasteful exercise.

Mr G.O.K. Ajayi on the other hand drew my attention to various paragraphs of the Statement of Claim which, for reasons already given are taken, as admitted by the defendants for the purpose of this submission and submitted that what the defendant had done was not in accordance with the provisions of the Decree that the Decree dealt only with facts exercised in accordance with the Decree and that the jurisdiction of the courts to enquire into acts outside the provisions of the Decree was not ousted.

In the alternative learned Counsel then proceeded to ask the court to adjudicate in the substantive suit even if it was of the view that the effect of Decree No. 28/70 was to render the decision void and a nullity. Learned Counsel urged this upon the court in order that the plaintiff may have his legal rights determined for posterity.

A convenient starting point is, I think, a consideration of the effect of Decree No. 28 of 1970 and to see whether the claim in the substantive suit is embraced by the provisions of this Decree. It is provided, inter alia, that:-

(2)     "It is hereby declared also that:.. 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 of law of the Federation or any Statement which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.

(3)     In this Decree

(a)

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

To put it quite shortly the effect of the provisions set out above is that any decision whatsoever of any Court in any part of the Federation either before or after the passing of Decree No. 28 of 1970 which purports to do any of two things is null and void and of no effect whatsoever.

The two matters are as follows:-

(1)     A decision declaring or purporting to declare invalid any Decree or Edict (The proviso is of no relevance to the matter under consideration).

(2)     A decision declaring or purporting to declare any government of the Federation incompetent to make the Decree or Edict.

In both of these matters reference to a Decree or Edict includes reference to any instrument made by or under such Decree or Edict.

The important point is whether in the action before me I am being asked to do one or other of these matters I have set out under two heads above. In order to answer this, reference must be made to the Writ of Summons and any part or parts of the Statement of Claim which amplify the Writ.

Inasmuch as there are three parts of the Writ it will be necessary, if they are divisible and in watertight compartments, not dependent on the other, to deal with them separately.

An abbreviated version of the first part of the claim in the Writ is as follows:-

"A declaration that the Public Officers and other Persons (Forfeiture of Assets) Order 1969 dated 23rd day of July, 1969... is not in accordance with the provisions of the Investigation of Assets (Public Officers and other persons) Decree 1968 and that it is absolutely null and void and of no effect whatsoever in so far as the said Order refers to or purports to affect the plaintiff's above mentioned properties."

Now the Public Officers and other Persons (Forfeiture of Assets) Order 1969 L.S.L.N. No. 13 of 1969 purports to be an Order made "in exercise of the powers conferred by section 8 of the Investigation of Assets (Public Officers and other Persons) Decree 1968. From the plain wording of the Writ this is a claim to declare the Order invalid: invalid because as contended by the respondent, the applicant has in effect exceeded his powers and acted outside the 1968 Decree. In doing so, learned Counsel contends that the protection afforded by decree No. 28 of 1970 does not avail the defendant/applicant.

Both parties in their arguments before me have laid stress more on the first of the matters set out above and have failed to give much or any attention to the second item which seems to me to cover more ground than the first.

The first part of the Claim is not an action to declare any Decree or Edict void or voidable, but it is an action to declare an instrument made under and by virtue of the powers conferred by section 8 of the Decree No. 37 of 1968 void and a nullity. It is most important, however, to bear in mind the specific words used in Decree No. 28 of 1970 in relation to instrument. It makes reference to instruments made by a Decree or Edict on the one hand and instruments made under such Decree or Edict. In the particular case under consideration the Order which is challenged is not an Order made by Decree No. 37 of 1968 but an Order made under such Decree. There might, and I repeat might, have been some substance in the contention of learned Counsel for the respondent that such an Order made by Decree No. 37 of 1968 must be one which falls within the four walls of the Order were it not for the second provision as to the competence of the particular government of the Federation.

In that it is provided that any decision which in effect declares or purports to declare the incompetence of any of the governments in the Federation to make a Decree or Order is null and void. The question I must ask myself here is whether a decision declaring the Public Officers and other Persons (Forfeiture of Assets) Order 1969 null and void because the maker did not comply with the provisions of Decree No. 37 of 1968 is or is not a decision affecting the competence of one of the Governments of the Federation to make the particular Order that was made?

The word used in Decree No. 28 of 1970 is "incompetence" and this word is defined in the Oxford Dictionary as: "Want of requisite ability, power, or qualification, incapacity."

Is the application before me in the substantive suit not in fact one to declare that the Lagos State Government was incompetent to make the Order which is challenged no matter what the reasons may be for such a challenge? I think it is and more so where the challenges is on the grounds of legal competence. In short the challenge is that the Lagos State Government is incompetent to make an instrument which does not fall within the provisions of Decree No. 37 of 1968 and that is one of the matters which falls within Decree No. 28/1970.

The second part of the Writ challenges the Public Officers and Other Persons (making of Reparation) Order 1969 L.S.L.N. No. 14 of 1969 in the same way as the Order L.S.L.N. No. 13 of 1969 is challenged. What has been said in relation to the former applies with equal force to the second part of the Writ.

The final part of the Writ claiming an injunction is consequential upon the declarations sought in the first and second parts of the Writ. The fate of this claim is, therefore, wholly dependant on the fate of the first and/or second part or parts of the Writ.

Now although the argument of learned Counsel for the State was to the effect that Decree No. 28 of 1970 had the effect of ousting the jurisdiction of the courts, his motion paper, however, puts his objection into two categories-one stating that the court has no jurisdiction by virtue of Decree No. 28 of 1970 and the other that the remedy sought by the respondent in the suit would not avail him by virtue of this Decree.

I will deal with the question of ouster of jurisdiction first. The learned author of the 3rd Edition Vol. 9 Halsbury's Laws of England states at page 353 as follows:-

"The right of the subject to have access to the courts may be taken away or restricted by statute, but the language of any such statute will be jealously watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension..."

In the case of Attorney-General v. Bowden 1912 1 K.B. 539 at page 561 Hamilton, J. says this:-

"Where an issue arises upon proceedings before the court, the jurisdiction of the court to dispose of that issue can only be ousted by plain words, and section 7, sub-section 5, has in my view no such effect."

The words used in Decree No. 28 and on which learned Counsel for the applicant relies are not words of ouster of jurisdiction, but words which make it clear that any decision shall be null and void. To constitute an "ouster of jurisdiction" the words used must be such as to affect and deal with the entertaining of the action as opposed to words dealing with the effect of a decision given in such action. I must and do hold, therefore, that there is no ouster of jurisdiction by virtue of Decree No. 28 of 1970. That, however, is not the end for I must further consider the effect of the provision that any decision given in the substantive proceedings, which I have held come within the provisions of Decree No. 28 of 1970, are or become null and void.

Mr G.O.K. Ajayi, learned Counsel for the respondent urges the court to exercise jurisdiction and that even tough the judgment may or would be a nullity, the rights of the plaintiff would have been declared, for, as learned Counsel contended, no one can foretell what the future may bring to the plaintiff if his rights are now declared.

It is difficult if not impossible to find any authority in English Jurisprudence which will be of assistance to this Court, for I know of no parallel nor am I able from researches made to find a parallel in such legal system where an Act of Parliament, while not specifically ousting the jurisdiction of the courts has gone on to declare past and future judgments in a particular issue null and void.

There is, however, this passage in the 3rd Edition of Halsbury's Laws of England Vol. 22, where the learned Author says that:-

"The court will not make a declaratory judgment where the question raised is purely academic, or the declaration would be useless or embarrassing..."

The authorities cited in this passage of the law and which I have had the benefit of perusing are of no assistance whatsoever. Then again there is another passage at page 748 of the same book which states that:-

"There is no jurisdiction to make a declaration on a subject relief in respect of which is beyond the jurisdiction of the court...

Here again the examples given deal with cases of a completely different nature to the one before me, but the principle is clear that no Court exists for the purposes of indulging in what, from the start, would be a completely wasteful and useless exercise. All Courts in every part of the civilised world are jealous of their jurisdiction as well as their powers and such Courts are unwilling to indulge in any exercise which will bring about ridicule or contempt. The granting of a declaratory right or remedy is discretionary and it must always be exercised with due care, caution and judicially.

I, therefore, hold for the reasons already expressed that the motion brought by the learned State Counsel must succeed on the first leg for accepting all the facts as averred in the Statement of Claim as true the plaintiff would not be entitled to any decree against the defendant in the words of Order XXVIII, rule 1 by virtue of the fact that any such decree would be null and void.

I, therefore, dismiss the action. In view of the fact that Decree No. 28/1970 was promulgated after the action was instituted and pleadings ordered and concluded I make no order as to costs.

Motion of Defendant/Applicant succeeds: Action of Plaintiff/Respondent dismissed.