⦿ CASE SUMMARY OF:
A.G, Ogun State v. A.G, Federation (1982) – SC
Bringing an existing law in conformity with the Constitution;
Public Order Act;
1. Attorney-general Of Ogun State;
2. Attorney-general Of Bendel State;
3. Attorney-general Of Borno State;
1. Attorney-general of The Federation
2. Commissioner of Police, Bendel State
3. Inspector-general Of Police
4. Commissioner Of Police, Borno State
(1982) 1-2 S.C. (REPRINT) 7
⦿ LEAD JUDGEMENT DELIVERED BY:
A. Fatayi-Williams, C.J.N
⦿ LAWYERS WHO ADVOCATED
* FOR THE PLAINTIFF
– Chief Adaramaja, the Attorney-General of Ogun State.
– Mr Sanyaolu, the Attorney-General of Borno State.
– Mr. Obasuyi, Attorney-General of Bendel State.
* FOR THE DEFENDANT
– Chief Rotimi Williams, for the defendants.
Acting in exercise of the powers conferred upon him by the provisions of Section 274(2) referred to above, the President of the Federal Republic of Nigeria (hereinafter referred to as the President) made the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 (S.I. No. 5 of 1981).
The Order, which came into force on 10th February, 1981, modified the provisions of Section 1 of the Public Order Act, 1979, by –
(a) substituting “Commissioner of Police” for “Military Administrator”;
(b) substituting a new subsection (5) for the existing sub-section, and
(c) deleting the whole of sub-section (6).
Section 4 subsection (3) was also modified by the deletion of the words “after consultation with the Military Administrator” and the substitution therefore of the words “with the concurrence of the Governor of the State.”
In Section 6 subsection (20) the “Attorney-General of the Federation” was substituted for the “Attorney- General of the State”.
Finally, new sections which conferred specific powers on the Minister charged with the responsibility for police affairs were substituted for Sections 10 and 11.
Section 12, the definition section, was also consequentially amended.
Being dissatisfied with these modifications made in the said Order, the Governments of Ogun State and Bendel State, by originating summons, and the Government of Borno State, by statement of Claim, challenged their validity.
Whether the President has the power to modify the Public Order Act, Order 1981, as he did?
⦿ HOLDING & RATIO DECIDENDI
i. To go back to the Public Order Act of 1979, (No. 5 of 1979), it is self-evident that the act which repealed all the existing Public Order Laws passed or deemed to have been passed by each of the nineteen states, has expressed by its enactment, completely, exhaustively, and exclusively, what shall be the law governing the conduct and control of public assemblies, meetings, and processions throughout the Federation. In short, it has covered the whole field of the subject matter. It therefore took effect as “an existing law” because it is in force immediately before 1st October, 1979. (See Section 274 (4) (b) of the 1979 Constitution.) Again, since the Act was enacted by the Federal Military Government, it took effect, not as a State law as contended by the learned Attorney-General of Ogun state, but as a Federal law and is therefore, deemed to be an act of the National Assembly. Being an Act of the National Assembly, the “appropriate authority” to make such modifications or changes in its provisions is the President of the Federal Republic of Nigeria.
ii. The President, in the Adaptation Order of 1981, substituted the words, “with the concurrence of the Governor of the State” for the words “after consultation with the Military Administrator” used in the Act. This modification, in effect, gives to the State Governor the power to veto the decision of the Commissioner of Police as to whether the assembly, meeting or procession should be held or not. With respect, the Governor of a State has no such power under Section 195 subsection (4) of the Constitution. His power is set out in clear terms in that subsection, the provisions of which I have discussed in detail earlier. To construe the provisions of Section 195 subsection 4 of the Constitution as giving the Governor of a State the power of concurrence as the President has done in the Adaptation Order is, in my view, to do violence to the express provisions of that section.
Consequently, by giving the Governor the power, the President, perhaps inadvertently, has committed an infraction of the provision of the said section. To my mind, it would require very clear and precise words to convert the power granted to the Governor of a State to give directions (which, in any case, the President or the duly authorised Minister could overrule or modify by new directions) into the power of concurrence. It needs no effort to conclude that such clear and precise words are just not there. I accordingly hold that this particular modification is unconstitutional and is therefore null and void and of no effect.
⦿ SOME PROVISIONS
Section 1 subsections (1) to (4) of the Constitution (Basic Provisions) Decree, 1975 (Decree No. 32 of 1975) provide as follows:
(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 the 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 included in the concurrent Legislative List.
(3) Subject to subsection (2) above and to the Constitution of the Federation, 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 16th January, 1966 by the legislature of a Region or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region or State, is inconsistent with any law –
(i) validly made by Parliament 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 paragraph (i) or (ii) above shall prevail and the Regional or State law shall, to the extent of the inconsistency, be void.
Section 11 subsections (1) and (2) of the 1979 Constitution provides as follows:
11 (1) The National Assembly may make laws for the Federation or any part thereof with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
(2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matters referred to in this section, including the provision for maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
Section 194 and 195 of the 1979 Constitution is as follows:
194 (1) There shall be a police force for Nigeria, which shall be styled the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of this Constitution
(a) the Nigeria Police Force shall be organised and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly;
(b) the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.
(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and airfields.
195(1) There shall be an Inspector-General of Police who, subject to Section 196(2) of the Constitution, shall be appointed by the President, and a Commissioner of police for each State, who shall be appointed by the Police service Commission.
(2) The Nigeria Police Force shall be under the command of the Inspector-General of Police, and any contingents of the Nigeria Police Force stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the Commissioner of Police of that State.
(3) The President or such other Minister of the Government of the Federation as he may authorise in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with.
(4) Subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorise in that behalf, may give to the Commissioner of police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with: Provided that before carrying out any such directions under the foregoing provisions of this subsection the commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions.
(5) The question whether any, and if so what, directions have been given under this section shall not be enquired into in any court.
Section 274 of the 1979 Constitution provides that, subject to its other provisions, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the said Constitution. It is also provided that such an existing law shall be deemed to be an act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by the said Constitution to make laws. Finally it is provided in subsection (2) of the same section that – (2) The appropriate authority may at any time by order make such changes in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
The phrase “appropriate authority” is defined in the section as meaning the President in relation to the provisions of any law of the Federation or any person appointed by any law to revise or rewrite the laws of the Federation. In the same section “existing law” is defined to include any enactment or instrument whatsoever which is in force immediately before the 1st October, 1979, the date the Constitution came into force; the word “modification” used in Section 274(1) is also defined to include – “addition, alteration, omission or repeal”.
In Ex Parte McLean (1930) 43 CLR 472 at page 483, Dixon, J., when dealing with the exercise of concurrent legislative powers, observed rightly as follows: “When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least, when the sanctions they impose are diverse (Hume v. Palmer (1926) 38 CLR 441). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provides what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon state law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such intention, it is inconsistent with it for the law of a state to govern the same conduct or matter.”
In Section 4 subsection (3) of the Public Order Act (No. 5 of 1979), it is provided that where a commissioner of Police is of the opinion, by reason of the particular circumstances existing in the State concerned or part thereof, the powers conferred upon him by the section will not be sufficient to prevent serious public disorder being occasioned by the holding of public assemblies, meetings, or processions in the State or any part thereof, the commissioner may “after consultation with the Military Administrator of the State” by order published in the State Gazette, and in such other manner as he may deem sufficient to bring the order to the knowledge of the general public in the state, prohibit the holding in the State, or any such part of it, of all public assemblies, meetings, or processions, specified in the order, for such period not exceeding fourteen days as may be so specified.
⦿ NOTABLE DICTA
As the court was anxious to go to the heart of the matter and did not wish its judgment to be impinged by technicalities, it decided to sweep aside formalism; and there being no objection by learned counsel for the defendants, and leave having been granted, all amendments necessary to bring the suits into conformity with the provisions of Section 20 of the Supreme Court act, 1960 were accordingly made. – U. UDOMA, J.S.C. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)
The provision for an exclusive Legislative List and a Concurrent Legislative List in our Constitution, starting with the 1954 Constitution, was taken from the Constitution of the Commonwealth of Australia, Section 109 of which declares invalid pro tanto any State legislation which conflicts with any commonwealth Act on any matter in respect of which both the common-wealth and the States are empowered to make laws. – Fatayi-Williams, C.J.N. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)
I would only wish to add that, where identical legislations on the same subject matter are validly passed by virtue of their Constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject matter. To say that that law is “inconsistent” in such a situation would not, in my view, sufficiently portray clarity or precision of language. – Fatayi-Williams, C.J.N. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)
That must be so, because the making of law for the maintenance of law and order and securing of public safety and public order is a very wide field indeed the responsibility for which must be shared between the National Assembly and the State House of Assembly. It should be regarded and conceived as a joint enterprise within the limitations imposed by the Constitution. – U. UDOMA, J.S.C. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)
The Public Order act (No. 5 of 1979) having taken effect as an Act of the National Assembly and has since 1st October, 1979, been operating as such throughout the Federation, it follows that by virtue of the provisions of Sections 274(2); (4)(a)(i) of the Constitution the President was on the 10th of February, 1981, the only competent authority to have modified it by Order in terms of the provisions of the Constitution so as to bring the law into conformity with the Constitution. – U. UDOMA, J.S.C. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)
The reason for this is that the power conferred on the Governor by the new words “with the concurrence of the Governor of the State” is by far wider than what is contemplated should be the power of the Governor under the provisions of Section 195(4), bearing in mind the proviso thereto which places the ultimate authority over the police squarely on the President. I am of the view that the new words “with the concurrence of the Governor of the State” should be struck down on the ground that the same are unconstitutional. In any case they are totally void, being inconsistent with the relevant provision of the Constitution. – U. UDOMA, J.S.C. A.G Ogun State & Ors. v. A.G Federation & Ors. (1982)