⦿ CASE SUMMARY OF:
The Governor of Kaduna State v. Lawal Kagoma (1982) – SC
The Governor of Kaduna State
(1982) All N.L.R 160;
(1982) 6 S.C. 44;
⦿ LEAD JUDGEMENT DELIVERED BY:
A. Fatayi-Williams, C.J.N
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Dr S.E. Mosugu;
* FOR THE RESPONDENT
– Mr A.C. Vigo;
This case has to do with whether the Governor of Kaduna State can set up a commission of enquiry to look into inquire into the affairs of local government.
1. Whether the two Laws, the Commissions of Inquiry Law (Cap. 25) Laws of Kaduna State, and the Local Government Law (No.1 of 1977) by virtue of which the Governor of Kaduna State (1st Defendant/Appellant) set up the Commission of Inquiry into the affairs of the Kaduna Local Government Council, are existing laws on 5th March, 1980?
2. If both Laws are existing laws on 1st October, 1979, and having regard to their respective provisions, do they exist and in force side by side or does section 98 of the later Law, that is, the Local Government Law (No.1 of 1977) which deals with inquiries into the affairs of Local Government Councils of Kaduna State specifically repeal, albeit by implication, the provisions of section 2 of the Commissions of Inquiry Law (Cap. 25) which is an earlier Law dealing with Commissions of Inquiry generally?
3. Could the 1st Defendant/Appellant set up the Commission of Inquiry, as he had done, under both Laws or under either of the two Laws?
4. Can the 1st Defendant/Appellant set up the Commission of Inquiry under section 2 subsection (1) of the Commissions of Inquiry Law (Cap. 25)?
⦿ HOLDING & RATIO DECIDENDI
1. FOR ISSUE 1, the Supreme Court held, “According to section 274 subsection 4 (b) of the 1979 Constitution “Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date, comes into force after that date.” Since both Laws came into force before 1st of October, 1979, when section 274 of the Constitution came into force, I hold that the two Laws are existing laws within the meaning of that section.”
2. FOR ISSUE 2, the Supreme Court held, “Moreover, when the later statute, as in the present case, is worded in clear and affirmative language, restricting the powers conferred therein to a specified authority and to specific subject, without any negative expressed or implied, it becomes less likely that the later statute is intended to repeal the earlier statute. It only makes inapplicable the provisions of the earlier statute so long as the provisions of the later statute dealing with specific matters are in force. Thus, in Luby v. Warwickshire Miners Association (1912) 2 Ch. 371, it was held that statutes which regulate the affairs of trade unions have merely exempted them, by implication, from the operation of earlier statutes relating to unlawful combinations. For these reasons, I do not think that the provisions of section 98 of the Local Government Law (No.1 of 1977) repealed, by implication, those of section 2 of the Commissions of Inquiry Law, (Cap. 25) was referred to in section 98 sub-section (2) of the Local Government Law clearly indicates that there is no implied repeal of the earlier law. Both Laws, to my mind, exist side by side and should be interpreted accordingly, bearing in mind that the words of an enactment will generally be understood in the sense which they bore when the enactment was being read the day after it was passed into law.”
3. FOR ISSUE 3, the Supreme Court held, “With this rule in mind, I fail to see how the “Executive Council” established by Decree No. 32 of 1975 could be found to be the same “body of commissioners” conveniently referred to as the “executive council of the State” in section 171 subsection (5) of the 1979 Constitution. Furthermore, the only constitutional function which that “executive council of the State”, after it has been established by the Governor of the State in accordance with section 171 (5) of the 1979 Constitution, is empowered to discharge is to declare, by resolution passed by a two-thirds majority, that the State Governor is no longer “capable of discharging the functions of his office.” (See section 171(1) (a) of the said Constitution). To that extent, the provisions of section 98(1), if, indeed, it confers any other power on that “executive council” (although it is my view that it does not) that other power would be inconsistent with that conferred by section 171 of the 1979 Constitution. Since section 98(1) has not been modified by the Governor of Kaduna State, as he could have done by an Order made by him by virtue of the powers conferred upon him by section 274 of that Constitution and thereby bring the Law into conformity with the provisions of the 1979 Constitution, the said section is void for inconsistency. It, therefore, follows that no inquiry into the affairs of the Kaduna Local Government Council could be set up by the 1st Defendant/Appellant by virtue of that section of the Local Government Law, (No.1 of 1977). Does it then mean that he cannot inquire into the affairs of any Local Government Council in Kaduna State? I do not think so.”
4. FOR ISSUE 4, the Supreme Court held, “Having regard to the words “or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare” used in section 2 subsection (1), there is no doubt in my mind, and I so hold, that by virtue of this “blanket or all embracing” provision, the Governor of Kaduna State, on his own and without reference to any body or authority, can set up the Commission of Inquiry, as he had done, to look into the affairs of the Kaduna Local Government Council. Sections 21 and 22 of the Commissions of Inquiry Law (Cap. 25) and the definitions of “Governor” and “Governor-in-Council” in section 3 of the Interpretation Law of Kaduna State (Cap. 52) make this abundantly clear. The Federal Court of Appeal was, accordingly, in error in holding that section 2 of the Commissions of Inquiry Law (Cap. 25) had been impliedly repealed by Section 98 of the Local Government Law of Kaduna State (No.1 of 1977). The Court was also in error in holding that the 1st Defendant/Appellant could not set up the Commission of Inquiry by virtue of his powers under section 2 of the Commissions of Inquiry Law.”
⦿ SOME PROVISIONS
Section 2 of the Commissions of Inquiry Law, (Cap. 25) of the Laws of Northern Nigeria, 1963):
“2(1) The Governor may, whenever he shall deem it desirable, issue a commission appointing one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to hold a commission of inquiry into the conduct of any officer in the public service of Kaduna State, or of any chief, or the management of any department of the public service, or of any local institution, or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare. The Governor may appoint a secretary to the commission, who shall perform such duties as the commissioners shall prescribe”.
Section 98 of the Local Government Law, 1977 (No.1 of 1977):
“98 (1) The Executive Council of the State may cause such inquiries to be held at such times and in such places as it may consider necessary or desirable for the purposes of this Law.
(2) Subject to the other provisions of this subsection, the Executive Council may appoint in writing any person to conduct an inquiry and any person so appointed shall cause a notice of the time and place of the inquiry to be given to the Local Government and persons appearing to him to be interested; and notwithstanding the provisions of the Commissions of Inquiry Law, every inquiry requiring to be held under this Part shall
(a) Where such inquiry is to be conducted by one person, be conducted by a High Court Judge or other judge of not less than equivalent rank; and
(b) Where such inquiry is to be conducted by two or more persons it shall be headed by a High Court Judge or other judge of not less than equivalent rank.
Section 36 of the Constitution of Northern Nigeria, 1963, (N.N. Law No. 33 of 1963):
“36(1) There shall be an Executive Council for the Region, whose function shall be to advise the Governor in the Government of the Region and which shall consist of the Premier and such other persons, being Ministers of the Government of the Region, as the Governor, acting in accordance with the advice of the Premier, may from time to time appoint”.
Section 40 subsection (1) of the 1963 Constitution that:
“in the exercise of his functions under this Constitution, the Constitution of the Federation, or any other law, the Governor shall act in accordance with the advice of the Executive Council or a Minister of the Government of the Region acting under the general authority of the Executive Council …”
Section 7(1) of Decree No. 32 of 1975:
“(a) The Military Governor as Chairman;
(b) One senior officer each from the Nigerian Army, the Navy, and the Air Force of the State;
(c) The most senior officer of the Nigeria Police in the State; and
(d) Such other members (to be known as commissioners) as the Military Governor, in his direction may, from time to time appoint”.
It is provided in Sections 162, 171(1)(a), and 171(5) of the 1979 Constitution as follows:
“162(1) There shall be for each State of the Federation a Governor.
(2) The Governor of a State shall be the Chief Executive of that State.
171(1) The Governor or Deputy Governor shall cease to hold office if
(a) By a resolution passed by two-thirds majority of all the members of the executive council of the State it is declared that the Governor or Deputy Governor is incapable of discharging the functions of his office; …
(5) in this section, the reference to executive council of the State’ is a reference to the body of Commissioners of the Government of the State, however so called, established by the Governor and charged with such responsibilities of the functions of government as the Governor may direct.”
Section 274 subsection 4(b) of the 1979 Constitution “Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date, comes into force after that date.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It should be pointed out, even at this stage, firstly, that it is only in subsection (5 referred to above that any attempt was made to indicate the membership of the “executive council of a State”, and secondly, that, from the wording of the said subsection, both the Governor and the Deputy Governor of a State could not be, and are not, members of that “executive council”. Moreover, it is clear from the provisions of section 174 that the commissioners are mere advisers to the Governor who is also “empowered to appoint Special Advisers” under section 177 to assist him in the performance of his functions. In short, both the Commissioners and the Special Advisers are no more than State Executive functionaries. This was the position when the Governor of Kaduna State set up the Commission of Inquiry on 5th March, 1980. – Fatayi-Williams, C.J.N. Kaduna v. Kagoma (1982)
As I indicated earlier, the words of a statute will generally be understood in the sense which they bore when the statute was passed into law. – Fatayi-Williams, C.J.N. Kaduna v. Kagoma (1982)
I would respectfully agree with my Lord, the Chief Justice, that the short answer to that is that the law is available to the Governor since under Section 2 (1) thereof the Governor can institute an inquiry into any matter in respect of which in his opinion, an inquiry would be for the public welfare and any matter includes local government. – Nnamani, JSC. Kaduna v. Kagoma (1982)
As regards implied repeal of statutes generally, it is now well settled that the Courts tend to lean against accepting an implied repeal of any law. The rationale of this attitude by the Courts is of course that if it is the intention of Parliament (or any legislature) to repeal an existing law it should be so stated by express words. – Nnamani, JSC. Kaduna v. Kagoma (1982)
A statute repeals another by implication only if the terms of the later one are so inconsistent with and so repugnant to those of the later one that they cannot stand together. – Nnamani, JSC. Kaduna v. Kagoma (1982)