POWERS OF THE FEDERAL REPUBLIC OF NIGERIA

AND FEW CONSTITUTIONAL CONCEPTS

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Amendment or Alteration
• The Executive Powers of the Federation
• Judicial Powers
• Further Powers of the Court
• The Doctrine of Ripeness
• Retrospective Legislation
• Few Constitutional Concepts
• The Position of Sovereignty in Nigeria
• Ministerial Responsibility
• Separation of Powers

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

The various constitutions of Nigeria from 1963 vested the legislative powers of the Federal Republic of Nigeria in a Legislature which  usually consists of a Senate, and a House of Representatives.

This assembly has powers to make laws for the peace, order and good government of the Federation or any part thereof for all the matters that are usually included in the Exclusive legislative list set out both in the 1963, 1979 and 1989 Constitutions respectively.

In addition to the powers conferred as above the same National Assembly is enjoined to make laws with respect to the following matters, that is to say:

• Any matter in the concurrent legislative list set out in the first column of part II of the relevant schedule to the extent prescribed by the second column opposite thereto;
• Any other matter with respect to which it is empowered to make laws in accordance with the provisions of any particular constitution.

It must however be borne in mind that if any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law of the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.

This in turn points out that the House of Assembly of a state equally has powers to make laws for the peace, order and good government of the state or any part thereof in respect of any matter not included in the exclusive legislative list itemised above in addition to any other matter which is included in the Concurrent legislative list of any particular constitution of the Federal Republic of Nigeria.

Lastly, it must be noted that these legislative powers of both the  National and state assemblies are 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. See section 8 of the 1979 Constitution and 1989 Constitution of the Federal Republic of Nigeria (Promulgation) Decree.

However, the constitution stipulates and prohibits that neither of the assemblies has any power to make any law in relation to any criminal offence whatsoever, which shall have retrospective effect:

The provisions of the Constitution read as follows:

“Not withstanding the foregoing provisions in this section, the National Assembly or a House of  Assembly shall not, in relation to any Criminal offence whatsoever, have power to make any law which shall have retrospective effect.”

OBJECTIVES

At the end of this unit, you should be able to:

identify  and   define   some    doctrines   like   ripeness,   ministerial responsibility and powers of the court

identify the various historical circumstances leading to the different sources of these concepts.

Comments

It must be noted that the Army took over the reins of government in Nigeria during the following periods of time to wit 1966, 1967, 1983, 1985 and 1995 respectively with what looks like a threat to the rule of law by some critics and dangerous distortions of some constitutional provisions.

Thus, the coveted provisions of the constitutions came under the subjugation of a Decree, and as such a Nigerian constitution shall not prevail over a Decree and nothing in the constitution shall render any provision of a Decree void to any extent whatsoever.

It therefore means that a Federal Military Government may in fact suspend and modify the provisions of any constitution to the extent desired by it, (ad libitum). Hence, once a Decree is made as it was done by Decree No. 1 of 1966 nothing, and not even the provision of any Constitution can derogate from it. What we therefore have during those periods in Nigeria under various military regimes is the SUPREMACY OF DECREES over the Constitution, and the sub-ordinate roles of the provisions of the Constitution to that of a Decree.

MAIN CONTENT

Amendment or Alteration

No alterations or amendment of the provision of the constitution can be made, unless the procedure provided for in the constitution itself for such an alteration is complied with. It must be noted that such  provisions are indeed cumbersome, very hard to overcome, special, and or they appear to be a syciphean task to overcome.

For instance, to amend the Switzerland Constitution, a referendum of  the electorate has to be done, while in Belgium a prescriptive quorum has to be made. In America, an initiation to amend or alter any part of the constitution must be done by two-thirds of both Houses of Congress and ratified by the Legislature of three-fourths of the states. In the alternative, an initiation by two thirds of the states has to be done first which has to be ratified by the conventions in three-fourths of the states.

Professor DE Smith in his book titled the New Commonwealth and its Constitutions published by Stevens & Sons London had this to say on Jamaica, Malaysia, Nigeria, Trinidad and Uganda-

“Bills    for    constitutional   amendment    in    Jamaica require the support of an absolute majority of all members in each House; or, in the case of entrenched and specially entrenched provisions, a two-thirds” majority of all members in each House, subject to submission to a referendum if the senate does not give the    necessary    majority.         Specially    entrenched provisions can not be altered in any event without recourse to a referendum. The two-thirds’ majority rule is likely to prove a substantial barrier to the adoption of amendments to which the opposition does not agree; for eight out of twenty-one senators are the nominees of the Leader of the opposition”.

The two-thirds rule appears in one form or another in all the constitutions – in a diluted form in India but reinforced in Malaysia, Nigeria, Trinidad and Uganda by the requirement that the necessary support must be forthcoming at both the second and third readings of  the Bill.

However, the position in Nigeria is contained in all the sections of its different constitutions. See S. 4(1) of the 1963 Constitution, section 9 of the 1979 Constitution and section 10 of the constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989 which state mutatis mutandi as follows:

• The National Assembly may, subject to the provisions of this Constitution alter any of the provisions of this constitution.
• An act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the states
• An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
• For the purposes of section 8 of this constitution and of sub- section (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in section 44 and 45 of the 1979

Please note that while chapter IV of the Constitution deals with FUNDAMENTAL RIGHTS, section 8 of 1979 Constitution deals with the creation of new states and boundary adjustment.

And for clarity of purposes the provisions are as follows:

8 (1)    An Act of the National Assembly for the purpose of creating a new state shall only be passed if:

• a request, supported by at least two-thirds majority of members (representing the area demanding the creation of the new state) in each of the following, namely :
• the Senate and the House of Representatives;
• the House of Assembly in respect of the area; and
• the local government councils in respect of the area; is received by the National Assembly;
• a proposal for the creation of the state is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for creation of the state originated;
• the result of the referendum is then approved by a simple majority of all the states of the Federation supported by a simple majority of members of the Houses of Assembly; and
• the proposal is approved by a resolution passed by two-thirds majority of members of each house of National
• An Act of the National Assembly for the purpose of boundary adjustment of any existing State shall only be passed if:
  • a request of the boundary adjustment, supported by two-thirds majority of members (representing the area demanding the boundary adjustment) in each of the following, namely:
• the Senate and the House of Representatives;
• the House of Assembly in respect of the area, and
• the local government councils in respect of the area, is received by the National Assembly; and
• a proposal for the boundary adjustment is approved by
• a simple majority of members of each House of the National Assembly, and
• a simple majority of members of the House of Assembly in respect of the area

The Executive Powers of the Federation

The executive powers of the Federation is vested on the President of Nigeria, and he is at liberty subject to the provisions of any law made by the National Assembly to delegate such functions to the Vice-President and Ministers of the Government of the Federation or Officers in the Public Service of the Federation.

Also the executive powers of a State is vested in the Governor of that State and he may, subject to the provisions of any law made by a House of Assembly delegate such powers to his Deputy Governor and Commissioners of the Government of that State, or officers in the Public Service of the State. But note that the executive powers shall be so exercised as not to impede or prejudice the exercise of the executive powers of the Federation or to endanger the continuance of the Federal Government of Nigeria.

It should also be noted that the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session and except with the prior approval of the Senate, no member of the Armed Forces of the Federation shall be deployed on combat duty outside Nigeria.

Judicial Power

The judicial powers are vested in both the courts established for the Federation and the States. These courts are contained in section 6(3) (4) and (5) of the 1979 Constitution.

And by section 6(6) (a) and (b) the judicial powers therefore vested has extended to all inherent powers and sanctions of a court of law.

It also extends to all matters between persons, or between government  or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and of obligations of that person; it does not extend, except as otherwise provided by the constitution to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive principles of State Policy set out in Chapter II of the 1979 Constitution and shall not as from the date when the 1979 constitution was promulgated extend to any action or proceedings relating to any existing law made on or after 19th day of January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

Comments

The constitution of Nigeria loaths to recognise the OUSTER of the court’s jurisdiction, but since a Military Decree is superior to the constitution more often than not, the ouster of court’s jurisdiction are prevalent and they constitute hair splitting occurrences in our statute books under the Military dispensation.

For instance in Lakanmi and another Vs. A.G. (Western State) and other Edict No. 5 of 1967 (Western State) stated as follows:

“No defect whatsoever in respect of anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or anyproceeding, in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any Court of law.”

When this edict was challenged the Federal Government passed another Decree No. 45 of 1968 which validated all actions done under edict No. 5 of 1967.

Similarly, the Failed (Banks) (Recovery of Debts) and Financial Malpractices in Bank Decree No. 18 of 1994 as amended provides in section 1(5) that the supervisory jurisdiction or power of judicial review of a High court shall not extend to any matter or proceeding before the tribunal under this Decree and that if any proceeding relating to the supervisory jurisdiction or power of judicial review of a high court on a cause or matter brought before the tribunal is before any High court  after the commencement of this Decree, such action shall abate, cease or be deemed to be discontinued without any further assurance other than this Decree.

The Decree in fact went on to usurp the powers of the Court when it  says in sections 2(1) (a) and (2) as follows:

Any part-heard proceeding, relating to a matter for which S. (1) under the tribunal has jurisdiction, which is pending before any Court on the date of the making of this Decree – (a) may, in civil case, be discontinued with the leave of that court and transferred to the tribunal for fresh hearing under the Decree.

(2)       All    proceedings   shall   be    brought   before   the    tribunal   in accordance with the provisions of this Decree.

Such legislations may be replete in the statute books of Nigeria on close scrutiny, but the courts loath to see such Decrees pass as authentic without proper examination. Hence the Court will not allow such ouster clauses to go unchallenged when there are sufficient reasons so to do.

The court guides jealously these ouster of court’s jurisdiction and usually views them with jaundiced eyes by subjecting them to the following acid tests:

For instance, in Anisminic Ltd V. The Foreign Compensation Commission & and another and Dr. S.D. Onabamiro V. Chief Bola Ige and others the Courts have tenaciously intervened in cases of patent irregularity. For instance thecourts have intervened under the presumption of the law that justiciable issue is not to be denied the  rights of trial by the Courts, save by clear words in a statute.

Also they have intervened in agreements which are contrary to public policy and which oust the courts in adjudicating on contract cases.

The courts have intervened with the ouster of courts jurisdiction where their jurisdiction have been impliedly curtailed and not expressed in clear terms. For instance the courts have authority to determine whether a particular authority was the one really authorised to act as it was empowered to determine.

The courts will also be permitted to intervene and determine whether an authority has addressed itself to the matters properly put before him.

Lastly the Courts will intervene and decide on cases where the  principles of natural justice have been violated.

In the case of Onabamiro (supra) the decisions reached by Lord Pearce in Anisminic case (supra) were re-echoed as follows:

The lack of jurisdiction of a tribunal may arise in many ways notwithstanding the provisions of the ouster clauses to wit:

• Where there is the absence of the formalities and conditions precedent that would confer jurisdiction on the said Tribunal before embarking on its inquiry, for instance where the tribunal could not form a quorum, or
• Where the tribunal makes a decision or makes an order that it has no power to make; or
• Where the tribunal departs from the rules of natural justice; or
• Where the tribunal asks itself a wrong question; and
• Where the tribunal considers matters it ought not to

Also must be mentioned the case of Nigerian Ports Authority V. Panalpina Wood Transport Nigeria Ltd. and others which holds that matters which are not within the four walls of a Decree can not enjoy  the protection of the ouster of the court’s jurisdiction.

Lastly the cases of Agbaje V. C.O.P. and Re: Olayori and others should be remembered where legislative measure to oust the jurisdiction of the courts from reviewing administrative actions have been seriously rebuked for contravening the principles embedded in the rule of law.

Further Powers of the Court

The courts have also power to declare an edict invalid on the grounds of its inconsistency with a Decree. See Onyuike V. Eastern States interim assets and liabilities agency, Bronik Motors Ltd. and another Vs.  WEMA Bank.

However in the case of Military Governor of Ondo State V. Adewumi  the Supreme court gave scintillating accounts of the powers of the court over such Edicts and many more as follows:-

• 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
• A Military Governor has no power to make any law which is inconsistent with any law made by the Federal Military Government before or after December, 31^st 1983 when the then Federal Government came into power
• By the provisions of section 1 subsections 1 and 2 of Decree No. 1 of 1984 which preserved sections 6 and 236 of the Constitution of the Federal Republic of Nigeria 1979, Chieftaincy questions among others are matters within the jurisdiction of the court of every state.

Therefore, any edict or law of a state which purports to remove chieftaincy questions or matters from the jurisdiction of Decree No. 1 of 1984 (section 1 subsections 1 and 2) and sections 6 and 216 of the 1979 Constitution.

A High Court is therefore competent to entertain an action challenging an edict on the ground that it is inconsistent with the provisions of a Decree or the unsuspended provisions of the 1979 Constitution.

Honourable Justice Kayode Eso (JSC rtd) had this to say:

“Edict No. 11 of 1984 (of Ondo State) which purports to delimit the jurisdiction conferred by the constitution is void. The edit is not a bean stock planted by JACK. It cannot outgrow itself. It remains puny vis-à-vis the constitution or the portions thereof unsuspended and any Decree.”

As for Decree No. 13 of 1984, like its predecessor Decree No. 28 of the 1970, nothing therein stops an attack on an edict if it is inconsistent with a Decree. See Chief Adebiyi V. H.E. Col. Mobolaji Johnson¹⁰.

The Doctrine of Ripeness

Please note that there is a gulf of difference between actual ousting of the court’s Jurisdiction from entertaining an action and a proviso demanding something to be done before an action can be entertained in  a court of law.

This proviso is not and can never be construed as OUSTING OF THE COURTS’ Jurisdiction.

In the main it must therefore be noted that the procedural requirements before one can take an action to the court is not a bar to the jurisdiction of any court.

Until those avenues or remedies are complied with and exhausted actions taken straight away to a high court in defiance of the statutory pre-conditional regulations will be struck out as being procedurally ultra-vires. See Sunday Eguamwense V. James Amashizemwen decided by the Supreme Court of Nigeria.

The case decided that if a plaintiff has not challenged the validity of any decision of the prescribed authority (as demanded by the Bendel State Chiefs Law) either by appeal to the Executive Council for review, or by certiorari removing it to the High Court to be quashed, it is inappropriate to do so by Declaration.

Similarly in O.A. Akintemi and 2 others Vs. Onwumechili it is graphically stated without contradictions that when a matter is for the domestic domain of any body, institution or authority as enshrined in the statute, it is not permitted to come to court until all avenues have been exhausted.

Such issues are then not justiciable. This view is equally adopted in the cases of Thorne V. University of London R. V. Dun Sheat, Ex-Parte Meredith and University of Lagos and 2 others Vs. Dr. Dada.

This is known as Justice Halan’s legal calculus or the doctrine of RIPENESS. The doctrine has been applied in series of cases like  Falomo V. Lagos State Public Service Commission where it was held that unless the plaintiff has exercised his right under the proviso to the Regulation 52 of the Lagos State Public Service Rules, and a decision unfavourable to him has been given by the Commission pursuant to the exercise of its power under the proviso, his application will not succeed and he is strongly advised not to come to court as of first instance until he has exhausted all administrative channels opened to him.

Also variable provisions have been made in the Nigerian local government law stipulating that a notice of intention to sue is a necessary condition precedent to the commencement of an action  against a Local Authority. See Shafiu V. Kaduna Native Authority¹⁷ Kaduna L.A. Vs. MakudawaKusada V. Sokoto Native Authority.

Also must be noted the decision in Animotu Abike Yesufu V. Ibadan  City Council and another which states that the provisions of section 274 of the Local Government Law (Cap 68) Laws of Western Region are mandatory and therefore any failure to comply with them will debar a court from entertaining any action brought against any Local Government Council established under the provisions of the law.

For further cases see Alexander D. Yaskey V. The President Councillors and Citizen of Freetown, Aiyemobuwa V. Ondo Western District and another (1960) Dramani Ngelega V. Nongowa Tribal Authority²³.

Retrospective Legislation

Retrospective legislation are offensive to the principles of social justice. They are inimical to progress and unwarranted in any progressive country. They should be discouraged and disallowed at all times.

They look like a victimising trap to catch some political opponents and they are indeed unsuitable to any country that recognises the rule of law. That is why Section 4(9) of the 1979 Nigerian constitution prohibits the making of them in relation to any criminal offence whatsoever.

But what we have in a military regime is that a law may be made to start operating from the past which is outside the period of its birth/statutory origin. See Decree No. 45 of 1968 which validated all actions done under Edict No. 5 of 1967 retrospectively (when edict No. 5 of 1967 (Western State) was successfully challenged as a legislative judgement in Lakanmi V. A.G. Western State of Nigeria.

Please note that although both edict No. 5 of 1967 and Decree No. 45 of 1968 were declared ultra vires, null and void by the Supreme Court of Nigeria yet this decision was set aside by Decree No. 28 of 1970 by the Federal Military Government (Supremacy and Enforcement Powers) Decree which in our own opinion has a retrospective effect and connotation.

However, one may suggest that Decree No. 105 of 1979 titled the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) has repealed Decree No. 28 of 1970 discussed above.

Another area worthy of note are sections 36 and 43 of the Land Use Act where Tobi JCA in the Hand Book on the LAND USE ACT had this to say:

“If the original owners of the land performed any of the acts under sections 36 and 43 before the promulgation of the Act, they would not have committed any office.”

Could the expression “at the time the offence took place” be construed  to mean the date before the promulgation of the Act as it affects the rights of the original owners of the Land?

If this interpretation is accepted, then the provisions of the Act have retrospective effect and therefore could be said to contradict section 35(7)”.

Few Constitutional Concepts

Parliamentary Sovereignty

This expression “Parliamentary Sovereignty” is otherwise called “legislative supremacy” and it implies the fact that parliament has absolute authority to issue orders and enact laws that are binding on every person within the area of its jurisdiction. These laws or orders when made are obligatory on the citizens and cannot be challenged or abrogated by any arm of the government.

Parliamentary sovereignty is a borrowed relic of the English system of government which became operative as a result of the conflict between the crown and the parliament in England.

Supremacy of parliament is therefore recognised in any country that is having no written constitution. It therefore means that any elected body of men called the parliament can pass any law on any topic which  affects the interest of persons.

Please note that the word “Parliament” has many names in many countries. In Britain for example, parliament includes both the  House  of Commons, the House of  Lords and the Queen.  In the United States of America, parliament is the Congress; in France for example, parliament is called “the National Assembly” and in Nigeria, Parliament is made up of the House of Representatives, the Senate, and the President of the Republic in the 1979 and 1999 Federal Constitutions of Nigeria.

Because parliament is supreme, it can therefore make and unmake, it  can legalise illegality and in some occasions it can pass laws which originally were meant for men to include women. Thus, no arm of the government can control a parliament in its discretion hence whenever the parliament errs; nobody has a voice on the matter for it is the parliament itself that can correct its own errors and no one else.

The supremacy of parliament means therefore that any law enacted by the parliament overrides any form of law. Parliament is very powerful and supreme because it can by itself, extend or shorten its own life; and as a glaring example, the British Parliament extended its life span twice during the two world wars.

However certain limitations are placed on the law making power of parliament in England. One is that no parliament can make any law which would bind its successors. Put in other words “no current parliament can legislate to bind its successor” as it was decided in the case of Ellen Street Estate Vs. The Minister of Health which is in line with the decision reached in Vauzhall Estate V. Liverpool Corporation.

Another restriction on parliamentary supremacy is that a parliament can only legislate within its legitimate jurisdiction. Thus authority cannot extend beyond its realms.

The Position of Sovereignty in Nigeria

Parliamentary sovereignty does not exist in Nigeria and in its place what we have is the sovereignty of the Nigerian Constitution. This is so because Nigeria has a written constitution and as such superiority is given to the constitution other than the parliament.

The same position obtains in Canada, United States of America,  Zambia, Australia and other countries that have rigid or written constitution.

Therefore, every power in the legislature, judiciary, executive and so on is being controlled by the obtaining constitution.

This argument is fortified both by the 1963, 1979 and the 1999 Constitutions of Nigeria. Chapter one section 1 of the 1963 Republican Constitution of Nigeria states as follows:

This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of section 4 of this Constitution, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

In the same vein chapter one Part 1 section 1(1) of the 1979  Constitution of the Federal Republic of Nigeria talks of the supremacy of the Constitution where it provides as follows:

This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Section (2)

The Federal Republic shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

Section (3)

If any other law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other laws shall to the extent of the inconsistency be void.

Thus the supremacy of the constitution is protected from erosion by the authority of an independent judicial body as it was decided in the case  of Doherty V. Balewa where the plaintiffs successfully challenged the Commission and Tribunals of Inquiry Act 1961 No. 26 as being unconstitutional by some sections contained thereof. Hence  the  Tribunal and Commission of Inquiry Act 1961 was said to have exceeded the power of Parliament under the constitution.  This,  in effect, confers supremacy on the constitution and not on the Parliament; and the decision reached in this case is similar to that of Bribery Commissioners Vs. Ranashinghe.

The supremacy of the constitution therefore means that the constitution binds all persons within the state, that it overrides all laws in the state and that all laws and all acts of all the arms of the government do derive their validity from the constitution.

However, it must be noted that during emergency, like in a military take-over some provisions in the constitution may be abolished. This is what happened in Nigeria during the Military rule in 1966 when  Decrees were made to override the constitution as it was contained in Decree No. 1 of 1966 Section 1(2) in Nigeria.

However, you should note that for the supremacy of the constitution to have proper meaning and backing, the court must of necessity have power to pronounce on the validity of the government because it is part of the functions of the judiciary to pass judgements on the validity of acts, omissions, and the decisions of the executive with all other arms of the government (including the administrative tribunals) so that considerable opportunity will be afforded the citizens in the protection  of their rights.

But the power of such courts may be ousted as discussed earlier during the Military rule for instance, section 6 of the Constitution (suspension and modification) Decree of 1966 provides as follows:

…….any decision whether made before or after the commencement of this Decree by any court of law inthe exercise or purported exercise of any powers under the constitution or any enactment of law of the Federation or of any State which has purported to declare or shall hereafter purport to declare as invalid the provisions of any Decree or of any Edict(in so far as the provisions of the Edict are 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.

Similarly Decree No. 28 – The Federal Military Government (Supremacy and Enforcement Powers) Decree, 1970 has made it clear that a Decree is the supreme law of the land under the military regime.

Ministerial Responsibility

Ministerial responsibility means that all the ministers are collectively responsible to the elected parliament for the general policy of the administration. This responsibility is centred around the principle of accountability.

Aihe and Oluyede quoted Chamberlain as describing collective responsibility as:

absolute frankness in our private relations and full discussions of all matters of common interest …..the decision freely arrived at should be loyally supported and considered as the decisions of the whole government. Of course there may be occasions in which the difference is of so vital a character that it is impossible for the minority …..to continue their support and in this case the ministry breaks up orminority number or numbers resign.

In another sense, ministerial responsibility means the personal responsibility or liability of a particular minister for all  the consequences of his ministry’s actions. And in the words of O.H. Philips: A minister must accept responsibility for the actions of the civil servants in the Department, and he is expected to defend them from public criticism, unless they have done something reprehensible which he forbade or of which he disapproves and of which he did not have and could not reasonably be expected to have had previous knowledge. In the latter case, which is unusual, he may dismiss them.

Separation of Powers

The functions of the government were analysed firstly by Aristotle who was a Greek Philosopher; and in the 17th Century the doctrine of separation of powers was developed by John Locke, who saw in it a  way of freeing mankind from the injustice and oppression which  resulted from an absolute system of government.

Locke therefore concluded that the powers of the government should be shared between three independent bodies called the Legislature, the Executive and the Judiciary.

He therefore urged that it would be unwise to give any arm of the government power to do the duties of the others pari passu. That is, the Legislature must not have the powers to perform the functions of either the Executive or the Judiciary; that the Executive should not be conferred with the powers to perform either the duties of the legislature or the judiciary; and finally the Judiciary should not have any power to perform the duty of either the legislature or the Executive since they might use their powers to exempt themselves from the law they had made for their fellows:

It was however Montesquieu the pre-revolutionary philosopher who contributed immensely to the development of this doctrine and he did a lot to refine it so as to ensure justice and fairness in the running of the government.

In his treatise titled l’Esprit des Lois Chapter IX he said:

“Political liberty is to be found only when there is no abuse of powers, but constant experience shows  us that every man invested with powers, is liable to abuse it and to carry his authority as far as it will go……To prevent this abuse, it is necessary from the nature of things that one power should be a check on another…. when the legislative and executive powers are united in the same person or body – there can be no liberty – Again, there is no liberty if the judicial power is not separated from the legislature and executive – There would be an end to every thing if the same person or body, whether of the nobles or of the people, were to exercise all these powers.”

Montesquieu obviously based his ideas on the British Constitution of  the first part of 18th century as he understood it then, and as explained by Garner the doctrine tried to explain three main issues viz:

• that if the executive and legislature are the same person or body of persons, there must be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends
• that for laws to be enforced by the same body that enacts them will result in arbitrary rule and make the judge a legislature rather than an interpreter of the law; and
• that if then one body or person could exercise both executive and judicial powers in the same matter, there would be arbitrary power which would amount o complete tyranny.

The doctrine then explains that it will be foolhardy to give law makers the power of executing the law because in the process they might exempt themselves from obedience and suit the law (both in making and executing it) to their individual interests.

Please, note as reported by many eminent writers that Montesquieu did not mean that legislature and executive ought to have no influence or control over the acts of each other, but only that neither should exercise the whole or part of another’s powers.

Put in brief, the meaning of the words “separation of powers” may mean three different things:

• That the same person should not form part of more than one of the three organs of government, e.g. that ministers should not sit in parliament;
• That one organ of government should not control or interfere with the exercise of its functions by another organ, e.g. that the judiciary should be responsible to parliament; and
• That one organ of government should not exercise the function of another e.g. that the ministers should not have legislative powers.

This  was  the  case  in  Lakanmi  Vs.  Attorney-General  Western  State where the supreme court ruled “that Decree No. 45 of 1968 was ultra vires since it was nothing short of a legislative judgement, an  exercise of judicial power”.

The Court held that the doctrine of separation of powers exists in  Nigeria and it cannot be thus whittled down. The Supreme Court held thus:

“We must here revert again to the separation of powers, which the learned Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution”.

“In the distribution of powers, the courts are vested with the exclusive right to determine justifiable controversies between citizens  and between citizens and the state”. See Attorney-General for Australia V. Queen. In Lovel Vs. United States Mr. Justice Black said as follows:

“Those who wrote our Constitution well knew the danger inherent in special legislative acts which takeaway the life, liberty or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people  of  this  country  from punishment without trial by duly constituted courts”.

“These principles are so fundamental and must be recognised. It is to define the powers of the legislature that constitutions are written and the purpose is that such powers that are left with the legislature be limited; and that the remainder be vested in the courts”.

However this decision has been overruled by Decree No. 28. The Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 makes it clear that a Decree is the supreme law of the land during the military rule.

Thus generally legislative usurpation of judicial powers has been declared to be ultra vires as it was decided in the case of Liyanage Vs. The Queen when Lord Pearce said:

“In so far as any Act passed without recourse to section 29 (4) of the constitution purports to usurp or infringe the judicial powers, it is ultra vires – it goes without saying that the legislator must legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence”.

But the Acts of 1962 had no such general intention. They were clearly aimed at particularly known individuals who had been named.

Thus it was pointed out that the doctrine of separation of powers exists under the Ceylonese Constitution.

It would therefore be unconstitutional for the legislature, through the Act of Parliament, to interfere with judicial functions.

Similar views were expressed in the case of Calder Vs. Bull where what happened was held to be a legislative judgement.

CONCLUSION

You ha learned about the relationship between a constitution and the people. You have learned the way in which people should be involved in the process of enforcing the constitution and the supremacy of the powers of the courts in adjudicating on constitutional issues.

SUMMARY

In this unit, you have learnt that there are many constitutional concepts, the inherent powers of the Federal Republic of Nigeria and the source of its authority.

TUTOR-MARKED ASSIGNMENT

1. Explain the term ‘doctrine of ripeness’.
2. What do you understand by judicial powers?
3. Explain the term ‘Ministerial Responsibility’.

REFERENCES/FURTHER READINGS

Lakanmi and Another Vs. A. G. (Western State) and Another, Lakanm

A. G. Western State (1971) 1 UILR 201.

Anisminic Ltd. Vs. The Foreign Compensation Commission and Another (1969) 1 ALL N.L.R. 208.

Onabamiro Vs. Chief Bola Ige & Another. Suit No. 1/383/80 reported by A.T. Oyewo in the Concept and Application of Natural Justice in Nigeria 1997. 

Nigerian Ports Authority Vs. Panalpina Wood Transport Nigeria Ltd. and Another (1973) 5 S.C. 77.

Agbaje V. C.O.P. CAW/81/69. (1971) 1 UILR 201.

Olayori and Others: In Re: Oloto Vs. Attorney-General M/196/69.

Onyuike Vs. Eastern States Interim Assets and Liabilities Agency (1974) 1 ALL N.LR. (Pt. 2) 151.

Bronik Motors Ltd. and Another Vs. Wema Bank (1983) 1 SCNLR 296. Military Governor of Ondo State Vs. Adewumi (1988) NWLR (Pt. 82)

280.

Chief Adebiyi Adejumo V. H.E. Col. Mobolaji Johnson (1972) 3 S.C.

45.

Sunday Eguamwense V. James Animashaun (1994) 1 K.L.R. 1. Akintemi & 2 others Vs. Professor C.A. Onwumechili (1985) Volume 1

Part 1 ALL N.L.R. 85.

Thorne V. University of London (1996) 2 QB 237.

129. V. Dun Sheat, Ex-Parte Meredith (1951) 1 KB 129.

University of Lagos & 2 Others V. Dr. Dada 1 Unife Law Report Part III (1971) 341.

Falomo V. Lagos State Public Service Commission (1977) 5 S.C. 51 at page 76 – 77.

Shafiu V. Kaduna Native Authority (1969) NNLR 25 at 26. Kaduna L.A. Vs. Makudawa (1971) 1 NNLR 100 at 105.

Kusada Vs. Sokoto Native Authority (1968) 1 ALL NLR 377 at 381. Animotu A. Yesufu Vs. Ibadan City Council and Another (1963)

WNLR 74 at 96.

Alexander D. Yaskey V. The President Councillors and Citizen of Freetown 1 WACA, 141.

Aiyemobuwa II Ondo Western District (1960) WML 141.

Dramani Ngelega V. Nongowa Tribal Authority 14 WACA 325.

Section 5 of the 1979 Federal Republic Constitution of Nigeria. See Ellen Street Estate V. The Minister of Health (1934) 1 K.B. 590.

Vauxhall Estate V. Liverpool Corporation.

Senator Chief T.A. Doherty Vs. Sir A.T. Balewa (1961) ALL NLR 604. Briberty Commissioner Vs. Banasinghe (1964) 2 NLR. 1301 (1964) 2

All E.R. 785.

Aihe, D.O. and P.A. Oluyede, Cases and Materials on Constitutional Law in Nigeria – Oxford University Press.

Life of Joseph Chamberlain, IV P. 118 adapted from Ivor Jennings, Cabinet Government, 3^rd Edition, P. 277 in Aihe & Oluyede, P. 22.

O.H. Philips, Constitutional Law, 2^nd Edition, P. 260.

Garner – Administrative Law.

Locke, Second Treatise of Civil Government Chapter 12 – 13. Sir Ivor Jennings; The Law and the Constitution, 5^th Edition at 1.

Sir Carleton Allen – Law and Order Chapter 1 Finkelman, J. – Separation of Powers; 1 Toronto Law Journal 313.

 

Lakanmi V. A.G. Western State (1971) 1 UILR 201. Liyannage V. The Queen (1967) A. C. 259 at page 289. Calder Vs. Bull (1798) 3 Dallas 386.