THE MILITARY GOVERNOR OF LAGOS STATE V OJUKWU AND ANOR.
Suit No: SC.241/1985
Before Their Lordships
ANDREWS OTUTU OBASEKI Justice of the Supreme Court
KAYODE ESO Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS Justice of the Supreme Court
SAIDU KAWU Justice of the Supreme Court
CHUKWUDIFU AKUNNE OPUTA Justice of the Supreme Court
The facts of the case are as follows.
On October 10th 1985, Emeka Ojukwu (respondent) made an ex-parte application at the High Court of Lagos state before Omotosho J, he sought an injunction restraining the Military Governor of Lagos state, the Commissioner of Police Lagos state and The Attorney General of Lagos state from ejecting him (Ojukwu) and his family members from No 29 Queens Drive Ikoyi, to which he referred to in his application to the Court as his house.
The interim order which Ojukwu sought from the court was only meant to operate for a specific time pending when the issues before the court would be determined. Ojukwu affixed an affidavit in which he swore before the High Court that the house belonged to his father after whose death he inherited the house.
He further deposed on oath that during the civil war which lasted from 1967-1970 where he led the Biafran army against Nigeria, the house was unoccupied all through the war and although the war ended in 1970 he only came back to Nigeria from exile in 1982 after he had been granted full pardon by the Federal Government of Nigeria. Ojukwu moved back to the house after having paid the sum of ninety thousand naira to the Lagos state government for "expenses incurred by the said government in keeping the house", and also that all members of his family had been residing in the house before the case at hand was instituted before the court.
The trial Judge granted the interim order for injunction on the grounds of his ownership of the house and the looming fears of the government evicting him. The matter then moved to one of notice to the Lagos state government, Ojukwu would then change his words. He now said that the property belonged to Ojukwu Transport Company which was owned by his late father and that the ninety thousand naira was paid to agents who were in charge of the property for the purpose of securing a lease of the property.
The trial judge refused equitable relief of injunction against the Lagos state government on the ground that the property is an abandoned property and that Ojukwu failed to sufficiently prove that he had a legal right to or interest in the said property. In conclusion the learned Trial judge asserted that Ojukwu himself had not come to equity with clean hands.
After this case was decided at the trial court and judgment given an application was made by Ojukwu Transport Company as an interested party in the case asking for leave to appeal against the judgment of the high court and also an application by Ojukwu that he be reinstated at his residence No 29 queens Drive Ikoyi. The court paid attention to the prayer of the appellant and particularly frowned at the fact that the Lagos state government evicted Ojukwu from his residence despite the fact that his application was pending before the Court of Appeal, this action the state government termed "self-help", the court came to the conclusion that the right to self-help ended when the issues came before the court, the court then ordered that Ojukwu be reinstated into the property.
It is noteworthy however to point out that the Lagos state government refused to comply with the order of the court of appeal The order was made on 13th November 1985 and was in the following terms -
(ii) "Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant an order of mandatory injunction restoring the applicant in his residence at No. 29, Queen's Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents, and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen's Drive, Ikoyi, Lagos."
Rather than comply with the order of the court the Lagos state government appealed on November 22nd to the Supreme Court on the ground that "the remedy of interlocutory injunction is not available for an act which has been carried out and concluded"
Basically what this argument meant was that the act which the interlocutory injunction was sought against had been carried out already by the Government when it made ordered about one hundred and fifty men in arms to evict the appellant, or Or to put 'it in more legal form, carried out as a way to forestall the decision of the Court of Appeal against which an appeal is now being lodged to this Court (Supreme Court) The Lagos state Government then applied to the court of Appeal seeking an order pursuant to section 18 of the court of appeal Act for a Stay of execution of the mandatory injunction granted to Ojukwu.
Kolawole J.C.A. delivering the ruling of the Court of Appeal said inter alia -
"If the appeal of the State Government is successful the respondent can be ejected by due process of law. In this regard Chief Williams has shown magnanimity by offering an undertaking in damages by way of rental income if the State Government is successful in its appeal.
In that regard no stay would be granted. Learned Attorney-General contended before us that as Chief Ojukwu is a trespasser at 29 Queen's Drive Ikoyi, the State Government is not prepared to accept any undertaking in damages in the form of rental income from him."…..
Having regard to the status of irremovability acquired by Ojukwu after the judgment of this Court, it follows that the Lagos State Government is not entitled to a stay of execution because it never made out any special circumstances upon which to grant the stay. (See Keaves v. Dean (1924) 1 K.B. 685 at 686). The prayer for stay of execution is therefore refused and the application is dismissed."
In the same Court, Ademola J.C.A. in a concurring ruling, said- "This Court in an earlier ruling had taken the view that it was wrong to eject the respondent by force under the doctrine of self-help.
The Lagos State Government still failed to comply with the order of the Court of Appeal. And I think it is this dreadful situation that prompted Chief F.R.A. Williams S.A.N. learned counsel for Ojukwu to file his notice of preliminary objection dated 11th December. I have already set out this notice earlier on in this Ruling. We heard the two applications together.
Mr. Adelosoye the learned Solicitor General for the Lagos State pleaded for a restoration of the status quo ante the judgment of the High Court. He said Ojukwu had been in occupation for 10 months before the Lagos State Government got to know of his occupation.
Chief Williams for his part emphasized the deliberate disobedience of the order of the Court of Appeal by the Lagos State Government and that that Government was in contempt of the Court of Appeal.
I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower court.
It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive. Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislative (while it lasts) and the Judiciary are equal partners in the running of a successful government.
The powers granted by the Constitution to these organs by s.4 (Legislative powers) s.5 (executive powers) and s.6 (judicial powers) are classified under an omnibus umbrella known under Part 11 to the Constitution as "Powers of the Federal Republic of Nigeria".
The organs wield those powers and one must never exist in sabotage of the other or else there is chaos. Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the Constitution.
When the Executive is the Military Government which blends both the Executive and the Legislative together and which permits the Judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.
By virtue of the Constitution (Suspension Modification) Decree 1984 No. 1 a good number of the provisions of the Constitution were suspended. Indeed, what was left was what had been permitted by the Federal Military Government to exist.
All the provisions relating to the Judiciary were saved. Section 6 of the Constitution, the most important provision, in so far as the institution known as the Judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant. The Military Government had the power and still has to put an end to the existence of that provision, It has not done so, and that must have been advisedly for it does intend that the rule of law should pervade.
That being the case, it behoves of every organ of the Military Government to make it clear at all times, albeit as the presumption is always that of rule by might of the military, to assume a perennial onus of demonstrating a rebuttal of this onus.
With the contempt of the Court of Appeal by the Applicants still subsisting, it would he inequitable for this Court to give a consideration to the application of the Applicants. Let the Lagos State Government purge itself of this serious contempt, of this apparent violation of the Constitution even as amended by Decree No. 1 of 1984 before coming to seek the favour of the Court.
Another very important matter emanating from the act of the applicants. They have no right to take the matter into their own hands once the court was seized of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force to effect an act and while under the marshal of that force, seek the court's equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be.
It is for these reasons that I dismissed the application of the applicants- The Military Governor of Lagos State, the Commissioner of Police Lagos State and the Attorney-General Lagos State on 11th December 1985 and so be it. JUSTICE KAYODE ESO J.S.C
Cogent decisions on points of law in the case by the learned Justices of the Supreme Court are affixed below:
OBASEKI J.S.C on The Doctrine of Rule of law
"The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as 'golden and straight metewand of law as opposed to the uncertain and crooked cord of discretion' More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens."
UWAIS J.S.C.:
I had the advantage of reading in advance the reasons for ruling read by my learned brother Eso, J.S.C. I entirely agree with the reasons given by him. When we dismissed this application on 16th December, 1985, I expressed my concern on the failure of the applicants to comply with the order made by the Court of Appeal that the possession of the house in dispute should be restored to the respondent. I think I should still stress that it is a matter of grave concern that the Military Government of Lagos State should be seen to disregard a lawful order issued by a court of law. If Governments treat court order with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of orders of court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively. It is for these and the fuller reasons given by my learned brother Eso, J.S.C. that I dismissed the application on 16th December, 1985 with N25.00 costs to the respondent.
