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Guardian
Nigeria's case laws on emergency rule
By Gbolahan Gbadamosi,
Asst. Judicial Editor
IT is not for nothing that the appelation 'Timi
The Law' given to Chief Frederick Rotimi Alade Williams (SAN) was made. If he is not in court advocating for a
litigant, he will be advancing the course of law through his own case.
Hence, the legal challenge he put up against the Sole Administrator of the defunct Western
Region, Dr. Moses Majekodunmi when a Restriction Order was issued against him pursuant to the Emergency Powers
(Restriction Orders) Regulations 1962.
To date, it is the locus classical of emergency rule in Nigeria.
The Supreme Court of Nigeria Law Report (SCNLR) has three reports. In the case No. 1, the
Court held that despite a restriction order, it can in appropriate cases restrain the appropriate authority from
giving effect to the restriction order. In the No. 2 case, the court held that it was within the bounds of parliament
and not for the court to decide that a state of public emergency exists in Nigeria while in No. 3, it was decided
that restriction of movement in the circumstances which gave rise to the declaration of emergency now in force
by resolution of parliament cannot with propriety said to came under the item defence.
The first is cited as "In The Matter of the Emergency Powers
(Jurisdiction Act 1962 and In The Matter of an Intended Action: F.R.A. Williams V. Dr. M.A. Majekodunmi (No.1)
(1962) 2 SCNLR P.26.
The facts of the case are: The plaintiff/applicant (Williams), was a legal practitioner
and a prominent member of the Action Group and its Legal Adviser. Following a rift in the Action Group, the then
Premier, Chief S.L.A. Akintola, was removed by the Government of Western Nigeria and Chief Dauda Adegbenro was
installed as Premier instead. When the Western House of Assembly convened to pass a vote of confidence on Chief
Adegbenro's government, Chief Akintola's supporters in the House created an uproar which resulted in the dispersal
of members by the police using tear gas.
The Federal Parliament, because of the two personalities claiming to be Premier, in exercise
of its powers under the Constitution of 1960, declared a State of Emergency in Western Nigeria and approved Regulation
whereby the defendant (Majekodunmi) was appointed and empowered to administer the region as Administrator for the
region. Inclusive of his powers was the right to serve orders restricting individuals' movement to an area defined
in the Restriction Order.
In exercising of his powers, Majekodunmi caused a Restriction Order to be served on Williams
and required that Williams, shall be and remain within a distance of three miles from 193, Abeokuta Road, in the
township of Abeokuta. It was dated the May 29 1962 and signed by Majekodunmi.
In the No 1 case decided on June 1, 1962, presided and read by Sir Lionel Brett F.J.,
the issue for determination was: "Whether in this case, the defendant's change of his decision in withdrawing
plaintiff's right to appear for himself in court is based on the needs for public order."
It was held that "the defendant shall be and he hereby is restrained from giving
effect or causing effect to be given to the restriction order dated the 29th May, 1962, and served on the plaintiff
under the Emergency Powers (Restriction Orders) Regulations, 1962, so far as the said order would restrict the
plaintiff from leaving the prescribed area at or after 6.00 a.m. on the 4th June, 1962, and travelling thence by
the normal route to the Federal Supreme Court, Lagos, and there arguing the motion filed by him and set down for
hearing on that day;
And that after arguing the said motion the plaintiff shall return without delay by the
normal route to the prescribe area unless the Court shall otherwise direct;
And that if the defendant grants the plaintiff a permit under regulation 2 of the Emergency
Powers (Restriction Order) Regulations, 1962, to enable him to attend this Court and argue the said motion this
order shall be of no effect.
Justices John Idowu Conrad Taylor and Sir Vahe Bairamuan concurred.
In case No. 2 decided on June 7, 1962 by the panel of Chief Justice Sir Adetokunbo Ademola,
Sir Brett, and Bairamian, the issue was: "Is the restriction of the movement of the applicant under the Emergency
Regulations one that is justifiable in a democratic society
- the Emergency Powers (Restriction Orders) Regulation 1962 are unconstitutional and void
to the extent that they authorised the defendant to serve Restriction Orders upon the plaintiff; and
- that the Restriction Orders served upon the plaintiff is unconstitutional. He also sought
an injunction restraining the defendant from giving effect to the Order.
For the defendant, Attorney-General of the Federal, Dr. Taslim Elias (QC) contended that
parliament acted in exercise of its powers under section 64 and 65 of the Constitution and that it could make laws
in respect of matters not in the Legislative Lists.
The Court's unanimous opinion was delivered by Sir Ademola who held that:
- it is within the bounds of Parliament, and not for the Court to decide that a state of
public emergency exists in Nigeria;
- once a state of emergency is declared, it is the duty of government to look after peace
and security of the state and it will require a very strong case against it for the Court to act;
- in view of Section 26(2) of the 1960 Constitution which provides that nothing in the
section shall invalidate any law that is reasonably justifiable in a democratic society restricting the movement
or residence of any person within Nigeria in the interest of defence, public safety, public order, public morality
or public health, Parliament can legislate in appropriate cases and not only in case of war for the restriction
of movements of individuals;
- much as serious consequence will result to the Applicant by the restriction order, the
Court in this case has no jurisdiction in the matter;
- in this case, a prima facie
case has not been sufficiently made out that the Emergency Powers Act or the Regulation made thereunder are invalid
in their entirety; and
This is not a case in which the Court can grant the application for an injunction to restrain
the Defendant from giving effect to the restriction order served upon the Applicant restraining his movement.
Case No.3 listed as F.S.C. 166/1962, delivered on July 7, 1962, had the same panel as
Case No. 2 where two issues were formulated for determination as follows:
- whether the delegation by the parliament to the Governor-General in-Council of the exercise
of emergency powers is constitutional and constitutes as abdication of her powers; and
- whether the restriction order served on the plaintiff is necessary for the maintenance
of public peace and order.
This time, the court per Justice Bairamian declared the Restriction Order ultra vires.
Specifically the court held that:
- section 65(1) of the 1960 Constitution empowers parliament to make necessary laws at
any time whether there is an emergency or not;
- under the Emergency Power (Jurisdiction) Act 1962, the Federal Supreme Court has exclusive
original jurisdiction to determine questions arising with regard to the validity of emergency legislation or of
anything done in purported pursuance of such legislation.
- there is nothing in Section 65 of the Constitution to differentiate between war and the
other two periods of emergency stated in sub-section (3) and what can be done to meet the emergency of war can
be done to meet any other emergency, insofar as may be necessary or expedient;
- it is not unconstitutional for parliament in the Emergency Powers Act 1961, to grant
authority to the Governor-General-in-Council to make regulations and therein to empower another person to make
rules and orders provided of course that the matter is within Parliament's legislative power and its own law has
effect in that matter;
- a subordinate legislator must confine himself within the ambit of the authority conferred
on him by the legislature;
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