ANALYSIS OF E.O. LAKANMI & ORS v.

THE ATTORNEY-GENERAL
(WESTERN STATE OF NIGERIA) & ORS 1971) 1 U.I.L.R. 201

A. The Lakanmi Case (at the the High Court)

The application before the High Court was for an order of certiorari to remove an order
dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the Chairman of the
Tribunal of Inquiry into the assets of Public Officers of the Western State, into court, for
the purposes of being quashed. The order was made under the provisions of section 13(1)
of Edict No. 5 of 1967 (of the Western State) which ordered the plaintiffs or their agents
and other persons not to dispose of any of the properties of the plaintiffs until the Military
Governor of the Western State shall otherwise direct. The plaintiffs were not to operate
their bank accounts by means of withdrawal under the same conditions. The learned judge
of the High Court on December 21, 1967; dismissed the application, holding that the order
was not ultra vires and that Edict No. 5 of 1967 was validly made, since, according to him
the Federal Military Government Decree No. 51 of 1966 was not in operation in the
Western State of Nigeria when the Edict was made. The learned judge went further to say
that the validity or otherwise of the order made by the Chairman of Tribunal could not be
challenged since section 21 of Edict No. 5 of 1967 states that:
No defect whatsoever in 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 any proceeding, finding, order, decision or other
act whatsoever of any person, the tribunal, or the special tribunal and in particular,
no action or proceedings 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 maybe,
shall be entertained in any Court of Law.
A few days after this judgment, and indeed, on December 27, 1967, the appellants filed
their notice of appeal with nine grounds of appeal to the Western State Court of Appeal.
While this appeal was pending, the Federal Military Government promulgated three
successive Decrees, namely, Decree No. 37 of 1968 – the Investigation of Assets (Public Officers
and other Persons) Decree, Decree No. 43 of 1968 – the Investigation of Assets (Public Officers
and other Persons (Amendment) Decree 1968, and Decree No. 45 of 1968 – the Forfeiture of
Assets, etc. (Validation) Decree. Section 14(1) of Decree No. 37 of 1968 repealed both Decree No.
51 of 1966 and Edict No. 5 of 1967 as from July 29, 1968. (The repealed laws, we will remember,
are the contentious ones upon which the judge of the High Court was called upon to adjudicate).
Section 14(2) of Decree No. 37 of 1968 provided that the repeal of any enactment or law by the
Decree shall not affect any order, notice or other document made or thing whatsoever done under
the provisions of any enactment or law hereby repealed and every such order, notice.. shall
continue or have effect by virtue of the Decree. Section 14(2) (b) of Decree No. 37 of 1968, while
validating everything that had been done under or by the tribunal of inquiry set up under Edict No.
5, also ensured the continued existence of the tribunal in inquiry. Section 12 ousts the jurisdiction
of the court in challenging the validity of anything done under Decree No. 37 of 1968 or under any
enactment or other law repealed by this decree. The circumstances under which any such thing
had been done shall not be inquired into in any court of law, and accordingly, nothing in the
provisions of Chapter III (dealing with fundamental rights) of the Constitution of the Federation
shall apply in relation to any matter arising out of the Decree or out of any enactment or other law
repealed by the Decree.
The effect of section 14 of Decree No. 37 of 1968 are that, although subsection (1) repeals
Edict No. 5 of 1967, under subsection (2), the tribunal of enquiry, about which this complaint
arose, is to continue its function, and all orders already made by it are validated and are to continue
to operate. On the other hand, the effect of section 12 of Decree No. 37 of 1968 is that, despite the
provisions as to fundamental human rights in Chapter III of the Constitution, validity of orders,
notices and directions made should not be inquired into by any court of law, Decree No. 43 in its
section 1(b), however, repealed the section of Decree No.37 of 1968 ousting the jurisdiction of the
court. However, the most important decree for our purpose is Decree No. 45 of 1968 for reasons
to be shown hereunder.

B. The Lakanmi Case (at the Court of Appeal)

As a result of the effects of the provisions of Decree Nos. 37, 43 and 45 of 1968, counsel for the
Government filed, in the Western Court of Appeal, a notice of preliminary objection that the Court
had no Jurisdiction entertain the appeal on the following grounds:
1. That the proceedings in this appeal relate to a challenge of an order which has been
validated for all purposes under provisions of section 1(2) of the Forfeiture of Assets etc.
(Validation) Decree 1968, that is Decree No. 45 of 1968;
2. That the said proceedings have abated as from 28th August 1968 by virtue of section 2(2)
of the aforesaid Decree.
The Court of Appeal accepted the submissions of the learned state counsel and gave
judgment accordingly. Fatayi-Williams J.A., who delivered a separate judgment, agreed
 on (1) but did not deal with (2) above. The Court then struck out the appeal. It was from
this judgment that appellant appealed to the Supreme Court.

C. The Lakanmi Case (at the Supreme Court)

As we stated earlier, the most important and determinant factor in the judgment was whether or
not there was revolution in January 1966. If the Supreme Court had found contrary to ratio (1) as
stated above, the other ratio decidendi would have been irrelevant. If the Supreme Court had found
that what happened in January 1966 was revolution, that is, that the Federal Military Government
seized power, it would have had an unfettered right from the start to rule by force and by means
of Decrees and, therefore, nothing from the Republican Constitution of 1963 could be construed
to limit the competence of the Federal Military Government even if the Federal Military
Government had expressly preserved the whole of the Constitution or any part of it. On the other
hand, if the Supreme Court found, as indeed it did, that what happened in January 1966 was a mere
‘transfer’ of power by the Council of Ministers to the Armed forces, leading to the formation of a
constitutional interim government, which came into being by the wishes of the representatives of
the people, and whose object is to uphold the Constitution, excepting in so far as it had to derogate
from it under the ‘doctrine of necessity’, then the Federal Military Government must assume the
continued existence of the 1963 Republican Constitution.
It is in the above context that the question has arisen whether Decree No. 45 of 1968 is
valid or not. This is the substance of the appeal. Counsel on both sides rightly agreed that, to
determine the validity of this Decree, it-was necessary to determine the basis of power of Federal
Military Government to make laws
In deciding the appeal, the Supreme Court declared Decree No. 45 of 1968 invalid as
contrary to the Constitution, thereby allowing the appeal of the Appellants. For the sake of clarity,
the following can safely be perceived to be the ratio decidendi of the Supreme Court judgment:
1. The events of January 15, 1966, did not amount to revolution but a mere offer of
invitation to the Armed Forces to form an interim Military Government, making it clear
that only certain sections of the 1963 Republican Constitution were to be suspended,
and the offer was duly accepted by the Armed Forces.
2. The constitutional interim government which came into being by the wishes of the
representatives of the people, and whose object is to uphold the Constitution, could only
derogate from that Constitution if the derogation is justified under the ‘doctrine of
necessity’.
 3. That the Federal Military Government assumes the continued existence of the
Constitution and in its Decree No. 1 of 1966 impliedly provided for a separation of
powers between the Legislature, the Executive, and the Judiciary as did the Constitution;
and that this must be perpetuated unless necessity otherwise arose compelling it under
section 3 of Decree No. 1 of 1966 to make laws by Decree ‘for the peace, order and good
government of Nigeria on any matter whatsoever’.
4. That since Decree No. 45 of 1968, which sought to validate the order made by the
tribunal under Edict No. 5 of 1967 (and this implied that it was otherwise invalid), was
a legislative act which impinged upon the sphere of the judiciary (by specifically naming
the appellants and some other persons in its schedule) it was an unnecessary intrusion
into the sphere of the judiciary and it is, therefore, void.

D. Reaction of the Federal Military Government to the Supreme Court Judgment

he judgment of the court struck at the root of the military government in power, and also generated
considerable popular feelings among scholars, lawyers, jurists and human rights activists. For
instance, Prof. Itse Sagay was quoted in Jurisprudence by M.E Elegido, as saying that “there can
never be any excuse or justification for such a step, which is destructive of judicial authority,
the judicial process and the rule of law”.
The military regime, which was seriously rattled by the decision reacted tersely by
promulgating Decree No 28 of 1970, that is The Federal Military Government (Supremacy and
Enforcement of Powers) Decree 1970, which had the effect of nullifying any decision of any court
in any part of the Federation whether given before or after the passing of the Decree. Decree No
28 of 1970 declares in its Section 1(2)(b) that:
“any decision, whether made before or after the commencement of this Decree
by any court of law in exercise or [purported exercise of any powers under the
Constitution or any enactment or Law of the Federation or of any State which
has purported to declare or shall hereafter purport to declare the invalidity of
any Decree or of any Edict (in so far as the provisions of the Edict are not in
inconsistent with the provision of the 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 making thereof.”
The Federal Military Government feigned that the rationale behind the above declaration is for the
efficiency and stability of the government of the federation, and to assure the effective maintenance
of the territorial integrity of Nigeria and the peace, order and good government of the federation.
See the opening words/phrases in Section 1(2) (a) & (b) of Decree No. 28 of 1970.