Nigeria's Case Laws on Emergency Rule


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Nigeria's Case Laws on Emergency Rule




Gbolahan Gbadamosi,
Asst. Judicial Editor (Guardian)


culled from GUARDIAN, May 19, 2004

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

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

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

Here Williams commenced proceedings in the Federal
Supreme Court seeking generally a declaration that the
Emergency Powers Act 1962 or alternative section 3 (1)
thereof is unconstitutional and void;

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
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
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;

there is nothing in the Constitution which requires
that every bit
of legislation made after Independence had to be made
by the legislature itself.

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

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

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

if the legislature itself overstepped the bounds of
its own authority, or if it did not fulfil certain
conditions which were indispensable to give effect to
its own legislation, then insofar as its own
legislation was ineffective, the subsidiary
legislation would be equally without effect;

as Act of Parliament may be in part valid under one
section of the Constitution, and valid in its other
parts under another section, and it is immaterial
under which section of the Constitution it is valid;

restriction of movement, in the circumstances which
have given rise to the declaration of emergency now in
force by resolution of Parliament, cannot with
propriety be said to come under item of "Defence".

the words "reasonably justified in a democratic
society" envisaged in Section 24 of the Constitution
meant that the freedom was ordered freedom, and must
be read in the context of the constitution and more
particularly in the context of Chapter III in which
they occur;

the chapter of the Constitution which confers certain
fundamental rights can only be invaded, if at all only
to the extent that it is essential for the sake of
some recognised public interest and not any farther;

there is nothing either in the evidence of the
Plaintiff or that of the Defence from which it can be
inferred that it was reasonably justifiable to
restrict the Plaintiff's freedom or residence and
It is pertinent to state that Williams appeared for
himself in all the three cases.



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