CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The appellant, as plaintiff, commenced an action at the High Court of Oyo State on 9 April 1980 against the Attorney-General of the Federation, the Accountant-General of the Federation, and the Permanent Secretary, Federal Ministry of Works and Housing, claiming arrears of rent and rent for the period 1978/1979 and 1 August 1979 to 31 July 1980 in respect of his property known as Tenson House, 9/10 Ring Road, Ibadan. The property had been let to the 2nd defendant (the Accountant-General) under an agreement partly oral and partly in writing for a term of three years from 1 August 1975 to 31 July 1978, with an option for renewal.
The lease expired on 31 July 1978. The plaintiff requested the 2nd defendant to indicate his intention regarding renewal, but the option was not exercised. The defendants continued in occupation. By a letter dated 10 August 1978, the plaintiff informed the defendants that the lease had expired and that he was prepared to renew on a year-to-year basis at a rent calculated at N6.00 per square foot per annum. The defendants neglected to pay the rent due.
The trial Judge, Atinuke Ige, J., found for the plaintiff and awarded N54,100.00. The defendants appealed to the Court of Appeal. The Court of Appeal allowed the appeal, holding that the action ought to have been commenced by way of petition of right with the fiat of the Attorney-General, and that since the cause of action arose before October 1979, the 1979 Constitution did not apply. The plaintiff further appealed to the Supreme Court.
Issues for Determination
ISSUE 1: Should the plaintiff, now appellant, have commenced this action against the respondents in the High Court by serving them with Writ of Summons and not by way of Petition of Rights?
ISSUE 2: Has the High Court jurisdiction in respect of an action taken out in court after the commencement of the 1979 Constitution in view of the constitutional powers vested under Section 236 and Section 6(6)(b), or has its jurisdiction been ousted by the inhibitive provisions in the Petition of Rights Act?
Decision / Holding
The Supreme Court allowed the appeal, set aside the decision of the Court of Appeal, and restored the judgment of the trial court. The Court held that with the coming into force of the 1979 Constitution, particularly Section 6(6)(b), the Petition of Rights Act had become inconsistent with the Constitution and was void to the extent of the inconsistency. The Court further held that the determinative date was the date the action was commenced (9 April 1980), which was after the Constitution came into force, and not the date the cause of action accrued.
Ratio Decidendi / Principles
APPELLATE PRACTICE — Jurisdiction — When Objection to Jurisdiction Can Be Raised “It has long been held that the issue of jurisdiction could be raised at any stage of the proceedings and that is from trial to final appeal.” Per Eso, JSC, in Bakare v. A.G., Federation & Ors (1990) NLC-2931988(SC) at p. 10; Paras D–E.
CONSTITUTIONAL LAW — Petition of Rights — Procedure Under Sections 3 and 4 of the Petitions of Right Act “Sections 3 and 4 of the Petitions of Right Act, Cap.149 of the Laws of the Federation of Nigeria, 1958 (as amended), which is the applicable law to this case, provide – ‘3. All claims against the government of the federation or against any ministry or department thereof, being of the same nature as claims which before the commencement of the Crown Proceedings Act, 1947 of the Parliament of the United Kingdom might in England have been preferred against the Crown by petition, manifestation or plea of right may, with the consent of the Attorney General of the Federation, be preferred in a High Court having original jurisdiction in respect thereof… 4(1) The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of a Statement of Claim in the Court and the delivering of 2 copies thereof at the office of the Attorney General of the Federation…’ The combined effect of the provisions of these Sections of the Act is that before commencing the action in this case, by a Writ of Summons, the appellant should, as a first step, file his Statement of Claim in the High Court and then deliver two copies of the Statement of Claim in the office of the 1st respondent.” Per Uwais, JSC, in Bakare v. A.G., Federation & Ors (1990) NLC-2931988(SC) at pp. 20–21; Paras D–B.
CONSTITUTIONAL LAW — Retrospectivity — Date of Commencement of Action vs. Date of Accrual of Cause of Action “The crucial provisions of Section 3 of the Act read: ‘3. All claims against the government of the federation… being of the same nature as claims which before the commencement of the Crown Proceedings Act, 1947… might in England have been preferred against the Crown by petition of right may, with the consent of the Attorney-General of the Federation be preferred in a High Court…’ It is clear the section deals with preferring a claim and, in other words, filing or instituting the claim. It does not deal with the date of the accrual of the cause of action which gives rise to the claim. The claim in the case on appeal was filed on 9th April, 1980 after the Constitution had come into force and in consequence thereof the provisions of the Act had become void.” Per Bello, JSC, in Bakare v. A.G., Federation & Ors (1990) NLC-2931988(SC) at p. 18; Paras A–E.
CONSTITUTIONAL LAW — Section 6(6)(b) of the 1979 Constitution — Effect on Petition of Rights Act “Happily for the country Section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism. Subsection 6 of the section provides- (6) The judicial powers vested in accordance with the provisions of this section:- (b) shall extend 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 obligations of that person. The anachronism thus removed was that the king [meaning the State in this country] could do no wrong. It is a luxury which the country could no longer participate in after the coming into force of the 1979 Constitution.” Per Eso, JSC, in Bakare v. A.G., Federation & Ors (1990) NLC-2931988(SC) at pp. 14–15; Paras D–C.
CONSTITUTIONAL LAW — Statutory Interpretation — The Word ‘May’ in Section 3 of the Petitions of Right Act “It is true… that the word ‘may’ always means may. ‘May’ is a permissive or enabling expression but there are cases in which for various reasons, as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. Also as pointed out in Halsbury’s Laws of England 3rd Edition Volume 433 ‘the use of the word ‘may’ prima facie conveys that the authority which has the power to do such act has an option either to do it or not to do it.’ What this boils down to in respect of Petitions of Right Act is that a claimant was at liberty, if he chose, to pursue his claim by way of petition of right which was the only avenue open to him to seek redress. It does not imply that a claimant had the option to proceed by way of a petition or by means of a Writ of Summons.” Per Akpata, JSC, in Bakare v. A.G., Federation & Ors (1990) NLC-2931988(SC) at pp. 46–48; Paras E–A.
Obiter Dicta
The Court observed that the Petitions of Right Act was an anachronism in the statute book, reflecting the archaic principle that the King could do no wrong. With the coming into force of the 1979 Constitution, this luxury was removed, and the state was placed on equal footing with the citizen before the law. The Court noted that even in England, the Petition of Rights procedure had been abolished for almost all purposes by the Crown Proceedings Act, 1947.
Orders of Court
The appeal was allowed.
The judgment of the Court of Appeal dated 2 March 1987 was set aside.
The judgment of the High Court (Atinuke Ige, J.) delivered on 30 September 1982 was restored.
The award of N54,100.00 in favour of the appellant was reinstated.
Costs were assessed as follows:
- High Court: N400.00
- Court of Appeal: N400.00
- Supreme Court: N500.00
APPEARANCES
Counsel for the Appellant(s)
Olatunde Shonibare, Esq.
Counsel for the Respondent(s)
S.N.C. Harris-Eze, Director, Civil Litigation, Federal Ministry of Justice (with him, H.M.A. Njoku, State Counsel, Federal Ministry of Justice)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY KAYODE ESO J.S.C. (DELIVERING THE LEADING JUDGMENT):)
On 16th July, 1990 this Court, sitting as
a full Court, allowed the appeal of the plaintiff. Reasons
for the course taken were adjourned till today. I
hereby give my reasons.
Though Mr. Harris-Eze, Director of Civil Litigation,
appeared for the respondent in this case, and he
filed no brief for the respondent, he was permitted
to make oral submissions on behalf of the
respondent, even without a written brief.
The issue which is involved, in fact, is very narrow,
if one goes by the judgment of the Court of Appeal.
The issues before that court were two fold and they
are –
- Whether the appellant who was the plaintiff in
the trial Court could validly bring his suit in view of
the Petition of Rights Act (even in this, the issue is
duofold. For the date of commencement of the
action was brought into focus).
- If he could, whether or not the award made by
the trial Court was reasonable.
On the first issue the Court of Appeal held as per
Uche-Omo, J .C.A.-
“I would hold that the (sic) petition of rights law
4
cannot prevent the respondent (that is the plaintiff
who is now appellant in this Court), in the absence
of any other disability, from commencing an action
after October 1979 to recover rents due to him.
The learned Justice of the Court of Appeal, having
so held, asked himself a question –
“Secondly, did the cause of action arise before or
after the commencement of the constitution in
October, 1979? This is important because the
provisions of the Constitution can only apply in
respect of the latter, since its provisions do not
have retrospective effect vide F.S. Uwaifo’s case
(supra)”
He answered the question –
“Whilst Counsel for the appellant [the defendant]
has submitted that the cause of action in this case
arose between 1978 and August, 1979 when the
rents became due and payable, respondents’
Counsel’s submission in his brief is that the
important date is that on which the action was
taken. Before us, in oral argument respondent’s
Counsel has submitted that the operative date when
cause of action accrued is after the rent had been
demanded and not paid i.e. after Exh. G was
written on 23/11/79.
It seems to me that the submission of appellant’s
Counsel is the correct position of the law. The cause
of action therefore accrued before October, 1979.
The Constitution of 1979 would then be inapplicable
and the Petitions of Rights Law would apply.
It would therefore follow that the action of the
respondent not having been commenced as
5
provided by that law should not have been
entertained by the court below.”
Upon this finding the Court of Appeal allowed the
appeal of the defendant. That is, though the
Constitution of 1979 has rendered nugatory the
Petition of Rights Act, the instant case is not
protected by the constitutional provision only
because the cause of action arose before the date
of the Constitution. He dismissed the claim of the
plaintiff, which claim he said he would have found
in his favour but for this earlier finding. And it is
this part of the decision that has constituted the
main spring of the second issue which came before
the Court of Appeal.
What are the facts of the case?
On 9th April, 1980, the plaintiff, Alhaji R.B. Bakare
filed a claim against-
- The Attorney-General of the Federation;
- The Accountant-General of the Federation; and
- The Permanent Secretary, Federal Ministry of
Works and Housing.
The claim, as indorsed on the Writ of Summons, is
as follows:-
WRIT OF SUMMONS
INDORSEMENTS.
The plaintiff’s claim against the defendants is the
sum of N138,890.40k (One Hundred and
Thirty-eight Thousand, Eight Hundred and Ninety
naira, Forty Kobo) being rent in respect of plaintiff’s
property known as TENSON HOUSE, situate at 9/10
Ring Road, Ibadan, let to the defendants at Ibadan
for the period 1978/1979; 1st August, 1979 to 31st
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July, 1980.
PARTICULARS OF CLAIMS
(a) Arrears of rent for the 1978 to1979 N42,445.20
(b) Rent for the period 1st August,
1979 to 31st July, 1980 N138,890.40
ALTERNATIVELY,
The plaintiff claims the said sum of N138,890.40 as
damages for breach of the tenancy agreement.”
A Statement of Claim followed on the same day,
though it was in fact filed on the following date.
Almost all the paragraphs of the Statement of Claim
are pertinent. They are-
“STATEMENT OF CLAIM
- The plaintiff is the owner of the house known as
“TENSON HOUSE”, 9/10 Ring Road, Ibadan, within
the Ibadan Judicial Division.
- The 1st defendant is by virtue of his office the
agent of the Federal Government of Nigeria for the
purpose of all litigations.
- The 2nd defendants head of a department under
the Federal Government of Nigeria and tenant of
the plaintiff in respect of “TENSON HOUSE”, 9/10
Ring Road, Ibadan under a tenancy agreement
which is the subject of this action.
- The 3rd defendant is the chief executive in the
Federal Ministry of Works and Housing whose
Ministry is responsible for valuing premises to be
rented by any department of the Federal
Government of Nigeria, and who, acting in the
course of the executive authority of the Federal
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government valued the said “Tenson House” for the
purpose of the tenancy agreement which is the
subject of this action.
- By an agreement which was partly oral and
partly in writing made between the plaintiff and the
2nd and 3rd defendants; the 2nd defendant became
tenant to the plaintiff of premises comprising the
group, first, second, third and fourth floors of
building situate at 9/10 Ring Road, Ibadan and
known as “TENSON House” for a term of three
years in the first instance from 1st August, 1975 to
31st July, 1978.
In so far as this agreement was in writing it was
contained in a letter dated 3rd March, 1975 writing
by the plaintiff’s solicitor in a letter dated 15th
March, 1975 by the 2nd defendant and in a letter
dated 16th July, 1975 by the 3rd defendant. The
said agreement was upon the terms that the lease
would be for three years certain in the first
instance, that the rent would be at the rate of
N59,100.00 per annum, that three years rent
would be paid in advance, that the premises would
be occupied by the Ibadan Office of the department
headed by the 2nd defendant, and that the 2nd
defendant would have the option of renewal at the
end of the term of years certain.
………………….
- In accordance with the terms of the agreement,
the 2nd defendant paid the plaintiff three years
rent at the agreed rate in a lump sum and the
plaintiff let the 2nd defendant into possession on
8
1st August, 1975.
- The lease for three years certain expired on 31st
July, 1978 and in spite of numerous requests by
the plaintiff before the expiry date that the 2nd
defendant should indicate his intention with regard
to the option or renewal of the tenancy which the
plaintiff was prepared to renew at a rent of N6.00
per square foot per annum, the 2nd defendant did
not exercise the option to renew the tenancy but
continue to remain in occupation.
- By a letter dated 10th August, 1978 the
plaintiff informed the 2nd and 3rd defendants that
the lease had expired and that the option to renew
it had not been exercised. The plaintiff further
informed the 2nd and 3rd defendants that the
plaintiff had received offers from other prospective
tenants but the plaintiff was prepared to renew the
lease of the 2nd defendant on a year to year basis
at a rent to be calculated at the rate of N6.00 per
square foot per annum being N96,445.20 per
annum for a total floor space of 1,549.4 metres
occupied by the 2nd defendant.
- By the same letter pleaded in paragraph 10
above the plaintiff agreed to allow the defendant to
continue to use and occupy the said premises on
the deposit of N50,000.00 pending a valuation to
be carried out by the 3rd defendant in accordance
with the usual procedure of government.
Dated this 9th day of April, 1980″
The three defendants filed a joint Statement of
Defence. There was nothing in the Statement of
Defence which challenged the vires of the plaintiff
9
to bring the action. In other words, the issue of the
petition of rights was not raised in the pleadings at
all. The learned trial Judge Atinuke Ige, J., wrote a
well considered judgment in conclusion, the learned
Judge after a painstaking assessment of the facts
awarded the sum of N54,100.00 to the plaintiff.
The only interesting legal issue which arose before
her was the legal entity of each of the defendants.
On this, the learned trial Judge held –
“Another point raised by counsel for the defendants
on the issue of the legal entity of each of the
defendants calls for attention. It is my view that
the plaintiff has done the correct thing by suing the
Federal Attorney-General, the Accountant-General
of the Federation and the Permanent Secretary,
Federal Ministry of Works and Housing. They are
legal entities and they are all connected with the
transaction over the letting of plaintiff’s premises
known as ‘TENSON HOUSE’, Ring Road, Ibadan.”
In his appeal to the Court of Appeal [at that time
the Federal Court of Appeal], dated 21st December,
1982, Mr. Harris Eze of counsel for the
defendants/appellants filed only two grounds of
appeal and neither had anything to do with issues
which are now on appeal before this court. However
an amended notice of appeal dated 14th November,
1983 was filed.
Ground 4 of that notice reads-
- The learned trial Judge erred in law in not holding
that the procedure adopted by the plaintiff in
bringing the action was wrong in law and so
striking out the claim.
10
Particulars of Error
The action sounds in contract and ought to have
been by way of a petition of right with the fiat of
the Honourable Attorney General of the
Federation.”
His brief dated 24th October, 1988 also had as one
of the questions for determination.-
“4. Non compliance with Statutory Provisions for
making the claim under the petition of Right Act,
Cap.149 Laws of the Federation as amended by
LN.112 of 1964, accordingly the High Court lacks
jurisdiction to entertain the matter.”
And so, the issue of petitions of right was attached
to the jurisdiction of the Court of Appeal to hear
the appeal.
It has long been held that the issue of jurisdiction
could be raised at any stage of the proceedings and
that is from trial to final appeal. The plaintiff made
a non-too spirited objection in his respondent’s
brief to the introduction of this issue at that stage.
Nevertheless, he was wise to have raised the issue
of the consistency of the Petition of Rights with the
1979 Constitution at the end of his Brief.
And, as I have earlier said, the learned Justice of
the Court of Appeal in deciding that the Petition of
Rights Law (act in this case) would not apply to
cases after the 1979 Constitution held that in the
instant appeal, the cause of action accrued before
October 1979, that is, before the coming into
operation of the Constitution made that year.
The plaintiff has appealed to this Court, strangely,
on grounds of appeal which question the
11
applicability or not of the Petition of Rights Law,
whereas the Court of Appeal has decided in his
favour that the Petition of Rights Law (Act) will not
apply to cases arising after the coming into
operation of the 1979 Constitution.
In the brief of the learned counsel for the
appellant, is contained, issues for determination,
whether or not the Petition of Rights Law is
applicable, but only one of the issues dealt with
date of the actual cause of action, and even then,
the issue (issue iii) could not be said to have been
that explicitly put, it reads –
“Has the High Court jurisdiction in respect of an
action taken out in Court, after the commencement
of the 1979 Constitution in view of the said
Constitutional powers vested under S .236 and
S.6(6)(b) or has got its jurisdiction ousted by the
inhibitive provisions in the Petition of Rights (sic)
Law or Act.”
The oral submissions of learned Counsel were also
to this effect. Learned Counsel spent so much time
on the effect of S. 274(1), S. 274(2), S.6(6)(b) and
- 33 of the Constitution .
I have decided to dwell quite substantially on the
Petition of Rights Act having regard to the stand
taken by learned Counsel and also for the reasons
given for its decision by the Court of Appeal.
I have already said that Mr. Harris Eze filed no
written brief but he was permitted to address us
orally. He maintained that the cause of action arose
in this case before 1979 as the agreement involved
in the case was made between 1st August, 1978
12
and 31st July, 1979. Mr. Harris Eze was in effect
conceding that the Constitution of the Federal
Republic of Nigeria 1979 had in effect removed the
effect of the Petition of Right Act. He agreed that
the action herein was commenced on 9th April,
1980 but that the date of the cause of action was
the material date.
In B1. Comm.256 it had long been recognised that
a petition of right is the process by which property
of any kind (including money or damages) could be
recovered from the Crown. In Thames Ironworks
and Ship Building Co. v. R. [1869] 10B & S 33 it
was held that among many money claims for
payment which a petition of right is available are
specified claims for liquidated sums due under
contract. And such is the claim in this case, which
was for rent in respect of plaintiff’s property.
What is the short history behind the Petition of
Rights Act in this country? It had its source in
English Legal History. In 1628, the Commons [in
England] had embodied their demands in what is
known as the petition of rights. This petition
contained a long list of grievances. In 1700 Holt,
C.J. and his fellow Justices held in the Banker’s case
14 S.T.I (1700) that a petition of right lay against
the Crown for damages on breach of contract. [The
instant case of failure to pay agreed rent is a case
of breach of contract]. The decision in the Banker’s
case (supra) had thus anticipated the decision of
Lord Mansfield, C.J., that great English Judge, five
years later, in the Summersets’
case Smith v. Brown (1705) 2 Salk 666 that one
13
could not be a slave on English soil. The latter case
is of course a case in Habeas Corpus.
On the 1st December, 1915, the Petition of Rights
Ordinance (a colonial legislation of course and so
understandable) was passed into law Ss. 3 & 4
provided –
- “All claims against the government, or against
any governmental department, being of the same
nature as claims which may be preferred against
the Crown in England by petition, manifestation or
plea of right, may, with the consent of the
Governor-General be preferred in a superior Court
having original jurisdiction in respect thereof in a
suit instituted by the claimant as plaintiff against
the Attorney-General of the Federation as
defendant, or such other officer as the Governor-
General may from time to time designate for that
purpose.
- The claimant shall not issue a Writ of Summons,
but the suit shall be commenced by the filing of a
Statement of Claim in the court and the delivering
of a copy thereof at the office of the Attorney-
General of the Federation or other officer
designated as aforesaid…”
Mr. Harris Eze is in agreement that with the coming
into force of the Constitution of the Federation
1979, S .6(6)(b) thereof renders nugatory the
provision of the petition of rights afore referred to.
That provision was reflected upon in Chief (Mrs.)
Olufunmilayo Ransome Kuti v. Attorney General of
the Federation and Ors [1985] 6 S.C.246 (1985) 2
NWLR (Pt.6) 211 in relation to petitions of right. In
14
that case, I said and I still maintain-
” Happily for the country….. Section 6 of the 1979
Constitution which vests the judicial powers of the
country in the court has to my mind removed this
anachronism.
Subsection 6 of the section provides-
(6) The judicial powers vested in accordance with
the provisions of this section:-
(b) shall extend 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 obligations of
that person.”
The anachronism thus removed was that the king
[meaning the state in this country] could do no
wrong. It is a luxury which the country could no
longer participate in after the coming into force of
the 1979 Constitution. It is a prerogative, which as
I said in the Kuti case Bacon described as –
“a garland of prerogatives woven around the
pleadings and proceedings of the King’s suits.”
which of course was preserved in our laws by virtue
of the Interpretation Act (Cap.89) Laws of the
Federation of Nigeria and Lagos 1958 (Cap.89)
S.45(1) a legislation which came into force on 9th
November, 1939 as No.27 of 1939. The section
providing –
“Subject to the provisions of this section and except
in so far as other provision is made by any federal
law , the common law of England and the doctrine
of equity, together with the Statutes of General
15
Applications that were in force in England on the
first day January, 1900, shall be in force in Lagos
and, in so far as they relate to any matter within
the exclusive legislative competence of the Federal
Legislature, shall be in force elsewhere in the
federation.”
Now, the real, probably the only question that
bothered the Court of Appeal was whether the
cause of action arose before or after the date of
commencement of the 1979 Constitution. I think
this issue of “cause of action” weighed so much on
the court because of the submission of Mr. Harris
Eze in his brief who imported the case of F.S.
Uwaifo v. Attorney General of Bendel State (1982)
7 S.C.124 to the effect that the provisions of the
1979 Constitution are not applicable to any cause of
action which accrued before the Constitution.
The problem of the Court of Appeal, I believe is
predicated on the decision of this Court which I
believe is still valid, stated in the Uwaifo case as
per Idigbe, J.S.C. that-
“Clearly, by virtue of Sections 6(6)(a), 6(6)(b) and
4(8) of the Constitution aforesaid, the Courts have
jurisdiction to determine issues or questions as to
whether any law, including those unrepealed laws
which were made between 15th January, 1966 and
1st October, 1979 (or the provisions thereof) is
consistent with the provisions of 1979 Constitution
for the purpose of giving effect to it under the
existing Constitution and for this purpose, but to
the extent only, the Courts can declare such a law
or portions thereof invalid…”
16
Applying to this case this dictum, valid as it was in
that case, the Court of Appeal then excluded this
case from the application of the Constitution as
earlier decided by it on the ground that the cause
of action arose before the date of operation of the
Constitution.
But no where did the Petition of Rights act talk
about date of cause of action. The Petition of Right
Act itself does not create a cause of action. It only
provides for the procedure to be followed when the
events raised by the act occur. It is adjectival not
substantive in the sense of forming its own head of
action. When this was brought to the notice of Mr.
Harris Eze he quickly saw the point and confessed
that it never occurred to him. That is the reaction
of a good lawyer.
In the reason therefore, we have to examine the
date of the commencement of the action. The case
came to life, for the first time, on 9th April, 1980,
well after the 1979 Constitution has rendered
ineffective the Petition of Right Act. It is caught,
very firmly too, by the 1979 Constitution. The
Petition of Rights Act has no force over it.
For these reasons, I allowed the appeal of the
plaintiff on 16th July, 1990. The award made by
the learned trial Judge, Atinuke Ige, J. on 30th
September, 1982, for N54,100.00, and which
award was set aside by the Court of Appeal on 2nd
March, 1987, is hereby reinstated. Incidentally, the
Court of Appeal had, and commendably too,
determined this amount to be correct, that is,
calculated and decided upon by the learned trial
17
Judge. The Court of Appeal acted in the event of
the Court being wrong in the determination in the
law. And the Court is wrong. Costs awarded by the
Court of Appeal were set aside.
Plaintiff was awarded the sum of N54,100.00
Costs were assessed as follows:-
In the High Court – N400.00
In the Court of Appeal – N400.00
In this Court – N500.00
Concurring Opinion(s)
— MOHAMMED BELLO, J.S.C.:
I have read the
reasons for judgment written by my learned brother,
Eso, J.S.C. I am in complete agreement with him. The
plaintiff who is the appellant in this appeal
instituted the suit on 9th April, 1980, in the High
Court without complying with the provisions of the
Petitions of Right Act. Upon the interpretation of
Section 6(6)(b) of the 1979 Constitution, which
came into force on 1st October, 1979, the
provisions of the Act appear to be inconsistent with
the provisions of the section and, consequently, the
act became null and void by virtue of Section 1(3)
of the Constitution. The Court of Appeal held that
since the cause of action had accrued before the
Constitution came into force, the provisions of the
Act applied and the trial court erred in law in
entertaining the suit since the plaintiff had not
complied with the procedure prescribed by the Act.
I agree with my brother, Eso, J.S.C., that the Court
of Appeal erred in law in thinking that the date of
the accrual of the cause of action was the
determinant factor in the application of the Act. The
18
crucial provisions of Section 3 of the Act read:
“3. All claims against the government of the
federation ……………. being of the same nature as
claims which before the commencement of the
Crown Proceedings Act, 1947…. might in England
have been preferred against the Crown by petition
of right may, with the consent of the Attorney-
General of the Federation be preferred in a High
Court having original jurisdiction thereof…..”
It is clear the section deals with preferring a claim
and, in other words, filing or instituting the claim.
It does not deal with the date of the accrual of the
cause of action which gives rise to the claim.
As shown earlier, the claim in the case on appeal
was filed on 9th April, 1980 after the Constitution
had come into force and in consequence thereof the
provisions of the Act had become void. The plaintiff
was therefore entitled, as he did, to file his claim
without complying with the procedure laid down by
the Act.
Accordingly, we allowed the appeal, set aside the
decision of the Court of Appeal and restored the
judgment of the High Court with costs in favour of
the plaintiff/appellant.
— MUHAMMADU LAWAL UWAIS, J.S.C.:
I
have had the opportunity of reading in draft the
reasons for judgment read by my learned brother,
Eso, J.S.C. I am in complete agreement with him as
it was for the same reasons that I allowed the appeal
on the 16th day of July, 1990. However, I wish to add
the following by way of emphasis only.
19
The facts of the case have been fully stated in the
aforesaid judgment. It is, therefore, not necessary
for me to repeat them here save to say that the
action brought in the High Court of Oyo State by
the appellant against the respondents was founded
on an informal tenancy agreement and the cause of
action pertained to that contract.
Sections 3 and 4 of the Petitions of Right Act,
Cap.149 of the Laws of the Federation of Nigeria,
1958 (as amended), which is the applicable law to
this case, provide –
“3. All claims against the government of the
federation or against any ministry or department
thereof, being of the same nature as claims which
before the commencement of the Crown
Proceedings Act, 1947 of the Parliament of the
United Kingdom might in England have been
preferred against the Crown by petition,
manifestation or plea of right may, with the
consent of the Attorney General of the Federation,
be preferred in a High Court having original
jurisdiction in respect thereof or if the Supreme
Court has such jurisdiction, in that Court, in a suit
instituted by the claimant as plaintiff against such
person as the said Attorney General may
designate, as defendant, for the purpose.
- (1) The claimant shall not issue a writ of
summons, but the suit shall be commenced by the
filing of a Statement of Claim in the Court and the
delivering of 2 copies thereof at the office of the
Attorney General of the Federation and no fee shall
be payable on filing or delivering such statement.
20
(2) The decision of the Attorney-General of the
Federation shall be conclusive and, if he gives his
consent, one copy of the Statement of Claim with
his fiat endorsed shall be returned to the Court
having original jurisdiction; and the claim shall be
prosecuted in that Court.”
The combined effect of the provisions of these
Sections of the Act is that before commencing the
action in this case, by a Writ of Summons, the
appellant should, as a first step, file his Statement
of Claim in the High Court and then deliver two
copies of the Statement of Claim in the office of the
1st respondent. The 1st respondent would have
studied the Statement of Claim and then would have
taken one of two actions. That is either to give his
consent for the appellant to commence the action,
by his endorsing one of the copies of the Statement
of Claim or refusing his consent, in which case the
appellant could not have taken out a Writ of
Summons against the respondents. However,
neither of these happened in the instant case
because the appellant, as plaintiff, did not follow
the procedure under the Petitions of Right Act,
Cap.149.
This is a substantial point of law, even though
pertaining to procedure in instituting action in
Court. The respondents ought to have raised the
point in their Statement of Defence, as a special
defence, but they did not. Order 23 Rule 2 of the
High Court (Civil Procedure) Rules, Cap.46 of the
Laws of Oyo State of Nigeria, 1978 provides-
“2. Any party shall be entitled to raise by his
21
pleading any point of law, and any points so raised
shall be disposed of by the Judge who tries the case
at or after the trial
Provided that by consent of the parties, or by order
of the Court or a Judge on the application of either
the same may be set down for hearing and disposed
of at any time before the trial.”
The point was only adverted to before the learned
trial Judge (Ige J.) in the course of summing up
address by Counsel for the respondents; and
Counsel for the appellant at the trial replied on the
point. However, the learned trial Judge omitted to
address the arguments in her considered judgment.
It was on appeal, by the respondents, to the Court
of Appeal that the point was considered.
The Court of Appeal (per Uche Omo, J.C.A. with
Omololu-Thomas and Gambari, JJ.C.A. agreeing)
rightly held-
“The Petitions of Right Law (sic act) by Virtue of
Section 274 (1) of the Constitution would be an
“existing law” which remains part of the law of the
land. To the extent however that it purports to
prevent an aggrieved party from taking direct
action in court, it seems to me that it must be
adjudged inconsistent with the provisions of the
constitution and to that effect void.”
It went on-
“Whilst Counsel for the appellant has submitted that
the cause of action in this case arose between 1978
and August, 1979 when the rents became due and
payable, respondents’ Counsel’s submission in his
brief is that the important date is that on which the
22
action was taken. Before us in oral argument
respondent’s Counsel has submitted that the
operative date when cause of action accrued is
after the rent had been demanded and not paid i.e.
after Exhibit G was written on 23/11/79.”
before holding further, and I think, with respect,
wrongly, as follows-
“It seems to me that the submission of appellants
Counsel is the correct position of the law. The cause
of action therefore accrued before October, 1979.
The Constitution of 1979 would then be inapplicable
and the Petitions of Right Law (Act) would apply. It
would therefore follow that the action of the
respondent not having been commenced as
provided by the law should not have been
entertained by the court below. The legal position is
that where a special statutory provision is made for
making a claim, that provision ought to be pursued
in making it vide Lahan v. A.G. of the Western
Region , (1963) 1 All N.L.R. 226 at p.227; (1963) 2
S.C.N.L.R.47.”
In the appeal before us, two grounds were filed and
they both complain against the decision of the
Court of Appeal that the trial in the High Court was
incompetent since that court lacked jurisdiction
under the Petitions of Right Law of Oyo State and
that the appellant should have commenced the
proceedings in the High Court by adhering to the
provisions of the Petitions of Right Act. Arising from
these grounds of appeal four issues for
determination have been framed in the appellant’s
brief of argument. They read thus –
23
“i. Should the plaintiff, now appellant have
commenced his action against the respondents in
the High Court, by serving them with writ of
summons and not by way of Petition of Rights
(sic) Act ?
- The effect of non compliance with Sections 3 and
4 of the Petition of Rights Act., Cap.149 (sic) laws
of Federation adopted by the Petition of Rights law
of Oyo State, by first of all seeking the fiat of
Attorney General of the Federation, the 1st
defendant in this case, whose decision shall be
FINAL.
iii. Has the High Court jurisdiction in respect of an
action taken out in Court, after the commencement
of the 1979 Constitution in powers vested under
S.236 and S .6(6) (b) or has got its jurisdiction
ousted by the inhibitive provisions in the Petition of
Right law (sic) or Act.
- Is the Petition of Rights law orAct (sic)
constitutional, particularly in relation to provisions
in respect of FAIR-HEARING.”
The respondents failed to file their briefs of
argument, but their Counsel, Mr. Harris Eze was
allowed to present their case orally.
It seems to me that the real question for
determination in this appeal is: what is the effect of
the Petitions of Right Act, Cap. 149 vis-a-vis the
relevant provisions of the 1979 Constitution?
Before dealing with the question it is necessary to
correct the wrong impression manifestly held by
the Court of Appeal and learned Counsel for the
appellant, Mr. Shonibare, that it is the Petitions of
24
Right Law, of Oyo State, Cap.88 of the Laws of Oyo
State of Nigeria, 1978 that applied to this case.
Although the law and the Petitions of Right Act,
Cap. 149 are virtually the same in their contents,
there are vital differences. The latter, in Sections 3
and 4 thereof which have been quoted above,
refers to the Attorney General of the Federation
while the former directs its provisions to the
Attorney General of Oyo State. As the action in the
present case involves the Federal Government,
then it is the provisions of the Petitions of Right
Act, Cap.149 that apply and not those of the
Petitions of Right Law, Cap.88 of Oyo State. The
fact that the property which is the subject of the
rent in dispute is situated in Oyo State and the
action is brought in the High Court of Oyo State
makes no difference whatsoever, since state Courts
have general jurisdiction under the 1979
Constitution to try Federal causes and apply Federal
Legislations see Sections 236 and 250 thereof.
Furthermore, the Petitions of Right Act, Cap.149
applies to states by virtue of its Section 2 which
provides-
“2. Claims by the government of the federation or a
regional government or by any department of the
government of the Federation or of a regional
government against any private person shall be
brought by the Attorney General of the Federation
or of the region as the case may be, or by Jiny
officer authorized by law to prosecute such claims
on behalf of the government.”
The phrase “regional government” is of course
25
subject to modification under Section 274 of the
1979 Constitution to be interpreted to mean the
states of the federation.
I now turn to the question which I have posed for
determination. Section 6 subsection (6) (b) of the
1979 Constitution provides-
“(6) The judicial powers vested in accordance with
the foregoing provisions of this section –
…………..
(b) shall extend 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 obligations of
that person.”
The intendment of these provisions is to confer
general jurisdiction on the Courts established by the
1979 Constitution and at the same time to provide
access to the Courts, so established, to persons who
may have any contention on “all matters” as
between them and government or any authority or
any person. In contrast to this the provisions of
Sections 3 and 4 of the Petitions of Right Act,
Cap.149, which inhibit the taking out of a writ of
summons against the Attorney-General intended,
to some extent, to deny direct access to the courts.
It is only when the fiat is granted that access to the
courts becomes unimpeded. It is, therefore, obvious
that the provisions of Sections 3 and 4 of the
Petitions of Right Act are inconsistent with the
provisions of Section 6 subsection (6)(b) of the
1979 Constitution and the Court of Appeal was right
26
when it so held. Although Section 1 subsection (3)
of the 1979 Constitution, which reads-
“(3) If any other law is inconsistent with the
provisions of this Constitution, this Constitution
shall prevail, and that other law shall to the extent
of the inconsistency be void.”
has now been suspended by the provisions of the
Constitution (Suspension and Modification) Decree,
1984, No.1 of 1984, its (i.e. Section 1(3) of the
Constitution), provisions were extant at the time
the Writ of Summons was taken out by the
appellant on the 9th day of April, 1980. In effect,
as at that date, the provisions of Sections 3 and 4
of the Petitions of Right Act. as they relate to the
right to sue the Federal government, were void in
the light of the provisions of Section 1 subsection
(3) of the Constitution . As a result, there was
neither the necessity nor the need for the appellant
to obtain the fiat of the Attorney General at the
time he took out the Writ. The procedure by which
the action was commenced on the 9th day of April,
1980 was therefore in order and was not tainted by
any procedural irregularity.
This notwithstanding the Court of Appeal held that
the Petitions of Right Act applied to the case
on the ground that the cause of action arose before the
1st October, 1979, when the 1979 Constitution
became operative. With respect, I think the Court of
Appeal misunderstood the provisions of Sections 3 and
4 of the Petitions of Right Act . The sections merely
deal with the manner of commencing a suit against the
government of the Federation and its Ministries.
27
The sections make no mention whatsoever of cause
of action or the date when the cause of action
arises. Consequently, it was a misconception by the
Court of Appeal to hold that the provisions of
Section 6 (6) (b) of the 1979 Constitution were
inapplicable to the case. The questions as to when
the cause of action arose and when it was
commenced are matters of legislations that pertain
to the Limitation of Action (such as the Limitation
Act, 1966 No.80 of 1966) which were not relied
upon in the Court of Appeal and are, in any event,
irrelevant to the question that arose under the
Petitions of Right Act.
For these and the fuller reasons contained in the
judgment read by my learned brother, Eso, J.S.C.
the appeal succeeds. Happily, the Court of Appeal
went on to consider, in the alternative, the appeal
on its merits and affirmed the decision of the
learned trial judge. In this regard I agree with the
decision of the Court of Appeal. Accordingly, I set
aside, the decision of the Court of Appeal which
held that the action brought by the appellant in the
High Court was incompetent and in its place I
restore, in its entirety, the judgment of the learned
trial judge which was given in favour of the
appellant with order as to costs as contained in the
judgment read by my learned brother Eso, J.S.C.
— SALIHU MODIBBO ALFA BELGORE, J.S.C.:
I
allowed this appeal on 16th day of 1990 and reserved
my ruling to today. I now give my reasons, based on
the lucid review of events in the case and exposition
of the
28
Constitution and its effect on Petition of Rights Act
by my learned brother, Eso, J.S.C., with which I am
in full agreement. For the same reasons I allowed
this appeal and made the same consequential orders.
— ABUBAKAR BASHIR WALI, J.S.C.:
I have
had the privilege of reading in advance, a copy of the
reasons for judgment of my learned brother, Eso,
J.S.C., which has just been delivered. I agree entirely
with the reasoning and conclusions contained in the
reasons for judgment. I just want to add these by
way of emphasis.
The facts of this case have been well stated in the
lead reasons for judgment and therefore need no
further repetition.
Before the High Court of Ibadan Judicial Division of
the High Court of Justice of Oyo State of Nigeria,
the appellant as plaintiff in the person of Alhaji
Chief R. B. Bakare sued –
(1) The Honourable Attorney-General of the
Federation
(2) The Accountant -General of the Federation
(3) The Permanent Secretary, Federal Ministry of
Works and Housing,
claiming against them, the sum of N138,890.40k
(One Hundred and Thirty-eight Thousand, Eight
Hundred and Ninety Naira and Forty Kobo)
being rent in respect of
plaintiff’s property known as TENSON HOUSE,
situate at 9/10 Ring Road, Ibadan, let to the
defendants at Ibadan for the period 1978/1979;
1st August 1979 to 31st July, 1980.
29
PARTICULARS OF CLAIM
(a) Arrears of rent for the 1978 to
1979 … N42,445.20
(b) Rent for the period 1st August
1979 to 31st July 1980…. N96,445.20
TOTAL……. N138,890.40
After protracted adjournments the case proceeded
to trial on the merits on pleadings filed and exchanged.
At the trial the appellant gave evidence and called
two witnesses. For the defence, the 2nd defendant
and one other witness also testified.
The learned trial Judge gave a painstaking
consideration to the evidence and the issues raised
and concluded –
“The defendants have now become a yearly tenant.
Under the law either party must give at least six
months notice but this does not preclude the
parties from contracting for the determination of
any notice of whatever length and wherever
expiring that they think fit. In the absence of any
agreement by the parties in this case to the
contrary, I hold that the defendants are bound to
give plaintiff six months notice to quit. They did not
do so in this case and after purporting to surrender
the keys of the property to the plaintiff they
continued to remain in possession by putting their
own interior decorator on the premises for two
months after 31/7/79. This is an act consistent with
continuance of tenancy previous surrender of keys
notwithstanding. Exhibit H shows and confirms the
defendants’ acknowledgement of having extended
30
their stay beyond 31/7/79. I therefore hold that
the plaintiff is entitled to another year’s rent less
the sum of N5,000 for non installation of a lift. This
amounts to N54,100.”
The learned trial Judge entered judgment against
the defendants/respondents in favour of the
plaintiff/appellant in the sum of N54,100.00. The
respondents appealed against the judgment to the
Court of Appeal.
In the Court of Appeal, the issue of the application
of Petitions of Right procedure to the action was the
first issue to be dealt with, wherein Uche Omo,
J.C.A. said-
“Secondly, did the cause of action arise before or
after the commencement of the Constitution in
October, 1979? This is important because the
provisions of the Constitution can only apply in
respect of the latter, since its provisions do not
have retrospective effect vide F.S. Uwaifo’s case
(supra).
Whilst Counsel for the appellant has submitted that
the cause of action in this case arose between 1978
and August, 1979 when the rents became due and
payable, respondents counsel’s submission in his
brief is that the important date is that on which the
action was taken. Before us, in oral argument
respondent’s Counsel has submitted that the
operative date when cause of action accrued is
after the rent had been demanded and not paid i.e.
after exh. G was written on 23/11/79.
It seems to me that the submission of appellants’
Counsel is the correct position of the law. The cause
of action
31
therefore accrued before October, 1979. The
Constitution of 1979 would then be inapplicable and
the Petitions of Right Law would apply. It would
therefore follow that the action of the respondent
not having been commenced as provided by that
law should not have been entertained by the Court
below. The legal position is that where a special
statutory provision is made for making a claim, that
provision ought to be pursued in making it vide
Lahan vs Att. Gen. of the Western Region (1963) 1
All N.L.R. 226 of 227; (1963) 2 S.C.N.L.R.47. If I
am right, then this appeal should immediately be
allowed, the judgment of the court below set aside,
and the action struck out as incompetent.”
Having done that, the learned Justice of the Court
of Appeal then proceeded to consider the appeal on
its merits and at the end of the exercise, concluded
that –
“Respondent’s Counsel has rightly submitted that
the law is that such a tenancy has to be determined
by the giving of a valid 6 months notice. In default
of agreement, a yearly tenancy can be determined
by at least half a year’s (six months) notice
expiring at the end of the completed year of the
tenancy vide (1) Sidebotham v. Nicholson 1902
1K.B.
In this case therefore a valid notice should have
been given latest on the last day of February, 1979
to expire on 31/7/79. Not only was it not given
then or on 31/7/79, but appellants remained on the
premises for another two months. I therefore agree
with the learned trial Judge that no valid Notice of
32
termination of the tenancy was given by the
appellants.
What then is the effect of the “holding over” by the
appellants in the premises for another two months,
for which they paid pro rata rent on the basis of the
original agreed rent? Counsel for the appellants has
submitted that what is created by this situation is a
tenancy at will which arises-
‘….whenever a tenant with the consent of the owner
occupies land as tenant….on terms that either party
may determine the tenancy at any time…..
vide Law of Real Property by Megarry and Wade
4th Edition at P.638. I am afraid I cannot accept
this submission because the tenants in this case did
not remain on the premises with the consent of the
owner. I think it would be more correct to hold that
what was created was a tenancy on sufferance i.e.
holding over without the consent of the landlord.
Contrary to the submission of appellants’ Counsel
the obligation arising therefore, in the absence of
consent would not be the payment of 2 months
rent. Instead, as found earlier, the appellants have
to pay due rent having failed to give the
appropriate notice. This in the finding of the trial
Judge, with which I agree, is a year’s rent for the
period 11/8/79 – 31/7/80. This must be calculated
on the basis of the old rent which is N54,100.00.
To conclude on the merits, should my decision that
this action is incompetent be wrong, I would
dismiss the appeal and affirm the judgment of the
learned trial Judge in the court below with costs to
the respondent assessed at N250.00 against the 1st
33
and 2nd appellants only.”
It is evident from the record before this Court that
the issue of the application of Petitions of Right
procedure was first raised by the learned Counsel
for the respondents in his final address before the
trial Court at the conclusion of his evidence. It was
not pleaded nor raised by way of preliminary
objection.
In his submissions before this Court, learned
Counsel for the appellant, Olatunde Shonibare
conceded that the Petitions of Right Act, Cap.149,
Laws of the Federation of Nigeria and Lagos, 1958,
is the applicable law and not the Petitions of Right
Law, Cap.88, Law of Ondo State, 1978.
The relevant provisions of the Petitions of Right Act
are Sections 3, 4 and 5 which I reproduce hereunder:-
“3.(1) All claims against the Government, or
against any Government Department, being of the
same nature as claims which may be preferred
against the Crown in England by petition,
manifestation or plea of right may, with the
consent of the Governor-General be preferred in a
Superior Court having original jurisdiction in
respect thereof in a suit instituted by the claimant
as plaintiff against the Attorney General of the
Federation as defendant, or such other officer as
the Governor General may from time to time
designate for that purpose.
(2) In this section “Superior Court” means a High
Court or the Federal Supreme Court.
- The claimant shall not issue a Writ of summons,
but the suit shall be commenced by the filing of a
34
Statement of Claim in the court and the delivering
of a copy thereof at the office of the Attorney
General of the Federation or other officer
designated as aforesaid, and no fee shall be
payable on filing or delivering such statement.
- The registrar shall forthwith transmit the
Statement of Claim to the secretary to the
Governor General and council of Ministers and the
same shall be laid before the Governor General. In
case the Governor General shall grant his consent
as aforesaid, the Statement of Claim shall be
returned to the Court, with the fiat of the
Governor General endorsed thereon, and the claim
shall be prosecuted in the Court.”
Also, the relevant provisions of the 1979
Constitution are Sections 6(6)(b); 33(1) and 277(1)
and which are-
“(6) The judicial powers vested in accordance with
the foregoing provisions of this section –
(a) x x x x x
(b) shall extend 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 obligations of
that person,”
……………
“33. (1) In the determination of his civil rights and
obligations, including any question or
determination by or against any government or
authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or
35
other tribunal established by law and constituted in
such manner as to secure its independence and
impartiality.”
“277(1) In this Constitution, unless it is otherwise
expressly provided or the context otherwise
requires – “government” includes the Government
of the Federation, or of any state, or of a local
government council or any person who exercises
power or authority on its behalf.”
It is pertinent to mention here that the action was
filed in the High Court on 9th April, 1980. The date
of filing of the action is the determinant factor as to
whether or not the Petitions of Right procedure
would apply.
The Constitution of Nigeria, 1979 came into force
on 1st October 1979 and as the action was filed on
9th April, 1980 the relevant provisions of the
Constitution, to wit Sections 6(6)(b), 33(1) and
277(1) apply to it.
The provisions of subsection (6)(b) of Section 6 and
subsection (1) of Section 33 of the 1979
Constitution read together, vest in a person an
unabridged right of access to a Court established
under Section 4 of the Constitution or any tribunal,
having jurisdiction in the matter, for the
determination of any question as to his civil rights
or obligations arising between him and any
government within the Federation or any authority
or any other person. Section 33(1) of the
Constitution in particular nullifies any law that
accords to any government, be it Federal, state or
local government, or any person exercising
36
authority or power on behalf of any of them, the
power to abridge the right of any person of access
to the court to sue such a government or person
without a fiat first being sought and obtained. The
Constitution is the supreme law and supercedes any
other legislation which is contrary to it. To that
extent the constitutional provision shall prevail.
Section 277(1) of the Constitution in which
“government” is defined includes the Federal
Government.
It is therefore my conclusion that the procedure of
Petitions of Right as contained in the Petitions of
Right Act, Cap.149 Laws of the Federation of
Nigeria and Lagos, 1958 is inconsistent with
Sections 6(6)(b) and 33(1) of the 1979 Constitution
and to that extent, null and void.
There is no doubt that this is a significant
development in the Nigerian legal history, as it
marked a departure from the old procedure under
the previous Constitutions which were
parliamentary and modelled on the British system.
Even in England now, the Petitions of Right
procedure has been abolished for almost all
purposes, by the Crown Proceedings Act, 1947.
The judgment of the Court of Appeal in which it
allowed the appeal and set aside the judgment of
the trial court on grounds that the technical
procedure of Petitions of Right applied to the action
is hereby set aside. The appeal is allowed. The
learned Justice of the Court of Appeal has
considered the case on its merits and concluded
that the appeal lacked merit and he dismissed it. I
37
agree with this verdict and accordingly uphold it.
It is for these and the fuller reasons contained in
the lead reasons for judgment of my learned
brother, Eso, J.S.C., that I allowed this appeal on
16th July, 1990.
— OLAJIDE OLATAWURA, J.S.C.:
I have had a
preview of the judgment of my learned brother, Eso,
J.S.C. just delivered. I agree with his reasoning and
conclusions.
When this appeal came before us on 16th July,
1990 I allowed the appeal and I indicated I would
give my reasons today. I now give my reasons.
The appellant who was the plaintiff in the Court of
trial i.e. High Court of Oyo State in his indorsed
Writ of Summons claimed from the defendants now
respondents in this Court as follows:
“The plaintiff’s claim against the defendants the sum
of N138,390.40k (One Hundred and Thirty-eight
Thousand, Eight Hundred and Ninety Naira, Forty
Kobo) being rent in respect of plaintiff’s property
known as TENSON HOUSE, situate at 9/10 Ring
Road, Ibadan, let to the defendants at Ibadan for
the period 1978/1979; 1st August, 1979 to 31st
July 1980.
PARTICULARS OF CLAIM:
(a) Arrears of rent for the 1978 to 1979 – N42,445.20
(b) Rent for the period 1st August,
1979 to 31st July, 1980- N96,445.20
TOTAL – N138,890.40
ALTERNATIVELY,
38
The plaintiff claims the said sum of N138,890.40
as damages for breach of tenancy agreement.”
Pleadings were ordered and filed. Evidence was led
on both sides. It was during the address of the
learned counsel for the defendants at the trial that
the issue of jurisdiction was raised. It was based on
the non-compliance with the Petitions of Right Law.
The learned trial Judge made no reference to this
aspect of the address and concentrated on the
merits of the claims before the Court. Judgment was
entered in favour of the plaintiff for the sum of
N54,100.00 with costs assessed at N400.00. The
defendants were dissatisfied with the judgment and
appealed to Ibadan Division of the Court of Appeal.
Since what is in issue in this Court is whether the
Petitions of Right Law still lies having regard to the
Constitution of the Federal Republic of Nigeria,
1979 (hereinafter referred to as the 1979
Constitution) it will no longer be necessary to refer
to all the grounds of appeal and issues raised in the
lower Court except the one dealing with the
Petitions of Right Law. It was submitted before the
lower Court by the appellants in that Court who are
now the respondents in this Court that by virtue of
the Laws of Oyo State of Nigeria, 1978, the
jurisdiction of the Court has been ousted in that the
plaintiff/respondent in that Court failed to follow the
Petitions of Right Law of Oyo State. It is
appropriate to state at this stage that the proper
law is the Petitions of Right Act, Cap. 149 Laws of
the Federation notwithstanding the provisions of
the Petitions of Right Law of Oyo State are the
39
same with those of the laws of the Federation since
the claims were against the Government of the
Federation, the Accountant General of the
Federation and the Permanent Secretary, Federal
Ministry of Works and Housing. See Legal Notice
112 of 1964 which amended Section 3 of the
principal law. The submission of learned Counsel for
the appellants in the lower Court can be found on
page 193 of the record of appeal. Put briefly it is
that the procedure laid down by the Petitions of
Right Law of Oyo State was not followed and that
the 1979 Constitution could not have saved the
situation in that the cause of action arose before
the 1979 came into operation and the case of F.S.
Uwaifo v. Attorney General of Bendel State & Ors
(1982) 7 S.C.124 was cited in support of that
proposition. In dealing with this issue the Court of
Appeal per Uche Omo, J.C.A. said:
“I would hold that the Petitions of Right Law cannot
prevent the respondent in the absence of any other
disability, from commencing an action after
October, 1979 to recover rents due to him.” I
agree.
However the lower Court on procedural ground
ruled that since the cause of action accrued before
the 1979 came into existence, the 1979
Constitution would not be applicable and
consequently the Petitions of Right Law would
apply. The judgment of the trial Court was set aside
and the action was struck out as being
incompetent. The lower Court relied on Lahan v.
Attorney General of the Western Region (1963) 1
40
All N.L.R.226; (1963) 2 S.C.N.L.R.47. The lower
Court again, in the alternative considered the
merits of the appeal and dismissed the appeal if the
issue of Petitions of Right law was inapplicable.
The plaintiff now the appellant in this Court has
appealed against the decision of the Court of
Appeal. The appeal was argued on the only
additional ground of appeal which without the
particulars reads:
“That the learned Justices of Appeal Court erred in
law when they held that the plaintiff should have
commenced his action by way of Petition of Rights
(sic) and not by Writ of Summons, when the same is
not mandatory.”
The appellant filed a brief. It is necessary to point
out that it is waste of time in writing a brief meant
for the court to include in the said brief the grounds
of appeal filed and argued in the lower Court as
these are embodied in the record of appeal
forwarded to this court. See pages 123-124 of the
Record of Appeal. In this particular appeal no
reference was made to these grounds in this Court
as the only ground of appeal filed and argued
before us is the one I have set out above. The
bulkiness of a brief devoid of merit and which in
addition contains irrelevant matters is a waste of
the precious time of the Court. A good brief is the
one that consists of relevant facts and laws which
are necessary for the determination of the appeal.
The facts as found by the learned trial Judge and
confirmed by the Court of Appeal are not in
dispute, it is the procedure adopted by the
41
appellant that has given rise to the appeal. This is
clearly stated in the appellant’s brief thus:
“The issue for determination in this case had been
narrowed down as it all hinges on one particular
matter which is THE PROCEDURE for the
commencement of the action in the High Court.”
In settling the issues for determination, I will set
down only two of the issues raised by the appellant
and which are germane to this appeal. They are:
“1. Should the plaintiff, now appellant have
commenced this action against the respondents in
the High Court, by serving them with Writ of
Summons and not by way of Petition of Rights? (sic)
- Has the High Court jurisdiction in respect of an
action taken out in court, after the commencement
of the 1979 Constitution in view of the
constitutional powers vested under S .236 and
S.6(6)(b) or has got its jurisdiction ousted by the
inhibitive (sic) provisions in the Petition of Rights
Law or Act (sic)”.
A great deal of the appellant’s brief deals with the
interpretation of the word “May” as it appears in
Sections 3 and 4 of the Petition of Rights Law. This
is unnecessary having submitted that the cause of
action arose after the 1979 Constitution.
Unfortunately and in respect of an important appeal
which is based on the interpretation of the 1979
Constitution, the respondents did not file a brief.
Mr. Harris-Eze the Director of Civil Litigation sought
leave to present an oral argument. This was
granted. See Order 6 Rule 9(1) of the Supreme
Court Rules 1985. Having failed to cross the first
42
hurdle that the cause of action arose before the
1979 constitution, he did not contest the appeal
again. It was a wise decision.
It is manifest from the lead judgment of Uche,
J.C.A. that the Court of Appeal was of the firm view
that the Petitions of Right Law can no longer apply
in view of the provision of the 1979 Constitution;
but the Court was of the view that since the cause
of action occurred before the 1979 Constitution,
and on the authority of F. S. Uwaifo v Attorney
General of Bendel State & Ors (1982) 3
N.C.L.R.296 , the 1979 Constitution has no
retrospective effect. I think the lower Court was in
error.
In the lower Court, there was this submission that
the cause of action arose after 1979 i.e. from the
date there was a demand of the debt. There is
ample justification for this submission. It is
therefore no longer necessary to wade into this
controversy based on cause of action in that it is
the applicability of the Petitions of Right Law that is
in issue. The finding of the learned trial Judge that
the respondents extended their tenancy beyond
31/7/79 has not been challenged.
Sections 6(6)(b) and 236 of the 1979 Constitution
have removed the clog which the Petitions of Right
Law placed in the way of a litigant with regard to
access to the court. The inhibitive provisions in the
Petitions of Right Law have denied justice to those
who had a cause of action against the state.
This apparent injustice is implicit in the provision of
Section 4(2) which gives a discretion to a proposed
43
defendant (the 1st respondent in this appeal) to
refuse or give his consent to an action before it
could be filed. It is a fetter on administration of
justice. The Constitution i.e. Section 6(6)(b) which
gives unrestricted access to the Courts provides:
“6. The judicial powers vested in accordance with
the provisions of this section:
(b) shall extend 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 obligations of
that person.”(capital supplied and italics is mine)
In the circumstances the appeal is allowed, the
judgment of the learned trial Judge (Ige, J.) is
hereby restored. I will abide by the order of costs
contained in the lead judgment of my learned
brother; Eso, J.S.C.
— EPHRAIM OMOROSE IBUKUN AKPATA, J.S.C.:
On the
16th day of July, 1990, I allowed the appeal of the
plaintiff and made consequential orders as to costs in
respect of the proceedings in the High Court, the
Court of Appeal and this Court. I indicated then that
I would give my reasons for allowing the appeal today,
14th September, 1990.
Having had a preview of the reasons for the
judgment of my learned brother, Eso, J.S.C., and
being in agreement with his reasoning and
conclusions reached by him, I find it unnecessary to
go over the aspect of the appeal sufficiently
44
covered by him. I shall however treat one of the
points arising from the two issues for
determination.
The essential facts of the case giving rise to this
appeal have been clearly stated in detail in the
reasons for judgment of my learned brother. Put
briefly, the claim of the plaintiff against the
defendants, The Attorney-General and the
Accountant-General of the Federation, for rent in
respect of his landed property was found
established by the learned trial Judge. The
defendant being dissatisfied with the decision
appealed to the Court of Appeal, Ibadan Division,
basing his complaint on six grounds. The fourth
ground of appeal, which is relevant here, was that
the learned trial Judge erred in law in not holding
that the procedure adopted by the plaintiff in
bringing the action was wrong in law in that the
action sounded in contract and ought to have been
commenced by way of a petition of right requiring
the fiat of the Attorney-General of the Federation,
the first defendant in the action.
In allowing the appeal, Uche Omo, J.C.A.,
(concurred in by Omololu-Thomas and
Sulu-Gambari, JJ.C.A.) observed thus:
“The Petitions of Right Law, by virtue of S.274(1) of
the Constitution would be an “existing law” which
remains part of the law of the land. To the extent
that it purports to prevent an aggrieved party from
taking direct action in court, it means to me that it
must be adjudged inconsistent with the provisions
of the Constitution and to that effect void.”
45
The learned Justice of the Court of Appeal then
drew attention to the fact that the cause of action
arose between 1978 and August, 1979 when the
rents became due and payable. Though satisfied
that the action was instituted on 9th July, 1980, he
was however of the view that since the cause of
action accrued before October, 1979 when the
1979 Constitution came into effect, the said
constitution was inapplicable and that the Petitions
of Right Law or Act applied. He therefore concluded
that since the action of the plaintiff was not
commenced as provided by the said law or act, it
was incompetent and that the trial High Court
ought to have struck it out. The judgment of the
trial court was accordingly set aside.
The two grounds of appeal filed by the plaintiff
against the judgment of the Court of Appeal are to
the effect that the Court of Appeal erred in law in
holding that the Petitions of Right Act was
applicable,
- When the action was commenced after October,
1979 and in view of the provisions of Section 6
(6)(b) of the 1979 Constitution; and
- Since Section 3 of the Petition of Right Act or
Law only gave the plaintiff the option to commence
his action by way of petition of right.
The two relevant issues arising from the two
grounds of appeal therefore are:-
- Whether an action instituted after the 1979
Constitution had come into effect is subject to the
Petitions of Right Act even though the cause of
action accrued before the date of commencement of
46
the said 1979 Constitution.
- Whether the use of the word “may” in Section 3
of the Petitions of Right Act, Cap. 147 Laws of the
Federation of Nigeria 1958 gives a plaintiff the
option to either proceed under the act or initiate an
action by a Writ of Summons without seeking the
consent of the Attorney-General.
My learned brother, Eso, J.S.C., has adequately
dealt with the first issue. It is the second issue
which has attracted my attention and calls for
consideration. It is to be noted that learned Counsel
for the plaintiff/appellant adopted his brief of
argument in its entirety, although proffered oral
argument only in respect of the first issue.
It is the contention of the appellant, through his
Counsel Mr. Shonibare, that by virtue of Section
3(1) of Petitions of Right Act , a plaintiff had the
option either to seek the fiat of the Attorney
General or to institute his action by way of a writ
of summons without seeking the consent of the
Attorney General. In effect the appellant contends
that whether or not the action was instituted before
the 1979 Constitution came into effect, an action
initiated by a Writ of Summons was competent since
Section 3(1) was only permissive.
It is true as stated at pages 227 Volume 3 of
“Words and Phrases Legally Defined”, to which Mr.
Shonibare drew our attention, that the word ‘may’
always means may. ‘May’ is a permissive or
enabling expression but there are cases in which
for various reasons, as soon as the person who is
within the statute is entrusted with the power, it
47
becomes his duty to exercise it.” Also as pointed
out in Halsbury’s Laws of England 3rd Edition
Volume 433 “the use of the word ‘may’ prima facie
conveys that the authority which has the power to
do such act has an option either to do it or not to
do it.” What this boils down to in respect of
Petitions of Right Act is that a claimant was at
liberty, if he chose, to pursue his claim by way of
petition of right which was the only avenue open to
him to seek redress. It does not imply, as Mr.
Shonibare would like this court to hold, that a
claimant had the option to proceed by way of a
petition or by means of a Writ of Summons.
The history of English law shows that the Crown
could, as a rule, only be sued by petition of right in
certain cases and no petition of right could be
brought without the fiat of the Attorney General.
Indeed by English common law no proceedings to
enforce a remedy for tort, could lie against the
crown, not even by petition of right. A claim could
not be made against the Crown by a writ which
asserted a legal right to redress. A legal right did
not lie against the Crown.
In the appellant’s brief of argument, Mr. Shonibare
referred to Sections 3 and 4(2) of the Petitions of
Right Act . Due to oversight, I think, he made no
reference to Section 4(1) which reads:
“The claimant shall not issue a Writ of Summons,
but the suit shall be commenced by the filing of a
Statement of Claim in the court and the delivering
of two copies thereof at the office of the Attorney-
General of Federation,………..”
48
It can be seen that a claimant was specifically
precluded from proceeding against the government
by a Writ of Summons. The liability of the state in
this country before October, 1979 was the same as
that of the position of the Crown in England at
common law before the commencement of the
Crown Proceedings Act, 1947 in England. Before
Section 6(6)(b) of the 1979 Constitution came into
effect, a claimant had no such legal right to redress
except with the consent of the Attorney General.
Indeed if as contended by learned counsel for the
appellant, a plaintiff had the option to proceed
either by way of petition of right or by Writ of
Summons such option would render the petition of
right process almost meaningless as no one would
opt for it because it was in the discretion of the
Attorney General, an adversary of the claimant, to
permit him to bring his action or not, and that
discretion was sometimes abused.
It is clear to me that the only option open to a
claimant before the 1979 Constitution came into
effect, as provided by Section 3 of the Petitions of
Right Act , was the option to ‘take it or leave it’ and
not the option to ‘pick and choose’. It was not a
choice involving the acceptance of one and the
rejection of the other. The position therefore is that
if the appellant had instituted his action by a Writ of
Summons before the 1979 Constitution came into
effect, it would have been incompetent. There is no
merit in ground two.
This appeal however succeeds on the basis of the
first ground of appeal. This is so because the Petitions
of Right Act which
49
was an anachronism in our statute book, as rightly
observed by my learned brother Eso, J.S.C., has
been removed by subsection 6(b) of Section 6 of
the 1979 Constitution. The pre 1947 proceedings by
petition of right or monstrous de droit to recover
property from the Crown in England and for specific
injuries to private persons, and which was made to
pollute our statute book by its adoption by the
Petitions of Right Act, were begun by petition or bill
and depended on the King’s grace.
What was regarded as a reform of the procedure
upon a petition of right by the Petitions of Right Act
of 1860 in England and the decisions of the English
courts in the 19th and early 20th centuries that a
petition of right lay for breach of contract (see
Thomas v. The Queen (1874) L.R.10 Q.B. 31 ) and
for a breach of statutory duty (see Attorney
General v. De Keyser’s Royal Hotel (1920)
A.C.508), no doubt enhanced the legal position of
the subject, to a certain extent, from the
arbitrariness of servants of the Crown. This half
way measure introduced by a number of Petitions
of Right Acts and case law in England before 1947
and adopted by this country long after England had
discarded it, is now overridden by Section 6(6)(b) of
the 1979 Constitution . This section of the
Constitution has gone the whole hog to give a
breath of fresh air to the legal principle of the
equality of the citizen and the state before the law.
The legal position that any action instituted after
the 1979 Constitution had come into effect cannot
be encompassed by the Petitions of Right Act,
50
regardless that the cause of action arose before the
said Constitution came into being, has been lucidly
treated by my learned brother, Eso, J.S.C. I have
nothing useful to add. It was for these reasons that
I allowed the appeal of the plaintiff and set aside
the judgment of the Court of Appeal on 16th July,
- I adopt the order of my learned brother as to
costs which is in line with the order I made on the
date the appeal was allowed.
Appeal allowed.
51
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Attorney General v. De Keyser's Royal Hotel (1920) AC 508.
Banker's case (1700) 14 ST 1.
Chief (Mrs.) Olufunmilayo Ransome Kuti v. Attorney General of the Federation and Ors [1985] 6 SC 246; (1985) 2 NWLR (Pt. 6) 211.
F.S. Uwaifo v. Attorney General of Bendel State (1982) 7 SC 124; (1982) 3 NCLR 296.
Lahan v. Attorney General of the Western Region (1963) 1 All NLR 226; (1963) 2 SCNLR 47.
Sidebotham v. Nicholson (1902) 1 KB.
Smith v. Brown (1705) 2 Salk 666.
Thames Ironworks and Ship Building Co. v. R. (1869) 10 B & S 33.
Thomas v. The Queen (1874) LR 10 QB 31.
Referenced Statutes
Constitution of the Federal Republic of Nigeria, 1979, Sections 1(3), 4(8), 6(6)(a), 6(6)(b), 33, 33(1), 236, 250, 274, 274(1), 277(1).
Constitution (Suspension and Modification) Decree, 1984, No. 1 of 1984.
Crown Proceedings Act, 1947 (England).
High Court (Civil Procedure) Rules, Cap. 46 of the Laws of Oyo State of Nigeria, 1978, Order 23 Rule 2.
Interpretation Act, Cap. 89, Laws of the Federation of Nigeria and Lagos, 1958, Section 45(1).
Legal Notice No. 112 of 1964.
Petitions of Right Act, Cap. 149, Laws of the Federation of Nigeria, 1958 (as amended), Sections 2, 3, 4, 4(1), 4(2), 5.
Petitions of Right Act, 1860 (England).
Petitions of Right Law, Cap. 88, Laws of Oyo State of Nigeria, 1978.