Alhaji Chief A. B. Bakare V. The Attorney-general Of The Federation & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

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 –

1. 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).
2. 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 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 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-

1. The Attorney-General of the Federation;
2. The Accountant-General of the Federation; and
3. 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 July, 1980.

PARTICULARS OF CLAIMS

(a) Arrears of rent for the 1978 to 1979 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

1. The plaintiff is the owner of the house as “TENSON HOUSE”, 9/10 Ring Road, Ibadan, within the Ibadan Judicial Division.
2. The 1st defendant is by virtue of his office the agent of the Federal Government of Nigeria for the purpose of all litigations.
3. 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.
4. 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 government valued the said “Tenson House” for the purpose of the tenancy agreement which is the subject of this action.
5. 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.

………………….

………………….

8. 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 1st August, 1975.
9. 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.
10. 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.
11. 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 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.

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 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), SS.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 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 Iron works 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.1 (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 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 –

3. “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.
4. 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 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 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…”

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 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

BELLO, C.J.N.: 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 Ccnstitution 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 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.

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SC.293/1988