Attorney General, Eastern Nigeria V. Attorney General Of The Federation (1964)

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BRETT. J.S.C.

In these two actions the Government of Eastern Nigeria sues the Government of the Federation, with their respective Attorneys General as nominal parties in accordance with Order 2, rule 2 of the Federal Supreme Court Rules. The actions are brought in the original jurisdiction of the Court under section 114( 1) of the Constitution of the

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Federation, and have been consolidated with the consent of the parties. The relief asked for in each case is a declaration that ‘the defendant, his servants, or agents, are not entitled to accept or act on the 1963 census figures.’ In S.C. 232/1964 the Statement of Claim goes on to allege that the manner in which the census was conducted was unconstitutional, ultra vires and illegal and was therefore null and void, on the grounds of a wrong assumption of jurisdiction by the Prime Minister of the Federation, and the contravention of statutory provisions in the unauthorised setting up of a Census Board responsible to the Prime Minister. In S.C. 231/1964 it is alleged that the taking of the census was vitiated on the ground of irrelevant considerations and bad faith and particulars are attached of irregularities which are said to be such that no reasonable authority could accept and act on the figures.

In accordance with Order 3, rule 1, the proceedings have been commenced not by the issue of writs of summons but by the filing of Statements of Claim, and it is to be assumed that the Statements of Claim comply with the requirement that a pleading shall contain a statement in a summary form of the material facts on which the party pleading relies. We point this out, since at times the Solicitor General for Eastern Nigeria, who represented the plaintiff on the hearing of the motions which we are now considering, spoke as if no pleadings had yet been filed and as if the Court knew no more of the issues than could be inferred from the relief claimed.

The defendant has entered an appearance, and has filed a motion in each case asking the Court to dismiss the action on the grounds (a) that the Statement of Claim discloses no cause of action; (b) that the Court has no jurisdiction to entertain the claim; and (c) that the action is frivolous and vexatious and an abuse of the process of the Court. If these motions succeed that will be an end of the cases, and no proceedings will be necessary on the summonses for directions taken out by the plaintiff.

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Order 2, rule 1, of the Federal Supreme Court Rules lays down that where no provision exists in the rules the practice and procedure of the Court in its original jurisdiction shall be conducted in substantial conformity with the practice and procedure for the time being observed in England in the High Court of Justice. The plaintiff submitted, on the authority of a number of English decisions on what is now Order 12, rule 1, of the Rules of the Supreme Court, that having entered an unconditional appearance the defendant is debarred from raising an objection to the jurisdiction of the Court. It is clear from the decision of the Court of Appeal in Wilkinson v. Barking Corporation [1948] 1 K.B. 721, and from other cases cited in the notes in the Annual Practice, 1964, at p. 132, that the bar only extends to objections of a kind that are capable of being waived, and not to cases where there is a total want of jurisdiction. Alternatively, the plaintiff submitted that it would be contrary to accepted practice to dismiss the action summarily at this stage, and he referred to the opinion of the Judicial Committee in Electrical Development Co. of Ontario v. Attorney-Generalfor Ontario and Anor. [1919] A.C. 687. In that case a writ had been set aside before pleadings had been filed, and the Board was of the view that in the circumstances of that case this ought not to have been done until the precise nature of the plaintiffs claim had been formulated and the, facts, so far as necessary, had been ascertained.

In the present cases the plaintiff has disclosed the precise nature of his claims and stated the Facts on which his claims are based and if the Court is satisfied that his Statement of Claim in either action discloses no cause of action, or that the Court has no jurisdiction, he is not entitled to demand that the Court should defer a ruling to this effect until it has inquired into the facts. It is hardly necessary to add that in considering a motion for dismissal on either of these grounds the Court must assume that the plaintiff could prove the facts which he alleges.

Paragraphs 1 to 7 of the two Statements of Claim are virtually identical. The first three are introductory; the next four read as follows:-

‘4. Some time in 1963 the Prime Minister and the other Regional Premiers set up a Census Board to conduct another population count.

The Board was made to be responsible to the Prime Minister. This time the total population figure rose to 55,653,821 million made up in the following manner:-

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North: 29,777,986; East: 12,388,646; West: 10,278,500; Mid-West: