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:

2,533,337; and Lagos 675,352.

5. By their letter No: FCB/2/248 dated 24th February, 1964 the Census Board communicated what they described as provisional figures to the Prime Minister.

6. Notwithstanding the grave doubts cast on the figures by the Census Board, the Prime Minister accepted and published them without the prior consent of the Premiers.

7. Following the publication, the Governments of Northern and Western Nigeria respectively accepted the figures whilst the Governments of Eastern and Mid Western Nigeria respectively rejected them on the grounds of inflation and gross irregularities and unauthorised acts.’

The only comment necessary on these paragraphs is that since it is part of the plaintiffs own case that the Premier of the Region concurred in the setting up of a Census Board responsible to the Prime Minister the plaintiff cannot found a claim for a discretionary remedy like a declaration which, though extended in ambit, originated as an equitable remedy in the Court of Chancery, on a submission that the setting up of the Board amounted to a contravention of statutory provisions. The submission appears from the pleading to be without substance in any event, and it is not alleged that the Premiers or anyone or more of them had a right to veto the acceptance of the figures. ,

Paragraphs 8 to 12 of the Statement of Claim in S.C.232/1964 read as follows:-

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‘8. The Plaintiff like the other Governments within the Federation enjoys vital rights in respect of Census.

9. At present, the Eastern House of Assembly comprises 146 members and there are as many constituencies as there are members of the House and these constituencies are based on population quota.

10. The number of seats and constituencies in the North, West, Mid- West and Lagos are equally based on population quota.

11. The holding of a Census of the population has the effect of bringing about alteration in the number of constituencies and seats in the various Legislatures of the Federation including the Legislature of Eastern Nigeria otherwise known as the Eastern House of Assembly.

12. The Federal Government has evolved a policy whereby monetary grants are made to the various Regional Governments within the Federation on population basis.’

Paragraphs 8 and 12 of this pleading are repeated in S.C.231/1964 as paragraphs 11 and 12; paragraphs 8 to 10 in that Statement of Claim allege certain grounds for doubting the accuracy of the census figures.

There are therefore in substance two grounds on which the plaintiff rests the submission that if the facts alleged can be proved this is a case for the grant of a declaration. It is said that the acceptance of the census figures will affect both the demarcation of electoral constituencies and the making of monetary grants in such a way as to prejudice the legal rights of Eastern Nigeria. We emphasize the words ‘legal rights’ since that is the test of jurisdiction under section 114( 1) of the Constitution of the Federation, which reads as follows:-

‘The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a Region or between Regions if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.’

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Constituencies for elections to the Eastern Nigerian House of Assembly are quite distinct from constituencies for elections to the Federal House of Representatives. Their demarcation is the responsibility of a Regional ‘competent authority’ and requires the approval of the two legislative houses of the Region,. and although the authority may find it convenient to adopt the figures shown in the national census if it considers them reliable, section 14(6) of the Constitution of Eastern Nigeria does not require it to do so. The number of such constituencies is prescribed in the Constitution of the Region, and does not depend on the figures of the national census. It follows that only the effect of the national census on Federal constituencies need be considered here.

Section 43 of the Constitution of the Federation lays down that the House of Representatives shall consist of three hundred and twelve members and section 51 makes provision for constituencies. Subsections (1) and (2) read as follows:-

’51-( 1) Nigeria shall be divided into as many constituencies as there are members of the House of Representatives by virtue of section 43 of this Constitution, and shall be so divided in such manner as the competent authority, acting with the approval of each House of Parliament signified by resolution, may prescribe.

(2) No constituency shall form part of more than one territory and the boundaries of each constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable:

Provided that the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical featu

Other Citation: (1964) LCN/1124(SC)