J. O. Amawo & Anor Vs Attorney-general North Central State & 2 Ors (1973)

LawGlobal-Hub Lead Judgment Report

COKER, JSC. 

This appeal is against the ruling of Bello S.P.J. (High Court, Kaduna, North-Central State) in Suit No. NCH/3111972 by which the plaintiffs’ claim against the present 3rd defendant, Alhaji Tijani Hashim, was dismissed with costs. In the action instituted by the plaintiffs (now appellants) the writ was endorsed as follows:-

“The plaintiffs’ claim against the defendants, jointly and in the alternative is for a declaration of this Honourable Court that the certificate of occupancy No. 14468 granted to Alhaji Tijani Hashim is null and void and of not effect whatsoever in the law in so far as it relates to Plot M4, Ahmadu Bello Way which is covered by a certificate of occupancy No. 3380 of 13th April, 1933.”

The plaintiffs in the action were
(i) J. O. AMAWO;

(ii) Mrs V. E. ALAKA.

They are the present appellants before us; the respondents before us are the defendants to the action, and they are-

(i) THE ATTORNEY-GENERAL, NORTH-CENTRAL STATE;
(ii) THE ADMINISTRATOR, KADUNA, CAPITAL TERRITORY;
(iii) ALHAJI TIJANI HASHIM.

Soon after the writ was filed in court and the action entered the plaintiffs filed an application in the court asking for an interim injunction to restrain “the 3rd defendant/respondent by himself, his agents and/or servants or otherwise from entering on the land and building in dispute”. The motion was fully argued on both sides and eventually dismissed by the court. Later learned counsel on behalf of the 1st and the 2nd defendants, i.e. the Attorney-General and the Administrator of Kaduna Capital Territory, filed a motion for an order “under Order 28 of the old Supreme Court Rules (applicable in the North-Central State) to dismiss the action and for such further or other order as this honourable court deem fit.”

The application was supported by an affidavit stating that the 1st defendant as Attorney-General represents the government of the North-Central State and that the 2nd defendant is the Kaduna Local Authority, that the provisions of the Petitions of Right Law, Cap. 95 have not been complied with and that no statutory notices of the intention to commence the proceedings had been served on those defendants.

That motion was dated the 1st of July, 1972; on the 5th of July, 1972 another motion was filed on behalf of the 3rd defendant, Alhaji Tijani Hashim, asking for an order that this matter be dismissed as “it is sub judice an abuse of the process of the court, vexatious and scandalous and for further order or orders as this court may deem fit to make under the circumstance. ” This application was accompanied by an affidavit sworn to by Mr Dahiru Musdapher a legal practitioner of Kano and it contains a number of facts concerning a previous litigation between one of the plaintiffs and the present 3rd defendant and indeed attaching as an exhibit to the said affidavit a copy of the statement of defence which the present 1st plaintiff had filed as a defendant to that action.

Both motions were eventually argued together and the motion on behalf of the Attorney-General was dismissed. Up to the time that the motions were argued no order for pleadings was sought or made and it is obvious that the facts canvassed in and by the several applications were based on the affidavits before the court. There is no appeal before us against the dismissal of the application by the 1st and 2nd defendants but we must observe that Order 28 of the old Supreme Court Rules under which that application was brought postulates that there should have been filed a statement of claim on behalf of the plaintiff or plaintiffs before the Order can apply. Order 28 of the Supreme Court Rules provides as follows:-

“ORDER XXV111
DISMISSAL OF SUIT ON GROUNDS OF LAW

1. Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

2. For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations and no evidence respecting matters of fact, and no discussion of questions of facts, shall be allowed.