Abdullahi Haruna & Ors V. Kogi State House of Assembly & Ors (2004)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

The appellants herein, as plaintiffs at the Kogi State High Court of Justice, holden initially, at Obangede and later at Okene, (the court below), took out a writ of summons. The claims endorsed in both the Writ of Summons and the Plaintiffs’ Joint Statement of Claim are as follows:-

“(a) A declaration that the Plaintiffs are the Beneficial Owners of the respective properties situate in various locations in Lokoja, Kogi State, individually purchased from the 4th Defendant sometime in the Year 2000.

(b) A declaration that the respective Certificates of Occupancy granted and issued by the 3rd Defendant to each of the Plaintiffs covering their respective properties purchased from the 4th Defendant in the 2000 were properly issued, valid and subsisting.

(c) A perpetual injunction restraining the Defendants by themselves, their servants, agents, privies or any person howsoever called acting on their behalf from tampering with, revoking, inquiring into or interfering with the quiet enjoyment by the Plaintiffs of their said respective tittles in their respective properties.

(d) Twenty Million Naira (N20,000,000.00) only being damages for the embarrassment, agony and pain caused the plaintiffs by the unnecessary publication by the 2nd Defendants Committee on Works and Housing on Kogi State Radio and Nigeria Television Authority Lokoja the Committee’s invitation to the Plaintiffs to appear before it on 3rd September, 2003.”

On the 10th day of September 2003, Prince B. S. Ikani, Hon. A-G Kogi State filed a Notice of Conditional Appearance on behalf of the defendants who are now respondents in this appeal. My observation has shown that there was no Statement of Defence filed by any of the defendants. Several interlocutory matters were taken and decided by the court below. Among such matters was a Notice of Preliminary Objection to the competence of the suit before the learned trial judge. The preliminary objection was argued by the respective parties on 19/11/03. Ruling was reserved and indeed delivered on 21/11/2003. The learned trial judge found the suit incompetent. He declined jurisdiction and sustained the preliminary objection of the learned A-G of Kogi State.

The plaintiffs were aggrieved with that decision and appealed to this court on five grounds of appeal as set out in the Notice of Appeal.

I think, for a clearer picture of the whole case, it is pertinent to recast in full the background facts giving rise to this appeal as contained in the printed record of the appeal placed before this court. The plaintiffs averred in their pleadings that they are Nigerians of Kogi State origin and held various political offices in Kogi State between 29th May, 1999 and 28th May, 2003. The 1st defendant is the body responsible for making laws in Kogi State while the 2nd defendant is the head of the 1st defendant. The 3rd defendant is the Governor of Kogi State responsible for the administration of Kogi State while the 4th defendant is the Kogi State Government. The 5th defendant is the Chief Law Officer for Kogi State while the 6th defendant is the Commissioner responsible for land administration and the physical development of Kogi State.

The plaintiffs averred that while in the service of the 4th defendant, they were all allocated official quarters to accommodate them at Prince Abubakar Audu Housing Estate and old GRA in Lokoja. After the inauguration of Civilian Administration on 29th May 1999, the Federal Government of Nigeria requested the Revenue Mobilization Allocation Fiscal Commission to determine the remuneration payable to political and public office holders in Nigeria. Each State of the Federation was represented on the Commission with Dr. Farouk Abdul Azeez representing Kogi State. The report by the Revenue Mobilization Allocation Fiscal Commission on the remuneration package for the Executive, Legislature and Judiciary was submitted to each State of the Federation by their respective representative. Dr. AbdulAzeez submitted Kogi State report to the 3rd respondent. The 4th respondent, after detailed study of the said report decided to adopt same for implementation in Kogi State. A bill to that effect was passed into law by the 1st respondent and assented to by the 3rd respondent in the year 2000. Among the policies for implementation in the report only six principal officers of the State Government were to be provided with official accommodation due to the sensitive nature of their assignments to wit: the Governor, the Deputy Governor, the Speaker of the House of Assembly, Deputy Speaker of the House of Assembly, the Chief Judge of the State and the Grand Kadi. All other Government quarters were to be considered excess and sold, and in the case of sale, the occupants of the houses were to be given an option of refusal. The 4th respondent, in accordance to that policy, offered to sell houses to the appellants at various sums of money either at Prince Abubakar Audu housing Estate or GRA in Lokoja and the appellants averred that they had accepted the offers. The term of the sale was for either outright down payment or for instalmental payment of the purchase price of a period of fifteen years at monthly payments to the 4th respondent until the purchase price was fully liquidated. Appellants averred further that they entered into a sale agreement with the 4th respondent’ in respect of each of the respective houses sold to them. Further terms of the contract of sale were that the appellants were to be issued with certificate of Occupancy upon payment of at least 25% of the purchase price to the 4th respondent. Appellants claimed that all of them paid the 25% deposit after which Rights of Occupancy were issued to them by the 4th respondent in respect of each of their houses.

The appellants averred further that while in the service of the 4th respondent between 1999 and 29th May 2003, they were entitled to certain arrears of salaries, allowances and other fringe benefits which the appellants requested the 4th respondent not to pay them but commute towards payment for their houses. It is the appellants’ averment that in accordance with the monetization policy of Kogi State, the 4th Republic legislative quarters located on Lokoja-Okene Road, were sold to all former members of the 1st respondent at the cost of N2.5m and the money was to be paid within a period of some years.

Sometime on 28th of August, 2003, the appellants received letters from the 1st respondent’s Committee on Works and Housing requesting them to appear before the Committee. On 29th September, 2003, the Chairman of the 1st respondent’s Committee on Works and Housing Chief Rinde Asagu addressed a World Press Conference which was reported in Tribune of Tuesday 2nd September 2003 and concluded the plaintiffs acquired their properties illegally and that they will use every step to recover same. Appellants claimed that all of them had paid more than 55% of the purchase price and had not defaulted in their monthly instalmental payments and that their salaries were being deducted from the date of the initial deposit up to the end of their tenure with the 4th respondent on 29th May, 2003. The 4th respondent through Kogi Investment and Properties Limited maintains a ledger for the purpose of recording appellants’ payments. Further, appellants claimed that they were entitled to leave allowance for a period of 4 years in lieu of going on leave which was commuted to further payment for the houses. Further, they were entitled to severance gratuity at the end of their tenure in office which allowance was also converted as further payment for their respective houses. Appellants averred that the 1st and 2nd respondents had concluded arrangements to recommend the revocation of appellants’ Certificates of occupancy to the 3rd and 6th Respondents and will thereafter urge the 3rd respondent to revoke same in public interest. Hence, appellants made the above claims as aforesaid, against the respondents.

In this court, parties filed and exchanged briefs of argument. In his brief, Mr. Ayodele, learned SAN for the appellants formulated two issues for the determination of this court. These issues are as follows –

“(i) Whether the claim of the Plaintiffs/Appellants as constituted discloses a reasonable cause of action.

(ii) Whether the claim of the plaintiffs as couched encroaches upon the doctrine of separation of powers as enshrined in the Constitution and constitutes an attempt to take away the constitutional and statutory powers of the 3rd Defendant to revoke a Certificate of Occupancy.”

In a joint brief of argument filed on behalf of the respondents by Prince Ikani, Attorney-General, Kogi State, one issue was formulated for our consideration, viz:

“Whether the Suit of the appellants as presently constituted is competent having regard to the statutory and constitutional powers of the 3rd respondent (Governor) and the application of the doctrine or principle of separation of powers,”

I prefer to adopt the lone issue formulated by the learned A-G Kogi State, as it appears comprehensive enough, taking into consideration the two issues formulated by Mr. Ayodele SAN.

Mr. Ayodele SAN, submitted, after defining what constitutes a cause of action, that it is when the plaintiff’s claim does not disclose any legal premises upon which his claim is premised or based, then the claim can be said to disclose no reasonable cause of action. Learned SAN argued that it is by cumulative reading of the whole joint statement of claim particularly paragraphs 10-28 that will show the basis, premises and indeed the rationale for the plaintiffs’ claim. Learned SAN submitted further that from the said averments of the joint statement of claim, the facts therein show that there is a contractual obligation for which consideration had passed between the plaintiffs and the defendants. Further, the deduction of various sums of money owed to the plaintiffs by the 3rd defendant; the claim that these deductions represent payment of the cost of the houses; the sudden volte face of the 4th defendant and the use of the press by the 1st and 2nd defendants to claim that the houses were illegally acquired by the plaintiffs and that threat to use the office of the 3rd defendant to revoke the Certificates of Occupancy already issued to the plaintiffs, are sufficient causes for which the plaintiffs could seek a remedy in the courts. The learned SAN submitted that the averment in paragraph 30 of the joint statement of claim, explains sufficiently, why the consequential relief in paragraph 31(c) of the joint statement of claim was being sought. The claims in paragraph 31(a) and (b) are declaratory reliefs. Declaratory reliefs, stated the learned SAN,are substantive claims in themselves and are a remedy for a great variety of circumstances. He cited and relied on the case of SUNDAY EGUAMWENSE V. JAMES I. AMAGHIZEMWEN (1993) 9 NWLR (Pt. 315) 1 at page 20. The main reliefs claimed by the plaintiffs, according to the learned SAN are those shown in paragraph 31 (a) and (b). It cannot therefore be argued that the claims in paragraphs 31 (a) and (b) of the joint statement of claim are not original remedies to which the ancillary relief in paragraph 31(c) is attached. Reference was made to the cases of COMBINEDTRADE LTD V. ALL STATES TRUST BANK LTD & ANR (1998) 12 NWLR (Pt.376) 56 at 63; JULIUS BERGER NIGERIA PLC V. R.I. OMOGUI (2001) 15 NWLR (Pt. 736) 401 at 417-419; EGBA V. ADEFARASIN (NO.2) (1987) 1 NWLR (pt. 47) 1 at page 20, among others. A careful examination of the principles stated in the above decisions will show clearly that the aggregate of the bundle of facts in the case of the plaintiffs reveals a cause of complaint against the defendants and the case before the lower court ought not to have been struck out as being incompetent.

On the issue that the claim in paragraph 31(c) of the joint statement of claim is not justiciable and is in breach of the statutory and constitutional powers of the 3rd respondent as a Governor and the doctrine of separation of powers, the learned SAN, argued that it would appear that this issue is the core issue that led the learned trial judge to reach the conclusion that the court lacked jurisdiction to determine the claim of the plaintiffs. The learned trial judge, he submitted, misconstrued the claim of the plaintiffs as the claim was not restricted to the 3rd defendant alone and it was not restricted to the power of revocation. Learned SAN argued that other defendants can be restrained by the court.

In relation to the 3rd defendant’s power of revocation, the learned SAN adverted his mind to Section 28 of the Land use Act and Section 44(1) of the Constitution, 1999. Learned Senior Counsel quoted the sections comprehensively. Argued further for the appellants is that the powers of the Governor provided in Section 28 of the Land Use Act and the one provided in Section 44 (1) of the Constitution can be questioned in a court of law and the Governor can be restrained unless it can be shown that he has satisfied the provisions of the Land Use Act and the Constitution. The Court has the jurisdiction to deal with the issue of restraining the 3rd defendant from exercising his powers of revocation in the light of the averments in paragraphs 10 to 28 of the Statement of Claim.

The appellants’ claim as per paragraph 31(c) and other subparagraphs of 31(c) are justiciable. The Land Use Act is not a statute that ousts the jurisdiction of the courts to adjudicate in land matters including issuance or revocation of a statutory right of occupancy. ALH. KARMIN ADISA V. EMMANUEL OYINWOLA & 4 ORS (2000) 10 NWLR (Pt. 116) at 175 was referred to. Again, Sections 272(1) and 6(6) of the Constitution provide for access to the courts by persons whose rights have been infringed. Finally, the learned SAN submitted on the infringement of the doctrine of separation of power that the claim in paragraph 31(c) of the appellants’ joint statement of claim is not an infringement on the doctrine of separation of power as it is justiciable. He urged this court to allow his appeal, set aside the order striking out the suit of the plaintiffs in the court below and order the suit to be placed on the court’s cause list.

In his submission on the lone issue, learned A-G Kogi State for the respondents stated that there was no dispute as to whether the appellants enjoyed presumption of valid rights over the properties in question by virtue of their possession of the Certificates of Occupancy. He relied on the case of TERIOLA V. OLUHUNKUN (1994) 4 SCNJ, 92. But the main thrust of the appellant’s contention is that the respondents (especially the 3rd respondent) should be prevented from revoking the Certificates of Occupancy granted to them. The Learned A-G submitted that the appellants are not challenging the revocation of the Certificates of Occupancy granted them but asking the court to prevent the revocation by the 3rd respondent irrespective of statutory powers that may have been conferred by law or instrument. This makes the appellants’ suit to be incompetent for it discloses no reasonable cause of action, and it would foist on the court to prevent the doing of an act notwithstanding the fact that there is the constitutional or statutory power to do such an act. The legal point misconceived by the appellants is not whether there is no contractual obligation between the parties but the question is what will become the status of the contractual obligation in the face of the 3rd respondent altering the position by exercising his constitutional powers in accordance with the law. Learned A-G submitted that relief 31(c) of the appellants claim is the kernel upon which other reliefs revolve as it relates to an order of perpetual injunction against the respondents, especially the 3rd respondent from tampering with their respective properties. The reliefs sought by the appellants are so closely knitted and indivisible and the ancillary reliefs are stronger. The cases of TUKUR V. TARABA STATE (1997) 6 SCNJ 81 at page 115; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 543, were relied upon. It was argued for the respondents that the Governor, 3rd respondent, has the constitutional power to revoke a statutory right of occupancy for overriding public interest or if the land is required for public purpose. Sections 28 of the Land Use Act, cap 202, LFN, 1990 was cited. The Governor is empowered also to acquire property compulsorily for public purposes. 3rd respondent’s power to revoke cannot be taken away by the court in view of what section 315(5) of the 1999 Constitution provides.

Learned A-G argued that Section 28 of the Land Use Act has not ousted the jurisdiction of the court as the section states the power of a Governor to revoke a right of occupancy. He cited and relied on the cases of MERCHANT BANK V. FEDERAL MINISTRY OF FINANCE (1961) All NLR 623; ROBERT C. OKAFOR & SONS V. A-G ANAMBRA & 4 ORS (1992) 2 SCNJ (PT.11) 219 AT 234.

Further, it is only the 3rd respondent who has the power of revocation, other respondents have no such power. The appellants claims as presently constituted is an invitation to the courts to encroach on the doctrine of separation of powers whereas the functions of each organ of government are spelt out in the constitution and no one should exercise the functions of the other. Sections 4, 5 and 6 of the 1999 Constitution were cited. Decided authorities such as A-G ABIA STATE V. A-G OF THE FEDERATION & 35 ORS. (2003) 4 NWLR (Pt. 809) 124 at 177 G-H; SENATOR B. C. OKWU V. SENATOR WAYAS (1981) 2 NCLR 4522 were referred to by the learned A-G, Kogi State. He finally urged this court to dismiss the appeal in its entirety.

The genesis of this appeal is the notice of preliminary objection filed and moved by the learned Attorney General, Kogi State. The notice of the objection reads as follows:

“TAKE NOTICE that the defendants shall raise a preliminary objection to the competence of the above named suit on the following grounds:-

a) The Honourable Court lacks jurisdiction to determine the suit.

b) The plaintiff’s claims do not disclose a reasonable cause of action”.

After taking arguments from counsel the Learned Trial Judge held as follows:

“I hold that the plaintiff’s joint claim does not disclose a reasonable cause of action and is therefore incompetent. Being incompetent it is not within the jurisdiction of this court”.

In his reasoning process the Learned Trial Judge observed, inter alia:

“Since relief (C) in paragraph 31 of the joint statement of claim is congenitally bad, it will affect reliefs (a) and (b) which are closely linked with it. It would appear ordinarily, that relief (d) can stand on its own. However, since the plaintiffs claim is indivisible and with relief (c) being the pivot around which the other reliefs reasonably revolve, the incompetence of relief (e) will essentially affect the other reliefs, afortiori the entire suit. The suit as presently constituted, does not disclose a reasonable cause of action and is therefore incompetent, consequently divesting this court of jurisdiction”.

But what is a valid/reasonable cause of action in law? Call it with the appellation you like, whether as a “valid” cause of action, a “competent” cause of action, a “reasonable” cause of action or “cause of action” simplicita, it is that action which connotes every fact which is material to be proved before a competent court of law, to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. Thus, it is the factual base or some factual situation, a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See: Bello V. A. G. – Oyo State (1986) 5NWLR (Pt. 45) 828. Thomas V. Olufosoye (1986) NWLR (Pt. 18) 669; Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 257; Tukur V. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517. Briggs V. Bob – Manuel (1995) 7 NWLR (Pt. 409) 559; lyabi-Ayah V. Ayah (1997) 10 NWLR (Pt.523) 141. Oduko V. Government of Ebonyi State (2004) 13 NWLR (Pt, 891) 487. Afolayan V. Ogunrinde (1990) 1 NWLR (Pt. 127) 369. Akibu V. Oduntan (1992) 2 NWLR (Pt. 222) 210. Owodunni V. Reg. Trustees of C.C.C (2000) 10 NWLR (Pt, 675) 315.

The criteria employed by the courts in determining the existence or non-existence of a cause of action is for the court to consider the writ of summons and the statement of claim. See: Olagunyi V. Yahaya (1998) 3 NWLR 501. Aremo II V. Adekanye (2000) 2 NWLR (644) 257; Elema V. NEPA (2000) 2 NWLR (Pt. 644) 337.

The following rules are deduceable from the above general statement of law:

1. Where a statement of claim discloses some reasonable cause of action on the facts alleged in it, the claim has some chances of success and once it raises some issues of law or fact calling for determination by the court, it cannot be struck out. See: Drummond Jackson V. British Medical Association (1970) 1 W.L.R 688; Wenlock V. Melany (1965) 1 W.L.R 128; Roy V. Prior (1971) A. C. 470. For a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad. See: Tika-Tore Press Ltd V. Umar (1968) 2 All N.L.R 107; Attorney General of the Duchy of Lancaster V. London and North Western Railway (1892) 3 Ch. 274 at 277; Nagle V. Feiden (1966) 2 Q. B 633 at 651.
2. When considering the disclosure of cause of action, it is irrelevant to consider the weakness of the plaintiffs claim. What is always important is to examine the averments in the pleadings and see if they disclose cause of action or raise some questions fit to be decided by a Judge. See: Ogunsanya V. Dada (1992) 4 SCNJ 162 at 169. Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) 376.
3. Another ground upon which a court can rely to strike out a suit before it is where the pleadings/claims of the plaintiff, prima facie, is said to be “vexations” and or “frivolous”, This is where the plaintiff is not seriously intending to prosecute the action but merely trifles with the court. Such an action is usually without any substance; it is groundless or fanciful. It can hardly succeed. For instance, the action for the revocation of letters of administration, many decades after the, grant was held to come under this ground. See: Willis V. Earl Beauchamp (1886) 11. PD 59. Morgan and Ors V. West African Automobile and Engineering Co. Ltd (1971) 1 NMLR, 219. Eleko V. Baddeley and Anor. (1925) 6 NLR 65. at 68
4. Again, where pleadings amount to abuse of process, i.e not made in good faith, it will not be allowed to stand as in such process it is not being used for the purpose it is meant to serve. A claim that is absolutely groundless is an abuse of process of the court. A situation where a defendant is sued where there is not the’ slightest cause of action is an abuse of process of the court. Eleko V. Baddeley and Anor (supra). But an action cannot be an abuse of process when the plaintiff has Locus standi and the Statement of claim discloses a cause of action. See: Adesokan V. Adeogorolu (1997) 3 SCNJ, 1.
5. Further, a pleading/statement of claim that is scandalous in the sense that it alleges matters that are indecent or offensive for the mere purpose of abusing or prejudicing the opposite party, can be struck out by the court. See: Christie V. Christie (1873) LR 8 Ch 499.
6. Where – pleadings tend to prejudice, embarrass or cause delay in trial, it can be struck out as well. It may be embarrassing if it is presented in an unintelligible form for the party to whom it is served. Allegations are not embarrassing because they are inconsistent or are stated in the alternative Bagot v. Easton (1877) 7 Ch 1.

It is only by recasting the claims made by the plaintiffs in their statement of claims against the above well known rules of practice; one can be able to say whether the claims of the appellants disclosed any cause of action.

The claims of the appellants at the lower court read as follows:-

“(31) whereof the plaintiffs claim against the defendants jointly and severally as follows:

a) A declaration that the plaintiffs are the beneficial owners of the respective properties situate in various locations in Lokoja, Kogi State individually purchased from the 4th defendant sometime in the year 2000.

b) A declaration that the respective certificates of occupancy granted and issued by the 3rd defendant to each of the plaintiffs covering their respective properties purchased from the 4th defendant in the year 2000 were properly issued, valid and subsisting.

c) A perpetual injunction restraining the defendants by themselves, their servants, agents, privies or any person howsoever called acting on their behalf from tampering with, revoking, inquiring into or interfering with the quiet enjoyment by the plaintiffs of their said respective titles in their respective properties.

d) Twenty Million Naira (N20,000,000.00) only being damages for the embarrassment, agony and pain caused the plaintiffs by the unnecessary publication by the 2nd defendants committee on works and Housing on Kogi State Radio and Nigeria Television Authority Lokoja, the committees invitation to the plaintiff to appear before it on 3rd September 2003.”

Perusing the joint statement of claim of the appellants, it appears to me that the appellants made vital averments which will require a reply of equal potency, or even greater from the respondents for the matter to be heard properly on its merit. Paragraphs 10 – 28 and 30 of the joint statement of claim state as follows:

“10) Consequent upon paragraph 9 ante, the 4th defendant after detailed study of the said report adopted same for it’s implementation in Kogi State.

11) The plaintiffs state that a Bill for the implementation of the monetization policy was sent to the 1st Defendant and after being duly passed, same was assented to by the then Governor in the year 2000.

12) The plaintiffs state that among the policies for implementation in the report only six principal officers of the state Government were to be provided with official accommodation due to the sensitive nature of their assignments to wit; the Governor, the Deputy Governor, the Speaker of the House of Assembly, Deputy Speaker of the House of Assembly, the Chief Judge of the state and the Grand Khadi.

13) The Plaintiffs further aver that under the monetization policy all other political and public office holders were to receive a monetized value of their allowances in lieu of same being provided by Government.

14) Upon provision of accommodation to the officers mentioned in paragraph 12 all other Government quarters are to be considered excess and sold and in the case of sale, the Occupants of the house are to be given a first option of refusal.

15) The plaintiffs state that the 4th defendant offered to sell houses to them at various sums of money either at Prince Abubakar Audu Housing Estate or G.R.A in Lokoja and the plaintiffs accepted the said offers. The plaintiffs shall found

and rely on both the offer and acceptance letters at the hearing of this suit.

16) Further to paragraph 15 above, the term of the sale was for either outright down payment or for install mental payment of the purchase price for a period of fifteen years at monthly payments to the 4th Defendant until the purchase price is fully liquidated.

17) Further to paragraph 14, 15 and 16 ante, the 4th Defendant entered into a sale agreement with the plaintiffs in respect of each of the respective houses sold to them. The plaintiffs shall found and rely on the sale agreement at the hearing of this suit.

18) The plaintiffs state that among the terms of the contract of sale, the plaintiffs were to be issued with Certificates of Occupancy upon payment of at least 25% of the purchase price to the 4th Defendant.

19) The plaintiffs state that all of them paid the 25% deposit after which Rights of Occupancy and Certificates of Occupancy were issued to them by the 4th Defendant in respect of each of their houses. The plaintiffs shall found and rely on the said certificates of occupancy at the hearing of this suit.

20) The plaintiffs further aver that while in the service of the 4th defendant between 1999 and 29th May 2003, they were entitled to certain arrears of salaries allowances and other fringe benefits, which the plaintiffs requested the 4th defendant not to pay them but commute towards payment for their houses. The plaintiffs shall found and rely on the receipts of the payments of such allowances at the hearing of this suit.

21) The plaintiffs further aver that in accordance with the monetization policy of Kogi State, the 4th Republic legislative quarters located on Lokoja – Okene road, were sold to all former members of the 1st defendant at the cost of N2.5m and the money was to be paid within a period of some years.

22) The plaintiffs say that sometime on the 28th day of August 2003, they received letters from the 1st defendant’s committee on Works and Housing requesting them to appear before the committee.

23) The plaintiffs further aver that sometime on 29th September 2003, the chairman of the 1st defendant committee on Works and Housing Chief Rinde Asagu addressed a world press conference which was reported in Tribune of Tuesday 2nd September 2003 and concluded that the plaintiffs acquired their properties illegally and that they will use every step to recover same. The plaintiffs shall rely on the said Newspaper publication at the hearing of this suit.

24) The plaintiffs state that all of them have paid more that 55% of the purchase price and have not defaulted in their monthly instalmental payment.

25) Further to paragraph 24, the plaintiff’s salaries were being deducted from the date of the initial deposit up to the end of their tenure with the 4th defendant on 29th May 2003.

26) The plaintiffs further state that the 4th defendant through Kogi Investment and Properties Limited maintains a ledger for the purpose of recording their payments. The plaintiffs hereby give notice to the defendants to produce the ledger at the hearing of this suit.

27) The plaintiffs state that they were entitled to leave allowance for a period of 4 years in lieu of going on leave which was commuted to further payment for the houses. The plaintiffs shall found and rely on the receipts at the hearing of this suit and shall rely on the said ledger at the hearing.

28) The plaintiffs aver that they were entitled to severance gratuity at the end of their tenure in office which allowance was also converted as further payment for their respective houses instead of cash. The plaintiffs shall found and rely on the receipt of payment at the hearing of this suit.

30) Further to the above paragraphs, the plaintiffs aver that the 1st and 2nd defendants have concluded arrangements to recommend the revocation of the plaintiff’s certificate of occupancy to the 3rd and 6th defendants and will thereafter urge the 3rd defendant to revoke same in public interest.”

I think these averments provide the basis, premises and indeed rationale for the appellants claim. None of such claims can be said to be frivolous or vexations; none is an abuse of process of the court and none is scandalous or offensive. It is my humble view that there was no basis for the Learned Trial Judge to have struck out the suit before him, without giving the parties due hearing on the merit. I think it is trite that any party who desires judgment to be given in his favour as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. See: Section 135(1) of the Evidence Act, Cap 122, Laws of Federation of Nigeria 1990; A-G Federation V. A-G Abia State (No.2) (2002) 6 NWLR (Pt.764) 542 at 742 F.G. That is the more reason why the matter should not have been truncated before its hearing on the merit. The appellants should have been allowed the opportunity to prove what they assert in their pleadings. To hold the contention as submitted by the learned Attorney General for the respondents that the factual situation as presented by the appellants in their claims is to foist on the court to prevent the doing of an act not withstanding the fact that there is the constitutional or statutory power to do such, an act, is to me, making the court to be a rubber-stamp. The primary function of the courts is to do justice between parties irrespective of whoever is involved.

The court in this case should have been allowed to determine whether the constitutional or statutory role conferred by the constitution or any statute in question, has been carried out satisfactorily by the 3rd respondent in accordance with the stipulations of the constitution or statute under reference. In matters involving the exercise of statutory administrative power, the function of the courts, I believe, begins only if and when it is alleged that the powers have not been exercised in accordance with the provisions of the statute creating them. See: Merchant Bank Ltd V. Federal Minister of Finance (1961) All NLR, 598. Osho V. Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157. In any event the claims made by the appellants were not directed against the 3rd respondent alone, it included other parties mentioned in the suit. There is no better way of arriving at the Justice of the suit except when same is subjected to the rigour of legal examinations analysis and inferences or conclusions by a court of competent jurisdiction. And a court is said to be of competent jurisdiction when all the conditions precedent for its having jurisdiction are fulfilled. It is competent when:-

a) It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another.

b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising it’s jurisdiction; and

c) The case before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See: Madukolu V. Nkemdilim (1962) 2 SCNLR 341.

The trial court was not alleged to have lacked any of the above requirements; it ought to have gone ahead to consider the suit on its merit.

On the issue of the doctrine of separation of powers postulated by the learned Attorney General for the respondents, I do not think that the Attorney General meant to say that there must exist a water-tight compartmentalization between the two arms of Government, i.e the executive and the judiciary. That would certainly amount to an anti-thesis of the whole doctrine as one must checkmate the others excesses.

It is true that the primary duty of the court is to the constitution and law, which it must apply impartially, without fear, favour and prejudice. Where the constitutionality of a state policy is challenged, the court must make a finding as to whether the making and execution of the policy is consistent with the constitution. Where the court makes a finding of unconstitutionality, it is constitutionally obligated to so declare and it would not matter that in doing so the court intrudes in the domain of the executive. See: Minister of Health V. Treatment Action Campaign (2003) CHR 155 at page 206 F – G.

It may well be that in some countries redress against administrative wrongs is normally obtainable only within the administrative hierarchy itself. But most legal systems, including our own demarcate sets of relationships between the governors and the governed, and areas of administrative activity, in which claims and controversies may be resolved and grievances redressed through the medium of courts. If appellants as in this case are denied access to the court to challenge the action of government, particularly 3rd respondent, then where do they lay their complaints? I am sure the doctrine of separation of power has for quite long been carefully worked out to allow the three arms to check one another without necessarily usurping the powers of the other. I do not think the trial court would be encroaching on the duties of the 3rd respondent by looking at the propriety or otherwise of the 3rd respondent’s action.

In the final result this appeal succeeds and it is herby allowed. Accordingly, the trial courts order made in its ruling delivered on 21st November, 2003, striking out the suit before it is hereby set aside. In its place, I hereby order that another Judge apart from Olusiyi, J, place the suit on the court’s list for a fresh hearing. The appellants are entitled to N10,000.00 costs from the respondents.

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Other Citations: (2004)LCN/1657(CA)