Attorney-general Of The Federation V. Attorney-general Of Abia State & Ors (2001) LLJR-SC

Attorney-general Of The Federation V. Attorney-general Of Abia State & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

Pursuant to the provisions of Order 3 rule 3 of the Supreme Court Rules, 1985, the Attorney-General of the Federation filed a statement of claim in this court in order to commence proceedings in the original jurisdiction of this court under section 232 of the Constitution of the Federal Republic of Nigeria 1999, against the thirty six Attorneys-General of all the States of the Federal Republic of Nigeria. The statement of claim avers as follows:-

1. The plaintiff is the Attorney-General of the Federation and brings this action as the representative of the Government of the Federal Republic of Nigeria.
2. The 1st to the 36th defendants are the Attorneys-General of each of the 36 States which along with the Federal Capital Territory Abuja, comprise the Federal Republic of Nigeria. Each defendant is sued as the representative of the Government of each state.

3.Section 162(1) of the Constitution of the Federal Republic of Nigeria, 1999 (hereafter referred to as “the Constitution”) provides that the Federation shall maintain a special account to be called” the Federation Account” into which shall be paid all revenue subject to certain exceptions which are not material to this case collected by the Federation.

4. Pursuant to the provisions in section 162(2) of the Constitution and subject to certain conditions therein specified, the President of the Federal Republic of Nigeria is required to table before the National Assembly proposals for revenue allocation.
5. By a proviso to the aforementioned section 162(2) of the Constitution, the principle of derivation must be reflected in any approved formula for revenue allocation.
6. The plaintiff states that in the con of section 162(2) of the Constitution the expression “principle of derivation” means the principle that revenue accruing to the Federation Account from any natural resources shall be deemed to have been derived from the State or territory where such resources are located.
7. The plaintiff further states that the proviso to section 162(2) of the Constitution requires that any approved formula for revenue allocation from the Federation Account shall reflect the fact that not less than 13% of revenue accruing to the said federation account from any natural resources are allocated to the Government of the State or territory where such resources are located.
8. By reason of the facts pleaded in paragraphs 5, 6 and 7 of this statement of claim, the plaintiff states that for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from any State or territory pursuant to the proviso to section 162 of the Constitution:-

(a) The natural resources located within the boundaries of any State are deemed to be derived from that state;

(b) In the case of the littoral States comprised in the Federal Republic of Nigeria (i.e. the States of Akwa-Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers) the Seaward boundary of each of the said States is the low water mark of the land surface thereof or (if the case so requires) the seaward limits of inland waters within the State;

(c) The natural resources located within the territorial waters of Nigeria and the Federal Capital Territory are deemed to be derived from the Federation and not from any State;

(d) The natural resources located within the Exclusive Economic Zone and the Continental Shelf of Nigeria are subject to the provisions of any treaty or other written agreement between Nigeria and any neighbouring littoral foreign State, derived from the federation and not from any State.

9. In further support of the averments in paragraph 8 of this statement of claim the plaintiff will contend at the trial of this action that under the provisions contained in the Constitution it is only the Federal Government of Nigeria and not the Government of any of the States comprised in the Federal Republic of Nigeria that has power to:-

(i) exercise legislative, executive, or judicial powers over the entire area designated as the “territorial waters of Nigeria” pursuant to the provisions of the Territorial Waters Act, Cap. 428, Laws of the Federation of Nigeria 1990, as amended.

(ii) exercise any of the sovereign rights exercisable by Nigeria over the entire area designated as the “Exclusive Economic Zone” pursuant to the provisions of the Exclusive Economic Zone Act, Cap. 110, Laws of the Federation of Nigeria, as amended.

10. The States of Akwa-Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers dispute the averment of the Federal Government of Nigeria as pleaded in paragraph 8 hereof and claim that natural resources located offshore ought to be treated or regarded as located within their respective States.

WHEREUPON the plaintiff claims:-

A determination by this Honourable court of the seaward boundary of a Littoral State within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from the State pursuant to the proviso to section 162(2) of the Constitution of the Federal Republic of Nigeria, 1999.”

All the defendants except the 29th and 30th have filed statements of defence.

Eleven out of the 36 defendants have raised preliminary objections in their statements of defence challenging the jurisdiction of this court to hear the suit. These are the 1st, 3rd, 4th, 6th 9th, 10th, 11th, 12th, 27th, 28th, and 32nd defendants. The grounds of the preliminary objections varied. They however include the following:-

(1) That the suit is academic, frivolous, vexatious and speculative;

(2) That the non-littoral States are not parties to the suit and ought to be struck out,

(3) That the original jurisdiction conferred on the Supreme Court does not extend to the realm of International Law;

(4) That the Supreme Court has no jurisdiction to entertain the plaintiffs claim or grant the reliefs sought as the Constitution vests the power upon the National Assembly only to determine the formula for revenue allocation including allocation on the basis of principle of derivation;

(5) That the plaintiff’s claim for the Supreme Court to determine the boundary of the littoral States is not justiciable since the Court has no jurisdiction to determine State boundaries.

(6) That the plaintiff’s action does not disclose a reasonable cause of action.

(7) That the plaintiffs claim does not establish the existence of a valid dispute whether of law or fact; nor disclose the existence or extent of a legal right.

(8) That the plaintiff lacks the locus standi to bring the action.

(9) That the suit raises political question and is an abuse of judicial process

(10) That the action is not properly constituted and is incurably defective on grounds of mis-joinder of non-littoral States in the suit;

(11) That the Supreme Court lacks the jurisdiction to grant the relief sought and to interpret section 162 subsection (2) of the Constitution including the proviso thereof:

(12) That the action is premature as the President of the Federal Republic of Nigeria has not yet tabled any proposal for revenue allocation before the National Assembly in accordance with section 162 subsection (2) of the Constitution;

(13) That delimitation, demarcation or adjustment of boundaries between States is the responsibility of the Executive or the Legislature;

(14) That it is not proper for the plaintiff to start the action by filing a statement of claim instead of issuing an originating summons;

(15) That there is no legislation the interpretation of which will enable the Supreme Court determine the Seaward boundary of littoral States; and

(16) That any determination of the seaward boundary of a Littoral State is tantamount to the Supreme Court delimiting the international maritime boundary of the Federal Republic of Nigeria, which is beyond the juridical competence of the court.

On the 9th April, 2001 when the case came up for mention, we directed the parties to each file brief of argument in respect of the grounds of their preliminary objection and the plaintiff to file one brief of argument in reply to all the eleven defendants’ briefs. This has been done. At the hearing of the objections, all the parties adopted the arguments in their briefs. With the exception of the 4th and 12th defendants, learned counsel also argued orally in expatiation of the briefs.

I intend to deal with all the grounds of objection under the following headings-

JURISDICTION

Learned counsel for the eleven defendants have argued that the provisions of section 232 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as “the Constitution”) require that there must be a dispute between the Federation and the States before this court can exercise its original jurisdiction. They argued further that the dispute must involve any question of law or facts on which the existence or extent of a legal right depends. That there is no dispute apparent from the statement of claim to justify this action. The court, therefore, lacks the jurisdiction to hear the case.

The plaintiff contends that in determining whether this court has the jurisdiction to hear the case it needs to look at the statement of claim and the relief sought by it only, as laid down by the decision of this court in Adeyemi v. Opeyori (1976) 9 & 10 SC 31 at pt. 464 per Idighe, JSC and Izenkwe v. Nnadozie, (1953) 14 WACA 361. He stated that the dispute or controversy which brought about the action relates to the discharge by the President of the Federal Republic of Nigeria of his responsibilities under section 162 of the Constitution. That paragraphs 6 and 7 of the statement of claim touch on the principle of derivation under section 162 subsection (2) of the Constitution. That the action is necessary mainly because there is a very serious dispute between the Federal Government and some of the State Governments as to the seaward boundary of the States which are by the sea. This in turn creates a controversy as to whether natural resources located offshore of the Nigerian coastal belt must be treated as Federal or belonging to the littoral States. It is submitted that paragraphs 8 and 10 of the statement of claim read together establish the dispute between the Federal Government and the States which challenge the jurisdiction of the court on the ground that there is no dispute.

Now section 232 subsection (1) of the Constitution provides:-

“232(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States 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.”

It follows, therefore, that for this court to exercise its original jurisdiction in a civil case between the Federation and State(s) or between States, there must be-

(a) a dispute between the Federation and a State or States;

(b) the dispute must involve a question of law or fact or both; and

(c) the dispute must pertain to the existence or extent of a legal right.

What constitutes a dispute under section 212 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979, which has exactly the same provisions as section 232 subsection (1) in question had been considered by this court in the cases of Attorney-General of Bendel State v, Attorney-General of the Federation & 22 Ors. (1982) 3 NCLR 1; (1981) 10 SC 1 and A.-G, of the Federation v. A.-G of lmo State & 2 Ors (1983) 1 SCNLR 239; (1983) 4 NCLR 178. In Attorney-General of Bendel State’s Case. Bello. JSC (as he then was) stated as follows on pp. 48 to 49 thereof.

“To invoke the original jurisdiction of this court there must be a dispute as so qualified between the Federation and a State or between States.

The issue of jurisdiction was contested on three grounds. Firstly, that there is no dispute which affected the interest of the Federation and Bendel State between the plaintiff (Bendel State) and the Federation. Secondly ……

I think the first point may be easily disposed of from the definition of the Word “dispute”, The Oxford Universal Dictionary defines it as ‘the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion …”

I also held as follows on p. 320 thereof:-

“It is well established principle of the interpretation of constitution that the words of a constitution are not to be read with stultifying narrowness – United States v. Classic” 313 US 299 and Nafiu Rabiu v. Kano State (1981) 2 NCLR 293; (1980) 8-11 SC 130 at pp. 148-149. The word ‘dispute’ in section 212 (1) should therefore be given such meaning that will effectuate rather than defeat the purpose of that section of the Constitution. Webster’s new twentieth century dictionary, 2nd edition, provides that ‘dispute” is synonymous with controversy, quarrel, argument, disagreement and contention.”

It is clear that paragraph 10 of the statement of defence in this case, which is quoted above, has expressly averred that there is a dispute or controversy between the plaintiff and the 3rd, 6th, 9th, 10th, 24th, 27th and 28th defendants on the facts averred in paragraph 8 of the statement of claim. By the decision of this court in the case of Adeyemi v. Opeyori, (supra) those averments are to be taken as true exfacie for the purpose of the present exercise. I am, therefore, satisfied that there is a dispute between the plaintiff and the littoral States as defendants in this case.

The next question is: whether the dispute involves a question of law or fact or both The preliminary objectors have variously argued that the plaintiff’s claim has not established the existence of a valid dispute whether of law or fact nor disclosed the existence or extent of a legal right.

The dispute, as stated in the statement of claim concerns the sharing of “Federation Account” based on the principle of derivation as provided under section 162 subsection (2) of the Constitution. It in fact involves interpretation of the Constitution (i.e. section 162(2) to determine who benefits or shares in the allocation of revenue accruing from the natural resources located offshore the coastal area of Nigeria. In my opinion, the dispute involves at least a question of law, (if not fact), which is the interpretation of section 162 subsection (2) of the Constitution, in particular the proviso thereof which directly affects the littoral States and indirectly the non-littoral States.

The last question is: whether the dispute pertains to the existence or extent of a legal right The short answer to this is provided by the dictum of Bello, JSC in the case of A-G of Bendel State v. A-G. of the Federation & 22 Ors. (supra) at p. 50 thereof viz:-

“It is clear from the two sections (of the 1979 Constitution) that the plaintiff has a constitutional right to a portion of any amount standing to the credit of the Federation Account. It follows therefore, that the dispute between the plaintiff (Bendel State) and the Federation involves a question on which the extent of a constitutional right of the plaintiff depends. I do not think any authority is required to say that constitutional right is a legal right within the purview of section 212 of the (1979) Constitution.” (interpolation mine for clarity). ”

The next point on jurisdiction is that this court has no jurisdiction to entertain the plaintiff’s claim or grant the relief sought or to interpret section 162 (2) of the Constitution including the proviso thereof because the dispute is non-justiciable.

As has been shown above, section 232(1) of the Constitution vests the court with the jurisdiction to determine any dispute between the Federation and the States.

In addition, section 6(1) of the Constitution vests in the Supreme Court the judicial powers of the Federation and subsection (6) thereof provides that the powers vested-

“(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

These provisions clearly show that this court has the jurisdiction to interpret not only the provisions of section 162 subsection (2) but also all the other provisions of the Constitution whether on appeal or in exercise of its original jurisdiction under section 232 subsection (1). The dispute in the present case, as shown above, involves at least the interpretation of section 162 subsection (2) of the Constitution. Surely, that is a justiciable issue, apart from anything else being claimed by the plaintiff. The fact that the other issues might not be justiciable, which is arguable cannot deny the court the jurisdiction to interpret section 162 subsection (2) of the Constitution. Any issue which calls for the interpretation of the Constitution is obviously justiciable unless otherwise provided by the Constitution. The end result of the interpretation may not entitle the plaintiff to the relief sought but then that is another matter; and it is not a ground to contend that the claim is not justiciable or that the court lacks the jurisdiction to hear the case.

Mis-joinder of Parties

It has been canvassed that the 28 non-littoral States joined by the plaintiff in the action are wrongly joined since they have no seaward boundary and ought to be struck out from the case. It is also argued that since the action is not properly constituted it is incurably defective on grounds of the mis-joinder of the non-littoral States.

The plaintiff submits that all the States of the Federation are likely to be affected by whatever answer this court gives to the true meaning of the proviso to section 162(2) of the Constitution. Reliance is placed on the judgment of this court in the case of A-G of Bendel State v. Attorney-General of the Federation (1982) 3 NCLR 1; (1981) All NLR (Pt.2) 1 where it was held-

“Any party that might be affected by the decision of the court in a suit ought to be joined. It is therefore proper to join the States that are satisfied with the manner and form the 1981 Act was enacted even though there is no apparent dispute between them and the plaintiff.”

The same issue as canvassed here by the preliminary objectors was raised in A-G of Bendel State v. A-G. of the Federation & 22 Ors. (supra). Fatayi Williams, CJN dealt with the question as follows on p.24 thereof:-

“Moreover, since all and each of the States in the Federation have a stake in what its legal share of the revenue should be, it is only fair and just that such States should be joined in the suit.

Some of the States may agree that the procedure should be challenged while others may not. It is for each State to come to court and say so and for the court to adjudicate as to whether any legal right pertaining thereto has been infringed during the exercise of the legislative power by the National Assembly. For this reason I hold that there is a dispute between the Government of Bendel State and the Federal Government, that the dispute involves not only questions of law or fact, but also the constitutional right of Bendel State Government. Furthermore, it is fair, just and proper for all the other defendants sued or joined by the order of Court, to be heard when the claims of Bendel States are being considered by this court (Italics mine)

I need only to add that it is possible that the decision given by this court, in the event of its coming to consider the substantive issue in this case, is likely to affect the non-littoral States. The proviso to section 162 subsection (2) of the Constitution relates to the distribution of the federation account and the non littoral-States are constitutionally entitled to share in the distribution of the Federation Account. I am satisfied, therefore, that there is no misjoinder of the parties in making the non-littoral States parties to this case since they are necessary parties to the case.

Seaward Boundary of Littoral States:

It has been contended that the plaintiffs claim seeking this court to determine the boundary of the littoral States is not justiciable since the Supreme Court has no jurisdiction to determine the boundaries of the States and that only the National Boundaries Commission has the power to do so. It is also argued that the delimitation, demarcation or adjustment of the boundaries between States is the responsibility of the Executive or the Legislature and since under the Constitution there is separation of powers between the three arms of government, namely, the Executive, the Legislature and the Judiciary, the Supreme Court will be usurping the function of the Executive or the Legislature, if it should grant the relief sought by the plaintiff by determining the seaward boundaries of the littoral States. It is further canvassed that the determination of the coastal boundary of a State touches on Law of the Sea and therefore comes under the realm of international law for which the Supreme Court lacks jurisdiction. That only the International Court of Justice at the Hague has such jurisdiction, it is emphasised.

In reply, the plaintiff submitted that States are made up of areas stated against them in the second schedule to the Constitution as provided by section 3 subsection (2) of the Constitution. That the areas of each State are made up of local government areas but that there are no local governments on the high seas to determine the seaward boundary of the littoral States. That it is untenable to suggest that the Constitution has created States without boundaries; the littoral States have seaward boundaries and these are what the court is being called upon to determine. It is submitted that this can be done by examining the provisions of the constitution.

The main thrust of this suit is the interpretation of the constitution and not the determination of inter-state boundaries as provided by the National Boundary Commission etc. Act Cap. 238 of the Laws of the Federation, 1990. Section 3 subsection (1) of the Constitution provides that there shall be 36 States in Nigeria; and subsection (2) thereof provides –

“(2) Each State of Nigeria named in the first column of Par 1 of the first schedule to this constitution shall consist of the area shown opposite thereto in the second column of that schedule.”

Surely, this court is competent to interpret these provisions of the constitution. In doing so it is not usurping the powers of the legislature or the Executive but exercising its interpretative power as given to it by the constitution. In such a situation the court is not also exercising the powers given to National boundary commission under the National Boundary Commission Act, Cap. 238 but exercising its powers under the constitution which could be same or concurrent with that of the commission. I see no conflict in this case between the powers of the Supreme Court and those of the commission. If there were any, the Constitution being supreme to the Act its provisions will in that case prevail over those of the Act – see section 1 subsection (3) of the Constitution.

There cannot be a boundary dispute between the Federation, which consists, of all the States of the Federation, and individual states whether littoral or otherwise since the boundaries are the same see section 2 subsection (2) of the Constitution which provides that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory”

The seaward boundary of Nigeria as well as the international boundaries of Nigeria are the subject of international law in the event of dispute between Nigeria and any of its neighbouring countries or between Nigeria and any other Nation States vis-a-vis its territorial waters or the high seas. Nigerian courts, including the Supreme Court may not have jurisdiction over such a dispute but international tribunals like the International Court of Justice in the Hague.

The situation in this case is not the same. Any dispute between the Federation and a State or States is within the ambit of the jurisdiction of the Supreme Court as provided by section 232 subsection (1) of the constitution. It is, therefore, a misconception to argue that the dispute in this case is beyond the jurisdiction of the Supreme Court and can only be determined by an international tribunal.

Cause of Action.

The 4th and 6th defendants contend that the action brought by the plaintiff does not disclose a reasonable cause of action. It is also argued that the action is premature as the President of the Federal Republic of Nigeria has not yet tabled any proposal for revenue allocation before the National Assembly in accordance with the provisions of section 162 subsection (2) of the constitution. Also that there is no legislation, the interpretation of which will enable the Supreme Court to determine the seaward boundary of the littoral states.

A cause of action has been defined to mean the factor facts which establishes or gives rise to a right of action and that it is the factual situation which gives a person the right to judicial relief – see Egbe v. Adefarasin (1987) 1 NWLR (Pt 47) 1. It is sufficient for a court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The fact that the cause of action is weak or unlikely to succeed is no ground to strike it out- see Moore v. Lawson. 31 TLR 418 CA; Wenlock v. Moloney (1965) WLR 1238 and Irene Thomas & ors v. Olufosoye (1986) 4 NWLR (Pt.18) 669.

I, therefore, hold that there is a reasonable cause of action in the present case because the statement of claim has disclosed enough facts to give rise to a cause of action. Although the President of the Federal Republic of Nigeria is yet to present a bill to the National Assembly on revenue allocation in accordance with , the provisions of section 162(2) of the constitution, there is already an “existing” ) law on the subject, viz, Allocation of Revenue (Federation Account, etc) Act Cap. 16 of the Laws of Nigeria, 1990 as amended by the Allocation of Revenue (Federation Account etc) (Amendment) Decree (Act) 1992 No. 106 of 1992. In my opinion, the action is not therefore premature. At any rate it is the plaintiffs contention that the claim could be proved by mere reference to the provisions of the constitution. On the other hand, if the action is premature the likely event is that the plaintiff will fail to prove his case; however, as shown by the aforementioned authorities, that is not a ground on which we should hold that there is no reasonable cause of action.

Locus Standi

The 9th defendant argues that the plaintiff lacks the locus standi to bring the action because the statement of claim does not plead that the plaintiffs civil right and obligation, with regard to the plaintiffs share of the Federation Account, has been affected by the provisions of the Allocation of Revenue (Federation Account etc) (Amendment) Decree No. 106 of 1992.

The 4th defendant contends that the plaintiff has no locus standi because he pleaded in paragraph 1 of the statement of claim that he brings the action as a representative of Government of the Federal Republic of Nigeria which consists of the Executive, Legislature and the Judiciary. For him to have locus standi he must show that each of the three arms of government has given him its consent to bring a representative action in accordance with Order 3 rule 1 and Order 5 rule (1)(a) of the Supreme Court Rules, 1985.

In reply, the plaintiff submits that sSection 232(1) of the constitution vests this court with special jurisdiction to deal with dispute between the Federation and State or States and between States. The case is between the Federation and the states and not as between individuals. That the defendants have overlooked this fact, Citing A-G of Ondo State v. A.G. of the Federation & ors. (1983) 2 SCNLR 269, (1983) NSCC 512, the plaintiff submitted that once it is shown that there is a real dispute between the parties in the case then a locus standi has been established.

I have already held in this ruling that there is a justiciable dispute in this case involving the legal right of the plaintiff. The Federal Government has the constitutional right and legal obligation to have share in the Federation Account. It needs only to indicate that a justiciable dispute exists between it and the defendants to have the locus to sue A-G of Bendel State v. A-G of the Federation & 22 ors (supra) at p. 157 per Obaseki, J.S.C.

To argue that the plaintiff must show that he has the consent of the Federal Legislature and the Federal Judiciary to bring this action is to ignore the provisions of section 20 of the Supreme Court Act, Cap. 424, which states –

“20. Any proceedings before the Supreme Court arising out of a dispute referred to in section 212 (1) (i.e. section 232(1) of the Constitution and brought by or against the Federation or a state shall –

(a) in the case of the Federation be brought in the name of the Attorney-General of the Federation;

(b) in the case of a state be brought in the name of the Attorney-General of the state.”

Political Question

The 9th defendant argues that the case raises political question because of the averments in the statement of claim by the plaintiff and the statements of defence by the defendants. Constitutional Law Cases and Materials, 7th edition, by Professors Dowling and Gunther was cited with particular reference to p. 163 thereof. The defendant also referred to Toward Neutral Principles of Constitutional Law, by Professor Wechsler, an article published in 73 Harvard Law Review, 1,7, 9 selected essays 1938-62(1963) at pp. 463 and 468.

The 4th defendant submits that section 162 subsection (3) of the Constitution gives the National Assembly the power to prescribe a new revenue allocation formula and the plaintiff is asking the Supreme Court to do the same by urging the court to provide the manner of distribution of the Federation Account, thus usurping the powers of the National Assembly. That the matters which the National Assembly would take into consideration in prescribing anew formula for the allocation of the Federation Account are political. That the Supreme Court cannot deal with a political question. The case of Onuoha v. Okafor & ors, (1983) 14 NSCC, (1983) 2 SCNLR 244 is cited in support of the argument.

The plaintiff replies that it is untenable to canvass that the statement of claim raises a political issue. He argues that the plaintiff’s claim is a justiciable dispute which satisfies the criteria laid down by this court in the case of A.G. of Ondo State v. A.G. of the Federation & ors. (supra) per Nnamani, J.S.C.

The question may be asked: does the dispute as to the interpretation of the provisions of section 162 subsection (2) of the constitution not involve any question (whether of law or fact) on which the existence or extent of a legal right depend The answer to the question has been given in the affirmative earlier in this ruling. There is undoubtedly a dispute as stated in paragraph 8 and 10 of the statement of claim that is appropriate for judicial determination. The dispute is certainly not one which only political decision can resolve. It is real on the face of the statement of claim and substantially admitting of specific relief – see AG. Of Bendel State’s case (supra).

Procedural Irregularity

The 27th defendant raised the preliminary objection that it is not proper for the plaintiff to start the action by filing a statement of claim instead of issuing an originating summons. He refers to Order 3 rules 2(2) and 6(1) of the Supreme Court Rules, 1985 in support of the objection.

The plaintiff replies that order 3 rule 6(1) of the Supreme Court Rules, 1985 is permissive and not mandatory. That there is therefore no justification for the defendant to say that the case must be commenced by originating summons.

Now, order 3 rule 6(1) states:-

“In any proceedings where the court has original jurisdiction, any party claiming any legal or equitable right and the determination of the question whether it is entitled to the right depends on the construction of the constitution or any other enactment may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed and for any further or other relief.”

The objection raises only a procedural irregularity. Despite the purported irregularity the 27th defendant, like all the other defendants in the case, has filed a statement of defence in answer to the plaintiff’s statement of claim. The irregularity does not occasion any inconvenience to the 27th defendant or any defendant in the case. It is only an issue of technicality. As argued by the plaintiff, the provisions in Order 6 rule 3(1) are by the use of the word “may” only directive and not mandatory and so can be overlooked. At any rate, we can waive the irregularity under Order 10 rule 1(1) of the rules, which provides-

“1(1) The court may where it considers it in the interest of justice so to do, waive compliance by the parties with these rules or any part thereof.”

Since steps have been taken by the 27th defendant as well as all the defendant to file statements of defence, to uphold the objection and strike out the action will not disqualify the plaintiff from taking the appropriate steps to reinstitute the action. It will only have the effect of delaying the action and this will not be in the best interest of the public particularly as the case concerns the interpretation of the constitution – See Johnson v. Aderemi; 13 WACA 297-298; Adejumo v. Governor of Lagos State (1970) 1 All NLR 183 at p. 185 and A.G. of Bendel State v. A.G. of the Federation & 22 ors (supra) at pp. 148-150,194-195 and 225-227.

Finally objection has been raised by the 1st defendant that the suit is academic and, therefore, it is frivolous, vexatious and speculative, Going by all the foregoing it cannot, in my opinion be right to say that the issues raised by the statement of claim are academic or can it be properly contested that the suit is frivolous and vexatious or speculative. I see no substance in this objection.

On the whole I do not find any of the preliminary objections substantiated. Accordingly they are all overruled and are hereby dismissed. I make no order as to costs.

SC.28/2001(-R)