The Attorney-general Of Abia State Of Nigeria V. Attorney-general Of The Federation & Ors. (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This action was commenced by the Attorney-General of Abia State against the Federation and the other States identified in the writ of summons under and by virtue of the provisions of section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 which vested original jurisdiction in this court 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.

In the case under consideration, the questions raised by the plaintiff against the Federation and thirty-five other States of the Federation for determination by this court are as follows: –

“1. A determination of the question whether or not the States (Creation and Transitional Provisions) (No.2) Decree (No. 41) 1991 is in force as a law enacted by the National Assembly and creates Abia State of Nigeria without further assurance.

2. A determination of the question whether or not the States (Creation and Transitional Provisions) (No.2) Decree (No. 41) 1991 creates Abia State as a new State Pursuant to section 1(1) of the Decree.
3. A determination that the States (Creation and Transitional Provisions) No.2 Decree (No. 41) 1991 creates Abia State as a new State with no encumbrances.
4. A declaration that it is not lawful for the Minister of Finance or any person authorised by him to deduct any sum or sums of money from the plaintiffs share of the Federation Account without plaintiff’s consent or concurrence for the purpose of servicing any debts incurred by the Government of the State called Imo State created by the States (Creation and Transitional Provisions) Decree 1976.
5. An order of perpetual injunction restraining the Federal Government, its functionaries or agencies whomsoever (including the Minister of Finance) or howsoever from deducting or making deductions from the plaintiff’s share of the Federation Account except as determined by the decision in Attorney-General of Abia State & 35 Ors. (No.5) (2002) 6 NWLR (Pt. 764) 542 ”

Pursuant to the originating summons, the plaintiff filed a very copious statement of claim, which ended with five reliefs that are in pari materia with the claims made in the originating summons. Thereto, the plaintiff claims against the defendants jointly and severally as follows: –

“(i) An order directing the first defendant to deduct from the plaintiff’s share of the Federation Account only such sums as may be mutually agreed by the Government of Abia State and the Government of the Federation (for the purpose of servicing any debt proved or adjudged to be outstanding against the Government of Abia State).

(ii) An order of injunction restraining the first defendant from making or continuing to make any deductions (from the plaintiffs share of the Federation Account or any other account whatsoever) until further order as in (i) above.”

In order to fully appreciate properly the nature of the dispute calling for determination between the parties, the statement of claim will be set out and subject to the resolution of the preliminary objection raised against the action as commenced, the relevant pleadings of the parties deemed necessary for the resolution of the dispute would also be reproduced. At the beginning of this judgment, mention was made of the fact that the plaintiff commenced this action against the Federation and thirty-five States of the Federal Republic of Nigeria. Several of the defendants duly entered appearance and filed their respective statements of defence and briefs of argument. Indeed one of them, the 30th defendant filed a counter-claim in the matter. But before consideration is given to them, I need to first consider the preliminary objection raised by the 9th defendant, namely Cross Rivers State to the claim.

The notice of preliminary objection which was brought by the 9th defendant under Order 2 rule 9 of the Supreme Court Rules (as amended in 1999) reads: –

“Take notice that at the hearing of this action, the 9th defendant herein named intends to rely on the following preliminary objection notice of which is hereby given to you on, viz

That there is no cause of action between the parties hereto and consequently this suit ought to be struck out.

Further take notice that the grounds of the said objection are as follows: –

1. The statement of claim discloses no dispute between the plaintiff and the 1st defendant or between the plaintiff and the 35 other States of the Federation.
2. There is no averment of the plaintiff’s prior step of presenting its grievance to the Federation Account Allocation Committee and the failure or refusal of that Committee to grant it redress.
3. There is, alternatively, no pleading of resort by the plaintiff to an appropriate authority of the Federal Government for redress and the neglect or refusal of such authority to offer such redress.”

After due consideration of this preliminary objection and the grounds of the said objection, it seems that there is merit in a part of the objection. In order to determine this point, I have taken the liberty to study the averments made in the pleadings filed by the parties. The outcome of that study in my respectful view, is that the parties that can properly be described as being in dispute with the plaintiff, having regard to its claim, are the 1st defendant i.e. the Attorney General of Federation, and the 16th defendant, the Attorney-General of Imo State. As the reasons for arriving at this conclusion would be made clear later in the course of this judgment, I do not deem it necessary to do so now. I will therefore uphold this aspect of the preliminary objection. But the prayer to have the entire action struck out would be refused. However, in view of the decision that I have taken that there is certainly a dispute between the plaintiff, the 1st defendant and the 16th defendant, the other defendants not being necessary for the determination of the dispute are hereby struck out from the suit. Also struck out are the 2nd and 3rd grounds given for the preliminary objection as they lack any merit in the circumstances.

It is also appropriate to deal with the counter-claim filed by the 30th defendant in this suit. It is evident that the counter-claim so filed would have to be struck out also in view of the decision I have reached above on the preliminary objection to the main suit. As the 30th defendant has been struck out, the counter-claim filed by it is accordingly struck out.