The Attorney-general Of The Federation V. The Attorney-general Of Lagos State (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The plaintiff/respondent took out a civil summons dated 3rd March 2011 invoking the original jurisdiction of this Court against the defendant/objector. On the 10th October, 2016, the latter gave notice of preliminary objection pursuant to Order 2 Rule 29 of the Supreme Court Rules 1999 (as amended), Section 232(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the inherent jurisdiction of this Court seeking the following orders:-

(1) An order striking out this suit as this Honourable Court lacks the requisite original jurisdiction to entertain same.

(2) An order striking out this suit as the plaintiff/respondent lacks the locus standi to institute this action.

(3) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

The objection is predicted on the grounds that:-

1. This Honourable Court lacks Original jurisdiction to entertain causes or matters between the Federal Government and a State Government as in the instant case;
2. The Honourable

Court cannot exercise Original jurisdiction in causes or matters purely on ownership of land.

3. The Plaintiff/Respondent, having divested its interest in the subject matter of this Suit, lacks the locus standi to institute this action.

At the hearing of the preliminary objection, parties adopted and relied on their already filed and exchanged written addresses as their respective arguments.

The three issues distilled by the defendant/objector as having arisen for the determination of his preliminary objection read:-

(i) Whether this Honourable Court has Original jurisdiction to entertain causes or matters between the Federal Government and a State Government; and

(ii) Whether this Honourable Court has Original Jurisdiction in land matters.

(iii) Whether Plaintiff/Respondent, having divested its interest in the subject matter of this Suit, with special reference to No. 10, Gerard Road, Ikoyi, Lagos State, has the locus standi to institute this action.

The three similar issues formulated by the plaintiff/respondent read:-

1. Whether the dispute in the present action does not fall within the

original jurisdiction of the Supreme Court under Section 232 of the Constitution;

2. Whether as presently constituted, the present action is a land matter;
3. Whether the Plaintiff does not have the locus standi to institute the present action

It appears to me that the first issue in controversy between the parties herein is whether the suit to which the preliminary objection relates, as constituted, comes within the purview of Section 232 of the Constitution to entitle this Court, as established under Section 230 of the same Constitution, assume jurisdiction.

There is the need also to consider and resolve whether or not the plaintiff/respondent has the locus standi to maintain the instant matter and the effect of a negative answer to the enquiry on the jurisdiction of this Court in such a situation.

On the 1st and 2nd issues, learned counsel to the defendant/objector submits that whereas Section 230 of the 1999 Constitution (as amended) establishes the Supreme Court of Nigeria, Section 232(1) of the very Constitution and Section 1(1) of the Supreme Court (Additional Original jurisdiction) Act enacted pursuant to Section

232(2) of the 1999 Constitution provide for the Courts Original Jurisdiction. Whether or not plaintiff/respondent suit as constituted comes within the purview of this Courts original jurisdiction as provided under Section 232(1) and the 2002 enabling Act, learned counsel submits, depends on the claim therein. By Paragraph 14, 15, 16, 17 and 18 of plaintiffs amended statement of claim, it is contended, the action is basically a land matter that does not come within the contemplation of the original jurisdiction of the Court as conferred by the Constitution and the law. Relying on the decision of this Court in Olufo v. Idodo (2010) 18 NWLR (Pt. 1225) 545; Attorney-General of Lagos State v. Attorney-General of the Federation (2014) 9 NWLR (Pt. 1412) 217 at 257 and Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 629, learned counsel submits, the suit which does not come within the purview of the Courts original jurisdiction be struck out.

On the 3rd issue, learned defendant/objector contends that the plaintiff has failed by his originating process to show the interest it has in the lands in respect of which it seeks to invoke the

Courts jurisdiction. An examination of Paragraphs 14, 15, 16, 17 and 18 of plaintiffs amended statement of claim, it is submitted, shows clearly that the plaintiffs respondent has divested its interest in the subject matter of the suit to another party. Relying on the cases of AG, Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483; Central Bank of Nigeria & Ors v. Kotoye (1994) 3 NWLR (Pt 330) 66 at 73; Owodunni v. Registered Trustee of CCC (Pt. 675) 315 and Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538, learned counsel submits that the plaintiff who has not shown any nexus to the claim, being devoid of any locus standi, is incapable of maintaining the action. Accordingly, it is further submitted, the action should be struck out.

Responding, learned counsel to the plaintiff/respondent agrees that the original jurisdiction of the Supreme Court is provided for by and in pursuant of Section 232(1) and (2) of the 1999 Constitution (as amended) respectively. The provisions, contends learned counsel, confer on the Court original jurisdiction in respect of any dispute between the Federation and a State on any question on which the existence

of a legal right depends provided such dispute is not grounded in crime. References to the Governor of Lagos State in the plaintiffs claim, it is submitted, pertains the Governor in his capacity as the Head of the State of Lagos. By virtue of Section 176 of the 1999 Constitution (as amended) and Section 3 of the Land Use Act, it is submitted, the Governor being the trustee of lands in Lagos State exercise control of the land in State the Constitution and the law confers on him on behalf of the State. In the same vein, submits learned counsel, the President in his capacity as the Head of the Federation by virtue of Section 130 of the 1999 Constitution, Section 1, 49 and 51(2) of the Land Use Act, being a trustee, exercises powers over all Federal lands within the territory of any State in Nigeria including Lagos State. The dispute in the instant suit, learned plaintiff/respondent counsel contends, is about general control and management of Federal land within Lagos State particularly the re-issuance of certificate of occupancy, granting consent or exercising rights of ownership by the defendant/respondent in breach of Section 49 and 59(2) of the Land

Use Act 1978. The dispute, submits learned counsel, is real and constitutional since Lagos State continues to interfere with the powers of the Federation over Federal lands in the State. What the plaintiff requires in the suit, it is further submitted, is a declaration by the Court that Federal lands are, by law, exempt from the powers and control of the Lagos State. A community reading of Section 1, 59 and 51(2) of the Lands Use Act learned counsel submits, shows that the land to which the instant suit relates inheres in the President who is the head of the Government of the Federation. It is only the President that can enforce the rights of the Federation in the lands. Relying on AG, Federation v. AG, Abia State (2001) 11 NWLR (Pt. 725)0 80, learned counsel urges that the facts of plaintiffs case being distinguishable from those the Court contended with inter-alia in AG Lagos State v. AG Federation supra and AG, Kano State v. AG, Federation (2007) 6 NWLR (Pt. 1029) 164 and AG Anambra State v. AG, Federation (2007) 12 NWLR (1047), the authorities do not, therefore, apply to the plaintiffs suit.

On the 3rd issue, learned

plaintiff/respondents counsel submits that the defendant/objectors postulations thereunder are misconceived. It is not true that the paragraphs in plaintiffs/respondent amended statement of claim dwelt upon by the objector show that the plaintiff has dis-invested its right in No. 10 Gerald Road Ikoyi, or any other Federal land in Lagos. Beyond No. 10 Gerald Road Ikoyi, the plaintiff’s claim is for a declaration in respect of all lands vested in the plaintiff that are situate in Lagos State. It cannot be said, argues learned plaintiff/respondents counsel, that from his claim the plaintiff has not outlined the platform to maintain the suit. On the whole, it is submitted that the objection be overruled.

Now, it certainly cannot be over-emphasized that the issue of jurisdiction in our adjudication process is a fundamental one. This explains the practice evolved by the Courts of allowing the issue to be raised even for the first time on appeal purposely to stop the waste of time not only of the litigants but that of the Court which decision, if arrived at without jurisdiction, will be a nullity notwithstanding how well the proceedings leading to it were conducted. See Timitimi v. Amabebe & Ors 14

WACA 374 Madukolu v. Nkemdilim (1962) 1 SCNLR 34 and Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28.

Again, parties herein are right that jurisdiction is statutorily conferred and where the issue as to a Courts jurisdiction arises, it is determined by the plaintiffs claim and the reliefs he seeks. See Adeyemi v. Opeyori (1976) 9-10 SC Page 18, Obiuweubi v. CBN (2011) 2-3 SC (Pt 1) 46 and Goldmark Nigeria Ltd & Ors v. Ibafon Company Ltd & Ors LPELR 9349 (SC).

In the case at hand, Section 232(1) of the 1999 Constitution (as amended) pursuant to which the plaintiff sues 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.

In interpreting the foregoing, this Court in many of its decisions has specified the criteria that brings a plaintiffs claim within the purview of its original jurisdiction as constitutionally conferred. The emphasis in these

decisions is that the dispute in respect of which the Court exercises its original jurisdiction must be one between the Federation and the State rather than one between the governments of both, States inter-se or their agencies. In AG, Lagos State v. AG Federation (2014) 9 NWLR (Pt. 1412) 217 at 260-261, the Court held thus:-

Plaintiffs grouse as captured inter-alia in the foregoing paragraphs is about a dispute between the Federal Government and the Government of the State rather than between the Federation and the various States. It is also a dispute pertaining to the operation of an agency of the Federal, Federal inland Revenue Service (FIRS) vis–vis an agency of the plaintiff. I do not have the slightest doubt that any dispute on all or any of these comes squarely within the purview of the jurisdiction the makers of the Constitution specifically provided the Federal High Court under Section 251(a)(b) and (q) of the Constitution which provision tampers and conditions the original jurisdiction of this Court pursuant to Section 232(1) of the same Constitution. The plaintiff whose claim clearly

relates to the revenue of the government of the Federation, consequent upon the taxes one of its agencies levies is at the wrong Court. This Court must decline jurisdiction. I so hold.

See also AG, Kano State v. AG, Federation (2007) 6 NWLR (Pt. 1029) 164; AG, Federation v. AG, Imo State (1983) 4 NCLR 178; AG, Bendel State v. AG, Federation (1982) 3 NCLR; AG Lagos State v Ag Federation (2004) 18 NWLR (Pt. 904) 1 referred to 1.

Mahmud Mohammad the Hon. CJN (as he then was) at pages 293-294 of the law report concurred as follows:-

The criteria as stated in those cases before the original jurisdiction of this Court is invoked are that-

(a) There must be a justiciable dispute involving any question of law or fact.

(b) The dispute must be-

(i) Between the Federation and a State in its capacity as one of the Federating constituent units of the Federation; or

(ii) Between the Federation and more States that are in their capacity as members of the constituent units of the Federation; or

(iii) Between the States in their capacities as members of the constituent units of the

Federation

Since the reliefs claimed by the plaintiff particularly the injunctive relief is against the Federal Government of Nigeria, its servants and its agencies, the relief not being against the Federation of Nigeria or any State or States of the Federation as constituent units of the Federation, is not within the purview of Section 232(1) of the 1999 Constitution to confer original jurisdiction on this Court.

Does the plaintiff/respondents claim satisfy the foregoing criteria enunciated by this Court to entitle the Court assume jurisdiction over his cause I say yes and no to the question. This ambivalence is readily explained from an examination of the plaintiff/respondents amended statement of claim Paragraphs 14, 15, 16, 17 and 18 of which inter-alia constitute the essence of the claim. Paragraphs 22, 23, 24 and 25(1)(5) and (6)-(10) are particularly hereinunder reproduced for their aptness:-

22. The Plaintiff states that the issue of 10 Gerrard Street Ikoyi, also called Trenchard Place is merely taken up as a Test Case out of thousands of cases of Regularization of Consent demanded by the Defendant, which

has pitched the Plaintiff against the Defendant with respect to whether the Governor of Lagos State can grant consent to transactions on land vested in the plaintiff, Federal Government, within Lagos State.

23. The plaintiff shall contend that all lands, whether developed or underdeveloped, vested in the Plaintiff in the territory of the Defendant, are excluded from the management and control of the State Governor.
24. The plaintiff shall further contend that the President of the Federal Republic of Nigeria or a Minister designated by him has power to the exclusion of the Defendant Governor of Lagos State to Consent to any transaction in any land vested in the Federal Government in Lagos State under the Land Use Act.
25. WHEREOF THE PLAINTIFF claims against the Defendant as follows:

(1) A DECLARATION that the acts of re-issuing of Certificates of Occupancy, granting of consent or exercising rights of ownership, control and management by the Defendant over the land held and vested in the Plaintiff within the territory of the Defendant, upon which the plaintiff has been exercising rights of ownership, control and management, contrary to

Sections 49 and 51(2) of the Land Use Act, Cap L5, Laws of Nigeria, 2004, are illegal, null and void.

(5) A DECLARATION that the Defendants consent is not required for the Plaintiff to convey valid title to persons that acquired title through it, either by way of alienation of right of occupancy, consent to assignment, mortgage, transfer of possession, sublease or otherwise in all the transactions of lands vested in the Plaintiff upon which the plaintiff has been exercising rights of ownership, control and management within the Lagos State territory and that any such requirement of consent is null and void.

(6) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant, either by its Governor or through its Commissioners, Directors other staff, servants, agents, privies, assigns or other persons howsoever called, forthwith from re-issuing of Certificates of Occupancy, demanding or granting consent to any alienation of right of occupancy, assignment, mortgage, transfer of possession, sublease or exercising rights of ownership, control and management or otherwise over lands held and vested in the Plaintiff, the Federal Government of Nigeria,

within the territory of the Defendant.

(7) AN ORDER directing the Defendant to account for all Public Revenues it has received from 1967 till date from its dealings with the PLAINTIFFS Lands within its territory.

(8) ORDER setting aside all Certificates of Occupancy and consents issued by the Defendant over the Plaintiffs LANDS IN IT’S TERRITORY INCLUDING 10 Gerrald Road Ikoyi.

(9) ORDER OF RECTIFICATION of the Records of the Defendants Lands Registry, by expunging entries in respect of the plaintiffs lands in the Defendants territory including that of 10 Gerrald Road Ikoyi.

(10) PERPETUAL INJUNCTION restraining the Defendant from granting Rights of Occupancy, issuing of Certificates of Occupancy and granting Consent in respect of transaction on the Plaintiffs lands within the Defendants territory.

It is evident from the foregoing that the dispute between the plaintiff and the defendant pertains to land. I agree with learned counsel for the plaintiff/respondent that by the combined effect of Sections 1, 49 and 52(2) of the Land Use Act title to Federal and State lands are vested

in the Federal and State Governments for the President and the State Governor to hold same in trust for the Federation and the people of the State respectively. In the case at hand, where the plaintiff asserts interference with the title in lands under its management and control by the defendant, a dispute between the two, the Federation and the State, appears discernible to warrant the invocation of this Courts original jurisdiction pursuant to Section 232(1) of the 1999 Constitution as amended. But that is not all for this Court has persisted on the principle that when a partys standing to sue is in issue, as it is in the instant case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See Oloriode v. Oyebi (1984) 5 SC 1; Owodunni v. Reg Trustees of CCC (2000) 6 SC (Pt III) 60 and Itsekiri Trustees v. Warri Divisional Planning (1972) II SC 235.

The strongest wicket of the defendant/objector is that the plaintiff has failed to show, given the averments in its amended statement of claim, that it has a standing to

maintain the suit. Plaintiffs real grouse, it is contended and rightly too, relates to the Regularization consent the Defendant insists persons who acquired Federal lands must obtain from it before title effectively vested in the transferees. No. 10 Gerald Road by the plaintiff himself is a test case out of thousands of such lands title to which, having been already transferred to others no longer inheres in the plaintiff. In Senator Abraham Adesanya v. President of Nigeria and Anor (1981) 1 ALL NLR 1 the Court per A. Fatayi Williams CJN (as he then was) stated thus:

It is only when the civil rights and obligation of the person who invokes the jurisdiction of the Court are in issue for determination that the judicial powers of the Courts may be invoked. In other words, standing will only be accorded a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.

In the instant matter, it is thus not enough for the plaintiff to assert that the control and management of Federal lands exclusively vests in the

President who holds same in trust for the federation but to further show that defendants act of interference persists inspite of the plaintiffs persisting exclusive title to the land. Having transferred its title in the lands to others, it is untenable for the plaintiff herein to assert that the very title that ceases to vest in it is adversely threatened by defendants interference. The plaintiff who lacks the standing to sue, the learned counsel to the defendant is right, cannot invoke the original jurisdiction of this Court to assert a title he no longer has. It will be academic and hypothetical for the Court to proceed on the matter. It never does. See Dr. Irene Thomas & Ors v. Reverand T.O Olufosoye (1986) 1 All NLR Vol. 1 (Pt. 1) 215 and Professor Bolaji Idowu v. Reverand G.A. Bamgbose (1986) 4 NWLR (Pt. 37) 632.

For the foregoing, defendants preliminary objection which is well taken is hereby sustained and plaintiffs action accordingly struck out.

Parties to bear their respective costs.

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