3PLR – BAKARE V. THE ATTORNEY GENERAL OF THE FEDERATION

Published by Law Nigeria Admin at October 9, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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BAKARE

V. THE ATTORNEY GENERAL OF THE FEDERATION

IN THE SUPREME COURT OF NIGERIA

7TH SEPTEMBER, 1990.

APPEAL NO. SC.293/1988

3PLR/1990/35 (SC)

OTHER CITATIONS

(1990) 5 NWLR (PT.152) 516.

BEFORE THEIR LORDSHIPS

BELLO, J.S.C.

ESO, J.S.C.

UWAIS, J.S.C.

BELGORE, J.S.C.

WALI, J.S.C.

OLATAWURA, J.S.C.

AKPATA, J.S.C.

BETWEEN

ALHAJI R.B. BAKARE

AND

THE ATTORNEY-GENERAL OF THE FEDERATION
THE ACCOUNTANT-GENERAL OF THE FEDERATION
THE PERMANENT SECRETARY FED. MIN. OF WKS. & HOUSING

MAIN ISSUES

CONSTITUTIONAL LAW -Sections 1(3) and 6(6) (b) of the 1979 Constitution – Whether render nugatory sections 3 & 4 of the Petitions of Right Act cap. 149 Laws of the Federation, 1958.

INTERPRETATION AND CONSTRUCTION -Section 6(6) (b) of the 1979 Constitution – How construed.

CONSTITUTIONAL LAW -Petition of Rights -Sections 3 & 4 of the Petition of Rights Act- Whether rendered void and nugatory by sections 1(3) and 6(6)b of the 1979 constitution.

PRACTICE AND PROCEDURE-Commencement of action – The need to obtain the Attorney-General’s fiat before an action for civil claims is instituted against the Government – Whether still necessary in view of the provisions of the 1979 constitution – Petition of Rights Act – Whether creates cause of action.

WORDS AND PHRASES – “May”- Meaning of.

REPRESENTATION

Shonibare, Esq. for the appellant.

Harris-Eze, Esq., Director of Civil Litigation (with him Mr. H. A. Njoku) for the respondent.

MAIN JUDGMENT

ESO, J.S.C. (Delivering the Lead Judgment): On 16th July, 1990 this Court, sitting as a full Court, allowed the appeal of the plaintiff. Reasons for the course taken were adjourned till today. I hereby give my Reasons.

Though Mr. Harris-Eze, Director of Civil Litigation, appeared for the respondent in this case, and he filed no Brief for the respondent, he was permitted to make oral submissions on behalf of the respondent even without a written Brief.

The issue which is involved, in fact, is very narrow, if one goes by the judgment of the Court of Appeal. The issues before that Court were two fold and they are –

Whether the appellant who was the plaintiff in the trial court could validly bring his suit in view of the Petition of Rights Act (even in this, the issue is duofold. For the date of commencement of the action was brought into focus).

If he could, whether or not the award made by the Trial Court was reasonable.

On the first issue the Court of Appeal held as per Uche-Onto, J.C.A. –

“I would hold that the (sic) Petition of Rights Law cannot prevent the respondent (that is the plaintiff who is now appellant in this court), in the absence of any other disability, from commencing an action after October, 1979 to recover rents due to him.”

The learned justice of the Court of Appeal, having so held, asked himself a question:

“Secondly, did the cause of action arise before or after the commencement of the Constitution in October, 1979? This is important because the provisions of the Constitution can only apply in respect of the latter, since its provisions do not have retrospective effect vide F. S. Uwaifo’s case(supra)?

He answered the question: –

“Whilst counsel for the appellant (the defendant) has submitted that the cause of action in this case arose between 1978 and August, 1979 when the rents became due and payable respondents counsel’s submission in his brief is that the important date is that on which the action was taken. Before us, in oral argument respondent’s counsel has submitted that the operative date when cause of action accrued is after the rent had been demanded and not paid i.e. after exhibit G was written on 23/11/79.

Upon this finding the Court of Appeal allowed the appeal of the defendant. That is, though the Constitution of 1979 has rendered nugatory the Petition of Rights Act, the instant case is not protected by the Constitutional provisions only because the cause of action arose before the date of the Constitution. He dismissed the claim of the plaintiff, which claim he said he would have found in his favour but for this earlier finding. And it is this part of the decision that has constituted the main spring of the second issue which came before the Court of Appeal.

What are the facts of the case?

On 9th April, 1980, the plaintiff, Alhaji R B. Bakare filed a claim against –

The Attorney-General of the Federation;

The Accountant-General of the Federation; and

The Permanent Secretary Federal Ministry of Works and Housing. The claim, as indorsed on the writ of summons, is as follows:-

“WRIT OF SUMMONS INDORSEMENTS

The plaintiff’s claim against the defendants is the sum of N138,890.40(One hundred and thirty eight thousand, eight hundred and ninety Naira, forty Kobo) being rent in respect of plaintiff’s property known as TENSON HOUSE, situate at 9/10 Ring Road, Ibadan, let to the defendants at Ibadan for the period 1978/79; 1st August, 1979 to 31st July, 1980.

PARTICULAR OF CLAIMS

(a) Arrears of Rent for the years 1978 to 1979 = N42,445.20 (b) Rent for the period 1st

August, 1979 to 31st July, 1980 N96,445.20 ALTERNATIVELY

The plaintiff claims the said sum of N138,890.40 as damages for Breach of the Tenancy agreement.”

A statement of claim followed on the same day, though it was in fact filed on the following date. Almost all the paragraphs of the statement of claim are pertinent. They are:

“STATEMENT OF CLAIM

The plaintiff is the owner of the house known as ‘TENSON HOUSE”, 9/10 Ring Road, Ibadan, within the Ibadan Judicial Division.

The 1st defendant is by virtue of his office the agent of the Federal Government of Nigeria for the purpose of all litigations.

The 2nd defendant head of a department under the Federal Government of Nigeria and tenant of the plaintiff in respect of ‘TENSON HOUSE”, 9/10 Ring Road, Ibadan under a tenancy agreement which is the subject of this action.

The 3rd defendant is the Chief Executive in the Federal Ministry of Works and Housing whose Ministry is responsible for valuing premises to be rented by any department of the Federal Government, of Nigeria and who acting in the course of the executive authority of the Federal Government, valued and said ‘Tenson House” for the purpose of the tenancy agreement which is the subject of this action.

By an agreement which was partly oral and party in writing made between the plaintiff and 2nd and 3rd defendants; the 2nd defendant became tenant to the plaintiff of premises comprising the Ground, First, Second, Third and Fourth floors of the building situate at 9/10 Ring Road, Ibadan and known as ‘Tenson House” for a term of three years in the first instance from 1st August, 1975 to 31st July, 1978. In so far as this agreement was in writing it was contained in a letter dated 3rd March, 1975 written by the plaintiff’s solicitor in a letter dated 3rd March, 1975 by the 2nd defendant and in a letter dated 16th July, 1975 by the 3rd defendant. The said agreement was upon the terms that the lease would be for three years certain in the first instance, that the rent would be at the rate of N59,100.00 per annum, that three years rent would be paid in advance, that the premises would be occupied by the Ibadan Office of the department headed by the 2nd defendant, and that the 2nd defendant would have the option of renewal at the end of the term of years certain.
In accordance with the terms of the agreement, the 2nd defendant paid the plaintiff three years rent at the agreed rate in a lump sum and the plaintiff let the 2nd defendant into possession on 1st August, 1975.

The lease for three years certain expired on 31st July, 1978 and in spite of numerous requests by the plaintiff before the expiring date that the 2nd defendant should indicate his intention with regard to the option of renewal of the tenancy which the plaintiff was prepared to renew at a rent of N6.00 per square foot per annum, the 2nd defendant did not exercise the option to renew the tenancy but continue to remain in occupation.

By a letter dated 10th August, 1978 the plaintiff informed the 2nd and 3rd defendants that the lease had expired and that the option to renew it had not been exercised. The plaintiff further informed the 2nd and 3rd defendants that the plaintiff had received offers from other prospective tenants but the plaintiff was prepared to renew the lease of the 2nd defendant on a year to year basis at a rent to be calculated at the rate of N6.00 per square foot per annum, being N96,445.20 per annum for a total floor space of 1,549.4 metres occupied by the 2nd defendant.

By the same letter pleaded in paragraph 10 above the plaintiff agreed to allow the defendant to continue to use and occupy the said premises on the deposit of N50,000.00 pending a valuation to be carried out by the 3rd defendant in accordance with the usual procedure of government.

Dated this 9th day of April, 1980.”

The three defendants filed a joint statement of defence. There was nothing in the statement of defence which challenged the vires of the plaintiff to bring the action. In other words, the issue of the Petition of Right was not raised in the pleadings at all. The learned trial judge Atinuke Ige, J., wrote a well considered judgment in conclusion, the learned judge after a painstaking assessment of the facts awarded the sum of N54,100.00 to the plaintiff. The only interesting legal issue which arose before her was the legal entity of each of the defendants. On this, the learned trial judge held:

“Another point raised by counsel for the defendants on the issue of the legal entity of each of the defendants calls for attention. It is my view that the plaintiff has done the correct thing by suing the Federal Attorney-General, the Permanent Secretary, Federal Ministry of Works and Housing. They are legal entities and they are all connected with the transaction over the letting of plaintiff’s premises known as ‘TENSON HOUSE”, Ring Road, Ibadan.”

In this appeal to the Court of Appeal (at that time the Federal Court of Appeal), dated 21st December, 1982, Mr. Harris-Eze of counsel for the defendants/appellants filed only two grounds of appeal and neither had anything to do with issues which are now on appeal before this court. However, an amended notice of appeal dated 14th November, 1983 was filed.

Ground 4 of that notice reads:

“4. The learned trial judge erred in Law in not holding that the procedure adopted by the plaintiff in bringing the action was wrong in law and so striking out the claim.

PARTICULARS OF ERROR

The action sounds in contract and ought to have been by way of a Petition of Right with the fiat of the Honourable Attorney-General of the Federation.”

His Brief dated 24th October, 1988 also had as one of the questions for determination :

“4. Non-compliance with Statutory Provisions for making the claim under Petition of Rights Act, Cap. 149, Laws of the Federation as amended by L N. 122 of 1964, accordingly the High Court lacks jurisdiction to entertain the matter.”

And so, the issue of Petition of Rights was attached to the jurisdiction of the Court of Appeal to hear the appeal.

It has long been held that the issue of jurisdiction could be raised at any stage of the proceedings and that is from trial to final appeal. The plaintiff made a non-too spirited objection in his respondent’s Brief to the introduction of this issue at that stage. Nevertheless, he was wise to have raised the issue of the consistency of the Petition of Rights “with the 1979 Constitution at the end of his Brief.

And, as I have earlier said, the learned justices of the Court of Appeal in deciding that the Petitions of Rights Law (Act in this case) would not apply to cases after the 1979 Constitution held that in the instant appeal, the cause of action accrued before October, 1979, that is, before the coming into operation of the Constitution made that year.

The plaintiff has appealed to this Court, strangely, on grounds of appeal which question the applicability or not of the Petition of Rights Law, whereas, the Court of Appeal has decided in his favour that the Petition of Rights Law (Act) will not apply to cases arising after the coming into operation of the 1979 Constitution.

In the Brief of the learned counsel for the appellant, is contained, issues for determination, whether or not the Petition of Rights Law is applicable, but only one of the issues dealt with date of the actual cause of action, and even then, the issue (issue iii) could not be said to have been that explicitly put. It reads :

“Has the High Court jurisdiction in respect of an action taken out in Court, after the commencement of the 1979 Constitution in view of the said constitutional powers vested under S.236 and S.6(6)(b) or has got its jurisdiction ousted by the inhibitive provisions in the Petitions of Right (sic) Law or Act.”

The oral submissions of learned counsel were also to this effect. Learned counsel spent so much time on the effect of S.274(1), S.274(2), SS. 6(6) (b) and 33 of the Constitution.

I have decided to dwell quite substantially on the Petition of Rights Act having regard to the stand taken by learned counsel and also for the reasons given for its decision by the Court of Appeal.

I have already said that Mr. Harris-Eze filed no written brief but he was permitted to address us orally. He maintained that the cause of action arose in this case before 1979 as the agreement involved in the case was made between 1st August, 1978 and 31st July, 1979. Mr. Harris-Eze was in effect conceding that the Constitution of the Federal Republic of Nigeria, 1979 had in effect removed the effect of the Petitions of Right Act. He agreed that the action herein was commenced on 9th April, 1980 but that the date of the cause of action was the material date.

In Black stone Commentaries. Page 256 it had long been recognised that a petition of right is the process by which property of any king (including money or damages) could be recovered from the Crown. In Thomas Ironworks and Ship Building Co. v. R. (1869) 10 B & S 33 it was held that among many money claims for payment which a petition of right is available are specified claims for liquidated sums due under contract. And such is the claim in this case, which was for rent in respect of plaintiff’s property.

What is the short history behind the Petitions of Right Act in this Country? It had its source in English Legal History. In 1628, the Commons (in England) had embodied their demands in what is known as the Petitions of Right. This petition contained a long list of grievances. In 1700 Holt, C.J., and his fellow justices held in the Bankers case, 14 S.T.L. (1700) that a Petition of Right lay against the Crown for damages on breach of contract. (The instant case of failure to pay agreed rent in a case of breach of contract). The decision in Bankers case (supra) had thus anticipated the decision of Lord Mansfield, C.J., that great English Judge, five years later, in the Summersets’ case: Smith v. Brown (1705) 2 Salk 666 that one could not be a slave on English soil. The latter case is of course a case in Habeas Corpus.

On the 1st December 1915, the Petitions of Right Ordinance (a colonial legislation of course and so understandable) was passed into law, Ss.3 & 4 provided:

“All claims against the Government, or against any governmental Department, being of the same nature as claims which may be preferred against the Crown in England by petition, manifestation or plea of right, may, with the consent of the Governor General be preferred in a Superior Court having original jurisdiction in respect thereof in a suit instituted by the claimant as plaintiff against the Attorney-General of the Federation as defendant, or such other officer as the Governor- General may from time to time designate for that purpose.

The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of a statement of claim in the court and the delivering of a copy thereof at the office of the Attorney-General of the

Federation or other officer designated as aforesaid………………………………… Mr. Harris-Eze is in agreement that with the coming into force of the Constitution of the Federation 1979, section 6(6)(b) thereof renders nugatory the provision of the Petitions of Right afore- referred to. That provision was reflected upon In Chief (Mrs.) Olufunmilayo Ransome Kuti v. Attorney-General of the Federation and Ors. (1985) 6 S.C. 246 in relation to Petitions of Right. In that case, I said and I still maintain:

“Happily for the country …….. section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism.

Sub-section 6 of the section provides –

(6) The judicial powers vested in accordance with the provisions of this section:

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

The anachronism thus removed was that the King (meaning the State in this Country) could do no wrong. It is a luxury which the country could no longer participate in after the coming into force of the 1979 Constitution. It is a prerogative, which as I said in the Kuti case, Bacon described as: –

“a garland of prerogatives woven around the pleadings and proceedings of the King’s suits”

which of course was preserved in our laws by virtue of the Interpretation Act, (Cap. 89) Laws of the Federation of Nigeria and Lagos 1958 (Cap. 89) S.45(1) a legislation which came into force on 9th November, 1939, as No. 27 of 1939. The section providing :

“subject to the provisions of this section and except in so far as other provision is made by any Federal Law, the common law of England and the doctrine of equity, together with the statutes of general applications that were in force in England on the first day of January, 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal Legislature, shall be in force elsewhere in the Federation.”

Now, the real, probably the only question that bothered the Court of Appeal was whether the cause of action arose before or after the date of commencement of the 1979 Constitution. I think this issue of “cause of action” weighed so much on the court because of the submission of Mr. Harris-Eze in his Brief who imported the case of F. S. Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C. 124 to the effect that the provisions of the 1979 Constitution are not applicable to any cause of action which accrued before the Constitution came into force.

The problem of the Court of Appeal, I believe is predicated on the decision of this Court which 1 believe is still valid, stated in the Uwaifo case as per Idigbe, J.S.C. that

“Clearly, by virtue of sections 6(6)(a), 6(6)(b) and 4(8) of the Constitution aforesaid, the courts have jurisdiction to determine issues of questions as to whether any law, including those unrepealed laws which were made between 15th January, 1966 and 1st October, 1979 (or the provisions thereof) is consistent with the provisions of 1979 Constitution and for the purpose of giving effect to it under the existing Constitution and for this purpose, but to the extent only, the courts can declare such a law or portions thereof invalid…”

Applying to this case this dictum, valid as it was in that case, the Court of Appeal then excluded this case from the application of the Constitution as earlier decided by it on the ground that the cause of action arose before the date of operation of the Constitution.

But no where did the Petitions of Right Act talk about date of cause of action. The Petition of Rights Act Itself does not create a cause of action. It only provides for the procedure to be followed when the events raised by the Act occur. It is adjectival not substantive in the sense of forming its own head of actions. When this was brought to the notice of Mr. Harris-Eze he quickly saw the point and confessed that it never occurred to him. That is the reaction of a good lawyer.

In the reason therefore, we have to examine the date of the commencement of the action. The case came to life, for the first time, on 9th April, 1980, well after the 1979 Constitution has rendered ineffective the Petitions of Right Act. It is caught, very firmly too, by the 1979 Constitution. The Petitions of Right Act has no force over It.

For these reasons. I allowed appeal of the plaintiff on 16th July, 1990. The award made by the learned trial judge, Atinuke Ige on 30th September, 1982, for N54,100.00 and which award was set aside by the Court of Appeal on 2nd March, 1987, is hereby reinstated. Incidentally, the Court of Appeal had, and commendably too, determined this amount to be correct, that is, calculated and decided upon by the learned trial judge. The Court of Appeal acted in the event of the Court being wrong in the determination in the law. And the Court is wrong. Costs awarded by the Court of Appeal were set aside.

Plaintiff was awarded the sum of N54;100.00. Costs were assessed as follows:

In the High Court – N400.00

In the Court of Appeal – N400.00

In this Court – N500.00

BELLO, C.J.N. I have read the reasons for judgment written by my learned brother, Eso, J.S.C. I am in complete agreement with him. The plaintiff who is the appellant in this appeal instituted the suit on 9th April, 1980 in the High Court without complying with the provisions of the Petition of Rights Act. Upon the interpretation of section 6(b) of the 1979 Constitution, which came into force on 1st October, 1979, the provisions of the Act appear to be inconsistent with the provisions of the section and, consequently, the Act became null and void by virtue of section 1(3) of the Constitution. The Court of Appeal held that since the cause of action had accrued before the Constitution came into force, the provisions of the Act applied and the trial court erred in law in entertaining the suit since the plaintiff had not complied with the procedure prescribed by the Act.

I agree with my brother, Eso, J.S.C., that the Court of Appeal erred in law in thinking that the date of the accrual of the cause of action was the determinant factor in the application of the Act. The crucial provisions of section 3 of the Act read:

“3. All claims against the Government of the Federation…………, being of the same nature as claims which before the commencement of the Crown Proceedings Act, 1947 ………… might in England have been preferred against the Crown by petition of right may, with the consent of the Attorney-General of the Federation be preferred in a High Court having original jurisdiction thereof ……………

It is clear the section deals with preferring a claim and, in other words, filing or instituting the claim. It does not deal with the date of the accrual of the cause of action which gives rise to the claim.

As shown earlier, the claim in the case on appeal was filed on 9th April, 1980 after the Constitution had come into force and in consequence thereof the provisions of the Act had become void. The plaintiff was therefore entitled, as he did to file his claim without complying with the procedure laid down by the Act.

Accordingly, we allowed the appeal, set aside the decision of the Court of Appeal and restored the judgment of the High Court with costs in favour of the plaintiff/appellant.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Eso, J.S.C. I am in complete agreement with him as it was for the same reasons that 1 allowed the appeal on the 16th day of July, 1990. However, I wish to add the following by way of emphasis only.

The facts of the case have been fully stated in the aforesaid judgment. It is, therefore, not necessary for me to repeat them here save to say that the action brought in the High Court of Oyo State by the appellant against the respondents was founded on an informal tenancy agreement and the cause of action pertained to that contract.

Sections 3 and 4 of the Petitions of Right Act, Cap. 149 of the Laws of the Federation of Nigeria, 1958 (as amended), which is the applicable law to this case, provide:

“3. All claims against the Government of the Federation or against any Ministry or department thereof, being of the same nature as claims which before the commencement of the Crown Proceedings Act, 1947 of the Parliament of the United Kingdom might in England have been preferred against the Crown by petition, manifestation or plea of right may, with the consent of the Attorney-General of the Federation, be preferred in a High Court having original jurisdiction in respect thereof or if the Supreme Court has such jurisdiction, in that Court, in a suit instituted by the claimant as plaintiff against such person as the said Attorney-General may designate, as defendant, for the purpose.

4.(1) The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of statement of claim in the court and the delivering of 2 copies thereof at the office of the Attorney-General of the Federation and no fee shall be payable on filing or delivering such statement.

(2) The decision of the Attorney-General of the Federation shall be conclusive and, if he gives his consent, one copy of the statement of claim with his fiat endorsed shall be returned to the court having original jurisdiction; and the claim shall be prosecuted in that court.” The combined effect of the provisions of these sections of the Act is that before commencing the action in this case, by a writ of summons, the appellant should, as a first step, file his statement of claim in the High Court and then deliver two copies of the statement of claim in the office of the 1st respondent. The 1st respondent would have studied the statement of claim and then would have taken one of two actions. That is either to give his consent for the appellant to commence the action, by his endorsing one of the copies of the statement of claim or refusing his consent, in which case the appellant could not have taken out a writ of summons against the respondents. However, neither of these happened in the instant case because the appellant, as plaintiff, did not follow the procedure under the Petitions of Right Act, Cap. 149.

This is a substantial point of law, even though pertaining to procedure in instituting action in court. The respondents ought to have raised the point in their statement of defence, as a special defence, but they did not. Order 23 rule 2 of the High Court (Civil Procedure) Rules, Cap. 46 of the Laws of Oyo State of Nigeria, 1978 provides:

“2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by judge who tries the cause at or after the trial.

Provided that by consent of the parties, or by order of the Court or a judge on the application of either the same may be set down for hearing and disposed of at any time before the trial.”

The point was only adverted to before the learned trial judge (19e, J.) in the course of summing up address by counsel for the respondents; and counsel for the appellant at the trial replied on the point. However, the learned trial judge omitted to address the arguments in her considered judgment. It was on appeal, by the respondents, to the Court of Appeal that the point was considered.

The Court of Appeal (per Uche-Onto, J.S.C. with Omololu-Thomas and Gambari, JJ.C.A. agreeing) rightly held:-

“The Petitions of Right Law (sic Act) by virtue of section 274(1) of the Constitution would be an “existing law” which remains part of the law of the land. To the extent however, that it purports to prevent an aggrieved party from taking direct action in court, it seems to me that it must be adjudged inconsistent with the provisions of the Constitution and to that effect void.”

and went on :

“Whilst counsel for the appellant (the defendant) has submitted that the cause of action in this case arose between 1978 and August, 1979 when the rents became due and payable, respondents counsel’s submission in his brief is that the important date is that on which the action was taken. Before us, in oral argument respondent’s counsel has submitted that the operative date when cause of action accrued is after the rent had been demanded and not paid i.e. after exhibit G was written on 23/11/79.”

before holding further, and I think, with respect, wrongly, as follows:

” It seems to me that the submission of appellant’s counsel is the correct position of the law. The cause of action therefore accrued before October, 1979. The Constitution of 1979 would then be inapplicable and the Petitions of Right Law (Act) would apply. It would therefore follow that the action of the respondent not having been commenced as provided by that Law should not have been entertained by the court below. The legal position is that where a special statutory provision is made for making a claim, that provision ought to be pursued in making it vide Lahan v. A. G: of the Western Region (1963) 1 All N.L.R. 26 at p.227.”

In the appeal before us two grounds were filed and they both complain against the decision of the Court of Appeal that the trial in the High Court was incompetent since that court lacked jurisdiction under the Petitions of Right Law of Oyo State and that the appellant should have commenced the proceedings in the High Court by adhering to the provisions of the Petitions of Right Act. Arising from these grounds of appeal four issues for determination have been framed in the appellant’s brief of argument. They read thus: –

“i. Should the plaintiff, now appellant have commenced his action against the respondents in the High Court, by serving them with writ of summons and not by way of Petitions of Right (sic) -?

The effect of non-compliance with sections 3 and 4 of the Petitions of Right Act, Cap. 149 (sic) Laws of Federation adopted by the Petitions of Right Laws of Oyo State, by first of all seeking the fiat of Attorney-General of the Federation, the 1st defendant in this case, whose decision shall be FINAL.

iii. Has the High Court jurisdiction in respect of an action taken out in court, after the commencement of the 1979 Constitution in powers vested under S.236 and S.6(6)(b) or has got its jurisdiction ousted by the inhibitive provisions in the Petitions of Right Law (sic) or Act.

Is the Petitions of Right Law or Act (sic) Constitutional, particularly in relation to provisions in respect of FAIR-HEARING.”

The respondents failed to file their briefs of argument, but their counsel, Mr. Harris-Eze was allowed to present their case orally.

It seems to me that the real question for determination in this appeal is: What is the effect of the Petitions of Right Act, Cap. 149 vis-a-vis the relevant provisions of the 1979 Constitution? Before dealing with the question it is necessary to correct the wrong impression manifestly held by the Court of Appeal and learned counsel for the appellant, Mr. Shonibare, that it is the Petitions of Right Law, of Oyo State, Cap. 88 of the Laws of Oyo State of Nigeria, 1978 that applied to this case. Although the Law and the Petitions of Right Act, Cap. 149 are virtually the same in their contents, there are vital differences. The latter, in sections 3 and 4 thereof which have been quoted above refers to the Attorney-General of the Federation while the former directs its provisions to the Attorney-General of Oyo State. As the action in the present case involves the Federal Government, then it is the provisions of the Petitions of Right Act, Cap. 149 that apply and not those of the Petitions of Right Law, Cap. 88 of Oyo State. The fact that the property which is the subject of the rent in dispute is situated in Oyo State and the action is brought in the High Court of Oyo State makes no difference whatsoever, since state courts have general jurisdiction under the 1979 Constitution to try Federal causes and apply Federal legislations-see sections 236 and 250 thereof. Furthermore, the Petitions of Right Act, Cap. 149 applies to state by virtue of its section 2 which provides –

“2. Claims by the Government of the Federation or a Regional Government or by any department of the government of the Federation or of a Regional Government against any private person shall be brought by the Attorney General of the Federation or of the Region as the case may be, or by any officer authorised by law to prosecute such claims on behalf of the Government.”

The phrase “Regional Government” is of course subject to modification under section 274 of the 1979 Constitution to be interpreted to mean the states of the Federation.

I now turn to the question which I have posed for determination. Section 6 subsection (6) (b) of the 1979 Constitution provides –

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

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

The intendment of these provisions is to confer general jurisdiction on the courts established by the 1979 Constitution and at the same time to provide access to the courts, so established, to persons who may have any content on “all matters as between them and government or any authority or any person. In contrast to this the provisions of sections 3 and 4 of the Petitions of Right Act, Cap. 149, which inhibit the taking out of a writ of summons against the Attorney-General intended, to some extent, to deny direct access to the Courts. It is only when the fiat is granted that access to the courts becomes unimpeded. It is, therefore, obvious that the provisions of section 3 and 4 of the Petitions of Right Act are inconsistent with the provisions of section 6 subsection (6)(b) of the 1979 Constitution and the Court of Appeal was right when it so held.

“(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

has now been suspended by the provisions of the Constitution (Suspension and Modification) Decree, 1984, No. 1 of 1984, its (i.e. section 1(3) of the Constitution), provisions were extant at the time the writ of summons was taken out by the appellant on the 9th day of April, 1980. In effect, as at that date, the provisions of sections 3 and 4 of the Petitions of Right Act, as they relate to the right to sue the Federal Government, were void in the light of the provisions of section 1 subsection (3) of the Constitution. As a result there was neither the necessity nor the need for the appellant to obtain the fiat of the Attorney-General at the time he took out the writ. The procedure by which the action was commenced on the 9th day of April, 1980 was therefore In order and was not tainted by any procedural Irregularity.

This notwithstanding the Court of Appeal held that Petitions of Right Act applied to the case on the ground that the cause of action arose before the 1st October, 1979 when the 1979 Constitution become operative. With respect, I think the Court of Appeal misunderstood the provisions of sections 3 and 4 of the Petitions of Right Act. The sections merely deal with the manner of commencing a suit against the Government of the Federation and its Ministers. The sections make no mention whatsoever of cause of action or the date when the cause of action arises. Consequently, it was a misconception by the Court of Appeal to hold that the provisions of section 6(6) (b) of the 1979 Constitution were inapplicable to the case. The questions as to when the cause of action arose and when it was commenced are matters of legislations that pertain to the limitation of action (such as the Limitation Act, 1966 No. 80 of 1966) which were not relied upon in the Court of Appeal and are, in any event, irrelevant to the question that arose under the Petitions of Right Act.

For these and the fuller reasons contained in the judgment read by my learned brother, Eso, J.S.C. the appeal succeeds. Happily, the Court of Appeal went on to consider, in the alternative, the appeal on its merits and affirmed the decision of the learned trial judge. In this regard I agree with the decision of the Court of Appeal. Accordingly, I set aside the decision of the Court of Appeal which held that the action brought by the appellant in the High Court was incompetent and in its place I restore, in its entirety, the judgment of the learned trial judge which was given in favour of the appellant with order as to costs as contained in the judgment read by my learned brother, Eso, J.S.C.

BELGORE, J.S.C.: I allowed this appeal on 16th day of July, 1990 and reserved my ruling to today. I now give my reasons, based on the lucid review of events in the case and exposition of the Constitution and its effect on Petitions of Right Act by my learned brother, Eso, J.S.C. with which I am in full agreement. For the same reasons I allowed this appeal and made the same consequential orders.

WALI, J.S.C.: I have had the privilege of reading in advance, a copy of the Reasons for Judgment of my learned brother, Eso, J.S.C., which has just been delivered. I agree entirely with the reasoning and conclusions contained in the Reasons for Judgment. I just want to add these by way of emphasis.

The facts of this case have been well stated in the lead Reasons for Judgment and therefore need no further repetition.

Before the High Court of Ibadan Judicial Division of the High Court of Justice of Oyo State of Nigeria, the appellant as plaintiff in the person of Alhaji Chief R. B. Bakare sued –

(1) the Honourable Attorney-General of the Federation;

(2) the Accountant-General of the Federation;

(3) the Permanent Secretary Federal Ministry of Works and Housing,

claiming against them, the sum of N138,890.40k (one hundred and thirty eight. thousand, eight hundred and ninety Naira and forty kobo) being rent in respect of plaintiff’s property known as TENSON HOUSE, situate at 9/10 Ring Road, Ibadan, let to the defendants at Ibadan for the period 1978/1979; 1st August, 1979 to 31st July, 1980.

PARTICULARS OF CLAIM

(a) Arrears of Rent for the years 1978 to 1979 … N42,445.20

(b) Rent for the period 1st August 1979 to 31st July, 1980… N96.445.20

Total ………. N138.890.40 After protracted adjournments the case proceeded to trial on the merits on pleadings filed and exchanged.

At the trial the appellant gave evidence and called two witnesses. For the defence, the 2nd defendant and one other witness also testified.

The learned trial judge gave a painstaking consideration to the evidence and the issues raised and concluded:

“The defendants have now become a yearly tenant. Under the law either party must give at least six months notice but this does not preclude the parties from contracting for the determination of any notice of whatever length and wherever expiring that they think fit. In the absence of any agreement by the parties in this case to the contrary, I hold that the defendants are bound to give plaintiff six months notice to quit. They did not do so in this case and after purporting to surrender the keys of the property to the plaintiff they continued to remain in possession by putting their own interior decorator on the premises for two months after 31/7/79. This is an act consistent with continuance of tenancy – previous surrender of keys notwithstanding. Exhibit H shows and confirms the defendants’ acknowledgement of having extended their stay beyond 31/7/79. I therefore hold that the plaintiff is entitled to another year’s rent less the sum of N5,000 for non installation of a lift.. This amounts to N54,100.”

The learned trial judge entered judgment against the defendants/respondents in favour of the plaintiff/appellant in the sum of N54,100.00. The respondents appealed against the judgment to the Court of Appeal.

In the Court of Appeal, the issue of the application of Petitions of Right procedure to the action was the first issue to be dealt with, wherein Uche Omo, J.C.A. said:

He answered the question –

Whilst counsel for the appellant (the defendant) has submitted that the cause of action in this case arose between 1978 and August, 1979 when the rents became due and payable, respondents counsel’s submission in his brief is that the important date is that on which the action was taken. Before us, in oral argument respondent’s counsel has submitted that the operative date when cause of action accrued is after the rent had been demanded and not paid i.e. after exhibit G was written on 23/11/79.

It seems to me that the submission of appellant’s counsel is the correct position of the law. The cause of action therefore accrued before October, 1979. The Constitution of 1979 would then be inapplicable and the Petitions of Right Law would apply. It would therefore follow that the action of the respondent not having been commenced as provided by that Law should not have been entertained by the court below. The legal position is that where a special statutory provision is made for making a claim, that provision ought to be pursued in making it vide Lahan v. A.-G. of the Western Region (1963) 1 All N.L.R. 26 at p.227. If I am right, then this appeal should immediately be allowed, the judgment of the court below set aside, and the action struck out as incompetent.”

Having done that, the learned Justice of the Court of Appeal then proceeded to consider the appeal on its merits and at the end of the exercise, concluded that

“Respondent’s counsel has rightly submitted that the law is that such a tenancy has to be determined by the giving of a valid 6 months notice. In default of agreement, a yearly tenancy can be determined by at least half a year’s (six months) notice expiring at the end of the completed year of the tenancy vide (1) Sidebotham vs. Nicholson (1902) 1 K. B.

In this case therefore a valid notice should have been given latest on the last day of February, 1979 to expire on 31/7/79. Not only was it not given then, or on 31/7/79, but appellants remained on the premises for another two months. I therefore agree with the learned trial judge that no valid notice of termination of the tenancy was given by the appellants.

What then is the effect of the “holding over” by the appellants in the premises for another two months, for which they paid pro rata rent on the basis of the original agreed rent? Counsel for the appellants has submitted that what is created by this situation is a tenancy at will which arises: –

“…………. whenever a tenant with the consent of the owner occupies land as tenant ……… on terms that either party may determine the tenancy at any time…….. vide Law of Real Property by Megarry and Wade 4th Edition at p.638. I am afraid I cannot accept this submission because the tenants in this case did not remain on the premises with the consent of the owner. I think it would be more correct to hold that what was created was a tenancy on sufferance i.e. holding over without the consent of the landlord.

Contrary to the submission of appellant’s counsel the obligation arising therefore, in the absence of consent would be the payment of 2 months rent. Instead, as found earlier, the appellants have to pay due rent having failed to give the appropriate notice. This in the finding of the trial judge, with which I agree, is a year’s rent for the period 11 /8/79 – 31/7/80. This must be calculated on the basis of the old rent which is N54,100.00.

To conclude on the merits, should my decision that this action is incompetent be wrong, I would dismiss the appeal and affirm the judgment of the learned trial judge in the court below with costs to the respondent assessed at N250.00 against the 1st and 2nd appellants only.”

It is evident from the record before this court that the issue of the application of Petitions of Right procedure was first raised by the learned counsel for the respondents in his final address before the trial court at the conclusion of his evidence. It was not pleaded nor raised by way of preliminary objection.

In his submission before this court learned counsel for the appellant, Olatunde Shonibare conceded that the Petitions of Right Act, Cap. 149, Laws of the Federation of Nigeria and Lagos, 1958, is the applicable law and not the Petitions of Right Law, Cap. 88, Laws of Oyo State, 1978.

The relevant provisions of the Petitions of Right Act are sections 3,4 and 5 which I reproduce hereunder:-

“3. (1)All claims against the Government of the Federation or against any Ministry or department thereof, being of the same nature as claims which before the commencement of the Crown Proceedings Act, 1947 of the Parliament of the United Kingdom might in England have been preferred against the Crown by petition, manifestation or plea of right may, with the consent of the Attorney-General of the Federation, be preferred in a High Court having original jurisdiction in respect thereof or if the Supreme Court has such jurisdiction, in that Court, in a suit instituted by the claimant as plaintiff against such person as the said Attorney-General may designate, as defendant, for the purpose.

(2) In this section. “Supreme Court” means a High Court or the Federal Supreme Court.

The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of a statement of claim in the court and the delivering of 2 copies thereof at the office of the Attorney-General of the Federation and no fee shall be payable on filing or delivering such statement.

The registrar shall forthwith transmit the statement of claim to the Secretary to the Governor-General and Council of Ministers and the same shall be laid before the Governor-General. In case the Governor-General shall grant his consent as afore said, the statement of claim shall be returned to the court, with the fiat of the Governor-General endorsed thereon, and the claim shall be prosecuted in the court.”

Also the relevant provisions of the 1979 Constitution are sections 6(6) (b), 33(1) and 277(1) and which are:

“(6) The judicial powers vested in accordance with the foregoing provisions of this section:

(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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

“33.(1)In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartially.”

“277.(1)In this Constitution, unless it is otherwise expressly provided or the context otherwise requires :

“government” includes the Government of the Federation, or of any State, or of a Local Government Council or any person who exercises power or authority on its behalf.”

It is pertinent to mention here that the action was filed in the High Court on 9th April, 1980. The date of filing of the action is the determinant factor as to whether or not the Petitions of Right procedure would apply.

The Constitution of Nigeria, 1979 came into force on 1st October, 1979; and as the action was filed on 9th April, 1980 the relevant provisions of the Constitution, to wit – sections 6(6)(b), 33(1) and 277(1) apply to it.

The provisions of sub-section (6)(b) of section 6 and sub-section (1) of section 33 of the 1979 Constitution read together, vest in a person an unabridged right of access to a court established under section 4 of the Constitution or any tribunal, having jurisdiction in the matter, for the determination of any question as to his civil rights or obligations arising between him and any government within the Federation or any authority or any other person. Section 33 (1) of the Constitution In particular nullifies any law that accords to any government, be h Federal, State or Local government, or any person exercising authority or power on behalf of any of them, the power to abridge the right of any person of access to the court to sue such a government or person without a fiat first being sought and obtained. The Constitution is the supreme law and supersedes any other legislation which is contrary to it. To that extent the constitutional provision shall prevail. Section 277(1) of the Constitution in which “government” Is defined includes the Federal Government.

It is therefore my conclusion that the procedure of Petitions of Right as contained in the Petitions of Right Act, Cap. 149, Laws of the Federation of Nigeria and Lagos, 1958 is inconsistent with sections 6(6)(b) and 33 (1) of the 1979 Constitution and to that extent, null and void.

There is no doubt that this is a significant development in the Nigerian legal history, as it marked a departure from the old procedure under the previous constitutions which were parliamentary and modeled on the British system. Even in England now, the Petitions of Right procedure has been abolished for almost all purposes, by the Crown Proceedings Act, 1947.

The judgment of the Court of Appeal in which it allowed the appeal and set aside the judgment of the trial court on grounds that the technical procedure of Petitions of Right applied to the action is hereby set aside. The appeal is allowed. The learned justice of the Court of Appeal has considered the case on its merits and concluded that the appeal lacked merit and he dismissed it. I agree with this verdict and accordingly uphold ft.

It is for these and the fuller reasons contained in the lead Reasons for Judgment of my learned brother, Eso, J.S.C., that I allowed this appeal on 16th July, 1990.

OLATAWURA J.S.C. I have had a preview of the judgment of my learned brother, Eso, J.S.C. just delivered. I agree with his reasoning and conclusions.

When this appeal came before us on 16th July, 1990 I allowed the appeal and I indicated I would give my reasons today. I now give my reasons.

The appellant who was the plaintiff in the Court of trial i.e. High Court of Oyo State in his indorsed Writ of Summons claimed from the defendants, now respondents in this court as follows:

“The plaintiff’s claim against the defendants is the sum of N138.890.40k (One hundred and thirty-eight thousand, eight hundred and ninety naira forty kobo) being rent in respect of plaintiff’s property known as TENSON HOUSE, situate at 9/10 Ring Road, Ibadan, let to the defendants at Ibadan for the period 1978/1979;

1st August 1979 to 31st July 1980.

PARTICULARS OF CLAIM:

(a) Arrears of Rent for the 1978 to 1979 = N42,445.20

(b) Rent for the period 1st August, 1979 to 31st July, 1990 =N96,445.20

TOTAL = N138,890.40

ALTERNATIVELY,

The plaintiff claims the said sum of N138,890.40 as damages for Breach of the Tenancy Agreement.”

Pleadings were ordered and filed. Evidence was led on both sides. It was during the address of the learned counsel for the defendants at the trial that the issue of jurisdiction was raised. It was based on the non-compliance with the Petitions of Right Law. The learned trial judge made no reference to this aspect of the address and concentrated on the merits of the claims before the court. Judgment was entered in favour of the plaintiff for the sum of N54,100.00 with costs assessed at N40.00. The defendants were dissatisfied with the judgment and appealed to Ibadan Division of the Court of Appeal.

Since what is in issue in this court is whether the Petitions of right Law still lies having regard to the Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as the 1979 Constitution) it will no longer be necessary to refer to all the grounds of appeal and issues raised in the lower court except the one dealing with the Petitions of Right Law. It was submitted before the lower court by the appellants in that court who are now the respondents in this court that by virtue of the Laws of Oyo State of Nigeria. 1978, the jurisdiction of the Court has been ousted in that the plaintiff/respondent in that court failed to follow the Petitions of Right Laws of Oyo State. It is appropriate to state at this stage that the proper law is the Petitions of Right Act, Cap. 149, Laws of the Federation notwithstanding that the provision of the Petitions of Right Law of Oyo State are the same with those of the Laws of the Federation since the claims were against the Government of the Federation, the Accountant-General of the Federation and the Permanent Secretary, Federal Ministry of Works and Housing. See Legal Notice 112 of 1964 which amended section 3 of the principal law. The submission of learned counsel for the appellant in the lower court can be found on page 193 of the record of appeal. Put briefly it is that the procedure laid down by the Petitions of Right Law of Oyo State was not followed and that the 1979 Constitution could not have saved the situation in that the cause of action arose before the 1979 Constitution came into operation and the case of F. S. Uwaifo v. Attorney-General of Bendel State & Ors. (1982) 7 S.C. 124 was cited in support of that proposition. In dealing with this issue the Court of Appeal per Uche Omo, J.C.A.said:

“I would hold that the Petitions of Right Law cannot prevent the respondent in the absence of any other disability, from commencing an action after October, 1979 to recover rents due to him,”

I agree.

However the lower court on procedural ground ruled that since the cause of action accrued before the 1979 came into existence, the 1979 Constitution would not be applicable and consequently the Petitions of Right Law would apply. The judgment of the trial court was set aside and the action was struck out as being incompetent. The lower court relied on Lahan v. Attorney-General of the Western Region (1963) 1 All N.L.R. 226. The lower court again, in the alternative considered the merits of the appeal and dismissed the appeal if the issue of Petitions of Right Law was inapplicable.

The plaintiff now the appellant in this Court has appealed against the decision of the Court of Appeal. The appeal was argued on the only additional ground of appeal which without the particulars reads:-

“That the learned justices of Appeal Court erred in law when they held that the plaintiff should have commenced his action by way of Petitions of Right (sic) and not by Writ of Summons, when the same is not mandatory.”

The appellant filed a brief. It is necessary to point out that it is a waste of time in writing a brief meant for the court to include in the said brief the grounds of appeal filed and argued in the lower court as these are embodied in the record of appeal forwarded to this court. See pages 123-124 of the Record of Appeal. In this particular appeal no reference was made to these grounds in this court as the only ground of appeal filed and argued before us is the one I have set out above. The bulkiness of a brief devoid of merit and which in addition contains irrelevant matters is a waste of the precious time of the court. A good brief is the one that consists of relevant facts and laws which are necessary for the determination of the appeal.

The facts as found by the learned trial judge and confirmed by the Court of Appeal are not in dispute, it is the procedure adopted by the appellant that has given rise to the appeal. This is clearly stated in the appellant’s brief thus:

‘The issue for determination in this case had been narrowed down as it all hinges on one particular matter which is THE PROCEDURE for the commencement of the action in the High Court.”

In settling the issues for determination. I will set down only two of the issues raised by the appellant and which are germane to this appeal. They are:

Should the plaintiff, now appellant have commenced his action against the respondents in the High Court, by serving them with writ of summons and not by way of Petitions of Right? (sic)

Has the High Court jurisdiction in respect of an action taken out in court, after the commencement of the 1979 constitution in powers vested under S. 236 and S. 6(6)(b) or has got its jurisdiction ousted by the inhibitive provisions in the Petitions of Right Law or Act (sic).”

A great deal of the appellants brief deals with the interpretation of the word “May” as it appears in sections 3 and 4 of the Petitions of Right Law. This is unnecessary having submitted that the cause of action arose after the 1979 Constitution.

Unfortunately and in respect of an important appeal which is based on the interpretation of the 1979 Constitution, the Respondents did not file a brief. Mr. Harris-Eze the Director of Civil Litigation sought leave to present an oral argument. This was granted: See Order 6 rule 9(1) of the Supreme Court Rules, 1985. Having failed to cross the first hurdle that the cause of action arose before the 1979 Constitution, he did not contest the appeal again. It was a wise decision.

It is manifest from the lead judgment of Uche, J.C.A., that the Court of Appeal was of the firm view that the Petitions of Right Law can no longer apply in view of the provision of the 1979 Constitution; but the Court was of the view that since the cause of action occurred before the 1979 Constitution, and on the authority of F. S. Uwaifo v. Attorney-General of Bendel State & Ors. (1982) 3 N.C.L.R. 296, the 1979 Constitution has no retrospective effect. I think the lower court was in error.

In the lower Court, there was this submission that the cause of action arose after 1979 i.e. from the date there was a demand of the debt. There is ample justification for this submission. It is therefore no longer necessary to wade into this controversy based on cause of action in that it is the applicability of the Petitions of Right Law that is in issue. The finding of the learned trial judge that the respondents extended their tenancy beyond 31.7.79 has not been challenged.

Sections 6(6)(b) and 236 of the 1979 Constitution have removed the clog which the Petitions of Rights Law placed in the way of a litigation with regard to access to the Court. The inhibitive provisions in the Petitions of Right taw have denied justice to those who had a cause of action against the state. The apparent injustice is implicit in the provisions of section 4(2) which gives a discretion to a proposed defendant (the 1st respondent in this appeal to refuse or give his consent to an action before it could be filed. It is a fetter on administration of justice. The Constitution i.e. section 6(6)(b) which gives unrestricted access to the courts provides:

(6) The judicial powers vested in accordance with the provisions of this section

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

In the circumstances the appeal is allowed, the judgment of the learned trial judge (Ige, J.) is hereby restored. I will abide by the order of costs contained in the lead judgment of my learned brother, Eso, J.S.C.

AKPATA, J.S.C. On the 16th day of July, 1990. I allowed the appeal of the plaintiff and made consequential orders as to costs in respect of the proceedings in the High Court, the Court of Appeal and this court. I indicated then that I would give my reasons for allowing the appeal today, 14th September, 1990.

Having had a preview of the reasons for the judgment of my learned brother, Eso, J.S.C., and being in agreement with his reasoning and conclusion reached by him, I find it unnecessary to go over the aspect of the appeal sufficiently covered by him. I shall however treat one of the points arising from the two issues for determination.

The essential facts of the case giving rise to this appeal have been clearly stated in detail in the reasons for judgment of my learned brother, Put briefly, the claim of the plaintiff against the defendants, the Attorney-General and the Accountant-General of the Federation, for rent in respect of his landed property was found established by the learned trial judge.

The defendant being dissatisfied with the decision appealed to the Court of Appeal, Ibadan Division, basing his complaint on six grounds. The fourth ground of appeal, which is relevant here, was that the learned trial judge erred in law in not holding that the procedure adopted by the plaintiff in bringing the action was wrong in law in that the action sounded in contract and ought to have been commenced by way of a petition of right requiring the fiat of the Attorney-General of the Federation, the first defendant in the action.

In allowing the appeal, Uche Onto J.C.A., (concurred in by Omololu Thomas and Sulu-Gambari, JJ.C.A.) observed thus:

‘The Petitions of Right Law, by virtue of S. 274(1) of the Constitution would be an “existing Law” which remains part of the law of the land. To the extent that it purports to prevent an aggrieved party from taking direct action in court, It means to me that it must be adjudged inconsistent with the provisions of the Constitution and to that effect void.”

The learned justice of the Court of Appeal then drew attention to the fact that the cause of action arose between 1978 and August, 1979 when the rents became due and payable. Though satisfied that the action was instituted on 9th July, 1980, he was however of the view that since the cause of action accrued before October, 1979 when the 1979 Constitution came into effect, the said Constitution was inapplicable and that the Petition of Right Law or Act applied. He therefore concluded that since the action of the plaintiff was not commenced as provided by the said Law or Act, it was incompetent and that the trial High Court ought to have struck it out. The judgment of the trial court was accordingly set aside.

The two grounds of appeal filed by the plaintiff against the judgment of the Court of Appeal are to the effect that the Court, of Appeal erred in law in holding that the Petitions of Rights Act was applicable:

When the action commenced after October, 1979 and in view of the provisions of section 6(6)(b) of the 1979 Constitution; and

Since section 3 of the Petitions of Right Act or Law only gave the plaintiff the option to commence his action by way of petition of right.

The two relevant issues arising from the two grounds of appeal therefore are:

Whether an action instituted after the 1979 Constitution had come into effect is subject to the Petitions of Right Act even though the cause of action accrued before the date of commencement of the said 1979 Constitution.

Whether the use of the word “may” in section 3 of the Petitions of Right Act, Cap. 149 Laws of the Federation of Nigeria, 1958 gives a plaintiff the option to either proceed under the Act or initiate an action by a writ of summons without seeking the consent of the Attorney-General.

My learned brother, Eso, J.S.C. has adequately dealt with the first issue. It is the second issue which has attracted my attention and calls for consideration. It is to be noted that learned counsel for the plaintiff/appellant adopted his brief of argument in its entirety, although proffered oral argument only in respect of the first issue.

It is the contention of the appellant, through his counsel Mr. Shonibare, that by virtue of section 3(1) of Petitions of Right Act, a plaintiff had the option either to seek the fiat of the Attorney-General or to institute his action by way of a writ of summons without seeking the consent of the Attorney-General. In effect the appellant contends that whether or not the action was instituted before the 1979 Constitution came into effect, an action initiated by a writ of summons was competent since section 3(1) was only permissive.

It is true as stated at page 227 Volume 3 of ‘Words and Phrases Legally Defined”, to which Mr. Shonibare drew our attention, that the word “may” always means may. “May” Is a permissive or enabling expression: but there are cases in which for various reasons, as soon as the person who Is within the statute Is entrusted with the power, It becomes his duty to exercise it.” Also as pointed out in Halsbury’s Laws of England 3rd Edition Volume 36 page 433 “the use of the word “may” prima facie conveys that the authority which has the power to do such act has an option either to do it or not to do it. What this boils down to in respect of Petitions of Right Act is that a claimant was at liberty, If he chose to pursue his claims by way of petition of right which was the only venue open to him to seek redress. It does not imply, as Mr. Shonibare would like this court to hold, that a claimant had the option to proceed by way of a petition or by means of a writ of summons.

The history of English Law shows that the Crown could, as a rule, only be sued by petition of right in certain cases and no petition of right could be brought without the fiat of the Attorney-General. Indeed by English common law no proceedings to enforce a remedy for tort, could lie against the crown, not even by petition of right. A claim could not be made against the Crown by a writ which asserted a legal right to redress. A legal right did not lie against the Crown.

In the appellant’s brief of argument, Mr. Shonibare referred to section 3 and 4(2) of the Petitions of Right Act. Due to over sight, I think, he made no reference to section 4(1) which reads:

” The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of a statement of claim in the court and the delivering of two copies thereof at the office of the Attorney-General of the Federation………..

It can be seen that a claimant was specifically precluded from proceeding against the Government by a writ of summons. The liability of the State in this country before October, 1979 was the same as that of the position of the Crown in England at common law before the commencement of the Crown Proceedings Act, 1947 in England. Before section 6(6)(b) of the 1979 Constitution came into effect, a claimant had no such legal right to redress except with the consent of the Attorney-General. Indeed, if as contended by learned counsel for the appellant, a plaintiff had the option to proceed either by way of petition of right or by writ of summons such option would render the petition of right process almost meaningless as no one would opt for it because it was in the discretion of the Attorney-General, an adversary of the claimant, to permit him to bring his action or not, and that discretion was sometime abused.

It is clear to me that the only option open to a claimant before the 1979 Constitution came into effect, as provided by section 3 of the Petition of Right Act, was the option to ‘lake it or leave it” and not the option to “pick and choose”. It was not a choice involving the acceptance of one and the rejection of the other. The position therefore is that if the appellant had instituted his action by a writ of summons before the 1979 Constitution came into effect, it would have been Incompetent. There is no merit in ground two.

This appeal however succeeds on the basis of the first ground of appeal. This is so because the Petitions of Right Act which was an anachronism in our statute book, as rightly observed by my learned brother Eso, J.S.C., has been removed by sub-section (6) (b) of section 6 of the 1979 Constitution. The pre-1947 proceedings by petition of right or monstraus de droit to recover property from the Crown in England and for specific injuries to private persons, and which was made to pollute our statute book by its adoption by the Petitions of Right Act, were begun by petition or bill and depended on the King’s grace.

What was regarded as a reform of the procedure upon a petition of right by the Petitions of Right Act of 1860 in England and the decisions of the English courts in the 19th and early 20th centuries that a petition of right lay for breach of contract (see Thomas v. The Queen (1874) L. R. 10 Q.B. 31) and for a breach of statutory duty (see Attorney-General v. De Keyser’s Royal Hotel (1920) A.C. 506), no doubt enhanced the legal position of the subject, to a certain extent, from the arbitrariness of servants of the Crown. This half-way measure introduced by a number of Petitions of Right Act and case law in England before 1947, and adopted by this country long after England had discarded it, is now overridden by section 6(6)(b) of the 1979 Constitution. This section of the Constitution has gone the whole hog to give a breath of fresh air to the legal principle of the equality of the citizen and the state before the law.

The legal position that any action instituted after the 1979 Constitution had come into effect cannot be encompassed by the Petitions of Right Act, regardless that the cause of action arose before the said Constitution came into being, has been lucidly treated by my learned brother, Eso, J.S.C. I have nothing useful to add. As for these reasons that I allowed the appeal of the plaintiff and set aside the judgment of the court of appeal on 16th July, 1990. 1 adopt the order of my learned brother as to costs which is in line with the order I made on the date the appeal was allowed.

Appeal allowed.