3PLR – IGBOKWE V. UDOBI

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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LAWRENCE IGBOKWE AND OTHERS

V.

CHIEF J. AGBA UDOBI AND OTHERS

COURT OF APPEAL, ENUGU DIVISION

CA/E/40/90

(THURSDAY, 16^TH JANUARY, 1992)

3PLR/1992/47  (CA)

 

OTHER CITATIONS

3 NWLR (Part 228) 214

 

BEFORE THEIR LORDSHIPS

FRANCIS OLISA AWOGU, J.C.A.

GEORGE ADESOLA OGUNTADE, J.C.A.

SAMSON ODEMWINGIE UWAIFO, J.C.A.

 

REPRESENTATION

C. Chukwudebelu (with him, J.N. Onochie) ‑ for the 1st to 7th Appellants

M.T.N. Onwugbufor, Ministry of Justice, Anambra State, (with him, N.C.Okonkwo (Miss) Legal Officer, Ministry of Justice, Anambra State ‑ for the 8th Appellant.

R. Ulasi ‑ for the Respondents

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

ACTION ‑ Institution of action ‑ Fact that plaintiffs suit may fail ‑ Whether justification for denial of hearing of the action.

CONSTITUTIONAL LAW ‑ Constitution of the Federal Republic of Nigeria, 1979 sections 7(1) and (S) paragraph 1(a) and (e) of the Fourth schedule thereof ‑ Purport of.

CONSTITUTIONAL LAW ‑ Local Government Council ‑ Establishment and functions ‑ Constitution of the Federal Republic of Nigeria, 1979 sections 7 (1) and (5) and paragraph 1(a) & (e) of the Sixth Schedule thereof

COURT ‑ Jurisdiction of court to hear suit ‑ Whether ousted by fact that plaintiffs suit may fail.

INTERPRETATION OF STATUTES ‑ Local Government Law of Anambra State 1976 ‑ Validity of ‑ Section 55(a) thereof ‑ Whether inconsistent with provision of the 1979 Constitution.

JUDGMENT AND ORDER ‑ Declaratory judgment ‑ Nature of

JUDGMENT AND ORDER ‑ Declaratory judgment ‑ Power of trial court to make

‑ Whether confined only to cases where the plaint ff has a subsisting cause of action.

JURISDICTION ‑ Jurisdiction of court to hear suit ‑ Whether ousted by fact that plaintiff suit may fail

 

MAIN JUDGEMENT

OGUNTADE, J.C.A. (Delivering the Leading Judgment);

The suit out of which this appeal arose had been commenced at Awka High Court by the respondents in this appeal (as plaintiffs) against the 1st to 7th defendants/appellants. Later, the 8th respondent sought and was granted leave to be joined as the 8th defendant.

 

By their statement of claim, the plaintiffs claimed against the defendants as follows:

 

“(a)    Declaration that the plaintiffs are entitled to the control and man agreement of the Ifite‑Ukpo Motor Park to the exclusion of the defendants.

 

(b)     An order for account of all monies collected by the defendants at the Ifite‑Ukpo Motor Park from 9th June, 1986 until judgment and payment of same over to the plaintiffs.

 

(c)     Perpetual injunction restraining the defendants by themselves or their agents or privies from further interference with the plaintiffs’ control and management of Ifite‑Ukpo Motor Park.”

 

The 1st to 7th defendants (i.e present appellants) on 9‑2‑87 brought an application for an order that the:

 

“Plaintiffs’ suit be dismissed without answer upon question of fact being required from the defendants on the grounds of law and equity.”

 

The grounds of law relied upon for bringing the application to dismiss plaintiffs’ suit were stated to be:

 

“i.      The court has no jurisdiction to make any order granting the reliefs ‑ prayed for by the plaintiffs in paragraph 5 of their statement of claim.

 

1. The plaintiffs have no locus standi and are incompetent to bring the action.

 

iii.      The plaintiffs’ statement of claim failed to disclose any legally enforceable right vested on the plaintiffs.

 

1. The statement of claim discloses no cause of action.

 

1. The statement of claim discloses no justiciable issue of fact upon which the court could exercise its jurisdiction. ‑

 

1. The substance of the action and the relief sought are illegal and void.”

 

In support of the application, the 1st defendant deposed to an affidavit. Paragraphs 3,4,5,6,7 and 8 of the said affidavit read thus:

 

“3.     That this honourable court on 29/1/87 ordered pleadings in this suit giving the plaintiffs 7 days to file their statement of claim and 4 days to the defendant to file their statement of defence.

 

4. That the plaintiffs have on 4/2/87 filed their statement of claim in court.
5. That we have seen the plaintiffs’ statement of claim and the same explained to us by our solicitor.

 

6. That our solicitor has informed us and we verily believe him that legal and equitable defence to the plaintiffs’ action are available to us in this suit.

 

7. That on our solicitor’s advice, we have restrained ourselves from filing our statement of defence until this our application is disposed of.

 

8. That our solicitor informed us and we verily believe him that our application can dispose of the plaintiffs’ action with finality.”

 

Counsel for both parties argued for and against the application. On 8th

 

Its application to be so joined. Mr. M.T.N. Onwugbufor, of counsel for the 8^th defendant also addressed the court. He supported the application to dismiss plaintiffs’ suit. Uyanna 3 on 21‑9‑87, in a well considered ruling dismissed the application by the 1st to 7th defendants that plaintiffs ‘suit be dismissed. The 1st to 7^th defendants have now appealed to this court against the order dismissing their application. They brought four grounds of appeal. It is not necessary to set out these grounds as the issues for determination formulated by the appellants in their brief adequately reflect the grounds of appeal raised. The issues were stated thus:

 

“1.     Whether the lower court was right in holding that it has jurisdiction to determine the suit on the grounds that the court’s jurisdiction was not ousted by the Constitution when from the statement of claim, the suit is either incompetent or improperly constituted by virtue of the fact that the control and management of the motor park were vested by Law on the 8th defendant.

 

2. Whether having regard that the power of control and management of the motor park was vested in the 8th defendant by law, the plaintiffs have locus standi to institute an action asking for a declaration that they are entitled to the management and control of the motor park

 

3. Whether if the plaintiffs have no locus standi they have disclosed a reasonable cause of action and vice versa.”

 

In the appellants’ brief filed, it was argued that since under the fourth schedule of the 1979 Constitution, the control and management of a motor park were vested in the 8th defendant as a Local Government, the lower court lacked jurisdiction to grant the declaration sought by the plaintiffs to the effect that they were entitled to the control and management of the Ifite‑Ukpo Motor Park in Njikoka Local Government Area. The appellants argued that the court lacked jurisdiction as the action was improperly constituted. The cases of Oloriode v Oyebi (1984)1 SCNLR 390; Ekpere v Aforije (1972)1 All NLR.(Pt. 1)220 and Onwunalu v Osademe (1971) 1 All NLR (PtA) 14 were relied upon in support of this contention.

By way of extension of this argument, the appellants contended that since the action was not properly constituted, the plaintiffs were without a standing to pursue their action. The appellants pointed out that since the 8th defendant had deposed to an affidavit that it did not grant an approval to the plaintiffs to control and manage Ifite‑Ukpo Motor Park, the court could not make the declaration sought as the effect of such declaration would derogate from the Constitutional power to manage and control a Motor Park vested in the 8th defendant. The cases of Merchant Bank Ltd.v Federal Minister of Finance (1961) All NLR 598; (1961) 2 SCNLR 272 and Adigun v Attorney‑General of Oyo State (1987)1 NWLR (Pt.53) 678 were relied upon in support of this argument. Finally, the appellants argued that if the plaintiffs lacked a locus standi to pursue their suit, the statement of claim filed by the plaintiffs would not disclose a cause of action ‑ Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 and Drummond Jackson v British Medical Association (1970) 1 All ER 1098.

 

The 8th defendant in its respondents’ brief filed generally supported the arguments canvassed for the appellants. The 8th defendant made the point that if it was clear on the statement of claim that the declaration sought by the plaintiffs could not be granted, the lower court had no need to go into a trial of the issues ‑ Tukur v Government of Gongola State (1989)4 NWLR (PtA 17) 517.

 

The plaintiffs/respondents in their brief pointed out that the plaintiffs’ suit was in respect of matters within the court’s jurisdiction under Sections 6 (6) (b) and 236 (1) of the 1979 Constitution. It was argued that the fourth schedule of the 1979 Constitution which puts the control and management of a motor park under a Local Government Council was only directory and not mandatory. It did not mean that individuals and other bodies could not operate in that area. The court, it was argued, had a discretionary power to make a declaratory order. The mere fact that a suit might fail was no reason to say that a court had no jurisdiction to hear the suit. Finally, counsel referred to paragraphs of the plaintiffs statement of claim which according to him showed that the plaintiffs had a locus standi to bring the suit and also that they had a reasonable cause of action.

 

In this judgment I must observe preliminary that the arguments of the appellants are nearly by way of a syllogism. The foundation or premises of the syllogy is the assertion that the fourth schedule of the 1979 Constitution vests the control and management of a Motor Park on a Local Government; and that being so, a declaration cannot be made in favour of the plaintiffs as to the control and management of the Ifite‑Ukpo Motor Park. The conclusion or deduction which appellants urged the lower court to draw and which they are also pressing

H on this court is that there was no reasonable cause of action or that the suit of the plaintiffs was incompetent and further that the suit was not properly constituted.

 

I have found it irresistible therefore in this judgment to first examine thoroughly the foundation or premises relied upon by the appellants for their arguments. Section 7 (1) of the 1979 Constitution guarantees the existence of democratically elected Local Government Councils. And Section 7 (5) of the Constitution provides:

“5.     The functions to be conferred by law upon Local Government Councils shall include those set out in the fourth schedule to this Constitution.”

 

And paragraph 1 (a) (e) of the Fourth Schedule provides:

 

“I.      The main functions of a Local Government Council are as follows:‑

 

(a)     the consideration and the making of recommendations to a state commission on economic planning or any similar body on ‑

 

(e)     establishment maintenance and regulation of markets, motor parks and public conveniences.”

 

It is clear that the fourth schedule of the 1979 Constitution only sets out the functions of a Local Government Council. There is no attempt made thereunder to define or set put how a Local Government Council shall perform or discharge the functions allotted to it.

 

Section 55(a) of the Local Government Law 1976 Anambra State provides:

 

55. Subject to the provisions of this Edict or any other enactment, a Local Government shall be responsible for and have power to make bye‑laws; in respect of all or any of the following matters:‑

 

(a)     market and motor vehicle parks.”

 

Although the 1976 Local Government Law was in existence before the 1979 Constitution, its provisions remain valid and effectual to the extent that they are not inconsistent with the 1979 Constitution of Nigeria. The 1976 Local Government Law in its Section 55 (a) above is clearly consistent with the 1979 Constitution.

 

There is nothing in the 1979 Constitution or the Local Government Law 1976 which prevents a Local Government Council form performing its functions in relation to the “establishment maintenance and regulation of markets, motor parks and public conveniences” through appointed or approved agents. It is in this light that I must consider the relevant averment in the statement of claim filed by the plaintiffs/respondents. Paragraphs 9, 10 and 11 of the statement of claim are relevant and read:

 

“9.     From June 1983 when the Njikoka branch and the Ifite‑Ukpo Unit of the N.U.R.T.W. was launched, the plaintiffs took over the control and management of the Ifite‑Ukpo Motor Park without let or hindrance from the defendants or anyone and collecting dues from commercial drivers to the knowledge and approval of the Njikoka Local Government Authority. The plaintiffs will at the trial rely on copies of receipts issued to commercial drivers operating from the Ifite‑Ukpo Motor Park.

 

10. On or about 9th June, 1986, the defendants acting in concert, besieged vi‑et‑armis the office of the plaintiffs within Ifite‑Ukpo motor park, drove away workers lawfully employed by the plaintiff and have since then by the use of thugs maintained physical control of the said park and collecting dues form all commercial vehicles and users.

 

11. As a result of the conduct of the defendants, the plaintiffs were obliged to lodge complaints to the Administrator for Njikoka Local Government Authority and the Divisional Police Officer for Njikoka Division. A series or meetings were held between the parties hereto at the instance of the said Administrator for Njikoka Local Government. The plaintiffs will at the trial of this suit rely and found on minutes of meetings held 25th June, 8th 1986, July. 1986 and 8th October, 1986 respectively. (Italics mine)

 

In the above paragraphs, the plaintiffs had made certain assertions of fact

which in a summary are:

 

1. That since June, 1983, the N.U.RT.W represented by them was in physical control of Ifite‑Ukpo motor park.

 

2. That as result of such physical control, they collected dues from commercial drivers using the motor park.

 

3. That their physical control of the motor park was with the knowledge and approval of the Njikoka Local Government (i.e. the 8th defendant).

 

4. That the 1st to 7th defendants on or about 9th June, 1986, forcibly took over the physical control of the Ifite‑Ukpo motor park and expelled and plaintiffs’ workers therefrom.

 

5. That the 1st to 7th defendants have since 9th June, 1986, been collecting dues from all commercial vehicles and users.

 

It is of the greatest importance to bear in mind that in the nature of the application brought before the lower court by the 1st to 7th defendants (now appellants) the truth of the assertions made by t1. plaintiffs in their statement of claim must be assumed. Order XXIX of the High Court Rules of Eastern Nigeria Cap. 61 applicable to this case and under which the 1st to 7th defendants brought their application provides:

 

“1.     Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

 

2. For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact and no discussion, of questions of fact shall be allowed.

 

3. The court, on hearing the application shall either dismiss the suitor order the defendant to answer the plaintiff’s allegations of fact, and shall make such order as to costs as shall be just.” (Italics mine)

 

The 1st to the 7th defendants must therefore be taken to have admitted the truth of the matters I have listed in a summary above. From the approach of the 1^st to the 7^th defendants at the lower court and in the arguments they canvassed before this court I get the impression that they have overlooked this basic fact. For instance at page 5 of the appellants’ brief it was argued thus:

 

“Worse still their statement of claim did not disclose the source of their power neither did they state that they built or erected any structure in the Motor Park. Rather, what they averred in paragraph 9 of the statement of claim is that the plaintiffs took over the control and management of the Ifite‑Ukpo Motor Park without let or A hindrance from the defendants or any one and collecting dues from the commercial drivers to the knowledge and approval of the Njikoka Local Government Authority. The 8th defendant, the Njikoka Local Government has already stated in the affidavit supporting the joinder that it owned the motor park and did not permit or allow the plaintiffs to take over the motor park or collect any dues therefrom. This was not refuted or denied by the plaintiffs either in the statement of claim or any counter ‑ affidavit.”

 

It need be said clearly that whatever the 8th defendant/ respondent might have said in its affidavit in support of the application for joinder was wholly irrelevant in the consideration of the application to dismiss plaintiffs’ suit brought by the 1st to 7th defendants under order 29 of the High Court Rules. C

 

The question is ‑ if the assertions in plaintiffs’ statement of claim were taken

as admitted by the defendants as they should be, could not the plaintiffs have got

the declaration they sought which for emphasis I reproduce thus?

 

“Declaration that the plaintiffs are entitled to the control and management of the Ifite‑Ukpo Motor Park to the exclusion of the defendants.”

 

In giving an answer to the above question, it is necessary to consider the nature of a declaratory judgment. It is settled law that the power to make binding declaration by a court is discretionary. See Russian Commercial & Industrial Bank v British Bank for Foreign Trade (1921)2 A.C. 438. The jurisdiction of the court to make a declaration is not confined to cases where a plaintiff has a complete and subsisting cause of action and may be employed in all cases where the plaintiff conceives he has a right. See Adigun v. A.G. of Oyo State (1987) 1 NWLR (Pt.53) 678 at 741. In Guaranty Trust Company of New York Hannay & Company (1915)

2 K.B. 536 at 572 Bankes L.J. considering the nature of a declaratory judgment said:

 

“It is the person, therefore, who is seeking relief, on in whom a right to relief is alleged to exist, whose application to the Court is not to F be defeated because he applies merely for a declaratory judgment or order, and whose application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. It is essential, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as possible.”

 

In the instant case, the only objection put forward against the assumption of jurisdiction by the lower court is that it was unconstitutional to grant the plaintiffs a declaration in respect of a power or duty vested in a Local Authority. But I think the objection is without merit once it is recognised that the 1979 Constitution only sets out the functions of a Local Government without stating how those functions are to be performed. It is crucial to note that there is nothing barring a local authority from performing the functions through agents. The plaintiffs have in their pleadings stated that they have the approval of Njikoka Local Government to take over the physical control and collection of dues at Ifite‑Ukpo Motor Park. If they can make out this assertion at the trial, there is no reason why they cannot get an order protecting a right derived from a contract or agreement with Njikoka Local Government. If on the other hand they fail to show that they had a contract or an agreement with Njikoka Local Government to physically take over the Ifite – Ukpo motor park and collect dues therefrom, their suit would simply fail and be dismissed. In either case, there is no valid reason for the contention that the lower court has no jurisdiction. The mere fact that a suit may fail for the failure of the plaintiffs to prove satisfactorily the intermediate facts necessary for the success of the suit is not a valid reason for denying the court a jurisdiction derived from

Sections 6 (6) (b) and 236 (1) of the 1979 Constitution which said jurisdiction is unlimited in purview.

 

The case of Oloriode v Oyebi (1984) 1 SCNLR 390 at 405 clearly established the necessity for all parties to be bound by the order of the court to be present before the court before the court can assume jurisdiction. That decision does not say that any of the interested parties should be brought before the court only as plaintiffs. They may come before the court as defendants. The capacity in which they come often depends on the facts and circumstances in each case. A person who normally should be one of the plaintiffs may opt to come before the court as a defendant. In this case, the Njikoka Local Government had itself applied to be joined and was joined as the 8th defendant. It was therefore possible for the lower court to make binding orders for or against the Njikoka Local Government.

 

The concept of locus standi and the establishment of a cause of action by the averments in the plaintiffs’ statement of claim as decided in Thomas v Olufosoye (1986)1 NWLR (Pt. 18)682 would only arise for consideration if the plaintiffs fail at the trial to show that they either have the consent or the approval of the Njikoka

Local Government to be physically on Ifite‑Ukpo Motor Park. Those concepts did not arise as at the stage that the 1st to 7th appellants brought their application before the lower court. To have delved into a consideration of those concepts at that stage would amount to a consideration of issues really meant for the trial of the main case. This would be a direct infraction of Order 29 of the High Court Rules under which the application to dismiss was brought.

 

I think that the lower court correctly refused to dismiss the plaintiffs’ suit. This appeal fails and is dismissed with N500.00 costs against 1st to 7th defendants/ appellants in favour of the plaintiffs! respondents.

 

AWOGU J.C.A: I agree that this appeal lacks merit. In their statement of claim, the respondents averred that 1‑7 Appellants were not members of the N.U.R.T.W., on whose behalf the Respondents had sued. They also averred in paragraph 9 of the statement of claim that N.U.R.T.W. operated at the Ifite‑Ukpo motor park with “the knowledge and approval of the Njikoka Local Government Authority.” Although they had not filed their Statement of Defence, 1‑7 Defendants/Appellants in their counter‑Affidavit challenged the capacity of the Respondents to sue without authorisation by the N.U.R.T.W. and thereafter brought the motion to dismiss the suit for lack of locus standi and non‑disclosure of a reasonable cause of action. Thus, as matters stood before the joinder of the 8th Appellant, there was an admission that the Respondents operated “with the knowledge and approval of the Njikoka Local Government Authority,” the dispute as to who controlled N.U.R.T.W. notwithstanding. It was only after the 8th Appellant joined that it raised the issue to wit ‑

 

“that the Njikoka Local Government did not permit NURTW to operate at Ifite‑Ukpo Motor Park and accordingly their presence there is unauthorised; that the Ifite Ukpo Motor Park belongs to the Njikoka Local Government and any declaration as to the management and control thereof will affect the proprietary rights of the Local Government.”

 

Thus, had the Motion to dismiss been resolved before the joinder was granted ‑ the application having been made mid‑stream ‑ it would have become obvious that the interests of 1‑7 Defendants and 8th Defendant were not identical. Be that as it may, the act of the said Njikoka Local Government council becomes a triable issue, and the Motion to dismiss was therefore premature. I think the learned Judge was right in holding that he had jurisdiction to try the suit. I too dismiss the suit and make similar order as to costs.

 

UWAIFO J.C.A: I think the application made to the court below and the appeal to this court by the defendants are misconceived in all the grounds upon which arguments were canvassed. Those grounds have been set out by my learned brother Oguntade J.C.A in his judgment just delivered. That judgment, to which I fully subscribe both as to the reasons and the conclusions on which it is based, has made it clear that the action ought to proceed to trial.

 

The defendants having sought by application to have the suit peremptorily decided upon the facts averred in the plaintiffs’ statement of claim must be presumed to have accepted that those facts are true for the purpose of the application. Then on that basis they would have to argue, based on their grounds of objection, that even though true, the facts take away the jurisdiction of the Court, they do not give the plaintiffs the standing to sue, they disclose no enforceable cause of action, or that the reliefs sought are illegal. I find that the facts relied on by the plaintiffs do no justify any of the above arguments.

 

The defendants brought their application in the court below under Order 29 rules 1,2 and 3 of the High Court Rules; Laws of Eastern Nigeria 1963, Vol IV Cap. 61 , then applicable in Anambra State, which as follows:

 

“1.     Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegation of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendants, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

 

2. For the purpose of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegation, and no evidence respecting matters of fact, and no discussion of questions of facts, shall be allowed.

 

3. The Court, on hearing the application, shall either dismiss the suit ‑ or order the defendant to answer the plaintiff’s allegations of fact, and shall make such order as to costs as shall be just.”

 

In Federal Capital Development Authority v. Naibi (1990)3 NWLR (Pt. 138) 70 at 281, Nnamani J.S.C said:

 

“It is also settled that in some cases, such as cases of demurrer, the defendant need not lead any evidence. He is in such a case taken to accept all the facts as established by the plaintiff but perhaps relies on some point of law”.

 

Reference may also be made to Fadare v Attorney‑General of Oyo (1982) 4 S.C. I ; Onibudo v Akibu (1982)7 S .C. 60 at 76. Such step taken by a defendant in a case like this results in a demurrer proceeding. This court has pronounced on the effect f going by that procedure in several cases. Incidentally, a host of them are the leading judgements of Kolawole J.C.A: see Bolaji v Bamgbose (1986) 4 NWLR (Pt.37) 632 at 644; Agbonikhena v Egba (1987) 2 NWLR (Pt.57) 494 at 508; Inoma‑Biriya v Omoni (1989)5 NWLR (Pt. 119)60 at 67,71; Ekeogu vAliri (1990) 1 NWLR (Pt. 126)345 at 352; Nwadiaro v Shell Petroleum Development Co. of Nig Ltd (1990) 5 NWLR (Pt.150) 322 at 333, 335, 336, 337. 1 refer also to Oguchi v Federal Mortgage Bank of Nigeria Ltd (1990) 6 NWLR (Pt. 156) 330 at 339 per Oguntade J.C.A.

 

The principle in regard to the procedure is well laid down in the above decisions. I say nothing new by way of paraphrase of what is variously stated in those cases as follows: The procedure under Order 29 of the High Court Rules, Laws of Eastern Nigeria 1963 and similar provisions enjoins a defendant to accept all the relevant averments of facts by a plaintiff for the purpose of demurrer proceedings but gives him the liberty to contend that notwithstanding those facts, some legal or equitable issues or consequence denies the plaintiff a hearing or the reliefs he seeks. This could be either that there is no jurisdiction in the court to entertain the action, or the plaintiff has no locus standi, or no cause of action is disclosed, or the action is statute‑barred etc., or indeed that all the above limitations are present, and that the action should be dismissed or struck out, without any further facts from the defendant.

 

The present suit cannot, upon the facts averred by the plaintiff, be disposed of in that way. Essentially, the plaintiffs aver as a fact that they have for some time with the knowledge and approval of the Njikoka Local Government Authority taken over the control and management of Ifite‑Ukpo Motor Park. If this is true, the legal consequences will be that the plaintiffs have become the agents of the said Authority for the purpose of the management and control of the said motor park. There is nothing illegal about such an arrangement. The plaintiffs will however need to establish this averment at the appropriate time. This will be at the trial after issues have been joined. The action will therefore need to be contested under the usual procedure in the High Court. A decision will then be reached upon the merits of all the reliefs sought or any of them.

 

I too dismiss this appeal, as my learned brother Oguntade J.C.A has done, and award costs of N500.OO against the 1st to 7th defendants/appellants in favour of the plaintiffs/respondents.

 

Appeal Dismissed.