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29TH JUNE, 1964

S.C. 231/1964 AND 232/1964

3PLR/1964/36 (SC)

















CONSTITUTION OF FEDERATION — Legislation: Constitution of the Federation, 1963, s.4, s.42, s.43, s.51, s.53, s.114(1), s.141; Supreme Court Rules, 1961, Order 2, Rd, R.2, Order 3, R.1; Rules of the Supreme Court (England, as in White Book for 1964) Order 12, R.I. Eastern Nigeria: Constitution of 1963, s.14.

CONSTITUTION OF FEDERATION — constituencies: number and demarcation; whether any Region has a legal right to a particular number-Monetary grants to Regions out of Distributable Pools Account Alteration of Fractions.

PRACTICE AND PROCEDURE- Jurisdiction-Original jurisdiction of Supreme Court under s.114(1) of the Constitution.

PRACTICE AND PROCEDURE- Motion to dismiss suit on ground that Statement of Claim discloses no cause of action, and that Court has no jurisdiction; objection that defendant had entered unconditional appearance.

Declaration, a discretionary remedy—Plaintiff’s conduct.


BRETT, J.S.C. (delivering the judgment of the Court).-In these two actions the Government of Eastern Nigeria sues the Government of the Federation, with their respective Attorneys General as nominal parties in accordance with Order 2, rule 2 of the Federal Supreme Court Rules. The actions are brought in the original jurisdiction of the Court under section 114(1) of the Constitution of the Federation, and have been consolidated with the consent of the parties. The relief asked for in each case is a declaration that “the defendant, his servants, or agents, are not entitled to accept or act on the 1963 census figures.” In S.C. 232/1964 the Statement of Claim goes on to allege that the manner in which the census was conducted was unconstitutional, ultra vires and illegal and was therefore null and void, on the grounds of a wrong assumption of jurisdiction by the Prime Minister of the Federation, and the contravention of statutory provisions in the unauthorised setting up of a Census Board responsible to the Prime Minister. In S.C. 231/1964 it is alleged that the taking of the census was vitiated on the ground of irrelevant considerations and bad faith and particulars are attached of irregularities which are said to be such that no reasonable authority could accept and act on the figures.


In accordance with Order 3, rule 1, the proceedings have been commenced not by the issue of writs of summons but by the filing of Statements of Claim, and it is to be assumed that the Statements of Claim comply with the requirement that a pleading shall contain a statement in a summary form of the material facts on which the party pleading relies. We point this out, since at times the Solicitor General for Eastern Nigeria, who represented the plaintiff on the hearing of the motions which we are now considering, spoke as if no pleadings had yet been filed and as if the Court knew no more of the issues than could be inferred from the relief claimed.


The defendant has entered an appearance, and has filed a motion in each case asking the Court to dismiss the action on the grounds (a) that the Statement of Claim discloses no cause of action; (b) that the Court has no jurisdiction to entertain the claim; and (c) that the action is frivolous and vexatious and an abuse of the process of the Court. If these motions succeed that will be an end of the cases, and no proceedings will be necessary on the summonses for directions taken out by the plaintiff.


Order 2, rule 1, of the Federal Supreme Court Rules lays down that where no provision exists in the rules the practice and procedure of the Court in its original jurisdiction shall be conducted in substantial conformity with the practice and procedure for the time being observed in England in the High Court of Justice. The plaintiff submitted, on the authority of a number of English decisions on what is now Order 12, rule 1, of the Rules of the Supreme Court, that having entered an unconditional appearance the defendant is debarred from raising an objection to the jurisdiction of the Court. It is clear from the decision of the Court of Appeal in Wilkinson v. Barking Corporation [1948] 1 K.B. 721, and from other cases cited in the notes in the Annual Practice, 1964, at p. 132, that the bar only extends to objections of a kind that are capable of being waived, and not to cases where there is a total want of jurisdiction. Alternatively, the plaintiff submitted that it would be contrary to accepted practice to dismiss the action summarily at this stage, and he referred to the opinion of the Judicial Committee in Electrical Development Co. of Ontario v. Attorney-General for Ontario and Anor. [ 1919] A.C. 687. In that case a writ had been set aside before pleadings had been filed, and the Board was of the view that in the circumstances of that case this ought not to have been done until the precise nature of the plaintiff’s claim had been formulated and the facts, so far as necessary, had been ascertained.


In the present cases the plaintiff has disclosed the precise nature of his claims and stated the Facts on which his claims are based and if the Court is satisfied that his Statement of Claim in either action discloses no cause of action, or that the Court has no jurisdiction, he is not entitled to demand that the Court should defer a ruling to this effect until it has inquired into the facts. It is hardly necessary to add that in considering a motion for dismissal on either of these grounds the Court must assume that the plaintiff could prove the facts which he alleges.


Paragraphs 1 to 7 of the two Statements of Claim are virtually identical. The fast three are introductory; the next four read as follows:


“4.     Some time in 1963 the Prime Minister and the other Regional Premiers set up a Census Board to conduct another population count. The Board was made to be responsible to the Prime Minister. This time the total population figure rose to 55,653,821 million made up in the following manner:


North: 29,777,986; East: 12,388,646; West: 10,278,500; Mid-West: 2,533,337; and Lagos 675,352.


  1. By their letter No: FCB/2/248 dated 24th February, 1964 the Census Board communicated what they described as provisional figures to the Prime Minister.


  1. Notwithstanding the grave doubts cast on the figures by the Census Board, the Prime Minister accepted and published them without the prior consent of the Premiers.


  1. Following the publication, the Governments of Northern and Western Nigeria respectively accepted the figures whilst the Governments of Eastern and Mid Western Nigeria respectively rejected them on the grounds of inflation and gross irregularities and unauthorised acts.”


The only comment necessary on these paragraphs is that since it is part of the plaintiff’s own case that the Premier of the Region concurred in the setting up of a Census Board responsible to the Prime Minister the plaintiff cannot found a claim for a discretionary remedy like a declaration which, though extended in ambit, originated as an equitable remedy in the Court of Chancery, on a submission that the setting up of the Board amounted to a contravention of statutory provisions. The submission appears from the pleading to be without substance in any event, and it is not alleged that the Premiers or any one or more of them had a right to veto the acceptance of the figures.


Paragraphs 8 to 12 of the Statement of Claim in S.C.232/1964 read as follows:


“8.     The Plaintiff like the other Governments within the Federation enjoys vital rights in respect of Census.


  1. At present, the Eastern House of Assembly comprises 146 members and there are as many constituencies as there are members of the House and these constituencies are based on population quota.


  1. The number of seats and constituencies in the North, West, Mid-West and Lagos are equally based on population quota.


  1. The holding of a Census of the population has the effect of bringing about alteration in the number of constituencies and seats in the various Legislatures of the Federation including the Legislature of Eastern Nigeria otherwise known as the Eastern House of Assembly.


  1. The Federal Government has evolved a policy whereby monetary grants are made to the various Regional Governments within the Federation on population basis.”


Paragraphs 8 and 12 of this pleading are repeated in S.C.231/1964 as paragraphs 11 and 12; paragraphs 8 to 10 in that Statement of Claim allege certain grounds for doubting the accuracy of the census figures.


There are therefore in substance two grounds on which the plaintiff rests the submission that if the facts alleged can be proved this is a case for the grant of a declaration. It is said that the acceptance of the census figures will affect both the demarcation of electoral constituencies and the making of monetary grants in such a way as to prejudice the legal rights of Eastern Nigeria. We emphasize the words “legal rights” since that is the test of jurisdiction under section 114(1) of the Constitution of the Federation, which reads as follows:


“The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a Region or between Regions if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”


Constituencies for elections to the Eastern Nigerian House of Assembly are quite distinct from constituencies for elections to the Federal House of Representatives. Their demarcation is the responsibility of a Regional “competent authority” and requires the approval of the two legislative houses of the Region, and although the authority may find it convenient to adopt the figures shown in the national census if it considers them reliable, section 14(6) of the Constitution of Eastern Nigeria does not require it to do so. The number of such constituencies is prescribed in the Constitution of the Region, and does not depend on the figures of the national census. It follows that only the effect of the national census on Federal constituencies need be considered here.


Section 43 of the Constitution of the Federation lays down that the House of Representatives shall consist of three hundred and twelve members and section 51 makes provision for constituencies. Subsections (1) and (2) read as follows:


“51-(1) Nigeria shall be divided into as many constituencies as there are members of the House of Representatives by virtue of section 43 of this Constitution, and shall be so divided in such manner as the competent authority, acting with the approval of each House of Parliament signified by resolution, may prescribe.


(2)     No constituency shall form part of more than one territory and the boundaries of each constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable:


Provided that the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical features, the distribution of different communities and the boundaries of the territories.”


Subsection (3) provides that the competent authority shall carry out a periodical review of the division of Nigeria into constituencies; subsection (4) requires the approval of both Houses of Parliament for any alteration of the boundaries of a constituency; subsections (5) and (6) provide for the ascertainment of the population quota by dividing the number of inhabitants of Nigeria as disclosed by the latest census by the number of constituencies; and subsection (7) defines the competent authority as meaning the Electoral Commission of the Federation or such other authority of a composition prescribed in the subsection as may be established by Parliament. In either event, the competent authority consists of a Chairman appointed on the advice of the Prime Minister and members representing each territory in equal numbers.


Parliament has power under section 3 of the Constitution to alter any of the provisions of the Constitution, but an alteration to section 43 or section 51 requires the support of at least two-thirds of the members of each House of Parliament, and the consent of each legislative house of at least three Regions.


It is to be observed that, unlike certain other federal constitutions, the Constitution of the Federation of Nigeria does not apportion constituencies among the territories (i.e., the four Regions and the Federal territory of Lagos). The rule that no constituency shall form part of more than one territory makes for administrative convenience, and enables provision to be made in section 53 for the hearing of election petitions by the High Court of the territory, but it cannot be construed as conferring on a territory a legal right to have any particular number of constituencies established within its boundaries. It is Nigeria, not a territory, that is divided into constituencies for the purpose of elections to the House of Representatives, and the Constitution confers no legal rights on a territory in relation to membership of that House. It is in the Senate that the rights of the territories as such are safeguarded, and that provision is made for representation of the territories, since under section 42 of the Constitution the Senate consists of twelve Senators representing each Region, four representing the Federal territory and four selected by the President, acting in accordance with the advice of the Prime Minister.


Thus, even if it is true that acceptance of incorrect census figures by the responsible authority and by both Houses of Parliament would mean that fewer members would be elected to the House of Representatives by constituencies in any of the territories than would be if correct figures were adopted, we cannot hold that any legal right vested in the territory as such would be affected. Unless some individual elector can show that his personal legal rights have been affected, it may be that no remedy is available by process of law where the establishment of constituencies is based on inaccurate figures, but we cannot allow that consideration to affect our decision on what constitutes a legal right. It should be remembered, more over, that a certain margin of error is unavoidable in a census involving many millions of people and that while the Court may be competent to decide, as the Court is asked to decide in this case, that irregularities have been such that no reasonable person could accept the figures produced, it is essentially a political matter, where the irregularities fall short of that, to decide what margin of error is acceptable.


As regards the monetary grants to which the Statements of Claim refer, the plaintiff disclaimed any intention of interfering with Parliament’s discretion to make grants under section 73 of the Constitution and said that the reference was to the allocations made from the Distributable Pool Account. These allocations are fixed by section 141 of the Constitution, but the plaintiff fears that they might be altered to the detriment of the Region. Even if they were based solely on population, which they do not appear to be, this is another section which can only be altered by a vote of two-thirds of the members of each House of Parliament and the consent of each legislative house of at least three Regions, and while the Court has Jurisdiction, in certain circumstances, to declare that something which Parliament has done is unconstitutional, it has no jurisdiction to dictate to Parliament what material it is to take into consideration in exercising its power to amend the Constitution, or what sources of information it is to rely on.


We are not prepared to hold on the material before us that the actions are frivolous and vexatious, but so far as the declarations sought are intended to affect the demarcation of constituencies we hold that the plaintiff has failed to show any legal right vested in Eastern Nigeria as a territory to a specified number of seats in the House of Representatives, and that the Statements of Claim disclose no cause of action; so far as the declarations are intended to affect the exercise of Parliament’s power to alter section 141 of the Constitution we hold that the Court has no jurisdiction to entertain the claim. In the course of his argument the Attorney-General of the Federation made a number of submissions as to the right of a Region to challenge the administration of an admittedly valid Federal law, and supported his submissions with various cases decided under other federal constitutions. In reaching our decision we have found it unnecessary to do more than apply the provisions of the Constitution of the Federation of Nigeria to the facts of the present case, and we give no general ruling as to the legal rights of a Region in other circumstances.


For the reasons we have stated, the motions succeed and the consolidated claims are dismissed.


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