EMANUEL OLASUPO AND OTHERS (PETITIONERS)
v.
1. ATTORNEY-GENERAL, WESTERN NIGERIA
2. JULIUS KEHINDE OLAOGUN
3. THE REVEREND BISHOP RICHARD FINN (ON BEHALF OF THE REGISTERED TRUSTEES OF THE ROMAN CATHOLIC BISHOP OF THE BIGHT OF BENIN) (RESPONDENTS)
(1961) All N.L.R. 584
Division: High Court (West)
Date of Judgment: 21st July, 1961
Case Number: Suit No. 1/71/61
Before: Morgan, AG. C. J.
Motion to strike out Petition of Right.
The petitioners sought by way of a Petition of Right, a declaration:-
(a) that the second respondent was not entitled to the interest or right in the land granted in the said lease and therefore not competent to make the grant.
(b) that the approval given by the Minister of Lands to the lease was bad in law.
(c) that the said lease, registered as No. 5 at 5 in Volume 74 of the Lands Register at Ibadan be expunged from the register.
The Attorney-General brought an application asking to be dismissed from the Petition as the Writ disclosed no cause of action against him. The Reverend Bishop Richard Finn brought an application asking that the Petition be dismissed upon the ground that procedure by way of a Petition of Right was not open to the petitioner on the facts pleaded.
HELD:
(1) The Crown cannot be joined with another party in a Petition of Right.
(2) A Petition of Right will not lie for a declaration that a wrong has been done by the Crown.
Applications granted: Petition struck out.
Cases referred to:-
Kirk v. R.; Attorney-General v. Kirk, L.R. 14 Eq. 558.
Feathers v. The Queen, 12L.T. 114; (1865) 6B & section 257; 35 L.J. Q.B. 200; 29 J.P. 709; 122 E.R. 1191.
Law referred to:-
W.R. Petition of Right Law, Cap. 90, section 31(1)
MOTION to strike out Petition of Right.
Layiwola for the Petitioners.
Eso, Crown Counsel, for the First Respondent.
Obe for the Second Respondent.
Datoye for the Third Respondent.
Morgan, J.:-In this matter the petitioners pray for a declaration:-
(a) that the second respondent was not entitled to the interest or right in the land granted in the said lease and therefore not competent to make the grant.
(b) That the approval given by the Minister of Lands to the Lease was bad in law.
(c) That the said lease, registered as No. 5 at 5 in volume 74 of the Lands Register at Ibadan, be expunged from the register.
Both the first respondent and the third respondent have applied to be dismissed from the petitions and in my Judgment the applications must be granted.
In the first place it is wrong to join anyone with the Crown as respondent to a petition of right (Kirk v. R.; Attorney-General v. Kirk, L.R. 14 Eq. 558). In the second place, according to Cockburn, C.J. in Feathers v. The Queen, 12 L.T. 114, 117 ."the cases in which the petition of right is open to the subject, are where land, or goods, or money of the subject have found their way into the hands of the Crown, and where the purpose is to obtain restitution, or, where that cannot be obtained, compensation in money, or where the claim arises out of a contract for goods supplied to the Crown or the public service. It is in such cases only that instances of petition of right having been maintained are to be found in the books and no case has been adduced (after all the industry and
research which has been brought to bear on the subject) in which a petition of right has been brought in respect of a wrong, properly so-called, by the Crown." And by section 3(1) of the Petitions of Right Law Cap. 90 of the Laws of Western Nigeria the claims which are the subject matter of a petition of right are those "of the same nature as claims which may be preferred against the Crown in England by petition, manifestation or plea of right.
For the foregoing reasons I hereby strike out the petition.
Applications granted: Petition struck out.