By Stephen Peter OKANGLA

Introduction

Traversing the length and breadth of the Constitution, case law, rules of courts and tribunals are rudimentary and fundamental to the success of any application. Per Ngwuta JSC in the case of SOCIETY BIS S.A.V. V. CHARZIN IND LTD defined jurisdiction as “the dignity which the court has to do justice in a cause or complaint brought before it.” It is the limits imposed upon the power of a validly constituted court to hear and determine issues with reference to the subject matter and the relief sought. Jurisdiction of a Court of law cannot be assumed or implied, it cannot be conferred by parties to a suit. It is not something that parties to a suit can donate, increase or reduce either. Jurisdiction is not something that can waived, neither can it be sacrificed on the altar of interest

It is generally donated by the Constitution or the enabling statute that established the court. The knowledge of jurisdiction, the mode of commencing an action and the Court to commence an action are key and instrumental to the success story of every successful application, this is so because jurisdiction is the foundation, livewire, root and blood that gives life to all adjudicatory application or process. Jurisdiction of a court is fundamental and threshold issue in a proceeding and as such, it can be challenged at any time or stage even for the first time at the Supreme Court. It is notorious that without jurisdiction, no matter how well an application is dressed, perfumed and/or adorned it would amount to a waste of time, energy, dexterity and resources committed to it as the Court will practically be rob off of power to entertain such application. Want of jurisdiction is fatal to any application just as ghastly accident is fatal. See the case of OTUPKO V JOHN (2000) 8 NWLR (669) 507 and BRONIK MOTORS V WEMA BANK (1983) 6 SC. 158.

The Supreme Court of Nigeria as established in section 230 of the Constitution Federal Republic of Nigeria, 1999 as amended 2011 (hereinafter referred to as “the Constitution”), is the apex Court of the land, the court of last resort and the Court where policy is birth. It is clothed with both original and appellate jurisdiction as set out in sections 232 and 233 of the Constitution respectively. It is on the above foundation; this research posits at diligently traversing the jurisdiction of the supreme Court and x-raying the slippery Path.

The Original Jurisdiction of the Supreme Court of Nigeria

The Supreme Court is established in section 230 of the Constitution and it is clothed with both original and appellate jurisdiction. The original jurisdiction of the Supreme Court is circumscribed in section 232, same is reproduced here for emphasis:

“the Supreme Court shall, to the exclusion of any other Court, have original Jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.” Further to this, subsection (2) conferred on the National Assembly power to expand and espouse the original jurisdiction of the Supreme Court, and which same was exercised by virtue of (Additional Original Jurisdiction) Act, 2002, made pursuant to the Constitution, saw the birth of three additional instances the original jurisdiction of the Supreme Court could be invoked, it is hereby supplied seriatim: “(i) dispute between the National Assembly and the President of the Federal Republic of Nigeria; (ii) dispute between the National Assembly and a State; and (iii) dispute between the National Assembly and a State House of Assembly in Nigeria.

More so, for the original jurisdiction of the supreme Court to be invoked, it requires no special craft nor passing through the eye of the needle. However, care must be exercised in order not to embark on a wild goose chase in the process. First and foremost, it should be understood that there must be a prevailing dispute between the Federation and a State(s), or between States of the Federation as the case may be. The Apex Court, Per Onnoghen, JSC in the case of A.G ABIA STATE V. A.G. FEDERATION (2007) 2 SC, 146 stated unequivocally that: “the provisions of section 232 (1) of the 1999 Constitution, is very clear and unambiguous. Flowing from the above it is pellucid that for the original Jurisdiction of this Court to be invoked in civil action; (a) the action must be between the Federation and State(s) or between States and there must be a dispute between the Federation and a State or States; (b) the dispute must pertain to the existence or extent of a legal right” (emphasis supplied). In his wit, he went further to define the term “dispute” in the context of section 232 (1) when he said: “it has been held by this Court vide Belgore, JSC (as he then was) in A.G. OF THE FEDERATION V. A.G OF ABIA STATE (2001) (PT. 725) 689 at 737, inter alia, that the term dispute as used “… involves acts of argument, controversy, debate, claims as to rights whether in law or facts, varying opinion, whether passive, or violent of any disagreement that can lead to public anxiety or disquiet.”

It follows therefore, that such a dispute must borders on question of fact or law against the Federation and a not a mere advisory and/or invitation for abstract academic opinion. See the case of OLANIYI V. AROYELUN (1991) 5 NWLR (PT. 194) 652. It is also well settled that the application that could invoke the original jurisdiction of the Supreme Court, must be dispute which raise an issue or question (whether of law or fact) on which the existence or extent of a legal right depends. It must be definite and concrete. It was exhaustively restated in the case of OLALE V. EKWELENDU that it is not within the Jurisdiction of the Supreme to give advisory opinions or deal with hypothetical or academic question.

Secondly, such dispute must arise between the Federation and State (s) of the federation. The term federation must not be confused with Federal Government, or Agency of the Federal Government and/or office of the President. In A.G KANO STATE V. A.G. FEDERATION the supreme Court explained that the word “Federation” in section 232 of the 1999 Constitution bears the same meaning as “Federal Republic of Nigeria.” Where a claim comes outside this, it sucks the court of the blood to live (Jurisdiction) thereby making such exercise one in futility.

Furthermore, in A.G FEDERATION V. A.G ANAMBRA STATE wherein the plaintiff being the Attorney General of the Federation, invoked the original jurisdiction of the Supreme Court over a dispute on a parcel of 148.337 hectares of land at Amansa, Awka North Local Government Area, with Anambra State Government, claimed to have lawfully acquired the land, which interest therein was revoked by the State Government. Not to delve into details of the Court proceedings, their Lordships in resolving the issue, defined the term, “Federation” as well as “Government of the Federation.” In furtherance to this, by a community reading of Sections 318 and 2 (1), and (2) of the Constitution, the Court held: “simply put, the word Federation means Federal Republic of Nigeria, which presently consists of 36 states and Federal Capital Territory called Abuja.” Per Okoro, JSC stated thus: “it must be noted that there is a clear difference between the “Federation” or “Federal Republic of Nigeria” on the one side and “Government of the Federation” or “Federal Government.” Whereas the Federation refers to the federating units comprising of all the States and the Federal Capital Territory, the Federal Government or Government of the Federation refers to the Executive arm of the Government, which differ with the legislative powers and judicial powers. See sections 4, 5 and 6 of the Constitution and the case of A.G KANO STATE V. A.G FEDERATION (2007) 6NWLR (PT. 1029) 164 at 184-185 Paras. H-B.

In summary, the Court held that the acts of Federal Government agencies are not captured under section 232 (1) of the Constitution. It struck out the case for want of jurisdiction, pointing out that the proper venue to ventilate such grievances is the High Court of Anambra State in line with section 39 (1) (a) and (2) of the Land Use Act 1976 and not the Supreme Court.

Appellate jurisdiction of the Supreme Court of Nigeria

The appellate jurisdiction of the Supreme Court is circumscribed in section 233 (1) (2) of the Constitution. For the sake of emphasis, it is partly reproduced:

“(1) the Supreme Court shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.”

“(2) an appeal shall lie from decisions of the Appeal Court to the Supreme Court as of right in the following case; (a)where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings before the Court of Appeal; (b)decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution; (c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this constitution has been, is being or is likely to be contravened in relation to any person; (d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any Court…”

It is important to state that the Supreme Court only entertain Appeal from the Court of Appeal and not from a High Court nor any lower court. Per, Katsina Alu, JSC in the case of A.G. OF ANANMBRA STATE V. A.G. OF THE FEDERATION stated firmly that:

“an appeal to the Supreme Court must be from decision of the Court of Appeal. The Supreme Court does not exercise a right of appeal over a High Court decision coming directly from that court. The Supreme Court cannot and will not accede to this issue without an appeal to this court from the decision of the Court of Appeal.”

In continuation, the issue of jurisdiction in a proceeding is fundamental and intrinsic to the whole adjudicatory procedures as such it can be challenged at any time even for the first time at the Supreme Court. See the case of OLABA V AKEREJA (1988) 3NWLR (PT. 84) 508 at 520, C-E. It is needful that a Court is clothed with the requisite jurisdiction before entertaining a suit and before it delves into the determination of the suit because once it is shown by a party that a Court lacks the requisite jurisdiction to grant audience on a matter, the process or proceeding no matter how brilliantly presented and conducted will amount to effort in futility and of no legal effect

Following from the above a Court of law could be said to be adorned with the requisite jurisdiction drawing from the Supreme Court case of MADUKOLU V. NKEMDILIM wherein the Supreme Court provided the following guide for determining whether a court has jurisdiction. Hon Justice Bairamian (FJ) while delivering the lead judgment in that case stated as follows:

“Put briefly, a court is competent when: (1) the court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is intrinsic to the adjudication and shakes the foundation of the procedure” (emphasis supplied).

Jurisdiction therefore remains a sine qua non, a must observe and a must have for any Court (Supreme court inclusive) in all adjudication. The dispute (whether of question of law or fact) that would command or invoke the original jurisdiction of the Supreme court must be one that affects the interest of the Federation or Federal Republic of Nigeria on one side and state(s) on the other side or between States of the Federation as it affects their interest.

The Slippery Path

It is trite that you cannot put something on nothing and expect it to stand; Per Lord Denning of blessed memory in UAC V McFoy. It is the jurisdiction of the court as enshrined in the constitution and the instrument establishing a court that assign or spell out areas in which a court can adjudged. Section 232 (1) of the Constitution is usually construed erroneously to include agencies of the Federal Government. It is well stated without modicum of doubt or trepidation that within the context of section 232 (1) of the Constitution, disputes arising from Ministries, Departments or Agencies of the Federal Government and State Government or Ministries, Departments and Agencies of State(s) Government does and cannot invoke the original jurisdiction of the Supreme court.

As brilliantly and clearly stated in A.G KANO V. A.G FEDERATION (supra) dispute between Hisbah corps, an agency of Kano State government and the Inspector General of Police does not come within the provision and meaning of section 232 (1) of the Constitution. Hypothetically, dispute between agencies of the Federal Government such as: Nigerian Army, Nigerian Navy, Nigerian Police, Economic and Financial Crimes Commission, ICPC, Nigerian Customs Service, Central Bank of Nigeria, Bank of Industry Corporate Affairs Commission and State(s) or agencies of State(s) Government is circumscribed in section 251 (1) of the Constitution which exclusively vest jurisdiction in the Federal High Court.

Therefore, it is a grave misconception, misconstruction and deviation from the spirit and letters of section 251(1) of the Constitution to hold even slightly that disputes between agencies of the Federal Government and State(s) is vested in the Supreme court. It is a slippery path which can collapse the foundation of case no matter how intelligently and brilliantly presented.

Conclusion

The provision of the Constitution is very clear and free of ambiguity from all side. If there is a misconstruction in any section then a closer and careful approach should be employed in reading the letters. Section 232 (1) of the Constitution leaves no doubt in respect of the original jurisdiction of the Supreme court, likewise section 233. As explained herein, there is indeed a remarkable and very obvious difference between the “Federation” or “Federal Republic of Nigeria” and “Government of the Federation” or “Federal Government.” The Federation refers to the Federating units comprising the states and the Federal Capital Territory whereas the Federal Government or Government of the Federation refers to the Executive arm of the Government different from the Legislative and Judicial powers duly vested in the Legislature and Judiciary respectively.

The proper place to file a case involving disputes, disagreement or policy of agency of the Federal Government and State(s) or its agencies is the Federal High Court, it remains the alter ego of such dispute. Similarly, the mode of commencing an action is very fundamental as non-compliance strikes the root of the case and robs the Court of jurisdiction. See MADUKOLU V. NKEMDILIM (supra). The Constitution is supreme, its provision must be followed to the latter. Section 1 (3) of the Constitution provides: “if any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” The jurisdiction of Court cannot be implied nor donated by parties in a matter neither can it be construed from laws not sanctioned by the Constitution and statutes establishing the Court. Therefore, all slippery path as discussed herein should be carefully examined, studied and digest in order to be on the same page with the provisions of the law.

Stephen Peter Okangla is an undergraduate student of Law at the University of Maiduguri, Borno state. He is an Author, a poet, proficient writer and legal researcher. He is a student parliamentarian and has great penchant for Constitutional law, election petition, Aviation law, governance, Dispute resolution, telecommunications law, corporate practice, oil and gas and entertainment law.

He can be reached via: [email protected] | 08132040369