3PLR – A-G, FEDERATION V. A-G, IMO STATE & OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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A-G, FEDERATION
V.
A-G, IMO STATE & OTHERS
IN THE SUPREME COURT OF NIGERIA
17TH DECEMBER, 1982
SUIT NO. SC 88/1982
3PLR/1982/1 (SC)
OTHER CITATIONS
[1982] NSCC 507
BEFORE THEIR LORDSHIPS:
FATAI-WILLIAMS, C.J.N.
SOWEMIMO, J.S.C.
IRIKEFE, J.S.C.
BELLO, J.S.C.
IDIGBE, J.S.C.
OBASEKI, J.S.C.
ESO, J.S.C.
BETWEEN
THE A.-G., FEDERATION
AND
THE A.-G. OF IMO STATE
THE A.-G. OF ONDO STATE
THE A.-G. OF LAGOS STATE
MAIN ISSUES
CONSTITUTIONAL LAW:– Original jurisdiction of Supreme Court – Limited to justiciable disputes between the Federation and a state – Actions instituted in 3 State High Courts against Federal Electoral Commission – Declaration that State High Court has no original jurisdiction to entertain legal proceedings involving disputes between the commission or executive branch of Federal Government and others
PRACTICE AND PROCEDURE:- Jurisdiction – State High Courts – Whether has jurisdiction to entertain disputes against a Federal Government Commission
WORDS AND PHRASES:– Interpretation of statutes – Need to interpret “state” in manner giving effect and purpose for which the court created
REPRESENTATION
Chief F.R.A. Williams, S.A.N., (with him F. Nwadilor, Asst. D.C.L. Fed. Min of Justice, Miss O.K. Agusto, Chief G.A. Aremu and Mr. Edewor) for Plaintiffs.
Ubochi Osuji, AG. Imo State (with him L.C. Alinnor, Legal Adviser Min of Justice Imo State) for 1st Defendant.
Fola Akinrinsola (with him Tunde Ololo, OA. Ogunbode and Dr. Tunji Abayomi) for 2nd Defendant.
Mr. G.O.K. Ajayi, SAN. (with him K.K. Shomade) for 3rd Defendant.
MAIN JUDGMENT
BELLO, J.S.C. (Delivering the Judgment of the Court):
The Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as ‘the Constitution”) established under section 140, among other Federal executive bodies, the Federal Electoral Commission (hereinafter referred to as ‘the Commission”). The Constitution conferred on the Commission in Part I of the Third Schedule to it the power:
“6 (a) “a to organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy-Governor of a State and to the membership of the Senate, the House of Representatives and the House of Assembly of each of the States of the Federation;
(b) to arrange for the annual examination and auditing of the funds and accounts of political parties, and to publish a report on such examination and audit for public information;
(c) to arrange for the registration of persons qualified to vote and for the maintenance and revision of the register of voters; and
(d) to ensure that the register voters is prepared and maintained in such form as to facilitate its use for the purpose of elections to local government councils.”
Subject to the qualifications stated therein, sections 71(2) and 124(5) of the Constitution vested in every citizen of Nigeria the right to be registered as a voter for and to vote at elections to the National Assembly and to the office of President. The sections read:
“71(2)Every citizen of Nigeria, who has attained the age of 18 year residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election
124(5)Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of President.”
Under sections 109(2) and 164(5) thereof, identical provisions were made for elections to Houses of Assembly and to the offices of Governors in these terms:
“109(2)Every citizen of Nigeria, who has attained the age of 18 years residing in Nigeria at the time of the registration of voters for purposes of election to any legislative house, shall be entitled to be registered as a voter for that election.
164(5)Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of Governor.”
“Legislative house” as defined in section 277(1) of the Constitution means ‘the Senate, House of Representatives or a House of Assembly.”
In order to enable the Commission to discharge and perform its constitutional functions and duties, the National Assembly enacted the Electoral Act 1982. The Act is a comprehensive legislation regulating the conduct of Presidential and gubernatorial elections, elections to the National Assembly and Houses of Assembly of the States In the Federation and for other purposes connected therewith.
For the proper appreciation of the factual background of the circumstances that gave rise to this suit, it is necessary to set out in full the provisions of sections 7 and 8 of the Act, which read:
“7 (1) A new register of voters shall be compiled by the Commission for each constituency after the taking of every census.
(2) The new register of voters shall be compiled from a preliminary list obtained from the registration of all eligible voters at registration Centres and in such other manner as the Commission may think fit.
(3) A registration officer or supervisory assistant registration officer or an assistant registration officer and any person authorised by him shall, for any purpose connected with the registration of voters, be present at the registration centre between the hours of 7 of ’clock in the morning and 6 of ’clock in the evening and may make such enquiries as may be deemed necessary for the performance of his duties.
(4) Any of the persons referred to in subsection (3) above engaged in the registration of voters shall wear and prominently display a badge provided by the Commission as evidence of his authority to register the names of the voters residing in the registration area.
(5) Every person engaged in the registration of voters shall in respect of his area exercise the utmost care in preparing the list of voters; and
(a) exercise the utmost care in preparing the list of voters; and
(b) take all necessary precautions to ensure that the list when completed contains the principal names by which a voter is usually or may be known and his address, and that the list does not contain the name of any person who is not a voter.
(6) Every preliminary list under this Act shall be displayed in the constituency to which it refers in such a manner and in such places as the Commission may direct and no register of voters shall be printed or used for the purpose of any election until all claims and objections have been dealt with in the prescribed manner.
(7) The register shall contain in respect of every person the particulars required in Form EC. 1 A in the Schedule to this Act including the principal name and such one or more further names by which a person is usually or may be known and his address, which for the purposes of this subsection may be the name of a village or in the case of a town, the name of the street, if the Commission thinks fit, but no person shall be registered under a principal name alone being a single name or without his address.
(8) When the claims and objections to a preliminary list have been dealt with as required by this Act, it shall be printed in such number of volumes which shall be bound and paged, with the pages numbered consecutively, as directed by the Commission and be published as the register of voters.
8(1) The register of voters in every constituency shall be revised before a national election:
Provided that nothing contained in this subsection shall prevent the existing register of voters from being revised for the first set of by-elections into the National and State Assemblies and further, If suitably adapted for such use, at Local Government Council elections to be held immediately after the coming into force of this Act.
(2) The Commission shall in any area in which a revision is to be made and in such a manner as it thinks fit Invite applications for inclusion in the register of voters from persons claiming to be entitled because of age, change of residence or other sufficient reason. An application within the time prescribed in this Act shall be in Form EC.1 in the Schedule to this Act and shall be made in person by the applicant; and If he is illiterate any person who is literate may assist him.
(3) The registration officer shall include the names in the list to be known as the supplementary list and the supplementary list shall with the existing register of voters comprise a new preliminary list and the provisions of this Act as to preliminary list shall apply and have effect accordingly.
(4) The Commission shall authorise the issue of new registration cards in Form ECAG in the Schedule to this Act to persons included in the preliminary list compiled as prescribed and each such registration card shall be numbered, bear the stamp of the registration officer and any other relevant particulars as may be required by the Commission.
(5) The Commission shall design the registration card from time to time as it thinks fit and such 25 new registration cards shall be the valid authority for voting.
(6) Any person whose name appears in the register of voters shall be entitled to vote at any election pursuant to this Act.”
In the performance of the constitutional and statutory duties entrusted upon it, the Commission conducted through its registration officers a combined registration of voters and revision of voters register exercise throughout the country. The registration officers conducted the registration/revision exercise in accordance with the Administrative Instructions issued by the Commission. A copy of the
Instruction Manual was admitted in evidence in these proceedings as part of exhibit E. Instruction Nos. 10 and 13, which gave the several plaintiffs cause to institute the suits in the High Courts of Imo, Ondo and Lagos States are very relevant. The two Instructions read:
“10. The revision of voters’ register exercise will be conducted throughout the country for a period of 15 days from August 30th 1982.
During this period, the current Register of Voters will be on display at the registration centre to afford opportunity to registered voters whose names appear on the list to collect new voter registration cards (Form EC. 1G) In exchange for the old cards which were Issued to the voters during the 1978 registration exercise. Persons who were under the age of 18 years at that time but who are now 18 years or above and who are therefore qualified to register as well as those who have changed their places of abode since the last registration exercise are expected to call at the registration centre to obtain and complete the appropriate forms in order to get their names included in the preliminary list of voters. They too will be issued with the new voters registration cards.
- During the period when the revision of the current Register of Voters will be conducted, you will perform the following duties:
(a) Exchange of Registration Cants
Persons who are already registered and who have come to their old place of registration for voters’ registration cards will have their old registration cards exchanged for new ones provided that their names appear correctly on the current Register of Voters, being displayed at the registration centre. In the case of persons who have lost their registration cards, you must satisfy yourself that the applicant is the person whose name appears on the list by asking questions, calling witnesses, administering oaths etc., with a view to establishing the identity of the applicant(s). Before issuing them new cards, the names and particulars of the voters must be recorded serially in Form EC. to as they turn up at the registration centre.
(b) Inclusion of New Names:
Persons who were not registered in the 1978 Registration of Voters exercise either because they were under age at that time or were ineligible or unable to register for one reason or the other, will be allowed to apply for their names and relevant particulars to be included in the revised register. You should display notices EC 28 at each registration centre and at such places in the polling areas as you deem fit, inviting applications for inclusion in one register of voters from person claiming to be entitled to because of age, change of residence or the other sufficient reason. Application within the time prescribed in these instructions shall be in Form EC.1 AND SHALL BE MADE IN PERSON BY THE APPLICANT. Such persons will present themselves at the registration centre located in their polling areas (precincts) where they will collect Forms EC.1 which they will submit to you on completion. For an illiterate, any literate person may assist him/her to complete the form. Also at the request of an applicant, you may complete the form on behalf of an illiterate person. All persons who have duly completed and submitted their forms will have their names and particulars entered into Form ECIA and issued with the new registration cards.”
While the registration/revision exercise was being carried out, the Attorney-General of Imo State commenced proceedings on 30th August 1982 in the High Court of Imo State in suit No. M/62/82 against the Commission and N.A. Adumanu, Its Resident Commissioner, Imo State, seeking:
“1. A declaration that persons in Imo State who are qualified and willing to have their names entered in the Voters Register in the current revision/registration of voters exercise have been placed in a disability within the provisions of section 39(1)(a) of the Constitution of Federal Republic of Nigeria 1979 by reason of the fact that the respondents failed or neglected to provide or make available Form EC1 in all registration centres in Imo State.
- A declaration that since the respondents made the completion of Form EC1 a condition precedent to registration of eligible voters in the current revision/registration of voters exercise, the non-availability of Form EC1 prevented many eligible voters from registering in the current revision/registration exercise.
- An order of court compelling the respondents to extend the period of revision/registration exercise in Imo State for the period Form EC1 was made a condition precedent to registration of eligible voters but was not made available by the respondents at the registration centres, namely from 16th August, 1982 to 26th August, 1982 inclusive that is to say for a period of ten days after 31st August, 1982.
- An order of the Court compelling the respondents, their servants and agents to provide and make available all personnel, all registration papers and all materials in reasonable quantities at all the registration centres in Imo State for the said period of ten days.
- An injunction restraining the respondents from closing the revision/registration exercise in Imo State on 31st August, 1982 until ten days thereafter.”
On that very day, 30th August, 1982, the Hon. S.K. Babalola and the Hon. Nimbe Farukanmi as plaintiffs filed Originating Summons Suit No. AK/62/82 in the High Court of Ondo State against the Commission and Lt. Colonel Ayo Ariyo, its Resident Commissioner, Ondo State, claiming the following reliefs:
“(1) A DECLARATION that the registration exercise that has been, is being or may be carried out by the 1st defendant and the Ondo State Resident Electoral Commission in Ondo State of Nigeria (the 2nd defendant herein) pursuant to the Electoral Act 1982 is null and void and of no effect whatsoever.
(2) A DECLARATION that the defendants have no powers or authority under the Electoral Act 1982 particularly Sections 7 and 8 to commence and/or continue the compilation of an entirely new Register of Voters In Ondo State as they have done or are doing or intend so to do and that the purported registration exercise so far done/conducted by the defendants in Ondo State is ultra vires, illegal, null and void and of no effect whatsoever.
(3) A DECLARATION that the use by defendants, their servants and/or agents of the Registration FORM EC1A during the registration exercise that has been or is being done or intended to be done in relation to the revision of the register of Voters is contrary to the provisions of section 8 of the Electoral Act 1982 and illegal.
(4) A DECLARATION that the 1st defendant Is not entitled to combine the compilation of a fresh Register of Voters with the exercise of the revision of the existing Register of Voters.
(5) A DECLARATION that the defendants are bound in respect of all persons whose names appear in the existing Register of Voters (except where such persons are dead or otherwise disqualified by law):
(a) to retain their names on the Preliminary List of Voters;
(b) issue to each of such persons a Voter’s Registration Card without first requiring such persons to cooperate in the completion of Registration FORM EC1A.
(6) A DECLARATION filed the purported registration exercise so far carried out or being carried out or intended to be canted out by the defendants pursuant to the Electoral Act 1982 amounts to a compilation of a new Register of Voters in Ondo State In disregard of the condition precedent provided for In section 7 of the said Act In consequence of which the plaintiffs and substantial members of the registered political party to which they belong the Unity Party of Nigeria (UPN) will be subjected to disabilities, disadvantages restrictions and privileges as accorded the plaintiffs and the said members of the said UPN under sections 37, 39(a) 14 and 17(2) (amongst others) of the Constitution of the Federal Republic of Nigeria 17.
- A DECLARATION that the introduction of Registration Form EC1 A (which constitutes part of the subject-matter of this action) in its present form Into the registration exercise is a usurpation of the legislative functions of the National Assembly and an illegal and unauthorised computerization of the electoral process and utterly at variance with the Electoral Act 1962 and it is ultra vires, unconstitutional and illegal.
(a) AN ORDER compelling the defendants to withdraw the said Form EC1A from the registration exercise and comply with the provisions of section 8 of the Electoral Act 1982.
(9) AN INJUNCTION restraining the defendants their servants and/ or agents or otherwise howsoever from compiling a new Register of Voters until the taking of a new census in the country.
(10) AN INJUNCTION restraining the defendants, their servants and/or agents or otherwise howsoever from in any way, completing or using Registration FORM EC1A during or for the purposes of the revision of the register of Voters.”
Again, in the High Court of Lagos State in Suit No. M/161/82 the Hon. Afolabi Oredoyin filed Originating Summons against the Commission, the Attorney-general of the Federation and Mrs. Folake Thanni, Its Resident Commissioner, Lagos State, claiming the following reliefs:
“(1) A declaration that the use by 1st and 3rd defendants, their servants and/or agents of the FORM EC1A during the current exercise in relation to the revision of the Register of Voters is contrary to the provisions of S.8 of the Electoral Act 1982 and illegal.
(2) A declaration that the 11 defendant is not entitled to combine the compilation of a fresh Register of Voters with the exercise of the revision of the existing Register of Voters.
(3) A declaration that the 1st and 3rd defendants are bound in respect of all persons whose names appear in the existing Register of Voters to (except where such persons are dead or otherwise disqualified by law):
(a) to retain their names on the Preliminary List of Voters;
(b) issue to each of such persons a Voters Registration Card without first requiring such persons to cooperate in the completion of FORM EC1A
(3) An Injunction restraining the defendants their servants and/ or agents from compiling a new Register of Voters until the taking of a new census In the country.
(5) An Injunction restraining the defendants, their servants and/or agents in any way, completing or using FORM EC1A during or for the purposes of the revision of the Register of Voters.”
By reason of the foregoing premises, the Attorney-general of the Federation, as plaintiff, Instituted these proceedings, as the representative of the Executive Branch of the Federal Government, claiming against the Attorneys-General of Imo, Ondo and Lagos States, as defendants jointly and severally, and as representatives of the Executive Branch and Judicial Branch of their respective Governments, a number of declarations. He also asked for an order of prohibition against all the courts of law in each of the three Sties from taking certain steps In respect of certain matters set forth therein, and also for an order of injunction restraining all the law enforcement agencies whomsoever In each of the three States from enforcing or taking any steps whatsoever to enforce any of the orders referred to in the said proceedings.
At the hearing of the case on 4th and 11th October, 1982, the defendants raised a preliminary objection and contended that this Court has no original jurisdiction to hear the case since it is not a matter which cones within the scope of the original jurisdiction of the Supreme Court as prescribed fn section 212 subsection (1) of the Constitution. After hearing learned counsel for the parties on the objection taken in Umine, we delivered our Rulings on 18th October 1982 wherein we decided that this Court has no original jurisdiction to hear the case and we accordingly struck out the case for want of original jurisdiction. We reserved our reasons for doing so until today.
In paragraphs 4, 5 and 6 of the statement of claim in these proceedings, the plaintiff mentioned the suit in each of the High Courts of the three States. I have earlier set out in full the claims in respect of the three suits. Paragraphs 8, 9, 10, and 11, 12 and 17 of the said statement of claim are germane to the issues canvassed at the hearing of the objection in limine. I will therefore set them out:
- By an order made on an ex parte application by the 1st defendant in the proceedings mentioned in paragraph 4 hereof the High Court of Imo State Mr. Justice C.O. Oyudo) issued an order dated 30th August 1982 in the following terms
(1) The respondents i.e. the Federal Electoral Commission and Mr. N.A. Adumanu their servant agents and other persons concerned with the Revision/Registration of Voters in Imo State are hereby ordered to continue with the said exercise of registration and/or revision of the voters notwithstanding that time for doing so shall have expired or will expire on 31st August, 1982 for another ten days beginning from 31st August, 1982 to make up for the time lost when Form EC was held to be a condition precedent.
(2) The said respondents are hereby ordered to provide such necessary facilities as would make such registration or revision quite possible. The order hereby made Is to take effect from today, f.e. 30th August, 1982.
- By an order made on an ex parte application by counsel for the aforementioned Hon. S.A. Babalola and Hon. Nimbe Farukanmi in the proceedings mentioned in paragraph 5 hereof, the High Court of Ondo State (Mr. Justice J. Ole Orojo) issued an order dated 30th August, 1982 in the following terms
It is hereby ordered that the defendants jointly severally whether by themselves, their servants or agents or otherwise howsoever are restrained from further embarking upon the registration exercise of voters or preparation of any Voters’ List (preliminary or otherwise) or declaring any results based on the purported exercise and/or embarking upon a revision and/or compilation of the Register of Voters which commenced on 16th August 1982 pending the determination of this action.
It is further ordered that a copy of this order be served on the defendants.
- By an order made on an ex parte application by counsel for the afore-named Hon. Afolabi Oredoyin in the proceedings mentioned in paragraph 6 hereof, the High Court of Lagos State Mr. Justice C.A. Johnson) Issued an order dated the 26th day of August 1962 In the following terms
It is hereby ordered that the defendants namely:
- The Federal Electoral Commission
- The Attorney-general of the Federation Mrs. Folake Thanni (Lagos State Electoral Commissioner) be restrained in the Interim jointly and severally from embarking on the registration and/or revision of the voters list in the Lagos State until the final determination of the action before the court at the Instance of the applicant.
- As the Presidential, gubernatorial as well as the general elections to all the legislative houses in the Federation and the States are due to be held within the next twelve months it is imperative that the exercise of the registration and or revision of the register of eligible voters be completed in good time for the purposes of the elections aforesaid.
- By making the orders pleaded In paragraphs 8, 9 and 10 hereof the High Court in Imo, Ondo and Lagos States consider that they have power to entertain proceedings against the plaintiff or the Federal Electoral Commission or against the officers or other functionaries of the Federal Government or of the Federal Electoral Commission.
- The Federal Electoral Commission and officers and servants of the Executive Branch of the Federal Government fear that unless appropriate orders of prohibition and injunction are Issued as prayed in this action, the courts of law in Imo, Ondo and Lagos States may deal with them as contemnors of the orders or decrees mentioned in paragraphs 8, 9 and 10 hereof.
WHEREUPON the plaintiff claims on behalf of the Executive Branch of the Federal Government against the defendants jointly and severally as representatives of the Executive Branch and the Judicial Branch of the Government of Imo, Ondo and Lagos States respectively:
(1) A declaration that subject to the provisions of section 237(1) of the Constitution the High Court established for a State has no original jurisdiction to entertain any legal proceedings involving a dispute between the Federal Electoral Commission or the Executive Branch of the Federal Government or any officer or functionary of the Federal Government or of the Federal Electoral Commission on the one hand and any other person or authority on the other hand.
(2) A declaration that any civil cause or matter relating to or arising out of the provisions of the Electoral Act 1982 is a “Federal Cause” as defined under section 250(3) of the Constitution and accordingly, subject to the provisions of section 237(1) of the Constitution, the High Court of a State has no jurisdiction over such cause or matter.
(3) A declaration that any judgment, order, or decree made or given by the High Court of a State In the exercise of its original jurisdiction against the Federal Electoral Commission or against the Executive Branch of the Federal Government or against any officer or functionary of the Federal Government or of the Federal Electoral Commission otherwise than in exercise of its jurisdiction under section 237 of the Constitution, is a nullity and accordingly no officer, servant, agent, or functionary whomsoever of the Executive Branch of the Federal Government or of the Federal Electoral Commission is bound to obey or comply with any such judgment, order, or decree as aforesaid.
(4) A declaration that any judgment, order or decree made or given by the High Court of a State in the exercise of its original jurisdiction in any civil cause relating to or arising from the administration of the Electoral Act 1982, otherwise than in exercise of its jurisdiction under section 237 of the Constitution is a nullity and accordingly no officer, servant, agent or functionary whomsoever of the Executive Branch of the Federal Government or of the Federal Electoral Commission is bound to obey or comply with any such judgment, order or decree as aforesaid.
(5) An order prohibiting all courts of law in Imo State, Ondo State and Lagos State from taking any steps or any further steps in any of the matters set forth in the particulars hereunder and pending before the High Court of each State respectively.
Particulars
(a) Suit No. GOW/60W/60M/82 the Attorney-general of Imo State vs. The Federal Electoral Commission and N.A. Adumanu (Resident Federal Electoral Commissioner, Imo State
(b) Suit No. M/161/82, the Hon. Afolabi Oredoyin v. The Federal Electoral Commission, the Attorney-general of the Federation and Mrs. Folake Thanni (Resident Electoral Commissioner, Lagos State)
(c) Suit No. AK/62/82 Hon. SA. Babalola and Hon. Nimbe Farukanmi vs. The Federal Electoral Commission and Lt. Col. Ayo Ariyo (Resident Electoral Commissioner Ondo State)
(6) In the alternative to (5) an order prohibiting each of the particular courts in which the proceedings mentioned in the PARTICULARS under claim (4) hereof are pending from taking any steps or any further steps in the proceedings aforesaid.
(7) A declaration that the orders made by the High Courts of Imo, Ondo and Lagos States in each of the proceedings mentioned in the PARTICULARS under claim (4) hereof on the 30th August, 1982, 30th August, 1982 and 26th August, 1982 respectively were made without jurisdiction and accordingly null and void and of no effect.
(8) An order of injunction restraining all law enforcement agencies whomsoever in Imo State, Ondo State and Lagos State from enforcing or taking any steps whatsoever to enforce any of the orders aforementioned.”
The main question for adjudication is whether or not the statement of claim in these proceedings together with the documents admitted as evidence during the hearing of the preliminary objection disclose any cause of action within the context and purview of section 212 of the Constitution, which provides:
“212 (1) 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.
(2) In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly:
Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.”
For the purpose of invoking the original jurisdiction of the Court under subsection 1 of the aforementioned section, paragraph (a) of subsection 1 of section 19 and section 20 of the Supreme Court Act, 1960 provide as follows:
“19(1) This section shall apply to any cause or matter ‘touching or concerning
(a) any dispute between the Federation and a State or between 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;
- Any proceedings before the Supreme Court arising out of a dispute referred to in paragraph (a) of subsection (1) of section 19 of this Act or against the Federation or a State shall
(a) in the case of the Federation be brought in the name of the Attorney-general of the Federation;
(b) in the case of a State be brought in the name of the Attorney-general of the State.”
For the avoidance of doubt, it may be necessary to distinguish the powers of the Attorney-general to bring any proceedings before this Court in accordance with the provisions of section 20 of the Supreme Court Act with respect to the exercise of the original jurisdiction of the Court under subsection 1 of section 212 of the Constitution from the powers of the Attorney-general under general public law to secure the enforcement of public right.
In addition to the provisions of the Petitions of Right Act, Cap. 149, Vol. V, Laws of the Federation of Nigeria and Lagos, 1958 and the Petitions of Right Laws of the several States. which empower the Attorney-general to prosecute claims by their respective Governments against any private person, by virtue of the public law of a State, its Attorney-General has the power to institute in any court of competent jurisdiction any civil proceedings, with or without a relator, involving the rights and Interests of the public which he deems necessary for the enforcement of the laws of the State, the preservation of order and the prevention of public wrongs. The principles underlining this rule of public law, as contended by Chief Williams, was exhaustively considered in Pierce v. Superior Court 96 A.L.R. 1020 and Gouriet v. Union of Post Office Workers (1978) A.C. 435.
Mention may also be made of the Attorney-general for New South Wales v. The Brewery Employees Union (1908) 6 C.L.R. 469 at pp. 550-551 where O’Conner, J. said
“It is a principle well established in British law that when a corporation or public authority clothed with statutory powers exceeds them by some act which tends in its nature to Interfere with public rights and so to injure the public, the Attorney-General for the community in which the cause of the complaint arises may institute proceedings in the courts of that community, with or without a relator, according to circumstances to protect the public interests, although there may be no evidence of actual Injury to the public.”
In so far as it is a matter of nomenclature, it is manifest that the provisions of section 20 of the Supreme Court Act were complied with in bringing the suit in these proceedings. The suit was brought in the names of the proper Attorneys-general. That being the case, reference to the powers of the Attorneys-general under public law would appear to be irrelevant in this respect. Nevertheless, I have taken pains to expatiate on the matter In order to meet the contention of Chief Williams, that because the claim of the plaintiff in the suit No. M/161/1962 in the High Court of Lagos State appears to involve public right, the Attorney-general of Lagos State in the exercise of his power under the public law of the State could have brought the said suit as the Attorney-general of Imo State had done in Suit No. M/62/1982. Under the guise of this imaginative submission, Chief Williams has also given some element of State flavour to the suit in the High Court of Lagos State as the Attorney-general of Imo State did in the suit in the High Court of Imo State.
For the reasons that will appear in due course in this ruling, I am of the firm opinion that even, as contended by Chief Williams, it the suit in the High Court of Lagos State had been Instituted by the Attorney-general of Lagos State that would not have entitled the Attorney-General of the Federation to invoke the original jurisdiction of this Court under section 212(1) of the Constitution and to institute the suit in these proceedings.
Now, to go back to the main question for determination, the core of the argument advanced by learned counsel on the question as to whether or not the Court has original jurisdiction to entertain the suit lies in the interpretation to be placed on section 212(1) of the Constitution. The points in Issue centre upon the meaning of the words “dispute’. “Federation,” “State’, and “Legal right” contemplated by the section.
It Is, I think, pertinent to point out that the provisions of section 212(1), other than the words “Federation” and “State’, were construed by this Court in Attorney-General of Bendel State v. Attorney-general of the Federation & 22 Ors. (1981) 10 S.C. 1 wherein the words “dispute” and ‘legal right” within the scope of the section were fully considered. It was held in the several judgments in that case that to invoke the original jurisdiction of the Court under section 212(1) of the Constitution, there must be a dispute between the Federation and one or more States or between the States and the character of the dispute, as clearly qualified by the section, must involve a question, whether of law or fact, on which the existence or extent of a legal right depends. It was there established in clear terms that the dispute within the purview of the section must be a justiciable dispute. In other words, it must be a dispute that is appropriate for judicial determination: See Attorney-general of the Federation (supra) at pp.2223, 48, 6778, 153154, 176 and 228230.
With regard to the issue as to whose “legal right” is intended to be involved in the dispute under the section, the Court further held that it must be the legal right of the State invoking the original jurisdiction of the Court. The dispute has to Involve either a constitutional right vested in that State or affect its existing or prospective legal right or interest: See Attorney-General of the Federation (supra) at . pp. 24, 51, 80, 157 and 228.
I think it is significant to mention Attorney-General of the Federation (1964) 1 All N.L.R. 224 which was exhaustively considered and particularly by Idigbe. J.S.C. at pp. 7477 in Attorney-general of Bendel State v. Attorney-general of the Federation (supra). Interpreting the provisions of section 114(1) of our Republican Constitution, which is in pari materia with section 212(1) of the current Constitution, the Court decided in that case that the State which invoked the original jurisdiction of the Court must show that its vested legal right had been involved.
It follows from the foregoing that where the Federation, as in the case at hand, invokes the original jurisdiction of the Court under section 212(1) of the Constitution it must be shown that there is a justiciable dispute between the Federation and the defendants/States and that the dispute must involve a legal right of the Federation. The Federation as plaintiff must show that it has such right or interest which is affected or is likely to be affected by the section complained of.
It now remains to consider the crucial question, which has never been decided by this Court, as to what is “Federation” and “State” within the ambit of Section 212(1) of the Constitution.
The submission of Chief Williams, representing the plaintiff on the Issue, though elaborate, may be summarised thus: The words “State” in the section should not be narrowly construed. It should be accorded its extended meaning as defined by section 277 of the Constitution thus:
“State” when used otherwise than in relation to one of the component parts of the Federation includes government.”
The same section defines government as follows:
“‘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.’
Chief Williams further submitted that “Federation” includes the executive branch of the Federation while “State” includes the executive branch or judicial branch of a State or a functionary of any of the branches. He concluded that since a judge of the High Court of a State is a functionary of the State, the judge is a State within the context of the aforesaid definitions and, consequently, if a judge of the High Court of a State decided that he has jurisdiction to entertain a suit brought before him and the executive branch of the Federation thinks otherwise, there is a dispute to warrant invoking the original jurisdiction of this Court under section 212(1) by the Attorney General of the Federation.
In his reply, Mr. Ajayi, contended that the definition of “State” under section 277 of the Constitution clearly shows that it only includes government when it is used otherwise than in relation to the component parts of the Federation. He contended that for the purposes of section 212(1), “State” ought to be construed as a constituent unit of the Federation. He referred to The State of Bihar v. The Union of India & Another (1970) A.I.R. 1446 where upon the interpretation of Article 131 of the Constitution of India, which is in pari materia with our section 212, the Supreme Court of India held that “State” within the context of their Article 131 means the constituent unit of India and the enlarged definition of “State” given in Pans III and IV of their Constitution would not be applied to Article 131.
Although Article 131 of the Constitution of India bears a striking and close resemblance to section 212 of our Constitution, the decision in the State of Bihar v. The Union of India & Anor. (supra), in my view, is not very useful for our purpose because the enlarged definition of State under Article 12, which provides that all local or other authorities within the territory of India are “States,” is specifically limited to Part III and IV of their Constitution and Article 313 is outside either part. On the other hand, the enlarged definition of “State” in our Constitution is not limited to any specific part of the Constitution. The question under consideration must therefore be decided solely on the construction of the provisions of our Constitution.
It seems to me if the submission of Chief Williams were to be accepted, then this Court, to the exclusion of any other court, would exercise its original jurisdiction in any dispute between a functionary of the Federal Government and an official of a State Government or between officials of conflicting States or between employees of local government councils. Disputes between the permutation and combination of such functionaries, officials and employees would certainly be multifarious. Thus a dispute between a traffic warden in the Nigeria Police Force and a warden employed by a State Government involving the question as to which warden has the right to control traffic at a particular road junction would fall within the original jurisdiction of the Court. The same would apply to dispute between health labourers employed by different local government councils as to whose duty it Is to remove night soil from a particular house. If that would be the case, then this Court would be inundated with uncontrollable flood of suits in original jurisdiction and in that event the Court would hardly be in a position to discharge effectively its primary appellate function as prescribed under section 213 of the Constitution. On this account, for the purposes of section 212(1), it is imperative to put on the word “State” such interpretation as will best carry out the object and purpose for which the Supreme Court was established by the Constitution: See Rabiu v. The State (1980) 811 S.C. 130 at 195. The Constitution established the Supreme Court, the Federal Court of Appeal, the Federal High Court, the High Court for each State of the Federation, the Sharia Court of Appeal and the Customary Court of Appeal for any State that requires either. See sections 210, 217, 228, 224, 240 and 245 of the Constitution. Subject to the provisions of the Constitution, only the High Courts of the State were conferred with unlimited original jurisdiction under sections 236 and 237. This Court and the Federal High Court were also given special and restrictive original jurisdiction in the matters specified under section 212 and 230 respectively. The Constitution did not confer any original jurisdiction on the other courts. They are purely courts of appellate jurisdiction. Under the circumstances, section 212(1) should be interpreted to give effect to the restrictive original jurisdiction of the Court. The section ought not be interpreted to enlarge its scope.
Now, the ordinary meaning of “State” within the context of the Constitution is “one of the component parts of the Federation” which (the component parts) form the constituent units of the Federation as prescribed by section 2 of the Constitution in these words:
“2 (1) Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”
By its expressed terms the extended meaning of “State” under section 277 applies ‘when used otherwise than in relation to one of the component parts of the Federation” (Italics mine). In other words, the extended meaning is only to be placed on “State” when the word is used in other than or different respects from its ordinary meaning. The three tiers of governments (Federal, State and local including their agencies and officials) are “States” within the context of the extended meaning.
The question therefore is: which of the two meanings of “State” will best effectuate the purpose for which the Supreme Court was established? Is it the ordinary or the extended meaning? For my part, I opt for the ordinary meaning. As I have already shown earlier, the extended meaning will frustrate the primary function of the Court.
For the above reasons, I hold that the word “State” In section 212(1) of the Constitution means one of the constituent units of the Federation as prescribed by section 2 of the Constitution.
The meaning of the word “Federation” presents no difficulty. It is dear from the provisions of section 2 of the Constitution that words “Nigeria,” “Sovereign State,” “Federal Republic of Nigeria” and “Federation” are synonymous. I hold that “Federation” in section 212(1) of the Constitution bears the same meaning as the Federal Republic of Nigeria.
To summarise: For the provisions of section 212(1) to apply
(1) there must be justiciable dispute involving any question of law or fact; (2) the dispute must be:
(a) between the Federation and a State in its capacity as one of the constituent units of the Federation: or
(b) between the Federation and more States than one in their capacities as members of the constituent units of the Federation;
or
(c) between States in their aforesaid capacities; and
(3) the dispute must be one on which the existence or extent of a legal right of the Federal Republic of Nigeria or a legal right of a State in its aforesaid capacity is involved.
It only remains to consider whether the necessary conditions I have stated in the preceding paragraph for invoking the original jurisdiction of the Court have been satisfied by the Attorney General of the Federation as plaintiff.
It is pretty dear that In none of the claims, the particulars of which I have fully set out at the beginning of these reasons for ruling, in the three suits in the High Courts of Imo, Ondo and Lagos States was any question, whir of law or fact, raised as to constitute any dispute between the Federation and any State within the context of section 212(1). The dispute, in the case of the suit in the High Court of Imo State, was between the Attorney-General of that State (and riot as the representative of Imo State) and the Federal Electoral Commission while the disputes in the High Courts of Ondo and Lagos States were between private persons and the Commission. Furthermore, the disputes in all the three suits centre on the constitutional right of every qualified citizen of Nigeria to be registered in the register of voters. No legal right of the Federation or of any State was involved in any of the suits.
In his attempt to bring the suit in these proceedings within the compass of section 212(1), Chief Williams relied heavily on the alleged constitutional right of the Federal Government and its functionaries, as exhaustively averred in their statement of claim, to have any dispute affecting the Federal Government and its functionaries decided by a Federal Court. Whenever there is any dispute between the Executive branch of the Federal Government or any authority established for the Federation on the one hand and any other person or authority on the other hand on a matter within the judicial powers of the Federation, Chief Williams contended, such dispute ought to be decided by a Federal Court and not by the High Court of a State.
Another point most elaborately argued by Chief Williams was concerned with the jurisdiction of the High Court of a State on a matter of public right. He contended that if a private party complains of a matter of public right in the High Court of a State and the court asserts jurisdiction then, if the Executive branch of the Federal Government thinks the State court has no jurisdiction over the matter, a dispute has arisen between the Executive branch of the Federal Government and the judicial branch of the State which entities the Attorney-general of the Federation to Invoke the original jurisdiction of this Court under section 212(1).
Now, I do not intend to decide on the validity of the contention of Chief Williams relating to the alleged constitutional right of the Executive branch of the Federal Government to have any dispute in which its or any of its functionary Is a party determined by a Federal court. In my respectful view, the matter should be reserved for decision when a proper case has been presented before this Court. For the purposes of these proceedings, even on the assumption that such a right as alleged exists, I am unable to accede in the circumstances of the case to the contention that the requirements of section 212(1) of the Constitution have been established to bring the suit within the original jurisdiction of the Court.
Finally, I think it is overstretching the meaning of the word “dispute” to contend, as Chief Williams did, that mere wrongful assumption of jurisdiction over a matter of public right, in any suit filed by a private party, by the High Court of a state constitutes “dispute” which will entitle the Attorney-general of the Federation to invoke the original jurisdiction of this Court.
It is, I think, relevant to indicate that the remedy for wrongful exercise of jurisdiction by the High Court of a State has been amply provided by the Constitution. An aggrieved party to a suit in the said court may appeal to the Federal Court of Appeal as provided for by sections 219 to 222 inclusive of the Constitution and, if he is not satisfied with the decision of the Court of Appeal, he may thereafter appeal to this Court in accordance with the provisions of section 213 of the Constitution. Any other person having an Interest in the matter may also appeal in accordance with the provisions of sections 222(a) and 213(5) of the Constitution. It follows therefore that where the High Court of a State has assumed jurisdiction over a matter before it, if the Executive branch of the Federal Government had interest in the matter and is of the opinion that the said court has no jurisdiction over the matter, the Attorney-general of the Federation has the right to appeal as the representative of the said Executive branch to the Federal Court of Appeal and ultimately to this Court in accordance with the provisions of sections 222(a) and 213(5) of the Constitution. While I am willing to endorse the view that our appeal system causes unnecessary delay in the administration of justice, with all due respect, I am unable to accede to the suggestion that expeditious determination of a very Important legal issue of great public interest as it appears in paragraph 16 of the statement of claim in these proceedings, which read:
- The plaintiff states that to contest the issue of jurisdiction before the High Court is likely to result in a reference or an appeal to the Federal Court of Appeal and a further appeal or reference to the Supreme Court. In the premises it is unlikely that this Court will have the chance of determining the vital Issues of law involved so as to guide the Federal Electoral Commission and the Federal Government unless the said questions are debated in the present action.”
Is sufficient ground for involving the original jurisdiction of this Court by the Attorney-general of the Federation.
These are my reasons for striking out the suit in these proceedings on 16th October, 1982.
FATAI-WILLIAMS, CJN: On Monday, 10th October, 1982, I ruled that this Court has no original jurisdiction to hear the above case. In the course of my ruling I said that I would give my reasons for that decision today Friday, 17th December, 1982.
I have had the opportunity of seeing in draft the reasons given by my brother Justice Mohammed Bello for agreeing with me on the matter. I entirely agree with all those reasons and I adopt them as my own. That was why I ordered that the claim be struck out.
SOWEMIMO, J.S.C.: This suit was filed under Section 212 subsection 1 of the Constitution of the Federal Republic of Nigeria, 1979. On preliminary objection being raised to the hearing of the suit, ruling was given on 18th October, 1982 in favour of the third defendant and the suit was struck out against the three defendants. I indicated then that I will give my reasons later. Section 212 subsections 1 & 2 of the Constitution of the Federal Republic of Nigeria read as follows:
“(1) 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.
(2) In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly
Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.”
There is no dispute whatsoever between the Federal Republic of Nigeria and the States. What counsel for the plaintiffs sought to depend upon was that certain orders made by the State courts of these three States dealt with matters arising from the Federal Electoral Act Federal Law, and which were made, in his submission, without jurisdiction, and, therefore, the Federal Republic of Nigeria should be allowed under this section to relitigate this matter. For reasons set out in the reasons for ruling by my brother Bello the preliminary objection by G.O.K. Ajayi, S.A.N. was upheld and the claim struck out.
The Jurisdiction relied upon by plaintiff, in reply by his counsel, amounted in my opinion, to what in Australian terminology is regarded as fabricated jurisdiction’ (see Australian Federal System by Lane, 2nd Edition, pages 593 et seq.).
As suggested by my brother Bello, the jurisdiction and competence of States courts on Federal Laws will best be dealt with when such matters arise for direct determination.
For the reasons given by my brother Bello, which were delivered this morning, and which I adopt, the objection is upheld and the claim is struck out.
IRIKEFE, J.S.C.: On 18th October, 1982, this court struck out this suit for want of jurisdiction and stated that reasons would be given today, for the step which it took then. I have since had the advantage of a preview of the reasons just delivered by my learned brother, Bello, J.S.C. and I am in full agreement with same. I have no doubt in my mind that this suit is not an appropriate one for invoking the original jurisdiction conferred on this Court under section 212 of the 1979 Constitution of this country.
IDIGBE, J.S.C.: On the 18th of October, 1982, this court ruled that it has not original jurisdiction to entertain the claims in this suit aril, accordingly, struck out the suit for want of original jurisdiction; and it reserved until today its reasons for doing so. I have had a preview of the reasons for his ruling just read by my learned brother, Bello, J.S.C. and I would like to add that it was for those reasons so lucidly set out therein that I concurred in the unanimous decision of this court on Monday the 18th day of October, 1982. I do not wish to add any further comments.
OBASEKI, J.S.C.: On the 18th day of October, 1982, following an objection in limine to the jurisdiction of this Court to entertain the claim in this suit in exercise of its original jurisdiction, we found the objection well taken, struck out the claim for want of original jurisdiction and reserved our reasons for the ruling till today.
I agree with the reasons for the ruling just delivered by my learned brother, Mohammed Bello, J.S.C. the draft of which I had had the privilege of a preview. It was for those reasons that I agreed to uphold the objection of counsel for the defendants in limine and struck out the claims and the suit.
ESO, J.S.C.: I have had the privilege of a preview of the reasons for ruling in this case which have just been read by my learned brother Bello, J.S.C. I think my learned brother has adequately covered the grounds and I will adopt his reasons for the course I took on 18th October, 1982 in striking out the suit in these proceedings.
I will only add for emphasis that the original jurisdiction of the Supreme Court, as prescribed under s.212(1) of the Constitution of the Federal Republic of Nigeria 1979, is, in my view, a special jurisdiction. I think when the present Constitution gave this jurisdiction under s.212, and limits it to any dispute “between the Federation and a State or between States” the word “State” must mean State in its sovereign or corporate capacity, and a State in that capacity must be a State as created under s.3 of the Constitution. The same attitude is taken by the Supreme Court of the United States in the case of Louisiana v. Texas (1900) 176 U.S. page 1.
If a State in the Federal Republic is not, as a State, interested in any justiciable dispute between it and the Federation or between is and any other State as a State, then its citizens must in their individual capacity seek justice in the appropriate court but not in this court, as the State cannot make the case of its citizens its own case in this court coming by way of the original jurisdiction conferred by the Constitution. See also the opinion of Harlan J. in the case of Louisiana v. Texas (Supra); New Hampshire v. Louisiana (1883) 108 U.S. 76 and Oklahoma ex re Johnsons v. Cook (1938) 304 U.S. 387.
Appeal dismissed
