analysisBy Daniel Ebune
Lagos — Since the NEPA v EDEGBERO decision by the Supreme Court a year and a half ago, lawyers have engaged in heated debate about the scope of the decision. JOSIAH O. DANIEL-EBUNE argues that the Supreme Court should revisit the issue of the Federal High Court's jurisdiction in relation to the Federal Government and its agenda
On Friday December 13, 2002 the Supreme Court of Nigeria delivered Judgment in the above-named suit, construing section 230 (1) 1979 Constitution, (now Section 251 of 1999 Constitution) and holding in substance that section 230 (1) (q) (r) and (s) of the 1979 Constitution) vested exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies is a party notwithstanding the nature of the claim in the action. (NEPA V EDEGBERO (Supra) see particularly P. 87 Para 3)
The emphasis which forms the subject matter of this article is "NOTWITHSTANDING THE NATURE OF THE CLAIM." By the said decision, the Court being the highest in the land, on the twin doctrines of judicial precedent and stare decisis, (AFRICAN NEWSPAPERS LTD V NIGERIA (1985) 2 NWLR PT.6 P. 137 at 141) laid to rest the controversy over whether it is "automatic" that in every form of action, irrespective of the subject matter or nature of the claim, once an agency of the Federal Government is involved as a party (defendant or plaintiff) the suit must be filed or commenced in the Federal High Court. (See Section 251 (p) of the 1999 Constitution).
Before this decision, there have been two opposing views dancing in the Court of Appeal. One line of reasoning was to the effect that it is the 'subject matter or nature of the claim' before the Court that determines jurisdiction. (ONAH V ATANDA (2000) 5 NWLR pt. 656 P. 244; EGBUONU V BORNO RADIO (1997) 12 SCNJP. 99). The other holds that the moment a Federal Government agency is involved as a party, the subject matter is irrelevant and the matter must go to the Federal High Court. (UNIVERSITY OF ABUJA V OLOGE (1996) 4 NWLR pt. 445 p. 706; AYENI V UNIVERSITY OF ILORIN (2000) 2 NWLR pt. 644 p. 290). The latter view appears to be what the decision under discourse have affirmed.
The facts of the case are that the plaintiffs, 16 in number were former employees of the National Electric Power Authority, NEPA, the Defendant. Following an industrial action by the workers of NEPA embarked upon in August 1994 the plaintiffs among others were by a letter dated August 10, 1994 terminated. On August 17, 1994 they instituted various actions claiming in each: A declaration that the purported termination of the plaintiff (sic) irregular, wrongful, null and void and of no effect whatsoever: An order re-instating the plaintiff with the payment of salaries, allowances and entitlements till re instatement: A perpetual injunction restraining the Defendant from harassing, intimidating and violating of the plaintiff's rights (NEPA V EDEGBERO (supra))
All the actions were consolidated and tried together. The defendant contended at the trial that under and by virtue of the provisions of the Public Officers Special Provisions Decree No.17 of 1984 the Court had no jurisdiction to hear and/or entertain the suit. The action on completion of pleading went to trial. In the course of his address to the court, learned coursed for the defence raised yet another issue of jurisdiction of the trial court. He contended that by virtue of Decree 107 of 1993 amending section 230 (1) of the 1979 Constitution, a State High Court had no jurisdiction to adjudicate in the matter before the Court. In his judgment, the learned trial Judge considered the issue of jurisdiction raised before him and decided the issue against the defendant.
After going into the merits of the case the learned Judge found against the Defendant and entered judgment in favour of the plaintiffs. Being dissatisfied with the judgment of the trial court the defendant appealed to the Court of Appeal and there again questioned the jurisdiction of the trial Court. The Court of Appeal upheld the decision of the trial judge on the issue of jurisdiction and for other reasons dismissed the appeal. The defendant further appealed to the Supreme Court which allowed the appeal, having held that the trial court lacked jurisdiction.
Now, section 230 (1) of 1979 Constitution provides thus:-
"Notwithstanding any thing to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-
"(p) the administration or the management and control of the Federal Government or any of its agencies."
"PROVIDED that nothing in the provisions of paragraphs (p), (q) and (r) shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction and specific performance.
Both the original enactment on the Federal High Court (S.8 Federal Revenue Act, 1973 and/or S. 7 Federal High Court Act, Cap. 134, 1990) and subsequent statutory provisions (S. 230 (1) (p) 1979 Constitution (as amended) by Decree 107, 1993; Section 251 (p) 1999 Constitution) are clear as to both the nature, intendment, form and content of the jurisdiction of the Federal High Court. In that it is not just a court of exclusive jurisdiction but necessarily limited as to those subject matters over which jurisdiction has been given to it. (EZE V FEDERAL REPUBLIC OF NIGERIA (1987) 2 SCNJ 76 at 77). At law, it is settled that a court has jurisdiction under the following circumstances:
_ When the numbers and qualifications of the members are validly constituted, and no member is disqualified for one reason or another; and
_ The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction; and
_ The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of its jurisdiction". (MADUKOLU V NKEMDILIM (1962) 1 ALL NLR 595).
When a court is deciding whether it has jurisdiction or not over a matter before it, it should be guided by the following considerations:
_ Judges ought not to encroach or enlarge their jurisdiction because by so doing the courts will be usurping the functions of the legislature.
_ Nothing shall be intended to be out of the jurisdiction of the Superior court; but that which specially appears to be so, and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.
_ Courts are creatures of statutes and the jurisdiction of each court is therefore limited and circumscribed by the statute creating it.
_ The court is not hungry after jurisdiction.
_ Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expand it.
_ A court cannot give itself jurisdiction by misconstruing a statute. (Per Oputa, J.S.C in AFRICAN NEWSPAPERS LTD V NIGERIA (supra) at p. 159 - 160).
It is clear from the foregoing that the issue of jurisdiction touches both on the subject matter of the claim, the parties before the Court and other relevant considerations. It is further submitted that the various distinctions are not mutually exclusive, and are not without their individual peculiarity. They must be independently sorted out before a court can hold itself seized of jurisdiction. (TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR Pt. 117 p. 517 at 557 para D x 560 para D. The same view was also observed by Niki Tobi, J.S.C in his concurring judgment in NEPA V EDEGBERO (supra) ratio 3).
It is the proviso (S. 230 (1) (p), (q) and (r)) to section 230 (1) of the 1979 Constitution that is the crux of the conflict. In it's decision OKAFOR V HASHIM (2001 1 NWLR pt. 693 p.l83 at 185 per Bulkachuwa, J.C.A atp.192) the Court of Appeal, construing the proviso held as follows:
"This court has in the case of Nigerian Deposit Insurance Corporation v Federal Mortage Bank of Nigeria (1997) (pt. 490) 2 NWLR 735 interpreted section 230 (1) (d) and the proviso(s) while answering the question whether a State High Court has jurisdiction to entertain action between one bank and another held that:
_ The State High Courts have jurisdiction in the circumstances indicated , in the proviso.
_ The Federal High Court has exclusive jurisdiction in the circumstances indicated in the proviso.
_ The fact that the Federal High Court has exclusive jurisdiction in section 230 (1) (d) shall not apply to matters falling in within the circumstances of the proviso and does not entirely remove jurisdiction therein from the Federal High Court.
_ Both the Federal High Court have and can exercise concurrent jurisdiction in such circumstances.
"The matter to be adjudicated upon before the trial court is for a declaration and an injunction against the actions of the Federal Government.
In NIGERIAN DEPOSIT INSURANCE CORPORATION (LIQUIDATOR OR UNITED COMMERCIAL BANK LIMITED IN LIQUIDATION) v FEDERAL MORTGAGE BANK OF NIGERIA LIMITED (1997) 2 NWLR 739 at 756 (sic). The question that arose before the Court of Appeal then was whether a State High Court had jurisdiction to entertain the exclusive jurisdiction of the Federal High Court. And the Court held:
_ That the State High Court has jurisdiction indicated in the provisor (sic)
_ That the fact that the Federal High Court has exclusive jurisdiction in section 230 (1) (d) shall not apply to matters falling within the circumstances of the provisor (sic) and does not entirely remove jurisdiction therein from the State High Court.
_ That the Federal High Court shall not have exclusive jurisdiction in the circumstances indicated in the provisor (sic)
_ That both Federal and the State High Courts have and can exercise concurrent jurisdiction in such circumstances.
ONAH v ATAUDA (2000) 5 NWLR (Part 656) 244, MUSAH & 0RS v HASHIM (Unreported Appeal No. CA/A/39/99. The Supreme Court has also in the case of EGBUONU v BORNO RADIO (1997) 12 SCNJ 99 put its stamp of approval on the finding of the Court of Appeal where the above provisions were looked into that the High Court has jurisdiction to entertain an action challenging the suspension or termination of the appointment of an employee by his employer.
In the circumstances the trial Court was right to have found that it had jurisdiction to determine the matter." (Ibid).
The above principles were again highlighted by the Court of Appeal when the NEPA v EDEGBERO case came again before the same Bulkachuwa, JCA who read the lead judgment holding that the trial court was right to have assumed jurisdiction. (Note (2) pp. 82-83).
It is submitted that apart from specific jurisdiction conferred on the Federal High Court by the Constitution and parliament, its jurisdiction is severely limited. The issue of jurisdiction is one for the constitution and the law; it is not for the court to stretch itself by interpretation to seek jurisdiction for itself. (A.M.C v NPA (1987) 2 SCNJ p. 76). Furthermore, if the reasons for an enactment is known, the court should read such statute to reflect fairly and accurately the object of the enactment. There is no presumption in favour of the Federal High Court that it has jurisdiction since it is a court of limited jurisdiction (Ibid). The construction placed by the trial Court and the Court of Appeal in our view with the greatest respect to the Supreme Court is the right construction.
It is our further submission that, the facts of NEPA v EDEGBERO bordered on the (p) limb of section 230 (1) of the 1979 constitution vis aviz the proviso and should be restricted to its peculiar facts such that the ratio decidendi will be clearly distinguishable from any other case not purely "administrative" "management" "and or "control" of the Federal Government or any of its agencies. Therefore, the ratio should be confined to its peculiar facts and not be made a general ratio for future precedent. It will still take the same court to say so, otherwise it stands very clearly against any future contrary view. (See AWOLOWO v SHAGARI (1979) 6-11SC p. 51). Afterall, his Lordship, Ogundare, J-S-C held:
"It is not in dispute that the defendant NEPA - is a Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the plaintiff. It is also not disputed that the cause of action in this action arose out of the administrative action on decision of the defendant".
It is humbly submitted that the 'issue' or 'subject matter' on which the "administrative action" or "decision" is grounded be scrutinised to determine jurisdiction. As shown elsewhere (P.T.F. v I.F.M.S LTD (2002) 16 NWLR PT. 794 p. 586 at 590.), there are instances where both the Federal High Court and State High Courts have concurrent jurisdiction. Just as the Federal High Court's jurisdiction is impliedly ruled out, reading the words of other statutes.
In considering other matters or statute(s) in line with the topic, reference is made for instance to the Land Use Act, 1978. Pursuant to sections 39 and 41 and section 315 of the Constitution and decided cases. (See OYENIRAN v EGBETOLA (1997) 415 KLR PT. 51 p. 936 ADISA v OYINWOLA (2000) 10 NWLR pt. 674 p. 116; ACHEBE v NWOSU (2003) NWLR pt.), land matters ought not to be litigated at all under whatever guise before a Federal High Court. Section 230 (1) (r) and (s) of the Constitution (as amended) does not vest jurisdiction in the Federal High Court over Land matters. The phrase "subject to the Constitution in section 230 (1) and (r) of the Constitution (as amended) is an expression of limitation implying that any other provisions of the constitution shall govern, control and prevail over the said section 230 (1) (r). (See ACHEBE v NWOSU supra). In ACHEBE v NWOSU the Court of Appeal held:
".........Since the provisions of section 236 has been interpreted by the Supreme Court in a number of cases on the jurisdiction of the High Court in land matters under the Land Use Act, it was not necessary for the trial court to embark upon a reinterpretation of the section."
One appreciates the tension, pressure of work and the high expectations required of the highest Court in the land. His Lordship who delivered the lead judgment is very eminent. Notwithstanding, 'the Supreme Court is not final because it is infallible, but it is final in spite of same.' It is trite that no court is bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
Courts do not decide cases so that they may in future serve as precedents. That is merely an incidental aftermath based on the common law doctrine of precedent and stare decisis. Decisions are primarily made to settle particular issues in dispute in particular cases before the Court. A decision therefore draws its peculiar quality of justice, soundness and profoundness from the peculiar facts and surrounding circumstances of the case it has presumed to adjudicate vis aviz the applicable law. (TEWOGBADE V OBADINA (1994) 4 NWLR P.330). It has been held that "the Supreme Court does not ordinarily question its own decision except where there is very good justification for doing so." (See ADISA V OYINWOLA supra)
It will overrule its previous decision(s) among others if it deals with a matter of great importance and the Court thinks that a reversal is necessary.
For example, if the continuation of the case would perpetuate uncertainty in the law and be likely to cause hardship to the individual (Ibid).
The decision under discourse is caught up with all these principles. In the first place, it is never the function of the Court to render useless any law by the way it interprets and applies it. (TEWOGBADE V OBADINA supra). Secondly as the Court of last resort, it will not lend itself to perpetuate hardship or injustice. (EFFIOM V THE STATE (1995) NWLR). It is a well known fact that litigating matters in the High Court is an expensive business. Doing so in the present day Federal High Court is almost an invitation to spend a fortune. It cannot be said that one of the greatest handicaps to the attainment of justice is the attendant financial costs, this reason should therefore be a consideration when any Court is faced with construing the provisions of the statutes.
On the whole, we have tried to heed the counsel of the Supreme Court when it held inter-alia that "We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also time that this Court can do inestimable good through its wise decisions. Similarly the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per-incuriam, such counsel should have the boldness and courage to ask that such a decision should be overruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is better to admit an error than to persevere in error...." (Per Oputa, J.S.C. in ADEGOKE v ADESANYA ( 1989) 5 SC P. 92 at 110 - 111)
Mr. Daniel-Ebune practises law in Abuja
Editor's Note: Responses from lawyers would be welcome.