Presidency v NASS: Does Supreme Court Have Original and Exclusive Jurisdiction?

Introduction 

A  rather misleading and erroneous practice has evolved in our legal and political systems for over twenty years now (since April 2002 to be precise), whereby the National Assembly (NASS) appears to have hoodwinked the Supreme Court into believing that it has the power to confer upon it both original and exclusive jurisdiction to hear disputes at first instance between the Presidency and National Assembly. Nothing could be further from the truth! No such exclusive jurisdiction exists, and it is difficult to understand or rationalise how we have persevered with this unconstitutional practice for so long, without proper scrutiny. With profound respect to the Presidency, National Assembly and indeed, the Supreme Court, the relevant section of the 1999 Constitution (as amended) does not make any reference to exclusive jurisdiction in conferring the Supreme Court with additional original jurisdiction, and it is astonishing to say the very least, that neither our eminent jurists or revered Senior Advocates have spotted or stumbled across this anomaly thereby, allowing this practice to continue unchallenged. 

Constitutional Provisions Relating to Supreme Court’s Original and Exclusive Jurisdiction

Section 232(1) of the 1999 Constitution (as amended) states as follows: 

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 exists. 

Section 232 (2) further states that: 

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. 

It is by virtue of Section 232(2) of the 1999 Constitution (as amended) and outlined above, that the National Assembly passed the Supreme Court (Additional Original Jurisdiction) Act 2002. 

Section 1 (1) (a) of the said Act states: 

In addition to the original jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall to the exclusion of any other court have original jurisdiction in any dispute between 

(a) the National Assembly and the President 

(b) the National Assembly and State Houses of Assembly; and 

(c) the National Assembly and a State of the Federation, 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. 

The power of the National Assembly to confer additional jurisdiction on the Supreme Court is as stated under Section 232 (2) of the 1999 Constitution (as amended) and outlined above. That section of the Constitution makes no reference whatsoever to the use of the words to “the exclusion of any other court”, yet the National Assembly in drafting the Supreme Court (Additional Original Jurisdiction) Act 2002 has craftily incorporated the words “….to the exclusion of any other court”, and used that to deceive legal practitioners into believing that the additional jurisdiction conferred on the Supreme Court is indeed, to the exclusion of any other court; but, as we have seen from the relevant text of the Constitution above, Section 232(2) does not specify or use the words “to the exclusion of any other court”. It follows therefore, that this particular aspect of the Supreme Court (Additional Original Jurisdiction ) Act 2002 ought to be struck down and declared unconstitutional, under Section 315(3) of the 1999 Constitution (as amended). Only a constitutional amendment which the National Assembly has the power to initiate by virtue of Section 9(1) of the 1999 Constitution (as amended) would suffice in conferring the Supreme Court with additional jurisdiction to the exclusion of any other Court; but, as we all know, this is a long tedious, arduous and cumbersome process which may not pass easily, if at all. 

What is the Difference between Original and Exclusive Jurisdiction?

It is said that a court enjoys original jurisdiction when it has got the authority to hear the case in its first instance; but, when we say that it also enjoys exclusive jurisdiction or to the exclusion of any other court, then it means that it is the whole and sole authority to hear and determine the case, and that no other court has the power. 

In the US which was the inspiration behind the drafting of both our 1979 and the subsequent 1999 Constitution, their Supreme Court coupled with longstanding congressional practice, focuses on the fact that the Supreme Court’s original jurisdiction is not necessarily always exclusive. In some cases, Congress has granted the lower federal courts concurrent jurisdiction, meaning that cases subject to original Supreme Court jurisdiction may either be filed directly at the Supreme Court or in one of the lower Federal Courts. Furthermore, in the US, the Supreme Court has adopted a liberal construction to its original jurisdiction, and the common view is that its original jurisdiction should be invoked sparingly. The Courts have thus, held that original jurisdiction is limited, should manifestly be sparingly exercised, and should not be expanded by construction (contrast with Section 232(2) of the 1999 Constitution, which has the effect of extending the Supreme Court’s original jurisdiction). The US Supreme Court has further emphasised that its exercise of original jurisdiction is not obligatory but discretionary, to be determined on a case-by-case basis on grounds of practical necessity. The US Supreme Court has therefore, explained that it will exercise original jurisdiction only in appropriate cases. It has further stated that the question of what constitutes appropriate, concerns the seriousness and dignity of the claim; yet, beyond that, it may necessarily also  involve the availability of another forum where there is jurisdiction over the named parties and where the issues tendered may be litigated, and /or where appropriate relief may be obtained. 

Although as already pointed out, the Supreme Court in the US has exercised original jurisdiction sparingly, where claims are of sufficient seriousness and the dignity and resolution by the judiciary is of substantial concern; even if the Supreme Court can entertain a case, it may in cases of concurrent jurisdiction exercise its discretion and thereby decline to exercise original jurisdiction, and instead, require that a case first proceed through the lower federal courts. Examples of where the US Supreme Court has Original, but Not Exclusive jurisdiction over cases is outlined under Article III, Section 2, Clause 2: of the Supreme Court Act namely: In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party. The above examples perhaps, best explain not only the real purpose behind Section 232 (2) of the 1999 Constitution, but crucially the fact that the Supreme Court in cases where it has original but not exclusive jurisdiction, may nevertheless, retain the discretion to determine whether it wants to hear the case if it considers it to be urgent or of fundamental /national importance. If it doesn’t, it may then refer it to a lower court to hear it at first instance. 

The Nigerian Supreme Court case of (1) The President of the Federal Republic of Nigeria (2) Attorney General of the Federation v (1) National Assembly & 2 Ors  SC /CV /504/ 2022 and reported in ThisDay Lawyer two weeks ago was a case in which the Supreme Court held that the Plaintiffs who are not political appointees have no legally enforceable right, or justifiable dispute in relation to the questions raised for determination in their Originating Summons for them to be called upon to exercise its additional original jurisdiction. Now, this was, perhaps, an ideal category of case that could easily have been referred by our Supreme Court to a lower court with concurrent jurisdiction, if we had been adopting this practice. The dignity of the Supreme Court suggests that it is not all manner of disputes (whether or not it’s between the Presidency and the National Assembly), that should take up the precious time of the Court. Worse still,  the National Assembly has by stealth, imposed all its disputes with the Presidency on the Supreme Court even in circumstances where ordinarily it should be initiated in a lower court to hear at first instance, if not for the mischief of Section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act 2002, which we now know is unconstitutional. 

Conclusion  

The best-known power of any court in deciding issues relating to government, is judicial review, or the ability of a court to declare a legislative or executive act to be in violation of the spirit of the Constitution (written or unwritten), even if it is not found within the text of a written Constitution itself. The Courts in the US established this doctrine in the celebrated case of Marbury v Madison (1803). In this case, the Court had to decide whether an Act of Congress or the Constitution, was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that, the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the supreme law of the land, the Court held that an Act of Congress that is contrary to the Constitution, could not stand. This is almost on all fours with the mischief of the Supreme Court (Additional Original Jurisdiction Act) 2002.  The difference being that the US Supreme Court unlike our Supreme Court spotted that Congress was acting in ultra vires of the US Constitution. Nevertheless, it’s interesting to note that in subsequent cases, the US Supreme Court also established its own authority to strike down State laws found to be in violation of the Constitution. 

The Nigerian Supreme Court needs to be more constructive in establishing its own authority within its own plethora of laws, to judicially review executive and legislative acts contrary to the spirit and wording of the Constitution beyond mere reliance on Section 315(3) of the 1999 Constitution (as amended). If it is to achieve this goal, it’s established position on locus standi and the public interest requirement in bringing civil actions, will need to be revisited in the near future. This is what is expected of our Supreme Court, and to aid them in this regard perhaps, they should start hiring research assistants who are academically inclined, rather than rely to their detriment on the written addresses of eminent legal practitioners which in many instances, turn out to be nothing more than self serving. This way, there can be no question whatsoever, of our Apex Court ever again having to play second fiddle to mischief makers within the National Assembly.