Disputes Between States and the Federation: Examining the Supreme Court’s Jurisdiction (Part 1)

Introduction 

The Judiciary is the third arm of government, and the repository of the powers of adjudication and settlement of disputes. It is a very central arm of government – with overwhelming responsibilities and duties. The Judiciary is indispensable in all political administrations – no matter the model or nomenclature of such government. It is the custodian of the Constitution, and gatekeeper of the laws in any system of government. It adjudicates on disputes among the citizens; between citizens and governments; and between the government’s interest.

Under the Constitution of the Federal Republic of Nigeria, 1999, as altered, the Judicature is provided for in Chapter 6. It should be noted that, Section 6 of Constitution also empowers the National Assembly to make laws for the establishment of some courts and conferment of jurisdiction on same. This paper discusses the jurisdiction of the Supreme Court, to entertain disputes between States and the Federation.

Understanding of the Concept “Jurisdiction”

Jurisdiction simply means, the authority which a court possesses to decide matters submitted to it. It is the whole basis of taking cognisance of matters presented before a court in a formal way, for the purpose of adjudication. SPDC Nig. Ltd v Isiah (2001) 11 NWLR Pt. 723, Pg 168 at 179; Mobil Producing Nig Unltd v LASEPA (2003) FWLR Pt. 137, Pg 1029 at 1052.

The Apex Court graphically illustrated this position in ATTORNEY- GENERAL OF ANAMBRA STATE v ATTORNEY-GENERAL OF THE FEDERATION (2007) All FWLR Pt. 379 Pg 1218 at 1280  where it held, per I.T Muhammad JSC (as he then was) thus:

“Jurisdiction to a court of law, is equated to blood in a living animal. Jurisdiction is the blood that gives life to the survival of an action in a court of law, without which the action will be like an animal that has been drained of its blood. It will cease to have life, and any attempt to resuscitate it without infusing blood into it, would be an exercise in futility.”

Jurisdiction is the limit imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject-matter of the issues, or to the persons between whom the issues are joined, or to the kind of reliefs sought. Petroleum (Special) Trust Fund v Fidelity Bank & Ors (2021) LPELR-56625(SC) at Pp 44 – 45 Paras F – C. In the fairly old case of AG FEDERATION v AG OF ABIA STATE & ORS, (2001) LPELR-24862(SC); pp 114, paras C-D per Adolphus Godwin Karibi – White, JSC, (dissenting), illuminating, noted that:

“The word jurisdiction means the authority the court has to decide matters before it, or to take cognisance of matters presented in a formal way for its decision (See Ndaeyo v Ogunnaya (1977) 1 SC 11; National Bank v Shoyoye (1977) SC 181).”

The Court of Appeal also took a bite in determining the meaning of jurisdiction in the more recent case of AJAYI v ALARAB PROPERTIES LTD (2021) LPELR-56073(CA) per UGOCHUKWU ANTHONY OGAKWU, JCA at (Pp 24 – 25 Paras F – B), thus:

“Now, the concept of the jurisdiction of a court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class, or (ii) the right of a court to exercise its powers over a particular subject- matter, or res in dispute. In the broader sense of the right of a court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all.”

How to Determine Jurisdiction: The Supreme Source

On what determines jurisdiction, the intermediate court of Appeal addressed the matter in DEPUTY SHERRIF, FHC LAGOS JUDICIAL DIVISION & ANOR v USIEBEMHEN (2022) LPELR-57472(CA) per Abubakar Sadiq Umar, JCA, At Pp 16 – 16, Paras B – D, thus:

“In determining whether a court of law has jurisdiction to entertain an action, the court must as a matter of law, examine carefully the pleadings and other averments of the Claimant in the statement of claim. In order words, questions relating to locus standi (legal standing to maintain an action); whether a suit discloses a reasonable cause of action or constitutes an abuse of the court process, it is the duty and incumbent on the court to scrutinise and dissect the Claimant’s pleadings, which captures the grounds and the interests for approaching the court to ventilate a grievance.”

Key Points to Note About Jurisdiction

Jurisdiction is not just a procedural matter, it is a substantive issue in litigation. An objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed, and the party raising such objection need not bring it under any rule. See A.G. KWARA STATE v OLAWALE (1993) 1 N.W.L.R (Pt.272) 645 at 674-675. Issues of jurisdiction cannot be waived, nor can they be conferred by parties consenting among themselves to vest a court with jurisdiction, where none exists. See NIGERITE LIMITED v DALAMI (NIG.) LIMITED (1992) 7 N.W.I.R (Pt.253) 288 at 297.

Establishment of the Supreme Court of Nigeria

The Supreme Court is established in Section 230(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In sub-section (2) of Section 230, it is provided that the said Court “shall consist of the Chief Justice of Nigeria and such number of Justices of the Supreme Court, not exceeding twenty-one as may be prescribed by an Act of the National Assembly.” It is therefore, worthy of note that, the phrase – not exceeding twenty-one is an implied amendment of Section 210 of the 1979 Constitution and Section 228 of the 1989 Constitution, which provided for a maximum of 15 Justices. Thus, Section 230 is targeted at expounding the frontiers of the number, in order to reduce the burdensome workload on their Lordships. The use of the word “shall”, connotes mandatory, while ‘and’ is conjunctive.

 How Justices of the Supreme Court are Appointed 

Section 231(1) and (2) of the Constitution, provides that:

“The Chief Justice of Nigeria and other Justices of the Supreme Court shall be appointed by the President on the recommendation of the National Judicial Council, subject to confirmation by the Senate.”

 By the provisions of Section 231(4) and (5), where the office of Chief Justice of Nigeria becomes or where vacant, the person holding the office is for any reason unable to perform the function of his office, the President of Nigeria has the power to appoint the most senior Justice of the Supreme Court to perform those functions for not more than three months, except as otherwise recommended by the National Judicial Council (NJC). However, the President cannot re-appoint a person whose appointment has lapsed. It is therefore, always advisable that the acting appointment is confirmed to avoid a constitutional crisis. It should be noted also that by virtue of the provisions of Section 231(3), a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court unless he is qualified to practice as a legal practitioner in Nigeria, and has been so qualified for a period of not less than fifteen (15) years.

Having blazed the trail through a brief expository of the Supreme Court of Nigeria, it is germane at this juncture to examine what affects the jurisdiction of a Court, before delving into the crux of this vista.

Factors that Affect the Jurisdiction of a Court

It is trite that an objection to jurisdiction, is undoubtedly an objection to the competence of the court to entertain such a suit. See the case of WORGU BOGGA LTD AND ANOR v HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY (2009) LPLER- 20032.

The determinant factors of jurisdiction were laid to rest in the celebrated case of MADUKOLU v NKEMDILIM (1962) SCNJ 72, where It was held that a court is competent to adjudicate upon a case when: 

A. It is properly constituted with respect to the number and qualification of its membership;

 B. The subject-matter of the action is within its jurisdiction; 

C. The action is initiated by due process; 

D. Any condition precedent to the exercise of its jurisdiction has been fulfilled. Soyannwo v Akinyemi (2001) 8 NWLR (pt. 714) Pg 95 at 116 Paras H – B; Evbuomwan v Bendel Insurance Co Plc (2001) 1 NWLR (Pt. 694) at 396 para 3.

These factors are joint, and the absence of any one affects the jurisdiction of the court in deciding the case. See the case of CAVENDISH PETROLEUM NIGERIA LTD & ORS v DERIBE & ANOR (2014) LPELR-23350(CA) per Ibrahim Shata Bdliya, JCA, at Pages 21 – 24 Paras F – A) wherein it was held that: 

“A Court is said to have jurisdiction and therefore, competent to determine a suit when: (a) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or other; (b) 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 (c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. These preconditions for a court to be seised of jurisdiction are conjunctive, and the non-fulfilment or absence of any of them would automatically rob the court of jurisdiction to hear and determine the suit. See Drexel Energy & N.R. Ltd. v Trans Inter Bank Ltd (2008) 18 NWLR Pt.1119 P.388 at 417. See the case of Madukolu v Nkemdilim (Supra). 

To further appreciate this discourse, it is quite pertinent to examine the above-mentioned factors elucidated in Madukolu v Nkemdilim (Supra).