Disputes Between States and the Federation: Examining the Supreme Court’s Jurisdiction (Part 2)

Introduction 

The first part of this piece was foundational: it discussed the import and legal basis of jurisdiction as an incident of judicial power; how it is determined and the highest institutional source of its expression – the Supreme Court. We analysed the composition of the court and factors which affect its jurisdiction.

In this piece, we go deeper into the constitution of the Apex Court, in terms of its membership and how it impinges on its jurisdiction. We then move on to a discussion of how the subject-matter of a case determines a court’s jurisdiction, and the conditions precedent to assumption of jurisdiction by a court. 

We then dwell, in even greater detail, with the constitution of the Apex Court, before going on to define ‘controversy’ and ‘dispute’; the latter, first generally, before concluding with its meaning for the purpose of invoking its original jurisdiction. Enjoy.

The Constitution of a Court and the Qualification of its Members 

Membership Jurisdiction 

Where a court is not duly constituted as to the number and qualification of the Judges or Justices to sit in adjudication over a matter, the court is robbed of jurisdiction to adjudicate on that matter. For instance, the number of Justices required to sit at the Supreme Court to hear a case that borders on its original jurisdiction is seven. Thus, where five Justices sit to adjudicate over a matter, the court will clearly be without jurisdiction due to improper constitution. Again, assuming a seven-man panel sits on the matter and one of the Justices is only thirteen years post-call at the Bar, the entire panel is disqualified and any exercise it carries out  will fail, as no amount of beauty in its adjudication can save it.

Subject-Matter Jurisdiction 

For a court to assume jurisdiction, the subject-matter must be within its jurisdiction. The Constitution or statute that creates the court, prescribes the subject-matter it can adjudicate upon. Consequently, where a matter falls within the subject-matter of a court, the court is said to have a subject-matter or substantive jurisdiction; but where it falls outside the subject-matter, the court is said to lack jurisdiction. Any exercise thereto in such a case shall be rendered in futility, as its decision shall be quashed on appeal. For instance, a dispute between two States, or between a State and the Federation is within the subject-matter of the Supreme Court’s original jurisdiction. Consequently, where at the Supreme Court other parties than these are involved, any exercise thereto shall be rendered an exercise in futility, and any decision emanating from it shall also be quashed. The scenario plays, out where a dispute which involves parties, over before which the Apex Court has jurisdiction, is filed before any other court. 

Conditions Precedent to Assumption of Jurisdiction 

For a court to properly assume jurisdiction, “due process” must have been followed in initiating the same. However, we must bear in mind that there could be a mere unsubstantial technicality that does not affect the competence of the court, and a substantial technicality which affects the competence of the action, and robs the court of its jurisdiction. In the case of CITY ENG. (NIG) LTD v NAA 1999 11 N.W.L.R. Pt. 625 Page 80 court held that, there is a distinction between mere or unsubstantial technicality in proceedings that are competent and within the jurisdiction of a trial court, and a substantial technicality which amounts to a condition precedent to the commencement of an action, and which renders the proceedings incompetent and manifestly or incurably defective. Interestingly, while the former may be waived, the latter, as a general rule, may not be waived, because acquiescence does not and cannot confer jurisdiction to a court. For instance, while a procedural rule of court may be waived where it does not occasion a miscarriage of justice, statutory provisions containing conditions precedent to the commencement of an action, cannot be so waived. To further appreciate this position, some examples of conditions precedent which, if not complied with, may render proceedings incompetent and rob the court of jurisdiction are, amongst others, as follows: 

1. Giving Pre-action Notice

2. Limitation Act

4. Where there is no service of the court process

5. Locus Standi 

6. Geographical Territory

7. Financial Limit

Jurisdiction of the Supreme Court of Nigeria

The Jurisdiction of the Supreme Court of Nigeria is provided in Section 232 of the Constitution and the Supreme Court (Additional Original Jurisdiction) Act, 2002. The jurisdiction may be original/exclusive, appellate or supervisory. However, this discourse focuses on the original/exclusive jurisdiction of the Supreme Court, and the same is limited only to disputes between States and the Federation. For purposes of clarity, it is necessary to reproduce the provisions of the law – verbatim ad literatim. 

Section 232 (1) of the 1999 Constitution, as amended provides thus: 

“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”.

In A.G. OF THE FEDERATION v A.G, OF ABIA STATE & 35 ORS 2001 11 N.W.L.R. (PL. 725) pg. 689 at 736, at [G-H] Belgore, JSC examined the provisions of Section 232(1) of the 1999 Constitution and held that:

1. The sub-section presupposes that there must a dispute either between the Federation and States or between States; and

2. The disputes must pertain to the existence of a legal right or its extent; it must also relate to a question of law or a fact or both.

Section (1) and (2) of the Supreme Court (Additional Original Jurisdiction) Act, 2002, provides thus:

(1) “In addition to the 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 any State House of Assembly; and

(c) the National Assembly and the 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.

(2) Nothing in this Act shall be construed as conferring original jurisdiction upon the Supreme Court with respect to any criminal matter.”

Definition of Terms

“Dispute”

This takes us to the meaning of “dispute” generally. The word “dispute”, is not defined in our Constitution. However, the Courts have had cause to pronounce on its meaning. In Webster’s New Twentieth Century Dictionary (unabridged); the term “dispute” is defined as being synonymous with controversy. It defines it as “an attempt to prove and maintain one’s own opinions, argument or claims of another, controversy in words.” The Black’s Law Dictionary, (5th Edition), defines ‘dispute’ as: “A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegation on the other. The subject of litigation is the matter for which a suit is brought and upon which issue is joined…”.

“Controversy”

A dispute under the aforementioned Section 232(1) of the Constitution, must be one that is appropriate for judicial determination. It includes suits of a civil nature, and must raise an issue or question (whether of law or fact) on which the existence or extent of a legal right depends. It must be real and substantial. It must be definite and concrete. The word “controversy” was considered in the case of AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONN v HARWORTH  300 US 227 57 S.CL. 461; at Pg. 464. In that case, Chief Justice Hughes said: “a controversy in this sense, must be one that is appropriate for judicial determination. A justiciable controversy is thus, distinguished from a difference or dispute of a hypothetical or abstract character, from one that is academic or moot. … It must be a real and substantial controversy, admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts”.

In A.G. OF THE FEDERATION v A.G, OF ABIA STATE & 35 ORS 2001 11 N.W.L.R. (Pt. 725) Pg. 689 at 73 the word ‘dispute’ was defined by my Lord, S.M.A. Belgore, JSC, C.J.N. (as he then was), as follows: “To my mind, a dispute involves acts of argument, controversy, debate, claims as to rights, whether in law or fact, varying opinions, whether passive or violent, or any disagreement that can lead to public anxiety or disquiet. I will not close the category of disputes”. Suit No. S.C. 27/2010: (2011) 8 N.W.L.R. (Pt. 1248) 31 at 166-167. A dispute is a conflict of claims or rights or demands on one side, met by contrary allegations on the other side. 

“Dispute” for the Purpose of Invoking the Original Jurisdiction of the Supreme Court

In A.G ABIA v A.G FEDERATION Suit No. SC. 73/2006: 2007 6 N.W.L.R. (Pt. 1029) 200 at 219-220 Tabai, J.S.C. held inter alia  thus: “With respect to the construction given to the word “dispute”, the opinion of the Court (per Belgore, JSC as he then was) (in A.G. OF THE FEDERATION v A.G, OF ABIA STATE & 35 ORS (Supra) is quite apposite, in determining the issue of this Court’s jurisdiction in this case. (To be continued).

THOUGHT FOR THE WEEK

“There should be only one political ideology, and that is good governance.” (Amit Abraham)