Disputes between States and the Federation: Examining the Jurisdiction of the Supreme Court (Part 4)

Introduction 

In the last episode of this discourse, we concluded our discussion of the meaning of ‘dispute’ for the purpose of the original jurisdiction of the Supreme Court. We then examined the legal dimensions of disputes between the States and the Federation, defining the Federation and the conceptual link between it and the Federal Government of Nigeria. We concluded it with a discussion of the principles for the invocation of the original jurisdiction of the Supreme Court in disputes between States and the Federation.

In today’s episode, we shall conclude our discussion of the principles for the invocation of the original jurisdiction of the Supreme Court, highlighting instances where the jurisdiction of the court cannot be invoked. We will then consider the possibility of an individual invoking the original jurisdiction of the court, and consider an apparent shift in the position in two circumstances which are discussed, starting with the locus standi of a State to sue in the court to protect its inhabitants or indigenes. Enjoy.  

Principles for the Invocation of the Jurisdiction of the Supreme Court (Continues)

However, some cases have also been struck out for feigning ignorance of this dividing thin line. For instance, in ATTORNEY-GENERAL OF LAGOS STATE v ATTORNEY-GENERAL OF THE FEDERATION (Supra), the Supreme Court declined original jurisdiction to entertain the action and struck it out. The Plaintiff had sought a declaration that the Value Added Tax Act, Cap. VI, Laws of the Federation of Nigeria, 2004, is null and void, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State, outside the legislative competence of the National Assembly, and perpetual injunction, restraining the Federal Government from continuing to give effect to the provisions of the said Act. The 1st Defendant filed a notice of preliminary objection, urging the court to strike out and/or dismiss the action, stating that the allegation of the Plaintiff is absurd, and is trying to usurp the acts of an agency of the Federal Government. In its lead judgement delivered by DATTIJO MUHAMMAD, JSC, the Apex Court held that: “the Plaintiff had approached the wrong court, because its claim clearly relates to the revenue of the government of the Federation, consequent upon the taxes of one of its agencies levies, and or/seeks the interpretation of the Constitution as to how the operation of the Constitution affects the 1st Defendant or any of its agencies. The dispute pertained to the operation of the Federal Inland Revenue Service (FIRS), in relation to an agency of the Plaintiff. Rather, it was the Federal High Court that had jurisdiction on matters agency in relation to taxation of companies and other bodies”.

In the same breath, in the case of ATTORNEY-GENERAL OF ABIA STATE v ATTORNEY-GENERAL OF THE FEDERATION (2007) 2 SC 146, the action of the Plaintiff was a challenge against the establishment and functions of the Economic and Financial Crimes Commission (EFCC), as a Federal agency operating in the States of the Federation. The Supreme Court held that this was not a dispute between the Plaintiff and the Federal Government; neither was it a dispute between the Plaintiff and the rest of the State Governments, who were joined as co-Defendants . 

Instances Where the Jurisdiction of the Supreme Court Cannot be Invoked

The jurisdiction of the Court cannot be invoked where: 

a. There is a dispute on any criminal matter pursuant to the Court’s original jurisdiction.

b. Any dispute arising between individuals at first instance.

c. Any dispute between persons and the Federal Government.

d. Any dispute between persons and a State Government.

e. Any action instituted by a corporate or statutory body.

f. Any action wherein a corporate body/institution/organisation is made a party.

g. Any dispute between/amongst Local Government or between a Local Government and a State/the Federal Government. 

The above instances were stated in the concurring judgement of I.T MUHAMMAD, JSC, as he then was, in the case of ATTORNEY-GENERAL OF RIVERS STATE v ATTORNEY-GENERAL OF AKWA IBOM STATE  (2011) All FWLR (Pt. 579) 1023 S.C.

It is almost impossible to have this intriguing discourse without making reference, or highlighting the need for locus standi before a matter can be filed at the Supreme Court.

Locus Standi: Can an Individual Approach the Supreme Court? 

Certainly, the answer to the poser is NO. In RE: LAGOS CHAMBER OF COMMERCE AND INDUSTRY (2019) 1 NWLR (Pt. 1652) 91, the Intervener/Applicant approached the Supreme Court via motion, on seeking an order of the court granting leave to be heard in the proceedings between the Plaintiffs and the Defendant, on whether the questions submitted by the Plaintiffs for determination in its amended Originating Summons, ought to be heard by the Supreme Court in its original jurisdiction. The Supreme Court held that, the Applicant was not one of the parties recognised by Section 232(1) of the Constitution to invoke the original jurisdiction of the Supreme Court. It further held that, to that extent, the application was frivolous and the Applicant was a busybody in a matter that did not involve her.

A Shift of Position

Similarly, in ATTORNEY-GENERAL OF ONDO STATE v ATTORNEY-GENERAL OF THE FEDERATION& 19 ORS. (1983) 2 SNLR 269, the Ondo State Government brought an action against the Federal Government and 18 other States of the Federation under the Supreme Court’s original jurisdiction. However, the 20th Defendant was the then electoral body, that is, the Federal Electoral Commission (FEDECO). The Apex Court held that the Electoral body, not being a State, cannot properly be brought before it as a court of first Instance. 

However, the Supreme Court may have tacitly shifted its earlier position, and nodded to this practice in circumstances such as:

1. Where a person suing through or suing the Attorney-General; and

2. Where the main claim is between a State or States and the Federation. 

Thus, in the case of ATTORNEY-GENERAL OF RIVERS STATE v ATTORNEY-GENERAL OF BAYELSA STATE (2013) 3 NWLR (pt. 1340) 123 SC, the Apex Court held that though Section 232(1) has indicated that only governments can be competent parties when the original jurisdiction of the Supreme Court is being invoked, suing through and or suing a sitting Attorney- General will not make the suit incompetent, as Section 20 of the Supreme Court Act, 2004 permits that. 

Also, in ATTORNEY-GENERAL OF RIVERS STATE v ATTORNEY-GENERAL OF AKWA IBOM STATE (Supra), the Supreme Court held that even if other persons or institutions are made parties to a suit whereby the original jurisdiction of the Supreme Court has been invoked, such original jurisdiction will still avail if the main claims are between the State and the Federal Government or between States, because the existence of such dispute will fulfil the requirements of Section 232 of the Constitution.

Locus Standi of States to Protect their Citizens

Generally, the issue of locus standi was recently addressed by the Supreme Court, in the landmark case of ATTORNEY- GENERAL OF KADUNA STATE & ORS. v ATTORNEY-GENERAL OF THE FEDERATION & ORS (2023) LPELR-59936(SC) @(Pp 37 – 39 Paras B – B), where EMMANUEL AKOMAYE AGIM, JSC, illuminated thus:

“Let me now consider the argument that the Plaintiffs have no locus standi to bring the suit, because the questions raised for determination and the reliefs sought for in the Originating Summons and the affidavit in support thereof do not show any dispute of facts or law, on which the existence or extent of their legal right depends. It is correct that S.232(1) of the 1999 Constitution provides that the dispute between the Federation and a State or between States, over which this Court can exercise original jurisdiction, must be one that involves any question of law or fact on which the existence or extent of a legal right depends. In other words, the dispute must arise over the Plaintiff’s claim or assertion of the existence or extent of a right created or recognised and enforceable by law. This is the right, the breach of which entitles the Plaintiff to remedy, and gives him a right of action and a cause of action. The rights they assert in this suit are the right to be first consulted by the President as constituents of the Federation, and the right to reasonable notice as such constituents before the President gave the directive or approval to the CBN to implement the change of currency notes, the right to protection of their States’ governance, economic and social order against massive disruptions and hardships that have resulted from the hasty and not well thought through and organised implementation of the change, and the right to the establishment of adequate infrastructure and measures to prevent the said disruptions and hardships. It is obvious that the directive has been carried out. The fact is, common knowledge is not reasonably open to question and does not require proof, that the implementation of the directive has continued to deprive all persons and the Plaintiffs access to a substantial part of their funds in banks, thereby forcefully and illegally depriving them their rights of ownership and use of the said funds for State functions. The President’s national broadcast of 16-2-2023, confirms this. Inherent in their status as constituents of the Federation under a democratic constitution, is their right to be consulted by the President before the exercise of any executive power of such magnitude as can have a far-reaching effect on the governance, economic and social order of each constituent of the Federation. Such a right is inherent in the idea of a Federation in a democracy. Without it, the Federation looses its sovereignty, and the President becomes the sovereign and the Government of Nigeria a dictatorship.” (To be concluded next week)

THOUGHT FOR THE WEEK

“Presidents come and go, but the Supreme Court goes on forever”. (William Howard Taft)