The Central Bank of Nigeria announced to the public on October 2022 the “Naira Redesign and Daily Cash Withdrawal Limit policies”, and slated the 31th day of January, as the final day for the use of N1,000, N500, and N200 notes.
Three of the Northern States namely kogi, Kaduna and Zamfara states, instituted an action directly at the Supreme Court, questioning the federal government on the polices and consequentially prayed the Supreme Court to restrain the federal government from enforcing the February 10 2023 deadline on Naira swap.
The ex parte application, was granted by the court, and the court ordered that both old and new naira notes should coexist as legal tender till 15 February 2023, when the Motion on Notice in the case would be heard.
Undoubtedly, witty submissions cum analyses have been made pertaining the jurisdiction of the Supreme Court and the order it made. In that vein, the opinion expressed in this article shall respectfully, stand as a contribution to the existing ones, particularly, shinning light on the darkness beclouding the jurisdiction of the court to entertain the matter.
Keywords: Constitution, Jurisdiction, Necessary Party, Interim Order, Agency And Principal.
- Judicial Interpretation of the Word “Jurisdiction”
It is clear that this concept has no universal nor definite meaning, but meanings attached to it attract no contestation across the legal world, Nigerian courts inclusive.
It is imperatively, I reiterate from lines of authority and adumbrate thereon for the purpose of this legal opinion, that jurisdiction is a term of comprehensive import, embracing every kind of judicial action.
Yes, it has different meanings in different contexts; it 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 relief sought. A. G Lagos state v Dosunmu (1989) 3 NWLR (PT. 111) 552; N. E. P. A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79.
Jurisdiction is conferred on courts by the constitution or statue and it is a threshold issue – the heartbeat of a case, to the extent that once a court lacks jurisdiction to hear a matter and it proceeded to hear such matter, irrespective how well conducted, the entire proceedings would be a nullity.
This explains why jurisdiction could be raised at the Supreme Court, Court of Appeal and High court at any time. See; Dangana v. Usman (2013)6 NWLR (Pt. 302) 692; Barclays Bank of Nigeria v. Central Bank of Nigeria (1976) 6 SC 175.
The Governors of the three states in commencing the action at the Supreme Court directly, were supposed to have critically examined whether the matter could be entertained by the Supreme Court.
It is unusual for the Apex court to have jurisdiction on such matter. The combine reading of sections 232 and 233 of the Constitution is crystal clear on the issue of jurisdiction of the Supreme Court.
What Constitutes Jurisdiction of Court
Our courts have helped in outlining the ingredients of jurisdiction, In Isah v. INEC (2016) 18 NWLR (PT. 1544) 175 SC. The same are provided below:
- When it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or the other; 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 its jurisdiction; and
- The case comes before the court initiated by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction.
Obviously, the afore listed requirements must co exist conjunctively before a court can be said to have jurisdiction
Therefore, it means that where a court has no jurisdiction to hear and determine a case and goes ahead to do so, it engages in a futile exercise as the decision arrived at in such a case, amounts in law to a nullity, irrespective of how well the proceedings were conducted. See; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Duke v. Akpabuyo L. G (2005) 19 NWLR (Pt. 959) 130.
The justices of the Supreme Court were properly constituted which invariably imply that there is no disqualification. However, for the subject matter, section 251 (1)(a) to (r) of the Constitution vested in the Federal High Court to the exclusion of others, jurisdiction in matters regarding the federal government and it’s agencies.
- The Effect of the Supreme Court Reaching a Decision in the Matter Where it Obviously Has No Jurisdiction,
It is a common knowledge that a court cannot entertain a cause which it has no jurisdiction to adjudicate upon. Where a court takes upon itself it to exercise jurisdiction where it does possess it, its decision amounts to nothing. See Madukolo v. Nkemdilim (1962)SCNLR 341; Ibeanu v. Ogbeide (1994) 7 NWLR (PT. 359) 697; Peenok Invest. Ltd. v. Hotel presidential Ltd. (1982)13 NSCC 477.
By virtue of section 232(1) to 233 of the Constitution, the Supreme Court prima facie has no jurisdiction in the instant case. Against the backdrop, only the Federation and the State or States and States can bring an action involving questions of law and facts to be resolved by the Supreme Court of Nigeria.
In the circumstance of this case, Supreme Court with due respect may be said to have carried out an exercise in futility which has no precedent in Nigeria.
- Whether a Party Can Impose Jurisdiction on Court and Options Open to Court and Litigant Where Court Lacks Jurisdiction
It should be emphasized that where a court lacks jurisdiction, a party cannot use any statutory provisions or common law principle to impose on the court because absence of jurisdiction is irreparable in law. The matter ends there.
The only procedural duty of the court in such circumstance is to strike out the suit, while the litigant will be left with the option of filing the action in a court of competent jurisdiction. Umanah v. Attach (2006) 17 NWLR (PT. 1009) 503; KLM Airlines v. Kumzhi (2004)8 NWLR (PT. 875) 231.
Would it suffice to say that the action instituted by the three Governors have invoked jurisdiction of the Supreme Court, even when it obviously lacks such?
If it is, the court will be left without options than to strike the matter out immediately.
Supreme Court will have to clear this issue when the matter is heard on Notice as is expected. And, in the event that the Supreme Court elevates itself to having jurisdiction, the decision shall be final and binding on parties.
- Exclusive Jurisdiction of the Federal High Court Over Matters Involving the Federal Government and or its Agencies
Issues involving the federal government and its agencies are matters within the boundary of the Federal High Court, to the exclusion of others. This is the plain and unequivocal provision of section 251(1)(p)(q) and (r) of the 1999 Constitution.
- The provision vests absolutely an exclusive jurisdiction on the Federal High Court on civil causes and matters arising from the administration, managers and control of the Federal Government and it’s agencies;
- the operation and interpretation of the Constitution as it affects the federal government and its agencies; as well as,
- any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the federal government and it’s agencies.
Flowing from the above, it begs the question whether the Central Bank of Nigeria is an agent of the federal government. This question is answered elsewhere in this article.
- The Purpose of an Interim Injunction Granted Ex-parte.
In Abatola v. Aladejana(2001) 6 SC 124, “it is crystal clear, that an order of court would be binding on the parties to a suit, not contrary. Interim injunction is not an open ended restrictive order but one for a short period of time, preservatory in nature, at the early stage in the proceedings.
In this light, an ex parte order of injunction is not intended to be a temporary victory to be used against the adverse party indefinitely, rather an interim order of injunction is to last for a short period pending the determination of motion on notice and not to hang on the opposing party or to overstay. See Alhaji Aminu Ahmed & co. (Nig.) Ltd v. A. C. B Ltd (2001) 10 NWLR (Pt. 721) 391; General Oil Ltd v. Oduntan (1990) 7 NWLR (Pt. 163) at 423.
It is no doubt that the Supreme Court exercised its power for justice sake. It is obvious that the current money policy of the CBN is creating substantial financial problems in Nigeria, therefore to maintain status quo and possible inflation, the interim order could satisfy the demands of the masses whose representatives initiated the action for an extension.
Ordinarily, the order for extension would not be binding on a party who wasn’t joined as a necessary party. For the CBN to be bound by the order, it should be joined in the matter.
The locus classicus case of A.G. Kano State v A.G. Federation (2007) 3 SC (Pt. 1) 59 is sacrosanct, where His Lordship, Per Mohammed Lawal Garba,JCA highlighted that:
the clear principle laid down in the above authorities is that the original jurisdiction of the apex court under section 232(1) cannot be invoked over a dispute in respect of the acts or performance of the duties of the federal government through or by its agencies, which are legal entities that can sue or be sued, since they are not the Federation or a State in the Federation.” Per MOHAMMED LAWAL GARBA, JCA (Pp 27 – 30 Paras B – D).”
To justify this, let’s examine what necessary party, the federation and agencies of the federal government entail.
- The Central Bank of Nigeria Act No. 7 2007 at section (1) subsection (2) provides that the Central Bank shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
- This speaks volumes in that the CBN could be joined as a legal person with full capacity as a necessary party whose interest would be affected.
- In the recent case Uchechukwu v. Okpalake & Ors.(2010) LPELR-CA/E/EPT/50/2008, Per Sanusi, J. C.A explained the meaning of necessary party inter alia: “A necessary party is defined as one who is not only interested in the subject matter of the proceedings but also who in his or her absence, the proceedings could not be fairly dealt with.” Chief Abusi David Green vs Chief Dr E.T Green (1987) 3 NWLR (Pt. 611) 480 or (2001) 48 WRN 90.
- Not joining a necessary party to a matter would be construed as lack of jurisdiction, because justice would not be manifestly dispensed in the circumstance.
- Accordingly, our laws have not thought of making a non party to be bound by the order of the court. This might be the advent of such.
- Additionally, on consent of appropriate officer or court necessary, if money is held by public officer or the court, by the dint of section 84 of the Sheriffs and Civil Processes Act CAP. S6 LFN 2004, the CBN can stand in as a public officer in a garnishee proceeding. Sso the CBN is an agency of the federal Government of Nigeria.
Furthermore, pertaining the jurisdiction of the supreme court, section 20 of the Supreme Court Act CAP. S15 LFN 2004 provides thus:
Any proceedings before the Supreme Court arising out of a dispute referred to in section 232 (1) of the Constitution and brought by or against the Federation or a State shall—
(a) in the case of the Federation be brought in the name of the Attorney-General of the Federation;
(b) in the case of a State be brought in the name of the Attorney-General of the State
The above provisions which is congruent with section 231 and 232 of the 1999 Constitution
NOTE: It could be argued that the CBN, being an agent of the federal government coupled with the capacity to sue and be sued, it’s actions may be held to be those of the federal government.
Additionally, section (2)(e) of the CBN Act provides that the principal object of the CBN is providing economic and financial advise to the federal government.
Furthermore, the CBN acting generally as the agent for the federal government, state or local government pursuant to section 39 and 40 of the CBN Act, made it an agent within the purview of section 251 of the Constitution and issues arising from the discharge of its functions may be clothed with the toga of disputes between states and federation.
- Determinants of jurisdiction of the Federal High Court.
As earlier submitted, jurisdiction of the court to entertain an action is determined by examining the law conferring jurisdiction on the court at the time the suit is instituted and trial commences. See Osakue v. FCE (Technical) Asaba & 2 Ors (2010) 2-3 SC (pt 111) p. 158, (2010) NWLR (PT. 1201)1; O. H. M. B. V. Garba & 2 Ors. (2002) 14 NWLR (Pt. 788) 538.
An examination of the extant laws will lead to the conclusion that the Federal High Court has jurisdiction. Two aspects which underlies the whole concept of jurisdiction are substantive and procedural jurisdiction.
The lack of substantive jurisdiction renders the proceedings a nullity ab initio while a defect in procedure or procedural jurisdiction, on the other, hand renders the proceedings or the decision voidable at the instance of the aggrieved.
My Lord, per Eko, JCA in R. T. A. G. M. N v. TORT (2006) 4 (PT. 1501) 101 CA opined that: “the lack of substantive jurisdiction appears to be the fulcrum of the decision in Ukwu v. Bunge (1999) 8 NWLR (PT. 518) 527. For the Federal High Court to have jurisdiction under section 251 of the 1999 Constitution, the following must co exist:
- The parties, or a party must be the federal government or its agencies
- Subject matter of the litigation”
Application of the above requirements to this instant analysis invariably implies that jurisdiction is the combination of the parties and subject matter.
The words used in this piece of legislation are plain as day, and have been severally interpreted in lines of authorities. See; N. E. P. A v. Edegbero (2002) 18 NWLR (PT. 798) P. 79; Oloruntoba- Oju v. Abdulraheem & 3 ORS. (2009). 5-6 SC (PT. 11) p. 57; (2009) 13 NWLR (PT. 1157) 83.
It is however not in dispute that the Central Bank of Nigeria is an agency of the federal government. Any lingering doubt has in fact been put to rest by the provisions of section 39 of the CBN ACT, CAP. 47, LFN 1990 which states that the Central Bank may act generally as agent for the federal government or of a State government.
The Federal High Court will have jurisdiction when the subject matter has arisen from administration, management and control of the federal government or any of it’s agencies, and for any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the federal government, or any of it’s agencies. See: section 251(1)(r) of the Constitution of the Federal Republic of Nigeria.
- Does the Supreme Court Have Jurisdiction Over the Matter as Instituted by the Governors of the 3 States?
It is trite that courts in Nigeria are creatures of statutes and likewise, it is the statute that also confers jurisdiction on the courts.
Jurisdiction may be extended not by the courts but by the legislature. See Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) 619; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; ONUORAH V. K. R. P. C Ltd. (2005) 6 NWLR (Pt. 921) 393.
Therefore, the Supreme Court could never invoke jurisdictional competence on itself when the grundnorm is silent on same.
In conclusion, it is submitted that Supreme Court has set a seal on this grey and nagging area of law bothering on jurisdiction, in the case of Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465, where the court held:
The rationale behind this cardinal principle of law is underpinned by the fact that one of the triumvirate ingredients of jurisdiction is that the subject-matter of a case must come within the jurisdiction of the adjudicating Court and there is no feature therein which will prevent it, the Court, from exercising its jurisdiction, see Madukolu vs. Nkemdilim (1991) 2 NSCC 374; Agbiti vs. Nigerian Navy (2011) 4NWLR (Pt.146) 175; SLB Consortium Ltd. v. N.N.P.C. (2011) 9NWLR (Pt. 1252) 317.
In summary, the subject matter of the case as instituted by the 3 governors can only be adjudicated upon by the Federal High Court.
About the Author
Kehinde Emmanuel Oladele is an undergraduate law student at the faculty of law, Ahmadu Bello University, Nigeria. He is an avid reader and a prolific writer, he has published numbers of articles and researched papers on different topics of law nationally and internationally.
He could be reached via : [email protected]