The Oracle: Disputes Between States and the Federation: Examining the Jurisdiction of the Supreme Court (Pt. 3)

By Mike Ozekhome

INTRODUCTION

In our last discourse on this series, we delved deeper into the constitution of the apex court (Supreme Court) with regards to its membership and how it affects its jurisdiction. We also x-rayed how the subject matter of a case determines a court’s jurisdiction and the conditions precedent to assumption of jurisdiction by a court. Today, we shall continue and conclude on the apex court’s power of jurisdiction and thereafter take a look at the definition of a federation; The Federation” Vs “Federal Government of Nigeria”: The Link and the Principles for the Invocation of the Jurisdiction of the Supreme Court. Please read on.

“Dispute” For The Purpose Of Invoking the Original Jurisdiction of the Supreme Court (Continues)

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 737 the word ‘dispute’ was defined by my Lord S.M.A. Belgore, J.S.C., 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.

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 thus: “With respect to the construction given to the word “dispute”, the opinion of the Court (Per Belgore, J.S.C. as he then was) is quite apposite in determining the issue of this Court’s jurisdiction in this case. On page 701 he said of “dispute” thus: ‘…A dispute is a dispute whether apparent or lingering. It is remarkable that in the counter-claims to the suit some States have admitted there is a dispute. This Court in Attorney- General of Bendel State V. Attorney-General of The Federation; (1981) 10 S.C. 1; (1982) 3 N.C.L.R. 1 Attorney-General of The Federation V. Attorney-General of Imo State, (1983) 4 N.C.L.R. 178 set out clearly what is a dispute to the extent of using authoritative English dictionary. To my mind, a dispute involves acts of arguments, controversy, debate, and 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.’”

The same Belgore, J.S.C. (as he then was) had earlier in A.G, OF THE FEDERATION v. A.G OF ABIA STATE, & 35 ORS (2001) 11 N.W.L.R. (PL. 725) 689 at 737, held, inter alia, that the term dispute as used in section 232(1) of the 1999 Constitution “…Involves acts of arguments, 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.”

In his view, C.J.N. (rtd.) in the case of ATTORNEY-GENERAL OF THE FEDERATION V. ATTORNEY-GENERAL OF ABIA STATE & 35 Ors Ibid, at pp 728-729, adumbrated as follows:
“What constitutes a dispute under Section 212 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979, which has exactly the same provisions as Section 232 subsection (1) in question had been considered by this Court in the cases of ATTORNEY-GENERAL OF BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION & 22 ORS, (1982) 3 N.C.L.R. 1, and A.G OF THE FEDERATION V. A.-G OF IMO STATE & 2 ORS. (1983) 1 S.C.N.L.R. 239; (1983) 4 N.C.L.R. 178. In ATTORNEY-GENERAL OF BENDEL STATE’S case, Bello, J.S.C., (as he then was), stated as follows on pp. 48 to 49 thereof:- “To invoke the original jurisdiction of this Court there must be a dispute as so qualified between the Federation and a State or between States. The issue of jurisdiction was contested on three grounds Firstly, there is no dispute which affected the interest of the Federation and Bendel State between the plaintiff (Bendel State) and the Federation, Secondly, I think the first point may be easily disposed of from the definition of the word “dispute, The Oxford Universal Dictionary defines it as ‘the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion… I also held as follows on p. 320 thereof. It is a well-established principle of the interpretation of the Constitution that the words of a Constitution are not to be read with stultifying narrowness- UNITED STATES V. CLASSIC, 313 U.S. 299, and NAFIA RABIU V KANO STATE (1980) 8-11 S.C. 130 at pp. 148-149. The word ‘dispute in section 212(1) should therefore be given such meaning that will effectuate rather than defeat the purpose of that section on the Constitution. Webster’s New Twentieth Century Dictionary, 2nd Edition, provides that “dispute is synonymous with controversy, quarrel, argument, disagreement and contention.”

Disputes Between States And The Federation: The Legal Position
Section 232 (1) of the Constitution confers exclusive jurisdiction on the Supreme Court to adjudicate disputes between States and the Federation. In order to appreciate this provision, it is expedient to examine what a Federation means.

“Federation”- Meaning

In A.G LAGOS STATE v. AG FEDERATION & ORS, 2014) LPELR-22701(SC), at pp 129-130, Pars A-A. Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC on the definition of “Federation”, held thus:
“Section 318 (1) of the 1999 Constitution (as amended) defines “Federation” as follows: “Federation means the Federal Republic of Nigeria.” In A.G. Kano State vs A.G. Federation, Ibid this Court per Mahmud Mohammed, JSC, relying on the definition of “Federation” within the meaning of Section 232 of the 1999 Constitution, which bears the same meaning in Section 212 of the 1979 Constitution, differentiated between Federation (or the Federal Republic of Nigeria) and the Federal Government thus: Section 212 of the 1979 Constitution under which the word “Federation” was defined is in pari materia with the provisions of Section 232 of the 1999 Constitution now under consideration. I therefore respectfully adopt the definition of the word “Federation” in Section 232 of the 1999 Constitution as bearing the same meaning as the ‘Federal Republic of Nigeria.’ By this meaning…all the complaints of the plaintiff in its statement of claim in the present case must be viewed as being against the Federal Republic of Nigeria in order to bring the case within the purview of Section 232 of the Constitution. In other words, any complaint against the Government of the Federation or any person who exercises power or authority on its behalf like the Inspector General of Police as asserted by the learned senior counsel for the plaintiff in his address before this Court, is completely outside the original jurisdiction of this Court.”

“The Federation” Vs “Federal Government of Nigeria”: The Link

For a better understanding of the meaning of the word “Federation”, the Supreme Court, per EMMANUEL AKOMAYE AGIM, JSC, only recently emphasized the distinction between the “Federal Government of Nigeria” and the “Federation” in A.G OF KADUNA STATE & ORS v. A.G OF THE FEDERATION & ORS (2023) LPELR-59936(SC); at Pp 22 – 24 Paras F – C., thus:
“So much heavy weather is made about the distinction between the Federation and the Government of Nigeria that exercises its executive powers. That distinction no doubt has a constitutional basis. But since the Government of the Federation exercises the executive powers of the Federation, there is, legally and practically speaking, hardly a dividing line between the acts of the Government of the Federation and the acts of the Federation. The distinction does not exist to the extent of turning the Government of the Federation into a sovereign that can act without regard to the Federation. The Government of the Federation is not sovereign. It is a creation of the Constitution for the purpose of exercising the executive powers of the Federation. The Federation is inherently the sovereign and its sovereignty is further established by S.2(1) and (2) of the 1999 Constitution which provides that- (1) Nigeria shall be one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria. (2) Nigeria shall be a Federation consisting of States and the Federal Capital Territory, Abuja. The sovereignty enjoyed by the Federation is owned by several individual persons constituting the people of the Federation of Nigeria who own the lands that together form the territory of Nigeria. S. 14(2) of the 1999 Constitution acknowledges this ownership by declaring that- (a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority. (b) The security and welfare of the people shall be the primary purpose of the government, and (c) The participation by the people in their government shall be ensured in accordance with the provisions of this constitution.”

The implication of the above decisions is that, for the Supreme Court to assume jurisdiction, it must be a dispute between the Federation and a State or between States.

Principles For The Invocation Of The Jurisdiction Of The Supreme Court
Many actions between states and the Federation have failed as a result of the failure to appreciate the thin line that grounds the jurisdiction of the Supreme Court. The Supreme Court laid this confusion to rest in the case of ATTORNEY-GENERAL OF ANAMBRA STATE v. ATTORNEY-GENERAL OF THE FEDERATION, (2007) LPELR-24343(SC) where, per, WALTER SAMUEL NKANU ONNOGHEN, JSC, held at pages 95 – 97, Paras F – C), that:
“The Constitution is very clear on when the Supreme Court will invoke its original jurisdiction on a matter. Section 232 of the 1999 Constitution provides: “232(1) 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. (To be continued).

Thought For The Week

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