By Mike Ozekhome

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 adjucates on disputes among the citizens; between citizens and governments; and between the governments 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 discuses 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 cognizance of matters presented before a court in a formal way, for the purpose of adjudication. SPDC Nig. Ltd Vs Isiah (2001) 11 NWLR Pt. 723, Pg 168 @ 179; Mobil Producing Nig Unltd v. LASEPA (2003) FWLR Pt. 137, pg 1029 @ 1052).

The Apex Court graphically illustrated this position in ATTORNEY GENERAL OF ANAMBRA STATE vs. ATTORNEY GENERAL OF THE FEDERATION (2007) All FWLR Pt. 379 pg. 1218 @ 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 vs. 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), illuminated 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 SUPREMESOURCE

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 vs. 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 vs. 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 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 fifteen (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.

APPOINTMENT OF JUSTICES OF THE SUPREME COURT-HOW MADE

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 practise 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 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) p. 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 Court of Appeal in 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 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 fulfillment of any condition precedent to the exercise of jurisdiction. These preconditions for a Court to be seized of jurisdiction are conjunctive and the non-fulfillment 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 @ 417. For a Court of law to have jurisdiction to hear and determine any suit, three (3) basic requirements must be met or satisfied as enunciated in the case of Madukolu v. Nkemdilim (1962) 2 All NLR P.581, which are thus: (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 fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis supplied).

To further appreciate this discourse, it is quite pertinent to examine these factors.

To be continued...

THOUGHT FOR THE WEEK

“Could we forbear dispute, and practise love, we should agree as angels do above”. (Edmund Waller).

By Mike Ozekhome

INTRODUCTION

In the past 7 weeks we have been on this treatise. Last week, we discussed our past experiments with constitutional democracy, contrasting our colomiatera Constitutions with those of the period since independence. We then suggested two options for the way forward: a sovereign national conference and a brand-new Constitution and concluded it with a comparative review of some foreign countries, such as Iraq, Kenya and South Africa.

In today’s episode, we shall continue the dissection of the foreign dimension by considering the experiences of Iraq, Bangladesh, Morocco, Egypt, Eritrea and Tunisia, before rounding off with the American example of people’s Constitution. Please enjoy the last part of our treatise.

A NEW CONSTITUTION: HISTORICAL PERSPECTIVES (continues)

IRAN

THE DECEMBER 1979 IRANIAN CONSTITUTIONAL REFERENDUM
A proposed new Constitution which would make Iran an Islamic Republic, introduce direct elections for the presidency, create a unicameral parliament and require any constitutional changes to go a referendum was proposed by the Iranian Government. To bring this about, a constitutional referendum was held in Iran on 2ndand 3rd December, 1979. The new Islamic constitution was approved by 99.5% of voters at the Referendum.

BANGLADESH

THE 1991 BANGLADESHI CONSTITUTIONAL REFERENDUM
A constitutional referendum was held in Bangladesh on 15th September, 1991. Voters were asked “Should or not the President assent to the Constitution (Twelfth Amendment) Bill, 1991 of the People’s Republic of Bangladesh?” The amendments altered the existing Constitution and reintroduced of Parliamentary system of government. It also abolished the position of Vice-President and provided that the President be elected by Parliament. 83.6% of Bangladeshis voted in the referendum, with a turnout of 35.2%.

MOROCCO

THE 2011 MOROCCAN CONSTITUTIONAL REFERENDUM
A referendum on constitutional reforms was held in Morocco on 1st July, 2011. It was called in response to a series of protests that spread across Morocco which had begun on 20th February, 2011, when over ten thousand Moroccans took to the streets in massive demonstrations demanding democratic reforms. A Commission was set up to draft proposals by June, 2011. A draft was released on 17th June, 2011, which brought about fundamental changes upon people’s referendum.

EGYPT

EGYPT’S NEW CONSTITUTION AND REFERENDUM

In October, 2012, the Egyptian Constituent Assembly announced that its first draft of a new Constitution and launched a public awareness campaign called “Know your Constitution”, to educate the public. On November 29, 2012, the Egyptian Constituent Assembly of finalized the drafting process of a new Egyptian Constitution. One week later, on December 8, 2012, Egyptian President Mohamed Morsi issued a new constitutional declaration announcing that the constitutional draft would be voted on in a national referendum.

In accordance with article 60 of the Transitional Constitutional Declaration of March 2011, a special Judicial Commission was formed to supervise the referendum process and monitor vote counting. The referendum took place in two rounds on two different dates: December 15 and 22, 2012. The majority of Egyptians thus voted in favour of the newly drafted Constitution in a popular National Referendum, a Constitution that brought about profound reforms.

ERITREA

CONSTITUTION MAKING IN ERITREA
The Eritrea’s Proclamation 55/1994 established a Constitutional Commission which organized popular participation in the process of a new Constitution.
The Commission members and more than four hundred specially trained teachers instructed the public on constitutional issues and related political and social questions using local vernaculars. The process took three years to solicit the views of a broad cross section of Eritreans. The participation of a majority of Eritreans gave the people a “sense of ownership of the Constitution.”

TUNISIA

CONSTITUTION OF TUNISIA
Tunisia’s first modern Constitution was the fundamental pact of 1857. This was followed by the Constitution of 1861, which was replaced in 1956, after the departure of French administrators in 1956. It was adopted on 1st June, 1959 and amended in 1999 and 2002, after the Tunisian Constitutional Referendum of 2002. Following the revolution and months of protests, a Constituent Assembly drafted a new Constitution in 2014, adopted on 26th January, 2014 after a referendum.

THE AMERICAN EXAMPLE OF A PEOPLE’S CONSTITUTION
As a great contrast to the 1999 Nigerian experience, when America became independent from Britain in 1776, it held a Constitutional Convention under the leadership of George Washington, between May 14 and September 17, 1776, in Philadelphia, Pennsylvania. 55 delegates represented the autonomous Confederates, with a view to creating a “more perfect union”. Broad outlines of a new union were proposed and hotly debated. This was how the American people achieved a federal system of Government, separation of powers among three branches of Government (Legislative, Executive and Judicial); bicameral, legislature; an Executive presidency; and Judicial Review. The Constitutional draft was signed by 39 of the 55 delegates on September 17, 1787; and thereafter released to the States and the American people to debate and ratify. It was this people’s Constitution that threw up great founders, such as George Washington (first president); Alexander Hamilton, James Madison and John Jay (the Federalists), Thomas Jefferson, etc.

The 1999 Constitutions lacks these. It is not autochthonous or indigenous Being imposed, it worsened the unitary nature of government, and concentrated enormous powers at the centre. While the 1979 Constitution had 67 items on the exclusive legislative list, and 12 items on the concurrent list, the 1999 Constitution increase this to 68 on the exclusive list, but retained only 12 items on the concurrent list. This indicates an unacceptable unbearably strong centre and very weak federating units.

OUR CONCLUSION
The unity, development and peaceful co-existence of Nigeria as a country are currently imperial. Our diversities in area of culture language, tribe, and religion, must be seen by all as a Dolly Parton’s Coat of Many Colours, blessing and not a curse, because variety they say, is the spice of life. Concerted effort must be put in place by formulation of policies and reforms that would help promote national integration and peaceful co-existence. However, one of the strategies that must be pursued to ensure a far-reaching national integration and peaceful co-existence are to create a meeting point that would ensure and enhance integration between one ethnic nationality or tribe and another. One of the ways by which this noble idea can be
achieved is by putting up a strong advocacy and support for intertribal and interreligious marriage.

Philosophers, many say, have understood the world, but the problem is to change it. Albert Einsten’s dictum is apposite here: “we cannot solve our problems with the same thinking we used when we created them” Hippocrates the father of medicine once told us that desperate diseases requires desperate remedies. An economy based on oil and other depleting natural resources is fast becoming obsolete. The global economy is already in the 4th Industrial Revolution or digital age, dominated by Robotics, Artificial intelligence, Machine learning, Virtual reality, Augmented Reality and others. At the moment, Nigeria is largely bypassed and still grappling with the most basic aspects of the old economy. But given its geographic- demographic conundrum, Nigeria has to leapfrog the industrialization value chain or stagnate. Yet its institutions are those woven around the distribution and consumption of oil rents and the old economy. A system designed for consumption cannot be expected to become efficient for competition and production in the 21st century. Sadly, many people miss this point. As Professor Claude Ake once put it, Nigeria operates a disarticulate economy, where we produce what we don’t consume and consume what we don’t produce.

For a change since the military incursion into our body politics, let us sit down and craft a new Constitution that not only provides for a stable, equitable and just polity but even more so focuses on the incentive structure to usher a competitive and productive economy of the future.
Reforms at the meta-level would entail either embracing our discarded Prime Minister system of government or dismantling and re-coupling several of the institutions that help or hinder us, including a serious re-examination of the 36 state structure as federating units vis-à-vis their fiscal/economic viability or their consolidation into six or more regions with economies of scale and higher investment rates; multiple vice-presidency representing respective regions other than the region of the president, each with supervising powers over certain ministries to ensure equitable representation at the federal cabinet (the Central Bank has four Deputy Governors for instance); principle of equality of regions; multivariate judicial systems with state/regional appellate courts up to regional supreme courts while the federal supreme court becomes the constitutional court— and this is to decongest the centralized system and guarantee speedy dispensation of justice; introduction of commercial courts for speedy resolution of commercial disputes; institution of merit and equal opportunity principle; etc. This will carry the majority along.

Devolution of functions between the central and federating states/regions should be guided by the principle of subsidiary. According to the European Charter, subsidiary means that: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of the responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.”

This principle is not observed in the 1999 Constitution. For a Constitution that proclaims a federal structure, the exclusive and concurrent lists constitute an atypical concentration of powers at the centre. Currently, the federal government is burdened with hundreds of parastatals and agencies trying to inefficiently micro manage the entire Nigeria, with the recurrent expenditure of the federal government exceeding total federal revenue. Every penny of capital spending by the Federal Government of Nigeria (FGN) is borrowed, and its fiscal position is precarious. Put starkly, not one kobo of oil money is invested in infrastructure by the FGN: it is all consumed by the obtuse federal bureaucracy. The federal government should loosen its hold on policing, electricity (power), railways, ports, aviation, business incorporation, taxation powers, regulatory functions, etc. This will generate the economy.

The greatest challenge is how to get some of the elite whose privileges are provided by the existing system to support its dismantling into a system that is potentially beneficial to ‘society’ but perhaps disproportionately harmful to their interests in the short term. In other words, we are faced with the same kind of conundrum as some western countries with their welfare system. Having designed and implemented it for generations, it has grown into an unsustainable octopus of inefficiency but reforming it is not easy. In the US, millions of voters are hooked to the feeding bottle and its government keeps postponing the day of reckoning by borrowing to keep the system alive (the US, with the global reserve currency can afford to borrow for a while from the rest of the world but Nigeria cannot). Everywhere, such a distributional system has acquired a huge and powerful constituency, and the political cost of dismantling and re-coupling is not trivial. There is also an intergenerational issue involved. The present beneficiaries don’t care if the same benefits do not extend to the future generations: they just want to have their share and go, and let the future generations take care of themselves. Nigeria cannot continue to share the national cake without caring how it is baked.

The end

By Kayode Emola

Five years ago, a revival of the call for Yoruba independence started. People began to clamour for the formation of a Yoruba nation outside of Nigeria. Meanwhile, many folks who either did not believe at all, or were only half-hearted about the idea of complete independence, nonetheless still advocated for a devolved Yoruba nation within Nigeria. Ultimately, whichever camp one falls into, we all agree that the present-day Nigeria does not serve the majority of its people and therefore requires a major overhaul.

We must seriously consider our approach to this task, as we do not want to end up like the Israelites, wandering in the wilderness for 40 years even though God had told them to go and possess the Cannan land. We must avoid the pitfalls that can set us back, and be open to embracing new ideas in pursuit of our aim. Most importantly, we must remove from among ourselves this mentality of “I have to be at the centre of affairs before major decisions can take place.”

I believe Nigeria is not capable of stopping us if we decide to pull out of this unhealthy union that has plunged the majority of our people into poverty. However, our campaign is hampered by a lackadaisical attitude which I believe is born out of fear. Until we overcome this fear, we may never take the plunge that will either make or break this campaign.

In 2022, heightened levels of activity could have led to the birth of the new nation; however, the selfish ambitions of a minority held us back, trapping us in the situation we are today. It still baffles me that over 5,000,000 Yoruba people can sign a petition to leave Nigeria, yet we struggle to even get 100 people to attend meetings where serious strategizing on how we can achieve our independent nation can take place.

In fact, I doubt if there are even 100,000 people across the entire world who are ready to commit their time, energy and resources to achieve this noble cause. It feels like the majority want to sit back whilst someone else puts in the work to realise Yoruba independence, and merely reap the fruits of another’s labours once it is completed. This was exactly what happened with the Israelites: less than 20% believed they could vanquish the Canaanites, and so this prophecy self-fulfilled, prolonging their time in the wilderness.

Why do numbers of supporters’ matter? Because it sends a strong signal to the authorities that we are determined to exercise our inalienable right to self-determination. That being said, we don’t need the entire Yoruba people to subscribe to the idea before we begin to make impact. The Israelites were held back as a result of listening to the voices of the majority. I believe we should listen to the voice of the progressive few who truly know what they are doing and be guided by them at all times.

Consider Iceland, a country of less than four hundred thousand people and little or no natural resources, and yet it is one of the wealthiest nations on earth. This country relies mostly on imports for their everyday goods, although they do also export seafood and aluminium products.

If this small country of Iceland can build a system that works for their people, then I propose that we the Yoruba people who believe in independent Yoruba nation outside Nigeria must begin our own system of governing ourselves. Quite a few people have been mooting the idea of Customary Law government which is recognised by the United Nation and currently being practiced in Northern Nigeria for over 100 years.

If northern Nigeria is permitted to practice their customary law government giving them the powers to create their religious (Hisbah) police, then I believe we the southerners must take our destiny seriously. It is now time to take roll call of those who truly believe in the Yoruba nation struggle and are willing to pursue it with all that they have and not just mere say.

We must target at least a million people who are devoted to the struggle and are willing to help set up the customary law government, giving it the legitimacy it requires. After all, the current British Prime Minister and his immediate predecessor were not voted by the country. They were elected by a handful of people who are their political party faithful. The people who voted the British Prime Minster were less than two hundred party members who subscribed to be a party member.

If we can be able to set up a system whereby people can subscribe even with a little monthly token, as little as a dollar, then a million people would bring a million dollar to the cause. With this revenue, those tasked with representing our people can begin the developmental programmes that will propel us into becoming a formidable force to be reckon with.

I know some people may see this idea as foolish. But if we have over 70 million Yoruba people, even if over half of them live below the poverty line, then we should not struggle to find 1 million people to kickstart our new nation. For if we cannot find 1 million people, or even half of that number, then maybe we should just bury the idea of Yoruba independence and simply embrace being slaves in Nigeria forever.