Alhaji Nanner Buka Umoru Mandara V. The Attorney General Of The Federation (1984)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C.

The appellant was tried at the Federal High Court, Lagos, on four counts charging treasonable felony, incitement to mutiny and attempting to cause disaffection amongst members of the armed forces of this country. Specifically, the charges were brought under section 41 (a), 44 (a), 44 (b), and 46 (1) (a).

Some of the above charges attract a punishment of life imprisonment, but having been found guilty at the end of what undoubtedly must have been a very tedious trial, judging by the size of the printed record of proceedings, the appellant was convicted and sentenced to a maximum of 15 years imprisonment on two of the counts and 10 years imprisonment on the other two, the said terms to run concurrently.

He was thus to serve a total of 15 years imprisonment. The conviction was recorded on 30th July, 1982 and the appellant is still in prison custody. All the charges were brought under Part II of the Criminal Code (Cap 42 Laws of the Federation) with the heading:

“OFFENCES AGAINST PUBLIC ORDER”

On conviction, the appellant appealed to the Court of Appeal on a number of grounds. The said grounds were later amended to raise the issue of the jurisdictional incompetence of the Federal High Court to try the charges brought against the appellant.

Before this appeal, the court of Appeal had decided when the jurisdiction of the Federal High Court to try criminal matters other than those within the contemplation of section 7 of the Federal High Court Act (No. 13 of 1973) was contested in Eze v. Federal Republic of Nigeria (1982) 3 N.C.L.R. 259) C.L.R. 259) that that court had jurisdiction. This was also the decision of the Court of Appeal in Senate of National Assembly v. Momoh Suit No. FCA/L/45/81-decided on 19th July, 1982.

On 10th June, 1983 this court delivered judgment in Suit No. SC.110/1982 – Bronik Motors Ltd & Anor v. Wema Bank Ltd. This judgment dealt exhaustively with the jurisdiction of the Federal High Court both under the original Act establishing that court (then designated-The Federal Revenue Court) that is Act No. 13 of 1973 and under the Constitution of the Federal Republic of Nigeria-1979.

In view of the binding effect of the above decision on the Court of Appeal, the appeal of the appellant to that court which was decided on 18th November, 1983 was based exclusively on an interpretation by that court of our decision in BRONIK (supra) and its bearing, if any, on the jurisdiction of the Federal High Court to try the appellant. The Court of Appeal by a split decision of two to one (KAZEEM and NNAEMEKA(J.C.A.) ADEMOLA, J.C.S. DISSENTING, RULED THAT OUR DECISION IN BRONIK (supra) notwithstanding, the Federal High Court was competent to try the appellant and that it derived the power so to do under section 7 (3) of the Federal High Court Act-No. 13 of 1973. The appellant has now appealed to this court on the following two grounds, namely:

(a) The Federal Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to try the appellant.

PARTICULARS OF ERROR

Section 7 (3) of the Federal High Court Act is purely explanatory of section 7 (2) and ought not to have been Construed as enlarging its scope.

(b) The Federal Court of Appeal erred in law in not holding that the appellant has not been tried before a court of competent jurisdiction and the conviction ought to have been quashed.

It is thus clear that this appeal is concerned with the very narrow issue of the correct interpretation of section 7 (3) of the Federal High Court Act No. 13 of 1973. Chief Williams, learned Senior Advocate, who represented the appellant set out in his brief the only issue which calls for a determination as

“What is the true meaning and intent of section 7 (3) of the Federal High Court Act.”

Counsel adopted the formulation of the question for determination as is contained in the judgment of NNAEMEKA-AGU, J.C.A., where the learned Justice said:

“The issue is whether by sub-section (3) the Act confers upon the court, in addition to the jurisdiction conferred by sub-section (2), jurisdiction over provisions in the Criminal Code in relation to offences for which the Attorney-General of the Federation may initiate proceedings or whether sub-section (3) is not designed to confer additional jurisdiction over matters contained in the Criminal Code but merely re-affirms that the Court may try such offences in the Code where they relate to matters over which jurisdiction is conferred by sub-section (2).”

On the submissions on either side, the area of disagreement on the main issue raised in the appeal is very narrow, but crucial. For the appellant, it is contended that sub-section (3) of section 7 of the Federal High Court Act is purely explanatory of sub-section (2) thereof; while the respondent argues that sub-section (3) is a distinct provision standing by itself and extending whatever jurisdiction sub-section (2) confers on the court.

This notion that sub-section (3) should be construed as an extension of, or an addition to the scope of sub-section (2) would appear to be the main prop to the case of Mr. Nwazojie, the learned Director of Public Prosecutions of the Federation. He argued thus in his reply brief:

“It is common ground by both the appellant and the respondent that the Attorney-General of the Federation has power to initiate proceedings for the offences charged under those sections of the Criminal Code of the Federation, Cap 42. It is also agreed that the Criminal Code, Cap 42, is an existing law and a federal enactment with regard to those matters in which the Attorney-General of the Federation may initiate proceedings. The disagreement is only on the court that has jurisdiction to try the offences. Appellant contends that it is the High Court of a State (Lagos State), while the respondent maintains that it is the Federal High Court by virtue of section 7 (3) of the Federal High Court Act, 1973 (No. 13 of 1973, Laws of the Federation). This position is not against the decision of the Supreme Court in BRONIK case (loc. cit) because the Supreme Court decided in that case that the Federal High Court’s jurisdiction is limited to

(a) matters set out in section 7 of the High Court Act 1973;

(b) The concurrent jurisdiction conferred on the Federal High Court

with the State High Court under section 42 of the 1979 Constitution concerning the breach of fundamental rights;

(c) the temporary jurisdiction conferred on the Federal High Court by section 237 of the 1979 Constitution regarding election to the office of President or Vice President, temporary until section 279 of the Constitution has been implemented. It is only on (a) above, matters set out in section 7 of the Federal High Court Act, 1973, that we are concerned with in this appeal.

It is submitted by the respondent that the word “include” as used in the con of sub-section 7 (3) should be construed as having a cumulative or additive effect. Thus, construed in this light, it would appear that some additional jurisdiction is being vested in the Federal High Court in respect of offences in the Criminal Code (Cap 42) in which a prosecution may be launched by the Attorney-General of the Federation.

It seems to be however upon an examination of the authorities that the word include or including need not, as contended for the appellant, have only an additive effect; it may be used in the form of additional emphasis in respect of what has gone before or for the avoidance of doubt. As defined in the shorter Oxford Dictionary “include” may mean-To contain, comprise or embrace – (a) as a member of an aggregate or a constituent part of a whole – (b) as a sub-ordinate element, corollary or secondary feature. (c) To place in a class or category; to embrace in a general survey; or to reckon in a calculation.” See – Commissioners of Customs & Excise v. Savoy Hotel Ltd. 1966 1 W.L.R. 948 AT 954 where SACHS J. stated

” ‘including’ is a word to which parliamentary draftsmen seem considerably addicted: one reason for this may be that in law it can have, according to its con, not only one or other of simple but in essence quite differing effects (for instance, in relation to the words that follow it may be found to have been used simply to enlarge, to limit, to define exhaustively or for the avoidance of doubts to repeat the preceding word or phrase), but it may also be used to secure on one and the same occasion more than one of those effects, thus putting the draftsman, but not necessarily the court, in a happy position.”

Where in the interpretation of a word appearing in a particular piece of legislation such a word is capable of two meanings, the court has a duty to adopt an interpretation, which would not defeat the intention of the lawmaker. In Maxwell on Interpretation of Statutes 12th Edition the learned authors stated thus at page 105

“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”

Again in the same page of the said edition is quoted the following words of Lord Reid in Gartside v. Inland Revenue Commissioners- 1968 A.C. 553 at 612

“It is always proper, to construe an ambiguous word or phrase in the light on the mischief which the provision is obviously designed to prevent, and in the light on the reasonableness of the consequences which Follow from giving it a particular construction”.

I should now like to examine what the likely consequences would be if the interpretation urged by the respondent were to apply. To start with there is only the express mention of the Criminal Code (Cap 42) which applies in Southern Nigeria and not in Northern Nigeria where the Penal Code applies. Can it be seriously argued that anyone committing an offence cognisable under the Criminal Code could be prosecuted therefor by the Attorney-General in the Federal High Court by virtue of sub(3) while such a person would be immune from prosecution were he to commit the same offence in Northern Nigeria Such an anomalous and monstrous situation could not have been contemplated when sub(3) was enacted. As the respondent concedes that the Federal Attorney-General can only prosecute in respect of Federal causes or offences and as Act No. 20 of 1960 (CRIMINAL PROCEDURE NORTHERN REGION) assimilated the practice and procedure under the Penal Code of the Northern States of Nigeria with those of the Southern States in respect of the said Federal causes and offences, the omission of the PENAL CODE cannot fail to impinge on the attention of the legal draftsman. Alternatively, it was argued, and I agree that, the situation set out above might not arise in practice if the Federal High Court had jurisdiction, as ACT No. 20 of 1960 (supra), would confer power on the court to try the appellant under the PENAL CODE.

It seems to me that the approach adopted by the respondent to this appeal as also the majority of the Court of Appeal stems from an attempt to construe sub-sections under section 7 of ACT No. 13 of 1973. Section 7 (1) of ACT No. 13 of 1973 reads as follows:

“The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,

(ii) customs and excise duties,

(iii) banking, foreign exchange, currency or other fiscal measures;

(c) arising from

(i) the operation of the Companies Decree 1968 or any other enactment regulating the operation of companies incorporated under the Companies decree 1968,

(ii) any enactment relating to copyright, patents, designs, trademarks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdicis conferred by sub-section (1) of this section.

(3) The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice to the generality of that sub-section and subject to section 63 (3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The Head of the Federal Military Government may by order published in the Gazette confer jurisdiction on the Federal Revenue Court in respect of such other causes and matters of like nature as those set out in the foregoing sub-sections as he may from time to time at his discretion specify.”

Our decision in the BRONIK case dealt not only with the jurisdiction of the Federal High Court under section 7 of ACT No. 13 of 1973 but also took into account the origin of its jurisdiction under section 230 of the 1979 Constitution and that jurisdiction under section 42 of the said Constitution which it shares with the State High Court. We were at pains to emphasise in our unanimous decision in the BRONIK case that while the Federal High Court is a court of limited jurisdiction, that is limited as spelt out under section 7 of ACT No. 13 of 1973, section 42 and section 230 of the 1979 Constitution, a State High Court on the other hand is a court of unlimited jurisdiction as provided under section 236 of the Constitution. The said section (236) reads:

“( 1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

And by section 250 of the 1979 Constitution, jurisdiction is vested in the State High Court in respect of Federal causes. Federal causes is defined under the section as

“civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws; and ‘Federal offence’ means an offence contrary to the provisions of an Act of the National Assembly or any law having effect as if so enacted”.

We made it clear in the BRONIK case that it is open to the National Assembly under section 230 (b) of the 1979 Constitution to confer such additional jurisdiction as it may deem necessary on the Federal High Court, but this apparently had not been done before the recent change in government.

I find it extremely difficult to understand sub-section (3) of section 7 of Act No. 13 of 1973 without reference to the two preceding sub-sections namely – (1) and (2). Sub-section (2) as earlier indicated, in particular reads

“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.”

7. (1) (c) reads under

(ii) arising from any enactment relating to copyright, pantent designs, trade marks and merchandise marks.

Cap 42 (Criminal Code) sections 491, 492 and 493 contain offences in relation to copyright. Also copyright is item 13 on the Exclusive Legislative List and thus a matter in respect of which only the National Assembly can legislate.

Thus is would seem that in regard to matters relating to copyright the Attorney-General of the Federation would be able to prosecute for offences in the Federal High Court, deriving the authority so to do from sub-section (1), (2) and (3).

The respondent’s counsel having conceded in his brief that the decision in BRONIK is limited to matters set out in section 7 of the Federal High Court Act 1973, by this I understand him as referring to the entirety thereof, cannot justifiably now seek to modify this stand by arguing that sub-section 7 (3) can be the source of extra jurisdiction in that court. It would appear that, though not expressly put, we are being asked to set aside or overrule our decision in the BRONIK case presumably on the doctrine of STARE DECISIS. In this wise, I wish to adopt my stand in the BRONIK case where I stated as follows:

“On the whole, I would need greater persuasion than has been the case here, to shift from the view I hold that a case for overruling JAMMAL has not been made. To do so, as was held in Jones v. Secretary of State(1972) 1 ALL E.R. P145-three pre-requisite conditions must be prayed in aid and satisfied namely:

(a) a broad issue of justice

(b) or policy and

(c) a question of legal principle such that the retention of the decision would amount to a perpetuation of injustice.”

Historically, up to September 1979, and notwithstanding that ACT No. 13 had been in force since 1973, there was no evidence that the Federal Attorney-General had sought to prosecute matters other than those set out under section 7 of ACT No. 13 in the Federal High Court. But after the coming into force of the 1979 Constitution, and presumably relying on the provisions therein contained as regards “SEPARATION OF POWERS”, the Federal Attorney-General set out, albeit through the back door, on a course seeking to establish that all Federal causes or offences should be prosecuted or litigated in Federal courts. This would naturally embrace all matters in respect of which the National Assembly was competent to legislate or those set out in the Exclusive List. Our decision in Bronik completely brought this notion to a halt.

Under section 160 (1) (a) of the Constitution the Attorney General of the Federation shall have power

(a) “to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;

In view of the constitutional arrangement as above and more particularly in reliance on our decision in Bronik, it does not seem to me feasible for the Attorney-General of the Federation, at his election to opt for a Federal Court, where such a court, as the Federal High Court, with which this appeal is concerned, would have not jurisdiction.

There can be no room for a situation of Federal justice and State justice; there can only be justice according to the laws of this land. I would certainly need express legislation such as would enable the Attorney General of the Federation to take all his cases to Federal courts, thus avoiding State courts. This court demonstrated conclusively in BRONIK that such separation of powers as there exists in our 1979 Constitution is neither water-tight nor absolute as I have endeavoured to show earlier on in this judgment. State High Courts try Federal cases in what I would describe as Federal presence. By this I mean that law and order in the State or in the courts in the State is maintained by the Nigeria Police, which is an arm of the Federal-executive arm of government. The decrees and orders of such courts are enforced by the Federal arm of government. It is also the case that crime is investigated and recommended for prosecution by the police in each State. Again, prosecution of criminal cases in the inferior State courts is done by the Nigeria Police. Thus it would seem that the constitutional arrangement in this regard is porous and there is constant interaction between the Federal and State organs of government.

On the whole, I am satisfied that in view BRONIK the Federal High Court had no jurisdiction to try the offences with which the appellant in this case was charged. I hold also that the objection to jurisdiction was properly taken at the time it was.

Nnaka Udenta & Ors. v. Ani Chukwunta & Ors. 1959 3 E.N.L.R. p. 45. This appeal, therefore, succeeds and it is allowed.

Accordingly I hereby declare as null and void the trial as well as the purported conviction of this appellant, as the Federal High Court which tried him had no jurisdiction so to do.

On the question of what consequential order to make, I would refrain from doing so, save only to set out the bare facts. The appellant was convicted on 30th July, 1982 and sentenced to 15 years imprisonment. He had sought to overthrow the erstwhile government of President Shehu Shagari, but failed. He has been in custody for 1 year 8 months. It was not his fault that he was tried in the wrong court. These are the facts. It seems to me that, having held that the Federal High Court had no jurisdiction to try this appellant, and that the entire proceedings were a nullity, there can be nothing to which a retrial order could be tied. The decision to prosecure or not to prosecute can be either a political or policy decision which only the Attorney-General of the Federation can take under section 160 of the Constitution of 1979.

Accordingly, I order that the appellant be discharged forthwith from prison custody.

SOWEMIMO, C.J.N. My brother, Ayo Irekefe has given a resume and detailed facts of this case.

The jurisdiction and law of the Federal Revenue Court is set out in sections 7 and 8 of the Federal Revenue Court Act No 13 of 1973. Consequent upon the Constituent Assembly’s recommendations, the name of the court was changed to Federal High Court, but the jurisdiction of the court remains the same. We have had to deal in this Court with sub section 1 of section 7 of the Act and there it was held that the jurisdiction of the Federal High Court is restricted unlike the State High Court which has unlimited jurisdiction. That has put an end to the problem of which court has jurisdiction to deal with a particular matter. Our main concern in this appeal is sub-section 3 of section 7. The appellant in this case is charged as follows:

(1) Did solicit, incite, endeavour to persuade and to procure army officers to take part unconstitutionally in the removal of the President of the Federal Republic of Nigeria as Head of State and Commander-in-Chief of the Armed Forces of the Federation.

(2) Gave four tickets of the Nigeria Airways Ltd. to an army officer in names and some routes so that he could recruit soldiers in other military locations in Nigeria in furtherance of the intention referred to in overt act (1) above.

My brother Ayo Irikefe has dealt succinctly with the various aspects of this matter. It must however be stated that the criminal jurisdiction under section 3 reads as follows:

“The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice to the generality of that sub-section and subject to section 63 (3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.”

As the former name of the court is restricted, the Federal Revenue Court although changed to Federal High Court, its jurisdiction as set out in sub-section 1 of section 7 has never been altered. All criminal matters which that court has jurisdiction to deal with under sub-section 3 must be within the competence of S.7 (1). The suggestion that the criminal jurisdiction of that court is unlimited is fallacious and not supported by the law. To that extent this case should have been tried in the particular High Court of the State where the offence was committed. There is not the slightest doubt that the Federal High Court has no jurisdiction in hearing the matter and the Federal Court of Appeal, now known as the Court of Appeal, has no jurisdiction to entertain the appeal.

It is surprising that in this straightforward case the Attorney-General of the Federation took this matter to the Federal High Court for purposes not in conformity with the law. sub-section 3 has been drafted but not clearly expressive as one would have hoped it should be in view of the provisions of section 7 sub-section 1 of that Decree which is the governing jurisdiction of the Federal High Court formerly “Federal Revenue Court” Otherwise all criminal matters not dealing with revenue will find their way to the Federal High Court without any jurisdiction whatsoever. It is the duty of our courts to observe the different jurisdictions which are conferred on those courts. It is our hope that the Federal High Court will continue to deal with revenue cases, except, of course, the election petition the case of presidential and vice-presidential elections.

My conclusions therefore is that the judgment of the Federal High Court must be set aside as lacking in jurisdiction, and the judgment of the Court of Appeal which supports the judgment of the Federal High Court must be set aside. In the circumstances, the judgment of this Court, having set aside the judgment of the Federal High Court as lacking in jurisdiction, allows this appeal. AND this shall be the judgment of this Court.

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Other Citation: (1984) LCN/2236(SC)