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Amos O. Aro V. Salami Fabolude (1983) LLJR-SC

Amos O. Aro V. Salami Fabolude (1983)

LawGlobal-Hub Lead Judgment Report

NNAMANI  J.S.C. 

In this Suit which commenced in the High Court of Lagos State as Suit No. LD/404/80, the plaintiff (i.e. respondent herein) brought a claim against the defendants (appellants herein) in the following terms:

“1. Specific performance of an agreement between the parties and evidenced in letters dated 10th January 1976, 28th January, 1976, and 2nd February, 1976, whereby the defendants promised to execute legal mortgage of the defendants’ properties lying and situate at (a) Herbert Macaulay Street, Yaba, Lagos (b) Adekunle Fajuyi Street, Ibadan (c) Ijebu-Bye Pass, Oke Ado, Ibadan (d) 21 Barracks Road, Calabar and (e) Mile 3 Abe/Port Harcourt Road, Aba; in favour of the plaintiff to secure various overdrafts amounting to over N2,000,000 made, to the defendants in Lagos between 1976 and 1978.

  1. The sum of N2,135,092.57k (Two Million One Hundred and Thirty Five Thousand Ninety Two Naira and Fifty Seven Kobo) being balance due to the plaintiff for overdrafts granted by the plaintiff to the first defendant at the plaintiff’s Mushin and Ebute Metta Branches, in the normal course of their business as bankers to first defendant at their request and for bank charges, incidental expenses upon money due from the defendants to the plaintiffs which money the defendants have refused and/or neglected to pay in spite of repeated demands. Plaintiff also claims interest on the said sum of N2, 135,092.57k at the rate of 8% per annum from 1st October, 1979, until final liquidation of the whole debt or part thereof.”

Pleadings were ordered and were duly filed and exchanged by the parties. After a protracted trial in which 28 exhibits were tendered and received in evidence, Onalaja, J. in a detailed and painstaking judgment delivered on 24th April, 1981, found in favour of the plaintiff bank. His judgment was in the following terms:

“(a) An order of specific performance against the defendants to execute legal mortgage of their properties situate, lying, designated, described as (i) 400 Herbert Macaulay Street, Yaba, Lagos and (ii) 21 Barracks Road, Calabar in favour of the plaintiff. (b) The total sum of N2, 135,092.57k plus interest at the rate of 8% before this judgment and 4% thereafter this judgment until final liquidation of the judgment debt.

(c) The sum of N500,000 against the second defendant as a guarantor of the first defendant with interest at the rate of 8% per annum before judgment and 4% thereafter.”

The appellants herein being dissatisfied with that judgment appealed to the Federal Court of Appeal (hereinafter referred to as the Court of Appeal). I may just in passing mention that in the course of the proceedings before that court a third party intervened in relation to the ownership of 400 Herbert Macaulay Street, Yaba, one of the properties in respect of which the learned trial judge had granted an order of specific performance. It may also be pertinent to mention, particularly as it is one of the grounds on which the appellants have complained to this Court, that the Court of Appeal allowed the respondent to amend paragraphs 3, 4, 6, 7, 8 and 9 of the statement of claim by substituting the words “Bronik Motors Incorporated” for the words “the first defendant”. It also allowed additional words to paragraph 39 of the statement of claim to indicate that the sum claimed included payment made in respect of letters of credit it opened at the request of the first appellant. The Court of Appeal exercised this power pursuant to Order 1 rule 20 of the Rules of that Court and section 18 of the Federal Court of Appeal Act, 1976. The amendments, the court ruled in its judgment dated 6th July, 1982

(Ademola, Nnaemeka-Agu and Mohammed, JJ.C.A.). were to prevent any substantial injustice. They did not, it further said, introduce any new matters but rather made “evidence already given and exhibits tendered more intelligible to follow and understand”. In the said judgment, the Court of Appeal dismissed the appellants’ appeal and confirmed the judgment of the High Court in part. The order for specific performance made by the High Court in respect of 400 Herbert Macaulay Street, Yaba, and 21 Barracks Road, Calabar was set aside as null and void. It is against this judgment that the appellants have appealed to this Court.

By leave of this Court, an amended notice of appeal containing 13 grounds of appeal was filed by the appellants. As this appeal will turn on the proper interpretation of section 7 of the Federal Revenue Court Act 1973 (No. 13 of 1973) and section 230 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) on which learned counsel for both parties addressed us extensively, I do not propose to set down all the grounds. In ground 13 the appellants complained that:

“The Federal Court of Appeal and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the Federal High Court and not in the High Court of Lagos State.

Particulars of Error

(a) Section 230 (1) of the Constitution of the Federal Republic of Nigeria confers jurisdiction in respect of all matters in the Exlusive Legislative List in the Federal High Court.

(b) In the alternative, section 7 of the Federal High Court Act (sic) confers jurisdiction in respect of “civil causes and matters … connected with or pertaining to . . . banking” in the Federal High Court.

(c) Section 8 (1) of the said Act prohibits the High Court or any other court of a State from exercising jurisdiction.

(d) More than three months having expired since final addresses, the Federal Court of Appeal had no jurisdiction to pronounce any judgment. ”

It is necessary to point out at this stage that the issue of jurisdiction was never taken before the High Court and the Court of Appeal. There really can be no objection to this since it is well settled that jurisdiction can be raised at any stage of the proceedings. See, Nnaka Udenta & Ors v. Ani Chukwunta & Ors (1959) 111 E.N.L.R. 45. Besides, I agree with Chief Williams, S.A.N., learned counsel to the appellants, that the point being taken in this Court could not have been taken in the two lower Courts since they were bound by the decision of this Court in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. (Part 11) 208 discussed in more detail infra in this judgment. Having regard to the importance which a proper interpretation of section 230 of the 1979 Constitution has assumed, it is just as well that this point was raised now.

The appellants argued this appeal in the alternative and it may be more convenient to follow that pattern in this judgment. Chief Williams, S.A.N., for the appellants, first argued on the proper interpretation of section 7(1) (b)(iii) of the Federal Revenue Court Act 1973. This provision has been construed by this Court in Jammal Steel Structures Limited v. African Continental Bank (Supra) and a majority of this Court held that the banking transaction which was in issue in that case fell within the jurisdiction of the State High Court and not the Federal Revenue Court (as it then was). Put in a nutshell, for I propose later to advert to the full arguments of counsel on this point, Chief Williams contended that that decision was wrong and urged this Court to overrule it. He contended that all matters pertaining to banking including the banker/customer relationship, which was in issue in this suit, fell within the jurisdiction of the Federal High Court and not the State High Court, which actually disposed of the case. His later argument on section 230 of the 1979 Constitution was therefore in the alternative for if his arguments on section 7(1 )(b )(iii) of the Federal Revenue Court Act, 1973 were accepted that would be sufficient to dispose of the appeal in appellants’ favour.

I propose now to return to Jammal’s case and section 7(1) (b)(iii) of the Federal Revenue Court Act, 1973. In that suit, the claim was not unlike that in the present suit. It was a claim for “N641, 328.39k from the defendants/appellants being the balance due to the plaintiffs for an overdraft granted by the plaintiffs to the defendants at their Idumota branch, Lagos, in the normal course of their business as bankers to the defendants and for money paid by the plaintiffs to the defendants as bankers at the latter’s request, which said sum the defendants have refused and/or neglected to pay in spite of repeated demands”. The learned trial judge before whom the matter was first taken having ruled that his court had jurisdiction an appeal was lodged to this Court. Section 7 of the Federal Revenue Court Act, 1973, provides as follows:

“7. (1) 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 copy-right, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.”

In construing section 7(1)(b)(iii) of Act No. 13 of 1973 the majority of the Court-Elias, C.J.N. and Ibekwe J.S.C., (Fatai-Williams, J.S.C., as he then was, dissenting) came to the following conclusions:

(a) That the ejusdem generis rule supplies to the interpretation of that section such that the word “measures” must be taken to qualify each of the preceding specifically enumerated subjects including banking. This would mean that the ordinary meaning to be given to the sub-section is that it should read, banking measures, foreign exchange measures, currency measures and other fiscal measures.

(b) That the words “or” and “other” in that sub-section are not disjunctive within the meaning of section 13(3) of the Interpretation Act 1964 but by virtue of section 1 (4) of the same Act imply similarity as between the preceding specifically enumerated subjects-banking, foreign exchange and currency and the generic words “other fiscal measures”.

(c) That if the words other measures are construed ejusdem generis with banking, foreign exchange etc., banking measures would cover such pieces of legislation, orders and regulations of the Federal Government as relate to banking-e.g. the Banking Decree 1969, Central Bank of Nigeria Act (Cap 30 of 1958 edition) and ancillary enactments.

(d) That where there is involved only a dispute between a bank and one or more of its customers in the ordinary course of banking business or transaction as in the case with the subject matter of the present case (as is also the case with the present appeal) any State High Court is competent to entertain the case because the Government is not really interested in the outcome of the dispute.

(e) That the true object and purpose of the Federal Revenue Court Decree as can be gathered from the four corners of it is the more, expeditious despatch of revenue cases particularly those relating to personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like which State High Courts were supposed to have been too tardy to dispose of.

(f) That it does not seem that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker/customer relationship such as disputes in respect of overdraft . . . all banking transactions having nothing to do with Federal concern.

In attacking these conclusions, Chief Williams submitted that section 7 of Act No. 13 of 1973 appeared plain and clear. He thought that the construction put on it by the majority leads to uncertainty. He contended that he had never been able to understand what is meant by fiscal measures. He further submitted that the ejusdem generis rule results in narrowing down general words so that they do not go beyond the scope of the specifically enumerated words, which would suit them. If the ejusdem generis rule applies, it will merely operate to limit the scope of the phrase “other fiscal measures”. It will not affect the meaning or scope of the specifically enumerate words such as banking. He argued that “other fiscal measures” must be construed ejusdem generis with banking, foreign exchange, and currency. He contended that what the majority had done was to apply the ejusdem generis rule in reverse (which he thought was never done) for it was the generic words “other measures” which were now giving colour to the specifically enumerated words instead of the other way round. Chief Williams further submitted that under the Interpretation Act, 1964, which applies, effect must be given to punctuation unlike the position in English law. He relied on section 3(1) of the Interpretation Act, 1964, and section 18(3) thereof pursuant to which “or” and “other” would be construed disjunctively. He thought there were two possible ways of reading S. 7(1)(b)(iii) but preferred the second which was also in accord with the view of the minority of the Court. By this that sub-section in issue would read “. . . connected with (a) banking (b) foreign exchange (c) currency (d) fiscal measures.” This, he said, gave an independent meaning to the words currency, foreign exchange, banking, fiscal measures. No word is wasted. He prayed in aid the principle that the legislature cannot be taken to have used any word in vain. Hill v. William Hill Park Lane Ltd. (1949) A.C. 530, 548. He preferred the interpretation in the minority judgment which he argued construed banking in its ordinary sense wide enough to include every banking transaction. In urging this Court to overrule itself in the Jammal case Chief Williams referred to the attitude of this Court as exemplified in its decision in Bucknor McLean & Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1 at 23 Line 28.

In supporting the majority judgment in Jammal’s case (Supra), Mr. Ladosu Ladapo, learned counsel to the respondent, thought the majority judgment was right in holding that the ejusdem generis rule applied. He thought that it also applied in reverse. He relied on three precedents to which the majority judgment had made reference. These were Nasr v. Bouri (1969) 1 N .M.L.R. 38, 40 and 42 where in ascertaining the meaning of “premises” in the Rent Control (Lagos) Amendment Act 1965, this Court held that the words “or other lawful purposes” in section 1(4) of the Act must be construed as lawful purposes similar to “living or sleeping”. Second was the House of Lords decision in Inland Revenue Commissioners v. Frere (1965) A.C. 402 that the word “interest” in the phrase “interest, annuities or other annual payments” in the Income Tax Act, 1952, meant “annual interest”. The third was Colehill and District Investment Co. Ltd. v. Minister of Local Government & Anor (1968) 1 W.L.R. 600 at 605 where the Court of Appeal in England held that in determining the meaning to be given to the phrase “building, engineering, mining or other operations” in section 12(1) of the Town and Country Planning Act, 1947, the words “other operations” must be construed ejusdem generis with “building”, “engineering” and “mining”. Mr. Ladapo submitted that the majority judgment dealt with the meaning of banking measures and gave two examples-orders or regulations of the Federal Government as relate to the Banking Act 1969 and the Central Bank of Nigeria Act. On the contention that the majority did not give reasons for their decision, he submitted that they in fact gave four which included expeditious despatch of revenue cases and the fact that it was never intended to clutter up the Federal Revenue Court with disputes arising from banker/customer relationships. He further submitted that the legislature will not grant jurisdiction to a new court without expressly stating so. If the intention of the Federal Military Government was to exclude jurisdiction from other courts in all banking matters it would have been easy to say so, he contended. He referred to section 7(1) (c) of the Act which mentions the Company Act and argued that the Act would have mentioned the Banking Act specifically too. He further submitted that if banking was included in section 7(1) (c)(ii) of the Act there would have been no argument as to its full meaning. He also referred to that part of the majority judgment in which it was observed that Act No. 13 of 1973 was not elegantly drafted and needed some retouching to avoid uncertainties and argued that if the intention of the legislature had been other than as found by the majority, some amendments would have been made to the Act since then. Finally, Mr. Ladapo urged that as the highest Court in the land this Court should be cautious in overruling itself. He submitted that before the highest Court overrules a judgment, which has set up finality in the law, it ought to be on very high principles of law. He prayed in aid Jones v. Secretary of State (1972) 1 A.E.R. 146, 149. He thought that the decision in Jammal was right. He submitted that even if the Court thought otherwise the proper order to be made in the present case would be remission of the case to the Federal High Court and not striking it out. This, he said, is pursuant to the Revenue Court (Amendment) Act No. 36 of 1975.

I do not myself think that one can arrive at a correct interpretation of section 7 of Act No. 13 of 1973 without constantly bearing in mind the object for which the Federal Revenue Court (as it then was) was set up. It was essentially to deal expeditiously with matters pertaining to the revenue of the Government of the Federation, which it was felt at the time, were not being so handled by the State High Courts. I would place emphasis on that part of the judgment of the majority in which Elias, C.J.N., said:

“It does not seem to us that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker-customer relationship, such as disputes in respect of an overdraft, or the negligent payment of a forged cheque or negligent dishonouring of a customer’s cheques-all ‘banking transactions’ having nothing to do with Federal revenue concern.”

Admittedly what is being construed here is a statute and not a constitutional document but I believe that the principle of considering the object and scope of the provision is equally applicable. See Groves v. Slaughter 10 U.S. Supreme Court Reports 800, L. Ed. first series; Gibbons Vogden 6 U.S. Sup. Ct. Reports 23. L. Ed. 1st Series.

In my view the principal part of section 7 is really section 7(1)(a) which provides 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.”

It is the semi-colon used before, sub-sections (b), (c) and (d), which have introduced the uncertainty as to the legislative intent of the legislature. I have no doubt that the intention was to vest jurisdiction in the Federal Revenue Court to deal with civil matters relating to the matters enumerated in sub-sections (b) and (c) in so far as they relate, to the revenue of the Government of the Federation. That would colour the meaning to be attached to all those enumerated subjects e.g. banking. There has to be a revenue element, which involves the Federal Government. Although the explanatory note inserted at the end of the Act is neither a part of it nor intended as a sure guide to the interpretation of the Provisions, paragraph 3 is instructive. It states as follows:

“The Federal Revenue Court shall have original jurisdiction in certain specified matters including taxation of companies, customs and excise duties, banking, foreign exchange, currency and fiscal measures of the Government of the Federation, and priority is to be given to all such revenue cases . . .”

The minority judgment, and Chief Williams has urged us to accept it, and argued that “banking”, “foreign exchange”, and “currency”, should each stand alone and be construed as such because of the commas which separate them and that banking was used as a noun in section 7(l)(b)(iii) of the Act. With the greatest respect, in my view this rendering would only be possible if the of the Act had indeed read thus:

“(b) connected with or pertaining to

(iii) banking

(iv) foreign exchange

(v) currency or

(vi) other fiscal measures.”

On the contrary the was “(iii) banking, foreign exchange, currency or other fiscal measures”. This led to the conclusion of the majority that the proper interpretation of the sub-section and the natural and ordinary meaning must be “banking measures”, “foreign exchange measures”, “currency measures” and “other fiscal measures”.

As regards the commas to which reference has been made above, punctuations are really not quite relevant in the construction of statutes (see Maxwell on Interpretation of Statutes 12th Edition at page 12). This however, it must be conceded, may be the position in English law. Section 3(1) of our own Interpretation Act, 1984 No. 1 of 1964 states that “Punctuation forms part of an enactment and regard shall be had to it accordingly in construing the enactment”. But section 1 thereof provides that “this Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment”. Again with the greatest respect, I think that with all that has been said above about the proper import of section 7(1)(b )(iii) there was clearly a contrary intention to its being given the meaning ascribed to it by the use of commas.

As regards the decision of the majority that the ejusdem generis rule applies in construing section 7(1)(b)(iii), I do not think that this can be justly supported by claiming that the rule applies in reverse. If the ejusdem generis rule applied, the generic words “other fiscal measures” would have taken their colour from the specifically enumerated subjects banking, foreign exchange, and currency and not the other way round as indeed happened here. Nor do I think, as indeed the minority judgment did not, that the cases Nasr v. Bouari (1969) 1 N.M.L.R. 38, 40 and 42 and Colehill and District Investment Co. Limited v. Minister of Local Government and Anor (1968) 1 W.L.R. 600 at 605 support the position of the majority judgment since it is clear to me that the generic terms “or other lawful purposes” and “other operations” which occurred in both cases were construed ejusdem generis with the specifically enumerated subjects in those two cases, which were “living and sleeping” in one and “building”, “engineering” and “mining” in the other. Rather than argue that the ejusdem generis rule was applied to section 7(1)(b)(iii) in reverse, I think that the basis of the decision was that associated words could be understood in a common sense. “Where two or more words which are susceptible of analogous meaning are, coupled together, noscitur a sociis. They are understood to be used in their cognate sense. They take, as it were, their colour from each other the meaning of the more general being restricted to a sense analogous to that of the less general”. See Maxwell: Interpretation of Statutes 12th Edition p. 289. The noscitur a sociis rule was applied to the construction of the Offences Against the Person Act 1837 (i.e. of England) which made it a felony to shoot at or to “stab cut or wound” any person. The word “wound” was held to be restricted by the words which preceded it to injuries inflicted by an instrument, and consequently to bite off a finger or a nose, or to burn the face with vitriol, was not to wound within the meaning of the Act. See R. v. Harris (1836) 7 C.&P. 448. See also Pengelly v. Bell Punch Co. Ltd. (1964) 1 W.L.R. 1055 per Diplock L.J. at page 1099. As was said in Virginia v. Tennessee 148 U.S. 503, 135 Supreme Court 728; 37 L. Ed. 337.

“Noscitur a sociis is a rule of construction applied to all written instruments. The obscurity or doubt of any particular word may be removed by reference to associated words. And the meaning of a term may be enlarged or restricted by referring to the object of the whole clause in which it is used.”

It seems to me that taken in this con and having regard to section 1 of the Interpretation Act 1964 the words “or” and “other” in section 7(1)(b)(iii) of the Act would appear to imply similarity and ought not to be construed disjunctively.

Having held that the majority judgment is right in construing section 7(1)(b)(iii) such that the Federal Revenue Court is restricted to its essentially revenue protection functions while the State High Courts deal with such matters in which no issue of the revenue of the Government of the Federation arises, I would agree that there has to be express provision and a more definitive provision than section 7(1)(b )(iii) before one can accept the contention that “all banking matters” must fall within the jurisdiction of the Federal High Court. I would in this connection gratefully adopt the passage in Maxwell: Interpretation of Statutes 10th Edition pp. 128-9 referred to in the majority judgment to the effect that;

“It is supposed that the legislature would not make any important innovation without very explicit expression of its intention; especially since in recent years such an intention has often been very explicitly expressed. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the legislature intended to deprive the Superior Court of the jurisdiction, which it already possessed over the same cases. Thus, an Act which provided that if any question arose upon taking a distress it should be determined by a commissioner of taxes would not thereby take away the jurisdiction of the High Court to try an action for an illegal distress.”

Following the same reasoning I would agree with the submission of Mr. Ladapo that if the legislature intended to vest such a wide jurisdiction on the Federal Revenue Court “in all banking matters” nothing could have stopped it from specifically mentioning the Banking Act. Also nothing would have stopped it from including banking in section 7(1) (c)(2) of the Act. I have therefore come to the conclusion that the decision of the majority was right and ought to be allowed to stand.

There is just one other matter I would wish to deal with before leaving this part of the appeal. Learned counsel to the respondent urged this Court, as a Court of last resort, to be wary about overruling its decisions when such decisions had stated the finality of the law on the relevant subject. He referred to the practice in the House of Lords in England. In Jones v. Secretary of State for Social Services, Hudson v. Secretary of State for Social Services (1972) 1 A.E.R. 145 Lord Reid said at page 149:

“My understanding of the position when this resolution was adopted was and is that there was a comparatively small number of reported decisions of this House which were generally thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy and that such decisions should be reconsidered as opportunities arose. The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled, courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternative open to them. But this is bound to led to uncertainty for no one can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.

But that certainty will be impaired unless this practice is used sparingly. I would not seek to categorise cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents.”

The House expressed similar views in Vestey v. Inland Revenue Commissioners (Consolidated) (1979) 3 W.L.R. 915 where their Lordships again said:

“The discretion conferred on the House of Lords by Practice Statement (Judicial Precedent) (1966) 1 W.L.R. 1234 should be exercised sparingly particularly in relation to questions of the construction of statutes, and the House should try to keep it governed by stated principles but the fact that the circumstances of a particular case cannot be brought precisely within the formulae used in others of a different character should not be fatal to its exercise.”

I believe that this Court is not unconcerned with the principle of stare decisis and the need to maintain certainty of the law. But it would not feel obliged to perpetuate a decision if it is satisfied that such a decision is manifestly wrong or was given per incuriam some relevant statutory or constitutional provisions. In Mrs. Bucknor-McLean and Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1 at pp. 23-25 where a submission similar to that made here by learned counsel to the respondent was urged on the court (i.e. to overrule its decisions in very rare cases) Idigbe J.S.C. put the principle in these words:

“I have no doubt that this Court will, and I do, treat this pronouncement of the House of Lords (i.e. in 1966 3 All E.R. 77) with considerable respect. All the same I share the view of Lord Morris in Conway v. Rimmer that ‘though precedent is an indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interests of justice and the proper development of the law’ (See (1968) 1 All E.R. 874 at 892). With particular reference to the recent cases of Jammal (i.e. Shell B.P. etc. v. Jammal Engineering Nigeria Limited (1974) 1 All N.L.R. 542) and Owumi based as they are in part on some of the statements in another recent case of Jaffer v. Ladipo (Supra), I see no more justification for perpetuating recent error than for retaining uncorrected any error in much older decisions of this Court. ”

Indeed in recent times this Court had overruled several of its decisions: See Nofiu Surakatu v. Nigeria Housing Development Society Ltd. (1981) 4 S.C. 26; Mrs. Bucknor-MacLean and Anor v. Inlaks Ltd. (Supra); and Alhaji Raji Oduola and Ors v. John Gbadebo Coker and Ors (1981) 5 S.C. 197.

However, I do not think that the present case falls into one of those decisions that deserve overruling. For the reasons I have given, I do not accept the contention of learned counsel to the appellants that the decision of the majority in Jammal’s case was wrong. The Lagos State High Court had jurisdiction to entertain the suit. That part of the appellant’s ground 13 must therefore fail.

I will now move to the constitutional issue which concerned the proper interpretation of section 230 of the 1979 Constitution. Section 230 of the Constitution provides as follows:

“230. (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction

(a) In such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly and

(b) In such other matters as may be prescribed as respects which the National Assembly has power to make laws.

(2) Notwithstanding sub-section (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.”

On this part of the case, Chief Williams submitted that the interpretation should be approached from the true meaning and intent of the Constitution. The argument he said should start from section 6 of the Constitution, which deals with judicial power. He submitted that judicial power constitutes one of the three major attributes of a sovereign. It referred to the power of the supreme authority to decide disputes among its subjects including strangers within its gates. He further submitted that in any federation where sovereign power is shared, judicial power would also be shared between the Federation and its component parts. He submitted that section 6 of the 1979 Constitution read with Chapter 7 of the same Constitution-which deals with the Judicature-clearly intend a division of the judicial power between the Federation on one hand and the States on the other. He referred to section 6 sub-sections (1) and (2) of the 1979 Constitution. He said that prior to 1979, the Constitution had been silent on the vesting of judicial power but in 1979 there was distinct vesting of judicial power of the Federation and distinct vesting of judicial power of the States. Section 6 of the 1979 Constitution, he pointed out, did not show what courts were established for the Federation and those established for the States. Chapter 7 of the Constitution has done this. Part 1 sections A, B and C deal with the Supreme Court, the Federal Court of Appeal and the Federal High Court, while Part 2 sections A, B and C deal with the High Court of the State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State, these being the State courts. These courts established for the Federation and those established for the States, he said, are different-there is even difference in the manner in which vesting of judicial power is made. As regards the Supreme Court and the Federal Court of Appeal, he submitted that they can exercise judicial powers of the States, but in respect of the Federal High Court it was his contention that that court will exercise jurisdiction of the Federation, which in his opinion relates to the legislative subjects within the competence of the National Assembly. He submitted further that unless the Constitution expressly says so State courts do not have federal jurisdiction. He referred to section 250(1) (a) of the 1979 Constitution.

As regards section 230 of the Constitution, he said that the particularly relevant paragraph was 230(1)(b). The question, he thought, was whether “prescribed” therein intended to apply in the present or the future. He referred to the definition of “prescribed” under section 277 of the 1979 Constitution-“prescribed by or under this Constitution or any other law”-and concluded that the jurisdiction of the Federal High Court is as prescribed by the Constitution and such other law as may be prescribed by the National Assembly. He said that “as prescribed” in section 230 ought to be read as relating to the present and prayed in aid section 275(4) of the Constitution and the decision of the Federal Court of Appeal in Federal Republic of Nigeria v. Eze (1982) 3 N.C.L.R. 259; Minister of Internal Affairs v. Shugaba (1982) 3 N.C.L.R. 915 and Senate of the National Assembly v. Tony Momoh (unreported). “Banking,” he said, was in the Exclusive Legislative List in the 1979 Constitution and it encompassed all matters including banker/customer relationship. In Chief Williams’ view, under section 230(1)(b), the Federal High Court would have jurisdiction in such other matters prescribed under the Constitution in respect of which the National Assembly has power to make laws, which he thinks refers to the Exclusive Legislative List.

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Chief Williams concluded by arguing that although the judicial power of the Federation relates to all matters in the Legislative Lists it does not mean that the jurisdiction of the Federal High Court can include all the matters in respect of which the National Assembly has power to make law. He excluded item 34 in the Exclusive Legislative List, which is a matter in respect of which the Supreme Court has exclusive jurisdiction.

For his part Mr. Ladapo also dealt with the concept of judicial power and jurisdiction. He agreed with Chief Williams that section 6 of the 1979

Constitution did not deal with jurisdiction. The specific allocation of judicial power is the thing that gives jurisdiction to the individual courts under the Constitution. As regards the contention that there was Federal judicial power and State judicial power, he submitted that while it is clear under the Constitution what the executive power of the Federation and the States are, it is not clear what the Federal and State judicial powers are. He submitted that one couldn’t talk of Federal judicial power and State judicial power. The States courts he contended have been given Federal judicial power, and besides, the Supreme Court and the Federal Court of Appeal which are Federal courts but which he would rather redesignate National courts exercised some State judicial power.

Mr. Ladapo did not agree that the jurisdiction of the Federal High Court is co-extensive with Federal legislative power. As regards section 230, it is his submission that sub-section (2) therein restates the jurisdiction given to the Federal High Court by section 7 of Act No. 13 of 1973. Section 230(1) (a), he submitted, is not self-executing. The National Assembly, he argued, has to prescribe and this would relate to telephone bills, etc. The National Assembly was yet to prescribe but has stopped at the content of section 7 of Act No. 13 of 1973. As regards section 230(1) (b), he submitted that it gives power to the National Assembly in relation to the future. The Assembly has as yet not prescribed. He said that such an interpretation was not absurd having regard to the unlimited jurisdiction given to the State High Courts under section 236 of the Constitution, nor would it lead to tautology since the section (i.e. 230) was made “subject to the provisions of the Constitution” and one had therefore to look at other provisions that conferred jurisdiction on the courts e.g. sections 236 and 250. He thought that section 230(1)(b) deals with such other matters other than the revenue of the Federal Government.

He contended that the only sections under the 1979 Constitution which confer jurisdiction on the Federal High Court are Ss. 230, 237 and 42 and this was to be contrasted with the limited jurisdiction conferred on the State High Courts under section 236 as well as the extra jurisdiction conferred on them by section 237(2)(c) and section 250 of the 1979 Constitution. It was his view that the decisions of the Federal Court of Appeal in Eze (Supra); Shugaba (Supra) and Tony Momoh’s case in so far as they decided that section 230(1)(a) and (b) were self-executing provisions were wrong. He pointed out that the views expressed by the learned justices of the Federal Court of Appeal were in any case obiter.

He concluded by submitting that although the subject of the dispute in the suit in hand-banking-was in the Exclusive Legislative List it did not mean that the State High Courts had no jurisdiction. He prayed in aid section 275(1) of the 1979 Constitution as well as the Regional Courts (Federal Jurisdiction Act) 1958 and sections 10 and 11 of the High Court Law, Cap 52 of Lagos State.

In approaching this Constitutional problem, it might be useful to reiterate some of the principles of construction of Constitutions as laid down in decisions of our Courts. A Constitution is a living document (not just a statute) providing a framework for the governance of a country not only for now but for generations yet unborn. In construing it, undue regard must not be paid to merely technical rules for otherwise the objects of its provisions as well as the intention of the framers of the Constitution would be frustrated.

As was stated in Minister of Home Affairs v. Fisher (1979 2 W.L.R. 899; 1980 A.C. 319 at 328 a Constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament. Although the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. Such an instrument should be treated as sui generis calling for principles of interpretation of its own suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law.

It has also been accepted by all our courts that a broad and liberal spirit should prevail in interpreting the provisions of our Constitution although one has constantly to bear in mind the object, which such provisions were intended to serve. Sir Udo Udoma J.S.C. very aptly stated this in Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at 148 where the learned Justice said:

“My Lords, it is my view that the approach of this Court to the construction of the Constitution should be and so it has been, one of liberalism, probably a variation of the theme of the general maxim ut res magis valeat quam perea. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accordance and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

See also Prigg v. Pennsylvania 16 Pet 539: U.S. Supreme Court Reports 1060, L. Ed. first series. It is also important for the exercise in hand to remember that the provisions of a Constitution ought to be interpreted as a whole i.e. related sections ought to be interpreted together. See Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 5 S.C. 112 at 134; Reid v. Covert 354 U.S. 1; 77 Supreme Court 1222.

Having referred to the guiding principles, I will now return to the contentions of the parties. It would seem to me that the submissions of Chief Williams, S.A.N., for the appellants, can fairly be summed up in this way. Ours is a Federation and the 1979 Constitution has distributed executive, legislative and judicial powers between the federation and its component parts. Judicial power has been so vested in the courts under the Constitution that the Federal courts (contained in sections A, B, C of Part I of Chapter 7) and State courts (contained in sections A, B, C of Part II of Chapter 7) exercise Federal judicial power and State judicial power respectively. Federal judicial power is co-extensive with Federal legislative power (which of course extends to the subjects in respect of which the National Assembly can make laws). Federal Courts (with perhaps the exception of the Supreme Court and the Federal Court of Appeal which are in a peculiar position) exercise Federal jurisdiction [jurisdiction being no more than allocation of judicial power to the individual courts in respect of specified subjects. Diplock L.J. has adequately dealt with the concepts of judicial power and jurisdiction in Anisminic Ltd. v.The Foreign Compensation Commission and Anor (1967) 3 W.L.R. 382 at 394; See also Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1981) A.C. 275 Sub nom British Imperial Oil Co. Ltd. v. Federal commissioner of Taxation (1926) 38 C.L.R. 153; De Smith: “Judicial Review of Administrative Action” 2nd Edition at p. 96; Nwabueze: “Judicialism in Commonwealth Africa” Chapt 1] and this relates to subjects in the Exclusive Legislative List. “Prescribed” under section 230(1) (b) of the Constitution means “prescribed under the Constitution” and since the Federal High Court exercises the totality of Federal judicial power at first instance, the jurisdiction conferred on it in such other matters “prescribed under the Constitution” as respects which the National Assembly has power to make laws relates to matters within the Exclusive Legislative List including banking.

This line of reasoning also draws support from the strong views ex pressed by Nnaemeka-Agu J.C.A. in Senate of the National Assembly v. Tony Momoh decided by the Federal Court of Appeal on 19th July, 1982, and as yet unreported. There the learned justice put it this way in his lead judgment:

“I am satisfied that the combined effect of sections 6(1) and 230, items 34 and 67 of the Exclusive Legislative List, and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution is to vest in the Federal High Court full jurisdiction over Federal causes and matters at first instance. It is supposed to fulfill for the Federal Government similar jurisdiction and powers therefore as the High Court of a State. Any lingering doubts I might have entertained about the plentitude of its powers is dispelled by a glance at section 231 which provides that for the purpose of exercising any jurisdiction conferred upon it by the Constitution or the National Assembly, that Court shall have all the powers of the High Court of a State. Reading together sections 6( 1), 230 and 231; items 34, 67 and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution, the fallacy of Mr. Momoh’s attempt to equate that Court to the defunct Federal Revenue Court becomes only too palpable. Incidentally, Mr. Momoh is not alone among lawyers who still see the Federal High Court from the coloured glass of the drastically reduced jurisdiction of the defunct Federal Revenue Court. They ignore its inherent powers as a superior court of record now given to it by a combination of section 6(3) and 6(6)(a) and its powers being equated to those of State High Courts by section 231 (1) of the Constitution. They overlook the wide provisions of section 230, particularly section 230(1)(b). In spite of the above provisions some say it has no inherent power to grant bail to a convicted person. In my view, the whole attitude needs be changed. In my opinion we must reconcile ourselves to the reality that by a deliberate choice we have elected federalism with all its implications; that the raison d’etre is avoidance of internal conflicts by constitutionally recognising our internal diversity by having States which are sovereign within their spheres of authority and a Federal Government which is not only equally supreme but also independent of State Governments in its own sphere-each of the legislative, executive, and judicial arms of governments. ”

That our constitution has embraced the principle of federalism is and in doubt. From it follows the share-out of executive, legislative and judicial powers between the component parts. But we must not make too much of this principle of federalism for it is quite obvious that the spirit of federalism in a Constitution cannot override the, actual words used in the Constitution. In the same vein, I cannot help but feel that the appellants and other protagonists of their view on this point have over played the difference between Federal judicial power as vested by section 6(1) of the Constitution and State judicial power as vested by section 6(2) I will now set down the provisions of section 6 of the Constitution. They are as follows:

“6. (1) The judicial power of the Federation shall be vested in the courts to which this section relates being courts established for the Federation.

(2) The judicial power of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(3) The courts to which this section relates established by this Constitution for the Federation and for States specified in subsection (5) (a) to (f) of this section shall be the only superior courts of record in Nigeria. . .

(5) This section relates to

(a) The Supreme Court of Nigeria;

(b) The Federal Court of Appeal;

(c) The Federal High Court;

(d) a High Court of a State;

(e) a Sharia Court of Appeal of a State;

(f) a Customary Court of Appeal of a State;

(g) . . .

(h) . . .

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) Shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

This provision clearly shows that the line between Federal judicial power and State judicial power is not so precise and certainly not so rigid. The courts, that is those vested with judicial power in sections 6( 1) and 6(2) of the 1979 Constitution and enumerated in section 6(3) are to enjoy “inherent powers and sanctions of a court of law” and their power is to extend to “all matters … and to all actions and proceedings relating thereto”. As Professor Ben Nwabueze observes in his book “The Presidential Constitution of Nigeria”, “it is not a delimitation of the extent of Federal or State judicial power. It is rather a definition of the nature of judicial power”.

As will appear later in this judgment as other evidence of the obscure line, State courts, particularly the State High Courts, have given, by the Constitution, not the National Assembly, jurisdiction in Federal causes and matters. (See sections 250 and 237(2) (c) of the Constitution. Equally, jurisdiction has been given to two Federal Courts-the Supreme Court and the Federal Court of Appeal-in appeals from State courts in respect of subjects within the competence of the State House of Assembly. Appeals go to the Federal Court of Appeal and thence to the Supreme Court from the State High Courts, the Federal High Court, the Sharia Court of Appeal and the Customary Court of Appeal in respect of matters which originate from both Federal and State law. (See sections 212, 213, 220 of the 1979 Constitution and item 34 of the Exclusive Legislative List). The Supreme Court and the Federal Court of Appeal far from supporting the rigid and precise line being drawn between Federal judicial power and State judicial power are in a peculiar position and might well be designated National courts as urged by Mr. Ladapo, learned counsel for the respondent, while under our Constitution the lines between Federal executive and legislative power and State executive and legislative power appear precise and well set down (see sections 4(1), 4(6), 5(1)(a) and 5(2)(a) of the Constitution), the same cannot be said of the Federal and State judicial power. This to my mind undermines to a substantial extent the platform on which much of the submission of learned senior counsel to the appellants was constructed.

Learned Senior counsel to the appellants had as stated earlier in the judgment prayed in aid three judgments of the Federal Court of Appeal- Federal Republic of Nigeria vs Eze (Supra); Minister of Internal Affairs v. Shugaba (Supra) and Senate of the National Assembly vs Momoh (Supra). None of these cases has come on appeal to this Court. It is correct to say that it is only in Eze’s case that the question of jurisdiction of the Federal High Court and the proper meaning of section 230(1)(b) of the Constitution was considered. In Shugaba’s case, although 2 of the learned justices of the Court of Appeal agreed with the interpretation of section 230( I )(b) being urged on this Court, the case was in fact concerned with enforcement of fundamental rights and turned on the proper meaning of section 42 of the 1979 Constitution. In the Momoh case, although four of the learned justices of the Court of Appeal upheld Chief Williams’ interpretation of section 230(1)(b), the case was concerned with the scope of sections 36 and 82 of the 1979 Constitution. The views expressed in these two cases are to my mind obiter. As regards Shugaba’s case the position is even more confounded by the fact that the decision of the Court of Appeal given by a majority of 4 justices to one appears to have been disapproved in Momoh’s case (again by a majority of 4 to one) by another panel of the Court of Appeal on the ground that as the Court in Shugaba’s case did not advert its mind to section 42(2) of the Constitution its decision was given per incuriam.

I propose therefore to look more closely only at Eze’s case. In that case the charge was in relation to offences under the Firearms Act, 1966, and the Customs and Excise Management Act, 1958. The learned Chief Judge of the Federal High Court declined jurisdiction in respect of the offences under the Firearms Act and the matter went on appeal to the Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, JJ.C.A.). The Court of Appeal held that the Federal High Court had jurisdiction. More important, their Lordships held that “as may be prescribed” under section 230(1)(a) and 230(1)(b) of the Constitution means “as are prescribed” under the Constitution. They also held that the Federal High Court has exclusive jurisdiction in respect of matters contained in the Exclusive Legislative List.

The reasoning by which the Court of Appeal arrived at these conclusions can best be seen from some passages from the lead judgment of Kazeem J.C.A. He said,

“The expression ‘as may be prescribed’ appears in sub-section 1(a) and (b) and it is that expression that requires interpretation in order to resolve this issue of jurisdiction. It is said that a statute is always speaking and future forms used in ordinary writing are not necessary in statutes. Hence futurity can also be construed as present tense. For instance in sentence (a) ‘If any person shall give notice’ can be construed as ‘if any person gives notice’. Similarly a sentence (b) ‘where any balance shall have been found’ .can also be construed as ‘where any balance has been found’. But it does not follow that only the present tense must be used or that the future must never be used. See Emer A. Diredger on ‘The Composition of Legislation’ at page 77 on the subject of use of ‘Tense in Legislative Drafting’. Having regard to this use of tense in legislative drafting, I am of the view that the expression as may be prescribed’ used in section 230(1)(a) and (b) of the 1979 Constitution can also mean ‘as are prescribed’. Again the word ‘prescribed’ has also been defined in section 277 of the said Constitution as meaning ‘prescribed by or under the Constitution or other law’. The same word is also defined in section 18(1) of the Interpretation Act 1964 (No.1 of 1964) which is applicable to the interpretation of the said Constitution to mean ‘prescribed by or under the enactment in which the expression occurs’, that is in relation to this matter the 1979 Constitution. On the basis of these two definitions, the expression ‘as may be prescribed’ will then mean ‘as are prescribed by or under this Constitution or any other law’ . . . It is not disputed that the National Assembly has power to make laws with respect to matters referred to in the Exclusive Legislative List which is Part I of the Second Schedule of the 1979 Constitution and item 2 of that list deals with arms, ammunition and explosives. Also item 67 of the said list deals with any matter incidental or supplementary to any matter mentioned elsewhere in the list and supplementary to any matters according to paragraph 2 of Part III of the said Second Schedule include ‘offences’. In the circumstances, I am satisfied that section 230(1)(b) of the 1979 Constitution confers jurisdiction on the Federal High Court to try cases with respect to all matters in the Exclusive Legislative List which includes Arms, ammunition and explosives.”

First of all with due respect I cannot improve on the observation of Omo J.C.A. in Shugaba’s case when, commenting on this decision of the Court of Appeal in Eze, he said:

“It must be difficult to find a clearer case of using technical rules of interpretation to obscure the plain meaning of the words of a Constitution. At the time the Constitution was passed into law the National Assembly had not begun functioning and the plain meaning of the words ‘as may be prescribed’ obviously refers to its role in future.”

Secondly, apart from the meaning ascribed to the words “as may be prescribed”, the Court of Appeal, once it decided that “on such other matters as may be prescribed as respects which the National Assembly has power to make laws” as contained in section 230(1)(b) of the Constitution means “on such other matters as are prescribed by or under the constitution as respects which the National Assembly has power to make laws”, immediately imported matters within the Exclusive Legislative List. That was probably in answer to the question of the learned Director of Public Prosecutions of the Federation who had asked “What are those things prescribed in the Constitution as respects which the National Assembly has power to make laws within the intendment of section 230(1) (b) of the 1979 Constitution”

Nowhere in the 1979 Constitution was jurisdiction expressly conferred on the Federal High Court with respect to matters within the Exclusive Legislative List. This was not a matter that could have been dealt with by implication, for as was held in Prigg v. Pennsylvania (Supra) a court has no right to insert any clause in the Constitution, which is not expressed and cannot be fairly implied. Implied powers also have to be necessary or incidental to expressed powers: See MacKenzie v. Hare 239 US 299, 36 S. Ct 106. It seems clear to me that the only jurisdiction expressly conferred on the Federal High Court by the 1979 Constitution are contained in sections 42 and 237(2)(a). It would also appear to me that the effect of the decisions of the Court of Appeal on the meaning of section 230(1)(a) and (b) is to hold that they are self executing in the sense that they are Constitutional provisions complete in themselves and which need no further legislation such as an Act of the National Assembly to bring them into force. For the reasons I shall give below, I would say with due respect, that to that extent those decisions of the Court of Appeal are, wrong.

There does not appear to be controversy as to the proper meaning of section 230(2) of the 1979 Constitution. In my view that section not only restyles the old “Federal Revenue Court” “Federal High Court” but vests in the Federal High Court all the powers and jurisdiction enjoyed by the old Revenue Court. Accordingly, in my view pursuant to section 274 of the 1979 Constitution, the Federal High Court will continue to enjoy such jurisdiction and powers as were conferred on the Federal Revenue Court by the Federal Revenue Court Act No. 13 of 1973, section 8(3) of the Counterfeit Currency (Special Provisions) Act, 1974 No. 22 of 1974 as amended by the Constitution of the Federation (Consequential Repeals) Act No. 105 of 1979, section 21(1), 49(1), 62 of the Insurance Act 1976 No. 59 of 1976, and the Bankruptcy Act 1979 No. 16 of 1979.

As regards the proper meaning of “as may be prescribed” which occur in section 230(1)(a) and (b) of the Constitution, it is my view that those words should be given their ordinary, plain meaning. It is indeed one of the first rules of interpretation of statutes (and this applies to Constitutions) that words must be given their ordinary, plain, natural meaning. See Felix v. Thomas (1967) 1 A.C. 292 per Lord Morris at p.306; also Virginia v. Tennessee 148 U.S. 503, 13 S. Ct 728. Applying this principle, I cannot see how “as may be prescribed” can refer to anything else but the future i.e. as the National Assembly may prescribe at a future date subsequent to the coming into operation of the 1979 Constitution. On this interpretation the National Assembly which was not functioning at the time the Constitution came into force on 1st October, 1979, would in future confer jurisdiction on the Federal High Court in matters connected with or pertaining to the Revenue of the Government of the Federation [see 230(1)(a)] and in such other matters contained in the Exclusive Legislative List [section 230(1)(b)]. Acting under section 230(1)(b), the National Assembly could increase the jurisdiction of the Federal High Court as it were on a piecemeal basis. I would say with all respect that it seems to me any other interpretation such as has been urged on us but the appellants will not only lead to absurdity but will mean that several parts of section 230 would have to be discarded. To illustrate the point being made here, apart from the jurisdiction conferred on the Federal High Court by section 230(1)(a) and (b), section 230 contemplates a further jurisdiction conferred on that Court by the National Assembly. Subsection I of section 230 contains the words “and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly”. The question which then arises is this. If under section 230(1)(b) jurisdiction in respect of matters in the Exclusive Legislative List (and as is shown hereunder the Concurrent Legislative List) has already been conferred on the Federal High Court what other subjects are available on which the National Assembly can act Those words would have to be abandoned as they would serve no useful purpose. Further along the same lines, it may be asked in following the interpretation being advanced to us, what would be the purpose of inserting sections 230(2) and 230(1)(a) into the Constitution The provision of section 230(1)(b) would be comprehensive enough to cover all the subjects dealt with in the sub-sections referred to above. One further problem which would follow is this, item 66 in the Exclusive Legislative List, Part I of the Second Schedule to the Constitution reads:

“Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.”

There is no doubt that the National Assembly has power to make laws in respect of the matter in the Concurrent Legislative List in Part II of the same Second Schedule to the Constitution. If section 230(1)(b) has the extensive jurisdiction being canvassed it would cover both the Exclusive and Concurrent Legislative Lists and so exclude the State High Courts!

I do not think that the framers of the Constitution could have intended that it be beset by these problems. Indeed I think that the problems and absurdities listed above to which there are really no answers ought to settle the issue. It has always to be remembered that it is a principle of interpretation of statutes (and I daresay Constitutions) that where the language of the legislature admits of two possible constructions and, if construed in one way, would lead to absurdity or injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words. See Smith v. Great Western Railway (1877) 3 App. Cas. 166. It is also relevant here to remember that there is another presumption in interpretation by which the legislature is held not to use words in vain or to waste words: See A.O. Ejoh v. Inspector General of Police 1963 1 All N.L.R. 250, 260. See also Holmes vs Jennison 14 Pet. 540, 10 U.S. Sup. Ct Reports 579, L.Ed first series.

Should there still be any lingering doubts as to the proper meaning of section 230(1)(b), I would suggest that it is legitimate to look back at the history of the processes which brought the 1979 Constitution, and particularly section 230, into being. “The Court,” said Sir George Jessel M.R. “is not to be oblivious of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the legislature, yet when the history of law and legislation tells the Court, and prior judgments tell this present Court, what the object of the legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to find out what it means, and not with a view to extending it to something that was not intended.” See Holmes v. Guy (1877) 5 Ch. D 901 at 905. In Knowlton v. Moore 178 U.S. 41, 20 S. Ct 747 at p.768. Justice White, while delivering the opinion of the Supreme Court of the United States, used these words which I find apposite:

“The necessities which gave birth to the Constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purpose of tracing to this source any particular provision of the Constitution in order thereby to be enabled to correctly interpret its meaning.”

To advert to the case in hand, the argument in support of such extensive jurisdiction for the Federal High Court must be set against the fact that the establishment of that court was a decision of the Constituent Assembly. The Constitution Drafting. Committee did not recommend it in its draft rather it recommended State High Courts as the only High Courts in the Federation. In its Report (Reports of the Constitution Drafting Committee Vol. 1 at p. xxxv) the Committee said:

“Consistent with our desire to simplify the judicial system, we have not made provision for the continuation of the Federal Revenue Court which was set up in 1973. Since its inception, that Court has given rise to disputes relating to its jurisdiction . . . We were informed that one of the reasons for setting up the Federal Revenue Court was because of delays in dealing with revenue causes and other matters and the need to deal expeditiously with commercial and other case. . . There may be need for having commercial and revenue divisions in some of the State High Courts so that the authorities can monitor the rate at which such cases are being disposed of and to ensure that where required more adequate arrangements are made for their disposal. . . . The Federal Revenue Courts have to deal with all matters within their jurisdiction including matters which can be dealt with by magistrates, and other subordinate courts.”

It is pertinent to add the provisions of section 185 in the Draft Constitution submitted by the Constitution Drafting Committee does not differ substantially from the present section 236 of the 1979 Constitution. The proviso which was included in the original draft of that section (which excluded appellate or supervisory jurisdiction from the High Court in respect of a Sharia Court of Appeal administering Islamic law) was removed. Also removed was sub-section 2 of the draft section dealing with the competent High Court in relation to elective offices. That draft subsection 2 is in substance what has become section 237 of the 1979 Constitution and followed the establishment of the Federal High Court by the Constituent Assembly.

Those historical facts leave me in no doubt that it was the intention of the framers of the Constitution to confer unlimited jurisdiction on the State High Courts. It was deliberate. Accordingly section 236(1) of the Constitution provides as follows:

“(1) Subject to the provisions of the 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, ability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

In my view that jurisdiction will diminish with time as in addition to the jurisdiction which I have conceded in this judgment it already has under sections 230, 237 and 42 of the Constitution. The Federal High Court is conferred by the National Assembly with more jurisdiction in relation to other matters in the Exclusive and Concurrent Legislative Lists.

I would finally on this point wish to suggest that far from supporting the contention of the appellants on the issue of Federal and State Judicial power, sections 250 and 231 of the 1979 Constitution are put in their proper perspective by the historical facts to which I made reference above. Since the newly created Federal High Court (i.e. in the Constituent Assembly) had no Federal subordinate courts, it seemed logical to confer jurisdiction in Federal causes which may arise at such level on State courts. Appeal in such matters would go to the State High Courts.

I am afraid that for these reasons I am unable to accept the submissions of the learned senior counsel to the appellants on the proper meaning of section 230(1)(b). This ground of appeal also fails.

As regards the other matters in this appeal, Ademola J.C.A. in his lead judgment had set them down at p.176. I had earlier on in this judgment indicated the matters I propose to deal with and set down appellant’s ground of appeal relating to those matters. I would only wish to deal with the guarantee, admitted in the proceedings as exhibit 2, given by the second appellant to the respondent. The Court of Appeal affirmed the decision of the learned trial judge on that point. As regards the liability of the second appellant. Chief Williams had submitted that even if he was liable, the liability cannot exceed N500,000. In fact the order of the learned trail judge was for “judgment against the defendant for: … “(3) the sum of N500,000 against the second defendant as a guarantor of the first defendant with interest at the rate of 8% per annum before judgment and 4% thereafter.”

I agree that the terms of the order should be varied such that the judgment is against the second defendant (i.e. second appellant herein) for N500,000 at the rates of interest mentioned above.

See also  Gilbert Akindoyin Awomuti V. Alhaji Jimoh Salami & Ors (1978) LLJR-SC

As for the merits of the appellants’ case on the guarantee, the argument on exhibit 2 had been that the guarantee given by the second appellant was on behalf of Bronik Motors (a division of A. Obikoya and Sons Limited) and not on behalf of Bronik Motors Limited (first appellant) which had not been incorporated at the time the guarantee was given.

I agree with the Court of Appeal that paragraph 3 of exhibit 2 which reads as follows:

“(3) The guarantee shall be continuing security binding on the Guarantor or on each of the Guarantors and his/their executors administrators and legal representatives until the expiry of three calendar months after the receipt by the Bank of notice in writing to discontinue same from Guarantor to any of the guarantors or from his/their executors administrators or legal representatives and notwithstanding any change in the name, style or constitution of the principal”

certainly disposed of that contention. Paragraph 4 of the guarantee was also in these terms:

“(4) If the principal be a Committee or other unincorporated body which has no legal existence or which is under no legal liability to discharge obligations undertaken or purported to be undertaken by it or on its behalf this guarantee shall be valid and binding upon the Guarantor or Guarantors notwithstanding that fact and as though the Guarantor was the principal debtor or if there be more than one Guarantor as though the Guarantors were joint and several principal debtors.”

The terms of paragraphs 5, 13 and 18 of exhibit 2 also leave me in no doubt as to the liability of the guarantor to the limit agreed by the parties in exhibit 2.

For all the foregoing reasons this appeal must fail and it does fail. It is accordingly dismissed. I affirm the judgment of the Federal Court of Appeal dated 6th July, 1982. I also award N300 costs against the appellants in favour of respondents.

IRIKEFE, J.S.C. I was privileged to have a preview of the judgment just read by my learned brother Nnamani, J.S.C. and I agree that, for the reasons so lucidly set out in the said judgment, the word “banking” within the intendment of section 7(1)(b)(iii) of the Federal High Court Act, 1973 does not exhaust all banking relationships so as to inhibit the prosecution of a claim arising from a banking transaction between a banker and a customer on such matters as overdraft, dishonoured cheques and the like, in a State High Court. This was the main plank in the submission of Chief Williams, S.A.N., on behalf of the appellants in this case. In making this proposition, counsel invited us to rule, as a matter of constitutional law, that Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. Part 11 p.208 had been wrongly decided and should now be overruled. In a word, counsel was of the view that the minority decision in the said case delivered by Fatai-Williams, J.S.C. (as he then was) was more in accord with the correct legal position. Mr. Ladapo for the respondent argued that no circumstances had arisen since that case was decided to warrant its being reviewed and overruled by this court. He added that not only was the case correctly decided, but that it had been rightly followed by this court in the case of American International Insurance Company v. Ceekay Traders Ltd. (1981) 5 S.C. p.81 at p.82 (per Bello, J.S.C.).

It is indisputable that, before the Jammal case as also the case in hand, the claim in which is similar to that in the earlier case, the State High Court would have been the appropriate venue for prosecution. The argument here, as has been copiously adverted to in the lead judgment of Nnamani, J.S.C., is that with the promulgation of Act No. 13 of 1973 (establishing the then Federal Revenue Court) and under Section 7(1) (b)(iii) thereof, all banking cases, as opposed to those set out in the said Act had been put beyond the reach of State High Courts. If the true intention had been to achieve the above end, the wording of Section 7 would have been more explicit and Elias, C.J.N., at page 222 of the report in the Jammal case must have had this situation in mind when he stated thus:

“It does not seem to us that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker-customer relationships, such as disputes in respect of an overdraft, or the negligent payment of a forged cheque or negligent dishonouring of a customer’s cheques-all “banking transactions” having nothing to do with Federal Revenue concern. All the State High Courts and other appropriate courts must continue to exercise their jurisdiction in these and similar matters if the Federal Revenue Court must be allowed to concentrate on its essentially revenue protection functions.”

I must add that the Federal Revenue Court and its successor the Federal High Court derive existence from the need to have a court for the more effective and expeditious “garnering in” of Federal revenue. In this regard the Federal High Court differs from the State High Court, which, under Section 236 of the 1979 Constitution, enjoys unlimited jurisdiction, unless such jurisdiction is expressly excluded by statute of the Constitution itself.

I am of the view that, until the National Assembly vests the Federal High Court with unlimited jurisdiction, its jurisdiction would be limited as spelt out under Section 7 of Act No. 13 of 1973 and Section 230 of the Constitution. I also agree that the Federal High Court enjoys concurrent jurisdiction with the State High Courts under Section 42 of the Constitution to grant redress for any infringement of a fundamental right and pending the constitutional establishment of Abuja as the Federal Capital Territory, exclusive jurisdiction under Section 237 of the Constitution to determine any question as to whether any person has been validly elected to the office of President or Vice-President or whether the term of office of President or Vice-President has ceased.

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 over-ruling Jammal has not been made. To do so, as was held in Jones vs. Secretary of State (1972) 1 All E.R. p.145-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.

One unique feature of the 1979 Constitution is the flexibility in the apportionment and exercise of powers as between the Federal and State tiers of government. Although adequate provisions are made for separation of powers so that one government as it were, does not encroach upon the sovereignty of the other cases abound where the National Assembly can by legislation impose functions on the State House of Assembly and vice-versa. The various situations are clearly enumerated in the lead judgment aforesaid. See also Attorney-General Bendel State vs. Attorney General Federation & 18 Others-SC 108/82 (as yet unreported decision of this court).

For the foregoing reasons, I also would dismiss this appeal and adopt the orders contained in the lead-judgment inclusive of the order as to costs.

BELLO, J.S.C. I had the privilege of reading in advance the judgment delivered by my learned brother, Nnamani, J.S.C., for the reasons stated by him, I agree that the word “banking” does not include claims arising from banking transactions between a banker and his customer within the purview of Section 7(1)(b)(iii) of the Federal High Court Act, 1973. I endorse the view that the decision of the majority in Jammal Steel Structures Ltd. vs. African Continental Bank (1973) 1 N.L.R. (Part 11) 208 was correct. Consequently, the Federal High Court has no jurisdiction by virtue of the provisions of the Act to entertain a claim by a banker against his customer for a balance of overdraft grantedly the banker in the normal course of banking business to the customer. The appeal must therefore fail in so far as it relates to the interpretation of Section 7(1)(b)(iii) of the Act.

My learned brother, Nnamani, J.S.C., has also considered exhaustively all the constitutional issues on the jurisdiction of the Federal High Court.

I entirely agree with his conclusions. I would only add a few words because of the constitutional importance of the case.

In my view the Constitution has not vested in the Federal High Court general and unlimited jurisdiction in all matters with respect to which the National Assembly has power to make laws. The contention that such jurisdiction may be inferred from the provisions of section 6 of the Constitution cannot stand on a careful perusal of the other relevant provisions of the Constitution. The division of judicial powers of Nigeria between the courts established for the Federation and the courts established for the component States under section 6 of the Constitution, wherein the judicial powers of the Federation are vested in the Federal courts and the judicial powers of the States in the States courts, is not exclusive. Other provisions of the Constitution permit some Federal courts to exercise jurisdiction on matters that are within the judicial powers of the States. Thus in the exercise of their appellate jurisdictions under sections 213 and 219 of the Constitution, the Supreme Court and the Federal Court of Appeal, which are both Federal courts, are endowed with the judicial powers of the States in the determination of appeals from the States courts. In the same vein, in addition to the general jurisdiction of States High Courts under section 236, the States courts are empowered by section 250 of the Constitution subject to the qualifications stated therein to exercise jurisdiction over the judicial powers of the Federation.

It appears from the fore-going that there are express provisions in the Constitution which invalidate the proposition that may be implied from the provisions of section 6 of the Constitution to the effect that the Federal High Court, being a court established for the Federation, has jurisdiction to the exclusion of States courts over all matters with respect to which the National Assembly has power to make laws.

I now deal with section 230 of the Constitution. It reads:

“230. (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respect which the National Assembly has power to make laws.

(2) Notwithstanding sub-section (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (I) of this section relates, such court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.”

There is no gainsaying the section lacks precision and elegance. Nevertheless, having read the section together with the other relevant provisions of the Constitution, I would not hesitate to conclude that upon the proper construction of section 230 in its ordinary and plain meaning the jurisdiction of the Federal High Court is limited to:

(1) such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed: See section 230(1)(a);

(2) such other matters than those specified in (1) above as may be prescribed: See section 230(1)(b); and

(3) such jurisdiction as was vested in the former Federal Revenue Court established under the provisions of the Federal Court Act 1973: Section 230(2).

It is pertinent, I think, to emphasize that the jurisdiction conferred on the Federal High Court which I have set out in categories (1) and (2) above is not self-executing. There must be in existence an Act of the National Assembly authorising the exercise of such jurisdiction on a matter within the legislative competence of the National Assembly.

Finally, I may point out that the only jurisdiction which the Constitution specifically conferred on the Federal High Court is as follows:

(1) under section 42 the court has concurrent jurisdiction with the State High Courts to grant redress for an infringement of a fundamental right; and

(2) under section 237 it has a temporary jurisdiction pending the constitutional establishment of Abuja as the Federal Capital Territory to determine any question whether any person has been validly elected to the office of President or Vice-President or whether the term of office of President or Vice-President has ceased.

IDIGBE J.S.C. In this appeal the main challenge is to the jurisdiction of

the High Court of Lagos State to deal with the claims in these proceedings, and although I have had the opportunity of reading, before now, the draft of the judgment just read by my learned brother, Nnamani, J.S.C., with which I am in entire agreement, I consider that I ought to add some short comments of my own on the questions of law calling for our consideration, one of which derives from the conflicting decisions of the Federal Court of Appeal (hereinafter referred to as “The Court of Appeal”) on section 230 of the 1979 Constitution of the Federal Republic of Nigeria (hereinafter referred to as “the 1979 Constitution”), while the other relates to the correct interpretation of section 7 (1)(b )(iii) of the Federal Revenue Act 1973, No. 13 of 1973 [now Federal High Court Act 1973]. I would like to confine any comments to only one of the grounds of appeal filed in this Court which reads:

” “Ground

13: The Federal Court of Appeal and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the Federal High Court and not in the High Court of Lagos State.

PARTICULARS OF ERROR

(a) Section 230(1) of the Constitution of the Federal Republic of Nigeria confers jurisdiction in respect of all matters in the Exclusive Legislative List in the Federal High Court.

(b) In the alternative, section 7 of the Federal High Court Act confers jurisdiction in respect of ‘Civil causes and matters . . . connected with or pertaining to . . . banking’ on the Federal High Court.

(c) Section 8(1) of the said Act prohibits the High Court or any other court of a State from exercising jurisdiction [in the matters referred to in (b) above]” [square brackets and contents supplied by me].

The background to the submissions of Chief Williams, learned Senior Advocate, on behalf of the appellants in support of the foregoing grounds of appeal is to be found in his contention that section 6 of the 1979 Constitution clearly manifests an intention, by the framers of that Constitution to divide “judicial powers” between the Federation and the States in such manner that federal jurisdiction can only be exercised by a State court in this country if it is expressly vested with such jurisdiction by the Constitution or by a law enacted by the National Assembly or having effect as if so enacted. Learned Senior Advocate further contends on behalf of the appellants that “the term ‘judicial power’ as used in section 6 of the Constitution is the totality of the power or jurisdiction of courts of law established by a Sovereign Nation for the determination of disputes . . . among its subjects . . . or between itself and any of such subjects. Jurisdiction may be defined as the power or authority of a particular court … to entertain and determine the disputes … placed before it …..

Learned Senior Advocate for the appellants, therefore, contends that the object of section 230(1)(b) of the 1979 Constitution is “to spell out in detail the jurisdiction of the Federal High Court”; and he further contends that the provisions thereof “have to be read against the background of the conferment of the judicial powers of the Federation on (Federal courts i.e.) the Supreme Court, the Federal Court of Appeal and the Federal High Court by section 6(1) of the Constitution as well as the conferment of jurisdiction on States courts over ‘Federal Causes’ and ‘Federal offices’ under section 250”. (Brackets and contents by me). The foregoing contentions are intended as a prop to his main submission that the effect of section 230(1)(b) of the 1979 Constitution is to invest the Federal High Court to the exclusion of State High Courts with jurisdiction in respect of all matters in the Exclusive Legislative List in the Schedule to the said Constitution.

I find myself, however, in agreement with the submissions in reply of learned counsel for the respondent that “although the terms ‘judicial power’ and ‘jurisdiction’ are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit” there is a clear distinction between the two concepts; and that “jurisdiction is the authority of a court to exercise judicial power which is the totality of powers a court exercises when it assumes jurisdiction and hears a case” [Italics by me]. Judicial Power, as is well known, is, indeed, a very wide expression; for apart from its meaning as the power which very sovereign authority must of necessity possess to enable it settle and decide controversies between its subjects and also between its subjects and itself [see Griffith C.J. in Huddart, Parker & Co. Ltd. v. Moorehead (1909) 8 C.L.R. 330 at 357 in which is to be found the definition, of the subject, universally acknowledged as adequate] it is also co-extensive with the power of the State to administer public justice and, again, with the power of the State to make laws; in other words, ‘judicial power’ is co-extensive with the power of the State to make laws and execute them as well. [See also Isaacs J. in Huddart Parker & Co. Property Ltd. v. Moorehead (1909) 9 C.L.R. at 383].

Again, to borrow the language of Griffiths C.J. in the passage in which he defines “judicial power” (and which definition has also been adopted without reserve by the Judicial Committee of the Privy Council in the Australian case of Shell Co. of Australia v. Federal Commissioner of Taxation (1931) A.C. 275 at 295 & 297), “the exercise of this power [i.e. judicial power] does not begin until some tribunal which has power [jurisdiction} to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action [square brackets together with contents as well as italics by me for emphasis]. In other words “judicial power” is also co-extensive with the authority of the court (i.e. power of the court) “to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it (see Justice Miller: The Constitution p. 314; also my observations In Senator Adesanya v. The President of the Federal Republic of Nigeria (1980) 5 S.C.112 at 163-4], in this con, therefore, the expressions is co-extensive with the term jurisdiction.

Although sections 4 and 5 of the 1979 Constitution clearly set out the extent of Federal and State legislative as well as executive powers there is no such clear and precise boundary or delimitation of Federal and State judicial powers. The provisions of S6(6) of the Constitution aforesaid in my view are not in any way intended to delimit the extent of Federal and State judicial powers, rather they tend to define the nature of judicial power as authority for the determination of the rights of parties in suits before the courts. I therefore, do not consider it necessary and appropriate to interpret and decide the issue of jurisdiction of a court against the background of the jurisprudential doctrine of “judicial power” of the State in its wider concept as has been put to us in the course of argument in support of the 13th ground of appeal in the case in hand; and with very great respect, to learned Senior Advocate on behalf of the appellants, I do not find the valiant, very powerful and learned submissions, in support of much of the contentions on this issue very helpful. I will proceed anon to consider the plain language of the provisions of section 230 aforesaid.

Section 230 of the Constitution

In the case of Senate of the National Assembly and another vs. Tony Momoh (yet unreported) decided on 19th July, 1982, in FCA/L/45/81 (hereinafter referred to as “the case of Tony Momoh”), Nnaemeka-Agu, J.C.A., in the lead judgment in which Nasir P., Kazeem and Uthman Mohammed, JJ.C.A., concurred and Adenekan Ademola dissientiente; observed:

“I am satisfied that the combined effect of sections 6( 1) and 230, items 34 and 87 of the Exclusive Legislative List, and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution is to vest in the Federal High Court full jurisdiction over Federal causes, and matters at first instance. It is supposed to fulfill for the Federal Government similar functions and is thereby enabled to exercise similar jurisdiction and powers therefor as the High Court of a State. . .” [italics by me, particularly the expressions-“item 34” and “Federal causes”].

In the 1979 Constitution, the expression “Federal causes” is defined thus: “means civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws” [section 250(3) refers] and “item 34” in the Exclusive Legislative List in Part I of the Second Schedule thereof reads: “Legal proceedings between Governments of States or between the Government of the Federation and the Government of any State. . .” [italics by me]. Pressed therefore, to its logical conclusion, that portion of the decision in the case of Tony Momoh (Supra) in quotation in the immediately foregoing paragraph would appear to vest jurisdiction, in the Federal High Court in a suit, case of a matter in which a State disputes the right of the Federal Government which the latter claims by virtue of a provision of any enactment of the National Assembly made pursuant to the provisions of item 34 aforesaid which seeks to govern legal proceedings between the two tiers of government; and this, notwithstanding the plain language of the provisions of section 212(1) of the said Constitution. However, if effect must be given to the opening phrase-“Subject to the provisions of this Constitution” to section 230(1) aforesaid then it must follow that either the portion of the decision in Tony Momoh’s case (Supra) under consideration needs to be reconsidered or the phrase aforesaid cannot, in the con of the said section 230(1) have any legal content. Further down in the said judgment and immediately following the end of the quotation in the preceding paragraph, the Federal Court of Appeal, per Nnaemeka-Agu, J.C.A., observed:

“It (the Federal High Court) is supposed to fulfill for the Federal Government similar functions and is thereby enabled to exercise similar jurisdiction and powers therefore as the High Court of a State. Any lingering doubts I might have entertained about the plenitude of its powers is dispelled by a glance at section 231 which provides that for the purpose of exercising any jurisdiction conferred upon it by the Constitution or the National Assembly, that court shall have all the powers [NOTE, NOT jurisdiction] of the High Court of a State. Reading together sections 6(1),230,231, items 34, 67 and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution, the fallacy of Mr. Momoh’s attempt to equate that court to the defunct Federal Revenue Court becomes only too palpable. Incidentally, Mr. Momoh is not alone among lawyers who still see the Federal High Court from the coloured glass of the drastically restricted jurisdiction of the defunct Federal Revenue Court. They ignore its inherent powers [again Note: NOT jurisdictions] as a Superior Court of record now given to it by n combination of section 6(3) and 6(6)(a) [of the Constitution] and its powers being equated to those of State High Courts by section 231 (1) of the Constitution. They overlook the wide provisions of section 230, particularly section 230(1)(b) . . .” [square brackets provided together with their contents as well as italics by me for emphasis].

Again, with very great respect to their Lordships of the Court of Appeal, section 231 aforesaid deals with the powers (not jurisdiction) of the Federal High Court; section 230 deals with the jurisdiction (not powers in the wider jurisprudential concept) of that Court. In my respectful view, their Lordships seem to miss this point of distinction and it has led them to a conclusion in the case of Tony Momoh (Supra) in respect of which I finds considerable difficulty in agreeing with. Obviously, section 231 invests the Federal High Court (“for the purpose of exercising any ‘jurisdiction’ conferred upon it by this Constitution”) with all the “powers”-in the wider jurisprudential concept-(and this must exclude the concept of “jurisdiction” which the expression “power” also implies, because of the earlier specific provisions of section 230)-of a State High Court or, (to borrow the language of their Lordships in the passage just quoted above) all the “inherent powers as a Superior Court” which primarily relates to powers inter alia (a) of a Superior Court to deal with contempt (see Ex parte Fernandez (1881) 8 H.&N. 717 per curiam, at 725, 726 and also Wiles J. In the same case in (1861) 10 C.B.N.N.S. 3) and (b) to carry its judgments and/or decisions into execution.

Delivering the lead judgment of the Federal Court of Appeal in Federal Republic of Nigeria v. Jonathan Onyebuchi Eze (1982) 3 N.C.L.R. 259 (hereinafter referred to simply as “Eze’s case”) in which Nnaemeka-Agu and Uthman Mohammed JJ.C.A. concurred, Kazeem, J.C.A. observed with respect to section 230 of the 1979 Constitution as follows:

“Having regard to the use of tense in legislative drafting I am of the view that the expression ‘as may be prescribed’ used in section 230(1)(a) and (b) of the 1979 Constitution can also mean ‘as are prescribed’. Again, the word ‘prescribed’ has also been defined in section 277 . . . as meaning ‘prescribed by or under this Constitution or any other law’. The same word is also defined in section 18(1) of the Interpretation Act . . . to mean ‘prescribed by or under the enactment in which the expression occurs’, that is in relation to this matter, the 1979 Constitution.

“AA” On the basis of these two definitions, the expression ‘as may be prescribed’ will then mean ‘as are prescribed by or under this Constitution or any other law’. Hence the whole of sub-section (1)(b) . . , will read:

‘Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court, shall have jurisdiction-

(b) in such other matters as are prescribed by or under this Constitution as respects which the National Assembly has power to make laws!

“BB” It is not disputed that the National Assembly has power to make laws with respect to matters referred to in the Exclusive Legislative List . . . I am satisfied that section 230( 1 )(b) . . . confers jurisdiction on the Federal High Court to try cases with respect to all matters in the Exclusive Legislative List which includes … For these reasons I am therefore in agreement with the submissions of the learned Director of Public Prosecutions . . . But Mr. Ajayi, S.A.N., learned counsel for the respondent submitted that if the interpretation of section “CC” 230(1)(b) . . . that it confers jurisdiction on the Federal High Court in respect of matters as respect which the National Assembly has powers to make laws is right, it will make nonsense of sub-section (1) of the section. That is because once the court already has jurisdiction with respect to matters in the Exclusive Legislative List, it will be unnecessary to give jurisdiction again to the said court by the National Assembly as was provided in sub-section (l)(a).

It was also pointed out that S250 . . . has even conferred jurisdiction on all State High Courts to exercise powers in respect of Federal causes, that is, matters in which the National Assembly has powers to make law; and if that is so, the Federal High Court could not have been conferred with the same jurisdiction exclusively. . .”(italics by me) see (1982) 3 N.C.L.R. at 287-288.

Earlier in his judgment to which reference is made the learned justice of the Court of Appeal observed:

“There is no doubt that section 7 of the Federal High Court Act, 1973 already confers jurisdiction in respect of certain matters on the Federal High Court; and being an existing law. . . sub-section (l)(a) of section 230 seems to confirm the conferment of that jurisdiction with respect to all matters connected with or pertaining to revenue of the Government of the Federation; but the said section 7 confers more powers than that on the Federal High Court. But sub-section (1)(b) of that section 230 seems to extend the scope of that jurisdiction beyond those- already provided for in section 7 . . .

“DD” It may also well be that since the general jurisdiction was conferred on the Federal High Court by section 7 of the Federal High Court Act, 1973, jurisdiction had again been specifically conferred on that Court under other legislations. See sections 8(3) of the Counterfeit Currency (Special Provisions) Act, 1974 . . . section 21(1), 49(1), 62 of the Insurance Act the definition of the word ‘Court’ in bankruptcy matters under section 142 of the Bankruptcy Act, 1979. …” (Italics by me) [See (1982) 3 N.C.L.R. at 267]

I have given considerable thought to this matter and I am of the firm view that the contentions of learned Senior Advocate, Mr. Ajayi, S.A.N., in the Eze case (Supra) (in that part of the quotation set out earlier and against which I endorsed the letters “CC” in capitals at the margin) are in line with what seems to me to be the correct approach in interpreting the section under consideration. If the view advocated before the Court of Appeal in Eze (Supra) by the learned Director of Public Prosecutions and now before us by learned Senior Advocate, on behalf of the appellants in the matter in hand, is correct there will be no need for the enactment contained in section 230(1)(a); nor would there be any need for the additional provisions of sub-section (2) of section 230; particularly the portion thereof which reads: “and shall continue to have all the powers and exercise the jurisdiction conferred on it by any law.” Although I share the views of the Court of Appeal that the word “prescribed” also means “prescribed” under the enactment in which it is used, or any other enactment, I find it difficult to understand the reasoning which has led to the conclusions in that part of the quotation against which I endorsed at the margin the letters “BB” in capitals. I share the views of Uche Omo, J.C.A., in that portion of his judgment in Minister of Internal Affairs v. Shugaba Abdurrahaman Darman (1982) 2 N.C.L.R. 915 at 963-4 where, after referring to the interpretation given to section 230 aforesaid by the decision of the Court of Appeal in the case of Eze (Supra), he said:

“It must be difficult to find a clearer case of using technical rules of interpretation to obscure the plain meaning of the words of a Constitution”.

It seems to me that the expression “as may be prescribed” in section 230 can only mean “as may be prescribed in the future.” I will deal with this aspect of the matter later in this judgment. It is interesting to note, in passing, that the indirect effect of the decisions in Eze (Supra) and Tony Momoh (Supra) [i.e. the interpretation given to section 230(1)(b) of the 1979 Constitution by the Federal Court of Appeal] is, albeit unintentional, to overturn the decision of the Supreme Court in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. Part 2, 208, so far as concerns claims relating to Banking (an item in the Exclusive Legislative List) State High Courts

Now, under section 236 of the Constitution the jurisdiction of the State High Court is unlimited in all the matters set out in sub-section (1) of section 236. The question in issue in this appeal is whether a State High Court has jurisdiction in all matters i.e. including those in respect of which the National Assembly alone has powers to make laws (in other words, matters which may be regarded as “Federal causes”) The 1963 Constitution made no specific or special provision for conferment of jurisdiction in respect of “Federal causes” on the State or Regional Courts (High Courts inclusive). It was the Interpretation Act (then in force) i.e. Cap. 89 in Vol. III of the Laws of Nigeria 1958 edition which by section 44 [inserted in our Law books by L.N.47 of 1955, and which section was not repealed in 1983, and has still not yet been repealed; but preserved by section 28(2) of the Interpretation Act 1964 under the new title of The Law (Miscellaneous) Provisions Act] made it possible for Regional Courts to entertain jurisdiction in criminal proceedings in such matters. That section provides:

“44. (1) Where jurisdiction is conferred by any law upon a High Court or a magistrate’s court established for a Region with respect to-

(a) the summary trial and conviction; or

(b) the examination and commitment for trial or indictment;

or

(c) the trial and conviction on indictment, Region, have the like jurisdiction with respect to offenders or persons charged with offences against Federal law committed in the Region or who may lawfully be tried for offences committed elsewhere.

(2) In this section, “Federal law” means any law enacted by the Federal Legislature or having effect as if so enacted, which relates to a matter within the exclusive legislative competence of the Federal legislature.

Again the provisions of Regional Courts (Federal Jurisdiction) Act Cap. 177 in the 1958 edition of the Laws of Nigeria also made it possible for Regional Courts to have jurisdiction with respect to the hearing and determination thereof-in civil causes relating to matters within the legislative competence of the Federal Legislature and of appeals arising out of such causes (Section 3 of Cap. 177 aforesaid refers) [Section 4 of Criminal Procedure (Northern Region) Act 1960 No. 20 of 1960 is also to the like effect]. As is obvious from the preamble to Cap. 177 aforesaid it is provided in the Constitution current in 1958 the year in which Cap. 177 was enacted that the “Courts of a Region shall have such jurisdiction in respect of matters of exclusive Federal Legislative competence as may be conferred upon them by the Federal Legislature.” [see section 152(1), Chapter V of the Nigerian (Constitution) Order in Council 1954: Statutory Instrument No. 1146 of 1954] which reads: “Subject to the provisions of this Order, the courts established for a Region shall have such jurisdiction-(a) with respect to any matter that is included in the Exclusive Legislative List as may be conferred upon them by any law enacted by the Federal Legislature; (b) with respect to any matter that is included in the Concurrent Legislative Lists as may be conferred upon them by any law enacted by the Federal Legislature, or the Legislature of that Region; (c) with respect to any matter that is not included in the Exclusive Legislative List or the Concurrent Legislative List as may be conferred upon them by any law enacted by the Legislature of that Region or having effect under section 52 of this Order as if it has been so enacted” .

See also  Daniel Igwe Uche Vs Jonah Eke & Ors (1990) LLJR-SC

The position then was that until the enactment of Cap. 177 aforesaid Regional Courts were precluded by the 1954 Constitution from having jurisdiction in civil suits and criminal causes relating to enactments then within the Legislative competence of the Federal Legislature; in other words, their jurisdictions were prima facie strictly limited to causes or matters arising under and relating to Regional laws which appertain to matters not in the Exclusive Legislative List unless supplemented as provided under section 152 aforesaid (i.e. of the 1954 Constitution). The position did not really improve under the 1963 Constitution. Is the position the same under the 1979 Constitution I should think not. The Constitution should be read as a whole, and the provisions of related sections read together; when read as a whole, it will be seen that there are ‘built into’ the present Constitution (i.e. 1979 Constitution) provisions similar to those of section 44 of the Interpretation Act Cap. 89 aforesaid and section 3 of the Regional Courts (Federal Jurisdiction) Act Cap. 177 aforesaid. In other words, there is no need (as there was with regard to the previous Constitutions) to seek the aid of enactments de hors the current Constitution in order to establish jurisdiction in State High Courts in criminal and civil causes arising from Federal Laws (i.e. laws made by the Federal Legislature by virtue of its legislative competence under both the Exclusive and Concurrent Legislative Lists). These ‘built-in’ provisions of the 1979 Constitution are to be found in section 250 thereof.

Now, the State High Courts under the 1979 Constitution are provided with unlimited jurisdiction in matters set out in section 236 thereof i.e. “to hear and determine civil proceedings in which the existence or extent of a legal right, power or duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person” (italics mine). The issue of the existence or extent of a legal right, power liability, privilege, obligation or claim in any legal proceedings before a court when not based on the common law is always based on the provisions of an enactment; this may be a State or Federal enactment, and sometimes, in the latter case, on a matter within the exclusive competence of the National Assembly (i.e. in the Exclusive Legislative List) and also within its competence in the Concurrent List. Whatever the basis, it is my view, that it is in the intendment of the present Constitution that the resolution of such an issue must be within the competence or jurisdiction of State High Courts except in so far as the Constitution itself (or some other enactment) specifically places the resolution of such an issue outside the competence or jurisdiction of these courts; hence the “Supplemental Provisions” in section 250 of the 1979 Constitution. These supplemental provisions being within the framework of the organic law aforesaid and relating to State High Courts must, in my view, be read together with the provisions of section 236 which they are intended to supplement; and, read as a whole, they constitute the totality of jurisdiction invested, under the present Constitution in State High Courts. This, indeed, is intentional, and it is designed to avoid the situation which existed under the previous Constitutions. I am, therefore, of the view that a State High Court has trial and appellate jurisdiction in respect of issues which are, by law (i.e. the Constitution and the State High Court Law), ordinarily within its competence although arising under State Laws or Federal Laws (i.e. Laws relating to matters within the legislative competence of the National Assembly in the Exclusive and Concurrent Legislative Lists) unless specifically precluded by the Constitution or any other lawful enactment from exercising such jurisdiction. Two examples of such specific preclusion under the Constitution aforesaid are to be found in 237(2)(a) and 212(1). In passing, attention may be drawn to the language of section 8 of the Federal High Court Act 1973; which, by implication is intended to ‘kill’ or remove the jurisdiction which until its coming to force existed in the State High Courts in respect of issues arising not only under State but also Federal laws; that section reads:

“8. (1) In so far as jurisdiction is conferred upon the Federal High Court in respect of the causes or matters mentioned in the foregoing provisions of this Part the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal High Court, cease to have jurisdiction in relation to such causes or matters”.

It is to be remembered that although the Supplemental provisions of section 250 of the 1979 Constitution did not exist in the 1963 Constitution and (as amended by the Military Regime) current at the time of the promulgation of the Federal Revenue Court Decree (now Federal High Court Act), both section 44(1) and (2) of the Interpretation Act Cap. 89 of Vol. III of the 1958 edition of the Laws of Nigeria [as preserved by section 28 of the Interpretation Act 1964 and designated Law (Miscellaneous Provisions) Act 1964] as well as section3 of Regional Courts (Federal Jurisdiction) Act Cap. 177 of Vol. V of the 1958 edition of the Laws of Nigeria, were then in existence; and so, they conferred adequate jurisdiction (not under the then existing Constitution, as does the 1979 Constitution but by enactments de hors the 1963 Constitution) on State High Courts on matters and issues of law arising not only from State laws but also from Federal Laws (and this included matters referred to in section 8 of Act No. 13 of 1973 as “mentioned in the foregoing provisions”).

In conclusion, it is my view that it is the Federal High Court that has “limited jurisdiction “; limited in the sense that it has only so much of the jurisdiction conferred expressly by “existing laws” [see section 274(1) of the Constitution] which exist as Acts of National Assembly under sub-section (2) of section 230 aforesaid, and also under specific sections of the 1979 Constitution (Le. expressly prescribed thereunder) viz section 42 and 237(a) as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution.

With respect to section 230(1)(b) of the 1979 Constitution I have this to say. I take the view that the expression as “may be prescribed by the National Assembly” wherever it occurs in section 230 relates plainly to the future and I cannot agree with the interpretation which the Court of Appeal seeks to place on it by the judgments already referred to. Subject to the foregoing view, section 230(1)(a) as I see it, relates only to “revenue matters” of the Government of the Federation “as may be prescribed by the National Assembly” in the future.

Section 230(1)(b) aforesaid deals with “matters as respects which the National Assembly has power to make laws”; but it is to be noted that it speaks of “such other matters”. The principal question which arises is the construction of this sub-section of section 230 is: does the entire subparagraph relate to the present enactment (Le. in this instance, the Constitution) as well as to future enactments as it has been construed by the Court of Appeal, and also urged on us in this appeal The question arises because of the secondary or extended meaning ascribed to the word “prescribed” under both section 277 of the 1979 Constitution and section 18(1) of the Interpretation Act No.1 of 1964 and applied to the subparagraph by the Court of Appeal in Eze (Supra) and Tony Momoh (Supra). It is my view that the expression relates only to future enactments of the National Assembly; and sub-section 230(1)(b) must be so construed. The enactments envisaged under section 230( 1 )(b) must relate to items, in both the Exclusive and Concurrent Legislative Lists within the competence of the National Assembly, other than revenue matters within the contemplation of section 230(1)(a). Any other interpretation of section 230(1)(b) will, in my view, not only make the earlier provisions of section 230(1) and the latter provisions of section 230(2) unnecessary, it will lead to absurdity.

I am not unmindful of the rule of construction of statutes that words are not used in a statute without meaning; nor are they used tautologously or superfluously [see also Halsbury Laws of England 3rd edition vol. 36 paragraph 583]. But, there is the other rule of construction of statutes that words in an enactment are primarily used in their ordinary meaning or common or popular sense: and generally are used as they would have been ordinarily understood “the day after the statute was passed” [see also Sharpe v. Wakefield (1988) 22 Q.B.D. 239 at 241 and 242], unless such interpretation and/or construction would lead to manifest absurdity [see also Clerical Medical and General Life Assurance Society v. Carter (1889) 22 Q.B.D. 444 and 448], or unless the con requires some special or particular meaning to be given to the words [see also Stephens v. Cuckfield R.D.C. (1980) 2 Q.B. 373 at 382]. Therefore where a judge is of the opinion that the application of the words of an enactment in their ordinary meaning “would produce an absurd result which cannot reasonably be supposed to have been the intention of the Legislature, he may apply the words in any secondary meaning which they are capable of bearing” [see: CROSS: Statutory Interpretation (1981) 1st Edition p. 74 citing, in support, Lord Reid in Pinner v. Everret (1969) 2 All E.R. 257 at 258].

Such being the principles of construction of statutes I now turn to apply them to section 230(1) aforesaid. I see nothing in the expression-“as may be prescribed”-in section 230 with which we are concerned which leads me to think that the application of the ordinary meaning of “may be prescribed” in relation to matters which do not come within the embrace of sub-section (2) of section 230, will lead to absurdity; rather, it is the unbridled or unrestrained application of the secondary meaning of the expression (i.e. as may be prescribed) in relation to all matters “as respects which the National Assembly has power to make laws” that is bound to lead to absurdity. In the event, I arrived at the conclusion that the expression “in such other matters as may be prescribed as respects which the National Assembly has powers to make laws” in section 230(1)(b) can only mean that the Federal High Court will have additional jurisdiction in relation to issues or causes arising from such legislation as the National Assembly may at a future, date enact “as respects matters” in the Concurrent and Exclusive Legislative Lists.

The question which I have to consider next is whether the State High Court is precluded from exercising jurisdiction in respect of claims arising under banking transactions. And this is the second arm of the challenge to the decision of the Court of Appeal in the case in hand.

The Federal High Court Act No. 13 of 1973:

In order to answer effectively the last question I have posed in the preceding paragraph, it is necessary to examine the provisions of section 7(1)(b)(iii) of Part II of the Federal High Court Act No. 13 of 1973. Do provisions of that sub-paragraph mean that the Federal High Court has jurisdiction to entertain all claims pertaining to banking i.e. claims relating to all banking transactions If this is so, then the jurisdiction of State High Courts to deal with such matters must be ousted by virtue of the provisions of section 8( 1) of the Federal High Court Act. This Court by a majority judgment decided in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. Part 2 208 that the provisions in question have no such meaning. Learned Senior Advocate for the appellant has urged upon us that the minority and dissenting judgment in Jammal (Supra) has a meaning more in keeping with the law relating to the construction and interpretation of statutes. In keeping with the law relating to the construction and interpretation of statutes. The of section 7(1)(b)(iii) of the Federal High Court Act has already been set out in the lead judgment and I see no point in having the repeated. There is a rule of construction of statutes-the rule of noscitur a sociis-the full meaning of which is that a word is known by the company it keeps; in other words, the meaning of particular terms in a statute may be, and are quite often, ascertained by reference of the words associated with them in the statute. This rule, however, has no application to a statute the terms of which are too plain to admit of construction. It only applies where (as here, with reference to the word ‘banking’ in section 7 aforesaid- any particular word is obscure or of doubtful meaning, so that taken by itself the obscurity or doubtful meaning of the word may be removed by reference to associated words. The reason for adopting this rule is that unless the rule is applied, unintended breadth may well be given to an enactment by ascribing to the word, whose meaning is doubtful, a meaning out of con with those with which it is associated. In this particular sub-paragraph, and in the con of the appeal in hand, the word with a doubtful meaning is, as already pointed out, ‘banking’. Has it been used in that sub-paragraph as a noun or as an adjective The majority decision in Jammal (Supra) is that, in the con of the sub-paragraph, ‘banking’ is used as an adjective; the minority judgment regarded the word as a noun.

It was submitted to us by learned Senior Advocate on behalf of the appellants that, in view of section 18(3) of the Interpretation Act 1964, the words “or other fiscal measures” in the sub-paragraph should be construed disjunctively and not as implying similarity so that the word ‘banking’ should be given a wider construction. It was further urged that the use of the punctuation comma after the word banking lends support to this view; any other construction would, it was urged, lead to the inference that the separate words “banking, foreign exchange,” in the sub-paragraph have been unnecessarily used. Effect, it was further submitted, must be given to the punctuations. As regards the submission that the nouns “banking” and “foreign exchange” could not have been used unnecessarily in the way they have been set out in the sub-paragraph, it is well known-to use the language of Lord Diplock, L.J.-that “economy of language is not invariably the badge of parliamentary draftsmanship” [per Diplock L.J. (as he then was) in Letang v. Cooper (1965) 1 Q.B. 232 at 247]; and as regards the submission in respect of punctuation, it is well to remember that at common law, “in the interpretation of statutes, the punctuation thereof is not seriously regarded. It is a minor, not a decisive or controlling element, in the interpretation of a statute. Where the true meaning of the legislature is manifested, the courts will not permit punctuation to control, but will disregard the, punctuation of a statute or (even) repunctuate, if need be, to give effect to what otherwise appears to be its true meaning.” [See 50 American Jurisprudence 1st edition (1962) section 253, p. 249-250 (brackets and italics by me)] and see also Jammal (Supra) at 219 where-in the majority decision-“the comma” in the clause in the section concerned was notionally replaced with “or”. On the same issue, Halsbury Laws of England (Viscount Simond’s edition) (1961) Vol. 36 at para. 549 observes that “it appears to be established that punctuation marks are not to be treated as forming part of a statute, and they must be disregarded for the purpose of construing it . . .”. It is well known that in old statutes as engrossed on the Parliament Roll there was generally no punctuation and not “all the modem vellum prints of statutes are punctuated”, and accordingly, “punctuation is disregarded in the construction of statutes” and provisions which appear in them were read as though the punctuation were omitted. [see Maxwell: Interpretation of Statutes (1961) 5th edition pp. 13 and 14]. However, it must be remembered that although section 3(1) of our Interpretation Act No. 1 of 1964, for the first time provides a contrary view [the previous Interpretation Act Cap. 89 of the 1958 edition of the Laws of Nigeria, which updates all statutes which prior to 1958 relate to interpretation of enactments, not having any similar provisions ]-for it says that “punctuation forms part of an enactment and regard shall be, had to it in construing the enactment”-the effect of the provisions of section 1 of the 1964 Act [which specifically ordains that “the Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in . . . the enactment in question”] is that the rule at common law relating to punctuations in the construction of statutory enactments prevails on circumstances where on a proper reading of the provisions of any particular enactment it is clear that regard to punctuations therein will defeat the intention of the Legislature. Even where, by application of section 3(1) of the Interpretation Act 1964, regard is had to the use of punctuation in the construction of the provisions of an enactment such punctuation does not (as at common law) necessarily have a decisive effect on the interpretation thereof. The principal question and governing factor always still is: “What is the true meaning of the Legislature” as manifest in the provisions under consideration

It is my view that what applies in the construction of the sub-paragraph in question (Le. sub-paragraph (ii) of section 7(1)(b) of the 1973 Act aforesaid) is the rule of noscitur a sociis and that in the con of the subparagraph the societas to which the Socii (in the particular clause of the said sub-paragraph) belong are “fiscal measures” or “Revenue measures” Le. “Revenue Enactments.” Accordingly, the matters in respect of which jurisdiction has, by the sub-paragraph in question, been assigned to the, Federal High Court are those pertaining to banking (fiscal) measures, foreign exchange (fiscal) measures, currency (fiscal) measures, and not (repeat, not) matters pertaining to the ordinary banking transactions as has been claimed on behalf of the appellants in this appeal. I am of the settled opinion that not only has the Lagos State High Court jurisdiction to entertain the claims in the matter in hand, the Federal High Court has no jurisdiction whatsoever to entertain them.

For the reasons stated above and the additional reasons so lucidly and ably stated in the judgment of my learned brother Nnamani, J.S.C., I would dismiss this appeal and I endorse all the orders in the said judgment of my learned brother.

OBASEKI J.S.C. I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Nnamani, J.S.C., and as I find myself of the same opinion on all the issues raised before us in the appeal, I hereby express my concurrence in the judgment. The appeal fails and must be dismissed.

The issues of the extent of judicial power and the limit of the jurisdiction conferred on the Federal High Court by section 6(1) and section 230(1) of the 1979 Constitution raised by the appellants’ counsel being of great moment and having regard to the current of opinions that has flowed in the Federal Court of Appeal I deem it a pressing duty to add the following comments of mine to evince our oneness of mind on the issue and add to the weight of opinion expressed on the issues raised particularly the issues of the limit of jurisdiction of the Federal High Court under the 1979 Constitution. I shall deal first with judicial powers.

The submission of learned counsel to the appellant equating the jurisdictions of courts particularly the High Courts (the Federal High Court and States High Court) with the judicial powers of the Federation and the judicial powers of the States respectively, resourceful and ingenious as it is, is a nonsequitur and does not in my view have constitutional support. This is because section 6(6) of the 1979 Constitution made no distinction between the extent of the judicial powers of the Federation and the judicial powers of the State vested in the courts listed in section 6(5)(a-f) of the 1979 Constitution. It appears to me that within the limits of the jurisdiction of each court the judicial powers vested by the Constitution is the same whether it be the judicial power of the Federation or the judicial power of the State. There may be situations where judicial powers are made to appear synonymous with the jurisdictions granted to the courts, but it is not so (in this case) under the 1979 Constitution.

The contents of judicial powers have been examined by Lord Denning (delivering judgment of the Privy Council) in the case of Attorney-General of Gambia v. N’Nie (1961) A. C. 817 in relation to the judicial powers of a judge, in Australia by Griffiths, C.J., in Huddart Parker & Co. Pty Ltd. v. Moorehead (1909) 8 C.L.R. 330 in relation to the judicial powers of the Commonwealth, by the Privy Council in Shell Company of Australia Ltd. v. Federal Commissioners of Taxation (1931) A.C. 275 at 295; 47 T.L.R. 115 and by Latham, C.J. in the Australian case of Rola Co. (Australia) Pty Ltd. v. Commonwealth (1944) 69 C.L.R. 185 at 198.

In Attorney-General of Gambia v. N’Nie (supra), Lord Denning said at page 630 (on the subject of the judicial powers of a judge)

“It is quite apparent that the deputy judge can only represent the Chief Justice in the exercise of his judicial powers. He cannot represent the Chief Justice in the exercise of his administrative powers. Some of the powers of the Chief Justice are clearly judicial as when he sits in court to decide civil or criminal cases others are equally clearly administrative powers, as when he directs the times at which the offices of the court shall open; or appoints notaries public or makes rules of court (sic.). Into which of these categories do we place the power of the Chief Justice to suspend legal practitioners or strike them off the role of the court. Is this a judicial power or an administrative power, this necessitates an analysis of the nature of the power.

By the common law of England, the judges have the right to determine who shall be admitted to practise as barristers and solicitors; and as incidental thereto the judges have the right to suspend or prohibit them from practice. In England, this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court: and, for a much shorter time, so far as solicitors are concerned, to the Law Society.

In the colonies, the judges have retained the power in their own hands at any rate in those colonies where the profession is fused . . .

Their Lordships recognise that in some cons ‘judicial powers’ do signify the powers of a court which is to decide controversies between parties: as, for instance, the judicial powers of the Commonwealth [see Shell Company of Australia Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275, 295 47 T.L.R. 115]. But in this Ordinance, the phrase is ‘The judicial powers of the judge’. And it appears to their Lordships that in this con a judge exercises judicial powers, not only when he sits deciding suits between parties, but also when he exercises disciplinary powers appurtenant to the office of a judge. Suppose, for instance, that a judge, finding that a legal practitioner has been guilty of professional misconduct in the course of a case, orders him to pay the costs, as he has undoubtedly power to do so [see Myers v. Elman (1940) A.C. 282, 318, 56 T.L.R. 1771 (1939) 4 All E.R. 484 H.L.]. That would be an exercise of the judicial powers of the judge as much as if he committed contempt of court. Yet there is no difference in quality between the power to order him to pay costs and the power to suspend him or strike him off. And suppose that the judges of a colony do suspend a practitioner or strike him off, it is undoubtedly open to the practitioner to appeal to Her Majesty in Council and this necessarily imports that it is the exercise by the judges of a judicial power. For there is no right of appeal to their Lordships from the exercise of administrative power.”

Lord Sankey, L.C. (delivering the judgment of the Privy Council) in the case of Shell Co. of Australia v. Federal Commissioner of Taxation said at p.275:

“. . . What is judicial power Their Lordships are of the opinion that one of the best definitions is that given by Griffiths, C.J., in Huddart Parker & Co. v. Moorehead (1909) 8 C.L.R. 330, 357 where he says:

‘I am of opinion that the words judicial power as used in s.71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects whether the rights relate to life liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding or binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’ ”

Latham, C.J. in Rola Co., (Aus.) Pty Ltd. v. Commonwealth (1944) 69 C.L.R. 185 dealing with judicial power of a court) said at p. 198: “I am not satisfied that the words of Griffiths, C.J., (in Huddart Parker & Co. Pty Ltd. v. Moorehead (1909) 8 C.L.R. 330) are properly interpreted when it is said that they mean that a power to make binding and authoritative decision as to facts is necessarily judicial power. I direct attention to the concluding words ‘is called upon to take action’. In my opinion these words are directed to action to be taken by a tribunal which has power to give a binding and authoritative decision. The mere giving of the decision is not the action to which the learned Chief Justice referred. If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then but only then according to the definition quoted all the attributes of judicial power are plainly present. I refer to what I say more in detail hereafter, that the Privy Council in the Shell case (1931) A.C. 275 at 295 in which approval was given to the definition quoted, expressly held that a tribunal was not necessarily a court because it gave decisions (even final decisions) between contending parties which affect their rights. ”

The judicial powers vested in the courts listed in section 6(5)(a-t) of the 1979 Constitution by sub-sections (1) and (2) of section 0 of the 1979 Constitution must, in my view, mean the powers of the courts to give binding and authoritative decision in matters in controversy litigated before them and to take action to enforce the decision. The constitutional provisions to be found in section 251 for the enforcement of the decisions of the courts established by the Constitution is unique [see sub-sections (1), (2) and (3) of section 251 of the 1979 Constitution]. It is unique in that it makes enforcement mandatory and is directed to be carried out by all persons and authorities.

It is expressed in clear and unmistakable language and makes the decisions of the courts enforceable in all parts of the Federation by all persons and authorities and by courts with subordinate jurisdiction to each court down the ladder.

The argument that the courts established by the Constitution for the Federation and for the States must have their jurisdiction limited to the matters over which the legislative powers of the legislatures for the Federation and for the States can be exercised cannot find support in the Constitution. If that argument is accepted, it would mean that jurisdiction of Federal courts exercising the judicial powers of the Federation is coextensive with the matters in respect of which the National Assembly exercises legislative powers [see sections 4(2), 4(4)(a) and (b)], as prescribed in the Exclusive and Concurrent Legislative Lists while the jurisdiction of the State courts exercising the judicial powers of the State is coextensive with matters in respect of which the House of Assembly exercises legislative powers [see section 4(7)(a, b and c) of the 1979 Constitution]. The judicial powers vested in the courts be they Federal or State courts being the same in content the logical basis for that contention disappears.

The 1979 Constitution was not ordained by the National Assembly and the Houses of Assembly of the States but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the States High Court in exercise of their sovereign powers cannot there fore be limited other than as provided by the Constitution. The people of the Federal Republic being sovereign could invest the State courts with whatever jurisdiction exerciseable within the territorial limit of the State they desired and thought fit to grant within which the judicial powers can be exercised and that is exactly what they have done. Jurisdiction in the judicial sense, in my view, means the power of the court to hear (or try) a case. A court may exercise judicial power only within the authorised jurisdiction.

Jurisdiction:

With respect to the issue of jurisdiction, I entirely agree with my learned brother that the invitation of learned counsel for the appellants to overrule the majority decision in the case of Jammal v. African Continental Bank (1973) 1 All N.L.R. (Part II) 208 should be rejected as none of the arguments advanced by learned counsel to the appellants has been able to convince me that the reasoning of the majority decision holding that cases dealing with overdraft granted by banks are within the jurisdiction of States High Courts was erroneous. Their construction of section 7(1)(b)(iii) of the Federal High Court Act (formerly the Federal Revenue Court Decree, 1973) was that the jurisdiction conferred by that section in respect of banking is limited to banking measures. That construction, in my view, properly derives from the application of the rule of construction known as noscitur a sociis i.e. the meaning of a doubtful word may be ascertained by reference to the words associated with it.

As regards the jurisdiction conferred on the Federal High Court by section 230(1)(a) and (b) of the 1979 Constitution, I agree with my learned brother, Nnamani, J.S.C., as regard his construction of the section and the limits of the jurisdiction conferred by the section.

An examination of the provisions of the 1979 Constitution reveals that the constitution has been positive and clear, and loud not silent or secretive in the language used in granting jurisdiction to the courts it has created and the courts to be created by law passed by a State House of Assembly. The clear intention of the people of the Federal Republic of Nigeria does not warrant any circuitous reasoning to ascertain. This is clear from the various sections, namely, sections 4(8), 42(2), 236, 237, 242, 247(1) and (2) and 250 of the 1979 Constitution. It is the people of the Federal Republic of Nigeria who granted unlimited jurisdiction to the High Court they established for the State and not the people of the State.

Section 230(1)(a) and section (1)(b) mean expressly what they say and in my view, contemplate the express conferment of jurisdiction by the National Assembly (a) in such matters connected with or pertaining to the revenue of the Government of the Federation and (b) in such other matters as the National Assembly may prescribe as respects which the National Assembly has power to make laws. In other words, the discretion as to the jurisdiction the Federal High Court shall exercise is left to the National Assembly. Sub-section (2) of section 230 and section 231 appear to provide the bright lights by which the intention expressed in paragraphs (a) and (b) of sub-section (1) of section 230 can be seen. The restyling of the Federal Revenue Court as Federal High Court was dependent on the fact that the Federal Revenue Court Decree 1973 established the Federal Revenue Court and empowered it to exercise jurisdiction to which subsection (1) of this section 230 relates. Further, it puts a constitutional stamp on the jurisdiction conferred on the court by that Decree and any other law, by its expressed provision that ‘It shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law’.

It envisages that the jurisdiction for the hearing of any of the matters to which sub-section (1) of section 230 refers must have been conferred by law. Every word of sub-section (2) of section 230 is therefore, in my view, very important and meaningful. If sub-section (1)(b) gave the Federal High Court the jurisdiction the Federal Court of Appeal in Eze’s case (1982) 3 N.C.L.R. 259 (per Kazeem, J.C.A.) says it gave sub-section (1)(a) would be unnecessary and sub-section (2) would have been limited in its operation to restyling the Federal Revenue Court, the Federal High Court only, without proceeding to confer upon it the powers and jurisdiction conferred on the Federal Revenue Court by any law.

Section 231(1) is even more illuminating. It conferred on it the powers of the High Court of a State for the purpose of exercising any jurisdiction conferred on it by the Constitution or as may be conferred by an Act of the National Assembly.

The Exclusive Legislative List and the Concurrent Legislative List set out in Parts I and II respectively of the Second Schedule to the 1979 Constitution are prescribed by the Constitution and not by any law passed by the National Assembly to warrant the inference that the matters stated therein have been prescribed by the National Assembly. The lists are lists of matters as respects which the National Assembly has power to make law and not lists of matters prescribed by the National Assembly in respect of which the Federal High Court shall have and exercise jurisdiction.

The Constitution in sections 42, 230(2) and 237(1) expressly conferred jurisdiction on the Federal High Court for the hearing and determination of certain specific matters but an Act of the National Assembly conferring jurisdiction in accordance with the powers granted the Assembly in subsection (1)(a) and (b) of section 230 is yet to be passed.

In conclusion, I agree with my learned brother, Nnamani, J.S.C., that the jurisdiction of the Federal High Court as of today is limited to the jurisdiction granted in section 42, 230(2) and 237(1) and not co-extensive with all the matters itemised in the Exclusive and Concurrent Legislative Lists as regards which the National Assembly has power to make laws.

The appeal fails and I hereby dismiss it with costs to the respondents assessed at N300.00 in concurrence with my learned brother.


SC.106/1981

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