Attorney General Of Ondo State V Attorney General Of The (1983)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C

This action was filed in this Court with a statement of claim dated 8th April, 1983, pursuant to the Rules of the Supreme Court 1977, which deal with the original jurisdiction of the Court.

That jurisdiction is conferred upon the Supreme Court by section 212(1) of the Constitution of the Federation 1979 which I will hereinafter refer to in this judgment simply as “the Constitution”.

The action was brought by the Attorney General of Ondo State, on behalf of the Government of that State, against the Attorney General of the Federation and the Attorney General of all the other eighteen States in the Federation as representatives of the Government of the Federal Republic of Nigeria and the Governments of the States respectively. The Federal Electoral Commission (FEDECO) was also brought in as the 20th defendant.

The claim consists of a 33-paragraph statement of claim, which I do not consider necessary to set out in full herein for the purpose of the preliminary objection raised to the jurisdiction of the Court. It is necessary however to note that the statement of claim complains of the activities of the Federal Government which consist of interference with the constitutional and administrative functions of the Federal Electoral Commission in its charge of conducting the 1983 general elections to the offices of the President of the Federation, the Governors of the States and all the other elective offices in the country.

On 6th May, 1983, Mr. Fidelis Nwadialo, learned counsel for the 1st defendant, that is the Attorney General of the Federation, brought a motion seeking an order for the dismissal of the suit-

“on the grounds that, (a) this Court has no jurisdiction to hear the suit since it is not a matter which comes within the scope of the original jurisdiction of the Supreme Court as prescribed in section 212(1) of the Constitution of the Federal Republic of Nigeria 1979, and (b) the 20th defendant cannot be a proper party in an action brought under the afore-mentioned section of the Constitution”.

This motion was fixed for argument on 22nd June, and on that day the Court took submissions from some of the learned counsel in the case. There were subsequent adjournments but unfortunately as one of the members of the Court, our revered colleague, the Hon. Justice Chukwunweike Idigbe, of blessed memory, died before the Court could deliver a ruling in the application, the application had to be relisted again for fresh hearing before another panel of the Court.

On the 21st and 22nd September, the application for dismissal of the suit on the ground of lack of jurisdiction by the Court was heard.

Mr. Nwadialo contended that the claim was not one within the scope of the original jurisdiction of the Supreme Court. Further, the 20th defendant, the Federal Electoral Commission was not a proper party to the suit. Counsel said that the complaint of the plaintiff is the alleged interference with and usurpation of the duties of the 20th defendant in relation to the preparation for the conduct of the 1983 election and also wrongful compilation and revision of the register of voters.

Counsel submitted that the duties of organising and undertaking and supervising elections in this country are imposed solely and exclusively on the 20th defendant that is, the Federal Electoral Commission by virtue of paragraph 6(a) of Part I of the Third Schedule to the Constitution of the Federal Republic of Nigeria.

These duties, counsel continued, are owed to the citizens of Nigeria and not to the States. There has been no averment that the legal rights of Ondo State are involved in this case.

Mrs. Akinsanya, learned counsel representing Lagos State, submitted that the real grouse in this case has been directed against the Federal Government of Nigeria, and only indirectly against the 20th defendant, the Federal Electoral Commission. The legal right as shown in this case, is complaint by Ondo State against the Federal Government, in regard to the conduct of the 1983 election.

Mr. Okuwa, learned counsel representing Ogun State, agreed with the submissions of Mrs. Akinsanya.

For his part, Mr. Akinrinsola, learned counsel representing the plaintiff, submitted that this Court has original jurisdiction in this matter. He referred the Court to his case as contained in paragraphs 10 to 23, and paragraphs 25 to 33 of the statement of claim. The Federal Electoral Commission, counsel urged, is a creature of the Constitution as an independent and impartial functionary of the Federation and not in existence for a section of the country. Counsel further urged that in the execution of its constitutional functions, under the Constitution, the Federal Electoral Commission is not subject to the control or direction of any person or authority.

It was the Federal Government that placed order for ballot boxes without the knowledge and consent of the Federal Electoral Commission. The action brought by the plaintiff as formulated, Mr. Akinrinsola submitted, must be justiciable, and the plaintiff has capacity to bring the action. There is a vested legal right in the plaintiff to see that chaos does not result from an improperly conducted election.

Learned counsel then submitted that the 20th defendant is a necessary party to the case. This defendant is made a party, not because it is a State but because it is the constitutional agent of the entire Federation.

Mr. Nwadialo replied to all these submissions by saying that if there is going to be a legal right, it has to be confirmed by the Constitution.

Now, it seems to me that what has been raised in this preliminary objection is the legal right of the plaintiff in so far as the case he has brought is concerned. Does this dispute involve any question on which the existence or extent of the legal right of the plaintiff depend Again, and this is important, is Fedeco a State within the contemplation of s. 212(1) of the Constitution For except it is such a State the issue of the dispute involving any question on which the existence of a legal right depends, will be secondary.

That section provides-

“212(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

In determining the question whether this Court has original jurisdiction in a case or not the provision of s. 212 (1) of the Constitution must be examined solely in relation to the particular case before the Court to see whether or not the correct parties, as contemplated by the provision of the Constitution, are before the Court. If the parties before the Court in that particular case are not those contemplated by s. 212 (1) of the Constitution, there is hardly any necessity for the examination of other issues. And for this reason I will first examine whether or not the parties to the controversy in this case before this Court are parties who can enjoy the previsions of section 212(1) of the Constitution, and seek the original jurisdiction of this Court.

In the Attorney General of the Federation v. The Attorney General of Imo State & 2 others (1982) 12 S.C. 274, this Court had cause to examine the scope of section 212(1) of the Constitution. This Court as per Bello, J.S.C.., said, after quoting the provision of the subsection (p.305)-

“For the purpose of invoking the original jurisdiction of the Court under sub-section (1) of the aforementioned section, [that is, section 212 of the Constitution] paragraph (a) of subsection (1), of section 19 and section 20 of the Supreme Court Act, 1960 provide as follows

19. (1) This section shall to apply any cause or matter touching or concerning-

(a) any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends;

20. Any proceedings before the Supreme Court arising out of a dispute referred to in paragraph (a) of sub-section (1) of section 19 of this Act or against the Federation or a State shall–

(a) in the case of the Federation be brought in the name of the Attorney General of the Federation;

(b) in the case of a State be brought in the name of the Attorney General of the State.”

For the avoidance of doubt, and as it was done by this Court in that case, it may be necessary to distinguish the powers of the Attorney General to bring any proceedings before this Court in accordance with the provisions of section 20 of the Supreme Court Act with respect to the exercise of the original jurisdiction of this Court under subsection (1) of section 212 of the Constitution from the powers of the Attorney General under general public law to secure the enforcement of public rights.

Indeed the powers of the Attorney General to institute any civil proceedings, whether by a relator action or otherwise, when the action involves the rights and interests of the public which he considers necessary for preservation of law and order or the prevention of public wrongs, are quite different from the powers possessed by the Attorney General to institute proceedings under s. 212(1) of the Constitution. The fact that a suit falls within the category of interference with public rights and injury to the public does not ipso facto qualify it to be brought in the Supreme Court under its original jurisdiction is provided by section 212(1) of the Constitution.

For, as I said in the case of Attorney General of the Federation v. The Attorney General of Imo State and 2 Ors. (supra) and see p. 327 (ibid) the jurisdiction of this Court as prescribed under s. 212(1) of the Constitution is a special jurisdiction. That provision limits the jurisdiction to any dispute “between the Federation and a State or between States” and no more. It does not cover dispute between a State and a body, which is not a State, or between the Federation and a non-State.

In the United States of America the same attitude is taken in regard to the original jurisdiction of the Supreme Court of that country conferred upon that court by Article 3, section 2(2) of the United States Constitution. In Oklahoma ex rel. Johnson v. Cook (1938) 304 U.S. 387, the State of Oklahoma brought an action, invoking the original jurisdiction of the Supreme Court, by seeking to enforce the rights of depositors and creditors of an insolvent State bank (definitely not the rights of that State) against one of the shareholders of the Bank. The court in dealing with jurisdiction was of the opinion that under Article 3, section 2(2) of the United States Constitution, a State could invoke the court’s original jurisdiction only where the matter it has brought to the court directly affects the rights or interests of the State as a government. As to when such state as a State could invoke the jurisdiction, the court, in Oklahoma v. Atchinson, T. and S.P. Railway Co. (1900) 220 U.S. 277 at 289 held

“We are of the opinion that the words in the Constitution, conferring original jurisdiction on this court, in a suit ‘in which a State shall be a party’ are not to be interpreted as conferring such jurisdiction in every case in which the State elects to make itself strictly a party plaintiff on record and seeks not to protect its own property, but only to vindicate the wrongs of some of its people or to enforce its own laws or public policy against wrong doers, generally.”

I think the observations of Harlan J. in Lousiana v. Texas (1900) 176 U.S. I apply not only to the circumstances in the United States but also to circumstances in this country. I will respectfully adopt the dictum of the learned Justice of the Supreme Court when he said-pp.24-25

“When the Constitution gave this court jurisdiction of controversies between States, it did not thereby authorise a State to bring another State to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not affect the property or the powers of the complaining state in its sovereign or corporate capacity, but at most affect only the rights of individual citizens or corporations engaged in interstate commerce.”

Mixing the question of controversies with parties, Harlan J. said-

“Controversies in the clause extending the judicial powers of the United States to controversies between two or more States and to controversies between a State and the citizens of another State and the word party in the clause declaring that this court shall have original jurisdiction of all cases in which a State shall be a party, refer to controversies or cases that are justiciable as between the parties thereto, and not to controversies or cases that do not involve either the property or powers of the State which complain. . . . The citizens of the complaining state may, in proper cases, invoke judicial protection of their property or rights when assailed by the laws and authorities of another state; but their state cannot, even with their consent, make their case its case and compel the offending state and its authorities to appear as defendants in an action brought in this court.”

It seems to me therefore, that in examining the preliminary objection to jurisdiction raised by the 1st defendant in this case, and in seeking whether or not the right parties are before the court one should examine the content of the controversy that the plaintiff seeks for determination between it and the defendants, and see whether the two parties have this controversy as States within the contemplation of s. 212(1) of the Constitution.

It is true that this plaintiff in bringing the action has instituted it against the Federation and all the other States in the Federation with Fedeco as its last defendant. That may be merely in form. To my mind, the fact that the defendants or nearly all of them are the Federation and States is not by itself sufficient to ground jurisdiction. The question should be asked, what is the action about Does it in fact and in essence, constitute an action to be brought under the original jurisdiction of this Court” Indeed, in making this enquiry, only a literal interpretation needs be given to s. 212(1) of the Constitution. There is no need for liberal or restrictive interpretation. The subsection means precisely what it says-dispute between (1) the Federation and a State or (2) between States.

We therefore look at the statement of claim to find out the real parties to the action. Paragraph 33 of the statement of claim discloses the claim of the plaintiff. The paragraph seeks fourteen declarations, injunctions compelling orders and an order for substitution of Fedeco for the Federation. Out of these fourteen declarations, injunctions and orders, only one, that is-

“An order of perpetual injunction to restrain the Federal Government of Nigeria the Accountant General of the Federation acting as agents of the Federal Government and all other functionaries of the Federal Government whether by themselves their servants and agents or otherwise however from making any payments or doing any act or thing in purported performance of the contract mentioned in claims 1 and 2 of paragraph 33 above.”

is stricto sensu not a declaration, injunction or order against the FEDECO only. They are all declarations, injunctions and orders directed against FEDECO and not against the Federation or any State. Even the order for perpetual injunction, which I have set out above seeking to restrain the Federal Government etc., is in connection with “contract” which FEDECO has entered into or ought to enter into but which contract is being alleged to have been usurped by the Federal Government.

I have no doubt whatsoever that the action herein has no connection whatsoever with any real dispute between the plaintiff and the Federation or any other State in the Federation. It is a case between the plaintiff and the Fedeco, which is a body set up under the Constitution, independent of all governments (see Part 1 paragraph C of the 2nd Schedule to the Constitution). It cannot be said with any stretch of imagination, and it has never been so claimed however, that FEDECO is a State or could ever qualify to be a State.

A State, like the plaintiff/State may have genuine fears in a matter. It may in fact have a claim of right against some persons or bodies. But except that body is a State or the Federation it is idle hiding under s. 212(1) of the Constitution. A State is not a knight in shining armour undertaking the errands of just any of its citizens around. If it does, it may turn itself into the legendary Don Quixote who strikes at imaginary windmills. S. 212(1) of the Constitution has to be strictly observed before the original jurisdiction of the Supreme Court is invoked. If the original jurisdiction of the Supreme Court is to be loosely sought, the whole purpose of s. 212(1) of the Constitution is defeated. By the way the provision is worded, it leaves no room for any doubt whatsoever that a dispute between the Federation and a State or between two or more States is a sine qua non precedent to the invocation of the original jurisdiction of the Supreme Court.

The Supreme Court being the highest tribunal in the land is chosen by the makers of the Constitution because of its independence of both the Federal Government and the State Governments. If the States and the Federation are equal when it comes to the determination of a dispute between them before a tribunal, that tribunal must be one accepted by all parties to the dispute as independent of all the governments. This-highest confidence must not be tarnished by the extension of the jurisdiction, which is definitely limited by the provision, to cover bodies outside the purview of the provision.

I have said that the action in this case is in reality against FEDECO and I have also held that FEDECO is not a State. The action cannot be brought under the original jurisdiction of this Court. That should be the end of the matter in so far as this case goes and I think each case should always be examined on its own merit.

However, one of the questions that have been raised during the argument of this preliminary objection is whether FEDECO has been properly joined in this case.

I have given thought to whether or not this is an appropriate case to examine such question. I think the question would be better examined in a case where an action has primarily been brought against the proper parties and the question of joinder is a subsidiary issue. In this case, the defendants have been brought to the wrong court. That court has no jurisdiction over the issue as it has no jurisdiction over the defendants in the case. To consider the question of joinder of another party-the FEDECO-would appear to me to consider an academic question. This court has no jurisdiction for such exercise and must at all times resist the temptation.

This preliminary objection succeeds, and the action is hereby struck out for lack of jurisdiction. There will be no order as to costs.

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SC.22/1983