Hon. Ezeobi Okpala V. Prince Anthony Chizoba Ezeani & Ors (1999)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
This is an appeal against the decision of the Federal High Court, Enugu that it had jurisdiction to make an order of certiorari against the decision of an Election Tribunal set up under Decree No. 6 of 1996. The facts of the case are simple. At the March, 1996 Local Government election, the appellant lost to the 1st respondent. The appellant scored 53 votes while the 1st respondent scored 117 votes. The appellant filed a petition before the Election Tribunal. His petition was dismissed. The election of the 1st respondent was accordingly confirmed. The appellant appealed to the Local Government Election Appeal Tribunal which by a majority of 2 – 1 allowed the appeal and set aside the decision of Election Tribunal.
The 1st respondent at the tribunal thereupon went to the Federal High Court and claimed as follows:
“a. An order granting the applicant leave to apply for an order of certiorari to quash the proceedings and judgment of the two out or three members of the Local Government Council Election Appeal Tribunal which sat at Onitsha from 17th day of June, 1996 to 21st day of June, 1996, when the said tribunal was clearly out of time.
b. An order that the grant of leave operate as stay of the proceedings and execution of the judgments of the 1st and 2nd respondents delivered on 21st day of June, 1996.”
The above application was, of course, made ex-parte. It was granted by Kasim J. of the Federal High Court. The appellant thereupon filed an application in the court which prayed inter-alia as follows:
“For an order pursuant to Decree No.6 of 1996; Decree 107 of 1994, Federal High Court Act dismissing or striking out this action in limini (sic) on grounds of law namely:
a. That this court has no jurisdiction to entertain the application nor grant the prayers contained therein,”
The application was dismissed. The court held that it had supervisory jurisdiction which could be exercised over all matters within its territorial jurisdiction. Dissatisfied with this decision the appellant has appealed to this court. He has formulated one issue for determination vis:-
“Whether the Federal High Court has the jurisdiction to entertain an application for certiorari brought to quash the decision of the Local Government Council Election Appeal Tribunal set up under Decree No.6 of 1996.”
Arguing his lone issue the appellant contends that the Federal High Court has no jurisdiction to entertain an application for certiorari brought to quash the decision of the Local Government Council Election Appeal Tribunal established under Decree No.6 of 1996. Learned Counsel argues the lone issue under three heads vis:-
“a. Extent of the jurisdiction of the Federal High Court in an election matter, vis-a-viz Decree No.107 of 1993 and Decree No.6 of 1996;
b. Extent of the supervisory jurisdiction of the Federal High Court, in an election matter;
c. Whether there is any room left in Decree No.6 of 1996 for exercise by a court of supervisory jurisdiction.”
It is submitted under (a) above that it is settled law that the jurisdiction of the Federal High Court is limited. It possesses only so much of the jurisdiction as is conferred expressly on it by existing law or statute. It is admitted that its jurisdiction was expanded by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which modified section 230(1) of the 1979 Constitution. Counsel submits that an action for certiorari is a prerogative action quite distinct from one for declaration or injunction in matters affecting the validity of an executive or administrative action or decision of the Federal Government. The Local Government Election Appeal Tribunal established by section 36(1) – (5) of Decree No.6 of 1996 to perform judicial function does not come within the purview of Decree No.107 of 1993. Counsel refers to Madukolu vs. Nkemdilim (1962) 1 SCNLR 342; Abiola vs. Federal Republic of Nigeria (1995) 3 NWLR (Pt.382) 203 at 233; Alade vs. Alemuloke & Ors. (1988) 1 NWLR (Pt.69) 207 (1988) 2 S.C. (Pt. 1) 1 at 10 – 11. Counsel submits that the Federal High Court although not limited territorially as its jurisdiction spreads over the entire Federation, it is however limited as to the nature and character of the subject manner it has jurisdiction to adjudicate upon. He refers to Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 511 at 561.
On his second head as outlined above, learned counsel argues that the Federal High Court has no supervisory jurisdiction in matters in which it has no subject matter jurisdiction. Counsel concedes that the Federal High Court has powers to make an order removing proceedings, cause or matter from an inferior tribunal to itself in its supervisory capacity but such proceedings, cause or matter must be such as is within its specified jurisdiction. He refers to Bronik Motors Ltd. vs. Wema Bank (1983) 1 SCNLR 296; Tukur v. Government of Gongola State (supra).
Arguing his third heading, learned counsel submits that the exercise of supervisory powers by the Federal High Court or any other court is not contemplated by Decree No.6 of 1996. Supervisory jurisdiction, it is submitted, can only be exercised with respect to matters in which the High Court itself can exercise jurisdiction. Counsel relies on section 32(1) and section 36(1) and (5) of Decree No.6 or 1996. By section 43 of the Decree, even if the appeal tribunal erred in making an order, such an order is deemed validated.
In conclusion, it is submitted that the Federal High Court was never conferred with jurisdiction over election matters – see Resident Electoral Commission, Anambra State v. Nwocha (1991) 2 NWLR (Pt. 176) 732; Esewe v. Chief Nelson Cabe (1989) NEPLR 11 (1988) 5 NWLR (Pt.93) 134; Orubu vs. National Electoral Commission (1989) 2 NEPLR 24 (1988) 5 NWLR (Pt.79) 323. On being served with the appellant’s brief, the respondent failed to file a respondent’s brief. By way of ex abundante cautela the appellant filed a motion in this court to argue the appeal on the appellant’s brief in default of the respondent filing a brief. Leave was granted on 14/11/98. Despite the fact that the appellant’s motion and the order giving the appellant leave to argue the appeal on his brief only following the respondent’s failure to file a brief, the respondent still failed to react. The appeal was accordingly heard on 2/2/99 in the absence of the respondent or his brief. The appellant adopted his brief dated 25/9/96 and filed on 21/10/96. He urged the court to allow the appeal.
Once again, this appeal brings into focus the extent of the jurisdiction of the Federal High Court. So much has been written and so much pronouncements have been made both by the apex court of this land, the Supreme Court and by this court, yet the controversy over the extent of the jurisdiction of the Federal High Court does not seem to have laid itself to rest.
I shall, once again in this judgment, make yet another pronouncement on this rather vexed issue.
The controversy over the extent of the jurisdiction of the Federal High Court ought not to exist because the law on the matter seems to me to be clear. As a jurist of this land once put it, “….. we are not sailing without a compass on an uncharted sea …” in matters relating to the jurisdiction of the Federal High Court.
Let me start by saying that the issue of jurisdiction is fundamental in adjudication in our courts. Jurisdiction cannot be assumed by any court of this land. A court exercising jurisdiction must be able to show what law that gave it jurisdiction. It may be necessary to pry briefly into the origin and historical development of the Federal High Court to understand the extent of its jurisdiction. The court was created in 1973 and was known as the Federal Revenue Court. Its jurisdiction was as prescribed by section 7 of the Federal Revenue Court Decree No.13 of 1973. Its jurisdiction was as its name implies, mainly on the revenue and such like matters of the Federal Government. On the promulgation of the 1979 Constitution the continued existence of the court was entrenched in section 228 of the Constitution. Its jurisdiction was prescribed by section 230 of the said Constitution. Section 230(2) re-christened it as the Federal High Court. There came the Constitution (Suspension and Modification) Decree No. 107 of 1993. The second schedule of the Decree extensively modified section 230(1) of the Constitution and in effect modified the jurisdiction of the Federal High Court. The question which this appeal poses is whether any of the aforementioned laws gave the Federal High Court the jurisdiction to interfere in election matters under Decree No.6 of 1996. There is however another important law which is a constitutional provision. It is section 231 of the 1979 Constitution. It prescribes the “powers” as distinct from the “jurisdiction” of the Federal High Court. In view of the importance of this section of the Constitution, in this appeal I shall set it out here verbatim et literatem.
It provides:
“231(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.”
(2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the court more effectively to exercise its jurisdiction.” (underlining mine for emphasis).
I think that it is a well settled point of law that the relief claimed in a suit determines the jurisdiction of the court to adjudicate on the matter. See Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659 at 674; Azaka Izeikwe v. Nnadozie 14 WACA 361 at 363;Adeyemi v. Opeyori (1976) 9 -10 S.C. 31; Tukur v. Government at Gongola State (1989) 4 NWLR (Pt.117) 517. I may add that the nature of the defence may affect jurisdiction. Now, what is the relief claimed in the Federal High Court for which this appeal has come to this court. The relief is a motion filed in the said court for an order of certiorari to remove a matter adjudicated upon by the Local Government Election Appeal Tribunal under Decree No.6 of 1996 to the Federal High Court for the purpose of its being quashed. The claim has been set out earlier in this judgment. The question now is – has the Federal High Court the jurisdiction to perform any such function?
I shall now examine the law of the land to see if any law conferred on the Federal High Court the jurisdiction to entertain a prayer for certiorari to remove a decision of the Local Government Election Appeal Tribunal to it for the purpose of being quashed. By the law I mean the Decrees, Acts of the National Assembly and the 1979 Constitution. As I had stated earlier, when the Federal High Court was created in 1973 as the Federal Revenue Court, its jurisdiction was prescribed by section 7 of the Federal Revenue Court Decree No.13 of 1973. The jurisdiction was subsequently re-enacted by section 7 of the Federal High Court Act. Section 7(1) of the Act provides as follows:-
“7(1) The 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 and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act,
ii. any enactment relating to copyright, patents, designs, trade marks and merchandise marks; (d) of Admiralty jurisdiction.”
Under the 1979 Constitution the jurisdiction of the Federal High Court was prescribed by section 230. It 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 had power to make laws.
Section 231 deals with the powers of the court. I have already set it out earlier in this judgment. Then came the Constitution (Suspension and Modification) Decree No.107 of 1993 which drastically modified the jurisdiction of the Federal High Court as contained in section 230(1) of the Constitution. By the modification the Federal High Court was conferred with jurisdiction in all manner of things specifically spelt out in the Decree. From all the above, in no law, be it a Decree, an Act of the National Assembly or the Constitution is the Federal High Court given supervisory powers over matters outside its jurisdiction.
Now, Decree No.6 of 1996 made provisions for the Local Government election all over the Federation. By section 32 of the Decree, Local Government Council Election Tribunals were set up. They shall hear and determine “to the exclusion of any other court” any question whether any person has been validly elected as a member of a Local Government Council. Thus, in spite of the unlimited jurisdiction of a State High Court in civil matters, no State High Court shall interfere or meddle with the validity of election of any person as a member of the Local Government Council. Then, section 36(1) established the Local Government Election Appeal Tribunal. Section 36(5) provides:
“The decision of the Appeal Tribunal shall be final.”
Where an appropriate law or a Decree decrees finality in the decision of a court or tribunal the finality of the decision of the court or tribunal cannot be interfered with either by way of appeal or by the employment of a prerogative writ or proceeding as was done in the case in this appeal. Neither the Decree No.6 of 1996, nor any other Decree, nor any Act of National Assembly, nor the Constitution of the land gave the Federal High Court the jurisdiction to do what it purported to do in this matter.
I think the lower court fell into a misconception as to the correct interpretation of section 231 of the 1979 Constitution.
Section 230 of the Constitution prescribes the jurisdiction of the court while section 231 prescribes its powers while exercising its jurisdiction. The court cannot by section 231 do an act or entertain a cause which it has no jurisdiction to adjudicate upon. Section 231(1) begins by saying, and this is important.
“For the purpose of exercising any jurisdiction conferred on it by this Constitution …”
Thus, the court cannot in exercise of the powers conferred by section 231 do an act that is not in exercise of its jurisdiction. Power is not coterminous with jurisdiction.  As Obaseki J.S.C. observed in Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311 at 342.
“Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive … Jurisdiction is a power clearly visible to all beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.”
In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 562 Oputa, J.S.C. observed.
“Although ‘jurisdiction’ in its broadest sense will encompass ‘legal capacity’ ‘power’ or ‘authority’ of a court, in a narrower sense, there is a distinction between jurisdiction strictu sensu and power.
Thus, as enabled by section 230 of the 1979 Constitution the Federal High Court retained its jurisdiction “in such matters connected with or pertaining to the revenue of the Government of the Federation … ” and section 231 gave the Federal High Court, in the exercise of the limited jurisdiction conferred (that is by enabling section 230 and not by section 231) ‘all the powers or the High Court of a State.’ This means that although the Federal High Court and the High Court of a State have different functions, they have, acting within their respective jurisdictions, the same judicial powers. Section 231 did not however equate the jurisdiction of the Federal High Court with that of the High Court of a State, It did not elevate the Federal High Court to a court of unlimited jurisdiction.”
Thus, for the lower court to rely on section 231 of the 1979 Constitution to exercise a jurisdiction that it does not have is improper. Such a purported exercise of jurisdiction is null and void and of no effect.
I am constrained to restate here the extent, the boundaries and limits of the jurisdiction of the Federal High Court and the judicial powers conferred on the court by sections 230 and 231 of the 1979 Constitution and section 7 of the Federal High Court Act as stated by the Supreme Court in Bronik Motors Ltd. & Anor. v. Wema Bank Ltd, (1983) 1 SCNLR 296. I must add that to the limits of the jurisdiction of the court as stated in the above case must be added the modification of section 230(1) of the Constitution by Decree No, 107 of 1993, The Supreme Court arrived at the following conclusions:
“1. The Federal High Court has limited jurisdiction in the sense that it has only so much of the jurisdiction conferred expressly by ‘existing laws’ which exist as Acts of the National Assembly under section 230(2) and also under specific sections of the 1979 Constitution 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.
ii. Judicial power is not coterminous with ‘jurisdiction’ though the former embraces the latter but they are interchangeable.
iii. A court can only exercise judicial power within its authorized jurisdiction i.e. its authority to determine a particular case.
iv. Section 6 of the 1979 Constitution is not concerned with jurisdiction of courts. Consequently, the concept of reference to the judicial powers of the courts in determining the jurisdiction of the various courts vis-a- vis their power over State or Federal causes is completely extraneous to the spirit of the whole Constitution having regard to the various provisions of the 1979 Constitution conferring jurisdiction on various courts.
v. Section 230(1) (b) of the 1979 Constitution is an enabling provision not a self executing one.
vi. There is no jurisdiction in the Federal High Court except as enabled by section 230 of the 1979 Constitution in regard to:
a. Matters (connected with or pertaining to the Revenue of the Federation) which are prescribed by the National Assembly by specific legislation.
b. Matters (not connected with the Revenue of the Federation) which are prescribed either by the Constitution or the National Assembly. Consequently, the jurisdiction of Federal High Court does not extend to all federal causes or matters with regard to which the National Assembly is competent to make law.
vii. The jurisdiction of the State High Court under the 1979 Constitution is unlimited in all matters whether civil or criminal in both Federal and State causes within the State except as limited by section 230.
viii. Where both the State High Court and the Federal High Court exist in a State both have concurrent jurisdiction in matters pertaining to fundamental right.”
The lower court should not by virtue of section 231 of the 1979 Constitution
“expand its jurisdiction” – see Kekewich J. In re Montagu (1897) LR 1 C.D. 693 or be “hungry after jurisdiction” – see Sir Williams Scott, The Two Friends (1799) I.C. Rob Ad. Rep. 280.
For the above reasons or for a combination of some of them, I hold that the lower court has no jurisdiction to exercise supervisory powers by a prerogative order of certiorari to remove to it for the purpose of quashing the proceeding and/or a decision of the Local Government Council Appeal Tribunal set up under Decree No.6 of 1996. This appeal therefore succeeds and is allowed. The orders of the lower court made in this matter on 25th June, 1996 and 29th August, 1996 are hereby set aside. The appellant shall have the costs of this appeal fixed at N3,000 against the respondent.
Other Citations: (1999)LCN/0637(CA)