Tuesday 1st August, 2023.
Posted by: Prince Ahmed Hassan (TOHA)
BY: PROF. MIKE A. A. OZEKHOME, SAN, CON, OFR, FCIArb, Ph.D, LL.M, LL.D, D.Litt.
INTRODUCTION
The first part of this piece was foundational: it discussed the import and
legal bases of jurisdiction as an incident of judicial power; how it is
determined and the highest institutional source of its expression – the
Supreme Court. We analysed the composition of the court and factors
which affect its jurisdiction.
In this piece, we go deeper into the constitution of the apex court in terms
of its membership and how it impinges on its jurisdiction. We then move on
to a discussion of how the subject matter of a case determines a court’s
jurisdiction and the conditions precedent to assumption of jurisdiction by a
court.
We then dwell, in ever greater detail, with the constitution of the apex court,
before going on to define ‘controversy’ and ‘dispute’; the latter, first
generally, before concluding with its meaning for the purpose of invoking its
original jurisdiction. Enjoy.
THE CONSTITUTION OF A COURT AND THE QUALIFICATION OF ITS MEMBERS MEMBERSHIP JURISDICTION
Where a court is not duly constituted as to the number and qualification of
the judges or justices to sit in adjudication over a matter, the court is
robbed of jurisdiction to adjudicate on that matter. For instance, the number
of Justices required to sit at the Supreme Court to hear a case to hear a
case that borders on its original jurisdiction is seven (7). Thus, where five
(5) Justices sit and adjudicate over a matter, the court will clearly be
without jurisdiction due to improper constitution. Again, assuming a seven-
man panel sits on the matter and one of the Justices is only thirteen (13)
years post-call at the Bar, the entire panel is disqualified and any exercise it
carries out will fail, as no amount of beauty in its adjudication can save it.
SUBJECT MATTER JURISDICTION
For a court to assume jurisdiction, the subject matter must be within its
jurisdiction. The Constitution or statute that creates the court prescribes the
subject matter to be adjudicated upon. Consequently, where a matter falls
within the subject matter of a court, the court is said to have a subject
matter or substantive jurisdiction; but where it falls outside the subject
matter, the court is said not to have jurisdiction. Any exercise thereto in
such a case shall be rendered in futility, as its decision shall be quashed on
appeal. For instance, a dispute between two States, or between a State
and the Federation is within the subject matter of the Supreme Court’s
original jurisdiction. Consequently, where a Supreme Court that involve
parties other than these, any exercise thereto shall be rendered in futility,
and any decision emanating from it shall also be quashed. The scenario
plays, out where a dispute which involves parties, over before which the
apex court has jurisdiction is filed before any other court.
CONDITIONS PRECEDENT TO ASSUMPTION OF JURISDICTION
For a court to properly assume jurisdiction, “due process” must have been
followed in initiating the same. However, we must bear in mind that there
could be a mere unsubstantial technicality that does not affect the
competence of the court, and a substantial technicality which affects the
competence of the action and robs the court of its jurisdiction. In the case
of CITY ENG. (NIG) LTD V. NAA, 1 the court held that there is a distinction
between mere or unsubstantial technicality in proceedings that are
competent and within the jurisdiction of a trial court, and a substantial
technicality which amounts to a condition precedent to the commencement
of an action and which renders the proceedings incompetent and
1 (1999) 11 NWLR (pt. 625) 80
manifestly or incurably defective. Interestingly, while the former may be
waived, the latter, as a general rule, may not be waived because
acquiescence does not and cannot confer jurisdiction to a court. For
instance, while a procedural rule of courts may be waived where it does not
occasion a miscarriage of justice, statutory provisions containing condition
precedent to the commencement of an action cannot be so waived.
To further appreciate this position, some examples of conditions precedent
which, if not complied with, may render proceedings incompetent and rob
the court of jurisdiction are, amongst others, as follows:
- Giving Pre-action Notice
- Limitation Act
- Where there is no service of the court process
- Locus Standi
- Geographical Territory
- Financial Limit.
THE JURISDICTION OF THE SUPREME COURT OF NIGERIA
The Jurisdiction of the Supreme Court of Nigeria is provided in Section 232
of the Constitution and the Supreme Court (Additional Original
Jurisdiction) Act, 2002. The jurisdiction may original/exclusive, appellate
or supervisory. However, this discourse focuses on the original/exclusive
jurisdiction of the Supreme Court, and the same is limited only to disputes
between States and the Federation. For purposes of clarity, it is necessary
to reproduce the provisions of the law – verbatim ad literatim.
Section 232 (1) of the 1999 Constitution, as amended provides thus:
“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.
(2) In addition to the jurisdiction conferred upon it by
subsection (1) of this section, the Supreme Court shall have
such original jurisdiction as may be conferred upon it by any
Act of the National Assembly. Provided that no original
jurisdiction shall be conferred upon the Supreme Court with
respect to any criminal matter.”
In A.G. OF THE FEDERATION V. A.G, OF ABIA STATE & 35 ORS, 2
Belgore, J.S.C (rtd); examined the provisions of Section 232(1) of the
1999 Constitution and held that:
- The sub-section presupposes that there must a dispute either between
the Federation and States or between States; and - The disputes must pertain to the existence of a legal right or its extent; it
must also relate to a question of law or a fact or both.
Section (1) and (2) of the Supreme Court (Additional Original
Jurisdiction) Act, 2002, provides thus:
(1) “In addition to the jurisdiction conferred upon the Supreme Court
of Nigeria by section 232 (1) of the 1999 Constitution, the
Supreme Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute between–
(a) the National Assembly and the President;
2 (2001) 11 N.W.L.R. (PL. 725) pg. 689 at 736, at [G-H]
(b) the National Assembly and any State House of Assembly; and
(c) the National Assembly and the State of the Federation,
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.
(2) Nothing in this Act shall be construed as conferring original
jurisdiction upon the Supreme Court with respect to any criminal
matter.”
DEFINITION OF TERMS “DISPUTE”
This takes us to the meaning of “dispute” generally. The word “dispute”
is not defined in our Constitution. However, the Courts have had cause to
pronounce on its meaning. In Webster’s New Twentieth Century
Dictionary (unabridged); the term “dispute” is defined as being
synonymous with controversy. It defines it as “an attempt to prove and
maintain one’s own opinions, argument or claims of another, controversy in
words.” The Black’s Law Dictionary, (5 th Edition), define ‘dispute’ as: “A
conflict or controversy; a conflict of claims or rights; an assertion of a right,
claim or demand on one side, met by contrary claims or allegation on the
other. The subject of litigation is the matter for which a suit is brought and
upon which issue is joined…”
“CONTROVERSY”
A dispute under Section 232(1) of the Constitution (the section dealing
with the original jurisdiction of the Supreme Court) must be one that is
appropriate for judicial determination. It includes suits of civil nature and
must raise an issue or question (whether of law or fact) on which the
existence or extent of a legal right depends. It must be real and substantial.
It must be definite and concrete. The word “controversy” was considered
in the case of AETNA LIFE INSURANCE COMPANY OF HARTFORD,
CONN V HARWORTH. 3 In that case, Chief Justice Hughes said: “a
controversy in this sense must be one that is appropriate for judicial
determination. A justiciable controversy is thus distinguished from a
difference or dispute of a hypothetical or abstract character, from one that
is academic or moot. … It must be a real and substantial controversy
admitting of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.”
In A.G. OF THE FEDERATION V. A.G, OF ABIA STATE & 35 ORS, 4 the
word ‘dispute’ was defined by my Lord S.M.A. Belgore, J.S.C., C.J.N. (as
he then was), as follows: “To my mind, a dispute involves acts of argument,
controversy, debate, claims as to rights, whether in law or fact, varying
opinions, whether passive or violent or any disagreement that can lead to
public anxiety or disquiet. I will not close the category of disputes.” 5 A
dispute is a conflict of claims or rights or demands on one side met by
contrary allegations on the other side.
3 300 US 227 57 S.CL. 461; at p. 464.
4 (2001) 11 N.W.L.R. (PL. 725) pg. 689 at 737
5 Suit No. S.C. 27/2010: (2011) 8 N.W.L.R. (Pt. 1248) 31 at 166-167
“DISPUTE” FOR THE PURPOSE OF INVOKING THE ORIGINAL JURISDICTION OF THE SUPREME COURT
In A.G ABIA v. A.G FEDERATION, 6 Tabai, J.S.C. held thus: “With respect
to the construction given to the word “dispute”, the opinion of the Court (Per
Belgore, J.S.C. as he then was) is quite apposite in determining the issue
of this Court’s jurisdiction in this case. On page 701 he said of “dispute”
thus: ‘…A dispute is a dispute whether apparent or lingering. It is
remarkable that in the counter-claims to the suit some States have
admitted there is a dispute. This Court in Attorney- General of Bendel State
V. Attorney-General of The Federation; 7 Attorney-General of The
Federation V. Attorney-General of Imo State, 8 set out clearly what is a
dispute to the extent of using authoritative English dictionary. To my mind,
a dispute involves acts of arguments, controversy, debate, and claims as to
rights whether in law or fact, varying opinions, whether passive or violent or
any disagreement that can lead to public anxiety or disquiet.’”
The same Belgore, J.S.C. (as he then was) had earlier in A.G, OF THE
FEDERATION v. A.G OF ABIA STATE, & 35 ORS 9 held, inter alia, that the
term dispute as used in section 232(1) of the 1999 Constitution “…Involves
acts of arguments, controversy, debate, claims as to rights whether in law
or fact, varying opinions, whether passive or violent or any disagreement
that can lead to public anxiety or disquiet.” (To be continued).
6 Suit No. SC. 73/2006: (2007) 6 N.W.L.R. (Pt. 1029) 200 at 219-220
7 (1981) 10 S.C. 1; (1982) 3 N.C.L.R. 1
8 (1983) 4 N.C.L.R. 178
9 (2001) 11 N.W.L.R. (PL. 725) 689 at 737
