(A Legal Opinion by Sylvester Udemezue)
Supposedly acting in obedience of an Ex Parte Order said to have been issued by Nigeria’s Code of Conduct Tribunal (CCT), directing the Federal Government to suspend the Chief Justice of Nigeria who is currently standing trial at the CCT on allegations bothering on late declaration and non-declaration of his assets and alleged breach of the Code of Conduct for Public Officers, the President of the Federal Republic of Nigeria had on 24 January 2019 suspended Hon Justice Walter Onoghen, CJN, and appointed Hon Justice Tanko Mohammed, JSC, as Ag CJN, pending the determination for the case against CJN Justice Onoghen. Angered by the development, the Senate of the Federal Republic of Nigeria on Monday, 28 January 2019, instituted an action at the Supreme Court of Nigeria “to seek judicial interpretation to Onnoghen’s suspension by President Muhammadu Buhari.” In the suit marked Suit No; SC/76/2019, the Senate prayed for the following orders of the Supreme Court:
“A declaration that the suspension, by the President, of Hon. Justice Walter Samuel Nkanu Onnoghen from his office as Chief Justice of Nigeria on or about January 25, 2019, without an address calling for the removal, supported by two-thirds majority of the Senate is in violation of section 292(1)(a)(i) of the constitution and therefore null and void.
“An order rescinding or setting aside the suspension of Hon. Justice Walter Samuel Nkanu Onnoghen from his office as the Chief Justice of Nigeria and restoring him to the said office. And
“An order restraining the defendants from continuing or repeating the violation of the Constitution of the Federal Republic of Nigeria and disregarding the powers of the Senate at the Federal Republic of Nigeria.”
LEGAL PROVISIONS ON REMOVAL/SUSPENSION THE CHIEF JUSTICE OF NIGERIA (CJN):
Section 292 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
in the case of Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate, Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct; and
in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.”
ORIGINAL JURISDICTION OF THE SUPREME COURT:
By virtue of section 233 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, the Supreme Court (which is the final Court of Appeal in Nigeria) has exclusive jurisdiction to hear and determine all appeals from the Nigerian Court of Appeal. But there are instances in which cases may be filed direct at the Supreme Court without going through any lower court. The Supreme Court is said to be exercising its Original Jurisdiction when a case is filed direct at the Supreme Court. The instances in which the Supreme Court is entitled to exercise its original jurisdiction are provided for in section 232 of the CFRN, 1999, section 20 of the Supreme Court Act, Cap S15, LFN 2004 and section 3 of the Supreme Court (Additional Original Jurisdiction) Act Cap. S16 LFN 2004. A community reading of the cited statutory provisions shows that the Supreme Court can have or exercise its original jurisdiction ONLY in the following instances:
A dispute between a State and the Federation;
A dispute between one State in Nigeria and another State or among states;
A dispute between the National Assembly of the Federal Republic of Nigeria and a State in Nigeria;
A dispute between the National Assembly of the Federal Republic of Nigeria and the President of the Federal Republic of Nigeria;
A dispute between the National Assembly of the Federal Republic of Nigeria and the House of Assembly of a State in Nigeria.
This list is exhaustive. In other words, there are no other instances in which the Supreme Court may exercise its original jurisdiction. Section 232 (1) of the CFRN, (as amended) provides as follows:
“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 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….”
Section 1 (1) of the Supreme Court (Additional Original Jurisdiction) Act, 2002 provides as follows:
“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–
the National Assembly and the President;
the National Assembly and any State House of Assembly; and
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.”
WHO MAY BE A PARTY TO A CASE BEFORE THE SUPREME COURT IN ITS ORIGINAL JURISDICTION?
Section 3 of the Supreme Court (Additional Original Jurisdiction) Act, 2002 (which an amendment of section 20 of the Supreme Court Act, Cap. S15, L.F.N. 2004) provides in any such suit by or against the National Assembly, the nominal party shall be “the National Assembly;” and that in any such suit by or against a State House of Assembly, the nominal party shall be “the Speaker of the State House of Assembly.”
MANDATORY CONDITION PRECEDENT TO NATIONAL ASSEMBLY INSTITUTING AN ACTION AT THE SUPREME COURT
The Schedule to the Supreme Court (Additional Original Jurisdiction) Act, 2002, Cap S16, LFN, 2004 provides as follows:
“Neither the National Assembly nor State House of Assembly shall institute or initiate legal proceedings under this Act except upon the resolution of the House passed by a simple majority of the members of that House present and sitting at the time the resolution is put to vote.
No legal proceedings shall be initiated or instituted by or on behalf of the National Assembly under the Act except upon the resolution which has been passed by both Houses of National Assembly by a simple majority of the members of each House present and sitting at the time the resolution is put to vote.”
LEGAL IMPLICATIONS OF THE ABOVE PROVISIONS:
It appears that the legal implication of the above provisions is as follows:
The Senate of the Federal Republic is not entitled to file a case direct at the Supreme Court. Only the National Assembly may file an action at the Supreme Court. The Senate is an arm (a branch) of the National Assembly of the Federal Republic of Nigeria. But the Senate is not synonymous with the National Assembly of the Federal Republic of Nigeria. Section 4 of the Supreme Court (Additional Original Jurisdiction) Act, 2002, Cap S16, LFN, 2004 defines the expression “National Assembly” to mean “the Senate and the House of Representatives established by the Constitution.” The Senate cannot represent the entire National Assembly.
All actions filed direct at the Supreme Court by the National Assembly of the Federal Republic of Nigeria must be commenced under the title, “National Assembly of the Federal Republic of Nigeria” as the nominal party/Plaintiff. Example, where the action is against the President of the Federal Republic, the heading/title of the suit shall be couched thus:
“The National Assembly of the Federal Republic of Nigeria ——- Plaintiff
The President of the Federal Republic of Nigeria ——————— Defendant”
What affects the Senate of the Federal Republic is the business of the Senate and not the business of the entire National Assembly of the Federal Republic of Nigeria. Thus, section 292 (1) (a) relates to only the powers of the Senate (not the entire National Assembly) to approve the removal of a judicial officer. Besides, a dispute between the Senate of the National Assembly and the President of the Federal Republic is obviously not a dispute between “the National Assembly and the President” as envisaged by section 1 (1) of the Supreme Court (Additional Original Jurisdiction) Act, 2002, Cap S16, LFN, 2004.
Both Houses of the National Assembly must pass a Resolution before the National Assembly can validly commence an action at the Supreme Court — From this provision, it is obvious that before the National Assembly of the Federal Republic of Nigeria can validly initiate any action direct at the Supreme Court under section 1 of Cap S16, LFN 2004, the both houses of the National Assembly must hold a meeting, and during such a meeting both Houses must pass a resolution supported “by a simple majority vote of the members of each House present and sitting at the time the resolution is put to vote.”
The National Assembly cannot commence an action at the Supreme Court if it has not held a meeting to pass the requisite resolution – The Schedule provides that the both Houses of the National Assembly must be physically in session, that is, “sitting at the time the resolution is put to vote.” Accordingly, no resolution of the National Assembly can be passed for this purposes unless and until both houses have had a physical meeting/sitting/session. It would be recalled that Vanguardngr.com had reported that the Senate pf the Federal Republic had announced that it would cut short its break and reconvene on Tuesday, 29 January 2019, to discuss and take a decision over CJN Onoghen’s suspension (https://www.vanguardngr.com/2019/01/suspension-of-onnoghen-senate-to-reconvene-on-tuesday/). The Senate later cancelled the scheduled plenary billed for Tuesday (29/01/2019), and decided to approach the Supreme Court over the matter. (https://thecitizenng.com/senate-approaches-supreme-court-to-reinstate-onnoghen-cancels-plenary-today/). The Clerk of the Senate, Mr Nelson Ayewoh, who announced the cancellation in a statement signed by him, did not give reasons for the action. He only explained that the federal lawmakers would resume on February 19, 2019. But the Special Adviser (Media) to the Senate President, Mr. Yusuph Olaniyonu, in a statement explained that the cancellation was due to the last-minute decision by the “Senate leadership” to seek judicial interpretation to Onnoghen’s suspension by President Muhammadu Buhari. (https://punchng.com/senate-asks-scourt-to-reinstate-onnoghen-says-buhari-cant-remove-cjn/). The following can be distilled from all the above:
The National Assembly never met to pass any resolutions to go to the Supreme Court over CJN Onoghen;
The Senate as a house never met over the issue. Even if the Senate had met, it would not have changed the situation because the entire National Assembly must authorize the action.;
The decision to institute the action at the Supreme Court was taken by the “Senate leadership” and not the entire Senate. The Senate leadership has no powers to authorize such action. Even the leadership of the entire National Assembly cannot authorize such action. Only a resolution supported “by a simple majority of the members of each House present and sitting at the time the resolution is put to vote” is capable of authorizing the National Assembly (not the senate) to institute an action at the Supreme Court of Nigeria. There is no evidence or record that such a resolution was passed before suit No SC/76/2019 was filed at the Supreme Court.
THE SENATE ACTED OUT OF ANGER
Anger can be blinding. This is why prolific writer Sue Cartwright who goes under the pen name Nikki Sex observed that an angry man rarely stops to let facts get in the way of his fury. It is therefore when one is angry that one is expected to exercise the most care, so as to not allow one’s anger push one into grave errors. As Chaim Potok (1929-2002), American Jewish author and rabbi once stated: “It is when you are angry that you must watch how you [act].” Yes, anger is a valid emotion. It’s only bad when it takes control of you that it makes you to do the things you don’t want to do. Senate had obviously allowed anger to take control, hence, its leadership acted hastily and in the process forgot what the law says on this matter with respect to Supreme Court’s original jurisdiction.
CONCLUSION & RECOMMENDATIONS
Without prejudice to what their Lordships of the Supreme Court may choose to decide in the present case, (because their decision is supreme/final), I respectfully submit, based on the above provisions, explanations and the reasons I have given, that the Supreme Court of Nigeria does not have ORIGINAL jurisdiction to hear or entertain Suit No SC/76/2019 as it is presently constituted. The appropriate Court to hear and determine the case at first instance is the Federal High Court under section 251(1) (p), (q), & (r)of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides as follows:
“Notwithstanding anything to the contrary contained in 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 and exercise jurisdiction to the exclusion of any other court in civil causes and matters– (p) [relating to] the administration or the management and control of the Federal Government or any of its agencies; (q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; (r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;”
Issues relating to whether or noit a court of law has jurisdiction are fundamental and lack of jurisdiction is fatal. See OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; see also OMOKHAFE v. Military Administrator (2005) 2 MJSC 173. In the Supreme Court case of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589, the Supreme Court had provided the following guide as to determining whether a court has jurisdiction. Hon Justice Vahe Bairamian (FJ) while delivering the lead judgment in that case stated as follows:
“Put briefly, a court is competent when:
it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
the subje`ct matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and
the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
(See http://www.nigeria-law.org/LawReporting/1962/Gabriel%20Madukolu%20&%20Ors%20v%20Johnson%20Nkemdilim.htm Accessed February 03, 2019)
However, in the case of Plateau State of Nigeria & Another v. Attorney General of the Federation & Another (SC/113/2004)  NGSC 39 (20 January 2006), a slightly similar issue arose for determination. The suit was commenced in the name of the name of “Plateau State of Nigeria” instead of in the name of “Attorney-general of Plateau State of Nigeria,” which is the appropriate nominal party for suits by or against a State. A preliminary objection was filed by the Defendants, praying the Supreme Court to strike out the case for want of jurisdiction. A major ground of the Preliminary objection was that “both plaintiffs herein are by virtue of (sic) respectively, have no requisite locus standi to institute this action.” The Supreme Court ruled as follows:
“The issue here pertains to the names by which the parties sued. Under section 20 of the Supreme Court Act, it is provided that a State shall sue or be sued in the name of the Attorney-General in respect of suits founded under section 232(1) of the Constitution. While section 3 of the Supreme Court (Additional Original Jurisdiction) Act, provides that a State House of Assembly shall institute or defend an action by the Speaker of the House of Assembly. I must say at once that both the Attorney-General and the Speaker are nominal parties only. The principal, real or substantive parties are the State and the House of Assembly, respectively. The question therefore is – is it proper for Plateau State of Nigeria not to have sued in the name of the Attorney-General or the House of Assembly not to have sued in the name of its Speaker? I believe the Plateau State Government as well the House of Assembly of Plateau State are the substantive or principal or real parties, while the Attorney-General and Speaker are merely nominal parties. This is therefore a mere irregularity. The irregularity is in my view clearly procedural which can and should be waived or overlooked. If the substantive or principal parties are here and they are, why bother about the nominal parties? The objection in my view therefore fails.”
It is humbly submitted that the Plateau State case is clearly distinguishable from the present (Senate’s) case. The Senate is not the proper nominal party for (or on behalf of) the National Assembly. Besides, the entire National Assembly has no interest in this matter because section 292 affects only the Senate and not the entire National Assembly. Furthermore, it must be pointed out that designation/title of the parties is not the only issue in the present case – Senate’s case. Fundamental issues of jurisdiction are raised, as discussed above. Moreover, whether or not there was proper authorization, issue of fulfilment of mandatory condition precedent before the action was commenced, as required by the Schedule to Cap S16, LFN 2004 is another major issue. A similar issue had arisen in the case of Plateau State of Nigeria v. AG, Federation (2006) 1 All N.L.R 304 and below is what the Supreme court had to say in resolution of the issue (per Kutigi, JSC):
“My conclusion therefore is that the first and second plaintiffs did not authorize this suit and no instruction was given for filing same at the time it was filed. Any retrospective approval given by Governor Dariye is unhelpful as you cannot put something on nothing. There was no suit filed on 24 June 2004 when one was purportedly filed. There was therefore nothing to ratify. This ground of objection therefore succeeds.
From this dictum by Kutigi, JSC, it appears that the present suit, Suit No SC/76/2019, may face the same fate as had befallen the case of Plateau State in 2006. There is no way the entire National Assembly can even try to rescue the case by perhaps convening a meeting and passing a resolution to ratify Suit No: SC/76/2019; such at ratification would be an exercise in futility.
Finally, I do not think section 16 of the Supreme Court Act, Cap S15, LFN, 2004, would apply in this case, because section 16 may only apply with respect to the Supreme Court’s “Jurisdiction to hear appeals in certain matters” Section 16 would, I think, not have any application when the Supreme Court is exercising its original jurisdiction. Also, it is respectfully submitted that section 17 (1) (b) of the Supreme Court Act, Cap S15, LFN, 2004, under which the Supreme Court shall “grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to” is not relevant to the present case because the provisions of section 17 may only apply “with respect to the exercise of the original jurisdiction conferred upon the Supreme Court.” In other words, it is only in respect of those cases in which original jurisdiction has already expressly been conferred on the Supreme Court, that section 17 may be looked at. This implies that if the Supreme Court does not have original jurisdiction under the relevant legislation, for this purpose, the Constitution and the Supreme Court (Additional Original Jurisdiction) Act, 2002, section 17 of the Supreme Court Act may not be considered. From all our discussions, above, it is clear that the Supreme Court does not possess original jurisdiction over disputes between the Senate of the Federal Republic and the President of the Federal Republic of Nigeria – see section 232, CFRN, 1999, section 1 and section 3 of the Cap S16, LFN 2004. The applicable legal maxim is Expressio Unius Est Exclusio Alterius (meaning, “the express mention of one thing is the exclusion of all the others”). In the English case of Dorval v. Dorval, 2006 SKCA 21 (CanLII), Justice Cameron explained the maxim thus: “… to express one thing is to exclude another.” Section 232, CFRN, 1999, and sections 1 and 3 of Cap S16 have expressly stated the only instances in which the Supreme Court may exercise original jurisdiction; the present case is impliedly excluded. Hence, it is humbly submitted that section 17 of Cap S15, LFN, 2004, should not have any application.
The Supreme Court may only have appellate jurisdiction over the such disputes (between the Senate of the Federal Republic and the President of the Federal Republic of Nigeria) through the Court of Appeal, by virtue of section 251 (1) (q), (p), & (r), CFRN, 1999. To leave no one in doubts, section 17 of the Supreme Court Act, Cap S15, LFN, 2004, provides as follows:
“With respect to the exercise of the original jurisdiction conferred upon the Supreme Court by subsection (1) of section 212 of the Constitution or which may be conferred upon it in pursuance of section 212(2) of the Constitution, the following provisions shall apply- (a) subject to the express provisions of any enactment, law and equity shall be administered concurrently; (b) in every cause or matter pending before it, the Supreme court shall grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided; (c) subject to the express provisions of any enactment, in all matters in which there was formerly or is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail; (d) in addition to any other powers conferred upon the Supreme Court by any enactment, the Supreme Court shall, have and may exercise all powers and authorities which are vested in or capable of being exercised by it under the Constitution of the Federal Republic of Nigeria; and (e) the Supreme Court shall observe and enforce the observance of customary law to the same extent as such law is observed and enforced in the Nigerian Courts.”
All in all, mine is a mere opinion, respectfully and disinterest offered, without prejudice to the wisdom of the Supreme Court of Nigeria, which has the final say. The Supreme Court is a court of law, possessing appellate, original and supervisory jurisdictions. It has also been described as a court of policy. I respect their Lordships. The ball is now in their court, to do justice to the case, according to law. We are bound by their decisions. “Let rule of law prevail” is my prayer always. As observed by His Lordship, Hon Justice Obaseki, JSC, in Military Governor of Lagos State v. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world, … which profess loudly to follow the rule of law, gives no room for the rule of self-help by force to operate.” I had referred to this dictum elsewhere – see https://www.lawyard.ng/legal-implications-of-the-two-thirds-majority-vote-required-to-successfully-remove-the-head-of-a-legislative-house-in-nigeria/.
God help Nigeria!