African Newspapers Of Nigeria & Ors V Federal Republic Of Nigeria (1985)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C 

The simple issue in this appeal is the jurisdiction of the Federal High Court to try the appellants on a three-count charge brought against them, in the said Federal High Court, by the Director of Public Prosecutions of the Federation, on 10th September, 1981.

The three counts were for :

(a) Seditious publication contrary to section 51 (1) (c) of the Criminal Code Act Cap.42;

(b) Publication of false news with intent to cause fear and alarm to the public, under section 59(1) of the Criminal Code, and

(c) Publication of false news likely to disturb public peace contrary to the same section of the Criminal Code.

The full charges with their particulars read: and thereby committed an offence punishable under section 51(1) (c) of the Criminal Code. Cap.42 Laws of the Federation of Nigeria.

COUNT 1

That you, (1) the African Newspapers of Nigeria Limited, (2) Banji Ogundele and (3) Felix Adenaike, on or about the 28th day of July 1981, at Lagos, in the Lagos Judicial Division of the Federal High Court, published a seditious publication in the Nigerian Tribune newspapers of July, 18, 1981, and more particularly in the publication captioned Shagari on tight rope after broken accord: Price for MPs increased to wit: The President, Alhaji Shehu Shagari, has personally taken over the wooing of Federal legislators in a desperate attempt to make good NPN promise to go it all alone , following the breakdown of the NPN/NPP accord.According to informed sources, President Shagari has, for a few days now, been inviting six members from each political party, soliciting for assistance in passing his bills.

In return, Mr. President has promised to site a Federal government project in any consenting member’s constituency.

Other terms include: N50, 000 cash; Cash benefit in foreign currency; N5, 000 monthly allowance; the provision of a Mercedes Benz car and not a 505 (Peugeot) saloon any more and a promise of granting between N100, 000 and N150, 000 loan to each member to build his own house in his constituency.

Our sources said that a PRP member of Aminu-Kano splinter group has, in fact, received his own booty of a blue Mercedes parked now in Victoria Island, the sources added that the car has not even been registered and thereby committed an offence punishable under section 51(1)(c) Of the Criminal, Code Cap.42, Laws of the Federation of Nigeria.

COUNT 2

That you, (1) African Newspapers of Nigeria Limited, (2) Banji Ogundele and (3) Felix Adenaike, on or about the 28th day of July, 1981, at Lagos in the Lagos Judicial Division of the Federal High Court, published a statement in the Nigerian Tribune Newspapers of July 28, 1981 and more particularly in the publication captioned Shagari on tight rope after broken accord: Price for MPs increased to wit:

The President, Alhaji Shehu Shagari, has personally taken over the wooing of Federal legislators in a desperate attempt to make good NPN’s promise, to go it all alone, following the breakdown of the NPN/NPP accord. According to informed sources, President Shaghari has, for a few days now, been inviting six members from each political party, soliciting for assistance in passing his bills. In return, Mr. President has promised to site a Federal government project in any consenting member’s constituency.

Other terms include: 50,000 cash; Cash benefit in foreign currency;

N5, 000 monthly allowance; the provision of a Mercedes Benz car and not a 505 (Peugeot) saloon any more, and a promise of granting between N100,00 and N150,000 loan to each member to build his own house in his constituency.

Our sources said that a PRP member of Aminu Kano splinter group has, in fact, received his own booty of a blue Mercedes parked now in Victoria Island. The sources added that the car has not even been registered. Which statement is likely to cause fear and alarm to the public knowing or having reason to believe that such a statement is false and thereby committed an offence punishable under section 59(1) of the Criminal Code Act, Cap.42 Laws of the Federation of Nigeria.

COUNT 3

That you, (1) African Newspapers of Nigeria Limited, (2) Banji Ogundele and (3) Felix Adenaike, on or about the 28th day of July, 1981, at Lagos in the Lagos Judicial Division of the Federal High Court, published a statement in the Nigerian Tribune Newspapers of July 28, 1981 and more particularly in the publication captioned Shagari on tight rope after broken accord: Price for MPs increased to wit:

The President, Alhaji Shehu Shagari, has personally taken over the wooing of Federal legislators in a desperate attempt to make good NPN’s promise to go it all alone, following the breakdown of the NPN/NPP accord.

According to informed sources, President Shagari has, for a few days now, been inviting six members from each political party, soliciting for assistance in passing his bills.

In return, Mr. President has promised to site a Federal government project in any consenting member’s constituency;

Other terms include: N50, 000 cash; N5, 000 monthly allowance; the provision of a Mercedes Benz car and not a 505 (Peugeot) saloon any more and a promise of granting between N100, 000 and N150, 000 loan to each member to build his own his house in his constituency.

Our sources said that a PRP member of Aminu Kano splinter group has, in fact, received his own booty of a blue Mercedes parked now in Victoria Island.

The sources added that the car has not even been registered. Which statement is likely to disturb the public peace knowing or having reason to believe that such a statement is false and thereby committed an offence punishable under section 59(1) of the Criminal Code Act, Cap.42 Laws of the Federation of Nigeria.

Dated this 10th day of September, 1981.

(Sgd.) Ben Nwazojie

Director of Public Prosecutions of the Federation.

Counsel for the 1st appellant, G.O.K. Ajayi, SAN, properly took out a summons in the Federal High Court to quash the indictment on the ground of jurisdiction. The same was done by J. Olufunmiwa Awopeju Esq. and Olaniwun Ajayi Esq.- both of Counsel-for the 2nd and 3rd appellants, respectively.

The summonses taken out on behalf of the 2nd and 3rd appellants were, in substance, the same as the one taken out for the 1st appellant which reads-

SUMMONS

Let all parties concerned attend the Honourable Chief Judge, or such other Honourable Judge as might be named by him, at the Federal High Court of Lagos, Queens Drive, Ikoyi, Lagos, on Monday the 21st day of September, 1981, at 9 o’clock in the forenoon, on the hearing of an application by the 1st Defendant herein, that the information in this matter be quashed on the ground of law, and for such further order or other orders that the Honourable Court may deem fit and proper to make.

Grounds:

(1) The Federal High Court has no jurisdiction in respect of the offences charged in the Information on the following grounds:

(i) The National Assembly/Federal Government has no power to create the offences charged in the Information;

(ii) In any case, jurisdiction to hear and determine offences in relation to the offence of Sedition has not been conferred upon the Federal High Court.

(2) Neither the Attorney-General of the Federation nor the Federal Director of Public Prosecutions on his behalf is competent to institute these proceedings.

PARTICULARS

The provisions of S.51 of the Criminal Code contained in the Criminal Code Act Cap.42 Laws of the Federation 1958 take effect as a State Law having regard to S.274 and the 2nd Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1979 and as such the Attorney-General to institute criminal proceedings in respect thereof.

Dated this 7th day of September, 1981.

This Summons was taken out by G.O.K. Ajayi & Co, Solicitors for the 1st Defendant.

G.O.K. Ajayi, San Counsel for the 1st Defendant, Unity House (14th Floor) 37 Marina, Lagos.

For Service on:

The Attorney-General of the Federation, Federal Ministry of Justice, New Secretariat, Ikoyi.

The hearing of the summons came before the Chief Judge of the Federal High Court, Anyaegbunam, C.J.

Ruling on the summons was given by the Chief Judge on 30th September, 1981 and he held that the Federal High Court was vested with jurisdiction to hear the charges and that the Attorney-General of the Federation was competent to initiate and undertake the criminal proceedings in the said Federal High Court.

The Appellants unsuccessfully appealed against the ruling to the Federal Court of Appeal (as it then was called) which Court unanimously (Kazeem, Mohammed and Kutigi, J.C.A.) held that the appeal lacked merit and dismissed it.

It is from that judgment of the Court of Appeal that the appellants have now appealed to this Court on identical grounds of appeal, which read:

(1) Error in Law

The Federal Court of Appeal erred in law in failing to refer to the Supreme Court the substantial questions of law raised as to the correctness of the decision of the Federal Court of Appeal in the case of Federal Republic of Nigeria v. J.O. Eze (1982) 3 N.C.L.R. 259; FCA/L64/81 delivered on 18th September, 1981 when:

(i) the issue as to the correctness of the decision in the said case was a substantial question of law raised before the Federal Court of Appeal;

(ii) Judges of the Federal Court of Appeal had expressed conflicting views on the effect of the decision in Eze’s case and two other cases decided by the same court:

(iii) One of the parties (the appellants) had requested the Federal Court of Appeal to refer the said question.

(2) Error in Law

The Federal Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to hear and determine the information filed when:

(i) The subject-matter thereof did not fall within the ambit of the provisions of S. 7(2) and (3) of the Federal High Court Act;

(ii) The Federal High Court had no jurisdiction to determine any criminal cause or matter not falling within the aforesaid S. 7(2) and (3) but which is within the legislative competence of the National Assembly:

The Federal High Court, after setting out in considerable details, the argument of Counsel before it, came to its decision that it had jurisdiction to entertain the case. In fairness to that court, the learned Chief Judge held himself bound (as he was bound to hold having regard to the principle of the binding force of judicial precedents) by the decision of the Court of Appeal, in Federal Republic of Nigeria v. Jonah Onyebuchi Eze (Trading under the name and style of J. O. Eze and Sons) (1982) 2 N. C. L.R. 259), handed down on 18th September, 1981. The Chief Judge (as he pointed out in his judgment) had held in Eze’s case that his court has no jurisdiction but his judgment was over-turned by the Court of Appeal, in its said decision that the Federal High Court had jurisdiction. He said:

This section came up recently for consideration before the Federal Court to appeal in the case of Federal Republic of Nigeria and Jonah Onyebuchi Eze (Trading under the name and style of J. O. Eze & Sons) FCA/L/67/81 unreported. It was a charge involving arms. The case initially came before me. On an objection raised by G.O.K. Ajayi, SAN on a question of the Federal High Court to adjudicate on counts pertaining to Arms and Ammunitions, I held that this court had no jurisdiction to try them. Section 230 of the Constitution notwithstanding. The Federal court of Appeal held otherwise.

The hands of the learned Chief Judge having thus been tied by the decision of the Court of Appeal, he therefore held that the Federal High Court had jurisdiction in this case. He concluded his judgment in these words:

have given due and careful consideration to all points skillfully canvassed by all counsel. They have been very helpful to me.

I am of the view that the Federal Attorney General is competent to prosecute this case in the Federal Capital which is de facto if not de jure in Lagos. Section 160 of the Constitution empowers the Federal Attorney General to initiate and undertake criminal proceedings against any person before any court in Nigeria, other than a court martial, in respect of any offence created by or under any Act of the National Assembly. He is competent to initiate the present criminal proceedings. It will be ominous to hold, as learned counsel for the defendant urged me to, that Federal Government is impotent to maintain peace, order and good government by a normal legal process in court. The points as postulated by counsel for the defendants amounts to this, that it is only the units States that can maintain peace, order and good government by due process of legal action in court whilst the inclusive government of the Federal Government remains helpless. I find myself unable to subscribe to it.

The Court of Appeal, for its part, held that Eze’s case was rightly decided and had to chide Mr G.O.K. Ajayi, SAN, for saying that Eze’s case was wrongly decided when, as they said, he never appealed against that judgment. At page 85 of the record the court took on Mr. G.O.K Ajayi in these words:

However, it is significant to note (1) that the learned counsel for the 1st appellant in this appeal also appeared for the appellant in Eze’s case, where he advanced identical submissions in that appeal as he had done in this case. he did not, as far as I can recall, refer to the case of The State v. Williams (Supra), let alone submit that the decision in that case had any bearing to the matter being considered in Eze’s case at that time. It is therefore surprising that he should now turn round to say that Eze’s case was wrongly decided when he has never appealed against it. (ii) That Section 7 of the Federal High Court Act, sections 230 and 250 of the Constitution were considered and duly construed in that decision. (iii) that the decision in Eze’s case had been approved by a majority of three to two of the Justices of this Court in Shugaba A. Darman v. The Federal Minister of Internal Affairs and Ors. (1982) 3 N. C. L. R. 915 and a majority of four to one in the Senate of the National Assembly v. Tony Momoh FCA/L/45/81 of 19th July, 1982. (iv) that even though the Supreme Court considered the scope of Section 7 (1) and (2) 8, and 63 (3) of the Federal High Court Act 1973 in The State v. Williams (Supra), the main issue for consideration in that case was whether the High Court of Lagos State or the Federal Revenue Court (as it then was) had jurisdiction to try offences to stealing and forgery based on matter relating to the customs or exchange control matters.

The Court concluded and held that:

In the circumstances, I am therefore of the opinion that the Attorney General of the Federation or any officer of this Department has power to prosecute for offences under Part 11 of the Criminal Code Act which includes section 51 (1)(c) and 59 (1) of the Criminal Code under which the appellants were charged.

The lead judgment which was written by Kazeem, J .C. A., (as he then was) was concurred with by the other two Justices of the Court of Appeal, Mohammed and Kutigi, J .C. A.

Appellants had applied to the Court of Appeal under S. 259 (3) of the 1979 Constitution for the Court to refer the issue of the contested jurisdiction of the Federal High Court to entertain the case, to the Supreme Court for determination. The Court refused to refer the issue to the Supreme Court on the ground that it had already held in the said Federal Republic of Nigeria v. Jonah Onyebuchi Eze (supra) that the Federal High Court had jurisdiction, and having so held, the Court could not refer the question to the Supreme Court by reason of the fact that in Adesanya v. The President of Federal Republic of Nigerian and Anor (1981) 1 All N.L.R. (Part 1) 1 the Supreme Court had held that where the Court of Appeal was minded to refer a question of law to the Supreme Court it should not proceed to decide the matter and then refer it, since once the matter has been decided, the procedure for bringing the matter before the Supreme Court would be by appeal. I should refer it without deciding on it. Counsel submitted that this line of argument, taken by the Court of Appeal, was a misinterpretation of the decision of the Supreme Court in Adesanya.

Further in their briefs, Counsel submitted that the Federal High Court had no jurisdiction to entertain criminal matters other than those arising out of matters set out in S. 7 of the Revenue Court Act by which the original jurisdiction of the court was founded and that the Federal High Court had no general criminal jurisdiction to try offences contained in the Criminal Code Act, whether or not their prosecution was initiated by the Federal Attorney-General.

I shall deal first with the issue of references. The whole of S.259 of the 1979 Constitution of the Federal Republic of Nigeria deals with References of questions of Law from subordinate Courts to the High Court; from the High Court to the Court of Appeal, and from the Court of Appeal to the Supreme Court under the conditions and circumstances laid down in that section. (sub section 3 of S. 259 deals specifically with references from the Court of Appeal to the Supreme Court and reads:

(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.

The two immediately previous Constitutions of Nigeria carried provisions which were in pari materia with those of Section 259 of the 1979 Constitution. The Nigeria (Constitution) Order in Council, 1960, provided for The Constitution of the Federation of Nigeria. Section 108 thereof provided for reference to the Federal Supreme Court of questions as to interpretation of that Constitution, from Courts subordinate to the High Court and from the High Court to the Federal Supreme Court. In identical terms, the Constitution of the Federation 1963, No. 20 of 1963, in its S.115 provided for references from subordinate Court to the High Court and from the High Court to the Supreme Court.

In all the provisions of the three Constitutions it was required that the matter for reference:

(i) must involve a substantial question of law

(ii) in which case:

(a) The court may refer the matter to the Supreme Court (or Federal Supreme Court under the 1960 Constitution), and

(b) The Court shall, if any party to the proceedings so requests, refer the matter to the Supreme Court.

There is no question that the matter of the jurisdiction of the Federal High Court challenged in these proceedings was a matter involving a substantial question of law, for, if the court had no jurisdiction then it was incompetent to embark upon the trial. The issue of what is a substantial question of law is, of course, for the court to decide and in doing so a guide may be gathered firstly from the formulation made by the Federal Supreme Court in Otugor Gamioba and Ors. v. Esezi II, The Onodje of Okpe and Ors. (1961) ALL N.L.R. 584 at 588 where the court stated that, We shall not attempt a complete definition of what amounts to a substantial question of law, but it must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced.;

Secondly, the question must be one which must necessarily be decided in the cause or matter and not one which may prove unnecessary to decide (Weed v.Ward (1889) 40 Ch.D. 555) and thirdly, the plaintiff, where it is a civil case, must have locus standi in the cause (Barrs and Ors. v. Bethel and Ors. (1981) 3 W.L.R. 874).

The present matter on appeal being one involving a substantial question of law, and the three parties in the case having applied through their Counsel for the matter to be referred to the Supreme Court, ought not the Court of Appeal to have acceded to their request The Court of Appeal answered this question in the negative by reason as the Court stated, of the decision of the Supreme Court in Abraham Ade Adesanya v. 1. President of the Federal Republic of Nigeria, 2. The Hon. Justice Victor Ovie-Whiskey (1981) 5 S.C. 112-a case in which the Senator plaintiff challenged the constitutionality of the appointment of the 2nd defendant (the Hon. Justice Ovie-Whiskey) by the 1st defendant (The President) as the Chairman of the Federal Electoral Commission. The main thrust of the argument in the case was on the locus of the plaintiff, who suffered no wrong, anticipated or threatened, by the appointment.

But the nature of the reference made by the Court of Appeal by which the matter came before the Supreme Court became a subject of deliberate comment. What the Court said about this was ventilated by Fatayi Williams, C.J.N., at pp. 120,122; and by Nnamani, J.S.C. at p.120.

At the hearing of the reference on 16th March, 1981, this Court pointed out to learned counsel to both the plaintiff and the defendants that the questions which the Federal Court of Appeal was asked to refer to the Supreme Court under section 259 (3) of the Constitution for determination had already been determined by that Court in the portion of their ruling quoted above.

Continuing at pages 122 to 124, the learned Chief Justice, stated, on the issue of reference of the substantial question of law to the Supreme Court by the Court of Appeal, as follows:

Before proceeding further, I would like to express my own views of the scope and extent of the provisions of section 259(3) of the Constitution and of the procedure laid down in Order 6 rules 1 and 3 of the Supreme Court Rules when any substantial point of law is being referred to the Supreme Court by a lower court by virtue of section 259(3). It cannot be disputed that what can be referred to the Supreme Court for a decision under section 259(3) of the Constitution is: any question as to the interpretation or application of the Constitution which involves a substantial question of law.

A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section. Once a decision on the substantial question of law is given by the Federal Court of Appeal, the only way to obtain a review of that decision is by way of appeal to the Supreme Court.

With respect to the procedure applicable to a reference made under section 259(3), the provisions of order 6 rules 1 and 3 to which I have referred earlier will apply. A close scrutiny of the provisions of rule 1 together with the format and working of Form 10 (the appropriate Form) referred to therein show that it is the question of law and not any answer given to such a question that is being referred by the lower court to the Supreme Court for determination. Admittedly, the provisions of rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding which a lower court, in the course of stating a case when making a reference to a higher court, can make is one of fact not law. In the same con, the words the opinion or decision (if any) of the court stating the case used in the penultimate sentence therein can only mean and do mean the opinion or decision of the court as to the facts. To construe the words otherwise would make nonsense of the word “question” used both in section 259(3) of the Constitution and rule 1 of Order 6 referred to above.

For the above reasons, I am of the opinion that the Federal Court of Appeal erred in first determining, as it did, the question of law which Chief Fawehinmi requested it to refer to the Supreme Court for determination.

The other learned Justices of the Supreme Court agreed with the opinion of Fatayi-Williams, C.J.N., on the point.NNAMANI, J.S.C., apart from merely agreeing, expressed this opinion on the issue at page 182. I have had the advantage of reading in draft the judgment just delivered by the learned Chief Justice of Nigeria and I agree with his conclusions on the main issue raised before us in this appeal. I particularly agree with him that the words of section 259(3) of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as the Constitution) are quite clear and that the Federal Court of Appeal was with all due respect in error in writing an opinion on the question of law it was to refer to this Court.

I share his view that opinion or decision (if any) of the court stating the case which appeal in Order 6 Rule 3 of the Supreme Court Rules, 1977 must be interpreted to limit the lower court to an opinion on facts and not law. (See Gamioba v. Esezi [1961] All N. L. R. 484 at 589). The rule is not without difficulty in interpretation it would not only be inconsistent with the provisions of section 259(3) but would make the reference pointless.

The above was the opinion and decision of the Supreme Court which the Court of Appeal interpreted to mean that once that Court had expressed an opinion, or given a decision, in any other case sometime in the past (such as in the Eze case) on an interpretation of s. 7 of the Federal Revenue Court Act, it could no more refer any subsequent matter to the Supreme Court on a substantial question of law on the said s. 7.

What the Supreme Court decided in Adesanya was simply this: that the Court of Appeal could not be referring a point of law to the Supreme Court for that Court, as the highest Court of the land, to pronounce on what the proper legal interpretation on an issue is, and then pre-empt the decision of the Court by giving, by itself, the very legal decision which it wants the Supreme Court to give. Once the Court of Appeal has given the decision required, what then would be the point in seeking, by reference, the final authoritative direction of the Supreme Court on the issue All that would be left thereafter would be for anyone who was dissatisfied with the said decision of the Court of Appeal to go on appeal, in the normal way, to the Supreme Court, and the Supreme Court would decide on the merits of the appeal, in its entirety, in the ordinary way.

That will of course defeat the purpose of a reference under S. 259(3) of the constitution which is a short, quick, inexpensive procedure when compared with the procedure of appeal, by which the Court below and the parties are able to secure the binding legal opinion of the highest Court of the land on a legal issue, without the necessity of a notice of appeal and the record of proceedings (except so much of it as the Court below may consider necessary for the reference) and without the attendant delays. By the reference procedure one, as it were, cleap frogs the procedural jungle of the appellate procedure, avoiding wading through its thick foliage underneath, before arriving at the savannah of the legal solution beyond. By that procedure, as pointed out by appellants Counsel, the effects of the principle of stare decisis are prevented from prolonging litigation.

The Court of Appeal (with the greatest respect to the distinguished panel of Judges who made the ruling) was in error when it held that because it had once before expressed its legal opinion on the interpretation of s.7 aforementioned, it was following the opinion of the Supreme Court in Adesanya (supra) in refusing a reference of the question of law involved, in this matter, to the Supreme Court. Adesanya (supra) was clearly misinterpreted and misapplied by the Court of Appeal. The fact that the Court of Appeal had ruled in Eze’s Case (supra) that the Federal High Court had jurisdiction to hear that case, (that is, Eze’s case) could not constrict the Court in referring, under s. 259(3) of the 1979 Constitution, the substantial question of law involved in the present case entirely different case to the Supreme Court for a determination. When the Supreme Court in the already quoted passage stated that:

A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section 9, the Court was referring to a decision in the particular proceedings in which the reference was made, and not to a decision taken in a different case between different parties. We now come to the second question in this appeal, namely, whether the Federal High Court had jurisdiction.

The jurisdiction of the Federal High Court had come for close examination by this Court in a number of cases. The starting point in a consideration of the jurisdiction of that Court must be with s.230 (1) of the 1979 Constitution. That section makes the jurisdiction subject to the provisions of the 1979 Constitution and grants it jurisdiction under 3 broad headings:

A.in such matter connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; (S.230 (1) (a);

B.such other jurisdiction as may be conferred upon it by an Act of the National Assembly (S.230 (i);

C.such other matters as may be prescribed as respects which the National Assembly has power to make laws(S.230(i)(b).

It is important to note the essential words in three broad headings. Under s.230 (1)(a) the essential words are:

as may be prescribed

Under S. 230(1) the essential words are:

as may be conferred upon it , while

Under S.230 (1) (b) the words are:

as may be prescribed.

Thus, the gravamen of the jurisdiction of the Federal High Court concerns matters connected with or pertaining to the revenue of the Government of the Federation as may be spelt out by the National Assembly. The essence is Revenue. Additional to revenue are:

(a) Such other jurisdiction which may be given to it by the National Assembly

and

(b) Such other matter which may be prescribed by the National Assembly from those matters over which the National Assembly has power to make laws.

It would then be seen that in the 1979 Constitution the jurisdiction of the Federal High Court was not left to be implied (unlike State High Courts) but was specifically made “to be conferred” or “to be prescribed”. The prescribed or conferred jurisdiction of the Court is as contained in the Federal Revenue Court Act, 1973, section 7 subsections (1) and (2) which became the existing Law under s. 274 of the 1979 Constitution. This Court has already held in Alhaji Zannar Mandara v. The Attorney-General of The Federation (1984) 4 S.C. 8 that sub-section (3) of the said S.7 has not created additional jurisdiction, or another head of jurisdiction different from those in sub-sections (1) and (2). The Supreme Court was, in that case, dealing with the jurisdiction of the Federal High Court with emphasis on its criminal jurisdiction.

Earlier, in Bronik Motors Ltd. And Anor v. Wema Bank Ltd. (1983) 6 S.C. 158,in a fairly detailed judgment, this Court examined the jurisdiction of that Court with emphasis on its civil jurisdiction and came to the decision that as against the High Courts of the States, it was the Federal High Court that had limited jurisdiction in the sense that:

(i) It had only so much of jurisdiction as conferred expressly by existing laws as defined in Section 274(1) of the1979 Constitution;

(ii) As contained in specific sections of the same Constitution, expressly prescribed (sections 42 and 237(2)(a); and

(iii) Such other jurisdiction as may be conferred on it by future legislation of the National Assembly under section 230 of the said Constitution.

Whatever doubts may have existed before, as to the limits of the jurisdiction of the Federal High Court civil or criminal (see: in addition to Eze’s case the lengthy discussion by the Court of Appeal in The Federal Minister of Internal Affairs and Ors v. Shugaba Adburrahaman Darman (1982) 2 N. C. L. R. 915) – have now been put to rest by those decisions of this Court in Bronik and Mandara (omni supra).

After mentioning those two decisions in his brief, Counsel for the respondent, Mr. A.A. Oladapo, Deputy Director of Public Prosecutions of the Federation, concluded his brief, saying:

In view of these weighty decisions of the Supreme Court in the above mentioned cases the Respondent admits that the issue in this appeal has been overtaken by these decisions and considers that it will be an exercise in futility to continue to press the matter further. I agree with him. Wise and experienced Counsel usually know when to throw in the towel and end the contest.

I must hold, and hereby hold, that for the foregoing reasons, the Federal High Court was not competent by reason of lack of jurisdiction to hear the charges brought against the appellants dated 10th September, 1981 herein before set out, and that the Court of Appeal erred in law to have held that that Court was possessed of the jurisdiction to hear the charges.

We had allowed this appeal on 17th January, 1985 and reserved the reasons for so doing for delivery to his date. It was for the above reasons that I allowed the appeal.

A. O. OBASEKI, J.S.C.: After hearing the submissions of counsel for the parties to this appeal on the 17th day of January, 1985, I (in concurrence with my learned brothers), allowed this appeal, struck out the charge, discharged the appellants and reserved my reasons for so doing. I now proceed to give my reasons. I shall be adopting the Reasons for Judgment just delivered by my learned brother, Aniagolu, J.S.C. However, for the purpose of emphasis, I would add the following comments and observations.

The information against the appellants laid before the Federal High Court by the Director of Public Prosecutions on the 10th day of September, 1981 charged the appellants in each of the three counts with the offence of (1) seditious publication contrary to section 51(1)(c) of the Criminal Code Act, Cap 42 Laws of the Federation 1958 as amended, (2) publication of false news with intent to cause fear and alarm to the public contrary to section 59(1) of the Criminal Code Act, Cap 42 Laws of the Federation 1958 as amended, and (3) publication of false news likely to disturb public peace contrary to section 59(1) of the Criminal Code Act, Cap.42 Laws of the Federation of Nigeria 1958 as amended. The three appellants by summons before their trial objected to the jurisdiction of the Federal High Court and prayed that the information be quashed. The grounds of objection stated were

(1) The Federal High Court has no jurisdiction in respect of the offences charged in the information on the following grounds;

(i) The National Assembly/Federal Government has no power to create the offences charged in the information;

(ii) In any case, jurisdiction to hear and determine offences in relation to the offence of sedition has not been conferred upon the Federal High Court.

(2) Neither the Attorney-General of the Federation nor the Federal Director of Public Prosecutions on his behalf is competent to institute these proceedings;

PARTICULARS

The provisions of section 51 of the Criminal Code contained in the Criminal Code Act, Cap. 42 Laws of the Federation 1958 take effect as a State law having regard to section 274 and the 2nd Schedule Part I of the Constitution of the Republic of Nigeria 1979 and as such the Attorney General of the Federation or the Director of Public Prosecutions is not competent to institute criminal proceedings in respect thereof.

After hearing submissions of counsel for the parties, the learned Chief Judge of the Federal High Court overruled the objections in a considered Ruling. Their appeal against the Ruling to the Court of Appeal was unsuccessful. They have now appealed to this Court. Counsel to the appellants, Messrs G.O.K. Ajayi, S.A.N., for the 1st appellant, J. Olu Awopeju for the 2nd respondent and Olaniwun Ajayi for the 3rd appellant filed their briefs of arguments of the appellants in support of their contention. Counsel for the respondent in reply duly filed the respondent’s brief of argument in which he conceded the issue of jurisdiction.

At the oral hearing, Mr. A.A. Oladapo, Federal Deputy Director of Public Prosecutions, confirmed that they were no longer contesting the issue of jurisdiction in view of the decisions of this Court in Bronik Motors Ltd. and Anor v. Wema Bank Ltd. (1983) 6 S.C. 158 and Alhaji Zannar Mandara v. The Attorney-General of The Federation (1984) 4 S.C 4 which settled the issue and dealt at length with the extent or limit of jurisdiction of the Federal High Court in civil and criminal matters. From the two decisions, it is crystal clear that the Federal High Court did not have jurisdiction to entertain the charges laid against the appellant. The Court of Appeal was clearly in error in holding that it had jurisdiction.

It is worthy of note that this appeal may have terminated in the Court of Appeal if the application for reference of a substantial question of Law, the question as to the interpretation of the provision of section 230 of the Constitution had been granted and the question referred for a decision of this Court. The ground on which the application was refused has been brought to the attention of this Court for comment. The Ruling of the Court of Appeal in part reads:

The question which this Court is being requested to refer to the Supreme Court in this matter for determination by virtue of the provisions of section 259(3) of the Constitution of the Republic is whether section 230 of the said Constitution operates to confer jurisdiction on the Federal High Court in all matters within the legislative competence of the National Assembly. This question has already been answered in the case of J.O Eze v. The Federal Republic of Nigeria FCA/L/67/81 . Moreover, this Court has also given a guideline in Tony Momoh’s case 1982 as to when this Court can be requested to refer any matter by virtue of section 259(3) of the Constitution to the Supreme Court among which is the fact that the issue to be referred has not yet been decided by a binding decision of this Court. That is not the case here.

Additionally, the important issue raised by all the appellants which deserves more elaborate treatment in this judgment is one that relates to reference to this court from the Court of Appeal under the provisions of section 259(3) Constitution of the Federal Republic of Nigeria 1979. This provision of the Constitution came up for examination in the case of Senator Abraham Ade Adesanya v. (1) The President of the Federal Republic of Nigeria and (2) The Hon. Mr Justice Victor Ovie- Whiskey (1981) 5 S.C. 112.

Learned counsel for the 1st appellant drew the attention of the Court to the view held by the Court of Appeal on the issue and submitted that the decision of this Court on the question of reference has been given an erroneous construction. The particular provision, i.e. section 259 (3) of the Constitution of the Federal Republic 1979 reads:

Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the Court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon appropriate.

This provision, in my view, is direct, straightforward, devoid of any ambiguity and expressed in plain simple language. Its construction must be based on the ordinary plain meaning of the words used.

To invoke the aid of the section, there must be a substantial question of law involved as to the application and interpretation of the Constitution. It is only after a decision on this question has been taken that the Court of Appeal may suo motu decide to make a reference of the question to the Court of Appeal. This is when none of the parties request or requests such a reference, the Court of Appeal is under a duty to refer the question to the Supreme Court for its decision and directions.

It does not matter if the Court of Appeal has held a view of the question in another matter disposed of by it on an earlier occasion.

So long as the Supreme Court has made no pronouncement on the question in any of the matters it has disposed of, the Court of Appeal is under duty to make the reference as the provisions are couched in mandatory terms.

The Adesanya case did not decide otherwise. This is plain from the lead judgment delivered by Fatayi-Williams, C.J .N. (as he then was). It should be borne in mind that in the Adesanya case the Court of Appeal decided the point before making the reference and this Court disapproved of such a procedure as it is definitely against the express provisions of the law and proceeded to hold that where the Court of Appeal has given its decision on the matter the question of interpretation or application of the Constitution in the matter can only be brought for consideration of the Supreme Court in an appeal properly brought before it. Hence, Fatai- Williams said in the Adesanya case (Supra) at pages, 122, 123 and 124;

”It cannot be disputed that what can be referred to the Supreme Court for a decision under section 259(3) of the Constitution is: any question as to the interpretation or application of the Constitution which involves a substantial question of law.

A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section. Once a decision on the substantial question of law is given by the Federal Court of Appeal, the only way to obtain a review of that decision is by way of appeal to the Supreme Court.

With respect to the procedure applicable to a reference made under section 259(3), the provisions of Order 6 Rules 1 and 3 to which I have referred earlier will apply…………. ………………………………………. Admittedly, the provisions of Rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding a lower court, in the course of stating a case when making a reference to a higher court, can make is one of fact, not law. In the same con, the words:

the opinion or decision (if any) of the court stating the case used in the penultimate sentence therein can only mean or do mean the opinion or decision of the court as to the facts. To construe it otherwise would make nonsense of the word question used both in section 259(3) of the Constitution and Rule 1 of Order 6 referred to above.”

It is therefore erroneous to interpret the judgment as limiting the right to have matters referred to matters in respect of which there has not been any previous decision. In other words, if the Court of Appeal had decided at the hearing the substantial point of law, it is restrained by Adesanya case from referring the substantial point of law to the Supreme Court but enjoined to hear the appeal and deliver its judgment thereon. What the Court said is that once a judgment has been delivered by the Court of Appeal, in a matter, the appropriate channel by which the matter can get to the Supreme Court is by way of appeal against that decision.

As earlier indicated, I had the privilege of a preview of the draft of the Reasons for Judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree with them and I adopt them as my own. It was for those reasons that I allowed the appeal of the appellants, struck out the charge and discharged the appellants.

D. O. COKER, J.S.C.: I have had the privilege or reading in advance the lead reasons for Judgment of Aniagolu, J.S.C. with which I fully agree. I have nothing useful to add.

S. KAWU, J.S.C.: On the 17th day of January, 1958, we allowed this appeal and reserved our reasons for doing so till today. I have had the advantage of reading, in draft, the reasons for the judgment just read by my learned brother, Aniagolu, J .S.C. I am in entire agreement with the said reasons and respectfully adopt them as mine.

C. A. OPUTA, J.S.C.: On the 17th January, 1985, when this appeal was called up for hearing, learned counsel A.A. Oladapo, Esq. D.D.P.P., for the D.P.P. of the Federation, indicated that he was not opposing the appeal. He had earlier on filed his brief of argument. In his conclusion in that brief Mr. Oladapo rightly conceded:

In view of these weighty decisions of the Supreme Court (viz. Bronik Motors Ltd. and anor. v. Wema Bank Ltd. and Mandara v. The Attorney-General of the Federation) in the above mentioned cases, the Respondent admits that the issue in this appeal has been overtaken by these decisions and considers that it will be an exercise in futility to continue to press the matter further.

In view of the fact that the Respondent was not opposing the appeal and in view of the other further weightier and more substantial reason, that the issue in the appeal, namely, the competence of the Federal High Court to entertain suits outside the compass and contemplation of section 7 of the Federal High Court Act No. 13 of 1973 had already been adjudicated upon by the Supreme Court, I allowed the appeal and indicated that I will give my reasons for allowing the appeal today, 4th April, 1985.

I have had the privilege of reading in draft the leading reasons for judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree with his conclusions.

Mr. Oladapo, learned counsel for the respondent, in the conclusion to his Brief, conceded, and quite rightly in my view, that no useful purpose will be served in pressing the matter further. The appellants were arraigned before the Federal High Court on three counts of:

(i) Seditious Publication contrary to section 51(1)(c) of the Criminal Code Cap. 42 of 1958.

(ii) Publishing a false statement with intent to cause fear and alarm contrary to section 59(1) of the Criminal Code.

(iii) Publishing a statement likely to disturb the public peace contrary to section 59(1) of the same Criminal Code.

In the Court of first instance, the trial court, learned counsel for the appellants by way of preliminary objection challenged the jurisdiction of the Federal High Court to try the appellants on criminal charges. Their objection was overruled and the appellants each pleaded Not Guilty to each count. The trial court relied on the decision of the Court of Appeal in Federal Republic of Nigeria v. Jonah Onyebuchi Eze (1982) 3 N.C.L.R. 259.

Before the actual trial began, the appellants appealed to the Court of Appeal Lagos Division on grounds alleging that the jurisdiction conferred upon the Federal High Court in criminal matters by section 7 (2) of the Federal High Court Act is confined and limited only to criminal causes and matters incidental to and arising out of matters listed in and encompassed by section 7(1) of the said Federal High Court Act. The Court of Appeal (Kazeem, J.C.A. (as he then was, Mohammed, J.C.A. and Kutigi, J.C.A. concurring) delivered its judgment on holding that the appeal lacks merit and that their judgment in Eze case supra was binding on them. Kazeem, J .C.A. (as he then was) in the leading judgment observed:

I am still firmly of the opinion that Eze case was rightly decided. Consequently I hereby hold that the Court has jurisdiction to try the offences under sections 51(1)(c) and 59(1) of the Criminal Code.

Mohammed, J .C.A. in his concurring judgment observed:

We are bound by our decision in the Federal Republic of Nigeria v. J. O. Eze F.C.A. / L/64/81 of 18/9/81 which has decided the issue of jurisdiction of the Federal High Court.

Kutigi, J. C. A. in his own concurring judgment commented:

I need hardly say that this Court is bound by its own decision unless and until it is reversed by the Supreme Court. So that the main plank of this appeal which relates to jurisdiction being substantially the same as that raised and decided by this Court in J. O. Eze v. The Federal Republic (F. C. A. /L/64/81 delivered on 18/9/81 (1982) 3 N.C.L.R. 295), this Court has no option but to follow that decision. It is not enough for counsel merely to tell us that the decision of this Court was wrong . . . . . . . . . . . . . . . .

I have on purpose set out in some detail the views of the Justices of the Court of Appeal about Eze’s case because there was an application made to the Court of Appeal by the appellants to refer the issue of the jurisdiction of the Federal High Court in criminal cases to the Supreme Court under Section 259, (3) of the Constitution of the Federal Republic of Nigeria 1979. The application was refused. The Court below relied on the judgment of this Court in Adesanya v. The President of the Federal Republic of Nigeria and another (1981) 2 N.C.L.R. 358. Mr G.O.K. Ajayi, S.A.N., although his appeal was not opposed, sought the indulgence of the court to address the court on the issue of References under Section 259, (3) of the 1979 Constitution and whether Adesanya’s case (supra) was applicable to the facts and circumstances of his application to the Court of Appeal for a reference.

I shall now deal with the jurisdiction of the Federal High Court to try the appellants on counts charging criminal offences unconnected, in any way, with the revenue of the Federation. The quarrel over the jurisdiction of Courts is by no means new but these quarrels have left certain significant beacon lights to guide the Courts when dealing with jurisdiction or the lack of it.

1. Judges ought not to encroach or enlarge their jurisdiction because by so doing the Courts will be usurping the functions of the Legislature-per Holt C.J. in Ashby v. White (1703) Lord Rayin 938.
2. Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged

Peacock v. Bell and Kendall (1667) 1 Sound 74.

3. Although the Courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation-Abbot, C.J. in The King v. Justices of Devon (1819) 1 Chit Rep. 37. Courts are creatures of Statutes and the jurisdiction of each Court is therefore confined, limited and circumscribed by the Statute creating it.
4. The Court is not hungry after jurisdiction-Sir William Scott. The Two Friends (1799), I.C. Rob. Ad Rep.280.
5. Judges have a duty to expound the jurisdiction of the Court but it is not part of their duty to expand it-Kekewich J. In re Montagu (1897) L. R. I. C. D. (1897), p. 693.
6. A Court cannot give itself jurisdiction by misconstruing a Statute-Pollock, B. in Queen v. County Court of Lincolnshire and Dixon (1887) L.J. (N.S.) 57 Q.B.D. 137.

Let me now examine how our courts dealt with the jurisdiction of the Federal Revenue Court. In the Federal Republic of Nigeria v. J. O. Eze and Sons (1982)3 N.L.R. 259, Eze was charged in the Federal High Court Lagos on four counts with offences, two under the Firearms Act and two under the Customs and Excise Management Act. The Federal High Court’s jurisdiction to entertain the charges was challenged by a preliminary objection. Anyaegbunam, C. J. ruled that he had no jurisdiction to try the two counts under the Firearms Act but that the Court has jurisdiction to try the other two counts under the Customs and Excise Management Act which obviously dealt with the revenue of the Federation. On appeal to the Federal Court of Appeal, Lagos Division, it was held inter alia.

(i) that section 239 (1) of the Constitution read along with section 7 of the Federal Revenue Court Act 1973 definitely conferred jurisdiction on the Federal High Court with respect to matters connected with or pertaining to revenue of the Government of the Federation.

(ii) That section 230 (1)(b) the 1979 Constitution extended the scope of the jurisdiction of the Federal High Court beyond those already provided for in section 7 of the Federal High Court Act, 1973.

(iii) That section 230 (1)(b) the 1979 Constitution of conferred jurisdiction on the Federal High Court to try causes with respect to all matters in the Exclusive Legislative List.

The Court of Appeal by thus construing the Constitution conferred jurisdiction on the Federal High Court beyond that obviously and expressly conferred on it by section 7 of the Act creating it, that is, the Federal High Court Act, 1973. The question then arises

Was the Court of Appeal right or wrong in its construction of section 230 (1)(b) of the Constitution

If wrong, then we come face to face with the problem that a court cannot give itself jurisdiction by misconstruing a Statute.

The next case which considered the jurisdiction of the Federal High Court was Bronik Motors Ltd and anor v. Wema Bank Ltd 1983 1 S.C. N.L.R. 296. In Bronik’s case, the suit was filed in the High Court of Lagos State. To that extent Bronik was not a direct frontal attack on the jurisdiction of the Federal High Court, it was rather a flanking movement. In that case, both in the trial Court and the Court of Appeal the jurisdiction of the Federal High Court were not an issue. That came incidentally and for the first time in the Supreme Court where the defendants/appellants filed inter alia a ground of appeal complaining 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 Lagos High Court.

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 (Sic) confers jurisdiction in respect of civil matters…………… connected with or pertaining to. . . . . . . . banking on the Federal High Court.

Here it is to be noted that one of the rations decidendi of Eze’s case (supra) was ”that section 230 (1) (b) of the 1979 Constitution conferred jurisdiction on the Federal High Court to try causes with respect to all matters in the Exclusive Legislative List. There was no appeal to the Supreme Court in Eze’s case. Bronik’s case (supra) thus gave the Supreme Court an opportunity to review the Court of Appeal’s decision in Eze’s case.

With respect to the jurisdiction of the Federal High Court, the Supreme Court in Bronik Motors Ltd. supra held that:

(i) 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 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) The expression As may be prescribed by the National Assembly where ever it occurs in Section 230 refers to the future and it means as the National Assembly may by legislation enact into law within its legislative competence.

(iii) Section 230 (1)(b) of the 1979 Constitution is an enabling provision not a self-executing one.

(iv) There is no jurisdiction in the Federal High Court except as enabled by section 230 ……………consequently, the Jurisdiction of the Federal High Court does not extend to all Federal causes or matters with regard to which the National Assembly is competent to make law.

It is trite law that the issue of jurisdiction can be raised at any time and at any stage of the proceedings. It can be raised for the very first time in the Supreme Court. That would not preclude the court (the Supreme Court) from considering it. The decision of this Court in Bronik Motors Ltd. (supra) regarding the jurisdiction of the Federal High Court very considerably diluted the Court of Appeal’s decision in Eze’s case leaving the Federal High Court only with the jurisdiction expressly conferred on it by section 7 of the Federal High Court Act 1973 and any other jurisdiction which may in future be conferred on it by any law validly made pursuant to section 230 (1)(b) of the 1979 Constitution. With regard to the present appeal, my only observation is that as far as I know, no law has been validly made conferring criminal jurisdiction on the Federal High Court to try cases of sedition under section 51 (1)(c) of the Criminal Code or Seditious Publication under section 59 (1) of the Criminal Code Cap. 42 of 1958.

The criminal jurisdiction of the Federal High Court was very extensively explored in Mandara v. Attorney-General (1984) 1 S.C.N.L.R. 311. There it was held that:

It is to be noted that in the present appeal, the appellants were also charged with offence under sections 51 (1)(c) and 59 (1) of the same Cap. 42 of 1958. In Mandara’s case (supra) Sowemimo C.J.N. made an incisive attack on any attempt to extend by misconstruction of the Constitution, the jurisdiction of the Federal High Court formerly known as and called the Federal Revenue Court.

As the former name of the Court is restricted, the Federal Revenue Court, although changed to Federal High Court, its jurisdiction as set out in subsection 1 of section 7 has never been altered. All criminal matters which that Court has jurisdiction to deal with under subsection 3 must be within the compass of section 1. The suggestion that the criminal jurisdiction of that Court is unlimited is fallacious and not supported by law……….. It is the duty of our Courts to observe the different jurisdictions which are imposed on those Courts……………..

Now subsection 1 of section 7 of the Federal High Court Act 1973 expressly and in no uncertain or ambiguous language conferred jurisdiction on the Federal High Court in civil causes and matters relating to the revenue of the Government of the Federation. In this sense, the Federal High Court corresponds with the Customs Court of the United States which in 1980 by the Customs Court Act of the same year was renamed the United States Court of International Trade. As regards the criminal jurisdiction of the Federal High Court, section 7 (2) of the Act creating it. The Federal High court Act-conferred on the Court very limited jurisdiction the jurisdiction and powers of the Court shall be in respect of criminal causes or matters arising out of or connected withthe revenue of the Government of the Federation as detailed in sections 7(1)(a), 7 (1)(b) and 7 (1)(c). Mandara’s case lay to rest the speculation that section 7 (3) of the Federal High Court Act created additional jurisdiction wholly unrelated to section 7 (2) of the same Act. In other words, section 7 (3) of the Federal High Court Act, cannot be construed in isolation. It merely amplifies subsection (2) which itself relates back to subsection 1. Section 7 therefore has to be read as a whole for each of its subsequent subsections is predicated on the preceding subsection.

Having reviewed what Mr Oladapo, D.D.P.P., in his Brief referred to as these weighty decisions namely Bronik Motors Ltd. v. Wema Bank (ibid) and Mandara v. Attorney-General (supra)it is easy to understand why the Respondent in this case did not oppose the appeal. To do so would have been in Mr. Oladapo’s words can exercise in futility. I entirely agree with him. I may only add by way of emphasis, that Judges have a duty to expound the jurisdiction conferred on a Court but it is not part of their duty to expand that jurisdiction beyond the line of demarcation drawn by the Statute creating the Court. The Court of Appeal, with the greatest respect, could not by misconstruing Section 230 (1)(b) of the 1979 Constitution, as it did in Eze’s case, confer on the Federal High Court extra and additional jurisdiction.

The next question to be considered is the refusal by the court below to make a reference of a substantial point of law to the Supreme Court when requested to do so by the appellants. The first ground of Appeal filed by G.O.K. Ajayi S.A.N. for the 1st appellant was-

The Federal High Court has no jurisdiction to try the appellant who was charged with offences of treasonable felony, incitement to mutiny and attempting to cause disaffection amongst members of the Armed Forces punishable under Sections 41 (a) 44 (a) 44 (b) and 46 (1) (a) of the Criminal Code Cap. 42 of 1958 respectively.

Difficult problems arise here.

1. When the request for a reference was refused, the appellants argued their appeals in the Court below (rather than withdrawing and appealing against the refusal.) Also the appeal to the Supreme Court has not been opposed. The question now arises is the refusal to refer the question of law to the Supreme Court under section 259 (3) of the 1979 Constitution still a lie issue or is it now merely an academic issue

A Court is bound by its own judgment until over-ruled by a higher court in the judicial hierarchy.

3. There was no appeal from the judgment of the Court of Appeal in Eze’s case.

On 15th June, 1982, Uche Omo, J.C.A. in Minister of Internal Affairs v. Shugaba Abdurrahman Darman (1982) 3 N. C. L.R. 915 at p. 922 expressed very strong reservations about (if not an outright rejection of) the soundness of the decision of court of Appeal in Eze’s case. He said inter alia: “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 when the Constitution was passed into law, the National Assembly had not begun functioning and the plain meaning of the words may be prescribed obviously refers to its role in future. It cannot be otherwise. Section 23 (1)(a) which uses the same phrase attaches it to the Legislative power in revenue matters a process not yet begun then. Any future interpretation, which is the plain meaning of the phrase, cannot possibly defeat the principle on which the Constitution is based or the obvious ends it is designed to serve. All that it required is for the National Assembly to prescribe by an Act the matters in respect of which the Federal High Court should exercise jurisdiction. It is this power of legislation that would appear to have been circumvented, and in my respectful view, unnecessarily so, by the decision under consideration” (Eze’s case).

Note: All one can say is that as far as the decision in Eze’s case is concerned, the Court of Appeal was a house divided against itself. This is not good enough. The Court of Appeal should have therefore seized any available opportunity to clear the air and remove any cobwebs around their decision in Eze’s case.

With the above as preamble, I will now consider section 259 (3) of the constitution dealing with References of questions of law.

Section 259 (3) of the 1979 Constitution of the Federal Republic of Nigeria stipulates:

Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal Court of Appeal and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such direction to the Federal Court of Appeal as it deems appropriate.

Refusing the request by learned counsel for the appellants for a reference to the Supreme Court, the Court of Appeal per Kazeem, J.C.A. (as he then was), Mohammed and Kutigi, JJ.C.A. Concurring had this to say:

The question which this Court is being requested to refer to the Supreme Court in this matter for determination by virtue of the provisions of Section 259 (3) of the 1979 Constitution of the Federal Republic of Nigeria is whether the provisions of S. 230 of the said Constitution operates to confer jurisdiction on the Federal High Court in all matters within the legislative competence of the National Assembly. This question has already been answered in the case of J. O. Eze v. Federal Republic of Nigeria FCA/L/64/81. Moreover, this Court has also given a guideline in Tony Momoh’s case (1982) as to when this Court can be requested to refer any matter by virtue of Section 259 (3) of the 1979 Constitution to the Supreme Court, among which is the fact that the issue to be referred has not yet been decided by a binding decision of this Court. That is, not the case here. Further in Senator Adesanya’s case (1981) All N.L.R., the Supreme Court has also given a warning that in any matter on which this Court is requested to refer to them for determination, it should not proceed to decide the matter. Afortiori, it becomes unnecessary in my view to refer the question again to the Supreme Court for determination once it has been previously decided by this Court. Section 213 (9) of the 1979 Constitution provides for the machinery of appeals from the decisions of this Court to the Supreme Court; and if the parties in Eze’s case were dissatisfied with the decision, they should have appealed against it long before now. I do not think an indirect way of appealing against that decision should be employed by way of reference as we are being requested to do now. For these reasons, I am of the view that is not a matter in which this Court can be requested to make reference to the Supreme Court. It is a matter for appeal . . .”

There is no doubt that the main issue in this appeal when it came before the Court of Appeal was the jurisdiction of the Federal High Court to try the appellants on criminal charges. That issue involved the proper construction of Section 230 (1)(b) of the 1979 Constitution. No one can deny that a question involving the jurisdiction of a Superior Court like the Federal High Court is a substantial question of law. The refusal of the Court below to make the reference sought was based not on any lack of merit of the request but on the fact that in another case, Eze’s case decided on the 18th September, 1981, (one year and five months before the present appeal on 15th February 1983) the Court of Appeal had construed Section 230 (1)(b) of the 1979 Constitution and that whether that decision was right or wrong the Court of Appeal was bound to maintain their position until reversed by the Supreme Court. As I noted earlier on in this judgment, the Supreme Court in Bronik Motors Ltd. (ibid) had decided that Section 230 (1)(b) did not confer additional jurisdiction on the FederalHigh Court in excess of what was conferred by Section 7 (1) and 7 (2) of the Federal High Court Act. It did not confer on the Court (as was supposed by the Court of Appeal in Eze’s case) jurisdiction………… to try causes with respect to all matters in the Exclusive Legislative List. Judged from this angle, the interpretation of Section 230 (1) (b) of the 1979 Constitution was no longer a live issue. It had already been decided by the Supreme Court.

From another angle however, the correct interpretation of the ‘warning’ given by the Supreme Court in Senator Adesanya v. President of Nigeria (1981) 2 N. C.L.R. 358 that Once a decision has been given on a substantial question of law, the same question cannot be referred to the Supreme Court by way of a reference under Section 259 (3) of the 1979 Constitution the only way to obtain a review of that decision is by way of appeal.

will always remain a live issue and an issue of great importance to the legal profession. In other words, does the Supreme Court ‘warning’ in Senator Adesanya’s case refer to decisions……. on a substantial question of law in the pending appeal before the Court of Appeal or to the Court of Appeal previous decision may be on the same or similar point being canvassed before it Mr Ajayi SAN submitted that the directive in Senator Adesanya’s case refers to a decision in the case being referred and not to a decision in a prior case not being referred to the Supreme Court.

In Senator Adesanya’s case (1981) 2 N.C.L.R. 358 at p., 369 Fatayi Williams, C.J.N. observed:

A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section.

Strictly speaking, on the 15th February, 1983, there was nothing the appellants in this case could appeal against, for no decision on the issue of the jurisdiction of the Federal High Court to try the appellants had been given. The decision in this case was given by the Federal Court of Appeal (as it was then called) on the 17th March, 1983 and it is because a decision had then been given that the appellants appealed to this Court. It is therefore my humble view that the decision referred to, in Senator Adesanya’s case, must be decision on the appeal pending before the Court and not a decision in another appeal which had been disposed of and in which the appellants asking for a reference were not parties. Since the only way to obtain redress is by way of appeal, it follows that the decision envisaged is one against which the party requesting the reference could appeal against. The present appellants had no locus standi to appeal against the decision in Eze’s case. Again since the facts of Eze’s case were definitely different from the facts of the appellants’case and since the charges in Eze’s case were also different, nothing prevented the Court below stating a case in spite of its decision in Eze’s case.

I am therefore in complete agreement with my learned brother Aniagolu, J .S.C.,that the Court of Appeal, with the greatest respect, misconceived and misapplied this Courts warning in Senator Adesanya’s case and was also wrong in refusing the request of the appellants to short circuit or frog leap the tedious and time consuming processes of appeal by a reference of the only point in issue the jurisdiction of the Federal High Court to try the appellants on criminal charges unrelated to the revenue of the Federation.

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SC.33/1984