Attorney-general Of Kano State Vs Attorney-general Of The Federation (2007)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC.

In this Civil suit, Kano State of Nigeria as the plaintiff claims against the Federation of Nigeria by a Writ of Summons dated and filed the same day 13-2-2006 in the registry of this court accompanied by a statement of claim claiming a number of reliefs in paragraph 31 thereof as follows:- “31. WHEREOF the plaintiff claims as follows-

1. DECLARATION that the Kano State Hisbah Board Law No.4 of 2003 (hereinafter referred to as Law No.4) and the Kano State Hisbah Board (Amendment) Law No.6 of 2005 (hereinafter referred to as Law No.6) were regularly made by the Kano State House of Assembly, duly assented to by the Governor of Kano State, they are Legal, Lawful and Constitu-tional.
2. DECLARATION that Law No.4 and Law No.6 were made by the Kano State House of Assembly for peace, Order and good govern-ment of Kano State, the Laws are therefore valid, lawful, legal and constitutional.
3. DECLARATION that Law No.4 and Law No.6 aforesaid were made in accordance with the powers vested in the Kano State House of Assembly by the provi-sions of section 4(6) and (7) of the Constitution of the Federal Republic of Nigeria 1999.
4. DECLARATION that Law No.4 and Law No.6 were made by the Kano State House of Assembly and assented to by the Governor of Kano State in accordance with the provisions of section 100 of the Constitution of the Federal Republic of Nigeria 1999 and all other powers in that behalf.
5. DECLARATION that the defendant, his agents or privies have no power nor authority to declare as unconstitutional any of the provisions of Law No. 4 and Law No.6 without a court order or pronouncement to that effect .
6. DECLARATION that all the provisions of Law No.4 and Law No.6 are valid, extant and operate until otherwise declared.
7. INJUNCTION restraining the defendant by himself, his agents, or privies, in particular the Inspector General of Police from disturbing, stopping, disrupting or in any other manner stop the full operations of Law No.4 and Law No. 6 by taking any step whatsoever in the stoppage of the full implementation of the said Laws. PAGE| 2
8. INJUNCTION restraining the defendant by himself, his agents, or privies and in particular the Inspector General of Police from arresting, harassing or intimidate any person in the lawful execution of and/or implementation of the provisions of Law No.4 and Law No.6 respectively.
9. ORDER directing the defendant by himself, his agents or privies to stop forthwith any interference with the lawful implementation of the provisions of Law No.4 and Law No.6 and in particular to stop the arrest and or prose-cution of any official of Kano State Government in the lawful execution and implementation of the provisions of the said laws.
10. AND for such further or other reliefs as the court may find the plaintiff entitled to.”

The plaintiff was purported to have brought this suit against the defendant under the original jurisdiction of this court prescribed by section 232 of the 1999 Constitution of the Federal Republic of Nigeria. The suit came before this court for hearing on 29-6-2006 and was adjourned to 23-11-2006 for further hearing on which date judgment was reserved for delivery on 23-2-2007. However, on 8-1-2007 the parties were recalled by this court when their learned counsel were given the opportunity to address this court on whether the original jurisdiction of this court under section 232 of the 1999 Constitution was properly invoked by the plaintiff in this suit having regard to the nature of the dispute disclosed in the plaintiffs Writ of Summons and the statement of claim. In other words, this court suo motu raised the issue of jurisdiction and asked the parties through their learned counsel to satisfy it if this court has original jurisdiction to entertain the plaintiffs suit against the defendant having regard to the nature of the dispute disclosed in the statement of claim and the ultimate reliefs claimed in paragraph 31 thereof, which I have earlier in this judgment quoted in full. In the learned counsel’s addresses on this issue of jurisdiction, while learned counsel to the defendant Mrs. A.O. Mbamali, the Director of Civil Litigation from the Federal Ministry of Justice for the defendant agreed that this court has no original jurisdiction to entertain the plaintiffs suit, Alhaji Yusuf O. Ali, learned Senior Counsel for the plaintiff insisted that this court has original jurisdiction under section 232 of the 1999 Constitution to hear and determine the plaintiffs claims in the suit. In his argument in this respect, learned counsel to the plaintiff referred to the provisions of section 232 (1) and (2) of the 1999 Constitution and observed that the key word in sub-section (1) of the PAGE| 3 section is the word ‘dispute’. On the existence of this dispute between the Federation and Kano State, the learned senior counsel referred to paragraphs 14 and 18 of the plaintiff’s statement of claim at pages 5 and 6 of the plaintiff’s brief of argument and also paragraphs 20, 29 and 30 of the statement of claim at pages 7 and 8 of the plaintiff’s brief of argument as disclosing dispute between the plaintiff and the defendant to justify this court exercising its original jurisdiction to entertain the plaintiff’s suit. This position is particularly so insisted the learned senior counsel, who relied on the cases of Attorney General of Lagos State v. Attorney General of the Federation (2004) 18 NWLR (Pt. 904) 1 at 125-126 (2004) 9 – 12 SCM, (Pt. 1) 1 and Attorney General Anambra State v. Attorney General of the Federation (2005) 2 NWLR ($.931) 572 at 625 (2005) 5 SCM, 1 and the documents tendered and received in evidence in support of the plaintiff’s case. The learned Director of Civil Litigation in the Federal Ministry of Justice for the defendant is however of the view that this court has no jurisdiction under section 232 (1) and (2) of the 1999 Constitution to entertain the plaintiffs suit as disclosed in the Writ of Summons and the statement of claim. Learned counsel pointed out that in the action instituted by the plaintiff, there is no dispute between the Federation and Kano State if the statement of claim is closely examined without looking at the statement of defence or the briefs of argument filed by the parties. Citing the cases of Attorney General of the Federation v. The Attorneys General of 36 States of the Federation, (2001) 6 MJSC 89 also reported in (2001) 7 SCNJ 1, (2001) 9 SCM, 45 and Attorney General of Anambra State & Ors. v. Attorney General of the Federation & Ors (1993) 6 NWLR (Pt.302) 692 at 699 and paragraphs 12-17 of the statement of claim, learned counsel emphasized that in determining the issue of jurisdiction, only the statement of claim is relevant. Referring to the facts averred in paragraphs 12-17 of the statement of claim, the learned defendant’s counsel observed that from the letters changed between the Federal Government and the Kano State Government on the subject of the Hisbah Board Law, there was no dispute between the parties; that even on the facts averred in paragraph 19 of the statement of claim heavily relied upon by the plaintiff on the conduct of the Inspector General of Police whom the plaintiff regarded as agent of the defendant, learned counsel submitted that the action of the Inspector General of Police was within his own powers as conferred by section 215 of the 1999 Constitution. Concluding her submission on this issue of jurisdiction, learned defendant’s counsel urged this court to strike out PAGE| 4 the plaintiff s action for lack of jurisdiction to entertain it as the dispute disclosed from the statement of claim does not go beyond the Inspector General of Police and Kano State Government. The Law is well settled that where a court has no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility. In the celebrated case on the subject of jurisdiction and competence of court of Madukolu & Ors v. Mkemdelim & Ors (1962) 2 SCNLR 342 (1962) NSCC 374; (1962) 1 All NLR 587; Bairamian, F.J. stated the law at page 595 as follows:- “Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put it briefly, a court is competent when – (1) it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature of the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” Once there is a defect in competence, it is fatal as the proceedings are nullity. See Ojo-Ajao & Ors v. Popoola Ajao & Ors (1986) 5 NWLR (Pt.45) 802 and Attorney-General Anambra State v. Attorney General of the Federation (1993) 6 NWLR (Pt.302) 692. Now section 232 (1) and (2) under which the plaintiff sought to involve the original jurisdiction of this court to entertain and determine the plaintiff’s action against the defendant reads – “232-(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. (2) In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly: Provided that no criminal jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.” The question therefore is whether the original jurisdiction of this court was properly invoked by the plaintiff in the present. When confronted with similar question in a preliminary objection Attorney General of Lagos State v. Attorney General of the Federation (2004) 18 NWLR (Pt. 904) 1, (2004) 4 9 – 12 SCM, (Pt. 1) relied upon by both parties in this case, my learned brother Tobi JSC answered the question at pages 125-126 where he said – PAGE| 5 “In Attorney General of the Federation v. Attorney General of Imo State (1983) 4 NCLR 173, it was held that before the original jurisdiction of the Supreme Court can be invoked under section 212 of the 1979 Constitution, the following criteria must be satisfied: “(1) There must be a justiciable dispute involving any question of law or fact. (2) The dispute must be:- (a) between the Federation and a State in its capacity as one of the constituent units of the Federation; or (b) between the Federation and more states than are in their capacities as members of the constituent units of the Federation; or (c) between States in their aforesaid capacities and the dispute must be one on which the existence or extent or a legal right in the aforesaid capacity is involved.” In Governor of Ondo State v. President of the Federation (1985) 6 NCLR 681, it was held that it is only the Supreme Court that has exclusive jurisdiction by virtue of Section 212 (1) of the 1979 Constitution to hear and determine a dispute between the Federation on the one hand and, the State on the other. See also The Governor of Kaduna State v. The President of the Federal Republic of Nigeria (1981) 2 NCLR 786; Obioha v. President of the Federal Republic of Nigeria (1981) 2 NCLR 701; Governor of Ogun State v. President of the federal Republic of Nigeria (1982) 3 NCLR 538; President of the Federal Republic of Nigeria v. Governor of Kano State (1982) 3 NCLR 819. And if I may say, Section 212 of the 1979 Constitution is in pari materia with the original section 232 of the 1999 Constitution.” On the type of disputes that parties could bring to invoke the original jurisdiction of this court under Section 232 of the 1999 Constitution of the Federal Republic of Nigeria which is in pari materia with the provision of section 212 of the 1979 Constitution on the original jurisdiction of this court, see a recent decision of this court in Attorney General Anambra State v. Attorney v. General of the Federation (2005) 9 NWLR (Pt. 931) 572 at 610 and 625 (2005) 5 SCM, 1 where some of the reliefs claimed by the plaintiff which could not have been brought within the original jurisdiction of this court were struck out. It is quite clear from the numerous decisions of this court that in order to invoke the original jurisdiction of this court under section 232 (1) of the 1999 constitution, there must be a dispute PAGE| 6 between the Federation and one or more States as component part of the Federation or between the States themselves and the character of the dispute, as clearly qualified by the Section, must involve a question whether of law or fact, on which the existence or extent of a legal right depends. It must be clearly established that the dispute within the purview of the Section, must be a justifiable dispute. In other words the dispute contemplated under the section must be a dispute that is appropriate for judicial determination. See Attorney General of Bendel State v. Attorney General of the Federation & 22 Ors (1981) 10 SC 1 In the present case, there is no doubt whatsoever that the plaintiff in its statement of claim filed in this court to invoke the original jurisdiction of this court under Section 232 of the 1999 Constitution, has shown the existence of a dispute contemplated under the section. However, the main question is whether the plaintiff has succeeded in showing the existence of this dispute with the Federation of Nigeria which is the real defendant in the action. Now the word “Federation” is defined by the 1999 Constitution itself in Section 318 where it stated:- “ ‘Federation’ means the Federal Republic of Nigeria” Although on the face of the word there may not be difficulty in its meaning, I shall still refer to the definition of the word as used in Section 212 of the 1979 Constitution which is in pari materia with section 232 of the 1999 Constitution in the case of Attorney General of the Federation v. Attorney General of Imo State (1993) 4 NCLR 178 where Bello JSC (as he then was of blessed memory) defined the word “Federation” in his judgment at pages 193-194 where he said:- “It now remains to consider the crucial question, which has never been decided by this court, as to what is ‘Federation’ and ‘State’ within the ambit of Section 212 of the Constitution, ‘State’ when used otherwise than in relation to one of the component parts, of the Federation includes government, ‘government’ includes the Government of the Federation, or of any State or of a Local Governm-ent Council or any person who exercises power or authority on its behalf, The meaning of the word ‘Federa-tion’ presents no difficulty. It is clear from the provisions of Section 2 of the Constitution that the words ‘Nigeria’, ‘Sovereign State’, ‘Federal Republic of Nigeria’ and ‘Federation’ are synonymous. I hold that ‘Federation’ in Section 212(1) of the Constitution bears the same meaning as the Federal Republic of Nigeria”. PAGE| 7 I have already stated earlier in this judgment that Section 212 of the 1979 Constitution under which the word ‘Federation’ was defined is in pari materia with the provisions of Section 232 of the 1999 Constitution now under consideration. I therefore respectfully, adopt the definition of the word ‘Federation’ in Section 232 of the 1999 Constitution as bearing the same meaning as the ‘Federal Republic of Nigeria’. By this meaning of course all the complaints of the plaintiff in its statement of claim in the present case must be viewed as being against the Federal Republic of Nigeria in order to bring the case within the purview of Section 232 of the Constitution. In other words any complaints against the Government of the Federation or any person who exercises power or authority on its behalf like the Inspector General of Police as asserted by the learned senior counsel for the plaintiff in his address before this court, are completely outside the original jurisdiction of this court. For the avoidance of any doubt I have very carefully examined the plaintiffs statement of claim right from paragraph one through to the last paragraph 31 containing the reliefs being sought, I have not come across any compliant in any of the paragraphs against the Federation or the Federal Republic of Nigeria. In his address before this court learned senior counsel to the plaintiff referred to paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 27, 28, 29 and 30 of the statement of claim as disclosing dispute with the defendant, the Federal Republic of Nigeria. These paragraphs of the plaintiff’s statement of claim read:- “13. The plaintiff states that some time in 2005 the president of the Federation wrote a letter to the Governor of Kano State in which he expressed some concern about the Hisbah Board and the Governor duly replied the president to allay his fears on the matter. The two letters are hereby pleaded and shall be found upon at the hearing. 14. The plaintiff avers further that earlier in July, 2005 the President sent a delegation made up of the Honourable Minister of Police Affairs, the Head of the Civil Service of the Federation and two other top Federal Government functionaries to Kano State on a fact finding mission on the issue of the Hisbah Board and its operations. 15. The plaintiff states that the Government of Kano State duly received the delegation and extended all support and co-operation to them by giving all necessary information on the operation of the Hisbah in Kano State to them and the above facts were attested to in the letter of the President dated 29th July, 2005 written to the Governor of Kano State. PAGE| 8 16. The plaintiff states that the Governor of Kano State further in August, 2005 wrote another letter to the President to clarify certain misinformation passed to the President on the issue of the Hisbah by some individuals. A copy of the letter is pleaded. 17. The plaintiff states that on or about 7th of February, 2006 the Inspector General of Police Mr. Sunday Ehindero addressed the press and at the briefing he declared the Hisbah Law and the operations of the bodies created by the Laws as unconstitutional and illegal . 18. The plaintiff states that on 8th February, 2006 the Inspector General of Police caused his officers and men to effect the arrest of the Chairman and Commander General of the Hisbah Corps, Mallam Yahaya Farouk Chedi and his deputy Mallam Abubukar Abdulka-reem Rabo who were arrested in Kano but immediately taken to Abuja And detained . 19. The plaintiff avers that before the events alluded to above supra, the agents of the plaintiff had made some allegations that the Hisbah had sought foreign assistance from Libya and Iran for training as a terrorist group. 20. The plaintiff states that when this allegation got to the attention of the Governor of Kano State, he directed that the veracity of the allegation be investigated and this was duly done. x 27. The plaintiff shall contend further that until a piece of legislation is declared unconstitutional, no authority or person in Nigeria can unilaterally declare such legislation unconstitutional nor stop its full operation and or implementation. 28. The plaintiff states that the defendant through the Minister of Information had addressed the press in which he made serious allegations of security breaches against the Kano State Government. A copy of the press release of the said Minister shall be found upon at the hearing. 29. The plaintiff states emphatically that there is no iota of truth in the allegations of the defendant on the activities of the Hisbah Corps and since 2003 when the corps came into operation it has been assisting the law enforce-ment agencies in maintaining peace in Kano State to the admiration of all peace loving people of the State. 30. The plaintiff shall contend that the activities of the defendant on the issue of the Hisbah is actuated not by national security but petty politics vendetta and blackmail.” PAGE| 9 Although the word ‘defendant’ was used in some of the paragraphs of the statement of claim, that word cannot be construed as referring to the Government of the Federation or any of its agencies or any person who exercises power or authority on its behalf like the Inspector General of Police or the Attorney General of the Federation. The word must be construed to refer to the ‘Federation of Nigeria’ or the ‘Federal Republic of Nigeria’, which is the recognised defendant in terms of Section 232 of the 1999 Constitution prescribing the parties that may invoke the , original jurisdiction of this court. Not a single paragraph of the plaintiffs statement of claim accused the Federation of Nigeria or the Federal Republic of Nigeria of doing anything to the Hisbah Law of Kano State, the operation of the Hisbah Corps in Kano State or the arrest and detention of the named Commander General and Deputy Commander General of the Hisbah Corps in Kano State. On the face of the statement of claim of the plaintiff therefore, it is not difficult to see that there is no dispute whatsoever between Kano State in its status as a component unit of the Federation and the unit ,of the Federation itself which are the recognised parties when the original jurisdiction of this court is invoked. However, quite contrary to the requirements of section 232 (1) of the 1999 Constitution, the dispute disclosed in the plaintiffs statement of claim is a dispute between the Government of Kano State and its agencies and the Government of the Federation and its agencies, particularly the Police and the Federal Ministry of Information through the Inspector General of Police and the Minister of Information who in their capacities as persons exercising power or authority on behalf of the Government of the Federation, addressed the press declaring the Hisbah Law of Kano State and the operation of the bodies created by it, as unconstitutional and illegal. Certainly if the plaintiff has any dispute with the Inspector General of Police and the Honourable Minister of Information for their respective roles in the various declarations they made on the Hisbah Law, the operation of the Hisbah Corps and the arrest and detention of the officials of the Hisbah Corps, the proper venue for the settlement of such dispute does not lie in invoking the original jurisdiction of this court. The venue for the settlement of such dispute lies elsewhere with various courts of first instance whose original jurisdictions are clearly outlined in the same 1999 Constitution. It may be appropriate to observe at this stage that the original jurisdiction of this court under section 232 of the 1999 Constitution must be distinguished with the original jurisdiction of the Federal High Court under PAGE| 10 Section 251(1)(p)(q) and (r) dealing with actions against the Federal Government or any of its agencies where the same Constitution states:- “251(1) 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- x (p) 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 Constitut-ion 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; xx” Having regard to these plain provisions of the Constitution, I am of the strong view that to accede to the arguments of the learned senior counsel for the plaintiff to entertain the present action would result in reducing the status and function of this court to that of the Federal High Court, quite contrary to the spirit and intention of the Constitution which assigned the limit of powers and jurisdiction to be exercised by each court created by it. In any case, the provisions of section 232 of the 1999 Constitution are quite clear. It is now well settled that the duty of this court and indeed any other court, is to interpret the words contained in the Constitution, and any statute in their ordinary and literal meaning. Certainly, it is not the duty of the court to go outside words used in a statute and import an interpretation which may be or is convenient to it or to the parties or to one of the parties. See Curtis v. Stovin (1869) 22 G.B.D. 513 at 519; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 547; Attorney General of Bendel State v. Attorney General of the Federation & Ors (1981) 3 NCLRI and Attorney General of Lagos State v. Attorney General of the Federation (2004) 18 NWLR (Pt.904) 1 at 32.(2004) 9-12 SCM, (Pt. 1) 1 Going back to the reliefs sought by the plaintiff in paragraph 31 of the statement of claim earlier quoted in this judgment, none of the reliefs claimed has anything to do with the defendant in this case, which is the Federation or Federal Republic of Nigeria. PAGE| 11 Quite contrary to the requirement of the law in filing actions in courts of competent jurisdiction, all the reliefs in this case sought by the plaintiff in this court were claimed against the Inspector General of Police who unfortunately is not a recognised party subject to the original jurisdiction of this court under Section 232 (1) of the 1999 Constitution. That apart, relief 9 claimed by the plaintiff namely:- “to stop the arrest and prosecution of any official of Kano State Government in the lawful execution and implementation of the provisions of the said laws”. being in the nature of relief arising from criminal proceedings, this court is specifically barred from exercising original jurisdiction in such matters in the provision to sub-section (2) of section 232 of the 1999 Constitution. In other words the plaintiffs statement of claim in the present case not having disclosed any dispute between Kano State as plaintiff and the Federation of Nigeria as defendant, the original jurisdiction of this court cannot be invoked to hear and determine the plaintiffs case in the absence of any justiciable dispute between the parties. This is in line with the observation of Kutigi JSC (as he then was) in the case of Badejo v. Federal Minister of Education & Ors (1996) 8 NWLR (Pt.464) 15 at 41 where, when faced with a. similar situation as in the present case, remarked thus – “It will in my view be subversive for a court of law to claim to determine disputes where none existed or had ceased to exist.” Applying this remark to the present case, the plaintiff having failed to show the existence of any justiciable dispute between it and the defendant being the Federal Republic of Nigeria, the original jurisdiction of this court is ousted thereby relieving the court of the power to adjudicate in the matter. Accordingly, the plaintiffs suit No.SC.26/2006 filed in this court on 13-12-2006, in purported invocation of the original jurisdiction of this court under section 232 (1) of the 1999 Constitution of the Federal Republic of Nigeria, is hereby struck out with no order on costs.

SC. 26/2006