Bronik Motors Ltd &anor V Wema Bank Ltd (1983)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

In this Suit which commenced in the High Court of Lagos State as Suit No. LD/404/80, the plaintiff (i.e. respondent herein) brought a claim against the defendants (appellants herein) in the following terms:

“1. Specific performance of an agreement between the parties and evidenced in letters dated 10th January 1976, 28th January, 1976, and 2nd February, 1976, whereby the defendants promised to execute legal mortgage of the defendants’ properties lying and situate at (a) Herbert Macaulay Street, Yaba, Lagos (b) Adekunle Fajuyi Street, Ibadan (c) Ijebu-Bye Pass, Oke Ado, Ibadan (d) 21 Barracks Road, Calabar and (e) Mile 3 Abe/Port Harcourt Road, Aba; in favour of the plaintiff to secure various overdrafts amounting to over N2,000,000 made, to the defendants in Lagos between 1976 and 1978.

2. The sum of N2,135,092.57k (Two Million One Hundred and Thirty Five Thousand Ninety Two Naira and Fifty Seven Kobo) being balance due to the plaintiff for overdrafts granted by the plaintiff to the first defendant at the plaintiff’s Mushin and Ebute Metta Branches, in the normal course of their business as bankers to first defendant at their request and for bank charges, incidental expenses upon money due from the defendants to the plaintiffs which money the defendants have refused and/or neglected to pay in spite of repeated demands. Plaintiff also claims interest on the said sum of N2, 135,092.57k at the rate of 8% per annum from 1st October, 1979, until final liquidation of the whole debt or part thereof.”

Pleadings were ordered and were duly filed and exchanged by the parties. After a protracted trial in which 28 exhibits were tendered and received in evidence, Onalaja, J. in a detailed and painstaking judgment delivered on 24th April, 1981, found in favour of the plaintiff bank. His judgment was in the following terms:

“(a) An order of specific performance against the defendants to execute legal mortgage of their properties situate, lying, designated, described as (i) 400 Herbert Macaulay Street, Yaba, Lagos and (ii) 21 Barracks Road, Calabar in favour of the plaintiff. (b) The total sum of N2, 135,092.57k plus interest at the rate of 8% before this judgment and 4% thereafter this judgment until final liquidation of the judgment debt.

(c) The sum of N500,000 against the second defendant as a guarantor of the first defendant with interest at the rate of 8% per annum before judgment and 4% thereafter.”

The appellants herein being dissatisfied with that judgment appealed to the Federal Court of Appeal (hereinafter referred to as the Court of Appeal). I may just in passing mention that in the course of the proceedings before that court a third party intervened in relation to the ownership of 400 Herbert Macaulay Street, Yaba, one of the properties in respect of which the learned trial judge had granted an order of specific performance. It may also be pertinent to mention, particularly as it is one of the grounds on which the appellants have complained to this Court, that the Court of Appeal allowed the respondent to amend paragraphs 3, 4, 6, 7, 8 and 9 of the statement of claim by substituting the words “Bronik Motors Incorporated” for the words “the first defendant”. It also allowed additional words to paragraph 39 of the statement of claim to indicate that the sum claimed included payment made in respect of letters of credit it opened at the request of the first appellant. The Court of Appeal exercised this power pursuant to Order 1 rule 20 of the Rules of that Court and section 18 of the Federal Court of Appeal Act, 1976. The amendments, the court ruled in its judgment dated 6th July, 1982 (Ademola, Nnaemeka-Agu and Mohammed, JJ.C.A.). were to prevent any substantial injustice. They did not, it further said, introduce any new matters but rather made “evidence already given and exhibits tendered more intelligible to follow and understand”. In the said judgment, the Court of Appeal dismissed the appellants’ appeal and confirmed the judgment of the High Court in part. The order for specific performance made by the High Court in respect of 400 Herbert Macaulay Street, Yaba, and 21 Barracks Road, Calabar was set aside as null and void. It is against this judgment that the appellants have appealed to this Court.

By leave of this Court, an amended notice of appeal containing 13 grounds of appeal was filed by the appellants. As this appeal will turn on the proper interpretation of section 7 of the Federal Revenue Court Act 1973 (No. 13 of 1973) and section 230 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) on which learned counsel for both parties addressed us extensively, I do not propose to set down all the grounds. In ground 13 the appellants complained 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 High Court of Lagos State.

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 Exlusive 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 causes and matters … connected with or pertaining to . . . banking” in the Federal High Court.

(c) Section 8 (1) of the said Act prohibits the High Court or any other court of a State from exercising jurisdiction.

(d) More than three months having expired since final addresses, the Federal Court of Appeal had no jurisdiction to pronounce any judgment. ”

It is necessary to point out at this stage that the issue of jurisdiction was never taken before the High Court and the Court of Appeal. There really can be no objection to this since it is well settled that jurisdiction can be raised at any stage of the proceedings. See, Nnaka Udenta & Ors v. Ani Chukwunta & Ors (1959) 111 E.N.L.R. 45. Besides, I agree with Chief Williams, S.A.N., learned counsel to the appellants, that the point being taken in this Court could not have been taken in the two lower Courts since they were bound by the decision of this Court in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. (Part 11) 208 discussed in more detail infra in this judgment. Having regard to the importance which a proper interpretation of section 230 of the 1979 Constitution has assumed, it is just as well that this point was raised now.

The appellants argued this appeal in the alternative and it may be more convenient to follow that pattern in this judgment. Chief Williams, S.A.N., for the appellants, first argued on the proper interpretation of section 7(1) (b)(iii) of the Federal Revenue Court Act 1973. This provision has been construed by this Court in Jammal Steel Structures Limited v. African Continental Bank (Supra) and a majority of this Court held that the banking transaction which was in issue in that case fell within the jurisdiction of the State High Court and not the Federal Revenue Court (as it then was). Put in a nutshell, for I propose later to advert to the full arguments of counsel on this point, Chief Williams contended that that decision was wrong and urged this Court to overrule it. He contended that all matters pertaining to banking including the banker/customer relationship, which was in issue in this suit, fell within the jurisdiction of the Federal High Court and not the State High Court, which actually disposed of the case. His later argument on section 230 of the 1979 Constitution was therefore in the alternative for if his arguments on section 7(1 )(b )(iii) of the Federal Revenue Court Act, 1973 were accepted that would be sufficient to dispose of the appeal in appellants’ favour.

I propose now to return to Jammal’s case and section 7(1) (b)(iii) of the Federal Revenue Court Act, 1973. In that suit, the claim was not unlike that in the present suit. It was a claim for “N641, 328.39k from the defendants/appellants being the balance due to the plaintiffs for an overdraft granted by the plaintiffs to the defendants at their Idumota branch, Lagos, in the normal course of their business as bankers to the defendants and for money paid by the plaintiffs to the defendants as bankers at the latter’s request, which said sum the defendants have refused and/or neglected to pay in spite of repeated demands”. The learned trial judge before whom the matter was first taken having ruled that his court had jurisdiction an appeal was lodged to this Court. Section 7 of the Federal Revenue Court Act, 1973, provides as follows:

“7. (1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters-

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to-

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,

(ii) Customs and Excise duties

(iii) banking, foreign exchange currency or other fiscal measures;

(c) arising from-

(i) the operation of the Companies Decree 1968 or any other enactment regulating the operation of companies incorporated under the Companies Decree 1968;

(ii) any enactment relating to copy-right, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.”

In construing section 7(1)(b)(iii) of Act No. 13 of 1973 the majority of the Court-Elias, C.J.N. and Ibekwe J.S.C., (Fatai-Williams, J.S.C., as he then was, dissenting) came to the following conclusions:

(a) That the ejusdem generis rule supplies to the interpretation of that section such that the word “measures” must be taken to qualify each of the preceding specifically enumerated subjects including banking. This would mean that the ordinary meaning to be given to the sub-section is that it should read, banking measures, foreign exchange measures, currency measures and other fiscal measures.

(b) That the words “or” and “other” in that sub-section are not disjunctive within the meaning of section 13(3) of the Interpretation Act 1964 but by virtue of section 1 (4) of the same Act imply similarity as between the preceding specifically enumerated subjects-banking, foreign exchange and currency and the generic words “other fiscal measures”.

(c) That if the words other measures are construed ejusdem generis with banking, foreign exchange etc., banking measures would cover such pieces of legislation, orders and regulations of the Federal Government as relate to banking-e.g. the Banking Decree 1969, Central Bank of Nigeria Act (Cap 30 of 1958 edition) and ancillary enactments.

(d) That where there is involved only a dispute between a bank and one or more of its customers in the ordinary course of banking business or transaction as in the case with the subject matter of the present case (as is also the case with the present appeal) any State High Court is competent to entertain the case because the Government is not really interested in the outcome of the dispute.

(e) That the true object and purpose of the Federal Revenue Court Decree as can be gathered from the four comers of it is the more, expeditious despatch of revenue cases particularly those relating to personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like which State High Courts were supposed to have been too tardy to dispose of.

(f) That it does not seem that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker/customer relationship such as disputes in respect of overdraft . . . all banking transactions having nothing to do with Federal concern.

In attacking these conclusions, Chief Williams submitted that section 7 of Act No. 13 of 1973 appeared plain and clear. He thought that the construction put on it by the majority leads to uncertainty. He contended that he had never been able to understand what is meant by fiscal measures. He further submitted that the ejusdem generis rule results in narrowing down general words so that they do not go beyond the scope of the specifically enumerated words, which would suit them. If the ejusdem generis rule applies, it will merely operate to limit the scope of the phrase “other fiscal measures”. It will not affect the meaning or scope of the specifically enumerate words such as banking. He argued that “other fiscal measures” must be construed ejusdem generis with banking, foreign exchange, and currency. He contended that what the majority had done was to apply the ejusdem generis rule in reverse (which he thought was never done) for it was the generic words “other measures” which were now giving colour to the specifically enumerated words instead of the other way round. Chief Williams further submitted that under the Interpretation Act, 1964, which applies, effect must be given to punctuation unlike the position in English law. He relied on section 3(1) of the Interpretation Act, 1964, and section 18(3) thereof pursuant to which “or” and “other” would be construed disjunctively. He thought there were two possible ways of reading S. 7(1)(b)(iii) but preferred the second which was also in accord with the view of the minority of the Court. By this that sub-section in issue would read “. . . connected with (a) banking (b) foreign exchange (c) currency (d) fiscal measures.” This, he said, gave an independent meaning to the words currency, foreign exchange, banking, fiscal measures. No word is wasted. He prayed in aid the principle that the legislature cannot be taken to have used any word in vain. Hill v. William Hill Park Lane Ltd. (1949) A.C. 530, 548. He preferred the interpretation in the minority judgment which he argued construed banking in its ordinary sense wide enough to include every banking transaction. In urging this Court to overrule itself in the Jammal case Chief Williams referred to the attitude of this Court as exemplified in its decision in Bucknor McLean & Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1 at 23 Line 28.

In supporting the majority judgment in Jammals case (Supra), Mr. Ladosu Ladapo, learned counsel to the respondent, thought the majority judgment was right in holding that the ejusdem generis rule applied. He thought that it also applied in reverse. He relied on three precedents to which the majority judgment had made reference. These were Nasir v. Bouri (1969) 1 N .M.L.R. 38, 40 and 42 where in ascertaining the meaning of “premises” in the Rent Control (Lagos) Amendment Act 1965, this Court held that the words “or other lawful purposes” in section 1(4) of the Act must be construed as lawful purposes similar to “living or sleeping”. Second was the House of Lords decision in Inland Revenue Commissioners v. Frere (1965) A.C. 402 that the word “interest” in the phrase “interest, annuities or other annual payments” in the Income Tax Act, 1952, meant “annual interest”. The third was Colehill and District Investment Co. Ltd. v. Minister of Local Government & Anor (1968) 1 W.L.R. 600 at 605 where the Court of Appeal in England held that in determining the meaning to be given to the phrase “building, engineering, mining or other operations” in section 12(1) of the Town and Country Planning Act, 1947, the words “other operations” must be construed ejusdem generis with “building”, “engineering” and “mining”. Mr. Ladapo submitted that the majority judgment dealt with the meaning of banking measures and gave two examples-orders or regulations of the Federal Government as relate to the Banking Act 1969 and the Central Bank of Nigeria Act. On the contention that the majority did not give reasons for their decision, he submitted that they in fact gave four which included expeditious despatch of revenue cases and the fact that it was never intended to clutter up the Federal Revenue Court with disputes arising from banker/customer relationships. He further submitted that the legislature will not grant jurisdiction to a new court without expressly stating so. If the intention of the Federal Military Government was to exclude jurisdiction from other courts in all banking matters it would have been easy to say so, he contended. He referred to section 7(1) (c) of the Act which mentions the Company Act and argued that the Act would have mentioned the Banking Act specifically too. He further submitted that if banking was included in section 7(1) (c)(ii) of the Act there would have been no argument as to its full meaning. He also referred to that part of the majority judgment in which it was observed that Act No. 13 of 1973 was not elegantly drafted and needed some retouching to avoid uncertainties and argued that if the intention of the legislature had been other than as found by the majority, some amendments would have been made to the Act since then. Finally, Mr. Ladapo urged that as the highest Court in the land this Court should be cautious in overruling itself. He submitted that before the highest Court overrules a judgment, which has set up finality in the law, it ought to be on very high principles of law. He prayed in aid Jones v. Secretary of State (1972) 1 A.E.R. 146, 149. He thought that the decision in Jammal was right. He submitted that even if the Court thought otherwise the proper order to be made in the present case would be remission of the case to the Federal High Court and not striking it out. This, he said, is pursuant to the Revenue Court (Amendment) Act No. 36 of 1975.

I do not myself think that one can arrive at a correct interpretation of section 7 of Act No. 13 of 1973 without constantly bearing in mind the object for which the Federal Revenue Court (as it then was) was set up. It was essentially to deal expeditiously with matters pertaining to the revenue of the Government of the Federation, which it was felt at the time, were not being so handled by the State High Courts. I would place emphasis on that part of the judgment of the majority in which Elias, C.J.N., said:

“It does not seem to us that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker-customer relationship, such as disputes in respect of an overdraft, or the negligent payment of a forged cheque or negligent dishonouring of a customer’s cheques-all ‘banking transactions’ having nothing to do with Federal revenue concern.”

Admittedly what is being construed here is a statute and not a constitutional document but I believe that the principle of considering the object and scope of the provision is equally applicable. See Groves v. Slaughter 10 U.S. Supreme Court Reports 800, L. Ed. first series; Gibbons Vogden 6 U.S. Sup. Ct. Reports 23. L. Ed. 1st Series.

In my view the principal part of section 7 is really section 7(1)(a) which provides as follows:

“The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters-

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a Party.”

It is the semi-colon used before, sub-sections (b), (c) and (d), which have introduced the uncertainty as to the legislative intent of the legislature. I have no doubt that the intention was to vest jurisdiction in the Federal Revenue Court to deal with civil matters relating to the matters enumerated in sub-sections (b) and (c) in so far as they relate, to the revenue of the Government of the Federation. That would colour the meaning to be attached to all those enumerated subjects e.g. banking. There has to be a revenue element, which involves the Federal Government. Although the explanatory note inserted at the end of the Act is neither a part of it nor intended as a sure guide to the interpretation of the Provisions, paragraph 3 is instructive. It states as follows:

“The Federal Revenue Court shall have original jurisdiction in certain specified matters including taxation of companies, customs and excise duties, banking, foreign exchange, currency and fiscal measures of the Government of the Federation, and priority is to be given to all such revenue cases . . .”

The minority judgment, and Chief Williams has urged us to accept it, and argued that “banking”, “foreign exchange”, and “currency”, should each stand alone and be construed as such because of the commas which separate them and that banking was used as a noun in section 7(1)(b)(iii) of the Act. With the greatest respect, in my view this rendering would only be possible if the of the Act had indeed read thus:

“(b) connected with or pertaining to

(iii) banking

(iv) foreign exchange

(v) currency or

(vi) other fiscal measures.”

On the contrary the was “(iii) banking, foreign exchange, currency or other fiscal measures”. This led to the conclusion of the majority that the proper interpretation of the sub-section and the natural and ordinary meaning must be “banking measures”, “foreign exchange measures”, “currency measures” and “other fiscal measures”.

As regards the commas to which reference has been made above, punctuations are really not quite relevant in the construction of statutes (see Maxwell on Interpretation of Statutes 12th Edition at page 12). This however, it must be conceded, may be the position in English law. Section 3(1) of our own Interpretation Act, 1984 No. 1 of 1964 states that “Punctuation forms part of an enactment and regard shall be had to it accordingly in construing the enactment”. But section 1 thereof provides that “this Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment”. Again with the greatest respect, I think that with all that has been said above about the proper import of section 7(1)(b )(iii) there was clearly a contrary intention to its being given the meaning ascribed to it by the use of commas.

As regards the decision of the majority that the ejusdem generis rule applies in construing section 7(1)(b)(iii), I do not think that this can be justly supported by claiming that the rule applies in reverse. If the ejusdem generis rule applied, the generic words “other fiscal measures” would have taken their colour from the specifically enumerated subjects banking, foreign exchange, and currency and not the other way round as indeed happened here. Nor do I think, as indeed the minority judgment did not, that the cases Nasr v. Bouari (1969) 1 N.M.L.R. 38, 40 and 42 and Colehill and District Investment Co. Limited v. Minister of Local Government and Anor (1968) 1 W.L.R. 600 at 605 support the position of the majority judgment since it is clear to me that the generic terms “or other lawful purposes” and “other operations” which occurred in both cases were construed ejusdem generis with the specifically enumerated subjects in those two cases, which were “living and sleeping” in one and “building”, “engineering” and “mining” in the other. Rather than argue that the ejusdem generis rule was applied to section 7(1)(b)(iii) in reverse, I think that the basis of the decision was that associated words could be understood in a common sense. “Where two or more words which are susceptible of analogous meaning are, coupled together, noscitur a sociis. They are understood to be used in their cognate sense. They take, as it were, their colour from each other the meaning of the more general being restricted to a sense analogous to that of the less general”. See Maxwell: Interpretation of Statutes 12th Edition p. 289. The noscitur a sociis rule was applied to the construction of the Offences Against the Person Act 1837 (i.e. of England) which made it a felony to shoot at or to “stab cut or wound” any person. The word “wound” was held to be restricted by the words which preceded it to injuries inflicted by an instrument, and consequently to bite off a finger or a nose, or to burn the face with vitriol, was not to wound within the meaning of the Act. See R. v. Harris (1836) 7 C.&P. 448. See also Pengelly v. Bell Punch Co. Ltd. (1964) 1 W.L.R. 1055 per Diplock L.J. at page 1099. As was said in Virginia v. Tennessee 148 U.S. 503, 135 Supreme Court 728; 37 L. Ed. 337.

“Noscitur a sociis is a rule of construction applied to all written instruments. The obscurity or doubt of any particular word may be removed by reference to associated words. And the meaning of a term may be enlarged or restricted by referring to the object of the whole clause in which it is used.”

It seems to me that taken in this con and having regard to section 1 of the Interpretation Act 1964 the words “or” and “other” in section 7(1)(b)(iii) of the Act would appear to imply similarity and ought not to be construed disjunctively.

Having held that the majority judgment is right in construing section 7(1)(b)(iii) such that the Federal Revenue Court is restricted to its essentially revenue protection functions while the State High Courts deal with such matters in which no issue of the revenue of the Government of the Federation arises, I would agree that there has to be express provision and a more definitive provision than section 7(1)(b )(iii) before one can accept the contention that “all banking matters” must fall within the jurisdiction of the Federal High Court. I would in this connection gratefully adopt the passage in Maxwell: Interpretation of Statutes 10th Edition pp. 128-9 referred to in the majority judgment to the effect that;

“It is supposed that the legislature would not make any important innovation without very explicit expression of its intention; especially since in recent years such an intention has often been very explicitly expressed. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the legislature intended to deprive the Superior Court of the jurisdiction, which it already possessed over the same cases. Thus, an Act which provided that if any question arose upon taking a distress it should be determined by a commissioner of taxes would not thereby take away the jurisdiction of the High Court to try an action for an illegal distress.”

Following the same reasoning I would agree with the submission of Mr. Ladapo that if the legislature intended to vest such a wide jurisdiction on the Federal Revenue Court “in all banking matters” nothing could have stopped it from specifically mentioning the Banking Act. Also nothing would have stopped it from including banking in section 7(1) (c)(2) of the Act. I have therefore come to the conclusion that the decision of the majority was right and ought to be allowed to stand.

There is just one other matter I would wish to deal with before leaving this part of the appeal. Learned counsel to the respondent urged this Court, as a Court of last resort, to be wary about overruling its decisions when such decisions had stated the finality of the law on the relevant subject. He referred to the practice in the House of Lords in England. In Jones v. Secretary of State for Social Services, Hudson v. Secretary of State for Social Services (1972) 1 A.E.R. 145 Lord Reid said at page 149:

“My understanding of the position when this resolution was adopted was and is that there was a comparatively small number of reported decisions of this House which were generally thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy and that such decisions should be reconsidered as opportunities arose. The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled, courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternative open to them. But this is bound to led to uncertainty for no one can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.

But that certainty will be impaired unless this practice is used sparingly. I would not seek to categorise cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents.”

The House expressed similar views in Vestey v. Inland Revenue Commissioners (Consolidated) (1979) 3 W.L.R. 915 where their Lordships again said:

“The discretion conferred on the House of Lords by Practice Statement (Judicial Precedent) (1966) 1 W.L.R. 1234 should be exercised sparingly particularly in relation to questions of the construction of statutes, and the House should try to keep it governed by stated principles but the fact that the circumstances of a particular case cannot be brought precisely within the formulae used in others of a different character should not be fatal to its exercise.”

I believe that this Court is not unconcerned with the principle of stare decisis and the need to maintain certainty of the law. But it would not feel obliged to perpetuate a decision if it is satisfied that such a decision is manifestly wrong or was given per incuriam some relevant statutory or constitutional provisions. In Mrs. Bucknor-McLean and Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1 at pp. 23-25 where a submission similar to that made here by learned counsel to the respondent was urged on the court (i.e. to overrule its decisions in very rare cases) Idigbe J.S.C. put the principle in these words:

“I have no doubt that this Court will, and I do, treat this pronouncement of the House of Lords (i.e. in 1966 3 All E.R. 77) with considerable respect. All the same I share the view of Lord Morris in Conway v. Rimmer that ‘though precedent is an indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interests of justice and the proper development of the law’ (See (1968) 1 All E.R. 874 at 892). With particular reference to the recent cases of Jammal (i.e. Shell B.P. etc. v. Jammal Engineering Nigeria Limited (1974) 1 All N.L.R. 542) and Owumi based as they are in part on some of the statements in another recent case of Jaffer v. Ladipo (Supra), I see no more justification for perpetuating recent error than for retaining uncorrected any error in much older decisions of this Court. “

Indeed in recent times this Court had overruled several of its decisions: See Nofiu Surakatu v. Nigeria Housing Development Society Ltd. (1981) 4 S.C. 26; Mrs. Bucknor-MacLean and Anor v. Inlaks Ltd. (Supra); and Alhaji Raji Oduola and Ors v. John Gbadebo Coker and Ors (1981) 5 S.C. 197.

However, I do not think that the present case falls into one of those decisions that deserve overruling. For the reasons I have given, I do not accept the contention of learned counsel to the appellants that the decision of the majority in Jammal’s case was wrong. The Lagos State High Court had jurisdiction to entertain the suit. That part of the appellant’s ground 13 must therefore fail.

I will now move to the constitutional issue which concerned the proper interpretation of section 230 of the 1979 Constitution. Section 230 of the Constitution provides as follows:

“230. (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction

(a) In such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly and

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

(2) Notwithstanding sub-section (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.”

On this part of the case, Chief Williams submitted that the interpretation should be approached from the true meaning and intent of the Constitution. The argument he said should start from section 6 of the Constitution, which deals with judicial power. He submitted that judicial power constitutes one of the three major attributes of a sovereign. It referred to the power of the supreme authority to decide disputes among its subjects including strangers within its gates. He further submitted that in any federation where sovereign power is shared, judicial power would also be shared between the Federation and its component parts. He submitted that section 6 of the 1979 Constitution read with Chapter 7 of the same Constitution-which deals with the Judicature-clearly intend a division of the judicial power between the Federation on one hand and the States on the other. He referred to section 6 sub-sections (1) and (2) of the 1979 Constitution. He said that prior to 1979, the Constitution had been silent on the vesting of judicial power but in 1979 there was distinct vesting of judicial power of the Federation and distinct vesting of judicial power of the States. Section 6 of the 1979 Constitution, he pointed out, did not show what courts were established for the Federation and those established for the States. Chapter 7 of the Constitution has done this. Part 1 sections A, B and C deal with the Supreme Court, the Federal Court of Appeal and the Federal High Court, while Part 2 sections A, B and C deal with the High Court of the State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State, these being the State courts. These courts established for the Federation and those established for the States, he said, are different-there is even difference in the manner in which vesting of judicial power is made. As regards the Supreme Court and the Federal Court of Appeal, he submitted that they can exercise judicial powers of the States, but in respect of the Federal High Court it was his contention that that court will exercise jurisdiction of the Federation, which in his opinion relates to the legislative subjects within the competence of the National Assembly. He submitted further that unless the Constitution expressly says so State courts do not have federal jurisdiction. He referred to section 250(1) (a) of the 1979 Constitution.

As regards section 230 of the Constitution, he said that the particularly relevant paragraph was 230(1)(b). The question, he thought, was whether “prescribed” therein intended to apply in the present or the future. He referred to the definition of “prescribed” under section 277 of the 1979 Constitution-“prescribed by or under this Constitution or any other law”-and concluded that the jurisdiction of the Federal High Court is as prescribed by the Constitution and such other law as may be prescribed by the National Assembly. He said that “as prescribed” in section 230 ought to be read as relating to the present and prayed in aid section 275(4) of the Constitution and the decision of the Federal Court of Appeal in Federal Republic of Nigeria v. Eze (1982) 3 N.C.L.R. 259; Minister of Internal Affairs v. Shugaba (1982) 3 N.C.L.R. 915 and Senate of the National Assembly v. Tony Momoh (unreported). “Banking,” he said, was in the Exclusive Legislative List in the 1979 Constitution and it encompassed all matters including banker/customer relationship. In Chief Williams’ view, under section 230(1)(b), the Federal High Court would have jurisdiction in such other matters prescribed under the Constitution in respect of which the National Assembly has power to make laws, which he thinks refers to the Exclusive Legislative List.

Chief Williams concluded by arguing that although the judicial power of the Federation relates to all matters in the Legislative Lists it does not mean that the jurisdiction of the Federal High Court can include all the matters in respect of which the National Assembly has power to make law. He excluded item 34 in the Exclusive Legislative List, which is a matter in respect of which the Supreme Court has exclusive jurisdiction.

For his part Mr. Ladapo also dealt with the concept of judicial power and jurisdiction. He agreed with Chief Williams that section 6 of the 1979

Constitution did not deal with jurisdiction. The specific allocation of judicial power is the thing that gives jurisdiction to the individual courts under the Constitution. As regards the contention that there was Federal judicial power and State judicial power, he submitted that while it is clear under the Constitution what the executive power of the Federation and the States are, it is not clear what the Federal and State judicial powers are. He submitted that one couldn’t talk of Federal judicial power and State judicial power. The States courts he contended have been given Federal judicial power, and besides, the Supreme Court and the Federal Court of Appeal which are Federal courts but which he would rather redesignate National courts exercised some State judicial power.

Mr. Ladapo did not agree that the jurisdiction of the Federal High Court is co-extensive with Federal legislative power. As regards section 230, it is his submission that sub-section (2) therein restates the jurisdiction given to the Federal High Court by section 7 of Act No. 13 of 1973. Section 230(1) (a), he submitted, is not self-executing. The National Assembly, he argued, has to prescribe and this would relate to telephone bills, etc. The National Assembly was yet to prescribe but has stopped at the content of section 7 of Act No. 13 of 1973. As regards section 230(1) (b), he submitted that it gives power to the National Assembly in relation to the future. The Assembly has as yet not prescribed. He said that such an interpretation was not absurd having regard to the unlimited jurisdiction given to the State High Courts under section 236 of the Constitution, nor would it lead to tautology since the section (i.e. 230) was made “subject to the provisions of the Constitution” and one had therefore to look at other provisions that conferred jurisdiction on the courts e.g. sections 236 and 250. He thought that section 230(1)(b) deals with such other matters other than the revenue of the Federal Government.

He contended that the only sections under the 1979 Constitution which confer jurisdiction on the Federal High Court are Ss. 230, 237 and 42 and this was to be contrasted with the limited jurisdiction conferred on the State High Courts under section 236 as well as the extra jurisdiction conferred on them by section 237(2)(c) and section 250 of the 1979 Constitution. It was his view that the decisions of the Federal Court of Appeal in Eze (Supra); Shugaba (Supra) and Tony Momoh’s case in so far as they decided that section 230(1)(a) and (b) were self-executing provisions were wrong. He pointed out that the views expressed by the learned justices of the Federal Court of Appeal were in any case obiter.

He concluded by submitting that although the subject of the dispute in the suit in hand-banking-was in the Exclusive Legislative List it did not mean that the State High Courts had no jurisdiction. He prayed in aid section 275(1) of the 1979 Constitution as well as the Regional Courts (Federal Jurisdiction Act) 1958 and sections 10 and 11 of the High Court Law, Cap 52 of Lagos State.

In approaching this Constitutional problem, it might be useful to reiterate some of the principles of construction of Constitutions as laid down in decisions of our Courts. A Constitution is a living document (not just a statute) providing a framework for the governance of a country not only for now but for generations yet unborn. In construing it, undue regard must not be paid to merely technical rules for otherwise the objects of its provisions as well as the intention of the framers of the Constitution would be frustrated.

As was stated in Minister of Home Affairs v. Fisher (1979 2 W.L.R. 899; 1980 A.C. 319 at 328 a Constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament. Although the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. Such an instrument should be treated as sui generis calling for principles of interpretation of its own suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law.

It has also been accepted by all our courts that a broad and liberal spirit should prevail in interpreting the provisions of our Constitution although one has constantly to bear in mind the object, which such provisions were intended to serve. Sir Udo Udoma J.S.C. very aptly stated this in Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at 148 where the learned Justice said:

“My Lords, it is my view that the approach of this Court to the construction of the Constitution should be and so it has been, one of liberalism, probably a variation of the theme of the general maxim ut res magis valeat quam perea. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accordance and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

See also Prigg v. Pennsylvania 16 Pet 539: U.S. Supreme Court Reports 1060, L. Ed. first series. It is also important for the exercise in hand to remember that the provisions of a Constitution ought to be interpreted as a whole i.e. related sections ought to be interpreted together. See Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 5 S.C. 112 at 134; Reid v. Covert 354 U.S. 1; 77 Supreme Court 1222.

Having referred to the guiding principles, I will now return to the contentions of the parties. It would seem to me that the submissions of Chief Williams, S.A.N., for the appellants, can fairly be summed up in this way. Ours is a Federation and the 1979 Constitution has distributed executive, legislative and judicial powers between the federation and its component parts. Judicial power has been so vested in the courts under the Constitution that the Federal courts (contained in sections A, B, C of Part I of Chapter 7) and State courts (contained in sections A, B, C of Part II of Chapter 7) exercise Federal judicial power and State judicial power respectively. Federal judicial power is co-extensive with Federal legislative power (which of course extends to the subjects in respect of which the National Assembly can make laws). Federal Courts (with perhaps the exception of the Supreme Court and the Federal Court of Appeal which are in a peculiar position) exercise Federal jurisdiction [jurisdiction being no more than allocation of judicial power to the individual courts in respect of specified subjects. Diplock L.J. has adequately dealt with the concepts of judicial power and jurisdiction in Anisminic Ltd. v.The Foreign Compensation Commission and Anor (1967) 3 W.L.R. 382 at 394; See also Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1981) A.C. 275 Sub nom British Imperial Oil Co. Ltd. v. Federal commissioner of Taxation (1926) 38 C.L.R. 153; De Smith: “Judicial Review of Administrative Action” 2nd Edition at p. 96; Nwabueze: “Judicialism in Commonwealth Africa” Chapt 1] and this relates to subjects in the Exclusive Legislative List. “Prescribed” under section 230(1) (b) of the Constitution means “prescribed under the Constitution” and since the Federal High Court exercises the totality of Federal judicial power at first instance, the jurisdiction conferred on it in such other matters “prescribed under the Constitution” as respects which the National Assembly has power to make laws relates to matters within the Exclusive Legislative List including banking.

This line of reasoning also draws support from the strong views expressed by Nnaemeka-Agu J.C.A. in Senate of the National Assembly v. Tony Momoh decided by the Federal Court of Appeal on 19th July, 1982, and as yet unreported. There the learned justice put it this way in his lead judgment:

“I am satisfied that the combined effect of sections 6(1) and 230, items 34 and 67 of the Exclusive Legislative List, and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution is to vest in the Federal High Court full jurisdiction over Federal causes and matters at first instance. It is supposed to fulfill for the Federal Government similar jurisdiction and powers therefore as the High Court of a State. Any lingering doubts I might have entertained about the plentitude of its powers is dispelled by a glance at section 231 which provides that for the purpose of exercising any jurisdiction conferred upon it by the Constitution or the National Assembly, that Court shall have all the powers of the High Court of a State. Reading together sections 6(1), 230 and 231; items 34, 67 and paragraph 2(a) and (b) of Part III to the Second Schedule to the Constitution, the fallacy of Mr. Momoh’s attempt to equate that Court to the defunct Federal Revenue Court becomes only too palpable. Incidentally, Mr. Momoh is not alone among lawyers who still see the Federal High Court from the coloured glass of the drastically reduced jurisdiction of the defunct Federal Revenue Court. They ignore its inherent powers as a superior court of record now given to it by a combination of section 6(3) and 6(6)(a) and its powers being equated to those of State High Courts by section 231 (1) of the Constitution. They overlook the wide provisions of section 230, particularly section 230(1)(b). In spite of the above provisions some say it has no inherent power to grant bail to a convicted person. In my view, the whole attitude needs be changed. In my opinion we must reconcile ourselves to the reality that by a deliberate choice we have elected federalism with all its implications; that the raison d’etre is avoidance of internal conflicts by constitutionally recognising our internal diversity by having States which are sovereign within their spheres of authority and a Federal Government which is not only equally supreme but also independent of State Governments in its own sphere-each of the legislative, executive, and judicial arms of governments. ”

That our constitution has embraced the principle of federalism is and in doubt. From it follows the share-out of executive, legislative and judicial powers between the component parts. But we must not make too much of this principle of federalism for it is quite obvious that the spirit of federalism in a Constitution cannot override the, actual words used in the Constitution. In the same vein, I cannot help but feel that the appellants and other protagonists of their view on this point have over played the difference between Federal judicial power as vested by section 6(1) of the Constitution and State judicial power as vested by section 6(2) I will now set down the provisions of section 6 of the Constitution. They are as follows:

“6. (1) The judicial power of the Federation shall be vested in the courts to which this section relates being courts established for the Federation.

(2) The judicial power of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(3) The courts to which this section relates established by this Constitution for the Federation and for States specified in subsection (5) (a) to (f) of this section shall be the only superior courts of record in Nigeria. . .

(5) This section relates to

(a) The Supreme Court of Nigeria;

(b) The Federal Court of Appeal;

(c) The Federal High Court;

(d) a High Court of a State;

(e) a Sharia Court of Appeal of a State;

(f) a Customary Court of Appeal of a State;

(g) . . .

(h) . . .

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) Shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

This provision clearly shows that the line between Federal judicial power and State judicial power is not so precise and certainly not so rigid. The courts, that is those vested with judicial power in sections 6(1) and 6(2) of the 1979 Constitution and enumerated in section 6(3) are to enjoy “inherent powers and sanctions of a court of law” and their power is to extend to “all matters … and to all actions and proceedings relating thereto”. As Professor Ben Nwabueze observes in his book “The Presidential Constitution of Nigeria”, “it is not a delimitation of the extent of Federal or State judicial power. It is rather a definition of the nature of judicial power”.

As will appear later in this judgment as other evidence of the obscure line, State courts, particularly the State High Courts, have given, by the Constitution, not the National Assembly, jurisdiction in Federal causes and matters. (See sections 250 and 237(2) (c) of the Constitution. Equally, jurisdiction has been given to two Federal Courts the Supreme Court and the Federal Court of Appeal in appeals from State courts in respect of subjects within the competence of the State House of Assembly. Appeals go to the Federal Court of Appeal and thence to the Supreme Court from the State High Courts, the Federal High Court, the Sharia Court of Appeal and the Customary Court of Appeal in respect of matters which originate from both Federal and State law. (See sections 212, 213, 220 of the 1979 Constitution and item 34 of the Exclusive Legislative List). The Supreme Court and the Federal Court of Appeal far from supporting the rigid and precise line being drawn between Federal judicial power and State judicial power are in a peculiar position and might well be designated National courts as urged by Mr. Ladapo, learned counsel for the respondent, while under our Constitution the lines between Federal executive and legislative power and State executive and legislative power appear precise and well set down (see sections 4(1), 4(6), 5(1)(a) and 5(2)(a) of the Constitution), the same cannot be said of the Federal and State judicial power. This to my mind undermines to a substantial extent the platform on which much of the submission of learned senior counsel to the appellants was constructed.

Learned Senior counsel to the appellants had as stated earlier in the judgment prayed in aid three judgments of the Federal Court of Appeal- Federal Republic of Nigeria vs Eze (Supra); Minister of Internal Affairs v. Shugaba (Supra) and Senate of the National Assembly vs Momoh (Supra). None of these cases has come on appeal to this Court. It is correct to say that it is only in Eze’s case that the question of jurisdiction of the Federal High Court and the proper meaning of section 230(1)(b) of the Constitution was considered. In Shugaba’s case, although 2 of the learned justices of the Court of Appeal agreed with the interpretation of section 230(1)(b) being urged on this Court, the case was in fact concerned with enforcement of fundamental rights and turned on the proper meaning of section 42 of the 1979 Constitution. In the Momoh case, although four of the learned justices of the Court of Appeal upheld Chief Williams’ interpretation of section 230(1)(b), the case was concerned with the scope of sections 36 and 82 of the 1979 Constitution. The views expressed in these two cases are to my mind obiter. As regards Shugaba’s case the position is even more confounded by the fact that the decision of the Court of Appeal given by a majority of 4 justices to one appears to have been disapproved in Momoh’s case (again by a majority of 4 to one) by another panel of the Court of Appeal on the ground that as the Court in Shugaba’s case did not advert its mind to section 42(2) of the Constitution its decision was given per incuriam.

I propose therefore to look more closely only at Eze’s case. In that case the charge was in relation to offences under the Firearms Act, 1966, and the Customs and Excise Management Act, 1958. The learned Chief Judge of the Federal High Court declined jurisdiction in respect of the offences under the Firearms Act and the matter went on appeal to the Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, JJ.C.A.). The Court of Appeal held that the Federal High Court had jurisdiction. More important, their Lordships held that “as may be prescribed” under section 230(1)(a) and 230(1)(b) of the Constitution means “as are prescribed” under the Constitution. They also held that the Federal High Court has exclusive jurisdiction in respect of matters contained in the Exclusive Legislative List.

The reasoning by which the Court of Appeal arrived at these conclusions can best be seen from some passages from the lead judgment of Kazeem J.C.A. He said,

“The expression ‘as may be prescribed’ appears in sub-section 1(a) and (b) and it is that expression that requires interpretation in order to resolve this issue of jurisdiction. It is said that a statute is always speaking and future forms used in ordinary writing are not necessary in statutes. Hence futurity can also be construed as present tense. For instance in sentence (a) ‘If any person shall give notice’ can be construed as ‘if any person gives notice’. Similarly a sentence (b) ‘where any balance shall have been found’ .can also be construed as ‘where any balance has been found’. But it does not follow that only the present tense must be used or that the future must never be used. See Emer A. Diredger on ‘The Composition of Legislation’ at page 77 on the subject of use of ‘Tense in Legislative Drafting’. Having regard to this use of tense in legislative drafting, I am of the view that the expression as may be prescribed’ used in section 230(1)(a) and (b) of the 1979 Constitution can also mean ‘as are prescribed’. Again the word ‘prescribed’ has also been defined in section 277 of the said Constitution as meaning ‘prescribed by or under the Constitution or other law’. The same word is also defined in section 18(1) of the Interpretation Act 1964 (No.1 of 1964) which is applicable to the interpretation of the said Constitution to mean ‘prescribed by or under the enactment in which the expression occurs’, that is in relation to this matter the 1979 Constitution.On the basis of these two definitions, the expression ‘as may be prescribed’ will then mean ‘as are prescribed by or under this Constitution or any other law’ . . . It is not disputed that the National Assembly has power to make laws with respect to matters referred to in the Exclusive Legislative List which is Part I of the Second Schedule of the 1979 Constitution and item 2 of that list deals with arms, ammunition and explosives. Also item 67 of the said list deals with any matter incidental or supplementary to any matter mentioned elsewhere in the list and supplementary to any matters according to paragraph 2 of Part III of the said Second Schedule include ‘offences’. In the circumstances, I am satisfied that section 230(1)(b) of the 1979 Constitution confers jurisdiction on the Federal High Court to try cases with respect to all matters in the Exclusive Legislative List which includes Arms, ammunition and explosives.”

First of all with due respect I cannot improve on the observation of Omo J.C.A. in Shugaba’s case when, commenting on this decision of the Court of Appeal in Eze, he said:

“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 the Constitution was passed into law the National Assembly had not begun functioning and the plain meaning of the words ‘as may be prescribed’ obviously refers to its role in future.”

Secondly, apart from the meaning ascribed to the words “as may be prescribed”, the Court of Appeal, once it decided that “on such other matters as may be prescribed as respects which the National Assembly has power to make laws” as contained in section 230(1)(b) of the Constitution means “on such other matters as are prescribed by or under the constitution as respects which the National Assembly has power to make laws”, immediately imported matters within the Exclusive Legislative List. That was probably in answer to the question of the learned Director of Public Prosecutions of the Federation who had asked “What are those things prescribed in the Constitution as respects which the National Assembly has power to make laws within the intendment of section 230(1) (b) of the 1979 Constitution”

Nowhere in the 1979 Constitution was jurisdiction expressly conferred on the Federal High Court with respect to matters within the Exclusive Legislative List. This was not a matter that could have been dealt with by implication, for as was held in Prigg v. Pennsylvania (Supra) a court has no right to insert any clause in the Constitution, which is not expressed and cannot be fairly implied. Implied powers also have to be necessary or incidental to expressed powers: See MacKenzie v. Hare 239 US 299, 36 S. Ct 106. It seems clear to me that the only jurisdiction expressly conferred on the Federal High Court by the 1979 Constitution are contained in sections 42 and 237(2)(a). It would also appear to me that the effect of the decisions of the Court of Appeal on the meaning of section 230(1)(a) and (b) is to hold that they are self executing in the sense that they are Constitutional provisions complete in themselves and which need no further legislation such as an Act of the National Assembly to bring them into force. For the reasons I shall give below, I would say with due respect, that to that extent those decisions of the Court of Appeal are, wrong.

There does not appear to be controversy as to the proper meaning of section 230(2) of the 1979 Constitution. In my view that section not only restyles the old “Federal Revenue Court” “Federal High Court” but vests in the Federal High Court all the powers and jurisdiction enjoyed by the old Revenue Court. Accordingly, in my view pursuant to section 274 of the 1979 Constitution, the Federal High Court will continue to enjoy such jurisdiction and powers as were conferred on the Federal Revenue Court by the Federal Revenue Court Act No. 13 of 1973, section 8(3) of the Counterfeit Currency (Special Provisions) Act, 1974 No. 22 of 1974 as amended by the Constitution of the Federation (Consequential Repeals) Act No. 105 of 1979, section 21(1), 49(1), 62 of the Insurance Act 1976 No. 59 of 1976, and the Bankruptcy Act 1979 No. 16 of 1979.

As regards the proper meaning of “as may be prescribed” which occur in section 230(1)(a) and (b) of the Constitution, it is my view that those words should be given their ordinary, plain meaning. It is indeed one of the first rules of interpretation of statutes (and this applies to Constitutions) that words must be given their ordinary, plain, natural meaning. See Felix v. Thomas (1967) 1 A.C. 292 per Lord Morris at p.306; also Virginia v. Tennessee 148 U.S. 503, 13 S. Ct 728. Applying this principle, I cannot see how “as may be prescribed” can refer to anything else but the future i.e. as the National Assembly may prescribe at a future date subsequent to the coming into operation of the 1979 Constitution. On this interpretation the National Assembly which was not functioning at the time the Constitution came into force on 1st October, 1979, would in future confer jurisdiction on the Federal High Court in matters connected with or pertaining to the Revenue of the Government of the Federation [see 230(1)(a)] and in such other matters contained in the Exclusive Legislative List [section 230(1)(b)]. Acting under section 230(1)(b), the National Assembly could increase the jurisdiction of the Federal High Court as it were on a piecemeal basis. I would say with all respect that it seems to me any other interpretation such as has been urged on us but the appellants will not only lead to absurdity but will mean that several parts of section 230 would have to be discarded. To illustrate the point being made here, apart from the jurisdiction conferred on the Federal High Court by section 230(1)(a) and (b), section 230 contemplates a further jurisdiction conferred on that Court by the National Assembly. Subsection 1 of section 230 contains the words “and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly”. The question which then arises is this. If under section 230(1)(b) jurisdiction in respect of matters in the Exclusive Legislative List (and as is shown hereunder the Concurrent Legislative List) has already been conferred on the Federal High Court what other subjects are available on which the National Assembly can act Those words would have to be abandoned as they would serve no useful purpose. Further along the same lines, it may be asked in following the interpretation being advanced to us, what would be the purpose of inserting sections 230(2) and 230(1)(a) into the Constitution The provision of section 230(1)(b) would be comprehensive enough to cover all the subjects dealt with in the sub-sections referred to above. One further problem which would follow is this, item 66 in the Exclusive Legislative List, Part I of the Second Schedule to the Constitution reads:

“Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.”

There is no doubt that the National Assembly has power to make laws in respect of the matter in the Concurrent Legislative List in Part II of the same Second Schedule to the Constitution. If section 230(1)(b) has the extensive jurisdiction being canvassed it would cover both the Exclusive and Concurrent Legislative Lists and so exclude the State High Courts!

I do not think that the framers of the Constitution could have intended that it be beset by these problems. Indeed I think that the problems and absurdities listed above to which there are really no answers ought to settle the issue. It has always to be remembered that it is a principle of interpretation of statutes (and I daresay Constitutions) that where the language of the legislature admits of two possible constructions and, if construed in one way, would lead to absurdity or injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words. See Smith v. Great Western Railway (1877) 3 App. Cas. 166.It is also relevant here to remember that there is another presumption in interpretation by which the legislature is held not to use words in vain or to waste words: See A.O. Ejoh v. Inspector General of Police 1963 1 All N.L.R. 250, 260. See also Holmes vs Jennison 14 Pet. 540, 10 U.S. Sup. Ct Reports 579, L.Ed first series.

Should there still be any lingering doubts as to the proper meaning of section 230(1)(b), I would suggest that it is legitimate to look back at the history of the processes which brought the 1979 Constitution, and particularly section 230, into being. “The Court,” said Sir George Jessel M.R. “is not to be oblivious of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the legislature, yet when the history of law and legislation tells the Court, and prior judgments tell this present Court, what the object of the legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to find out what it means, and not with a view to extending it to something that was not intended.” See Holmes v. Guy (1877) 5 Ch. D 901 at 905. In Knowlton v. Moore 178 U.S. 41, 20 S. Ct 747 at p.768. Justice White, while delivering the opinion of the Supreme Court of the United States, used these words which I find apposite:

“The necessities which gave birth to the Constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purpose of tracing to this source any particular provision of the Constitution in order thereby to be enabled to correctly interpret its meaning.”

To advert to the case in hand, the argument in support of such extensive jurisdiction for the Federal High Court must be set against the fact that the establishment of that court was a decision of the Constituent Assembly. The Constitution Drafting. Committee did not recommend it in its draft rather it recommended State High Courts as the only High Courts in the Federation. In its Report (Reports of the Constitution Drafting Committee Vol. 1 at p. xxxv) the Committee said:

“Consistent with our desire to simplify the judicial system, we have not made provision for the continuation of the Federal Revenue Court which was set up in 1973. Since its inception, that Court has given rise to disputes relating to its jurisdiction . . . We were informed that one of the reasons for setting up the Federal Revenue Court was because of delays in dealing with revenue causes and other matters and the need to deal expeditiously with commercial and other case. . . There may be need for having commercial and revenue divisions in some of the State High Courts so that the authorities can monitor the rate at which such cases are being disposed of and to ensure that where required more adequate arrangements are made for their disposal. . . . The Federal Revenue Courts have to deal with all matters within their jurisdiction including matters which can be dealt with by magistrates, and other subordinate courts.”

It is pertinent to add the provisions of section 185 in the Draft Constitution submitted by the Constitution Drafting Committee does not differ substantially from the present section 236 of the 1979 Constitution. The proviso which was included in the original draft of that section (which excluded appellate or supervisory jurisdiction from the High Court in respect of a Sharia Court of Appeal administering Islamic law) was removed. Also removed was sub-section 2 of the draft section dealing with the competent High Court in relation to elective offices. That draft subsection 2 is in substance what has become section 237 of the 1979 Constitution and followed the establishment of the Federal High Court by the Constituent Assembly.

Those historical facts leave me in no doubt that it was the intention of the framers of the Constitution to confer unlimited jurisdiction on the State High Courts. It was deliberate. Accordingly section 236(1) of the Constitution provides as follows:

“(1) Subject to the provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, ability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

In my view that jurisdiction will diminish with time as in addition to the jurisdiction which I have conceded in this judgment it already has under sections 230, 237 and 42 of the Constitution. The Federal High Court is conferred by the National Assembly with more jurisdiction in relation to other matters in the Exclusive and Concurrent Legislative Lists.

I would finally on this point wish to suggest that far from supporting the contention of the appellants on the issue of Federal and State Judicial power, sections 250 and 231 of the 1979 Constitution are put in their proper perspective by the historical facts to which I made reference above. Since the newly created Federal High Court (i.e. in the Constituent Assembly) had no Federal subordinate courts, it seemed logical to confer jurisdiction in Federal causes which may arise at such level on State courts. Appeal in such matters would go to the State High Courts.

I am afraid that for these reasons I am unable to accept the submissions of the learned senior counsel to the appellants on the proper meaning of section 230(1)(b). This ground of appeal also fails.

As regards the other matters in this appeal, Ademola J.C.A. in his lead judgment had set them down at p.176. I had earlier on in this judgment indicated the matters I propose to deal with and set down appellant’s ground of appeal relating to those matters. I would only wish to deal with the guarantee, admitted in the proceedings as exhibit 2, given by the second appellant to the respondent. The Court of Appeal affirmed the decision of the learned trial judge on that point. As regards the liability of the second appellant. Chief Williams had submitted that even if he was liable, the liability cannot exceed N500,000. In fact the order of the learned trial judge was for “judgment against the defendant for: … “(3) the sum of N500,000 against the second defendant as a guarantor of the first defendant with interest at the rate of 8% per annum before judgment and 4% thereafter.”

I agree that the terms of the order should be varied such that the judgment is against the second defendant (i.e. second appellant herein) for N500,000 at the rates of interest mentioned above.

As for the merits of the appellants’ case on the guarantee, the argument on exhibit 2 had been that the guarantee given by the second appellant was on behalf of Bronik Motors (a division of A. Obikoya and Sons Limited) and not on behalf of Bronik Motors Limited (first appellant) which had not been incorporated at the time the guarantee was given.

I agree with the Court of Appeal that paragraph 3 of exhibit 2 which reads as follows:

“(3) The guarantee shall be continuing security binding on the Guarantor or on each of the Guarantors and his/their executors administrators and legal representatives until the expiry of three calendar months after the receipt by the Bank of notice in writing to discontinue same from Guarantor to any of the guarantors or from his/their executors administrators or legal representatives and notwithstanding any change in the name, style or constitution of the principal”

certainly disposed of that contention. Paragraph 4 of the guarantee was also in these terms:

“(4) If the principal be a Committee or other unincorporated body which has no legal existence or which is under no legal liability to discharge obligations undertaken or purported to be undertaken by it or on its behalf this guarantee shall be valid and binding upon the Guarantor or Guarantors notwithstanding that fact and as though the Guarantor was the principal debtor or if there be more than one Guarantor as though the Guarantors were joint and several principal debtors.”

The terms of paragraphs 5, 13 and 18 of exhibit 2 also leave me in no doubt as to the liability of the guarantor to the limit agreed by the parties in exhibit 2.

For all the foregoing reasons this appeal must fail and it does fail. It is accordingly dismissed. I affirm the judgment of the Federal Court of Appeal dated 6th July, 1982. I also award N300 costs against the appellants in favour of respondents.

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SC.110/1982