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Attorney-general of Kano State (Plaintiff) v. Attorney-general of The Federation (2007) – SC

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➥ CASE SUMMARY OF:
Attorney-general of Kano State (Plaintiff) v. Attorney-general of The Federation (2007) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC 26/2006
(2007) 2 All N.L.R. 33

➥ JUDGEMENT DELIVERED ON:
2 March 2007

➥ AREA(S) OF LAW
Original jurisdiction of the Supreme Court.

➥ NOTABLE DICTA
⦿ NO JURISDICTION MAKES THE PROCEEDING A NULLITY
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 & others v Nkemdilim & others (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 fulfilment of any condition precedent to the exercise of jurisdiction.” Once there is a defect in competence, it is fatal as the proceedings are a nullity. See Ojo-Ajao & others v Popoola Ajao & others (1986) 5 NWLR (Part 45) 802 and Attorney-General Anambra State v Attorney-General of the Federation (1993) 6 NWLR (Part 302) 692. — Mohammed JSC.

⦿ STATUTE TO BE INTERPRETED IN ORDINARY AND LITERAL MEANING
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. — Mohammed JSC.

⦿ ATTORNEY GENERAL CAN BE SUED IN ALL MATTERS AGAINST THE FEDERAL GOVERNMENT – POLICE IS A SEPARATE BODY
It is not in dispute that the Attorney-General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorised agencies, arising from any act or omission complained of. (See Ozomo v Attorney-General Bendel State (1986) 4 NWLR (Part 36) 448). The Inspector-General of Police, who is involved in this case, is the head of the Nigeria Police Force in Nigeria. It is a force recognised by the State and Federal Governments of Nigeria and it’s a separate body created by the Constitution with special powers and responsibilities and can properly be sued. (See sections 214-216 of 1999 Constitution and Police Act Cap. 359 of Laws of Federation; 1990). — Kalgo JSC.

⦿ STATEMENT OF CLAIM, NOT DEFENCE, IS LOOKED AT TO DETERMINE COURT JURISDICTION
In a long line of decided authorities, it is now firmly settled that it is the Statement of Claim that is looked at in determining whether or not, a court has jurisdiction to entertain and determine any suit or matter and not at the defence. (See Chief Adeyemi & others v Opevori (1976) 9-10 SC 31; The Attorney-General, Anambra State & 13 others v The Attorney-General of the Federation & 16 others (1994) 3 NWLR (Part 335) 659; (1994) 4 SCNJ 30). — Ogbuagu JSC.

Available:  Kossen (Nig.) Limited & Anor v. Savannah Bank of Nig. Limited (1995) - SC

➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mrs A.O. Mbamali, the Director of Civil Litigation from the Federal Ministry of Justice.

⦿ FOR THE RESPONDENT
Alhaji Yusuf O. Ali.

➥ CASE HISTORY
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 February 2006 in the registry of this Court accompanied by a statement of claim claiming a number of reliefs in paragraph 31 thereof as follows, inter alia:- “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 Constitutional.

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 plaintiff’s 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.

➥ ISSUE(S) & RESOLUTION
[SUO MOTO ISSUE]

I. Whether the original jurisdiction of this Court was properly invoked by the plaintiff in the present case?

RULING: IN RESPONDENT’S FAVOUR, this Court has no jurisdiction.
A. “I have very carefully examined the plaintiff’s 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.”

B. “Not a single paragraph of the plaintiff’s 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.”

C. “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.”

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D. “From the Statement of Claim of the plaintiff, it is very clear especially paragraphs 17 and 18 that the Inspector-General of Police was directly opposed to Hisbah Board Law and its operation and in fact took certain actions against the operators. There is nothing in the whole Statement of Claim to show that the Federal Government of Nigeria, either through the President or the Hon. Attorney-General of the Federation has taken any adverse action against the operation of the Hisbah Board Law or Kano State Government itself. Paragraphs 13 and 14 of the Statement of Claim merely explained that by a letter in 2005, the President expressed some concern about the Hisbah Board operations in Kano State and later sent a delegation on a “fact finding mission” on the Hisbah law and its operation.”
.
.
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✓ DECISION:
“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 plaintiff suit No. SC 26/2006 filed in this Court on 13 December 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.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 232(1) & (2); 251(1)(p), (q) and (r); Nigerian Constitution 1999 (as amended);

➥ REFERENCED (CASE)
⦿ WHEN IS THERE DISPUTE BETWEEN THE FEDERATION & A STATE
In Attorney-General of the Federation v Attorney-General of Imo State (1983) 4 NCLR 178, 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 constituent units of the Federation; (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 of a legal right of a State in its aforesaid capacity is involved.”

Available:  Witt & Busch Limited v Dale Power Systems Plc (2007) - SC

⦿ DEFINITION OF THE WORD “FEDERATION”
In 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 Government Council or any person who exercises power or authority on its behalf . . . The meaning of the word ‘Federation’ 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.”

⦿ WHAT IS A “DISPUTE”
As to what constitutes a “Dispute”, Uwais, CJN, (Rtd) in his Ruling in the case of Attorney-General of the Federation v Attorney-General of Abia State & 35 others (supra), stated as follows:- “What constitutes a dispute under section 212 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979, which has exactly the same provisions as section 232 subsection (1) in question, had been considered by this Court in the cases of Attorney-General of Bendel State v Attorney-General of the Federation & 22 others (1981) 10 SC 1 and Attorney-General of the Federation v Attorney-General of Imo State & 2 others (1983) 4 NCLR 178. In Attorney-General of Bendel State’s case , Bello, JSC, (as he then was), stated as follows on pages 48 to 49 thereof:- ‘To invoke the original jurisdiction of this Court there must be a dispute as so qualified between the Federation and a State or between States. The issue of jurisdiction was contested on three grounds, firstly, that there is no dispute which affected the interest of the Federation and Bendel State between the plaintiff (Bendel State) and the Federation. Secondly, . . . I think the first point may be easily disposed of from the definition of the word “dispute”. The Oxford Universal Dictionary defines it as ‘the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion . . .’
Ogbuagu JSC also held as follows on page 320 thereof:- “It is well established principle of the interpretation of constitution that the words of a constitution are not to be read with stultifying narrowness – United States v Classic 313 U.S 299 and Nafiu Rabiu v The State (1980) 8-11 SC 130. The word ‘dispute’ in section 212(1) should therefore be given such meaning that will effectuate rather than defeat the purpose of that section of the Constitution. Webster’s New Twentieth Century Dictionary (2ed), provides that ‘dispute’ is synonymous with controversy, quarrel, argument, disagreement and contention”.

➥ REFERENCED (OTHERS)

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