African Newspaper v. Nigeria (1985)

[1985] 2 .
African Newspaper v. Nigeria
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1.
AFRICAN NEWSPAPERS OF NIGERIA LTD.

2.
BANJI OGUNDELE

3.
FELIX ADENAIKE

V.

THE FEDERAL REPUBLIC OF NIGERIA

SUPREME COURT OF NIGERIA

SC. 33/1984

ANDREWS OTUTU OBASEKI, J.S.C. (Presided)

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C. (Read the lead judgment)

DAHUNSI OLUGBEMI COKER, J.S.C.

SAIDU KAWU, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C.

FRIDAY, 4TH APRIL, 1985

CONSTITUTIONAL LAW – Reference under Section 259 – when made.

INTERPRETA TION OF STATUTES – Clear words in Statutes – literal rule of construction.

JUDICIAL PRECEDENT – Decision of higher courts – when given per incuriam – effect on lower courts.

PRACTICE AND PROCEDURE – Jurisdiction – Federal High Court – Scope of jurisdiction.

PRACTICE. AND PROCEDURE – Jurisdiction – whether a court has jurisdiction -factors to consider.

Issues:

1.
Whether the decision of the Supreme Court in Adesanya v. President (1981) 2 NCLR. 358 ever decided that a substantial question of law cannot be referred from a lower court to all appellate court because that question of law has been decided by the lower court in an earlier but different action between different parties and on a different cause.

2.
Whether the Federal High Court has jurisdiction to try and determine criminal matters which are not connected in any way with the matters specified in Section 7(2) and (3) of the Federal High Court Act 1973 on which the legislature has not expressly conferred jurisdiction on the Federal High Court.

Facts:

The appellants were charged on a three count indictment containing the

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following offences:-

(a)
Seditious publication contrary to Section 51(l)(c) of the Criminal Code Act Cap 42, 1958 Laws of Nigeria.

(b)
Publication of a Statement which is likely to cause fear and alarm to the public knowing or having reason to believe that such a statement is false punishable under section 59(1) of the same Criminal Code.

(c)
Publication of a Statement which is likely to disturb the public peace knowing or having reason to believe that such a statement is false punishable under Section 59(1) of the same criminal code.

The statement complained about was published in the Nigerian Tribune of 28th July, 1981 and captioned “Shagari on tight rope after broken accord; Prices for MPS increased” which according to the indictment, stated that President Shagari has personally taken over the wooing of Federal Legislators in a desperate attempt to make good NPN’s promise to go it all alone; following the breakdown of the NPN/NPP accord and that President Shagari has for a few days now been inviting members from each political party ; soliciting for assistance in passing his bills. The statement, it was alleged, also stated that the President has promised to site a federal government project in the constituency of any member who consented to the arrangement. Other rewards promised the legislators allegedly included N50,000 cash, N5,000 monthly allowance, a Mercedes Benz car and a promise of a grant of between N100,000 and N150,000 loan to each member to build his own house in his Constituency, and that a PRP member of the Aminu Kano splinter group has received his own booty of a blue Mercedes Benz car.

The charge was at the Federal High Court Lagos. Before the plea of each of the appellants was taken; their counsel took out summonses in the Federal High Court to quash the indictment on the ground of jurisdiction. Their counsel contended that the Federal High Court had no jurisdiction to hear and determine the case and that the Attorney-General of the Federation was not competent to initiate and undertake the criminal proceedings. The Chief Judge of the Federal High Court Anyaegbunam, C.J. heard and ruled on the summonses. He held that the Federal High Court had jurisdiction to hear the charges and that the Attorney-General of the Federation was competent to initiate and undertake the criminal proceedings in the Federal High Court. The appellants appealed to the Court of Appeal. The appeal was dismissed by that court, whereupon the appellants further appealed to the Supreme Court on the grounds that the Court of Appeal erred in law in failing to refer to the Supreme Court the substantial questions of law raised as to the correctness of the decision of the Court of Appeal in Federal Republic of Nigeria v. J.O. Eze (1982) 3 NCLR 259 and that the Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to hear and determine the information. In refusing the appellants application to make a reference under Section 259 of the 1979 Constitution as to the correctness of Eze’s case, the Court of Appeal gave its reasons for so doing by referring to its decision in Eze’s case as setting the question which was intended to be referred to the Supreme Court under Section 259 of the 1979 Constitution, in the instant case.

Held: (Unanimously allowing the appeal)

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1.
Under section 259 subsection 3 of the 1979 Constitution, before a question of law can be referred from the Court of Appeal to the Supreme Court, the following conditions must be satisfied:

(a)
The matter for reference must involve ‘a substantial question of law’ as to the interpretation and application of the constitution,

(b)
in which case:

(i)
the Court of Appeal may refer the matter to the Supreme Court and

(ii)
the Court of Appeal shall, if any party to the proceedings so requests; refer the matter to the Supreme Court.

2.
What constitutes a substantial question of law is for the court making the reference to decide but the court may be guided by the formulation of the Supreme Court in GAMIOBA v. ESEZI II (1961) 1 All MLR. 584 that; the question of law must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced. The question of law must also be one which must necessarily be decided in the cause or matter and not one which may prove unnecessary to decide, and the plaintiff must have locus standi in the case.

3.
The question of law in this case being the challenge to the jurisdiction of the Federal High Court is a matter involving a substantial question of law; because if the court has no jurisdiction it is incompetent to embark upon the trial.

4.
What was decided in Adesanya v. President (1981) 2 NCLR 358 with regard to Constitutional references are

(a)
that once a decision on a substantial question of law is given by the Court of Appeal, the only way to obtain review of that decision is by way of appeal to the Supreme Court; and not by a constitutional reference under Section 259(3) of the 1979 Constitution,

(b)
that where a lower court intends to make a reference of a substantial question of law to the higher court, the lower court must not first give its opinion on the question of law involved before referring the matter to the higher court,

(c)
the phrase “opinion or decision of the court stating the case” which appears in Order 6 Rule 3 of the Supreme Court Rules 1977 (now Order 5 Rule 3 of the Supreme Court Rules 1985) refers to opinion on facts and not opinion on law; otherwise the effect would be to render ineffective the purport of section 259, and would make the reference pointless.

5.
It was no where decided in Adesanya v. President (1981) 2 NCLR. 358 that once the Court of Appeal had expressed an opinion or given a decision in any other case sometime in the past, on an interpretation of section 7 of the Federal High Court Act 1973, it could no more refer any subsequent matter to the Supreme Court on a substantial question on law on the same section 7 of the Federal High Court Act 1973.

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6.
The purpose of a reference under section 259(3) of the 1979 Constitution is a short, quick, inexpensive procedure when compared with the procedure of appeal; by which the Court below and the parties are. able to secure the binding legal opinion of the highest court of the land on a legal issue without the necessity of wading through the procedural jungle of an appeal.

7.
When the Supreme Court held in Adesanya v. President (1981) 2 NCLR. 358 that a decision already made by the Court of Appeal cannot be referred to the Supreme Court for another decision under section 259 of the 1979 Constitution, the Supreme Court was referring to a decision in the particular proceedings in which the reference was made and not to a decision taken in a different case between different parties.

8.
The gravamen of the jurisdiction of the Federal High Court concerns matters connected with or pertaining to the revenue of the Government of the Federation as may be spelt out by the National Assembly; but in addition to jurisdiction over revenue matters; the Federal High Court has such other jurisdiction as may be given to it by the National Assembly from those matters over which the National Assembly has power to make laws; (see section 230 of the 1979 Constitution).

9.
In the 1979 Constitution, the jurisdiction of the Federal High Court was not left to be implied like the jurisdiction of the State High Court but was specifically made ‘to be conferred’ or to be prescribed.

10.
The prescribed or conferred jurisdiction of the Federal High Court is contained in Section 7(1) and (2) of the Federal Revenue Court Act of 1973 which statute is an existing law under section 274 of the 1979 Constitution.

11.
The decision of the Supreme Court in MANDARA v. ATTORNEY-GENERAL OF THE FEDERATION (1984) 1 SCNLR 311 held that subsection 3 of section 7 of the Federal Revenue Court Act 1973 does not create additional jurisdiction or another head of jurisdiction different from those in subsections (1) and (2).

12.
The decisions of the Supreme Court in BRONIK MOTORS v. WEMA BANK (1983) 1 SCNLR. 296 and MANDARA v. ATTORNEY-GENERAL OF THE FEDERATION (1984) 1 SCNLR. 311 have put to rest any doubt which might have existed before as to the limits of the jurisdiction of the Federal High Court, Civil or Criminal.

13.
The Federal High Court in the instant case had no jurisdiction to hear the charges brought against the appellants; and the Court of Appeal erred in law to have held that the trial court had jurisdiction to hear the charges; because there is no law which has conferred jurisdiction on the Federal High Court in respect of the offences in the information,

14.
Where the words used in a Statute are direct and straight forward and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words.

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15.
When a Court is deciding whether it has jurisdiction or not over a matter before it, it should be guided by the following considerations:

(i)
Judges ought not to encroach or enlarge their jurisdiction because by so doing the Courts will be usurping the functions of the legislature.

(ii)聽聽聽聽Nothing shall be intended to be out of the jurisdiction of the Superior Court; but that which specially appears to be so, and on the contrary nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged.

(iii)聽聽聽Courts are creatures of statutes and the jurisdiction of each Court is 聽 聽 聽 therefore limited and circumscribed by the Statute creating it.

(iv)
The Court is not hungry after jurisdiction.

(v)
Judges have a duty to expound the jurisdiction of the Court but it is not part of their duty to expand it.

(vi)
聽A court cannot give itself jurisdiction by misconstruing a Statute:

16.
It is settled law that the issue of jurisdiction of a Court can be raised at any stage of the proceedings.

17.
The Court of Appeal in the instant case, could not by misconstruing Section 230(l)(b) of the 1979 Constitution, as it did in EZE’s case confer on the Federal High Court extra and additional jurisdiction.

18.
A lower court is bound by its own judgment until overruled by a higher court in the judicial hierarchy.

19.
A lower court is bound by the decision of a higher court even when that decision was given erroneously.

Nigerian Cases Referred to in the Judgment:

Adesanya v. President (1981) 2 NCLR. 358

Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 296

Federal Republic of Nigeria v. Eze (1982) 3 NCLR 259

Gamioba v. Esezi II (1961) All NLR 584

Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311

Senate v. Tony Momoh FCA/L/45/81 of 19th July, 1982

Shugaba A. Darman v. Fed. Ministry of Internal Affairs (1982) 3 NCLR 915

Foreign Cases Referred to in the Judgment:

Barrs v. Bethell (1981) 3 WLR. 874

King v. Justice of Devon (1819) 1 Chit Rep.37

In re Montagu (1897) L.R.I.C.D. (1897) 693

Peacock v. Bell (1667) 1 Sound 74

Queen v. County Court of Lincolnshire (1887) L.J. (W.S.) 57 QBD. 137

Nigerian Statutes Referred to in the Judgment:

Nigerian (Constitution) Order in Council 1960 L.N. 159 of 1960

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Nigerian Constitution, 1963 Section 115

Nigerian Constitution 1979, Sections 42, 160, 230, 230(1)(a)(2),聽237(2)(a), 250, 259, 259(3)

Federal High Court Act, Sections 7, 7(l)(a)(b)(c), 7(2)(3), 8, 63(3) Criminal Code Act Cap 42, Sections 41(a), 44(a)(b), 46(l)(b), 51(l)(c) and 59(1)

Appeal:

This was an appeal against the decision of the Court of Appeal sitting in Lagos (Kazeem, Mohammed and Kutigi, JJ.C.A.) dismissing the appeal of the present appellants against the order of the Federal High Court (Anyagbunam, C.J.) that he had jurisdiction to try the appellants.

The Supreme Court allowed the appeal.

History of the Case:

Supreme Court:

Appeal No: SC. 33/1984

Date of Judgment: 4th day of April, 1985

Names of Justices in the Appeal: Obaseki, J.S.C., Aniagolu, J.S.C., (Read the Lead Judgment), Coker, J.S.C., Kawu, J.S.C.,聽and Oputa, J.S.C.

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Lagos

Names of Justices in the Appeal: Kazeem, J.C.A. (Read the Lead Judgment), Uthman Mohammed, Idris Legbo Kutigi, JJ.C.A.

Date of judgment: 17th day of March, 1983.

High Court:

Name of the High Court: Federal High Court, Lagos

Name of Judge: Hon. Justice F.O. Anyaegbunam, C.J.

Date of Decision: 30th day of September, 1981

Charge No: FHC/L/206C/81

Counsel:

G.O.K. Ajayi, S.A.N. (with him Miss Ayo Ogunsola, Dolu Segun and Ademola Folarin) – for the 1st Appellant.

J. Olu Awopeju (with him, A.O.A. Awopeju) – for the 2nd Appellant.

Olaniwun Ajayi – for the 3rd Appellant.

A. A. Oladapo, Deputy D.P.P. (with him Mrs. E.O. Williams-Daudu) – for the Respondent.

ANIAGOLU, J.S.C. (Delivering the Lead Judgment): The simple issue in this appeal is the jurisdiction of the Federal High Court to try the appellants on a three-count charge brought against them, in the said Federal High Court, by the Director of Public Prosecutions of the Federation, on 10th September 1981.

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The three counts were for:

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

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

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

The full charges with their particulars read:

“COUNT 1

“That you, (1) the African Newspapers of Nigeria Limited, (2) Banji Ogundele and (3) Felix Adenaike, on or about the 28th day of July, 1981, at Lagos, in the Lagos Judicial Division of the Federal High Court, published a seditious publication in “the Nigerian Tribune” newspapers of July, 18, 1981, and more particularly in the publication captioned “Shagari on tight-rope after broken accord: Price for MPs increased”, to wit:

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

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

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

“Other terms include:

N50,000 cash;

“Cash benefit of foreign currency;

N5,000.00 monthly allowance;

“the provision of a Mercedes Benz car and not a 505 (Peugeot) saloon any more and

“a promise of granting between N100,000 and N150,000 loan to each member to build his own house in his constituency.

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

“the sources added that the car has not even been registered.”

and thereby committed an offence punishable under section 51(l)(c) of the Criminal Code Cap. 42 Laws “of the Federation of Nigeria.

“COUNT2

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

“The president, Alhaji Shehu Shagari, has personally taken over the wooing of federal legislators in a desperate attempt to

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make good NPN’s promise ‘to go it all alone’, following the breakdown of the NPN/NPP accord.

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

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

“Other terms include:

“N50,000.00 cash;

“Cash benefit in foreign currency;

“N5,000 monthly allowance;

“the provision of a Mercedes Benz car and not a 505 (Peugeot) saloon any-more, and

“a promise of granting between N100,000 and N150,000 loan to each member to build his own house in his constituency.

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

“The sources added that the car has not even been registered”, “which statement is likely to cause fear and alarm to the public knowing or having reason to believe that such a statement is false and thereby committed an Offence punishable under section 59(1) of the Criminal Code Cap.42 Laws of the Federation of Nigeria.

“COUNT3

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

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

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

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

“Other terms include:

“N50,000 cash;

“N5,000 monthly allowance;

“the provision of a Mercedes Benz car and not a 505(Peugeot) saloon any more and

“a promise of granting between N1Q0,000 and N150,000 loan to each member to build his own house in his constituency.

“Our sources said that a PRP member of Aminu-Kano splinter

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group has, in fact, received his own booty of a blue Mercedes parked now in Victoria Island.

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

DATED this 10th day of September 1981

(SGD.) BEN NWAZOJIE

Director of Public Prosecutions

of the Federation”

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

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

“SUMMONS

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

GROUNDS:

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

(i)
The National Assembly Federal Government has no powerto create the offences charged in the information.

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

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

PARTICULARS

The provisions of S.51 of the Criminal Code contained in the Criminal Code Act Cap. 42 Laws of the Federation 1958 take聽effect as a State Law having regard to S.274 and the 2nd Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1979 and as such the Attorney-General of the Federation or the Director of Public Prosecutions is not competent to institute criminal proceedings in respect thereof.

Dated this 7th day of September, 1981. This Summons was

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taken out by G.O.K. AJAYI & CO. Solicitors for the 1st Defendant.

G.O.K. AJAYI, S.A.N.

COUNSEL FOR THE 1ST DEFENDANT

UNITY HOUSE (14TH FLOOR)

37 MARINA, LAGOS

FOR SERVICE ON:

The Attorney-General of the Federation,

Federal Ministry of Justice,

New Secretariat,

Ikoyi.”

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

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

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

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

“1. 聽聽聽聽ERROR IN LAW

The Federal Court of Appeal erred in law in failing to refer to the Supreme Court the substantial questions of law raised as to the correctness of the decisions of the Federal Court of Appeal in the case of Federal Republic of Nigeria 鈥瀡. J. O. Eze (1982) 3

N.C.L.R. 259; FCA/L/64/81 delivered oil 18/9/81 when:

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

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

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

2.
ERROR IN LAW

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

(ii)
the subject-matter thereof did not fall within the ambit of the provisions of S.7(2) and (3) of the Federal High Court Act; the Federal High Court had no jurisdiction to determine any, criminal cause or matter not falling within the aforesaid S.7(2) and (3) but which is within the legislative competence of the

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National Assembly:

(iii)
the case of Federal Republic of Nigeria v. J. O. Eze was wrongly decided in so far as it had laid it down that the Federal High Court has jurisdiction to hear and determine all matters within the legislative competence of the National Assembly.”

The Federal High Court, after setting out in considerable details, the argument of Counsel before it, came to its decision that it had jurisdiction to entertain the case. In fairness to that court, the learned Chief Judge held himself bound (as he was bound to hold having regard to the principle of the binding force of judicial precedents) by the decision of the Court of Appeal, in Federal Republic of Nigeria v. Jonah Onyebuchi Eze (Trading under the name and style of J.聽Eze and Sons) (1982) 3 N. C. L. R. 259), handed down on 18th September 1981. The Chief Judge (as he pointed out in his judgment) had held in Eze’s case that his court has no jurisdiction but his judgment was over-turned by the Court of Appeal, in its said decision that the Federal High Court had jurisdiction. He said:

‘This section came up recently for “consideration before the Federal Court of Appeal in the case of Federal Republic of Nigeria and Jonah Onyebuchi Eze (Trading under the name and style of J. 0. Eze & Sons) FCAIL167181 unreported. It was a charge involving arms. The case initially came before me. On an objection raised by G. 0. K. Ajayi S. A. N., on a question of the Federal High Court to adjudicate on counts pertaining to Arms and Amunitions, I held that this court had no jurisdiction to try them. Section 230 of the Constitution notwithstanding. The Federal Court of Appeal held otherwise.”

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

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

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

The Court of Appeal for its part, held that Eze’s case was rightly

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decided and had to chide Mr. G.O.K. Ajayi, S.A.N., for saying that Eze’s case was wrongly decided when, as they said, he never appealed against that judgment. At page 85 of the record the court took on Mr. G.O.K. Ajayi in these words:

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

The Court concluded and held that

“In the circumstances, I am therefore of the opinion that the Attorney-General of the Federation or any officer of this Department has power to prosecute for offences under part II of the Criminal Code Act which includes Section 51 (l)(c) and 59(1) of the Criminal Code under which the appellants were charged.” The lead judgment which was written by Kazeem, J.C.A., (as he then was) was concurred with by the other two Justices of the Court of Appeal, Mohammed and Kutigi, JJ.C.A.

Appellants had applied to the Court of Appeal under S.259(3) of the 1979 Constitution for the Court to refer the issue of the contested jurisdiction of the Federal High Court to entertain the case, to the Supreme Court for determination. The Court refused to refer the issue to the Supreme Court on the ground that it had already held in the said Federal Republic of Nigeria v. Jonah Onyebuchi Eze (supra) that the Federal High Court had jurisdiction, and having so held, the Court could not refer the question to the Supreme Court by reason of the fact that in Adesanya v. The President of the Federal Republic of Nigeria & Anor. (1981) 1 All N.L.R. (Part 1) 1 the Supreme Court had held that where the Court of Appeal was minded to refer a question of law to the Supreme Court it should not proceed to decide the matter and then refer it, since once the matter has been decided, the procedure for bringing the matter before the Supreme Court would be by appeal.

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It should refer it without deciding on it. Counsel submitted that this line of argument, taken by the Court of Appeal, was a misinterpretation of the decision of the Supreme Court in ADESANYA.

Further in their briefs, Counsel submitted that the Federal High Court聽had no jurisdiction to entertain criminal matters other than those arising out of matters set out in 5.7 of the Revenue Court Act by which the original jurisdiction of the court was founded and that the decisions of this Court had made it abundantly clear that the Federal High Court had no general criminal jurisdiction to try offences contained in the Criminal Code Act, whether or not their prosecution was initiated by the Federal Attorney-General.

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

Sub-section 3 of S.259 deals specifically with references from the Court of Appeal to the Supreme Court and reads:

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

聽聽聽聽The two immediately previous Constitutions of Nigeria carried provisions which were in pari materia with those of S.259 of the 1979 Constitution. The Nigeria (Constitution) Order in Council, 1960, L.N. 159 of 1960, provided for “The Constitution of the Federation of Nigeria”. Section 108 thereof provided for reference to the “Federal Supreme Court” of questions as to interpretation of that Constitution, from Courts subordinate to the High Court to the High Court and from the High Court to the Federal Supreme Court. In identical terms, the Constitution of the Federation 1963, No.20 of 1963, in its S.115 provided for references from subordinate Courts to the High Court and from the High Court to the Supreme Court. In all the provisions of the three Constitutions it was required that the matter for reference:

(i) 聽 聽 聽must involve “a substantial question of law”

(ii) 聽聽聽聽in which case:

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

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

There is no question that the matter of the jurisdiction of the Federal High Court challenged in these proceedings was a matter involving a substantial question of law, for, if the court had no jurisdiction then it was incompetent to embark upon the trial. The issue of what is a substantial question of law is, of course, for the court to decide and in doing so a guide may be gathered firstly from the formulation made by the Federal Supreme Court in OTUGBOR GAMIOBA And Ors. v. ESEZI II, the Onodje of Okpe And Ors.

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(1961) All N.L.R. 584 at 588 where the court stated that:

“We shall not attempt a complete definition of what amounts to a substantial question of law, but it must clearly be one on which arguments in, favour of more than one interpretation might reasonably be adduced.”

secondly, the question must be one which must necessarily be decided in the cause of matter and not one which may prove unnecessary to decide (WEED v. WARD (1889) 40 Ch.D.555) and thirdly, the plaintiff, where it is a civil case, must have locus standi in the cause BARRS And Ors. v. BETHEL And Ors. (1981) 3 W.L.R. 874).

The present matter on appeal, being one involving a substantial question of law, and the three parties in the case having applied through their Counsel for the matter to be referred to the Supreme Court, ought not the Court of Appeal to have acceded to their request? The Court of Appeal answered this question in the negative by reason, as the Court stated, of the decision of the Supreme Court in ABRAHAM ADE ADESANYA v. 1. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA, 2. THE HON. JUSTICE VICTOR OVIE-WHISKEY (1981) 5 S.C. 112 – a case in which the Senator-plaintiff challenged the constitutionality of the appointment of the 2nd defendant (the Hon. Justice Ovie-Whiskey) by the 1st defendant-(The President) as the Chairman of the Federal Electoral Commission. The main thrust of the argument in the case was on the locus of the plaintiff, who suffered no wrong, anticipated or threatened, by the appointment.

But the nature of the ‘reference’ made by the Court of Appeal by which the matter came before the Supreme Court became a subject of deliberate comment. What the Court said about this was ventilated by Fatayi – Williams, C.J.N., at pp.120,122 – 124; and by Nnamani, J.S.C. at p. 120:

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

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

“Before proceeding further, I would like to express my own view

Of the Scope and extent of the provisions of section 259(3) of聽procedure laid down in Order 6 Rules l and 3 of the Supreme Court Rules when any substantial point of law is being referred to the Supreme Court by a lower court by virtue of section 259(3).

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

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

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section. Once a decision “on the substantial question of law” is given by the Federal Court of Appeal, the only way to obtain a review of that decision is by way of appeal to the Supreme Court.

With respect to the procedure applicable to a reference made under section 259(3), the provisions of order 6 rules 1 and 3 to which I have referred earlier will apply. A close scrutiny of the provisions of rule 1 together with the format and working of Form 10 (the appropriate Form) referred to therein show that it is the “question of law” and not any answer given to such a question that is being referred by the lower court to the Supreme Court for determination. Admittedly, the provisions of rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding which a lower court, in the course of stating a case when making a reference to a higher court, can make is one “of fact”, not law. In the same context, the words-

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

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

The other learned Justices of the Supreme Court agreed with the opinion of Fatayi-Williams, C.J.N., on the point. Nnamani, J.S.C., apart from merely agreeing, expressed this opinion on the issue at page 182

“I have had the advantage of reading in draft the judgment just delivered by the learned Chief Justice of Nigeria and I agree with his conclusions on the main issue raised before us in (his appeal. I particularly agree with him that the wards of Section 259(3) of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as the Constitution) are quite clear and that the Federal Court of Appeal was with all due respect in error in writing an opinion on the question of law it was to refer to this Court.

I share his view that “opinion or decision (if any) of the court stating the case” which appear in Order 6 Rule 3 of the Supreme Court Rules, 1977mustth&interpreted to limit the lower court to an opinion on facts and not law. See Gamioba v. Esezi (1961) All NLR. 484 at 589). The rule is not without difficulty in interpretation but I too think that if it were to be given a different interpretation it would not only be inconsistent with the provisions of Section 259(3), but would make the reference pointless.”

The above was the opinion and decision of the Supreme Court which the Court of Appeal interpreted to mean that once that court had expressed an opinion, or a given decision, in any other case some in the past (such as in the Eze’s case) on an interpretation of S..7 of the Federal Revenue Court

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Act, it could no more refer any subsequent matter to the Supreme Court on a substantial question of law on the said S.7.

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

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

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

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

the Court was referring to a decision in the particular proceedings in which the reference was made, and not to a decision taken in a different case between different parties.

We have come to the second question of this appeal, namely, whether the Federal High Court had jurisdiction.

The jurisdiction of the Federal High Court had come for close examination by this Court in a number of cases. The starting point in a consideration

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of the jurisdiction of that Court must be with S.230(1) of the 1979 Constitution. That section makes the jurisdiction subject to the provisions of the 1979 Constitution and grant it jurisdiction under 3 broad headings:

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

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

C.
“such other matters as may be prescribed in respects of which the National Assembly has power to make laws” – (S.230(l)(b).

It is important to note the essential words in the three broad headings.

Under “A” – S.230(l)(a) – the essential words are:

“as may be prescribed.”

Under “B” – S.230(i) -the essential words are:

“as may be conferred upon it”, while

Under “C” – S.230(l)(b) – the words are:

“as may be prescribed.”

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

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

and

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

It would then be seen that in the 1979 Constitution the jurisdiction of theFederal High Court was not left to be implied (unlike State High Courts) but was specifically made “to be conferred” or “to be prescribed.” The pre-scribed or conferred jurisdiction of the Court is as contained in the Federal Revenue Court Act, 1973, section 7 subsections (1) and (2) which became the”existing Law” under S.274 of the 1979 Constitution. This Court has already held in ALHAJ1 ZANNER MANDARA v. THE ATTORNEY-GENERAL OF THE FEDERATION (1984) 4 SC. 8 that sub-section (3) of the said S.7 has not created additional jurisdiction, or another head of jurisdiction different from those in subsections (1) and (2). The Supreme Court was, in that case, dealing with the jurisdiction of the Federal High Court with emphasis on its criminal jurisdiction.

Earlier, in BRONIK MOTORS LTD. And Anor. v. WEMA BANKLTD. (1983) 6 SC. 158, in a fairly detailed judgment, this Court examinedthe jurisdiction of that court with emphasis on its civil jurisdiction and cameto the decision that as against the High Courts of the States, it was the Federal High Court that had limited jurisdiction in the sense that

(i)
it had only so much of jurisdiction as conferred expressly by”existing laws” as defined in S.274(1) of the 1979 Constitution;

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

(iii)
such other jurisdiction as may be conferred on it by future legislation

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of the National Assembly under Section 230 of the said Constitution.

Whatever doubts may have existed before, as to the limits of the jurisdiction of the Federal High Court – civil or criminal (see: in addition to EZE’s case the lengthy discuss by the Court of Appeal in THE FEDERAL MINISTER OF INTERNAL AFFAIRS And Ors. v. SHUGABA ABDURAHAMAN DARMAN (1982) 3 NCLR. 915) – have now been put to rest by those decisions of this Court in BRONIK and MANDARA (omni supra).

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

“In view of these weight decisions of the Supreme Court in the above-mentioned cases the respondent admits that the issue in (his appeal has been overtaken by these decisions and considers that it will be an exercise in futility to continue to press the matter further.”

1 agree with him. Wise and experienced counsel usually know when to throw in the towel and end the contest.

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

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

OBASEKI, J.S.C.; After hearing the submissions of counsel for the parties to this appeal on the 17th day of January, 1985,1 (in concurrence with my learned brothers) allowed this appeal, struck out the charge, discharged the appellants and reserved my reasons for so doing. I now proceed to give my reasons, I shall be adopting the reasons for judgment just delivered by my learned brother Aniagolu, J.S.C. However, for the purpose of emphasis, I would add the following comments and observations.

The information against the appellants laid before the Federal High Court by the Director of Public Prosecutions on the 10th day of September, 1981 charged the appellants in each of the three counts with the offence of聽(l)聽seditious publication contrary to section 51(l)(c) of the Criminal Code Cap 42 Laws of the Federation 1958 as amended, (2) publication of false news with intent to cause fear and alarm to the public contrary to section 59(1) of the Criminal Code Cap 42 laws of the Federation 1958 as amended and (3) publication of false news likely to disturb public peace contrary to section 59(1) of the Criminal Code Cap 42 Laws of the Federation 1958 as amended.

The three appellants by summons before their trial, objected to the jurisdiction of the Federal High Court and prayed that the information be quashed. The grounds of objection stated were

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

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

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

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

Particulars

The provisions of section 51 of the Criminal Code contained in the Criminal Code Act Cap 42 Laws of the Federation 1958 take effect as a State law having regard to section 274 and the 2nd Schedule Part 1 of the Constitution of the Federation or the Director of Public Prosecution is not competent to institute criminal proceedings in respect thereof.

After hearing submissions of counsel for the parties, the learned Chief Judge of the Federal High Court overruled the objections in a considered Ruling. Their appeal against the Ruling to the Court of Appeal was unsuccessful. They have now appealed to this Court.

Counsel to the appellant, Messrs. G.O.K. Ajayi, S.A.N. for the 1st appellant, J. Olu Awopeju for the 2nd respondent and Olaniwun Ajayi for the 3rd appellant filed their briefs of arguments of the appellants in support of their contention. Counsel for the respondent in reply duly filed the respondent’s brief of argument in which he conceded the issue of jurisdiction.

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

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

“The question which this Court is being requested to refer to the Supreme Court in this matter for determination by virtue of the provisions of section 259(3) of the Constitution of the Federal Republic is whether section 230 of the said Constitution operates to confer jurisdiction on the Federal High Court in all matters

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within the legislative competence of the National Assembly. This question has already been answered in the case of J.O. Eze v. Federal Republic of Nigeria FCA/L/67/81. Moreover, this court this Court can be requested to refer any matter by virtue of section 259(3) of the Constitution to the Supreme Court among which is the fact that the issue to be referred has not yet been decided by a binding decision of this Court. That is not the case here.”

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

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

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

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

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

It does not matter if the Court of Appeal has held a view of the question in another matter disposed of by it on an earlier occasion. So long as the Supreme Court has made no pronouncement on the question in any of the matter it has disposed of, the Court of Appeal is under duty to make the reference as the provisions are couched in mandatory terms.

The Adesanya’s case did not decide otherwise. This is plain from the lead judgment delivered by Fatayi-Williams, C.3.N. (as he then was). It should be borne in mind that in the Adesanya’s case the Court of Appeal decided the point before making the reference and this Court disapproved of such a procedure as it is definitely against the express provisions of the law and proceeded to hold that where the Court of Appeal has given its decision on the

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matter the question of interpretation or application of the Constitution in the matter can only be brought for consideration of the Supreme Court in an appeal properly brought before it. Hence, Fatayi-Williams said in the Adesanya’s case (supra) at pages 122,124:

“It cannot be disputed that what can be referred to the Supreme Court for a decision under section 259(3) of the Constitution is:

any question as to the interpretation or application of the Constitution which involves a substantial question of law.

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

With respect to procedure applicable to a reference made under section 253(9) the provisions of Order 6 Rules 1 and 3聽to which I have referred earlier will apply ………………….. Admittedly,聽the provisions of Rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding a lower court in the course of stating’ a case when making a reference to a higher court can make is one of fact and not of law. In the same context, the words:

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

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

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

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

KAWU, J.S.C: On the 17th day of January, 1985, we allowed this appeal and

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reserved our reasons for doing so till today. I have had the advantage of reading, in draft, the reason for judgment just read by my learned brother, Aniagolu, J.S.C. I am in entire agreement with the said reasons and respectfully adopt them as mine.

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

“In view of these weighty decisions of the Supreme Court (viz.Bronik Motors Ltd & anor v. Wema Bank Ltd. and Mandara y.The Attorney-General of the Federation in the above-mentionedcases, the Respondent admits that .the issue in this appeal hasbeen overtaken by these decisions and considers that it will be anexercise in futility to continue to press the matter further.”

In view of the fact that the Respondent was not opposing the appeal and inview of the other further weightier and more Substantial reason, that theissue in the appeal, namely, the competence of the Federal High Court toentertain suits outside the compass and contemplation of section 7 of theFederal High Court Act No. 13 of 1973 had already been adjudicated uponby the Supreme Court, I allowed the appeal and indicated that I will give myreasons for allowing the appeal today, 4th April, 1985.

I have had the privilege of reading in draft the leading reasons for judg-ment just delivered by my learned brother Aniagolu, J.S.C. I agree with hisconclusions.

Mr.Oladapo, learned counsel for the Respondent, in the conclusion tohis brief, conceded, and quite rightly in my view, that no useful purpose willbe served in “pressing the matter further”. The appellants were arraignedbefore the Federal High Court on three counts of:

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

(ii)
Publishing a false Statement with intent to cause fear and alarmto Section 59(1) of the same Criminal Code.

(iii)
Publishing a statement likely to disturb the public peace contraryto Section 59(1) of the same Criminal code.

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

Before the actual trial began, the appellants appealed to the Court of Appeal – Lagos Division – on grounds alleging that the jurisdiction conferred upon the Federal High Court Act is confined and limited only to criminal causes and matters incidental to and arising out of matters listed in and encompassed by Section 7(1) of the said Federal High Court Act. The Court- of Appeal (Kazeem, J.C.A. (as he then was), Mohammed, J.C.A. and Kutigi, J.C.A. concurring) delivered its judgment on 17/3/83 holding that

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The appeal lacks merit and that their judgment in Eze’s case supra was binding on them. Kazeem J.C.A. (as he then was) in the leading judgment observed:

“I am still firmly of the opinion that Eze’s case was rightly decided. Consequently, I hereby hold that the Court has jurisdiction to try the offence under Section 51(l)(c) and 59(1) of the Criminal Code.”

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

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

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

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

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

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

1.
Judges ought not to encroach or enlarge their jurisdiction because by so doing the Courts will be usurping the functions of the Legislature – per Holt C.J. in Ashby v. White (1703) Lord Raym 938.

2.
Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged: Peacock v. Bell and Kendall (1667)1 Sound 74′.

3.
Although the Courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation –

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Abbott, C.J. The King v. Justices of Devon (1819) 1 Chit Rep. 32.

Courts are creatures of Statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the Statute creating it.

4.
The Court is not hungry after jurisdiction 鈥� Sir Williams Scott. The Two Friend (1799). I.C: Rob. Ad Rep. 280.

5.
Judges have a duty to expound the jurisdiction of the Court but it is not part of their duty to expand it – Kekewich J. in In re Montagu (1897) LR.l C D. (1897, p.695.

6.
A Court cannot give itself jurisdiction by miscontruing a Statute – Pollock, B. Queen v. County Court of Lincolnshire and Dixon (1897 L.J. (N.S.)57 Q.B.D. 137).

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

i.
That Section 230(1) of the Constitution read along with Section 7 of the Federal High Court Act 1973 definitely conferred jurisdiction on the Federal High Court with respect to matters connected with or pertaining to revenue of the Government of the Federation.

ii 聽聽聽聽That Section 230(l)(b): of the. 1979 Constitution extended the scope of the jurisdiction of the Federal High Court beyond those already provided for in Section-7 of the Federal High Court Act 1973.

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

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

Was the Court of Appeal right or wrong in its construction of Section 230(l)(b) of the Constitution?

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

The next case which considered the jurisdiction of the Federal High Court was Bronik-Motors Ltd. and anor. v. Wema Bank Ltd. (1983) 1 SCNLR. 2%. In Bronik’s case the suit was filed in the High Court of Lagos State. To that extent Bronik was not a direct frontal attack on the jurisdiction of the Federal High Court, it was rather a flanking movement. In that

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case, both in the trial Court and the Court of Appeal the jurisdiction of the Federal High Court was not an issue. That came incidentally and for the first time in the Supreme Court where the Defendants/Appellants filed inter alia a ground of appeal complaining that: –

“The Federal Court of Appeal and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the Federal High Court and not in the Lagos High Court.”

Particulars of Error

(a)
Section 230(1) of the Constitution of the Federal Republic of Nigeria confers jurisdiction in respect of all matters in the Exclusive/Legislative List in the Federal High Court.

(b)
In the alternative, Section 7 of the Federal High Court Act(Sic) confers jurisdiction in respect of “civil matters … banking… connected with or pertaining to … banking” on the Federal High Court.

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

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

i.
The Federal High Court has limited jurisdiction in the sense that it has only so much of the jurisdiction conferred expressly by “existing laws,” which exist as Acts of the National Assembly under Section 230(2) and also under Specific Sections of the 1979 Constitution as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230 of the 1979 constitution.

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

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

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

It is trite law that the issue of jurisdiction can be raised at any time and at any stage of the proceedings. It can be raised for the very first time in the Supreme Court. That would not preclude the court (the Supreme Court) from considering it. The decision of this Court in Bronik Motors Ltd. (supra) regarding the jurisdiction of the Federal High Court very considerably diluted the Court of Appeal’s decision in Eze’s case, leaving the Federal High Court only with the jurisdiction expressly conferred on it by section 7

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of the Federal High Court Act 1973 and any other jurisdiction which may in future be conferred on it by any law validly made pursuant to section 230(l)(b) of the 1979 Constitution. With regard to the present appeal, my only observation is that as far as I know, no law has been validly made conferring criminal jurisdiction on the Federal High Court to try cases of sedition under section 51(l)(c) of the Criminal Code or Seditious Publication under Section 59(1) of Criminal Code Cap.42 of 1958.

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

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

It is to be noted that in the present appeal, the appellants were also charged with offences under Sections 51(l)(c) and 59(1) of the same Cap.42 of 1956 In Mandara’s case (supra) Sowemimo C.J.N. made incisive attack on any attempt to extend by misconstruction of the Constitution, the jurisdiction of the Federal High Court formerly known as and called the Federal Revenue Court:-

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

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

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

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

聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽”Error in Law

The Federal Court of Appeal erred in law in failing to refer to the Supreme Court the substantial question of law raised as to the correctness of the decision of the Federal Court of Appeal in the case of Federal Republic of Nigeria v. I. O. Eze (1982)3 N.C.L.R. 259; FCA/L/64/81, delivered on 18/9/81 when:

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

ii.
Judges of the Federal Court of Appeal had conflicting views on the effect of the decision in Eze’s case on two other cases decided by the same Court.

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

Difficult problems arise here.

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

2.
A court is bound by its own judgment until over-ruled by a higher court in the judicial hierarchy.

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

On 15th June 1982, Uche Omo, J.C.A. in Minister of Internal Affairs v. Shugaba Abdurrahman Darman (1982) N.C.L.R. 915 at p.922 expressed very strong reservations about (if not an outright rejection of) the soundness of the decision of the Court of Appeal Eze’s case. He said inter alia:-

“It must be difficult to find a clearer case of using rules of interpretation to obscure the plain meaning of the words of a Constitution. At the time when the Constitution was passed into law, the

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National Assembly had not begun functioning and the plain meaning of the words “as may be prescribed” obviously refers to its role in future. It cannot be otherwise. Section 230(l)(a) which uses the same phrase attaches it to the Legislative power in revenue matter; a process not yet begun then. Any future interpretation, which is the plain meaning of the phrase, cannot possibly defeat the principle on which the Constitution is based or the obvious ends it is designed to serve. All that it required is for the National Assembly to prescribe by an Act the matters in respect of which the Federal High Court should exercise jurisdiction. It is this power of legislation that would appear to have been circumvented, and in my respectful view, unnecessarily so, by the decision under consideration” (Eze’s case).

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

With the above as preamble, I will now consider Section 259(3) of the 1979 Constitution dealing with “References of questions of law”.

聽聽聽聽Section 259(3) of the 1979 Constitution of the Federal Republic of Nigeria stipulate:-

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

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

The question which this Court is being requested to refer to the Supreme Court in this matter for determination by virtue of the provisions of Section 259(3) of the 1979 Constitution of the Federal Republic of Nigeria is whether the provisions of S.230 of the said Constitution operates to confer jurisdiction on the Federal High Court in all matters within the legislative competence of the National Assembly. This question has already been answered in the case of J. O. Eze v. Federal Republic of Nigeria FCA/L/64/81. Moreover, this Court has already given a guideline in Tony Momoh’s case (1982) as to when this Court can be requested to refer any matter by virtue of Section 259(3) of the 1979 Constitution to the Supreme Court, among which is the fact that the issue to be referred has not yet been decided by a binding decision of this Court, that is, not the case here. Further in Senator Adesanya’s case (1981) All. N.L.R., the Supreme Court has also given a warning that in any matter in which this Court is

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requested to refer to them for determination, it should not proceed to decide the matter Afortiori, it becomes unnecessary in my view to refer the question again to the Supreme Court for determination once it has been previously decided by this Court. Section 213(2) of the 1979 Constitution provides for the machinery of appeals from the decisions of this Court to the Supreme Court; and if the parties in Eze’s case were dissatisfied with the decision, they should have appealed against it long before now. 1 do not think an indirect way of appealing against that decision should be employed by way of reference as we are being requested to do now. For these reasons, 1 am of the view that this is not a matter in which Court can be requested to make a reference to the Supreme Court. It is a matter for appeal…”

There is no doubt that the main issue in this appeal when it came before the Court of Appeal was the jurisdiction of the Federal High Court to try this appellant on criminal charges. That issue involved the proper construction of Section 230(l)(b) of the 1979 Constitution. No one can deny that a question involving the jurisdiction of a Superior Court like the Federal High Court is a substantial question of law. The refusal of the Court below to make the reference sought was based not on any lack of merit of the request but on the fact that in another case, Eze’s case decided on the 18th September 1981, (one year and five months before the present appeal on 15th February 1983) the Court of Appeal had construed Section 230(l)(b) of the 1979 Constitution and that whether that decision was fight or wrong the Court of Appeal was bound to maintain their position until reversed by the Supreme Court.

As 1 noted earlier on in this judgment, the Supreme Court in Bronik Motors Ltd. Ibid had decided that Section 230(l)(b) did not confer additional jurisdiction on the Federal High Court in excess of what was conferred by Section 7(1) and 7(2) of the Federal High Court Act. It did not confer on the Court (as was supposed by the Court of Appeal in Eze’s case) “jurisdiction …to try causes with respect to all matters in the exclusive Legislative List”. Judged from this angle, the interpretation of Section 230(l)(b) of the 1979 Constitution was no longer a live issue. It had already been decided by the Supreme Court.

From another angle however, the correct interpretation of the “warning” given by the Supreme Court in Senator Adesanya v. President of Nigeria (1981) 2 N.C.L.R. 358 that:

“Once a decision has been given on a substantial question of law the same question cannot be referred to the Supreme Court by the way of reference under Section 259(3) of the 1979 Constitution – the only way to obtain a review of that decision is by way of appeal.”

will always remain a live issue and an issue of great importance to the legal profession. In other words, does the Supreme Court’s “warning” in Senator Adesanya’s case refer to “decisions … on a substantial question of law” in the pending appeal before the Court of Appeal or to the Court of Appeal’s previous decision may be on the same or similar point being canvassed before it? Mr. Ajayi SAN submitted that the directive in Senator Adesanya’s case

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refers to a decision in the case being referred and not to a decision in a prior case not being referred to the Supreme Court.

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

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

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

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

Appeal allowed

Decisions of the Court of Appeal and

trial Court set aside

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