ATTORNEY-GENERAL OF KANO STATE (PLAINTIFF)
v.
ATTORNEY-GENERAL OF THE FEDERATION (DEFENDANT)
(2007) 2 All N.L.R. 33
Division: Supreme Court of Nigeria
Date of Judgment: 2 March 2007
Case Number: SC 26/2006
Before: Idris Legbo Kutigi; Umaru Atu Kalgo; Niki Tobi; Aloma Mariam Mukhtar; Mahmud Mohammed; Walter Samuel Nkanu Onnoghen; Ikechi Francis Ogbuagu, JJSC
ISSUES
Whether the original jurisdiction of the Supreme Court under section 232 of the 1999 Constitution had been properly invoked by Kano State (the plaintiff) having regard to the nature of the purported dispute with the Federation of Nigeria (the defendant) as disclosed in the statement of claim.
Whether there was a dispute between the Federation of Nigeria and Kano State to justify the Supreme Court exercising its original jurisdiction to entertain the claim of the plaintiff.
Whether the Inspector-General of Police had acted as agent for and on behalf of the Federal Government or whether the Inspector-General of Police had acted within its own powers as conferred by section 215 of the 1999 Constitution.
FACTS
The plaintiff's action arose from the operation of the Kano State Hisbah Board Law No. 4 of 2003 and Kano State Hisbah (Amendment) Law No. 6 of 2005. Under section 7 of Law No. 4, the Hisbah Corps were established in Kano State with the duties and responsibilities set out in subsection (4) of that section, some very similar to those of the Nigerian Police, such as assisting police in the areas of prevention, detection and reporting of offences, handling non-lethal weapons (like batons) and assisting in traffic control.
The Inspector-General of Police formed the view that the Hisbah Corps in Kano State had usurped the powers and duties of the Nigeria Police under the Police Act and the Constitution. He issued a press statement challenging the Hisbah Board Law and arrested the top commanders of the Hisbah Corp and charged them in court.
Aggrieved by the action of the Inspector-General of Police, Kano State of Nigeria filed a civil suit in the Supreme Court invoking the court's original jurisdiction against the Federation of Nigeria; claiming both declaratory and injunctive reliefs. The Inspector-General of Police was not joined as a party.
HELD
Leading judgment by Mahmud Mohammed, JSC with I.L. Kutigi; U.A. Kalgo; N. Tobi; A.M. Mukhtar; W.S.N. Onnoghen and I.F. Ogbuagu, JJSC
1. Duty of Court to give literal meaning to section 232 of 1999 Constitution
The duty of the courts is to interpret the words contained in the Constitution in their ordinary literal meaning. The provisions of section 232 of the 1999 Constitution are quite clear, and it would be wrong for a court to go outside the words to attach any other meaning. Per Mohammed, JSC at 38.
2. Police, not Federal Government, was opposed to Hisbah Board Law
The plaintiff's statement of claim (paragraphs 17-18) showed that it was the Inspector-General of police who was directly opposed to the Hisbah Board Law and took action against its operators. The statement of claim did not state that the Federal Government of Nigeria, whether through the President or the Attorney-General of the Federation, had taken action against the Hisbah Board Law or the Kano State Government itself. Per Kalgo, JSC at 49.
3. State or Federation may be sued only if directly involved
The Attorney-General of a State or the Federation could be sued in a civil claim, but this could only happen where the claim is directly against the State or Federal Government concerned. In this case, the Federal Government was not directly concerned and no relief was sought against it. Therefore the provisions of section 232 of the 1999 Constitution did not support the action. Per Kalgo, JSC at 49.
4. Absence of jurisdiction renders proceedings null and void
Where a court had no jurisdiction to entertain a claim, anything done in respect of the claim would be an exercise in futility and the proceedings would be rendered a nullity. Per Mohammed, JSC at 38.
5. Section 212 of 1979 Constitution is in pari materia with section 232 of 1999 Constitution
Section 232 of the 1999 Constitution is in pari materia with the provisions of section 212 of the 1979 Constitution. Per Mohammed, JSC at 38.
6. Original jurisdiction of Supreme Court can be invoked in a dispute between Federation and State
To invoke the original jurisdiction of the Supreme Court there must be a dispute between the Federation and one or more States or between States themselves, and the character of the dispute must involve a question of fact or law on which the existence of a legal right depends. Per Mohammed, JSC at 38.
7. Dispute not established with the Federation
While the plaintiff had clearly established a dispute, it had not established a dispute with the Federation of Nigeria. Per Mohammed, JSC at 38.
8. No dispute between Kano State and the Federation in terms of section 232 of Constitution
The word "Federation" in section 232 of the 1999 Constitution bears the same meaning as "Federal Republic of Nigeria" or "Federation of Nigeria". The plaintiff's claim did not accuse the Federation of Nigeria or the Federal Republic of Nigeria of taking any action against the Hisbah Law of Kano State or the operation of the Hisbah Corps in Kano State; or of arresting and detaining commanders of the Hisbah Corps in Kano State. There was no dispute between Kano State in its status as a component unit of the Federation and the unit of the Federation itself. Per Mohammed, JSC at 38.
9. State's claim against police justiciable in various courts of first instance
The statement of claim disclosed a dispute between the Government of Kano State and its agencies and the Government of the Federation through the Inspector-General of Police and Minister of Information, exercising their power or authority on behalf of the government of the Federation. The venue for settlement of such disputes (i.e. against Inspector-General of Police and Minister of Information), was in the various courts of first instance whose jurisdictions were clearly outlined in the same 1999 Constitution - and not the Supreme Court. Per Mohammed, JSC at 38.
10. Absence of justiciable dispute
The relief claimed by the plaintiff was against the Inspector-General of Police who was not subject to the original jurisdiction of the Supreme Court. The jurisdiction of that Court could not be invoked in the absence of a justiciable dispute between the parties and where the defendant was not the Federal Republic of Nigeria. Per Mohammed, JSC at 38.
11. Original jurisdiction of Supreme Court distinguished from original jurisdiction of Federal High Court
The original jurisdiction of the Supreme Court could be distinguished from the original jurisdiction of the Federal High Court under section 251(l)(p), (q) and (r) dealing with civil actions against the Federal Government or any of its agencies regarding issues of administration or the management and control or the interpretation of the Constitution as it affected the Federal Government or any of its agencies. Per Mohammed, JSC at 38.
12. Status of the Supreme Court
To entertain the action would result in reducing the status and function of the Supreme Court to that of the Federal High Court, contrary to the spirit and intention of the Constitution. Per Mohammed, JSC at 38.
Yusuf O. Ali SAN; with him K.K. Eleja Esq., A.T. Uwais Esq., R.O. Balogun Esq., J.I. Jacobs (Miss) and S.O. Babakebe Esq., for the plaintiff
Mrs A.O. Mbamali; Acting Director of Civil Litigation Federal Ministry of Justice, for the defendant.
The following cases were referred to in this judgment:
Nigeria
Adeyemi & others v Opeyori (1976) 9-10 SC 31
Attorney-General of Anambra State & 13 others v Attorney-General of the Federation & 16 others (1994) 3 NWLR (Part 335) 659; (1994) 4 SCNJ 30
Attorney-General of Anambra State & others v Attorney-General of the Federation & others (1993) 6 NWLR (Part 302) 692; (1994) 3 NWLR (Part 335) 659; (1994) 4 SCNJ 30
Attorney-General of Anambra State v Attorney-General of the Federation (2005) 9 NWLR (Part 931) 572; (2005) 5 SCNJ 38; (2005) 5 SC (Part 1) 73
Attorney-General of Bendel State v Attorney-General of the Federation & 22 others (1981) 10 SC 1; (1981) 3 NCLR
Attorney-General of Lagos State v Attorney-General of the Federation (2004) 18 NWLR (Part 904) 1; (2004)12 SCNJ 1; (2004) 11-12 SC (Part 85)
Attorney-General of Ondo State v Attorney-General of the Federation (1983) 2 SCNLR 296
Attorney-General of the Federation v Attorney-General of Abia State & 35 others (2001) 6 MJSCN; (2001) 7 SCNJ 1
Attorney-General of the Federation v Attorney-General of Imo State (1983) 4 NCLR 178
Badejo v Federal Minister of Education & others (1996) 8 NWLR (Part 464) 15
Governor of Kaduna State v President of the Federal Republic of Nigeria (1981) 2 NCLR 786
Governor of Ogun State v President of the Federal Republic of Nigeria (1982) 3 NCLR 538
Governor of Ondo State v President of the Federation (1985) 6 NCLR 681
Madukolu & others v Nkemdilim & others (1962) 2 SCNLR 341; (1962) NSCC 374; 1962 1 All NLR 587
Nafiu Rabiu v State (1980) 8-11 SC 130
Obioha v President of the Federal Republic of Nigeria (1981) 2 NCLR 701
Ojo-Ajao & Others v Popoola Ajao & others (1986) 5 NWLR (Part 45) 802
Ozomo v Bendel State (1986) 4 NWLR (Part 36) 448
President of the Federal Republic of Nigeria v Governor of Kano State (1982) 3 NCLR 819
Tukur v Government of Gongola State (1989) 4 NWLR (Part 117) 517
Foreign
Curtis v Stovin (1869) 22 G.B.D. 513
United States v Classic 313 U.S. 299
The following statutes were referred to in this judgment:
Nigeria
Constitution of the Federal Republic of Nigeria, 1979: S 212(1), (2)(a), (b), (c)
Constitution of the Federal Republic of Nigeria, 1999: Ss 3(1); 4(6); 7; 100; 214; 215(2); (4), (5); 216; 232(1), (2); 251(1)(p), (q), (r); 318; First Schedule, Part 1
Kano State Hisbah Board No.4 of 2003: S 7(4)
Kano State Hisbah Board (Amendment) Law No. 6 of 2005
Police Act (Cap. 359 LFN 1990)
MOHAMMED, JSC (DELIVERED THE LEADING JUDGMENT):- 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:-
"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.
2. DECLARATION that Law No. 4 and Law No. 6 were made by the Kano State House of Assembly for peace, order and goodgovernment of Kano State, the Laws are therefore valid, lawful, legal and constitutional.
3. DECLARATION that Law No. 4 and Law No. 6 aforesaid were made in accordance with the powers vested in the Kano State House of Assembly by the provisions of section 4(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999.
4. DECLARATION that Law No. 4 and Law No. 6 were made by the Kano State House of Assembly and assented to by the Governor of Kano State in accordance with the provisions of section 100 of the Constitution of the Federal Republic of Nigeria, 1999 and all other powers in that behalf.
5. DECLARATION that the defendant, his agents or privies have no power nor authority to declare as unconstitutional any of the provisions of Law No. 4 and Law No. 6 without a court order or pronouncement to that effect.
6. DECLARATION that all the provisions of Law No. 4 and Law No. 6 are valid, extant and operate until otherwise declared.
7. INJUNCTION restraining the defendant by himself, his agents, or privies, in particular the Inspector General of Police from disturbing, stopping, disrupting or in any other manner stop the full operations of Law No. 4 and Law No. 6 by taking any step whatsoever in the stoppage of the full implementation of the said Laws.
8. INJUNCTION restraining the defendant by himself, his agents, or privies and in particular the Inspector-General of Police from arresting, harassing or intimidating any person in the lawful execution of and/or implementation of the provisions of Law No. 4 and Law No. 6 respectively.
9. ORDER directing the defendant by himself, his agents or privies to stop forthwith any interference with the lawful implementation of the provisions of Law No.4 and Law No.6 and in particular to stop the arrest and or prosecution of any official of Kano State Government in the lawful execution and implementation of the provisions of the said laws.
10. AND for such further or other reliefs as the court may find the plaintiff entitled to."
The plaintiff was purported to have brought this suit against the defendant under the original jurisdiction of this Court prescribed by section 232 of the 1999 Constitution of the Federal Republic of Nigeria. The suit came before this Court for hearing on 29 June 2006 and adjourned to 23 November 2006, for further hearing on which date judgment was reserved for delivery on 23 February 2007.
However, on 8 January 2007, the parties were recalled by this Court when their learned Counsel were given the opportunity to address this Court on whether the original jurisdiction of this Court under section 232 of the 1999 Constitution was properly invoked by the plaintiff in this suit having regard to the nature of the dispute disclosed in the plaintiff's writ of summons and the statement of claim. In other words, this Court suo motu raised the issue of jurisdiction and asked the parties through their learned Counsel to satisfy