ALHAJI NANNER BUKA UMORU MANDARA v. THE ATTORNEY GENERAL OF THE FEDERATION (SC 152/1983) [1984] 6 (06 April 1984);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 6TH DAY OF APRIL 1984

SC 152/1983

BETWEEN

ALHAJI NANNER BUKA UMORU MANDARA ......................................... APPELLANT

AND

THE ATTORNEY GENERAL OF THE FEDERATION ............................................ RESPONDENT

BEFORE: Sowemimo C. J. N. Irikefe, Bello, Obaseki, Eso, Aniagolu, Uwais; JJ.S.C.

 

The appellant was tried at the Federal High Court, Lagos, on four Counts charging treasonable felony, incitement to mutiny and attempting to cause disaffection amongst member of the armed forces of this country. Specifically, the charges were brought under Section 41 (a), 44 (a), 44 (b) and 46 (1) (a). Some of the above charges attract a punishment of life imprisonment, but having been found guilty at the end of what undoubtedly must have been a very tedious trial, judging by the size of the printed record of proceedings the appellant was convicted and sentenced to a maximum of 15 years imprisonment on two of the counts and 10 years imprisonment on the other two, the said terms to run concurrently. He was thus to serve a total of 15 years imprisonment. The conviction was recorded on 30th July 1982 and the appellant is still in prison custody. All the charges were brought under part II of the Criminal Code (Cap 42 Laws of Federation of Nigeria).

On conviction, the appellant appealed to the Court of Appeal.

The Court of Appeal by a split decision of two to one held that the Federal High Court was competent to try the appellant and that it derived the power so to do under section 7 (3) of the Federal High Court Act No 13 of 1973. It accordingly dismissed the appeal.

The appellant has now appealed to this Court.

 

HELD:

(1) It seems to me however upon an examination of the authorities that the word include or including need not, as contended for the appellant, have only an additive effect, it may be used in for form of additional emphasis in respect of what has gone before or for the avoidance of doubt.

(2) On the whole, I am satisfied that in view of BRONIK the Federal High Court had no jurisdiction to try the offences with which the appellant in this case was charged. I hold also that the objection to jurisdiction was properly taken at the time it was.

Appeal Allowed.

Chief F. R. A. Williams S.A.N. with him R. A. Ojosipe and T. E. Williams for Appellant.

Ben Nwazojie, Federal DPP, with him G. Ekeh, State Counsel and MRS–Abetiba Senior State Counsel for Respondent

Cases referred to:

(1) Bronik Motors and Anor Ltd v. Wema Bank Suit No. SC 110/82

(2) Chief Obafemi Awolowo v. Alhaji Shehu Sagari (1979) 6-9 SC 51 at 65/66

(3) Commissioner of Customs and Excise v. Savoy Hotel Ltd (1966) 1 WLR 948 at 954

(4) Daboh and Anor v. The State the State (1977) 5 SC 197 at 230

(5) Dilworth v. Commissioner of Stamps (1899) AC 99 at page 105 CA

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

(7) Gartside v. Inland Revenue Commissioner (1968) AC 553 at 612

(8) Gibbons v. Ogden 6 Vs Sup Ct reports 23 L ED

(9) Goves v. Skuighter 10 US Supreme Court Reports 800 L ED

(10) Gregory Godwin Daboh & Anor v. State (1977) 5 SC 197

(11) Jammal Steel Structures Ltd. v. African Continental Bank (1973) 1 ALL NLR (part II) 208

(12) Jones v. Secretary of State (1972) 1 ALL E RP 145

(13) Montello Salt Co. v. Utah 221 US 452

(14) Nafiu Rabiu v. Kano State (1980) 8 YISC 130 Page 162

(15) Nnaka Udenta & Ors v. Ani Chukwunta & Ors (1959) 3 ENLR page 45

(16) Nokes v. Doncaster Amalgamated Collieries (1940) AC 1014 at 1022

(17) R v. City of London Judge (1892) 1 QB 273 at 290

(18) Re Wing Malting Co. v. Willcuts 49 ALR 459

(19) Senate of the National Assembly v. Momoh unreported Suit No. FCA/L/45/81

(20) Sussex peerage claim (1855) CL and Fin 85 at 143

(21) The State v. Williams & 2 Ors (1978) 2 SC 9 at 16

(22) Wing Matting Co. v. Willcuts 49 ALR 459 at page 465

Statutes referred to:

(1) Constitution of the Federal Republic of Nigeria 1979

(2) Criminal Code Cap. 42 Laws of the Federation of Nigeria

(3) Federal High Court Act No. 13 of 1973

Irikefe, J.S.C. The appellant was tried at the Federal High Court, Lagos, on four counts charging treasonable felony, incitement to mutiny and attempting to cause disaffection amongst members of the armed forces of this country. Specifically, the charges were brought under section 41 (a), 44 (a), 44 (b), and 46 (1) (a). Some of the above charges attract a punishment of life imprisonment, but having been found guilty at the end of what undoubtedly must have been a very tedious trial, judging by the size of the printed record of proceedings, the appellant was convicted and sentenced to a maximum of 15 years imprisonment on two of the counts and 10 years imprisonment on the other two, the said terms to run concurrently. He was thus to serve a total of 15 years imprisonment. The conviction was recorded on 30th July, 1982 and the appellant is still in prison custody. All the charges were brought under Part II of the Criminal Code (Cap 42–Laws of the Federation of Nigeria) with the heading:

“OFFENCES AGAINST PUBLIC ORDER”

On conviction, the appellant appealed to the Court of Appeal on a number of grounds. The said grounds were later amended to raise the issue of the jurisdictional incompetence of the Federal High Court to try the charges brought against the appellant.

Before this appeal, the court of Appeal had decided when the jurisdiction of the Federal High Court to try criminal matters other than those within the contemplation of section 7 of the Federal High Court Act (No.13 of 1973) was contested in Eze v. Federal Republic Of Nigeria–(1982 3 N.C.L.R.–259) that that court had jurisdiction. This was also the decision of the Court of Appeal in Senate of the National Assembly v. Momoh–Unreported Suit No. FCA/L/45/81–decided on 19th July, 1982.

On 10th June, 1983 this Court delivered judgment in Suit No. SC.110/82–Bronik & Anor. Ltd. v. Wema Bank Ltd. This judgment dealt exhaustively with the jurisdiction of the Federal High Court both under the original Act establishing that court (then designated–The Federal Revenue Court) that is ACT No. 13 of 1973 and under the Constitution of the Federal Republic of Nigeria–1979.

In view of the binding effect of the above decision on the Court of Appeal, the appeal of the appellant to that court which was decided on 18th November, 1983 was based exclusively on an interpretation by that court of our decision in BRONIK (supra) and its bearing, if any, on the jurisdiction of the Federal High Court to try the appellant. The Court of Appeal by a split decision of two to one (KAZEEM and NNAEMEKAAGU, JJ.C.A.) ADEMOLA, J.C.S. DISSENTING, RULED THAT OUR DECISION IN BRONIK (supra) notwithstanding, the Federal High Court was competent to try the appellant and that it derived the power so to do under section 7 (3) of the Federal High Court Act–No.13 of 1973. The appellant has now appealed to this Court on the following two grounds, namely:

(a) The Federal Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to try the appellant.

PARTICULARS OF ERROR

Section 7 (3) of the Federal High Court Act is purely explanatory of section 7 (2) and ought not to have been construed as enlarging its scope.

(b) The Federal Court of Appeal erred in law in not holding that the appellant has not been tried before a court of competent jurisdiction and the conviction ought to have been quashed.

It is thus clear that this appeal is concerned with the very narrow issue of the correct interpretation of section 7 (3) of the Federal High Court Act No. 13 of 1973. Chief Williams, learned Senior Advocate, who represented the appellant set out in his brief the only issue which calls for a determination as—

“What is the true meaning and intent of section 7 (3) of the Federal High Court Act.”

Counsel adopted the formulation of the question for determination as is contained in the judgment of NNAEMEKA-AGU, J.C.A., where the learned Justice said:

“The issue is whether by sub-section (3) the Act confers upon the court, in addition to the jurisdiction conferred by sub-section (2), jurisdiction over provisions in the Criminal Code in relation to offences for which the Attorney-General of the Federation may initiate proceedings or whether sub-section (3) is not designed to confer additional jurisdiction over matters contained in the Criminal Code but merely re-affirms that the Court may try such offences in the Code where they relate to matters over which jurisdiction is conferred by sub-section (2).”

On the submissions on either side, the area of disagreement on the main issue raised in the appeal is very narrow, but crucial. For the appellant, it is contended that sub-section (3) of section 7 of the Federal High Court Act is purely explanatory of sub-section (2) thereof; while the respondent argues that sub-section (3) is a distinct provision standing by itself and extending whatever jurisdiction sub-section (2) confers on the court.

This notion that sub-section (3) should be construed as an extension of, or an addition to the scope of sub-section (2) would appear to be the main prop to the case of Mr. Nwazojie, the learned Director of Public Prosecutions of the Federation. He argued thus in his reply brief:

“It is common ground by both the appellant and the respondent that the Attorney-General of the Federation has power to initiate proceedings for the offences charged under those sections of the Criminal Code of the Federation, Cap 42. It is also agreed that the Criminal Code, Cap 42, is an existing law and a federal enactment with regard to those matters in which the Attorney-General of the Federation may initiate proceedings. The disagreement is only on the court that has jurisdiction to try the offences. Appellant contends that it is the High Court of a State (Lagos State), while the respondent maintains that it is the Federal High Court by virtue of section 7 (3) of the Federal High Court Act, 1973 (No. 13 of 1973, Laws of the Federation). This position is not against the decision of the Supreme Court in BRONIK case (loc. cit) because the Supreme Court decided in that case that the Federal High Court’s jurisdiction is limited to—

(a) matters set out in section 7 of the High Court Act 1973;

(b) The concurrent jurisdiction conferred on the Federal High Court with the State High Court under section 42 of the 1979 Constitution concerning the breach of fundamental rights;

(c) the temporary jurisdiction conferred on the Federal High Court by section 237 of the 1979 Constitution regarding election to the office of President or Vice President, temporary until section 279 of the Constitution has been implemented. It is only on (a) above, matters set out in section 7 of the Federal High Court Act, 1973, that we are concerned with in this appeal.

It is submitted by the respondent that the word “include” as used in the context of sub-section 7 (3) should be construed as having a cumulative or additive effect. Thus, construed in this light, it would appear that some additional jurisdiction is being vested in the Federal High Court in respect of offences in the Criminal Code (Cap 42) in which a prosecution may be launched by the Attorney-General of the Federation.

It seems to be however upon an examination of the authorities that the word include or including need not, as contended for the appellant, have only an additive effect; it may be used in the form of additional emphasis in respect of what has gone before or for the avoidance of doubt. As defined in the shorter Oxford Dictionary “include” may mean–To contain, comprise or embrace–(aas a member of an aggregate or a constituent part of a whole–(b) as a sub-ordinate element, corollary or secondary feature. (c) To place in a class or category; to embrace in a general survey; or to reckon in a calculation.” (Italic mine). See–Commissioners Of Customs & Excise v. Savoy Hotel Ltd.–1966 1 W.L.R. 948 at 954 where SACHS J. stated—

“ ‘including’ is a word to which parliamentary draftsmen seem considerably addicted: one reason for this may be that in law it can have, according to its context, not only one or other of simple but in essence quite differing effects (for instance, in relation to the words that follow it may be found to have been used simply to enlarge, to limit, to define exhaustively or for the avoidance of doubts to repeat the preceding word or phrase), but it may also be used to secure on one and the same occasion more than one of those effects, thus putting the draftsman, but not necessarily the court, in a happy position.” (Italic mine).

Where in the interpretation of a word appearing in a particular piece of legislation such a word is capable of two meanings, the court has a duty to adopt an interpretation which would not defeat the intention of the lawmaker. In Maxwell on Interpretation of Statutes 12th Edition the learned authors stated thus at page 105—

“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.” (Italics mine).

Again in the same page of the said edition is quoted the following words of Lord Reid in Gartside v. Inland Revenue Commissioners–1968 A.C. 553 at 612—

“It is always proper, to construe an ambiguous word or phrase in the light of the mischief which the provision is obviously designed to prevent, and in the light of the reasonableness of the consequences which follow from giving it a particular construction.” (Italic mine).

I should now like to examine what the likely consequences would be if the interpretation urged by the respondent were to apply. To start with there is only the express mention of the Criminal Code (Cap 42) which applies in Southern Nigeria and not in Northern Nigeria where the Penal Code applies. Can it be seriously argued that anyone committing an offence cognisable under the Criminal Code could be prosecuted therefor by the Attorney-General in the Federal High Court by virtue of sub-section (3) while such a person would be immune from prosecution were he to commit the same offence in Northern Nigeria? Such an anomalous and monstrous situation could not have been contemplated when sub-section (3) was enacted. As the respondent concedes that the Federal Attorney-General can only prosecute in respect of Federal causes or offences and as Act No. 20 of 1960 (CRIMINAL PROCEDURE NORTHERN REGION) assimilated the practice and procedure under the Penal Code of the Northern States of Nigeria with those of the Southern States in respect of the said Federal causes and offences, the omission of the PENAL CODE cannot fail to impinge on the attention of the legal draftsman. Alternatively, it was argued, and I agree that, the situation set out above might not arise in practice if the Federal High Court had jurisdiction, as ACT No. 20 of 1960 (supra), would confer power on the court to try the appellant under the PENAL CODE.

It seems to me that the approach adopted by the respondent to this appeal as also the majority of the Court of Appeal stems from an attempt to construe sub-sections under section 7 of ACT No. 13 of 1973. Section 7 (1) of ACT No. 13 of 1973 reads as follows:

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

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

(b) connected with or pertaining to—

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

(ii) customs and excise duties,

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

(c) arising from—

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

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.

(3) The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice to the generality of that sub-section and subject to section 63 (3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The Head of the Federal Military Government may by order published in the Gazette confer jurisdiction on the Federal Revenue Court in respect of such other causes and matters of like nature as those set out in the foregoing sub-sections as he may from time to time at his discretion specify.”

Our decision in the BRONIK case dealt not only with the jurisdiction of the Federal High Court under section 7 of ACT No. 13 of 1973 but also took into account the origin of its jurisdiction under section 230 of the 1979 Constitution and that jurisdiction under section 42 of the said Constitution which it shares with the State High Court. We were at pains to emphasise in our unanimous decision in the BRONIK case that while the Federal High Court is a court of limited jurisdiction, that is limited as spelt out under section 7 of ACT No. 13 of 1973, section 42 and section 230 of the 1979 Constitution, a State High Court on the other hand is a court of unlimited jurisdiction as provided under section 236 of the Constitution. The said section (236) reads:

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

And by section 250 of the 1979 Constitution, jurisdiction is vested in the State High Court in respect of Federal causes. Federal causes is defined under the section as—

“civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws; and ‘Federal offence’ means an offence contrary to the provisions of an Act of the National Assembly or any law having effect as if so enacted.”

We made it clear in the BRONIK case that it is open to the National Assembly under section 230(b) of the 1979 Constitution to confer such additional jurisdiction as it may deem necessary on the Federal High Court, but this apparently had not been done before the recent change in government.

I find it extremely difficult to understand sub-section (3of section 7 of ACT No. 13 of 1973 without reference to the two preceding sub-sections namely–(1) and (2). Sub-section (2) as earlier indicated, in particular reads—

“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.”

7. (1)

(c) reads under

(ii) arising from any enactment relating to copyright, patents, designs, trade marks and merchandise marks.

Cap 42 (Criminal Code) sections 491, 492 and 493 contain offences in relation to copyright. Also copyright is item 13 on the Exclusive Legislative List and thus a matter in respect of which only the National Assembly can legislate.

Thus is would seem that in regard to matters relating to copyright the Attorney-General of the Federation would be able to prosecute for offences in the Federal High Court, deriving the authority so to do from sub-section (1), (2) and (3).

The respondent’s counsel having conceded in his brief that the decision in BRONIK is limited to matters set out in section 7 of the Federal High Court Act 1973, by this I understand him as referring to the entirety thereof, cannot justifiably now seek to modify this stand by arguing that sub-section 7(3) can be the source of extra jurisdiction in that court. It would appear that, though not expressly put, we are being asked to set aside or overrule our decision in the BRONIK case presumably on the doctrine of STARE DECISIS. In this wise, I wish to adopt my stand in the BRONIK case where I stated as follows:

“On the whole, I would need greater persuasion than has been the case here, to shift from the view I hold that a case for overruling JAMMAL has not been made. To do so, as was held in Jones v. Secretary of State–(1972) 1 ALL E.R. P145–three pre-requisite conditions must be prayed in aid and satisfied–namely:

(a) a broad issue of justice

(b) or policy and

(c) a question of legal principle–such that the retention of the decision would amount to a perpetuation of injustice.”

Historically, up to September 1979, and notwithstanding that ACT No. 13 had been in force since 1973, there was no evidence that the Federal Attorney-General had sought to prosecute matters other than those set out under section 7 of ACT No. 13 in the Federal High Court. But after the coming into force of the 1979 Constitution, and presumably relying on the provisions therein contained as regards “SEPARATION OF POWERS”, the Federal Attorney-General set out, albeit through the back door, on a course seeking to establish that all Federal causes or offences should be prosecuted or litigated in Federal courts. This would naturally embrace all matters in respect of which the National Assembly was competent to legislate or those set out in the Exclusive List. Our decision in Bronik completely brought this notion to a halt.

Under section 160 (1) (a) of the Constitution the Attorney-General of the Federation shall have power

(a) “to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;

In view of the constitutional arrangement as above and more particularly in reliance on our decision in Bronik, it does not seem to me feasible for the Attorney-General of the Federation, at his election to opt for a Federal Court, where such a court, as the Federal High Court, with which this appeal is concerned, would have not jurisdiction.

There can be no room for a situation of Federal justice and State justice; there can only be justice according to the laws of this land. I would certainly need express legislation such as would enable the Attorney-General of the Federation to take all his cases to Federal courts, thus avoiding State courts. This court demonstrated conclusively in BRONIK that such separation of powers as there exists in our 1979 Constitution is neither water-tight nor absolute as I have endeavoured to show earlier on in this judgment. State High Courts try Federal cases in what I would describe as Federal presence. By this I mean that law and order in the State or in the courts in the State is maintained by the Nigeria Police, which is an arm of the Federal–executive arm of government. The decrees and orders of such courts are enforced by the Federal arm of government. It is also the case that crime is investigated and recommended for prosecution by the police in each State. Again, prosecution of criminal cases in the inferior State courts is done by the Nigeria Police. Thus it would seem that the constitutional arrangement in this regard is porous and there is constant inter-action between the Federal and State organs of government.

On the whole, I am satisfied that in view BRONIK the Federal High Court had no jurisdiction to try the offences with which the appellant in this case was charged. I hold also that the objection to jurisdiction was properly taken at the time it was. Nnaka Udenta & Ors. V. Ani Chukwunta & Ors.–1959(3) E.N.L.R. P.45. This appeal, therefore, succeeds and it is allowed.

Accordingly I hereby declare as null and void the trial as well as the purported conviction of this appellant, as the Federal High Court which tried him had no jurisdiction so to do.

On the question of what consequential order to make, I would refrain from doing so, save only to set out the bare facts. The appellant was convicted on 30th July, 1982 and sentenced to 15 years imprisonment. He had sought to overthrow the erstwhile government of President Shehu Shagari, but failed. He has been in custody for 1 year 8 months. It was not his fault that he was tried in the wrong court. These are the facts. It seems to me that, having held that the Federal High Court had no jurisdiction to try this appellant, and that the entire proceedings were a nullity, there can be nothing to which a retrial order could be tied. The decision to prosecure or not to prosecute can be either a political or policy decision which only the Attorney-General of the Federation can take under section 160 of the Constitution of 1979.

Accordingly, I order that the appellant be discharged forthwith from prison custody.

Sowemimo, C.J.N. My brother, Ayo Irekefe has given a resume and detailed facts of this case.

The jurisdiction and law of the Federal Revenue Court is set out in sections 7 and 8 of the Federal Revenue Court Act No 13 of 1973. Consequent upon the Constituent Assembly’s recommendations, the name of the court was changed to Federal High Court, but the jurisdiction of the court remains the same. We have had to deal in this Court with sub-section 1 of section 7 of the Act and there it was held that the jurisdiction of the Federal High Court is restricted unlike the State High Court which has unlimited jurisdiction. That has put an end to the problem of which court has jurisdiction to deal with a particular matter. Our main concern in this appeal is sub-section 3 of section 7. The appellant in this case is charged as follows:

(1) Did solicit, incite, endeavour to persuade and to procure army officers to take part unconstitutionally in the removal of the President of the Federal Republic of Nigeria as Head of State and Commander-in-Chief of the Armed Forces of the Federation.

(2) Gave four tickets of the Nigeria Airways Ltd. to an army officer in names and some routes so that he could recruit soldiers in other military locations in Nigeria in furtherance of the intention referred to in overt act (1) above.

My brother Ayo Irikefe has dealt succinctly with the various aspects of this matter. It must however be stated that the criminal jurisdiction under section 3 reads as follows:

“The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice to the generality of that sub-section and subject to section 63(3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.”

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 sub-section 1 of section 7 has never been altered. All criminal matters which that court has jurisdiction to deal with under sub-section 3 must be within the competence of S.7(1). The suggestion that the criminal jurisdiction of that court is unlimited is fallacious and not supported by the law. To that extent this case should have been tried in the particular High Court of the State where the offence was committed. There is not the slightest doubt that the Federal High Court has no jurisdiction in hearing the matter and the Federal Court of Appeal, now known as the Court of Appeal, has no jurisdiction to entertain the appeal.

It is surprising that in this straightforward case the Attorney-General of the Federation took this matter to the Federal High Court for purposes not in conformity with the law. sub-section 3 has been drafted but not clearly expressive as one would have hoped it should be in view of the provisions of section 7 sub-section 1 of that Decree which is the governing jurisdiction of the Federal High Court formerly “Federal Revenue Court” Otherwise all criminal matters not dealing with revenue will find their way to the Federal High Court without any jurisdiction whatsoever. It is the duty of our courts to observe the different jurisdictions which are conferred on those courts. It is our hope that the Federal High Court will continue to deal with revenue cases, except, of course, the election petitions in the case of presidential and vice-presidential elections.

My conclusions therefore is that the judgment of the Federal High Court must be set aside as lacking in jurisdiction, and the judgment of the Court of Appeal which supports the judgment of the Federal High Court must be set aside. In the circumstances, the judgment of this Court, having set aside the judgment of the Federal High Court as lacking in jurisdiction, allows this appeal. AND this shall be the judgment of this Court.

Bello, J.S.C. I had read the judgment delivered by my learned brother, Irikefe J.S.C. I agree with his reasoning and conclusion that the Federal High Court has no jurisdiction to try the appellant on the charge of four counts laid under sections 41 (a), 44(a), 44(b) and 46(1)(a) of the Criminal Code, Cap. 42 of the Laws of the Federation. The convictions and sentences cannot therefore stand and must be quashed.

In Bronik Motors Ltd. v. Wema Bank, S.C.110/82 delivered on 10th June 1983, we exhaustively considered the extent of the jurisdiction of the Federal High Court in civil causes and matters and determined the content of such jurisdiction. We rejected the contention that on account of the division of judicial powers of government between the courts established for the Federation and the courts established for the constituent States in the 1979 Constitution, the Federal High Court had unlimited jurisdiction to the exclusion of States courts over all Federal causes and matters. We held that the jurisdiction of the Federal High Court in civil causes and matters was limited to the matters conferred by sections 42, 230 and 237(1) of the Constitution and the Federal Revenue Court Act, 1973.

As regards the jurisdiction of the Federal High Court in criminal causes and matters, it may be observed that the Constitution did not expressly confer on that court jurisdiction in respect of criminal cases other than in section 230 of the Constitution which enabled the National Assembly to prescribe such jurisdiction (but the defunct National Assembly did not do so) and which also vested in the Federal High Court the criminal jurisdiction of the former Federal Revenue Court under the Federal Revenue Court Act, 1973. Consequently as at present, the Act is the fountain from which the criminal jurisdiction of the Federal High Court flows. Section 7 of the Act provides:

“7.

(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters—

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

(b) connected with or pertaining to—

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

(ii) customs and excise duties,

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

(c)

rising from—

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

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of the section.

(3) The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice and subject to section 63(3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The Head of the Federal Military Government may by order published in the Gazette confer jurisdiction on the Federal Revenue Court in respect of such other causes and matters of like nature as those set out in the foregoing sub-sections as he may from time to time at his discretion specify.” (Italic mine).

Now, sub-section (3) of the section is the subject matter of the dispute in this appeal and the issue contested revolved round the correct meaning of the words italicised therein and particularly the words “shall... include.” By a split majority of two (Nnaemeka-Agu and Kazeem JJ.C.A.) to one (Ademola J.C.A) the Court of Appeal held that the sub-section extends the jurisdiction comprehended in sub-section (2) and confers additional jurisdiction therein. The majority concluded that the Federal High Court has jurisdiction to try the offences charged. In his interpretation of the sub-section, with which Kazeem J.C.A. agreed, Nnaemeka-Agu J.C.A. stated:

“It appears to me that, in the ascertainment of the true legislative intention, the word ‘include’ in sub-section (3) is most significant. Dealing with the word, the learned author of Maxwell. On Interpretation of Statues (12th Edn.) at p.270 says:

‘... the word “include” is used in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these word or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.’

See Dilworth v. Commissioner of Stamps (1899) A.C. 99, at p. 105 C.A. It is ordinarily used to produce a cumulative effect where it is used in a statute. To the same effect, Udoma J.S.C. while construing the word ‘includes’ in section 277 of the 1979 Constitution in Nafiu Rabiu vs Kano State (1980) 8-11 S.C. 130, had this to say at p.162:

‘In my opinion, the phrase in the definition to which the greatest importance ought to be attached is the expression which reads:—

“means any determination of that court and includes”

The purpose of the use of such an expression in my view is to widen the scope of the concepts covered by the term “decision.” It is certainly not to narrow its meaning as has been suggested by counsel. Applying this principles to the (sic) ascertainment of the legislative intent of section 7(3) of the Federal High Court Act it appears to me that the purpose of the words ‘shall’...’include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation’ is to confer upon the Court jurisdiction over such matters additional to that conferred under section 7(2). Indeed that such is the intent is implicit in the decision of the Supreme Court in Gregory Godwin Daboh & Anr. v. The State (1977) 5 S.C. 197 where their Lordships while construing the section, said per Udoma J.S.C. at pp.230-231:

‘The present charges against the appellants do not fall within the categories enumerated in the Federal Revenue Decree. The provisions of section 7(3) relate to matters the proceedings in which are to be initiated at the instance of the Attorney-General of the Federation.’

Thus their Lordships recognized the fact that under the section two distinct jurisdictions were conferred, namely (1) those which relate to matters enumerated in the Federal High Court Act and (2) those relating to matters in which proceedings could be initiated by the Attorney-General of the Federation.

In his submission before us learned Counsel for the appellant contended that the majority of the Court of Appeal erred in appearing to have assumed the word “include” can only be used as a word of enlargement.

Relying on the meaning of the word in the Oxford English Dictionary and the meaning ascribed to it in the Commissioners of Customs and Excise v. Savoy Hotel Ltd (1966) 1 W.L.R. 948 at 954: Montello Salt Co. v. Utah 221 U.S. 452 and Re Wing Malting Co. v. Willcuts 49 A.L.R. 459 Chief Williams argued that the word has various shades of meaning in that it may be used to enlarge, to limit, to define exhaustively or for the avoidance of doubt to repeat the preceding word or phrase. He contended that sub-section (3) is purely explanatory of sub-section (2) and that the word “include” in the context of sub-section (3) merely indicates, for the avoidance of doubt, a part of what is comprehended under the provisions of sub-section (2).

The respondent’s argument was that sub-section (3) is a distinct provision standing by itself and is intended to add to what is comprehended under sub-section (2). The learned Director of Public Prosecutions submitted that the majority of the Court of Appeal were perfectly right in their interpretation of the word “include” as enlarging the provision of sub-section (2). He cited Daboh & Anor v. The State, (1977) 5 S.C. 197 at 230, The State v. Williams & 2 Ors. (1978) 2 S.C. 9 at 16 and Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at 162 to buttress his submission.

I may at the outset state that the observations made on section 7(3) by Sir Udo Udoma, J.S.C. and Sowemimo, J.S.C., as he was then, in Daboh & Anor v. The State (supra) and The State v. Williams (supra) were mere Obiter dicta and neither was a positive and affirmative pronouncement that sub-section (3) was an enlargement of sub-section (2).

Having considered the cases referred to above, I am satisfied that the word “include” is generally used in order to enlarge the meaning of words or phrases occurring in the body of a statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the including clause declares that they shall include. But “include” is susceptible of another construction which may become imperative if the context of the statute is sufficient to show that it was not employed for the purpose of adding to the natural significance of the words or phrases but for the purpose of setting out an exhaustive explanation of the meaning which, for the purposes of the statute, must invariably be attached to those words and phrases or for the purpose of repeating the preceding words or phrases for the sake of clarity and avoidance of doubts.

It appears to me that upon cursory reading of sub-section (2) and (3) and having regard to the meaning of the word “include”, it is reasonable to hold that sub-section (3) is susceptible of the interpretation put to it by the majority of the Court of Appeal i.e. it enlarges the scope of sub-section (2). It is also reasonable to ascribe to sub-section (3) the meaning advocated by Chief Williams that it merely repeats sub-section (2). It follows that sub-section (3) seems to have more than one meaning and in the circumstances the court has discretion to choose between these meanings. In Chief Obafemi Awolowo v. Alhaji Shehu Shagari (1979) 6-9 S.C. 51 at 65-66 Fatayi-Williams, C.J.N. then, stated the relevant rule of construction thus:

“If the words used are capable of more than one meaning, then the person interpreting the statute can choose between these meanings, but beyond that he must not go.”

Now, the question is: Which meaning is to be preferred? The formulae for the choice have been stated in many cases. The rules may be summarised that a construction which would promote in order to bring about an effective result and achieve the manifest purpose of the legislation should be preferred to that which would reduce the legislation to futility or absurdity: Sussex Peerage Claim (1844) CL and Fin 85 at 143, R.V. City of London Judge (1892) 1 QB 273 at 290 and Nokes v. Doncaster Amalgamated Collieries (1940) A.C. 1014 at 1022.

Guided by the rules of construction enunciated above, I choose that meaning of sub-section (3) which would achieve the manifest purpose for which the Federal High Court was established. Nnamani J.S.C. stated the object for which the Federal High Court was established in Bronik Motors Ltd. v. Wema Bank Ltd. (supra) in these terms:

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

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

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

It seems to me to construe sub-section (3) as being an addition to sub-section (2) would lead to flooding the court with all Federal offences under the Criminal Code and such construction would be a clog to the exercise of its manifest function to deal expeditiously with matters pertaining to the revenue of the Federation. On the other hand the construction advocated by Chief Williams would bring about an effective result in achieving the object for which the court was established.

For the foregoing reasons, I hold that the provisions of section 7 (3) merely amplify the provisions of section 7 (2) of the Federal Revenue Court Act, 1973 and that the phrase “offences under the provisions of the Criminal Code” in section 7 (3) means the offences under the Code which relate to the matters set out in section 7 (1) of the Act. It is manifest that the offences of which the appellant was convicted bear no relation with the matters specified in section 7 (1) of the Act with which the Court is vested jurisdiction.

For the sake of emphasis, section 7 (3) does not vest the Court with jurisdiction to try all Federal offences under the provisions of the Criminal Code.

Obaseki, J.S.C. This appeal raises the important question of the limit of jurisdiction in criminal matters conferred by the Federal High Court Act 1973 on the Federal High Court. In particular, the question to be directly answered is whether the criminal jurisdiction conferred on the Federal High Court by the said Act includes jurisdiction to entertain the charges on which the appellant was tried and convicted.

My learned brother, Irikefe, J.S.C. has, in his judgment, dealt extensively with the question and come to the opinion that the Federal High Court Act did not confer any jurisdiction on the Federal High Court to entertain the charges on which the appellant was tried and convicted. I am of the same opinion.

The appellant was arraigned before the Federal High Court on the 2nd day of April, 1982 on a 4-count charge which reads as follows:

“Count 1:

That you, Alhaji Zanna Bukar Umoru Mandara (M), of No. 5 Rasaq Balogun Street, Surulere, Lagos, at Lagos, in the Lagos Judicial Division, between the 1st day of March, 1981 and the 30th day of January, 1982 did form an intention to remove during his term of office otherwise than by constitutional means, the President of the Federal Republic of Nigeria as Head of State and Commander-in-Chief of the Armed Forces of the Federation and manifested such an intention by overt acts to wit:

(1) Solicited, incited, endeavoured to persuade and to procure Major Mohammed Yunusa, Sergeant Garba Muga, Sergeant Jonathan Adzande, Sergeant Sani Kasim, Corporal Ibrahim Ango and Warrant Officer Adamu Attaboh to take part unconstitutionally in the removal of the President of the Federal Republic of Nigeria as Head of State and Commander-in-Chief of the Armed Forces of the Federation.

(2) Gave four tickets of the Nigeria Airways Limited to Warrant Officer Adamu Attaboh in names and routes outlined below so that he could recruit soldiers in other military locations in Nigeria in furtherance of the intention referred to in overt act (1) above;

(a) Mr. A. Adamu: Los-Mai-Los

(b) Mr. U. Audu: Los-Mai-Los

(c) Mr. A. Huhu: Los-Mak-Los

(d) Mr. A. Abudu: Los-Kan-Los

and you thereby committed an offence punishable under section 41 (a) of the Criminal Code (Cap 42 Laws of the Federation).

Count 2:

That you, Alhaji Zanna Bukar Umoru Mandara (M) of No. 5 Rasaq Balogun Street, Surulere, Lagos, at Lagos, in the Lagos Judicial Division between the 1st day of March, 1981 and the 30th day of January, 1982 advisedly attempted to seduce Sergeant Garba Muga, Sergeant Jonathan Adzande and Corporal Ibrahim Ango, serving as members of the Armed Forces of the Federation from duties and allegiance to the President, and you thereby committed an offence punishable under section 44 (a) of the Criminal Code (Cap 42 Laws of the Federation).

Count 3:

That you, Alhaji Zanna Bukar Umoru Mandara (M) of No. 5, Rasaq Balogun Street, Surulere, Lagos, at Lagos, in the Lagos Judicial Division, between the 1st day of March, 1981 and the 30th day of January, 1982 did incite Sergeant Garba Muga, Sergeant Jonathan Adzande and Corporal Ibrahim Ango, serving as members of the Armed Forces of the Federation to commit an act of mutiny and you thereby committed an offence punishable under section 44 (b) of the Criminal Code (Cap 42 Laws of the Federation),

Count 4:

That you, Alhaji Zanna Bukar Umoru Mandara (M) of No. 5 Rasaq Bukar Umoru Mandara (M) of No. 5 Rasaq Balogun Street, Surulere, Lagos, at Lagos, in the Lagos Judicial Division between the 1st day of March, 1981 and the 30th day of January, 1982 attempted to cause disaffection amongst persons serving as members of the Armed Forces of the Federation, namely: Sergeant Joel Babu Kilba and Warrant Officer Bukar Dunama Lassa, by the offer of money and wrist watch to each of them, and you thereby committed an offence punishable under section 46 (1) (a) of the Criminal code (Cap 42 of the Laws of the Federation).”

The offences charged were all offences under the Criminal Code which did not arise from matters within the civil jurisdiction of the Federal High Court. The issue of jurisdiction was not raised before the Federal High Court. The objection taken before the Federal High Court related to failure to provide proofs of evidence and failure to bring the appellant into court in a manner authorised by law.

Following his conviction and sentence, the appellant, aggrieved, appealed to the Court of Appeal from the High Court. Three grounds were set out as his grounds of complaints in the notice of appeal. None of them raised the issue of the jurisdiction of the Federal high Court to try the appellant.

Before the hearing at the Court of Appeal, with the leave of the Court of Appeal, a fourth ground was added and that fourth ground for the first time raised the issue of jurisdiction. That ground reads as follows:

“The Federal High Court has no jurisdiction to try the appellant.”

That was the only ground argued before the Court of Appeal.

The Court of Appeal (Kazeem, Ademola and Nnaemeka-Agu, JJ.C.A.) heard the appeal. The court (Ademola, J.C.A. dissenting) dismissed the appeal and held that the Federal High Court had jurisdiction to try the appellant by virtue of section 7 (3) of the Federal High Court Act. In this regard, I would, for emphasis, quote from the concluding paragraphs of the lead judgment of Nnaemeka-Agu, J.C.A. It reads:

“Now section 7 (1), (2) and (3) of the Federal High Court Act provides as follows:

(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters—

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

(b) connected with or pertaining to:

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

(ii) customs and excise duties;

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

(c) arising from

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

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.

(3) The jurisdiction conferred under the foregoing sub-section in respect of criminal causes and matters shall without prejudice to the generality of that sub-section and subject to section 63 (3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

Clearly, sub-section (2) confers upon the court, criminal jurisdiction over matters arising out of or connected with any of the matters to which civil jurisdiction is conferred by sub-section (1). This is not the issue in this appeal. The issue is whether by sub-section (3) the Act confers upon the court in addition to the jurisdiction conferred by sub-section (2), jurisdiction over provisions of the Criminal Code in relation to offences for which the Attorney-General of the Federation may initiate proceedings or whether sub-section (3) is not designed to confer additional jurisdiction over matters contained in the Criminal Code but merely re-affirms that the court may try such offences in the Code where they relate to matters over which jurisdiction is conferred by sub-section (2). It appears to me that in the ascertainment of the true legislative intention, the word ‘includes’ in sub-section (3) is most significant. Dealing with the word, the learned author of Maxwell on Interpretation of Statutes (12th Edition) at page 270 says:

‘. . . the word “include” is used in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.’

See Dilworth v. Commissioner of Stamps (1899) AC 99, at p. 105. It is ordinarily used to produce a cumulative effect where it is used in a statute ...

‘The purpose of the use of such an expression, in my view, is to widen the scope of the concepts covered by the term “decision.” It is certainly not to narrow its meaning as has been suggested by counsel.’ Applying these principles to the ascertainment of the legislative intent of section 7 (3) of the Federal High Court Act, it appears to me that the purpose of the words ‘shall’ . . . ‘include original jurisdiction in respect of offences in relation to which proceedings may be initiated at the instance of the Attorney General of the Federation’ is to confer upon the court jurisdiction over such matters additional to that conferred under section 7 (2) . . .

In view of what I have said about the cumulative effect of the words ‘shall . . . include . . .’ in section 7 (3) of the Federal High Court, it follows that the court had power to try offences contrary to sections 41 (a), 44 (a) and (b), 46 (1) (a) of which the appellant was charged, tried and convicted before the Federal High Court.”

Ademola, J.C.A., dissenting from this decision and in his judgment, observed and commented:

“The learned Director of Public Prosecution has said that although the jurisdiction of the Federal High Court to try the case by virtue of section 230 of the Constitution went with the decision in BRONIK case SC. 110/83, the Federal High Court still has jurisdiction by virtue of section 7 of the Federal High Court Act 1973 particularly sub-section (3) of it to try the appellant.

It is my view that this cannot be right. I agree with Nnamani, J.S.C. in the BRONIK case (supra) on what matters are within the purview of the Federal High Court. He said at page 12 of the judgment thus:

“I do not myself think that one can arrive at a correct interpretation of section 7 of the Act No. 13 of 1973 without constantly bearing in mind the object for which the Federal Revenue Court (as it then was) was set up. It was essentially to deal expeditiously with matters pertaining to the revenue of the Government of the Federation which it was felt at the time were not being so handled by the State High Courts.”

I do not think that has changed . . . It is a far cry from jurisdiction about revenue matters to exercising jurisdiction as to offences under the public order or public security under Part 2 of the Criminal Code as it is being contended by Mr. Nwazojie . . . I do not think section 7 (3) of the Federal High Court Act can confer any additional jurisdiction over and above section 7 (2) of the Federal High Court act as so stated by my learned brother in his judgment. Such a conclusion that gives the Federal High Court jurisdiction to try offences under section 41 (a), 44 (a), 44 (b) and 46 (1) (a) of the Criminal Code must in my view be against section 230 of the Constitution.”

The appellant was dissatisfied with the majority decision of the Justices of the Court of Appeal and appealed against it to this Court on 2 grounds of appeal. The two grounds are:

“(1) The Federal Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to try the appellant:

PARTICULARS

Section 7 (3) of the Federal High Court Act is purely explanatory of section 7 (2) and ought not to have been construed as enlarging its scope.

(2) The Federal Court of Appeal erred in law in holding that the appellant has been tried before a court of competent jurisdiction and the conviction ought to have been quashed.”

Although counsel appearing for the parties in this appeal addressed us at great length, the issue to be determined in this appeal is confined within very narrow confines. It is in reality confined to the correct interpretation of ‘shall . . . include’ as used in the provision of section 7 (3) of the Federal High Court Act.

It is whether the words import or confer additional criminal jurisdiction totally unrelated to matters in respect of which jurisdiction was conferred in section 7 (1) of the Federal High Court Act OR whether the said words are intended to explain the totality of the criminal jurisdiction conferred by section 7 (2) arising from matters in respect of which civil jurisdiction was conferred in sub-section (1) of section 7.

The whole exercise is therefore one of interpretation of sub-section (3) of section 7 of the Federal High Court Act. Therefore, applying the principles of the well established canons of construction, it seems to me that the sub-section cannot bear the meaning ascribed to the section by the majority Justices of the Court of Appeal.

Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive and I find this to be so in all our laws including all the previous Constitutions of this country. Jurisdiction is a power clearly visible to all beholders of the Constitution and the law confers it. Microscopic eyes are not required in order to unearth it.

Counsel’s submissions on the issue raised deserve deliberative consideration and I shall now proceed to examine them.

It appears that the decision of this Court in Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. SC. 110/1982 delivered on the 10th day of June, 1983 set the Court of Appeal off on its interpretative mission of section 7 (3) of the Federal High Court Act. The road to the exercise by the Federal High Court of omnibus criminal jurisdiction via section 230 (1) (a) of the Constitution having been closed by that decision a new route via section 7 (3) of the Federal High Court Act was found.

The question before us now therefore is whether this route is really open to the Federal High Court to exercise the jurisdiction it assumed in this matter.

The court’s interpretative jurisdiction is not meant for legislative action but for the realisation of the intention of the makers of the law.

Chief Williams, S.A.N., learned Counsel for the appellant submitted that sub-section (3) of section 7 of the Federal High Court Act is purely explanatory of sub-section (2) thereof. He contended that the word “include” in the context of section 7 (3) merely indicates for the avoidance of doubt, a part of what is comprehended under the provision of section 7 (2).

In my opinion, this appears to be the natural meaning of the word ‘include’ in the context in which the word ‘include’ appears in section 7 (3) having regard to the contents of section 7 (1) and (2). It means that the jurisdiction conferred by inference comprised the said offences under the Criminal Code of the same genus.

Section 7 (3) appears to have been interpreted by the Court of Appeal (Nnaemeka-Agu, J.C.A. and Kazeem, J.C.A.) without regard to the context in which the word ‘include’ was used. The criminal jurisdiction conferred on the Federal High Court by section 7 (2) having been related to causes and matters in respect of which civil jurisdiction has been conferred by section 7 (1); section 7 (3) by virtue of the terms of the section must of necessity relate to section 7 (1). That sub-section (3) cannot stand alone and independent of sub-section (1).

It is observed that several offences arising from matters in section 7 (1) are contained in the relevant different enactments and the inclusion of the offences under the Criminal Code may in this wise, be regarded as an enlargement of the criminal jurisdiction but this jurisdiction is limited to matters in respect of which the Federal High Court has civil jurisdiction under section 7 (1).

I find the definition of the word ‘include’ given by Sachs, J. in the case of Commissioners of Customs & Excise v. Savoy Hotel Ltd. (1966) 1 WLR. 948 apposite and comprehensive. At page 954 Sachs, J. said:

“ ‘Including’ is a word to which parliamentary draftsmen seem considerably addicted: one reason for this may be that in law it can have, according to its contextnot only one or other of simple but in essence quite differing effects (for instance, in relation to the words that follow, it may be found to have been used simply to enlarge, to limit, to define exhaustively or for the avoidance of doubts to repeat the preceding word or phrase) but it may also be used to secure on one and the same occasion more than one of those effects, thus putting the draftsman, but not necessarily the court in a happy position.”

In its ordinary sense, the word “including” is not used as a word of enlargement. It is used as a word of enlargement in its exceptional sense. In Montello Salt Co. v. Utah 221 US 452, 55 L.Ed. 810, the Supreme Court of the United States observed at p.466 (US) 815 (L.Ed.):

“the court also considered that the word ‘including’ was used as a word of enlargement, the learned court being of opinion that such was its ordinary sense. With this, we cannot concur. It is its exceptional sense, as the dictionary and the cases indicate.” (Italics mine).

Nnaemeka-Agu, J.C.A. in his judgment was of the opinion that the ordinary connotation of the word ‘include’ when used in a statute is to produce a cumulative effect. In his words:

“It is ordinarily used to produce a cumulative effect where it is used in a statute.”

This, in my view, is not strictly the correct view of the ordinary use of the word “include” in a statute.

Kenyon, J. in R. Wing Matting Co. v. Willcuts 49 ALR. 459 at p.465 (2nd column) remarked:

“In Dumas v. Boulen, McGloin (La) 274, 278, it is pointed out that the word include has two shades of meaning. The court says ‘include’ . . . has . . . two shades of . . . meaning. It may apply where that which is affected is the only thing included, . . . [and] it is also used to express the idea that the thing in question constitutes a part only of the contents of some other thing. It is more commonly used in the latter sense.”

Intention of the Legislature in Enacting Section 7 (2) of the Act.

It is abundantly clear from the express terms of the sub-section (2) that the intention of the legislature is to confer criminal jurisdiction to deal with offences arising from causes matters in respect of which civil jurisdiction has been conferred. This intention will lighten the path to the correct interpretation of sub-section (3) of section 7. I therefore find myself in agreement with Lord Reid in Gartside v. Inland Revenue Commissioner (1968) AC. 553 at 612 when he said:

“It is always proper to construe an ambiguous word or phrase in the light of the mischief which the provision is obviously designed to prevent, and in the light of the reasonableness of the consequences which follow from giving it a particular construction.”

And the learned authors of Maxwell on Interpretation of Statutes 12th Edition page 105 cautioned:

“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases which it seems highly improbable that the words in their wide primary or grammatical meaning express the real intention of the legislature.”

Mr. Ben Nwazojie, learned Director of Public Prosecutions of the Federation, in reply submitted that section 7 (3) of the Federal High Court Act stands on its own. He contended that it is only in this sub-section that the Criminal Code offences are introduced for the first time. In his view, if the crucial word ‘include’ in that sub-section is properly construed in the context and other relevant sections of the Act namely 7 (1), 7 (2), 8 (2) and 63 (3) are taken into consideration, one will come to the irresistible conclusion that jurisdiction is conferred in respect of Criminal Code offences but only for those offences where the Attorney-General of the Federation may initiate proceedings. He submitted and I agree wholly with him, that in ascertaining the legislative intention as expressed in section 7 (3) of Act No. 13 (of 1973), it is necessary to have recourse to the provisions of the Act as a whole, and in particular to those provisions of the Act which have some bearing on the section to be interpreted.

Adopting this approach, it is impossible to escape from the conclusion that the interpretation of section 7 (3) urged by Chief Williams is the correct interpretation. I find myself unable to accept the submission of the learned Director of Public Prosecutions of the Federation that section 7 (3) of the Federal High Court Act stands on its own. A proper reading of the whole section, i.e. sub-sections (1), (2) and (3) of section 7 of the Act, bears out the contention that it does not stand on its own. The words of sub-section (3) do not bear out that submission but contradict it.

Unless words no longer bear their true meaning, I hold that when the jurisdiction conferred in criminal causes and matters in sub-section (2) of section 7 is limited to causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of section 7, it was not the intention of the legislature to confer jurisdiction on the Federal High Court in respect of all Federal offences in the Criminal Code outside the class of offences expressly indicated.

As the criminal charges on which the appellant was arraigned, tried and convicted fall outside those matters, the Federal High Court was not competent to assume jurisdiction in respect of the charges.

The ground of appeal that the Federal High Court has no jurisdiction to try the appellant is, therefore, in my opinion, well founded. The appeal succeeds and I hold that the trial together with conviction and sentence of the appellant by the Federal High Court was a nullity for lack of jurisdiction. The decision of the Court of Appeal and Federal High Court are accordingly set aside. I hereby quash the conviction and sentence and discharge the appellant.

Eso, J.S.C. I agree with the judgment just read by my learned brother, Irikefe J.S.C., the preview of which he has kindly given me. I intend to add the following however, having regard to the Constitutional nature of this case.

Zanna Bukar Umoru Mandara was convicted by the Federal High Court on four counts of offences contrary to sections 41 (a), 44 (b) and 46 (1) (a) of the Criminal Code. The charges deal with forming an intention to remove the President of the country by unconstitutional means during his term of office, seducing military officers from their duties and allegiance to the President, inciting military officers to commit acts of mutiny and causing disaffection amongst persons serving as members of the armed forces.

He appealed to the Federal Court of Appeal, hereinafter referred to in this judgment as the Court of Appeal. In that court, the learned Senior Advocate, representing the appellant, raised the issue of the jurisdiction of the Federal High Court to try the appellant. Learned counsel filed a motion in that court on 3rd May 1983, asking for an adjournment of the hearing of the appeal on the ground that as the judgment in the case of Bronik Motors & Anor. v. Wema Bank Ltd., which was before this Court, was to be given on 10th June 1983 therein, the hearing of the appeal before the Court of Appeal should be postponed till a date after the 10th June, 1983.

This Court did give its decision in the Bronik Motors Case on 10th June, but as the learned Director of Public Prosecutions indicated to the Court of Appeal that notwithstanding the decision of this Court in that case he would still urge on the Court of Appeal that the Federal High Court had jurisdiction under the Criminal Code, the appeal was heard on 20th July, 1983.

The Court of Appeal (Kazeem, Ademola and Nnaemeka-Agu JJ.C.A.) in a majority judgment delivered by Nnaemeka-Agu J.C.A. and subscribed to by Kazeem J.C.A. with Ademola J.C.A. dissenting, came to the conclusion that—

“the decision of the Supreme Court in Bronik Motors Ltd. & Anor v. Wema Bank Ltd. is of little, if any, assistance in the issue which has arisen in the appeal.”

The Court was further of the opinion that this appeal turned on the proper interpretation of section 7 (3) of the Federal High Court Act No. 13 of 1973 which interpretation did not arise in Bronik Motor’s case. Nnaemeka-Agu J.C.A. then set down the provisions of s.7 of the Federal High Court Act and held—

“Clearly sub-section (2) [sic: that is, section 7 of the Act] confers upon the court criminal jurisdiction over matters arising out of or connected with any of the matters to which civil jurisdiction is conferred by sub-section (1). This is not the issue in this appeal. The issue is whether by sub-section (3) the Act confers upon the court, in addition to the jurisdiction conferred by sub-section (2), jurisdiction over provisions in the Criminal Code in relation to offences for which the Attorney-General of the Federation may initiate proceedings or whether sub-section (3) is not designed to confer additional jurisdiction over matters contained in the Criminal Code but merely reaffirms that the court may try such offences in the Code where they relate to matters over which jurisdiction is conferred by sub-section (2).” (Italics mine).

The learned Justice of the Court of Appeal then concluded that to ascertain the true legislative intention, the word “include” in sub-section (3) is most significant. The purpose of the use of the word, he said, was to widen the scope of the concepts covered by the term “decision” and not to narrow its meaning. He then held—

“Applying these principles to the ascertainment of the legislative intent of section 7 (3) of the Federal High Court Act, it appears to me that the purpose of the words ‘shall. . .include original jurisdiction in respect of offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation’ is to confer upon the Court jurisdiction over such matters additional to that conferred under section 7 (2) . . .under the section two distinct jurisdictions were conferred, namely (1) those which relate to matters enumerated in the Federal High Court Act and (2) those relating to matters in which proceedings could be initiated by the Attorney-General of the Federation.”

The learned Justice of the Court of Appeal then referred to the powers of the Attorney-General under section 160 (1) of the Constitution of the Federal Republic of Nigeria and held that in so far as sections 37 to 88 of the Criminal Code titled “Offences against Public Order” would be regarded as existing law within the meaning of section 274 (1) (a) of the 1979 Constitution and so must be deemed to be an Act of the National Assembly and it is a law on a matter on which the National Assembly could by virtue of s.11 (1) of the Constitution make laws coupled with his views on s.7(3) of the Federal High Court Act as regards “shall . . . include . . .” the Federal High Court had power to try offences for which the appellant is charged, tried and convicted that is, sections 41 (a), 44 (a) and (b), 46 (1) (a) of the Criminal Code.

It is against this majority decision of the Court of Appeal that the appellant has appealed to this Court.

The question for determination in this Court has been succinctly framed by the learned Counsel for the appellant Chief F.R.A. Williams (S.A.N.). It is—

“What is the true meaning and intent of section 7 (3) of the Federal High Court Act?”

Before referring to the submissions of learned Counsel in this case I would like to state here that the scope of our decision in the Bronik Motors case did not specifically extend to the provision of sub-section (3) of section 7 of the Federal High Court Act No. 13 of 1973, so it could not be said that the exercise of interpretation embarked upon by the Court of Appeal in regard to the provision thereof was an exercise in futility nor one of an attempt to seek not to be bound by precedent. In this direction I think Nnaemeka-Agu J.C.A. was right in his formulation of the problem before the Court of Appeal which is now the issue for our determination here in the passage of his judgment which I have already set out in this judgment (supra) to the effect that sub-section (3) of the Act either, by itself, sets out jurisdiction which is additional to the criminal jurisdiction which has been set out in sub-section (2) or it is a provision of mere reaffirmation that the Federal High Court may try such offences in the code where they relate to matters over which jurisdiction is conferred by sub-section (2).

It may be pertinent to set out herein, at this stage, the provisions of section 7 of the Federal High Court Act. It provides—

“7.

(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters—

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

(b) connected with or pertaining to—

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

(ii) customs and excise duties,

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

(c) arising from—

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

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.

(3) The jurisdiction conferred under the foregoing sub-section in respect of causes and matters shall without prejudice to the generality of that sub-section and subject to section 63 (3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The Head of the Federal Military Government may be order published in the Gazette confer jurisdiction on the Federal Revenue Court in respect of such other causes and matters of like nature as those set out in the foregoing sub-sections as he may from time to time at his discretion specify.”

In the Bronik Motors case what actually came up for determination was the civil jurisdiction of the court and Nnamani J.S.C. delivering the lead judgment of the Court had a historical excursion into the establishment of the Federal High Court and having examined the constitutional provisions appertaining thereto said—

“Those historical facts leave me in no doubt that it was the intention of the framers of the Constitution to confer unlimited jurisdiction on the State High Courts. It was deliberate . . . In my view that jurisdiction will diminish with time as in addition to the jurisdiction which I have conceded in this judgment it already has under sections 230, 237 and 42 of the Constitution, the Federal High Court is conferred by the National Assembly with no more jurisdiction in relation to other matters in the Exclusive and Concurrent Legislative Lists.”

It is with this in mind that one should look at the other decision of the learned Justice of the Supreme Court in the same case when he placed emphasis on the majority decision in the case of Jammal Steel Structures Ltd. v. African Continental Bank 1971 1 All N.L.R. (Part II) 208 where the learned Chief Justice said—

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

However this was dealing with the civil jurisdiction of the Federal High Court. In so far as the criminal jurisdiction is concerned sub-section (2) of section 7 of the Federal High Court Act (already set out in full supra) gives that court jurisdiction and powers in respect of criminal causes and matters “arising out”, (and this is important) “of or concerned with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.”

Up to this stage, the matter is easy as we have already determined in the Bronik case the scope of the jurisdiction in sub-section (1) of the section and to interpret sub-section (2) all one needs to do is to note the scope of that civil jurisdiction and clothe the Federal High Court with criminal jurisdiction in regard to matters within such determined scope.

It is this that has raised the importance of sub-section (3) in this case especially the interpretation to be placed on the words “shall without prejudice to the generality of that sub-section [that is, sub-section (2)] . . . include . . .”

Chief Williams in his submission has said that sub-section (3) of section 7 is merely (or to use his own words “purely”) explanatory of sub-section 2, whereas in the submission of learned Director of Public Prosecutions sub-section (3) stands on its own as a distinct provision and it is thus, by employing the use of the word “include”, an extension and not explanation of whatever jurisdiction sub-section (2) has conferred. Chief Williams drew out attention to the dictionary meaning of the word “include” as treated in the Oxford English Dictionary. It is obvious from the meanings ascribed to the word “include” to wit

“To contain, comprise embrace” and

(a) To contain as a member of an aggregate, or constituent part of a whole; to embrace as a sub-division or section; to comprise; to comprehend; and

(b) To contain as a subordinate element, corollary or secondary feature, to comprise virtually or by inference, to involve or imply

that there is support from the Dictionary for the position held by Chief Williams while the position held by learned Director of Public Prosecutions and the Court of Appeal also has defence from the Dictionary meaning to wit—

“To place in a class or category”

What then is the nature in which the word “include” has been used in this case? I cannot but again go into the historical background that led to the establishment of the Federal High Court which was principally meant to be a Revenue Court.

As this matter has been treated so exhaustively in the judgments delivered by this Court in the Bronik Motors case I do not intend to go over its treatment. It is however my considered view that apart from the jurisdiction which the Federal High Court has under sections 230, 237 and 42 of the Constitution of the Federal Republic of Nigeria 1979 every other jurisdiction must have been specifically conferred by the National Assembly (now the Federal Military Government). There has been no such conferring of criminal jurisdiction in regard to the sections of the Criminal Code under which the appellant was charged.

But even as regards ordinary canon of interpretation, once it is patent to the person interpreting that the words are capable of more than one meaning, he is at liberty to choose the appropriate one but it must be one that saves and not destroys the legislation. Indeed, it must not be an interpretation that leads to absurdity. See Gartfield v. Inland Revenue Commissioners 1968 A.C. 553.

Chief Williams has brought to our notice one consequence which might result in the interpretation placed on sub-section (3) of section 7 of the Federal High Court. The learned Senior Advocate has said that the sub-section refers only to the Criminal Code and not to the Penal Code with the consequence that the jurisdiction, if the Court of Appeal is right, will be exercisable only in the States that apply the Criminal Code (that is the nine Southern States of Nigeria) and not in the ten Northern States as those States apply only the Penal code and not the Criminal Code. I think this submission carries considerable weight especially when it is realised that the Penal Code existed before the Federal High Court came into existence and when it comes to vesting a court with specific jurisdiction care must be taken as to the words employed by the legislator.

I am of the firm view that to clothe the Federal High Court with jurisdiction other than those as specified by the Constitution, the legislator must be specific as to the jurisdiction it confers upon that court especially as each jurisdiction so conferred is a delimitation of the unlimited jurisdiction which has been conferred by the Constitution upon the State High Courts. Sub-section (3) of section 7 of the Federal High Court Act therefore is a mere amplification of the criminal offences in respect of which jurisdiction has been set out in sub-section (2) thereof and does not create any additional jurisdiction thereto.

I hold therefore, as my brother Irikefe J.S.C., has held, that the Federal High Court was without jurisdiction in the trial and conviction of the appellant and such trial and conviction are null.

ANIAGOLU, J.S.C. The judgment just read, in this appeal, by my learned brother, Irikefe, J.S.C., was made available to me by him in draft. I am in agreement with his reasoning and conclusion.

The issue was not whether the appellant had committed the acts with which he was charged but whether he was arraigned and tried by a court having jurisdiction to try him, namely, the Federal High Court.

It is agreed on all sides that the origins of the jurisdiction of the Federal High Court derive from the statute which hatched its precursor, the Federal Revenue Court, namely, Decree No. 13 of 1973, and that the boundaries of this jurisdiction are as set out in section 7 thereof. Unlike the regular High Courts of the States whose jurisdiction, from their very inception through a variety of colonial legislations to the different Constitutions ending up with the last 1979 Constitution had been “unlimited,” the Federal Revenue Court, which was the parent of the present Federal High Court, was created primarily for the singular purpose of dealing with causes or matters “relating to the revenue of the Government of the Federation . . .” (Section 7 (1) (a) of No. 13 of 1973).

Even when the 1979 Constitution came into force, section 236 (1) thereof continued the “unlimited” nature of the jurisdiction of the High Courts of the States, while its section 230 (1) was content to grant the Federal High Court jurisdiction:

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

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

The Federal High Court came into being, therefore, as the history of its origins does show (which was elaborately gone into by this Court in SC.110/82 Bronik Motors Limited and Another v. Wema Bank Limited decided on 10th June 1983, yet unreported) as a child of fiscal expediency, to collect the revenue of the Federal Government and deal, with despatch, with the fiscal measures promulgated by the Federal Government, having enough criminal jurisdiction with which to compel obedience or issue orders in respect of those causes or matters arising out of or connected with any of those matters for which it was granted jurisdiction. It is against the background of this constriction to its jurisdiction and the purposes for its establishment that one must necessarily interpret Section 7 (3) of Decree No. 13 of 1973 in its relationship to sub-sections (1) and (2) of the same section, in terms of its creating, or not creating, a new head of jurisdiction different from the said sub-sections (1) and (2).

It is significant that in conferring jurisdiction upon the court in sub-sections 1 and 2, the Decree uses the positive words

“The Federal Revenue Court shall have . . .” (Federal Revenue Court was changed to Federal High Court by S.230 (2) of the 1979 Constitution),

whereas in sub-section (3) no such formal words are used. Instead, the sub-section talks of the “jurisdiction conferred under the foregoing sub-section” (namely sub-section 2) “in criminal causes or matters.” The same goes for S.230 (1) of the 1979 Constitution. It states that

“. . . the Federal High Court shall have jurisdiction–.” Significantly, other sections of the 1979 Constitution follow the same pattern. Examples are section 212 giving original jurisdiction to the Supreme Court in certain matters; S.219–giving the Federal Court of Appeal jurisdiction to hear appeals from subordinate courts; S.236–granting unlimited jurisdiction to the High Courts of the States; S.242 (1) giving appellate jurisdiction to the Sharia Court of Appeal of a State; and S.247 also granting appellate jurisdiction to the Customary Court of Appeal of a State. In each one, as well as in sub-sections 7 (1) and (2) of Decree No. 13 of 1973, the law makers give the courts jurisdiction by positive and categorical words

“the Court shall have”

or words to the same import and effect.

I am clearly not in doubt that if the law makers wanted to have another head of jurisdiction conferred by sub-section 3 of section 7 of No. 13 of 1973 they would have said so, as they have said in those other sections hereinbefore stated, in more categorical terms. I agree that the Federal High Court was without jurisdiction to have tried the appellant.

His trial and conviction by that court were, accordingly, null and void and of no legal effect. He is entitled to be discharged and I accordingly discharge him, without prejudice to whatever line of action the Attorney-General may, or may not, wish to take.

UWAIS, J.S.C. I have had the opportunity of reading in draft the judgment read by my learned brother Irikefe, J.S.C. For the reasons given by him I agree that section 7 sub-section (3) of the Federal Revenue Court Act, 1973 does not vest the Federal High Court with jurisdiction to try all the federal offences under the Criminal Code. In my opinion to interpret the provisions of the sub-section otherwise will lead to absurdity.

I will therefore allow the appeal and declare the trial of the appellant before the Federal High Court a nullity. The convictions and sentences are accordingly quashed.