JURISDICTION OF THE FEDERAL HIGH COURT AND STATE HIGH COURTS: SUPREME COURT RECOMMENDS CONSTITUTIONAL AMENDMENT

In the recent case of CBN v. Rahamaniyya G. R. Ltd. [2020] 8 NWLR (Pt. 1726) 314 at 341-342, Okoro JSC remarked:

I have noticed that appeals on issue of jurisdiction of the Federal High Court under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) constitute a substantial fraction of the appeals before this Court in spite of all the pronouncements this Court, and even the Court of Appeal have made and yet the issue is far from being resolved. I wish to propose the point that since it appears that the Court is unable to streamline the issue of jurisdiction to the satisfaction of parties, the Legislature should make a definite amendment of the Constitution streamlining in unmistakable terms the matters which should go to the Federal High Court and such matters which shall be entertained by State High Courts. Such amendment would go a long way in guiding both litigants and the courts in mathematical clarity which court has jurisdiction to entertain which matter.

The tone of his Lordship, Okoro, JSC, above depicts frustration and helplessness on the face of the recurrent disagreements pertaining to the jurisdiction of the Federal High Court and the State High Courts. Indeed, the Supreme Court and the Court of Appeal have tried in a host of judicial pronouncements to lay the matter to rest. However, the issue has become a restless spirit. For instance, in John Shoy Int’l Ltd. v. F.H.A. [2016] 14 NWLR (Pt. 1533) 427 at 456-457, Nweze, JSC gave what we had thought would be a lasting guide as follows:

Now, from a conspectus of recent decisions, it would be correct to assert that this court has, now, taken the position that in considering the issue of the jurisdiction of the Federal High Court under section 251(1) (supra), both the status of the parties (that is, whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at.

The thin line (a thick one at that) of controversy has been the status of the parties (that is, whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in Section 251). The Supreme Court has settled the point that, to approach the Federal High Court, it is not enough that one of the parties is the Federal Government or any of its agencies. It is also not enough that the subject matter falls under the items enumerated under Section 251(1). Before any action against the Federal Government or any of its agencies can be commenced at the Federal High Court, the subject matter of the dispute must also fall under any of the items mentioned under Section 251(1).

Aside matters involving the Federal Government or any of its agencies, other parties are at liberty to approach the Federal High Court provided the subject matter of dispute is one of those listed under Section 251(1) of the Constitution. However, parties are sometimes unable to precisely determine whether the subject of dispute falls under Section 251.

Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) made elaborate provisions on such matters that can be commenced at the Federal High Court. The Section provides as follows:

251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court 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 the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;

c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;

d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:

Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;

e) arising from the operation of the Companies and Allied Matters Act or any other enactments replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;

f) any Federal enactment relating to copyright, patent, designs, trademarks, and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;

g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their effluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;

h) diplomatic, consular arid trade representation;

i) citizenship, naturalisation and aliens, deportation or persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passport and visas;

j) bankruptcy and insolvency;

k) aviation and safety of aircraft;

l) arms, ammunition and explosives;

m) drugs and poisons;

n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);

o) weights and measures;

p) the administration or the management and control of the Federal Government or any of its agencies;

q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and

s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly.

Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.

(3)  The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.

(4)  The Federal High Court shall have and exercise jurisdiction to determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant.

In acknowledging that confusion might arise and that a party might inadvertently approach the Federal High Court, the Federal High Court Act contains a provision under Section 22 that will enable the Federal High Court to transfer the matter to a particular State High Court for hearing and determination.

Notwithstanding the above provisions and judicial clarifications, parties and their respective Counsel are still caught up in the web of jurisdictional controversies. The Supreme Court has now called for a constitutional amendment, which seems to be the only way out.

It is recommended that in considering the amendment of Section 251 of the Constitution, a host of judicial decisions touching on the jurisdiction of the Federal High Court should be assembled and neatly collected to form part of the Constitution, or preferably, part of an Act of the National Assembly in this regard.

Hopefully, this will reduce the influx of preliminary objections bordering on jurisdictions. The Courts are called upon to award huge costs against any party and counsel who files needless objections and frivolous appeals on the issue.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.

For advert enquiries -
09079024002 stephenlegalblog@gmail.com info@stephenlegal.ng

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