HON. JUSTICE ISA AYO SALAMI v. NATIONAL JUDICIAL COUNCIL & ORS
(2014)LCN/6946(CA)
RATIO
JURISDICTION: WHETHER THE COURT MUST CONSIDER ITS JURISDICTIONAL COMPETENCE IN THE EXERCISE OF ITS POWER UNDER THE CONSTITUTION
The trial Court must determine the question of jurisdiction raised before it before referring it to this Court. It must first attempt to answer that question itself, before it would have the jurisdictional competence to refer it to this Court. It is therefore, my considered view that the lower Court by having not ascertained whether it has jurisdiction in the first place to entertain the action filed by the Applicant, let alone making an order in the proceedings, it has no competence or right whatsoever to refer the said question to this Court to answer. In Abubakar vs. A. G., Federation (2007) 6 NWLR Part 1031 page 625, the Supreme Court, per Aderemi, J.S.C., held that to grant a reference properly known to law, the following conditions must co-exist:
1. “ The question to be referred must be as to the interpretation of the provisions of the Constitution. Indeed; this is the fundamental basis upon which such a reference must be predicated.
2. That question must be seen to arise in the proceedings relating to that question before the Court making the reference.
3. Of course, the matter for reference, must involve a substantial question of law, while the Court must have decided the substantiability of the question which is subject matter of the reference.
4. There must not be, by any stretch of imagination any pronouncement by the Court making the reference to a higher Court on the law relating to the question so referred.”
He further stated that the conditionalities must co-exist and they must be in place before any reference properly known to law can be made. Also, Onnoghen, J.S.C., in the same Abubakar,s case warned that: “If what the Court of Appeal has done in this case is to be encouraged, it means a license is granted to that Court to shift its particular responsibilities under the Constitution to the Supreme Court. That apart, the Supreme Court and, indeed any Court for that order cannot legally assume jurisdiction over a matter which the Constitution or the legislature has not expressly conferred on it…. If the matter is dealt with in the form in which it is referred to this Court, it means that it is this Court that will now determine the matter as a whole leaving nothing for the Court of Appeal to do whereas under a normal reference, this Court would have answered the questions referred to it, and returned the matter to the Court of Appeal for completion. The provision of the Constitution does not envisage a wholesale transfer of the case before the Court of Appeal to the Supreme Court as has been done in this case?”
The warning sounded by the apex Court, per Onnoghen, J.S.C., is loud and clear, such conduct should not be encouraged by any Court. It seems clear therefore, that in the same vein, this Court is drumming it into the ears of the lower Court that abdication of its responsibilities shall not be tolerated and encouraged by this Court. The premise under which it exercised the power referring the said question to this Court is foggy and unascertainable since it’s very foundation to entertain the suit in the first place in that Court is under heavy attack. It has to prove its worth to hear the case before referring any matter by way of case stated. Having not ascertained its own jurisdictional competence to exercise its power under Section 295(21) of the 1999 Constitution (as amended) since its jurisdiction was challenged, the question referred to this Court pursuant to the said constitutional provisions is unfounded as it did not seem to have arisen in proceedings before the lower Court and is bereft of any substantial question of law. Consequently, the same is hereby struck out for failing to comply with the prerequisites set out above. Per THERESA NGOLIKA ORJI-ABADUA. J.C.A
