ALHAJI ATIKU ABUBAKAR V. THE ATTORNEY-GENERAL OF THE FEDERATION & ORS
In The Supreme Court of Nigeria
On Thursday, the 25th day of January, 2007
SC.7/2007
RATIO
CONSTITUTIONAL LAW: THE PROVISION OF SECTION 295(3) OF THE 1999 CONSTITUTION AS REGARDS A REQUISITE JURISDICTION OF THE SUPREME COURT
It has to be emphasized that for the Supreme Court to have the requisite jurisdiction to entertain a matter vide the process of reference, the provisions of section 295(3) of the 1999 Constitution must be strictly complied with. 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 matter, cannot legally assume jurisdiction over a matter which the Constitution or the legislature has not expressly conferred on it. The original jurisdiction of this court is as provided in section 232 of the 1999 Constitution and this court does not enjoy concurrent original jurisdiction with the Court of Appeal in respect of the matter under ‘reference’, I hold the view that the Supreme Court has no jurisdiction to entertain the ‘reference’ as made in the instant case. PER
P. O. ADEREMI, J.S.C
INTERPRETATION OF STATUTE: QUESTION AS TO THE INTERPRETATION OR APPLICATION OF THE PROVISIONS OF THE CONSTITUTION
The law is sacrosanct that where any question as to the interpretation or application of the provisions of the Constitution arises in any proceedings in any court of law and in any part of Nigeria, (the Supreme Court being an exception); the Court of Appeal or any Federal or State High Court seised of matter and properly convinced that the question so arising involves a substantial question of law, may and shall, if any of the parties to the proceedings so requests, refer the question to the next court of superior jurisdiction to it. PER
P. O. ADEREMI, J.S.C
JUSTICES
IDRIS LEGBO KUTIGI Justice of The Supreme Court of Nigeria
UMARU ATU KALGO Justice of The Supreme Court of Nigeria
GEORGE ADESOLA OGUNTADE Justice of The Supreme Court of Nigeria
ALOMA MARIAM MUKHTAR Justice of The Supreme Court of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
Between
ALHAJI ATIKU ABUBAKAR Appellant(s)
AND
THE ATTORNEY-GENERAL OF THE FEDERATION
INSPECTOR GENERAL OF POLICE (IGP)
THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA
THE PRESIDENT OFTHE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA
SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE FEDERAL REPUBLIC OF NIGERIA
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
- L. KUTIGI, AG. C.J.N. (Delivering the Leading Ruling): By section 239(1)(b) & (c) of the 1999 Constitution, original jurisdiction is conferred on the Court of Appeal to “hear and determine any question as to whether:
(b) the term of office of the President or Vice-President has ceased; or (c) the office of President or Vice-President has become vacant.
The plaintiff by originating summons pursuant to the said section 239 applied to the Court of Appeal for the determination of the following (3) questions –
“I. Whether having regard to the combined provisions of section 135 and 142(2) of the Constitution of the Federal Republic of Nigeria, 1999, the plaintiff’s terms of office as Vice-President, Federal Republic of Nigeria which commenced on 29th of May, 2003 still subsists.
2. Whether having regard to the provisions of sections 142, 143, 144 and 146 of the Constitution of the Federal Republic of Nigeria, 1999, or any other provisions of the Constitution of the Federal Republic of Nigeria, 1999 or any law, the President of the Federal Republic of Nigeria can declare vacant the office of the plaintiff as Vice-President of the Federal Republic of Nigeria.
3. Whether having regard to the clear provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999, the President of the Federal Republic of Nigeria can withdraw, tamper or interfere with or violate the immunity conferred on the plaintiff as the Vice-President of the Federal Republic of Nigeria by that section AND OR direct his arrest or prosecution.”
Without attempting to answer the questions placed before it, the Court of Appeal purportedly acting under section 295(3) of the Constitution suo moto proposed to counsel on both sides to refer the same questions set out above to the Supreme Court to answer.
Counsel all agreed with the proposal. These questions are repeated on page 206 of the record. The questions now is – Can the Court of Appeal validly transfer the matter or suit properly instituted before it to this court for hearing or determination The answer in my view is clearly in the negative. All the (3) questions cannot be said to have arisen from the proceedings. The questions are the very subject matter of the suit. The questions should therefore not be answered by this court (see for example Gamioba v. Esezi II (1961) All NLR 584; (1961) 2 SCNLR 237; Bamaiyi v.Att. Gen. of Federation (2000) 6 NWLR (Pt. 661) 421; Ijegwu v. Federal Republic of Nigeria (2001) 13 NWLR (Pt. 729) 103). For a constitutional question to “arise in the course of proceedings”, it must not have formed part of the question for determination in the original suit as in this case. It must have arisen “ex tempore” or “ex improviso” (see Bamaiyi v. Att. Gen. of Federation (supra). Section 295(3) of the Constitution does not confer upon the Court of Appeal power to transfer a cause to the Supreme Court for hearing or determination. And I so hold. I commend counsel on both sides for seeing with this court that the alleged reference is irregular as it does not comply with the law. They are right. The reference under consideration is therefore incompetent. It is hereby struck-out. The suit is in the interest of justice remitted to the Court of Appeal, Abuja for immediate determination as time is fast running out. I make no order as to costs.U. A. KALGO, J.S.C: This matter came to this court from the Court of Appeal Abuja, by way of reference under section 295(3) of the 1999 Constitution. Section 295(3) provides:-
“Where any question as to the interpretation or application of’ this Constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so request, refer the question to the Supreme Court which shall give its decision upon question and give such directions to the Court of Appeal as it deems appropriate”.
(Italics mine)
By this provision of the Constitution, there are conditions set out therein before any reference is made by the Court of Appeal to this court to wit:
(1) a question must concern the interpretation or application of the Constitution; it must arise in the course of the proceedings before the court;
(3) it must involve a substantial question of law. If those conditions are fulfilled then the Court of Appeal can on its own motion suo moto refer the question for interpretation to this court or if any of the parties before it requests or applies for such reference.
From the record sent to this court in this matter, it appears to me clearly that only conditions (1) & (2) are complied with, even though from the appearance of parties in the Court of Appeal (on page 190) when suggestion for transfer was made by the court and parties were heard, up to the time the ruling for interlocutory injunction was given (page 205 – 209). There was no order formally made by the Court of Appeal making a reference of the case to this court. Be that as it may, the purported reference appears to be a full transfer of the matter to this court which does not comply with the provisions of section 295(3) of the 1999 Constitution. In this court, learned counsel for the parties all conceded that the purported reference or transfer to this court was wrong and asked the court to return the matter back to the Court of Appeal for expeditious hearing and determination, I agree with them. In the circumstances, it is my respectful view that the reference to this court in this matter was not in accordance with the provisions of the Constitution and the decisions of this court on similar cases of reference. See Bamaiyi v. Federal Republic of Nigeria (2006) 12 NWLR (Pt. 994) 221. This court cannot take any action on the so called reference which is in fact a wholesale transfer of the appeal.
This court has no jurisdiction to hear the appeal at this stage when no decision on it was made by the Court of Appeal For the above reasons and the more detailed ones given in the leading ruling of Kutigi, CJN, I also agree that this court has no jurisdiction to entertain the purported reference on this case. I therefore accordingly strike it out and order that the whole matter be sent back to the Court of Appeal for expeditious hearing and determination.
I make no order as to costs.G. A. OGUNTADE, J.S.C: Court: It is ordered that the suit be remitted to the Court of Appeal to enable it hear the suit.A. M. MUKHTAR, J.S.C: Suit sent back to the Court of Appeal for hearing and determination.W. S. N. ONNOGHEN, J.S.C: By an originating summons filed on the 4th day of January, 2007 in the Court of Appeal, Holden at Abuja in suit No. CA/A/2/M/07, the plaintiff sought the determination of the following questions:
“1. Whether having regard to the combined provisions of section 135 and 142(2) of the Constitution of the Federal Republic of Nigeria, 1999, the plaintiff’s terms of office as Vice-President, Federal Republic of Nigeria which commenced on 19th of May, 2003 still subsists.
2. Whether having regard to the provisions of sections 142, 143, 144 and 146 of the Constitution of the Federal Republic of Nigeria, 1999, or any other provisions of the Constitution of the Federal Republic of Nigeria, 1999 or any law, the President of the Federal Republic of Nigeria can declare vacant the office of the plaintiff as Vice-President of the Federal Republic of Nigeria.
3. Whether having regard to the clear provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999, the President of the Federal Republic of Nigeria can withdraw, tamper or interfere with or violate the immunity conferred on the plaintiff as the Vice-President of the Federal Republic of Nigeria by that section AND OR direct his arrest or prosecution.”
The plaintiff also sought the following reliefs from that court:
“(i) A DECLARATION that the term of office of the plaintiff as the Vice-President of the Federal Republic of which commenced from 29th of May, 2003 still subsists and does not terminate until 29th of May, 2007.
(ii) A DECLARATION that the President has no power under the Constitution of the Federal Republic of Nigeria, 1999 or any other law to declare the office or seat of the plaintiff as the Vice-President of the Federal Republic of Nigeria vacant.
(iii) A DECLARATION that the purported declaration by the President of the Federal Republic of Nigeria of the office of the plaintiff as Vice-President of the Federal Republic of Nigeria vacant is unconstitutional, illegal, null and void, and of no effect whatsoever.
(iv) AN ORDER setting aside the withdrawal of all the rights, entitlements inclusive all security details, staff of the plaintiff as directed by the President of the Federal Republic of Nigeria.
(v) AN ORDER restoring all the rights, privileges, entitlements and or benefits howsoever of the plaintiff as the Vice-President of the Federal Republic of Nigeria.
(vi) AN ORDER of perpetual injunction restraining the defendants whether by themselves, agents, privies, servants, or otherwise howsoever from impugning or violating the constitutional immunity conferred on the plaintiff as the Vice-President of the Federal Republic of Nigeria.
(vii) AN ORDER of perpetual injunction restraining the 3rd, 4th, 5th and 6th defendants whether by themselves, their agents, privies, servants or otherwise howsoever from considering any nominee from the President to the office of the Vice-President.
(viii) AN ORDER of perpetual injunction restraining the 6th defendant whether by itself, its agents, privies servants or otherwise howsoever from considering and or giving effect to the President’s letter informing them of the declaration of the seat and or office of the plaintiff as the Vice-President of the Federal Republic of Nigeria vacant.”
The action was instituted in the Court of Appeal by virtue of the provisions of section 239 of the Constitution of the Federal Republic of Nigeria, 1999 which confers original jurisdiction on that court to hear and determine any question as to whether, inter alia, the term of office of the President or Vice-President has ceased, or the office of President or Vice-President has become vacant. It should be noted that the 1st defendant in this case has also filed a counter claim to the action of the plaintiff seeking a determination of certain questions and claiming relevant relief’s. The originating summonses filed by the parties are supported by affidavits and counter affidavits.
When the matter came before the Court of Appeal on the 10th day of January, 2007, the court made the following observation:
“We appreciate that this is a very grave constitutional issue. Time is of the essence. The Nation should not be held in suspense for too long – it will not be good for the nation. We also bear in mind that no matter what decision we reach, one of you will appeal to the Supreme Court. To save the nation from further anxiety, we would ask for your view about making reference of this matter to the Supreme Court so that the issue can be settled as quickly as possible once and for all.”
It is on record that learned counsel for the parties supported the proposal. Based on the support from counsel for the parties, the Court of Appeal then without even conducting any further proceedings in the matter or resolving the conflicting affidavit evidence before it and formulating the issues arising from the proceedings before it ‘referred’ the very issues formulated by counsel for the plaintiffs for its determination to the Supreme Court for determination. In effect, what the Court of Appeal did is to transfer the cases pending before it in its original jurisdiction to the Supreme Court for determination irrespective of the fact that the Supreme Court does not share the same original jurisdiction with the Court of Appeal.
When the matter came up this morning, the court asked learned counsel for the parties to address it on the issue whether the “reference” made by the Court of Appeal in the circumstances of this case is proper having regard to the provisions of section 295(3) of the Constitution of the Federal Republic of Nigeria, 1999. In short counsel for the parties agreed that the “reference” as made in the instant case is incompetent.
From the clear provisions of section 295(3) of the 1999 Constitution it is not every question requiring constitutional interpretation that should be referred to the Supreme Court and that before such a reference is made, the following must be present inter alia,
(a) the constitutional question must be substantial;
(b) the constitutional issue must arise in the proceedings before the Court of Appeal; and
(c) there must be a substantial question of law so found by the court of Appeal before reference is made.
See Gamioba v. Esezi II (1961) 2 SCNLR 237; Olawoyin v. C.O.P (No.2) (1961) 2 SCNLR 278; and Bamayi v. A.-G., of the Federation (2001) 12 NWLR (Pt.727) 468.
In the instant case and as pointed out earlier in this ruling, no proceeding was conducted and any order made in the matter before the alleged reference. In fact, what that Court of Appeal did was to transfer the case as filed to the Supreme Court for determination. It has to be emphasized that for the Supreme Court to have the requisite jurisdiction to entertain a matter vide the process of reference, the provisions of section 295(3) of the 1999 Constitutionmust be strictly complied with. 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 matter, cannot legally assume jurisdiction over a matter which the Constitution or the legislature has not expressly conferred on it. The original jurisdiction of this court is as provided in section 232 of the 1999 Constitution and this court does not enjoy concurrent original jurisdiction with the Court of Appeal in respect of the matter under ‘reference’, I hold the view that the Supreme Court has no jurisdiction to entertain the ‘reference’ as made in the instant case.
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. I agree with the reasoning and conclusion of my learned brother Kutigi, CJN in the lead ruling that the ‘reference’ be struck out and the matter remitted to the Court of Appeal for expeditious hearing and determination and order accordingly.
I abide by the order as to costs contained in the said lead ruling.P. O. ADEREMI, J.S.C: I have had the privilege of reading, in advance, the ruling just delivered by the Acting Chief Justice of Nigeria, Hon. Justice Idris Legbo Kutigi. I agree with the reasoning and the conclusion reached therein. I wish to add a few words of my own.
When this matter came before us this morning, this court suo moto, raised the issue whether it can entertain a wholesale reference of the suit filed before the Court of Appeal pursuant to section 295 of the 1999 Constitution for determination by us. After listening to counsel on all sides, we are not in doubt that they (the counsel) are substantially ad idem that the reference is not proper in law. However, Chief Wole Olanipekun, Senior Counsel, leading others for the plaintiff was quick to add that if this court was minded to send the case back to the Court of Appeal, it should set a guideline for the court below that will make for a quick determination of this matter by that court for reason of time not being on their side.
The law is sacrosanct that where any question as to the interpretation or application of the provisions of the Constitution arises in any proceedings in any court of law and in any part of Nigeria, (the Supreme Court being an exception); the Court of Appeal or any Federal or State High Court seised of matter and properly convinced that the question so arising involves a substantial question of law, may and shall, if any of the parties to the proceedings so requests, refer the question to the next court of superior jurisdiction to it. In the instant case, the purported reference is from the court below to this court – Supreme Court. Section 295(3) of the 1999 Constitution confers the power on the Court of Appeal to make such a reference to the Supreme Court.
I have stated supra i.e. that the court (Court of Appeal) has a discretion to make the reference suo moto and if the request is from the counsel, the Court of Appeal shall accede to that request. However, certain conditionalites are sine qua non to making the reference. To ground a reference properly known to law, the following conditions must co-exist:
(1) The question to be referred must be as to the interpretation or application 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 issue before the court making the reference.
(3) Of course, the matter for reference, must involve a substantial question of law, while the court making that reference must have decided the substantiality of the question which is the 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.
These conditionalities, as I have said, must co-exist and they must be in place before any reference properly known to law can be made. See Federal Republic of Nig. & Anor. v. Lord Chief Udensi Ifegwu (2001) 13 NWLR (Pt. 729) 103 and (2003) 15 NWLR (Pt. 842) 113. I have gone through the records forwarded to this court; there were no proceedings before the court below upon which any question purportedly forwarded to this court can be predicated. That being so, I do not hesitate in saying that no reference known to law, has been made to this court and we cannot assume jurisdiction on this matter as it stands.
The matter must therefore be remitted to the Court of Appeal for adjudication. I so order in line with the order contained in the lead ruling.
I make no order as to cost while I strike out the reference.C. M. CHUKWUMA-ENEH, J.S.C: I have read the lead ruling in this matter and I agree and abide by the reasoning and conclusions that the matter be remitted to the court below to be handled expeditiously. I have all the same, to emphasise a crucial point that the provisions of section 295 are clear and unambiguous. For a reference contemplated under section 295 to conform with the said provisions the questions of law referred to the court must involve substantial questions of law and certainly not issues for determination as have been raised by the parties in this matter before the lower court. It is also clear from the provisions that a lower court as the instant one
may refer substantial questions of law to the court suo moto under certain conditions; it however, must make the reference where any of the parties in the proceedings has so requested. The provisions of S. 295 are in pari materia with the provisions of section 259 of the 1979 Constitution and other similar provisions of earlier Constitutions and there are a plethora of cases expounding the same; see Federal Republic of Nigeria & Anor v. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113.
The instant matter has not however complied with the conditions precedent for a proper referral of the matter to the court. If I may highlight one or two of the flaws evident in this regard. In this matter, the plaintiff has commenced the action by an originating summons with an affidavit in support and two further affidavits. There are filed a counter affidavit and a counter-claim by the 1st defendant; the 2nd defendant as well as the 3rd and 5th defendants jointly) and the 6th defendant have equally filed their respective counter affidavits. In the light of these scenarios the facts of this matter have been put in serious issue. Thus making findings of fact a sine qua non for a proper reference to this court to be meaningful. There is no such. findings of fact so that there is no way forward in dealing with the matter even if the court had wished to proceed with the matter. This is even more so as the court cannot assume original jurisdiction of the lower court in this matter and so cannot make any findings of fact in the matter.
I must also point out that by this reference the lower court has more or less transferred the entire matter to this court to determine and thus, with respect, has abdicated its responsibility under the provisions of section 239(1)(b) & (c) of the 1999 Constitution. There can be no gain saying that the instant referral is improper and lacking in due process.
For the foregoing and much more in the lead ruling, I agree that the matter be remitted to the lower court for it to be proceeded with expeditiously.
Reference struck Out, matter remitted to the Court of Appeal, Abuja.
Appearances
Chief Wole Olanipekun, SAN (with him, Rickey Tarfa, SAN; Kola Awodehin, SAN; Chief Adeniyi Akintola, SAN; Prof. Taiwo Osipitan, SAN; Chief Emeka Ngige, SAN; Adetunji
Oyeyipo, SAN; Omar Shiltien, Esq.; H. A. Nganjiwa, Esq.; O. O. Soyebo; J. O. Odubela, Esq.; O. Jolaawo; Rotimi Oguneso; A. Malgwi, Esq.; A. A. Malik, Esq.; Joshua Atobo, Esq.; P. M.
Ayan)For Appellant
AND
Duro Adeyele, SAN (with him, Mr. Adebayo Adenipekun, SAN; Mr. B. J. Akomolafe, SAN; Remi Awe-Osho [Mrs.]; Dotun Sowemimo; Yemisi Balogun [Mrs.]; Akinyemi Aremu; Akin
Akintan; Mary Ekpenre [Miss]; Kehinde Ogunwuniju; Obir.na Durunguma; Bunmi Naiyeju; Isaiah Opaoje; Joke Akinfenwa [Mrs.] and Abubakar Aliyu)
P. I. N. Ikwueto, SAN (with him, Chief Bolaji Ayorinde, SAN; Judith Idigo; Isaiah Bozimo; Edward Osammor and Abubakar Aliyu) -for the 2nd Defendant
Peter Eze (with him, Anthony Enumah)
1. K. Gadzama, SAN (with him, Chief Bolaji AYOlinde, SAN; R. O. Yusuf; 1. Abana, O. U. Ozumba, Esq.; Chuka Ugwu; Kehinde Ojumuju; Joke Akintenwa; Eyitayo Fatogun, Esq.; Lynda
Adzuanaga [Miss]; Seyi Adalumo [Mrs.])For Respondent
