FASAKIN FOODS NIG. LTD V. MARTINS BABATUNDE SHOSANYA
(2006) LCN/3484(SC)
In the Supreme Court of Nigeria
Friday, April 28, 2006
Case Number: SC. 312/2001
JUSTICES:
SALIHU MODIBBO ALFA BELGORE, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE, SUPREME COURT
NIKI TOBI, JUSTICE, SUPREME COURT
ALOMA MARYAM MUKHTAR JUSTICE, SUPREME COURT
MAHMUD MOHAMMED JUSTICE, SUPREME COURT
WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
FASAKIN FOODS NIG. LTD
AND
RESPONDENTS
MARTINS BABATUNDE SHOSANYA
RATIO
COURT – High Court: Whether the High Court can tranfer cases to Federal High Court
“Unless and until there is a clear enabling provision in the Lagos State High Court Law or that State High Court (Civil Procedure) Rules empowering the State High Court to exercise the powers vested in it under section 22(3) of the Federal High Court Act not being a law made by the House of Assembly of the State pursuant to section 239 of the 1979 Constitution, the trial court has no power to transfer the appellant’s action wrongly filed in that court to the Federal High Court, Lagos Judicial Division.” Per MOHAMMED, J.S.C
COURT – JURISDICTION: ORDER TO BE MADE WHEN A COURT LACKS JURISDICTION
“If the trial court acted under the said invalid Act, it was not right, having regard to the said provisions of Section 233 of the 1979 Constitution. This is because, it has long been settled in a number of decided cases, that where a court holds that it has no jurisdiction, the proper order to make, is to strike out the suit or proceeding. It does not transfer and cannot transfer.” Per OGBUAGU, J.S.C.
INTERPRETATION OF STATUTE – THE BASIC RULES OF INTERPRETATION OF STATUTES
“It is now firmly established, that in the principle of construction or interpretation of a statute or Constitution, the ordinary meaning of words, apply prima facie.” Per OGBUAGU, J.S.C.
I.F. OGBUAGU, JSC Delivering the Judgement of the Court This appeal from the facts, raises, an interesting constitutional question or point. The appellant in the High Court of Lagos State, Ikeja Judicial Division, in Suit No. ID/768/96 (not 786) as appears in the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”), claimed against the Respondent, several monetary reliefs. The action arises from alleged wrongful activities of the Respondent during or from 18th March, 1991 to 22nd February, 1994 when he was a receiver/manager of the Appellant. The Appellant, filed and served a Statement of Claim on the Respondent. In reaction to the same, the Respondent filed a Notice of Preliminary Objection on 14th April, 1997. The grounds of the objections are: (i) “That this Honourable Court lacks the jurisdiction to hear and determine this suit; and (ii) That the filing of this suit in this Honourable Court constitutes an abuse of Court process”. After hearing arguments from both learned counsel for the parties, the learned trial Judge – Holloway, J. in his ruling of 4th June, 1999, held that the said suit, was not an abuse of the process of that court. That most of the complaints, involve the operation of the Company & Allied Matters Decree which are within the jurisdiction of the Federal High Court. He therefore, pursuant to Section 22 (3) of the Federal High Court Act, transferred the suit to the Federal High Court, Lagos Division. He stayed action or the proceedings pursuant to Section 22(4) of the said Act. The Respondent being dissatisfied with the said Ruling, appealed to the court below, which in its said Judgment delivered on 11th June, 2001, allowed the appeal and set aside the said orders of the trial court. In their place, it made an order striking out the said suit. It is against the said decision, that the Appellant, has brought the instant appeal. Without their particulars, the grounds, read as follows: “(i) The Court of Appeal erred in law in deciding that Section 22(3) Cap 134 Laws of the Federation of Nigeria 1990 is inapplicable in the Lagos State High Court because the Lagos State House of Assembly had not adopted the provision. (ii) The court below erred in law in holding or assuming that if it reached the conclusion in its judgment that Section 22(3) is not inconsistent with the 1979 Constitution, it must hold that the appeal is incompetent pursuant to Section 22(4) Cap. 134 LFN 1990 which made an order of transfer pursuant to Section 22 (3) of Cap.134 an unappealable decision”. The Appellant has formulated one issue for determination, namely, “Whether the provision of Section 22(3) of the Federal High Court Act is inconsistent with Section 239 of the 1979 Constitution”. On the part of the Respondent, he also formulated one issue for determination, namely, PAGE| 3 “Whether section 274 of the Constitution of the Federal Republic of Nigeria, 1979 can be applied to deem a section of an existing statute to be a law made by the House of Assembly of a State while the statute itself is deemed an Act made by the National Assembly and if so, whether Section 22(3) of Federal High Court Act, Cap. 134 LFN 1990 is an appropriate Section to which it should be so applied”. Briefs of Argument have been filed and exchanged by the parties. On 31st January, 2006, when this appeal came up for hearing, the learned counsel for the Appellant – O.O. Delano, Esq., adopted their brief, sought and was granted leave of the Court to amend paragraph 2 on page 5 of the said brief by adding from the word “some”, the words “so long as they do not conflict with the provisions of the Constitution”. Thereafter, both learned counsel for the parties, made their respective oral submissions in amplification of their said respective briefs. Most of the oral submissions were really contained in the respective briefs, the difference as conceded by Dr. Ajibade, being that they are not in the same language. In spite of the lengthy submissions/arguments both in the briefs and orally, in my respectful view, the crucial or pertinent issue to be considered and determined, is whether or not, the trial court, had the jurisdiction to transfer the said suit to the Federal High Court for hearing and determination. It is not in dispute and the parties, are agreed to the fact that the learned trial Judge held that his court, has no jurisdiction to entertain the case. At page 26 of the records, the following, inter alia, appear: “……It would appear from the 19 complaints contained on the Writ of Summons that one or 2 of Grey areas can come before this Court for determination. But by far most belong to the Federal High Court who are the origin of the relationship as between the parties and who probably have custody of some needed facts (sic). Most of the complaints really involve operation of the Company and Allied Matters Decree which belongs to the Federal High Court.. ………………. Since this Court has found that the case is more appropriate in the Federal High Court, the Section 22(3) Federal High Court Act has provided what could be done in the circumstance”. [the underlining mine] I note that the action leading to this instant appeal, was instituted on 6th March, 1996 while the Statement of Claim, was filed on 4th March, 1997. The learned trial Judge, found as a fact and held that most of the claims which he called “complaints”, involve the operation of the Company & Allied Matters Act which are within the jurisdiction of the Federal High Court. Section 22(3) of the Federal High Court, Act, (hereinafter called “the Act”) appears in Cap. 134, Laws of the Federation of Nigeria, 1990. So, it is the 1979 Constitution, that governs the subject-matter of the dispute between the parties. The relevant sub-sections, of Section 22 of the Act, provide as follows: “(3) Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law shall by virtue of this subsection be deemed also to include power to make rules of court for the purposes of this subsection”. PAGE| 4 [the underlining mine] “(4)Every order of transfer made pursuant to subsection (2) or (3) of this section shall operate as a stay of proceeding before the court before which such proceedings are brought or instituted and shall not be subject to appeal”. [the underlining mine] By the said Ruling of the High Court, it is my humble but firm view (and without prejudice to my eventual conclusion in this Judgment) that the learned Judge, was “apparently” right in simply com-plying with the clear and unambiguous provisions of the said Act. It is now firmly established, that in the principle of construction or interpretation of a Statute or Constitution, the ordinary meaning of words, apply prima facie – See Omoijahe V. Umoru & Ors. (1999) 5 SCNJ. 280 and Ibrahim V. Ojomo & 3 Ors. (2004) 4 NWLR (Pt. 862) 89.; (2004) 1 SCNJ. 309; (2004)1 S.C. (Pt.II) 136 at 147, (2004) 1 SCM, 103. That it is the duty of the court, to interpret words used in a Statute or Constitution. That ordinary meaning of the words used, should be given its effect. See City Engineering (Nig.) Ltd, V. Nigerian Airport Authority (1999) 9 SCNJ. 263: (1999) 6 S.C. (Pt. II) 41 (5). 47 Even where such interpretation, causes inconvenience to the parties – See recently, Hon. Justice E.O. Araka V. Hon. Justice Don Egbue (2003) 7 SCNJ. 114, (2003) 10 SCM, 178; or even if it gives an unreasonable or unfair result – See Victor Ndoma-Egba V. Chukwuogor & 3 Ors. (2004) 6 NWLR (Pt. 869) 382; (2004) 2 SCNJ. 117, (2004) 3 SCM, 3 SCM, 129; (2004) 2 S.C. (Pt. 1)107 at 115. citing few other cases therein and NDIC V. Okem Enterprises Ltd. & Anor. (2004) 10 NWLR (Pt. 880) 107 at 196; (2004) 4 SCNJ. 244; (2004) 4 S.C. (Pt. II) 77 at 125, 127, (2004) 4 SCM, 109. Now, the court below, per Oguntade, JCA (as he then was), had earlier stated as follows: “From the ruling of the lower court, it is manifest that it acted under Section 22(3) of Cap. 134 above in transferring the plaintiffs’ suit from the Lagos State High Court to the Federal High Court. If I reach the conclusion in this judgment that Section 22(3) is not inconsistent with the 1979 Constitution, I must hold that this appeal is incom-petent pursuant to Section 22(4) Cap. 134 LFN. 1990 above which makes an order of transfer pursuant to Section 22(3) of Cap. 134 an unappealable decision”. [the underlining mine] I cannot fault this finding as I agree with the same. This should have been the end of this appeal, but, if I must, let me for purposes of completeness and clarity, go a little bit further. This is because, it seems to me, (as was canvassed by the learned counsel for the Appellant in the court below) as in this Court, that the argument or contention of the learned counsel, is not just that Section 22(3) of the Act, is inconsistent with the said Constitution, but also, that the said Section, to the extent that it makes a provision concerning the powers of a State High Court, is incompetent, since according to him, the National Assembly, did not in any case, have legislative authority or power, to make laws for the High Court of a State. PAGE| 5 I will therefore, for the avoidance of any doubt, reproduce the provisions of Section 233 of the 1979 Constitution whereby, the National Assembly, is vested with the powers to make laws with respect to the Federal High Court. It provides as follows: “233. The National Assembly may by law make provisions with respect to the practice and procedure of the Federal High Court (inclu-ding the service and execution of all civil and criminal processes of the court), and until other provisions are made by the National Assembly, the jurisdiction hereby conferred upon the Federal High Court shall be exercised in accordance with the practice and procedure for the time being in force in relation to the High Court of a State or to any other Court with like jurisdiction”. [the underlining mine] Let me also reproduce, the provision of Section 239 of the said Constitution in respect of the legislative authority to make laws for the High Court of a State which is vested in a State House of Assembly. “239. The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any Law in accordance with the practice and procedure (including the service and execution of all civil and criminal process of the Court) from time to time prescribed by the House of Assembly of the State”. It could be seen from the above provisions of the said two Sections, that while only the National Assembly, could make laws with respect to the practice and procedure in the Federal High Court, the power to make similar laws for the High Court of a State, is vested in the House of Assembly of a State. It need be stressed by me, that the Federal High Court Act, 1976, was an existing law when the 1979 Constitution came into force. Now, in relation with an existing law, Section 274(1) of the said Constitution provides that, “Subject to the provisions of this Constitution an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be: (a)xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Nothing in this Constitution shall be construed as affecting the power of a Court of Law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say – PAGE| 6 [a] any other existing law [b] a Law of a House of Assembly [c] an Act of the National Assembly, or [d] any provision of this Constitution”. [the underlining mine] The court below, at pages 98, and 99 of the Records, rightly, in my respectful view, stated as follows: “There can be no doubt that Section 22(3) of the Federal High Court Act, Cap. 134, Laws of the Federation, 1990 to the extent that it sets out what a State High Court should do if the State High Court is of the view that a cause or matter should have been initiated in the Federal High Court and not in a State High Court, is clearly not inconformity with Section 239 of the 1979 Constitution which vests such legislative authority on the State House of Assembly. The argument of the Respondent that the Federal High Court Act Cap. 134 LFN being an existing law could be modified to bring it in line with the 1979 (or 1999 Constitution) overlooks the fact that what is in issue here is not textual inconsistency of the said Section 22(3) Cap. 134, 1990 with any other law or Constitution but rather that the National Assembly could not in any case legislate over the practice and procedure in a State High Court. At the time the 1979 Constitution came into force, Lagos State has its State High Court law which was Cap. 52, 1973 Laws of Lagos State”. [the underlining mine] Section 12 of the said High Court Law, was referred to and reproduced, It thus means, that under the said High Court of Lagos State (Civil Procedure) Rules, 1972, there is no rule of procedure, which enables that court, to transfer a cause or matter, to the Federal High Court. That court, cannot even in the circumstance, resort to or fall back to the practice and procedure in England as there appears to be no such provision of transfer from a High Court to the Federal High Court. So, as it stood or stands, the Lagos State House of Assembly, has not made any provision for the transfer of a cause or matter to the Federal High Court. The practice and procedure of a State High Court, is regulated by Section 239 of the 1979 Constitution. See Aluminium etc. V. N.P.A. (infra). I am aware that while the Federal High Court can transfer a cause or matter to a State High Court, by virtue of Section 22(2) of the Act. See Aluminum Manufacturing Co. (Nig.) Ltd V. N.P.A. (1987) 1 NSCC Vol. 18 224 at 234: (1987)1 nwlr (Pt. 51) 475: (1987) 1 SCNJ. 94. but there is no such provision applicable at least, in the Lagos State High Court Rules. However, let me now deal with the Constitutionality of Section 22(3) & (4) of the Act vis-à-vis a State High Court. The provision of Section 233 of the 1979 Constitution, is clear and unambiguous. PAGE| 7 Section 22(3) & (4) of the Act in effect, is legislating for the State High Courts in an Act or provision, it has no power to do or make. The Constitution, as has been well settled, is Supreme; the Organic or fundamental law and it is the grundnorm of Nigeria. See P.N. Emerah & Sons (Nig.) Ltd. & Anor. V. The Attorney-General of Plateau State & Ors. (1990) 4 NWLR (Pt. 147) 788 @ 803 C.A: The Attorney-General of Lagos State & The Hon. Justice Dosunmu (1989) 6 SCNJ. (Pt. II) 134 at 166: (1989) 3 NWLR 552: Kalu V. Odili (1992) 5 NWLR (Pt. 240) 130 at 189: (1992) 6 SCNJ. 76: Chief Imonikhe & Anor. V. Attorney-General of Bendel State & 3 Ors, (1992) 7 SCNJ. (Pt. 1) 197; Rossek & 2 Ors, V. AC.B. Ltd. & 2 ore. (1993) 8 NWLR (Pt. 312) 382; (1993) 10 SCNJ. 20 at 45 and recently, Alhaji Nuhu V. Alhaji Ogele (2003) 18 NWLR (Pt. 852) 251; (2003) 12 SCNJ. 158 at 173, (2003) 12 SCM, 209 and many others. This Court, has, therefore, the jurisdiction, to declare any other law or Act inconsistent with the provisions of the Constitution, invalid and therefore, null and void. See Uwaifo V. Attorney-General of Bendel State (1982) 7 S.C. 124 – per Idigbe, JSC; Ikine v.Edjerode (2001) 18 NWLR (Pt. 745) 466; (2001) 5 SCNJ. 144, (2001) 1 SCM, 124 – per Ejiwunmi, JSC and recently, Attorney-General of Ogun State & 4 Ors, V. Attorney-General of the Federation (2002) 12 SCNJ. 191 at 207 (2002) 14 SCM 1 – per Onu, JSC. This is because, the Constitution, has also been described as the fons et arigo. This is why, it has made provisions for the procedural law applicable in the various courts established by it in Sections 216, 227, 233, 239, 244 and 249. This is also why, being the foundation of all laws, its provisions, must be read in their clear and ordinary meaning. Any Act which infringes or runs contrary to those organic principles or systems or provisions, must be declared to be inconsistent. Although the courts are vested with the jurisdiction to so declare, it has no jurisdiction to pronounce on the validity of the making of such Edict, or Act. See Labiyi & Ors. V. Alhaji Anretiola (1992) 8 NWLR (Pt. 258) 139 at 162: (1992) 10 SCNJ. 1 at 12 and Nuhu V. Ogele (supra). If the trial court acted under the said invalid Act, it was not right, having regard to the said provisions of Section 233 of the 1979 Constitution. This is because, it has long been settled in a number of decided cases, that where a court holds that it has no jurisdiction, the proper order to make, is to strike out the suit or proceeding. It does not transfer and cannot transfer. See Okoye & 7 Ors. V. Nigerian Construction & Furniture Co. Ltd. & 4 ors. (1991) 7 SCNJ (Pt II) 365 at 388 and recently, NEPA V. Mr. Edegbero & 15 Ors. (2002) 12 SCNJ 173 at 186; (2002) 13 SCM, 78; Arjay Ltd. & 2 ors. V. Airline Management Support Ltd. (2003) 7 NWLR (PT. 820) 577 at 610: (2003) 2 SCNJ. 148 at 173, (2003) 5 SCM, 17 – per Onu, JSC, and Chief Lakanmi V. Adene & 3 Ors. (2003) 4 SCNJ. 348 at 355, (2003) 7 SCM, 103 – per Kalgo, JSC, to mention just but a few. So, pursuant to Section 239 of the 1979 Constitution, the trial court’s jurisdiction, was limited to just striking out the suit in the circumstances. I so hold I therefore, render my answer to the said lone issue of the Appellant, in the Affirmative. So, whichever way one looks at this appeal, it is bound to collapse and it has failed. It is accordingly dismissed, I hereby affirm the said decision of the court below. Costs follow the event. The Respondent is awarded N10,000.00 (ten thousand naira) costs payable to him by the Appellant. S.M.A. BELGORE, JSC: I agree that this appeal has no merit and I adopt the reasoning and conclusion of my learned brother, Ogbuagu, JSC as mine in dismissing it. I make the same orders as to costs. PAGE| 8 U. A. KALGO, JSC: I have had the opportunity of reading in advance the judgment of my learned brother Ogbuagu, JSC just delivered. I entirely agree with the reasoning and conclusions reached therein. The appeal lacks merit and ought to be dismissed. My learned brother Ogbuagu, JSC has painstakingly considered the sole issue for determination formulated by the parties in their respective briefs, and has fully and clearly in my view dealt with all the questions arising there from. I adopt, as mine all the reasoning and conclusions reached in the leading judgment and accordingly find no merit in the appeal. I dismiss it and affirm the decision of the court of appeal. I award N10,000.00 costs in favour of the respondent. NIKI TOBI, JSC: This appeal raises a constitutional issue and it is whether a High Court of a State can transfer a suit to the Federal High Court on ground that it lacks the jurisdiction to hear it. The appellant as plaintiff commenced an action at the Lagos High Court, Ikeja, Division. The reliefs are many. They are nineteen; quite a mouthful. Following a preliminary objection by the defendant/applicant, challenging the jurisdiction of the High Court, Lagos State Ikeja Judicial Division, the learned trial Judge, Holloway, J. ordered that it be transferred to the Federal High Court, Lagos. In his ruling, the Judge said at page 26 of the Record: “Since this court has found that the case is more appropriate in the Federal High Court, the section 22(3) Federal High Court Act has provided what could be done in the circumstance. Order is therefore made that this case is transferred to the Federal High Court in the Lagos Judicial Division of the Court.” The respondent was not satisfied. It filed an appeal. The Court of Appeal upheld the appeal. Oguntade, JCA (as he then was) said at pages 99 and 100 of the Record: “In the light of what I have said above, the conclusion to be arrived at is that section 22(3) of the Federal High Court Act, Cap. 134, Laws of the Federation 1990 which vests power in a State High Court to transfer a cause or matter to the Federal High Court is inconsistent with section 233 of the 1979 Constitution. To the extent of such inconsistency, it must be prono-unced invalid. I so pronounce it. Accordingly, this appeal succeeds. The orders made by the lower court on 4/6/99 transferring this suit to the Federal High Court; and staying proceedings at the lower court pursuant to section 22(3) and 22(4) of the Federal High Court Act, Cap 134 LFN, 1990 are set aside. In their place, I make an order striking out the suit brought by the plaintiff/respondent.” Aggrieved by the judgment of the Court of Appeal, the appellant filed an appeal in this court. Counsel for the appellant formulated three issues for determi-nation. Counsel for the respondent formulated one issue for determination. Learned counsel for the appellant submitted that the Federal High Court Act and in particular section 22(2) and (3) qualifies as an existing law prior to and after the enactment of the 1979 Constitution. Relating the provisions of the Federal High Court Act to section 6(6)(d) of the 1979 Constitution, learned counsel submitted that the section is a complete bar to any enquiry into the competence of the Federal Military Government to promulgate any Decree in the years from 1966 to 30th September, 1979 inclusive. PAGE| 9 He also examined the severability of statutory provisions, and whether section 22(3) of the Federal High Court Act is inconsistent with the Constitution. He cited the following cases in his brief: AG Imo State V. AG Rivers State (1983) NSCC 370 at 380; AG Lagos State V. Dosunmu (1989) 3 NWLR P.552; Aluminum Manufacturing Co. V. NPA (1987) 1 NSCC 224 at 239; The Queen V. Owoh (1962) 1 All NLR 659 at 661; Wakefield and District Light V. Rys Wakefield Corpn. (1906) 2 KB 140; Omisade V. Akande (1987) 1 NSCC 286 and Awoleye V. BOCE (1990) 2 NWLR 490. He urged the court to allow the appeal. Learned counsel for the respondent attacked the appellant’s brief head-on. He took each point made by the appellant’s counsel and raised arguments to dislodge the brief. He took the cases cited in the appellant’s brief and distinguished the facts of the cases, where necessary, from the facts of this case. He urged the court to dismiss the appeal by holding that the provisions of section 274 of the 1979 Constitution cannot be applied to deem a section of an existing statute to be a law made by the House of Assembly of a State while the statute itself is deemed an Act made by the National Assembly. The Constitution of the Federal Republic of Nigeria, 1979, like its successor, the 1999 Constitution, provided separately for the legislative power of the Federal and State Governments. Thus, section 4(1) of the 1979 Constitution vested legislative powers on the National Assembly, while section 4(6) of the Constitution vested legislative power on the House of Assembly of a State. This arrangement is consistent with federalism and a federal system of government. During the military regime, the power to promulgate Decrees was vested in the Federal Military Govern-ment, while the power to promulgate Edicts was vested in the Military Governments of the States. Taking a queue from the above, the Federal Revenue Court Decree of 1973 which metamorphosed to an Act, was promulgated by the Federal Military Government. As a matter of law and fact, the Decree was signed by General Yakubu Gowon, who was the Head of the Military Government at the material time. While I agree with learned counsel for the appellant that both the Revenue Court Decree, 1973 and the Federal High Court Act, Cap. 134, Laws of the Federation, 1990 are existing laws within the meaning of section 274(4)(b) of the 1979 Constitution, I am unable to agree with his submission that the Federal High Court Act, ipso facto is deemed to be a law passed by the House of Assembly of a State. Construing the provision of section 274(1) of the 1979 Constitution, learned counsel submitted that on a plain and ordinary construction of the provisions, an existing law could either be deemed to be a State law or a Federal law. The deciding factor is the subject matter to which the existing law relates. He did not stop there. He submitted as follows: “If it is in respect of any matter on which the National Assembly is empowered to make law, i.e. a matter on the exclusive or concurrent list, then the existing law will be deemed to be a law made by the National Assembly. On the other hand, if it is in respect of any matter on which a House of Assembly is empowered to make laws, i.e. a matter on the residual list, then the existing law shall be deemed to be made by the State House of Assembly.” PAGE| 10 The above interpretation is to some extent correct as it relates to section 274(1)(a) and (b). It is not however entirely correct. Learned counsel in an effort to justify his statement quoted Professor Nwabueze from his book titled Federalism in Nigeria under the Presidential Constitution: “The use of and instead of or needs to be emphasised. Its implication is necessarily that an existing law may be either a federal law or state law where its subject matter lies within the exclusive competence of the National Assembly or a State Assembly, or it may be both a federal and state law where it is within the concurrent authority of both assemblies. Its existence as a federal/or state law is altogether regardless of the legislature that originally enacted it, whether the federal parliament, a regional House of Assembly (before 1966), the Federal Military Government or a State Military Governor…” The above statement is correct and valid. The statement made by learned counsel purportedly supporting what Professor Nwabueze said is not exactly what the learned professor said. Counsel loaded the legislative powers of the Federal Government with matters both in the exclusive and concurrent lists. But that is not borne out by the arrangement in the legislative lists in the 1979 Constitution. That list in Part II of the Second Schedule to the Constitution made a distinction in respect of extent of federal and state legislative powers. And that is where counsel got it all wrong. It is strange to me that a law enacted by the National Assembly under the legislative powers vested in it in section 4(1) can be deemed to be a law enacted by the House of Assembly of a State under the legislative powers vested in it in section 4(5) of the 1979 Constitution. That cannot be the meaning of section 274(1)(a) and (b) of the 1979 Constitution. Such a construction is a burden which the subsection cannot carry. The word “deemed” in section 274(1) before sub-paragraphs (a) and (b) clearly relates to the sub-paragraphs in their distinct meanings of an Act of the National Assembly and a law of a State House of Assembly. In some desperate effort to convince the court to go along with his argument, learned counsel first cited The Queen V. Owoh. In that case the Supreme Court interpreted the provisions of the Nigerian (Constitution) Order-in-Council, 1954 and section 57(3)(b)(i) as amended by the 1957 Order-in-Council. While I agree with learned counsel that section 57(3)(b)(i) is the precursor of section 274(1) of the 1979 Constitution, the provisions are not the same. Therefore Owoh cannot be valid authority in this case. Section 57(3)(b)(i) relied upon by learned counsel provides as follows: “(b) an existing law shall, so far as it relates to any matter other than a matter included in the Exclusive Legislative List, have effect: (i) in relation to a Region, as if it was a law enacted by the Legislature of that Region.” Where is the above provision in section 274 of the 1979 Constitution to justify the position taken by learned counsel? I do not see any and there is none. Where a party relies on the provisions of a previous Constitution for purposes of interpreting the provisions of a more current one, the provisions of the previous Constitution must be the same as those of the current one. PAGE| 11 The above apart, in Owoh, the Federal Supreme Court, dealing with the Criminal Code, said: “The sections of the Criminal Code, creating the offences of conspiracy to steal, conspiracy to defraud, stealing, forgery and altering are not laws with respect to any matter in the Exclusive Legislative List… it follows from section 3(b) of the Nigerian (Constitution) Order in Council … that they have effect in Eastern Nigeria as if they had been enacted as Regional Laws in pursuance of the 1960 Order.” The above is a correct interpretation of the constitutional provision at the material time. Since there is no such similar provision, counsel is not on a firm ground to make this court tow the decision of Owoh. The above apart, the enactment of the Federal High Court Act is within the legislative competence of the National Assembly. In the circumstances, Owoh does not apply and I so hold. Learned counsel cited one English case and one Nigerian case and laboured vigorously and extensively to dichoto-mise between the words, enactment and Act. I do not intend to take the cases because I see no relevance in them in relation to the live issue before us. And when I say this, I do not forget the provision of section 22(3) of the Federal High Court Act. I therefore skip it. And that takes me to the issue whether section 22(3) of the Federal High Court Act is inconsistent with the provisions of sections 233 and 239 of the 1979 Constitution. I should take the liberty to first reproduce the sections for ease of reference. Section 22(3) of the Federal High Court Act provides as follows: “Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the court and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include power to make rules of court for the purpose of this subsection.” Section 233 of the 1979 Constitution provides: “The National Assembly may by law make provisions with respect to the practice and procedure of the Federal High Court (including the service and execution of all civil and criminal process
COUNSELS
O.O. DELANO Esq. for the appellant DR. B.A.M. AJIBADE for the respondent
