RULE OF LAW ALERT: Does Nigeria’s Supreme Court Have Original Jurisdiction to Entertain the Case Filed by the Senate Over CJN Onoghen (A Legal Opinion by Sylvester Udemezue)

BACKGROUND

Supposedly acting in obedience of an Ex Parte Order said to have
been issued by Nigeria’s Code of Conduct Tribunal (CCT), directing
the Federal Government to suspend the Chief Justice of Nigeria who
is currently standing trial at the CCT on allegations bothering on
late declaration and non-declaration of his assets and alleged
breach of the Code of Conduct for Public Officers, the President of
the Federal Republic of Nigeria had on 24 January 2019 suspended
Hon Justice Walter Onoghen, CJN, and appointed Hon Justice Tanko
Mohammed, JSC, as Ag CJN, pending the determination for the case
against CJN Justice Onoghen. Angered by the development, the Senate
of the Federal Republic of Nigeria on Monday, 28 January 2019,
instituted an action at the Supreme Court of Nigeria “to seek
judicial interpretation to Onnoghen’s suspension by President
Muhammadu Buhari.” In the suit marked Suit No; SC/76/2019, the
Senate prayed for the following orders of the Supreme Court:

• “A declaration that the suspension, by the President, of
  Hon. Justice Walter Samuel Nkanu Onnoghen from his office as Chief
  Justice of Nigeria on or about January 25, 2019, without an address
  calling for the removal, supported by two-thirds majority of the
  Senate is in violation of section 292(1)(a)(i) of the constitution
  and therefore null and void.
• “An order rescinding or setting aside the suspension of
  Hon. Justice Walter Samuel Nkanu Onnoghen from his office as the
  Chief Justice of Nigeria and restoring him to the said office.
  And
• “An order restraining the defendants from continuing or
  repeating the violation of the Constitution of the Federal Republic
  of Nigeria and disregarding the powers of the Senate at the Federal
  Republic of Nigeria.”

(see
https://punchng.com/senate-asks-scourt-to-reinstate-onnoghen-says-buhari-cant-remove-cjn/)

LEGAL PROVISIONS ON REMOVAL/SUSPENSION THE CHIEF JUSTICE
OF NIGERIA (CJN):

Section 292 (1) (a) and (b) of the Constitution of the Federal
Republic of Nigeria, 1999 provides as follows:

“A judicial officer shall not be removed from his office or
appointment before his age of retirement except in the following
circumstances –

• in the case of Chief Justice of Nigeria, President of the Court
  of Appeal, Chief Judge of the Federal High Court, Chief Judge of
  the High Court of the Federal Capital Territory, Abuja, Grand Kadi
  of the Sharia Court of Appeal of the Federal Capital Territory,
  Abuja and President, Customary Court of Appeal of the Federal
  Capital Territory, Abuja, by the President acting on an address
  supported by two-thirds majority of the Senate, Praying that he be
  so removed for his inability to discharge the functions of his
  office or appointment (whether arising from infirmity of mind or of
  body) or for misconduct or contravention of the Code of Conduct;
   and
• in any case, other than those to which paragraph (a) of this
  subsection applies, by the President or, as the case may be, the
  Governor acting on the recommendation of the National Judicial
  Council that the judicial officer be so removed for his inability
  to discharge the functions of his office or appointment (whether
  arising from infirmity of mind or of body) or for misconduct or
  contravention of the Code of Conduct.”

ORIGINAL JURISDICTION OF THE SUPREME COURT:

By virtue of section 233 of the Constitution of the
Federal Republic of Nigeria (CFRN), 1999, as amended, the
Supreme Court (which is the final Court of Appeal in Nigeria) has
exclusive jurisdiction to hear and determine all appeals from the
Nigerian Court of Appeal. But there are instances in which cases
may be filed direct at the Supreme Court without going through any
lower court. The Supreme Court is said to be exercising its
Original Jurisdiction when a case is
filed direct at the Supreme Court.  The instances in which the
Supreme Court is entitled to exercise its original jurisdiction are
provided for in section 232 of the CFRN, 1999, section 20 of the
Supreme Court Act, Cap S15, LFN 2004 and section 3
of the Supreme Court (Additional Original Jurisdiction)
Act Cap. S16 LFN 2004. A community reading of the cited
statutory provisions shows that the Supreme Court can have or
exercise its original jurisdiction ONLY in the
following instances:

• A dispute between a State and the Federation;
• A dispute between one State in Nigeria and another State or
  among states;
• A dispute between the National Assembly of the Federal Republic
  of Nigeria and a State in Nigeria;
• A dispute between the National Assembly of the Federal Republic
  of Nigeria and the President of the Federal Republic of
  Nigeria;
• A dispute between the National Assembly of the Federal Republic
  of Nigeria and the House of Assembly of a State in Nigeria.

This list is exhaustive. In other words, there are no other
instances in which the Supreme Court may exercise its original
jurisdiction. Section 232 (1) of the CFRN, (as amended) provides as
follows:

“The Supreme Court shall, to the exclusion of any other
court, have original jurisdiction in any dispute between
the Federation and a state or between states if and in so
far as that dispute involves any question (whether of law or fact)
on which the existence or extent of a legal right depends. In
addition to the jurisdiction conferred upon it by subsection (1) of
this section, the Supreme Court shall have such original
jurisdiction as may be conferred upon it by any Act of the National
Assembly….”

Section 1 (1) of the Supreme Court (Additional Original
Jurisdiction) Act, 2002 provides as follows:

“In addition to the jurisdiction conferred upon the Supreme
Court of Nigeria by section 232 (1) of the 1999 Constitution, the
Supreme Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute between–

• the National Assembly and the President;
• the National Assembly and any State House of Assembly;
  and
• the National Assembly and the State of the
  Federation,

in so far as that dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right
depends.”

WHO MAY BE A PARTY TO A CASE BEFORE THE SUPREME COURT IN
ITS ORIGINAL JURISDICTION?

Section 3 of the Supreme Court (Additional Original
Jurisdiction) Act, 2002 (which an amendment of section 20
of the Supreme Court Act, Cap. S15, L.F.N. 2004) provides in any
such suit by or against the National Assembly, the nominal party
shall be “the National Assembly;” and
that in any such suit by or against a State House of Assembly, the
nominal party shall be “the Speaker of the State House
of Assembly.” 

MANDATORY CONDITION PRECEDENT TO NATIONAL ASSEMBLY
INSTITUTING AN ACTION AT THE SUPREME COURT

 The Schedule to the Supreme Court
(Additional Original Jurisdiction) Act, 2002, Cap S16, LFN,
2004 provides as follows:

• “Neither the National Assembly nor State House of Assembly
  shall institute or initiate legal proceedings under this Act except
  upon the resolution of the House passed by a simple majority of the
  members of that House present and sitting at the time the
  resolution is put to vote.
• No legal proceedings shall be initiated or instituted by or
  on behalf of the National Assembly under the Act except upon the
  resolution which has been passed by both Houses of National
  Assembly by a simple majority of the members of each House present
  and sitting at the time the resolution is put to vote.”

LEGAL IMPLICATIONS OF THE ABOVE PROVISIONS:

 It appears that the legal
implication of the above provisions is as follows:

• The Senate of the Federal Republic is not entitled to file a
  case direct at the Supreme Court. Only the National Assembly may
  file an action at the Supreme Court. The Senate is an arm (a
  branch) of the National Assembly of the Federal Republic of
  Nigeria. But the Senate is not synonymous with the National
  Assembly of the Federal Republic of Nigeria. Section 4
  of the Supreme Court (Additional Original
  Jurisdiction) Act, 2002, Cap S16, LFN, 2004 defines the
  expression “National Assembly”
  to mean “the Senate and the House of Representatives
  established by the Constitution.” The Senate cannot represent
  the entire National Assembly.
• All actions filed direct at the Supreme Court by the National
  Assembly of the Federal Republic of Nigeria must be commenced under
  the title, “National Assembly of the Federal Republic
  of Nigeria” as the nominal party/Plaintiff. Example,
  where the action is against the President of the Federal Republic,
  the heading/title of the suit shall be couched thus:

“The National Assembly of the Federal Republic of
Nigeria ——- Plaintiff

And

The President of the Federal Republic of Nigeria ———————
Defendant”

• What affects the Senate of the Federal Republic is the business
  of the Senate and not the business of the entire National Assembly
  of the Federal Republic of Nigeria. Thus, section 292 (1) (a)
  relates to only the powers of the Senate (not the entire National
  Assembly) to approve the removal of a judicial officer. Besides, a
  dispute between the Senate of the National Assembly and the
  President of the Federal Republic is obviously not a dispute
  between “the National Assembly and the President” as
  envisaged by section 1 (1) of the Supreme Court (Additional
  Original Jurisdiction) Act, 2002, Cap S16, LFN,
  2004.
• Both Houses of the National Assembly must pass a
  Resolution before the National Assembly can validly commence an
  action at the Supreme Court — From this provision, it is
  obvious that before the National Assembly of the Federal Republic
  of Nigeria can validly initiate any action direct at the Supreme
  Court under section 1 of Cap S16, LFN 2004, the both houses of the
  National Assembly must hold a meeting, and during such a meeting
  both Houses must pass a resolution supported “by a simple
  majority vote of the members of each House present and sitting at
  the time the resolution is put to vote.”
• The National Assembly cannot commence an action at the Supreme
  Court if it has not held a meeting to pass the requisite resolution
  – The Schedule provides that the both Houses of the National
  Assembly must be physically in session, that is, “sitting at
  the time the resolution is put to vote.” Accordingly, no
  resolution of the National Assembly can be passed for this purposes
  unless and until both houses have had a physical
  meeting/sitting/session. It would be recalled that
  com had reported that the Senate pf the Federal
  Republic had announced that it would cut short its break and
  reconvene on Tuesday, 29 January 2019, to discuss and take a
  decision over CJN Onoghen’s suspension (https://www.vanguardngr.com/2019/01/suspension-of-onnoghen-senate-to-reconvene-on-tuesday/)^[1].
  The Senate later cancelled the scheduled plenary billed for Tuesday
  (29/01/2019), and decided to approach the Supreme Court over the
  matter. (https://thecitizenng.com/senate-approaches-supreme-court-to-reinstate-onnoghen-cancels-plenary-today/)^[2]. The
  Clerk of the Senate, Mr Nelson Ayewoh, who announced the
  cancellation in a statement signed by him, did not give reasons for
  the action. He only explained that the federal lawmakers would
  resume on February 19, 2019. But the Special Adviser (Media) to the
  Senate President, Mr. Yusuph Olaniyonu, in a statement explained
  that the cancellation was due to the last-minute decision by the
  “Senate leadership” to seek judicial
  interpretation to Onnoghen’s suspension by President Muhammadu
  Buhari. (https://punchng.com/senate-asks-scourt-to-reinstate-onnoghen-says-buhari-cant-remove-cjn/)^[3]. The following can be
  distilled from all the above:
• The National Assembly never met to pass any resolutions to go
  to the Supreme Court over CJN Onoghen;
• The Senate as a house never met over the issue. Even if the
  Senate had met, it would not have changed the situation because the
  entire National Assembly must authorize the action.;
• The decision to institute the action at the Supreme Court was
  taken by the “Senate leadership” and not the entire Senate. The
  Senate leadership has no powers to authorize such action. Even the
  leadership of the entire National Assembly cannot authorize such
  action. Only a resolution supported “by a simple majority of
  the members of each House present and sitting at the time the
  resolution is put to vote” is capable of authorizing the
  National Assembly (not the senate) to institute an action at the
  Supreme Court of Nigeria. There is no evidence or record that such
  a resolution was passed before suit No SC/76/2019 was filed at the
  Supreme Court.

THE SENATE ACTED OUT OF ANGER

Anger can be blinding. This is why prolific writer Sue
Cartwright who goes under the pen name Nikki
Sex observed that an angry man rarely stops to let facts
get in the way of his fury. It is therefore when one is angry that
one is expected to exercise the most care, so as to not allow one’s
anger push one into grave errors. As Chaim Potok
(1929-2002), American Jewish^[4]
author and rabbi^[5]
once stated: “It is when you are angry that you must watch how you
[act].” Yes, anger is a valid emotion. It’s only bad when it takes
control of you that it makes you to do the things you don’t want to
do. Senate had obviously allowed anger to take control, hence, its
leadership acted hastily and in the process forgot what the law
says on this matter with respect to Supreme Court’s original
jurisdiction.

CONCLUSION & RECOMMENDATIONS

Without prejudice to what their Lordships of the Supreme Court
may choose to decide in the present case, (because their decision
is supreme/final), I respectfully submit, based on the above
provisions, explanations and the reasons I have given, that the
Supreme Court of Nigeria does not have ORIGINAL jurisdiction to
hear or entertain Suit No SC/76/2019 as it is presently
constituted. The appropriate Court to hear and determine the case
at first instance is the Federal High Court under section 251(1)
(p), (q), & (r)of the Constitution of the Federal Republic of
Nigeria, 1999 (as amended), which provides as follows:

“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–
(p) [relating to] 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;”

Issues relating to whether or noit a court of law has
jurisdiction are fundamental and lack of jurisdiction is fatal. See
OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK
(1983)6 S.C. 158; see also OMOKHAFE v. Military Administrator
(2005) 2 MJSC 173. In the Supreme Court case of MADUKOLU v.
NKEMDILIM (1962) 1 ALL NLR 589, the Supreme Court had provided the
following guide as to determining whether a court has jurisdiction.
Hon Justice Vahe Bairamian (FJ) while
delivering the lead judgment in that case stated as follows:

“Put briefly, a court is competent when:

• itis properly constituted as regards numbers and
  qualifications of the members of the bench, and no member is
  disqualified for one reason or another; and
• thesubje`ct matter of the case is within its
  jurisdiction, and there is no feature in the case which prevents
  the court from exercising its jurisdiction: and
• thecase comes before the court initiated by due
  process of law, and upon fulfilment of any condition precedent to
  the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a
nullity however well conducted and decided: the defect is extrinsic
to the adjudication.”

(Seehttp://www.nigerialaw.org/LawReporting/1962/Gabriel%20Madukolu%20&%20Ors%20v%20Johnson%20Nkemdilim.htm^[6]
Accessed February 03, 2019)

However, in the case of Plateau State of Nigeria &
Another v. Attorney General of the Federation & Another
(SC/113/2004) [2006] NGSC 39 (20 January 2006), a slightly similar
issue arose for determination. The suit was commenced in the name
of the name of “Plateau State of Nigeria” instead of in the name of
“Attorney-general of Plateau State of Nigeria,” which is the
appropriate nominal party for suits by or against a State. A
preliminary objection was filed by the Defendants, praying the
Supreme Court to strike out the case for want of jurisdiction. A
major ground of the Preliminary objection was that “both plaintiffs
herein are by virtue of (sic) respectively, have no requisite locus
standi to institute this action.” The Supreme Court ruled as
follows:

“The issue here pertains to the names by which the
parties sued.
Under section 20 of the Supreme Court Act,
it is provided that a State shall sue or be sued in the name of
the Attorney-General in respect of suits founded under
section 232(1) of the Constitution. While section 3 of
the Supreme Court (Additional Original
Jurisdiction) Act, provides that a State House of Assembly
shall institute or defend an action by the Speaker
of the House of Assembly. I must say at once
that both the Attorney-General and the Speaker are nominal
parties only. The principal, real or substantive parties are
the State and the House of Assembly,
respectively. The question therefore is – is it proper for Plateau
State of Nigeria not to have sued in the name of the
Attorney-General or the House of Assembly not to have sued in the
name of its Speaker? I believe the Plateau State Government as well
the House of Assembly of Plateau State are
the substantive or principal or real parties,
while the Attorney-General and Speaker are
merely nominal parties. This is therefore a mere
irregularity. The irregularity is in my view
clearly procedural which can and should be waived or
overlooked. If
the substantive or principal parties are here
and they are, why bother about the nominal parties? The objection
in my view therefore fails.”

It is humbly submitted that the Plateau State case is clearly
distinguishable from the present (Senate’s) case. The Senate is not
the proper nominal party for (or on behalf of) the National
Assembly. Besides, the entire National Assembly has no interest in
this matter because section 292 affects only the Senate and not the
entire National Assembly. Furthermore, it must be pointed out that
designation/title of the parties is not the only
issue in the present case – Senate’s case. Fundamental issues of
jurisdiction are raised, as discussed above. Moreover, whether or
not there was proper authorization, issue of fulfilment of
mandatory condition precedent before the action was commenced, as
required by the Schedule to Cap S16, LFN 2004 is
another major issue.  A similar issue had arisen in the case
of Plateau State of Nigeria v. AG, Federation
(2006) 1 All N.L.R  304 and below is what the Supreme court
had to say in resolution of the issue (per
Kutigi, JSC):

“My conclusion therefore is that the first and
second plaintiffs did not authorize this suit and no instruction
was given for filing same at the time it was filed. Any
retrospective approval given by Governor Dariye is unhelpful as you
cannot put something on nothing. There was no suit filed on 24 June
2004 when one was purportedly filed. There was therefore nothing to
ratify. This ground of objection therefore succeeds.

From this dictum by
Kutigi, JSC, it appears that
the present suit, Suit No SC/76/2019, may face the same fate as had
befallen the case of Plateau State in 2006. There is no way the
entire National Assembly can even try to rescue the case by perhaps
convening a meeting and passing a resolution to ratify Suit No:
SC/76/2019; such at ratification would be an exercise in
futility.

Finally, I do not think section 16 of the Supreme Court
Act, Cap S15, LFN, 2004, would apply in this case, because
section 16 may only apply with respect to the Supreme Court’s
“Jurisdiction to hear appeals in certain
matters” Section 16 would, I think, not have any
application when the Supreme Court is exercising its original
jurisdiction. Also, it is respectfully submitted that section
17 (1) (b) of the Supreme Court Act, Cap S15, LFN,
2004, under which the Supreme Court shall “grant,
either absolutely or on such terms and conditions as the Court
thinks just, all such remedies whatsoever as any of the parties
thereto may appear to be entitled to” is not
relevant to the present case because the provisions of section 17
may only apply “with respect to the exercise of the original
jurisdiction conferred upon the Supreme Court.” In other
words, it is only in respect of those cases in which original
jurisdiction has already expressly been conferred
on the Supreme Court, that section 17 may be looked at. This
implies that if the Supreme Court does not have original
jurisdiction under the relevant legislation, for this purpose, the
Constitution and the Supreme Court
(Additional Original Jurisdiction) Act, 2002, section 17
of the Supreme Court Act may not be considered. From all our
discussions, above, it is clear that the Supreme Court does not
possess original jurisdiction over disputes between the
Senate of the Federal Republic and the
President of the Federal Republic of Nigeria – see section
232, CFRN, 1999, section 1 and section 3 of the Cap S16, LFN
2004.  The applicable legal maxim is
Expressio Unius Est Exclusio Alterius
(meaning, “the express mention of one thing is the exclusion of all
the others”). In the English case of Dorval v.
Dorval, 2006 SKCA 21 (CanLII), Justice Cameron explained
the maxim thus: “… to express
one thing is to exclude another.” Section 232, CFRN,
1999, and sections 1 and 3 of Cap S16 have expressly stated the
only instances in which the Supreme Court may
exercise original jurisdiction; the present case
is impliedly excluded. Hence, it is humbly submitted that section
17 of Cap S15, LFN, 2004, should not have any application.

The Supreme Court may only have appellate jurisdiction over the
such disputes (between the Senate of the Federal
Republic and the President of the Federal Republic
of Nigeria) through the Court of Appeal, by virtue of
section 251 (1) (q), (p), & (r), CFRN, 1999. To
leave no one in doubts, section 17 of the Supreme Court Act, Cap
S15, LFN, 2004, provides as follows:

“With respect to the exercise of the original jurisdiction
conferred upon the Supreme Court by subsection (1) of section 212
of the Constitution or which may be conferred upon it in pursuance
of section 212(2) of the Constitution, the following provisions
shall apply- (a) subject to the express provisions of
any enactment, law and equity shall be administered
concurrently; (b) in every cause or matter pending before it,
the Supreme court shall grant, either absolutely or on such terms
and conditions as the Court thinks just, all such remedies
whatsoever as any of the parties thereto may appear to be entitled
to in respect of any legal or equitable claim properly brought
forward by them in the cause or matter, so that, as far as
possible, all matters in controversy between the parties may be
completely and finally determined, and all multiplicity of legal
proceedings concerning any of those matters avoided;
(c)  subject to the express provisions of any
enactment, in all matters in which there was formerly or
is any conflict or variance between the rules of equity and the
rules of the common law with reference to the same matter, the
rules of equity shall prevail; (d) in addition to any other powers
conferred upon the Supreme Court by any enactment, the Supreme
Court shall, have and may exercise all powers and authorities which
are vested in or capable of being exercised by it under the
Constitution of the Federal Republic of Nigeria; and (e) the
Supreme Court shall observe and enforce the observance of customary
law to the same extent as such law is observed and enforced in the
Nigerian Courts.”

All in all, mine is a mere opinion, respectfully and disinterest
offered, without prejudice to the wisdom of the Supreme Court of
Nigeria, which has the final say. The Supreme Court is a court of
law, possessing appellate,
original and supervisory
jurisdictions. It has also been described as a court of policy. I
respect their Lordships. The ball is now in their court, to do
justice to the case, according to law. We are bound by their
decisions. “Let rule of law prevail” is my prayer always. As
observed by His Lordship, Hon Justice Obaseki, JSC, in
Military Governor of Lagos State v. Ojukwu (2001)
FWLR (Part 50) 1779 at 1802, “the Nigerian Constitution is
founded on the rule of law, the primary meaning of which is that
everything must be done according to law. Nigeria, being one of the
countries in the world, … which profess loudly to follow the rule
of law, gives no room for the rule of self-help by force to
operate.”  I had referred to this dictum elsewhere – see 
https://www.lawyard.ng/legal-implications-of-the-two-thirds-majority-vote-required-to-successfully-remove-the-head-of-a-legislative-house-in-nigeria/^[7].

God help Nigeria!

Respectfully,

Sylvester Udemezue