Legalpedia Citation: (2023-03) Legalpedia 57191 (SC)

In the Supreme Court of Nigeria

Fri Mar 31, 2023

Suit Number: SC.27/2009

CORAM

Musa Dattijo Muhammad SCN

Chima Centus Nweze SCN

Uwani Musa Abba Aji SCN

Mohammed Lawal Garba SCN

Helen Moronkeji Ogunwumiju SCN

PARTIES

ATTORNEY-GENERAL OF LAGOS STATE

APPELLANTS

1. NATIONAL SPORTS LOTTERY LIMITED
2. NSL LOTTERY MANAGEMENT COMPANY LIMITED

RESPONDENTS

AREA(S) OF LAW

: APPEAL, CONSTITUTIONAL LAW, EVIDENCE, GAMBLING, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant as plaintiff before the lower court challenged the propriety of the defendant carrying on business in Lagos without first obtaining a license from the Governor as provided by the Lagos state lotteries law 2004. The defendant on the other hand raised a preliminary objection challenging the jurisdiction of the trial court to entertain the suit.

The trial court overruled and dismissed the objection which led to an appeal to the Court of Appeal by the Respondent. The Court of Appeal allowed the appeal on the ground that the action sought to challenge the executive or administrative action of the Federal Government or its agency which the trial Court lacks the jurisdiction to entertain.

The Appellant was dissatisfied by the decision hence the instant appeal.

 

HELD

Appeal allowed

ISSUES

Whether the action against the respondents or the reliefs sought by the Appellant in the Originating Summons amount to a challenge of the validity of an executive or administrative action of Federal Government and the High Court of the State is therefore deprived of Jurisdiction to entertain the action?

Ø Whether the Court below was right to have declined to consider and determine issues 2 and 3 raised in the appeal?

 

RATIONES DECIDENDI

JURISDICTION – THE JURISDICTION EXERCISED BY COURTS

…the Courts of law being creatures of the statutes; including the Constitution, derive their jurisdiction to entertain and adjudicate over matters/cases/actions brought before them, from the same statutes that create or establish them.​

The Courts can therefore only exercise the jurisdiction conferred or vested in them by the statutes under which they were established or created, over matters or cases brought before them. Where jurisdiction is not conferred or vested in a Court under the statute which created or established it, then it cannot purport to assume and exercise jurisdiction it does not statutorily have.

In Egharevba v. Eribo (2010) 9 NWLR (pt. 1199) 411, this Court, per Adekeye, JSC stated the position thus:-

“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Act, Laws and Edicts – They cloak the Court with the power and jurisdiction of adjudication, if the Constitution, Decrees, Acts, Laws or Edicts do not grant jurisdiction to a Court or Tribunal, the Court and parties cannot by agreement endow it with jurisdiction. Moreover, Since Courts are creatures of the statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A Court must not give itself jurisdiction by misconstruing the statute creating it.”

See also Oloriode v. Oyebi (1984) 1 SCNJR, 390, Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 (SC), Okulate v. Awosanya (2000) 2 SC, 107, Onuorah v. KPRC (2005) 6 NWLR (pt. 921) 393, Obiuweubi v. CBN (2011) LPELR – 2185 (SC). Ifeajuna v. Ifeajuna (2000) 9 NWLR (pt. 671) 248 at 277. – Per M. L. Garba, JSC

 

JURISDICTION – THE JURISDICTION OF THE HIGH COURT

the jurisdiction vested or conferred on the High Court of a State in Nigeria to hear and determine the existence or extent of a legal, liability, obligation, interest or claim, etc, in civil proceedings, is very wide and extensive, made subject only to the provision of Section 251 and other provisions of the Constitution. This simply means that the High Court of State possesses jurisdiction to adjudicate over cases/matters/actions which do not involve or affect the jurisdiction vested by or under Section 251 or other provisions of the Constitution in other Courts specifically named in the provisions. The nature and extent of the jurisdiction of a State High Court has been recognised and repeatedly stated in many decisions by this Court, which include:-

Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNL, 296, (1985) 6 NCLR, 1, (1983) 6 SC, 158, Bob-Manuel v. Briggs (2003) 1 SC (pt. 1) 95, (2003) 5 NWLR (pt. 813) 323, Usman v. Umaru (1992) 7 SCNJ, 388, (1992) 7 NWLR (pt. 254) 277, Salami v. Chairman, L.E.D.B. (1989) 12 SC, 177, (1989) 5 NWLR (pt. 123) 539, Benin Rubber Producers Co-Operative and Market Union Ltd. v. Ojo (1997) 9 NWLR (pt. 521) 158, Savannah Bank of Nig. Ltd. v. Pan Atlantic Shipping & Transp. Agencies Ltd. (1987) 1 NWLR (pt. 49) 212. – Per M. L. Garba, JSC

‘SUBJECT TO’ – MEANING AND EFFECT OF ‘SUBJECT TO’

The phrase “subject to” employed or used by the legislature in the enactment of provisions of the Constitution or other statutes has received judicial interpretation by this Court in several decisions.

For instance, in the case of Ezenwosu v. Ngonadi (1992) 3 SCNJ, 59, (1992) LPELR – 1208 (SC), Nnaemeko, JSC, speaking on the effect of the use of the phrase in the provisions of a statute, stated that:-

“The phrase ‘subject to’ is a usual provision used to subject or subsume the provision of a subject statute, be it substantive or adjectival, to the provisions of a master enactment.”

Ejiwunmi, JSC, in Ebhota v. Plateau Inv. & Prop. Dev. Co. Ltd. (2005) 7 SC (pt. 11) 8, (2005) 15 NWLR (pt. 948) 266, defined the phrase as follows:-

“The expression is often used in statutes to introduce a condition, a proviso, a restriction, and indeed a limitation to the application of provisions made subject to.”

In the words of Uwaifo, JSC, in N.D.I.C v. Okem Enterprises Ltd. (2004) 18 NSCQR, 42, (2004) 10 NWLR (pt. 880) 107:

“Subject to” introduces a condition, a restriction, a limitation, a proviso; Oke v. Oke (1974) 1 ALL N.L.R. (pt. 1) 443 at 450. It subordinates the provisions of the subsection to the section empowered by reference thereto and which is intended not to be diminished by the subject section.”

Finally, Adekeye, JSC explained the legal effect of the use of the phrase in the provisions of a statute in Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83, (2009) 4 LPELR-2596 (SC), in the following precise way:

“Whenever the phrase ‘subject to’ is used in a statute, the intention, purpose, and legal effect are to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to.

In other words, the provision of the latter section shall govern, control, and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable to subordinate and inferior to the provisions of the other enactment.”

See also Tukur v. Govt. Gongola State (1989) 4 NWLR (pt. 117) 517 (SC), Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139, FRN v. Osahon (2006) 5 NWLR (pt. 973) 261, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (pt. 91) 622 at 655. – Per M. L. Garba, JSC

JURISDICTION – LIMITATION TO THE JURISDICTION OF THE HIGH COURT

In line with this definition and legal effect of the use of the phrase “subject to” in the provisions of a statute, the jurisdiction of a State High Court provided for in the provisions of Section 272 of the Constitution is limited, circumscribed, restricted, subordinated, and inferior to the provisions in Section 251 of the same Constitution to which it is made “subject to” in application. In plain and simple terms, the jurisdiction vested or conferred on a High Court of a State under the provisions of Section 272 does not include and apply to the jurisdiction vested or conferred by and under the provisions of Section 251 on the Federal High Court, to which it was made subject to.

The High Court of a State would therefore lack and does not have jurisdiction to entertain and adjudicate over matters/cases/causes for which the Federal High Court is specifically vested or conferred with jurisdiction under the provision of Section 251. See Oladipo v. Nig. Customs Serv. Board (2009) 12 NWLR (pt. 1156) 583, Adelekan v. Ecu-Line (2006) 5 SC (pt. 11) 32, (2006) 12 NWLR (pt. 993) 33, Zakari v. I.G.P. (2000) 8 NWLR (pt. 670) 666, Akegbejo v. Ataga (1998) 1 NWLR (pt. 534) 459, Anao v. Sun Publishing Ltd. (2013) 3 NWLR (pt. 1341) 399. – Per M. L. Garba, JSC

JURISDICTION – JURISDICTION OF THE FEDERAL HIGH COURT

Paragraph or Item (r) deals with civil action or proceedings challenging or questioning and affecting the validity of an executive action or decision by the Federal Government or any of its agencies over which the Federal High Court possesses the exclusive jurisdiction to adjudicate. Accordingly, any civil action by which the validity of an executive or administrative action or decision by the Federal Government or any of its agencies is challenged and the reliefs for declarations and injunction are sought, it is the Federal High Court that exclusively possesses the requisite judicial power and authority or jurisdiction to entertain and adjudicate by virtue of the provision in paragraph or item (r) of Section 251(1). The jurisdiction of a High Court of a State is expressly excluded over such actions or matters and so does not, in law, exist. – Per M. L. Garba, JSC

INTERPRETATION – INTERPRETATION WHEN PROVISIONS ARE PLAIN, CLEAR, SIMPLE AND STRAIGHT FORWARD

These provisions are very plain, clear, simple, and straightforward in words to be entitled to, by established principles on interpretation of Constitutional provisions. See A. G. Bendel State v. A. G., Federation (1981) 10 SC, 1, (1981) 1 FNLR, 179, Ishola v. Ajiboye (1994) 7 – 8 SCNJ, (pt. 1) 1 at 34, Awolowo v. Shagari (1979) All NLR, 120. They should be ascribed their natural and ordinary meanings since they are in themselves precise and unambiguous. – Per M. L. Garba, JSC

COURTS – DUTY OF THE COURT OF APPEAL TO CONSIDER AND DETERMINE ISSUES RAISED BEFORE IT

On the second issue of failure, or indeed refusal, by the Court below to consider, determine, and make pronouncements on the other issues; 2 and 3, validly and properly raised and placed before it by the parties in the appeal, after finding that the trial Court lacks jurisdiction to entertain the Appellant’s suit, all that needs to be said is that the failure/refusal constituted not only dereliction but abdication of its primary judicial duty/obligation to consider and make requisite pronouncements on all such issues in its judgment. As a penultimate appellate Court in the judicial hierarchy in Nigeria, the established and repeated position of the law is that the Court below has the primary duty to consider, determine, and make necessary pronouncements on all material issues properly placed before it by parties to an appeal, despite its views on one (1) or only some of those issues since its decision on the issues determined is subject to a further appeal at which it may be faulted in law, reversed, and set aside.

This position was restated by this Court in Adah v. NYSC (2004) 7 SC (pt. 11) 139 at 143 – 144, per Uwaifo, JSC in the lead judgment; a case decided years before the judgment appealed against, wherein His Lordship said: “The Court below, not being the final Court had a duty to decide the merit of the case upon the issues canvassed before it, notwithstanding that it resolved the issue of jurisdiction to the effect that the Benue State High Court lacked jurisdiction. This is because if an appeal to this Court was reversed on that issue, it would prevent the necessity of remitting the appeal to it to resolve the other issues arising from the appeal as originally made to it. See Ezeoke v. Nwagbo (1988) 1 NWLR (pt. 72) 616, Bayol v. Ahemba (1999) 7 SC (pt. 92; (1999) 7 SCNJ 223. The Court below was in error to have failed to resolve all the issues canvassed before it rather than confine itself only to the issue of jurisdiction.”

Tobi, JSC, in his concurring judgment, restated that: “All Courts below the Supreme Court are bound to take all issues canvassed by the parties, even when such issues appear superfluous or spent. This is to enable the Court exercising appellate jurisdiction to determine the issues, even if in the alternative. I think this Court has the exclusive jurisdiction or should I say prerogative, to do what the Court of Appeal did because it is the final bus stop of any litigation.”

In the result, the Court below is clearly wrong in law to have failed/refused to consider and make pronouncements on the other issues canvassed before it by the parties in the judgment appealed against and thereby unwittingly infringing on the parties’ right to fair hearing in the determination of the appeal. See Dasuki v. FRN (2018) 10 NWLR (pt. 1607) 300 at 343 (SC), PDP v. INEC (2018) 12 NWLR (pt. 1634) 533 at 556 (SC), Usararen v. FRN (2018) 10 NWLR (pt. 1607) 221 at 234 (SC), Ikpeazu v. Otti (2016) 8 NWLR (pt. 1513) 38 (SC). – Per M. L. Garba, JSC

JURISDICTION – JURISDICTION OF THE FEDERAL HIGH COURT – QUESTIONS THE COURT SHOULD ANSWER IN DETERMINING JURISDICTION UNDER SECTION 251 (1) (R) OF THE CONSTITUTION

Section 251 (1) (r) of the 1999 Constitution, (as amended), provides that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in “(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.”

In effect, in actions under this provision, the Court would be required to resolve three Sub-questions: (i) whether the claim relates to the validity of any executive or administrative action or decision; (ii) if either of the parties is the Federal Government or any of its agencies; and (iii) the nature of the reliefs, that is, whether they are for declaration, injunction, damages, or specific performance. PDP v Sylva (2012) LPELR-7814 (SC) 52-53, G-E, Oloruntoba-Oju v. Dopamu (supra) 815-816; 829-830, A-C, University of Abuja v Ologe (supra) 722, PDP v Sylva (2012) LPELR-7814 (SC) 52-53, G-E, Ladoja v INEC (2007) LPELR-1738 (SC) 27-28, G-D, Obi v INEC (2007) 11 NWLR (pt 1046) 565, 636-637, G-C; 638, B-E. – Per C. C. Nweze, JSC

CASES CITED

STATUTES REFERRED TO

1  Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Lagos State Lotteries Law 2004
3. Nigerian Communication Act, Cap. N97, Laws of the Federation of Nigeria, 2004
4. Mineral & Mining Act
5. National Lottery Act, 2005

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