THE DISTINCTION BETWEEN FEDERAL REPUBLIC OF NIGERIA AND FEDERAL GOVERNMENT IS UNNECESSARY: A REVIEW OF AG LAGOS V AG FEDERATION & ORS (2015) 62 NSCQR 1155[1]

1.0. INTRODUCTION

The full bench of the Supreme Court was called upon by the Attorney General of Lagos State via an Originating Summons to answer three questions to wit:

a. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999 the said Value Added Tax Act is an existing law within the meaning of Section 315 if the said Constitution, being a Federal Legislation which is deemed to be an Act of the National Assembly?

b. If the answer is in the affirmative, whether the combination of the provisions of Sections 2, 4, 6 and 7 of the said Value Added Tax Act which empower a Federal Organ to impose and collect taxes on the supply of all goods and services other than those listed in the first schedule to the said Act amount to an imposition of tax on the supply of all goods and services within Lagos State of Nigeria and within other states of the Federation?

c. If the answer to question 2 is in the affirmative, whether sections 2, 3, 4, 5, 6 and 7 of the Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution?

The 1st Respondent raised two grounds of preliminary objections that is:

a. The Plaintiff’s cause of action relates to acts of a Federal Organ and cannot form the basis of invoking this Honourable Court’s original jurisdiction to entertain this;

b. The entire suit constitutes an abuse of court process and should be struck out.

The Supreme Court had no difficulty in deciding the case on the basis of the Preliminary Objections. In doing this, the Supreme Court made a rather curious distinction between the Federal Republic of Nigeria and the Federal Government of Nigeria; holding that while it had original jurisdiction where a State has a dispute with the Federal Republic of Nigeria, it does not have original jurisdiction when the same State has a dispute with the Federal Government of Nigeria. That distinction in my reckoning is merely technical; that is the aim of this case review i.e. to show that the distinction is uncalled for.

It should be noted that the conditions for the Supreme Court to be seized of its original jurisdiction under Section 232(1) of the 1999 Constitution (as amended) was established in the case of AG Lagos State v. AG Federation[2] referred to by Kekere-Ekun JSC at page 1284 thus: In Attorney General of the Federation v. Attorney General of Imo State (1983) 4 NCLR 178 it was held that before the original jurisdiction of the Supreme Court can be invoked under Section 212 of the 1979 Constitution, the following criteria must be satisfied:

1. There must be a justiciable dispute involving any question.

2. The dispute must be:

a. between the Federation and a State in its capacity as one of the constituent units of the Federation, or

b. between the Federation and more States than (sic one?) are in their capacities as members of the constituent units of the Federation;

c. between States in their aforesaid capacities, and the dispute must be one on which existence or extent of a legal right in the aforesaid capacity is involved.

2.0. HOLDINGS

The Lead Judgement of the Court was read by M D Muhammad, JSC with whom the other members of the Bench concurred. In delivering the Lead Opinion, M D Muhammad JSC observed thus: Plaintiff’s grouse as captured inter-alia in the foregoing paragraphs is about a dispute between the Federal Government and the Governments of the States rather than between the Federation and the various States. It is also a dispute pertaining to the operation of an agency of the Federal government, Federal Inland Revenue Service (FIRS), vis-à-vis an agency of the plaintiff. It is not unreasonable to also assess the dispute as one which seeks the interpretation and examination of the 1999 Constitution as it affects both sides to plaintiff’s suit (Emphasis mine)[3]. The perspective expressed by M D Muhammad JSC is not new. Mahmud Mohammad JSC had while holding that the Attorney General of Kano State had not raised any complaint against the Federal Republic of Nigeria in AG Kano v. AGF[4] observed that: “However, quite contrary to the requirements of Section 232(1) of the 1999 Constitution, the dispute disclosed in the plaintiff’s statement of claim is a dispute between the Government of Kano State and its agencies and the Government of the Federation and its agencies…”

3.0. CRITICISM

In attempting a criticism of this decision, I understand that the Supreme Court is the highest court in Nigeria and its decisions must be followed by other courts in Nigeria and I also understand that the Supreme Court does not usually review its previous decisions. In Basinco Motors Ltd. V. Woermann-Line[5]: “I must quickly explain that revisiting or overruling its previous decisions by an apex court is not a random exercise. This court will surely revisit or overrule its previous decisions to curb perpetration of injustice. Where the cases are based on legislations or statutes it obviously requires an amendment to the particular statutes to overrule such cases.”

1. The principle of audi alteram partem: This principle says that before a decision which may affect a person is made, the adjudicating officer must ensure that he/she gives the person an opportunity to be heard. Where a court raises a point suo motu, this principle means, the court will call counsel to address it on a point it thinks may weigh on its mind in deciding the case one way or the other. As highlighted above, the 1st Defendant raised two grounds of preliminary objections (none of which focused on the distinction between the Federal Republic of Nigeria and the Federal Government of Nigeria). To the extent to which the Supreme Court struck out the suit of the Plaintiff on the basis of this distinction, the Supreme Court offended the basic principle of audi alteram partem. In Victino Fixed Odds Ltd. v. Ojo[6], Fabiyi JSC observed that: “It is certain that fair hearing by a court or other judicial tribunal under section 36(1) of the 1999 Constitution — the grundnorm, incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a court or tribunal without being an opportunity of being heard. The rule is one of the essential cornerstones of our judicial process. In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision, it is only when the party aggrieved has been heard that the trial judge would be seen as discharging the duty of an unbiased umpire…. The violation of the rule of audi alteram partem, per se, lies in the breach of the fundamental human right. Once right is violated, it is irrelevant whether a decision made subsequent thereto is correct…. It should be further stated that on a breach of the right of fair hearing, an appellate court does not go to the reasons for its breach or the consequences of same. It has no alternative but allow the appeal against the decision and treat it as though there has been no hearing at all. An appellate court is bound to follow this course in the hearing of the appeal. A denial of the right to be heard is a breach of constitutional right, natural justice and rules of court. Such cannot and ought not be condoned in any respect. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial judge or court has heard both sides in the conflict.” However, worthy of note is the contrary view of Rhodes-Vivour JSC in Gbagbarigha v. Toruemi[7] that: “When a judge raises an issue on his motion, or raises an issue not in the contemplation of the parties, or an issue not before the court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails… but there is an exception to this procedure. There would be no need to call on counsel to address the court on an issue raised suo motu by the judge: (1) when the issue relates to the court’s own jurisdiction; (2) when both parties are not aware (sic of) or ignored a Statute which may have bearing on the case; or (3) when on the face of the Record serious questions of the fairness of the proceedings is evident.” Based on the facts of this case, the criticism discussed above fails.

2. Secondly, government like the directors of a company in relation to a company[8] is the directing mind of a State or the Federation. The Federation or a State therein, cannot carry out its functions without a government. Thus, Learned Writer, Kehinde Mowoe observed[9] that: Generally, the concept of federalism relates to the division of power between a national government, and other regional or state governments, and sometimes, local governments. It cannot and should not be the position of the law that the actions of the Federal Government of the Federal Republic of Nigeria as against an agency of the Federal Government cannot be ascribed to the Federal Republic of Nigeria; such a view will be antithetical to the very idea of modern States wherein the people donate to government sovereignty in order to meet the general needs of the people of the State[10]. Section 317(1) of the 1999 Constitution further provides that: Without prejudice to the generality of section 315 of this constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against- the former authority of the Federation as representative or trustee for the benefit of the Federation; any former authority of a state as representative or trustee for the benefit of the state, shall on the date when this section comes into force and without further assurance than the provisions thereof vest in, or become exercisable of, enforceable by or against the President and Government of the Federation, and the Governor and Government of the state, as the case may be. Perhaps, it was the fluid nature of the distinction that Kalgo, JSC had in mind when the jurist observed[11] in Attorney General of Kano State v. Attorney General of the Federation: “It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of…. As stated earlier, Attorney General of a State or the Federation can be sued in any civil claim or complaint against the Government of a State or the Federation as the case may be, but this can only properly happen where the claim or complaint is directly against the State or Federal Government concerned. In this case, the Federal Government was not directly concerned and no relief was sought against it by the Plaintiff in the action. The provisions of Section 232 of the 1999 Constitution under which this action is purported to be instituted cannot therefore in my view be applicable here.”

3. Thirdly, the distinction is with respect, merely cosmetic. All the Supreme Court needs to direct its mind when a party desires it to exercise its original jurisdiction is to determine whether the complainant is the whole country as represented by the Federal Republic of Nigeria or a federating unit styled the State[12]. It does not need to bother itself as to any distinction that may exist between the Federal Republic of Nigeria and the Federal Government of Nigeria or a State and its Government. Courts in modern times are always enjoyed to do substantial justice and avoid the lure of technical justice. Indeed, M D Muhammad JSC noted that[13]: I am in complete agreement with learned senior counsel to the plaintiff that the crux and substance of the content of the affidavit in support of plaintiff’s amended originating summons should inform our decision whether or not to assume jurisdiction over plaintiff’s suit. It is indeed the law that the form in which plaintiff’s claim has been couched should not be the overriding consideration. In the instant matter only consideration of the crux of the plaintiff’s claim will ensure the just resolution of the issue in dispute. In the case of Plateau State of Nigeria v. Attorney General of the Federation[14], the Supreme Court was called upon to decide whether or not the Plaintiff could call upon it to exercise its original jurisdiction in the name as displayed on the Originating Summons in the light of Section 20 of the Supreme Court Act which required the Plaintiff to sue in the name of Attorney General of Plateau State. The court by a split judgement of 4–3[15] held that the failure of the Plaintiff to sue by the name of the Attorney General of Plateau State was not fatal to its case. The dictum of Peter-Odili JSC in the case under review observed quite rightly that[16]: “From the above in context with the claims of the plaintiffs within paragraphs 7, 8, 13, 15 and 19 stated with clarity their grouse and in so showing have placed on the table without realizing upon whom their displeasure rests which I see to be the Federal Inland Revenue Service (FIRS), though an agency of the federal government but is not the federal government or even the Federation simpliciter.”

4. Fourthly, it is respectfully submitted that it will be against the Spirit of the Constitution to confer original jurisdiction in a dispute between the Lagos State Government and the Federal Government of Nigeria on the Federal High Court as against the Supreme Court under Section 232(1) of the 1999 Constitution (as amended). This scenario should be juxtaposed with one in which the Lagos State Government has a dispute with a Federal Government agency like the Federal Inland Revenue Service. In the latter scenario, the Federal High Court will have original jurisdiction under Section 251 of the 1999 Constitution (as amended). The idea behind conferring original jurisdiction on the Supreme Court was to ensure speedy dispensation of justice and the benefit of the highest cum best judicial minds that the nation can present at every point in time to decide nutty matters that affect Nigeria’s Commonwealth.

4.0. CONCLUSION

In conclusion, it will be seen that ultimately the Supreme Court was right to strike out the suit of the Plaintiff as the grouse of the Lagos State was against the action of an organ of the Federal Government i.e. the Federal Inland Revenue Service and not the Federal Government and additionally or in the alternative, the suit was an abuse of the process of the court[17]. However, the Court needed not to have raised a cosmetic distinction between the Federal Government of Nigeria and the Federal Republic of Nigeria.

The Supreme Court is not a court that easily overrules itself. However, the opinion of Oputa JSC in Adegoke Motors Ltd. v. Adesanya[18] may offer a glimmer of hope. He held: ‘We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per in curiam, such counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.’ offers some comfort. This writer thus hopes that the next time the Supreme Court has an opportunity to consider facts similar to this in respect to the difference between the Federation Government of Nigeria and the Federal Republic of Nigeria, the court will avoid such a distinction or better still blur the lines of such distinction.

In the meantime, counsel who desires to call upon the primus interpares of Nigeria’s judiciary to exercise its original jurisdiction under Section 232(1) should tread the path of caution so that an otherwise good case would not be lost on an otherwise technical ground.

[1] The author, Oluwakemi S. Adeyemi is an Associate at P O Bajowa Chambers.

[2] (2004) 18 NWLR (Pt. 904) 1a @ 125–126

[3] At page 1218. Mahmud Mohammad JSC (later CJN) at pages 1234–1235, Fabiyi JSC at page 1243, Ngwuta JSC at page 1251, Kekere-Ekun JSC at page 1285–1286 all expressed views that expressly adopted the lead opinion quoted above. However, Peter-Odili and Okoro, JJSC did not express any opinion on this point.

[4] 2007 LPELR-618 at page 21

[5] [2009] 6 MJSC (Pt. 1) 66 at 99–100 per Adekeye JSC

[6] [2010] 6 CMLR 1 at 16–17

[7] (2013) 215 LRCN 152 at 172

[8] Section 63(3) of the Companies and Allied Matters Act Cap C20 LFN 2004.

[9] At page 49 of the book Constitutional Law in Nigeria (2008)

[10] See Section 14(2)(a) of the 1999 Constitution (as amended)

[11] 2007 LPELR-618 at pages 28–29

[12] Nominally represented by the Attorney General of the Federation and the Attorney General of the State: see Plateau State of Nigeria v. AGF (2006) LPELR-2921 page 40 per Kutigi JSC. See also Section 20 of the Supreme Court Act Cap S15 of LFN 2010.

[13] At page 1214 of the report of the case under review

[14] (2006) LPELR-2921

[15] Ultimately, all justices of the Supreme Court concurred with the lead opinion of Kutigi JSC expressed at page 40. However, 3 of them (Uwais, Tobi and Oguntade JJJSC at pages 44, 83 and 109–110 respectively) disagreed with him on the consequence of the Plaintiff not suing by the name of Attorney General of Plateau State while three Justices (namely Ejiwunmi, Dahiru Musdapher and Pats-Acholonu JJJSC at pages 70, 93 and 95 respectively) agreed with him. On when a concurring opinion can become a dissenting opinion, see Emeka Nwana v. Federal Capital Development Authority and 5 ors (2004) 13 NWLR (Pt. 889) 128 at 140–141 per Niki Tobi JSC. You may also wish to see this writer application of the principle via: https://medim.com/@aolulaw17/understanding-rule-10-of-the-rules-of-professionalconduct-2007-through-the-eyes-of-the-supreme-bb9766747aa7

[16] Page 1270

[17] See Kekere-Ekun JSC at pages 1289–1291

[18] (1989) 3 NWLR (Pt. 109) 250 at 274–275 relied on in Jev v. Iyortom [2015] 2 MJSC (Pt. II) 1 at 23 by Mohammed JSC.

Legal Practitioner; Aspiring Economist