The Supreme Court of Nigeria does not have original advisory jurisdiction. The apex court only have original and appellate jurisdiction on certain specified matters. See Sections 232 and 233 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
There is no constitutional support for the proposition and agitation by a section of the public that the Attorney General of the Federation should approach the Supreme Court for advise on how to resolve the constitutional logjam arising from the death of the Kogi State gubernatorial candidate of the All Progressives Congress (APC), Prince Abubakar Audu. It is a recondite reasoning that cannot stand legal test.
The Supreme Court cannot assume original jurisdiction on a matter that does not fall within the very limited scope of Section 232 of the Constitution. By original jurisdiction, I mean the power of a court to hear and determine a matter or dispute directly, as a court of first instance.
The original jurisdiction of the Supreme Court of Nigeria under Section 232 of the Constitution is limited to:
(1) dispute between the Federal Government and a State of the federation;
(2) dispute between States of the federation;
By virtue of Section 1 of the Supreme Court (Additional Original Jurisdiction) Act, 2002 the Supreme Court of Nigeria can also sit as a court of first instance in respect of disputes between:
(a) the National Assembly and the President;
(b) the National Assembly and any State House of Assembly; and
(c) the National Assembly and any State of the Federation,
No case or dispute, no matter how urgent and fundamental, can be taken to the Supreme Court directly if it does not fall under any of the five categories of disputes enumerated above. Every other cases can only be entertained by the apex court as an appeal from the decision of the Court of Appeal by invoking the appellate jurisdiction of the Supreme Court under Section 233 of the Constitution.
There are litany of decisions on the original jurisdiction of the Supreme Court. The following cases are instructive on the point: Attorney General of the Federation v. Attorney General of Abia State & 35 Ors (2001) 11 NWLR (Pt. 725) 689 and Attorney General of Bendel State v. Attorney General of the Federation & Ors. ( 1983) ANLR 208.
This is one aspect of our law that cannot be negotiated.
The proper court for interested parties, including the Independent National Electoral Commission (INEC), to approach over the Kogi State constitutional logjam is the Federal High Court. See Section 251 (1) (q) of the Constitution.
Given the fundamental nature of the issues arising from the death of Mr. Audu and the controversy surrounding it, it may be necessary to invoke the referral/reference clause under Section 295 of the Constitution.
Section 295 of the Constitution empowers the Federal High Court to refer substantial questions of law on the Interpretation or application of the Constitution to the Court of Appeal. Where the Court of Appeal is of the opinion that the question (s) referred to it from the Federal High Court involves a substantial question of law, it shall refer same to the Supreme Court and the Supreme Court shall give its decision on the question.
The court in which the question arose (in this case the Federal High Court) shall dispose of the in accordance with that decision. This is the only way that the Supreme Court can give direction on the Kogi State crisis.
No person or authority in Nigeria, not even the Attorney General of the Federation, can approach the Supreme Court directly except in respect of a dispute that falls within Section 232 highlighted supra.
In the case of F.R.N v. Ifegwu (2003) 15 NWLR (Pt.842)113, His Lordship, UWAIFO, J.S.C (as he then was) enunciated the position of the law on reference of substantial question of law thus:
” It is clear from those cases that there are conditions which must exist before a reference can be made under this provision. First, the question must be as to the interpretation or application of the Constitution. It is the foundation for even contemplating making a reference: see Gamioba v. Esezi II (1961) 2 SCNLR 237; Atake v. Afejuku (1994) 9 NWLR (Pt.368) 379.
“Second, such a question must arise in the proceedings in connection with an issue before the court making the reference: see Olawoyin v. Commissioner of Police (No. 2) (1961) 2 SCNLR 278, (1961) 1 All NLR 203; Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt.727) 468, (2001) 7 SC (Pt.11) 62. Third, the matter for reference must involve a substantial question of law. The court making the reference must decide the substantiality of the question: see African Newspapers of Nigeria Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (pt.6) 137.
“There might be instances where the question presents no difficulty in ascertaining whether it is substantial or not. But it is useful to take as a guide what was said by the Federal Supreme Court in Gamioba v. Esezi II (supra) at p.588 per Brett, F. J. that the question “must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced.” Fourth, the court making the reference to the higher court is not required to, and must not, give an opinion of law on the question: see Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 SC 112; (1981) 2 NCLR 358.”
From the foregoing, it is clear that the Supreme Court cannot intervene in this case. Therefore, the call made by some legal practitioners and commentators for the Attorney General of the Federation to approach the Supreme Court over the matter is legally indefensible and unnecessary.
However, the Attorney General of the Federation being the Chief Law Officer of the Federation by virtue of Section 150 of the Constitution can offer advice to the INEC on how to resolve the controversy. It should be noted that such advice is not binding on INEC.
In an earlier opinion, I had elaborately discussed the legal implications of the death of Mr. Abubakar Audu. It is now left for the APC to substitute its deceased candidate with another person. INEC should proceed with the supplementary election in the 91 outstanding polling units.
Inibehe Effiong is a Legal Practitioner.