In The Supreme Court of Nigeria
On Friday, the 21st day of October, 1983
Suit No: SC.22/1983
Before Their Lordships
GEORGE SODEINDE SOWEMIMO ....... Justice of the Supreme Court
MOHAMMED BELLO ....... Justice of the Supreme Court
ANDREWS OTUTU OBASEKI ....... Justice of the Supreme Court
ANTHONY NNAEMEZIE ANIAGOLU ....... Justice of the Supreme Court
KAYODE ESO ....... Justice of the Supreme Court
AUGUSTINE NNAMANI ....... Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS ....... Justice of the Supreme Court
Between
ATTORNEY GENERAL OF ONDO STATE Appellants
And
ATTORNEY GENERAL OF THE FEDERATION Respondents
ESO, J.S.C: This action was filed in this Court with a statement of claim dated 8th April, 1983, pursuant to the Rules of the Supreme Court 1977, which deal with the original jurisdiction of the Court. That jurisdiction is conferred upon the Supreme Court by section 212(1) of the Constitution of the Federation 1979 which I will hereinafter refer to in this judgment simply as "the Constitution". The action was brought by the Attorney General of Ondo State, on behalf of the Government of that State, against the Attorney General of the Federation and the Attorney General of all the other eighteen States in the Federation as representatives of the Government of the Federal Republic of Nigeria and the Governments of the States respectively. The Federal Electoral Commission (FEDECO) was also brought in as the 20th defendant.
The claim consists of a 33-paragraph statement of claim, which I do not consider necessary to set out in full herein for the purpose of the preliminary objection raised to the jurisdiction of the Court. It is necessary however to note that the statement of claim complains of the activities of the Federal Government which consist of interference with the constitutional and administrative functions of the Federal Electoral Commission in its charge of conducting the 1983 general elections to the offices of the President of the Federation, the Governors of the States and all the other elective offices in the country.
On 6th May, 1983, Mr. Fidelis Nwadialo, learned counsel for the 1st defendant, that is the Attorney General of the Federation, brought a motion seeking an order for the dismissal of the suit-
"on the grounds that, (a) this Court has no jurisdiction to hear the suit since it is not a matter which comes within the scope of the original jurisdiction of the Supreme Court as prescribed in section 212(1) of the Constitution of the Federal Republic of Nigeria 1979, and (b) the 20th defendant cannot be a proper party in an action brought under the afore-mentioned section of the Constitution".
This motion was fixed for argument on 22nd June, and on that day the Court took submissions from some of the learned counsel in the case. There were subsequent adjournments but unfortunately as one of the members of the Court, our revered colleague, the Hon. Justice Chukwunweike Idigbe, of blessed memory, died before the Court could deliver a ruling in the application, the application had to be relisted again for fresh hearing before another panel of the Court.
On the 21st and 22nd September, the application for dismissal of the suit on the ground of lack of jurisdiction by the Court was heard.
Mr. Nwadialo contended that the claim was not one within the scope of the original jurisdiction of the Supreme Court. Further, the 20th defendant, the Federal Electoral Commission was not a proper party to the suit. Counsel said that the complaint of the plaintiff is the alleged interference with and usurpation of the duties of the 20th defendant in relation to the preparation for the conduct of the 1983 election and also wrongful compilation and revision of the register of voters.
Counsel submitted that the duties of organising and undertaking and supervising elections in this country are imposed solely and exclusively on the 20th defendant that is, the Federal Electoral Commission by virtue of paragraph 6(a) of Part I of the Third Schedule to the Constitution of the Federal Republic of Nigeria.
These duties, counsel continued, are owed to the citizens of Nigeria and not to the States. There has been no averment that the legal rights of Ondo State are involved in this case.
Mrs. Akinsanya, learned counsel representing Lagos State, submitted that the real grouse in this case has been directed against the Federal Government of Nigeria, and only indirectly against the 20th defendant, the Federal Electoral Commission. The legal right as shown in this case, is complaint by Ondo State against the Federal Government, in regard to the conduct of the 1983 election.
Mr. Okuwa, learned counsel representing Ogun State, agreed with the submissions of Mrs. Akinsanya.
For his part, Mr. Akinrinsola, learned counsel representing the plaintiff, submitted that this Court has original jurisdiction in this matter. He referred the Court to his case as contained in paragraphs 10 to 23, and paragraphs 25 to 33 of the statement of claim. The Federal Electoral Commission, counsel urged, is a creature of the Constitution as an independent and impartial functionary of the Federation and not in existence for a section of the country. Counsel further urged that in the execution of its constitutional functions, under the Constitution, the Federal Electoral Commission is not subject to the control or direction of any person or authority.
It was the Federal Government that placed order for ballot boxes without the knowledge and consent of the Federal Electoral Commission. The action brought by the plaintiff as formulated, Mr. Akinrinsola submitted, must be justiciable, and the plaintiff has capacity to bring the action. There is a vested legal right in the plaintiff to see that chaos does not result from an improperly conducted election.
Learned counsel then submitted that the 20th defendant is a necessary party to the case. This defendant is made a party, not because it is a State but because it is the constitutional agent of the entire Federation.
Mr. Nwadialo replied to all these submissions by saying that if there is going to be a legal right, it has to be confirmed by the Constitution.
Now, it seems to me that what has been raised in this preliminary objection is the legal right of the plaintiff in so far as the case he has brought is concerned. Does this dispute involve any question on which the existence or extent of the legal right of the plaintiff depend? Again, and this is important, is Fedeco a State within the contemplation of s. 212(1) of the Constitution? For except it is such a State the issue of the dispute involving any question on which the existence of a legal right depends, will be secondary.
That section provides-
"212(1) 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 determining the question whether this Court has original jurisdiction in a case or not the provision of s. 212 (1) of the Constitution must be examined solely in relation to the particular case before the Court to see whether or not the correct parties, as contemplated by the provision of the Constitution, are before the Court. If the parties before the Court in that particular case are not those contemplated by s. 212 (1) of the Constitution, there is hardly any necessity for the examination of other issues. And for this reason I will first examine whether or not the parties to the controversy in this case before this Court are parties who can enjoy the previsions of section 212(1) of the Constitution, and seek the original jurisdiction of this Court.
In the Attorney General of the Federation v. The Attorney General of Imo State & 2 others (1982) 12 S.C. 274, this Court had cause to examine the scope of section 212(1) of the Constitution. This Court as per Bello, J.S.C.., said, after quoting the provision of the subsection (p.305)-
"For the purpose of invoking the original jurisdiction of the Court under sub-section (1) of the aforementioned section, [that is, section 212 of the Constitution] paragraph (a) of subsection (1), of section 19 and section 20 of the Supreme Court Act, 1960 provide as follows
19. (1) This section shall to apply any cause or matter touching or concerning-
(a) 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;
20. Any proceedings before the Supreme Court arising out of a dispute referred to in paragraph (a) of sub-section (1) of section 19 of this Act or against the Federation or a State shall--
(a) in the case of the Federation be brought in the name of the Attorney General of the Federation;
(b) in the case of a State be brought in the name of the Attorney General of the State."
For the avoidance of doubt, and as it was done by this Court in that case, it may be necessary to distinguish the powers of the Attorney General to bring any proceedings before this Court in accordance with the provisions of section 20 of the Supreme Court Act with respect to the exercise of the original jurisdiction of this Court under subsection (1) of section 212 of the Constitution from the powers of the Attorney General under general public law to secure the enforcement of public rights.
Indeed the powers of the Attorney General to institute any civil proceedings, whether by a relator action or otherwise, when the action involves the rights and interests of the public which he considers necessary for preservation of law and order or the prevention of public wrongs, are quite different from the powers possessed by the Attorney General to institute proceedings under s. 212(1) of the Constitution. The fact that a suit falls within the category of interference with public rights and injury to the public does not ipso facto qualify it to be brought in the Supreme Court under its original jurisdiction is provided by section 212(1) of the Constitution.
For, as I said in the case of Attorney General of the Federation v. The Attorney General of Imo State and 2 Ors. (supra) and see p. 327 (ibid) the jurisdiction of this Court as prescribed under s. 212(1) of the Constitution is a special jurisdiction. That provision limits the jurisdiction to any dispute "between the Federation and a State or between States" and no more. It does not cover dispute between a State and a body, which is not a State, or between the Federation and a non-State.
In the United States of America the same attitude is taken in regard to the original jurisdiction of the Supreme Court of that country conferred upon that court by Article 3, section 2(2) of the United States Constitution. In Oklahoma ex rel. Johnson v. Cook (1938) 304 U.S. 387, the State of Oklahoma brought an action, invoking the original jurisdiction of the Supreme Court, by seeking to enforce the rights of depositors and creditors of an insolvent State bank (definitely not the rights of that State) against one of the shareholders of the Bank. The court in dealing with jurisdiction was of the opinion that under Article 3, section 2(2) of the United States Constitution, a State could invoke the court's original jurisdiction only where the matter it has brought to the court directly affects the rights or interests of the State as a government. As to when such state as a State could invoke the jurisdiction, the court, in Oklahoma v. Atchinson, T. and S.P. Railway Co. (1900) 220 U.S. 277 at 289 held
"We are of the opinion that the words in the Constitution, conferring original jurisdiction on this court, in a suit 'in which a State shall be a party' are not to be interpreted as conferring such jurisdiction in every case in which the State elects to make itself strictly a party plaintiff on record and seeks not to protect its own property, but only to vindicate the wrongs of some of its people or to enforce its own laws or public policy against wrong doers, generally."
I think the observations of Harlan J. in Lousiana v. Texas (1900) 176 U.S. I apply not only to the circumstances in the United States but also to circumstances in this country. I will respectfully adopt the dictum of the learned Justice of the Supreme Court when he said-pp.24-25
"When the Constitution gave this court jurisdiction of controversies between States, it did not thereby authorise a State to bring another State to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not affect the property or the powers of the complaining state in its sovereign or corporate capacity, but at most affect only the rights of individual citizens or corporations engaged in interstate commerce."
Mixing the question of controversies with parties, Harlan J. said-
"Controversies in the clause extending the judicial powers of the United States to controversies between two or more States and to controversies between a State and the citizens of another State and the word party in the clause declaring that this court shall have original jurisdiction of all cases in which a State shall be a party, refer to controversies or cases that are justiciable as between the parties thereto, and not to controversies or cases that do not involve either the property or powers of the State which complain. . . . The citizens of the complaining state may, in proper cases, invoke judicial protection of their property or rights when assailed by the laws and authorities of another state; but their state cannot, even with their consent, make their case its case and compel the offending state and its authorities to appear as defendants in an action brought in this court."
It seems to me therefore, that in examining the preliminary objection to jurisdiction raised by the 1st defendant in this case, and in seeking whether or not the right parties are before the court one should examine the content of the controversy that the plaintiff seeks for determination between it and the defendants, and see whether the two parties have this controversy as States within the contemplation of s. 212(1) of the Constitution.
It is true that this plaintiff in bringing the action has instituted it against the Federation and all the other States in the Federation with Fedeco as its last defendant. That may be merely in form. To my mind, the fact that the defendants or nearly all of them are the Federation and States is not by itself sufficient to ground jurisdiction. The question should be asked, what is the action about? Does it in fact and in essence, constitute an action to be brought under the original jurisdiction of this Court?" Indeed, in making this enquiry, only a literal interpretation needs be given to s. 212(1) of the Constitution. There is no need for liberal or restrictive interpretation. The subsection means precisely what it says-dispute between (1) the Federation and a State or (2) between States.
We therefore look at the statement of claim to find out the real parties to the action. Paragraph 33 of the statement of claim discloses the claim of the plaintiff. The paragraph seeks fourteen declarations, injunctions compelling orders and an order for substitution of Fedeco for the Federation. Out of these fourteen declarations, injunctions and orders, only one, that is-
"An order of perpetual injunction to restrain the Federal Government of Nigeria the Accountant General of the Federation acting as agents of the Federal Government and all other functionaries of the Federal Government whether by themselves their servants and agents or otherwise however from making any payments or doing any act or thing in purported performance of the contract mentioned in claims 1 and 2 of paragraph 33 above."
is stricto sensu not a declaration, injunction or order against the FEDECO only. They are all declarations, injunctions and orders directed against FEDECO and not against the Federation or any State. Even the order for perpetual injunction, which I have set out above seeking to restrain the Federal Government etc., is in connection with "contract" which FEDECO has entered into or ought to enter into but which contract is being alleged to have been usurped by the Federal Government.
I have no doubt whatsoever that the action herein has no connection whatsoever with any real dispute between the plaintiff and the Federation or any other State in the Federation. It is a case between the plaintiff and the Fedeco, which is a body set up under the Constitution, independent of all governments (see Part 1 paragraph C of the 2nd Schedule to the Constitution). It cannot be said with any stretch of imagination, and it has never been so claimed however, that FEDECO is a State or could ever qualify to be a State.
A State, like the plaintiff/State may have genuine fears in a matter. It may in fact have a claim of right against some persons or bodies. But except that body is a State or the Federation it is idle hiding under s. 212(1) of the Constitution. A State is not a knight in shining armour undertaking the errands of just any of its citizens around. If it does, it may turn itself into the legendary Don Quixote who strikes at imaginary windmills. S. 212(1) of the Constitution has to be strictly observed before the original jurisdiction of the Supreme Court is invoked. If the original jurisdiction of the Supreme Court is to be loosely sought, the whole purpose of s. 212(1) of the Constitution is defeated. By the way the provision is worded, it leaves no room for any doubt whatsoever that a dispute between the Federation and a State or between two or more States is a sine qua non precedent to the invocation of the original jurisdiction of the Supreme Court.
The Supreme Court being the highest tribunal in the land is chosen by the makers of the Constitution because of its independence of both the Federal Government and the State Governments. If the States and the Federation are equal when it comes to the determination of a dispute between them before a tribunal, that tribunal must be one accepted by all parties to the dispute as independent of all the governments. This-highest confidence must not be tarnished by the extension of the jurisdiction, which is definitely limited by the provision, to cover bodies outside the purview of the provision.
I have said that the action in this case is in reality against FEDECO and I have also held that FEDECO is not a State. The action cannot be brought under the original jurisdiction of this Court. That should be the end of the matter in so far as this case goes and I think each case should always be examined on its own merit.
However, one of the questions that have been raised during the argument of this preliminary objection is whether FEDECO has been properly joined in this case.
I have given thought to whether or not this is an appropriate case to examine such question. I think the question would be better examined in a case where an action has primarily been brought against the proper parties and the question of joinder is a subsidiary issue. In this case, the defendants have been brought to the wrong court. That court has no jurisdiction over the issue as it has no jurisdiction over the defendants in the case. To consider the question of joinder of another party-the FEDECO-would appear to me to consider an academic question. This court has no jurisdiction for such exercise and must at all times resist the temptation.
This preliminary objection succeeds, and the action is hereby struck out for lack of jurisdiction. There will be no order as to costs.
SOWEMIMO, J.S.C. I have had a preview in draft, of the judgment just delivered by my learned brother, Kayode Eso, J.S.C. I agree with all his reasonings and conclusions. For the penultimate reason given by him, I agree that this action be struck out and that there should be no award of costs.
BELLO, J.S.C. I had the advantage of reading the judgment of my learned brother, Eso, J.S.C. For the reasons stated by him, I agree the action should be struck out on the ground that the statement of claim does not disclose any justifiable dispute between Ondo State and the Federation nor between Ondo State and any of the other States within the purview of section 212(1) of the Constitution. There will be no order as to costs.
OBASEKI, J.S.C. At the hearing of this action the 1st defendant's counsel raised two preliminary points of objection notice of which had been given in writing to the other parties to the action. I may emphasise the plaintiff in particular. The points of objection are
(1) That the plaintiffs claim as disclosed in the statement of claim does not fall within the claims in respect of which the original jurisdiction of the Supreme Court under section 212(1) of the 1979 Constitution of the Federal Republic can be invoked. In other words the Supreme Court has no original jurisdiction to entertain the claim.
(2) The Federal Electoral Commission being a party to the proceedings the action is improperly before the Supreme Court. In other words the Federal Electoral Commission is not a proper party against which the original jurisdiction of this court can be invoked. The Supreme Court is principally an appellate court and the only court in Nigeria with jurisdiction to hear appeals from the Federal Court of Appeal but the 1979 Constitution made special provision in section 212(1) conferring on it original jurisdiction to hear and determine disputes between the Federation and States or between the States comprising the Federal Republic of Nigeria. More particularly section 212(1) reads:-
"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 fact or law on which the existence or extent of a legal right depends."
This section came up for consideration and construction as to its scope and extent in the case of Attorney General of the Federation vs. Attorney General of Imo State and 2 others reported in (1982) 12 S.C. 274 and there is no doubt that this court is being called upon to consider the provisions of section 212(1) again. It is not surprising that counsel for the 1st defendant cited the above authority in support of his objection. Of the ten declaratory orders or judgments sought and listed in paragraph 33 of the statement of claim, eight are sought against the 20th defendant (i.e. the Federal Electoral Commission). Of the three orders of injunction sought only two are directed against the Federal Electoral Commission. The 14th item of claim is for an order for the 20th defendant (i.e. the Federal Electoral Commission) to be substituted for the 1st defendant. In effect it is directed against both the 20th defendant and the 1st defendant. It therefore appears that the real defendant to the claims filed is the 20th defendant (i.e. the Federal Electoral Commission). The Federal Electoral Commission does not in my opinion come within the definition "State" in the context in which the word State is used in section 212(1) of the 1979 Constitution and so I agree with my learned brother Eso, J.S.C., that the original jurisdiction of this court cannot be invoked in the matter against the 20th defendant.
There must be a dispute in existence between the States and the Federation before the original jurisdiction of the Supreme Court can be invoked. The examination of the statement of claim discloses no such dispute as is contemplated by section 212(1) of the 1979 Constitution. The dispute between the plaintiff and the 20th defendant is therefore one over which this court cannot exercise original jurisdiction. It should be taken before the competent High Court.
I have had the privilege of reading in draft the judgment just delivered by my learned brother Kayode Eso, J.S.C., and I find myself in absolute agreement with him in his opinion on all the points of objection raised.
For the reasons so ably set out in his judgment and the above reasons I would and I hereby uphold the objections of the 1st defendant and strike out the suit. There will be no order as to costs.
ANIAGOLU, J.S.C. The judgment just delivered by my learned brother, Kayode Eso, J.S.C., on the preliminary objection raised by the 1st defendant touching the issue of jurisdiction of this Court to entertain this action, which was brought in the Court's original jurisdiction, under section 212(1) of the 1979 Constitution, was made available to me in draft.
I am in entire agreement with the judgment and ruling and hereby hold that for the reasons stated in the judgment, this Court lacks the jurisdiction to entertain the action, which is hereby struck out with no order as to costs.
NNAMANI, J.S.C. I had a preview of the judgment just delivered by my learned brother, Kayode ESO, J.S.C. I agree entirely with his reasoning and conclusions.
This being a constitutional matter of some importance I intend to add a few comments. For the purpose of such comments, I shall adopt the facts as set down in my said learned brother's judgment except to the extent I may need them for my argument.
Not very long after service of the plaintiffs statement of claim, in fact to be precise on 6th May, 1983, Mr. F. Nwadialo, learned counsel to the 1st and 20th defendants (the 20th defendant is the Federal Electoral Commission and the 1st defendant is the Attorney General of NIGERIA on behalf of the Federal Government of Nigeria filed a motion on notice praying this Court for:
"(1) an order dismissing this suit on the grounds that, (a) this court has no jurisdiction to hear the suit since it is not a matter which comes within the scope of the original jurisdiction of the Supreme Court as prescribed in section 212(1) of the Constitution of the Federal Republic of Nigeria 1979, and (b) the 20th defendant cannot be a proper party in an action brought under the aforementioned section of the Constitution;
(2) for such further order or other orders as the Honourable Court may deem fit to make in the circumstances".
This preliminary objection calls into question the original jurisdiction of this Court having regard to the facts averred in the plaintiffs statement of claim and having regard to the proper meaning of section 212(1) of the Constitution of the Federal Republic of Nigeria (herein after known as the Constitution). Before examining section 212 of the constitution it need to be said, although it is obvious to the legal mind, that this being a matter touching on the general elections it must be borne in mind that a challenge on jurisdiction is not a challenge on merits of the case. In other words, at this stage the question is not whether the plaintiff's case has or has no merits but whether the plaintiff is in the right court.
Now to section 212(1) of the Constitution. It provides as follows:
"212(1). 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."
It is clear that the important words in that provision are "Federation", "State", "dispute" and "legal right". This Court in Attorney has happily determined the scope and proper meaning of those words General of Bendel State vs. Attorney General of the Federation and 22 Ors. (1981) 10 S.C. 1-230, and Attorney General of the Federation vs. Attorney General of Imo State and 2 Ors. (1982) 12 S.C. 274. In the latter case it was held that "State" in section 212(1) of the Constitution means one of the constituent units of the federation while "Federation" therein is synonymous with Federal Republic of Nigeria. In the earlier case, the words "dispute" and "legal right" were considered at great length in all the judgments. Dispute for purposes of section 212 of the Constitution must be a justifiable one and a State can only invoke the jurisdiction of this Court under section 212(1) of the Constitution if it can show that there is a real dispute between it and the Federation or another State. In toot case I said of dispute
"What then is dispute in the circumstances of this case? The Concise Oxford Dictionary defines dispute as controversy, debate, being argued about, heated contention. The Shorter Oxford English Dictionary 3rd Edition defines it as 'the act of arguing against, controversy, debate. An argumentative contention, a difference of opinion; a heated contention'. A 'controversy' in the constitutional sense must be one that is appropriate for judicial determination". "United States vs. Alaska S.S. Co. 253 U.S. 113, 116" Ibid p.230.
As for legal right it is clear that mere complaint of a breach of a constitutional provision is not enough to bring section 212(1) into play. The State which complains and which seeks to improve section 212 of the Constitution must have a legal right (either based on the Constitution, statute law or some other law which is injured to threatened. I would respectfully adopt the summary of the conditions precedent for invoking the jurisdiction of this Court under section 212(1) of the Constitution as contained in the judgment of Bello, J.S.C. in Attorney General of the Federation vs. Attorney General of Imo State and 2 Ors. (Supra). He said
"For the provisions of section 212(1) to apply:
(1) there must be a justifiable dispute involving any question of law or fact
(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 one in their capacities as members of the constituent units of the Federation; or
(c) between States in their aforesaid capacities, and
(2) the dispute must be one on which the existence or extent of a legal right of the Federal Republic of Nigeria or a legal right of a State in its aforesaid capacity is involved."
With this background, and having regard to the facts disclosed in the plaintiff's statement of claim could this suit come within the purview of section 212(1) of the Constitution? Or put more directly, can Ondo State invoke the original jurisdiction of this Court? I think not. I do not propose to set down the statement of claim of the plaintiff which runs into 33 paragraphs substantial parts of which have in any case been set down in the lead judgment of my learned brother. But a close study of them convinces me that there is in fact no dispute between the 1st defendant i.e. the Federation of Nigeria and the plaintiff. In fact the dispute such as there may be appears to be against the Federal Electoral Commission against which material allegations were made in paragraphs 16-22, 24, 25, 26 and 27 of the statement of claim and against which 13 of the 14 reliefs contained in paragraph 33 of the statement of claim were claimed. The material allegations against the 1st defendant were made in paragraphs 10-16, 25, 26 and 28 of the statement of claim and in effect are concerned with alleged interference by 1st defendant with functions which properly and constitutionally belong to the 20th defendant.
As for legal right, I am unable to see any legal right of Ondo State as a constituent unit of the Federation, which is injured or threatened. When pressed on this issue, learned counsel to the plaintiff, Mr. Fola Akinrinsola, identified the legal right of Ondo State as the duty of the State to ensure that there is free and fair elections and hence peace and stability. In paragraph 25 of his statement of claims he had averred as follows:
"25 By the totality of the 1st and 20th defendants' act/conduct herein complained of the plaintiff is aggrieved having regard to the fact that the constitutional and statutory obligations and the guarantee of independence of FEDECO under the 1979 Constitution and 1982 Electoral Act vis-a-vis the exercise of its duties functions and the discharge of its responsibilities are such that the 1983 general elections in Ondo State and in all the other defendant States of the Federation by Fedeco will not be free fair and impartial by reason of the aforementioned interference into the affairs of FEDECO by the 1st defendant and unlawful computerisation and other illegalities of FEDECO itself which interferences and illegalities unless declared null and void by this Honourable Court militate against the legal, constitutional, political and social stability of Nigeria".
There is no doubt that free, fair elections are most desirable objectives, but I find the plaintiff's paragraph 25 and the basis for its legal right as advanced by learned counsel to the plaintiff as rather vague and remote for purposes of bringing Ondo State within the purview of section 212 of the Constitution. It always has to be appreciated that Ondo State qua Ondo State is not a voter. If the rights of the voters in that State are breached there is no argument that any voter can bring an action in an appropriate court for remedy. Nor is there any argument about the right of the Attorney General of Ondo State to bring a relator action in an appropriate court on behalf of the public in Ondo State for the purpose of preventing public wrongs if any. (See Gouriet and Ors. v. Union of Post Office Workers and Ors. (1978) A.C. 435 and Attorney General v. Shrewsbury Bridge Co. (1880) 42 L.T. 79). We are concerned here, however, with the legal right of Ondo State for purposes of invoking section 212(1) of the Constitution.
Learned counsel to the plaintiff has urged this Court to approach the interpretation of section 212(1) of the Constitution with liberalism consistent with the approach it has adopted in interpreting the Constitution. While I agree with my learned brother Eso, J.S.C., that neither a liberal nor restrictive approach should be adopted in considering that section, I must nevertheless mention that in my view the original jurisdiction granted to the Supreme Court is expressly limited and ought not to be enlarged by judicial interpretation. While this Court has admittedly adopted a liberal stance in interpreting the constitution it has not abandoned the well-settled principle that each provision of the Constitution should not be interpreted in a way to defeat the purpose for which it was inserted. Besides, an interpretation such as learned counsel to the plaintiff urges on this Court, unless carefully watched, may lead to this Court being inundated with matters which ought not to come before it deflecting it from its true constitutional functions.
From all I have said above about the scope and meaning of section 212(1) of the Constitution it is obvious that FEDECO, 20th defendant, is not a State and cannot be brought within the purview of section 212(1) of the institution. As to whether the 20th defendant is in any case a necessary party I am content to wait as enjoined by my learned brother ESO, J.S.C.., for a proper case of joinder. I would say, however, in a brief answer to the contention of learned counsel to the plaintiff on this point that the cases he referred us to Attorney General of Ogun State v. Attorney General of the Federation (1982) 1 & 2 S.C. 42, Attorney General of Bendel State v. Attorney General of the Federation and 22 Ors. (Supra) etc. are not applicable. Not only is it true that the point was not specifically taken by this Court in those cases, but the other parties in those cases (i.e. parties which were neither the Federation and States) were parties in suits in which section 212(1) had been properly invoked there being a dispute between the Federation and a State or States.
In all these circumstances, the preliminary objection must succeed. I hereby strike out the plaintiffs claim. The order for costs is as contained in the judgment of Kayode Eso, J.S.C., hereinbefore mentioned.
UWAIS, J.S.C. I have had the privilege of reading in draft the judgment read by my learned brother Eso, J.S.C. I entirely agree with it. Accordingly I too will uphold the preliminary objection taken by the 1st and 20th defendants. The action is hereby struck-out for want of jurisdiction with no order as to costs.
Appearances
Mr.Fola Akinrinrinsola(with him J.Ogundobe and F.K.Agbaje ) For the Appelants
Mr. F.Nwadialo(Asst. Director of Civil litigation,Federal ministry of Justice) For the Respondents