Home Constitutional Law II The Supreme Court of Nigeria-Composition-Jurisdiction-Court of Appeal

The Supreme Court of Nigeria-Composition-Jurisdiction-Court of Appeal

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Composition

The Head of the Supreme Court is the Chief Justice of Nigeria. The Constitution also provides that such number of Justices of the Supreme Court, not exceeding 21, as may be prescribed by an Act of the National Assembly may also be appointed. While the appointment of a person to the Office of the Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate. The appointment of a person to the office of a Justice of Supreme Court shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate. See the Constitution 1979:211 and 1999:230.

To be qualified for appointment to the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, such a person must be qualified to practice as a legal practitioner in Nigeria and must have been so qualified for a period of not less than 15 years. In case of a vacancy in respect of the office of the Chief Justice of Nigeria, or where the holder of that office is for any reason unable to perform the functions of that office, the President shall appoint the most senior Justice of the Supreme Court to perform those duties until a person has been appointed to such has resumed these functions or until the person holding the office has resumed these functions.

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five justices of the Supreme Court. But where the court sits to consider an appeal brought under section 213(2) (b) or (c) (1979) or 233 (2) (b) or (c) (1999) of the Constitution, or is to exercise its original jurisdiction in accordance with section 212 (1979) or 232 (1999) of the Constitution, the court shall be constituted by seven Justices.

Jurisdiction

Essentially, the Supreme Court is an appellate court. It however has power to exercise original jurisdiction in certain instances. It has original jurisdiction to the exclusion of any other court, to determine 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 (in which the existence or extent of a legal right depends. Furthermore, the  Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter. See the Constitution: 1979, Section 212 or 1999 Section 232.
In respect of the appellate jurisdiction of the court, it is provided that the Supreme Court shall have jurisdiction to the exclusion of any other court to hear and determine appeals from the Court of Appeal.

An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following instances:

  1. where the ground of Appeal involves a question of law alone,  decisions in any civil or criminal proceedings before the Court of  Appeal;
  2.  decisions in any civil or criminal proceedings on questions as to  the interpretation or application of the Constitution;
  3.  decisions in any civil or criminal proceedings on questions as to  whether any of the provisions of chapter IV of this Constitution  has been, is being or is likely to be contravened in relation to any person;
  4.  decisions in any criminal proceedings in which any person has  been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court;
  5.  decisions on any question whether any person has been validly  elected to any office under this Constitution or to the  membership of any legislative house or whether the term of  office of any person has ceased or the seat of a person in a  legislative house has become vacant; and
  6. such other cases as may be prescribed by any law in force in any  State.
Except as stated above, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.

The right of Appeal to the Supreme Court from the decisions of the Court of Appeal shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter, and in the case of criminal proceedings, at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to determine such proceedings, at the instance of such other authorities or persons as may be prescribed. In Ajomale v. Yaduat & Anor. (1991), the Supreme Court emphasised that in ordinary cases, it cannot exercise appellate jurisdiction over matters emanating other than from the Court of Appeal.

It should also be pointed out that the Supreme Court does not treat its decisions lightly. In Bronik Motors Ltd. v. Wema Bank Ltd. (1983), it was held that none of its decisions can be overruled by any of the lower courts. It will not depart from its decisions except three conditions are satisfied, namely: (a) on account of a broad issue of justice, or (b) policy or (c) a question of legal principle such that the retention of the decision would amount to a perpetuation of injustice.

The issue of jurisdiction of a court is very fundamental. A court that has no jurisdiction has no judicial basis for trying an action. In Bronik Motors Ltd. v. Wema Bank Ltd. (1983), the Supreme Court held that where a court has no jurisdiction with respect to a matter before it, the judicial basis for the exercise of any power with respect to such matter is also absent. This is because power can only be exercised where the court has the jurisdiction to do so. In the same vein, the Supreme Court held in Ajomale v. Yaduat & Anor. (No. 1) (supra) that:

“jurisdiction is not to be equated with powers.  Whereas jurisdiction is the right in the court to hear

and determine the dispute between the parties, the  power in the court is the authority to make certain orders and decisions with respect to the matter before  the court. This is clearly implied by the provisions of  section 6 of the 1979 Constitution which presented the  powers of the courts and in chapter VII on the  judicature ……….”

The foregoing discussion shows that before a court can exercise jurisdiction, the legal basis for assumption of power to try a case has to be established. While it is true that section 6 of the Constitution provides in general terms the basis for the inherent jurisdiction of the court, specific provisions in chapter VII state the extent and mode of exercising the jurisdiction conferred on each court through the blanket provision of section 6of the Constitution.

Court of Appeal

The Court of Appeal derives its existence from the Constitution. Thus the determination of the existence and power of the Court should be traced to the Constitution. This was also the view of the Court in Afribank (Nig.) Ltd. v. Caleb Owoseni (1995). In this case, the Court of Appeal held that “it is a well settled principle of law that the existence of appellate jurisdiction is entirely statutory. An appellate court derives its jurisdiction from the statute creating it and other enabling statutory power.”

Appointment

The Constitution makes provision for the establishment of the Court of Appeal. The court is made up of a president and such number of justices of the Court of Appeal not less than forty-nine, of which not less than three shall be learned Islamic personal law, and not less than three shall be learned in Customary law. See the Constitution: 1979 (Section 217) or 1999 (Section 237).

A president of the Court of Appeal shall be appointed by the President on the recommendation of the National Judicial Service Council subject to confirmation of such appointment by the Senate. Where there is a vacancy in the office of the president of the Court of Appeal, the President shall appoint the most senior Justice of the Court of Appeal to perform such functions, but such appointment shall not last for more than three months. A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years.

Jurisdiction

The Court of Appeal is as its name connotes. That is, it is an appellate court. In Iyimoga v. Governor of Plateau State (1994), it was held that section 6 (6) of the 1979 Constitution does not confer original jurisdiction on the Court of Appeal. Unlike the Supreme Court that has original jurisdiction as stipulated by section 212 (1979) or 232 (1999), the Court of Appeal is essentially a court to which appeals lie. This is the purport of section 219 (1979) or 240 (1999) of the Constitution. It states:

“Subject to the provisions of this Constitution, the  Court of Appeal shall have jurisdiction to the  exclusion of any other court of law in Nigeria, to hear  and determine appeals from the Federal High
Court, High Court of FCT, High Court of a State,  Sharia Court of Appeal of a State and Customary Court of Appeal of FCT, Customary Court of Appeal  of a State, and from decisions of a Court Martial or  other Tribunals as maybe prescribed by the Act of the  National Assembly.”

The jurisdiction conferred on the Court of Appeal may be invoked in one of two ways, viz: (a) as of right and (b) in some respect by leave of the Court of Appeal or the Court from which the appeal is to come to the Court of Appeal. An appeal shall lie from the decisions of a High Court to the Court of Appeal as of right in respect of the following matters:

  1. final decisions in any civil or criminal proceedings before the  High Court sitting at first instance;
  2. where the ground of appeal involves questions of law alone,  decisions in any civil or criminal proceedings;
  3. decisions in any civil or criminal proceedings on questions as to  the interpretation or application of this Constitution;
  4.  decisions in any civil or criminal proceedings on questions as to  whether any of the provisions of chapter IV of this Constitution  has been, is being or is likely to be contravened in relation to any person;
  5.  decisions in any criminal proceedings in which the High Court  has imposed a sentence of death;
  6.  decisions on any question whether any person has been validly  elected to any office under this Constitution, or to the  membership of any legislative house or whether the terms of  office of any person has ceased or the seat of a person in a  legislative house has become vacant:(i) where the liberty of a person or the custody of an infant is  concerned;(ii) where an injunction or the appointment of a receiver is granted or  refuse;(iii) in the case of a decision determining the case of a creditor or the  liability of a contributory or other officer under any enactmentrelating to companies in respect of misfeasance or otherwise; (iv) in the case of a decree nisi in a matrimonial cause or a decision in  any admiralty action determining liability; and(v) in such other cases as may be presented by any law in force in  Nigeria.

There shall be no right of appeal in respect of 
(a) a decision of any High Court granting unconditional leave to defend an action, (b) an order absolute for the dissolution of nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi and (c) except by leave of a High Court (Federal or State) or Court of Appeal from a decision of the High Court made with the consent of the parties or as to costs only.

Except as stated by section 220 (1979) or 242 (1999) of the Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal.

In exercise of the right of appeal in civil cases, the interested party shall or with the leave of the High Court (Federal or State) or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person, or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.

In Nigerian General Insurance Co. Ltd. v. Alhaji Y. Ola Ishola Bello (1994), it was held that by virtue of section 217 (1) of the 1979 Constitution (identical with Section 237 of the 1999 Constitution) and section 7 (1) of the Court of Appeal Act 1976, there is only one Court of Appeal and its territorial jurisdiction runs throughout the Federation. The division of the Court to various divisions throughout the country has been regarded as a matter of convenience for litigants and non- litigants. For effective performance of the duties relating to hearing and determination of cases brought before the Court of Appeal, Rules of Court have been made. This is in consonance with the powers conferred on the president of the Court of Appeal by section 227 (1979) or 248 (1999) of the Constitution.

An appeal shall lie from decisions of the Sharia Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide. By this provision, it means that the Sharia Court of Appeal can only decide questions of Islamic personal law. A right of appeal in this regard is exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter.

In similar terms, section 224 (1979) or 245 (1999) of the Constitution provides that an appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be presented by an Act of the National Assembly. In Golok v. Diyalpwan (1990), it was held that by the provisions of section 224 (1) of the 1979 Constitution (same as Section 245 of 1999 Constitution), there is only

one right of appeal to the Court of Appeal from the decisions of a State Customary Court of Appeal and that right is in respect of a complaint or ground of Appeal which raises a question of customary law alone. This section does not accommodate any complaint or ground of appeal which does not raise a question of customary law. It was further stated in this case that the intendment of the Constitution is that right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a state be one tier. In the words of Uwais J.S.C:

“It cannot, therefore be possible to interprete the  provisions of section 224 (1) which gives the right to  appeal by leave. To do otherwise will, in my  opinion, give a wide interpretation to the provisions of  the subsection which are clearly intended, in the  context of the Constitution, to have narrow meaning.”

The Court of Appeal has the right to hear appeals from decisions of the Code of Conduct Tribunal established by the Constitution. The Court of Appeal may also hear appeals from such other courts duly established by law. See the Constitution: 1979 Section 225; 1999: Section 246. In relation to the constitution of the court, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal, and in the case of Appeals from a Sharia Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Islamic personal law. In the case of a Customary Court of Appeal, if it consists of not less than three Justices of Appeal learned in Customary law.

The Court of Appeal is bound by the decisions of the Supreme Court of Nigeria: Enang v. Obeten (1979) and Adegoke Motors Ltd. V. Adesanya (1989). It is bound by its own previous decisions in civil cases: Osumanu v. Kofi Amadu and Kanada v. Governor of Kaduna State (1986). In the case of two conflicting decisions of its own, it may choose to follow any of its conflicting decisions: (Enang and Adegoke Motors Ltd. (supra)).

The Court of Appeal must do away with its own decisions where having regard to the decision it cannot stand vis-à-vis the decision of the Supreme Court (Enang v. Obeten) where the Court of Appeal is satisfied that its previous decisions was given per incuriam, it may refuse to follow the decision. In respect of criminal cases, it is not bound by its own previous decisions: Ganiyu Adisa Motayo v. C.O.P. In Enang v. Obeten, it was held that by reason of the hierarchical set up of Nigerian courts and by the dictates of the principles of judicial precedent, a Court of Appeal faced with conflicting decisions of the

Supreme Court is privileged to choose between such conflicting decisions in reaching its decision on a matter in controversy before it. It was also held in this case that a division of the Court of Appeal is not obliged to follow a previous decision of another division which has been adjudged to have been delivered per incuriam.

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