CRIMINAL JURISDICTION OF THE FEDERAL HIGH COURT: HOW EXCLUSIVE?

In a federal system of government, there is usually a division of executive, legislative and judicial powers between the central government and the government of the component units or states. Hence the judiciary in Nigeria can be generally divided into two, viz the Federal judiciary and the State judiciary¹. Courts of the Federal Judiciary include the Supreme Court, Court of Appeal, The Federal High Court, National Industrial Court, etc. On the other hand, State Courts consist of the High court of a State, Sharia Court of Appeal of a State, Magistrate Court, etc.  Asides from the Magistrate Court, all other aforementioned courts are superior courts of record^2..

The Federal High Court (herein after referred to as FHC), which is the subject of this article is arguably one of the most important courts in the federal judicial hierarchy. This is evident in the fact that it has 36 divisions, spread across the country.  It is however pertinent to note that there is only one FHC. For administrative convenience and ease of access, it is divided into various judicial divisions situated across the country. Thus, the principle of territorial jurisdiction does not apply to the FHC.

BRIEF HISTORY OF FHC

To better appreciate the importance of the FHC, a brief historical tracing is necessary. What we have today as the FHC was established by Decree No. 13 of 1973 as the Federal Revenue Court. Prior to its establishment, the State High Courts had jurisdiction to determine all federal matters and causes. However, the State High Courts delayed in the disposal of these matters, hence the Federal Government saw the need to establish the Federal Revenue Court. Elias C.J.N in Jammal Steel Structures V ACB³ observed:

“the true object and purpose of the Federal Revenue Court Act…is the more expeditious disposal of revenue cases…which the High Court have been too tardy to dispose of, especially in recent years”.

The Federal Revenue Court Act conferred exclusive original jurisdiction on the Federal Revenue Court in respect of certain matters including revenue of the Federal Government, Company matters, Custom and Excise matters, etc. With the promulgation of 1979 constitution, the court was restyled the FHC. In 1993, by virtue of Decree No 107 of 1993, the jurisdiction of the FHC was expanded beyond Federal Government Revenue related matters. Under the CFRN 1999, as amended, the FHC is established by section 249.

CONCEPT OF JURISDICTION

The Black’s Law Dictionary defined jurisdiction as the court’s power to decide a case or issue a decree. It is the authority which a court has to decide matters litigated before it or take cognizance of matters presented in a formal way for its decision. No court assumes jurisdiction except it is statutorily prescribed, as jurisdiction cannot be implied nor can it be conferred by agreement of the parties  to the suit. Where a court lacks jurisdiction, whatever it does is a nullity, however well conducted. In the locus classicus case of Madukolu V. Nkemdilim⁴ the position was succinctly captured that a court is only competent to exercise jurisdiction in any matter where;

§  It is properly constituted as regards number and qualification and no member is disqualified for any reason whatsoever

§  The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.

§  The case comes before the court by due process of law and upon fulfilment of any condition precedent.

JURISDICTION OF FHC

The jurisdiction of the FHC, both civil and criminal, is donated by section 251 CFRN 1999 and section 7 FHC Act. Section 251, CFRN states thus:

 (1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;

(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;

(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;

(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;

(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;

(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;

(h) diplomatic, consular and trade representation;

(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;

(j) bankruptcy and insolvency;

 (k) aviation and safety of aircraft.

(l) arms, ammunition and explosives;

(m) drugs and poisons;

(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);

(o) weights and measures:

(p) the administration or the management and control of the Federal Government or any of its agencies;

(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(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; and

(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may beconferred upon it by an Act of the National Assembly: Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.

(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.

The reason for the inclusion of section 251(2) is to prevent a reoccurrence of the situation in Mandara V. AGF⁵. There, the appellant was tried on 4 counts of offences of treasonable felony, inciting to mutiny and attempting to cause disaffection among members of the Armed Forces before the FHC and convicted on each count. On appeal, the appellant contended that FHC has no jurisdiction to entertain the criminal suit being an offence not arising from the civil jurisdiction of the court. The Supreme Court upheld this argument and allowed the appeal.

An important question that arises is whether the criminal jurisdiction of the FHC is exclusive. In other words, does the FHC have jurisdiction to try certain offences, to the exclusion of any other court? Learned authors have offered divergent views on this issue. According to one of the proponents of the exclusive criminal jurisdiction of the FHC, Kabiri-Whyte JSC (as he then was), section 8 FHC Act ousted the jurisdiction of other high courts in respect of causes and matters, either civil or criminal, in which the FHC has been conferred with jurisdiction⁶. On the other hand are the opponents, one of whom submitted that neither section 251 (2) nor (3) purports to confer exclusive criminal jurisdiction on the FHC. It is merely permissive and such jurisdiction is concurrently shared with the High Court of a State⁷.

The recent Supreme Court decision in Federal Republic of Nigeria V. Nwosu⁸ seems to have laid the matter to rest. In that case, the respondent was arraigned before the High Court of Lagos. On their arraignment, the respondents filed a preliminary objection, urging the trial court to quash the information preferred against them as same was incompetent and an abuse of court process. In a considered ruling, the trial court dismissed the preliminary objection. Dissatisfied with the ruling, the respondent appealed to court of appeal and argued that since the offence had to do with purchase of shares, it was a capital market matter. Furthermore, since the control of capital issues was within the exclusive legislative list of the National Assembly, the offence was therefore within the exclusive criminal jurisdiction of the FHC by virtue of section 251 (1) (s) CFRN 1999 and section 7 (3) FHC Act. The court of appeal upheld this argument and allowed the appeal.

The appellant was aggrieved with the Court of Appeal’s decision and further appealed to the Supreme Court. The Supreme Court described the Court of Appeal’s judgment as perverse and in an unanimous judgement, allowed the appeal. It held that by section 251 (3) CFRN 1999, the FHC shared concurrent jurisdiction along with other High Courts in criminal causes or matters. Also, the offence of stealing being alleged against the first respondent was created by a law of the Lagos Sate House of Assembly. The control of capital issue is merely incidental to the offence of stealing.

From the foregoing, it is clear the FHC shares its concurrent jurisdiction with the High Court of a State in respect of criminal matters arising from the matters listed in section 251 (1) CFRN 1999. However, pursuant to section 251 (1) (s) CFRN 1999, The National Assembly enacted certain laws that vests exclusive criminal jurisdiction on the FHC. Section 251 (1) (s) CFRN 1999 provides:

“Such other jurisidiction, civil or criminal and whether to the exclusion of any other Court or not as maybe conferred upon it by an act of The National Assembly”.

An example of such enactment is the Money Laundering (prohibition) Act 2011. Section 20 of the Act grants the FHC exclusive jurisdiction to try offences under the Act.

                                                                CONCLUSION

Certainly, the establishment of the FHC represents a step in the right direction of our long and arduous journey towards practicing true Federalism. Alongside the National Industrial Court, the FHC plays a significant role in the realization of our true economic potential and attraction of foreign direct or portfolio investment. The judiciary, as seen in FRN v. Nwosu appears to have settled the legal conundrum as regards the exclusiveness of the FHC’s criminal jurisdiction. 

FOOTNOTES:

1.      See section 6 (1) & (2) CFRN 1999

2.      See section 6 (3) CFRN 1999

3.      (1973) All N.L.R (pt.1) at 222

4.      (1962) 2 SCNLR 341

5.      (1984) 1 SDNLR 311

6.      Kabiri-whyte A.G “Federal High Court; Law and practice (Enugu: 4^th dimension publishing Co Ltd. 1986)

7.      Agaba J.A “Practical Approach to criminal litigation in Nigeria; 3^rd edition (2015) pg. 200

8.      (2016) 17 NWLR (pt. 1541) pg. 226

COLE, MICHAEL OLATUNDE

Partner, Equity Law Firm