Rethinking Application of Conflicting Orders of Federal and State High Courts – Carrington Osarodion Omokaro,

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The conflicting orders of the Federal High court, High court of a state or Federal Capital Territory may be likened to the High school scenario of a junior student whom in the room of Two senior students of same class is been ordered by one to leave the room while been ordered by the other not to move an inchOmokaro Carrington

There have been plethora of cases whereby the federal high court gives a ruling on an issue and moments later a high court of a state or federal capital territory gives a ruling which contradicts the ruling of the former. Conversely, cases have emerged where the high court of a state or federal capital territory gives an order in which the federal high court later gives a contradictory order. When such competitive encounter ensues, a lot of people most especially those who do not understand the constitutional provision for both courts seem to be on a limbo. Some are of the notion which is quite misconceived with due respect that an order of the federal high court supersedes an order of the high court of a state or federal capital territory irrespective of how the scenario is and I assume it is because of the word “Federal”. This notion coupled with what happens after the conflicting orders, is the crux of this Article.

It is worthy of note that the Federal High court, High court of a state and High Court of the Federal capital territory which can be likened to high court of a state, are Created by the constitution. Section 249(1) of 1999 CFRN states “There shall be a federal high court”. Section 255(1) of the 1999 CFRN provides that “There shall be a high court of the Federal Capital Territory, Abuja. Section 270(1) of the 1999 CFRN provides “There shall be a High court for each state of the federation”.

These Courts listed above have their respective Jurisdiction. Simpliciter it means each court has specific matters that the constitution has given them to hear and decide on. For instance, the federal high court may be empowered to handle matters involving companies while the high court of a state may be empowered to hand disputes involving land. So, when the state high court hears and determines a matter that involves companies, it would be said to lack jurisdiction and any decision reached would be a nullity. The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 is a LOCUS CLASSICUS (Best known) for that principle.

WHY THE FEDERAL HIGH COURT CANNOT BE SAID TO SUPERCEDE OR HAVE POWER OVER THE HIGH COURT OF A STATE OR FEDERAL CAPITAL TERRITORY

 For something to supercede another, it must be that its order or decision over rules the other. The term refers to the act of setting aside an order as void. The most relevant Constitutional provision which I opine emphasizes that both courts are of Co-ordinate Jurisdiction (Equal in Rank) is Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (C.F.R.N) which talks about the appellate jurisdiction of the Court of Appeal and it states thus;

“ 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, the National Industrial Court, the High court of the federation capital territory, Abuja, High court of a state, sharia court of appeal of a state, Customary Court Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”

The aforementioned words are in bold for emphasis. A careful and persistent perusal of the above makes the following obvious

  1. That the Court of appeal supersedes both the Federal high court, High court of a state or Federal Capital territory
  2. That the federal high court cannot seat on appeal over decisions of the High court of a state or federal capital territory and vice versa, which makes it visionable that both courts are of equal rank
  3. Decisions and orders from either the Federal high court, high court of a state or federal capital territory go to the court of appeal and upon hearing the issues brought by the respective courts, the Court of appeal has the Power to determine and give an order which all courts mentioned in the above quotation shall(must) abide by.
  4. That this power instilled in the Court of Appeal is only possessed by them due to the word “Exclusive” as no other court has the power to determine appeals from any other court other than the court of appeal.
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From the above analysis, I believe it is obvious and convincing enough that both courts do not supercede one another but have their respective jurisdictions. If the intendment of the draftsman was to make the Federal High court superior to the High court of a state or federal capital territory then in the quotation above, the placement of the FHC, SHC and FCT high court would not be where it is. Rather after the other wordings, they might be a proviso stating thus “Provided that the Federal high court shall to the exclusion of any other court have jurisdiction to determine appeals from the high court of a state or high court of the federal capital territory”. Unfortunately however, there is no such provision.

By the provisions of Section 250(3), 256(3) and 271(3) of CFRN 1999, A person is not qualified to hold office of judge or chief judge of the Federal high court, High court of the Federal capital territory and High court of a state respectively unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 10(ten) years. If truly, one superceded another then why make the requirement for number of years the same.

CONCURRENT JURISDICTION OF THE FEDERAL HIGH COURT AND HIGH COURT OF A STATE

It is apposite to note that though both courts have their different jurisdictions, there are matters which both courts can both handle without been said to lack jurisdiction. They are as follows

  1. BANKER- CUSTOMER RELATIONSHIP

Though banking issues that relates to coinage, legal tender, bills of exchange are exclusively for the Federal high court pursuant to Section 251(1)(d) CFRN 1999, the proviso in same section states however that the exclusivity shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.  So in such scenario where the proviso applies, instituting it at either court is okay. NDIC v OKEM ENTERPRISES (2004) 4 SC (PT 2) 77 is a good case law on such principle.

  1. Interpretation of the constitution

Pursuant to Section 295(1) of the constitution Where a substantial question of law arises in a proceeding in an inferior court, the court may suo motu or upon an application of a party to the proceeding, shall refer such question to the federal high court or a high court (which must be read to mean state high court) having jurisdiction in that part of Nigeria. Substantial question of law as held in the case of Okenwa v. Military Governor of Imo State (1996) 6 SCNJ 22 at 234 is a question of law in respect of which arguments in favour of more than one interpretation may be adduced.

  1. Fundamental right enforcement cases. See Order 2 rule 1 of the Fundamental Right enforcement procedure rule 2009 (F.R.E.P Rules)
  2. Pre-Election matters – See section 87(10) of the Electoral Act 2010.
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WHAT THE LATER RULING BY A COURT OF CO-ORDINATE DENOTES

In the words of EJIWUNMI J.S.C in the case of  N.I.M.B Ltd v U.B.N Ltd (2004) 12 NWLR (PT 888) 599 he stated thus

“Where a court was clearly aware that another court of co-ordinate jurisdiction is seised of a case with the same parties and the same subject matter before it as found in this appeal, it is an Abuse of process for that court to continue with the hearing of the case and proceed to make orders as was done in this case”

In that case, the appellants (N.I.M.B Ltd) needed to recover a sum of N101,598,144 been owed to them by the 2nd Respondents (West African Marine Products Ltd). 0n 31st July 1998, a Lagos state high court granted leave Sequel to an ex parte application to the appellants , to take possession of, remove and sell the entire stock fish stored in the cold room of the 2nd Respondents and further restrained the 2nd respondents, its agents servants and others from disturbing or preventing the appellants from taking possession and disposing the entire stock or intermeddling with the appellants possession or sale. On 10 August 1998 the 1st Respondent ( U.B.N Ltd) filled an Action at the Federal high court against the appellants in respect of the same fish for which the Lagos high court had ordered the appellants to sell. The prayer of the 1st respondents who were the plaintiffs in the suit instituted at the Federal high court was to restrain the appellants who were defendants in the suit, their servants, agents or privies from disturbing harassing or in any other manner whatsoever, interfering with the duties of receiver manager of the 2nd Respondent pending the hearing and determination of the motion on notice.

PATS-ACHOLONU J.S.C delivering the lead judgment stated thus

“It is my view that it will amount to a travesty of justice where the federal high court although no doubt has the competence to adjudicate on the matter that squarely falls within its jurisdiction but for some reason a state high court has already assumed jurisdiction on certain aspects of the case which had the potential to lead to abuse of the process of the court for the Federal High Court to intrude unobtrusively on the matter. In that case caution is thrown to the wind by the assumption of jurisdiction by the Federal High Court or for that matter any other court. That order made by the federal high court ought not to have been made, after its attention was drawn to the extant order of the Lagos High court”.

Before this case came to the supreme court , the court of appeal erroneously ruled that it saw nothing wrong with the act of the Federal high court. However, all the 5(five) justices of the supreme court in a unanimous judgment allowed the appeal of the Appellant.

In the case of PETERS v ASHAMU (1995) 4 NWLR (PT 388) 206, an Ibadan high court appointed the applicants as administrators of the estate of late Chief E.O Ashamu. The 1st respondent who had been restrained by the Ibadan high court from intermeddling with the estates or obstructing the applicants from the management of the estate, went to institute an action at the Lagos state high court, restraining the applicants from performing their functions as administrators. It was held that our constitution has shown that all appeals will end in the apex court i.e supreme court after passing through the crucible of the court of appeal (Subdivided into divisions for convenience of administration) and that whether the order of the oyo state high court has force or not over the properties of Chief Ashamu in Lagos, so long as the order subsists, there is reason why the Lagos state high court cannot be allowed to go on with the case in disregard of such order. It was further stated that the oyo state order will make the present action in Lagos High Court look Vexatious or an abuse of the process of the court. It can be inferred from the above  that even where a trial court erroneously assumed jurisdiction and went further to give a ruling, a subsequent order by the perceived rightful co-ordinate court cannot set aside the former order.

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WHAT THE LATER CO-ORDINATE COURT OUGHT TO DO, RECOMMEDATIONS AND CONCLUSION

 An Abuse of court Process refers to the improper use of Legal Procedure for malicious or perverse reason. The Abuse lies in the multiplicity and manner of exercise of the exercise of the right, rather than the exercise of the right per se. It involves multiplicity of actions on the same subject matter against the same opponent on the same issues and its aim is to harass, irritate and interfere with the administration of Justice – ONNOGHEN J.S.C

Once a court is satisfied that a proceeding is an abuse of court process, it has the power and duty to dismiss or strike it out – COMMISSIONER OF EDUCATION, IMO STATE v AMADI (2013) NWLR (PT 1370) 133 AT 151. Some have argued however that it is better to strike out than dismiss since the merits of the case have not been entertained. However, in the Locus Classicus of ARUBO v. AIYELERU (1993) 3 NWLR (PT 280) 126 AT 142, the supreme court held that the proper order a court should make when a suit is an abuse of court process is an order of dismissal and not striking out. See Also IDRIS v AGUMAGU (2015) 13 NWLR (PT 1477) 441 AT 480.

Conclusively, courts should jealously guard the orders of their fellow learned brothers in their various courts and take cognizance of pending applications already presented before fellow co-ordinate courts so as to avoid a situation of Mockery amongst courts of co-ordinate jurisdiction and give credence to the Grund norm (Constitution). Also, in the words of EJIWUNMI J.S.C supra “It is my humble view that in the instant case, the court is not only to blame, but the legal practitioner who instituted the actions that had brought about his unfortunate situation. I think it is desirable that our legal practitioners should counsel themselves not to institute such actions and persist in pursuing such proceedings that would result in the granting of conflicting orders by courts of co-ordinate jurisdiction as had occurred in this case”.

Carrington Osarodion Omokaro, Benin city, Edo State, Nigeria. Omokarocarrington@yahoo.com

REFERENCES 

  • PRINCIPLES OF CIVIL PROCEDURE IN NIGERIA – D.I. EFEVWERHAN 
  • THE NIGERIAN LAWYERS.COM 
  • CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

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