The Impact of Constitutional Alterations on the Jurisdiction of the Supreme Court: Supreme Court’s Observation in Shittu Vs. PAN LTD Revisited

INTRODUCTION

The Supreme Court, per
Rhodes-Vivour, JSC in Shittu v PAN Ltd 2018 15 NWLR (pt 1642) 195, at
209-210, paras H-B, observed to wit

“I must observe that
there is now in existence the 1999 Constitution of the Federal Republic of
Nigeria as altered by the First, Second and Third Alterations Acts, 2010. By
the alterations, there is no longer Section 233(3) of the Constitution. That is
to say, the Supreme Court now can only hear appeals where the ground of appeal
involves questions of law. See Section 233(1) and (2) of the Constitution. The
Supreme Court no longer has jurisdiction to hear appeals where the ground of
appeal involves questions of mixed law and facts. Appeals on grounds of mixed
law and facts end at the Court of Appeal.”

This observation has raised
a lot of questions amongst practitioners of the law in relation to its blanket
nature. This article analyzes the observation of the Supreme Court with a view
to showing that the observation is too wide and that a holistic interpretation
of the Constitution particularly Section 233(1) and (2) reveals that the
Supreme Court can still exercise jurisdiction in relation to appeals on
questions of facts or mixed law and facts in certain instances.

IMPORTANCE OF JURISDICTION

Jurisdiction is the
lifeblood of any adjudication. The Courts have consistently held that the issue
of jurisdiction is intrinsic to adjudication. A Court cannot assume
jurisdiction to adjudicate in a cause or matter unless its jurisdiction has
been properly conferred and/or invoked. It is also settled law that any
proceedings conducted without jurisdiction no matter how well conducted and no
matter how sound the decision or orders made therein is a nullity. See the
cases of –MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341; DAPIANLONG V. DARIYE
(2007) 8 NWLR (PT. 1036) 332; A.-G., LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT.
111) 552; PETROJESSICA ENT. LTD V. LEVENTIS TECH. CO. LTD. (1992) 5 NWLR (PT.
244) 675.

SUPREME COURT’S JURISDICTION
– PRE ALTERATION OF THE JURISDICTION OF THE SUPREME COURT

The Supreme Court, like
other courts in the land, is a creation of the Constitution. It has its
jurisdiction specified and governed by the provisions of the Constitution. By
virtue of the 1999 Constitution, the Supreme Court is vested with both original
and appellate jurisdictions.
It has the sole authority and jurisdiction to entertain appeals from the Court
of Appeal. Section 233(1) of the Constitution confers exclusive jurisdiction on
the Supreme Court to hear and determine appeals from the Court of Appeal. The
right of appeal donated by the Constitution is further circumscribed by Section
233(2) to 233(6), as to when the right of appeal can be exercised as of right,
or with permission of the Court of Appeal or the Supreme Court.

Section 233(2) stipulates
instances when the right of appeal can be exercised as of right. Section 233(3)
prescribes when an appeal shall lie from the decisions of the Court of Appeal
to the Supreme Court with the leave of the Court of Appeal or the Supreme
Court. Subsections 4 to 6 of Section 233 regulates how the Supreme Court should
deal with the application for leave to appeal, who can exercise the right of
appeal conferred and the rules regulating the exercise of the right of appeal.

It is important to note that
Section 233(3) did not state that the Supreme Court could only grant leave to
appeal from the decision of the Court of Appeal when the ground of appeal
involves the question of mixed law and facts or facts alone. Section 233(3)
generally empowers the Supreme Court to grant permission to an aggrieved person
whose appeal does not fall within the decisions that could be appealed as of
right as enumerated in Section 233 (2).

SUPREME COURT’S
JURISDICTION- POST ALTERATION OF THE JURISDICTION OF THE SUPREME COURT

The seemingly settled state
of affairs in relation to the Supreme Court’s jurisdiction was altered by the
Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010.
By Section 6 of the Constitution of the Federal Republic of Nigeria (Second
Alteration) Act, 2010, the whole of Section 233 of the Constitution and section
24 of the First Alteration Act are “substituted” for a new
Section 233.

The new Section 233 provides
as follows:

233 (1) The Supreme Court
shall have jurisdiction, to the exclusion of any other court of law in Nigeria,
to hear and determine appeals from the Court of Appeal

233(2) An appeal shall lie
from the decisions of the Court of Appeal to the Supreme Court as of right in
the following cases-

1.
where the ground of appeal involves questions
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 this
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 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 the office of President or Vice-President under this
Constitution,
whether the term of office of President
or Vice-President has ceased
whether the office of President or Vice
President has become vacant
whether any person has been validly
elected to the office of Governor or Deputy Governor under this
Constitution,
whether the term of office of a Governor
or Deputy Governor has ceased,
whether the office of Governor or Deputy
Governor has become vacant; and

6. such other cases as may be prescribed by an Act of the National
Assembly.

From the above, it is clear
that by the Second alteration of the 1999 Constitution of the Federal
Republic of Nigeria, the leeway, by virtue of Section 233(3) to an
aggrieved party whose grounds of appeal involve facts or mixed law and facts,
is closed.

The Supreme Court’s powers
in Section 233(3) to grant leave to appeal has been taken away. This is what
led to the observation of the court as highlighted above that the Supreme Court
no longer has jurisdiction to hear appeals where the grounds of appeal involve
questions of mixed law and facts and that appeals on grounds of mixed law and
facts end at the Court of Appeal.

THE OBSERVATION OF THE COURT
ON ALTERATION OF THE JURISDICTION OF THE SUPREME COURT

While the observation of the
Honourable Court as mentioned above seems clear-cut, an in-depth analysis
suggests that it leaves room for multiple and possibly incorrect
interpretations. It is clear that an appeal shall lie from the decisions of the
Court of Appeal to the Supreme Court as of right where the ground of appeal
involves questions of law alone from decisions in any civil or criminal
proceedings before the Court of Appeal. But a fundamental question is whether
the deletion of section 233(3) from the Constitution means that the Supreme
Court has lost jurisdiction in all matters where the ground of appeal involves
questions of facts or mixed law and facts. The answer, with respect, is a
capital NO.

It is clear that paragraph
(a) of Section 233(2) of the Constitution confers a right of appeal as of right
to Supreme Court where the ground of appeal involves questions of law alone
from decisions in any civil or criminal proceedings before the Court of Appeal.
However, other matters for which an appeal may lie as of right to the Supreme
Court in subsequent paragraphs have the possibility of their grounds being not
just on the law but also on facts or mixed law and facts.

Let us consider Section
233(2) “C” as an example. Paragraph C states that “…An appeal shall
lies from the decisions of the Court of Appeal to the Supreme Court as of right
in the following cases: “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”. In this instance, it is possible for a ground of appeal to be
on mixed law and facts or facts in relation to a decision of the Court of
Appeal 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. If this is so, can the
Supreme Court decline jurisdiction on the basis that Section 233(3) has been
deleted? We answer this in the negative. This applies to the other matters
contained under section 233 (2) of the Constitution.

CONCLUSION

In light of the above, we
submit that while the observation of the Supreme Court is apt in relation to
matters not mentioned in Section 233(2) (b) to (d), it appears incorrect, with
respect, to the extent that the Supreme Court no longer has jurisdiction to
hear appeals where the ground of appeal involves questions of mixed law and
fact. It also appears incorrect to the extent that appeals on grounds of mixed
law and facts end at the Court of Appeal. This is because, in some instances,
the Supreme Court can still entertain an appeal on questions of mixed law and
facts or facts in limited instances as demonstrated above.

Nevertheless, alterations
and observation are commendable. The Supreme Court can seize the opportunity
provided by the alterations to decongest its docket. It is suggested that the
Supreme Court may, as of necessity, review all appeals before it and invite
parties, whose appeals are caught by the alterations, to address it on why such
appeals should not be struck out.