Sanusi’s Case: Where does Jurisdiction lie?

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Suspended CBN Governor, Mallam Sanusi Lamido Sanusi

This morning, I had the pleasure of viewing a debate between 2 highly esteemed learned friends on social media. The subject being discussed was the recent ruling by a Federal High Court that it had no jurisdiction to entertain the case filed by suspended Central Bank Governor, Lamido Sanusi, challenging his suspension by the President. The court decided that the National Industrial Court was the proper forum, as the matter appeared more employer/employee than anything else, and ordered the case to be transferred accordingly.

Now, jurisdiction is perhaps the most fundamental issue in litigation. It goes to the heart and validity of any case. Anything done by a court in respect of a matter in connection to which it has no jurisdiction is a nullity. My first learned friend argued, as she had stated since the suit was initially filed, that only the NIC had jurisdiction. My second learned friend argued that certain provisions of the constitution nonetheless vested the FHC with jurisdiction. My first learned friend disagreed. So, what does the constitution say?

First of all, let us examine the section of the constitution advanced by my first learned friend in support of her argument; Section 254 C, which states –

254 C- (I)      Notwithstanding the provisions of sections 251, 257, 272 and anything 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 National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)      relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

Is Sanusi’s suit in connection with employment? On the face of it, yes. Additionally, I emphasised certain keywords in the referenced section, whose importance you will see in the section of the constitution advanced by my second learned friend; Section 251, which states –

251(1) Notwithstanding anything to the contrary 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-

(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;

Is Sanusi seeking a declaration affecting the validity of an action or decision by the President/Federal Government? Yes, he is. So you see the conundrum here. Both 251 and 254 are literally notwithstanding each other and yet appear to have “exclusive” jurisdiction over the subject matter of this lawsuit.

I don’t envy judges. Additionally, I am confused and unable to pitch my tent with either of my learned friends. What do you think?

 

 

Injunctional Bias: Like Sanusi, Like Diezani?

 

With conflicting media reports, it is unclear whether or not the minister of petroleum resources, Diezani Allison-Madueke actually did it. However, there was news of her obtaining an injunction against the federal house of representatives, restraining them from investigating allegations that she spends considerable sums of state funds maintaining private jets for her personal use.

 

Now, mainstream social media (perhaps mainstream Nigeria, even) has a slight but very palpable anti-federal government bias. This may or may not be justified, but that is hardly the point. So, news of her having obtained this injunction has been greeted with derision at Diezani and frustration at the Nigerian judiciary. Watchers on the pro-government side of things have however pointed out what they perceive to be inconsistent criticism, as ousted/suspended/retired governor of the Central Bank, Mallam Lamido Sanusi, was congratulated when he obtained a similar injunction a few weeks ago. Are the Sanusi and Allison-Madueke injunctions one and the same? I do not think so. Why?

 

Well, according to information on its own website, the FRC “is a federal government agency established by the Financial Reporting Council of Nigeria Act, No. 6, 2011.  It is a federal government Parastatal under the supervision of the Federal Ministry of Industry, Trade and Investment. The FRC is responsible for, among other things, developing and publishing accounting and financial reporting standards to be observed in the preparation of financial statements of public entities in Nigeria; and for related matters.” The enabling Act also suggests that the FRC is strictly concerned with developing, setting and enforcing accounting financial reporting standards.

Does the FRC have the power to investigate for financial misappropriation? [CORRECTION] Hmmm. The enabling Act entitles the FRC to investigate “any complaint or dishonest practice, negligence, professional misconduct or malpractice, made against any professional.” The FRC also has the power to summon the professional being investigated. Who then is a “professional” for the purposes of the FRC Act? The Act seems to use “professional” interchangeably with “professional accountant” (see the sections on registration), so I would suggest that the FRC’s power to investigate is limited to professional accountants who have not conducted themselves properly in their audit/financial reporting. I do not think its powers of investigation of the FRC, as drafted, extend to investigating financial misappropriation. In any event, the courts will rule on whether the CBN governor’s suit against the FRC on the 12th of May.

 

So, in my opinion, Sanusi’s injunction was ostensibly to stop a federal agency from arrogating questionable powers to itself or overreaching itself. At the very least, the FRC’s power to investigate a CBN governor is questionable. Agreed?

 

On the other hand, the constitution establishes, unequivocally, that Houses of Assembly have the power to investigate (a) any matter over which it has power to make laws; (b) the conduct of affairs of any person or agency charged with administering its laws or disbursing money it has appropriated.

 

But the constitution does not stop there. It goes on to say that the foregoing powers are only exercisable for the purpose of enabling the National Assembly to (a) make or amend laws; and “(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”

 

Dear friends, does the National Assembly have the power to investigate allegations of corruption or misappropriation of funds against a minister of a federal government ministry in respect of which the Assembly makes laws and appropriates funds? I think so.

Is there any basis for courts to grant an injunction to restrain the National Assembly from investigating a minister? Oh yes! If their investigation is neither for the purpose of aiding the legislative process nor for exposing corruption, etc., then yes, the National Assembly would be acting outside its constitutional bounds.

 

Is this investigation concerned with exposing corruption and waste? The answer, my friends, is blowing in the wind…