Federalism is no doubt a good constitutional framework for countries comprised of several ethnic groups with different cultural and religious backgrounds and beliefs particularly when those beliefs run deep. It is particularly so for such countries whose political and administrative structures are still in their formative stages or have not crysatlised into strong structures that can absorb political shocks. Like every other human device, federalism has its own drawbacks one of which is the potential rivalry not only between the federating units but also between the Centre and one or more of the federating units. The rivalry between the Centre and the federating units is much more possible in developing political cultures and has even more deadly possibilities of being explosive in such settings.
Some of the characteristics of a weak political culture relevant to this discussion are: intolerance and dictatorial tendencies amongst the rulers and leaders of the people; timidity amongst the populace which allows the rulers to get away with so many wrongs; serious human rights abuses; anti-people policies which invariably elicit resistance in the long run however timid the people may have been, which resistance in turn leads to more human rights abuses; tribalism and sectionalism in the conduct of rulers, which promotes the same vices in the people and makes them view practically every action or
(formerly Okekeifere) LL.M; MClArb; Mediator & Arbitrator. World Intellectual Property Organisation, Switzerland; Member, London Court of International Arbitration; Partner, Okibe Lawhouse, (Legal Practitioners, Arbitrators) Port Harcourt, Nigeria; Studies Director, Centre for Arbitration Studies, Port Harcourt; Professor of Law, Ebonyi State University, Abakaliki, Nigeria. The author can be contacted at email@example.com
policy of government in the light of tribalism and sectionalism are prevalent in most African, Latin American and some Asian countries. Over time these vices desecrate even the hallowed institutions and principles without which the society cannot function, such as the judiciary and the administration of justice. These things indirectly lead in the long run to a rivalry – may be only subtle but no less dangerous – between Federal Courts and the Courts of the federating units. What is more, the Central or Federal Government may begin to prefer federal Courts to Courts of the federating units in the adjudication of any matter that touches on the interest of the Centre. This is done with a hope (which may not be entirely false all the time!) that the Federal Courts will be more sympathetic to the Federal or Central Government than the Courts of the federating units, and vice versa. The ordinary people with time begin to follow suit in what simply amounts to forum shopping as it were. Should the trend be allowed to continue then ultimately justice and the judicial system run the risk of destruction.
Nigeria as a federation typifies the weak structures and conflicts referred to above It has also in recent times taken human rights questions serious y, even if sometimes only in theory.1 It has not only consistently provided for human rights in its Constitutions2, it has also easily acceded to important human rights Conventions etc.3 Practically every known aspect of human rights enjoyable by the citizens of any country are provided for in the 1999 Nigerian
1 We talk of theory because much as profuse legal provisions were readily put in place, the rulers in the drawn out military dispensation had a penchant for abusing those rights o’ individuals, which is one reason for the multiplicity of cases and principles and the attendant confusion in the subject matter of this work.
2 They constituted Chapter 3 of the 1963 Constitution, Chapter 4 of the 1979 Constitution and the 1999 Constitution.
3Nigeria was, for instance, a foundation member of the African Charter on Human and People’s lights (hereinafter “the African Charter”). It has already been domesticated into Nigerian law as the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, cap. 0, Laws of the Federation of Nigeria, 1990.
Constitution, just as in the 1979 Constitution, in one form or the other.4 The fact that they are enshrined in the Constitution has ensured that they are not to be taken lightly. In fact, they not only take precedence over all other provisions and rules on similar maters, they form the bedrock for the enthronement of the rule of law and are a yardstick for the measurement of a true democratic culture.5
A thickly populated and vibrant non-governmental human rights community also exists in the country. In fact, the Civil Liberties Organisation founded by a Nigerian lawyer, Mr Olisa Agbakoba, SAN more or less pioneered non-governmental human rights movement in Africa. There are several others like the Constitutional Rights Project as well as individual icons and activists like Chief Gani Fawehinmi, SAN and Mr. Agbakoba himself whose individual efforts aside their corporate efforts under the umbrella of associations have been of monumental benefit to the human rights movement and the citizenry generally. The Nigerian Bar Association under the leadership of such people as Chief Alao Aka-Bashorun has also at different times been a vibrant human rights watchdog.
These organisations and persons have uncompromisingly fought for the citizens’ constitutional/human rights even against totalitarian military governments that would brook no opposition but whose unpopular policies and dispositions invariably elicited resistance.6
4They are the rights to life (s. 33), to dignity of human person (s. 34) to personal liberty (s. 35), to fair hearing (s. 36), to private and family life (s. 37), to freedom of thought, conscience and religion (s. 38) to freedom of expression arid the press (s. 39), to peaceful assembly and association (s. 40), to freedom of movement (s. 41), to freedom from discrimination (s. 42), to acquire and own immovable property anywhere in Nigeria (s. 43) and the right to protection against illegal compulsory acquisition of property (s. 44). Among; t other modes of classification (such as 1st, 2nd and 3rd generation rights), they can be grouped into classes i.e. the procedural and self-directing variants. The procedural rights are those dependent on other rights (fundamental or not) or which only arise and are to be observed when another right has first been breached, such as the right to fair hearing. The self-directing variety consists of those redness for the breach of which can be sought by initiation of a substantive Suit such as the right not to have one’s property illegally acquired, or compulsorily acquired without appropriate compensation. Se Dr JU Achebe & Anor v. Chief Dona Nwosu & Anor (2003) FWLR (pt. 136) 891. CA; Nemi v. State (1994) 19 SCNJ 1.
5Samuel Tor Akutega v. Benue State Civil Service Commission & Anor (2002) FWLR (pt. 123) 255. CA.
6 Such policies as the Structural Adjustment Programme of the Babngida dictatorship, the brutal state murder of the late environmentalist, Ken Saro-Wiwa, the seif-su cession bid of Gen. Sani Abacha, and the cruel hikes in the pump price of petroleum products by the present civilian government. Against these oppressive policies* the organisations, sometimes in concert with or through the Nigeria Labour Congress organised rallies and protests or went to Court.
Those activists have organised enlightenment seminars and workshops, rallies and protests on human rights and related political questions7 and instituted innumerable Court cases against successive governments on practically every issue of importance for the protection of citizens’ rights8, even outside Nigerian domestic Courts.9 The Courts have also played a commendable role by taking firm stands against the violations of citizens’ human rights even when the violation was by the totalitarian military dictators, at great personal costs and risks to the judges. The enforcement of fundamental rights has therefore become a very vibrant branch of legal practice in the country.
As already pointed out, the dangers of federalism in a weak political culture can all be found in Nigeria and how things work in the country can be an instructive example for other countries, particularly developing countries, who have or could engender similar factors in their jurisdictions. In the enforcement of fundamental human rights, for instance, the 1999 Constitution has tried to uphold federalism by creating a dichotomy between federal and state Courts with respect to jurisdiction to entertain human rights cases, but in doing that has created confusion. Section 251 makes suits involving
7 Such as the need for a restructuring of the Federation.
8 Chief Gani Fawehinmi alone is reputed to have filed and pursued about 1000 cases for himself and for others against successive governments since 1966 on human rights and related questions. In the process the Courts were afforded opportunities to deliver very many landmark judgements that have helped to cjrow the Nigerian law in several facets, such as Gen. Sani Abacha v. Chief Gan Fawehinmi (the provisions of the African Charter on Human and People’s Rights as domesticated in Nigeria by the African Charter on Human and People’s Rights Act cap 10, Laws of the 7ederation of Nigeria, 1990 and mutatis mutandis all other treaties and Conventions a member of which Nigeria is and all domestic legislations domesticating them in Nigeria – without which domestication they would not have any binding effect of law in the country by virtue of s. 12 of the Constitution – are subordinate to the Constitution and cannot override it); Chief Gani Fawehinmi v. Inspector-General of Police (2002) FWLR (pt. 108) 1355 (an incumbent Executive Governor (or President etc) is not above the law and though immune from civil and criminal proceedings while in office (under s. 308 of the Constitution) is not imm from police investigation while in office and information gathered from such investigation can be used to prosecute him later; Chief Gani Fawehinmi v. Gen Sani Abacha (2000) FWLR (pt..) (some new principles of bail pending trial).
s They have as often as necessary dragged Nigerian governments before the African Commission. Nigerian NGOs seem to have file I the highest number of cases before the Commission so far
filed against any one country. Examples have been Civil Liberties Organisation v. Nigeria, hirtieth Activity report 1999 – 2000, Annex V paras 22 – 34; International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro_wiwa Jr. and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998 – 1999, Annex V (Documents of the African Commission, p. 729) para 83; Constitutional Rights Project v. Nigeria, ibid p. 712 paras 57 and 58.-
the Federal Government, its agencies and agents the exclusive preserve of the Federal High Court while s.46 confers jurisdiction on “a High Court in a State where the infringement took place” for the enforcement of the guaranteed human rights The Courts have expectedly had difficulties reconciling these prc visions and in the process delivered very conflicting judgements. Though the Supreme Court has recently tried to lay the serious controversy to rest10 a serious difficulty still exists in the matter. The Courts have also had to recognise a dichotomy between applications or Suits where the human rights claim is the major claim and those where the claim is only ancillary, as determining whether the claim should be countenanced by the Courts under the Fundamental Rights Enforcement Rules, 1979 (“the ‘ 979 Rules”) or not. In the process they have, through diverse and hardly reconcilable declarations on the point, also engendered a confusion as to which modality a Plaintiff in a human rights Suit or Application must adopt. While some have said he must come under the 1979 Rules others have said he can come by any procedure whatsoever recognised as a mode of instituting Actions in the High Court. A question as to whether or not the 1979 Rules, should still be applicable under the 1999 Constitution is also threatening to assume importance amongst practitioners12 and needs to be laid to rest.
This article surveys these questions and proffers what in the writer’s opinion are the proper legal solutions. It firs: examines some preliminary issues, then the issue of jurisdiction as between the Federal High Court and State High Courts, and thereafter the issue of modality for enforcement of rights. Under the latter the dichotomy
10In such cases as Grace Jack v. University of Agriculture, Makurdi (2004) All FWLR (pt. 200) 1506.
11Made by the Chief Justice of Nigeria by virtue of powers vested in him by s. 42(3) of the 1979 Constitution. Section 46 (3) of the 1999 Constitution is similar. More on these later.
12 See. for instance. U.U. Chukwumaeze, Enforcement of Fundamental Rights Under the 1979 Rules – A Wrong Procedure (2001) LASU LJ 96 (that the Rules Is no longer applicable) and B.E.I. Nwofor Esq, The Urgent Need for Certainty or Clarity in the Law on the Proper Mode of Commencement of Action for the Enforcement of Fundamental Rights in Nigeria, paper presented at the Christian Lawyers Fellowship of Nigeria (CLASFON) 2002 National Conference Port Harcourt, 16″ August, 2002 (that it is still applicable).
based on the question of whether a fundamental rights claim is the major or ancillary claim in the Suit is examined and its continued application is canvassed. The article finally surveys the issue of continued applicability of the 1979 Rules and canvasses the view that from whatever angle the matter is viewed the Rules is stil! in force and will continue to be even if the 1999 Constitution itself is subsequently jettisoned, so long as human rights are constitutionally secured and a provision like the present s.46 (3) [the former s. 42(3)] is retained.
A. Preliminary Matters
Nigeria is a federation with a particularly strong Centre, and weak federating units or states13 and has normally had written Constitutions with elaborate provisions. The overbearing strength of the Centre and weakness of the States was designed by past military governments as a purported solution to the mutual fears and suspicions against each other by the 250 nations that make up the country, but the uneasy relationship under the present civilian government and the unanimous and incessant calls for a fundamental restructuring of the polity by all the language groups particularly in the Southern and North-central geopolitical zones clearly show that the arrangement was never a proper solution.
Despite its retention and strengthening of an overbearing Centre the 1979 Constitution, which preceded the present one, at s. 236 vested a State High Court with an “unlimited jurisdiction” to hear and determine “any civil proceedings in which the existence or extent
13The Constitutions of 1960, 1963. 1979 and 1999 each had as one of its Schedules a very long Exclusive Legislative List constituting of matters over which only the Federal Government had or has power of control and legislation. In fact the Centre is so strong that unlike in many other federations the federating units (States) have no police of their own and have no control or ownership rights whatsoever over natural resources found within their geographical boundaries. The Federal Government does not only own and control all natural resources under s. 44 (3) of the 1999 Constitution it takes the lion share of all revenues accruing to the country while the State and Local Government Councils share the left over as it were. For a consideration of these matters, see the writer Domestic Issues of Law, Power and Justice in State Ownership and Control of Natural Resources in Developing Political Cultures: New Perspective in Nigeria forthcoming in the Port Harcourt Bar Journal.
of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue”. The Federal High Court had a very limited jurisdiction which covered only matters related to the revenue of the Federal Government14 Even with respect to those matters it did not have exclusive jurisdiction and the State High Court retained a concurrent jurisdiction over such matters.15The question as to whether or not it could entertain any form of fundamental rights question involving any person whomsoever did not arise. In fact, the State High Court was the preferred venue as the jurisdiction of the federal High Court under s.7 of the Federal High Court Act and s. 230(1) of the Constitution did not specifically include human rights Suits and applications. This ensured that whoever was the perpetrator of a fundamental right violation and whoever was the victim the dispute could be, and indeed normally was, taken to the State High Court. It was difficult to find any fundamental rights dispute that was taken to the Federal High Court. In fact, in Mr Aka-Bashorun & Anor v. Wing Commander Mohammed & Anor16, the Court of Appeal held that the jurisdiction of the Federal High Court was constitutionaliy defined and restricted to such matters as were connected with or pertaining to the revenue of the government of the Federal and that the Court was therefore incompetent to entertain any application concerning the enforcement of fundamental rights. This was the popular view even though in strict law the better view was that under s. 42 of that Constitution (the present s.46) the Federal High Court had a concurrent jurisdiction with the State High Court in enforcement of fundamental rights smatters if those matters were inextricably connected with matters over which it had jurisdiction under s.7 of the Act.17
14Under s. 7 of the Federal High Court Act, cap F12 Laws of the Federation of Nigeria, 2004. Formerly the Federal Revenue Court Decree, 1976 under which the Court was called the Federal Revenue Court.
15As clearly and firmly held by the Supreme Court in such cases as Bronik Motors Ltd. v. Wema Bank (1983) 6 SC 158; 1 SCNLR 296.
16 (1991) 1 NWLR (pt 168) 523.
17 Alhaji Lawan Zakari v. IGP & Anor (2000) 8 NWLR (pt. 670) 666. CA; HRH Obol Ubi & 4 Ors v. Mr. Macus Ukoi (2002) 4 NWLR (Pt. 773) 563; Okoroma v Uba (1999) 1 NWLR (pt. 587) 359.
The seed for the present position and its difficulties or controversies seemed to have been sown by the Court of Appeal in Senate of the National Assembly v. Prince Tony Momoh where it held that the implication of the federal principle was that a person wishing to enforce a fundamental right against the Federal Government, an arm or authority of that government should go to Federal High Court whereas a person wishing to enforce such a right against a State government needed to go to the High Court of the State. With all due respects, the decision was under that dispensation, hardly justifiable. The federal structure as then practiced was only to be found in the Constitution of the time and since that Constitution did not vest jurisdiction, much less so an exclusive jurisdiction, over human rights questions on the Federal High Court whether or not the dispute involved the Federal Government or its agencies (save as same arose inextricably from any of the federal revenue matters over which that Court had jurisdiction) it was erroneous for the Court of Appeal to confer such a jurisdiction by a wave of the hand.
Be that as it may, the 1999 Constitution at s.251 (1)(q) and (r) vested in the Federal High Court exclusive jurisdiction over some matters in the following words,
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it 6y 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-
(q) subject to the provisions of this Constitution, the operation and interpretation of the 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
18 (1983) 4 NCLR 69.
affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National assembly.”
A proviso to subsection (s) assures that, nothing in the provisions paragraphs (p), (q) and (r) of the 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.”19
The State High Court, going by a literal interpretation of the provision, cannot entertain any cause or matter of these descriptions ether than criminal cases over which, by the provisions of subsections 2 and 3 the Federal High Court does not have exclusive jurisdiction, it goes without saying then that the bulk of human rights violation cases prima facie now belong to the Federal High Court. Added to the prohibitory clear language of the section there is also a principle in Nigerian law to the effect that inherent jurisdiction of any Court strictly flows from only to compliment (i.e. to make explicit), and by no means outside, the jurisdiction expressly conferred by statute or to add thereto (i.e. in any material or substantial way) which means that with respect to such causes and matters a State High Court can hardly rely on inherent jurisdiction to attempt any exercise of jurisdiction.
As already stated, having these clear provisions along with the
19Which the Court of Appeal has interpreted as conferring concurrent jurisdiction over matters listed in the subsection on the State High Court and the High Court of the Federal Capital Territory Nigeria Deposit Insurance Corporation v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR 756: Chief Chika Okator & Anor v. Alhaji Tijani Hashim & 2 Ors (2000) FWLR (pt. 16) 2847. With all due respects, the decision is difficult to support. All that the proviso has done is to preserve the principle that the State as represented in that section by the Federal Government is not immune from Suit.
20As established in such cases as Adigun v. A-G. Oyo State (1986) 2 NWLR (Pt. 56) 197. 229; Chief Gani Fawehinmi v. Cot. Halilu Akilu (1989) 3 NWLR (pt. 112) 643, 660-671; Ezeonu v. Agheze (1991) 5 NWLR (pt. 187) 631, 648; Adigun v. Governor. Osun Slate (1995) 2 SCNJ 1; CCB Pic v. Masterpiece Chemicals Ltd (2001) FWLR (pt. 39) 1423. 1437.
wording of s 46 has generated confusion and difficulties with respect to the extent of the jurisdiction of each of the State and Federal High Courts and the interplay and overlapping of these jurisdictions. There is also the issue of how this dramatic enlargement of the subject- matter jurisdiction of the Federal High Court not backed up by infrastructural and equipment arrangements plays out in practice.21
It is also necessary to point out here that even under the 1979 Constitution the Courts have since held that the High Court of the Federal Capital Territory is not to be regarded as a Federal High Court but is rather in the same class with a State High Court.22This is clearly in keeping with ss. 255 – 259 of the 1999 Constitution which, like s.261 of the 1979 Constitution, clearly treats that Court as a State High Court. This means that the Court’s jurisdiction is limited in the same way in favour of the Federal High Court as the jurisdiction of a State High Court23 and that Court too cannot assume jurisdiction over human rights Suits which by the operation of s. 251 fall under the jurisdiction of the Federal High Court. The Constitution in several ways also treats the Federal Capital Territory (Abuja) as if it was a State. In treating the Capital Territory and its High Court in that way, the Constitution created yet another problem which the recent Supreme Court judgement in Attorney-General of the Federation v. Attorney-General of Abia State & 35 Ors24 sought to correct but in turn created more problems with respect to the interplay of High Court statuses and jurisdictions in the country. The Court effectively and befittingly struck the FCT down from that exalted and unnecessary status of a State.25
21For more on all these issues see this writer in Parading Wishes as Horses: The New jurisdiction of the Federal High Court (‘forthcoming) and in Salient Issues in the Law and Practice of A titration in Nigeria (2006) 14 radio (African Journal of Int. & Comp. Law, UK)1.
22 Chief Chika Okafor & Anor. v. Alhaji Tijani Hashim & 2 Ors note 19 supra.
23 In fact, s. 257(1) of the Constitution makes the jurisdiction of the High Court of the Federal capital Territory “subject to the provisions of section 251 and any other provisions of this Constitution”.
24 (2002) FWLR (pt. 102) 1
25 For more on these matters (including the clumsy situation the High Court of the Federal Capital Territory now finds itself as being neither the Federal High Court nor the High Court of a St; b in a federal set up like Nigeria) which are outside the scope of this work see this write- Parading Wishes as Horses: The New Jurisdiction of the Federal High Court note 21 sue
B. Jurisdictions of the High Courts
As already stated, the 1999 Constitution in conferring exclusive jurisdiction on the Federal High Court in so many matters out of which fundamental rights cases could arise while at the same time retaining s 46 in the very words in which it appeared in s. 42 of the 1979 Constitution, has not engendered utmost clarity of law. The conferment of exclusive jurisdiction was done in very absolute terms. In fact, the phrase “subject to the provisions of this Constitution” which prefaces s. 251 is of no consequence because no provision of the Constitution seems to have any qualifying effect on the section. Many cases of human rights abuse involve the police, the armed forces and the State Security Service (SSS). These are all agencies of the Federal Government, so that in reserving jurisdiction over all matters concerning “the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies” and “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” for the Federal High Court, the section effectively set out to keep the bulk of human rights Suits in that Court.26
It may be necessary to point out right away that no problem exists with respect to the jurisdiction of the appellate Courts. The states have no courts of appeal competent to hear appeals from the High Courts whether or not the High Courts are state or federal Courts. The Constitution at s. 231 creates only one Court of Appeal for the country and one Supreme Court at s. 230. Under s. 240 the Court of Appeal has “jurisdiction to the exclusion of an / other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State while s. 233 confers the Supreme Court with the
26 At s. 251 (1) (r) and (s) supra. The provision appeared for the first time in Nigerian law in the Constitution (Suspension and Modification) Decree No. 107 of 1993, which copied into Nigerian Constitutional Law the judicial aspect of American federalism but without considering the absence in Nigeria of the infrastructures and political maturity obtainable in America.
exclusive jurisdiction to hear and determine appeals from the Court of Appeal. In fact, the Constitution forecloses the right of any state as a federating unit to establish a Court of Appeal of its own unlike the position under the 1960 and 1963 Constitutions, under which the then Western Nigeria established a Court of Appeal for itself, and which is the position in some other federations such as the USA.
Expectedly, cases have arisen on whether or not the Federal High Court is actually the only appropriate forum for the hearing and determination of such Suits in the light of s. 46. The Court of Appeal has delivered divergent judgments on the point, which are calculated to confuse. Before examining them however it may be necessary to point out right away that where an allegation of a fundamental right breach is only ancillary and the major issue or claim in the Suit is an issue or claim outside the jurisdiction of the Federal High Court then that court can neither entertain the Suit as a whole, nor can it hear and determine the ancillary fundamental right question and strike out the other (major) claims It must totally decline jurisdiction. In Alhaji Umaru Abba Tukur v. Government of Gongola State?7 the Plaintiff was deposed from office as Emir of Muri, placed under house arrest for 32 days and subsequently banished to Mubi, where he spent another 187 days in detention. He instituted an Action under the 1979 Rules in the Federal High Court. The Court declined jurisdiction with respect to the chieftaincy issues, which were the main issues but heard the fundamental right issues and awarded N6m with respect thereto. The Court of Appeal held that the High Court had no jurisdiction even over the fundamental right questions, which decision was affirmed by the Supreme Court. The Supreme Court stressed that since the Federal High Court had no jurisdiction over chieftaincy matters that constituted the main claims it could not adjudicate on the others.28 Obaseki, JSC declared at p. 547 of 1he report,
27 (1989) 4 NWLR (pt. 117) 517, SC.
28 For more on these matters see Part C(ii) infra.
“In the instant appeal, all the breaches of the fundamental rights alleged flow from the deposition of the appellant from the office of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office and the deposition of the Emir is a chieftaincy question which only a State High Court has jurisdiction to determine. The appellant in my opinion, is directly complaining by his claim or relief claimed and affidavit evidence that his civ 5 rights as a chief have been breached and that in the process, his fundamental rights of fair hearing, liberty and freedom of movement have also been breached. His claim for an order to quash the order of deposition and restoration to the office is a relief the Federal High Court has no jurisdiction to entertain. It is only the High Court of Gongola State that has jurisdiction to grant the relief. Since the Federal High Court does not have jurisdiction to quash he order of restoration of the appellant to his office of Emir of Muri, the jurisdiction to enforce the fundamental rights of fair hearing, liberty and movement of appellant vests only in the High Court of Gongola State in the matter”.29
Another point which seems clear from the authorities is that though the armed forces is one (federal) entity over which the Head of the Federal Government is Commander-in-Chief, a Military Governor or Administrator of a State (obtainable in Nigeria under-military regimes) was not an agency of the Federal Government. Therefore if he was a party to a fundamental right Suit that alone would not raise any question on the jurisdiction of the State High Court to entertain the3 Suit. In fact, that Court alone would have jurisdiction. It would be so even if the occupant of that office was c Commissioner of Police who, if he was not an Administrator or Governor, would ordinarily qualify respectively as an agent or agency of the Federal
29 At p. 547 C – E
Government in his personal or official capacity as the case may be.30 The Court s have rested this on the proposition that under s.2 of the 1979 Constitution as amended, separation of powers between the Federal Government and a State Administrator was clearly provided for. The correctness of this position particularly in the light of what normally happened in practice between the Federal and State Governments under a military regime is debatable31 but the policy considerations are understandable. Were Military Governors and Administrators to be regarded as agencies of the Federal Government then practically all rights enforcement Suits would go to only the Federal High Court all the divisions of which would get terribly congested.
In the present democratic dispensation the issue does not arise at all because, defective as the Nigerian federation may be, a State Government is under ss. 192 -196 of the 1999 Constitution., by no means an arm or agency of the Federal Government. The Federation and its constituent states are, but for matters in the Exclusive Legislative List upon which the Federal Government alone can legislate for the entire country32 more or less independent entities. Even where the Federal Government and the government of a particular state are controlled by one party it is not a reason to expect the Executive Governor of that State to be an errand boy or agent of the Federal Government in the sense meant in the context.
The Kaduna and Jos Divisions of the Court of Appeal are at one on the position that the Federal High Court has no jurisdiction or at least no exclusive jurisdiction over fundamental right enforcement cases simply because the Federal Government or any of its
30 Police Commissioner Amen Oyakhire v. and 3 Ors v. Alhaji Mohammed N. Jen (2000) FWLF (pt. 20) 699. See also Kwara State Government and Ors v. Gadlar (1997) 7 NWLR (pt. 511) 64
31 State governments were normally mere offshoots of the Federal Government. The country, was a unitary star under military regimes and there was hardly a semblance of federalism r practice. In fact, the State Administrators or Governors were normally direct appointees of the Commander-in-Chief and were more subservient junior officers than the Chiefs of Army, A and Naval Staff, who were by all means agencies of the Federal Government.
32 Such things include defence matters, currency, citizenship: Exclusive Legislative List, Second Schedule to the 1 199 Constitution.
agencies is a party. In Oyakhire Court of Appeal, Jos Division after determining that the Military Administrator of Taraba State was not an agency of the Federal Government took the view that the Suit in question could not be entertained by the Federal High Court Jos since the entire transaction took place in Taraba State. It adapted a literal interpretation of “a High Court in that state’ in s.42 of the 1979 Constitution33 to mean a Court within the geographical boundaries of the state and quoted copiously from the judgment of Obaseki and Oputa, JJSC respectively in Tukur Government of Gongola Stater4 thus,
“… but the provision of section 42(1) of the 19791 Constitution specifically empowers any person complaining of contravention of the fundamental rights provision in relation to him in any state o apply to a High Court in that State.
The constitution does not provide for any application to be made to a High Court sitting outside the State.”35
“The Federal High Court Kano, cannot be a “High Court in that State” which was envisaged by s. 42(1) above. Even if the jurisdiction of the Kano Judicial Division of the Federal High Court, extends to and includes Gongola State, the Kano Federal High Court cannot, without undue violence to the plain meaning of words, be described as a” High Court in that state” namely High Court in Gongola State.36
What such cases have left undecided is whether or not the Plaintiff can apply to the Federal High Court if a Judicial Division of that Court is physically present in the territory of the State in question. For instance if Mallam Adamu resident in Kano has his rights infringed in Kano can he apply to +he Federal High Court, Kano? On a plain reading of the words “a High Court in the t State”, it seems
33 Section 46 of the 1999 Constitution.
34 Note 27 supra. See also Kwara Slate v. Gadfar note 30 supra.
35 Page 717 F
36 Page 717H
rather obvious that he can. Such a construction agrees with the progressive, expansive spirit with which Nigerian constitution?.1 provisions are to be approached37 even though it would create a little policy problem. The problem will be that whether or not the Federal High Court has jurisdiction over a fundamental rights matte would depend not on the substance of the matter but on mere geographical cum administrative issue of whether or not the Federal High Court actually sits in that State. Thus though Adamu can sue in the Federal High Court Kano in the example above he cannot (and the Federal High Court therefore lacks jurisdiction) if he lives Katsina or Jigawa. Undesirable as that situation would seem, it is inevitable in the circumstances since the framers of the Constitution seemed to have failed to be mindful of the fact that the jurisdictional relationship of the State and Federal High Courts were now different under this Constitution and adopted that phrase verbatim from the 1979 Constitution. What the position translates to is simply that until a judge of the federal High Court sits in a State, fundamental rights questions in that State should go to the State High Court of the State. A contrary construction may do violence to the words of the Constitution It is this writer’s view that if a contrary meaning was intended “a High Court in that State” would have been rendered as “the High Court of that State”.
Another stream of cases have canvassed the view that the State High Courts do not have jurisdiction to entertain Suits wherein the Federal Government, its agent or agency is a party whether or not they are fundamental rights in view of the provisions of s. 251 (1 )(r) and (s) of the 199!1 Constitution. In Omoniyi Ayeni v. University of llorin38 the Court upheld a preliminary objection against the jurisdiction of the Kwara State High Court and pointedly declared that a State High Court could not in the light of s. 230(l)(q), (r) and (s) of the then 1979 Constitution as amended by the Constitution
37 For which see cases line Naliu Rabiu v. State (1981) NCLR 126
38 (2000) 2 NWLR266
(Suspension and Modification) Decree, 1993 ‘ assume jurisdiction over any Suit whatever once an agency of the Federal Government was a party thereto. A similar decision was reached in University of llorin v. Prof Oiutola.40 As already stated, even before the making Decree 107 of 1993 and the 1999 Constitution, the Court of Appeal found it necessary to declare in Senate of the National Assembly v. Prince Tony Momoh11 that in keeping with the principle of federation a person wanting to sue the Federal Government for an infraction of his fundamental rights should approach the Federal High Court not a State High Court, and vice versa. Followed to the very end this translates into a proposition that a “High Court in that State” means only the Federal High Court in such cases.
Attractive as the proposition or position may seem it is fraught with construction and policy difficulties. One, t does violence to “a High Court in that State” which is the clear unmistakable position of the Constitution itself, if “a High Court in that State” must be given its unambiguous meaning42 then the State High Court must not be counted out. It ought to be remembered that even under the 1979 Constitution wherein the jurisdiction of the Federal High Court was severely circumscribed it had a concurrent jurisdiction with the State High Court as already shown in this work. Since it was so it is difficult to see why the State High Court should now be denied concurrent jurisdiction simply because the Federal High Court now has very wide jurisdiction under the Constitution It must be remembered that the Federal High Court does not have an unlimited jurisdiction
39 Note 25 supra, which was the then equivalent of the present s. 25(1) (q). (r) and (s) of the 1999 Constitution
40 (1998) 12 NWLR (pt. 576) 72.
41 Footnote 18 supra
42And in our constitutional jurisprudence words that are very plain, clear and unambiguous as the words in question are to be given their clear and natural meaning without resort to any other thing: Naliu Rabiu v. State note 37 supra etc. It may be argued that though the same phrase occurred at s. 42 (1) of the 1979 Constitution and though the Federal High Court was in existence the phrase was still understood as a reference to only a State High Court, but it must be noted that then the Federal High Court was not a direct creation of the Constitution then. At any rate, the statute establishing it specifically limited its jurisdiction outside fundamental rights issues while the State High Court had unlimited jurisdiction. The arrangement is now different as shown anon.
under the 1999 Constitution. Its jurisdiction is limited to the things specifically mentioned in its favour at s. 251. In fact, the Court of Appeal has held that it is rather the State High Court that has an unlimited jurisdiction once the matters in which the Federal High Court has exclusive jurisdiction under s. 251 are removed.43 Fundamental rights questions are not parts of the things mentioned in s. 251 and it is only by extension based on who is a party and who is not – as different from substance – that exclusive jurisdiction is now sought to be conferred on it with respect to fundamental rights matters by this line of cases. It is this writer’s submission that a communal reading of ss. 251 and 46 clearly shows that at least a concurrent jurisdiction between the two High Courts is intended in such matters. If it were not so, the phrase “a High Court in that State” would have been “an appropriate High Court in that State” or “a High Court sitting in that State and which has jurisdiction”. The 1999 Constitution did a fundamental restructuring of High Courts’ jurisdiction at ss. 251, 272 and 276 and if any restructuring beyond that was intended clear words to that effect would have been used at s. 46. In fact as it is today, any High Court in existence in a state is envisaged by s. 46. Thus if the National Assembly or State Assembly lawfully establishes any other High Court or its equivalent as s. 286 of the 1999 Constitution clearly seems to envisage that Court would, under s.46, share concurrent jurisdiction with the Federal and State High Courts in appropriate fundamental rights Suits.
In fact, the conferment of exclusive jurisdiction on the Federal High Court on the basis of the Federal Government or its agency being a party must not be carried too far. Clearly that Court has no jurisdiction in chieftaincy matters44 and it certainly cannot be said that if by some means the Federal Government or its agency is a party in such a Suit then the State High Court loses jurisdiction in favour of the
43 Okoroma v. Uba note 7 supra.
44 Tukur v. Government o Gongola State note 27, supra.
Federal High Court. It would be absurd to say so. In the same way the Federal High Court ordinarily lacks exclusive jurisdiction in fundamental rights matters and cannot automatically acquire an exclusive jurisdiction over any such matter just because the Federal Government or its agency is a party, when it or such agency may well be just a nominal party. The most that car be said in favour of the Federal High Court is that by reason of s. 46 and s.251 it acquires a concurrent jurisdiction in such matters with whatever other High Court there may be, which for now is State High Court and in appropriate cases the High Court of the FCT.
It is worthy of note that all the cases on this poi it that have created-^ this avoidable confusion are Court of Appeal decisions. That confusion was created in that Court even be ore the making of Decree 107 of 1993 and the 1999 Constitution.4′ It is hoped that an appeal is taken there soon on the point. The better view is that a liberal and progressive interpretation of the Constitution which is a judicial policy in Nigeria46 requires the Courts to hold that despite the language of s. 251 the State High Court has concurrent jurisdiction with the Federal High Court over all human rights questions or at least in some very clear appropriate cases.
One of the cases that would be inescapably appropriate for concurrent jurisdiction is one where a State Governor as the Chief Security Officer instructs the State Police Commissioner to take a certain action which directly or indirectly results in the violation of a citizen’s fundamental human right. The Governor and the Police Commissioner (an agent of the Federal Government for all intents and purposes in the execution of his police functions) will be necessary parties in the Suit and the citizen should be at liberty to
Even under the 1979 Constitution where no such controversy needed to exist while the Lagos Division of the Court of Appeal held in Senate v. Tony Momoh, supra, that a fundamental right Suit against the Federal Government had to go to the Federal High Court, the Jos Division held in Federal Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915 that the Suit was rightly Constituted before the Borno State High Court, Maiduguri for enforcement of the Plaintiff’s fundamental rights against the Minister.
Note 37 supra. See also A-G. Bendel State v. A-G of the Federation (1982) 3 NCLR 1; 10 SC 1; A-G of the Federation v. A-G. Abia State & 35 Ors (2001) FWLR pt. 64) 202, SC.
sue them in either Court. It will amount to an overstretching of federalism to postu ate that just because of s.251 the Police Commissioner cannot be taken to the State High Court but that the Governor – the Chie Executive Officer of and in many things the very embodiment of the State – can be dragged to the Federal High Court. It will also be non-availing to argue that since every Police Commissioner may under s. 215(4) of the Constitution first insist on clearing the Governor’s instruction with the President or a Minister of the Federal Government authorised by the President before obeying the Governor, any instruction of the Governor executed by the Police Commissioner indirectly becomes an instruction of the President or the relevant Minister and therefore can only be litigated in the Federal High Court.47 Such an argument would be purely lame because even if the Commissioner actually seeks and obtains the permission (instruction) of the President or Minister before executing the Governor’s instruction that does not remove the fact that the Governor gave the instruction and remains the principal Defendant. Even if the President or his Minister can in such a case become a party, he and the Police Commissioner are at best lesser parties than the Governor – more or less nominal parties.
The situation will be clearer in a situation where a Governor’s convoy is passing and he instructs a Police Sergeant in his security team to arrest a citizen. If the arrest turns out to be unlawful can it by any means be argued that the Governor is not the principal culprit or that by whatever kind of implied authorisation it is the President, a Minister or the Inspector-General of Police that should be proceeded
47The subsection empowers a State Governor or a Commissioner of the State authorised by the Governor to give to the Police Commissioner in the State “such lawful directives with respect , r le maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directives or cause them to be complied with” The proviso however empowers the Police Commissioner to request “that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions”. There is only one police force in the country, which is controlled by the Federal Government. The President appoints the Inspector-General of Police (IGP) who is answerable to him. While the Governor is the Chief Executive of the State and appoints Commissioners to help him run the State the IGP appoints and posts State Police Commissioners who are answerable to him.
against, just so as for the matter to go to the Federal High Court alone? That would amount to restricting a party’s right to sue the assailants of his liberty on bare technical considerations of forum. Forum should not determine substantive claims or parties, but rather vice versa.
In the new democratic dispensation some states have exercised their basic right of providing security for their residents48 by enacting laws under which state vigilante (or state security) and traffic control outfits have been formed and equipped.49 Assume that an officer of such a vigilante group or road traffic control outfit comes to a scene where an oil pipeline or an oil wellhead is being vandalized or has just been vandalized and makes mass arrests and hands those arrested over to the Government House security for detention- pending police takeover of the case (which security personnel may even beat up those people9’’). If it turns out that one of the people arrested and beaten up was only passing by and had nothing whatsoever to do with the sabotage or vandalisation and he wants to sue by way of fundamental rights enforcement for his release from unlawful detention is it possible to argue that he must do so at the Federal High Court just because the thing for which he was wrongly arrested and beaten up had to do with “mines and minerals (including oilfields, oil mining, geological surveys and natural gas)” which under s. 251 comes under the theoretical exclusive jurisdiction of the
48Sections 5 and 176 vest in the Governor the executive powers and Chief Executive position (and therefore the Chief Security Officer’s office and function) of the State. Section 4(2) vests the legislative powers of the State in the House of Assembly. Crime control is one of the things over which only the House of Assembly of a State can exercise that power since it is neither in the Exclusive Legislative List nor in the Concurrent Legislative List but in the Residuary Legislative List: A-G. Ondo State v. A-G of the Federation (2002) FWLR (pt. 111) 1972, SC.
49See, for instance, the Anambra State Vigilante Services Law, 2001 the Abia State, State Vigilante Services Law, 2000 (the notorious “Bakassi Boys outfits) and the Rivers State Traffic Amendment) Law, 2002. It is unfortunate that some of the security bodies created by these statutes were turned into bands of thugs and engines of illegality and have had to be disbanded. That fact does not however removed from the fact that the states were legally capable of making those laws.
50It is one of the symptoms of the nation’s political underdevelopment that even under a civilian regime like the present one overzealous Government House security personnel and indeed policemen on any kind of duty in the country sometimes lose their handle and beat or terrorise citizens particularly when those citizens are under arrest for whatever the police considers a serious (political) crime against the government of the day or its obvious political wishes or interests.
Federal High Court? We do not think so.
It is in the light of these views51 that the recent effort by the Supreme Court to settle the matter must be gladly welcome though it does not solve all the problems. In the case of Grace Jack v. University of Agriculture, Makurdi52 the Court considered ss. 42 and 230(l)(s) of the 1979 amended Constitution i.e. the equivalents of ss. 46 and 251 (1)(r) of the 1999 Constitution. It held that s. 42 was a special provision which dealt with matters of fundamental rights, conferring jurisdiction on the State High Court irrespective of who is affected by an action founded on such rights. The Court relied on the time hallowed principle that where there is a special provision in a statute a later genera provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared.53 The position is therefore that the State and Federal High Courts have concurrent jurisdiction and the dichotomy based on whether or not the Federal Government or any of its agencies was a party, is no longer in existence and is not law.54 As would be expected, this decision is now being followed in other cases.56
Even then, however, a problem persists. The Federal High Court would only have jurisdiction over a fundamental rights matter if it is physically located within the geographical boundaries of the state in which the infringement of the right happened or is about to happen.56 A Federal High Court ordinarily having jurisdiction in all other causes and matters arising out of or in that state, but which is physically
51Which were written in 2003.
52Note 10 supra.
53For which see such cases as Federal Mortgage Bank of Nigeria v. Olloh (2002) 9 NWLR (pt. 773) 475, 489.
54The principle of party jurisdiction as different from subject matter jurisdiction which Nigerian law has been used to over the decades is therefore abrogated in this area of the law. For a discussion of the two types of jurisdiction see NEPA v. Edegbere (2002) 18 NWLR (pt. 798) 79: (2003) FWLR (pt. 139) 1556.
55See. for instance, E A Okoyode v. Federal Capital Development Authority (2006) All FWLR (pt. 298) 1 200, CA: Nigerian Navy & 2 Ors v. Lionnel Garrick (2006) All FWLR (pt. 315) 45.
56Umar Tukur v. Government of Gongola State note 27 supra.
located outside that state, would not have jurisdiction over fundamental rights disputes emanating in that state. There is no reason whatsoever in legal policy or theory justifying this kind of dichotomy between human rights claims on the one hand and other causes and matters on the other hand, based purely on geographical locations of courtrooms of the Federal High Court. The decision on the location of those courtrooms is purely an administrative matter and not an issue of law. It should therefore not have such profound consequences on substantive and procedural law as it now has.
C. Modality for Enforcement of Rights
i. Forms of Action
Though the 1960 and 1963 Constitutions had provisions for fundamental rights57there was no special provision on how the rights could be enforced. The Courts therefore held that a citizen was at liberty to approach the Court for enforcement of his right (or generally at liberty to seek redress) in any manner he deemed convenient in any given circumstance.58 He could come by any of the prerogative actions, or by Originating Summons or a declaratory relief i.e. Writ of Summons. This was because where a Constitution merely provides for an application and does not say in what form the application should be made, then as a matter of procedure it may be made in any way by which the Court can be approached.59 All the same, because a fundamental right is not a mere right but a’ special one the remedy for which is normally outside the purview of an ordinary action brought to seek damages or a tort, the Plaintiff or Applicant was required to couch his claims in such a manner as
57Chapter 3 of the 1963 Constitution for instance.
58See, for instance, Mrs. Olufunmilayo Ransome-Kuti & 3 O s v. A-G of the Federation & 8 Ors (2001) FWLR (pt. 80) 1637. Because there was no Constitutional provision removing State immunity from Suit, the Courts found in this case that wrongs (including grave human rights abuses) were done against the Plaintiffs/Appellants by “the unknown soldier” but held that no remedy could be given. Before the 1963 Constitution abolished the principle, the Nigerian State could ‘do no wrong’ – an anachronistic principle borrowed from old England as part of the Nigerian colonial heritage.
59 See p. 1645 ratio no. 6
to sufficiently put the other party on notice that what was sought was an enforcement of a fundamental right, it was not enough for the Plaintiff to simply couch a claim in torts and merely call constitutional provisions in aid of the claim in torts for damages60
One major Handicap to the enforcement of fundamental rights then, particularly if the Plaintiff proceeded by Writ of Summons, was the obnoxious received English common law principle that the State or King could do no wrong and could not be sued in its/his own Courts, which was still applicable then.61
The Fundamental Rights (Enforcement Procedure) Rules, 1979 were made under the 1979 Constitution. Though the authorities seem unanimous on the point that reliefs outside the fundamental rights specifically provided for under the Constitution cannot be pursued under the Rules62, some Courts have consistently held that the Rules is not he exclusive modality for enforcement of fundamental rights provided for in the Constitution. In Police Commissioner Amen Oyaikhire 5 3 Ors v. A’lhaji Mohammed Neka Jen1″‘ the Court of Appeal declared that a party “has the option of pursuing any one of the ways open to him to enforce his rights, including mandamus, prohibition, certiorari, injunction, and action for damages.” It stated that the 1979 Rules “represents a body of rules, yet another means of securing the enforcement of fundamental rights within that state where infringement occurred”.64 The judgement flowed in the same vein with such eases as Denen Tofi v. Ushe Uba & Anor65 Nemi v. State66 and Alhaji Dahiru Saude v. Alhaji Halliru Abdullah67 In Tofi the Court emphasised that a party had a right of choice of format
60Pei Eso. JSC at p. 1681 B-C
61It got abrogated bv s. 6 (6) (bl of the 1979 Constitution. Now also s. 6(6) of the- 1999 Constitution.
62See, for instance, Governor of Kogi State & 3 Ors v. Col Hassan Yakubu (rid) v Anor (2001) FWLR (pt. 43) 359 (CA): Ransome-Kuti v. A – G of the Federation note 58 supra: Abubakar U A Tukur v. Government of Taraba State & 2 Ors (1997) 6 NWLR (pt. 510) 549: General Sam Abacha & 3 O s v. Chief Gani Fawehinmi (2000) FWLR (pt. 4) 533 63(2000) FWLR (pt. 20) 699, CA
64Per Chukwuma-Eneh, JCA at p. 714 F-G
65(1989) 4 NWLR (pt. 116) 387, SC
66(1994) 10 SCNJ 1.SC
67(1989) 4 NWLR (pt. 11) 387. SC
according to his convenience in the circumstances. In Saude v. Abdullahi the Plaintiff brought an action before the Kaduna State High Court by way of an Originating Summons signed by his lawyer for the enforcement of his fundamental rights. The Supreme Court, just like the Court of Appeal before il. disallowed an objection taken against the Summons signed by the lawyer, instead of by the judge, as a means of instituting the action Kayode Eso, JSC declared68 that the whole complaint of the Appellant was an attempt to draw a red herring and that a High Court has jurisdiction to take an Originating Summons on fundamental rights issues. He further stated,
“It is my view that it would not matter by what manner that application has been made, once it is clear that it seeks redress for infringement of the rights so guaranteed under the Constitution. Assuming the Statutory Instrument – S. 1.1 of 1979 had not been made, the person seeking redress could bring the action to court in any manner that clearly depicts complaint of the infringement of the rights, indeed the Statutory Instrument is so clearly worded it does not lay the procedure therein down as the only procedure by which redress could be sought”69
Subsequently a full panel of seven Justices of the Court considered the matter in Ade Musa Ogugu v. State70 and Bello. CJN declared emphatically,
“I am inclined to agree with Mr. Agbakoba that the provision of Section 42 of the Constitution for the enforcement of the fundamental rights enshrined in Chapter IV c i the Constitution is only permissible and does not constitute a monopoly for the enforcement of those rights. The object of the section is to provide a simple and effective judicial process for the enforcement of fundamental rights in order to avoid the
68At p. 418H
69At p. 419B
70(193-1) 9 NWLR (pt. 366) 1.
cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieved by the fundamental Rights (Enforcement Procedure) Rules 1979.It must be emphasised that the section does not exclude the application of the other means of their enforcement under the common law or statutes or rules of courts. These are contained in the several laws of our High Courts, for example, Sections 18, 19 and 20 of the High Court Law of Lagos relating to mandamus, prohibition, certiorari, injunction and action for damages. A person whose fundamental right is being or likely to be contravened may resort to any of these remedies of redress”71
Another stream of cases is to the effect that an application brought under the 1979 Rules is the only modality for enforcement of fundamental rights. In Raymond S. Dongtoe v. Civil Service Commission Plateau State & 2 Ors72 the Supreme Court held this view and Kar bi-Whyte, JSC made a declaration that ordinarily set out to clearly overrule Tofi v. Uba73 and should ordinarily have amounted to an overruling of all cases that reached a similar decision with Tofi. He declared,
“It is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from such a procedure is fatal to the enforcement of the remedy … The case of Denan Tofi v. Ushe Uba & Anor. (1987) 3 NWLR 707 which decided that the citizen may approach the Court for the enforcement of his right in the manner in which he may deem convenient in any given circumstances and that these included prerogative orders, originating summons, or declaratory reliefs
71 At p. 26 E – G. See also Asemota v. Yesufu (1982) 3 NCLR 419; Adedoyin v. Governor of Ondo Stale (1983) 4 NCLR 748; U.U. Chukwumaeze, note 12 supra; M. Unegbu, Enforcement of Fundamental Rights in Nigeria Deeplaw Professional Publishers Ltd, 1997.
72 (2001) FWLR (pt. 50) 1639
73 Note 32 supra
or by any simple but clear and precise application or by any combination of these cannot be correct.”74
However, while the panel in which His Lordship made this declaration had 5 members the one that decided Ogugu v. State75 had 7 members. The germane question is whether a Supreme Court panel of 5 members can overrule a panel of 7 members. Since 7 Justices are normally empanelled for serious Constitutional questions or other matters wherein an existing decision may need to be overruled the position is rather that the opinion of a panel of 7 justices overrules that of 5. It cannot be the other way round. Therefore much as Dongtoe may have overruled Tofi the decision in Ogugu still stands. The problem of confusion on whether or not only the 1979 Rules must be followed or if any other procedure is permissible therefore remains.
Before Dongtoe some other decisions had been made to the same effect. In Nnaemeka Udene v. Raphael Ugwu76 Achike, JCA (as he then was) declared,
“While it is common knowledge that prior to 1/1/80 any complaint of the infringement of fundamental rights can be brought to court by any form of action which clearly discloses such infringement, it is clear to me that such libe al approach is no longer tolerable having regard to the provisions of Order 1 Rule 2(2). Sub-rule (2) makes it mandatory that any procedure under Chapter IV for infringement of fundamental rights shall be commenced by prior application for leave of the High Court of a State.”77
Niki Tobi, JCA (as he then was) also stated, at p. 70 E – F of the report,
“A community reading of section 42 (1) of the Constitution of the Federal Republic of Nigeria 1979 and the Fundamental
74 At p. 1663 A – C
76 Note 42 supra
76 (1997) 3 NWLR (pt. 491) 57
77At p. 68 G – H
Rights (Enforcement Procedure) Rules. 1979. in my humble view, clearly shows that the only procedure now available to a party who brings an action for the enforcement of fundamental rights under Chapter IV of the Constitution, is by the 1979 rules, which were made by the Chief Justice of Nigeria, who at the material time, was Hon. Justice A. Fatayi Williams “
In reaching their conclusion their Lordships were simply following the Supreme Court judgement in Din v. AG of the Federation78 where Nnaemeka-Agu JSC had pointedly stated that the 1979 Rules had prescribed the correct and only procedure for the enforcement of fundamental rights which arise under Chapter IV of that Constitution.”
What emerges from these two streams of cases is a confusion as to which form of Action can or should be adopted by a Plaintiff in a fundamental right Action. It is instructive that the Supreme Court had not only contradicted itself on the matter but two of the Court of Appeal Justices that canvassed the view that the 1979 Rules alone applies are now on the Supreme Court Bench.79 The discomforting possibility is therefore that even in the future what that Court will say on the subject will depend on who and who constitute the panel. Different panels nay well give one opinion or the other and the confusion will continue. The Honourable Court ought to carefully consider this point and come out with a declaration to finally settle it.
As it does so, it is this writer’s view that the liberal approach is to be preferred. A Plaintiff ought to be at liberty to come under whichever procedure that may be convenient in his circumstances. It is reasonable to expect that if the 1979 Rules alone is insisted on there will be cases in which the victim of fundamental rights breach may be forced to go without a remedy because it is grossly inconvenient or impossible for him to come under the 1979 Rules.
78(1986) 1 NWLR (pt. 17) 471
79Achiko and Tobi. JJSC. As this work was getting to the press the Honourable Justice Okay Achike was most regrettably to the Bar and Bench, retiring from the Supreme Court due to ill health.
For instance, Musa’s rights are violated and he is even forced to go into exile where he stays for 2 years; or the brutality he has suffered makes him bedridden for 2 years within which period his family is busy running from pillar to post for his medicare and nobody in his right senses is thinking of a Court Action for those 2 years. In either case the citizen’s access to the Courts under the 979 Rules would have been lost at the end of the 2 years under Ord 1 r. 3(1) which prescribes that he must apply within 12 calendar months “from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made”. If for any reason the Court does not extend time for him his rights would forever go unretrieved. From experience in other forms of litigation in our Courts it seems reasonable to expect that time may not always be extended easily, and appeals may have to be taken on whether or not time should be extended for him – thereby wasting further time. On the other hand he can very well come by Writ or some other process even after the 2 years without subjecting his chances to any person’s discretion about the period of delay.
The fact that the Courts saw the need to hold that rights under the African Charter are enforceable outside the 197980 Rules is an indication that there is really nothing intrinsically wrong with enforcing fundamental rights by other means other than the Rules. If it is good for rights under the Charter it is good and necessary for those under the Constitution. Those rights are constitutional provisions and there is need for enormous liberality not only in interpreting their words but also their enforcement. A liberal interpretation of s. 46 of the 1999 Constitution and of the 1979 Rules itself is consistent with the view we are canvassing here, while a restriction to the 1979 Rules is rather unnecessarily restrictive. As already stated, it is a principle in Nigerian jurisprudence that a liberal approach is to be adopted in
80Abacha v. Fawehinmi. note 62 supra
interpreting constitutional provisions.81
The very Courts and panels that held that only the 1979 Rules can be adopted have also held that where the enforcement of a fundamental right is not the principal claim in a Suit (i.e. when it is ancillary) it cannot be brought under the Rules.82 In such a case the right will be enforced together with the principal claim in whatever procedure (Writ of Summons for instance) that is adopted for the principal claim. That in itself is sufficient admission and proof of the fact that fundamental rights can be duly enforced through those other procedures other than the 1979 Rules. If they can be enforced under those procedures as ancillary claims they can much more be enforced under them as principal or only claims.
n this writer’s view all that needs to be done is to insist that whichever procedure a Plaintiff adopts he must couch his prayers in such a manner as would give the other party sufficient information and notice of what redress is sought against him so as afford him an opportunity of putting his case why the redress should not be granted.83 If a party seeks a fundamental right enforcement it must be properly presented as such, not just as a claim of damages for a tort in aid of which the constitutional provision on the relevant fundamental right is only called.
In summary even though proceeding under the 1979 Rules may sometimes be more beneficial for any Plaintiff and will always be so for some classes of citizens84 it should not be prescribed as the only procedure. The Constitution is for even future generations of Nigerians. If in the future developments that are presently unforeseen make it much more desirable to bring enforcement Actions by Writ
81 There are now so many authorities on this point and it has become trite. See, as instances, Naliu Rabiu y. State (1981) 2 NCLR 293; A-G. Bendel State v. A-G of the Federation & 22 Ors (1982) 3 NCLR 11 Okogie v. A-G of Lagos State (1981) 2 NCLR 337
82 See, for instance, Dongtoe v. Plateau State Civil Service Commission note 72 supra.
83 Eso, JSC inter alia in Ransome-Kuti v. A-G of the Federation, note 58 supra
84 It is not subject to certain common law limitations to which other procedures may be subject. For instance, while an infant may not be able to institute an Action in his own name and by himself under the otht r procedures, he can under the Rules. Under the Rules he does not need a guardian or next friend: Sunday Okpetu v. COP, Delta State & 5 Ors (2001) FWLR (pt. 69) 1317
of Summons for instance those generations may well be very adversely affected if the restrictive rule is adopted now.
Here is a call on the Supreme Court to empanel 7 of its Justices at the earliest opportunity to overrule Dongtoe and all similar cases. The earlier that is done and the present confusion cleared the better.84’1
//. The Matter of Main-Ancillary Claims
It seems quite trite that the procedure under the Fundamental Rights (Enforcement Procedure) Rules, 1979 is a special procedure. It is a constitutional procedure mac e under s. 42 (3) of the 1979 Constitution85 as rules of “practice and procedure … for the purposes of this section” and the section is solely about the right of “any person who alleges that any of the provisions” of Chapter IV of the Constitution “is being or likely to be contravened in any State in relation to him” to “apply … for redress”, it s therefore something obviously restricted for the seeking of redress for any contravention of anything in Chapter IV not the entire Constitution. Clearly, the straight and unambiguous words of the Constitution do not envisage the trial of other Actions – even other constitutional breaches and wrongs – under the Rules86 and this clearly seems to be why the Supreme Court (and other Courts) has held that he Rules is limited and confined to provisions of Chapter IV and that any exercise of jurisdiction thereunder in respect of subject matters outside Chapter IV is without jurisdiction, unconstitutional and void.87
84If a fundamental right enforcement matters is filed in a State High Court and is to be served outside the state then it must comply with the provisions of s. 97 of the Sheriffs and Civil Processes Act by having an appropriate endorsement on it to show that it will be so served even though it is brought through an Originating Summon or Motion and not a Writ of Summons: Dr Chris Ngige & Ors v. Hon Nelson Acbukwu & Anor (2005) All FWLR (pt. 247) 1545, CA.
85Section 46 (3) of the 1999 Constitution
86As already stated, Nigerian Constitutions are to be interpreted liberally to bear out the spirit of the Constitution, but where the words are very clear and unambiguous the literal meaning bears out the spirit of the law: Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (pt. 91) 622 and it is not for the courts to read anything thereinto: Lamikoro Ojokolobo & Ors v. Lapade Alamu & Anor (1987) 7 SC (pt. 1) 124
87 Karibi-Whyte, JSC in Dongtoe v. CSC, Plateau State, note 72 supra. It is patently wrong, for instance, to seek a declaration of title to land Under the Rules even if the alleged trespasser or land-grabber is the government, an arm of government or any of the security agencies. See generally, NDIC & 3 Ors v. James Koleosho (2006) A1! FWLR (pt. 312) 2099, CA: Achebe v. Nwosu note 4 supra.
It naturally flows from the above reasoning, and the Courts have so held, that if a fundamental right question is not the only or at least the major claim in a Suit, the Suit cannot be tried under the Rules.88 It seems quite dear that trying fundamental rights claims that are merely ancilliary to other claims under the Rules would amount to sneaking the major or principal claims in those Suits into the Rules through the back door; a trial that would be tantamount to an unconstitutional and void venture. It would also breed confusion in the law and completely render hollow and empty the Rules’ provisions as they would become impracticable in the face of claims not meant for it. Suits under the Rules are for instance triable by affidavit evidence which is completely unsuitable for trial of very contentious and controversial claims that are best tried by pleadings, oral evidence and extensive cross examination.89 A look at some of the cases will buttress these points.
In Cletus Madu v. J. S. Neboh & Anod90 Appellant was the tenant of 1st Respondent. While Appellant was out of town 2nd Respondent – son of the 1st Respondent – removed the door to the one room occupied by the Appellant and put the Appellant’s younger sister to flight. While the room was thus exposed, some of the Appellant’s property were allegedly destroyed or removed including a sum of N400,000.00. He brought an application under the Rules for 7 reliefs including one for payment of N1m for the violation of his right to privacy under s. 34 of the 1979 Constitution. To his affidavit he attached tf e tenancy agreement. Centus Nweze, J reasoned that the parties’ rights in the relationship and transaction were encapsulated in the agreement and struck out the Suit. In dismissing this appeal against that judgement the Court of Appeal held that the fons et origo of the Appellant’s complaint was the damage done to
88 Dongtoe note 72 supra; Ransome-Kuti v. A-G note 58 supra; Sea Trucks Nig. Ltd v. Panya Anigboro (2001) F WLR (pt. 37) 1000; Tukur v. Government of Taraba State note 62 supra; etc
89 See generally, this writer in The Law & Practice of Affidavit Evidence, Lawhouse Books, Port Harcourt. 2003 (in the press).
90 (2001) FWLR (pt. 52) 2247
the room in his possession by the removal of the door and that the interference with his family life or privacy was incidental The trial Court was therefore right in striking out the Suit. In the Sea Trucks case the Respondent and other members of staff belonged to the National Union of Seamen and Water Transport Workers but decided to join NUPENG even though the Appellant’s operations had nothing to do with petroleum prospecting. Respondent and some others refused to go back to work despite reasonable efforts by Appellant for them to go back, but rather engaged in acts calculated to disrupt Appellant’s operations. The Respondent still refused to resume work despite a notice posted to the effect that he and his fellows would be summarily dismissed if they failed to resume by a certain date. He sued under the Rules after losing his job fo redress for breach of his right of assembly and association allegedly committed when he was dismissed from work. The Supreme Court held that the crux of the matter was the determination of his employment contract, a breach of contract, which is not justiciable under Chapter IV but by a common law Suit not a constitutional Suit. Per Achike, JSC
“There is no doubt that the respondent’s grievance also, as it were wears an elusive colouration that could be redressed as a breach of fundamental right under the rules. That pitfall in the respondent’s claim – as in many similar claims including those on chieftaincy matters – is the deliberate and disingenuous act of oversighting the restricted frontiers of Chapter IV of the 1979 Constitution and the specified fundamental rights therein which are enforceable under the Rules. Once such pretence is dismantled the clear limits of the constitutional provisions under Chapter IV will negate the apparent right of a Plaintiff to initiate actions under the Rules in relation to matters outside the purview of the provisions of Chapter IV of the Constitution.”91
91At pp. 1028 G – 1029A
The decisions were similar in Tukur v. Government of Taraba State & 2 Orb’ where the major complaint was the deposition of the Appellant as Emir while his detention thereafter was ancillary and in Basil Egbuonu v. Borno Radio Television Corporation93 where the termination of in employment contract was the major claim. In Tukur Obaseki JSC declared.
” In the instant appeal, all the breaches of the fundamental rights alleged flow from the deposition of the appellant from the of ice of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office and the deposition of the Emir is a chieftaincy question … The appellant in my opinion, is directly complaining by his claim or relief claimed and affidavit evidence that his civil rights as a chief have been breached and that in the process, his fundamental rights of fair hearing, liberty and freedom of movement have also been breached.”94
It is easy to see that in each of these cases, as Karibi-Whyte, JSC would say, “… the right, if any, violated, is not synonymous with the substantive claim which is the subject matter of the action” and “enforcement of the right perse cannot resolve the substantive claim which is in any case different.”95 Sokoto Local Government & 2 Ors v. Alhaji Tsoho Amale96 bears this out quite clearly. The Respondent’s right of occupancy over his land was revoked by the Local Government which wanted to use the land for the expansion of a cattle market. He was not given any notice of revocation. He sued under the Rules alleging that his right to fair hearing had been infringed upon. The High Court found for him but the Court of Appeal promptly reversed the judgement holding that his claim was in effect one for a declaration of title to a statutory right of occupancy and
92Note 62 Supra
93(1997) 12 NWLR (pt. 531) 29
94 At p. 547 C – E
95 Sea Trucks at p. 1024 H.
96(2001) 8 NWLR (pt. 714) 224, CA, Kaduna. Also see Charles Ushae & 2 Ors v. COP, CRS (2006) All FWLR (pt. 313) 86. CA.
could not be brought under the Rules. No doubt,, even if the Courts had heard and determined the question of whether or not his right to fair hearing had been breached and even if they all found for him that would still leave unresolved the principal question of whether or not the revocation was for an overriding public purpose and therefore valid or not. In that case the Suit would only have been treated half way and there may be no clear winner or loser apart from the multiplicity of Suits it would have engendered
The Court of Appeal has however introduced a new and very credible dimension which can hardly be dismissed by a wave of the hand and which the Supreme Court may well find itself agreeing with sooner or later since the decision was based on a line of decisions of the Supreme Court itself and a trite principle of law, which was merely transplanted into human rights litigation by the Court of Appeal. In Oruk Anann Local Government v. Daniel JN Ikpa & Ors97 the Court of Appeal relying on the Supreme Court’s decision in such cases as FGN v. Zebra Energy LtcP98 held that even when a party sues under a wrong procedure the Court will not be shackled by procedure and will determine the issues between the parties once the live issues are clearly brought out to the Court. The Respondents had sued by Originating Summons for a declaration that they were still in the employment of the Local Government and indeed everything in the Suit, except for an allegation of a breach of their right to fair hearing, concerned unlawful termination of their employment. They brought the Suit under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.99 The Court of Appeal, like the High Court before it, held that despite the Respondents’ failure to come properly by obtaining leave of Court and though it was brought by Originating Summons and there was a seeming controversy over the facts, (and though it was mainly an
97 (2005) All FWLR (pt. 249) 1910, CA
98 (2003) FWLR (pt. 142) 154; (2002) 18 NWLR (pt. 798) 162. See also Mobil Producing (Nig) Unltd v. LASEPA (2003) 18 NWLR (Pt. 798) 31.
99Cap A9 LFN 2004
unlawful termination case to which the fair hearing complaint was only incidental the Suit was properly heard and judgement entered for the Respondents by the High Court.99a
It has been a long and well established trite principle of Nigerian law that a party who has a meritorious claim in Court in Court is not to be shut out simply because he has come under the wrong procedure100 and in FGN v. Zebra Belgore, JSC (as he then was) captured the disposition of the Courts on the matter when he said,
‘This Court shall never be shackled by procedure; case is not made for procedure, it is the other way round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important, it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties … it does not matter whether by writ of summons or by originating summons a suit was initiated, what is relevant in a case of this nature is the question of justice of the case,”101
It is the writer’s considered view that in some cases, even if they are few, it would be necessary for the Courts to look to the justice of the matter and decide it even if it brought under the Fundamental Rights (Enforcement Procedure) Rules and the major claim or one half of the claim (in volume or substance) is not based on a human rights violation. It would certainly always not accord with justice as between the parties and the Court, particularly as it affects the aggrieved party, to simply or routinely throw a Suit away just because the major relief sought or indeed just about one half of it is not human rights based Indeed whenever the relief(s) are equally based on
99a Cf Abubakar Tatari Ali Polytechnic v. Charles Maina (2005) All FWLR (pt. 284) 250. CA
100 See such cases as Chief Charles Dagogo & Anor v. A-G, Rivers State & 7 Ors (2002) FWLR (pt. 131) 1956, CA: Herbert Emezi v. Akujobi Osuagwu & 3 Ors (2005) All FWLR (pt. 259) 1891, SC.
101 At p. 183 D-F
human rights violation and on another issue he Courts should hear the Suit under the Fundamental Rights (Enforcement Procedure) Rules if brought thereunder. In other cases where the human rights relief is the major relief the Court should consider all relevant factors. One is the probable multiplicity of Suits which refusing the matter could occasion. Another is whether or not the human rights relief can properly be merged with the main relief and brought through the procedure appropriate for that main relief or if a completely separate Suit will have to be filed. If the human right relief cannot be brought together with the main relief in the procedure appropriate for that main relief or is too negligible to found a separate Suit (considering the amount to be claimed etc) then it may well be that, as an exceptional circumstance, the entire case should be heard under the human rights procedure. The great importance which the country now attaches, or should now attach, to the protection of human rights should ensure this – i.e. the human rights relief in such a case should gain prominence though it is the lesser relief.
Some commentators are even of the view that the main-ancillary claim dichotomy is completely erroneous and not to be supported at all even in the absence of peculiar circumstances necessitating that exceptional treatment be given to some Suits the way we have canvassed above.102
Mr. Nwofor argues, for instance, that the approach is wrong because the words of the Constitute are so clear-and that the approach amounts to reading something into the clear words of the Constitution. Really the words of s. 46 of the Constitution are undoubtedly clear but they are not free from difficulties in the light of practical developments in the Human F tights practice in Nigeria. Mr. Nwafor admits and canvasses the view that a liberal and broad interpretation of the Constitution is the preferred approach in Nigeria but still insists that the absolute literal interpretation should be
102See, for instance. B E.I. Nwofor, The Urgent Need for Certainty and Clarity in the Law on the Proper Mode of Commencing etc note 12 supra
adopted, asserting at the same time that the approach is inconsistent with a liberal interpretation. He cites the refreshing state me'” ” Udo Udoma, JSC in Nafiu Rabiu v. State to wit,
“And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution”.103
It is our contention that considering the circumstances that have arisen what the Courts have done amounts to a liberal and bread interpretation of the Constitution as against a literal, narrow, non-progressive interpretation. Part of the liberal and progressive disposition is to adopt the mischief and purposive rules interpretation. Under the mischief rule the Court asks itself: “What mischief existed in the law which this provision set out to cure’ Here the defect which s. 46 and the Rules extant thereunder sought to correct was the non – existence of a special procedure by which fundamental rights violations could be redressed, distinct from the way and manner other claims – even claims arising out of those same violations but which the Plaintiff prefers to couch and pursue in other ways, for instance claims in torts arising out of rights violation It was therefore he purpose of the law to separate fundamental rights cases from the general run of Suits and claims i.e. to keep the two groups of Suits in different compartments through procedure by shutting those other Suits out from trial under the rules while leaving “an opportunity for the fundamental rights Suits to be triable under the other modes in appropriate cases. It chose a considerably faster trial for the violation cases. It provided for trial by affidavit and Motion
103 (1980) 2 NCLR 293, 326 See p. 14 of Mr. Nwofor’s paper.
or Summons, a procedure completely improper for claims in torts and contract. A correct interpretation of the law would therefore be that which ensures that the two groups of Suits are kept in different compartments i.e. that the special procedure reserved for fundamental rights cases is not open to the other group of Suits which would normally be inappropriate for trial by affidavit evidence alone. The only rider is that, as we have canvassed above, the Court should treat differently cases where it would amount to injustice to decline to hear cases brought under the human rights enforcement procedure just because the human right claims are the lesser or mere incidental claims.
Therefore, where a party’s principal or major claim is a breach of contract – whether of employment or for supplies or for construction of a house or bridge – or a claim in torts or such other things as the propriety or otherwise of a deposition from a throne or chieftaincy position, it would amount to smuggling such claims in for trial by the inappropriate modality of Motion/Summons and affidavit to allow them to be tried under the 1979 Rules just because a claim of fundamental right violation which is not the major grouse of the Plaintiff is endorsed on the Suit and there are no special circumstances. So much confusion would be created in the law if all Suits were to become admissible and triable under the 1979 Rules. What is more, the 1979 Rules is a particularly technical procedure a slight non-observance of which could be fatal to the entire Suit. It is undesirable to subject all sort of Suits to that procedure just because a trace or flavouring of human rights nature appears in them.
The learned practitioner also argues that fundamental rights claims cannot correctly be classified as accessory to any other claim. He argues that fundamental rights are basic, essential and deep rooted in a person that they form part of the elementary nature of the person, a right which stands above the ordinary laws of the land and is antecedent to the political society itself and that they have been made
immutable to the extent of the immutability of the Constitution itself,10 and that they are not just mere rights.105 He argues that they cannot be “accessory” which means “occurring by chance, of secondary importance; arising out of something else, in a way not primarily intended”.106
Undoubtedly, the fundamental rights are of great importance – of 10 less importance than any other right in Nigerian law. However, when our Courts call them ancillary or incidental in some claims it is not meant thereby that the other rights are of greater legal importance or of higher or greater consequence than the fundamental rights. In fact, the fundamental rights are always fundamental and immutable. What is meant is that upon the occurrence of an event leading up to an Action, the Plaintiff s main complaint may not be that of a violation of his right but some other kind of injury. This may arise out of the wording of the different claims or out of the legal implications of the event vis-a-vis the claims made. For Instance in Madu v. Nebohwl the door of the room occupied by the Plaintiff as a tenant was forcibly removed by the 2nd Respondent who put the Plaintiff/Appellant’s sister to flight, as a result of which Plaintiff/Appellant’s N400,000.00 allegedly got lost and some of his property were vandalised. The Courts found that the parties’ rights were encapsulated in the tenancy agreement exhibited by the Plaintiff/Appellant himself and that his major complaint – as stated in his own affidavit evidence – was the damage done to the room in his possession (and his property therein) by the removal of the door. No doubt, the size and controversial nature of the claims were unsuited for trial by affidavit but by pleadings and extensive cross-examination. It would be interesting, for instance, to cross examine him on how he (an occupant of one room in a communal face-me-l-face-you house) had N400,000.00 and
104 Borrowed from Eso, JSC in Mrs Olufunmlayo Ransome-Kuti and Ors v. A-G of the Federation and Ors (1985) 2 NWLR (pt. 6) 211, 229 – 230
105 Eso, JSC et al in Saude v. Abdullalri p. 419
106 The New Lexicon Webster’s Dictionary of the English Language p. 489
107 Note 89 supra
also decided to keep it in that room and embark on a 2 days journey leaving only his small sister. In Sea Trucks Ltd v. Anigboro108 as in Dongtoe v. Plateau State CSC109 and Borno Hadio Television Corporation v. Egbonu110 the Plaintiff’s major reason for going to Court without the determination of which the crux of the dispute would remain unaddressed was in each case an alleged unlawful determination of an employment contract. The alleged fundamental rights violations only occurred n the course of the determination and the claim for which was smaller even in value than the other claims. In Tukur v. Government of Taraba Sfafe111 it was the deposition of the Emir that was the major issue In each of these cases even if the alleged fundamental rights violation, (which alone could be properly tried under the 1979 Rules) was determined it would not answer the entire claim and if the entire claim was to be taken under the Rules the major claims would have been smuggled in for trial by an inappropriate system. It would also be inappropriate to separate the claims for trial in separate Suits in such a circumstance as that would amount to courting duplicity of Suits and attendant confusion. The two courts may make overlapping and repetitious awards and different deductions may even be made from the same facts.
Where the major claim is a fundamental rights violation its determination would answer the entire claim or most of it so that a specific determination of those other claims may well be completely unnecessary. Such cases are triable under the Rules.
It is this writer’s view that the Main-Ancillary claim distinction is not only practical but has immense value and necessity. Refusing to adjudicate a matter under the Rules does not amount to denying the party access to the Courts. It only means his matter is struck out for him to approach the Courts in an appropriate manner. In Tukur
108 Note 89 supra
109 Note 72 supra.
110 (1991)2 NWLR (pt. 171). 81
111 Note 27 supra
the Plaintiff was eventually unable to have his claims tried on the merits despite getting to the Supreme Court twice.112 The problem was however that of error of judgement by counsel and the Plaintiffs unfortunate death even before the second appeal to the apex Court was determined. Had he lived, he would probably have taken the matter to court probably by Writ of Summons in the right High Court and have it tried on the merits. There have also been other instances where matters got to the Supreme Court twice before getting tried on the merits.112 It is to be regretted that it is so, but it is not peculiar to Nigeria. Many times in some recondite areas of the law several appeals may need to be taken to the apex Court of a jurisdiction and the first cases arising in those areas may necessarily suffer otherwise avoidable delay. Sometimes it happens even in otherwise fast modes of dispute resolution such as Commercial Arbitration.114
D. Continued Application or Otherwise of the 1979 Rules.
The 1979 rules were made by the then Chief Justice of Nigeria, the Hon. Justice A. Fatayi Williams under s.42 of the 1979 Constitution and it came into force in January 1980. Its continued application under the 1999 Constitution should ordinarily be taken for granted and the Courts have in fact so taken it, but an argument to the effect that it is no longer applicable has been canvassed by a learned commentator115 on the grounds that (1) the Rules was not an existing law as at May 29,1999 to be saved under s. 315 of the 1999 Constitution and (2) that even if it was saved since more fundamental rights were provided for under the 1999 Constitution the new rights cannot be enforced under the Rules. Section 315(1) of the 1999 provides
112See f 1989) 4 NWLR (pt. 117) 517 and (1997) 6 NWLR (pt. 510) 549
113See. for instance, Ogbuan inya v. Okudo (1979) 6 – 9 SC 32 and Obianwuna Ogbuanyinya and 5 Ors v. Obi Okudo & Ors (1990) 4 NWLR (pt. 146) 557.
114Some arbitration matters have spent 15 years between trials of first instance and attendant appeals on procedure such as with respect to enforcement etc. See for instance, Black Clawson International Ltd v Papierwerke Waldhof- Asohalfenburg AG (1981) 2 Lloyd’s Rep. 446. Also see generally chapter 1 of this writer’s book, Studies & Materials in International Commercial Arbitration, Lawhouse Books, Port Harcourt, Nigeria, 2002.
115U.U. Chukwumaeze, Esq. note 12 supra.
“Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws,”
The learned writer argues that the Rules is not an existing law firstly on the basis of his contention that “Section 315 provided that the saved existing law should be deemed to be the act of the legislature” and that neither the Constitution nor a rule made by the Chief Justice – the head of the Judiciary – can be an Act of the legislature. He concludes that the “purport of that section is that it is only a law that can be an Act of the legislature – Federal or State – that is saved”. With respects, this is a misapprehension of the section. It amounts to saying that if a particular law was not made by the legislative arm of a government that law cannot be an existing law under s. 315. In pure and abstract jurisprudential theorisation an assertion that only a duly constituted legislature can make law may well be an attractive proposition, but certainly not beyond there into the realm of the practical. Customary law and, or common law principles were not enacted by any legislative arm of any government but in our shores, as in others such as Ghana the United States and the United Kingdom, they are as much law as any other body of rules statutory or otherwise. Be .that as it may, what the Constitution has plainly provided is that when a law is regarded as an existing law it “shall be deemed to be” i.e. it shall acquire force and potency as if it were (even though it is not and may never be capable of being) an Act of the National Assembly or a Law of a State Assembly.
This simply mea! s that once a law passes as an existing law it shall apply nationwide if it is on a matter about which the National Assembly has power under the 1999 Constitution to make laws, while if it is a matter over which only a State may make laws it shall apply only within the geographical confines of the State in question.
Section 315(4) provides that, ‘“existing law” means
“any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that comes into force after that date:’
If “any law”, “‘any rule of law”, “any enactment” or “instrument whatsoever’ is an existing law the 1979 Rules definitely can pass as one and after passing as such would be deemed to be an Act of the National Assembly applying nationwide. The Rules is a rule of law and an instrument since it is a Statutory Instrument. What is more, s. 318 of the Constitution defines an enactment as a “provision of any law or subsidiary instrument” In fact, even rules not reduced to writing in any form and which may never be reduced to writing or codified and which had never been made nor are they ever likely to be made by any legislature in the sense used by the learned writer, are in operation in the country now as existing laws under s. 315. Such rules include the common law principles and the customary law. In Raphael Agu v. Christian Ikewlbe1’6 the Supreme Court declared emphatically that the customary law was an existing law under the 1979 Constitution which had a provision worded in the same way as the present s. 315. Be that as it may, the phrase “existing law” even without any definition by the Constitution definitely includes such a body of rules of procedure as the 1979 Rules since law does not mean only substantive law but also adjectival or procedural law.
116 (1991) 3 NWLR (pt. 180) 385,SC
The learned commentator’s second argument on this was that since the 1979 Constitution lost validity on May 29, 1999 the Rules which derived force under the Constitution and therefore could not have any validity outside the Constitution also became inoperative on that date. To that extent he argues that the Rules, just like the Constitution, was not an existing law on that date. The argument, like the first one referred to above, would seem to stem from a quick or hasty reading of s. 315. A more patient reading shows that the only requirement with respect to time is for the law in question to be “in force immediately before the date when this section comes into force” i.e. May 28, 1999. Since the Rules was in force on that date, whether or not itself or the 1979 Constitution ‘was in force on May 29, 1999 essentially becomes a mute academic point.
The contention that even if the Rules is still applicable the fundamental right to acquire and own immovable property anywhere in Nigeria, which was not in the 1979 Constitution cannot be enforced under it is also not easy to support. The argument seems to proceed from an assumption that each right under the Constitution has or should have a particular provision specifically covering it in the Rules. There is no such thing. Each and every right provided for “in this Chapter” of the Constitution is covered and whether the rights are few or many is of no moment. In any event, if any particular right calls for any special provision in the Rules for its enforcement, the Chief Justice as the appropriate authority can “at any time by order make such modifications in the text” of the Rules a; he may consider “necessary or expedient to bring” the Rules into conformity with the provisions of the Constitution, under s. 315(2).
These views find comfortable company in Mr. Mwofor’s views.117 He argues as we have done here that the Rules qualifies as existing law and is therefore valid and subsisting under. S 315 of the 1999 Constitution. He is of the firm view that the Rules definitely comes within “any enactment or instrument whatsoever”.
117See footnote 90 supra
All things considered therefore, it is this writer’s view that the Rules are in continued application under the 1999 Constitution as if it was made there under and would continue in operation as long as fundamental rights are constitutionally guaranteed in Nigeria and a provision like the present s. 46(3) can be found in the statute book. It is therefore not necessary for the current Chief Justice to make any other rules under the 1999 Constitution unless he intends to effect changes to the 1979 Rules by repeal i.e. to repeal that one and make a new set of rules that will be different in substance. As already stated, the Courts have assumed the continued application of the Rules and tot one divergent judicial opinion has been found on the point. Therefore, in the practical place where it matters – the courtroom – the question as to whether or not the Rules has continued application does not arise at all. And it is right that it is so. The question is therefore merely one of academic concern and it is hoped that it so remains, if such academic exegesis on the point must continue to divorce themselves from reality. Otherwise, the better view is that even for academic purposes the argument is hardly necessary. Academic effort ought to be directed to more useful purposes for the growth of the law not assertions of little practical or academic consequence.
This article has examined the prevalent confusion with respect to whether or not the Federal High Court has exclusive jurisdiction over fundamental ights enforcement Suits in which an agency or agent of the Federal Government is a party, and as to whether or not a Plaintiff in a fundamental rights enforcement Suit must come under the 1979 Rules or is free to adopt any other convenient mode of instituting Action n the High Court. It has also examined other relevant issues and in each issue proffered suggestions for the clearing of the identified confusion. It is hoped that the Courts find the article helpful in setting out clear rules in those areas so as to finally and permanently bury the confusion.