By Hameed Ajibola Jimoh Esq.

Jurisdiction is said to be the life-wire and or spinal cord of a case in a court of law. See for instance, in the case of AJANAKU vs. FEDERAL REPUBLIC OF NIGERIA (2022), LCN/16131(CA), ‘jurisdiction’ was espoused by the Court of Appeal of Nigeria thus “The issue of jurisdiction is always a threshold issue. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is conferred on a Court by the Constitution or by statute, as may be permitted by the Constitution: Saraki v. FRN (2016) LPELR-40013 (SC); Adetayo v. Ademola (2010) LPELR-155 (SC); Adah v. NYSC (2004) 19 NSCQR 220; Utih v. Onoyivwe (1991) 1 SCNJ 25. The jurisdiction or authority of the Court is controlled or circumscribed by the law creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. Jurisdiction is so radical that it forms the foundation of adjudication. Jurisdiction was described by the Court, per I.T. Muhammad, JCA, (now CJN) in Sudan Airways Co. Ltd. v. Abdullahi (1998) 1 NWLR (PT.532) 156 at 163 as the spinal cord of a Court of law. See also Petroleum (Special) Trust Fund v. Fidelity Bank Plc & Ors. (2021) LPELR-56625 (SC); Ahmed v. Ahmed & Ors. (2013) LPELR-21143 (SC). A complaint querying the jurisdiction or authority of a Court to hear a matter is foundational to the legality of any decision flowing from the proceedings before that Court over such matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it: Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508; Aremo II v. Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd. & 2 Ors. v. Trans International Bank Ltd. (2008) 12 SC (PT.II) 240. A Court is said to have jurisdiction and competent to entertain a matter when: –

a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other,
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and;
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court of the jurisdiction to hear and determine the suit: Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (PT.510) 549; Drexel Energy and Natural Resources Ltd. & 2 Ors. v. Trans International Bank Ltd. (supra). Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes: Dalhatu v. Turaki & Ors. (2003) LPELR-917 (SC); Idemudia v. Igbinedion University, Okada (2015) LPELR-24514 (CA); Patil v. FRN (2014) LPELR-24078 (CA); Ibori v. FRN (2008) LPELR-8370 (CA). Territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area; Megatech Engineering Limited v. Sky Vision Global Networks LLC (2014) LPELR-22539 (CA); Billage Resources Limited v. Forcerock Tools Limited (2021) LPELR-56358 (CA). Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter: Mailantarki v. Tongo & Ors. (2017) LPELR-42467(SC); Lemit Engineering Limited v. Reynolds Construction Company Limited (2017) LPELR-42550 (CA). Territorial jurisdiction was described by the Supreme Court in Dariye v. FRN (2015) LPELR-24398 (SC), per Ngwuta, JSC, at page 29 of the E-Report thus: “Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.” See also: Iyanda & Ors. v. Laniba II & Ors. (2002) LPELR-7084 (CA).’. The Court determining a matter must ensure it has jurisdiction, failing which whatever step taken will amount to a nullity, see the case of IDISI V. ECODRIL (NIG.) LTD. & ORS. (2016) LPELR-40438 (SC) which held: ‘In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago v. Erichie (1893) Ac 518, 522; Timitimi v. Amabebe 14 WACA 374; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Utih v Onoyivwe (1991) 1 NWLR (Pt. 166) 206. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply, a nullity, Jumang Shelim and Anor. v. Fwendim Gobang (2009) 7 SCM 165; (2009) 12 NWLR (Pt. 1156) 435. That is the fate of the Ruling of the trial Court (Akoro, J) as, rightly, found by the lower Court.” Per NWEZE, JSC. Also, as held in the case of AKINJOKUN v. LUFTHANSA GERMAN AIRLINES & ANOR (2018) LPELR-46729(CA) “Where a Court lacks jurisdiction as in the instant case, it is unnecessary to consider other issues. See FCDA VS. SULE (1994) 3 SCNJ 71.” Per ADAMU JAURO, JCA (Pp 30 – 30 Paras B – C).
Now therefore, relating to the topic of this paper, it is important for me to first of all, state here that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has laid down the Rules for enforcing the rights guaranteed under Chapter IV of the Constitution and under the African Charter on Human and People’s Rights respectively and or jointly (as the case might be) and the Rules laid down are codified and named Fundamental Rights (Enforcement Procedure) Rules, 2009, which is made pursuant to the Constitution. In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself. Furthermore, I humbly submit that fundamental rights suits are sui generis (i.e. of their own Rules and Procedures) known as the ‘Fundamental Rights (Enforcement Procedure) Rules, 2009’. The following cases are noteworthy: in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is also humbly referred to. Also, Furthermore, the Supreme Court of Nigeria in the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6, also defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’. Furthermore, the Supreme Court of Nigeria has held in the case of Jim-Jaja v C.O.P. Rivers State (2013)6 NWLR (Pt. 1350) 225 SC. (page 254 paragraphs E-F and F-G) on the objectives of the procedure of fundamental human right thus ‘The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerian’s fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed’.

Therefore, in a fundamental rights enforcement suit (which is sui generis), ‘jurisdiction’ emanates from the provisions of section 46 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus ‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’. Also, Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as FREPR is humbly referred to. And ‘Court’ has been defined by Order I Rule 2 of the FREPR to mean ‘the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.’ From the foregoing, it is clear that only a High Court has jurisdiction where an alleged breach of fundamental rights of any person has occurred. In court therefore, a Respondent sometimes files a notice of preliminary objection challenging the jurisdiction of a particular High court on the ground that the court lacks the jurisdiction to entertain or hear the case or suit and therefore seeks the court to strike out the suit (though, the striking out of the case or suit means that the Applicant can refile his case or suit afresh in the appropriate court where the alleged violation or breach of his acclaimed fundamental rights occurred, so, it is not a perpetual bar to any further institution of his case or suit in the appropriate court). One other trick that a Respondent devices in the current litigation practice is not to challenge the jurisdiction of the High Court in entertaining the suit at the initial stage of the suit but wait till judgment is delivered and then file an appeal to the appellate court raising the issue of ‘lack of jurisdiction’ of the High Court on law (on the argument that issue of law can be raised at any time for the first time even at the Supreme court of Nigeria, without the leave of the court. The principle of law relied upon herein is as stated by the appellate court as follows ‘It should be noted that the jurisdiction of a Court of law cannot be assumed or implied. It is generally donated by the Constitution or the enabling statute that established the court. Jurisdiction of a court is a fundamental and threshold issue in a proceeding and as such, it can be challenged at any time or stage even for the first time at the Supreme Court. Madukolu v. Nkemdilim (1962) 2 All NLR 581. (Underlining is mine for emphasis). With respect to this, the court in Oloba v. Akereja(1988) 3 NWLR (PART 84) 508 At 520 C – E Per Obaseki JSC, stated that:

“The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is, therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue can be raised at any stage of the proceedings in the court of first instance or in the appeal courts.”) (underlining is mine for emphasis) and therefore seek an order of the appellate court setting aside the decision of the High Court on ground of ‘lack of jurisdiction’. In a number of judicial precedents, appellate courts have been inclined towards setting aside such cases, though some judicial precedents decline setting aside such cases depending on the facts of those cases and the circumstances of those cases (these arguments are, however, not the purport or the subject matter of this paper, hence, I shall not delve into the arguments). The subject of this paper is an opinion and recommendation on the issue of this ‘lack of jurisdiction’ as an argument proffered by a Respondent seeking the striking out of a fundamental rights suit either at the High Court or at the Appellate Court (whereas, in some instances, the Applicant might be held unlawfully and or unjustifiably in a democratic civil society and or without a court remand order sought and or obtained prior to such arbitrary or unconstitutional detention by government security and or law enforcement agencies many of the time). This paper is of the humble opinion that such fundamental rights suit should not be struck out rather, if at the High Court, the High Court either upon the application of the Respondent or suo motu (on the judge’s own decision even after having adjourned to deliver judgment in the suit at the end of adoption of all the court processes by parties) to use its powers of ‘referral’ and or ‘transfer’ to the appropriate court that ought to have jurisdiction or at the appellate court, upon setting aside the suit, to utilize its powers of referral to refer the case to the Chief Judge of the appropriate Court that the appellate court considers to have or likely to have jurisdiction in the matter, hence, this topic. More so, Section 46(2) of the Constitution has empowered a High Court hearing a fundamental rights enforcement suit to make appropriate order(s) it deems necessary or appropriate in any of such instance of the fundamental rights application thus ‘46. -(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter. (underlining is mine for emphasis).

Generally and first of all, as regard the proper Court with jurisdiction to entertain any suit for enforcement of fundamental rights, in the case of FEDERAL POLYTECHNIC BAUCHI & ANOR v. ABOABA & ANOR (2013) LPELR-21916(CA), the Court of Appeal of Nigeria laid down the general principles thus “The Courts vested with jurisdiction to hear and determine allegations of the contravention of any of the fundamental human rights provisions under Chapter IV of the Constitution are as spelt out in Section 46(1) and (2) of the Constitution and Order II Rule 1 of the 2009 Rules. Section 46(1) and (2) of the Constitution provide thus:

– (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.

Order II Rule I of the Rules states as follows:

Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:
Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.

Accordingly, by the combined effect of the above set out provisions of the 1999 Constitution and the Rules, the State High Court and the Federal High Court are conferred with concurrent jurisdiction to adjudicate upon matters of the enforcement of fundamental rights of the citizens of Nigeria. In the case of; Nnabuchi v. I.G.P. (2006) LPELR – 9312, the Supreme Court’s earlier decision in the case of: Jack v. University of Agriculture Maiduguri (2004) 5 NWLR (Pt.865) p. 208 was cited as having laid down the legal principle that, both the State and Federal High Courts have concurrent jurisdiction in fundamental human rights enforcement actions irrespective of category parties.”. Furthermore, In the locus classicus of Madukolu & Ors v. Nkemdilim (1962) 1 ALL NLR 587; the Supreme Court stated the position of the Law on the competence nay jurisdiction of a Court thus:

“Put briefly, a Court is competent when:-

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and

(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(3) The case comes before the Court initiated by due process of Law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is intrinsic to the adjudication.” See A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt 111) 552, Basinco Motors Ltd. V. Woerman – Line & Anor (2009) 13 NWLR (Pt.1157) 149; Owners of M.V. Arabella V. NAIC (2008) 34 NSCQR (Pt.11) 1091 at 1118 Paras, G – H and page 1119 paras. A – F, Timitimi V. Anabebe 14 WACA 374; Adefulu V. Chief Okulaja (1998) 5 NWLR (Pt.550) 435, Adesola V. Abidoye (1999) 2 SCNJ 61 at 79 and Nwaigwe V. Okere (2008) 34 NSCQR (Pt.11) 1357 Paras, B – F. ‘Jurisdiction’ is said to be the authority of a Court like ours to decide matters properly brought before it or to take cognizance of such matters and the limits of the Court’s authority are imposed by Statute or as in the instant case by both Statute and the Constitution. Where for instance the Constitution by Section 245(1) thereof stipulates clearly the extent of the jurisdiction of the Court of Appeal to hear appeals from the Customary Court of Appeal and the particular Grounds of Appeal that are cognizable by the Court from Customary Courts of Appeal, the jurisdiction is said to be limited or circumscribed or restricted to such Grounds as stipulated by the Constitution unless and until such jurisdiction is expanded by an Act of the National Assembly (National Bank of Nigeria Ltd. & Anor V. J. Akinkunmi Shoyoye & Anor (1977) 5 S.C 181 refers). In African Newspapers of Nigeria Ltd & Ors. V. Federal Republic of Nigeria (1985) 4 S.C. (Pt.1) 76 at 122 – 123; Oputa J.S.C., borrowing from the decisions of English Courts like Ashby v. White (1703) Raynor 938 Per Holt, C.J; Peacock V. Bell and Kendall (1667) 1 Sound 74; Abbott, C.J. in The King V. Justices of Devon (1819) 1 Chit Rep. 37; The Two Friends (1799) 1 C. Rob. Ad. Rep. 280 Per Sir William Scott; Kekewich

J, in In Re Montagu (1897) L.R.I C.D. 693 and Queen V. County Court of Lincolnshire and Dixon (1887) L.J. (N.S.) 57 Q.B.D. 137; hinted on the guidelines for the determination of jurisdiction by Courts inter alia:- “The quarrel over the jurisdiction of Courts is by no means new but these quarrels have left certain significant beacon lights to guide the Courts when dealing with jurisdiction of the lack of it:-

Judges ought not to encroach or enlarge their jurisdiction because by so doing the Courts will be usurping the functions of the Legislature.
Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so. And on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged.
Although the Courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation. Courts are creatures of Statute and the jurisdiction of each Court is therefore confined, limited and circumscribed by the statute creating it.
The Court is not hungry after jurisdiction.
Judges have the duty to expound the jurisdiction of the Court but it is not part of their duty to expand it, and
A Court cannot give itself jurisdiction by misconstruing a Statute.”
Now therefore, and also arising from section 46(2) of the Constitution (supra) (and pursuant to Order XV Rule 4 of the FREPR), by Order 49 Rule 2 of the Federal High Court (Civil Procedure) rules, 2019, empowers the Chief Judge to reassign a pending case to another judge of the same judicial division or of any other division (more so, since, Federal High Court is one throughout the Federal Republic of Nigeria). It provides thus ‘A cause or matter may at any stage of the proceeding be re-assigned to another judge of the same division or of any other division by the Chief Judge whether or not the cause or matter is being heard before him’. So, therefore, in my humble submission, a judge of any division of the Federal High Court hearing a fundamental rights suit may either upon a notice of preliminary objection of a Respondent or suo motu (on his own decision) return the case file back to the Chief Judge for transfer to the appropriate judicial division that ought to have jurisdiction (except where the Chief Judge directs the judge hearing the matter or case or suit to continue to entertain the suit or in the opinion of the judge hearing the case, that since the Federal High Court has jurisdiction as one court throughout Nigeria, to continue to hear the case). Also, based on Order 49 rule 3 of the Rule i.e. the Federal High Court (Civil Procedure) Rules, 2019, the judge (hearing the fundamental rights enforcement suit) himself is empowered to refer such case to any other judicial division of the Federal High Court that he considers to have jurisdiction in the suit based on the facts and evidence before the court, relying on Order XV Rule 4 of the FREPR. Also, based on Section 22 of the Federal High Court Act, 2004, the judge may refer or transfer the case to a State High Court or High Court of the Federal Capital Territory that is likely to have jurisdiction in the suit. Still on the provision of Order XV Rule 4 of the FREPR, the High Court of Federal Capital Territory (Civil Procedure) Rules, 2018, empowers the judge of the court hearing such suit to transfer such fundamental rights suit to a court with competent jurisdiction (rather than striking out the suit for lack of jurisdiction). It provides in Order 41 Rule 6 of the Rules thus ‘where a court has no jurisdiction in a cause or matter the judge may be order transfer the cause or matter to a court with competent jurisdiction’. Therefore, such fundamental rights suit may be transferred from any High Court of any of the States to any other High Court of any of the States that is with competent jurisdiction and this in my humble view, accords with the ‘interest of justice’ in fundamental rights enforcement suit. The provision also saves costs of the Applicant from having to refile the suit afresh and or having to pay the lawyer handling his case a fresh legal fee. Furthermore, the appellate court, for instance, the Court of Appeal, may also utilize its powers in regard to transfer of such fundamental rights enforcement appeal to any High Court with competent jurisdiction in the opinion of the appellate court having regard to Order 23 rule 11 of the Court of Appeal Act, 2021, which provides thus ‘the Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including any order as to costs. (2) the powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of the decision’. Furthermore, the Supreme Court of Nigeria is also empowered to utilize the power of transfer in a fundamental rights enforcement appeal in the interest of justice as provided in Order 8 rule 13 of the Supreme Court Rules, 1985, thus ‘on the hearing of any appeal the Court may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below’.

In my humble opinion too, every court of law (High Court or Appellate Court) shall always take cognizance of the ‘overriding objectives of the FREPR’ as stated in the Preamble to the Rules which are as provided as follows especially, as the FREPR has clearly stated and or provided the objectives of the FREPR in its Preamble 1 and 3 thus ‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule. (Underlining is mine for emphasis).

The overriding objectives of these Rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (1) The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system, (ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. (d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented’.

Furthermore, the emphasis that I wish to make here before rounding off on the topic is that of the High Court Judge hearing the fundamental rights suit to suo motu make the transfer order to another High Court that the Judge deems to have competent jurisdiction to hear the fundamental rights enforcement suit rather than striking out the suit. The Court has held that ‘Generally, where as in this case, the court suo motu suspects that it has no jurisdiction to determine an action before him, it is expedient that learned counsel in the proceedings, be invited to address it with respect to the question of its jurisdiction to determine the action, before coming to a decision on the said question of jurisdiction. However, the failure to invite learned counsel to so address the court, does not automatically render such a decision on the question of jurisdiction a nullity, unless it is shown or demonstrated that the decision is not correct or it had occasioned a miscarriage of justice. For instance, see: Olutola v University of Ilorin (2005) All FWLR (pt. 245) 1151, Imah v Okugbe (1993) 12 SCNJ 57; (1993) 9 NWLR (pr. 316) 159 at 178; Kate v Central Bank of Nigeria (1991) 9 NWLR (pt. 214) 126. Therefore, I humbly submit that a Judge of the High Court hearing the fundamental rights enforcement suit has the power to suo motu raise and determine the issue of ‘jurisdiction’ in the suit and to transfer the case suo motu to a High Court of competent jurisdiction that the Judge considers to have jurisdiction (without inviting the Counsel for the parties first to address the court on the issue of jurisdiction) and the Judge’s failure to invite learned counsel for the parties in the suit to address the court on the issue of ‘jurisdiction’, does not automatically render such a decision on the question of jurisdiction a nullity, unless it is shown or demonstrated that the decision is not correct or it had occasioned a miscarriage of justice. In my humble view too, such decision of the court transferring the case may or may not be correct or it may or may not occasion a miscarriage of justice.

Finally, therefore, and most respectfully, it is my humble recommendation that courts should not strike out fundamental rights enforcement suits on ground of ‘lack of jurisdiction’ rather should utilize their powers of transfer and transfer such case to a court of competent jurisdiction, this is in line with the ‘interest of justice’ and much more fulfilling the objectives of the fundamental rights enforcement rules. This will also save costs of the Applicant from having to refile the suit afresh and or having to pay the lawyer handling his case a fresh legal fee.

Email: hameed_ajibola@yahoo.com