Justice Ikpeme: Kunle Edun And Others Reply Cross Rivers House Of Assembly, Ors, Say FHC Can Entertain Fundamental Right Application

Human rights activists, Kunle Edun, Esq., the current Publicity Secretary of the Nigerian Bar Association, Ike Augustine Esq, an Owerri based legal Practitioner, Emmanuel Ewere, O. Adams Ochuagu and Adedapo Adejumo, as Applicants, have filed a Reply to the Preliminary Objection filed against their public interest litigation Suit before the Calabar Judicial Division of the Federal High Court seeking to enforce the fundamental rights of Honourable Justice Akon Ikpeme over the non confirmation by the Cross River State House of Assembly on the discriminatory ground that he poses a security risk, not being an indigene of the State.

The Suit was filed on Friday the 13th Day of March, 2020, with Suit No: FHC/CA/FHR/31/2020.  The date for mention of the Suit is expected to be out on Monday the 16/3/2020.

The Respondents, now Objectors, in the Application are the Speaker of the Cross River State House of Assembly, Cross River State House of Assembly and Government of Cross River State. They had on the 30/03/2020, challenged the jurisdiction of the Honourable Court to hear and determine the Applicants’ substantive application on the following grounds:

That the subject matter of this application does not fall within the provisions of Section 251 of the 1999 Constitution as amended and this court cannot entertain same.

1. The Applicants lack the locus standi to bring this application against the Respondent having regards to the provisions of Section 46(1) of the Constitution

In the Written Address which was made available to TheNigeriaLawyer (TNL), dated 3rd Day of April, 2020 the Applicants adopted the two issues formulated by the Respondents for the determination of the Honourable Court and argued as follows:

• LEGAL ARGUMENT

WHETHER THIS COURT HAS THE JURISDICTION TO HEAR AND DETERMINE THIS APPLICATION SAME NOT BEING ON ANY SUBJECT MATTER PROVIDED FOR BY SECTION 251 OF THE CONSTITUTION

• On this issue, the Respondents have canvassed that this court lacks the jurisdiction to entertain this application on the premise that from the provisions of Section 251 of the Constitution, Section 42(2) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rule 2009, the subject matter which necessitated the Applicants’ application to this Court does not fall within the purview of the court’s jurisdiction and hence, this court cannot entertain this suit.
• We submit most respectfully on the contrary, that upon the enactment of the FREP Rules 2009, the High Courts of the state and Federal High Court enjoy concurrent Jurisdiction in the area of Fundamental Rights enforcement. That is to say, that a fundamental right procedure is sui generis and as such the court in construing the rules enabling this procedure, would have to be more proactive as against any other action. This is because of the special nature the procedure enjoys.
• Section 46 (2) of the Constitution provides that;

“Subject to the provision 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 sections 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” (emphasis mine)

• Furthermore, Section 251(1) of the Constitution provides that

Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters…” (emphasis mine)

• From the above provisions of constitution, we submit vehemently that a combine reading of both sections will reveal that while Section 251 Provides for the general jurisdiction of the Federal High Court, Section 46 (2) equally provides for the special jurisdiction of the court especially as it relates to Fundamental Rights enforcement. This can be gleaned from the side notes to section 46. More so, the phrase in section 251(1); “…and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly…” gives more credence to the special jurisdiction of this court as regards fundamental Rights actions when construed side by side with section 46 (2). Therefore, the provisions of Section 46 (2) of the Constitution conferred additional jurisdiction on the Federal High Court.

• We strongly contend that the subject matter of this application is the Fundamental Rights to Freedom from discrimination of Hon. Justice Akon Ikpeme simpliciter, and whether this court has the jurisdiction to entertain Fundamental rights issues, has been long settled by law and a long line of judicial precedents. The Respondents in contending that this court lacks the jurisdiction to entertain this application relied heavily on the case of Adetona v. Igele General Enterprises Ltd (2011) 7 NWLR (Pt. 1247) 535 at 564 (which is has now been overruled and being an old law) where Muhammad JSC stated that;

“…it is however to be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental rights threatened or breached falls within the enumerated matters on which that court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court.”

• With respect, the above authority supports our contention that this court has the jurisdiction to entertain this application. This is because, the subject matter of this application (Fundamental Rights enforcement) is aptly provided for and enumerated by virtue of Section 251(1) of the constitution which phrase states; “…and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly…” this part of the section makes adequate room for the special jurisdiction of the court on fundamental rights as provided for under Section 46 (2) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, and thus, same is provided for and clothes this court with jurisdiction to hear this application.

THE SUPREME COURT HAS FINALLY SETTLED THE ISSUE AND OVERRULED PREVIOUS CONTRARY OPINIONS.

• Furthermore, while we urge my Lord to discountenance the entire argument of the Respondent on this issue, we refer this Court to the Supreme court authority of JACK v UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR – 1587 (SC) where the court per Uwaifo JSC made the following pronouncements:

“Section 42(1) is a special provision which deals with matters of fundamental rights. It confers jurisdiction on any High Court in a State in matters of Fundamental rights irrespective of who is affected by an action founded on such rights. On the other hand, section 230 (1) (s) of the 1979 constitution (as amended) (now Section251 CFRN 1999 as amended) is a general provision. The Law is that where there is a special provision in a statute, a later general 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… in my view, Section 42 (1) (now Section 46 (1) 1999 Constitution as amended) is intended to give access to an aggrieved party to any High Court in a State where the alleged contravention of his fundamental right has taken place or is about to take place. It is therefore a section which should itself be regarded as special and fundamental.”

• The above decision of JACK v UNIVERSITY OF AGRICULTURE MAKURDI (SUPRA) was heavily relied on in the recent Supreme Court decision in FEDERAL UNIVERSITY OF TECHNOLOGY MINNA V. OLUTAYO (2018) 7 NWLR (PT. 1617) 176 where the Court per Kekere-Ekun, JSC aptly elucidated as follows:

“It also appears that learned counsel for the appellants lost sight of the fact that the suit before the trial Court was sui generis in the sense that it was an application for the enforcement of the plaintiffs/respondents fundamental rights guaranteed under Chapter IV of the 1999 Constitution. Specifically, Section 46(1) & (2) of the Constitution provides:

“46 (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.

It is quite evident that Section 46(1) above refers to a High Court in that State without any restriction. The violation of citizen’s fundamental rights is viewed so seriously that the framers of the Constitution sought to ensure that no fetters are placed in the path of a citizen seeking to enforce his rights. In other words, the provision ensures that he has access to any High Court as long as it is within the State in which the alleged infraction has occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacle placed in the path of enforcing those rights. The Fundamental Rights (Enforcement Procedure) Rules 1979 (applicable at the time the suit was filed at the trial Court) were made pursuant to Section 42(3) of the 1979 Constitution (now Section 46(3) of the 1999 Constitution) and therefore have constitutional flavour. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules defines Court as the Federal High Court or the State High Court.

There is no ambiguity in the provisions of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules referred to above regarding which Court has jurisdiction to entertain an application for the enforcement of fundamental rights. The decision of this Court in the case of Jack Vs University of Agriculture Makurdi (2004) ALI FWLR (Pt.200) 1506 @ 1518 B-D has put the matter to rest in the following dictum of Katsina-Alu, JSC (as he then was) to wit: In the resolution of this issue, I would like to point out that Section 42(1) of the Constitution of the Federal Republic of Nigeria which I have reproduced above has provided the Court for the enforcement of the fundamental rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1 January 1980 defines Court as meaning the Federal High Court or the High Court of a State. What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the judicial division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. (Underlining mine for emphasis) It is noted that the above decision overruled the Court of Appeal decision in Jack Vs University of Agriculture Makurdi (2000) 11 NWLR (Pt.679) 658 relied upon by learned counsel for the appellants where it was held that the Federal High Court has exclusive jurisdiction to determine fundamental rights matters. Under the doctrine of stare decisis the extant position of the law on the issue is as stated in Jack Vs University of Agriculture Makurdi (supra). With due respect to learned counsel for the appellants, had diligent research been done, this issue would not have been raised at all

• Also, EJIMBE EKO, JSC in the same FEDERAL UNIVERSITY OF TECHNOLOGY MINNA V. OLUTAYO (SUPRA)while delivering the lead Judgment at Pg 190-191could not have expressed the law on this issue any better when he stated that:

“Appellants counsel, on Issue 1, had strenuously argued that this case, specifically for the enforcement of the respondents fundamental right to fair hearing, comes under Section 251(1)(q) , (r) & (s) of the 1999 Constitution and therefore distinguishable from the case of GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550 where this Court had held that the High Court of Borno State had jurisdiction, by virtue of Section 42(1) of the 1979 Constitution (in pari materia with Section 46(1) of the extant 1999 Constitution) , to entertain the case filed by students of University of Maiduguri for the enforcement of their right to fair hearing in disciplinary proceedings for misconduct. The GARBA case was also for enforcement of the fundamental rights of some students.

The contention of the appellants counsel is that the named appellants herein are all agents or agencies of the Federal Government and that in the expulsion of the respondent from the University, the appellants were undertaking or had taken executive or administrative action or decision in their official capacities and also within their statutory powers… Section 46(1) of the 1999 Constitution (ipssmaverba with Section 42(1) of the 1979 Constitution) clearly vests concurrent jurisdiction in both the Federal High Court and the State High Court in the matters for the enforcement of citizens fundamental right. A High Court in Section 46(1) of the Constitution and FREP, means and includes the Federal High Court and or a State High Court. Katsina-Alu, JSC (as he then was) had put it succinctly thus in JACK v. UNIVERSITY OF AGRICULTURE (supra) at 1518. In the resolution of this issue, I would like to point out that Section 42(1) of the Constitution of the Federal Republic of Nigeria, which I reproduced above, has provided the Court for the enforcement of the fundamental rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 – defines a Court as meaning the Federal High Court or the High Court of a State. What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may, therefore, be made either to the judicial division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. See also GAFAR v. GOVERNMENT OF KWARA STATE (2007) ALL FWLR (Pt.360) 1415. On this issue, I have no hesitation agreeing with the respondents counsel that the settled position of the law that the jurisdiction to entertain actions for the enforcement of any of the fundamental rights guaranteed by the Constitution in Chapter IV thereof is concurrently vested in the Federal High Court and the State High Court. This is without with prejudice to whether any of the parties is either the Federal Government or an agent or agency of the Federal Government. NEPA v. EDEGBERO (supra) is accordingly inapplicable as it does not deal with enforcement of fundamental rights. On the other hand, GARBA v. UNIVERSITY OF MAIDUGURI (supra); JACK v. UNIVERSITY OF AGRICULTURE (supra) as well as GAFAR v. GOVERNMENT OF KWARA STATE (supra) are very apposite

• My Lord, it is clear from the above cited case of FEDERAL UNIVERSITY OF TECHNOLOGY MINNA V. OLUTAYO (SUPRA) that, the issue of jurisdiction as regards fundamental rights enforcement has been finally laid to rest. The simple import of the decision of the learned Justices of the Supreme Court in the said case is that both the Federal High Court and the High court of a state have concurrent decision to entertain fundamental right application and parties can approach any of the High Courts for redress. This is irrespective of the parties or subject matter. Therefore on the authority of the Supreme Court decision in University of Technology, Minna, Niger State v. Olutayo (supra) once the matter filed in a Federal or State High Court is a fundamental right enforcement action, the jurisdiction of the Courts are not to delimited or excluded by the class of parties sued or by the subject matter limiting provisions of Section 251 of the 1999 Constitution, as amended. This recent decision is in line with the provisions of Order iii rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, headed, LIMITATION OF ACTION which provides that

“An application for the enforcement of fundamental rights shall not be affected by any limitation statute whatsoever”

• My Lord, in all the cases cited by the Respondents to buttress their contention that this Honorable Court lacks the jurisdiction (though now overruled by the decision in University of Technology, Minna, Niger State v. Olutayo) the far reaching effect of the provisions of Order iii rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 were not considered. By virtue of this provision, in so far the action is a fundamental right action; no jurisdictional limiting factor can defeat it. This is also in accord with paragraph “D” of the Preamble to the FREPR which states that

“The Court shall proactively pursue enhanced access to justice for all classes of litigants…”

• We submit that the argument of the Respondents that because the subject matter of this suit is outside the provisions of section 251 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and therefore, this Honorable Court lacks jurisdiction, is a non-starter and misconceived in law, and should be discountenanced in its entirety.
• More so, the position in the University of Technology, Minna, Niger State v. Olutayo case represents a more current position as regards this issue, and when placed with the case of Adetona (cited by the Respondents) the latter in time (F.U.T. Minna v. Olutayo) takes precedence. The law is trite, that where there are two conflicting decision of the Supreme Court, the court is bound to follow the later in time. We refer my Lord to the case of KANU V. ASUZU & ANOR (2015) LPELR – 24376 (CA) where the court stated thus:

“The settled position of the Law is that where there are two conflicting decisions of the Supreme Court the Lower Court or Courts is or are bound by the latter decision and must follow it…”

• We also refer my Lord to the case of CBN V. ZAKARI (2018) LPELR – 44751 (CA)
• We respectfully urge this Court to resolve this issue in favour of the Applicants and dismiss the argument of the Respondents.

WHETHER THE APPLICANTS HAVE THE LOCUS STANDI TO BRING THIS APPLICATION HAVING REGARDS TO THE PROVISION OF SECTION 46 (1) OF THE CONSTITUTION OF NIGERIA 1999 AS AMENDED

• On this issue, the Respondents canvassed that the Applicants lack the locus standi as same not being affected in any way by the decision of the Cross River State House of Assembly, and that the Applicants from the affidavit in support of the Application have not disclosed any interest with regards to the subject matter before my Lord. The Respondents referred to several case laws on the issue of Locus Standi 9which have no bearing with the peculiar facts of this case) in urging this Honorable Court to hold that the Applicants are bereft of the requisite standing to bring this application.
• We reiterate with the greatest respect that fundamental rights procedure is sui genris especially in the area of its liberality in construing the rules enabling it. And as such, much attention has to be given to the purpose and intendment of the framers of the FREP Rules especially the provision as it relates to locus standi.
• Paragraph 3 (e) of the Preamble to the FREP Rules 2009 provides as follows:

“The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or stuck out for want of locus standi. In particular, human rights activist, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:

(i)  Anyone acting in his own interest;

(ii) Anyone acting on behalf of another person;

(iii)Anyone acting as a member of, or in the interest of a group or class of person;

(iv)Anyone acting in the public interest, and

(v) Association acting in the interest of its members or other individuals or groups.”

• From the preamble cited above, it is obvious that this application falls clearly within the words and provisions of the said preamble and thus, embellishing the Applicants with the necessary standing to bring this application. The argument of Respondents in their written address in this regard with due respect, is misconceived. The Applicants have already stated that they are lawyers, public interest and rights activist and the FREPR did not state that the Applicants need to show how this application affects them, when the facts have disclosed that they have brought this right enforcement action as Human Rights activists in the enforcement of the constitutional rights of Hon. Justice Akon Ikpeme to freedom from discrimination.
• The Court in the case of BABALOLA v AG, FEDERATION & ANOR (2018) LPELR – 43808 (CA) per IKYEGH ,J.C.A stated thus:

“The issue of standing to sue was widened by the Supreme Court in Fawehinmi v. Akilu (supra) in 1987 after Adesanya (supra) was decided in 1981 that “it is the universal concept that all human beings are brothers assets to one another” especially in this country where the socio cultural concept of ‘family’ includes nuclear family or extended family which transcends all barriers (to paraphrase Eso, J.S.C, in Fawehinmi v. Akilu (supra). Then in Fawehinmi v. The President (supra) Aboki J.C.A., held inter alia that – “…..since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby the citizen could bring an action in respect of a public derelict. Thus, the requirement of locus standi becomes unnecessary in constitutional issues as it merely impede judicial functions.” (My emphasis). To demonstrate that public spirited litigation in fundamental rights related cases is now the norm, the FREPR 2009 made pursuant to Section 46(3) of the 1999 Constitution and thus clothed with constitutional force expanded the horizon of locus standi in fundamental rights cases in paragraph 3(e) thereof thus – “3(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any nongovernmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: ?(i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii) Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest, and (v) Association acting in the interest of its members or other individuals or groups.”

• Furthermore, the court stated in the case of M.C CHAIN IND. CO. (NIG) LTD v AKEBONO IND. CO. (NIG) LTD & ORS (2018) LPELR – 43934 (CA) as follow:

” The Fundamental Rights (Enforcement Procedure) Rules 2009 is a constitutional Instrument made pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is settled that in the interpretation of any of the provisions of the Constitution, a liberal interpretation of the words must be adopted and the provisions should be read as a whole so as to discover the true intention of the law makers and so that the true intent and objectives of the lawmakers can be achieved. In construing a constitutional instrument like the Fundamental Rights Enforcement Procedure) Rules 2009, undue emphasis must not be placed on technicality, otherwise the intention of the law makers and the objects of the Constitution would be frustrated… In BRONIK MOTORS LTD. & ANOR. V WEMA BANK LTD. (1983) LPELR – 808 (SC) AT 30 – 31 (D – C), the Supreme Court held as follows: “A Constitution is a living document (not just a statute) providing a framework for the governance of a country not only for now but for generations yet unborn. In construing it, undue regard must not be paid to merely technical rules for otherwise the objects of its provisions as well as the intention of the framers of the Constitution would be frustrated…Fundamental right enforcement proceedings is sui generis and governed by the set of rules specifically enacted to govern the proceedings.”

• Equally the Court in the case of OKAFOR v LAGOS STATE GOVT & ANOR (2016) LPELR – 41066 (CA) could not have been more apt when OGAKWU,J.C.A stated the law on this issue in the following words:

“The reasoning of the Lower Court that the relief was not personal to the Appellant seems to have overlooked the liberalization of the procedure and the overriding objectives for enforcement of Fundamental rights and that anybody, not necessarily the person whose right has been infringed can bring the application to enforce the right as stated in Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The Lower Court therefore got it wrong when it struck out Relief 1.3 on the ground that it was not personal to the Appellant and was not within the ambit of the Fundamental Rights Rules.”

• From the decisions cited, one thing runs through all of them, and that is the sui generis nature of the FREP Rules, and the law which permits this application. We state categorically, that the issue of Fundamental Rights is a constitutional issue, and given the nature of this application, the non-confirmation of Hon. Justice Akon Ikpeme by the Respondents on the basis of her origin is of public law and by extension of public interest. The Applicants have sufficiently alluded in both the affidavit to support the substantive application, and their written address that they are Legal Practitioners and Human Rights Activists, and the issue that led to this application is a national issue of public interest, and if left unchecked, would ultimately affect the Applicants who are also citizens of Nigeria. This position clearly puts the applicants within the ambits contemplated by the drafters of the rules.
• On the issue of construing and interpreting the preamble of the legislation vis a vis its applicability and force of law, the court in the case of AG ONDO STATE v. AG EKITI STATE (2001) 17 NWLR (PT. 743) 706 at 768 had this to say:

“In interpreting the constitution or a Decree amending it, the court should take into serious consideration the preamble of the Decree and objects and purposes of the provision sought to be interpreted…”

• The Supreme Court also stated in the case of COCACOLA (NIG) LTD V. AKINSANYA (2017) 17 NWLR (PT. 1593) 74 at 165 as follows

“Historically, courts excluded titles of statutes when construing them. But the current trend is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general scope…”

• We submit that the applicants have the requisite standing by virtue of Paragraph 3 (e) of the Preamble to FREP Rules 2009 to institute this application, and we urge my Lord to look critically on the intendment of the framers of this statute and resolve this issue in favour of the Applicants.

CONCLUSION

• On the whole, the Applicants submit that this Honourable Court is abundantly clothed with the requisite jurisdiction to hear and determine this application. We therefore, urge my Lord to dismiss the objections of the Respondents as same is hinged on undue technicalities which is a deliberate ploy calculated to dissuade this Honorable Court from considering the substantive application on the merit.
• We so urge My Lord.

Counsel for the Applicants are:

Femi Falana, SAN

Daniel K. Kip, Esq.(signed)

Assam A. Assam, Esq.

Emma A. Assam

Miller Ojong Esq.

1. G. Ofem Esq and

Martins Emokpaire