By Ekuma, Chinonso G.

In every suit, jurisdiction is a fundamental issue which goes to the root and substance of the matter where courts lacks same. Jurisdiction is therefore highly priced that it is akin to breath which sustains the life of a suit.

Therefore, a suit will be suffocated when it is found that a court is acting without it, and the matter dies off, this is unlike other irregularities that may ordinarily be cured. Hence, even parties by their own agreement can not confer jurisdiction on court when it lack same. See generally the locus classicus of, Madukolu V. Nkemdilum (1962) 1 ALL NLR 587. Overtime, High Courts in Nigeria have been overwhelmed by conflicting decisions of the Supreme Court and Court of Appeal as to it’s status in entertainment of fundamental rights matters originally, this article therefore seeks to find a soft landing in reconciling the jurisdiction of both courts in entertaining fundamental rights actions in Nigeria.

Enforcement of Fundamental Rights actions are Sui generis. They are special class of action and the Fundamentals Rights Enforcement Procedure (FREP) Rules 2009, was made pursuant to Section 46(3) of the Nigerian Constitution 1999 as amended, to provide procedures for enforcement of the provisions of Chapter IV of the Constitution. The rule has full constitutional flavour being an extension of the Constitution. The court by way of obiter in Abia State University, Uturu v Chima Anyaibe (1996) 1NWLR (or 439) 646, stated that the FREP Rules have the same force with the Constitution itself and for the court to have jurisdiction the provisions of the Rules must be complied with.

For clarity, section 46(1) of the Constitution of Nigeria 1999 as amended provides that “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.

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 and securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter. See also Order II Rule I of the 2009 FREP Rules which also vested jurisdiction on the High Court.

Since the enactment of FREP, there has been confusion as to which of the High Courts should have original jurisdiction over some fundamental rights action. This confusion is however promoted by Order I Rule II of the FREP Rule which defined courts having jurisdiction to mean the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.

The position of the Apex court in part regarding the court that has original jurisdiction to entertain some fundamental rights action is that both the High court and the Federal High Court each will entertain fundamental rights enforcement actions based on the subject matter clearly spelt out within it’s jurisdiction, i.e Sections 251 and 272 respectively, specifying the subject matters to be handled by each of the Courts. And any attempt to the contrary will be frowned at, and such decision will not see the light of the day on appeal by the adverse party. This view seemed to stir up controversies as the Supreme Court has since given conflicting decisions on this matter.

The first controversy reared its ugly head in the case of Bonik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 296, where the Supreme Court held that both the Federal High Court and State High Court have concurrent jurisdiction over the fundamental right of the applicant allegedly violated.

Later on in Turkur v Government of Gongola State (1989) 4 NWLR (pt 117) 517, where the applicant filed action in the Federal High Court of Kano State to challenge his deposition as the Emir of Muri as breach of his fundamental rights. The Supreme Court per Obaseki JSC (as he then was) in a seemingly contradictory judgement held that the Federal High court had no jurisdiction over chieftaincy matter which was the basis upon which the alleged right was breached.

On the contrary, the Supreme Court departed from its earlier decision in Grace Jack v University of Agriculture, Makurdi (2004) 5 NWLR (pt 865) 208 and held that the High Court of Benue State properly exercised it’s jurisdiction to hear a matter for the enforcement of fundamental rights of the applicant. The applicant was employed by the respondent, University of Agriculture, Makurdi as a clinic attendant. She was later transferred to the bursary department of the respondent’s University. She was thereafter indicted by a panel of enquiry over her involvement in collection and issuance of receipts for fees from Students and she was dismissed from employment. That was why she brought an action for the enforcement of her Fundamental rights from wrongful dismissal and other ancillary reliefs.

It is essential to point out that the import of the Supreme Court’s decision in Jack’s case is to the effect that Fundamental rights action stand tall above the provisions of Section 251(1) of the Constitution 1999 as amended. So, whenever an action is brought in pursuance to matters covered by Chapter IV of the Constitution involving Federal government and it’s agencies, both the Federal High Court and the High Court of a State shall have jurisdiction. The decision in fact, narrowed down the areas in which the Federal High Court and State High Court have concurrent jurisdiction in enforcement of fundamental rights action.

Similarly, in 2013, the Court of Appeal in the case of NDLEA v Babatunde Omidina (2013) NWLR, followed the principle established in Tukur’s case to hold that it is the Federal High Court and not the High Court of a State that has jurisdiction over the applicat’s relief. In reaching at this decision, however, the Court of Appeal considered the fact that the High court ordinarily would not hear the main suit assuming it should be brought before it, same being in the exclusive list of the federal high court. Although this matter is currently on appeal to the Supreme Court, I am optimistic that the Supreme Court would follow their decision in Jack’s case.

Accordingly, the supreme Court in the most recent case of ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) v. WOLFGANG REINL (2020) LPELR-49387 (SC) adopted the view in Jack v. University of Agriculture Makurdi (Supra) to hold that so long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, have concurrent jurisdiction to entertain it.

The brief facts of the case is that the applicant being an Austrian national, who has been married to a Nigerian woman and has lived with her in Nigeria for more than 20 years, was arrested on 28th December, 2015 on allegation of money laundering over contracts awarded to his company by the office of the National Security Adviser. He denied any fraudulent dealing and informed the operatives of the EFCC that in fact he had outstanding payments due to him in respect of completed contracts, which had been verified by the office of the National Security Adviser. He averred that in spite of investigations, which confirmed that there was no wrong doing on his part, the appellant ordered his detention at their facility on December 28, 2015, where he remained without being charged to Court until February 5, 2016.

He averred that in the course of executing the search warrant in his home, various documents belonging to his businesses, his international passport and items belonging to his wife and brother-in-law, such as their mobile phones, were confiscated. He also averred that access to his bank accounts was restricted and he was placed on a watch list and no fly list. That the confiscation of his international passport and restriction of access to his bank accounts had damaged his reputation, affected his business and traumatized him.

The appellant on the other hand contended that the respondent was merely arrested for questioning following its investigation into the ill-fated arms deal by the office of the National Security Adviser, pursuant to which it was discovered that huge amounts of money were traced to companies in which the respondent is the alter ego. It denied detaining the respondent or confiscating his international passport.

The respondent being the applicant in the court of first instance, brought an action for the enforcement of his fundamental rights by way of originating motion at the High Court of the Federal Capital Territory (FCT). The appellant also filed a Preliminary Objection challenging the jurisdiction of the said High Court to entertain the suit. The High Court held that it had the jurisdiction to entertain the suit and dismissed the preliminary objection forthwith. The appellant were dissatisfied and thereafter appealed to the Court of Appeal who upheld the decision of the trial court and their subsequent appeal to the Supreme Court was also dismissed. But in arriving at it’s decision the Supreme Court considered critically one of the issues for determination bordering on the jurisdiction of the High Court to entertain the matter and whether the learned Justices of the Court of Appeal did not err in law in upholding the decision of the trial Court when they held that the trial Court had jurisdiction to entertain the suit.

The learned counsel to the appellant submitted that the Economic and Financial Crimes Commission (EFCC) is an agent of the Federal Government, having been created by an Act of the National Assembly via the EFCC (Establishment) Act, 2004. He referred to Sections 1(i) and 6(b) and (h) of the Act. He submitted that by the combined effect of Sections 251 and 257 of the 1999 Constitution, as amended, exclusive jurisdiction is vested in the Federal High Court in the civil causes and matters set out in Section 251(1)(a) to(s) thereof, which includes suits seeking to challenge the administration management and control of the Federal Government or any of its agencies. He submitted that the suit falls within the exclusive jurisdiction of the Federal High Court notwithstanding the provisions of Section 46(1) and (2) and Section 272(1) of the Constitution which gives the state High Courts, the Federal High Court and the High Court of the FCT concurrent jurisdiction in matters of enforcement of fundamental rights.

The learned counsel to the respondent submitted that the appellant misconceived the effect of Sections 251 and 257 of the constitution. He submitted that there is nothing in those Sections, which suggests that being an agency of the Federal Government of Nigeria, the appellant cannot be sued for the enforcement of fundamental rights in the High Court of the Federal Capital Territory or the High Court of a State. He noted that the substance of the respondent’s claim was his right to personal liberty and freedom of movement. He submitted that contrary to the appellant’s contention, what the respondent was challenging was his detention by the appellant from December 28, 2015 to February 5, 2016 and not the administration or management and control of the EFCC; nor the operation and interpretation of the constitution as it affects the EFCC, nor is it seeking a declaration or injunction affecting the validity of any executive or administrative action or decision by the Commission.

He submitted that the learned appellant’s counsel misconceived the decision of the Supreme Court in Jack V. University of Agriculure, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112.

In resolving this issue, the Court held that the appellant’s conception of the import of Section 46(1) of the Constitution is erroneous. The provisions are clear and should be given their natural and ordinary meaning. That a careful examination of the respondent’s claim shows clearly that he is not challenging any administrative or executive act or the management and control of the appellant. He is alleging infringements of his fundamental rights guaranteed under the Constitution. The Court held that the case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112, interpreted Section 46(1) of the 1999 Constitution to the effect that where both the State High Court and the Federal High Court exist in a State, they have concurrent jurisdiction in matters pertaining to fundamental rights. Thus, it is an error to hold that when a suit in respect of matters of fundamental right was brought against the Federal Government or any of its agencies, Section 230(1) (s) of the 1979 Constitution (as amended) prevailed over Section 42(1). That there is no ambiguity in the provisions of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules regarding which Court has jurisdiction to entertain an application for the Enforcement of fundamental rights. The Court adopted the view in Jack v. University of Agriculture Makurdi (Supra) that so long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, have concurrent jurisdiction to entertain it.

It is submitted that this judgement is laudable. It is another landmark decision which points to the fact that technicalities should not override substantial justice. The Supreme Court Per O.O ADEKEYE, J.S.C (as he then was) in OLORUNTOBA-OJU & ORS. V. ABDUL-RAHEEM & ORS (2009) LPELR SC.75/2007 in (Pp.33-34, Paras F-B) has this to say: “I must repeat the clarion call that courts nowadays denounce judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this all forms of technicalities which will act as a detriment to the determination of the substantial issues between litigants must be shunned…it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit.” See also, ADEBESIN v. STATE (2014) LPELR-SC.119/2010.

We also submit that in view of the fact that fundamental rights actions stand taller than all manner of actions, the issue of comperative jurisdiction discrepancy between the two High Courts should be reconciled in favour of equity or substantial justice. Whenever a matter bordering on breach of fundamental rights are brought before any of the High Courts in Nigeria, same being the main claim, the High Courts are enjoined to affirm jurisdiction, irrespective of what gave rise to such breach. Whether or not the main claim can be validly or otherwise entertained by it. Provided the suit is properly brought solely to enforce any of the provisions contained in Chapter IV of the Constitution. The issue of whether or not it is the main claim does not ordinarily arise since fundamental rights action are special with it’s special procedure for commencement and dispensation, hence, do not require filing of pleadings, in which case it will be delving into the main claim.

Usually, although depending on the jurisdiction, actions for the enforcement of fundamental rights are commenced by Originating Motion, (this is as provided in FREP Rules, see Order II Rules 2 – 7) accompanied by a supporting statement, setting out the particulars and grounds upon which the application was brought. Such an application is also accompanied by a verifying affidavit with annexures (exhibits) if any and a written address. Now, it is this verifying affidavit and the exhibits that form the major evidence before the court. When the motion is filed and served on the respondent(s), they are expected to file a counter affidavit in opposition to the motion with written address and the applicant will thereafter file a further affidavit in opposition to the counter affidavit of the respondent with a written address on point of law, if there are new issues raised by the respondent which he needs to reply. After this, the matter will be set down for hearing in which stage the parties are expected to adopt their addresses and arguments will be taken by way of adumbration. We have to go down the memory lane to establish that fundamental rights actions are done differently, and at any point does not ordinarily require going into the main claim, except for trying to establish whether there was a breach of the applicant’s fundamental right as alleged. Therefore, in order to avert unnecessary hardship on the part of the applicant, the court ordinarily should look at the verifying affidavit of the applicant and the exhibits annexed thereto to determine if the action actually revealed facts which qualify for the mode in which it was commenced. If it is satisfied that the suit will likely be contentious, it should order that the right thing be done i.e ordering that pleadings be filed etc. And in alternative, where filing of pleadings shall be needed and the main suit being a subject matter such a court is not allowed to handle, can transfer such a matter to the appropriate court. For instance, High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, made such a provision in Order 41 rule 6 It states- “Where a Court has no jurisdiction in a cause or matter the Judge may by order transfer the cause or matter to a court with competent jurisdiction.” This rule, to mind supports internal transfer of case only and not from state to state. The Court of appeal per Yahya J.C.A stated in the case of APC & ANOR v. ODEY & ANOR (2019) LPELR-CA/A/123/2019 that section 22(3) vests in the High Court of a State the power to transfer the matter to the appropriate Judicial Division of the Federal High Court. The said section is reproduced as follows: 22(3) , Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include power to make rules of court for the purposes of this subsection.”

Accordingly, the court can also apply a Blue Pencil Rule on the parts of the relief which offends the mode in which such an action was commenced. By doing so, it will strike out those reliefs. See generally, NEPA V. ALLI & ANOR (1992) LPELR-SC.12/1990 where the Supreme Court Per NNAEMEKA AGU, J.S.C. (as he then was) in P. 29, paras. C-D stated on application of Blue Pencil Test, thus: “The so-called blue pencil rule prescribes that if a point is successfully attacked the court should, as it were, run a blue pencil across it and see whether the other grounds which have not been successfully attacked can sustain the decision appealed from. If they are, the court will still dismiss the appeal.” See also IDOKO v. IDOMA AREA TRADITIONAL COUNCIL & ORS (2019) LPELR-CA/MK/55/2014, where the court of appeal stated that “This Court will apply the “Blue Pencil Rule” or the “Blue Pencil Test” and excise the aspects of the decision of the learned trial Judge that was substantially wrong or that has occasioned a miscarriage of justice.”

Conclusion

Reconcilling concurrent jurisdiction of High Courts in entertaning fundamental rights action in Nigeria will lead to an efficient justice delivery and enthronement of rule of law as litigants will approach any of the High Courts with confidence knowing same to posses jurisdiction to hear their matter, when it borders on breach of fundamental rights. Above all, it will lead to certainty and clears ambiguity as to which of the High Courts should ordinarily have original jurisdiction.

This article was written by Ekuma, Chinonso G., chinonsogeorge@gmail.com, 08143576372 Life intern at St. Sen Solicitors, Abakaliki.