CORAM
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JUSTIE COURT OF APPEAL
ZAINAB ADAMU BULKACHUWA, JUSTIE COURT OF APPEAL
ALBERT GBADEBO ODUYEMI, JUSTIE COURT OF APPEAL
PARTIES
APPELLANTS
INSPECTOR-GENERAL OF POLICE & ANOR
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, FUNDAMENTAL RIGHTS, JURISDICTION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant was arrest on 10/3/97 by men of the Criminal Investigation Department Force Headquarters of the Nigerian Police Force, Abuja, and subsequently detained sequel to a formal complaint, by one Wale Opeyemi from Lagos made in 1995, on the claim that the Appellant was indebted to him to the tune of N922, 000.00 and had only paid N200, 000.00, before the formal complaint and the police was used to collect the balance. That the Appellant was detained from the 10/3/97 up to today 23/10/97, hence, the Appellant filed a motion Ex=parte before the High Court of Justice F.C.T., Abuja to enforce his Fundamental Rights pursuant to the Fundamental Rights Enforcement Rules Cap 62, Laws of the Federation of Nigeria 1990, seeking for the enforcement of his Fundamental Rights and for his absolute release or release on bail. The Respondents filed a Notice of preliminary objection challenging the jurisdiction of the court to entertain the application in view of the combined effect of the provisions of Section 230 (1) (S) of Decree No. 107 and Section 42 of the 1979 Constitution as amended. That the jurisdiction to entertain application for leave to enforce the Fundamental Rights of individual has been exclusively vested on the Federal High Court. In its ruling, the Lower Court dismissed the Appellant’s application for leave to enforce his Fundamental Rights, on the ground that it had no jurisdiction to entertain the matter. Aggrieved by the decision of the lower Court, the Appellant lodged an appeal in the Court of Appeal, Abuja vide a Notice of Appeal containing three Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
1. Whether by virtue of S. 230 (1)( s) of Decree 107 of 1993, and S.42 of the 1979 Constitution, the jurisdiction of the High Court of FCT Abuja as it concerns the enforcement of Fundamental Rights has been taken away and vested exclusively on the Federal High Court.
2. Whether the order of dismissal made by the lower court was the appropriate order after holding that it had no jurisdiction.
RATIONES DECIDENDI
ENFORCEMENT OF FUNDAMENTAL RIGHTS– COURTS WITH ORIGINAL JURISDICTION TO HEAR ACTIONS ON THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
“Pursuant to the provisions of Section 42 (3) of the 1979 constitution, the Chief Justice of Nigeria made rules for the enforcement of Fundamental Rights i.e. “Fundamental Rights (Enforcement Procedure) Rules 1979, wherein by the provisions of Order 1 Rule 2, court was defined as “Court means the Federal High Court or the High Court of a State.” It is pertinent to state that it is trite that rules made pursuant to the Constitutional Provisions also possess constitutional flavour.
It is equally important to observe that both learned counsel agreed, on authorities, that these provisions of section 42 supra were preserved by Decree 107 of 1993. It follows therefore that the unsuspended provisions of the 1979 Constitution i.e Section 42 thereof and Decree 107 of 1993 operates simultaneously as the organic laws of the country. See the case of the Military Governor of Ondo State and Anor. v. Adewunmi (1988) 6 SCNJ 151 at 157; (1988) 3 NWLR (Pt.82) 280 SC where the Supreme Court per Nnaemeka-Agu JSC in the interpretation of Decree 1 of 1984, which is similar to Decree 107 of 1993 held as follows:-
“It appears clear to me that by these provisions, it is the intendment or Decree No. 1 of 1984 that the Organic laws of Nigeria shall be:-
1. Decree No. 1 of the 1984 or any other Decree, and
2. Unsuspended Section of the Constitution of the Federation. It follows from this that whatever is in accord with the above provisions is intended by the Decree but whatever is in conflict with it is unconstitutional.”
That being the case, it is therefore my view that the specific provisions made by the 1979 Constitution and preserved by Decree 107 of 1993 for the enforcement of the 1979 Constitution supra. Moreso, when this section confers original jurisdiction on the High Courts, which has been defined by the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 as including ‘High Court’ and ‘Federal High Court’. See Nemi v. The State (1994) 10 SCNJ 1 at 20 where the Supreme Court, per Bello CJN, (as he then was) held as follows:-
“The second category of the Fundamental Rights comprise those rights that are enforceable by the High Courts under Section 42 of the Constitution. Because the Constitution Expressly Confers Original jurisdiction for their enforcement on High Courts, this court has no jurisdiction as a Court of first instance over them:’
(Italics mine for emphasis)
I have closely and carefully too considered the provisions of Section 230(1) of Decree No. 107 of 1993 and after serious analysis of it I respectfully arrive at the following conclusions:-
“(1) That the said section does not in any way inhibit the operations of Section 42 of the 1979 Constitution, since in law there can be no repeal of a Constitutional Provisions by implication.
(2) The said Section 230 is a general provisions relating to the jurisdiction of the Federal High Court, while Section 42 of the 1979 Constitution relates to a specific jurisdiction for the enforcement or the Fundamental Human Rights provided for in Chapter IV of the 1979 Constitution. The position of the law is that where there are enactments, one making general provisions and the other specific provisions on a subject matter, the specific provisions are construed to be excluded by implication from the general provisions – See the case of Governor of Kaduna State v. Kagoma (1982) 6 S/C 87 at 107-108. Falayi Williams CJN (as he then was) states thus;-
“Before answering this question, I must point out that it is now trite that where there are two enactments, one making general provisions, as in the case of the provisions of Section 2 of the Commission of Inquiry Law (Cap. 25) and the other making specific provisions, as in the case or the provisions of Section 98 of the Local Government Law (No.1 of 1977), the specific provisions are, by implication, excluded from the general provisions.”
See also Section 251 (1) of the 1999 Constitution.
I therefore hold that both the High Court and the Federal High Court have concurrent and contemporaneous jurisdiction to enforce the Fundamental Rights provided for in the constitution in case of a breach. – PER M. S. MUNTAKA-COOMASSIE, J.C.A
JURISDICTION OF COURT – PROPER ORDER TO MAKE WHERE A COURT LACKS JURISDICTION TO ENTERTAIN A MATTER
“It is my view that this issue (issue No.2) does not deserve much dissipation and evaporation of energy, the order to make where a court declines jurisdiction in a matter is that of striking out. I rely on the cases of:-
(a) Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Part 145) 420 at 423 and;
(b) Ezeonu v. Agheze (1991) 4 NWLR (Part 187) 631.
Finally, this issue had been settled by the Supreme Court in the case of Leonard Okoye&Ors. v. Nigeria Construction & Furniture Company Ltd. (1991) 6 NWLR (Pt.199), 501; (1991) 7 SCNJ 365/388-389 per Akpata JSC (of blessed memory) as follows:-
“I now turn to the question of whether the trial court was right to have dismissed the suits of the appellants or whether the majority decision of the Court of Appeal substituting an order of striking out the suits was proper in the circumstances. Although, Order 29 Rule 3 States that the court shall either dismiss the suit or order the defendant to answer the plaintiff’s allegation of fact. I am in agreement with Oguntade and Uwaifo JJCA, that the proper Order to make in the circumstance was an order striking out the plaintiff’s suits for lack of jurisdiction. While Rules 1 and 2 of Order 29 are applicable to this case, Rule 3 is inapplicable since the defence of the defendants was that the court had no jurisdiction and the court so found, The reason is that where a court hold that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it out. Striking out will enable the plaintiff certain case to file his action in the appropriate court with jurisdiction. (Italics mine for emphasis).
– PER M. S. MUNTAKA-COOMASSIE, J.C.A
ENFORCEMENT OF FUNDAMENTAL RIGHTS – COURTS WITH ORIGINAL CONCURRENT JURISDICTION ON ENFORCEMENT OF FUNDAMENTAL RIGHTS
“Section 42 of the Constitution of the Federal Republic of Nigeria 1979 which has been fully quoted in the lead judgment gives to any person who alleges that provisions of Chapter IV of that Constitution which deals with Fundamental Rights have been, is being or likely to be contravened in any state in relation to him may apply to the High Court in that State for redress. It also confers on a High Court original jurisdiction to hear and determine any application made to it pursuant to the provisions of the section to make any orders, issue any writs and give such directions as it may consider appropriate for the purpose of seeking the enforcement within that State of any right to which the person who makes the application may be entitled to under the chapter.
In Section 277, ‘High Court’ is defined to mean the Federal High Court or the High Court of a State.
Similarly the word “Court” is defined in Section 1 of the Fundamental Rights (Enforcement) Rules S. 1. No. 1 of 1979 made by the Chief Justice of Nigeria pursuant to subsection 3 of Section 42 of the Constitution as meaning the Federal High Court or the High Court of a State.
It is apparent therefore that in the intendment of the Constitution of the Federal Republic of Nigeria, 1979 both the Federal High Court and the High Court of a State were given concurrent jurisdiction in respect of the enforcement by a person in the State of any violation or threatened violation of his fundamental rights conferred by Chapter IV.
The Constitution of the Federal Republic of Nigeria, 1979 as suspended by the Constitution of the Federal Republic of Nigeria (Suspension) Decree 1993 in it Section 1(1) is restored and amended as set out in Decree No. 107 of 1993.
By subsection (2) the provisions of the said 1979 Constitution mentioned in the 1st schedule were suspended.
It is noteworthy to mention that Section 42 of the 1979 Constitution was excluded from the 1st schedule and was thereby saved.
Section 1 (3) of the Decree also provides that the provisions of the said constitution which are not suspended by subsection (2) of section 1 shall have effect subject to the modifications specified in the 2nd schedule. The modification made to section 42 is stated thus:
“In subsection (1) for the word “Any” there shall be substituted the words “subject to the provisions of this Constitution, as amended, modified or otherwise affected by the Constitution (Suspension and Modification) Decree, 1993 or any other Decree”
While in subsection (4) for the words “National Assembly” where they twice occur there shall be substituted the words “Federal Military Government.” The bone of contention seems to be in the provision of the amendment to Section 230 of the Constitution contained in the 2nd schedule thus:
“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters arising from:-
(r) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and
(s) any action or proceedings 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.
Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this 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.
It is clear from the above that while Section 42 is a Decree specially conferring specific original jurisdiction on the High Court in respect of the rights conferred under Chapter IV of the Constitution, the provisions of Section 230(1(r) and (s) relate to general jurisdiction of the Federal High Court affecting the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of it agencies and any action or proceeding affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies but saving in favour of persons, the right to seek 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. It is my respectful view that an action for the enforcement by a person of his fundamental rights is an action based upon an enactment i.e. it is based on the provisions of Chapter IV of the 1979 Constitution. PER A. G. ODUYEMI, J.C.A
PRINCIPLE OF INTERPRETATION OF STATUTES – INTERPRETATION OF THE CONSTITUTION ON THE CONCURRENT JURISDICTION OF STATES HIGH COURTS AND OF THE FEDERAL HIGH COURT OVER MATTERS CONCERNING THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
“It is a cardinal principle of interpretation of statutes that it is presumed that a statute does not create new jurisdiction or enlarge existing ones: that express language is required if an Act is to be interpreted as having this effect.
Furthermore, the Earl of Selborne, L.C. in the case of Vera Cruz (1884) 10 App. Cas, 59 p 68 opined thus:
“If anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so,”
See Maxwell on The Interpretation of Statutes, 12th Edition by P. 51. J. Langan at pp 159 and 160.
I am unable to find in the words of the 2nd schedule to Decree 107 of 1993 any clear words intended to remove the concurrent jurisdiction of States High Courts and of the Federal High Court over matters concerning the enforcement of fundamental rights and I am not prepared to presume any such intention without clear and express words.
I am further fortified in this opinion by a consideration of S.233 of the 1979 Constitution in the said Decree in its insertion of Section 233A – relating to the High Court of the Federal Capital Territory Abuja, the court from which this appeal emanated.
Section 233(A) (6) and (7) read thus:-
(6) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the High Court of the Federal Capital Territory, Abuja shall have the same jurisdiction as the High Court of a State.
(7) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court shall have unlimited jurisdiction to hear and determine any Civil Proceedings in which the existence or extent of a legal right, power, duty, liability, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
It is clear that not only is the High Court of the Federal Capital Territory, Abuja conferred with similar jurisdiction to those of States High Courts, there is no doubt, that in matters of the enforcement of a persons fundamental right’s be it against another person, authority or against a State or a Federal Government Agency, it has, like the High Court of a State concurrent jurisdiction with the Federal High Court. – PER A. G. ODUYEMI, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1979 (as amended)
2. Court of Appeal Rules 1984 as amended
3. Decree No. 107 of 1993
4. Fundamental Rights Enforcement Rules Cap 62, Laws of the Federation of Nigeria 1990