In The Supreme Court of Nigeria
On Friday , 5th day of September, 1989
SC 196/1987
Between
Alhaji Umaru Abba Tukur ....... Appellant
And
The Government of Gongola State ....... Respondent
Judgment of the Court
Delivered by
Obaseki, J.S.C.
This appeal raises the question of the extent of the jurisdiction of the Federal High Court in matters dealing with breaches and enforcement of the Fundamental Rights provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979. Access to a High Court in any State in the Federation is guaranteed by section 42(1). This sub-section (1) of section 42 expressly 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.
High Court is defined in section 277 of the 1979 Constitution as the Federal High Court or the High Court of a State. As sub-section (1) of section 42 of the 1979 Constitution only gives access to a High Court for relief, it is necessary to aseertain whether the Federal High Court has jurisdiction to entertain the matter which warrants the enforcement of the fundamental right. The answer to the question of jurisdiction is provided by sub-section (2) of section 42 which reads:
Suhject to the pro visions of this Constitution, a High Court shall have original junsdiction to hear and determine any application made to it in pursuance of the provisions of this section and make such orders, issue such writs, and give such directions as it may consider app rop nate for the purpose of enforcing or securing the enforcement within that State of any rights to which the p erson who makes the application may be entitled under this Chapter. (Italics mine)
Proceedings in this matter were commenced in the Kano Judicial Division of the Federal High Court by the appellant when he filed in that court a motion exparte for leave to apply for an order enforcing Fundamental Rights. Upon the grant of leave to apply, the appellant filed his motion dated 28th day of August, 1986. As the motion sets out in full a statement of the orders prayed for, I will set it out in full for the purpose of this judgment. It reads:
Motion On Notice
For an Order Enforcing Fundamental Rights
Order2 Rule 1(1)
TAKE NOTICE that pursuant to the leave given by the Hon. Justice Babatunde Belgore on the 25th Day of August, 1986, this Honourable Court on Monday, the 8th day of September, 1986, at the hour of 9 o'clock in the forenoon or so soon thereafter as the applicant or counsel on his behalf can be heard, will be moved for an order or Orders:
(1) quashing THE DEPOSITION (of the Emir of Muri, ALMAJI UMARU ABBA TUKUR) Order 1986 dated the 12th Day of August, 1986, made by Col. Y. A. Madaki, Military Governor of Gongola State removing the Applicant from office as Emir of Muri on the following grounds:
(i) That the said order violates the fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, (hereinafter referred to as the ~Constitution') in that the applicant was never given the opportunity of being heard before the said order was made nor given any notice of misconduct pertaining thereto, let alone particulars thereof;
(ii) That the conditions precedent to the exercise of the powers of deposition by the Military Governor under section 6 of the Chiefs (Appointment and Deposition) Law, Cap. 20, Vol.1 Laws of Northern Nigeria, 1963, applicable to Gongola State not having been satisfied renders the said order null and void and of no legal effect; and
(iii) That the said Order having been purportedly made pursuant to section 1(1)(d) of Decree No. 17 of 1984, is void ab initio and not applicable to the applicant since the applicant is not an employee of the Jalingo Local Government Council as envisaged by the said Decree, nor could it be said that he is in the public service of Gongola State within the meaning of the said Decree, being a traditional and or natural ruler.
(2) Fora declaration that by virtue of paragraphs 1(1) to 1(iii) (supra), that the applicant is sti~ the Emir, Jalingo L.G.A. and is entitled to all rights and privileges pertaining thereto;
(3) For a further declaration that the applicant's detention from the 12th day of August, 1986 in a Government Lodge, Yola, by the Militiary Governor aforesaid is without any justifiable cause whatsoever and constitutes a further violation of his fundamental rights as enshrined in section 32(1) of the said Constitution.
(4) For another declaration that being an Emir or a traditional ruler does not derogate from the applicant's rights to freedom of movement throughout Nigeria as guaranteed by section 38(1) of the Constitution aforesaid.
(5) For a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant as guaranteed by Chapter IV of the said Constitution except in a manner prescribed by law and
(6) For aggravated and exemplary damages against the Military Governor for wrongfully infringing applicant's fundamental rights aforesaid.
and for such other order or orders as the court may deem just.
This application was supported by a 13 paragraphs affidavit sworn to by Musa Chindo, a brother-in-law of the appellant. It is also necessary to set out the statement made in support of the application for leave to apply for an order enforcing Fundamental Right as it contains the reliefs sought and the grounds for the applications. It reads:
1. The applicant is Alhaji Umaru Abba Tukur, OFR., Farmer of Emir's Palace, Jalingo, Muri, Gongola State;
2. The reliefs sought are:
(a) an order quashing the Deposition (of the Emir of Muri, Alhaji Umaru Tukur) Order 1986 dated the 12th day of August, 1986, made by Col. Y. A. Madaki, Military Governor of Gongola State removing the applicant from office;
(b) a declaration that the applicant's detention from 12th August, in a Government Lodge, Yola, by the Military Governor aforesaid is without any justifiable cause whatsoever and constitutes a further violation of his fundamental rights as enshrined in section 32(1) of the said Constitution;
(c) a further declaration that being an Emir or a traditional ruler does not derogate from applicant's right to freedom of movement throughout Nigeria as guaranteed by section 38(1) of the Constitution aforesaid;
(d) a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant as guaranteed by Chapter 4 of the said Constitution except in a manner prescribed by law; and
(e) aggravated and exemplary damages against the said Military Governor for wrongfully infringing applicant's fundamental rights as aforesaid and for such other order or orders as the court may deem just.
3. The grounds on which the reliefs are sought are as follows:
(1) That the said deposition order violates the fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, as amended, in that the applicant was never given the opportunity of being heard before the said order was made, nor given any notice of misconduct pertaining thereto, let alone particulars thereof;
(2) That the conditions precedent to the exercise of the powers of deposition by the Military Governor under section 6 of the Chiefs (Appointment and Deposition) Law, Cap 20, Vol.1, Laws of Northern Nigeria, 1963 applicable to Gongola State, not having been satisfied renders the said order null and void and of no legal effect; and
(3) That the said order having been purportedly made pursuant to section 12(1)(d) of Decree 17 of 1984 is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is an employee of the Jalingo Local Government Council as envisaged by the said Decree, nor could it be said that he is in the public service of Gongola State within the meaning of the said Decree being a traditional and/or natural ruler.
Subsequently, i.e., on the 5th day of September, 1986, the Respondent filed an application challenging the jurisdiction of the Federal High Court to hear the case. The application was dismissed.
In his Ruling, Belgore, J. (as he then was) said, inter alia (after quoting
i section 42(1) of the Constitution of the Federal Republic of Nigeria, 1979)
combination of section 42(1) and definition in section 227 (of the Constitution) means, in my understanding, that Federal High Court has jurisdiction on any subject-matter involving allegation of breach or threat of r breach of fundamental rights. These rights embrace right to life, right to t dignity of human person, right to personal liberty, right to fair hearing, right to private and family life, right to peaceful assembly and association, right to freedom of movement and right to freedom from discrimination. In my opinion, the provision of section 42(1) of the Constitution has expanded the jurisdiction of the Federal High Court to any subject matter provided the litigation is in respect of breach or threat of breach of fundamental rights. It does not matter whether the decision arising from the issue of breach of the rights decides the issue finally or touches on modus operandi .................. ............................................................................................................................................................................................................................
I cannot accept the learned Director's submission that a determination of the chieftaincy issue is a pre-condition to the determination of the applicant's fundamental right.
I cannot accept that this Court has no jurisdiction on this question of fundamental right because the breach alleged was a chieftaincy matter a subject-matter which this court has no jurisdiction.
The second leg of the submission is that by virtue of Decree No.17 of (1984) under which the action was purportedly taken the jurisdiction of the court is ousted. The most relevant sections of Decree 17 are sections 3(2), (3), (4) and section 4.... If he is not a public officer, he could only be dealt with under other law which is not subject to Decree 17. The jurisdiction of the Court is not therefore ousted because the issue is not under Decree 17.
The two points of objection raised by the Respondent are therefore dismissed and the court affirms that it has jurisdiction to hear and determine the issue raised in the application and the motion."
Being dissatisfied with the decision, the Defendant appealed to the Court of Appeal. The matter came before the Court of Appeal holden in Jos (coram Maidama, Jacks and Adjo, JJ.C.A.). In the lead judgment delivered by Adio, J.C.A., concurred in by Maidama and Jacks, JJ.C.A., the learned Justice of the Court of Appeal said, inter alia.
The Federal High Court has no general civil jurisdiction other than those arising out of matters set out in section 7 of the Federal Revenue Court Act, 1973. There is no legislation which confers civil jurisdiction on the Federal High Court to try, entertain or determine chieftaincy questions and for that reason the court has no jurisdiction to entertain, try or determine chieftaincy
questions. The jurisdiction conferred upon the Federal High Court by section 42(1) of the Constitution is in relation to the enforcement of the fundamental rights provisions in the Constitution and where other issues on which the court has no jurisdiction are involved in such cases, the court can only in exercise of its jurisdiction under the section try such cases if it can effectively enforce the fundamental rights provisions without entering into any question relating to the determination of the issues on which it has no jurisdiction.
After citing Lasisi Ajibola Odunsi V. Aminu Ojora (1961) All N.L.R. 283 and Arnold Nwafla V. Ububa (1966) N.M.L.R. 219 (where it was held by the Federal Supreme Court that if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction ab initio to try the case; it should not embark on the trial of the case at all), the learned Justice continued:
As the Supreme Court pointed out in the African Newspapers case (supra) at p.175, Judges have a duty to expound the jurisdiction conferred on a court but it is not part of their duty to expand the jurisdiction beyond the line of demarcation drawn by the statute creating the court.
Applying the principles mentioned above to the Respondent's claim, I agree with the learned trial Judge that the Federal High Court has junsdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim in the manner and to the extent aforesaid. Their determination is possible without embarking on the determination of any question relating to the legal validity of the deposition of the Respondent as Emir of Muri. The learned trial Judge, however, erred in law, when he held that the Federal High Court had jurisdiction in respect of the claim in paragraphs 1 and 2 of the Respondent's claim.
The Federal High Court has no jurisdiction to entertain determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with the other aspects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.
This decision was delivered on the 21st day of June, 1988. The plaintiffl Respondent was dissatisfied with the decision and on the 24th June, 1988, filed his notice of appeal to this Court. On the 12th day of September, 1988, he filed a second notice of appeal.
At the hearing of the appeal in this Court, he abandoned the first notice of appeal. The notice of appeal dated 12th September, 1988 contains only one ground of appeal which, without the particulars reads:
The learned Justices of the Court of Appeal erred in law by misconstruing the full import of the jurisdiction conferred on the Federal High Court by the Constitution of the Federal Republic of Nigeria 1979 as amended, to try cases dealing with fundamental rights, in its Chapter IV thereof, when they held as follows:-
The Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with the other as~ects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.
The Defendant/appellant also cross-appealed against that part of the decision declaring that the Federal High Court has jurisdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim. The appellant's counsel formulated the issue for determination in his brief as follows:
Was the Court of Appeal right when it held as it did that the Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the appellant's claim either separately or in combination with the other aspects of the claim in the other paragraphs, notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution as amended, on the ground that the said court cannot effectively determine the issues which they involve without engaging in the determination of the legal validity of the deposition of the appellant as Emir of Muri which is a chieftaincy issue over which it has no jurisdiction?
The question naturally arises for determination having regard to that part of the decision of the Court of Appeal complained of.
The Respondent, in his brief, in view of the grounds of appeal in the plaintiffs appeal and the Defendant's appeal to the Supreme Court framed the issue for determination briefly as follows:
Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that court.
The Respondent's counsel has, in my view, correctly formulated the question or issue for determination before this Court having regard to the grounds of appeal set out in the notice of appeal given by the plaintiff/appellant/Respondent and the grounds of appeal set out in the notice of crossappeal given by the Defendant.
The submissions of Brown-Peterside, S.A.N., learned counsel for the appellant, were brief, concise and to the point. According to him, the learned Justices of the Court of Appeal recognised and acknowledged the fact that the issue of fundamental rights is intertwined with appellant's claims 1 and 2. He contended that section 42(1) of the 1979 Constitution read with the definition of the High Court in section 277(1) of the same Constitution as amended empowers the Federal High Court to hear and determine issues or matters involving fundamental rights. Learned counsel then referred to section 236(1) of the 1979 Constitution and concluded that from the extent of the powers given to a State High Court, chieftaincy matters must of necessity be included in the jurisdiction conferred on a State High Court. He then posed the question:
Can a Federal High Court, in the determination of a matter involving chieftaincy affairs exercise the same jurisdiction which the State High Court has?
and submitted that the answer can be found in the provisions of section 231(1) of the 1979 Constitution.
With profound respect to the learned Senior Advocate of Nigeria, section 231(1) of the Constitution only conferred all the powers of the High Court of a State on the Federal High Court for the purpose of exercising any jurisdiction conferred on it by 1979 Constitution or as may be conferred by an Act of National Assembly or a Decree promulgated by the Armed Forces Council. One will therefore search the provisions of section 231(1) of the 1979 Constitution in vain to get an answer to the question. The said section 231(1) reads:
For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of National Assembly or a Decree of the Armed Forces Ruling Council, the Federal High Court shall have all the powers of the High Court of a State.
Surprisingly, the learned Senior Advocate submitted that by virtue of the foregoing this court should hold that the Federal High Court in the exercise of the powers conferred upon it by section 42(1) of the 1979 Constitution clearly has jurisdiction to hear and determine claims 1 and 2.
The learned counsel, after referring to the provisions of section 33(1) of the 1979 Constitution invited this Court to hold that the High Court of a State as well as the Federal High Court has unlimited jurisdiction in the determination of civil rights and obligations of any citizen. He finally contended that the Military Governor (or the Governor) is enjoined by section 6 of the Chiefs (Appointment and Deposition) Law Cap. 20, Laws of Northern Nigeria, 1963 to observe the principles of natural justice enshrined in section 33(1) of the 1979 Constitution when deposing a chief.
On the cross-appeal, the learned Senior Advocate referred to the provisions of sub-sections (1) and (2) of section 42 and sub-section (1) of section 231 and contended that they constitute the source of jurisdiction of the Federal High Court to entertain the matter. I find myself unable to agree with the learned Senior Advocate for the appellant that section 42(1) of the Constitution confers any jurisdiction on a High Court. Sub-section (1) of section 42 of the Constitution does not confer any jurisdiction on the High Court. It only provides an access to enable any person whose fundamental rights are threatened or breached to invoke the jurisdiction of the High Court. It is sub-section (2) of section 42 that confers the special jurisdiction on a High Court to hear and determine any application made to it in pursuance of the section.
The jurisdiction conferred is made "subject to the provisions of this Constitution." In other words, the jurisdiction conferred is controlled by other provisions of the Constitution. The phrase "subject to the provisions of the Constitution" can only mean "the provisions of the Constitution permitting it" See Omerod V. Domorden 8 Q.B.D., 664; Oke V. Oke (1974)1 All N.L.R. 443.
In Oke V. Oke (supra) the Supreme Court was called on to interpret or construe the provisions of section 3(1) of the Wills Law of Western Nigeria, 1959, applicable to Midwestern State which opened with the words '~subject to any customary law relating thereto." Elias, C.J.N., delivering the judgment of the court said at p.450:
The introductory phrase "subject to any customary law relating thereto" necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent to which, if any, its exercise is permissible under the relevant customary law.
In Akisatan Apena of Iporo V. Akinwande Thomas (1950) A.C. 227, the Privy Council had before it the question of the correct interpretation of section 12 of the Supreme Court Ordinance No.23 of 1943 Laws of Nigeria. That seetion opened with the words:
"subject to such jurisdiction as may for the time being be vested by Ordinance in Native Courts, the jurisdiction by this Ordinance vested in the Supreme Court shall include.... ......................................................................................... ............................................
Lord Simonds delivering the judgment of their Lordships said at p.234:
On the other hand, it appears to their Lordships that since by the terms of the Ordinance the jurisdiction vested in the Supreme Court was to include all His Majesty's jurisdiction, etc., the careful draughtsman might well think it desirable to make it clear that this enactment was not to prejudice the Native Courts in the exercise of such jurisdiction as might from time to time be vested in them. Accordingly, the section opens with the words which are apt to provide that safeguard.
The provisions of the Constitution to which section 42(2) is subject that readily comes to mind are sections 230(1) and (2) and section 236(1) and (2). Section 230(1) of the Constitution sets out the jurisdiction conferred on the Federal High Court by that section. It reads:
Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by the National Assembly now Armed Forces Ruling Council, the Federal High Court shall have jurisdiction:
(a) In such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly now Armed Forces Ruling Council; and
(b) In such matters as may be prescribed as respect which the National Assembly now Armed Forces Ruling Council has power to make laws.
2. Notwithstanding sub-section (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which sub-section (1) of this section relates, such court shall as from the date when this section comes into force be restyled '~Federal High Court" and shall continue to have all the powers and exercise the jurisdiction conferred upon it by law.
Sub-sections (1) and (2) of section 230 of the Constitution have been considered and interpreted in several decisions of this Court which include:
(1) Bronik Motors Ltd. v. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296.
(2) Mandara v. Attorney-General of the Federation (1984)1 S.C.N.L.R.311.
(3) African Newspapers V. Nigeria (1985) 2 N.W.L.R. (Part 6)137 at 165.
(4) Savannah Bank ofNigeria Ltd. V. Pan Atlantic Shipping and Transport Ltd. and Nicanner Food Co. Ltd. (1987)1 N.W.L.R. (Pt.49) 212 at 227.
The matters in respect of which the Federal High Court has jurisdiction are thus expressly limited by the Constitution. It is otherwise in respect of the High Court of a State as can be seen from the provisions of section 236(1) of the Constitution. That sub-section (1) of section 236 reads:
Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, a High Court of a State shall have unlimited jurisdiction to hear and determine any proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, 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.
Thus, a State High Court has unlimited jurisdiction in unlimited matters or can hear and determine any civil or criminal proceedings. Sub-section (2) of section 236 is also relevant as it provides definition for civil or criminal proceedings. It reads:
The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in exercise of its appellate jurisdiction.
Thus, while the matters in respect of which a High Court of a State has jurisdiction are unlimited, the matters in respect of which the Federal High Court has jurisdiction are strictly limited by the Constitution. This limitation imposed by the Constitution must necessarily affect the matters involving Fundamental Rights violation which can be adjudicated upon by the Federal High Court. Rather than expand the jurisdiction of the Federal High Court as erroneously held by Belgore, J. (as he then was), section 42(2) of the Constitution has by the opening phrase "subject to the provisions of the Constitution" limited the jurisdiction to enforce the fundamental rights provisions to matters in respect of which the Constitution has granted or invested it with jurisdiction.
The expression "subject to" in section 221(1) of the 1979 Constitution was recently construed by my learned brother, Karibi-Whyte, J.S.C., in Aqua Ltd. V. Ondo State Sports Council (1988) 10-11 S.C.N.J. 26 at 51. Delivereing his judgment in the matter, he said:
The expression "subject to" subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See L. S.D. P.C. v. Foreign Finance Corporation (1987) 1N.W.L.R. (Pt.50)413at461; Clard v. I.R. C. (1973)2AIIE.R. 513.
The effect of this is that section 221(1) of the Constitution 1979 does not apply to the circumstances covered in section 220(1).
I will also refer to the lucid consideration given to this phrase "subject to" by Kolawole, J.C.A.,in L.S.D.P. C. v. Foreign Finance Corporation (1989)1 N.W.L.R. (Pt.50) 413 at 4