Fundamental Rights Enforcement: Limits Of Federal High Court Jurisdiction

By Wahab Shittu

Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) provides for the fundamental rights of all citizens. The jurisdiction of the High Courts to entertain fundamental rights enforcement proceedings is derived from Section 46(1) of the constitution. Unfortunately, this section does not indicate which of the High Court has jurisdiction to entertain matters on breach of fundamental rights. For context, Section 46(1) of the constitution provides: “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.”

The above provision simply vests jurisdiction on both state high court and federal high by the use of the phrase “High Court in that state.” The question is then, how do we determine the appropriate court in a matter for enforcement of fundamental right enforcement? In answering this question, the court has expressed different opinions on the issue. We shall critically analyse the attitude of the court in determining the appropriate court in a matter for enforcement of fundamental rights viz-a-viz the provisions of Section 251 of the constitution on the jurisdiction of the Federal High Court.

INTRODUCTION:

The enforcement of fundamental rights as contained in the constitution2 is guided by the Fundamental Rights Enforcement Procedure Rules, 2009.3 The rule provides that the court4 shall constantly and conscientiously give effect to the overriding objectives of the rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other Law and whenever it applies or interprets any. Order II Rule 15 provides:

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“Any person who alleges that any of the Fundamental Rights provided for in the constitution6 or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being or is likely to be infringed, may apply to the court in the state where the infringement occurs or is likely to occur for redress; Provided that where the infringement occurs in a state which has no division of the Federal High Court, the division of the Federal High Court Administratively responsible for the State shall have jurisdiction.”

The above provision of the rules echoes the provisions of the constitution to the extent that the jurisdiction of the State High court and Federal High Court in an action for the enforcement of fundamental Human Right is not expressly spelt out. This has over the years led the court in ascribing concurrent jurisdiction to both courts.

Review of the attitude of the courts in an action for Enforcement of Fundamental Rights

In the case of INSP. GABRIEL OF COMM., POLICE MONITORING UNIT, LAGOS STATE V. UKPABIO7 the court stated that:

“The central question in this appeal is whether the Federal High Court has jurisdiction to try cases under the Fundamental Rights Enforcement Procedure Rules 1979 and the simple answer to that question is in the positive. This is so, because “Court” is defined under the applicable law that is the Fundamental Rights Enforcement Procedure Rules 1979 to include the Federal High Court and the position is further supported by the exclusive jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution, more particularly by the provisions of Sections 251 (1) (p), (q), (r) and (s) that is in relation to the administration or the management and control of the Federal Government or any of its agencies or as regards any action or proceeding 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. Indeed, the provision of Section 46 of the 1999 Constitution makes itself easily conformable to the definition section in the Fundamental Human Rights (Enforcement Procedure) Rules, 1979, which defines “Court” to include the Federal High Court. Section 46(1) of the 1999 Constitution reads thus: “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.” Thus Section 46(1) of the 1999 Constitution talks about the special jurisdiction conferred on the “High Court in that State for redress” and not High Court of a State. If the provision of Section 46(1) of the 1999 Constitution had wanted to exclude the Federal High Court from the special jurisdiction conferred in relation to the Fundamental Human Rights Provision, the section would have talked about the High Court of the State and not the “High Court in that state”.

The use of the words “High Court in that State” includes a Federal High Court in the State. And therefore, the jurisdiction to entertain breaches of the Fundamental Human Rights provisions under the 1999 Constitution also extends to the Federal High Court.”

The implication of the above decision of the court of Appeal is that jurisdiction in actions for the enforcement of fundamental rights can be exercised by both the State and Federal High Court. This provision has however been modified by later decisions of the court to the extent that the Federal High court only has jurisdiction with respect to fundamental rights actions arising from matters within its exclusive jurisdiction as provided by section 251 of the Constitution.

Thus, in OSUNDE & ANOR V. BABA8 the Respondent argued that “a High Court in a State” includes both the State High Court and the Federal High Court within a State’s territorial jurisdiction. It was his view that the fundamental human rights proceedings was rightly commenced at the Federal High Court sitting in Benin. This was the position of the Supreme Court in Jack v. UNAM9 when Katsina-Alu JSC (as he then was) stated generally that a State High Court has concurrent jurisdiction with the Federal High Court in matters of enforcement of a person’s fundamental rights provided for in Chapter IV of the Constitution. The Supreme Court in J ac k v. UNAM10 also established a dichotomy in relation to the fact that jurisdiction is derived from the subject matter of the dispute. Even though the Supreme Court allowed the appeal in that case, it struck out the case at the trial Court because the cause of action was a breach of contract and not violation of the fundamental human rights of the Appellant. In Adetona & ors. v. I.G. Enterprises Ltd11, Muhammad JSC, who delivered the lead judgment apparently enlarged the position of the Supreme Court on the matter. Their Lordships were of the view that a State High Court has jurisdiction in all fundamental human rights cases irrespective of whether the right involved comes within the legislative competence of the Federation or the state or the FCT. I.T. Muhammad JSC stated as follows:

“It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the Federal High Court. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental human rights, although brought pursuant to S.46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by s.251 of the Constitution.”

Thus the issue of who has jurisdiction between the State and Federal High Court is only circumscribed by the exclusive jurisdiction of the Federal High Court in matters provided under S. 251 of the Constitution.

The Supreme Court echoed the above ratio in ADETONA V. IGELE GENERAL ENTERPRISES LTD12 where it held that:

“Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46 (1) to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about, to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, or the State or the Federal Capital Territory. However it should be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right 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.” Furthermore, the Supreme Court in the most explicit terms interpreted Section 46(2) of the Constitution thus: “On Jurisdiction of the Federal and State High Court over action for enforcement of fundamental rights – A High Court of a State lacks Jurisdiction to entertain matters on Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution, where the alleged breach arose from a transaction or subject matter which falls within the exclusive Jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.”

In the recent case of IHEME V. CHIEF OF DEFENCE STAFF & ORS13 the court also emphasized on the jurisdiction of the Federal High Court in Enforcement of Fundamental Rights when it held thus:

“Now on whether the trial Court was in error to hold that it lacked the subject matter jurisdiction to hear and determine the case. All the counsel relied strongly on the Apex Court’s decision in ADETONA V. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) PG 542; to support their position. The Supreme Court in ADETONA V. IGELE GENERAL ENTERPRISES LTD. (supra) at page 543 held: “Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46 (1) to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about, to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, or the State or the Federal Capital Territory. However it should be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right 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.” Furthermore, the Supreme Court in the most explicit terms interpreted Section 46(2) of the Constitution thus: “On Jurisdiction of the Federal and State High Court over action for enforcement of fundamental rights – A High Court of a State lacks Jurisdiction to entertain matters on Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution, where the alleged breach arose from a transaction or subject matter which falls within the exclusive Jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.” ADETONA V. I. G. ENTERPRISES (supra) at P.564, para. E; F. The Apex Court’s holdings reproduced above are the bone of contention of the parties. The seeming import of the above judicial authority is that whereas both the State and Federal High Courts have concurrent jurisdiction in the determination of Fundamental Right cases, the phrase “subject to the provision of the Constitution” as embodied under Section 46 (2) demarcated the respective Jurisdictions of the State and Federal High Courts. In essence, a State High Court cannot for instance rightly and validly determine allegations of breach of Fundamental Rights emanating from acts of Terrorism or Treason and Treasonable felonies which fall under the jurisdiction of the Federal High Court. Likewise, a Federal High Court cannot except where circumstances permit, validly determine alleged violation of human rights that arise from torts, rape or armed robbery etc. as the same ordinarily fall within the jurisdiction of the State High Courts.

In ABDULAHI V. KOMOLAFE & ORS14 the question for determination was whether the Federal High Court has jurisdiction to entertain the matter which is a fundamental right proceedings between private individuals. The Appellant raised the issue and submitted that since the matter involved private individuals, the Federal High Court has no jurisdiction in the first place to entertain the matter. The matter before the Federal High Court which is the subject matter of the appeal pertains to fundamental right. The 1st Respondent before the lower Court has alleged the violation of his fundamental right mostly by the Appellant. The court recognized that the breached right must fall within matters that falls within the jurisdiction of Federal High Court for it to have jurisdiction. Sounding more specific, the Federal High Court only has jurisdiction on fundamental right cases if the infringed right falls within the provision of Section 251 (1) of the Constitution which spells out the jurisdiction of the Federal High Court or if such action involves Federal Government Agency.

In the 2020 case of LASTMA V. OMOSIVWE15 The Respondent’s complaint on the basis of which he predicated his cause of action is that the Appellant, an agency of the Lagos State Government; acting through its officers, impounded his vehicle and imposed a fine on him for an alleged traffic offence without affording him a hearing and deprived him of the use of his vehicle. The subject matter of the Respondent’s action had nothing to do with the acts of omission or commission of the Federal Government or any of its agencies. The court in deciding the issue held that:

“The position of the Appellants is that in the circumstances of this case, only the State High Court has jurisdiction to entertain the fundamental human rights proceedings relating to violations of the rights of the Respondent by an agent of the Edo State Government. The argument of the Respondent is that since the term ‘a High Court in a State’ includes both the State High Court and the Federal High Court within a State’s territorial jurisdiction, then the fundamental human rights proceedings was rightly commenced at the Federal High Court sitting in Benin. In Adetona & Ors. V. I.G. Enterprises Ltd. 2011 7 NWLR pt. 1247 pg. 535 at 564, Muhammad JSC, who delivered the lead judgment apparently enlarged the position of the Supreme Court on the matter. Their Lordships were of the view that a State High Court has jurisdiction in all fundamental human rights cases irrespective of whether the right involved comes within the legislative competence of the Federation or the State or the FCT. I.T. Muhammad JSC stated at Pg. 554 as follows:

‘It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the Federal High Court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225.

Thus the issue of who has jurisdiction between the State and Federal High Court is only circumscribed by the exclusive jurisdiction of the Federal High Court in matters provided under S. 251 of the Constitution. By the doctrine of stare decisis, we are obliged to shift our position to the one postulated by the Supreme Court on this issue.

In the circumstances of this case, the alleged breach of his rights complained of by the Respondent being committed outside the purview of S.251 of the Constitution by agents of Edo State Government, the Federal High Court lacked the jurisdiction to entertain the action.”

CONCLUSION

It is evident from the above decisions of the court that jurisdiction of the Federal High court in Fundamental rights actions are limited to actions arising from the matters within its exclusive jurisdiction as provided for by section 251(1) of the constitution. It is arguable whether the position the Supreme Court took in ADETONA V. IGELE GENERAL ENTERPRISES LTD16 conforms with the overall objectives of the Fundamental Rights Enforcement Procedure Rules, 2009. The preamble provides that the overriding objectives of the rules are for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms. Human rights suits should be given priority in deserving cases when there is a question as to the liberty of the applicant or any person and such matter should be treated as an emergency.

The definition of “courts” in the rules to mean the Federal High Court, the High Court of a state or the High Court of the Federal Capital Territory could be a deliberate attempt by the draftman to confer jurisdiction on all the stated courts in any matter for enforcement of fundamental rights irrespective of the subject matter from which the fundamental rights action arose. The decisions of the court highlighted above could be argued to be restrictive but one thing that is not in doubt is that going by the position of the law is that the Federal High Court only has jurisdiction in actions for the enforcement of Fundamental Human Rights where the breach of such rights arose from matters within the exclusive jurisdiction of the Federal High Court as provided for by Section 251(1) of the constitution.

Chapter IV of the 1999 constitution of the Federal Republic of Nigeria (as Amended) provides for Rights to life, Right to dignity of human person, Right to personal liberty, Right to fair hearing, Right to private and family life, Right to freedom of thought, conscience and religion, right to freedom of expression at the press, Right to peaceful assembly and association, Right to freedom of movement, Right to

freedom from discrimination, and Right to acquire and own immovable property anywhere in Nigeria

3 The Rules came into force on December 1, 2009

4 The interpretation of the court here means the Federal High court, the High Court of a state or the High Court of the Federal Capital Territory, Abuja

5 Fundamental Rights Enforcement Procedure Rules, 2009.