Jurisdictional Conflict Over Fundamental Rights Matters: Surfacing The True Import Of The Supreme Court’s Decision In The Case Of Tukur V Government Of Gongola (1989) Lpelr-3272(SC)

BY Ukashatu ibrahim

Introduction

The writer, on the 26th July, 2020 at about 11pm, came across a publication on the TheNigeiaLawyerStudents’ Social media Platform, tagged “IGP faults ex-Emir Sanusi’s suit against banishment.”

The content of the publication was to the effect that, at the mention of the ex-Emir’s case, the IGP raised a preliminary objection to the jurisdiction of the Federal High Court, arguing that, giving the nature of the suit (Chieftaincy), it falls within the exclusive jurisdiction of the state High Court and urged the Court to dismiss same.

This article is therefore, predicated on the content of the publication.

However, it is not the purpose of this write-up, to comment on the merit of the case, but rather, bring out the position of the law to the fore, as did the apex court  in the famous case of Tukur v. Govt of Gongola (1989).

It is paramount from the onset, to determine the appropriate court before which a matter is to be instituted, any proceeding carried out without jurisdiction is a waste of time and energy, as such will be a nullity and of no effect.[1]

Thus, a lawyer should always be conversant and careful with the issue of jurisdiction, because, a lawyer having toiled and gone through the rigours of a legal battle for decades, may end up having his case thrown out for want of jurisdiction. See AG OF LAGOS STATE V DOSUNMU (1962) LPELR-3154(SC)

The question as to the appropriate court to approach in a bid to enforce Fundamental Human Rights’ violations has always spurred a lot of confusion emanating from the conflicting decisions of superior Courts in respect of the subject.

This confusion, the writer respectfully submits, is informed by the  misapprehension of  the substance and spirit of the Supreme Court’s judgement, in  the case of TUKUR v GOVERNMENT OF GONGOLA  (supra)

It is thus, paramount to appreciate the true import of the apex Court’s decision in the aforementioned case, giving the importance and legal effect of the judicial proceeding conducted without jurisdiction.[3]

The argument is predicated on the proper interpretation to be given to section 42(2) of the 1979 constitution in tune with section 46(2) of the constitution of the Federal Republic of Nigeria 1999, as amended  which provides for the concurrent jurisdiction (as interpreted by the courts) to hear and determine Fundamental Rights  matters.

The first pronouncement on the issue was made albeit peripherally, in BRONIK MOTORS V WEMA BANK LTD. (1983) 1 S.C.N.L.R. 296. [4]

The issue of concurrent jurisdiction of Federal and State High Courts over Fundamental Rights violations, found full expression in the case of TUKUR V GOVERNMENT OF GONGOLA (supra).[5]

In this case, the appellant, was deposed by the Military Governor of Gongola State. As a result, the appellant approached the Kano state judicial division of the Federal High Court for enforcement of his Fundamental Right.

The Respondent filed an application challenging the jurisdiction of the Federal High Court to hear the case. The application was dismissed.

Dissatisfied, the defendant appealed to the Court of Appeal which faulted the decision of the trial Court and held that the Federal High Court lacked the jurisdiction to entertain the matter.

The appealed to the Supreme Court.

The Supreme Court after hearing arguments, invoked its interpretative jurisdiction to examine and interpret the opening words of sub section (2) of section 42 of the 1979 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”. [6]

The apex Court, out of anxiety to interpret the phrase “subject to” in section 42(2) of the 1979 constitution, cited the cases of Oke v Oke (1979) 1All NLR 445; Omerod v. Domorden 8 Q.B.D.,664; Akisatan Apena of Iporo v. Akinwande Thomas (1950)  A.C. 227; L.S.D.P.C. v. Foreign Finance Corporation (1987) 1 N.W.L.R. (Pt.50) 413 at 461; Clard v. I.R.C. (1973) 2All E.R. 513; Aqua Ltd. v. Ondo State Sports Council (1988) 10-11 S.C.N.J. 26 at 51.

The phrase “subject to”  have been interpreted to mean that the particular section[6]is inferior, dependent and subordinate to the  provision in respect of which it is made subject to. OLORUNTOBA-OJU & ORS. V. ABDUL-RAHEEM & ORS.(2009) LPELR-2596(SC).

The Court of Appeal in  INEC v. DPP & ORS(2014) LPELR-22809(CA), held:

“It must be noted that “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by, provided that or answerable for. See FRN v. Osahon & Ors. (2006) 2 SCNJ 348. The expression is also used to introduce a condition, a proviso or a limitation and thereby subordinate some provision to another provision. See Philip Ebhota & 3 Ors. v. PIPDC Ltd. (2005) 7 SCNJ 548.” Per OGUNWUMIJU, J.C.A. (P. 24, paras. A-C)”

The Supreme Court, in Tukur, after giving an interpretative consideration of the phrase above, adverted its mind to the provision of section 230 of the 1979 constitution which provided for the primary jurisdiction of the Federal High Court, in a bid to determine whether the crux of the appeal before it, fell within the matters set out in section 230 of the 1979 constitution over which the Federal High Court can validly assume jurisdiction, as contemplated by section 42 of the 1979 constitution.

It would be recalled that the alleged breach of the Fundamental Right of the appellant emanated from deposition of the appellant by the Military Governor of the state; a Chieftaincy matter, which is outside the jurisdiction of the trial court.

In the light of the above, the apex court after making pronouncement on the concurrent jurisdiction of the High courts to determine Fundamental Rights matters, [8] held thus:

“The chieftaincy question being a fundamental issue which the Federal High Court has no jurisdiction to entertain, the Court of Appeal therefore erred in law in holding that the Federal High Court has jurisdiction to hear and determine prayers or claims No.3, 4, 5 and 6 of the claim and in remitting them to the Federal High Court for hearing and determination. The appeal fails and the cross-appeal succeeds. That decision is hereby set aside and in its stead an order striking out the entire suit for want of jurisdiction is hereby substituted”

The conflict…

But the Supreme Court about a decade and half later, took a reversal position on the issue in the case of JACK GRACE V UNIVERSITY OF AGRICULTURE, MAKURDI (2004) LPELR-1587 (SC).

The appellant, an employee of the respondent; University of Makurdi, was dismissed by the respondent on the allegation of misconduct.

This prompted the appellant to file a Fundamental Right claim before the High Court of Benue, challenging the action of the respondent. The High Court assumed jurisdiction and granted her reliefs.

The respondent appealed against this decision to the Court of Appeal, the appeal was allowed. The appellant appealed to the Supreme Court.

In resolving the issue, the apex court held that the claim being contractual, was wrongly instituted. It reiterated the position of the law on the concurrent jurisdiction of the Federal and State High Courts over Fundamental Rights matters without more.

It appears the apex Court in this case, shifted from its earlier position that before a High Court (Federal or State) can exercise jurisdiction over Fundamental Rights matters, the action giving rise to the infringement, must relate to a matter over which the High Court ordinarily has  jurisdiction to entertain as stated by Oputa JSC in Tukur (Supra) that “Section 42(1) deals with the access to the Court (State and Federal High Courts) but it must be a court having jurisdiction.”

The case of Jack (supra) therefore, fueled the confusion as to the appropriate court to approach in furtherance of Fundamental Rights enforcements.

The apex court in ADETONA & ORS. v. I.G ENTERPRISES LTD. (2011) LPELR-159(SC) after reaffirming the aged position of the law on the concurrent jurisdiction of Federal and State High Courts over Fundamental Rights issues, aligned itself with the case of Tukur (supra). It stated thus:

“..It has to however be noted that the exercise of this jurisdiction by the Federal High Courts 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. See: Tukur v. Government of Gongola State (1989) 3 NSCC 225. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to section 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 Section 251 of the constitution…”

Years later, the apex court in FUT MINNA, NIGER STATE & ORS v OLUTAYO (2017) LPELR-43827(SC), opted for its decision in Jack (supra)

Finally, in the recent case of EFCC v WOLFGANG REINL (2020) LPELR-49387 (SC), the apex court also adopted its reasoning in Jack’s case and held that the Federal and State High Courts have concurrent jurisdiction over Fundamental Rights matters, irrespective of the nature of the claim.

The Court of appeal is not exempted from this controversy; some of its holding would accord with the case of Tukur and others would affirm that of Jack. [8]

Surfacing the true position of the law

It therefore, means that section 46(2) is subject to the primary jurisdiction of the Federal and state High Courts respectively. Consequently, either courts can only cloth itself with the jurisdiction to entertain Fundamental Rights matters if the claim giving rise to the infringement, is a matter it would ordinarily entertain.

It is the submission of this writer, that the Supreme Court and the Court of Appeal[11] (most respectfully), erroneously construed the import of the decision of Tukur (supra). The subtle point in that case is that, it is the nature of the claim that triggers the jurisdiction of a High Court for the purpose of enforcement of Fundamental Rights, notwithstanding the status of the parties thereto.

Thus, it is recommended that, the Appellate Courts should revisit the case of Tukur (supra) in order to grasp the whole import of section 46(1), (2) and 251 of the constitution of the Federal Republic of Nigeria, 1999 as amended.

To avoid the conflict, parties are enjoined to diligently determine the nature of the claim in respect of which an alleged breach has occurred, in order to determine the appropriate court to approach to enforce one’s Fundamental Human Rights.

Ukashatu Ibrahim is Final Year Student of law, UDUS ukashatuibrahim7@gmail.com

[1] MADOKOLU V NKEMDELIM (1962) 2 SCNLR

[2]SEE THE CASES OF; MADOKOLU V NKEMDELIM; ADEYEMI V OPEYORI (1979) FNLR 149; CHIEF IKEDI OKAHIM V CHIEF MARTIN AGBARO & ORS (2010) SC 3; OLUTOLA V UNIVERSITY OF ILORIN (2004) LPELR-2632(SC).

[3] NOW SECTION 46(2) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999, AS AMENDED.

[4] FUNMILAYO OLUMIDE, IN HER ARTICLE TITLED “THE CONCURRENT JURISDICTION OF THE HIGH COURT TO DETERMINE FUNDAMENTAL RIGHTS SUITS: AN APPRAISAL OF SECTION 46(1) OF THE CONSTITUTION”  OPINED THAT THE CASE IS NOT THE LOCUS CLASSICUS ON THE ISSUE.

[5] THIS CASE IS THE LOCUS CLASSICUS ON THIS ISSUE.

[6] THE PROVISION MADE “SUBJECT TO.”

[7] ALHAJI UMARU ABBA TUKUR V GOVERNMENT OF GONGOLA (1989) LPELR-3272 (SC)

[8] SEE TUKUR V GOVERNMENT OF GONGOLA (1989) LPELR-3272 (SC). PER OPUTA JSC (Pp. 48-50, paras.f-d)

[9] FOR THE DEFINATION OF ‘A HIGH COURT” WITHIN THE CONTEXT OF SECTION 42(1), OF THE 1979 CONST., SECTION 46(1) OF THE 1999 CONST., SEE THE CASE OF GEORGE ADUMU V THE COMPTROLLER GENERAL OF PRISONS (2013)LPELR-22069(CA)

[10] THE LIKES OF ISHOLA ABDULLAHI V OLUSEUN KOMOLAFE & ORS (2018) LPELR-46519(CA); EFCC V.ABIODUN AGBELE (2018) LPELR-44677(CA); FUT, YOLA V. FUTULESS (2004) LPELR – 5629 (CA) AND UNACHUKWU V. AJUZIE (2008) LPELR – 3984 (CA) ARE IN HARMONY WITH THE DECISION OF TUKUR.

WHILE; SEED VEST MICROFINANCE BANK PLC & ANOR V. PAUL ADEDIGBO OGUNSINA & ORS (2016) LPELR-41346(CA); NNABUCHI V. IGP (2007) ALL FWLR (PART 368) 1158; AJAYI V SEC (2007) LPELR–4553 (CA); ZAKARI V. IGP (2000)LPELR–6780(CA); NIGERIAN NAVY V. GARRICK (2005) LPELR–7555(CA), FOLLOWED THE CASE OF JACK.

[11] DECISIONS THAT DEPARTED FROM THAT OF TUKUR’S.