INTRODUCTION
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The breach of fundamental right of the citizens has always been viewed as a serious business by our Courts in which nothing should obviate the easy access to Courts in order to redress the said infringement, whether actual or imminent.
However, the significant question which this writer seeks to address comes up where the alleged likely or actual infringement takes place in two or more States, in such circumstance, which Federal/State High Court should the litigant approach ? Does the litigant enjoy the liberty to choose which of the States’ High Court to approach ?
These questions are so fundamental because, although, the Constitution has given the State High Court jurisdiction to entertain fundamental right applications but reasonable care must equally be exercised in approaching any of the States’ High Court in this kind of situation because, it is not in every circumstance that any State High Court can be approached as would be seen later in this write up.
In the light of the forgoing, this writer intends to address the question of the appropriate High Court to approach where an infringement of fundamental right occurs in two or more States in the Federation.
AN EXAMINATION OF THE APPROPRIATE COURT SEIZED WITH JURISDICTION
The proper Court that is seized with the requisite jurisdiction to entertain an application where the infringement of fundamental right occurred in more than one State is still a topical but serious question. This is because, it is the fact and circumstance of the case and not the fancy of the applicant that will determine the State High Court to approach as a Court of competent jurisdiction.
However, the starting point of note is the famous provision of Section 46(1) of the 1999 Constitution which 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.”
From the above provision, it is obvious that the applicant can only apply to “a High Court in that State for redress”. Put differently, by the above provision and coupled with Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules, 2009, it is the Federal/State High Court where the breach occurred that the applicant can approach and no more ! Therefore, in the light of Section 46(1) above, what if the infringement occurred in more than one State ?
A judicial decision on the point would beam more light on this discourse. In ANYAECHE & ANOR v. NDUKA(2017) LPELR-42459(CA), the Applicant was arrested by the Police at his shop at No. 50 Sapele/Agbor Road Obiaruku Delta State while he was taken to Umuahia, Abia State of which he was detained at Abia State for 3 weeks, therefore, he filed an application for the enforcement of his fundamental rights at the Delta State High Court, that is, the (Delta) State where he was initially arrested. The High Court of Delta State assumed jurisdiction and found in favour of the applicant. However, the Court of Appeal held that the Delta State High Court lacks jurisdiction because the main reliefs sought by the appellant are premised on the events that occurred in Abia State and not Delta State and also, he failed to proof the illegality of his arrest at Delta State.
The Court of Appeal therefore on this point held in ANYAECHE & ANOR v. NDUKA(2017) LPELR-42459(CA) thus:
“It is my candid but respectful submission that where as in the instant case, the alleged wrong being complained of, is said to have arisen from a State other than the State in which the case is being initiated, that would be against the spirit of Section 46 (2) of the Constitution, and therefore lacking in competence. I am fortified in this decision upon the authority of Adumu vs Comptroller of Prisons (supra). The case having been initiated in violation of the spirit of the section of the Constitution, by the authority of the age old case of Madukolu vs Nkemdilim (1962) ANLR 167, robed the lower Court of jurisdiction to entertain and to determine same. I am not enthused by the argument offered by the learned counsel for the respondent, in trying to state rather belatedly that the wrongs complained of, indeed took place in Delta state, this is because the argument is in conflict with the relief initially claimed and granted by the trial Court.”
Besides, the concurrent jurisdiction of the Federal High Court with respect to enforcement of fundamental rights is still a vexed question of law, but this writer at this stage and in this write up is only concerned with the appropriate venue or judicial division of the Federal High Court to approach where (assumably) it has jurisdiction.
No doubt, there is only one Federal High Court in Nigeria by virtue of Section 249(1) of the 1999 Constitution and Section 1(1) of the Federal High Court Act also, Section 19(1) of the Federal High Court Act empowers the Chief Judge of the Court to divide the Court into administrative divisions for the purpose of convenience. Similarly, Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009 gives the applicant a liberty, in case no division of the Federal High Court is in the State where the infringement occurred, to approach a judicial division designated for that State.
From the forgoing analysis, if for example, an infringement occurred in Lagos State, where there is a division of the Federal High Court_ can an applicant approach the Abuja division for the enforcement of his right simply because there is one Federal High Court in Nigeria ?
I humbly submit in the negative. This is because, apparently, Section 46(1) of the Constitution specifically mentions “a High Court in that State” and not outside or anywhere else and also, this seems to be and amounts to forum shopping of the Federal High Court. See James Ibori & anor v. Federal Republic of Nigeria ors : (2008) LPELR-CA/K/81C/2008
The celebrated case of TUKUR V. GOVERNMENT OF GONGOLA STATE(1989) LPELR-SC.196/87 , is illustrative on this point . In this case, the Appellant’s fundamental right was allegedly contravened in the then Gongola (now Adamawa) State but he approached the Kano State Federal High Court for the enforcement of his fundamental rights.
The Supreme Court through Per Oputa JSC (as he then was) held:
“From the facts, undisputed facts of this case, that Court should be a State High Court of Gongola State or a Federal High Court in Gongola State. From the above analysis, it is obvious that the Federal High Court, sitting in Kano, can by no stretch of the imagination be described as a High Court in Gongola State. The court chosen by the present appellant, the Federal High Court sitting in Kano lacked the geographical jurisdiction or venue. The appellant approached the wrong Court venue-wise: see Bronik Motors’ case (supra).”
Hence, it was resolved that:
“ It is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the appellant in this case did not “apply to a High Court in that State” as required by Section 42(1) of the 1979 Constitution(now 46(1) of 1999 Constitution).”
It is important to note , that where it appears as seen in ANYAECHE(supra) that a High Court in one State is more properly disposed to entertain the matter than another High Court in a different State, then, it is grossly improper to approach the latter Court which does not have the requisite power to entertain it in the face of the Constitution.
However, where the infringement concurrently occurred in two States, then both States’ High Court can properly assume jurisdiction. This position is informed by the decision of Per Mamman Nasir PCA(as he then was) held in the case of Uzoukwu & Ors vs Ezeonu 11 & Ors (1991) 6 NWLR (pt. 200) 708 thus:
“It is the High Court within the State in which the alleged infringement occurred or is likely to occur which has jurisdiction. Any High Court outside the State has no jurisdiction. Where however two High Courts have equal jurisdiction, the complainant may have freedom to choose which Court to go to. If however, one High Court has partial jurisdiction in respect of some of the complaints, but no jurisdiction on others, the High Court to go to is the one with complete jurisdiction.”
It is the further view of this writer that the need to choose the appropriate High Court may equally be necessary for purpose of advancing the convenience of both parties. For instance, if Mr. A infringed a fundamental right of Mr. B in Kaduna State at a 70% rate while the remaining infringement occurred in Kwara State at 30% rate and both parties reside in Kaduna State, will it be equitable for Mr. A to file his enforcement application in Kwara State High Court ?
I humbly submit in the negative, this is because, it is trite and circumstances abound whereby there might be irreconcilable conflicts in the affidavit of both parties, therefore, necessitating an order of court calling for oral evidence in order to resolve the irreconcilable conflicts. Hence, if one or both parties do not reside within the(Kwara State) jurisdiction, this may result in untold hardship or inconvenience to one or both parties. After all, justice is meant for both parties !
CONCLUSION
The question of the appropriate venue for the enforcement of fundamental rights where the alleged likely or actual infringement takes place in more than one State in Nigeria is a very crucial and significant constitutional question when one considers the import of Section 46(1) of the Constitution as pointed out above and other related authorities. Consequently, where an inappropriate High Court of a State is gone to by an applicant, I finally submit that it renders the application unconstitutional. Hence, an applicant must have strict regards to the facts and circumstances of his case as a determining factor.
Balogun Sofiyullahi writes from Faculty of Law, Ahmadu Bello University, Zaria
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