By Folorunsho Faozy Aduagba

INTRODUCTION

I refer with humility to the above article credited to Mr. Wahab Shittu Esq., (herein referred to as ‘the learned writer), which was published on the 27th day of September 2022 and can be accessed via (https://thenigerialawyer.com/fundamental-rights-enforcement-limits-of-federal-high-court-jurisdiction)

I have perused the submissions of the learned writer regarding the topic under discussion, wherein it was argued, among other things, that the Jurisdiction of Federal High Court (“FHC”) on Fundamental Rights action is only limited to matters within the Exclusive jurisdiction of the court as encapsulated in section 251(1) of the 1999 constitution.

With the greatest respect to the learned writer, I’m unable to agree with the interpretation laced on the provisions of the constitution as it doesn’t accurately reflect the correct position of law. As it will be shown anon, the Jurisdiction of the FHC is not limited to matters within its exclusive Jurisdiction in as much as the principal or main claim in the suit is for the enforcement of fundamental Human rights.

SHITTU’S POSITION The learned writer vehemently relied on various court’s decisions and submits that;

“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.

The learned writer further submits thus;

“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.”

A REJOINDER AND THE CURRENT POSITION OF LAW.

It is submitted that I agree with the learned writer only to the extent that section 46 (1) conferred additional jurisdiction on the FHC in respect of Fundamental rights enforcement. However, it is submitted that the additional jurisdiction conferred is not limited to the subject matters provided under section 251 of the constitution. The rejoinder will address the issue under contention in the following subheadings;

The Main or Principal Claim Determines The Jurisdiction Of The Court

It is pertinent to restate that what determines the jurisdiction of any court is the principal claim. In other words, the main or principal claim as wrapped in the originating process will determine which court has the power to entertain the suit vide; DEC OIL & GAS LIMITED v. SHELL NIGERIA GAS LIMITED(2019) LPELR-49347(SC)

The above position of law is also applicable in a fundamental right enforcement suit. The court of appeal held in OMONYAHUY & ORS v. THE INSPECTOR-GENERAL OF POLICE & ORS (2015) LPELR-25581(CA) thusly;

“Consequently, in order to sustain an action for the enforcement of Fundamental right, the principal claim in an applicant’s process must be hinged on breach of any of the Fundamental Right as guaranteed by the 1999 Constitution. It must not be ancillary claim else such action will be deemed as being outside the scope of the Fundamental Right proceedings and therefore incompetent.”

See also KOLO v. NIGERIA POLICE FORCE & ORS (2018) LPELR-43635(CA) Per OTISI, J.C.A;

“It is also established that for a claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right.”

Consequently therefore, where the main or principal claim is for the enforcement of fundamental right, the Federal High Court will have jurisdiction notwithstanding the facts that culminated to the breach or parties to the case. Thus, the provision of section 46 (1) (supra) only conferred an additional jurisdiction on the FHC which is not in any way tide or link to section 251 (1) of the constitution. See KOLO v. NIGERIA POLICE FORCE & ORS (Supra)

Provisions of section 46(1) is specific on The Enforcement Fundamental Right while Section 251 (1) is General.

The position of the law is that a general provision in a statute cannot derogate from a specific provisions, Hence the Maxim Generalia Specialibus Non Derogant. Thus, it is submitted that S. 46 (1) of the constitution is specific and special on the enforcement of fundamental right while S. 251(1) deals with the general jurisdiction of the federal High court. It follows therefore that the General provision of the Federal High court will not deal with the specific section on fundamental right. This was the interpretation laced by the Supreme Court in the case of JACK V. UNIVERSITY OF AGRICULTURE, MAKURDI(2004) 1 SC (Pt.1) 100 @ 111-112 where my lord Uwaifo, J.S.C enthused as follows;

“Section 42(1) [46(1) now] is a special provision Which deals with matters of fundamental rights. It confers jurisdiction on any High Court in a State in matters of fundamental rights irrespective of who is affected by an action founded on such rights. On the other hand, Section 230 (1)(s) of the 1979 Constitution(as amended) (S.251 (1) now] is a general provision. The law is that where there is a special provision in a statute, a later general provision in a statute, a later general provision in the same statute capable of covering the same the same subject-matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared: See Federal Mortgage Bank of Nigeria V. Olloh (2002) 4 S.C. (Pt. II) 117; (2002) 9 NWLR (773) 475 at 489. In my view, Section 42(1) is intended to give access to an aggrieved party to any High Court in a State where an alleged contravention of his fundamental right has taken place or is to take place, it is, therefore, a section which should itself be regarded as special and fundamental.”(words in bracket and underline are mine)

It is my humble submission that the above view was recently adopted by the Supreme in a recent case of E.F.C.C REINL (2020) LPELR-49387(SC), in this case the supreme court relied on the above principle to conclude that an High Court of the FCT has Jurisdiction on Fundamental right action notwithstanding the fact that a federal government agency is a party to the suit.

Furthermore, as can be seen above, it can safely be argued that the Federal High court will always have jurisdiction on fundamental right where the main claim before the court is for the enforcement of fundamental rights. Therefore, when a Federal High court or State High court exist in a state, both court will have concurrent jurisdiction on the matter so long as the principal claim is for the enforcement of fundamental right. Thus, an Applicant has the liberty to approach any of the court so desired. See E.F.C.C REINL (Supra), FEDERAL UNIVERSITY OF TECHNOLOGY MINNA, NIGER STATE & Ors v. OLUTAYO (Infra).

Unrestricted Access to court for the enforcement of Fundamental Right.

The Fundamental Rights (Enforcement procedure) Rules (2009) enjoys the court to always interpret the provisions relating to fundamental rights in manner to safeguard those rights when they are breached or about to be breached. See section 3 (a) of the Rule (supra).

Therefore, it can safely be submitted that there shouldn’t be a clog (of which court to approach) to the wheel of access to court where there has been a case of breach of fundamental right. The Supreme court per Kekere-Ekun JSC shared her view In the case of FEDERAL UNIVERSITY OF TECHNOLOGY MINNA, NIGER STATE & Ors v. OLUTAYO (2017) LPELR-43827 (SC) @ 27-32 D thusly;

“It is quite evident that Section 46(1) above refers to “a High Court of a State” without any restriction. The violation of a citizen’s fundamental right is reviewed so seriously that the framers of the Constitution sought to ensure that no fetters are placed in the path of a citizen seeking to enforce his rights In other words, the provision ensures that he has access to any High Court as long as it is within the State in which the alleged infraction occurred. Indeed it would negate the principle behind the guarantee if fundamental rights if a citizen were to have any obstacle placed in the path of enforcing those rights…”

CONCLUSION

In sum, the jurisdiction of the federal High court is not in anyway hinged on the subject matter listed in section 251 (1) of the 1999 constitution. The Jurisdiction of the federal High court on fundamental right action is just an additional jurisdiction to the listed subject matters in section 251(1) of the constitution.

Folorunsho Faozy Aduagba writes from Usmanu Danfodiyo University, Sokoto. He can be reached via 08106500985 or folorunshofaozy@gmail.com