Alhaji Umaru Abba Tukur V. Government Of Gongola State (1988)
LawGlobal-Hub Lead Judgment Report
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 ascertain 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:
“Subject to the provisions of this Constitution, a High Court shall have original jurisdiction 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 appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”
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 ex pate 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 Order 2 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 Honorable 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, ALHAJI 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) For a declaration that by virtue of paragraphs 1(1) to 1(iii) (supra), that the applicant is still 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 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.
(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., Former of Emir’s Palace, Jalingo, Muri, Gongola State;
- 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.
- 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 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 breach of fundamental rights.
These rights embrace right to life, right to 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 held in Jos (coram Maidama, Jacks and Adio, 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 Nwafia 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 abilities 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 jurisdiction 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 plaintiff/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 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.”
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 cross appeal 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 recognized 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 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 subsection (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 section 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.
- 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 of Nigeria 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. Delivering 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) 1 N.W.L.R. (Pt.50) 413 at 461; Clardv. I.R.C. (1973) 2All E.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 461. There the learned Justice of the Court of Appeal was dealing with section 1 of the Land Use Act when he said:
“Section 1 of the Act begins by saying that “subject to the provisions of the Decree.” This phrase governs what follows by which all lands comprised in each State in the Federation are vested in the Military Governor of that State.
Now what is the effect of the phrase “subject to the provisions of this Decree” on section 34 of the Act Megarry, J. (as he then was), aptly gave consideration to that phrase. He said:
” The phrase “subject to” is a simple provision which merely subjects provision of the subject sub-section to the provision of the master sub-section. Where there is no clash the phrase does nothing. If there is collision, the phrase shows what is to prevail.” See Clark Ltd. v. Inland Revenue Commissioners (1973) 2 All E.R. 513,520.
Now if section 1 of the Act is subject to the provisions of the Decree can it be stated categorically that all land comprised in the territory of each State are vested in the Military Governor of the State. Section 1 subjects the provision to the provisions of the master sections in the Act. ”
The effect of the phrase “subject to the provisions of this Decree” in section 1 of the Land Use Act is brought out vividly by the provisions of section 49(1) and section 50(2) of the Act which are master sections. Section 49(1) reads:
“Nothing in this Decree shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Decree and accordingly any such land shall continue to vest in the Federal Government or the agency concerned.”
while section 50(2) reads:
“The powers of a Military Governor under this Decree shall in respect of the Federal Capital Territory or any land held or vested in the Federal Government in any State, be exercisable by the Head of the Federal Military Government or any Federal Commissioner designated by him in that behalf and references in this Decree to Military Governor shall be construed accordingly.”
It is therefore clear that section 1 of the Decree is subject to the provisions of sections 49(1) and 50(2) of the Act. As stated above, the Federal High Court only has jurisdiction in limited matters. Emphasising this point in Bronik Motors Ltd v.. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296, Bello, J.S.C. (as he then was), held at page 333 that “In my view, the Constitution has not vested in Federal High Court general and unlimited jurisdiction in all matters with respect to which the National Assembly has power to make laws.”
Also, on this question of the limitation on the jurisdiction of the Federal High Court, Idigbe, J.S.C. (of blessed memory), said at p. 344:
“It is the Federal High Court that has limited jurisdiction, limited in the sense that it has only so much of the jurisdiction conferred expressly by existing laws (See section 274(1) of the Constitution) which exists as Acts of National Assembly under subsection (2) of section 230 aforesaid and also under specific section of the 1979 Constitution (i.e. expressly prescribed there under) viz sections 42 and 237(2)(A) as well as such other jurisdictions as maybe conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution.”
Nnamani, J.S.C., who delivered the lead judgment in the matter dealt extensively with the limits to the jurisdiction of the Federal High Court, after referring to the provisions of section 230(1)(a) and (b) and (2) said:
“There is no gainsaying the section lacks precision and elegance. Nevertheless, having read the section together with other relevant provisions of the Constitution, I would not hesitate to conclude that upon the proper construction of section 230 in its ordinary and plain meaning, the jurisdiction of the Federal High Court is limited to (1) such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed. See section 230(1)(a);
(2) such other matters than those specified in (1) above as may be prescribed. See section 230(1)(b); and
(3) such jurisdiction as was vested in former Federal Revenue Court established under the provisions of the Federal Revenue Court Act, 1973: section 230(2).
It is pertinent, I think, to emphasise that the jurisdiction conferred on the Federal High Court which I have set out in categories (1) and (2) above is not self-executing. There must be in existence an Act of the National Assembly authorising the exercise of such jurisdiction on a matter within the legislative competence of the National Assembly.
Finally, I may point out that the only jurisdiction which the Constitution specifically conferred on the Federal High Court is as follows:
(1) Under section 42, the court has concurrent jurisdiction with the State High Court to grant redress for an infringement of a fundamental right; and
(2) Under section 237 it has a temporary jurisdiction pending the constitutional establishment of Abuja as the Federal Capital Territory to determine any question whether any person has been validly elected to the office of President or Vice-President or whether the term of office of President or Vice-President has ceased.”
Finally, on the same issue of jurisdiction of the Federal High Court, I observed at p. 353 that “The Constitution in sections 42, 230(2) and 237(1) expressly conferred jurisdiction on the Federal High Court for the hearing and determination of certain specific matters but an Act of the National Assembly in sub-section (1)( a) and (b) of section 230 is yet to be passed.”
These were all said in Bronik Motors Ltd. v. Wema Bank Ltd. (supra).
Having regard to my expressed opinion on the extent of jurisdiction, the Federal High Court at present has, I read with amazement, the dictum quoted in the brief of appellant/Respondent in the cross-appeal credited to me or as emanating from my mouth and my pen. The dictum quoted in the brief ran as follows:
“1979 Constitution was not ordained by the National Assembly and the Houses of Assembly of a State, but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the State high Court (and of course of the Federal High Court by section 231(1) of the 1979 Constitution) in exercise of their sovereign powers cannot therefore be limited otherwise than by the Constitution.”
That was not my dictum and it was not culled from my judgment in the Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (supra) case. The words in brackets were not uttered or written by me and at no time did the impression that the Constitution by section 231(1) conferred unlimited jurisdiction find a place in my thoughts. I have looked up the Supreme Court Reports and the Supreme Court of Nigeria Reports and do not find the words in brackets in any of them. It is a breach of the duty counsel owes to the court to mislead by misquoting dicta of Judges and I would advise the Senior Advocate not to allow sentiments for his client to divert him in future from the path of honour and justice. What I said which was reported at page 351 of (1983) 1 S.C.N.L.R. reads:
“The 1979 Constitution was not ordained by the National Assembly and Houses of Assembly of the States but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the States’ High Courts in exercise of their sovereign powers cannot therefore be limited other than as provided by the Constitution.”
The above represented and still represents my opinion on the extent of jurisdiction of States’ High Courts. It was a reaction to the attempted erosion of the unlimited jurisdiction of States’ High Court. .
The Courts in this country, without exception, have no power to prescribe jurisdiction for themselves. Neither do they have power to expand or reduce their area of jurisdiction. The exercise of their interpretative jurisdiction is to expound and declare the limits of their jurisdiction. To this end, it is once more necessary to advert to the provisions of section 230 of the 1979 Constitution of the Federal Republic of Nigeria as amended. They have already been set out above, but as I intend to make brief comments in paragraphs (a) and (b) of sub-section (1) of the section, a repeat of the provisions of these paragraphs will make for greater clarity. The paragraphs read:
“(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, 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; and
(b) In such other matters as may be prescribed as respects which the National Assembly has power to make laws.”
It is pertinent to observe that throughout the existence of the National Assembly, it did not enact any law prescribing matters under paragraph (a) or paragraph (b) in respect of which the Federal High Court shall have jurisdiction. However, sub-section (2) of the said section 230 enabled the Federal High Court to continue to exercise the jurisdiction hitherto vested in the Federal Revenue Court. This can be seen from the provisions of the subsection which read:
“Notwithstanding sub-section (1) of this section where by law any court established before the date when this sub-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.”
It is by virtue of the provisions of this sub-section (2) that the Federal Revenue Court established by the Federal Revenue Court Act, 1973, No. 13 was restyled and became the present Federal High Court. The civil jurisdiction of section 7(1) of the Act while the Criminal Jurisdiction is set out in section 7(2) of the Act. These two subsections read as follows:
“7(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to
(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation;
(ii) custom and excise duties;
(iii) banking, foreign exchange, currency or other fiscal measures;
(c) arising from
(i) the operation of the companies’ Decree, 1968 on any other enactment regulating the operation of companies incorporated under the Companies’ Decree, 1968 how Companies’ Act, 1968;
(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;
(d) of admiralty jurisdiction.
(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.”
The matters listed above and in the Constitution in respect of which jurisdiction has been expressly conferred on the Federal High Court lie within the competence of the Federal High Court with regard to the enforcement of Fundamental Rights provisions of the Constitution of the Federal Republic of Nigeria, 1979. Outside those specific matters, the Federal High Court is incompetent to exercise jurisdiction.
One observation that agitates my mind in this matter is the fact that the Federal High Court sat in Kano to adjudicate on this matter. This Court has not been called upon to answer the question whether the Federal High Court sitting in Kano is a High Court in Gongola State. But the provision of section 42(1) of the 1979 Constitution specifically empowers any person complaining of contravention of the Fundamental Right provisions in relation to him in any state to apply to a High Court in that State. The Constitution does not provide for any application to be made to a High Court sitting outside the State.
Thus, on the interpretation which I have given, any of the Fundamental Rights guaranteed by the provisions in Chapter IV of the Constitution if threatened or breached by any person in matters in respect of which the Federal High Court has jurisdiction in a State can be enforced and redress given by the Federal High Court in that State as such exercise will be within the Jurisdiction granted by section 42(2). The opinions echoed above by the learned Justices of the Supreme Court on the extent of the jurisdiction conferred on the Federal High Court were restated by this Court recently in the case of Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Ltd. and Nicanner Food Co. Ltd (1987) 1 N.W.L.R. (Pt.49) 212 at 227, per Coker, J.S.C.
Since the jurisdiction conferred by section 42(2) of the Constitution is a special jurisdiction and made subject to the provisions of the Constitution, the enforcement of the fundamental rights in matters outside the jurisdiction of the Federal High Court is not within and cannot be in the contemplation of the section. If any consideration and determination of the civil rights and obligations in matters outside the jurisdiction of the Federal High Court inextricably involves a consideration and determination of the breach or threatened breach of any of the fundamental rights provisions the exercise of jurisdiction which the Federal High Court does not possess is a nullity. The lack of jurisdiction inexorably nullifies the proceedings and judgment. It is therefore an exercise in futility.
In the instant appeal, all the breaches of the fundamental rights alleged flow from the deposition of the appellant from the office of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office and the deposition of the Emir a chieftaincy question which only a State High Court has jurisdiction to determine. The appellant in my opinion, is directly complaining by his claim or reliefs claimed and affidavit evidence, that his civil right as a chief has been breached and that in the process, his fundamental rights of fair hearing, liberty and freedom of movement have also been breached. His claim for an order to quash the order of deposition and restoration to the office is a relief the Federal High Court has no jurisdiction to entertain. It is only the High Court of Gongola State that has jurisdiction to grant the relief. Since the Federal High Court does not have jurisdiction to quash the order of deposition and order restoration of the appellant to his office of Emir of Muri, the jurisdiction to enforce the fundamental rights of fair hearing, liberty and movement of the appellant vests only in the High Court of Gongola State in the matter.
Turning to the reliefs or orders claimed by the appellant, I will take them one by one. The first relief is an order quashing the deposition of the Emir of Muri.
This relief can only be granted by the Gongola State High Court as the claim involves a determination of a chieftaincy question as defined in the Chiefs (Appointment and Deposition) Law. Ground one of the three grounds of the application is that the order violates section 33(1) of the Constitution, i.e., the right to fair hearing. It is more germane to say that the order was made in violation of the right of the appellant to fair hearing.
The second ground which is non-compliance with section 6 of the Chiefs (Appointment and Deposition) Law, Cap. 20, Vol. 1 of Northern Nigeria, 1963 applicable to Gongola State is not a ground which the Federal High Court has jurisdiction to determine. The 3rd ground is that section 1(1)(d) of Decree No. 17 of 1984 is inapplicable to the appellant. The issue raised by this ground is not within the jurisdiction of the Federal High Court. The question raised is whether the appellant is or is not an employee of the Jalingo Local Government Councilor whether the appellant is in the public service of Gongola State.
The Federal High Court therefore has no jurisdiction to grant the first prayer, i.e. to quash the Deposition Order.
The second relief claimed is a declaration that the appellant is still the Emir of Muri in the Jalingo Local Government Area and is entitled to all the rights and privileges pertaining thereto.
The question raised in this claim is not a fundamental right question. As in the first prayer, the right to be Emir is not guaranteed by the Fundamental Rights provisions of the Constitution and the Federal High Court has no jurisdiction whatever in the matter. The Court of Appeal was therefore not in error of law to hold that the Federal High Court has no jurisdiction to grant the two reliefs.
The third relief claimed is a declaration that the appellant’s detention was without justification and constitutes a violation of section 32(1) of the Constitution. The grounds on which this relief is sought are the same as those already stated for the first and second reliefs. This involves the question of the deposition of the appellant from the office of Emir which raises a chieftaincy question. This question is not one of the matters in respect of which the Federal High Court is given jurisdiction.
The fourth relief is for a declaration that being an Emir or traditional ruler does not derogate from the appellant’s right to freedom of movement. The same three grounds as given for the first three reliefs are the grounds on which this claim is founded. Apart from raising a chieftaincy question, the claim is hypothetical or academic.
The perpetual injunction claimed as relief No. 5 and the aggravated damages claimed as relief No.6 being predicated or founded on the three grounds are equally in respect of a chieftaincy question. Perpetual injunction to restrain the Military Governor from interfering with his rights as Emir and aggravated damages for deposing him and depriving him of his rights as an Emir. These are reliefs in respect of matters which the Federal High Court has no jurisdiction to entertain.
The Court of Appeal was therefore in error to entertain prayers 3, 4, 5 and 6 and grant the reliefs prayed for. The learned Justices of the Court of Appeal, in my view, failed to give adequate consideration to involvement of the chieftaincy question in the determination of whether or not there was a breach or threatened breach of any of the fundamental right question.
The appellant is not without a forum to pursue his claims. He has only approached the wrong court – a court which has no jurisdiction to adjudicate on all the questions raised by the appellant.
The submission of learned counsel for the Respondent that claims or prayers 3, 4, 5 and 6 are so intimately bound up with chieftaincy question that they cannot be determined without determination of the rights and obligations of a chief under the Chiefs (Appointment and Deposition) Law is well founded.
Before concluding this judgment, I would observe that the learned Justices of the Court of Appeal gave very sound reasons for allowing the Defendant’s appeal to it in respect of claims or prayers 1 and 2. The same reasons were sufficient to have persuaded the Court of Appeal to make the same pronouncement for prayers 3, 4, 5 and 6. If there is a court with jurisdiction to determine all the issues raised in a matter including the principal issue, it is improper to approach a court that is competent to determine only some of the Issues.
The incompetence of the court to entertain and determine the principal question is enough to nullify the whole proceedings and judgment as there is no room for half judgment in any matter brought before the court. It is a fundamental principle that jurisdiction is determined by the Plaintiffs claim [Izenkwe v. Nnadozie 14 W.A.C.A. 361 at 363 per Coussey, J.A.; Adeyemi v. Opeyori (1976) 9-10 S.C. 31 at 51]. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. [See Western Steel Works v. Iron and Steel Workers (1987) 1 N. W. L. R. (Pt. 49) 284.]
Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. [See The African Press of Nigeria and Ors. v. The Federal Republic of Nigeria (1985) 1 All N.L.R. 50 at 175; (1985) 2 N.W.L.R. (Pt.6) 137 at 165.] In the process of expounding the jurisdiction conferred on them the courts have always emphasised the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine. I will, in this regard, refer to two authorities (both of them decisions of this Court) which settled the law long before the 1979 Constitutional provisions. They are Lasisi Ajibola Odunsi v. Aminu Ojora (1961) All N.L.R. 283 and Arnold Nwafia v. Ububa (1966) N.M.L.R. 219.
In Arnold Nwafia v. Ububa the Respondent/plaintiff in the High Court claimed in the High Court of Eastern Nigeria that he was entitled in accordance with customary law to occupy and possess the house known as Uno Obu and the surrounding premises called Ilo Obu. In order to arrive at a decision of the claim, it was necessary for the court below (i.e. High Court) to decide whether the plaintiff was the Okpala of the Dunu family, i.e., whether he was the surviving eldest male in the line of Aguba. The learned trial Judge after hearing evidence granted the declaration. On appeal, the Supreme Court held that the High Court had no original jurisdiction to hear and determine the case and struck out the claim. Idigbe, J.S.C., delivering the judgment of the Court observed, commented and concluded at p. 222 after quoting the observation of the learned trial Judge as follows:
“The italic words in the ruling of the learned trial Judge set out above undoubtedly recognize the fact that an issue relating to family status arises in the case in hand; and it is in our view, a fundamental (not incidental) issue which must be resolved by the court before it can adjudicate on the claim before it The question of family status among “persons” subject to the jurisdiction of customary courts as defined in section 19(a) of the Customary Courts Law Eastern Nigeria, 1956 is undoubtedly a matter which is subject to the jurisdiction of the Customary Courts of Eastern Nigeria. By section 14 (formerly 13) of the High Court Law, Eastern Nigeria, the High Court except in the circumstances prescribed therein, has no original jurisdiction to determine the issue. This ground of appeal succeeds.
Accordingly, the appeal will be allowed. The judgment and order of the High Court dated 3rd day of August 1964 in suit 0/26/62 are hereby set aside and in substitution therefore, it is hereby ordered that the suit be struck out for want of jurisdiction.”
In the instant appeal, 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 Respondent is entitled to costs in this appeal fixed at N500.00 in this Court, N200.00 in the Court of Appeal and N200.00 in the High Court.
NNAMANI, J.S.C.: I had the advantage of a preview of the judgment just delivered by my learned brother, Obaseki, J .S.C., and I entirely agree with it. It seems to me that it has exhaustively dealt with all the issues raised before us. Any further comment can only be for purposes of emphasis. For that comment too, I shall adopt the facts, background of this case, and claims of the appellant as set down in the lead judgment, except such as I need for this comment. This matter arose from the deposition of the appellant as the Emir of Muri. Having obtained leave from the Federal High Court, Kano to enforce his fundamental rights, the appellant by motion on notice brought a suit in the same Federal High Court claiming 6 reliefs. An objection on grounds of jurisdiction by the Respondent was refused by the Federal High Court. On an appeal to the Court of Appeal, that Court held that the Federal High Court did not have jurisdiction to hear claims 1 and 2, but had jurisdiction to hear claims 3, 4, 5 and 6. Both the appellant and the Respondent filed an appeal and cross appeal to this Court respectively. While the appellant contended that the Federal High Court had jurisdiction to hear all his claims, the Respondent contended the exact opposite, i.e., that the court does not have jurisdiction to hear any of his claims. In his brief of argument, learned Senior Advocate for the appellant, Mr. Gally Brown-Peterside, identified a single issue for determination in this Court. In his view, 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 grounds 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”
Learned Senior Advocate, in oral argument, admirably shortened the formulation to “Can the Federal High Court exercising jurisdiction conferred on it hear and determine all the reliefs claimed by the appellant”
This formulation is closer to the shorter issue framed in the Respondent’s brief which was –
“Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that Court.” I think the first issue that one ought to consider is the nature of the claims for it is not in contention that it is the nature of the claim which determined whether the court has jurisdiction (See Adeyemi v. Opeyori (1976) 9-10 S.C. 31.) While the learned Senior Advocate contended that they dealt with the infringement of the fundamental rights of the appellant, Mr. Oyetibo, learned counsel to the Respondent contended that they all related to chieftaincy question – the deposition of the appellant. He argued that claims 1 and 2 were clear and that claims 3, 4, 5 and 6 were so intricately involved with the deposition of the appellant that they cannot be determined without dealing with a chieftaincy question. Looking through those claims, there is no doubt that claims 1 and 2 raise chieftaincy question and that the Court of Appeal was right in so holding. As to claims 3, 4, 5 and 6, and for the various lucid reasons given by my learned brother, Obaseki, J .S. C., I also hold that the reliefs are so inextricably joined with the deposition of the appellant that they cannot be determined without going back to that question. Without attempting to go through my learned brother’s argument, one notes that claims 3, 4, 5 and 6 were supported by an affidavit sworn to by Mallam Musa Chindo. Paragraph 4, sub-paragraphs 5,9, 18, 19 and 20 and paragraph 5 to which our attention was drawn are relevant. Sub-paragraph 20 for instance reads:
“That on the said 12/8/86 when applicant arrived in Yola to have audience with the Military Governor, he was handed two documents, one an order for deposition signed by the Military Governor of even date, and another a notice of deposition also dated 12th August, 1986”
It is also pertinent, for instance, to note that claim 3 asks for a further declaration that the applicant’s detention by the Military Governor aforesaid is without any justifiable cause whatsoever, a situation in which the whole deposition of the appellant is bound to be raised.
Having thus determined the nature of the claim before the court, does the Federal High Court have jurisdiction Once more, the perennial question of the jurisdiction of the Federal High Court arises. It seems to me to be a question that this court has settled in so many of its decisions. See Bronik Motors Ltd. v. Wema Bank Ltd. [1983] 1 S.C.N.L.R. 296; Mandara v. Attorney-General of the Federation [1984] 1 S.C.N.L.R. 311; African Newspapers v. Nigeria(1985)2 N. W.L.R. (Pt.6) 137 at 165; Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Ltd. and Nicannar Food Co. Ltd. (1987) IN.W.L.R. (Pt.49) 212, 227.
These decisions while acknowledging the unlimited jurisdiction granted to the State High Courts by section 236 of the 1979 Constitution, also underlined the limited jurisdiction granted the Federal High Court by Section 230 of the Constitution. The jurisdiction of the Federal High Court is only contained in Sections 42(2), 230(1) and (2) and 237 of the Constitution. Section 230(2) imports the jurisdiction already granted by the Federal Revenue Court Act No. 13 of 1973, while sub-section 1 talks of such jurisdiction as may be prescribed by the National Assembly. None has been so prescribed.
There is no doubt that Sub-section (1) of Section 42 of the Constitution merely prescribes a procedure for redress by any person who alleges that his fundamental rights have been or are in danger of being infringed. It is subsection (2) which confers jurisdiction on a State High Court (which by section 277 of the Constitution includes the Federal High Court) to hear and determine the application of any such person that applies.
From the nature of the claim seen here, it is only the State High Court with unlimited jurisdiction that can take a chieftaincy question. Mr. Brown Peterside, S.A.N., has, however, argued that the Federal High Court has jurisdiction too for he contend putting it too high, because of the jurisdiction granted under section 42 to enforce a fundamental right (here section 33 fair hearing), the Federal High Court would have jurisdiction to deal with any subject-matter in the course of which, or in respect of which, the alleged infringement of the fundamental right has occurred.
Considering that the State High Court has jurisdiction in chieftaincy matters, he contended that the Federal High Court has jurisdiction too and he relied on section 42 and 231 of the Constitution. After asking the question in his brief of argument “Can a Federal High Court, in the determination of a matter involving chieftaincy affairs, exercise the same jurisdiction which the State High Court has”
“The answer to this question it is respectfully submitted”, he continued, “can be found in Section 231(1) of the 1979 Constitution.”
That section provides as follows:
“231(1) For the purposes of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.” With respect to the first contention on the scope of section 42, it is clear that Mr. Peterside did not advert to the words of sub-section (2) of section 42. Particularly the words “subject to the provisions of this Constitution” at the beginning of that sub-section. The jurisdiction granted to the Federal High Court in section 42(2) must be read subject to the provisions of the Constitution. This must include subject to section 230(1) and (2) of the Constitution. In other words, the Federal High Court can exercise its jurisdiction under section 42(2) of the Constitution to enforce a fundamental right only in relation to those matters in which section 230(1) and (2) have conferred it with jurisdiction.,
As regards the contention over section 231, there is with all respect clearly a misconception about the true import of that section. The distinction between judicial power and jurisdiction must be always kept in mind. That section only confers on the Federal High Court the same power which a State High Court has while exercising its own jurisdiction, i.e., power to do things like issue a writ of summons, etc. It does not confer on it the jurisdiction which the Constitution has conferred on the State High Court.
The result is that it is the State High Court, not the Federal High Court, that has jurisdiction to entertain the appellant’s claims. This appeal must fail and it is accordingly dismissed. The cross-appeal is allowed. The appellant’s claims are struck out. I abide by all the orders made by Obaseki, J .S.C., including the order for costs.
Other Citation: (1988) LCN/2056(SC)
