Attorney-general of the Federation V. Chief (Dr.) Zebolum Meschech Abule (2004)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the ruling of the High Court of Lagos State delivered on the 14th day of December, 2000 by Hon. Justice T.A.O. Oyekan-Abdulahi in suit No. M724/99 in which he granted the prayers of the respondent in an application for enforcement of fundamental human rights.
The respondent was tried and convicted by the Kano Zone of the Failed Banks Tribunal, of the offences of alleged failure to declare his interests in the loans granted by Crystal Bank of Africa Ltd. to companies in which the appellant was either Chairman or Director and failure to seek Central Bank of Nigeria approval whilst a director of the said Crystal Bank of Africa Ltd. contrary to section 18(3) of Banks and other Financial Institution Decree No. 25 of 1991 and punishable under section 18(9) of the said Decree. The respondent was not satisfied with that conviction and appealed to the then Special Appeal Tribunal sitting in Lagos which also decided against the respondent.
The respondent then applied to the High Court of Lagos State for the enforcement of his fundamental rights which application was granted in a considered ruling now subject matter of this appeal.
In arguing the appeal learned counsel for the appellant, C.I.J., Okpoko, Esq. of the Chambers of the Attorney-General of the Federation, in a brief of argument filed on 27/7/04 and which was adopted in argument of the appeal on 25/9/04 identified an issue for the determination of the appeal. The issue, which was also adopted in substance by learned counsel for the respondent in the respondent’s brief by Prof. Adesanya, SAN deemed filed on 20/9/04 is as follows:
“Whether the learned trial Judge was right in law when she assumed the jurisdiction to hear and entertain the respondent’s suit as constituted and conceived having due regard to the obvious provisions of sections 1(5) and 24(3) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 and section 230(1)(s) of 1979 Constitution as amended by Decree No. 107 of 1993?”
Learned counsel then submitted that by the combined effect of the provisions of sections 1(15), 24(3) of Decree No. 18 of 1994 and section 230(1)(s) of the 1979 constitution as amended by Decree No. 107 of 1993, the High Court of Lagos State lacks the jurisdiction to hear and determine the respondent’s matter. That where the provisions of the statute or constitution are clear and unambiguous, the literal rule of construction be applied to the words used relying on the case of lntemational Banks for West Africa Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633.
That section 24(3) of Decree No. 18 of 1994 forbids any inquiry into the exercise of the power of the Attorney-General by a private legal practitioner on his behalf under section 24(2)(b) of Decree No. 18 of 1994. That the said section 24(3) reinforces the unfettered powers of the Attorney-General under the common law or provisions of section 160 of the 1979 Constitution as amended. For this, learned counsel referred the court to the case of State v. Ilori (1983) All NLR 84 at 95-96; (1983) 1 SCNLR 94.
That as at the time the cause of action arose in the year 1996 and 1997, the High Court of Lagos State lacked jurisdiction to hear and/or entertain any suit seeking declaratory orders against the appellant’s exercise of his administrative powers relying on section 230(1)(s) of the 1979 Constitution as amended, Onyenucheya v. Min. Adm. of Imo State (1997) 1NWLR (Pt. 482) 429 at 452; A/i v. CBN (1997) 4 NWLR (Pt. 498) 192; University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706; NEPA v. Edegbero (2002) 18 NWLR (Pt.798) page 79 that the attitude of the court to ouster clauses is to decline jurisdiction relying on A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, at 580-581.
Learned counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.
On his part, learned counsel for the respondent submitted that since the proceedings at the lower court were instituted to enforce the fundamental rights of the respondent the ouster clause in section 1(5) of Decree No. 18 of 1994 is not applicable relying on the case of F.R.N v. Ifegwu (2003) 15 NWLR (Pt. 842) 113.
That the finality conferred on the Attorney-General of the Federation by virtue of section 24(3) of Decree No. 18 of 1994 does not apply where there is an allegation that the decision or action complained of is null and void for being unconstitutional, as in the present case relying at pages 199-200 per Ayoola, J.S.C., F.R.N v. Ifegwu (supra); Attorney-General for Bendel State v. Attorney-General of the Federation (1982) 3 NCLR 1; N.P.A. v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82.
On section 230(1)(5) of the 1979 Constitution, learned counsel for the respondent submitted that it does not apply to the facts of this case particularly as the application before the lower court is for enforcement of fundamental rights and that both the State and Federal High Courts have concurrent jurisdiction in the matter relying on Jack v. University of Agriculture Makurdi (2004) 5 NWLR (Pt. 865) 208 at 229.
Finally, learned counsel urged the court to resolve the issue against the appellant and dismiss the appeal.
The three provisions of the law on which learned counsel for the appellant based his submission that the High Court of Lagos State has no jurisdiction to entertain the matter as constituted are as follows:
Section 1(5) of Decree No. 18 of 1994 which provides thus:
“Notwithstanding, the provisions of the Constitution of the Federal Republic of Nigeria 1979 as amended or any enactment to the contrary, the supervisory jurisdiction or power of judicial review of a High Court shall not extend to any matter or proceeding before the tribunal duly constituted under this Decree.”
“24(3) The question whether any or what authority has been given in pursuance of subsection (2) of this section shall not be inquired into by any person other than the Attorney-General of the Federation.”
Finally section 230(1)(s) of the 1979 Constitution as amended by Decree No. 107 of 1993 provides as follows:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:
(s) 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.”
I agree with the submission of learned counsel for the appellant that where the words used in a statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary meaning as decided by the Supreme Court in the case of International Bank for West Africa Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633 at 668 per Wali, J.S.C. To that extent I agree that the words used in section 1(5) of Decree No. 18 of 1994 (supra) are very clear and unambiguous and completely ousts the jurisdiction of the High Court of Lagos State or any High Court for that matter, in relation to judicial review of any matter or proceeding, before the Failed Banks Tribunal duly constituted under the Decree. However, the basic question is whether the above principles of law apply to the facts of this case as to make them relevant and binding.
Both parties are agreed that the proceedings giving rise to this appeal is basically for the enforcement of fundamental rights. That being the case, it is not a proceeding under the supervisory jurisdiction of the High Court over inferior courts or tribunals or one for judicial review of such court’s or tribunal’s proceedings or decisions. It must, however, be noted that this appeal is not on the merit of the ruling or decision of the matter before the lower court but on the jurisdiction of that court to entertain the matter.
Now both parties having agreed that the proceeding in the lower court involved enforcement of fundamental rights, the question then is whether such proceedings are of the nature of judicial review and thereby ousted by the provisions of the said section 1(5) of Decree No. 18 of 1994 (supra).
The term ‘judicial review’ is defined by “Black’s Law Dictionary” 7th edition as follows, at page 852:
“1. A court’s power to review the actions of other branches or levels of government; especially, the court’s power to invalidate legislative and executive actions as being unconstitutional.
- The constitutional doctrine providing for this power.
- A court’s review of a lower court’s or an administrative body’s factual or legal findings.”
For the purposes of the facts of this case, the relevant definition is what is stated under No.3 (supra).
To answer the question whether a proceeding for the enforcement of fundamental rights is one by way of judicial review, one has to look closely at the relevant law applicable. In the case of Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 113, the Supreme Court made clear pronouncements on section 1(5) of Decree No. 18 of 1994 and its applicability to actions for the enforcement of fundamental rights. At page 178 of the report Uwaifo, J.S.C. has these to say on the matter; inter alia:
“With due respect, I do not think that the argument of the learned Senior Advocate for the appellant that it is not within the competence of the Federal High Court to entertain an action of this type which is brought to protect a fundamental right is tenable. Section 1(5) of Decree No. 18 of 1994 relied on by the appellant does not affect that right. The said provision was meant to deny a High Court the exercise of its supervisory jurisdiction or powers of judicial review in regard to Failed Banks Tribunal proceedings. It read thus:
“Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria, 1979, as amended, or any enactment to the contrary, the supervisory jurisdiction or power of judicial review of a High Court shall not extend to any matter or proceeding before the tribunal duly constituted under this Decree.” (italics mine).
But the jurisdiction conferred on a High Court under section 46 of the 1999 Constitution (which is in pari materia with section 42 of the 1979 Constitution) is neither a supervisory jurisdiction nor the power of judicial review. It is far beyond and outside of that. It is a special jurisdiction conferred under Chapter IV provisions mainly for the purpose of enforcing or securing the enforcement of fundamental rights.
Again Ayoola, J.S.C. at pages 199 to 200 has these to emphasis on the point in issue.
“Where the jurisdiction of the High Court is invoked (sic) under sub-section (1) of section 46 of the 1999 Constitution which is in the same terms as sub-section (1) of section 42(1) of the 1979 Constitution for redress for alleged contravention or likely contravention of the Fundamental Human Rights provision of the Constitution, the jurisdiction that the High Court exercises is a special jurisdiction and not a general supervisory jurisdiction or a general power of judicial review. When an agency of state by its act or omission contravenes the fundamental right of a citizen, the right of the citizen to seek redress is not excluded merely because the act is manifested by a decision of a tribunal, whether declared final or otherwise. That the agency of state that had occasioned the alleged contravention is a tribunal that had done so in the course of a proceeding would not make the exercise of the special jurisdiction of the High Court one of judicial review… for these reasons I hold that the Federal High Court had jurisdiction, not affected by the exclusion of power of judicial review, to entertain the matter… ”
It is trite that the constitution being the organic law of the country declares in a formal, emphatic and binding principles the rights, liberties, responsibilities etc. of the people including the government and it is the duty of the authorities, which include the judiciary, to ensure its observance. Fundamental rights are regarded as part of human rights and are protected to enhance human dignity and liberty. The position of the courts is therefore very important for the purpose of safeguarding the fundamental rights of persons through effective intervention whenever-it is shown that such rights have been or are being threatened to be violated. These, to me, form the basis of the rationale for the court’s reluctance to apply the provisions of the said section 1(5) of the Decree No. 18 of 1994 to proceedings for the enforcement of fundamental rights.
However, at page 427 of the record the learned trial Judge came to the following conclusion on the ruling now on appeal:
“I therefore declare that the orders and judgment of the 3rd respondent in this case is null and void and applicant prayers 1-4 is accordingly granted.”
Now the said prayers 1-4 granted by the court are reproduced in the ruling of the court at page 409 of the record as follows:
“1. A declaration that there was no valid criminal charge preferred against the applicant before the Failed Banks Tribunal, Kano Zone 1, Kano, in charge No. FBT/KNZ/CR/2/96.
- A declaration that the forwarding of the records of proceeding by the said Failed Banks Tribunal, Zone 1, Kano, the Special Appeal Tribunal, Lagos, outside the seven (7) days and the delivery of the judgment after the six (6) weeks, is commanded by the law maker in section 18(2)(b) and section 19 of Decree No.3 of 1984 (as amended) is irregular, improper, null and void.
- A declaration that the non-compliance with the rules governing the Constitution of the panel of the 3rd respondent throughout the reading of the applicant’s appeal contrary to section 15(2)(b) and (d) of Decree No.3 of 1984 is incompetent, invalid, irregular, null and void.
- An order of certiorari quashing all/or and proceeding(s), ruling(s), judgment(s) and/or order(s) that were not in compliance with section 15 – 20 Decree No.3 of 1984 (as amended) on SAT/FBT/374/97.”
In the case of Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425, the Supreme Court held that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing an action in a High Court. Learned counsel for the respondent has argued and I agree with him that the manner in which the court is approached for the enforcement of a fundamental right does not matter once it is clear that the originating process seeks redress for the infringement of the right so guaranteed under the Constitution. That the court process could be by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons.
However, that is not the problem with relief No. 4 granted along with the others in the ruling. Relief No.4 is an order of certiorari which usually brings up to the High Court, for the purposes of being quashed, the decision, of the inferior court or tribunal. In fact it is an order by way of judicial review usually exercised by the High Court under its supervisory jurisdiction of inferior courts or tribunals. This is very trite. That being the case, it is my considered view that the lower court, had no jurisdiction to grant relief No 4 as it did by virtue of the provisions of section 1(5) of Decree No. 18 of 1994. That even though you can enforce fundamental rights by way of declarations, you cannot definitely do that by way of certiorari. I therefore hold the view that to the extent that the lower court granted an order of certiorari in an application to enforce fundamental rights, the lower court lacked the jurisdiction to grant such an order and therefore strike out the said relief No.4 for being incompetent.
On section 24(3) of Decree No. 18 of 1994 and section 230(1)(s) of the 1979 Constitution as amended by Decree No. 107 of 1993, I agree with learned Senior Advocate of Nigeria for the respondent in his submission that the finality of the powers conferred on the Attorney-General of the Federation by section 24(3) of Decree No. 18 of 1994 has no application to a situation where it is alleged that the decision or action is null and void for being unconstitutional as in the present action. See Attorney-General for Bendel State v. Attorney-General for the Federation (1982) 3 NCLR 1; N.P.A. v. Panalpina World Transport Ltd. (1974) 1 NMLR 82 on interpretation of the word “final” by the Supreme Court, and F.R.N. v. Ifegwu (supra) at 181 per Uwaifo, J.S.C. Where it was held that where jurisdiction is being challenged, the fact that the statute setting up the tribunal says that its decision shall be final does not foreclose the jurisdiction issue.
It is very clear that section 230(1)(s) of the 1979 Constitution as amended by Decree 107 of 1993 is not applicable to the facts of this case being an action for the enforcement of fundamental rights.
Section 42(1) and (2) of this 1979 Constitution provide as follows:
“42(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.
(2) 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 may make orders, issue such writs and give such direction 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.”
On the other hand, section 230(1)(s) of the said 1979 Constitution provides this:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:
(s) 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.”
There is no doubt that the appellant is the Chief Law Officer of the Federation but section 42(1)(2) of the 1979 Constitution conferred a special jurisdiction on “a High Court” to hear and determine actions for enforcement of fundamental human rights. It never restricted the jurisdiction to the Federal High Court – which in any event is not found in every state of the federation so as to make it possible for the aggrieved person to apply to that court “in that state” as provided under section 42(1) of the said 1979 Constitution.
In the case of Jack v. University of Agriculture, Makurdi (supra), the Supreme Court, per Uwaifo, J.S.C. stated at page 229 of the report thus:
“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 about to take place. It is therefore, a section which should itself be regarded as special and fundamental. The court below was in error to hold that when a suit in respect of matters of fundamental right was brought against the Federal Government or any of its agencies, section 230(1)(s) of the 1979 Constitution (as amended) prevailed over section 42(1).”
On his part Katsina-Alu, J.S.C. stated the position at page 226 in the lead judgment of the court thus:
“Now, be that as it may, it has been contended for the respondent that Decree No. 107 of 1993 has taken away the jurisdiction of the State High Court. I am unable to agree with this contention. I have closely read Decree No. 107 of 1993 and I find nothing even remotely which has repealed or abrogated the provisions of section 42 of the 1979 Constitution. Rather a careful reading of the Decree reveals that the provisions of section 42 of the 1979 Constitution were preserved by Decree No. 107 of 1993. I would like to add that section 230(1) of Decree No. 107 of 1993 is a general provision relating to the jurisdiction of the Federal High Court while section 42 of the 1979 Constitution relates to special jurisdiction for the enforcement of the fundamental rights provided for in Chapter IV of the 1979 Constitution. As I have already stated, the High Court of Benue State has concurrent jurisdiction with the Federal High Court in matters of the enforcement of a person’s fundamental rights provided for in Chapter IV of the 1979 Constitution”. All emphasis supplied by me.
In conclusion I am of the opinion that the sole issue in this appeal be and is hereby resolved against the appellant except as regards relief No.4 granted by the lower court in its ruling on appeal which relief is accordingly struck out for lack of jurisdiction. I therefore find no merit in the appeal which is accordingly dismissed.
I however, make no order as to costs.
Appeal dismissed.
Other Citations: (2004)LCN/1650(CA)
