Chukwuemeka Nezianya & Anor V. Victor Nezianya & Ors (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

This appeal was argued on the 20th of February 2007 and was reserved for judgment. In the course of writing the judgment it became necessary to invite counsel to the parties to address this court on the question of whether or not the trial Federal High Court Enugu had jurisdiction to entertain the matter.

The learned counsel for the parties addressed this court on the 22nd of March 2007 by adopting their written addresses. From the Record of Appeal the Suit was filed under the Fundamental Rights (Enforcement Procedure) Rules 1979 and by virtue of Section of 42(3) of the 1979 Constitution of the Federal Republic of Nigeria.

The action was filed in March 1999 prior to coming into force of the 1999 Constitution. It follows therefore that the applicable law is Section 42(1) of the Constitution of the Federal Republic of Nigeria 1979 which is identical with Section 46(1) of the Constitution of the Federal Republic of Nigeria of 1999.

The learned counsel for the appellant submitted that the trial court namely, the Federal High Court Enugu lacked jurisdiction to entertain the suit because by virtue of Section 42(1) of the 1979 Constitution an action in respect of a breach of the fundamental rights of any person can only be instituted in a high court in the State where the breach occurred. He said that in the present case an alleged breach occurred in Anambra State but the action was instituted in the Federal High Court Enugu.

He relied heavily on the case of the Military Administrator Benue State and Others Vs Captain Abayilo (2001) 5 NWLR (Part 705) 19 in which the Court of Appeal Enugu Division held that the Federal High Court Enugu had no jurisdiction to entertain fundamental rights suit which arose in Benue State.

The learned counsel for the first respondent while agreeing that a fundamental right suit arising in the State may be filed in either the State High Court or the Federal High Court in that State based on the decision in the case of Grace Jack V. University of Agriculture Makurdi (2004) 5 NWLR (Part 865) 208, submitted that the Federal High Court Enugu had jurisdiction over matters arising in Anambra State and therefore it had jurisdiction to entertain the suit the subject of this appeal.

Section 42(1) of the 1979 Constitution reads:

“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.”

The language of this Sub-section is clear and unambiguous and must be given its ordinary interpretation. In the case of the Military Administrator Benue State and Others V. Abayilo (2001) 5 NWLR (Part 705) 19 in which the facts are identical with the present case, the alleged breach of fundamental rights was committed in Benue State but the case was filed in Federal High Court, Enugu which assumed jurisdiction. When the case came on appeal, the Court of Appeal of this very Division interpreted the Sub-section as at page 34 as follows:

“I dare say, these words are plain and unambiguous. In giving effect to their ordinary natural meaning it is irresistibly deduced that an aggrieved person can only “approach a High Court” situate in the very state where the threat or the breach of his fundamental rights occurred for redress. The sub-section appears to emphasize one very essential aspect of jurisdiction: venue. In Tukur’s case supra, the Supreme Court had occasion to consider s.42(1). At P.546 of the report Obaseki JSC in the leading judgment stated as follows:-

“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 … But the provision of S.42 (1) of the 1979 constitution specifically empowers any person complaining of contravention of the fundamental rights provisions in relation to him 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 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 jurisdiction granted by s.42(2).”

It is also the Supreme Court’s further decision in Tukur’s case at Pp.541, 549 and 564-565:-

(a) A state High Court has unlimited jurisdiction in unlimited matters and can hear and determine any civil and criminal proceedings.

(b) The Federal High Court has no jurisdiction to hear and determine chieftaincy matter.

(c) That where 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, and

(d) No court has the power to extend or limit its jurisdiction, courts can only expound their jurisdiction and in so doing must decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine.

We are bound by the foregoing see:

R.E.A.N. Ltd. v. Aswani Ind. Ltd. (1991) 2 NWLR (Pt. 176) 639 CA and Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540 SC. What facts respondent admitted in the skirmishes with the appellants a re as contained in paragraph 3 of the appellants’ affidavit which had been reproduced.

The respondent in this appeal cannot in view of the above interpretation given by the Supreme Court to S.42 of the 1979 Constitution apply to the Federal High Court sitting at Enugu for the enforcement of those rights which had been breached in Benue State. The lower court was wrong to have held that the respondent had the choice of either filing his suit at the High Court in Benue or the Federal High Court Enugu. The choice of either filing his suit at the High Court in Benue or the Federal High Court Enugu. The respondent as plaintiff could only have enjoyed the option if the Federal High Court were to be situate and sitting in Benue State.”

This court is bound by its own previous decision unless it has shown to be erroneous in law. I adopt the reasoning of the court in the earlier case to hold that the Federal High Court Enugu had no jurisdiction to entertain the case. While the Federal High Court has jurisdiction to entertain other matters arising in Anambra State which by law are within its jurisdiction when it comes to the matter of breach of fundamental human rights, it is only a Federal High Court or State High Court that is located within the territorial boundaries of Anambra State that can entertain it.

The learned counsel for the first respondent was at pains to persuade this court to hold that since the Federal High Court Enugu has jurisdiction extending to Anambra State, it has jurisdiction over the matter in question. That submission is totally misconceived having regard to the wording of Section 42(1) of the 1979 Constitution.

I expected the learned counsel for the first respondent to concede the point but he refused to do so. A good lawyer does not argue a point of view just for the sake of argument because the court is not an academic institution. A good lawyer knows when to concede an issue.

For all I have said in this judgment I hold that the trial court wrongly exercised jurisdiction by entertaining the suit brought before it by the first respondent. The proceedings including the judgment are a nullity and I hereby declare them a nullity. They are hereby set aside. The case of the 1st respondent in the court below is hereby struck out for want of jurisdiction. The 1st respondent shall pay costs of N5,000.00 to the appellants for this appeal.

Other Citations: (2007)LCN/2325(CA)