Since the decision of the Supreme Court in Grace Jack vs. University of Agriculture, Makurdi, the overwhelming conclusion was that the question of which court has jurisdiction in fundamental rights matters had been settled. In that case the Supreme Court expressed the view that section 42 of the 1979 Constitution which is now section 46 of the 1999 Constitution as amended, creates a special jurisdiction for the enforcement of fundamental rights irrespective of the general provisions on the jurisdiction of the State and Federal High Courts. This brought certainty to fundamental rights litigation and succor for many who, for whatever reason, found the Federal High Court in the state where the alleged breach occurred, more convenient to pursue their fundamental rights claims.
Recent decisions of the Court of Appeal purportedly based on the decision of the Supreme Court in Adetona v. Igele General Enterprises Ltd would seem to have upended what was considered the settled position in Grace Jack’s case. In many cases, the Court of Appeal, relying on Adetona’s case, held that jurisdiction in fundamental rights cases is subject to the general jurisdiction of the High Courts, the effect being that a claimant must approach the court with primary jurisdiction over the ‘subject matter’ and ‘parties’. The Honourable Justice Idris, now a Justice of the Court of Appeal, first drew my attention to this trend in 2016 at the Federal High Court, Lagos Division before he was elevated to the Court of Appeal. I shared the comments below with his Lordship (without the 2017 decision of the Supreme Court on the issue) to which he agreed but nevertheless felt bound by the decision of the Court of Appeal on the matter. Incidentally, his Lordship concurred recently in a Judgment where the Court of Appeal expressed the sentiment in favour of post Grace Jack cases.
This commentary examines the decisions of the appellate courts since Grace Jack and opines that the premise upon which the Court of Appeal is moving from Grace Jack is fundamentally defective and that it is safer to allow both the Federal and State High Courts to have jurisdiction fundamental rights claims. The only limitation should be whether or not the main relief is a fundamental rights claim. If the main claim is not a fundamental rights claim, then the court with jurisdiction over the main relief should have jurisdiction. Interestingly, the decisions of the Court of Appeal on the issue are contrary to the latest decision of the Supreme Court on the matter.
Adetona v. Igele General Enterprises Ltd
The issue in this case was whether the Federal High Court had jurisdiction over a claim relating to the closure of the Respondent’s office by a Receiver/Manager. The Receiver/Manager had been appointed over the affairs of another company who occupies the same building with the Respondent. Galadima JSC, who delivered the lead judgment, held that the Lagos High Court was right to have assumed jurisdiction in the matter. No reference was made to fundamental rights in the lead judgment obviously because the issue did not arise in the case. Muhammad JSC however in his concurring judgment used fundamental rights cases to illustrate his point on the jurisdiction of the State and Federal High Courts under the Constitution thus:
“It has to be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which the court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to section 46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.”
Court of Appeal Post Grace Jack Decisions on Jurisdiction in Fundamental Rights Cases
The Court of Appeal in a number of cases amplified the illustrative view of Muhammad JSC in Adetona case to hold that fundamental rights jurisdiction is not ‘sui generis’ in the sense that it is controlled by the general jurisdictional provision of the Constitution. Some of these cases are follows:
1. Osunde v. Baba
In Osunde v. Baba (2014) LPELR – 23217 (CA) the court jettisoned the decision in Grace Jack. Justice Barka JCA explained the rationale as follows:
“There is no dispute even in the present contest as to whether the Federal High Court and the State High Court have concurrent jurisdiction to entertain issues bordering on fundamental rights, I understand the vexed issue as to whether the Federal High Court has jurisdiction on all matters relating to fundamental human rights. The respondents hold tenaciously to this position, relying on the holding of the Supreme Court in Jack v UNAM refusing to yield to the court’s position in the case of Adetona v. I.G. Ent. Ltd (2011) 7 NWLR (PT 1247) 535 at 564 per I.T. Muhammad J.S.C.”
The learned jurist concluded thus:
“I am in agreement with the appellants that the subject matter of the instant case does not fall within those matters captured by S. 251 of the Constitution. It is apparent that the appellants are agents of the state government; the wrong alleged against them was in pursuance of the duty reposed on them by the state… I equally agree with the appellants that this falls within the exclusive purview of the state high court, the learned trial judge’s holding to the effect that he had jurisdiction to try the instant case was made in error and I so hold.”
2. Udo v. Robson & Ors
The Court of Appeal here, after quoting copiously from Adetona’s case, held thus.
“From this decision, the law as it is now is that the Federal High Court has jurisdiction to hear any case where there is infraction of fundamental right but that the Federal High Court has jurisdiction only where the infractions are connected to the primary jurisdiction of the Federal High Court as listed in Section 251(1) of the Constitution. In the instant case, the reliefs sought have to do with arrest, detention, harassment and torture. This is a personal claim; it has nothing to do with the primary jurisdiction of the Federal High Court. So, the Federal High Court has no jurisdiction. I therefore agree fully with the learned Counsel for the Respondents that it is the State High Court that has jurisdiction in this case”
3. SCC Nigeria Limited & Anor v. David George & Anor
The issue raised by the Appellants was that the facts which culminated in the action related to labour and employment and ought to be handled by the National Industrial Court. The action had been filed at the High Court of the Federal Capital Territory. The Court of Appeal refused the Appellants argument and held that the complaints of the Respondent had to do with wrongful arrest simpliciter in respect of which a High court in any state has jurisdiction.
However, the court made a statement to the effect that where a fundamental human rights complaint bothers on the exclusive jurisdiction of any court, only that court can determine it. Adah JCA in the lead judgment quoted section 46 of the 1999 Constitution as amended and held thus:
“The reference to “a High Court” in this provision has created opportunity for any of the co-ordinate High Courts in a state where the breach occurs to handle or entertain it. The only rider is that there are issues of special jurisdiction as conferred on the Federal High Court and the National Industrial Court. Any breach of the fundamental rights that relates to the special or exclusive jurisdiction of any of the Courts will be handled exclusively by such a Court. It is obvious that baring that fact any other breach of the fundamental rights can be entertained by any of the High Courts, as the Courts share concurrent jurisdiction in fundamental rights enforcement”
There are a host of other cases including ISHOLA ABDULAHI v. OLUSEUN KOMOLAFE & ORS decided in 2019 and Iheanacho v NPF & Ors, IHEME v. CHIEF OF DEFENCE STAFF & ORS, NDLEA VS. OMIDINA and EFCC v. AGBELE where the Court of Appeal relied on Adetona ‘s case.
A critical review of Adetona’s case shows that the Court of Appeal erroneously relied on the case. Adetona’s case was not a fundamental rights action; hence, the lead judgment of Galadima JSC did not make reference to the issue. The question of the extent of jurisdiction of the Federal High Court and State High Court in fundamental rights cases therefore did not arise for determination by the Supreme Court in that case. The reference to fundamental rights was made in the concurring judgment of Muhammad JSC. The said reference was by way of illustration and clearly obita.
The case of Grace Jack where the Supreme Court held in effect that regardless of the subject matter of action or parties, both the Federal High Court and the State High Court have concurrent jurisdiction to determine issues of Fundamental Rights under Chapter IV of the Constitution has not been overruled and is still good law. It is submitted that Grace Jack must be expressly overruled before the decisions of the Court of Appeal can be justifiable.
Fundamental rights actions are sui generis; the only subject matter is alleged breach or threatened breach of fundamental rights guaranteed by the constitution. The facts culminating in the alleged breach or threatened breach is immaterial but the reliefs. There is nothing like fundamental rights in land matters, labor, trademarks etc. The framers of the Constitution were also quite aware that fundamental rights are ordinarily asserted against the state and its agents, whether at the State, Federal or Local Government levels, before they inserted section 46 in the Constitution. It therefore should not matter who the parties to the claim are. While the use of the term ‘subject to the provisions of this constitution’ in section 46 (2) of the Constitution may suggest that the jurisdiction of the High Court must be read in line with the general jurisdictions vested on the High Courts and now National Industrial Court, that conclusion is incompatible with the nature of a complaint of breach of fundamental rights. It is clearly incongruous to say that both the Federal and State High Courts have concurrent jurisdiction and at the same time limit it by reference to their general jurisdiction. If their jurisdiction is dependent on the subject matter or parties as defined under the general provisions on jurisdiction, there would have been no need for section 46 of the Constitution.
The essence of section 46 of the 1999 Constitution is the creation of a special jurisdiction for fundamental rights enforcement to ensure easy access to court. The application of the obita views of Muhammad JSC in Adetona’s case will do great violence to the Constitution. Apart from the fact that this gives room for another round of jurisdictional drag on justice delivery and access to justice in fundamental rights cases, it will be difficult to compartmentalize the facts for the purpose of determining which court to approach in many cases. Furthermore, the protection of fundamental rights is the responsibility of the Federation and based on international instruments, on the entire world as a whole. In a sense, Muhammad’s view in Adetona’s case will invariably deny a Federal Court of its duty to protect fundamental rights in most cases. In the same vein, the State High Courts will be unable to enforce fundamental rights predicated on international conventions.
Many decisions of the Court of Appeal support the comments above. Owoade JCA for example in EFCC & Ors v. Chukwurah recently adumbrated succinctly the constitutional imperative in the creation of a special jurisdiction for fundamental rights cases as follows:
…the determinant factor in finding jurisdiction of a Court for the purpose of the application of the Provision of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the principal reliefs of the applicant under the provision. It would be recalled that the intention of the draftsman of the Provision of Section 42 of the Constitution is to create special concurrent jurisdiction for the High Court in cases concerning breaches of fundamental rights of the citizens of Nigeria. It may therefore be contradictory to create a “subject matter” jurisdiction in terms of Criminal Offences to limit the operation of the Provision of Section 46 of the Constitution. Indeed if the draftsman of Section 46 of the Constitution wanted such specie of “subject matter” jurisdiction under the Section, he would have said so…”
Finally, the Supreme Court in December 2017 restated the settled position in Grace Jack. It is therefore surprising that some judges of the Court of Appeal are still hanging on the dry bones of the unnecessary obita view of Muhammad JSC in Adetona’s case. In FUTMINA & Ors v. Olutayo Eko JSC was emphatic in his lead judgment in a case which called for the resolution of the issue. His Lordship agreed with Grace Jack thus:
‘’On this issue, I have no hesitation agreeing with the respondent’s counsel that the settled position of the law that the jurisdiction to entertain actions for the enforcement of any of the fundamental rights guaranteed by the Constitution in Chapter IV thereof is concurrently vested in the Federal High Court and the State High Court. This is without prejudice to whether any of the parties is either the Federal Government or an agent or agency of the Federal Government. NEPA v. EDEGBERO (supra) is accordingly inapplicable as it does not deal with enforcement of fundamental rights. On the other hand, GARBA v. UNIVERSITY OF MAIDUGURI (supra); JACK v. UNIVERSITY OF AGRICULTURE (supra) as well as GAFAR v. GOVERNMENT OF KWARA STATE (supra) are very apposite.“
Kekere-Ekun’s concurring judgment explicitly illuminated the intention of the framers of the Constitution in section 46. His Lordship held thus:
‘’It is quite evident that Section 46(1) above refers to a High Court in that State without any restriction. The violation of a citizen’s fundamental rights is viewed 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 has occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacle placed in the path of enforcing those rights’’.
Interestingly, Muhammad JSC also concurred in the decision of Eko JSC. This can be taken to mean that even his Lordship has since moved away from his position in Adetona’s case.
In the light of the Supreme Court decision in FUTMINA, it is hoped that the Court of Appeal will put an end to this unnecessary waste of judicial ink in no distant future by recognizing the Obita decision in Adetona’s case for what it is. The overriding consideration should be easy access to justice in fundamental rights enforcement. The only limitation should be whether or not the claim is substantially a fundamental rights claim. Once that is established, any High Court should have jurisdiction. The courts are already overburdened by jurisdictional enquiries which, in most cases, obfuscate the real issues in controversy. Fundamental rights cases should not be allowed to be enmeshed in this murky aspect of our legal jurisprudence.
The post Grace Jack decisions of the Court of Appeal again underscores the need for adherence and consideration of precedent before any court decides a matter. The current trend of conflicting decisions brings the administration of justice to ridicule. There is need for investment in justice administration by the employment of clerks and researchers to assist judges in keeping pace with case law. There is also the need for intellectual law reporting. The present practice of reporting all judgments without consideration of their significance and relevance to existing precedent does not help the bar and bench. Courts should also limit their enquiry and decisions to the peculiar issues before them.
Elvis E. Asia is a Senior Counsel in Nigeria. Elvis can be contacted on: 09072546246, firstname.lastname@example.org
 2004) 5 NWLR (part 865) 208. See also Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt.1024) 375
 See the cases of Bronik Motors Ltd v. Wema Bank(1983)1 SCNLR 296, Tukur v. Government of Gongola State (1989) 3 NSCC 225 and GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550 for historical analysis of the jurisdiction of the High Court in fundamental rights cases.
 (2011) 7 NWLR (PR1247) 535
 (2014) LPELR – 23217 (CA)
 (2018) LPELR-45183(CA)
 (2019) LPELR-46963(CA)
 (2019) LPELR-46519
 (2017) 12 NWLR (PT 1580) 424
 (2018) LPELR-45354
 (2013) 16 NWLR (PART 1381) 589
 (2018) LPELR-44677(CA)
 See Emeka v. Okoroafor (2017) LPELR- 41738 (SC) and Bukar v. Hon. Minister, Federal Ministry of Health & Anor (2018) LPELR- 45381
 The law is trite that the constitution must be interpreted broadly to give effect to intention of the makers of the constitution. See See BRIG. GENERAL MOHAMMED BUBA MARWA & ORS V. ADMIRAL MURTALA NYAKO & ORS  LPELR –SC 141/2011 or (2012) 1 SC (Pt. III), GLOBAL EXCELLENCE COMMUNICATIONS LIMITED & ORS V. MR. DONALD DUKE (2007) LPELR-1323(SC)
 (2018) LPELR-43972(CA)
 See also SEED VEST MICROFINANCE BANK PLC & ANOR v. OGUNSINA & ORS, where Denton-West JCA reached the same conclusion and held that the special jurisdiction created under section 46 cannot be limited by other provisions on jurisdiction in the Constitution.
 (2017) LPELR-43827(SC)
 Taiwo Kupolati in his refreshing book, “The Art and Practice of Law Reporting”, 2005, had opined that decisions for reporting should be those that materially modify existing principles or which settles or materially settles doubtful questions. He also called for regulation of law reporting.
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