Alhaji Umaru Abba Tukur V. Government Of Gongola State (1988)

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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.