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:-