Lagos State Govt. & Ors v. Abdulkareem & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Division delivered on 21st July 2016 setting aside the judgment of the High Court of Lagos State delivered on 17th October 2014.

By an Originating Summons filed on 8th March 2013 and brought pursuant to Sections 38, 42 (1) (a) and (b) and 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria (LFN) 2004; Order 11 Rules (1), (2) and (3) of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the inherent jurisdiction of the Court, the 1st and 2nd respondents suing through their respective Next Friends along with the 3rd Respondent as applicants sought the following reliefs against the present appellants, as respondents:

(A) A Declaration that the continuous denial of the 1st and 2nd Applicants, female members of the 3rd Applicant and other female Muslim students who resolve or are obliged to use or are using Hijab (female Muslim head covering) as shown in Exhibits A and B within or outside the premises of any educational institution in Lagos State at any time is wrongful and unconstitutional as same constitutes violation of their rights to freedom of thought, conscience and religion, freedom from discrimination and right to the dignity of the human persons and right to education as guaranteed by Section 38(1) (a) & (b) and 42 (1) (a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9, Laws of the Federation, 2004).

(B) A Declaration that the punishment or humiliation of the 1st and 2nd Applicants, female members of the 3rd Applicant and any other female Muslim Students in any institution in Lagos State as a result of the use of Hijab by the students or pupils is a violation of the Applicants’ Fundamental Human Rights to freedom of thought, conscience and religion, freedom from discrimination and right to the dignity of the human person, right to education, and right to free association as guaranteed under Section 38 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act CAP A9, Laws of the Federation 2004).

(C) An Order of perpetual injunction restraining the respondents either by themselves, their officers, agents, privies or servants from further interfering or infringing in any manner on the Fundamental rights of the 1st and 2nd Applicants, female members of the 3rd Applicant and any other female Muslim Students who have resolved or are obliged to use or are using Hijab (female Muslim head covering) on their school uniforms, if any, of any educational institution in Lagos State as shown in Exhibits A and B within or outside the premises of any educational institution in Lagos State at any time in the exercise of their rights to freedom of thought, conscience and religion, freedom from discrimination and right to the dignity of human person, right to education, and right to free association as guaranteed under Section 38 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) ​ and Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap. 149, Laws of the Federation, 2004).

(D) A Declaration that any directive, instruction or order by the 1st-5th Respondents whether by themselves, their officers, agents, privies or servants premised on the purported minutes of meeting held on Thursday the 16th day of February, 2012 and issued by or at the instruction of 1st, 2nd, 3rd and/or 4th Respondents preventing or restricting the 1st and 2nd Applicants, the female Muslim members of the 3rd applicant and/or any other female Muslim students who is using or have resolved or are obliged to use Hijab (female Muslim head covering) on their school uniforms as shown on Exhibits “A” and ‘B” within or outside the premises of any educational institution in Lagos State at any time from doing so is a violation of their rights to freedom of thought, conscience and religion, freedom from discrimination and right to freedom of thought, conscience and religion, freedom from discrimination and right to the dignity of the human persons and right to education as guaranteed by Section 38(1) (a) & (b) and 42(a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 2, 5, 8, 10 17 and 19 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act CAP A9, Laws of the Federation, 2004.
AND for such order or further order as the Honourable Court may deem fit to make in the circumstances.

It was accompanied by an affidavit of 28 paragraphs deposed to by Alhaji Abdul Kareem Owolabi Raji, the Next Friend of the 1st Respondent, setting out the facts in support of the application with several exhibits annexed thereto. Also filed in support of the summons was a statement of facts pursuant to Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules 2009 and a written address. A further affidavit was deposed to on 27/5/2013 by the same deponent to which Several other Exhibits were attached.

​In opposition, the respondents filed a counter affidavit deposed to on 16th June 2014 by one Ebenezer Ade Olowoyeye, Assistant Director, Directorate of Basic Education Services, Office of the Commissioner for Education along with a written address. The applicants filed a reply affidavit sworn to on 30th June 2014.

All the processes filed were duly adopted and relied upon in support of the parties’ respective positions. The learned trial Judge, in a considered judgment delivered on 17th October 2014, dismissed the applicants’ suit and held, inter alia, as follows:
“As already stated above, the prescribed uniform engenders uniformity and allows students focus on the pursue their education together in an atmosphere that is mutually supportive, devoid of all and any distractions by signs of religious belief and affiliation. In other words, a refusal to allow the hijab to be worn over the prescribed school uniform is not tantamount to a breach of the freedom of religion guaranteed by the Constitution of 1999. I so hold.

The logical conclusion therefore also is that such refusal is not discriminatory against the applicants. Indeed, to the contrary, were they to be allowed to wear the hijab (headscarf) over the school’s uniform, the uniformity sought to be achieved by State will be Destroyed, and the non hijab wearing students will rightly feel inferior and discriminated against because they will no longer be equals – see Section 45(1) of the 1999 Constitution.

There is an obligation for every student enrolled in the school system to obey the regulations laid down by constituted authority. I therefore cannot agree with learned Senior Advocate Chief Kazeem’s submission that the applicants have a right to ignore such school regulations because of their belief stated above, the values of pluralism, respect for rights of other (who have subscribed to a non faith based educational system) and equality before the law dictate that no deviation from the regulation should be allowed.

In conclusion, I find that the refusal of the respondents to allow the Applicants wear the hijab (Islamic Scarf) on their prescribed uniforms is not a breach of their constitutional rights as guaranteed by Section 38 and 42 of the 1999 Constitution. I so hold.”

​The respondents were dissatisfied with the decision and appealed to the Court below. A full panel of the Court unanimously allowed the appeal and set aside the judgment of the trial Court. The appellants, not surprisingly, are dissatisfied with the judgment and have appealed to this Court vide their Notice of Appeal filed on 16/9/2016 containing 4 grounds of appeal.