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MR OLAWALE OJOGE
MRS BOLA OJOGE
MASTER TOMMY OJOGE
(An infant suing by his next friend Mr. R Olawale Ojoge)
FEYE OJOGE
(An infant suing by her next friend Mr. Olawale Ojoge) vs. IBRAHIM ABDULRAHAM (CONSTABLE)
SGT. AHMADU AMODU
AMINU AKANDE
PASTOR THANK GOD
AYOOLA OLANREWAJU
COMMISSIONER OF POLICE, OYO STATE HIGH COURT, OYO STATE IBADAN DIVISION M/11/2003
P. O. Ige, J.
Wednesday, 30th April, 2003 FUNDAMENTAL RIGHTS ENFORCEMENT ACTION – Breach of fundamental rights by officers of the Nigeria Police Force – Whether the Nigeria Police being a federal agency may be sued before a Federal High Court or State High Court – When the Federal High Court will have exclusive jurisdiction to hear fundamental rights enforcement action. CONSTITUTIONAL LAW – Section 46 of the 1999 Constitution of the Federal Republic of Nigeria – Jurisdiction to try fundamental rights enforcement actions - Whether lies concurrently in Federal and State High Courts Issue for Determination:
1. Whether Police Officers, as agents of the Federal Government within the meaning Section 251(1)(p)(q) and (r) of the Constitution of Nigeria 1999, retain their status as Federal Agents when carrying out state duties as to prevent then being sued before State High Courts
Facts:
Pursuant to a leave of court to enforce their fundamental rights, the Applicants/Respondents filed a motion on notice before the Oyo State High Court, Ibadan claiming that their arrest and detention by the Respondents/Applicants violated their rights guaranteed under Sections 34(1) and 35(1) of the 1999 Constitution. The 6th Respondent/Applicant filed a Notice of Preliminary Objection to the jurisdiction of the court, contending that only the Federal High Court had jurisdiction to entertain actions against federal agencies, and that since the Nigerian Police Force is a federal agency, the applicants/respondents ought have commenced their action before the Federal High Court and not the State High Court. They relied on section 251(1)(p)(q) and (r) of the Constitution, which gives the Federal High Court exclusive jurisdiction over lawsuits against any federal agency in support of their objection. Facts:
Pursuant to a leave of court to enforce their fundamental rights, the Applicants/Respondents filed a motion on notice before the Oyo State High Court, Ibadan claiming that their arrest and detention by the Respondents/Applicants violated their rights guaranteed under Sections 34(1) and 35(1) of the 1999 Constitution. The 6th Respondent/Applicant filed a Notice of Preliminary Objection to the jurisdiction of the court, contending that only the Federal High Court had jurisdiction to entertain actions against federal agencies, and that since the Nigerian Police Force is a federal agency, the applicants/respondents ought have commenced their action before the Federal High Court and not the State High Court. They relied on section 251(1)(p)(q) and (r) of the Constitution, which gives the Federal High Court exclusive jurisdiction over lawsuits against any federal agency in support of their objection. Held:
Section 251(1)(p)(q)(r) and (s) of the Constitution cannot be interpreted as giving jurisdiction to only the Federal High Court in any matter involving members of the Nigeria Police Force in an action for the enforcement of fundamental rights. The State High Court also has jurisdiction under section 46 of the Constitution in matters of enforcement of fundamental rights. Exclusive jurisdiction in fundamental rights actions will “belong” to the Federal High Court only where the action is concerned with matters reserved exclusively for the Federal High Court under section 251 of the Constitution. Details of Principles in Judgement: 1. On What Determines the Jurisdiction of Court in an Application for the Enforcement of a Fundamental Right
The law is firmly settled that the claims or reliefs of the plaintiff or applicant for the enforcement of Fundamental Rights determine the jurisdiction of the court to entertain the claim.[page 493 para F] 2. Whether the State High Court has Jurisdiction in a Fundamental Right Enforcement Action against the Nigeria Police Force or its Officers
Section 251 (1) p, q, r and s cannot be interpreted as giving jurisdiction to only the Federal High Court in any matter involving members of the Nigerian Police Force in an application or action for enforcement of fundamental human rights enshrined in the Constitution of the Federal Republic of Nigeria 1999 (Chapter IV). The State High Court has been assigned jurisdiction in matters of enforcement of Fundamental Rights of any person as provided under Section 46 of the Constitution.[page 500 paras E-F] 3. On When the Federal High Court will have Exclusive Jurisdiction to hear and Determine a Fundamental Right Application
The Federal High Court will have jurisdiction in matters involving the enforcement of Fundamental Rights where they are concerned with matters exclusively reserved for the Federal High Court under Section 251 of the Constitution of Nigeria 1999.[page 500 para G] On the Record: Per P. O. IGE, J.
“I will start with the case of Dr. Okoroma & Anor vs. Chief Christiana Uba & Ors (1999) 1 NWLR (Part 587) 359. It is a case of enforcement of Fundamental Human Rights. Five Police Officers including the Commissioner of Police, Enugu, were respondents. The Matter was filed at the Federal High Court. There was objection to the jurisdiction of the Federal High Court to the effect that only State High Courts have jurisdiction to hear the matter. Section 42 of the Constitution of Nigeria 1979 and Section 231(1) thereof were considered. Section 10 of the Police Act was also considered. Ubaezonu J.C.A. held on page 382 D-E as follows: “In other words, a litigant who wants to enforce his fundamental rights is at liberty to go to the State High Court or the Federal High Court but where he goes to the Federal High Court, it must be on matters in which the Federal High Court has jurisdiction. It merely gives the Federal High Court as the State High Courts, the jurisdiction to entertain matters relating to enforcement of fundamental rights but in doing that, the Federal High Court must confine itself to those matters in which it has jurisdiction to adjudicate. I shall give an example. If a person's fundamental right is infringed or threatened in matters pertaining to copyright, patents, designs or such like matters under section 7 of the Federal High Court Act or Section 230(1) of Decree 107 of 1993, he can commence a proceeding under the Fundamental Rights (Enforcement Procedure) Rules in the Federal High Court. If a matter is not covered by the specific constitutional provisions or the law giving the Federal High Court jurisdiction, one cannot bring the action in the Federal High Court, fundamental right or no fundamental right. ....
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... The 2nd – 6th respondents, although police officers …, are not Federal Government agencies within the meaning of Section 230 (1) (q), (r) and(s) of Decree 107 of 1993. So long as they are in the State carrying out State duties, they are not agencies of the Federal Government for the purposes of Section 230(1)(q), (r) and (s) of the Decree.” [page 495 paras A-F, page 496 paras E-F] Nigerian Cases Referred to in the Judgment:
1. A - G Lagos vs. The Hon Justice L. J. Dosumu (1989) 3 NWLR (Part 111) 552
2. Alhaji Lawan Zakari vs. I. G.P & Anor (2000) 8 NWLR (Part 670) 666
3. NDIC vs. C.B.N 7 NWLR (Part 766) 272
4. Okoroma vs. Chief Christiana Uba (1999) 1 NWLR (Part 587) 359
5. Police Commissioner Oyakhire vs. Alhaji M. Jen (2001) 1 NWLR (Part 694) 416
6. Prof Ita & Ors v. Bekomsom & Ors (2001) F.W.L.R. (Part 62) 1882
7. S.O. Akegbejo & Ors vs. D. O. Ataga & Ors (1988) 1 NWLR (Part 534) 559
8. Mil Ad Benue State vs. Capt Clement Abayilo Rtd (2001) 5 NWLR (Part 705) 19
9. Turkur vs. Government of Gongola State (1989) 4 NWLR (Part 117) 517
10. U.T.B. (Nig) Ltd vs. Innocent Ukpabia (2001) F.W.L.R. (Part 51) 1889
11. W. S. W. Ltd & Anor vs. I. S. W. U. of Nig & Anor (1987) 1 NWLR (Part 49) 284 Representation:
1. Gbenga Ojo Esq., for the Applicants / Respondents
P. O. IGE, J. (Delivering the Ruling): On 20th January, 2003, I granted leave to the Applicants/Respondents on the application under consideration to enforce their Fundamental Rights. Pursuant to the leave granted the Applicants filed motion on notice under Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 and under Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules of 1979 against the six Respondents in the main suit. When the Respondents were served with the court processes, the 6th Respondent/Applicant filed NOTICE OF PRELIMINARY OBJECTION which is couched as follows:- “TAKE NOTICE that the 6th Respondent/Applicant shall at the hearing of this suit raise a Preliminary Objection to the jurisdiction of this Honourable court to entertain this suit. TAKE FURTHER NOTICE that the grounds upon which the 6th Respondent/Applicant is making this application are as follows:- 1. The suit of the Applicants as it relates to their arrest, detention and impending prosecution by the Police……………….. a Federal Government Agency ought to be commenced at the Federal High Court and not at the State High Court. 2. The suit is incompetent. AND TAKE FURTHER NOTICE that the Respondent/Applicant will rely on all the processes so filed in the suit to argue the objection.” The application was supported by a 7 paragraph Affidavit. There is no Counter Affidavit filed by the Applicants/Respondents. Moving the application Mr. F. E. Orji for the 6th Respondent/Applicant referred to the Notice of Preliminary Objection. The 6th Respondent is challenging the jurisdiction of this court to entertain this suit. He informed the Court that the grounds for the application is that since the suit of the Applicants/Respondents was a challenge to their arrest and detention by a Federal Agent, the Police then the action ought to have been filed at the Federal High Court and not at the State High Court. Secondly, Counsel stated the other ground as incompetency of the action which he said ought to be struck out. He later stated that the application of Applicants ought to be dismissed. He relied on all the paragraphs of the Affidavit in support.
Counsel submitted that it is the intention of Section 251 of 1999 Constitution especially subsection (1) paragraphs p, q, and r that this action should commence at the Federal High Court. He relied on the case of S. O. Akegbejo & Ors. v. D. O. Ataga & Ors (1998) 1 NWLR (PART 534) 559; U.T.B. (Nig.) LTD. V. Innocent Ukpabia (2001) F.W.L.R. (PART 51) 1889 Ratios 1 and 2. He submitted that the Police derived its power under Section 4 of the Police Act and Section 10 of Criminal Procedure Act. These, according to Counsel, are not State laws. So Applicant cannot come to State High Court for redress against the Police. He submitted that the arrest, detention and or prosecution of any person by the Police is an executive action since that is the primary functions of the Police. He relied on ratio 4 of U.T.B.'s case supra. He also relied on the case of Prof. Ita & Ors v. Bekomsom & Ors (2001) F.W.L.R. (PART 62) 1882 Ratio 2. He informed me that all cases cited by him are on all fours with the facts of this case and any case to the contrary should be distinguished. In Reply, Mr. Gbenga Ojo for the Applicants/Respondents informed the Court that he is opposing on point of law. He submitted that the objection to the court's jurisdication is misconceived in law and ought to be dismissed because under Section 46(1) of 1999 Constitution and provision of Order 1 Rule 2(1) of Fundamental Rights Enforcement Rules this court has jurisdiction to enforce fundamental human rights. He contended that the infringement occurred in the State in which the High Court is situated. Secondly, Counsel to Applicants/Respondents submitted that I have jurisdiction over the Policemen who are Respondents herein because they work in this State to maintain security and public order in Oyo State and the Respondents are not Federal Agents for that purpose. He relied on the case of Okoroma v. Mba (1999) 1 NWLR (PART 587) 359 at 379-381. He therefore submitted that this action does not fall within Section 251 of 1999 Constitution. He finally urged me to dismiss the application of 6th Respondent/Applicant.
Now the law is settled that jurisdiction is the lifeline and spinal cord of a court of law. A trial without jurisdiction is a nullity. See NDIC V. C.B.N. 7 N.W.L.R. (PART 766) 272 at 295 B-G. In the case of The Attorney-General of Lagos State v. The Hon. Justice L. J. Dosunmu (1989) 3 N.W.L.R. (PART 111) 552 at 609(c) Kayode Eso J.S.C. (as he then was) put the matter succinctly as follows:- “It is futile to set down issues, deliberate on evidence led, resolve the points of law raised, if the court that is seised of the matter is devoid of jurisdiction. The substratum of a court is no doubt – jurisdiction. Without it the “labourers” therein, that is both litigants, and Counsel on the one hand and the Judge on the other hand, labour in vain.” So it is therefore necessary to examine the jurisdictional issue raised by the 6th Respondent/Applicant to determine whether I have jurisdiction in this matter. The law is also firmly settled that it is the claims or reliefs of the Plaintiffs (in this case the Applicants) that determine jurisdiction of the Court which entertains the claim. See Western Steel Workers LTD. & Anor v. Iron & Steel Workers Union of Nigeria & Anor (1987) 1 NWLR (PART 49) 284 at 296H to 297A. The reliefs being sought by the Applicants/Respondents are contained in paragraph 3 of the Statement filed by the Applicants. They are:- “(1) A DECLARATION that the Respondents acted in willful and brazen breach of the Fundamental Rights of the Applicants to personal liberty and human dignity Guaranteed by Section 34(1) and 35(1) of the 1999 Constitution and the African Charter of Human and Peoples Rights when on 6th October, 2002 they jointly and severally. (i) arrested, assaulted and detained the 1st and 3rd Applicants at the Apata Police Station, Ibadan. (ii) assaulted 2nd and 4th Applicants herein. (2) INJUNCTION restraining the 1st to 5th Respondents from assaulting and or arresting the Applicants in connection with or in respect of the alleged disconnection of electricity supply to the 1st Applicant's House situated at Apata Ganga, Ibadan.” As stated earlier, the main plank of 6th Respondent/Applicant's case is that all members of the Nigeria Police Force cannot be sued in a State High Court in matters relating to arrest, detention and prosecution of any person. And that whenever the Policemen including 6th Respondent/Applicant arrest and detain any person it is an executive action of the Police as agent of the Federal Government and as such, such action(s) can only be challenged at the Federal High Court. And that since this action is a challenge to the propriety of the arrest and detention of Applicants the proper forum is the Federal High Court, and not the State High Court. In the case of Universal Trust Bank of Nigeria Ltd. supra decided by Enugu Division of Court of Appeal it was held that if the Police arrest and detain a suspect such an exercise is executive action as imbued with Police Act and any aggrieved person should sue the Police in the Federal High Court having regard to provision of Section 230(1)(q), (r) and (s) of 1979 Constitution. See pages 1898 –1900 of the said report. In the case of Prof. Ita v. Bekonsom & Ors. (2001) F.W.L.R. (PART 62) 1877 1894 – 1895, the Court of Appeal, Calabar Division held that the proviso to Section 251 of 1999 Constitution does not confer concurrent jurisdiction on Federal High Court and a State High Court in all matters contained in Section 251(1) p, q, and r. Only the Federal High Court has jurisdiction once it concerns executive or administrative action of the Federal Government or any of its agencies.


If the two authorities are read together it means every Police Officer is an agent of the Federal Government who can only be sued in the Federal High Court. However on the other side of the divide are authorities that are clearly at variance and speaking differently from what UTB's case and Prof. Ita's case decided. I will start with the case of Dr. Okoroma & Anor. v. Chief Christiana Uba & Ors. (1999 1 NWLR (PART 587) 359. It is a case of enforcement of fundamental human hights. Five Police Officers including the Commissioner of Police, Enugu were Respondents. The matter was filed at the Federal High Court. There was objection to the jurisdiction of Federal High Court to the effect that only State High Court has jurisdiction to hear the matter. Section 42 of the Constitution of 1979 and Section 231(1) thereof were considered. Section 10 of Police Act was also considered. UBAEZONU J.C.A. held on Page 382 D-E as follows:-
“In other words, a litigant who wants to enforce his fundamental rights is at liberty to go to the State High Court or the Federal High Court but where he goes to the Federal High Court, it must be on matters in which the Federal High Court has jurisdiction. It merely gives the Federal High Court as the State High Court, the jurisdiction to entertain matters relating to enforcement of fundamental rights but in doing that, the Federal High Court must confine itself to those matters in which it has the jurisdiction to adjudicate. I shall give an example. If a person's fundamental right is infringed or threatened in matters pertaining to copyright, patents, designs or such like matters under Section 7 of the Federal High Court Act or Section 230(1) of Decree 107 of 1993, he can commence a proceeding under the Fundamental Rights (Enforcement Procedure) Rules in the Federal High Court. If a matter is not covered by the specific constitutional provisions or the law giving the Federal High Court jurisdiction, one cannot bring the action in the Federal High Court, fundamental right or no fundamental right. In Tukur's case (supra) Oputa J.S.C. considering the provisions of Sections 42 and 230 of the 1979 Constitution and Section 7 of the Federal High Court Act 1973 observed …………” And on Page 379G to 380A-C His Lordship Ubaezonu J.C.A. held earlier:-
“Let me give an example that shows how preposterous such a proposition could be – suppose A wants to sue X for a declaration of title to land trespass and injunction in respect of Blackacre situate at Enugu and X happens to be a messenger in the employment of the Court of Appeal which is a Federal Government institution (or if you like, Federal Government Agency) or a policeman in the Nigeria Police – can A bring his action in the Federal High Court because X is an officer in the Federal Public Service and the claim is for a declaration and injunction as postulated by section 230(1)(a) of the Decree? The answer is undoubtedly no. In my respectful view the word “Agencies” used in Section 230(1)(q), (r ) and (s) of Decree 107 of 1993 denotes the Federal Government establishments or organs through or by which the Federal Government carries on its functions – see University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 at 725 per Oguntade J.C.A. said he: “It seems to me that the use of the expression “any of its agencies” in Decree 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions …… one simply has to look at Decree 107 of 1993 and what it set out to achieve and then relate this to the ordinary function of the Federal Government.” (Italics mine for emphasis). I agree with my learned brother. The 2nd – 6th respondents although police officers in the Federal Government established, that is the Nigeria Police, are not Federal Government agencies within the meaning of Section 230(1)(q), (r ) and (s) of Decree No. 107 of 1993. So long as they are in the State carrying out State duties, they are not agencies of the Federal Government for the purpose of Section 230(1)(q), ( r) and (s) of the Decree.” The Second case is Alhaji Lawan Zakari v. Inspector-General of Police & Anor. (2000) 8 NWLR (PART 670) 666. The case has to do with enforcement of Fundamental Human Rights. It was the High Court, Abuja who raised the issue of jurisdiction in view of Section 230(1)(s) of 1979 Constitution suo motu believing that it is the Federal High Court that has exclusive jurisdiction. The Abuja High Court declined jurisdiction. The appellant appealed. Section 42(1) and (2) of 1979 Constitution which is the same as Section 46(1) and (2) of 1999 Constitution was considered. The appeal was allowed. On page 679 of Zakari's case Muntaka Coomaise, J.C.A. held at paragraph D thus:- “Pursuant to the provisions of Section 42(3) of the 1979 Constitution, the Chief Justice of Nigeria made rules for the enforcement of Fundamental Rights i.e. Fundamental Rights (Enforcement Procedure) Rules 1979, wherein by the provisions of ORDER 1 Rule 2 court was defined as “Court means the Federal High Court or the High Court of a State”. It is pertinent to state that it is trite that rules made pursuant to the Constitutional Provision also possess constitutional flavour. That being the case, it is therefore my view that the specific provisions made by the 1979 Constitution and preserved by Decree 107 of 1993 for the enforcement of Fundamental Human Rights, in case of breach, is the provisions of Section 42 of the 1979 Constitution supra. Moreso, when this section confers original jurisdiction on the High Courts, which has been defined by the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 as including “High Court” and “Federal High Court”. See Nemi v. The State (1994) 10 SCNJ at 20 where the Supreme Court, per Bello CJN. (as he then was) held as follows:- “The second category of the Fundamental Rights comprise those rights that are enforceable by the High Courts under Section 42 of the Constitution. Because the Constitution Expressly Confers Original jurisdiction for their enforcement on High Courts, this court has no jurisdiction as a Court of first instance over them.” (Italics mine for emphasis) I have closely and carefully too considered the provisions of Section 230(1) of Decree No. 107 of 1993 and after serious analysis of it I respectfully arrive at the following conclusions:- “(1) That the said Section does not in any way inhibit the operation of Section 42 of the 1979 Constitution, since in law there can be no repeal of a Constitutional Provisions by implication. (2) The said Section 230 is a general provision relating to the jurisdiction of the Federal High Court, while Section 42 of the 1979 Constitution relates to a specific jurisdiction for the enforcement of the Fundamental Human Rights provided for in Chapter IV of the 1979 Constitution. The position of the law is that where there are enactments, one making general provisions and the other specific provisions on a subject matter, the specific provisions are construed to be excluded by implication from the general provisions – See the case of Governor of Kaduna State v. Kagoma (1982) 6 S/C 87 at 107-108. Fatayi Williams CJN (as he then was) states thus:- “Before answering this question, I must point out that it is now trite that where [there] are two enactments, one making general provisions, as in the case of the provisions of Section 2 of the Commission of Inquiry Law (Cap. 25) and the other making specific provisions, as in the case of the provisions of Section 98 of the Local Government Law (No. 1 of 1977), specific provisions are, by implication, excluded from the general provisions.”

See also Section 251(1) of the 1999 Constitution. I therefore hold that both the High Court and the Federal High Court have concurrent and contemporaneous jurisdiction to enforce the Fundamental Rights provided for in the Constitution in case of a breach. I will mention in passing that looking close by at the provisions of Section 230(1)(s) of the said Decree 107 of 1993 one will be tempted to agree with the submissions of the learned SAN that the said provisions are ambiguous and equivocal. In that it does not expressly exclude Fundamental Rights. I therefore resolve this issue in favour of the appellant.” In the same case Oduyemi J.C.A. said on page 682D as follows:- “However, I wish to make the following comments in addition. Section 42 of the Constitution of the Federal Republic of Nigeria 1979 which has been fully quoted in the lead judgment gives to any person who alleges that provisions of Chapter IV of that Constitution which deals with Fundamental Rights have been, is being likely to be contravened in any state in relation to him may apply to the High Court in that State for redress. It also confers on a High Court original jurisdiction to hear and determine any application made to it pursuant to the provisions of the section, to make any orders, issue any writs and give such directions as it may consider appropriate for the purpose of seeking the enforcement within that State of any right to which the person who makes the application may be entitled to under the chapter.” See further:-
(1) The Military Administrator, Benue State & Ors. v. Captain Clement Abayilo (Rtd.) (2001) 5 NWLR (PART 705) 19 at 34. (2) Tukur v. Government of Gongola State (1989) 4 NWLR (PART 117) 517 at 546. It is now relevant to examine the provisions of Section 46 of the 1999 Constitution. It says:-
“46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High court in that State for redress. (2) 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 may 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 right to which the person who makes the application may be entitled under this Chapter. (3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this Section. (4) The National Assembly –
(a) may confer upon a High Court such powers in addition to those conferred by this section as may be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this Section… (italics mine) As can be seen from the reproduced provisions of 1999 Constitution, they are in pari materia with the provisions of Section 42 of 1979 Constitution which have been considered in numerous authorities some of which I have referred to in this Ruling. I am of the solemn view that Section 251(1) p, q, r and s cannot be interpreted as giving jurisdiction to only the Federal High Court in any matter involving members of the Nigeria Police Force in an application or action for enforcement of Fundamental Human Rights enshrined in Constitution of Federal Republic of Nigeria, 1999 (Chapter IV). The State High Court has been assigned jurisdiction in matters of enforcement of Fundamental Rights of any person as provided under Section 46 aforesaid. The Federal High Court will have jurisdiction in matters involving the enforcement of Fundamental Rights where they concerned with matters exclusively reserved for the Federal High Court in Section 251 of 1999 Constitution. See Police Commissioner Oyakhire & Ors v. Alhaji M. Jen (2001) 1 NWLR (PART 694) 416 at 433 A-H. In the result I hold that I have jurisdiction to entertain this matter. The application of 6th Respondent/Applicant is dismissed. No order as to costs.