Alhaji Umaru Abba Tukur v. The Government of Gongola State (SC 196/1987)[1989] NGSC 30 (5 September 1989)

In The Supreme Court of Nigeria

On Friday , 5th day of September, 1989

SC 196/1987

Between

Alhaji Umaru Abba Tukur ....... Appellant

And

The Government of Gongola State ....... Respondent

Judgment of the Court

Delivered by

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 aseertain 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:

Suhject to the pro visions of this Constitution, a High Court shall have original junsdiction 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 app rop nate for the purpose of enforcing or securing the enforcement within that State of any rights to which the p erson who makes the application may be entitled under this Chapter. (Italics mine)

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 exparte 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

Order2 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 Honourable 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, ALMAJI 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) Fora declaration that by virtue of paragraphs 1(1) to 1(iii) (supra), that the applicant is sti~ 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 Militiary 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.

(5) For a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant as guaranteed by Chapter IV of the said Constitution except in a manner prescribed by law and

(6) For aggravated and exemplary damages against the Military Governor for wrongfully infringing applicant's fundamental rights aforesaid.

and for such other order or orders as the court may deem just.

This application was supported by a 13 paragraphs affidavit sworn to by Musa Chindo, a brother-in-law of the appellant. It is also necessary to set out the statement made in support of the application for leave to apply for an order enforcing Fundamental Right as it contains the reliefs sought and the grounds for the applications. It reads:

1. The applicant is Alhaji Umaru Abba Tukur, OFR., Farmer of Emir's Palace, Jalingo, Muri, Gongola State;

2. The reliefs sought are:

(a) an order quashing the Deposition (of the Emir of Muri, Alhaji Umaru 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;

(b) a declaration that the applicant's detention from 12th August, 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;

(c) a further declaration that being an Emir or a traditional ruler does not derogate from applicant's right to freedom of movement throughout Nigeria as guaranteed by section 38(1) of the Constitution aforesaid;

(d) a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant as guaranteed by Chapter 4 of the said Constitution except in a manner prescribed by law; and

(e) aggravated and exemplary damages against the said Military Governor for wrongfully infringing applicant's fundamental rights as aforesaid and for such other order or orders as the court may deem just.

3. The grounds on which the reliefs are sought are as follows:

(1) That the said deposition 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, 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;

(2) 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

(3) That the said order having been purportedly made pursuant to section 12(1)(d) of Decree 17 of 1984 is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is 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.

Subsequently, i.e., on the 5th day of September, 1986, the Respondent filed an application challenging the jurisdiction of the Federal High Court to hear the case. The application was dismissed.

In his Ruling, Belgore, J. (as he then was) said, inter alia (after quoting

i section 42(1) of the Constitution of the Federal Republic of Nigeria, 1979)

combination of section 42(1) and definition in section 227 (of the Constitution) means, in my understanding, that Federal High Court has jurisdiction on any subject-matter involving allegation of breach or threat of r breach of fundamental rights. These rights embrace right to life, right to t dignity of human person, right to personal liberty, right to fair hearing, right to private and family life, right to peaceful assembly and association, right to freedom of movement and right to freedom from discrimination. In my opinion, the provision of section 42(1) of the Constitution has expanded the jurisdiction of the Federal High Court to any subject matter provided the litigation is in respect of breach or threat of breach of fundamental rights. It does not matter whether the decision arising from the issue of breach of the rights decides the issue finally or touches on modus operandi .................. ............................................................................................................................................................................................................................

I cannot accept the learned Director's submission that a determination of the chieftaincy issue is a pre-condition to the determination of the applicant's fundamental right.

I cannot accept that this Court has no jurisdiction on this question of fundamental right because the breach alleged was a chieftaincy matter a subject-matter which this court has no jurisdiction.

The second leg of the submission is that by virtue of Decree No.17 of (1984) under which the action was purportedly taken the jurisdiction of the court is ousted. The most relevant sections of Decree 17 are sections 3(2), (3), (4) and section 4.... If he is not a public officer, he could only be dealt with under other law which is not subject to Decree 17. The jurisdiction of the Court is not therefore ousted because the issue is not under Decree 17.

The two points of objection raised by the Respondent are therefore dismissed and the court affirms that it has jurisdiction to hear and determine the issue raised in the application and the motion."

Being dissatisfied with the decision, the Defendant appealed to the Court of Appeal. The matter came before the Court of Appeal holden in Jos (coram Maidama, Jacks and Adjo, JJ.C.A.). In the lead judgment delivered by Adio, J.C.A., concurred in by Maidama and Jacks, JJ.C.A., the learned Justice of the Court of Appeal said, inter alia.

The Federal High Court has no general civil jurisdiction other than those arising out of matters set out in section 7 of the Federal Revenue Court Act, 1973. There is no legislation which confers civil jurisdiction on the Federal High Court to try, entertain or determine chieftaincy questions and for that reason the court has no jurisdiction to entertain, try or determine chieftaincy

questions. The jurisdiction conferred upon the Federal High Court by section 42(1) of the Constitution is in relation to the enforcement of the fundamental rights provisions in the Constitution and where other issues on which the court has no jurisdiction are involved in such cases, the court can only in exercise of its jurisdiction under the section try such cases if it can effectively enforce the fundamental rights provisions without entering into any question relating to the determination of the issues on which it has no jurisdiction.

After citing Lasisi Ajibola Odunsi V. Aminu Ojora (1961) All N.L.R. 283 and Arnold Nwafla V. Ububa (1966) N.M.L.R. 219 (where it was held by the Federal Supreme Court that if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction ab initio to try the case; it should not embark on the trial of the case at all), the learned Justice continued:

As the Supreme Court pointed out in the African Newspapers case (supra) at p.175, Judges have a duty to expound the jurisdiction conferred on a court but it is not part of their duty to expand the jurisdiction beyond the line of demarcation drawn by the statute creating the court.

Applying the principles mentioned above to the Respondent's claim, I agree with the learned trial Judge that the Federal High Court has junsdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim in the manner and to the extent aforesaid. Their determination is possible without embarking on the determination of any question relating to the legal validity of the deposition of the Respondent as Emir of Muri. The learned trial Judge, however, erred in law, when he held that the Federal High Court had jurisdiction in respect of the claim in paragraphs 1 and 2 of the Respondent's claim.

The Federal High Court has no jurisdiction to entertain determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with the other aspects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.

This decision was delivered on the 21st day of June, 1988. The plaintiffl Respondent was dissatisfied with the decision and on the 24th June, 1988, filed his notice of appeal to this Court. On the 12th day of September, 1988, he filed a second notice of appeal.

At the hearing of the appeal in this Court, he abandoned the first notice of appeal. The notice of appeal dated 12th September, 1988 contains only one ground of appeal which, without the particulars reads:

The learned Justices of the Court of Appeal erred in law by misconstruing the full import of the jurisdiction conferred on the Federal High Court by the Constitution of the Federal Republic of Nigeria 1979 as amended, to try cases dealing with fundamental rights, in its Chapter IV thereof, when they held as follows:-

The Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with the other as~ects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.

The Defendant/appellant also cross-appealed against that part of the decision declaring that the Federal High Court has jurisdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim. The appellant's counsel formulated the issue for determination in his brief as follows:

Was the Court of Appeal right when it held as it did that the Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the appellant's claim either separately or in combination with the other aspects of the claim in the other paragraphs, notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution as amended, on the ground that the said court cannot effectively determine the issues which they involve without engaging in the determination of the legal validity of the deposition of the appellant as Emir of Muri which is a chieftaincy issue over which it has no jurisdiction?

The question naturally arises for determination having regard to that part of the decision of the Court of Appeal complained of.

The Respondent, in his brief, in view of the grounds of appeal in the plaintiffs appeal and the Defendant's appeal to the Supreme Court framed the issue for determination briefly as follows:

Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that court.

The Respondent's counsel has, in my view, correctly formulated the question or issue for determination before this Court having regard to the grounds of appeal set out in the notice of appeal given by the plaintiff/appellant/Respondent and the grounds of appeal set out in the notice of crossappeal given by the Defendant.

The submissions of Brown-Peterside, S.A.N., learned counsel for the appellant, were brief, concise and to the point. According to him, the learned Justices of the Court of Appeal recognised and acknowledged the fact that the issue of fundamental rights is intertwined with appellant's claims 1 and 2. He contended that section 42(1) of the 1979 Constitution read with the definition of the High Court in section 277(1) of the same Constitution as amended empowers the Federal High Court to hear and determine issues or matters involving fundamental rights. Learned counsel then referred to section 236(1) of the 1979 Constitution and concluded that from the extent of the powers given to a State High Court, chieftaincy matters must of necessity be included in the jurisdiction conferred on a State High Court. He then posed the question:

Can a Federal High Court, in the determination of a matter involving chieftaincy affairs exercise the same jurisdiction which the State High Court has?

and submitted that the answer can be found in the provisions of section 231(1) of the 1979 Constitution.

With profound respect to the learned Senior Advocate of Nigeria, section 231(1) of the Constitution only conferred all the powers of the High Court of a State on the Federal High Court for the purpose of exercising any jurisdiction conferred on it by 1979 Constitution or as may be conferred by an Act of National Assembly or a Decree promulgated by the Armed Forces Council. One will therefore search the provisions of section 231(1) of the 1979 Constitution in vain to get an answer to the question. The said section 231(1) reads:

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of National Assembly or a Decree of the Armed Forces Ruling Council, the Federal High Court shall have all the powers of the High Court of a State.

Surprisingly, the learned Senior Advocate submitted that by virtue of the foregoing this court should hold that the Federal High Court in the exercise of the powers conferred upon it by section 42(1) of the 1979 Constitution clearly has jurisdiction to hear and determine claims 1 and 2.

The learned counsel, after referring to the provisions of section 33(1) of the 1979 Constitution invited this Court to hold that the High Court of a State as well as the Federal High Court has unlimited jurisdiction in the determination of civil rights and obligations of any citizen. He finally contended that the Military Governor (or the Governor) is enjoined by section 6 of the Chiefs (Appointment and Deposition) Law Cap. 20, Laws of Northern Nigeria, 1963 to observe the principles of natural justice enshrined in section 33(1) of the 1979 Constitution when deposing a chief.

On the cross-appeal, the learned Senior Advocate referred to the provisions of sub-sections (1) and (2) of section 42 and sub-section (1) of section 231 and contended that they constitute the source of jurisdiction of the Federal High Court to entertain the matter. I find myself unable to agree with the learned Senior Advocate for the appellant that section 42(1) of the Constitution confers any jurisdiction on a High Court. Sub-section (1) of section 42 of the Constitution does not confer any jurisdiction on the High Court. It only provides an access to enable any person whose fundamental rights are threatened or breached to invoke the jurisdiction of the High Court. It is sub-section (2) of section 42 that confers the special jurisdiction on a High Court to hear and determine any application made to it in pursuance of the section.

The jurisdiction conferred is made "subject to the provisions of this Constitution." In other words, the jurisdiction conferred is controlled by other provisions of the Constitution. The phrase "subject to the provisions of the Constitution" can only mean "the provisions of the Constitution permitting it" See Omerod V. Domorden 8 Q.B.D., 664; Oke V. Oke (1974)1 All N.L.R. 443.

In Oke V. Oke (supra) the Supreme Court was called on to interpret or construe the provisions of section 3(1) of the Wills Law of Western Nigeria, 1959, applicable to Midwestern State which opened with the words '~subject to any customary law relating thereto." Elias, C.J.N., delivering the judgment of the court said at p.450:

The introductory phrase "subject to any customary law relating thereto" necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent to which, if any, its exercise is permissible under the relevant customary law.

In Akisatan Apena of Iporo V. Akinwande Thomas (1950) A.C. 227, the Privy Council had before it the question of the correct interpretation of section 12 of the Supreme Court Ordinance No.23 of 1943 Laws of Nigeria. That seetion opened with the words:

"subject to such jurisdiction as may for the time being be vested by Ordinance in Native Courts, the jurisdiction by this Ordinance vested in the Supreme Court shall include.... ......................................................................................... ............................................

Lord Simonds delivering the judgment of their Lordships said at p.234:

On the other hand, it appears to their Lordships that since by the terms of the Ordinance the jurisdiction vested in the Supreme Court was to include all His Majesty's jurisdiction, etc., the careful draughtsman might well think it desirable to make it clear that this enactment was not to prejudice the Native Courts in the exercise of such jurisdiction as might from time to time be vested in them. Accordingly, the section opens with the words which are apt to provide that safeguard.

The provisions of the Constitution to which section 42(2) is subject that readily comes to mind are sections 230(1) and (2) and section 236(1) and (2). Section 230(1) of the Constitution sets out the jurisdiction conferred on the Federal High Court by that section. It reads:

Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by the National Assembly now Armed Forces Ruling Council, the Federal High Court shall have jurisdiction:

(a) In such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly now Armed Forces Ruling Council; and

(b) In such matters as may be prescribed as respect which the National Assembly now Armed Forces Ruling Council has power to make laws.

2. Notwithstanding sub-section (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which sub-section (1) of this section relates, such court shall as from the date when this section comes into force be restyled '~Federal High Court" and shall continue to have all the powers and exercise the jurisdiction conferred upon it by law.

Sub-sections (1) and (2) of section 230 of the Constitution have been considered and interpreted in several decisions of this Court which include:

(1) Bronik Motors Ltd. v. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296.

(2) Mandara v. Attorney-General of the Federation (1984)1 S.C.N.L.R.311.

(3) African Newspapers V. Nigeria (1985) 2 N.W.L.R. (Part 6)137 at 165.

(4) Savannah Bank ofNigeria Ltd. V. Pan Atlantic Shipping and Transport Ltd. and Nicanner Food Co. Ltd. (1987)1 N.W.L.R. (Pt.49) 212 at 227.

The matters in respect of which the Federal High Court has jurisdiction are thus expressly limited by the Constitution. It is otherwise in respect of the High Court of a State as can be seen from the provisions of section 236(1) of the Constitution. That sub-section (1) of section 236 reads:

Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, a High Court of a State shall have unlimited jurisdiction to hear and determine any proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

Thus, a State High Court has unlimited jurisdiction in unlimited matters or can hear and determine any civil or criminal proceedings. Sub-section (2) of section 236 is also relevant as it provides definition for civil or criminal proceedings. It reads:

The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in exercise of its appellate jurisdiction.

Thus, while the matters in respect of which a High Court of a State has jurisdiction are unlimited, the matters in respect of which the Federal High Court has jurisdiction are strictly limited by the Constitution. This limitation imposed by the Constitution must necessarily affect the matters involving Fundamental Rights violation which can be adjudicated upon by the Federal High Court. Rather than expand the jurisdiction of the Federal High Court as erroneously held by Belgore, J. (as he then was), section 42(2) of the Constitution has by the opening phrase "subject to the provisions of the Constitution" limited the jurisdiction to enforce the fundamental rights provisions to matters in respect of which the Constitution has granted or invested it with jurisdiction.

The expression "subject to" in section 221(1) of the 1979 Constitution was recently construed by my learned brother, Karibi-Whyte, J.S.C., in Aqua Ltd. V. Ondo State Sports Council (1988) 10-11 S.C.N.J. 26 at 51. Delivereing his judgment in the matter, he said:

The expression "subject to" subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See L. S.D. P.C. v. Foreign Finance Corporation (1987) 1N.W.L.R. (Pt.50)413at461; Clard v. I.R. C. (1973)2AIIE.R. 513.

The effect of this is that section 221(1) of the Constitution 1979 does not apply to the circumstances covered in section 220(1).

I will also refer to the lucid consideration given to this phrase "subject to" by Kolawole, J.C.A.,in L.S.D.P. C. v. Foreign Finance Corporation (1989)1 N.W.L.R. (Pt.50) 413 at 461. There the learned Justice of the Court of Appeal was dealing with section 1 of the Land Use Act when he said:

Section 1 of the Act begins by saying that "subject to the provisions of the Decree." This phrase governs what follows by which all lands comprised in each State in the Federation are vested in the Military Governor of th at State.

Now what is the effect of the phrase "subject to the provisions of this Decree" on section 34 of the Act? Megarry, J. (as he then was), aptly gave consideration to that phrase. He said:

.......................The phrase "subject to" is a simple provision which merely subjects provision of the subject sub-section to the provision of the master sub-section. Where there is no clash the phrase does nothing. If there is collision, the phrase shows what is to prevail." See Clark Ltd. V. Inland Revenue Commissioners (1973) 2 All E.R. 513, 520.

Now if section 1 of the Act is subject to the provisions of the Decree can it be stated categorically that all land comprised in the territory of each State are vested in the Military Governor of the State. Section 1 subjects the provision to the provisions of the master sections in the Act.

The effect of the phrase "subject to the provisions of this Decree" in section 1 of the Land Use Act is brought out vividly by the provisions of section 49(1) and section 50(2) of the Act which are master sections. Section 49(1) reads:

Nothing in this Decree shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Decree and accordingly any such land shall continue to vest in the Federal Government or the agency concerned.

while section 50(2) reads:

The powers of a Military Governor under this Decree shall in respect of the Federal Capital Territory or any land held or vested in the Federal Government in any State, be exercisable by the Head of the Federal Military Government or any Federal Commissioner designated by him in that behalf and references in this Decree to Military Governor shall be construed accordingly.

It is therefore clear that section 1 of the Decree is subject to the provisions of sections 49(1) and 50(2) of the Act. As stated above, the Federal High Court only has jurisdiction in limited matters. Emphasising this point in Bronik Motors Ltd V. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296, Bello, J.S.C. (as he then was), held at page 333 that

In my view, the Constitution has not vested in Federal High Court general and unlimited jurisdiction in all matters with respect to which the National Assembly has power to make laws.

Also, on this question of the limitation on the jurisdiction of the Federal High Court, Idigbe, J.S.C. (of blessed memory), said at p.344:

It is the Federal High Court that has limited jurisdiction, limited in the sense that it has only so much of the jurisdiction conferred expressly by existing laws (See section 274(1) of the Constitution) which exists as Acts of National Assembly under subsection (2) of section 230 aforesaid and also under specific section of the 1979 Constitution (i.e. expressly prescribed thereunder) viz sections 42 and 237(2)(A) as well as such other jurisdictions as maybe conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution.

Nnamani, J.S.C., who delivered the lead judgment in the matter dealt extensively with the limits to the jurisdiction of the Federal High Court, after referring to the provisions of section 230(1)(a) and (b) and (2) said:

There is no gainsaying the section lacks precision and elegance. Nevertheless, having read the section together with other relevant provisions of the Constitution, I would not hesitate to conclude that upon the proper construction of section 230 in its ordinary and plain meaning, the jurisdiction of the Federal High Court is limited to -

(1) such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed. See section 230(1)(a);

(2) such other matters than those specified in (1) above as may be prescribed. See section 230(1)(b); and

(3) such jurisdiction as was vested in former Federal Revenue Court established under the provisions of the Federal Revenue Court Act, 1973: section 230(2).

It is pertinent, I think, to emphasise that the jurisdiction conferred on the Federal High Court which I have set Out in categories (1) and (2) above is not self-executing. There must be in existence an Act of the National Assembly authorising the exercise of such jurisdiction on a matter within the legislative competence of the National Assembly.

Finally, I may point out that the only jurisdiction which the Constitution specifically conferred on the Federal High Court is as follows:

(1) under section 42, the court has concurrent jurisdiction with the State High Court to grant redress for an infringement of a fundamental right; and

(2) under section 237 it has a temporary jurisdiction pending the constitutional establishment of Abuja as the Federal Capital Territory to determine any question whether any person has been validly elected to the office of President or Vice-President or whether the term of office of President or Vice-President has ceased.

Finally, on the same issue of jurisdiction of the Federal High Court, I observed at p.353 that

The Constitution in sections 42, 230(2) and 237(1) expressly conferred jurisdiction on the Federal High Court for the hearing and determination of certain specific matters but an Act of the National Assembly in sub-section (1)(a) and (b) of section 230 is yet to be passed.

These were all said in Bronik Motors Ltd. V. Wema Bank Ltd. (supra).

Having regard to my expressed opinion on the extent of jurisdiction, the Federal High Court at present has, I read with amazement, the dictum quoted in the brief of appellant/Respondent in the cross-appeal credited to me or as emanating from my mouth and my pen. The dictum quoted in the brief ran as follows:-

1979 Constitution was not ordained by the National Assembly and the Houses of Assembly of a State, but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the State High Court (and of course of the Federal High Court by section 231(1) of the 1979 Constitution) in exercise of their sovereign powers cannot therefore be limited otherwise than by the Constitution.

That was not my dictum and it was not culled from my judgment in the Bronik Motors Ltd. & Anor. V. Wema Bank Ltd. (supra) case. The words in brackets were not uttered or written by me and at no time did the impression that the Constitution by section 231(1) conferred unlimited jurisdiction find a place in my thoughts. I have looked up the Supreme Court Reports and the Supreme Court of Nigeria Reports and do not find the words in brackets in any of them. It is a breach of the duty counsel owes to the court to mislead by mis-quoting dicta of Judges and I would advise the Senior Advocate not to allow sentiments~ for his client to divert him in future from the path of honour and justice.

What I said which was reported at page 351 of (1983)1 S.C.N.L.R. reads:

The 1979 Constitution was not ordained by the National Assembly and Houses of Assembly of the States but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the States' High Courts in exercise of their sovereign powers cannot therefore be limited other than as provided by the Constitution.

The above represented and still represents my opinion on the extent of jurisdiction of States' High Courts. It was a reaction to the attempted erosion of the unlimited jurisdiction of States' High Court.

The Courts in this country, without exception, have no power to prescribe jurisdiction for themselves. Neither do they have power to expand or reduce their area of jurisdiction. The exercise of their interpretative jurisdiction is to expound and declare the limits of their jurisdiction. To this end, it is once more necessary to advert to the provisions of section 230 of the 1979 Constitution of the Federal Republic of Nigeria as amended. They have already been set out above, but as I intend to make brief comments in paragraphs (a) and (b) of sub-section (1) of the section, a repeat of the provisions of these paragraphs will make for greater clarity. The paragraphs read:

(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction -

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws."

It is pertinent to observe that throughout the existence of the National Assembly, it did not enact any law prescribing matters under paragraph (a) or paragraph (b) in respect of which the Federal High Court shall have jurisdiction. However, sub-section (2) of the said section 230 enabled the Federal High Court to continue to exercise the jurisdiction hitherto vested in the Federal Revenue Court. This can be seen from the provisions of the subsection which read:

Notwithstanding sub-section (1) of this section where by law any court established before the date when this sub-section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which sub-section (1) of this section relates, such court shall as from the date when this section comes into force be restyled "Federal High Court" and shall continue to have all the powers and exercise the jurisdiction conferred upon it by law.

It is by virtue of the provisions of this sub-section (2) that the Federal Revenue Court established by the Federal Revenue Court Act, 1973, No.13 was restyled and became the present Federal High Court. The civil jurisdiction conferred on the court is set out in section 7(1) of the Act while the Criminal Jurisdiction is set out in section 7(2) of the Act. These two subsections read as follows:

7 (1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to -

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation;

(ii) custom and excise duties;

(iii) banking, foreign exchange, currency or other fiscal measures;

(i) the operation of the companies' Decree, 1968 on any other enactment regulating the operation of companies incorporated under the Companies' Decree, 1968 how Companies' Act, 1968;

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of admiralty jurisdiction.

(2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by sub-section (1) of this section.

The matters listed above and in the Constitution in respect of which jurisdiction has been expressly conferred on the Federal High Court lie within the competence of the Federal High Court with regard to the enforcement of Fundamental Rights provisions of the Constitution of the Federal Republic of Nigeria, 1979. Outside those specific matters, the Federal High Court is incompetent to exercise jurisdiction.

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. This Court has not been called upon to answer the question whether the Federal High Court sitting in Kano is a High Court in Gongola State. But the provision of section 42(1) of the 1979 Constitution specifically empowers any person complaining of contravention of the Fundamental Right provisions in relation to him in any state 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 by the provisions in Chapter IV of the Constitution if threatened 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 the jurisdiction granted by section 42(2). The opinions echoed above by the learned Justices of the Supreme Court on the extent of the jurisdiction conferred on the Federal High Court were restated by this Court recently in the case of Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Ltd. and Nicanner Food Co. Ltd (1987) 1 N.W.L.R. (Pt.49) 212 at 227, per Coker, J.S.C.

Since the jurisdiction conferred by section 42(2) of the Constitution is a special jurisdiction and made subject to the provisions of the Constitution, the enforcement of the fundamental rights in matters outside the jurisdiction of the Federal High Court is not within and cannot be in the contemplation of the section. If any consideration and determination of the civil rights and obligations in matters outside the jurisdiction of the Federal High Court inextricably involves a consideration and determination of the breach or threatened breach of any of the fundamental rights provisions the exercise of jurisdiction which the Federal High Court does not possess is a nullity. The lack of jurisdiction inexorably nullifies the proceedings and judgment. It is therefore an exercise in futility.

In the instant appeal, all the breaches of the fundamental rights alleged flow from the deposition of the appellant from the office of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office and the deposition of the Emir a chieftaincy question which only a State High Court has jurisdiction to determine. The appellant in my opinion, is directly complaining by his claim or reliefs claimed and affidavit evidence, that his civil right as a chief has been breached and that in the process, his fundamental rights of fair hearing, liberty and freedom of movement have also been breached. His claim for an order to quash the order of deposition and restoration to the office is a relief the Federal High Court has no jurisdiction to entertain. It is only the High Court of Gongola State that has jurisdiction to grant the relief. Since the Federal High Court does not have jurisdiction to quash the order of deposition and order restoration of the appellant to his office of Emir of Muri, the jurisdiction to enforce the fundamental rights of fair hearing, liberty and movement of the appellant vests only in the High Court of Gongola State in the matter.

Turning to the reliefs or orders claimed by the appellant, I will take them one by one. The first relief is an order quashing the deposition of the Emir of Muri.

This relief can only be granted by the Gongola State High Court as the claim involves a determination of a chieftaincy question as defined in the Chiefs (Appointment and Deposition) Law. Ground one of the three grounds of the application is that the order violates section 33(1) of the Constitution, i.e., the right of fair hearing. It is more germane to say that the order was made in violation of the right of the appellant to fair hearing.

The second ground which is non-compliance with section 6 of the Chiefs (Appointment and Deposition) Law, Cap. 20, Vol.1 of Northern Nigeria, 1963 applicable to Gongola State is not a ground which the Federal High Court has jurisdiction to determine. The 3rd ground is that section 1(1)(d) of Decree No.17 of 1984 is inapplicable to the appellant. The issue raised by this ground is not within the jurisdiction of the Federal High Court. The question raised is whether the appellant is or is not an employee of the Jalingo Local Government Council or whether the appellant is in the public service of Gongola State.

The Federal High Court therefore has no jurisdiction to grant the first prayer, i.e. to quash the Deposition Order.

The second relief claimed is a declaration that the appellant is still the Emir of Muri in the Jalingo Local Government Area and is entitled to all the rights and privileges pertaining thereto.

The question raised in this claim is not a fundamental right question. As in the first prayer, the right to be Emir is not guaranteed by the Fundamental Rights provisions of the Constitution and the Federal High Court has no jurisdiction whatever in the matter. The Court of Appeal was therefore not in error of law to hold that the Federal High Court has no jurisdiction to grant the two reliefs.

The third relief claimed is a declaration that the appellant's detention was without justification and constitutes a violation of section 32(1) of the Constitution. The grounds on which this relief is sought are the same as those already stated for the first and second reliefs. This involves the question of the deposition of the appellant from the office of Emir which raises a chieftaincy question. This question is not one of the matters in respect of which the Federal High Court is given jurisdiction.

The fourth relief is for a declaration that being an Emir or traditional ruler does not derogate from the appellant's right to freedom of movement. The same three grounds as given for the first three reliefs are the grounds on which this claim is founded. Apart from raising a chieftaincy question, the claim is hypothetical or academic.

The perpetual injunction claimed as relief No. 5 and the aggravated damages claimed as relief No.6 being predicated or founded on the three grounds are equally in respect of a chieftaincy question. Perpetual injunction to restrain the Military Governor from interfering with his rights as Emir and aggravated damages for deposing him and depriving him of his rights as an Emir. These are reliefs in respect of matters which the Federal High Court has no jurisdiction to entertain.

The Court of Appeal was therefore in error to entertain prayers 3, 4, 5 and 6 and grant the reliefs prayed for. The learned Justices of the Court of Appeal, in my view, failed to give adequate consideration to the involvement of the chieftaincy question in the determination of whether or not there was a breach or threatened breach of any of the fundamental right provisions in question.

The appellant is not without a forum to pursue his claims. He has only approached the wrong court - a court which has no jurisdiction to adjudicate on all the questions raised by the appellant.

The submission of learned counsel for the Respondent that claims or prayers 3, 4, 5 and 6 are so intimately bound up with chieftaincy question that they cannot be determined without determination of the rights and obligations of a chief under the Chiefs (Appointment and Deposition) Law is well founded.

Before concluding this judgment, I would observe that the learned Justices of the Court of Appeal gave very sound reasons for allowing the Defendant's appeal to it in respect of claims or prayers 1 and 2. The same reasons were sufficient to have persuaded the Court of Appeal to make the same pronouncement for prayers 3, 4, 5 and 6. If there is a court with jurisdiction to determine all the issues raised in a matter including the principal issue, it is improper to approach a court that is competent to determine only some of the issues.

The incompetence of the court to entertain and determine the principal question is enough to nullify the whole proceedings and judgment as there is no room for half judgment in any matter brought before the court.

It is a fundamental principle that jurisdiction is determined by the Plaintiff's claim [lzenkwe V. Nnadozie 14 W.A.C.A. 361 at 363 per Coussey, J.A.; Adeyemi V. Opeyori (1976) 910 S.C. 31 at 51]. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. [See Western Steel Works V. Iron & Steel Workers (1987)1 N.W.L.R. (Pt. 49) 284.) Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. [See The African Press of Nigeria & Ors. V.

The Federal Republic of Nigeria (1985)1 All N.L.R. 50 at 175; (1985) 2 N.W.L.R. (Pt.6) 137 at 165.]

In the process of expounding the jurisdiction conferred on them the courts have always emphasised the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine. I will, in this regard, refer to two authorities (both of them decisions of this Court) which settled the law long before the 1979 Constitutional provisions. They are Lasisi Ajibola Odunsi V. Aminu Ojora (1961) All N.L.R. 283 and Arnold Nwafia V. Ububa (1966) N.M.L.R. 219.

In Arnold Nwafia V. Ububa the Respondent/plaintiff in the High Court claimed in the High Court of Eastern Nigeria that he was entitled in accordance with customary law to occupy and possess the house known as Uno Obu and the surrounding premises called lb Obu. In order to arrive at a decision of the claim, it was necessary for the court below (i.e. High Court) to decide whether the plaintiff was the Okp ala of the Dunu family,i.e., whether he was the surviving eldest male in the line of Aguba. The learned trial Judge after hearing evidence granted the declaration. On appeal, the Supreme Court held that the High Court had no original jurisdiction to hear and determine the case and struck out the claim. Idigbe, J.S.C., delivering the judgment of the Court observed, commented and concluded at p.222 after quoting the observation of the learned trial Judge as follows:

The italic words in the ruling of the learned trial Judge set out above undoubtedly recognise the fact that an issue relating to family status arises in the case in hand; and it is in our view, a fundamental (not incidental) issue which must be resolved by the court before it can adjudicate on the claim before it.......................................................................................................................................

................................................................................................................................................................................................................................

The question Of family status among "persons" subject to the jurisdiction of customary courts as defined in section 19(a) of the Customary Courts Law Eastern Nigeria, 1956 is undoubtedly a matter which is subject to the jurisdiction of the Customary Courts of Eastern Nigeria. By section 14 (formerly 13) of the High Court Law, Eastern Nigeria, the High Court except in the circumstances prescribed therein, has no original jurisdiction to determine the issue. This ground of appeal succeeds.

Accordingly, the appeal will be allowed. The judgment and order of the High Court dated 3rd day of August 1964 in suit 0/26/62 are hereby set aside and in substitution therefore, it is hereby ordered that the suit be struck out for want of jurisdiction.

In the instant appeal, the chieftaincy question being a fundamental issue which the Federal High Court has no jurisdiction to entertain, the Court of Appeal therefore erred in law in holding that the Federal High Court has jurisdiction to hear and determine prayers or claims No.3, 4' 5 and 6 of the claim and in remitting them to the Federal High Court for hearing and determination. The appeal fails and the cross-appeal succeeds. That decision is hereby set aside and in its stead an order striking out the entire suit for want of jurisdiction is hereby substituted.

The Respondent is entitled to costs in this appeal fixed at N500.00 in this Court, N200.00 in the Court of Appeal and ~200.00 in the High Court.

Judgment delivered by

Nnamani, J.S.C.

I had the advantage of a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C., and I entirely agree with it. It seems to me that it has exhaustively dealt with all the issues raised before us. Any further comment can only be for purposes of emphasis. For that comment too, I shall adopt the facts, background of this case, and claims of the appellant as set down in the lead judgment, except such as I need for this comment.

This matter arose from the deposition of the appellant as the Emir of Muri.

Having obtained leave from the Federal High Court, Kano to enforce his fundamental rights, the appellant by motion on notice brought a suit in the same Federal High Court claiming 6 reliefs. An objection on grounds of jurisdiction by the Respondent was refused by the Federal High Court. On an appeal to the Court of Appeal, that Court held that the Federal High Court did not have jurisdiction to hear claims 1 and 2, but had jurisdiction to hear claims 3,4,5 and 6. Both the appellant and the Respondent filed an appeal and cross-appeal to this Court respectively. While the appellant contended that the Federal High Court had jurisdiction to hear all his claims, the Respondent contended the exact opposite, i.e.,that the court does not have jurisdiction to hear any of his claims. In his brief of argument, learned Senior Advocate for the appellant, Mr. Gally Brown-Peterside, identified a single issue for determination in this Court. In his view it was,

Was the Court of Appeal right when it held as it did that the Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the appellant's claim either separately or in combination with the other aspects of the claim in the other paragraphs, notwithstanding the alleged violation of the fundamental rights guaranteed by Section 33(1) of the Constitution as amended, on the grounds that the said court cannot effectively determine the issues which they involve without engaging in the determination of the legal valididty of the deposition of the appellant as Emir of Muri, which is a chieftaincy issue over which it has no junsdiction?

Learned Senior Advocate, in oral argument, admirably shortened the formulation to

Can the Federal High Court exercising jurisdiction conferred on it hear and determine all the reliefs claimed by the appellant?

This formulation is closer to the shorter issue framed in the Respondent's brief which was

Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that Court.

I think the first issue that one ought to consider is the nature of the claims for it is not in contention that it is the nature of the claim which determined whether the court has jurisdiction (See Adeyemi V. Opeyori (1976) ~1O S.C. 31.) While the learned Senior Advocate contended that they dealt with the infringement of the fundamental rights of the appellant, Mr. Oyetibo, learned counsel to the Respondent contended that they all related to chieftaincy question - the deposition of the appellant. He argued that claims 1 and 2 were clear and that claims 3, 4, 5 and 6 were so intricately involved with the deposition of the appellant that they cannot be determined without dealing with a chieftaincy question. Looking through those claims, there is no doubt that claims 1 and 2 raise chieftaincy question and that the Court of Appeal was right in so holding. As to claims 3, 4, 5 and 6, and for the various lucid reasons given by my learned brother, Obaseki, J.S.C., I also hold that the reliefs are so inextricably joined with the deposition of the appellant that they cannot be determined without going back to that question. Without attempting to go through my learned brother's argument, one notes that claims 3, 4, 5 and 6 were supported by an affidavit sworn to by Mallam Musa Chindo. Paragraph 4, sub-paragraphs 5, 9,18, 19 and 20 and paragraph 5 to which our attention was drawn are relevant. Sub-paragraph 20 for instance reads:

That on the said 12/8/86 when applicant arrived in Yola to have audience with the Military Governor, he was handed two documents, one an order for deposition signed by the Military Governor of even date, and another a notice of deposition also dated 12th August, 1986........

It is also pertinent, for instance, to note that claim 3 asks for a further declaration that the applicant's detention by the Military Governor aforesaid is without any justifiable cause whatsoever, a situation in which the whole deposition of the appellant is bound to be raised.

Having thus determined the nature of the claim before the court, does the Federal High Court have jurisdiction? Once more,the perennial question of the jurisdiction of the Federal High Court arises. It seems to me to be a question that this court has settled in so many of its decisions. See Bronik Motors Ltd. V. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296; Mandara V. Attorney-General of the Federation [1984] 1 S.C.N.L.R. 311;African Newspapers V. Nigeria(1985) 2N.W.L.R. (Pt.6) 137 at 165; Savannah Bank of Nigeria Ltd. V. Pan Atlantic Ship ping and Transport Ltd. and Nicannar Food Co. Ltd. (1987)1 N .W.L. R. (Pt .49)212,227.

These decisions while acknowledging the unlimited jurisdiction granted to the State High Courts by section 236 of the 1979 Constitution, also underlined the limited jurisdiction granted the Federal High Court by Section 230 of the Constitution. The jurisdiction of the Federal High Court is only contained in Sections 42(2), 230(1) and (2) and 237 of the Constitution. Section 230(2) imports the jurisdiction already granted by the Federal Revenue Court Act No.13 of 1973, while sub-section 1 talks of such jurisdiction as may be prescribed by the National Assembly. None has been so prescribed.

There is no doubt that Sub-section (1) of Section 42 of the Constitution merely prescribes a procedure for redress by any person who alleges that his fundamental rights have been or are in danger of being infringed. It is subsection (2) which confers jurisdiction on a State High Court (which by section 277 of the Constitution includes the Federal High Court) to hear and determine the application of any such person that applies.

From the nature of the claim seen here, it is only the State High Court with unlimited jurisdiction that can take a chieftaincy question. Mr. Brown Peterside, S.A.N., has, however, argued that the Federal High Court has jurisdiction too for he contends in effect, that, and I hope I am not putting it too high, because of the jurisdiction granted under section 42 to enforce a fundamental right (here section 33 fair hearing), the Federal High Court would have jurisdiction to deal with any subject-matter in the course of which, or in respect of which, the alleged infringement of the fundamental right has occurred.

Considering that the State High Court has jurisdiction in chieftaincy matters, he contended that the Federal High Court has jurisdiction too and he relied on section 42 and 231 of the Constitution. After asking the question in his brief of argument

Can a Federal High Court, in the determination of a matter involving chieftaincy affairs, exercise the same jurisdiction which the State High Court has?

The answer to this question it is respectfuly submitted", he continued,

can be found in Section 231(1) of the 1979 Constitution.

That section provides as follows:

231 (1) For the purposes of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.

With respect to the first contention on the scope of section 42, it is clear that Mr. Peterside did not advert to the words of sub-section (2) of section 42 particularly the words "subject to the provisions of this Constitution" at the beginning of that sub-section. The jurisdiction granted to the Federal High Court in section 42(2) must be read subject to the provisions of the Constitution. This must include subject to section 230(1) and (2) of the Constitution. In other words, the Federal High Court can exercise its jurisdiction under section 42(2) of the Constitution to enforce a fundamental right only in relation to those matters in which secton 230(1) and (2) have conferred it with jurisdiction.

As regards the contention over section 231, there is with all respect clearly a misconception about the true import of that section. The distinction between judicial power and jurisdiction must be always kept in mind. That section only confers on the Federal High Court the same power which a State High Court has while exercising its own jurisdiction, i.e., power to do things like issue a writ of summons, etc. It does not confer on it the jurisdiction which the Constitution has conferred on the State High Court.

The result is that it is the State High Court, not the Federal High Court, that has jurisdiction to entertain the appellant's claims. This appeal must fail and it is accordingly dismissed. The cross-appeal is allowed. The appellant's claims are struck out. I abide by a~ the orders made by Obaseki, J S.C., including the order for costs.

Judgment delivered

Oputa, J.S.C.

I have had the privilege of a preview in draft of the illuminating lead judgment just delivered by my noble Lord, and learned brother, Obaseki, J.C., and I agree entirely and completely with his arguments, his resolution of the various issues, and his final conclusion that the appellant's appeal be dismissed and the Respondent's cross-appeal be allowed.

This appeal raises once more, the vexed question of the actual and exact extent of the jurisdiction and powers of the Federal Revenue Court rechristened the Federal High Court by section 230(2) of the 1979 Constitution. In this rather turbulent jurisdictional sea, we have the consolation that we are not sailing without a compass on an uncharted sea. The jurisdiction of the Federal High Court has been the subject of many decisions of this Court and object of some of its most far-reaching pronouncements.

In Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. [1983] 1 S.C.N.L.R. 296 this Court explored the extent, the boundaries and limits ofthe ~jurisdicuon of the Federal high Court and the judicial powers" conferred on that Court by sections 230 and 231 of the 1979 Constitution and arrived at the following conclusions that:-

i. The Federal High Court has limited jurisdiction in the sense that it has only so much of the jurisdiction conferred expressly by existing laws" which exist as Acts of the National Assembly under section 230(2) and also under specific Sections of the 1979 Constitution as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution (italics mine).

ii. Judicial power is not coterminous with "jurisdiction" though the former embraces the latter but they are interchangeable.

iii. A Court can only exercise judicial power within its authorised jurisdiction i.e. its authority to determine a particular case.

iv. Section 6 of the 1979 Constitution is not concerned with jurisdiction of Courts. Consequently, the concept of reference to the judicial powers of the Courts in determining the jurisdiction of the various Courts vis-a'-vis their power over State or Federal causes is completely extraneous to the spirit of the whole Constitution having regard to the various provisions of the 1979 Constitution conferring jurisdiction on various Courts.

v. Section 230(1)(b) of the 1979 Constitution is an enabling provision not a self executing one.

vi. There is no jurisdiction in the Federal High Court except as enabled by section 230 of the 1979 Constitution in regard to: -

(a) Matters (connected with or pertaining to the Revenue of the Federation) which are prescribed by the National Assembly by specific legislation.

(b) Matters (not connected with the Revenue of the Federation) which are precribed either by the Constitution or the National Assembly. Consequently, the jurisdiction of the Federal High Court does not extend to all federal causes or matters with regard to which the National Assembly is competent to make law.

vii. The jurisdiction of the State High Court under the 1979 Constitution is unlimited in all matters whether civil or criminal in both Federal and State Causes within the State except as limited by section 230.

viii. Where both the State High Court and the Federal High Court exist in a State both have concurrent jurisdiction in matters pertaining to Fundamental Rights.

The main issue for determination in this appeal will be whether s.42(1) of the 1979 Constitution deals with jurisdiction or access to the court in matters concerning Fundamental Rights.

I have set out in laborious detail the decision of this Court in Bronik's case (supra) as that seems to be our locus classicus on the exact limit of the junsdiction of the Federal High Court and on the fine distinction between the "jurisdiction of a court" and "the judicial powers" that, that court can exercise in the exercise of its undoubted jurisdiction. There ought, first and foremost, to exist a jurisdiction before the issue of the judicial powers exercisable under that jurisdiction can arise. The only issue in the present appeal therefore seems to be the question of whether or not section 42 of the 1979 Constitution converted the Federal High Court from a court of limited jurisdiction to a court of unlimited jurisdiction to consider causes emanating from and arising Out of "Chieftaincy matters"; causes which are so inextricably bound up with Chieftaincy Matters as subsidiary issues that one cannot decide the subsidiary without thereby deciding the ultimate. And this is so, irrespective of the fact that the subsidiary issues may involve issues relating to breaches of the fundamental rights provisions of Chapter IV of the 1979 Constitution.

In 1984, this Court examined, in the case of Alhaji Zanna Bukar Umoru Mandara V. The Attorney-General of the Federation [1984] 1 S.C.N.L.R. 311, the scope of section 7(3) of the Federal High Court Act 1973 and held that:-

1. The Federal High Court has no jurisdiction to try Mandara criminal charge and that

2. Section 7(3) of the Federal High Court Act 1973 simply amplified section (2) thereof and does not create any additional jurisdic

thereto.

In Mandara's case supra, Sowemimo, C.J.N., made the following cant pronouncement at p.331:-

As the former name of the Court is restricted, the Federal Revenue Co UT' although changed to Federal High Court, its jurisdiction as set out in subsection (1) of Section 7 has never been altered. All criminal matters whic3 that Court has jurisdiction to deal with under sub-section (2) must be with. the compass of sub-section (1). The suggestion that the criminal junsdiction

of that Court is unlimited is fallacious and not supported by law. . . . It is the duty of our courts to observe the different jurisdictions which are imposed I on those courts. It is our hope that the Federal High Court will continue to deal with revenue cases, except of course, the election petitions in the case of Presidential and Vice-Presidential elections.

Obaseki, J.S.C., at pp.342 and 343 of the record observed:-

342 Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive . . Jurisdiction is a power clearly visible to all beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.

343 The criminal jurisdiction conferred on the Federal High Court by section 7(2) having been related to causes and matters in respect of which civil jurisdiction has been conferred by Section 7(1), the subsection (2) cannot stand alone and independent of sub-section (1).

In the case now on appeal, the question will arise whether section 42 of the 1979 Constitution read with a microscopic and a telescopic eye telescopic in the sense that it will be read along with section 230 of the 1979 Constitution and section 7 of Act No.13 of 1973 - invested the Federal High Court with jurisdiction to deal with causes or matters (even though these incidentally touch the fundamental rights provisions of our Constitution) in respect of which civil jurisdiction had not been conferred on it by section 7(1) of the Federal High Court Act 1973.

Further pronouncements made by this Court in:-

(i) Jonah 0. Eze V. Federal Republic of Nigeria (1987)1 N.W.L.R. (Pt.51) 506,

(ii) African Newspapers of Nigeria Ltd. V. The Federal Republic of Nigeria (1985) 2 N.W.L.R. (Pt.6) 137; (1985)1 All N.L.R. 150; and

(iii) Savannah Bank of Ni geria Ltd. V. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1987)1 N.W.L.R. (Part 49) 212,

all go to show that unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a court of limited jurisdiction which cannot exercise jurisdiction over any cause or matter outside that conferred on it by section 7(1) of the Act No.13 of 1973 which created it and as enabled by s.230 of the 1979 Constitution or any other future Act of the National Assembly. In this case, the onus is on the appellant to show that his claims are covered by these constitutional provisions. From the above, it is quite clear that there is no paucity of decided cases or pronouncements of this Court on the jurisdiction of the Federal High Court. What is called for in this appeal is the application of the principles to be distilled from our previous decisions to the facts of the present case.

What are those facts? They are as follows:-

1. The Military Governor of Gongola State made an Order dated 12th August, 1986, removing Alhaji Umaru Abba Tukur as the Emir of Muri. The Order was known as and called "The Deposition (of the Emir of Muri, Aihaji Umaru Abba Tukur) Order 1986.

2. This Order came into force on the same date it was made i.e. 12th August, 1986.

3. Another Order was made on the 8th of September 1986. This other Order was also issued by the Military Governor of Gongola State. This second Order banished the deposed Emir to Mubi another town in Gongola State.

4. Pursuant to his deposition as an Emir and his banishment to Mubi, the said Aihaji Umaru Abba Tukur started the present proceedings in the Federal High Court Kano against the Governor of Gongola State.

5. The proceedings were started by a Motion on Notice pursuant to Order 4 Rule 1(2) and Order 6 Rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979.

The above is a summary of the main and relevant facts of this case.

From the above facts, even before considering the claim or relief sought which normally should determine jurisdiction, one initial question suggests itself - Why go to Kano State to sue for a cause of action which arose in Gongola State? It is here that one may have to look rather closely at section 42(1) of the 1979 Constitution which invested "the High Court" with "speciaI jurisdiction" to deal with breaches of the fundamental rights provisions of Chapter IV of the 1979 Constitution. That section provides:-

s.42-(i) 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 (italics mine).

In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or other of his fundamental rights to his liberty or to his freedom of movement. The contravention alleged took place in Ciongola State. From section 42(1) above, he has to apply "to a High Court in that State", that is, the High Court where the contravention or breach occurred. The Federal High Court Kano cannot be "a High Court in that State" which was envisaged by Section 42(1) above. Even if the jurisdiction of the Kano Judicial Division of the Federal High Court extends to and includes Gongola State, the Kano Federal High Court cannot, without undue violence to the plain meaning of words, be decribed as "a High Court in that State" namely a High Court in Gongola State. It is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the appellant in this case did not "apply to a High Court in that State" as required by Section 42(1) of the 1979 Constitution.

In one of our earliest cases, where the provision of section 42(1) of the 1979 Constitution was invoked - in Federal Minister of Internal Affairs & Ors. v. Shugaba Abdurrahaman Darman (1982) 3 N.C.L.R. 915, the applicant Darman applied to "a High Court in that State", to the High Court, Maiduguri, in Borno State. That was the correct venue. By going to Kano State, the appellant contravened the very Section 42(1) of the 1979 Constitution on which he attempted to build his case. The issue of venue was not taken up and argued in the parties' Briefs but being an issue of jurisdiction, the court can take it up itself at any stage. Also one of the decisions in Bronik (supra) was that where both the State High Court and the Federal High Court exist in a State, both have concurrent jurisdiction in matters of Fundamental rights.

Now let me consider the reliefs the appellant sought. Mr. Brown-Peterside, learned Senior Advocate of Nigeria, for the appellant, in his oral submission before us conceded that - "It is trite law that it is the nature of the claim that determines jurisdiction." I agree. One of the indicia of jurisdiction as decided by this Court in Madukoiu V. Nkemdilim (1962)1 All N.L.R. 587 at p.595 is that "the subject-matter of the case is within the jurisdiction of the Court." Jurisdiction may therefore imply the power or authority of a court to adjudicate over a particular subject-matter. The reliefs the appellant applied for in his Motion on Notice dated 28th August 1986 were 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, 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 therefore

(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 it cannot be said that the applicant is 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(i) to (iii) (supra), that the applicant is still the Emir of Muri, 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.

5. For a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsowever interfering with the liberty and rights of the applicant, as guaranteed by Chapter IV of the said Constitution except in a manner prescribed by law, and

6. For aggravated and exemplary damages against the said Military Governor for wrongfully infringing applicant's fundamental rights as aforesaid, and for such other order or orders as the Court may seem just.

The Respondent, on the 5th day of September, 1986, filed an application challenging the jurisdiction of the Federal High Court to entertain the applicant's action. Belgore, J. (as he then was) relying on sections 42(1) and 277 of the 1979 Constitution held inter alia:

In my opinion, the provisions of s.42(1) of the Constitution has expanded the jurisdiction of the Federal High Court to any subject-matter provided the litigation is in respect, of breach or threat of breach of fundamental rights. It does not matter whether the decision arising from the issue of breach of the rights decides the issue finally or only touches on Modus Operandi. As in this case, the merit of the case by the affidavit evidence of the applicant is not in issue, what is in issue is the method used by the authority. The applicant is not saying upon the facts alleged against him and the explanation I had given I ought not to be deposed which will be a pure chieftaincy matter. But he is saying no allegation was made against me and I was not given any opportunity to defend myself which is a case of breach of the fundamental rights. The first this court cannot look into but it has power to decide upon the second instance ... I cannot accept the learned Director's submission that a determination of the chieftaincy issue is pre-condition to the determination of the applicant's fundamental right.

I cannot accept that this court has no jurisdiction on this question of fundamental right because where the breach alleged was an issue of chieftaincy matter a subject-matter which this court has no jurisdiction on. This leg of the Learned Director's argument is therefore rejected.

The trial court then dismissed the Respondent's application and granted the applicant's prayers in their entirety.

Although the trial court dismissed the Respondent's application challenging the jurisdiction of the court, it accepted that it had no jurisdiction over Chieftaincy issues. '1 he only dispute then is whether or not the claims of the appellant as framed, radically, materially and substantially involved 'Chieftaincy' issues.

To resolve this problem, it will be relevant and revealing to look at the grounds on which the appellant based his reliefs. They are as follows:-

(1) That the said deposition order violates fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, 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.

(2) 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

(3) That the said order having been purportedly made pursuant to section (1)(1)(d) of Decree 17 of 1984 is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is 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.

A cursory glance at grounds 1 and 2 - the grounds relevant to the appeal quickly discloses the fact that the appellant's claims are inextricably linked with "the said deposition order" and "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."

There was an appeal by the Defendant (the present Respondent) against the judgment of the Federal High Court sitting in Kano to the Court of Appeal Jos Division (coram Maidama, Jacks and Adjo, JJ C. A.). The Court of Appeal on the issue of what jurisdiction, if any, the Federal High Court has as a result of section 42(1) of the 1979 Constitution, held as follows:-

The Federal High Court has no general civil jurisdiction other than those arising out of matters set out in section 7 of the Federal Revenue Act 1973. There is no legislation which confers civil jurisdiction on the Federal High Court to try, entertain or determine chieftaincy questions and for that reason the court has no jurisdiction to entertain, try or determine chieftaincy questions. The jurisdiction conferred upon the Federal High Court by section 42(1) of the Constitution is in relation to the enforcement of the fundamental rights provisions in the Constitution and where other issues on which the court has no jurisdiction are involved in such cases, the court can only in exercise of its jurisdiction under the section try such cases if it can effectively enforce the fundamental rights provisions without entering into any question relating to the determination of the issues on which it has no jurisdiction.

This, to my mind, is not an entirely correct statement of the law regarding the jurisdiction of the Federal High Court. Section 42(1) deals with access to the court (State and Federal High Courts) but it must be a court having jurisdiction.

In the application of the law to the facts of this case, bearing in mind the decisions in Lasisi Ajibola Odunsi V. Aminu Ojora (1961) All N.L.R. 283 and Arnold Nwafia v. Ububa (1966) N.M.L.R. 219, which the Court of Appeal apparently cited and followed, the Court below, with respect, erred. That court did not see that all the claims of the appellant were intimately and firmly riveted on his deposition and that all arose from th& Deposition Order and that it cannot determine the issues on which it, on the surface appeared, to have jurisdiction, without engaging in the determination of issues involving chieftaincy questions.

The Court of Appeal then wrongly decided that the Federal High Court has jurisdiction to determine appellant's claims 3, 4, 5 and 6 but lacked the jurisdiction to determine claims 1 and 2.

Both sides were dissatisfied with the Court of Appeal's decision above and both appealed against it - the appellants appealing against the decision that the trial Court had no jurisdiction to adjudicate over his Claims 1 and 2 while the Respondent cross-appealed against the lower court's decision that the trial court had jurisdiction to entertain claims 3, 4, 5 and 6. Both parties are quarrelling over the existence of non-existence of jurisdiction in the trial. court. It then follows that all the appellant's six heads of claims are affected or rather inflicted with the "virus" of lack of jurisdiction.

The parties filed their Briefs of Argument. Mr. Peterside, S.A.N., in his appellant/Respondent's Brief in Cross-Appeal at p.3 of the record, dealt with the Issue For Determination and contended as follows:-

Having carefully studied the record herein, and having read Respondent/ cross-appellant's Brief, I agree with the issue as formulated in that Brief namely:-"Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that Court.

Now there are two essential and primary aspects to the jurisdiction of a court. The first is the legal capacity, the power and authority of a court to hear and determine a judicial proceeding - in the sense that it has the right and power to adjudicate concerning the particular subject-matter in controversy. The second is the geographical area in which and over which the legal jurisdiction of the court can be exercised. This area of authority is called the area of geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction. Now the jurisdiction of a court can be limited or unlimited. The jurisdiction of a court may be limited either by the amount or value of the property in litigation or as to the type of subject-matter it can handle. Courts are creatures of statute and it is the statute that created a particular court that will also confer on it its jurisdiction. This may be extended, not by the courts, but by the Legislature for as this court observed in the African Newspapers of Nigeria Ltd. (supra), it is part of the interpretative functions of our courts to expound the jurisdiction of the Court but not to expand it.

With the above as a useful preamble, I will now tackle the one solitary issue for determination in this appeal - the jurisdiction of the Federal High Court vis-a-vis the appellant's 6 claims.

Territorial Jurisdiction or Venue

The right to apply to a High Court - the right of access - in instances of the infraction, or threatened encroachment, of a person's rights under Chapter IV of the 1979 Constitution otherwise called Fundamental Rights, was accorded by section 42(1) of that Constitution. That section also limited the courts that could be approached to "a High Court in that State" meaning a High Court in that State where the infringement or encroachment of the fundamental right occurred. From the facts, undisputed facts of this case, that Court should be a State High Court of Gongola State or a Federal High Court in Gongola State. From the above analysis, it is obvious that the Federal High Court, sitting in Kano, can by no stretch of the imagination be described as a High Court in Gongola State. The court chosen by the present appellant, the Federal High Court sitting in Kano lacked the geographical jurisdiction or venue. The appellant approached the wrong Court venue-wise: see Bronik Motors' case (supra).

Legal Jurisdiction

The Federal High Court chosen by the appellant was not created by section 42 of the 1979 Constitution. It was created by the Federal Revenue Act No.13 of 1973. Section 7 of that Act spelt out the jurisdiction as follows:

S.7-(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes or matters -

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to -

(i) the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal Taxation;

(ii) customs and excise duties;

(iii) banking, foreign exchange, currency or other fiscal measures

(i) the operation of the Companies Decree 1968 or any other enactment regulating the operations of companies incorporated under the Companies Degree 1986;

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(3) The jurisdiction conferred under the foregoing subsection in respect of criminal causes shall without prejudice to the generality of that sub-section and subject to section 63(3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The Head of the Federal Military Government may by order published in the Gazette confer jurisdiction on the Federal Revenue Court in respect of such other causes and matters of like nature as those set out in the foregoing sub-sections as he may from time to time at his discretion specify.

From the above, there can be no doubt that the Federal Revenue Court was established as a court of limited jurisdiction - its jurisdiction having been limited and circumscribed by section 7 of Act No.13 of 1973.

Then came the 1979 Constitution. This changed the name of the Federal Revenue Court to the Federal High Court: see s.230(2). Although "jurisdiction" in its broadest sense will encompass "legal capacity", "power" or "authority" of a court, in a narrower sense, there is a distinction between jurisdiction strictu sensu and power. Thus as enabled by s.230 of our 1979 Constitution, the Federal High Court retained its jurisdiction "in such matters connected with or pertaining to the revenue of the Government of the Federation . . ." and section 231 gave the Federal High Court, in the exercise of the limited jurisdiction conferred aliunde (that is by the enabling s.230 and not by S.231) "all the powers of the High Court of a State." This means that although the Federal High Court and the High Court of a State have different jurisdictions (one is limited while the other by s.236 is unlimited) they have, acting within their respective jurisdictions, the same judicial powers. Section 231 did not equate the jurisdiction of the Federal High Court with that of the High Court of a State. No, it did not. It did not elevate the Federal High Court to a Court of unlimited jurisdiction.

In this appeal and cross-appeal, it is common ground that a "Chieftaincy matter" is within the jurisdiction of the High Court of a State but outside the jurisdiction of the Federal High Court. The trial Court conceded that much.

The Court of Appeal held that appellant's claims Nos. 1 and 2 are chieftaincy matters and thus outside the jurisdiction of the Federal High Court.

The appellant is appealing against the above decision of the Court of Appeal. His solitary ground of appeal is as follows:-

GROUND OF APPEAL:

(1) The learned Justices of the Court of Appeal misdirected themselves on the law and on the facts when they held as follows:'~The Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the Fundamental Rights guaranteed by Section 33(1) of the Constitution", And this misdirection occasioned miscarriage of justice.

PARTICULARS OF MISDIRECTION

(I) The wordings of Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended are not only unrestrictive, but are also clear and unambiguous.

(II) That being so, Their Lordships were under a duty to consider the full import of its operative clause viz, "In the determination of his Civil Rights and obligations, including any question or determination by or against any Government or Authority", vis-a-vis Respondent's claims 1 and 2 in the Court of first instance before reaching their decision, the subject of this appeal.

(III) If their Lordships had done as aforesaid, having regard to the importance of the points of law involved, and had in so doing had recourse to the supreme (sic) case of Adigun vs. A. G. of Oyo State (1987)1 N.W.L.R. (Pt.53) 678 at 741 (A Chieftaincy case) they would have come to a different decision.

(IV) Similarly had Their Lordships also read section 33(1) aforesaid in its entirety, with sections 42(1) and the definition of the High Court in section 227(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, vis-a-vis appellant's claim aforesaid (i.e. 1 and 2 thereof) they would equally have come to a different decision.

In his sole and solitary ground of appeal above, the complaint of the appellant is the "alleged violation of the Fundamental Rights Guaranteed by section 33(1) of the Constitution." He then argued that this violation imposed a duty on the courts "to consider the full import of the perative clause of that section." Section 33(1) conferring on the appellant a "Right to fair hearing" stipulates: -

S.3-1 In the determination of his civil rights and obligation. . . a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

The right created by the above section will ensure "in the determination of appellant's civil rights or obligation." It is thus a protective secondary right: see A. G. Kaduna State V. Hassan (1985)2 N.W.L.R. (Pt.8) 483 at p. S24. If an appellant's primary rights and/or obligation are transgressed without a fair hearing, then he will apply to the court. There ought to be a primary wrong arising from a breach of a primary right before the party wronged can apply to the court for a relief on the ground that "in the determination of his civil rights and obligations" he was denied a fair hearing.

This Court has dealt with many cases invoking the aid of section 33(1) above. In Olaniyan & ors. V. University of Lagos (1985)2 N.W.L.R. (Pt.9) 599 at p. 629 and Eperokun & ors. V. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162, one of the main issues was the dismissal of the appellants for misconduct without giving them an opportunity to explain and contradict the allegation of misconduct. In Garba & ors. V. University of Maiduguri (1986)1 N.W.L.R. (Part 18) 550, section 33(1), (4) and (13) came into play because the Investigating Panel not being a court of law cannot try the students for misconduct amounting to criminal offences. It was also held therein that calling the students merely as witnesses before the Investigating Panel was far from hearing them fairly. The same principle was applied in Federal Civil Service Commission & ors. v. Laoye(1989) 2 N.W.L.R. (Pt.106) 652 and Professor Olatunbosun v. Nigerian Institute of Social And Economic Research Council (1988) 3 N.W.L.R. (Pt.80) 25. In all these cases, the fundamental rights of the appellants were breached when they were either dismissed from service or expelled from the University for misconduct without hearing them in defence of their conduct.

In the case on appeal, the complaint of the appellant is that he was deposed as an Emir without first hearing him. No one doubts that given those facts he cannot sue for the reliefs he is now claiming. His only hurdle is that his deposition as an Emir is a Chieftaincy Question. And such questions do not pertain to the revenue of the Federal Government or to taxation, Customs and Excise, banking or foreign exchange - being issues over which the Federal High Court was granted civil jurisdiction by section 7 of Act No.13 of 1973. The fons et origo of his complaint in the determination of which he ought to have been accorded a fair hearing is not one over which the Federal High Court has jurisdiction. In this respect, the appellant's right to a fair hearing is merely an accessory right. The principal right is his right not to be unjustly deposed. His right to a fair hearing before that deposition is an accessory right. The maxim here is accessorium sequitur principale - an accesory thing goes with the thing to which it is accessory. Now if the principal right can only be litigated upon and maintained in the State High Court of unlimited jurisdiction, then the accessory right to fair hearing will follow the principal right to its forum competens - the State High Court. The learned trial Judge was wrong in holding:-

I cannot accept that this Court has no jurisdiction on this question of fundamental right because the breach that was alleged was an issue of chieftaincy matter a subject-matter which this Court has no jurisdiction.

The answer here is another maxim -

Accesorium non ducit, sed sequitur suum principale (That which is the accessory or incident does not lead, but follows, its principal.)

The principal complaint is over the deposition of the appellant. His being heard in the process of that deposition is incidental. It is an accessory and protective right which should not lead its principal into the Federal High Court but rather should follow that principal to the State High Court. Did section 42 of the 1979 Constitution increase or enhance the jurisdiction of the Federal High Court?

I have already considered section 42(1) which merely allowed an aggrieved party a right of access to "a High Court in that State" for redress of any contravention or breach of the fundamental provisions of Chapter IV of the 1979 Constitution. Section 42(1) above, in addition to right of access it offered, may be held to have conferred geographical jurisdiction or venue in cases of fundamental rights on a "High Court in that State" which by section 277(1) means "the Federal High Court or the High Court of a State." This Court in Bronik Motors Ltd. (supra) recognised and adverted to section 42(1) when it held that:

Where both the State High Court and the Federal High Court exist in a State, both have concurrent jurisdiction in matters pertaining to Fundamental Rights.

Both are courts that can be approached subject, of course, to the provisions of section 42(2) of the 1979 Constitution dealing with "legal" jurisdiction or competence.

This section stipulates:-

S.42(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 rights to which the person who makes the application may be entitled under this Chapter" (the italics are mine to emphasise the limitation imposed by this sub-section).

The expression "subject to" is often used in statutes to introduce a condition, a proviso, a restriction, a limitation: see Thompson Oke V. Robinson Oke (1974)1 All N.L.R. (Pt. 1) 443 at p.450. There is a marked distinction between jurisdiction conferred generally without words of limitation and one conferred "subject to" a particular contingency. The phrase "subject to" in s.42(2) simply subjects that sub-section to sections 230 and 236 dealing with the jurisdictions granted severally to the Federal High Court and the State High Court: see Bronik Motors Ltd (supra): see also Clark Ltd. V. inland Revenue Commissioners (1973)2 All E.R. 513 at p .520. In Akisatan (Appena of iporo) and ors. V. Akinwande Thomas & ors. (1950)12 W.A.C.A. 90(1950) A.C. 227: Olisa Chukura P. C.J. 433: the Privy Council (coram Lords Greene, Simonds and Morton of Henryton) considered the opening words of section 12 of the Supreme Court Ordinance No.23 of 1943 which enacted that "subject to" such jurisdiction as may for the time being be vested by Ordinance in Native Courts, the Supreme Court shall have the thereinafter defined jurisdiction and held that the expression "subject to" is equivalent to "without prejudice to." Section 42(2) above therefore conferred on "a High Court" special jurisdiction in matters of Fundamental Rights, but it is a jurisdiction conferred "subject to" (- that is to say to be controlled by -) or "without prejudice" to (that is to say not waiving or detracting from) the jurisdictions conferred on the various courts by the 1979 Constitution.

This then means that section 42(2) has not specifically invested the Federal High Court with any extra or additional jurisdiction which "the provisions of this Constitution" to which section 42(2) is subject to, has not given it. Now as section 230(1)(b) of the 1979 Constitution is merely an enabling provision and not a self executing one, it then follows that the jurisdiction of the Federal High Court is still as created and as defined in, section 7 of the Federal High Court Act No.13 of 1973. Since there is no clash between s.42(2) and sections 230 and 236, section 42(2) has not created or granted any additional jurisdiction. But if there is a collision, then the phrase "subject to" shows that the other "provisions of this Constitution" will prevail (see Clark Ltd. V. 1. R. C. (supra) at p. 520.

In his appellant/Respondent's Brief, in Cross-Appeal at p.6 para. 3.10, Mr. Peterside, S.A.N. purportedly quoted the remarks of Obaseki, J.S.C., in Bronik Motors Ltd (supra) at p.351 as follows:-

The 1979 Constitution was not ordained by the National Assembly and the Houses of Assembly of the States but by the people of the Federal Republic of Nigeria. The unlimited jurisdiction expressly conferred upon the State High Court (and of course on the Federal High Court by Section 231(1) of the 1971 Constitution) in the exercise of their sovereign powers cannot therefore be limited other than as provided by the Constitution.

A check on the Report of Bronik Motors' case showed that Obaseki, J.S.C. did not include in his remark (and of course on the Federal High Court by Section 231(1) of the 1979 Constitution) Obaseki, J S. C could not have made the above remarks which sought to show that the jurisdiction of the Federal High Court was unlimited when the ratio decidendi in Bronik Motors Ltd. (supra) is that the jurisdiction of the Federal High Court is limited (unless he was writing a dissenting judgment which was not the case). What Obaseki, J.S.C. said on "jurisdiction" is at pp.351/352 para. H as follows:-

As regards the jurisdiction conferred on the Federal High Court by section 230(1)(a) and (b) of the 1979 Constitution, I agree with my learned brother, Nnamani, J.S.C. as regards his construction of the Section and the limits of the jurisdiction conferred by the section.

Also Bronik Motors carefully distinguished between jurisdiction and judicial powers. Section 231 did not confer any jurisdiction on the Federal High Court. It merely enacted that "for the purpose of exercising any jurisdiction" it might possess, it shall have all the powers of the High Court of a State.

The main problem in this appeal is the mis-conception that section 231 read along with s.42(2) gave the Federal High Court unlimited jurisdiction to entertain claims and relief incidentally affecting fundamental rights but emanating even from Chieftaincy issues. The correct and proper view is that acting within the limits of its limited jurisdiction, the Federal High Court can entertain all claims which arise but incidentally and which involve breaches of fundamental rights.

The last point I will like to comment briefly on is the point made in Respondent/cross-appellant's Brief filed on 20/3/89 at p.9 para. 4.7 viz:

It is submitted that if the Court holds that the dispute is mainly but incidentally relates to enforcement of fundamental human rights, then the Federal High Court has no jurisdiction.

There is no doubt that the main Claim before the High Court is for an Order to quash the deposition of the appellant as Emir of Muri and a declaration that the appellant is still Emir of Muri. The Court of Appeal held rightly in my view, that these two claims raise Chieftaincy questions as defined in section 165(1) of the 1963 Constitution No.20 of 1963. The two courts below are agreed that Chieftaincy questions simpliciter are outside the jurisdiction of the Federal High Court. The appellant's claims 3,4,5 and 6, although they touch his fundamental rights, yet they arose out of the deposition of the appellant as the Emir of Muri for if he were not deposed, those claims would not have arisen. It is therefore correct to describe claims 3, 4, 5 and 6 as ancillary claims as they are collateral to, dependent on and auxiliary to claims 1 & 2. A court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claims will inevitably involve a discussion of the main claims.

Both sides seem to be agreed on the fact that the deposition of the appellant which is the main issue in this case is a radical and fundamental issue which must be resolved by the court before it could adjudicate on the ancillary and subsidiary claims 3, 4, 5 and 6 - Nwafia V. Ububa (1966) N.M.L.R. 219. In his appellant/Respondent's Brief In Cross-Appeal at p.7 para. 3.14, Mr. Peterside, S.A.N. submitted:-

..... no High Court can try an issue Qf fundamental right as such. Such a determination can only be tied to a particular subject-matter....

I agree. Here the particular subject-matter, the principal issue is the desposition of the appellant as Emir of Muri which is a Chieftaincy question.

Turning to the Respondent/cross-appellant's Brief at p.11 para. 4.10, it is there submitted:-

..... there is no way the appellant's fundamental rights can be enforced in this case without a determination as to how the rights were infringed with respect to the deposition of the Respondent as the Emir of Muri and the alleged confinement to the Government lodge. At this stage, the court would have to examine the provisions of the Chiefs (Appointment and Deposition) Law Cap.20 Laws of Northern Nigeria relating to deposition of Chiefs and see whether the provisions therein have been complied with. . . . Where and when the Court starts doing this, it will certainly be going beyond the limited jurisdiction of the Federal High Court.

I also agree. Accessorius sequitur naturam sui principalis (3 Inst. 139) - An accessory follows the nature of its principal. By the same token, an accessory claim can only be determined by that court with jurisdiction to decide the principal claim - here the State High Court being a court of unlimited juris-' diction but definitely not the Federal High Court whose jurisdiction is chiefly limited to "the Revenue of the Federal Government".

In the final result and for all the reasons given above and also for the fuller reasons in the lead judgment of my learned brother, Obaseki, J.S.C., I will dismiss the appellant's appeal and allow the Respondent's cross-appeal. I will abide by all the consequential orders including orders as to costs made in the lead judgment.

Judgment delivered

Belgore, J.S.C.:

The learned counsel for the appellant in a well written brief seems however to have amplified the interpretation of S.231(1) of the Constitution which states:

231(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly the Federal High Court shall have all the powers of the High Court of a State.

By his submission, learned Senior Advocate seems to interchange the word 'iurisdiction" for the word ~'power". With greatest respect, the words are not interchangeable. The Federal High Court, a Court of Record is a creature primarily of the Constitution as provided for in s.230(1) thereof and secondarily of its statute, i.e. Federal High Court Act 1973 (No.13 of 1973). Reliance on s.231(1) (supra) should never becloud the clear provisions of the Constitution and Statute of the court. The Federal High Court Act, a subsisting law under 1979 Constitution clearly limits the jurisdiction of that court by providing in s.7 matters in which it has jurisdiction. The powers of the court as distinct from its jurisdiction must be emphasised. The jurisdiction of a court concerns the matters it is lawfully authorised to hear and determine and these matters are clearly spelt out in the enabling statutes. For example, the Federal High Court has jurisdiction to hear and determine causes and matters relating to revenue of the Government of the Federation, connected or pertaining to taxation of companies and other bodies established or carrying on business in Nigeria, matters relating to customs and excise duties, banking, foreign exchange, currency and other fiscal measures, or matters arising from the operating of Companies Act 1968, enactments relating to patent, copyright, designs, trade marks and merchandise marks, and admiralty jurisdiction. It has also jurisdiction to try matters of criminal nature arising directly from its jurisdiction in matters mentioned above.

Whereas s.42(1) and (2) of the Constitution gives jurisdiction to a High Court to hear and determine matters arising from contravention of the provisions of Chapter IV of the Constitution, the Federal High Court ought not to interpret this power as an all embracing umbrella, whose shade covers jurisdiction not otherwise conferred upon it. S.236(1) of the Constitution, it should be remembered, refers to "High Court of a State." The powers of the Federal High Court are those also conferred on State High Courts, but not the jurisdiction. The powers include issuing of writs and processes consequent on its exercise of jurisdiction and no more. Apart from jurisdiction set out in the Constitution and the one contained in the Federal High Court Act 1973, no other jurisdiction is conferred except the one under s.42(2) of the Constitution. The provisions of s.231(1) of the Constitution concern exercise ot jurisdiction legally conferred and the powers of the Court in exercising the jurisdiction. This has been explained in several decisions of this Court. Once the court has no jurisdiction, it logically means it has no powers to exercise the jurisdiction. S.230(1) and (2) of the Constitution came under scrutiny of this Court in Bronik Motors v. Wema Bank Ltd. [1983] 1 S.C.N.L.R. 296; Mandara V. Attorney-General of the Federation [1984] I S.C.N.L.R. 311; African Newspapers V. Federal Republic of Nigeria (1985) 2 N.W.L.R. (Pt.6) 137, 1650 Savannah Bank Ltd. V. Pan Atlantic Shipping & Transport Ltd.(1987)1 N.W.L.R. (Pt.49) 212.227.

There is certainly no jurisdiction conferred on the Federal High Court in respect of matters canvassed before it in this matter now on appeal in this Court. The jurisdiction of the Federal High Court in causes and matters is clear in the Constitution and the Statute of the court so as to preclude a devious route to further jurisdiction by invoking the provisions of s.42(1) and (2) thereof. The matters in respect of which the Federal High Court has jurisdiction to hear and determine could not go beyond the four walls of the enabling sections of the Constitution and the Federal High Court Act; certainly the provisions of s.231 and s.42(2) of the Constitution are not gaps for escape into unlimited jurisdiction as provided for State High Courts in s.236(1) of the Constitution.

It is for the above reasons and fuller reasons in the lead judgment of Obaseki, J.S.C., with which I am in full agreement, that I find no merit in this appeal. I also dismiss the appeal. I also allow the cross appeal for there is no slightest doubt that the substantive issue pursued to the Federal High Court is a chieftaincy matter decorated with claims on breach of fundamental right so as to gain hearing in that court. The Court of Appeal was wrong in dividing the issues into those within the purview of the trial Court's jurisdiction and those outside it. Once the purport of a claim is clear and the court has no jurisdiction to try that issue, the claim under Chapter IV of the Constitution blended into it should be regarded as Trojan horse. I allow the cross appeal and dismiss the main appeal. I award N500.00 as costs in this Court,N200.00 as costs in the Court of Appeal and N200.00 as costs in the Federal High Court.

Judgment delivered

Agbaje, J.S.C.

:I have had the opportunity of reading in draft the lead judgment of my learned brother, Obaseki, J.S.C. I agree entirely with his reasoning and conclusions.

Section 230 of the Constitution of the Federal Republic of Nigeria 1979 provides for the jurisdiction of the Federal High Court as follows:

230.(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction -

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

(2) Notwithstanding sub-section (1) of this section where by law any court established before the date when this section comes into force be restyled "Federal High Court", and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.

Section 7 of the Federal Revenue Court Act (1973) provides as follows:-

7 (1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters -

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to -

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation, Customs and Excise duties.

(ii) Cuotsum and Exercis duties.

(iii) banking, foreign exchange, currency or fiscal measures:

(i) the operation of the Companies Decree 1968 or any other enactment regulating the operation of companies incorporated under the Companies Decree 1968,

(ii) any enactment relating to copy-right, patents, designs, trade marks and merchandise marks:

(d) of Admiralty jurisdiction.

A long line of decisions of this court has established it that by virtue of section 230 of the 1979 Constitution the Federal High Court has a limited jurisdiction. It has by virtue of section 230(2) of 1979 Constitution the jurisdiction conferred on it expressly by existing laws which are deemed to be Acts of the National Assembly under section 274(1)(a) of the 1979 Constitution. These cases also decided that the Federal High Court has also the jurisdiction conferred on it by specific sections of the 1979 Constitution as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230(1) of the 1979 Constitution. See for instance Bronik Motors Ltd. v. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296.

An existing law conferring jurisdiction on the Federal High Court is the Federal Revenue Court Act 1973 section 7 thereof which I have reproduced above.

A significant provision of the 1979 Constitution touching the jurisdiction of Federal High Court is section 42(1) & (2) of the 1979 Constitution which says:

42 (1) 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.

(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 rights to which the person who makes the application may be entitled under this Chapter.

The point that arises essentially for determination in this appeal is whether or not whenever an aggrieved person alleges that his fundamental human right has been, is being or likely to be contravened in any state and applies to a Federal High Court for redress in respect thereof the jurisdiction of the Federal High Court to take such an action is unlimited having regard to the provisions of section 42 of the 1979 Constitution.

The learned Judge, Belgore, J. (as he then was) on the point at issue said as follows:-

The jurisdiction of the court is laid down in section 7 of the Act that established it and whatever controversy might have ranged on the section it is in my view beyond equivocation that chieftaincy matter is not within its jurisdiction. But that cannot be taken as the end of the matter in view of s.42(1) of the Constitution of the Federal Republic of Nigeria 1979. The sub-section 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.

Before one goes further one must remember that s.277 of the same Constitution defines "High Court" to mean the Federal High Court or the High Court of a State.

A combination of s.42(1) and definition in s.277 means in my understanding that Federal High Court has jurisdiction on any subject-matter involving allegation of breach or threat of breach of fundamental rights. These rights embrace right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to private and family life, right of peaceful assembly and association, right to freedom of movement and right to freedom from discrimination. In my opinion the provision of s.42(1) of the Constitution has expanded the jurisdiction of the Federal High Court to any subject-matter provided the litigation is in respect of breach or threat of breach of fundamental rights. It does not matter whether the decision arising from the issue of breach of the rights decides the issue finally or only touches on Modus Operandi.

The Court of Appeal Jos division did not agree with the interpretation the trial court put on section 42(1) of the 1979 Constitution. The Court of Appeal as per the lead judgment of Adjo, J.C.A. said in this regard as follows:

The jurisdiction conferred upon the Federal High Court by section 42(1) of the Constitution is in relation to the enforcement of the fundamental rights provisions in the Constitution and where other issues, on which the court has no jurisdiction, are involved in such cases, the court can only, in exercise of its jurisdiction under the provisions of the section, try such cases if it can effectively enforce the fundamental rights provisions without entering into any question relating to the determination of the issues on which it has no jurisdiction.

The Court of Appeal Jos Division spelt out in its judgment the jurisdiction of the Federal High Court outside that of redress for breach of fundamental human rights as I have done in this judgment.

It appears that both the trial court and the lower court, the Court of Appeal, were at one that section 42(1) of the 1979 Constitution confers jurisdiction -unlimited according to the trial court and limited according to the Court of Appeal - on the Federal High Court to entertain an action seeking redress for breach of fundamental human right.

It therefore behoves me to examine the provisions of section 42(1) of the 1979 Constitution and find out whether to my way of thinking, upon a true and proper construction of the said provisions the trial court or the lower court or neither of them was correct in its construction of the provisions. For ease of reference, I reproduce below s.42(1) of the 1979 Constitution:-

It appears to me that section 42(1) of the 1979 Constitution is a permissive section only, giving any person who alleges that any of the provisions relating to Fundamental Rights contained in Chapter IV of the 1979 Constitution has been, is being or likely to be contravened in any State in relation to him the right to resort to a High Court in that State for redress. Section 277(1) of the same Constitution says:

High Court means the Federal High Court or the High Court of a State.

So, section 42(1) gives the aggrieved party the right to resort to the Federal High Court or the State High Court in the State in question for redress. Section 42(1) says nothing about the jurisdiction of the Federal High Court or the State High Court concerned to hear and determine the action or application brought by the aggrieved person. This being so, it appears to me that section 42(l) of the 1979 Constitution does not by itself confer jurisdiction on the Federal High Court or the State High Court to hear and determine any act ion or application relating to the enforcement of Fundamental Rights. Section 42(1) of the 1979 Constitution therefore so far as the person aggrieved is concerned is permissive only.

The case of in re Royal Liver Friendly Society (1887)35 Ch. D 332 illustrates the construction I have just put on section 42(1) of the 1979 Constitution. Chitty J. in the case had to construe the provisions in the Friendly Societies Act (U.K.) 1879 Sections 22(d) and 30(10) thereof, which provide for the reference of all disputes between a friendly society and its members to the County Court.

The said section 22(d) provides:-

"that every dispute between a member and the society or an officer thereof,

"shall be decided in manner directed by the rules of the society, and the decision so made shall be binding and conclusive on all parties without appeal and shall not be removable into any court of law or restrainable by injunction; and applicable for the enforcement thereof may be made to the County Court.

The relevant rule of the particular society in the case read:-

Where the rules contain no direction as to disputes, or where no decision is made on a dispute within forty days after application to the society for a reference under its rules the member or person aggrieved may apply either to the County Court, or to a Court of summary jurisdiction which may hear and determine the matter in dispute

Construing section 22 and the rule of the Society in question Chitty, J. said:

That sub-section therefore. so far as the person aggrieved is concerned, is permissive only. and. so far as the County Court and the Court of Summary jurisdiction are concerned. confers jurisdiction on them.

Section 30(10) of the English Act said:-

In all disputes between a society and any member or person insured, or any person claiming through a member or person insured. or under the rules, such member or person may notwithstanding any provisions of the rules of such society to the contrary. apply to the County Court or to the Court of Summary jurisdiction for the place where such member or other person resides, and such Court may settle such dispute in a manner herein provided.

Construing this statutory provision Chitty, J. said:

That again is a permissive section, giving the member the right to resort to the County Court or to the Court of Summary jurisdiction, but again not conferring exclusive jurisdiction on those Courts. The effect of the section is that if there should be found in the rules a provision ousting the jurisdiction of the County Court, or of the Court of Summary jurisdiction, that provision is not to take effect against the statutory enactment. The statutory enactment, therefore, overrides any rule which provides that the member may not go to the County Court or may not go to the Court of Summary jurisdiction.

Unlike the statutory provisions construed in re Royal Liver Friendly Society case (supra), s.42(1) of the 1979 Constitution does not contain, as I have shown above, any provision at all to the effect that a High Court of a State as defined in s.277(1) of the 1979 Constitution may hear and determine the application that any person aggrieved may make to the High Court. The conclusion I reach therefore is that both the trial Court and the lower court, the Court of Appeal, were in error to have traced the jurisdiction of the Federal High Court to entertain the case now on appeal before us relating to enforcement of Fundamental Rights to s.42(1) of the 1979 Constitution. section 42(1) of the 1979 Constitution says nothing about the jurisdiction of the Federal High Court to entertain the case in hand. So it has nothing to do with the jurisdiction of that court.

In fact in section 42(2) of the 1979 Constitution which has to do with the original jurisdiction of the Federal High Court or the State High Court to hear and determine an application made to it under section 42(1) of the 1979 Constitution. Again for ease of reference I reproduce section 42(2) of the same Constitution:-

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 rights to which the person who makes the application may be entitled under this Chapter.

True that section gives the Federal High Court original jurisdiction to hear and determine any application made to it under section 42(1) of the 1979 Constitution. But that jurisdiction is expressly made subject to the provisions of the 1979 Constitution. The expression "subject to the provisions of this Constitution" in section 42(2) of the 1979 Constitution is the very antithesis of the expression "notwithstanding any provisions of the rules of such society to the contrary" in the statutory provisions construed in re Royal Liver Friendly Society (supra). The effect therefore of the expression in question in section 42(2) of the 1979 Constitution is that if there should be found in the 1979 Constitution any provision ousting the jurisdiction of the Federal High Court in the matter in respect of which the application for the enforcement of fundamental rights relates that provision is to take effect against the provisions in section 42(2) of the 1979 Constitution conferring jurisdiction on the Federal High Court in the matter.

I have shown earlier on in this judgment that the Federal High Court is a court of limited jurisdiction, the jurisdiction being limited by reference to the subject-matters, which I have also enumerated.

The reliefs sought by the applicant in his application to the Federal High Court relating to the allegation of the violation of his fundamental rights were as follows:-

(1) An order or orders quashing THE DEPOSITION (OF THE EMIR OF MURI, ALHAJI UMARU ABBA TUKUR) ORDER 1986 dated the ~2th 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 inino and not applicable to the Applicant, since it cannot be said that the Applicant is 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 photographs 1(i) to (iii) supra, that the applicant is still the Emir of Muri, 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.

(5) For a perpetual injunction restraining Colonel Yohana Madaki, Military Governor of Gongola State, his servant, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant, as guaranteed by Chapter IV of the said Constitution except in a manner prescribed by law, and

(6) For aggravated and exemplary damages against the Military Governor for wrongfully infringing applicant's fundamental rights as aforesaid and for such other order or orders as the court may seem just."

It is crystal clear on the material before us in this case that the complaint of the applicant about violation of his fundamental rights arose in the course of a chieftaincy dispute which culminated in the deposition of the applicant as the Emir of Muri by the Deposition (of the Emir of Muri Alhaji Umar Abba Tukur) Order 1986 dated 12th day of August, 1986 made by Col. Y. A. Madaki, Military Governor of Gongola State. Chieftaincy disputes are outside the jurisdiction of the Federal High Court by reason of section 230 of the 1979 Constitution to which I have referred earlier on in this judgment. The two courts below realised this.

The question now is this: Will the fact that the applicant in this case has alleged that his fundamental rights have been violated at one stage or another in the course of the chieftaincy dispute give the Federal High Court jurisdiction to give redress for the said violation of human rights in the course of the chieftaincy dispute? It seems to me that if the applicant can open and close his case with only a peripheral reference to the chieftaincy dispute, a matter outside the jurisdiction of the Federal High Court, then the latter will have jurisdiction in the case. But as it is in the case in hand the allegations of violations of fundamental rights are not quite apart from the chieftaincy dispute. In fact the said violations of fundamental rights spring from the chieftaincy dispute. They are inextricably interwoven with the chieftaincy dispute. So in my judgment there is no way the applicant, and for that matter the Federal High Court, can deal with the application for the enforcement of human rights in isolation of the chieftaincy dispute. In other words the Federal High Court cannot grant any of the reliefs sought in the applicant's application without concerning itself with the chieftaincy dispute, not as a peripheral issue but as a central one, for right at the centre of the application for redress for the violations of fundamental human rights in the case in hand stands that chieftaincy dispute.

For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Obaseki, J.S.C. I too will dismiss the appeal and allow the cross-appeal. I abide by all the consequential orders made in the lead judgment including that as to costs.

Judgment delivered

Nnaemeka-Agu, J.S.C.:

This is an appeal by the plaintiff against the judgment of the Court of Appeal, Jos Division, which has held that the Federal High Court had no jurisdiction to hear and determine the claims numbered 1(i), (ii), (iii), and 2 before the court. The Defendants have also

cross-appealed in respect of the Court of Appeal's decision that the Federal High Court had jurisdiction to adjudicate on claims numbered 3, 4,5, and 6 in the said claim.

My learned brother, Obaseki, J.S.C., has set out the facts leading up to the claim before the Federal High Court, the appeal to the Court of Appeal and the further appeal and cross-appeal to this Court. I do not intend to repeat them here.

The appeal and the cross-appeal in this case once more bring into focus the vexed question of the jurisdiction of the Federal High Court vis-a-vis State High Courts. Since the creation of the Federal Revenue Court, now the Federal High Court by Decree No. 13 of 1973 and in particular since the inception of the Constitution of Federal Republic of Nigeria, 1979, the nature and extent of the jurisdiction of that court and the actual boundaries between the competing jurisdictions of that court and the High Courts of States became a thorny issue. The (Federal) Court of Appeal contradicted itself in two parallel sets of decisions. On the one side was the decision of that court in the Minister of internal Affairs V. Shugaba (1982)3 N.C.L.R. 915 which saw the State and Federal High Courts as vested each with concurrent jurisdiction in such matters. But on the other hand, were such decisions as Federal Republic of Nigeria V. Onyebuchi Eze (1982) 3 NCLR and The Senate of the National Assembly V. Tony Momoh (1983) 4 NCLR. 269 which conceived State and Federal High Courts as having jurisdictions over State and Federal causes and matters respectively. Even the decisions of this Court on the matter were for some time not free from difficulties from the split decision in Jamal Steel Structures Ltd. V. African Continental Bank Ltd. (1973)1 All NLR. (Part II) 208; through its decision in American International Insurance Co. V. Ceekay Traders Ltd. (1981)5 S.C. 81; to the landmark decision in Bronik Motors Ltd. V. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296.

Fortunately, the decision in Bronik Motors Case (supra) settled the matter for good. In the lead judgment of Nnamani, J.S.C., to which all the other Justices concurred, it was decided:-

(i) That the true meaning of section 230 of the Constitution is that the Federal High Court is a court of limited jurisdiction in the sense that it has only so much of the jurisdiction expressly conferred upon it by existing laws but that it may acquire such other jurisdiction as may be conferred on it in the future by the National assembly; and

(ii) That by reason of section 236 of the Constitution a High Court of a State is vested with unlimited jurisdiction to hear and determine any civil proceedings in that State in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue; also to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of any offence committed by any person.

It is the actual application of these principles to the jurisdiction conferred by section 42 of the Constitution to both courts in respect of fundamental rights that is a real issue in this appeal and the cross-appeal. The learned counsel for the cross-appellant admirably encapsulated the issue for determination in the appeal and the cross-appeal, thus:-

Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the Appellant in that court "i.e. in the Federal High Court.

The answer to the question turns on the interpretation of section 42(1) and (2) of the Constitution. These sub-sections provide as follows:-

(1) Subject to the provisions of this Constitution, as amended, modified or otherwise affected by the Constitution (Suspension and Modification) Decree 1984 or any other decree, 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."

(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 make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing of securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.

As sub-section (1) says, it enables any person who alleges that any fundamental right in Chapter IV of the Constitution has been or is about to be violated to go to a High Court in the particular State to deal with cases of contravention or threatened violation of fundamental rights-in the State. "High Court" in this context is defined in section 277 of the Constitution as "the Federal High Court or the High Court of a State." If the section had stopped there, there could have been no question as to the fact that either court could have been restored to at the option of an applicant for relief under that section.

But then sub-section (2) comes in for consideration. That sub-section begins with the expression "subject to the provisions of this Constitution, What does this expression mean? Has it any effect on the construction of the section?

Now, the learned counsel for the appellant, Mr. Peterside, has submitted that on a proper view of section 33(1) of the Constitution, once a violation of the provisions of that section is in issue in a case, the person affected can go to either court for redress. Section 231, he submitted, intends and enables the Federal High Court to exercise all the powers of the High Court of a State. On the other hand, the learned counsel for the Respondent/cross appellant, Mr. Oyetibo, has submitted that the choice of the proper court under the section is intended by the expression "subject to the provisions of this Constitution" to be influenced and governed by the other relevant provisions of the Constitution with respect to the respective jurisdictions of the two sets of courts. It follows that the choice as to which court to go to must be dictated by the nature of the subject-matter. If it is a matter jurisdictionally cognizable by the High Court of a State an applicant for relief must go to a State High Court; but where it is a matter within the jurisdiction of the Federal High Court, such a person may approach the Federal High Court in the State, he submitted.

Now it is of the first principle of interpretation that the maker of any law, be it constitutional or otherwise, does not use any words in vain. Nor does he indulge in tautology or in surplusage in the use of words: See Halsbury's Laws of England (3rd Edn.) Vol.36 para. 583 See also Hill V. William Hill (Park Lane) Limited (1949) A.C. 530, at p. 545-6

As it is so, I cannot treat the opening expression "subject to the provisions of this Constitution ..........." as a surplusage. I must construe and apply it.

What then are the meaning and implication of the expression "Subject to the provisions of this Constitution ----" in section 42 of the 1979 Constitution?

Before I can properly answer this question, I should consider what principles should guide me in the interpretation. I must remember that this Court has said several times that the provisions of the Constitution ought to be read and interpreted as a whole in that related sections must be construed together. See Bronik Motors Case (supra). See similarly the Case of Lincoln College (1593) 3 Co. Rep. 58b, at p. 59b; also Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735. In addition to this, section 42 itself further underscores the need that it be constructed together with other sections of the Constitution by expressly stating that it shall be interpreted and applied "subject to other provisions of this Constitution."

Above all, as Nnamani, J.S.C., observed in Bronik Motors Case, at page 313, one cannot really arrive at a correct interpretation of section 42 of the Constitution and section 7 of the Federal High Court Act without constantly bearing in mind the object for which the Federal Revenue Court was initially set up. And in interpretation, too, one cannot proceed in a manner that pretends to show that one is oblivious of the history of a constitutional or a statutory provision or of decisions antecedent to the instant case in order to ensure that one does not do violence to the development of the law. Rather, that a constitutional or statutory provision should be interpreted from its historical setting has the support of high authorities. See, for examples: River Wear Commissioners v. Adamson (1877) 2 App. 743, per Lord Blackburn; also Eastman Photographic Materials Co. Ltd. v. Comptroller-General of Patents (1898) A.C. 571 per the Earl of Halsbury, L.C.

Finally, I must approach the matter from the viewpoint that since the decision of this court in Nafiu Rabiu V. The State (1981) 2 N.C.L.R. 293, this Court has opted for the principle of construction often expressed in the Latin maxim: Ut res magis valeat quam pereat. This means that even if alternative constructions are equally open, I shall opt for that alternative which is to be consistent with the smooth working of the system which the Constitution read as a whole has set out to regulate, and so the alternative which will disrupt the smooth development of the system is to be rejected. See Shannon Realities Ltd. v. Ville De St. Michel (1924) A.C. 185, per Lord Shaw at pp.192 and 193.1 shall apply these principles in the interpretation of section 42 of the Constitution.

Now, first let me go back to the expression ~subject to the provisions of this Constitution". As I observed in Obikoya & Sons Ltd. V. The Governor of Lagos State & Anor. (1987)1 N.W.L.R. (Pt.50) 385, at p.408 whenever the expression is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or sub-section is "subject to" shall govern, control, and prevail over what follows in that section or sub-section of the enactment. See also C. & J. Clark Limited V. Inland Revenue Commissioners (1973) 2 All E.R. 513, at p.520. Also Aqua Ltd. v. Ondo Sports Council (1988) 10-11 S.C.N.J. 26, p.57; (1988)4N.W.L.R. (Pt.91)622. It implies that the exercise of jurisdictions conferred by section 42 of the Constitution upon the Federal High Court and the High Courts of States shall be subject to other provisions of the same Constitution conferring upon and regulating the exercise of jurisdiction by these two sets of courts. In other words, section 42 shall be construed and applied by reference to the provisions in such sections as 230, 236 and 237. Conversely, section 42 is not designed to confer equal, competing and open-ended jurisdictions upon the two courts, leaving the question of choice to the election of the intending applicant. It follows the crucial determinants for the exercise of jurisdiction by the two sets of courts in the matter are the limited and unlimited jurisdictions of the Federal and State High Courts respectively as I have pointed out above. In short, the jurisdiction of the Federal High Court over issues of fair hearing or any other fundamental right which falls to be enforced is limited to causes or matters cognizable by that court under sections 230 and 237 of the Constitution and section 7(1) and (2) of the Federal High Court Act (No.13) of 1973 and any other Federal enactment which expressly confers jurisdiction on that court. Any causes or matters outside the purview of these must be heard and determined by the High Court of the State where the violation is alleged to have taken, or is taking place. It follows therefore, that reading and interpreting the Constitution as a whole and in accordance with the development of case law so far on the relative jurisdictions of the two sets of courts, this is the only interpretation I can arrive at. There is, therefore, no room for any choice of any other alternative.

The argument of the learned counsel for the appellant that section 231 of the Constitution was designed to bring the Federal High Court on equal level with State High Courts in the matter of jurisdiction must be rejected as a misconception. For, section 231 deals with exercise of judicial power with respect to jurisdiction duly conferred upon the court and has nothing to do with conferment of jurisdiction. Exercise of judicial power by a court is circumscribed by, and dependent upon, the court having jurisdiction in the cause or matter: it cannot extend the perimeter of the jurisdiction as conferred by the Constitution and/or by statute.

It is from the above principles that I shall now examine the claim before the court in this case, which have been set out in full in the lead judgment of my learned brother, Obaseki, J S.C.

My learned brother, has shown from the claims and affidavits before the courts below that all the claims before the court, whether for deprivation of the right to fair hearing under section 33(1) of the Constitution (which formed the subject-matter of claim No.1(i), or of unconstitutional deprivation of personal liberty under section 32(1) (which forms the subject of claim number (3)), or of derogation from the right to freedom of movement under section 38(1) (which forms the subject of claim number (4)) that all have their origin and substance from the deposition of the applicant as the Emir of Muri. The deposition itself was a subject of direct claims in claims numbered 1 (ii) and (2). Claims (5) and (6) are only consequential reliefs of injunction and damages. It is from the background of the factual bases of these claims that I must now consider whether or not the Federal High Court has jurisdiction to adjudicate

on any of the claims. Honourable Judge M. B. Belgore, J. (as he then was) held that that court had jurisdiction to adjudicate thereon. The Court of Appeal Jos Division, coram: Maidama, Jacks, Adio, JJ.C.A. held that the court jurisdiction to adjudicate on claims numbered (3) to (6) which, according to them, were purely fundamental rights claims. But, they held, claims numbered 1(i), (ii) and 2 which raise chieftaincy questions were outside the limited jurisdiction of the Federal High Court.

The short question in the appeal is which, if any, of the two courts was right. Learned counsel for the appellant, Mr. Peterside, contends that the true intendment of these fundamental rights provisions is that a person whose fundamental right has been infringed, or threatened with infringement, can go to any of the two sets of courts in the State for redress. Section 42(1) of the Constitution is his authority for so holding. The right to fair hearing as well as other rights in Chapter IV of the Constitution can be enforced in either set of courts, he submitted. Implicit in this submission is, of course, the fact that it is left for an applicant for such a right to choose to which court he may resort for redress. The learned counsel for the Respondent/cross-appellant, Mr. Oyetibo, insisted that effect must be given in the choice of courts to the opening words in section 42(2) of the Constitution, to wit: "subject to the provisions of this Constitution." If this is done, the subject matter of the suit will determine the court which must be resorted to for redress, he submitted. So, the Federal High Court will have no jurisdiction to adjudicate on any of the claims before the court.

In my respectful opinion, Mr. Oyetibo is right. To give section 42 of the Constitution the interpretation which the learned counsel for the appellant is urging on us is to completely ignore the opening words of sub-section (2), to wit: "subject to the provisions of this Constitution." Those words can, as I have shown, only mean that in the interpretation and application of the jurisdiction conferred by that section, due regard must be had to other provisions of the Constitution which confer jurisdiction upon the Federal High Court. In particular, regard must be had to section 230 of the Constitution which must be read together with section 7 of the Federal High Court Act, No. 13 of 1973, as I have shown. In this respect, section 42(1) is merely permissive; but section 42(2) interpreted from the background of other jurisdictional provisions of the Constitution with respect to that court, is the proper determinant for the exercise of the jurisdiction of the court is such matters. In addition, it must, I believe be construed with reference to the cause of action in the particular ease. By the expression "cause of action" is meant the factual base or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See on this: Ibrahim V. Osim (1988) 3 N.W.L.R. (Pt.82) 257, Thomas V. Olufosoye (1986) 1 N.W.L.R. (Pt. 18) 669. p.682. In short, if there is a complaint of, say, want of fair hearing, the applicant must look at the subject-matter of where the hearing had been denied to decide in which court jurisdiction lies.

In the instant case, it has been shown that the chieftaincy question between the appellant and the Respondent/cross-appellant is the fons etorigo of all the reliefs claimed. Such matters relating to chieftaincy are clearly not cognizable under the limited jurisdiction of the Federal High Court as has been interpreted in several cases, some of which have been referred to above. I must, therefore, hold that that court had no jurisdiction to adjudicate on any of the claims before the court.

There is one point which was not raised before us but upon which I wish to make an observation, even though I do not wish to base my judgment on it. I have noticed that the Federal High Court sat in Kano to adjudicate on the matter, though it relates to a chieftaincy question in Gongola State. Indeed the Government of Gongola State is a party to the suit. Assuming that it was a matter on which the Federal High Court has jurisdiction (but I have held it had not), could the action have been properly adjudicated upon in a Federal High Court sitting in Kano State? Adverting to this question, I must observe that it is to "a High Court in that State" that the power to hear such causes or matters relating to breach or threatened breach of fundamental rights in the States has been given. By definition, a "High Court" is the Federal High Court or the High Court of a State" (section 277 of the 1979 Constitution). Is the clear intendment of section 42(1) not that such a court, in appropriate cases -depending upon the provisions of the Constitution in relation to the jurisdictions of the two courts must have to exercise that judicial power in the particular State where the cause of action arises? Or, is it enough in this case that the territorial jurisdiction of the Federal High Court, Kano Division, also includes Gongola State? Is this issue one which goes to jurisdiction or is it merely a question of appropriate venue? I need not answer these questions in this case.

For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Obaseki, J.S.C. which I adopt as my own, the appeal fails and is dismissed. The cross-appeal succeeds and is allowed. I therefore, strike out all the claims before the court and subscribe to the consequential orders as to costs and otherwise as made in the lead judgment.

Judgment delivered

Karibi-Whyte, J.S.C. (Dissenting):

This appeal raises issues of law of crucial constitutional importance and judicial significance. The first issue is the scope of the exercise of jurisdiction by the High Courts of the country for the enforcement of the provisions of Chapter IV of the Constitution 1979. The second is whether the rights created under Chapter IV of the Constitution confer an independent cause of action, or that they must necessarily be enforced and dependent on the existence of another cause of action.

I have read the lead judgment of my learned brother, Obaseki, J.S.C., in this appeal an am unable to agree with the constitution therein of section 42(2) of the Constitution 1979 with respect to the enforcement of the provisions of Fundamental Rights. I have therefore been unable to agree with the conclusion.

It is important to recognise the fact that the action subject matter of this appeal was originated by way of proceedings brought under the Fundamental Rights Procedure and should be closely as possible be determined by the Rules and law governing the enforcement of the right claimed under the procedure. It is relevant to my consideration of the issues in this judgment to restate the facts which have given rise to the action.

By an order dated the 12th August, 1986, Colonel Y. A. Madaki, Military Governor, Gongola State removed Alhaji Umaru Abba Tukur, Emir of Muri as Emir of Muri. The Emir of Muri was on the date of such removal, a first class Emir and Chairman of the Muri Emirate Council. Alhaji Umaru Abba Tukur was in addition to his removal as Emir of Muri ordered to be removed from his Palace at Muri and detained at Mubi. Sequel to these decisions an application was brought on behalf of Alhaji Umaru Abba Tukur, seeking to quash the Order dated 12th August, 1986, on the following grounds:-

(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 it cannot be said that the applicant is 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(i) to 1(iii) supra, that the applicant is still the Emir of Muri, 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.

(5) For a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other representatives from howsoever interfering with the liberty and rights of the applicant, as guaranteed by Chapter IV of the said Constitution except in a manner prescribed by law and

(6) For aggravated and exemplary damages against the said Military Governor for wrongfully infringing applicant's fundamental rights as aforesaid.

The application was brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 and relied on three complaints. These are the grounds upon which the reliefs were sought. First, the removal of the applicant as the Emir of Muri was a violation of the fundamental rights of the applicant granted to him by section 33(1) of the Constitution 1979 in that no notice of misconduct was alleged against him, nor was he ever given an opportunity of being heard before the order of removal was made;

Secondly. That the condition 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 Laws of Northern Nigeria, 1963 had not been complied with, and the grounds on which the reliefs are sought are as follows:-

(1) That the said deposition Order violates fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, 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;

(2) That the condition 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

(3) That the said order having been purportedly made pursuant to section 1(1)(d) of Decree 17 of 1984 is void ab initio and not applicable to the applicant since it cannot be said that the applicant is 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.

Thirdly, that the purported order of removal under section 1(i)(d) of Decree No. 17 of 1984, was void as the Decree was inapplicable to the applicant's case.

The reliefs sought were contained in the application and the affidavit in support where it was deposed to as follows: -It is obvious that only the first of three grounds on which the application relies comes under Chapter IV. The second and third grounds are not rights enforceable under Chapter IV.

On the 5th September, 1986, the Respondent challenged the jurisdiction of the Federal High Court to hear the application. The learned Judge Belgore, J., in his considered ruling relying on section 42(1) of the Constitution 1979 dismissed the application. He held that "provision of section 42(1) of the Constitution has expanded the jurisdiction of the Federal High Court to any matter provided the litigation is in respect of breach or threat of breach of fundamental rights. It does not matter whether the decision arising from the issue of breach of the rights decides the issue finally or touches on modus operandi ... I cannot accept the learned Director's submission that a determination of the chieftaincy issue is a precondition to the determination of the applicant's fundamental right...."

.......His Lordship continued,

I cannot accept that this court has no jurisdiction on this question of fundamental rights because the breach that was alleged was a chieftaincy matter which this court has no jurisdiction on.

After referring to the second leg of the submission which relief on the ouster of the jurisdiction of the court by Decree No.17 of 1984, and rejecting the submission, he concluded by holding that the court had jurisdiction to hear and determine the issue raised in the application and the motion.

In effect the learned judge held that the court by virtue of section 42(1) of the Constitution 1979 had jurisdiction to enforce the provisions of Chapter IV, and furthermore to restore the violations of the right of the applicant resulting from the breach of the provisions.

The Defendant appealed to the Court of Appeal. On the 21st June, 1988 the Court of Appeal allowed the appeal in part and held as follows:-

... I agree with the learned trial Judge that the Federal High Court has jurisdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim in the manner and to the extent aforesaid. Their determination is possible without embarking on the determination of any question relating to the legal validity of the deposition of the Respondent as the Emir of Muri. The learned trial Judge, however, erred in law, when he held that the Federal High Court had jurisdiction in respect of the claim in paragraphs 1 and 2 of the Respondent's claim.

The Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with other aspects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.

This conclusion was predicated by the following statement.

The Federal High Court has no general civil jurisdiction other than those arising out of matters set out in section 7 of the Federal Revenue Act 1973. There is no legislation which confers civil jurisdiction on the Federal High Court to try, entertain or determine chieftaincy questions and for that reason the court has no jurisdiction conferred upon the Federal High Court by section 42(1) of the Constitution is in relation to the enforcement of the fundamental rights provisions in the Constitution and where other issues on which the court has no jurisdiction are involved in such cases, the court can only in exercise of its jurisdiction under the section try such cases if it can effectively enforce the fundamental rights provisions without entering into any question relating to the determination of the issues on which it has no jurisdiction.

The Court of Appeal, in coming to its final conclusion relied on the decision of the Federal Supreme Court in Odunsi V. Ojora (1961) All N.L.R. 283 and of this court in Nwafia V. Ububa (1966) N.M.L.R. 219 where it was held that where a court cannot effectively in a case before it determine the issue on which it had jurisdiction without exercising jurisdiction in respect of the issues in which it has no jurisdiction, it cannot exercise jurisdiction ab initio to try the case and should not embark on the trial.

Applicant, dissatisfied with the decision appealed to this court; first on a notice of appeal dated 24th June, 1988 and again on another notice of appeal dated 12th September, 1988. At the hearing the notice of appeal dated 24th June, 1988 was abandoned.

The Notice of Appeal before us contained only one ground of appeal which challenged the decision of the Court of Appeal that the Federal High Court has no jurisdiction to entertain, determine or grant the reliefs claimed in paragraphs 1 and 2 of the Respondent's claim either separately or in combination with the other aspects of the Respondent's claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.

The Defendant cross-appealed against the part of the decision of the Court of Appeal where it was held that the Federal High Court had jurisdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of Respondent's claim.

Both Brown-Peterside, S.A.N., for the applicants and appellants in this appeal, and counsel to the Respondent filed their briefs of arguments each formulated a single issue for determination.

I think the formulation of the issue by counsel to the Respondent more succinctly identifies the contention of the parties. It is as follows: -

Whether the Federal High Court has jurisdiction to determine and grant any of the reliefs claimed by the appellant in that court.

I will therefore adopt this formulation for the purposes of my judgment in this appeal.

Arguing the appeal before us, Mr. Brown-Peterside, S.A.N., contended that section 42(1) read with section 277(1) of the Constitution as amended vested in the Federal High Court jurisdiction to hear and determine issues or matters involving fundamental rights. After recognising that the unlimited jurisdiction vested in State High Courts by section 236(1) of the Constitution 1979, but submitted that section 231(1) of the Constitution 1979 also vested. Federal High Courts with the same jurisdiction.

Learned counsel went on to submit that by virtue of section 33(1) of the Constitution 1979, the Federal High Court as well as State High Court, have unlimited jurisdiction in determining the civil rights and obligations of any citizen. Learned counsel went further to contend that the Military Governor was enjoined by section 6 of the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria 1963 to observe the principles of natural justice as provided in section 33(1) when deposing a chief.

On the cross-appeal, learned senior advocate contended that a source of the jurisdiction of the Federal High Court in respect of this application can be found in section 42(1) and (2) and section 231(1) of the Constitution 1979.

The contention of the Respondentlcross-appellant summarily stated is that the Federal High Court has no jurisdiction to entertain Chieftaincy matters, and that Reliefs 1 and 2 of the Respondent's claim raised a chieftaincy question and consequently the Federal High Court has no jurisdiction to entertain those reliefs.

It was also contended that all the claims having arisen from a chieftaincy dispute and inextricably interwoven, the reliefs claimed cannot be enforced by the Federal High Court. The Court of Appeal it was submitted was wrong to hold that the Federal High Court had jurisdiction in the reliefs 3, 4, 5 and 6.

Considerable attention has been paid and rightly too to the scope of the jurisdiction vested both in the Federal High Court and the State High Courts by the Constitution 1979.1 think there is now no doubt that the jurisdiction of the Federal High Court is as provided in section 230 of the Constitution 1979 and of the State High Courts as in section 236(1) on the same Constitution. Whereas the High Courts of States are vested with unlimited jurisdiction to hear and determine any civil proceeding in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue, the jurisdiction of the Federal High Court if limited to the subject matters prescribed in section 7 of the Federal High Court Act, 1973 and section 237(2) of the Constitution 1979. - See Bronik Motors Ltd. v. Wema Bank Ltd. (1983)1 S.C.N.L.R. 296; Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping and Transport Ltd. and anor. (1987)1 N.W.L.R. (Pt.49) 212,227.

These are without doubt the general jurisdiction of both courts as provided under the Constitution 1979.

The submission by Mr. Brown-Peterside that section 231 of the Constitution 1979 which vests in the Federal High Court the powers of the States High Courts also vests in them their jurisdiction is erroneous. Powers are clearly different from jurisdiction. The powers so vested do not also confer jurisdiction.

The Constitution 1979 has gone further specifically to accentuate certain rights regarded as necessary and deserving of being protected primarily in the interest of justice and essentially for the preservation and maintenance of the dignity of homo sapiens. These are the rights collected under Chapter IV of the Constitution and specially protected by the rigidity of the procedure for their amendment, and provision of special procedure for their enforcement. It is this special place accorded by the Constitution to the provision of Chapter IV that makes all the difference between the enforcement of the rights provided therein and other rights to which the applicant or plaintiff may be entitled.

The application before the Federal High Court was brought under Order 1 rule 2(i) of the Fundamental Rights (Enforcement Procedure) Rules 1979. Order 1 rule 2(i) which has adopted the words of section 42(1) of the Constitution 1979 provides, that

Any person who alleges that any of the Fundamental Rights provided for in this Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the court in the State where the infringement occurs, or is likely to occur for redress.....

"Court" has been defined in Order 1 rule 1(2) to mean the Federal High Court or the High Court of a State.

These rules made for the practice and procedure in respect of these rights are made by powers vested in the Chief Justice of Nigeria by section 42(3) of the Constitution 1979. Section 42(1) 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 for redress.

It Is important to appreciate the purport of Chapter IV, namely to protect and enforce the rights provided the citizen therein. This is very clearly brought out by the provisions of section 42(2) which state as follows:-

Subject to the provisions on 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 the State of any rights to which the person who makes the application may be entitled under this Chapter.

It seems to me that this sub-section of section 42 is concerned only with the enforcement of the rights provided under Chapter IV of the Constitution 1979 to which the applicant is entitled and not the enforcement of rights outside Chapter IV.

Thus construed, an application brought under the Fundamental Rights (Enforcement Procedure) Rules can only contain claims for the enforcement of the provisions of Chapter IV. Any claim outside Chapter IV will not be within the purview of Chapter IV, and will accordingly be outside the jurisdiction of the court. This is whether the application is brought before the State High Court with its unlimited jurisdiction or the Federal High Court with its limited jurisdiction. Thus the amplitude of the jurisdiction of the High Courts having been limited to subject matters provided under Chapter IV of the Constitution. This cannot be expanded to include subject matters not within Chapter IV. Hence, for the purpose of the exercise of jurisdiction under Chapter IV, both the Federal High Court and the State High Courts enjoy the same jurisdiction.

It has been contended by the Respondent that since the Federal High Court has no jurisdiction to hear and determine chieftaincy matters, and that Reliefs 1 and 2 raised a chieftaincy question and consequently the Federal High Court has no jurisdiction to entertain those and other reliefs.

This is a very simplistic argument based on Nwafia V. Ububa (Supra) which is founded on a completely different judicial argument. The contention in Nwafia V. Ububa (supra) relied upon and which was accepted by the Supreme Court is that where the determination of an issue is predicated on another issue, the determination of which the court has no jurisdiction, it will have no jurisdiction to determine the former.

The facts of that case are that plaintiff in the court below and appellant before this Supreme Court had claimed that he was entitled in customary law to occupy and possess the house known as Uno Obu and the surrounding premises called Ilo Obu. To determine this claim it was necessary for the court to decide whether the plaintiff was the Okpala of the family. It was common ground between the parties that the customary law is that the eldest surviving male child in the line of descent from the eldest male son was entitled as of right to occupy and possess the property in dispute.

The trial Judge considered the evidence before him and held that Respondent was the first son and accordingly granted the declaration sought. The Defendant appealed.

The Supreme Court held that notwithstanding the nature of the claim on the writ, the only issue which called for determination, whether plaintiff was the Okpala, i.e. the eldest surviving male in the line of Aguba is an issue relating to status in respect of which the court had no jurisdiction. The issue is fundamental (not incidental) which must be resolved before there can be an adjudication on the claim before the court.

The issue in the appeal before us is completely different. Each of the fundamental rights sought to be enforced, although arising from the issue of the deposition of the applicant, as the Emir of Muri, a status governed by the Chiefs Law, confer rights distinct and enforceable proprio vigore. Neither the determination of the violation of section 32(1) the right to personal liberty, not the denial of a hearing which is a violation of Section 33(1) necessarily involves determination whether the applicant is the Emir of Muri at the time of the violation of the rights. They are therefore not dependent on the question whether applicant was removed as an Emir. It is trite law that ubi jus ibi remedium - Bello & anor. V. Attorney-General for Oyo State (1986)5 N.W.L.R. (Pt.45) 828 S.C.

It is important to observe that the question whether the applicant was not heard is not disputed. The deprivation of his liberty was in fact admitted.

Our courts have held in many cases, consistent with the fundamental basis and one of the corner stones and indeed one of the first principles of our administration of justice that no man shall be condemned without being heard. In determining whether applicant was heard, it is irrelevant to go into the merits of the act of the Military Governor removing the applicant and consideration of the question whether it was right or wrong such determination is not in issue.

The only complaint which applicant can make under section 33(1) and has made is that he has not been heard. The violation of the right to be heard is crucial to the validity of any decision made subsequent thereto. Where the violation is established the question whether the decision was right or wrong is not an issue under consideration. The issue is the violation. The remedy lies in setting aside the decision made without a hearing.

It was contended that the jurisdiction conferred to enforce the provisions of Chapter IV is made "subject to the provisions of this Constitution." In other words the exercise of jurisdiction to enforce the provisions of fundamental rights, a special jurisdiction of the courts provided by the Constitution 1979 is made subject to other provisions of the Constitution. The only other provision which comes to mind are the provisions relating to the general jurisdiction of the courts. The argument then goes thus that since the Federal High Court has no jurisdiction to enforce violations of fundamental rights arising from a determination therefrom.

A chieftaincy matter relates to any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a Chief- See Adeyeye V. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432. This is not such a matter. The enforcement of the violations of Chapter IV do not involve determination of such issues.

I have already held in this judgment that rights under Chapter IV are independent rights standing on their own and enforceable by means of procedure for their enforcement. They are not dependent on or subordinate to any other right. They are themselves causes of action enforceable in the courts - ubi jus ibi remedium.

I think the absurdity of the contention is that to be able to enforce any of the provisions of Chapter IV, the applicant must show that the court in which the application has been brought has the jurisdiction to hear and determine the cause of action from which the violation has arisen. Thus, in deprivation of personal liberty the court should have jurisdiction to hear and determine an action for unlawful imprisonment. This is the construction given to the expression in section 42(2) "Subject to the provisions of this Constitution."

Such a construction will defeat the manifest intention of the express provisions of the Constitution vesting the exercise of jurisdiction to enforce fundamental rights in both the Federal High Court and State High Courts. It is a subordination of the special rights of the citizen to his general right.

In such situations it is the duty of the court to construe the provisions ut res magis valeat quam pereat, and for the purpose of preventing the mischief which a contrary construction will produce.

It has always been a very useful and salutary rule of construction often followed, with beneficial result, that where an earlier provision has directed attention to an individual case and has made provision for it unambiguously, the presumption is that a subsequent general provision is not to be taken as meant to negate the earlier special provision. This is expressed in the Latin phrase of Generalia specialibus non derogant.

The special provisions of Chapter IV of the Constitution cannot therefore be displaced by the general provisions relating to jurisdiction of the courts in Chapter VII.

On my construction of the provisions of s.42 of the Constitution, both the Federal High Court of States are vested with jurisdiction to enforce all the provisions of the fundamental rights. In the present case the Federal High Court would have had jurisdiction in respect of the violations of Section 33(1) of the Constitution 1979.

The defeat in the application which was brought under the Fundamental Rights (Enforcement Procedure) Rules is that the Orders 1 and 2 were for the quashing of the deposition of the appellant and a declaration that applicant is still Emir of Muri, sought were not claims which could be made under the provisions of Chapter IV. These claims are not rights guaranteed and provided therein.

There is no doubt the declarations that sections 32(1) in claim 3 and section 38(1) in claim 4 have been violated clearly come within the rights which could be enforced under Chapter IV

It is well settled that the jurisdiction of the court is determined by the claim of the plaintiff- See Western Steel Works v. Iron & Steel Works (1987)1 NW. L. R. (Pt.49) 284. Accordingly, the jurisdiction of the Federal High Court can only be in respect of the violations of Chapter IV of the Constitution 1979.

It cannot be disputed that the determination whether applicant is an Emir is not a relevant consideration in the determination whether the applicant was heard, or detained. There was a violation of his freedom of movement. These are independent rights giving rise to independent causes of action. A cause of action has always been taken to mean every fact or circumstance which enables a plaintiff to have a right of action. There is no doubt each of the facts and circumstances relied upon in claims 3, 4, 5 in this case was sufficient to enable applicant to seek relief in the court. None of them is dependent upon the fact that applicant is the Emir of Muri for its existence.

The Court of Appeal was therefore right in its judgment holding that the Federal High Court had jurisdiction to determine and grant the reliefs claimed in paragraphs 3, 4, 5 and 6 of the Respondent's claim. In the result both the appeal of the appellant and the cross-appeal of the Respondent fail and are hereby dismissed. The judgment of the Court of Appeal is hereby affirmed.

I make no order as to costs.

Counsel

Tayo Oyetibo ........ For the Appellant

With Ndubisi Agetu, E.O. Audu, Director of

Civil Litigations , Gongola State Ministry of Justice

G. Brown-Peterside, S.A.N. ........ For the Respondent

With Chief Agboola Akomolafe and Charles Obishai. Ezekwesiri

Nigeria LII

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