Month: February 2021

Overtime, the question as to which court has the jurisdiction to entertain cases involving breach of Fundamental Human Rights has been reoccurring. Its reoccurrence has led to several (mis) interpretations. In course of this article, attention will be paid to the factors that led to these misinterpretations and the correct position of the law. Before that, attention will quickly be given to the definition of Jurisdiction and Fundamental Human Rights.

Jurisdiction is the authority which a court of law has to determine matters or issues which are litigated before it or to take cognizance of issues presented in a formal way for its resolution. See the case of UTIH & ORS. V. ONOYIVWE & ORS. (1991) LPELR-SC.160/1988.

Human rights are those rights which every individual born into the world possesses regardless of race, sex, nationality, ethnicity, language, religion, or any other status simply because he or she is human. Fundamental Human Rights, on the other hand, are the human rights which are recognized, supported, and protected by the state usually in a written constitution. See the case of Ransome-Kuti V. Attorney General Federation (1985) 2 NWLR (PT. 6) 211.

In Nigeria, Fundamental Human Rights are enshrined in Chapter 4, Section 33-46 of the Constitution of the Federal Republic of Nigeria (1999 as amended). Some of these rights are: Right to Life, Right to Dignity of the Human Person, Right to Freedom of Expression, etc. These rights are sacred, sacrosanct, and meant to be enjoyed by all citizens without fear or victimization. However, several situations abound on the breach of these rights.

The salient question is which court has the jurisdiction to entertain the breach of any of these rights. Section 46(1) of the CFRN 1999 as amended states: 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. (Emphasis on IN).

At this juncture, it is pertinent to note that there are two issues to be resolved. First off, people often overlook the preposition IN in that aforementioned section. A High Court in that state could mean the State High Court or the judicial division of the Federal High Court in a state, including the Federal High Court, FCT. In fact, Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rule 1999 defines a court as meaning Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.

In law, once the provisions of a statute or law are clear, they should be given their natural and ordinary meaning. Ergo, both the Federal High Court and State High Courts have the authority to entertain issues bothering on breaches of Fundamental Human Rights. Giving the rationale behind these alternative choices, KEKERE-EKUN, J.S.C in the case under review stated that: ‘The violation of a citizen’s fundamental right is reviewed so seriously that the framers of the Constitution sought to ensure that no fetters are placed in the path of a citizen seeking to enforce his rights. In other words, the provision ensures that he has access to any High Court as long as it is within the State in which the alleged infraction occurred. Indeed it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacle placed in the path of enforcing those rights. There is no ambiguity in the provisions of the Constitution or of the fundamental rights (Enforcement Procedure) Rules… regarding which Court has jurisdiction to entertain an application for the enforcement of fundamental rights.’

In addition, the second issue centers on the breach of Fundamental Human Rights by a Federal Agency. This issue, like fire on a bush during the harmattan season, is further complicated by virtue of Section 251 of the CFRN 1999. Section 251(1)(P) states that: Notwithstanding anything to the contrary contained in 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 and exercise jurisdiction to the exclusion of any other court in civil causes and matters -(p) the administration or the management and control of the Federal Government or any of its agencies.

In essence, what this section is saying is that the Federal High Court has the exclusive jurisdiction to entertain all civil matters that involve a federal agency.

Thus, it appears that the provisions of Section 46(1) and 251(1(P) conflict. These aforementioned provisions raise some questions. For example, if an agent of the EFCC, which is a federal agency, acting in his official capacity, attacks an individual without a just cause, this is clearly a breach of the Fundamental Right. However, which court has the jurisdiction to entertain this matter? Is it the State High Court? Or the Federal High Court since it involved a federal agency?

The position of law has always been that where there is a conflict between a general and specific provision in a statute, the latter will prevail. Tobi JSC(as he then was) in KRAUS THOMPSON ORGANISATION V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR-SC.38/2000 held that: ”It is a well-established canon of statutory interpretation that where an issue in a statute is governed by a general provision and a specific provision, the latter will be invoked in the interpretation of the issue before the court. This is because the specific provision will be deemed to have anticipated the issue as against the general provision.” See also Jack V. University of Agriculture Makurdi 2004 LPELR-SC.262/2000. So, while Section 251(1)(P) is a general provision, Section 46(1) is a specific provision and thus will prevail.

Furthermore, the high court in a state also extends to the National Industrial Court. As such, when a breach of fundamental human rights occurs in the course of employment, the National Industrial Court will have the jurisdiction to entertain the suit.

In conclusion, the position of law is that irrespective of the parties involved, as long as the enforcement of Fundamental Human Rights is the main claim, the State High Court, Federal High Court, the High Court of the Federal Capital Territory including the National Industrial Court in applicable instances have the concurrent jurisdiction to entertain the matter.

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The Doctrine of Last Seen states that the person last seen with a deceased bears full responsibility for his or her death. For example, if Mrs. Katharina Rostova was last seen alive with or in the company of Mr. Raymond Reddington and the next thing that happened was the disappearance of Katharina, the irresistible inference is that she was or had been killed by Reddington.

This doctrine is one of the fundamental principles of the Nigerian Criminal Jurisprudence and it is mostly used in murder and manslaughter cases. By extension, this theory is not restricted to the Nigerian Criminal Jurisprudence alone. It is a principle of universal application. See the Indian case of Rajashkhanna v State of A.P. (2006) 10 SCC 172.

Although the Nigerian statutes and laws do not provide for this doctrine, it has, nevertheless, gained notoriety in the criminal jurisprudence through various judicial pronouncements.

Commenting on this doctrine, the Apex court per Adekeye, J.S.C, (as he then was) in Haruna v. AG of Federation (2012) LPELR-SC.72/2010,(Pp. 30-31, paras. F-B) held that: “The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.

The Doctrine of Last Seen thrives on presumption and like every presumption in law, it is rebuttable. Generally, the trite principle of law is that the burden of proof is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. See Section 135 of the Evidence Act 2011. However, under the Doctrine of Last Seen, this general principle changes, and the burden of proof thus shifts from the prosecution to the accused to adduce credible evidence to show that he or she was not the one who killed the deceased.

In the case of Madu v. State (2012) LPELR-SC.12/2009, the court held: “If it turns out that the person last seen with the deceased is dead, the doctrine, therefore, lays a burden on the accused to give an explanation on how the deceased met his or her death.”

It is pertinent to state that in determining the guilt or otherwise of the accused, attention is heavily placed on the time gap by the Courts. if the time when the accused and the deceased were last seen alive and the deceased is found dead is so infinitesimal that the possibility of any person other than the accused coming in contact with the deceased becomes impossible, the doctrine may likely be applied. However, it would be difficult in some cases to successfully establish that the deceased was last seen with the accused when there is a long gap and existence of the possibility of other persons coming in between.

Furthermore, this doctrine is not meant to be applied in isolation. In addition to it, there must also be overwhelming circumstantial evidence pointing to the guilt of the accused. Circumstantial evidence in criminal law is the proof of circumstances from which according to the ordinary course of human affairs, the existence of some fact may reasonably be presumed.

Owing to this, the principle was not applicable in the 2019 recent case of State v. Sunday (2019) LPELR-SC.709/2013 involving the alleged murder of a father by his son while it was applicable in Anyasodor v. State (2018) LPELR-SC.655/2015 involving the death of a man through his estranged lover. Hence, the applicability depends on the facts of each case and the circumstantial evidence. The rationale behind this is to avert the miscarriage of justice.

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One of the indisputable facts is that Nigeria is a multilingual country. With over Two Hundred and Fifty Languages (250) across the nation, the Giant of Africa conspicuously ticks the first requirement of a multilingual speech community.

Despite the plethora of these languages, the official language of the country is English. The English language is at the apogee stage of importance. It occupies a marquee function due to its constant usage as a medium of expression in Education, Administration, Workplace, Media, Judiciary, etc.

The superior Courts in Nigeria also use English Language as a medium of expression. This principle has received judicial approvals in cases such as Madu v. State (1997) 1 NWLR (pt. 482) pg 403 para B, Ogunye v. The State (1999) LPELR-SC.47/1997, etc.

In Babarinde & Ors. v. The State (2012) LPELR-CA/IL/C.18/2010, the Court held that it is a cold fact that Yoruba vernacular has never been the official language in the Nigerian courts. As such, Africa Magic Yoruba conducting Court proceedings using the Yoruba language is, in law, wrong. ‘Lori iro‘.

However, does that mean that all Courts in Nigeria employ the English Language as a medium of proceeding? No. This principle only applies to the Court of Superior Records. These courts are The Supreme Court, The Court of Appeal, The Federal High Court, Sharia Court of Appeal Abuja, The Federal High Court Abuja, The Customary Court of Appeal Abuja, The State High Court, The Sharia Court of a State, The Customary Court of a State.

Hence, any local language can be used as a medium of expression in Areas and Customary Courts. See Onyia v. The State (2008) LPELR-SC 232/2006 (P.28, Paras F-G).

AN INTERPRETER
It is possible that a party to a proceeding does not understand the English language. The law already envisages this situation and makes a provision for the Right of such a person to an Interpreter. This is enshrined in Section 36(6)(E), Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The Court held in Akeem v. The State (2017) LPELR-SC.589/2014, that The law is trite that where an accused person does not understand the English language which is normally, the language of the Court, it is his responsibility to tell the Court, at the earliest opportunity, that he did not understand the English language which is the language of the Court or ask his lawyer (if any) to inform the Court of that challenge.

EVIDENCE TENDERED IN OTHER LANGUAGES
In Damina v. The State (1995) 9 SCNJ 254, it was held that a court of law is presumed to be an illiterate in any document written in any Nigerian local language as it cannot comprehend its content no matter the dexterity of the Judex in that language.

Ergo, any document sought to be relied upon by a party which otherwise is not written in the English Language must be translated by the party seeking to rely upon it in evidence into the English Language. It is entirely the responsibility of the party that intends to rely on such documents to translate that document from that language to the language of the Court. The Court cannot call for its translation or interpretation suo motu (on its own) as to do that will amount to making a case for the appellant which is not the duty of the court. See the case of Ojengbede v Esan (2001) 18 Part 746 Page 771 at 790 para A-B.

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