THE FACT OF THE CASE BRIEFLY GOES AS FOLLOWS:
The appellant publicly claimed to have discovered a vaccine for HIV and to have cured patients. His claim drew reactions from the 1st and 2nd respondents, who are the Minister of Health and the Medical & Dental Council of Nigeria respectively. Thereafter, the 3rd respondent (Medical & Dental Practitioners Investigating Panel) invited him over alleged professional misconduct. Rather than honouring the invitation, he went to the High Court of the FCT, claiming that the panel was acting as accuser, prosecutor, and judge in its own case, thereby violating his right to fair hearing. The court first granted an interim order but later struck out the motion on jurisdictional grounds.
He furthermore approached the Federal High Court again to enforce his fundamental right being likely to be breached by the panels, arguing that the panels were biased and under the control of the Minister of Health. The court dismissed his case, holding that his complaints and the reliefs he sought were outside the provisions of Chapter IV of the 1999 Constitution (as amended), and were not enforceable under the Fundamental Rights (Enforcement Procedure) Rules. Dissatisfied, he appealed to the Court of Appeal but failed, and then further appealed to the Supreme Court.
DECISION vis-à-vis ANALYSIS OF THE CASE:
The Supreme Court, per ABBA AJI, J.S.C. (delivering the leading judgment), set aside both the judgments of the trial and lower courts for want of jurisdiction, emphasizing the importance of jurisdiction. The Court held that though the issue and the claims therein are fundamental-right related, as the appellant alleged that his right to fair hearing pursuant to section 36(1) was likely to be breached by the panels, HOWEVER an action against a non-judicial body for enforcement of right to fair hearing cannot be filed under the Fundamental Rights Enforcement Procedure, because section 36(1) of the 1999 Constitution (as amended) provides that: ‘In the determination of a person’s civil rights and obligations, including any question or determination by or against any government or authority, the 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 a manner as to secure its independence and impartiality.’
It’s from the foregoing that the supreme court submitted that the section only dealt with the determination of the civil rights and obligations of a person in cases before a COURT or a TRIBUNAL established as such by law. In other words, the section applies only to proceedings before JUDICIAL BODIES established as such by law and does not extend to all BODIES ACTING JUDICIALLY OR QUASI-JUDICIALLY including domestic or standing ad-hoc tribunals or panels raised departmentally or in an organization to investigate, inquire into, or hear complaints within that department or organization.
In the instance case, the suit by the appellant that the proceedings and decisions of the respondents VIOLATE or are LIKELY TO VIOLATE the PRINCIPLES OF NATURAL JUSTICE against him and his general legal right to fair hearing is a proper and recognizable complaint in law, HOWEVER, the RESPONDENTS NOT BEING COURTS OR TRIBUNALS ESTABLISHED BY LAW, their alleged violation or likely violation of the principles of natural justice against him and his general legal right to fair hearing cannot be brought before the High Court by way of an application for enforcement of fundamental rights pursuant to section 46(1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules. But the appellant can seek redress for such violation by the ordinary or general processes for seeking remedy for infractions of legal rights and obligations in the High Court.
My Lords further emphasized that the appropriate thing he ought to have done, or the appropriate method to challenge decisions of non-judicial bodies acting judicially or quasi-judicially, is by an application for judicial review by way of a writ of certiorari, prohibition, declaration, or by any of the ordinary methods of legal actions such as writ of summons, originating summons, or originating motion under the High Court (Civil Procedure) Rules.
In addition, the Supreme Court further addressed the question of what happens where the issue complaint involves a fundamental right and other multiple issues? It was wittingly and precisely held that: where a set of facts or cause of action gives rise to multiple causes of action, including a breach of fundamental rights, the party so affected would have to bring two different actions at the same time. The appropriate procedures must be adopted for each class of action. One of such actions is by writ of summons according to the provisions of the High Court (Civil Procedure) Rules of the relevant State, and the other by the most suitable originating process, as the case requires, under the Fundamental Rights (Enforcement Procedure) Rules.
Lastly, Supreme Court summed it up with the proper order to be given where the main claim in an action for enforcement of fundamental rights does not fall under Chapter IV of the 1999 Constitution that the proper order the court should make is an order striking out the action on the ground that the court lacks jurisdiction to entertain it. Therefore In the instance case, the trial court and, latter, the Court of Appeal ought to have struck out the appellant’s action after noticing the matter doesn’t fall within the scope of Chapter IV warranting it to be brought under fundamental enforcement procedural rules, and that embarking on making findings was an exercise in futility as it has been a settled and aged long position of law re-echoed in plethora of cases that: All law courts or tribunals, while exercising their powers, must be guided by the general determinants of jurisdiction among which are:
(a) the statute establishing the court/tribunal;
(b) the subject matter of litigation;
(c) the litigating parties;
(d) the procedure by which the case is initiated;
(e) proper service of process;
(f) the territory where the cause of action arose or where the defendant resides; and
(g) the composition of the court/tribunal.
Therefore if any of the above is lacking, the jurisdiction of such Court/tribunal is defective and would undoubtedly lead the whole trial to a nullity.
Briefly put:
Where it’s not a Court of Law or a tribunal established by law that breaches or is likely to breach someone’s fundamental rights such as fair hearing, but rather it’s an administrative or organizational body/panel or commission of inquiry, in other words, it’s a non-judicial body acting judicially or quasi-judicially, the best way to challenge that, is by an application for judicial review by writ of certiorari, prohibition, declaration, or by any of the ordinary methods of legal actions such as writ of summon etc. But where the breach is by a Court of Law or tribunal established by law, then it falls within the scope of Chapter IV and can be filed or brought under the Fundamental Rights Enforcement Procedure Rules. Equally, the appropriate order ought to be given right at the trial court, having found that the claim doesn’t fall within the scope and was brought under fundamental rights enforcement procedure rule instead of bringing it by way of judicial review is to strike it out for lack of jurisdiction and doing anything further was an exercise in futility. As such both the trial court and the Court of Appeal decisions are of no effect whatsoever therefore are liable to be set aside.
N:B: In essence, if the classical case of Garba v. Unimaid were to come up today, it might have faced a procedural challenge for being filed under fundamental rights enforcement rather than judicial review.
Funny enough, I did a moot in the just concluded semester on a fact almost similar to Garba v. Unimaid. But I refused to follow the mode adopted by the learned counsel in that case: filing a suit for enforcement of fundamental rights. I went by way of judicial review. I could remember I consulted two of my seniors Abubakar Abdullahi Raji, Senior Advocate of Bayero University Kano (SABUK), and Salihu Haruna, SABUK about it, and they said I should give it a try, so I filed an ex parte motion for leave alongside my main application for judicial review. As if I knew this Supreme Court pronouncement was coming to validate it.
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Isah Bala Garba is a level 300 student from Faculty of Law, Bayero University, Kano. He can be reached for comments or corrections on: LinkedIn: https://www.linkedin.com/in/isah-bala-garba-301983276 Facebook: https://www.facebook.com/isah.bala.garba
isahbalagarba05@gmail.com or on 08100129131