Legal Defence and Assistance Project (LEDAP) GTE & LTD v Federal Ministry of Education & Another (Judgement) (FHC/ABJ/CS/978/15) [2018] NGFCHC 1 (17 April 2018)
Legal Defence and Assistance Project (LEDAP) GTE & LTD v Federal Ministry of Education & Another (Judgement) (FHC/ABJ/CS/978/15) [2018] NGFCHC 1 (17 April 2018)
IN THE FEDERAL HIGH COURT
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA, NIGERIA
ON WEDNESDAY THE 15TH DAY OF MARCH, 2017
BEFORE THE HONOURABLE JUSTICE J.T. TSOHO, JUDGE
SUIT NO.:
FHC/ABJ/CS/978/15
BETWEEN:
LEGAL DEFENCE AND ASSISTANCE
PROJECT (LEDAP) GTE & LTD PLAINTIFF
AND
FEDERAL MINISTRY OF EDUCATION & ANOR DEFENDANT
JUDGMENT
By an Originating Summons dated 27/10/2015 but filed on 03/12/ 2015 the
Plaintiff sought for reliefs and posed questions for determination as follows:
1. A DECLARATION that the constitutional provisions
on the right to free, compulsory and universal primary education up to junior
secondary school for all Nigerian citizens under section 18 (3) (a) of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) is an
enforceable constitutional right by virtue of the Compulsory, Free Universal
Basic Education Act, 2004.
2. A DECLARATION that the Federal and State
Governments are under constitutional obligation to provide financial and
institutional resources for free, compulsory and universal primary education
and junior secondary education for all qualified Nigerians in fulfillment of
their constitutional obligations under section 18 (3) (a) of the 1999
Constitution and section 2 of the Compulsory free Universal Basic Education
Act.
3. A DECLARATION that failure to adopt and
implement free, compulsory and universal primary education and free junior
secondary education is a breach of the constitution by the executive head of
the government that failed to do so.
4. AN ORDER compelling the Federal and State
Governments to forthwith provide financial and institutional resources for
citizens' exercise of their right to free, compulsory and universal primary
education and free junior secondary education in terms of section 11 of
Compulsory, Free, Universal Basic Education Act.
5. AN ORDER directing the 1st Defendant {Federal Minister
of Education) to withdraw forthwith all tuition fee and any other payment by
pupil at primary and junior secondary school in Nigeria in accordance with
Section 2 (1) of the Compulsory, Free, University Basic Education Act, 2004.
The Grounds upon which
the reliefs are sought are stated thus:
1. The provisions of Chapter 2 of the constitution
are not enforceable by virtue of section 6 (6) (b) of the Constitution.
2. However, once a legislation is enacted to give
legal effect to any of the provisions of Chapter 2, the right contained in such
provision become enforceable under section 6 (6) (b) of the Constitution.
3. Having enacted the Compulsory, Free Universal
Basic Education Act, 2004, the National Assembly has given legal effect to
rights to free universal primary education and free junior secondary education
for every Nigerian child contained in section 18 (3) (a} of the Constitution.
4. Section 18 (1) and (3) of the 1999 Constitution
requires all governments in Nigeria to provide equal and adequate educational
opportunities at all levels for all Nigerian citizens. It provides thus:
18. (1) Government shall direct its policy towards
Ensuring that there are equal and adequate educational opportunities at all
levels.
(3) Government shall strive to eradicate
illiteracy; and to this end Government shall as and when practicable provide
(a) free, compulsory and universal primary
education;
(b) free secondary education;
(c) free university education; and
(d) free adult
literacy programme.
5. . By virtue of sections 2 (1) and 3 (1) of
the Compulsory, Free University Basic Education Act, 2004; the right to free
universal primary education and free junior secondary education for every
Nigerian child is guaranteed. They provide thus:
2 (1) Every Government in Nigeria shall
provide free, compulsory and universal basic education for every child of
primary and junior secondary school age.
3 (1) The services provided in public primary and
junior secondary schools shall be free of charge.
6. Although section 18 of the Constitution falls
under the non- justiciable fundamental objectives and directive principles of
state policy, it has however become justiciable or enforceable by the combined
effect of that section and sections 2 and 3 of the Compulsory, Free Universal
Basic Education Act, 2004.
7. The Federal and state governments are therefore, under
constitutional obligation to provide financial and institutional resources for
free, compulsory and universal primary education and free junior secondary
education.
8. Governments have the legal duty and
responsibility under section 13 of the constitution to conform to, observe and
apply the provisions of Chapter two of the constitution. Section 13 of the 1999
constitution provides that:
“ It shall be the
duty and responsibility of all organs of government, and of all authorities and
persons, exercising legislative, executive or judicial powers, to conform to,
observe and apply the provisions of this Chapter of this constitution."
9. The failure to adopt and implement free
compulsory and universal primary education and free junior secondary education
is a breach of the constitutional obligation of the government that failed to
do so being a failure of the duty and responsibility of such head of government
to exercise power to conform to, observe and apply section 18 of the
constitution and sections 2 and 3 of the Compulsory, Free Universal Basic
Education Act, 2004.
10. The Compulsory, Free Universal Basic Education Act,
2004 went further to stipulate how this right to free compulsory and universal
primary education and free junior secondary education should be fulfilled by
governments, by requiring a block grant of universal basic education. Section
11 of the Act provides that:
11. (1). The implementation of the Universal Basic
Education shall be financed from –
(a) Federal government block grant of not less than 2%
from its Consolidated Revenue Fund;
(b) Funds or contributions in form of Federal guaranteed
credits; and
(c) Local and international donor grants.
(2). For any State to qualify for the Federal Government
block grant pursuant to sub section (1) of this section, such State shall
contribute not less than 50% of the total cost of projects as its commitment in
the execution of the project.
(3) The administration and disbursement of funds shall be
through the State Universal Basic Education Board.
11. The Defendants have not complied
with the above provisions. As a result, the Plaintiff and all qualified
Nigerians are not accessing free compulsory and universal primary education and
free junior secondary education.
12. This Honourable Court has the power
to compel the Defendants to comply with the above law, and to require them to
report within a specified fiscal period, measures they have taken to comply
with the said provisions of the law.
13. That Plaintiff, being a duly
registered organization under the laws of Nigeria, with registered mandate to
promote good governance, have the legal right to bring this action to demand
that Federal and state governments adopt and implement the provisions of the
constitution regarding citizens right to free compulsory and universal primary
education and free junior secondary education.
In support of the Summons
is a 16 paragraph affidavit deposed to by Melissa Omene a legal practitioner of
the Plaintiff. Annexed thereto are CTC of the Certificate of Registration and
the Memorandum and Articles of Association of the Plaintiff, marked as Exhibit
A. it is further supported by a Written Address dated 27/10/2015.
This Court on 29/11/2016
granted leave to Learned Council f or the Plaintiff, E.C. Obiagwu Esq. to argue
the Originating Summons. He relied on the affidavit and adopted the Written
Address as their arguments in support of the Originating Summons, while urging
the Court to answer all the questions posed in the affirmative and to grant all
the reliefs sought.
It is on record that this
Court permitted the Plaintiff to proceed in the absence of both Defendants,
being satisfied that they had been served with the Originating Summons on 20/4/
2016 and the service was duly acknowledged. Further to that, an Affidavit of
Service deposed to on 25/11/ 2016 by Amarachi Nwabia, a Legal Practitioner in
the Law Firm of the Plaintiff's Counsel showed that a letter dated 23/11/2016
(attached as ·Exhibit A) was served on each of the Defendants on 24/11/2016
giving them notice of hearing of this suit on 29/11/ 2016. Receipt of the
letter by each of the Defendants is acknowledged with the official stamps of
the Defendants impressed on the Return of Service. Despite all these, the
Defendants neither entered appearance nor filed any response at all. The
Plaintiff's Case is hence not contested.
The Plaintiff proceeded
in accordance with the provisions of Order 8 Rules 1 and 10 of the Federal High
Court (Civil Procedure) Rules, 2009. In general, where the Plaintiff's Claim is
unchallenged and uncontroverted, the Court will accept the available evidence
and act on it. See Aprofim Eng. Const. Ltd v. Sidov Ltd (2006) 13 NWLR (Pt.
996)C.A. 73 at 83, paragraphs A - E. However, it is trite that it is not in all
cases where a defendant does not defend an action that the Plaintiff is
entitled to judgment; as much depends on the peculiarity of the Case. See,
Alhaji B. Abubakar v. Alhaji Daniya Waziri & 3 Ors (2008) 6 - 7 SC (Pt. 11)
82. The Judgment in the instant case will how ever be on its merit, as it
basically turns on interpretation of constitutional and statutory provisions,
as opposed to relying purely on evidence.
It is observed that the
Plaintiff at page 15 of its Written Address specifically stated having
formulated 4 questions for determination but proceeded to outline 5 questions
and ended up arguing 4 questions in Isolated manner. I hold the humble opinion
that all the 4 questions/Issues argued by the Plaintiff essentially revolve
around, question 1, which I’m inclined to focus on, in the hope that its
resolution will cover all the other questions. Question 1 reads thus:
Whether by the combined
effect of Section 18 of the 1999 Constitution and Section 2 (1) of the
compulsory, Free Universal Basic Education Act 2004, the right to compulsory
and universal primary education and free junior secondary education for all
qualified Nigerian Citizens are enforceable rights in Nigeria?
The core submissions
relating to this question are contained in paragraphs 3.4 to 3.6 of the
Plaintiff's Written Address. Put briefly, the Plaintiff submitted that
irrespective of the provisions of Section 6 (6) (c) of the 1999 Constitution,
some provisions of Chapter 2 of the Constitution will become enforceable if the
Constitution provides otherwise in another section. It is further submitted
that where the National Assembly enacts a law on any Section or sections of
Chapter II of the Constitution, such section (s) will become automatically
enforceable. Referred to the Cases of Olafisoye
v. FRN (2004) 4 NWLR (Pt. 864) 580 and A - G, Ondo State v. A - G., Federation (2002) 9
NWLR (Pt. 772) 222, per Uwaifo, J.S.C.
The Plaintiff stated that
the National Assembly In 2004 enacted the Compulsory, Free Universal Basic
Education Act, which guaranteed the right of every Nigeria n child to free,
compulsory and Universal Primary Education and Junior Secondary Education. The
Plaintiff then submitted that in view of the decision of the Supreme Court in A - G Ondo State v. a-g Federation (supra),
Sections 2 (1) and 3 (1) of the Compulsory, Free Universal Basic Education Act,
2004 have created enforceable rights under Section 18 of the 1999
Constitution. It urged this Court to so hold.
I have found very useful,
the decision of the Supreme Court in A
- G, Ondo State v. A - G., Federation (2002) 9 NWLR (Pt. 772) 222 in
the resolution, not just of question I posed by the Plaintiff, but indeed the
entire suit. For that reason, I will quote at length the pronouncements of the
Supreme Court, which are elucidating, Uwaifo, J .S.C. at page 382 ( paragraphs
A - D) stated as follows:
"As to the non-justiciability of the Fundamental
Objectives and Directive Principles of State Policy in Chapter 11of our
Constitution, Section 6 (c) says so (sic). While they remain mere declarations,
they cannot be enforced by legal process but would be seen as a failure of duty
and responsibility of state organs if they acted in clear disregard of them,
the nature of the consequences of which having to depend on the aspect of the
infringement and in some cases the political will of those in power to redress
the situation. But the Directive Principles (or some of them) can be made
justiciable by legislation. This is the ·point Chief Babalola seemed to have
elaborated upon when he said that the Fundamental Objectives and Directive
Principles had lain dormant in our Constitution since 1979 and that the Act was
the first effort to activate just one aspect of them in order that there may be
good and transparent government throughout the Federation of Nigeria.''
Uwaifo, J.S.C. further stated at page 391.
(paragraphs F - H).
"We do not need to seek uncertain ways of giving
effect to the Directive Principles in Chapter II of our Constitution. The
Constitution itself has placed the entire chapter II under the Exclusive
Legislative list. By this, it simply means that all the Directive Principles
need not remain mere or pious declarations. It is for the Executive and the
National Assembly, working together, to give expression to anyone of them
through appropriate enactment as occasion may demand believed this is what has
been done in respect of section (15(5) by the present Act.
.......................... the National Assembly can well legislate if in its
wisdom it considers it necessary .....”
The essence of the
decision of the Supreme Court in A - G., Ondo State v. A - G., Fed. (supra) is
that the Courts cannot enforce any of the provisions of Chapter II of the
Constitution until the National Assembly has enacted specific laws for their
enforcement, as done in respect of section 15 ( 5) of the 1999 Constitution by
the enactment of the Corrupt Practices and Other Related Offences Act, 2000.
That Act was enacted pursuant to the provision of Section 15 (5) of the 1999
Constitution which says:
"The State shall abolish all corrupt practices and
abuse of power.”
In the instant case,
there is no doubt that the National Assembly enacted the Compulsory, Free
Universal Basic Education Act, 2004, based on the provisions of Section 18 (1)
& ( 3) of the CFR N 1999 (as a mended).
Those provisions read as
follows:
"18. (1) Government shall
direct its policy towards ensuring that there are equal and adequate
educational opportunities at all levels.
(3) Government shall strive to eradicate
illiteracy; and to this end Government shall as and when practicable
provide -
(a) Free,
Compulsory and universal primary education;
(b) Free secondary education;
(c) Free University education; and
(d) Free adult literacy
programme."
Having been guided by the
pronouncements of the Supreme Court in the case of A - G., Ondo State v. A -
G., Fed. (supra), I hold that with the enactment by the National Assembly of
the Compulsory, Free Universal Basic Education Act, 2004, the specific provisions
covered by that Act have become justiciable or enforceable by the Courts.
In the light of the
foregoing, Questions a, b, d. and e. posed by the Plaintiff in the Originating
Summons are answered affirmatively. As for Question C, its first segment is answered affirmatively. This
is to the effect that failure to adopt and implement free, compulsory and
Universal Primary education and free junior secondary education is a breach of
constitutional obligation of the government. However, the second segment of
Question C is tinged with political undertone by seeking declaration that the
break of this obligation is an impeachable conduct. This, not being a purely
legal issue, this Court refrains from answering it though necessary inference
can be drawn as circumstances may demand.
Based on the answer to the Questions in the Originating Summons, this Court
hereby grants all the Reliefs (1, 2, 3, 4 and 5) sought by the Plaintiff in
this suit.
J. T. TSOHO
JUDGE
1/3/2017
Parties absent.
E.C. Obiagwu Esq with P.
Egbele (Miss) for the Plaintiff.
Mrs. U.C. lkpe for the 1ST Defendant.
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