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Lagos State Government & Ors. v. Miss Asiyat Abdul Kareem & Ors. (2022) – SC

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➥ CASE SUMMARY OF:
Lagos State Government & Ors. v. Miss Asiyat Abdul Kareem & Ors. (2022) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC.910/2016

➥ JUDGEMENT DELIVERED ON:
17th day of June 2022

➥ AREA(S) OF LAW
Hijab wearing;
Restriction of pupil to uniform;
Freedom of religion;

➥ NOTABLE DICTA
⦿ FACTS / AVERMENTS PLEADED BUT NOT CONTROVERTED ARE DEEMED ADMITTED
It is a general principle of law that facts pleaded, or averments deposed to in an affidavit, if not specifically challenged or controverted, are deemed admitted and require no further proof, except where the facts are obviously false to the knowledge of the court. There is a plethora of authorities on this, such as, The Honda Place Ltd. Vs Globe Motor Holdings Nig. Ltd. (supra), Ajomale Vs Yaduat (No.2) (supra); Ogunleye Vs Oni (1990) 4 SC 130; CBN Vs Interstella Communications Ltd. (2017) LPELR 43940 (SC) @ 620; Nishizawa Ltd Vs Jthwani (1984) 12 SC 234. – O.K. Kekere-Ekun, JSC. Lagos State Govt. v. Abdul Kareem (2022) – SC.910/2016

⦿ MAKING NYSC FEMALE CORPS COMPLY WITH TROUSER WEARING, DESPITE OBJECTION, IS BREACH OF RIGHTS TO RELIGION
The NYSC has been forcing their female members to dress on trousers contrary to their religious right encapsulated under section 38 of the 1999 Constitution. It must firmly assert here that these female corps members were solely and singularly trained and financed by their parents and brought up in their respective religious beliefs that some have never worn trousers in their lives. To make them comply with the compulsory trouser-wearing of all NYSC corps members is a violation of their rights to freedom of religion. In the same light, to compel school students or undergraduates or pupils to dress in a manner contrary to their religious beliefs is to violate their fundamental rights. This applies even where the institution is private or government owned. – Uwani Musa Abba Aji, JSC.

⦿ NATURE OF FUNDAMENTAL RIGHTS IN THE NIGERIAN CONSTITUTION
Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religion, and association, etc. See Section 38 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). These rights common to mankind have a long history. Fundamental Rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights have been described as the minimum living standard for civilized humanity. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution. – Uwani Musa Abba Aji, JSC.

⦿ DEROGATION FROM THE FUNDAMENTAL RIGHTS OF A CITIZEN MUST BE SHOWN TO BE IN PUBLIC INTEREST
Competent authorities or Government must justify derogation from the fundamental rights of citizens by showing facts suggesting that the act or policy complained of is reasonably justifiable in a democratic society. It must be shown that the derogation is in the interest of public safety, public order, public morality or public health, or that the policy or action is for the purpose of protecting the rights and freedom of other persons as required by section 45 (1) (a) and (b) of the constitution of the Federal Republic of Nigeria 1999 (as amended). – Tijjani Abubakar, JSC.

⦿ A CASE PRECEDENT PROPERLY DISTINGUISHED CANNOT APPLY IN PRESENT CASE
Where the reliance on a precedent case is challenged in a proceedings on the basis that the facts are distinguishable from those of the present case, the court must determine if the facts of the two cases are the same or not. It cannot gloss over that issue and proceed to simply rely on the precedent case on the ground only that the law applied in that case is the same law that is sought to be invoked or applied in the precedent case. A law can be applied in various factual situations. So upon a challenge that the factual situation in which a law was applied in a previous case is different from the factual situation in a present case and therefore cannot apply to it, it becomes necessary to determine the factual basis for the application of that law in the precedent case so as to determine if the precedent case applies to the present case. If the factual basis of the application of the law in the precedent case is different from those in the present case, then the precedent is successfully distinguished from the present case and cannot apply to it on the relevant point. — Emmanuel Akomaye Agim, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Olatokunbo Kekere-ekun, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
Osunsanya Esq., Assistant Chief State Counsel, Ministry of Justice, Lagos State.

⦿ FOR THE RESPONDENT
Hassan T. Fajemite Esq.

➥ CASE HISTORY
At the time the cause of action arose, sometime in January 2012, the 1st and 2nd respondents, were female Muslim students of Atunrashe Junior High School, Surulere, Lagos State, and were both 12 years old. Atunrashe Junior High School is a public school owned by the 1st appellant. On the fateful day, they wore the Islamic headscarf (hijab) over their school uniform and were on their way to school in a commercial bus when they encountered the Vice Principal of the school, who allegedly snatched their hijabs from their heads on the ground that they were not part of the school uniform. Due to the intervention of other passengers in the bus, their hijabs were returned to them. However, upon getting to school, the said Vice Principal called the school assembly and directed the teachers to remove and seize any hijab worn by any female Muslim student whether within or outside the school premises. They were further warned not to wear the hijab on their school uniforms.

Available:  Ikechukwu Okoh v. The State (2014)

It was alleged that the respondents were singled out and reprimanded, humiliated, and embarrassed, by the said Vice Principal. According to the Next Friends of the 1st and respondents, all entreaties to the school to permit their daughters to wear the hijab were rebuffed. The issue was reported to the 3rd respondent, an NGO, which decided to take up the matter with the 1st appellant. Notwithstanding the intervention of the respondent and the Muslim Lawyers Association of Nigeria (MULAN), the appellants were adamant that the wearing of hijab on school uniforms in the State-owned public schools remained prohibited. These are the facts that led to the institution of the Originating Summons at the trial court.

By an Originating Summons filed on 8th March 2013 and brought pursuant to Sections 38, 42 (1) (a) and (b) and 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria (LFN) 2004; Order 11 Rules (1), (2) and (3) of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the inherent jurisdiction of the court, the 1st and 2nd respondents suing through their respective Next Friends along with the 3rd Respondent as applicants sought the following reliefs, inter alia, against the present appellants, as respondents: A Declaration that the continuous denial of the 1st and 2ndd Applicants female members of the 3rd Applicant and other female Muslim students who resolve or are obliged to use or are using Hijab (female Muslim head covering) as shown in Exhibits A and B within or outside the premises of any educational institution in Lagos State at any time is wrongful and unconstitutional as same constitutes a violation of their rights to freedom of thought; conscience and religion/ freedom from discrimination and right to the dignity of the human persons and right to education as guaranteed by Section 38 (1)(a) & (b) and 42(1)(a) & (b) of the Constitution of the Federal Republic of Nigeria (1999) (As amended) and Articles 2, 5; 8, 10, 17 and 19 of the African Charter on Human and Peoples/Right {Ratification and Enforcement) Act Cap. Laws of the Federation/ 2004.

The learned trial judge dismissed Applicants suit stating, inter alia, “as already stated above the prescribed uniform engenders uniformity and allows students focus on the pursue their education together in an atmosphere that is mutually supportive/ devoid of all and any distractions by signs of religious belief and affiliation.”

The respondents were dissatisfied with the decision and appealed to the court below. A full panel of the court unanimously allowed the appeal and set aside the judgment of the trial court. The appellants, not surprisingly, dissatisfied with the judgment and have appealed to this court vide their Notice of Appeal filed.

➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]

1. Whether the court below was right when it held that there was no legislation or regulation etc. before the lower court to enable it place restriction or disability on female Muslim students to wear Hijab on their uniforms having found that the Respondents did not join issue on the existence of the Appellants/policy prescribing the mode of uniform in public primary and secondary schools in Lagos State?

RULING: IN RESPONDENT’S FAVOUR.
A. In paragraph 9, the appellants allude to a State policy that specifically prohibits a breach of the prescribed dress code. I do not think the lower court could be faulted for holding that failure to exhibit such policy requires the court to speculate on its existence and contents. This is particularly so having regard to paragraph 10 of the counter affidavit where the appellants aver that the clamour and demand for compulsory use of the hijab on their school uniforms by female Muslim students is a recent development. The prohibition of its use must also be a recent development for which there ought to be some form of documentation circulated to all schools for their guidance and compliance. The burden of proving or establishing the existence of a State policy prohibiting the wearing of the hijab was on the appellants who asserted that fact. See Section 131 of the Evidence Act, 2011.

Available:  The Governor of Kaduna State v. Lawal Kagoma (1982)

B. Suffice it to say that the wearing of the hijab, described as a mark of modesty for female Muslims who have attained the age of puberty, has not been shown to be an act that infringes on or is likely to infringe on the rights and freedom of other students … The limits of these freedoms as in all cases are where they impinge on the rights of others or where they put the welfare of society or public health in Jeopardy. There are no facts to suggest that in enforcing their right to freedom of religion by wearing the hijab, the 1st and 2nd respondents are seeking any favourable treatment nor wearing of the hijab could lead to chaos or disunity among the students. It is speculative to say the least. To suggest, as done by learned counsel for the 1st & 2nd appellants, that the respondents are free to attend a faith-based school or private school in order to exercise their constitutionally guaranteed right under Section 38 of the Constitution, would itself be discriminatory and in violation of Sections 17(2)(a), 18(1)(a) and 42(1)(a) of the Constitution.

C. The evidence before the court shows that the appellants made concessions, allowing the female students to wear the hijab during certain periods only. I am of the considered view that the concession is a recognition of the Constitutionally guaranteed right of female Muslim students to manifest their religion through the practice and observance of its tenets, one of female Muslims who have reached the age of puberty, are to be modesty covered from their head to their bosom. The purpose of maintaining their modesty is defeated if they can only wear it at certain times. Unless it is shown that they are infringing on the rights of others, there is no justification for curtailing that right.

D. Adopting a liberal interpretation of Section 38 of the 1999 Constitution, as amended, I hold that it amounts to a breach of the 1st and 2nd respondents right to freedom of thought, conscience and religion to forbid the wearing of the hijab, by those who wish to do so, on their school uniform. If it is the desire of the appellants to foster unity and a sense of belonging among all students, it should standardise the hijab for use in schools and incorporate it in the prescribed uniform.
.
.
2. Whether the raising of the new issue of secularity of this Country vis-a-vis section 10 of the 1999 Constitution (as amended) suo motu by the trial court was done wrongly and out of place?

RULING: IN RESPONDENT’S FAVOUR.
A. The court below was therefore right when it held that the raising of the issue of the secularity of this country visa-vis Section 10 of the 1999 Constitution, as amended, by the learned trial Judge suo motu without inviting the parties to address him before predicating his decision on it, amounted to a denial of the respondents’ right to fair hearing and was therefore fatal to the appellants’ case.

➥ MISCELLANEOUS POINTS
***DISSENTING:
**John Inyang Okoro, JSC:
A. My Lords, I had earlier mentioned in this judgment that the thrust of this appeal is whether the Appellants were right to prohibit the use of hijab by female students of Islamic faith in their school. I have scrupulously examined that issue viz a viz the 1st and 2nd Respondents’ contention that such prohibition is a breach of their rights as enshrined in the above sections of the constitution; I am unable to see the correlation between the Appellants maintaining a standard as per school dress code and complaint of denial of fundamental human right. What we are talking about here is called “school uniform” and before a child is admitted into school I believe there would be some form of agreement to abide by or comply with the rules and regulations of the school. Having gone through the evidence as gleanable from the record of appeal, I am unable to find where the Appellants attempted to deny the 1st and 2nd Respondents an opportunity at education or curtail their freedom of practicing their religion.

B. If every student were to cover their [uniform in] school, public primary and secondary school will not augur well “for uniforms with their different religions togas, I wonder what the school compound would be like. Imagine a scenario where students who are traditional religious worshipers turn up at school fully adorned with their traditional worship regalia on top of their school uniforms and students whose faith prescribe wearing of white garments without shoes turn up in that fashion; what would the school environment look like? It would be chaotic to say the least. I take bold to say that the Respondents’ argument that any other group seeking indulgence similar to theirs would have to provide biblical or other scriptural evidence which the government would be required to investigate, is grossly misleading as faith is innate of believe and not wholly codified.
.
.
**Emmanuel Akomaye Agim, JSC:
S.6(2) of the said Child Rights Law makes it obligatory for parents or legal guardians as the case may be to provide guidance and direction to a child in the enjoyment of his her right to freedom of thought, conscience and protection for the best interest of the child. Subsection (3) of same section 6 of the law places a duty on all persons, bodies, institutions and authorities to respect the duty of parents or legal guardians to provide guidance and direction to a child in the enjoyment of his or her said right. In the situation where the parent of a child has handed over the legal guardianship of the child to a school by enrolling him or her in that school for the education of the child, it is the school as legal guardian of the child while in school that must provide guidance and direction to the child in the enjoyment of his her freedom of thought, conscience and religion and all persons including the child’s parents must respect that by virtue of S.6(2) and (3) of the Child Rights Law. Since the pupils and children are in their custody while in their schools, they are their legal guardians during such moments. As such legal guardians they have the power to guide and direct how the children exercise their rights while in school having regard to the primary objective of the school and the best interest of the child and other children in the school. This power derives from two sources. The first is that it is inherent in their power to manage the schools and for the purpose of efficient instruction and training of the pupils and students, and to control their conduct. The second source is S. 6(1), (2) and (3) of the Child Rights Law of Lagos State 2001 which restated the right to freedom of thought, conscience and religion and provides that parents and where applicable, legal guardians [shall guide and direct] the exercise of a child’s right to freedom of thought, conscience and religion having regard to the evolving capacities and best interest of the child. The decision of the authorities to restrict the wearing of hijab in the school to when the pupils or students are in Islamic religious knowledge classes and engaged in Salat and Jumat prayers is in exercise of their powers to control and regulate the conduct and dressing of their pupils or students in school to achieve the primary objective of the school.

Available:  Rafiu Womiloju & 6 Ors. v. Mr. Fatai Ogisanyin Anibire & 4 Ors (2010) - SC

➥ REFERENCED (STATUTE)
Sections 1, 38, 42, Nigerian Constitution 1999 (as amended);
Section 6 Child Rights Law, Lagos State;

➥ REFERENCED (CASE)
⦿ NOT ALL UNCONTRADICTED AVERMENTS WILL BE ACCEPTED BY THE COURT
✓ In B.B.B. Manufacturing Co. Ltd. Vs A.C-Bc Ltd (2004} 2 NWLR (Pt. 858) 527@ 550551 F-A, per Pats-Acholonu, JSC as follows: although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true; it is also true to say that the court is not in all the circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.

✓ It was held in R-Benkay (Nig) Ltd. v. Cadbury (Nig) Pie. (2012) 9 NWLR (Pt. 1306) 596 @ 624 C – per Peter-Odili, JSC, inter alia, as follows: “… it is not fl fait accompli that once there are averments in an affidavit which are not controverted the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see its acceptability as happened in this case. See also: Gonzee (Nig) Ltd Vs NERDC (2005) 13 NWLR (Pt. 943) 634@ 650 D, cited and relied upon.

⦿ LOWER COURT IS BOUND BY THE DECISION OF HIGHER COURTS
Dalhatu Vs Turaki & Ors. (2003) LPELR – 917(SC) @ 41 – 43 C – F, thus: “The doctrine of Judicial precedent otherwise known as stare decisis is not alien to our Jurisprudence. It is a well settled principle of Judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously.”

➥ REFERENCED (OTHERS)

End

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