Assessing The Jurisdiction Of Family Court Of Oyo State

By Olumide Toyinbo

Establishment

With the enactment of Child’s Rights Act 2003(Act No. 26 of 2003) by the Federal Government of Nigeria, most states of the Federation have passed versions of it as their state Laws. Three years after the enactment of the Act, Oyo state passed into Law its own Child Rights Law 2006. Though the law was passed in 2006, the Family Court which is a significant creation of the Law never got operational force until July 2020, needful to state that the Family Court is pivotal to comprehensive implementation of the Law.

Section 150 of the Oyo State Child’s Rights Law 2006 (hereinafter referred to as “The Law”) introduced and established the Family Court of Oyo State (hereinafter referred to as “FCO”). The section provides that the Court shall be for the purposes of hearing and determining matters relating to children. This gives the FCO a seeming of specialised court, as it focuses on one particular subject of law. Before the inauguration of FCO, regular courts settle cases pertaining to children.

Civil Jurisdiction of FCO

Section 152 of the Law captures the general civil jurisdiction of FCO thus:

(1) Subject to the provisions of this Law and in addition to such other jurisdiction as may be conferred on it by any other law, the Court shall have unlimited jurisdiction to hear and determine:-

• any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue;”

From the provision, the FCO has unlimited jurisdiction to determine applications dealing with the enforcement of legal rights of a child granted under the Law and any other valid law. Also, any issue where liability that may be incurred by persons having parental responsibilities over the child, privileges to be enjoyed by the child, interests of the child and obligations owed to the child are raised may be determined by the Court. Examining Sections 150 and 152 of the Law, it is clear that any civil case involving a child may be brought before the Court.

Issues relating to adoption, custody, guardianship and maintenance of the child (whether during the subsistence of marriage or post-dissolution) are to be adjudicated upon by the FCO. The Court as well has jurisdiction to make orders including emergency protection order, guardianship order, financial compensation order, maintenance order care order, child assessment order, contribution order, education supervision order, orders as to custody and others as provided by the Law.

Criminal Jurisdiction of FCO

FCO, as provided in Section 152(1) (b) of the Law shall subject to the provision of the Law and other jurisdiction that may be conferred on it by any other law, the court shall have unlimited jurisdiction 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 a child, against a child or against the interest of a child”. This implies clearly that any crime involving a child shall be tried by the FCO, regardless whether the child is the actor of the crime or a victim.

However, the position of the Law regarding the criminal jurisdiction of the Court is highly conflicting. It can be said that the same law that gives FCO the power to determine all criminal proceedings pertaining to the Child strips it off the power indirectly at the same time. Section 163(1) of the Law states- “no other Court, except the Court, shall exercise jurisdiction in matter relating to children as are specified in this Law”. Strangely, Subsection 2 of the Section provides that “the provisions of subsection (1) of this section shall not affect the jurisdiction of the normal criminal courts to try cases of offences by adult offenders as specified in Part III of this law and any other law.” Part III of the Law specifies offences that can be committed against the Child or his interest.

Ordinarily with the Law, in an instance where an adult defiles a child, the FCO has the jurisdiction, being a case involving the Child. Counsel may successfully raise Section 163 Subsection 2 of the Law to make sure the case is tried in the regular Court. Whether adequate provisions will be made for protection of the child as provided by the Law throughout the proceeding is not totally assuring. With such situation, one of the purposes for which FCO has been established and the Child Rights Law enacted has been technically defeated.

Levels of Operation

Section 151 of the Law provides for two levels of operation for FCO which include: the High Court level which is a division of the High Court and the Magistrate level which serves as a Magistrate Court. Both levels are distinguished by their jurisdictional capacities. The FCO has jurisdiction on two forms of matters. They include- (1) Matters relating to the enforcement of rights of the child and; (2) Matters brought in respect of the child other than enforcement of rights of the child.

High Court level of the FCO is granted the exclusive jurisdiction by Section 153(4) to deal with all matters relating to the enforcement of rights of the child as set out in the Law and also those seeking redress by a child alleging that a right has been, is being or is likely to be infringed in respect of him. In addition, the Court has exclusive jurisdiction to deal with offences punishable with death or terms of imprisonment for a term of ten years and above, also, matters relating to a child where the claim involves an amount of fifty thousand naira and above, divorce, custody of the child and appeals from the Court at the Magisterial level.

At the Magisterial level as vested by Section 154(4), the Court has power to try offences and deal with all matters not specifically assigned to the Court at the High Court level. This makes the jurisdiction of FCO at the Magisterial level expressly residual. Matters to be brought to Magisterial level of FCO can only be matters brought in respect of the child other than enforcement of the Child’s rights.

Constitution

Section 153(3) and Section 154(3) make provision in relation to the proper constitution of the High Court Level of FCO and Magisterial level respectively. The Family Court of the High Court level is duly constituted with a Judge and two assessors, one of whom shall be a woman and both has attributes of dealing with children and matters relating to children preferably in the area of child psychology education. The Magisterial level is properly constituted with a Magistrate and two assessors of the same qualification as that of the High Court level. Worthy to state that appointment of members of the FCO at all levels shall be done by the Chief Judge of the State.

Recommendations and Conclusion

The commissioning of the Family Court of Oyo State is a great step towards championing the cause of Child Rights advocacy in the State. Save only the conflicting provisions pertaining the criminal jurisdiction of the Court, cases involving the Child will be expeditiously determined. With the new development, more persons and bodies will rise to seek justice for the vulnerable or victimised children and processes will be expectedly done with greater force and alacrity unlike before.

For further effectiveness of the Court, the Chief Judge of the State as empowered by Section 162 of the Law may make rules regulating the procedure in the Court. Lagos State has the Family Court of Lagos State (Civil Procedure) Rules 2012 which regulate proceedings relating to the rights and welfare of the child. Great importance should also be attached to continuous training of personnel of the Court and even counsels, this will enhance the special competence they require to render excellent service towards seeking justice for the Child.

The location of FCO created is Ibadan and it is expected to serve the whole Oyo State. Cases in other parts of Oyo State will have to find their way to the Capital City which can pose inconvenience or discouragement on the part of the concerned. The judiciary can work on making the Court more accessible by bringing to force branches of FCO in other parts of Oyo State. The FCO is not an independent Court as it is not recognised by the Constitution of the Federal Republic of Nigeria 1999 (as amended), thus it remains a division of the High Court of the State.

Olumide Toyinbo, [email protected]

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