The Federal High Court in Lagos in a landmark judgment has ruled that the Federal Government, the country’s 36 states and the Federal Capital Territory (FCT) “have the legal obligations to provide free, compulsory and universal basic education for every Nigerian child of primary and junior secondary school age.”
The judgment was delivered on October 9 2025 by Hon. Justice D.E Osiagor following the lawsuit filed by Femi Falana SAN and Hauwa Mustapha (suing for themselves and on behalf of Alliance on Surviving Covid-19 and Beyond). The certified true copy of the judgment was obtained yesterday.
The Federal Government, the 36 states and the FCT were the respondents in the suit.
In his judgment, Justice Osiagor held that, The court also ruled that, “while by virtue of Section 11(2) of the Universal Basic Education Act the Federal Government, the 36 states and the FCT are under a binding statutory duty to provide free and compulsory basic education within their territories, their decision to access or not access the Federal matching grants remains discretionary.”
Justice Osiagor also held that, “any State that elects to participate must comply strictly with Section 11(2) by contributing 50% counterpart funds before drawing from the Universal Basic Education.”
Justice Osiagors judgment, read in part: “I hold that Section 11(2) is directory and conditional, not mandatory, and that failure to access the Federal block grant does not per se amount to illegality.”
“I have carefully considered the Originating Summons, the Affidavit in support and the Exhibits annexed thereto, the Written Address of learned counsel for the Applicant, the various Counter Affidavits and Written Addresses filed on behalf of the 2nd, 4th, 6th, 9th and 27th Respondents, and the submissions made therein.”
“I have also examined the provisions of the Compulsory, Free Universal Basic Education Act, 2004, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the relevant judicial authorities cited by the Applicant and the Respondents that replied.”
“The issues for resolution in this suit, in my humble view, can be distilled as follows: Whether the Applicant possesses the requisite locus standi to institute this action?”
“Whether the right to free, compulsory and universal basic education under Section 2(1) of the UBE Act, 2004, is enforceable and justiciable against the Respondents?”
“Whether the refusal or failure of the Respondents to contribute not less than 50% counterpart funding and access the N68 billion Universal Basic Education Fund is illegal as it violates section 11(2) of the Universal Basic Education Act, 2004?”
“On Issue One – Whether the Applicant possesses the requisite locus standi to institute this action It is trite that locus standi touches on the jurisdiction of the Court, and once absent, the suit must collapse.”
“The Applicants brought this action on behalf of the Alliance on Surviving COVID-19 and Beyond (ASCAB), a public interest group, contending that where fundamental public rights are involved, strict personal injury is not required. Our courts have evolved a more liberal approach to locus standi in public interest litigation.”
“The Court of Appeal held as follows: ‘The issue of locus standi is a question which in my view our courts have tried to construe in a narrow sense and have tendered to regard anyone who institutes an action in which he is not directly involved but perhaps circumstantially or inferentially connected as a busybody.”
“It needs the courage, wisdom and proper understanding of our socialeconomic environment for an activist Judge to widen the scope of the law on Locus Standi. Some Judge and advocates have shown some trepidation in handling this matter.”
“I believe we have to take the bull by the horn and do justice to a matter before the court without bending overly backwards because a matter is on boarder-line in respect of whether the initiator of an action has the standing order to do so.”
“I think that where the cause is laudable and will bring peace, justice and orderliness that will reflect the spirit of the Constitution then we should not shirk our responsibility in this area to help in advancing the cause of Social, Economic and Cultural matters as they affect this society.”
“The development of the law of locus standi has been retarded extensively due to fear of floodgate or persons meddling into matters not even remotely connected with them. In my opinion, let them meddle and let the court remove the wheat from the chaff.”
“I believe that it is the right of any citizen to see that law is enforced where there is an infraction of that right or a threat of its being violated in matters affecting the public law and in some cases of private law such as where widows, orphans are deprived, and a section of the society will be adversely affected by doing nothing.”
“In the present case, the Applicants are citizens of Nigeria while the first Applicant is a Senior legal practitioner and Human Right activist practising in Nigeria concerned with access to education, a right which, though situated under Chapter II of the Constitution, has been given legislative expression by the enactment of the UBE Act, 2004.”
“I hold that the Applicant has sufficient interest in ensuring compliance with that Act. The Applicants demonstrated a genuine concern for the enforcement of children’s educational rights, supported by evidence of unaccessed federal grants.”
“The suit raises constitutional and statutory questions affecting millions of Nigerian children. Accordingly, I hold that the Applicants have sufficient interest and thus possess locus standi to institute this action.”
“I therefore resolve Issue One in favour of the Applicants.”
“On Issue Two – Whether the right to free, compulsory and universal basic education under Section 2(1) of the UBE Act, 2004, is enforceable and justiciable against the Respondents.”
“The argument of several Respondents, notably the 2nd and 27th Defendants, is that the right to free education under Section 18 of the Constitution falls under the Fundamental Objectives and Directive Principles of State Policy, and by Section 6(6)(c), is non-justiciable and non-fundamental as those rights in chapter 4.”
“While this submission is correct in so far as it concerns the Constitution simpliciter, the enactment of the UBE Act, 2004, by the National Assembly has given the right to free, compulsory basic education a statutory footing.”
“Once Parliament has enacted a law imposing obligations, those obligations become enforceable.”
The sub-committee on National Objectives and Public Accountability headed by Professor Nwabueze, on the 1979 Constitution in its report said: “Here the Commonwealth has something to offer. The provisions in the Indian and Pakistan Constitutions have served as a model for us.”
“We also derived assistance from the United Nations Charter and Economic Rights. It will therefore, be proper to examine decisions of Indian Courts on the issue of justiciability or non-justiciability of Chapter 2 of the 1999 Constitution.”
“Let me take just one. In the case of Mangru v. Commissioner of Budge Bude Municipality (1951) 87 CLJ 369, it was held that the Directive Principles require to be implemented by legislation, and so long as there is law carrying out the policy laid down in a Directive neither the State nor an individual can violate any existing law or legal right under colour of following a directive.”
“I hold that the provisions of Sections 2(1) and 11(2) of the UBE Act are justiciable and binding on the Respondents. Issue Two is resolved in favour of the Applicants.”
“On Issue Three – Whether the refusal or failure of the Respondents to contribute not less than 50% counterpart funding and access the N68 billion Universal Basic Education Fund is illegal as it violates section 11(2) of the Universal Basic Education Act, 2004.”
“The Applicants argued that Section 11(2) of the Compulsory, Free Universal Basic Education Act, 2004 imposes a mandatory statutory duty on each State Government to contribute not less than 50% of the total cost of UBE projects, failing which they are in breach of the Act.”
“They rely on the literal use of ‘shall’ and the clear legislative intent to compel State participation in basic education. They submit that the refusal to contribute counterpart funds has crippled the educational scheme and resulted in over 20 million out-of-school children, which undermines both Section 2(1) of the UBE Act and Section 18 of the 1999 Constitution (as amended).”
“Conversely, the 27th Respondent (Lagos State) and others argue that the Federal Government’s contribution under Section 11(1) is only an assistance, and that accessing the fund is discretionary.”
“They contend that the word ‘shall in Section 11(2) merely describes the condition precedent for any State that chooses to benefit from the Federal assistance. It does not make the act of accessing the fund compulsory.”
“It was further argued that the UBE Act’s Section 1 expressly states that the Federal intervention is merely ‘assistance to States and Local Governments,’ hence no penal consequence or legal compulsion arises if a State declines such aid.”
“For any State to qualify for the Federal Government block grant pursuant to subsection (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.”
“The structure of this provision reveals that the trigger for applying subsection (2) is a State’s decision to participate in or benefit from the Federal grant. The obligation to contribute 50% only arises when the State opts to access the block grant.”
“The use of ‘shall’ here is therefore conditional, not absolute. If the National Assembly intended to make the contribution compulsory on all States, irrespective of participation, it would have inserted a penal consequence for failure or a direct enforcement clause. It did not.”
“The absence of such sanction supports the view that ‘shall’ here is directory – expressing a requirement for qualification, not a mandatory compulsion. Moreover, Section 1 of the same Act expressly provides that the Federal Government’s role ‘shall only be assistance to the States and Local Governments.’”
“The word ‘assistance’ connotes aid, support, or help, which a recipient may lawfully decline. Thus, while the provision is mandatory in form, it is permissive in substance-that is, mandatory only upon election to access the fund.”
“States that choose not to access the Federal grant are not in direct violation of Section 11(2), provided they independently fund and maintain their statutory obligation to provide basic education under Section 2(1) of the Act.”
“It follows that the failure of a State to access the Federal matching grant may be unwise or undesirable from a policy perspective, but it is not, in itself, illegal under Section 11(2) of the UBE Act.”
“The statutory duty imposed on States is to provide free, compulsory, and universal basic education (Section 2(1)); the Act does not render the means of achieving that goal – i.e., through Federal assistance compulsoгу.”
“Accordingly, while the Court strongly deprecates the refusal of States to access available education funds, such refusal does not constitute a breach of law, unless it can be shown that the State has altogether failed to provide basic education, contrary to Section 2(1) of the Act and the Child’s Rights laws enacted in each State.”
Tayo Soyemi
Falana and Falana Chambers
27/11/2025
