The Court of Appeal sitting in Ibadan has overturned a judgment of the Oyo State High Court that permitted female Muslim students of the University of Ibadan International School (ISI) to wear hijab with their school uniforms, holding in a split 2-1 decision that the school is a private institution not covered by the Supreme Court’s earlier precedent on hijab use, and that the students voluntarily waived their right to wear the hijab by signing an undertaking to abide by the school’s rules, regulations, and uniform dress code upon enrolment.
The appellate court delivered the ruling on Friday while deciding an appeal filed by the management of ISI against the Oyo State High Court’s judgment of May 22, 2024.
The dispute dates to November 2018, when the ISI management barred several female Muslim students from wearing the hijab over their school uniforms. In 2019, parents of 11 female Muslim students, supported by the Muslim Rights Concern (MURIC), filed a fundamental human rights enforcement suit against the school, arguing that the hijab ban violated the students’ constitutional right to freely practise their religion as guaranteed by the Constitution of the Federal Republic of Nigeria.
On May 22, 2024, the Oyo State High Court ruled in favour of the students, affirming their right to wear the hijab as part of their uniform and effectively declaring the school’s hijab ban unconstitutional.
Dissatisfied with the judgment, the ISI management appealed to the Court of Appeal, contending that ISI is a private school and that the High Court’s judgment did not properly apply the law as it relates to private educational institutions.
In the lead judgment, Justice Biobele Georgewill, with Justice K.I. Amadi concurring, allowed the school’s appeal and set aside the High Court’s ruling.
The centrepiece of the majority decision was the distinction between public and private schools in the application of the Supreme Court’s earlier hijab precedent.
Justice Georgewill held that the Supreme Court judgment which granted the use of hijab was delivered in respect of a public school in Lagos State and that the decision was not applicable to private schools.
“In public schools you can wear hijab on school uniforms based on the judgment of the Supreme Court, but the Supreme Court is yet to make any decision on the use of hijab in private schools,” Justice Georgewill stated.
“The judgment of the lower court allowing female Muslim students to wear hijab on their school uniforms in ISI, a private school, is set aside,” the judge declared.
This holding establishes a critical legal boundary: the constitutional right to wear hijab in schools, as recognised by the Supreme Court, applies to public schools operated by the government but does not automatically extend to private institutions that operate under their own rules and regulations.
The majority judgment introduced a second, independent ground for its decision: the doctrine of waiver.
Justice Georgewill held that the right to practise one’s religion is a personal right which any person can voluntarily waive based on his or her beliefs. He found that the female Muslim students of ISI had waived their right to wear hijab on their school uniforms by signing an undertaking to abide by the rules and regulations of the school, including its uniform dress code, when they enrolled.
The implication of this finding is that even if the Supreme Court’s hijab precedent were applicable to private schools, the students in this case could not rely on it because they had voluntarily agreed, as a condition of their admission, to comply with the school’s uniform policy. Having accepted the school’s rules, they could not subsequently challenge those same rules as a violation of their fundamental rights.
The waiver doctrine as applied here raises significant questions about the scope of fundamental rights in contractual relationships. The majority’s position is that a person who voluntarily agrees to a restriction on the exercise of a fundamental right, as a condition of accessing a private service, is bound by that agreement and cannot later invoke the right to override the contractual restriction.
Justice Fadawu Umar dissented from the majority decision, delivering a minority judgment that upheld the Oyo State High Court’s decision granting the use of hijab by female Muslim students of ISI.
Justice Umar held that the appeal lacked merit and dismissed it accordingly, indicating that in his view, the right to wear hijab as an expression of religious belief applies regardless of whether the educational institution is public or private.
The dissent suggests that the question is not conclusively settled and may ultimately require determination by the Supreme Court, which has not yet pronounced on the specific issue of hijab use in private schools.
The majority judgment establishes three interconnected legal principles.
First, the public-private distinction in hijab jurisprudence. The Supreme Court’s precedent on the right to wear hijab in schools, delivered in the context of a public school in Lagos State, applies strictly to public schools. It does not extend to private schools, which operate under their own institutional rules and are not subject to the same constitutional obligations as government-operated schools. The Supreme Court has not yet addressed the question of hijab in private institutions, and until it does, the existing precedent cannot be applied by analogy to the private school context.
Second, the right to religious expression is a personal right that can be voluntarily waived. Where a student enrols in a private institution and signs an undertaking to comply with the school’s rules, including its dress code, that undertaking constitutes a voluntary waiver of the right to deviate from the prescribed uniform. The waiver is binding because it was freely given as a condition of admission.
Third, fundamental rights exist within a framework that recognises the autonomy of private institutions. While the Constitution guarantees freedom of religion, private institutions retain the right to establish and enforce institutional rules, including dress codes, that are binding on persons who voluntarily choose to participate in those institutions.
Justice Umar’s dissenting judgment, while not elaborated upon in the available report, implicitly rests on the contrary proposition: that fundamental rights, including the right to religious expression, are not subject to waiver through institutional rules, and that the distinction between public and private schools should not determine whether a citizen can exercise a constitutionally guaranteed right.
The dissent preserves the legal argument that the hijab is not merely a matter of dress code preference but a religious obligation for those who believe in it, and that requiring a person to waive a religious obligation as a condition of accessing education, even private education, raises constitutional questions that cannot be resolved simply by characterising the school as private.
The case moved through the following stages: November 2018, when the ISI management barred female Muslim students from wearing hijab; 2019, when the fundamental rights suit was filed at the Oyo State High Court; May 22, 2024, when the High Court ruled in favour of the students; and July 2026, when the Court of Appeal reversed that decision and reinstated the school’s authority to enforce its uniform policy.
The students and their supporters have the option of appealing the majority decision to the Supreme Court. If they do, the apex court would be presented with the opportunity to pronounce, for the first time, on the specific question of whether the right to wear hijab extends to private educational institutions, an issue that the Court of Appeal’s majority judgment identified as one on which “the Supreme Court is yet to make any decision.”
The case also raises the broader question of the limits of fundamental rights in the context of private institutions, a question with implications far beyond the hijab issue. If the waiver principle established by the majority is upheld, it would mean that any private institution, whether a school, an employer, or a service provider, can lawfully restrict the exercise of fundamental rights through contractual terms that participants voluntarily accept upon entry.
The judgment was delivered by the Court of Appeal, Ibadan Division. The lead judgment was read by Justice Biobele Georgewill, with Justice K.I. Amadi concurring. Justice Fadawu Umar delivered the dissenting judgment.
The post “Hijab Right Waived By School Undertaking” — Court Of Appeal In Split 2-1 Ruling Holds ISI Private School Not Bound By Public-School Hijab Precedent appeared first on TheNigeriaLawyer.
