African Continental Bank Plc. V. Miss Blessing Mgbeodi Ugorji (2001)
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SYLVANUS ADIEWERE NSOFOR J.C.A,
This is an appeal from the decision by the Abia State High Court (F.I. Ogbuagu, J) holden in Aba. It is being heard on the bundle of document compiled by the appellant, a departure from the Rule of the Court in that regard having been granted to it. The appeal turns on a point of jurisdiction.
The Facts:-
The applicant in the court of trial on the 6th of June, 1996, had left her home in Nneoyi village within the Amaise Community of Isiala Ngwa Local Government to visit a cousin one Chief Samuel Onwukwe Nwauzor resident in Ndiegoro village within the Aba South Local Government on vacation. While there some officers of the 1st Respondent at the trial, African Continental Bank Plc (hereinafter to be referred to simply as the Bank for short) arrested her, forcibly took her firstly, to the Bank’s office at No. 7, Milverton Avenue, Aba, then to the Area Commander, Aba and then to the Cemetery Road Police Station from whence they took her finally to the Azuka Police Station Aba where the applicant was handed over to Effiong Eyibio to be detained in custody. It was in the Police Station that the applicant was informed that she was being held in custody and detention in place of Samuel Onwukwe Nwauzor a debtor to the Bank and that she would not be released from custody and detention unless and until Samuel Onwukwe Nwauzor turned up and liquidated his indebtedness to the Bank.
The application to the Police on the 7th of June, 1996, on behalf of the applicant for bail by the solicitor Emeka Wogu Esq., was refused. While in custody, the applicant was denied access to the members of her family who brought her some food. She suffered serious mental and physical agony while in detention.
Consequent on the above, on an application, ex parte, pursuant to Order 1 Rules 2(1), (2) and (3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, leave to apply for an Order enforcing her human rights was granted on the 12th of June, 1996 by the High Court.
Leave having been granted, the applicant brought the action –
(a)Â Â motion is an action; See Kiwi Polish Co. vs. Kempthorne (1922) N.W.L.R. 77) under Order 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 praying for:-
“(a) the enforcement of the Fundamental Rights Applicant in terms of the reliefs set out in paragraph 2 of the statement accompanying the application for leave and on the affidavit verifying the said statement which documents are served along with this application”.
The motion on notice was supported with an affidavit of the (10) paragraphs sworn by the applicant – Miss Blessing Mgbeodi Ugorji. It is not absolutely necessary setting down the reliefs sought.
The application came on for hearing on the 22nd of May, 1997, (see page 23 of the Record of Appeal) before I.F. Ogbuagu, J.
The minutes of the Court on the 22/5/97 read inter alia:-
“Applicant – present
Respondent – absent
Ukpabio C.M. Esq; for the Respondents
Ukpabio Esq says – my Lord, the matter is for hearing. The respondents have been served.
Court: Very well. Move your motion”.
Counsel then moved the application and concluded. The learned trial judge delivered “off-the-hook” judgment prefacing it in the following terms:-
“Since learned counsel mentions to the Court that all the respondents have been served with the motion paper and none of them has either appeared in Court or filed any counter-affidavit in respect thereof, the effect is settled. They all are deemed to have accepted and admitted as true, the facts averred or contained in the statement of facts and the verifying affidavit”.
Continuing, the learned trial judge at page 24 of the Record wrote, inter alia:-
“In the circumstance, the Court has no other alternative than to grant as prayed the reliefs sought as follows… Although she claims N5m. (Five million naira) but having regard to the pain, humiliation, mental stress or strain, unhappiness etc attendant to or caused by her arrest and detention… The Court awards in favour of the applicant who is an (18) eighteen year school leaver the sum of N1m. (One million naira) and as against the 1st respondent who initiated and caused the wrongful, unlawful and unconstitutional arrest and detention of the applicant by the 2nd, 3rd, and 4th respondent. The applicant is also entitled to the costs of this application fixed at N5,000.00 (Five thousand naira) payable to her by the 1st respondent which should include her out-of-pocket expenses”.
Not satisfied, indeed dissatisfied and aggrieved with the decision the 1st respondent to the motion has naturally appealed therefrom to this court on two grounds of appeal immediately hereunder set down but without their respective “particulars”:-
“(a) The learned trial judge erred in law in entering judgment against the Appellant who had not been served with the substantive motion on notice for enforcement of fundamental rights.
(b) The learned trial judge erred in law in entertaining the action against the Appellant a distressed Bank by law for which the NDIC is provisional liquidator without the NDIC being a party to the proceeding”.
In this Court, African Continental Bank Plc. (1st Respondent at the trial) is the appellant. The Appellant, Miss Blessing Mgbeodi Ugorji, is the Respondent.
The appellant had filed an Appellant’s Brief deemed properly filed and served on the 5/3/2001 in compliance with the Rules of this Court. The respondent filed no brief of argument and did not ask for an extension of time to file one.
At page 2 of the Appellant’s Brief of Argument, Counsel distilled one issue from the two grounds of appeal filed for determination. It reads:-
“Whether the judgment of the lower Court is not a nullity because the appellant was not served with the relevant court processes”.
The appeal came on for hearing on the 11/6/2001. At the hearing, counsel for the respondent was present in court. Mr. Obianwu of Counsel for the appellant in laudably short a speech adopted the Appellant’s Brief of Argument and urged as to allow the appeal.
We gave the counsel for the respondent audience. He conceded the appeal.
Contentions: The contention by the counsel was that as the Record of Appeal clearly demonstrates, there was no service of the relevant court processes, id est, the notice of motion together with the accompanying relevant affidavit on the appellant. The appellant had no notification of the case against it and was not heard at the trial. Counsel referred to and relied on Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
Relying on Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979, Counsel criticized the learned trial Judge for relying on the respondent’s counsel’s ipsit dixit that the respondent had been served with the court processes to entertain and adjudicate on the matter. Citing and relying a long line of decided cases including
A.C.B. Plc. vs. Losada Nig. Ltd. (1995) 7 NWLR (Pt.405) 26; SkenConsult (Nig.) Ltd. vs. Ukey (1981) 1 S.C. 6 and Yakubu vs. Government of Kogi State & Ors. (1995) 8 NWLR (Pt.414) 386 Counsel urged us to allow the appeal.
Consideration:- I shall, firstly, advert to Order 2 R.1(4)Â Â of the Fundamental Rights (Enforcement Procedure) Rules 1979. It provides inter alia:-
“An affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing and, if any person who ought to have been served under paragraph (3) has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the court or judge on the hearing of the motion or summons”.
Then comes Order 2 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. It stipulates, inter alia, as follows:-
“Copies of the statement in support of the application for leave under Order 1 rule 2(3) must be served witht eh notice of motion or summons under rule 1(3) of Order 2 and subject to paragraph (2) of this rule no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement”.
From the above provisions of the Fundamental Rights (Enforcement Procedure) Rules. I am confirmed in my opinion that service of the relevant court processes for the enforcement of the rights is required to be effected on the parties or the party against whom it is sought to enforce the rights. Service of the notice of motion together with the relevant statement in support of the application for leave under Order 1 rule 2(3) of the Enforcement Procedure Rules is a “sina qua non” before adjudication whether or not there had occurred a violation of the fundamental right of the applicant sought to be enforced.
What then is the legal effect of or for failure to serve on the party against whom the enforcement of the right is sought? I now advert to the principle to guide me. Here, the memorable dicta per Lord Green, M.R. in Craig vs. Kanseen (1943) 1 All E.R. 108 at page 113 deserve my respectful quotation. Said the M.R.:-
“In my opinion, it is beyond question that failure to serve process where service of process to required is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can be validly be made against a man who had no notification of any intention to apply for it is one which has never been adopted in England. To say that an Order of that kind is to be treated as a mere irregularity and not something which is affected by a fundamental vice, is an argument which, in my opinion cannot be sustained.”
The “idea”, I made bold to add, “has never been adopted” in Nigeria too for as the Supreme Court, per Brett, J.S.C. in Marion Obimonure vs. Ojumoola Erinosho & Ors. (1966) 1 All N.L.R. 250 observed at page 252:
“A failure to notify the opposing party of the institution of any proceeding (other than one which is properly brought ex parte, in which case there is not opposing party) means that a condition precedent to the exercise of jurisdiction has not been fulfilled.”
The Supreme Court in the Marion Obimonure case (supra) quoted and followed Lord Green, M.R. in the Craig vs. Kenseen case (supra).
Now, applying the principle of law above discussed to the appeal in hand, the resolution of the issue for determination because “a fortiori”, the appellant not having been notified of the institution of any proceeding against it by the respondent for the enforcement of any rights against it, the learned trial judge lacked the legal authority to entertain the application by the appellant and adjudicate upon it. A condition precedent to the exercise of jurisdiction not having been fulfilled, the trial and judgment by the Court below on the 22nd of May, 1997 is a nullity.
I now proceed to record my resolution of the issue for determination formally. The issue is resolved in the affirmative, id est, it is resolved in the favour of the appellant and, eo ipso, against the respondent. There is, therefore, some merit in the appeal. I do allow the appeal and do hereby set aside the judgment of the Court below on the 22nd of May, 1997. The case is remitted to the lower court for trial de novo before another Judge. I make no order for costs.
Other Citations: (2001)LCN/1031(CA)
