Chief Sunday Eyo Okon Obong V. Patrick Leo Edet & Anor (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the ruling of Usen, J., sitting at High Court No.8, Uyo, delivered on 2/5/01 in Suit No. HU/MISC.97/99.
The appellant on 15/4/99 filed a motion ex-parte for leave of the High Court to enforce his Fundamental Human Rights, which he alleged had been breached by the respondents.
On 20/4/99, the trial court granted leave to the appellant to enforce his fundamental right. The leave granted by the trial court was to operate as a stay of all other proceedings by the police on the matter pending the determination of the case, (see page 13 of the records). Sequel to that leave, the appellant filed a motion on notice on 27/4/99 and served same on the respondents. A proof of service was filed in the trial court by the Bailiff on the 28/4/99.
The appellant through one Denis Aniedi Okon, filed proof of service to prove service on the respondents of the motion on notice. See page 35 of the record. On 26/10/2000, the appellant’s counsel, Mr. A. A. Asuquo, moved the motion on notice. On 22/11/2000, counsel for the 1st respondent, Apostle Abraham Okon, replied to the motion filed by first raising a preliminary objection, mainly, that the motion was itself incompetent because it was filed in breach of the mandatory provisions of Order 2, Rule 1(1) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The trial court on the 2/5/01 upheld the objection raised by the 1st respondent and struck out the suit.
Aggrieved by the ruling of the trial court, the appellant appealed to this court on 21/6/2001 on two grounds. From the two grounds of appeal, the appellant distilled a lone issue in his brief of argument dated 5/12/2001, and filed on 6/12/2001. The lone issue is as follows:
“Whether by wordings of the statute, the appellant is required to file and serve proof of service of motion on notice on the respondents or whether failure to serve the already filed affidavit or service on the respondents will (sic) rub the court of jurisdiction to certain a case under the fundamental right procedure.”
The 1st respondent in his brief of argument dated 30/4/05 and filed 5/5/05, identified two issues for determination as follows:
“(1) Was the Applicant’s Motion on Notice filed on 27th April, 7 days after leave was granted him for argument on 29th April, 1999, competent in the light of the provisions of Order 2 rule 1 sub 1 of the Fundamental Rights Enforcement Procedure Rules?
(2) Assuming that the Applicant’s Motion on Notice was competent despite the breach by the applicant of Order 2 Rule 1 sub 1 of the Fundamental Rights Enforcement Procedure Rules, was the Applicant’s Motion on Notice competent when the application had not in fact filed an affidavit giving the names and addresses of and the place and date of service on all the persons who have been served with the Motion on Notice or Summons before the motion or summons is listed for hearing?”
The 2nd respondent in his brief dated 24/10/05 and filed on 27/10/05 adopted the 1st respondent’s Issue No. 1 and thereafter formulated another issue as follows:
“Was the lower court with jurisdiction to entertain the applicant’s motion on notice when it was in
breach of Order 2 Rule 1(1) from the onset.”
Upon being served with the 1st and 2nd respondents’ briefs, the appellant filed a reply brief on 23/4/07 but deemed properly filed by this court on 16/5/07.
The main issue argued by the appellant in his brief is that he complied with the provisions of Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules. Learned counsel for the appellant, Mr. Asuquo, submitted that the appellant by placing his affidavit of service before the court, had complied with the said Rules. He contended that Order 2 Rule 1(4) did not contemplate service of the said affidavit of service of motion on notice on the respondents. Counsel is of the view that if the statute required service of the affidavit of service on parties, it would have said so. He submitted further that the case of Re Appollos Udo (1984) 4 NWLR (Pt.63) 120, which the learned trial Judge relied on is not on all fours with the facts of the present case on appeal and it is distinguishable. Mr. Asuquo pointed out that the appellant caused two affidavits to be filed in court by the Bailiff of the trial court, Darling I. James (see pages 15 – 16 of the record) and the other by Denis Aniedi Okon (see page 35 of the record).
It was also contended that there is nothing in Order 2 Rule 1(4) of the Rules indicating that it is a condition precedent giving jurisdiction to the court for affidavit sworn to by the applicant in compliance with Order 2 Rule 1(4) to be served on the respondents. If the statute required service of the affidavit of service on parties, it would have said so. Learned counsel contended that the language of the Rules is clear, simple and unambiguous it should be given its- ordinary simple grammatical meaning. He relied on Sebesi vs. Abubakar (2000) 19 WRN 153; UBN Ltd. vs. Sax (Nig.) Ltd. & Ors. (1994) 9 SCNJ 1; UBN Ltd. vs. Ozigi (1994) 3 SCNJ 4 and Oyenuran vs. Egbatola (1997) 5 NWLR (Pt. 524) 122 at 131. He then concluded that the learned trial Judge erred in law when she reasoned that failure of the appellant to serve proof of service on the respondents is enough to deprive the court of its jurisdiction.
On the 1st respondent’s Issue NO.1, learned counsel for the 1st respondent, Apostle Abraham Okon, submitted that the motion ex-parte filed by the appellant was granted on 20/4/99 and leave was granted to the appellant to enforce his fundamental rights and the motion on notice was fixed for the 29/4/99, seven days after leave was granted, precisely on 27/4/99. Contrary to Order 2(1) of the Fundamental Rights (Enforcement Procedure) Rules whereas by the rules, there must be at least eight clear days between the service of the motion and the day named therein for hearing. He concluded on this issue that the applicant’s failure to comply with the provisions of Order 2 (1) of the said Rules rendered the motion incompetent. He relied on Re: Appollos Udo (supra); Sken Consult vs. Ukey (1981) SC 6; UAC vs. Macfoy (1962) A. C. 152 and Antia vs. Asuguo (1990) 5 NWLR (Pt. 151) 446.
On Issue NO.2, counsel submitted that the affidavit filed by the appellant, did not give names, addresses, places and dates of persons served and neither was the affidavit filed before the motion on notice was listed for hearing on 29/4/99. Moreover, the affidavit was filed about 12 months after the motion was listed for hearing. Relying on Sken Consult vs. Ukey (supra); Madukolu vs. Nkemdilim (1962) All NLR 581; A-G, Lagos State vs. Justice Dosumu (1989) Times Weekly Law Reports (Pt. 1) page 8, counsel submitted that the type of affidavit envisaged by Order 2, rule 1 sub rule 4 was never placed before the trial court and it is the appellant who should file-the affidavit and the effect of non-compliance is that the motion is incompetent.
The 2nd respondent not only adopted the 1st respondent’s Issue NO.1, it also presented argument similar to that of the 1st respondent. So it is unnecessary to repeat those arguments presently. One notable issue raised by the counsel for the 2nd respondent, Mrs F. J. Ibanga, is that the issue of jurisdiction or want of jurisdiction can be raised at any stage and by any of the parties or by the court itself suo motu because the issue of jurisdiction is fundamental and it goes to the competence of the court.
On Issue NO.2, learned counsel for the 2nd respondent submitted that the affidavit of service required under Order 2 Rule 1(4) filed by the appellant on 18/4/2000 was filed in breach of the Rules which pointedly requires the filing to be before the motion on notice is listed for hearing. The motion on notice was listed for hearing on 29/4/99. Therefore, the condition precedent to hearing the motion on notice, not having been fulfilled at the time it was heard, the entire proceedings was a nullity. He then concluded that this appeal lacks merit and it should be dismissed and the ruling of the lower court be affirmed.
I have chosen the lone issue framed or formulated for determination by the appellant in his brief because it is succinct, precise and more derivable from the ground of appeal. It is observable that the 1st respondent formulated two issues for determination. However, Issue NO.1 is not derivable from the two grounds of appeal filed by the appellant. The 1st respondent, and indeed the 2nd respondent have not filed any cross appeal and neither have they filed any respondents’ notice. Respondents’ issue or issues must arise from or relate to and must be based on and correlate with the ground or grounds of appeal of the appellant. See Akinagun vs. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 90; Arowolo vs. Akapo (2003) 8 NWLR (Pt. 823) 451 and Palawa vs. Jatau (2003) 5 NWLR (Pt.813) 247.
An appellate court can only hear and decide an issue raised in the grounds of appeal filed before it. An issue not covered by any ground of appeal is therefore incompetent and will be struck out. See Okafor vs. Admin.-General, Anambra State (2006) 12 NWLR (Pt. 993) 131 at 138; and Achakpa vs. Nduka (2001) 14 NWLR (Pt. 734) 623.
In the instant case on appeal, the respondents’ Issue NO.1, which had nothing to do with the grounds of appeal filed by the appellant, is incompetent. I, therefore, strike out Issue No. 1 of the 1st and 2nd respondents. Although the appellant filed two grounds of appeal, he did not distill any issue from ground 1. A ground of appeal from which no issue is formulated and no argument proffered must be deemed to have been abandoned and will be struck out. See Eke vs. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 529; FRN vs. Obogolu (2006) 18 NWLR (Pt. 1010) 188 at 221; Ejura vs. Idris (2006) 4 NWLR (Pt. 971) 538 and Aye vs. State (2006) 8 NWLR (Pt. 82) 345. In the circumstance ground 1 is struck out.
This now brings me to the lone issue for determination. In my view, the lone issue revolves on a very narrow compass. It is simply put, whether by the provisions of Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the appellant is required to file and serve proof of service of the motion on notice on the respondents and whether failure to serve the already filed affidavit of service on the respondents will rob the court of jurisdiction to entertain a case under the fundamental right procedure.
To appreciate the issue involved in this appeal it is necessary to examine, at this juncture, the provisions of Order 2 Rule 1(4) aforesaid. It provides as follows:
“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.”
Now, where the words of a statute are clear and unambiguous, the court should give them their natural and grammatical and literal meaning.
See Sebeji vs. Abubakar (2000) 19 WRN 153; Oyeniran vs. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 131; Egbe vs. Alhaji (1990) 1 NWLR (Pt.128) 546; Ahmadu vs. Gov., Kogi State (2002) 3 NWLR (Pt. 205) 502 and Fawehinmi vs. I-G of Police (2002) 7 NWLR (Pt. 767) 606.
The words used in Order 2 Rule 1(4) of the Rules are simple, clear and unambiguous, therefore, they must be given their natural, grammatical and literal meaning. Sub-rule 4 of the Rule is mandatory following the use of the word “must” twice and the word “shall”. The word “must”, in the con in which it is used thereat, is a word of absolute obligation. It is not merely directory, rather, it is naturally imperative and admits of no discretion. See Ogwuche vs. Mba (1994) 4 NWLR (Pt. 336) 75 at 86 and Chukwugor vs. Chukwugor (2006) 7 NWLR (Pt. 979) 302 at 316.
The word “shall” is used to express a command or exhortation or what is legally mandatory. Its use in a statute or rules of court makes it mandatory that the rule or provision must be observed. See Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89 – 90 and Amoke Odo vs. I. G. P. (1999) 6 NWLR (Pt. 607) 467. It is therefore obvious that Order 2 Rule 1 (4) of the Rules is mandatory. A careful perusal of the provision reproduced above clearly indicate, that it is mandatory for the applicant under Order 2 Rule (4) to file an affidavit giving the names and addresses of and all persons who have been served with the motion or summons and it must be filed before the motion referred to is listed for hearing.
Secondly, if any person who ought to have been served under Order 2(1) & (3) of the Rules has not been served, the affidavit must state the fact and the reason why service has not been affected.
Thirdly, the said affidavit shall be before the Court or Judge at the hearing of the motion. The foregoing are fundamental condition precedents to the hearing of an application under the Fundamental Rights (Enforcement Procedure) Rules. Failure to comply with the conditions precedent is fatal and it robs the court of the jurisdiction to hear the application. Noncompliance with the conditions precedent is not a mere irregularity rather it goes to the competence of the trial court to entertain the action. Learned counsel for the appellant submitted that nowhere in the provision of Order 2 Rule 1(4) of Rules is it stated that it is a condition precedent for the assumption of jurisdiction by the trial court for the appellant to swear to an affidavit in compliance with the Rules to be served in the respondents.
The submission of counsel for the appellant is in two distinct and separate limbs. The first is that of Order 2 Rule 1(4) did not contain any provision which suggests that it is a condition precedent.
The conditions prescribed in Order 2 Rule 1(4) of the Rules constitute conditions precedents to the enforcement of the Fundamental Rights of an applicant in the shoes of the present appellant. Black’s Law Dictionary, 6th Edition defines a condition precedent as one:
“Which must happen or be performed before the estate to which it is annexed can vest to be enlarged; or it is one which is to be performed before some right dependent thereon accrues or-some act performed.”
See also Adeleke vs. Oska (2006) 16 NWLR (Pt. 1006) 608 at 710. In Re Appollos Udo (supra), it was held that:
“Where by a rule of court doing of an act is a condition precedent to the hearing of a case, such rule must be strictly followed, and obeyed.”
The appellant in the instant appeal failed to serve the affidavit required in Order 2 Rule 1(4) of the Rules on the respondents as at 26/10/2000 when the motion was moved by the appellant. The Rule emphatically and expressly provide that 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 filed for hearing. The law has been very robustly settled that where a condition precedent to the exercise of jurisdiction is not fulfilled, then the proceedings before the court must be regarded as a nullity. See Sken Consult vs. Ukey (supra).
In Madukolu vs. Nkemdilim (1962) All NLR 587 at 590, the Supreme Court held inter alia, that a court is competent, when the case comes before it initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. The non-compliance with the provisions of Order 2 Rule 1(4) of the Rules render the application filed by the appellant a nullity. It is not only bad but incurably bad. No matter how well conducted and decided, the defect is extrinsic to the adjudication. See Odua Investment Co. Ltd. vs. Totala (1997) 52 LRCN 2109. In Onyemizu vs. Ojiakor (2000) 6 NWLR (Pt. 659) 25 at 47, Niki Tobi, JCA (as he then was) said:
“If the non-compliance with the rules affects the root foundation or props of the case the court will not treat it as an irregularity but as nullifying the entire proceedings.”
Also in Saude vs. Abdullahi (1989) 4 NWLR (Pt. 116) 342 at 387, the Supreme Court held-as follows:
“There is non-compliance with due process of law when the procedural requirements have not been complied with, or the pre-conditions for the exercise of jurisdiction have not been complied with. In such a circumstance as in the other two cases, the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seized with the jurisdiction in respect of the action.”
From the foregoing, it is glaringly clear that the provisions of Order 2 Rule 1(4) of the Rules are not mere technical rules of procedure. Noncompliance with them is a fundamental vice that affected the root of the application. In Re Appollos Udo (supra), this Court, per Olatawura, JCA, (as he then was, and of blessed memory) said:
“Where a rule of court provides for the doing of any act before a case can be heard, it is my view that the rule of court must be followed strictly. Rules of court are to be obeyed.”
There are a plethora of cases which state clearly that non-compliance with a condition precedent is not a mere technical rule of procedure but it goes to the root of the matter. See Onyemizu vs. Ojiakor (supra) per Niki Tobi. The effect of non-compliance with the Fundamental Rights (Enforcement Procedure) Rules is to make the proceedings incompetent.
Before a court can exercise jurisdiction in respect of any matter, it must have competence which includes the case coming to it by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Ezeaduka vs. Maduka (1997) 8 NWLR (Pt. 518) 635; Madukolu vs. Nkemdilim (supra); A-G, Anambra State vs. A-G, Federation (1993) 6 NWLR (Pt. 302) 67; Saleh vs. Mungono (2003) 1 NWLR (Pt. 8007) 221 and Ngige vs. Achukwu (2005) 2 NWLR (Pt. 909) 123.
The second limb of the appellant’s contention is that there is nothing in Order 2 Rule 1(4) of the Rules indicating or suggesting- that the applicant should file and serve the respondents with an affidavit of service. Learned counsel for the appellant pointed out that if the statute required service of the affidavit on parties, it would have said so. The issue has been put to rest by Olatawura, JCA, (as he then was) in Re Appollos Udo (supra).
Learned counsel argued that failure of the appellant to serve proof of service on the respondents is not enough to rob the court of its jurisdiction because Order 2 Rule 1(4) does not contemplate such service.
I agree with the appellant’s counsel that the failure of the appellant to personally serve the proof of service on the respondents is not enough to rob the court of its jurisdiction because Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules did not say so. The appellant, in the instant appeal caused two affidavits to be filed by the bailiff of the trial court, namely, Darling I. James. See pages 15 – 16 of the record. The other service was effected by Denis Aniedi Okon for the appellant. See page 35 of the record. In my view, the appellant has complied fully with the provision of Order 2 Rule 1(4) of the Rules. The instant case on appeal is distinguishable from the Re: Appollos Udo (supra). In that case the appellant there did not file the necessary affidavit envisaged or prescribed by the Rules. This is not the position in this appeal. The appellant in this appeal actually filed the necessary affidavit in compliance with the rules as was found by the trial Judge. So the case of Re: Appollos Udo (supra) is quite distinguishable from the facts of the instant case on appeal.
At this juncture, I part company with the learned trial Judge and learned counsel for the respondents. To my mind it will amount to giving undue prominence .to arid legalism and crass technicalities. For the trial court to decline jurisdiction to hear the motion for the enforcement of the fundamental human rights of the appellant on the flimsy excuse that the applicant did not serve the respondents with an affidavit of service personally is to rely on sheer technicalities. There is evidence that two different affidavits of service were filed by the Court bailiff and one Denis Aniedi in compliance with the Rules. It is in my view, immaterial who actually served the affidavit. The purpose of service is for the respondents to be aware of the case. If that is the case, should it then matter who served the affidavit or other processes. I think not. It will be taking the matter too far to insist that the appellant should serve proof of service on the respondents personally. Courts should be more interested in doing substantial justice and not to follow technical rules of procedure slavishly. Courts are enjoined to do justice in cases or matters that are brought before them and they should not be deterred by issues raised on sheer technicalities, particularly where such issues relate to procedural irregularities which are curable.
The trial court held at page 45 of the record that:
“….the applicant had duly sworn to and filed the affidavit required by law but failed to have this served on the respondents, so as to activate the jurisdiction of this court.”
Now, at page 35 of the record is the affidavit of service of motion on notice, deposed to by Denis Aniedi Okon. In paragraph 4, he deposed as follows:
“That the applicant informs me further and I verily believe him that he acted as pointer to the Bailiff of this Honourable Court for the purpose of serving the motion on notice on the 1st respondent at Nse Uffot, Uyo. He also carried the Bailiff of the High Court to Ikot Akpan Abia (sic) in his motor cycle ‘where the 2nd respondent was served with the said court process.”
Paragraph 4, set out above was not challenged or contradicted by the respondents in a counter-affidavit. Therefore, the averments under paragraph 4 must be deemed true and correct. See Azeez vs. State (1986) 2 NWLR (Pt. 23) 541 at 545; Egbuna vs. Egbuna (1989) 3 NWLR (Pt.106) 773 and Agu vs. NICON Plc. (2000) 11 NWLR (Pt. 677) 187. In the circumstances there was proper service on the respondents as required by rules. Thus, the appellant complied with the provisions of Order 2 Rule 1(4) of the Rules. Furthermore, Mr. Aniedi is a person who had the authority of the appellant to depose to the affidavit.
I am not unmindful of the fact that the affidavit of Mr. Aniedi was sworn to and filed on 18/4/2000 but the motion itself was heard on the 20/10/2000.
Thus the affidavit was filed before the motion was heard.
As at today when this judgment is being delivered, the appellant had not enforced his fundamental right which was the main reason for coming to court. Speed is of the essence in hearing application for the enforcement of fundamental rights. Presently, I cannot see any speed in this application that was commenced more than 9 years ago. It is sincerely hoped that the appellant has regained his freedom by other legal process and he is still not in prison custody.
The hey days of technicalities are now over, the Courts are now more interested in doing substantial justice. The instant case on appeal is an example of what happens when a court relies on technicalities to determine a matter. The duty on court is not to adhere to technicalities at the expense of justice. Reliance on technicalities in determining sensitive matter has always been frowned upon by the courts. It only prevents the other side from being heard. In a situation where a party is in prison custody, to shut him up does much harm to the cause of justice. It is for the foregoing reasons that I reach the conclusion that there is merit in this appeal and it should be allowed.
Accordingly, this appeal is hereby allowed. The Ruling of Usen J., in Suit No. HU/MISC.97/99 delivered on 30/4/01 be and is hereby set aside. For what it is worth the motion on notice is remitted to the Chief Judge of the High Court of Akwa Ibom State for re-assignment to any other Judge of Akwa Ibom State High Court for hearing. Costs of N10,000.00 to the appellant.
Appeal allowed.
Other Citations: (2008)LCN/2984(CA)
