Chike Arah Akunnia V Attorney-general Anambra State Of Nigeria (1977)

LawGlobal-Hub Lead Judgment Report

IDIGBE, JSC.

The question in this appeal is whether the procedure by Originating Notice of Motion is appropriate for approaching the court for a request to have a matter in difference, under the provisions of Chapter III of the Constitution of Federation (i.e. the Federation of Nigeria) No. 20 of 1963, hereinafter referred to as “the Constitution”), decided on relief granted in these proceedings commenced by Originating Notice of Motion in the High Court of East Central State (now, Anambra State) holden at Onitsha, the appellant sought, against (1) The Attorney General, East Central State of Nigeria (2) B. U. Ajoku Esquire, the Resident and Sole Administrator, Onitsha Urban Division and (3) The Commissioner of Police, East Central State of Nigeria, the following orders:   

“(i) that the Order banning public meetings at Onitsha which was made by the 2nd Respondent is illegal unconstitutional and void; (ii) that the applicant is entitled to hold the second burial ceremonies of his cousin Peter Menkiti on the 16th day of January, 1975 or any other subsequent date without the permission of the second respondent or any officer of the Nigeria Police Force, and (iii) an order restraining the respondents, their servants, agents and all officers, servants or functionaries of the East Central State Government or the Nigerian Police Force from interfering with the right of the applicant to hold the ceremonies aforesaid”  

After the 2nd respondent had in an affidavit he filed in these proceedings disclosed that he published a ban on public meeting in Onitsha Urban Division “pursuant to the powers vested” in him “by virtue of the provisions of the Public Order (Maintenance) Edict 1975 and the delegation of powers thereunder made” to him “by His Excellency, the Administrator of the East Central State”, the appellant obtained the leave of the court to amend and seek under the first prayer in his Notice of Motion, an order:-   “That the Public Order (Maintenance) Edict 1975, banning public meetings in the East Central State is illegal, unconstitutional and void”. When the matter came up for hearing on the 3rd of March, 1975, the learned trial Judge made the following notes pursuant to the stipulation of counsel on both sides:- “NOTE: Both sides agree that if prayer No. 1 succeeds the court can consider prayers 2 and 3, but not otherwise”

Thereafter, the learned Principal State Counsel, Mr. Oyudo, appearing for the respondents took several objections in limine. In a nutshell, his objection which is material to the question in this appeal was that “the present action questioning the validity of an Edict is wrongly brought” as it should have been commenced “by a Writ of Summons, and not by “any other process”. In his reply the learned counsel for the applicant, the appellant herein, maintained that because no provisions with respect to the practice of, and procedure for, bringing to the High Court, a complaint under subsections (1) of Section 32 of the Constitution have as yet been made as required by sub-section (3) of Section 32 aforesaid, the procedure by Originating Notice of Motion (adopted in these proceedings) was appropriate.

In his ruling, a very lengthy one, indeed, the learned Judge in the court below (Oputa, J., as he then was), upheld the objection on behalf of the respondents and dismissed the application.   This appeal is from the Ruling aforesaid. Two grounds of appeal filed and argued before us read:- “1. The learned trial Judge erred in law in deciding that the procedure adopted by the appellant was wrong when no rules have been made under the Constitution of the Federation for the enforcement of the fundamental right. 2. The decision of the learned trial Judge is wrong and cannot be supported in law having regard to the fact that the application was for the enforcement of (a) Fundamental Right in respect of which jurisdiction is conferred upon the court by the Constitution of the Federation.”   At this stage, we think it is desirable, to set out in detail some of the relevant passages in the judgment of learned Judge in the court below. Said the learned Judge:-

(A) “There is no procedure of Originating Notice of Motion under our own Rules of court. Under Order 35 of our High Court Rules, motions deal with interlocutory matters in a pending suit and under that Order motions are not meant to initiate proceedings. By our Order 2 Rule 1 ‘Every suit shall be commenced by a Writ of Summons signed by a Judge, Magistrate or other officer empowered to sign summonses, etc’

(B) Section 16 of the High Court Law Cap 61 of (the) 1963 (edition of the Law of Eastern Nigeria) empowers the High Court of the East Central State to exercise its jurisdiction as regards practice and procedure primarily in the manner provided by this Law – the High Court Laws and Rules made thereunder ………………….. and in default in substantial conformity with the law and procedure for the time being observed in England in the High Court of Justice on the 30th day of September, 1960’ …………………………… It is only when our rules have not made any provisions to cover an existing contingency or where the provisions of our rules are not full enough, that we may supplement the existing deficiency by importing the relevant English procedure under the R.S.C. 

(C) “Originating Summonses and Originating Motions are appropriate methods of beginning proceedings in which the sole or principal question at issue is or is likely to be one of the construction of an Act or of any Instrument made under an Act ………………. where there are no issues of fact requiring proper pleadings and relevant evidence but rather where the only issue that may arise is one of law, then these summary and speedy methods of initiating proceedings can be resorted to. 

(D) “…………………..If one views the matter from another angle, it is obvious that in a case like this, the facts which the applicant alleges constitute a breach of his fundamental rights guaranteed to him under the Constitution, will have to be clearly set out in his pleadings. It has also to be shown that those rights of his have been infringed by the Edict …………… Furthermore, it has to be pleaded that Edict No. 1 of 1975 is not reasonably justifiable in a democratic society in the interest of public safety, public order and public security. (E) “Originally the complaint was that the order of the 2nd respondent ……………… banning public meetings at Onitsha is illegal and unconstitutional. On the 1st February, 1975 the applicant ……………… obtained an amendment.

He is now praying for an order that the Public Order Maintenance Edict is illegal, unconstitutional and void. This amendment created more troubles for the applicant. It is one thing to claim a right under a statute and to ask the Government to declare that right. But it is an entirely different thing to challenge the validity and constitutionality of a law …………………………………. But with the resulting amendment, the area of the dispute widened and it then became a dispute which cannot be summarily settled on a mere motion. It became a dispute which necessitated formal pleadings in an ordinary action for declaration ……………… All these should not be sacrificed on the altar of speedy hearing. ………………………. From this point of view of procedure, I agree with the submission of learned Principal State Counsel that where the redress sought is a declaration that a law or an Edict is unconstitutional, illegal and void the proper procedure should be by a declaratory action  We deliberately set out in detail the above passages of the judgment of the lower court which we also deliberately grouped in five Sections (viz A, B, C, D, & E) appearing along the margin of the quotations above because we consider it necessary to deal specifically in this judgment with certain principles of law which reference was made in the quotations above by the learned Judge.

As already pointed out although Section 32 of the Constitution gives the citizen a right to approach the High Court and request to have a matter in difference under the provisions of Chapter III of the Constitution decided and relief granted, no provisions with respect to the practice of, and procedure for, doing so has as yet been made. Among the various Fundamental Rights of the citizen entrenched in the Constitution by Chapter III thereof, are his Rights to (a) freedom of movement and (b) peaceful assembly and association (Section 26 and 27 refer); these Rights are, however, in each case subject to the limitations provided in the sub-sections of the principal sections of the Constitution which guarantee them. The learned Judge in the court below considers that the limitations imposed on the Rights of the subject or citizen under the provisions of the   PAGE| 5   sub-sections aforesaid make it absolutely necessary that, in all cases in which the citizen seeks to exercise his right under the provisions of Section 32(1) of the Constitution, it will until such time as specific provisions to the contrary relating to practice and procedure in respect thereof are made be necessary for the citizen to come to court by way of an action commenced by a Writ of Summons and not by any other process; and this is particularly so where the validity of an Edict is challenged in court.

The reason for this rather uncompromising stand of the learned trial Judge is to be found in his view that it is essential, in this type of case, to set out by pleadings delivered on both sides, for the consideration of the court all relevant facts which may assist the court in coming to a conclusion on the question whether any interference with the Rights of the Citizen under Sections 26 and 27 of the Constitution are justified by some of the provisions of the Edict challenged (if and when considered in the light of the limitations contained in the sub-sections of Sections 26 and 27 aforesaid). And it is the learned Judge’s view that the order for pleadings (or for detailed statements of facts) can only be made in an action commenced by a Writ of Summon   s. Yet again, the learned Judge in the court below takes the view that Rule (1) of Order 2 of the High Court Rules made under the High Court Law (Cap 61 in Volume IV of the 1963 edition of the Laws of Eastern Nigeria), applicable in the East Central State at the hearing in these proceedings must be complied with.

That rule provides that “every suit shall be commenced by a Writ of Summons signed by a Judge, Magistrate, or other officer empowered to sign a summons”; and as the expression “Suit” is defined by Section 2 of the High Court Law aforesaid as including “action, and a civil proceeding commenced by Writ of Summons” the learned Judge maintains in his ruling that “it is only if the present applicant can show that what is now before the court is not a suit that he can wriggle out of the firm grip of rule (1) of Order 2”.   We are satisfied that, in the main, the attitude adopted by the learned Judge in the foregoing passages of his ruling and as summarized in the paragraph immediately preceding stems, largely, from a misunderstanding of both Order 2 rule (1) and Section 16 of both the High Court Rules and the High Court Law aforesaid, respectfully. Order 35 of the High Court Rules aforesaid is clearly intended to make provisions for interlocutory. (NOT original) applications and certainly has no relevance to the matter under consideration.

Although that Order relates to “motions”, (as a means for bringing interlocutory applications), it has no bearing on the subject of “motions” as a means of commencing or initiating civil proceedings. There is also no doubt that the High Court Rules aforesaid do not make any provision for commencement of proceedings by originating motion or originating summons. While, however, it is true that Order 2 rule 1 of the Rules aforesaid provide for commencement of every suit and that the expression “suit” is defined in Section 2 of the High Court Law as including “action and every civil proceeding commenced by Writ of Summons, or in such other manner as may be prescribed by rules of Court, but not a criminal proceeding” it is clear from a careful reading of the entire provisions of the High Court Rules that rule (1) of Order (2) is not intended to cover every conceivable class of “cause”, or “matter” (as defined in Section 2 of the High Court Law) which is likely to come   PAGE| 6   to the High Court for determination. Hence Order 22 of the Rules aforesaid provide specially for applications for the prerogative orders of mandamus, Prohibition and Certiorari; and although an application in civil proceeding for any of these orders may be regarded as coming within the term “Suit” (as defined in the said law), a similar application for any of these Orders in a criminal proceeding is clearly outside the definition of that term. The High Court Law clearly envisages classes of proceedings which do not come completely within the term “Suit” (as defined in that law) and hence it defines the term “matter” and “cause” specially (Section 2 of the High Court Law Cap 61 refers); and an application made in the High Court, pursuant to the provisions of Section 32(1) of the Constitution comes within the term “cause” as defined in Section 2 aforesaid.

We must repeat once again that the High Court Law has made no special provisions for initiating in that Court “Causes” other than actions which came within the definition of the term “Suit” in Section 2 of that law; and, in those circumstances, a litigant is expected to avail himself of the provisions of Section 16 of the High Court Law, Cap. 61 aforesaid which reads:-   “………………… The jurisdiction of the High Court shall be exercised (as far as regards practice & procedure) in the manner provided by this law and in any other written law or by such rules and orders of courts as may be made pursuant to this law or any other written law, and, in default thereof in substantial conformity with the law and practice (for) observed in England in the High Court of Justice, on the thirtieth day of September 1960”.  

As noted earlier on, although Section 32(3) of the Constitution provides that rules of practice and procedure for enforcement of the Rights of the citizen under Chapter III of the Constitution should be made, these rules have not as yet been made; and as stated by this court in Fajinmi v. The Speaker, Western House of Assembly (1962) 1 All NLR 205, a citizen who approaches the court with a request to have a matter in difference between him and another determined and relief granted, where the right to determine such a matter and to grant relief in the circumstances is clearly invested in the court by a statute, should not “be driven from the judgment seat” merely on the ground that Rules of practice and procedure for approaching the court with such a request have not been made (see Fajinmi (supra) at 210 per Sir Vahe Bairamian, FJ).  

The question which arises here is what then is the procedure in England, as at “30th September, 1960” for approaching the court in order to enforce a right conferred by a statute but in respect of which no rules of practice and procedure were made. The short answer is that an Originating Notice of Motion is the most appropriate method of making an application to court in those circumstances. In the case of Re Squire Settlement it was held that “there being nothing in the Public Trustee Act 1906, or in the rules made thereunder as to how an order should be obtained under Section 4(2)(1) (of the said Act) the court had no power to make an order on summons, the proper procedure was by originating motion … …… …… …….” (Bracket and underlining supplied – see Evershed, J., – as he then was – in Re Squire’s Settlement (1946) 115 LJ., Ch. 90 at 91). In an earlier case, Warrington, J., took the same position, and the substance of his judgment was recorded thus:-   PAGE| 7   “The present application was made by petition, as it had been suggested to the Board of Trade that in as much as the application was made to the Chancery Division, and in as much as according to the old practice of the High Court of Chancery summary applications not in a suit were usually, if not universally, made by petition, ex abundanti cautela it would be safer to proceed by petition. But it was obvious that there were many cases which might arise in which the procedure by petition which was somewhat cumbersome and which involved some considerable delay, would be inappropriate and inconvenient mode of proceeding …………… His Lordship had no doubt that where an Act of Parliament said that an application might be made to the court that application might be made by motion. In the Common Law Courts before the passing of the Judicature Act, the only mode by which the court was approached otherwise than by issue of a writ was by a motion …………….. His Lordship saw no reason, and he has spoken to all the Judges of the Chancery Division except one whom he had not been able to see, and also to the Master of the Rolls and they all agreed with him that in such a case as the present, where the Act merely provided for an application but did not say in what form that application was to be made. As a matter of procedure it might be made in any way in which the court should be approached. There was no question about it that the court could be , and frequently was, approached by Originating motion ………………….” (see Re Meister Lucius & Bruning, Limited (1914) W.N.390).   There is no question that the above was the practice as at “30th September, 1960”, in the High Court of Justice in England (see Order 58 rule 3, and Order 5 rule 9(3) of the Rules of Supreme Court. The Annual Practice 1959). We note also that other reasons why the learned Judge in the court below dismissed these proceedings were (1) that the procedure by originating motion was inadequate in cases where ( as here) it was essential that pleadings should be ordered and (2) that where it is sought to challenge an Edict and have the court declare the same illegal and unconstitutional, it is necessary that the action must be one which asks for a declaratory judgment.

According to the learned Judge pleadings are very necessary in such an action and it is not enough to say that the matter should be dealt with expeditiously; “all”, says the learned Judge “should not be sacrificed on the altar of speedy hearing” (see the passage of the judgment of the lower court set out earlier on and more particularly the margins D & E). There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens, it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by their nature are cumbersome and prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the Constitution (see also Aoko v Fagbemi & Anor. (1961) 1 All NLR 400 at 403). We think the learned Judge in the lower court placed undue emphasis on the need for pleadings in matters in which the principal question is (as here) whether an Edict is illegal because it infringes the provisions  of Chapter III of the Constitution. What, after all is the principal purpose of pleadings? It is to set out clearly the facts relied on by one of the parties to a case in support of his claim so that the opposite party may not be taken by surprise.

Although it is, of course, desirable that pleadings be ordered and delivered in cases involving detailed and complicated facts and that proceedings in such cases be commenced by summons (i. e. actions initiated by Writ of Summons), it should, however, be observed, in passing, that even under the procedure by originating motion “if such a motion is by consent to be treated as the trial, points of claim may be ordered” and “the Judge may direct a motion to be set down and heard with witnesses or with leave to supplement the affidavit evidence by oral testimony” (see the notes and comments to Order 52 rule 3 Rules of the Supreme Court (England); The Annual Practice, Vol. (1) 1959 at Page 1270).

Finally, on the point made in the court below by the learned Judge that this action, being one in which it is sought to declare an Edict invalid, it ought to have been framed in the form of an action seeking a declaratory judgment, it seems to us, however, with great respect to the learned Judge that the issue here, is merely one of semantics. The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the court obtains the order he seeks; the order he ‘seeks’ may be declaratory or executory.

It is executory where the order declares the rights of the parties before the court and then proceeds to enjoin the defendant to act in a certain way. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by, or enforced against, the defendant. In the first class of order (executory) it is necessary to have the assistance of the law enforcement agencies to carry out the order, if the order of the court is disregarded; there is hardly any need for this in the second class of order (declaratory) (see Zamir on Declaratory Judgment 1962 Edition, page (1)).  

In these proceedings the parties (by their respective counsel) stipulated in the lower court that claim No (1) is “the principal claim on which the second and third are dependent; it succeeds then claims 2 and 3 may be considered but not otherwise”. Claim No (1) substantially seeks a declaratory order, its form and wording notwithstanding; and claim No. 2 is to the same effect.

There is, therefore, hardly any justification for refusing to entertain them (i. e. claims No. (1) and No. (2) on the ground that they are not, as the learned Judge in the court below maintained, “declaratory actions” (i. e. actions which ask for declaratory judgment), statements were also made, in his Ruling, by the learned Judge on the need, in cases of this nature which challenge the validity of an Edict on the ground that it offends the provisions of Section 26 and 27 of the Constitution, to plead facts which must show that the Edict in question “is not reasonably justifiable in a democratic society in the interest of public safety, public order and public security.”

These, we think with respect to the learned Judge, are matters which pertain to the merit of the case and can have no bearing on the principal question in this appeal, which is whether the procedure by originating notice of motion is appropriate in these proceedings. We have already pointed out that under Order 52 rule 3 Rules of the Supreme Court (England) in force on the “30th     day of September, 1960” it was open to the lower court, if parties before it consent (as here) to take the motion “as the trial” to order that points of claim be set out (in order words, to plead further or detailed points of claims); and the lower court may also direct

Other Citation: (1977) LCN/1897(SC)