Chuba Chukwuogor & Ors V. Chukwuma Chukwuogor & Anor (2005)
LawGlobal-Hub Lead Judgment Report
OMOKRI, J.C.A.
This is an appeal against the ruling of Justice M.O. Eneji of the High Court of Cross River State, Ikom Judicial Division, delivered on 13/8/2003 striking out the application of the appellants to enforce their fundamental rights.
The facts, which led to this case on appeal, were that on or about the 27/3/01, the appellants, as applicants, filed an application ex parte for leave to enforce their fundamental rights. Leave was accordingly granted by Obasse J. on 28/3/01 and adjourned the matter to the 10/4/01 for the hearing of the motion on notice. The appellants filed the motion on notice with the accompanying statement and verifying affidavit on 3/4/01. Upon being served with the motion on notice, the 1st respondent filed a notice of preliminary objection dated 28/5/01 challenging the bearing of the appellants’ application for the enforcement of their fundamental rights. For reasons which are not germane or relevant to this appeal. the arguments on the objection were not heard until the 26/3/03 and concluded on 8/5/03 by Hon. justice M. O. Eneji who took over from Justice J. U. Obasse.
At the conclusion of arguments on the preliminary objection, the matter was adjourned for ruling to the 24/6/03. The ruling was not ready on 24/6/03 and it was further adjourned to 13/8/03. On 13/8/03, the learned trial Judge delivered the ruling in which he upheld the objection of the 1st respondent and struck out the appellants’ motion for the enforcement of their fundamental rights on the ground that they did not personally file affidavit of service.
Aggrieved by the ruling of the trial court striking out their motion prematurely, the appellants appealed to this court on 22/8/03 on three grounds. The appellants in their brief dated 11/11/04 and filed on 26/11/04, distilled 2 issues for determination from the 3 grounds of appeal namely:
- Whether the learned trial Judge was right in his interpretation and application of the provisions of Order 2 rules (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules in striking out the appellants’ application for the enforcement of their fundamental rights because they did not personally file affidavit of service?
- Whether the learned trial Judge’s refusal to act on the proof of service in his file by both the bailiff of the High Court and counsel to the appellants, which service was not disputed by the respondents, is proper in law.?”
The 1st respondent formulated a single issue for determination in his brief of argument dated 3/2/05 and filed 28/2/05 with leave of the court granted on 3/5/05 and are deemed properly filed. The issue for determination is as follows:
“‘Whether the learned trial Judge was right in striking out the appellants’ application for failure to comply with express and mandatory rules regulating the enforcement of fundamental rights?”
The 2nd respondent in his brief filed on 17/8/05 with leave of this court and deemed properly filed by this court on 13/9/05. The 2nd respondent adopted the two issues for determination formulated by the appellants.
Counsel for the parties all adopted and relied on their respective briefs at the hearing of the appeal before this court. I have carefully considered the issues for determination formulated by the parties in this appeal and in my opinion the two issues formulated by the appellants and adopted by the 2nd respondent over-lap and they ought to be taken together. Indeed, the appellants and the 2nd respondent actually argued the two issues together in their respective briefs. In my view, the lone issue for determination formulated by the 1st respondent in his brief is more concise and comprehensive. I shall therefore adopt the lone issue raised in the 1st respondent’s brief for the purpose of determining this appeal.
In arguing the 2 issues formulated by the appellants together, Mr. Ukweni submitted that the court below was wrong when it held that it is mandatory for the applicant for the enforcement of fundamental rights to personally serve the motion or summons and to personally file affidavit of service under the provisions of Order 2 rule 1 (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules. It was submitted that nowhere is it provided in the said rules that the applicant must personally serve the motion or summons on all the respondents or persons listed in the motion and that the applicant must personally file an affidavit of service. It is therefore wrong to read or to import into a statute what is not there as that will do violence to the plain meaning of the statute. He referred to U.I.T.H. v. Akilo (2000) FWLR (Pt. 28) 2286 at 2294 – 2295, (2001) 4 NWLR (Pt. 703) 246 and Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1.
Counsel submitted that the interpretation given by the learned trial court is narrow and technical and this approach to interpretation of statutes is what the Supreme Court and this court have variously condemned.
He also submitted that the Fundamental Rights (Enforcement Procedure) Rules made no provision on the mode of service of processes but the practice of our courts, which is known and applied on daily basis is that service of court processes, particularly originating processes, is the responsibility of the sheriff, deputy sheriff, bailiff, officer of the court or any other person appointed by the court or Judge in chambers to do so. See Order 12 of the High Court of Cross River State (Civil Procedure) Rules 1987 and Pavex Co. (Nig.) Ltd. v. I.B.W.A. Ltd. (2000) FWLR (Pt. 26) 1891, (2000) 7 NWLR (Pt.663) 105; Rector, Kana State Polytechnic v. Dan’agundi (2002) FWLR (Pt. 127) 1058 at 1067. Mr. Ukweni pointed out that there were the affidavits of service filed by the bailiff of the trial court on 26/6/02 and that filed by Bassey Okim on 9/11/01.
Counsel concluded that it was wrong for the court below to strike out the appellants’ application because they did not file the affidavit of service. He was of the view that the court should, have pursuant to the provisions of Order 2 rule 1(5) of the rules, adjourned the hearing on such terms, if any, as it or he may direct in order that the motion or summons may be served on that person.
Mr. Matthew Ojua, for the 1st respondent, submitted that the applicant must comply with mandatory rules of court particularly in fundamental rights enforcement matters. Adherence to the rules help in the fair and quick dispensation of justice. He referred to Solanke v. Sowefun (1974) 1 SC 141 at 150. He also referred to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and submitted that it is mandatory that an affidavit of service must be filed before the motion is listed for hearing and such affidavit shall be before the Judge on the hearing of the motion and the duty of filing the affidavit of service is on the applicant and not on the court bailiff. He relied In Re Appolos Udo (1987) 4 NWLR (Pt. 63) 120 at 126; Onyemaizu v. Ojiakor (2000) 6 NWLR (Pt. 659) 25. Counsel pointed out that the affidavit filed by the court bailiff is not in the record of appeal and the appellants have neither challenged the record nor have they brought an application for additional records to make the said affidavit part of the record of appeal. Counsel also pointed out that the phantom affidavit of service was allegedly filed on 26/6/02, which is 13 months after the objection was filed and 17 months after appellants’ counsel filed an affidavit of service and 14 months after the date the matter was listed for hearing.
Mr. Ojua also submitted that the appellants’ contention that the trial Judge failed to advert his mind to Order 2 rule 1(5) of the Fundamental Rights (Enforcement Procedure) Rules for the purpose of granting an adjournment holds no water since the appellants did not rely on the said provision to pray for an adjournment before the court below.
Mr. Ikona, Assistant Director of Civil Litigation in the Ministry of Justice of Cross River State made similar submissions and relied on the same cases as the 1st respondent. So it will be unnecessarily prolix to repeat same presently.
The bone of contention in this appeal is very narrow and straightforward. It is predicated on the interpretation of the provisions of Order 2 rules 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, therefore, it is reasonable and necessary to begin with a careful consideration of the rules. Order 2 rules (1) and (4) 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.”
One of the cardinal principles of interpretation is to give the words of a statute, when clear and unambiguous, their grammatical and ordinary meaning. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) page 546; Ahmadu v. Gov. Kogi State (2002) 3 NWLR (Pt. 755) 502 and Fawehinmi v. I-G of Police (2002) 7 NWLR (Pt. 767) 606.
The words used in Order 2 rule 1 (4) of the rules stated above, are clear and unambiguous. The use of the word “must” twice and the word “shall” in the rule is indicative of the fact that it is mandatory.
The word must is a word of absolute obligation. It is not merely directory, rather, it is naturally imperative and admits of no discretion.
See: Ogwuche v. Mba (1994) 4 NWLR (Pt. 336) 75 at 86. From the foregoing it is glaringly clear that it is mandatory that an affidavit of service must be filed before the motion referred to is listed for hearing.
Secondly, if any person who ought to have been served under paragraph (3) of the rule has not been served, the affidavit must state the fact and the reason why service has not been affected. Thirdly, such affidavit shall be before the Judge on hearing of the motion. The stipulations above are fundamental preconditions to the hearing of an application under the aforesaid rules. Failure to comply with the said rules is fatal and it robs the court of jurisdiction to hear the application. Therefore, failure to fulfill the preconditions prescribed in Order 2 rule 1 (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules is not a mere procedural irregularity but it impacts upon the competence of the trial court to entertain the action, which was initiated without following the due process of law.
The appellants also contended that the rule did not specifically say that the applicant must serve the summons or motion and file an affidavit of service and that it will be wrong to read into the rules what is not there. They contended further that it will be contrary to the usual practice of courts, which is, for the bailiffs to serve court processes and file proofs of service. But I observe that the appellants were unable to refer to any legal authority to support their submission.
I agree with the respondents that the provision of Order 2 rules 1(3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules has been considered judicially in a plethora of cases. Firstly, in Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635. Ubaezonu, JCA, stated as follows:
“The Fundamental Rights (Enforcement Procedure) Rules are rules made by the Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his right under Chapter IV of the said Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. It is therefore clearly wrong for the lower court to fall back to the High court rules and purport to derive its power to extend time therefrom. ”
The above decision is valid and subsisting and I see no good reason to depart from it.
Where by a rule of court, the doing of an act is a condition precedent to the hearing of a case, such rule must be strictly followed and obeyed. In view of the decision in Ezeadukwa V. Maduka (supra) it is clear that the submission that the court could fall back to the provisions of Order 12 of the High Court of Cross River State (Civil Procedure) Rules 1987, which provides for the court official to deal with the service of court process, is of no moment. It is clear that the Fundamental Rights (Enforcement Procedure) Rules are special rules made for the enforcement of special rights guaranteed by the Constitution. The rules did not make provision for importation of rules of any other court to complement or supplement them.
Furthermore, In Re: Udo (supra) at page 124, counsel for the appellants in the case, submitted that the Fundamental Rights (Enforcement Procedure) Rules 1979 made no provision as to who should effect service of process on the parties, therefore in the absence of such procedure or provision, the High Court Rules should apply.
Olatawura, JCA, (as he then was) held at page 136 that the contents of the affidavit envisaged by Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules must be sworn to and filed by the applicant and not the court official. His Lordship referred to Order 2 rule 1(4) of the said rules and stated that:
” … if any person who ought to have been served in paragraph (3) has not been served the affidavit must state that fact and the reason why service has not been effected.” … that is not the duty of the officer of the court (apparently, in this case a Bailiff) who should state the reason in the affidavit. The affidavit must be deposed to by the applicant in this case the appellant or any person who has his authority to do so. To construe otherwise is to make an officer of the court who ordinarily is to report process of service to state reasons why process of court has not been served. It is therefore my view that the affidavit must be filed and sworn to by the applicant before the motion can be heard or listed for hearing.”
It is therefore very clear to me that there is no doubt that the content of the affidavit envisaged in Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules must be supplied by the applicant or deposed to by him. Further still, whereas the provisions of Order 12 of the Cross River State High Court (Civil Procedure) Rules as to who should serve processes of court, provides for “a certificate” of service signed by such bailiff or other officer, “an affidavit” is required under Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and not a certificate of service.
Moreover, the content of an affidavit under Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules is materially different from a certificate of service envisaged in Order 12 of the Cross River State High Court (Civil Procedure) Rules. The conclusion I reach therefore is that the provisions of Order 12 of the Cross River State High Court (Civil Procedure) Rule has no relevance to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules.
The appellants in this appeal being applicants at the court below ought to have complied fully with the clear, simple and mandatory provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules.
I have also given anxious consideration to the submission of Mr. Ukweni at page 11 paragraph 4.16 of the appellants’ brief where he said:
“My Lord it is our submission that to allow the decision on appeal to stand or to apply the decisions in The State v. C. O. P. (in Re Appollos) (1987) 4 NWLR (Pt. 63) 31 and Onyemaizu v. Ojiakor (2000) 6 NWLR (Pt. 659) 25 cited to the learned trial Judge and which he relied upon, will amount to reducing the rules of practice to mere technical rules.”
That submission is not supported by law. 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 case. In Onyemizu v. Ojiakor (supra) Niki Tobi, JCA (as he then was) stated at page 47 (while considering a similar rule) that:
“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 ….. ”
In law, rules are not only made to be obeyed but equally made to guide the orderliness of conduct of cases in court. They form the basis of a fair trial. See Adediran & Ors. v. Inspector (1991) 6 LRCN 2041.
Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do so such thing renders the subsequent act void. In Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 422, the Supreme Court held that:
‘There is non-compliance with due process of law when the procedural requirements have not been complied with, or the preconditions 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.”
See also FCMB v. Abiola & Sons Bottling Co. Ltd. (1991) 1 NWLR (Pt. 165) 14. The non-compliance with the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules renders the application filed by the appellant a nullity. It is not only bad but also incurably bad. No matter how well conducted and decided, the defect is extrinsic to the adjudication. See Madukolu & Ors. v. Nkemdilim & Ors. (1962) All NLR (Pt. 2) 581 at 590, (1962) 2 SCNLR 341 and Odua Investment company Ltd. v. Talabi (1997) 52 LRCN 2109, (1997) 10 NWLR (Pt.523) 1.
From the above, it is unarguable that non-compliance with the mandatory provisions of Order 2 rule 1(4) of the said rules is not a mere technicality. It is a fundamental vice that affected the root of the application. In Re Udo (supra), Olatawura, JCA, (as he then was) at page 127 of the report, stated clearly that failure to file the affidavit by the applicant affects the hearing of the application and the application cannot be said to be properly before the court.
The appellants also submitted that rather than striking out the applicants’ application, the trial Judge should have had recourse to the provisions of Order 2 rule 1 (5) of the rules and adjourned the matter and direct that those who have not been served be served.
In the first place, the appellants’ submission is of no moment and holds no water since the appellants did not rely on the said provision to apply to the court below for an adjournment pursuant to the provisions of Order 2 rule 1 (5). As the issue was not raised for the consideration of the court below, it made no finding on it.
Therefore the appellants cannot now raise the issue. An appeal is against the decision of the court below and a challenge to the validity of that decision. More importantly an appeal is always against the ratio of the trial court’s decision and can never be at large. See Saraki v. Kotoye (1997) 3 NSCC 331 at 355, (1992) 9 NWLR (Pt. 264) 156. Oba v. Egberongbe (1998) 8 NWLR (Pt. 615) 485 at 489. Moreover, for the appellants to take the benefit of Order 2 rule 1 (5) of the Fundamental Rights (Enforcement Procedure) Rules, they must have complied fully with the provisions of Order 2 rule 1(4) of the rules.
This now brings me to another related issue. The appellants argued that their counsel, Bassey Okim Esq., filed an affidavit of service on 9/11/01 in the application in compliance with the provisions of Order 2 rule 1 (4) of the said rules. It is clear from pages 7 and 8 of the record of proceedings that the order of the court granting leave to the appellants to enforce their fundamental rights slated the motion on notice for hearing on 10/4/01. The affidavit of service filed by Bassey Okim Esq. on 9/11/01 for the appellants was filed 7 months after the matter was entered for hearing. It is therefore clear to me that the said affidavit was filed hopelessly out of time prescribed under Order 2 rule 1 (4) of the Rules.
Secondly, the other affidavit allegedly filed by the bailiff of court below on 26/6/02 is not part of the record of proceedings in this appeal. The appellants have not challenged the records and neither have they brought an application for additional records to make the said affidavit part of the record of appeal. In the circumstances, the appellants should hold their peace and abide with the record of proceedings as produced and presented before the court.
The court and all the parties in this appeal are bound by the record.
That notwithstanding, the phantom affidavit of service allegedly filed on 26/6/02 was filed 14 months after the date the application before the court below was listed for hearing on 10/4/01. Whichever way one looks at it, the appellants’ purported affidavit of service were hopelessly out of time. The conclusion I reach is that the appellants did not comply with the mandatory provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules. Rules of court are made to be followed. They regulate matters in court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice. See Solanke v. Somefun (1974) 1 SC 141 at 151. See also Appolos Udo (supra) where the court held as follows:
“Where a rule of court provides for the doing 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 made to be obeyed.”
In the interpretation of statutes, a court is obliged to adhere strictly to the interpretation only intended by the legislature even if such strict construction appears punitive to the litigant. Courts do not administer justice in the abstract and the justice administered by the courts is justice in accordance with the law. It is only by the orderly administration of law and obedience to the rules that legal justice can be attained. See Alale v. Olu (2001) 7 NWLR (Pt. 711) 119 at 127; Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt. 48) 105.
From the foregoing, I answer the lone issue for determination in the affirmative and in favour of the respondents. This appeal is devoid of any merit. It deserves to fail and I hereby dismiss it. I affirm the ruling of the court below with costs assessed and fixed at N10,000.00 in favour of the respondents.
Other Citations: (2005)LCN/1852(CA)
