Cunsin Nigeria Limited & Anor V. Inspecctor General of Police & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, OFR, J.C.A.
The applicants brought an application ex-parte praying inter alia for leave to enforce their fundamental rights. Leave was granted on 11th day of August, 2004.
Learned trial judge heard learned counsel for the parties and adjourned the matter for ruling. In a reserved and not well considered ruling the learned trial judge concluded as follows-
“In view of the above, the Applicant cannot adopt the documents statement and verifying affidavit used in the Ex-parte by transferring it as they ought to have been filed separately along with the motion on Notice. I hold that the application is incompetent and this court has no jurisdiction to consider the submissions of counsel. They are hereby discountenanced”
(underlining mine)
The applicants were dissatisfied with the failure, refrain or refusal of the learned trail judge to determine the application after hearing all the parties on the merit. They have now appealed to this court on 3 grounds of appeal.
In accordance with the practice of this court, appellant filed their brief which was adopted and relied upon at hearing of this appeal. Respondents neither appeared nor filed their respective briefs of argument. I went through the courts file and found that the two sets of respondents were duly served with the appellants’ brief as well as the relevant hearing notice. Appellants’ brief was served on the learned counsel for 1st – 4th respondents on 15th May, 2006 while the solicitor for 5th and 6th respondents was served on the following day, 16th May, 2006 with the said process. Hearing notices were equally served on the two sets of respondents on 25th and 29th October, 2007 respectively.
At the hearing of the appeal, learned counsel for appellants adopted and relied on the appellants’ brief of argument in which, 4 issues were identified for determination of the appeal. Learned counsel for appellants withdrew the second issue which was struckout. The remaining 3 issues were consequently renumbered serially. He also related the three issues to the grounds of appeal from which they arose. Issue 1 ground 1, while issue 2 arose from ground 2 and issue 3 from ground 3. He had nothing further to urge outside the appellant’s brief of argument.
The remaining formulations read as follows-
“(i) whether the learned trial judge was right in holding that Order 2(2)(1) (sic) of the Fundamental Rights (Enforcement Procedure) Rules 1979, is to the effect that an application under the Rules on Notice (after leave had been obtained) must be filed together with both statement of facts and (verifying the facts) and that failure to do so is fatal and will render the Application incompetent.
(ii) Whether the reamed trial judge did not misdirect herself in the consideration of the case of OYEWOLE v SHEHU (1995) 8 NWLR (Pt.414) at 480 when she held that her court lacked jurisdiction to consider the submissions of counsel to the Applicants due to the fact that the applicants did not file the statement of facts and verify affidavit together along side the Motion on Notice.
(iii) Whether the learned trial judge was right when she raised suo motu the issue of non-filing of statement and verifying affidavit without inviting counsel on both sides to address her on same and subsequently held that the application was incompetent and that the court did not have jurisdiction.”
The only issue calling for consideration and determination in this appeal is whether the appellants are required to support their notice of motion and summons with fresh statement and affidavit of facts.
In arguing the first issue, the learned counsel for appellants, in the appellants’ brief, read the provisions of Order 1 rule 2 (3) and Order 2 rule 1(3) and rule 2(3) of the fundamental Rights (Enforcement Procedure) rules 1979. Learned counsel then submitted that the learned trial Judge erred in holding that Order 2 rule 2(1) of the Rules is to the effect that an application under the rules must be filed after leave had been obtained together with the statement of facts and verifying affidavit. Learned counsel further contended in the brief that the rule did not require that a verifying affidavit and statement of facts should be attached to the motion on notice rather it states that copies of the statement in support of the motion for leave must be served with the motion on notice or summons. Learned counsel then submitted that the learned trial judge imported a non-existence word into the relevant law to give it a misconceived result.
It is a settled principle of our jurisdiction that where a statute prescribes a procedure for seeking a remedy and there is no doubt from the language used in the statute that should be the only procedure available the court will not allow any departure from the procedure. See Abia State University v. Anyabie (1990) 3 NWLR (pt.439) 660. The appellant’s grouse is that of a breach of their fundamental right. They must, therefore observe or comply with the procedure prescribed for seeking the constitutionally provided remedy contained in the Fundamental Rights (Enforcement Procedure) Rules, 1979.
It is not in dispute that the appellant’s brought their action under the Fundamental Rights (Enforcement Procedure) Rules as directed. But the contention is that the application was not brought in accordance with the spirit of the said Rules.
The provisions of the Rules pertinent to the resolution of this appeal are contained in Order 1 rule 2(3) as well as Order 2 rule2(1) and (2). It is, therefore, apt, at this stage, to recite the provisions of the three sub-rules considered to be relevant to the resolution of the narrow issue in this appeal. Order 1 rule 2(3) of the Rules provides as follows-
“(3) An application for such leave must be made ex parte to the appropriate court and must be supported by a statement setting out the name and the description of the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on.”
While Order 2 rule 2(1) and (2) enact thus-
“2-(1) Copies of the statement in support of the application for leave under Order 1 rule 2(3) must be served with the 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.
(2) The court or judge may, on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of an affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits he must give notice of his intention and of any proposed amendment of his statement to every other party, and must supply to every such other party, copies of such further affidavits.”
There is merit in the submissions of the learned counsel for appellants respectfully that the learned trial judge was in a serious error in holding that Order 2 rule 2 of the Rules is to the effect that the application made under the Rules on notice after leave is sought and granted must be filed with the statement of facts as well as verifying affidavit. A careful reading of the rule did not provide that the statement in support of the application for leave made under Order 1 rule 2(3) should be filed and served with the notice of motion or summons. Rather it states, with respect, that copies of the statement of facts in support of application for leave brought ex parte under Order 2 rule 2(3) of the Rules has to be served along with motion on notice or summons. The learned trial judge’s reading of the word “serve” for support led to a grievous error and the same is misconceived. The provision of Order 2 rule 2(1) provides that the statement of facts and the verifying affidavit in support of the application for leave must be served together with motion on notice after leave had been sought and granted. The wordings of the rule are clear and unambiguous, It should be given its literal, natural and grammatical meaning except it will result in absurdity. It is only when the result will be startling or lead to absurdity or injustice of ambiguity that the court will turn elsewhere for assistance.
Mobil Oil (Nigeria) Ltd vs Federal Board of Inland Revenue (1997) 3 SC 53, 74; Nablan vs Nablan (1967) 1 All NLR 47.
It envisages that sufficient copies must be filed along with the motion ex-parte for leave out of which the bailiff or applicant would serve on the respondents when the motion on notice is being served on them. Any other interpretation will lead to absurdity. It will sound awkward or absurd if copies of the statement of facts and verifying affidavit already filed along with the application for leave were to be refilled or filed again when the motion on notice is being filed after leave had been granted. The necessity to use the same set of statement of facts as well as verifying affidavit is further emphasized in Order 2 rule 2(1) which inter alia states that-
“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”
I am strengthened or encouraged in the view that there should be no further filing of copies of the verifying affidavits and statement of facts by the provisions of sub-rule (1) of rule 2 of Order 2 peremptorily excluding the necessity to the further statement of fact and verifying affidavit. The purpose of the requirement is to forestall a situation whereby an applicant seeks to secure enforcement of his right on a statement of facts and verifying affidavit other than those he used to obtain leave when the respondent would not be in court.
Learned trial judge, I agree with the respondents, did not carefully note the distinction between the provisions of the Rules providing for application ex parte for leave and those providing for filing motion on notice or summons. The former requires that statement of facts and verifying affidavit should support the application while the latter merely demands that the statement of facts and verifying affidavit in support of the earlier application should only be served on the respondent(s); thus envisaging that the statement of facts and the verifying affidavit, already filed, should be served.
Learned trial judge relied on the cases of Oyewole vs Shehu (1999) 8 NWLR (Pt 414) 480, 494 – 495 (correct citation is (1995) 8 NWLR (Pt 414) 480, 494 – 495,) and Wema Bank vs Jinfot Nigeria (1978) 4 FRCR 19 to the effect that verifying affidavit  brought under Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 must be a condition precedent to a grant of leave and is a prima facie evidence of the statement in the application. Firstly the case of Wema Bank vs Jinfot Nigeria (1978) FRCR 19 cannot be authority for the present determination simply because the rule calling for interpretation here had not been made when that case was decided. In other words Wema Bank v Janifot Nigeria (supra) was decided before the 1979 Rules were made and there is nothing on record showing that it was determine on a legislation which is in pari materia with the Rules under consideration, Secondly the issue calling for determination in the instant appeal is different from what was decided in the two cases relied upon by the learned trial judge.
The very narrow issue calling for determination, in the instant appeal, is whether an applicant who had been granted leave to enforce his fundamental right is obliged to support the notice of motion or summons with a fresh statement of facts and verifying affidavit. Or he could rely on statement of facts and verifying affidavit in support of the application for leave. I am of respectful view that the clear wording of sub-rule (1) of rule 2 of Order 2 is sacrosanct and must be given its full force. It is reproduced once more thus-
“2-(1) Copies of the statement in support of the application for leave under order 1 rule 2(3) must be served with the notice of motion or summons under rule 1 (3) of order 2 and subject to paragraph (2) of the rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and reliefs set out in the said statement.”
(underlining mine)
The statement referred to as the “said statement” respectfully is, of course, the statement in support of application for leave under order 1 rule 2(3) of the Rules. That being the case it is clear that the applicants, appellants herein, are not required to support their notice of motion or summons with further statement and affidavits verifying the facts. All that is required of them is service of copies of the statement and affidavit in support of the application for leave.
The only instance the applicant could file a fresh statement or further affidavit of facts is when leave is sought and obtained from the court for amendment of their statement under the provisions of order 2 rule 2(2) of the Rules. This is not case in the instant appeal.
It is not the compliant of the respondents that statement and affidavit verifying the facts in support of the application ex parte for leave to enforce the rights of applicants were not served on them. The respondents’ complaint in the lower court which learned trial judge ignored was to the effect that the notice of motion was brought before leave was obtained. Indeed, that it was filed simultaneously with application for leave. Learned trial judge was equally of the same view in her judgment. But the objection of the respondents which was duly responded to is unfounded. The said objection is baseless because it is not supported by evidence. It flies on the face of or not borne out by the material before the court. The notice of motion in its introductory part refutes the assertion of both the court and the respondents that the application on notice was made prior to granting of the leave to enforce their right. The relevant potion is recited here under-
“TAKE NOTICE, that pursuant to the leave of the Honourable Court at Ikoyi, given the 11th day of August, 2004, the Honourable court shall be moved on ………. the day of 2004 at the hour of 9’oclock in the forenoon or so soon thereafter as counsel for the Applicants may be heard for the following relief (being reliefs sought in the statement in support of the motion EX-parte):”
(underlining mine)
It is not disputed that the order granting leave was made on 11th August, 2004.
The order of the court contained at pages 16, 17 and 18 of the record of appeal particularly page 18 supported the assertion that it was properly filed. The question arising from the respondent’s allegation which they neglected or failed to explain is how the appellants acquired the knowledge that the leave would be granted on 11th August, 2004 before the court so ordered.
The court determined the issue that the motion on notice ought to have been supported by a statement and affidavit verifying the facts other than those in support of the application for leave suo motu.
It is not proper for the learned trial judge to raise and determined the issue without inviting parties to address the court on it. Undoubtedly, a court can raise an issue suo motu but must be done judicially so that justice would be done to all the parties, In the case African Continental Bank Ltd vs Crestline Services Ltd (1991) 6 NWLR (Pt 197) 301, 312 cited in the appellants’ brief the court said-
“While there is no doubt that a court has power to raise an issue suo motu in respect of any matter before it, that power must be exercised judicially in respect of matters relevant and necessary for the determination of the dispute before the court.”
In the instant case, the learned trial judge improperly raised the point, considered and determined it without hearing the parties, He was consequently in breach of the rights of the appellants to fair hearing. See Oje v Babalola (1991) 4 NWLR (Pt 185) 267; Shehu v Bronifield Justices (1964) 2 QB 573, 578; Ojo – Osagie v Adonri (1994) 6 NWLR (Pt.349) 131, 154-5 Udogu vs Egwatu (1994) 3 NWLR (Pt 330) 120, 127 where this court held that a court which raises an issue suo motu and decides it unilaterally does so without jurisdiction. See also Adejumo vs David Hughes and Co Ltd (1989) 5 NWLR (Pt.120) 146.
Learned trial judge rightly raised the issue suo motu but the matter must be decided judicially and judiciously by inviting the parties to address on the point. If she had done so she would have had the benefit of the submissions of learned counsel for both sides and would probably have avoided the error into which she fell. The appellants substantially complied with the relevant provisions of the Rules when they served the respondents with copies of the statement as were as affidavit verifying the facts.
The only issue arising in this appeal is resolved in favour of the Appellants. The appeal therefore succeeds and is allowed. The decision of the learned trial judge, Ogie, J., is hereby set aside. The matter is remitted to the Chief judge of the Federal High Court to be heard on the merit by a judge of the court other than Ogie, J.
There is order as to costs assessed at N=30,000.00 in favour of appellant and against each set of respondents.
Other Citations: (2008)LCN/2622(CA)
