Fidelity Bank Plc. V. Chief Andrew Monye & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

In the Federal High Court, (trial court) holden at Lagos, in the Lagos Judicial Division, the 1st respondent, herein, as applicant, filed an Ex-parte motion, pursuant to Order 1 Rules 2(2) and 2(3) and Order 4 of the Fundamental Right Enforcement Rules, 1979 (FRER, 79) asking for the following reliefs:

i. An order granting leave to Chief Andrew Monye, the applicant to enforce his fundamental rights

ii. An order restraining the Presidential Task Force on Trade Malpractices and FSB International Bank Plc, from arresting, detaining, threatening with arrest, harassment and or arrest, and detention of the applicant pending the determination of the application to be filed pursuant to leave of the court.

The 1st respondent in compliance with the requirements of the FRER 79, also filed a statement wherein he sought for the following reliefs:

i. “Declaration that the arrest and false imprisonment of Chief Andrew Monye on 8th March, 1996 by the Presidential Task Force on Trade Malpractices at the instance of FSB International Bank Plc is illegal and unconstitutional and a breach of the applicant’s liberty.

ii. An order of injunction, restraining the Presidential Task Force on Trade Malpractices from arresting, detaining Chief Andrew Monye on the complaint of FSB International Bank Plc on a case of debt recovery.

iii. N5 Million damages against FSB International Bank Plc for unlawful arrest and false imprisonment of Chief Andrew Monye on 8th March, 1996.”

The Motion-Exparte was moved on the 2/4/96. The Learned trial Judge, Nwaogwugwu, J. granted the reliefs sought and granted the 1st respondent leave to enforce his fundamental rights. A further order was granted that the Motion on Notice was adjourned to the 17th of April, 1996.

On the 27th of May, 1996, pursuant to 1st respondent’s application, the Attorney-General-of the Federation was joined as 3rd respondent by order of the trial court.

On the 20th of May, 1997 the motion on notice was heard and a ruling delivered. In the said ruling the learned trial judge, Gumel, J, decided that the whole proceedings was a nullity based on the fact that after having granted leave to the 1st respondent to enforce his fundamental rights, the motion on notice was adjourned to 17th day of April, 1996, that is to say, a day more than the 14 day period provided for in the Rules. Gumel, J, held that it was unnecessary to consider the 1st respondent’s complaint in the motion on notice i.e. whether the 1st respondent’s right under section 32 of the Constitution had been infringed upon by the appellant, 2nd and 3rd respondents. His Lordship accordingly struck out the suit in its entirety.

Dissatisfied, the 1st respondent lodged an appeal to the Court of Appeal (court below) Lagos Division. The court below, after having considered the whole appeal, allowed the appeal and directed, as a result, that the 1st respondent’s motion on notice be heard by another judge of the Federal High Court.

The appellant herein, dissatisfied with the court below’s decision filed his Notice of Appeal to this court.

Briefs of argument were filed and exchanged. Each of the parties adopted its/his respective brief on the hearing date.

Learned counsel for the appellant distilled the following issue for determination, viz:

“Whether the Court of Appeal is right in holding that the provisions of Order 2 Rule 2 of the Fundamental Right (Enforcement Procedure) Rules1979 (which requires the return date for Motion on Notice to be fixed within fourteen days after leave has been granted) cannot be so interpreted in mandatory terms in this case as such interpretation will lead to injustice.”

Learned counsel for the 1st respondent formulated one issue which reads as follows:

“Whether the Court of Appeal is right in holding that the provisions of Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 cannot be interpreted as mandatory in this case as such interpretation will lead to injustice.”

Learned counsel for the 2nd and 3rd respondents formulated one issue, thus:

“in the peculiar circumstance of this case, whether the court of appeal was not right in holding that the provision of Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 cannot be interpreted in mandatory terms of which will lead to injustice. (Grounds 1 & 2).”

In his submission in the brief filed, the learned counsel for the appellant argued that in an action for the enforcement of fundamental rights brought pursuant to the FRER 79, the return date for the hearing of the motion on Notice is CRUCIAL. It must be within 14 days from the date the leave to enforce the fundamental right was granted. This is provided by Order 2 Rule (2) of the Rules. Anything more than the statutory stipulation of 14 days invalidates the whole proceedings. Learned counsel reproduced the provision of Order 2 Rule (2) of the FRER 79.

Learned counsel argued further that the motion ex-parte in the instant case was argued before the trial court on the 2nd of April, 1996 and leave was granted to the 1st respondent on that day to enforce his fundamental right. The return date for the motion on notice to be heard was fixed for the 17th of April, 1996, a period of more than 14 days of the FRER 79. He submitted that it was out of time and the proceedings were held to be a nullity on the authority of Ogwuche v. Mba (1994) 4 NWLR (Pt.336) 75. Learned counsel submitted further that the word “must’ used in Order 2 R 2 is to the effect that the motion or summons must be entered for hearing for hearing within 14 days after leave has been granted, is mandatory and effect must be given to it. It is not merely directory. It admits of no discretion. He cited Odjer’s Construction of Deeds and Statutes, 5th ed. Page 377; Blacks Law Dictionary 6th ed.; Okorie v. Udom (1960) SCNLR 326; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 279; Anibi v. Shotimehin (1993) 3 NWLR (Pt.282) 461 at 473 – Further submissions for the appellant are that: the provisions of Order 2 R 2 of FRER 79 are unambiguous, clear and plain, requiring no any (other) rule of Construction, relying on the case of Kanada v. Gov. of Kaduna State (1986) 4 NWLR (Pt.35) 365; that the period or number of days in excess of the 14 days as required by Order 2 Rule 2 of the FRER 79, is immaterial and once there is a failure to comply with the requirement of that statute, it is a fundamental vice and not a mere irregularity. The case of Kolawole v. Alberto (1989) NWLR (Pt.98) 382: Ibrahim v. INEC (1999) 8 NWLR (Pt.614) 334; were cited. Finally, this court is urged to allow the appeal.

On his part, learned counsel for the 1st respondent after having quoted the provision of Order 2 of FRER 79 (summarized) submission: that the operative words in Order 2 R 2 of FRER are, “MUST BE ENTERED”. Learned counsel quoted further, the relevant parts of the decisions on the subject matter as held by the trial and the Appeal Courts. That the approach adopted by the court below conforms to all known rules of interpretation of statutes and rules of court. That the FRER is a special rule made to guide the courts in the expeditious disposal of matters touching on fundamental rights. To stick to the interpretation of the word “must” as mandatory as submitted by the learned counsel for the appellant is an invitation to this court to toe a line that would defeat and stultify the delivery of justice which would occasion grave injustice to the 1st respondent.

The main submissions of learned counsel for the 2nd and 3rd respondents, after having set out the provisions of Order 2 R (2) of FRER are that in construing the rule, it is imperative to consider the purpose of the provision and the mischief it seeks to prevent. He cited the case of Agbetoba v. Lagos State Exco (1991) 6 SCNJ at page 22; Mobil v. F.B.I.R. (1977) 3 SC 53. Learned counsel argued that in this case, the mischief sought to be cured is the delay normally caused by the common law rules as to ensure that all proceedings touching on the enforcement of fundamental rights are expeditiously heard and disposed of. By this line of thought, he argued, the word “MUST” ought to have been given an interpretation of mandatoriness, hence, the trial court ought to have entered the case for hearing within (14) days after the grant of the leave for the 1st respondent to enforce his fundamental right. The adjournment for hearing the Motion on Notice by the trial court on 2/4/96 has satisfied the provisions of Order 2 R (2) of FRER and that would mean that the trial court was prevented from granting the leave and put away the file without fixing the application for hearing. The lower court, he argued further, was right in its decision to have set aside the judgment of the trial court. Learned counsel submitted further that although allowing the appellant’s appeal would be in the best interest of the 2nd and 3rd respondents but, that would not be in the interest of justice to the society and it will not be justice in accordance with law upon due consideration of the peculiar circumstance of this case where there was no fault on the part of the applicant. It is trite, learned counsel submitted, that once a litigant has properly filed his claim as required by law and fully paid his fees, his responsibility, ceases. The omission of the Judge or court officials to play their pad is not his business and will not affect his case. Learned counsel cited several cases in support, including Famfa Oil Ltd. v. A-G Federation (2003) 18 NWLR (Pt.852) 453 at 467 A-C.

Learned counsel urged that this is a proper case to dismiss the appeal.

The provision of Order 2 R (2) of the FERER, 79 states as follows:

“The motion or summons must be entered for hearing within fourteen days after such leave has been granted.”

Before invoking the above Order of FRER, the applicant, pursuant to Order 1 Rules (2); (3) and (4) of the FRER, filed his application EX-PARTE, 64 the trial court, praying for the following reliefs:

1) “An Order granting leave to Chief Andrew Monye the applicant to enforce his Fundamental Rights

2) An Order restraining the Presidential Task Force on Trade Malpractices and FSB International Bank Plc from arresting, detaining, threatening with arrest, harassment and or the arrest and detention of the applicant pending the determination of application to be filed pursuant to leave of this court.”

After having the motion Ex-parte moved before his court, the learned trial judge Nwaogwugwu, J, granted on the 2nd day of April, 1996, the reliefs sought by the applicant. He subsequently adjourned on same date the motion on Notice to the 17th day of April, 1996 for hearing. From the 2nd of April, 1996 to 17th April, 1996, was a period of fifteen (15) days after the grant of leave i.e. reckoning from 3rd to 17th but including the 17th day. Thus, from the outset, the learned trial judge Nwaogwugwu, did not fix the Motion on Notice for hearing within the fourteen (14) days laid down by Order 2 R (2) of FRER. That was the reason why the Ruling of the trial court of 15th September, 1997, declared the entire proceedings that had been conducted after leave was granted, a nullity and the suit was accordingly struck out. Reliance was placed on the case of Ogwuche v. Mba (1994) 4 NWLR (Pt.336) 75 at 85.

Now, what is the best interpretation to be given to the provision of Order 2 R (2) of the FRER

Learned counsel for the appellant is on the side of mandatoriness, equating the word “MUST” used in the provision, to the word “SHALL”, as in any legislation. He supported his submission with decided cases. Learned counsel for the 1st respondent argued that the word “MUST” in Order 2 R (2) of the FRER ought to be construed as directory and not mandatory.

The trial court as pointed above and as per the decision delivered by Gumel, J, (as he then was) following the decision in the case of Ogwuche v. Mba (supra), interpreted the word, “MUST”, used in the provision of Order 2 (i) of FRER, as follows:

The Word “MUST” appearing in the provision is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice… it admits no discretion.”

The court below, per Oguntade, JCA (as he then was), posed the following view:

“There is no doubt that it is not always that a court of law would interpret the word ‘shall’ or ‘must’ as mandatory. The court must look at the con in which the word is used to arrive at an interpretation which best meets the intention of the legislature or the lawgiver…

In the interpretation of a rule of court, the necessity to interpret the word ‘shall’ or ‘must’ as mandatory is not often compelling. This is because Rules of court are made as an aid to the dispensation of Justice. The Court should not readily adopt an interpretation which defeats or stultifies the delivery of Justice in the interpretation of court Rules.”

I think l will go along with Oguntade, JCA (as he then was), a former Justice of this court, in his views as expressed and quoted above. We already have seen the genesis of this case by way of introduction. It is however desirable, at the risk of repetition, but for clarity sake, to re-state in bold, the findings of the learned trial judge, Nwaogwugwu, J, when he considered the motion ex-parte brought by the applicant/1st respondent:

“I have heard the submission of the learned counsel for the applicant in respect of this application. I have also perused the two affidavits in support of this application as well as the three exhibits attached thereto.

The affidavit is cogent enough and it disclosed a prima facie evidence of a threat to the applicant’s fundamental rights to liberty…..

I am satisfied that the applicant has complied with all the procedural requirements for bringing application under this rule. I am also satisfied that his affidavit has disclosed a prima facie evidence of infringement or threat to his fundamental rights to liberty such that requires this court to intervene.”

The grounds upon which the motion Ex-parte was brought to the trial court are contained in a statement in support of the application for leave to enforce fundamental right. The grounds read as follows:

4. “By a letter dated 1st March, 1996 the applicant was invited to appear on 8th March, 1996 before Presidential Task Force on Trade Malpractices to answer charges of trade malpractices.
5. The applicant appeared before the Presidential Task Force on Trade Malpractices on 8th March, 1996 at 10:00 O’clock in the morning
6. The applicant appeared before the officers of the Task Force at their office situate at No. 1 Ozumba Mbadiwe Street, Victoria Island, Lagos who asked him to write a statement.
7. That applicant insisted he was not going to write a statement as he vas not involved in Trade Malpractices.
8. The applicant insisted that he will not make a statement until he sees his lawyer but the officers threatened him that he will not be allowed to go home.
9. After the threat by the officers of the Task Force who are military officers he decided to make a statement.
10. At 11.30a.m. on 8th March, 1996 he was permitted by the officers to go to FSB International Bank Plc to sort things out.
11. The applicant was informed that FSB International Bank Plc laid a complaint against him before the Task Force.
12. The applicant went to FSB International Bank Plc and was asked to pay outstanding debt of Bellview Nigeria Limited a Company which the applicant is the Managing Director.
13. The applicant is not owing FSB International Bank Plc and he is not involved in any trade malpractices.
14. Bellview Nigeria Limited was granted a loan facility of N1.5 Million by a letter dated 9th November, 1994.
15. The applicant has deposited his Certificate of Occupancy No. 67 page 67 in Volume 364 (Certificate of Occupancy of Land Registry at Abeokuta valued over N6 Million with FSB International Bank Plc).
16. When the applicant went to FSB International Bank Plc the bank officials were intimidating him to settle the indebtedness of Bellview Nigeria Limited.
17. At one o’clock in the afternoon on 8th March, 1996 the applicant reported again before the Task Force and they prevented him from going home till 3.00pm when an official told him to settle the outstanding debt before 31st March, 1996 or face detention or seizure of his property.
18. The arrest and false imprisonment of the applicant for 4 1/2 hours on a purely civil matter is an infringement of his liberty.”

After having granted all the reliefs in the Ex-parte application, the learned trial judge, Nwaogwugwu, J, then ordered that the Motion on Notice would be heard on the 17th day of April, 1996.

The trial court presided thereafter by Yahaya, J, and subsequently, by Gumel, J (as he then was) delivered a ruling in which he concluded as follows:

“From the records of the court, leave was granted to the applicant in the instant case to enforce his fundamental rights to personal liberty on the 2nd day of April, 1996.

By the same order, the case was adjourned to the 17th day of April for hearing of the Motion on Notice. By a simple arithmetical calculation there is clearly a period in excess of 14 days as required by R 2 of the Fundamental Rights Enforcement Procedure Rules 1979 which was does(sic) not permit for denegation of the period stipulated therein. Consequently on the authority of Ogwuche v. Mba (supra) the entire proceedings that had been conducted in this suit after leave was granted is a nullity and I so hold.

In view of the conclusion I have reached in this suit, it is not necessary for the court to consider the second issue.

Accordingly the present suit is hereby struck out for the reason stated above.”

Considering the whole scenario, who is at fault Is it the appellant, who, according to the learned trial judge, Nwaogwugwu, as applicant before him had complied with “all the procedural requirements for bringing this application under this rule”, or, the same trial judge who fixed the hearing of the Motion on Notice on the 17th day of April, 1996

The normal and acceptable practice of the courts is that it is not the habit of courts to punish or penalize a party/litigant because of the error/omission committed by the party’s/litigant’s counsel, the judge or even the court officials. See: Amadi v. Acho (2008) 12 NWLR (Pt.939) 386. In this matter and indeed in all other matters pending before a court of law, it is entirely and absolutely the duty of the court to fix or give date(s) for hearing the matter. The party, in this case, the 1st respondent had no control over it. It is thus, quite clear that the error or mistake in fixing the return date for the hearing of the Motion on Notice a day after the 14 days have lapsed/expired as presented by Order 2 R (2) of the FRER was that of the learned trial judge for which the 1st respondent ought not be punished. It would certainly amount to manifest travesty of justice to penalize/punish the 1st respondent for an error which he could not have done anything as same is attributable to the trial court and moreso, when the said error/mistake (just a day after lapse of the 14 day period), cannot, in my view, occasion any miscarriage of justice to the appellant. The trial court presided later by Gumel, J, (as he then was) which nullified the proceedings that had been conducted in the suit after the grant of leave and upon which the suit was consequently struck out, unduly placed heavy reliance on the case of Ogwuche v. Mba (supra). I have studied this Ogwuche’s case and having compared it with the present case, I am inclined to agree with the submission of learned counsel for 1st respondent that Ogwuche’s case cannot serve as an authority or precedence to the present case as Ogwuche’s case was primarily predicated and decided on the issue of the court lacking competence to hear the case as the suit was not properly constituted and initiated as required by law to confer jurisdiction on the court. Secondly, the claim and issue before the court were not on proper interpretation of Order 2 R (2) of FRER, 79. Thirdly, where as the return date in Ogwuche’s case was 40 days (in excess) after leave was granted, the return date in the instant case was only one day in excess of the 14 day period. Thus, Oguche’s case in my view, is quite distinguishable from the instant case.

I agree with Oguntade, JCA (as he then was) further, that is not always that a court of law would interpret the word ‘must’ or ‘shall’ as mandatory. The court must examine the con within which the word is used. The word “MUST’ is often, interchangeable with the word ‘SHALL’ and both can mean “MAY” where the con so admits. The authors of the Blacks Law Dictionary are of the view that:

“This word (must), like the word “SHALL”, is primarily of mandatory effect and in that sense is used in antithesis to “MAY’. But this meaning of the word is not the only one and it is often used in a merely directory sense and consequently is a synonym for the word, “MAY”, not only in the permissive sense of that word, but also in the mandatory sense which it sometimes has.”

In the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt.674)76 at 97, this court had the opportunity of clarifying the matter further, where Uwais, JSC, (as he then was) stated, inter alia:

“it is settled that the word “shall” when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. See: Ifezue v. Mbadugha (1984) 1 SCNLR 427 at pp 456 – 7 ….if used in a mandatory sense then the action to be taken must obey or fulfil the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfil the directive substantially see Woodward v. Sarsons (1875) LR 10 CP 733 at p. 746; Pope v. Clarke (1953) 1 WLR 1060; Julius v. Lord Bishop of Oxford (1881) 5 AC (H .L.) 214 at pp. 222 and 235 and State v. Ilori (1983) 1 SCNLR 94 at 1 10. In Liverpool Boroush Bank v. Turner (1861) 30 L.J. Ch. 379 at p. 657, it was held – No universal Rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of Justice to try and get at the real intention of the legislature by carefully attending, to the whole scope of the statute to be construed.”

From the scenario of this case, again, there appeared to be substantial compliance with the requirement of Order 2 R (2) by the 1st respondent when he did all he was required to do and the day in excess of the period provided was only one day which was erroneously arrived at by the trial court. Could that occasion a miscarriage of justice to the appellant I do not think so.

Further, it is my humble belief that the mischief which Order 2 R (2) seeks to cure is the delay in attending to matters having to do with enforcement of fundamental rights. That is why a period of 14 days is stipulated within which a motion on Notice for the enforcement of such rights must be fixed for hearing after the grant of leave. The purpose, or the necessary intendment of the order, thus, is laying a procedure which ensures that the liberty of the individual who approaches the court for leave to enforce his fundamental right which is at stake, should be given paramount- attention and determination such that the hearing and determination of the Motion should not be delayed or prolonged unreasonably. See. Agbetoba v. Lagos State Exco (1991) 6 SCNJ 1 at 22; Mobil v. F.B.I.R. (1977) 3 SC 53; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt.97) 305.

This notwithstanding, however, it will become an engine of injustice and will encourage high handedness where an applicant is prevented from having his Motion on Notice (which was filed within time) heard on merit, just on the account of a simple human error/mistake by the learned trial judge in fixing the return date just a day beyond the 14 day limit. In any case, Order 2 R (2) of FRER is a procedural Rule which is meant to be of aid to the court. These are some of the expressions used by BELGORE, JSC (as he then was), in the case of U.T.C. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at page 296, viz:

“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the course of justice and not to defeat justice. The rules are therefore, aids to the court and not masters of the court. For courts to read rules in the absolute without recourse to the justice of the cause, to my mind will be making the courts slavish to the Rules. This certainly is not raison d’etre of Rules of Court.”

It is the law and practice also that a rule of court stands to guide the court in the conduct of its business and not to hold as a ‘mistress’ but as a handmaid. See further: Chrisdon Ind. Co. Ltd. v. AIB Ltd. (2002) 8 NWLR (Pt.768) 152; Chime v. Chime (2001) 3 NWLR (Pt.701) 527; Odua Invest. Co. Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1.

It is my candid view that grave injustice would be occasioned to the 1st respondent if the entire proceedings is nullified for the simple reason of fixing the hearing date of the Motion on Notice a day in excess of the 14 day time limit as held by Gumel, J.

In the final result, I find no merit in this appeal and same is dismissed by me. I affirm the decision of the court below which directed that the Motion on Notice by the 1st respondent be heard De Novo before another judge of the Federal High Court, Lagos. And, in view of the time spent in litigation, it is directed that the Motion should be heard most expeditiously. 1st respondent is entitled to N50,000.00 costs from the appellant.

I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

I therefore order accordingly and abide by the consequential orders made in the said lead judgment including the order as to costs.

Appeal dismissed.

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SC.263/2005