Solomon Ohakosim V. Commissioner of Police Imo State & Ors (2009)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORIOLATOKUNBO KEKERE-EKUN, J.C.A.
This is an appeal against the ruling of the High Court of Imo State, Orlu Judicial Division delivered on 11/7/2006 striking out the appellant’s motion ex-parte filed on 5/7/2006 for an order for leave to enforce his fundamental rights.
The facts that gave rise to this appeal, as can be gathered from the record of proceedings and the submissions in the briefs of argument, are as follows: On 14th June, 2006 the appellant herein, an evangelist, was conducting a religious crusade in Okwelle, Onuimo Local Government Area of Imo State when he was arrested by officers of the SARS unit of the Nigeria Police, Imo State Headquarters, Owerri. According to the appellant the said Policemen disrupted the crusade, dismantled and removed chairs and canopies, removed cash offerings amounting to N38, 000.00 and some musical instruments, and dispersed the congregation. He alleged that his arrest was as a result of a petition written against him by the 3rd respondent to the Inspector General of Police alleging that he and some other persons assaulted the 3rd respondent’s brother and beat him to a state of coma. The appellant remained in police custody without bail until 21st June, 2006 when he and three other persons were arraigned before the Magistrates’ Court, Dikenafai. The charge was however struck out for lack of jurisdiction. The appellant was immediately rearrested by policemen from SARS and remanded in police custody. Consequently he filed a motion ex-parte in Suit No. HOR/73/2006, pursuant to the Fundamental Rights, (Enforcement Procedure) Rules for an order granting him leave to apply to enforce his fundamental rights.
On 11/7/2006, after hearing learned counsel for the appellant, the learned trial Judge ruled, at page 28 of the record, thus:-
“The application is refused. There is a criminal charge against the applicant in Suit No. HOR/15C/2006. I take judicial notice of this case. The said Suit No. HOR/15C/2006 has not been determined and as such the court cannot grant the leave sought for in this application. Leave is therefore refused. The motion ex-parte for leave to enforce the fundamental rights of the applicant is struck out. ”
Being dissatisfied with the ruling the appellant filed a notice of appeal on 1/8/2006 containing three grounds of appeal.
Briefs of argument were filed and exchanged between the appellant and the 3rd respondent herein. The 1st and 2nd respondents although duly served with the processes in the appeal, including hearing notices, did not attend court nor file any response thereto. The appellant’s brief dated 11/9/06 was filed on 20/9/06. The 3rd respondent’s brief was deemed properly filed and served by an order of this court on 28/2/07.
At the hearing of this appeal on 9/2/09, C.B. Nworka Esq., learned counsel for the appellant adopted the appellant’s brief. He urged us to strike out the preliminary objection raised in the 3rd respondent’s brief on the ground that Order 10 Rule 1 of the Rules of this Court were not complied with, as the 3rd respondent did not file a formal notice of preliminary objection. He also observed that the statement of facts contained in the said brief is not borne out by the record of appeal. He urged us to allow the appeal. A.N. Anyile, Esq., learned counsel for the 3rd respondent adopted the 3rd respondent’s brief and urged us to dismiss the appeal.
From the three grounds of appeal, the appellant distilled the following two issues for determination:
- Whether the decision of the learned trial Judge is not unconstitutional and unlawful. (Grounds 2 and 3)
- Whether the learned trial Judge exercised his discretion judiciously. (Ground 1).
The 3rd respondent also formulated two issues for determination thus:
- Whether the learned trial Judge was right in refusing the appellant the leave sought (Grounds 2 and 3)
- Whether the learned trial Judge exercised his discretion judiciously. (Ground 1).
Having regard to the similarity between the issues formulated by both parties, I shall adopt the appellant’s issues in determining this appeal. I am of the view that the appeal can conveniently be disposed of by a consideration of the first issue alone. The submissions of learned counsel on both issues shall be considered under the appellant’s issue 1. Before going into the merits of the appeal it is necessary to consider the preliminary objection raised at page 2 paragraph 3.01 of the 3rd respondent’s brief. The objection reads:
“The Respondent” shall during the hearing of the appeal contend that this appeal is incompetent and constitutes an abuse of court process in that the appellant being an accused person was charged to court in charge no. HOR/15C/2006 for attempted murder. His application for bail was refused and he appealed to this court in suit no. CA/PH/275/2006 not yet determined. The appellant within the same period filed this suit praying for the leave of the court below and for the said leave to operate as a stay of further detention. In Anyaduba v. NRT Co. Ltd. (1990) 1 NWLR (127) 395 it was held that it is an abuse of process where two similar processes were used in respect of the exercise of the same right namely a cross appeal and respondent’s notice. See also Saraki v. Kotoye (1992) 9 NWLR (264) at page 188 and 189.
May I urge the court to dismiss/strike out this suit?”
By Order 3 Rule 15 (1) of the Court of Appeal Rules 2002, the applicable rules at the time the 3rd respondent’s brief was filed (now Order 10 Rule 1 of the Court of Appeal Rules 2007), a respondent intending to rely upon a preliminary objection to the hearing of an appeal, is required to give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection. Where a respondent fails to file his notice of preliminary objection as required by the aforesaid provision, but gives notice thereof in his brief of argument and incorporates arguments on the objection therein, the courts, in the interest of fair hearing and doing substantial justice, would not discountenance the objection provided that at the hearing of the appeal, the respondent orally seeks leave to move the preliminary objection before the adoption of the briefs of argument See: Tiza v. Begha (2005) 15 NWLR (1949) 616; Umar v. W.G.G. (Nig.) Ltd. (2007) 7 NWLR (1032)117 @ 134 H & 135 A – H.
Although incorporated in the 3rd respondent’s brief, not only is the purported notice of preliminary objection not in the format prescribed by Order 10 Rule 1 of the Rules, but learned counsel for the 3rd respondent also failed to orally apply to move the preliminary objection at the hearing of the appeal on 9/2/09. The objection is therefore deemed abandoned and accordingly struck out the sole issue for determination in this appeal is whether the decision of the learned trial Judge is unconstitutional and unlawful.
In support of this issue, learned counsel for the appellant referred to Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria and Article 7 (1) (b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 (now Cap A9 LFN 2004) to the effect that every person charged with a criminal offence shall be presumed innocent until proved guilty. He submitted that Section 46 (1) of the Constitution guarantees the right of a citizen to apply to a High Court for redress where his fundamental rights have been infringed. On the guidelines for the interpretation of the Constitution he relied on the case of: Ushae v. C.O.P. Cross River State Command (2006) All FWLR (313) 86 @ 1047; (2005) 11 NWLR (937) 499. He argued that by refusing the application on the ground that the appellant has a criminal charge pending against him, the learned trial Judge had prejudged him to be guilty of the offence charged. He submitted that even where an accused is found guilty of a criminal offence, his right to the enforcement of his fundamental rights remains extant by virtue of Section 46 (1) of the Constitution, which contains no qualification. He submitted that no court has the power to read into an enactment an exception not provided for and thereby deprive a person of a right or recourse thereunder. He referred to: Mbonu v. Nwoti (1991) 7 NWLR (206) 737 @ 750; Egbe v. Yusuf (1992) 6 SCNJ (Part 2) 263 @ 275; Agwuna v. A.G. Federation (1995) 5 SCNJ 66 @72.
Learned counsel for the appellant submitted that in disregarding the provisions of Sections 17 (1) & (2), 36 (5) and 46 (1) of the Constitution, the learned trial Judge denied the appellant his rights as guaranteed thereunder, thus rendering the ruling appealed against a nullity. He cited the case of: Knight Frank v. A.G. Kano (1998) 4 SCNJ 167 @179.
In further submission on this issue, learned counsel submitted that the learned trial Judge raised the issue of the pendency of suit No. HOR/15C/2006 suo motu. He observed that there was no reference to the suit in any of the processes before the Court and that the charge does not form part of the record in this appeal. He submitted that the appellant was not given an opportunity to address the court on the issue, in breach of the right to fair hearing. He relied on: Oje v. Babalola (1991) 5 SCNJ 110 @ 121; Ezeanya v. Okeke (1995) 4 SCNJ 60 @ 88; Tinubu v. I.M.B. (2001) 10 SCNJ 1 @ 12 -13. He submitted that a decision reached without fair hearing is a nullity no matter how well conducted. He referred to: State v Onagoruwa (1992) 2 SCNJ (Part-1) 1 @ 22; Salu v. Egeibon (1994) 6 SCNJ (Part 2) 223 @ 239; Idakwo v. Ejiga (2007) 7 SCNJ 211 @ 216.
Another ground for the contention that the ruling is unlawful is the submission that the ruling violates Article 7 (1) of the African Charter on Human and Peoples’ Rights. He submitted that Section 1 of Cap 10 (now Cap A9) provides that the provisions of the African Charter shall be given full recognition and effect and shall be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria. He argued that the provision is mandatory. He referred to Section 46 (1) of the Constitution and the Fundamental Rights (Enforcement) Procedure Rules as relevant laws and regulations under Article 7 (1). He argued that having regarded to these provisions the court would have no right to refuse leave to an applicant to apply to enforce his fundamental rights.
He conceded however that the court has a duty to take into account issues such as whether the application is properly brought or whether the right sought to be enforced is one which could be enforced under the fundamental rights procedure. He also conceded that the court has a right to consider the merits or otherwise of the substantive application at the appropriate stage. He contended that notwithstanding the apparent discretion conferred on the court by the Fundamental Rights (Enforcement) Procedure Rules, it is settled law that rules of court or practice directions cannot override the clear and mandatory provisions of a statute, such as Cap 10 LFN 1990. In support of this contention he relied on: Auto Import v. Adebayo (2002) 12 SCNJ 124 @ 139; Afribank Plc. v. Akwara (2006) 1 SCNJ 223 @ 235. He submitted that in view of the provisions of Section 1 of Cap 10 LFN 1990 and Article 7 (1) of the African Charter, the learned trial Judge exercised a discretion he did not have. He submitted that any decision made contrary to a mandatory statutory provision is a nullity. He relied on the case of: Menakaya v. Menakaya (2001) 9 SCNJ 1 @ 19.
On the second issue, learned counsel argued that even if this court holds that the learned trial Judge has discretion to grant or refuse the application for leave, such discretion was exercised injudiciously in the instant case by taking into consideration irrelevant factors and ignoring the facts before the court. He submitted that the court is not entitled to rely on its own opinion in the exercise of discretion without due consideration of the application before it. He relied on: Ushae v. C.O.P. Cross River State Command (supra) @ 106. He argued that the learned trial Judge in the instant case completely ignored the merit or otherwise of the application. He submitted that where an appellate court concludes that there has been a wrongful exercise of discretion, or that no weight or insufficient weight, has been attached to relevant considerations, it may reverse the exercise of such discretion. He referred to: Okere v. Nlem (1992) 4 SCNJ 24 @ 40; Odogwu v. Odogwu (1992) 2 SCNJ (Part 2) 357 @ 372; Irewole L.G. v. Oyeyemi (1993) 1 SCNJ 127 @ 137 – 139; Odutola v. Kayode (1994) 2 SCNJ 21 @31.
Learned counsel submitted that it is an accepted principle that the interpretation of a statute must be in accord with common sense, reason and logic. He submitted that it is a general rule that a statute should not be construed to impair existing rights or obligations unless such intention is clear from the words used in the statute. See: Udoh v. Orthopaedic Hospital (1993) 7 SCNJ (Part 2) 436 @ 444 – 445. He submitted further that where an enactment is capable of two interpretations, the interpretation most favourable to the accused person should be preferred. See: Oladele Vs State (1993) SCNJ 60 @ 70 & 74.
In response to the submissions on behalf of the appellant, learned counsel for the 3rd respondent submitted that there are exceptions to the right to enforce the fundamental rights provided for in Sections 35, 38 and 39 of the Constitution. He referred particularly to Section 35 (1) (b) & (c) to the effect that a person may be deprived of his personal liberty “in order to secure the fulfillment of any obligation imposed upon him by law” “or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.” He contended that it was clear that the appellant had been charged to court in Suit No. HOR/15C/2006 for attempted murder of the elder brother of the 3rd respondent; that the trial court was aware of this fact and had refused the appellant bail in that suit; that the proof of evidence in the suit showed that the appellant and others actually attacked the 3rd respondent’s brother. He submitted that it would be prejudicial for the appellant to use the fundamental rights enforcement procedure to avoid being tried for a criminal offence in which he has a case to answer.
Learned counsel submitted that the appellant did not rely on the African Charter on Human and Peoples Rights at the trial court. He submitted that the Constitution is the supreme law of the land. He argued further that the African Charter does not permit an accused person to escape trial or to frustrate the courts from handling matters pending before it.
On the appellant’s contention that he was not afforded an opportunity to address the court on the pendency of suit no. HOR/15C/2006 raised by the court suo motu, he submitted that the court took judicial notice of a pending suit before it and that the circumstances are different from a situation where the court raises a point of law or issue of jurisdiction suo motu. He stated that the appellant did not deny the fact of the pendency of the suit.
With regard to the second issue, learned counsel submitted that the court exercised its discretion judiciously in this case. He submitted that the court considered the following facts in reaching its decision:
- That there was unrest in Abukwa Community from where the suit arose, and that it was caused by the appellant;
- That the appellant was refused bail in Suit No. HOR/15C/2006;
- That Suit No. HOR/75/2006 is a camouflage to get bail for the appellant from the back door after the trial court had already refused same.
He therefore urged us to dismiss the appeal.
Before considering the merits of this appeal, I have found it necessary to comment on the submissions of learned counsel for the 3rd respondent regarding the facts of this case. The record of proceedings in this appeal contains 30 pages. Pages 6 – 28 contain the following processes:
a. Notice of Appeal – pages 6 – 9;
b. Ex-parte application for leave to apply to enforce fundamental rights – pages 10 – 26.
(Attached to verifying affidavit in support of the ex-parte application at pages 19 and 20 is Exhibit A, the charge against the appellant and three others in suit MIDS/27C/2006 before the Magistrates Court, Idato South Magisterial District, Imo State; and Exhibit B at pages 21 – 26, the proceedings and ruling delivered on 21st June, 2006 in suit MIDS/27C/2006 striking out the charge).
c. Proceedings and Ruling of the lower court – pages 27 – 28.
The 8-line ruling of the lower court has been reproduced earlier in this judgment. The charge sheet and proof of evidence in Suit No.HOR/15C/2006 do not form part of the record transmitted to this court.
There is nothing on the record to show that the processes in Suit No. HOR/15C/2006 was part of the processes before the lower court in Suit No. HOR/73/2006 on 11/7/2006. As correctly observed by learned counsel for the appellant, the submissions of learned counsel for the 3rd respondent regarding the facts that weighed in the mind of the court when it delivered its ruling are not borne out by the ruling itself nor by the record of proceedings.
In the determination of an appeal, both the parties and the court are bound by the appeal. See: Texaco Panama Inc. v. S.P.D.C. (Nig.) Ltd. (2002) 5 NWLR (759) 209 @ 234 D – E; Sommer v. F.H.A. (1992) 1 NWLR (219) 548 @ 557 – 558; Albasma (Nig) Ltd. v. Salami (1998) 4 NWLR (iii) 448 @ 456 – 457 F – A.
In the case of: Okonkwo v. State (1998) 8 NWLR (561) 210 @ 256 His Lordship, Tobi, JCA (as he then was) had this to say on facts narrated in a brief of argument:
“The record of appeal is there for appellate Judges to read the facts and a brief cannot be a substitute. And what is more, there are instances where facts narrated in a brief are tutored versions arising from the caprices of counsel slanting towards the usual sentiments of the client’s case,”
It is very clear in the instant case that the facts narrated by learned counsel for the 3rd respondent have been heavily coloured by sentiment, for his client’s case and do not reflect the content of the record. All the submissions not borne out by the record are accordingly discountenanced.
I shall now consider the merit of the appeal.
Sections 33 – 45 of Chapter IV of the 1999 Constitution guarantee the fundamental rights of every citizen of Nigeria, while Section 46 guarantees the right of any person who alleges that any of the provisions of Chapter IV has been, is being or likely to be contravened in any State in relation to him, to seek redress before a High Court of that State. Section 46 (3) empowers the Chief Justice of Nigeria to make rules with respect to the practice and procedure of the High Court for the purposes of the section. Pursuant to Section 46 (3), the Fundamental Rights (Enforcement Procedure) Rules 1979 (now Cap C23 LFN 2004) were enacted. Order 1 Rule 2 (1), (2) & (3) thereof provides:
2 (1) “Any person who alleges that any of his fundamental rights provided for in the Constitution and to which he is entitled, has been, is being or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur for redress.
(2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave herefor has been granted in accordance with this rule.
(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 description of the applicant, the relief sought, and the grounds on which it is sought and by an affidavit verifying the fact relied on.”
The appellant’s application for leave to apply to enforce his fundamental rights was accompanied by a statement setting out the name and description of the applicant, the reliefs sought and the grounds for the said relief in compliance with Order 2 Rule 1 (3) of the Fundamental Rights (Enforcement Procedure) Rule. It was also supported by a verifying affidavit with exhibits annexed thereto. The reliefs as set out at pages 12-13 of the record are reproduced hereunder.
A. “Preliminarily, leaves to apply for the enforcement of fundamental right; order that such leave should operate as a stay of further detention of the Applicant.
B. Substantively:
(i) A declaration that the arrest and detention of the Applicant by the 1st and 2nd Respondents at the active instigation of the 3rd Respondent, on and from the 14th day of June, 2006 till the 21st day of June, 2006, is unlawful, unconstitutional, and an infringement of the Applicant’s fundamental right to personal liberty guaranteed under Section 35 of the 1999 Constitution of Nigeria, (ii) A declaration that the said arrest and detention, coupled with the violent disruption of the of the Applicant’s religious crusade/worship, disbandment of Applicant’s religious colleagues and followers, and seizure of Applicant’s religious musical instrument to wit: two (2) musical foreign brass drums, and the cash sum of Thirty-Eight Thousand Naira (N38,000,00) by the 1st and 2nd Respondents at the instigation of the 3rd Respondent, is illegal, unconstitutional, and an infringement of the Applicant’s fundamental right to freedom of religion guaranteed under Section 38 of the 1999 Constitution of Nigeria,
(iii) A declaration that the re-arrest of the Applicant by the Respondents on the 21st day of June, 2006, following the striking out of Charge No: MIDS/27C/2006: C.O.P. v. SOLOMON OHAKOSIM & 3 ORS, by the Magistrate’s Court, Dikenafai is unlawful and an infringement of the Applicant’s fundamental right to liberty guaranteed under Section 35 of the 1999 Constitution of Nigeria,
(iv) A declaration that the continued detention of the Applicant by the 1st and 2nd Respondents, at the connivance and active instigation of the 3rd Respondent, from the 21st day of June, 2006, till presently with the aim of preventing the Applicant from conducting his religious activities, or in respect of the subject – matter of Charge No: MIDS/27C/2006, is unlawful, unconstitutional and an infringement of Applicant’s fundamental rights under, Sections 38 and 39 of the 1999 Constitution of Nigeria.
(v)Return FORTWITH to the Applicant by the Respondents the said musical instruments and the cash sum of Thirty – Eight, Thousand Naira (N38, 000.00) seized and still being detained by them.
(iv) Ten Million Naira (N10m) General Damages jointly and severally against the Respondents in favour of the Applicant for the said breaches of his fundamental rights.
(vii) An Order directing the Respondents severally, to render written AND public apologies to the Applicant for the said breaches of his fundamental rights.
The appellant brought his application for leave pursuant to Sections 35, 38 and 39 of the Constitution alleging infringement to his right to liberty, freedom of worship and freedom of expression. Learned counsel for the appellant has argued that the refusal of the application for leave by the learned trial Judge is unlawful, as it violates not only Chapter IV of the 1999 Constitution but also Article 7 (1) of the African Charter on Human and Peoples Rights.
Section 1 of the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act provides:
“As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights, which are set out in the schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.”
Article 7 (1) (a) – (d) of the Schedule provides:
- “Every individual shall have his right to have his cause heard. This comprises:
(a) the right to appeal to competent national organs against act of violating his fundamental rights as recognised and guaranteed by convention, laws, regulations and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;
(c) the right to defence, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal.”
Articles 8 & 9 guarantee the right to freedom of religion and freedom of expression. By virtue of Cap A9 LFN 2004, the African Charter constitutes part of the laws of Nigeria and must be upheld by all law Courts in the country. Indeed, as rightly observed by the Supreme Court in the case of Abacha v. Fawehinmi (2000) 6 NWLR (660) 228 @ 289 C; 340 G – H & 342 D – E, Nigeria has given due recognition to the African Charter by enshrining most of the rights and obligations guaranteed therein in Chapter IV of the 1999 Constitution. The Fundamental Rights (Enforcement Procedure) Rules enacted, pursuant to Section 46 (3) of the Constitution is one of the means by which a person may seek to enforce the rights guaranteed by the African Charter and Chapter IV of the Constitution. In Abacha v. Fawehinmi (supra) at 342 D – F, the Supreme Court referred to its earlier decision in the case of Ogugu v. The State (1994) 9 NWLR (366) 1 per Bello, CJN at 26 – 27 where it held:
“Since the Charter has become part of our domestic laws, the enforcement of its provisions, like all our other laws fall within the judicial powers of the courts as provided by the Constitution and all other laws relating thereto. ,.. It is apparent … that the human and peoples’ rights of the African Charter are enforceable by the several High Courts depending on the circumstances of each case, and in accordance with the rules, practice and procedure of each court.”
It follows from the above, that contrary to the submissions of learned counsel for the 3rd respondent, the appellant was entitled to apply to the High Court to apply for leave to seek redress for the alleged infringement of his rights as guaranteed by the Constitution and by the African Charter on Human and Peoples’ Rights.
Section 46 (2) of the Constitution gives original jurisdiction to a High Court before which an allegation is made that any of the provisions of the Constitution has been, is being or is likely to be infringed in relation to him, to hear and determine any application made to it in pursuance of the provisions of the section. The High Court may issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person making the application may be entitled under Chapter IV of the Constitution. The Fundamental Rights (Enforcement Procedure) Rules set out the procedure for seeking such redress.
The next issue to be considered is whether an infringement of his fundamental rights was disclosed on the face of the processes before the trial court to warrant his being granted leave to apply to enforce them. As observed earlier in this judgment, the reliefs set out in paragraph B subparagraphs (i) – (iv) of the appellant’s statement show that he alleges infringement of his rights as guaranteed by Sections 35, 38 and 39 of the 1999 Constitution.
It is pertinent to note that at the stage of an application for leave to apply to enforce fundamental rights, the Court is not being called upon to determine the merits of the substantive application. Once an applicant has made out a prima facie case for the grant of leave, the application would not normally be refused. See: Ushae v. C.O.P. (2005) 2 NWLR (937) 499 @ 535 H.
I have carefully examined the statement of the appellant attached to the motion ex parte setting out the grounds for the application at pages 12 – 16 of the record. The grounds were summarised earlier in this judgment in the course of giving a brief history of the facts that gave rise to the proceedings before the lower court. I am satisfied that the appellant had made out a prima facie case for the grant of the application.
The grant of an application for leave to apply to enforce fundamental rights is within the discretionary powers of the High Court.
An appellate court would not usually interfere with the exercise of such discretion unless it is shown that the discretion was exercised in an arbitrary manner or without, due consideration of relevant issues. See:
Ushae v. C.O.P. {supra} @ 531 A – D; R. Benkay (Nig) Ltd. v. Cadbury (Nig) Plc (2006) 6 NWLR (1976) 338 at 367 D-E; Ogolo v. Ogolo (2006) 2-3 SCNJ 235 at 245 lines 20-30; Oyekanmi v. NWPA (2000) 15 NWLR (690) 414 AT 438, The ruling of the lower court at page 28 of the record, in its brevity, threw all known principles of fair hearing as well as good judgment writing to the wind. Although individual Judges may have their own particular style when it comes to writing judgments or rulings, all judgments or rulings must identify the issues for determination, evaluate the evidence adduced, make clear findings of fact and arrive at a definite conclusion. See: Ushae v. C.O.P. (supra) @ 534 E – G; Mbani v. Bosi (2006)11 NWLR (991)400 at 418 – 419 H-B. In the instant case, none of the above attributes was present in the ruling appealed against. The learned trial Judge failed to consider the merit of the application based on the affidavit evidence and exhibits before him. He did not consider the submissions of learned counsel for the applicant. A court of law, duly seised of a matter, has a duty to give a dispassionate and impartial consideration to all the materials placed before it. It has no right to go outside the record before it. See: Ushae v. C.O.P. (supra) @ 531 A – D; Sanusi v. Ameyogu (1992) 4 NWLR (237) 527; Duru v. Nwosu (1989) 4 NWLR (113) 24. In the instant case the learned trial Judge made no finding on whether or not the applicant had made out a prima facie case for the grant of leave. Rather he relied on extraneous matters, which were not part of the record before him and in respect of which he did not afford the applicant a hearing, to determine the application. There is no doubt that this was an injudicious exercise of discretion, which has resulted in a miscarriage of justice. In such circumstances this court has a duty to interfere with the decision. See: R. Benkay (Nig.) Ltd. v. Cadbury (Nig.) Plc. (supra); Ogolo v. Ogolo (supra); Oyekanmi v. NEPA (supra); Ushae v. C.O.P. (supra).
The sole issue for determination in this appeal is therefore resolved in favour of the appellant.
Learned counsel for the appellant has urged us to exercise our powers under Section 16 of the Court of Appeal Act 2002 (now Section 15 of the Court of Appeal Act Cap C36 LFN 2004) to grant the application. Having regard to the fact that the application for leave was based on affidavit evidence, this Court is in as good a position as the trial court to evaluate the affidavit evidence and determine whether the appellant has made out a prima facie case to entitle him to the leave sought. See: Narumal & Sons (Nig,) Ltd. v. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (106) 730 @ 742; S.P.D.C. (Nig.) Ltd. v. Perelale & Ors. (1978) 2 SC 183; Ushae v. C.O.P. @ 535 D- E.
I have carefully considered the statement in support of the application, the grounds therein, the verifying affidavit and the exhibits annexed thereto. I am satisfied that the appellant has made out a prima facie case alleging infringement of his rights as guaranteed by Sections 35, 38 & 39 of the 1999 Constitution and is entitled to be granted leave to apply to enforce same.
In conclusion the appeal succeeds. The ruling of the High Court of Imo State, sitting at Orlu in Suit No. HOR/73/2006 delivered on 11th July, 2006 is hereby set aside. Leave is hereby granted to the appellant to apply to enforce his fundamental rights.
The substantive application if and when filed shall be given an accelerated hearing by another Judge of High Court of Imo State other than B.A. Njemanze, J.
Other Citations: (2009)LCN/3189(CA)
