The Registered Trustees of the Motors Spare Parts Dealers Association of Nig. & Ors V. Mr. Maxwell O. Ikpo (2008)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
The 1st Respondent on record filed Suit No. FHC/CA/C5/15/2005 at the Federal High Court, Calabar under the Fundamental Rights (Enforcement Procedure) Rules 1979 praying the court for the following orders:
- A declaration that the arrest and detention of the Applicant by the 5th Respondent without any lawful justification is unconstitutional, illegal and therefore null and void and of no effect whatsoever, same being in violation of the Applicant’s Fundamental Right to the dignity of the human person and personal liberty.
- A declaration that the continuing arrest, intimidation and harassment of the Applicant by the Respondents on the basis of petition by the 1st – 4th Respondents is unconstitutional and therefore violates the Applicant’s Fundamental Right as provided under Section 35(1) of the 1999 Constitution.
- An order of injunction restraining the Respondents either by themselves, their servants, agents and or privies from further harassing, arresting and or detaining the applicant at any Police Station within and outside Calabar.
- An order of court canceling Union Bank cheque No. 00090117 which cheque the Respondents forced the Applicant to issue to Motor and Motor-cycle Spare Parts Dealers Association. And an order also directing the Respondents to return all the documents in respect of the land which 1st – 4th Respondents have declined to buy which documents were collected from the Applicant by 5th Respondent.
- An order for the Respondents to pay compensation in the sum of N1, 000,000.00 (One Million Naira) only jointly and severally and also tender a written apology to the Applicant for the violation of “his Fundamental Right.”
Upon the service of the processes filed by Respondent on the Appellants, the appellants filed Notice of Preliminary Objection to the hearing of the application and urged the court to strike out the suit on the following grounds:
i) That the action was filed in contravention of Order 1 Rule 2(3) & (4), Order 2 Rules 1(1) & 1(4) of the Fundamental Rights (Enforcement Procedure) Rules.
ii) The action is contentious and ought not to be brought under the Fundamental Right Enforcement procedure Rules.
iii) The issue of filing, service, etc., is fundamental in an application under the Fundamental the Right Enforcement Procedure Rules and requires strict compliance of same.
The learned trial Judge heard arguments on the Preliminary Objection. Ruling on the preliminary objection, the learned trial Judge held that the grounds for the objection were a mere irregularity which will not vitiate the proceeding. He accordingly dismissed the objection and this prompted this appeal.
The Notice of Appeal contained two grounds of appeal from which the following issue was distilled for determination:
Whether non-compliance of the provisions of the Fundamental Right Enforcement Procedure Rules is a mere irregularity and if not is it the duty of the applicant to comply.
The Appellants also filed a Reply Brief.
Apparently the Respondent adopted the issue framed by the Appellants; hence no issue was formulated in the Respondent’s brief.
“Learned counsel for the appellants argued that although the learned trial Judge agreed with the submission of counsel that there was a failure on the part of the applicant to comply with the provision of Order 1 Rule 2(3) of the Fundamental Right (Enforcement Procedure) Rule as interpreted in OYAWOLE v SHEHU (1995) 8 NWLR (Pt. 414) 484 but held that the said non compliance was a mere irregularity. The position taken by the learned Judge is not in consonance with the Supreme Court decision in DANGTOE v C. S. C. PLATEAU STATE (2001) 9 NWLR (Pt. 717) 132 which held that the Fundamental Right Enforcement Rules must be strictly complied with as non compliance with the rules is a pre-condition for the exercise of to the case must be clearly stated in the statement and then verified in a verifying affidavit were not so stated, this is not a mere irregularity but a fundamental vice which deprived the court of its jurisdiction. Reliance was placed on the case of EZEADUKWA v MADUKA (1997) 8 NWLR (Pt. 518) 635.
Learned counsel also pointed out that there was non-compliance with Order 2 Rule 1(1) which stipulates that where leave has been granted to apply for the Order, there must be at least eight clear days between the service of the Motion or Summons and the date named therein for the hearing since there is no dispute that the date of service fell short of the stipulated eight days. Learned counsel submitted that this cannot be a mere irregularity but a violation of the decision in NGIGE v ACHUKWU (2005) 2 NWLR (Pt. 909) 213.
Learned counsel also argued that the affidavit of service envisaged by Order 2 Rule 1(4) is the affidavit of service sworn to by the applicant himself as opposed to service by bailiffs of the court and such affidavit must be sworn to and filed before the date for hearing and if such affidavit is filed after the date fixed for hearing it is a breach. The following cases were cited in support ONYEMAIZU v OJIAKOR (2000) 6 NWLR (Pt. 659) 25 and ” RE: APPOLOS UDO (1987) 4 NWLR (Pt 63) 120. He urged the court to allow the appeal.
In reply, learned counsel for the respondent submitted that it is not mandatory that facts relied upon in the application for the enforcement of fundamental rights must Le contained only in a statement. Such facts can be contained in an affidavit as Order 1 Rule 2(3) is merely directory and not mandatory. It was further argued in the respondent’s brief that the general object to be secured under Order 1 Rule 2(3) is for the applicant to put up the facts of the case and when leave was granted to the respondent, he filed his statement and stated the reliefs he is seeking. He therefore urged the court to hold that the Respondent complied with the provision of Order 1 Rule 2(3) of the Fundamental Right Enforcement Procedure Rules.
On Order 2 Rule 1(1) learned counsel argued that the appellants had more than eight days between the time the motion on notice was filed and when the appellants argued the objection in the trial court and submitted that it is not part of the provision of Order 2 Rule 1(1) that the judge has to state in writing that the time provided in the order was abridged for the Respondent to serve the motion on the appellants. He contended that the intendment of the provision requiring eight clear days for the hearing of the motion is to give the appellants ample time to file their own answer to the facts deposed to by the Respondent. Relying on OJUKWU v OBASANJO & ORS. (2004) 10 MSJC 1 at 21 learned counsel submitted that in interpreting the provision or section of a statute or indeed the constitution, such provisions or section should be read as a whole and not in isolation so as to give meaning that will resonate with sense and make it workable and real. He urged this court to hold that the trial Judge had jurisdiction to entertain and hear the case.
Before dealing with the arguments put forward by learned counsel, it is necessary to state that the records which have been used for this appeal are not comprehensive but rather sketchy. For example the motion ex parte in respect of which leave was sought by the applicant to enforce his fundamental right has not been compiled. The only document presented is the drawn up order contained at pages 7 and 8 of the records of, appeal and in the drawn up order, the date the ex parte application was filed was on 15/2/2005 but it was moved on 17/2/2005 and the return date was fixed for 1/3/2005. There is however a process contained on pages 20 – 23 of the records consisting of affidavit verifying facts relied on by Nsikak Essien in support of the statement. Apparently this was the application which was moved by the applicant upon which the drawn up order granting the applicant leave to enforce his fundamental rights was hinged.
It is pertinent to note that leave was granted to the applicant on 17/2/2005 to file his application for the enforcement of his fundamental rights that was being infringed upon. The return date was fixed for 1/3/2005 but the appellants were served with the motion papers on 23/2/2005. The first Preliminary Objection which was later on withdrawn was filed on 28/2/2005. A fresh one was filed on 2/6/2005 and this was the Preliminary Objection the appellants argued on 20/7/2005.
The argument put forward by appellants’ counsel that the facts leading to the case were not stated in the statement which is a pre-condition for the exercise of jurisdiction and offends Order 1 Rule 2(3) states that –
“An application for such leave must be made ex parte at the appropriate court and must be supported by a statement setting out the name description of the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on.”
The motion ex parte is made to the court which is to grant the leave. If the Respondent had instituted the action without first filing the ex parte application to seek the leave, the appellants would be right to argue that the pre-condition for the exercise of jurisdiction has not been met. Once leave has been granted as exhibited in the drawn up order, nobody has power to question the exercise of that discretion unless it was not exercised judicially and judiciously. The following processes were filed along with the motion on notice:
i) The Motion on Notice (pages 1 – 2)
ii) An affidavit in support of the motion (pages 3 – 6)
iii) The order granting leave to the applicant for the enforcement of his fundamental rights (pages 7 – 8).
iv) Statement under Order 1 Rule 2(3) (pages 22 – 23) and
v) Affidavit verifying facts relied on (pages 20 – 21).
The only issue that merits serious consideration is the return date for the application. Order 2 Rules 1(1) and 1(2) of the Fundamental Rights (Enforcement Procedure) Rules provide:-
“1. When leave has been granted to apply for the order being asked for, the application for such order must be made by motion or by originating summons to the appropriate court, and unless the court or judge granting leave otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. Form No. 1 or 2 in the Appendix may be used as appropriate.
- The motion or summons must be entered for hearing within fourteen days after such leave has been granted.”Leave was granted on 17/2/2005. The return date was 1/3/2005.
“The appellants were served with the motion on 23/2/2005. This that there were only five clear days between the service of the motion and the date named therein for the hearing. If the Preliminary Objection filed on 28/2/2005 had been moved on 1/3/2005, there would have been a valid argument that the eight clear days were not met for the hearing of the motion. But for reasons which are not apparent on the record, the matter did not come up until 20/7/2005 when the Preliminary Objection filed on 2/6/205 was moved. Although the argument by the learned counsel for the respondent that the adjournment of the case to 1st March, 2005 was not for hearing is untenable since the return date is the date usually fixed for hearing, I have no hesitation in agreeing with the learned trial Judge’s ruling that if there was any defect in the order abridging the time between the service and the hearing of the motion, it did not rob the court of jurisdiction to hear the matter. After all the court or judge had discretion to abridge time as Order 2 Rule 1(1) clearly shows.
The arguments of learned counsel for the appellants are mere technicalities. In SAUDE v. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387, the Supreme Court held that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. But where the non-compliance with the rules of the court is on the part of the court, the defect is merely administrative and does not render the proceedings consequent thereto a nullity. It was within the powers of the learned trial judge to abridge time for hearing the application which was done in this particular case. This contrasts with the situation under which the decision in SKENCONSULT (NIG) LTD. & ANOR v GODWIN SECONDY UKEH (1981) 1 SC 6 was reached. There the Writ issued from the Bendel State High Court was to be served on the appellants who resided in Lagos, outside Bendel State and it was issued on 13th November, 1978 and the return date was 24th November, 1978. The provisions of Section 98, 99 and 101 of the Sheriffs and Civil Process Act dealing with service of the writ outside jurisdiction was considered. The Supreme Court in setting aside the writ held that where a Writ of Summons originates in one State for service in another State, it is mandatory that there should be a period of at least 30 days between the date of service and the date that the defendant is required to appear in court. So the Skenconsult case is distinguishable from the instant case.
I have given serious thoughts to some of the cases cited in argument such as: OGWUCHE v MBA (1994) 4 NWLR (Pt. 336) 75; EZEADUKWA v. MADUKA (1997) 8 NWLR (Pt. 518) 635; NGIGE v ACHUKWU (2005) 2 NWLR (Pt. 909) 123 and I am of the considered view that once leave has been obtained and the respondent is properly served and has had time to respond, the court should proceed to hear argument from the parties on the enforcement of the applicant’s fundamental rights which have been infringed or are being threatened since speed is of the essence in hearing such applications. The normal rules of court regarding the length of time it should take before the matter is ready for hearing can therefore be dispensed with by the court since the court has discretion to abridge time. I therefore find that there is no merit in the appeal as it has only served to delay the hearing of the application.
the appeal as it has only served to delay the hearing of the application.
The appeal is accordingly dismissed and I hereby make an order for the expeditious hearing of the application by the Federal High Court, Calabar. I shall make no order as to costs.
Other Citations: (2008)LCN/3008(CA)
