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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.