CHIEF OF NAVAL STAFF ABUJA & ORS v. ARCHIBONG & ANOR
(2020)LCN/14878(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/C/357/2014
RATIO
CIVIL SUITS: MODES OF COMMENCING CIVIL SUITS
Generally speaking, there are four broad modes of commencing civil suits namely (a) Writ of Summons, (b) Originating summons, (c) Originating motion and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz the Rules of Court in relation to Writ of summons, Originating summons and originating motions. The latter, originating motions could be categorized into two broad types (i) Originating motions for prerogative orders and (ii) Originating motion under the Fundamental Rights (Enforcement procedure) Rules 2009 made pursuant to the authorities that inhere the Chief Justice of Nigeria. Then lastly, petition as a mode of originating actions in commencing suits pursuant to express statutory provision as shown above. See ALFA V. ATTAI (supra). PER LAWAL SHUAIBU, J.C.A.
MOTION: NATURE OF AN ORIGINATING MOTION
An originating motion is an application that commences a proceeding in a Court. Thus, it is a generic term for various documents by which a civil action may be commenced. In FEDERAL MINISTRY OF WORKS AND HOUSING & ANOR V. MONIER CONSTRUCTION COMPANY NIGERIA LTD & ANOR (2009) LPELR – 8261 (CA) it was held that an originating motion is one of the ways by which an action is commenced while motions on notice are for interlocutory proceedings. The foregoing distinction was however made in relation to the Provisions of Order 2 Rule 2 (3) of the Federal High Court (Civil Procedure) Rules 2000 vis-a-vis the Provision of Order 9 thereof. PER LAWAL SHUAIBU, J.C.A.
FUNDAMENTAL RIGHTS: APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS
There is no doubting the fact that an application for enforcement of the fundamental rights of an applicant is governed by the Fundamental Rights (Enforcement procedure) Rules. Thus, it is an application to enforce fundamental rights as enshrined in Chapter IV of the 1999 Constitution as amended. Such an application may be brought either as originating motion or motion on notice in so long as it is made clear that the originating Court process seeks reliefs for the infringement of the right so guaranteed under Chapter IV of the Constitution. In other words, the competence of the action and indeed the jurisdiction of the trial Court is not affected by the form of action adopted. It suffices if the applicants’ complaint is understood and deserves to be entertained. See TARABA STATE GOVERNMENT & ANOR V. SHAKU & ORS (2019) LPELR – 48130 (CA). Also in IHEME V. CHIEF OF DEFENCE STAFF & ORS (Supra) it was held that an applicant seeking to enforce his rights under Chapter IV of the 1999 Constitution as amended has the option to come by way of Motion, Originating summons, Writ of Summons or by any other form of commencement of an action acceptable to the Court. PER LAWAL SHUAIBU, J.C.A.
INTERPRETATION: WHETHER PREAMBLE PREVAILS OVER THE CLEAR WORDS USED IN THE OPERATIVE PART OF AN ENACTMENT
Perhaps, it may be necessary to restate the legal position that preamble does not prevail over the clear words used in the operative part of an enactment. It does not control the plain words of the enactment. In OGBONNA V. A.G., IMO STATE (1992) LPELR – 22871 at 25. Nnameka Agu, JSC said:-
“It is necessary to note that a preamble to an enactment is as it were its preference or introduction the purpose of which is to portray the interest of the framers and the mischief they set out to remedy. It may sometimes serve as a key to open the understanding of the enactment.” PER LAWAL SHUAIBU, J.C.A.
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
1. THE CHIEF OF NAVAL STAFF ABUJA 2. THE COMMANDING OFFICER, EASTERN NAVAL COMMAND, CALABAR 3. THE COMMANDING OFFICER NIGERIAN NAVY SHIP VICTORY, CALABAR 4. NAVY CAPTAIN I. ITOKO 5. NAVY COMMANDER H. J. ARVOMAREN APPELANT(S)
And
1. EYO ARCHIBONG 2. ESTHER EYO ARCHIBONG RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting at Calabar delivered on the 7th day of November, 2013 wherein judgment was entered in favour of the applicants (now respondents).
The respondents herein through a motion on notice filed on 8/11/2012 prayed the lower Court for the enforcement of their fundamental right against the appellants’ threats of arrest, intimidation as well as forceable seizure of the 1st respondent’s Nokia handset, Mercedes Benz Car with registration No. AZ 54 APP and the sum of N100,000.00.
Upon being served with the said motion papers, the appellants filed a preliminary objection to the hearing of the respondents’ motion on notice. After taking argument of counsel, learned trial judge dismissed the preliminary objection and granted the respondents reliefs in the substantive motion on notice.
The appellants were dissatisfied with the decision of the trial Court, and they appealed to this Court. Their notice of appeal filed on 16/7/2014 contains four grounds of appeal.
From these grounds, the appellants
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distilled two issues for the determination of this appeal as follows:-
1. Whether considering the respondents’ originating process and the entire circumstances of the case the respondents’ suit was competent and the Court had jurisdiction to adjudicate on same.
2. Whether the learned trial judge was right to hold the appellants liable for breach of respondents’ fundamental right.
On their part, the respondents also formulated two issues for determination of this appeal thus:-
1. Whether this fundamental rights suit was not in compliance with Fundamental Rights Enforcement Procedure Rules, 2009.
2. Whether the findings of the learned trial judge were wrong.
On the appeal, the issues formulated by the parties are similar. The appellants being the complainants, the issues formulated by them represent their grievances. I shall therefore adopt the two issues formulated by the appellants in determining this appeal. In doing so, I will consider the issues in the order in which they have been argued.
ISSUE ONE
On this, learned counsel for the appellants submitted that motion on notice being an interlocutory
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application under the Federal High Court Rules is therefore not an originating process or originating application for Fundamental Right Enforcement. He referred to Order 2 Rule 2 of the Fundamental Right Enforcement Rule in contending that an originating motion is the mandatory mode of commencing fundamental right action.
He submitted that the rule having expressly stated the mode of commencement, the respondents originating process by way of motion on notice is invalid and also fundamentally defective. Counsel cited KIDA V. OGUNMOLA (2006) ALL FWLR (prt 327) 402 at 412 – 413, MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374 at 379 – 380, AMCON V. ONYEDIKA (2018) LPELR – 43764 (CA) and FEDERAL MINISTRY OF WORKS AND HOUSING & ANOR V. M.C. LTD & ANOR (2009) LPELR – 8261 (CA) to the effect that motion on notice is for interlocutory proceedings and not an originating process for Fundamental Rights Proceedings.
Learned counsel further submitted that a fundamental right application pursuant to Section 46 (1) of the 1999 Constitution contemplates instances of an infractions against an individual as against joint or group enforcement
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relying on the decisions of this Court in the cases of UDO V. ROBSON & ORS (2018) LPELR 45183 and KPORHAROR & ANOR V. YEDI & ORS (2017) LPELR – 42418 (CA).
On the part of the respondent, learned counsel contended that Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 has set out the procedure for commencing fundamental rights suits and that the format is in the appendix to the Rules that is, Form No1. He submitted that from the wordings and intent of the said Form 1, there is no difference with the wordings of every motion on notice.
Still in contention, learned counsel argued that motion on notice used in pending actions are not normally accompanied by statements setting out the name and description of the applicant, the relief sought and the grounds upon which the reliefs are sought. He submitted that in so far as the trial Court accepted the procedure of commencement of this fundamental right suit, such a procedure is valid. He referred to IHEME V. CHIEF OF DEFENCE STAFF & ORS (2018) LPELR – 45354 (CA) to the effect that an application for the enforcement of Fundamental right may be made by any
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originating process acceptable by the Court.
On whether the fundamental right procedure envisages joint or group enforcement, learned counsel contended that this issue was never raised or canvassed at the trial Court and same could not have been made an issue in an appellate Court without leave of Court relying on DAGACI OF DERI V. DAGEG OF EBWA (2006) 7 NWLR (prt 979) 382.
Replying on point of law, learned counsel for the appellants submitted that an issue touching on jurisdiction requires no leave of Court as same can be raised even by the Court suo motu relying on MEGA PROGRESSIVE PEOPLES PARTY V. INEC (2015) LPELR – 25706.
The appellants’ main contention here is that commencing the fundamental right enforcement is to be done by an originating motion and not by a motion on notice which is a recipe of a pending cause or matter. I have stated right from the onset that the respondents as applicants before the trial Court prayed for the enforcement of their fundamental right to personal liberty and right to property respectively guaranteed under Section 35 and 44 of the 1999 Constitution as amended. In their quest to enforce the said
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constitutional rights, they filed a motion on notice which was accompanied by a statement containing the reliefs sought and grounds upon which the reliefs are sought as well as an affidavit in support of the motion.
The provisions of Order 2 Rules 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides for the mode of commencement and it states as follows:-
“2. An application for the enforcement of the fundamental right may be made by any originating process accepted by the Court which shall subject to the provisions of these Rules lie without leave of Court.
3. An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made”.
Generally speaking, there are four broad modes of commencing civil suits namely (a) Writ of Summons, (b) Originating summons, (c) Originating motion and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz the Rules of Court in relation to Writ of summons, Originating
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summons and originating motions. The latter, originating motions could be categorized into two broad types (i) Originating motions for prerogative orders and (ii) Originating motion under the Fundamental Rights (Enforcement procedure) Rules 2009 made pursuant to the authorities that inhere the Chief Justice of Nigeria. Then lastly, petition as a mode of originating actions in commencing suits pursuant to express statutory provision as shown above. See ALFA V. ATTAI (supra).
An originating motion is an application that commences a proceeding in a Court. Thus, it is a generic term for various documents by which a civil action may be commenced. In FEDERAL MINISTRY OF WORKS AND HOUSING & ANOR V. MONIER CONSTRUCTION COMPANY NIGERIA LTD & ANOR (2009) LPELR – 8261 (CA) it was held that an originating motion is one of the ways by which an action is commenced while motions on notice are for interlocutory proceedings. The foregoing distinction was however made in relation to the Provisions of Order 2 Rule 2 (3) of the Federal High Court (Civil Procedure) Rules 2000 vis-a-vis the Provision of Order 9 thereof.
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Learned counsel for the appellants has strenuously argued that an invalid originating process constitutes a fundamental defect that impugns on the Court’s jurisdiction. There is no doubting the fact that an application for enforcement of the fundamental rights of an applicant is governed by the Fundamental Rights (Enforcement procedure) Rules. Thus, it is an application to enforce fundamental rights as enshrined in Chapter IV of the 1999 Constitution as amended. Such an application may be brought either as originating motion or motion on notice in so long as it is made clear that the originating Court process seeks reliefs for the infringement of the right so guaranteed under Chapter IV of the Constitution. In other words, the competence of the action and indeed the jurisdiction of the trial Court is not affected by the form of action adopted. It suffices if the applicants’ complaint is understood and deserves to be entertained. See TARABA STATE GOVERNMENT & ANOR V. SHAKU & ORS (2019) LPELR – 48130 (CA). Also in IHEME V. CHIEF OF DEFENCE STAFF & ORS (Supra) it was held that an applicant seeking to enforce his rights under Chapter IV of the 1999 Constitution as amended
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has the option to come by way of Motion, Originating summons, Writ of Summons or by any other form of commencement of an action acceptable to the Court.
In the instant case, the trial Court having accepted the mode of commencing the action by motion on notice which is not a motion on notice in a pending proceeding or matter, same in my humble view cannot be described as an invalid process.
It was also contended by the appellants that there is no room for joint or group enforcement of fundamental right in a single application. Before determining whether or not the fundamental rights (Enforcement procedure) Rules 2009 contemplates a joint or group application let me quickly state that the applicant at the trial Court are husband and wife and therefore brought a single application for the enforcement of their Fundamental rights. Section 46 (1) of the 1999 Constitution states in clear terms that:-
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.”
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Neither the 1999 Constitution nor the Fundamental Rights (Enforcement Procedure) Rules 2009 defines the word ‘person’ but in the context of Section 46 (1) of the Constitution and Order 1 Rule 2 (1) of the extant Fundamental Rights (Enforcement Procedure) Rules it refers to an individual. The adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any” which also denotes to singular and does not admit pluralities in any form. It is thus an individual right as opposed to collective right. I am however not unmindful of the preamble to the extant Rules which encourages and welcome public interest litigations in human rights field which in effect provides that no human rights case may be dismissed or struck out for want of locus standi. The contention here is not on the rights of the applicants to institute the action but rather on the propriety of bringing joint action. In the REGISTERED TRUSTEES, F.T. C.C. N. v. IKWECHEGH (2000) 13 NWLR (prt 683) 1 at 8 also following the decision in C.C.B. (NIG) PLC V. ROSE (1998)4 NWLR (prt 544) 37 and AYINDE V. AKANJI (1985)1 NWLR (prt 66) 80, it was emphatically held that if
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an individual feels his fundamental right has been violated he should take action personally for the alleged infraction. In effect, it is a wrong joinder of action and incompetent for different individuals to join in one action to enforce different causes of action. The fact in this case is similar with that of UDO V. ROBSON & ORS (supra) wherein this Court per Adah JCA held that it is improper for two or more persons to apply jointly for the enforcement of their fundamental rights. Perhaps, it may be necessary to restate the legal position that preamble does not prevail over the clear words used in the operative part of an enactment. It does not control the plain words of the enactment. In OGBONNA V. A.G., IMO STATE (1992) LPELR – 22871 at 25. Nnameka Agu, JSC said:-
“It is necessary to note that a preamble to an enactment is as it were its preference or introduction the purpose of which is to portray the interest of the framers and the mischief they set out to remedy. It may sometimes serve as a key to open the understanding of the enactment.”
In the light of the foregoing and considering the fact that there is no ambiguity
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in the words used in both Section 46 (1) of the 1999 Constitution and Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules 2009, the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009; cannot override the plain words used in both the Constitution and the extant rules. I cannot therefore deviate from the previous decision which prohibits joint and or group application for the enforcement of fundamental rights.
I also agree with the submission of the learned counsel for the appellants that the issue of want of proper parties though a new issue but being an issue of jurisdiction, no leave of Court is required. I unhesitatingly resolved this issue in favour of the appellants.
ISSUE TWO
The appellants contention here is that the respondents as applicants at the trial Court did not establish the violation of their fundamental rights against the 1st appellant and that the 2nd and 3rd appellants are not justice persons. Counsel submitted that the trial Court found the appellant liable solely on their failure to file counter-affidavit and same does not ground an admission relying on MOKWE V EZEUKO (2001) FWLR
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(prt 38) 1275 at 1288.
The respondents however contended that when facts in an affidavit are unchallenged, same are deemed admitted and should be believed and relied upon by the Court.
It is settled that where depositions on material facts in an affidavit in support of an application are not denied by the adverse party by filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court can act on them except they are moonshine. See AKITI V. OYEKUNLE(2018)8 NWLR (prt 1620) 182.
In the instant case, the appellants did not demonstrate the deficiencies in the respondents’ affidavit nor proffer argument in support of the issue of juristic personalities of the 2nd and the 3rd respondents. This issue is therefore resolved against the appellants.
Having already found that the fundamental right (Enforcement Procedure) Rules 2009 does not contemplate joint application; the lower Court lacks the requisite competence and jurisdiction to entertain the respondents’ application ab initio.
In consequence, the appeal therefore succeeds and it is accordingly allowed. The judgment o
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the trial Court delivered on 7/11/2013 is hereby set aside.
Parties shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned brother, MUHAMMED LAWAL SHUAIBU, JCA.
My learned brother has brilliantly and painstakingly dealt with the issues nominated for determination in this appeal.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal has merit and is also allowed by me.
I abide with the consequential Orders as to costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered has been graciously made available to me in draft before now.
I wholly agree with the reasoning and the conclusion and thereby allow the appeal, thus setting aside the decision of the Court below.
I abide on all orders made in the lead judgment including that as to costs.
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Appearances:
EKPEDEME IYOHO, ESQ. For Appellant(s)
BASSEY OFFIONG, ESQ. For Respondent(s)
