FELIX A. UWA v. SUNDAY ETIM AKPAN & ANOR
(2010)LCN/3811(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of May, 2010
CA/C/74/2008
RATIO
FUNDAMENTAL RIGHTS: WHETHER THE STATE AND FEDERAL HIGH COURT HAVE CONCURRENT JURISDICTIOM IN HANDLING ISSUES OF FUNDAMENTAL RIGHTS
It is pertinent to point out that both the State High Court as well as the Federal High have concurrent jurisdiction in handling issues of fundamental rights. If a State High Court refuses to make an order entitling an applicant to enforce his fundamental right, this will not preclude the Federal High Court from entertaining the same application because such proceedings are akin to applications for bail. PER KUMAI BAYANG AKAAH, J.C.A
FUNDAMENTAL RIGHTS: PROCEDURE FOR INITIATING OF PROCEEDINGS FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
The initiation, of proceedings for the enforcement of Fundamental Rights which has been, is being, or is likely to be infringed is commenced by an ex parte application. Order 2 Rules 2(2) and 2(3) of the Fundamental Rights (Enforcement Procedure) Rules provide as follows:-
“2(2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule.
2(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 affidavit verifying the facts relied on.”
When leave has been granted by the court, the applicant will then move to the next step of filing the motion on notice. This is provided for in Order 2 Rule 1(1) and 2(1) as follows
“1(1) When leave has been granted to apply for the order being asked for the application for such order must be made by notice of motion or by originating summons to the appropriate court and unless the Court of Judge granting leave has 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.
2(1) Copies of the statement in support of the application for leave under Order 1 Rule 2(3) must be served with the notice of motion or summons under order 1(3) of Order 2 and, subject to paragraph (2) of this rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.” PER KUMAI BAYANG AKAAH, J.C.A
JUSTICES
K. B. AKAAHS Justice of The Court of Appeal of Nigeria
JAFAARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
FELIX A. UWA – Appellant(s)
AND
SUNDAY ETIM AKPAN & ANOR – Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Calabar delivered on Tuesday the 27th day of March, 2007 in Suit No- FHC/CA/CS/28/2006 wherein the trial Court entered judgment against the appellant.
The background of this matter is that the 1st and 2nd Respondents had on the 22nd day of March, 2006 filed on application for the enforcement of their fundamental rights as enshrined in section 35 of the constitution of the Federal Republic of Nigeria 1999 praying the lower Court for leave to apply by reasons of violation of their fundamental rights as enshrined in section 35 of the constitution of the Federal Republic of Nigeria 1999, and for such further or other orders as the lower Court may deem fit to make in the circumstances.
The application was made exparte and on that same date the lower Court granted the 1st and 2nd Respondents leave to apply for the enforcement of their fundamental rights, also ordering that the appellant shall be put on notice. A return date was fixed for the 19th day of June, 2006. On the 6th day of June, 2006 the 1st and 2nd Respondents filed a motion on notice praying the lower court for the enforcement and protection of their fundamental right in term of their reliefs sought in the statement accompanying the affidavit verifying the facts in support of the application for leave.
On the 30th day of November, 2006 the lower Court ordered written addresses to be filed by the parties through their address on the 15th day of December in argument of their motion on notice filed on the 6th day of June 2006. The appellant on 17th day of January, 2007 filed a reply to the 1st and 2nd Respondents argument. A rejoinder on points of law was filed by the 1st and 2nd Respondents on the 23rd day of January, 2007. After filing written addresses, the trial Judge adjourned the case for judgment which was delivered on the 27th day of March, 2007.
In a considered judgment the trial judge found that the appellant and another had violated the right of the 1st and 2nd respondents and ordered that the 1st and 2nd respondents in this appeal be compensated with the sum of N500.000.00 (Five hundred thousand naira) to be paid jointly and severally by the appellant and another who sued respondents before the lower court The appellant was dissatisfied and therefore filed this appeal.
In the appellant’s brief of argument two issues have been formulated for the determination of this appeal. They read as follows:-
1 Considering the decision of the Calabar High Court in Suit No- HC/MSC.328/2004 whether or not Suit No:FHC/CA/CS/28/2006 filed before the lower Court does not constitute an abuse of Court processes and the applicants estopped from filing further detective (sic) applications in the Federal High Court, Calabar.
2. Considering the processes filed whether or not the application of the respondents violates the provisions of Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules – grounds 2, 4 and 5.
In the Respondents brief of argument two issues have been formulated for the determination of the appeal. They are as follows:-
Whether the Respondents in bringing Suit No: FHC/CA/CS/28/2006 at the lower court complied with the procedural requirement of the Fundamental Right (Enforcement Procedure) Rules.
2. Whether Suit No:FHC/CA/CS/28/2006 was competent before the lower Court and not an abuse of the Court process.
It is to be noted that the 1st and 2nd Respondents filed an application to enforce the, fundamental rights in Suit H/CMSC.328/2004 before the Calabar High Court. The said High Court heard the matter and struck it out for want of junction. Subsequently the 1st and 2nd Respondents brought the same application to the Federal High Court, Calabar Division in Suit FHC/CA/CS/28/2006, wherein Judgment was entered against the appellant.
I think considering of the issues as formulated in the appellant’s brief of argument will be sufficient to determine this appeal. I will therefore consider them.
The first issues is considering the decision of the Calabar High Court in Suit No:HC/MSC.328/2004 whether or not, Suit No.FHC/CA/CS/28/2006 filed before the lower court does not constitute an abuse of court process and the applicant estopped from filing further application in the federal High Court Calabar. There is no need to dwell much on this issue as it is clear that the trial court who earlier heard the matter struck it out on the ground of procedural irregularities. The said trial Court held that its jurisdiction was not properly invoked because of the applicant’s failure to comply with the provisions of Order 1 Rule 2(3) of the Fundamental Right (Enforcement Procedure) Rules 1979. Thus the suit was not dismissed but merely struck out. Thus the matter was not decided on merit. This issue is decided against the appellant. Thus Suit No: FHC/CA/CS/28/2006 was competent before the lower court and not an abuse of the court process.
The next issues is whether the respondents in bringing Suit No: FHC/CA/CS/2006 at the lower court complied with the procedural requirements of the Fundamental right (Enforcement Procedure) Rules considering the proceedings before the trial Court it is clear that the Suit No: FHC/CA/28/2006 having been duly commenced as required by section 46 of the Constitution of the Federal Republic of Nigeria 1999 and having not suffered any jurisdictional disability was competent before the lower court and not an abuse of court process.
It is thus clear that this appeal should be dismissed for the following reasons:-
1. The Respondents complied with the requirements of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979 in bringing the action in Suit FHC/CA/29/2006.
2. The action in Suit No: FHC/CS/28/2006 was competent at the lower court as the striking out of Suit No: HC/MSC/328/2004 at the High Court Calabar was based on procedural irregularities. The decision in Suit No: HC/MSC/328/2004 was not final since it was not decided on the merit. The Respondent was competent to file a fresh action in Suit No: FHC/CA/CS/28/2006.
In the final conclusion I find no merit in this appeal and I accordingly dismiss it.
I award costs in favour of the respondent against the appellant in the sum of N15,000.00.
KUMAI BAYANG AKAAH, J.C.A.: I read in draft the judgment of Mikailu, JCA and I agree with the conclusion and was to add the following in elaboration to the appeal.
This is an appeal from the judgment of the Federal High Court, Calabar in Suit No: FHC/CA/CS/28/06 which was delivered on 27/3/2007, the applicants had earlier filed an ex parte application in the High Court of Cross River State, Calabar in Suit No: HC/MSC/328/2004 and leave was granted to the applicants to enforce their fundamental rights enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria, 1999. The learned trial judge (Agube, J. (as he then was) struck out the application for want of jurisdiction. This was on 3/5/2006. On 22/5/2006 the applicants made a similar application before the Federal High Court, Calabar in Suit No. FHC/CA/CS/2006 which granted them leaves to enforce their rights. At the hearing of the Motion on Notice the same arguments were proffered but this time around, the learned trial Judge, Ajakaiye J granted the reliefs of the applicants; hence this appeal.
It is pertinent to point out that both the State High Court as well as the Federal High have concurrent jurisdiction in handling issues of fundamental rights. If a State High Court refuses to make an order entitling an applicant to enforce his fundamental right, this will not preclude the Federal High Court from entertaining the same application because such proceedings are akin to applications for bail. Suit No. FHC/CA/CS/28/2006 does not constitute an abuse of court process. Moreover Suit No. HC/MSC.328/2004 was struck out and not dismissed.
The second issue that has been agitated is whether the processes filed violate the provisions of Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules.
I wish to observe here that the arguments which learned counsel advanced for these issues were meant for the first issue and vice-versa. He submitted that there was no affidavit filed with the motion on Notice that the appellant could have countered in the proceedings in the lower court as the appellant could not counter facts contained in Exhs. ‘A’ and ‘B’ of the verifying affidavit.
The initiation, of proceedings for the enforcement of Fundamental Rights which has been, is being, or is likely to be infringed is commenced by an ex parte application. Order 2 Rules 2(2) and 2(3) of the Fundamental Rights (Enforcement Procedure) Rules provide as follows:-
“2(2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule.
2(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 affidavit verifying the facts relied on.”
When leave has been granted by the court, the applicant will then move to the next step of filing the motion on notice. This is provided for in Order 2 Rule 1(1) and 2(1) as follows
“1(1) When leave has been granted to apply for the order being asked for the application for such order must be made by notice of motion or by originating summons to the appropriate court and unless the Court of Judge granting leave has 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.
2(1) Copies of the statement in support of the application for leave under Order 1 Rule 2(3) must be served with the notice of motion or summons under order 1(3) of Order 2 and, subject to paragraph (2) of this rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.”
The records show that the respondent to this appeal obtained the necessary leave to enforce the right which has been infringed before filing the motion on notice. The motion is accompanied by a statement stating the name and address of the respondent, the relief being sought and the grounds upon which the reliefs are sought. In paragraph 2 of the verifying affidavit the respondent as applicant averred that:-
“2. That the facts stated in my statement in support of the reliefs in paragraph 2 are true and correct.”
The respondent sought a declaratory relief that his arrest and detention without justification, was unconstitutional, null and void and asked for exemplary damages in the sum of N2,000,000.00. He then chronicled the grounds for seeking the relief.
I am of the considered view that the respondent strictly with the procedure in filing the application. What the appellant was required to do was to react to the statement in support of the application and not the verifying affidavit. This court in OYAWOLE v. SHEHU (1995) 5 NWLR (Pt.414) 485 dismissed the appeal because the statement did not contain any facts which were verified in the affidavit, but instead the particulars liberty said to have been infringed by the respondent which formed the grounds upon which the application was based were contained in an affidavit. The fact that the respondent in the present appeal attached certain documents which were marked Exhs. ‘A’ and ‘B’ to the verifying affidavit did not render the application incompetent.
I therefore agree with the learned trial Judge that the facts contained in the Statement were never controverted by the 2nd respondent/appellant and since the applicant was arrested and detained at the instance of the 2nd Respondent from 25th April, 2004 to 2nd December, 2004 without being informed of the alleged offence committed by him, he was entitled to the award of exemplary damages.
The appeal is totally devoid of any merit and it is accordingly dismissed. I abide by the order of costs made in favour of the respondent against the appellant in the lead judgment.
NWALI SYLVESTER, NGWUTA, J.C.A.: I read in draft the lead judgment delivered by my learned brother Mika’ilu JCA and I agree with the conclusion that the appeal lacks merit and accordingly I also dismiss it.
I adopt the order for costs in the lead judgment.
Appearances
FELIX A. UWAFor Appellant
AND
SUNDAY ETIM AKPAN & ANORFor Respondent
