ABAYOMI FABUNMI V. COMMISSIONER OF POLICE, OSUN STATE & ORS.
(2011)LCN/4440(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of March, 2011
CA/I/207/07
RATIO
ENFORCEMENT OF FUNDAMENTAL RIGHTS: WHAT LAW GOVERNS THE ENFORCEMENT OF THE FUNDAMENTAL RIGHTS IN NIGERIA
The Federal High Court rules will therefore apply only where the Fundamental Rights (Enforcement procedure) Rules made no specific provisions. Where provision has been made by the Fundamental Rights Rules, it is completely out of the question to seek to rely on other rules of court. See Ezeadukwa v. Maduka (1997) 8 NWLR (Pt 518) 635. Per Ubaezonu JCA: “The Fundamental Rights (Enforcement procedure) Rules are rules made by the Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his right under Chapter IV of the said Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. It is therefore clearly wrong for the lower court to fall back to the High Court Rules and purport to derive its power to extend time there from.” See also Chukwuogor v. Chukwuogor (2006) 7 NWLR (Pt 979) 302 @ 317. Furthermore, the Fundamental Rights (Enforcement procedure) Rules are peculiar rules restricted to the enforcement of special rights of a citizen under Chapter IV of the 1999 Constitution. PER CHINWE E. IYIZOBA, J.C.A.
DEMURER: MEANING OF THE TERM “DEMURRER”
“A demurrer is a known and well accepted common law procedure which enable a defendant who contends that even if the allegations of facts as stated in the pleadings to which objection is taken is true, yet their legal consequences are not such as to put the defendant (demurring party) to the necessity of answering them or proceeding further with the cause.” PER CHINWE E. IYIZOBA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF ORDER 1 RULE 2 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES AS TO THE PROCEDURE TO BE FOLLOWED IN COMMENCING A FUNDAMENTAL HUMAN RIGHT ACTION
Order 1 rule 2 of the fundamental Rights (Enforcement Procedure) Rules provides: 2 (1) Any person who alleges that any of the 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 therefore had 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 facts relied on. In an application of this type, what the learned trial court should look out for before granting leave is evidence that the motion ex parte is supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which they are sought and a verifying affidavit. Another reason which may lead to the application being struck out for incompetence is where it is seeking enforcement of a right not recognized under chapter IV of the constitution. PER CHINWE E. IYIZOBA, J.C.A.
JUSTICES
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ABAYOMI FABUNMI – Appellant(s)
AND
1. COMMISSIONER OF POLICE, OSUN STATE
2. MR. OLAOLUSEENI OSHO (AREA COMMANDER, MOORE POLICE STATION, ILE-IFE)
3. PASTOR IFE ADEWUMI (PASTOR FOUR-SQUARE GOSPEL CHURCH, ILE-IFE BRANCH) – Respondent(s)
CHINWE E. IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of Saidu J. of the Federal High Court, Osogbo Osun State striking out the application filed by the appellant for the enforcement of his fundamental rights on grounds of lack of locus standi.
The Appellant, as one of the persons appointed Executors of the Estate of Late Chief Ayo Martins in his will (yet to be admitted to probate) had a dispute with the 3rd Respondent, Pastor Ife Adewumi of the Foursquare Gospel Church Ile-Ife in respect of a property sold to the church by Chief Ayo Martins. In the course of the dispute, the 3rd Respondent petitioned the 2nd Respondent the Area Commander Moore Police station Ile-Ife alleging that the appellant unlawfully broke in and entered premises purchased by the church. Based on this petition, the appellant was repeatedly arrested and detained by the police. All efforts by the appellant to explain that the matter related to dispute over property which was the subject of on-going litigation fell on deaf ears. The appellant then took out an action at the Federal High Court Osogbo for the enforcement of his fundamental rights. He commenced the action by motion ex parte for leave to apply for the enforcement of his fundamental rights but the application was not supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought. The learned trial judge non-the-less granted leave and the appellant then filed his motion on notice.
Instead of entering appearance and filing their counter affidavit, the 1st and 2nd respondents by motion on notice filed a preliminary objection to the application on grounds of lack of locus standi to institute the action. The 3rd Respondent who filed a counter affidavit but did not file any notice of preliminary objection also argued the issue of lack of jurisdiction of the lower court to hear the appellant’s application. After hearing all the parties, the trial court in a considered ruling struck out the appellant’s application for the enforcement of his fundamental rights on the ground of lack of capacity to commence the action in that the appellant did not show sufficient interest in the subject matter of the suit. Dissatisfied with this ruling, the appellant with the leave of the court filed a notice of appeal with three grounds of appeal.
In his brief of argument, the appellant formulated two issues for determination. They are:
1. “Whether the applicant on the application for enforcement of fundamental rights needs to show sufficient right on the claim and bring an application as an executor of the will of late Chief Ayo Martins which he was executing as executor when the violation of his rights occurred to enable the court to hold that the applicant has locus to institute the action. Ground 1 and 2
2. Whether an applicant on Notice of preliminary objection needs to comply with the rules to raise the objection before being heard by the court and the objections upheld: Ground 3.”
The 1st and 2nd Respondents in their brief of argument formulated the same two issues as the appellant above but put more succinctly thus:-
1. Whether the learned trial judge erred in law to make an order for striking out the case for lack of locus standing: Ground 1 and 2
2. Whether the preliminary objection raised by the respondents was properly raised and upheld: Ground 3.
As the second issue touches on the jurisdiction of the court to entertain the application, I will take it as the first issue and the first issue as the second.
On whether the preliminary objection was properly raised, the appellant, Abayomi Fabunmi, Esq. appearing for himself in his brief of argument referred to Order 25 rules 1, 2(1) and (2) and rule 3 of the Federal High Court (Civil procedure) Rules 2000 and submitted that the respondents did not comply with these rules in raising their preliminary objection. Counsel argued that the respondents ought to have first filed a memorandum of appearance and then a counter affidavit within which the preliminary objection could be raised. Counsel argued that the 3rd Respondent filed a counter affidavit but failed to raise the preliminary objection in the counter affidavit. The 1st and 2nd Respondents filed a preliminary objection without filing a counter-affidavit. Counsel in conclusion submitted that the respondents completely disregarded the rules of court and urged us to resolve this issue against the respondents.
Mrs. M.A Bello of the Ministry of Justice, Osogbo for the 1st and 2nd respondents in her brief of argument submitted that the issue of locus standi is a jurisdictional issue which can be raised at any stage of the proceeding and even orally. The court could also raise it suo motu. Counsel argued that issue of jurisdiction cannot be defeated by the provisions of the rules of court and urged us to resolve the issue in favour of the respondents.
In his reply brief to 1st and 2nd Respondents brief of argument Mr. Fabunmi berated Mrs. Bello for what he claimed to be her apparent lack of understanding of the issues involved. He found it preposterous that Mrs. Bello would opine the view that a party raising a preliminary objection need not comply with the rules of court. He submitted that it is settled law that rules of court must be obeyed and that any process, suit or application not in compliance with the rules is incompetent, thereby robbing any court of jurisdiction to entertain such process. He contended that the trial court had no jurisdiction to entertain the preliminary objection which failed to comply with the rules of court, talk less of actually granting the prayer therein.
The suit before the trial court was an application for the enforcement of the fundamental rights of the applicant. The suit was instituted in 2005 and was then governed by the Fundamental Rights (Enforcement procedure) Rules 1979. The Federal High Court rules will therefore apply only where the Fundamental Rights (Enforcement procedure) Rules made no specific provisions. Where provision has been made by the Fundamental Rights Rules, it is completely out of the question to seek to rely on other rules of court. See Ezeadukwa v. Maduka (1997) 8 NWLR (Pt 518) 635. Per Ubaezonu JCA:
“The Fundamental Rights (Enforcement procedure) Rules are rules made by the Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his right under Chapter IV of the said Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. It is therefore clearly wrong for the lower court to fall back to the High Court Rules and purport to derive its power to extend time there from.”
See also Chukwuogor v. Chukwuogor (2006) 7 NWLR (Pt 979) 302 @ 317. Furthermore, the Fundamental Rights (Enforcement procedure) Rules are peculiar rules restricted to the enforcement of special rights of a citizen under Chapter IV of the 1999 Constitution. Time is of the essence. It is therefore necessary that the rules be strictly followed.
A careful examination of the Fundamental Rights (Enforcement procedure) Rules 1979 shows that the law is concerned with the steps to be taken by an applicant applying for the enforcement of his rights and the time frame within which steps were to be taken and the case heard. This of course, emphasizes the fact that time is of the essence. From forms 1 and 2 of the appendix to the Act, it is clear that a respondent on whom the motion on notice or originating summons is served is expected to enter appearance. There is nothing further in the law as to steps to be taken by the Respondent where he desires to raise a preliminary objection. It appears therefore that the applicable law would be the rules of the relevant court. It will appear therefore that Order 25 Rule 2(1) of the Federal High Court Rules 2000 ought to apply. It provides:
Order 25 rule 2(1):
“Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tried the cause at or after the trial.”
The proper procedure therefore would be for the respondents to enter appearance and thereafter file their counter affidavit in which they could raise the objection or in the alternative file the notice of preliminary objection along with their counter affidavit. This procedure, no doubt gives effect to the intention of the Fundamental Rights Rules that time is of the essence.
On the issue of demurrer under order 25 Rule 1 of the Federal High court Rules, my view is that demurrer is inapplicable here. Mr. Fabunmi rightly referred to and quoted the definition of demurrer in Mobil Oil (Nigeria) Plc v. L.A.L. 36 INC. April-June 2002 2 SCNOR Vol. 2 (Part 1.) 119 @ 143 that:
“A demurrer is a known and well accepted common law procedure which enable a defendant who contends that even if the allegations of facts as stated in the pleadings to which objection is taken is true, yet their legal consequences are not such as to put the defendant (demurring party) to the necessity of answering them or proceeding further with the cause.”
In the light of the above definition, Mr. Fabunmi, with all due respect is wrong to contend that the issue of locus standi being canvassed by the respondents at the lower court and upheld by the court is tantamount to demurrer. It certainly is not. The respondents are not by any stretch of the imagination conceding that the allegations in the application for enforcement of the fundamental rights of the appellant are true. Their simple contention is that the appellant did not have the locus standi to institute the action. This clearly touches on the jurisdiction of the court to hear the case. See Madukolu v Nkemdulim (1962) 1 All N.L.R 587.
I agree with the respondents that the issue being one of the jurisdictions of the court to entertain the application, it could be raised at any point in time, even orally. It could also be taken suo motu by the court. This issue is resolved in favour of the respondents.
Issue 2: Whether the learned trial judge erred in law in striking out the case for lack of locus standi.
I have perused carefully the submissions of both counsels in their briefs of argument on this issue. The matter is indeed a very simple one. The way and manner it was handled shows a serious misconception of the law on fundamental rights applications. This misconception was to some extent caused by the way the appellant crafted his application for the enforcement of his fundamental rights. He dwelt so much on the issues touching on his appointment as an executor in the will of Chief Ayo Martins and his efforts towards carrying out his functions as an executor at the expense of the actual reason for instituting the suit – breach of his fundamental rights by the Police. The Appellant went as far as exhibiting the following documents:-
1. The last will and testament of Chief Ayo Martins
2. Writ of summons in a suit between Sunday Akinola Fagbemi and another v. Chief Ayo Martins
3. Agreement for sale of land between Chief Ayo Martins and the Board of Trustees Four Square Gospel Church
4. A court ruling in the case of Sunday Akinola Fagbemi and Chief Ayo Martins and a host of other documents on cases touching on the estate.
On the basis that the will exhibited had not been established in the probate registry and that the appellant was not a party to the many documents exhibited, the trial judge, with all due respect very wrongly ruled that:
“the applicant for the enforcement of fundamental right has not shown sufficient right on the claim to enable me hold that he has locus to institute this action. It will amount to preventing the Police from performing their constitution (sic) duties confirmed (sic) on them.”
As earlier stated, an application for the enforcement of the fundamental rights of an applicant is governed by the Fundamental Rights (Enforcement Procedure) Rules. The appellant’s case is that he was unlawfully arrested and detained by the Police. He exhibited the will and court processes to show that it was not a case of conduct likely to cause a breach of the peace but a dispute over landed property, subject of an on-going litigation. The issue of locus standi with regard to the will and administration of the estate should not have arisen at that stage.
Order 1 rule 2 of the fundamental Rights (Enforcement Procedure) Rules provides:
2 (1) Any person who alleges that any of the 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 therefore had 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 facts relied on.
In an application of this type, what the learned trial court should look out for before granting leave is evidence that the motion ex parte is supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which they are sought and a verifying affidavit. Another reason which may lead to the application being struck out for incompetence is where it is seeking enforcement of a right not recognized under chapter IV of the constitution.
The ruling of the learned trial judge that the appellant had no locus standi to institute this action is misconceived as the issue in this application is not the administration of the estate of Chief Ayo Martins but whether there was a breach of the appellant’s fundamental rights.
I have looked through the record of appeal very diligently. The motion ex parte for leave is not supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which they are sought. It is supported by an affidavit and a verifying affidavit. This is contrary to the provision of Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules. Why would an affidavit be verified by another affidavit?
Order I rule 2(3) provides that the application for leave must be made ex parte 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 facts relied on. The use of the word must imply that the requirement is mandatory.
Even though Mr. Fabunmi did not comply with the requirement of the law as stated above, in moving his motion ex parte at page 54 of the record of appeal he deceitfully stated that the application is “supported by a statement, relief sought and the grounds on which the relief is sought”
With all due respect to learned counsel for the 1st and 2nd respondents Mrs. Bello, her contention that the 1st and 2nd respondents are statutorily empowered to detect, investigate, arrest and detain a suspect reasonably suspected to have committed a crime and should not be prevented from performing their constitutional duties is premature in her preliminary objection challenging the competence of the appellant to institute the action. This indeed underscores the need to file a counter affidavit and argue the preliminary objection along with the substantive motion. Time is absolutely of the essence in applications for the enforcement of the fundamental rights of an applicant. Without filing a counter affidavit, if the preliminary objection was found unmeritorious, then the respondent would now go back to file his counter affidavit thereby wasting precious time. This indeed would defeat the intention of the law in providing that the motion on notice or summons must be entered for hearing within fourteen days after leave has been granted. See Order 2 rule 1(8) Fundamental Rights (Enforcement Procedure) Rules.
I agree with Mr. Fabunmi that the learned trial judge was in grave error to have struck out the case on the ground of lack of locus standi. This issue is resolved in favour of the appellant.
The appellant had invited us to invoke section 15 of the Court of Appeal Act and determine the substantive application instead of sending the case back to the lower court for determination. From the record of appeal, it is evident that the appellant’s application in the lower court did not comply with the provisions of the Fundamental Rights (Enforcement Procedure) Rules in that the motion ex parte for leave was not supported by a statement setting, out the names and description of the applicant the relief sought and the ground on which it is sought. The application was consequently incompetent and liable to be struck out.
In the circumstances, I hold that this appeal lacks merit. It is hereby dismissed. The ruling of the lower court striking out the application is upheld but for a reason different from that given by the lower court in its ruling. I make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: The appellant, as applicant in the Court below, invoked the special jurisdiction of the Federal High Court, Osogbo, Osun State pursuant to Section 46 of the constitution of the Federal Republic of Nigeria 1999 for the enforcement of his rights guaranteed in chapter iv of the constitution. He alleged that the violation of this chapter iv rights consisted in his repeated arrests and detention by the Respondent over a dispute relating to property, and which was subjudice at the time of the arrests and detention.
In his presentation before the Court below he blurred the distinction between his right to personal liberty under S.35(1) of the Constitution and any proprietary right he may need to protect under S.44(1) of the Constitution. Be that as it may the appellant’s grouse with the Respondents is clear on the face of the processes before the lower Court. It is therefore surprising that the issue of locus standi should have even been considered in the case wherein the appellant complained he was arrested and detained severally over a dispute in respect of property, more so when the matter is subjudice. The trial Court erred in striking out the application on ground by lack of locus standi.
On the other hand, as clearly demonstrated in the lead Judgment the application for leave was grossly incompetent and should not have been granted by the trial Court. The Fundamental Rights (Enforcement Procedure) Rules 1979 were made by the Chief Justice of Nigeria pursuant to S.46 (3) of the Constitution. Order 1 Rule 2 (3) of the Rules provides.
“An application for such leave must be made exparte 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 facts relied on.” The application for leave was filed in violation of the above provision. The trial Court should have struck it out as incompetent.
The appellant invited the Court to invoke S.15 of the Court of Appeal Act and determine the substantive application instead of sending the case back below for determination. I will accept the invitation but for a different purpose. I will strike out the application for leave as the Lower Court ought to have done. The substantive application is incompetent without leave to file it. See Ord. 1 rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules which provides that “No application for an order enforcing or securing the enforcement within that state of any such Rights shall be made unless leave therefore had been granted in accordance with this rule.”
I have read before now the lead Judgment of my Lord Iyizoba JCA just delivered and for the foregoing and the more-comprehensive reasons articulated in the lead judgment I also dismiss the appeal as devoid of merit and for a reason different from that upon which the Court below struck out the application I affirm the ruling of the Court below. I also make no order as to costs.
MOORE A.A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, CHINWE IYIZOBA, JCA.
I am however of the view that the law is well-settled that a question of jurisdiction can be raised anyhow and at any stage of the proceedings. It can even be raised for the first time on appeal. See ENUGWU V. OKEFI (2003) 3 NWLR (Pt. 650) 620. I agree with the very comprehensive reasoning and conclusion of my learned brother that this appeal be dismissed for lack of merit. The appeal is hereby dismissed.
I agree that the parties should bear their respective costs.
Appearances
Abayomi Fabunmi Esq.For Appellant
AND
M.A. Bello (Mrs)
M. O. Agboola Esq.For Respondent
