CHIEF UKATA SAM AKPAN & ORS v. TITI PETER UDO & ORS
(2013)LCN/5849(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2013
CA/C/184/2010
RATIO
PROCEDURE: EFFECT OF FAILURE TO FILE AN AFFIDAVIT OF SERVICE BEFORE THE SUBSTANTIVE APPLICATION
The effect of fixing the substantive application “for argument” on the 27th day of February, 2009 was that it was for hearing on that day. When the application came up for hearing that day it became clear that only the 1st Respondent/Applicant had been served the processes. There was no affidavit setting forth the names of the parties served nor yet to be served contrary to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which provides as follows:
“(4) An affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) of this rule has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the Court or Judge on the hearing of the motion or summons.”
In Re Appolos Udo (1987) 4 NWLR (Pt.63) 120 Olatawura, JCA (as he then was) held at page 127 that:
“…I will agree with the submission in the Respondent’s brief that the provisions of Order 2 rule 1(3) are mandatory and are to be complied with by the Appellant…It is a necessary step that must be followed and failure to take the necessary steps affects the hearing of the application but not the merits of the application. In this case the application is struck out”
The failure to file an affidavit of service before the substantive application comes for hearing has always been treated by the Courts as fatal to the determination of the substantive application. See Paulinus Nwaeze vs. Commissioner of Police (2001) 1 CHR 449; Engineer General Adekunle Odofin (Rtd) vs. Inspector General of Police (2001) 1 CHR 440; Chukwuogor vs. Chukwuogor (2007) NWLR (Pt.979) 302 at 306; and Ngige vs. Achukwu (2005) 2 NWLR (Pt.909) 123. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF UKATA SAM AKPAN
2. JAMES SOLOMON AKPAN
3. SUNDAY EFFIONG
4. EBRENSO UDO EFFIONG
5. FRANCIS UDO EFFIONG
6. PETER NOAH ESSIEN
7. PERTER AFAHA
8. NSE UDO EFFIONG
9. ETIM MBA AKPAN
10.JACOB AKPAN EFFIONG
11. PETER JACOB UDO Appellant(s)
AND
1. TITI PETER UDO
2. MFON EFFIONG ISEH
3. SAMUEL AKPAN SAMUEL
4. UTOMOBONG MATHEW NDOM
5. PETER ISEH AKPAN
6. DENNIS UDO BASSEY
7. RAPHAEL JOHN AKPAN
8. PHILIP JOHN AKPAN
9. DANIEL JOHN AKPAN
10. JOHN EFFIONG UDO
11. SAMUEL NELSON NWANKWO
12. FRANCIS ISEH UDOETTE
13. EFFIONG UDO AKPAN
14. ESSIEN ISONG EFFIONG
15. AFANGIDE TOM NDOM
16. FRIDAY AKPAN EBO
17. NSE JOHN BASSEY
18. LAWRENCE AUGUSTINE ISEH
19. FRANCIS SAM UKPAI
20. JACKSON ANDREW UDO
21. NDIFREKE EKPEYONG Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered by His Lordship Charles U. Ikpe J., of the High Court of Justice, Ikono, Akwa Ibom State on 2nd June, 2009 wherein His Lordship dismissed a preliminary objection brought by the appellants to dismiss an application by the Respondents to enforce their fundamental rights alleged to have been infringed by the appellants. The appeal was filed on 12th July, 2009. Three grounds accompany the Notice of Appeal.
Learned Counsel formulated three issues for determination in the brief filed on 8th December, 2010. The Respondents did not file any brief though served the processes.
The appeal was set down for hearing on appellant’s brief alone. On 4tn December, 2012 when the appeal came up for hearing neither the appellants nor their learned Counsel appeared though served the processes. The appeal was deemed argued. See Order 18 rule 9(4) of the Court of Appeal Rules, 2011. I shall proceed to consider and determine this appeal on the appellants’ brief alone, but first the facts of the case presented before the lower Court.
On 16th day of February, 2009 the learned trial Judge granted the Respondents leave to apply for the enforcement of their fundamental rights as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 as altered. The enrolled order set down the substantive motion to 27th day of February, 2009 for argument. See page 3 lines 16-18 of the printed record.
The reliefs claimed by the Applicants/Respondents are set out in the motion on Notice supported by affidavit as follows:
“(1) A declaration that the arrest, detention, torture and degrading treatment of the Applicants on the various dates between 8th February, 2008 and 17th April, 2008 by the 1st to 16th Respondents at the instance, instigations, active assistance and directions of the 1st to 11 Respondents are violations of their fundamental rights to dignity, personal liberty and freedom of movement which are guaranteed under Sections 34(1)(a), 35(1) and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, unlawful and unconstitutional.
(2) An order directing the Respondents to pay jointly and severally to the Applicants the sum of N50,000,000.00 (Fifty Million Naira) being exemplary and aggravated damages for wrongful arrests, detention, torture and degrading treatment of the Applicants and the violent breach of their fundamental rights enshrined in Section 34(1)(a), 35(1) and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(3) An order of injunction restraining the Respondents, whether by themselves, their agents, servants or persons however called from further interfering in any manner whatsoever with the Applicants’ enjoyment of their fundamental rights to personal liberty, freedom of movement and respect for the dignity of their human persons.
(4) And such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
The grounds for seeking relief are that there was a political upheaval which resulted in the ransacking and destruction of houses and properties in Ogu, Mkpu and other villages in Mbanuso Clan in Ini Local Government Area of Akwa Ibom State. The Respondents alleged that they were arrested, detained and tortured by police and soldiers. That the appellants master-minded their ordeal.
They did not commit these offences hence they sought leave to enforce their fundamental rights and to claim injunctive reliefs and damages.
On the 24th February, 2009 the appellants filed a Notice of preliminary objection attacking the jurisdiction of the learned trial Judge to entertain the application on grounds that as at the 27th day of February, 2009 when the Motion on Notice was set down for hearing not all the appellants had been served with the processes. Besides, the appellants were not given the 8 days mandatorily required by the Rules for them to respond to the application. There was no affidavit as to the parties who were served or not the substantive application. Learned Counsel referred to Orders 2 rules 1(1) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 in argument and decided authorities. The learned Counsel to the Respondents in the Court below submitted, and the learned trial Judge agreed, that the preliminary objection was pre-mature. The objection was dismissed with costs of N2,000.00 against the appellants hence this appeal.
Learned Counsel to the appellants formulated three issues for determination as follows:
“1. Whether the trial Court had the competence (jurisdiction) to hear and determine the Suit No. HKN/MISC.15/2009 considering the fact that the mandatory provisions of Order 2 rule 1(1) and Order 2 rule 1(4) of the Fundamental Rights Enforcement Procedure Rules, 1979 was not complied with.
2. Whether the cases of Chukwuogor vs. Chukwuogor (2006) 7 NWLR (Pt.979) 302 at 306, and Ngige v. Achukwu (2005) 2 NWLR Part 909, were not applicable to the case under review and if yes, whether the learned trial judge was right not to follow and rely on them in his ruling.
3. Whether the Motion on Notice for the enforcement of the Fundamental Rights of the Applicants allegedly breached was not fixed or listed for hearing on the 27th February, 2009.”
ISSUE ONE:
Learned Counsel submitted that a condition precedent was for the applicants/respondents to have filed an affidavit of service to show which of the respondents had been served, at what place, time, and venue, etc, and those not served. That such an affidavit must be before the Court on the date of hearing. Learned Counsel referred to Order 2 rule 1(4) of the Fundamental Right Enforcement Procedure Rules, 1979 read together with Chukwuogor vs. Chukwuogor (2006) 7 NWLR (Pt.979) 302 at 306. Learned Counsel urged the Court to strike out the substantive application.
ISSUE TWO:
On issue two Counsel contended that Order 2 rule 1(4) and (4) of the Rules supra is mandatory. When breached, this robs the trial Court of jurisdiction. Counsel cited Ngige vs. Achukwu (2005) 2 NWLR (Pt.909) 123 at 129 and Chukwuogor vs. Chukwuogor supra. Counsel argued that being decisions of superior Courts of record, the learned trial Judge was bound to follow these decisions. Counsel urged that issue two be resolved in favour of the appellants.
ISSUE THREE:
Counsel contended under issue three that the learned trial Judge erred to have held that the application was not ripe for hearing. The question then is: When is a motion fixed or listed for hearing? Counsel answered that in the instant case the motion was fixed for hearing on the 27th day of February, 2009. On or before that date every document envisaged by the rules, especially the affidavit of service showing the names and addresses of the person served or not should, have been before the Court. It is based on compliance with these requirements that the Court would have had jurisdiction. The Court was urged to strike out the substantive application.
REASONS:
For the sake of convenience I shall consider the arguments raised under the three issues together since they all boil to whether the Court had jurisdiction or not to have entertained the substantive application. On Monday, 16th February, 2009 the Court heard the exparte application by the Respondents seeking leave to enforce their fundamental rights alleged to have been infringed by the appellants. The learned trial Judge granted leave. The Assistant Chief Registrar’s drawn order reads as follows:
“ORDER
UPER THIS MOTION EX-PARTE coming up before this Honourable Court;
AND AFTER hearing Ekpo Ntekim Esq. of Counsel for the Applicants moving with him Stella Okpalla Esq. and Ernest Akpan, Esq;
UPON THE COURT having carefully considered the application of the Applicants’ Counsel together with the statement of the Applicants and the relief sought, as well as the averments in the affidavit and the Exhibits attached thereto.
IT IS HEREBY ORDERED as follows:
(1) That leave is hereby granted the Applicants to apply to this Honourable Court for the enforcement of their fundamental rights allegedly infringed or threatened to be infringed by the Respondents. Other Prayers contained to the motion paper and relevant to this exparte application are refused.
(2) That the applicants shall file the Motion on Notice and serve same on the Respondents for their reaction if any.
(3) IT IF FURTHER ORDERED that this case is adjourned to 27th day of February, 2009 for argument.
Issued at Ikono under the seal of Court and hand of the Presiding judge, this Monday, the 16th February, 2009.”
The effect of fixing the substantive application “for argument” on the 27th day of February, 2009 was that it was for hearing on that day. When the application came up for hearing that day it became clear that only the 1st Respondent/Applicant had been served the processes. There was no affidavit setting forth the names of the parties served nor yet to be served contrary to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which provides as follows:
“(4) An affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) of this rule has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the Court or Judge on the hearing of the motion or summons.”
In Re Appolos Udo (1987) 4 NWLR (Pt.63) 120 Olatawura, JCA (as he then was) held at page 127 that:
“…I will agree with the submission in the Respondent’s brief that the provisions of Order 2 rule 1(3) are mandatory and are to be complied with by the Appellant…It is a necessary step that must be followed and failure to take the necessary steps affects the hearing of the application but not the merits of the application. In this case the application is struck out”
The failure to file an affidavit of service before the substantive application comes for hearing has always been treated by the Courts as fatal to the determination of the substantive application. See Paulinus Nwaeze vs. Commissioner of Police (2001) 1 CHR 449; Engineer General Adekunle Odofin (Rtd) vs. Inspector General of Police (2001) 1 CHR 440; Chukwuogor vs. Chukwuogor (2007) NWLR (Pt.979) 302 at 306; and Ngige vs. Achukwu (2005) 2 NWLR (Pt.909) 123.
I am of the humble opinion that this appeal succeeds. The application before the lower Court is struckout. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree entirely with the conclusion in the lead judgment that the appeal deserves to succeed. For the reasons set out therein, I also allow the appeal and strike out the Respondent’s application before the lower court.
ONYEKACHI A. OTISI, J.C.A.: I had opportunity before now of reading the Judgment of my learned Brother Joseph Tine Tur JCA just delivered. I am in complete agreement with the Judgment.
The main purpose of service is to bring to the knowledge of the other party the pendency of a suit against him and afford him an opportunity to be heard in defence. Under Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979, an affidavit verifying service on all the respondents must be filed before hearing of the substantive matter. The affidavit verifying service must be supplied by the applicant or deposed to by the applicant. The intendment of this requirement is to ensure that all respondents are given notice of the suit against them and thereby an opportunity to be heard in their defence. And, where the respondents or any one of them has not been, or, cannot be served, the reason for such failure ought to be supplied in the affidavit of service.
Compliance with this requirement has been held to be a condition precedent to the exercise of the court’s jurisdiction; and failure to comply with this provision impacts on the competence of the court. This is because once the law has prescribed a particular method of exercising statutory power, any other method of exercising the same power is excluded. Non-compliance with an enabling law has always been adjudged fundamental, and affects the jurisdiction of the court. See: ONYALI VS OKPALA (2001) 1 NWLR (Pt.694) 282 at 302; CHUKWUOGOR VS CHUKWUOGOR (2007) ALL FWLR (PT.349) 1154 at 1168 – 1169.
I therefore abide with the Orders made in the lead Judgment.
Appearances
David Ekpo, Esq.For Appellant
AND
For Respondent
