MR. MICHAEL OLADEKOYI V. INSPECTOR-GENERAL OF POLICE & ORS.
(2011)LCN/4344(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of March, 2011
CA/B/207/2004
RATIO
DATE FOR HEARING: WHETHER IT IS WITHIN THE COMPETENCE OF A LITIGANT TO DICTATE A DATE FOR THE HEARING OF AN APPLICATION
It should always be borne in mind that fixing of a date for hearing of an application of this nature, or even any motion or case for that matter, is not within the competence of a litigant. It is the duty of the court to fix and give dates for the hearing of motions, causes or matters and once a date is fixed by the court, the parties are bound by that date. See the case of ALHAJI MOHAMMED DIKKO YUSUFU & ANOR. V. CHIEF OLUSEGUN AREMU OKIKIOLA OBASANJO & 56 ORS. (2003) 16 NWLR (Pt.844) 554 at 610, where the supreme court per TOBI, JSC, made the point very clear as follows: “I think this is where the lower court, with the greatest respect, got it wrong. The court loaded into paragraph 14(2)(a) a burden the draftsman did not apportion to the appellants and a burden it cannot carry. The moment a party has filed an application in court, it is not within his power to dictate a date for the hearing of the application. As a matter of practice and rules of court, the responsibility of the party stops the moment he files the application, and the responsibility of the court begins from there in respect of fixing a date and subsequent hearing. Although an applicant may take further steps to ask for a specific date for the hearing of the application, he must succumb to the date the court gives.” PER MOORE A. A. ADUMEIN, J.C.A.
WHETHER A MOTION ON NOTICE FILED IN THE COURT REGISTRY WITHIN 14 DAYS FROM THE DATE THE MOTION EX PARTE WAS GRANTED IS COMPETENT AND CAN NOT BE STRUCK OUT BECAUSE IT WAS FIXED FOR HEARING OR HEARD OUTSIDE THE STATIONARY OF 14 DAYS
In the case of INAH & ORS. V. UKOI (supra) this Court per EDOZIE, JCA (as he then was, later JSC) held as follows: “Entering a motion on notice for hearing in the con of Order 2 (rule 1(2) of the rules can only mean filing of the motion for it to be fixed for hearing. It must be borne in mind that as at the ex parte motion for leave to enforce the fundamental right is being granted the motion on notice is not before the court and therefore could not strictly speaking be fixed for hearing. It is when it is filed that it is fixed for hearing by court official (s). I am therefore of the firm view that if the motion on notice is filed in the court registry within 14 days from the date the motion ex parte was granted that is due compliance with the sub-rule under discussion notwithstanding that the motion on notice was fixed for hearing or heard outside the stationary of 14 days.”(Underlining mine) PER MOORE A. A. ADUMEIN, J.C.A.
SUBSTANTIAL JUSTICE: DUTY OF THE COURT TO ENSURE THAT SUBSTANTIAL JUSTICE IS DONE
It is now settled that courts and Judges should emphasis substantial justice, having regard to the particular facts and circumstances of each case, instead of tenaciously clinging to interpretation of rules in such a manner that justice is slaughtered on the altar of technicalities. The duty of the court is do justice among the parties before it. PER MOORE A. A. ADUMEIN, J.C.A.
DUTY OF THE COURT: ATTITUDE OF THE COURT WHERE STRICT OBSERVANCE OF RULE OF PRACTICE WILL PRODUCE INJUSTICE
The admonition of the very eminent jurist – OPUTA, JSC in NNEJI V. CHUKWU (supra) ably cited by the learned counsel for the appellant is very instructive and relevant in this case. At pages 206 – 207 of the law report, OPUTA, JSC stated , inter alia, thus: “Also rules of court are made to help the court in its primary duty and objective, namely to do justice to the parties by deciding on the merits of their case. These rules are mere handmaids to justice and inflexibility of the rules will only serve to render justice grotesque. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merits but a technical knock-out at the expense of a hearing on the merits……………………………. If strict observance of rule of practice will produce injustice, then a court of justice will naturally prefer doing justice to obeying a rule which is no longer an aid to justice,, (underlining ours for emphasis).” PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. MICHAEL OLADEKOYI Appellant(s)
AND
INSPECTOR-GENERAL OF POLICE & ORS. Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of L. J. AKANBI, J. of the Federal High Court (Akure Division), delivered on the 23rd day of March, 2007. The appellant’s notice and grounds of appeal cover pages 64 to 66 of the record.
At the hearing of the appeal, learned counsel for the appellant – Kola Olawoye, Esq, adopted and relied on his brief of argument dated the 24th day of January, 2005 but filed on the 27th day of January, 2005 and deemed properly filed on 18/05/2005. He urged the court to allow the appeal and set aside the decision of the lower court. On the other hand, the learned counsel for the respondents adopted and relied on his brief of argument dated 20/06/2005 but filed on 22/06/2005 and urged the court to dismiss the appeal and affirm the decision of the lower court.
In his brief of argument, Kola Olawoye, Esq, learned counsel for the appellant, distilled the following issues for determination, namely:
(i) “Whether the proof of service filed by the Appellant on 17/11/03 before the Hearing of this case on 19/1/04 by the lower court satisfied the Provision of Order 2 Rule 1(a) of the Fundamental Right (Enforcement) Procedure Rules 1979?
AND OR IN THE ALTERNATIVE
Did the lower court interpret correctly the decisions in Re-Appolos Udo (1987) 4 NWLR (Pt.63) page 130 and Onyemaizu V. Ojiako (2000) 6 NWLR (Pt. 659) page 25 with regards to the time and mode for filing the proof of service provided in order 2 Rule 1(4) of the said law? (Cover grounds 1 & 3).”
(ii) Whether the decision of the lower court in striking out this case in its said Ruling is not a judgment by technicality made at the expense of the Fundamental Right of the appellant to fair hearing, equity and substantial justice? (Covers ground 2). (Pages 5 – 6 of the appellant’s brief).
On his part, A. O. Adebusoye, Esq, (Solicitor – General, Ondo State) who settled the respondents’ brief, agreed with the issues formulated by the appellant.
On Issue No. 1, counsel for the appellant argued that the cases relied upon by the lower court RE – APPOLOS UDO (1987) 4 NWLR (Pt. 63) 130 and ONYEMAIZU V. OJIAKO (2000) 5 NWLR (Pt.659) 25 were not applicable to the facts and circumstances of this case. He distinguished this case from the said cases and contented that they were not applicable to the case being considered by this Court. On this submission, he referred the court to the cases of CALABAR EAST CO – OP. V. IKOT (1999) 14 NWLR (Pt. 538) 225 at 242, and CLEMENT V. NWUANYANWU (1993) 3 NWLR (Pt. 107) 39 at 54 paras. C – F, where it was held by the Supreme Court as follows:
“Under the doctrine of Stare decisis, lower courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher court considered as furnishing an example or authority for a identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases.
Thus, prior cases which are close in facts or legal principle to the case under consideration are called precedents. The two cases (the one under consideration and the other to be used as precedent) must be close in facts – the facts must be similar for the doctrine to apply……………….
In other words, it will be dangerous to consider any pronouncement of any Court even the Supreme Court in vacuo and without reference to the peculiar facts of the cases in which those pronouncement were made as those facts framed the issues that were decided”
Learned counsel contended that even in the case of IN RE – APPOLOS UDO (supra) the court did not decide that the “affidavit of service must be filed on or before the return date”. He referred to the statement of OLATAWURA, JCA (as he then was) at pages 125 and 127 of that case.
The appellant argued that fundamental rights provisions, which are constitutional provisions, should be given liberal interpretation. He referred the court to the cases of NWOSU v. IMO STATE ENVIRONMENTAL SAN. AUTH. (1990) 2 NWLR (Pt. 135) 688 at 723, EKPENKHO V. EGBADON (1993) 7 WNLR (Pt. 308) 717 at 740 per EJIWUNMI, JCA (as he then was); NAFIU RABIU V. STATE (1980) 8 – 11 SC 130 at t49, OKOTIE-EBOH v. MANAGER (2005) ALL FWLR (Pt.241) 227 at 317 , per PATS-ACHOLONU, JSC and a host of other cases. Counsel for the appellant argued that the primary purpose of filing an “affidavit of service in any case is to enable the court to be certain and convinced that the process…… has been served” and where none is filed but the adverse party put up an appearance, as in the instance case, the filing of such proof becomes a mere surplusage which could be dispensed with. He referred to and relied on the cases of OKESUJI V. LAWAL (1991) 1 NWLR (Pt. 170) 66 at 578, per OLATAWURA, JSC and MOHAMMED v. MUSTAPHA (1995) 5 NWLR (Pt. 292) 222 at 234.
The learned lawyer representing the appellant argued that if the trial Judge had interpreted Order 2 rule 1(a) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 properly and liberally, he would not have struck out the application before him.
The argument of appellant’s counsel on the second issue is that the decision of the trial court “is tantamount to judgment by technicality”. Counsel contended that courts have a duty to do substantial justice and avoid technicality. He referred to and relied on the cases of NNEJI v. CHUKWU (1988) 3 NWLR (Pt.81) 184 at 206 – 207, Per OPUTA JSC, ANATOGU V. ANATOGU (1997) 9 NWLR (Pt. 519) 49 at 67; BELLO & ORS. V. A- G, OYO STATE (1986) 12 SC 1 at III and OLOWOKERE V. AKINSIKU (2004) ALL FWLR (Pt.202) 1970 at 1988.
Counsel for the appellant finally urged the court to allow the appeal and set aside the decision of the trial court.
In the respondents’ brief, A.O. Adebusoye, Esq, (Solicitor General of Ondo State) contended in respect of issue No.1 that the facts of this case are substantially similar to the facts in RE -APPOLOS UDO (supra) and ONYEMAIZU V. OJIAKO (supra) “with regards to time and mode of filing of Affidavit of proof of service provided for in Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 which is the crux of this appeal.”
Counsel contended that Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 is identical with Order 37 rule 5(4) of the High Court of Anambra State (Civil Procedure) Rules, 1988 which was interpreted in the case ONYEMAIZU V. OJIAKO’S case. He argued that the facts of this case are also similar to the facts of OYEMAIZU’s case.
Mr. Adebusoye argued that the word “must” used in order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules connotes compulsion with no room for discretion and it was incumbent upon a litigant to comply with it. He relied on the case of AJEWOLE V. ADETIMO (1994) 3 NWLR (Pt. 335) 739 at 757. The learned counsel argued that since the rule under consideration does not provide a cure for any defect, it must accordingly be complied with. He referred the court to the case of CLEMENT v. NWUANYANWU (1993) 3 NWLR (Pt. 107) 39 at 54.
Counsel for the respondents referred to order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and contended that the affidavit ought to have been filed before the motion could be listed for hearing “and not before it could be heard”. He referred the court to the case of BRAITHWAITE V. C.D.M. (1998) 7 NWLR (Pt. 557) 307 at 333 and contended that the words used in order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules are clear and unambiguous and should be given their literal meanings.
The counsel for the respondents contended that the “return date” in fundamental rights enforcement cases is “a hearing date just like is done under undefended list cases”. He referred to the case of ALALE v. OLU (2000) FWLR (Pt. 23) 1294 at 1307 where this court held as follows:
“In an action placed on the undefended list, the return date and any subsequent adjourned date is always taken as the date fixed for hearing until judgment is entered or the suit transferred to general cause list.”
The learned lawyer representing the respondents argued that the cases cited and relied upon by the appellant’s counsel were irrelevant and inapplicable to this case.
On the second issue Mr. Adebusoye contended that the appellant’s argument was misconceived because a breach of order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules is not a “mere irregularity because the rule does not provide a remedy for its breach.” He referred the court to the case of ONYALI v. OKPALA (2000) FWLR (Pt.3) 495 at 514 where this court held thus:
“It is trite that once the law has prescribed a particular method of exercising a statutory power, any other method of exercising same is excluded. Non-compliance with such a prescribed method is held to affect the foundation and root of the matter. The lapse is beyond mere irregularity.”
Counsel further referred the court to the cases of ASORE V. LEMOMU (1994) 7 NWLR (Pt. 356) 284 at 291; SKENCONSULT (NIG.) LTD. V. UKEY (1981) 1 SC 5 and MADUKOLU v. NKEMDILIM (1962) 2 SCNJ 341.
Learned counsel for the respondent argued that the case of NNEJI V. CHUKWU (supra) cited by the appellant did not apply to this case because under the Court of Appeal Rules, this Court could, in the interest of justice, waive non-compliance with any of its rules.
Counsel for the respondents finally urged the Court to dismiss the appeal.
In the lower court, the appellant was granted leave to apply for the enforcement of his fundamental rights. Pursuant to the leave granted to him, the appellant proceeded to file a motion on notice as required by the Fundamental Rights (Enforcement Procedure) Rules, 1979. The said motion on notice together with the statement, affidavits and exhibits in support thereof cover pages L5 to 29 of the record of appeal. The respondents filed a counter affidavit in opposition and the said counter affidavit was deposed to on their behalf by one Supol Babatunde Akesode. The counter affidavit covers pages 30 to 34 of the record.
The record of appeal shows that the substantive motion on notice was fixed for the 26th day of March, 2003 for hearing by ABDU-KAFARATI, J. when the motion ex parte for leave to apply for the enforcement of the appellant’s fundamental rights was heard and granted. This was on the 14th day of March, 2003. In his ruling the learned Judge stated thus:
“Application for leave granted to the applicant to apply for the enforcement of his fundamental right.
2. It is further ordered that the Respondents especially the 4th and 5th Respondents should takes (sic) the applicant to the Federal Medical Center Owo or any Government Hospital in Owo or Akure for treatment pending the hearing of the motion on notice.
Case adjourns (sic) to 26/3/2003 for hearing.”
(Pages 50 and 51 of the record of appeal).
On 26/3/2003 the counsel for all the parties were present in the court below. The matter was further adjourned to 14/4/2003 from 26/3/2003. Mr. Adekola Olawoye appeared for the appellant while Mr. Nwodibo Ekechukwu appeared for the 1st, 3rd, 4th and 5th respondent. The 2nd respondent was represented by Mr. Ade Ogunjobi (PLO). (Pages 54 and 55 of the record of appeal).
The matter could not be heard until the learned trial judge raised the issue of jurisdiction on the 29th day of October, 2003 and adjourned the case to 19/11/2003 for hearing on this issue (page 57 of the record). There is nothing to show what happened on 19/11/2003. Meanwhile, on 19/01/2004, the counsel for the 1st, 3rd, 4th and 5th respondents-J.C.A. Idachaba, Esq, filed a notice of preliminary objection that the lower court lacked jurisdiction to entertain the matter on the ground of non-compliance with the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules (Page 49 of the record), The said preliminary objection was heard on that same day – 19/01/2004 (pages 58 – 60 of the record).
On the 23rd of March, 2004 the appellant’s action or motion on notice for the enforcement of his fundamental right was struck out based on the said preliminary objection of the 1st, 3rd, 4th and 5th respondents. (pages 61 – 63 of the record).
Having regard to the facts of this case, as summarized above, the heavy reliance on the cases of ONYEMAIZU V. OJIAKO (supra) and RE: APPOLOS UDO (supra) by the trial court is quite unfortunate. The lower court, having ordered the matter to be fixed for hearing on 26/03/2003, even when the substantive motion on notice had not been filed, could not somersault and nullify the same process merely because the affidavit, required under order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, was not filed before the motion was listed for hearing.
The Order of the trial court made on the 14th day of March, 2003 fixing the appellant’s motion for hearing on 26/3/2003 effectively listed the motion for hearing and it was, under such circumstances, impossible for the appellant to file ‘the affidavit “giving the names and addresses of, and the place and date of service on, all the persons who have been served with the motion…….before the motion …..is listed for hearing” (order 2 rule 1(4) of the Fundamental Rights (Enforcement procedure) Rules, 1979.
It should always be borne in mind that fixing of a date for hearing of an application of this nature, or even any motion or case for that matter, is not within the competence of a litigant. It is the duty of the court to fix and give dates for the hearing of motions, causes or matters and once a date is fixed by the court, the parties are bound by that date. See the case of ALHAJI MOHAMMED DIKKO YUSUFU & ANOR. V. CHIEF OLUSEGUN AREMU OKIKIOLA OBASANJO & 56 ORS. (2003) 16 NWLR (Pt.844) 554 at 610, where the supreme court per TOBI, JSC, made the point very clear as follows:
“I think this is where the lower court, with the greatest respect, got it wrong. The court loaded into paragraph 14(2)(a) a burden the draftsman did not apportion to the appellants and a burden it cannot carry. The moment a party has filed an application in court, it is not within his power to dictate a date for the hearing of the application. As a matter of practice and rules of court, the responsibility of the party stops the moment he files the application, and the responsibility of the court begins from there in respect of fixing a date and subsequent hearing. Although an applicant may take further steps to ask for a specific date for the hearing of the application, he must succumb to the date the court gives.”
Having regard to the circumstances of this case, the trial court would have been seen to have done justice to the parties if it held the view that the affidavit ought to have been filed before the hearing of the motion. This would have been more sensible and in line with the statement of the erudite jurist, OLATAWURA, JCA (as he then was, later JSC) in RE: APPOLOS UDO (1987) 4 NWLR (Pt. 63) 120 at 126:
“…….it is therefore my view that the affidavit must be filed and sworn to by the Appellant before the motion can be heard ……………” (Underlining mine)
In my view, filing and service of the affidavit setting out the names of the persons served together with the dates and places of service constitute a condition precedent to the “hearing” of the application and such an interlocutory affidavit ought not operate to vitiate or nullify the substantive originating motion for the enforcement of an applicant’s rights
In any case, I completely agree with Mr. Olawoye, learned counsel for the appellants that the facts of this case are clearly distinguishable from the facts of the cases of RE: APPOLOS UDO (supra) and ONYEMAIZU V. OJIAKO (supra). In RE: APPOLOS UDO (supra) service of the application was effected on a person who was not party to the proceedings while the actual respondents were not served with the processes. In the case of ONYEMAIZU V. OJIAKO (supra) the verifying affidavit was not filed until about two and a half months after the preliminary objection challenging the competence of the action was argued. At page 44 of the judgment, these facts were clearly set out by OLAGUNJU, JCA, who read the lead judgment, as follows:
“From pages 54 – 56 of the record the motion was set down for hearing on 13/10/94 preliminary objection challenging the competence of the action taken and argued on 25/4/95 but the verification affidavit was filed on 17/7/95. That was well over 9 months after the motion was entered for hearing and over two and half months after learned Senior Advocate for the respondents argued the preliminary objection.”
The facts and circumstances of the cases of RE: APPOLOS UDO (supra) and ONYEMAIZU V. OJIAKO (supra) were such that the motions could not be saved for there was absolute non-compliance with the requirement of filing the verification affidavits. In the present case, the verifying affidavit was filed and served but this was done after the substantive motion had been listed for hearing, As stated earlier, the case was listed for hearing by an order of the trial court, even before the substantive motion on notice was filed. Under the circumstances of this case, the interest of justice would have been better served by the trial court hearing the parties and determining the case on its factual and legal merits.
The learned counsel for the respondents contended strongly that the word “must” used in order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 makes it mandatory or compulsory for the verification affidavit to be filed before the motion or summons is listed for hearing. He argued that failure to file the affidavit before listing the motion/summons for hearing would be such non-compliance that denied the court the jurisdiction to entertain the motion.
The provisions of Order 2 rule of the Fundamental Rights (Enforcement Procedure) Rules, 1979 must be read together.
The procedural steps are as follows:-
1. After leave has been grant, the applicant must apply for the relief sought by motion on notice or summons (sub-rule (1);
2. There must be at least eight clear days between the service of the motion or summons and the day named therein for hearing, unless otherwise ordered (sub-rule (1);
3. The motion must be entered for hearing within 14 day after the leave was granted (sub-rule (2);
4. The motion or summons must be served on all persons directly affected (sub-rule (3);
5. 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 (sub-rule (4);
6. The affidavit must state the fact and reason why service has not been effected, if any, on any person directly affected (sub-rule (4); and
7. The said affidavit shall be before the court or judge on the hearing of the motion or summons (sub-rule (4);
I have underlined the word “must” for the purpose of emphasis.
As stated above, Order 2 rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 provides thus:
The motion or summons must be entered for hearing within fourteen days after such leave has been granted. (Underlining mine).
The question can be asked – Will a motion filed by an applicant be incompetent and liable to be struck out because it was not entered or fixed for hearing within 14 (fourteen) days after leave was given? The answer was given by this Court in the cases of ATTORNEY-GENERAL OF THE FEDERATION V. AJAYI (2000) 12 NWLR (Pt. 682) 509 and INAH & ORS. V. UKOI (2003) FWLR (Pt. 143) 382. In the case of INAH & ORS. V. UKOI (supra) this Court per EDOZIE, JCA (as he then was, later JSC) held as follows:
“Entering a motion on notice for hearing in the con of Order 2 (rule 1(2) of the rules can only mean filing of the motion for it to be fixed for hearing. It must be borne in mind that as at the ex parte motion for leave to enforce the fundamental right is being granted the motion on notice is not before the court and therefore could not strictly speaking be fixed for hearing. It is when it is filed that it is fixed for hearing by court official (s). I am therefore of the firm view that if the motion on notice is filed in the court registry within 14 days from the date the motion ex parte was granted that is due compliance with the sub-rule under discussion notwithstanding that the motion on notice was fixed for hearing or heard outside the stationary of 14 days.”(Underlining mine)
As can seen from the above – quoted statement of this Court, Fundamental Rights Enforcement Rules, which are a creation of the Constitution ought not to given restrictive and constrictive interpretation notwithstanding that the word “must” is used in couching some of the rules. It is now settled that courts and Judges should emphasis substantial justice, having regard to the particular facts and circumstances of each case, instead of tenaciously clinging to interpretation of rules in such a manner that justice is slaughtered on the altar of technicalities. The duty of the court is do justice among the parties before it.
Having regard to the peculiar facts and circumstances of this case, the ends of justice would have been best served by hearing the appellant’s application on its merit as the respondents were not prejudiced in any way by the failure of the appellant to file the verification affidavit before the motion was listed for hearing.
The admonition of the very eminent jurist – OPUTA, JSC in NNEJI V. CHUKWU (supra) ably cited by the learned counsel for the appellant is very instructive and relevant in this case. At pages 206 – 207 of the law report, OPUTA, JSC stated , inter alia, thus:
“Also rules of court are made to help the court in its primary duty and objective, namely to do justice to the parties by deciding on the merits of their case. These rules are mere handmaids to justice and inflexibility of the rules will only serve to render justice grotesque. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merits but a technical knock-out at the expense of a hearing on the merits. ……………………………
If strict observance of rule of practice will produce injustice, then a court of justice will naturally prefer doing justice to obeying a rule which is no longer an aid to justice,, (underlining ours for emphasis).”
I have said enough, without more, I hold the view that this appear has merit and it ought to be allowed.
The appeal is hereby allowed and the decision of the lower court striking out the appellant’s motion is hereby set aside.
The lower court, presided over by another Judge, is hereby directed to hear and determine the appellant’s motion on its merits.
The sum of N50,000.00 (Fifty thousand naira only) is hereby awarded as costs in favour of the appellant against the respondents.
NWALI SYLVESTER NGWUTA, J.C.A.: On 14/3/2003 the Court below granted the appellant leave to apply to enforce his fundamental right. The Court did not stop there but adjourned the matter to 26/3/2003 for hearing, notwithstanding that the motion on notice was yet to be filed. In effect the trial Court fixed a return date for a motion not yet filed. The trial Court made it practically impossible for the appellant to file the affidavit required under order 2 rule 1 (4) of the Fundamental Rights (Enforcement Rules) 1979 before the motion on notice is fixed for hearing. And to worsen a bad situation the trial Court struck out the motion for failure of the appellant to file the affidavit before the motion was listed for hearing even though the appellant was not to blame.
In any case the rules are handmaids of the law and as held by Oputa JSC in Nneji v. Chukwu (1988) 3 NWLR (pt 519) 49 at 67 (one of the cases relied on by learned Counsel for the appellant) the rules of Court are made to help the Court do justice to the parties by deciding on the merit of their cases. The purpose of affidavit of service is to enable the Court ascertain the fact of service on all concerned and representation of all parties should have satisfied the Court, in the peculiar circumstance its unwittingly created, that service was effected on all the parties and the trial court should have heard the matter and determine same on the merits. This was a technical knock out which has no place in the justice delivery system. “Let no man walk out of our Courts disappointed in the administration of justice. He will prefer to loose the case on its merits than to allow an opponent will by default…..” See Allen v. Sir Alfred McAphine & Sons Ltd 1968 2 QBD 229/245,34B per Lord, Denning.
The lower Court was not left in doubt as to the redress sought by the appellant. The Court should not have allowed the tail to wag the dog, as it were. The Fundamental Rights (Enforcement Rules) 1979 are not intended to be exhaustive and exclusive and they do not oust resort to normal procedure for seeking redress in the Court. It is a negation of justice to prevent the appellant from seeking redress because of an imagined faulty procedure.
It is for the above and the fuller reasons in the lead Judgment of my Lord Adumein JCA which I read in advance, that I also allow the appeal. I adopt the consequential orders, including the order for costs, made in the lead judgment.
CHINWE E. IYIZOBA, J.C.A.: I have read before now the judgment just delivered by my learned brother, Adumien J.C.A and I agree with the reasoning and conclusions reached in the judgment notwithstanding that the appeal court case of Onyemaizu v. Ojiako (2000) 5 NWLR (Pt.659) 25 eventually got to the Supreme court and was again reaffirmed. It is reported in (2010) 4 NWLR (Pt 1185) 504. I agree with my learned brother that this appeal before us is distinguishable from Re Appolos Udo (1987) 4 NWLR (Pt.63) 130 and Onvemaizu.
Although the lower court listed the case for hearing on 26/3/03 when the motion on notice had not been filed, that is what the law requires the court to do as the motion on notice must be entered for hearing within fourteen days after leave was granted – Order 2, Rule 1(2) of the Fundamental Rights Rules. The trial court may be unable to comply with Order 2 rule 1(2) it it waited for the applicant to file his motion on notice and affidavit of service before entering the motion for hearing. At any rate, it is unnecessary to wait as the case must be adjourned to be heard within 14 days of the date leave was granted. The usual practice is to give the 14th day as the date of hearing. It is quite obvious that time is extremely of the essence in these applications. But an applicant will be unable to comply with the requirement of order 2 rule 1(4) if the provision is given its literal interpretation. If the trial judge must list the case for hearing within fourteen days from the date leave is granted, then once this is done, the affidavit of service cannot possibly be filed before the motion is listed for hearing. The usual practice however is to file and place the affidavit before the court before the date fixed for hearing. In Monye v. P.T.F.T.M. (2002) 15 NWLR (Pt.789) 209, the court of appeal Lagos Division per Oguntade JCA as he then was stated some home truths about this Fundamental Rights (Enforcement Procedure) Rules. The learned Jurist in the case opined that while Order 2 rule 1(2) was intended to ensure that all proceedings touching on the enforcement of fundamental rights are expeditiously heard and disposed of, the purpose was defeated by the self same Rules when no provision was made for the proceedings to be disposed of within a specified period.
“With Order 2, rule 2 (sic order 2 rule 1(2)) of the Fundamental Rights (Enforcement Procedure) Rules as it stands, a trial court may fix the hearing of the motion on notice after the grant of leave within 14 days and yet not dispose of it for many years as the rules do not impose a time limit for the periods of subsequent adjournments after the first date of hearing following the grant of leave.”
In view of this serious omission, his Lordship was of the view that the words “must” and “shall” in the law should not be interpreted as mandatory as the con in which they are used do not give room for such interpretation without causing undue hardship and injustice on the applicant. After all, these rules of court must be consistent with fundamental principles of justice and must not be slavishly applied by the courts. The requirement of filing affidavit of service is to ensure that the respondents were actually served and that if they were not, the affidavit should say so, in order to enable the court grant further adjournment for service. In this case, the respondents were served. They were all represented when the case came up for hearing on 26/3/03 as shown on page 54 of the record of appeal. Mr. Nwodibo Ekechukwu appeared for the 1st, 3rd – 5th respondents. Mr. Ade Ogunjobi(PLO) appeared for the 2nd respondent. Mr. Ekechukwu asked for adjournment because the file had just been given to him so he could file a counter- affidavit. The case was then adjourned to 14/4/03. On 14/4/03 all the parties were again represented. Mr. Olawoye for the applicant said the matter was for hearing and that they were ready. Mr. Ekechukwu for the 1st, 3rd – 5th respondents again asked for adjournment to enable him file their counter affidavit. The case was adjourned to 29/4/03. See page 55 of the record of appeal. The 1st, 3rd – 5th respondents filed a joint counter affidavit on 21/7/03. There was no record of what transpired subsequently until 9/10/03 when the case was called up before a new Judge Akanbi J. Apart from the applicant all the other parties and their counsel were absent. The case was adjourned to 29/10/03. See Page 55 record of appeal. On 29/10/03, the applicant and his counsel were present, the respondents and their counsel were absent. Akanbi J. raised the issue of compliance with Order 2 rule 1(4) of the Fundamental Rights (EP) rules suo motu. Mr Olawoye for the applicant said he would address the issue at the next adjourned date. The case was then adjourned to 19/11/03. On that 29/10/03 he filed a further affidavit countering the averments in the counter-affidavit of the respondents. On 17/11/03, both the applicant and his wife deposed to affidavits of service on all the respondents. They were all served before the date fixed for hearing of the motion on notice that is 26/3/03. Applicant’s wife accompanied the bailiff to effect service as the applicant was then in hospital receiving treatment for the gunshot wounds. There was again no record of what transpired on 19/11/03 or any other date until 19/1/04. On that date Idachaba J.C.A. who has now taken over as counsel for the 1st, 3rd & 5th respondents filed a notice of preliminary objection claiming that the court lacked jurisdiction to entertain the suit on the ground of failure by the applicant to comply with order 2 rule 1(4) – non-filing of affidavit of service before 26/3/03. The preliminary objection was heard on that 19/1/04 and adjourned for ruling to 23/03/04 when the objection was upheld and the case struck out following the cases of Re Appolos Udoh and Onyemaizu. lt is important to point out here that by Order 1 Rule 3(1) of the Fundamental Rights (EP) Rules, leave shall not be granted unless the application is made within 12 months of the date the cause of action arose. The cause of action here arose on 7/3/03 when the applicant was shot and detained by the Respondents. By 23/03/04 when the objection was upheld and the case struck out, he could no longer re-file the application because it had become statute barred. I went through the trouble of placing on record details of the history of this application in order to show that there was a deliberate attempt to ensure that when the case is thrown out, the applicant would be unable to file another application. Why did the respondents wait until 19/1/04 to raise their preliminary objection after participating in the proceedings for 10 months – a fundamental rights case where time is of the essence?
This case is distinguishable from Re Appolos Udo and Onyemaizu in the following areas:
1. In Re Appolos Udo, the processes were served on a person who was not a party to the proceedings while the actual respondents were not served and objection was raised timeously. In Onyemaizu, the affidavit of service was filed on 17/7/95 two months after the preliminary objection was argued on 25/4/95. In this case, all the respondents were actually served before the date fixed for hearing and they were all represented in court on the date fixed for hearing. The preliminary objection was not raised timeously and the respondents had taken steps severally by filing counter affidavit before raising the objection. Most importantly, the affidavit of service was deposed to and filed before the preliminary objection was filed and before actual hearing.
2. It is necessary to consider the facts of the cases. In Re Appolos Udoh the applicant was seeking an order to enforce his fundamental rights by prohibiting the respondents from arresting him to answer to charges under the Recovery of Public Funds & Property (Special Provisions) Edict. In Onyemaizu, the appellant was convicted of stealing by the 1st respondent in his capacity as Chief Magistrate. Instead of appealing against the conviction, the appellant applied in the High court for an order of certiorari to quash the judgment of the chief magistrate. In this appeal before us, the allegation against the respondents is that some police men under their command, management and control came looking for the appellant under the pre that they wanted to arrest him in connection with some political violence in Owo which according them eventually led to the killing of one Kunle Adeleye on 16/2/03. In the attempt to arrest the appellant the mobile police men shot indiscriminately into the air, caught up with him, shot him at close range and inflicted grievous wounds on him and during the chase, killed a nine month old baby Mathew Oluyemi who was being breast fed by his mother and also wounded the mother. They bundled the appellant into their vehicle, took him to Owo and locked him up in their cell at the police station, hence the filing of this application. The entire incident was widely covered in the press.
It is thus clear that this case is very different from Re Apolos Udo and Onyemaizu. Technicality should not be allowed to becloud the merits of the case. Rules of procedure are made for the convenience and orderly hearing of cases, in court. They are made to help the course of justice and not to defeat justice. Courts cannot follow these rules slavishly even when it is obvious from the facts of the particular case that the rules are unnecessary. All the respondents were duly served even before the date fixed for hearing and they were all represented in court and did not complain at any point that they were not served. See Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661 per Olatawura J.S.C. (as he then was):
“The purpose of affidavit of service is to convince the court that persons on whom the processes are to be served have been duly served. Where there is no affidavit of service and the persons served with the writ or any process of court appears in court, there cannot be a better proof than the appearance in court of the person on whom the process was served.”
The affidavit of service was eventually deposed to and filed even before the preliminary objection was raised. The respondents clearly suffered no miscarriage of justice. The respondents tried to steal a match on the appellant. A court of justice surely should not be a party to such injustice. While some courts are still insisting on these unwarranted technicalities in fundamental rights cases, others have since moved away from it. See Monye v. P.T.F.T.M. (supra). Happily all these vexatious technicalities have been completely abrogated in the Fundamental Rights (Enforcement Procedure) Rules 2009. Fundamental rights cases ought to be heard on their merits. For these reasons and the more detailed reasons in the lead judgment, I also allow the appeal. I abide by all the orders made in the lead judgment including the order as to costs.
Appearances
Kola Olawoye, Esq.For Appellant
AND
A. O. Adebusoye, Esq.For Respondent
