MR. XAVIER SAVIOUR ESSIEN v. THE AREA COMMANDER, POLICE HEADQUARTERS, IKOT EKPENE & ORS.
(2010)LCN/4184(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of March, 2010
CA/C/154/2008
RATIO
EFFECT OF THE FAILURE OF A PARTY TO OBTAIN THE LEAVE OF COURT WHERE HE A PARTY IT NECESSARY TO AMEND THE RELIEF OR CLAIM CONTAINED IN THE STATEMENT
Leave of court is therefore sine qua non where a party deems it necessary to amend the relief or claim contained in the Statement and failure by the Respondent to apply for leave to amend her statement and/or relief or claim renders the entire proceedings and judgment a nullity as the proceedings was not properly initiated by due process of law. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKAILU Justice of The Court of Appeal of Nigeria
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
MR. XAVIER SAVIOUR ESSIEN Appellant(s)
AND
1. THE AREA COMMANDER, POLICE
HEADQUARTERS, IKOT EKPENE
2. SGT. SUNDAY AKAM
3. MRS. CAROLINE MARTINS UKANGA Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Applicant now 3rd Respondent by her motion ex-parte filed on 26/8/05 in the High Court of Akwa Ibom State in the Uyo Judicial Division sought and obtained leave seeking the enforcement of her fundamental rights allegedly infringed upon by the 1st and 2nd Respondents and sought the following reliefs:-
(a) A declaration that arrest and detention of the Applicant by the 2nd Respondent acting on the authority of the 1st Respondent and on the instigation of the 3rd Respondent when the Applicant has not committed any offence is a violation of her fundamental rights to personal liberty and freedom of movement guaranteed under section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999, therefore illegal, unlawful and unconstitutional.
(b) An order directing the Respondents to jointly and severally pay to the Applicant the sum of N500,000.00 (Five Hundred Thousand Naira) Only damages for the wrongful violation of her rights to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
(c) An order of injunction restraining the Respondents whether by themselves, their agents, servants or persons however called from further interference in any manner whatsoever with the applicant’s enjoyment for her fundamental right to personal liberty and freedom of movement.
2. An order that the granting of leave operates as a stay of any further action, harassment, arrest, detention, intimidation or invasion of the applicant’s Fundamental Rights.
The motion ex-parte was supported by 20 paragraph affidavit deposed to by the Applicant wherein she exhibited a Medical Report marked Exh. “A”. The application was supported by a Statement describing the applicant and the reliefs sought together with grounds upon which the reliefs were being sought.
The ex-parte motion was heard by Okon J. sitting as a vacation Judge and he granted leave to the Applicant on 29/8/2005 to apply for an order enforcing or securing enforcement of her fundamental rights. She later filed a Motion on Notice pursuant to Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 1979 in the High Court of Akwa Ibom State, Uyo Judicial Division on 1st September, 2005. In the Motion on Notice she sought the following reliefs amongst others:-
(a)…
(b)An order directing the Respondents to jointly and severally pay to the Applicant the sum of N1 million (One Million Naira) damages for the wrongful violation of her rights to personal liberty and freedom of movement guaranteed under Section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
(c)…
(d) An order directing the 1st and 2nd Respondents to release to the applicant the applicant’s property to wit:
1 hair wig, 1 hand bag, 1 pair of slippers, 1 umbrella, cash sum of N5,000.00 and applicant’s National ID Card contained in the Applicant’s bag forcefully seized by the 3rd Respondent and handed over to the 1st and 2nd Respondents.
The motion was supported by 8 paragraph affidavit. The 3rd Respondent/Appellant filed a 25 paragraph affidavit in opposition and annexed two documents marked Exhs. 1 and 2 (namely Police Report on case of Assault and a Medical Form D). Arguments were taken after the applicant had filed a further and better affidavit and the trial court delivered its judgment on 31st January, 2008 and awarded the applicant N800.000.00 as damages against the 3rd Respondent for an alleged breach of her fundamental rights. Being dissatisfied with the judgment, the 3rd Respondent appealed and formulated the following five issues for determination:-
1. Whether the proceedings and judgment of the Court below was not a nullity.
2. Whether on consideration of the affidavit evidence before the Court below, the Court below as right or justified in law in awarding the sum of N800,000.00 as damages against the Appellant for the alleged breach of her fundamental rights.
3. Whether the judgment of the Court below was not perverse resulting in a miscarriage of justice.
4. Whether the Court below was justified in invoking suo motu and relying on Section 149(d) of the Evidence Act to give judgment in favour of the Respondent.
5. Whether the judgment of the court below was not tainted with bias.
In the Respondent’s brief filed on 29/4/2009 pursuant to order of court made on 28/4/2009 there are also five issues for determination namely:-
1. Whether the quantum of damages contained in the statement used in obtaining leave, being different from that as contained in the motion on notice amounts to amendment of relief.
2. Whether or not the trial court was right in awarding N800,000.00 as damages in favour of the Respondent.
3. Whether the conclusion or inference of the Trial Court was not supported by the evidence on record.
4. Whether or not a court of law is not entitled to make use of any statutory provisions of the law in deciding a matter.
5. Whether the trial court can be said to be biased at the stage of its judgment.
On issue 1, learned counsel for the appellant argued that the proceedings and judgment of the court below was a nullity because the Respondent never applied to amend her statement to raise or amend her claim or relief from 500,000.00 to N1 million.
Learned counsel for the respondent contended that the complaint borders on the quantum of damages awarded. According to her the fact that there was a difference in the quantum of damages in the motion on notice does not amount to an amendment of the relief and should not rob the court of its jurisdiction. She further submitted that the motion on notice supercedes the statement used in obtaining leave and since she had served the Appellant with the Motion on Notice, he had constructive notice of the reliefs or claims of the Respondent.
Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules provides as follows:
“(2) The court or judge may, on hearing of the motion or summons allow the statement to be amended and may allow further affidavit to be used if they deal with new matters arising out of any affidavit of any other party to the application and where the applicant intends to be allowed to amend his statement or use further affidavits he must give notice of his intention and of any proposed amendment of his statement to every other party, and must supply to every such party, copies of such further affidavits”.
Under this rule the Court is empowered to allow an amendment of the Statement and/or the relief (s) of the Applicant if an application to that effect is made and served on the other party. The Court of Appeal had cause to interpret and apply this rule in OGWUCHE v. MBA (1994) 4 NWLR (pt. 336) 75 and it held at page 86 thus:
“The court is empowered by the above order of the Rules to allow amendment to statement, affidavit, further affidavit if they deal with new matters arising from out of the affidavit and notice must be given to the other parties. Where leave must be obtained before doing an act and no such leave is obtained the action will be incompetent. See: DAHUWA V. ADENIRAN (1986) 4 NWLR (PT. 34) 264 AT 271; IFEDIORAH V. UME (1988) 2NWLR (PT. 74) 5 at p. 16; N.B.N. LTD. V. NET (1986) 3 NWLR (PT. 31) 667; ODOFIN V. AGU (1992) 3 NWLR (PR. 229) 350”.
Leave of court is therefore sine qua non where a party deems it necessary to amend the relief or claim contained in the Statement and failure by the Respondent to apply for leave to amend her statement and/or relief or claim renders the entire proceedings and judgment a nullity as the proceedings was not properly initiated by due process of law. In INAH V. OKOI (2002) 9 NWLR (PT. 773) 563, Edozie, JCA (as he then was) when dealing with a similar situation as the present case stated at page 595 thus:
“It needs to be emphasised that the essence of Order 2 Rule 2(1) is better appreciated from the second part of the provisions with, “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 reliefs set out in the statement”. It is to avoid a situation where an applicant obtains leave to seek certain grounds only to somersault in the motion on notice with different relief based on different grounds. Such an application will be rendered incompetent as was the case in OGWUCHE v MBA (1994) 4 NWLR (Pt. 336) 75″. (Underlining mine for emphasis).
The procedure under the Fundamental Rights (Enforcement procedure) Rules regarding amendment therefore does not follow the ordinary method of amendment where the Statement of Claim supercedes the claim in the Writ as learned counsel for the respondent has argued: The relief with the Respondent as Applicant claimed when applying for leave was for the Respondents to jointly and severally pay to the Applicant the sum of N500,000.00 damages for the wrongful violation of her rights to rights to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999. But when the Motion on Notice pursuant to Order 2 Rule 1 was filed on 1st September, 2005, the applicant without obtaining leave to amend the reliefs altered the amount in relief (b) and even added a new relief (d) as follows:
(b) An order directing the Respondents to jointly and severally pay to the Applicant the sum of N1million (One Million Naira) damages for the wrongful violation of her right to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
(d) An order directing the 1st and 2nd Respondents to release to the Applicant the Applicant’s property to wit: 1 hair wig, 1 hand bag, 1 pair of slippers, 1 umbrella, cash sum of N5.000.00 and Applicant’s National ID Card contained in the Applicant’s bag forcefully seized by the 3rd Respondent and handed over to the 1st and 2nd Respondents.”
It was based on the new claim that the Applicant was awarded damages of N800,000.00 This was exactly what Edozie, JCA (as he then was) warned against in INAH v. OKOI supra. I therefore resolve issue 1 in favour of the Appellant. The effect of amending the reliefs without seeking leave of court to do so has rendered the proceedings and judgment a nullity. In view of this, it is needless to consider the other issues raised in the appeal.
I find merit in the appeal and I accordingly allow it. The proceeding and judgment in Suit No. HU/MISC.348/2005 delivered on 31/1/2008 are a nullity and the said suit is hereby struck out.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Kumai Bayang Akaahs JCA. I agree with the reasons given in it and the conclusion reached thereof. For the same reasons I also allow the appeal and declare the proceeding in the No HU/MSC/348/2002 a nullity. I also make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in advance the lead judgment delivered by my Learned Brother Akaahs, JCA.
This case demonstrates in practical terms the distinction between the fundamental Rights (Enforcement Procedure) Rules on the hand and the Civil Procedure Rules on the other hand. The change from N500,000.00 in the motion exparte to N1m in the motion on notice is allowed in ordinary Civil Proceedings in which the statement of claim superseded the writ of summons provided a different case is not made therein.
In the case at hand the only claim is for N500,000.00 the claim for N1m is incompetent. The Court below compounded the matter by awarding the Respondent the sum of N800,000.00 which is in excess of N500,000.00 claimed in the motion experte.
For the above and the fuller reasons in the lead Judgments I also allow the appeal and declare the proceedings in suit No HU/MSC/348/2002 a nullity.
I make no order for costs.
Appearances
Paul A. UdohFor Appellant
AND
Lady Helen EgubeFor Respondent
