ONU MAZI ONOWU ANTHONY OBIAGBASO ENUKEME v. DIDACUS (2014)

ONU MAZI ONOWU ANTHONY OBIAGBASO ENUKEME v. DIDACUS

(2014)LCN/7719(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of June, 2014

CA/OW/217/2012

RATIO

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT ENFORCEMENT PROCEDURE; THE NATURE OF THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE

I must start by stating the obvious, that fundamental rights enforcement procedure is sui generis, being specially and specifically designed, with its own unique rules by the constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement procedure) Rules of 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to Applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications.

The preamble to the Fundamental Rights (Enforcement Procedure) Rules (FREPR) 2009, particularly 1, 3(a), (b) and (d), state as follows:

“(1) The court shall constantly and consciously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule …

(3) The overriding objectives of these Rules are as follows:

(a) The Constitution, especially chapter iv, as well as the African Charter, shall be expansively, and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them.

(b)…

(c) For the purpose of advancing but never for the purpose of restricting the Applicant’s Rights and freedoms, the court may make consequential orders as nay be just and expedient.

(d) The court, shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented….” per. ITA G. MBABA, J.C.A.

COURT: PRACTICE OF THE COURT; THE PRACTICE OF THE COURT WHERE THERE ARE TWO APPLICATION BEFORE COURT, ONE TO ‘KILL’ THE SUIT BY STRIKING IT OUT OR DISMISSING IT, THE PRACTICE OF COURT TO HEAR TWO OPPOSING APPLICATIONS TOGETHER AND THE PRACTICE OF THE COURT TO HEAR MOTIONS/OBJECTIONS RAISED AGAINST THE HEARING OF A SUIT, TOGETHER WITH THE SUBSTANTIVE MATTER

It is a well known principle of law and practice, that where there are two application before court, one to ‘kill’ the suit by striking it out or dismissing it, because of a curable defect, and the other to give life to the case, by correcting the defect (if curable), then the court has to go for the latter and save the suit, to be heard on the merits. See the case of ANAZONWU v. ILOEGBU (2013) LPELR – 21204 (CA) and AG. FED vs. ONIKOYI (2006)18 NWLR (Pt. 1010) 57.
It is also the practice of court to hear two opposing applications together, where the party seeking to end the case is not ready to reconsider his position, on being served with the application to breathe life into the suit and withdraw his objection, in which circumstance he would be rewarded with cost to compensate for his filings. In such circumstances, the trial court is enjoined to save the suit, and its ruling will rather focus more on giving life than destroying it.

It is also a common practice, now, to hear motions/objections raised against the hearing of a suit, together with the substantive matter, where time is of the essence, to determine the substantive matter. This practice has been in-corporated into hearing of election petitions. See Section 38 (5) of the Electoral Act 2010, as amended.
“A Respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition.”
Order VIII of the FREPR 2009 makes similar or more elaborate provisions, empowering the trial court to hear the substantive suit along with any objection raised by the Respondent to the application. It states:
“(1) Where the Respondent is challenging the court’s jurisdiction to hear the application, he may apply to the court for an order striking out the suit or setting aside the proceedings
(2) The Respondent’s Notice of preliminary objection must be fired along with the counter affidavit to the main suit.
(3) Where the Respondent elects, not to file a counter affidavit to the main application, the court shall presume that the Respondent had accepted the facts as presented by the Applicant.
(4) On the date of hearing, the preliminary objection shall be heard along with the substantive application
(5) The court after hearing the application may make any of the following orders:
(a) striking out the application for want of jurisdiction; or
(b) setting aside the service of the originating application.
Where the court does not decline jurisdiction, the court shall go ahead to give its Ruling on the substantive application.” per. ITA G. MBABA, J.C.A.

Before Their Lordships

IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria

ITA G. MBABAJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

Between

ONOWU ANTHONY OBIAGBASO ENUKEME
(For himself and on behalf of TONIMAS NIG. LIMITED)Appellant(s)

AND

DIDACUS ONU MAZI
(For himself and on behalf of DINCO NIG. LIMITED)Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Abia State High Court, in suit No. A/M83/2011, delivered by Hon. Justice T.U. Uzokwe on 9/5/2012, wherein the learned trial Court entered judgment for the Applicant (now Respondent), as follows:

(a) It is hereby declared that the Applicant is entitled to be heard by a court of competent jurisdiction, having been served with the statutorily required Notices to quit and seven days Notice of Owners Intention to apply to recover possession of the space occupied by him.

(b) It is also declared that the Applicant’s Rights is likely to be infringed should the Respondent use self help method to eject him from stand B6 space presently occupied by for which the Respondent have (sic) issued him statutory Notices.

(c) The Respondents, their agents, assigns, privies, servant, executors etc. are hereby restrained from resort to self help in ejecting the Applicant from the said space until the final determination of the recovery of possession matter in a court or competent jurisdiction.

(d) The Applicant is entitled to the cost of this suit which I assess at N10,000.00.”

Before the decision, Appellant (as Respondent at the court below) had filed a preliminary objection to the suit on 1/7/2011, saying that the originating application by the Respondent did not include “Statement” which Order 11 Rule 3 of Fundamental Rights (Enforcement Procedure) Rules, 2009, stipulates to be part of the originating process of application to enforce fundamental rights, and praying that the suit be struck out for incompetence. The Appellant also filed a counter affidavit to the action and also raised the defect, highlighted above.

On being served with the motion on notice of the preliminary objection, the Respondent filed application to amend the originating process on 8/7/201, saying that the “statement” was inadvertently omitted at the coupling of the processes when filing the originating processes on 6/6/2011. Ruling on the two applications (that is, to strike out the suit for the defect or to cure the defect, by the application to amend), the trial court held:

“A careful perusal of the statement shows that it was indeed filed along with the other processes on the 6/6/2011 and the appropriate fees paid. I have no option therefore but to grant Applicant’s application for the order of this court to deem service of his statement filed along with other processes in this suit as properly filed and served, the appropriate fees having been paid.” Page 84 of the Records

That ruling was taken together with the final Ruling on the main suit. Appellant’s appeal is against the whole decision of the trial court.
See the Notice of Appeal on pages 89 to 94 of the Records of Appeal, filed on 2/8/2012, which disclosed 5 grounds of appeal. Appellant filed his Brief of Argument on 25/9/12 and distilled four issues for determination, as follows:

“(1) Whether, having regard to the provisions of Order 11 Rule 3 and Order iv Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 2009, the Court below was right when it entered judgment in favour of the Respondent and awarded cost of N10,000.00 against the Appellant, based on the Respondent Originating Application dated 6th June, 2011 for the enforcement of his Fundamental Right, notwithstanding the Appellant’s Notice of Objection and the Findings of the same court that no “Statement” was filed by the Respondent in support of the Originating Application. (Grounds 1 and 5)

(2) Whether the Court below was right when it never gave Ruling on the Appellant’s Motion on Notice dated 1st July 2011, which raised preliminary objection to the Respondent’s Originating Application and whether the Court below was right when it granted the Respondent’s Motion filed on 8th July 2011, which was improperly constituted, in place of the Appellant’s said Motion on Notice for Preliminary Objection. (Ground 2)

(3) Whether the Appellant’s right to fair hearing was not breached when the trial court granted the Respondent’s Motion on Notice dated 8th July, 2011 deeming the service of the Respondent’s detached “Statement” on the Appellant regular in the course of delivering judgment in this suit and proceeded (sic) the same time to deliver judgment in favour of the Respondent by relying on the same “Statement” without giving the Appellant the opportunity to respond to the new processes deemed to have been served on the Appellant in the course of delivering judgment. (Ground 3)

(4) Whether the court below is justified when in the course of delivering judgment in this suit, it struck out the Appellant’s counter Affidavit, suo motu, for being filed out of time without leave of the court, when such fundamental issue was not raised as an issue by either of the parties to this suit and without carling on the parties to address him on that fundamental issue. (Ground 4)

Appellant also filed a Reply Brief on 29/10/12, upon being served with the Respondent’s Brief, and Respondent’s Notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the court below.

The Respondent’s Notice was deemed duly filed on 15/4/13, while Respondent’s Brief was filed on 16/10/2012, and within time. The Respondent, it is apparent, adopted the issues as distilled by the Appellant, without expressly stating so, as Respondent’s counsel argued the appeal in line with the Appellant’s issues. At the hearing of the appeal on 28/5/14, counsel adopted their briefs and urged us, accordingly.

Arguing Issue one, Appellant’s Counsel, M.U. Uzoma Esq (who settled the brief) relied on the case of Madukolu vs. Nkemdilim (1962) 2 SC NLR 341 at 343 on what makes a suit competent for a court to exercise jurisdiction. He submitted that going by Order 11 Rule 3 and Order IV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Respondent’s application was not competent for the court to exercise jurisdiction; that it was not commenced with valid originating processes. He relied on KIA vs. OGUNMOLA (2006)13 NWLR (Pt. 997) 377 at 394 and ADENIYI vs. I.G.P. (1997) 1 FHCLR 278 at 280 – which emphasized the need to file “statement setting out the name and description of the applicant, relief sought, the grounds upon which the reliefs are sought…” as necessary document to make valid originating process in fundamental rights proceedings; he said that failure to comply with same renders the action incompetent. He argued that Respondent’s statement (which the court deemed as duly filed) was not part of the original process, filed by the Respondent. He relied on pages 83 – 84 of the Records, where he said, the court had made findings that “no statement was filed”.

Counsel argued that that failure could not be remedied by Respondent’s motion, filed on 8/7/11; that the affidavit in support of that motion was deposed to by counsel’s secretary, who was not a party to the suit; that the ‘statement’ sought to be deemed, was belated and, considering the fact that the suit Number thereon was typed-written (not hand written) showed it was not part of the originating processes.

Counsel also submitted that by Order iv Rule 1 of the Fundamental Rights (EP) Rules, 2009, an application shall be fixed for hearing within 7 days, from the date the application is filed, but that the Respondent’s application, which was filed on 6/6/2011, was fixed for hearing on 1/8/11 – a period of 61 days from the date of filing. He submitted that failure to comply with that provision renders the proceedings a nullity and should be struck out, because the trial court lacked jurisdiction to hear it. He relied on Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt. 518) 635 at 656 Ogwuche & Ors. vs. Mba & Ors (1994) 4 NWLR (Pt. 336) 75 at 85 (founded on Order 2 Rule 1 (2) of Fundamental Rights (Enforcement Procedure) Rules 1979 (equivalent of Order iv Rule 1 of the 2009 Rules.

On issue 2, Counsel submitted that the court has a duty to hear an application pending before it and to rule on it, one way or the other; that the court has no discretion in the matter. He relied on FAAN vs. WES NIG LTD (2011)8 NWLR (Pt. 1249) 219 at 237; UMMAN vs. K.S.H.A (2007) 11 NWLR (Pt. 1044) 148 at 190; TOMTEE NIG LTD v. FHA (2009)18 NWLR (Pt. 1173) 358.

Counsel said that the trial court never ruled, one way or the other. On the Appellant’s motion on Notice filed on 4/7/2011 raising preliminary objection to the competence of Respondent’s suit; that the motion was neither struck out, nor granted, nor dismissed; that the court had ruled on the Respondent’s motion of 8/7/11 and deemed Respondent’s ‘Statement’ as duly filed and served but refused to rule on Appellant’s motion. Even then, Counsel submitted that the decision of the trial court, deeming the statement of Applicant as duly filed and served, negated the court’s earlier findings, that no statement was filed; he said that it is trite law that the decision of a court of law cannot contradict its findings. He relied on Yakubu vs. Chief of Naval Staff (2004)1 NWLR (Pt. 853) 94 at 116. Counsel, again, added that Respondent’s motion of 8/7/11 could not be a remedial application to cure the substance of Appellant’s preliminary objection, because the Originating Application was inherently defective; that where an originating process is incurably defective it cannot be amended by way of amendment. He relied on Lambert v. Nigerian Navy (2006) 7 NWLR (Pt. 980) 514 at 534.

On Issue 3, counsel called us to note that the Respondent’s motion of 8/7/11 sought:

“An order deeming service of Applicant’s (statement setting out the name and description of Applicant reliefs sought, the grounds upon which the reliefs are sought and affidavit setting out the facts upon which the reliefs are sought, filed along, other processes in this suit as proper service, the appropriate fees having been paid.”

Counsel referred us to the annexed statement and the annexed ‘Affidavit’ on pages 63 – 66 of the Records and submitted that, while the Respondent was devising means of bringing the new processes before the court, Appellant had also filed all his processes in opposition to the Respondents’ suit – namely the motion for striking out of the suit, and a counter affidavit (in defence of the suit.) He argued that since it was on the same day (9/5/12) that the trial judge granted Respondent’s application (deeming the ‘statement’ and Affidavit’s duly filed and served), that it also determined the main suit (entering judgment for the Respondent – that his fundamental rights were threatened), the said judgment was delivered without giving Appellant opportunity to respond to the new processes, deemed regular, to have been served on him; that Appellant’s right of fair hearing, under Section 36 of the 1999 Constitution (as amended) was therefore breached. He relied on the case of S.B.N. PLC VS. CROWN STAR & CO LTD (2003) 6 NWLR (Pt. 815)1 at 15 – 16, and said that the procedure adopted by the trial judge by deeming service of the Respondent’s detached “Statement and Affidavit” regular and proceeding at the same time to deliver judgment in the Suit, without giving Appellant right of Reply to the said Statement, traversed the principles of fair hearing.

On Issue 4, Counsel submitted that the trial Court had struck out the Counter affidavit filed by the Appellant, on the application the Respondent raised by way of points of law; that the counter affidavit was served 26 days, beyond the 5 days stipulated by law (Order 2 Rule 6 of FREP Rules 2009); that the Court also struck out Appellant Counsel’s address, as being incompetent. Counsel submitted that the Respondent never raised that issue – that Appellant’s Counter affidavit was filed out of time without the leave of court; that the Respondent’s objection in his Reply on points of law rather was:

“Contrary to the provision of Order 2 Rule 6 FREP Rules, 2009 Respondent’s process, dated 1/7/2011 and filed on 4/7/2011, was served on 6/7/2011, 26 days beyond the 5 days mandatorily required.” See paragraph 2. 1 thereof.

He argued that the objection was based on the period of time when the counter – affidavit was served and not on when it was filed, after the service of the substantive application on the Appellant; that Order 11 Rule 6 does not provide for the time limit within which to serve the process, but within which counter affidavit may be filed after the service of the originating process, which is 5 days. He argued that the trial court raised the issue of filing the Appellant’s counter affidavit out of time without leave, suo motu, without calling on parties to address it, thereby denying Appellant of his right of fair hearing; that it is trite that a court has a duty to limit itself to the issues raised by the parties, which alone qualify as issues before the court. He relied on VICTINO Fixed Odds Ltd vs. Ojo (2010) 8 NWLR (Pt. 1197) 486 at 504; that where a court raises a matter on its own and decides to deal with it, the court has to give the parties opportunity to address it on the issue, before deciding on it – R.T.E.A.N vs. NURTW (1992) 2 NWLR (Pt. 224) 381 at 392; AULT & WRONG (NIG) LTD vs. NIBEL IND. LTD (2010) 11 NWLR (Pt. 1220) 486 at 496.

He urged us to resolve the Issues for the Appellant and allow the appeal.

The Respondent’s counsel, N.K. Agbayi Esq., on Issue 1, submitted that the trial court had jurisdiction to entertain the case. He relied on the case of WAEC vs. AKINKUMI (2008) 4 SC & J 307 – 309 to say that

“In ascertaining the competence of a suit, the determining factor is that of the claimants, claim. On this question however, it is not the manner in which the claim is couched that matters nor the characterization given to the claims by the Defendant that courts. The court has a duty to carefully examine the reliefs claimed, what the claim are all about.”

Counsel submitted that condition precedent to exercise of jurisdiction regarding Fundamental Right (Enforcement procedure) Rule, 2009, is captured in Order 2 Rules 1 to 7 of the Rules; that the application was correctly originated. He argued that Order IX Rule 1 of the Rules provides a wide cover for non-compliance with the Rules, where such non-compliance is not fatal to the application, as the same is treated as a mere irregularity, which can be remedied; that by Order IX Rule 1, the court is enjoined to constantly and conscientiously seek to give effect to the overriding objectives of the Rules at every state of human rights action, especially when it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. He added that the 2009 Rules (FREP Rules) came to soften the harshness and ameliorate the rigid provisions of the 1979 Rules; that the 2009 Rules principally aims at ensuing substantial justice and posits fewer adherence to technicalities. Thus, he said, the cases of Adeniyi v. IGP (1997) 1 FHCLR 278 at 280; Kida vs. Ogunmola (2006) 13 NWLR (Pt. 997) 377 and Lamberts vs. Nigerian Navy (2006)7 NWLR (Pt. 980) 514, relied upon by the Appellant, are not applicable to this suit, being distinguished and having been cited out of con counsel stressed that inadvertently omitted statement of the Respondent was already part of the documents filed, having been paid for and copiously referred and relied upon by the Respondent in the application, and that Appellant had ample time to react since the process (statement) had been served on him (as per the motion of 4/8/11)

On Issue 2, counsel submitted that the trial court had ruled on preliminary objection of the Appellant, and referred us to page 84, lines 23 – 29 of the Records, where the court said:

“A careful perusal of the statement shows that it was indeed filed along with other processes on 6/6/2011 and the appropriate fees paid. I have no option therefore but to grant applicant’s application for his statement in this court deeming service of his statement in this suit as properly filed and served, the appropriate fees the having been. It is pertinent to note that this is the crux of Respondent’s objection and now that it has been taken care of…”

He argued that that clearly showed that the Appellants preliminary objection had been treated and ruled on. He submitted that there was no contradiction between the findings of the trial court and its judgment; that whereas, that 1st statement: “However, no statement was filed,” meant that the copy of the statement was not attached, the 2nd findings! “A careful perusal of the statement shows that it was indeed filed along with other processes on the 6/6/11 and the appropriate fees paid, “meant that the “Statement” was indeed filed, having been actually assessed and paid for; that that distinguished this case from the facts in Yakubu vs. Chief of Naval Staff (2004) 1 NWLR (Pt 853) 94

On Issue 3, Counsel submitted that the trial court ruled rightly on the substantive matter, after disallowing the preliminary objection, that by adopting that procedure, the trial court eliminated delay. He relied on order VIII Rule 2 of the FREP Rules, which required Appellant to file his counter affidavit along with its preliminary objection. He argued that objection was meant to be argued with the main suit by the Rules. He also relied on Order VIII Rules 1, 2, 4 and 6 of the FREP Rules, 2009, and emphasized Rule 4, that in the event of refusal of the preliminary objection, the court is enjoined to give its final ruling on the substantive application. He said that no breach of Appellant’s right of fair hearing occurred.

On Issue 4, counsel submitted: “Notwithstanding that Issues and grounds of appeal in this brief are so framed that one unavoidably must offend the rule of prolixity, Respondent has shown sufficiently that Appellant is mischievously and deliberately attempting to mislead this court.” He said that on page 59 of the Records (Paragraph 2. 1 of its Reply on points of law) the Respondent had raised the issue of Appellant’s process (counter affidavit) being filed out of time. He urged us to resolve the issues against the Appellant, and dismiss the appeal.

RESOLUTION OF THE ISSUES:
The Respondent’s Notice of intention to contend that the judgment should be affirmed on grounds other than those relied upon by the court below was deemed duly filed on 15/4/13. That was consequent upon Respondent’s motion, filed on 16/10/12 (the same date the Respondent filed his brief of argument in this Appeal).
In the motion the Respondent had sought:

(1) Extension of time within which to file the Respondent’s Notice (form 10B) – Notice of Intention to contend that judgment should be affirmed on grounds other than those Relied on by the Court.

(2) Leave of Court for Respondent to file the said process (Form 10B) Notice of Intention to contend …”

(3) Order of Court to deem the Notice of Intention to contend that judgment should be Affirmed on Grounds other than those Relied on by the Court now filed by Respondent/Applicant as properly filed and served”

The application was granted as prayed on 15/4/13 and the Notice of Intention to contend… (annexed to the application was deemed duly filed and served. On the face of the Notice of Intention to contend the Respondent stated:

“Take Notice that Respondent, at the hearing of this appeal, contends that they (sic) are principles of law or findings of fact not relied upon by the court below which can sustain the judgment of Honourable Justice TU. Uzokwe dated the 9th July, 2012 at the High Court of Abia State in the Aba Judicial division, Holden at Aba in suit No: A/M83/2077: ONOWU OBIAGBASO ENUKEME (For Himself and on behalf of TONIMAS NIGERIA LTD) v. DIDACUS ONU MAZI (for himself and on behalf of DINCO NIGERIA LTD).

PARTICULARS:-

PRINCIPLES OF LAW:

ABUSE OF PROCESS OF COURT, RESORT TO SELF HELP & OBSTRUCTION OF MACHINERY OF JUSTICE OCCASSIONING INJUSTICE ON RESPONDENT

FINDINGS OF FACT:

That while suit subsisted at the lower court (See page 1 through 66 of the Records), Appellant on the 15th November, 2011 (See pages 68 through 82 of the Record) applied and on the 17th November, 2012 obtained Order, ex-parte of Interim Injunction (See pages 74 through 75 of the Record) from the Customary Court, Ogbor Hill, Aba, and on the 23rd November, 2012 (See paras 10 through 16 page 69 Applicants Affidavit setting out further facts), with over 30 fully armed riot ready policemen (See page 71 of the Record) (See also paras 13 through 16 page 69 of Affidavit setting out further facts) and 12 tow trucks, executed the order albeit forcibly ejected the Respondent, towed 6 of his vehicles away and destroyed the res. On the res and its extended portion is currently standing a 98% completed ultra modern petrol station and standard hotel. This is notwithstanding that the deponent in the two suits one Engr. Burgess N. Eze who attended Court… devised ever planning to apply self help or to take recourse to means other than that which would be legal…”

Whatever the Respondent intended to present or project by the above ‘findings of facts’ and/or particulars and principles of law, it is clear that what was deemed by this court on 13/4/13 as duly filed was the Respondent’s Notice of Intention to contend that the judgment of the lower court should be affirmed on grounds other than those relied upon by the trial court. He was expected to come up with those grounds on which the court could have also founded the judgment (other than those relied on by the court) and to argue the same before this Court. Usually, such grounds are stated in the Respondents Notice and the arguments thereon In the Respondent’s brief.

The Respondent did neither of these, as the Respondent’s Notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the court failed to clearly state those grounds relied on. I have also gone through the Respondent’s Brief, and could find no reference, whatsoever, to the Respondent’s Notice of any argument showing any ground on which the trial court could have founded the judgment, other than what it relied on. The Respondent therefore appears to have abandoned the said Respondent’s notice, as no argument is proffered on it. The same is accordingly struck out.

Of course, by law, where a party brings an application or raises an issue but fails to proffer argument in furtherance of same, he is deemed to have abandoned that course of action.

I think the main and relevant issue arising for the determination of this appeal are two, namely:

(1) Whether, having regards to Orders 1 Rule 3, IV Rule 1 and IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the Respondent’s application was competent and the learned trial court had right to entertain it, giving judgment to the Respondent (Grounds 1, 4 and 5).
(2) Whether the trial court had ruled on Appellant’s preliminary objection on 9/5/12, when it adjudged Respondent’s application as being competent and if yes, whether the determination of the preliminary objection on 9/5/12, the very day of the Ruling on the substantive application, denied Appellant fair hearing, in the circumstances. (Grounds 2 and 3).

I believe the issue one as framed by this court takes care of the complaints of Appellant in his issues 1 and 5, while the issue 2 by this court accounts for Appellants issues 2 and 3.

The preamble to the Fundamental Rights (Enforcement Procedure) Rules (FREPR) 2009, particularly 1, 3(a), (b) and (d), state as follows:

(3) The overriding objectives of these Rules are as follows:

(b)…

(c) For the purpose of advancing but never for the purpose of restricting the Applicant’s Rights and freedoms, the court may make consequential orders as nay be just and expedient.

I believe it was in realization of such objectives that the law stipulates in Order ix Rule 1 as follows:

“Where at any stage in the course of or in connection with any proceedings, there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings, except as they relate to:

“(i) Mode of commencement of the application;

(ii) The subject matter is not within chapter iv of the Constitution or the African Charter on Human and People’s Right (Ratification and Enforcement) Act.”

Appellant’s main complaint against the judgment of the lower court centred on his objection to the suit alleging that it was incompetent, because the Respondent omitted to attach the statement, which Order 11 Rule 3 requires, saying:

“An application shall be supported by a statement setting out the name and description of the Applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the fact upon which the application is made.”

There is evidence that the Respondent, as Applicant, had pleaded the said statement in the bundle of processes he filed, and had made copious references to it, such that the same was assessed by the Registry for filing and the Respondent made payment for the process (statement) along with the other processes filed on 6/6/2011. But it appears the said statement was not part of the documents submitted to the Registry at the time of the filing, and the Registry of the court that processed the documents and assessed for payment did not spot the omission. It was Appellant’s preliminary objection to the suit, alleging incompetence by reason of the omission of the ‘statement’ that called the Respondent’s attention to the error and omission. Of course, the Respondent promptly filed a motion to rectify the error on 8/7/11; it served the Appellant with the said statement, together with the application (motion of 8/7/11) and prayed the court to deem the filing and service as duly done. There is evidence to show that the motion and the statement were promptly served on the Appellant. See pages 46 to 66 (particularly 54 to 58) of the Records of Appeal for the statement of the Applicant, which carries the payment schedule for the processes filed, together with the fee paid for the statement, on 6/6/2011)

I believe such is the “anything done or left undone” due to “failure to comply with the requirement as to time, place or manner or form” which order IX Rule 1 envisaged and said must be treated as “an irregularity and may not nullify such proceeding.”

The trial court, in my opinion, rightly considered the same, in line with the law, when it held, on page 84 of the Records; as follows:

“Counsel for the Applicant in reaction filed a motion praying for an order deeming service of the Applicant’s statement fiLed along with other processes in this suit as proper service, the appropriate fees having been paid. He argued that this statement was copiously cited as what Applicant would use and rely upon in this application. That the process was already filed in this application, on 6/6/11. In his address he added that the said statement was omitted, inadvertently, during compiling of the processes after payment of the appropriate fees. He annexed the said statement. A careful perusal of the statement shows that it was indeed filed along with the other processes on the 6/6/11 and the appropriate fees paid. I have no option therefore but to grant Applicant’s application for the order of this court deeming service of his statement filed along with other processes in this suit as properly filed and served, the appropriate fees having been paid.”

With that findings and ruling, coupled with the Order IX Rule 1 of the FREPR 2009, Applicant’s suit was competent, as whatever defect arising from the error of omitting the statement at the point of compiling the processes, after payment of the appropriate fees (which should also be blamed on the Registry of the court) had been cured by the subsequent production and service of the document on the Appellant.

Even the fixing of the application for hearing outside 7 days, stipulated by Order IV Rule 1 (2) of FREPR appears to become harmless, in the light of the overriding objective of the Rules (as earlier highlighted) and considering the provisions of Order IX Rule 1, which specifies that failure to comply with the requirement as to time (among other things) shall be treated as an irregularity and may not nullify the proceedings.

Of course, the cases cited by the Appellant to support their position on this issue, including Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt. 518) 635 and Ogwuche & Ors. vs. Mba & Ors. (1994) 4 NWLR (Pt. 336) 75, were all founded on the provisions of 1979 FREPR, which had no equivalence of Order: IX Rule 1, of the 2009 Rules and no clear cut overriding objectives, as the 2009 Rules.

In my opinion, it would be absurd to reject or nullify a judgment/proceedings, simply because it was not heard and determined within the time frame stipulated (7 days or 14 days) by law for the case to be fixed for hearing, since the essence of the shorter time frame for hearing the suit was to expedite action and give judgment, speedily.
That the case is finally heard or determined, at all, after some delay (which may even be caused by the adverse party) though beyond the anticipatory period, should in my opinion be a relief and thing of joy, instead of a disqualification and offence.

I therefore hold that the learned trial judge was properly guided when he held the process filed by the Respondent to be competent, and granted the prayer to remedy the defect of omission to include the statement of the Applicant, which had already been assessed and paid for service on the Respondent (Appellant); that, pursuant to Order IX Rule 1, the proceedings in suit No. A/M83/2011 could not be defeated, simply because the matter was fixed for hearing, 61 days after it was filed, instead of 7 days. To hold otherwise would be counter productive.

On issue 2, the Appellant insisted, that the trial court did not rule on their preliminary objection which warranted the Respondent’s application to remedy the wrong highlighted by him (Appellant); that the court rather ruled on the Respondent’s application and deemed the statement of the Applicant as duly filed and served.

I do not think the Appellant was under any illusion that his preliminary objection had been overruled when the learned trial judge held:-

“A careful perusal of the statement shows that it was indeed filed along with other processes on the, 6/6/2011 and the appropriate fees paid.
I have no option therefore but to grant Applicant’s application for the Order of this court deeming service of this statement in this suit as properly filed and served … It is pertinent to note that this is the crux of Respondents objection and now that it has been taken care of, it is necessary to look into the objection of the learned Counsel for Applicant who had filed a reply on points of law.” See page 84 of the Records.

Thus, even when the court below did not expressly call the Appellant’s preliminary objection by name and say formally: “The preliminary objection hereby fails and is hereby dismissed'(as Appellant would have wanted the court to state, as a formal Ruling), that pronouncement was, all the same, apparent in the summary ruling on the two motions – one for striking out of the suit, because of defect (brought by Appellant) and the other to remedy the error and save the suit (brought by the Respondent).

Appellant’s Counsel is deemed to be sufficiently versed with the above provisions, which must have guided the learned trial court in delivering judgment in favour of the Respondent on the same date he ruled against the Appellant’s preliminary objection.

Of course, the Appellant had filed, his Counter – Affidavit together with his preliminary objection to defend the application by the Respondent, as directed by Order VIII Rule 2 that was done on 4/7/11. (See pages 19 to 45 of the Records, carrying all the processes by the appellant, including address of Counsel opposing the substantive application). It must also be appreciated that the motions and the substantive application were heard together on 23/2/2012, when Counsel, on behalf of the parties, adopted their written addresses, and the case was adjourned to 9/5/12 for judgment. That too agreed with Order VIII Rule 4 of the FREP Rules, 2009.

Appellant’s strong argument is that his right of fair hearing was denied, since it was on the same date of rejecting his preliminary objection and of deeming the statement filed by Respondent as duly done, that the court gave judgment against him; that since the Respondent’s statement was deemed served on him on the date of the judgment, he was denied opportunity to react to the said statement, having not been served on him until the date it was so deemed, that is, 9/5/12.

I am afraid that does not appear to be an honest argument, as Appellant had been put on constructive notice of the Applicant’s (Respondent) statement, since the same was filed on 6/6/11, and specifically, when the Respondent’s application to deem the process duly filed and served on the Appellant, filed on 8/7/11, was delivered to the Appellant. Of course, the Respondent’s affidavit in support of the application to deem the process as duly filed and served on the Appellant (which Appellant never denied) had explained the confusion that led to the error of missing the statement of the Applicant in the bundle of documents during compilation of the documents after payment for the filing of the same. The trial court had held that the statement had been duly filed and paid for and had deemed the same served on the Appellant.

Looking at Appellant’s Counter affidavit (which was, however wrongly rejected by the court for allegedly being filed out of time), Appellant had admitted knowledge of the facts of the case and of being shown the Applicant’s application for enforcement of his fundamental right dated 6/6/2011, together with the supporting affidavit and accompanying Exhibits. See paragraphs 2 and 3 of the counter affidavit. Going through the whole gamut of the Counter – affidavit, it is obvious that the Appellant knew all the facts of the case of the Respondent, which were properly articulated in the supporting affidavit and exhibits filed by the Respondents – how Appellant resorted to self help to eject the Respondent from the stand 86 space occupied by Respondent, even after Appellant had issued the statutory notice on him, but failed to seek the order of competent court to justify the ejection. The very facts in the supporting affidavit of the Respondent to the application were same facts replicated in the statement of the Applicant. See and compare pages 3 to 5 of the Records (supporting affidavit of Respondent to the originating process) with pages 55 to 57 of the Records (facts in the statement of Applicant supporting grounds upon which the reliefs were sought).

Paragraphs 7 and 12 of Appellant’s counter affidavit admitted the issuance of statutory notices on the Respondent, but denied using self help to regain possession of the property. See paragraphs 13 & 14 of the counter affidavit. Though the counter affidavit was erroneously struck out on the allegation of not being properly filed, its content elaborately showed Appellant’s defence to the suit, that Appellant was seised of the facts of the Respondent’s case and made a feeble defence thereto. Appellant cannot therefore allege that he was not given opportunity to be heard, simply because the judgment of the court was delivered on the same date the court ruled that Appellant was deemed to have been duly served with the statement of the Applicant. He had joined issues with the Respondent’s case. The Ruling of the court was in line with Order VIII Rule 5 of the FREP Rules 2009.

I hold that though the trial judge wrongly struck out Appellant’s counter affidavit, a consideration of the counter affidavit could still not overturn the conclusions reached by the trial court in the suit.

Appellant had ample opportunity to put forward his case before the trial court and he, dutifully, utilized it, albeit unsuccessfully. He cannot complain of not being given fair hearing. A party cannot complain of being denied fair hearing after he has been duly heard, or where he forfeited opportunity given to him to be heard. See the case of GTB PLC V. FADCO IND. NIG LTD (2013) LPELR 21411 (CA); FHA V. KALEJAIYE (2011) ALL FWLR (Pt. 562) 1633. As a last comment, it appears to me that the Appellant did not really have cause to be in this court, if, infact, he had not resorted to self help, to eject the Applicant (Respondent) and if he does not still harbour intention to do so. Afterall, the judgment of the trial court did not award any damages against the Appellant (except N10,000.00 being the cost of the suit), which the trial court deemed Respondent was entitled). All that the trial Court did was to grant the reliefs, that Respondent herein is entitled to be heard by a competent court before he could be ejected, the statutory Notices having been served on him, that his right was likely to be infringed, should the Appellant herein, use self help to eject him. The court then restrained the Appellant (as Respondent at the lower court) from doing so, that is, ejecting Applicant, unlawfully. By pursuing this appeal Appellant tends to give impression that he is trying to fault those unassailable legal pronouncements, or he is trying to justify resort to self help to eject the Respondent, after serving the Respondent with the necessary statutory notices, rather than go through the court process.

I therefore resolve the two issues against the Appellant and hold that the appeal is completely devoid of merit. It is accordingly dismissed, with fifty thousand naira (N50,000.00) cost against Appellant, payable to the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to have read the draft of the lead Judgment just delivered by my Learned brother, I. G. Mbaba, JCA; and am in total agreement with his reasoning and conclusion that this Appeal is completely unmeritorious and should be dismissed in its entirety.

By the claim of the Applicant/Respondent in the lower court, he sought the enforcement of his fundamental right to property which he occupied as a tenant to Respondent (now Appellant). That right was for him to be heard by a court of competent jurisdiction having been served with the statutory Notices to Quit and Notice of owner’s Intention to recover possession in accordance with the Recovery of Premises Law of Abia State. The court below upon reading the affidavits and counter-affidavits and statement in support of the Application found merit in the Respondent’s case and accordingly ordered as prayed.

Now the grouse of the Appellant is that the Respondent’s suit was incompetent in that the Application for the Applicant’s enforcement of his fundamental rights was not accompanied by a statement. However, as was rightly found by the Learned trial Judge at page 84 of the Records, the Respondent duly filed the Statement with the originating processes on the 6th of June, 2011 at the commencement of proceedings and the document was duly assessed as having accompanied the Application.

When it was discovered that it was inadvertently omitted in the course of tagging all the documents with the Application, the Learned Counsel for the Respondent promptly filed an Application to regularize the position and the Court below rightly granted the prayer for an order deeming service of the Applicant’s (now Respondent’s) statement in support of the substantive Application for the enforcement of his fundamental right as having been properly filed and served with other processes, the appropriate fees having been paid. My Lord, has aptly stated the obvious when he held that with the above finding of the Learned trial Judge coupled with the provisions of order IX Rule 1 of the FREPR, 2009, the suit was competent as whatever defect inherent therein had been cured by the subsequent grant of the Application for regularization of the service of the accompanying statement and the payment of the appropriate fees by the Respondent.

Thus, the authorities of Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 578) 695 and Oguche & Ors. v. Mba & Ors. (1994) 4 NWLR (Pt. 336) 75, which were decisions founded on the defunct 1979 FREPR, are not applicable to the new Fundamental Rights Enforcement Rules, 2009.

On the second Issue which is the Appellants, complaint that his preliminary objection to the competence of the Application because it was not accompanied by a statement was not heard by the court below, my Lord has also done justice to that spurious contention by his reference and reliance on Anazonwu v. Ibegbu (2013) LPELR – 21204 (CA) and AG. Fed. v. Onikoyi (2006) 18 NWLR (Pt. 1010) 57 on the now settled principle of our adjectival law that where there are two Applications one seeking to strike out or dismiss a suit on technical grounds and there is a prompt reaction by the party to the irregular process filing a counterpart Application to regularize the defect in competence of the suit, the Court will hear the application calculated to breathe life into the defective process or suit, in the interest of justice. This was what the Learned trial Judge did in allowing the Respondent’s Application for regularization, in order to hear the substantive Application on the merits. Accordingly, the Appellant cannot be heard to complain that he was denied his right to fair hearing.

With the grant of the Application to deem the Statement duly filed and served, the prescribed fees having been paid, the Respondent’s preliminary objection became spent, dead and buried. Although the Learned trial Judge erred in striking out the Appellant’s counter-affidavit for being filed out of time, I also agree with my noble and Learned brother Mbaba, JCA, that with the copious facts deposed to in the Respondent’s affidavit, and the fact that the Appellant was afforded the opportunity to be heard on the Application which he duly utilized, he cannot come here to complain of not having been given fair hearing.

It is for the above reason and the fuller reasons advanced by my Learned brother in the lead Judgment, that I also dismiss the Appeal for lacking in merit. I abide by the order as to costs.

PETER OLABISI IGE J.C.A.: I have had the advantage of reading the judgment of my Learned Brother, My Lord MBABA, JCA.

I agree with the reasons and order(s) contained in the judgment. I have nothing useful to add.

The appeal is dismissed.

Appearances

M. U. UZOMA ESQ.For Appellant

AND

N. K. AGBAYI ESQ.For Respondent