Felix A . Uwa vs Sunday Etim Akpan & Anor. COURTOF APPEAL (CAlABAR DNISION) KUMAI B. AKAAHS lCA (Presided)
lAFAARU MIKA’ILU lCA (Delivering the Lead Judgment) NWALI S. NGWUTAlCA
Whether considering the decision of the Calabar High Court in Suit No: HCIMSC.328/2004, Suit No: FHClCA/CS/28/2006 filed before the lower court does not constitute an abuse of court processes and the applicants estopped from filing further applications in the Federal High Court, Calabar.
Whether considering the processes filed, the application of the respondents violates the provisions of Order 1, rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, grounds 2, 4 and 5.
The respondents claimed that they were arrested and detained at the instance of the appellant and therefore sought and obtained in the Federal High Court leave to apply for the enforcement of their fundamental rights. Motion on notice was subsequently filed praying for same relief. The trial court held that the appellant violated the respondents’ fundamental rights and ordered that they be compensated with the sum of five hundred thousand naira (N500,OOO.OO). The appellant was aggrieved and appealed to the Court of Appeal.
In determination of the appeal, the Court of Appeal considered the following statutes;
Order 2, rule~2(2), 2(3), 1 (1) and 2( 1) of the Fundamental Rights (Enforcement Procedure) Rules which provide as follows:
rule 2(2) “No application for an order enforcing or securing the enforcement within that state of any such rights shall be made unless leave therefore has been granted in accordance with this rule.”
rule 2(3) “An application for such leave must be made ex parte to the appropriate court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavit verifying the facts relied on.”
rule I (I) “When leave has been granted to apply for the ‘order being asked for, the application for such order’must be made by notice of motion or by originating summons to the appropriate court and unless the court or Judge granting leave has otherwise directed, “there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. Form No.1 or 2 in the appendix may be used as appropriate.
rule 2( 1) “Copies of the statement in support of the application for leave under Order I, rule 2(3) must be served with the notice of motion or summons under rule 1 (3) of Order 2 and, 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 relief set out in the said statement.” Concurrent jurisdiction of State High Court and Federal High Court on matters relating to fundamental rights-
Both the State High Court and the Federal High Court have concurrent jurisdiction in handling issues of fundamental rights.
If a State High Court refuses to make an order entitling an applicant to enforce his fundamental right, this will not preclude the Federal High Court from entertaining same application because such proceedings areakin to application for bail. [P. 416, paras. A - B]
How initiation of proceedings for enforcement of fundamental rights is commenced under Fundamental Rights (Enforcement Procedure) Rules, Order 2, rule 2(2) and 2(3) –
By the provisions of Order 2, rule 2(2) and 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, the initiation of proceedings for the enforcement of fundamental rights which has been, is being, or is likely to be infringed is commenced by an ex parte application. [P. 416, para. E]
Document a respondent in action for enforcement of fundamental rights should react to –
A respondent in action for enforcement of fundamental rights is required to react to the statement in support of the application and not the verifying affidavit. [P. 417, para. E]
Nigerian Case Referred to in the Judgment:”
Oyawole v. Shehu (1995) 8 NWLR (Pt. 414) 484
A Nigerian Statute Referred to in the Judgment:
Constitution of the Federal Republic of Nigeria, 1999, sections 35 and 46
Nigerian Rules of Court Referred to in the Judgment:
Fundamental Rights (Enforcement Procedure) Rules, 1979, Order I, rule 2(3); Order 2, rule 2(2) and 2(3)
MIKA’ILU JCA (Delivering the Lead Judgment): This is an appeal against the judgment of the Federal High Court Calabar delivered on Tuesday, 27 March 2007 in Suit No: FHC/CA/CS/28/2006 wherein the trial court entered judgment against the appellant.
The background of this matter is that the I st and 2nd respondents had on 22 March 2006 filed an application for the enforcement of their fundamental rights as enshrined in section 35 of the Constitution of the Federal Republic of Nigeria, 1999, praying the lower court for leave to
apply by reasons of violation of their fundamental rights as enshrined in section 35 of the Constitution of the Federal Republic of Nigeria, 1999, and for such further or other orders as the lower court may deem fit to make in the circumstances.
The application was made ex parte and on that same date the lower court granted the I st and 2nd respondents leave to apply for the enforcement of their fundamental rights, also ordering that the appellant shall be put on notice. Aretum date was fixed for 19 June 2006. On 6 June 2006 the I st and 2nd respondents filed a motion on notice, praying the lower court for the enforcement and protection of their fundamental rights in term of their reliefs sought in the statement accompanying the affidavit, verifying the facts in support of the application for leave.’
On 30 November 2006 the lower court ordered written addresses to be filed by the parties through their address on 15 December in argument of their motion on notice filed on 6 June 2006. The appellant on 17 January 2007 filed a reply to the I st and 2nd respondents argument. A rejoinder on points of law was filed by the I st and 2nd respondents on 23 January 2007.
After filing written addresses, the trial Judge adjourned the case for judgment which was delivered on 27 March 2007.
In a considered judgment, the trial Judge found that the appellant and another had violated the right of the I st and 2nd respondents and ordered that the I st and 2nd respondents in this appeal be compensated with the sum ofN500,000.00 (five hundred thousand naira) to be paid jointly and severally by the appellant and another who sued respondents before the lower court. The appellant was dissatisfied and therefore filed this appeal.