Felix A . Uwa
Sunday Etim Akpan & Anor
COURTOF APPEAL (CAlABAR DNISION)
KUMAI B. AKAAHS lCA (Presided)
lAFAARU MIKA’ILU lCA (Delivering the Lead Judgment) NWALI S. NGWUTAlCA
In the appellant’s brief of argument two issues have been formulated B for the determination of this appeal. They read as follows:
Considering the decision of the Calabar High Court in Suit No: HCIMSC.32812004 whether or not Suit No:FHCICAICS128/2006 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. C
Considering the processes filed whether or not the application of the respondents violates the provisions of Order I , rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules grounds 2, 4 and 5.
In the respondents brief of argument two issues have been formulated for the determination of the appeal. They are as follows:
Whether the respondents in bringing Suit No: FHCICA/CSI 2812006 at the lower court complied with the procedural requirement of the Fundamental Right (Enforcement Procedure )rules.
Whether Suit No: FHCICA/CS12812006 was competent before the lower court and not an abuse of the court process.
It is to be noted that the I st and 2nd respondents filed an application to enforce their fundamental rights in Suit HlCIMSC.32812004 before the Calabar High Court. The said High Court heard the matter and struck-it out for want of jurisdiction. Subsequently, the 1 st and 2nd respondents brought F the same application to the Federal High Court, Calabar Division in Suit. FHCICA/CS/2812006, wherein judgment was entered against the appellant.
I think considering the issues as formulated in the appellant’s brief of argument will be sufficient to determine this appeal. I will therefore consider them.
The first issues is considering the decision of the Calabar High Court in Suit No: HCIMSC.328/2004 whether or not Suit No:FHCICA/CSI 2812006 filed before the lower court does not constitute an abuse of court process and the applicant estopped from filing further applications in the Federal High Court, Calabar. There is no need to dwell much on this issue as it is clear that the trial court who earlier heard the matter struck it out on the ground of procedural irregularities. The said trial court held that its jurisdiction was not properly invoked because of the applicant’s failure to comply with the provisions of Order 1, rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. Thus the suit was not dismissed but merely struck out. Thus the matter was not decided on merit. This issue is decided against the appellant. Thus Suit No: FHC/CNCS/28/2006 was competent before the lower court and not an abuse of the court process.
The next issue is whether the respondents in bringing Suit No:
FHC/CA/CS/2006 at the lower court complied with the proceduraL requiTements of the Fundamental Rights (Enforcement Procedure) Rules. Considering the proceedings before the trial court. it is clear that the Suit No: FHC/CN28/2oo6 having been duly commenced as required by section 46 of the Constitution of thel-’ederal Republic of Nigeria, 1999, and having not suffered any jurisdictional disability was competent before the lower court and not an abuse of court process.
It is thus clear that this appeal should be dismissed for the following reasons:
The respondents complied with the requirements of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 in bringing the action in Sujt FHC/CA/28/2006. The action in Suit No: FHClCS/28/2006 was competent at the lower court as the striking out of Suit No: HC/MSC/328/2004 at the High Court of Calabar was based on procedural irregularities. The decision in Suit No: HCft’v1SCI328/2004 was not final since it was not decided on the merit. The respondent was competent to file a fresh action in Suit No: FHClCA/CS/ 28/2006.
In the final conclusion, I find no merit in this appeal and I accordingly dismiss it.
I award costs in favour of the respondents against the appellant in the sum ofN15,000.00 (fifteen thousand naira).
AKAAHS JCA: I read in draft the judgment of Mika’ ilu JCA and I agree with his conclusion and wish to add the following in elaboration to the appeal.
This is an appeal from the judgment of the Federal High Court, Calabar in Suit No. FHC/CA/CS/28/06 Which was delivered on 27 March 2007. The applicapts had earlier filed an ex parte application in the High Court of Cross River State, Calabar in Suit No. HCIMSC.328/2004 and leave was granted to the applicants to enforce their fundamental rights enshrined in section 35 ofthe Constitution of the Federal Republic of Nigeria, 1999. The learned trial Judge, Agube 1. (as he then was) struck out the application for want of Jurisdiction. This was on 3 May 2006. On 22 May the applicants made similar application before the Federal High Court, A in Suit No. FHCICA/CS/28/06 which granted them leave to enforce their rights. At the hearing of the motion on notice the same arguments offered but this time around, the learned trial Judge, Ajakaiye J. granted the reliefs of the applicants; hence this appeal.
It is pertinent to point out that both the State High Court as well as the Federal High Court have concurrent jurisdiction in handling issues of fundamental rights. If a State High Court refuses to make an order entitling I cant to enforce his fundamental right, this will not preclude the High Court from entertaining the same application because such preceding are akin to applications for bail. Suit No. FHCICA/CS/2812006 does not constitute an abuse of court process. Moreover Suit No. HC/msc 2812004 was struck out and not dismissed.
The second issue that has been agitated is whether the process filed violate the provisions of Order 1, rule 2(3) of the Fundamental Rights Procedure) Rules.
I wish to observe here that the arguments which learned counsel advanced for this issue were meant for the first issue and vice versa. He submitted. That there was no affidavit filed with the motion on notice that the appellant could have countered in’ the proceedings in the lower court as the appellant could not counter facts contained in exhibits “A” and “B” of the verifying affidavit.
The initiation of proceedings for the enforcement of fundamental right which has been, is being, or likely to be infringed is commenced by exparte application. Order 2, rule 2(2) and 2(3) of the Fundamental (Enforcement Procedure) Rules provide as follows: ‘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.