Chike A. Akunnia v. Attorney-General of Anambra State (1977)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

The question in this appeal is whether the procedure by Originating Notice of Motion is appropriate for approaching the Court for a request to have a matter in difference, under the provisions of Chapter 111 of the Constitution of the Federation (ie the Federation of Nigeria) No. 20 of 1963, (hereinafter referred to as “the Constitution”), decided and relief granted in these proceedings, commenced by Originating Notice of Motion in the High Court of East Central State (now Anambra State) holden at Onitsha, the appellant sought, against (1) The Attorney General, East Central State of Nigeria (2) B. U. Ajoku Esquire, the Resident and sole Administrator,Onitsha Urban Division and (3) The Commissioner of Police, East Central State of Nigeria, the following orders: .

“(i) That the Order banning public meetings at Onitsha which was made by the 2nd Respondent is illegal, unconstitutional and void;

(ii) that the applicant is entitled to hold the second burial ceremonies of his cousin Peter Menkiti on the 16th day of January, 1975 or any other subsequent date without the permission of the second respondent or any officer of the Nigerian Police Force, and

(iii) an order restraining the respondents, their servants, agents and all officers, servants or functionaries of the East Central State Government or the Nigerian Police Force from interfering with the right of the applicants to hold the ceremonies aforesaid.”

After the 2nd respondent had in an affidavit he filed in these proceedings

disclosed that he published a ban on public meetings in Onitsha Urban Division “pursuant to the powers vested” in him “by virtue of the provisions of the Public Order (Maintenance) Edict 1975 and the delegation of powers thereunder made” to him “by His Excellency, the Administrator of the East Central State”, the appellant obtained the leave of the Court to amend and seek under the first prayer in his Notice of Motion, an Order:

“That the Public Order (Maintenance) Edict 1975, banning public meetings in the East Central State is illegal, unconstitutional and void”

When the matter came up for hearing on the 3rd March, 1975, the learned trial judge made the following notes pursuant to the stipulation of counsel on both sides:

“NOTE: Both sides agree that if prayer No. 1 succeeds the court can consider prayers 2 and 3, but not otherwise.”

Thereafter, the learned Principal State Counsel, Mr. Oyudo, appearing for the respondents took several objections in limine. In a nutshell, his objection which is material to the question in this appeal was that “the present action questioning the validity of an Edict is wrongly brought” as it should have been commenced by a writ of summons, and not by “any other process”. In his reply the learned counsel for the applicant, the appellant herein, maintained that because no provisions with respect to the practice of, and procedure for, bringing to the High Court, a complaint under sub-section (1) of section 32 of the Constitution have as yet been made as required by sub-section (3) of section 32 aforesaid, the procedure by Originating Notice of Motion (adopted in these proceedings) was appropriate.

In his ruling, a very lengthy one, indeed, the learned Judge in the Court below (Oputa J. as he then was) upheld the objection on behalf of the respondents and dismissed the application.

This appeal is from the Ruling aforesaid. Two grounds of appeal filed and argued before us read:

“(1) The learned trial judge erred in law in deciding that the procedure adopted by the appellant was wrong when no rules have been made under the Constitution of the Federation for the enforcement of the fundamental rights.