Boniface Ezeadukwa V. Peter Maduka & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI J.C.A.

The 1st respondent as applicant in the lower court filed a motion exparte under the Fundamental Rights (Enforcement Procedure) Rules for leave to enforce his fundamental rights against the appellant, who was the 1st respondent in the Court and the 2nd respondent, Mr. Okonkwo. The motion was granted on 26th April, 1989. On 16th June, 1989, the 1st respondent filed the motion on notice. On 7th July, 1989, the 1st respondent filed a motion on notice dated 5th July, 1989 praying the lower court alia for an “order extending time within which to file the motion on notice in the above suit in respect of the Applicant’s Fundamental Rights, the statutory filing period having expired”. The application was granted on 16th October, 1989 as prayed. The matter was heard. On 2nd December, 1994, judgment was given in favour of the appellant. The court granted the injunction sought, awarded exemplary damages of N15,000.00 and general damages of N10,000.00. The court did not award the claim of N100,000.00 special damages.

Aggrieved by the judgment, the appellant has come to this court. Briefs were filed and duly exchanged. The appellant formulated the following three issues for determination.

“(a) Whether the Lower Court could on the strict interpretation of the provisions of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 legitimately extend time within which an applicant may bring a substantive application for the remedy sought after the expiration of 14 days of the grant of leave for same?

(b) Whether based on the affidavit evidence together with all the materials placed before the court, the lower Court was justified in arriving at the finding of fact that an infringement of Fundamental Rights of the applicant had been established?

(c) Whether it could be rightly held based on the facts and evidence presented, that infringement had been occasioned by the application herein to entitle 1st respondent to the orders granted against the appellant?”

The 1st respondent also formulated three issues for determination:

“1. Whether the present appeal against the judgment of Hon. Justice i.e. Nzeakor delivered on 2nd December, 1994 can be challenged based on the legitimacy of the order of extension of time granted on 16th October, 1989 and in effect whether one of the grounds of appeal is competent, i.e. Ground one.

2. Whether the lower court was right to have granted the orders sought in the face of the affidavit evidence and counsel’s addresses before the lower court.
3. Whether the consequential orders for injunction, and damages were justified in the circumstances.”

Learned Senior Advocate for the appellant Mr. J.H.C. Okolo submitted that Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules is both a special and mandatory provision requiring a party/applicant who has been granted leave to bring, commence or initiate his application by way of Motion on Notice in protection of his fundamental rights within 14 days after the grant of the leave. Learned Senior Advocate did not see any conflict between section 6(6)(a) of the 1979 Constitution and Order 1 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules as to warrant the activation of the former by the learned trial Judge. Accordingly, counsel did not see much in the argument of the learned trial Judge that since the provisions of section 6(6)(a) of the Constitution have vested the High Court with unlimited jurisdiction, the High Court could therefore enjoy the exercise of powers which may be contrary to the provisions of the Fundamental Rights (Enforcement Procedure) Rules. The learned trial Judge therefore had no powers to extend the mandatory 14days imposed by Order 2 rule 1(2) of the Rules as the words of the statute are very clear, learned Senior Advocate submitted.

On the reliance by the learned trial Judge on the High Court Rules of 1988, learned Senior Advocate contended that the Fundamental Rights Enforcement Procedure) rules are complete and that the requirement of 14 days compliance was intentional having regard to the peculiar nature of the rules and the circumstances they are enacted to operate within. He therefore submitted that the reliance placed on Order 20 rule 3 of the High Court Rules was completely wrong. Learned counsel also submitted that Order 20 rule 3 is inapplicable in circumstances where a written law or common law has prescribed a definite period for an originating process.

Learned Senior Advocate argued that since the learned trial Judge had no jurisdiction to proceed in the way she did, the entire hearing of the substantive ‘Motion on Notice’ and the consequent award of damages was without the requisite jurisdiction and therefore a nullity. He relied on Ogwuche & Ors. v. Mba (1994) 4 NWLR (Pt. 336) 75.

It was the submission of learned Senior Advocate that the provisions of sections 30, 31, 32, 34 and 40 under which the application was brought were neither infringed nor “any likelihood of same being breached” as no such threats were ever alleged in the application. Counsel argued that before any of the provisions can be activated, the primary questions for consideration should be: (a) Do the complaints of infringement fall within the purview of the Fundamental Rights guaranteed by the Constitution? and (b) Has there been established any infringement of those rights?

Learned Senior Advocate itemized or enumerated at page 7 of the brief what he regarded as the complaints of the 1st respondent and submitted that on the express showing of the applicant through the depositions in his affidavit, none of the said conducts or acts alleged, even if proved, can amount to the breach of the section relied on. Relying on Sadiq v. State (1982) 2 NCR 142; Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegui (1961) All NLR 853 and Christie v. Leachinsky (1947) 1 All ER 567 at 581, learned Senior Advocate submitted that there was no arrest of the 1st respondent.

Even if it is true that the 1st respondent was arrested, detained and charged for a non existent offence, it is only when the appellant did any of those acts that the burden will be shifted on him to justify his conducts, learned Senior Advocate argued. He submitted that the reliance by the court on the case of COP Ondo State v. Obolo (1989) 5 NWLR (Pt.120) 130 was completely unjustified, as there was in that case arrest/detention of the applicant against the named respondent.