Commissioner of Police Anambra State & Ors V. Dr. Emmanuel Omanukwue & Ors (1998)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a ruling of Kassim, J. of the Federal High Court, Enugu Division in suit No. FHC/E/M11/95 delivered on 22nd April, 1996, wherein he decided that he would first consider a motion for the committal of the parties sought to be joined, for contempt before considering the motion of the respondents/appellants challenging the jurisdiction of his court to entertain the matter before him.

In the substantive application before the court, the two applicants who are now the 1st and 2nd respondents had brought a motion ex-parte under Order 1 rule 2 of the Fundamental Rights (Enforcement Procedures) Rules 1979 for leave of the court for them to inter alia apply for enforcement of their fundamental rights which are guaranteed by sections 31(1)(a), 32( 1), 33( 1), 34 and 40 of the 1979 Constitution of the Federal Republic of Nigeria, which were seriously being threatened to be infringed by the respondents, their servants, agents and/or privies unless and until restrained by the honourable court.

In the statement of the “grounds upon which the application is made” it was disclosed that the 1st and 2nd appellants were the President-General and Secretary respectively of the “Ifitedunu Progressive Union,” It was then disclosed that the respondents were threatening to invade the privacy of the homes of the applicants and to arrest and detain them if they failed to produce and/or surrender the Ifitedunu Progressive Union’s properties to wit: The union’s minutes books, books of accounts and their constitution. It was then averred that by reason of the said threat, the applicants were suffering serious mental torture and were apprehensive of being arrested and detained any time.

Upon the above grounds the learned trial Judge. KASSIM, J. granted the leave sought in the following terms:

“1. That leave is hereby granted to the applicants to enforce their fundamental rights against the respondents.

2. That the leave shall operate as a stay of all actions or matter relating to or in connection with the complaint and to restrain the respondents their servants, agents and/or privies from continuing to infringe the applicants’ fundamental rights in the interim by restraining the respondents their servants, agents and/or their privies from:

(A) Arresting and determing the applicants.

(B) Expropriating from the applicants their custody right of the Ifitedunu Progressive Union’s properties to wit: The union’s books which include:-

Minute book,books of account and constitution etc.

(C) Invading the homes of the applicants in their search for the Ifitedunu Progressive Union’s properties as averred in (b) above.

3. That the applicants are to provide an undertaking as to damages.
4. That return date is 6th October, 1995.”

Following the above leave, an application on notice was later filed giving more details of respondents’ acts complained of.

On being served with the ex-parte order of the court, the first – third respondents filed an application on notice dated 5th October, 1995 praying the court for; “Orders striking out this suit and/or setting aside its ex-parte order for leave dated 25/9/95 on that grounds of incompetence or lack of jurisdiction, fundamental procedural irregularities and nullity.”

Also, in a motion on notice dated 6/11/96 and filed on 7/11/95 and fixed for hearing on 10th November, 1995, the following six persons. i.e.

1. Mr. J.J.D. Onyeka
2. Mr. Christopher Uchegbu
3. Mr. Ifedi Chude
4. Mr. Gabriel Obi
5. Mrs. Patricia Nweke
6. Mrs. Patricia Akabuike

(For themselves and on behalf of the Caretaker Committee of Ifitedunu Progressive Union),