Abayomi Fabunmi V. Inspector General Of Police, Abuja & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A.A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision delivered by CHUKWURAH NNAMANI, J. of the Osogbo Division of the Federal High Court delivered on the 11th day of July, 2002. The appellant was not satisfied with decision of the lower court which ordered that his suit, under the Fundamental Rights (Enforcement Procedure) Rules be “commenced by way of Writ of Summons for a better consideration of the case ….” and the appellant filed a notice of appeal containing 5 (five) grounds. The five grounds, weeded of their particulars, are reproduced hereunder:

“1. The Lower Court erred in law to have refused leave on the Applicant application for Leave to enforce his Fundamental Rights under the Fundamental Rights Enforcement Procedure Rules 1979.

2. The learned trial judge committed error in law by ruling that redress in violation of the Applicant Fundamental Rights is better commenced by filing Writ of Summons and Statement of claim than by going the way of Application for the enforcement of the Applicant’s Fundamental Rights though Fundamental Rights Enforcement Procedure Rules 1979.
3. The learned trial Judge misdirected himself in law by refusing Leave on Motion Ex-Parte seeking Leave to enforce applicant Fundamental Rights without hearing the Applicant’s counsel.
4. The learned trial judge committed error in law when he held; “I have read through the case file, I found the reliefs sought so complex and many.”
5. The learned trial judge erred to have insisted that a fresh Leave be obtained by the applicant to enforce his Fundamental Right”.

The parties filed and exchanged written briefs. The appellant’s brief dated the 12th day of January, 2005 was filed on the same date. The respondent’s brief dated and filed the 19th day of March, 2007 was deemed properly filed on the 7th day of July, 2007. The appellant filed a reply brief on the 18th day of July, 2008. At the hearing of this appeal the parties adopted and relied on their respective briefs of argument. The appellant distilled the following 3 (three) issues for determination, namely:

“(i) Whether the Learned Trial Judge was right to have refused to grant Leave to the Applicant (Appellant) in an application to enforce his fundamental right properly brought under fundamental Rights Enforcement Procedure Rules 1979.

(ii) Whether the Lower Court acted properly by ordering that the Applicant (Appellant) legal action which was commenced under Fundamental Rights Enforcement Procedures Rules 1999 be commenced by way of writ of summons and statement of Claim when the appellant complaints center on violation of his fundamental rights as guaranteed in chapter IV of the Constitution of the Federal Republic of Nigeria 1999.

(iii) Whether the Learned Trial Judge of the Lower Court was right to have disallowed the Applicant from moving his Motion Ex-Parte for Leave to enforce his Fundamental Rights under the Fundamental Rights Enforcement Procedures Rules 1979 despite the fact that Leave had already been granted by Federal High Court Ibadan where the case was transferred from to Federal High Court, Osogbo, Osun State.”

On his part, learned counsel for the 1st -5th respondents framed the following 2 (two) issues for determination, namely:

“(i) Whether the trial court was right in refusing the application of the Appellant/Applicant for leave to enforce his fundamental right brought under the Fundamental Right (Enforcement Procedure) Rules, 1979, given the peculiar Circumstances of the case before the trial Court.

(ii) Whether the trial court was right in entertaining a fresh application for leave to enforce fundamental right under the Fundamental Rights (Enforcement Procedure) Rules, 1979 despite the fact that leave had earlier been granted by another court.”

The appellant’s issue 3 centres on the lower court disallowing the appellant to move “his motion Ex-parte for Leave”. None of the grounds of appeal complains of the lower court, disallowing the appellant to move any motion ex-parte.

The third issue framed by the appellant does not arise from any of the grounds of appeal in this case.

The law is trite, and it has been stated and repeated in a litany of cases, that one is quite saddened that some learned lawyers keep repeating the error of formulating issues for determination outside their grounds of appeal. That issues for determination must relate to or arise from grounds of appeal, See the Supreme Court cases of UDEH V. OKOLI (2009) 7 NWLR (Pt.1141) 571 and NDUKWE V. STATE (2009) 7 NWLR (Pt. 1139) 43. The appellant’s issue NO. 3 are, accordingly, not countenanced in this judgment.

The live issues in this appeal are