Abayomi Fabunmi V. Commissioner Of Police, Osun State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of Saidu J. of the Federal High Court, Osogbo Osun State striking out the application filed by the appellant for the enforcement of his fundamental rights on grounds of lack of locus standi.

The Appellant, as one of the persons appointed Executors of the Estate of Late Chief Ayo Martins in his will (yet to be admitted to probate) had a dispute with the 3rd Respondent, Pastor Ife Adewumi of the Foursquare Gospel Church Ile-Ife in respect of a property sold to the church by Chief Ayo Martins. In the course of the dispute, the 3rd Respondent petitioned the 2nd Respondent the Area Commander Moore Police station Ile-Ife alleging that the appellant unlawfully broke in and entered premises purchased by the church. Based on this petition, the appellant was repeatedly arrested and detained by the police. All efforts by the appellant to explain that the matter related to dispute over property which was the subject of on-going litigation fell on deaf ears. The appellant then took out an action at the Federal High Court Osogbo for the enforcement of his fundamental rights. He commenced the action by motion ex parte for leave to apply for the enforcement of his fundamental rights but the application was not supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought. The learned trial judge non-the-less granted leave and the appellant then filed his motion on notice.

Instead of entering appearance and filing their counter affidavit, the 1st and 2nd respondents by motion on notice filed a preliminary objection to the application on grounds of lack of locus standi to institute the action. The 3rd Respondent who filed a counter affidavit but did not file any notice of preliminary objection also argued the issue of lack of jurisdiction of the lower court to hear the appellant’s application. After hearing all the parties, the trial court in a considered ruling struck out the appellant’s application for the enforcement of his fundamental rights on the ground of lack of capacity to commence the action in that the appellant did not show sufficient interest in the subject matter of the suit. Dissatisfied with this ruling, the appellant with the leave of the court filed a notice of appeal with three grounds of appeal.

In his brief of argument, the appellant formulated two issues for determination. They are:

1. “Whether the applicant on the application for enforcement of fundamental rights needs to show sufficient right on the claim and bring an application as an executor of the will of late Chief Ayo Martins which he was executing as executor when the violation of his rights occurred to enable the court to hold that the applicant has locus to institute the action. Ground 1 and 2

2. Whether an applicant on Notice of preliminary objection needs to comply with the rules to raise the objection before being heard by the court and the objections upheld: Ground 3.”

The 1st and 2nd Respondents in their brief of argument formulated the same two issues as the appellant above but put more succinctly thus:-

1. Whether the learned trial judge erred in law to make an order for striking out the case for lack of locus standing: Ground 1 and 2

2. Whether the preliminary objection raised by the respondents was properly raised and upheld: Ground 3.

As the second issue touches on the jurisdiction of the court to entertain the application, I will take it as the first issue and the first issue as the second.

On whether the preliminary objection was properly raised, the appellant, Abayomi Fabunmi, Esq. appearing for himself in his brief of argument referred to Order 25 rules 1, 2(1) and (2) and rule 3 of the Federal High Court (Civil procedure) Rules 2000 and submitted that the respondents did not comply with these rules in raising their preliminary objection. Counsel argued that the respondents ought to have first filed a memorandum of appearance and then a counter affidavit within which the preliminary objection could be raised. Counsel argued that the 3rd Respondent filed a counter affidavit but failed to raise the preliminary objection in the counter affidavit. The 1st and 2nd Respondents filed a preliminary objection without filing a counter-affidavit. Counsel in conclusion submitted that the respondents completely disregarded the rules of court and urged us to resolve this issue against the respondents.

Mrs. M.A Bello of the Ministry of Justice, Osogbo for the 1st and 2nd respondents in her brief of argument submitted that the issue of locus standi is a jurisdictional issue which can be raised at any stage of the proceeding and even orally. The court could also raise it suo motu. Counsel argued that issue of jurisdiction cannot be defeated by the provisions of the rules of court and urged us to resolve the issue in favour of the respondents.

In his reply brief to 1st and 2nd Respondents brief of argument Mr. Fabunmi berated Mrs. Bello for what he claimed to be her apparent lack of understanding of the issues involved. He found it preposterous that Mrs. Bello would opine the view that a party raising a preliminary objection need not comply with the rules of court. He submitted that it is settled law that rules of court must be obeyed and that any process, suit or application not in compliance with the rules is incompetent, thereby robbing any court of jurisdiction to entertain such process. He contended that the trial court had no jurisdiction to entertain the preliminary objection which failed to comply with the rules of court, talk less of actually granting the prayer therein.