Chief Sunday Eyo Okon Obong V. Patrick Leo Edet & Anor (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the ruling of Usen, J., sitting at High Court No.8, Uyo, delivered on 2/5/01 in Suit No. HU/MISC.97/99.

The appellant on 15/4/99 filed a motion ex-parte for leave of the High Court to enforce his Fundamental Human Rights, which he alleged had been breached by the respondents.

On 20/4/99, the trial court granted leave to the appellant to enforce his fundamental right. The leave granted by the trial court was to operate as a stay of all other proceedings by the police on the matter pending the determination of the case, (see page 13 of the records). Sequel to that leave, the appellant filed a motion on notice on 27/4/99 and served same on the respondents. A proof of service was filed in the trial court by the Bailiff on the 28/4/99.

The appellant through one Denis Aniedi Okon, filed proof of service to prove service on the respondents of the motion on notice. See page 35 of the record. On 26/10/2000, the appellant’s counsel, Mr. A. A. Asuquo, moved the motion on notice. On 22/11/2000, counsel for the 1st respondent, Apostle Abraham Okon, replied to the motion filed by first raising a preliminary objection, mainly, that the motion was itself incompetent because it was filed in breach of the mandatory provisions of Order 2, Rule 1(1) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The trial court on the 2/5/01 upheld the objection raised by the 1st respondent and struck out the suit.

Aggrieved by the ruling of the trial court, the appellant appealed to this court on 21/6/2001 on two grounds. From the two grounds of appeal, the appellant distilled a lone issue in his brief of argument dated 5/12/2001, and filed on 6/12/2001. The lone issue is as follows:

“Whether by wordings of the statute, the appellant is required to file and serve proof of service of motion on notice on the respondents or whether failure to serve the already filed affidavit or service on the respondents will (sic) rub the court of jurisdiction to certain a case under the fundamental right procedure.”

The 1st respondent in his brief of argument dated 30/4/05 and filed 5/5/05, identified two issues for determination as follows:

“(1) Was the Applicant’s Motion on Notice filed on 27th April, 7 days after leave was granted him for argument on 29th April, 1999, competent in the light of the provisions of Order 2 rule 1 sub 1 of the Fundamental Rights Enforcement Procedure Rules?

(2) Assuming that the Applicant’s Motion on Notice was competent despite the breach by the applicant of Order 2 Rule 1 sub 1 of the Fundamental Rights Enforcement Procedure Rules, was the Applicant’s Motion on Notice competent when the application had not in fact filed an affidavit giving the names and addresses of and the place and date of service on all the persons who have been served with the Motion on Notice or Summons before the motion or summons is listed for hearing?”

The 2nd respondent in his brief dated 24/10/05 and filed on 27/10/05 adopted the 1st respondent’s Issue No. 1 and thereafter formulated another issue as follows:

“Was the lower court with jurisdiction to entertain the applicant’s motion on notice when it was in

breach of Order 2 Rule 1(1) from the onset.”

Upon being served with the 1st and 2nd respondents’ briefs, the appellant filed a reply brief on 23/4/07 but deemed properly filed by this court on 16/5/07.