Chike Arah Akunnia V Attorney-general Anambra State Of Nigeria (1977)

LawGlobal-Hub Lead Judgment Report

IDIGBE, JSC.

The question in this appeal is whether the procedure by Originating Notice of Motion is appropriate for approaching the court for a request to have a matter in difference, under the provisions of Chapter III of the Constitution of Federation (i.e. the Federation of Nigeria) No. 20 of 1963, hereinafter referred to as “the Constitution”), decided on relief granted in these proceedings commenced by Originating Notice of Motion in the High Court of East Central State (now, Anambra State) holden at Onitsha, the appellant sought, against (1) The Attorney General, East Central State of Nigeria (2) B. U. Ajoku Esquire, the Resident and Sole Administrator, Onitsha Urban Division and (3) The Commissioner of Police, East Central State of Nigeria, the following orders:   

“(i) that the Order banning public meetings at Onitsha which was made by the 2nd Respondent is illegal unconstitutional and void; (ii) that the applicant is entitled to hold the second burial ceremonies of his cousin Peter Menkiti on the 16th day of January, 1975 or any other subsequent date without the permission of the second respondent or any officer of the Nigeria Police Force, and (iii) an order restraining the respondents, their servants, agents and all officers, servants or functionaries of the East Central State Government or the Nigerian Police Force from interfering with the right of the applicant to hold the ceremonies aforesaid”  

After the 2nd respondent had in an affidavit he filed in these proceedings disclosed that he published a ban on public meeting in Onitsha Urban Division “pursuant to the powers vested” in him “by virtue of the provisions of the Public Order (Maintenance) Edict 1975 and the delegation of powers thereunder made” to him “by His Excellency, the Administrator of the East Central State”, the appellant obtained the leave of the court to amend and seek under the first prayer in his Notice of Motion, an order:-   “That the Public Order (Maintenance) Edict 1975, banning public meetings in the East Central State is illegal, unconstitutional and void”. When the matter came up for hearing on the 3rd of March, 1975, the learned trial Judge made the following notes pursuant to the stipulation of counsel on both sides:- “NOTE: Both sides agree that if prayer No. 1 succeeds the court can consider prayers 2 and 3, but not otherwise”

Thereafter, the learned Principal State Counsel, Mr. Oyudo, appearing for the respondents took several objections in limine. In a nutshell, his objection which is material to the question in this appeal was that “the present action questioning the validity of an Edict is wrongly brought” as it should have been commenced “by a Writ of Summons, and not by “any other process”. In his reply the learned counsel for the applicant, the appellant herein, maintained that because no provisions with respect to the practice of, and procedure for, bringing to the High Court, a complaint under subsections (1) of Section 32 of the Constitution have as yet been made as required by sub-section (3) of Section 32 aforesaid, the procedure by Originating Notice of Motion (adopted in these proceedings) was appropriate.

In his ruling, a very lengthy one, indeed, the learned Judge in the court below (Oputa, J., as he then was), upheld the objection on behalf of the respondents and dismissed the application.   This appeal is from the Ruling aforesaid. Two grounds of appeal filed and argued before us read:- “1. The learned trial Judge erred in law in deciding that the procedure adopted by the appellant was wrong when no rules have been made under the Constitution of the Federation for the enforcement of the fundamental right. 2. The decision of the learned trial Judge is wrong and cannot be supported in law having regard to the fact that the application was for the enforcement of (a) Fundamental Right in respect of which jurisdiction is conferred upon the court by the Constitution of the Federation.”   At this stage, we think it is desirable, to set out in detail some of the relevant passages in the judgment of learned Judge in the court below. Said the learned Judge:-

(A) “There is no procedure of Originating Notice of Motion under our own Rules of court. Under Order 35 of our High Court Rules, motions deal with interlocutory matters in a pending suit and under that Order motions are not meant to initiate proceedings. By our Order 2 Rule 1 ‘Every suit shall be commenced by a Writ of Summons signed by a Judge, Magistrate or other officer empowered to sign summonses, etc’

(B) Section 16 of the High Court Law Cap 61 of (the) 1963 (edition of the Law of Eastern Nigeria) empowers the High Court of the East Central State to exercise its jurisdiction as regards practice and procedure primarily in the manner provided by this Law – the High Court Laws and Rules made thereunder ………………….. and in default in substantial conformity with the law and procedure for the time being observed in England in the High Court of Justice on the 30th day of September, 1960’ …………………………… It is only when our rules have not made any provisions to cover an existing contingency or where the provisions of our rules are not full enough, that we may supplement the existing deficiency by importing the relevant English procedure under the R.S.C. 

(C) “Originating Summonses and Originating Motions are appropriate methods of beginning proceedings in which the sole or principal question at issue is or is likely to be one of the construction of an Act or of any Instrument made under an Act ………………. where there are no issues of fact requiring proper pleadings and relevant evidence but rather where the only issue that may arise is one of law, then these summary and speedy methods of initiating proceedings can be resorted to. 

(D) “…………………..If one views the matter from another angle, it is obvious that in a case like this, the facts which the applicant alleges constitute a breach of his fundamental rights guaranteed to him under the Constitution, will have to be clearly set out in his pleadings. It has also to be shown that those rights of his have been infringed by the Edict …………… Furthermore, it has to be pleaded that Edict No. 1 of 1975 is not reasonably justifiable in a democratic society in the interest of public safety, public order and public security. (E) “Originally the complaint was that the order of the 2nd respondent ……………… banning public meetings at Onitsha is illegal and unconstitutional. On the 1st February, 1975 the applicant ……………… obtained an amendment.

He is now praying for an order that the Public Order Maintenance Edict is illegal, unconstitutional and void. This amendment created more troubles for the applicant. It is one thing to claim a right under a statute and to ask the Government to declare that right. But it is an entirely different thing to challenge the validity and constitutionality of a law …………………………………. But with the resulting amendment, the area of the dispute widened and it then became a dispute which cannot be summarily settled on a mere motion. It became a dispute which necessitated formal pleadings in an ordinary action for declaration ……………… All these should not be sacrificed on the altar of speedy hearing. ………………………. From this point of view of procedure, I agree with the submission of learned Principal State Counsel that where the redress sought is a declaration that a law or an Edict is unconstitutional, illegal and void the proper procedure should be by a declaratory action  We deliberately set out in detail the above passages of the judgment of the lower court which we also deliberately grouped in five Sections (viz A, B, C, D, & E) appearing along the margin of the quotations above because we consider it necessary to deal specifically in this judgment with certain principles of law which reference was made in the quotations above by the learned Judge.

As already pointed out although Section 32 of the Constitution gives the citizen a right to approach the High Court and request to have a matter in difference under the provisions of Chapter III of the Constitution decided and relief granted, no provisions with respect to the practice of, and procedure for, doing so has as yet been made. Among the various Fundamental Rights of the citizen entrenched in the Constitution by Chapter III thereof, are his Rights to (a) freedom of movement and (b) peaceful assembly and association (Section 26 and 27 refer); these Rights are, however, in each case subject to the limitations provided in the sub-sections of the principal sections of the Constitution which guarantee them. The learned Judge in the court below considers that the limitations imposed on the Rights of the subject or citizen under the provisions of the   PAGE| 5   sub-sections aforesaid make it absolutely necessary that, in all cases in which the citizen seeks to exercise his right under the provisions of Section 32(1) of the Constitution, it will until such time as specific provisions to the contrary relating to practice and procedure in respect thereof are made be necessary for the citizen to come to court by way of an action commenced by a Writ of Summons and not by any other process; and this is particularly so where the validity of an Edict is challenged in court.

The reason for this rather uncompromising stand of the learned trial Judge is to be found in his view that it is essential, in this type of case, to set out by pleadings delivered on both sides, for the consideration of the court all relevant facts which may assist the court in coming to a conclusion on the question whether any interference with the Rights of the Citizen under Sections 26 and 27 of the Constitution are justified by some of the provisions of the Edict challenged (if and when considered in the light of the limitations contained in the sub-sections of Sections 26 and 27 aforesaid). And it is the learned Judge’s view that the order for pleadings (or for detailed statements of facts) can only be made in an action commenced by a Writ of Summon   s. Yet again, the learned Judge in the court below takes the view that Rule (1) of Order 2 of the High Court Rules made under the High Court Law (Cap 61 in Volume IV of the 1963 edition of the Laws of Eastern Nigeria), applicable in the East Central State at the hearing in these proceedings must be complied with.

That rule provides that “every suit shall be commenced by a Writ of Summons signed by a Judge, Magistrate, or other officer empowered to sign a summons”; and as the expression “Suit” is defined by Section 2 of the High Court Law aforesaid as including “action, and a civil proceeding commenced by Writ of Summons” the learned Judge maintains in his ruling that “it is only if the present applicant can show that what is now before the court is not a suit that he can wriggle out of the firm grip of rule (1) of Order 2”.   We are satisfied that, in the main, the attitude adopted by the learned Judge in the foregoing passages of his ruling and as summarized in the paragraph immediately preceding stems, largely, from a misunderstanding of both Order 2 rule (1) and Section 16 of both the High Court Rules and the High Court Law aforesaid, respectfully. Order 35 of the High Court Rules aforesaid is clearly intended to make provisions for interlocutory. (NOT original) applications and certainly has no relevance to the matter under consideration.