Chuba Chukwuogor & Ors V. Chukwuma Chukwuogor & Anor (2005)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal against the ruling of Justice M.O. Eneji of the High Court of Cross River State, Ikom Judicial Division, delivered on 13/8/2003 striking out the application of the appellants to enforce their fundamental rights.

The facts, which led to this case on appeal, were that on or about the 27/3/01, the appellants, as applicants, filed an application ex parte for leave to enforce their fundamental rights. Leave was accordingly granted by Obasse J. on 28/3/01 and adjourned the matter to the 10/4/01 for the hearing of the motion on notice. The appellants filed the motion on notice with the accompanying statement and verifying affidavit on 3/4/01. Upon being served with the motion on notice, the 1st respondent filed a notice of preliminary objection dated 28/5/01 challenging the bearing of the appellants’ application for the enforcement of their fundamental rights. For reasons which are not germane or relevant to this appeal. the arguments on the objection were not heard until the 26/3/03 and concluded on 8/5/03 by Hon. justice M. O. Eneji who took over from Justice J. U. Obasse.

At the conclusion of arguments on the preliminary objection, the matter was adjourned for ruling to the 24/6/03. The ruling was not ready on 24/6/03 and it was further adjourned to 13/8/03. On 13/8/03, the learned trial Judge delivered the ruling in which he upheld the objection of the 1st respondent and struck out the appellants’ motion for the enforcement of their fundamental rights on the ground that they did not personally file affidavit of service.

Aggrieved by the ruling of the trial court striking out their motion prematurely, the appellants appealed to this court on 22/8/03 on three grounds. The appellants in their brief dated 11/11/04 and filed on 26/11/04, distilled 2 issues for determination from the 3 grounds of appeal namely:

1. Whether the learned trial Judge was right in his interpretation and application of the provisions of Order 2 rules (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules in striking out the appellants’ application for the enforcement of their fundamental rights because they did not personally file affidavit of service?
2. Whether the learned trial Judge’s refusal to act on the proof of service in his file by both the bailiff of the High Court and counsel to the appellants, which service was not disputed by the respondents, is proper in law.?”

The 1st respondent formulated a single issue for determination in his brief of argument dated 3/2/05 and filed 28/2/05 with leave of the court granted on 3/5/05 and are deemed properly filed. The issue for determination is as follows:

“‘Whether the learned trial Judge was right in striking out the appellants’ application for failure to comply with express and mandatory rules regulating the enforcement of fundamental rights?”

The 2nd respondent in his brief filed on 17/8/05 with leave of this court and deemed properly filed by this court on 13/9/05. The 2nd respondent adopted the two issues for determination formulated by the appellants.

Counsel for the parties all adopted and relied on their respective briefs at the hearing of the appeal before this court. I have carefully considered the issues for determination formulated by the parties in this appeal and in my opinion the two issues formulated by the appellants and adopted by the 2nd respondent over-lap and they ought to be taken together. Indeed, the appellants and the 2nd respondent actually argued the two issues together in their respective briefs. In my view, the lone issue for determination formulated by the 1st respondent in his brief is more concise and comprehensive. I shall therefore adopt the lone issue raised in the 1st respondent’s brief for the purpose of determining this appeal.

In arguing the 2 issues formulated by the appellants together, Mr. Ukweni submitted that the court below was wrong when it held that it is mandatory for the applicant for the enforcement of fundamental rights to personally serve the motion or summons and to personally file affidavit of service under the provisions of Order 2 rule 1 (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules. It was submitted that nowhere is it provided in the said rules that the applicant must personally serve the motion or summons on all the respondents or persons listed in the motion and that the applicant must personally file an affidavit of service. It is therefore wrong to read or to import into a statute what is not there as that will do violence to the plain meaning of the statute. He referred to U.I.T.H. v. Akilo (2000) FWLR (Pt. 28) 2286 at 2294 – 2295, (2001) 4 NWLR (Pt. 703) 246 and Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1.

Counsel submitted that the interpretation given by the learned trial court is narrow and technical and this approach to interpretation of statutes is what the Supreme Court and this court have variously condemned.

He also submitted that the Fundamental Rights (Enforcement Procedure) Rules made no provision on the mode of service of processes but the practice of our courts, which is known and applied on daily basis is that service of court processes, particularly originating processes, is the responsibility of the sheriff, deputy sheriff, bailiff, officer of the court or any other person appointed by the court or Judge in chambers to do so. See Order 12 of the High Court of Cross River State (Civil Procedure) Rules 1987 and Pavex Co. (Nig.) Ltd. v. I.B.W.A. Ltd. (2000) FWLR (Pt. 26) 1891, (2000) 7 NWLR (Pt.663) 105; Rector, Kana State Polytechnic v. Dan’agundi (2002) FWLR (Pt. 127) 1058 at 1067. Mr. Ukweni pointed out that there were the affidavits of service filed by the bailiff of the trial court on 26/6/02 and that filed by Bassey Okim on 9/11/01.

Counsel concluded that it was wrong for the court below to strike out the appellants’ application because they did not file the affidavit of service. He was of the view that the court should, have pursuant to the provisions of Order 2 rule 1(5) of the rules, adjourned the hearing on such terms, if any, as it or he may direct in order that the motion or summons may be served on that person.

Mr. Matthew Ojua, for the 1st respondent, submitted that the applicant must comply with mandatory rules of court particularly in fundamental rights enforcement matters. Adherence to the rules help in the fair and quick dispensation of justice. He referred to Solanke v. Sowefun (1974) 1 SC 141 at 150. He also referred to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and submitted that it is mandatory that an affidavit of service must be filed before the motion is listed for hearing and such affidavit shall be before the Judge on the hearing of the motion and the duty of filing the affidavit of service is on the applicant and not on the court bailiff. He relied In Re Appolos Udo (1987) 4 NWLR (Pt. 63) 120 at 126; Onyemaizu v. Ojiakor (2000) 6 NWLR (Pt. 659) 25. Counsel pointed out that the affidavit filed by the court bailiff is not in the record of appeal and the appellants have neither challenged the record nor have they brought an application for additional records to make the said affidavit part of the record of appeal. Counsel also pointed out that the phantom affidavit of service was allegedly filed on 26/6/02, which is 13 months after the objection was filed and 17 months after appellants’ counsel filed an affidavit of service and 14 months after the date the matter was listed for hearing.