Cunsin Nigeria Limited & Anor V. Inspecctor General of Police & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, OFR, J.C.A. 

The applicants brought an application ex-parte praying inter alia for leave to enforce their fundamental rights. Leave was granted on 11th day of August, 2004.

Learned trial judge heard learned counsel for the parties and adjourned the matter for ruling. In a reserved and not well considered ruling the learned trial judge concluded as follows-

“In view of the above, the Applicant cannot adopt the documents statement and verifying affidavit used in the Ex-parte by transferring it as they ought to have been filed separately along with the motion on Notice. I hold that the application is incompetent and this court has no jurisdiction to consider the submissions of counsel. They are hereby discountenanced”

(underlining mine)

The applicants were dissatisfied with the failure, refrain or refusal of the learned trail judge to determine the application after hearing all the parties on the merit. They have now appealed to this court on 3 grounds of appeal.

In accordance with the practice of this court, appellant filed their brief which was adopted and relied upon at hearing of this appeal. Respondents neither appeared nor filed their respective briefs of argument. I went through the courts file and found that the two sets of respondents were duly served with the appellants’ brief as well as the relevant hearing notice. Appellants’ brief was served on the learned counsel for 1st – 4th respondents on 15th May, 2006 while the solicitor for 5th and 6th respondents was served on the following day, 16th May, 2006 with the said process. Hearing notices were equally served on the two sets of respondents on 25th and 29th October, 2007 respectively.

At the hearing of the appeal, learned counsel for appellants adopted and relied on the appellants’ brief of argument in which, 4 issues were identified for determination of the appeal. Learned counsel for appellants withdrew the second issue which was struckout. The remaining 3 issues were consequently renumbered serially. He also related the three issues to the grounds of appeal from which they arose. Issue 1 ground 1, while issue 2 arose from ground 2 and issue 3 from ground 3. He had nothing further to urge outside the appellant’s brief of argument.

The remaining formulations read as follows-

“(i) whether the learned trial judge was right in holding that Order 2(2)(1) (sic) of the Fundamental Rights (Enforcement Procedure) Rules 1979, is to the effect that an application under the Rules on Notice (after leave had been obtained) must be filed together with both statement of facts and (verifying the facts) and that failure to do so is fatal and will render the Application incompetent.

(ii) Whether the reamed trial judge did not misdirect herself in the consideration of the case of OYEWOLE v SHEHU (1995) 8 NWLR (Pt.414) at 480 when she held that her court lacked jurisdiction to consider the submissions of counsel to the Applicants due to the fact that the applicants did not file the statement of facts and verify affidavit together along side the Motion on Notice.

(iii) Whether the learned trial judge was right when she raised suo motu the issue of non-filing of statement and verifying affidavit without inviting counsel on both sides to address her on same and subsequently held that the application was incompetent and that the court did not have jurisdiction.”

The only issue calling for consideration and determination in this appeal is whether the appellants are required to support their notice of motion and summons with fresh statement and affidavit of facts.

In arguing the first issue, the learned counsel for appellants, in the appellants’ brief, read the provisions of Order 1 rule 2 (3) and Order 2 rule 1(3) and rule 2(3) of the fundamental Rights (Enforcement Procedure) rules 1979. Learned counsel then submitted that the learned trial Judge erred in holding that Order 2 rule 2(1) of the Rules is to the effect that an application under the rules must be filed after leave had been obtained together with the statement of facts and verifying affidavit. Learned counsel further contended in the brief that the rule did not require that a verifying affidavit and statement of facts should be attached to the motion on notice rather it states that copies of the statement in support of the motion for leave must be served with the motion on notice or summons. Learned counsel then submitted that the learned trial judge imported a non-existence word into the relevant law to give it a misconceived result.