Director Of State Security Service & Anor. V. Olisa Agbakoba. (1999)

LAWGLOBAL HUB Lead Judgment Report

L. UWAIS, C.J.N

This is an appeal from the decision of the Court of Appeal, Lagos Division (Kalgo, Uwaifo and Ayoola, H.C.A. as they were then). The respondent was the applicant in the High Court of Lagos State, holden at Lagos, (Akinboboye, J.) while the appellants were the respondents in a motion on notice brought under the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62, in which the following reliefs were sought:-

“1. A declaration that the forceful seizure of the applicant’s passport No. A654141 by agents of the State Security Services (sic) (1st respondent herein) on April 21, 1992 is a gross violation of the applicant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement respectively guaranteed under sections 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) and is accordingly unconstitutional and illegal.

2. An order of mandatory injunction directing the respondents to release applicant’s passport No. A 654141 to him forthwith.
3. An order of perpetual injunction restraining the respondents from seizing the applicant’s passport without cause, or in any other way violating the applicant’s rights to personal liberty, freedom of thought, expression and freedom of movement as guaranteed by the provisions of the 1979 Constitution aforementioned.
4. And for further consequential order(s) as this honourable court may consider appropriate in the circumstances.”

The facts of the case which were not contested by the appellants are as deposed in the affidavit sworn to by the respondent in support of his application. They are briefly as follows. The respondent is a legal practitioner. He was at the material time also the President of a non-governmental human rights body based in Nigeria which is known as the “Civil Liberties Organisation” (CLO). In his capacity as President of the CLO he was involved in international activities which were aimed at enhancing the growth of non-governmental organizations (NGOs) concerned with human rights.

The respondent was invited by the Netherlands Organization for International Development and Cooperation (NOYIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992. On 21st April, 1992, the respondent intending to attend the conference went to Murtala Mohammed International Airport, at Ikeja, Lagos. However, he could not board the plane to the Hague because he was stopped by officers of the Nigerian State Security Service (SSS). The officers impounded his passport without giving any reason for doing so and merely directed that he should report the next morning to the headquarters of the SSS at No. 15A, Awolowo Road, Ikoyi, Lagos, for further action. On keeping the appointment on that day, the respondent was informed that the Director of the SSS whom he was to report to was not available. Thereafter other appointments were given to the respondent but on each of such occasions he was not able to meet the Director. During one of such visits to the headquarters, the respondent was directed by an official of the SSS to forward his complaints to the Attorney-General of the Federation (2nd appellant).

On 29th April, 1992 the respondent wrote a letter to the 2nd appellant which reads as follows:-

“April 29, 1992.

The Attorney-General of the Federation,

Attorney-General’s Chambers,

Federal Ministry of Justice,

Marina, Lagos.

Dear Sir,

On seizure of my passport

I write to notify you about the seizure of my passport on the night of April 21, 1992.

I was scheduled to visit The Hague for a conference on human rights and development on the invitation of the Netherlands Organisation for International Development Co-operation. I was quite astonished that officers of the State Security Service would deny me ‘permission’ to leave the country. As the Honourable Attorney-General himself had announced sometime ago, the policy of the Federal Government no longer extended to withholding passports of people who want to travel out of the country. I thought 1 ought to bring this to your attention.

Yours sincerely,

(Signed)

Olisa Agbakoba.”

The respondent deposed in the affidavit that the seizure of his passport had caused him embarrassment and adversely affected his human rights activities. It was as a result that he brought the motion on notice before the High Court.

A statement was filed in the High Court by the respondent, pursuant to the provisions of Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62, which inter alia states the grounds upon which the aforementioned reliefs were sought, namely:

“1. The forceful seizure of the applicant’s passport is a gross violation of his rights to move freely into and out of Nigeria, which right is guaranteed under section 38(1) of the Constitution of the Federal Republic of Nigeria.

2. The forceful seizure of the applicant’s passport as aforesaid is a gross violation of his right to receive and impart ideas and information without interference, which right is guaranteed under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1979.”

The respondent’s motion was served upon the appellants on the 16th July, 1992. On the 24th July, 1992 a Senior State Counsel appeared before the learned trial Judge on behalf of the appellants and requested for time to file a return. This was granted and the hearing of the application was adjourned to the 29th July, 1992. By that date no return was again filed by the appellants. Further adjournment was granted, at their counsel’s request, to the 30th July, 1992, but they still failed to file the return nor did they file a counsel affidavit to the respondent’s affidavit in support of the application. After hearing address by the respondent’s counsel, the learned trial Judge, in dismissing the application, ruled as follows:”

Respondents in this case failed to depose to any counter-affidavit, therefore, there is no pleading (sic) before the court for the defence. Applicant seeks this declaration judgment (sic) in default of respondents’ pleadings. He has stated in his affidavit evidence that he has a right under section 38 of the 1979 Constitution of entry into Nigeria and exit therefrom.

But he failed to satisfy this court that the passport is his personal property. For the passport refers to the holder as ‘the bearer not the owner.’ Since it has been decided that the court should not make it a practice to make declaration of right in default of pleadings, this application cannot succeed on this ground and it must fail in the first leg.

The next relief sought is a mandatory injunction directing the respondents to release to the applicant passport No. A654141 to him forthwith. Before an order of injunction is made, the applicant must be able to establish his legal right. This was the decision of the court in the case of Green v. Green (1987) 3 NWLR (Pt. 61) 48 at p. 82…

This is an undefended case however and applicant never established by his affidavit evidence that he has a legal right to the passport asked to be released by the respondents. More especially then, one brings to mind the words contained in the paragraph previously referred to and titled – ‘caution’ wherein it was clearly stated that –

‘This passport remains the property of the Nigerian Government and may be withdrawn at any time.’

as the applicant has failed to rebut the above statement by any of his affidavit evidence, he has failed to establish a legal right to the order sought to warrant as at this stage to grant the order of mandatory injunction to compel the respondents to release the passport. This application must therefore also fail.”

Aggrieved by the ruling, the respondent herein, appealed to the Court of Appeal against it. Both the parties filed their respective briefs of argument, but the appellants herein were not represented at the hearing of the appeal. After hearing counsel for the respondent herein, the Court of Appeal allowed the appeal and set aside the decision of the learned trial Judge. In his lead judgment, Ayoola, J.C.A. (as he then was), with whom the other learned Justices agreed, held as follows after alluding to the definition of passport” in both Jewitt’s Dictionary of English Law and Black’s Law Dictionary:-

‘In so far as passport is a certificate of identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of the discretion by a foreign state, which at international law it has in the reception of aliens into its territory. To that extent a passport is normally an essential document for entry into foreign countries … I also hold that the possession of a passport in modern times makes exit out of Nigeria possible … The issue that follows from this conclusion is whether the possession of a passport or its withdrawal has any relevance to the constitutionally guaranteed freedom of movement, including the right of exit from Nigeria, with which this case is directly concerned … It can thus be seen that while the seizure of passport by a government agency such as the 1st respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad and an evident clog on the exercise of his right of freedom of movement.”

On the issue of the statement in the passport that it remains government property and may be withdrawn at any time, the learned Justice held:-

“It will be affronts to all known human rights norms were the right to freedom of exit specifically guaranteed by our Constitution to be drained of all effect by derogating to the Government a discretionary and most arbitrary power to withhold, withdraw or revoke a passport.

There is a conflict in the statement that the passport remains the property of the Government of the Federal Republic of Nigeria and the right which accrues to every citizen to hold such a passport. The consequence of a passport being the properly of the Government is that the holder cannot deal with it as he pleases. He cannot transfer, sell or otherwise dispose of it. If for instance he ceases to be a citizen of Nigeria, he has an obligation, if requested, to return it to the ‘owner’, and the Nigerian Government as the owner of the passport has a right to recover the passport from anyone else who is not entitled to hold it. All these consequences of ownership have nothing to do with the right which a citizen of Nigeria has to be a holder of a Nigerian passport or a right not to have one issued to him impounded other than as provided under a law which meets the standard set by the Constitution …

“I feel no hesitation, therefore, in coming to the conclusion that the right not to have a passport impounded, which is the right with which this case is directly concerned, is a necessary concomitant of the freedom of exit which is guaranteed by section 38(1) of the Constitution and art 12(2) of the African Charter. I also hold that the statement on the Nigerian passport that ‘a passport may be withdrawn at any time’ is neither in accord with the Constitution nor with any law applicable in Nigeria. It is inconsistent with the Constitution of Nigeria and the Passport (Miscellaneous Provisions) Act, Cap. 343 Laws of the Federation of Nigeria. Such a statement which does not now represent the law should now be modified to reflect the true state of the law. 1 am of the clear view that the learned Judge was in error in the view she took that a citizen of Nigeria has no constitutional right to possession of a passport.”

The learned Justice concluded the lead judgment thus:-

“To sum up, I accept the submission of the appellant that the freedom of exit guaranteed by our Constitution cannot be exercised without a passport and that (sic) freedom enshrined in section 38(1) of the Constitution carries with it a concomitant right of every citizen of Nigeria to a passport. 1 also accept the submission and hold that the seizure of the appellant’s passport amounts to a violation of his right to travel abroad guaranteed by section 38(1) of the Constitution …..

He then considered the relief to be granted stating as follows:-

“I am of the view that in slightly modified terms the appellant is entitled to the declaratory relief he claimed and I would grant it. He is also entitled to the injunction he seeks directing the respondent to release his passport. The injunction sought to restrain the respondents from seizing the applicant’s passport without cause is not only too wide in its terms but is also unsupported with any fact to show that there is any threat that in future his passport will be seized without cause or at all. 1 would refuse that injunction sought.”

Dissatisfied with the decision, the appellants herein, who hitherto treated the case with disdain and shunned appearance, decided to appeal against it in this court. They filed a joint brief of argument in which they identified 4 issues for us to determine:-

”3.01 Whether the Court of Appeal was right in holding that the right of exit from Nigeria guaranteed by section 38(1) of the Constitution carries with it a concomitant (sic) right to hold or own a passport. Put the other way, does section 38(1) of the Constitution confer an unlimited right on every Nigerian to hold a passport which cannot be withdrawn or canceled or otherwise interfered with.

3.02. Whether, if the answer to the issue No. 1 is affirmative, such right was not derogated from by section 41(1) of the Constitution, section 5(1) of the Passport (Miscellaneous Provisions) Act, Cap. 343 of the Laws of the Federation (of Nigeria) 1990 and/or the inscription at the back of the passport that the passport is the property of the Federal Government.

3.03. Whether the court below was right in granting a declaratory relief in favour of the respondent when there was admission and default of pleadings on the part of the appellant.

3.04. Whether the court below was right in holding that the respondent has a right to hold a passport when the respondent did not disclose any existence of a right or an infringement of a right in his affidavit.” (parenthesis mine).

In his brief of argument, the respondent formulated only one issue for determination and it reads:-

“Whether the right to travel out of Nigeria (as guaranteed under section 38 of the Constitution of the Federal Republic of Nigeria, 1979) carries with it a right of every Nigerian citizen to hold a passport.”

A notice of preliminary objection was raised in the respondent’s brief of argument challenging the reference to section 5(1) of the Passport (Miscellaneous Provisions) Act, Cap. 343 in appellants’ brief of argument, since the point was not raised in the lower court by them. Furthermore, as a fresh point, to raise it before us, leave to do so must first be obtained and that the appellants had failed to obtain the leave. The case of Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 at p. 22 C-D was cited in support of the objection. In their reply brief, the appellants denied that the point in question had not arisen in the court below. They argued that it was the respondent who raised it first in his (appellant’s) brief of argument as an issue for determination and argued the point in paragraph 4.06 of that brief; while Ayoola J.C.A. and Uwaifo J.C.A. also adverted to the point in their respective judgments.

I have read through the references made in the appellants’ reply brief and I am satisfied that section 5 subsection (1) of the Passport (Miscellaneous Provisions) Act, Cap. 343 was cited by the respondent in his (appellant’s) brief of argument and that the court below also dwelt on the point. I, therefore, see no merit in the preliminary objection and it is hereby overruled.

I now turn to the appellants’ issues for determination. Arguing issue No. 3.01, it is stated by learned Solicitor-General, for the appellants, in their brief of argument, that the respondent is obliged to show that section 38(1) of the Constitution confers on him a right not only of ingress or egress to and from Nigeria but also a constitutional right to hold or own a passport. He submitted that the right of exit from Nigeria must be distinguished from the right to hold a passport – which cannot be derogated from either by impounding or withdrawing the passport. He referred to the provisions of section 38(1) and further canvassed that whilst it is clear from the express provisions thereof that no Nigerian should be denied exit from Nigeria, nowhere is it stated that such exit must be with a passport or a visa in order to make the right of exit coterminous with the right to own or hold a passport. He argued that the Court of Appeal in holding that the right under section 38(1) is concomitant with holding a passport sought to provide a missing link between the right to move freely and the right to hold or own a passport and that the court was in error to have held so since it sought to provide a link that was not contemplated by the Constitution. He cited the cases of Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546; (1990) 21 NSCC (Pt. 1) 306 at p. 328; Abel v. Lee (1871) LR.R. 6C p. 365 at p. 374: Mersey Docks v. Henderson (1888) 13 Appeal Cases 595 at p. 602; Crawford v. Spooner (1846) 6 Moore P.C. 2; Nafiu Rabiu v. State (1981) 2 NCLR 293 at pp. 304 and 326 and Ahdulkarim v. Incar Nig. Ltd. (1992) 7 NWLR (Pt .251) 1 at p. 17. Learned Solicitor-General also drew attention to the Court of Appeal’s reliance on cases from Britain, United States and India to interpret the provisions of section 38(1) and submitted that the court was in error in doing so since the decisions in the cases were based on the Constitutions of those countries, the relevant provisions of which are not in pari materia with those of the Nigerian Constitution. He also argued that the cases cited deal with the right to be issued a passport and not the seizure of passport. He submitted that there is no right under our Constitution for a citizen to possess a passport. He stressed that having a right to travel out of Nigeria under the Constitution is not in doubt, but to be able to exercise the right one would need a number of other things and documents, such as a passport, an air ticket, a visa, a boarding pass and a health certificate, all of which cannot be considered to be part of the right under section 38(1) to travel out of Nigeria.

Learned Solicitor-General then submitted that the Court of Appeal failed to appreciate, in interpreting section 38( I), that the possession of a passport is neither a civil nor statutory right under the Nigerian municipal laws, since the grant or issuance of a passport is a prerogative of the Federal Government of Nigeria, the exercise of which is discretionary. To buttress the submission he cited the definition of a “passport” in the case of King v. Brailsford (1905) 2 KB 730 per Lord Alverstone. C.J.

In his reply, learned counsel for the respondent argued that the Court of Appeal did not fill any gap in interpreting the provisions of section 38(1) of the 1979 Constitution. Rather, it interpreted the provisions to give effect to its intendment, by holding that the right of exit in the section cannot be exercised without a national passport and that being so, the right to passport is concomitant and inseparable corollary of the right of exit. It is inconceivable, whether factually or by right, that a right would be given and the essential facility for its effectiveness would be denied. Learned counsel then submitted that an executory right, such as the right of exit, carries with it the rights necessary to its effectiveness and there is a corresponding duty on the State to provide the facilities. After citing the cases of Nafiu Rabiu v. The State (supra) at p. 326 and Ogugu v. The State (1994) 9 NWLR (Pt. 366) 1 at pp. 27H-28A and 43H, learned counsel submitted that the respondent’s right to hold a Nigerian passport is inevitable and logical corollary his right to foreign travel guaranteed under section 38(1) of the 1979 Constitution and article 12(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 of the Laws of the Federation of Nigeria, 1990. The respondent also argued that the impounding of his passport by the appellants was an infringement of his right because by so doing he could not leave the country.

The respondent delved into the status of a passport in immigration law and the practice of international travels, by referring to section 38(1) of the Constitution, articles 12(2) and 13(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, sections 4(1)(a) and 6 of the Immigration Act, Cap. 171of the Laws of the Federation of Nigeria, 1990and cited some foreign cases.

I think all the foregoing argument and submissions appear to beg the issue. The actual position is that the respondent was a holder of a passport which was impounded by an official of the 1st appellant. The simple question then is: did the official have the right to seize the passport If so, under what law did he do so If these twin questions are answered, all the issues in the appellants’ brief of argument, except issue No. 3.03, and the only issue in the respondent’s brief of argument would have been dealt with. I, therefore, propose to just do that.

Now, section 38 subsection (1) of the 1979 Constitution which guarantees the freedom of movement to every Nigerian citizen provides as follows:

“38(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. ”

However, section 41 subsection (1) of the 1979 Constitution, as amended, qualifies the provisions of section 38. It provides:-

“41(1) Nothing in sections 34, 35, 36, as amended, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) in the interest of defence, public safety, public order, public morality or public health: or

(b) for the purpose of protecting the rights and freedom of other persons.”

By section 5 subsections (1) and (2) of the Passport (Miscellaneous Provisions) Act, Cap. 343 –

“5(1) The Minister may at any time, cancel or withdraw any passport issued to any person if-

(a) the passport is obtained by fraud;

(b) the passport has expired;

(c) a person unlawfully holds more than one passport at the same time;

(d) it is in the public interest so to do.

(2) The number of the passport, name and particulars of the holder of any passport withdrawn or cancelled pursuant to the provisions of subsection (1) of this section shall be published in the Federal Gazette. ”

It is clear from the foregoing that the Minister of Internal Affairs has the power to cancel or withdraw a passport for any of the reasons given under the provisions of section 5 subsection (1)(a), (b), (c) or (d); and such powers derogate from the provisions of section 38(1) of the Constitution. However, in doing so, the name, the particulars of the passport holder and the number of the passport must be published in the Federal Gazette. It is obvious from the facts of this case that no explanation was offered in the High Court by the appellants; and so it has to be taken that no information was given in the Gazette pursuant to the provisions of section 5 sub-section (2) of the Passport (Miscellaneous Provisions) Act, Cap. 343. Again from the facts deposed, the respondent’s passport was not withdrawn or impounded by the Minister but by an official of the SSS. Whether the official had the authority of the Minister to do so is not stated by the appellants either.

The power of a Minister to delegate his powers under a statute is contained in section 3 of the Ministers’ Statutory Powers and Duties (Miscellaneous Provisions) Act, Cap. 228, which provides:-

“3.(1) Where by any law enacted by the National Assembly or taking effect as if it had been so enacted, a Minister is empowered to exercise any powers or perform any duties, he may by a delegation notified in the Federal Gazette depute any of the following officers by name or office to exercise those powers or perform those duties, subject to such conditions, exceptions and qualification as the Minister may prescribe –

(a) the Director-General (Permanent Secretary) having supervision over a department of government with which the Minister has been charged with responsibility, or any officer who comes directly under the authority of such Director-General;

(b) any officer of any such department of government;

(c) any officer of the police with the consent of the Nigerian Police Councilor of the Police Service Commission of the Federation, as the case may require;

(d) any other public officer with the consent of the Minister charged with responsibility for the functions exercised by such officer; or

(e) any officer in the public service of a State with the consent of the Governor of the State.

(2) No power to sign warrants, or to make regulations, rules, by-Laws or orders shall be deputed under this section.

(3) Any delegation made under the provision of this section shall be revocable at will and no delegation shall prevent the exercise of any power by the Minister concerned.”

Although, admittedly, it was possible for the Minister of Internal Affairs to delegate his powers to cancel or withdraw a passport under the Passport (Miscellaneous Provisions) Act, Cap. 343, by virtue of the foregoing provisions, there is no suggestion by the appellants that such powers were exercised by the Minister to enable the official of the SSS concerned to withdraw the respondent’s passport.

The duties of the SSS are spelt out under section 2 subsections (3) and (4) of the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990. It provides:-

“2.(3) The Stale Security Service shall be charged with responsibility for-

(a) the prevention and detention within Nigeria of any crime against the internal security of Nigeria;

(b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and

(c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, Commander-in-Chief of the Armed Forces, as the case may be, may deem necessary.

(4) The foregoing provisions of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned.”

These provisions cannot, by any stretch of imagination, be interpreted to empower the officials of the SSS to seize, impound or withdraw a citizen’s passport.

In the light of the foregoing, I am satisfied that the official of the SSS concerned in this case had no power to impound or withdraw the respondent’s passport in the manner he did. The impounding was, therefore, unconstitutional and illegal since it offended the provisions of section 38 subsection (1) of the Constitution and section 5 subsection (1) of the Passport (Miscellaneous Provisions) Act. The right to have freedom of movement and the freedom to travel outside Nigeria is guaranteed by the Constitution but the right to hold a passport is subject to the provisions of the Act. In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad is concomitant with the right to hold a passport. The real issue in contention here is not whether the respondent had a right to hold a passport. He in fact had a passport already but which was impounded by an official of the SSS. It is whether such an act by the official was legal and constitutional.

The foregoing, therefore, disposes of the substance of issues Nos. 3.01, 3.02 and 3.04 in the appellant’s brief of argument as well as the only issue in the respondent’s brief of argument.

It now remains to deal with appellant’s issue No. 3.03 which raises the question whether the Court of Appeal was right in granting the declaratory relief sought by the respondent in default of pleadings by the appellants.

In her ruling the learned trial Judge decided on the point as follows:”

Therefore, even though this action (sic application) is undefended, it is necessary to examine whether applicant has fully satisfied the court on his rights to warrant the ground for declaratory of right judgment (sic) being entered in favour of the applicant as sought in default of pleadings from respondents. In the case of Ozowala v. Ezeiheshie (1991) 1 NWLR (Pt. 170) 699 at p. 706 paragraph F to G His Lordship Uwaifo, J.C.A. held and I quote:-

‘But where a declaration of right is involved, it is inappropriate to come by way of motion, since a declaration of right cannot be made on pleadings – see Wallersteiner v. Moir (1974) 3 All E.R 271 (sic 217) 251 where Buckley, LJ said

“It has long been my experience, and I believe it to be a practice of long standing, that the court does not make declarations of right either on admission or in default of pleadings … but only if the court is satisfied by evidence.” ,

See also Faponle v. University of Ilorin Teaching Hospital Board Management (1991) 4 NWLR (Pt. 183) 43 at 45, ratio I where it was held as follows:-

‘A declaratory judgment being at the discretion of the court, to grant can only be given where the justice of the case warrants it having regard to the pleadings and evidence led in proof by the plaintiff in which he discharges the onus of proof under section 136 of the Evidence Act. A declaratory judgment cannot therefore be granted on admission by the pleadings. Thus the plaintiff must have proved his case and the justice of the case must merit the declaration sought more than any other remedy – Bella v. Eweka (1981) 1 SC 102-3 referred to and followed.’

Respondents in this case failed to depose to any counter-affidavit therefore there is no pleading before the Court for the defence (sic). Applicant seeks this declaratory judgment in default of respondents’ pleadings n. this application cannot succeed on this ground and it must fail in first leg.”

In considering the foregoing, the Court of Appeal held, per Ayoola, J.C,A., as follows:-

“Since I hold the view that the principle in Wallersteiner v. Moil does not apply in this case and that the issue raised by the appellant in, regard thereto does not arise in the instant appeal, it is not necessary to consider the rational basis of the principle which may throw some light on the proper boundaries of the principle.

It suffices to note that for enforcement of fundamental rights special procedure has been established by law as prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 1979…

In these circumstances, it is difficult to comprehend the equation of the special procedure with the normal procedure in actions tried on the pleadings and to which rules of pleadings apply The principle in Wallersteiner v. Moir does not apply in this case because this is not a case in which the court has been asked to make a declaration on admission or in default of pleading or without evidence.”

Learned Solicitor-General contend that declaratory judgments are not granted as of right but subject to certain conditions and restrictions -Ipadeola v. Oshowole, (1987) 3 NWLR (Pt 59) 18 and Orji v. Emovan (1991) 1 NWLR (Pt. 168) 476 – and nowhere under the principles laid by these case was a distinction made between a declaration sought under a writ of summons and one sought under the Fundamental Rights (Enforcement Procedure) Rules. He submitted that the principle in Wallersteiner’s case applies to admissions whether made under pleadings or in the enforcement of a fundamental right; and when the appellants failed to file a counter-affidavit in reply to the respondent’s affidavit in the motion on notice, the appellants were deemed to have admitted all the facts deposed in the affidavit. The Court of Appeal failed to advert to the point on admission and only considered the point on default of pleadings. It was argued that had it done so, it would have come to the conclusion that a declaratory relief could not be granted since there was admission by the appellants herein.

In reply, learned counsel for the respondent, submitted that the ratio decidendi in Wallersteiner’s case does not apply to the case in hand by virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which exclude pleadings and permit only affidavit evidence. Now, I think the court below was right in holding that the lower court misdirected itself in relying on the procedural principles laid down by Wallersteiner’s case which was approved by the Court of Appeal (Uwaifo, JCA.) in Ozowale’s case (supra). Order 2 rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, provides:-

“1.(1) When leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate court… Form No.1 or 2 in the Appendix may be used as appropriate.

From these, it is obvious that there cannot be any pleadings where a motion on notice is brought because the deposition in the affidavit in support of the motion on notice is not the same as mere averments in a statement of claim or statement of defence which have to be supported with either a viva voce evidence or documentary evidence. In the case of an affidavit accompanying the application it is infact the evidence in support of the motion on notice.

Similarly, an originating summons is not the same as writ of summons. In the case of the former no pleadings are employed while in the case of the latter there are pleadings in the form of statement of claim, statement of defence, reply etc. _see Re Busfield, Whaley v. Busjield (1886) 32 Ch. D 123 CA. at p. 126 and Re Holloway, ex parre Pall;ster (1894) 2 Q.B. 163, CA. at pp. [66 and 167.

With the vital distinction between an originating summons and a writ of summons it was wrong of the learned trial Judge to bring to bear on this case the principle laid down by the cases of Wallersteiner’s (supra) and Ozowala (supra).

The Court of Appeal was, therefore, right in holding that the trial court acted wrongly in following the principle in the cases mentioned to hold that the respondent’s prayer for a declaratory relief had failed. A Concise Law Dictionary, Fourth Edition, by Osborn, in defining the word “summons” on p. 824 thereof defines the term “originating summons” to include every summons other than a summon in a pending cause or matter. It is used in the Chancery Division instead of a writ of summons to obtain a declaration or decision of the court in the construction of an instrument or of a statutory provision as in the present case. I, therefore, come to the conclusion that the Court of Appeal was right in rejecting the application of the principle laid down in Wallersteiner’s case. I hold that the application of the principle is limited to cases initiated by a writ of summons which call for pleadings and the calling of witnesses to testify or admission by way of averments in the pleadings.

On the whole this appeal fails and it is hereby dismissed. The decision of the Court of Appeal is hereby confirmed with N10,000.00 costs to the respondent.

---

SC.5/1995