Felix A. Uwa V. Sunday Etim Akpan & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court Calabar delivered on Tuesday the 27th day of March, 2007 in Suit No- FHC/CA/CS/28/2006 wherein the trial Court entered judgment against the appellant.

The background of this matter is that the 1st and 2nd Respondents had on the 22nd day of March, 2006 filed on application for the enforcement of their fundamental rights as enshrined in section 35 of the constitution of the Federal Republic of Nigeria 1999 praying the lower Court for leave to apply by reasons of violation of their fundamental rights as enshrined in section 35 of the constitution of the Federal Republic of Nigeria 1999, and for such further or other orders as the lower Court may deem fit to make in the circumstances.

The application was made exparte and on that same date the lower Court granted the 1st and 2nd Respondents leave to apply for the enforcement of their fundamental rights, also ordering that the appellant shall be put on notice. A return date was fixed for the 19th day of June, 2006. On the 6th day of June, 2006 the 1st and 2nd Respondents filed a motion on notice praying the lower court for the enforcement and protection of their fundamental right in term of their reliefs sought in the statement accompanying the affidavit verifying the facts in support of the application for leave.

On the 30th day of November, 2006 the lower Court ordered written addresses to be filed by the parties through their address on the 15th day of December in argument of their motion on notice filed on the 6th day of June 2006. The appellant on 17th day of January, 2007 filed a reply to the 1st and 2nd Respondents argument. A rejoinder on points of law was filed by the 1st and 2nd Respondents on the 23rd day of January, 2007. After filing written addresses, the trial Judge adjourned the case for judgment which was delivered on the 27th day of March, 2007.

In a considered judgment the trial judge found that the appellant and another had violated the right of the 1st and 2nd respondents and ordered that the 1st and 2nd respondents in this appeal be compensated with the sum of N500.000.00 (Five hundred thousand naira) to be paid jointly and severally by the appellant and another who sued respondents before the lower court The appellant was dissatisfied and therefore filed this appeal.

In the appellant’s brief of argument two issues have been formulated for the determination of this appeal. They read as follows:-

1 Considering the decision of the Calabar High Court in Suit No- HC/MSC.328/2004 whether or not Suit No:FHC/CA/CS/28/2006 filed before the lower Court does not constitute an abuse of Court processes and the applicants estopped from filing further detective (sic) applications in the Federal High Court, Calabar.

2. Considering the processes filed whether or not the application of the respondents violates the provisions of Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules – grounds 2, 4 and 5.

In the Respondents brief of argument two issues have been formulated for the determination of the appeal. They are as follows:-

Whether the Respondents in bringing Suit No: FHC/CA/CS/28/2006 at the lower court complied with the procedural requirement of the Fundamental Right (Enforcement Procedure) Rules.

2. Whether Suit No:FHC/CA/CS/28/2006 was competent before the lower Court and not an abuse of the Court process.

It is to be noted that the 1st and 2nd Respondents filed an application to enforce the, fundamental rights in Suit H/CMSC.328/2004 before the Calabar High Court. The said High Court heard the matter and struck it out for want of junction. Subsequently the 1st and 2nd Respondents brought the same application to the Federal High Court, Calabar Division in Suit FHC/CA/CS/28/2006, wherein Judgment was entered against the appellant.

I think considering of the issues as formulated in the appellant’s brief of argument will be sufficient to determine this appeal. I will therefore consider them.

The first issues is considering the decision of the Calabar High Court in Suit No:HC/MSC.328/2004 whether or not, Suit No.FHC/CA/CS/28/2006 filed before the lower court does not constitute an abuse of court process and the applicant estopped from filing further application in the federal High Court Calabar. There is no need to dwell much on this issue as it is clear that the trial court who earlier heard the matter struck it out on the ground of procedural irregularities. The said trial Court held that its jurisdiction was not properly invoked because of the applicant’s failure to comply with the provisions of Order 1 Rule 2(3) of the Fundamental Right (Enforcement Procedure) Rules 1979. Thus the suit was not dismissed but merely struck out. Thus the matter was not decided on merit. This issue is decided against the appellant. Thus Suit No: FHC/CA/CS/28/2006 was competent before the lower court and not an abuse of the court process.

The next issues is whether the respondents in bringing Suit No: FHC/CA/CS/2006 at the lower court complied with the procedural requirements of the Fundamental right (Enforcement Procedure) Rules considering the proceedings before the trial Court it is clear that the Suit No: FHC/CA/28/2006 having been duly commenced as required by section 46 of the Constitution of the Federal Republic of Nigeria 1999 and having not suffered any jurisdictional disability was competent before the lower court and not an abuse of court process.