Solomon Ohakosim V. Commissioner of Police Imo State & Ors (2009)

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KUDIRAT MOTONMORIOLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the ruling of the High Court of Imo State, Orlu Judicial Division delivered on 11/7/2006 striking out the appellant’s motion ex-parte filed on 5/7/2006 for an order for leave to enforce his fundamental rights.

The facts that gave rise to this appeal, as can be gathered from the record of proceedings and the submissions in the briefs of argument, are as follows: On 14th June, 2006 the appellant herein, an evangelist, was conducting a religious crusade in Okwelle, Onuimo Local Government Area of Imo State when he was arrested by officers of the SARS unit of the Nigeria Police, Imo State Headquarters, Owerri. According to the appellant the said Policemen disrupted the crusade, dismantled and removed chairs and canopies, removed cash offerings amounting to N38, 000.00 and some musical instruments, and dispersed the congregation. He alleged that his arrest was as a result of a petition written against him by the 3rd respondent to the Inspector General of Police alleging that he and some other persons assaulted the 3rd respondent’s brother and beat him to a state of coma. The appellant remained in police custody without bail until 21st June, 2006 when he and three other persons were arraigned before the Magistrates’ Court, Dikenafai. The charge was however struck out for lack of jurisdiction. The appellant was immediately rearrested by policemen from SARS and remanded in police custody. Consequently he filed a motion ex-parte in Suit No. HOR/73/2006, pursuant to the Fundamental Rights, (Enforcement Procedure) Rules for an order granting him leave to apply to enforce his fundamental rights.

On 11/7/2006, after hearing learned counsel for the appellant, the learned trial Judge ruled, at page 28 of the record, thus:-

“The application is refused. There is a criminal charge against the applicant in Suit No. HOR/15C/2006. I take judicial notice of this case. The said Suit No. HOR/15C/2006 has not been determined and as such the court cannot grant the leave sought for in this application. Leave is therefore refused. The motion ex-parte for leave to enforce the fundamental rights of the applicant is struck out. ”

Being dissatisfied with the ruling the appellant filed a notice of appeal on 1/8/2006 containing three grounds of appeal.

Briefs of argument were filed and exchanged between the appellant and the 3rd respondent herein. The 1st and 2nd respondents although duly served with the processes in the appeal, including hearing notices, did not attend court nor file any response thereto. The appellant’s brief dated 11/9/06 was filed on 20/9/06. The 3rd respondent’s brief was deemed properly filed and served by an order of this court on 28/2/07.

At the hearing of this appeal on 9/2/09, C.B. Nworka Esq., learned counsel for the appellant adopted the appellant’s brief. He urged us to strike out the preliminary objection raised in the 3rd respondent’s brief on the ground that Order 10 Rule 1 of the Rules of this Court were not complied with, as the 3rd respondent did not file a formal notice of preliminary objection. He also observed that the statement of facts contained in the said brief is not borne out by the record of appeal. He urged us to allow the appeal. A.N. Anyile, Esq., learned counsel for the 3rd respondent adopted the 3rd respondent’s brief and urged us to dismiss the appeal.

From the three grounds of appeal, the appellant distilled the following two issues for determination:

1. Whether the decision of the learned trial Judge is not unconstitutional and unlawful. (Grounds 2 and 3)
2. Whether the learned trial Judge exercised his discretion judiciously. (Ground 1).

The 3rd respondent also formulated two issues for determination thus:

1. Whether the learned trial Judge was right in refusing the appellant the leave sought (Grounds 2 and 3)
2. Whether the learned trial Judge exercised his discretion judiciously. (Ground 1).

Having regard to the similarity between the issues formulated by both parties, I shall adopt the appellant’s issues in determining this appeal. I am of the view that the appeal can conveniently be disposed of by a consideration of the first issue alone. The submissions of learned counsel on both issues shall be considered under the appellant’s issue 1. Before going into the merits of the appeal it is necessary to consider the preliminary objection raised at page 2 paragraph 3.01 of the 3rd respondent’s brief. The objection reads:

“The Respondent” shall during the hearing of the appeal contend that this appeal is incompetent and constitutes an abuse of court process in that the appellant being an accused person was charged to court in charge no. HOR/15C/2006 for attempted murder. His application for bail was refused and he appealed to this court in suit no. CA/PH/275/2006 not yet determined. The appellant within the same period filed this suit praying for the leave of the court below and for the said leave to operate as a stay of further detention. In Anyaduba v. NRT Co. Ltd. (1990) 1 NWLR (127) 395 it was held that it is an abuse of process where two similar processes were used in respect of the exercise of the same right namely a cross appeal and respondent’s notice. See also Saraki v. Kotoye (1992) 9 NWLR (264) at page 188 and 189.

May I urge the court to dismiss/strike out this suit?”

By Order 3 Rule 15 (1) of the Court of Appeal Rules 2002, the applicable rules at the time the 3rd respondent’s brief was filed (now Order 10 Rule 1 of the Court of Appeal Rules 2007), a respondent intending to rely upon a preliminary objection to the hearing of an appeal, is required to give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection. Where a respondent fails to file his notice of preliminary objection as required by the aforesaid provision, but gives notice thereof in his brief of argument and incorporates arguments on the objection therein, the courts, in the interest of fair hearing and doing substantial justice, would not discountenance the objection provided that at the hearing of the appeal, the respondent orally seeks leave to move the preliminary objection before the adoption of the briefs of argument See: Tiza v. Begha (2005) 15 NWLR (1949) 616; Umar v. W.G.G. (Nig.) Ltd. (2007) 7 NWLR (1032)117 @ 134 H & 135 A – H.