From the Court

LANDMARK JUDGEMENT

 

IN THE SUPREME COURT OF NIGERIA
Suit No: SC263/2005

Petitioner: FIDELITY BANK PLC
And
Respondent: CHIEF ANDREW MONYE
Date Delivered: 2012-03-23
Judge(s):
WALTER SAMUEL NKANU ONNOGHEN, IBRAHIM
TANKO MUHAMMAD, OLUFUNLOLA OYELOLA
ADEKEYE, BODE RHODES-VIVOUR, MARY UKAEGO
PERTER-ODILI
In the Federal High Court, (trial court) Holden at Lagos, in the Lagos judicial Division, the 1st respondent, herein, as applicant, filed an Ex-parte motion, pursuant to Order 1 Rules 2(2) and 2(3) and Order 4 of the Fundamental Rights (Enforcement Procedure) Rules 1979 asking for the following reliefs:
i. An order granting leave to Chief Andrew Monye, the applicant to enforce his fundamental rights
ii. An order restraining the Presidential Task Force on Trade Malpractices and FSB International Bank Plc, from arresting, detaining, threatening with arrest, harassment and or arrest, and detention of the applicant pending the determination of the application to be filed pursuant to leave of the court.
The 1st respondent in compliance with the requirements of the Fundamental Rights (Enforcement Procedure) Rules 1979 also filed a statement wherein he sought for the following reliefs:
I. ‘Declaration that the arrest and false imprisonment of Chief Andrew Monye on 8th March, 1996 by the Presidential Task Force on Trade Malpractices at the instance of FSB International Bank Plc is illegal and unconstitutional and a breach of the applicant’s liberty.
II. An order of injunction, restraining the Presidential Task Force on Trade Malpractices from arresting or detaining Chief Andrew Monye on the complaint of FSB International Bank Plc on a case of debt recovery.
III. N5 Million damages against FSB International Bank Plc for unlawful arrest and false imprisonment of Chief Andrew Monye on 8th March, 1996.’
Motion Ex-parte was moved on the 2/4/96. The Learned trial Judge, Nwaogwugwu J. granted the reliefs sought and granted the 1st respondent leave to enforce his fundamental rights. A further order was granted that the Motion on Notice was adjourned to the 17th of April, 1996.
On the 27th of May, 1996, pursuant to 1st respondent\’s application, the Attorney-General of the Federation was joined as 3rd respondent by order of the trial court.
On the 20th of May, 1997 the motion on notice was heard and a ruling delivered. In the said ruling the learned trial judge,
Gumel. J. decided that the whole proceedings was a nullity based on the fact that after having granted leave to the 1st respondent to enforce his fundamental rights, the motion on notice was adjourned to 17th day of April, 1996, that is to say, a day more than the 14 day period provided for in the Rules. Gumel J. held that it was unnecessary to consider the 1strespondent’s complaint in the motion on notice i.e. whether the 1st respondent’s right under section 32 of the Constitution had been infringed upon by the appellant, 2nd and 3rd respondents. His Lordship accordingly struck out the suit in its entirety.
Dissatisfied, the 1st respondent lodged an appeal to the Court of Appeal (court below) Lagos Division. The court below, after having considered the whole appeal, allowed the appeal and directed, as a result, that the 1st respondent’s motion on notice be heard by another judge of the Federal High Court.
The appellant herein, dissatisfied with the court below decision filed his Notice of Appeal to this court.
Briefs of argument were filed and exchanged. Each of the parties adopted its/his respective brief on the hearing date.
Learned counsel for the appellant distilled the following issue for determination, viz:
‘Whether the Court of Appeal is right in holding that the provisions of Order 2 Rule 2 of the Fundamental Rights  (Enforcement Procedure) Rules 1979 cannot be interpreted as mandatory in this case as such interpretation will lead to injustice.’
Learned counsel for the 1st respondent formulated one issue which reads as follows ‘Whether the Court of Appeal is right in holding that the provisions of Order 2 Rule 2 of the Fundamental Right (Enforcement Procedure) Rules 1979 (which requires the return date for Motion on Notice to be fixed within fourteen days after leave has been granted) cannot be so interpreted in mandatory terms in this case as such interpretation will lead to injustice.’
Learned counsel for the 2nd and 3rd respondents formulated one issue, thus:
‘In the peculiar circumstance of this case, whether the court of appeal was not right in holding that the provision of Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 cannot be interpreted in mandatory terms which will lead to injustice. (Grounds 1 & 2)’.
In his submission in the brief filed, the learned counsel for the appellant argued that in an action for the enforcement of fundamental rights brought pursuant to the Fundamental Right (Enforcement Procedure) Rules 1979 the return date for the hearing of the Motion on Notice is crucial. It must be within 14 days from the date the leave to enforce the fundamental right was granted. This is provided by Order 2 Rule (2) of the Rules. Anything more than the statutory stipulation of 14 days invalidates the whole proceedings. Learned counsel reproduced the provision of Order 2 Rule (2) of the Fundamental Right (Enforcement Procedure) Rules 1979 Learned counsel argued further that the motion ex-parte in the instant case was argued before he trial court on the 2nd of April, 1996 and leave was granted to the 1strespondent on that day to enforce his fundamental right. The return date for the motion on notice to be heard was fixed for the 17th of April, 1996, a period of more than the 14 days of the Fundamental Right (Enforcement Procedure) Rules 1979. He submitted that it was out of time and the proceedings were held to be a nullity on the authority of Ogwuche v Mba (1994) 4 NWLR (Part 336) 75. Learned counsel submitted further that the word ‘must’ used in Order 2 Rule 2 is to the effect that the motion or summons must be entered for hearing within 14 days after leave has been granted, is mandatory and effect must be given to it. It is not merely directory. It admits of no discretion. He cited Odger\’s Construction of Deeds and Statutes, 5thEdition Page 377; Black’s Law Dictionary 6thEdition; Okorie v Udom (1960) SCNLR 326; Atuyeye v Ashamu (1987) 1 NWLR (Part 49) 267 at 279; Anibi v Shotimehin (1993) 3 NWLR (Part 282) 461 at 473 – Further submissions for the appellant are that: the provisions of Order 2 Rule 2 of Fundamental Right (Enforcement Procedure) Rules 1979 are unambiguous, clear and plain, requiring no any (other) rule of construction, relying on the case of Kanada v Governor of Kaduna State (1986) 4 NWLR (Part 35) 365; that the period or number of days in excess of the 14 days as required by Order 2 Rule 2 of the Fundamental Right (Enforcement Procedure) Rules 1979, is immaterial and once there is a failure to comply with the requirement of that statute, it is a fundamental vice and not a mere irregularity. The case of Kolawole v Alberto (1989) NWLR (Part 98) 382; Ibrahim v INEC (1999) 8 NWLR (Par .614) 334; were cited. Finally, this court is urged to allow the appeal.
On his part, learned counsel for the 1strespondent after having quoted the provision of Order 2 of Fundamental Right (Enforcement Procedure) Rules 1979 submitted (summarized): that the operative word in Order 2 Rule 2 of Fundamental Right (Enforcement Procedure) Rules 1979 are ‘Must Be Entered’. Learned counsel quoted further, the relevant parts of the decisions on the subject matter as held by the trial and the Appeal Courts. That the approach adopted by the court below conforms to all known rules of interpretation of statutes and rules of court.
That the Fundamental Right (Enforcement Procedure) Rules 1979 is a special rule made to guide the courts in the expeditious disposal of matters touching on fundamental rights. To stick to the interpretation of the word ‘must’ as mandatory as submitted by the learned counsel for the appellant is an invitation to this court to toe a line that would defeat and stultify the delivery of justice which would occasion grave injustice to the 1strespondent.
The main submissions of learned counsel for the 2nd and 3rdrespondents, after having set out the provisions of Order 2 Rules (2) of Fundamental Right (Enforcement Procedure) Rules 1979 are that in construing the rule, it is imperative to consider the purpose of the provision and the mischief it seeks to prevent. He cited the case of Agbetoba v Lagos State Exco (1991) 6 SCNJ at page 22; Mobil v F. B. I. R. (1977) 3 SC 53. Learned counsel argued that in this case, the mischief sought to be cured is the delay normally caused by the common law rules as to ensure that all proceedings touching on the enforcement of fundamental rights are expeditiously heard and disposed of. By this line of thought, he argued, the word ‘must’ ought to have been given an interpretation of mandatoriness, hence, the trial court ought to have entered the case for hearing within (14) days after the grant of the leave for the 1st respondent to enforce his fundamental right. The adjournment for hearing the Motion on Notice by the trial court on 2/4/96 has satisfied the provisions of Order 2 Rule (2) of Fundamental Right (Enforcement Procedure) Rules 1979and that would mean that the trial court was prevented from granting the leave and put away the file without fixing the application for hearing. The lower court, he argued further, was right in its decision to have set aside the judgment of the trial court. Learned counsel submitted further that although allowing the appellant’s appeal would be in the best interest of the 2nd and 3rd respondents but, that would not be in the interest of justice to the society and it will not be justice in accordance with law.

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