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
Judgment Delivered
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
