ALHAJI UMAR MUSA YAR’ADUA 7 ANOR V ALHAJI ATIKU ABUBAKAR & ORS
May 28, 2025FIRST BANK OF NIG. PLC & ANOR VS NDARAKE & SONS (NIG) LTD
May 28, 2025Legalpedia Citation: (2008) Legalpedia (CA) 66149
In the Court of Appeal
Wed Dec 10, 2008
Suit Number: CA/C/117/2001
CORAM
PARTIES
CHIEF SUNDAY EYO OKON OBONG APPELLANTS
1. PATRICK LEO EDET2. COMMISSIONER OF POLICE^ AKWA IBOM STATE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant filed a motion ex-parte for leave of the high court to enforce his Fundamental Human Rights which he alleged had been breached by the Respondents. The trial court granted the leave to the Appellant, the leave granted by the trial court was to operate as a stay of all other proceedings by the police. The Appellant filed a motion of notice and served same on the Respondents, proof of service was filed by the parties, and the counsel to the Respondent raised a preliminary objection that the motion was incompetent because it was filed in breach of the mandatory provisions of Order 2, Rule1 (1) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The trial court held in favour of the Respondent. Aggrieved by this, the Appellant has appealed to this court.
HELD
Appeal allowed
ISSUES
Whether by the provisions of Order 2 Rule 1(4) of the Fundamental Rights(Enforcement Procedure) Rules, 1979, the appellant is required to file and serve proof of service of the motion on notice on the respondents and whether failure to serve the already filed affidavit of service on the respondents will rob the court of jurisdiction to entertain a case under the fundamental right procedure.
RATIONES DECIDENDI
NON-COMPLIANCE WITH A CONDITION PRECEDENT-EFFECT OF
“Non-compliance with a condition precedent is not a mere technical rule of procedure but it goes to the root of the matter”. PER JEAN OMOKRI JCA
FUNDAMENTAL RIGHTS-NON-COMPLIANCE WITH FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES-EFFECT OF ON PROCEEDINGS
“The effect of non-compliance with the Fundamental Rights (Enforcement Procedure) Rules is to make the proceedings incompetent”. PER JEAN OMOKRI JCA
MUST”-WHEN USED IN A STATUTES-MEANING AND DENOTATION OF
The word “must”, in the context in which it is used there at, is a word of absolute obligation. It is not merely directory, rather, it is naturally imperative and admits of no discretion. PER JEAN OMOKRI JCA
FUNDAMENTAL RIGHTS-CONDITION PRECEDENT TO HEARING AN APPLICATION UNDER THE FUNDAMENTAL RIGHTS ENFORCEMENT RULES-EFFECT OF NON- COMPLIANCE THERETO
“Failure to comply with the conditions precedent is fatal and it robs the court of the jurisdiction to hear the application. Non-compliance with the conditions precedent is not a mere irregularity rather it goes to the competence of the trial court to entertain the action”. PER JEAN OMOKRI JCA
SHALL”-WHEN USED IN A STATUTES- MEANING OF
“The word “shall” is used to express a command or exhortation or what is legally mandatory. Its use in a statute or rules of court makes it mandatory that the rule or provision must be observed” PER JEAN OMOKRI JCA
GROUND OF APPEAL-GROUND FROM WHICH NO ISSUE IS FORMULATED-HOW TREATED
“A ground of appeal from which no issue is formulated and no argument proffered must be deemed to have been abandoned and will be struck out”. PER JEAN OMOKRI JCA
CLEAR AND UNAMBIGUOUS WORDS OF A STATUTE-HOW INTERPRETED BY COURTS
“Where the words of a statute are clear and unambiguous, the court should give them their natural and grammatical and literal meaning” PER JEAN OMOKRI JCA
JURISDICTION OF COURT-CONDITION PRCEDENT TO THE EXERCISE OF JURISDICTION
“Before a court can exercise jurisdiction in respect of any matter, it must have competence which includes the case coming to it by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. PER JEAN OMOKRI JCA
EXERCISE OF JURISDICTION-FAILURE TO FULFILL A CONDITION PRECEDENT THERETO-EFFECT OF ON PROCEEDINGS
“The law has been very robustly settled that where a condition precedent to the exercise of jurisdiction is not fulfilled, then the proceedings before the court must be regarded as a nullity” PER JEAN OMOKRI JCA
GROUNDS OF APPEAL- DUTY OF AN APPELLATE COURT TO DECIDE ISSUES RAISED IN THE GROUND OF APPEAL
“An appellate court can only hear and decide an issue raised in the grounds of appeal filed before it. An issue not covered by any ground of appeal is therefore incompetent and will be struck out” PER JEAN OMOKRI JCA
SUBSTANTIAL JUSTICE-DUTY OF COURT THERETO
“Courts should be more interested in doing substantial justice and not to follow technical rules of procedure slavishly. Courts are enjoined to do justice in cases or matters that are brought before them and they should not be deterred by issues raised on sheer technicalities, particularly where such issues relate to procedural irregularities which are curable” PER JEAN OMOKRI JCA
JUSTICE-DUTY OF COURT NOT TO ADHERE TO TECHNICALITIES AT THE EXPENSE OF JUSTICE
“The duty on court is not to adhere to technicalities at the expense of justice. Reliance on technicalities in determining sensitive matter has always been frowned upon by the courts. It only prevents the other side from being heard. In a situation where a party is in prison custody, to shut him up does much harm to the cause of justice” PER JEAN OMOKRI JCA
CASES CITED
Achakpa vs. Nduka (2001) 14 NWLR (Pt. 734) 623 Adeleke vs. Oska (2006) 16 NWLR (Pt. 1006) 608 at 710 Agu vs. NICON Plc. (2000) 11 NWLR (Pt. 677) 187A-G, Anambra State vs. A-G, Federation (1993) 6 NWLR (Pt. 302) 67Ahmadu vs. Gov. of Kogi State (2002) 3 NWLR (Pt. 205) 502 Akinagun vs. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 90Amoke Odo vs. I. G. P. (1999) 6 NWLR (Pt. 607) 467 Arowolo vs. Akapo (2003) 8 NWLR (Pt. 823) 451Aye vs. State (2006) 8 NWLR (Pt. 82) 345Azeez vs. State (1986) 2 NWLR (Pt. 23) 541 at 545Chukwugor vs. Chukwugor (2006) 7 NWLR (Pt. 979) 302 at 316 Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546Egbuna vs. Egbuna (1989) 3 NWLR (Pt. 106) 773 Ejura vs. Idris (2006) 4 NWLR (Pt. 971) 538 Eke vs. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 529;Ezeaduka vs. Maduka (1997) 8 NWLR (Pt. 518) 635 Fawehinmi vs. I-G of Police (2002) 7 NWLR (Pt. 767) 606 FRN vs. Obogolu (2006) 18 NWLR (Pt. 1010) 188 at 221Madukolu vs. Nkemdilim (1962) All NLR 587 at 590 Ngige vs. Achukwu (2005) 2 NWLR (Pt. 909)123 Odua Investment Co. Ltd. vs. Totala (1997) 52 LRCN 2109Ogwuche vs. Mba (1994) 4 NWLR (Pt. 336) 75 at 86 Okafor vs. Admin.-General, Anambra State (2006) 12 NWLR (Pt. 993) 131 at 138Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89 – 90 Onyemiz vs. Ojiakor (2000) 6 NWLR (Pt. 659) 25 at 47Oyeniran vs. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 131Palawa vs. Jatau (2003) 5 NWLR (Pt.813) 247 Saleh vs. Mungono (2003) 1 NWLR (Pt. 8007) 221 Saude vs. Abdullahi (1989) 4 NWLR (Pt. J 16) 342-at-387Sebeji vs. Abubakar (2000) 19 WRN 153?
STATUTES REFERRED TO
Fundamental Rights (Enforcement Procedure) Rules 1979?
