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CaseLaw

Emeka V. Okoroafor (2017) CLR 2(c) (SC)

Judgement delivered on February 24th 2017

Brief

  • Jurisdiction – What determines
  • Section 36(1) of the Constitution – Whether breach under arises
  • Audi alteram partem
  • Nemo judex in causa sua
  • Service of Court Process - Fundamental nature of and effect of failure to serve same where mandatory
  • Service of originating process
  • Affidavit of service
  • Evaluation of Evidence
  • Service of Process – Effect of order of substituted service and address for service
  • Section 36 of the 1999 Constitution
  • Section 36(1) of the 1999 Constitution
  • Sections 38(1) of the 1999 Constitution
  • Section 40 of the 1999 Constitutionn
  • Section 36(2) of the 1999 Constitution
  • Section 36(4) of the 1999 Constitution
  • Section 36(5) of the 1999 Constitution
  • Section 39(1) of the 1999 Constitution
  • Section 39(2) of the 1999 Constitution
  • Section 42 of the 1999 Constitution
  • Section 42(1) of the 1999 Constitution
  • Section 46(1) of the 1999 Constitution
  • Section 46(1) of the 1999 Constitution
  • Section 6 (6) of the 1999 Constitution (as amended)
  • Section 168 (1) of the Evidence Act 2011
  • Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009
  • Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009
  • Order 2 Rule 3 of the Fundamental Rights(Enforcement Procedure) Rules, 2009
  • Order V Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules
  • Order V Rule 7 of the Fundamental Rights (Enforcement Procedure) Rules
  • Order V Rule 7(a) of the Fundamental Rights (Enforcement Procedure) Rules
  • Order V Rule 7(b) of the Fundamental Rights (Enforcement Procedure) Rules

Facts

The appellant herein, by a motion on notice filed on 15/4/2014, applied to the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, for the enforcement of his fundamental rights. The application was brought pursuant to Order 2 Rules 1, 2 and 3 of the Fundamental Rights(Enforcement Procedure) Rules, 2009; Sections 6(6), 36(1), (2) , (4) & (5), 38(1), 39(1)& (2) and 42(1) of the 1999 Constitution of the Federal Republic of Nigeria and under the African Charter on Human and Peoples Rights. The application was supported by a statement setting out the names, address and description of the applicant, the reliefs sought and the grounds for seeking the reliefs. It was also supported by an 85-paragraph affidavit of facts with several exhibits attached thereto and a written address.

The reliefs sought, as contained at pages 29-32 of the record, are as follows:

  • 1.
    A DECLARATION that the meeting held by the respondents on 6th march, 2014, purportedly as a meeting of the General Committee of the Assemblies of God, Nigeria, at the National Secretariat of Assemblies of God, to determine allegations made against the applicant was illegal and unconstitutional, the same not having been properly convened and constituted in accordance with the provisions of the Constitution and Bye-Laws of the Assemblies of God, Nigeria, 2002 and in contravention of the rights of the applicant to peaceful exercise of the duties of his office as General Superintendent of the Assemblies of God, Nigeria enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended)
  • 2.
    A DECLARATION that the proceedings and decisions of the said purported meeting of the General Committee of the Assemblies of God, Nigeria culminating in a purported dismissal and suspension of the applicant is null and void, the proceeding having been conducted and the decisions having been reached in contravention of the Rules of Natural Justice and the applicants right under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
  • 3.
    A DECLARATION that the applicants alleged dismissal from ministry and suspension as a member of the Assemblies of God, Nigeria is in contravention of the applicants right to fair hearing as secured under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
  • 4.
    A DECLARATION that the chairing of the purported General Committee meeting of 6th March, 2014 by the 4th respondent and the participation of 11 members of the Executive Committee of the Assemblies of God, Nigeria and 9th to 19th respondents, who are members of the body of Ambassadors of the kingdom, who had made the allegations against the applicant amounts to being a judge in their own cause and was in contravention of the applicants right to fair hearing secured under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • 5.
    A DECLARATION that the letter dated 6th March, 2014 signed by the 1st, 2nd and 3rd respondents prohibiting the free association by the applicant with All Units, All Ministers, All Presbyters, All General Council Directors/Coordinators and All members in general of the Assemblies of God, Nigeria is in breach of the applicants fundamental rights enshrined and secured under Section 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • 6.
    A DECLARATION that the purported suspension of the applicant as a member of the Assemblies of God, Nigeria with the threatened implication of ex communicating him from the Church is a contravention of the applicants right to freedom of religion and worship in community with others and right to freedom of association secured under Section 38(1) and 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • 7.
    A DECLARATION that the purported dismissal and suspension of the applicant allegedly for the reason, inter alia, that the applicant sued the respondents to Court is in contravention of the applicants right of access to Court and fair hearing as enshrined in Section 6(6) and 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • 8.
    A DECLARATION that the decision to dismiss and suspend the applicant was ultra vires the body which met on 6th March, 2014 purportedly as the General Committee of the Assemblies of God, Nigeria, the same not being constituted of legitimate members of the General Committee and thus contravenes the applicants rights under Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • 9.
    A DECLARATION that the Body of Ambassadors of the kingdom and the Consultative Assembly are not persons authorized or organs cognizable under the extant 2002 Constitution and Bye-laws of the Assemblies of God, Nigeria and have no functions thereunder, no powers to try, investigate or discipline the applicant for any alleged misconduct and especially for any alleged criminal offences and their conducts therefore contravenes the applicants rights enshrined under Section 36(4) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
  • 10.
    AN ORDER OF INJUNCTION restraining the 5th, 6th and 7th respondents and other members of the 9-man Panel of Investigation set up to investigate allegations against the applicant, their privies, agents, cohorts, servants and any other person(s) whomsoever from taking any steps, actions or doing anything whatsoever purportedly for the purposes of trying, questioning or investigating the applicant for any matters relating to allegations made against him by the respondents or by any other person(s) whomsoever or in respect of any other matters whatsoever relating to his actions or omissions as a member, Minister and or General Superintendent of the Assemblies of God, Nigeria.
  • 11.
    AN ORDER OF INJUNCTION restraining the 2nd, 3rd and 8th respondents and other members of the eleven-man Constitution Review Committee purportedly set up at a supposed Emergency meeting of the Executive Committee of the General Council of the Assemblies of God, Nigeria on 18/3/2014 from doing any act or taking any steps whatsoever for the purposes of revising, altering, re drafting, amending, repealing, reviewing or in any manner whatsoever dealing with the extant 2002 Constitution and Bye-laws of Assemblies of God Nigeria, or bringing into existence or operation any other Rules or Regulations for purposes of managing, organizing, administering and running of the affairs of the Assemblies of God, Nigeria.
  • 12.
    AN ORDER declaring null and void any document in nature of a Constitution, Bye-laws, Rules, Regulations or any directives howsoever called or described intended to have any effect in the organization, administration, management and running of the affairs of the Assemblies of God, Nigeria other than the 2002 Constitution and Bye-laws of Assemblies of God, Nigeria.
  • 13.
    AN ORDER OF INJUNCTION restraining the 1st respondent by himself, or through his servants, agents, privies, cohorts or any person(s) whomsoever, from parading himself or being paraded as the Acting General Superintendent of the Assemblies of God, Nigeria.
  • 14.
    AN ORDER OF INJUNCTION restraining the respondents, their servants, agents, privies, cohorts by themselves or through any person(s) whomsoever, from interfering with or obstructing the applicant in the peaceful performance of his duties, functions and obligations of his office as General Superintendent of the Assemblies of God, Nigeria and the enjoyment of all the rights, privileges, benefits, remuneration and perquisites of the said office, or from exercising his rights as a Minister and member of the Assemblies of God, Nigeria.
  • 15.
    AN ORDER for N500,000,000.00 general damages to the applicant against the respondents jointly and severally for various breaches and threats of breaches of the applicants fundamental rights.

The appellant filed an ex-parte application along with the motion on notice, seeking various reliefs, including the following:

  • 1.
    An order of interim injunction restraining the respondents, their servants, agents, privies, co-operators, collaborators, assigns, representatives, allies, surrogates and other person or persons whomsoever and howsoever described from taking any further steps in connection with or relation to all matters arising from or in any way connected to the subject of the substantive application pending the hearing and determination of the said application on notice.
  • 5.
    An order granting the applicant leave to serve the substantive application for the enforcement of his fundamental right and all other processes relating to the said application, on all the respondents by substituted means, to wit: by delivering same to the 1st respondent whose address for service is Evangel House, Plot R8 Ozobulu Street Independence Layout Enugu.

The above stated reliefs, among others, were granted on 16th April, 2014 and the substantive application was adjourned to the following day, 17th April, 2014 for hearing.

On 25/4/2014, the respondents filed an application seeking the following orders:

  • a.
    Setting aside the service of the originating process and order in this suit effected by the bailiff of this Honourable Court at No. 5 Mbanano Street, Independence Layout, Enugu, Enugu State contrary to the definite address at Evangel House, plot R8 Ozubulu Street, Independence Layout, Enugu, Enugu State whereat the Honourable Court ordered that services be effected;
  • b.
    Setting aside the injunctive and restraining orders made ex-parte against the respondents on record in this suit; and
  • c.
    Striking out this suit for want of competence.

    • The application was supported by a 12 paragraph affidavit deposed to by the 1st respondent with two exhibits annexed thereto being the statement of claim in respect of Suit No. E/82/2014, a sister suit pending between the parties in the same Court and a copy of the proceedings of 13/3/2014 in the said suit.

    The application in essence challenged the service of the Court processes on the respondents. The 1st respondent in addition deposed to a counter affidavit in reaction to the affidavit of service deposed to by the bailiff of the Court. The bailiff also filed an affidavit in reaction to the 1st respondents counter affidavit.

    The parties duly filed and exchanged written addresses in respect of the application. The substantive application was heard an 23/10/2014. After considering the various processes before it and the submissions of learned counsel, the learned trial Judge in a considered ruling delivered on 11/12/2014 refused the application to set aside the service of the originating processes.

    He also overruled the objection challenging the competence of the suit and granted the appellant’s reliefs. N30 Million costs were awarded against the respondents and in favour of the appellant.

    The respondents were dissatisfied with the ruling and appealed against it to the Court of Appeal, Enugu Division (henceforth referred to as the lower Court) vide a notice of appeal filed or 22/12/2014. On 14/4/2015, the lower Court allowed the appeal and set aside the judgment of the trial Court for being a nullity. The Court granted the application filed an 25/4/2014 and set aside the service of the ex-parte order and the substantive motion on notice on the respondents on the ground that service of the Originating processes on the respondents was not proved.

    The Court further set aside the ex-parte orders made on 16/4/2014 and held that the appellants suit No. E/220m/2014 is incompetent and that the trial Court lacks jurisdiction to entertain it, as the Fundamental Rights enforcement procedure was not the proper procedure to have been employed by the appellant in seeking redress for his claims. Not being the final Court, after making these findings, the lower Court also considered the merit of the appeal. Ultimately the appeal was allowed and the suit before the trial Court was struck out. The appellant herein is aggrieved by this decision and has further appealed to this Court.

Issues

  • 1.
    Whether the Court of Appeal was right when it set aside the service of the...
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