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CaseLaw

Fidelty Bank V. Monye (2012) CLR 3(g) (SC)

Judgement delivered on March, 23rd 2012

Brief

  • Rules of court
  • Mistake of counsel
  • Literal Rule of Interpretation

Facts

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 Right Enforcement Rules, 1979 (FRER, 79) 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 FRER 79, 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, 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."

The Motion-Exparte 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 1st respondent'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's decision filed his Notice of Appeal to this court.

Issues

"Whether the Court of Appeal is right in holding that the provisions of Order 2...

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