Chukwuogor v. Chukwuogor (2021)

[2021]15NWLR357

Chukwuogorv.Chukwuogor

1.CHUBA CHUKWUOGOR

2.ENGR. NNAEMEKA CHUKWUOGOR

3.EPHRAIM NWOSU

4.BITTY ARTHUR

V.

1.CHUKWUMA CHUKWUOGOR

2.THE COMMISSIONER OF POLICE

CROSS RIVER STATE COMMAND

SUPREME COURT OF NIGERIA

SC.128/2006

MARY UKAEGO PETER-ODILI, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JOHN INYANG OKORO, J.S.C. (Read the Leading Judgment)

AMINA ADAMU AUGIE, J.S.C.

FRIDAY, 8TH MAY 2020

COURT – Rules of court – Need to obey.

FUNDAMENTAL RIGHTS – Enforcement of fundamental rights -Application for – Affidavit of service – Who must file.

FUNDAMENTAL RIGHTS – Enforcement of fundamental rights -Application for – Affidavit of service – Need to file – Order2 rule 1(4), Fundamental Rights (Enforcement Procedure)Rules, 1979.

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FUNDAMENTAL RIGHTS – Enforcement of fundamental rights -Application for – Hearing of application – Conditions therefor- Order 2 rule 1(4), Fundamental Rights (EnforcementProcedure) Rules, 1979.

FUNDAMENTAL RIGHTS – Enforcement of fundamental rights- Application for – Order 2 rule 1(4), Fundamental Rights(Enforcement Procedure) Rules, 1979 – Failure to complytherewith – Effect of.

INTERPRETATION OF STATUTES – “Shall” – Where used instatute – How construed.

INTERPRETATION OF STATUTES – Construction of statute -Principles guiding.

PRACTICE AND PROCEDURE – Rules of court – Need to obey.

PRINCIPLES OF INTERPRETATION – Construction of statute -Principles guiding.

STATUTE – Construction of statute – Principles guiding.

STATUTE – “Shall” – Where used in statute – How construed.

WORDS AND PHRASES – “Shall” – Where used in statute – Howconstrued.

Issue:

Whether the Court of Appeal was right in affirmingthe ruling of the trial court striking out the appellants’application for enforcement of fundamental rightsfor failure to comply with Order 2 rule 1(4) of theFundamental Rights (Enforcement Procedure) Rules,1979.

Facts:

The appellants filed an ex-parte application at the High Courtof Cross River State for leave to enforce their fundamental rights.

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Leave was granted and the matter was adjourned for hearing of themotion on notice. The appellants filed the motion on notice with theaccompanying statement and verifying affidavit.

Upon being served with the motion on notice, the 1st respondentfiled a notice of preliminary objection challenging the hearing ofthe appellants’ application for enforcement of their fundamentalrights.

After hearing arguments on the preliminary objection, the trialcourt in its ruling upheld the 1st respondent’s objection and struckout the appellants’ application on the ground that they did not filean affidavit of service.

Dissatisfied with the ruling of the trial court, the appellantsappealed to the Court of Appeal. The Court of Appeal in itsjudgment dismissed the appeal.

Still dissatisfied, the appellants appealed to the SupremeCourt.

In determining the appeal, the Supreme Court consideredthe provisions of Order 2 rule 1(4) of the Fundamental Rights(Enforcement Procedure) Rules 1979, which states thus:

“1(4) An affidavit giving names and addresses of, and theplace and date of service on all persons who havebeen served with the motion or summons must be filedbefore the motion or summons is listed for hearing,and, if any person who ought to have been servedunder paragraph of this rule has not been served,the affidavit must state the fact and the reason whyservice has not been effected, and the said affidavitshall be before the court or judge on the hearing of themotion or summons.”

Held (Unanimously dismissing the appeal):

1.On Need to file affidavit of service in application forenforcement of fundamental rights –

By virtue of Order 2 rule 1(4) of the FundamentalRights (Enforcement Procedure) Rules 1979, anaffidavit giving names and addresses of, and theplace and date of service on all persons who havebeen served with the motion or summons must be

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filed before the motion or summons is listed forhearing. If any person who ought to have beenserved under Order 2 rule 1(3) has not been served,the affidavit must state the fact and the reason whyservice has not been effected and the affidavit shallbe before the court or judge on the hearing of themotion or summons. The provisions of Order 2rule 1(4) of the Fundamental Rights (EnforcementProcedure) Rules 1979 are clear and unambiguousin its meaning and do not require any stringentor particular rule of interpretation. They are tobe given their natural and ordinary meaning. Thewords “shall” and “must” are peremptory. There isno latitude given to the applicant in the matter. (Pp.372, paras. B-E; 379, paras. F-H; 385, paras. E-H)

  1. On Principles guiding construction of statute –

It is the cardinal principle of interpretation ofstatute to give the words used their grammaticaland ordinary meaning where such words areclear and unambiguous. The first and constantduty of the court in interpreting a statute is tohave regard to the words of the statute. When thestatute contains expressions which have alreadyreceived judicial interpretation or been used in anauthoritative statement of the rules of common law,the court may legitimately take into considerationthe interpretation they have received or the sensein which they have been used. [Oji v. Queen (1961)1 SCNLR 350; N.U.R.T.W. v. R.T.E.A.N. (2012) 10NWLR (Pt. 1307) 170; Elabanjo v. Dawodu (2006)15 NWLR (Pt. 1001) 76; Schroder & Co. v. MajorCompany Nig. Ltd. (1989) 2 NWLR (Pt. 101) 1referred to.] (P. 372, paras. E-H)

3.On Construction of “shall” where used in statute –

The word “shall” when used in a statutoryprovision imports that the thing must be donewithout any discretion. It is a word of command

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or mandatoriness. It is a word of compulsion anddenotes obligation. It is not permissive. [Nwankwo v.Yar’adua (2010) 12 NWLR (Pt. 1209) 518; Umeanaduv. A.-G., Anambra State (2008) 9 NWLR (Pt. 1091)175; Tabik Investment Ltd. v. GTB Plc. (2011) 17NWLR (Pt. 1276) 240 referred to.] (P. 373, paras.A-B)

4.On Conditions for hearing of application forenforcement of fundamental rights –

By Order 2 rule 1(4) of the Fundamental Rights(Enforcement Procedure) Rules 1979, it ismandatory that the following must happen beforethe jurisdiction of the court can be activated. Thatis to say:

an affidavit of service must be filed before(a)the motion on notice is listed for hearing;

If any person who ought to have been servedunder Order 2 rule 1(3) of the Rules has notbeen served, the affidavit must state the factand the reason why service has not been(b)effected;

such affidavit shall be before the Judge on(c)the date of hearing of the motion.

These are fundamental preconditions to the hearingof an application under the rules. The conditionsgo to the competence of the motion on notice, allaimed towards achieving compliance with dueprocess. Therefore, the failure of compliancewith the conditions could completely erode thejurisdiction of a court handling the matter. Theconditions are not merely procedural. The clausesthat the affidavit “shall be filed before the motion isentered for hearing” and “shall be before the courtor judge on the hearing of the motion or summons”connote mandatoriness. That is to say, the affidavitmust be filed before the motion or summons isentered for hearing and shall be before the Judgeat the hearing of the motion. In the instant case,

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the appellants failed to file the affidavit before themotion was fixed for hearing and there was no suchaffidavit before the trial court on the date of thehearing. They failed to comply with the mandatoryprovisions of Order 2 rule 1(4) of the FundamentalRights (Enforcement Procedure) Rules 1979 whenthey failed to file an affidavit of service before thedate the matter was fixed for hearing and for failureto place the affidavit before the Judge hearing theapplication. [Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Onyemaizu v. Ojiako (2010) 4 NWLR (Pt.1185) 504 referred to.] (P. 373, paras. C-H)

5.On Effect of failure to comply with Order 2 rule 1(4) ofFundamental Rights (Enforcement Procedure) Rules,1979 –

A failure to comply strictly with the provisionsof Order 2 rule 1(4) of the Fundamental Rights(Enforcement Procedure) Rules 1979 goes to thecompetency of the motion on notice. It rendersthe motion incompetent and so deprives the courtof the necessary vires to entertain the matter.In the instant case, since the appellants did notcomply strictly with the requirements, their motionon notice was incompetent as it did not complywith due process of law. [State v. Commissioner ofPolice, In Re Appolos Udo (1987) 4 NWLR (Pt. 63)120; Madukolu v. Nkemdilim (1962) 2 SCNLR 341;Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504referred to.] (P. 375, paras. B-D)

6.On Who must file affidavit of service in application forenforcement of fundamental rights –

The affidavit of service required to be filed by theFundamental Rights (Enforcement Procedure)Rules 1979 must be filed by the applicant and notthe bailiff. The filing of a verification affidavitis personal to the applicant and not that of thebailiff. It is the applicant who filed the motion and

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everything required of him by the rules must bedone by him, failure of which is fatal to his case.(Pp. 375, paras. D, F; 376, paras. B-D)

Per OKORO, J.S.C. at pages 375-376, paras. D-D:

“One other issue which the appellantscontended was that the affidavit of service oughtto be filed by the bailiff and not the appellants.Earlier in this judgment, I referred to the caseof Stephen Oji v. The Queen (supra) whereinthis court made it clear that where a statutecontains words and/or expressions which havealready received judicial interpretation or beenused in an authoritative statement of the rulesof common law, the court may legitimatelytake into consideration the interpretation theyhave received or the sense which they havebeen used. In Onyemaizu v. Ojiako (supra), thiscourt, adopting with approval the decision inRe: Appollos Udo (supra), held that the affidavitof service required to be filed by the rules mustbe filed by the applicant and not the bailiff.This is what this court said on pages 522 – 523paragraphs H – E in the law report alreadycited, per Chukwuma-Eneh, JSC (of blessedmemory).

‘There can be no doubt that rule 5(4) ofOrder 37 and Order 2 rule 1(4) are imparimateria. That is a common ground ofthe parties. I have also come to the sameconclusion. Having closely scrutinizedthe two provisions, they are similar in asubstantial particular and so, the citedcase is binding on the trial court. And asBracon in his book said:

“If however similar things happen totake place, they should be adjudged ina similar way, for it is good to proceedfrom precedent to precedent.”

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And I couldn’t agree more. I can sayhere without more that the constructionof Order 2 rule 1(4) as stated aboveshould be applied mutatis mutandis tothe construction of the provisions at rule5(4) Order 37.The above construction ofOrder 2 rule 1(4) cannot be faulted. Andso, with approval of the decision in Re:Appollos Udo (supra) I adopt the abovereasoning in construing the instant rules5(4) Order 37.In this regard, therefore,I hold that the filing of a verificationaffidavit is personal to the applicant/appellant in this matter and not that ofthe bailiff.”

I agree entirely with the views express in Re:Appollos Udo (supra) and the decision of thiscourt in Onyemaizu v. Ojiako (supra). Theservice of verifying affidavit is personal to theapplicants/appellants. Definitely not that ofthe bailiff. After all, the applicants are thosewho filed the motion and everything requiredof them by the rules must be done by them,failure of which is fatal to their case.”

7.On Need to obey rules of court –

Rules of court are meant to be complied with.Therefore, any party or counsel seeking thediscretionary power of a court to be exercised inhis favour must bring his case within the provisionsof the Rules on which he purported to make hisapplication. [Solanke v. Somefun (1974) 1 SC 141;Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347;Asika v. Atuanya (2013) 14 NWLR (Pt. 1375) 510;Iwunze v. F.R.N. (2014) 6 NWLR (Pt. 1404) 580referred to.] (P. 384, paras. E-H)

Nigerian Cases Referred to in the Judgment:

Agbakoba v. Director, SSS (1994) 6 NWLR (Pt. 351) 475

Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248

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Asika v. Atuanya (2013) 14 NWLR (Pt.1375) 510

Chime v. Ude (1996) 7 NWLR (Pt. 461) 379

Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1

Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76

Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544

Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347

In Re: Udo (1987) 4 NWLR (Pt. 63) 120

Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148

Iwunze v. F.R.N. (2014) 6 NWLR (Pt. 1404) 580

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

N.U.R.T.W. v. R.T.E.A.N. (2012) 10 NWLR (Pt.1307) 170

Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518

Oji v. Queen (1961) 1 SCNLR 350

Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 659) 25

Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504

Pavex Co. (Nig.) Ltd. v. I.B.W.A. Ltd. (2000) 7 NWLR (Pt.663) 105

Rector, Kano State Polytechnic v Dan’angundi (2002) FWLR(Pt. 127) 1058

Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387

Schroder v. Major Company (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1

SFLK (Nig.) Ltd. v International Bank Ltd. (2004) All FWLR(Pt. 206) 485

Solanke v. Somefun (1974) 1 SC 141

State v. COP, In Re Appolos Udo (1987) 4 NWLR (Pt. 63) 120

Tabik Investment Ltd. v. GTB Plc (2011) 17 NWLR (Pt. 1276)240

Umeanadu v. A.-G., Anambra State (2008) 9 NWLR (Pt.1091) 175

Uni. of Ilorin Teaching Hospital v. Akilo (2001) 4 NWLR (Pt.703) 246

Unity Life and Fire Insurance Co. Ltd. v. IBWA (2001) 7NWLR (Pt. 713) 610

Nigerian Statute Referred to in the Judgment:

Fundamental Rights (Enforcement Procedure) Rules, 1979,O. 2 1(3), &

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Nigerian Rules of Court Referred to in the Judgment:

High Court of Anambra State (Civil Procedure) Rules, 1988,O. 37 5(4)

High Court of Cross River State (Civil Procedure) Rules, 1987

Appeal:

This was an appeal against the decision of the Court ofAppeal dismissing the appeal against the ruling of the High Courtwhich struck out the appellants’ application for enforcement offundamental rights. The Supreme Court, in a unanimous decision,dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Mary UkaegoPeter-Odili, J.S.C. (Presided); Olukayode Ariwoola,J.S.C. Kudirat Motonmori Olatokunbo Kekere-Ekun,J.S.C.; John Inyang Okoro, J.S.C. (Read the LeadingJudgment); Amina Adamu Augie, J.S.C.

Appeal No.: SC.128/2006

Date of Judgment: Friday, 8th May 2020

Names of Counsel: Dr. Ikani Agabi, Esq. (with him,Stanley Obila, Esq. and Chidinma Nweke, Esq.) – for theAppellants

Max Ogar, Esq. (with him, Iyaji Bisong, Esq. and BeatriceNeeka, Esq.) – for the 1 st Respondent

Tanko Ashang, Esq. (Attorney General, Cross RiverState) (with him, Anthony Effiom, Esq., (Director, CivilAppeals) – for the 2 nd Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Calabar

Names of Justices that sat on the appeal: Dalhatu Adamu,J.C.A. (Presided); Istifanus Thomas, J.C.A. (Read theLeading Judgment); Jean Omokri, J.C.A.

Appeal No.: CA/C/100/2004

Date of Judgment: Thursday, 8th December 2005

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Names of Counsel: Mba E. Ukweni, Esq. – for th eAppellants

Mathew M. Ojua, Esq. – for the 1 st Respondent

A.-G., Cross River State – for the 2 nd Respondent

High Court:

Name of the High Court: High Court of Cross RiverState, Ikom

Name of the Judge: Eneji, J.

Suit No.: HM/15/2001

Date of Judgment: Wednesday, 13th August 2003

Names of Counsel: Mba E. Ukweni, Esq. – for theApplicants

Mathew M. Ojua, Esq. – for the 1 st Defendant

Counsel:

Dr. Ikani Agabi, Esq. (with him, Stanley Obila, Esq. andChidinma Nweke, Esq.) – for the Appellants

Max Ogar, Esq. (with him, Iyaji Bisong, Esq. and BeatriceNeeka, Esq.) – for the 1 st Respondent

Tanko Ashang, Esq. (Attorney General, Cross River State)(with him, Anthony Effiom, Esq., (Director, Civil Appeals) -for the 2 nd Respondent

OKORO, J.S.C. (Delivering the Leading Judgment): This isan appeal against the judgment of the Court of Appeal, CalabarDivision delivered on the 8th day of December, 2005 wherein thelower court affirmed the decision of the learned trial Judge of theHigh Court of Cross River State which struck out the application ofthe appellants to enforce their fundamental rights.

A brief facts leading to this appeal are that on or about the27th March, 2001, the appellants as applicants, filed an applicationex-parte for leave to enforce their fundamental rights. Leavewas accordingly granted by Obasse, J. on 28th March, 2001 andadjourned the matter to the 10th of April, 2001 for hearing of themotion on notice. The appellants filed the motion on notice with theaccompanying statement and verifying affidavit on 2nd April, 2001.

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Upon being served with the motion on notice, the 1st respondent fileda notice of preliminary objection dated 28th May, 2001 challengingthe hearing of the appellants’ application for enforcement of theirfundamental rights. For reasons which are not relevant to thisappeal, the arguments on the objection were not heard until 26thMarch, 2003 and concluded on 8th May, 2003 by Justice M. O.Eneji who took over from Justice J. U. Obasse.

At the conclusion of arguments on the preliminary objection,the matter was adjourned for ruling on the 24th day of June,2003. The ruling was not ready on 24th June, 2003. It was furtheradjourned to 13th August, 2003. On 13th August, 2003, the learnedtrial Judge delivered the ruling in which he upheld the objectionof the 1st respondent, and struck out the appellants’ motion for theenforcement of their fundamental rights on the ground that they didnot file affidavit of service.

Aggrieved by the ruling of the trial court, the appellantsappealed to the court below which after hearing the parties, heldthat the appeal was devoid of merit and same was dismissed. Thelower court thus affirmed the ruling of the learned trial Judge. Thejudgment of the court below was delivered on 8/12/05.

Again, the appellants are dissatisfied with the judgment of theCourt of Appeal. They filed notice of appeal on 28th December,2005. The said notice of appeal contains three grounds of appealout of which the appellants have formulated one issue for thedetermination of this appeal. Needless to say that parties filed andexchange briefs in accordance with the rules of this court.

In the amended appellants’ brief settled by Dr. Ikani KanuAgabi, of counsel, which was filed on 3rd February, 2020 butdeemed properly filed on 10th February, 2020, the same date thisappeal was taken, the sole issue donated by the appellants is foundon page 6 of the brief and states thus:-

“Whether the learned Justices of the Court of Appealwere right in their interpretation of the provisions ofOrder 2 rule 1(3) and of the Fundamental Rights(Enforcement Procedure) Rules and the distinctionmade by their Lordships as to service of court processesunder those Rules and the High Court of Cross RiverState (Civil Procedure) Rules 1987”.

The learned counsel for the 1st respondent, Max Ogar, Esq alsodistills a single issue for determination which is couched differentlyas follows:-

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“Whether the learned Justices of the Court of Appealwere right in affirming the decision of the High Courtstriking out the appellants’ application for failure tocomply with express and mandatory rules regulatingthe enforcement of fundamental rights”.

The learned Attorney General of Cross River State, TankoAshang, Esq who settled the brief of the 2nd respondent which wasfiled on 4th February, 2020 but deemed on 10th February, 2020, alsodecoded one issue in these words:-

“Whether the lower court was right to have affirmedthe decision of the trial High Court striking out thismatter for being incompetent”.

There is no doubt that the sole issue formulated differently bythe parties are the same. Accordingly, I shall therefore determinethis appeal based on that said issue.

In arguing this appeal, the learned counsel for the appellantssubmitted that the bone of contention in this appeal is very narrowand straightforward and is predicated on the interpretation andapplication of the provisions of Order 2 rule 1 and ofthe Fundamental Rights (Enforcement Procedure) Rules 1979.He contended that nowhere is it provided in the said rules thatthe applicant must personally serve the motion or summons onall the respondents or persons listed in paragraph 3 and that theapplicant must personally file an affidavit of service. According tohim, the interpretation given to those provisions by the trial courtand affirmed by the Court of Appeal in obedience to their formerdecisions in The State v. COP (In Re: Apollos Udo) (1987) 4 NWLR(Pt. 63) 120 and Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 659)25, amounts to their Lordships reading into those provisions whatthe Chief Justice of Nigeria did not intend in making the rules. Heopined that the court cannot read or import into a statute, rules orinstrument what was never there, relying on University of IlorinTeaching Hospital v. Akilo (2000) FWLR (Pt. 28) 2286 at 2294 -2295 paragraphs H – A; (2001) 4 NWLR (Pt. 703) 246 and Egbev. Yusuf (1992) 6 NWLR (Pt. 245) 1 at 2 paragraph A and page 16paragraph C.

Learned counsel further submitted that had Order 2 rule 1and of the Fundamental Rights (Enforcement Procedure)Rules been made to be mandatory and peremptory as held by the(3)two courts below, Order 2 rule thereof would not have been

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made which gives the court the discretionary power to adjourn thehearing of the application on such terms as the court may deem fitin the event that it is of the opinion that any person who ought tohave been served with the motions or summons has not been served.He contended that in the construction of any provision of a statuteor instrument, the statute or instrument is usually read as a wholeand not in bits or in isolation, referring to the case of Chime v. Ude(1996) 7 NWLR (Pt. 461) 379 at 432 paragraph H.

It was further contended that the responsibility to serve allcourt processes, particularly originating processes, is that of thebailiffs and sheriffs of the court and no other person. Thus he relieson the case of Pavex Co. (Nig.) Ltd. v. Intercontinental Bank for WestAfrican Ltd. (2000) FWLR (Pt. 26) 1891, (2000) 7 NWLR (Pt. 663)105; Rector Kano State Polytechnic v. Dan’angundi (2002) FWLR(Pt. 127) 1058 at 1067 paragraphs B – G.

The learned counsel further submitted that it is theresponsibility of the bailiff or sheriff who served the court processesto file the proof of service made by him. Relying on SFLK (Nig.)Ltd. v International Bank Ltd. (2004) All FWLR (Pt. 206) 485 at506 paragraphs B – F, learned counsel contended that no order ofthe Fundamental Right (Enforcement Procedure) Rules allows foranother mode of service other than the generally recognized andaccepted mode of service. He opined that there were two affidavits,one filed by the bailiff of the trial court on 26/6/2002 and anotherby Bassey Okim, counsel to the appellants on 9/11/01. According tohim, the trial court failed to look at them although the one filed bythe bailiff is not in the record of the appeal.

Finally, the learned counsel contended that the respondentshaving appeared in court, there was no need for an affidavit ofservice, relying on Agbakoba v. The Director, State Security Service(1994) 6 NWLR (Pt. 351) 475 at 500 paragraph G (CA). Also thatfailure to obey rules of court should not be used to deny a party ofjustice. Again, that this decision was made on technicality which thecourts have long jettisoned in order to do substantial justice, relyingon Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Learnedcounsel urged the court to overrule the cases of The State v. COP (InRe Apollos) (supra) and Onyemaizu v. Ojiako (supra) and resolvethis issue in favour of the appellants.

In response, the learned counsel for the 1st respondent submittedthat rules of court are meant to be obeyed and a party seeking a

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relief from any court must comply with the applicable rules of court,much more so in fundamental right enforcement matters which aresui generis in nature, relying on Solanke v. Sowefun (1974) 1 SC 141at 150.

Referring to Order 2 rule 1 (supra) learned counselsubmitted that it makes it mandatory that an affidavit of service mustbe filed before the motion is listed for hearing and such affidavitshall be before the Judge on the day of the hearing of the motion.He contended that the stipulations made in the rules are fundamentalpreconditions to the hearing of an application under the FundamentalRights (Enforcement Procedure) Rules. He posited that failure tocomply with the said procedure is fatal and drains the court of thejurisdiction to hear the application.

Learned counsel submitted that the affidavit of service referredto in the rules is to be filed by the applicant and not the bailiff ofthe court as argued by the appellants. According to him, it is on thatbasis that an affidavit of service was filed on 26/6/2002 which is 13months after the objection was filed; 7 months after the appellants’counsel filed an affidavit of service and 14 months after the datethe matter was listed for hearing. He submitted that the appellantsshould not be allowed to approbate and reprobate, citing the case ofAjide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269. That it is clearthat the appellants filed an affidavit of service but out of time and assuch cannot change the procedure just by their argument. He urgedthe court not to allow them to do an about turn to what they stood forat the trial court, relying on Unity Life and Fire Insurance Co. Ltd. v.IBWA (2001) 7 NWLR (Pt. 713) 610 at 626, Ipinlaiye II v. Olukotun(1996) 6 NWLR (Pt. 453) 148 amongst others.

Learned counsel urged this court to be persuaded by the decisionsof the Court of Appeal in The State v. Commissioner of Police, In ReAppollos Udo (1987) 4 NWLR (Pt. 63) 120 at 126 and the decisionof this court in Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 659) 25 inholding that failure of the appellants to place an affidavit of servicebefore the trial court on the date fixed for the hearing of the motionwas fatal to their case. That the non-compliance affected the root ofthe case and deprived the court of the jurisdiction to hear the case.He urged the court to resolve this issue against the appellants.

The learned Attorney General of Cross River State, TankoAshang Esq, who represented the 2nd respondent, also argued inline with that of the learned counsel for the 1st respondent. Learned

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counsel emphasized the decision of this court in Onyemaizu v.Ojiako (supra) and urged the court to resolve this issue against theappellants.

As was observed by the court below, the bone of contention inthis appeal is very narrow and straightforward. It is largely anchoredon the interpretation of the provisions of Order 2 rule 1(4) of theFundamental Rights (Enforcement Procedure) Rules 1979. I shall,without much ado, reproduce the said rules for ease of reference.

Order 2 rule 1(4) (supra) states thus:-

“An affidavit giving names and addresses of, and theplace and date of service on all persons who have beenserved with the motion or summons must be filedbefore the motion or summons is listed for hearing,and, if any person who ought to have been servedunder paragraph of this rule has not been served,the affidavit must state the fact and the reason whyservice has not been effected, and the said affidavitshall be before the court or judge on the hearing of themotion or summons.”

The above provision is clear and unambiguous in itsmeaning and does not require any stringent or particular rule ofinterpretation. It is the cardinal principle of interpretation of statuteto give the words used their grammatical and ordinary meaningwhere such words are clear and unambiguous. As far back as1961, this court, per Brett, JSC in Stephen Oji v. The Queen (1961)LPELR – 25123 (SC) page 6 paragraphs B – D; (1961) 1 SCNLR350 made the following as the guiding principle of interpretation ofstatute thus:-

“The first and constant duty of the court in interpretinga statute is to have regard to the words of the statute,but when the statute contains expressions which havealready received judicial interpretation, or been usedin an authoritative statement of the rules of commonlaw, the court may legitimately take into considerationthe interpretation they have received, or the sense inwhich they have been used.”

See also NURTW & Anor v. RTEAN & Ors (2012) 10 NWLR(Pt.1307) 170, Elabanjo & Anor v. Dawodu (2006) 15 NWLR (Pt.1001) 76, Schroder & Co. v. Major Company (Nig.) Ltd. (1989) 2NWLR (Pt. 101) page 1.

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Now looking at the words used in Order 2 rule 1(4) above, theword “must” is used twice and the word “shall” is used once. It iswell settled that the word “shall” when used in a statutory provisionimports that the thing must be done without any discretion. It is aword of command or mandatoriness. It is a word of compulsionand denotes obligation. It is not permissive. See Nwankwo & Orsv. Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, Umeanaduv. Attorney General Anambra State & anor (2008) 9 NWLR (Pt.1091) 175, Tabik Investment Ltd & Anor v. GTB Plc (2011) 17NWLR (Pt. 1276) 240.

It is clear that by Order 2 rule 1 of the Fundamental Rights(Enforcement Procedure) Rules 1979, it is mandatory that thefollowing must happen before the jurisdiction of the court can beactivated. That is to say:-

1.An affidavit of service must be filed before the motionon notice is listed for hearing.

2.If any person who ought to have been served underparagraph of the Rules has not been served, theaffidavit must state the fact and the reason why servicehas not been effected.

3.Such affidavit shall be before the Judge on the date ofhearing of the motion.

The above are indeed fundamental preconditions to the hearingof an application under the aforesaid rules. The above conditionsgo to the competence of the motion on notice, all aimed towardsachieving compliance with due process. It follows that the failureof compliance with those conditions could completely erode thejurisdiction of a court handling the matter. And I need to emphasizethat these conditions are not mere procedural irregularities as theappellants’ counsel would want this court to decide. See Saudev. Abdullahi (1989) 4 NWLR (Pt. 116) 387, Onyemaizu v. Ojiako(2010) 4 NWLR (Pt. 1185) 504 at 520 paragraphs A-F.

The clauses that the affidavit “shall be filed before the motionis entered for hearing” and “shall be before the court or judge onthe hearing of the motion or summons” leave no one in doubt thatthey connote mandatoriness. That is to say, the affidavit must befiled before the motion or summons is entered for hearing and shallbe before the Judge at the hearing of the motion.

In the instant case, the appellants failed to file the affidavitbefore the motion was fixed for hearing and there was no suchaffidavit before the Judge on the date of hearing.

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The court below made the following findings which aregermane to this issue on pages 95 – 96 of the record:-

“The appellants argued that their counsel, BasseyOkim Esq, filed an affidavit of service on 9/11/01 inthe application in compliance with the provisions ofOrder 2 rule 1(4) of the said Rules. It is clear frompages 7 and 8 of the record of proceedings that theOrder of the court granting leave to the appellants toenforce their fundamental rights slated the motion onnotice for hearing on 10/4/01. The affidavit of servicefiled by Bassey Okim Esq on 9/11/01 for the appellantswas filed 7 months after the matter was filed hopelesslyout of time prescribed under Order 2 rule 1(4) of theRules.”

The lower court went on to say.-

“Secondly, the other affidavit allegedly filed by thebailiff of the court below on 26/6/02 is not part of therecord of proceedings in this appeal. The appellantshave not challenged the records and neither have theybrought an application for additional records to makethe said affidavit part of the record of appeal. In thecircumstances the appellants should hold their peaceand abide with the record of proceedings as producedand presented before the court. The court and all theparties in this appeal are bound by the record. Thatnotwithstanding, the phantom affidavit of serviceallegedly filed on 26/6/02 was filed 14 months after thedate the application before the court below was listedfor hearing on 10/4/01. Whichever way one looks atit, the appellants’ purported affidavit of service washopelessly out of time. The conclusion I reach is thatthe appellants did not comply with the mandatoryprovisions of Order 2 rule 1(4) of the FundamentalRights (Enforcement Procedure) Rules. Rules of courtare made to be followed.”

From the findings of the court below, the appellants did notfile any affidavit of service as at 10/4/01 when this motion wasfixed for hearing and there was no affidavit before the Judgeagainst the stipulation in the Rules. In the circumstance, since

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the appellants did not comply strictly with the requirements, theirmotion on notice was incompetent as it did not comply with dueprocess of law. See State v. Commissioner of Police, In Re AppolosUdo (1987) 4 NWLR (Pt. 63) 120, Madukolu v. Nkemdilim (1962)2 SCNLR 341, Onyemaizu v. Ojiako (supra).

In construing Order 37 rule 5 of the High Court of AnambraState (Civil Procedure) Rules 1988, which is im pari materiawith Order 2 rule 1 of the Fundamental Rights (EnforcementProcedure) Rules 1979, this court, in Onyemaizu v. Ojiako (supra)made it very clear that failure to comply strictly with the provisionsof the aforementioned rule of court goes to the competency of themotion. That it renders the motion incompetent and so deprives thecourt of the necessary vires to entertain the matter. This is a decisionof this court and I have no reason whatsoever to depart from it aslearned counsel for the appellants urged this court to do. This wasthe position of the Court of Appeal in State v. Commissioner ofPolice In Re: Appollos Udo (supra) which this court adopted withapproval in Onyemaizu v. Ojiako (supra).

One other issue which the appellants contended was thatthe affidavit of service ought to be filed by the bailiff and not theappellants. Earlier in this judgment, I referred to the case of StephenOji v. The Queen (supra) wherein this court made it clear that wherea statute contains words and/or expressions which have alreadyreceived judicial interpretation or been used in an authoritativestatement of the rules of common law, the court may legitimatelytake into consideration, the interpretation they have received or thesense which they have been used. In Onyemaizu v. Ojiako (supra),this court, adopting with approval the decision In Re: Appollos Udo(supra), held that the affidavit of service required to be filed by therules must be filed by the applicant and not the bailiff. This is whatthis court said on pages 522 – 523 paragraphs H – E in the law reportalready cited, per Chukwuma-Eneh, JSC (of blessed memory).

“There can be no doubt that rule 5(4) of Order 37and Order 2 rule 1(4) are im pari materia that is acommon ground of the parties. I have also come to thesame conclusion. Having closely scrutinized the twoprovisions, they are similar in a substantial particularand so, the cited case is binding on the trial court. Andas Bracon in his book said:-

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“If however similar things happen to take place,they should be adjudged in a similar way, for itis good to proceed from precedent to precedent.”

And I couldn’t agree more. I can say here withoutmore that the construction of Order 2 rule 1(4) asstated above should be applied mutatis mutandis tothe construction of the provisions at rule 5(4) Order37.The above construction of Order 2 rule 1(4) cannotbe faulted. And so, with approval of the decision inRe: Appollos Udo (supra) I adopt the above reasoningin construing the instant rules 5(4) Order 37.In thisregard, therefore, I hold that the filing of a verificationaffidavit is personal to the applicant/appellant in thismatter and not that of the bailiff.”

I agree entirely with the views express in Re: Appollos Udo(supra) and the decision of this court in Onyemaizu v. Ojiako (supra).The service of verifying affidavit is personal to the applicants/appellants. Definitely not that of the bailiff. After all, the applicantsare those who filed the motion and everything required of them bythe rules must be done by them, failure of which is fatal to theircase. The learned counsel for the appellants urged this court to setaside the decision in Re: Appollos Udo (supra) and Onyemaizuv. Ojiako (supra). Unfortunately, he did not give reasons to thateffect. Moreover, counsel cannot in his brief just like that urge thecourt to depart from and/ or set aside its earlier judgment. I thinkas counsel, he should know the steps to take if he is serious thatwe depart from our earlier decision. Nothing is even shown thatRe: Appollos Udo (supra) and Onyemaizu v. Ojiako (supra) weredecided per incuriam such invitation is hereby refused.

On the whole, it is my view that the appellants failed to complywith mandatory provisions of Order 2 rule 1(4) of the FundamentalRights (Enforcement Procedure) Rules 1979 when they failed tofile an affidavit of service before the date the matter was fixed forhearing and for failure to place the said affidavit before the Judgehearing the application. Accordingly, the sole issue submitted forthe determination of this appeal is hereby resolved against theappellants.

In conclusion, I hold that there is no merit in this appeal. It isaccordingly dismissed. Parties to bear their respective costs.

Appeal dismissed.

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PETER-ODILI, J.S.C.: I am in agreement with the judgment justdelivered by my learned brother, John Inyang Okoro JSC and I shallmake some remarks to register the support I have in the reasoningsfrom which the decision came about.

This appeal is against the judgment of the Court of Appeal,Calabar Division, or lower court or court below, Coram: DalhatuAdamu, Istifanus Thomas and Jean Omokri JJCA delivered on the8th day of December, 2005 affirming the decision of Eneji J of theHigh Court of Cross – River State, Ikom Division delivered on 13thAugust, 2003, striking out appellants’ application for enforcementof their fundamental rights on the ground that the appellants did notpersonally file an affidavit of service.

The fuller details of the facts leading to this appeal arecaptured in the lead judgment and I shall not repeat them unlesscircumstances warrant a reference to any of the facts.

At the hearing on the 10th of February 2020, learned counselfor the appellants, Dr. Ikani Agabi adopted the brief of argument ofthe appellant filed on 3/2/20 as amended in which he distilled a soleissue.

Whether the learned Justices of the Court of Appealwere right in their interpretation and application ofthe Provisions of Order 2, rule 1 and of theFundamental Rights (Enforcement Procedure) Rules,and the distinction made by the lordships as to serviceof court processes under those Rules and the HighCourt of Cross River State (Civil Procedure) Rules1987)?

Max Ogar Esq. of counsel for the 1st respondent adopted thebrief of argument filed on 5/2/20 and deemed filed on 10/2/20 on

which he drafted a single issue, viz:-

Whether the learned Justices of the Court of Appealwere right in affirming the decision of the High Courtstriking out the appellants’ application for failureto comply with the express and mandatory rulesregulating the enforcement of fundamental rights.

The learned Attorney General of Cross River State, TankoAshang Esq. adopted the brief of the 2nd respondent filed on 4/2/20and deemed filed on 10/2/20 in which he tersely crafted the singleissue thus:-

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Whether the lower court was right to have affirmed thedecision of the trial High Court striking out this matterfor being incompetent.

Each issue differently presented by the three parties say thesame thing which in effect is,

Whether the Court of Appeal was right in affirmingthe decision of the trial court which struck out theapplication of the appellants for incompetence.

Putting across the position of the appellants, learned counsel,Dr. Ikani Agabi stated that the two courts below had read intoOrder 2, rule 1 and of the Fundamental Rights (EnforcementProcedure) Rules which what were not intended by the Chief Justiceof Nigeria in making the Rules and thereby gone outside the tenetsof the interpretation of statutes. He cited The State v. COP (In ReAppollos) (1987) 4 NWLR (Pt.63) 31; Onyemizu v. Ojiako (2000) 6NWLR (Pt.659) 25; University of Ilorin Teaching Hospital v. Akilo(2000) FWLR (Pt.28) 2286 at 2294 – 2295; Egbe v. Yusuf (1992) 6NWLR (Pt.245) 1 at 12 etc.

That what had happened in this case is technicality taken to astiffling limit at the expense of substantial justice.

Learned counsel for the 1st respondent, Max Ogar Esq.contended that the Rules stipulated mandatory conditions on themode of service and the strict compliance had to be respected to theletter. He cited Solanke v. Somefun (1974) 1 SC 141 at 150; OrakulResources Limited v. Nigeria Communications Limited (2007) 18WRN 87 at 116 (CA).

The learned Attorney General of Cross River State, TankoAshang Esq. for the 2nd respondent submitted that the law is settledthat the Fundamental Rights (Enforcement Procedure) Rules is notsimply a Rule of Court procedure but Rules that are in themselveslaw. He cited Victor Anozie v. I.G.P. Ors. (2016) 11 NWLR (Pt.1524) 387 at 404 (CA) etc.

The contending positions of the parties in summary are forthe appellant that the Chief Justice of Nigeria in promulgating theFundamental Right Enforcement Procedure) Rules, 1979 in Order2, Rule 1 and should be mandatory in such a way that theapplicant who is seeking to enforce his fundamental rights that willserve his summons or motion on the respondents and then file anaffidavit of service. That the exculpating factor in this case is the

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fact that there were affidavits of service in the trial court’s file whichthe courts below should not have closed their eyes to, particularlywhen the respondents who were the persons to be served appearedin court in answer to the processes served on them.

Disagreeing with the stance of the appellants, the 1strespondent’s position stated that there is no getting round the clearprescriptions of Order 2, rule 1 and since once the law hasstipulated the mode, style and method of doing something no otherway would suffice.

The 2nd respondent was of the same line of thought and positionas the 1st respondent.

It has to be stated as has been done in a plethora of judicialauthorities Rules of court are meant to be obeyed and a party seekinga relief from any court must comply with the applicable operatingRules of court. The situation in this case at hand is that the relevantRules of court are the Fundamental Rights Enforcement matterswhich are sui generis and in a class of their own and so cannotbe treated like the regular Rules of a particular court or those thathave given room for manoeuvre by the judex in a manner akin to adiscretion. Rules of court are made to be followed as they regulatematters in court, helping parties to present their case within aprescribed procedure for the purpose of a fair and quick trial hencethe strict compliance thereto makes for quicker administration ofjustice which demonstrates the intendment for making of the Rulesin the first place. See Solanke v. Somefun (1974) 1 SC 141 at 150.

For a clearer picture, I shall quote the Rule applying in thisinstance which is thus:-

Order 2, rule 1 of the Fundamental Rights(Enforcement Procedure) Rules provides that:

“An affidavit giving the names and addressesof, and the place and date of service on allpersons who have been served with the motionor summons must be filed before the motion orsummons is listed for hearing, and, if any personwho ought to have been served under paragraphof this rule has not been served, the affidavitmust state the fact and the reason why service hasnot been effected, and the said affidavit shall bebefore the Court or Judge on the hearing of the(3)motion or summons.”

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Construing the 1984 Court of Appeal Rules made pursuant tosection 227 of the 1979 Constitution, impari materia to the one inhand the Supreme Court (per Karibi-Whyte, (JSC) opined:

“The rules made by virtue of powers so conferred arelaws made by powers directly under the constitution.Although, they are made subject to the provisions ofany Act of the National Assembly, they have the sameforce of law as the Constitution itself. Thus, the Courtof Appeal Rules 1984 are valid and enforceable in sofar as they are not inconsistent with the provisions.”

It needs be called in aid the interpretation of similar Rulessuch as the one under discourse, precisely the Anambra State (CivilProcedure) Rules, 1988 which this court gave its position on whatshould obtain in the case of Alfred Onyemaizu v. His Worship J. A.Ojiako & Anor. (2010) 4 NWLR (Pt.1185) 504 at 522 – 523, perChukwuma-Eneh JSC thus:-

“There can be no doubt that rule 5 of Order 37and Order 2, Rule 1 are in pari material: that is acommon ground of the parties. I have also come to thesame conclusion. Having closely scrutinized the twoprovisions, they are similar in a substantial particularand so, the cited case is binding on the

“If however similar things happen to take place,they should be adjudged in a similar way, for itis good to proceed from precedent to precedent.”

And I couldn’t agree more. I can say here withoutmore that the construction of Order 2, rule 1 asstated above should be applied mutatis mutandis to theconstruction of the provisions at Rule 5 (4), Order 37.The above construction of Order 2, Rules 1 cannotbe faulted. And so, with approval of the decision inRE: Appolos Udo (supra) I adopt the above reasoningin construing the instant Rules 5 (4), Order 37.In thisregard, therefore I hold that the filing of a verificationaffidavit is personal to the appellant/appellant in thismatter and not that of the bailiff. I must howeverobserve that the appellant rather than distinguishthe instant case from Re: Appollos Udo (supra) haswithout basis alleged that the case of Re: Appollos Udo

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(supra) has been decided per incuriam without makingout any solid reasons in support for so submitting. Ihave no doubt that the appellant’s submission in thisregard is totally misconceived. I reject the submissionthat the cited case has been decided per incuriam. It isotherwise rightly decided and binding on the trial courtthat has rightly relied on it in deciding the instant case.I have therefore inevitable come to the conclusion thatthe applicant has not satisfied this condition.”

Fortuitously, the Court of Appeal had tackled the interpretationof the Fundamental Rights (Enforcement Procedure) Rules Order 2,Rule 1 in the case of The State v. Commissioner of Police, In Re:Appollos Udo (1987) 4 NWLR (Pt.63) 120 at 1236 per OlatawuraJCA (as he then was) thus:-

“… if any person who ought to have been served inparagraph has not been served the affidavit muststate the fact and the reason why service has not beeneffected” … that is not the duty of the officer of thecourt (apparently, in this case a Bailiff) who shouldstate the reason in the affidavit. The affidavit mustbe deposed to by the applicant… or any person whohas his authority to do so. To construe otherwise is tomake an officer of the court who ordinarily is to reportservice to state reasons why process of court has notbeen served. It is, therefore, my view that the affidavitmust be filed and sworn by the applicant before themotion can be heard …”

I agree with learned counsel for the 1st respondent thatthe above reasoning of the learned law lord is supported by thecommon practice in all the courts where bailiffs are obligated to fileaffidavits of service only when they have effected service.

This position is in consonance with the form of affidavit ofservice provided by the High Court Rules of Cross River State,which form is stated hereunder for purposes of elucidation.

“JUD.43

IN THE HIGH COURT OF THE CROSS RIVER STATE

OF THE FEDERATION OF NIGERIA

C.27.. AFFIDAVIT OF SERVICE

SUIT NO:………………

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BETWEEN:

( ……………………………………….. PLAINTIFF

(

( AND

(

( ……………………………………… DEFENDANT

I, ……. of ……. make oath and state that on the …… day of ……200, at …….O’clock I served upon……. a writ of summons, a truecopy whereof is hereunto annexed issued out of this court at ……upon …….upon the complaint of ……… by delivering the samepersonally to……at…….. Before the day I served the summons, Idid not know……… Personally, but after he was pointed out to beby ….. I asked him if he were …… and he said that he was.

SWORN AT………THIS………..DAY OF………………..200.

BEFORE ME

COMMISSIONER FOR OATHS”

Nothing has happened to change the nature of the FundamentalRights (Enforcement Procedure) Rules in its interpretation as theyare peculiar rules restricted to the enforcement by a citizen of hisright under Chapter IV of the Constitution. There is no provisionfor the importation of any other rules of court for the enforcementof such rights and it is clearly a missing of the way to fall back tothe High Court Rules from which an attempt is made to extend timeor give room for a discretionary leeway. See Ezeadukwa v. Maduka(1997) 8 NWLR (Pt.518) 635 at 671 (CA); SFLK Nigeria Limitedv. Intercontinental Bank Ltd. (2004) 8 WRN; Orakul ResourcesLimited v. Nigeria Communications Limited (2007) 18 WRN 87 at116 (CA).

To cut a long story short as the saying goes, Order 2, rule1 of the Fundamental Rights (Enforcement Procedure) Rulesmakes it mandatory that an affidavit of service must be filed beforethe motion is listed for hearing and such affidavit shall be beforethe Judge on the day of the hearing of the motion. The said Ruleshave made comprehensive provisions for the service of processesand leaving no grey area as to doubt in respect to the form andcontent of the affidavit of service and when it should be beforethe court. These prescriptions are preconditions to the hearing

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of an application brought under the said Rules and so failure tocomply has fatal consequences since the jurisdiction of the court iseffectively ousted or the court stripped of its powers to get involvedin the said proceedings. See Onnoghen CJN in Dorathy Mato v.Herman Hembe & Ors. (2017) LPELR – 45 – 46.

From the foregoing and the well set out lead judgment, thisappeal lacks merit and is hereby dismissed.

I abide by the consequential orders made.

ARIWOOLA, J.S.C.: I had a preview of the lead judgment ofmy learned brother, John I. Okoro, JSC just delivered. I am inagreement entirely with the reasoning and conclusion that theappeal is unmeritorious and should be dismissed.

The sole issue raised for the determination of the appeal is asfollows:

“Whether the learned Justices of the Court of Appealwere right in their interpretation of the provisions ofOrder 2 Rule 1 and of the Fundamental Rights(Enforcement Procedure) Rules and the distinctionmade by their Lordships as to service of court processesunder those Rules and the High Court of Cross RiverState (Civil Procedure) Rules, 1987.”

There is no doubt that the main issue for contention in thisappeal is the provisions of Order 2 rule 1 of the FundamentalRights (Enforcement Procedure) Rules, 1979 which reads thus:

“An affidavit giving names and addresses of and theplace and date of service on all persons who havebeen served with the motion or summons must be filedbefore the motion or summons is listed for hearingand if any person who ought to have been servedunder paragraph of the rule has not been served,the affidavit must state the fact and the reasons whyservice has not been effected, and the said affidavitshall be before the court or Judge on the hearing of themotion or summons.”

On record, it is clear that the appellant filed a motion andnotice on 02/04/2001 pursuant to the leave of court so to do, earliergranted. The said application was filed with the accompanying

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statementandverifyingaffidavit.Uponbeingservedwiththesaidapplication,the1strespondentfiledanoticeofpreliminaryobjectiondated28/5/2001.Thematterwasconcludedwitharulingontheobjectionfinallydeliveredon13/8/2003whenitwasupheldandtheapplicationwasstruckout,forfailuretofileanaffidavitofservice.Theappellants’appealtothecourtbelowwasdismissedforlackinginmerit,on08/12/2005leadingtotheinstant.

Itisclearontherecordthatanaffidavitofservicewasfiledbythelearnedcounselfortheapplicantson9/11/2001.Thereisnodoubtthatasatthetimetheappellants’applicationwasfixedforhearingon10/4/2001andthe1strespondent’snoticeofpreliminaryobjectiondated28/5/2001,therewasnoaffidavitofserviceinthecourt’sfiledandnotbeforetheJudgeasrequiredbytherules.

Theparticularruleintheinstantcaseasearliernotedisclearinitsmandatoryrequirementsasfollows:

(a)ThatanaffidavitofservicemustbedulyfiledbyanapplicantbeforetheMotiononnoticeiseverlistedforhearingbythecourt.

(b)Ifanypersonwhooughttohavebeenservedunderparagraph(3)oftheRuleshasnotbeenserved,theaffidavitmuststatethefactandthereasonwhyservicehasnotbeeneffected.

(c)ThatthesaidaffidavitshallbebeforethecourtorJudgeonthehearingofthemotionorsummons.

InMrs.OluSolankev.G.Somefun&Anor.(1974)1SC141at150,LPELR-3098(SC)9-10thiscourt,perSowemimo,JSC,opinedasfollows:

“Rulesofcourtaremeanttobecompliedwith-andthereforeanypartyorcounselseekingthediscretionarypowerofaJudgetobeexercisedinhisfavourmustbringhiscasewithintheprovisionsoftheRulesonwhichhepurportedtomakehisapplication.”

See;alsoRt.Hon.(Dr)OlisaImogwuv.Mr.EugeneUcheOkochi&Ors.(2013)LPELR-18856(SC),reportedasImegwuv.Okolocha(2013)9NWLR(Pt.1359)347;Asika&Orsv.Atuanya(2013)LPELR20895(SC);(2013)14NWLR(Pt.1375)510;(2014)AllFWLR(Pt.710)1251;(2013)12SCM(Pt.3)246;NonyeIwunzev.TheFRN(2014)LPELR-2054(SC),(2014)6NWLR(Pt.1404)580.

Therequiredaffidavitofservicenothavingbeendulyfiledbytheapplicantandbeavailableinthecourt’sfilewhen

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the application was listed for hearing, automatically renders theapplication incompetent and robs the court of the competence toentertain same. The trial court was therefore right in upholding theobjection of the 1st respondent and striking out the said motion ofthe appellants.

In other words, without any further ado, the sole issue distilledfor the determination of this appeal is resolved against the appellantbut in favour of the respondents. The appeal is unmeritorious andliable to be dismissed.

In view of the brief comment, and the detailed reasoning in thelead judgment, I also find no merit in the appeal. Accordingly, it isdismissed by me.

I abide by the consequential order including the order on costsin the leading judgment.

Appeal dismissed.

KEKERE-EKUN, J.S.C.: I have had a preview of the judgment ofmy learned brother, John Inyang Okoro, JSC just delivered. I agreeentirely with the reasoning and conclusion that the appeal lacksmerit and should be dismissed.

The bone of contention in this appeal is Order 2 rule 1(4) ofthe Fundamental Rights (Enforcement Procedure) Rules, 1979,which provides:

“An affidavit giving names and addresses at; and theplace and date of service on all persons who have beenserved with the motion or summons must be filedbefore the motion or summons is listed for hearing,and if any person who ought to have been servedunder paragraph of this rule has not been served theaffidavit must state the fact and the reason why servicehas not been effected, and the said affidavit shall bebefore the court or Judge on the hearing of the motionor summons.”

(Italic for emphasis)

The provisions are clear and unambiguous and require noequivocation. They are to be given their natural and ordinarymeaning. The words “shall” and “must” are peremptory. There isno latitude given to the applicant in the matter.

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It is an undisputed fact, as found by the lower court, that asat 10/4/2001 when the learned trial Judge listed the motion forhearing, there was no affidavit of service before the court. Despitelearned appellants’ counsel’s argument to the contrary, it is evidentthat there was an attempt to rectify the omission with the filing ofan affidavit of service deposed to by Bassey Okim, the appellants’solicitor on 9/11/2001 (a full seven months after the date listed forhearing). Learned counsel did not challenge the finding of the lowercourt in this regard.

The appellants having failed to comply with a conditionprecedent to the exercise of the court’s jurisdiction, the applicationwas incompetent. The court below was therefore right in affirmingthe decision of the trial court striking it out.

For these and the more exhaustive reasons advanced in thelead judgment, I find no merit in this appeal. It is hereby dismissed.The parties shall bear their respective costs.

Appeal dismissed.

AUGIE, J.S.C.: My learned brother, J. I. Okoro, JSC, who has justdelivered the lead judgment, dealt extensively and meticulouslywith the issue at stake in this appeal and I agree with his reasoningand conclusion, which represents my views thereon.

I have nothing useful to add that will make an impact on whathe decided. So, I will simply adopt his reasoning and conclusionas mine, and hold that the appellants failed to comply with themandatory provisions of Order 2 rule 1 of the said FundamentalRights (Enforcement Procedure) Rules. The appeal, therefore, lacksmerit, and I also dismiss the appeal.

Appeal dismissed.

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