Court Of Appeal, Kano, Upholds Use Of Multiple Applicants in FREP Suit And Motion On Notice on Notice As Valid Mode Of Commencement

The Court of Appeal sitting at Kano State has upheld the validity of multiple applicants commencing a Fundamental Right Action in a single application, as well as commencing such action by way of a Motion on Notice.

The Court made these pronouncements whilst delivering its Judgment in an appeal marked CA/KN/289/2019, between Alhaji Ali Maitagaran and Hajiya Rakiys Danholi, which was obtained by ‘TheNigeriaLawyer’. The appeal which emanated from the decision of the Kano division of the Federal High Court presided over by Hon. Justice Obiora Egwuatu.

The Appellants raised six (6) issues for determination before the court, viz;
1. Whether a suit can be commenced by motion on notice alone without any pending originating process/motion
2. Whether the federal high court can depart from [the] Court of Appeal decision and make [its] own decision over the same fact
3. Whether there was service on the second Appellant to legalize his trial, having served somebody else not him with the originating process and without leave of court
4. Whether the trial in the instant case can legally be held when the main parties [DSS] are not parties to it
5. Whether it is only a certified true copy of public document that can be exhibited in an affidavit
6. Whether the lower court was right in acting upon a process filed out of time

In delivering its judgment on issue one, the court noted that a motion on notice where not rooted from a pending matter before a competent court, is in fact a recognize method of commencing an action under the FREP Rules of 2009. The court also noted that the irregularity in any such application as to form cannot defeat the said application, “…the law is that, even if the motion on notice filed by the respondent did not constitute a proper originating process, so long as it sought redress for the infringement of the right guaranteed under the constitution, the competence of the action was not affected by the form of action adopted…”.

Also considering the second issue, the court was of the view that the trial court was right in its distinction of the decision in Kporharor v. Yedi [2017] LPELR [CA] and the case at hand, noting that, whilst the earlier decision was premised on the 1999 FREP Rules, the present action was based on the 2009 FREP Rules. “It is clear as has been shown above that the lower court undertook a painstaking and thorough process of distinguishing the facts, circumstances and the legislation applicable in the present case from those in the decision of this court in Kporharor v. Yedi … before coming to the conclusion that the decision was not applicable in this case. This is within the power of the lower court to do. It is not the complaint of the appellants in this appeal that the lower court wrongly distinguished the decision … and the appellants did not interrogate the process that the lower court used in distinguishing it.

This court thus has no business inquiring into whether or not the lower court rightly distinguished the decision in that case”. “The above said, the complaint of the appellant before the lower court was that the action filed before the lower court was bad for joinder of the cause of action of the respondents for the breach of their fundamental rights. The action was commenced under the Fundamental Right [Enforcing Procedure] Rules 2009. There is no express provision in the Fundamental Right [Enforcement Procedure] Rules 2009 permitting or forbidding such joinder of cause of action… A read through the case of the respondents on the affidavit in support of their application shows that the rights they sought to ventilate arose from a common cause. The finding of the lower court that the action of the respondent was competent cannot be faulted” the court noted.

In deciding on issue three, the court noted the difference between non service of court processes and improper service of court processes, noting that only a party that was improperly served can complain against such a service and not another party [duly served].

In page 17 of the Judgment, the court noted that, “Thus, it did not lie in the mouth of the first Appellant to complain of non-personal service or improper service of the originating processes on the second appellant. It was for the second Appellant to do, and the second appellant did not complain.” However, in page 19 of its Judgment, the court noted that service is deemed personal where it is delivered to the respondent or the agent of the respondent, hence it is not compulsory that service must be affected on a respondent personally.

On the issue of proper parties and the certification of public documents, the court held that the fact that the Appellant did not oppose the striking out of the name of Director General of the SSS at trial, they cannot be heard complaining about it on appeal. Moreso, the court was of the view that leave was necessary before the issue ought to be raised haven not been canvassed at the lower court. It also noted that a mis-joiner or non-joinder of a party in a suit does not automatically affects the suit. On the Public documents, their Lordships considered it an academic question, hence did not pronounce on it.

In all, the court found no merit in the appeal and accordingly dismissed same, whilst making a cost of N100,000 in favor of the respondent and payable by the appellants.

It is note worthy that this decision is not a lone decision, especially in light of the decision of the Court of Appeal Calabar, with suit number CA/C/357/2014, between Chief of Naval Staff Abuja v. Archiving, delivered on the 4th of December, 2020, wherein the court reached a similar conclusion.