"The law on this point is very clear as it is governed by legislation. The Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 35 of the 1999 Constitution state as follows in Orders 2 and Order 4 (3) and (4); "ORDER 2 1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate. 2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court. 3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made. 4. The affidavit shall be made by the Applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit. 5. Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application. ORDER 4 3. The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the applicant is involved, hear the applicant ex parte upon such interim reliefs as the justice of the application may demand. 4. (a) The application ex-parte under this Order shall be supported by affidavit which shall state sufficient grounds why delay in hearing the application would cause exceptional hardship; (b) A party moving the Court ex parte may support the application by argument addressed to the Court on the facts put in evidence; (c) Where the application is made ex parte for interim reliefs, the Court may make the following orders; (i) Grant bail or order release of the Applicant forthwith from detention pending the determination of the application; (ii) Order that the Respondent against whom the order for the release of the applicant is sought be put on notice and abridge the time for hearing the application; (iii) Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention. (iv) Grant Injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application; (v) Any other order as the Court may deem fit to make as the justice of the case may demand." In this case by the Record on page 1, the Applicant now 5th Respondent filed a motion Ex-parte on 26/5/10 for the following orders: a. An order releasing forthwith, the applicant from unlawful detention at SARS detention cell at Awkuzu pending the determination of the Application. b. An order of injunction restraining the Respondents from taking further steps in connection with the matter or staying all actions pending the determination of the Application. c. An order that the 1st, 2nd, 3rd and 4th Respondent be served through the officer in charge of the Legal Department of the state C.I.D, Awka and that such service be deemed proper as required by law d. Any further order." By Order 4 Rule 3 and 4 of the Rules, in a case where the Applicant is in custody, the application ex-parte can be brought particularly where the liberty of the Applicant is involved as was the case here. The learned trial Judge on page 80 of the record rightly gave the following order: "Court: I order that the Respondent be put on notice of the issue of release of applicant and an order for injunction. (2) leave is granted to the applicant to serve the 1st, 2nd, 3rd and 4th Respondents with the order and all other processes in this suit by substituted means that is by serving same through the officer in charge of Legal Department state C.I.D Awka and such shall be deemed as good and proper service. (3) this matter is adjourned to 7/6/10 for hearing of the motion on notice." The learned trial Judge converted the motion ex-parte to one on notice as has been the correct jurisprudence on this point in this situation. Much was made by the Appellant's counsel about the fact that the process was commenced by a motion ex-parte. It is all a storm in a tea pot as that procedure is right and proper in the circumstance of this case as it is provided by the rules and the justice of the case demanded it be done. See LEEDO PRESIDENTIAL MOTEL LTD. V. BANK OF THE NORTH LIMITED & ANOR. (1998)LPELR-1775 (SC). The 2nd complaint made by the Appellant to the process by which the fundamental right suit was commenced is that there was no affidavit in support setting out the fact as required by the rules and that the affidavit of urgency filed by Mrs. Nwankwo would not suffice more so because a motion on notice should have been filed accompanied with statement in support, grounds upon which the application is brought, reliefs sought and an affidavit setting out the facts relied upon. Appellant's counsel in my view has lost sight of an essential element in the provisions of the rules. It is that any mode of commencement can be used. In Order 2 Rule 2, the application for enforcement may be by any originating process accepted by the Court. I do not see how the commencement of this process by motion ex-parte has adversely affected the rights of the Appellant or led to a gross miscarriage of justice against him. After all, the motion on notice was filed on 13/5/13 with all relevant processes. Contrary to the argument of learned Appellant's counsel, that the ex-parte motion was intended to seek leave pursuant to the provisions of the previous orders, that was not the essence of the motion ex-parte in this case as no prayer for leave to bring an application was sought or obtained. The only leave granted was leave to serve the 1st-4th Respondents herein by substituted means at the trial Court. This issue is resolved against the Appellant."

Per OGUNWUMIJU, J.C.A. IN OKELU v. IGP, ABUJA & ORS CITATION: (2018) LPELR-45062(CA)