PRACTICE AND PROCEDURE – FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES – Instance where the incorporation of the facts contained in an affidavit in support of an originating motion as grounds for the relief sought will be held to have complied with the provisions of the Fundamental Rights Enforcement Procedure Rules


“…The finding of the lower Court in respect of this issue, which affirmed the decision of the trial Court, can be found at pages 317 – 320 of the record. I deem it necessary to reproduce the finding in some detail below: “Since the affidavit in support of the Originating motion must contain the fact which support the application and the reliefs sought for therein, the facts therein would certainly not be different from the facts stated in the accompanying Statement as the grounds for the reliefs sought. The facts set out in the statement are usually a summary of the relevant facts that gave rise to the application. The said facts are more elaborately deposed to in the affidavits. It is for this reason that some applicants, instead of setting out the summary of the facts in the accompanying Statement, state therein their reliance on the facts in the supporting affidavit as the grounds for the reliefs sought. I agree that this practice that clearly would not prejudice the respondent in anyway satisfies the requirement of Order 2 Rule 3 of the Fundamental Right Enforcement (procedure) Rules 2009 that the grounds for the reliefs sought be set out in the Statement. By stating in the statement that “facts upon which the reliefs sought are as elaborately stated in the affidavit in support of the application”, the said facts in the affidavit became incorporated in the said statement as the grounds for the reliefs sought. Learned counsel for the respondent has correctly argued that this practice of incorporating into the contents of a document that is primarily in issue the contents of another document by simply relying on or referring to the contents of the second document as part of the documents primarily in issue is permitted by law. This practice, variously identified as incorporation by reference, incorporation and adoption by reference is the express inclusion in one document the contents of another document. This practice is restated in the 9th Edition of Black’s Law Dictionary at page 834 thusly – “A method of making a secondary document part of a primary document by including in that primary document a Statement that the secondary document should be treated as if it were contained within the primary one. The application of this principle in Nigeria is judicially established and approved in a long line of cases including Iwuoha V. NRC (Supra) Okomu Oil Palm Co. Ltd v. Iserhienrhien (supra) Texaco Nig. Plc. V. Kehinde (supra) East Horizon Gas Co. Ltd per KEKERE-EKUN, J.S.C. in EFCC v. WOLFGANG REINL (LCER-2020-39154-SC) at p. 27 – p. 30

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