Col. Hassan Yakubu (Rtd) V. The Governor Of Kogi State & Ors. (1995)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

At the High Court of Kogi State holden at Lokoja, the appellant asked for the following reliefs:

(i) An order for the immediate production of the body of the applicant before the Honourable Court and for the immediate release of the applicant from detention.

(ii) A declaration that the Continued detention on (House Arrest) of the applicant by the respondents at the Government Guest House Lokoja since the 28th day of December. 1992 is unlawful, unconstitutional, illegal, null and void.

(iii) A Declaration that the purported deposition of the applicant from the stool of Ejeh of Ankpa by the respondents is unlawful, unconstitutional, illegal, null and void.

(iv) An order of injunction restraining the respondents, their agents, servants privies, assigns, representatives and whosoever from threatening or further threatening and harassing the applicant whatsoever.

(iv) An order of injunction restraining the respondents, their agents, servants, privies, assigns, representatives and whosoever from imposing and or installing any other persons to the stool of the Ejeh Ankpa.

(vi) Ten million naira (N10.000,000.00) only being special and general damages against the respondents, jointly and severally for the flagrant abuse and infringement on the fundamental rights of the applicant by the unlawful detention, embarrassment and the purported deposition of the applicant without fair hearing”

The respondents to the motion were:

1. The Governor of Kogi State.
2. The Deputy-Governor of Kogi State
3. The Attorney-General of Kogi State
4. The Commissioner of Police, Kogi State
5. His Royal Highness Alhaji Ahmadu Yakubu (The Ejeh of Ankpa)

Issues were joined and oral arguments apart from the documents filed were proffered. On 28th January, 1993, the learned trial Judge dismissed all the claims of the appellant. The appellant thereupon appealed to the Court of Appeal, Kaduna branch and after a series of additional grounds of appeal, he finally had sixteen grounds of appeal in that Court.

Meanwhile the appellant applied before the trial Court for stay of execution of the judgment of 28th January, 1993 aforementioned and an order restraining the respondents from appointing any other person to take over the stool of Ejeh Ankpa pending the determination of the appeal. This application was also refused and was therefore dismissed by the learned trial Judge. By a letter dated 3rd February 1993 and reference number MAO/LGCA/CHI/S/31 addressed to Ahmadu Yakubu (now the 5th respondent before us) he, Ahmadu Yakubu was appointed the Ejeh of Ankpa in succession to the appellant.

In an application dated 24th March 1994 the 5th respondent, Ahmadu Yakubu, sought to be joined as co-respondent to the appellant’s appeal in the Court of Appeal. The appellant filed a counter affidavit to this motion dated 4th May, 1993. This application was withdrawn by the 5th respondent and struck out on 16th June 1993. There was however another motion by the 5th respondent filed on 17th day of May 1994 brought under S. 33(1) of the Constitution of 1979; Order 1 Rule 22 and Order 3 Rule 6(1) proviso, Court of Appeal Rules 1981; as amended and under inherent powers and sanctions of that Court under Section 6(a) and (b) of the Constitution of the Federal Republic of Nigeria 1979. In the application the 5th respondent sought to be joined as co-respondent in the appeal being a person directly affected by the possible result of the appeal having regard to the subject matter appealed against from the High Court decision of 28th January 1993 and for consequential order directing all the processes already in Court, and to be later in Court, to be served on him i.e. that the record of proceedings; the Notice and all the Grounds of appeal, all the Briefs of Argument already filed to be served on him, and to allow him on receipt of all these documents a period of forty-five days to file his own brief of argument as co-respondent. On that same 16th June 1994 when the first motion was withdrawn and struck out parties argued the motion and ruling was reserved to 27th day of July, 1994. There is a counter-affidavit to the motion argued on 16th June 1994 and it was filed on 14th June 1995, but neither counsel for either side nor the Court of Appeal alluded to it. It would appear, as is normal in several instance of late filing of court-affidavit learned Justices were unaware of its existence as it must have been less than forty-eight hours to the hearing date and the justices’ files never contained a copy. At any rate the court official responsible for serving the counter-affidavit was producing it for the first time on 27th September 1994, when the documents for the record of this appeal were being produced. That was when Ajala, Esq., S.A.N for the 5th respondent saw it as he was unaware of the existence of that counter-affidavit on 16th June, 1994. Onafowokan, Esq. S.A.N. who argued to oppose the motion in the Court of Appeal never adverted to the counter-affidavit. The Court of Appeal in its ruling allowed the 5th respondent to be joined as co-respondent and this gave ground for this appeal.

The appellant formulated three issues for determination based on his grounds of appeal as follows:-

“(i) Whether the failure of the Court of Appeal to consider the appellant’s Counter-affidavit filed on the 14th day of June, 1994 in opposition to 5th respondent’s Motion for joinder dated the 17th day of May, 1994 amounts to denial of the appellant’s right to fair Hearing.