Inspector-general of Police & Ors V. Dr. Ayodele Peter Fayose (Governor of Ekiti State) & Ors (2007)

LawGlobal-Hub Lead Judgment Report

GUMEL, J.C.A.

The appellants, applicants brought a motion on notice pursuant to Order 3 rule 3(1) of the Court of Appeal Rules, 2002 and also under the inherent jurisdiction of this Court seeking for the following reliefs. They are:

1. An order of this Honourable Court staying or suspending the order of interlocutory injunction restraining the appellants/applicants from arresting, detaining or prosecuting the 1st respondent pending the determination of the substantive suit granted by the Federal High Court Akure presided over by Honourable Justice Lambo Akanbi on the 23rd November, 2006 in suit No. FHC/AK/CS/85/2006 pending the determination of the applicants appeal; and
2. For such further orders as this Honourable Court may deem fit to make in the circumstances of this case.

This application is dated and filed on 29th November, 2006 and is Supported by a 41 paragraph copious affidavit and a further affidavit of 19 paragraphs as well as a reply to the counter affidavit of the 1st respondent. Both of these affidavits were deposed to by one Oluwole Aladedoye, a legal practitioner in the law firm of Chief Afe Babalola and Co., counsel to the appellants/applicants. The ruling of the lower court of 23rd November, 2006 in corporating the interlocutory injunction being sought to be suspended is attached to the reply of the counter affidavit of 1st respondent.

The Economic and Financial Crimes Commission (EFCC) filed a similar application pursuant to Order 3 rule 3(1) of the Court of Appeal Rules, 2002. This application of the EFCC is supported by an 11 paragraph affidavit deposed to by one Olatunde Joseph and a 7 paragraph further affidavit deposed to by one Taiwo Salau, a legal practitioner in the Chambers of Rotimi Jacobs and Co., solicitor to the appellant/applicant. The ruling of the lower court of 23rd day of November, 2006 in Suit No. FHC/AK/CS/85/2006 is attached to the further affidavit as exhibit EF2 while there are 2 notices of appeal attached to the main affidavit of Olatunde Joseph. This application is dated and filed on 4th December, 2006.

Another application in similar terms to the earlier 2 herein was filed by the Ekiti State House of Assembly. It is dated and filed on 6th December, 2006. It is supported by an affidavit of 20 paragraphs deposed to by one Oluwole Ojoko, a legal practitioner in the employment of the Ekiti State Ministry of Justice, Ado Ekiti.

The 1st respondent, Dr. Ayodele Peter Fayose, joined issues with each of the applications in 3 separate counter affidavits. The counter affidavit against the application of 29th November, 2006 is of 21 paragraphs and is dated and filed on 7th December, 2006. The counter affidavit against the motion of the EFCC is of 12 paragraphs and also dated and filed on 7th December, 2006, while the counter affidavit against the application of the Ekiti State House of Assembly is of 9 paragraphs and dated and filed on 27th December, 2006. All the 3 separate counter affidavits were deposed to by one Kenneth O. Omoruan, a legal practitioner in the law firm of Alex A. Izinyon and Co., counsel retained by the 1st respondent.

In another twist, the Inspector General of Police and the Attorney-General of the Federation filed one more application dated 5th December, 2006 and filed on 6th December, 2006. This application is pursuant to Order 3 rule 3(1) and (3) of the Court of Appeal Rules, 2002 and the inherent jurisdiction of this Court. It seeks for the following main relief. It is:

“An order of this Honourable Court staying further proceedings in suit No. FHC/AK/CS/85/2006 at the Federal High Court, Akure presided over by Honourable Justice Lambo Akanbi pending the determination of the appeals filed by the appellants/applicants herein.”

This application is supported by a 58 paragraph affidavit with so many copious annexures such as notices of appeal and rulings of the lower court etc. It was deposed to by the same Oluwole Aladedoye. The 1st respondent replied this motion with a 16 paragraph counter affidavit dated and filed on 11th December, 2006, also by the same Kenneth Omoruan. The 1st respondent also added what he chose to call a further and better affidavit in support of his counter affidavit of 11th December, 2006 and it is dated 25th January, 2007.

When these applications came before us for hearing, we sought the views of respective learned counsel on the possibility of consolidating them both with a view to achieving a neater handling of them and, of course, their expeditious determination. Respective learned counsel instantly appreciated and accepted our endeavour. The applications were consolidated and argued together. This ruling is therefore a composite one containing 2 decisions. The first decision would be on the applications to suspend or stay the execution of the interlocutory injunction ordered by the lower court against the Inspector General of Police, Attorney General of the Federation, the EFCC etc on 23rd November, 2006. The other decision would be on the application for stay of proceedings.

The grounds upon which the applicants seek an order of this court to suspend or stay the execution of the restraining order of injunction granted by the lower court are many. They are listed on the motion paper as follows:

1. The injunctive order granted by the learned trial judge in this case was granted in defiance of a notice of appeal challenging the jurisdiction of the Federal High Court to entertain this suit as well as a motion for stay of further proceedings pending the determination of the appeal.
2. The injunctive order was granted regardless of the fact that:

(a) The plaintiff had absconded his post as governor some days before his impeachment.

(b) The impeachment of the plaintiff has not been set aside.

(c) A state of emergency had been declared in Ekiti State and the National Assembly had approved it.