Mr. Michael Oladekoyi V. Inspector-general Of Police & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of L. J. AKANBI, J. of the Federal High Court (Akure Division), delivered on the 23rd day of March, 2007. The appellant’s notice and grounds of appeal cover pages 64 to 66 of the record.

At the hearing of the appeal, learned counsel for the appellant – Kola Olawoye, Esq, adopted and relied on his brief of argument dated the 24th day of January, 2005 but filed on the 27th day of January, 2005 and deemed properly filed on 18/05/2005. He urged the court to allow the appeal and set aside the decision of the lower court. On the other hand, the learned counsel for the respondents adopted and relied on his brief of argument dated 20/06/2005 but filed on 22/06/2005 and urged the court to dismiss the appeal and affirm the decision of the lower court.

In his brief of argument, Kola Olawoye, Esq, learned counsel for the appellant, distilled the following issues for determination, namely:

(i) “Whether the proof of service filed by the Appellant on 17/11/03 before the Hearing of this case on 19/1/04 by the lower court satisfied the Provision of Order 2 Rule 1(a) of the Fundamental Right (Enforcement) Procedure Rules 1979?

AND OR IN THE ALTERNATIVE

Did the lower court interpret correctly the decisions in Re-Appolos Udo (1987) 4 NWLR (Pt.63) page 130 and Onyemaizu V. Ojiako (2000) 6 NWLR (Pt. 659) page 25 with regards to the time and mode for filing the proof of service provided in order 2 Rule 1(4) of the said law? (Cover grounds 1 & 3).”

(ii) Whether the decision of the lower court in striking out this case in its said Ruling is not a judgment by technicality made at the expense of the Fundamental Right of the appellant to fair hearing, equity and substantial justice? (Covers ground 2). (Pages 5 – 6 of the appellant’s brief).

On his part, A. O. Adebusoye, Esq, (Solicitor – General, Ondo State) who settled the respondents’ brief, agreed with the issues formulated by the appellant.

On Issue No. 1, counsel for the appellant argued that the cases relied upon by the lower court RE – APPOLOS UDO (1987) 4 NWLR (Pt. 63) 130 and ONYEMAIZU V. OJIAKO (2000) 5 NWLR (Pt.659) 25 were not applicable to the facts and circumstances of this case. He distinguished this case from the said cases and contented that they were not applicable to the case being considered by this Court. On this submission, he referred the court to the cases of CALABAR EAST CO – OP. V. IKOT (1999) 14 NWLR (Pt. 538) 225 at 242, and CLEMENT V. NWUANYANWU (1993) 3 NWLR (Pt. 107) 39 at 54 paras. C – F, where it was held by the Supreme Court as follows:

“Under the doctrine of Stare decisis, lower courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher court considered as furnishing an example or authority for a identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases.

Thus, prior cases which are close in facts or legal principle to the case under consideration are called precedents. The two cases (the one under consideration and the other to be used as precedent) must be close in facts – the facts must be similar for the doctrine to apply……………….

In other words, it will be dangerous to consider any pronouncement of any Court even the Supreme Court in vacuo and without reference to the peculiar facts of the cases in which those pronouncement were made as those facts framed the issues that were decided”

Learned counsel contended that even in the case of IN RE – APPOLOS UDO (supra) the court did not decide that the “affidavit of service must be filed on or before the return date”. He referred to the statement of OLATAWURA, JCA (as he then was) at pages 125 and 127 of that case.