Chief J. A. Sanni & Anor V. Commissioner Of Police, Edo State & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling)

The 1st set of Respondents had filed an action Suit No.HIG/32/86 at the Edo State High Court of Justice, sitting at Igarra against (i) The Commissioner of Police, Bendel State (ii) Akoko-Edo Local Government Council, Igarra and (iii) Okuo Luse II, Otaru of Igarra.

The claim therein, was for:

“(1) A declaration that the Defendants’ contention contained in a letter dated 18th day of June, 1986 and referenced No.POL. 2/Vol. III/522 communicated to plaintiffs to the effect that the Plaintiffs are banned from beating the “Arigede Drum” is contrary to Igarra Native Law and Custom.

(2) An Order restraining the Defendants, their servants, agents/privies and others from preventing the Plaintiffs to beat the said “Arigede Drum” having regard to the fact that they are entitled so to do by Igarra Native Law and Custom.”

The suit proceeded to hearing and at the end of it judgment was entered for the Plaintiffs – 1st set of Respondents herein. The 3rd Defendant – Okuo Luse II, Otaru of Igarra, not unnaturally was not satisfied with that judgment delivered by T. K. Dugbo, J., on 8th September, 1987. So, he appealed to this Court, vide the Appeal No.CA/B/60/93. The Parties to the Appeal filed and exchanged their respective briefs of argument. However, pending the hearing of the Appeal, the 3rd Defendant/Appellant – Okuo Luse II, the Otaru of Igarra died in 1997.

On 24th February, 1998, one Chief Okomayin Atari, who became the Regent of Igarra, made an application to this Court wherein he sought to be substituted for the deceased Appellant – Okuo Luse II, the Otaru of Igarra.

The 1st set of Respondents, in reaction to the application of Chief Okomayin Atari aforementioned, filed a motion on notice on 2nd March, 1998 and prayed that the Appeal No.CA/B/60/93 be struck out on the ground that the said Appeal did not survive the deceased Appellant. The Application of Chief Akomayin Atari and that of the 1st set of Respondents were heard together on 12th October, 1998. Due to some procedural defects, Learned Counsel S. S. Obaro, Esq. for Chief Akomayin Atari, withdrew his application and the same was struck out on the ground that the deceased Okuo Luse II was sued in the action at the Court below in his personal capacity and not in his official title as the Otaru of Igarra. Thereafter, the 1st set of Respondents’ application was moved. It was not opposed by Learned Counsel to Chief Akomayin Atari and the same was granted, whereof the Appeal No.CA/B/60/93 was dismissed on the same 12th October, 1998, by this Court.

The Applicant in this Application was appointed as the Otaru of Igarra in March, 1999, whereupon in 2000, he applied vide the Motion on Notice No.CA/B/164M/2000 for Leave to Appeal as an interested party. However, that Application was withdrawn and struck out on 18th February, 2002 on the ground that the name of the deceased Okuo Luse II was still reflected in the Application.

In this Application dated and filed on 21st May, 2002, the Applicant prays for:

1. “An Order granting the Applicant enlargement of time within which to apply for Leave to Appeal as an interested person against the Judgment of the Edo State High Court Igarra in suit No.HIG/32/86 on 8/9/87.
2. An Order granting leave to the Applicant herein to appeal as an interested person against the Judgment entered for the Plaintiff/Respondents on the 8th day of September, 1987 by the then Bendel State High Court holding at Igarra in the Akoko-Edo Local Government Area of the present Edo State in Suit No.HIG/32/86.
3. An Order granting the Applicant extension of time within which he may Appeal against the Judgment of the Bendel State High Court Igarra dated 8th day of September, 1987 aforesaid.

And for such further or other order(s) as (to) (sic) this Honourable Court may deem fit and just having regard to all the circumstances of the case”.

There is an Affidavit of 15 Paragraphs, filed in support of the Application and for ease of reference and appreciation it is reproduced hereunder, inter alia:

“I OBA EMMANUEL ADECHE SAIKI, the Otaru of Igarra, Nigerian, traditional Ruler, residing at the Royal Palace, Idiba Street, Igarra, Akoko-Edo Local Government Area of Edo State make Oath and say as follows:

“1. That I am the present Otaru (the Traditional Ruler) of Igarra in the Akoko-Edo Local Government Area of Edo State and the Applicant herein.