Hon. Ranti Ajose & Ors V. Inspector – General of Police & Ors (2006)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A.

This is an interlocutory appeal against the ruling of the Lagos State High Court presided over by HON. JUSTICE OYEFESO delivered on the 2nd April 2009 wherein the trial Court upon an application directed the Appellants to amend processes to reflect the title of the 5th Respondent as “Oba Adewale Okoya” who is a titled Chief in the State. The Appellants dissatisfied with the said directive filed a Notice of Appeal dated 16th April, 2009 setting out 3 grounds of appeal.

The brief facts relevant here are simply that the Appellants by way of Fundamental Rights Enforcement proceedings came before the Court seeking to enforce their fundamental rights. The 5th Respondent, a titled Chief whose appointment has been gazetted, applied to have his name properly reflected with his title of “OBA” added to his name. The Appellant was aggrieved by the ruling of the Court and filed this appeal.

The Appellants filed their Appellants’ brief dated 3rd August, 2010 on the 3/8/10 while the 5th Respondent filed his Respondent’s brief dated 19th May, 2011 on the same date. Both

briefs were adopted at the hearing. The Appellants formulated 2 issues for determination which were adopted by the Respondents as follows:

1. Whether the trial Court was right to have ordered the Applicants/Appellants to Amend the name of the 5th respondent to read ‘Oba Adewale Okoya’, instead of Mr. Adewale Okoya after it had said that fundamental rights (Enforcement Procedure) Rules 1929 do not provide for prefixing of any party’s title.
2. Whether the trial Court was right in ordering the Applicant/Appellant to amend their processes to read “Oba Adewale Okoya,’ instead of “Mr. Adewale Okoya” when there is a pending suit NO. BD/36/02 against the 5th Respondent challenging the validity or otherwise of his installation as “Oba of Ibereko” and the resolution of the Lagos State House of Assembly on the 29 October 2007 to the effect that Lagos State Government should reverse the installation of ‘purported Oba Israel Adewale Okoya in view of the fact that the Government was misled or deceived into taking the action.

The Appellants at the hearing withdrew the appeal against the 2nd, 3rd and 4th Respondents and proceeded against the 1st, 5th and 6th Respondents. The

2nd, 3rd and 4th Respondents have hereby been struck out by order of Court. The 1st and 6th Respondents did not file any brief. Only the 5th Respondent is contesting the appeal.

Both sides proffered arguments in respect of their positions. The Court shall adopt the issues distilled by the Appellants and adopted by the 5th Respondent for resolution in this judgment. They shall be taken together.

The Appellant contended that the 5th Respondent cannot bring an application to amend his name from Mr Adewale Okoya to read Oba Adewale Okoya under Order V of the Fundamental Rights (Enforcement Procedure) Rules 1979 because the said Order only allows a party who is not served with process for enforcement of rights to be heard. That the 5th Respondent failed to show the Court the particular provision under the Fundamental Rights (Enforcement Procedure) Rules 1979 where he can enforce his application and that by the finding of the trial Court, no confusion is occasioned by calling the 5th Respondent with “Mr” as such the trial Court’s directive is unnecessary. That the judge is not empowered under the Fundamental Enforcement Rules to make such an order for amendment of the

prefix of the 5th Respondent to read “Oba?” and that even if the order was made under the inherent powers or discretion of the Court, such discretion must be exercised judicially and judiciously, referred to UGHELLI SOUTH LG COUNCIL v EDOJAKWA (2006) ALL FWLR (PT.308) 1301; TOM v. AMEH (11992) 1 NWLR (PT 217) 306; NKWOCHA V MTN (NIG) COMMUNICATIONS LTD (2008) 11 NWLR (PT 1099) 439. The Appellant submitted that the trial Court ought to have been guided by the challenge to the validity of the installation of the 5th Respondent as Oba before making such order, referred to SAFFIEDDINE v COP (1965) l ALL NLR 54; UGBONNA v OLIZE (1971) l ALL NLR 8; OGAR v JAMES (2001) 10 NWLR (Pt.722) 621. According to the Appellants, the trial Court had a duty under S.74 (1) (c) of the Evidence Act to take judicial notice of the pending suit at the High Court and the resolution of the Lagos State House of Assembly even when not pleaded, referred to KLIFCO (NIG) LTD V NSITFMB (2005) ALL FWLR (PT 288) 1209, OLAGUNJU V ADEOYE (2004) ALL FWLR (PT 232) 1416, AMUSA V STATE (2003) 4 NWLR (PT 811) 595. That the trial Court only took judicial notice of the official gazette dated

23rd May 2007 and failure to take judicial notice of the pending suit challenging the 5th Respondent’s installation at the High Court and the resolution of the Lagos State House of Assembly is an error in law and any order made under it is made mala fide. The Appellants further submitted that the trial Court?s order is in speculation of the pending suit before the High Court, referred to AIRGUOREGHIAN v STATE (2004) ALL FWLR (PT.195) 716; OLADELE v STATE (1993) 1 NWLR (PT.269) 294; SANNI v. AGARA (2010) 2 NWLR (PT 1178) 371 and that the trial Court’s order has occasioned a miscarriage of justice to the Appellants, relied on OYEKANMI v NEPA (2000) 12 SC (PT.1) 20; NKWOCHA v MTN (NIG) COMMUNICATION LTD (2008) 11 NWLR (PT 1099) 439; ACB LTD V DOMINICO BUILDERS CO. LTD (1992) 2 NWLR (PT.223) 296.

In response, the 5th Respondent submitted that his installation as an Oba is an executive act with a presumption of regularity by virtue of S.150 of the Evidence Act, SHITTA BEY V A.G. FEDERATION (1998) 10 NWLR (PT 570) 392. The 5th Respondent also submitted that this act was published in an official gazette and this constitutes a notice to the whole world, referred

to NWOSU V IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt.13S) G88. That the Appellants are aware of this installation and until the installation is nullified, the 5th Respondent remains the Oba of Ibereko and should be so addressed. The 5th Respondent submitted that the decision of the Court was arrived at after the Court had considered the materials before it and that the decision was sound, meritorious and reasonable.

According to the 5th Respondent the cases of GOV. KOGI STATE v YAKUBU (PT.710) 521 (sic) and TUKUR v GOV OF TARABA STATE (1997) 6 NWLR (PT.510) 549 submitted by the Appellants are distinguishable from this case and a party is not bound to state the particular section of the law or Rules under which he is moving the Court, referred to OLATUNJI v OWENA BANK PLC (2001) FWLR (PT.54) 342, FALOBI v. FALOBI (1970) 9-10 SC 1. He further submitted that his application was in substantial compliance with Order V of the Fundamental Rights (Enforcement Procedure) Rules 1979. That the primary duty of the Court is to make express findings on issues joined by parties before it which it did, referred to OYEFOLU v DUROSINMI (2001) 7 NSCQR 67.