The Governor Of Kogi State & Ors. V. Col. Hassan Yakubu (Rtd.) The Ejeh Of Ankpa & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

Col. Hassan Yakubu (RTD), was the Ejeh of Ankpa, a first class traditional ruler and a member of Kogi State council of chiefs. In December, 1992, Col. Hassan Yakubu (RTD), hereinafter referred to as the 1st respondent/cross-appellant, was deposed as the Ejeh of Ankpa by the Government of Kogi State. Following his deposition the 1st respondent/cross appellant was detained and his movement restricted in a guest house and only members of his family had access to him.

Aggrieved by his removal as the Ejeh of Ankpa the 1st respondent/cross appellant commenced an action vide an application exparte, for leave for enforcement of his fundamental rights. The leave was granted. He therefore filed a formal application on notice within the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979, and sought 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 (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 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 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.

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

(vi) Ten Million Naira (10,000,000.00) 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 application was supported and opposed with irreconcilable affidavits. Annexed to the affidavits are a number of Exhibits. During the hearing of the application learned counsel for the Governor, Deputy Governor, Attorney-General and Commissioner of Police, Kogi State, who are appellants, in this appeal, raised the issue of competency of the trial court to hear the suit filed by the 1st respondent/cross-appellant. Mr. Haruna who was then the Solicitor-General of Kogi State submitted that the substratum of all the affidavits in support of the application filed by the 1st respondent/cross appellant for the enforcement of his fundamental human right was based on deposition. Counsel argued that it was not a fundamental right to be a chief. He referred to the case of Olaniyi v.Aroyehun (1991) 5 NWLR (pt.194) 652 at 680 where this court, per Karibi- Whyte JSC, held as follows:

“Chieftaincy is not a matter of fundamental rights and cannot be enforced under the provisions of section 31 of the Constitution. It cannot be seriously argued that there is fundamental right to be a chief. It is a privilege claimed by human beings in an organized society to bring order into their mutual relationship. It is not such right which the law can enforce by virtue merely of the claimant being a human being.”

Learned counsel thereafter argued that the action being brought under the Fundamental Rights (Enforcement Procedure) Rules was improperly constituted. The learned trial Judge, in his ruling, agreed with the submission of the counsel for the appellants that the action involving the stool of Ejeh of Ankpa brought under the Fundamental Rights (Enforcement Procedure) Rules was not properly constituted. He therefore dismissed the action. The learned trial Judge thereafter considered the alternative submission of counsel for the appellants that the 1st respondent/cross-appellant was given fair hearing before he was deposed. The learned trial Judge considered the evidence from conflicting affidavit and at the end held:

“Taking every factor into consideration, if I had found in his favour, I would have awarded him the sum of N100,000 (One hundred thousand Naira) only as damages.”

Although it is clear from the conclusion of the learned trial Judge, reproduced above, that the decision he made on the merits was inconsequential and not a decision to respond to since he said “if I had found in his favour I would have ….. ” yet the 1st respondent/cross appellant filed an appeal against such vain decision. In addition, the 1st respondent appealed against the order of the learned trial Judge dismissing his suit when the proper order to make is to strike it out.