Court name
Court of Appeal
Case number
L 471 of 2010

Hon. Ajose And Ors v Inspector-general of Police And Ors (L 471 of 2010) [2016] NGCA 67 (03 March 2016);

Law report citations
Media neutral citation
[2016] NGCA 67

 

 
 
IN THE COURT OF APPEAL
HOLDEN AT LAGOS
 

 

Between

APPELLANT

1.    HON. RANTI AJOSE
2.    PRINCE OLOWODE JOEL AMOS
3.    MR. AKIN FALOLA

4.    MR. LAWAL MUSTAPHA

5.    CHIEF EMMANUEL TAIWO FALOLA

6.    CHIEF E. M. ASHADE

7.    MR. FATAI GBADAMOSI
(Imam of Ibereko)

8.    MR. ISAAC TIMOTHY

9.    MR. FATAI ERUOSI

10.    MR. LATEEF OKEDEYI

11.    CHIEF YAYA I. SIKIRU
12.    MR. GABRIEL FALOLA
13.    MR. LAWAL OLADURO

14.    MR. AYUBA ERUOSI

and

RESPONDENT

1.    INSPECTOR – GENERAL OF POLICE

2.    COMMISIONER OF POLICE, LAGOS STATE

3.    DEPUTY COMMISSIONER OF POLICE,
STATE CID PANTI

4.    DIVISIONAL POLICE OFFICER,
BADAGRY POLICE STATION

5.    MR. ADEWALE OKOYA
6.    MR. ABRAHAM OLATUNJI OGABI (Executive secretary Olorunda Local Government Development Area)

 
JUDGEMENT

(DELIVERED BY YARGATA BYENCHIT NIMPAR (JCA)

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 3grounds 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. TheAppellantwas 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 1979 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/36/07 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 sidesproffered arguments in respect of their positions. The court shall adopt the issues distilled by the Appellants and adopted by the 5thRespondent for resolution in this judgement. 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) 1 ALL NLR 54; UGBONNA V OLIZE (1971) 1 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, OLAGUNJI V ASEOYE (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 135) 688. 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 (1976) 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. The 5th Respondent went ahead to submit that the court is not bound to state under what law it made its order and that since the materials before the court regarding the status of the 5th Respondent was unchallenged, the court is duty bound to accept the unchallenged evidence, referred to NZERIBE V DAVE ENGINEERING CO LTD (1994) 8 NWLR (PT 361) 121. The 5thRespondent also submitted that the suit challenging his installation as Oba is before another court and as such the trial court had no business to deal with it, referred to ABBAS & ORS V SOLOMON & ORS (2001) 7 NSCQR 44, OLUSANYA V OLUSANYA (1983) 3 SC 41. The 5thRespondent submitted that contrary to the assertions of the Appellants, the court cannot take judicial notice of a pending suit which has not been decided. They also submitted that the resolution of the Lagos State House of Assembly is a simple resolution expressing the opinion or affecting internal affairs of the house which does not have the force of law and that the court cannot speculate on the contents of materials not before it, referred to UBA LTD V ACHORA (1990) 6 NWLR (PT 156) 254.

RESOLUTION:

The main application before the trial court is simply one brought under the Fundamental Rights Enforcement Proceedings and in bringing the action, the Appellants as applicants before the trial court gave the name of the 5thRespondent as “Mr. Adewale Okoya”. The 5thRespondent applied to have his name properly written reflecting his title as “Oba Adewale Okoya” and supported it by the fact that he has been installed and the title gazetted. The trial court granted the application and directed the Appellants to amend the processes to reflect the proper title of the 5thRespondent. The fact of installation and the gazetting is not denied though contested. The contention of the Appellants is that the Fundamental Rights Procedure Rules donot provide for prefixing and there is no chieftaincy contest in the application. The trial court exercised discretion and allowed the Respondent to amend his name,directing the Appellants to reflect the amendment. Hence, the challenge here is basically questioning the discretion of the court in allowing the application.
The trial courtis a High court duly constituted and being a court of record, it has inherent powers to make orders for the due determination ofmatters brought before it. The inherent jurisdiction of the court is an adjunct to assist the delivery of justice only when the laid down procedure is silent but it ought to be evocable only when it promotes the ends of justice. An inherent jurisdiction of court is that power which a court of law exercises for the purpose of delivering substantial justice in any matter with which it is seized under certain peculiar circumstances. The inherent jurisdiction supplements the statutory powers of the court and is dictated by the need for the court to fulfil itself in order to meet the ends of justice. See UNIVERSAL OIL LTD V NDIC (2008) 6 NWLR (PT 1083) 254.It is exercised in the interest of justice where necessary in a particular case. This poweris constitutionally provided for under section 6(6) (a) and (b) of the 1999 Constitution as amended, which states as follows:
“6 (6) The judicial powers vested in accordance with the foregoing provisions of this section-
(a)    shall extend to, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.
(b)    Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;”

     It is therefore wrong to contend that the court cannot exercise certain power unless allowed by a substantive law. Certain aspects of judicial powers exercised by the courtshave by constant practice come to acquire a character that is binding.  Inherent powers that belong to the court includes taking those steps that would allow for due administration of justice. The inherent jurisdiction of the court is exercisable only as part of the process of the administration of justice; it is part of the procedural law, both civil and criminal and not of substantive law. It is invoked only in relation to the process of litigation. See ALHAJI SELANI MABERA V PETER OBI & ANOR (1972) ALL NLR 772. To grant an application to acknowledge the proper title of a party, the court certainly does not require an express permission of the Fundamental Rights (Enforcement Procedure) Rules 1979to do that, that being incidental to the powers of the court to determine matters. Naming parties properly has nothing to do with issues in contention but it is properto situate parties appropriately, descent and part of the dignity that the courts give individual parties. Reciprocal respect is not a sign of weakness.

It is trite that a court will not deny a relief because it was brought under a wrong law when it is an application the court can grant in order to determine the real issues in controversy between the parties and in the interest of justice, see OLATUNJI V OWENA BANK PLC (2001) FWLR (Pt. 342; FALOBI V FALOBI (1976) 9-10 SC 1. The failure to refer to a law when exercising inherent jurisdiction is not fatal.  The fundamental rights procedure need not provide for such before the court can exercise discretion to direct the correct prefixing of the name of the 5thRespondent. The rules do not stand alone as it calls into play other laws and the Constitution.

There were materials before the court to exercise its discretion, the 5thRespondent annexed the gazette prefixing him as Oba, published as Lagos State Government No.15 Vol.40 of 8th June 2007. The court is duty bound to give recognition to the gazette regardless of what opinion the court expressed in the ruling. The court finally directed compliance with the gazette in effecting the prefixing of the 5thRespondent’s name. The court’s directive has nothing to do with any pending suit seeking to set aside the installation and recognition of the 5thRespondent by government. This is because until the gazette is set aside by a court of competent jurisdiction, it is binding on all, a notice to the whole world and must be complied with. If the Appellants were not aware, then the order of court gave them the required notice and directive to comply. It is clear on the record of appeal that the Appellants did not challenge the facts deposed to by the 5thRespondent in asking the court for the order designating him appropriately.

    Can the discretion of the court be questioned? Discretion exercised by a trial court cannot be interfered with lightly, see NZERIBE V DAVE (1994) 8 NWLR (361) 124 where the apex court held thus:
“an appellate  court would not, generally, question the exercise of discretion by the trial judge merely because it would have exercised this discretion in a different way if it had been in the position of the lower court. It ought to be very slow to interfere with the discretion of a trial judge unless it appears that the result of the order made below is to defeat the rights of the parties altogether, or that the trial judge gave no weight or sufficient weight to important considerations, in such cases, an appellate court has the power to review such an order and it isits duty to do so.” Per OGWEGBU, J.S.C

An appellate court can only interfere with the exercise of discretion by a trial court under certain circumstances as held in the case of NWADIOGBU V ANAMBRA/ IMO RIVER BASIN AUTHORITY (2010) LPELR – 2089 (SC) where the apex court held as follows:
“However, an appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrong exercise of the judicial discretion such as where the court acts under a mis- conception of law or under mis- apprehension of fact by considering irrelevant matter.”
See also UNIVERSITY OF LAGOS V AIGORO (1985) 1 NSCC1 at 88.

I do not find the exercise of discretion premised on wrong principles and therefore unable to interfere by setting it aside. Before rounding up this judgement, I strongly feel this is one appeal that is unnecessary. The Fundamental Rights Procedure is designed to enable Applicants enforce their right without the unwieldy procedure applicable to other claims. Here, you have Applicants who on their own part stalled the speedy determination of their application to enforce their fundamental right by an unnecessary interlocutory appeal over the prefixing of a Respondent’s name. What is the miscarriage of justice that the Appellants would suffer if the 5th Respondent is named as recognized by the gazette? More so, it was the order of a court of competent jurisdiction so its compliance cannot be used against the Appellants in their claim challenging the installation of the 5th Respondent, a matter not before the lower court. Parties should learn how to sift out unnecessary issues and focus on the major ones that can yield benefit to them and not dissipate energy on issues that add no value.
On the whole, I find this appeal lacking in merit. The ruling of the trial court delivered by HON. JUSTICE OYEFESO on the 2nd April, 2009 is hereby affirmed. The Appellants are to comply with the order of the trial court.
Cost of N50,000.00 to the 5th Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A:    I had the honour of reading in draft the closely reasoned judgment prepared by my learned brother Yargata Byenchit Nimpar, J.C.A., with which I agree.
    Amending the title of a party, an harmless order, in suit on fundamental rights does not transform into granting the party the substantive relief the title bears. The order so made by the court below was to enable proper parties be before the court to fair and effectual adjudication of the fundamental rights dispute between the parties. It was not a case if tussle over Obaship of Ibereko Chiefdom
    For this reason give (supra) and the elaborate reasons contained in the lead judgment, I too fid the appeal unmerititous and hereby dismiss it and affirm the ruling of the court below with N50.000 cost against the appellants

SAMUEL CHUKWUDUMEBI OSEJI:  I had the privilege of reading before now the lead judgment just delivered by my learned brother Y.B. NIMPAR JCA.
I am in agreement with my with my lord’s conclusion that the appeal lacks merit.

Accordingly, I also hold that the appeal be and is hereby dismissed.

I abide by the consequential orders in the lead judgement including order as to cost.

COUNSEL

K. U. ANI                            FOR APPELLANTS

O. O. BANJOKO                    FOR RESPONDENTS