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THE ATTORNEY GENERAL OF EKITI STATE v. THE COMMISSIONER OF POLICE, EKITI STATE

(2018) LPELR-44421(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of May, 2018

CA/EK/51/2016


Before Their Lordships

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria


Between

THE ATTORNEY GENERAL OF EKITI STATE - Appellant(s)

AND

THE COMMISSIONER OF POLICE, EKITI STATE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on civil procedure.

FACTS:
This is an appeal against the decision/ruling of the Ekiti State High Court wherein the Court refused the Appellant's application for leave of the Court to apply for the issuance of a Prerogative Writ of Mandamus to compel the Respondent to discharge his statutory duty of arresting Dr. Temitope Aluko and investigating him for the alleged offence of perjury (pursuant to the Order of the Chief Magistrate Court, Ado Ekiti made on the 3rd day of February, 2016) and consequently face his trial if there is any need for such after the investigation.

The Hon. Attorney General and Commissioner of Justice Ekiti State received a Petition from Olowolafe Sunday, a legal Practitioner alleging that Dr. Temitope Aluko perjured before the Military Tribunal when giving evidence sometime on or about January, 2016. On the involvement of some Military Officers in the alleged electoral malpractices in the Governorship Election in Ekiti State held in June, 2014. He equally made this known to the public vide his broadcast over television which was reported by some Newspapers. Dr. Temitope Aluko had earlier given evidence on the 12/11/2014 before the Governorship Election Petition Tribunal, Ado Ekiti in respect of the Ekiti State Governorship Election held on the 21st day of June, 2014 where the incumbent Governor of Ekiti State (Dr. Peter Ayodele Fayose) emerged and was declared the Winner of the election. ???Dr. Temitope Aluko gave evidence before the Governorship Election Petition Tribunal that the election of Dr. Peter Ayodele Fayose on the 21st day of June, 2014 was free and fair and devoid of electoral malpractices. The witness statement on oath of Dr. Temitope Aluko before the Governorship Election Petition Tribunal is contained on pages 14-39 of the record of Appeal. Dr. Temitope Aluko equally adopted this witness statement on oath before the Governorship Election Petition Tribunal when he was giving his oral evidence in Chief before the Governorship Election Petition Tribunal on the 12/11/2014 and he was cross-examined by the counsel to the other parties.

In a swift and dramatic way on the 31st day of January, 2016, Dr. Temitope Aluko recanted all his evidence that he had earlier given that the election was free and fair. His new version was contained on pages 1 and 9 of the Punch Newspaper and pages 1 and 5 of the Tribune Newspaper both of the 1st day February, 2016. It was consequent upon the above that Olowolafe Sunday Esq. wrote a Petition to the Hon. Attorney General and Commissioner of Justice, Ekiti State to institute legal action against Dr. Temitope Aluko for perjury. Dr. Temitope Aluko could not be arrested without Warrant of Arrest, hence, the Hon. Attorney General & Commissioner for Justice, Ekiti State approached the Chief Magistrate Court sitting at Ado Ekiti for the issuance of the warrant of arrest. The Chief Magistrate Court, presided over by His Worship, Adesoji Adegboye granted the Order and ordered the issuance of the Warrant of Arrest of Dr. Temitope Aluko. The Commissioner of Police, Ekiti State (who was to execute the Warrant of Arrest) was informed about the Order of the Chief Magistrate Court and the Warrant of Arrest through a letter from the Hon. Attorney General & Commissioner of Justice, Ekiti State. The Commissioner of Police, Ekiti State and the Inspector General of Police failed, neglected and refused to execute the Warrant of Arrest and the said Dr. Temitope Aluko was walking freely in town.

Consequent upon the refusal of the Respondent to execute the warrant of Arrest, the only option left for the Appellant was to seek for an Order of Court to compel the Respondent to discharge his statutory duties of arresting Dr. Temitope Aluko for the purposes of investigation of the alleged offence of perjury (pursuant to the Order of the Chief Magistrate Court). ???The Appellant therefore filed the Application (Motion Ex Parte) seeking for an order of the Ekiti State High Court to grant leave for the Appellant to apply for the issuance of a Prerogative Writ of Mandamus to compel the Respondent to discharge his statutory duty of arresting Dr. Temitope Aluko and investigating him for the alleged offence of perjury (pursuant to the Order of the Chief Magistrate Court, Ado Ekiti made on the 3rd day of February, 2016) and consequently face his trial (if there is any need for such) as a result of the investigation.

The High Court heard the application and refused the application on the ground that the alleged perjury was committed in 2014 and the appellant ought to have brought his application for leave within three months of the occurrence of the act. The Appellant was dissatisfied with the decision/ruling of the High Court and appealed to the Court of Appeal.

ISSUES:
The Court adopted the sole issue formulated by the Appellant for the determination of the appeal thus:
"Whether the lower Court was right in refusing the Appellant's Application for leave to apply for the issuance of Prerogative Writ of Mandamus to compel the Respondent to discharge his statutory duty of arresting Dr. Temitope Aluko and investigating him for the alleged offence of Prejury (pursuant to the Order of the Chief Magistrate Court, Ado Ekiti made on the 3rd day February, 2016)."
DECISION/HELD:
In the final analysis, the Court found the appeal to be meritorious and it was thereby allowed. The Ruling of the trial Court delivered on the 5th May 2016 in Motion No: HAD/191M/2016 was set aside.


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