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

…………………….A…………………….

PAUL OBI ELECHI J.C.A.(Delivering the Leading Judgment):This is an appeal against the decision/ruling of the Ekiti State High Court, sitting at Ado Ekiti delivered by Hon. Justice J.O. Adeyeye on the 17th day of May, 2016 refusing 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 lower Court dismissed the Appellant’s Application on the ground that the application was brought outside the stipulated period of three months. The Appellant sought and obtained the leave of the lower Court before filing this Appeal. The Notice of Appeal is contained on pages 156-161 of the record of appeal.
SUMMARY OF FACTS
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. They were attached with the application for leave before the lower Court as Exhibits 3 and 4.
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. The Petition was attached with the Appellant’s application before the lower Court as Exhibit 5.
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 Ruling of the Chief Magistrate Court and the Warrant of Arrest issued were attached with the application for leave before the lower Court as Exhibits 6 & 7 respectively.
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 acknowledged copies of the letter and the letter received by the offices of the Commissioner of Police, Ekiti State and the Inspector General of Police, Abuja were attached with the Appellant’s Application before the lower Court and marked as Exhibits 8 & 9 respectively.
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.

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The Commissioner of Police, Ekiti State has the statutory duty of arresting a suspect for interrogation and if a prima facie case is established against the suspect, he will charge him or her to Court.
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 on pages 113-115 of the Record of appeal).
The Appellant therefore filed the Application (Motion Ex Parte) on pages 1-129 of the Record seeking for an order of the lower 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 motion Exparte was brought pursuant to Order 40 Rules of the Ekiti State High Court, 2011.
The Application was filed on the 31st day of March, 2016. The lower Court heard the application on the 5th day of May, 2016 wherein His Lordship, Hon. Justice J.O. Adeyeye 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 lower Court and sought for the leave of the Court to appeal against the ruling. The application was heard on the 17th day of May, 2016 and same was granted.
The Notice of Appeal containing three grounds of Appeal was subsequently filed on the 17th of May, 2016.
FORMULATION OF ISSUE(S)
The Appellant formulated a sole Issue for the determination of this 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.)
To argue, this issue, learned Appellant Counsel, Gbemiga Adaramola, DPP Ekiti State submitted that the lower Court was wrong to have refused and dismissed the Appellant’s Application for leave to apply for the issuance of the 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 on the 3rd day of February, 2016.
The Order of Mandamus was sought to be issued against the Respondent for his failure, refusal and neglect to carry out the Order of the Chief Magistrate Court, Ado Ekiti. The Order of the Magistrate Court was made on the 3rd day of February, 2016 and the Warrant of Arrest was issued the same day. The Respondent was served with the order of the Chief Magistrate Court on the 5th day of February, 2016. The Respondent subsequently failed, refused and neglected to carry out the order of the Chief Magistrate Court.
Learned Appellant Counsel stated that inspite of the offence committed by Dr. Temitope Aluko, his arrest could not be effected without the issuance of a warrant of arrest pursuant to Section 117 of the Criminal Code Law, Cap C16 Vol. 1 Laws of Ekiti State 2012 which provides thus:
Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of an offence, which is called perjury.
The offender cannot be arrested without warrant.
According to the learned counsel the cause of action that led to the filling of the Appellant???s application before the lower Court was the refusal of the Respondent to carry out the order of the Chief Magistrate Court, Ado Ekiti, Ekiti State made on the 3rd day of February, 2016. If the Respondent had carried out the Order of the Chief Magistrate Court, there would have been no need for the Appellant to seek for the issuance of the Prerogative Writ of Mandamus in order to compel the Respondent to carry out his statutory duty.

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It is stated that the cause of action arose after the refusal of the Respondent to discharge his statutory duty of arresting Dr. Temitope Aluko and investigate all alleged offence of perjury, he has allegedly committed on the 31st day of January, 2016.
The learned lower Court Judge held that the cause of action in the application, before His Lordship, arose in 2014 i.e. when Dr. Temitope Aluko gave evidence before the Governorship Election Petition Tribunal and that the Appellant brought his application for being statute barred i.e. that same was filed outside the three (3) months provided for under Order 40 of the Rules of the Ekiti State High Court, 2011.
But learned counsel contended that the cause of action did not arise in 2014 because Dr. Temitope Aluko had not told a lie then. He gave a true story of what happened before the Governorship election Petition Tribunal in November, 2014. It was only when he gave a different version of the story (a concocted lie) that he perjured.
The 1st version on the 2014 governorship election in Ekiti State was told by Dr. Temitope Aluko before the Governorship Election Petition Tribunal in 2014 wherein he adjudged the election as free and fair and without any electoral malpractices. The second version was made by Dr. Temitope Aluko on about or about the 31st day of January, 2016. Then, one can not rightly say that Dr. Temitope Aluko perjured in 2014 because there was no other version of the story then. But it was in January, 2016 that he perjured, when he said that the election was not free and fair, and the election was rigged.
The action that led to the institution of this case before the lower Court was against the Respondent for his refusal to arrest Dr. Temitope Aluko. The action was not instituted against Dr. Temitope Aluko perse. It is only when the Respondent have executed the Order of the Chief Magistrate Court, and if there is a prima facie case against Dr. Temitope Aluko that an action can be filed against Dr. Temitope Aluko. As at the time the Appellant filed the Application before the lower Court, the cause of action was against the Respondent for his refusal to execute the order of the Chief Magistrate Court and not Dr. Temitope Aluko.
It therefore follows that since the Respondent was only notified of the Order of the Chief Magistrate Court on the 5th of February, 2016, the cause of action against him for his failure to execute the Order that was brought to his notice on the 5th day of February, 2016 could not have arisen before the date of the notification i.e. 5th day of February, 2016. It could only be later and not earlier.
Going by the above scenario, the cause of action in the application before the lower Court arose in February, 2016 or thereafter.
The two questions above have been resolved thus: the cause of action in this case was the failure, refusal and neglect of the Respondent to execute the Order of the Chief Magistrate Court, Ado Ekiti and the cause of action arose in February, 2016 or thereafter when the Respondent failed, refused and neglected to execute the Chief Magistrate Court’s Order.
On when the cause of action arose, learned counsel submitted that it arose when Dr. Temitope Aluko gave a different version on the Ekiti State Governorship Election that was held in 2014.
Hence the cause of action against Dr. Temitope Aluko would have been in January 2016 and not 2014 as held by the lower Court. Therefore, time would start running in an action against the Respondent in February 2016 or thereafter or Dr. Temitope Aluko in January 2016.
The Appellant filed a motion ex-parte at the lower Court praying the Court for
an order of the Hon. Court granting leave for the Applicant 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.
See Jauro & Ors v. Hon. Commissioner, Ministry of Land & Survey, Adanawa State (2013) LPELR-20849 (CA), Fawehinmi v. I.G.P & Ors (2002) LPELR-1258 (SC)
The duty that the respondent was urged to perform (i.e. the arrest of Dr. Temitope Aluko and the investigation of the alleged offence of perjury by the Respondent) is a public duty and the Respondent is statutorily empowered to do it.

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Equally, the Appellant is the Chief Law Officer of Ekiti State, he equally has prosecutorial power to institute criminal actions in Court. The Appellant cannot institute criminal action in Court without the alleged offence being investigated by the Respondent and a prima facies case established before the Appellant could institute Criminal action in Court.
It is the contention of the Appellant that before a party can bring up an application for a preorative Writ of Mandamus, the party has to comply with the provisions of Order 40 Rules 3 & 4 of the Rules of the Ekiti State High Court Rules 2011 which provide thus:
ORDER 40 (4): An application for judicial review shall be brought within three months of the date of occurrence of the subject of the application.
To bring up an application for an Order of Mandamus, the party must first seek the leave of Court to file the application. The leave by motion exparte must be gotten and the motion for the Order of Mandamus must be filed within a period of three months from the date the cause of action accrue.
According to learned Counsel, since the cause of action accrued in February, 2016 i.e. when the Respondent failed, refused and or neglected to execute the order of the Chief Magistrate Court, the Appellant filed his application for leave before the lower Court on the 31st day of March, 2016 was not up to three (3) months allowed by the Rules of the Ekiti State High Court for the filing of the Motion Exparte and the substantive applicable for Mandamus.
Based on the above, learned Appellant counsel submitted that the lower Court was wrong to have dismissed the application of the Appellant on ground that the application is statute barred and urged the Court to so hold.
He then urged the Court to resolve this sole issue in favour of the Appellant and then allow the appeal.
The Respondent formulated two issues for the determination of this appeal thus:
(1) Whether the dismissal of the Application of the Appellant by the lower Court for being out of the period stipulated by the rules of the State High Court proper?
(2) Whether the State High Court has Jurisdiction to hear Application for Writ of Mandamus against the Respondent?
ARGUMENT ON ISSUE ONE
It is submitted that the dismissal of the application filed by the appellant before the lower Court, by his Lordship Hon. Justice J.O. Adeyeye on 17th day of May, 2016 being an application brought outside the period stipulated by the Rules is proper and is in the interest of Justice.
Learned Respondent counsel submitted that the subject of the Application of the Appellant at the lower Court is allegation of perjury which gave rise to the action/Application by the Appellant for warrant of arrest. Therefore following questions become pertinent.
(i) When does the cause of action accrue in this case?
(ii) Does the Respondent have the discretion over the execution of the warrant of arrest for perjury for which the appellant sought to compel the Respondent via writ of order of Madamus.
Cause of action in a matter accrues when the facts that justify the claims are complete. See Bala Hassan v. Babangida Aliyu (2010) 43 NSCQR 39. In Adimora v. Ajufo (1988) 3 NWLR (Pt. 50) 1; (1988) 1 NSCC (1005) at 1018, the Supreme Court, Per Oputa JSC, held that cause of action is every facts which would be necessary for the plaintiff to prove, if traverse, in order to support his right for judgment.
It is the contention of the Respondent counsel that every element for perjury against Dr. Temitope Aluko was completed, when he took oath on 12th November, 2014 and went ahead to give false evidence before the Governorship election petition tribunal in Abuja, as alleged by the Appellant.
The cause of action/subject matter therefore accrued on 12th November, 2014. The issue of proceeding to procure warrant of arrest, subsequent to the confession of Dr. Temitope Aluko on Channels Television on 31st January, 2016 is nothing but a criminal process of seeking redress against an action which in this case is perjury. It is the view that the process of claim or seeking redress in either criminal or civil action can not constitute a separate cause of action outside the main subject matter, wherein this case is perjury.
Learned Counsel stated that the Appellant is not stating the true position of the law when he said paragraph 4.10 and 4.11 of his brief that Dr. Temitope Aluko only committed perjury in January 2016 when he gave a different version of the story he told at the election petition tribunal in his evidence on 12th November, 2014 and that It was

…………………….E…………………….

in January, 2016″ that he perjured, when he said that the election was not free and fair, and that the election was rigged.
By the provisions of Section 117 of the Criminal Code Law Cap C16 Vol Laws of Ekiti State provide that for a person to be liable for perjury, he must have knowingly given false testimony in judicial proceeding or for the purpose of instituting judicial proceeding. So the interview granted by Dr. Temitope Aluko on Channel Television was not in the cause of judicial proceeding and even if it is, a lie does not amount to perjury. The only story tantamount to perjury in the instant case is the evidence before the Governorship Election Petition Tribunal on the 12th November 2014. The issue of the allegation of perjury at the Military Tribunal was not raised at the lower Court. And cannot be raised here at the Court of Appeal without leave. See Aiyeola v. Pedro (2015) EJSC (Vol. 4) 97 (SC). He urged the Court to discountenance same as it constitutes fresh issue.
It is the submission of the Respondent that the limitation period can not be subject to when a claimant or plaintiff became aware of the cause of action.
That the Appellant only became aware of the 2014 perjury by Dr. Temitope Aluko before the election Tribunal in January 2016, could not alter the period that the cause of action and the subject of the application accrue. Therefore the lower Court was right in fixing 12th November 2014 as the period the cause of action accrued and not January 2016.
On the warrant of arrest, it is learned Counsel’s submission that the purported warrant of arrest is not so in content. The purported warrant of arrest reads that the Commissioner of Police (the Respondent) is empowered (Empowered Not Ordered) to arrest Dr. Temitope Aluko. Accordingly, the body language leaves the Respondent with the discretion to exercise the power or not. The warrant of arrest is not an order the lower Court rightly exercised its own discretion in that the duty sought to be compelled on the Respondent is that which he has a discretion to perform. It is stated in this matter that the Appellant received complaint of perjury from one Sunday Olowolafe, rather than forward same to the respondent who has the duty to investigate criminal cases, proceeded to secure warrant of arrest from the Magistrate Court, without the respondent being a party to the application, secured the warrant of arrest for the respondent to execute. Learned counsel is of the view that the attitude of the Appellant is a complete usurpation of the powers, duties and the discretion of the respondent in handling of criminal complaint. By receiving complaint and going to file application for warrant of arrest, the appellant had commenced investigation and divesting the respondent of the discretion on the order to carry out investigation into the criminal case. The respondent can investigate without making arrest, or investigate and establish prima facie before making arrest. In the instant case, the appellant wanted to order the respondent to arrest the suspect before investigation. The above submission is relevant in response to the assertion by the appellant that the respondent refuse to execute a warrant of arrest, the appellant procured from a Court process in which the respondent was not a party. It is trite that, a Court order is not binding on a person who is not a party to the process that gave rise to the order. See Akinsanya v. A.G. Federation and Minister of justice (2013) ALL FWLR (part 688) 941 ratio 2 pp951-952 paras H-B). The Respondent can therefore not be bond by the order of the Magistrate Court to which he is not a party.
He then urged the Court to resolve this issue in favour of the Respondent.
In considering the merit of this appeal, I shall and hereby adopt the sole issue for determination as formulated by the Appellant 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 perjury (pursuant to the order of the Chief Magistrate Court, Ado Ekiti made on the 3rd day February, 2016)
The Appellant filed an Ex-parte application at the lower Court seeking leave for issuance of prerogative Writ of Mandamus against the Respondent pursuant to Order 40 of the Rules of Ekiti State High Court 2011, Section 6(6) B of the Constitution of the Federal Republic of Nigeria; Section 117 of the Criminal Code Law, Cap C16, laws of Ekiti State and within the inherent jurisdiction of the Court.

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From the application and the affidavit in support of the Appellant’s Application at the lower Court, the subject matter of the application is perjury allegation against Dr. Temitope Aluko, for which the Appellant wanted the Respondent to arrest him.
The motion Exparte was filed on the 31st day of March 2016, and brought pursuant to Order 40 Rule of the High Court (Civil Procedure) Rules of Ekiti State 2011. After hearing the application, the learned trial judge refused same on ground that the alleged perjury was committed in 2014 instead of bringing up same three months after its occurrence. Hence this appeal.
However, before bringing an application for a Writ for a Prerogative Writ of Mandamus, the Appellant has to comply with the provisions of Order 40 Rules 3 & 4 of the Rules of Ekiti State High Court Rules 2011 which provides thus:
ORDER 40 (3) (1): No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule
ORDER 40 (4): An application for judicial review shall be brought within three months of the date of occurrence of the subject of the application.
The Application in this matter relates to a petition received by the Hon. Attorney General and Commissioner of Justice Ekiti State from Olowolafe Sunday, a legal practitioner alleging that one Dr. Temitope Aluko perjured before the Military Tribunal when he was giving evidence sometime on or about January, 2016 on the involvement of the Military Officer in the alleged electoral malpractices in the Governorship election in Ekiti State held in June 2014.
In his argument in support of his application learned D.P.P. stated that Dr. Temitope Auko could not be arrested. The Chief Magistrate granted the Order for the issuance of the warrant of arrest of Dr. Temitope Aluko, the ruling of the Magistrate, and the warrant of arrest issued were all attached and marked Exhibits 6 & 7 respectively. Upon all the processes served on the Respondents, the said order of arrest could not be carried out, hence the present appeal.
By Section 117 of the Criminal Code Law, Cap C 16 VOL. 1 Laws of Ekiti State 2012 provides thus:
Any person who, in any judicial proceeding, or for the purpose of instituting and judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of an offence, which is called perjury.
In the present application, the prayer of the Applicant is for an order of the Hon. Court granting leave for the Applicant 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.
Mandamus was defined in the case of JAURO & ORS V. HON. COMMISSIONER, MINISTRY OF LAND & SURVEY ADAMAWA STATE (2013) LPELR-20849 (CA) thus:
Mandamus is simply an order issued by a Court of law, usually the High Court is urged to compel the performance of a public duty in which the person applying for same has sufficient legal interest. Per ABBA, J.C.A. (P. 9, Paras. B-C).
Also FAWEHINMI V. I.G.P. & ORS (2002) LPELR-1258 (SC) also reported in (2002) 7 NWLR (Pt. 767) 606 where the Supreme Court held thus:
Mandamus is a high prerogative writ which lies to secure the performance of a public duty in the performance of which the applicant has a sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand, be done. If there is a discretion in the performance of the duty, the Court has the power to examine whether the discretion to refuse to act has been properly exercised. In the exercise of that power, the Court will not lightly overrule the discretion just because it considers it desirable that the duty be performed. Even if it is found that the discretion was not properly exercised or that there was in fact no discretion at all in the matter, the Court may still exercise its own discretion not to order mandamus on the general ground that the Court would make no order in vain which could no longer be carried out; or no the other ground of expediency that it would serve no useful purpose even if the order were implemented. In those instances, the exercise of the Court’s discretion will need also to pass the usualtest: See de Smith’s Judicial Review of Administrative Action, 4th edition, pages 538-564. If it does not, an order made by the Court is liable to be set aside. Per Uwaifo, J.S.C. (P. 23, paras. A.G)

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Learned Appellant’s contention is that the duty that the Respondent was urged to perform (i.e. the arrest of Dr. Temitope Aluko and the investigation of the alleged offence of perjury by the respondent) is a public duty and the Respondent is statutorily empowered to do it. Equally, the Appellant is the Chief Law Officer of Ekiti State, he equally has prosecutorial power to institute criminal actions in Court. The Appellant cannot institute criminal action in Court without the alleged offence being investigated by the respondent and a prima facie case established before the Appellant could institute Criminal action in Court.
In the Respondent’s brief of argument, learned Respondent counsel F.D. Falade, a Superintend of Police and Officer in charge of legal section State C.I.D., Nigeria Police Ado Ekiti contended that the warrant of arrest is an instrument the Appellant intend to enforce on the Respondent to act upon the purported warrant of arrest that ought to be an order, is not so in content. The warrant of arrest reads that the Commissioner of Police (The Respondent) (is empowered not Ordered) to arrest Dr. Temitope Aluko for perjury. And that the use of the word empowered leaves the Respondent with the discretion to exercise the power or not. It is not an order he stated. Well, that may be so or not. The fact however is that the issue has not reached that level of argument or submission at this state. Until we get to that bridge, we shall know how to cross it. In other words, that level of argument can only be taken and considered when the application on notice is properly before the Court after leave to file it has been granted by an ex-parte application.
In this application, the appellant annexed the petition written by Olowolafe Sunday, the Ruling of the Chief Magistrate and the warrant of arrest in support of his application for leave for the applicant 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 investigate him for the alleged offence of Perjury pursuant to the order of the Chief Magistrate Court Ekiti made on the 3rd day of February 2016.
The appellant contended that he does not have the power to arrest Dr. Temitope Aluko but that the respondent has the constitutional and statutory powers to arrest the respondent with a warrant of arrest already issued by the learned Chief Magistrate of Ekiti State.
Inspite of the documents/materials attached to the Ex-parte motion in support, the learned trial judge in his own wisdom dismissed same on the ground that it was brought outside the stipulated period of three months.
The stage under which this application is brought does not call for the reason why it should be dismissed. The application is merely for an order of the lower Court to grant leave for the Appellant to apply for the issuance of a prerogative writ of Mandamus. And by the way, the application is not yet concerned with when the cause of action arose, yet according to the trial Court but basically upon the refusal of the Respondent to execute the warrant of arrest against the Respondent whereby the Applicant sought leave of Court to apply for the issuance of the Prerogative Writ of Mandamus to compel the respondent to arrest Dr. Temitope Aluko and investigate him for the alleged offence of perjury.
Outside the above which is not yet tenable, there is no other reason why the lower Court refused the ex-parte application. In an application of this nature, the discretion of the trial judge normally comes into play. With all the documents exhibited in support of the ex-parte application without any reference made in their favour or against in the ruling of the learned trial judge, I am of the strong view that it is a discretion made in vaco and therefore can not pass the litmus test of judicious and judicial exercise of discretion and judicial exercise of discretion. In such a case, the Court of Appeal is justified to interfere. And I so do by holding that the Appellants exhibited sufficient documents to sponsor and support their application. As a result, it was wrong for the Court below to rule on the application without reference to the documents placed before it by the applicant. See ENEKEBE V. ENEKEBE (1964) NMLR 42 at 45, UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NSCC 88, BABATUNDE V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCY LTD. & ORS (2007) 4 SCNJ 140 and ODUBA V. SCLLP Aartonderneming Houtmangracht & Anors (1997) SCNJ 216.
In the final analysis, I find this appeal meritorious and it is hereby allowed. Also, the Ruling of the trial Court delivered on the 5th May 2016 in Motion No: HAD/191M/2016 by His Lordship J.O. Adeyeye of Ekiti State High Court, Ekiti is hereby set aside.
AppealAllowed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of reading in draft the Judgement just delivered by my learned brother P.O. Elechi, JCA.
I am in complete agreement with the reasoning and conclusion that the appeal is meritorious and should be allowed.
Appeal Allowed.
FATIMA OMORO AKINBAMI, J.C.A.:I agree.
Appearances