By Sylvester Udemezue
A breaking news carried by The Nation Newspapers on 23 May 2024 under the head, “KANO GOVERNOR REINSTATES SANUSI AS EMIR” had it that “Kano State Governor, Abba Yusuf, on Thursday, May 23, reinstated former governor of the Central Bank of Nigeria (CBN), Lamido Sanusi as the 14th Emir of Kano. Sanusi was dethroned by the Abdullahi Ganduje-led administration that created an additional four emirates. Yusuf on Thursday dethroned Alh. Aminu Ado Bayero and four other first-class emirs in the state. He gave the sacked monarchs 48 hours to hand over to the deputy governor and vacate the palaces. Governor Yusuf announced this after signing the proposed Kano State Emirate Council Law 2024 passed by the Kano State House of Assembly into law”.
The same report had appeared in several other newspapers, including Punch, TheSun, Guardian, Vanguard, Daily Trust,, Leadership, etc on the same 23 May 2024. However, at about 01.52am on 24 May 2024, another breaking news published by dockaysworld.com.ng under the head, “COURT STOPS KANO GOVERNMENT FROM REINSTATING SANUSI” emerged with the following report:
‘A Federal High Court sitting in Abuja has granted an ex-parte order stopping the Kano State Government from reinstating Emir Muhammadu Sanusi II. According to DAILY NIGERIAN, Justice Liman gave the order on Thursday night despite the fact that he is reportedly in the US. The case was filed by a traditional title holder, the Sarkin Dawaki Babba, Aminu Babba-Dan’Agundi.
Granting the order, the judge granted leave to the Plaintiff/Applicant to issue and serve their Concurrent Originating Motion as well as all other court processes on the 6th Defendant (IGP) in FCT Abuja and outside the jurisdiction of the Honourable Court. “That parties are hereby ordered to maintain status quo ante the passage the and assent of the bill into pending hearing of the Fundamental Rights application. “That In view of the Constitutional and Jurisdictional Issues apparent on the face of the application, parties shall address the Court on same at the hearing of the Fundamental Rights application which is fixed for the 3rd of June, 2024. “That in order to maintain the peace and security of the state, an Interim Injunction of this Honourable Court is granted restraining the Respondents from enforcing, executing, implementing and operationalizing the Kano State Emirate Law Council (Repeal) Law.
“That parties are hereby ordered to maintain status quo ante the passage and assent of the bill into pending the hearing of the Fundamental Rights application. The judge therefore adjourned the case is adjourned to 3rd day of June, 2024 for hearing of the Fundamental Rights application.’ The Suit No of the case is: FHC/KN/CS/182/2024 (ALHAJI AMINU BABBA DAN AGUNDI V. KANO STATE GOVERNMENT & 7 ORS).
QUESTIONS ARISING AND MY HUMBLE OBSERVATIONS
(1). Is this lawsuit not an abuse of the process of Court, considering that the subject matter is a chieftaincy dispute over which the Federal High Court does not, under any circumstances, have jurisdiction?
(2) . If issue one is answered in the affirmative, does it not amount to professional misconduct for lawyers to have filed this case in the Federal High Court, considering the subject matter and the cause of action as reported?
(3). Is the presiding judge judge not equally guilty of unprofessionalism in having granted this application after having raised issues of jurisdiction, without resolving the jurisdictional issues raised?
(4). Was/Is this matter properly brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009?
(5). If the report that the order from the Federal High Court was granted in the night of 23 May 2024 is anything to go by, then the question arises as to whether an injunction can stop/restrain a completed act, considering that as of the time the Federal High Court made the said interim restraining order, Governor Yusuf had already signed the Bill into law as a well as reinstated Emir Sanusi Lamido? Is the restraining order not a sort of medicine after death?
MY OBSERVATIONS ON THE ISSUES
(1). ISSUE ONE: On whether this lawsuit is not an abuse of the process of Court, considering that the subject matter is a chieftaincy dispute over which the Federal High Court does not, under any circumstances, have jurisdiction, it is respectfully submitted that the suit is most likely an abuse of the process of Court by the Plaintiff. In my humble opinion, the Federal High Court does not seem to have jurisdiction in the matter; there is hardly any way one would frame the relief to succeed in bringing the suit within the jurisdictional competence of the Federal High Court of Nigeria. It’s a chieftaincy dispute, pure and simple, over which the Federal High Court is incompetent to adjudicate.
(2). ISSUE TWO: On whether it does not amount to professional misconduct for the Plaintiff’s lawyers to have filed this case in the Federal High Court, considering the subject matter and the cause of action as reported, I respectfully submit that the lawyers who filed the case may be considered to have committed an act of professional misconduct in view of the provisions of Rule 15 of the Rules of Professional Conduct (RPC), 2023. What’s the business of the Federal High Court in a chieftaincy dispute in Kano State? The lawyers knew/know or ought to know that under the Constitution the jurisdiction of the Federal High Court is both EXCLUSIVE (meaning that it doesn’t share its jurisdiction with any other Court) and LIMITED, meaning that the Federal High Court is competent to hear ONLY disputes arising from or connected to the matters/items expressly listed in SECTION 251(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999.
Chieftaincy disputes are clearly outside of it, every lawyer ought reasonably to know. Filing the suit at the Federal High Court is a form of disloyalty to the extant law, which is forbidden by RULE 15(3)(a), which provides that “a lawyer must not give service to the client which the lawyer knows or ought reasonably to know is capable of causing disloyalty to the law or bringing disrespect to the holder of any public office”. Also, by virtue of RULE 15(1)(a)&(b), a lawyer ought to keep strictly within the law notwithstanding any contrary instructions by his client and must use his best endeavours to prevent his client from causing a breach of the law”. Finally, RULE 15(3)(b)&(c), RPC provides that “a lawyer shall not file a suit or knowingly advance a Claim that is unwarranted under existing law”.
In my opinion, the lawyers who filed the case at the FHC could be caught under the web of Rule 15 (1),(2)&(3) of the RPC, and as such may be qualified as candidates for professional legal disciplinary processes pursuant to Rule 74(1) RPC, 2023 which provides: “A lawyer who acts in contravention of the provisions of Chapter 1 of these Rules or fails to perform any of the duties imposed by that Chapter, commits professional misconduct and is liable to punishment as provided in the Legal Practitioners Act”. Types of professional misconduct in the legal profession and punishment for professional misconduct are provided for under SECTIONS 12 AND 13 OF THE LEGAL PRACTITIONERS ACT, CAP L11, LDN, 2004
(3). ISSUE THREE: On whether the presiding judge was not equally guilty of unprofessionalism in having granted this application after having raised issues of jurisdiction, and without resolving the jurisdictional issues raised, I respectful submit that the action of the presiding judge who reportedly made this order (that is, if the order was really made), may be viewed as a display of unprofessionalism and may also be seen to amount to a breach of the Code of Conduct for Judicial Officers. Rule 1(1.2) &(1.3) of the REVISED CODE OF CONDUCT FOR JUDICIAL OFFICERS OF THE FEDERAL REPUBLIC OF NIGERIA provides that “1.2.
A Judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities both in his professional and private life. 1.3 A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary”. Paragraphs 1 and 2 of the Code dealing with APPLICATION OF THE CODE provides that “The Code applies to all categories of Judicial Officers throughout the Federation as defined in this Code. 2. Violation of any of the Rules contained in this Code shall constitute judicial misconduct and or, misbehavior and shall attract disciplinary action”
The judge in present case is quoted to have started by observing during the proceedings, that “…In view of the Constitutional and Jurisdictional Issues apparent on the face of the application, parties shall address the Court on same at the hearing of the Fundamental ights application which is fixed for the 3rd of June, 2024.” After this, the judge still, reportedly, went ahead to grant the injunctive orders sought by the Plaintiff/Applicant. It is my humble view that since the judge had found/agreed that the application raised Constitutional and especially JURISDICTIONAL issues (Thank God the judge had SUO MOTU raised the issue of jurisdiction, which is commendable), the judge ought to have waited to resolve the JURISDICTIONAL ISSUES before proceeding to grant such ex parte orders or any other at all in the lawsuit? With which jurisdiction did the judge grant the orders reportedly sought? Can a Court make any order when it has no jurisdiction? The law is (I respectfully submit) that where issues of jurisdiction are raised, the Court shall FIRST OF ALL settle them before going into the matter proper. See OMOKHAFE V. MILITARY ADMINISTRATOR, EDO STATE (2005) 2 MJSC, 173 at 176.
Thus my lord, the Hon Justice Liman should have proceeded to resolve the jurisdictional issues before assuming jurisdiction on the matter. With due respect to the judge, granting an order of interim injunction when your jurisdiction is in issue is tantamount to assuming jurisdiction in the case, I respectfully submit. A court of law can sit over and entertain a case before it but only when it has jurisdiction over the matter. See BRONIK MOTORS V. WEMA BANK (1983) 6 SC, 158. Jurisdiction is fundamental in any proceeding and lack of it is fatal to such proceedings . See OTUKPO V. JOHN (2000) 8 NWLR (pt 669) 507 at 524. In SANUSI V. AYOOLA (1992) 9 NWLR (pt 265) 275, Ogwuegbu, JSC, held that where there is any defect in competence of a court to adjudicate on a matter, such defect is fatal and the proceedings a nullity, however well conducted and decided they may be. It is immaterial however sympathetic the cause or application may seem.
At this juncture, let’s draw an analogy from how Hon Justice Inyang Ekwo of the Federal High Court had handled a lawsuit wherein an applicant sought an interim restraining order in circumstances similar to the present scenario. Madam Aisha Binani (Governorship candidate of the APC in 2023 in Adamawa State) and the APC had in a Motion Ex Parte marked FHC/ABJ/CS/510/2023, sued the Independent National Electoral Commission, the Peoples Democratic Party and its candidate, Governor Fintiri, as 1st, 2nd and 3rd respondents respectively. However, when the Motion Ex Parte came up before the Federal High Court in Abuja, on 08 April 2023, the presiding Judge, Hon Justice Inyang Ekwo, refused to hear the ex-parte motion citing issues of jurisdiction. About what had transpired in the Court in that case, the Punch Newspapers reported:
‘Federal High Court, Abuja, on Tuesday, refused to hear an ex-parte motion filed by the All Progressives Congress candidate in the Adamawa governorship election, Senator Aisha Ahmed, popularly called Binani. Justice Inyang Ekwo, instead, ordered the APC candidate’s counsel, Mohammed Sheriff, to address the court on the issue of jurisdiction…. The judge said though he was ready to hear Sheriff, the lawyer must address the court on issue of jurisdiction before he proceeded. “I am ready too but you have to address me on jurisdiction,” he said. Justice Ekwo, who ordered Sheriff to address him on whether the court had the jurisdiction to hear the matter, held that the application would be taken together with the issue of jurisdiction on the next adjourned date. He, consequently, adjourned the matter until April 26 for hearing of the motion and an address on jurisdiction’. (See: “ADAMAWA POLL: COURT REFUSES TO HEAR BINANI’S MOTION OVER JURISDICTION”; Punch.com, 18 April 2023). I submit that this is the proper procedure, and Hon Justice Liman should have, in the present case, adopted a similar approach.
(4). ISSUE FOUR: On whether this matter was/is properly brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, I hold the respectful view that it is obvious that this was a dispute over the chieftaincy stool of the Emir of Kano. In my opinion, couching the relief to try to create an impression of Fundamental Rights enforcement where none exists, is an unnecessary gimmick to deceive. The Federal High still does not have jurisdiction because the application is not an application for fundamental right enforcement properly so-called. Else, either of the Federal High Court or the State High could have had jurisdiction, because in all cases of fundamental rights enforcement outside those arising from or bothering on employer-employee, labour and trade unions relations, both the Federal High Court and the State High Court have concurrent jurisdiction if the suit is filed under the FREP RULES, 2009. See GRACE JACK v UNIVERSITY OF AGRICULTURE MAKURDI (SC.262/2000) [2004] NGSC 10 (30 January 2004); FUTMINA V OLUTAYO(2017) LPELR-43827(SC), (2017); & EFCC V WOLFANG REINL (2020) LPELR-49387(SC) (2020).
Merely bringing an application under FREP (Fundamental Rights Enforcement Procedure Rules, 2009) does not automatically, place it under the FREP Rules. A consideration of the subject matter of the dispute and the cause of action, is necessary in determining whether or not it is a FREP application properly so-called. See: TUKUR V. GOVT OF GONGOLA STATE (1989) 4 NWLR (pt 117) 517; EGBUONU V. BRTC (1997) 12 NWLR (pt 531) 29. In MADUKOLU VS NKEMDILIM (1962) 1 All NLR 589, the Supreme Court held that for a Court to have or assume jurisdiction in any particular case, the Court must ensure that the subject matter of the case is within the Court’s jurisdiction and there must not be any feature in the case which prevents the court from exercising jurisdiction. Further, it must be noted that by virtue of PARAGRAPH 3(A)&(B) OF THE PREAMBLE TO THE FREP RULES, 2009, only the following rights are capable of enforcement under the FREP Rules, 2009: (A). Rights guaranteed under chapter 4 of 1999 constitution; (B). Rights guaranteed under the African Charter on Human & Peoples Rights (ratification & Enforcement) Act, LFN, 2004; and (C). Rights guaranteed under any United Nations Charter on Human rights.
Accordingly, where the right the APPLICANT seeks to enforce falls outside rights contained in Chapter 4 of 1999 Constitution, or in the African Charter on Human & Peoples Rights (ratification & Enforcement) Act, LFN, 2004, or in the Universal Declaration of Human Rights, or in any other United Nations Charter on Human rights, the law is that Court doesn’t have and would not exercise jurisdiction; the matter must be struck out for being incompetent. See ORDER IX, RULE 1(II) OF THE FREP RULES, 2009. See also SECTION 46(1), CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999. See THE DIRECTOR GENERAL, STATE SECURITY SERVICE V. DIM CHUKWUEMEKA ODUMEGWU OJUKWU & 2 ORS (2006) JELR 54114 (CA). However, under such circumstances, if the Federal High Court ultimately determines/finds that it does not have jurisdiction but that it is the High Court, in this case, the High Court of Kano State (or another court) that has jurisdiction, the Federal High Court has power, instead of striking out the matter, to transfer the same to the relevant/appropriate Court that has jurisdiction. See SECTION 22(2) OF THE FEDERAL HIGH COURT ACT (NIGERIA), which provides that “No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under section 44 of this Act”
(5). ISSUE FOUR: Meanwhile, assuming (but not conceding) that the present matter could by any stretch of the imagination be brought under the FREP Rules, then I still submit that the Federal High Court does/would not have jurisdiction at all. This is because the deposed Emir of Kano was appointed by the Kano State Governor therefore could be said to be an employee of the Governor of Kano State. The law is that where allegations of breach of fundamental rights arise or are raised from or in relation to employment or labour/industrial, master-servant relations, or trade unionism, the National Industrial Court has EXCLUSIVE JURISDICTION. See SECTION 254C (1)(D), OF THE CONSTITUION OF THE FEDERAL REPUBLIC OF NIGERIA,1999.
(6). ISSUE FIVE: On whether an injunction can stop/restrain a completed act, considering that as of the time the Federal High Court made the said interim restraining order, Governor Yusuf had already reportedly signed the Bill into law as a well as reinstated Emir Sanusi Lamido. My opinion is this, that if the reinstatement of Emir Lamido Sanusi had already been carried out before the interim order by Hon Justice Liman of the Federal High Court was (later) made, one wonders which action the said order was/is now targeting to stop/restrain. In an unreported Appeal No: FCA/M6/82 (DAVID DADA & ANOR FOR THEMSELVES AND OTHER MEMBERS OF MALAOYE (ADEITAN) AND OLUGBOGBO RULING HOUSES OF ADA V. CHAIRMAN OF IFEKODUN LOCAL GOVERNMENT CHIEFTAINCY COMMITTEE & ORS), the Court of Appeal had held that “When a Court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. The reason is simple as it is clear. What is sought to be prevented has in fact happened”.
Also, in the case of JOHN HOLT NIGERIA AND CAMEROONS v. HOLT AFRICAN WORKERS UNION OF NIGERIA AND CAMEROONS (1963) 1 ALL NLR 385 @390, the Supreme Court held that an interlocutory injunction is not a remedy for an act which has already been carried out. See also AJEWOLE V ADETIMO (1989) 3PLR/1966/19(SC) (APPEAL NO: SC/3289). Accordingly, it appears to be well settled that an interim or interlocutory injunction cannot be granted where there is nothing to restrain. Thus, it’s submitted that generally, no pre-trial injunction, be it ex-parte, interim or interlocutory, can be issued to restrain any completed act. I respectfully disagree with the reasons given by my Lord, Hon Justice Liman for breaking/flouting this principle of law by granting an injunction to restrain a reinstatement that had already happened or that had already been fully carried out by the Governor of Kano State.
Since the act of the reinstatement had been carried out, from that point onwards, talks about restraining injunctions were foreclosed. What any aggrieved person or persons should be talking about was/is to file an action seeking to set aside or to nullify the act (of reinstatement) already done — well, that is, if such aggrieved person or persons have good legal grounds to believe the act (of reinstatement) being complained against, was not validly or was not properly carried out. With due respect, the Judge in this case (Hon Justice Liman) should not have granted any restraining orders. The proper thing the respected judge should have done was to order the Court processes to be served on the respondents (the respondents to be put on notice) while directing the plaintiff (as was done in the Aisha Binani scenario) to address the Court on the jurisdictional issues already raised.
(To be continued)
Respectfully,
Sylvester Udemezue (udems)
Proctor,
Reality Ministry of Justice (RMJ),
08039136749.
therealistministry@gmail.com.
(24 May 2024)
