The conflicting orders by courts of coordinate jurisdiction in Kano emirship dispute have stirred up debate as to which of the courts between the Federal High Court and state High Court has jurisdiction to adjudicate on chieftaincy matters in Nigeria, Wale Igbintade writes
Nigerian courts are predictable. When Justice Mohammed Liman of a Federal High Court in Kano granted an ex-parte order stopping Governor Abba Yusuf from reinstating Emir Muhammadu Sanusi II pending the determination of a substantive suit filed against the reinstatement, many Nigerians knew that Liman's order would not be the last high court order in the case.
The prediction became a reality when, in the same dispute, Justice Amina Aliyu of a Kano High Court issued a counter order, directing Aminu Ado Bayero to cease parading himself as the 15th Emir of Kano.
Justice Aliyu also ordered the police to evict Bayero from the mini palace at the State Road.
Trouble started penultimate Friday when Governor Yusuf reinstated Sanusi as the sole Emir of Kano following the implementation of a new law. Sanusi was dethroned in March 2020 and replaced by Bayero under the administration of former Governor Abdullahi Ganduje.
The new law, which came into effect the previous day, Thursday, dissolved the four other emirate councils of Gaya, Karaye, Rano, and Bichi created by Abdullahi Ganduje's administration and merged them into a single Kano emirate.
Consequently, the governor dethroned the emirs of the four disbanded emirates and restored Sanusi as the sole Emir of Kano.
This development led to a series of conflicting and counter-court orders favouring different parties in the dispute over the Kano Emir throne.
On the day of Sanusi's reappointment, Justice Liman of the Federal High Court in Kano restrained the Kano State Government from implementing the new emirate law. Governor Yusuf, however, rejected the court order, claiming that the judge who issued it was in the United States at the time.
Subsequently, Justice Aliyu of the Kano State High Court ordered the police to evict Bayero from the mini palace in Nasarawa, where he has been residing since his dethronement.
Justice Aliyu's order was still not the last high court order in the case.
In a counter order, Justice S. Amobeda of the Federal High Court directed the police to evict the reinstated Sanusi from the Emir's Palace in Kofar Kudu.
But Justice Aliyu of the Kano State High Court restrained the police, the Department of State Services (DSS), and the Nigerian military from evicting Sanusi from his palace.
The conflicting orders have created confusion and heightened tension in the state, providing the state government and security agencies with excuses to selectively enforce the orders based on their preferences between the warring parties.
So embarrassing did the situation become that the Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, as the chairperson of the National Judicial Council (NJC), the body statutorily empowered to discipline erring judges, had to intervene by summoning the chief judges of both the Kano State High Court and the Federal High Court over the conflicting court orders of the judges under them.
According to a statement by the Director of Information of NJC, Soji Oye, Justice Ariwoola summoned Justices John Tsoho, Chief Judge of the Federal High Court, and Dije Aboki, Chief Judge of Kano State High Court, to an emergency meeting scheduled to be held on Thursday this week. He added that the CJN's summons issued to the judges was to prepare the ground for a full-scale probe.
Legal pundits believe that as the courts prepare to deliver judgments any moment from now, they have to carefully examine which of them between the Federal High Court and the Kano State High Court has jurisdiction to entertain chieftaincy matters and disputes.
This is because Section 251 of the 1999 Constitution makes it expressly clear that the Federal High Court is a court of limited jurisdiction confined to issues over which the federal government has competence to make laws or to necessarily ancillary matters.
A state traditional chieftaincy matter does not fall within the purview of the jurisdiction of the Federal High Court but of the State High Court.
Many past judgments of the Supreme Court had warned judges of the Federal High Court to always maintain and uphold the jurisdiction of the court when making decisions.
For instance, in Ojikutu & Ors v Kuti & Ors (2021) LPELR-56231(SC), Justice Samuel Chukwudumebi Oseji of the Supreme Court held that "The existence or absence of jurisdiction in the court goes to the root of the matter, and sustains or nullifies the decision of the court in respect of the relevant subject-matter."
To show the importance that should be attached to jurisdiction at the Federal High Court, Justice Clara Bata Ogunbiyi in Ogboru v Uduaghan 2013 13 N.W.L.R. Part 1370 Page 33 at 53, held thus: "Baby lawyer would be aware of the fact that the Federal High Court lacks the jurisdiction to adjudicate on this matter, let alone the counsel that wrongly filed the matter at the Federal High Court and the trial judge that purported to hear it; and, it is obvious that this is yet another clear case of forum shopping, an abuse of court process."
Legal analysts have argued that even if breaches of fundamental rights are alleged in the disputes between the Kano State Government, Sanusi and Ado Bayero, it is still a chieftaincy matter and as such, they fall under matters within the jurisdiction of the State High Court and not Federal High Court, and that the latter lacks the power to make any order or adjudicate over the matter.
The above, they posited, is supported by the decision of the Supreme Court in Tukur v the Governor of Gongola State where a fundamental right action was initiated by the applicant over his deposition as the Emir of Muri and reappointment of another. In a bid to stop this, a fundamental right action was initiated at the Federal High Court, Kano.
In their judgments, both the Federal High Court and the Court of Appeal agreed that there was jurisdiction over the matter.
But on further appeal to the Supreme Court, the apex court set aside the decisions of the Federal High Court and Court of Appeal on the basis that it was erroneous for the Federal High Court to assume jurisdiction over a chieftaincy matter because fundamental right breaches were alleged.
Specifically, the Supreme Court warned: "Courts in this country, without exception, have no power to prescribe jurisdiction for themselves. Neither do they have the power to expand or reduce their area of jurisdiction."
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Even more telling was the line from the judgement of Justice Otutu Obaseki on a unanimous decision: "...All the breaches of the fundamental rights alleged flow from the deposition of the appellant from the office of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office, and the deposition of the Emir is a chieftaincy question which only a State High Court has jurisdiction to determine."
Two senior lawyers who spoke to THISDAY on condition of anonymity argued that where a court lacks the jurisdiction to entertain the main case, it cannot assume jurisdiction to make either interim or interlocutory decisions or orders. This, according to them, is because jurisdiction is the foundation and live wire of every case.
"Without it, any order made thereafter is an exercise in futility and will be a nullity no matter how sound the judgement is and how beautiful the proceedings were conducted. You cannot place something on nothing and expect it to stand," one of the lawyers stated.
"I submit that the absence of jurisdiction of the Federal High Court in the Kano State Emirate matter nullifies whatever interim orders Justice Liman purported to issue therein. It is surprising that even though Justice Liman acknowledged the fact that there were questions of jurisdiction, he went ahead to grant an interim order without first determining the issue of jurisdiction," the second lawyer said. While both lawyers agreed that where a court order is made, it is binding and must be obeyed even if made without jurisdiction until set by the Court of Appeal to avoid anarchy, the conflicting orders have given the various interested parties in the case the excuse to choose which order to obey. This is a shame on the judiciary.
