Kano Emirate: The Law, Its Uses and Abuses

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

I consider it necessary to start by stating for the record that I am not acquainted with HH, Muhammad Sanusi II or HH, Aminu Ado Bayero; nor do I know the former Governor of Kano State, Dr Abdullahi Ganduje or his successor, Governor Abba Yusuf. 

Welcome Back, HH, Muhammad Sanusi II

Sannu da dawowa (Greetings on your return), HH, Muhammad Sanusi II, 14th & 16th Emir of Kano. What are the consequences of the newly enacted Kano State Emirates Council (Repeal) Law 2024 (KRL)’s repeal of the Kano State Emirates Council Law 2019 (amended in 2020 & 2023) (KECL), under which Emir Sanusi was dethroned, apart from the fact that the five Emirates that were established by virtue of Section 3(1) of the KECL, that is, Kano, Bichi, Rano, Gaya and Karaye, have been abolished? Section 3 of the KRL additionally set aside all appointments made under the KECL. Indeed, the KRL is a retrospective law, one that influences past actions that took place before it was enacted, as it inter alia takes away some vested rights acquired under the previous KECL. Retrospective laws (aka Ex post facto laws) are allowed under Nigerian law, and are only prohibited when it comes to criminal offences. See Section 4(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). The KRL abolished the Emirate Councils created under the KECL, and removed five Emirs appointed by it. See the case of Ayakndue & Anor v Augustine (2022) LPELR-58926(SC). Also see the case of Adesanoye & Ors v Adewole & Anor (2000) LPELR-142(SC).

Definition of ‘Set Aside’

According to Black’s Law Dictionary to ‘set aside’ means to “cancel, annul or revoke ….”. To cancel or revoke simply means that the appointments of the 15th Emir of Kano, HH Aminu Ado Bayero and that of the four other Emirs were withdrawn, and no longer have legal effect. I’m not sure that the term annul is appropriate in this circumstance, since annulment is a process usually used to dissolve an invalid marriage and to declare that such marriage never took place. The grounds for the annulment of a marriage, for instance include misrepresentation or concealment of a material fact, like the fact that one spouse was already married to someone else and not divorced before contracting the marriage sought to be annulled (bigamy), or impotence of the husband, or incest. In the case of the KECL under which Emir Sanusi was removed and replaced by Emir Bayero and the four other Emirs, it was a  law validly enacted (even though somewhat malicious) by the Kano State House of Assembly (KSHA) by virtue of the powers granted State Houses of Assembly to make laws in Section 4(6) & (7) of the Constitution. Consequently, the appointments of Emir Bayero and the four other Emirs appears to have been valid, thereby, making HH, Aminu Ado Bayero the 15th Emir of Kano, albeit a smaller version of the Kano Emirate that existed before him. Emir Sanusi is therefore, the 14th and 16th Emir of Kano, holding the office immediately before and immediately after Emir Aminu Ado Bayero, the 15th Emir of Kano and the Emirs of the four other Emirates put together. 

17/3/20: A Governor as Bully

I remember my piece of 17/3/2020 titled “A Governor as Bully”, written immediately after Emir Sanusi was removed. I condemned his  dethronement and unconstitutional banishment from Kano, by Governor Ganduje. I concluded that Governor Ganduje had contravened several provisions of Chapter IV of the Constitution and breached Emir Sanusi’s rights including Section 34(1)(a) (right to dignity of a human person); 35(1)(right to personal liberty); 36(1)(right to fair hearing); 38(1)(right to freedom of thought, conscience and religion); 39(1)(freedom of expression), 40(freedom of association); 41 (freedom of movement), and 42(1)(a)(right to freedom from discrimination). See the case of Attorney-General & Commissioner for Justice, Kebbi State v Alhaji Al-Mustapha Jokolo & Ors 2013 LPELR – 22349 (CA). I had questioned Section 13(b) of the KECL, the provision that was used to oust Emir Sanusi, which provided for misconduct that could warrant removal thus: “Where the Emir consciously and intentionally fails to attend meetings of the Council for 3 consecutive times without a valid and reasonable excuse”, and denounced it as being a tool orchestrated to trivialise one of our most ancient traditional institutions, whose origin dates back to the year 999. I had also stated that Emir Sanusi’s removal appeared not to have followed due process, which required an inquiry (investigation) and consultation with the Kano State Council of Chiefs, as a condition precedent to removal. Aside from the fact there was no evidence to show that this process was followed, or that Emir Sanusi was given the opportunity to respond to any allegations levelled against him if there was indeed an investigation, his removal appeared to be the unilateral action of Governor Ganduje, hence, my reference to him as a Bully in my aforementioned piece of 2020. 

I don’t think Emir Sanusi bothered to go to court to fight against his removal, but, he could have applied to the Kano State High Court which is the proper venue for this Kano Emirate matter and not the Federal High Court (FHC), for a judicial review of Governor Ganduje’s action of removing him without following due process. 

The Case at the Federal High Court: Matters Arising

However, last week, following the repeal of the KECL and passing of the KRL, one Sarkin Dawaki Babba, Aminu Babba Dan Agundi went to the FHC to pray the court to, inter alia, restrain the implementation of the KRL and stop the Kano State Government (KSG) from reinstating Emir Sanusi who was not just reinstated, but reappointed. This move is wrong on several levels, and I hope the LPDC (Legal Practitioners Disciplinary Committee) and the NJC (National Judicial Council) will mete out the appropriate punishment to Counsel and the Judge that are involved in this abuse of court process. For one, see Section 15 of the Rules of Professional Conduct of Legal Practitioners 2023 (RPC) & Sections 12 & 13 of the Legal Practitioners Act 2004 (LPA). At a workshop last week, the Chief Justice of Nigeria, Hon. Justice Olukayode Ariwoola, GCON, stated that the NJC would discipline erring judicial officers engaged in activities that are unbecoming of them.

Even a ‘Baby Lawyer’ would be aware of the fact that the FHC lacks the jurisdiction to adjudicate on this matter, let alone the Counsel that wrongly filed the matter at the FHC 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. See the case of Ogboru v Uduaghan 2013 13 N.W.L.R. Part 1370 Page 33 at 53 per Clara Bata Ogunbiyi, JSC on the definition of abuse of court process. 

Firstly, Section 251(1) of the Constitution sets out the exclusive jurisdiction of the FHC, and it is quite obvious that a State Traditional Chieftaincy matter does not fall within the purview of the jurisdiction of the FHC, but of the State High Court. In Ojikutu & Ors v Kuti & Ors (2021) LPELR-56231(SC) per Samuel Chukwudumebi Oseji, JSC, 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”. I submit that that the absence of jurisdiction of the FHC in the Kano State Emirate matter, nullifies whatever interim orders Liman J. purported to issue therein. It is surprising that even though Liman J. acknowledged the fact that there were questions of jurisdiction, he went ahead to grant an interim order without first determining the issue of jurisdiction. 

Secondly, it is trite law that a court cannot grant an injuction restraining a completed act. The KRL has been passed, the Emirates created under the KECL abolished, and the appointments made thereunder, set aside. Emir Sanusi has also been reappointed. Those acts have been completed. It’s like getting an injunction to stop me from going to London, when I have already arrived in London! In AR Security Solution Ltd v EFCC (2018) LPELR-43828(SC) per Kumai Bayang Aka’ahs, JSC the Apex Court held inter alia that an order for injunction is not a remedy for an act which has already been carried out.

Thirdly, the subject-matter of the case is a Kano State Law and Emirship dispute, and not fundamental rights, and the attempt to disguise this fact in how some of the prayers were couched, in order to confer jurisdiction on a court that lacks same, doesn’t change this fact. See the case of Barnax Engr Co. Ltd v Government of Rivers State & Anor (2024) LPELR-61799(SC) per Mohammed Lawal Garba, JSC, where the Apex Court held inter alia that “The law is firmly established that a court cannot, either by mistake or misunderstanding confer itself with statutory jurisdiction where it does not exist in a case, and that parties too, cannot by agreement, acquiescence, waiver or condonation vest a court with such jurisdiction where it is absent”. Flowing from this, it is apparent that Counsel also cannot confer a court with jurisdiction, by manipulating prayers to fit into the purview of a jurisdiction of a court. It is trite law that, it is the Constitution and statute that confer jurisdiction. 

Questions 

Assuming without conceding that the FHC has jurisdiction to hear this matter (it does not), the allegation that Liman J. was outside Nigeria when he granted the interim order, also raises questions. How was he able to hear the ex-parte motion, if it is true that he was absent from the court and Nigeria? If indeed, Liman J. was out of the country, did he take his robes along with him on the trip, as the Practice Directions mandates that the Judge and Counsel must be properly robed during any court hearing? The Federal High Court is located throughout Nigeria; is the court properly constituted with the Judge sitting outside Nigeria, even if it may be virtual? A perusal of the FHC Practice Directions provides for virtual hearing by means of platforms like Zoom and Skype, but the Court Registrar must be liaised with and such motion must be put on the cause list and posted on the FHC website. How did a matter that was filed and purportedly heard on the same day, go through this process before the ex-parte motion was moved? 

Conclusion 

The Kano State Emirate issue confirms the fact that Governors have now become Emperors who are firmly in control of their State Legislatures and sometimes their State Judiciaries, because they provide the funds for Capital Expenditure in the State High Courts. So, it depends on the type of Governor a State has. If he is a despotic, vindictive, unreasonable and incompetent person, then the State will suffer from his useless decisions. If he is good, then, we will see positive outcomes. Either way, a Governor appears not to be  accountable to anyone. Nevertheless, some have argued that unlawful or not, invalid or not, null and void for lack of jurisdiction or not, the interim order issued by Liman J. must be obeyed until it is set aside. If this is so, then it goes without saying, that judicial officers must be stopped from granting reckless orders, especially when they do not have the jurisdiction to hear a matter. The only way to stop such erring judicial officers, is to lay down very clear guidelines that must be followed in this regard, and impose heavy sanctions on those who breach them. It also goes without saying, that what the law envisages when it says that court orders must be obeyed, is that those orders are made judiciously and judicially with every sense of responsibility, and not that they are perverse, and handed down as a result of judicial rascality. My dear colleagues, kindly share your views on this.