Kano Emirate Tussle and Judicial Complications

How incongruous can a court judgment be? If Justice Muhammad Liman of the Federal High Court in Kano holds that the law leading to Aminu Ado Bayero’s sacking as emir remains valid, isn’t he admitting that the legal framework that deposed him is still in effect? Wale  Igbintade asks

Many indigenes of Kano and other parts of Nigeria who thought the Federal High Court would resolve the disputes over who is the authentic Emir of Kano last Thursday, were disappointed when the court left two of the contending forces in limbo.

While the court declared the actions taken by Governor Abba Yusuf on May 23, 2024, as “null and void,” it stated, however, that its ruling does not affect the validity of the Kano Emirates Council (Repeal) Bill 2024, which was passed by the Kano State House of Assembly.

The actions taken by the state governor included the deposition of the 15th Emir of Kano, Aminu Ado Bayero, and the reversal of the status of the emirs of Bichi, Rano, Gaya, and Karaye emirates to that of district heads, following the collapse of their emirates into Kano Emirate.

Based on that law, the governor had also reappointed the 14th Emir of Kano, Muhammadu Sanusi II, as the 16th Emir of Kano. Emir Sanusi was deposed in 2020 by Governor Yusuf’s predecessor, Dr. Abdullahi Ganduje, who had also enacted the law that divided the Kano emirates into five.

But the state House of Assembly passed a bill on May 22 that repealed the Ganduje-approved law and passed another in its place. The governor signed the new Emirates Council law at exactly 5:10 pm on May 23, 2024, in the company of his deputy, the Speaker of the state assembly, and other principal officers of his government. He subsequently announced the deposition of Emir Bayero and the reversal of the creation of the four emirates of Bichi, Rano Karaye, and Gaya. The governor thereafter announced the appointment of Sanusi II as the new emir of a united Kano Emirate.

Dissatisfied with this, a kingmaker in the former Kano emirate, Aminu Agundi, the Sarkin Dawaki Babba, approached the Federal High Court and secured an ex parte order for the status quo to be maintained.

Delivering the ruling on two motions before the court last Thursday, Justice Muhammad Liman set aside Governor Yusuf’s actions on the matter. He also ordered all parties to maintain the status quo ante.

The judge held that the respondents were aware of the earlier order dated May 23, to maintain the status quo, pending the hearing and determination of the case, but went ahead in flagrant disobedience to the order to carry out certain actions.

“I think it is a very serious matter for anyone to flout the orders of the court and go scot-free with it. The catastrophic situation could have been averted if the respondents followed due process by complying with the court order, which would still have allowed them to carry out their assignments.

“Having been satisfied that the defendants have become aware of the order but went ahead to implement the law, it is necessary for the court to assume its coercive powers to enforce compliance with its orders.

“In the circumstances, I hereby order that every step or action taken by the respondents in pursuant to Kano Emirate Council Repeal Law 2024 is null and void and is set aside. However, this order does not affect the validity of the law,” Justice Liman ruled.

The judge, similarly, refused to grant the motion seeking the declaration of the Kano Emirates Council repeal law null and void.

“The applicant cannot challenge the power of the assembly to make laws nor challenge the power of the governor to assent to them,” he held.

Justice Liman granted the respondents’ application for stay of proceedings pending the hearing and determination of their application at the Court of Appeal on jurisdiction.

At a press briefing after the court ruling, the state Attorney General and Commissioner of Justice, Haruna Dederi, said the ruling “has unequivocally reaffirmed the validity of the law passed by the Kano State House of Assembly and assented to by the governor.

“This part of the judgment is very fundamental to the entire matter. A further implication of the ruling is that all actions done by the government before the emergence of the interim order of the honourable court are equally validated. This means that the abolishment of the five emirates created in 2019 is validated, and the deposition of the five emirs is also sustained by the Federal High Court.

“By implication, this means that Muhammadu Sanusi II remains the Emir of Kano. The judge also granted our application for the stay of proceedings until the Court of Appeal deals with the appeal before it on jurisdiction.”

The AG also said the state government had directed the state commissioner of police to remove the deposed emir of the eight metropolitan local governments from the government property where he is trespassing, as the government had already concluded arrangements for the general reconstruction and renovation of the property, including the demolishing and reconstruction of the dilapidated wall fence, with immediate effect.

Analysts believe that because the court knows that it does not have jurisdiction to entertain the case, it created confusion with the incongruous judgment.

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 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.”

Even more telling was the line from the judgment 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.”

A renowned constitutional lawyer, Professor Auwalu Yadudu, found Justice Liman’s pronouncements strange and baffling by approbating and reprobating in the same breath. He argued that the development was not helpful for the judicial process, stressing that the judge assuming jurisdiction on the fundamental human rights aspect and refusing the same on the validity of the substance of the case—the Kano emirates law—has “muddled up the case, and it is very unbecoming of a judge who has now been elevated to the Court of Appeal.”

Professor Yadudu clarified that while he was not accusing the judge of any impropriety, the pronouncements were unbecoming. “How can you say the actions taken in pursuant to a law are set aside, and then say you are not delving into the validity of the said law?” he queried.

He said further that the judge had indirectly held that he lacked jurisdiction on the issue by transferring the case to another judge, but still went ahead to set aside the governor’s actions. The ex-parte order, according to him, should no longer be of any currency because it is being challenged at the Appeal Court, and the judge himself admitted knowledge of this by granting a stay of proceedings and also deciding not to grant an order to nullify the law.

“All these are avoidable. It is not helpful for the judicial process. It is strange and doesn’t speak well of the judge. The question of whether the governor’s actions came before and after the ex-parte order is a question of fact or evidence. It seems from the record that the order came after,” he said.

Certainly, the Court of Appeal has a lot to correct in the matter.