Barrister Ismaeel Ahmed V. Alhaji Nasiru Ahmed & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.

This appeal is against the decision of the Kaduna Division of the Court of Appeal dismissing the decision of the Kano State High Court as that court also earlier on has dismissed the appellant’s application to set aside its proceedings on the grounds that they are a nullity.

Aggrieved by the decision the appellant has appealed to this court predicating his grounds of appeal as per the Amended Notice of Appeal deemed properly so filed and served on 13/11/2012. The appellant has filed a brief of argument and therein has raised two issues for determination as follows:

“(1) Whether the trial court was vested with jurisdiction to entertain the reliefs sought in the 1st respondent’s Originating Summons (distilled from grounds 1 and 2 of the Amended Notice of Appeal).

(2) Whether the Appellant is entitled ex debito justitiae to have the judgment of the trial court on 3rd March set aside as a nullity (Distilled from grounds 3, 4, 5 and 6 of the Amended Notice of Appeal).”

From the manner the parties have reacted to the main appeal and the cross-appeals filed in this matter, I think I should firstly identify all briefs of argument as exchanged between the parties particularly so as the respondents have broken themselves into three sets of respondents.

The 1st respondent’s brief of argument deemed filed on 13/11/2012 has raised two identical issues as the ones raised by the appellant in his brief of argument. I do not therefore, see the need of replicating the same all over again here. The 2nd and 3rd respondents have also filed a joint respondent’s brief of argument and have therein raised one issue for determination, which incidentically is also identical to issue one as raised by the appellant in his main brief. The 4th respondent in its brief of argument filed in this appeal has also raised a sole issue for determination; it is identical to issue one as in the appellant’s main brief of argument; again, I do not see the need to replicate the same here. The appellant’s reply brief of argument to the 1st, 2nd and 3rd respondents’ briefs of argument is filed on 11/12/2012, so also filed is the appellant’s reply brief to the 4th respondents brief of argument.

Alhaji Nasiru Ahmed as a cross-appellant in this matter otherwise known as the 1st Respondent/cross-Appellant has filed a brief of argument in the cross-appeal and is deemed properly filed and served on 13/11/2012. His counsel – Adamu Abubakar Esq. has raised a sole issue for determination in the cross-appeal as follows:

“Whether the court below was right when it held that it was not a proper forum to determine infraction of paragraphs 1 and 2 of the 5th schedule of the constitution of the Federal Republic of Nigeria 1999 (as amended) and that it will be unfair to shut out the Appellant (1st Respondent).”

The 2nd and 3rd respondents also as cross-appellants have also filed a joint cross-appeal in this matter; consequently they have filed a joint 2nd and 3rd respondents/cross-Appellants’ brief of Argument deemed properly filed and served on 13/11/2012 and have therein raised a sole issue for determination as follows:

Whether the court below having held that “All that I can say on the issue is that schedule to the Constitution is an integral part of the Constitution and any law or Act inconsistence with its provision is null and void to the extent of its inconsistency” can be heard to say, “it will be most unfair to the Appellant to be shut out of these proceedings by holding that both the Amended Notice of Appeal and the Brief of Argument filed on his behalf are incompetent simply because the Counsel who filed them is in full salaried employment” simply because the lower court felt it was not the proper forum.

The 4th respondent has not cross-appealed and so has filed no brief of argument in regard to that cause.

The Appellant/1st cross-respondent has filed and served his brief of argument to take care of the briefs severally filed by the 1st respondent/cross-appellant on the one hand and the 2nd and 3rd cross-appellants on the other hand. In the said brief of argument has been raised a sole issue for determination as follows:

“Whether the 1st cross-respondent’s appeal the court below was incompetent by virtue of paragraphs 1 and 2 of the code of conduct for public officers as contained in the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended).”