Alhaji Al-mustapha Haruna Jokolo V. Governor Of Kebbi State & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

BABAALKALI BA’ABA, J.C.A.

This is an appeal against the Ruling of the Kebbi State High Court, sitting at Birnin Kebbi, presided over by Hon. Justice I.B. Mairiga of the Kebbi State High Court of Justice delivered on the 20th day of April, 2006, wherein the court sustained the preliminary objection filed by the respondents on the 5th day of October, 2005 consequently struck out the appellant’s suit No. KB/HC/14/2005.

The appellant, as plaintiff, instituted the action at the Kebbi State High Court against the respondents as defendants jointly and severally. The background facts leading to this appeal as contained in the record of proceedings briefly are as follows: The appellant who was the plaintiff before the trial court, was installed as the 19th Emir of Gwandu, sometimes in 1995 and remained on the throne until Friday, the 3rd day of June, 2005. The 1st respondent/defendant, is the Executive Governor of Kebbi State while the 2nd respondent/ defendant is the Chief Law Officer of the Government of Kebbi State of Nigeria. The 3rd and 4th respondents/ defendants are the bodies charged with the responsibility of approving the selection of the Emir of Gwandu, upon the recommendation made to them by the King makers of Gwandu Emirate. While the 5th – 13th respondents/defendants are the king makers within Gwandu Emirate and are responsible for the nomination, selection and installation of the Emir of Gwandu. According to the appellant/plaintiff, the 14th respondent/defendant Alhaji Muhammed Jega, is the person purportedly nominated and selected as the 20th Emir of Gwandu by the 5th – 13th respondents/defendants who are the kingmakers within Gwandu Emirate.

The 3rd and 4th respondents/ defendants are the statutory bodies charged with the responsibility of controlling, disciplining and superintending Traditional Rulers within Kebbi State. The appellant, Alhaji Al-Mustapha Haruna Jokolo, averred that he did not know the charges against him nor was he informed as to who his accusers were and that he was never given an opportunity of defending himself in respect of the charge or charges levelled against him before his deposition from office as the Emir of Gwandu.

“WHERE FOR the plaintiff claims against the defendants jointly and severally as follows:

1. A Declaration that the purported Order made and signed by the 1st Defendant on Friday the 3rd day of June, 2005 pursuant to the provisions of the Chiefs (Appointment and Deposition) Law Cap 21 Laws of Kebbi State 1996 is irregular, illegal, unconstitutional, null and void and of no effect whatsoever in that:

(a) The purported Order was not made in accordance with the provisions of the Chiefs (Appointment and Deposition) Law of Kebbi State 1996.

(b) The 1st Defendant made the Order in violation of the provisions of the. Law and the Constitution of the Federal Republic of Nigeria 1999.

(b) The Order conflicts with and abrogates the vested rights of the Plaintiff without compliance with the provisions of the Chiefs/Appointment and Deposition Law Cap 21 of KEBBI STATE 1996.

2. A Declaration that the ‘purported deposition of the Plaintiff by the 1st Defendant is in breach of the provisions of the rules of natural justice and a violation of the provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 in that at no time did the 1st Defendant conduct due inquiry into the allegations made by him against the Plaintiff nor did he offer the Plaintiff any opportunity of stating his defence to the allegations made against him.
3. An injunction restraining the 3rd to the 13th Defendants from acting in pursuance of the purported dethronement of the Plaintiff by the 1st Defendant and to set aside the appointment, installation of the 14th Defendant to the throne of the Emir of Gwandu and or presenting to the 14th Defendant with the staff of office until the purported removal of the Plaintiff from the throne by the 1st Defendant on Friday 3rd of June, 2005 is determined by this Honourable Court.
4. A Declaration that the purported process of nominating recommending and forwarding the name of the 14th Defendant by the 3rd to the 13th Defendants to the 1st Defendant and subsequent declaration of the 14th Defendant as the new Emir of Gwandu by the 1st Defendant is null, void and of no effect whatsoever.
5. A Declaration that the Plaintiff ALHAJI ALMUSTAPHA JOKOLO is still the Emir of Gwandu and is entitled to all rights and privileges pertaining thereto.
6. An Order setting aside the Order made by the 1st Defendant on Friday the 3rd day of June, 2005 titled Appointment and Deposition of Chiefs (Deposition of Emir of Gwandu) Order 2005 and all the processes conducted pursuant to that Order, including the meeting of the Kingmakers purportedly held for the selection and appointment of the 14th Defendant as the Emir of Gwandu.
7. An Order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th Defendants either by themselves, agents, privies, servants or through any person or persons howsoever from treating, presenting or dealing with or installing the 14th Defendant as the Emir of Gwandu.
8. An Order of perpetual injunction restraining the 14th Defendant from parading, presenting or styling himself as the Emir of Gwandu or from putting on or wearing any paraphernalia or insignia of the Emir of Gwandu.
9. An Order of perpetual injunction restraining the 5th to 13th Defendants from dealing with treating, presenting, or dealing with or installing the 14th Defendant as the Emir of Gwandu or Landing over to him the staff of office of the Emir of Gwandu.”

On the 4th day of April, 2006, four matters were listed for hearing before the trial court among which was the appellant’s application for amendment as well as the appellant’s application for injunction praying the court for an order to restrain the respondents from taking step to organize the coronation of the 13th respondent/defendant as the new Emir of Gwandu. See pages 14 – 110 of the printed record. The appellant’s counsel applied for the two appellant’s application to be taken first but the respondents’ counsel stated that since the notice of preliminary objection was challenging the jurisdiction of the court, the trial court, is estopped from making any order unless and until the issue of jurisdiction was resolved. The learned trial judge agreed with the position of the learned counsel for the respondents and ruled that the hearing of the preliminary objection of the respondents dated and filed on the 5th day of October, 2005, was the appropriate step forward. The preliminary objection was then taken and the learned trial judge upheld the objection in his ruling dated the 26th day of October, 2005 contained at pages 28 – 54 of the record. At page 41 of the printed record the trial court inter alia held:

“Having said that, I am of the considered view that the 4th defendant by the provisions of section 114 of the Local Government Law is entitled to pre-action notice in terms specified by section 114(2). The fact that this notice has not been issued is not disputed by the plaintiff – there is no averment to the effect that notice has been issued and served in the plaintiff’s statement of claim.

Pre-action notice where it is statutorily required is a condition precedent to the institution of an action. In the case of FAYEMI V. L.G.S.C. OYO STATE (2005) ALL FWLR PT.254 page 901 at 915, it was held that “the place of pre-action notice in our civil procedure is foundational ……………. and goes to the root of what will validate an action and enable the Court to exercise jurisdiction whenever such notice is necessary.”

On the ground of objection on the abuse of the court process, the learned trial Judge at page 54 further held:

“It is the duty of the court under such situation to interfere to stop the abuse See OKAFOR V. A.G: ANAMBRA STATE (1991) 6 NWLR 659 and OKORODUDU V. OKOROMADU (1977) 3 S.C

As the instant suit was filed on the 28/08/05, it constitutes an abuse of the process of the suit filed by the Respondent/ Plaintiff before the Federal High Court Kaduna on the 22/08/05. This ground of objection also has merit and it is allowed.”