Mohammed Atiku-Abubakar v. Miss Ummi Fatima Bolori (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

On 1st November, 2017, in the proceedings before K. B Ayeye, (Mrs.), the Chief Magistrate/Chairman, the Family Court of the Magistrate Court of Lagos State, Lagos Division, hereinafter called the Family Court or the court of first instance, counsel to the respondent herein; the Applicant in the matter before the Family Court, objected to the appearance of the learned Silk, Olasupo Sasore, SAN, in that proceedings, for the instant appellant, who was the respondent in the matter before the Family Court.

The objection was premised on the provisions of Rules 3 and 6 of the Senior Advocates of Nigeria (Privileges and Functions) Rules, which was made pursuant to sections 2(1) and 7(1) of the Legal Practitioners Act, 1975.

The appellant joined issues with the respondent in the said objection, insisting that the law entitles counsel to the appellant the right of appearance in court, by virtue of the provision of section 9 of the Magistrate Court Law of Lagos State, 2009 , which provides that-

Notwithstanding any custom or practice, all Legal Practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrate Court in the State

In a ruling delivered on 10th January, 2018, the Family Court sustained the objection of the respondent, holding that the learned silk, counsel for the appellant, has no right of appearance before the Family Court and cannot therefore appear for the appellant in the matter. See pages 126 – 129 of the record of appeal for the ruling of the Family Court.

The appellant, being aggrieved by the said decision, filed a notice of appeal on 19th March, 2018, at the registry of the High Court of Lagos State, wherein he sought the review and setting aside of the said ruling of the Family Court and setting down the matter for hearing by another Magistrate.

The appeal to the High Court was heard and determined by G. A Safari, J., of the Lagos Division, of the High Court of Lagos State, the lower court. In a ruling delivered on 28th April, 2022, as found at pages 485 – 493 of the record of appeal, the lower court dismissed the appeal and affirmed the decision of the Family Court.

Still dissatisfied with the decision of the lower court, the appellant appealed to this court vide a notice of appeal filed on 25th July, 2022, anchored on four (4) grounds of appeal.

The appellants brief of argument dated and filed on 28th November, 2022, but deemed as properly filed on 15th January, 2024, settled by Oyinkansola Badejo-Okusanya, Esq., had distilled therein three (3) issues for determination, thus;

1. Whether the right to fair hearing includes the right to (the) choice of counsel`
2. Whether the lower court was right to rely on the case of The Registered Trustees of ECWA Church v. Ijesha.
3. Whether an Act of the National Assembly can regulate the practice and procedure in the Magistrate Court of Lagos State

The respondents brief of argument, settled by Mark Anata was filed on 21st March, 2023, but deemed properly filed on 15th January, 2024, with a sole issue for determination, to wit;

Did the lower court err in law when it held that a Senior Advocate of Nigeria has no right of appearance in a Chief Magistrate Court in Lagos State.

Appellants reply brief filed on 25th April, 2023, was deemed properly filed on 15th January, 2024.

Before reviewing the submissions of respective counsel for the parties, it is apt to do a synopsis of the facts leading to the suit that birthed the instant appeal. The parties were couples who got married under the Shariah law sometimes in 2007. The marriage hit the rock and was eventually dissolved in 2011. However, there were two (2) issues from the relationship; a boy and a girl, both aged 6 and 8 years respectively, who, at the time of the resulting litigation, were in the custody of the appellant, albeit, by default.