MR. Ado Aguele V. His Lordship Bashir Abdullahi Sufi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The action leading to this appeal was commenced by way of Originating Summons dated the 18th June, 2009 by the Appellant praying the Lower Court for:

1. An Order of court declaring that the defendant ceases to hold office as the Chief Magistrate Court No: 2 Nomansland Kano, from the moment he swore the oath of office as Chief Registrar of Kano State.
2. An Order of the Honourable Court directing that the above order/relief takes effect once the question contained in the Originating Summons are determined in the negative.

He presented the following questions for the determination of the Lower Court thus:

The trial Court after conducting hearing in the suit and considered the addresses of Counsel, delivered its judgment dismissing the suit. Upon the Appellant’s displeasure with the judgment, he filed a Notice of Appeal dated. Following the appeal, and, in compliance with the Rules of this Court, the parties filed their Briefs of Argument.

In the Appellant’s Brief of Argument, learned Counsel for the Appellant, Okechukwu Nwaeze Esq., distilled only one issue for determination thus:

“Whether the Respondent who is the Chief Registrar of the High Court of Justice of Kano State, could function as a Chief Registrar and as well continue to perform the judicial function as a Chief Magistrate and if not what is the consequences of proceeding conducted after his election to the office of the Chief Registrar of High Court of Justice Kano.”

Learned Counsel for the Respondent Mukhtar Sani Daneji Esq adopted the issue formulated by the Appellant.

Learned Counsel for the Appellant, reproduced the provisions of section 4 (1) of the Judicial Services Commission Act published in Kano State No: 11 of 1980 which commenced on 1/8/1980 which empowered the Commission to appoint, dismiss and exercise disciplinary control over the Chief Registrar of the High Court, Chief Registrar of the Sharia Court of Appeal, Magistrates, Judges and members of the Area Court.

He further referred to section 110(1) and (2) which specified the functions of a Chief Registrar; the High Court Laws of Kano State Cap 57 Laws of Kano State 1991; Order 49 Rule 1 (1) Order 49, Rule 41 (7) & (8), Order 49 Rule 44, Order 50 Rule 7 e.t.c., and submitted that there is no Special Order of the Chief Judge of Kano State directing the Respondent to occupy a judicial office as a Chief Magistrate.

He further cited Section 4(1) and 8(2) of the Magistrate Court Law (Cap. 89) Laws of Kano State which established the offices of Chief Magistrates, Senior Magistrates and Magistrates and duties of a Chief Magistrate, and further submitted that the provisions did not by any implication or expressly suggest the occupation of the office of a Chief Registrar and a Chief Magistrate by one and the same person as occupied by the Respondent. He implored the Court to apply the appropriate rule of interpretation in constructing the applicable laws.

On the rules of interpretation, learned Counsel drew the attention of this Court to the cases of Attorney General of the Federation & 3 ors vs. Alh. Atiku Abubakar & 3 Ors (2007) All FWLR Part 375 page 405 at page 460 paragraphs F-H; F. C. Udoh & 2 ors vs. Orthopaedic Hospitals Management Board (1993) 7 NWLR Part 304 page 139 at 149 paragraphs F-H; Chief Sergeant Awuse vs. Dr. Peter Odili & 3 Ors 9 (2004) ALL FWLR Part 212 page 3 Ors 1664 paragraphs A-C; A. G. Bendel State & 2 Ors V. P. L. A Aideyan (1989) 4 NWLR Part 118 page 646 at 671 paragraph B and Ogbuniyya vs. Okudo (2001) FWLR Part 72 page 1987 at 2007 paragraphs F-D.

He submitted that the duties of the Chief Registrar and Chief Magistrates were respectively spelt out. He contended that the Respondent who was a Chief Magistrate and had been elevated to the office of the Chief Registrar of the State cannot and should not be allowed to continue to sit and adjudicate over judicial proceedings, and, any proceeding conducted in like manner, should be declared null and void. He then urged that the appeal be allowed.

In response, the Respondent via his learned Counsel, Mukhtar Sani Daneji Esq., Director Civil Litigation, Ministry of Justice, Kano State, submitted that the Magistrates Court Law (Cap 89) Laws of Kano State 1991 allows Chief Magistrate grade 1 to ensure even distribution of work among Magistrates therefore, the Chief Registrar as a Chief Magistrate Grade 1 and most Senior in ranking among all the Magistrates is qualified to assign cases as he has satisfied the requirements of law more particularly S.8(2), referred to by the Appellant. It was contended that nothing precludes the Chief Registrar from acting as Magistrate, and as a result the learned trial Court was right when it found that there is no where the laws cited prohibit a Chief Magistrate or any Magistrate because he has been appointed as a chief Registrar to perform his substantive duty as a judicial officer.

Learned Counsel argued that the issue of special order was not clearly raised by the Appellant at the trial Court and so the Appellant cannot at this stage raise it, because parties are bound by their pleadings.