Kano State House Of Assembly & Ors v. Alhaji Aminu Babba Dan Agundi (Sarkin Dawaki Babba) & Ors (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GABRIEL OMONIYI KOLAWOLE, JCA (Delivering the leading judgment)

On 23rd May 2024, the Kano State House of Assembly, the 1st appellant, enacted the Kano State Emirate Council (Repeal) Law, 2024 (1445 AH).

This law repealed the extant Kano State Emirate Council Law, 2019 (1441 AH), and it was subsequently assented to by the Governor of Kano State on the same day, thereby becoming a valid and subsisting law of Kano State.

Aggrieved by the enactment of the repealing law, the 1st respondent filed an application on the same date before the Federal High Court, Kano Division, invoking the enforcement of his fundamental rights under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

The 1st respondent as the applicant, sought for the following reliefs in the originating application:

1. A declaration of this honourable court that by virtue of the provisions of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the legislative powers of the 2nd defendant, the legislative arm of Government of the 1st defendant, which is headed by the 3rd defendant, does not extend to enacting “Targeted Legislations”.
2. A declaration of this honourable court that by virtue of the provisions of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the legislative powers of the 2nd defendant, the legislative arm of Government of the 1st defendant, which is headed by the 3rd defendant does not extend to enacting and amending existing laws without the involvement of offices and institutions created by existing laws.
3. A declaration of this honourable court that the amendment of the provisions of the Kano State Emirate Council Law, 2019 (1441 .H.), by the Kano State Emirate Council (Repeal) Law, 2019 (1445 ..), without the involvement of offices and institutions with vested interest including the plaintiff, who holds office created pursuant to the provisions of the Kano State Emirate Council Law, 2019 (1445 A.H.), is in breach of the legislative powers of the plaintiff as provided by section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and hence, unconstitutional, unlawful, illegal, invalid, null and void ab initio.
4. A declaration of this honourable court that by virtue of the provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the passing into law of the Kano State Emirate Council (Repeal) Law, 2024 (1445 A.H.), without the involvement of the persons occupying offices as well as institutions with vested interest, in the legislative process is against the purport and intent of the provisions of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. A declaration of this honourable court that the provisions of the Kano State Emirate Council Law, 2019 (1441 ..) subsists and remains in force till date.
6. A declaration of this honourable court that all offices and institutions created pursuant to the provisions of the Kano State Emirate Council Law, subsists and remains valid.
7. A declaration of this honourable court that by virtue of the provisions of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the legislative has no powers of the 2nd defendant to enact ex post facto law.
8. An order of perpetual injunction of this honourable court restraining the defendants, whether by themselves, their officers, servants, agents, privies, cronies or representatives by whatever name known or called, from disregarding the provisions of the Kano State Emirate Council Law, 2019 (1441 A.H.), the office and institutions created therein.
9. An order of perpetual injunction of this honourable court restraining the defendants, whether by themselves, their officers, servants, agents, privies, cronies of representatives by whatever name known or called, from giving effect to, enforcing, executing and implementing the provisions of Kano State Emirate Council (Repeal) Law, 2024 (1445 ..), as they affect all the office and institutions created pursuant to the provisions of the Kano State Emirate Council Law, 2019 (1441 ..).
10. An order of perpetual injunction of this honourable court restraining the 5th – 8th defendants, whether by themselves, their officers, servants, agents, privies, cronies or representatives by whatever name known or called, from giving effect and implementing the Kano State Emirs Council (Repeal) Law, 2024 (1445 ..), as they affect all the office and institutions created pursuant to the provisions of the Kano State Emirate Council Law.

During what appeared as a virtual proceeding conducted on 23rd May, 2024, the learned trial Judge raised the issue of jurisdiction of his court suo motu and directed the parties to address it at the subsequent hearing fixed for 3rd June, 2024. Furthermore, the court ordered parties to maintain status quo ante the passage and assent of the Kano State Emirate Council (Repeal) Bill, 2024 into law, pending the hearing and determination of the substantive fundamental rights application. Meanwhile, during the proceedings of the trial court on 6th June, 2024, counsel for the parties extensively canvassed arguments for and against the trial courts jurisdiction to entertain the 1st respondents suit. On 13th June 2024, the trial court delivered its ruling, holding that it possessed the jurisdiction to entertain the 1st respondents claims. The lower court further resolved to immediately proceed with the substantive matter. Moreover, on the backdrop of the publication of the appointment of Mallam Sanusi Lamido Sanusi as the 16th Emir of Kano Emirate by the Governor of Kano State on 23rd May, 2024 contrary to the status quo order of the court, the 1st respondent as applicant by a motion on notice dated 31st May, 2024, found at pages 123 139 of volume i of the record of appeal, sought for the following prayers:

1. An order of this honourable court declaring null and void the conduct of the 2nd and 3rd defendants in passing into the law, the Kano State Emirate Council (Repeal) Law 2024, in violation of the order of this honourable court.
2. An order of this honourable court setting aside the Kano State Emirate Council (Repeal) Law passed by the 2nd and 3rd defendants in violation of the order of this honourable court made on the 23rd day of May, 2024.
3. An order of this honourable court declaring null and void the appointment of Mallam Sanusi Lamido Sanusi as the 16th Emir of Kano State Emirate by the 1st and 4th defendants pursuant to the provision of the Kano State Emirate Council (Repeal) Law, 2024 in contravention of the order of this court made on the 23rd day of May, 2024.
4. An order settling aside the appointment of Mallam Sanusi Lamido Sanusi as the 16th Emir of Kano Emirate by the 1st and 4th defendants pursuant to the provision of the Kano State Emirate Council (Repeal) Law, 2024 despite being aware of the Interim Inauguration given by this honourable court restraining same.
5. And for such further order or other orders as the honourable court may deem fit to make in the circumstances.

The application was vehemently contested and opposed by the appellants and the 2nd and 3rd respondents, who filed their respective counter-affidavit and written addresses. In a considered ruling delivered on 20th June, 2024, contained in pages 581 602 of volume II of the record of appeal, the court ordered that every step by the defendants in pursuance to (sic) the Kano State Emirate Law are hereby annulled and set aside.

Dissatisfied with the ruling, the appellants initiated the present appeal by filing a notice of appeal dated 21st June, 2024 and raised therein eight (8) grounds of appeal, found at pages 652 661 of Volume II of the record of appeal. In accordance with the rules and settled practice and procedure in this court, the record of appeal was duly compiled, transmitted and the appeal entered before parties filed and exchanged their respective briefs of argument.

Ibrahim Isa Wangida, Esq., signed the appellants brief of argument dated and filed on 15th July, 2024 but deemed on 14th August, 2024 wherein the following four issues were distilled for the determination of the appeal:

1. Whether the hon. court, having given its order ex parte was right to have entertained the application being an alleged contempt ex-facie which by law and judicial decisions ought to be taken by another Judge of the court? (Ground 1 of the notice of appeal)
2. Whether the learned trial Judge was right when the hon. court held that the appellants and the 2nd and 3rd respondents were in wilful disobedience of the ex parte order of court when the record of the court attests to the fact that the Bailiff of the court served the enrolled order of the court signed on 23/05/2024 only on the 4th defendant (Now 3rd respondent) on the 27th day of May, 2024 alone without any order of substituted service on other respondents and thereby violated the laid down principle of lis pendis and this occasioned a grave miscarriage of justice? (Grounds 3 and 7 of the notice of appeal)
3. Whether the trial Judge was right in making orders which affected and bothered on the right of Malam Sanusi Lamido Sanusi, who was not a party to the suit neither was he given a right of fair hearing as guaranteed under section 36 of the 1999 Nigeria Constitution? (Ground 5 of the notice of appeal)
4. Whether the hon. court did not abdicate its judicial functions/responsibility consequently breaching the right of the appellants to fair hearing when the hon. court admitted in evidence a flash drive containing what was purported to be a recorded oral statement of the Governor of Kano state and proceeding to listen to same in-chambers without affording the parties the privilege of knowing or listening to the evidence admitted and relied upon in nullifying their actions? (Ground 6 of the notice of appeal).

C. F. Odiniru, Esq., filed undated brief of argument on 12th August, 2024 on behalf of the 1st Respondent. The said brief of argument was deemed properly filed on 14th August, 2024, wherein a sole issue was formulated for the determination of the present appeal, thus:

Whether the lower court was right in granting the 1st respondents application as constituted?

Separately, the 1st respondent filed a notice of preliminary objection dated 12th August, 2024, seeking an order of this honourable court dismissing the appeal in limine for want of jurisdiction.

The grounds of the objection as contained on the face of the notice are reproduced below:

1. That the right of appeal to this honourable court donated by the provision of sections 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is not at large but only inures in favour of any party whose right and interest is directly affected by or interested in any decision appealed against.
2. That none of the 8 grounds of appeal contained in the appellants/respondents’ notice of appeal discloses any appealable grievance or interest inuring in their favour to donate them the right of appeal to seek redress for.
3. That the lower court did not make any finding or nor granted any relief affecting the rights and interest of the appellants/respondents to warrant the present appeal.
4. That the order made by the lower court that every step taken by the defendants in pursuance to the Kano State Emirate Council (Repeal) Law 2024 be annulled and set aside were steps taken by the 2nd and 3rd respondents and not the appellants/ respondents.
5. That the decision of the lower court complained of refused the orders sought by the 1st respondent/applicant extending to the validity of the Kano State Emirate Council (Repeal) Law 2024 enacted by the appellants/respondents.

The notice of preliminary objection is supported by an affidavit of 15-paragraph, deposed to by the 1st respondent. Arguments in respect of the objection are incorporated into the 1st respondents brief of argument. A sole issue for the determination of the objection is set out below: