CASE SUMMARY OF:
Hon. Alhaji Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor (2002) - CA
by NSA PaulPipAr
- Discountenance of suit;
Hon. Alhaji Abdullahi Maccido Ahmad
1. Sokoto State House of Assembly
2. Attorney-General Of Sokoto State
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Isa Ayo Salami, J.C.A.
* FOR THE APPELLANT
- A. Bello, Esq.
* FOR THE RESPONDENT
- O. Uwadiae, Esq.
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FACT (as relating to the issues)
The Applicant (herein Appellant) applied to the High Court at Sokoto for leave to enforce his fundamental rights.
The relief sought by the appellant’s ex parte motion, in the trial court, reads as follows:-
(a) An order granting leave to the applicant to apply to this Honourable Court for enforcement of his rights to due process and fair hearing in the determination of the petition pending before the 1st respondent as guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
(b) An interim order of stay or injunction restraining the respondents from continuing with the proceedings or further consideration of the allegations in the petition dated 17th July, 2000 titled PETITION AGAINST THE HONOURABLE GRAND KADI OF SOKOTO STATE FOR HIS POOR HANDLING OF THE IMPLEMENTATION OF THE SHARIAH pending the determination of the motion on notice subject to leave being granted.
At the end of the proceeding at the High Court, the learned Judge struck out the Application.
The Appellant has appealed before this Court of Appeal, and has raised the issues herein below.
1. Whether or not the High Court of Sokoto State has jurisdiction to hear and determine the appellant’s application for enforcement of the right to fair hearing against the respondents in this case.
2. Whether in all the circumstances of this case, the reliance by the learned Chief Judge on the letter dated 11/6/2000, written by the Attorney-General of Sokoto State as basis for holding that a similar action was pending and disregard of the notice of discontinuance, dated 11th August, 2000, filed by the appellant is proper.
3. Whether the learned Chief Judge properly exercised her discretion in striking out the application of the appellant.
HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED; Having found the two issues 1 and 2 formulated in appellant’s brief in his favour, it is no longer necessary to consider his issue 3. The appeal succeeds and it is allowed. The application for leave to enforce the appellant’s right to fair hearing is remitted to the trial court to be heard ex parte, on the merit, by a Judge of Sokoto State High Court of Justice, other than the Chief Judge. The appellant is entitled to the costs of this appeal, which is assessed at N5,000]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The dictum in Garba’s case relied upon by the learned Chief Judge is no authority for the proposition that the learned trial Judge would be a Judge in her own case. The facts or the circumstances surrounding Garba’s case and those of the instant action are different. The body whose conduct came for scrutiny in Garba’s case, is the one that set up the tribunal to investigate the matter hence, the caution by the Supreme Court that Nemo judex in causa sua, meaning that the University of Maiduguri, could not set up a body to investigate a dispute in which it was an interested party. But in the instant case, the organs of government whose conducts were in issue are the executive and legislative arms of Government and whose duty includes removal of a Grand Khadi. The judiciary is therefore, not a party to the suit except probably one of its members is a victim. It is equally vested with power to do exactly what she was invited to by the Constitution unlike University of Maiduguri, which has no statutory power to do what it did.
ii. Clearly, the two reliefs set out in the [ex parte motion] apparently do not offend in any manner the provisions of Section 6(6)(c) and (d) of the Constitution which tend to limit the extent of the judicial powers of the State. His suit is within the contemplation of Section 6(2) and (6)(a) and (b) of the 1999 Constitution, being an action for determination of the appellant’s civil rights and obligation between him as a person and the government or authority of Sokoto State. The learned trial Chief Judge therefore, quibbled when she declined to entertain the suit on some mundane excuses: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, 751, cited in the appellant’s brief. The trial court’s jurisdiction to entertain appellant’s suit is therefore not ousted on the ground of nemo judex in causa sua.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The only issue before the learned trial Chief Judge was an application by the appellant for leave, to apply to the Court to enforce the appellant’s fundamental right to fair hearing, which was not and should not be on notice by virtue of the provisions of Order 1 rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62 LFN. The application indeed, was clearly marked or headed ex parte, which means that it ought to be heard in the absence of the respondents thereto. It necessarily, follows that the respondents named in the application have no right of audience either directly or surreptitiously. The learned trial judge wrongly scrounged for extraneous material, which in the instant appeal, the State Attorney General smuggled to her and which she heavily relied upon. In the circumstance, she held brief for the respondents and used material or evidence she received improperly from the respondents to defeat the appellant’s case. A court is to rely on the evidence before it and not on extraneous matter.
S. 6(2)(6), 36(1), 46(1)(2)
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The Constitution should be given liberal and literal construction and interpreted as a whole with a view of giving effect to all its provisions and not restrictively so as to frustrate or render otiose some of its provisions. - Ayo Salami, JCA. Ahmad v. Sokoto SHA
Generally, an appellate court will not interfere in the exercise of the discretion of the court of trial in matters within the exercise of its discretion as in the present case, the exercise of discretion in granting leave to apply for the enforcement of Fundamental Rights, is a matter within the discretion of the lower court. See University of Lagos & Anor. v. Aigoro (1985) 1 NWLR (Pt. 1) 143. However, where it is established on appeal that the trial Judge had acted under a mistake of law, or in complete disregard of principles, or was under a misapprehension of facts, or had taken irrelevant factors into consideration as happened in the present case, the appellate court will interfere with the decision to set it aside. - Ayo Salami, JCA. Ahmad v. Sokoto SHA
The doctrine of separation of powers has three implications:- (a) that the same person should not be part of more than one of these three arms or divisions of government. (b) that one branch should not dominate or control another arm. This is particularly important in the relationship between executive and the Courts. (c) that one branch should not attempt to exercise the function of the other, for example a President however, powerful ought not to make laws indeed act except in execution of laws made by legislature. Nor should a legislature make interpretative legislation if it is in doubt it should head for the Court to seek interpretation. - Ayo Salami, JCA. Ahmad v. Sokoto SHA
Ouster of jurisdiction of a court does not preclude it from examining the ouster clause itself and to determine whether or not the act carried out under it is within the contemplation of the authority conferred by the enabling legislation. - Ayo Salami, JCA. Ahmad v. Sokoto SHA
The enforcement of the right guaranteed under Chapter IV is beyond any argument and are without exception or qualification for all persons. The sections undoubtedly give access to Court for enforcement of the rights guaranteed under Chapter IV of the Constitution to all manner of people, without exception, who claim their rights have been trampled upon; just as Section 6(6) gives access to Court for enforcement and determination of all civil rights and obligation including right guaranteed under Chapter IV of the Constitution. I am encouraged in this view by article ‘a’ or “any” qualifying the word person wherever they occur. The view that the action could be brought in the High Court and the Court is under obligation to entertain and determine same is encouraged by the phrases “by or against any government or authority” in Section 36(1) and “between Government or authority and any person in Nigeria” in Section 6(6)(b) of the Constitution. - Ayo Salami, JCA. Ahmad v. Sokoto SHA
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