The In(Justice) in the Gwandu Emirate Case

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

“We are final not because we are infallible; rather, we are infallible because we are final” – per Chukwudifu Akunne Oputa, JSC in Adegoke Motors Ltd & Anor v Adesanya & Anor (1989) LPELR-94(SC)

I had written about the Supreme Court Judgement in SC.266/2017 Governor of Kebbi State & 12 Ors v Alhaji Al Mustapha Jokolo & Anor delivered on June 4, 2025 (10/6/2025 “For Mustapha Jokolo, It’s Double Jeopardy”). However, then, I had admitted that I had not had the benefit of reading the judgement, only excerpts from the media; and I had then gone ahead to examine the role of a pre-action notice, and discuss if the non-service of same, even if it was required, should be fatal in this particular case. My answer then was No, and it still remains No. I have since read the judgements, and while I cannot examine all of it due to space constraints, I will consider the salient aspects, some of which led to the lead and dissenting judgements.

Lead Judgement: His Lordship, Agim, JSC

The lead Judgement in the aforementioned Gwandu Emirate case, was delivered by Emmanuel Akomaye Agim, JSC. As I had said before, it was a split decision, 3:2, and upon reading the first few lines of the lead judgement and that of the dissenting judgements of Uwani Abba Aji and Ibrahim Mohammed Musa Saulawa, JJSC, I couldn’t but align myself with the Dissenters. As for the majority judgement, my mind immediately put it within the context of the words of Oputa, JSC in Adegoke Motors Ltd & Anor v Adesanya & Anor (Supra), with regard to finality not because of infallibility. I respectfully disagree with the majority decision.

On Page 7 of Agim, JSC’s judgement, his Lordship stated thus: “Although I hold the view that it is absurd to require a pre-action complain(t) to the Governor that carried out the disputed deposition or appointment of a chief for review, and that there is nothing in Section 4(3) or like provisions that prescribe such a requirement, I am bound by the plethora of decisions of this court on the point in keeping with the principle of stare decisis, until this court departs from the prevailing case law established by its said decisions”. In the first place, the  facts of Alhaji Jokolo’s case differs from that of the authorities his Lordship relied upon, and he admitted same on Page 10 of his judgement. Why then must the same case law used for appointment tussles, be used for a case that is founded upon an opposite set of facts, that is, deposition of a Chief? 

It is trite that the principle of ’Stare Decisis’ can be set aside 1) where a previous decision may have been erroneous; or 2) where the law has changed since the previous decision; or 3) where following the previous decision leads to injustice. I respectfully submit that, in the Gwandu Emirate case, not only could one say it wasn’t on all fours with those previous decisions that it purported to follow, following those decisions instead of affirming the decisions of the lower courts, led to a decision which many consider to be irreconcilable with the facts of the case, and therefore, result in the aforementioned third option – injustice. 

His Lordship, Agim, JSC’s aforementioned statement, addressed my observation in my previous piece on this Gwandu Emirate case, that a pre-action notice wasn’t even required in this circumstance, not even because of my analysis, but because the law doesn’t require it. Was his Lordship’s view, that it is absurd to make a pre-action complaint to the same Governor that may have deposed you or improperly appointed a Chief, then not enough to set the stage to depart from the extant case law in this case, while his admission that nothing in Section 4(3) of the Kebbi State Chiefs (Appointment and Deposition) Law 1996 (KSCL) makes a pre-action notice a condition precedent before filing a suit to fight the deposition of an Emir, solid ground to make a distinction between this case of deposition and the previous ones cited which had to do with appointment? I submit that his Lordship should have distinguished this case of deposition from that of  appointment of a Chief, and decide the case accordingly. 

His Lordship, Agim, JSC also held that initiating an action for deposition of one Emir, necessarily means that it is must also include one that is a complaint against the appointment of a replacement Emir, if not the complaint against the deposition, even if it succeeds, would remain a sterile academic exercise, as that position of the replacement Emir would still remain valid if unchallenged (see Page 11-12 of the judgement). He therefore, held that Section 4(3) of the KSCL should be applicable to both deposition and appointment, and that a pre-action petition to the Governor concerning the deposition of the 19th Emir and appointment of the 20th Emir was required, before the case was instituted. I respectfully disagree with this position, because in my humble opinion, if the deposition of the 19th Emir is declared null and void, and invalid, it follows that the appointment of the 20th Emir cannot be valid. It is self-executory. 

Tying an imaginary rope between the deposition of a Chief and the appointment of a replacement, in order to force an already aggrieved deposed Chief to go and seek the permission of the Official who possibly breached the KSCL and acted maliciously/treated him unfairly in deposing him without due process, doesn’t appear to serve the interest of justice. Instead, it further skews equity, fairness and justice against the deposed Chief, making the road to seeking legal redress more convoluted. Surely, this couldn’t have been the aim of the framers of this law, and if it was, then a judicial review of the law may be required. 

Additionally, some of the cases cited by Agim, JSC, are not on all fours with Alhaji Mustapha Jokolo’s case. For instance, Agbodemu & Ors v Agboola & Ors (2025) LPELR-80531(SC) per Habeeb Adewale Olumuyiwa Abiru, JSC, had to do with selection and appointment of a Chief, and not deposition, and Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State in pari materia with Section 4(3) of the KSCL, refers to any dispute regarding selection. In the locus classicus, Madukolu & Ors v Nkemdilim (1962) LPELR-24023(SC) per Vahe Robert Bairamian, JSC, the Supreme Court held inter alia that a case must be initiated by due process of law, and upon the fulfilment of any conditions precedent to the exercise of jurisdiction. I submit that, even by Agim, JSC’s  own admission, there was no condition precedent in Section 4(3) of the KSCL that a pre-action complaint must be laid, before a case regarding the deposition of an Emir can be instituted. Similarly, other cases cited by his Lordship, Agim, JSC, such as Aribisala v Ogunyemi 2005 6 N.W.L.R. Part 921; Adesola v Abidoye & Anor (1999) LPELR-153(SC), were also cases based upon tussles about appointment/selection of Chiefs, and not deposition. 

In AC & Anor v INEC (2007) LPELR-66(SC) per Aloysius Iyorgyer Katsina-Alu, JSC, the Supreme Court held inter alia that, the provision of a statute must not be interpreted in isolation, but in context of the whole statute. Section 4(3) of the KSCL read as a whole provides only for any dispute related to selection and appointment of a Chief, not deposition. Interpreting Section 4(3) as relating to deposition or anything else, would be tantamount to interpreting the law in part and not as a whole, and/or stretching the interpretation of its clear and unambiguous words beyond the literal meaning. See the case of Awolowo v Shagari & Ors (1979) LPELR-653(SC) per Andrews Otutu Obaseki, JSC on the rules of interpretation of statutes, particularly using the literal rule of interpretation and taking words in their ordinary and grammatical meaning unless doing so would lead to a contradiction in the purpose of an Act, or an absurdity. I submit that the meaning and purport of Section 4(3) of the KSCL is clear and unambiguous – it only applies to pre-action protocol concerning tussles relating to the  selection and appointment of Chiefs. 

Dissenting Judgements: Their Lordships, Abba Aji and Saulawa, JJSC

In her dissenting judgement, Her Lordship, Abba Aji, JSC, held that Section 4(3) of the KSCL is inapplicable to Alhaji Jokolo’s case, as condition precedent is applicable “when a dispute arises between two candidates to the throne, that the aggrieved party who lost, must resort to the Governor as the only and final arbiter. It is when this condition is not followed, that the Plaintiff’s suit can be caught up with the issue of condition precedent. Since this is clearly not the case herein, the 1st and 3rd Cross- Appellants cannot import the provision of Section 4(3) of the Chiefs (Appointment and Deposition) Law of Kebbi State, 1996, to seek the nullity of the proceedings of the instant appeal. The condition precedent they seek does not avail them, nor applicable to their case” (see Page 15 of her Lordship’s judgement). Also see the case of First Registrars (Nig) Ltd v SEC & Anor (2022) LPELR-56667(CA) per Abubakar Sadiq Umar, JCA (as he then was) where the Court of Appeal held thus: “Therefore, where an enactment makes provision for the service of pre-action notice, such provision ought to be considered, to determine whether they apply to the suit in question”. I agree with Abba Aji, JSC, that it doesn’t apply in this suit. 

Again, in his dissenting judgement, His Lordship Saulawa, JSC,  held that Section 6 of the KSCL was what Alhaji Jokolo’s case was predicated upon, and not Section 4, which is inapplicable (see Page 24-25 of the judgement). That it wasn’t about a tussle between the 19th Emir of Gwandu, Alhaji Jokolo and the 20th Emir who was appointed after he was deposed, but about the fact that the Governor of Kebbi State didn’t follow the process laid out in Sections 6 & 7 of the KSCL before deposing Alhaji Jokolo, that is, setting up a Panel of Inquiry, consultation with Kingmakers, receiving advice from the Council of Chiefs, and giving Alhaji Jokolo a chance to defend himself, all prior to his deposition. It is no surprise therefore, that the Dissenting Justices were of the view that the Kebbi Governor didn’t come to equity with clean hands, as he himself hadn’t followed due process before deposing Alhaji Jokolo, and it was against the principles of natural justice for the same person who was responsible for the dispute, to have to be consulted or his permission sought, before initiating legal proceedings to seek redress for his alleged wrongdoing in the same matter. I concur.

Their Lordships, Abba Aji and Saulawa JJSC, also stated that Alhaji Jokolo’s right to fair hearing had been breached, as he had been deposed on 3/6/2005 without being given the opportunity to be heard (see Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria)(as amended)(the Constitution on the right to fair hearing). It was Alhaji Jokolo’s testimony that he was called to Government House to meet the Governor, and upon his arrival  he was forcibly taken by security agents to Obi, Nasarawa State (see Section 41(1) of the Constitution on freedom of movement), where, on television, he watched an announcement that he had been deposed. In Chief Joseph Oyeyemi v Commissioner for Local Government Kwara State & 3 Ors 1992 2 N.W.L.R. Part 226 Page 661 (cited by Saulawa, JSC), the Supreme Court held inter alia that a person adversely affected must be informed about the allegations against him, given a chance to respond, failing which any decision by any Panel of Inquiry without the person adversely affected being given a fair hearing, would be invalid. How come this precedent wasn’t followed by the majority, seeing as an alleged breach of fundamental rights was involved? How could the alleged breach of the provisions of the Sections 36(1) & 41(1) of the Constitution, the supreme grundnorm (see Section 1(1) & (3) of the Constitution on its bindingness and supremacy) have been ign ored, relegated and discountenanced for case law or an inferior State Law, Section 4(3) of the KSCL, which Agim, JSC himself had admitted didn’t provide for pre-action complaint for deposition of a chief?

Assuming, but not conceding that Alhaji Jokolo’s case was one that required a pre-action notice, the Appellants didn’t raise the issue of non-service at the court of first instance and the Court of Appeal. As his Lordship, Saulawa JSC rightly stated, it was raised at the ‘11th hour’ at the Supreme Court. To buttress his point, Saulawa, JSC cited the case of Daewoo Nigeria Ltd v Alamina & Anor (2022) LPELR-56588(SC) where he held thus: “Equity follows the law and it assists or aids the vigilant and not the indolent (not those who sleep) (Vigilantibus non dormientibus jura subveniunt)”. Having not included the non-service of a pre-action notice in their pleadings at the court of first instance, had they not already acquiesced to the non-service (if it was a requirement ), and then simply introduced it as a last ditch attempt at the Supreme Court?  See Madukolu & Ors v Nkemdilim (Supra) where the Supreme Court held thus: “It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case, the appeal court may not think fit to set aside the judgement. A defect in procedure, is not always fatal”. I submit that since one of the exceptions to the non-service of a pre-action notice being fatal to a case, is when it isn’t mentioned in the pleadings, and therefore, it is implied that it isn’t an issue. Once the trial court is competent to hear the case, had a pre-action notice been required in Alhaji Jokolo’s case, it’s non-service should have been treated as an irregularity, as it wasn’t so grave “as to affect the fairness of the trial and the soundness of the adjudication” – it wasn’t fatal.

Conclusion 

What I have observed is that, in Nigeria, because a good number of our institutions are somewhat weak, they are used as tools of persecution against individuals for one reason or the other. This not only goes against the rule of law, it is something that occurs in authoritarian countries where Government does whatever it pleases without accountability, not in a so-called democracy. In 2005, we were already six years into a democratic dispensation, yet, Alhaji Jokolo was deposed in a similar arbitrary manner to that of the 18th Sultan of Sokoto, Alhaji Ibrahim Dasuki, who was deposed in 1996 during the military regime of General Sani Abacha.