Legal Status of an Entity Created Under a Repealed Law

0

Facts

The 1st Respondent was in 1990, conferred with the title of Sarkin Dawaki Mai Tuta of Kano and also appointed District Head of Gabasawa in Kano State by the late Emir of Kano, Alhaji (Dr) Ado Bayero. The appointment was approved by the Kano State Government, and the 1st Respondent was being paid salaries.

Sometime in December 2003, the late Emir, Alhaji (Dr) Ado Bayero stripped the 1st Respondent of his title and office of Sarkin Dawaki Mai Tuta and District Head of Gabasawa. Consequently, the 1st Respondent filed an action at the High Court of Kano State to challenge his removal. The trial court delivered its judgement in which it held that the 1st Respondent’s appointment had statutory flavour, and that the late Emir of Kano and the 2nd Appellant did not have a valid and justifiable capacity to remove the 1st Respondent from office without availing him the opportunity to be heard. The Appellants filed an appeal against the decision of the trial court at the Court of Appeal, which court upheld the judgement of the trial court. The Appellants further appealed to the Supreme Court.

Issues for Determination

The following issues formulated by the Appellants were utilised by the Apex Court in its determination of the appeal –

1. Whether the Court of Appeal was right in holding that the Kano Emirate Council is a juristic persona with statutory authority.

2. Whether the Court of Appeal was right in affirming the decision of the trial Court that the 1st Respondent was appointed by the Kano State Government; hence, he was an employee of the Kano State Government and his appointment enjoyed statutory flavour.

3. Whether the 1st Respondent was given fair hearing, and his removal was in accordance with the customs and traditions of the Kano Emirate.

Arguments

On the first issue, counsel for the Appellants argued that the Kano Emirate Council was created by the Kano State Local Government Law 1991, which had been repealed by the Kano State Local Government Law 2000; hence, the Kano Emirate Council ceased to exist upon the repeal of the law that created it. He submitted that the Court of Appeal was wrong in holding that the Kano Emirate Council is a statutory authority set up by law, and authorised to enforce legislation on behalf of Kano State.

On the second issue, it was argued for the Appellants that the 1st Respondent was appointed by the Emir of Kano and removed by the same Emir, in accordance with native law and custom. He contended that the Emir is the custodian of Kano native law and custom, and the Court of Appeal was wrong to hold that the 1st Respondent was appointed by the Kano State Government.

Regarding the third issue, counsel for the Appellants argued that the title of Sarkin Dawaki Mai Tuta was a privilege without civil rights and obligations to compel fair hearing, and the 1st Respondent’s removal by the same Emir who appointed him was in accordance with the customs and traditions of the Kano Emirate. He cited VICTION FIXED ODDS LTD v OJO (2010) 8 NWLR (Pt. 1197) 486.

In reaction to the arguments of counsel for the Appellants on the first issue, counsel for the 1st to 9th Respondent argued that the 2nd Appellant is a creation of statute and assuming without conceding that the law which created the Kano State Emirate Council had been repealed, the repeal would not affect any right legitimately created during the existence of the said law. The Attorney-General of Kano State as 10th Respondent argued similarly that, any such repeal of the law would have no impact on the appointment and removal of the 1st Respondent. He referred to Section 6(1)(b) and (c) of the Interpretation Act, Cap 123, LFN 2004 and H. C. OKAFOR v UTOMI OLIANWA & ANOR (1964) ALL NR 343 at 345.

On the 2nd issue, counsel contended on behalf of the 1st to 9th Respondent that the Appellants’ silence on the established fact that the 1st Respondent’s appointment was approved by the Kano State Government, amounts to an admission that he was appointed by the Kano State Government. The 10th Respondent also argued that the 1st Respondent, having been so appointed, was a salaried employee of the Kano State Government and should not have been removed from office without first complying with the proper procedure laid down in the Kano State Civil Service Rules.

Arguing the third issue, counsel for the Respondents submitted that the tenets of fair hearing must be complied with before the Appellants could purport to validly remove the 1st Respondent from office, assuming without conceding that they even have such powers to remove him. the 10th Respondent argued that as a salaried staff of the Kano Emirate Council, the 1st Respondent should not have been summarily dismissed from office without first complying with the proper procedure and laid down rules. He submitted that the Court of Appeal was right in affirming the decision of the trial court, that the dismissal by the Appellants was null and void in the face of lack of fair hearing.

Court’s Judgement and Rationale

Deciding the first issue, the Supreme Court relied on its decision in FAWEHINMI v NBA (NO. 2) (1989) 2 NWLR (Pt. 105) 558 to hold that an association of persons without incorporation cannot be regarded as a legal person for the purposes of actions in court, thus, it is imperative that a Plaintiff who sues a non natural person as juristic persona must establish the juristic personality. The Court further held that the effect of repeal is that the repealed law ceases to be an existing law, and is thus, treated as revoked or abrogated and removed from the statute book, and based on the principle of cause and effect, when a repealing law changes the course it follows, the change of its effect is also intended – ROTIMI WILLIAMS AKINTOKUN v LPDC (2014) LPELR – 22941 (SC).

The Court held that it was not in doubt that the Kano State Local Government Law, 1991 which the Kano State Emirate Council owed its establishment and empowerment to, had been repealed by the Kano State Local Government Law, 2000, three years before the cause of action arose in favour of the 1st Respondent upon his removal. It follows therefore, that upon the repeal of the Kano State Local Government Law 1991 by the Kano State Local Government Law 2000; the Kano State Emirate Council, established and empowered by the 1991 Local Government Law, no longer shall continue and/or had ceased to enjoy the juristic personality and status vested in it by the 1991 Local Government Law.

On the 2nd issue, the Supreme Court held that under the custom and tradition of Kano Emirate, the title of Sarkin Dawaki is a hereditary traditional title within the prerogative of the Emir of Kano to bestow. Such title or office does not exist in either the Local Government Service or the State Civil Service Commission, and neither of these is the appointing authority or the authority empowered by law to bestow the title. The court held that the mere fact that the 1st Respondent received stipends from the State Government by way of salaries did not make him a civil servant. The tone and wordings of Exhibit B, the goodwill and congratulatory letter written by the Kano State Governor to the 1st Respondent, left no doubt as to whom the appointee was as it was expressly stated therein that the Emir was the appointing authority.

On the 3rd issue, the court restated the position of law on insubordination by a servant. Relying on the decision in TELIAT SULE v NIGERIAN COTTON BOARD (1985) 2 NWLR (Pt. 5) 17, their Lordships held that when a servant grows too big to obey his master, the honourable cause open to him is to resign to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant high or low, big or small, and such conduct normally and usually attracts the penalty of summary dismissal.

Regarding the issue of denial of fair hearing, the court held that it is not in contention that a person’s right of fair hearing is a natural and fundamental right which must be adhered to when a complaint is levelled against anyone; however, when the opportunity is granted to the person and he fails to make use of that opportunity to defend himself or address the concerns raised, then he has no one but himself to complain against.

There was evidence that the 1st Respondent disobeyed a summons from the Emir’s Palace, inviting him to appear before the Palace. By his refusal to see the Emir, which itself was an established act of insubordination, the 1st Respondent is deemed to have waived his right to be heard and cannot complain since it was his choice to ignore the opportunity of being heard – BILL CONSTRUCTION CO. LTD v IMANI & SONS LTD. (2006) 19 NWLR (Pt. 1013) 1 at 14.

Their Lordships held further that the 1st Respondent’s appointment as Sarkin Dawaki Mai Tuta was made by the Emir of Kano under the native law and custom of the Kano Emirate and he held the position at the pleasure of the Emir, subject to good behaviour. It follows that upon the established insubordination of the 1st Respondent to his appointor, his summary removal by the Emir which was done in accordance with the customs and traditions of the Kano Emirate, was justified.

Appeal Allowed.

Representation

P. Hussaini Hussaini with another, for the Appellant.

Offiong Offiong, SAN and Ors. for the 1st – 9th Respondent.

Ibrahim Mukhtar Esq. A-G. Kano State and Ors. for the 10th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)