MR. ADO AGUELE v. HIS LORDSHIP BASHIR ABDULLAHI SUFI
(2014)LCN/7221(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/K/171/2010
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
MR. ADO AGUELE Appellant(s)
AND
HIS LORDSHIP BASHIR ABDULLAHI SUFI Respondent(s)
RATIO
WHETHER OR NOT THERE IS A LAW PROHIBITING THE CHIEF REGISTRAR OF THE STATE HIGH COURT APPOINTED FROM THE MAGISTRACRY FROM CONTINUING TO SIT IN COURT AS A CHIEF MAGISTRATE
It need be further stressed that even though there is Law regulating the duties of a Chief Registrar, there seem not to be any Law, as I observed earlier, prohibiting the Chief Registrar of the State High Court appointed from the Magistracy from continuing to sit in Court as a Chief Magistrate, the position he has not been stripped of. There is no Law suggesting that being appointed a Chief Registrar would erode the powers of a Chief Magistrate to sit as such. ORJI-ABADUA, J.C.A.
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.
He stressed that the Appellant merely stated that it is not in the interest of Justice for the defendant to hold the office of the Chief Registrar and that of Chief Magistrate together.
He totally failed to show how the interest of justice could be affected. He further emphasized that reliance on the maxim “expression unius est exclusion” cannot help the Appellant’s case since the two Laws are distinct and for meaningful interpretation have to be read together and not in isolation.
Learned Counsel further contended that the cases relied upon by the Appellant are distinguishable from the instant matter in that the former deals with a situation where the judges exercised two judicial functions at a time. He stated that in Ogbuniya vs. Okudo FWLR Part 72 page 1987 at 2004-2007 paragraphs F-D; Justice Nnameka Agu was a Judge of High Court of Anambra State and was then appointed a Justice of the Court of Appeal with effect from 15th day of June, 1997 but on the 17th day of June, 1977, he delivered a judgment in a case where the claim was for trespass and declaration of title.
The Supreme Court held that the judgment delivered at the High Court after his appointment as a Justice of Court of Appeal was made without jurisdiction. Then in Sodeinde vs. State Suit No- FCA1B/20/77, it was held that judgment delivered by the Chief Judge of Oyo State after he had been transferred to Ondo State was a nullity.
He submitted that the position of a Chief Registrar is not judicial as portrayed by the Appellant. He referred to Part IV Section 318 of the 1999 Constitution where Judicial Office and a Judicial Officer have been defined as follows:
“Judicial Office means the office of the Chief Judge of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the Office of the Chief Judge or a Judge of the Federal High Court, the office of the Chief Judge or a Judge of the Federal Capital Territory, Abuja, the Office or the Chief Judge of a State and Judge of the High Court of a State, a Grand Khadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory Abuja, a president or a judge of Customary Court of Appeal of the Federal Capital Territory, Abuja a Grand Khadi or Khadi of the Sharia Court of Appeal of a State, or President or a Judge of the Customary Court of Appeal of a State, and; reference to a “Judicial Officer” is a reference to the holder of any such office; it is therefore vividly clear from the above that the Respondent as a Chief Registrar is neither a judicial officer nor occupying a judicial office.”
Learned Counsel then urged that this appeal be dismissed.
It is patently obvious that by Section 4 of the Judicial Services Commission Act published in Kano State No. 11 of 1980 contained in Cap 67 Laws of Kano State, 1991, referred to by Learned Counsel for the Appellant, the office of the Chief Registrar of the High Court of Kano State is distinct from the office of Magistrates. The Chief Registrar of the High Court of Kano State is the Head of Administration, the Chief Accounting Officer of the Court and heads the Court Support Staff. However, I must observe the inability of this Court to encounter any law permitting a Chief Registrar of a State High Court appointed from the Magistrate or any Chief Registrar to sit as a Chief Magistrate in the Chief Magistrates Court of the State or any law prohibiting a Chief Registrar of the State High Court appointed the Magistrate of the State from sitting in the Chief Magistrates Court of that State to entertain and determine any case arising from the Magisterial District of the State.
By the High Court Laws of Kano State referenced by the Appellant’s Counsel, Section 110(1) and (2), the Chief Registrar and other officers mentioned therein shall perform such duties in execution of the power and authorities of the Court as may from time to time be assigned to them by the Rules of the Court or subject thereto to any special order of the Chief Judge.
Sub-section 2 clearly stipulates that the office of the Probate Registrar of the High Court shall be filled by the Chief Registrar unless and until some other person shall be appointed. As strongly asserted by the Appellant’s Counsel, the duties of the Chief Registrar are the duties assigned to them by the Rules of the Court, or any special order of the Chief Judge and acting as the Probate Registrar until the appointment of any person to the office. He also reproduced the offices of the Magistrates established by the Magistrates Court Law of Kano State, 1991. He further argued that the office of the Chief Registrar is now regulated by the High Court Laws but not Chief Magistrates Court Laws.
It need be further stressed that even though there is Law regulating the duties of a Chief Registrar, there seem not to be any Law, as I observed earlier, prohibiting the Chief Registrar of the State High Court appointed from the Magistracy from continuing to sit in Court as a Chief Magistrate, the position he has not been stripped of. There is no Law suggesting that being appointed a Chief Registrar would erode the powers of a Chief Magistrate to sit as such.
It must be emphasized that an action can only be declared as being illegal where there is a law in place prohibiting its commission.
As a Chief Magistrate, he still remains a Chief Magistrate and none of his powers as a Chief Magistrate were extinguished by his appointment as a Chief Registrar. He is still a Chief Magistrate heading the administration in the High Court and from there he may be elevated to the Higher Bench. It is also necessary to observe that in this era of submission of copies of the judgments one had delivered as a Magistrate before he would ever be considered for appointment as a Judge of the High Court, one then wonders how that requirement can be met by the Respondent if, having not been robbed of his powers as a Chief Magistrate by any law, he continually fails to sit as such? From where would he obtain proof of his diligence and assiduity? Since this Court has not been furnished with any Law of Kano State precluding the Respondent from continually sitting as a Chief Magistrate, the Respondent’s action of sitting to help in decongesting the Courts cannot be declared a nullity or illegal. One may say it is deplorable, thoroughly reprehensible not nice, but it is not breaking the law or illegal. No law was perceived as having been violated. I am afraid, the learned trial Judge seem to me right in his interpretation of the two Laws relied upon by the Appellant. The truth is, there is no clearer law prohibiting him from performing his duties as a Chief Magistrate since he is the one still equipped with the power or duties of assigning cases to the Magistrates for adjudication.
I may say in passing that common sense may dictate that he should concentrate on his administrative duties but since there is no law restricting him from sitting as a Chief Magistrate, it would amount to begging the Law to do otherwise. I therefore, see no merit in this appeal and the same is hereby dismissed.
ABDU ABOKI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother Theresa Ngolika Orji-Abadua, J.C.A. I agree with her reasons and conclusion reached therein that the appeal has no merit. I too see no merit in this appeal.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, J.C.A. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions in the lead judgment.
Appearances
Okechukwu Nwaeze Esq.For Appellant
AND
Mukhtar Sani Daneji Esq.For Respondent
