Appeal Court upholds El-Rufai’s right to fair hearing in suit against Kaduna Assembly

By Ayox Ojo

The Court of Appeal has upheld the right of Malam Nasir El-lrufai to fair hearing in the suit filed by the former governor against Kaduna State House of Assembly.

The Court also nullified the judgment of Justice R.M. Aikawa of the Federal High Court, Kaduna on the issue.

The court held that the failure of the Federal High Court, Kaduna, to serve El-Rufai with the hearing notice and the denial of his right to file a response to the counter affidavit of the respondents amounted to a denial of fair hearing.

The Court of Appeal therefore nullified the proceedings of 18th July 2024 and set aside the judgment of the Federal High Court delivered on 30 July 2024 for want of jurisdiction.

The Court of Appeal also ordered that the suit be remitted to the Federal High Court for reassignment to another judge who is to hear the case afresh.

El-Rufai had in 2024 filed a fundamental rights enforcement action against the Kaduna State House of Assembly over the denial of fair hearing in its investigations.

During the proceedings, the trial court adjourned the matter but later proceeded to hear it on 18th July 2024 without proper service of hearing notice on El-Rufai.

In his absence, the court granted the respondent’s application for extension of time, heard the substantive suit immediately, and denied El-Rufai the opportunity to respond to the counter-affidavit and written address of the respondents.

In a judgment on 30 July 2024, Justice R.M. Aikawa declined jurisdiction to entertain El-Rufai’s suit on the ground that the principal reliefs went beyond fundamental rights enforcement and instead challenged the powers of the Kaduna State House of Assembly. Consequently, the case was transferred to the Kaduna State High Court.

Dissatisfied with the decision, El-Rufai, through his lawyer AU Mustapha SAN, filed an appeal. He contended that the matter was heard during vacation without any application and that the trial judge refused to recuse himself despite a request to do so.

On the substantive appeal, the Court of Appeal adopted a sole issue for determination, namely:

“Whether the judgment/ruling of the Federal High Court delivered on 18 July 2024 was made without jurisdiction”.

In resolving this issue, the Court of Appeal considered two central questions. (i) Issue of Service and (ii) Failure to allow the Appellant to file a Further Affidavit.

On the issue of service of hearing notice, the Court held that the bailiff has a duty to serve hearing notice on parties and has no discretion to choose who to serve. It emphasized that only the contact details supplied by the parties in their processes are valid for service, and it is immaterial whether a party could have been reached through other means not provided.

The Court of Appeal further held that there was no affidavit of service evidencing that the Appellant was served with the hearing notice, and that the trial court ought to have satisfied itself as to proper service before proceeding.

The Court reiterated that service of hearing notice is fundamental to the court’s jurisdiction and cannot be treated as a mere technicality.

The failure to serve the Appellant with hearing notice for the proceedings of 18th July 2024 rendered the entire proceedings a nullity.

On the second issue, concerning the failure to allow the Appellant file a further affidavit and reply on points of law, the Court noted that the Respondent’s counter-affidavit was filed out of time and only regularised on 18th July 2024. By virtue of Order 2 Rule 7 of the Fundamental Rights (Enforcement Procedure) Rules, the Appellant was entitled, if he so desired, to file a further affidavit and reply on points of law within five (5) days from the date of such regularisation.

The Court held that the trial court had no discretion to deny the Appellant this opportunity.