SHITTU v. NASIRU & ORS
(2021)LCN/15562(CA)
In The Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 10, 2021
CA/A/455/S/2020
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ABDULLAHI A. SHITTU APPELANT(S)
And
1. ABDULLAHI S. NASIRU 2. MUNKAILA SHODENDE 3. RAMATU OSENI 4. RAKIYA YUNUSA 5. GANIYAT OKESIN 6. BASIRATU SHODENDE 7. HAJIYA RAFIATU RESPONDENT(S)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Niger State Sharia Court of Appeal, Minna, (Now referred to as “The Court Below”) contained in its ruling delivered on the 21st May, 2013 Coram: Hon Khadi Abdulmumini Mohammed, Hon. Khadi Danjuma Mohammed and Hon. Khadi Abubakar Musa Muhammad, whereby the Court below dismissed the appellant’s appeal against the decision of the Upper Sharia Court I, Minna (Now referred to as the Lower Court”) for want of competence. The lower Court had affirmed the decision of the Sharia Court II, Kpakungu, Minna (Now referred to as “The Trial Court”).
Before the trial Court, the respondents commenced this action on 9th February, 2012 vide an application for issuance of writ against the appellant and another praying for an order of the trial Court to distribute the properties of their late father and to direct the appellant and another to bring out whatever the deceased’s property in their possession to the Court.
The appellant as 2nd defendant in response through his counsel filed a notice of preliminary objection dated 15th February, 2012, challenging the jurisdiction of the Court to entertain the matter on the ground of the existence of a will made by the deceased in 1991 and registered at the probate registry in Ibadan, Oyo State.
After hearing the argument of both parties on the preliminary objection, the trial Court on 6th March, 2012 dismissed the appellant’s preliminary objection and affirmed its jurisdiction to hear the matter.
The appellant (2nd defendant) being dissatisfied with the ruling of the trial Court filed a notice of appeal before lower Court. The appeal was taken by the lower Court and dismissed on 7th November, 2012 as lacking in merit. The lower Court in its ruling affirmed the jurisdiction of the trial Court and gave appellant 14 days within which to appeal against the decision.
Also dissatisfied with the decision of the lower Court, the appellant filed an appeal before the Court below via a notice of appeal dated 26th November, 2012 and filed on the same date. When the appeal came up for hearing on the 21st May, 2013, the attention of the parties was drawn to the period the appellant filed his notice of appeal and consequent upon that, the Court below asked both counsel to response to the filing date. After hearing both parties, the Court below in its ruling struck out the appeal.
It is from that decision that this appeal was filed by the Appellant vide a 3 – grounds amended notice of appeal filed on 6th August, 2020 but deemed filed on 12/11/2020. The relief sought is as follows:-
“An order allowing the appeal and setting aside the decision of the Sharia Court of Appeal Minna delivered on 21st May, 2013 by the Kadi of the Sharia Court of Appeal, Minna.
Both parties have filed and exchanged briefs of argument in compliance with the Rules of this Honourable Court. The appellant also filed a reply brief.
In the appellant’s brief three issues for determinations were distilled as follows;
1. Whether the lower Court was not in error when it held that the judgment of the Upper Shariah Court Minna was an Interlocutory judgment and not a final judgment? (Ground one)
2. Whether the lower Court was not in error when it assumed jurisdiction to distribute the estate of the late Alh. Shodeinde Shittu despite the existence of a registered will at the probate division of the High Court, Oyo State? (Ground three)
3. Whether dismissing the appeal without hearing the pending applications of the appellant was not a denial of fair hearing? (Ground two)
On their part the respondents adopted the three issues as distilled by the appellant.
Let me quickly observe that the appellant’s ground three (3) of appeal is not a complaint against the decision being appealed against, therefore, incompetent. The appellant’s issue two for determination nominated from the said ground three is also incompetent.
The settled position of the law is that an appeal can only lie against issue or issues canvassed or determined by a lower Court. A ground of appeal is essentially the complaint of an appellant against the decision being appealed against. The ground must therefore, consist of errors of law or facts alleged by an appellant as the defect in the judgment being appealed against and which, the appellant wants the appellate Court to set aside. Where a ground of appeal therefore, does not attack the ratio decidendi of the decision appealed against, the said ground is incompetent and is liable to be struck out. The seriousness of the situation is further felt where any of the issues for determination is nominated from a defective or incompetent ground of appeal as in this appeal. Such an issue shall equally be adjudged incompetent and shall be liable to be struck out. See LAMBERT VS. NIGERIA NAVY 2006 7 NWLR PT. 980 AT 514; PETER VS. OKOYE 2002 FWLR PT. 110 1864; UGO VS. OBIEKWE 1989 1 NWLR PT. 99 514.
In the instant case the appellant’s ground three of appeal, issue two distilled from the said ground and the entire arguments of the parties on the said issue two are hereby struck out for being incompetent.
The appellant’s issues one and three are adopted in the determination of this appeal. The two issues will be taken together in the determination of this appeal.
ISSUES ONE & THREE (TAKEN TOGETHER)
1. Whether the lower Court was not in error when it held that the judgment of the Upper Shariah Court Minna was an interlocutory judgment and not a final judgment? (Ground one)
3. Whether dismissing the appeal without hearing the pending applications of the appellant was not a denial of fair hearing? (Ground two) Learned counsel for the appellant submitted that the Sharia Administration Law of Niger State, 2002 provides that an appeal emanating from the final judgment of the lower Court (Upper Sharia Court, Minna) shall be filed within 30 days of the delivery of the said judgment.
He contended that the lower Court struck out the appellant’s appeal under the misconception that the judgment of the trial Court is an interlocutory and not final judgment.
On the features of final decision that distinguishes it from interlocutory decisions, learned counsel referred the Court to the cases of;
IGUNBOR VS. AFOLABI & ANOR 2001 LPELR-1454 SC;
WESTERN STEEL WORKS LIMITED & ANOR VS. IRON AND STEEL WORKERS UNION OF NIGERIA & ANOR. 1986 LPELR-3479 SC;
He argued that the foregoing decisions are clear on what constitute a final judgment.
He also referred the Court to the cases of;
AUTOMATIC TELEPHONE & ELECTRIC CO. LTD VS. FEDERAL MILITARY GOVT OF THE REPUBLIC OF NIGERIA 1968 1 ALL NLR 428;
ADEGBENRO VS. AKINTOLA & ADEREMI 1962 1 ALL NLR 442;
LUKE LOVEDAY VS. THE COMPTROLLER OF PRISONS, FEDERAL PRISON, ABA & ORS. 2013 LPELR-22072 CA.
He contended that the judgment of the lower Court is a final decision in respect of the issue submitted before it and a subsequent appeal to an appellate Court would be an appeal against final decision.
He submitted further that the provision of the Sharia Administration Law, Niger State 2002 was not contravened by the appellant. He maintained that the judgment of the lower Court was delivered on 7th November, 2012 while the notice of appeal was filed on 26th November, 2012, nineteen (19) days after the delivery of the decision by the lower Court.
Learned counsel submitted that the Court below completely missed the point when it held there was no judgment delivered by the lower Court and it seemed not to understand the purport of the ruling of the lower Court. He referred the Court to the case of ALH. ABDULKADIR ABACHA VS. KURASTIC NIGERIA LTD 2014 LPELR-22703 CA.
On issue three learned counsel for the appellant submitted that Courts are duty bound to determine all applications before it one way or the other. However, in the instant case the Court below failed to make any pronouncement on the three applications filed before it by the appellant.
He referred the Court to pages 44-64 of the record, Section 36 (6) of the CFRN 1999 (as amended) and the case of CHIEF OF NAVAL STAFF & ANOR. VS. BENJAMIN LIVINUS TSENONGO 2018 LPELR-45883 CA.
He argued that a perusal of the decision of the Court below would reveal that the Court never made reference to any of the applications. The implication of this according to the counsel, is a denial of fair hearing. He referred the Court to the case of CHIEF OF NAVAL STAFF & ANOR VS. BENJAMIN LIVINUS TSENONGO SUPRA AT 21-22.
He urged the Court to allow the appeal.
Learned counsel for the respondents on his part submitted that the ruling of the Court below was an interlocutory judgment, hence the appellant was out of time to file his appeal having filed 19 days after the delivery of the ruling of the Court below delivered on 7th November, 2013. He referred the Court to the cases of;
EDEM VS. AKAMKPA L.G 2000 4 NWLR PT. 651 70 AT 78;
C.G.G NIG. LTD VS. ODURUSAM 2017 17 NWLR PT. 1595 476 AT 484;
AKWA IBOM STATE UNIVERSITY VS. IKPE 2016 5 NWLR PT. 1504 146 AT 158-159.
He maintained that in the light of the above cited authorities, it is beyond contention of the appellant to say the ruling of the lower Court was final one when the main issue before the trial Court is that of sharing of estate and that had not been done. He referred the Court to Order 11 Rule 2 of the Niger State Sharia of Appeal (Civil procedure) Rules, 2009 and Section 24 (2) (a) of the Court of Appeal, Act.
He argued that the appellant having filed his notice of appeal at the Court below on 26th November, 2013 against the decision delivered on 7th November, 2013, 19 days after the said ruling as against the 14 days required, the lower Court was right to have struck out the appeal.
On issue three learned counsel for the respondents submitted that the argument of the appellant on this issue is illogical, the reason is that how can a Court that lacks jurisdiction to entertain the appeal as a result of the defect in the notice of appeal that was filed outside the statutory period, entertain other applications in the same appeal before it, He referred the Court to the cases of;
IWUNZE VS. FRN 2014 6 NWLR PT. 1404 580 AT 596;
RAJI VS. UNILORIN 2018 15 NWLR PT. 1642 PG 220 AT 235. He submitted that in the light of the above cited authorities, the Court below’s refusal to hear the appellant’s pending applications was the right thing to do.
He urged the Court to dismiss this appeal and award N1,000,000.00 cost against the appellant for delaying the course of justice.
In the appellant’s reply brief, learned counsel for the appellant contended that the entire authorities cited by the respondent in support of their issue one are cited out of context and they do not in any way support their argument, but support the position of the appellant.
In response to the respondents’ argument contained in paragraphs 4.30 to 4.38 of their brief of argument, the appellant’s counsel submitted that, it is an age long principle of law that where there are two applications before the Court, one seeking to rectify the defect in the process and the other seeking to nullify the process, the Court will in the interest of justice consider the one seeking to correct the defect first. He referred the Court to the cases of;
BCE CONSULTING ENG. VS. NNPC 2004 3 NWLR PT. 859 PG 1; OBI VS. OGUNBIYI 2012 LPELR – 7984 CA; AKITI VS. OYEKUNLE 2018 LPELR-43721 SC.
He argued that the Court below raised the issue of filing out of time suo motu and refused to allow the appellant time to address it on the issue.
He urged the Court to allow the appeal.
I have carefully perused the argument of both parties in this appeal. It is trite law that in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order. Therefore, the determining factor is not whether the Court has finally determined an issue but whether or not it has finally determine the rights of the parties in the claim before it.
In the instant case, it is my view that the lower Court’s ruling finally determines the rights of parties in the appeal before it. Therefore, it is final decision of that Court. However, the matter does not end there; the record shows that lower Court heard and determined the appeal before it as an interlocutory and it also treat it as such.
The lower Court in its ruling held inter alia as follows;
“The appeal has failed and lack merit and substance. We therefore uphold the prayers of the counsel to the respondents/plaintiff…”
RIGHT OF APPEAL
Aggrieved party with ruling can appeal to Sharia Court of Appeal within 14 days” (Underline mine for emphasis)
It is beyond contention that there is no evidence on record that the appellant herein appealed to the Court below against the decision of the Upper Sharia Court concerning his right of appeal. The Court in its ruling gave the appellant only 14 days within which to appeal against such decision/ruling. The appellant did not file an appeal against the ruling within 14 days given to him and also did not file his appeal within the 14 days as ordered by the Court. It is very clear and settled in a long line of cases by the apex Court that a decision of a Court not appealed against is deemed accepted and remains binding on the parties and all and sundry. See KRAUS THOMPSON ORGANISATION LTD VS. UNICAL 2004 9 NWLR PT. 879 AT 659. In the instant case the decision of the Court below in that regards being not appealed against is binding on the appellant.
Order 11 Rule 2 of the Niger State Sharia Civil Procedure Rules, 2009 provides thus;
“An appeal shall be filed within 14 days in case of interlocutory judgment and within 30 days in case of final judgment by any aggrieved party.”
The lower Court in its ruling held inter alia as follows;
“…by the provisions of Order 11 Rule (2) Niger State (Sharia Administration of Justice) Law, 2001, Sharia (Civil procedure) Rules, 2009 interlocutory appeals are to be filed within 14 days. This appeal is out of time having been filed outside the stipulated days i.e 14 days…”
Having earlier said that the appellant did not file an appeal against the decision of the lower Court giving him 14 days within which to appeal the said decision is deemed accepted by him and is binding on the parties, and in my view, the Court below was right to insist on its compliance.
On whether dismissing the appeal without hearing the pending applications of the appellant was not a denial of fair hearing. I want to say right away that the lower Court did not dismiss the appellant appeal. The Court below in its ruling held inter alia as follows;
“…This appeal is hereby struck out for being incompetent.” See page 79 of the record.
Therefore, the appellant’s contention on this point is misconceived. Furthermore, a notice of appeal is the foundation of an appeal against any appealable decision. If a notice of appeal is defective as in the instant appeal then the Court below would lack legal competence to entertain the appeal. It will strike out the appeal. See RAJI VS. UNILORIN 2018 15 NWLR PT. 1642 AT 235. In the instant appeal, the lower Court having struck out the appeal for failure of the appellant to file the appeal within time, the purported notice of appeal filed is an exercise in futility. The period between 7th November, 2012 when the lower Court delivered its ruling and 26th November, 2012 when the appellant filed his notice of appeal at the Court below is well over 14 days ordered by the lower Court.
Therefore, the appellant’s contention that dismissal of the appeal without hearing the pending applications of the appellant is a denial of fair hearing is grossly misconceived.
In view of all the above, the issues in this appeal are resolved against the appellant and in favour of the respondents, There is no merit in this appeal and it is hereby dismissed.
The decision of the Court below is hereby affirmed.
No cost is awarded.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother, AHMAD OLAREWAJU BELGORE, JCA.
The reasoning and conclusion reached by my noble lord, PJ is fully agreed to me with nothing useful to add thereto.
This appeal lacks merit and therefore dismiss as done in the lead judgment.
I too affirm the decision of the Court below.
I made no order as to costs.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Ahmad Olarewaju Belgore, JCA, just delivered. I agree with the reasoning and conclusion reached and I do not have anything to add. I abide by all the orders made therein.
Appearances:
J. G Taidi, Esq., with him, E. B. Goje, M. B. Magaji, Messrs. and others For Appellant(s)
M. A. Sallawu, Esq., with him, A. M. Umar, and M. D. Adam Messrs. For Respondent(s)
