HON. JUDGE, UPPER SHARIA COURT TUDUN WADA, KADUNA & ORS v. ATIYU J.D. UMAR & ORS
(2013)LCN/6315(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2013
CA/K/205/2010
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
CFR Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. HON. JUDGE, UPPER SHARIA COURT TUDUN WADA, KADUNA
2. ABDULLAHI J.D. UMAR
3. MUKTAR J.D. UMAR
4. MOHAMMED J.D. UMAR
5. FAROOQ J.D. UMAR
6. AMINA J.D. UMAR
7. HAJARA J.D. UMAR
8. ZAINAB J.D. UMAR
9. FATIMA J.D. UMAR
10. RUKAYA J.D. UMAR
11. MARYAM J.D. UMAR
12. UMMA SALMA J.D. UMAR
13. RAKIYA J.D. UMAR
14. HAFSAT J.D. UMAR
15. RABI J.D. UMAR
16. MARLIYYA J.D. UMAR Appellant(s)
AND
1. ALIYU J.D. UMAR
2. HAJIYA JUMMAI J.D. UMAR
3. HAJIYA AMINA BABAJI Respondent(s)
RATIO
THE IMPLICATION OF FAILURE TO BRING AN APPLICATION TO APPEAL WITHIN THE PRESCRIBED TIME
To resolve this lone issue, simply is by reference to the case of Okonkwo v. Ngige (2006) 8 NWLR (pt. 981) 119 at page 138 where Ogebe JCA as he then was has this to say:
“The application is totally misconceived and a waste of judicial time. Even if the applicant has a legal interest in the appeal (which he has not been able to establish) his failure to bring his application within 21 days allowed to appeal from the judgment of the Election tribunal as provided for in Section 138 of Electoral Act 2002 permanently shuts him out as the time provided therein cannot be extended.”Another factor to consider in this application is that the learned trial judge after discountenancing the preliminary objection did not grant the extension of time. PER ADAMU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The issue of jurisdiction is very fundamental. Any defect or non compliance with the rules of court that goes to the competence or jurisdiction of the Court is fatal. It renders the entire proceedings a nullity however well conducted. Where the non compliance does not affect the jurisdiction the Court may set it aside ex debito justitiea – See Madukolu v. Nkemdilim (1962) 2 SCNLR 341: Odua Investment Co. Ltd. V. Talabi (1997) 10 NWLR (pt.523) 1. PER ADAMU, J.C.A.
THE ESSENCE OF STATUTES OF LIMITATION
Order 37 Rule 4 of the High Court of Kaduna State (Civil Procedure Rules) 2007 stipulates that an application for judicial review shall be brought within three months of the date of occurrence of the subject of the application. It was not in contest between the parties in this matter that the application for certiorari before the lower Court was not filed within three months. It is trite law that where a statute prescribes a limitation period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period; the action is said to be statute barred – Aremo II V. Adekanye (2004) 13 NWLR (Pt 891) 572, Yakubu V. NITEL (2006) 9 NWLR (Pt 985) 367, Williams V. Williams (2008) 10 NWLR (Pt 1095) 364, Congress for Progressive Change V. Independent National Electoral Commission (2011) 18 NWLR (pt 1279) 493, Adewale V. Olaifa (2012) 17 NWLR (pt 1330) 478. PER ABIRU, J.C.A.
DALHATU ADAMU, J.C.A., CFR (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Tanimu Zailani, judge of the High Court of Justice Kaduna State in exercising the Courts appellate jurisdiction in Suit No. KDH/KAD/175/2009 wherein the learned trial judge entered judgment against the appellants in favour of the Respondents by removing the proceedings of the Upper Sharia Court, Tudun Wada Kaduna to the High Court Kaduna and quashing the same in his judgment. The learned trial judge held that the Upper Sharia Court Judge Mustapha Umar acted without jurisdiction when he shared the estate of the appellants and respondents late father wherein the Trial High Court Judge himself had no jurisdiction to entertain the certiorari application brought by the respondents herein and thereby leading to a miscarriage of justice.
The parties in this appeal filed briefs of arguments with the appellants brief filed and deemed on 23/3/2011. The respondents brief on the other hand was filed on 16/11/2012. In their brief, the appellants formulated a single lone issue for the determination of the appeal as follows: –
“Whether the Respondents motion/application for a judicial review dated on 4th March, 2009 at the lower court which was out of time was competent without an order of the Court regularising the same.”
In arguing the above issue, the appellants brief stated that in order to appreciate the gravamen of the issue, it is important to refer to Order 37 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules 2007 which states that:
“An application for judicial review shall be brought within three (3) months of the date of the occurrence of the subject of the application.”
It is submitted that a Court is competent with regard to a suit or other proceedings when it has power to hear or determine it or exercise any judicial power therein. See the case of Engr. Goodnews Agbi & 1 or. v. Chief Audu Ogbe, James Ibori & 3 ors. (2004) All FWLR (pt.202) 1799 at 1845.
It is submitted that based on the above authority it is that for a Court to be competent the jurisdiction to determine an application for a judicial review under Order 37 Rule 4 of Kaduna State (Civil Procedure) Rules 2007 such an application must be brought within three (3) months of the occurrence of the event the application is seeking to review. It is pertinent to state here that the judgment of the Upper Sharia Court Tudun Wada, Kaduna which the respondent sought to review by way of certiorari was delivered on 4th March 2008 while the application was filed on 4th March 2009 (one year after the Sharia Court judgment) without leave or order of the lower Court for extension of time to file the application. It is the further submission of the appellants brief that what the lower court did was to put something on nothing which can never stand. In essence, the failure of the respondents to seek leave of the lower court for extension of time after 3 months to initiate their application for judicial review (certiorari) amounted to a non-compliance with the due process of law and non fulfilment of condition precedent for the Court to exercise jurisdiction thereby rendering the proceedings of the lower Court a nullity. Reference is made to the cases of Chief Mike Okpere & 1 or. v. Alhaji Garba M. Rugoji & 1 or. (2004) FWLR (pt.194) 463 at p.475 – 476 (Per Muhammad JCA as he then was of this Court) and see also Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 581.
The brief continues that it is trite that a party seeking the discretionary powers of the Court must initiate his case or application within the provision of the rules of Court which he purports to make his application. It is therefore submitted in the appellants brief that the failure of the respondents to bring their application for judicial review in accordance with the provision of Order 37 Rule 4 (supra) renders the application incompetent, and also deprive the lower Court of competent jurisdiction to entertain the same as the respondents were already out of time as provided by the Rules. Reference is made to the case of Okpere v. Rugoji (supra).
With regard to ground two (2) of this appeal, it is submitted that the lower Court misconstrued itself when it held that the provision of Order 37 Rule 4 is not mandatory. It is submitted that any application for judicial review must be brought within 3 months of the date of the occurrence of the event which in this case was a request for judicial review of the judgment of the Upper Sharia Court delivered on 4th March 2008.
In the respondents brief on the only lone issue, it is submitted that the respondent’s application for judicial review at the lower court was competent as it was done in compliance with the procedure laid down by the rules of Court. Under Order 37 Rule 3(1) of the Rules (Supra) it is provided that:
“No application for judicial review shall be made unless leave of the Court has been obtained in accordance with this rule.”
It is submitted that the respondents followed the above procedure by instituting the application for judicial review before the lower Court (at Pages 1 – 9) of the record of proceedings. The Court has power to hear and determine a suit or other proceeding – See Eng. Goodnews Agbi & Anor. V. Chief Audu Ogbe & 4 others (2004) All FWLR (pt.202) 1779 at 1845. For the court to exercise competent jurisdiction to determine an application for judicial review the provision of Order 37 rule 3 must be satisfied.
The brief adds that the Appellants counsel did not challenge the procedure followed by the Respondents in bringing the application for judicial review, before the lower court. Nor are they challenging the quashing of the proceedings by the Upper Sharia Court Tudun Wada Kaduna on its merits. However the brief stated further that the Appellants contention was only that the respondents brought their application for judicial review outside the three (3) months allowed by the rules of Court.
The respondents brief quoted the ruling of the trial judge in which he despite their failure to bring the application for judicial review within the terms of Order 37 Rule 4, he has found the circumstances and facts deserving and the objection should be discountenanced. In another similar case of Oyegun v. Francis Arthur Nzeribe (2010) 16 NWLR (pt.1220) 568 at pages 580 – 581 and Alhaji Atiku Abubakar & 2 ors. v. Alhaji Umar Musa Yar’adua & 5 others (2008) 4 NWLR (pt.1078) 465 at 511 where the Court held that:
“Rules of Court are meant to be obeyed. Of course that is why they are made. But there is an important qualification or caveat and it is if their obedience be slavish to the point that justice in the case is destroyed or thrown overboard.”
It is finally submitted that in the circumstances of the case and the authorities cited above that this Court should hold that the learned trial judge was right in his decision by looking at the justice of the matter and not the strict adherence to procedure. That is all.
To resolve this lone issue, simply is by reference to the case of Okonkwo v. Ngige (2006) 8 NWLR (pt. 981) 119 at page 138 where Ogebe JCA as he then was has this to say:
“The application is totally misconceived and a waste of judicial time. Even if the applicant has a legal interest in the appeal (which he has not been able to establish) his failure to bring his application within 21 days allowed to appeal from the judgment of the Election tribunal as provided for in Section 138 of Electoral Act 2002 permanently shuts him out as the time provided therein cannot be extended.”
Another factor to consider in this application is that the learned trial judge after discountenancing the preliminary objection did not grant the extension of time.
The issue of jurisdiction is very fundamental. Any defect or non compliance with the rules of court that goes to the competence or jurisdiction of the Court is fatal. It renders the entire proceedings a nullity however well conducted. Where the non compliance does not affect the jurisdiction the Court may set it aside ex debito justitiea – See Madukolu v. Nkemdilim (1962) 2 SCNLR 341: Odua Investment Co. Ltd. V. Talabi (1997) 10 NWLR (pt.523) 1.
Consequently I allow the appeal on the issue of jurisdiction. I hold that the ruling delivered by the learned trial judge are or amount to a nullity. And the judgment quashing the proceeding of the Upper Sharia Court Tudun Wada Kaduna is hereby set aside. I made no order as to costs.
ABDU ABOKI, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, DALHATU ADAMU, JCA, CFR, just delivered. I agree with the reasons and conclusion contained therein. I agree that the ruling delivered by the learned trial Judge be set aside and quashed for being a nullity. I also make no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my Lord, Honourable Justice Dalhatu Adamu, JCA. His Lordship has considered and resolved the issue in contention in this appeal. I agree with the reasoning and abide the conclusions therein.
The sole issue for determination in this appeal is whether the lower Court had jurisdiction to entertain an application for judicial review by an order of certiorari brought outside the time allowed by the Rules of Court. The lower Court sitting in its appellate jurisdiction in Suit No KDH/KAD/175/2009 removed the proceedings of the Upper Sharia Court Tundun Wada to the High Court of Kaduna State and quashed same as well the judgment entered by that Court. It was not in contest that the judgment of the Upper Sharia Court that was removed and quashed by the lower Court was delivered on the 4th of March 2008 and that the application for judicial review was filed on the 4th of March, 2009, exactly one year thereafter.
Order 37 Rule 4 of the High Court of Kaduna State (Civil Procedure Rules) 2007 stipulates that an application for judicial review shall be brought within three months of the date of occurrence of the subject of the application. It was not in contest between the parties in this matter that the application for certiorari before the lower Court was not filed within three months. It is trite law that where a statute prescribes a limitation period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period; the action is said to be statute barred – Aremo II V. Adekanye (2004) 13 NWLR (Pt 891) 572, Yakubu V. NITEL (2006) 9 NWLR (Pt 985) 367, Williams V. Williams (2008) 10 NWLR (Pt 1095) 364, Congress for Progressive Change V. Independent National Electoral Commission (2011) 18 NWLR (pt 1279) 493, Adewale V. Olaifa (2012) 17 NWLR (pt 1330) 478.
A statute barred action is incompetent and the consequential effect of this is that a Court before whom such an action is brought cannot entertain it and where it does, its decision thereon will be null and void.
The judgment of the High Court of Kaduna State, sitting in its appellate jurisdiction in Suit No KDH/KAD/175/2009, delivered by Honorable Justice Taminu Zailani delivered on the 30th of June 2009 is thus null and void, in the circumstances of this case, and is liable to be set aside. It is for this reason, and the fuller reasons contained in the lead judgment, that I too allow this appeal and set aside the judgment of the lower Court. I abide the order on costs in the lead judgment.
Appearances
Abdulmalik AbdulazeezFor Appellant
AND
Mas’ud AlabeleweFor Respondent
