SAMAILA BALA v. HINDE BADAMASI GUMEI & ANOR
(2014)LCN/7329(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of June, 2014
CA/K/246/2011
RATIO
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING AND THE PROPER ORDER WHEN A COURT FINDS THAT IT DOES NOT HAVE JURISDICTION
It is trite that jurisdiction is the body and soul of every judicial proceedings before any Court or tribunal and without it all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a cause. It is also an established principle that any order made by a Court must be within the powers and jurisdiction of the Court. In Nwankwo vs. Customary Court Ndiawa Arondizuogu (2009) LPELR- 458Q (CA) 4589, it was held that the Certiorari proceeding is one of the means by which a Superior Court such as the High exercises its supervisory jurisdiction over the proceedings of inferior Courts.
Further, in Galadima Vs. Alhaii Adamu Tanbai & Others (2000) SCNJ 190, U.A.C. Ltd Vs. Macfoy (1961) 8 ALL ELR 1477, it was held that it is trite that if a court had no jurisdiction to hear or determine a matter then it could not have powers to order a transfer of the matter to any other Court. It would only strike out the matter or suit. per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
J. S. IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
SAMAILA BALA Appellant(s)
AND
1. HINDE BADAMASI GUMEI
2. ALHAJI USMAN SHAIBU
The Honourable Upper Sharia Court Judge presiding over Upper Sharia Court Bichi Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent commenced an action against the Appellant at the Upper Sharia Court, Bichi, Kano State by a Civil Summons filed on 8/9/09 seeking the custody of the five children of her marriage with the Appellant. On 18/6/09, when the matter was mentioned at the said trial Upper Sharia Court Bichi, the Appellant was absent, but, the trial Court however remarked and ordered thus:
“He who was sued was absent in the Court, and also his counsel absent but with all that, the court had directed the registrar Rufai Ahmed Tijjani to write letter of transfer to another U.S.C of Gumel Jigawa State, because they had understood that, this suit was supposed to be filed in Gumel, since the marriage done, and the children given birth to were also in Gumel in Jigawa State, as such, the applicant was living in Gumel Jigawa State as such the matter was transferred to Gumel U.S.C. Jigawa State from 22-7-09.”
Being displeased with the said judgment, the Appellant, rather than appealing, opted for initiation of certiorari proceeding before the Kano State High Court seeking as follows:
1. An Order of certiorari to remove the proceedings of Upper Sharia Court Bichi, presided over by Hon. Alkali Usman Shuaibu in case No. CV/119/09 (Hinde Badamasi Gumel vs. Samaila Bala) which was brought by a summons on the 18th of June 2009 for the purpose of being quashed and prohibition from further proceeding with the case
2. An Order of prohibition restraining all the Respondents in this case from taking any steps or doing any acts whatsoever either by themselves or through their servants, agents, or howsoever to interfere with the Applicant in any way or manner, whatsoever in the enjoyment of the rights and privileges as a citizen of Nigeria, pending the determination of the substantive application.
3. An Order setting aside case No. CV/119/09 and the order transferring the case to Gumel, before the 2nd Respondent and the entire proceedings therein for being incompetent, invalid, null and Void ab initio.
4. A Declaration that the 2nd Respondent lacks the jurisdiction to entertain Case No. CV/119/09 and order striking out the said case.
5. An Order that the leave granted will serve as a stay of proceedings before 2nd Respondent.
6. For further order of this Honourable Court may deem fit to make in the circumstances.”
On 2/4/14, only the Appellant’s Counsel, Chief O.E.B. Offiong SAN appeared. The Respondent’s Counsel failed to appear despite being served with hearing notice on 1/4/14 by though the Respondent did not file any Brief.
The lone issue postulated by the Appellant’s learned Senior Counsel, Chief O.E.B. Offiong SAN, is “whether on the basis of the Supreme Court’s decision in ACB Plc vs. Nwaigwe (2011) 7 NWLR Part 1246 page 380, the lower Court was right to refuse an order for certiorari on the ground that the Appellant can only appeal against the decision of the Upper Sharia Court, Bichi which is an inferior Court.”
Submitting on behalf of the Appellant, his learned Senior Counsel Chief O.E.B. Offiong, SAN, in the Appellant’s Brief of Argument, referred to the remarks of the lower Court at pages 125-128 of the record of proceedings where it said inter-alia, “the only alternative for the Applicant is to appeal against the Order of the Court having been given without such judicial backing instead of coming by way of certiorari, and argued it was wrong and a complete departure from both statutory and judicial authorities on this issue. He pivoted his contention on the provisions of Order 43 Rules 1 and 3 of the Kano State High Court (Civil Procedure) Rules 1988, the cases of ACB Plc vs. Nwaigwe (2011) 7 NWLR Part 1246 page 380; Egharareuba vs. Eribo & Ors (2010) 9 NWLR Part 1199 page 411 at 436 paragraphs B-E; Okeahialam vs. Nwamara (2003) 12 NWLR Part 835 page 597 at 611 paragraphs D-E, in which Lord Deanig L J’s decision in R vs. Northumberland Compensation Appeal Tribunal, EX-parte Shaw (1952) 1 All ER 122 was cited with approval. The learned Senior Counsel further made reference to ACB plc vs. Nwaigwe (supra) in which the Supreme Court interpreted Order 43 Rule 3 (6) of the High Court of Adamawa State (Civil Procedure) Rules and which is in pari materia with Order 43 Rule 3(6) of the Kano State High Court (Civil Procedure) Rules and held that the Appellate jurisdiction of the High Court and its jurisdiction to award certiorari are two distinct and separate jurisdiction, therefore the absence or existence of a right of appeal or limitation of that right where it exists is irrelevant to the right of the High Court to issue certiorari. A party aggrieved by a tribunal’s decision may apply for and be granted an order of certiorari even though an alternative remedy may be available to him.
The learned Senior Counsel then submitted that by the Supreme Court decision in the aforementioned case, and the provisions of Order 43 Rule 3 (6) of the Kano State High Court (Civil Procedure) Rules, the Kano State High Court has supervisory jurisdiction to issue Order of certiorari as opposed to its appellate jurisdiction notwithstanding the existence of the right to appeal the High Court of Kano State. The supervisory jurisdiction is a constitutionally guaranteed one and only the Constitution can revoke such jurisdiction.
He further cited Okeahialam vs. Nwamara (supra) in support, and stressed that the decision of the lower Court is wrong in law and occasioned a miscarriage of justice against the Appellant because it is for such instances as where an inferior Court acts without jurisdiction or in excess of its jurisdiction that the supervisory jurisdiction of the High Court can be invoked to inquire into the legality of the acts, order, judgment or proceedings of the inferior Court. He further argued that since the Appellant had exercised his right of access to the Court by invoking the supervisory jurisdiction of the Court, it does not lie in the lower Court to shut the doors of the Court or summarily dismiss the Appellant insisting he should go on appeal which will then amount to an abuse of Court process. He further made reference to the cases Onyekwuluje vs. Benue State Govt. (2005) 8 NWLR Part 928 page 636 – 637 paragraphs C-D, H-A; ACB Plc vs. Nwaigwe (supra); Tukur vs. Govt. of Gongola State (1989) NWLR Part 117 page 521 at 560 – 561 paragraphs H-A; U.B.N. Plc (2007) 16 NWLR Part 1059 page 99 at 144 paragraphs A-F; 155-156, paragraphs H-A; and Lagga vs. Sarhuna (2008) 16 NWLR Part 1114 PAGE 427 at 482-483, and urged this Court to exercise its power under section 16 of the Court of Appeal, Act and set aside the decision of the lower Court and grant the order of certiorari.
In considering the crux of this appeal, it ought to be recognized that a Writ of Certiorari requires the record or the order of the inferior tribunal or Court or quasi-judicial body to be sent up to the High Court to have its legality inquire into, and if necessary, to have the order quashed. Further, the prerogative Writ of Certiorari lies to remove proceedings from inferior Court to be quashed for excess of jurisdiction and for a variety of purposes. It would issue for any purpose aimed at preventing an injustice from being done. In summation, remedy by certiorari proceedings will be granted when any of the following, is present in the judgment or order of an inferior Court: (a) lack of or excess of jurisdiction, or (b) Error on the face of the record of an inferior Court; or (c) Breach of observance of natural justice regarding fair hearing. So in certiorari proceedings, what is to be resolved is the question of jurisdiction, glaring mistake or error, and unfair hearing on the face of the record of the inferior Court.
The main contention of the Appellant squared on the decision in ACB Plc vs. Nwaigwe (supra), due to the ruling of the lower Court stating that the order of transfer by the Upper Sharia Court is an order of a Court of competent jurisdiction, and if, therefore, the order was done without the necessary judicial backing, the only alternative for the applicant is to appeal against the order of the Court having been given without such judicial backing, instead of coming by way of certiorari because there is no proceedings pending before the Upper Sharia Court which the Court will remove.
However, in ACB Plc vs. Nwaigwe (supra), relied upon by the learned Senior Counsel the Supreme Court decided that certiorari is an alternative to appeal, the two invite the Superior Court to examine the proceedings of an inferior Court with a view to setting it aside in favour of the aggrieved party.
A party aggrieved by a tribunal decision may apply for and be granted an order of certiorari even though an alternative remedy may be available to him. The only sang is that the party so aggrieved cannot employ both remedies simultaneously for the purpose of seeking redress of the unacceptable decision.
In the instant case, the Upper Sharia Court, Bichi recognized it lacked the jurisdiction to hear and determine the suit commenced by the Respondent against the Appellant but still proceeded to order for its transfer to the Upper Sharia Court, Gumel, in Jigawa State. It was the contention of the Appellant before the lower Court that the said trial Court lacked the jurisdiction to order the transfer of the said suit when it had declined jurisdiction to entertain the matter. Since the issue being contested herein is the lack of jurisdiction on the part of the trial Upper Sharia Court to transfer the said suit to another Upper Sharia Court when it declined jurisdiction to hear and determine the said suit, it is my profound view that certiorari proceeding can be initiated by the Appellant to quash the said order made therein. The order was made without jurisdiction. It is trite that where a Court feels it does not possess the jurisdictional competence to hear and determine, a case, it equally lacks the jurisdiction to make an order of transfer of the said suit to a Court with jurisdiction.
In Obi vs. INEC (2007) 11 NWLR Part 1046 page 565 the Supreme Court held that once there is absence of jurisdiction, the Court cannot do anything else except to strike out the matter. If the Court were to transfer, it means the Court is saying there is limited jurisdiction or a conditional jurisdiction, the same Court would proceed upon no foundation or base to carry out judicial function like transferring the suit to another Court imbued with the appropriate jurisdiction. The Court would only strike out the matter or suit.
It is trite that jurisdiction is the body and soul of every judicial proceedings before any Court or tribunal and without it all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a cause. It is also an established principle that any order made by a Court must be within the powers and jurisdiction of the Court. In Nwankwo vs. Customary Court Ndiawa Arondizuogu (2009) LPELR- 458Q (CA) 4589, it was held that the Certiorari proceeding is one of the means by which a Superior Court such as the High exercises its supervisory jurisdiction over the proceedings of inferior Courts.
Further, in Galadima Vs. Alhaii Adamu Tanbai & Others (2000) SCNJ 190, U.A.C. Ltd Vs. Macfoy (1961) 8 ALL ELR 1477, it was held that it is trite that if a court had no jurisdiction to hear or determine a matter then it could not have powers to order a transfer of the matter to any other Court. It would only strike out the matter or suit.
It is trite that where a Court acts without jurisdiction or in excess of its jurisdiction no ground of liberality can validate its actions. The record before this Court shows that the Upper Sharia Court, Bichi, acted without jurisdiction when it discovered it had no jurisdiction to entertain the suit and still transferred it to another Upper Sharia Court, Gumel in another State, i.e., Jigawa State for hearing. This is, a clear cut case of a abuse of power and acting without jurisdiction. Accordingly, the issue formulated by the Appellant is hereby resolved in favour of the Appellant. The appeal is hereby allowed. The judgment of the lower Court delivered on 1/3/11 is hereby set aside. The application of the Appellant for an order of certiorari to remove the order made on 10/3/2010 in the proceeding instituted before the 2nd Respondent in case No: CV/119/09 Hinde Badamasi Gumel vs. Samaila Bala Kurumusawa into the High Court for the purposes of being quashed and for an order setting aside case No: CV/119/09 before the 2nd Respondent, the entire proceedings and the order transferring the case to Upper Sharia Court, Gumel for being incompetent and for want of jurisdiction on the part of the 2nd Respondent is hereby granted.
Accordingly, the proceeding in CV/119/09 conducted in the Upper Sharia Court, Bichi and the order dated 10/3/2010 transferring the suit to Upper Sharia Court Gumel, are hereby quashed. There will be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Theresa Ngolika Orji-Abadua, J. C. A., which I adopt as my judgment in the appeal.
TIJJANI ABUBAKAR, J.C.A.: The lead Judgment just rendered by my learned brother Orji-Abadua, JCA represents my judgment in this appeal, I therefore adopt same as mine.
Appearances
Chief O.E.B. Offiong, SAN; with G. O. Uzu Esq; Mrs L. O. Oyewa and A. T. Falola Esq;For Appellant
AND
No Counsel for the Respondent.For Respondent
