MUHAMMED JIBRIN v. RAKIYA MUSA & ANOR
(2019)LCN/12596(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/K/508/2016
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“A Court of justice is inherently empowered in appropriate circumstance to make orders that are tailored to achieve justice in a case brought before it. The 1st respondent can at best be taken to be speculating on the reason behind the order made by the Upper Sharia Court.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JURISDICTION: WHERE A COURT ACT WITHOUT JURISDICTION
“Where a trial Court or lower Court (as the case may be) has been found to have acted without jurisdiction as being alleged in this case, the entire proceeding(s) of the lower Court being complained of together with its decision or order(s) that emanated or secured therefrom would be considered a nullity as if it has not been made at all. Thus, the decision and/or order(s) would be set aside as void and of no effect whatsoever in law. See the cases of OKOYE & ANOR. VS. CENTRE POINT MERCHANT BANK LTD. (2008) 15 NWLR (PT. 1110) 335; VAB PETROLEUM INC. VS. MOMAH (2013) 14 NWLR (PT. 1374) 284 and EHUWA VS. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) LPELR – 1056 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
MUHAMMED JIBRIN Appellant(s)
AND
1. RAKIYA MUSA
2.UPPER SHARIA COURT, MAKERA, KADUNA Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the decision of the High Court of Kaduna State, sitting at Kaduna (hereinafter referred to as the lower Court), delivered on the 24th day of May, 2016 by Hon. Justice Tanimu Zailani, C. J. (See page 86 of the record of appeal.)
The suit which led to this appeal was commenced by the applicant/1st respondent (hereinafter referred to as the 1st respondent) by way of a motion on notice, dated and filed on the 8th day of March, 2016, wherein she sought for the grant of the following prayers:
i. AN ORDER OF THIS HONOURABLE COURT quashing the proceedings of the 1st respondent in the case of RAKIYA MUSA VS. MUHAMMED JIBRIN from Upper Sharia Court Makera, Kakuri for the purpose of being quashed and prohibiting the 1st respondent from taking further step whatsoever in respect of the said case on grounds of breach of natural justice and lack of fair hearing.
ii. AND for such further order(s) as this honourable Court may deem fit to make in the circumstance of this case.
The said application was supported by an affidavit, further affidavit, and further and better affidavit together with written addresses. The then 2nd respondent/appellant (hereinafter referred to as the appellant) filed a counter affidavit of 18 paragraphs and a written address on the 1st day of April, 2016.
On the 12th day of April, 2016, the parties adopted their respective processes; thereafter the learned trial judge adjourned for delivery of judgment. The learned trial judge after considering and evaluating the affidavit evidence of the parties, the documents attached to it as exhibits and submissions/arguments contained in their written addresses, found that the 1st respondent herein has made out a proper case which entitled her to the grant of the reliefs sought and the learned Chief Judge accordingly granted her prayer in the following terms and tenor and I quote:
‘When the totality of the averments in this application are considered vis-a-vis the record of proceedings of the Upper Sharia Court Makera are considered in line with the respective addresses of the parties. I prefer to believe the Applicant herein that she was not afforded fair hearing a situation that occasioned a serious miscarriage of justice. Consequently I find merit in this application and order it as prayed.
Accordingly, I do bring into this Court the proceedings and order of the Upper Sharia Court, Makera, Kaduna in the case of RAKIYA MUSA V. MUHAMMED JIBRIN and quash same.’
The appellant was dissatisfied with the decision of the lower Court and has therefore appealed to this Court. Appellant’s complaints against the decision of the lower Court were expressed and captured in his three grounds of appeal. The said grounds of appeal shorn of their particulars are reproduced below as follows:
GROUND ONE
The learned trial judge erred in law when he assumed jurisdiction on a matter that is within the appellate and supervisory jurisdiction of the Sharia Court of Appeal in a civil proceeding involving question of Islamic personal law.
GROUND TWO
The learned trial judge erred in law and thereby occasioned miscarriage of justice when it granted the 1st respondent’s reliefs by quashing the entire proceedings of the 2nd respondent without critically evaluating the documentary evidence before him, and thereby occasioned miscarriage of justice on the appellant.
GROUND THREE
The decision of the Court is unnecessary, unwarranted and cannot be supported having regard to the evidence.
In prosecution of this appeal, and upon the due regularization of the record of appeal, the parties duly filed and exchanged their respective briefs of argument. The appellant?s brief or argument prepared by Maruf Babatunde Yusuf Esq was filed on the 24th day of May, 2017. The respondent?s brief of argument was settled by Muhammad Hamza A. G. Esq. The 1st respondent?s brief of argument was dated and filed on the 3rd day of April, 2018, but it was deemed as properly filed and served by the order of this Court made on the 17th day of April, 2018.
Towards the determination of this appeal, the learned counsel for the appellant donated two issues for resolution.
The issues are reproduced below as follows:
i. Whether the trial Court has supervisory jurisdiction to review a matter that borders and is revolving on question of Islamic Personal Law.
ii. Whether the learned trial judge was right to grant the relief of the 1st respondent without evaluating the material evidence before it.
The two issues reproduced above were also adopted by the learned respondent’s counsel albeit, with modification in respect of the 1st issue. The said issues are also adopted by me for resolution in the determination of this appeal.
ARGUMENT ON ISSUES.
The learned counsel for the appellant submitted, that ‘jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.’ He referred us to the cases of SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435; SKENCONSULT NIG.LTD. & MOTEL LTD. VS. B.O.N. LTD. (1998) 10 NWLR (PT. 570) 353 which was wrongly cited with the correct citation being: LEEDO PRESIDENTIAL MOTEL LTD. VS. B.O.N. LTD. (1998) 10 NWLR (PT. 570) 353 and MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR, 341 among others. The learned appellant’s counsel further submitted, that, where any of the party is dissatisfied with the decision emanating from the Sharia Court or Upper Sharia Court of a State on civil issue involving question on Islamic Personal Law(s) the proper forum to exercise the right of appeal or supervisory right is the Sharia Court of Appeal of a State. He referred us and extensively quoted the provision of Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The learned counsel for the appellant then stated, that ‘parties to the proceedings being Muslims have requested the Court of the first instance to determine the custody and maintenance of their children in accordance with Islamic Personal Law and in line with Section 277 (2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are bound to follow the stream of appeal of any decision of the Court. Thus, he submitted, that ?the High Court lacks the supervisory jurisdiction to entertain civil proceedings on Islamic Personal Law.
The learned counsel for the 1st respondent in reply submitted, that the lower Court has the supervisory jurisdiction to hear and determine an application for certiorari filed against the decision of a Sharia Court. He supported his submission with the case of OKEAHIALAM VS. NWAMARA (2003) 12 NWLR (PT. 835) 597. The learned counsel stated, that ?looking at the judgment of the lower Court as contained in pages 82 – 86 of the record of appeal could reveal that the lower Court did not substitute its opinion for that of the lower Court as the appellate Court would do, rather it only quashed the decision of the lower Court because on the face of the record there is a breach of the rules of natural justice occasioned to the 1st respondent.
Furthermore, the learned counsel for 1st respondent submitted, that an application for certiorari being a prerogative remedy under fundamental right, it is only the High Court that has jurisdiction to hear and determine same not the Sharia Court of Appeal. He referred to Section 46 (1) and (2) of the Constitution. Thus, it was submitted, that ?the trial Court is well clothed with the requisite jurisdiction to hear and determine the application and has acted rightly in assuming jurisdiction over the matter.
Before delving into resolving this issue, it is pertinent to give a brief summary of the facts of the case. The 1st respondent was the plaintiff at the Upper Sharia Court, Makera, Kakuri, Kaduna State, where she sued for the custody of her children following her divorce from the appellant who was the defendant in the case. While the case was going on before the said Upper Sharia Court, a letter was sent from the school which two out of the three children were attending, pleading with the Court to exercise its power favourably by taking steps to ensure that the children would not miss the opportunity to participate in their forthcoming examination. As a result of this letter, the Court summoned the parties to appear before it on a date prior to the previously fixed adjournment date. The 1st respondent?s counsel could not attend on the summoned date and he sent a letter through the 1st respondent appealing to the Court to stick to the formerly agreed adjourned date and further suggested another date in the event the earlier date is not convenient for the Court.
The Upper Sharia Court in view of the 1st respondent’s letter for adjournment, conceded and adjourned the proceeding. However, the Court ordered the 1st respondent to bring one of the children by name Suleiman Muhammad Jibrin to Court on the said adjournment date. It was this order and the proceedings of the date the order was made that 1st respondent applied to the lower Court to quash and the application was granted. The appellant thereby brought/filed this appeal and challenged the jurisdiction of the lower Court to entertain the 1st respondent?s application ab initio and the correctness of the said lower Court’s decision.
It is not in dispute that the appellant and 1st respondent are Muslims, hence, the proceedings at the Upper Sharia Court, Makera, Kaduna. It is also not in dispute that the 1st respondent?s claim at the said Court was based and were pursued pursuant to Islamic Personal Laws and religious tenets. It is also not in dispute that the proceedings of the said Upper Sharia Court are subject and regulated by Islamic Law. Thus, the allegation by the 1st respondent that she was denied fair hearing was ordinarily to be reviewed and determined in accordance with the dictate, tenets and practice of Sharia Laws.
It is to be noted, that a Court that is hearing an application for judicial review is acting in a supervisory capacity. Thus, in the content and con of our legal system, power of judicial review is invariably and primarily the function of an appellate Court. Hence, it is a Court that is vested with the exercise of appellate jurisdiction, or capable of exercising appellate jurisdiction over the decision of a lower Court, that can also wield the power of judicial review over such a lower Court.
Basically, judicial review connotes an appeal. That is, having recourse to a superior Court in order for it to review the decision of an inferior Court. Put differently, it is a complaint to a superior Court with regard to an error or injustice committed by an inferior Court and in respect of which the error or injustice is sought to be corrected or reversed by the superior Court.
Now, let’s have recourse to applicable and relevant provisions of the law. S.10(4) of the Sharia Court of Appeal Law, 1991 as amended by S.8 of the Sharia Court of Appeal (Amendment) Law, 2001 with 25th July, 2001 as its commencement date provides:
‘The Court shall have jurisdiction to review cases reported to it in accordance with any Sharia Law.’
It is also instructive to note, that S.5 of the Sharia Court (Amendment) Law, 2001 with 1st September, 2001 as its commencement date provides that there shall be two classes of Sharia Courts in Kaduna State, namely:
(i) Upper Sharia Court and
(ii) Sharia Court
Additionally, Order 28 Rule 1 of the Sharia Courts (Civil Procedure) Rules, 2010 with 12th July, 2010 as its commencement date provides:
‘Any party aggrieved by a decision or order of either a Sharia Court or Upper Sharia Court as the case may be, in a civil cause or matter may appeal to Upper Sharia Court or to the Sharia Court of Appeal within 30 days of the date of such decision or order.’
I have had recourse to construe the above quoted provisions and I am of the firm viewpoint, that any challenge or complaint whatsoever from a decision or order in respect of any aspects of a proceeding before the Upper Sharia Court or Sharia Court shall be by way of an appeal and it shall be laid before the Sharia Court of Appeal and not to any other Court, such as the High Court as it was done in the instant case. Indeed, in the instant case, the 1st respondent initially sued the appellant before the Sharia Court, Barnawa, Kaduna for the custody and maintenance of the three children of the marriage between the 1st respondent and the appellant. Both parties are Muslims. The appellant lodged an appeal before the Sharia Court of Appeal, against a decision/order of the Sharia Court, Barnawa, Kaduna. The Sharia Court of Appeal in its judgment and exercise of its powers in respect of the said appeal; ordered that the case between the parties be transferred from the Sharia Court, Barnawa to the Upper Sharia Court, Makera for the case to be heard de novo. It then stands to reason, both legally and logically, that if there is any complaint against any aspect of the proceedings before the Upper Sharia Court, Makera, Kaduna, the proper Court that is competent and vested with jurisdictional powers to exercise either appellate or supervisory jurisdiction thereon is the Sharia Court of Appeal. Definitely, it is not the High Court. This is more so, when the issue, question or subject matter in dispute between the parties in the substantive matter falls squarely within the ambit of Islamic Personal Law.
By virtue of Section 277 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Court saddled with the power and jurisdiction to exercise appellate and supervisory jurisdiction over a Sharia Court or Upper Sharia Court, is the Sharia Court of Appeal of the particular State. For clarification and ease of reference, I seek the indulgence of Your Noble Lordships to reproduce the provision of the said Section 277 (1) of the Constitution and the same is reproduced below as follows:
‘277 (1) The Sharia Court of Appeal of a State shall in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this Section.’ (Underlined mine for emphasis).
The above quoted provision of the Constitution is explicit, clear and stated in an unambiguous term, that the Sharia Court of Appeal of a State is saddled with the responsibility and has the power to exercise supervisory jurisdiction over Sharia Courts of the State.
Therefore, I agree with the learned counsel for the appellant, that the lower Court lacks the jurisdictional competence to entertain the 1st respondent’s action ab initio and therefore acted without any form of requisite jurisdiction and judicial power when it quashed the proceedings and order made by the Upper Sharia Court, Makera, Kakuri in Case No. 5/2016, made on the 7th day of March, 2016. The point should be made clear that a superior Court which cannot exercise appellate jurisdiction over a lower Court, equally lacks the power and/or jurisdiction to exercise supervisory jurisdiction over the lower Court. Where a superior Court lacks the requisite jurisdiction to review the decision of a lower Court that is, if a lower Court’s jurisdiction has not been statutorily made subject to the appellate jurisdiction of a superior Court, the superior Court will have no legal supervisory jurisdiction over the said lower Court.
Where a trial Court or lower Court (as the case may be) has been found to have acted without jurisdiction as being alleged in this case, the entire proceeding(s) of the lower Court being complained of together with its decision or order(s) that emanated or secured therefrom would be considered a nullity as if it has not been made at all. Thus, the decision and/or order(s) would be set aside as void and of no effect whatsoever in law. See the cases of OKOYE & ANOR. VS. CENTRE POINT MERCHANT BANK LTD. (2008) 15 NWLR (PT. 1110) 335; VAB PETROLEUM INC. VS. MOMAH (2013) 14 NWLR (PT. 1374) 284 and EHUWA VS. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) LPELR – 1056 (SC). The point should also be made clear that the proceedings which the 1st respondent complained about was just a single day’s proceeding and not the entire proceeding that took place in the Upper Sharia Court, Makera. In the event that a High Court found that the Upper Sharia Court acted contrary to the laid down rules and procedure, the said High Court does not have the constitutional power to remit the case for continuation.
Let me quickly add that, even if the above issue was resolved against the appellant, this appeal would still have succeeded because the order that the 1st respondent complained off which forms the subject matter of her application at the lower Court was not in any way prejudicial to her and she has not demonstrably shown that she has suffered any loss by virtue of the said order. The order made by the Upper Sharia Court, Makera, Kaduna was simply to bring along one of the children which the parties are battling to take custody of, to Court and no more. She was not directed to handover the child to any person, including the appellant. A Court of justice is inherently empowered in appropriate circumstance to make orders that are tailored to achieve justice in a case brought before it. The 1st respondent can at best be taken to be speculating on the reason behind the order made by the Upper Sharia Court. Thus, from the record of proceedings attached to her application as Exhibit D1, no proceedings was conducted behind or in the absence of her counsel. (See page 37 of the record of appeal.) The 1st respondent’s action at the lower Court, from the facts and the given circumstances of this case, can safely be regarded to have been brought to frustrate, stall and stultify the proceedings of the Upper Sharia Court, Makera, Kaduna in a matter which was commenced in 2011.
Let me also state that I have read the case of OKEAHIALAM (SUPRA) cited and upon which the learned counsel for the 1st respondent placed heavy reliance. I am of the firm viewpoint that the said case is inapplicable as a binding authority in the given facts and peculiar circumstances of the instant case. The facts in the cited case are distinguishable and the principle of law expounded therein are inapplicable and inapposite with regard to the instant case.
Be that as it may, the resolution of Issue No. 1 which borders on jurisdiction in favour of the appellant as done above, the inespascable conclusion is that the 1st respondent’s action filed at the lower Court together with proceedings conducted therein and order obtained thereat, were conducted and obtained without the requisite jurisdiction and they are accordingly struck out and set aside, respectively. This appeal is hereby found by me to be meritorious and it is accordingly allowed. The proceedings of the lower Court and decision handed down on the 24th day of May, 2016 are hereby set aside by me. Being a family matter, parties are to bear their respective costs. Thus, no order is made with regard to costs.
PRONOUNCEMENT
ABBA AJI, JCA (as she then was) presided at the hearing of this appeal on the 30th day of October, 2018 and participated at the conference which was held thereafter and in respect thereof. However, she was subsequently elevated/appointed and sworn in as a honourable Justice of the Supreme Court on the 8th day of January, 2019.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
Appearances:
M. B. Yusuf Esq., with him, I. Yazid Abdussalam Esq.and Z. Yusuf Esq.For Appellant(s)
M. A. G. Hamza Esq. For the 1st RESPONDENT. For Respondent(s)
