ABDULLAHI v. KATSAYEL & ANOR
(2020)LCN/14642(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, September 24, 2020
CA/K/92/S/2011
RATIO
PLEADINGS: CONSTITUTION, COMPOSITION AND JURISDICTION OF THE SHARIA COURT.
Section 4(1) of Sharia Court Law 2000 of Katsina State provide, thus:
“A Sharia Court shall properly be constituted if presided over by an Alkali sitting with two members.”
The position taken by the Appellant with reference to the Constitution or composition of the trial Court on the 10th February, 2006 at pages 1 and 10 of the record of appeal, rendered the judgment of the trial Court null and void for non-compliance with provisions of Section 4(1) of the Sharia Court Law for lack of Quorum. In this case on appeal, only one (1) person signed the judgment on 23rd August, 2006 and this, in my view is not the intendment of Section 4(1) of the law. There is failure of compliance with that provision of the law. In this case only the Presiding Judge (presumably) signed that proceedings of the 23rd August, 2006 and not the other members hence there is failure of compliance with the law and this failure nullifies the entire proceedings for want of Quorum; By extention, the trial Court also acted without jurisdiction.
Section 10 of the Sharia Court of Appeal Law to which my attention was brought or drawn cannot be invoked or relied upon to validate actions or proceedings of Court which otherwise are a deemed not to have ever taken place. Such are not the category of cases over which the Sharia Court of Appeal acting under Section 10 can exercise general powers, relative to the powers and jurisdiction of the Courts from where the appeal emanated.
Having said so, I want to add that the importance of signing a document or process should not be under estimated or taken with levity. It is the signature that authenticates a document or process as true or genuine. By dint of that signature, the person signing it has affirmed that the contents of that document or process signed by him are true or correct. It is also an affirmation that he participated or partook in the proceedings in question, in line with the relevant laws: Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89. In the absence of the signature of the person, who is expected or required to append his signature, the presumption is that he did not participate in those proceedings. If for the reason of his absence, the required quorum of Court was not made out, then the proceedings, automatically, are a nullity for want of Quorum. By Section 4(1) of the Sharia Court Law, the quorum of members for sitting, is the Judge and 2 members. In the instance case on appeal, the proceedings of the 23rd August, 2006 was Constituted by just one person, i.e the Judge alone. There is thus, absence of Quorum, and this absence has nullified the entire proceedings: Saraki v. FRN (2016) LPELR-40013 (SC). The issue of jurisdiction of Court or lack of it, as stated before, can be taken at any time or stage of proceedings without leave of Court being first sought and granted as argued by the learned counsel for the Respondent in his brief of argument. However in all cases where fresh issues are taken up at the appeal Court, the same should only be entertained upon leave being first sought and granted. This point or question should not be confused or equated with a case such as this, where the question before the Court centre on the jurisdiction of Court, which issue can be taken at any time and howsoever. See: Mogaji v. Cadbury Nig. Ltd (1985) LPELR-1889 (SC) Deborah v. Okonkwo (1982) II SC 74; 94. This is an exception to the rule that leave to appeal Court should be sought and granted, before fresh issues can be taken or entertained at that Court.
Therefore on the question whether or not there was proper Quorum at the trial Court in the proceedings leading to judgment on 23rd August, 2006, the same should be answered in the negative in favour of the Appellant and against the Respondents. In Madukolu v. Nkemdilim (supra), the Apex Court held at page 589 – 510 that:
“a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. Per SAIDU TANKO HUSSAINI, J.C.A.
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
AUWALU ABDULLAHI APPELANT(S)
And
1. HAFSATU KATSAYEL 2. SAIDA KATSAYEL RESPONDENT(S)
SAIDU TANKO HUSSAINI, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the Sharia Court of Appeal of Katsina State, Daura Judicial Division, the Court below, delivered on the 21st August, 2007; a decision which affirmed the judgment of the Upper Sharia Court delivered on the 11th June, 2007. The Appellant herein dissatisfied with the judgment of the Sharia Court of Appeal, appealed to this Court vide the Notice of Appeal dated the 17th September, 2017 on Four (4) Grounds as set out in the Notice at pages 41-43 of the Record of Appeal.
The case leading to this appeal was initiated by the Respondents at the Sharia Court sitting on Sandamu. Their claim at that Court against the present Appellant, then the defendant is for the distribution of the Estate of their late father comprising Four (4) farmlands and One (1) house. The Appellant denied the claim stating that the Estate of their late father comprised of Two (2) farmlands and One (1) house only, excluding the farmlands given to him (Appellant) by their late father.
The trial Court took evidence of witnesses from parties on both sides so as to ascertain whether
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indeed their late father gave the other two farmlands to the Appellant. The Appellant (as defendant) called evidence of Two (2) witnesses and one other person who was summoned to testify at his request. Respondents (as plaintiffs) similarly called evidence of two witnesses. The trial Court at the close of evidence found in favour of the plaintiffs now Respondents when the Court found and ordered as follows:
“I Aliyu Mohammed Badaru, SSC1, Sharia Court Sandamu and 2 Court members. I confirm the distribution on relying upon Holy Qur’an Verse 11-12 Suratul Hisa because Allah (SWT) shared inheritance himself for the interest of justice.
The Court merged the guilt made to Auwalu in relying statement by witnesses and whit was cited by Mai Risala”
See page 10 of the record of appeal of the English version of the proceedings of the Sharia Court, Sandamu.
The Appellant appealed against that decision to the Upper Sharia Court and lost. His appeal to the Sharia Court of Appeal equally failed hence a further appeal to this Court.
In the brief of argument prepared on behalf of the Appellant, vide the amended Appellant’s
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brief of argument filed on the 5th May, 2020 and deemed filed on the 29th June, 2020, by Tajudeen O. Oladoja, (LB) identified just One (1) issue for determination as follows:
“Whether the trial Court had requisite jurisdiction to adjudicate on this matter as it did.”
This issue was distilled from Ground 1 of the Notice of appeal. Respondents, in the same vein, through their counsel M. O. Abdulrahseed filed the Respondents brief of argument on the 5th May, 2020 wherein the following Two (2) issues were earmarked and set down for determination, namely:
“1. Whether the trial Court was properly constituted to adjudicate over this matter (distilled from issue One).
2. Whether the trial Court judgment sought to be quashed is in line with settled principles of Islamic law? (Distilled from issue (sic) two and three).”
In Response to the brief filed by the Respondent, the Appellant filed a Reply brief on the 1st July, 2020. Learned counsel appeared before us on the 1st July, 2020 at the hearing to adopt their respective briefs of argument.
Appellant’s Issue No 1 and Respondents’ Issue No 1 both raise
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jurisdictional questions, hence the same can be accommodated, addressed and considered under one heading as such.
The Appellant arguing Issue No. 1 through his counsel, challenged the jurisdiction of the trial Court, stating that the Court, at the time it sat to take decision/judgment, it was not properly constituted contrary to Section 4(1) of the Katsina State Sharia Court Law 2000, Cap 173 Laws of Katsina State, hence the trial Court lacked jurisdiction to entertain the matter, citing a number of decided cases including the decision in Madukolu v. Nkemdilim (1962) 1 ALL NLR 587; Skenconsult (Nig) Ltd & Anor v. Godwin Ukey (1981) 1 SC 6; Leedo Presidential Motel Ltd v. BON Ltd (1998) 10 NWLR (Pt. 570); UTIH v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166, 202; Shelim v. Gobang (2009) 12 NWLR (Pt. 1156) 435.
In reference to Section 4(1) of the Katsina State Law Cap. 173 and pages 1 and 10 of the record of appeal, it was argued that the Court was not properly constituted by reason of the absence of two (2) members at the time or date of sitting. He argued that it was the Alkali (Presiding Judge) who sat alone and took decisions alone contrary to
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Section 4(1)of the Law hence the trial Court in that circumstance lacked jurisdiction over the case.
Issue of Jurisdiction, according to the Respondents in their brief of argument, is a pivotal issue and where a Court lacks jurisdiction any decision taken by it, is a nullity. We were referred to the decision in Attorney – General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 627); UTIH v. Onoyivwe (1991) 1 NWLR (Pt. 166), 166, 206. We were however urged by Respondent’s counsel to look at the Record of Proceedings in its entirety including the Hausa version and the English Translation in order to come to a just conclusion on the question whether or not the trial Court was properly constituted. In this regard we were referred to the Hausa version of the proceedings of the trial Court starting for page 11 lines 1-7 and to compare same to page 1 line 3, we were urged to hold that the English translation did not fully reflect the proceedings in the Hausa version where the composition of the names of the Judges were fully set out and reflected at page 11 including the names of the presiding Judge and members. We were further referred to page 20 line 32 based
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on which it is argued, that the Judge sat with two (2) members hence there was compliance with Section 4(1) of the Katsina State Sharia Court Law 2000 Cap.173.
By way of alternative submissions, we were referred to S. 10 of the Sharia Court of Appeal Law and by reason of which counsel to the Respondent argued that the Sharia Court of Appeal can exercise and assume original jurisdiction while sitting on appeal in a matter that the Sharia Court has original jurisdiction. Hence, the Sharia Court of Appeal can exercise both Appellate and original jurisdiction over the matter emanating from a trial Court while sitting on appeal. We were referred to page 35 of the record. It was argued for the Respondent that the Sharia Court of Appeal exercised that power when it directed parties before it to restate their case and make further clarifications to the Court (Sharia Court of Appeal).
The issue of Quorum, it is further argued, was not made a ground of appeal and this being a new issue raised for the first time in this Court, leave of Court was necessary, in reference to the decision in Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, 478; The Provost & 2 Ors v. Saliu & 2 Ors (2016) SQLR (Pt. 111) 509, 527.
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We were urged to discountenance Appellant’s argument on the issue of lack of jurisdiction by the trial Court.
The Respondent formulated a 2nd issue in the brief of argument wherein it was contended that the Appellant having failed to prove that the other farmlands were gifts from their late father, the trial Court was right to revert those farmlands to the Estate of their late father so far as the Appellant had not proved that he had taken possession of those farmlands. We were referred to decisions in Saidu Adamu v. Mallam Abdullahi Nda (2014) 2 SQLR (Pt. 1) 119. Sani Ibrahim & 5 Ors v. Hajia Gambo & 5 Ors. (unreported) CA/K/177/5/2009.
In the Appellant’s Reply brief filed on the 1/7/2020, we were urged to hold that issue relating to Jurisdiction of Court can be taken at any stage and argued even on appeal hence the decision cited by the Respondents in Salami v. Mohammed (supra) and the Provost & 2 Ors v. Saliu & Ors (supra) were not applicable to the appeal at hand. Being on issue of Jurisdiction, leave of Court, it is argued, was not necessary as a precondition for leaving the appeal.
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I will first take on the issue, of the Jurisdiction of Court. This is issue No. 1 as raised by counsel on both sides in their respective briefs of argument.
Issue of Jurisdiction, no doubt, is a pivotal question, and being a question which goes to the very foundation of the case without which the superstructure will necessarily collapse. Issue of jurisdiction comes in different colours as in the competence or otherwise of the action or suit, before the Court, competence or otherwise of the person or party bringing the action or suit; the validity of the composition or Constitution of the Court. All these directly affect the exercise of Jurisdiction by the Court. In other cases, the subject-matter before the Court is such that the Court cannot adjudicate over it for want of Jurisdiction.
The instant case on appeal is/was founded on the question of Quorum at the trial Court that is, whether the trial Court was properly constituted as at the date Judgment was delivered on the 23rd August, 2006. I refer to Ground 1 of the Notice of Appeal read along with particular (a).
For the avoidance of doubt, Ground 1 of the Notice of
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Appeal and particular (a) which accompany the Ground read thus:-
“Ground One
That the Sharia Court of Appeal erred in Law for failing to overturn the decisions of the Sharia Court Sandam did that of the Upper Sharia Court, Daura as the decision of the trial Court was void and a nullity as initio.
PARTICULARS
(a) The trial Court Sandamu heard the case with only one Judge contrary to Section 4 (1) of the Sharia Court Law 2000 of Katsina State.
(s) X X X X X X X X
(l) X X X X X X X X”
Section 4(1) of Sharia Court Law 2000 of Katsina State provide, thus:
“A Sharia Court shall properly be constituted if presided over by an Alkali sitting with two members.”
The position taken by the Appellant with reference to the Constitution or composition of the trial Court on the 10th February, 2006 at pages 1 and 10 of the record of appeal, rendered the judgment of the trial Court null and void for non-compliance with provisions of Section 4(1) of the Sharia Court Law for lack of Quorum.
I can observe here that the proceedings of the trial Court covered at pages 1-10 are the translated (English)
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version of the proceedings in Hausa Language. The actual proceedings of the trial Court is that taken in Hausa Language and these are at pages 11-20 of the record of Appeal, by which, at page 11, of the said record, names of the Presiding Judge and members who sat to conduct proceedings of the trial Court on 10th July, 2006 was stated as follows:
“M/Sharia:- Aliyu Mohammed Badaru,
M. Sai’du Garba and M. Ahmed”.
That was on the 10th July, 2006 only. The trial Court judge at the sitting on the 23rd August, 2006 alluded to the fact that the Court was constituted by himself and 2(two) other members on the date that judgment or decision was delivered and signed. Given the proceedings covered by the Hausa version of the record of proceedings, can it be said that the provision of Section 4(1) of the Sharia Court Law 2000 of Katsina State has been complied with? That is the question. I will start with reference to the proceeding of the 10th July, 2006 of which the Quorum of the Court on the said date was constituted by the Presiding Judge and 2 members only and that is that for the day and for that sitting alone.
On the 23rd August, 2006, the day (date) that
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judgment (Hukunchi) was given, or delivered, this composition of panel members was not so reflected on the record. See page 20 of the record of appeal. Even though the trial Court Judge in his judgment alluded to the membership of the Court as at the date judgment was given, or delivered, I do not think that is good enough to meet the requirements of Section 4 of the law. Worse still is the fact that the proceedings of the 23rd August, 2006, the date judgment (hukunchi) was delivered, was signed by a single person. That is not what it should be. All persons who constitute a panel of judges are required to sign the proceedings of which they participated in or partook in the deliberation leading to judgment.
In this case on appeal, only one (1) person signed the judgment on 23rd August, 2006 and this, in my view is not the intendment of Section 4(1) of the law. There is failure of compliance with that provision of the law. In this case only the Presiding Judge (presumably) signed that proceedings of the 23rd August, 2006 and not the other members hence there is failure of compliance with the law and this failure nullifies
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the entire proceedings for want of Quorum; By extention, the trial Court also acted without jurisdiction.
Section 10 of the Sharia Court of Appeal Law to which my attention was brought or drawn cannot be invoked or relied upon to validate actions or proceedings of Court which otherwise are a deemed not to have ever taken place. Such are not the category of cases over which the Sharia Court of Appeal acting under Section 10 can exercise general powers, relative to the powers and jurisdiction of the Courts from where the appeal emanated.
Having said so, I want to add that the importance of signing a document or process should not be under estimated or taken with levity. It is the signature that authenticates a document or process as true or genuine. By dint of that signature, the person signing it has affirmed that the contents of that document or process signed by him are true or correct. It is also an affirmation that he participated or partook in the proceedings in question, in line with the relevant laws: Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89. In the absence of the signature of the person, who is expected or required to append his
12
signature, the presumption is that he did not participate in those proceedings. If for the reason of his absence, the required quorum of Court was not made out, then the proceedings, automatically, are a nullity for want of Quorum. By Section 4(1) of the Sharia Court Law, the quorum of members for sitting, is the Judge and 2 members. In the instance case on appeal, the proceedings of the 23rd August, 2006 was Constituted by just one person, i.e the Judge alone. There is thus, absence of Quorum, and this absence has nullified the entire proceedings: Saraki v. FRN (2016) LPELR-40013 (SC). The issue of jurisdiction of Court or lack of it, as stated before, can be taken at any time or stage of proceedings without leave of Court being first sought and granted as argued by the learned counsel for the Respondent in his brief of argument. However in all cases where fresh issues are taken up at the appeal Court, the same should only be entertained upon leave being first sought and granted. This point or question should not be confused or equated with a case such as this, where the question before the Court centre on the jurisdiction of Court, which issue can be
13
taken at any time and howsoever. See: Mogaji v. Cadbury Nig. Ltd (1985) LPELR-1889 (SC) Deborah v. Okonkwo (1982) II SC 74; 94. This is an exception to the rule that leave to appeal Court should be sought and granted, before fresh issues can be taken or entertained at that Court.
Therefore on the question whether or not there was proper Quorum at the trial Court in the proceedings leading to judgment on 23rd August, 2006, the same should be answered in the negative in favour of the Appellant and against the Respondents. In Madukolu v. Nkemdilim (supra), the Apex Court held at page 589 – 510 that:
“a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
I so hold. Having therefore taken the position as I
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did above, issue No. 2 formulated by the Respondents in their brief of argument becomes as mere academic question, not worthy for any consideration, See: Owners of the MV. Arabella v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182.
The appeal in effect succeeds and same is allowed. The judgment of the Sharia Court of Appeal delivered on the 21st August, 2007 is set aside. I order for a retrial, at the Upper Sharia Court Katsina State.
Ordered accordingly.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour to read in advance, the judgment of my learned brother Sa’idu Tanko Husaini, JCA. I agree with the entire reasoning therein and conclusion that the appeal has merit and should be allowed. It is hereby allowed. I also adopt the consequential orders made in the judgment.
ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now, the lead judgment of my learned brother S. T. HUSAINI JCA. I agree with his reasoning and conclusions. The Crux of this appeal is the competence of the trial court to adjudicate in the matter, in view of Section 4(1) of Sharia Court Law 2000 of Katsina state which provides: “A Sharia Court shall properly be constituted if presided over by an Alkali sitting with two members”.
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On the 23rd August, 2006 when judgment was delivered, the Court was not properly constituted hence the composition of panel members was not so reflected on the record. And the proceedings was signed by a single judge. See page 20 of the record of appeal. The case of MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 is a locus classicus on the issue of jurisdiction. The apex Court held thus
“A Court is competent when
1. It is properly constituted as regard numbers and qualification of the members of the branch and no member is disqualified for one reason or another.
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It is crystal clear that the trial Court lacked the competence to adjudicate on the matter.
Without much ado, the appeal succeeds and it is allowed.
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I abide by the consequential orders in the lead judgment.
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Appearances:
Tajudeen O. Oladoja, with him, Fausat Abdulsalam, Olamide Oloje (Miss), Barnabas John and Zainab Yusuf Dogara Esq. For Appellant(s)
Muritala O. Abdul-Rasheed, with him, B. S. Kpenkpen, H. P. Theophilus and M. M. Kaigama Esq. For Respondent(s)
