ALIYU & ANOR v. USMAN & ANOR (2020)

ALIYU & ANOR v. USMAN & ANOR

(2020)LCN/13964(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, February 17, 2020

CA/K/102/2018

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. UMAR ALIYU 2. ADAMA ALIYU GALADIMA APPELANT(S)

And

1. ZAINAB USMAN 2. HON. DIKKO I. ISHAQ (The Upper Shariah Court Judge Tudun-Wada, Kaduna) RESPONDENT(S)

RATIO

DEFINITION OF THE TERM “CERTIORARI”

Certiorari was extensively defined by the Supreme Court in the case of Onyekwuluje v Benue State Government (2015) 16 NWLR Part 1484 Page 40 at 89-90 Para G-F, per Kekere-Ekun, JSC as follows:
“The writ [of certiorari] is issued in order that the Court may bring the proceedings of the inferior tribunal or Court before it for inspection and if there is due cause disclosed to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity.” In Judicial Service Commission of Cross River State v Young (2013) 11 NWLR Part 1364, 1, His Lordship Fabiyi, JSC referred to the textbook, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1995 edition) by T. Akinola Aguda at pages 654-655, wherein the learned author (of blessed memory) stated the purport of an order of certiorari as follows:
“Certiorari is one of the prerogative writs whose main function is to ensure that inferior Courts or anybody entrusted with performance of judicial or quasi judicial functions keep within the limits of the jurisdiction conferred upon them by statutes which create them.
Therefore, an order of certiorari will lie to remove into the High Court for purpose of being quashed any judgments, orders, convictions or other proceedings of such inferior Courts or body, civil or criminal made without or in excess of jurisdiction.”
Contributing, Rhodes-Vivour, JSC at page 618 E-G (supra) held:
“Certiorari is one of the prerogative writs, the other mandamus, used by the Courts to restrain the abuse or misuse of power, or to correct errors of law, wrong exercise of discretion by tribunals, public authorities and Government Officials. Once a public authority acts judicially or administratively, its conduct is subject to control by the Courts by means of certiorari or mandamus.”PER ADEFOPE-OKOJIE, J.C.A

LIMITED JURISDICTION OF THE SHARIA COURT LAW OF KADUNA STATE

Section 23(2) (a) and (b) of the Sharia Court Law of Kaduna State provides as follows:
“(2) All causes or matters other than Land causes shall be tried and determined by a Sharia Court which has jurisdiction over the area:
(a) In which the defendant is ordinarily resident; or
(b) In which the defendant was at the time when the cause of action arose.”
The trial Court, as noted by the lower Court, in the judgment above, following questions put to the Appellants, was satisfied that the cause of action took place within its jurisdiction. It is clear from this statute that the determinant factor for consideration is not only the place where the Appellants reside but where the cause of action arose. I hold that the lower Court rightly held in favour of the propriety of the decision of the lower Court on the jurisdiction of the Court. PER ADEFOPE-OKOJIE, J.C.A.

THE PRINCIPLE OF FAIR HEARING

Fair hearing, simply put, is the right of a party to be heard before any adverse decision is taken against him. See Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR Part 1466 Page 197-198 Para G-B per M.D. Muhammad JSC; Assams v. Ararume (2016) 1 NWLR Part 1493 Page 368 at 389-389 Para H-A per Rhodes-Vivour JSC. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF THE LOWER COURT

It is settled that where there is sufficient evidence to support concurrent findings of fact by two lower Courts, such findings should not be disturbed unless there is a substantial error apparent on the record, that is, the findings have been shown to be perverse, or some miscarriage of justice or some material violation of some principle of law or of procedure is shown. See Nitel Ltd v Okeke (2017) 9 NWLR Part 1571 Page 439 at 471 Para A-B per Peter-Odili JSC; Lewis v United Bank for Africa Plc (2016) 6 NWLR Part 1508 Page 329 at 349 Para A-E per Kekere-Ekun JSC. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Kaduna State delivered on 19/12/2017 in which the Court dismissed the appeal of the Appellant in his bid to quash the decision of the Upper Sharia Court Tudun Wada, Kaduna.

The facts leading to this appeal are that the 1st Respondent, as Plaintiff, filed a suit before the Upper Sharia Court, Tudun Wada (hereafter referred to as “the trial Court”), claiming the custody of her children, all male and minors born during the subsistence of her marriage to the 1st Appellant. She claimed that after the divorce, the 1st Appellant took away one of the children to Abuja and placed him under the custody of the 2nd Appellant, while he resided in Minna, Niger State. Both parties were in agreement that the marriage was contracted in Kaduna State. The Appellants filed a Preliminary Objection before the trial Court, asking the Court to decline jurisdiction. The trial Court, coram Hon. Dikko I. Ishaq, the 2nd Respondent, however assumed jurisdiction and granted the Respondent custody of the children.

Aggrieved, the Appellants filed an application before the High Court of Kaduna State (hereafter referred to as “the Lower Court”) for an Order of Certiorari to quash the judgment of the trial Court, for lack of jurisdiction and for violation of their fundamental human rights to fair hearing. The Lower Court, as aforesaid, dismissed the application and affirmed the decision of the trial Court. Further aggrieved, the Appellants have appealed to this Court, by a one ground Notice of Appeal filed on 10/1/18.

In prosecution of the appeal, the Appellants filed a Brief of Arguments on 6/3/18, settled by Mohammed Ndayako, Esq. in which a sole issue was formulated for determination, namely:
Whether having regards (sic) to the entire circumstances of this case, the learned trial Court was correct to have dismissed the Appellants’ application for Certiorari dated 3rd May 2017.

In opposition, the 1st Respondent filed a Brief of Arguments on 8/5/18 settled by A.S. Ibrahim, in which learned Counsel adopted the lone issue for determination distilled by the Appellants.
I shall accordingly adopt this issue as the issue for determination.

Arguing this issue, the Appellants, quoting from the judgment of the lower Court, accused the lower Court of failing to take into consideration the clear and unambiguous provisions of Section 23 (2) of the Sharia Courts Law of Kaduna State which, by Section 23(2)(a) and (b), stipulate that the Upper Sharia Court, in all causes and matters, other than land matters shall only exercise jurisdiction if the Defendant ordinarily resides within its jurisdiction or if the Defendant was within the Court’s jurisdiction when the cause of action arose. He submitted that from the Record of Proceedings and the submissions of the Respondent’s Counsel at the trial Court, the Appellants are residents of Minna, Niger State and Abuja FCT respectively. The Upper Sharia Court thus had no jurisdiction in a matter involving the Appellants, no matter how well conducted, citing the cases of Braithwaite v Skye Bank Plc (2013) 15 WRN 27 at 42, Okoli v A/G Anambra State (2015) 20 WRN 33 at 53 and Onyekwuluje v Benue State Govt (2015) 43 WRN 1 at 51-53. The trial Judge was thus wrong to have dismissed the Appellants’ application for Certiorari, as

the entire proceedings before it was a contravention of Section 23(2)(a) and (b) of the Sharia Court’s Law of Kaduna State and thus a nullity.

Learned Counsel further complained that the lower Court also erred in holding that the Appellants were given fair hearing pursuant to Section 36 of the Constitution, when in fact there was no trial, no witnesses called, rather arguments were merely taken for the Counsel on the issue of jurisdiction only. He cited Kur v Fannami (2011) 1 NWLR Part 1228 Page 287; Hada v Malumfashi (2013) 1 SQLR Part IV Page 1; NNPC v Clifco (Nig) Ltd (2011) ALLFWLR Part 583 Page 1879.

The Respondent’s Counsel, however accused the Appellants of failing to take cognizance of Section 23(1) of the same Law which states that the place of trial shall be determined in accordance with the provisions of the Sharia Court Rules and that the Sharia Court (Civil Procedure) Rules 2010, provides in Order 11 that the Court shall continue hearing in accordance with Islamic Law and practice of the Maliki school. This, he said was followed by the trial Court, which adduced verses of the Qur’an conferring jurisdiction on the

Court to decide the matter of custody under the Islamic Law, even if the father resides outside its territorial jurisdiction, so long as the marriage was contracted within the Court’s territorial jurisdiction. He contended that the High Court was therefore right to have held that the trial Court delivered a ruling on jurisdiction and was accordingly justified in dismissing the Appellants’ application for Certiorari. He submitted further that the proper procedure for the Appellants was to appeal to the Sharia Court of Appeal, citing Ogene v Ogene (2008) All FWLR Part 403 Page 1326.

In Judicial Service Commission of Cross River State v Young (2013) 11 NWLR Part 1364, 1, His Lordship Fabiyi, JSC referred to the textbook, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1995 edition) by T. Akinola Aguda at pages 654-655, wherein the learned author (of blessed memory) stated the purport of an order of certiorari as follows:
“Certiorari is one of the prerogative writs whose main function is to ensure that inferior Courts or anybody entrusted with performance of judicial or quasi judicial functions keep within the limits of the jurisdiction conferred upon them by statutes which create them.
Therefore, an order of certiorari will lie to remove into the High Court for purpose of being quashed any judgments, orders, convictions or other proceedings of such inferior Courts or body, civil or criminal made without or in excess of jurisdiction.”
Contributing, Rhodes-Vivour, JSC at page 618 E-G (supra) held:
“Certiorari is one of the prerogative writs, the other mandamus, used by the Courts to restrain the abuse or misuse of power, or to correct errors of law, wrong exercise of discretion by tribunals, public authorities and

Government Officials. Once a public authority acts judicially or administratively, its conduct is subject to control by the Courts by means of certiorari or mandamus.”

In the instant case, the lower Court, before arriving at its decision, referred to the Preliminary Objection filed by the Appellants before the trial Court and the allegation of lack of fair hearing. It observed as follows:
“Counsel for parties formulated issues for determination for the Applicants, it is a sole issue while for the Respondent two issues, they are as reproduced inter alia. As stated inter alia there are 4 grounds upon which the reliefs are sought. The issues as formulated by counsel for parties all boil down to one issue which is if the Applicants were denied fair hearing and thus the 2nd Respondent is in want of jurisdiction thereto. In treating this application all that this Court requires is the record of Lower Court.
On page 2 of Exhibit A1, i.e. the record of proceeding of the 2nd Respondent/Lower Court therein, the counsel to the Defendant therein and the 1st Applicant, herein raised the jurisdiction of the Court wherein he contended that the said suit was

incompetent because it showed that the Defendant, i.e. the 1st Applicant herein, is living outside the jurisdiction of the 2nd Respondent’s Court. It was his further contention therein, that even the Plaintiff therein was and is still in Bida and that the divorce was pronounced only once and that she was still within the waiting period and that the issue of custody was premature and that she will only have the right to ask for custody after her waiting period from the divorce.
To this the 1st Respondent’s Counsel herein objected to and asked for a date to reply thereto and the case was thus adjourned to the 10/04/17 for the reply. On that date, the 1st Respondent’s Counsel responded extensively and the Applicant’s Counsel replied on point of law. See pages 3 – 6 of Exhibit A1 thereof. See the question and answer thereto at page 6 thereof, wherein the following was recorded.
“Q. Did you agree that the marriage took place in Kaduna.
A. Very well my lord.”
Upon the above the 2nd Respondent thus ruled thereto, wherein he stated as follows:
Upon acceptance made by the counsel to the Defendant and accepted

that the marriage took place at Kaduna. I, the Honorable Judge of Upper Sharia Court Tudun Wada, Kaduna, Dikko I. Ishaq accepted the verse quoted by the counsel to the Plaintiff on jurisdiction concerning custody and gave (sic) such order as follows:
“Thamaruddaishafi (verse) 491
Translation:
Right of custody is vested on the mother, for the male child until he is matured and for the female until she got married and the marriage is consummated.”
From the Ruling reproduced hereinabove, it is very clear as submitted by the 1st Respondent’s Counsel that the 2nd Respondent heard all the arguments of learned counsel to the parties on jurisdiction, delivered the ruling thereto and stated his position clearly on the issue of jurisdiction, wherein he assumed jurisdiction and/or stated that he has jurisdiction and went on and decided the substantive suit. See paragraph 4b, c, d, e and f of the counter affidavit of the 1st Respondent. See also paragraph 4(g) of the counter affidavit wherein it is deposed thus:
“4(g) That having found out that the fact in issue in the case were not in dispute, since all the parties were

unanimous that the marriage was contracted in Kaduna, two children whose custody is in issue were sired (sic) by both the 1st Respondent and the 1st Applicant during the subsistence of the marriage and that finally the marriage was dissolved by way of divorce and also that the 1st Respondent has informed the Court that she has finished the prescribed waiting period by the Sharia, and that custody of the children has automatically become the sole issue to determine and that being the only substantive matter before him, the trial judge went ahead and finally determined the custody of the children in favour of the 1st Respondent in strict and full compliance with the MALIKI SCHOOL OF THOUGHT which is the guiding principle on Islamic Procedure for the trial Court to follow and in compliance with the practice of Prophet Muhammad, Peace be Upon Him.”
The said averment is in consonance with the record in Exhibit ‘1’.
It is thus my humble view from the foregoing that the Applicants were given adequate fair hearing as enshrined under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended and so also under the Law thereto and I so hold.”

The question is thus, whether the lower Court was right in holding that the trial Court kept within the limits of the jurisdiction conferred upon it by statute which create it and did not act in excess of jurisdiction and observed the principles of fair hearing.
Section 23(2) (a) and (b) of the Sharia Court Law of Kaduna State provides as follows:
“(2) All causes or matters other than Land causes shall be tried and determined by a Sharia Court which has jurisdiction over the area:
(a) In which the defendant is ordinarily resident; or
(b) In which the defendant was at the time when the cause of action arose.”
The trial Court, as noted by the lower Court, in the judgment above, following questions put to the Appellants, was satisfied that the cause of action took place within its jurisdiction. It is clear from this statute that the determinant factor for consideration is not only the place where the Appellants reside but where the cause of action arose. I hold that the lower Court rightly held in favour of the propriety of the decision of the lower Court on the jurisdiction of the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Appellants’ Counsel also alleges that their right to fair hearing was breached, as the decision was reached by the trial Court bereft of the calling of evidence. It is however quite clear from the proceedings before the lower Court, reproduced in the judgment of the lower Court, that the trial Court heard all the arguments of Counsel before making its pronouncement. Fair hearing, simply put, is the right of a party to be heard before any adverse decision is taken against him. See Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR Part 1466 Page 197-198 Para G-B per M.D. Muhammad JSC; Assams v. Ararume (2016) 1 NWLR Part 1493 Page 368 at 389-389 Para H-A per Rhodes-Vivour JSC. This, as clearly shown in the judgment of the trial Court, was observed, as the arguments of both Counsel were taken before a decision was reached. Hearing the other side does not necessarily mean that evidence must be taken, as Appellants’ Counsel is suggesting. Both sides must however be heard before any decision is taken, which was clearly the case in this instance. Furthermore, the Appellants did not request to call evidence and were denied. The lower Court, I

accordingly hold, rightly dismissed the Appellants contention of lack of fair hearing.

The lower Court, I thus hold, was correct to have dismissed the Appellants’ application for Certiorari.
Having resolved the sole issue for determination in this case against the Appellants, this appeal fails and is hereby dismissed, with costs of N100,000.00 against the Appellants and

in favour of the 1st Respondent. The Judgment of the lower Court delivered on 19/12/2017 dismissing the Appellants’ appeal, is accordingly affirmed.

SAIDU TANKO HUSSAINI, J.C.A.: I had a preview of the lead judgment just delivered by my Lord, Oludotun Adebola Adefope-Okojie, JCA, with whom I agree with the reasoning and conclusions, that the appeal lacks merit and the same be dismissed. I so order.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the judgment delivered by learned brother, Oludotun Adebola Adefope-Okojie, JCA.

I adopt the reasoning and conclusion reached therein that there is no merit in this appeal.
Same is also dismissed by me, with costs assessed at N100,000.00 against the Appellants in favour of the 1st Respondent.

Appearances:

I. Mustapha For Appellant(s)

1st and 2nd Respondents not represented. For Respondent(s)