GIMBA v. BAWA & ANOR
(2021)LCN/14949(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 10, 2021
CA/A/890/S/2018
RATIO
APPEAL: WHAT IS A NOTICE OF APPEAL
A notice of appeal is the foundation of an appeal against any appealable decision. If a notice of appeal is defective then the Court below would lack legal competence to entertain the appeal. It will strike out the appeal. See RAJI VS. UNILORIN 2018 15 NWLR PT. 1642 AT 235. PER BELGORE, J.C.A.
COURT: JURISDICTION OF THE SHARIA COURT OF APPEAL OF A STATE
The jurisdiction of the Sharia Court of Appeal of a State is limited to matters of Islamic Personal Law. I do not see how the issue validity or otherwise of a notice of appeal relates to Islamic Personal Law in respect of which the Sharia Court of Appeal of a State has jurisdiction. PER BELGORE, J.C.A.
JURISDICTION: WHAT DETERMINES JURISDICTION OF AN APPELLATE COURT
Jurisdiction of an appellate Court is determined by the nature of the claim of the Plaintiff before the trial Court. It is trite that the issue of jurisdiction is important and fundamental and that is why it can be raised at any stage of the proceedings even on appeal. See PETROJESSICA ENTERPRISES LTD. V. LEVENTIS & TECHNICAL COMPANY LTD (1992) NWLR (pt. 244) 675. PER BELGORE, J.C.A.
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALHASSAN GIMBA APPELANT(S)
And
1. NDABAMBO BAWA 2. NDAGI AHMADU RESPONDENT(S)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Niger State Sharia Court of Appeal, Minna, (Now referred to as ” The Court Below”) contained in its ruling delivered on the 4th April, 2016 Coram: Hon Khadi Abubakar Sadiq Hassan and Hon. Khadi Suleiman Abubakar Kutigi and Khadi Saidu Hassan, whereby the Court below after finding that the Appellant has not presented before it, enough material upon which it is called upon to act, went further to also directed the parties to go back to the Upper Sharia Court Lemu (Now referred to as the Lower Court”) in the interest of justice, for the matter to be completed. The Respondents in this Appeal filed an appeal at the lower Court against the decision of the Sharia Court Edozhigi, (Now referred to as “The Trial Court”).
The Respondents filed an appeal against the decision of the trial Court in suit No. ED/CV/2/2013 before the lower Court. The Appellant herein filed a notice of preliminary objection contesting the competency of the notice of appeal filed on the ground that it was filed out of time. The lower Court after hearing the arguments from both parties dismissed the objection and adjourned to hear the substantive appeal on merit.
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Dissatisfied with the decision of the lower Court, the Appellant filed an appeal before the Court below contesting the dismissal of the said preliminary objection.
The Court below after consideration of the arguments canvassed by both parties held inter alia as follows;
“This appeal fail any of the parties who is dissatisfied have the right to appeal to the Court of Appeal, Abuja.”
It is from that decision that this appeal was filed by the Appellant vides a 2 – grounds notice of appeal filed on 27th August, 2018. The relief sought is as follows:-
1. An order setting aside the decision of the Court below (i.e Sharia Court of Appeal, Minna) delivered on 10/7/2018.
2. An order allowing the appeal and declaring the notice of appeal filed at the lower Court (i.e upper Sharia Court Lemu) as incompetent.
The Appellant’s brief was filed and served on Respondents. The Respondents have not filed their brief. Therefore, with the leave of the Court this appeal will be heard and determined solely on the Appellant’s brief.
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In the Appellant’s brief, two issues for determinations were distilled as follows;
1. Whether there can be an appeal without the filing of a valid notice of appeal? (Ground one)
2. Whether the issue of jurisdiction raised by the lower Court was proper in the circumstance? (Ground two)
The Appellant’s issues one and two are adopted in the determination of this appeal. The two issues will be taken together in the determination of this appeal.
ISSUES ONE & TWO (TAKEN TOGETHER)
1. Whether there can be an appeal without the filing of a valid notice of appeal? (Ground one)
2. Whether the issue of jurisdiction raised by the lower Court was proper in the circumstance? (Ground two)
Learned counsel for the Appellant submitted that the complaint of the Appellant at the Court below relates to the notice of appeal filed at the lower Court. The Appellant is challenging the competence of the notice of appeal on the basis that the notice of appeal is the foundation of every appeal and where same is defective, no appeal can stand on such defective notice of appeal. He referred the Court to the cases of;
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COLITO NIG. LTD & 1 ORS. VS. HON. JUSTICE TITI DAIBU & 3 ORS 2010 6 WRN PG 72.
OLU ODE OKPE VS. FAN MILK PLC & 1 OR. 2017 EJSC VOL. 56 PG. 91.
DAVID SABOKE KENTE VS. DARIUS DICKSON ISHAKU & 2 ORS. 2017 EJSC VOL. 76 PG 28.
He argued that the Respondents filed their notice of appeal with a mutilated date reading 28-4-2015 the same day the judgment being appealed against was delivered. The Appellant seeing the discrepancy on the notice of appeal applied to the lower Court for Certified True Copy (CTC) of the said notice of appeal and he was issued with a notice of appeal reading the date 29-5-2015 (i.e more than 30 days after the decision being appealed against was delivered). He referred the Court to page 1-6 of the record.
Learned counsel contended that the said notice of appeal mutilated to read 28-4-2015 and the notice of appeal reading 29-5-2015 are all incompetent. He referred the Court to Order 11 Rule 2 of the Sharia (Civil Procedure) Rules, 2009 of Niger State and the case of ATUCHUKWU VS. ADINDU 2011 LPELR-3821.
He added that the Respondent did not seek to amend the notice of appeal and also the Court below did not pronounce on the validity of the notice of appeal, but rather held that the parties should go back to the Court below to complete the matter.
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Learned counsel argued further that the grounds and reasons for raising issue of jurisdiction by the Court below in its decision is also not clear to the Appellant. He referred the Court to page 41 of the record.
He maintained that the appeal to the Court below (i.e Sharia Court of Appeal) is from the lower Court (i.e Upper Sharia Court Lemu). The subject matter is the validity of a Court process (i.e notice of Appeal) filed at the lower Court. The Court below was also properly constituted. He referred the Court to Section 49 (2) Sharia Administration of Justice Law, 2015 of Niger State and the case of MRS. CHINELO NWAIGWE & 16 ORS. VS. FED. REP. OF NIG. 2009 48 WRN PG 80.
He submitted that where the Court lacks jurisdiction the proper order to be made is that of striking out the case. The Court below rather than striking out the appeal if indeed the issue of jurisdiction is in issue, held that the appeal fails. He referred the Court to the case of COMMERCIAL BANK (CREDIT LYONNAIS) NIG. LTD VS. UNION BANK NIG. PLC 2006 12 WRN PG 75.
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On the basis of all the above, learned counsel urged the Court to resolve all the issues in this appeal in favour of the Appellant.
A notice of appeal is the foundation of an appeal against any appealable decision. If a notice of appeal is defective then the Court below would lack legal competence to entertain the appeal. It will strike out the appeal. See RAJI VS. UNILORIN 2018 15 NWLR PT. 1642 AT 235.
In the instant case, the argument of the Appellant before the Court below is that the notice of appeal filed at the lower Court is defective because it was filed out of time and also it contained a mutilated date.
The evidence on record shows that the issue before the trial Court was that of a landed property. It is not an issue of Islamic personal law.
The appeal from the Upper Sharia Court, Lemu was filed at a wrong forum. The Court below was clearly in error to have assumed jurisdiction over the matter which was manifestly outside its area of jurisdiction as provided in Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
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The jurisdiction of the Sharia Court of Appeal of a State is limited to matters of Islamic Personal Law. I do not see how the issue validity or otherwise of a notice of appeal relates to Islamic Personal Law in respect of which the Sharia Court of Appeal of a State has jurisdiction.
Jurisdiction of an appellate Court is determined by the nature of the claim of the Plaintiff before the trial Court. It is trite that the issue of jurisdiction is important and fundamental and that is why it can be raised at any stage of the proceedings even on appeal. See PETROJESSICA ENTERPRISES LTD. V. LEVENTIS & TECHNICAL COMPANY LTD (1992) NWLR (pt. 244) 675.
In the instant case, learned counsel for the Appellant have busied himself arguing the merit of the case and did not advert his mind to the issue of jurisdiction as apparent from the claim and/or appeal before the Court below.
I would have invited the parties to adduce and address the Court on the issue of jurisdiction, but it will lead to additional costs to the parties and since one of the reliefs sought in this appeal is that of setting aside the decision of the Courts below the Sharia Court of Appeal of Niger State, it is quite safe to set aside
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the decision of that Court and to remit this appeal to the Honourable Chief Judge of Niger State with the directive that the appeal from the Upper Sharia Court of Appeal, Lemu, be heard by the Niger State High Court in its appellate jurisdiction.
In the circumstance, the proceedings before the Sharia Court of Appeal, Niger State, being a nullity, having been conducted without jurisdiction, are hereby set aside.
It is hereby ordered that the appeal from the Upper Sharia Court, Lemu in suit No. USC/LMU/FI/APP/CVC/01/15 be remitted to the Honourable Chief Judge of Niger State for the appeal to be heard by the State High Court in its appellate jurisdiction.
No cost is awarded.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment just read by my learned brother, AHMAD OLAREWAJU BELGORE, JCA was served on me and read through. I am in full agreement with the reasoning and conclusion arrived at by my lord who presided.
I too set aside the proceedings of the Sharia Court of Appeal Niger State for being a nullity, having been conducted without jurisdiction.
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I abide by the consequential order of remittance to Honourable Chief Judge of Niger State for the appeal to be heard by the State High Court in its appellate jurisdiction.
Parties to bear their individual costs of prosecution and defence of the appeal.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Ahmad Olarewaju Belgore, JCA, just delivered. I agree with the reasoning and conclusion reached and I do not have anything to add. I abide by all the orders made therein.
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Appearances:
Sebastine Chii Ugbogu, Esq. For Appellant(s)
…For Respondent(s)
