JAMAARE v. JAMAARE & ORS (2022)

JAMAARE v. JAMAARE & ORS

(2022)LCN/16931(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Tuesday, March 22, 2022

CA/J/150/2020

Before Our Lordships:

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal

Between

SALISU ABDU JAMA’ARE APPELANT(S)

And

1. ALI ISA JAMA’ARE 2. THE PRESIDING JUDGE SHARIA COURT 1 JAMA’ARE 3. THE REGISTRAR SHARIA COURT 1 JAMA’ARE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON PREROGATIVE WRIT OF CERTIORARI

In providing answer to the question raised hereinbefore, I consider it proper to bring to bear what it entails to request and for the grant of an order of certiorari. The prerogative writ of certiorari is a form of a judicial review wherein the High Court exercises its supervisory jurisdiction to review the proceedings, decisions of inferior Courts and acts of governmental bodies. The usual available remedies are orders of mandamus, certiorari and prohibition and in some instances also the writ of habeas corpus. Therefore, in judicial review, the Court is usually concerned with the legality and not with the merit of the proceeding, decision or acts of the affected inferior Court, Tribunal or governmental body. The exercise of this power by the superior Court of record is recognized as an aspect of the jurisdiction of the Courts. See A.G FEDERATION V AGWUNA (1995) 4 NWLR (Pt. 388) 234. Put in another way, an order of certiorari or prohibition will lie against anybody or person having a legal duty to determine question affecting the right of subjects wherever the duty implies, wherever the powers vested in the body or person are such that the exercise of that power may adversely affect the interest of citizens, there clearly exists a duty on the body or person to act fairly, otherwise an order of certiorari will lie to quash the decision. In addition to the foregoing, where also an administrative tribunal departs from mere administrative or executive function and acts judicially by deciding on the right and obligations of the person affected certiorari will also lie. See STEEL BELL (NIG) LTD V GOVT CROSS RIVER STATE (1996) 3 NWLR (Pt. 438) 571. Where also an inferior Court or Tribunal has the authority to determine questions affecting the right of subjects and having the duty to act judicially or fairly and it acted in excess of its legal authority, an order of certiorari will also lie. See EKPO V CALABAR LOCAL GOVERNMENT (1993) 3 NWLR (Pt. 281) 324, UNIVERSITY OF UYO & ORS V. ESSEL (2006) ALL FWLR (Pt. 315) 80 at 96. Therefore, an order of certiorari is to correct errors of an inferior tribunal and quash erroneous decisions. See CHIEF A. ABU AND ORS V CHIEF A.Z. ODUGBO AND ORS (2001) FWLR (Pt. 69) 1260 at 1283, AWE AND ANOR V G.M. OSUN STATE; NWAOBOSHI V STATE (1998) 10 NWLR (Pt. 568) 131, 152. Let me finally add that certiorari will not lie where a Court or Tribunal acts within its competent jurisdiction but merely committed an error of laws. See JOSEPH OJO AND ORS V VICTINO FIXED ODDS LTD (2001) FWLR (Pt. 42) 93 at 110. PER ONIYANGI. JC.A.

WHETHER OR NOT A COURT CAN ADJOURN TO ANOTHER DATE ONCE IT HAS DELIVERED ITS JUDGEMENT

The question is why the adjournment to another date. It is trite that once a Court of law has delivered its judgment or makes an order in respect of a matter before it, it becomes functus officio. See CITEC INT’L ESTATE LTD & ORS V FRANCIS & ORS (2014) LPELR (SC), EDO-OSAGIE & ORS V COMMISSIONER OF LANDS, MIDWESTERN STATE OF NIGERIA (1973) LPELR – 24932 (SC), ENTERPRISES BANK LTD V AROSO AND ORS (2015) LPELR 24720 (SC), MOHAMMED V HUSSEIN (1998) 11/12 SCNJ 136 at 163-164, OLOWU V ABOLORE (1993) 6 SCNJ (Pt. 1), INAKOJU V ADELEKE (2007) 4 NWLR (Pt. 1025) 423. It is the law and trite that the phrase “functus officio” being a Latin expression simply means “task performed”. In legal or judicial parlance, it means a judge cannot give a decision or make an order on a matter twice. PER ONIYANGI. JC.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the Defendant in the suit filed by the 1st Respondent as Plaintiff before the Sharia Court 1 Jama’are in Suit No. CVF/36/2019 wherein he claimed for the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira).

The fact of the case of 1st Respondent as Plaintiff against the Appellant as Defendant before the Sharia Court 1 Jama’are Bauchi State is that the Appellant and the 1st Respondent had a gentle man agreement to the effect that the 1st Respondent will finance a business venture of buying certain produce call “Madrick” which would be exported to China for an undisclosed Chinese Company. The 1st Respondent offered to finance the purchase of the good called “Madrick”. He then gave the sum of N2,200,000.00 to the Appellant/Defendant. Between them, it was agreed that the Appellant would be remitting to the 1st Respondent the sum of N200,000.00 as profit to be realized from the sale of the said “Madrick”. It was alleged that the Appellant swung into action by purchasing the said “Madrick” which is usually harvested from Jigawa State. The Appellant alleged that due to problems he encountered with the authorities of Gwaram L.G.A of Jigawa State who seized some of the goods (Madrick) despite payment of royalties for the goods. The foregoing situation was said to have been made known to the 1st Respondent who did not agree with the Appellant’s explanation for failing to remit the N200,000.00 monthly profit to him. Hence the 1st Respondent instituted the suit against the Appellant claiming the sum of N2,500,000.00.

Upon service of the processes on the Appellant, parties appeared before the Court and subsequently informed the trial Court (Sharia Court 1 Jama’are) of their move for amicable settlement. The Court rightly facilitated the move and hence the matter was adjourned from 17th of October, 2019 to 7th November, 2019. On that returned date, both parties were adequately represented by Counsel and, the learned Counsel representing the 1st Respondent as Plaintiff intimated the trial Court of their terms of settlement thus:
“AGREEMENT/SETTLEMENT LETTER BETWEEN ALIYU ISAH JAMA’ARE AND SALISU AUDU YUSUF.

Today 25th October, 2019, the Plaintiff and the Defendant sit together with their Counsel and have a stand on their case before the Court: –
(1) The Plaintiff have suit(sic) on the amount of N2,500,000.00 the Defendant is not denying but he paid the sum of N300,000.00 and he is going to pay the sum of N200,000.00 at the end of the month of October, 2019.
(2) The Defendant has promised to pay the remaining (N2,000,000.00) Two Million on or before 30th November, 2019.
(3) The Plaintiff and the Defendant have agreed the Court to accept this settlement as judgment of the Court.
(4) This settlement is made in the presence of their Counsel and witness.
Signed Signed
Aliyu Isah Salisu Audu Yusuf
(Plaintiff) (Defendant)
Signed Signed
M.A. Rutai Esq. K.I. Jibril Esq.
Signed Signed
Ahmed Umar Jama’are Haruna Sabo
(witness) (witness)”

Based on the foregoing agreement, the learned trial judge on the 7th day of November, 2019 entered judgment in the following terms after citing some provisions of the Quran.
“Relied with these, this Court have confirmed the settlement as it judgment and order to Salisu Abdu that he must sent (sic) this money on or before 10/11/2019, and also to appear in Court in the next sitting on 3/12/2019.
The Court adjourned the case to 3/12/2019.
Signed
7/10/2019”

On the return date 3/12/2019, the Appellant was absent and not represented. That led to the application of the learned Counsel Representing the 1st Respondent (Plaintiff) to the Court to order the arrest of the Appellant (Defendant) now judgment Debtor before the Court for failing to appear in Court on that date (3/12/2019).

The learned trial judge found favour in the request by the Plaintiff’s judgment creditor’s Counsel and ordered as follows relying on some Quranic injunctions: –
“Relied on that, this Court have order to force (sic) the Defendant to appear in Court by arresting him wherever he is, the case adjourned until the day he is arrested.
Signed
3/12/2019”

The foregoing led to the arrest of the Defendant’s judgment debtor in Kano. On 9th day of December, 2019, he was produced in Court by a prosecutor. The Court confronted him with the question, why he has failed to appear in Court on 3rd day of December, 2019. The Appellant pleaded with the Court that his Counsel did not tell him of the adjourned date. He added that he was making efforts to pay the judgment debt and that efforts are being made to sell a family property in Potiskum so as to offset the judgment sum.

In the end, the Court ordered as follows:
“The Court order for reminding you in prison and the Court give you bail with the following conditions
(i) To give One Million Naira (N1,000,000.00) out of the money that you owe.
(ii) You will produce a civil servant with (Gl.14) and he will give 2 passport photograph and his last promotion of (GL. 14)
(iii) And to call the hamlet or village head here in Jama’are town.
Fulfilling this things at any time are the conditions of your bail you Salisu the case is adjourn (sic) to next sitting on 3/12/2019
Signed Abdullahi Tijani Azare
Principal Judge
Jama’are Sharia Court
03/12/2019”

The foregoing led to the detention of the Appellant at the Correctional Centre and hence his application to High Court of Bauchi State for the prerogative order of certiorari pursuant to Order 43 Rule 3 of the High Court Rules of Bauchi State. In the said application, the Appellant sought for the following order:
“(1) An order quashing the proceedings, order of arrest and remand issued by the 2nd Respondent against the Applicant in Suit No. CVF/36/19 in the matter between the Appellant and the 1st Respondent.
(2) SUCH FURTHER order as the Hon. Court may deem fit to make in the circumstances.”

Upon hearing of the application the learned trial judge in his considered judgment as headed but which I believe should be a ruling delivered on 24th day of June, 2020 refused the application (see pages 79 to 84 of the Record of Appeal).

The Appellant/Applicant again was not happy with the outcome, hence this appeal dated and filed on 26/06/2020 containing two grounds.

Issues were joined by parties hence brief of argument were filed.

In the Appellant’s brief of argument dated 8th day of July, 2020, the following lone issue was distilled for the determination of the appeal:
“Whether the lower Court was right to have refused the Appellant’s application for judicial review against the proceedings and orders of the 2nd Respondent for the arrest and detention of the Appellant made in violation of the provision of Order 9 of the Bauchi State Sharia Court (Civil Procedure) Rules, 2001. (Distilled from ground one and two of the Appellant’s ground of appeal).”

The Respondent adopted the lone issue formulated by the Appellant. This appeal will therefore be determined based on the lone issue distilled by the Appellant herein before reproduced.

The Appellant answered the question posed by the issue in the negative on the following reasons.

That the provision of the Order 9 of the Bauchi State Sharia Court (Civil Procedure) Rules 2001 provides:
(i) Execution to be levied after 7 days of judgment.
(ii) Application for execution shall be in writing as in form Sharia 04.
(iii) Subject to the provision of these rules, the A1 – Qadi can order the detention of a judgment debtor for such period not exceeding six months if he has no property which execution can be levied.

In the light of the foregoing, he argued that the Respondents have flagrantly disregarded the two provision of Order 9 of the Sharia Court (Civil Procedure) Rules 2001 Bauchi State when he ordered the remand and detention of the Appellant. In the record of proceedings, there is nowhere the 1st Respondent applied in writing for execution. It is his contention in addition that after the Court has rendered its judgment, it becomes functus officio in the matter. The Court having entered judgment lacked the jurisdiction to adjourn the matter again to 3rd day of December, 2019, and directing that the Appellant should be present. The Court can only act in such circumstance to correct clerical errors or accidental slip. Or where the Court had been approached by way of past judgment applications such as execution of judgment, application for stay of execution of judgment, application for payment of judgment sum by installment, application for stay of execution or application to set aside the judgment or order as the case may be. He relied on the case of A.G. KWARA STATE V LAWAL (2018) 3 NWLR (Pt. 1606) 266 at 270, ITEOGU VS L.P.D.C. (2018) 11 NWLR (Pt. 1630) 378 R. 2. He submitted that adjourning the matter to another date after becoming functus officio and insisting on the appearance of the Appellant in Court, constitute acting in excess of his jurisdictional powers. In the foregoing circumstance, the lower Court has the power to quash such actions of the trial Court. Rather, and in the circumstance, the High affirmed the action of the Sharia Court. He added, that the matter being a civil action, the Appellant need not be asked to attend Court. He submitted that the proceedings conducted by the 2nd Respondent after he had become functus officio is without jurisdiction hence the order for the arrest and detention of the Appellant made thereafter is erroneous and the order granting bail on the condition that he deposit the sum of N1,000,000.00 before he could release is unfair. The lower Court erred in not making a pronouncement on the foregoing. He relied on STEEL BELL (NIG) LTD VS GOVERNMENT C.R.S. (1996) 3 NWLR (Pt. 438) 501 at 574 R. 1.

He urged the Court to allow the appeal and set aside the decision of the lower Court by quashing the proceeding and order of the trial Jama’are Sharia Court 1 Bauchi.

On behalf of the Respondent, the question emanating from the lone issue was answered in the affirmative. He submitted that the lower trial Court was right in refusing the application for review of the 2nd and 3rd Respondent’s decision. He added that the order made was legally issued and did not contravene or violate Order 9 of the Bauchi State Sharia Court (Civil Procedure) Rules, 2001.

He argued that upon a careful look at the judgment of the 2nd and 3rd Respondents, a clear and special circumstance have been created. He added that the judgment clearly outlined certain conditions that forms part of the consent judgment of the Court. The Appellant was to make payment of certain sum of money on certain dates. But the condition of payment was not adhered to and in addition the Appellant was absent from Court hence the order of the trial Court to compel his appearance consequent upon the application of the Plaintiff/Respondent. It is his case that the proceedings of the Court conducted by the 2nd & 3rd Respondents to compel the attendance of the Appellant was in order because the circumstance of the case made it expedient for the order of arrest of the Appellant and his detention by the trial Court. He relied on Order 3 Rule 7 of the Bauchi State Sharia (Civil Procedure) Rules of 2001. He reiterated that both the Appellant and the 1st Respondent met on 25th October, 2019 and settled their differences out of Court. They adopted their settlement agreement on 7/11/2019. This led to the consent judgment entered by the Court. The matter was adjourned to 3rd December, 2019. On that day the Appellant and his Counsel were absent. He argued that this constitutes a clear case of contempt of Court and hence his arrest. Failure to justify the cause for his absence warranted his remand in prison custody pursuant to Order 3 Rule 7 and 9(1) of the Bauchi State Sharia (Civil Procedure) Rules, 2011. He argued that the fact that the Appellant did not deny that there was a consent judgment and that the Appellant failed to appear justifies the action of the Court ordering his arrest and detention so as not to frustrate the judgment. He added that the 2nd Respondent has the legal blessing to exercise her discretionary power in such situation. He relied on the case of SULEMAN V C.O.P PLATEAU STATE (2008) (Pt. 425) page 1649 Paras. A. B., on the meaning of exercise of discretionary power. He contended that the Appellant having failed to show that the Court did not exercise its discretion properly, then the judgment cannot be set aside. It is only when an exercise of judicial discretion is not done judicially and judiciously that the Appellate Court can interfere. He relied on the cases of BELLO V YAKUBU (2008) (Pt. 425) pg. 487 paras. E-G, SOLANKE V AJIBOLA (1969) 1 NMLR 253, N.A.A. V. OKORO (1995) 6 NWLR (Pt. 403) 510 NWANKPU V EWULU (1995) 11 SC. 307. He submitted that if the 2nd Respondent had failed to exercise his discretion injustice would have occasioned and that it is the duty of the Court to do justice in every matter before it. He cited the case of EKWUEZE V EJIOFOR (2008) ALL FWLR (Pt. 48) pg. 1297 para. H. Further, he argued that the 2nd Respondent has the constitutional duty to protect and enforce the order, decision and judgment of every Court of law in Nigeria. He added that the order for the detention of the Appellant was done in order to ensure compliance with the order of the Court. He relied on the case of FIDELITY BANK V THE M.T. TABORA & ORS (2018) LPELR – 44504 pg. 35-37 paras. E-B.

He argued further that the 2nd and 3rd Respondents have the moral duty to protect the sanctity of the judicial system and where litigants before the Court would indulge in an unpatriotic act of gross disregard to judicial process, the Court must rise to the occasion and protect its sanctity and respect within the general public. He accused the Appellant of bringing the judicial process into disrepute. He did not honour the summons issued by the lower Court. That constitutes contempt of the Court. He referred to Order 3 Rule 7 of the Bauchi State Sharia (Civil Procedure) Law 2001. He relied on the case of BANWAT & ANOR V ASSOCIATION OF MEDICAL LABORATORY SCIENTIST OF NIGERIA & ORS (2018) LPELR – 45275 p.22 paras. B-C.

It is his contention that the argument by the Appellant that the trial Court was functus officio is misplaced. He argued that by the consent judgment entered for the parties by the 2nd & 3rd Respondents the judgment debtor has to make certain commitment and it would be completely out of place for the Court (2nd Respondent) to close its eyes in the midst of the obvious glaring lack of concern displayed by the Appellant when his appearance was ordered. He described the order as a post-judgment order and that the 2nd Respondent did not revisit what had been litigated upon. He argued that the decision in the case of KWARA STATE V LAWAL (supra) relied upon by the Appellant is not applicable. The order made was to ensure compliance with the judgment. The order by the trial Court asking for payment of part of the judgment sum cannot be equated to adjudication or revisiting a judgment. He relied on MBAKWE V R.M.S. AFRICA (2008) ALLFWLR (Pt. 59) pg. 1355 paras. C-D.

He added that the lower Court had carefully gone through the entire application made by the Appellant who was the Applicant before coming to the conclusion that 2nd Respondent did not act in excess of the exercise of his discretionary power as conferred upon it by the law. He argued that the Appellant’s application before the trial Court was rightly refused. He urged the Court to hold that the Appellant’s appeal lacks merit and should be dismissed with a cost of N300,000.00 naira against the Appellant and in favour of the 1st Respondent.

Based on the foregoing arguments for and against, and having regard to the very narrow issue formulated by the Appellant, the question that agitates the mind simply is whether the lower Court was right when it refused the application of the Appellant for an order of certiorari. If I may ask then, what does certiorari connote and its purpose and whether it is applicable in the circumstance of the fact before the lower Court.

Just to refresh the memory, the issue before the Sharia Court 1 Jama’are is that of recovery of a simple debt emanating from a simple gentleman unwritten contract agreement wherein the Respondents in this appeal and as Plaintiff before the Jama’are Sharia Court claimed against the Appellant the sum of N200,000.00. Parties agreed to settle amicably. That move led to the execution of a settlement agreement which was adopted by both parties before the Sharia Court 1. Upon that adoption, (see pages 52-53 of the Record of Appeal), the trial judge entered a consent judgment as enjoined by the principles of Islamic Law (see page 53 of the Record of Appeal). The learned trial judge said:
“Considering what has happen in this settlement, we convince to accept this settlement as a judgment of this Court with the following reasons:
(1) The holy Quran said:“…”
Meaning: – “Settlement is Better”
(2) What is involved in the letter of the settlement is correct with what the Sharia Law provided to make settlement in this way.
(3) Since there is no any misunderstanding between the parties, the Court suppose to consider and confirm the settlement.
(4) The tradition of the prophet confirm that “…”
Meaning: – “Muslims are on their conditions except if the condition changes a lawful to prohibited or change prohibited to lawful”.
Relied with these, this Court have confirmed this settlement as its judgment and order to Salisu Abdul that he must sent this money on or before 10/11/2019, and also to appear in Court in the next sitting on 3/12/2019.
The Court adjourn the case to 3/12/2019.”

Based on the foregoing, the Court again sat on the 3/12/2019 and both the Appellant (judgment debtor) and his Counsel were absent. The learned Counsel to the Plaintiff judgment creditor was present and urged the Court to compel the appearance of the judgment debtor (the Appellant). The Court acceded to the request and ordered the arrest of the judgment debtor (Appellant). He was arrested in Kano and brought before the Jama’are Sharia Court by a prosecutor. (See page 54 of the Record). On that same date, the Court asked why the Appellant defaulted in appearance. He explained. The Court was not satisfied hence ordered as follows:
“The Court order for remanding you in prison and the Court give your bail with the following conditions
(i) To give one million naira (N1,000,000.00) out of the money that you owe.
(ii) You will produce a civil servant with (GL. 14) and he will give 2 passport photographs and his last promotion of (GL. 14).
(iii) And to call the hamlet or village head here in Jama’are town.
Fulfilling this things at any time are the conditions of your bail you Salisu the case adjourned to next sitting on 03/12/2019
Signed
Hon. Abdullahi Tijani
Azare
Principal Judge
Jama’are Sharia Court
03/12/2019”

Pained by the foregoing order by the Sharia Court 1 Jama’are, the Appellant approached the High Court of Bauchi State by way of a Motion on Notice dated and filed on 10th day of February, 2020 and through which he sought for the following orders (see pages 18-63 of the Record of Appeal).
“(1) AN ORDER quashing the proceedings, order of arrest and remand issued by the 2nd Respondent against the Applicant in Suit No. CVF/36/19 in the matter between the Applicant and the 1st Respondent.
(2) SUCH FURTHER or other orders as the Hon. Court may deem fit to make in the circumstances of this case.”

In his considered judgment which in my view should be a ruling delivered on the 24th day of June, 2020, the learned trial judge in refusing the application concluded as follows (See pages 79-84 of the Record of Appeal):
“I have gone through the record of the 2nd and 3rd Respondents. From the Exhibit A1 i.e. the record of the 2nd Respondent, it would appear that the arrest and detention of the applicant was done in order to secure his attendance before the 2nd Respondent after he refused to attend Court. It is important to note here that the Sharia Court have their own rules and procedures. It is therefore wrong to assume that they must follow the rules or procedures of the High Court.
I am therefore of the view that there is no reason whatsoever given by the Applicant either in his affidavit or the record of this Court to quash the proceedings or order of the 2nd Respondent. It is in the light of this that I hereby hold that this application in its entirety failed and it is accordingly refused.”

In providing answer to the question raised hereinbefore, I consider it proper to bring to bear what it entails to request and for the grant of an order of certiorari. The prerogative writ of certiorari is a form of a judicial review wherein the High Court exercises its supervisory jurisdiction to review the proceedings, decisions of inferior Courts and acts of governmental bodies. The usual available remedies are orders of mandamus, certiorari and prohibition and in some instances also the writ of habeas corpus. Therefore, in judicial review, the Court is usually concerned with the legality and not with the merit of the proceeding, decision or acts of the affected inferior Court, Tribunal or governmental body. The exercise of this power by the superior Court of record is recognized as an aspect of the jurisdiction of the Courts. See A.G FEDERATION V AGWUNA (1995) 4 NWLR (Pt. 388) 234. Put in another way, an order of certiorari or prohibition will lie against anybody or person having a legal duty to determine question affecting the right of subjects wherever the duty implies, wherever the powers vested in the body or person are such that the exercise of that power may adversely affect the interest of citizens, there clearly exists a duty on the body or person to act fairly, otherwise an order of certiorari will lie to quash the decision. In addition to the foregoing, where also an administrative tribunal departs from mere administrative or executive function and acts judicially by deciding on the right and obligations of the person affected certiorari will also lie. See STEEL BELL (NIG) LTD V GOVT CROSS RIVER STATE (1996) 3 NWLR (Pt. 438) 571. Where also an inferior Court or Tribunal has the authority to determine questions affecting the right of subjects and having the duty to act judicially or fairly and it acted in excess of its legal authority, an order of certiorari will also lie. See EKPO V CALABAR LOCAL GOVERNMENT (1993) 3 NWLR (Pt. 281) 324, UNIVERSITY OF UYO & ORS V. ESSEL (2006) ALL FWLR (Pt. 315) 80 at 96. Therefore, an order of certiorari is to correct errors of an inferior tribunal and quash erroneous decisions. See CHIEF A. ABU AND ORS V CHIEF A.Z. ODUGBO AND ORS (2001) FWLR (Pt. 69) 1260 at 1283, AWE AND ANOR V G.M. OSUN STATE; NWAOBOSHI V STATE (1998) 10 NWLR (Pt. 568) 131, 152. Let me finally add that certiorari will not lie where a Court or Tribunal acts within its competent jurisdiction but merely committed an error of laws. See JOSEPH OJO AND ORS V VICTINO FIXED ODDS LTD (2001) FWLR (Pt. 42) 93 at 110.

Now considering the fact leading to this appeal and the proceedings before the Sharia Court 1 Jama’are, it is clear that parties before the Sharia Court agreed to settle their dispute amicably. They went into an agreement in writing and adopted the terms of their agreement before the Sharia Court and the said Court entered judgment based on the terms of the agreement. However, the learned trial judge did not stop there but adjourned the matter to another date (3/12/2019) on its own volition so as to ensure compliance with the judgment entered on the agreed terms i.e. 3/12/2019. Because the Appellant judgment debtor did not appear on that date, the learned trial judge ordered his arrest so as to compel the judgment debtor’s appearance before the Court. It is glaring from the record that there was no complaint of lack of compliance with the order of the Court from the judgment creditor. Also, the judgment creditor has no application before the Court for enforcement and execution of the judgment.

Not this alone, it became so apparent that the Sharia Court has not comply with Order 9 of the Bauchi State Sharia Court (Civil Procedure) Rules, 2001 which prescribes the procedure to follow for enforcement of a judgment debt. There is no written application before the Court seeking for the enforcement of the judgment. Other than the oral application by the counsel representing the judgment debtor for the arrest of the Appellant for failing to appear on 3/12/2019, no formal complaint as prescribed by the rules about the payment or otherwise of the judgment debt. It will be recalled that the trial Sharia Court judge on his own volition after entering the consent judgment fixed the case for another date i.e. 3/12/2019. The question is why the adjournment to another date. It is trite that once a Court of law has delivered its judgment or makes an order in respect of a matter before it, it becomes functus officio. See CITEC INT’L ESTATE LTD & ORS V FRANCIS & ORS (2014) LPELR (SC), EDO-OSAGIE & ORS V COMMISSIONER OF LANDS, MIDWESTERN STATE OF NIGERIA (1973) LPELR – 24932 (SC), ENTERPRISES BANK LTD V AROSO AND ORS (2015) LPELR 24720 (SC), MOHAMMED V HUSSEIN (1998) 11/12 SCNJ 136 at 163-164, OLOWU V ABOLORE (1993) 6 SCNJ (Pt. 1), INAKOJU V ADELEKE (2007) 4 NWLR (Pt. 1025) 423. It is the law and trite that the phrase “functus officio” being a Latin expression simply means “task performed”. In legal or judicial parlance, it means a judge cannot give a decision or make an order on a matter twice. In the case at hand, apart from the fact that the Court failed to comply with Order 9 of its rules, he also lumped together the procedure for failure to attend Court in compliance with the Court’s directive with that of enforcement of the judgment of the Court. This again can be seen in the order for the deposit of N1,000,000.00 as part payment of the judgment sum and part of condition to release the Appellant on bail. All these orders were not sought by the judgment creditor but made by the Court in exercise of his overzealous power other than a judicial power suo motu. Rather than allow the judgment creditor to intimate and move the Court of his desire, the Court took over the position of a judgment creditor and proceeded against the Appellant judgment debtor on his own volition. This act in my humble view is in violation of the rules of Natural Justice. The Court seems to be crying more than the bereaved. It is a display of overzealousness and abuse of judicial power.

For all the foregoing, it is my view though humble that the High Court erred in law in not faulting the proceeding of the Sharia Court 1 Jama’are by affirming the non-judicial and non-judicious pronouncements. Accordingly, I answer the lone issue in this appeal in the negative. I hold that this is a proper case for the High Court to intervene and issue an order of certiorari. I therefore find merit in the appeal and it is hereby allowed.

In consequence the finding and conclusion of the High Court of Justice Bauchi State in Suit No. BA/55M/2019 delivered on 24th day of June, 2020 Coram Hon. Justice ALIYU BABA USMAN and the order of arrest and detention of the Appellant SALISU ABDU JAMA’ARE in prison (Correctional Centre) rendered on 3rd day of December, 2019 by the Sharia Court 1. Jama’are Coram Hon. Abdullahi Tijani Azare (Principal Judge) are hereby set aside and quashed.

Order is hereby made that the Appellant should be released unconditionally forthwith.

However, the foregoing order does not prevent the judgment creditor from legitimately pursuing the enforcement of the consent judgment against the judgment debtor through a due process of the rules but before another judge other than Hon. Abdullahi Tijani Azare (Principal Judge).
Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A. and I am in agreement with his reasoning and conclusion that Appellant’s judicial review application before the High Court of Bauchi State for the quashing of the orders of the Sharia Court 1, Jama’are Bauchi State for his arrest and detention was well-founded and made out for reasons very ably put forth by my learned brother in the lead judgment. The High Court of Bauchi State, I therefore also agree, erred in refusing to grant the certiorari application. Accordingly, I hereby also allow this appeal, set aside judgment of the High Court of Bauchi State and quash the orders and arrest of Appellant made by the Sharia Court 1, Jama’are.

I abide all consequential orders contained in the lead judgment, including that as to costs.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have been availed of an advance copy of the lead judgment of his Lordship Mudashiru Nasiru Oniyangi, JCA I am totally in agreement with His Lordship’s seasoned decision.

I find the decision of the lower Court perverse, particularly as the orders were not sought by the Respondent. The trial Sharia Judge ought not to have adjourned the case to another date, that is, the 3rd December, 2019 having entered consent judgment consensually filed by both parties. Worst still, he ought not to have taken it upon himself to order the deposit of N1,000,000.00 (One Million Naira) part payment of the judgment sum as a condition for his release on bail. Besides, it was totally out of place to have ordered the arrest of the Appellant to compel his appearance to Court. His conduct leaves one in doubt with the sincerity of his objectives particularly as the orders made have no legal footing.

In the light of the foregoing and for the fuller reasons given by His Lordship in the lead judgment I hold that this appeal ought to succeed.

The judgment of Sharia Court 1, Jama’are is hereby set aside, without prejudice to the Respondent’s right to enforce the consent judgment in accordance with the law and due process.