KURMAN KURMA v. MAGADAN SANI SAUWA(2018)

KURMAN KURMA v. MAGADAN SANI SAUWA

(2018) LCN/4604(SC)

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 2018

SC.746/2016

RATIO

DUTY OF THE COURT TO REFRAIN FROM CONSIDERING AN ACADEMIC EXERCISE

It has been said in a plethoria of cases that Courts are constituted to hear and determine live issues and not waste its time on issues which serve no purpose, and if decided never determine the rights or liabilities of the parties.See Oyeneye v Odugbesan (1972) 4 SC p .244, Nkwocha v Gov of Anambra State (1984) 1 SCNJS p.654, Bakare v ACB Ltd (1986) 3 NWLR (Pt.26) p. 47; Bhojwani v Bhojwani (1995) 6 NWLR (Pt. 457) p. 653 PER OLABODE RHODES-VIVOUR, J.S.C.

IMPORTANCE OF THE ISSUE OF JURISDICTION TO ADJUDICATION

Clearly what is called for the determination of this Court is a jurisdictional question as to whether the Court that adjudicated over this matter had the power to do so. It needs be brought to the fore that it is vital in the administration of justice, and fundamental for the competence of the Court to adjudicate over the matter and if the Court lacks the jurisdiction to hear the matter the proceedings are and will remain a nullity notwithstanding how well or brilliantly conducted. The reason is that jurisdiction is the life wire and of utmost importance in the adjudicatory process and because of this pivotal position the issue of jurisdiction can be raised at any stage of the proceedings even if for the first time on appeal at the Apex Court. See Daniel v Amosun (2012) 11 WRN 47 at 53; Shelim & Anor v Gobang (2009) 5-6 SC (Pt. 1) 174 at 176. PER MARY UKAEGO PETER-ODILI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

KURMAN KURMA Appellant(s)

AND

MAGADAN SANI SAUWA Respondent(s)

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): This is an appeal from the Court of Appeal (Sokoto Division) delivered on 16 March, 2016 wherein the Court ordered that the appeal be transferred to the appellate Division of the High Court Kebbi State for hearing. The course which the proceedings have taken, and the relevant facts shall now be set out.

The appellant as plaintiff sued the respondent (and his heirs) as defendant before a Sharia Court in Kebbi State for compensation for building a house for the defendant. On 16 July, 2013 the Sharia Court entered judgment as follows:
. Therefore, the Court has decided that they should pay him the sum of N30,000 for his structures if they fail to pay, then he should pay them N45,000 for the cost of their plot .

Aggrieved by this judgment, Mohammed Sani Sauwa, who was not a party in the trial Court filed an appeal. The appeal came before the Upper Sharia Court 1, Argungu. On 23 April, 2014 the Court entered judgment. It reads as follows:
“We the Judges of Upper Sharia Court I and Upper Sharia Court II what we have seen is there is

no trial between Kurma and Moh’d Sani Sauwa. The Sharia Court Gulma said it did not conduct such trial.
In this regard there is nothing we can conduct, apart from directing Moh’d Sani Sauwa to seek for his right from Kurma. Or whoever he thinks he has right over the issue for the house. He should institute another case before the Court at Gulma over whatever he is claiming. Since the copy presented before us does not pertain to his case. We did nothing because none of the parties in the case appeal.

The appeal was dismissed. Now, the plaintiff before the trial Court filed an appeal, it was heard by the Sharia Court of Appeal, Kebbi State.
The respondent was the defendant in the trial Court. This Court affirmed the decision of the Upper Sharia Court. This is what the Court had to say:
. Based on the foregoing, we at the Sharia Court of Appeal Kebbi State, Argungu Division here affirm the decision of Upper Sharia Court, Argungu. The Court has decided that since the Court of Gulma said it did not conduct the trial between Kurman Kurma and Moh’d Sani Sauwa in this regard there is nothing for is to conduct but for Upper Sharia

Court Argungu to direct Moh’d Sani Sauwa to seek for his right from Kurma or whoever he seems to have claim over.
Moh’d Sani Sauwa should institute another case before the present Judge of Sharia Court Gulma over whatever he is claiming. But since this copy of proceeding before us does not involve his case, Upper Sharia Court Argungu did not say anything over it because none of the parties to the trial filed an appeal. Once again the appeal was dismissed.”

The appellant lodged an appeal. It was heard by the Court of Appeal Sokoto Division. On 16 March, 2010, the Court of Appeal ordered that the appeal from Upper Sharia Court, Argungu be transferred to the appellate Division of the High Court Kebbi State for hearing.

Dissatisfied, the appellant filed a Notice of Appeal on 16 June, 2016, and on 27 September, 2016, learned Counsel for the appellant, Mr. H. Zakariyau filed the appellant’s brief.
Mrs. J.C. Anishere, learned counsel for the respondent’s filed the respondents brief on 9 November, 2016.

Learned counsel for the appellant formulated a sole issue for determination. It reads:

Whether the provision of Section 277 of the 1999 Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal, Birnin-Kebbi in its judgment in appeal No. SCA/KBS/ARG/03/2014.Learned counsel for the respondent also formulated a sole issue for determination. It reads:
1. Whether the provision of Section 277 of the 1999 Constitution vests the Court of Appeal with jurisdiction over the subject matter in issue in the present appeal.At the hearing of the appeal on 8 October, 2018, learned counsel for the appellant, H. Zakariyau esq adopted the appellant’s brief filed on 27 September, 2016 and urged the Court to allow the appeal.

Learned counsel for the respondent, Mrs J.C. Anishere adopted the respondent’s brief filed on 9 November, 2016. She observed that the case should be transferred to the High Court of Kebbi State for hearing contending that the appeal should be dismissed.

I have read the briefs in detail and found that there is a fundamental point which both counsel overlooked and it is whether there is an appeal from the trial Sharia Court to the Upper Sharia Court 1 Argungu.

In the trial Court the parties were Magadari Sanni Sauwa Plaintiff-and Kurman Kumla Defendant. The heirs of the plaintiff are 1. Hauwa. 2. Hadiza. 3. Fati. 4. Saratu. 5. Sa’idu.
The appeal from the trial Sharia Court to the Upper Sharia Court 1 was filed by Muhammed Sanni Sauwa. The Upper Sharia Court 1 quite correctly observed that the trial sharia Court did not conduct a trial between the appellant and Kumla Kumla and concluded that since none of the parties in the trial Sharia Court appealed, nothing could be done.
The position of the law is that when judgment is delivered by the trial Sharia Court on 16 July, 2013 and none of the parties appealed within the time prescribed for filling appeal, and none of the parties filed a motion for extension of time to appeal, it becomes clear that the parties/are satisfied with the judgment. The judgment of the trial Sharia Court is inviolate. The judgment is still alive and Linching on the parties.
None of the parties in the trial sharia Court appealed, rather, Mohammed Sani Sauwa, a complete stranger to the proceedings, who was not a party in the trial Court filed an appeal before the Upper Sharia Court 1, Argungu. This in effect means that

there was no appeal from the judgment of the trial sharia Court. All subsequent appeals thereafter to the Sharia Court of Appeal and the Court of Appeal (Sokoto Division) are null and void since they are from a non-existent appeal. Counsel raised in their issues for determination how the provision of Section 277 of the Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal. In view of all that I have been saying especially the fundamental point that there is no appeal from the trial Court, considering whether the provision of Section 277 of the Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal, if considered would be an academic exercise. It has been said in a plethoria of cases that Courts are constituted to hear and determine live issues and not waste its time on issues which serve no purpose, and if decided never determine the rights or liabilities of the parties.See Oyeneye v Odugbesan (1972) 4 SC p .244, Nkwocha v Gov of Anambra State (1984) 1 SCNJS p.654, Bakare v ACB Ltd (1986) 3 NWLR (Pt.26) p. 47; Bhojwani v Bhojwani (1995) 6 NWLR (Pt. 457) p. 653

Considering provisions of the Constitution on the procedural jurisdiction of an appeal when there is no appeal before the Appeal Court is a waste of precious judicial time. An academic exercise best reserved for some Lecture Hall and not a Court of Law.

It is for this reasoning that the appeal is allowed. The judgment of the Court of Appeal Sokoto Division is set aside. The judgment of the trial Court is restored since there is no appeal from that judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and to underscore the support, I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Sokoto Division or Lower Court or Court below, Coram: Paul A. Galinje, (as he then was) T. O. Awotoye, M. L. Shu’aibu JJCA, delivered on the 16th day of March, 2016 setting aside the judgment of the Kebbi State Shariah Court of Appeal, Binnin Kebbi delivered on the 13th September, 2014.

The facts have been well set out in the leading judgment and there is no need to repeat them except for when the occasion warrants a reference to any of thereof.

The hearing of this appeal was on 8/10/18 at which learned counsel for the appellant, Hussaini Zakariyau Esq., adopted the brief of argument of the appellant filed on 27/9/16 in which he formulated a single issue as follows: –
Whether the provision of Section 277 of the 1999 Constitution of the Federal Republic of Nigeria affects the procedural jurisdiction of the Kebbi State Shariah Court of Appeal, Binnin Kebbi in its judgment in appeal NO. SCA/KBS/ARG/03/2010. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal.

Learned counsel for the respondent, Jean Chiazor Anishere (Mrs.) adopted her brief of argument filed on 9/11/16 and in it crafted a sole issue, viz: –
Whether the provision of Section 277 of the 1999 Constitution of the Federal Republic of Nigeria vests the Court of Appeal with jurisdiction over the subject matter in issue in this present appeal.

Either of the sole issue crafted on each side would be adequate as each is substantially the same as the other.

SINGLE ISSUE:
Whether the provision of Section 277 of the 1999 Constitution of the Federal Republic of Nigeria vests the Court of Appeal with jurisdiction over the subject matter in issue in this present appeal.

Learned counsel for the appellant submitted that the law relating to the question on ground is as provided by this Court in the case of Obiuweubi v CBN (2011) 45 NSCQR 51 at 64, 108-109.

That the respondent cannot lawfully jump procedural law of appealing from Shariah Court Fulma to Upper Shariah Court Argungu, to Shariah Court of Appeal and to the Court of Appeal.

That the respondent did not appeal against the judgment of the Shariah Court Gulma which remains binding and subsisting. That the respondent refused to appeal the judgment to the Upper Shariah Court but jumped the procedure and filed an appeal at the Shariah Court of Appeal and it is this procedural error and not issue of land that is the matter under reference.

He concluded by saying that the respondent is within the procedural jurisdiction of the Shariah Court of Appeal as provided by this Court in Obiuweubi v CBN (supra) and so the appeal should be allowed.

For the respondent, Mrs. Anishere of counsel contended that a careful study of the entire claim shows that the Shariah Court of Appeal, Kebbi State lacks power and/or jurisdiction to entertain this appeal being a land matter. She referred to Oduko v Government of Ebonyi State of Nigeria & 3 Ors (2009) 304 SC 154 at 158; Ladoja v INEC (2007) 119 at 131; Council of Legal Education v Balogun (2012) 2 WRN 101 at 108; Buhari v Haddy Smart (Nig.) Ltd (2010) 11 WRN 101 at 108 etc; Section 277 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended

The stance of the appellant in brief is that respondent as plaintiff before the Shariah Court Gulma where the judgment was entered against the plaintiff/respondent but he did not appeal rather it was a non party who appealed to the Upper Shariah Court and which appeal was dismissed. The respondent rather appealed to the Shariah Court of Appeal which dismissed the appeal on the ground that the procedure adopted by the respondent was improper.

The position of the respondent is that where what is in issue being a land dispute can only be determined by the Shariah Court of Appeal where it involves any

question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.

I shall quote for clarity the said Section, the provision of the said Section 277 of the 1999 Constitution (as amended) states:
1) The Shariah 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 appellant 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 Sub section 2 of the Section.
2) For the process of Subsection (1) of this section, the Shariah Court of Appeal shall be competent to decide:-
a) any question of Islamic personal law regarding a marriage concluded in accordance with that law including a question relating to the validity or dissolution of such a marriage, or a question that depends on such a marriage and relating to family relationship or the guardianship f an infant.
b) where all the parties to the proceedings are Muslims any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage or regarding family relationship, a founding or the guardianship of an infant.

c) any question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslin.
d) any question of Islamic personal law retarding an infant, prodigal, or person of unsound mind who is a Muslin or te maintenance or the guardianship of a muslin who is physically or mentally infirmed; or
e) where all the parties to the proceedings being Muslin have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.
I shall make reference to an earlier decision of this Court which is relevant for our purpose in this present discourse.
See OBIUWEUBI v CBN (2011) 45 NSCQR 51 at 64 ratio 20 at 108-109, where the Court held:
“There are broadly two types of jurisdiction and a distinction must be drawn between them namely:
(a) Jurisdiction as a matter of procedural law.
(b) Jurisdiction as matter of substantive law.
While a litigant may submit to a procedural law jurisdiction, he or she cannot confer jurisdiction on a Court where the

Constitution or a statute or any provision of the common law says that the Court does not have jurisdiction. A defect in competence is extrinsic to adjudication; hence a challenge to jurisdiction can be entertained at any stage of the proceeding.
The Judgment of the Shariah Court of Appeal for which an appeal was filed to the Court of Appeal Sokoto reads: –
“Based on the foregoing, we at the Shariah Court of Appeal Kebbi State, Arugungu Division here affirm the decision of U.S.C Arugungu. The Court has decided that since the Court of Gulma said it did not conduct the trial between Jurman and Moh’d Sani Sauwa; in this regard, there is nothing for us to conduct but for U.S.C
Arugngu to direct Muh’d Sani Sauwa to seek for his right from Kurma or whoever he seems to have claim over.
Muh’d Sani Sauwa should institute another case before the present Judge of Shariah Court Gulma over whatever he is claiming. But since this copy of proceedings before us does not involve his case, U.S.C Argungu did not say anything over it because none of the parties to the trial filed an appeal.”

It is difficult to resist the submission of learned counsel for the appellant that the respondent took a wrong course when he failed to appeal from Shariah Court Gulma to Upper Shariah Argungu but rather headed to the Shariah Court of Appeal and from there to the Court of Appeal. The situation created a process not provided for either constitutionally or by any statute and so when the Shariah Court of Appeal made a pronouncement it did so without jurisdiction as the matter was not properly before it and that Court had no vires to so entertain the appeal. Therefore, the issue is not whether there is a dispute to land or not or whether the Islamic personal law is to be examined. It follows that the submission by respondent’s counsel to Court to examine the plaintiff’s claims to confirm the Court’s jurisdiction does not come into play. The cases of Oduko v Government of Ebonyi State of Nigeria & 3 Ors (2009) 304 SC 154 at 158 and Ladoja v INEC (2007) 12 NWLR (Pt.104) 119 at 131 are not applicable as those cases are for scenarios different from the case in hand.
In conclusion, this appeal has merit and is hereby allowed on the reasons above and the well articulated lead judgment. I abide by the consequential orders as made.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in its draft form the lead judgment just delivered by my learned brother, Olabode Rhodes Vivour, JSC and I entirely agree with him that this appeal is meritorious and ought to be allowed. The Law Lord has quite efficiently dealt with the issue in this appeal. I may not improve upon what has been done but I shall make a few comments in support of the judgment. The facts have clearly been stated in the lead judgment and I shall not repeat the exercise.

The question in this appeal as already settled by my learned brother is “whether there is an appeal from the trial sharia Court to the upper sharia Court 1, Argungu.” In other words, the question is whether Mohammed Sani Sauwa (the Appellant at the Upper Sharia Court) was a party at the trial Sharia Court.

Evidence on record indicates that Mohammed Sani Sauwa who filed the appeal at the Upper Sharia Court 1, Argungu was not a party in the case at the trial Sharia Court. He never applied to be joined as a party while the case was pending at the trial

Sharia Court but only appeared on the scene after judgment had been delivered. He filed an appeal in a matter which he was a total stranger to wherein the Upper Sharia Court correctly held as follows: –
“We the Judges of Upper Sharia Court 1 and Upper Sharia Court 11. What we have seen is there is no trial between Kurma and Muh’d Sani Sauwa. The Sharia Court Gulma said it did not conduct such trial.
In this regard, there is nothing we can conduct apart from directing Moh’d Sani Sauwa to seek for his right from Kurma or whoever he thinks he has right over the issue for the house. He should institute another case before the Court at Gulma over whatever he is claiming since the copy presented before us does not pertain to his case. We did nothing because none of the parties in the case appeal.”

The appeal was consequently dismissed. Dissatisfied, he filed an appeal at the Sharia Court of Appeal, Kebbi State and the Court also correctly dismissed same on the ground that he was not a party in the case at the trial Sharia Court.

I don’t know how the Court below over looked the point when it ordered that the appeal from the Upper Sharia Court,

Argungu be transferred to the appellate division of the High Court, Kebbi State for hearing when parties at the trial Court had not appealed the judgment.

It is trite that under our law, a person whose interest is involved, or is in issue in an action and who knowingly chose to stand by and let others fight his battle for him cannot evade being bound by the outcome of such action. He is deemed to have waived his right to complain and he is certainly bound by the outcome of such action. SeeGreen v Green (1987) NWLR (pt. 61) 481. In this case, Mohammed Sani Sauwa cannot assert his right by appealing an action which he is a total stranger no matter how aggrieved he may be. He needs to commence a fresh action to claim his right if he has any.

Again, it is trite law, that for a matter to be heard in Court and completely determined the Court must be clothed with jurisdiction to hear such matter and there must be no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu & Ors v Nkemdilim (1962) SC.
In the case of Tiza v Begha (2005) 15 NWLR (pt. 949) 616, this Court per Musdapher, JSC (as he then was) held

thus “appeals generally are creation of statute, failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to adjudicate on the appeal. The jurisdiction of the Court of Appeal to entertain or adjudicate on any matter brought before it, is statutory.”
It follows therefore that the Court of Appeal may be deprived of its statutory jurisdiction where, as in this appeal, the parties at the appellate Court are different from the parties who commenced the action at the trial Court and who did not apply to be joined as parties or who have not sought and obtained leave to appeal as interested parties.
I dare to add that where the Court below adjudicates on an appeal wrongly brought before it, the Court below would be wanting in jurisdiction to entertain that appeal, the decision reached therein is void however well conducted and decided. In this case there was no appeal from the judgment of the trial Sharia Court to the Upper Sharia Court 1, Argungu. The Court below was wrong to have entertained the appeal

filed by Mohammed Sani Sauwa in an action which he was not a party at the trial Court and he did not seek leave to appeal as an interested party.
For the reasons I have stated above, I agree with my learned brother that this appeal has merit and is hereby allowed by me. The judgment of the Court of Appeal Sokoto Division is hereby set aside. I also agree that the judgment of the trial Sharia Court be restored since there is no appeal from that judgment.
Appeal Allowed.

EJEMBI EKO, J.S.C.: At the Sharia Court, Gulma in Kebbi State, the Appellant herein was the Plaintiff. He had sued Magadan Sani Sauwa, as a representative of the heirs of one Sani. In the suit, he demanded to be compensated for the house he had built on Sani’s land as the care-taker. The Sharia Court, Gulma granted his prayers. The Defendant, Magadan Sani Sauwa, was ordered to pay him the sum of N30,000.00 as compensation/value of the house; failing which he the Plaintiff would pay N45,000.00 the value of the land to the Defendant.

One Muh’d Sani Sauwa, a total stranger to the suit at the Sharia Court, Gulma, took it upon himself

to appeal the decision to the Upper Sharia Court (USC), Argungu. The USC, finding the appellant before them a busy body, held that “there is no trial between” the stranger appellant and the respondent. It accordingly declined jurisdiction to entertain the appeal.

Thereafter the original Plaintiff, the present Appellant, purportedly appealed the decision of the USC to the Sharia Court of Appeal, Kebbi. The respondent in that appeal, Magadan Sani Sauwa was neither a party to the suit at the Sharia Court, Gulma nor the appeal at the USC. The Sharia Court of Appeal nonetheless affirmed the decision of USC, Argungu held that the Sharia Court, Gulma “did not conduct (any) trial (sic proceeding) between” Muh’d Sani Sauwa and the Appellant. It accordingly declined jurisdiction over the frivolous appeal of the busy body.

It was against the decision of the Sharia Court of Appeal that Magadan Sani Sauwa (seemingly either a relation of Muh’d Sani Sauwa or another busy body) had appealed to the Court of Appeal. At the Court of Appeal an issue of substantive jurisdiction – “that the Sharia Court of Appeal had no jurisdiction to hear and determine this case”, was raised.

The Court of Appeal, Sokoto, upon considering Sections 277 (1) & 277(2) of the 1999 Constitution, held at page 54 of the Record, that the Sharia Court of Appeal “has no jurisdiction to hear and determine appeals arising from a claim of declaration of title to land”. That, ex hypothesis, may be the correct position of the law. The Court of Appeal consequentially transferred the matter to the High Court of Kebbi State for hearing.

However, the question upon which the Sharia Court of Appeal declared the proceedings at the USC, Argungu null and void is simply whether a person not a party in the proceedings before a Court of law can, in law, appeal it The Sharia Court of Appeal correctly answered the question, in affirming the decision of the Upper Sharia Court (USC), in the negative. That question does not come within the scope of the substantive jurisdiction of the Sharia Court of Appeal under Section 277 of the Constitution. Rather, the question raises an issue of procedural jurisdiction of the Sharia Court of Appeal as to whether the Court would allow a quixotic busy body or a stranger to the proceedings

to come before it and ask it to set aside a subsisting decision of another Court of law It is not a question as to whether the subject matter is within the jurisdiction the Court. It is instead, whether the case had come before it duly initiated by the proper parties by due process of the law. This also is an issue touching on the competency of the Court to entertain the suit or appeal initiated by a party who has no locus standi. Unarguably, locus standi is an essential factor in the competence of the Courts to entertain the action: AJAO v. SONOLA (1973) 1 ALL N.L.R (Pt. 1) 533 at 537; THOMAS v. OLUFOSOYE (1986) 1 N.W.L.R. (Pt. 18) 669 at 684.

I agree with the Appellant, as I also concur in the lead judgment just delivered in this appeal by my learned brother, OLABODE RHODES-VIVOUR, JSC, that the Court of Appeal should have resolved the appeal before them on the incompetency of the appeal initiated by a total stranger and quixotic busybody. I allow the appeal. The appropriate order should have been one striking out the appeal at the Sharia Court of Appeal, which I hereby make. Appeal allowed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Viviour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is meritorious and it is accordingly allowed, judgment of the lower Court is hereby set aside.

Appearances: