LAWAL ABDULLAHI INDABAWA & ORS v. SAKINA GARBA INDABAWA (2019)

LAWAL ABDULLAHI INDABAWA & ORS v. SAKINA GARBA INDABAWA

(2019)LCN/13371(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2019

CA/K/120/2017

RATIO

APPEAL: WHETHER AN APPLICATION FOR CENTIORARI CAN BE HEARD AND DETERMINED WHEN THERE IS A PENDING APPEAL IN A HIGHER COURT ON THE SAME MATTER
I accordingly agree with the Appellants Counsel that there was an appeal pending against this judgment when the application for Certiorari was heard and determined by the lower Court.
On whether this amounts to an abuse of Court process was defined in the locus classicus, Saraki v Kotoye (1992) 9 NWLR Part 264 Page 156 at 188-189 Para E-B per Karibi-Whyte JSC, as lying in ?both a proper or improper use of the judicial process in litigation

The employment of judicial process is, however, only regarded generally as an abuse in the following circumstances, though not limited to:
1. Filing of multiplicity of actions on the same subject matter between the same parties even when there is in existence a right to commence the action.
2. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
3. Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a Respondent?s notice.
4. Where two actions are instituted in Court, the second one asking for a relief which may have been obtained in the first.
The second action is vexatious and an abuse of Court process.
See Saraki v Kotoye Supra; Bukoye v Adeyemo (2017) 1 NWLR Part 1546 Page 173 at 191-192 Para H-H per Sanusi JSC; Lokpobiri v. Ogola (2016) 3 NWLR Part 1499 Page 328 at 367-368 Para E-B per Onnoghen JSC (as he then was).PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUDGMENT: WHEN THERE ARE TWO PROCESSES AGAINST A PARTICULAR JUDGMENT

It is clear from the cases above cited that where two processes, as in the instant case, were filed in attack of the same judgment, the latter process will be considered an abuse of judicial process.
The case cited by the Respondents Counsel of African Continental Bank v Nwaigwe (2011) 7 NWLR Part 1246 Page 380 at 393 Para C-E is quite instructive, where the Supreme Court, per Onnoghen JSC (as he then was), reading the lead Judgment, had this to say:
In the case of Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of Court.”PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUDGMENT: WHAT HAPPENS WHEN THERE IS AN APPLICATION FOR CERTIORARI WHEN THERE IS A PENDING APPEAL

Specifically, with respect to an application for Certiorari when there is a pending appeal, the Court held, per the same learned jurist …an appeal is an alternative remedy for an order of certiorari you cannot have both at the same time or one after the other. You must choose between the two.
Where, however, one of the processes is no longer pending, the Order for Certiorari having been granted as in this case, the question is whether the complaint of the latter process being an abuse of process is still tenable
In the case above of ACB v Nwaigwe Supra, Onnoghen JSC (as he then was), at Page 395 Para A-C held:
. legally and strictly speaking, the process in abuse is the application for certiorari not the appeal but as the latter has been determined, to allow the appellant to have a second bite at the cherry or apple would be unfair as both of the processes cannot be allowed to exist side by side. Since the application for certiorari has been concluded, to continue with the appeal will surely be an abuse of process of the Court and ought not to be allowed or encouraged.”PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. LAWAL ABDULLAHI INDABAWA
2. BINTA ABDULLAHI INDABAWA
3. HON. JUDGE USC SHANCI MAL. GARBA A. IBRAHIM
4. UPPER SHARIA COURT SHAHUCI
KANO
5. THE REGISTRAR USC SHAHUCI KANO Appellant(s)

AND

SAKINA GARBA INDABAWA Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The Respondent, as Applicant before the High Court of Kano State, hereafter referred to as the Lower Court had filed an application for Certiorari before that Court, seeking the following reliefs:
1. An order of this Honourable Court quashing the part of proceedings of the 1st and 2nd Respondents in suit No. CV/438/2015 Between Lawan Abdullahi Indabawa vs. Sakina Garba Indabawa having conducted same without jurisdiction to wit. (the inclusion of the property no. G.P 954 Suleimanu Crescent Kano as part of the estate left behind by late Justice Garba Abdullahi to be inherited by his heirs)
2. A declaration of Honourable Court that the applicant is the rightful owner/purchaser of the property GP 954 Suleimanu Crescent same from Kano State Government through its agency Ministry of Works, Housing and Transport Kano State.
3. A declaration that the proceeding by the 1st and 2nd Respondent in respect of property GP 954 Sulaimanu Crescent Kano is null and void for lack of requisite jurisdiction.
4. And for such order(s) this

Honourable Court may deem fit to make in the circumstances.

The Court, coram N.S. Umar Hon. Chief Judge of Kano State in a Ruling delivered on 8/12/2016, granted the application. Aggrieved, the Respondents to that application, Appellants herein, have appealed against its grant, by Notice of Appeal dated and filed on 16/1/17. In furtherance of the appeal, the Appellant filed an Appellants Brief of Arguments on 31/3/17, prepared by Dalhatu Shehu Usman Esq of Shehu Usman Dalhatu & Co, while the Respondent?s Brief, filed on 31/10/18 but deemed properly filed on 11/4/19, was prepared by A.M. Sabo Esq of M.N. Duru & Co.

The issues for determination formulated on behalf of the Appellants in their Brief of Arguments, are the following:
1. Whether it amounts to abuse of Court process to hear an application for certiorari during pendency of a predating appeal against the same judgment
2. Whether a Court can quash a decision of inferior Court by way of certiorari, when the decision is not brought before it for exhibition
3. Whether the lower Court can grant a declaration of title to land just by way of motion and affidavit

evidence
4. Whether the lower Court observed the principles of fair hearing by neglecting to ensure proof of service on the respondents before hearing the case
5. Whether the decision of lower Court is based on the evidence before it
6. Whether the case No.CV/438/2015 tried by the 1st respondent now 3rd appellant as explained therefore is within jurisdiction of sharia Court?
Those formulated for the Respondent by her Counsel, are the following:
1. In line with Exhibits M.N.D1 and M.N.D2, whether the Upper Sharia Court Shahuchi has jurisdiction over the property known as NO: G.P 954 Lamido/Sulaimanu Crescent Kano State.
2. Whether the lower Court was right to use the available documents before it, in order to reached (sic) just decision in this matter.
3. Whether the certiorari proceedings before the lower Court was an abuse of Court process.

Before proceeding any further, I must comment on the number of issues formulated by the Appellants’ Counsel, vis a vis the number of grounds of appeal filed. The six issues for determination formulated correspond, I note, with the number of grounds of appeal filed. The practice

of equating the issues for determination with the grounds of appeal filed is deprecated. The principle that guides formulation of issues is that a number of grounds of appeal will, where appropriate, be formulated into a single issue. Issues for determination are not to coincide with the number of grounds filed. See Nigerian Agricultural and Cooperative Bank Ltd v Ozoemelam (2016) 9 NWLR Part 1517 Page 376 at 394 Para A-F per Ngwuta JSC; Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 461-462 Para G-B per M.D. Muhammad JSC.

I again note that both parties fell into the habit of arguing issues in their Briefs of Argument without setting out the particular issue under consideration, merely giving their numbers. Good Briefs, when arguments are being proffered, must set out the issue under consideration, before commencement of arguments, not just to give their numbers. This makes for easy situation of the issues being deliberated upon, thereby saving the Court from the tedium of having to constantly leaf backwards to the page on which the issues were listed, in order to determine which issue Counsel is arguing.
I must also comment on the considerable

grammatical errors made in the Respondent?s Brief. It is incumbent on Counsel to always take great care in the preparation of their Briefs of Argument in order to ensure that grammatical errors are avoided. In the event that Briefs of Argument are prepared by junior Counsel in Chambers, the same must be vetted by the Principal, as it is the Chambers and not individual Counsel who prepared same, that will be held responsible.

I now proceed to the Appeal. Learned Counsel has included in the Respondent?s Brief, a Notice of Preliminary Objection to the competence of the appeal, on the ground that the Appellant did not mention from which ground of appeal each issue for determination was distilled. This thus shows, he submitted, that the issues are not related to any of the grounds of appeal, thereby rendering the arguments in the Appellant?s Brief incompetent and liable to be struck out. He cited the cases of Oseni v Bajulu (2010) All FWLR Part 511 Page 813 and Society Bic S.A. V. C.I Ltd (2014) All FWLR Part 739 Page 1212.
The Appellant filed no response to the Preliminary Objection.

This, notwithstanding, the Preliminary Objection shall be

treated on its merits.

It is indeed a desirable practice for Counsel to the Appellant to state in his Brief of Arguments the grounds from which each issue is distilled. Failure to do so, will, however, not result in the issues being struck out for incompetence, where, in the opinion of the Court, the issues were tied to the grounds. The practice is one of mere desirability than essentiality. See Adejumo v. Olawaiye (2014) 12 NWLR Part 1421 Page 252 at 273 Para E-F per Rhodes-Vivour JSC; Dada v. Dosunmu (2006) 18 NWLR Part 1010 Page 134 at 157 Para B-D per Onnoghen JSC.
The cases of Oseni v Bajulu (2010) All FWLR Part 511 Page 813 and Society Bic S.A. V. C.I Ltd (2014) All FWLR Part 739 Page 1212 cited by the Respondent?s Counsel merely reiterated the settled position that an issue for determination not related to or based on any ground of appeal is incompetent. The cases did not decide that an issue which did not state the ground from which it emanated is incompetent.
In the instant case, the failure of the Appellant to indicate from which ground the issue emanated, is not fatal to the issues, I hold, as a consideration of the Appellants’

issues show clearly that they were distilled from and emanate from the grounds of appeal filed by them. The Preliminary Objection is accordingly without merit and is dismissed.

Having dispensed with the Preliminary Objection, I now proceed to the substantive appeal.

I shall adopt as the issues for determination the first two issues raised by the Appellant, in addition to a 3rd issue on whether the lower Court was right to have granted an Order of Certiorari.

The 1st issue is:
Whether or not it amounts to an abuse of Court process to hear an application for Certiorari during the pendency of a pending appeal against the same judgment.

The Appellants have contended, citing the case of ACB v Nwaigwe (2011) NWLR Part 1246 Page 380, that once a party has a pending appeal, it cannot apply for an order of Certiorari, as one cannot take out both processes at the same time. Counsel pointed out that this contention was made before the lower Court by way of Preliminary Objection but was overruled by the Court in its judgment. He disagreed with the response of the Respondents at the lower Court that the appeal was only against parts of the judgment

and that an application for certiorari was filed against some other parts of the judgment. This, Counsel submitted, is not true, as shown in the Respondent?s Notice of Appeal before the Sharia Court which was exhibited to a Further and Better Affidavit filed by them before the lower Court.

The Respondent?s Counsel, countering these submissions, referred to the proceedings before the lower Court, where reference was made to correspondence between the Respondent and the Commissioner, Ministry of Works, Housing and Transport, Kano State, showing that the property in question was purchased by the Respondent after the death of her husband and thus did not form part of his estate for distribution to his heirs. In consequence, the property could not be included in the estate of the deceased for distribution by the Upper Sharia Court. In addition, the Upper Sharia Court lacked the jurisdiction to entertain any issue regarding property in an urban area in Kano State, where the property lay. He cited Kowa v Musa (2005) All FWLR Part 290 Page 1413.

The lower Court, ruling on this contention, agreed that ?Certiorari will not be used where there

is an equally competent and effective remedy like the process of an appeal. Therefore in exercising his discretion, a judicial officer will be judicious and will not allow the prerogative order of certiorari to supplant the regular process of appeal to the High Court.”

It however turned around to hold that an application for Certiorari can be brought even though there is a right of appeal.
It also held:
More importantly even if the Respondent has filed a Notice of Appeal ?. the said appeal was before the Sharia Court of Appeal Kano State whereas this is the High Court. Needless to point out that the Sharia Court of Appeal has jurisdiction over Islamic personal law whereas this is a Court of unlimited jurisdiction. More importantly, the Sharia Court of Appeal has no jurisdiction over the subject matter in dispute only the High Court. Therefore I find and hold that the said Notice of Appeal Exhibit DSU2B cannot set (sic) as an estoppel to prevent the Respondent/Applicant from seeking an order of Certiorari at the High Court. To allow same would amount to guiding (sic) the Sharia Court of Appeal jurisdiction over issue

which it clearly lacks any jurisdiction to hear and determines (sic).?

In determining this 1st issue, recourse must be had to the Respondent?s Notice of Appeal against the judgment of the trial Upper Sharia Court, which Notice was exhibited to the Appellants? Further and Better Affidavit filed before the lower Court, contained at Pages 120-127 of the Record of Appeal. The importance of this is to ascertain whether, as submitted by the Appellant?s Counsel, the appeal was against the entire judgment or whether it was against part only, thus giving room for the application for Certiorari made to the lower Court.

The Notice and Grounds of Appeal of the Respondent to the Shari?a Court of Appeal, Kano State from the Judgment of the Upper Shari?a Court Shahuci, Kano filed on 21/9/16 states:
IN THE SHARIA COURT OF APPEAL, KANO STATE
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
SCA/KN
CV/146/16
BETWEEN
SAKINA GARBA INDABAWA?. APPELLANT
AND
LAWAN ABDULLAHI INDABAWA? RESPONDENT
THE CHIEF REGISTRAR
SAHRIA

COURT OF APPEAL
KANO.
NOTICE OF APPEAL
TAKE NOTICE, the appellant being dissatisfied with the lower Court decision, wants inform you that he made an appeal against the decision, of the lower Court i.e U.S.C Shahuci (sic):
1. The lower Court?s case number:CV/438/15
2. Lower court: USC Shahuci
3. Parties in the matter: Sakina Garba Indabawa V. Lawan Abdullahi Indabawa
4. Matter arisen: estate distribution
5. Decision of the trial Court: inclusion of the house number G.P 954 Suleman Crescent as part of deceased estate.
6. The date that the lower Court gave its verdict: 25/5/2016
Grounds
I have not satisfied (sic) with the lower Court decision i.e. U S C Shahuci
1. That the house is not part of the deceased estate, because the deceased was not owned the house as at the time he dead (sic); I bought the house from government as a family of the late Justice Garba Abdullahi via a letter for request that I wrote to the Kano State Government asking same to sale the house for me (sic), that was after the death of Justice Garba Abdullahi. My request was considered and the same house was sold to me.

2. I will amplify the other grounds only when we commence the appeal at the Shari?ah Court of Appeal, Kano.
Sgd
Appellant Signature.

It is clear from the foregoing that there was an appeal to the Shari?ah Court of Appeal, Kano State against the inclusion by the Upper Shari?ah Court Shahucci of the property in dispute, in the distribution of the estate of the deceased.
Admittedly, it was not a ground of appeal that the property lay in an urban area for which the trial Court had no jurisdiction to entertain, the Respondent however indicated in the Notice of Appeal that other grounds would be filed at the commencement of the appeal at the Shari?ah Court of Appeal.
I accordingly agree with the Appellants Counsel that there was an appeal pending against this judgment when the application for Certiorari was heard and determined by the lower Court.
On whether this amounts to an abuse of Court process was defined in the locus classicus, Saraki v Kotoye (1992) 9 NWLR Part 264 Page 156 at 188-189 Para E-B per Karibi-Whyte JSC, as lying in ?both a proper or improper use of the judicial process in litigation

considered an abuse of judicial process.
The case cited by the Respondents Counsel of African Continental Bank v Nwaigwe (2011) 7 NWLR Part 1246 Page 380 at 393 Para C-E is quite instructive, where the Supreme Court, per Onnoghen JSC (as he then was), reading the lead Judgment, had this to say:
In the case of Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of Court.”
Specifically, with respect to an application for Certiorari when there is a pending appeal, the Court held, per the same learned jurist

…an appeal is an alternative remedy for an order of certiorari? you cannot have both at the same time or one after the other. You must choose between the two.?
Where, however, one of the processes is no longer pending, the Order for Certiorari having been granted as in this case, the question is whether the complaint of the latter process being an abuse of process is still tenable?
In the case above of ACB v Nwaigwe Supra, Onnoghen JSC (as he then was), at Page 395 Para A-C held:
. legally and strictly speaking, the process in abuse is the application for certiorari not the appeal but as the latter has been determined, to allow the appellant to have a second bite at the cherry or apple would be unfair as both of the processes cannot be allowed to exist side by side. Since the application for certiorari has been concluded, to continue with the appeal will surely be an abuse of process of the Court and ought not to be allowed or encouraged.”
Thus, from this and earlier decisions, the position of the law is that where two processes are pending, in this instance an appeal against the judgment of the

Court and an application for Certiorari to quash that Judgment, the subsequent suit for Certiorari will be an abuse of Court process. However, in a case where the application for Certiorari is competent, its grant by the Court, in spite of the pendency of an appeal against the same judgment, ceases to be an abuse of Court process, as its grant will effectively debar the Appellant of the right to pursue the earlier appeal.
In consequence, by the disposal by the lower Court of the suit for Certiorari, rightly or wrongly, the offensive process is no longer pending, thus removing the abuse from the Court. It merely means, in the event that the lower Court is held to have been right to grant the order, that the Respondent can no longer proceed with the earlier filed appeal.
I accordingly resolve this issue against the Appellants.

The 2nd issue for determination is:
Whether the lower Court can quash a decision of an inferior Court by way of Certiorari when the decision of that Court was not before it.

The Appellants? Counsel has argued that before the Court can exercise power to remove any decision of the inferior Court for the purpose of

being quashed, the Applicant must place before it the record of the decision sought to be quashed, referring to Order 40 Rule 9(5) of the Kano State High Court Rules 2014. He cited in addition the case of Zamani Lekwot v Judicial Tribunal (1997) NWLR Part 515 Page 22. There was however no record of the decision of the lower Court which it purported to quash, he argued, thereby acting on mere speculation.

In his response, the learned Counsel to the Respondent submitted that the lower Court, on 26/7/16, made an order directing the 5th Appellant to produce before the lower Court the record of proceedings of the trial Upper Sharia Court but was not obeyed. The lower Court thus had no option than to use its inherent powers to use the available documents before it, by invoking the provisions of Section 89 and 91 of the Evidence Act, to continue with the proceedings. Also, having not complained earlier about the procedure adopted, the Appellant cannot be heard to complain now.

The application of the Respondent to the Lower Court for leave for the issue of a Writ of Certiorari is contained at Page 24 of the Record and has been set out above. Exhibited to the

application is a verifying affidavit and a Written Address.

The Grounds for seeking the reliefs, as therein stated, are that after the death of Justice Garba Abdullahi, the husband of the Respondent, the Respondent applied to the Kano State Government for the purchase of the residence they had lived in for over 20 years. Following the grant of her application, she commenced payment for the house, as directed by the Kano State Ministry of Works, Housing and Transport. The Respondent denied that the property ever belonged to the Deceased and also denied that the Deceased ever applied for the purchase of the house. The Upper Sharia Court thus has no jurisdiction to entertain the suit, as the property does not form part of the estate of the Deceased. It also has no jurisdiction to entertain any action with regard to the sale of landed property. It was argued that unless the application is granted, the 1st Appellant would proceed to dispose of the property. Exhibited to the application were correspondence between the Respondent and the Kano State Government.
?
In the Counter Affidavit filed by the 4th and 5th Appellants, it was contended before the lower

Court that the application for the purchase of the house was for and on behalf of the beneficiaries of the estate of the Deceased and that it was not the house in dispute that was listed among the assets to shared ?but the discount of 50% made in honour of the Deceased? (sic). It was also alleged that the Respondent had appealed against the judgment of the Sharia Court, which appeal is still pending.

The enabling Statute for an application for Judicial Review is Order 43 Rule 9 of the High Court of Kano State (Civil Procedure) Rules which provides as follows:
9 – HEARING OF APPLICATION FOR JUDICIAL REVIEW
(1) On the hearing of any motion or summons under Rule 5, any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.
(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record

unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so, to the satisfaction of the Court hearing the motion or summons.
(3) Where an order of certiorari is made in any such case as is referred to in paragraph (2), the order shall, subject to paragraph (4), below direct that the proceedings shall be quashed forthwith on their removal into the Court.
(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, Tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
(5) Where the relief sought is a declaration, an injunction or damages, and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the

proceedings to continue if as they had been begun by writ.
Underline Mine
In the instant case, no judgment or order of the lower Court was exhibited to the application. No reasons were given in the affidavit in support of the application for the failure of the Respondent to exhibit the proceedings or judgment of the lower Court sought to be quashed. The reasons for this absence, rather than be given in the application in support of the Motion before the lower Court, were given in the Respondent?s Brief of Argument before this Court.
In the case of Major-General Zamani Lekwot (Rtd) & Ors. V. Judicial Tribunal on Civil And Communal Disturbances In Kaduna State (1997) 8 NWLR Part 515 Page 22 at 35 Para E-G the Supreme Court held, per Belgore JSC (as he then was), interpreting a similar provision in the Civil Procedure Rules then applicable, held, quite forcefully:
No Court in this country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess-work and to ask any Court to make a decision on guess-work and matters not exhibited before it is unjust and

can, depending on the circumstance of the case, amount to abuse of Court process. It is therefore obvious that the prayers before this Court are not supported by facts the Senior Advocate argued in his brief and viva voce. It must be pointed out that the cases cited by learned counsel, are based on concrete facts put before the Court unlike this one where what we are asked to interfere with are not placed before us.?
In agreement with the apex Court, the failure of the Respondent to exhibit the judgment or proceedings of the trial Upper Sharia Court it wanted quashed to the application before the lower Court, left the lower Court to merely indulge in speculation on oral contentions of the Respondent as to what transpired before the trial Court.
The need to comply strictly with the conditions stipulated in filing of an application for Certiorari was emphasized by the same Court in the case of Onyemazu v Ojiako (2010) 4 NWLR Part 1185 Page 504 at 520 Para A-F, per Chukwuma-Eneh JSC, where it was held that failure to comply is not a mere irregularity but that it affects the competence of the application.
The lower Court, in

the instant case, failed to advert its mind to this requirement, merely stating:
In association with the above submissions of both counsel is the area of the relevant law. To wit: what is the scope and purpose of an order of certiorari. It has been held that where the trial Court of its jurisdiction an aggrieved party (sic) will successfully seek an order of certiorari even though he has a right of appeal. See the above quoted decision in Ogene Vs. Ogene Supra at page 49 paragraphs D ? G.
In the circumstances and from the facts of this case, particularly Exhibits MND1 and MND2 above quoted the 1st and 2nd respondents that is the Upper Sharia Court Shahuchi Kano and the Hon. Judge have no jurisdiction to entertain any issue in respect of GP Suleiman Crescent because it does not fall under the inheritable properties of the deceased Justice Garba Abdullahi. See exhibits MND1 to Exhibit MND5. Insert Page 155 of Record, 1st and 2nd paragraph.?
No mention was made by the lower Court of the Record of Appeal of the trial Court nor comment made on the non-production of the same. The application of the Respondent before the lower Court

was thus clearly incompetent.
The submission of the Respondent?s Counsel that the failure to exhibit the judgment was as a result of the failure of the 5th Respondent to produce the proceedings, as a result of which the lower Court relied on its inherent powers to use available documents, cannot avail the Respondent, as this explanation was not given in the application before the lower Court. It was only given by the Respondent?s Counsel in the Respondent?s Brief of Argument before this Court.
Indeed the lower Court in its Ruling made no mention of the judgment of the trial Court, neither did it attribute its decision to the lack of production of the record of the trial Court.
Recourse to correspondence between the parties, as the lower Court did and which the Respondent?s Counsel has urged us to approve pursuant to Sections 89 and 90 of the Evidence Act, cannot, I hold, be a substitute for the clear requirements of the statute above.
The explanation given by the lower Court that it could entertain the application, being of unlimited jurisdiction, while the Sharia Court is limited to matters it can adjudicate on, is

no justification, I hold, for it to go contrary to the manner prescribed in the rules for the grant of an order of Certiorari.
Rules of Court are to be obeyed and complied with. Where a Statute or Rule of Court prescribes a condition precedent to the assumption of jurisdiction, that condition precedent must be complied with. See Yardua v. Yandoma (2015) 4 NWLR Part 1448 Page 197 at 197 Para A-B per Mary Peter-Odili JSC; Ifeanyichukwu Trading Investment Ventures Ltd v. Onyesom Community Bank Ltd (2015) 17 NWLR Part 1487 Page 1 at 26 Para H per Ariwoola JSC.
The grant by the lower Court of this incompetent application was clearly a wrong exercise of its discretion, I hold. Also the production by the Respondent before this Court of a Supplementary Record of Appeal containing the proceedings of the trial Upper Sharia Court, in a belated attempt to correct the defect in the application and to validate the decision of the lower Court, unfortunately does not avail the Respondent, to put it colloquially, is to close the stable door after the horse has bolted.
In resolving the 2nd issue for determination in favour of the Appellants, I hold that

the lower Court was wrong to have quashed the decision of the trial Upper Sharia Court by way of Certiorari when the decision of that Court was not before it.

Having so held and notwithstanding the resolution of the 1st issue for determination against the Appellants, this appeal succeeds. The decision of the lower Court is accordingly set aside. There being a pending appeal against the decision of the trial Upper Sharia Court to the Sharia Court of Appeal, the Respondent should either prosecute the appeal or terminate same and proceed with an alternative remedy, otherwise she will lay herself open to an allegation of abusing the Court?s process. The Respondent shall pay costs of N50,000.00 to the Appellants.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my Lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA and I agree with my lord’s judgment. It is settled law that certiorari lies to the High Court to quash the orders or proceedings of an inferior Tribunal which has acted in excess of its jurisdiction. See Federal Military Government v. Governor Mid-Western State & Ors (1973) 13 SC 19. In order for the

High Court to be fully informed of the order or proceedings sought to be quashed, (by the way, the Latin word “certiorari? means “to be fully informed?), it is necessary to lay before that Court the order or proceedings of the inferior trial Upper Sharia Court sought to be quashed. This was not done. The lower Court was therefore in error when it quashed by way of certiorari the proceedings of the trial Sharia Court without the proceedings being before it. I abide by the order as to payment of costs made by my lord in the lead judgment.

SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead judgment delivered by my Lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.

My Lord in the lead judgment has exhaustively dealt with issues involved in this appeal. I agree with the reasoning and conclusion that this appeal has merit and that same be allowed. The appeal is allowed. Respondent is ordered to pay cost to the Appellant assessed in the sum of N50,000.00.

Appearances:

Dalhatu UsmanFor Appellant(s)

E.U Amakor holding the brief of Chief M.N DuruFor Respondent(s)

Appearances

Dalhatu UsmanFor Appellant

AND

E.U Amakor holding the brief of Chief M.N DuruFor Respondent