MUHAMMAD GIWA v. ABDU IRI & MUSA CIDA (2014)

MUHAMMAD GIWA v. ABDU IRI & MUSA CIDA

(2014)LCN/7340(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/S/60S/2011

RATIO

COURT: JURISDICTION; WHETHER A COURT OF LAW NEED NOT GO OUTSIDE THE ENABLING LAWS IN SEARCH FOR JURISDICTION

I am totally amused by the argument of the Learned Counsel for the Appellant, who has clearly displayed his ignorance in the area of how court’s jurisdiction is acquired. I entirely agree with the submission of Mr. E. C. Oguelina, Learned Counsel for the Respondent who submitted that courts are creatures of statutes, and that those enabling statutes that create them spell out their jurisdiction. I have never known that courts’ jurisdictions are determined by the names of the various courts in the country. Even this court that is called ‘Court of Appeal’ has original jurisdiction in Presidential Election Petition donated to it by the Constitution of the Federal Republic of Nigeria 1999. The Kebbi State Upper Shariah Court is a creature of Kebbi State Shariah (Administration of Justice) Law, 2000. Section 4(1) of the said law provides as follows:-
“For the purpose of administration of Shariah law in the State, there are hereby established in the state the following courts:-
a. The Shariah Court; and
b. The Upper Sharia Court
1. A Shariah Court shall be established in every District in the State and shall be a court of first instance.
2. An Upper Shariah Court shall be established in every Local Government Council in the State and shall be both a first instance and an appellate court.”
In Arjay Ltd Vs A. M. S. Ltd (2003) 7 NWLR (Pt.820) 577 at 635 paragraph A – B, the Supreme Court, per Tobi JSC had this to say:-
“Courts of law should not be hungry or thirsty for jurisdiction. The Constitution and the statute setting up the courts have vested enough jurisdictions on them and they need not go outside the enabling laws in search for jurisdiction. Jurisdiction is a hard matter of law which is donated by the Constitution and the statutes establishing the court. Where a trial judge goes on an unguarded journey in search of jurisdiction, appellate courts will call him to order.” per. PAUL A. GALINJE, J.C.A.

CONSTITUTIONAL LAW: THE FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER A PARTY THAT HAS BEEN GIVEN THE OPPORTUNITY TO PRESENT HIS CASE BUT FAILED TO DO SO CANNOT COMPLAIN OF DENIAL OF FAIR HEARING

From the proceedings I have highlighted above, the Appellant were given an opportunity to present their case by the trial upper shariah court. The Appellant did not present evidence before the trial court that the witnesses they intended to call were too old to come to the court. The names of the witnesses were not even given to the court. Presentation of proof in a case is the duty of the complainant, who must take necessary step to produce his witnesses. Mere ipse dixit that the witnesses are too old to come before the court is not enough. Just as the Learned Counsel is inviting the court to take the evidence of his witnesses even by gestures and subject same to specialist interpretation, he also owes the court a duty to produce medical report to show that his witnesses were to old to appear. Having been given an opportunity to produce his witnesses, the court was fair to the appellant. In Obasanjo Vs Buhari (2003)17 NWLR (Pt.850) 510 at 586 paragraphs A – C, the Supreme Court, per Edozie JSC said:-
“The audi alteram partem principle of natural justice merely enjoins that a party to a dispute be given the opportunity of presenting its case. A party who failed or neglected to present his case by withdrawing or abandoning it cannot complain of denial of fair hearing.”
See Oyeyipo Vs Oyinloye (1987)1 NWLR (Pt. 50)356, S & D. Const. Co. Ltd Vs Ayoku (2003)5 NWLR (Pt. 813) 278 at 300 – 301 paragraphs H -A. per. PAUL A. GALINJE, J.C.A.

JUSTICES

PAUL A. GALINJE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

M. L. SHUAIBU Justice of The Court of Appeal of Nigeria

Between

MUHAMMAD GIWA Appellant(s)

AND

ABDU IRI & MUSA CIDA Respondent(s)

PAUL A. GALINJE, J.C.A. (Delivering The Leading Judgment): This appeal is against the decision of Kebbi State Shariah Court of Appeal sitting at Birnin Kebbi, which was delivered on the 29th March, 2011. The Appellant herein claimed against the 1st and 2nd Respondents a farm land in the possession of the Respondents herein at the Upper Sharia Court Koko. At the end of the trial and in a reserved and considered judgment which was delivered on the 13/7/2010, the Appellant’s case was dismissed. His appeal to the Shariah Court of Appeal, Kebbi was also dismissed as the Shariah Court of Appeal found no merit in the appeal. Being aggrieved with the decision of the Shariah Court of Appeal, the Appellant has again appealed to this court. His notice of appeal at pages 13 – 16 of the record of appeal, dated 3rd May, 2011 and filed on the 5th May 2011, contains three grounds of appeal. These grounds without their particulars read as follows:-
1. The learned Khadis of the court below erred in law when they confirmed the decision of the trial court when the trial court had no jurisdiction to entertain the claims of the appellant as a court of first instance and this has occasioned a miscarriage of justice.
2. The learned Khadis of the court below erred in law when they confirmed the decision of the trial court on the basis that the appellant failed to produce his witnesses and that the oath of rebuttal thereafter given to the Respondents justified the decision of the trial court and this has occasioned a miscarriage of justice.
3. The learned Khadis of the Shariah Court of Appeal Kebbi State erred in law and prejudiced the constitutional right of fair hearing of the appellant as enshrined in S. 36(1) of the constitution of the Federal Republic of Nigeria 1999 when it failed to consider all the grounds of appeal of the appellant and this has occasioned a miscarriage of justice.
Parties filed and exchanged briefs of argument. Appellant’s brief is dated and filed on the 4th of October 2012, but deemed filed on the 12th February 2013. At page 2 of the Appellant’s brief of argument, Mr. Ibrahim Abdullahi, Learned Counsel for the Appellant who also settled the Appellants’ brief of argument formulated two issues for determination of this appeal. These issues read as follows:-
“(a) Whether the Shariah Court of Appeal Kebbi State did not err in law and come to a wrong decision when it confirmed the decision of the trial court (Upper Shariah Court, Koko) when the said trial court did not have the requisite jurisdiction to entertain the claim before it.

(b) Whether the Shariah Court of Appeal did not err in law, came to a wrong decision and breached the Constitutional right of fair hearing of the Appellant when it dismissed the appeal of the Appellant.”

Issue one is said to be distilled from ground 1, while issue two is distilled from grounds 2 and 3. Mr. E. C. Oguelina, Learned Counsel for the Respondent adopted the issues formulated by the Appellant.

In arguing the 1st issue, Learned Counsel for the Appellant submitted that, by the name of the trial court which the appellant instituted his action, the Upper Shariah Court Koko is an appellate court as such it has no jurisdiction to hear the original claim of the Appellant. In a further argument Learned Counsel submitted that the trial court being an appellate court, can only exercise jurisdiction in respect of matters relating to appeals and such civil matters in the first instance as the Grand Khadi may confer on the trial court. In aid Learned Counsel cited the authorities in Mai Shanu Vs Manu (2007) NWLR (Pt.1032) 42 at 44, Madukolu Vs Nkendilim (1962)2 SCNZR 34, Odofin Vs Agu (1992) 3 NWLR (Pt. 229) 350, Olowa Vs Nig. Army (2007) All FWLR (Pt 350)1298.

Finally Learned Counsel submitted that the Shariah Court of Appeal was in error when it confirmed the judgment of the trial court which did not have requisite jurisdiction to entertain the claim of the Appellant.

I do sympathise with the Learned Counsel for the appellant who is strenuously making effort to have the bread which he has wholly consumed. It is his client that took the case to the Upper Shariah Court, and if that court had no jurisdiction, it was his client’s case that stands the chance of failing. Even if his argument sails through here, his client would have nothing to gain.

For all I have said, Learned Counsel for the Appellant has not convinced me that the Upper Shariah Court Koko has no jurisdiction to entertain this case. The Upper Shariah Court was therefore right when it assumed jurisdiction over this matter. For the reasons I have set out herein above, the first issue formulated by the Learned Counsel for the Appellant is resolved against the Appellant and the first ground of appeal upon which the issue is formulated is hereby dismissed.

On issue 2, Learned Counsel submitted that the observations of the lower court at page 5 of the record of this appeal never transpired between the Appellant and the trial court as can be gleaned from the record of proceedings before the lower court. According to the Learned Counsel, that observation weighed heavily in the minds of the court below which led it to hold at page 12 of the record as follows:-
“We notice that lower court enjoins to (sic) applicants to confirm his claims by presenting witnesses but he fail to….”

Learned Counsel contends that the findings of the lower court regarding refusal to produce witnesses are perverse and out to be interfered with by this court, since that lower court cannot speculate on what is not contained in the records of appeal to justify the position taken by it. Learned Counsel insisted that the trial court did not make effort to ensure that the Appellant’s witnesses were heard by sending an officer to take the statement of the Appellants’ witnesses and where such witnesses could not speak, that statement could be obtained by gestures to be interpreted by a specialist.

In a further argument, Learned Counsel submitted that the failure of the lower court to make inquiries before arriving at the decision that the Appellant had no witnesses to call is a denial of fair hearing guaranteed to the Appellant, as no oath would have been administered on the Respondent if the Appellant were given an opportunity to present his witnesses.

Still in argument, Learned Counsel submitted that the lower court did not consider all the six grounds of appeal submitted by the appellant and this offends the decision in Eghareuba Vs Osagie (2009)18 NWLR (Pt. 1173)299 at 310 – 311 paragraph A, State Vs Adjie (2000)11 NWLR (Pt.678) 438, Union Bank of Nigeria Ltd Vs Nwokolo (1995) 6 NWLR (Pt.400) 127.

In conclusion Learned Counsel urged this court to resolve this issue in favour of the appellant.

The passage at page 12 of the record which Learned Counsel made reference to, reads as follows:-
“We notice that the lower court enjoin to (sic) applicant to confirm his claim by presenting witness but fail to the court then turned to the Respondent and asked him if he can swear to rebute (sic) the claim. As such one will notice that this swearing by the Respondent, this court has nothing to do but to affirm the declaration.”

The submission of the Learned Counsel for the appellant in a nutshell is that his client was not given a fair hearing because the trial court did not send some officers to take the statement of the Appellant’s witnesses in their respective domain. It is also the Learned Counsel’s contention that there is nothing in the record showing a refusal by the appellant to produce his witnesses and that the lower court only manufactured the view that the Appellant refused to produce his witnesses. In order to ascertain whether the Appellant was given or denied fair hearing, I have to turn to the proceedings at the Upper Shariah Court Koko. At page one of the records of appeal, the following question and answer were recorded thus:-
“CT: To the App: Have you come with your witnesses whom you said that you have?
Ans: I did not come with my witnesses because they are old and cannot come to Koko town.”

Also at page 2, at the last paragraph, the following question and answer were recorded thus:-
“CT: To the App: Do you have witnesses over your claim?
Ans: My Lord I have for Abdu Iri was invited before the village head and he was informed that this farm is not part of the inheritance. He agrees that is not for inheritance but he was part of its deforested. As such he was seeking for his own share.”

On the submission by the Learned Counsel for the Appellant that the lower court did not consider all the grounds of appeal canvassed before it, I wish to state that it is not mandatory for an appellate court to consider all the grounds of appeal, if is its opinion one or some of the grounds of appeal can conveniently determine the appeal. I have read through the record of this appeal and I am of the firm view that there is no feature that will warrant this court to interfere with the concurrent decision of the two lower courts.
I have found no merit in the argument in favour of the Appellant on this issue which I resolve in favour of the Respondent. The 2nd and 3rd issues from which this issue is formulated are hereby dismissed.
Having resolved the two issues formulated for determination of this appeal against the appellant, this appeal shall be and it is hereby dismissed.
I assess the cost of prosecuting this appeal at N30,000.00k in favour of the Respondent and against the Appellant.

TUNDE O. AWOTOYE, J.C.A.: I was opportuned to have gone through the judgment just delivered by my learned brother PAUL A. GALINJE (PJ) JCA. I am in total agreement with the reasoning and conclusion therein.
I also resolve the two issues formulated for determination against the appellant. I agree that this appeal is to be dismissed.
I abide by the consequential orders (costs inclusive) in the leading judgment.

M. L. SHUAIBU, J.C.A.: My learned, Paul A. Galinje, JCA, permitted me to read in draft, the judgment just delivered. I agree with my noble lord that the appeal lacks merit. A party who fails to take advantage of the fair fearing atmosphere created by the court cannot turn round and accused the same court for denying him one. That is the case here. The Appellant was accorded ample opportunity to present his witnesses but failed to utilize the opportunity and cannot now complain.
In is in the light of the foregoing reasons and the fuller reasons given the lead judgment that I too dismiss the appeal. I abide by the orders in the lead judgment.

Appearances

Y. Y. GwazawaFor Appellant

AND

M. J. MagajiFor Respondent