NATIONAL UNION OF ROAD TRANSPORT WORKERS v. UPPER SHARIA COURT, ROCK ROAD, T/WADA, KADUNA &ORS (2019)

NATIONAL UNION OF ROAD TRANSPORT WORKERS v. UPPER SHARIA COURT, ROCK ROAD, T/WADA, KADUNA &ORS

(2019)LCN/13168(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of May, 2019

CA/K/39/2018

RATIO

JURISDICTION: DEFINITION

The term Jurisdiction has been defined to mean the authority which a Court has to decide matters that are litigated before it and for it to decide or determine if there is no restriction or limitation imposed on it by the statute that accords jurisdiction to it to determine or inquire into such matter, then it is said the Court has unlimited jurisdiction. The limitation may either be as to the kind or nature of the actions and matters which the particular Court has cognizance or as to area over which jurisdiction extends or it may partake of both characters. See Ndaeyo v. Ogunaya (1977) 1 SC 11; Igbokwe v. INEC & Ors. (2010) LPELR-4293 (CA); National Bank Nig. Ltd. v. Shoyoye (1977) 5 SC 181, 190-191.PER SAIDU TANKO HUSSAINI, J.C.A.

JURISDICTION: SECTION 3(1) OF THE SHARIA PENAL CODE LAW OF KADUNA STATE, 2002: WHO DOES IT APPLY TO?
Going by this definition therefore, the exercise of jurisdiction by the Upper Sharia Court under Section 3(1) of the Sharia Penal Code Law of Kaduna State, 2002 is limited only to:
Every person who is a Muslim and/or every other person who voluntarily consent to the exercise of the jurisdiction of any of the Sharia Courts.PER SAIDU TANKO HUSSAINI, J.C.A.

CENTIORARI: WHEN THE REMEDY WILL BE GRANTED

The remedy by Certiorari proceedings will be granted where it is shown that:
(i) There is lack or excess of jurisdiction.
(ii) There is error on the face of the record of an inferior Court.
(iii) There is breach of the rule of natural justice regarding fair hearing. See Chief I. C. Ezenwa v. Bestway electronics Manufacturing Co. Ltd (1999) 8 NWLR (Pt. 613) 61, 82; Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 511, 526-527.PER SAIDU TANKO HUSSAINI, J.C.A.

JURISDICTION: WHETHER AFFIDAVIT EVIDENCE IS REQUIRED TO PROVE JURISDICTION
Jurisdiction being an issue of law, will not require an affidavit evidence on facts to support that contention in the application. See Okonkwo & Anor. v. UBA Plc. (2011) LPELR-23010 (SC); Okereke v. James (2012) LPELR-9347 (SC); ARC v. JDP Const. Nig. Ltd. (2003) FWLR (Pt. 176) 1667, 1680.PER SAIDU TANKO HUSSAINI, 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

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

NATIONAL UNION OF ROAD TRANSPORT
WORKERS (NURTW) Appellant(s)

AND

1. UPPER SHARIA COURT,
ROCK ROAD, T/WADA, KADUNA
2. ABUBAKAR JUMARE
3. MAL. JIBRIN INUWA RESPONDENTS
4. THE REGISTRAR,
UPPER SHARIA COURT,
ROCK ROAD, T/WADA KADUNA Respondent(s)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The High Court of Kaduna State sitting on the 28th October, 2017 dismissed the application brought to it, seeking as it were,
An order of certiorari to remove into this Court and quash the processes, proceedings and Order of the 1st respondent made on the 15/6/2017 in Case No. CRDC/169/2017 Abubakar Jumare v. National Union of road Transport Workers and other

This order is contained in the judgment of the Court handed out on the said date vide Suit No. KDH/KAD/655/2017 which gave rise to this appeal as per the Notice and Grounds of appeal at pages 64-67 of the record. The Notice contains 2(two) grounds of appeal.

The background of facts leading to this appeal relate back to the proceedings taken at the Upper Sharia Court of Kaduna State, Rock Road, Tundun Wada, Kaduna vide the application dated and filed on the 5th May, 2017 for the issuance of Criminal Summons against the appellant among other persons, to pay Diyya over the killing of the wives and children of the complainants in this case arising from the dangerous reckless and

negligent manner her servants rode their vehicle and knocked down the deceased persons along Kaduna Zaria Express way, near Barakallahu, in Kaduna.

The Notice of Preliminary Objection presented at the Court on account of want of jurisdiction of the Court to hear the case as it relates to the appellant was overruled and dismissed at the sitting held on the 15th June, 2017, consequent upon which the appellant, by the Exparte application made on 19th June, 2017 prayed for leave of the High Court of Kaduna State (hereinafter referred to as the ?Court below?) to apply to review that decision by way of an order of Certiorari to remove, for the purpose of being quashed, the proceedings of the Upper Sharia Court, Kaduna.

The Court below took or heard the application, the Motion on Notice and dismissed same in the Ruling/Judgment delivered on the 28/10/2017. The reason the Court gave for coming to that conclusion was on account of the failure of the appellant to furnish sufficient materials to the Court to sustain the reliefs sought by it.

Briefs of argument were filed and exchanged between parties except the 1st and 5th respondents who did

not file any. Appellant?s amended brief of argument filed on 25th May, 2018 was deemed on 9th July, 2018. A Reply brief was filed for the appellant on 14th August, 2018, upon the receipt of the 2nd, 3rd and 4th respondents’ brief of argument, whose brief was filed on the 26th July, 2018.

The appellant and counsel were however absent on the 7th July, 2019 when the appeal came up for hearing. The Rules of this Court under Order 19 Rule 9(4) permit brief(s) of argument filled by the absentee party to be deemed as duly argued as at the date the appeal is taken or heard, hence in the instant appeal case, the:
(i) Amended Appellants brief of argument filed on the 25th May, 2018 and,
(ii) Reply brief filed on the 14th August, 2018 are both deemed as duly argued.

Mr. M. T. Mohammed leading T. A. Bello for the 2nd ? 4th respondents adopted their brief of argument to urge on the Court to dismiss this appeal.

The appellant in his brief of argument had formulated 2(two) Issues at page 3 thus:
?(1) Whether enough materials were not placed before the trial Court to show that the Upper Sharia Court, Rock Road, Tundun

Wada Kaduna has no jurisdiction to try the appellant/applicant (Grounds 1 and 2 of the grounds of appeal).
(2) Whether the religion of an accused person who is not a Muslim standing trial before Sharia Court is not a basis for the determination of the Sharia Court to try such an accused person? (Distilled from Ground 3).?

Arguing the 2 (two) Issues together, learned counsel for the appellant alluded to Section 3(1) of the Shariah Penal Code Law of Kaduna State, 2002, Parts A and B of the Third Schedule to the Trade Union Act, the affidavit in support of the Motion on Notice seeking for the order of certiorari and several decisions to submit that the Upper Sharia Court, Tudun Wada, Kaduna, in the absence of any consent to submit and be part of the proceedings, the Upper Sharia Court lack jurisdiction over the person of the appellant, who is not a Muslim, hence the High Court below was wrong when it refused to quash the proceedings of the said Upper Sharia Court, Tundun Wada, Kaduna, for want of jurisdiction.

Decisions in Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 526-527; Maduabuchi v. A/G. Lagos State (2012) ALL FWLR (Pt. 653) 1977, 1991-1992;

PDP v. Sylva (2012) ALL FWLR (Pt. 637) 606 636; Arjay Ltd. v. AMS Ltd. (2003) 7 NWLR (Pt. 820) 879 were cited and relied on.

The 2nd, 3rd and 4th respondents in their joint brief have argued to the contrary stating that the appellant indeed failed to supply sufficient materials before the Court below to warrant an order of Certiorari being entered in its favour.

With reference to the Preliminary Objection taken at the trial Court, it was argued that the said Preliminary Objection was not backed up by a supporting affidavit knowing fully well that where a preliminary objection revolves around factual situations, an affidavit evidence stating those facts became necessary, as in this case on appeal. Learned respondents’ counsel urged us to affirm the decision of the Court below in that sufficient materials were not placed before it and the Court rightly and justifiably refused the application and dismissed same.

Earlier in the brief of argument presented for the 2nd, 3rd and 4th respondents, their counsel questioned the appropriateness of the brief of argument for the appellant, its regularity and or validity when the appellant failed or refused

to carry along with it, the 1st, 2nd and 3rd accused persons and include them as parties to the application at the High Court, for an order of Certiorari. Learned respondent?s counsel further faulted the appellant whom he said had lumped up issues 1 and 2 (identified by it) and argued them together whereas the 2(two) issues should have been argued separately in the brief of argument as distinct and separate issues.

This appeal, as indicated before, is sequel to the judgment delivered at the Court below on the 28th October, 2017 as per the proceedings at pages 61-63 of the record of appeal. In the concluding paragraphs of that judgment the Court held at page 63 thus:
?On the whole, the final analysis shows that there is no sufficient facts to ground granting the order of certiorari sought by the Applicant. The Applicant has the duty to establish those facts for the grant of the order sought. The Applicant has failed in this regard and in the instant application, the application accordingly fails and is dismissed.? (Words underlined for emphasis only)

At pages 19-36 of the record of appeal is the Motion on Notice by which the

appellant sought an order of Certiorari and filed along with that application is supporting affidavit and other related documents or papers. The facts deposed to in the supporting affidavit at pages 21-23 are quite intriguing but I intend only to reproduce facts contained at paragraphs 3(a)(b) and (c) at page 22 of the records namely: –
3 That on 15/6/2017, at xx 11, Ibadan by Daura Road, Kaduna by 3pm, in the ordinary course of my business, our S. A. Udaga Esq, personally handling this matter informed me and I believe him to be true and correct as follows:
(a) That on 5/5/2017, 2nd 3rd and 4th Respondents respectively filed a Direct Criminal complaint against the applicant and others at Upper Sharia Court, Rock road, Tudun Wada Kaduna. A copy of the said application for issuance of Direct Criminal Summons is attached herewith and marked as Exhibit A.
(b) That on 22/5/2017, he filed a Notice of Preliminary Objection challenging the jurisdiction of the Upper Sharia Court, Rock Road, Kaduna, over the applicant as the applicant is not a Muslim and has not given its consent to the jurisdiction of the Upper Sharia Court over it. a

copy of the Notice of Preliminary Objection is attached herewith and marked as exhibit “B.
(c) That on 15/6/2017 argument on the preliminary objection was taken and he judge of the Upper Sharia Court Rock Road Tundun Wada, Kaduna, ordered that the applicant is a Muslim and he had jurisdiction over it.

The Notice of Preliminary Objection referred to at paragraph 3(b) and attached as Exh. B to the application is at page 36 of the record of appeal wherein the appellant indicated as the grounds for taking the objection, the facts that: –
(i) The 4th Accused person is not a Muslim and is not consenting to the jurisdiction of this Honourable Court to try it.
(ii) The 4th accused person is not owner of the vehicle involved in the accident under reference.
(iii) None of the persons who are accused of the offence under reference are members of the 4th accused person.
(iv) All the persons accused of causing the accident are already standing trial in Magistrate Court Rigachikun.
(v) This Honourable Court therefore has no jurisdiction to entertain this case.?

Mention need to be made at this point about

facts deposed to and contained in the said supporting affidavit to the application which facts were neither denied, challenged nor controverted before the Court below where that application was taken or heard. There was no Counter-affidavit filed to dispute those facts so clearly stated in the supporting affidavit to the application. In other words facts suggesting that the Upper Sharia Court cannot exercise jurisdiction over the appellant was not denied. The fact that the appellant indicated her status as not being a Muslim and who had not consented to submit itself to the jurisdiction of the Upper Sharia Court was also not denied. Also not denied is the fact that the appellant challenged the jurisdiction of the Upper Sharia Court by way of the Notice of Preliminary Objection raised at that Court.
Those points or some of them were brought to bear in the submission made by counsel in their respective briefs of argument filed in this Court just as those same points were made or argued before the Court below as for instance, on the Issue of exercise of jurisdiction over the appellant. We were referred to S. 3(1) of the Sharia Penal Code Law of Kaduna State, 2002

We were referred to parts “A and “B of the Third Schedule to the Trade Union Act as the Law creating or establishing the appellant, the extent, and scope by which the appellant was allowed to operate in the discharge of its duties.
Equally, we were referred to paragraph 3(b) of the Supporting affidavit to the application for an order of Certiorari. We were further referred to the Application for the issuance of Criminal Summons, i.e the document attached to the supporting affidavit to the application and marked as Exh. “A.
Under Section 3(1) of the Sharia Penal Code Law of Kaduna State, 2002, is the provision to the effect that: –
Every person who is a Muslim and/or every other person who voluntarily consent to the exercise of the jurisdiction of any of the Sharia Court established under the Sharia Courts Law, 2001, shall be liable to punishment under the Sharia Penal Code Law for every act or omission contrary to the provisions thereof, of which he shall be guilty within the states.?
By those clear wordings of the enactment all or any Sharia Court (including the Upper Sharia Court) established under

Sharia Courts Law, 2001 will or can exercise jurisdiction on the person of every Muslim and every other person who submitted himself or consented to the exercise of jurisdiction over him by any of those Courts.
The term Jurisdiction has been defined to mean the authority which a Court has to decide matters that are litigated before it and for it to decide or determine if there is no restriction or limitation imposed on it by the statute that accords jurisdiction to it to determine or inquire into such matter, then it is said the Court has unlimited jurisdiction. The limitation may either be as to the kind or nature of the actions and matters which the particular Court has cognizance or as to area over which jurisdiction extends or it may partake of both characters. See Ndaeyo v. Ogunaya (1977) 1 SC 11; Igbokwe v. INEC & Ors. (2010) LPELR-4293 (CA); National Bank Nig. Ltd. v. Shoyoye (1977) 5 SC 181, 190-191.
Going by this definition therefore, the exercise of jurisdiction by the Upper Sharia Court under Section 3(1) of the Sharia Penal Code Law of Kaduna State, 2002 is limited only to:
?Every person who is a

Muslim and/or every other person who voluntarily consent to the exercise of the jurisdiction of any of the Sharia Courts.?
In dealing with this question under Section 3(1) of the Sharia Penal Code Law, care must be taken as not to confuse ?the exercise of jurisdiction? by the Courts over the subject-matter of litigation with the exercise of jurisdiction over the individual. Section 3(1) of the sharia Penal Code Law is with respect to the latter category, i.e the exercise of jurisdiction over persons or individuals hence ?every person who is a Muslim?, willy-nilly, is subject to the jurisdiction of all Sharia Courts established under Sharia Courts Law, 2001 of Kaduna State.
The appellant herein, being the National Union of road Transport Workers (NURTW), is by virtue of the Trade Union Act, i.e, the law establishing it, a creature of Statute and is thus a ?Juristic Person? and a legal entity known to law. The decision in Solomon v. Solomon & Coy. Ltd. (1897) AC 22 establish firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws,

it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties but only as artificial person. This principle by extension applies to Organs or Bodies established by Law or Statutes. The appellant, not being a natural person, but a creation of Statute, the question will not arise whether it is a Muslim or not, but in determining whether the Upper Sharia Court can exercise jurisdiction over this ?person? even though an artificial person, regard has to be heard to proceedings contained in the record of the trial Court so as to decipher whether this ?person? gave its consent or voluntarily submitted itself to the jurisdiction of that Court. If it did, then the Upper Sharia Court has jurisdiction over it and not, if not.
In the Supporting affidavit to the application for an order of Certiorari, is the fact deposed at paragraph 3(b) thus:
?That on the 22/5/2017, he filed a Notice of Preliminary Objection challenging the jurisdiction of the Upper Sharia Court, Rock Road, Kaduna, over the applicant as the applicant is not a Muslim and has not given

its consent to the jurisdiction of the upper sharia Court over it. A copy of the Notice of Preliminary Objection is attached herewith and marked as Exhibit “B?.?
This fact referred to above, was not denied by the party on the other side. In the Supreme Court case of Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266, it was held that:
?I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.?
See further, the decision in Maduabuchi v. A/G Lagos State (2012) ALL FWLR (Pt. 653) 1977, 1991-1992. There was no counter-affidavit filed by any one of them to contradict the fact that the appellant did not submit itself voluntarily to the jurisdiction of the Upper Sharia Court or consented to

the Court?s exercise of jurisdiction over it and this being the position, there is no choice but for the Court to act on the uncontradicted affidavit evidence as duly proved or established.
The appellant having thus established the fact that the Upper Sharia Court cannot exercise jurisdiction over it, as it purport to do, proceedings conducted by that Court in absence of jurisdiction are null and void and such have no legal effect. See the decision in Attorney General, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, 608.
That was the setting as at the date the appellant approached the High Court of Kaduna State with a Motion for an order of Certiorari, to remove to the said Court, proceedings of the trial Court for the purpose of quashing it.
The remedy by Certiorari proceedings will be granted where it is shown that:
(i) There is lack or excess of jurisdiction.
(ii) There is error on the face of the record of an inferior Court.
(iii) There is breach of the rule of natural justice regarding fair hearing. See Chief I. C. Ezenwa v. Bestway electronics Manufacturing Co. Ltd (1999) 8 NWLR (Pt. 613) 61, 82; Agwuegbo v. Kagoma

(2000) FWLR (Pt. 19) 511, 526-527.
The Court below therefore was wrong when it refused to make the order of Certiorari in favour of the appellant even when it is apparent on the face of the record of the Upper Sharia Court that the Court lacked jurisdiction over the appellant but chose to proceed with the case before it.
Issue of want of jurisdiction, if and when raised must be given the seriousness that it deserves being an issue that goes to the root of every case. It is the very foundation upon which the superstructure is built. If therefore, the edifice was built on quicksand, it will collapse like a pack of cards.
Thus the findings made at the Court below for refusing to make or grant the order sought on account of insufficient materials is unfounded and perverse in the light of the affidavit evidence in support of the application made at the Court below, the Notice of Preliminary Objection which clearly was founded or anchored on the issue of jurisdiction or lack of it. Jurisdiction being an issue of law, will not require an affidavit evidence on facts to support that contention in the application. See Okonkwo & Anor. v. UBA Plc.

(2011) LPELR-23010 (SC); Okereke v. James (2012) LPELR-9347 (SC); ARC v. JDP Const. Nig. Ltd. (2003) FWLR (Pt. 176) 1667, 1680. Had the Court below availed itself of the provision of S. 3(1) of the Sharia Penal Code Law and the Trade Union Act, parts A and B of the Third Schedule, the Court ought to have come to a different conclusion to grant the relief sought.

Issue Nos. 1 and 2 considered and addressed together in this discourse are both resolved in favour of the appellant, hence this appeal succeeds and same is allowed.

The Judgment of the High Court of Kaduna State delivered on 28th November, 2017 in Suit No. KDH/KAD/658/2017 is set aside and in its place is entered this judgment, hence an order of Certiorari is issued hereby and accordingly, the proceedings before the Upper Sharia Court Rock Road, Kaduna, are quashed.
That is the order and judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSSAINI JCA and I agree with the reasoning and conclusion of my Lord. Section 3 (1) of the Sharia Penal Code Law of Kaduna State, 2002 was very clear about those that

come within it?s jurisdictional purview when it states that ?every person who is a Muslim and/or every person who voluntarily consents to the exercise of the jurisdiction of any Sharia Court established under the Sharia Court Law, 2001 shall be liable to punishment under the Sharia Penal Code Law for every act or omission contrary to the provision thereof, of which he shall be guilty within the State?. The appellant being neither a Muslim nor a person that voluntarily consented to the jurisdiction of the Upper Sharia Court cannot be liable to punishment under the Sharia Penal Code Law. The lower Court therefore should have quashed by way of certiorari, the ruling of the Upper Sharia Court that overruled the preliminary objection which challenged its jurisdiction. The law is clear: the most important function of certiorari is that by it, in the exercise of the supervisory role of the High Court over inferior Court judgments, orders or other proceedings of the inferior Court, whether civil or criminal, made without or in excess of jurisdiction, may be removed to the High Court to be quashed. See Oduwole v Famakinwa (1990) 4 NWLR Part 143 p.241.

The decision of the lower Court in refusing the application to remove the Ruling of the Upper Sharia Court to it for the purpose of being quashed is wrong and is set aside. I abide by the order made by my learned brother.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read in draft the Judgment delivered by my learned brother, Saidu Tanko Hussaini, JCA.
?
I adopt the views expressed by him on the germane issues arising in this appeal. The Judgment of the Lower Court is hereby set aside, and in its place, an Order of certiorari is hereby issued, by which the proceedings of Upper Area Court, Rock Road, Kaduna are accordingly quashed.

Appearances:

S. A. Udaga, Esq.For Appellant(s)

M.T. Mohammed Esq., with him, T. A. Bello, Esq.For Respondent(s)

Appearances

S. A. Udaga, Esq.For Appellant

AND

M.T. Mohammed Esq., with him, T. A. Bello, Esq.For Respondent