YAHAYA & ORS v. DODO & ORS
(2022)LCN/16627(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/KN/594S/2017
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
TALATU YAHAYA & 5 ORS APPELANT(S)
And
ALHAJI LABARAN M. DODO & 4 ORS RESPONDENT(S)
RATIO
WHETHER OR NOT A COURT CAN ASSUME JURISDICTION IN THE ABSENCE OF HAVING THE CONSTITIONAL POWERS TO DO SO
On the first issue and in addressing the arguments of the Appellants’ counsel that the trial Court instead of concentrating on the issue filed before it went outside it and asked counsel to address it on the issue of jurisdiction, I agree with the submission of the Respondents’ counsel that jurisdiction does not exist in vacuum and I want to add that for this reason, the Court’s jurisdiction is a product of Constitution or a specific statute. Therefore, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so. See the cases of ADETAYO & ORS v. ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) 169; (2010) LPELR – 155 (SC) and LEKWOT v. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT. 515) 22. PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE YARDSTICK FOR DETERMINING FAIR HEARING
On the issue of fair hearing raised by the Appellants, it is trite that the yardstick for determining fair hearing is not whether any injustice has in fact been occasioned on any party due to want of hearing but rather, it is whether an opportunity of hearing has in fact been accorded to the parties entitled thereto. See the cases of ADIGUN v. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (PT. 53) 678; FED. CIVIL SERVICE COMMISSION v. LAOYE (1989) 2 NWLR (PT. 106) 652; UBN PLC v. ASTRA BUILDERS (WA) LTD (2010) ALL FWLR (PT. 518) 865; (2010) 2 SCNJ (2012) ALL FWLR (PT. 607) 726 AT 738 – 739 F – A. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellants herein, instituted an action before Waje No. 7 Sharia Court in Kano to distribute the estate of their late father who died some years back, after their father died they never distributed the property among themselves. The Respondents explained to the Court that the Emir’s Court had already distributed the property since 1952 and upon verification by the Court from the Emir’s palace and the reply by the Wazirin Kano of the Kano Emirate Council, it was discovered that one Mairo came to the Emir of Kano’s palace in 1952 and sought for the Emir to distribute the estate of her late husband between her children Abdulkadir, Muhammad and Abbani, where upon the Emir instructed the Imam to divide to each person and give him his share.
The Waje No. 7 Sharia Court after reading the reply of the Wazirin Kano, advised the Appellants to file an appeal against the judgment of the Emir’s Court. The Appellants then filed a motion seeking for extension of time to file an appeal before the Sharia Court of Appeal, Kano and the Sharia Court of Appeal, Kano in its ruling held that the Waje No. 7 has no power to make such directive to appeal before the Sharia Court of Appeal but the Upper Sharia Court of Appeal and because of that, the Sharia Court struck out the matter.
The Appellants then filed their application at the Upper Sharia Court and in its ruling, the Court declined jurisdiction to entertain the application and referred the Appellants back to the Sharia Court of Appeal on the ground that the Court was equivalent to the Emir’s Court at the time.
The Appellants at the Sharia Court of Appeal then filed a motion seeking for an extension of time to file an appeal for the second time and on the day fixed for the hearing, the Court drew the attention of counsel to address the Court on whether it has jurisdiction to entertain the application because the case had been in existence before the Sharia Court of Appeal was established.
After listening to the address of counsel with regard to its jurisdiction to entertain the application of the applicant before it, the Sharia Court of Appeal per Honourable Kadi Tijanni Yahaya Dukawa, Honourable Kadi Mukhtar Muhd Kunti, Honourable Kadi Abubakar Isma’il Kankarofi and Honourable Kadi Ibrahim Ya’u Umar gave judgment in the Suit No: SCA/KN/CV/MT/185/2012 and held that the Court has no right to grant an extension of time to appeal against the decision of the Emir’s Court made in 1952 and thus dismissed the motion filed by the Appellants.
Dissatisfied with the judgment of the Court aforementioned, the Appellants filed a Notice of Appeal to this Court and the parties to the appeal consequently filed and exchanged their respective briefs of argument.
The Appellants’ Brief of Argument was filed on the 17th day of March, 2021 and settled by their Counsel, Nasir Abdurrahman Esq. wherein 3 (three) issues for determination were formulated as follows:
1. Whether the trial Court was right to have entered judgment in refusing the application being it has no jurisdiction to do so. (Distilled from Ground 1)
2. Whether refusing to enlarge time is a denial of fair hearing to the Appellants. (Distilled from Ground 2)
3. That the judgment of the trial Court is against the weight of evidence. (Distilled from Ground 3)
On issue one, the learned Appellants’ Counsel submitted that jurisdiction is determined by the Plaintiffs’ claim as it was decided in the case of MUSA DADE v. GAMBO NA HAUWA (2006) SLR PART III PAGE 26. The Appellants’ Counsel further submitted that instead of the trial Court to concentrate on the issue filed before it, it went outside it and went ahead to ask counsel to address it on jurisdiction and abandoned the application seeking for extension of time to file an appeal out of time.
On issue two, the Appellants’ Counsel submitted that the refusal of the trial Court to allow the application for extension of time to appeal out of time because the Sharia Court of Appeal 1960 does not provide it, contradicts the provision of the Constitution and not in line with the case of ALHAJI AGBEBU v. SHEHU BAWA (1992) 6 NWLR (PT. 245) 60 P. 88. Counsel also cited the case of SHEHUMAN (representative of Ibrahim) v. ISYAKU & 6 ORS (1961 – 1989) 1 SLRN 150.
In arguing issue three, the Appellants’ Counsel referred to the argument under issue one and two already argued by him, and in conclusion argued that the decision of the trial Court has occasioned a serious miscarriage of justice particularly by enriching the Respondents and thus urge this Court to allow the appeal by wholly setting aside the judgment of the trial Court with cost and to extend the time the Appellants to file an appeal out of time against the judgment of the Emir’s Court Kano delivered in 1952.
On the other hand, the Respondents filed their Respondents’ Brief of Argument on the 22nd of February, 2022 and settled by their Counsel Abdul Adamu, Esq. raising one issue for determination as follows:
Whether the lower Court was right to have declined jurisdiction to hear and determine the Appellants application for extension of time to Appeal against the Emir’s Court judgment delivered sometime in 1952.
The learned Respondents’ Counsel argued that jurisdiction does not exists in vacuum because all Courts of law derive their power and authority under the Constitution or some specific statutes and that the Appellants failed to cite any provision empowering the trial Court to hear and determine the Appellants’ application for extension of time to appeal against the decision of the Emir’s Court in 1952. The learned Respondents’ Counsel referred to the case of BOKO v. NUNGWA (2019) 1 NWLR (PT. 1654) PAGE 395 PARTICULARLY PAGE 429 PARAS D – E.
The Respondents’ Counsel also submitted that while it is within the authority of the Court to exercise judicial power, the Court must be mindful of whether it has power to entertain the suit or appeal placed before it and Section 6 of the Constitution confers jurisdiction on the Court to adjudicate on matters properly placed before it and where there is no jurisdiction as conferred by the Constitution, the Court must refrain from exercising same.
The Respondents’ Counsel argued further that, there is no provision in the Constitution which empowers the Upper Sharia Court or Sharia Court of Appeal to hear and determine the decision of the Emir’s Court delivered in 1952 and as such the case cited by the Appellants is distinguishable from the case on hand. On this point, counsel cited the case of ADEGOKE v. ADESANYA (1989) 9 NWLR (PT. 109) PAGE 250 in support.
The learned counsel for the Respondents in response to issue two argued by the Appellants’ Counsel, submitted that Appellants’ argument is misplaced being that the Court invited counsel to address it on whether it has jurisdiction to hear the motion for extension of time to appeal against the decision of the Emir’s Court delivered sometime in 1952 after which the Court then gave its decision. In conclusion, the learned Respondents’ Counsel urged the Court to affirm the judgment of the trial Court below.
RESOLUTION OF THE ISSUES
Having summarized the arguments of the parties herein, I shall now proceed to determine the issues raised in this appeal and in doing so, I will adopt the issues one and two formulated by the Appellants in their Brief of Argument which in my opinion will sufficiently deal with the issues between the parties herein and I shall consider them together as follows:
Whether the trial Court was right to have entered judgment in refusing the application being it has no jurisdiction to do so AND whether refusing to enlarge time is a denial of fair hearing to the Appellants.
On the first issue and in addressing the arguments of the Appellants’ counsel that the trial Court instead of concentrating on the issue filed before it went outside it and asked counsel to address it on the issue of jurisdiction, I agree with the submission of the Respondents’ counsel that jurisdiction does not exist in vacuum and I want to add that for this reason, the Court’s jurisdiction is a product of Constitution or a specific statute. Therefore, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so. See the cases of ADETAYO & ORS v. ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) 169; (2010) LPELR – 155 (SC) and LEKWOT v. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT. 515) 22.
The Sharia Court of Appeal was established in 1960 as a Northern Regional Court of Appeal to determine appeals emanating from the decisions of Area and Upper Area Courts in questions of Islamic personal law. It was created by the Laws of Northern Nigeria, Cap 136 of 1960 and came to light again by the provisions of the 1999 Constitution as amended, which was the substantive law in place when the trial Court was called to determine the motion for extension of time to hear the appeal before it and does not have any provision for appeals from the Emir’s Court. It is therefore the opinion of this Court that the application filed by the Appellants having not been properly placed before the Sharia Court of Appeal, that Court therefore has no jurisdiction to determine same.
On the issue of fair hearing raised by the Appellants, it is trite that the yardstick for determining fair hearing is not whether any injustice has in fact been occasioned on any party due to want of hearing but rather, it is whether an opportunity of hearing has in fact been accorded to the parties entitled thereto. See the cases of ADIGUN v. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (PT. 53) 678; FED. CIVIL SERVICE COMMISSION v. LAOYE (1989) 2 NWLR (PT. 106) 652; UBN PLC v. ASTRA BUILDERS (WA) LTD (2010) ALL FWLR (PT. 518) 865; (2010) 2 SCNJ (2012) ALL FWLR (PT. 607) 726 AT 738 – 739 F – A.
It is very clear from the Record of Appeal as contained at page 59, that the Sharia Court of Appeal gave opportunity to counsel for the parties before it, to address it about its jurisdiction to hear the application by the Appellants for extension of time to hear the appeal against the decision of the Emir’s Court made in 1952 before the establishment of the Sharia Court of Appeal and the Counsels indeed addressed the Court on the issue of its jurisdiction to hear the Appellants’ application before it after which the Court considered the said arguments before the Court gave its decision, and I agree with the Respondents that the argument of the Appellants on the issue of fair hearing as contained in paragraphs 4.2.01 – 4.2.05 of their brief is misplaced.
Before I conclude, it is trite that once the Court discovers it has no jurisdiction, it cannot proceed with the determination of any case, issue or application before it. The only thing a Court can do where it lacks jurisdiction is to strike out the case, so that a competent Court with jurisdiction can entertain and determine the case and doing so cannot amount to lack of fair hearing.
Flowing from all my findings on both issues, it is therefore clear that the trial Court was right in refusing the application on the ground that it has no jurisdiction to do so, and that refusing to enlarge time does not in any way amount to a denial of fair hearing to the Appellants.
The issues are therefore resolved in favour of the Respondents against the Appellants.
In the foregoing circumstances, I do not see any reason why the judgment of the Sharia Court of Appeal, Kano should be disturbed as this Court shares the mind of the Court below in giving its decision also having in mind, the findings of this Court as given above. I will also wish to state here that the issues leading to the filing of the motion for extension of time to appeal is one that should possibly be made in a fresh action before a Court seized with jurisdiction.
In view of my findings made hereinabove, this Court affirms the judgment of the Sharia Court of Appeal, Kano and decline the jurisdiction to extend the time within which the Appellants herein would file an appeal out of time against the judgment of the Emir’s Court Kano delivered in 1952.
This appeal lacks merit and it is accordingly hereby dismissed. I make no further order as to cost.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, before now, the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusion that the appeal is unmeritorious and should be dismissed.
I dismiss the appeal and award no cost.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother MOHAMMED BABA IDRIS, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
N. Abdulrahman, Esq. For Appellant(s)
…For Respondent(s)