ZAMFARA STATE RELIGIOUS PREACHING & ESTABLISHMENT OF JUMAAT MOSQUE COMMISSION & ANOR v. MUKADDANI
(2020)LCN/15828(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, December 03, 2020
CA/S/69/2018
Before Our Lordships
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
1. ZAMFARA STATE RELIGIOUS PREACHING AND ESTABLISHMENT OF JUMAAT MOSQUE COMMISSION 2. KAURA NAMODA EMIRATE COUNCIL APPELANT(S)
And
ALHAJI ALIYU MUKADDANI (For Himself And On Behalf Of The Adherent Of Dariqatu Tijjaniya In Dogon-Kade Village) RESPONDENT(S)
RATIO:
EXAMINATION OF DOCUMENTS TENDERED AS EXHIBITS WHEN SUCH EXAMINATION WILL AMOUNT TO A FACT-FINDING INVESTIGATION
The settled position of the law is that it is not proper for a trial Court to embark upon the examination of documents tendered as exhibits when such examination will amount to a fact-finding investigation that would lead to the discovery of facts required for the proof of evidence required in the matter. See the case of WEST AFRICAN BREWERIES LTD vs. SAVANNAH VENTURES LTD (2002) FWLR (PT. 113) PG. 55 AT 72 R. 21 cited by learned Respondent’s Counsel. See also the case of OJENGBEDE vs. ESAN & ANOR (2001) LPELR-2372 (SC) where the apex Court per IGUH, JSC had this to say on the subject:
“There can be no doubt that the official language of superior Courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of witness and an arbiter at the same time in the same proceedings. See Damina v. The State (1995) 8 NWLR (pt.415) 513 at 539 -540.”
See in addition, the decision of this Court in the case of LAWSON vs. AFANI CONTINENTIAL CO. NIG LTD (2002) FWLR (PT. 109) 1736 AT 1756-57 where this Court per SALAMI, JCA had this to say on the subject:
“The document comprised in Exhibit 1 is written in Hausa. It was produced in evidence and marked Exhibit 1 without even translating it into English, the language of the trial Court and this Court. This Court and the Court below could not take a full advantage of its contents. Before the Courts could use it properly, its translation ought to have been produced in evidence along with it or a witness could have been put in the witness box to do the translation. The Appellant opted for neither notwithstanding the order of the trial Court that same be translated in English. The translation if any was not put in evidence at the trial Court. The use of the trial Court of Exhibit 1 respectfully is improper because he has thereby combined his role on adjudication with that of a translator who ordinary ought to have been called to testify in chief and cross-examined and if need be re-examined. If the Appellant left the document un-translated until he closed his case, the only course left to the Court is to discountenance it. By chanting the course it did, it abandoned it toga of impartiality and descended into the arena of the side of the party who produced the document that requires translation and did not translate it into the language of the Court, English.” FREDERICK OZIAKPONO OHO, J.C.A.
POSITION OF LAW EVIDENCE ALREADY REJECTED BY THE COURT
The settled position of the law is that evidence already rejected by the Court, be it documentary or oral cannot be later used in the course of trial. See the cases of EKPEYONG vs. ESSIET (1975) 3 SC 107; ARUBI vs. OFFSHORE OPERATORS (NIG) LTD (1978) 342 AT 345 and BABATOLA vs. ALADEJANA (2001) 6 SC 124. FREDERICK OZIAKPONO OHO, J.C.A.
ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT
In addition, Section 46(2) of the 1999 Constitution, as amended confers special jurisdiction on the High Court (which has been interpreted to mean the High Court of a State or the Federal High Court) to make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, to which the Applicant may be entitled. See the cases of FAJEMIROKUN vs. COMMERCIAL BANK OF NIGERIA LTD & ANOR (2009) 2-3 SC (PT. 1135) 58; OLUTOLA vs. UNIVERSITY OF ILORIN (2004) NSCQR 256 AT 279. FREDERICK OZIAKPONO OHO, J.C.A.
SIGNIFICANCE OF FUNDAMENTAL RIGHT
A fundamental right is more significant than the rights under other statutes or laws as it goes to the root of the day-to-day existence of the citizen and corporate living of the citizens: See ESSIEN vs. INYANG (2011) LPELR (4125) 1 at 24. FREDERICK OZIAKPONO OHO, J.C.A.
DUTY OF COURT IN ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT
The Courts are under a duty as provided by the Constitution to see that executive and administrative actions are in conformity with the fundamental rights of persons. See the case of OBAYIUWANA vs. MINISTER OF FCT (2009) LPELR (8202) 1 at 26. FREDERICK OZIAKPONO OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Zamfara State sitting at Kaura Namoda in Suit No. ZMS/KN/M.449/2017 delivered on the 25th day of January, 2015 Coram: M. YUSHA’U, J granting the claims of the Respondent at the Court below. The Respondent herein, was the Applicant at the Court below who filed an Application (Originating Motion) dated the 12th day of October, 2014 for the Enforcement of the Applicant’s (Respondent’s) Fundamental Human Rights to Freedom to practice the Religion of his choice by performing the Wazifa, Zikirin Jumu’at and Maulud in the 1st Central Mosque of Dogan-Kade, Kaura Namoda Local Government Area of Zamfara State.
The facts of the instant case is that the Respondent is an adherent of an Islamic sect known and called the Dariqatu Tijjaniya in Dogon-Kade Village, Zamfara State of Nigeria. As part of the Muslim Ummah, the sect is said to have a large segment and following of the Muslim Ummah and for ages have been conducting their religious activities to wit: the “Wazifa” (supplications, which comprised seeking of forgiveness of Allah); the “Istigfar” (saying the praises of Allah); the “Zikirin Jumaah” (praises/prayers for Jumaat); the “Hailala” and “Maulud” (an Islamic event that marks the birth of the Holy Prophet and Messenger of Allah (S.A.W.) and which is nationally recognized and for which a public holiday is often declared by the Federal Government of Nigeria), all at the 1st Central Mosque of Dogon-Kade Village even before the creation of Zamfara State and the 1st Respondent.
However, the 1st Central Mosque of Dogon-Kade Village belongs to the entire Muslim Ummah to wit: the Respondent and those he represents and also those who do not belong to the Respondent’s sect, to the knowledge of the Appellants. At the same time, there is another Islamic sect known and called the Izala Group, which carry out their own religious activities at the 2nd Jumaat Mosque of Dogon-Kade Village, Zamfara State while the adherents of the Dariqatu Tijaniyya (i.e., the Respondents) sect remain in the 1st Central Mosque of Dogon-Kade Village, where they carry on their religious activities.
It would be recalled that Members of the Respondent’s sect (Dariqatu Tijaniyya) continued carrying out their religious activities peacefully until one Lawali Abubakar (a member of the Izala sect) intruded and got himself enthroned as Deputy Imam of the said Mosque (Na’ibi) of the 1st Central Mosque of Dogon-Kade Village, Zamfara State and thereafter masterminded a plot to prevent adherents of the Dariqatu Tijaniyya sect from further observing their religious activities at the 1st Central Mosque. This soon resulted in a stalemate, which was referred to the Emirate Council and later the 1st Appellant who denied the Respondent’s sect (Dariqatu Tijaniyya) from ventilating their grievances fully and rather only heard the Izala sect and thereafter ordered the Respondent’s sect to desist from further observing his religious activities at the 1st Central Mosque of Dogon-Kade Village.
Attempts made by Appellants to stop the Respondent and those whom he represents led to the institution of Suit No: ZMS/KN/M.449/2017 before the High Court of Justice Zamfara State sitting at Kaura Namoda, seeking to enforce the Fundamental Rights to freedom of Thought, Conscience and Religion as Constitutionally guaranteed under Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as the Article 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004 of the Respondent and his followers. See pages 1 – 23 of the records.
The Contention of the Appellants at the Court below is that the Respondent, by himself and those he represents cannot perform such religious activities in the 1st Central Mosque of Dogon-kade, but rather in their Zawiyya and otherwise cannot perform the said religious activities without the consent and/or approval of the Mosque Committee and those of the Appellants. See generally the counter affidavit of the Appellants at pages 47 – 98 of the records.
On the 15th of November, 2017, the application was argued and the Court below reserved its Ruling in the application to the 29th of November, 2017. See pages 101 – 103 of the records. However Ruling could not be delivered on the said date save on the 25-1-2018 wherein the Court below gave judgment in favour of the Respondents. See pages 104 – 130 of the records. Dissatisfied with the judgment of the Court below, the Appellants have appealed to this Court vide their Notice of Appeal containing seven grounds of appeal filed on the 2nd of February, 2018. See pages 131 – 136 of the records.
ISSUES FOR DETERMINATION:
On the part of the Appellant, three (3) issues were said to be nominated for the determination of this Appeal, out of which this Court found only two (2). The third issue was none existent. It is important to have this mentioned at this stage in addition to the fact that the two (2) issues are most inelegantly drafted. The issues nevertheless are as follows:
1. Whether or not the Applicant (Respondent) and his followers have right to newly introduce and/or Practice such Performance of Wazifa, Zikirin Jumu’et and Maulud in the said Mosque without the consent and approval of the Mosque’s Committee and that of the Respondents (Appellants)?
2. Whether or not the Applicant (Respondent) and his followers are entitled to the relief sought based on the Affidavit Evidence placed before the Lower Court and wrongly misapplied and or disregarded the proper import of the Provision of Section 36 (1), 45 and Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended, Section 5, 5 (H), 8, 9, 10, 11, 12, 13, and 19 of the Religious Preaching and Establishment of Jumu’at Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State 2003 and the entire contents of the Affidavit in Support and Paragraphs 9, 10 and 11 of our Counter Affidavit?
On the part of the Respondent, two (2) issues were also nominated for the determination of this Appeal as follows:
1. Was the Court below correct in law when in the evaluation of evidence it refused to attach any probative value to the Appellants counter affidavit and its annexure? (Grounds 2, 3 and 4).
2. Was the decision of the Court below granting the reliefs of the Respondents correct in law? (Grounds 1, 5, 6 and 7).
The Appellants’ brief of argument dated 2-2-2018 and settled by A. S. YARIMA ESQ., was filed on the 22-10-2018 while the Respondent’s brief of argument dated 12-11-2018 and filed on the 13-11-2018 was settled by IBRAHIM ABDULLAHI ESQ.,. On the 29-9-2020 at the hearing of this Appeal, learned Counsel for the parties adopted the briefs of arguments of the parties and urged the Court to resolve the Appeal in favour of their clients. This Appeal shall however be determined based on the issues nominated by the Respondent as these best addresses the vexed issues involved in this Appeal.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether or not the Applicant (Respondent) and his followers have right to newly introduce and/or practice such performance of Wazifa, Zikirin Jumu’et and Maulud in the said Mosque without the consent and approval of the Mosque’s Committee and that of the Respondents (Appellants)?
In arguing this issue, it is remarkable to note that learned Appellants’ Counsel began by acknowledging the rights of the Respondent to practice any religion of his own choice including such practices and performances of the Wazifa, Zikirin Jumu’at and Maulud, but that such practices and/or mode of worships should not be to the detriment of other peoples’ rights and that in any case, such practices and performances can only be done at the Zawiya of the Respondent and not in public places exclusively owned by the Government (Muslim Ummah), where it can only be done legally by a prior approval of the appropriate Authorities such as the Mosque Committee provided under Sections 5, 10 and 12 of the Religious Preaching and Establishment of Jumm’at Mosque and Idi praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State, 2003.
For the avoidance of doubt, learned Counsel drew attention to the fact that the Zamfara State Government established a Commission, which is the 1st Appellant herein, to take charge of Religious matters and that the Commission has been functioning and discharging its duties and responsibilities in the State. According to Counsel, the Commission came to the conclusion that since such practices and performances are rather novel and have never been done since the inception of the Mosque, the acts of the Respondents should be stopped forthwith and not be taken as a violation of the Fundamental Rights of the Respondents to worship in the manner they want. Counsel argued that the action of the 1st Appellant is based on the need to maintain peace and unity in the Community in keeping with the need to maintain public interest. Counsel referred this Court to Sections 36(1) and 45 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned Appellants’ Counsel also submitted by way of illustration, that under Islamic Law a person cannot build a Mosque in a plot of land without the consent and approval of the owner of the land, talk less of practicing such performances in the Mosque without the consent and authority of the Mosque Committee and as well as the consent and authority of the 1st and 2nd Appellants in Zamfara State. For this, Counsel drew attention to Sections 10 and 12 of the Religious Preaching and Establishment of Jumm’at Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State 2003.
Counsel further drew attention to the book of Muktasar and Bulugul Mirtami, which clearly prescribes the need to obtain prior consent and approval before performing prayers in a public place without the consent of the appropriate body, as such an act could be considered as Gasbu (an act of snatching on confiscation), which is prohibited under Islamic Law.
Learned Counsel further argued that the Respondent has the right to engage in such religious practices in their Zawiya, but which can only be allowed in the Mosque with the consent of the appropriate authority, provided there is no resistance or complaint by the Mosque Committee (and the entire Muslim Ummah); and that where there are such complaints by the Mosque Committee (Muslim Ummah) on the ground that such practices shall engender or lead to confusion or insecurity and/or breach of the peace and order in the society, then the Appellants have the power to refuse or stop such practices as they had done in the instant case pursuant to Sections 5, 10 and 12 of the Religious Preaching and Establishment of Jum’at Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State, 2003. Against the backdrop of the foregoing, learned Appellant’s Counsel urged this Court to resolve this issue in favour of the Appellants.
It was however, further argued by the Appellant that the Respondents in the first place were not entitled to have introduced the practices and performances of the Wazifa, Zikirin, Jumu’at and Maulud in the 1st Central Mosque of Dogon-Kade, Kaura Namoda Local Government Area of Zamfara State based on a number grounds, thus:
a. The Mosque was established in the year 1950 and that about ten (10) Imams were so far appointed and who led the people for prayers and that such practices and/or performances have never for once been done throughout their lifetimes.
b. That the consent of the Appellants was never sought and obtained by the Respondent to practice such performances in the Mosque as required by law and at least in keeping with the overriding interest of the Public.
c. That the Mosque Committee on behalf of the entire Muslim Ummah who are performing their daily prayers in the said Mosque complained bitterly about such practices and performances, which is a development capable of causing a breakdown of law and order. Counsel urged this Court to resolve this issue in favour of the Appellants.
ISSUE TWO:
Whether or not the Applicant (Respondent) and his followers are entitled to the relief sought based on the Affidavit Evidence placed before the Lower Court and wrongly misapplied and or disregarded the proper import of the Provision of S. 36 (1), 45 & Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended; S. 5, 5 (H), 8, 9, 10, 11, 12, 13, and 19 of the Religious Preaching and Establishment of Jumu’at Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State 2003 and the entire contents of the Affidavit in support and Paragraphs 9, 10, & 11 of our Counter Affidavit?
In arguing this issue, learned Appellant’s Counsel submitted that the Respondent is not entitled to the reliefs he sought at the Court below and in the process repeated basically the arguments canvassed in issue one herein. However, a careful perusal of his arguments in support of issue two, being a rehash of the arguments canvassed in issue one, simply means that it would be needless waste of time to repeat these arguments here.
The only exception and perhaps only addition is the fact that under the exercise of the Rights Guaranteed under Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), the exercise of the rights enumerated therein can be restricted or curtailed under Section 45 of the said Constitution for purposes of maintaining public safety, public order, public morality, public health and for the purpose of protecting the rights and freedom of other persons. In support of this contention, counsel cited a plethora of decided cases, some of which are: CALNIA AIRWAYS (1987) 4 NWLR (PT. 163) 507; IBIDO vs. LUTHANSA AIRLINES (1997) 4 NWLR (PT. 598) 124; OLUSEGUN ADEBAYO vs. PDP (2013) LPELR-SC; GEN. SANI ABACHA & ORS vs. CHIEF GANI FAWEHINMI (2000) LPELR-SC.45/1997, RATIO 25; NMCN vs. ADESINA (2016) LPELR- 40C10 (CA) and RANSOME-KUTI vs. A-G FEDERATION (1985) 7 NWLR (PT. 6) 211 AT 299. Counsel urged this Court to allow the Appeal and set aside the judgment of the Court below.
RESPONDENT:
ISSUE ONE:
Was the Court below correct in law when in the evaluation of evidence, it refused to attach any probative value to the Appellants counter affidavit and its annexure?
In arguing this issue, learned Respondent’s Counsel submitted that the counter affidavit of the Appellants filed in opposition of the grant of the originating motion of the Respondents as Plaintiff at the Court below, had annexed to it documents, all written in vernacular (i.e. Hausa language) which is foreign and not regarded as the language of the Court below. He said that not only were the documents made in a foreign language, but also public documents, which were not certified at all as required by the provisions of the Evidence Act, 2011. These documents can be found at pages 47 – 52 of the records while the annexure to the counter affidavit can be found at pages 53 – 98 of the records. Exhibit A (at page 58 of the records), Exhibit D1 (at page 54 of the records), Exhibit B (at page 54 of the records), Exhibit E (at page 58 of the records), Exhibit F (at page 57 of the records), Exhibits I & J (at pages 72 – 73 of the records), letter dated 3-10-2017 (at page 80 of the records) and the letter dated 9-10-2017 (at page 91 of the records).
Learned Counsel contended that the Appellants’ Counsel was alive to the fact that the documents were indeed made in a foreign language but deliberately annexed same without translating them into the language of the Court, which is the English language. See page 45 of the records. The argument of Counsel is that having shown that the Appellants knew that it frontloaded inadmissible documents, common sense and a little bit of due diligence would have put the Appellants on guard to file a further counter affidavit wherein they would have annexed the translated versions of the documents made in the Hausa Language and at the same time have an opportunity to certify the public documents that were not hitherto certified. But that the Appellants went to sleep and were merely contented by urging the Court to cause to be translated the documents into the language of the Court. Suffice this to state, Counsel argued that even if the Court below had the powers to do what it was enjoined by the Appellants, to do, he contended that, that would not have cured the issue of non – certification as a Court of law would not lend its machinery for the conduct of an illegal proceeding.
It was also argued by Counsel that the Court below in the evaluation of the evidence placed before it, especially as it relates to the counter affidavit of the Appellants and the concomitant annexure, made copious references to same and in its evaluation as well as the call of the Appellants for the Court to have the annexure translated into the language of the Court, held thus: (See page 122 lines 5 – 23 of the record);
“… Counsel for the Respondents suggested to this Court or apply for the translation of the documents he attached to his counter affidavit. The question begging for an answer is why should the Court endeavor to do so? And for what purpose? In my view, the suggestion was either mischievous or exposed the ignorance of the Counsel to his responsibilities. The law is clear that any person who wishes a Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. See Section 131 (1) and (2) of the Evidence Act, 2011 (as amended). Therefore, if the purpose of attaching any document to the counter affidavit of the Respondent is to establish any fact, then, it is the duty of the counsel to the Respondents where he attaches any such document not coughed in the language of this Court to have the said documents translated. The Court has no business with its translation. Where any document is placed before the Court, which is not written in the language of this Court, this Court will automatically discountenance it.”
The submission of learned Counsel here in agreeing with the Court below, is that the position taken by the Court below is backed by the law and that it is not proper for a trial Court to embark upon the examination of documents tendered as exhibits when such examination will amount to a fact finding investigation that leads to a discovery of the facts, which could have been proved by evidence. Counsel cited the case of WEST AFRICAN BREWERIES LTD vs. SAVANNAH VENTURES LTD (2002) FWLR (PT. 113) PG 55 AT 72 R 21. Similarly, on the inadmissibility of documents not written nor translated into the English language, Counsel referred to the case of LAWSON vs. AFANI CONTINENTIAL CO. NIG LTD (2002) FWLR (PT. 109) PG 1736 AT 1756-57. See also the cases of RUFAI vs. STATE (2001) FWLR (PT. 65) PG 435 AT 442 R.4; NWALI vs. THE STATE (1991) LPELR-2098 (SC) Pp. 12-13, paras. G-A; OGUNYE vs. THE STATE (1999) LPELR-2356 (SC).
Against the backdrop of the foregoing, learned Respondent’s Counsel opined that since the Appellants left Exhibit A (at page 58 of the records), Exhibit D1 (at page 54 of the records), Exhibit B (at page 54 of the records), Exhibit E (at page 58 of the records), Exhibit F (at page 57 of the records), Exhibits I & J (at pages 72 – 73 of the records), letter dated 3/10/2017 (at page 80 of the records) and the letter dated 9/10/2017 (at page 91 of the records) document un-translated until they adopted their written addresses and the case at the Court below was subsequently reserved for Ruling, the only course left to the Court below was to discountenance it and which the Court below properly did. In addition, he said that this, the Court below had to do in order not to abandon its toga of impartiality and not to be said to have descended into the arena on the side of the Appellants who filed the said un-translated documents that require translation.
Learned Respondent’s Counsel also submitted that in law, documentary evidence has been held to be the best evidence and the hanger upon which oral evidence can be assessed. See the case of EGHAREVBA vs. OSAGIE (2009) 18 NWLR (Pt. 1173) 299 and he argued that the purported un-translated documents having been properly discountenanced by the Court below, the Court cannot utilize any oral evidence of the Appellants, which is intended towards giving life to the rejected un-translated documentary evidence hitherto discountenanced by the Court below. The law is that rejected evidence be it documentary or oral can no longer be used in the course of trial. See the cases of EKPEYONG vs. ESSIET (1975) 3 SC 107; ARUBI vs. OFFSHORE OPERATORS (NIG) LTD (1978) 342 AT 345 and BABATOLA vs. ALADEJANA (2001)6 SC 124.
It is submitted for the Respondent that paragraphs of the counter affidavit of the Appellants that introduced the said un-translated documents annexed to the counter affidavit cannot fare better than the documentary evidence discountenanced by the Court below as they are all affected by the same virus. See the case of NIGERIAN PORTS PLC vs. BEECHAM PHARMACEUTICAL PTE LTD & ANOR (2012) LPELR-15538(SC), where the Supreme Court of Nigeria per NGWUTA, JSC stated thus:
“A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also contents of a rejected document cannot fare better than the document itself.”
See also the Supreme Court decision in NIGERIAN PORTS PLC vs. BEECHAM PHARMACEUTICAL PTE LTD & ANOR (2012) LPELR-15538(SC), per FABIYI, JSC stated thus:
“As well, the Court must not rely on parole evidence in respect of a document it had rejected or excluded as an exhibit. The document is irrelevant and goes to no issue. See UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 399 and ACB Ltd. v. Gwagwada (1994) 5 NWLR (pt.342) 25 at 31 both cited by respondent’s counsel.”
Learned Counsel further argued that in law where a document is pleaded, but not tendered in evidence the paragraph of the pleading, pleading the document (in the instant appeal, the paragraphs that introduced the inadmissible documents) are deemed to have been abandoned. See the case of OBA R. A. A. OYEDIRAN OF IGBOLAND vs. H. H. OBA ALEBIOSU II & ORS. (1992) 6 NWLR (PT.249) AT P. 530. As far as Counsel is concerned it will amount to inviting the Court below to conduct an irregular proceeding to consider all such paragraphs as such a call cannot stand more so in the face of where the Court below has refused to accede to the antics of the Appellants. The argument of Counsel therefore, is that the Appellant’s contention that there was no proper evaluation and/or consideration of the documents annexed to the counter affidavit of the Appellants cannot stand and indeed belies the contents of the records of appeals itself. The further argument of learned Counsel is that the Court below having carried out a proper evaluation of the evidence put before the Court below, this Court sitting on appeal cannot disturb the findings of the Court below. See the case of FABUMIYI vs. OBAJI (1968) NMLR at 247. Counsel finally urged this Court to resolve this issue in favour of the Respondent and against the Appellants.
ISSUE TWO:
Was the decision of the Court below granting the reliefs of the Respondents correct in law?
In arguing this issue, learned Respondent’s Counsel drew Court’s attention to the contention of the Appellants in paragraph 4 at page 6 of their brief to effect that by virtue of Section 11 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) law No. 14, Laws of Zamfara State 2003, before a party who is aggrieved with the decision of the 1st Appellant must seek redress by way of enforcing his Fundamental Rights, he has to first of all file a complaint to the office of the Governor of Zamfara State. Counsel further drew attention to Appellant’s paragraph 7 where it was contended that by virtue of Section 10 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) law No. 14, Laws of Zamfara State 2003, it is the Shariah Court that has the original jurisdiction to determine the claims of the Respondent at the Court below and not the High Court of the State.
Against the backdrop of the foregoing, Counsel contended that the claims of the Respondent at the Court below was one seeking to enforce his Fundamental Human Rights as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He further contended that the 2009 Rules under which the Respondent had predicated his claims were made pursuant to the powers conferred on the Chief Justice of the Federation pursuant to Section 46 (3) of the 1999, Constitution for the purposes of advancing and realizing but not for the restriction of the rights contained in Chapter 4 of the Constitution and the provisions of the African Charter of Human and Peoples Rights. Counsel also took the opportunity to itemize the objectives of the Rules, which he submitted are geared towards ensuring and enhancing the advancement of the rights of the citizens. See the Case of KWAGE & ORS vs. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR-42508(CA).
The argument of Counsel in support of his contention is that under the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 there are no rules relating to the seeking of consent of any appropriate authority before the enforcement of same. He further argued that Section 46 (2) of the 1999 Constitution, as amended confers special jurisdiction on the High Court (which has been interpreted to mean the High Court of a State or the Federal High Court) to make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, to which the Applicant may be entitled. See the cases of FAJEMIROKUN vs. COMMERCIAL BANK OF NIGERIA LTD & ANOR (2009) 2-3 SC (PT. 1135) 58; OLUTOLA vs. UNIVERSITY OF ILORIN (2004) NSCQR 256 AT 279.
According to Counsel, the sui generis nature of matters commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009 means that Fundamental Rights matters are governed by specific and special Rules of Procedure and that they are not subject, except where the context so admits, to the Rules of Procedure governing other civil matters. And that for this reason, they have nothing to do with the application of established principles of law to such a matter, therefore, the High Court Civil Procedure Rules and/or any Practice Directions made under the any High Court Civil Procedure Rules, or State law like Section 11 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State, 2003 are not applicable. Counsel therefore cited the case of KWAGE & ORS vs. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR-42508(CA), where this Court per OHO, JCA at Pp. 53-54, Paras. E-C stated thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“Perhaps, what the Appellants’ Counsel failed to realize is that the application presented to the Court below was one, which was meant for the enforcement of the Fundamental Rights of the Appellants and that Section 46 (2) of the 1999 Constitution, as Amended confers special jurisdiction on the Court in so doing to make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which the Applicant may be entitled. See the cases of FAJEMIROKUN vs. COMMERCIAL BANK OF NIGERIA LTD & ANOR (2009) 2-3 SC (PT. 1135) 58; OLUTOLA vs. UNIVERSITY OF ILORIN (2004) NSCQR 256 AT 279.”
Learned Counsel therefore urged this Court to be guided by the above stated dicta in jettisoning the argument of the Appellants in that regard and further argued that the Court below was right and alive with the position of the law when it rejected the arguments of the Appellants at the Court on the given subject matter.
On the rights of the Appellants to regulate the activities of the Respondents (i.e. Wazifa, Hailala and Maulud), which the Appellants made a great showing about in their submissions, learned Counsel argued that under the law establishing the 1st Appellant, the functions of the 1st Appellant under Section 5 of the Law does not include regulation of the Wazifa, Hailala and Maulud. In connection with the Appellants’ contention that the Respondent and those whom he represents do not own the 1st Central Mosque and that they cannot practice their religious beliefs/activities therein, Counsel contended that under Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 “Every person shall be entitled to freedom of thought and religion, including freedom to change his religion or belief and freedom (either alone or in community with others and in public or private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”.
As far as Counsel was concerned, the provision of Section 38 of the Constitution, 1999 does not stipulate that a person must be the owner of a public property before he can practice his religion in the given public property and that as long as it belongs to the public, it would be open to the use of all and sundry. He further argued that the position of Islamic law guiding this issue is that the Mosque belongs to no one in particular, but to all and sundry and that whatever control the Appellants supposedly have over the use of the property is only supervisory in nature for the benefit of the entire Muslim Community. The contention of learned Counsel is that the rights of the Respondent, which the Court below enforced, are Fundamental Rights, which stand above the ordinary laws of the land. He cited the case of NURSING AND MIDWIFERY COUNCIL OF NIGERIA vs. ESTHER BOSE ADESINA (2016) LPELR-40610(CA). Conclusively, Counsel urged this Court to dismiss this appeal and resolve the issues formulated for the determination of this appeal in favour of the Respondent and against the Appellants.
RESOLUTION OF APPEAL
At page 122 lines 5-23 of the record of Appeal, the Court below had cause to make the following remarks as its reasons for refusing to accord any probative value to the attached documentary exhibits, which the Appellant as Respondent at the Court attached to its counter affidavit and had placed reliance upon:
“… Counsel for the Respondents suggested to this Court or apply for the translation of the documents he attached to his counter affidavit. The question begging for an answer is why should the Court endeavor to do so? And for what purpose? In my view, the suggestion was either mischievous or exposed the ignorance of the counsel to his responsibilities. The law is clear that any person who wishes a Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. See Section 131 (1) and (2) of the Evidence Act 2011 (as amended). Therefore, if the purpose of attaching any document to the counter affidavit of the Respondent is to establish any fact, then, it is the duty of the counsel to the Respondents where he attaches any such document not coughed in the language of this Court to have the said documents translated. The Court has no business with its translation. Where any document is placed before the Court which is not written in the language of this Court, this Court will automatically discountenance it.”
The settled position of the law is that it is not proper for a trial Court to embark upon the examination of documents tendered as exhibits when such examination will amount to a fact finding investigation that would lead to the discovery of facts required for the proof of evidence required in the matter. See the case of WEST AFRICAN BREWERIES LTD vs. SAVANNAH VENTURES LTD (2002) FWLR (PT. 113) PG. 55 AT 72 R. 21 cited by learned Respondent’s Counsel. See also the case of OJENGBEDE vs. ESAN & ANOR (2001) LPELR-2372 (SC) where the apex Court per IGUH, JSC had this to say on the subject:
“There can be no doubt that the official language of superior Courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of witness and an arbiter at the same time in the same proceedings. See Damina v. The State (1995) 8 NWLR (pt.415) 513 at 539 -540.”
See in addition, the decision of this Court in the case of LAWSON vs. AFANI CONTINENTIAL CO. NIG LTD (2002) FWLR (PT. 109) 1736 AT 1756-57 where this Court per SALAMI, JCA had this to say on the subject:
“The document comprised in Exhibit 1 is written in Hausa. It was produced in evidence and marked Exhibit 1 without even translating it into English, the language of the trial Court and this Court. This Court and the Court below could not take a full advantage of its contents. Before the Courts could use it properly, its translation ought to have been produced in evidence along with it or a witness could have been put in the witness box to do the translation. The Appellant opted for neither notwithstanding the order of the trial Court that same be translated in English. The translation if any was not put in evidence at the trial Court. The use of the trial Court of Exhibit 1 respectfully is improper because he has thereby combined his role on adjudication with that of a translator who ordinary ought to have been called to testify in chief and cross-examined and if need be re-examined. If the Appellant left the document un-translated until he closed his case, the only course left to the Court is to discountenance it. By chanting the course it did, it abandoned it toga of impartiality and descended into the arena of the side of the party who produced the document that requires translation and did not translate it into the language of the Court, English.”
The inescapable consequence of the failure of the Appellant as Respondent to have the documents attached to its counter affidavit translated into the English language, which is the language of the Court is that the Court below had no options than to discountenance the said documents, which comprised the following Exhibits; Exhibit A (at page 58 of the records), Exhibit D1 (at page 54 of the records), Exhibit B (at page 54 of the records), Exhibit E (at page 58 of the records), Exhibit F (at page 57 of the records), Exhibits I & J (at pages 72 – 73 of the records), letter dated 3/10/2017 (at page 80 of the records) and the letter dated 9-10-2017 (at page 91 of the records).
It would be recalled that these pieces of documentary exhibits remained un-translated until they were adopted along with the written addresses of the Appellant. Little wonder therefore, the Court below did not think twice before discountenancing the un-translated documentary exhibits attached to the counter affidavit of the Appellants who were Respondents at the Court below. In agreement with learned Respondent’s Counsel herein, the said documents having been properly discountenanced by the Court below, the Court cannot rely on any oral evidence of the Appellants, which is intended to breadth life into the rejected un-translated documentary exhibits.
The settled position of the law is that evidence already rejected by the Court, be it documentary or oral cannot be later used in the course of trial. See the cases of EKPEYONG vs. ESSIET (1975) 3 SC 107; ARUBI vs. OFFSHORE OPERATORS (NIG) LTD (1978) 342 AT 345 and BABATOLA vs. ALADEJANA (2001) 6 SC 124. The situation of these documentary exhibits would also not have been changed by the injection of oral evidence by way of a remedial action. The reason for this categorical statement is that the paragraphs introducing the said Exhibits are rendered inoperative under the scheme of things as the primary evidence by which the assertions contained in them and by which their contents can be verified or substantiated had been deflated and rendered of no juridical substance. This necessarily takes the wind out of the sail of the arguments of the Appellants who have contended strenuously that there was no proper evaluation of and/or consideration of the documents annexed to the counter affidavit of the Appellants at the Court below.
In considering the arguments on the merit on the basis of the Constitutional rights and boundaries of the parties, it is important to perhaps, begin by taking on the contention of the Appellant raised in paragraph 4 at page 6 of their brief of arguments. Here the Appellants had contended by virtue of Section 11 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State 2003, that where a party is aggrieved with the decision of the 1st Appellant, before seeking a redress by way of a Court action he has to first by way of a pre-action notice, file a complaint on the issue to the office of the Governor of Zamfara State.
In putting it as mildly as possible, the stark reality of the situation under the 2009 Rules of the Fundamental Human Rights Enforcement procedure made under the hand and seal of the Hon. Chief Justice of the Federation, is that the need to engage in the giving of a pre-action notice as in other regular matters, completely has no place under these Rules. The Fundamental Rights Enforcement Procedure Rules has the same force as the Constitution and the Rules made therein, were designed to facilitate the swift hearing of such issues of infraction with absolute minimum delay. It is for this reason that the overriding objectives of the said Enforcement Rules are laid out in the preamble to the Rules. Preamble 3(g) to the Fundamental Rights (Enforcement Procedure) Rules, 2009 for instance prescribes that human rights suits shall be given priority in deserving cases and treated with emergency. This then gives the Court the enablement to fast track proceedings in rights Enforcement cases at every level.
Unfortunately for the Appellant in this case, under the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 there are no rules prescribing for the seeking of consent of any appropriate authority by way of a pre-action notice before the enforcement of same. In addition, Section 46(2) of the 1999 Constitution, as amended confers special jurisdiction on the High Court (which has been interpreted to mean the High Court of a State or the Federal High Court) to make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, to which the Applicant may be entitled. See the cases of FAJEMIROKUN vs. COMMERCIAL BANK OF NIGERIA LTD & ANOR (2009) 2-3 SC (PT. 1135) 58; OLUTOLA vs. UNIVERSITY OF ILORIN (2004) NSCQR 256 AT 279.
Apart from the foregoing, it was also contended at the Appellants’ paragraph 7 of their brief of arguments that by virtue of Section 10 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) law No. 14, Laws of Zamfara State, 2003 that it is the Shariah Court that has the original jurisdiction to determine the claims of the Respondent at the Court below and not the regular Court of law. In agreement with learned Respondent’s Counsel, the sui generis nature of matters commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009 simply means that they are governed by specific and special Rules of Procedure and that they are not subject, except where the context so admits, to the Rules of Procedure governing other civil matters. And that for this reason, they have nothing to do with the application of established principles of law to such a matter, therefore, the High Court Civil Procedure Rules and/or any Practice Directions made under the any High Court Civil Procedure Rules, or State law like the Section 11 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State 2003 are not applicable. See the case of KWAGE & ORS vs. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR-42508(CA), where this Court per OHO, JCA at Pp. 53-54, Paras. E-C stated thus:
“Perhaps, what the Appellants’ Counsel failed to realize is that the application presented to the Court below was one, which was meant for the enforcement of the Fundamental Rights of the Appellants and that Section 46 (2) of the 1999 Constitution, as Amended confers special jurisdiction on the Court in so doing to make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which the Applicant may be entitled. See the cases of FAJEMIROKUN vs. COMMERCIAL BANK OF NIGERIA LTD & ANOR (2009) 2-3 SC (PT. 1135) 58; OLUTOLA vs. UNIVERSITY OF ILORIN (2004) NSCQR 256 AT 279.”
See also the case of SKYE BANK vs. NJOKU & ORS (2016) LPELR-40447 where this Court per MBABA, JCA had this say on the subject:
“We have stated, several times, that an action founded on Fundamental Rights (Enforcement procedure) Rules is sui generis, and is not subject to the other rules of Court, except where expressly adopted, to fill a lacuna in the Fundamental Rights (Enforcement) Rules 2009, by the Chief Justice of Nigeria. See the case of Enukeme vs. Mazi (2014) LPELR – 23540 CA, where this Court said: “I must start by stating the obvious, that fundamental rights enforcement procedure is sui generis, being specially and specifically designed, with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement procedures) Rules of 2009, which actually came to correct some perceived wrongs and hardship, which the 1979 Rules (fashioned after the 1979 Constitution) caused to Applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications…”
As it has to do with the powers of the Appellants under Section 5 of the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State, 2003 to regulate Religious Activities in Zamfara State, this Court is in agreement with learned Counsel for the Respondents that such powers do not include the power to regulate the Wazifa, Hailala and Maulud, which are not in themselves Religious Bodies or Sects, but practices peculiar to the Respondent’s Dariqatu Tijaniyya Sect. Section 38(1) of the Constitution of Nigeria, 1999 as amended makes provision for the citizen’s ‘freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or private) to manifest and propagate his religion or belief in worship, teaching and observance’.
To therefore insist as learned Appellants’ Counsel has done in arguing this Appeal, that the Commission created under the Religious Preaching and Establishment of Jumaat Mosque and Idi Praying Ground Commission (Amendment) Law No. 14, Laws of Zamfara State, 2003 has powers under Section 5 of the Law to have the religious practices of the Wazifa, Hailala and Maulud regulated, is to pit the said Section 5 on a head-on collision with Section 38(1) of the Constitution of Nigeria, 1999 as amended, which guarantees the citizens’ rights to freedom of thought, conscience and religion.
It is important to note and maybe by way of emphasis that the right to freedom of religion is one of the fundamental rights enshrined in the Nigerian Bill of rights encapsulated in Chapter IV of the 1999 Constitution as amended. These are rights that are fundamental to the very existence of the human person regardless of race, sex, nationality, ethnicity, language, religion or any other status. Therefore, the right of the Respondents as adherents of the Dariqatu Tijaniyya Sect to practice the Wazifa, Hailala and Maulud, which are practices peculiar to them with the attendant consequences inheres to them and is inalienable and immutable to say the least. A fundamental right is more significant than the rights under other statutes or laws as it goes to the root of the day to day existence of the citizen and corporate living of the citizens: See ESSIEN vs. INYANG (2011) LPELR (4125) 1 at 24. The Courts are under a duty as provided by the Constitution to see that executive and administrative actions are in conformity with the fundamental rights of persons. See the case of OBAYIUWANA vs. MINISTER OF FCT (2009) LPELR (8202) 1 at 26.
The pertinent question to perhaps, address at this stage is whether the administrative actions of the Appellants who are insistent upon regulating the practices of the Respondent, which requires their observance of the Wazifa, Hailala and Maulud, is in any way in conformity with the provision of Section 38(1) of the Nigerian Constitution, 1999 as amended? The answer to this teaser can only be answered in the negative as it does not require rocket science to know this.
As it has to do with the Appellants’ claim to ownership of the 1st Central Mosque of Dogon-Kade, Kaura Namoda Local Government Area of Zamfara State, which is a general and public worship place for all Muslims, it is perhaps, to state here that the position on the subject by the Islamic religion generally is that the Mosque belongs to all devout Muslims while the Appellants hold over same is only supervisory in nature for the benefit of the entire Muslim Community. This Court is therefore in agreement with the Court below when it recognized the rights of the Respondent to the use of the said Mosque along with other Muslim adherents. This Court also agrees that the right of the Respondent in this regard is Fundamental and stands above the ordinary laws of the land. See the case of NURSING AND MIDWIFERY COUNCIL OF NIGERIA vs. ESTHER BOSE ADESINA (2016) LPELR-40610(CA).
Arising from the foregoing, this Appeal is moribund as it is completely lacking in merit and it is accordingly dismissed. Consequently, the judgment of the High Court of Justice Zamfara State sitting at Kaura Namoda in Suit No. ZMS/KN/M.449/2017 delivered on the 25th day of January, 2015 Coram: M. YUSHA’U, J., granting the claims of the Respondent is here affirmed. There are no orders as to costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, Oho JCA. I fully agree with the reasonings and conclusions made therein and I adopt them as mine to also dismiss this appeal. I abide by all the consequential orders and make no order for costs too.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother FREDERICK O. OHO JCA.
I am in entire agreement that the appeal totally lacks merit and therefore ought to be dismissed. I have nothing to add to a well- considered judgment. I also dismiss the appeal. I abide by the consequential order in the lead judgment. No order as to cost.
Appearances:
A. S. YARIMA ESQ. For Appellant(s)
IBRAHIM ABDULLAHI ESQ. For Respondent(s)
