Wakili Manu V. Abdulkadir Muhammad (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A. 

This is an appeal against the decision of the Bauchi State Shari’a Court of Appeal holden at Azare (hereinafter referred to as the SCA) whereat the present appellant appealed against the decision of the Upper Area Court Azare (hereinafter referred to as the UAC) which gave judgment in favour of the respondent/plaintiff in respect of the five disputed farms.

The facts of this case briefly put were as follows:

At the Upper Area Court where the present respondent as plaintiff sued the appellant here as the defendant claiming on behalf of his brothers and sisters the five farms inherited from their deceased father left under the control of the defendant/appellant who denied the claim. At the trial seven witnesses testified for the plaintiff/respondent out of which three of them, viz P.W.I, P.W. VI and P.W. VII gave direct evidence that they know some of the farms and knew the grand father of the parties and that the farms were not shared in inheritance. On his part four witnesses testified for the defendant/appellant out of which the Upper Area Court Judge disqualified three key witnesses (vide page 10 of the Records) on the ground that they were related to the defendant/appellant without hearing the testimonies of the witnesses. Out of the four witnesses who testified for the defendant/appellant, three of them (P.Ws I, II, IV) gave according to appellant’s counsel evidence that the appellant’s father originally cleared 3 of the five farms which therefore belong to him not by inheritance through his father. The Upper Area Court after a review of the evidence entered judgment for the plaintiff/respondent and ordered that the farmlands be shared among the heirs – Manu and his brother and later Abdulkadir to take their shares and divide same among themselves.

Dissatisfied with this judgment, the defendant/appellant appealed to the SCA which after hearing the parties and looking through the records affirmed the decision of the Upper Area Court. Again dissatisfied with this judgment of the SCA the defendant/appellant (hereinafter referred to as the appellant appealed to this court on various grounds which included lack of proper evaluation as well as the arguments. Furthermore the appellant complained that his application for the calling of his witnesses was improperly disqualified by the Upper Area Court. The judgment of the SCA which was delivered by only two Kadis did not also state the basis in Islamic Law upon which it was founded. All these formed the grounds of this appeal. From these grounds of appeal, the appellant has formulated the following 5 issues with which the respondent agreed:

These are:

1. Whether the two Kadis who determined the appeal at the court below were competent by law and therefore duly constituted the court for the determination of the appeal.
2. Whether the court below properly evaluated the evidence before the Upper Area Court before affirming the decision of the latter.
3. Whether the court below has not acted contrary to Islamic Law when it delivered judgment without showing its basis in law.
4. Whether the appellant was given fair hearing when his application to call and hear his witness as well as grounds and submissions were totally ignored by both the court below and the Upper Area Court
5. Whether the judgment is not against the weight of Evidence.

The appellant’s counsel filed the appellant’s brief of argument on 12/3/97. The respondent being unrepresented did not file the respondent’s brief. Today, 1/7/97 when this appeal came up for hearing before us, learned counsel to the appellant A.S. Hassan Esq. adopted and relied on the appellant’s brief of argument filed herein on 12/3/97and urged the court to allow the appeal. By way of reply, the respondent who was unrepresented and who appeared in person, adopted his case as presented at the Upper Area Court Azare and the Bauchi State Sharia Court of Appeal holden at Azare as contained in the record of proceedings. The respondent who said he had nothing to add urged the court to dismiss the appeal.

I have considered the submission of learned counsel to the appellant and the case of the respondent in person as given by him. It would appear to me that the argument of both parties boils down to 2 basic issues; viz:

1. Whether the two Kadis of the Sharia Court of Appeal who determined the appeal at the SCA were competent by law and therefore duly constituted the court for the determination of the appeal.
2. Whether the decision of the SCA accord with laid down principles of Islamic Law.

Since jurisdiction is the basis of adjudication, I will first of all deal with the issue of jurisdiction contained in issue No 1. It is the outcome of this issue No 1 that will determine whether or not other sub issues in Issues No 2 will be considered in this regard.

Learned counsel to the appellant after adopting and relying on the appellant’s brief submitted under the issue of jurisdiction at paragraph 4.0 on page 2 of the brief that the learned Kadis only two of them that presided over the appeal at the court below did so without jurisdiction regard being had to the provisions of 233E of the Constitution Suspension and Modification Decree No 107 of 1993 which mandatorily made three Kadis/judges for the due constitution of the court below to hear an appeal, Accordingly, the court below we submit and urge your lordships so to hold acted without jurisdiction. Since the respondent merely adopted his case at the two lower courts, he had not proffered any reply to this legal argument, In the circumstance I have considered the submission of the appellant on this novel issue vis-a-vis the records and the prevailing law. In my view, in order to resolve this poser raised by learned counsel to the appellant, it will be necessary to examine the amendment which Decree 107 of 1993 had made to that section in the 1979 Constitution. Whereas under the 1979 Constitution two Kadis are duly constituted for the sitting of the Sharia Court of Appeal of any State in the Federation under S. 243 of the 1979 Constitution, However, Decree No 107 of 1993 otherwise known as Constitution Suspension and Modification Decree amended Section 243 of the 1979 Constitution on the Constitution of the Sharia Court of Appeal in the following terms:

“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or an Act of the National Assembly or a Decree, the Sharia Court of Appeal shall be duly Constituted if it consists of at least three Kadis of that court”

From the foregoing it is clear that from 17/11/93 when this amendment via Decree 107 of 1993 took effect and to date, where two learned Kadis preside over an appeal at the Sharia Court of Appeal of any state of the Federation such learned Kadis merely do so without jurisdiction pursuant to the provision of section 233E of the Constitution Suspension and Modification Decree No. 107 which mandatorily made three Kadis for the due Constitution of the court to hear on appeal and I so hold.

The question to ask is whether the instant appeal is caught by this amendment.

To answer this poser, it is necessary to travel into the sphere of what is known in legal parlance as ‘applicable law.’ This legal phenomenon has received judicial definition from the appellate courts in this country to the effect that the applicable law for the determination of an action before the court is the substantive law existing at the time of the action and that changes of law will not affect the accrued rights and obligations unless the change is made retrospective. Utih v. Chief Umurhurhu Onoyivwe & 5 Ors. (1991) 1 SCNJ 25; (1991) 1 NWLR (Pt. 166) 166 See also Victor J. Rossek & Ors v. African Continental Bank Ltd & Ors. (1993) 10 SCNJ 20; (1993) 8 NWLR (Pt.312) 382. From the foregoing authorities, it is clear that the applicable law is that law existing as at 14/9/93 when the appeal was heard and determined and an amendment to that law which in this case is that introduced by Decree No. 107 of 1993 which came into effect on 17/11/93 – 62 days thereafter cannot have effect on the composition of the court presided over by 2 Kadis as contained in S. 2 s.43 of the 1979 Constitution before the amendment and I so hold. Issue No. 1 is accordingly resolved in favour of the respondent. Having resolved this jurisdiction issue, I shall now deal with the second basic issue.