Alhaji Idris Adamu & Ors V. Hajiya Jummai Bashiru & Ors (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

In a motion on notice, the applicants herein, prayed for:

“(a) An order of stay of proceedings in this case pending the determination of the applicants appeal to the Court of Appeal.

(b) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The application was brought pursuant to Order 3 rules 1 and 3 of the Court of Appeal Rules. It was supported by a nine paragraph affidavit. A further and better affidavit of six paragraphs was also filed by the applicants. The respondents on their part filed a six paragraph counter-affidavit. Some annextures were also exhibited.

In moving the motion, learned counsel for the applicants relied on all the paragraphs of the affidavit in support, the further and better affidavit and the annextures exhibited therein. He made copious submission that the main grouse of the applicants was that at the trial Area Court Nassarawa Gwong, Jos, where the suit was initiated, the trial court made distribution of the estate left by one Alhaji Garba Adama, the deceased. The parties before the trial Area Court, he contended further, indicated their agreement to the distribution made by the trial court. On the appeal before the lower court, learned counsel submitted that there were no appellants before the lower court as the case was reported to the lower court by inspectorate of the Area Court Division and as the lower court, by its proceeding of 25/6/96 had terminated the appeal before it. There was therefore no competent appeal. Learned counsel filed a motion on 23/10/96 so that the lower court could strike out the appeal but his application was refused on the 9/12/96.

Learned counsel submitted further that he filed another motion for stay of proceeding but was equally refused on 29/1/97.

It was the contention of learned counsel for the applicants that they filed their appeal in time and by virtue of the provision of section 223(1) of the 1979 Constitution; their appeal was competent as the section did not differentiate between an interlocutory appeal or an appeal on a final decision of a court. Learned counsel for the applicants finally adumbrated on the general principles which govern the grant of an application for a stay of proceedings. It was his view also that there is no distinction between the principles governing a stay of execution or proceeding under the Common Law and those under Islamic Law. He urged this court to grant the application.

Learned counsel for the respondents in his submission relied on the paragraphs of the counter-affidavit. In opposing the application, learned counsel formulated two issues:

(a) Whether there is a valid appeal filed at the Sharia Court of Appeal or Court of Appeal.

(b) If answer to (a) above is in the affirmative whether the applicants have satisfied the laid down conditions for the grant of stay of proceeding under the Sharia.

Learned counsel argued that by the combined effect of section 223(1) of the 1979 Constitution and Section 25 (2) of the Court of Appeal Act, 1976 (as amended) an appellant shall enter an appeal to the Court of Appeal on final decisions within 3 months whereas same shall be entered within 14 days if interlocutory from the date of delivery. The applicants, he contended, had a duty to explain why they were unable to appeal within the stipulated period. It was his view that as the ruling sought to be appealed against was delivered on 9/12/96 and appeal entered on 20/1/97, There was a delay of 3 days. Thus, as appellants did not seek for leave and enlargement of time to appeal, the Notice of appeal filed was invalid. There was therefore no competent and subsisting appeal before this court.

On the second issue, learned counsel for the respondents tried to draw distinctions between the principles for Stay under Islamic Law and the Common Law. He argued that the applicants have failed to show in their affidavits where the decision of the lower court has gone contrary to any NASS (text). It was argued for the respondents that what was before the lower court was an issue of distribution of estate of a deceased person. Learned counsel argued further that what delayed the matter at the lower court was that the applicants admitted that they had sold most of the properties left by the deceased person and that they settled his debts. Applicants promised to render an account of the estate of the deceased before the lower court but failed to fulfill their promise. He submitted that the issue of indebtedness of the deceased was paramount and as a first charge on the estate of the deceased that had to be determined before any distribution of the whole estate could be embarked upon. It will not therefore, be in the interest of Sharia to stay the proceeding before the lower court. As the ruling of the lower court was declaratory, it cannot be stayed. Learned counsel for the respondents cited some authorities from Siraj al alik Sharh Ashal Al-.masaliki Vol. 1, by Ibn Husnaini; Al-Mawarith fi al-Shariat al Islamiyau ‘Ala Dhau’ i Al-Kitabi Wai Sunnati, by Al Sabuni, A. Al-Mawarith fi al Shariati Al Islamiyati; 4th edition by Makhluf, M: figh Al-Sunnah, Vol. 3 by Sabiq, S. He finally urged the court to refuse and dismiss the application.

In treating this application I think it is very necessary to determine some preliminary but important issues, that is to say; whether there is a subsisting appeal before the lower court as well as before this court, before an order for stay of proceeding can be granted or refused. Let me start with the appeal before the lower court and I will start with the ruling of 9/12/96. In that ruling, the learned kadis of the lower court stated:-