Sammanin Fatihu Galadanchi V. Abdulmalik & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The record before this Court portrays that the parties agreed to enter into a business transaction wherein the Appellant would advance the sum of N42,632,755.00 (Forty Two Million, Six Hundred and Thirty Two Thousand, Seven Hundred and Fifty-Five Naira only) as capital to be invested in the business. It was further agreed that the expected profit of the business shall be shared by apportioning (one quarter) to the Appellant and ‘be (three quarters) to the Defendants.

The business transaction was executed as planned and profit was realized as anticipated to the tune of N30,357,645.00. It was averred in the Appellant’s pleading that his share of ‘bc portion then stood at N7,589,911.00, which not paid to him as agreed. Being vexed by that, the Appellant then proceeded to the Upper Sharia Court, Shahuchi on 1/7/2011 to lodge his claim. As a result, the Respondents were summoned by the Upper Sharia Court.

Hearing was however, conducted, but, before the conclusion, the parties had on their own volition on 11/7/2011 reached an out of Court settlement which the Appellant’s a Counsel informed the Upper Sharia Court about on 22/7/2011. Upon the information, the Upper Sharia Court enquired from the parties and indeed confirmed that they reached a settlement even though the 2nd Respondent laboured fruitlessly to deny the same.

Following the same, the Upper Sharia Court after hearing the parties delivered its judgment on 29/8/2011 describing the parties’ venture as a partnership and then gave validity to the settlement by holding thus:

“the moment settlement has been reached or made it is forbidden under the Islamic law, to withdraw it even if other parties agreed to be withdrawn from the settlement, that will not be allowed under the Islamic law. See Provision of Tuhfa: – The reason why it is like that is because there will be an endless litigation that is why it is mandatory upon the Court to uphold the settlement since the parties involved were matured and sane.

It is on the of the provision quoted above, I Mohd Abubakar Bello Upper Sharia Court Judge Shahuci (sic) held that the settlement made between the parties are hereby upheld by the court in order to get peace between them. Anybody who is not satisfy (sic) with the judgment can appeal to S. C. A. in 30 days from today 29/8/2011.”

The 1st Respondent was dissatisfied with the judgment that he appealed against it to the Appellate Division of the lower Court, i.e. High Court of Kano State which later heard the appeal and then allowed it and set aside the said judgment of the Upper Sharia Court.

It is interesting to note that the Kano State High Court in considering the appeal took cognizance of certain principles of Islamic law. The lower Court in its appellate jurisdiction allowed the appeal, set aside the judgment of the Upper Sharia Court and remitted the case for retrial by Upper Sharia Court, Yan’awaki. See pages 156-160 of the record.

It is against this background that the Appellant, the Plaintiff in the suit, filed the present appeal to this Court which he based on six grounds of appeal. The parties filed their respective Briefs of Argument. The Appellant phrased only two issues for the determination of this Court in the following manner:

“1. Whether the lower Court was competent to hear and determine appeal from a decision based purely on the principle of Islamic Law emanating from the trial Court without being assisted by an assessor learned in Islamic law.

2. Whether the lower was right by refusing to consider and make pronouncement on the main issue of Sulhu(Reconciliation) raised and admitted by both parties and based its decision on the two incompetent grounds of appeal it earlier struck out relating to the evidence of PW1 and PW11.”

The Respondents, however, filed a Notice of Preliminary Objection on the ground that:

“1. Particulars (a), (b) and (c) did not correlate and/or have bearing with ground No. 1 of the Notice of Appeal dated the 9th June, 2010.

2. Issue No. 2 as contained in the Appellant’s Brief is not distilled from any of the 3 grounds of appeal contained in the Notice of Appeal dated the 9th June, 2010.
3. Ground number one is not a complaint that emanated from the judgment appealed against.
4. Particulars (a) did not correlate and/or has no bearing with ground No. 2.
5. No issue for determination has been distilled from ground No. 3 as such (sic) same is deemed abandoned.”

Further, the Respondents presented two issues for the consideration of this Court. They are;