Alhaji Ibrahim Ahmad Goronyo V. Alhaji Isah Mai Alewa Goronyo (1999)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
This appeal emanated from the decision of the Sokoto State Sharia Court of Appeal (SCA) sitting at Sokoto on appeal No. SCA/WR/128/93, dated 7th December, 1994. The earlier decision of the Wurno Upper Area Court (UAC) in suit No. CV/FI/20/92 was the subject matter of the appeal before the SCA. The plaintiff was claiming before the UAC that when their father died about 40 years ago, his estate, which composed of 2 houses, four farms and some books, was not distributed among the heirs and was being withheld by the defendant. The defendant admitted knowing that their father died and left a house, four farms and some books. He denied knowledge of anything over and above that. Evidence was taken by the UAC and at the end, the trial Judge found that the only estate left by the deceased composed of a house and four farms which were subsequently distributed to the heirs.
Dissatisfied, the plaintiff, now appellant, appealed to the SCA. After taking more explanations from the parties, the SCA affirmed the UAC’s decision.
Dissatisfied further, the appellant appealed to this Court on four grounds reproduced below:-
“1. The Upper Area Court Judge at Wurno wrongly administered Oath to the respondent herein without considering possession.
- The Sharia Court of Appeal judgment is equally unreasonable because it only uphold (sic) the lower court decision without regard to Islamic Law governing inheritance.
- The quorum of Sharia Court Kadis is constitutionally 3 but only two Kadis sat and decided my case.
- Further grounds shall later be filed on receipt of records of proceedings.”
On the 18th day of November, 1998 when the appeal came up for hearing, the appellant adopted and relied on the submissions he made at the UAC and the SCA of Sokoto State. He had nothing more to add. He urged the court to allow the appeal. The respondent on the other hand adopted and relied on his submissions made at the UAC and the SCA of Sokoto State. He urged us to dismiss the appeal.
The parties remained undefended from the trial stage to the present stage.
From the grounds of appeal, two issues are distilled for consideration:-
- Whether the decision of the Sharia Court of Appeal, Sokoto is not a nullity as there was no proper quorum of the Kadis to determine the appeal.
- Whether Oath was properly administered on the defendant/counter-claimant.
Issue No. 1 touches on jurisdiction of the lower court which is fundamental and must be resolved at once.
It is a basic requirement of the law that before a court of law determines a claim, it must ensure that it has jurisdiction to entertain it. See Abbas & anor. C.O.P. Kano State & anor (1998) 12 NWLR (Pt. 577) 308. In the 1979 Constitution, the requisite quorum for a Sharia Court of Appeal to entertain an appeal was two Kadis. Section 243 of the Constitution of the Federal Republic of Nigeria. 1979, stipulates:-
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Sharia Court of Appeal of a State shall be duly constituted if it consists of at least 2 Kadis of that Court.”
An amendment to this section was introduced by Decree 107 Constitution (Suspension and Modification) Decree 1993 which amended the above section of the Constitution by substituting the word ‘two’ by the word ‘three’. See the second Schedule of the Decree. This, therefore, has changed the quorum of the Sharia Court of Appeal of a State to at least 3 Kadis. The effective commencement date of this Decree was the 17th day of November, 1993.
The appeal was heard and determined on the 7th day of December, 1994 by a quorum of 2 Kadis. This certainly was in clear contravention to the provision of the 1979 Constitution as amended. The lower court thus lacked jurisdiction to entertain the appeal. It has been repeatedly held by the Supreme Court and this Court that any proceeding however well conducted, if conducted without jurisdiction is a nullity. See Barclays Bank v. CBN (1976) 6 SC 175: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117)517; Abbas v. C.O.P. Kano State (supra).
For the above reasons, the decision of the lower court is a nullity which must be, and is hereby set aside. The appeal therefore succeeds and is hereby allowed, on the first issue alone. It will certainly serve no purpose to treat the remaining issue. Accordingly, the appeal is remitted hereby, to the honourable Grand Kadi of Sokoto State Sharia Court of Appeal for a fresh hearing by another duly constituted panel of the court apart from the earlier panel that entertained the appeal. I award N1,500.00 costs to the appellant.
Other Citations: (1999)LCN/0514(CA)