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Alhaji Saidu Abdulsalam & Anor V. Alhaji Abdulraheem Salawu (2002) LLJR-SC

Alhaji Saidu Abdulsalam & Anor V. Alhaji Abdulraheem Salawu (2002)

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The present respondent was the plaintiff at the High Court of Kogi State, sitting at Okene. He brought the suit against the appellant and Alhaji Sani Omolori, the Ohinoyi of Igbira, jointly. He prayed for:

“1. declaration that he (plaintiff) was the person properly appointed as the Chief Imam of Okengwe central mosque.

  1. an injunction restraining the second defendant (the Ohinoyi) from turbanning the first defendant as Chief Imam of Okengwe.

3 an injunction restraining the first defendant from leading the Jumat prayers at Okengwe central mosque and of performing any function attached to the office of Chief Imam of Okengwe central mosque.”

At the end of hearing at the trial court, Leslie, J., gave judgment for the plaintiff (now respondent) and granted all his prayers. The office of the Chief Imam of the central mosque dates back to about forty years at Okengwe, a community comprising two main clans of Igbioras in Okengwe and Obehira. It was the consensus of the community that Obehira would produce the first Chief Imam while his deputy (Naibi) would come from Okengwe so that there would be rotation of these two mosque offices. The first Chief Imam Alhaji Abdulsalam died in 1992, he came from Obehira; his Naibi, Alhaji Yusuf Ogwuo came from Okengwe. But Alhaji Yusuf Ogwuo predeceased Alhaji Abdusalam, thus rendering vacant the office of Naibi and this was filled by Alhaji Saidu Abdulsalam (first defendant) also from Okengwe. However, due to some misconduct abominable to Islamic tenets first defendant was relieved of the post of Naibi. The plaintiff was then appointed Naibi to replace the first defendant.

The Chief Imam, Alhaji Abdulsalam died on 7th June, 1992 and it was the turn of Okengwe to produce a new Chief Imam. The plaintiff at that time was the substantive or incumbent Naibi and at Okengwe community, which was to produce the next Chief Imam, was appointed after due consultation. But by a turn of events the first defendant, Alhaji Saidu Abdulsalam started parading himself as the new Chief Imam. When the first Chief Imam, Alhaji Abdulsalam was terminally ill, the plaintiff as the Naibi, acted for him and led Friday congregational prayers up to when the Chief Imam died on 7th June, 1992. At the meeting of the two communities, where plaintiff was appointed substantive Chief Imam, the name of first defendant was rejected, no doubt, due to his previous unislamic conduct that formed the basis of his previous removal as Naibi. However, on 13th of May, 1993, at the palace, the second defendant, a traditional ruler, also regarded as final authority to sanction appointment of Chief Imam in any part of his domain, conducted an election without presence of any Naibi of the various mosques in Okengwe and Obehira, where first defendant was purportedly elected. This led to the suit that has found its way to this Court of Appeal.

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As I said earlier, trial High Court Judge found for the plaintiff on his three heads of claim. Court of Appeal upheld the decision of the trial court. The grounds of appeal advert to either error in law or misdirection, similarly the additional grounds of appeal filed with leave of court. The issues canvassed by the parties in their briefs revolve around the grounds of appeal. It is pertinent to set out appellants’ issues before the court on appeal, to wit:-

“1. Whether having regard to the state of pleadings and the weight of evidence proffered before the court, plaintiff has proved his case on balance of probabilities (Grounds 1,3,5,6).

  1. Whether the trial Judge adverted his mind properly to the pleadings and the case made out on those pleadings before framing his issues nos. (b) and (c) for determination and deciding same against defendant (2) and (4).
  2. Whether plaintiff has proved any age old agreement that where Chief Imam comes from or is to come from one of the two moslem communities (Obehira and Okengwe) the choice is or should be the responsibility of that community, (3).”

The respondent in his brief raised a preliminary objection which the court intimated would be ruled upon in this judgment. The objection relates to ground 1 of grounds of appeal concerning the position of pleadings in the parties dispute. According to respondent, learned Justices of the lower court erred when they held that the first appellant never denied paragraph 9 of the respondent’s averment that he was once removed as “Naibi” of Okengwe Central Mosque for unIslamic conduct. If it is true that a paragraph in the pleadings is untraversed and not denied, the consequence that the allegation in the pleading in that paragraph is admitted is law not fact. Pleadings contain the facts a person relies for his case and every allegation in it must be traversed by admitting or denying it otherwise the legal consequence is clear. The ground 1 is a clear ground of law and not of mixed law and fact. The objection is clearly misconceived and it is hereby dismissed.

The plaintiff/respondent adopted issue 3 for his own argument in respondent’s brief. After a thorough appraisal of the evidence before the trial court based on the pleadings, Court of Appeal found no reasons to disturb its decision and dismissed the entire appeal. Thus the further appeal to Supreme Court. The Court of Appeal found the election conducted at the palace of the second defendant was not fair in that only Obehira people participated and that the communities had earlier endorsed the appointment of the plaintiff as the Chief Imam. It also upheld trial court’s decision that there was standing agreement between the communities of Obehira and Okengwe on the rotational arrangement for the appointment of Chief Imam and his Naibi for the Central Mosque of the communities. It must however be stated that Ohinoyi (2nd defendant) never filed any defence and brief in the journey of the case up to this court. In so far as he was made a party, it was held by Court of Appeal that he admitted all the claim. I am not so sure of this, it seems he was a passive participant, a nominal party, awaiting the outcome of the case between the plaintiff and first defendant, and to abide by it. He however died during the pendency of the appeal at the Court of Appeal.

Before us one original ground of appeal was filed; and with leave, an additional ground based on matter of jurisdiction, not raised in the court below, was granted. The original ground alluded to claim that Court of Appeal erred when it held that pleadings in the trial court never covered the evidence adduced before it. This is the ground I ruled upon on preliminary objection earlier on in this judgment. This claim was clearly adverted to by Court of Appeal and no evidence was pointed at to indicate unpleaded matter was admitted in evidence. It was clear before the court below that all that the respondent pleaded in the court of trial formed the very basis of the decision of that court and that the appellant was not correct in his assertions. The new issue raised in the additional ground of appeal is that the trial court had no jurisdiction to try the case, being one on purely islamic law, so that the trial before that court and consequent appeals, are null and void due to this absence of jurisdiction.

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Dr. S. Mosugu, counsel for the appellant, points out that the parties were muslims, their claims related to mosque and its leadership and it follows that the matter be governed by moslem law. Section 242 of the constitution of the Federal Republic of Nigeria, 1979, adverted to by the appellant, as conferring exclusive jurisdiction in Sharia Court of Appeal on matters of islamic personal law, does not do anything more than it says. “moslem personal law” is clear as explained in all Sharia Court of Appeal Laws of some states of the Federation and as enumerated in the constitution of 1979 in section 242 thereof, and also in section 262 of the constitution of 1999. The matters specified by the aforementioned constitutions as within the jurisdiction of Sharia Court of Appeal are as follows:-

“(1) The Sharia Court of Appeal of a state shall, in addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of islamic personal law.

(2) For the purposes of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide

(a) any question of islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;

(b) where all the parties to the proceedings are muslims, any question of islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;

(c) any question of islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim;

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(d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm; or

(e) where all the parties to the proceedings, being muslims, have requested the court that hears the case in the first instance to determine that case in accordance with islamic personal law, any other question.”

Matter of jurisdiction is so important that if raised in good time it must be addressed first by the court to avert possibility of nullity in trial. Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1. Sometimes, the court discovers possibility of lack of jurisdiction, in which case it must determine that issue first before proceeding further in the trial. Agbanelo v. U.B.N. (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534). Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116. Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722. In instance like that court invites addresses from parties on jurisdiction. Jurisdiction as an issue can be raised any time during the trial of a suit up to finality, but in an appellate court where it is a new issue proper application must be made to raise it as a ground of appeal. (Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159; Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76). Where however the constitution clearly confers jurisdiction, as in the case now at hand, the power of court cannot be vitiated merely because the matter concerns parties who are moslems or the case is of moslem law in so far as the matter is not of islamic personal law. The islamic personal law (must be of maliki school) governing matters enumerated in s. 262 of the constitution of 1999 and s. 242 of 1979 constitution. Therefore what is being canvassed for the appellant is not covered by islamic personal law. Whereas, the constitutions are clear in s. 236(1) of 1979 constitution and section 251 of constitution of 1999 which re-emphasis this position as to jurisdiction of the High Court.

The net result is that this appeal has no merit and it is hereby dismissed with N10,000.00 costs to the respondent.


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