Hon. Judge, Upper Sharia Court Tudun Wada, Kaduna & Ors V. Atiyu J.d. Umar & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU, J.C.A., CFR (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice Tanimu Zailani, judge of the High Court of Justice Kaduna State in exercising the Courts appellate jurisdiction in Suit No. KDH/KAD/175/2009 wherein the learned trial judge entered judgment against the appellants in favour of the Respondents by removing the proceedings of the Upper Sharia Court, Tudun Wada Kaduna to the High Court Kaduna and quashing the same in his judgment.

The learned trial judge held that the Upper Sharia Court Judge Mustapha Umar acted without jurisdiction when he shared the estate of the appellants and respondents late father wherein the Trial High Court Judge himself had no jurisdiction to entertain the certiorari application brought by the respondents herein and thereby leading to a miscarriage of justice.

The parties in this appeal filed briefs of arguments with the appellants brief filed and deemed on 23/3/2011. The respondents brief on the other hand was filed on 16/11/2012. In their brief, the appellants formulated a single lone issue for the determination of the appeal as follows: –

“Whether the Respondents motion/application for a judicial review dated on 4th March, 2009 at the lower court which was out of time was competent without an order of the Court regularising the same.”

In arguing the above issue, the appellants brief stated that in order to appreciate the gravamen of the issue, it is important to refer to Order 37 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules 2007 which states that:

“An application for judicial review shall be brought within three (3) months of the date of the occurrence of the subject of the application.”

It is submitted that a Court is competent with regard to a suit or other proceedings when it has power to hear or determine it or exercise any judicial power therein. See the case of Engr. Goodnews Agbi & 1 or. v. Chief Audu Ogbe, James Ibori & 3 ors. (2004) All FWLR (pt.202) 1799 at 1845.

It is submitted that based on the above authority it is that for a Court to be competent the jurisdiction to determine an application for a judicial review under Order 37 Rule 4 of Kaduna State (Civil Procedure) Rules 2007 such an application must be brought within three (3) months of the occurrence of the event the application is seeking to review. It is pertinent to state here that the judgment of the Upper Sharia Court Tudun Wada, Kaduna which the respondent sought to review by way of certiorari was delivered on 4th March 2008 while the application was filed on 4th March 2009 (one year after the Sharia Court judgment) without leave or order of the lower Court for extension of time to file the application.

It is the further submission of the appellants brief that what the lower court did was to put something on nothing which can never stand. In essence, the failure of the respondents to seek leave of the lower court for extension of time after 3 months to initiate their application for judicial review (certiorari) amounted to a non-compliance with the due process of law and non fulfilment of condition precedent for the Court to exercise jurisdiction thereby rendering the proceedings of the lower Court a nullity. Reference is made to the cases of Chief Mike Okpere & 1 or. v. Alhaji Garba M. Rugoji & 1 or. (2004) FWLR (pt.194) 463 at p.475 – 476 (Per Muhammad JCA as he then was of this Court) and see also Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 581.

The brief continues that it is trite that a party seeking the discretionary powers of the Court must initiate his case or application within the provision of the rules of Court which he purports to make his application. It is therefore submitted in the appellants brief that the failure of the respondents to bring their application for judicial review in accordance with the provision of Order 37 Rule 4 (supra) renders the application incompetent, and also deprive the lower Court of competent jurisdiction to entertain the same as the respondents were already out of time as provided by the Rules. Reference is made to the case of Okpere v. Rugoji (supra).

With regard to ground two (2) of this appeal, it is submitted that the lower Court misconstrued itself when it held that the provision of Order 37 Rule 4 is not mandatory. It is submitted that any application for judicial review must be brought within 3 months of the date of the occurrence of the event which in this case was a request for judicial review of the judgment of the Upper Sharia Court delivered on 4th March 2008.

In the respondents brief on the only lone issue, it is submitted that the respondent’s application for judicial review at the lower court was competent as it was done in compliance with the procedure laid down by the rules of Court. Under Order 37 Rule 3(1) of the Rules (Supra) it is provided that:

“No application for judicial review shall be made unless leave of the Court has been obtained in accordance with this rule.”