Mustapha Alkali & Anor V. Ali Alkali (2001)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This appeal once more raises the fundamental issue about the crucial importance of jurisdiction in our adversary system of adjudication. It is an appeal against the judgment of the Yobe State Sharia Court of Appeal dated 27th January, 1994 in which that court, after holding that it had jurisdiction to entertain the appeal, reversed the decision of the Upper Area Court, Damaturu of 13/4/93 and confirmed the transaction between the appellants and the respondent wherein the appellants as vendors sold a house belonging to the 2nd appellant to the said respondent. Aggrieved by the decision, the appellants, on 16/2/94 filed a notice of appeal which contained one ground of appeal questioning the aspect of the judgment of the Sharia Court of Appeal wherein the court held that it had jurisdiction and competence to hear and determine the appeal brought before it. I should perhaps reproduce the ground of appeal. It is couched in the following terms:

‘The Sharia Court of Appeal, Yobe State erred in law in assuming jurisdiction over a land matter and entertaining appeal thereon.

PARTICULARS OF ERROR

(a) By section 242(2) of the Nigerian Constitution 1979 the Sharia Court of Appeal jurisdiction (sic) is limited to issue of Islamic law enumerated there on and has no jurisdiction on land matters. More so Decree 50 of 1991 extending jurisdiction of Sharia Court of Appeal to any dispute where the parties are Muslims have been abrogated by Decree 107 of 1993.”

In compliance with the rules of this court, the appellants, on 28/6/96 filed a brief of argument. This was sequel to the grant of an extension of time by this court upon a motion on notice filed and argued in that respect on 24/6/98. In the said brief, and arising from the lone ground of appeal, the appellants, by their counsel, identified one issue as arising for determination. The issue is here under reproduced, viz:

“Whether the Sharia Court of Damaturu (sic) had jurisdiction to entertain the appeal before it.”

The respondent on the other hand, filed no brief of argument inspite of the service on him of the appellants’ brief since the year 1996. However, we felt that it was in the interest of justice to bend over backwards to accommodate the respondent during the oral hearing of this appeal yesterday moreso that he was not represented by counsel. We did just that. It is worthwhile to recapitulate the salient facts of the circumstances which led to the filing of the suit by the plaintiff before the trial Upper Area Court, Damaturu which led to the lodging of appeal to the Sharia Court of Appeal, Yobe and ultimately to this court. Sometimes in June, 1992 the 2nd appellant was desirous of selling his house in order to solve some problems which he had. He contacted the 1st appellant who was his brother together with whom they advertised for the sale of the house. The respondent showed interest in the house. Negotiations therefore commenced and the price was agreed at N29,500.00, part-payment of N16,000.00 was then made by the respondent. As full payment was not achieved it was agreed among the parties, after an intervention by the elders, that the balance of the purchase price would be paid within 30 days from the date of the first payment. However, seven months later there was still a balance outstanding.

In the intervening period, the 2nd appellant, finding it impossible to wait for the payment of the balance before solving his pressing problems which in the first place compelled him to sell the house, sold his vehicle and used the proceeds to make good his situation.

When eventually the respondent brought the balance of the purchase price seven months after the sale, the 2nd appellant informed him that he had long repudiated the agreement on the ground that time, which was of the essence of the contract, was breached by him.

Consequent upon the above, the respondent filed an action before the Upper Area Court, Damaturu. His claim can better be appreciated if presented in the language he himself employed. At page 5 of the record of appeal, he is recorded to have claimed as follows:-

“I, Ali Alkali, I am suing them because I bought their house after paying, they later came and postponed (sic) selling the house to me. For that I am suing them so that the court would confirm the purchase of the house to me.

The learned trial Judge inquired from the appellants about their reaction to the claim. It became obvious from their response that issue was joined on the time of payment over which the appellants depended to repudiate the sale. He therefore called on the parties to adduce evidence. The respondent called six witnesses while the appellants called none. Based on the above, judgment was subsequently delivered where in the sale of the house by the appellants to the respondent was set aside on the ground the learned trial Judge adjudge as follows “since the money was not paid within the promised (sic) this transaction is not valied (sic) (valid).” The trial court ordered the appellants to return to the respondent the moneys that the latter advanced to them and the 2nd appellant to resume possession of the house.

Dissatisfied with the above decision, the respondent appealed to the Sharia Court of Appeal, Yobe. Before that court arguments of learned counsel were taken. On the part of the appellants their counsel Mohammed Gambo Gujba, argued so forcefully and plausibly that the Sharia Court of Appeal lacked jurisdiction to entertain the appeal since the subject matter of the suit before the trial Upper Area Court was not one of the matters indicated under section 242(2) of the 1979 Constitution in respect of which the court was vested with jurisdiction. The Sharia Court of Appeal, in its judgment overruled learned counsel for the appellants and found itself to be clothed with jurisdiction. Accordingly, it allowed the respondents appeal, reversed the decision of the trial Upper Area Court and confirmed the transaction leading to the sale of the house valid and subsisting. In the event, it ordered the appellants to demand from the respondent the balance of the purchase price. The appellants were utterly dissatisfied with the judgment, hence they filed this appeal.