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.
Now let me consider the lone issue for determination. Mr. Liman of counsel for the appellants expatiated on the argument contained in the appellants brief as prepared by Mr. M.G. Gujba. The pith and substance of learned counsel’s submission is that decisions relating to land transaction simpliciter not involving questions of Islamic personal law are not matters appealable to the Sharia Court of Appeal. Learned counsel referred to section 54 of the Area Courts Edict, 1968 and section 11 of the Sharia Court of Appeal Law, Cap. 122 of the Laws of Northern Nigeria, 1963 and argued that they are similar and are in turn same with section 242(2) of the Constitutions of the Federal Republic of Nigeria, 1979 (as variously amended). He submitted that in both legislations as well as the Constitution appeals only lie to the Sharia Court of Appeal from the decisions of the Upper Area Court if and only if they involve questions relating to Islamic personal law. He referred to section 2 of the Sharia Court of Appeal Law and submitted that Islamic personal law means such matters relating to marriage, divorce custody of children and inheritance.
Learned counsel equally referred to section 135 of the State Government (Basic Constitutional and Transitional Provisions) Decree No.50 of 1991 and submitted that the wide jurisdiction the Decree conferred on the Sharia Court of Appeal to exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic law where all the parties are moslems has been effectively abrogated by the clear provisions of section 1 of the Constitution (Suspension and Modification) Decree No. 107 of 1993. He submitted that the appeal before the Sharia Court of Appeal, Yobe involving the matter of the appeal now at hand is caught by the Decree and this rendered the proceedings a nullity since the appeal related to question of land transaction simpliciter. Learned counsel urged this court to set aside the decision of the Sharia court of Appeal on the above score.
In response, the respondent, rightly too in my view, urged this court to consider the appeal based on the justice of it since at any rate, the issue raised is one that can only be competently dealt with by a person learned in law.
Undoubtedly, the issue of jurisdiction is very crucial for the obvious reason that even when parties have consented to irregularity arising out of the lack of competence of the court, the whole proceedings would be declared a nullity if taken up on appeal. See Western Steel Works Ltd v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617. For the above reason, the issue of jurisdiction cannot be frustrated by any disability or restriction and can thus be raised at any stage of the proceedings even for the first time at the Supreme Court. See CBN v. Manexport S.A. (1987) 1 NWLR (Pt. 217) 86 at 97; Opiti v. Ogbeiwi (1992) 4 NWLR (Pt. 234) 184 at 192; State v. Onagoruwa (1992) 2 SCNJ 1 at 11.
Any defect in jurisdiction entails and relates to embarking on the case in the first place and has no bearing on miscarriage of justice in the cause of the proceedings or for that matter, to the correctness of the decision. See The Queen; ex-parte Laniyan Ojo v. Gov-in-Council, Western Region (1962) All NLR 149 at 154; (1962) 1 SCNLR 231; Ohai v. Akpoemonye (1999) 1 NWLR (Pt.588) 521; (1999) 65 LRCN 77 at 87.
Related to the above are the determinants of jurisdiction.
From a plethora of decided authorities the Supreme Court has indicated quite clearly the factors that determine the competence of a court in assuming jurisdiction over a matter brought before it. These factors are:
(a) That the court is properly constituted with respect to its membership.
(b) That the subject matter of the action is within its Jurisdiction.
(c) That the action is initiated by due process of law.
(d) That any condition to the exercise of its jurisdiction has been fulfilled.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; A.-G., Fed. v. Guardian Newspapers (1999) 9 NWLR (Pt.618) 187 at 233; Western Steel Works Ltd v. Iron & Steel Workers Union (supra).
The factor that is called for consideration in this appeal is the one numbered (b). The appellants are of firm view that the subject matter of the present appeal is not within the jurisdiction of the Sharia Court of Appeal as conferred by s.242(2) of the 1979 Constitution as variously amended. As can be seen from the record of appeal, the subject matter before the trial Upper Area Court, Damaturu was the dispute which arose between the appellants and the respondent regarding the sale of the 2nd appellant’s house to the respondent by the appellants. The respondent sought an order of the trial court to declare the sale valid on the ground that he breached no condition of the sale agreement and was therefore the rightful title holder of the house. The jurisdiction of the Sharia Court of Appeal is conferred by the Constitution. Section 242 of the Constitution of the Federal Republic of Nigeria, 1979 in respect of the jurisdiction of the Sharia Court of Appeal of a State does provide 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 the Law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the court is competent to decide in accordance with the provisions of subsection (2) of this section.
(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 Moslems, 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 Moslem;
(d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a moslem or the maintenance or guardianship of a moslem who is physically or mentally infirm; or
(e) where all the parties to the proceedings (whether or not they are moslems) 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.
In the recent past, the above constitutional provision, had undergone some amendments oscillating the jurisdiction of the State Sharia Court of Appeal from an enlarged appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic law generally where the parties are moslems to the defined jurisdiction as conferred by s.242 of the Constitution aforesaid. Section 135 of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991 for example expanded the jurisdiction of Sharia Court of Appeal of the State as follows:-
“The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by a law of the State, exercise such appellate and supervisory jurisdiction in a civil proceedings involving questions of Islamic law where all the parties are moslems” (emphasis mine).
From the above provision it is beyond argument that the jurisdiction of the Sharia Court of Appeal of a State has been greatly enlarged to include the exercise of appellate and supervisory jurisdiction in civil proceedings in matters involving questions of Islamic law in general where the parties to the action are moslems. If that provision were in force when the appeal at hand was lodged before the court below, the appellants would have been put in a hopeless situation in that that court would have decidedly have jurisdiction to determine the appeal.
But no sooner had the States’ Sharia Court of Appeal settled to assume that wider jurisdiction than that Decree was repealed almost unwept, unhonoured and unsung. The Constitution of the Federal Republic of Nigeria, (Suspension and Modification) Decree No. 107 of 1993 was enacted restoring those provisions of the 1979 Constitution which had previously been amended provided only that the amendment contained in the Schedule to the Decree shall remain in force. See section 1 of the Decree. The Decree unarguably simply reverted the States’ Sharia Court of Appeal to the jurisdiction hereto conferred on them by section 242 of the 1979 Constitution. Perhaps as a matter of emphasis I need reiterate that the jurisdiction of the Sharia Court of a State which remains extant is limited to the following:
(1) Question of Islamic personal law relating to:-
(a) Marriage;
(b) Divorce;
(c) Inheritance including matters concerning wakf, gift, Will or succession;
(d) Custody of children including all aspects of Islamic personal law on issues relating to infants, prodigal or persons of unsound mind who are Moslems or the maintenance or guardianship of a moslems who is physically or mentally infirm; or where all the parties to the proceedings (whether not they are moslems) have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law.
Looking at the appeal at hand from whatever angle, the appeal that was lodged before the Sharia Court of Appeal, Yobe had nothing to do with any question the determination of which fell within the purview of section 242 of the 1979 Constitution. The simple matter before the trial Upper Area Court, Damaturu concerned pure contractual relationship between the appellants and the respondent. It was an issue whether in the fulfillment of the contractual obligations, the respondent had not breached the contract in relation to period of payment. The Sharia Court of Appeal, Yobe, in my view, was utterly wrong in overruling the appellants when they submitted that that court lacked the jurisdiction and competence to entertain the appeal. I find the Sharia Court of Appeal, Yobe to be without jurisdiction in entertaining the appeal because the matter over which the appeal was lodged before it was outside the jurisdiction of the court. Because the defect the proceedings of the court below manifested relates to the competence of the court, the whole proceedings are rendered a nullity. See NPA v. Panalpina World Transport (Nig.) Ltd. (1974) NMLR 82; (1973) 5 SC 77; Peenok investments Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1. So also is the judgment of the Sharia Court of Appeal since it was given without jurisdiction. See Umenweluaku v. Ezeana (1972) 5 SC 345.
From all that I have said above, it is clear that the only issue for determination must be answered in the negative and I so answer it. The lone ground of appeal in the circumstance therefore succeeds. The appeal is meritorious. I hereby allow it. The proceedings of the Sharia Court of Appeal, Yobe in suit NO. YBS/SCA/CV/16/93 including the judgment thereon dated 27th January, 1994 are hereby declared a nullity. They are accordingly set aside.
Parties shall bear their respective costs.
Other Citations: (2001)LCN/0940(CA)