Whether Sharia court of appeal has jurisdiction to entertain appeals on validity or otherwise of a notice of appeal

 
Tue Apr 6th, 2021 - Abuja (FCT)
 


GIMBA v. BAWA & ANOR
CITATION: (2021) LPELR-52926 (CA)

In the Court of Appeal (ABUJA JUDICIAL DIVISION)

On Wednesday, 10th February, 2021
Suit No: CA/A/890/S/2018
Before Their Lordships:
AHMAD OLAREWAJU BELGORE Justice of the Court of Appeal
RIDWAN MAIWADA ABDULLAHI Justice of the Court of Appeal
MOHAMMED BABA IDRIS Justice of the Court of Appeal

Between
ALHASSAN GIMBA – Appellant
And
1. NDABAMBO BAWA
2. NDAGI AHMADU – Respondent

LEADING JUDGMENT DELIVERED BY AHMAD OLAREWAJU BELGORE, J.C.A.
FACTS;
This appeal emanated from the decision of the Niger State Sharia Court of Appeal, Minna, contained in its ruling delivered on the 4th April, 2016 Coram: Hon Khadi Abubakar Sadiq Hassan and Hon. Khadi Suleiman Abubakar Kutigi and Khadi Saidu Hassan, whereby the Court below after finding that the Appellant has not presented before it, enough material upon which it is called upon to act, went further to also directed the parties to go back to the Upper Sharia Court Lemu in the interest of justice, for the matter to be completed. The Respondents in this Appeal filed an appeal at the Sharia Court of Appeal against the decision of the Sharia Court Edozhigi.

The Respondents filed an appeal against the decision of the trial Court in suit No. ED/CV/2/2013 before the lower Court. The Appellant herein filed a notice of preliminary objection contesting the competency of the notice of appeal filed on the ground that it was filed out of time. The lower Court after hearing the arguments from both parties dismissed the objection and adjourned to hear the substantive appeal on merit.
Dissatisfied with the decision of the lower Court, the Appellant filed an appeal before the Court below contesting the dismissal of the said preliminary objection.
The Court below dismissed the appeal, hence this further appeal to the Court of Appeal.

ISSUES FOR DETERMINATION
The appeal was determined on the following issues: 1. Whether there can be an appeal without the filing of a valid notice of appeal? 2. Whether the issue of jurisdiction raised by the lower Court was proper in the circumstance?

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APPELLANT’S SUBMISSIONS TAKEN TOGETHER
Referring to the cases of COLITO NIG. LTD & 1 ORS. VS. HON. JUSTICE TITI DAIBU & 3 ORS 2010 6 WRN PG 72, et al, learned counsel for the Appellant submitted that the Appellant is challenging the competence of the notice of appeal on the basis that the notice of appeal is the foundation of every appeal and where same is defective, no appeal can stand on such defective notice of appeal.

Counsel argued that the Respondents filed their notice of appeal with a mutilated date reading 28-4-2015 the same day the judgment being appealed against was delivered. That the Appellant seeing the discrepancy on the notice of appeal applied to the lower Court for Certified True Copy (CTC) of the said notice of appeal and he was issued with a notice of appeal reading the date 29-5-2015 (i.e. more than 30 days after the decision being appealed against was delivered).

Learned counsel contended that the said notice of appeal mutilated to read 28-4-2015 and the notice of appeal reading 29-5-2015 are all incompetent. He referred the Court to Order 11 Rule 2 of the Sharia (Civil Procedure) Rules, 2009 of Niger State and the case of ATUCHUKWU VS. ADINDU (2011) LPELR-3821 (CA).

He added that the Respondent did not seek to amend the notice of appeal and also the Court below did not pronounce on the validity of the notice of appeal, but rather held that the parties should go back to the Court below to complete the matter.

He submitted that where the Court lacks jurisdiction the proper order to be made is that of striking out the case. The Court below rather than striking out the appeal if indeed the issue of jurisdiction is in issue, held that the appeal fails. He referred the Court to the case of COMMERCIAL BANK (CREDIT LYONNAIS) NIG. LTD VS. UNION BANK NIG. PLC 2006 12 WRN PG 75.
On the basis of all the above, learned counsel urged the Court to resolve all the issues in this appeal in favour of the Appellant.

RESOLUTION OF ISSUE
In resolving the issues between parties, the Court stated the trite position of the law that a notice of appeal is the foundation of an appeal against any appealable decision. That if a notice of appeal is defective then the Court below would lack legal competence to entertain the appeal. It will strike out the appeal. See RAJI VS. UNILORIN 2018 15 NWLR PT. 1642 AT 235.

The Court stated that in the instant case, the argument of the Appellant before the Court below is that the notice of appeal filed at the lower Court is defective because it was filed out of time and also it contained a mutilated date.

That the evidence on record shows that the issue before the trial Court was that of a landed property. It is not an issue of Islamic personal law. It was held that the appeal from the Upper Sharia Court, Lemu was filed at a wrong forum and that the Sharia Court of Appeal was clearly in error to have assumed jurisdiction over the matter which was manifestly outside its area of jurisdiction as provided in Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It was held that the jurisdiction of the Sharia Court of Appeal of a State is limited to matters of Islamic Personal Law and so the issue of validity or otherwise of a notice of appeal does not relate to Islamic Personal Law in respect of which the Sharia Court of Appeal of a State has jurisdiction.

Jurisdiction of an appellate Court was held to be determined by the nature of the claim of the Plaintiff before the trial Court and that it is trite that the issue of jurisdiction is important and fundamental and that is why it can be raised at any stage of the proceedings even on appeal. Relying on PETROJESSICA ENTERPRISES LTD. V. LEVENTIS & TECHNICAL COMPANY LTD (1992) NWLR (pt. 244) 675.

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It was held that, learned counsel for the Appellant busied himself arguing the merit of the case and did not advert his mind to the issue of jurisdiction as apparent from the claim and/or appeal before the Court below.

It was finally held that since one of the reliefs sought in this appeal is that of setting aside the decision of the Sharia Court of Appeal of Niger State, it is therefore safe to set aside the decision of that Court and to remit this appeal to the Honourable Chief Judge of Niger State with the directive that the appeal from the Upper Sharia Court of Appeal, Lemu, be heard by the Niger State High Court in its appellate jurisdiction.

In the circumstance, the proceedings before the Sharia Court of Appeal, Niger State, being a nullity, having been conducted without jurisdiction, were set aside.

It was ordered that the appeal from the Upper Sharia Court, Lemu be remitted to the Honourable Chief Judge of Niger State for the appeal to be heard by the State High Court in its appellate jurisdiction.
HELD;

The Court of Appeal set aside the proceedings before the Sharia Court of Appeal, Niger State, for being a nullity having been conducted without jurisdiction. It was ordered that the appeal from the Upper Sharia Court, Lemu be remitted to the Honourable Chief Judge of Niger State for the appeal to be heard by the State High Court in its appellate jurisdiction..

APPEARANCES:

Sebastine Chii Ugbogu, Esq. For Appellant(s)
Respondents not represented

Compiled by LawPavilion.

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source: Guardian