ALIYU SALIHU V ALHAJI ABDUL WASIU

CORAM

NNAMANI, JUSTICE SUPREME COURT

MUSA DATIJJO MUHAMMAD JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT

MUHAMMAD SAFILLAHI MUNTAKA-COOMASSIE, JUSTICE SUPREME COURT

SULEIMAN GALADIMA, JUSTICE SUPREME COURT

OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT

MUSA DATIJJO MUHAMMAD, JUSTICE SUPREME COURT

PARTIES

ALIYU SALIHU

APPELLANTS

ALHAJI ABDUL WASIU

RESPONDENTS

AREA(S) OF LAW

APPEAL, ACTION, COURT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the Court of Appeal, Sokoto Judicial Division, (hereinafter referred to as the “Court below”) delivered on the 27th day of June, 2012. The Court below had allowed the appeal of the present Appellant and set aside the judgment of the Sharia Court of Appeal, Kebbi State, delivered on 30/11/2011. The Court below, however, remitted the appeal to the Chief Judge of Kebbi State for hearing before the High Court in its Appellate jurisdiction.

The Appellant had commenced an action against the Respondent at the Upper Sharia Court, Jega, Kebbi State claiming two farms and a house which were the properties of his paternal uncle, known as Abdulmuminu. It was not disputed that the same Abdulmuminu is the maternal uncle of the Respondent. The Appellant’s action was meant to have the properties in question shared between the parties because the owner – Abdulmuminu had been away from home for about sixty (60) years and there was no news that he was alive or that he has children alive or at all. In response to the Appellant’s claim, the Respondent contended that indeed there were three farms that belonged to Abdulmuminu – that the third farm to the two being claimed by the Appellant was in possession of the Appellant. The Respondent, however, had no witness to establish that fact. But the Appellant who contended that the said third farm, known as Bakin Gari farm, belonged to his father called two witnesses to prove his claim, although the testimonies of one of the two witnesses failed to meet the requirements of Islamic law on credibility. The appellant later took oath and proceeded by ablution. The trial of the Upper Sharia Court, Jega then found that since the death of Abdulmuminu had not been confirmed and his age mates were still alive in his town, his properties would not be distributed until his death was confirmed or his age mates were no longer alive. In its judgment, the Upper Sharia Court held that the Bakin Gari farm belonged to the Appellant’s father. Regarding the two farms and a house of Abdulmuminu, the trial Upper Sharia Court held that a compromise had to be reached, since both parties were entitled to the properties; the Court then divided the said properties into two and directed that each of the contending parties should hold one part each in trust until the return of Abdulmuminu or his descendant. But none of the parties should erect new structures on the properties, sell or give away any part as a gift. The farms were to be used for farming only.

The Respondent being dissatisfied with the decision of the Upper Sharia Court, Jega appealed to the Sharia Court of Appeal. Upon review of the decision of the trial Upper Sharia Court, the Sharia Court of Appeal overturned the decision and allowed the appeal. The Appellant was not satisfied with the decision of the Sharia Court of Appeal, hence he appealed to the Court below and sought an order setting aside the judgment of the Sharia Court of Appeal, Kebbi State and affirm the decision of the Upper Sharia Court. The Appellant being further dissatisfied with the decision of the Court below filed a Notice of Appeal on the 28th day of August, 2012, of three Grounds.

HELD

Appeal dismissed

ISSUES

RATIONES DECIDENDI

GROUND(S) OF APPEAL – CONSEQUENCE OF A GROUND OF APPEAL WHICH NO ISSUE FOR DETERMINATION IS FORMULATED

“The law is already settled, that any ground of appeal from which no issue has been distilled is deemed abandoned and no argument can be countenanced on such grounds of appeal, by the court. The grounds are incompetent. In the circumstance, no issue having been formulated from grounds 2 and 3 of the Amended Notice of Appeal, the said grounds are deemed abandoned. Accordingly, the said grounds 2 and 3 being incompetent are liable to be struck out as no argument can be countenanced on them. Appeal is decided on the issues formulated from the grounds of appeal. See; Sylvanus Odife & Anor Vs. Goefrev Aniemeka & Ors (1992) NWLR (Pt.251) 25; (1992) 7 SCNJ 3371 (1992) LPELR – 3439 (SC). Ogundiya Vs The State (1991) 3 NWLR (Pt.181) 519 at 532-533; West African Examination Council (WAEC) Vs. Omodolapo Y. Adevaniu (2008) 97 SCM 173 at 188 (2008) 9 NWLR (Pt.1092) 290; Albert Afegbai Vs. A.G Edo State (2001) 14 NWLR (Pt.733) 425 at 451 (2001) 11 SCM 42. Grounds 2 and 3 of the Amended Notice of Appeal filed by the appellant are struck out.” – Per ARIWOOLA, JSC

REPLY BRIEF – PURPOSE OF A REPLY BRIEF

“It is trite that a reply brief is filed only in response to a new argument of the respondent on law that has been raised by the respondent but was not touched by the appellant. A reply brief is to deal with a new issue of law or arguments raised in an objection in the respondent’s brief which was not covered by the appellant’s brief. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the court. As a reply brief has been held not to be a repair kit to put right any lacuna or error in the appellant’s brief of argument. See; Dr. Augustine N. Mozie & Ors Vs Chike Mbamalu & Ors (2006) 12 SCM 11 (Pt. 1) 306 at 320; Osuji Vs Ekeocha (2009) 10 SCM 72 at 88. I shall therefore not countenance the appellant’s reply brief of argument which has not said anything new from what is contained in his main brief of argument.” – Per ARIWOOLA, JSC

POWER OF COURT – POWER OF THE COURT OF APPEAL TO REMIT A CASE TO A LOWER COURT

“My Lords, there is no doubt that the court below had jurisdiction and was competent to determine the appeal from the judgment of Kebbi State Sharia Court of Appeal. Indeed, that could not have been the contention of the appellant herein, in view of the clear provisions of the Constitution on the jurisdiction of the court below on appeals from the Sharia Court of Appeal. Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), inter alia, provides as follows: –

“S.240 – Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Sharia Court of Appeal of a State———-”

Indeed, that was why the instant appellant, in the first place, filed his appeal before the court for adjudication. However, the only issue being seriously contested by the appellant is the lower court’s order remitting the case to Kebbi State Chief Judge which has necessary competence to determine the appeal in the High Court’s appellate jurisdiction.

There is no doubt that the Appellant’s counsel did not advertise his mind to the provisions of Section 244 of the 1999 Constitution which governs the procedure the court below is empowered to employ in determining appeals to it from the Sharia Court of Appeal. It provides thus:-

“S.244 (1) – An appeal shall lie from the decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings, before the Sharia Court of Appeal with respect to any question of Islamic Personal law which the Sharia Court of Appeal is competent to decide.

(2) Any right of Appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by the Section shall be:

exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;

exercised in accordance with an Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

By virtue of the provisions of Section 244 (2) (b) supra, the National Assembly and the President of the Court of Appeal, promulgated and made Section 15 of the Court of Appeal Act, 2004, (as amended), and Order 3 rule 23 of the Court of Appeal Rules respectively. This court, when considering the provisions of the 1976 Court of Appeal Act which is impari materia with the 2004 Act (as amended) and the relevant Rules of the Court of Appeal in Chief Samuel Adebisi Falomo Vs Omoniyi Banigbe & Ors (1998) 7 NWLR (Pt. 557) 679 at 701 opined as follows:-

“In the first place, there is Section 16 of the Court of Appeal Act, 1976 which empowers the Court of Appeal to exercise full jurisdiction over all matters before it and may, inter alia, remit a case to the court below for the purpose of rehearing or may give such other directions as to the manner in which the court below shall deal with the case, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction. See; lyaji Vs Eyigebe (1987) 3 NWLR (Pt.61) 523 at 530, E-G, Igboho Irepo L.G.A. and Another Vs The Boundary Settlement Commissioner (1988) 2 SCNJ 28; (1988) 1 NWLR (Pt.69) 189 etc.

There is also the provision of Order 3 rule 23 of the Court of Appeal, Rules, 1981 which, among other alia, empowers the Court of Appeal to give any judgment or make such further or other order as a case may require. These powers are exercisable by the court in favour of all or any of the parties although such parties may not have appealed from or complained of the decision.”

It is clear from the above that the complaint of the appellant in the instant appeal is similar to what this court had in mind in the above case. The remitting of the appeal by the Court below to the appropriate court that has jurisdiction to determine the appeal in its appellate jurisdiction, when the court below came to the conclusion, rightly too, that the Sharia Court of Appeal that adjudicated on the appeal lacked competence to hear the matter.

It is therefore a misconception, to say the least, for the learned appellant’s counsel to have argued that because the Sharia Court of Appeal could only have made a valid order of transfer of the case before the striking out of same, the court below would also lack the required competence to again transfer the case after it had struck it out. The exercise of the jurisdiction to transfer or remit a case to an appropriate and competent court by the court below, pursuant to its Section 15 of the Act and Order 3 rule 23 of the Court of Appeal Rules was properly carried out.

Therefore, the Court below was right when it made an order remitting the appeal to the Chief Judge of Kebbi State for hearing before the High Court in its appellate jurisdiction, …” – Per ARIWOOLA, JSC