CORAM
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Mohammed Ahmed Ramat Justice of the Court of Appeal
PARTIES
1. BAKA UMARU
2. YAYA UMARU
APPELLANTS
MADAKI BELLO
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, SHARIA LAW, ISLAMIC PERSONAL LAW, INHERITANCE, SUCCESSION, JURISDICTION, APPEAL, PRACTICE AND PROCEDURE, EVIDENCE, BURDEN OF PROOF, TRIAL DE NOVO, SETTING ASIDE JUDGMENTS, OATH TAKING
SUMMARY OF FACTS
On 27th March 2017, the Respondent, Madaki Bello, filed an action at Area Court Tongo for the distribution of the estates of Yaya Agaba and Sambo among their legal heirs. The trial court distributed the estates accordingly in favor of the Respondent.
Dissatisfied with the distribution, the 1st Appellant, Baka Umaru, appealed to the Upper Area Court, Malam Sidi, which set aside the decision of the trial court and transferred the matter to Area Court II, Bajoga for retrial. Upon hearing the matter, Area Court II, Bajoga found that since the plaintiff (Respondent) was unable to prove his case, the defendants (Appellants) were directed to take an oath, after which judgment was entered in their favor.
On appeal to the Upper Area Court, Bajoga, the decision of Area Court II, Bajoga was affirmed. However, on further appeal to the Sharia Court of Appeal, Gombe State, the court observed several errors in the proceedings. The Sharia Court of Appeal noted that the defendants had denied having any encumbrance in their father’s estate while simultaneously claiming they had given bulls to the heirs of Gambo as their shares of inheritance. The court found that the burden of proof should have been on the defendants to prove their claim about giving bulls, not on the plaintiff to disprove it.
The Sharia Court of Appeal found that offering an oath to the defendants was an error in law, as it should have been the plaintiff who was entitled to take the oath under Sharia principles. The court set aside the decisions of both the Upper Area Court Bajoga and Area Court II Bajoga because they were “built on a failed claim and an oath was offered wrongly and it is against the Sharia rules.” The court also set aside the decision of Upper Area Court Malam Sidi for “overlooking the content of the records of the Tongo Area Court.”
Consequently, the Sharia Court of Appeal affirmed the original decision of the Tongo Area Court, stating it had investigated the matter properly and followed Sharia rules in making decisions.
The Appellants were dissatisfied and appealed to the Court of Appeal, raising issues about the Sharia Court of Appeal’s jurisdiction to affirm a decision that had been set aside and whether the court was right to refuse to consider that the Respondent had failed to prove his case.
HELD
1. The appeal was dismissed and the judgment of the Sharia Court of Appeal was affirmed.
2. The Court held that the Sharia Court of Appeal had jurisdiction to set aside the judgments of the intermediate courts and restore the original Tongo Area Court decision.
3. The Court found that when the Sharia Court of Appeal set aside the subsequent judgments, those judgments were “wiped out” entirely, making the original Tongo Area Court decision the only subsisting judgment.
4. The Court emphasized that under Islamic Law, appellate courts are mandated to look into the whole gamut of a case to determine where justice lies, irrespective of technicalities.
5. The Court held that arguments about the concurrent findings of courts whose decisions had been set aside were of no relevance since those decisions no longer existed.
ISSUES
1. Whether the Sharia Court of Appeal, Gombe (Lower Court) had the jurisdiction to affirm the decision of Tongo Area Court already set aside and order of retrial issued by Upper Area Court, Malam Sidi?
2. Whether the Court below was right when it refused to consider the fact that the Respondents as plaintiffs failed to prove their case as required of them by law.?
RATIONES DECIDENDI
SHARIA COURT OF APPEAL JURISDICTION – LIMITED TO ISLAMIC PERSONAL LAW
The Sharia Court of Appeal has its jurisdiction provided for under Section 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in addition to such other jurisdiction as may be conferred upon it by the law of the state. Subsection (2) of the section gives the Sharia Court of Appeal jurisdiction and powers limited to issues relating to Islamic Personal Law, namely marriage, divorce, inheritance, including matters concerning waqf, gift, will or succession, custody and guardianship of children. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
DISTINCTION BETWEEN AREA COURTS AND SHARIA COURT OF APPEAL JURISDICTION
While Courts lower than Sharia Court of Appeal, such as Area Courts and Upper Area Court have jurisdiction to entertain any question of Islamic Law, the Sharia Court of Appeal have its jurisdiction confined in Section 277(2) of the Constitution aforesaid. Thus, it is not all Islamic matters determined by the Upper Area/Sharia Courts that are subject of the jurisdiction of the Sharia Court of Appeal. The Court is only constitutionally competent to hear appeals from Upper Area/Sharia Courts with respect to matters involving Islamic Personal Law only. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
MEANING OF TRIAL DE NOVO – NEW HEARING
It was held in plethora of decisions that trial or hearing de novo means trying a matter anew as if it had not been heard before. It is, therefore, a new hearing or a hearing for the second time contemplating an entire trial in same matter in which the matters was originally heard and a review of the previous hearing. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
CIRCUMSTANCES FOR RE-TRIAL UNDER ISLAMIC LAW
A re-trial will only be ordered under Islamic Law under the following circumstances: a. Where a Judge tries a case without jurisdiction, it will be nullified and retried by a Judge with competence to do so b. Where a Judge delivers judgment which is contrary to a clear text of the Quran or Hadith, it will be nullified and retried. c. Where a Judge passes judgment which is perverse, it will be set aside an order of re-trial made. d. Where a trial Judge discovers his mistake in a procedure and makes the correction himself or sends it to another Judge.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
APPELLATE APPROACH IN ISLAMIC LAW – SUBSTANCE OVER FORM
In the process of hearing an appeal before it, the Sharia Court of Appeal shall be guided by the guidelines the Supreme Court had given to the effect that in claims before Native Court, Area Court and Customary Court, it is necessary to look at the substance, rather than at the form of the claim. Thus, the appeal Court must not be too strict in regard to matters of procedure. The Court must look at the whole proceedings to understand what the parties were fighting for.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.
ISLAMIC APPELLATE COURTS – MANDATE TO SEEK JUSTICE
Under Islamic Law, the appellate Courts are mandated to look into the whole gamut of a case and see where justice of the case lies irrespective of whatever technicalities involved. In other words, it is not mandatory nor is it necessary for the Courts to rely solely on the grounds of appeal or issues raised therein. The Courts can go outside the grounds of appeal at any time and at any stage provided there are enough materials upon which a just decision can be reached.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.
EFFECT OF SETTING ASIDE JUDGMENT – COMPLETE ERASURE
A judgment set aside is as if it had not been given at all and hence it is wiped out. In Adefulu & Ors V. Okulaja & Ors (1996) LPELR-90 (SC), it was held that where a Court of Appeal sets aside a judgment of lower Court, the decision of the lower Court is wiped out and the judgment of an Appeal Court allowing an appeal has the effect of substituting the Appeal Court judgment for the judgment of the Court below set aside, making the decision appealed against disappear altogether. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
RESTORATION OF ORIGINAL JUDGMENT – WIPING OUT INTERMEDIATE DECISIONS
In the instant case, the lower Court in setting aside the judgment of the Upper Area Court, Malam Sidi automatically wiped out the said judgment as well as the judgment of the Upper Area Court, Bajoga, which affirmed an earlier judgment of Area Court II, Bajoga. The subsisting judgment is that of the Area Court, Tonga, which was restored by the lower Court. Thus, the issue of re-trial been alluded to by the learned counsel for the Appellants is of no moment as the orders for re-trial and/or trial de novo has been wiped out completely. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
BURDEN OF PROOF IN ISLAMIC LAW – BAYYINAH PRINCIPLE
Proof in Islamic Law is known as ‘Bayyinah’ while evidence is referred to as ‘Al-Bayyinat, Alal Muddai’. Burden of proof becomes apparent when the defendant denies the claim, complaint or allegation against him. In both English and Islamic Law procedures, the burden of proof is the same, that is, he who asserts must prove but the manner in which that burden is discharged is fundamentally different. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
BURDEN OF PROOF AND OATH IN ISLAMIC LAW
The burden of proof under Islamic Law is on the plaintiff and failure to discharge, the defendant is called upon to take an oath of rebuttal. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
APPELLATE INTERFERENCE WITH CONCURRENT FINDINGS
An Appellate Court hardly interfere with concurrent decisions of the lower Court except where they appear to be perverse.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.
LEGAL CONSEQUENCES OF SET ASIDE DECISIONS
All what transpired at the Area Court and Upper Area Court, Bajoga as well as Upper Area Court, Mallam Sidi amounted to nothing because their decisions were set aside by the lower Court. Consequently, the argument of the counsel to the Appellants on those decision is otiose and same cannot be countenanced by this Court. The only subsisting decision is that of Area Court, Tongo – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
EFFECT OF TRIAL DE NOVO – OPPORTUNITY TO RESTRUCTURE
Trial de novo means a plaintiff is given another chance to re-litigate the same matter or in a more general sense, the parties are at liberty to once more reframe their case and restructure it as each may deem it appropriate. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Section 277 – Sharia Court of Appeal jurisdiction
3. Ashalu Al-Madrik, 2nd Edition (Islamic Law text)