Legalpedia Citation: (2023-06) Legalpedia 59933 (CA)

In the Court of Appeal

GOMBE JUDICIAL DIVISION

Tue May 16, 2023

Suit Number: CA/G/141S/2021

CORAM

RIDWAN MAIWADA ABDULLAHI JCA

MOHAMMED BABA IDRIS JCA

MOHAMMED DANJUMA JCA

PARTIES

MAI GANA

APPELLANTS

GONI MODU

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ISLAMIC LAW, JUDGMENT, LAND, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent sued the Appellant on the 12th day of February, 2020 before the Upper Sharia Court Geidam, over a farm land and after hearing the matter, a declaratory judgment was entered in favour of the Appellant.

Dissatisfied with the judgment of the trial Court, the Respondent appealed to the High Court of Justice. After hearing the appeal, the Court below set aside the trial Court’s decision and in its place conferred title of the farmland to the Respondent.

Dissatisfied with the judgment of the Court below (High Court), the Appellant filed a Notice of Appeal hence the instant appeal.

 

HELD

Appeal dismissed

ISSUES

Whether the Court below was right to has assumed that the Appellant did not counter-claim the claim before the trial Court and thereby admitting the claim against him (the Appellant)?

Whether the Court below was right to have held that the trial Court judge did not apply the Islamic law principles of an Izar either during proceeding or before judgment was delivered?

Whether the Court below was right to have assumed that the trial judge misapplied the principle of Hauzi?

 

RATIONES DECIDENDI

APPEAL – DEPOSIT TO BE MADE FOR THE DUE PRESENTATION OF THE APPEAL AND ANY COST THAT MAY BE ORDERED TO BE PAID BY THE APPELLANT

By Order 8 Rule 11(1) of the Court of Appeal Rules 2021, upon transmission of the record of appeal, the Appellant shall within a time to be stipulated by the Registrar of the Court, deposit not less than N50,000 (Fifty Thousand Naira) with the Deputy Chief Registrar of the division for the due presentation of the appeal and for the payment of any cost that may be ordered to be paid by the Appellant; provided that no deposit shall be required from an indigent person or where the deposit would be payable by the government of the Federal Republic of Nigeria or a State, or by any government department.

The Respondent has argued that the provision of Order 8 Rule 11(1) was not complied with by the Appellant herein. The Appellant’s argument that he is an indigent person cannot stand because no order has been made by this Court that this appeal be presented by the Appellant herein as an indigent person pursuant to Order 13 of the Rules.​

Where an Appellant fails to comply with the provision of Order 8 Rule 11(1), this Court is enjoined upon an application by the Respondent, to order that the deposit or any additional deposit be made. The Court cannot strike out the Notice of Appeal. In the circumstances, the Notice of Appeal filed is competent, including the transmitted records. – Per M. B. Idris, JCA

 

COUNTER-CLAIM – QUALITIES OF A COUNTER CLAIM IN SHARIA

It must be mentioned that a counter-claim just like a claim in Sharia must be specific and it shall have full explanation. See BIRI VS. MAIRUWA (1996) 8 NWLR (PT. 467) 425, MAFOLATU VS. USAIN AKANBI ITA ALAMU CV/K/815/84 (UNREPORTED). For a counter-claim to meet the degree of clarity required by Sharia, it must be realistic, unambiguous, definite, precise, apt and complete. It must not be evasive, vague and/or bogus. – Per M. B. Idris, JCA

 

IZAR – MEANING OF IZAR

It must be mentioned that Izar is a pre-judgment plea which enables the parties to a case a final opportunity to go over their respective claims or ventilate their grounds before judgment is delivered. It is synonymous to allocutus in a criminal trial under the common law system. This procedure is a condition precedent to judgment. Where any proceeding is lacking in this fundamental procedure, the judgment is a nullity no matter how well conducted and thus liable to be set aside. Izar is necessary and fundamental in Sharia proceedings. It has to be done at the end of the trial and before judgment is delivered. A failure to apply Izar vitiates the proceedings and the judgment delivered without Izar will be null and void. See generally MUHAMMADU VS. MUHAMMADU (2001) 6 NWLR (PT. 708) 104, SULEIMAN VS. ISYAKU (2006) 3 SLR 1, HAKIMIN BOYI UMARU VS. AISHA BAKOSHI (2006) 3 SLR 1 and IHKAM AHKAM PAGE 21. – Per M. B. Idris, JCA

ACADEMIC ISSUE – WHEN AN ISSUE BECOMES AN ACADEMIC ISSUES

Having resolved issue three in favour of the Appellant, this issue becomes academic. This is so because if the Appellant had no counter-claim before the trial Court, how could he have been entitled to judgment in the first place? So that whether the learned trial judge rightly applied the principle of Hauzi or not becomes academic in the circumstances. Where the resolution of an issue is not necessary, it becomes an academic question. The Court has established that it will not indulge itself in the luxury of academic exercise. See AGBAJE VS. INEC (2016) 4 NWLR (PT. 1501) 151, ODEDO VS. OGUEBEGO (2015) 13 NWLR 1476) 229, ODUN VS. PDP (2015) 6 NWLR (PT. 1456) 527. – Per M. B. Idris, JCA

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Area Court Law, 1968
3. Court of Appeal Rules 2021
4. Land Use Act 

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