Alhaji Idris Adamu & Ors V. Hajiya Jummai Bashiru & Ors (1997)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
In a motion on notice, the applicants herein, prayed for:
“(a) An order of stay of proceedings in this case pending the determination of the applicants appeal to the Court of Appeal.
(b) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
The application was brought pursuant to Order 3 rules 1 and 3 of the Court of Appeal Rules. It was supported by a nine paragraph affidavit. A further and better affidavit of six paragraphs was also filed by the applicants. The respondents on their part filed a six paragraph counter-affidavit. Some annextures were also exhibited.
In moving the motion, learned counsel for the applicants relied on all the paragraphs of the affidavit in support, the further and better affidavit and the annextures exhibited therein. He made copious submission that the main grouse of the applicants was that at the trial Area Court Nassarawa Gwong, Jos, where the suit was initiated, the trial court made distribution of the estate left by one Alhaji Garba Adama, the deceased. The parties before the trial Area Court, he contended further, indicated their agreement to the distribution made by the trial court. On the appeal before the lower court, learned counsel submitted that there were no appellants before the lower court as the case was reported to the lower court by inspectorate of the Area Court Division and as the lower court, by its proceeding of 25/6/96 had terminated the appeal before it. There was therefore no competent appeal. Learned counsel filed a motion on 23/10/96 so that the lower court could strike out the appeal but his application was refused on the 9/12/96.
Learned counsel submitted further that he filed another motion for stay of proceeding but was equally refused on 29/1/97.
It was the contention of learned counsel for the applicants that they filed their appeal in time and by virtue of the provision of section 223(1) of the 1979 Constitution; their appeal was competent as the section did not differentiate between an interlocutory appeal or an appeal on a final decision of a court. Learned counsel for the applicants finally adumbrated on the general principles which govern the grant of an application for a stay of proceedings. It was his view also that there is no distinction between the principles governing a stay of execution or proceeding under the Common Law and those under Islamic Law. He urged this court to grant the application.
Learned counsel for the respondents in his submission relied on the paragraphs of the counter-affidavit. In opposing the application, learned counsel formulated two issues:
(a) Whether there is a valid appeal filed at the Sharia Court of Appeal or Court of Appeal.
(b) If answer to (a) above is in the affirmative whether the applicants have satisfied the laid down conditions for the grant of stay of proceeding under the Sharia.
Learned counsel argued that by the combined effect of section 223(1) of the 1979 Constitution and Section 25 (2) of the Court of Appeal Act, 1976 (as amended) an appellant shall enter an appeal to the Court of Appeal on final decisions within 3 months whereas same shall be entered within 14 days if interlocutory from the date of delivery. The applicants, he contended, had a duty to explain why they were unable to appeal within the stipulated period. It was his view that as the ruling sought to be appealed against was delivered on 9/12/96 and appeal entered on 20/1/97, There was a delay of 3 days. Thus, as appellants did not seek for leave and enlargement of time to appeal, the Notice of appeal filed was invalid. There was therefore no competent and subsisting appeal before this court.
On the second issue, learned counsel for the respondents tried to draw distinctions between the principles for Stay under Islamic Law and the Common Law. He argued that the applicants have failed to show in their affidavits where the decision of the lower court has gone contrary to any NASS (text). It was argued for the respondents that what was before the lower court was an issue of distribution of estate of a deceased person. Learned counsel argued further that what delayed the matter at the lower court was that the applicants admitted that they had sold most of the properties left by the deceased person and that they settled his debts. Applicants promised to render an account of the estate of the deceased before the lower court but failed to fulfill their promise. He submitted that the issue of indebtedness of the deceased was paramount and as a first charge on the estate of the deceased that had to be determined before any distribution of the whole estate could be embarked upon. It will not therefore, be in the interest of Sharia to stay the proceeding before the lower court. As the ruling of the lower court was declaratory, it cannot be stayed. Learned counsel for the respondents cited some authorities from Siraj al alik Sharh Ashal Al-.masaliki Vol. 1, by Ibn Husnaini; Al-Mawarith fi al-Shariat al Islamiyau ‘Ala Dhau’ i Al-Kitabi Wai Sunnati, by Al Sabuni, A. Al-Mawarith fi al Shariati Al Islamiyati; 4th edition by Makhluf, M: figh Al-Sunnah, Vol. 3 by Sabiq, S. He finally urged the court to refuse and dismiss the application.
In treating this application I think it is very necessary to determine some preliminary but important issues, that is to say; whether there is a subsisting appeal before the lower court as well as before this court, before an order for stay of proceeding can be granted or refused. Let me start with the appeal before the lower court and I will start with the ruling of 9/12/96. In that ruling, the learned kadis of the lower court stated:-
“To our mind the said proceeding of 25/6/96 entirely from beginning to the end of it does not in any way terminates (sic) the appeal before this Hon. Court having regards to the Report of the Inspector of Area Courts to the Sharia Court of Appeal of 11/9/96.”
In their counter-affidavit, the respondents averred in paragraphs 3 (g) as follows:
“That the Quaranic heirs being dissatisfied filed an appeal at the Sharia Court of Appeal, Jos sometimes in 1991”
By the provisions of section 2(3) of the Sharia Court of Appeal Rules, 1960 (the Rules) an appeal to the Shaira Court of Appeal is deemed properly entered if it is filed through any of the following three ways:
(a) In the form of a petition in writing presented by the appellant or some person duly authorized to do so on his behalf; or
(b) With the permission of the court, by the appellant dictating his prayer to the Registrar or other Officer of the Court; or
(c) By the appellant stating orally his prayer to the court and the appellant shall, unless the court otherwise directs, attach to the petition or produce to the Registrar or the court as the case may be, a copy of the order or decision appealed against. (Italics supplied).
There was no dispute that there was some sharing of the estate left by the deceased conducted by the trial court. Some members of the deceased’s family were dissatisfied with the sharing by the Area Court. They petitioned the Director of Area Courts. This was admitted by the applicants in their further and better affidavit;
“3(g) That the sharing done by the Area Court was acceptable to the respondents except two of them i.e. Hajiya Jummai Bashiru and Hajiya Yelwa Yusufu who then applied to the Director of Area Courts to review the case.”
In exercise of powers conferred on him, the Director of Area Courts, after reviewing the case, wrote and submitted a report to the lower court. Based on that report, the lower court commenced hearing of the appeal on 25/6/96. Now, considering the above circumstances, I am of the firm view that there was a valid and subsisting appeal before the lower court. This is because from whichever angle one looks at the issue, one is bound to come to the conclusion that there was a subsisting appeal before the lower court. There is no doubt that the Director of Area Courts did not form one of the parties before the trial court. But from the provision of section 50(1) of the Area Courts Edict, 1968, the inspector of an Area Court (Director) has been conferred with such power of making report to an appeal court. The section stated:
“50(1) An inspector, if in his opinion there has been miscarriage of Justice in any case before an Area court to which he has access under the provisions of section 47, may of his own motion or in his absolute discretion on the application of any person concerned, report that case to the court to which an appeal in such case would lie.”
In the absence of anything to the contrary, I hold that there was a valid and subsisting appeal before the lower court.
Another vital point is that once the lower court is seized of an appeal it has the power to exercise the rules specified by section 7(1) & (2) of the Sharia Court of Appeal Law 1960. This section, especially in paragraph (2) states as follows:
“7(2) The court shall not normally re-hear or re-try the case but if it shall be necessary for the purpose of elucidating or amplifying the record of the court below and arriving at the true facts of the case the court may re-hear or re-try the case in whole or in part and may-
(a) allow or require, witnesses to be called, whether or not they gave evidence before the court below;
(b) order any reference to be made;
(c) call for any document or other exhibits;
(d) inspect any object or place;
(e) call for and examine all original records of the court below;
(f) adjourn the hearing from time to time and place to place;
(g) door order to be done anything which the court below has power to do or order,
(h) generally exercise any of the powers conferred upon it by section 10 of the Law” (Italics supplied)
In view of the above provisions and in addition to the power conferred on the Sharia Court of Appeal by section 242 of the 1979 Constitution of the Federation (as amended) and section 50(3) and (4) of the Area Courts Edict I hold the view that the lower court was quite right in adopting the review procedure of the case on appeal as well as in making of any justifiable order or orders as the Justice of the case would require. Further, it should be noted very well that the law, practice and procedure applicable in the Sharia Court of Appeal of a State are as regulated by the 1979 Constitution (as amended), the Sharia Court of Appeal Law and the Rules; Islamic (Civil) Law both substantive and procedural and the Area Courts Edict of 1968 (as amended in various States), The Lower Court was, in my view, acting within its limits.
On the second preliminary point i.e. whether there is a competent appeal before this court or not, it is necessary to determine this issue as well, as it lays the pivot for this application. The argument of learned counsel for the respondents is that there was no valid appeal before this court as the Notice of Appeal was filed out of time and that no leave for doing so was sought and granted by either the Lower Court or this Court. Leave from any of the two courts, he argued, was very necessary as the appeal was on a ruling of the lower court Learned counsel relied on section 223(1) and (2) of the Constitution and section 25 (2) of the Court of Appeal Act 1976.
In his reply, learned counsel for the applicants submitted that the import of section 223 (1) of the constitution is that an appeal whether on final or interlocutory decision of a Sharia Court of Appeal is appealable as of right without the necessity of asking for leave of court. He argued that both sections 223 (2) and 25(1) of the Constitution and of the Court of Appeal Act respectively, are worded in a general form whereas section 223(1) is specific and by rule of interpretation, the specific provision must prevail.
It appears that learned counsel for the applicants missed the point. The provisions of section 223(1) and (2) of the Constitution and section 25 of the Court of Appeal Act are very clear and unambiguous. Section 223 of the 1979 Constitution (as amended) states:
“223(1) An appeal shall lie from the decisions of the Sharia Court of Appeal of a State to the Federal 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 Federal Court of Appeal from the decision of a Sharia Court of Appeal conferred by this section
(b) Shall be exercised in accordance with any 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. (Italics supplied).
Section 25 of the Court of Appeal Act, 1976 (as amended) States as follows:
“25(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.”
Sub-section 2 of the section States:
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are;-
(a) in an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
There is no dispute from any of the parties that the present appeal arose from the ruling of the lower court of 9th December, 1996 (as borne by the record of appeal) exhibited to the application as annexure AI. From the heading and contents of that decision it is an interlocutory ruling. It is thus caught up properly by the above provision of section 25(2) (a) of the Court of Appeal Act. In order to satisfy the requirement of this provision, an applicant has to;
(a) apply for extension of time within which to seek for leave to appeal
(b) get the requisite leave to appeal and
(c) ask for extension of time within which to file his Notice of Appeal.
It was the submission of learned counsel for the respondents that there was no application before the Lower Court or before this Court in fulfilment of any of the above requirements. From the record of this appeal learned counsel’s submission cannot be faulted. It is true that no such application was ever filed by the applicants. The attitude of the Supreme Court and this court on the issue of respect for rules of court is quite clear. Rules of court are meant to be obeyed. see; Ezegbu v. F.A.T.E. Ltd (1992) 1 NWLR (Pt.216) 197, CCB (Nig.) Plc v. A.G. Anambra State (1992) 8 NWLR (Pt.261) 528.
It follows naturally that where an appellant/applicant fails, refuses or neglects to conform with laid down rules of procedure, he should not expect a favourable consideration of his appeal or application by the court. I am quick to add here that learned counsel for the applicants misconceived the import of section 223 especially sub-section (2)(b) which requires compliance with “rules of court for the time being in force regulating the powers, practice and procedure of the Federal Court of Appeal.” The provision of the Court of Appeal Act, 1976 (as amended) embodies the current law pertaining to the mode and manner of appealing to this court. I think it is common knowledge within the legal circle that filing of an appeal within the time stipulated by a statute or where time has been extended by a court for the filing or where leave of court is obtained for doing same, an appeal purported to be filed in violation of the statutory provision amounts to no appeal at all. I find support in the recent Supreme Court decision, per Belgore, JSC in Oruche v. C.O.P. (1997) 4 NWLR (Pt.497) 1 page 5 where it has been stated as follows:
“One of the cardinal principles of our judicial system is the rights to various stages of appeal. Though right of appeal is not always of right, all appeals are to be filed within the periods specified by the various substantive statutes and the constitution. Once a party has failed to appeal within the time stipulated in the statute, he should not be despondent, as he in certain cases can ask for enlargement of time within which to do so. But the court will only accede to this enlargement of time on disclosure of good and substantial reasons why the time specified within which to appeal has not been adhered to. Williams v. Hope Rising Voluntary Society (1982) 1 All NLR 1. The Court’s discretion will only be granted if it is clearly shown that the failure to appeal within time stipulated by law was not due to dilatoriness and deliberate non observance of certain procedure and it was not due to the fault of the appellant. Of course added to these is that the grounds of appeal are substantial and arguable in the light of the facts apparent on the record.”
In the present appeal, the situation is even worse; leave to appeal or extension of time within which to appeal or seek leave to appeal or extension of time to appeal as the case may be, was not obtained from either the lower court or this court. Now, granted that the misconception of learned counsel for the applicants that no leave was required before an interlocutory decision of the lower court be appealed against was correct, then, what stopped the applicants from asking for extension of time within which to file their appeal? That requirement too was not complied with.
Thus, from the sum total of what I have so far said, it is clear to me that there is no valid and subsisting appeal before this court. The practice of tying interlocutory applications to the substantive suits or appeals has for long been respected and applied by the courts. Where prima-facie, there is no competent suit or appeal subsisting, there cannot arise generally, interlocutory applications from the non-existing suit or appeal, see: Section 219 of the Constitution of the Federation 1979; Order 3 Rule 1 of the Court of Appeal Rules, 1981 (as amended) Macfoy v. UAC Ltd. (1961)3 All ER, 1169.
As there is no competent appeal before this court, the present application lacks competence and must collapse. Since the application is incompetent there is no point belabouring the issue of stay of proceeding before the lower court. Accordingly the application is hereby struck out for want of jurisdiction. The respondents are entitled to N1,500 costs.
Other Citations: (1997)LCN/0307(CA)
