Dajo Bello V. Ali Usman (1998)
LawGlobal-Hub Lead Judgment Report
SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of the Sharia Court of Appeal of Taraba State of Nigeria sitting at Jalingo. The respondent herein Ali Usman was the plaintiff before the Civil Area Court Zing wherein he sued the defendant Dajo Bello, claiming twenty five (25) cows from him as a reward for rearing 105 cows belonging to the appellant. According to the respondent, the appellant entrusted some cows to him for rearing. He then called the son of the appellant who testified as plaintiff witness one. His evidence was to the effect that the appellant sent him to the respondent to collect certain cows. The respondent, according to the PW1, handed over those cows still with him to the PW1. who brought them to the appellant.
The appellant, after denying the claim of the respondent, agreed that he engaged the respondent for rearing his cows some ten years ago. And that he paid compensation to the respondent covering the period of five years at the rate of one cow per five months. He agreed that he has not paid such compensation for the remaining five years.
At the end of the trial the learned Area Court Judge held that since there was no sufficient evidence from both parties oath shall be offered to any party to supplement the evidence already given. He then offered oath first to the appellant who was the defendant at the trial court of which he declined. The said oath was shifted to the respondent, who was then the plaintiff, who also declined to subscribe
to the oath. That being the case, the trial court held, it was proved that the respondent has reared the said cattle for the appellant for ten years and that the appellant paid to the respondent only three cows instead of twenty five (25) cows as mutually agreed by the parties. He then ordered that the appellant should give twenty two (22) cows to the respondent as the balance of compensation within two weeks from 12/3/93.
Aggrieved by the above decision the appellant lodged an appeal in the Upper Area Court Jalingo and filed five ground as follows:.
(a) That the trial court did not properly investigate this matter.
(b) The trial court did nut allow the appellant to call his witnesses;
(c) That the oath offered to the respondent is not heard of and therefore he did nut understand same.
That the trial court collected the sum of three thousand naira (N3.000.00) from him as alleged filing fees: and
The Upper Area Court should properly determine the issues involved and order a retrial.
The Upper Area Court reviewed the record of the trial court and held that the appeal succeeds and allowed same. It was of the view that the wrong procedure of Islamic Law was employed by the trial court and that there was no basis for asking the appellant then to take oath. He then allowed the defendant to swear in rebuttal and when this oath was subscribed to the claim of the respondent was dismissed.
Being dissatisfied with the above decision the respondent herein successful appealed to the Shari a Court of Appeal, hereinafter called court below. The decision of the Upper Area Court was set aside and that of the trial court restored with certain variations namely the appellant was ordered to pay the respondent as a reward of rearing his cattle, twenty heads of cow instead of twenty three as ordered by the Upper Area Court.
The appellant, who was the defendant at the trial court, in turn, appealed to this court and filed a notice of appeal containing one single ground on jurisdiction thus:-
“All the decision of the trial Area Court and the Upper Area Court and Sharia Court of Appeal are a nullity since the trial Area Court has no jurisdiction to entertain the case, and the Sharia Court of Appeal erred in law in not striking out the case.”
Particulars
(a) Since the appellant who was the defendant before the trial court resides in Tola in Adamawa State, the respondent ought to have filed the suit in the Area Court having jurisdiction in Adamawa State and not in Zing Area Court in Taraba State, by virtue of section 19(2)(a) and (b) of the Area Court Edict, 1968.
(b) Since the claim is for 25 cows, the claim was clearly beyond the jurisdiction of the trial Area Court by virtue of the first schedule of the Area Court Edict since the monetary value of the property will be above ten thousand naira.
The appellant, who was the defendant engaged the services of counsel while the respondent appeared in person. Appellants brief was filed on 2/11/93 and it contains one issue thus:-
“…Whether the trial Area Court had jurisdiction to entertain the suit having regard to the fact that the appellant resides at Binyeri Tola, a village in Adamawa State which is outside the area or jurisdiction of Zing Area Court in Taraba State and also having regard to the large number of cows involved viz-a-viz the limited nature of the trial court’s jurisdiction.”
The appellant who was the defendant at the trial Area Court Zing in Tarabu State has not been residing there. Instead the appellant at the time of instituting the action was ordinarily residing at a village Binyeri Tala in Adamawa State. This is born out of the records of proceeding of all the lower courts. That being the case, learned counsel for the appellant built up the following arguments on pp. 1-3 of this briefs thus;-
He contended that the trial court had no jurisdiction to entertain the respondents suit for two major reasons:-
(a) In the first plea the appellant (defendant) resides in Binyeri – Tola, a village in Mayo Balwa Local Government Area in Adamawa State whereas the trial Area Court is in Zing, a town in Zing Local Government of Taraba State.
(b) The civil summon issued against the appellant shows that he resides at Binyeri Tola. (See page III of the record).
It is common knowledge that in 1991 the two states Adamawa and Taraba States were carved out from defunct Gongola State. The action was instituted at Zing Area Court in Taraba State on 12/3/93. See p.1 of the record of proceedings.
From the records the defendant now appellant has been staying with his family and doing his business at Binyeri Tola in Adamawa State. There is evidence, which has not been challenged, that the appellant at the time of the transaction was also residing at Tola in Adamawa State. The appellant therefore, in a legal parlance “ordinarily resident at Tola in Adamawa State.” Section 19(2)(a) 2(b) of the Area Court Edict, 1968 as amended favours instituting of an action when: the defendant/appellant was residing normally. The provisions of the Edict supra read:-
19(2) “All civil causes or matters other than land causes shall he tried and determined by an Area Court which has jurisdiction over the area:
(a) in which the defendant is ordinarily resident or
(b) in which the defendant was at the time when cause of action Arose.”
(italics mine for emphasis)
It is to be noted that throughout the proceedings of the trial Area Court Zing. Upper Area Court Jalingo and Shari a Court of Appeal Taraba State none of the parties, including the appellant, raised the issue of jurisdiction. Can this posture militate against raising the issue of jurisdiction of the trial court and subsequent courts? My attitude to this pauser is to say a big “No”. This is because the issue of jurisdiction is radical and goes to the root and foundation of adjudication.
nothing therefore, can prevent any party in the matter from raising same.
This court at this appellate stage can even raise the issue of jurisdiction suo motu where there are sufficient facts in the records establishing want of jurisdiction or competence in the court – Odiase v. Agho (1972) 1 All NLR (Part I) p. 170.
In other words, it goes without saying, and it is fast becoming trite that this issue of jurisdiction is very fundamental to the due adjudication. It can therefore be raised at any time, and at any stage of the proceedings and at any court for the first time – even at the Supreme Court for the first time. It was lucidly stated somewhere that the issue of jurisdiction can be raised for the first time in the trial court or in the Court of Appeal or even in the Supreme Court and by any of the parties or by the court itself suo motu.” See Olariade v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Part 2) p. 193. See also Akegbeja v. Ataga (1998) 1 NWLR (Part 534) p. 459 at pp. 468; 469 and p. 469 paragraph 9 per Rowland J.C.A.Applying the law as enunciated and declared above to the facts of the appeal at hand I find nothing wrong in the situation where learned counsel for the appellant raising, at this stage, the issue of the trial court’s jurisdiction in his brief. He is perfectly right and in order. It is stated times without number, that the issue of jurisdiction is so radical that it forms the foundation or pivot of adjudication. If a court lacks jurisdiction, it also lacks the necessary competence to try the case at all.
A defect in competence is fatal, for the proceeding’s are null and void ab initio.
However well conducted and well decided they may otherwise be. A defect in competence is extrinsic to adjudication. The court must first of all be competent, that is, having jurisdiction before it can proceed on any adjudication – Madukolu and ors v. Nkemdilim (1961) 1 SCNLR 341 See Akegbejo v. Ataga (1998) 1 NWLR (Part 534) p. 459/468 per Mohammed JCA.
Coming to the crucial issue of whether the trial court sitting at Zing in Taraba State could have jurisdiction and competence over the defendant/appellant who at the time of the action, ordinarily resident at Tola in Adamawa State. Jurisdiction of courts normally is territorial. That being the case, where a matter or cause was supposed or ought to have been brought in one state was brought in another state, the jurisdiction of the court in the wrong state must be us if it has not existed. In that situation parties’ agreement or consent cannot confer on the court the jurisdiction it has not possessed – Onyema v. Oputa (1987) 3 NWLR (Part 60) 259 and I.K. Martins (Nig.) Lid v. U.P.L. (1992) 1 NWLR (Part 217) p. 322.
Having considered the evidence, though scanty and skimpy, I hold that the suit ought to have been instituted against the appellant as defendant at Tola in Maya Balwa in Adamawa State of Nigeria. The trial court in Zing in Taraba State is a wrong court. That fact effectively stripped and disrobed the trial area court or its jurisdiction. In other words, there is a feature in the case which prevents that court from exercising its jurisdiction which finally renders its decision null and void.
The subsequent decision of the Upper Area Court Jalingo and the Sharia Court of Appeal in their appellate capacity are also null and void. Lord Denning has this to say:-
“… If an’act is void, then it is, in law, a nullity. It is not only bad, but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
See U.A.C. v. Macfoy (1961) 3 All ER p. 1169 at 1172. See also the ease of Skenconsult (Nig.) Lid & anor v. Godwin Sekondy Ukey (1981) 1 SC p. 6; and Madukolu & on v. Nkemdilim supra per Bairmian FJ as he then was at pp. 587/594.
I do not intend to go into the second reason why the trial court should have no jurisdiction concerning the fact that the value of the twenty five cows is over and above the powers of the trial Area Court. This is to avoid plunging into the deep sea of speculation. There is no evidence as to the market value of each cow at the material time. The appellant did not tender the “warrant” of the particular Area Court Judge who presided in the court, which was duly issued and signed by the Chief Judge of Taraba State. This explains why I did not suo motu raise the issue of whether the claim of the appellant at the trial court is within the powers of the Shari a Court of Appeal. In other words, whether the claim of cows as rewards of rearing of 105 cows for certain period falls within the circumstances of section 242(2)(a)-(e) of the 1979 Constitution of the Federal Republic of Nigeria as amended as supported by the following cases:-
(1) Abuja v. Bizi (1989) NWLR (Part 119) p.120
(2) Tumfafi v. Moresno (1993) 1 NWLR (Part 269) 378,
(3) Garba v. Dogon Yam (1991) 1 NWLR (Part 165) p. 102; and
(4) Usman v. Kareem (1995) 2 NWLR (Part 379) p. 537 S/C.
My Lords, for all the reasons given above, I am of the view that this matter was supposed to have been filed in a court of competent jurisdiction in Adamawa State where the defendant/appellant is ordinarily resident. The action of the respondent is filing the case against the appellant at the Area Court Zing in Taraba State offended the provisions of s. 19(2)(a) & (b) of the Area Court Edict of 1968 applicable in that State. The Zing Area Court, is a wrong court. It is not a situation where the matter can be conveniently transferred to Adamawa State. The Zing Area Court lacked jurisdiction to entertain the cause ab initio. The subsequent hearing of the appeal by both Upper Area Court Jalingo and Sharia Court of Appeal Taraba State are also null and void.
The decision and orders of the court below are therefore set aside. Appeal is pregnant with a lot of merits and is hereby allowed. Eight hundred naira (N800.00) is awarded as costs to the appellant.
Appeal allowed.
Other Citations: (1998)LCN/0464(CA)
