Kurman Kurma V. Magadan Sani Sauwa (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the Court of Appeal (Sokoto Division) delivered on 16 March, 2016 wherein the Court ordered that the appeal be transferred to the appellate Division of the High Court Kebbi State for hearing. The course which the proceedings have taken, and the relevant facts shall now be set out.

The appellant as plaintiff sued the respondent (and his heirs) as defendant before a Sharia Court in Kebbi State for compensation for building a house for the defendant. On 16 July, 2013 the Sharia Court entered judgment as follows:

. Therefore, the Court has decided that they should pay him the sum of N30,000 for his structures if they fail to pay, then he should pay them N45,000 for the cost of their plot .

Aggrieved by this judgment, Mohammed Sani Sauwa, who was not a party in the trial Court filed an appeal. The appeal came before the Upper Sharia Court 1, Argungu. On 23 April, 2014 the Court entered judgment. It reads as follows:

“We the Judges of Upper Sharia Court I and Upper Sharia Court II what we have seen is there is

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no trial between Kurma and Moh’d Sani Sauwa. The Sharia Court Gulma said it did not conduct such trial.

In this regard there is nothing we can conduct, apart from directing Moh’d Sani Sauwa to seek for his right from Kurma. Or whoever he thinks he has right over the issue for the house. He should institute another case before the Court at Gulma over whatever he is claiming. Since the copy presented before us does not pertain to his case. We did nothing because none of the parties in the case appeal.

The appeal was dismissed. Now, the plaintiff before the trial Court filed an appeal, it was heard by the Sharia Court of Appeal, Kebbi State.

The respondent was the defendant in the trial Court. This Court affirmed the decision of the Upper Sharia Court. This is what the Court had to say:

. Based on the foregoing, we at the Sharia Court of Appeal Kebbi State, Argungu Division here affirm the decision of Upper Sharia Court, Argungu. The Court has decided that since the Court of Gulma said it did not conduct the trial between Kurman Kurma and Moh’d Sani Sauwa in this regard there is nothing for is to conduct but for Upper Sharia

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Court Argungu to direct Moh’d Sani Sauwa to seek for his right from Kurma or whoever he seems to have claim over.

Moh’d Sani Sauwa should institute another case before the present Judge of Sharia Court Gulma over whatever he is claiming. But since this copy of proceeding before us does not involve his case, Upper Sharia Court Argungu did not say anything over it because none of the parties to the trial filed an appeal. Once again the appeal was dismissed.”

The appellant lodged an appeal. It was heard by the Court of Appeal Sokoto Division. On 16 March, 2010, the Court of Appeal ordered that the appeal from Upper Sharia Court, Argungu be transferred to the appellate Division of the High Court Kebbi State for hearing.

Dissatisfied, the appellant filed a Notice of Appeal on 16 June, 2016, and on 27 September, 2016, learned Counsel for the appellant, Mr. H. Zakariyau filed the appellant’s brief.

Mrs. J.C. Anishere, learned counsel for the respondent’s filed the respondents brief on 9 November, 2016.

Learned counsel for the appellant formulated a sole issue for determination. It reads:

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Whether the provision of Section 277 of the 1999 Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal, Birnin-Kebbi in its judgment in appeal No. SCA/KBS/ARG/03/2014.Learned counsel for the respondent also formulated a sole issue for determination. It reads:

1. Whether the provision of Section 277 of the 1999 Constitution vests the Court of Appeal with jurisdiction over the subject matter in issue in the present appeal.At the hearing of the appeal on 8 October, 2018, learned counsel for the appellant, H. Zakariyau esq adopted the appellant’s brief filed on 27 September, 2016 and urged the Court to allow the appeal.

Learned counsel for the respondent, Mrs J.C. Anishere adopted the respondent’s brief filed on 9 November, 2016. She observed that the case should be transferred to the High Court of Kebbi State for hearing contending that the appeal should be dismissed.

I have read the briefs in detail and found that there is a fundamental point which both counsel overlooked and it is whether there is an appeal from the trial Sharia Court to the Upper Sharia Court 1 Argungu.

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In the trial Court the parties were Magadari Sanni Sauwa Plaintiff-and Kurman Kumla Defendant. The heirs of the plaintiff are 1. Hauwa. 2. Hadiza. 3. Fati. 4. Saratu. 5. Sa’idu.

The appeal from the trial Sharia Court to the Upper Sharia Court 1 was filed by Muhammed Sanni Sauwa. The Upper Sharia Court 1 quite correctly observed that the trial sharia Court did not conduct a trial between the appellant and Kumla Kumla and concluded that since none of the parties in the trial Sharia Court appealed, nothing could be done.

The position of the law is that when judgment is delivered by the trial Sharia Court on 16 July, 2013 and none of the parties appealed within the time prescribed for filling appeal, and none of the parties filed a motion for extension of time to appeal, it becomes clear that the parties/are satisfied with the judgment. The judgment of the trial Sharia Court is inviolate. The judgment is still alive and Linching on the parties.

None of the parties in the trial sharia Court appealed, rather, Mohammed Sani Sauwa, a complete stranger to the proceedings, who was not a party in the trial Court filed an appeal before the Upper Sharia Court 1, Argungu. This in effect means that

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there was no appeal from the judgment of the trial sharia Court. All subsequent appeals thereafter to the Sharia Court of Appeal and the Court of Appeal (Sokoto Division) are null and void since they are from a non-existent appeal. Counsel raised in their issues for determination how the provision of Section 277 of the Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal. In view of all that I have been saying especially the fundamental point that there is no appeal from the trial Court, considering whether the provision of Section 277 of the Constitution affects the procedural jurisdiction of the Kebbi State Sharia Court of Appeal, if considered would be an academic exercise. It has been said in a plethoria of cases that Courts are constituted to hear and determine live issues and not waste its time on issues which serve no purpose, and if decided never determine the rights or liabilities of the parties.See Oyeneye v Odugbesan (1972) 4 SC p .244, Nkwocha v Gov of Anambra State (1984) 1 SCNJS p.654, Bakare v ACB Ltd (1986) 3 NWLR (Pt.26) p. 47; Bhojwani v Bhojwani (1995) 6 NWLR (Pt. 457) p. 653

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Considering provisions of the Constitution on the procedural jurisdiction of an appeal when there is no appeal before the Appeal Court is a waste of precious judicial time. An academic exercise best reserved for some Lecture Hall and not a Court of Law.

It is for this reasoning that the appeal is allowed. The judgment of the Court of Appeal Sokoto Division is set aside. The judgment of the trial Court is restored since there is no appeal from that judgment.

SC.746/2016