INTRODUCTION:

It is beyond peradventure that issues bordering on Islamic personal law cum disposition of will and distribution of estate is within the exclusive preserve of the shariah court of Appeal.

The conferment of jurisdiction to the shariah court of Appeal to deal with issues bordering on Islamic personal law is a constitutional question which appears to be sacrosanct, as against the backdrop of the state High court usurping the jurisdiction of the shariah court of Appeal.

The establishment and and jurisdiction of the shariah court of Appeal can be summarily be reproduced below, for clarity of thought and flow of logic;

Section 275(1) of the 1999 constitution provides as follows :

there shall be for any state that desires it a shariah court of Appeal for that state-;

Sub(2): the shariah court of Appeal of the state shall consist of-;

a. Grand khadi of the shariah court of Appeal;
And

b. Such number of khadis of the shariah court of Appeal as maybe prescribed by the House of Assembly of the state.

By way of analysis, the above purports underscored the needs for states predominantly dominated by Muslims or States having some reasonable degree of Muslims’ population to create a shariah court of Appeal in order to distribute and dispose estates and wills in the context of Islamic personal law in conformity with the sacrosanct provisions of section 277 of the 1999 constitution.

As a means of giving credence and much regards to the principles of Islamic personal law , owing to their uniqueness and attendant complexities , the constitution laid down some convenient though somewhat strict criteria for the appointment of persons to the office of khadi; this is not disconnected to the fact , shariah laws are unique, universal and complex, only persons of sound knowledge of the rudiments can successfully apply them.

In justifying the candid requirements for the appointment of persons to the office of khadi; section 276 of the 1999 constitution generally provides as follows:

Sub(1)-

“The appointment of persons to the office of Grand khadi of the shariah court of Appeal of a state shall be made by the Governor of the state on the recommendation of the national judicial council, subject to confirmation of such appointment by the House of Assembly of the state;

Sub(2)- equally though with slight difference went further to provide as follows:

” the appointment of a person to the office of a khadi of the shariah court of Appeal shall be made by the Governor of the state on the recommendation of the national judicial council;

With respect to qualification for appointment, sub-(3) addressed it as follows:

” a person shall not be qualified to hold the office as a khadi of the shariah court of Appeal unless-

a. He is a legal practitioner in Nigeria and has been so qualified for a period not less than ten years and has obtained a recognized qualification in Islamic law from an institution acceptable to the national judicial council ; or

b. He has attended and has obtained a recognized qualification in Islamic law from an institution approved by the national judicial council and has held the qualification for a period not less than ten years; and

¡. He either has considerable experience in the practice of Islamic law or ;

¡¡. He is a distinguished scholar of Islamic law.

The above persons clearly paint a portrait on what a shariah court of Appeal is and what it ought to be. Particularly, with regards to the nature of the appointment, persons qualified to be appointed and its actual attendant features not otherwise.

Now, turning to jurisdiction of the shariah court of Appeal, section 277 has elaborately espoused the length and breadth of the the jurisdiction of the shariah court of Appeal, It can conveniently be seen hereunder; section 277(1) provides:

” the shariah court of Appeal of a state shall, in addition to such other jurisdiction as maybe conferred upon it by the law of the state exercise such appellate jurisdiction and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the court is competent to decide in accordance with the provisions of subsection 2 of this section…”

While subsection 2 of this section clearly reads as follows :

” for the purpose of subsection 1 of this section, the shariah court of Appeal shall be competent to decide -:

(a)Any question of Islamic personal law regarding a marriage concluded in accordance of that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or guardianship of an infant;

(b) where all the parties to the proceedings are Muslims , any question of Islamic personal law, regarding a marriage, including the validity or dissolution of that marriage or regarding family relationship or foundling or the guardianship of an infant;

(c) Any question of Islamic personal law regarding wakf, gift, will or succession, where the endower, donor, testator, or deceased person is a Muslim;

(d) Any question of Islamic personal law regarding an infant, prodigal, or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm ; or

(e) where all the parties to the proceedings being Muslims have requested the court that heard the case in the first instance to determine the case in accordance with Islamic personal law, any other question.

In this wise, it is no longer a recondite issue of law that the jurisdiction of the shariah court of Appeal is strictly restricted to issues bordering on Islamic personal law, being an Islamic-base or shariah- wise court.

By contrast, the High court of a state which appears to be a court sharing some level of concurrency with the shariah court of Appeal is not an islamic- based or shariah – wise court with the requisite jurisdiction to hear questions of Islamic personal law. Hence, it was never the intention of the framers of the constitution to have posited that the both courts ( shariah court of Appeal & state High court) should be placed on equal pedestal in areas of competence.

For ease of reference and clearer emphasis, the jurisdiction of the state High court can be conveniently reproduced below in the light of the constitutional provisions backing it; Section 272(1) provides:

” subject to the provisions of section 251 and other provisions to this constitution, the High court of a state shall have jurisdiction to hear and determine any civil proceedings in which the existence or the extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person;

Sub-2 the reference to civil or criminal proceedings in this section includes a reference to the proceedings which originates in the High court of a state and those which are brought before the High court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction;

Sub-3 subject to the provisions of section 251 and other provisions of this constitution, the Federal High court shall have the jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a state, Governor or deputy Governor has ceased or become vacant.

From the foregoing provisions, it is unarguably clear that the High court of a state doesn’t fall within the dint and purports of section 277 of the 1999 constitution in which the power to hear and determine cases of Islamic personal law is conferred.

It is now unfortunately, become an order of the day that most of the states in the southwest didn’t make provisions for this, that’s creating shariah court and shariah court of Appeal to deal with Islamic personal law cases. This ugly trend has over the years served as a clog in the wheel and advancement of Islamic jurisprudence in Nigeria.

These States are somewhat Muslims- dominated, like: Ogun, Lagos, Ekiti, Ondo. It is not an excuse because the constitution says:

” a state that desires it “.

Of course, since there are substantial number of Muslims, they ought to create shariah courts and shariah courts of Appeal in order to accommodate their islamic related grievances in compliance with section 277 of the 1999 constitution.

The strange trend of Muslim parties consenting to submit their cases of Islamic personal law to the High court to hear and determine same is a fundamental constitutional question which cannot be compromised or waived, parties to a suit don’t have the right to donate jurisdiction to the Court where same is lacking.

This nerve- aching issue was succinctly addressed by Tobi JSC of blessed memory ( as He then was) in Mobil producing Nig unlimited Vs Monokpo (2003)18 pt. 852 @ 342; my Lord puts the law thus;

” jurisdiction Is the threshold of judicial proceedings, it can’t be compromised or waived. Parties to a suit doesn’t have the legal right to donate jurisdiction to a court, absence of jurisdiction is irreparable at law..”

This position has been over flogged by plethora of judicial authorities, amongst which are:

Ukey Vs Skenconsult (1981)LPELR- S.C -50 /1980, Modukolu Vs Nkemdilli (1962) 2 SCNLR -341.

In fact, by way of analysis, the Supreme court in Gafar Vs Government of Kwara State (2007) All FWLR (pt. 360) p. 1415@ 1440, it was held thus:

” courts are creatures of statute based on the constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no court assumes jurisdiction except it is statutorily prescribed, as jurisdiction cannot be implied nor can it be conferred by agreement of the parties.
The case of Tukur Vs Government of Gongola (1989) LPELR- S.C 196/87, is equally instructive.

Now, putting High court of a state and Shariah court of Appeal on the same pedestal is radically a constitutional sin though considering them on equal footing based hierarchy of courts is absolutely right.

The court of Appeal in another breath while analyzing the length and breadth of the jurisdiction of both courts( The High Court & Shariah Court of Appeal) in Sale Vs Mohammed ( 2005) FWLR (pt. 256) p. 766@ 777; laid the matter to rest in the following remarks:

” the shariah court of Appeal to the exclusion of High court of a State has jurisdiction on Islamic personal law of succession and gift..”

It is in the humble light of the foregoing, that the High court of the State has no jurisdiction to hear and determine Islamic personal cases, particularly, distribution of estate and disposition of will under Islamic personal law, notwithstanding the agreement of the Muslim parties submitting their matters to the High court.

The jurisdiction of the shariah court of Appeal has been contemplated by the constitution to be exclusive in matters of Islamic personal law .

The crux of the matter to be determined at this point is whether the constitutional contemplation of jurisdiction of the Shariah court of Appeal can be compromised or waived at the altar of any extant law or agreement of the parties thereto?

The answer in this respect, is in the negative , reason being that no any law or legislation can stand the Supremacy of the constitution, let alone the agreement of the parties;

the constitution being
the supreme law of the land, the alpha and omega, the barometer upon which all statutes are measured, the fons et origo of the land; as succinctly captured in section 1(3) of the 1999 constitution.

this was equally the observations made by Tobi JSC ( of blessed memory) as He then was in A.G ABIA VS A.G FED. ( 2002) 4. S.C ( pt. 1) No. 2.

This position was equally made in a clearer tone by the then CJN, per MUHAMMAD, JSC ( rtd) as He then was in SARAKI Vs FRN 2016) 3 NWLR (Pt. 1500) 531; puts the strictly in this sense:

” wherever and whenever the constitution speaks any other law must remain silent..”

On this wicket, it can safely be submitted that the High court of a state has no original, supervisory or Appellate jurisdiction to hear and determine Islamic personal law cases.
Therefore, any distribution of estate or disposition of will made by a state High court purporting to be under Islamic personal law is null and void, nugatory, invalid, illegal, unconstitutional, based on speculations not law;

The effect of null and void was considered by the court of Appeal in Ishola Vs Ajiboye (1998)1NWLR (532)71 at 79; in the following terms:

“Where an act or decision is declared null and void, it is meant to say that the act or decision binds no one and in any circumstance”.

Per Ogundare JSC equally made the same observations in Adefulu & Ors Vs Okulaja & Ors (1996)- LPELR – 90 S.C, in the following remarks:

” Null and Void means that which binds no one or is incapable of giving rise to any right or obligation under any circumstances or that which is of no effect..”

CONCLUSION:

Flowing from the above analyses spiced with relevant constitutional and judicial authorities, it is not in dispute that the trend of allowing a state High court to deal with matters exclusively reserved within the purview & precinct of the Shariah Court of Appeal is unconstitutional and illegal. Hence, the effect of such distributed estate or disposed is null and void, of no effect, it binds no one, whatsoever.

RECOMMENDATION:

It then became imperative to draw the attention of those States in the southwest, particularly: Ogun, Ondo, Lagos & Ekiti States to create Shariah Courts and Shariah Courts of Appeal, for convenient, expedient, fair and smooth distribution and disposition of estate under Islamic personal law. This practice of making resort to the High court of a state on Islamic personal law cases has over the years contributed substantially in stifling the advancement of Islamic jurisprudence in Nigeria.

It is incumbent on the government, Muslim scholars, clerics and concerned Muslims to converge and draw workable modalities on which this burning religious issue can be addressed and achieved; as opposed to making recourse to the High court of a state to negligently and carelessly handle the issues.

The condition of having learned persons in Islamic law and creating shariah- wise courts to deal with such matters can’t by any stretch of imagination be comprised at the altar of whatever factor. It is indeed, inherently imperative.

By heeding to this, it will create a fair environment where principles of Islamic personal law will gain ground, thereby thriving and permeating through the cores of our lives tremendously.

This is written by: Rilwan saidu Salihu, a final year law student of Bayero University, kano.
He can be reached through: 08135966752
[email protected].