By Hameed Ajibola Jimoh Esq.

The issue of the jurisdiction of the Sharia Courts in Nigeria for those courts that have established same has sometimes, generated some legal arguments while some persons and or lawyers with due respect to them, think that the jurisdiction of Sharia courts or in any case, the Sharia Court of Appeal is limited to Islamic Personal Law Matters, I am of the respectful contrary view that the jurisdiction of the Sharia Court is not limited by the matters mentioned in for instance, section 262(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution or section 277(2) of the Constitution, hence this paper.

In my humble view, with due respect, the same section 262 (1) and 277 (1) of the Constitution respectively provides for a clause ‘in addition to…’. For instance, section 262 (1) of the Constitution makes the jurisdiction of the Sharia Court of Appeal of the FCT-Abuja to be ‘in addition to’ such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law, meaning that the lists mentioned in the section 262(2) of the Constitution is not exhaustive rather it is in addition to any additional jurisdiction that the National Assembly may by law confer on the Sharia Court of Appeal. The similar provisions have been made under section 277(1) of the Constitution which provides that ‘277.—(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate 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’. This ‘in addition to…’ in my humble view, can also be interpreted to mean that such jurisdiction may be original or appellate or supervisory that the National Assembly might in addition confer on those Sharia courts or the State House of Assembly as the case might be. For the purpose of emphasis, those listed Islamic personal laws under section 262 (1) and (2) and 277(1) and (2) of the Constitution respectively are as follows:

‘262.—(1) The Sharia Court of Appeal shall, in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law.

(2) For the purposes of subsection (1) of this section, the Sharia court of Appeal shall be competent to decide—

(a) any question of Islamic personal law regarding a marriage concluded in accordance with 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 the guardianship of an infant ;

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

(c) any question of Islamic Personal law regarding a 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 hears the case in the first instance to determine, that case in accordance with Islamic personal law, any other question.’. See also section: 277(1) and (2) of the Constitution

The Court has in the case of Ajomale v Yaduat (No.1) (1991) NWLR (Pt.191), stated how jurisdiction of a court of law is derived thus:

‘It is well settled that in this country, the exercise of all original and appellate/ supervisory jurisdiction is statutorily derivable from either (a) the 1979 Constitution (b) from a particular statute. These are the only sources from which jurisdiction is derived’. (Underlining is mine for emphasis). This judicial decision is important to refer to as proceedings without jurisdiction is a nullity no matter how well conducted. See: Elabanjo v. Dawodu (2006) LPELR – 1106 (SC); Dalyop v. State (2013) LPELR – 21898 (CA). Kayode Eso J.S.C. (of blessed memory) also held in the case of A.G. Lagos State v. Dosunmu (1989) LPELR – 3154 (SC) as follows:

“It is futile to set down issues, deliberate on evidence led, resolve points of law raised, if the court that is seized of the matter is devoid of jurisdiction. The substratum of a court is no doubt jurisdiction. Without it, the ‘labourers’ therein, that is both litigants and counsel on the one hand and the Judge on the other hand, labour in vain.’. The Supreme Court, per Aderemi J.S.C. further defined jurisdiction in the case of F.B.N Plc v. Abraham [2008] 18 NWLR (Part 1118) 172 as “the authority by which a court has to decide matters that are laid before it for litigation or to take cognizance of matters presented in a formal way for its decision.” Ejiwunmi J.S.C. also referred to a lack of jurisdiction as “injustice to the law, to the court and to the parties” Olutola v. University of Ilorin (2004) LPELR – 2632 (SC). The bottom line is that everything done in want of jurisdiction is a nullity. See: Adetona v. Igele General Enterprises Ltd. (2011) LPELR – 159. Four factors have also been set down by the Supreme Court in the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 as the ingredients of jurisdiction. They are:

‘The court must be properly constituted as to its number or its membership;

Any condition precedent to its exercise of jurisdiction must have been fulfilled;

The subject matter of the case must be within its jurisdiction; and

The case or matter must have been brought to the court by the due process of the law.’

Finally, it is my humble belief that it is now clear that the jurisdiction of Sharia Courts listed in section 262(2) and 277(2) of the Constitution are not exhaustive rather are in addition to any additional jurisdiction that the National Assembly (for the FCT-Abuja) or the House of Assembly of a State that has established Sharia Court shall confer on such courts whether original or appellate or supervisory or all. Therefore, in my humble view, the words ‘Sharia Court of Appeal’ are just a mere nomenclature which does not restrict the powers of the legislators to confer any additional jurisdiction on those courts- whether original: criminal or general civil or Islamic personal or Islamic criminal or other English law jurisdiction on those courts.

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