Can a Judge Lawfully Shut The Courtroom Door?

CASE TITLE: ALABI V. BELLO LPELR-59030(CA)

JUDGMENT DATE: 17TH FEBURARY, 2022

JUSTICES: ALI ABUBAKAR BABANDI GUMEL, J.C.A.

MOHAMMED BABA IDRIS, J.C.A.

MOHAMMED DANJUMA, J.C.A.

DIVISION: SOKOTO

PRACTICE AREA: CONSTITUTIONAL LAW

FACTS:

This appeal borders on Constitutional Law.

This is an appeal against the judgment of the Sokoto State Shariah Court of Appeal.

The Appellant is the estranged wife of the Respondent. As a result of series of domestic squabbles which led to alleged domestic violence, cruelty and child abuse, the Respondent sued the Appellant before the Sharia Court, Wamakko on 27th July, 2017 in suit No. CV/75/2017 seeking for 3 reliefs which mainly involved an order for the return of the 2 children of the marriage and based on the allegation of the Respondent that the Appellant had abandoned the marriage and relocated herself and the children to Abuja, allegedly without the consent of the Respondent.

After series of submissions by respective learned counsel Mr. Abdul Rahman Abubakar for the Plaintiff/Respondent and Mr. Muhammad Adeleke for the Defendant/Appellant, the Shariah Court, Wamakko decided in favour of the Plaintiff/Respondent and ordered the Appellant to return the 2 children of the marriage, Muhammad Muhammad and Maryam Muhammad to the Respondent.

The Defendant, Appellant herein, was dissatisfied with the judgment of the Sharia Court Wamakko and she appealed to the Upper Sharia Court II, Sokoto in Appeal No: USC/11/SK/CV/07/2018. Without any hearing of the appeal, learned counsel Mr. Adeleke appeared before the Upper Sharia Court II, Sokoto and applied to withdraw it, purportedly on the instruction of the Appellant. The appeal was sequel to that withdrawal, dismissed and the Appellant was granted two weeks within which to appeal against the order dismissing her appeal.

The Appellant did not appeal but chose to apply, through another counsel Mr. Sahabi, for the relisting of her appeal. She also denied ever giving any instructions to Mr. Adeleke, of counsel to withdraw the appeal. The Upper Sharia Court listened to arguments of respective learned counsel to the parties on the application for the re-listing of the Appellant’s appeal and consequently dismissed it.

The Appellant was further dissatisfied with the above decision of the Upper Sharia Court II, Sokoto and she appealed to the Sokoto State Sharia Court of Appeal. After a full hearing, the Sharia Court of Appeal found against the Appellant and dismissed the appeal.

Still dissatisfied, the Appellant further appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal based on the following issue:

Whether the judgment of the lower Court (Sokoto State Shariah Court of Appeal) should be set aside and order for relisting of Appeal No. USC/11/SK/CVA/07/2018 be made before Upper Shariah Court II Sokoto when its apparent from Record of Appeal, the Appellant presented good and substantial reasons for relisting of such appeal.

COUNSEL SUBMISSIONS:

In arguing the lone issue for determination, learned counsel Mr. Sahabi for the Appellant began by emphasising that the Appellant made out a very strong case for the re-listing of her appeal when she presented good and substantial reasons before the Upper Sharia Court to warrant the lower Court to consider in her favour. Without any specificity learned counsel, Mr. Sahabi went on to refer to page 34 of the record of appeal. Further to this introductory background, Mr. Sahabi, of counsel added that it is trite that Under Islamic Law, once a case has not been determined finally, whether withdrawn by the party who instituted it or struck out by the Court suo motu, a party has every right to apply for it to be re–listed and determined on the merit. He buttressed and supported this assertion by the Islamic Law Text at page 286 of Vol. 2 of IKIDIL JAWAHIRUL SAMINA FI MAZAHIB AL ILMI MADINA.

While also referring to the reasons the lower Court gave for dismissing the appeal before it, as set out at page 65 of the record of appeal, learned counsel submitted that it was a total misconception for the lower Court to have decided as it did. In his attempt to set the record straight and to debunk the misconceived reasoning of the lower Court, Mr. Sahabi, of counsel once again referred to page 34 of the record of appeal and pointed out that the main reason presented by the Appellant upon which she sought for the re-listing of her appeal before the Upper Sharia Court, Sokoto was that her counsel then Adeleke withdrew the appeal without her consent because of some misunderstanding he had with her. Learned counsel added that it was not because that she denied Mr. Adeleke being her counsel at the material time but that he had no express authority to withdraw the appeal in the circumstances he did.

According to Mr. Sahabi, of counsel, it would have been judicial and judicious if the lower Court had acceded to the prayer of the Appellant for the re–listing of her appeal and for it to be determined on the merits and also in view of the fact that the dispute in the matter is not about the Appellant and the Respondent but about the future of the Children of their marriage. And while reproducing the Arabic text at page 1241 of the book IHKAMUL AHKAM – A short commentary of TUHFATUL HUKKAM, and which he translated to mean:- “That the women should be given more priority in the custody of children over men because women have more sympathy on the children than men”, learned counsel Mr. Sahabi urged on the Court to so hold and resolve the issue for determination in this appeal in favour of the Appellant as well as to allow the appeal and to set aside the judgment of the lower Court.

In his response, learned counsel Mr. Abubakar began by setting out what he considered to be the full perspective and fulcrum of the case of the Appellant being that she did not authorise her erstwhile counsel Mr. Adeleke to withdraw her appeal before the Upper Sharia  Court, Sokoto. Upon this parameter, Mr. Abubakar, of counsel went on to rely on page 35 of the record of appeal showing that Mr. Adeleke, of counsel physically appeared before the Upper Sharia Court, Sokoto, and in the presence of the Appellant strongly maintained that it was the Appellant that instructed him to withdraw the appeal. According to learned counsel Mr. Abubakar, because the Appellant never disowned or denied Mr. Adeleke as her counsel, he had the ostensible authority to act on her behalf and whatever he did in pursuance of that authority binds her as his principal. Learned counsel maintained that the Appellant cannot turn around to allege that he acted without her authority, instruction or knowledge. Learned counsel added that though a counsel may even be debriefed but his already executed acts in his capacity as counsel cannot be impeached. Learned counsel sought to rely on the case of AFEGBAI V. ATT. GEN. OF EDO STATE & ORS (2001) LPELR 193 at 41 – 42. He also quoted very extensively from the judgment per Karibi – Whyte, JSC. on the duty of counsel to offer the best professional service to his client until his authority is withdrawn.

Against the backdrop of the above decision, learned counsel remarked that having admitted that she appointed Mr. Adeleke to act as her counsel, and he claimed to have acted in that capacity, it is otiose for the Appellant to turn around and allege that he acted without her instruction. Learned counsel referred to the action in Suit No. SS/FHR/01/2018 as a possible reason that necessitated the withdrawal of the appeal before Upper Sharia Court, Sokoto. Also, according to learned counsel the principles governing legal representations are well known to Islamic Law and is the same with the common law principle that the action of a duly appointed agent within the scope of his appointment are binding on his principal. He supported this suggestion by referring to the case of KARIMATU YAKUBU & ANOR V. YAKUBU PAIKO (2014) 2 SQLR (PT. 1) 174 as well as page 65 of AHKAMUL HAKAM.

While conceding that it is correct under Islamic law that where a matter has not been decided on the merit it can be re–opened at any time to enable a party to it to call for the case to be decided on the merits, learned counsel Mr. Abubakar argued that the circumstances in the instant appeal do not allow for the application of this principle because the appeal of the Appellant was not struck out for want of prosecution but upon an application for same to be dismissed by her counsel.

DECISION/HELD:

The appeal was allowed.

RATIO:

CONSTITUTIONAL LAW- RIGHT OF ACCESS TO COURT: Whether the right to approach the Court can be denied or curtailed by the Court

The right of a Nigerian citizen to have access to the Courts for the determination of their rights and obligations is sacrosanct, subject to the rules of practice and procedure of the Courts. To that extent the Appellant must be allowed a reasonable access to the Courts to fully ventilate her grievance and protect what she believed to be the right of her biological children. The conflicting interests of the Appellant and her husband in a lawful, valid and subsisting marriage must be resolved in that behalf on the merits.

The dictum of Bowen, LJ in CROPPER V. SMITH (1884) 26 Ch. D. 700 at 710 – 711 which was adopted by Madarikan, JSC in Chief OJAH OJAH & ORS. V. CHIEF EYO OGBONI & ORS (1976) LPLER – 2366 at 10 – 11 is also applicable in this appeal that: –

“I think it is well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights…. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice on the other party….” Per GUMEL, J.C.A.

To read the full judgment or similar judgments, subscribe to Prime or Primsol