Jurisdiction of the State High Court over Islamic Issue(s) between Muslims where Same Is not an Issue of Islamic Personal Law

CASE TITLE:                         ALHAJI LASISI IBIYEMI v. HRM OBA JIMOH ADEBISI OKUNADE & ORS (2022) LPELR-56636(CA)

JUDGMENT DATE:           21ST JANUARY, 2022

JUSTICES:                            RITA NOSAKHARE PEMU, JCA

JAMES GAMBO ABUNDAGA, JCA

YUSUF ALHAJI BASHIR, JCA

COURT DIVISION:            AKURE

PRACTICE AREA:               JURISDICTION- JURISDICTION OF THE STATE HIGH COURT

FACTS:

The Appellant (Alhaji Lasisi Ibiyemi), who was the 10th Plaintiff in the trial Court claimed that he was appointed as the Chief Imam of Obaagun Central Mosque on the 4th day of August, 2010, by the league of Imams, Ratibis and Alfas at the Central Mosque, Obaagun. The 2nd Respondent (Alhaji Abbas Shitu) also claimed that he was appointed as the Chief Imam of the Obaagun Central Mosque by the 1st Respondent (Oba of Obaagun) at the Oba’s palace on the 5th August, 2010.

As a result, the Appellant instituted an action in the Osun State High Court, Ikirun, challenging the appointment of the 2nd Respondent as the Chief Imam of Obaagun Central Mosque, wherein he sought for declaratory reliefs and perpetual injunctions.

Without hearing evidence from the parties, the trial Judge invited what he referred to as the “Sharia Panel of Osun State”, as amicus curie to assist the trial court in deciding the criteria for the appointment of a Chief Imam and to decide whether it had jurisdiction to adjudicate over the matter.

Subsequently, the trial Judge held that the Court had no jurisdiction to entertain the Appellant’s claim upon the advice of the “Sharia Panel” and some Amicus Curie. He proceeded to terminate the suit and made some pronouncements, one of which was the endorsement of the 2nd Respondent (Alhaji Abbas Shitu) as the Chief Imam of Obaagun.

Aggrieved, the Appellant appealed.

ISSUES FOR DETERMINATION:

The appeal was determined upon consideration of a sole issue thus:

“Whether or not the Lower Court has jurisdiction to entertain the case”

COUNSEL SUBMISSIONS

Learned Counsel to the Appellant submitted that jurisdiction is the pillar upon which an entire case stands. That the instant case is a matter where the civil rights and obligations of an individual have been trampled upon and are not related to Islamic Personal Law, therefore the trial court had jurisdiction to entertain the suit. However, assuming but not conceding that the trial Court had no jurisdiction to entertain the suit, that means that the same Court could not give ancillary orders after it had declined jurisdiction. That the trial court, therefore, had no jurisdiction to declare the 2nd Respondent as the Chief Imam of Obaagun after it had declined jurisdiction.

Learned Counsel for the 1st and 2nd Respondents submitted that in determining whether a court has jurisdiction to decide a case filed before it, the principal documents to be considered are the Writ of Summons and the Statement of Claim. That all the reliefs claimed in the Writ of Summon and the Statement of Claim centred on Islamic Law in relation to the position of Chief Imam of Obaagun Central Mosque.

Counsel further submitted that the subject matter of the case before the trial Court is therefore governed by Islamic Law and not by Common Law or Customary Law. That succession to the office of Chief Imam is a matter which falls within the ambit of Islamic Personal Law of the parties over which only the Sharia Court has jurisdiction to the exclusion of any other Court.

DECISION/HELD:

In the final analysis, the appeal was allowed and the decision of the trial Court was set aside. The Court ordered that the suit be remitted back to the Osun State High Court for a proper hearing before a different Judge.

RATIOS:

1. JURISDICTION- JURISDICTION OF THE STATE HIGH COURT: Whether the State High Court has jurisdiction over Islamic issue(s) between Muslims where same is not an issue of Islamic personal law

“Section 272(1) of the 1999 Constitution of the F.R.N. has conferred on the State High Court a very wide and often described as unlimited jurisdiction subject only to Section 251 and other provisions of the Constitution itself, apart from the items listed under Section 277(2) of the Constitution other items not mentioned therein are not matters of Islamic Personal Law, the High Court is quite empowered to entertain all matters concerning such questions except where the parties on their own requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law. See Section 277(2)(e). Then Islamic personal law will apply. In all other matters, however, the jurisdiction of the State High Court remains extant. BELGORE JSC IN ABULSALAM V. SALAWU held that: “The power of a Court cannot be vitiated merely because the matter concerns parties who are Muslims or a case is of Muslim law in so far as the matter is not of Islamic personal law.” The issue being contested in this case though between Muslims and Islamic Issues but because it is not on Islamic personal law the jurisdiction of the High Court to hear and determine the claim is not adversely affected. I, therefore, hold that the High Court of Osun State was rightly constituted to hear and determine the issues in this case.” Per BASHIR, J.C.A.

• JURISDICTION- JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the appointment of an Imam of a Mosque is a question of Islamic Personal Law over which the Sharia Court of Appeal can exercise jurisdiction

“I have earlier on recounted in this judgment the claim of the Plaintiff before the Trial Court as per the Writ of Summons. Clearly, the claims have absolutely nothing to do with the qualification for becoming a Chief Imam as will make it an Islamic personal question that will bring the dispute within the jurisdiction of the Sharia Court, rather the entire dispute from the Plaintiffs claim revolves squarely around the question of who between the Appellant and the 2nd Respondent was duly appointed the Chief Imam of Obaagun. The Learned Trial Judge conceded jurisdiction to the Sharia Court but the 1999 Constitution specifically Section 277 (1) conferred on the Sharia Court of Appeal a limited jurisdiction to wit: “The Sharia Court of Appeal of a State shall, in addition to such other 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 provision of subsection (2) of the Section.” It is very clear from the above that the 1999 Constitution did not confer original jurisdiction on the Sharia Court of Appeal to deal with the question of Islamic Personal Law as specified under subsection (2) of 272, so there is no provision for the Sharia Court to hear matters of Islamic Personal Law at first instance. The attention of this Court has not been drawn to the existence of such Courts in Osun State. I am unable to agree with counsel on the argument that the Sharia Court of Appeal in the appropriate Court to hear this case because the Sharia Court of Appeal is essentially an appellate Court. Section 277(2) defines what constitutes Islamic Personal Law to include: marriage, family relationship, guardianship of an infant, founding, gift or wakf, will or succession, prodigal or person of unsound mind or maintenance, and guardianship of a Muslim who is physically or mentally infirm. None of these subjects covers the appointment of an Imam of a Mosque, see Abdulsalam V. Salawu (2002) LPELR 30 (SC). The Supreme Court in this case dealt with the issue of the appointment of a Chief Imam to a Mosque; which subject is quite apposite and relevant to this appeal. I cannot see the distinction counsel to the Respondent is attempting to draw between these two cases.” Per BASHIR, J.C.A.