The Proper Constitution of a Shari’a Court: Whether It Suffices for One Judge to Sit Alone or with Two Other Members:The Supreme Court case of Katsayel v. Abdullahi (2026) 12 NWLR (Pt. 2053) 1.
The facts of this case orbits around an inheritance dispute, something many families can relate to. It involves sisters and their brother. The dispute traces its historical paternity to the year 2006. Upon the demise of their father called Abdullahi, wherein he left five children, four daughters and one male, with what appeared to be a straightforward inheritance, as there were four farmlands and a house. Among the children were Hafsatu and Sa’ida, and their younger brother, Auwalu Abdullahi.
The sisters, more specifically the two mentioned above, maintained that all four farmlands and the house formed part of their late father’s estate and ought to be distributed among them in accordance with Islamic law. Their younger brother, though, agreed, but partially, as according to him, it’s the house and two farmlands that belonged to their late father, the remaining two farmlands belonged exclusively to him, having been gifted to him by their father during his lifetime.
That assertion however, changed everything. These two sisters vehemently rejected the claim. They were like, “How can that be possible? Why are we not aware of the gift? Shouldn’t our father have told us at least about it? How can we now believe you? And in a bid to ensure everything was distributed in due fidelity with Islamic law of inheritance principles, they consequently instituted an action before the Shari’a Court, Katsina State, seeking the distribution of all the inherited properties.
Trial began on 7th July, 2006.Throughout the proceedings, Auwalu, their brother, stood firmly like Aso Rock, by his story. He insisted that the two disputed farmlands were validly gifted to him before their father’s demise. Evidence and witnesses were tendered and called by both the feuding parties. The trial court judge even took the extra effort to visit the farmlands and the house, something which in law we call “Locus in quo”, where the judge pays a visit to the disputed property, especially in land matters. After carefully evaluating the evidence, at the end of the day, however, the court found that the alleged gift was never established by credible evidence. It is an elementary position of the law under the common law that needs no citation of a section or a case that he who asserts must prove. That applies mutatis mutandis even under Islamic law. What happens where a person fails to prove a claim? Certainly, he has himself to blame, as judgment will not be in his favour, unfortunately, that’s certainly what happened. He was unable to prove the gift, therefore on 23rd August, 2006, the Shari’a Court held that all four farmlands and the house formed part of the deceased’s estate ditto ordered that they be distributed among all the heirs accordingly.
Expectedly, the sisters left the courtroom with smiles on their faces, and what do you expect? Of course they would. They had succeeded. It was actually worth being happy about. Two lands are huge, imagine the distribution without them.
Auwalu certainly was not happy. I don’t expect him to be. I am sure you wouldn’t either. According to him, the trial court had erred, and instead of disobeying the sacred judgment, he did what every litigant aggrieved with the decision of a court is expected to do, which is appeal. He appealed to the Upper Shari’a Court, Daura. On 11th June, 2007, the Upper Shari’a Court dismissed the appeal and affirmed the decision of the trial court. Still dissatisfied, he proceeded to the Shari’a Court of Appeal, Katsina State. Once again, fortune refused to smile on him.
On 21st August, 2007, the Shari’a Court of Appeal equally dismissed his appeal consequently affirmed the concurrent decisions of the two lower courts, hook, line, and sinker.
At this point, one would naturally think the matter had finally come to an end. Three courts against you? Of course you will feel like giving up. They are three different courts speaking with one voice.
But litigation, as lawyers often say, is full of surprises. Auwalu refused to give up. He approached the Court of Appeal, Kaduna Division. Now, this is where the case assumed an entirely different dimension.
Interestingly, the Court of Appeal did not concern itself with whether the alleged gift was proved or not. Rather, it noticed something much more fundamental. Jurisdiction, the heartbeat and lifeblood of every court; in the absence of it, the court will be lifeless.
The court observed that section 4(1) of the Shari’a Court Law of Katsina State, 2000, provides that: “A Shari’a Court shall properly be constituted if presided over by an Alkali [Judge] sitting with two members.”
It’s upon a panoramic examination of this Almighty provision catalogued supra, vis-à-vis a due consultation with the spinal cord of the appeal, that’s the record of proceedings, the Court of Appeal found that although all three members appeared during the first sitting, the subsequent proceedings and judgment did not sufficiently show that the complete panel sat throughout the hearing. Put bluntly, the record of proceedings showed that at the first sitting, as required by section 4(1), the Alkali and two others sat, but in subsequent sittings till judgment, it was only the Alkali that continued to sit. This finding changed everything. On 24th September, 2020, the Court of Appeal, without an atom of doubt, nullified the hitherto entire proceedings. Put differently, the Court of Appeal allowed the appeal, set aside the judgments of the three lower courts, and ordered that the matter be tried “denovo” (afresh) before the Upper Shari’a Court.
Imagine the disappointment of the sisters. After successfully defending the case before three different courts, they suddenly found themselves back to square one. Should they abide by that? Certainly, you don’t expect them to, after all, there’s still a more superior court, the Supreme Court, the last hope of the common man, they call it, so they opted to approach the Supreme Court rather than going back, hoping to restore the judgments earlier delivered in their favour by the three courts.
This is where the appeal became particularly interesting. Nota bene, the sisters are now the appellants, and their brother is the respondent. The appellants, in a bid to abort the appeal in limine, argued that the two members contemplated under section 4(1) merely assisted the Alkali and did not function as judges. Consequently, according to them, the absence of their presence, assuming they were absent, or their signatures or endorsements on the judgment, could not invalidate the proceedings.At first glance, the argument sounded persuasive.
But can the argument safe the said suit of nearly twenty (20) years from being sent back to square one?
The Supreme Court, per Ibrahim Mohammed Musa Saulawa, J.S.C., who delivered the leading judgment, started by reiterating the ageless settled principle in Madukolu v. Nkemdilim that before any court can validly exercise jurisdiction, it must first be properly constituted in terms of both the qualification and the number of persons required by law.
The court held that the language of section 4(1) is plain and admits of no ambiguity.
The law requires an Alkali sitting with two members.
Nothing in the provision suggests that the two members are optional or that they merely serve as assessors. The Supreme Court further emphasized that courts are not permitted to import words into a statute which the legislature deliberately omitted. After all, courts are not legislatures and, as such, cannot smuggle a word that’s not ab initio there. They are just to interpret the existing words. Accordingly, since the record failed to establish that the complete statutory quorum sat throughout the proceedings, the trial court lacked the competence to adjudicate the matter. Without jurisdiction, everything done thereafter collapsed like a house built on a faulty foundation. The appeal therefore failed in toto. The judgment of the Court of Appeal ordering a retrial was firma terra in law and was therefore accorded an undiluted affirmation for not disclosing any ounce of hostility that would magnet or warrant the reprobation of the Supreme Court.
All the other Justices, M. L. Garba, J.S.C., the presiding Justice, Tukur, J.S.C., Idris, J.S.C., concurred and adopted the same reasoning, except Abiru, J.S.C.
Without prejudice, it is said that most often the finest Justices dissented. So the story did not end there. Abiru, J.S.C., delivered a powerful dissenting opinion. His Lordship, while citing legion of judicial authorities, lucidly evinced that appellate courts dealing with proceedings from Shari’a Courts ought to focus more on substance than technical form. They are not courts of record like the High Court. As such, there shouldn’t be expectation of strict adhering to strict procedure or technical rules. His Lordship painstakingly, with his prey eagle judicial eye, examined both the Hausa and English versions of the record and concluded that the proceedings substantially showed the participation of the two members throughout the hearing. In his view, the omission complained of was insufficient to invalidate proceedings that had otherwise achieved substantial justice, and accordingly he set aside the judgment of the Court of Appeal and affirmed that of the three courts. However, in the eyes of the law, or in the light of the doctrine of stare decisis, the net effect of my Lord’s dissenting view is that, it is not law, as it goes with no binding effect, because just as in any deliberative body, the majority have it. In the instant case, the decision was by a majority of four Justices against one.
In the light of the above lucid juridical survey, it’s apropos to conclude that had His Lordship’s opinion commanded the majority, the litigation would have ended there and then.
Unfortunately for the sisters, it did not. Nearly twenty (20) years after the dispute first arose in 2006, the parties were once again back where they started, probably preparing for another trial. Lastly, this decision once again reminds us that jurisdiction remains the lifeblood of every judicial proceeding. A court may painstakingly evaluate evidence, correctly apply the law, and even reach the right conclusion. Yet, where it lacks the legal competence to sit, every effort becomes legally worthless. Whether one agrees with the majority or finds the dissenting view of Abiru, J.S.C., more appealing, one lesson remains constant: once the law prescribes how a thing should be done, that requirement is not a mere “technicality.” Take them lightly at your own peril, as it may later cost you a lot specifically if it borders on issue of jurisdiction; Jurisdiction the very foundation upon which the entire proceedings stand. And on this, I say no more.
______________________________________________
Isah Bala Garba is a Level 400 student of Common and Islamic Law and a Senior Advocate of Bayero University, Kano,(SABUK).He has authored numerous legal articles and analyzed many cases in clear, plain language. He can be reached for comments or corrections on: LinkedIn: https://www.linkedin.com/in/isah-bala-garba-301983276 isahbalagarba05@gmail.com or on 08100129131.