Moreso, appellate Courts hearing appeals from Customary Courts are enjoined not to interfere with their findings except where grave miscarriage of justice has occurred on the face of the record of proceedings and the conclusion of the Customary Court is patently perverse. In ONWUAMA V. EZEKOLI (2002) 5 NWLR (pt. 760) at 365 paras D – F, this Court, per Uwaifo, JSC, held that:
"It has also been argued that the evidence led by the respondents was not satisfactory. It must be remembered that this case was tried in a Customary Court where pleadings are unknown. The proceedings in such Court are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties. In other words, appellate Courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all abort so as to determine whether substantial justice has been done to the parties within the procedure permitted by such Courts. See DINSEY V. OSSEY (1939) 5 WACA 177, JUMAI ALHAJI ZARIA v. YAR MAITUWO (1966) NMLR 66, IKPANG V. EDOHO (1978) 6 – 7 SC. 221, IBERO V. UMEOHANA (1993) 2 NWLR (pt. 277) 510, CHUKWUEKE V. OKORONKWO (1999) 1 NWLR (pt.587) 410, DURU V. ONWUMELU (2001) 18 NWLR (pt. 746) 672."
Secondly, the trial Court being a Customary Court is given greater latitude in the conduct of proceedings. The Court proceedings persist inspite of its scanty regard to rules of evidence and procedure. The Court is not given to technicalities, a laxity which otherwise renders such decision open to interference on appeal. Customary Courts are in place to do substantial justice between litigants at little costs and time. The lower Court is therefore right to have found the appellate High Court's judgment that failed to be guided by these overriding and time honoured principles unsustainable. In Dinsey and Ors V. Ossei & Ors (1939) 5 WACA 177, the West African Court of Appeal restated the principle thus:-
"It is a principle well established in these Courts, that, in dealing with appeals from Native tribunals, this Court must not be too strict in regard to matters of procedure, that the whole object of such a trial is that the real dispute between the parties should be adjudicated upon and, as is said in the judgment in Archie Kwow V. Ohene Essein Eku II (2 WACA 180) the real issue between the parties must be the test and not merely the wording of the suit."
After citing the foregoing decision with approval, this Court per Uwaifo JSC proceeded in Ownuana V. Ezekoli(2002) 5 NWLR (Pt.760) at 365 as follows:-
"The proceedings in such Court(s) are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties... appellate Court are to consider the substance of the proceedings of Native customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure by such Courts."
Pursuant to this provision, a Sharia Court of Appeal was established in Jigawa State.
The jurisdiction of the Court is as provided in Section 277 of the Constitution, which provides;
“277 – (1) 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 provisions of Subsection (2) of this Section. (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 proceedings 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.” Before pronouncing on the jurisdiction of the lower Court, let me make my foundation with the decision of the Supreme Court in ROSSEK & ORS Vs.
ACB LTD & ORS (1993) 8 NWLR (Pt. 312) 3821 (1993) LPELR – 2955 (SC) Per Uwais, JSC (as he then was) later CJN: “It is settled law that a previous decision of any division of the Court of Appeal is binding on all the Justices of that Court.” PER MUSALE, J.C.A.
In order to appreciate and fully understand the provision of Section 277 (2) (c) of the 1999 Constitution as amended, where succession or inheritance has been made part of the jurisdiction of the Sharia Court of Appeal, it is apposite to reproduce the relevant/requisite Section and Sub-section accordingly.
It provides and I quote: “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. (2) For the purposes of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent to decide – 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.” In FARANSI Vs.
NOMA (2007) 10 NWLR (Pt. 1041) 21, Sanusi, JCA (as he then was) later JSC explained the jurisdiction of the Sharia Court of Appeal thus: “the well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia Courts (as they are now being named or called in some States adopting Sharia Legal System) the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjudicate under the provision of S. 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
See the case of GARBA Vs. DOGONYARO (1991) 1 NWLR (Pt. 165) 102; USMAN Vs. KAREEM (1995) 2 NWLR (Pt. 379) 537; MAGAJI Vs. MATARI (2000) 8 NWLR (Pt. 670) 72 and MAIDA Vs. MODU (2000) 4 NWLR (Pt. 651) 99.” PER MUSALE, JC.A THE POSITION OF LAW ON THE REASONS FOR SETTING ASIDE DECISION OF A LOWER COURT ON APPEAL UNDER ISLAMIC LAW
…the Court per Onnoghen, JSC (as he then was) held, inter alia, at page 472 A-B, 473-474 A-B, as follows: “It is therefore very clear that before the appellate jurisdiction of either Court (Customary Court of Appeal of a State and the Court of Appeal) can be properly invoked by an aggrieved party to any civil proceedings, the question(s) for determination by the appellate Court must relate to Customary Law in contradistinction to English or Common Law or any other system of law other than Customary Law of the state concerned.
It follows therefore that any appeal by any party to either of the said appellate Courts, the grounds of which or question for determination of which is not based on Customary law is incompetent ab initio.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
In Ohai v. Akpoemonye (1999)1 SC, 96, (1999) 1 NWLR (pt. 588) 521 Ogundare, JSC (of blesses memory) restated the law that– “For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a state, therefore, it must relate:- (a) To a question of customary law, and/or; (b) Such other matters as may be prescribed by an Act of the National Assembly. “ His Lordship, referred to the definition of customary law by Elias, CJN in Zaidan v.
Mohssen (1973) 11 SC, 21 as: “Any system or law not being the common law and not being a law enacted by any competent legislative in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.” MOHAMMED LAWAL GARBA, J.S.C.