By: ADEGOKE, Taiye Vincent
The provision for the establishment of the Sharia Court of Appeal of a State by the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been criticized amongst other things as being without a solid foundation. A Sharia Court of Appeal in a State that has no Sharia Court of first instance may be inconceivable. To equate it with the High Court is unsuitable. The constitution gives the Sharia Court an appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law: thus to think of an appeal court without a court of first instance where an appeal will come from is apparently incomplete. This article seeks to critically examine this lacuna in the provision and suggest workable solutions accordingly.
There shall be for any State that requires it a Sharia Court of Appeal for that State.
The above is the constitutional provision for the establishment of Sharia Courts of Appeal in Nigeria. The Sharia Court of Appeal of a State is of equal coordinate jurisdiction with the High Court of the State. It is part of the courts of superior records as highlighted in that section of the constitution. Thus, it is well recognised by the constitution. Similarly, as noted above, the constitution of the Federal Republic of Nigeria in Section 275 provides for the establishment of the Sharia Court of Appeal of a State.
The appointment, membership, jurisdiction, power and constitution are also provided for in that section. The makers of the constitution however did not make provision for a Sharia Court of first instance which is the bone of contention in this study. Thus, how valid is the provision of Section 275 without a provision for the Sharia Court of first instance? This will be discussed critically in this article.
Section 275(2) provides that the Sharia Court of Appeal of a State shall consist of:
- A Grand kadi of the Sharia Court of Appeal; and
- Such number of kadis of the Sharia Court of Appeal as prescribed by the House of Assembly of the State.
In the light of the provision of Section 275(1), a State must require a Sharia Court of Appeal before it is made available to it. But how does a State having no Sharia Court of first instance require a Sharia Court of Appeal? Where does the appeal come from? For example, in the case of the High Court of a State, it can entertain both criminal and civil matters in its original and appellate jurisdiction. Hence, an appeal can lie to the High Court of a State from, for instance, the Magistrate Court.
This article also focuses on the provision of Section 276(3). The sub-section states that:
A person shall not be qualified to hold office as a Kadi of the Sharia Court of Appeal of a State unless:
- He is a legal practitioner in Nigeria and must have been so qualified for not less than a period of ten years
- Has attended and has obtained a recognised qualification in Islamic law from an institution approved to the National Judicial Council, and
- He has either a considerable experience in the practice of Islamic law
- He is a distinguished scholar of Islamic law.
By virtue of the above provision, it can be inferred that even if a person is not a legal practitioner but has obtained certain Islamic qualifications, he can become a Kadi. This may be not too good for the Nigerian Legal System, as a novice in the craft and art of law should not be allowed to the bench.
Note also that the appointment of a person to the office of the Grand Kadi requires confirmation by the House of Assembly of the State while that of a Kadi of the Sharia Court of Appeal does not.
Another section that calls for attention has to do with the section dealing with Jurisdiction and Power of the Sharia Court of Appeal. Section 277(1) states that:
The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law on which the court is competent to decide in accordance with sub-section two of this section.
Such matters according to sub-section 2 include questions regarding Islamic marriage, guardianship of children (infant), maintenance of the physically or mentally infirm, the dissolution of properties, wills, succession, gift, wakf and so on. However, it is apparent from the wordings of the sub-section that the words ‘such appellate and supervisory jurisdiction’ imply that the clear intention of the legislature is to make the Sharia Court of Appeal of a State completely an appeal court.
By so doing, it would mean that it cannot entertain those matters listed in sub-section 2(a)-(e) at first instance. If this is so, which courts would entertain them? Suffice to note that the High Courts of the States are reluctant to entertain matters of Islamic personal law; declaring themselves as lacking in jurisdiction. The result of this is to leave many muslim litigants seeking remedy without one.
The area of confusion in the establishment of the Sharia Court of Appeal of a State is further evident in its having a coordinate jurisdiction with the High Court of a State. This can be seen from the similarities in the sections providing for the Sharia Court of Appeal and the sections dealing with the High Courts. Section 278 provides that for the purpose of effectively performing the jurisdiction conferred upon it by the constitution and any other laws, a Sharia Court of Appeal to be properly constituted must consist of at least three (3) Kadis of the court.
This section no doubt creates further confusion as to whether the Sharia Court of Appeal is a court of first instance , or an appeal court or both. Remember that in the High Court only one judge is required to sit on a case, whereas the constitution requires that at least three kadis sit in the Sharia Court of Appeal for it to be properly constituted. This is an obvious indication that the court is not a court of first instance, and ought not to have been equated with the High Court. It is at best an appellate court. An appellate court with no solid and well organised court of first instance.
Conclusion and Recommendation
In conclusion, the establishment of the Sharia Court of Appeal of a State as contained in Section 275 of the constitution is a vehicle without a wheel. It seems to be a confusion in itself. The establishment of such court with an appellate jurisdiction expressly conferred upon it, without a proper court of first instance is not commendable.
This is moreso in most parts of Southern Nigeria where most States have no Sharia Court of first instance or its equivalent to deal with matters of Islamic personal law. In such States, many litigants who seek redress on matters relating to Islamic law are mostly left unattended to. Thus, the provision of Section 275(1) will be meaningless.
It is hereby recommended that there is an urgent need to amend the constitution so as to make provision for a Sharia Court of first instance. These courts will handle cases dealing with muslim personal live like marriage, succession, will, wakf, custody of children, estate management and so on. This will clearly define and give meaning to the appellate jurisdiction intended to be served by the Sharia Court of Appeal of a State.
About the Author
Adegoke Taiye Vincent B.A. (Ife), LL.B (Ibadan) is a First Class graduate of law from the University of Ibadan, Nigeria. He also holds a degree in History and International Relations (Combined Honours) from the prestigious Obafemi Awolowo University, Ile-Ife, where he finished with a Second Class Honours (Upper Division). This article is edited by Adegoke Kehinde Victor B.A. (Ife), LL.B (Ibadan), also a First Class graduate of law from the University of Ibadan.
You may contact the author through the following addresses:
Phone Number: +234 803 236 7927 or +234 708 018 1494
 Adegoke Taiye Vincent is a First Class graduate of law from the premier University of Ibadan
 Section 275(1) 1999 Constitution of the Federal Republic of Nigeria, Cap 23 L.F.N. 2004 (as amended)
 Section 6(5)
 Section 272(1) & (2).
 Section 276(1) & (2).
 See Section 6. Onyia v. State (2008) 18 NWLR (Pt. 1118) 142; Agala v. Egwere (2010) All FWLR (Pt. 532) 1609; Obiuweubi v. CBN (2011) All FWLR (Pt. 575) 208.
 See and compare Section 275-276 (for Sharia Court of Appeal) and Section 270-271(for High Court).
 Section 270.