Court Ruling: Sharia Court of Appeal struck out application citing lack of jurisdiction to try a dead person, says “dead person is not a legal person” – full text.

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The Sharia Court of Appeal, Federal Capital Territory, Abuja, Holden at Gudu on the 19th day of September, 2019 has struck out an application by Abdulrahman Obaje, in an appeal SCA/FCT/M/50/2019 between ABDULRAHMAN ADEJOH OBAJE(Applicant) AND HAFSAT URANE YUSUF(Respondent) on the ground that the matter lack proper parties, citing, “dead person is not a legal person”.

In the ruling, the court submits that the counsel to the Respondent, Barrister Adesoji S. Lawal, “Submit that the applicant has failed woefully to establish valid ground why the application should be granted. Therefore, Counsel urge the Court to refuse the application. Counsel to the Respondent raised other issues why the application should be refused. push({}); Submit that the Respondent is a dead person, hence this Honourable Court has no jurisdiction to try a dead person. That this is certain in paragraphs 16 of Applicant’s affidavit.”

Full Text:

RULING WRITTEN AND DELIVERED BY JUSTICE MOMODU DIRISU HON. KADI 1

THIS IS A MOTION ON NOTICE BROUGHT IN PURSUANT TO ORDER 4 RULE 1 AND 3 OF THE SHARIA COURT APPEAL RULES 1960 SECTION 6 OF THE CONSTITUTION OF THE FEDERAL REPBULIC OF NIGERIA 1999 (AS AMENDED) AND UNDER THE INHERENT JURISDICTION OF THE HONORABLE COURT.

Moving the motion, counsel to the applicant states that the motion is praying this Honorable Court for the following four (4) reliefs:

  1. AN ORDER for enlargement of time within which the Appellant/Applicant shall appeal against part of the decision contained in the judgement of the FCT Upper Area Court sitting in Karu- Abuja by the Hon. Judge Ibrahim Usman Waliyyulah, dated 20/1/2016.
  2. AN ORDER Granting leave to the Appelant/Applicant to file notice/grounds of appeal out of time against the decision contained in the judgment of the FCT Upper Area Court sitting in Karu- Abuja by the Hon. Judge Ibrahim Usman Waliyyulah, dated 20/1/2016.
  3. AN ORDER deeming the Notice/Grounds of Appeal filed herewith out of time as properly filed and served, necessary fee having duly paid.
  4. Any other or further orders as this Honorable Court may deem fit to make in the circumstance.

Counsel, submit that the application is supported by 24 paragraph affidavit and they rely on all the paragraphs particularly paragraphs 9, 15 and 19. They also relied on all the Exhibits attached. Submit that there was a domestic arrangement between the applicant and the Respondent. The Applicant was to bring food instead of money. They had to appeal since settlement has broken down.

Counsel to the Respondent Submit that they filed a counter-affidavit of nine paragraphs. They rely on all the depositions. They also filed a written address. They adopt the written address as their oral submission. They urge the court to dismiss the application with heavy cost.

Submit that the applicant has failed woefully to establish valid ground why the application should be granted. Therefore, Counsel urge the Court to refuse the application. Counsel to the Respondent raised other issues why the application should be refused. Submit that the Respondent is a dead person, hence this Honourable Court has no jurisdiction to try a dead person. That this is certain in paragraphs 16 of Applicant’s affidavit.

Finally urge the Court to refuse the application with special cost.

We have painstakingly, considered the materials put before us by the Applicant and the Respondent. We shall raise a sole issue for the determination of this Court. The issue is if it is ascertained that the Respondent is a dead person, whether this Honourable Court has the jurisdiction to entertain this application.

The parties in this application are Abdulrahman Adejoh Obaje as applicant and Hafsat Urane Yusuf as the Respondent.

As to who is the Respondent, we shall have recourse to paragraph 2 of the Counter-Affidavit filed by one Sarat Ojoma Yusuf. I hereby reproduce the averment.

“That sometime in late 2018, I was served with an application for the extention of time to appeal/judgment delivered by Upper Area Court, Karu in CV/17/13 between Hafsat Urane Yusuf V. Abdur Rahman Adejoh Obaje amongst other prayers as well as a Notice of Appeal.

In support of these paragraph 2 of the counter-affidavit in the submission by Counsel to the Respondent that Hafsat Urane Yusuf is a dead person. This fact were not controverted by the Counsel to the Appellant. It is trite that facts admitted need no further prove. Therefore we hold that the Respondent in this application is a dead person.

In our legal jurisprudence, one of the conditions to be satisfied before a Court can assume a jurisdiction to entertain a matter is that there must be proper parties before the court. In the instant application there are no proper parties before the Court because a dead person is not a legal person.

As the situation to be taken when situation like this arose, we refer to the case of Momodu V. Momh (1991)1 N.W.L.R part 169, page 618 Parah. The Supreme Court has this to say:

“The 1st Appellants interest in the appeal is not in doubt but it is futile and academic for the dispute in the claim to be pursuant and determined in his absence that is when he is more alive, since he was personally to be the beneficiary. See also the case of GREEN V. GREEN V. (1987)3 N.W.L.R (part 6) 480 at pp 492.

We are bound by the Supreme Court decision. Since the Respondent is no longer a live, it become an academic exercise to proceed with this application, as proper parties are not before the Court. This has robbed this Honorable Court the jurisdiction to entertain this application. Consequently, application is struck out.

While reacting to the ruling, Abdulrahman said that, “We are grateful for the wisdom of the Sharia Court of Appeal in handling the matter,”

“The upper area Court sitting at Karu is fully aware of my earning of roughly #15,000:00k monthly basic salary that is not even regular.”

“And I have to also be paying school fees for 3 children including the child for which child maintenance is sought for (which I have been paying) and to also cater for a family of four (4) within the ambit of this irregular #15,000:00k monthly basic salary.” “As I couldn’t cope with the payment of the #10,000:00k monthly child maintenance, we have had domestic arrangement for me to be bringing food item which I have been doing until after the death of my late ex-wife, Hafsat Urane Yusuf on 10th October, 2017 when that arrangement broke down. That is why we are at the Sharia Court of Appeal at this time. We will be taking the next step of action in due course, and my utmost and revered appreciation goes to their Lordships for their wisdom in handling the matter again.” Obaje concluded.

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