Appraisal of the Constitutionality of Section 22 (3) of Customary Court Law of Lagos State (2011)

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By Olasupo Jubril Adedimeji

The stability of a state depends on the level of justice rendered. Justice cannot come to light when the weapon of the dispensation of Justice is in the wrong hands. The Constitution has stipulated the ways to attain justice, which should be strictly followed to avoid a miscarriage of justice.

The consequence of placing jurisdiction on a court of law not consistent with the Constitution is a dangerous step and a stepping-stone to the destruction of the legal system. The Constitution is clear and precise on the appropriate court to adjudicate over a particular. This is because of the competence and reliability of personnel in such a court.

Under this circumstance, specialisation is seen to be appreciated. Hence, for a better dispensation of justice in a democratic society based on the dictate of the law, the wordings of the Constitution should be adequately respected and adhered to.

This paper appraises the concept of Constitutional supremacy. It also notes that the constitution is a strong statute that jealously protects its supremacy and detests any rivalry by declaring any competing provision void through the court, to the extent of its inconsistency. Also, it considers the validity and constitutionality of section 22(3) of the Customary Court law of Lagos State, 2011.

Furthermore, it examines the issue of who presides over Islamic personal law. Ultimately, the work recommends that the Lagos State House of Assembly should kindly subscribe to section 275 (1) of the Constitution, which provides that:

There shall be for any state that requires it, a Sharia Court of Appeal for that State.
This is needed. The law should be applied appropriately for better effective and efficient dispensation of Justice.

Supremacy of the constitution
Section 1 (1) of the 1999 Constitution of Nigeria provides that: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

The legal implication of this provision is that the constitution has conferred on itself the exclusive powers on all actions, duties, functions, and the outcome of the actions, duties, and functions of all persons (whether natural or artificial), institutions, and authorities within the personal, special and territorial jurisdiction of Nigeria.

The exclusive power of the Constitution is big and extensive. Thus, every power in Nigeria is it the legislative, executive, or judicial gets its root from the sovereign (the people) through the Constitution enacted by virtue of section 14 (2) (a), which expressly provides that: “Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority.”

In the case of A.G Abia State v A.G of the Federation per Tobi JSC juristically said:
“The constitution of the nation is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In the Greek language, it is the alpha and omega. It is the barometer with which all statutes are measured. In line with the kingly position of the constitution; all the three arms of the government are slaves of the constitution; not in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the constitution over and above every statute, be it an act of the National assembly or a law of the house assembly of a state.”

Kayode Eso JSC in the case of Kalu v Odili also gives testament to the supremacy of the Constitution when he held: “It is both a fundamental and elementary principle of our laws that the constitution is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions, and persons throughout the country. All other laws derive their force and authority from the Constitution.

The Constitution is a mighty statute that jealously protects its supremacy and detests any rivalry as regards supremacy and won’t also hesitate to declare the competing provision void through the court, to the extent of its inconsistent with it by virtue of section 1 (3), which provides that: If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Per Fabiyi JSC in the case of P.D.P v C.P.C affirmed this when he held that:
“The constitution is the grundnorm, otherwise known as the basic norm from which all other laws of the society derive their validity. Each legal norm of the society derives its validity from the basic norm. Any other law that is in conflict with the provision of the Constitution must give way or abate.”
Juristic look at the validity of section 22 (3) of the customary court Law

Section 22 (3) provides that the commission may designate a court to adjudicate on Islamic law and matters in relation to marriage, divorce, custody, and inheritance as it deems fit. This provision enacted by the Lagos State House of Assembly in 2011 is in total conflict with section 277 (1) and (2) of the Constitution. For the sake of clarification, section 277 (1) and (2) provide that: (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 appellant and supervisory jurisdiction in a civil proceeding involving questions of Islamic personal law, which the court is competent to decide in accordance with the provision of subsection (2) of this section.
(2) For the purpose 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 marriage, including the validity or dissolution of that marriage, or regarding a family relationship, a foundling or guardianship of an infant;

(c) Any question of Islamic 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 that the court that hears the case in the first instance to determine that case in accordance with the Islamic personal law, any other question.

It is clear from the above provisions that the Constitution has covered the field of Islamic law and matters in relation to marriage, divorce, custody, and inheritance through section 277 (1) and (2), which vested a mandatory jurisdiction on the Sharia Court of Appeal of a state to adjudicate on with the use of “shall”. With this in existence, it will be a slap to the supremacy of the Constitution for a customary court to adjudicate over matters mandatorily vested on the Sharia Court of Appeal of a state and as such, the provision that vested power on the customary court to adjudicate over the same matter can’t stand and it is by no stretch of imagination invalid and unconstitutional to the extent of the inconsistency with the Constitution. In the case of Ochala v F.R.N, the Supreme Court held that: “By virtue of section 1 (3), Constitution of the Federal Republic of Nigeria, 1999, if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and such other law to the extent of the inconsistency be void.”

Thus, it is highly recommended that section 22 (3) of the Customary Court law of Lagos State, 2011 be struck out, using the blue pencil rule from the Customary Court law of Lagos State, 2011.

The legal best man for the job

Islamic personal law matters needs a knowledgeable scholar to preside on it due to its strict nature, which can only be well presided on by a person specialized in it and not a person that have a rudimentary knowledge of it. It is in this regard that the Constitution provides for the qualification of a person that can adjudicate over such matters for the sake of fairness and equity by virtue of section 276 (3). This section provides that:
(3) A person shall not be qualified to hold office as a Kadi of the Sharia Court of Appeal of a State unless –

a) He is a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years and has obtained a recognized qualification in Islamic law from an institution acceptable to the National Judicial Council; or

(b) He has attended and obtained a recognized qualification in Islamic law from an institution approved by the National Judicial Council and has held the qualification for a period of not less than ten years; and

(i) He either has considerable experience in the practice of Islamic law, or

(ii) He is a distinguished scholar of Islamic law.

Also, it has been decided that Islamic law is different from customary law and it shouldn’t be seen by mistake that they are both the same. In the case of Alhaji Alkamawa v Bello & Anor per Wali JSC held that: “Islamic law is not same as customary law as it does not belong to any particular tribe, it is a complete system of universal law most certain and permanent and more universal than common law.”

Islam also affirms this legal standpoint as established in the Holy Quran where Almighty Allah says in Quran 45 verse 18: “Then we put you, O Muhammed, on an ordained way concerning the matter of religion, so follow it and do not follow the inclination of those who do not know.”

This is clear evidence that Islamic law is not related to the Customary Law, as it is directly from Allah’s commandment given to mankind to guide their conduct and serve as a guide in all their endeavours. Thus, it is a divine law with no iota of man-made law in it unlike the customary law, which has an attribute of man-made law therein.

With due respect, it is erroneous to vest jurisdiction of Islamic law and matters in relation to marriage, divorce, custody, and inheritance on customary court, when the court still has laws from different communities that is subject to change. It is imperative to state that when appeal about Islamic law matters rise from the Customary Court, the Customary Court of Appeal of Lagos State can not entertain it because it has no constitutional jurisdiction to preside over it by virtue of section 282 (1), which provides that: (1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.

Conclusion and recommendation
It has been established that the wordings in Section 22 (3) of the Customary Court law of Lagos State, 2011 are inconsistent with Section 277 (1) and (2) of the 1999 Constitution, which has provided for all that is stated in Section 22 (3) of the Customary Court law of Lagos State, 2011. Hence, such provision has entered into a war of supremacy with the Constitution, which will always prevail anytime this kind of situation arises. It has also been argued that the Constitution clearly provides for the qualifications and competence of persons that will preside Islamic matters.

It will be unfavourable to the legal system to give the duty of a professional to someone with limited knowledge of it. If Lagos State House of Assembly wants a court to adjudicate on Islamic law and matters in relation to marriage, divorce, custody, and inheritance, to avoid a miscarriage of justice and reassure Lagosians of a well-conducted case, then it should enact a Sharia Court of Appeal of Lagos State in accordance with the provisions of section 275 (1) of the 1999 Constitution.

Adedimeji is a 300 level law student of the Lagos State University (LASU), Ojo.

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