BUBA MAGAJI DANGI KATSIRA v. ALH. YALLIYA (2014)

BUBA MAGAJI DANGI KATSIRA v. ALH. YALLIYA

(2014)LCN/7514(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of November, 2014

CA/S/46S/2012

RATIO

COURT: JURISDICTION; JURISDICTION OF THE SHARIA COURT OF APPEAL

It is trite law that a Shariah Court of Appeal can only hear appeals in land disputes if it involves any question of Islamic personal law regarding Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim see MAGAJI V MATARI [2000] 8 NWLR (PT 670) 722 see also s.277(1)(2 a-e) of the 1999 Constitution.
In MAGAJI V MATARI (Supra) Mohammed JSC had this to say:
“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim” See also the decision of this court in CA/S/68S/2012 GIWA KUMU DABAI V MAUCHI WAWAN KWAMA delivered on 28/3/2014 where I held in delivery the judgment of this court thus; “The deceased person from whom the inheritance (land) devolved must be a Muslim for the Sharia Court of Appeal to have jurisdiction to adjudicate over the matter” See also MUSTAPHA V MOHAMMED & ANOR [2012] LPELR 7024″
In FARANSI V NOMA (2007) 10 NWLR (PT 1041) Abdullahi PCA (as he then was) had cause to consider the provision of Kebbi State Sharia (Administration of Justice) Law 2000 in the light of section 277 of the 1999 constitution thus:
“Before I go further, I think it will be of help for the purpose of clarity, to refer to the provision of section 277 of the 1999 Constitution as well as the provision of section 14 of the Kebbi State Sharia (Administration of Justice) law, 2000. Section 277 of the 1999 constitution provides as follows: “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 founding or the guardianship or 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. Section 14 of the Kebbi State Sharia (administration of justice) Law, 2000 provides as follows: “14. An appeal shall lie from the decision of the Upper Sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal” Now clearly, there is a problem here. Section 277(1) & (2) clearly talk of question of Islamic personal law as the area regarding which the Sharia Court of Appeal shall be competent to decide. It requires a little bit of due diligence to recognize that the provision of section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction both in civil and criminal matter to the Sharia Court of Appeal as being clearly in conflict with the provision of section 277 of the 1999 Constitution”
I have carefully looked at the claim of the plaintiff at the trial court. I am convinced it relates to land dispute and does not involve any question of Islamic person law regarding Wakf, gift, will or succession. Both parties to this appeal are ad idem on this. per. TUNDE O. AWOTOYE, J.C.A.

justice

PAUL A. GALINJE Justice of The Court of Appeal of Nigeria

AHMAD O. BELGORE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

BUBA MAGAJI DANGI KATSIRA – Appellant(s)

AND

ALH. YALLIYA – Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respectof the appeal against the decision of Shariah Court of Appeal Argungu Kebbi State which was delivered on 14/7/2011.

The statement of claim of the applicant at the Upper Sharia Court Gwandu read thus;

“I, Mudari Alh. Ladan is suing Buba Chade Katsira because I want him to give me my father’s (Muh’d Dangajere) farm. My father mortgaged the farm to his father – Magaji Danji. After the death of his father and the duration of the mortgage expired I requested him to give me my father’s farm but he refused. This is why I sued him so that the court will recover my farm for me”

After hearing the parties, the Upper Shariah Court Gwandu gave judgment in favour of the respondent.The appellant at the court below filed an appeal against the judgment of the Upper Shariah Court.

After hearing the appeal, the court below reversed the decision of the Upper Shariah Court and gave judgment by “confirming to Mudari her farm after failure of Buba to swear an Oath, while she swears. This is in accordance with the principles of Islamic Law”

Aggrieved by the decision of the Lower Court the appellant in this court on 19/11/2012 filed an amended Notice of Appeal containing 4 Grounds of Appeal which (leaving out the particulars) read thus:

“GROUND 1
The judgment of the Lower Court is against the weight of evidence.

GROUND 2
The Honourable Kadi’s erred in law when they assumed jurisdiction to try the suit which bordered on title to land.

GROUND 3
The Lower Court erred in law by its failure to strike out the case on grounds that the suit is statute barred.

GROUND 4
The Lower Court erred in law when they assumed jurisdiction to hear the appeal when the so-called appeal was filed by a total stranger as against the party who prosecuted the matter before the Upper Shariah Court (USC) Gwandu.

The appellant also seeks by way of relief an order of this Honourable Court setting aside the judgment of the Lower Court resolving the judgment of the USC Gwandu, or alternatively striking the suit on grounds of statute barred, or ordering a retrial before a High Court.

After transmission of record of appeal to this court, the appellant brief which was settled by Sulaiman Oji, appellant’s solicitor was filed on 3/3/14 but deemed filed on 20/10/2014.

The appellant’s solicitor formulated 3 issues for determination such as;

“a. Whether the SCA, Argungu is competent to entertain the appeal which bordered on declaration to title to a farm land?
b. Whether the suit was not statute barred.
c. Whether the appeal before the SCA, Argungu was competent when it was prosecuted by a total stranger who was not a party at the trial court?”

The Respondent’s brief or argument was settled by Ahmad Fingilla his solicitor.

It was filed on 30/5/13 but deemed filed on 11/6/2013. However, respondent’s counsel on 20/10/2014 withdrew the Respondent’s brief of argument and it was struck out.

Respondent’s counsel also conceded to the appeal.

This then leaves the appellant’s brief or argument only to be considered.
I have deeply considered the issues formulated by the appellants. I am of the respectful view that the essence of the issues is whether or not the lower court had jurisdiction to entertain the appeal. I shall view this appeal in the light of the above.

The appellant’s solicitor submitted in his brief that the suit at the trial court was a land claim seeking for a declaration of title to a farm land. He submitted that by virtue of s.277 (1)(2)(a-e) of the 1999 Constitution the jurisdiction of Shariah Court Appeal of States was restricted to exercise of supervisory or appellate jurisdiction in Civil Proceedings only involving questions of Islamic Personal Law.
He cited ADO V DIJE (1984) 5 NCLR 260 at 127; MADUKOLU V NKEMDILIM (1992) 1 ALL NLR 587. He urged the court to set aside the decision of the Lower Court and to restore that of the trial Upper Shariah Court or order a retrial of the Respondent’s appeal before the High Court sitting at Birnin Kebbi, Kebbi State.

I have deeply considered the submission of learned counsel for the appellant. Both parties agree that the lower court lacked jurisdiction to hear the appeal.

In the circumstance, I hold that this appeal has merit. It is hereby allowed.

The proceedings and judgment of the lower court Sharia Court of Appeal, Argungu Kebbi State are hereby set aside. The appeal of the Respondent to the lower court is hereby ordered to be transmitted to the High Court of Justice Kebbi State to be reassigned by the Hon. Chief Judge Kebbi State for re-hearing by the appellate division of the court in the State. Parties are to bear their respective costs.

PAUL A. GALINJE, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Awotoye JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.

Even though Section 277(1) of the 1999 Constitution of the Federal Republic of Nigeria has provided that states can confer additional jurisdiction on the Sharia Court of Appeal, such additional jurisdiction must relate to Islamic Personal Law and no other. In Magaji V Matari (2000)8 NWLR (Pt. 670)722, Karibi Whyte JSC in his concurring judgment said:-

“The intention of the Constitutional provision, which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject matters of Islamic Personal Law. The intention cannot be subverted by strained Constitution of the provision to give it an unintended meaning”

See 244(1) of the Constitution further demonstrates that the Sharia Court of Appeal can only hear and determine matters that are related to Islamic Personal Law, as it provides for appeals on those matters alone. For avoidance of doubt, the Section provides as follows:-
“244(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as to right in any civil proceedings before the Personal Law which the Sharia Court of Appeal is competent to decide”
For these few words and the more elaborate reason in the lead judgment, I too allow the appeal. The judgment of the lower court is hereby declared a nullity and it is set aside. The appeal filed against the decision of the Upper Sharia Court Argungu is hereby transferred to the appeal division of the Kebbi State High Court for hearing.

AHMAD O. BELGORE, J.C.A.: I read, before now, the judgment just delivered by my learned brother, Hon. Tunde O. Awotoye, JCA.

I agree that this appeal is meritorious and should be allowed. I allow the appeal and set aside the proceedings before the Kebbi State Sharia Court of appeal which were conducted without jurisdiction.

The decision of the Upper Sharia Court, Gwandu contained in its judgment delivered on the 10th day of June, 2010 in Case No. UCS/GD/11/25/2010 is hereby transferred to the Appellate Division of the Kebbi State High Court of Justice for hearing and determination.

No cost is awarded.
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Appearances

Dr. Suleiman Oji Esq.For Appellant

AND

A. A. Fingilla with U. A. KalgoFor Respondent