GIWA KUMU DABAI v. MAUCHI WAWAN KWAMA (2014)

GIWA KUMU DABAI v. MAUCHI WAWAN KWAMA

(2014)LCN/7673(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of March, 2014

CA/S/68s/2012

RATIO

COURT: JURISDICTION; THE JURISDICTION OF THE SHARIA COURT OF APPEAL IN SUCCESSION CASES

Clearly, the claim of the plaintiff at the Upper Sharia Court was on succession. The jurisdiction of the Sharia Court of Appeal in succession cases is defined in Section 277 of the 1999 Constitution thus:
“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.”
Section 277 (2c) of the Constitution vests jurisdiction on the Sharia Court of Appeal on any question of Islamic Personal Law regarding a Waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.
In MAGAJI V. MATARI (2000) 8 NWLR (Pt. 670) 722. Mohammed JSC had this to say on the above provision
“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.”
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 – 7924 (CA). At the Upper Sharia Court Zuru, the statement of claim of the plaintiff and in fact the entire proceedings did not reflect the faith of the deceased whose estate was to be shared neither did the lower court advert its mind to the point that it is a sine qua non that the deceased whose land is to be shared must be a Muslim for the Sharia Court of Appeal to have jurisdiction to hear the appeal, moreso when the subject matter of the action on appeal is land. The jurisdiction of a court is the pivot of any valid adjudication by that court and without it the whole proceedings is an exercise in futility and a nullity. See MADUKOLU V. NKEMDILIM (1962) 2SCNLR 341. See also GOMBE V. P.W [NIG] LTD (1995) 6NWLR (Pt. 402) 402. per. TUNDE O. AWOTOYE, J.C.A.

Before Their Lordships

JAFARU MIKA’ILUJustice of The Court of Appeal of Nigeria

TUNDE OLAREWAJU AWOTOYEJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

GIWA KUMU DABAIAppellant(s)

AND

MAUCHI WAWAN KWAMARespondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed against the decision of the Sharia Court of Appeal Kebbi State delivered on 29/7/2009.

The appellant as plaintiff had earlier on instituted an action against the Respondent at the Upper Sharia Court Zuru claiming as follows.

“I Wawa Kwama Giro, a resident of Dabai town is suing one Giwa Kumu Dabai because he is my relation but he started & stalling out inheritance I talked to him that the issue should be divided and allotted to each heir is entitlement. But he said that he will take his own share because he will not join his inheritance with anyone. Whereas his father died a traditional believer while he is a Muslim. He will not pay the traditional alm in respect of tradition. As such I am suing him so that he will remove his hand because it was my brother that is his father that we share inheritance with.”

The Upper Sharia Court after hearing the parties gave judgment after being satisfied with the testimonies of the plaintiff witnesses and ordered the division of the farm to the following:
1. Wawan Kwama
2. Dan – dizi
3. Baba
4. Muse
5. Kumu (father of Giwa)

The defendant not satisfied with the judgment of the Upper Sharia Court appealed to the Lower Court on the following grounds:

1. “The judge was not far to me because he judge that the farm be distributed which farm I inherited from my father called Kumu Kane for about 68 years I had been farming it not those that claimed to have a share on it.
2. The judge said I should bring witness, I brought 4 witnesses and they gave evidence according to the claim.
3. I am praying this court to overturn the decision of U.S.C Zuru to leave my farm for me”

After hearing the parties the lower court dismissed the appeal as follows:

“Because of what happen we at this court we have ruled and confirmed the decision of the trial U.S.C. Zuru which ruled for the distribution of the farm disputed farm between the Appellant and the Respondent and the other hairs according to the Shariah.
We dismissed the appeal.”

It is against the above decision of the Lower court that the appellant filed Notice of Appeal containing 6 grounds.
The 6 grounds of appeal (Shorn of the particulars) are

GROUND 1
The Trial Upper Shari’ah Court Zuru, Kebbi State erred in law when it entertained an Appeal on an issue which it lacked jurisdiction.

GROUND 2
The court below lacked the jurisdiction to entertain an appeal from the decision of the Trial Upper Shari’ah Court Zuru, Kebbi State.

GROUND 3
The court below erred in law when it entertained and confirmed the decision of the trial court which was reached without the jurisdiction of the trial court and therefore reached per in curium.

GROUND 4
The court below erred in law when it confirmed the decision of the trial court when the witnesses of the claimant before the trial court were all non Muslims and therefore incompetent in the suit before it and used their testimony in reaching its decision.

GROUND 5
The court below erred in law when it confirmed the decision of the trial court when the said lower shari’ah court lacked the requisite jurisdiction to try the case as there was no evidence of the death of the deceased, or the estate left by deceased or even the successors of the deceased, whose estate was the subject of the claim before the trial Upper Shari’ah court Zuru.

GROUND 6
The decision of the Hon. Judges of the Lower Court was perverse, unreasonable and cannot be justified by any weight of evidence adduced by the respondent.

After transmission of record of appeal to this court parties filed and exchanged their respective briefs of argument.

The appellant’s brief was settled by M. A. Sambo appellant’s counsel and filed on 20-8-2013

The Respondent’s brief settled by A. Y. Abubakar, was filed on 20-11-13 but deemed filed on 10-2-2014.

The appellant’s counsel formulated three issues for determination thus;
i. Whether the trial court had jurisdiction to entertain the matter involving the parties
ii. Whether the court below was right to affirm the decision of the trial court despite the fact that the trial Upper Shari’ah Court had no jurisdiction to try the matter.
iii. Whether having regard to the trial generally, the lower court decision was not reached per in curium (sic)?

On issue No.1, learned counsel for the appellant submitted that the trial court did not have jurisdiction to try the matter under Islamic law when all the heirs were non-Muslims! He referred to s. 9(2) of the Sharia (Administration of justice) law 2000 and submitted that the condition precedent as provided under paragraph 2 was not met as none of the parties to which the court shared the inheritance was a Muslim and none of them submitted in writing to the jurisdiction of the trial court.
He relied on DRAXEL ENERGY V. TIB (2008) 36 NSCQR (PART 2) 1219 at 1248-1249

Learned counsel submitted further that the claim before the court did not disclose:
a. whose inheritance the Respondent was claiming
b. evidence of death of deceased
c. successes of the deceased and what estate was left by the deceased
d. in whose custody was the estate
He cited MAISHANU V. MANU [2007] 7 NWLR (Pt.1032) 42 at 44.

He finally urged the court to resolve issue No.1 in favour of the Appellant.

On issue No.2 learned appellant’s counsel submitted that it was clear from the statement of claim before the court that the person whose inheritance was in issue died as a traditionalist, and yet they heard it.

He added that though the appellant did not raise the issue of jurisdiction at the court below it could still be raised before this court. He relied on UKUDANO V. KEREGBE (2002) 38 WRN 139 at 142. He therefore urged the court to hold that the court below was wrong to have affirmed the decision of the trial Upper Sharia Court.

On issue No.3 M. A. Sambo for the appellant submitted that the Upper Shariah Court granted the claim of the plaintiff/respondent and ordered the sharing of the farmland to the heirs four of whom were never invited before the trial court. He submitted further that there were no witnesses as to the death of the deceased, evidence as to the estate left by the deceased or even evidence as to who succeeded the deceased.
He stated that it was a serious error for the court to go into devolution of the estate left by the deceased without fulfilling the condition precedent.
He finally urged the court to resolve issue No. 3 against the Respondent and in favour of the appellant. He urged the court to allow the appeal, set aside the judgment of the court below and the trial court.

In the Respondent’s brief learned Respondent’s counsel adopted the issues formulated for determination by the appellant.

On issue No.1 learned counsel for the Respondent submitted that s.9 (2) of the Kebbi State Shariah (Administration of Justice) Law 2000 was not applicable to the case in point in the sense that all the parties to the case were Muslims and none of them professed any faith other than Islam.

He cited MACAULEY V RAIFFEINSSEN ZENTRAL BANK (2003) 5 NSCQLR 125 at 137 and ADISA V. OLAYIWOLA (2000) 2 NSCQR 1263 at 1322. He submitted that the Trial Upper Sharia Court Zuru was competently seized with jurisdiction to try the matter as all the parties before it were Muslims and believed in Islam.

He urged the court to resolve the issue in favour of the Respondent.

On Issue No.2, learned Respondent’s counsel adopted his arguments on issue No.1 and urged the court to resolve the issue in favour of the respondent.

On Issue No.3, A. Y. Abubakar, for the Respondent defined the meaning of per incuriam by referring to ROSSEK & ORS V. ACB & ORS (1993) 8 NWLR 382; MAKUN V. FUT MINNA (2011) 18 NWLR pt 1278 p. 190 at 225-226.

He submitted that the decision of the lower court was based on sound legal principle. He relied on MAI AIKI V. MAI DAJI (2006) 3SLR (Pt. 11) 39 at 51. He urged the court to affirm the decision of the Upper Sharia Court Zuru and resolve this issue in favour of the Respondent.
He finally urged the court to dismiss the appeal.

I have carefully considered the arguments canvassed on both sides as well as the contents of the record of appeal.

I am of the respectful view that the only issue that calls for determination in this appeal is whether or not the lower court erred to have affirmed the decision of the Upper Sharia Court.

I therefore resolve the sole issue in favour of the appellant.
This appeal has merit and it is hereby allowed.
This appeal is remitted back to the Hon. Chief Judge of Kebbi State to be heard by High Court Kebbi State in its appellate jurisdiction.
Parties are to bear their respective costs.

PRONOUNCEMENT:

JAMES SHEHU ABIRIYI, J.C.A.:HON. JUSTICE MIKA’ILU (NOW LATE) PRESIDED OVER THE APPEAL AND AGREED WITH THE LEADING JUDGMENT OF HON. JUSTICE T. O. AWOTOYE J.C.A.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading before now the lead judgment just delivered by my learned brother Tunde O. Awotoye, JCA. I agree entirely with the lead judgment and have nothing to add.

It was nowhere shown that the deceased whose estate was to be shared was a Muslim. There was therefore no basis on which the lower court would assume jurisdiction.

I also resolve the only issue for determination in favour of the Appellant.
I allow the appeal.

This appeal is remitted back to the Hon. Chief Judge of Kebbi State to be heard by the High Court Kebbi State in its appellate jurisdiction.

Parties to be bear their respective costs.

Appearances

M. A. Sambo with Giwa Kumu DabaiFor Appellant

AND

U. N. Ibekwe with Miss Rasheedat MuhammadFor Respondent