USMAN CHISO & ANOR v. MANDIYA BELLO & ANOR
(2016)LCN/8484(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/S/30S/2009
RATIO
JURISDICTION: WHETHER THE SHARIA COURT OF APPEAL HAS JURISDICTION IN RELATION TO LAND DISPUTES
I have carefully considered the submission of learned counsel. Apparently the claim of the claimant at Dalijan Sharia Court was on ownership of farmlands Appeals from land matters when Islamic Personal Law is not involved are not within the jurisdiction of a Sharia Court of Appeal. The provision of Section 277 of the Constitution is very clear on this. It reads thus
“Section 277
1. The sharia Court of Appeal of a state shall, in addition to such 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 Sub-Section (2) of this section.
2. For the purpose of Sub-Section (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 the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of 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
Where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the First Instance to determine, that the case in accordance with Islamic personal law, any other question.”
The case law is also settled on it. See MAGAJI V. MATARI (2000) 8 NWLR (PT 670) PAGE 722 BOYI V. HASSAN (2001) 18 NWLR (PT 744) 41, TUMFAFI V. MERESNO (1993) INWLR (PT 629) 378; KORAU V. KORAU (1998) 4 NWLR (PT 545); USMAN V. UMARU (1992) 7 NWLR (PT 254) 377; GARBA V. DANGO YARO (1991) INWLR (PT 165) PAGE 102. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. USMAN CHISO
2. RUWA CHISO – Appellant(s)
AND
1. MANDIYA BELLO
2. ALU BELLO – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed on 27/7/2006 by the appellants, the Court of first instance in this appeal was Sharia Court Dalijon. The claim before the Sharia Court Dalijan reads thus
“I Usman Susu and Ruwa Susu Barama are suing Bello Mai-Gandu, Alu Mai – Gandu and Badiya Mai-Gandu Gudai because our father entrusted farms to our village head. The village head leased one farm to their father called mai – Gandu. Now our father is dead and their father is also dead. We seek that they gave us our farm so that we will divide it, but they refused. They claim that it is their farm not ours. The village head invited us both and said that he transfer to us the trust that our father gave him. But they disagree. This is why we are suing them so that they will give us our farm which belong to our father – Yahaya.”
The Sharia Court Dalijan heard the parties and gave judgment in favour of the claimants.
The defendants appealed to the Upper Sharia Court Argungu as they were then dissatisfied with the decision of Dalijan Court, the Upper Sharia Court Argungu after hearing the parties also gave judgment affirming the decision of the Dalijan Court.
There was then a further appeal to the Sharia Court of Appeal Kebbi State which sat in Argungu, the lower Court after hearing the parties allowed the appeal and reversed the decision of the Dalijan Court.
Miffed by the decision of the lower Court, the appellants filed Notice of Appeal challenging the said decision, the appellants sought and obtained leave to file and argue additional grounds of appeal as contained in their amended Notice of Appeal filed on 14/5/2015.
The grounds of appeal as per the amended Notice of Appeal are
GROUND ONE: ERROR IN LAW
That Sharia Court of Appeal Kebbi State erred in law when it entertained appeal No SCA/KB/AR/04/05 without jurisdiction.
Particulars
a. The Sharia Court of Appeal Kebbi State has no jurisdiction on matter concerning Islamic Personal Law Status as contained in Section 277 (2) (A-E) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
GROUND TWO: ERROR IN LAW
The learned Kadis of Sharia Court of Appeal Kebbi State erred in law when they held that the farmland belongs to the respondent, contrary to principle of Hauzi (Prescription) which does not affect a property under loan, pledge or safe keeping in possession of another person.
Particulars
A. Under Islamic Law prescription does not apply where a property is on loan, pledge or entrusted to someone for safekeeping as help in the case of MALLAM NASI & 2 ORS VS ZAID HARUNA (2002) 2 NWLR (PT. 750) 240.
B. The principle of Hauzi (Prescription) is in applicable to the subject matter of this case as it was entrusted to the Hakimi who leased same to the Respondent father.”
The record of appeal was subsequently transmitted to this Court on 30/4/2007 after which the appellants filed their appellant’s brief of argument on 3/6/2010 after time to do so was extended on 20/5/2010.
Inspite of having been served, the respondents failed to filed respondent’s brief of argument.
I shall therefore in line with ORDER 18 RULE 10 (1) Of the Court of Appeal determine this appeal based on appellant’s brief alone.
In their brief of argument settled by Bada Idris, appellant’s counsel. Learned counsel challenged the jurisdiction of the lower Court to hear and determine an appeal arising from a suit on competing claims over ownership of farmland. He referred to the provision of Section 277 of the Constitution and relied on ABUBAKAR FARANSI V HABSATU NOMA (2007) 10 NWLR (PT 1041) page 202.
He urged the Court to resolve the issue in favour of the appellant.
I have carefully considered the submission of learned counsel. Apparently the claim of the claimant at Dalijan Sharia Court was on ownership of farmlands Appeals from land matters when Islamic Personal Law is not involved are not within the jurisdiction of a Sharia Court of Appeal. The provision of Section 277 of the Constitution is very clear on this. It reads thus
“Section 277
1. The sharia Court of Appeal of a state shall, in addition to such 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 Sub-Section (2) of this section.
2. For the purpose of Sub-Section (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 the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of 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
Where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the First Instance to determine, that the case in accordance with Islamic personal law, any other question.”
The case law is also settled on it. See MAGAJI V. MATARI (2000) 8 NWLR (PT 670) PAGE 722 BOYI V. HASSAN (2001) 18 NWLR (PT 744) 41, TUMFAFI V. MERESNO (1993) INWLR (PT 629) 378; KORAU V. KORAU (1998) 4 NWLR (PT 545); USMAN V. UMARU (1992) 7 NWLR (PT 254) 377; GARBA V. DANGO YARO (1991) INWLR (PT 165) PAGE 102.
In the circumstance, I hold that this appeal has merit. It is hereby allowed. The proceedings and judgment of the lower Court in appeal No SCA/KBS/AR4/2005 delivered on 19/7/2006 are hereby set aside. The appeal to the lower Court from the Upper Sharia Court is hereby remitted back to the appellate division of Kebbi High Court for determination.
PAUL ADAMU GALINJE, J.C.A.: I agree.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I entirely agree.
Appearances
Samaila Abdu Esq. For Appellant
AND
A. A. Fingilla Esq. For Respondent
