MUHAMMAD BELLO v. MUHAMMAD RUWA
(2016)LCN/8490(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2016
CA/S/40S/2015
RATIO
WORDS AND PHRASES: MEANING OF A CLAIM OF INHERITANCE
In MAGAJI V MATARI (2000) 8 NWLR PART 670 page 722. Katsina Alu JSC (as he then was) explained the meaning of a claim of inheritance this way
“A claim of inheritance presupposes that the parties are claiming from a common owner” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JURISDICTION: WHETHER THE SHARIA COURT OF APPEAL HAS JURISDICTION TO DETERMINE LAND DISPUTE
The dispute is on whether the two houses belonged to father of both parties or they were the personal property of the defendant. This is clearly a land dispute which does not involve Islamic Personal Law. It is therefore not within the jurisdiction of the lower Court as defined by Section 272 of the 1999 Constitution. Section 272 of the 1999 Constitution is pari materia with Section 242 of the 1999 Constitution which was subject to judicial determination by the Apex Court in MAGAJI V MATARI (supra). U. Muhammed JSC. in his judgment in the case, said:
“Land dispute can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a wakf, gift, will of succession where the endower, donor, testator or deceased person is a Muslim.”
A claim of inheritance involves in my respectful view, a contest between the parties as to the size of what is due to each of them in the estate of the deceased. The estate should not be the subject of the dispute which one is claiming as his personal property purchased from a third party and the other party is claiming it as being part of the estate of the deceased.
The law is settled on the lack of jurisdiction of the Sharia Court of Appeal in land matters where Islamic Personal Law is not involved. See the following cases. BOYI V HASSAN (2001) 18 NWLR (Part 744) 41, TUMFAFI V MERESNO (1993) 1 NWLR (PT 629) 378; KORAU V KORAU (1998) 4NWLR (PT 545); USMAN V UMARU (1992) 7 NWLR (PT 254) 377 GARBA V DONGO YARO (1991) 1NWLR (PT 165) 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
MUHAMMAD BELLO Appellant(s)
AND
MUHAMMAD RUWA Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the decision of the Sharia Court of Appeal, Kebbi State delivered on 9/7/2013.
The Sharia Court of Tungar – Dan Nafe was the Court of first instance where the plaintiff (now the Respondent) initiated the action originally.
The claim of the plaintiff at the Court of first instance read thus:
?I Muh?d Bello Alh. Salah Gwadi is suing one Muh?d Ruwa Alh. Salah Gwadi over the issue of the houses our Father (Alh. Saleh) bought from Dikko Chama. The left the houses under the case (sic) of Muh?d Ruwa, We asked him to give the houses so that they will be divided to rightful heirs. But up to now he refused, this is why I am suing him before this Court, so that the Court will recover the houses and divide them to the heirs.?
The claimant at the Court of first instance won the case, as the decision of the Sharia Court of Tungar – Dan Nufe was in his favour. The respondent, not satisfied with the decision, then appealed to the Upper Sharia Court Bunza which affirmed the decision of the Court of first
instance.
The Respondent who lost at the Upper Sharia Court, Bunza later appealed to the Court below and won. The lower Court set aside the decision of Upper Sharia Court, Bunza.
Now, the original claimant is now the appellant in this Court. He appealed against the decision of the lower Court on the ground that it lacked jurisdiction to hear and determine the appeal.
The record of appeal in this appeal was transmitted to this Court on 11/6/2015 after which parties filed and exchanged briefs of argument.
The appellant?s brief of argument was filed on 11/6/2015. The brief was settled by L. Olaseinde Karim, appellant?s counsel.
The appellant?s counsel formulated one sole issue for determination to wit:
?Whether the Sharia Court of Appeal had jurisdiction to entertain this case having regard to Section 277 of the 1999 Constitution (As amended)?
?Learned counsel submitted that jurisdiction was the linch pin of the entire litigation as well as the foundation upon which every litigation hinged upon. Relying on Section 277 (1) & (2) c of the 1999 Constitution, Learned counsel submitted that the
Sharia Court of Appeal was competent to hear and determine any question of Islamic Personal Law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person was a Muslim. He added that the dispute which was the subject matter of this appeal did not involve any of the said matters. He then posited that the lower Court lacked jurisdiction to adjudicate upon it. He cited MAGAJI V MATARI (2000) SNWLR PART 670 page 722 at 727; BUBA V MUSA (2007) 7NWLR PART 1032 PAGE 27 at 31 and other cases.
He finally urged the Court to set aside the judgment of the lower Court and transfer this appeal to the appellate division of the High Court Birnin Kebbi for determination.
The Respondent?s brief, settled by Hussaini Zakariyya was filed on 17/9/2015. Learned Respondent counsel also formulated one issue for determination to wit:
?Whether the Kebbi State Sharia Court of Appeal sat on an appeal relating to declaration of title of land.?
Learned respondent?s counsel submitted that the Kebbi State Sharia Court of Appeal did not sit on an appeal involving declaration of title to land.
He referred to Section 277 of the Constitution He argued that the judgment of Upper Sharia Court Bunza ?ordered for the distribution of estate? He added that the Sharia Court Tunga Dan Nufe did not decide on the right of both the appellant and the respondent but only considered the position property as it related to inheritance.
He further contended that, the claim before the lower Sharia Court was on trust and succession. He submitted that the appellant relied wrongly on Section 277 (1) and (2) of the 1999 Constitution because the section related to a situation where the Sharia Court assumed jurisdiction and gave final or interlocutory order in an appeal.
He finally urged the Court to dismiss the appeal.
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.
I shall adopt the sole issue formulated by the appellant?s counsel as I consider it apt enough for the just determination of this appeal. The issue as formulated reads
?Whether the Sharia Court of Appeal had jurisdiction to entertain this case having regard to Section 277 of the 1999
Constitution (As amended).?
It is necessary for clarity?s sake to quote hereunder the provisions of Section 277 of the 1999 Constitution as amended, for ease of reference.
Section 277 of the 1999 Constitution 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 claim of the plaintiff at the Court of first instance has been captured in this judgment. The contention of the defendant at this said Court brought to light the nature of the dispute before the said Court. On page 2 of the record of appeal, the defendant contended thus:
“The two houses he is referring to were sold to me by Dikko Jauga and the Farm was bought by our father from Mal. Saddiku. When our father did
it was divided and each of us make his own house.”
The houses the defendant claimed as having been sold to him were the ones claimed by the claimant as having belonged to their father (Alh. Saleh) after they had been sold to him by Dikko Chama. In MAGAJI V MATARI (2000) 8 NWLR PART 670 page 722. Katsina Alu JSC (as he then was) explained the meaning of a claim of inheritance this way
“A claim of inheritance presupposes that the parties are claiming from a common owner”
This is not the case in this appeal. The dispute is on whether the two houses belonged to father of both parties or they were the personal property of the defendant. This is clearly a land dispute which does not involve Islamic Personal Law. It is therefore not within the jurisdiction of the lower Court as defined by Section 272 of the 1999 Constitution. Section 272 of the 1999 Constitution is pari materia with Section 242 of the 1999 Constitution which was subject to judicial determination by the Apex Court in MAGAJI V MATARI (supra). U. Muhammed JSC. in his judgment in the case, said:
“Land dispute can only be pertinent for
determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a wakf, gift, will of succession where the endower, donor, testator or deceased person is a Muslim.”
A claim of inheritance involves in my respectful view, a contest between the parties as to the size of what is due to each of them in the estate of the deceased. The estate should not be the subject of the dispute which one is claiming as his personal property purchased from a third party and the other party is claiming it as being part of the estate of the deceased.
The law is settled on the lack of jurisdiction of the Sharia Court of Appeal in land matters where Islamic Personal Law is not involved. See the following cases. BOYI V HASSAN (2001) 18 NWLR (Part 744) 41, TUMFAFI V MERESNO (1993) 1 NWLR (PT 629) 378; KORAU V KORAU (1998) 4NWLR (PT 545); USMAN V UMARU (1992) 7 NWLR (PT 254) 377 GARBA V DONGO YARO (1991) 1NWLR (PT 165) 102.
I resolve the sole issue in favour of the appellant. This appeal has merit. It is hereby allowed.
The proceedings and judgment of the lower Court in SCA/KBS/BZ/37/2013 between MUHAMMAD BELLO V
MUHAMMAD RUWA are hereby set aside.
The said appeal is hereby remitted back to the appellate division of the High Court of Kebbi State for determination.
Parties are to bear their respective costs.
PAUL ADAMU GALINJE, J.C.A.: I agree
MUHAMMED LAWAL SHUAIBU, J.C.A.: I entirely agree.
Appearances
L. Olaseinde Karim, Esq.For Appellant
AND
Hussaini Zakariyya, Esq.For Respondent
