ALHAJI SAITI v. MALAM ALTINE (2019)

ALHAJI SAITI v. MALAM ALTINE

(2019)LCN/13717(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of July, 2019

CA/S/14S/2019

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

ALHAJI SAITI Appellant(s)

AND

MALAM ALTINE Respondent(s)

RATIO

WHETHER OR NOT JURISDICTION OF A COURT IS DETERMINED BY THE PLAINTIFF’S CLAIM

It is settled law that the jurisdiction of a Court is determined by the plaintiff?s claim and this is ascertained by merely looking at the plaintiff?s statement of claim to see the nature of the claim. See ADEYEMI V OPEYORI (1976) 7-9 SC 31, AGBUJE WARRI REFINARY & PETROCHEMICAL CO. LTD (2013) 6 NWLR (PT. 1350) 318. PER WAMBAI, J.C.A.

WHETHER OR NOT THE SHARIA COURT OF APPEAL POSSESS JURISDICTION TO HEAR AND DETERMINE AN APPEAL

THE FUNDAMENTAL NATURE OF JURISDICTION

Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be over-emphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity, because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS vs. JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR vs. CO-O. ASSO. OF PROF. ING (2003) 5 NWLR (Pt. 813) 303, NDAEYO vs. OGUNAYA (1977) 1 SC 11 @ 24 ? 26. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Birnin Kebbi Judicial Division of Kebbi State Sharia Court of Appeal in Appeal No. SCA/KBS/BK/59/2016 delivered on the 17th May, 2017 affirming the judgment of the Upper Sharia Court III, Birnin Kebbi which entered judgment in favour of the Respondent against the Appellant.

The Respondent, as plaintiff; sued the Appellant as Respondent, before the Upper Sharia Court III, Birnin Kebbi, now called the trial Court, claiming that the Appellant had refused to remove his corrugated sheet fence on his plot and praying the Court to investigate and demarcate the boundary line between them.

The Appellant denied the claim and the matter went to trial. Both parties presented their witnesses before the Court. Only one of the Appellant?s witnesses was considered credible. Two of the witnesses were given Oath but they declined. The Respondent took the Oath affirming the boundary line delineated by him as the boundary between them. Judgment was entered in his favour.

?Aggrieved by the decision, the Appellant appealed to the Sharia

Court of Appeal, now called the Court below, which affirmed the decision of the trial Court.

Still unhappy, the Appellant approached this Court by a Notice of Appeal filed on 16th November, 2018 predicated upon the following grounds, to wit:
GROUND ONE:
The learned Kadis erred in law and thus, arrived at a wrong decision when they affirmed the decision of the trial Court without considering the errors therein for non-compliance with the mandatory requirement of the Islamic Law for a valid statement of claim.
GROUND TWO:
The lower Court erred in law and thereby occasioned a serious miscarriage of justice when the learned Kadis entertained and decided upon the appeal which they lacked the requisite jurisdiction to adjudicate upon.
GROUND THREE:
The decision of the lower Court is perverse and the trial Court arrived to a wrong conclusion.
GROUND FOUR:
The learned Kadis erred in law and thereof occasioned a serious miscarriage of justice when they affirmed the decision of the trial Court without considering the errors therein for non-compliance with the mandatory requirement of the Islamic Law to first identify

who the proper parties should be.
GROUND FIVE:
The judgment of the lower Court is against the weight of evidence.

From these issues the learned Appellant?s counsel, Ahmad A. Fingilla, Esq., submitted four (4) issues for determination, namely: –
i. Whether there was a valid claim against the Appellant before the trial Court as required by Islamic Law. (Distilled from ground one of the Notice and Grounds of Appeal).
ii. Whether from the claims of the Respondent before the trial Court, the lower Court has the requisite jurisdiction to hear and determine the appeal filed before it. (Distilled from ground two of the Notice and Ground of Appeal).
iii. Whether the lower Court properly re-evaluated the evidence led before the trial Court in reaching its conclusion. (Distilled from grounds three and five of the Notice and Ground of Appeal).
iv. Whether the lower Court was right to have ignored the mandatory requirement of Islamic Law for a judge to first identify the proper parties before him especially when the need arise. (Distilled from ground four of the Notice and Ground of Appeal).

At the hearing of the appeal

on the 6/05/2019, the Respondent?s counsel was shown to have been served with hearing notice and also with the Appellant?s brief of argument but was absent from the Court and without filing any brief of argument before the Court. The time for filing the Respondent?s brief of argument having elapsed and without any application for extension of time to do so Court, the Appellant?s counsel A. A. FINGILLA ESQ., was allowed to argue the appeal. This appeal was therefore argued as a non-contested appeal. That notwithstanding, the appeal has to succeed or fail on the strength of the Appellant?s case. The sustainability of the appeal depends on its own strength and will swim or sink on its legal value and not on the absence of the Respondent?s brief. See Echere Vs Ezirike (2006) 12 NWLR (Pt. 994) 3861, Akanbi Vs Alatede (2000) FWLR (Pt. 11) 1928.

Considering the nature of the Appellant?s second issue which bothers on the question of the jurisdiction of the Court below to entertain the appeal from the trial Court, it is more appropriate to first determine that issue before considering the other issues, if necessary.<br< p=””

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Arguing the issue learned counsel pointed out that the Respondent?s claim before the trial Court was for a declaration of title to a parcel of land and seeking an order of Court against the Appellant to remove the fence and surrender same to the Respondent. According to him, this claim removes the jurisdiction of the Court below to hear the appeal by virtue of Section 277(2) (a) ? (e) of the Constitution of the Federal Republic of Nigeria, whose provision, he reproduced.

He cited several authorities to buttress his argument and to impress it upon us that on this issue alone, the appeal should be allowed. These authorities include:
(1) Magaji vs. Matari (2000) 8 NWLR (Pt. 670) Page 722 also reported in (2000) FWLR (Pt. 18) 237 at 248;
(2) Alhaji Yahaya Salema & Hajiya Dije vs. Alhaji Mamman & Anor (2006) 3 SLR (Pt. 203);
(3) Maishanu vs. Manu (2007) NWLR (Pt. 1032) page 42;
(4) Hakimi Boyi vs. Magaji Hassan (2006) 3 SLR (Pt. 2) Pg. 195 @ 197-198.

It is settled law that the jurisdiction of a Court is determined by the plaintiff?s claim and this is ascertained by merely looking at the

plaintiff?s statement of claim to see the nature of the claim. See ADEYEMI V OPEYORI (1976) 7-9 SC 31, AGBUJE WARRI REFINARY & PETROCHEMICAL CO. LTD (2013) 6 NWLR (PT. 1350) 318.

Therefore, to determine whether the lower Court is vested with the requisite jurisdiction to entertain the appeal, the Appellant?s statement of claim before the trial Court is the reference point. The statement of claim as reproduced at page 1 of the record of appeal reads thus:
?I Altine Illela-yari is suing one Alh. Saiti before this Hon. Court because I used to sue him before the Court and we were enjoyed to go and reconcile. This is on the ground that he will go and remove his corrugated sheet in my plot. But for the past 10 months he did not remove them. This is why I am suing him before this Court so that the Court will investigate and draw boundary line between us.?

It is crystal clear from the reproduced statement of claim that the respondent?s claim at the trial Court was over title to the portion of land claimed to have been encroached upon by the Appellant, which Appellant claimed does not belong to the Respondent. The

dispute involves question of title to land simpliciter.

Now, the law has since been settled that the Sharia Court of Appeal does not possess the jurisdiction to hear and determine an appeal where the issue before it is or involves question of title to land simpliciter. See ABUJA Vs. BIZI (1989) 5 NWLR (Pt. 119) 120, BOYI Vs. HASSAN (2001) NWLR (Pt. 744) 41 @ 48, MAGAJI Vs. MATARI (2000) 8 NWLR (Pt. 670) 722, SALATI Vs. SHEHU (1986) 1 NWLR (Pt. 15) 198 @ 199, GARBA Vs. DOGON YARO (1991) 1 NWLR (Pt. 165) 102 @ 120.
The scope of the jurisdiction of the lower Court is as provided in Section 277 (1) & (2) a-e. It provides:
?(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.?
?The scope of the jurisdiction of the Sharia

Court of Appeal was succinctly stated by Karibi Whyte, JSC in his concurrent judgment, in Magaji v. Matari (supra), when he stated thus: –
?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.?
The jurisdiction of the Court to hear and determine appeals on land disputes is limited to disputes on land involving questions of Islamic Personal on the specified items in paragraph (a) ? (d). In his judgment in MAGAJI v. MATARI (Supra) Mohammed JSC aptly explained the scope of jurisdiction of the Court with regards to land matters in these words:
?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.
?Therefore, from the litany of decided authorities and the statement of

claim before the trial Court, no judicial erudition is required to come to the irresistible conclusion that the appellate and supervisory jurisdiction of the lower Court does not extend to entertaining this action which is purely on dispute over ownership of the portion of land claimed by both parties simpliciter, and is not related to any dispute involving questions of Islamic personal. The dispute only raises the question of title to the disputed piece of land claimed to have been encroached upon by the appellant which appellant claims to belong to him. It has nothing to do with any issue of Islamic law on land matter regarding or connected with a wakf, gift, will, or succession which requires the application of Islamic law. In other words, the claim before the lower Court is completely outside the purview of the jurisdiction of the lower Court. The lower Court has no jurisdiction to entertain the appeal.

over-emphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity, because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS vs. JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR vs. CO-O. ASSO. OF PROF. ING (2003) 5 NWLR (Pt. 813) 303, NDAEYO vs. OGUNAYA (1977) 1 SC 11 @ 24 ? 26.
Where, therefore, a Court adjudicates on a matter without or in excess of jurisdiction, the adjudication amounts to a nullity. It is an exercise in futility and amounts to nothingness.
Once a Court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication amounts to a nullity; it has no legal force whatsoever and it is as if it never took place because of the incompetence of the Court to

have entertained the case ab initio. Such a null decision of the lower Court is entitled, as a matter of course, to be set aside. Accordingly, this appeal succeeds and is allowed. The decision of the lower Court delivered on the 17/5/2017 is hereby set aside and the appeal from the decision of the trial Court, the Upper Sharia Court III Birnin Kebbi delivered on the 22/7/2017 is referred to the Kebbi state High Court for adjudication.
The resolution of this issue in favour of the Appellant renders the other issues otiose.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, in advance, the judgment just delivered by my learned brother, AMINA A. WAMBAI, JCA. I agree with his reasoning and conclusion.
I allow the appeal.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA A. WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal. The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic

Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue. The dispute in the instant case is predicated upon a claim of title to a landed property. The Appeal having been adjudged meritorious, consequently, I abide by all other consequential orders made thereto.

Appearances:

A. A. Fingilla, Esq.For Appellant(s)

No appearanceFor Respondent(s)

Appearances

A. A. Fingilla, Esq.For Appellant

AND

No appearanceFor Respondent