ABDULLAHI DANBARUNDU KARDI v. ZAKI DANKAZA MAMMAWA
(2018)LCN/12255(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/S/54S/2017
RATIO
JURISDICTION: THE JURISDICTION OF THE SHARIA COURT OF APPEAL
“The law is settled that the Sharia Court of Appeal will not have jurisdiction to hear and entertain an appeal where the issue before it involves question of title to land simpliciter. See TUMFAJI V. MERESO (1993)1 NWLR (Pt. 239) 378 at 384; ABUJA V. BIZI (1989)5 NWLR (Pt.119) 120; GARBA V. DOGON YAROÂ (1991)1 NWLR (Pt.165)102 at 120; SALATI V. SHEHU (1986)1 NWLR (Pt.15)198 at 1199 and BAKA-JIJI & ANOR V. IBRAHIM ABARE (1999)1 NWLR (Pt.586) 243 at 521.” PER HUSSEIN MUKHTAR, J.C.A.
JURISDICTION: WHERE THE COURT LACKS JURISDICTION
“When a Court lacks jurisdiction in any matter, the entire proceedings conducted and its decision thereon no matter how expertly, sound and admirable it may otherwise be, amounts to an absolute nullity. It has no other value than vanity. See BOYI V. HASSAN (2001) 18 NWLR Pt. 744 p. 41 at 49.” PER HUSSEIN MUKHTAR, J.C.A.
Justices
HUSSEIN MUKHTAR 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
ABDULLAHI DANBARUNDU KARDIAppellant(s)
AND
ZAKI DANKAZA MAMMAWARespondent
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is appeal queries the judgment of the Sharia Court of Appeal (SCA) Kebbi State delivered on the 9th day of November, 2016.
The proceedings emanated from Sharia Court Gulmare, where the Appellant sued the Respondent claiming for the distribution of his deceased fathers estate (Muhammad Dan Barunda) comprising of five farmlands and a house, all of which were in the Respondents possession.
The trial Sharia Court delivered its judgment in favour of the Appellant on 3rd August 2014. Dissatisfied with the decision, the Respondent appealed to Upper Sharia Court (USC) Jega, which affirmed the decision of the trial court on 13th March 2015. Further dissatisfied, the Respondent again appealed to the Kebbi State Sharia Court of Appeal Birnin Kebbi, which upturned the concurrent decisions of the two lower Courts and entered judgment in favour of the Respondent. The Appellant was unhappy with that decision and exposed it to further judicial scrutiny by filing a Notice of Appeal, which was later amended with leave of Court.
The amended Notice of Appeal is predicated upon seven grounds as hereunder reproduced without their particulars:
1. The judgment of the Court below is unreasonable, unwarranted and cannot be supported having regards to the evidence before the trial Court.
2. The Court below erred in law when in overturning the decision of the lower Courts; it gave the respondent herein an oath. Where it held thus:
“Since the issue of prescription arose, we asked the appellant if he can take an oath that these farms in dispute which are in his possession for 60 years, he inherited them from his father and Danbarunda has no right over them and the appellant has replied and he has sworn, for that we affirmed the farms to him.”
3. The Court below erred in law where in holding that the witness of relationship under Islamic law must be two thus:
“We have seen the Court has asked the plaintiff witnesses but the Court itself stated only one witness was genuine but decided by adding oath taking to the plaintiff and this is a grievous mistake because Zaki Dankaza has derived relationship between him and Abdullahi Danbarunda and the witnesses of relationship under Islamic laws must be two,. Unless relationship is established ”
4. The Court below erred in law, when it based its decision on the principles of prescription (Hauzi) where it held thus:
“On our sitting on 11-10-2016 with all the parties, we asked the parties on the duration of the farms with the appellant as he stated in his grounds of appeal and all the parties agree that the farms are with Zaki Dankaza for 60 years it looks that even if the relationship is established in the eyes of the law prescription has defeated Danbarunda see Fathul Ali AI-Malik VOL. 2, page 319.
where the holder of the subject matter in dispute confessed that it is for inheritance. It is mandatory for him to give the heirs their rights no matter how long it takes but where he stated it belongs to him or his father and where the claimant kept mute up to 40 years, he has no right to claim for it later.”
5. The Court below lacks Jurisdiction to entertain matters of declaration of title to land other than those having to do with Islamic Personal Law.
6. The Court below fell in to great error by ignoring legal evidence and basing its decisions on issues that were not before the trial Court where it held thus:
”And another amazing thing is that the respondent is saying he has inheritance in these farms, we have seen that he is claiming his father and the grandfather of the appellant are the same mother and the same father but there is no explanation (as to) who is the original owner of the farms but all the same the lower Court (made) such a decision.”
7. The Court below erred in law in its judgment (and) did not give the appellant fair hearing- No I’izar (was conducted).
The Appellants counsel distilled five issues for determination thus:
1. Whether, the respondent or the lower Court has power/jurisdiction to change the case of the Appellant from that of inheritance to that of declaration of title to land by prescription (Hauzi). (Distilled from grounds 1 & 2)
2. Whether, the appellant presented the required number of witnesses to prove his relationship under Islamic law to entitle him to a share of the inheritance in the estate left behind by Muhammad Dan Barunda (His father). (Distilled from ground 3)
3. Whether, the lower Court has jurisdiction to entertain any matter bordering on declaration of title to land. (Distilled from grounds 5 and 6)
4. Whether, the lower Court has accorded the appellant fair hearing. (Distilled from ground 7)
5. Whether hauzi [prescription] can defeat inheritance under islamic law (Distilled from ground 4).
The Appellants issue three, which is predicated upon jurisdiction of the Court below will be first considered and determined. The critical poser in that issue reads thus:
Whether the lower Court has jurisdiction to entertain the matter bordering on declaration of title to land.
It was argued for the Appellant that the matter presented to the Court below as per the Respondents grounds of appeal are predicated upon competing claims of ownership or title to land. This can be discerned form the Appellants claim and the response to it by the Respondent as observed by the trial court thus:
I spent more than 60 years holding the farms cultivating the farms because I inherited them from my father Maidaji Mamman and he also Maidaji inherited them from his father and all these years they kept mute.
2. All the witnesses he brought did not say anything because each one of them stated that he did not know his father (on that land).1
The lower Court below made the following observations:
The Defendant/appellant denied any relationship and stated that the father of the plaintiff came to their house as a stranger. At our sitting (on) 11/11/2016 with all the parties, we asked the parties on the duration of the farms with the appellant as he stated his grounds of appeal and all the parties agreed that the farms are with Zaki Dankaza for 60 years. It looks that even (sic) the relationship is established in the eyes of the law prescription has defeated Danbarunda
It was submitted for the Appellant that the Court below misconceived the case before the trial Court and U.S.C Jega as one predicated on inheritance when it observed thus: –
“We have considered this case is the case of inheritance where the defendant instituted a case before the Court of first instance for the distribution of farms which their father Danbarunda left for them.
However, the lower Court further observed thus:
Defendant/appellant denied any relationship and stated that the father of the plaintiff came to their house as a stranger.
It was submitted for the Appellant that the dispute in the instant case is predicated upon competing claims of title to land, which is outside the jurisdiction of the lower Court as provided by Section 277(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The jurisdiction of Court below is spelt out under Section 277(1) and (2) of the Constitution, which generally deals with questions of application of Islamic Personal Law. In the case of Garba V Dogon Yaro (1991) 1 NWLR [PT 165] P 102 @ 111 cited with approval in Gambo V Doka (2016) LPELR – 40251(CA) ratio 1 per Okunola JCA enumerating the nature of a claim for inheritance or succession under Islamic personal law) as follows:
“Before a dispute could become a question regarding the issue of succession in order to confer jurisdiction on Sharia Courts, it must make succession an issue. Thus, the instances in which issue or dispute could be made a subject of succession as envisaged by Section 242(2)(c) of the 1979 Constitution includes the following: viz-
(a) a dispute over the failure to distribute the estate after the death of the deceased;
(b) a dispute over the devolution of the estate between the heirs;
(c) a dispute over any heritable estate which any person withholds away from the heirs;
(d) a dispute over the right to make a particular property within the estate;
(e) a dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime;
(f) a dispute over payment of a debt marred by the deceased in his lifetime from the estate he or she had left behind;
(g) a dispute over the exclusion of an heir from inheriting from the estate. And all such disputes which can be attributed to the estate succession.”
It was submitted further that all the grounds of the respondents in the USC Jega as well as at the lower Court were based on title to land backed up by prescription (Hauzi), which falls outside the scope of the jurisdiction of Sharia Court of Appeal.
It has been held by the Supreme Court and this Court in a plethora of authorities that matters predicated upon claim of title to land simpliciter are not within the scope of the jurisdiction of Sharia Courts of Appeal as provided by Section 277 of the Constitution.
The law is settled that the Sharia Court of Appeal will not have jurisdiction to hear and entertain an appeal where the issue before it involves question of title to land simpliciter. See TUMFAJI V. MERESO (1993)1 NWLR (Pt. 239) 378 at 384; ABUJA V. BIZI (1989)5 NWLR (Pt.119) 120; GARBA V. DOGON YAROÂ (1991)1 NWLR (Pt.165)102 at 120; SALATI V. SHEHU (1986)1 NWLR (Pt.15)198 at 1199 and BAKA-JIJI & ANOR V. IBRAHIM ABARE (1999)1 NWLR (Pt.586) 243 at 521.
Thus, in the exercise of its appellate and supervisory jurisdiction, the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law or any other question, which it is competent to adjudicate upon under the provisions of Section 277 (1) and (2) (a) to (e) of the Constitution. The provision spells out the scope of the jurisdiction of Sharia Court of Appeal to determine civil appeals thus:
(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 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 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.
See MAGAJI V MATARI (2014) 28 QLR (PT. 11) 181 at 198 – 199 AND KANAWA VS MAIKASET (2007) 10 NWLR (PT 1042) 283.
The Supreme Court of Nigeria has aptly pronounced the scope of the jurisdiction of Sharia Court of Appeal in the case of MAGAJI V. MATARI (2000) 8 NWLR PT. 670 PAGE 723 AT 727 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 construction of the provision to give it an unintended meaning.”
The provision of Section 277 of the Constitution has restricted the jurisdiction of the Sharia Court of Appeal to exercising appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law.
When a Court lacks jurisdiction in any matter, the entire proceedings conducted and its decision thereon no matter how expertly, sound and admirable it may otherwise be, amounts to an absolute nullity. It has no other value than vanity. See BOYI V. HASSAN (2001) 18 NWLR Pt. 744 p. 41 at 49.
In the instant case, the dispute between the appellant and the respondent is predicated upon competing claims of title to land. It is immaterial that the genesis of the title is connected with inheritance. That does not ipso facto translate the matter to one involving Islamic Personal Law. It directly questions claim of title to land, which certainly falls outside the scope of Section 277 of the Constitution.
In the circumstances, the whole proceedings and of course the judgment of the Court below amount to nullity. The virus reduces the whole exercise to a non-starting point. I have no hesitation in resolving the critical issue of jurisdiction in favour of the appellant. It also renders all other issues insignificant. The appeal is meritorious and succeeds per force. It is hereby allowed.
The judgment of the Court below in appeal number SCA/KBS/JG/29/2015 delivered on November 9, 2016 is accordingly struck out. The appeal from the decision of the Upper Sharia Court Jega delivered on 9th November, 2016 is hereby referred to the High Court of Kebbi State for determination.
The Appellant is entitled to costs assessed at N50,000.00 against the Respondent.
AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading the draft copy of the judgment of my learned brother, DR. Hussein Mukhtar, JCA. I am in agreement with my learned brother that the dispute between the parties bothers on claim of title to the disputed land and not on inheritance.
The settled and avowed position of law is that the Appellate and supervisory jurisdiction of the Sharia Court of Appeal spelt out in Section 277 (a) – (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), does not include disputes involving questions of title to land simpliciter. Authorities on this settled position are numerous. These include. ABUJA VÂ BIZI (1989) NWLR (Pt. 119) 120, MAGAJI VÂ MATARI (2014) 28 QLR (Pt 11) 181.
On this score, and the detailed reasons articulated in the lead judgment, I als find merit in this appeal and allow same. I abide the consequential orders in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, 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, the judgment of the Kebbi State Shari’a Court of Appeal, in Birnin Kebbi delivered on 9-11-2016 is void for want of jurisdiction and it is struck out. I abide by all consequential orders of Court.
Appearances:
Bello Abubakar, Esq.For Appellant(s)
The Respondent was served through Counsel Nasiru Sahabi. Esq, on 5/10/2018For Respondent(s)
