ABUBAKAR FARANSI V. HABSATU NOMA (2007)

ABUBAKAR FARANSI V. HABSATU NOMA

(2007)LCN/2333(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of April, 2007

CA/K/114/S/03

RATIO

INTERPRETATION OF THE PROVISIONS OF SECTION 277 OF THE 1999 CONSTITUTION AND SECTION 14 OF THE KEBBI STATE SHARIA (ADMINISTRATION OF JUSTICE) LAW, 2000 AS TO WHETHER THE COURT OF APPEAL HAS UNLIMITED JURISDICTION IN CIVIL AND CRIMINAL MATTERS

Section 277 of the 1999 Constitution provides as follows: “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 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000 provides as follows: “14. An Appeal shall lie from the decision of the Upper Sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal.” Now, clearly, there is a problem here. Section 277(1) & (2) clearly talk of question of Islamic personal law as the area regarding which the Sharia Court of Appeal shall be competent to decide. It requires a little bit of due diligence to recognize that the provision of section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction both in civil and criminal matter to the Sharia Court of Appeal as being clearly in conflict with the provision of section 277 of the 1999 Constitution. PER ABDULLAHI, P.C.A.

MEANING OF THE TERM “JURISDICTION”; WHAT CONFERS JURISDICTION ON THE COURT

Terms judicial power and jurisdiction are frequently used interchangeably – there is a clear distinction between the two. “Jurisdiction is defined as the power of the court to hear and determine the subject – matter in controversy between the parties. In other words – jurisdiction is the authority of the court to exercise judicial powers which is the totality of the powers a court exercises when it assumed jurisdiction to hear a case. You must first have jurisdiction before you can proceed to exercise power. The courts derive their jurisdiction from the Constitution and statutes. A court cannot even give itself jurisdiction by misconstruing a statute. See African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137. PER BA’ABA, J.C.A.

JUSTICES

UMARU ABDULLAHI Justice of The Court of Appeal of Nigeria

BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria

OLU ARIWOOLA Justice of The Court of Appeal of Nigeria

Between

ABUBAKAR FARANSI – Appellant(s)

AND

HABSATU NOMA – Respondent(s)

ABDULLAHI, P.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Sharia Court of Appeal, Kebbi State. The matter was started before Gwandu, Upper Sharia Court, Kebbi State.

The respondent in this appeal sued the appellant, praying the court to order the appellant to transfer her father’s farm in his possession to her.

The evidence as contained in the record indicated that infact the farm land now in dispute belonged to the father of the respondent, who handed over the farm, when he was going for further studies to the father of the appellant. The appellant denied the claim of the respondent.

At the end of the trial, the trial Upper Sharia Court, gave judgment in favour of the respondent and ordered for the transfer of the farm land to her.

The appellant was not happy with the decision of the Upper Sharia Court and he appealed to the Sharia Court of Appeal, Argungu Zone, Kebbi State. The Sharia Court of Appeal, heard the appeal, but at the end affirmed the decision of the upper Sharia Court and dismissed the appeal. The appellant was still not satisfied and filed this appeal before this court.

On 19/1/05, the counsel for appellant, by leave of the court filed three (3) additional grounds of appeal and abandoned the original grounds of appeal. The appeal was argued on the additional grounds. They read as follows:

“Ground 1 – The Khadis of the Sharia Court of Appeal, Kebbi State erred in law when they entertained and determined this appeal relating to title to farmland when it is not a dispute of inheritance of the farmland between the parties.

Particulars of Error

(a) The jurisdiction of the Sharia Court of Appeal, Kebbi State is governed by the provisions of section 277 of the 1999 Constitution of the Federal Republic of Nigeria.

(b) The Sharia Court of Appeal, Kebbi State has no jurisdiction to entertain suits relating to title to land. Ground 2 – The Khadis of the Sharia Court of Appeal, Kebbi State erred in law when they held that:

“Based on the foregoing, we at the Sharia Court of Appeal, Kebbi State, Argungu Zone, having affirmed the decision of the Upper Sharia Court Gwandu, who (sic) has confirmed the disputing (sic) farm to Habsatu Noma. The decision is in accordance with the principles of Islamic Law.”

When the suit was at the trial Upper Sharia Court Gwandu was incompetent and the order of the trial court on 16/4/2002 for the measurement of the farmland was not effected.

Particulars of error

(a) The farmland in dispute is not identified and no witness stated the location let alone the boundaries.

(b) The respondent did not make clear statement of her complaint followed by a proper description of the farmland which she claimed.

(c) Kebbi State Area Court (Civil Procedure) Amendment Rules, 1980 requires plaintiff in a land matter to state the boundaries and location of the land for the action to be competent.

Ground 3 – The Khadis of the Sharia Court of Appeal, Kebbi State erred in law when they held that:-

“But the criticism on the other 2 witnesses (Umaru Galma and Gwasso) will not prevent the acceptance of their testimonies”.

When their testimonies are in conflict with the following statement of the respondent before the Sharia Court of Appeal, Kebbi State:

“When we turned to the respondent, Hafsatu, she denies what the appellant said as not true. This farm belonged to her father M. Usman, he entrusted the farm to Moti the mother of Dan Gwaggo when he is going for studies

…. And she gave it to the appellant father to work there- in …”

Particulars of Error

(a) The witnesses competency to testify were properly impeached or challenged.

(b) The witnesses evidence that respondent’s father entrusted the farmland in dispute to the father of the appellant contradicts the statement of respondent before the Sharia Court of Appeal, Kebbi State.”

Arising from the three grounds of appeal, the appellant formulated three issues for determination. The appellant also filed a reply brief. The counsel for appellant adopted the argument in his appellant’s brief as well as the reply brief.

For the purpose of clarity, I think I should set out the three issues formulated by the counsel for the appellant. They read as follows:

“1. Whether the Sharia Court of Appeal has jurisdiction to entertain and determine the appeal relating to disputes regarding title to land in view of the provision of section 277 of the 1999 Constitution? – Additional ground 1.

2. Whether the Sharia Court of Appeal proceeding and judgment are right in law and not a nullity. Having entertained an appeal from an incompetent suit filed at the trial Upper Sharia Court? – Additional ground 2

3. Whether the Sharia Court of Appeal rightly affirmed the decision of the trial Upper Sharia Court? – Additional ground 3.”

In arguing issue one, the counsel for appellant submitted that the jurisdiction of the Sharia Court of Appeal, Kebbi State is governed by the provision of section 277 of the 1999 Constitution of the Federal Republic of Nigeria and that clearly the jurisdiction does not extend to matters relating to title to land or trust of farmland as in the instant case. He cited and relied on the cases of Jibir Mallam Gambo v. Jaura Hamadbi Tukuji (1997) 10 NWLR (Pt.526) 591 at 600; Usman v. Kareem (1995) 2 NWLR (Pt.379) 537. Counsel pointed out that, the fact that appellant denied respondent’s claim clearly put the claim of title of land in issue, which is clearly outside the jurisdiction of the Sharia Court of Appeal, Kebbi State. Counsel maintained further that section 14 of the Kebbi State Sharia (Administration of Justice) Law 2000, which came into force on the 1st day of December, 2000 could not confer such jurisdiction to the Kebbi State Sharia Court of Appeal.

On the other hand, counsel for respondent adopted the issues formulated by the counsel for appellant. On issue (1), the counsel submitted that the provision of section 277 of the 1999 Constitution was not infringed by the provision of section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000 that in fact, the section is in conformity with the provisions of section 277. The submission of the counsel is premised on the provisions of section 277(1) of the 1999 Constitution. He maintained that the argument of counsel for appellant was misconceived.

Before I go further, I think it will be of help for the purpose of clarity, to refer to the provision of section 277 of the 1999 Constitution as well as the provision of section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000.

Section 277 of the 1999 Constitution provides as follows:

“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 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000 provides as follows:

“14. An Appeal shall lie from the decision of the Upper Sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal.”

Now, clearly, there is a problem here. Section 277(1) & (2) clearly talk of question of Islamic personal law as the area regarding which the Sharia Court of Appeal shall be competent to decide. It requires a little bit of due diligence to recognize that the provision of section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction both in civil and criminal matter to the Sharia Court of Appeal as being clearly in conflict with the provision of section 277 of the 1999 Constitution.

The counsel for respondent, added more confusion to his thinking, when he placed reliance on the provisions of sections 4(1), 6(1) and 38(1) of the 1999 Constitution and came with misconceived idea that these provisions could provide the foundation for his misconception.

These sections provide as follows:

“Section4 – (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution,

(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”

Section 6 (1) – The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5)(a) to (i) of this section shall be the only superior courts of record in Nigeria: and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.

(4) Nothing in the foregoing provisions of this section shall be construed as precluding –

(a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

(b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being.

“Section 38(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”

It is clear that these constitutional provisions relied upon by the counsel for respondent, would offer no help whatever to the counsel to maintain that section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000 is not in conflict with the provision of section 277 of the 1999 Constitution.

It is no surprise that the counsel for the appellant, in his reply brief went a step further to show that the argument of the counsel for respondent is misconceived, because to accept that argument will tantamount to conceding that Kebbi State House of Assembly has legislative powers to amend the provisions of the 1999 Constitution to confer jurisdiction to the Sharia Court of Appeal, Kebbi State against the clear provision of section 277 of the Constitution.

Counsel for appellant maintained that section 277(1) of the 1999 Constitution allowed State Law, like the Kebbi State Law to confer additional jurisdiction on the Sharia Court of Appeal 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 the section.

Counsel for appellant finally submitted that by virtue of the provision of section 1 – (3) of the 1999 Constitution, any law which is inconsistent with provisions of the Constitution shall to the extent of the inconsistency be void.

The section provides as follows:

“1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.

I agree with the learned counsel for appellant that section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction in civil and criminal matter to the Sharia Court of Appeal Kebbi State is manifestly inconsistent with the express provision of section 277(1) and (2) of the 1999 Constitution and by the provision of section 1(3) of the 1999 Constitution is null and void to the extent of its inconsistency. Consequently, the issue for determination in this appeal based on a claim of title to land can only be properly determined on appeal by the Kebbi State High Court. It is my judgment that the appeal has merit and it is accordingly allowed. The appeal is hereby directed to be filed before the High Court of Kebbi State which is the proper forum.

The other two remaining issues formulated are no longer relevant and are accordingly struck out.

I make no order as costs.

BA’ABA, J.C.A.: 1have had the opportunity of reading in draft the judgment just read by my learned brother, Umaru Abdullahi, CON, PCA. I entirely agree with the judgment. Accordingly, I too allow the appeal and abide by the consequential order contained therein. However, I wish to add few words of mine just for the purpose of emphasis.

The Sharia Court of Appeal of a State derives its jurisdiction from the provisions of section 277 of the Constitution of the Federal Republic of Nigeria, 1999, reproduced in the leading judgment. The provisions of section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:

“1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

1(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of inconsistency be void.”

It therefore follows that section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction in civil and criminal matters to the Sharia Court of Appeal, Kebbi State is clearly inconsistent with the provision of section 1(1) and (3) of the Constitution of Federal Republic of Nigeria, 1999.

SANUSI, J.C.A.: I had the advantage of reading before now the judgment prepared by my learned brother, Honourable Umar Abdullahi, PCA. My noble lord had painstakingly treated all the salient issues canvassed and has arrived at a conclusion which is also agreeable to me.

However, just for the purpose of emphasis, I wish to chip in few words of mine on issue of jurisdiction of Sharia Court of Appeal with regard to title of land which is the core point canvassed by o learned counsel to the parties in this appeal.

As stated in the leading judgment of my learned brother, the subject matter of the suit before the two lower courts is title to farm land on which both courts adjudicated.

Let me start by saying that issue of jurisdiction of Sharia Court of Appeal of a State has since 1986 been settled by this penultimate court in plethora of decided authorities. The well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia Courts (as they are now being named or called in some States adopting Sharia Legal system), the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjudicate under the provisions of section 277(1) and (2) of 1999 Constitution or section 242 of the Constitution of the Federal Republic of Nigeria 1979. See the case of Garba v. Dogonyaro (1991) 1 NWLR (Pt. 165) 102; Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537; Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722; Maida v. Modu (2000) 4 NWLR (Pt. 651) 99.

As noted by me, a close and dispassionate look at the claims presented before the Gwandu Upper Area Court, it in no way relates to Islamic Personal Law on which the Sharia Court of Appeal of Kebbi State can adjudicate. The lower coul1 therefore going by the provision of section 277(1) and (2) of the 1999 Constitution, lacks jurisdiction to hear and determine the appeal as it did. Again, section 1 of the 1999 Constitution which overrides any law states that any law that runs and violent to the provisions of the constitution is null and void, to the extent of inconsistency. For that reason I am inclined to agree with the submission of the appellant’s counsel, that section 14 of the Kebbi State (Administration of Justice) Law, 2000 which gave Sharia Court of Appeal unlimited jurisdiction in civil and criminal matters is therefore void to the extent or inconsistency with the provision of section 277 of the 1999 constitution.

Thus, for the fuller and more detailed reasons given in the lead judgment of my learned brother, I also see merit in the appeal. It is accordingly allowed by me. I abide by the consequential orders made in the lead judgment.

JEGA, J.C.A.: I have had the privilege of reading in advance the judgment just rendered by my teamed brother, Abdullahi, PCA. I agree with his reasoning and conclusions. The appeal has merit and it is accordingly allowed. The appeal is hereby directed to be filed before the High Court of Kebbi State which is the proper court to determine the appeal.

I make no order on costs.

ARIWOOLA, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Abdullahi, (CON) PCA. I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed.

The matter originally began from Gwandu Upper Sharia Court. Kebbi State. The Sharia Court of Appeal affirmed the decision of the trial coul1leading to this appeal.

The most important of the issues formulated for determination is “whether the Sharia Court of Appeal has jurisdiction to entertain and determine the appeal relating to disputes regarding title to land in view of the provision of section 277 of the 1999 Constitution”

The issue of jurisdiction is a very fundamental one as it goes to the root of the case and affects the competence of the court. As a result it can be raised at any stage of the proceedings, either before the trial court or on appeal and by either party to the case. It can even be taken suo motu by the court. See; Oloriode v. Oyebi (1984) 5 SC, 260 at 282, (1984) 1 SCNLR 390, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, (1983) 6 SC 158, Senate President v. Nzeribe (2004) 41 WRN 39 at 60; (2004) 9 NWLR (Pt. 878) 251.

It is a fundamental principle that jurisdiction of a court is determined by the plaintiff’s claim. See; Izenkwe v. Nnadozie (1953) 14 WACA 361 at 361, Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51, Central Bank of Nigeria v. SAP (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) 152 at 176. In otherwords, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. See; Western Steel Workers v. Iron & Steel Workers Union (2004) 7 WRN 58; (1987) 1 NWLR (Pt. 49) 284, Alhaji Tukur v. The Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; (1989) 20 NSCC (Pt. III) 225. Integrated Timber & Plywood Products Ltd. v. Union Bank of Nigeria Plc (2007) 1 WRN 117 at 133 – 134; (2006) 12 NWLR (Pt. 995) 483.

The plaintiff/respondent’s claim before the trial court is title to a farm land allegedly in possession of the defendant/appellant.

It is clear that Sharia Court of Appeal derives its competence from section 277 of 1999 Constitution of the Federal Republic of Nigeria. When the said enabling provision is read carefully, it is clear that it excludes issue of title to land from the areas in which the Sharia Court of Appeal shall exercise jurisdiction. There is no doubt that the court which should have taken the appeal was the High Court of Kebbi State but not Sharia Court of Appeal. The Sharia Court of Appeal therefore lacked the required competence to hear and determine the appeal in this case from the Upper Sharia Court. Where a court assumed jurisdiction, tried and determined a matter over which the law excludes its jurisdiction, the entire proceedings before the said court amounts to nullity no matter how well conducted or decided the case may be. See; Madukolu v. Nkemdilim (1962) 1 All NLR 587, (2001) 46 WRN 1; (1962) 2 SCNLR 341, Equity Bank of Nig. Ltd. v. Halilco Nig. Ltd. (2006) 33 WRN 75; (2006) 7 NWLR (Pt. 980) 568, Ekulo Farms Ltd. & Anor v. Union Bank of Nig. Plc (2006) 6 SCM 78 at 91 – 92. You cannot put something on nothing and expect it to stay. It will fall. See; Macfoy v. U.A.C. (2000) 16 WRN 185, (1961) 3 All NLR 1169.

For the above reason and the more detail reasons given in the lead judgment, I also hold that this appeal has merit and it is allowed.

I abide by the consequential orders in the lead judgment including the order on costs.

Appeal allowed.

Appearances

U. A. Mohammed, Esq.For Appellant

AND

Respondent absent and unrepresentedFor Respondent