AHMADU IBRAHIM V. MUSA TURAKI
(2012)LCN/5408(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/J/244/2006
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
The law is trite as it is very elementary to state that as has been held times without number, the question of jurisdiction is sine qua non and without which proceedings no matter how well conducted would ab initio be a nullity. Jurisdiction is conferred by constitution and is therefore statutory in nature. The jurisdiction of a court to hear and determine a matter is the breath or authority of the court to adjudicate on a case. PER CLARA BATA OGUNBIYI, J.C.A.
JURISDICTION: CONDITIONS WHICH CONFERS JURISDICTION ON A COURT
The celebrated authority in the case of Madukolu V. Nkemdilim (Supra) is sacrosanct and well spelt out wherein the conferment of jurisdiction on a court is subject to the following conditions:
- a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
- b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
- c) The case comes before the court initiated by the due process and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The same principle was applied in the latter cases of A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt III) 552: Hi-Flow Farm Industries Nig. Ltd. V. University of Ibadan (1993) 4 NWLR (Pt 290) P719 at 732-733 and also Magaji V. Matari (2000) 8 NWLR (Pt 670) 722 at 735. PER CLARA BATA OGUNBIYI, J.C.A.
JURISDICTION: WHAT DETERMINES THE JURISDICTION OF A COURT TO DETERMINE A MATTER
The law is well laid down that the jurisdiction of a court to hear and determine a matter is predisposed by the claim of the plaintiff before it; and afortiori it is the claim therefore that dictates the jurisdiction of the appellate court. The principles enunciated by the Supreme Court authority in the case of Magaji V. Matari (2000) 8 NWLR (Pt 670) P.722 at 734 is in support. The court therefore has the duty to identify and decide issues for determination based on the facts of the case placed before it. PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
AHMADU IBRAHIM Appellant(s)
AND
MUSA TURAKI Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The suit leading to this appeal was commenced by one Hajiya Zainab Ahmadu as original plaintiff before the Potiskum Upper Area Court, Potiskum claiming for 2 houses belonging to one Hajiya Hauwa (now deceased) being part of inheritance properties of the deceased under the custody of the respondent herein. The original plaintiff on the first day of appearance sought for and was granted that she should subsequently be represented by Ibrahim Ahmadu, her son, whose name should be substituted for her own. From then on, the appellant took over the proceedings up to this court.
The trial court after hearing the parties and their witnesses declared the 2 houses claimed (i.e. one in Potiskum and one in Gombe) as inheritable properties for distribution to the heirs of the deceased, Hajiya Hauwa.
The defendant being dissatisfied with the judgment of the Upper Area Court Potiskum as stated above appealed against same to the High Court of Justice, Yobe State. The said High Court in its appellate jurisdiction (1) overruled the argument of the respondent before it on the issue of jurisdiction and proceeded to allow the arguments of counsel for the parties. The counsel to the respondent before the High Court canvassed arguments that the High Court of Justice locked the jurisdiction to hear the appeal. The court in its judgment overruled the argument by the respondent before it on the issue of jurisdiction and proceeded to allow the appellant’s appeal, set aside the judgment of the trial court and declared that the houses were properly given out to the appellant before it. The judgment was delivered on 21st day of June, 2002.
The original plaintiff now appellant being dissatisfied with the judgment of the High Court of Justice, Yobe State, with the leave of this court made on 5th day of June 2006 in motion No. CA/J/236M/04 filed his notice and grounds of appeal containing two grounds of appeal and dated 9th January, 2006. The said grounds of appeal reproduced without their particulars are as follows:
Ground 1
The Judgment is against the weight of evidence.
Ground 2
The High Court of Justice Yobe State sitting in its appellate jurisdiction erred in law when it held that it has jurisdiction to hear and determine the respondent’s appeal before it when same was based purely on succession to landed properties.
Particulars of Error (a) – (b) are Supplied
In compliance with the rules of court, parties filed and exchanged briefs of arguments. The appellant’s brief was dated 4th December, 2006 and filed on the 13th December, 2006. That of the respondent which was also dated 1st February, 2007 was filed on the some day.
The appeal came up for hearing on the 16th April, 2012 and in the absence of both counsel or parties but with briefs having been exchanged, same were deemed argued and the appeal reserved for judgment.
From the two grounds of appeal one issue which was formulated on behalf of the appeal is as follows:
Whether the High Court of Justice of Yobe State has the jurisdiction to entertain the respondent’s appeal before it having regard to the claim of the parties at the trial court vis-Ã -vis the provisions of section 272 and 277 of the Constitution of the Federal Republic of Nigeria 1999?
Alternatively:
Which court, the High Court of Justice of Yobe State or the Sharia Court of Appeal, Yobe State has the jurisdiction to entertain the appeal of the respondent herein against the decision of the Upper Area Court?
The two issues formulated on behalf of the respondent are also very closely related to that of the appellant and are as follows:
a) Is the High Court of Justice of a State (sitting in its appellate jurisdiction), competent to entertain an appeal challenging the territorial jurisdictional competence of a lower court i.e. the Upper Area Court Potiskum?
b) Does the provision of section 277 of the Constitution of the Federal Republic of Nigeria 1999 provide exclusive jurisdiction to the Sharia Court of Appeal with regards to the subjects therein irrespective of any circumstances.
Alternatively
Can the issues determined by the lower Court in the appeal brought before it be said to be issues of Islamic personal law stricto-sensu?
Submitting to substantiate the issue posed on jurisdictional competence, the learned appellant’s counsel readily relied on Sections 272 and 277 of the Constitution of the Federal Republic of Nigeria 1999. That while the provision of Section 272 of the Constitution is therefore limited by the provisions of Section 251 and other provisions of the constitution, the provision of Section 277 limits the jurisdiction of the Sharia Court of Appeal to questions involving Islamic personal law as enunciated in subsection (2). That a clearer limit now appear as regards the jurisdiction of the High Court from the opening sentence of section 272 that says “subject to the provisions of section 251 and any other provisions of this constitution, the High Court of a state shall have jurisdiction to…” That in view of section 251 and any other provision of the constitution, the High Court of a state no longer has unlimited jurisdiction. The counsel in his submission restated in detail the claim by the appellant as the plaintiff at the trial court and submitted that the question of validity or otherwise of a gift where the donor or deceased person is a Muslim is an issue of Islamic personal law which is within the jurisdiction of the Sharia Court of Appeal of the State. That the parties prosecuted their respective cases on Islamic personal law. That the lower court was therefore in error as per its holdings at page 11 of the record of appeal. That the High Court of a state has no jurisdiction to hear an appeal from the decision of Muslim, Sharia or Islamic Court in which the issue or claim is based on Islamic personal law and more specifically those that were listed in section 277(2) of the 1999 Constitution. Reference in support was cited by counsel to the case of Ziza V. Mamman (2002) 5 NWLR (Pt 760) 243 at 265 a decision of this court based on similar provisions of the 1979 Constitution. A further authority of the apex court in the case of Usman V. Umaru (1992) 7 NWLR (Pt. 254) 377, (1992 SCNJ Part II per Ogundare JSC was also cited in confirmation.
Learned counsel again related closely to another decision of this court in the case of Garba V. Dogonyaro (1991) 1 NWLR (Pt 165) 102 at 110 wherein it was held that the Sharia Court of Appeal has jurisdiction to determine any question of Islamic Law regarding a Wakf, Will or Succession where the endower, donor, testator or deceased person is a Muslim. The learned counsel urged that Section 16 of the Court of Appeal Act be invoked by this court and strike out the appeal by the respondent brought before the High Court of Yobe State in Appeal No. YBS/DT/65A/2001.
The learned counsel urged that this appeal be allowed and the judgment of the High Court of Justice Yobe State delivered 21st day of June, 2002 be set aside on the ground of lack of jurisdiction. The submission by the respondent counsel would be taken together on the two issues he raised which are interrelated.
In response to the submission made by the appellant’s counsel therefore it was argued on behalf of the respondent that where it is discovered that the trial court lacked the jurisdiction to entertain a matter as in the case at hand. That the acts, actions and pronouncement of the court would all amount to a nullity. That the High Court of Justice Yobe State (sitting in its appellate capacity) had the jurisdiction to determine the territorial jurisdiction of the trial court being the upper Area Court Potiskum Yobe State. Counsel also related copiously to the provisions of Section 251(1), 272(1) and 277(1) of the Constitution 1999 and submitted without ambiguity that by section 251(1) of the constitution exclusive jurisdiction in the enumerated situation belong to the Federal High Court.
That no such situation can be said to have been created in respect of section 277 of the constitution. That while counsel fully associates himself with the principles as enunciated in the case of Magaji V. Matari (2000) 8 NWLR (Pt 670) P 722 at 734. That a court has a duty to identify and decide issues for determination.
That having regard to the plaintiff’s claim before the trial court, on the authority of Aboshun V. Ugah (1993) 2 NWLR (Pt 278) 752 at 759, the court must identify and decide what issues are for determination. That the issue falls within the jurisdiction of scope of the High Court as envisaged by Section 277(1) of the Constitution.
That for a valid gift of more than 1/3 of the total property of the deceased or its value to sustain, it must be consented to by the remaining heirs. Reference in support was made to the case of Rabiu Salihu V. Fatima Gogo Shaw Law reports Volume 1 (1961-1989) Page 11. Counsel also associated fully with the principles enunciated in the case of A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. III) P.552 and also the case of Madukolu V. Nkemdilim (1962) 2 SCNLR P.341 on the principles determining the jurisdiction of a court. That all the requisite conditions that needed to be satisfied in the said authorities have been met in the case at hand.
Counsel urged that the appeal should in the circumstance be dismissed and the judgment of the High Court of Justice Yobe State (sitting in its appellate jurisdiction) dated 21st day of June, 2006, be upheld.
The law is trite as it is very elementary to state that as has been held times without number, the question of jurisdiction is sine qua non and without which proceedings no matter how well conducted would ab initio be a nullity. Jurisdiction is conferred by constitution and is therefore statutory in nature. The jurisdiction of a court to hear and determine a matter is the breath or authority of the court to adjudicate on a case.
The celebrated authority in the case of Madukolu V. Nkemdilim (Supra) is sacrosanct and well spelt out wherein the conferment of jurisdiction on a court is subject to the following conditions:
a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c) The case comes before the court initiated by the due process and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The same principle was applied in the latter cases of A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt III) 552: Hi-Flow Farm Industries Nig. Ltd. V. University of Ibadan (1993) 4 NWLR (Pt 290) P719 at 732-733 and also Magaji V. Matari (2000) 8 NWLR (Pt 670) 722 at 735.
At pages 11, 12 and 13 of the judgment appealed against the lower court held and said:
“Sub-section 1 of section 272 of the constitution gives the High Court of a state wife and extensive jurisdiction” and again the Court went further and said:
“We therefore conclude that the purpose and intent of section 277 of the constitution is not to confer exclusive jurisdiction on the Sharia Court of Appeal in the matters stated in that section. It will therefore be wrong for us to pronounce that the Sharia Court of Appeal has any jurisdiction, it can exercise to the exclusion of the High Court of a state. In other words, the High Court of a State has the jurisdiction to decide on matters stated in Section 277 of the 1999 Constitution as well as the Sharia Court of Appeal. The State High Court and the Sharia Court of Appeal have concurrent jurisdiction in matters stated in Section 277 of the Constitution.
Consequently, we rule that we have the jurisdiction to hear this appeal…”
The determination of the related consolidated issues raised by both parties are squarely hinged on the constitutional provisions of Sections 272 and 277 which provide for the jurisdiction of the High Court and the Sharia Court of Appeal respectively which are both statutory in nature. The reproduction of the said sections would give a better and clearer insight to the point being mode. Section 272 on the one hand for instance provides thus:
“1. Subject to the provision of section 251 and other provisions of this Constitution, the High Court of a state shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
2. The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High court of a state and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.
On the other hand, section 277 of the same constitution also provides:
“1. The Sharia Court of appeal of a state shall, in Jurisdiction, 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 proceeding 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 purpose of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –
(a) any question of Islamic personal law 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”.
By the provision of Section 6(5) of the constitution, both the High Court and the Sharia Court of Appeal are creation of the constitution which lays down the judicial Powers of the courts.
The position of the said sections would be further appreciated if read in consonance with section 251(1) of the constitution which States thus:
“251(1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction that may be conferred upon if by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters-”
The critical operative words defining the intention of the legislature in the said section is the phrase “To the exclusion of any other court”. The said phrase in other words and as rightly submitted by the learned respondent’s counsel, shows without ambiguity that exclusive jurisdiction in the enumerated situation of section 251 belong to the Federal High Court. The same situational exclusiveness is not specified in the provision of Section 277 relating to the Sharia Court of Appeal as wrongly sought to portray by the learned appellant’s counsel in respect of questions involving Islamic personal law as enunciated in sub-section (2).
The law is well laid down that the jurisdiction of a court to hear and determine a matter is predisposed by the claim of the plaintiff before it; and afortiori it is the claim therefore that dictates the jurisdiction of the appellate court. The principles enunciated by the Supreme Court authority in the case of Magaji V. Matari (2000) 8 NWLR (Pt 670) P.722 at 734 is in support. The court therefore has the duty to identify and decide issues for determination based on the facts of the case placed before it.
From the facts of the case on the claim of the plaintiff of the trial court, and also held out on its judgment, of Pages 23-27 of the record of appeal, what the court clearly identified as the issue for determination was whether or not the houses in question were actually given to the defendant, before the trial court. This finding falls squarely within the scope of jurisdiction of the High Court as envisaged by section 272(1) of the constitution and the lower court was clear cut on the question of ownership of pages 14 and 15 of its judgment of the record of appeal. Again and as rightly submitted by the learned respondent’s counsel, what was determined by the lower court bordered simply on the fundamental principles of law as specified in section 137 of the Evidence Act Cap 112 (as amended). In other words that which lays down that, he who asserts must prove.
In other words, the issue of whether or not a legally binding gift was given to the defendant before the trial court is a matter of evidence and the burden of proving same is on the plaintiff who asserts. It follows therefore that the determination of whether or not the plaintiff had discharged the burden of proof placed upon him as required by the Evidence Act cannot be said to be an issue dealing with Islamic personal law. The subject matter before the lower court was the issue of burden of proof and which was fully within the competence and jurisdiction of the lower court and consequent upon which the issue raised is hereby resolved against the appellant.
On the totality of this appeal same I hold is devoid of any merit and therefore dismissed. The judgment of the High Court of Justice Yobe State (sitting in its appellate jurisdiction) dated 21st day of June, 2006, is hereby affirmed and upheld. I shall make no order as to costs but that each party is to bear his own burden of prosecuting the appeal.
Appeal is dismissed with no order made as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the opportunity of reading in draft the Judgment read by my learned brother, Ogunbiyi, J.C.A. I entirely agree with him that the Appeal is devoid of merit.
I am in total accord that the issues before the High Court sitting in its appellate jurisdiction were within the competence and jurisdiction of the Court as contemplated by the decision in the locus classicus of Madukolu V. Nkemdilim (1962) 2 SCNLR 231. The first issue for determination was concerned with the weight to be attached to the evidence adduced before the Court, while the second issue was purely one of territorial jurisdiction of the Upper Area Court Yobe to entertain a matter which pertained to property situate in Gombe, Gombe, State.
Accordingly, I too dismiss the Appeal and affirm the decision of the High Court of Yobe State (sitting in its appellate jurisdiction). I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had a preview of the lead judgment just delivered by learned brother Clan Bata Ogunbiyi, JCA.
I fully agree with and adopt the reasoning and conclusions therein.
I too hold that this appeal is devoid of merit and same is also hereby dismissed.
Accordingly, I affirm the judgment of the Yobe State High Court and also make no order as to Cost.
Appearances
F. N. Akintola Esq.For Appellant
AND
B. M. Salihu Esq.For Respondent
