ALHAJI AMINU MUSA v. HAJIYA UMMU & ANOR (2013)

ALHAJI AMINU MUSA v. HAJIYA UMMU & ANOR

(2013)LCN/6000(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of March, 2013

CA/S/29/2011

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

ALHAJI AMINU MUSA Appellant(s)

AND

HAJIYA UMMU & ANOR Respondent(s)

RATIO

DEFINITION OF AN APPEAL

An appeal is an invitation to a higher court to review the decision of a lower court to find out whether on the facts before it and the applicable law that court arrived at a correct decision. It is a continuation of an original case and not an inception of a new one. See BIBENI V MUSA (2008) ALL FWLR (PT 419) 54 at 558. PER AWOTOYE, J.C.A.

WHETHER OR NOT AN APPELLATE COURT UNDER ISLAMIC LAW IS RESTRICTED TO ISSUES RAISED BY PARTIES

An appellate court under Islamic Law is not restricted to issues raised by parties, unlike the common law system. See DAUDA V ASABE (1998) 1 NWLR (PT 532) 102 at 109; AHMADU SIDI V ABDULLAHI SHA’ABAN (1992) 4 NWLR (PT.233) 113. According to OKUNOLA JCA in SHA’ABAN’s case (supra), “The judge can without being called upon to do so, consider the relevant law and apply it. At the appellate court stage, the appellate court can rehear or retry the case in whole or in part.” PER AWOTOYE, J.C.A.

TUNDE O. AWOTOYE, J.C.A.:(Delivering the Leading Judgment): This is the judgment in respect of the appeal filed vide Notice of Appeal dated 27/1/2011 against the judgment of the Sharia Court of Appeal sitting in Sokoto. The decision appealed against was delivered on 31/12/2010 in favour of the 1st Respondent in appeal No CA/SK/SCA/12/2011.

The plaintiff at the court of first instance was Hajiya Hadiza Buzuwa. Her claim before the Tudun Wada Lower Sharia Court reads thus:

“I am seeking this court to bear witness to and record the gift of a house that I have given to my daughter Hajiya Ummu Ibrahim:

The house is located in Kofar Kware and also length of 105 feet from west to east and a breadth of 118 feet; it has boundaries with Umaru Madugu on the west; BASHIR Musa on the east; Mallam Buhari Yahaya on the South and a main road on the north.

The house contains 30 rooms, 3 kitchens and 4 Toilets. I, Hajiya Hadiza Buzuwa, have given it free as a gift to my daughter Hajiya Ummu Ibrahim. I gave the entire house to her except the room which I am presently occupying.
It is for this reason that I am pleading with this Court to recognize and be witness to this gift and also record it and issue Hajiya Ummu Ibrahim with a certificate.”

After the judgment of the Lower Sharia Court, the plaintiff appealed to the Upper Sharia Court, the daughter of the plaintiff, Hajiya Ummu, later appealed to the Sharia Court of Appeal.
The Sharia Court of Appeal on hearing the appeal gave judgment as follows:
“Based on what transpired above and the reasons which we gave above, we of this Sharia Court of Appeal, Sokoto State, Sokoto hereby quash the judgment of the Upper Sharia Court 1 Sokoto which validated the agreement on taking back a house which has been given out as gift because the judgment is contrary to Islamic law. We quash it. We uphold the ruling of the Lower Court Tudun Wada Sokoto which validated the gift of a house which Hajiya Hadiza Buzuwa made to her daughter Hajiya Ummu Ibrahim. The house measures 105 feet West – East; 118 feet South-North and borders Umaru Madugu on the West; Bashar Musa on the East; Mallam Buhari on the South and on the North a main Road. We uphold this ruling because it is in accordance with Islamic Law.
We accept the appeal!”
The appellant aggrieved by the decision filed a notice of appeal containing four grounds of appeal.

The said grounds of appeal (excluding the particulars) are:-

“GROUND ONE
The court below erred in Law when it held suo moto without given parties the opportunity of addressing it on same raised held that the Upper Sharia Court I Sokoto lacked the requisite jurisdiction to entertain the appeal of the 1st Respondent before it based on the fact that there was no judgment that was delivered by the trial court and this has occasioned a miscarriage of justice.

GROUND TWO
The Court below erred in law and prejudiced the right for hearing of the appellant as constitutionally guaranteed under section 36(1) of the 1999 constitution when it failed to take into consideration even after the joining of the appellant as a party to the appeal before the court below, explanations made by the appellant relating to the purchase of the properties in dispute and evidence signifying same and never gave consideration to same before delivering its judgment against the appellant and this has occasioned a miscarriage of justice.

GROUND 3
The Court below erred in law when it never made any pronouncement on the status of the properties purchased by the appellant from the 2nd & 3rd Respondents and this has occasioned a miscarriage of justice.

GROUND 4
The judgment of the court below was against the weight of evidence.”

After transmission of record of appeal, the appellant and the 1st Respondent filed and exchanged briefs of argument.

The amended appellant’s brief of argument was deemed filed on 28/11/2012. It was settled by Ibrahim Abdullahi, appellant’s solicitors. Learned counsel formulated 3 issues for determination to wit:-

“a) Whether the court below was right when it Suo Moto raised the issue of jurisdiction of the Upper Sharia Court 1 Sokoto when the parties were not given the opportunity of addressing it on the issue so raised. (Distilled from ground 1).

b) Did the court below not prejudiced the constitutional right to fair hearing of the appellant when after joining the appellant as a Co-Respondent, it never made use of the explanation of the appellant nor determine the status of the property in dispute vis a vis the appellant position in relation to the property in dispute? (Distilled from grounds 2 & 3).

c) Was the judgment of the Court below right in law? (Distilled from ground 4).”

On issue No 1, learned appellant’s counsel submitted that the Upper Sharia Court suo moto raised the issue of jurisdiction without affording the parties opportunity to address on it. He cited AMERICAN INTERNATIONAL INSURANCE CO V CEEKAY TRADERS (1981) 5 SC 110, AJAU V ASHIRU & 3 ORS (1973) 1 SC 23 and some other cases.

Learned appellant’s counsel submitted further that the procedure by which the court below in the absence of any application suo moto raised the issue of jurisdiction of Upper Sharia Court vis-Ã -vis that of the trial court on ground 2 of the grounds of appeal was irregular. He submitted that the proper procedure would have been to re-open the appeal and give counsel on both sides and the 1st Respondent the opportunity to address it on the point suo moto raised. He relied on COLE V MARTINS (1968) 1 ANLR 161 at 163.
He urged the court to resolve the issue in favour of the appellant.

On issue No 2, learned counsel submitted that the court below did not adequately consider the issue formulated by the appellant but merely embarked on an expedition which did not reflect the issue formulated by it. He relied on OYEWALE V OYESORO (1998) 2 NWLR (PART 539) 663.

Learned counsel argued further that the judgment of the court below was bereft of all the elements of fairness and dispassionate considerations of the issues formulated for the determination of the court below. He urged the court to resolve this issue in favour of the appellant.

On issue No 3, learned appellant’s counsel submitted that it was an error on the part of the lower court to state that there was no judgment given by the trial court in respect of which an appeal could be filed. He stated that the confirmation of the gift made by the trial court was a decision under Sec 318 (1) of the constitution. He urged the court to resolve this issue in favour of the appellant.
He finally urged the court to allow the appeal.
The 1st Respondent’s brief was deemed filed on 17/1/2013. It was settled by M. A. Sambo, learned counsel for 1st Respondent.
Learned counsel adopted the three issues formulated for determination by appellant.

On issue No 1, learned counsel referred to Ground No 5 at page 16 of record of appeal and submitted that the court below was right on the issue of jurisdiction. He added that under Islamic Law, appellate courts were not restricted to the grounds or issues raised by the parties. He relied on AHMADU SIDI V. ABDULLAHI SHA’ABAN (1992) 4 NWLR (PT 233) 113 at 118.
He submitted further that a single judge of the Upper Sharia Court could not sit as an appellate court, on appeal. He urged the court to resolve this issue in favour of the 1st Respondent.

On issue No 2, learned counsel submitted that all issues raised by the appellant were considered by the court below. He added that the appellant never made any appeal/prayer or claim against the 1st Respondent or any of the respondents before the court below.

On issue No 3, learned Respondents’ counsel submitted that the judgment of the court below was right and in accordance with the provision of the law. Learned counsel submitted that the decision of the Upper Sharia Court 1 Sokoto was not validly made because it was decided on by one judge instead of two judges. He added that the parties were not heard before judgment was delivered by the Upper Sharia Court No 1, Sokoto, hence there was no judgment. He referred to NDE V FOLASAYO & 2 ORS (2008) 35WRN 41 at 47, NITT ZARIA V ALHAJI DANGE (2008) 28 WRN 124 at 130.
He finally urged the court to dismiss the appeal.

It is pertinent at this juncture, to state that 2nd Respondent who was legally represented during the hearing of the appeal never filed any brief of argument but through his counsel, conceded the appeal.

I have carefully considered the submission of learned counsel on both sides as well as the contents of the record of appeal transmitted. An appeal is an invitation to a higher court to review the decision of a lower court to find out whether on the facts before it and the applicable law that court arrived at a correct decision. It is a continuation of an original case and not an inception of a new one. See BIBENI V MUSA (2008) ALL FWLR (PT 419) 54 at 558.

It is in the light of the above principles of law that I will view the appeal. I have deeply considered the issues as formulated by the parties in this appeal. I am of the respectful view that the following sole issue can adequately cover the issues raised:

Whether or not the Sharia Court of Appeal Sokoto was right in law when it quashed the judgment of the Upper Sharia Court 1 Sokoto and allowed the appeal of the 1st Respondent.

The Sharia Court of Appeal on pages 22-24 of the record of appeal gave reason for its judgment thus:

“The 2nd ground of appeal is that the Court made a ruling on an agreement between the appellant and her mother but when the agreement was supposedly reached, her mother was in hospital. As to this we observe that Upper Sharia Court I has the sole jurisdiction of hearing appeals from Lower Sharia Court but it does not have the jurisdiction of entertaining a case at first instance. However, this case which he tried was supposed to be an appeal but it was not an appeal but a fresh case. This is because in the copies of proceedings of Lower Sharia Court Tudun Wada, there was no ruling on retrieval of house which was given out as gift so no appeal can be entered on that issue.

Also there is no reason for appeal because there was no previous judgment so the USC I Sokoto erred by entertaining the case as there was no judgment by a lower court so it lacked jurisdiction to entertain a case. This happened because of the unfortunate ignorance of the Court. There was no judgment on retrieval of house from lower Sharia Court Tudun Wada and there was no issue of retrieving the gift of house in the Lower Court. The issue of validating a gift was the case in the Lower Court and the person who initiated the case, Hadiza Buzuwa was the same person who sought the Court to be witness to and validate the gift which she made to her daughter herself and she confirmed it. The court confirmed the gift as it was asked to do. We have not seen any point at which she went back to the Court to say she had decided to take back her house which she had given to her daughter so there was nothing the Court had to rule on not to talk of entering an appeal. Based on the rule of law, an appeal Court has no jurisdiction to entertain any case which has no judgment from a lower Court. There was no issue of taking back a gift of house from the Lower Court so the ruling of USC 1 Sokoto in this appeal on the agreement reached between the disputing parties has no substance in law so we hereby quash it. In this kind of case there is no jurisdiction to pass this kind of judgment.”

On examination of the record of proceedings before Tudun Wada Lower Sharia Court, it is clear that it was the claim of the plaintiff that the court granted. If the plaintiff wanted the decision set aside she ought to have applied to the same court to apply for a setting aside of the said judgment she could not do so on appeal as she was not aggrieved by the decision. It was her claim that was granted by the Tudun Wada Lower Sharia Court. See BIBENI V MUSA (supra) she could not in law reinstitute a fresh case on appeal before the Upper Sharia Court I Sokoto. Clearly, the Upper Sharia Court had no jurisdiction to have given the following judgment on page 8 of record of appeal.

“Based on what transpired above concerning this appeal in which Hajiya Hadiza gave a gift of house to her daughter Ummu Ibrahim and later returned by herself to say she no longer wished to sustain the gift and wanted to take back the house through an appeal but by grace of Allah they entered into an agreement between them; she was the one who pleaded with her daughter for a truce and the daughter agreed to give out a part of the property which Hajiya Hadiza had given to her, we of this Court accept the agreement and uphold it as valid in accordance with the provisions in samaruddani P.c 22 which says that an agreement is valid when no one is cheated.

Right of Appeal

There is right of appeal to any party who is not satisfied to appeal to Sharia Court of Appeal, Sokoto within 30 days of this date.”

The Sharia Court of Appeal was therefore in my respectful view right in law to have allowed the appeal of the 1st Respondent and upheld the ruling of the Lower Sharia Court Tudun Wada, Sokoto.

The appellant in this appeal had contended that the Sharia Court of Appeal Sokoto lacked jurisdiction to have suo moto raised the issue of jurisdiction of the Upper Sharia Court 1 Sokoto when the parties were not given the opportunity of addressing it on the issue.
In the first place, this contention is not supported by the record of appeal.
Any person challenging the correctness of the record must first formally impeach the record of proceedings. If this is not done, it is not open for the appellate court to speculate that other things happened in the trial court which were not recorded in the record of proceedings. See OGLI OKO MEMORIAL FARMS LTD & ANR V NIGERIAN AGRICULTURAL AND COOPERATIVE BANK LTD & ANR (2008) 34 NSCQR PT II 157.

From page 16 of the record of appeal, one of the grounds of appeal of Hajiya Ummu to the Sharia Court of Appeal was ground 5 which reads:

“USC I Sokoto erred by treating the case as an appeal because the first court did not conduct a trial; it only acted as a witness and recorded what it witnessed and so the issue of jurisdiction does not arise.” There is no question of the issue of jurisdiction being raised by the court below suo moto as clearly the appellant raised the issue from the above ground of appeal.
What is more, the Sharia Court of Appeal is not limited by the grounds or issues raised by the parties. See DAUDA V ASABE (supra).
It has also been contended on behalf of the appellant that the court below did not consider the evidence of the appellant on the sale of the property to him. The answer to this is that such evidence is a stranger on the records of the appellate court since it did not arise from the court of first instance. See ABINABINA V ENYIMADU 12WACA 171; DWEYE & 2 ORS V IYOMAHAN & 3 ORS (1983) 8 SC 76.
An appeal is a complaint against the decision of a trial court. In the absence of such a decision, there cannot possibly be an appeal against what has not been decided against a party. See BABALOLA V STATE (1989) 4 NWLR (PT 115) 264; OREDOYIN V AROWOLO (1989) 4 NWLR (PT 114) 172. The evidence complained about did not arise from the decision of the Tudun Wada Lower Sharia Court.
I resolve the sole issue as formulated by me in favour of the respondent.
This appeal lacks merit.

I affirm the decision of the Sharia Court of Appeal Sokoto delivered on 31/12/2010 in Suit No SCA/SK/38/2009.
This appeal is accordingly dismissed with N60,000.00 cost in favour of the 1st Respondent.

TIJJANI ABDULLAHI, J.C.A.: I read in advance the lead judgment of learned brother, T. O. Awotoye, JCA just delivered. His lordship, chararistically dealt exhaustively with the live issue that call for determination in this appeal, and rightly in view, resolved it in favour of the Respondent. I too dismiss the appeal as lacking in merit and abide by all the consequential orders therein contained.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance, in draft, the judgment just
delivered by my learned brother Tunde O. Awotoye. He has admirably dealt with the issues in this appeal. I have nothing more to add. I abide by all the consequential orders made in the judgment.

Appearances

Ibrahim Abdullahi, Esq.For Appellant

AND

M. A. Sambo Esq., for the 1st Respondent.
A. Y. Abubakar Esq., for the 2nd Respondent.For Respondent