ALIYU v. HARBU (2022)

ALIYU v. HARBU

(2022)LCN/16190(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, April 13, 2022

CA/KN/225/S/2019

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

MUSA ALIYU APPELANT(S)

And

ILIYASU GARBA HARBU RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is defined in Black’s Law Dictionary (8th Edition) page 867 “as the Court’s power to decide a case or issue a decree”. In A. G. Federation v. A.G. Abia State & 35 Ors (2001) 7 SC (Pt. 1) 100, the Supreme Court held that “the word “Jurisdiction” means the authority the Court has to decide matters before it or to take cognizance of matter presented in a formal way for its decision”. See Dariye v. FRN (2015) 61 (Pt. 3) NSCQR 1457 and Nsirim v. Amadi (2016) 65 (Pt. 1) NSCQR 353.

Jurisdiction is a threshold issue and it is a sine quo non to any adjudication. It is the blood that give life to the survival of an action in a Court of law. Any proceedings taken without jurisdiction, it is a nullity no matter how well conducted. See Zakari v. Nigerian Army (2015) 62 (Pt. 1) NSCQR 219.

Jurisdiction is statutorily conferred, it is a Constitutional issue.

THE JURSIDICTION OF THE SHARIA COURT OF APPEAL OF THE STATE AND THE FEDERAL CAPITAL TERRITORY

The jurisdiction of the Sharia Court of Appeal of the State and the Federal Capital Territory is provided for by Section 244(1) and 277 (2)(a) to (e) of the 1999 Constitution of the FRN (as amended). To be precise, Section 277 (2) provides:
(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 and question of Islamic personal law regarding a marriage including the validity or dissolution of that marriage or regarding family relationship, founding 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 of the guardianship of a muslim who is physically or mentally infirm.
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. PER TALBA, J.C.A.

“HAUZI” IN ISLAMIC LAW

It is crystal clear that the principal claim relates to nullification of sale of farmland transaction between Abubakar, Mani and the respondent. And for the recovery of possession of the said farmland. It is on the basis of that the trial Court entered judgment in favour of the respondent by applying the Islamic Law of “HAUZI”. Hauzi in Islamic law is when a stranger establishes control over a property (moveable or immoveable) either by means of purchase, inheritance gift and remains in physical possession for a period legally recognized acquires title over the property. Ten years of peaceful enjoyment of possession of a landed property without let or hindrance bars all actions against an un-blood related possessor. In this instant case Mani and the respondent were in possession of the farmland for over 40 years, while the appellants were aware that the farmland was sold to Mani by their brother Abubakar. The trial Court rightly applied the Islamic law of Hauzi. But the lower Court lacks the jurisdiction to entertain the appeal.

It is without any doubt that the principal claim does not fall within the ambit of Section 277(1) and (2) (a) to (e) of the 1999 Constitution of the FRN (as amended). In the case of Zaki & 4 Ors v. Musa (2015) 3 SQLR (Pt. 1) 1 at 17 – 18 paragraphs F – B, His lordship Oredola JCA quoted the pronouncement made by Uthman Mohammed JCA (as he then was) in Alhaji Hassan Abuja v. Lawan Gani Bizi (1989) 5 NWLR (Pt. 119) 120/125 wherein he stated thus:
“May I explain before going deeper into this judgment that this Court had made several decisions in the past in respect of appeals coming here the subject matter of which was a dispute between respective parties in those cases and which were not within the definition of Islamic personal law as outlined in S. 242 of the 1979 Constitution. We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law, regardless of the fact that the parties signed Form AC9 or not one of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 NCLR 260 at 267.” PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Sharia Court of Appeal Kano State delivered on the 19th day of June, 2013 in Suit No: SCA/KN/CV/212/2016.

The appellant instituted an action against the respondent before the Upper Sharia Court Bichi claiming the recovery of a farmland. The claim reads thus:
“I am seeking for the recovery of our farmland which we inherited from our father Aliyu, who died and he left behind his heirs one wife Fatsima and six children. Five males and one female. Their names are 1. Abubakar, 2. Haruna, 3. Musa, 4. Yahaya, 5. Adamu and Sa’ude.”

On the 30th of November, 2012 when the Court sat, the appellant was asked to state his claim and he said:
“I want the Court to share the estate of our late father Aliyu.”

He also restated the heirs their late father left behind and four number farmland and there location. When the appellant was asked by the Court in whose possession are the farmland as at that time, he said three are in their possession while one is in possession of the respondent. He stated further that the Court should live the three farmland that are in their possession and recover the farmland in possession of the respondent. The Court asked the respondent to confirm if the farmland is in his possession. The respondent replied that, “the farmland is in my possession and it belongs to their father. Their brother Abubakar sold it to Mani and Mani sold it to me. And the farmland is about 18 years in possession of Mani And Mani sold it to me twenty-four years ago”. The Court asked the appellant if he agreed that their elder brother Abubakar sold the farmland to Mani. The appellant replied that it is true Abubakar sold the farmland, but he could not remember the time because they were young at that time. After hearing the Court confirmed the sale to the respondent. Upon being dissatisfied with the decision of the trial Court, the appellant appealed to the Sharia Court of Appeal (herein referred to as the lower Court). The lower Court dismissed the appeal and affirmed the decision of the trial Court. Both the trial Court and the lower Court held that the appellants slept over their rights and under Sharia Law whoever slept over his right he will not be allowed to file a suit and seek to nullify the transaction. The trial Court relied on TUHFA at page 177.
… (Qur’anic citation)
While the lower Court relied on the book of ASHALUL-MADARIK volume 30 page 236
… (Qur’anic citation)
And the Book of BAHAJA Volume two.

Further aggrieved by the decision of the lower Court, the appellant appealed to this Court vide a notice of appeal filed on 1st of July, 2013. It contains two (2) grounds of appeal. The extant notice of appeal is the amended notice of appeal filed on 1st July, 2021 and deemed on 5th July, 2021. It also contains two grounds of appeal.

At the hearing of the appeal on 23rd of February, 2022 Ibrahim Sa’ad of counsel adopted the appellant amended brief of argument filed on the 1st of July, 2021 and was deemed on 5th of July, 2021. And the reply brief filed on 13th of March, 2021 and deemed on 23rd of February, 2022. He urged the Court to allow the appeal and set aside the decision of the lower Court. The respondent’s counsel Sanusi Yahuza adopted the amended respondent’s brief of argument filed on 15th of September, 2021 and deemed on 23rd of February, 2022. He urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

From the two grounds of appeal, the appellant distilled a sole issue for determination thus:
“Whether the Sharia Court of Appeal Kano was right in assuming jurisdiction over the appeal and determining same.”

The respondent adopted the sole issue submitted by the appellant. Equally, I adopt the sole issue for the determination of this appeal. The appellant’s counsel submitted that the Sharia Court of Appeal Kano is created by the Constitution and its Power and Jurisdiction are provided thereunder. Section 275(1) of the Constitution of the FRN as altered created Sharia Court of Appeal of States and Section 277 of the same Constitution listed the matters within the Power/Jurisdiction of the Court. He submitted that in the instant case it is clear from the claim of the appellant at the trial Court that the claim is centered on recovery of landed property as contained at pages 13, 14, 15 and 16 of the record and it became clear at page 22 when the Court summarized the claim of the appellant to the respondent and asked for his response as follows:

“Court to defendant Iliya, did you hear that they need to nullify the transaction of this farmland in question what will you say?
Answer – I purchased the farmland in question from Mani and Abubakar has sold it…”

The learned counsel submitted that the claim of the appellant at the trial Court is not in any way related to Islamic personal law regarding either marriage, guardianship wakf, gift or succession which would have clothed the lower Court with the appellate jurisdiction. On the contrary, the matter at the trial Court is issue of validity of sale of land under Islamic law. Whereas it is not disputed that the trial Court has jurisdiction over the claim, same cannot be said to the lower Court as the appeal from the trial Court that decided matters on sale of land under Islamic Law simpliciter would have appropriately go to Kano State High Court sitting on appellate capacity. See Alh. Yahaya Salema v. Alha. Mamman (2006) 3 SLR (Pt. 1) 203.

Learned counsel submitted further that the law is clear that once an issue of titles to land is the subject of appeal the Jurisdiction of Sharia Court of Appeal is ousted. See Umaru Alhaji Garba v. Adamu Dogon Yaro (1991) 1 NWLR (Pt. 165) 103 and H. Ahmadu Usman v. Sidi Umaru (1992) 7 NWLR (Pt. 254) 377.

The learned counsel for the respondent submitted that the lower Court was right in assuming jurisdiction and determine the appeal before it. Learned counsel submitted that in determining jurisdiction of a Court (trial or appellate), it is only the claim of the plaintiff not any other process the Court considers. He referred to the case of Felshade Int’l (Nig) Ltd v. T. B. (BV) Amsterdam (2020) 14 NWLR (Pt. 1743) 107 at 138. Learned counsel also referred to the claim of the plaintiff at the trial Court, Upper Sharia Court Bichi as contained in pages 13 – 14 of the record of appeal. Learned counsel submitted that from the claim of the plaintiff it is clear that it was for inheritance of a farmland under Islamic Law of inheritance in which he was seeking the Court to devolve the estate of their deceased father. The Court asked him questions which he replied as to the remaining heirs left by his deceased father. The claim before the trial Court was for distribution of inheritance of farmland found in possession of the defendant who did not deny being in possession of it. The learned counsel further submitted that on appeal to the lower Court the appellant re-stated his claim thus:
“Appellant and the respondent appeared in Court and plaintiff stated is claim where he said he is seeking the help of the Court to distribute the Estate of their father by name Aliyu who do not left parent alive, but he left behind one wife by name Fatima and six children five males and one female namely Abubakar, Haruna, Musa, Yahaya, Adamu and Saude.
Also their father has left behind four farmlands.”

The learned counsel submitted that the Sharia Court of Appeal acted within the context of the Constitutional parameters provided for by Section 277(1) and (2)(a) – (c) of the Constitution of the FRN 1999 (as amended). He relied on the case of Mawo v. Tsintuwa (2020) 2 NWLR (Pt. 1708) 306.

In his reply brief, the appellant’s counsel relied on the case of Angadi v. PDP (2019) All FWLR (Pt. 996) 939) and he submitted that the trial Court and the lower Court has jurisdiction on the claim for distribution of inheritance but the lower Court lacked jurisdiction on the claim for return of their farmland from the respondent.

Jurisdiction is defined in Black’s Law Dictionary (8th Edition) page 867 “as the Court’s power to decide a case or issue a decree”. In A. G. Federation v. A.G. Abia State & 35 Ors (2001) 7 SC (Pt. 1) 100, the Supreme Court held that “the word “Jurisdiction” means the authority the Court has to decide matters before it or to take cognizance of matter presented in a formal way for its decision”. See Dariye v. FRN (2015) 61 (Pt. 3) NSCQR 1457 and Nsirim v. Amadi (2016) 65 (Pt. 1) NSCQR 353.

Jurisdiction is statutorily conferred, it is a Constitutional issue.

It has been held by the apex Court and this penultimate Court in plethora of cases that it is the plaintiff’s claim at the trial Court and not the defendant’s defence or counter-claim that determines the Jurisdiction of the Court. See Tukur v. Government of Gongola State (1989) 9 SCNJ 1 and Engineer Yalaju Amaye v. Associated Engineering Contractor & Ors (1990) 6 SCNJ 149.

The jurisdiction of the Sharia Court of Appeal of the State and the Federal Capital Territory is provided for by Section 244(1) and 277 (2)(a) to (e) of the 1999 Constitution of the FRN (as amended). To be precise, Section 277 (2) provides:
(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 and question of Islamic personal law regarding a marriage including the validity or dissolution of that marriage or regarding family relationship, founding 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 of the guardianship of a muslim who is physically or mentally infirm.
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.

In this instant case, a critical analysis of the appellant’s claim before the trial Court as reproduced above in this judgment will reveal that there are two claims. One is the principal claim and the second is the ancillary claim. The principal claim is the claim for the recovery of a farmland which was sold by the appellant’s elder brother Abubakar to Mani and Mani sold it to the respondent and the ancillary claim is for the distribution of the farmland among the heirs of their late father Aliyu, in the event of the nullification of the sale transaction. As a matter of fact at pages 15 – 16 of the English translated version of the proceeding lines 16 -21 and 1 – 8 respectively it reads:
“Court to plaintiff: who is managing these farmlands right now?
Answer: Iliya has withheld the first farmland ut we control the remaining three but we urge the Court to exclude the three farmlands and to confiscate our first farmland from Iliyasu.
Court to Defendant: Is it true that you withhold the first farmland and its belonging to their father?
Answer: The said farmland is mine and I agree this farmland was belonging to their father but their brother Abubakar has sold it to Mani and Mani has sold it to me also. Mani has managed this farmland for the past 18 years ago and I purchased it from him today is about 24 years ago.
Court to plaintiff Musa: Did you agree that your brother has sold this farmland in question to Mani?
Answer: Yes is true Abubakar has sold it to him but I don’t know the time of the transaction of the said farmland because we were young at that time.”

It is crystal clear that the principal claim relates to nullification of sale of farmland transaction between Abubakar, Mani and the respondent. And for the recovery of possession of the said farmland. It is on the basis of that the trial Court entered judgment in favour of the respondent by applying the Islamic Law of “HAUZI”. Hauzi in Islamic law is when a stranger establishes control over a property (moveable or immoveable) either by means of purchase, inheritance gift and remains in physical possession for a period legally recognized acquires title over the property. Ten years of peaceful enjoyment of possession of a landed property without let or hindrance bars all actions against an un-blood related possessor. In this instant case Mani and the respondent were in possession of the farmland for over 40 years, while the appellants were aware that the farmland was sold to Mani by their brother Abubakar. The trial Court rightly applied the Islamic law of Hauzi. But the lower Court lacks the jurisdiction to entertain the appeal.

It is without any doubt that the principal claim does not fall within the ambit of Section 277(1) and (2) (a) to (e) of the 1999 Constitution of the FRN (as amended). In the case of Zaki & 4 Ors v. Musa (2015) 3 SQLR (Pt. 1) 1 at 17 – 18 paragraphs F – B, His lordship Oredola JCA quoted the pronouncement made by Uthman Mohammed JCA (as he then was) in Alhaji Hassan Abuja v. Lawan Gani Bizi (1989) 5 NWLR (Pt. 119) 120/125 wherein he stated thus:
“May I explain before going deeper into this judgment that this Court had made several decisions in the past in respect of appeals coming here the subject matter of which was a dispute between respective parties in those cases and which were not within the definition of Islamic personal law as outlined in S. 242 of the 1979 Constitution. We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law, regardless of the fact that the parties signed Form AC9 or not one of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 NCLR 260 at 267.”

In the light of the above decisions, I hold that the lower Court lacks the jurisdiction to entertain the appeal and consequently its decision is rendered a nullity. Accordingly, the sole issue is resolved in favour of the appellant. The appeal is meritorious and it is allowed. The judgment of the lower Court delivered on the 19th of June, 2013 is hereby set aside. The appeal is remitted back to the Hon. Chief Judge of Kano State for proper trial by the High Court of Justice, Kano State in its appellate jurisdiction. No order as to cost.

MOHAMMED DANJUMA, J.C.A.: I have the privilege to reading in draft, the lead judgment of my learned brother, A. M. TALBA JCA. I agree with the reasoning and conclusion that the appeal is meritorious and is hereby allowed. I abide by all the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine. I too found that the appeal is meritorious. The appeal is equally allowed by me and I abide by the consequential orders made therein.