AMADU TUDU v. MALAMI HAKIMI
(2016)LCN/8286(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/S/12S/2011
RATIO
COURT: JURISDICTION; WHETHER A SHARIA COURT LACKS JURISDICTION TO DETERMINE APPEALS IN RESPECT OF CLAIMS RELATING TO LAND
It is now trite that a Sharia Court of Appeal lacks jurisdiction to determine appeals in respect of claims relating to land except when they raise questions concerning Islamic Personal Law. The provision of Section 277 of the 1999 Constitution is clear on this. It reads thus
“Section 277
1. The Sharia Court of Appeal of a State shall, in addition to such 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 purpose 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 the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of 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 the case in accordance with Islamic personal law, any other question.”
This constitutional provision is in pari materia with the provision of Section 242 of the 1979 Constitution of Nigeria. The provision has been subjected to judicial interpretation by the Apex Court and this Court in several judicial decisions. See FARANSI v. NOMA (2007) 10 NWLR (PT 1041); USMAN v. KAREEM (1995) 2 NWLR (PT 379) 537; MAIDA v. MODU (2000) NWLR (PT 651) 99.
According to Sanusi JCA (as he then was) in FARANSI v. NOMA (supra) in page 21
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 the 1999 Constitution or Section 242 of the Constitution of the Federal Republic of Nigeria 1979. See the case of GARBA v. DANGO YARO (1991) INWLR (PT 165) 102; USMAN v. KAREEM (1995) 2 NWLR (PT 379) 537; MAGAJI v. MATARI (2000) 8 NWLR (PT 670); MAIDA v. MADO (2000) 4 NWLR (PT 651) 99″ Also in MAGAJI v. MATARI (2000) 8NWLR (PT 670) 722, Mohammed JSC. held as follows
“Land dispute can only be pertinent for determination of Sharia Court of Appeal, if it is involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor testator or deceased person is a Muslim.” In the light of the above, I hold that the Court below lacked jurisdiction to entertain the appeal now before us, it arising from land dispute and not involving question of Islamic Personal Law. I resolve issue No I in favour of the appellant in the circumstance. I hereby allow this appeal. The judgment and the proceedings of the Sharia Court of Appeal Sokoto State in Suit No SCA/WR/105/2005 are hereby set aside for lack of jurisdiction by the Lower Court. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria
Between
AMADU TUDU Appellant(s)
AND
MALAMI HAKIMI Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the decision of the Sharia Court of Appeal, Sokoto State in Suit No.SCA/WR/105/2006.
On 8/2/2005, the Respondent had filed a claim at the Lower Sharia Court Wurno as follows:
“I Aliyu Buzu Munki hereby sue Malami Hakimi Munki and Ahmadu Aliyu Gwammatse in respect of my father’s farm. It was entrusted by my father Dantudu to his brother Maidamma when I came back from the travelling, I met it in possession of (these people) Ahmadu Aliyu and Malami Aliyu Gwammatse. I asked them how the farm got to them. They referred me to ask my brother. Whenever I asked him he used to play with my intelligence. That is why I sue him before the Court so that it can be investigated and give me my share and they can have (my brother) his share.”
After hearing the parties, the Lower Sharia Court Wurno found that the farm which the plaintiff (respondent) claimed belong to the plaintiff.
The Defendant being dissatisfied with the decision of the Wurno Lower Sharia Court appealed to the Upper
Sharia Court Wurno challenging the said decision. After hearing the parties, the Upper Sharia Court allowed the appeal.
The decision of the Upper Sharia Court made the respondent to appeal to the Sharia Court of Appeal. The said appeal was allowed by the Lower Court on 31/7/2006.
Aggrieved by the decision of the Sharia Court of Appeal, the appellant who was the initial defendant at the Court of First Instance, filed an appeal to this Court on 8/8/2006. His Notice of Appeal contains one grounds of appeal namely
“That the Sharia Court of Appeal Sokoto lacks jurisdiction to hear and determined (sic) an appeal from Upper Sharia Court, since the case did not concern Islamic personal law being a dispute over ownership of Farmland”
The record of appeal in this case was transmitted on 21/2/2011 but deemed duly compiled and transmitted on 15/6/2015.
The appellant had on 15/6/2015 sought and obtained leave to amend his Notice of Appeal.
His grounds of appeal are as follows (excluding particulars)
“Ground One
That the Sharia Court of Appeal Sokoto, lacks jurisdiction to hear and determined
an appeal from Upper Sharia Court, since the case did (sic) not concern Islamic Personal Law being a dispute over ownership of farmland.
Ground Two
The learned Khadis of the Sharia Court of Appeal, Sokoto erred in law in entertaining the appeal and passed a decision against the Defendant/Appellant when in fact, have no jurisdiction to hear the appeal having regard to the nature of the claim.
Ground Three
The learned Khadis of the Sharia Court of Appeal, Sokoto erred in law in entertaining the appeal and passed a decision against the Defendant/Appellant upon an incompetent claim.?
On transmission of record of appeal, the appellant through his counsel A. Y. Abubakar filed appellant?s brief of argument on 31/8/2015. The brief was however deemed properly filed and served on 21/9/2015.
Learned appellant?s counsel formulated the following two issues for determination in his brief of argument.
”1. Whether the Sharia (sic) Court of Appeal Sokoto, Sokoto State had jurisdiction to hear and determine the appellant?s appeal. (distilled from ground 2)
2. Whether the
Sharia Court of Appeal Sokoto, Sokoto State, did not erred (sic) in law and came to a wrong decision when it set aside the decision of Upper Sharia (sic) Court Wurno and affirmed the decision of the Trial Lower Sharia (sic) Court Wurno, (distilled from ground 3).?
On issue one, learned appellant?s counsel submitted that the Court below lacked jurisdiction to entertain the appeal having regard to its nature ? land matter. He referred to Section 277 (2) of the 1999 Constitution and the following decision of SALEMA & ANOR v. MAMMAN (2006) 3 SLR (PT 1) 203; ABUJA v. BIZI (1989) 5 NWLR (PT 119) 120; UMAR ALHAJI GARBA v. ADAMU DOGON YARO (1991) NWLR (165) 102 among a host of other cases. Learned appellant?s counsel therefore urged the Court to resolve this issue in appellant?s favour.
On issue two, learned appellant?s counsel submitted that the Court below erred in law when it affirmed the decision of the trial Court which was based on an incompetent claim. He submitted that the statement of claim of the Respondent before the trial Court fell short of the requirement of the Rule 1 of the Area Court (Civil Procedure)
Amendment Rules 1980. He urged the Court to resolve issue two in appellant’s favour.
The Respondent in this appeal despite having been served with all necessary processes failed to file Respondent brief of argument.
I shall therefore determine this appeal based solely on appellant’s brief of argument.
I have deeply considered the contents of the record of appeal as well as arguments of the learned counsel for the appellant as contained in his brief.
Since an appeal from the trial Court, the Lower Sharia Court, Wurno does not lie to this Court, this Court does not have jurisdiction to determine the merit or otherwise of the claim before the said Court of the trial.
I shall therefore refrain from resolving issue No two formulated by the appellant. It raises questions that can only be determined by a Court that hears, directly, appeals from the Lower Sharia Court.
ISSUE NO ONE
It is now trite that a Sharia Court of Appeal lacks jurisdiction to determine appeals in respect of claims relating to land except when they raise questions concerning Islamic Personal Law. The provision of Section 277
of the 1999 Constitution is clear on this. It reads thus
“Section 277
1. The Sharia Court of Appeal of a State shall, in addition to such 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 purpose 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 the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of 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 the case in accordance with Islamic personal law, any other question.”
This constitutional provision is in pari materia with the provision of Section 242 of the 1979 Constitution of Nigeria. The provision has been subjected to judicial interpretation by the Apex Court and this Court in several judicial decisions. See FARANSI v. NOMA (2007) 10 NWLR (PT 1041); USMAN v. KAREEM (1995) 2 NWLR (PT 379) 537; MAIDA v. MODU (2000) NWLR (PT 651) 99.
According to Sanusi JCA (as he then was) in FARANSI v. NOMA (supra) in page 21
?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 the 1999 Constitution or Section 242 of the Constitution of the Federal Republic of Nigeria 1979. See the case of GARBA v. DANGO YARO (1991) INWLR (PT 165) 102; USMAN v. KAREEM (1995) 2 NWLR (PT 379) 537; MAGAJI v. MATARI (2000) 8 NWLR (PT 670); MAIDA v. MADO (2000) 4 NWLR (PT 651) 99″
Also in MAGAJI v. MATARI (2000) 8NWLR (PT 670) 722, Mohammed JSC. held as follows
“Land dispute can only be pertinent for determination of Sharia Court of Appeal, if it is involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor testator or deceased person is a Muslim.”
In the light of the above, I hold that the Court below lacked jurisdiction to entertain the appeal now before us, it arising from land dispute and not involving question of Islamic Personal Law.
I resolve issue No I in favour of the appellant in the circumstance.
I hereby allow this appeal. The judgment and the proceedings of the Sharia Court of Appeal Sokoto State in Suit No SCA/WR/105/2005 are hereby set aside for lack of jurisdiction by the Lower Court.
The appeal is hereby remitted back to Honourable Chief Judge of Sokoto State to be assigned to the appellate division of the Court.
I make no order as to costs.
PAUL ADAMU GALINJE, J.C.A.: I entirely agree that the Sharia Court of Appeal Sokoto State absolutely has no jurisdiction to hear any appeal which arises from a claim of declaration of title to land.
I allow the appeal and endorse the consequential order made in the lead judgment of my brother, Awotoye, JCA.
MUHAMMED L. SHAIBU, J.C.A.: I entirely agree.
Appearances
A.Y. Abubakar, Esq. with him, Jibrin Saidu, Esq.For Appellant
AND
A. MaiwadaFor Respondent
