AMINU GARBA & ORS v. BELLO SHEHU & ORS
(2018)LCN/11534(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/S/150S/2016
RATIO
JURISDICTION OF THE SHARIA COURT OF APPEAL
This constitutional provision has been interpreted by the Supreme Court and this Court in a plethora of decided cases to the effect that the jurisdiction of Shari’a Court of Appeal is restricted to and is exercisable only in cases involving Islamic personal law as provided in Sub-section (2) of Section 277 of the Constitution. per HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. AMINU GARBA
2. MAMUDA GARBA
3. SANI GARBA
4. BELLO GARBA
5. USMAN GARBA
6. ALIYU GARBA
7. IBRAHIM GARBA
8. RUFA’I GARBA Appellant(s)
AND
1. BELLO SHEHU
2. ABDULLAHI SHEHU
3. KANE SHEHU Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)
This appeal calls for a review of the decision of the Sharia Court of Appeal, Sokoto State delivered on 22nd December, 2015 affirming the decisions of the trial Shari’a Court Tudun Wada and that of the Upper Sharia Court I Sokoto, in Suit number CV/153/2013 and USC/SK/CVA/11/2014 respectively.
The Appellants instituted the action before the Tudun Wada Shari’a Court Sokoto in Suit No CV/153/2013 relating to a piece of land lying and situate in front or their house. The Appellants claimed that the land belongs to their late father and the respondents were trespassers thereon. (See page 1 of the record). The trial Court struck out the claim and ordered the parties who desire to hold the land to consult the appropriate authorities for that purpose. (See page 15 of the record). Dissatisfied with the judgment of the Trial Court, the appellant appealed to the Upper Sharia Court Sokoto and thereafter to the Sharia Court of Appeal Sokoto State sitting at Sokoto (hereinafter called the Court below).
The Court below affirmed the decisions of both the trial Court and the Upper Sharia Court Sokoto dismissing the appellant?s case.
Further dissatisfied with the judgment of the Court below, the appellant has challenged same by filing a Notice of Appeal based on the following three grounds:
1. The whole decision of the Sharia Court of appeal Sokoto is against the weight of evidence.
2. The Court Erred in law when it refused to administer the oath of rebuttal on the respondents or the appellants before declaring that the appellants are not the rightful owner of the land in dispute and has occasioned a miscarriage of justice.
PARTICULAR OF ERRORS IN LAW
a. Whereas, there was evidence before the Court below to show that the appellants were entitle to judgment.
b. Whereas, the nature of the subject matter in dispute is one upon which the appellants can be entitled to judgment on an oath of rebuttal.
c. Whereas, the Court below glossed over this important consideration.
3. The learned Khadis of the Sharia Court of Appeal Sokoto erred in law when it assumed jurisdiction in entertaining the appeal of the appellants which subject matter to appeal raises issues relating to title to land and did not raised any issues relating to Muslim personal law and these has occasioned a miscarriage of justice.
PARTICULAR OF ERROR IN LAW
a. The appeal before the Sharia Court of appeal Sokoto from the original claim of the appellants before the trial Court which an appeal was lodged before the upper Sharia Court II Sokoto and thereafter the Court below raised the issues relating to title to land.
b. Having regards to the provision of Section 277 (1) (2) of the 1999 Constitution of the Federal Republic of Nigeria, the appellate jurisdictions of the Sharia Court of Appeal is limited to where the appeal raise question involving Muslims personal law only
c. Whereas, the Sharia Court of Appeal Sokoto lacks jurisdiction to hear and determine the appeal.
The Learned counsel for the appellant distilled the following sole issues for determination in this appeal:
Whether the Sharia Court of Appeal Sokoto State sitting at Sokoto did not err in law and came to a wrong decision when it confirmed the decision of the trial Court and Upper Sharia Court Sokoto when the Court lacks the requisite jurisdiction to entertain the appeal.
It was argued for the appellants that the claim before the trial that culminated in to an appeal before the Court below was a claim relating to trespass to a plot of land. It reads as follows:
“We Tukur Garba, Aminu, Mamuda, Sani, Bello. Usman, Aliyu, Ibrahim and Rufai, all residents old airport area, Sokoto do hereby filed a suit against Bello Shehu, Abdullahi Shehu and Kane Shehu over dispute about a portion of land which they inherited from their father but which now Bello Shehu claims he has a stake in the (same) plot of land.
It is on this basis that we sue them over the land and closure of the entry ways.?
From the claim of the plaintiff before the lower Shari’a Court, the subject matter of the claim is not within the jurisdiction of the Court below and it can therefore not entertain same. In MAISHANU Vs MANU (2007) NWLR (PT. 1032) P.42 at 44 the Court of Appeal held that a Court has and can, only exercise jurisdiction when:
(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 by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
SEE ALSO MADUKOLU VS NKEMDILIN (1962) 2 SCNLR 341, ODOFIN VS AGU (1992) 3 NWLR (PT. 229) 350 AND OLOWU VS. NIGERIAN NAVY (2007) ALL FWLR (PT. 350) 1278 AT 1298 PARAS B-D.
The law is well settled that it is the claim at the trial Court that determines the jurisdiction of the Court in a matter. SEE ALHAJI UMAR TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 1, AMAYE VS ASSOCIATED REGISTERED ENGINEERING CO. LTD. & ORS (1990) 6 SCNJ 149.
Similarly, this Court had held inKANAWA VS MAlKASET (2007) 10 NWLR (PT. 1042) P. 287 thus:
“Jurisdiction of Court is determined by considering and examining the claims, of the plaintiff at the trial Court or the appellant at the appellate Court.”
See equally C.B.N VS SAP (NIG) LTD (2005) 3 NWLR (PT. 911) 153.
It is further submitted on behalf of the appellants that by virtue of Section 277 (1) & (2) of the Constitution of The Federal Republic of Nigeria 1999 (as amended), the Shari’a Courts of Appeal are conferred with specific power or competence to exercise supervisory and appellate jurisdiction in civil proceedings involving question of Islamic personal law as follows:
(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 that law, including a question relating to the validity or dissolution of such marriage or a question that depends on such 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.
This constitutional provision has been interpreted by the Supreme Court and this Court in a plethora of decided cases to the effect that the jurisdiction of Shari’a Court of Appeal is restricted to and is exercisable only in cases involving Islamic personal law as provided in Sub-section (2) of Section 277 of the Constitution. It therefore follows that where the question or issue involved in the case or appeal does not fall under the purview of the provision of Sub-section (2) (as in the instant appeal) the Sharia Court of Appeal is not competent and therefore lacks jurisdiction to hear or determine such case or appeal. See the cases of GARBA VS DOGON YARO (1991) 1 NWLR (PT. 165) 102; USMAN VS KAREEM (1995) 2 NWLR (PT. 379) 102, USMAN VS UMARU (1992) 7 NWLR (PT. 254) 377, MUNINGA VS MUNINGA (1997) 11 NWLR (PT. 527) 1 at 9.
The Learned counsel for the respondents argued, on the other hand, that where an issue of Jurisdiction is raised for the first time at the Appellate Court, the evidence proffered before a Court in a proceeding, is one of the factors that a Court must consider in determining the issue of Jurisdiction. See BARCLAYS BANK OF NIGERIA LTD VS. C.B.N (1976) ALL NLR 409 at 424. In other words, Jurisdiction of the Court can be determined both on the basis of the statement of claim and the evidence adduced. See the cases of NDIC vs. C.B.N (2002) 7 NWLR (PT. 766) 272 @ 296, NONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) 623 AND ARJAY LTD. VS. AMS LTD. (2003) 7 NWLR (PT. 820) 577.
The learned counsel to the respondent, on the other hand, submitted that only the statement of claim must be examined in order to determine jurisdiction in any case. The jurisdiction of the Sharia Court of Appeal is determinable by examining the very nature of the dispute. While a dispute that involves title to land simpliciter is not within the jurisdiction of the lower Court, the Court?s jurisdiction could properly be invoked where the dispute is predicated upon a claim of right accruable under Islamic Law as provided under Section 277 of the Constitution, which is determinable from the statement of claim. In the former case, the Sharia Court of Appeal lacks jurisdiction while the latter case falls within the scope of Section 277 of the Constitution.
The unreported case of SANI LUMO VS. ALHAJI ABU _ Appeal No. CA/S/32S/2015 delivered on the 7th December, 2016 is apparently quoted out of con. The pronouncement quoted by the Learned counsel for the respondent also stresses the fact that jurisdiction of a Court is determinable from the statement of claim not evidence. For the avoidance of doubt, the Court specifically observed thus:
“it is not every case in which the word “land” rings that falls outside the scope of the jurisdiction of the Shari’a Court of Appeal. The applicable test is whether the rights are claimed under Islamic law. If so the appeal lies from the Upper Shari’a Court to the Shari’a Court of Appeal as provided by both Section 277 of the Constitution and Section 17 of the Sharia Law of Sokoto State 2000.” (underline supplied for emphasis)
It is therefore clear that if jurisdiction is not donated to the Court by the nature of the claim, it cannot otherwise be conferred on the Court whether by evidence or mere argument of counsel.
In a land matter where the claim is predicated upon ownership possession or title to land simpliciter, it is clearly extraneous to the provision of Section 277 of the Constitution and certainly not within the jurisdiction of the Sharia Court of Appeal except if the parties being Muslims have asked the trial Court to apply Islamic personal Law to the case right from the onset, in which case it is covered by Para. (e) of Subsection (2) of the Constitution. In that case, the Sharia Court of Appeal will be competent to hear an appeal emanating therefrom irrespective of the subject matter of the claim.
From the sum total of the foregoing appraisal, I resolve the sole issue in favour of the appellants. The appeal succeeds on this score. The judgment of the Court below delivered on 22nd December, 2015 is hereby struck out for want of jurisdiction. Consequently, the appeal against the judgment of the Upper Sharia Court I Sokoto USC/SK/C VA/i 1/2014 delivered on 7th May 2015 is hereby referred to the Appeal Section of the High Court of Sokoto State as the appropriate forum there-for. The parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother, Hussein Mukhtar, JCA. My noble Lord has properly set out and considered the facts and issues raised thereon and I adopt the said judgment as my own. I will also allow the appeal for reasons so given. I abide by all the consequential orders.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal. The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue. The dispute in the instant case is predicated upon a claim of title to a landed property. The Appeal having been adjudged meritorious, consequently, the judgment of the Sokoto State Shari?a Court of Appeal, in Sokoto delivered on 22-12-2015 is void for want of jurisdiction and it is struck out. I abide by all consequential orders of Court.
Appearances
Mustapho Na Abu, Esq.For Appellant
AND
M. U. Uwais, Esq.For Respondent
