ANGIDA LABBO MAKUKU v. HASSAN MIJIN YAWA
(2016)LCN/8330(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of March, 2016
CA/S/57S/2012
RATIO
COURT: JURISDICTION; WHETHER THE SHARIA COURT OF APPEAL HAS JURISDICTION TO DETERMINE THE APPEAL WITHOUT ANY QUESTION OF ISLAMIC PERSONAL LAW RAISED
In MAGAJI v. MATARI (supra) the Supreme Court had cause to interpret the provision of Section 242 of the 1999 Constitution which is materia with Section 277 of the 1999 Constitution. The facts of the case can be captured from the leading judgment of Wali JSC, as follows : Following the order for a retrial made by the Sharia Court of Appeal Bauchi in 1986, the plaintiff Maidaurowa Matari lodge the following complain in the Nabardo Area Court against the defendant Alhaji Usman Magaji- “I sued (sic) the defendant about the farm land I inherited from my late Father (called Zaranda) which the defendant took to use with the assertion that it is his own. And this is a land that has been cultivated long ago by my parents, then how could the defendant a stronger as he is could claim its ownership, just of a sudden?”
The learned trial judge after hearing the parties, gave judgment in favour of the plaintiff.
Dissatisfied, the defendant Usman Magaji appealed to the Upper Area Court which allowed the appeal.
The plaintiff subsequently appealed to the Sharia Court of Appeal Bauchi which unanimously dismissed the appeal.
The plaintiff later appealed to the Court of Appeal, Jos Division which held that the decision of Nabardo Area Court granting the farm land to the plaintiff was correct.
The appellant, the original defendant, then appealed to the Supreme Court challenging the jurisdiction of the Sharia Court of Appeal based on the provision of Section 242 of the 1979 Constitution. In the leading judgment of the Supreme Court Wali JSC held thus:
Section 242 (2) of the 1979 Constitution confines Sharia Court of Appeal to what has been termed in that Section as Islamic Personal Law in other words Islamic Law of Personal Status. Looking at the facts involved in this case the dispute cannot fit in any of the matters listed in Section 242 (2) of the Constitution – – –
It is simply a case involving ownership of the piece of land in dispute between the contending parties.?
The Supreme Court allowed the appeal and set aside the decision of the Court of Appeal. The Supreme Court further nullified the judgment of the Sharia Court of Appeal Bauchi for want of jurisdiction.
It is relevant to reproduce the provision of Section 277 of the 1999 Constitution which is impari materia with Section 242 of the 1979 Constitution. It reads 272 (1). The Sharia Court of Appeal shall, in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in Civil proceedings involving questions of Islamic Personal Law.
(2). For the purpose of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent 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, 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 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, or any other questions.”
Also the provision of Section 244 (1) of the 1999 Constitution of the Federal Republic of Nigeria is very clear on the appellate jurisdiction of the Sharia Court of Appeal. It reads:-
“An appeal shall lie from the decisions of a Sharia Court of Appeal as of right in any civil proceedings before the Sharia Court of appeal with respect to any question of Islamic Personal Law which the Sharia Court of Appeal is competent to decide”
The law is settled that a Sharia Court of Appeal lacks jurisdiction to determine appeals emanating from claims relating to title to land except when the issue as to Islamic Personal Law is involved. 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
ANGIDA LABBO MAKUKU Appellant(s)
AND
HASSAN MIJIN YAWA Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): The Notice of Appeal in this appeal was filed on 10/4/2012. It is to challenge the decision of the Sharia Court of Appeal Kebbi State delivered on 7/3/2012 in suit No SCA/KBS/WSG/21/2009.
On 10/9/2008, the plaintiff at Sharia Court Dirin Daji filed a claim against the defendant claiming as follows:
?I am suing this person because my father leased a farm to his father. Now I asked for the farm but he said that he is not aware of the leasing. This is why I came to the Court so that my farm will be recover (sic) from him.?
The Court of the first instance gave judgment inter alia thus
?Based on lack of credible witnesses on the part of the applicant over his claim, I Hon. Usman A. Besse Judge of the Sharia Court Dirindaji has decided this case confirming to the respondent, Hassan Maijaki the Farm he inherited from his father, based on the witnesses presented and the swearing adduced to him before this Court that BILLAHILLAZI LA? ILAHA ILLA HUWA?
The plaintiff dissatisfied with the above decision appealed to
the Upper Sharia Court Wasagu. On hearing the parties the Wasagu Upper Sharia Court quashed the decision of the Court below and ordered the Sharia Court Zuru to hear the case afresh.
The above decision of Wasagu Upper Sharia Court was challenged on appeal at the Sharia Court of Appeal Kebbi State holding at YAIRI/ZURU ZONE.
The Sharia Court of Appeal affirmed the decision of the Court of First Instance and allowed the appeal.
The decision of the Sharia Court of Appeal is what is now presently being challenged in this appeal, on one sole ground namely
“The Kebbi State Sharia Court of Appeal lacks the jurisdiction to hear and determine the instant case which is in respect of declaration of title to the land and therefore rendered its decision null and void.
PARTICULARS
1. Whereas it can be discerned from the plaintiff?s claim before the trial Court, it is in respect of declaration of title of land.
2. Whereas being purely issue of title to land not affecting Islamic Personal law robs the jurisdiction of Kebbi State Sharia Court of Appeal and rendered its decision to nullity”
The record of appeal was transmitted to this Court on 10/7/2012.
After transmission, appellant?s counsel, Garba Abubakar Shehu filed appellant?s brief of argument on 6/1/12 wherein he formulated one sole issue for determination:-
?Whether the claim of the appellant/plaintiff before the trial Court affects any issue of Islamic Personal Law which empowered the Court below to competently entertain the appeal from the decision of the lower Court.?
Learned appellant?s counsel relied on the following cases UMMARA FANNAMI v. BUKAR SARKI (1961 ? 1989) ISH. L. R. 94, MAGAJI v. MATARI (2000) 2NSC QR (PART 1) 636 at 639; SALEMA & 1 ANOR v. MAMMAN & 1 ANOR (2006) 3 S. LR (PART 1) 203 at 212, ABUJA v. BIZI (1989) 5NWLR (PART 119) 120 and KORAU v. KORAU (1998) 4NWLR (PART 542) 212 at 222, and submitted that the claim before the trial Court was for title to land and hence the lower Court lacked the jurisdiction to hear the appeal. He urged the Court to set aside the decision of the Court below for want of jurisdiction and affirm the decision of the Upper Sharia Court
Wasagu.
The respondent despite having been served with relevant processes failed to file his respondent?s brief. This appeal consequently proceeded to hearing in line with Order 18 Rule 10 of the Court of Appeal Rules 2011.
I have deeply considered the submissions of learned counsel for the appellant and the contents of the record of appeal. Clearly, the claim of the plaintiff at the Court of First Instance was on title to land without any question of Islamic Personal Law raised. In line with several judicial decisions of this Court and Apex Court I hold that the Court below lacks jurisdiction to determine the appeal. See MAGAJI v. MATARI (supra); ABUJA v. BIZI (1989) 5NWLR (PT 119) 120; USMAN v. UMARU (1992) 7 SCNJ (PT 11) 388.
In MAGAJI v. MATARI (supra) the Supreme Court had cause to interpret the provision of Section 242 of the 1999 Constitution which is materia with Section 277 of the 1999 Constitution. The facts of the case can be captured from the leading judgment of Wali JSC, as follows :
?Following the order for a retrial made by the Sharia Court of Appeal Bauchi in 1986, the plaintiff Maidaurowa
Matari lodge the following complain in the Nabardo Area Court against the defendant Alhaji Usman Magaji-
“I sued (sic) the defendant about the farm land I inherited from my late Father (called Zaranda) which the defendant took to use with the assertion that it is his own. And this is a land that has been cultivated long ago by my parents, then how could the defendant a stronger as he is could claim its ownership, just of a sudden?”
The learned trial judge after hearing the parties, gave judgment in favour of the plaintiff.
Dissatisfied, the defendant Usman Magaji appealed to the Upper Area Court which allowed the appeal.
The plaintiff subsequently appealed to the Sharia Court of Appeal Bauchi which unanimously dismissed the appeal.
The plaintiff later appealed to the Court of Appeal, Jos Division which held that the decision of Nabardo Area Court granting the farm land to the plaintiff was correct.
The appellant, the original defendant, then appealed to the Supreme Court challenging the jurisdiction of the Sharia Court of Appeal based on the provision of Section 242 of the 1979 Constitution.
In the leading judgment of the Supreme Court Wali JSC held thus:
?Section 242 (2) of the 1979 Constitution confines Sharia Court of Appeal to what has been termed in that Section as ?Islamic Personal Law? in other words Islamic Law of Personal Status. Looking at the facts involved in this case the dispute cannot fit in any of the matters listed in Section 242 (2) of the Constitution – – –
It is simply a case involving ownership of the piece of land in dispute between the contending parties.?
The Supreme Court allowed the appeal and set aside the decision of the Court of Appeal. The Supreme Court further nullified the judgment of the Sharia Court of Appeal Bauchi for want of jurisdiction.
It is relevant to reproduce the provision of Section 277 of the 1999 Constitution which is impari materia with Section 242 of the 1979 Constitution. It reads
?272 ? (1). The Sharia Court of Appeal shall, in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in
Civil proceedings involving questions of Islamic Personal Law.
(2). For the purpose of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent 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, 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 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, or any other questions.”
Also the provision of Section 244 (1) of the 1999 Constitution of the Federal Republic of Nigeria is very clear on the appellate jurisdiction of the Sharia Court of Appeal. It reads:-
“An appeal shall lie from the decisions of a Sharia Court of Appeal as of right in any civil proceedings before the Sharia Court of appeal with respect to any question of Islamic Personal Law which the Sharia Court of Appeal is competent to decide”
The law is settled that a Sharia Court of Appeal lacks jurisdiction to determine appeals emanating from claims relating to title to land except when the issue as to Islamic Personal Law is involved.
I resolve the sole issue formulated in favour of the appellant. This appeal has merit. It is hereby allowed.
The decision of Sharia Court of Appeal Kebbi State in Suit No.SCA/KBS/WSG/21/2000 delivered on 7/3/2012 is hereby set aside. The appeal is hereby remitted back to the Hon. Chief Judge
Kebbi State to be determined at the Appeal Section of the Kebbi State High Court.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Awotoye, JCA and I entirely agree that the appeal has merit and it is allowed by me. I abide by all the consequential orders made in the lead judgment.
MUHAMMED L. SHUAIBU, J.C.A.: I entirely agree.
Appearances
Garba Abubakar Shehu, Esq.For Appellant
AND
NO APPEARANCEFor Respondent
