BISHIR SUKOLA v. RABE SHEHU & ORS
(2018)LCN/12146(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/K/89/2015
RATIO
SHARIA LAW AND PROCEDURE: WHETHER THE SHARIA COURT HAS POWER TO HEAR ON URBAN LAND MATTER
“It was held by the Supreme Court, in the earlier case of Salati v Shehu (1986) 1 NWLR Part 15 Page 198, per Uwais JSC (as he then was) that: ‘Accordingly, the Area Courts do not have jurisdiction to determine any dispute pertaining to land in designated urban areas.'”PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
BISHIR SUKOLA Appellant(s)
AND
1. RABE SHEHU
2. HASAMATU SHEHU
3. YAHAYA SHEHU Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
The facts leading to the appeal before this Court are that the Respondents, as Plaintiffs, filed a suit against the Appellant before the Upper Sharia Court, Charanchi, Katsina State (hereafter referred to as ‘the trial Court’), claiming title over a piece of land situated at Doka Village in Charanchi Local Government Area of Katsina State. The Court heard the case and on 24/9/09 entered judgment in favour of the Appellant, dismissing the Respondents’ case. Dissatisfied, the Respondent appealed to the High Court of Katsina State. The High Court, sitting in its appellate jurisdiction, (hereafter referred to as ?the lower Court?), in a judgment delivered on the 8th day of May, 2012 by Hon. Justices Sada Abdulmumini and Musa D. Abubakar, set aside the judgment of the trial Court, on the ground that the provisions of the Modification of Laws (Katsina State) Order 1988 and the Designation of Land in Urban Area (Katsina State) Order 1998 did not confer jurisdiction on the trial Court to entertain any dispute on land within 5 km radius from the centre of Charanchi Township.
Dissatisfied, the Appellant, with leave of this Court granted on 2/6/2014, appealed against the judgment of the lower Court. A Notice of Appeal, containing three grounds of appeal, was filed on 6/6/14 in consequence.
The Appellant’s Counsel, I. K. Shadrack Esq., and Anjov Teryange Esq., of Na-Alhaji Law firm No. 1, Mazoji Street, Kofar Kaura Layout, Katsina, in the Appellant?s Brief of Argument filed on 28/10/15, formulated two issues for determination to wit:
i) Whether the High Court of Justice Katsina was right in holding that the Upper Sharia Court Charanchi lacks the jurisdiction to hear and determine the matter concerning the land in dispute on a mere assertion and/or submission of a counsel that the said land falls within urban area.
ii) Whether upon a proper construction of the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the doctrine of stare decisis, the judgment of High Court of Justice Katsina in suit No: KTH/32A/2009 can still stand same having been delivered against the established principles of law and judicial precedence.
The Respondents filed no Briefs of Argument, consequent upon which the Appellant sought and was granted leave to set the appeal down for hearing on the Appellant’s Brief alone.
I shall, in consequence, adopt the issues for determination raised by the Appellant, the 1st of which is:
Whether the High Court of Justice Katsina was right in holding that the Upper Sharia Court Charanchi lacked the jurisdiction to hear and determine the matter concerning the land in dispute on a mere assertion and/or submission of a counsel that the said land falls within an urban area.
Learned Counsel, arguing this issue in the negative, submitted that the lower Court erred in holding as follows:
“The provisions of modification of laws (Katsina State) Order 1988 and the Designation of land in urban Area (Katsina State) Order 1998 did not confer jurisdiction to the trial Court to entertain any dispute on land within 5 km radius from the centre of Charanchi Township.”
Learned Counsel contended that the lower Court based its decision, not on the evidence before it or before the trial Court, but on the address/submissions of Counsel, as there was nothing in the record of proceedings of the trial Court or the lower Court to prove this. The issue of whether a particular piece of land is within an urban area and therefore subject only to the jurisdiction of the High Court is a matter of evidence and not by mere assertion or speculation or submission of a counsel, he submitted, citing the case of Ogu vs Nwaohia (2000) FWLR (Pt. 6) Page 922 at 925 Para H – A, Malam Audu Kano vs Sarkin Oka (2006) SSC (Pt. 111) Page 184 at 190 – 191 Para 82 – 87 and the case of Adene vs Dantunbu (1994) 2 NWLR (Pt. 328) 509 at 525.
It is a settled principle of law, he argued, that the submission of counsel however brilliant, is not a substitute for evidence, citing the case of UBA Plc vs Akparabong Community Bank (Nig) Ltd (2005) 35 WRN Pg 98 at 148 – 149 and A.D.F.P.I. vs N.I.W.A. (2012) FWLR (Pt. 611) Pg 1563 at 1579 Para D – E . This finding thus resulted in a grave error in law which led to a perverse decision, thereby occasioning a miscarriage of justice.
Now, the claim of the Respondents before the trial Court, was that the farmland which the Appellant lays claim to, was given as a loan to his father by their (Respondents’) father. However, on the death of his father, the farm land was shared as part of the estate of the Appellant’s father. When all entreaties and interventions for reversion of the land to them failed, the Respondents filed the instant action. Three witnesses each testified for the parties. The trial Court, in its judgment, held that the Appellant had discredited the witnesses called by the Respondents and had successfully proved that the farmland had been in the possession of his family for over thirty years.
It accordingly held:
the farmland in dispute between Rabe Shehu, Hussamatu and Yahaya Doka (Respondents) be left in the possession of Bishir Sukola (Appellant).
The Respondents, in their appeal before the lower Court, distilled four issues for the lower Court’s determination, while the Appellant distilled three issues, which latter three issues were adopted by the lower Court, namely:
i) Whether the trial Court assumed jurisdiction competently in entertaining the appellant’s case.
ii) Whether appellants proved their case before the trial Court as required under Islamic Law to entitle them to judgment? And
iii) Whether there is miscarriage of justice occasioned when the matter was decided in favour of the respondents considering the quantum of evidence before the trial Court (sic)?
To recapitulate, the contention of the Respondents, as Appellants before the lower Court, was that the lower Court erred by not realizing that it had no jurisdiction to entertain the suit as the land in dispute falls within 2km radius from Charanchi town. That by the combined effect of the provisions of the Modification of Laws (Katsina State) Order 1988 and the Designation of Land in Urban Area (Katsina State) Order 1998, the trial Court lacked jurisdiction to entertain any dispute on land within 5km radius from the centre of the said township. The Respondent’s Counsel however responded that the question could not be determined on the mere assertion of a party before it but must be established by evidence, through an approved map showing that the land in dispute falls within the designated urban area. Authorities were cited by Counsel.
The Court, in its judgment, noted the importance of jurisdiction to an action and the first factor to be decided, and held as follows:
“It is apparent on the records of proceedings that the trial Court failed to consider its competence considering the subject matter of the dispute. The provisions of Modification of Laws (Katsina State) Order 1998 did not confer jurisdiction to the trial Court to entertain any dispute on land within 5 km radius from the centre of Charanchi Township. The trial Court should have first determined its competence before proceeding with the conduct of the matter. It is our finding that the issue of jurisdiction is well grounded and should succeed and we so hold.
Having determined issue No. 1 which borders on jurisdiction, we do not find it necessary to go into any details on the other 2 issues formulated for determination as doing so would only amount to mere academic exercise. In the whole, the appeal succeeds and is hereby allowed. The judgment of Upper Shari’a Court Charanchi given on 24/09/2009 is hereby set aside. We make no order as to cost.”
Learned Appellant’s Counsel has cited the unreported case of Mallam Audu Kano v Sarkin Oka (2006) SSC Part 111 Page 184 at 190-191 Para 82-89 per Ibrahim Tanko Muhammad JCA (as he then was) where it was held:
“It is undoubtedly settled law that only High Court has jurisdiction to entertain action in respect of landed property which is within urban area. However, a land is not to be treated as coming within Urban Area on mere assertion of a counsel or party to a case but upon established evidence comprising of an official map showing that the landed property in dispute has fallen within an urban area.”
It was held by the Supreme Court, in the earlier case of Salati v Shehu (1986) 1 NWLR Part 15 Page 198, per Uwais JSC (as he then was) that:
“Accordingly, the Area Courts do not have jurisdiction to determine any dispute pertaining to land in designated urban areas.”
The important question is thus to ascertain whether the land fell within the designated urban area and how to ascertain this fact.
A related issue arose in an appeal to the Supreme Court in the case of Adene v Dantunbu (1994) 2 NWLR Part 328 Page 509. Uwais JSC (as he then was), reading the lead judgment, at Page 524 Para E, put the question thus:
“Does the land in dispute in the present case fall within the area designated ‘urban area’ in the 1982 order or in the earlier order of 1978
While agreeing with the Appellant in that case that the trial Court was bound to take judicial notice of the Order and the plan referred to in the Order, the Supreme Court held that it was not possible to ascertain from the plan whether the land in dispute fell within an urban area.
The Court further held, at Page 525 Para E:
it is not only by looking at a map or plan that an urban area can be determined. The evidence of a Surveyor, who is an expert in that field, can be relied upon.”
A similar question came up for determination before this Court in the case of Nafiu Gambo Haruna v Alhaji Lawal Yaro (2016) LPELR-41554(CA) Pages 11 and 12.
Bdliya JCA, reading the lead judgment, held as follows:
“Learned Counsel to the Appellant did contend that the learned trial judge of the lower Court ought to have taken judicial notice of the Legal Notice (supra) though not in evidence before him, and acted on same to hold that the property in dispute must be taken to be in an Urban Area as spelt out in the said legal Notice. Counsel to the Respondent contended that it is not sufficient to just refer to the Legal Notice wherein the Urban Areas have been specified. That there must be evidence from an expert, a surveyor or a map showing clearly the location of the disputed land within the designated Urban Area. I think learned counsel to the respondent was on a formidable ground in his submission. For as enunciated in the cases of Ogu v. Nwaobia (2000) FWLR Pt. 6 P. 922 @ 952.
“…whether or not a particular piece of land in dispute is within urban area and so subject only to the jurisdiction of the High Court is a matter of evidence, It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area. It is not enough for counsel to stand up in the Court and simply state that the disputed piece of land is within an urban area without leading evidence to establish that fact.”
I am in total agreement with the stance of my learned brother above. It is not enough for the lower Court to rely on Respondents’ Counsel’s submission that the land in dispute fell within an urban area. This fact must be proved by the evidence of an expert in that field, preferably a surveyor, designating the area as an urban area. The mere ipse dixit of Counsel or even a witness, without more, is insufficient proof of an urban area, I hold.
Counsel’s submission, no matter how brilliant, has been severally held not to constitute evidence or legal proof. See Oforishe v Nigerian Gas Co., Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para D per Rhodes-Vivour JSC; Oyeyemi v Owoeye (2017) 12 NWLR Part 1580 Page 364 at 403 Para E-F per Bage JSC; Obidike v State (2014) 10 NWLR Part 1414 Page4 53 at 77 Para D-E per Fabiyi JSC.
I thus agree with learned Counsel to the Appellant that the lower Court erred in holding that the Upper Sharia Court lacked jurisdiction to have determined the matter brought before it, upon the mere assertion of Counsel that the land falls within an urban area, without even so much as an attempt to tender the Legal Notice before the trial Court.
Indeed, I find the appeal of the Respondents before the lower Court on this ground very curious. It was the Respondents who instituted the suit at the Upper Sharia Court (trial Court) for ownership of the land in dispute. Did they not contemplate at that stage that the lower Court may not have had jurisdiction? They never sought to discontinue the suit on the ground that the suit they themselves instituted was before the wrong Court, or to seek its transfer to the High Court. It was only when the case went against them that they now changed gear that the Court before whom they instituted the action and participated until judgment, had no jurisdiction! It appears to be a case of ‘sour grapes’!
This, notwithstanding, as held by me above, the mere assertion of their Counsel, with no proof in support, is insufficient reason for the lower Court to have held as it did.
For all the reasons given by me above, this issue is resolved in favour of the Appellant.
The 2nd issue for determination is:
Whether upon a proper construction of the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the doctrine of stare decisis, the judgment of High Court of Katsina State in suit No: KTH/32A/2009 can still stand same having been delivered against the established principles of law and judicial precedence.
Appellant’s Counsel has submitted that the judgment of the lower Court cannot stand, the same having been delivered in outright contravention of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as a result of which the Appellant herein suffered a grave miscarriage of justice. Counsel pointed out that the trial Court delivered its judgment in favour of the Appellant on the 24th day of September 2009. Following appeal to the lower Court, final addresses were taken on 30th day of September, 2010, after which judgment was reserved to a date to be communicated to the parties. Judgment was not delivered by the lower Court until the 8th day of May, 2012, 20 months after final address, disregarding the submissions made before it.
It was Counsel’s submission that the lower Court after such a long passage of time lost the grasp of the facts of the case and was unable to distinguish between the evidence as contained in the records and the mere assertion of Counsel.
Counsel accused the lower Court of a deliberate refusal to be bound by the decision in the case ofMalam Auta Kano vs Sarking Anka (2006) 3 SCR Pt. 3 Page 184 at 190 Para 7 – 22 which was cited before it, with a copy handed over and was thus in clear violation of the principle of stare decisis, which violation led to a wrong conclusion that greatly influenced the judgment of the Court, thereby occasioning a miscarriage of justice to the Appellant. He cited the case of Lead Merchant Bank Ltd vs PTF (2005) All FWLR (Pt. 270) Pg 2082 at 2090 Para H.
Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), stipulates as follows:
(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
This statute has been pronounced upon in a number of cases, the decision of the appellate Courts being that for a party to rely on Section 294(1) to invalidate a decision delivered outside the period of the three months stipulated, he must show that he has suffered a miscarriage of justice thereby. See Savannah Bank of Nigeria Ltd v Starite Industries Overseas Corporation (2009) 8 NWLR Part 1144 Page 491 at 511 Para B-C per I.T. Muhammad JSC; Dahiru v Kamale (2005) 9 NWLR Part 929 8, Nagebu Co. Nig. Ltd v Unity Bank Plc (2014) 7 NWLR Part 1405 Page 42 at 72 C-H per Abiru JCA.
The dangers inherent in holding otherwise, were stated in the case of Owoyemi v Adekoya (2003) 18 NWLR Part 852 Page 307 at 339 Para C – D per Uwaifo JSC where His Lordship opined that: “An otherwise well-considered judgment in which either party could be the winner must be set aside even if the judgment was given one day outside three months. All that a party who did not like the judgment needed to do as an appellant would simply be to point out that there was non-compliance with the three months’ period.”
Their Lordships, in that case, per the same learned Jurist, giving the rightful position, held at Page 340 Para A – C:
the true position now is that a party should not just go on appeal merely on the ground that the judgment he wants set aside was given outside the three months’ period. He will have to fight the appeal on all known grounds which can render the judgment unsustainable, not merely on the assessment of facts. Indeed, an appellant with good grounds of appeal may have no need at all to canvass a ground on non-compliance with the three months’ period except for the purpose of having the Judge (or justices) disciplined by drawing attention of the breach to the Court hearing the appeal in view of Subsection (6) of Section 294 of the 1999 Constitution (formerly Subsection (5) of Section 258 of the 1979 Constitution)
The same Court in the case of Akoma v Osenwokwu (2014) 11 NWLR Part 1419 Page 462 held, per Peter-Odili JSC, at 510 – 511 G – A, as follows:
“These 90 days prescribed even though mandatory cannot be taken that the judgment is rendered a nullity after 90 days would have elapsed on account of the provisions of Subsection (5) of the same Section 294 since there has to be established a miscarriage of justice as a result of the delay between the conclusion of the trial and addresses as against the delivery of the judgment, the main issue is not the length of time but on the effect the delay has produced in the mind of the Court in terms of whether the delay had apparently affected the Court’s perception, appreciation and evaluation of the case and if the mind of the Court was impaired thereof then the intervention of the appellate court is called for (sic).”
In the instant case, there was no trial before the lower Court, to raise the presumption that the trial Court had forgotten the facts before it, as what was before the Court were written submissions of Counsel. The Court cannot therefore be said to have lost its impression, appreciation or evaluation of the case.
Thus, even though, as I have observed above under consideration of Issue 1, the lower Court made an error in holding as it did, this error cannot be attributed to the length of time it took to deliver judgement. I thus resolve the 2nd issue for determination against the Appellant.
However, by reason of the resolution of the 1st issue for determination in favour of the Appellant, which issue determines this appeal, I hold that the lower Court erred in setting aside the judgment of the Upper Sharia Court Charanchi. This appeal accordingly succeeds. The judgment of the lower Court is hereby set aside. Parties shall bear their respective costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading the judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA albeit in its draft form. I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read the draft of the lead judgment delivered by my learned brother, Adefope-Okojie, JCA. He has succinctly treated the issues for determination in this appeal and in my view correctly came to the conclusion that the appeal succeeds and the judgment of the lower Court be set aside.
I find nothing useful to add. I too order that parties to bear their respective costs.
Appearances:
Musa Zakari For Appellant(s)
Respondents not represented For Respondent(s)
