DASA v. MAZUGA
(2020)LCN/14774(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/S/85S/2018
RATIO
JURISDICTION: FUNDAMENTAL NATURE OF THE QUESTION OF JURISDICTION
Jurisdiction is a radical and fundamental question of competence. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. The fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their jurisdiction from the Constitution or other enabling statutes. Therefore, the issue of jurisdiction goes to the root of the matter and sustains or nullifies the decision of the Court on the matter. PER TALBA, J.C.A.
JURISDICTION: JURISDICTION OF THE SHARIA COURT OF APPEAL OF A STATE
The jurisdiction of the Sharia Court of Appeal of a State is constitutional and circumscribed as prescribed in Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The jurisdiction of the Sharia Court of Appeal can only be exercised within the scope and limit prescribed by the Constitution. It has been variously and repeatedly held by the apex Court and this penultimate Court in plethora of cases that it is the plaintiff claims at the trial Court that determine the jurisdiction of Court. Equally it has been held that the Sharia Court of Appeal lacks jurisdiction to determine any issue involving title to land.
See ABUJA VS BIZI (Supra), JIJI VS ABARE(1999) 1 NWLR (pt.886) 243 and TUMFAFI VS MERESNO (1993) 1 NWLR (pt.269) 378.
In ASAYAYAH VS ASAYAYAH (2014) 2 SQLR (PT.1) 51 @ 69-70 PARAGRAPH F-A OREDOLA JCA stated thus;
“It is saddening and worrisome to note that despite the numerous authorities on the point, pronounced over the years by both the Court of Appeal and Supreme Court, most of our Sharia Courts of Appeal, have persisted in their serial and incessant habit of reneging and or observing by non-compliance with applicable constitutional provisions which pertain to their jurisdictions they do this with seeming impunity and the most unfortunate aspect. It is wholly uncalled for and somewhat unpardonable. Sharia Courts of Appeal are creations of statutes, under the present or prevalent constitutional arrangements in Nigeria, thus, they are bound to obey and comply with such constitutional or statutory provisions until the same are validly and effectively amended.
Indeed, the issue of choice is non-existent and that of defiance is self-defeatist. It is noteworthy and that is another bothersome aspect, the fact that presently majority of Khadis on the bench of the Sharia Courts of Appeal are qualified legal practitioners duly called to the Nigerian Bar and registered to practice as such at the Supreme Court of Nigeria. Additionally, upon being appointed as such Khadis, they swore to both the oath of office and allegiance which bind them to invoke and uphold constitutional provisions. A word they say should be more than enough for the wise. I say no more.” PER TALBA, J.C.A.
COURT: DUTY OF SHARIA COURTS OF APPEAL TO APPLY ALL THE DECISIONS OF THE COURT OF APPEAL AND SUPREME COURT
The Sharia Courts of Appeal are absolutely bound to apply all the decisions of the Court of Appeal and the Supreme Court. This is in line with the principle of stare decisis. The incessant and deliberate refusal of the Khadis to apply the decisions of the Superior Courts on title to land and other matters outside the preview of Section 277 (2) a-e of the Constitution of the Federal Republic of Nigeria (as amended) is a very serious dereliction of duty. It is highly deprecated. It is a judicial misconduct and no doubt a judicial rascality. This ugly situation must stop before the national Judicial Council is called upon to exercise its disciplinary power over such erring Khadis. PER TALBA, J.C.A.
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
RUKNA DASA APPELANT(S)
And
MAGANA MAZUGA RESPONDENT(S)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): At the Sharia Court Danko Holden at Danko, Kebbi State, the claim laid by the Respondent as plaintiff before the trial Judge reads as follows:
“I Magana Mazuga Yalmo is suing Rukna Dasa over the issue of farm I leased to him and the farm I lent to him I want him to vacate my farm since I inherited the farms from my father and my grandfather.”
The respondent now the appellant denied the claim. After hearing witnesses, the trial Court entered judgment in favour of the plaintiff. The appellant was aggrieved by the decision of the trial Court and he appealed to the Upper Sharia Court Zuru. And after hearing the Upper Sharia Court Zuru dismissed the appeal.
The appellant was dissatisfied with the decision of the Upper Sharia Court and he appealed to the Sharia Court of Appeal Kebbi State, Holden at Yauri/Zuru division (the lower Court). After hearing the appeal, the lower Court dismissed the appeal and affirmed the decision of the trial Court and Upper Sharia Court. Being further aggrieved by the decision of the lower Court, the appellant appealed to this
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Court vide a notice of appeal filed on 24th day of July, 2017, with one ground of appeal which reads
GROUND ONE
The Kebbi state Sharia Court of Appeal lacks the jurisdiction to hear and determine the instant case which is in respect of a declaration of title to land and not issue of Islamic personal law and therefore renders its decision null and void.
PARTICULARS
1. Whereas from the claim of the plaintiff before the trial Court it is a claim of leasing a form to the appellant.
2. Whereas the issue of leasing the land in dispute is not an issue of Islamic personal law rather title to land.
3. Whereas the Sharia Court of Appeal lacks the jurisdiction to entertain the appeal and thus renders its decision null and void.
At the hearing of the appeal on the 24th day of September, 2020, the respondent was present in Court but he was not represented by counsel, and no respondent’s brief was filed. Garba Abubakar Shehu of counsel adopted the appellants brief of argument filed on 6th day of November, 2018. He urged the Court to allow the appeal and remit the case back to the High Court of Justice Kebbi State for trial.
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From the sole ground of appeal, the appellant submitted one issue for determination thus;
Whether the claim of the appellant as 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.
The crux of this appeal is the competence of the lower Court to entertain the appeal before it. For this reason, I will reframe the issue for determination to read thus;
Whether having regard to the claim before the trial Court, the lower Court has jurisdiction to hear and determine the appeal.
Arguing the appeal, the appellants counsel submitted that the jurisdiction of a Court can be determined from the plaintiffs claim.
He relied on the case of AFRICAN PETROLEUM PLC VS AKINNAWO (2012) 4 NWLR (PT. 1289) 100 AT 115 para A-D, where this Court held.
“In considering whether or not a Court has jurisdiction or competence to entertain an action, it is only the plaintiffs claim as endorsed on the writ of summons and the statement of claim that need to be examined by the Court.
In other words, the legal position as to competence or otherwise of a trial Court to entertain a case is arrived at solely on the facts disclosed in the statement of claim.”
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See also GOVT. OF KWARA STATE VS LAFIAGI (2005) 5 NWLR (pt. 917) 139 @ 151, USMAN VS BABA (2005) 5 NWLR (pt. 916) 113.
Learned counsel submitted that from the claim of the respondent/plaintiff before the trial Court was for a declaration of title to land, it has nothing to do with Islamic personal law. Therefore, the lower Court lacked the jurisdiction to entertain the appeal from the lower Court/Upper Sharia Court as it is not in dispute that declaration of title does not fall within the purview of Islamic personal law as expressly contemplated by the provision of Section 277(1) and (2) a-e of the 1999 Constitution of Federal Republic of Nigeria. He relied on the following cases:
UMMARA FANNAMI VS BUKAR SARKI (1961-1989) 1 SH.LR 94 where this Court held thus;
“Question of dispute of ownership of lands properly does not qualify as a dispute involving Islamic personal law”
And in MAGAJI VS MATARI (2000)2 NSCQR (PT. 1) 636 @ 639, the Supreme Court held thus;
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“Land dispute can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic personal law regarding a Waqf, gift, will, succession where the endower, donor, testator, deceased person is Muslim. The dispute between the appellant and respondent does not involve any of the matters I mentioned above.
The Sharia Court of Appeal has therefore no jurisdiction to adjudicate on the dispute.”
See also ALH. YAHAYA SALEMA & 1 ANOR VS ALH. MAMMAN & 1 ANOR (2006) 3 SLR (pt. 1) 203 @ 212, ABUJA VS BIZI (1989) 5 NWLR (PR. 119) 120,
SAFIYALARAU VS BAZAI KORAU (1998) 4 NWLR (pt.542) 212 @ 222.
The learned counsel urged the Court to allow the appeal and to set aside the decision of the lower Court and transfer the case to the appellate division of the High Court of Justice Kebbi State for hearing.
Jurisdiction is a radical and fundamental question of competence. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. The
5
fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their jurisdiction from the Constitution or other enabling statutes. Therefore, the issue of jurisdiction goes to the root of the matter and sustains or nullifies the decision of the Court on the matter.
The jurisdiction of the Sharia Court of Appeal of a State is constitutional and circumscribed as prescribed in Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The jurisdiction of the Sharia Court of Appeal can only be exercised within the scope and limit prescribed by the Constitution. It has been variously and repeatedly held by the apex Court and this penultimate Court in plethora of cases that it is the plaintiff claims at the trial Court that determine the jurisdiction of Court. Equally it has been held that the Sharia Court of Appeal lacks jurisdiction to determine any issue involving title to land.
See ABUJA VS BIZI (Supra), JIJI VS ABARE(1999) 1 NWLR (pt.886) 243 and TUMFAFI VS MERESNO (1993) 1 NWLR (pt.269) 378.
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In ASAYAYAH VS ASAYAYAH (2014) 2 SQLR (PT.1) 51 @ 69-70 PARAGRAPH F-A OREDOLA JCA stated thus;
“It is saddening and worrisome to note that despite the numerous authorities on the point, pronounced over the years by both the Court of Appeal and Supreme Court, most of our Sharia Courts of Appeal, have persisted in their serial and incessant habit of reneging and or observing by non-compliance with applicable constitutional provisions which pertain to their jurisdictions they do this with seeming impunity and the most unfortunate aspect. It is wholly uncalled for and somewhat unpardonable. Sharia Courts of Appeal are creations of statutes, under the present or prevalent constitutional arrangements in Nigeria, thus, they are bound to obey and comply with such constitutional or statutory provisions until the same are validly and effectively amended.
Indeed, the issue of choice is non-existent and that of defiance is self-defeatist. It is noteworthy and that is another bothersome aspect, the fact that presently majority of Khadis on the bench of the Sharia Courts of Appeal are qualified legal practitioners duly called to the Nigerian Bar and registered to practice as such at the Supreme Court of Nigeria. Additionally, upon
7
being appointed as such Khadis, they swore to both the oath of office and allegiance which bind them to invoke and uphold constitutional provisions. A word they say should be more than enough for the wise. I say no more.”
The Sharia Courts of Appeal are absolutely bound to apply all the decisions of the Court of Appeal and the Supreme Court. This is in line with the principle of stare decisis. The incessant and deliberate refusal of the Khadis to apply the decisions of the Superior Courts on title to land and other matters outside the preview of Section 277 (2) a-e of the Constitution of the Federal Republic of Nigeria (as amended) is a very serious dereliction of duty. It is highly deprecated. It is a judicial misconduct and no doubt a judicial rascality. This ugly situation must stop before the national Judicial Council is called upon to exercise its disciplinary power over such erring Khadis.
Consequently, the sole issue is resolved in favour of the appellant. The appeal is allowed. The judgment of the lower Court delivered on 17th day of July, 2017 is suit NO: SCA/KBS/ZR/16/2017 is set aside. The case is remitted back to the Honourable
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Chief Judge of Kebbi State for trial by the High Court of Justice in its appellate jurisdiction.
No order for cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment just delivered by my learned brother, Talba, JCA. I fully agree with his reasoning and conclusion that this appeal is meritorious and ought to be allowed. I abide by all the consequential orders in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading a draft of the judgment just delivered by my learned brother – ABUBAKAR M, TALBA – JCA and I am in complete agreement that the Appeal is meritorious.
I agree equally with the reasoning and conclusion is remitting the case back to the Hon. Chief Judge for re-assignment to the appropriate jurisdiction for a trial de novo. I abide by other consequential orders made thereto.
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Appearances:
Garba Abubakar, Esq. For Appellant(s)
Yalmo Village of Danko District of Danko/Wasagu Local Government For Respondent(s)
