GERO KACHACHA MAIDAJI v. RUWA RUGGA BUBE
(2018)LCN/11924(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/S/52S/2017
RATIO
JURISDICTION: JURISDICTION AS TO TITLE TO LAND
“The Sharia Court of Appeal has no jurisdiction in a dispute involving title or ownership of land simpliciter unless if the land in dispute raises one of the questions in Section 277 (2) (a) – (e) of the 1999 Constitution (as amended). Where as in the instant case, the Sharia Court of Appeal wrongly assumes jurisdiction, the whole procedures amount to a nullity. See Muninga Vs Muninga (1997) 11 NWLR (Prt. 527) at 12, Gambo Vs Tukuji (1997) 10 NWLR (Prt. 526) 591 at 600 and Magaji Vs Dattijo (2013) 1 SQLR (Prt 11) 96. I too allow the appeal and abide by the consequential orders.” PER MUHAMMED LAWAL SHUAIBU 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
GERO KACHACHA MAIDAJI Appellant(s)
AND
RUWA RUGGA BUBE Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal sitting at Argungu Zone delivered on 3rd May, 2012 upturning the decision of the Upper Sharia Court Kamba in appeal no. CVA/AP/NO/04/2010.
The respondent herein initiated the suit as plaintiff against the appellant before the trial Sharia Court Fana in suit no. CV/FI/NO/2010, claiming title over a farmland and judgment was entered in favour of the Respondent on 28th June, 2010. (See pages 1- 5 of the Record of Appeal)
The Appellant felt dissatisfied with the judgment of the trial Court and therefore filed an appeal before the Upper Shari’a Court Kamba on 1st July 2010, which appeal was heard and determined on 30th November, 2010 in favour of the Appellant. (See pages 6 – 14 of the Record of Appeal)
The Respondent being aggrieved with the decision of the lower Court, filed an appeal at the Court below on 1st March, 2011 vide notice of appeal no. SCA/KBS/KMB/16/2011 which appeal was heard and determined on 3rd May 2012.
The Appellant was dissatisfied with the judgment of the Court below and therefore appealed to this Court on the following two grounds:
GROUND 1
The Court below erred in law when it assumed jurisdiction in appeal no. SCA/KBS/KMB/16/2011, which emanated from the decision of Upper Sharia Court Kamba in relation to declaration of title to farmland and filed after expiration of thirty (30) days statutory time limit.
PARTICULARS OF ERROR:
1. That the 1 Sharia Court of Appeal sat on appeal no. SCA/KBS/KMB/l6/2011 which emanated from the decision of Upper Sharia Court Kamba in relation to declaration of title to farmland in suit no. CVA/AP/N0/04/2010, which matter is not within the jurisdiction of Sharia Court of Appeal.
2. The Appellant’s claim before the trial Court Upper Sharia Court Kamba in suit no. CVA/AP/NO/04/2010 was for the declaration of title, which was granted by the Upper Sharia Court Kamba.
3. An appeal from Upper Sharia Courts lies to Sharia Court of Appeal where the issue involves Islamic Personal Law and the claim of the Appellant before Upper Sharia Court Kamba was purely for declaration of title, which claim is not within the jurisdiction of the Sharia Court of Appeal.
4. The law is trite that Sharia Court of Appeal cannot adjudicate on issue for declaration of title to land.
5. That the Court below (Sharia Court of Appeal) by a letter dated 17th November, 2011 directed the Trial Court (Upper Sharia Court Kamba) to execute its judgment of 30th November, 2010 for want of diligent prosecution by the Respondent and which judgment was executed by the trial court and subsequently on the 3rd of May, 2012, the Court below summoned the Appellant and heard and allowed the appeal without any application on the part of the Respondent to revive the appeal.
6. That the judgment of Upper Sharia Court Kamba was delivered on the 30th November, 2010 and the Respondent filed appeal no, SCA/KBS/KiVIBIl6/20 11 on the 1st March, 2012 more than 60 days after the time for appeal elapsed.
7. By virtue of Order 3 Rule 2 of the Extant Rules of the Sharia Court of Appeal, appeal from Upper Sharia Court can only be brought within 30 days from the date of order or decision appealed against. And any appeal brought after the expiration of the time limit shall not be heard.
GROUND 2
The Court below erred in law and breached the Appellant’s right to fair hearing when it abdicated it judicial duty in that it failed to allow the Appellant to respond to the application for relisting of appeal no. SCA/KBS/KMB/16/2011 and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
1. The provision of the Sharia Court of Appeal Rules provides for procedure for relisting of appeal before Sharia Court of Appeal.
2. The law is trite that in any application affecting the interest of a person, that person must be given an opportunity to be heard before any pronouncement by the Court of law.
3. The Court below failed to provides the Appellant with an opportunity to be heard in the application for relisting of appeal no. SCA/KBS/KMBIl6/2011 which was struck out on the 17th November, 2011.
The Appellant submitted the following lone issue for the determination of this Court:
“Whether the Court below has the requisite jurisdiction to hear and determine the Appeal from the lower Court” (Distilled from grounds 1 & 2 of the Notice of Appeal).
The learned counsel for the appellant Lagalo Dan Lagalo, Esq., submitted that the issue of jurisdiction has been settled by plethora of authorities, that it is so fundamental and crucial that in any case where there is want of jurisdiction, the proceedings therein will be affected by a fundamental vice and would become a nullity however well conducted they might otherwise be. See KOTOYE V SARAKI (1993) NWLR (PT. 296) 710. Therefore, it is certain that the mere mention of the competence or otherwise of a Court to adjudicate over a matter automatically triggers the evergreen statement of the law laid down in the case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 at 348 para E – G where the apex Court per Bairamian F.J. observed thus:
“Put briefly, a Court is competent when-
(1) it is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within the jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided, the defect is extrinsic to the adjudication.” (Underlining supplied for emphasis)
It was submitted for the appellant that a dispassionate perusal of the Respondent’s claim at the trial Court reveals that the Court below has no requisite jurisdiction to entertain the appeal and such was also not initiated by due process of law. The subject matter of the appeal does not fall within the scope of Section 277(2) of the Constitution. Moreover, the appeal at the Court below was filed outside the statutory time frame allowed.
The competence of a Court to adjudicate over a matter is determined by the claim of the plaintiff. This was settled by the Supreme Court in Elelu-Habeeb v A.G Federation (2012) 40 WRN @ 123 lines 20 – 25 where Ariwoola, JSC in his concurring judgment observed as follows:
“The question is, what document(s) should the Court consider or look as to determine whether or not it has jurisdiction to entertain the matter brought before it?
This has also been settled by the Court that it is the Plaintiff’s claim as contained in the writ of summons and statement of claim or the originating summons and affidavit filed in support as the case may be, that must be examined by the Court …. ”
Relating the above principles of law, it was further submitted that the claim of the Respondent at the trial Court was predicated on declaration of title over a farmland. In this regard, the Court below lacks jurisdiction to adjudicate over issues that are not within Islamic Personal Law including declaration of title to land. See the case of Maishanu v Manu (2007) NWLR (Pt, 1032) page 42, where the Court held thus:
“The Jurisdiction of the Sharia Court of Appeal of a State is constitutional and it is prescribed in Section 277 (2) (a)-(e) of the Constitution of the Federal Republic of Nigeria, 1999. On (a fair construction of) the section, the jurisdiction of the Court is confined and limited to all questions of what is termed as Islamic Personal Law which Islamic personal status is regarding the matters prescribed in Subsection 2 (a) -(e) of Section 277 of the Constitution. These subsections related to marriage and its dissolution, family relationship and guardianship of an infant. It also includes wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim …. In other words, the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic personal law.”
It is clear from the foregoing arguments that the Court below lacks the requisite jurisdiction as the subject matter of the appeal is based on a simple claim of title to farmland, which does not relate to any issue of Islamic personal law. See Mai-Daura v Tundun-Iya (2013) 1 SQLR (Part IV) page 72 at 77 where it was held thus:
” …. From the above provision of Section 277(1) and (2), it is very clear that issue of title to or ownership of land, does not form part of the questions falling within the competence of the Shari’a Court of Appeal to hear and determine. The issues, either of trespass or ownership of land do not constitute questions – wakf, gift, will or succession as provided under Section 277(2) (c) of the Constitution.”
The appeal at the Court below was not filed within the statutory time frame, which factor renders it incompetent and consequently prevents the Court below from exercising jurisdiction.
Moreover, the provision of Order 3 Rule 2 of the Sharia Court of Appeal Rules, requires an appeal from Upper Sharia Court to Sharia Court of Appeal to be brought within 30 days from the date of making the decision. Thus, an appeal brought after the expiration of the time limit is incompetent. The appeal of the Respondent at the lower Court was filed on 91st day after the judgment appealed against was delivered.(See pages 14 and 15 of the Record of Appeal)
Moreover, the claim filed by the Respondent was predicated upon dispute over title to farmland at the trial Court and not in any way related to issues of Islamic personal law. From the foregoing appraisal, the Court below lacks jurisdiction to hear and determine the appeal. The lone issue is therefore resolved in favour of the appellant.
The appeal has merit and is accordingly allowed. The null judgment delivered by the Court below on 3rd May, 2012 is hereby struck out.
The appeal from the Upper Shari’a Court Kamba delivered on 30th November, 2014 is therefore referred to the Appeal Section of the High Court of Kebbi State as the right forum in respect thereof. There shall be no order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, Hussein Mukhtar, JCA and I agree with him that the appeal has merit and should be allowed. The Sharia Court of Appeal has no jurisdiction in a dispute involving title or ownership of land simpliciter unless if the land in dispute raises one of the questions in Section 277 (2) (a) – (e) of the 1999 Constitution (as amended).
Where as in the instant case, the Sharia Court of Appeal wrongly assumes jurisdiction, the whole procedures amount to a nullity. See Muninga Vs Muninga (1997) 11 NWLR (Prt. 527) at 12, Gambo Vs Tukuji (1997) 10 NWLR (Prt. 526) 591 at 600 and Magaji Vs Dattijo (2013) 1 SQLR (Prt 11) 96.
I too allow the appeal and abide by the consequential orders.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, Hussein Mukhtar, JCA and I am in agreement with the reasoning and conclusions in allowing the Appeal as meritorious. I subscribe to the consequential orders made thereto.
Appearances:
Lagalo Dan Lagalo. Esq.For Appellant(s)
A.M. Dole, Esq.For Respondent(s)
