HAKIMI TAKWARE GARBA v. MUHAMMADU DAN LABBO
(2018)LCN/12335(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/S/89S/2017
RATIO
APPEAL: JURISDICTION OF THE SHARIA COURT OF APPEAL
“By virtue of the Sub-section 2, the Sharia Court of Appeal has the exclusive jurisdiction to hear and determine any appeal on any question of Islamic personal law regarding marriage, wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim, infant, prodigal or person of unsound mind who is a Muslim and maintenance/guardianship of a muslim who is physically or mentally infirm.” PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: POWER OF JURISDICTION
“Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity, because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, theaction will be like an animal drained of its blood. See CHIEF U. UTIH & ORS v. JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR V CO-O. ASSO. OF PROF. ING (2003) 5 NWLR (Pt 813) 303, NDAEYO V OGUNAYA (1977) 1 SC 11 @ 24 – 26.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
HAKIMI TAKWARE GARBA Appellant(s)
AND
MUHAMMADU DAN LABBO Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the decision of the YAURI/ZURU judicial Division of the Kebbi State Sharia Court of Appeal in Appeal No SCA/KBS/SHA/8/2017 delivered on the 6/4/2018 which overturned the decision of the trial Upper Sharia Court Shanga and declared title to the disputed farm lands in favour of the respondent on ground of the Islamic principle of prescription (Hauzi).
As claimant before the lower Court, the Appellant who is a village head of Takware town in Kebbi State, sued the Respondent for a declaration of title to five farm lands belonging to the Ruling House under the supervision of the Village Head of Takware.
As defendant, the Respondent denied the Appellant’s claim. The matter proceeded to trial. Both parties called witnesses and the Court visited the farm lands in dispute. Judgment was entered for the Appellant.
Respondent being dissatisfied, appealed to the lower Court which overturned the decision of the Trial Court and decided in favour of the Respondent on the basis of Islamic Principle of Prescription (Hauzi).
Dissatisfied with the judgment of the lower Court, the Appellant now commenced this appeal by Notice of appeal filed on the 19/04/2018 predicted upon two grounds to wit: –
GROUND 1
The judgment of the lower Court is against the weight of evidence.
GROUND 2
The Lower Court (Sharia Court of Appeal) erred in law when it entertained and adjudicated on a matter which it has no jurisdiction to adjudicate upon.
PARTICULARS OF ERROR
a. The matter before the Lower Court borders on land dispute and declaration of title to land.
b. The Lower Court has no Jurisdiction to entertain matters that borders on land dispute and title to land as its jurisdiction is restricted by Section 277 (1) and (2) of the Constitution Federal Republic of Nigeria 1999, (as amended) to only issues related to Islamic Personal Law.
c. The matter before the Lower Court borders on land dispute and declaration of title to lands and therefore, not an issue related to Islamic Personal Law.
From the two grounds, learned Appellant counsel distilled two issues for determination, namely:
1. Whether the Lower Court has jurisdiction to entertained and adjudicated over a matter concerning declaration of title to land (Distilled from ground two of the Grounds of Appeal).
2. Whether the Lower Court was right in declaring title over disputed farms to the Respondent by relying on the Principle of Prescription (Hauzi) as against the decision of the Trial Court that was based on the testimonies of the witnesses to both parties. (Distilled from ground one of the Grounds of Appeal).
At the hearing of the appeal on the 6/11/2018, the Respondent’s counsel was shown to have been served with hearing notice and also with the Appellant’s brief of argument on the 2/8/2018 but was absent from the Court and without filing any brief of argument before the Court. The time for filing the Respondent’s brief of argument having expired and without any application for extension of time to do so before the Court, HANNAFI DAN MAIGORO who represented the Appellant’s counsel was allowed to argue the appeal. This appeal was therefore argued as a non-contested appeal. That notwithstanding, the appeal has to succeed or fail on the strength of the Appellant’s case. The absence of the Respondent’s brief is not an open or automatic ticket for the success of the appeal. Though the Respondent is deemed in law to have conceded the argument canvassed in the Appellant’s brief, the sustainability of the appeal depends on its own strength and will swim or sink on its legal value and not on the absence of the Respondent’s brief. See Echere Vs Ezirike (2006) 12 NWLR (Cpt 994) 3861, Akanbi Vs Alatede (2006) FWLR (Pt 11) 1928.
Arguing the appeal, the learned appellant’s counsel submitted that by the Appellant’s statement of claim before the trial Court, the claim is squarely for a declaration of title to land between the contending parties which ousts the jurisdiction of the lower Court by virtue of Section 277 of the Constitution of the Federal Republic of Nigeria (as amended) which provisions, he reproduced. The cases of BOYI V HASSAN (2001) 18 NWLR (PT744) 41@48, MAGAJI V MATARI (2000) 5 SC 52 were referred to in urging us to resolve the issue in favour of the appellant.
The simple question that will determine this issue is whether from the Appellant’s claim before the trial Court, the Sharia Court of Appeal, (the lower Court) was competent to have entertained the appeal from the trial Upper Sharia Court Shanga.
It has long being settled over time that the jurisdiction of a Court is determined by the plaintiff’s claim and not by the defendant’s defence and this is determined by merely looking at the plaintiff’s statement of claim to see the nature of the claim. See ADEYEMI V OPEYORI (1976)7-9 SC 31, AGBULE WARRI REFINARY & PRETROCHEMICAL CO.LTD (2013)6 NWLR (PT 1350) 318. In the case of AFRICAN PETROLEUM plc. V. AKINNAWO (2012) 4 NWLR (part 1289) 100 at 115 para A-D the Court held:
“In considering whether or not a Court has jurisdiction or competence to entertain an action, it is only the plaintiff’s claim as endorsed on the writ of summons and the statement of claim that need to be examined by the Court. In other words, it may entertain a case and arrived at solely, on the facts disclosed in the statement of claim.”
Therefore, to determine whether the lower Court is vested with the requisite jurisdiction to entertain the case, the Appellant’s statement of claim before the trial Court is the reference point.
The statement of claim as reproduced at page 1 of the record of appeal reads thus:
I, Garba Hakimi is suing Muhammadu Dan Labbo before this Hon. Court. This is because of the issue of five (5)-farms which belonged to the ruling house; he just went and started farming in them without permission. The farms are as follows:
1. Jajja Lake farm
2. 1st and 2nd Gebbe farm
3. Dan Marmaro in Madaddala Lake, farm
4. Dogondaji farm
I tried to eject him out of the farms but he refused. As such I reported him before the District Head of Dutsin-Mari. Initially he agrees to vacate the farms and we were taken before the police so as to established that he vacated the farms. He signed that he will leave the farms and witnesses were drawn. But he went again and entered the farms. As such I reported him so that he will vocate the farms because they belonged to the ruling authority.
It is crystal clear from the reproduced statement of claim that the appellant’s claim at the trial Court is over title to 5 mentioned farm lands belonging to the Takware Ruling House. The disputed farmlands is the subject matter of the claim and the nature of the dispute over the subject matter, is the ownership of the farmlands. The claim is simply that of land involving the question of ownership of title to land.
Now, the scope of the jurisdiction of the lower Court is as provided in Section 277 (1) & (2) a-e It provides:
(1) The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this section.
(2) For the purposes of Subsection (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 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 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.?
By virtue of the Sub-section 2, the Sharia Court of Appeal has the exclusive jurisdiction to hear and determine any appeal on any question of Islamic personal law regarding marriage, wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim, infant, prodigal or person of unsound mind who is a Muslim and maintenance/guardianship of a muslim who is physically or mentally infirm.
However, the avowed position of the law by concordant judicial interpretation of this oft invoked provision is that in the exercise of its appellate and supervisory jurisdiction, the Sharia Court of Appeal must restrict itself to the questions of Islamic personal law regarding WAKF, GIFT, WILL, OR SUCCESSION where the endower, donor, testator or deceased is a muslim. See the oft cited cases of ABUJA V BIZI (1989) 5 NWLR (pt.119) 120, BOYI V HASSAN (2001)NWLR (PT744)41 @ 48, MAGAJI v. MATARI [2000] 8 NWLR (PT ,670) 722. This jurisdiction, it has become trite, does not include disputes on claim of title to land simpliciter. See SALATI V SHEHU (1986) 1 NWLR (PT15) 198 MAGAJI v. MATARI (supra) among several other decisions of the apex Court and this Court.
The scope of the jurisdiction of the Sharia Court of Appeal was succinctly stated by Karibi Whyte JSC in his concurrent judgment In Magaji v. Matari (supra), when he stated thus:-
“The intention of the Constitutional provision, which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject matters of Islamic Personal Law. The intention cannot be subverted by strained Constitution of the provision to give it an unintended meaning.”
The jurisdiction of the Court to hear and determine appeals on land disputes is limited to disputes on land involving questions of Islamic Personal Law on the specified items in paragraph (a) – (d). In his judgment in MAGAJI V. MATARI (Supra) Mohammed JSC aptly explained the scope of jurisdiction of the Court with regards to land matters in these words:
“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim”.
Therefore from the litany of decided authorities and the statement of claim before the trial Court, no judicial erudition is required to come to the irresistible conclusion that the appellate and supervisory jurisdiction of the lower Court does not extend to entertaining this action which is purely on dispute over ownership of land simpliciter, and is not related to any dispute involving questions of Islamic personal. The dispute only raises the question of title to the disputed piece of land as between the Appellant and the respondent. It has nothing to do with any issue of Islamic law on land matter regarding or connected with a wakh, gift, will, or succession which requires the application of Islamic law. In other words, the claim before the lower Court is completely outside the purview of the jurisdiction of the lower Court. The lower Court has no jurisdiction to entertain the appeal.
Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceedings before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity, because jurisdiction is fundamental to the proper hearing of a cause. This is why jurisdiction has been likened to blood that gives life to the survival of an action in Court and without which, theaction will be like an animal drained of its blood. See CHIEF U. UTIH & ORS v. JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR V CO-O. ASSO. OF PROF. ING (2003) 5 NWLR (Pt 813) 303, NDAEYO V OGUNAYA (1977) 1 SC 11 @ 24 – 26.
Where, therefore, a Court adjudicates on a matter without or in excess of jurisdiction, the adjudication amounts to a nullity. It is an exercise in futility and amounts to nothingness.
Once a Court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication amounts to a nullity; it has no legal force whatsoever and it is as if it never took place because of the incompetence of the Court to have entertained the case ab initio. Such a null decision of the lower Court is entitled, as a matter of course, to be set aside. Accordingly, this appeal succeeds and is allowed. The decision of the lower Court delivered on the 6/4/2018 is hereby set aside and the appeal from the decision of the trial Court, the Upper Sharia Court Shanga delivered on the 9/11/2017 is referred to the Kebbi State High Court for adjudication.
The resolution of this issue in favour of the appellant renders the second issue otiose.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned brother AMINA AUDI WAMBAI, 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. I abide by all consequential orders of Court.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance a draft copy of the Judgment just delivered by my learned Brother Justice Amina Audi Wambai and I agree that the Appeal succeeds. It is hereby allowed. The decision of the Yauri/ Zuru Judicial Division of the Kebbi Sharia Court of Appeal in Suit No. SCA/KBS/SHA/8/2017 delivered on 6th April, 2018 is hereby set aside. I abide with all the consequential orders contained in the lead Judgment.
Appearances:
N.S. Gulma, Esq.For Appellant(s)
Respondent not RepresentedFor Respondent(s)
