HALADU v. FANTAI
(2021)LCN/15108(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, March 24, 2021
CA/KN/199/S/2017
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
ABDULLAHJI DUNKUN HALADU APPELANT(S)
And
MAGADAN ALH. LABARAN FANTAI RESPONDENT(S)
RATIO
PROVISION OF SECTION 277 OF THE CONSTITUTION REGARDING THE EXTENT OF THE JURISDICTION OF THE THE SHARIA COURT OF APPEAL
The jurisdiction of the Court below is clearly defined by Section 277 of the Constitution, which provides thus: (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 Sub-section (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. PER HUSSEIN MUKHTAR, J.C.A.
WHAT WILL BE TAKEN INTO CONSIDERATION IN DETERMINING WHETHER OR NOT A COURT HAS JURISDICTION
It is an elementary principle of the law that jurisdiction of a Court of law is determined by the plaintiff’s claim as endorsed on the writ of summons and the statement of claim. See Osoh V. Unity Bank Plc (2013) 53 (Pt. 11) Pg. 27. @285. In Musa Dade V. Gambo Na-Hauwa (2006) 3 S.L.R. (Pt. 3) Pg. 26 @ 33, this Court per Daihatu Adamu, JCA (of blessed memory) held thus:- “It is now well settled that the yardstick; or parameter used in ascertaining or determining the Courts jurisdiction (whether trial or appellate Court) is by examination of the plaintiff’s claim as presented before the trial Court. In other words, it is the claim of the plaintiff that will be examined in order to determine and ascertain whether or not the trial Court (and a fortiori an appellate Court) has jurisdiction to decide the case or to hear an appeal as the case may be.” PER HUSSEIN MUKHTAR, J.C.A.
WHETHER THE JURISDICTION OF THE SHARI’A COURT OF APPEAL DOES NOT EXTEND TO ANY MATTER WHICH IS NOT AN ISSUE OF ISLAMIC PERSONAL LAW
The provision of the Constitution, as quoted above is sacrosanct and cannot be circumvented. See the cases of Magaji V. Matari (2000) 8 N.W.L.R. (Pt. 670) Page 722 also reported in (2000) F.W.L.R. (Pt. 18) 237 at 248, and Alhaji Yahaya Salema Rajiya Dije V. Alhaji Mamman & Anor (2006) 3 S.LR. (Pt. 203). In the case of Maishanu V. Manu (2007) NWLR (Pt. 1032) page 42, 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 (contraction) to the section, the jurisdiction of the Court is confined and limited to all questions of what is termed as Islamic personal law which is Islamic status, regarding the matters prescribed in Subsection 2 (a) – (e) of Section 277 of the Constitution. These subsections relate 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 Shari’a Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic personal law.” PER HUSSEIN MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal of Jigawa State, delivered on the 13th day of October, 2016, in Appeal No. SCA/JG/CVA/43/2016.
The dispute had its genesis from 1998 when the Respondent’s late father filed a case against the Appellant’s father before the Auyo Shariah Court in case No. CV/39/1998 accusing him of encroachment into his farmland, which was bought from the Appellant’s late father, which transaction was witnessed by the Appellant himself as one of the witnesses to the sale agreement. Judgment was entered on the 3/2/1999, after full trial in favour of the Respondent’s father after he took oath on the Holy Qur’an.
Thereafter, the Respondent’s father enjoyed peaceful possession of the property until 2012, when the Appellant’s father sought for extension of time before Upper Shari’a Court Dutse to appeal against the said judgment which was delivered 13 years back. That Court granted the application and heard the appeal No. USCA/DUT/JG/CV/36/2012 on the merit, but dismissed the appeal in its judgment delivered on 19th September, 2012 and affirmed
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the decision of the Auyo Shari’ah Court.
Further dissatisfied with the said judgment, the Appellant’s father appealed to the Shari’ah Court of Appeal, Jigawa State in appeal No. SCA/JG/CVA/43/2016, which Court eventually set aside the concurrent judgments of both the Auyo Shari’ah Court and Upper Shari’ah Court Dutse on the 13th October, 2016 and ordered a fresh re-trial of the case before Upper Shari’ah Court Kafin Hausa.
Dissatisfied with the said judgment, the Appellant filed the instant appeal based on a lone ground, from which the learned counsel for the Appellant A. G. Wakil, Esq equally formulated a single issue for determination, thus:
“Whether the Sharia Court of Appeal has Jurisdiction to entertain and determine the instant case which borders on dispute over trespass and ownership of a piece of farmland.”
The learned counsel for the Respondent A. Y. Umar, Esq., equally reformulated the issue in his couching style thus:
“Whether the respondent’s claim at the trial Court was for ownership and declaration of title to land to deprive the lower Court of jurisdiction.”
It was argued for the Appellant that of the instant appeal
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involves a claim of title to land and trespass, in respect of which the Court below lacks jurisdiction by virtue of Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See the case of Magaji Vs Dattijo (2007) All FWLR (Pt 365) 599 at 605 – 606 paras H – B and F – E, Asayayah Vs Asayayah (2014) 2 Pt. 1 SQLR 51 at 69 paras A – B.
It was submitted for the Appellant that the issue of Jurisdiction is a radical and crucial question regarding the Court’s competence to adjudicate. Where the Court lacks Jurisdiction, the proceedings no matter how well conducted and decided, will amount to nullity. See Yar’Adua Vs Yandoma (2015) All FWLR (pt 770) 1215 at 1242 paras D – F.
The Appellant’s counsel further argued that the issue of Jurisdiction can be raised at any time or at any stage in the course of proceedings by either part and even on appeal as in the instant case or suo motu by the Court. See Magaji Vs Dattijo; Asayayah Vs Asayayah and Madukolu Vs Nkemdillim (1962)1 All NIR 578, (1962)2 SCNLR 341.
It was further submitted, for the Appellant, that the lower Court is a Court of record created under the
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Constitution and conferred with jurisdiction under the provision of Section 277 (1) and (2) thereof, which does not in any way include matters relating to dispute on ownership, possession or declaration of title to land simpliciter devoid of question of Islamic law. The Appellant urged the Court to resolve the lone issue in favour of the Appellant, allow the appeal and set aside the judgment of the lower Court delivered on 13th October, 2016.
The Respondent’s counsel A. Y. Umar Esq, however, argued that the yardstick or parameter used in ascertaining or determining Court’s jurisdiction is by examination of the plaintiffs claim as presented before the trial Court. In other words, it is the claim of the plaintiff that will be examined in order to determine and ascertain whether or not the trial Court has jurisdiction in the case. See Muninga Vs. Muninga (1997) 11 NWLR (pt. 527) 1, and Musa Dade Vs. Gambo Na-Hauwa (2006) 3 S.L.R (pt. III) 26 at 40-41, per Adamu, J.C.A.
It was submitted for the Respondent that a careful consideration of the claim at the trial Court reveals that the Appellant has misconceived the issues involved in the instant case. It was
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argued that the claim of the Respondent at the trial Court was not for ownership and declaration of title to land but rather, it was rooted on trespass simpliciter and that does not deprive the lower Court of jurisdiction. In the alternative, the Court was urged to order hearing by a Court of competent jurisdiction. Reliance was placed on Section 15 of the Court of Appeal Act 2010 (As Amended), which provides thus:
“The Court of Appeal … shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and …, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction order the case to be re-heard by a Court or competent jurisdiction.”
See the pronouncements of this Court in the cases of Alhaji Yahaya Salema & Anor Vs. Alhaji Mamman & Anor (2006) 3 S.L.R (pt. 1) 203, (C.A. Kaduna Division), Musa Dade Vs. Gambo Na-Hauwa (2006) 3 S.L.R. (pt. III) 26 (C.A. Kaduna Division), and Buba Magaji’s case (C.A. Sokoto Division), where the Court, after finding that the respective Sharia Courts of Appeal lacked the requisite
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jurisdiction to entertain the appeal, ordered that the respective appeals be remitted to the respective Chief Judges for rehearing by the Appellate Division of the High Court. The Court was urged to resolve the sole issue in favour of the Respondent against the Appellant and dismiss the appeal.
The jurisdiction of the Court below is clearly defined by Section 277 of the Constitution, which provides thus:
(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 Sub-section (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
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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.
It is an elementary principle of the law that jurisdiction of a Court of law is determined by the plaintiff’s claim as endorsed on the writ of summons and the statement of claim. See Osoh V. Unity Bank Plc (2013) 53 (Pt. 11) Pg. 27. @285. In Musa Dade V. Gambo Na-Hauwa (2006) 3 S.L.R. (Pt. 3) Pg. 26 @ 33, this
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Court per Daihatu Adamu, JCA (of blessed memory) held thus:-
“It is now well settled that the yardstick; or parameter used in ascertaining or determining the Courts jurisdiction (whether trial or appellate Court) is by examination of the plaintiff’s claim as presented before the trial Court. In other words, it is the claim of the plaintiff that will be examined in order to determine and ascertain whether or not the trial Court (and a fortiori an appellate Court) has jurisdiction to decide the case or to hear an appeal as the case may be.”
The dispute, in the instant case, is clearly predicated on trespass to land, which in turn is based on ownership or right of possession of the land in question devoid of any application of Islamic Law principles. The wordings of the foregoing provision of the Constitution clearly spells out the jurisdiction of Sharia Courts of Appeal regarding disputes predicated upon claim of title to land simplicita. It is obvious that the Court below (the Jigawa State Shari’a Court of Appeal) lacks jurisdiction to hear and determine the appeal.
The provision of the Constitution, as quoted above is sacrosanct and cannot
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be circumvented. See the cases of Magaji V. Matari (2000) 8 N.W.L.R. (Pt. 670) Page 722 also reported in (2000) F.W.L.R. (Pt. 18) 237 at 248, and Alhaji Yahaya Salema Rajiya Dije V. Alhaji Mamman & Anor (2006) 3 S.LR. (Pt. 203). In the case of Maishanu V. Manu (2007) NWLR (Pt. 1032) page 42, 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 (contraction) to the section, the jurisdiction of the Court is confined and limited to all questions of what is termed as Islamic personal law which is Islamic status, regarding the matters prescribed in Subsection 2 (a) – (e) of Section 277 of the Constitution. These subsections relate 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 Shari’a Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic personal law.”
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The subject matter of the claim that culminates into the instant appeal is a direct poser on the right of the Respondent as plaintiff in the trial Court to exclude trespassers from the land in question predicated on title to land or claim of right of possession, which certainly falls outside the scope of Section 277 of the Constitution.
In the circumstances, the whole proceedings and of course the judgment of the Court below amount to nullity. The virus reduces the entire exercise void ab initio and reduced to non-starter. I have no hesitation in resolving the lone issue of jurisdiction in favour of the appellant. The appeal is meritorious and succeeds accordingly. It is hereby allowed.
The null proceedings and judgment of the Jigawa State Sharia Court of Appeal delivered on the 13th day of October, 2016, in Appeal No. SCA/JG/CVA/43/2016 are hereby struck out. The appeal from the judgment of the Upper Sharia Court Dutse in appeal No. USCA/DUT/JG/CV/36/2012 delivered on 19th September, 2012 is hereby referred to the Appeal section of the High Court of Jigawa State for the Chief Judge of Jigawa State to assign a panel to hear and determine same forthwith.
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The Appellant having awkwardly challenged his only success in the Court below wherein he dragged the Respondent into a futile activity shall pay costs to the Respondent assessed at One Hundred Thousand Naira Only (N100,000. 00).
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Hussein Mukhtar, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
The issue involved in this appeal is the jurisdiction of the Sharia Court of Appeal to hear and determine matters bordering on trespass to land simpliciter and which is predicated on the right possession or ownership of land. Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of
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Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this – Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.
The jurisdiction of the Sharia Court of Appeal is donated by Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). A read through the provisions of the Section shows that the Sharia Court of Appeal is a Court of
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enumerated jurisdiction, and not one of general jurisdiction, and as such for the Sharia Court of Appeal to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction. The provisions of Section 277 of Constitution has been severally interpreted by the appellate Courts and the consensus is that the Sharia Court of Appeal has no jurisdiction to determine any issue involving ownership of land or possession of a piece of land and/or trespass to land; its jurisdiction is limited to determining the issue of succession to land of a deceased Muslim – Abuja Vs Bizi (1989) 5 NWLR (Pt 119) 120, Garba Vs Dogon Yaro (1991) 1 NWLR (Pt 165) 102, Tumfafi Vs Meresno (1993) 1 NWLR (Pt 269) 378, Korau Vs Korau (1998) 4 NWLR (Pt 545) 212, Baka-Jiji Vs Abare (1999) 1 NWLR (Pt 586) 243, Magaji Vs Matari (2000) 8 NWLR (Pt 670) 722, Moriki Vs Adamu (2001) 15 NWLR (Pt 737) 666, Boyi Vs Hassan (2001) 18 NWLR (Pt 744) 41, Maishanu Vs Manu (2007) 7 NWLR (Pt 1032) 42, Faransi Vs Noma (2007) 9 NWLR (Pt 1041) 202, Kanawa Vs Maikaset (2007) 10 NWLR (Pt 1042) 283 and Mawo Vs Tsintuwa (2020) 2 NWLR (Pt 1708) 306. The matter taken
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before the lower Court was thus outside the areas of its enumerated jurisdiction and it had no vires to hear and determine same. The entire proceedings conducted before it and the Judgment rendered thereupon are thus nullities.
It is for this reason and the fuller exposition of the law in the lead judgment that I agree that there is merit in the appeal and I too allow same. It is settled law that where a proceeding is null ab initio, like the one conducted before the lower Court in this appeal, there is nothing to set aside as there is nothing legally binding in it –VAB Petroleum Inc Vs Momah (2013) 14 NWLR (Pt 1374) 284 and Stanbic IBTC Bank Plc Vs Longterm Global Capital Ltd (2020) 2 NWLR (Pt 1707) 1. I thus endorse the order in the lead judgment striking out the entire proceedings conducted before the Sharia Court of Appeal of Jigawa State in Appeal No SCA/CVA/JG/43/2016 as well the judgment delivered thereon on the 13th of October, 2016. I abide by the other consequential orders contained in the lead judgment.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HUSSEIN
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MUKTAR, JCA, I am in complete agreement with his reasoning and conclusion that the lower Court has no jurisdiction to entertain the appeal. The appeal is therefore meritorious and it ought to be and is accordingly allowed by me. I abide by all other consequential orders as contained in the leading judgment.
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Appearances:
G. Wakil, Esq With Yusufu Salisu, Esq. For Appellant(s)
Y. Umar, Esq. For Respondent(s)
