IBRAHIM v. ALIYU
(2022)LCN/16820(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, March 11, 2022
CA/K/40/S/2006
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
HUDU IBRAHIM APPELANT(S)
And
YUSHAU ALIYU RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
It is settled law that jurisdiction is the nerve center of adjudication, it is the blood that gives life to the survival of an action in a Court of law, in the same way blood gives life to the human being and the animal race. See Ibadan South East & 17 Ors v. Hon Adeolu Adeleke & 3 Ors.(2007) 1 SCNJ; Hon. Micheal Dapianlong & 5 Ors v. Chief (Dr.) Joshua Chibi Dariye (2007) 4 SCNJ 286. Jurisdiction is a very fundamental issue that robs on the competence of a Court to hear and decide a matter. The jurisdiction of the Court is derived from the constitutional provisions that established the Court and other statutes. SeeForestry Research Institute of Nigeria v. Mr. I. A. Enaifoghe Gold (2007) 5 SCNJ 302; Bashir M. Dalhatu v. Ibrahim S. Turaki (2003) 10 SCM 153; Ports and Cargo Handlings Services Company Ltd & 3 Ors. v. Migfo Nigeria Ltd & Anor (2012) SC (Pt. 111) 1. PER TALBA, J.C.A.
WHETHER OR NOT IT IS THE PLAINTIFF’S CLAIM THAT DETERMINES THE JURISDICTION OF THE COURT
However, it is the plaintiff or claimant’s claim that determine and vest jurisdiction in the Court. In other words, whatever is brought before the trial Court by the plaintiff or claimant alone for determination will determine whether or not a trial Court is competent to entertain or adjudicate on the matter. The Court should not examine the defence at all. See the case of National Union of Road Transport Workers & Anor v. Road Transport Employers Association of Nigeria & 5 Ors. (2012) 1 SC (Pt. 11) 119; Sunday Gbagbarigha v. Adikumo Toruemi & Anor (2012) 12 (Pt. v) 54. PER TALBA, J.C.A.
WHETHER OR NOT THE JURISDICTION OF THE SHARIA COURT IS LIMITED TO ISLAMIC PERSONAL LAW
Indeed it is settled law in a plethora judicial authorities by this penultimate Court and the Apex Court that the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law. See the case of Zaki & 4 Ors. v. Musa (2015) 3 SQLR (Pt. 1) 1 where Oredola JCA held thus;
“Permit me my lords, to quote the pronouncements made by Uthman Mohammed, JCA (as he then was) in Alhaji Hassan Abuja v. Lawan Gani Bizi (1989) 5 NWLR (Pt. 119) 120/125. He stated thus:
“May I explain before going deeper into this judgment that this Court had made several decisions in the past, in respect of appeals coming here, the subject matter of which was a dispute between respective parties, in those cases and which were not within the definition of Islamic Personal Law, as outlined in S. 242 of the 1979 Constitution. We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal law, regardless of the fact that the parties signed Form AC9 or not one of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 NCLR 260 at 267…”
… It is instructive and significant to note that Section 223(1) and 242(2)(e) of the 1979 Constitution referred to, reproduced and constructed in the above cited decisions of this Court are in pari material with Sections 244(1) and 277(2)(e) of the 1999 Constitution (as amended). To my mind, the claim in the instant appeal does not fall with the ambit of questions of Islamic Personal Law, as defined or listed under Section 277(2) of the 1999 Constitution (supra).
It is not trite, that before a dispute could become a question of succession or inheritance in order to confer jurisdiction on Sharia Courts, such a dispute must make succession or inheritance a focal point and truly live issue.”
See also Kanawa v. Maikaset (Supra) Alkali v. Alkali (supra); Magaji v. Matari (supra) and Korau v. Korau (supra). PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the Sharia Court of Appeal Kaduna State, delivered on 21st December, 1994 in Suit No: KDH/SCA/ZA/57/95.
The appellant instituted a suit before the Area Court No. 1, Zaria City, seeking the Court to set aside a sale of their family land to the respondent by their co-heir Mallam Sani Ibrahim, without their consent. After hearing the learned trial judge entered judgment in favour of the respondent see page 28 of the printed record. Being dissatisfied with the judgment the appellant appealed to the Upper Area Court No. 1 Zaria. The Upper Area Court set aside the judgment of the trial Court. See pages 33-34 of the printed record. Equally, being aggrieved by the judgment, the respondent appealed to the Sharia Court of Appeal (herein referred to as the lower Court). The lower Court set aside the judgment of the Upper Area Court and affirmed the judgment of the trial Court, Area Court No. 1 Zaria City. See page 42 of the records.
Being aggrieved with the judgment of the lower Court, the appellant appealed to this Court vide a notice of appeal dated the 27th February, 1995. The Notice of appeal contained one ground of appeal as contained at page 43 of the record. Pursuant to the order granted by this Court on 29th of June, 2006, the appellant filed two amended grounds of appeal, dated 30th/6/2006.
From the two grounds of appeal, the appellant distilled two issues for determination thus;
“1. Whether or not the Court below was right when it assumed jurisdiction over the Respondent’s appeal on a matter relating to contract of sale of land.
2. Whether the Court below was right when it affirmed the decision of the Area Court of Zaria city confirming sale of the disputed land to the respondent by a heir before distribution and without the consent and permission of the co-heirs.”
The Respondent however submitted a sole issue for determination, thus;
“Whether the Court below was right in assuming jurisdiction and affirmed the decision of the trial Court.”
I adopt the two issues submitted by the appellant. It should be noted that issue one submitted by the appellant and the sole issue submitted by the respondent are the same, having to do with the competence of the lower Court to entertain the appeal in view of the subject matter.
The appellant’s counsel submitted that the law is settled in plethora of judicial authorities by this Court and the Apex Court that “where the subject matter and the claim of the claimant at the trial Court is simply and purely a matter of declaration of title to land or sale of landed property quite unconnected with Islamic personal law matters as contained in Section 277(1) and (2) of the 1999 Constitution, the Sharia Court of Appeal will not have jurisdiction to entertain any appeal emanating therefrom”. Learned counsel cited the following cases Kanawa v. Maikaset (2007) 10 NWLR (Pt. 1042) 283; Alkali v. Alkali (2002) 1 NWLR (Pt. 748) 453; Magaji v. Matari (2000) 5 SC 46 and Korau v. Korau (1998) 4 NWLR (Pt. 545) 212. Learned counsel submitted that the lower Court is limited to issues relating to Islamic Personal Law namely: Marriage, divorce, inheritance, Waqf, gift, will or succession, custody and guardianship of children. It does not include issues relating to sale or transaction affecting land or landed property. Learned counsel submitted further that the claim of the appellant before Area Court 1 Zaria City is in respect of inherited farmland which was sold to the Respondent by a co-heir without their consent and which sale they seek to set aside. He submitted that it is outside the jurisdiction of the lower Court.
The respondent’s counsel contended that the respondent while answering enquiry from the trial judge stated that the subject matter of dispute was a gift given to Sani Ibrahim and Tukur by their father. The trial Court directed that the burden of proof is on the respondent and adjourned the matter to hear the respondent’s witnesses. After hearing the witnesses, the trial judge came to the conclusion that the subject matter was a gift to Sani Ibrahim and therefore it is not a family property. Learned counsel submitted further that the sale of the land to the respondent was never denied nor in doubt. The issue was whether the subject matter was gifted to Sani Ibrahim by his father. The trial Court came to the conclusion that the land was a gift to Sani Ibrahim which he sold to the respondent. The lower Court is empowered by the extant law to assume jurisdiction over Islamic personal law matters which includes but not limited to gifts.
It is settled law that jurisdiction is the nerve center of adjudication, it is the blood that gives life to the survival of an action in a Court of law, in the same way blood gives life to the human being and the animal race. See Ibadan South East & 17 Ors v. Hon Adeolu Adeleke & 3 Ors.(2007) 1 SCNJ; Hon. Micheal Dapianlong & 5 Ors v. Chief (Dr.) Joshua Chibi Dariye (2007) 4 SCNJ 286. Jurisdiction is a very fundamental issue that robs on the competence of a Court to hear and decide a matter. The jurisdiction of the Court is derived from the constitutional provisions that established the Court and other statutes. See Forestry Research Institute of Nigeria v. Mr. I. A. Enaifoghe Gold (2007) 5 SCNJ 302; Bashir M. Dalhatu v. Ibrahim S. Turaki (2003) 10 SCM 153; Ports and Cargo Handlings Services Company Ltd & 3 Ors. v. Migfo Nigeria Ltd & Anor (2012) SC (Pt. 111) 1.
However, it is the plaintiff or claimant’s claim that determine and vest jurisdiction in the Court. In other words, whatever is brought before the trial Court by the plaintiff or claimant alone for determination will determine whether or not a trial Court is competent to entertain or adjudicate on the matter. The Court should not examine the defence at all. See the case of National Union of Road Transport Workers & Anor v. Road Transport Employers Association of Nigeria & 5 Ors. (2012) 1 SC (Pt. 11) 119; Sunday Gbagbarigha v. Adikumo Toruemi & Anor (2012) 12 (Pt. v) 54.
The statement of claim at the trial Court is thus:
“Idris Ibrahim said am making a claim against Sani Ibrahim because he took our inherited farmland and sold it to Yusha’u Aliyu but Dan san Kanawa had sold it to Baba and I don’t know how many years from the time it was sold. I have been in the town together with the remaining heirs but no body is aware that he sold the inherited farmland. The disputed farmland is situate at Kurmin Bomo, that we the heirs are 20 in number including himself that the area he sold the farmland there are 12 males and 8 females and that her are the remaining heirs who asked me to represent them and sue Sani Ibrahim, we are going to inherit our father Ibrahim this is why we want the Court to recover for us our farmland.”
From the statement of claim stated above, it is crystal clear that the claim is for recovery of farmland simpliciter. The lower Courts are tempted to assume jurisdiction on a suit by mere mentioning of inheritance. In as much as a subject matter of litigation is part of inheritance which is within the jurisdiction of the lower Court as prescribed by Sections 244(1) and 277(1) &(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
However, the issue of inheritance must be the focal point. In other words it must be the main claim before the trial Court which calls for determination. If for example a plaintiff or claimant institutes an action seeking for distribution of the estate of a deceased father. And in the process of trial one of the heirs makes a claim that the land was given to him by their late father as a gift. Then the onus lies on him to establish the fact that their late father gave him the land which he sold. In that case it is purely an issue of inheritance/gift which the lower Court is vested with jurisdiction. Indeed it is settled law in a plethora judicial authorities by this penultimate Court and the Apex Court that the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law. See the case of Zaki & 4 Ors. v. Musa (2015) 3 SQLR (Pt. 1) 1 where Oredola JCA held thus;
“Permit me my lords, to quote the pronouncements made by Uthman Mohammed, JCA (as he then was) in Alhaji Hassan Abuja v. Lawan Gani Bizi (1989) 5 NWLR (Pt. 119) 120/125. He stated thus:
“May I explain before going deeper into this judgment that this Court had made several decisions in the past, in respect of appeals coming here, the subject matter of which was a dispute between respective parties, in those cases and which were not within the definition of Islamic Personal Law, as outlined in S. 242 of the 1979 Constitution. We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal law, regardless of the fact that the parties signed Form AC9 or not one of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 NCLR 260 at 267…”
… It is instructive and significant to note that Section 223(1) and 242(2)(e) of the 1979 Constitution referred to, reproduced and constructed in the above cited decisions of this Court are in pari material with Sections 244(1) and 277(2)(e) of the 1999 Constitution (as amended). To my mind, the claim in the instant appeal does not fall with the ambit of questions of Islamic Personal Law, as defined or listed under Section 277(2) of the 1999 Constitution (supra).
It is not trite, that before a dispute could become a question of succession or inheritance in order to confer jurisdiction on Sharia Courts, such a dispute must make succession or inheritance a focal point and truly live issue.”
See also Kanawa v. Maikaset (Supra) Alkali v. Alkali (supra); Magaji v. Matari (supra) and Korau v. Korau (supra).
It is not in doubt that the claim before the trial Court is for recovery of a farmland which is outside the ambit of Sections 244(1) and 277(2) of the 1999 Constitution (supra). And therefore the lower Court lacked the jurisdiction to hear and determine appeal on the subject matter. To that extent the decision of the lower Court is rendered a nullity and it is liable to be set aside.
Accordingly, the judgment of the lower Court delivered on 21st December, 1994 in Suit No: KDH/SCA/ZA/57/95 is hereby set aside. Having decided on the issue of jurisdiction, it would amount to an academic exercise to proceed with the determination of the second issue which touches on the merit of the case. Therefore the second issue is hereby discountenanced.
Appeal is allowed. No order as to cost.
AHMAD OLANREWAJU BELGORE, J.C.A.: I had a review of the judgment just delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA and I agree with his reasoning and conclusion that the Sharia Court of Appeal of Kaduna State has no jurisdiction to entertain and determine this case which has nothing to do with Islamic Personal Law.
I allow the Appeal.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother A. M. TALBA JCA. I agree with the reasoning and conclusion that the appeal is allowed. I abide by the consequential order in the lead judgment.
Appearances:
Anas Lawal Yaro, Esq. For Appellant(s)
Mohd Sani Adamu, Esq. For Respondent(s)
