IYA LAMIDO HADEJIA V. MODIBBO YAHYA IBRAHIM JUBAWO(2002)

IYA LAMIDO HADEJIA V. MODIBBO YAHYA IBRAHIM JUBAWO

(2002)LCN/1271(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of July, 2002

CA/J/195/S/98

 

JUSTICES

  1. ABDULLAHI Justice of The Court of Appeal of Nigeria

I.T. MUHAMMAD   Justice of The Court of Appeal of Nigeria

I.A. MANGAJI   Justice of The Court of Appeal of Nigeria

Between

 

IYA LAMIDO HADEJIA Appellant(s)

AND

MODIBBO YAHYA IBRAHIM JUBAWO Respondent(s)

  1. T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The Adamawa State Sharia Court of Appeal, Yola ordered for the retrial of the suit by the Upper Area Court holden at Gurin (trial court). The Appellant was the Plaintiff and the Respondent was the Defendant. The claim of the Plaintiff was for the recovery of farmland situated at Jubawo which the Defendant had been farming and loaning to some people some portion of the said farmland without Plaintiff’s consent. In his response, the Defendant replied:
    “ANSWER: I have heard what the plaintiffs have said but it is not true. The piece of land the plaintiff claimed to be his is not his but mine.”
    The Plaintiff called (13) witnesses. The Defendant called (5) witnesses, Six witnesses were subpoenaed by the trial court. The trial court asked the Defendant to swear that the farmland belonged to him. The Plaintiff objected to the Oath taking by the Defendant. After evaluation of the evidence placed before him, the trial court Judge confirmed ownership of the farmland in dispute to the Defendant. Dissatisfied, the Plaintiff appealed to the Upper Area Court No.1, Yola (UAC). The Upper Area Court, after reviewing the case, set aside the decision of the trial court and reverted ownership of the land to the Plaintiff/Appellant. The Defendant/Respondent was dissatisfied and he appealed to the Sharia Court of Appeal, Yola (Lower Court). After reviewing the proceedings of the trial and the Upper Area Courts, the Lower Court found that the Defendant/Respondent had more credible witness. The Lower Court invited the Respondent to subscribe to an Oath that the subject matter was his own and as he never parted with the subject matter. He swore, and the Lower Court set aside the Judgment of the Upper Area Court (UAC). It confirmed the farmland in dispute to him.
    Dissatisfied further, the Plaintiff/Appellant appealed to this court.

    The parties filed and exchanged briefs of argument. Learned counsel for the Appellant formulated the following issues:
    “1. Whether the Sharia Court of Appeal, (Yola) had jurisdiction to hear and determine the Appeal relating to ownership/title to land.
    2. Whether the Sharia Court of Appeal, Yola was right when it relied and affirmed the unevaluated decision of the Trial Area Court, Gurin.
    3. Whether there is any provision in the Area Courts (Civil Procedure) Rules 1970 of Gongola State, applicable in Adamawa State which allows the Court Suo motu to call witnesses in a case pending before it.
    4. Whether the Sharia Court of Appeal, Yola being an appellate court was right to have administered the complimentary oath to the Respondent.
    5. Whether there was evidence at the trial on which the Sharia Court of Appeal relied upon and gave ownership of the land to the Respondent.
    6. Whether from the grounds of appeal and the arguments before the Sharia Court of Appeal, a retrial would not have been the best remedy.”
    Learned counsel for the Respondent formulated only one issue
    “Whether the Sharia Court of Appeal of Adamawa State had no jurisdiction to entertain the appeal filed by the Respondent before it.”
    On the hearing date each of the learned counsel adopted and relied on his brief. As is clear from the above, issue one of the Appellant’s issues and the sole issue formulated by the Respondent’s counsel are on jurisdiction of the Lower court. It is neater to settle this issue inlimine. See: A-G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (pt. 111) 552.
    In his submissions in the brief, learned counsel for the Appellant argued that as a court of record, the Lower Court is bound to exercise its jurisdiction within the ambit of the statute that governs it, that is Section 242 (1) and (2) (a) (b) (c) (d) and (e) of the 1979 Constitution as amended. He cited and relied on OLOWUV. ABOLORE (1993) 6 SCNJ, 2. He submitted further that the claim before the trial court does not come under any heading of the provisions of Section 242 (a) – (e) and neither party requested the trial court to conduct trial under Islamic Law.

    Jurisdiction of court is determined by the claim of the Plaintiff at the trial court. Learned counsel made citations of several cases such as TUMFAFI V. MERESNO (1993) 1 NWLR (Pt.269) 378.
    Learned counsel for the Respondent concedes in his brief that the Lower Court lacked jurisdiction to entertain the respondent’s Appeal, the dispute being that of land which did not involve any Islamic Personal Law.
    Let me say that the concession to lack of jurisdiction of the Lower Court by learned counsel for the Respondent makes the determination of this appeal a lot easier for me. The jurisdiction of the Lower court has been limited to Islamic Personal Law Matters. Section 242 (2) of the Constitution of the Federation (now contained in Section 277 (2) of the 1999
    “(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 Moslems, 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 person law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Moslem:
    (d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Moslem or the maintenance or guardianship of a Moslem who is physically or mentally infirm; or
    (e) where all the parties to the proceedings (whether or not they are Moslems) 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.”
    Thus, where a claim by the Plaintiff is rested on ownership and or title to land, then the jurisdiction of the Lower Court is ousted. See: ABUJA V. BIZI (1989) 5 NWLR (Pt.119) 120. There is nothing to connect the subject matter in dispute with succession as contemplated by paragraph (c) of the above subsection.

    The nature of the claim as is clear from the record was land recovery. It is trite law that it is the nature of the Plaintiff’s claim at the trial Court that determines whether the appeal Court has jurisdiction on the Subject matter. See: BABA V. BABA (1991) 9 NWLR (Pt.214) 248; TUKUR V. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 557.

    Where a Court determines an issue without jurisdiction, that determination is void and the decision is subject to being set aside as it is a nullity – ABUJA V. BIZI (Supra).This determines this appeal. There is no need to consider the remaining issues.
    Accordingly, the appeal must, and is hereby, allowed. I declare the decision of the Lower Court to be a nullity as the Lower Court had no jurisdiction to deal with landed matters simpliciter. The decision is set aside. I remit the case to the Hon. Chief Judge of Adamawa State to hear the matter on appeal. I order each party to bear own costs in this appeal.

    UMARU ABDULLAHI, P.C.A.: I read before now the judgment delivered by my learned brother Muhammad, J.C.A, I entirely agree with the reasons given in the lead judgment that the Sharia Court of Appeal, Adamawa State has no jurisdiction to determine the appeal, having regard to the nature of the claim that is ownership of title to land see BABA V. BABA (1991) 9 NWLR (Pt. 214) 248.
    It is also my judgment that the appeal is allowed. The judgment of the Sharia Court of Appeal, Adamawa State is accordingly declared a nullity and set aside, I abide by the consequential orders made in the lead judgment.

    ISA ABUBAKAR MANGAJI, J.C.A.: I agree.

 

Appearances

E.O. ODO ESQUIREFor Appellant

 

AND

M.Y. NUHU ESQUIREFor Respondent

 

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