KAMBAZA v. KAMBAZA (2022)

KAMBAZA v. KAMBAZA

(2022)LCN/16980CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Wednesday, March 16, 2022

CA/S/121S/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

UMARU DAN ABINCI KAMBAZA APPELANT(S)

And

DIKKO BAGUDU KAMBAZA RESPONDENT(S)

RATIO

WHETHER OR NOT THE SHARIA COURT CAN EXERCISE JURISDICTION OVER MATTER RELATING TO ISLAMIC PERSONAL LAW

That provision is clear enough. The Sharia Court of Appeal is constitutionally approved to exercise jurisdiction over matters with respect to “Islamic Personal Law” only hence the jurisdiction of that Court is circumscribed or restricted to matters itemized at Section 277 (2) of the constitution i.e. matters relating to marriage and dissolution of marriage, guardianship, wakf, gifts, Will or succession or inheritance e.t.c. See Maishanu v. Manu (2009) NWLR (1032) 42, Magaji vs. Matari (2000) 8 NWLR (pt. 670) 722 or (2000) FWLR (pt. 18) 237, 248. The Sharia Court of Appeal has no jurisdiction to hear and determine matters relating to title or ownership of land See:Alhaji Yahaya Salema and Hajiya Dije vs. Alhaji Manman (2006); 3 SCR (pt. 203); Munina v. Muninga (1997) 11 NWLR (pt. 526) 591; Usman vs. Kareem (1995) 2 NWLR (pt. 379) 537. The Court when confronted with such questions should decline jurisdiction. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal in the main, raises the question of the capacity of the Sharia Court of Appeal sitting in Argungu on the 16th July, 2020 to sit and take the decision as it did vide the judgment delivered on the said date.

Against that judgment, the appellant has appealed to this Court on four (4) grounds vide the Amended Notice of Appeal filed on the 14th July, 2021. Ground 3 of the Amended Notice and Ground of Appeal state thus: –
“The Court below (Sharia Court of Appeal, Kebbi State) erred in law when it entertained an appeal on an issue which it lacked jurisdiction.
Particulars
(a) Whereas by the provision of Section 277(1) and (2) (sic) Constitution of the Federal Republic of Nigeria 1999, the jurisdiction of the Shariah Court of Appeal of a State is restricted to matters on Islamic Personal law only.
(b) Whereas the matters before the Court below (Sharia Court of Appeal Kebbi State) did not relate to Islamic Personal Law but simply relates to the issue of title or ownership of a portion of farmland in dispute.”

Parties on both sides filed and exchanged their respective briefs of argument and addressed this point (issue) upon the Record of Appeal being transmitted to this Court on the 26th October, 2020.

Appellant’s Amended Brief of Argument dated and filed on the 14th July, 2021 was deemed as properly filed on the 21st October, 2021 by which the appellant in addressing Issue No. 1, reasoned that by dint of Section 277(2) of the Constitution of Federal Republic of Nigeria 1999, (as amended) the Sharia Court of Appeal, lacked jurisdiction to entertain matters having to do with ownership of land. He argued that the dispute between the Appellant and Respondent was over the ownership and use of a farmland. In response to the Amended Appellant’s Brief Argument the Respondent filed his Brief of Argument on the 19th November, 2021 by which it is argued per-contra on the issue of Jurisdiction, that the Sharia Court of Appeal can entertain the matter as it did so far as it is an appeal brought to it in relation to inheritance of the property (farmland) in dispute.

There is the need at this juncture, to revert to the record of appeal so as to ascertain in particular, what the claim was, before the Upper Sharia Court, Gwandu.

At page 1 of the Record of Appeal, the appellant stated his claim thus: –
“I, Umaru is suing this person called Dikko Bagudu, over the issue of the farm which I inherited from my father called Shehu Jika Kambaza. The farm is at Babagi. I want the Court to recover the farm for me from him. That we have been farming in this farm for many years, but last year he went and put manure/fertilizer in the farm. I invited him before the village head so that he will leave the farm. But he said that he will not leave the farm, that it is grazing area. I sued him before a Court and we even went to the Court at Birnin Kebbi where we were sent to this Court.”

In response to the statement of claim the Respondent (Defendant) stated at pages 1-2 of the record thus: –
“I heard, but it is not true, because the farm is our cattle settlement area since from our grandparents descending to me. From the time I grew-up I have never seen his father work in the farm and his father died 40 years ago.”

It is clear to me that the parties herein at the trial Court joined issues over the ownership and use of the farmland, the subject matter in dispute. Even when the case went to the Sharia Court of Appeal, it did not change the nature and character of the claim at the trial Court.

Now, what is the Sharia Court of Appeal expected to do when confronted with an appeal such as this, emanating from the decision of the Upper Shariah Court in which title or ownership of land is an issue given the provisions of Section 277(1) and (2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended)? That is the question. Section 277(1) and (2) of the Constitution provides thus: –
“277 (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 marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding 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.
That provision is clear enough. The Sharia Court of Appeal is constitutionally approved to exercise jurisdiction over matters with respect to “Islamic Personal Law” only hence the jurisdiction of that Court is circumscribed or restricted to matters itemized at Section 277 (2) of the constitution i.e. matters relating to marriage and dissolution of marriage, guardianship, wakf, gifts, Will or succession or inheritance e.t.c. See Maishanu v. Manu (2009) NWLR (1032) 42, Magaji vs. Matari (2000) 8 NWLR (pt. 670) 722 or (2000) FWLR (pt. 18) 237, 248. The Sharia Court of Appeal has no jurisdiction to hear and determine matters relating to title or ownership of land See: Alhaji Yahaya Salema and Hajiya Dije vs. Alhaji Manman (2006); 3 SCR (pt. 203); Munina v. Muninga (1997) 11 NWLR (pt. 526) 591; Usman vs. Kareem (1995) 2 NWLR (pt. 379) 537. The Court when confronted with such questions should decline jurisdiction.
The mere mention being made by the appellant in his statement of claim at the trial Upper Sharia Court that he had INHERITED the land in dispute from his father, did not bring this case within the jurisdiction of the Sharia Court of Appeal, given the facts in this case on appeal.
I am one with the submissions being vide by the learned appellant’s counsel in his brief on issue No. 1, that the Court below, indeed lack jurisdiction to hear and determine matters or issue of title or ownership of the land in dispute, hence issue No. 1 is resolved in favour of the Appellant.

Having thus come to that conclusion on such a fundamental question, the issues, addressed by learned counsel on both sides, on the merits of the case become superfluous and I discountenance same.
The appeal in effect has considerable merit. It succeeds and same is allowed.
The judgment of the Kebbi State Sharia Court of Appeal delivered on 16th July, 2020 in case No. SCA/KBS/GWD/49/2019 is set aside.
That is the judgment and order.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in advance the lead judgment delivered by my learned brother S. T. Hussaini, JCA. I fully agree with his reasonings and conclusions. I adopt them as mine to also allow this appeal and set aside the judgment of the Court below.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini JCA. I agree with the reasoning and conclusion that the appeal succeeds and same is allowed. I abide by all the consequential orders in the lead judgment.