KIYAWA v. BAKO
(2022)LCN/17009(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/KN/149S/2020
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALH. DANLADI BUNIYA KANTI KIYAWA APPELANT(S)
And
HAJ. BILKISU ALH. BAKO RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CAN RAISE A FRESH ISSUEOF EITHER LAW OR FACT ON APPEAL
The general proposition of the law is that a party can only raise a fresh issue of either law or fact on appeal where such party has sought for and obtained leave of this Court to raise the new point. In BAMGBOYE VS UNILORIN & ANOR (1999) LPELR 737 AT 31-32; Onu, JSC held that:
“Any issue that does not arise from the pleadings in the Court below cannot be raised in any of the grounds of appeal and argued without leave of the Court below as decided in a host of cases in support of that proposition”.
Furthermore, in EZEKWESILI VS ONWUAGBU (1998) 3 NWLR (Pt 541) 217 AT 238; Tobi JCA (as he then was) held that:
“Parties do not have the freedom of the air to make a fresh case on appeal. They are bound by the case already made at the trial Court and present same on appeal as there will be no end to litigation if parties are allowed to raise fresh issue on appeal at will”.
See KUBOR & ANOR VS DICKSON & ORS (2012) LPELR 15364; OHOCHUKWU VS AG RIVERS STATE & ORS (2012) LPELR 7849 and ONEMU & ORS VS COMM. FOR AGRIC & NAT. RESOURCES, ASABA & ORS (SUPRA). PER LAMIDO, J.CA.
EXCEPTION TO THE RULE ON WHETHER OR NOT A PARTY CAN RAISE A FRESH ISSUEOF EITHER LAW OR FACT ON APPEAL
The exception to the golden rule of raising a fresh issue on appeal without leave is dependent on whether the issue relates to a point of law simpliciter or relates to the jurisdiction of the Court. Where it is the latter, a different consideration applies. The law allows the raising of an issue of jurisdiction even for the first time on appeal with or without obtaining leave of the Court. The reason stems from the fact that the issue of jurisdiction is fundamental and goes to the root of the entire adjudication. Where the Court lacks jurisdiction, any step taken in the proceedings including the judgment, no matter the erudition exhibited would be an exercise in futility for the proceedings are a nullity and liable to be set aside. It is for this reason the law allows raising the issue of jurisdiction even for the first time on appeal even without seeking for leave to raise same. See GAJI VS PAYE (2003) SC 53; COMPAGNIE GENERAL DE GEOPHYSIQUE (NIGIT) NIG LTD VS AMINU (2015) LPELR 24463; AG KWARA STATE VS ADEYEMO & ORS (2016) LPELR 41147 and MOHAMMED VS FRN (2018) LPELR 43908. PER LAMIDO, J.CA.
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AND RESOLVED SUO MOTU BY THE COURT
I have earlier on reproduced the grounds of appeal formulated in the Appellant’s notice of appeal. Undoubtedly, Ground 1 complains of the power of the Court below to hear and determine the appeal being outside the ambit of Islamic Personal Law. That issue was neither raised at the Court below, nor was leave sought for and obtained by the Appellant before raising the point. However, since it borders on the jurisdiction of the Court below to hear and determine the appeal, the ground of appeal is properly raised even without seeking for leave. The issue of jurisdiction, I dare say, can be raised and resolved by this Court suo motu. See TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 1213) 106; OMOKUWAJO VS FRN (2013) 9 NWLR (PT 1359) 300 and ONI VS FAYEMI & ORS (2019) LPELR 49299. Ground 1 in the Appellant’s notice of appeal is competent and valid and as such the preliminary objection on that score is dismissed. PER LAMIDO, J.CA.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the authority which the Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment; it is a legal right by which judges exercise their authority. See MOBIL PRODUCING (NIG) LTD VS LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (2002) 114 SCM 167 and MUSACONI LTD VS ASPINALL (2013) 14 NWLR (PT 1375) 435.
The issue of jurisdiction is so radical and crucial aspect of the competence of a Court for where a Court lacks jurisdiction to hear and determine a matter, the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but rather extrinsic to adjudication. See SULE VS NIGERIAN COTTON BOARD (1992) 2 NWLR (PT 45) 17; SHITTA–BEY VS AG FEDERATION & ANOR (1998) LPELR 3058 and AG KWARA STATE & ANOR VS ADEYEMO & ORS (SUPRA). PER LAMIDO, J.CA.
ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Sharia Court of Appeal, Dutse, Jigawa State delivered on 18th February, 2020. The plaintiff/Respondent instituted an action at Upper Sharia Court, Kiyawa seeking for a declaration of title to a plot of land. At the end of the hearing, the trial Court dismissed the plaintiff/Respondent’s claim in its entirety.
Aggrieved by the dismissal of the action, the plaintiff/ Respondent appealed to the Sharia Court of Appeal, Dutse, Jigawa State herein referred to as Court below. The Court below allow the appeal and made some consequential orders. The Court below ordered the valuation of the plot of land and the building erected and further ordered the plot owner to pay the cost of the building and if she elects not to redeem the plot, the owner of the building is to pay the value of the plot.
The Defendant/Appellant was dissatisfied with the decision of the Court below and filed an appeal to this Court on 6th March, 2020. The notice of appeal contains three grounds of appeal couched in the following way:-
GROUND 1
The learned Kadis of the lower Court erred in law in hearing and determining of the appeal without jurisdiction.
GROUND 2
The learned Kadis of the lower Court erred in law in holding that the trial Court did not understand the nature of claim and parties before it.
GROUND 3
The learned Kadis of the lower Court erred in law in holding that the sale of land transaction between the parties is void.
The Appellant’s brief of argument was filed on 28/09/2020 but deemed filed on 06/07/2021 and a reply brief on 21/02/2022. The Appellant formulated a solitary issue for determination which is:-
Whether the Court below (Sharia Court of Appeal, Dutse) has jurisdiction to hear and determine the appeal on title to land.
The Respondent’s brief of argument was filed on 16/09/2021 but deemed filed on 21/02/2022. The following issue for determination was formulated therein:-
Whether the lower Court was right in assuming jurisdiction to hear and determine the Respondent’s appeal.
The Respondent also filed and argued a preliminary objection challenging the competence of the appeal. The law is trite that where a preliminary objection is raised in an appeal, it becomes an impediment which the Court must first clear before going into the merits of the main appeal. Whenever a preliminary objection is properly raised attacking the competence of the ground(s) of appeal or the appeal itself, it should be considered and determined first by the appellate Court before going into the merits of the appeal. See NNB PLC VS. IMONIKE (2005) 5 NWLR (PT. 760) 294; NIGERIAN NAVY VS. GARRICK (2006) 4 NWLR (PT. 969) 69; OCHEDI VS. UBN PLC (2012) LPELR 8596 and APC VS. INEC & ANOR (2019) LPELR 49079.
The grounds upon which the said preliminary objection was raised are that:-
i. Ground 1 of the Appellant’s notice of appeal is a complaint on an issue of law which was not raised by the Appellant at the lower Court nor arose for determination. It is thus a fresh issue in respect of which the Appellant has not sought nor obtained the leave of this Honourable Court to raise same.
ii. Equally the complaint in Ground 1 of the Appellant’s notice of appeal never emanated from the ratio decidendi of the judgment of the lower Court and therefore Ground 1 is invalid, incompetent, null and void ab initio.
iii. Issue 1 formulated in the Appellant’s brief of argument from Grounds 1 and 2 respectively is incompetent as it is distilled from an incompetent Ground 1 and a competent Ground 2.
iv. No issue for determination was formulated in respect of Ground 3 same is deemed abandoned and liable to be struck out.
In arguing the preliminary objection, learned Counsel for the Respondent Ibrahim Aliyu Nassarawa, Esq. submitted that though Ground 1 complained of an issue of law not raised at the lower Court nor arose for determination, it is a fresh issue and the Appellant ought to seek and obtain leave of Court to raise same. This is so even if the new issue raised borders on jurisdiction. He referred to NNAKWE VS. THE STATE (2013) 18 NWLR (PT. 1385) 1; OUR LINE LTD. VS. SCC (NIG) LTD & ANOR (2009) 17 NWLR (PT. 1170) 382; OLALOMI INDUSTRIES LTD. VS. NIDB LTD (2009) 16 NWLR (PT. 1169) 266; SALISU VS. MOBOLAJI (2014) ALL FWLR (PT. 728) 938; EMENIKE VS. PDP (2012) 12 NWLR (PT. 1315) 556; ALAWIYE VS. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570 and JOY VS. DOM (1999) 9 NWLR (PT. 620) 538.
On his second ground of objection, he argued that the complaint in the ground never arose for adjudication before the Court below and it did not form part of the ratio of the Court below’s judgment and for a ground of appeal to retain its competence, it must arise from or relate to the decision appealed against. He referred to ABE VS. UNILORIN (2013) 16 NWLR (PT. 1379) 183; FJSC VS. THOMAS (2013) 17 NWLR (PT. 1384) 503 and JIM JAJA VS. COP (2013) 6 NWLR (PT. 1350) 225. The said ground under challenge has no bearing with the judgment of the Court below. It therefore goes to no issue as it is grossly incompetent. He referred to POPOOLA VS. BABATUNDE (2012) 7 NWLR (PT. 1299) 302.
On the third ground, he contended that once the Court holds that Ground 1 is incompetent, the issue formulated in respect of the said ground becomes incompetent as well. He referred to MACFOY VS. UAC (1962) 3 ALL ER 1169; SHELIM VS. GOBANG (2009) 37 WRN 32 and UME VS. MGBACHI (2014) ALL FWLR (PT. 726) 615. He finally stated that the Appellant did not formulate any issue for determination in respect of Ground 3 and it is therefore deemed abandoned.
In his reply brief, learned Counsel for the Appellant, A.H. Sule, Esq. submitted that though the law is trite that where a party wishes to raise a new point of law on appeal, he must seek for leave to do so, the issue of jurisdiction where raised is an exception to the general rule. He referred to GAJI VS. PAYE (2003) LPELR 1300; SAKATI VS. BAKO & ANOR. (2015) LPELR 42415; CGG NIG LTD. VS. AMINU (2015) LPELR 24463; In RE: YINDANG & ORS. (2021) LPELR 55149 and ABDULLAHI VS. DISU & ORS. (2019) LPELR 49021. He argued that authorities cited by the Respondent are distinguishable from the facts of this case and thus is not applicable.
He also argued that jurisdiction is the basis upon which the lower Court pronounces decisions. It is therefore part of the judgment of the Court whether arguments on jurisdiction are specifically canvassed before it or not. The Court below whose jurisdiction is being challenged is an Islamic Court who is not limited by the grounds of appeal in hearing and determining of an appeal. It had duty to consider whether it had jurisdiction or not. Raising such issue for the first time on appeal is not prejudicial to the Respondent. He referred to MUSA VS. YAHAYA (2018) LPELR 44527.
Upon a holistic consideration of the grounds of objection, it can be seen that the main complaint centers on Ground 1 relating to the jurisdiction of the Court below to hear and determine the appeal on a matter not related to Islamic Personal Law. The issue of jurisdiction was never raised at the Court below, the Appellant is raising it for the first time on appeal to this Court. The general proposition of the law is that a party can only raise a fresh issue of either law or fact on appeal where such party has sought for and obtained leave of this Court to raise the new point. In BAMGBOYE VS UNILORIN & ANOR (1999) LPELR 737 AT 31-32; Onu, JSC held that:
“Any issue that does not arise from the pleadings in the Court below cannot be raised in any of the grounds of appeal and argued without leave of the Court below as decided in a host of cases in support of that proposition”.
Furthermore, in EZEKWESILI VS ONWUAGBU (1998) 3 NWLR (Pt 541) 217 AT 238; Tobi JCA (as he then was) held that:
“Parties do not have the freedom of the air to make a fresh case on appeal. They are bound by the case already made at the trial Court and present same on appeal as there will be no end to litigation if parties are allowed to raise fresh issue on appeal at will”.
See KUBOR & ANOR VS DICKSON & ORS (2012) LPELR 15364; OHOCHUKWU VS AG RIVERS STATE & ORS (2012) LPELR 7849 and ONEMU & ORS VS COMM. FOR AGRIC & NAT. RESOURCES, ASABA & ORS (SUPRA).
The exception to the golden rule of raising a fresh issue on appeal without leave is dependent on whether the issue relates to a point of law simpliciter or relates to the jurisdiction of the Court. Where it is the latter, a different consideration applies. The law allows the raising of an issue of jurisdiction even for the first time on appeal with or without obtaining leave of the Court. The reason stems from the fact that the issue of jurisdiction is fundamental and goes to the root of the entire adjudication. Where the Court lacks jurisdiction, any step taken in the proceedings including the judgment, no matter the erudition exhibited would be an exercise in futility for the proceedings are a nullity and liable to be set aside. It is for this reason the law allows raising the issue of jurisdiction even for the first time on appeal even without seeking for leave to raise same. See GAJI VS PAYE (2003) SC 53; COMPAGNIE GENERAL DE GEOPHYSIQUE (NIGIT) NIG LTD VS AMINU (2015) LPELR 24463; AG KWARA STATE VS ADEYEMO & ORS (2016) LPELR 41147 and MOHAMMED VS FRN (2018) LPELR 43908.
I have earlier on reproduced the grounds of appeal formulated in the Appellant’s notice of appeal. Undoubtedly, Ground 1 complains of the power of the Court below to hear and determine the appeal being outside the ambit of Islamic Personal Law. That issue was neither raised at the Court below, nor was leave sought for and obtained by the Appellant before raising the point. However, since it borders on the jurisdiction of the Court below to hear and determine the appeal, the ground of appeal is properly raised even without seeking for leave. The issue of jurisdiction, I dare say, can be raised and resolved by this Court suo motu. See TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 1213) 106; OMOKUWAJO VS FRN (2013) 9 NWLR (PT 1359) 300 and ONI VS FAYEMI & ORS (2019) LPELR 49299. Ground 1 in the Appellant’s notice of appeal is competent and valid and as such the preliminary objection on that score is dismissed.
The other grounds of objection are all anchored on the first ground and their consideration will only be necessary where the first ground of objection is upheld. Having failed, grounds 2-4 of the preliminary objection have no legs to stand. They must equally fail and are consequently dismissed as well. The preliminary objection is wholly dismissed.
In arguing the only issue for determination, learned Counsel for the Appellant submitted that in determining the jurisdiction of a Court, it is the claim of the plaintiff that ought to be considered. He referred to OBI VS INEC (2007) 11 NWLR (PT 1046) 560. From the Respondent’s claim what was before the trial Court is a dispute concerning ownership of a piece of land and the Court below was in error to hear and determine the appeal. He referred to MAGAJI VS MATARI (2000) LPELR 1813; HAKIMI & ANOR VS KWAKWABA & ANOR (2016) LPELR 40481 and FARANSI VS NOMA (2007) LPELR 8318.
In arguing this issue, learned Counsel for the Respondent submitted that contrary to the Appellant’s assertion, the dispute between the parties was not that of ownership of a land but about boundary of the land which was inherited. Thus, the subject matter of the suit before the trial Court and the Court below was not on ownership of the land but on the boundaries of the Appellant’s property which he purchased from the Respondent and the Court below has jurisdiction under Section 272 of the constitution of the Federal Republic of Nigeria, 1999 to hear and determine same.
He also argued that if the appeal succeeds on this score, even the judgment of the trial Court ought to be declared a nullity in that by the designation of Kiyawa town as an urban area, only a State High Court has jurisdiction in respect of the suit. He referred to Section 2 and then 13 to the Schedule to the Land Use Act 2004 (Designation of Urban Areas) order, 2010.
In his reply brief, the Appellants’ Counsel urged this Court to strike out paragraph 4.04, 4.05 and 4.06 raising a new point on appeal without obtaining leave of the Court, or without filing a cross-appeal. He also argued that since the Land Use Act (Designation of Urban Areas) order, 2010 was not considered by the trial Court, there is a need for evidence showing that the land is within the designated area demarcated as an Urban Area. He referred to OUR LINE LTD VS SCC (NIG) LTD & ANOR (SUPRA) and KANO VS OKA (2006) 3 SLR (PT 111) 184.
Jurisdiction is the authority which the Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment; it is a legal right by which judges exercise their authority. See MOBIL PRODUCING (NIG) LTD VS LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (2002) 114 SCM 167 and MUSACONI LTD VS ASPINALL (2013) 14 NWLR (PT 1375) 435.
The issue of jurisdiction is so radical and crucial aspect of the competence of a Court for where a Court lacks jurisdiction to hear and determine a matter, the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but rather extrinsic to adjudication. See SULE VS NIGERIAN COTTON BOARD (1992) 2 NWLR (PT 45) 17; SHITTA–BEY VS AG FEDERATION & ANOR (1998) LPELR 3058 and AG KWARA STATE & ANOR VS ADEYEMO & ORS (SUPRA).
There are some established legal requirements by the presence of which it can be said that a Court is competent to decide an action (1) Where a Court is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of the law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 SCNLR 341.
In the appeal before us, the Appellant argued that the subject matter of the appeal is not within the jurisdictional competence of the Court below. The law is well settled that it is the claim of the plaintiff as can be gleaned from the writ of summons and the statement of claim that determines the jurisdiction of the Court. See ADEYEMI VS. OPEYORI (1976) 6–10 SC 31; TUKUR VS. GOVT. OF GONGOLA STATE (Supra) and MAGAJI VS. MATARI (2000) 5 SC 57. The nature of the plaintiff’s claim and other statutory provisions establishing the Court are factors to be considered for both serve as guidance on Court’s limitation or powers.
The claim before the trial Court is related to a declaration of title to land, the pertinent question is whether the claim falls within the preview of Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)? The Section provides that:-
277 (1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of State, exercise such appellate and supervisory jurisdiction in Civil Proceedings involving question 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 guardianship of an infant;
c. any question of Islamic Personal Law regarding a waqf, 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.
The above provisions have received numerous judicial interpretation of this Court and the Supreme Court. Thus, the Sharia Court of Appeal has jurisdiction to hear and determine any question of Islamic Personal Law regarding marriage, waqf, gift, will or succession where the endower, donor testator or deceased person is a Muslim. The jurisdictional competence of the Court also extends to 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 infirmed. See TUMFAFI VS. MERESNO (1993) 1 NWLR (PT. 269) 378; ABUJA VS. BIZI (1989) 5 NWLR (PT. 119) 120 and JIJI VS. ABARE (1999) 1 NWLR (PT. 586) 243.
The power of the State to create and confer jurisdiction on Courts is not foreign to Islamic Law. The State under Islamic Law has the power to create and confer jurisdiction on Courts and any decision reached outside the Court’s jurisdiction is a nullity. In ASAYAYAH VS. ASAYAYAH (2013) LPELR 22958 AT 12–13; Oredola, JCA held that:-
“Under Islamic Law, territorial jurisdiction or jurisdiction concerning the parties and subject matter are conferred on Courts by the authority charged with the responsibility and no Court of record shall go outside the stipulated jurisdiction”.
Since the claim of the Respondent relates to a simple declaration of title to land, it follows that it cannot be classified as an action founded on Islamic Personal Law which the Court below can hear and determine pursuant to Section 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Now, the Respondent’s Counsel also argued meekly that the whole claim relating to a land in an urban area is not within the jurisdiction of the trial Court. It is surprising that learned Counsel for the Respondent who argued strenuously that the Appellant cannot raise an issue of law without leave can raise the issue of Land Use Act (Designation of Urban Areas) Order, 2010. Having no cross-appeal on the matter, he cannot raise the issue of jurisdiction of the trial Court. It has no legs upon which it can stand. The arguments on the issue are discountenanced. See UBA PLC VS. FRANCE APPRO SAS & ORS. (2015) LPELR 40394; AZUBUOGU VS. ORANEZI & ORS. (2017) LPELR 42699 and FCMB VS. JOHN (2021) LPELR 53356.
The lone issue for determination in this appeal succeeds. The Court below lacked the jurisdiction to hear and determine the appeal and as such its decision is a nullity and consequently set aside. The appeal is remitted to the High Court of Justice of Jigawa State for the Hon. Chief Judge to assign same to the Appeal Panel for hearing on the merits. Parties to bear their costs.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother, ABUBAKAR MU’AZUJ LAMIDO, JCA.
I agree with his reasoning and conclusion and I have nothing to add. I also abide by the consequential order contained therein.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mu’azu Lamido, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
BAFFA ALASAN, ESQ., WITH HIM, A.H. SULE, ESQ. and A.I. YARO, ESQ. For Appellant(s)
IBRAHIM ALIYU NASSARAWA, WITH HIM, ADEKUNLE TAIYE FALOLA, ESQ. For Respondent(s)
