FLAWAL RABIU & ORS v. LADAN MUSA & ORS
(2019)LCN/13251(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of May, 2019
CA/S/113S/2018
RATIO
JURISDICTION: IT IS DETERMINED BY THE PLAINTIFF’S CLAIM
It is a time hallowed principle of law that the jurisdiction of a Court is determined by the plaintiff’s claim and not by the defendant’s defence and this is determined by merely looking at the plaintiff’s statement of claim to see the nature of the claim. In the case of AFRICAN PETROLEUM Plc. V. AKINNA WO (2012) 4 NWLR (Pt 1289) 100 at 115 para A-D the Court held:
In considering whether or not a Court has jurisdiction or competence to entertain an action, it is only the plaintiff’s claim as endorsed on the writ of summons and the statement of claim that need to be examined by the Court. In other words, the legal position as to competence or otherwise of a trial Court or tribunal to entertain a case is arrived at solely, on the facts disclosed in the statement of claim.
See also ADEYEMI V. OPEYORI (1976)7-9 SC 31, AGBULE WARRI REFINERY & PETROCHEMICAL CO. LTD (2013) 6 NWLR (PT 1350) 318 as well as KANAWA V. MAIKASET (2007) 10 NWLR (PT1042) 283 @287 cited by the Appellant’s counsel.PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: THE LIMITATIONS OF THE SHARIA COURT’S JURISDICTION
Therefore, the avowed position of the law by concordant judicial interpretation of this oft invoked provision is that in the exercise of its appellate and supervisory jurisdiction, the Sharia Court of Appeal must restrict itself to the questions of Islamic personal law regarding WAKF, GIFT, WILL, OR SUCCESSION where the endower, donor, testator or deceased is a Muslim. See the oft cited cases of and ABUJA V BIZI (1989) 5 NWLR (pt. 119) 120, BOYI V HASSAN (2001) NWLR (PT744) 41 @ 48, MAGAJI v. MATARI (2000) 8 NWLR (PT 670) 722.PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: WHETHER THE JURISDICTION OF THE SHARIA COURT OF APPEAL INCLUDES CLAIMS OF TITLE TO LAND
This jurisdiction, it has become trite, does not include disputes on claim of title to land simpliciter. It is now a settled position of law that the Sharia Court of Appeal does not possess the jurisdiction to hear and determine an appeal where the issue before it involves the question of title to land simpliciter. See SALATI V SHEHU (1986) 1 NWLR (PT.15) 198, MAGAJI v. MATARI (supra), MAGAJI V. DATTIJO (SUPRA), FURFURI V RAWAYVAH (SUPRA) among several other decisions of the apex Court and this Court.
The scope of the jurisdiction of the Sharia Court of Appeal was succinctly stated by Karibi Whyte JSC in his concurrent judgment in Magaji v. Matari (supra), when he stated thus:
The intention of the Constitutional provision, which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject matters of Islamic Personal Law. The intention cannot be subverted by strained Construction of the provision to give it an unintended meaning.
Be it further emphasized that the jurisdiction of the Sharia Court of Appeal to hear and determine appeals on land disputes is limited to disputes on land related to questions of Islamic personal law on the specified items in paragraphs (a) – (d). This was aptly stated by Mohammed JSC in his judgment in MAGAJI v. MATARI (Supra) in these words:
Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: IMPORTANCE
Jurisdiction is the power from which Courts derive their authority to entertain matters placed before them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceeding before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity. It is the blood that gives life to the survival of an action in Court without which the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR V CO-O. ASSO. OF PROF. INC (2003) 5 NWLR (Pt 813) 303, NDAEYO V OGUNAYA (1977) 1 SC 11 @ 24 – 26.PER AMINA AUDI WAMBAI, J.C.A.
JUSTICE
AHMAD OLAREWAJU BELGORE justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO justice of The Court of Appeal of Nigeria
Between
1. LAWAL RABIU
2. ABDULLAHI SHEHU CHAKALTU
3. SANI MAMMAN
4. ALIYU MAMMAN
5. ISAH MAMMAN
6. AHMAD MAMMAN
7. SHEHU MAMMAN
8. HAMIDU SULE
9. BELLO SULE
10.LAWALI BAKO
11.AHMAD BAKO
12.LAWALI SALISU
13.IBRAHIM SALISU
14.ALIYU SALISUAppellant(s)
AND
1. LADAN MUSA
2. ABDULLAHI HAKIMI
3. MAMMAN SANI
4. MALAM HASSAN ALHAJI BUBA
5. SANI HUSSAINI
6. SANI ALHAJI MAMMAN
7. AHMADU ALHAJI BUBA
8. SANI HUSSAINI
9. ATTAHIRU JIBRIL
10. ILIYASU AUTA
11. ABDULLAHI AUTA
12. ABDULLAHI USTAZU AUTA
13. ALIYU AUTA
14. AHMAD AUTA
15. USMAN AUTA
16. IDRIS ALHAJI BUBARespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The appeal before us took its roots from the decision of Sharia Court, Gandi (the trial Court) delivered on 29/3/2017 from where it sojourned to the Upper Sharia Court, Wurno and then to the Court below, Sharia Court of Appeal, Sokoto, which dismissed the Appellant’s appeal and affirmed the concurrent decisions of the trial Court, Gandi and the Upper Sharia Court, Wurno.
As claimants, the Appellants instituted an action at the trial sharia Court, Gandi, against the Respondents as defendants for the return of the farmland loaned to the Respondents’ parents by the Appellants’ parents, now in the possession of the Respondents which they have refused to return. The respondents denied the claim contending that they inherited the land from their parents.
The matter proceeded to trial and both parties presented their witnesses. The Court upon reviewing the evidence, entered judgment in favour of the Respondents. Dissatisfied, the Appellants unsuccessfully appealed to the Upper Sharia Court, Wurno which dismissed the appeal and affirmed the judgment of the trial Court.
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Again, unhappy, they appealed to the Court below which also dismissed the appeal and affirmed the concurrent decisions of the two lower Courts. Still displeased and unrelenting, the Appellants approached this Court by a Notice of Appeal filed on 9/5/18 predicated on two grounds from which learned A. M. Dole, Esq., who settled the Appellants’ brief of argument filed on 8/11/2018, distilled a lone issue for determination, namely: –
1. Whether Shari’a Court of Appeal, Sokoto State has jurisdiction to hear and determine the Appellants appeal when the subject matter was title to landed property.
At the hearing of the appeal on 26/3/2019, Respondents’ learned counsel, M. Shehu, Esq., intimated the Court that he concedes to the appeal, thence, filed no brief of argument.
This appeal was thus argued as a non-contested appeal, the respondent having not opposed the appeal. That notwithstanding, the appeal has to succeed or fail on the strength of the Appellant’s case. The Respondent’s admission to the appeal and absence of the Respondent’s brief do not operate as open or automatic ticket for the success of the appeal. The sustainability of the appeal
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depends on its own strength, and will swim or sink on its legal value and not on the absence of the Respondent’s brief. See Echere Vs Ezirike (2006) 12 NWLR (Pt. 994) 3861, Akanbi Vs Alatede (2000) FWLR (Pt 11) 1928.
The centerpiece of the Appellants’ argument is that since the jurisdiction of a Court is determined by the plaintiff’s claim and the Appellants’ claim being that of declaration of title to land simpliciter, the Appellate jurisdiction of the lower Court is ousted by virtue of Section 277(1) and (2) of the Constitution of the Federal republic of Nigeria, 1999 (as amended) as interpreted in several decisions. He cited in support, several authorities including Alh. Yahaya Salama & Hajiya Dije Vs Alh. Mamman & Anr (2006) 3 SCR (Pt 1) 203, Abuja Vs Bizi (1989) 5 NWLR (Pt 119) 120, Magaji Vs Matari (2000) 8 NWLR (Pt. 670) 722, Magaji Vs. Dattijo (2007) All FWLR (Pt 365) 599 and Furfuri Vs Rawayyah (2008) All FWLR (Pt 401) 1000. He contended that though the issue was not raised at the lower Court, being a jurisdictional issue, it is properly raised before this Court, citing in support the cases of Likudano Vs Keregbe (2002) 38 WRN 139-142,
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Management Enterprises Ltd. Vs Otusanya (1987) 2 NWLR (Pt 55) 179, Rivway lines Ltd. VS Rhein Mas Und See (1993) 7 NWLR (Pt 308) 629-704. He has therefore asked that Section 14 of the Sokoto State Sharia (Administration of justice) Law No. 3200 which provides that an appeal shall lie from the decision of Upper Sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal be declared unconstitutional being inconsistent with the provisions of the said Section 277 (1) and (2) of the Constitution.
It is a time hallowed principle of law that the jurisdiction of a Court is determined by the plaintiff’s claim and not by the defendant’s defence and this is determined by merely looking at the plaintiff’s statement of claim to see the nature of the claim. In the case of AFRICAN PETROLEUM Plc. V. AKINNA WO (2012) 4 NWLR (Pt 1289) 100 at 115 para A-D the Court held:
In considering whether or not a Court has jurisdiction or competence to entertain an action, it is only the plaintiff’s claim as endorsed on the writ of summons and the statement of claim that need to be examined by the Court. In other words, the legal position as to competence
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or otherwise of a trial Court or tribunal to entertain a case is arrived at solely, on the facts disclosed in the statement of claim.
See also ADEYEMI V. OPEYORI (1976)7-9 SC 31, AGBULE WARRI REFINERY & PETROCHEMICAL CO. LTD (2013) 6 NWLR (PT 1350) 318 as well as KANAWA V. MAIKASET (2007) 10 NWLR (PT1042) 283 @287 cited by the Appellant’s counsel.
Therefore, to determine whether the lower Court is vested with the requisite jurisdiction to entertain the case, the Appellants’ statement of claim before the trial Court is the reference point. The statement of claim as reproduced at pages 1 to 2 of the record of appeal reads thus:
We, Abdullahi Shehu Chakaltu (2) Rabiu Mamman (3) Sani Mamman (4) Aliyu Mamman (5) Isah Mamman (6) Ahmad Mamman (7) Shehu Mamman (8) Hamidu Sule (9) Bello Sule (10) Lawali Bako (11) Ahmad Bako (12) Lawali Salisu (13) Ibrahim Salisu (14) Aliyu Salisu all residents of Chakaltu, village do collectively raise a law suit against:
1. Ladan Musa (2) Abdullahi Hakimi (3) Mamman Sani (4) Malam Hussaini Alh. Buba (5) Sani Hussaini (6) Sani Alh. Mamman (7) Ahmadu Alh. Buba (8) Sani Hussaini (9) Haliru Jibril
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(10) Iliyasu Auta (11) Abdullahi Auta (12) Abdullahi Ustazu Auta (13) Aliyu Auta (14) Ahmad Auta (15) Usman Auta (16) Idris Alh. Buba all residents of Zanga in Gamuzza village the farmlands which our parents in the persons of (i) Shehu (2) Mamman (3) Sule (4) Bako (5) Dana Salisu gave to their parents in the persons of (1) Alh. Buba Zango (2) Isah Zango (3) Auta Zango to hold in loan now our parents and their parents are all deceased and we have demanded that they give us back our farms which our parents gave to their parents but they have denied any knowledge of the situation claiming that the farms belonged to their deceased parents and they inherited them.
It is crystal clear from the reproduced statement of claim that the Appellants’ claim before the trial Court is that of declaration of title to the disputed land which was loaned by their predecessors to the respondent’s parents and which the respondents have refused to return claiming that they inherited same from their parents. The claim is simply that of land involving the question of ownership of title to the land.
Now, what is the scope of the jurisdiction of the lower Court?
The
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jurisdiction of the Sharia Court of Appeal is as provided in Section 277 (1) & (2) A-E It provides:
(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 a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
(c) any
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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.
By virtue of the sub-section 2, the Sharia Court of Appeal has the exclusive jurisdiction to hear and determine any appeal on any question of Islamic personal law regarding marriage, wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim, infant, prodigal or person of unsound mind who is a Muslim and maintenance/guardianship of a Muslim who is physically or mentally infirm.
Looking at these provisions, the jurisdiction of the Sharia Court of Appeal is confined and limited to the specified subject matters which can generally be termed as
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Islamic Personal law or personal status relating to the specified matters in sub section 2 (a)-(e) of Section 277 of the constitution. These are matters related to marriage and its dissolution; family relationship or the guardianship of infants; wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. It also includes any question regarding an infant, a prodigal or any person of unsound mind who is a Muslim or the maintenance or the guardianship of any such a Muslim who is physically or mentally infirm; or any other question where the parties being Muslims, have requested the Court of first instance to hear and determine their case in accordance with Islamic personal law.
Therefore, the avowed position of the law by concordant judicial interpretation of this oft invoked provision is that in the exercise of its appellate and supervisory jurisdiction, the Sharia Court of Appeal must restrict itself to the questions of Islamic personal law regarding WAKF, GIFT, WILL, OR SUCCESSION where the endower, donor, testator or deceased is a Muslim. See the oft cited cases of and ABUJA V BIZI (1989) 5 NWLR (pt. 119) 120, BOYI V HASSAN
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(2001) NWLR (PT744) 41 @ 48, MAGAJI v. MATARI (2000) 8 NWLR (PT 670) 722. This jurisdiction, it has become trite, does not include disputes on claim of title to land simpliciter. It is now a settled position of law that the Sharia Court of Appeal does not possess the jurisdiction to hear and determine an appeal where the issue before it involves the question of title to land simpliciter. See SALATI V SHEHU (1986) 1 NWLR (PT.15) 198, MAGAJI v. MATARI (supra), MAGAJI V. DATTIJO (SUPRA), FURFURI V RAWAYVAH (SUPRA) among several other decisions of the apex Court and this Court.
The scope of the jurisdiction of the Sharia Court of Appeal was succinctly stated by Karibi Whyte JSC in his concurrent judgment in Magaji v. Matari (supra), when he stated thus:
The intention of the Constitutional provision, which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject matters of Islamic Personal Law. The intention cannot be subverted by strained Construction of the provision to give it an unintended meaning.
Be it further emphasized that the jurisdiction of the Sharia Court
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of Appeal to hear and determine appeals on land disputes is limited to disputes on land related to questions of Islamic personal law on the specified items in paragraphs (a) – (d). This was aptly stated by Mohammed JSC in his judgment in MAGAJI v. MATARI (Supra) in these words:
Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.
To this extent, Section 14 of the SOKOTO STATE SHARIA (ADMINISTRATION OF JUSTICE) LAW (now simply referred to as the state of law) which provides that an appeal shall lie from the decision of upper sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal, must be read subject to Section 277 (2) of the constitution of the Federal Republic of Nigeria 1999 (as amended). In other words, in interpreting Section 14 of the said State Law with respect to civil appeals emanating from the upper sharia Court, in so far as the issue involves a dispute on title to land, simpliciter, Section 14 of the State Law shall
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give way to Section 277 (2) of the constitution and such appeal shall not lie to the sharia Court of Appeal but shall lie to the State High Court.
From the litany of decided authorities vis a vis the statement of claim before the trial Court, no judicial erudition is required to come to the irresistible conclusion that the appellate and supervisory jurisdiction of the lower Court does not extend to entertaining this action which is purely on dispute over ownership of land simpliciter, and is not related to any dispute involving questions of Islamic personal law. The dispute only raises the question of title to the disputed piece of land as between the Appellants and the respondents. It has nothing to do with any issue of Islamic law on land matter regarding or connected with a wakf, gift, will, or succession which requires the application of Islamic law. In other words, the claim before the lower Court is completely outside the purview of the jurisdiction of that lower Court and it acted without jurisdiction when it entertained the appeal.
Jurisdiction is the power from which Courts derive their authority to entertain matters placed before
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them for adjudication, and it is a matter that is statutorily based. The fundamental nature of jurisdiction, I must reiterate, cannot be overemphasized as it is the key to the competence of the Court adjudicating. So crucial is it that it is the body and soul of every judicial proceeding before any Court or Tribunal, and without it, all subsequent proceedings are fruitless, futile and a nullity. It is the blood that gives life to the survival of an action in Court without which the action will be like an animal drained of its blood. See CHIEF U. UTIH & ORS JACOB U. ONOYIVWE & ORS (1991) 1 SCNJ 25 @ 49, AFRO CONTINENTAL (NIG) LTD & ANR V CO-O. ASSO. OF PROF. INC (2003) 5 NWLR (Pt 813) 303, NDAEYO V OGUNAYA (1977) 1 SC 11 @ 24 – 26.
It is this fundamental and threshold nature of jurisdiction that makes it a no respecter of the twin principles of law namely; (a) of waiver and (b) requirement of leave before raising fresh issues on appeal, not raised, canvassed at and pronounced upon by the lower Court. Being intrinsic to judicial proceedings, the skeleton that holds the body of the action and the live wire of every adjudication, the doctrine of
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abandonment of right otherwise known as waiver and the principle of-law that new or fresh issues can only be raised on appeal with leave of the Appellate Court do not apply where the new or fresh issue is one of jurisdiction. The issue or question of want of jurisdiction of Court can neither be waived nor requires leave of Court to raise at any stage. It can neither be waived nor premature or too late to raise at any stage of the proceedings by either of the parties or even the Court itself. It can be raised on appeal for the first time even at the Supreme Court. See PETROJESSICA ENTERPRISES LTD & ANOR vs. LEVENTIS TECHNICAL COMPANY LTD (1992) LPELR-2915 (SC); STATE v. ONAGORUWA (1992) 2 SCNJ 1 at 9 and OLUTOLA v. UNILORIN (2004) 11-12 SC.
This has to be so because without it the Court only labours in vain or at best as a toothless bulldog. Whatever the Court does or attempts to do without jurisdiction amounts to nothingness. Indeed, from nothing comes nothing “ex nihilio nihil fit”. It is an exercise in futility as something cannot be placed on nothing and be expected to stand,MACFOY V. UAC.
It is for this reason that a plaintiff at the Court
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of trial or an appellant at the stage of appeal as the appellant in the case at hand who did not at the Court below object to the jurisdiction of the lower Court, cannot be precluded from taking the point of want of jurisdiction of that Court no matter how bitter or sore it may taste in his mouth having fully participated in the proceedings without raising an eye brow. Being a threshold issue, and the spinal cord of the Court, it is one of the exceptions to the afore stated general twin principles of law. Either party can raise the issue on appeal for the first time without leave of Court. It can also not be caught up by the doctrine of waiver. For this, I am in full agreement with the appellant’s counsel that the issue of want of jurisdiction of the lower Court is properly taken in this appeal.
The law is trite that where a Court adjudicates on a matter without or in excess of jurisdiction, the adjudication amounts to a nullity. It is an exercise in futility and amounts to nothingness.
Once a Court has no jurisdiction to adjudicate on a matter even where it had done so, such adjudication amounts to a nullity; it has no legal force whatsoever and
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it is as if it never took place because of the incompetence of the Court to have entertained the case ab initio. Therefore, the entire proceedings of the lower Court and its by product, the judgment delivered on 15/03/2018 which is the subject of this appeal, amounts to a nullity for being incompetent. It is entitled, as a matter of course, to be set aside. Accordingly, I allow the appeal and set aside the decision of the lower Court. The appeal from the decision of the Upper Sharia Court delivered on 13/07/2017 is referred to the Hon. Chief Judge of Sokoto State High Court for adjudication.
Though, the Appellants have become victorious in this appeal, the losing respondents are entitled to cost assessed at 80,000 against the successful appellants for forum shopping.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the draft of the judgment just delivered by my Learned Brother, AMINA AUDI WAMBAI, JCA and I am in agreement with the reasoning and conclusion reached in deciding the appeal. I abide by all consequential orders
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made thereto.
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Appearances:
A. M. Dole, Esq.,For Appellant(s)
M. Shehu, Esq.,For Respondent(s)
Appearances
A. M. Dole, Esq.,For Appellant
AND
M. Shehu, Esq.,For Respondent
