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MARUKO v. BALARI (2022)

MARUKO v. BALARI

(2022)LCN/17075(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/K/217/S/2019

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

MAI UNGUWA YAYAJI MARUKO APPELANT(S)

And

ADAMU USMAN MARUKO BALARI RESPONDENT(S)

 

RATIO

THE JURISDICTION OF THE SHARIA COURT OF APPEAL

Pursuant to this provision, a Sharia Court of Appeal was established in Jigawa State. The jurisdiction of the Court is as provided in Section 277 of the Constitution, which provides;
“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 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 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.”
Before pronouncing on the jurisdiction of the lower Court, let me make my foundation with the decision of the Supreme Court in ROSSEK & ORS Vs. ACB LTD & ORS (1993) 8 NWLR (Pt. 312) 3821 (1993) LPELR – 2955 (SC) Per Uwais, JSC (as he then was) later CJN:
“It is settled law that a previous decision of any division of the Court of Appeal is binding on all the Justices of that Court.”
PER MUSALE, J.C.A.

THE POSITION OF LAW ON WHEN THE SHARIA COURT OF APPEAL CAN HEAR APPEALS IN LAND DISPUTES

It is trite law that a Shariah Court of Appeal can only hear appeals in land disputes 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. See MAGAJI Vs. MATARI [2000] 8 NWLR (Pt. 670) 722 see also S.277(1), (2)(a-e ) of the 1999 Constitution.
It therefore follows that Section 10 of the Shari’ah Court of Appeal Law CAP S5 Laws of Jigawa State (2012) which conferred additional jurisdiction to the lower Court is clearly inconsistent with the provisions of Section 277(2) of the Constitution of Federal Republic of Nigeria, 1999. To that extent, by Section 1(3) of the same Constitution, the State Law is null and void to the extent of the inconsistency.
Let me add that issue of jurisdiction of Sharia Court of Appeal of a State has since 1986 been settled by this penultimate Court in plethora of decided authorities. The well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia Courts (as they are now being named or called in some States adopting Sharia Legal system), the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjudicate under the provisions of Section 277(1) and (2) of 1999 Constitution. See generally, FARANSI Vs. NOMA (supra).
PER MUSALE, J.C.A.

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Sharia Court of Appeal, Jigawa State delivered on 24th October, 2017. This matter started from Higher Sharia Court, Kafin Hausa (herein trial Court). At the trial Court, the plaintiff/appellant sued the defendant/respondent claiming his farm. In his words, he said “I Adamu Usman Maruku sued Mai Unguwa Yayaji Maruku claiming my inherited farm from him,” page 16 of the record. The trial Court gave judgment in favour of the plaintiff. It held on page 30 of the record as follows:
“Based on the Court investigation, on this matter that the plaintiff proved his case with reliable witness and the Court accepted their evidence that the farm belongs to plaintiff he inherited it from his for fathers and it is not a royal farm. He inherited it from his fore fathers who cultivated the forest and make the place to become farm…”
page 30 of the record.

Dissatisfied with this decision, the defendant appealed to Upper Sharia Court of Appeal, Hadejia Zone (herein intermediate Court). Here, the plaintiff restated his claim as follows; “I sued Yayaji claiming my farmland from him.” See page 67 of the record. The full Court allowed the appeal on the grounds that; the “Court of first instance didn’t understand the claim before it, as it is a claim of trust or ownership by way of inheritance.” See page 73 of the record. The farm was given to the appellant, Mai Unguwa Yayaji, his appeal was successful.

The plaintiff/appellant was not satisfied with that decision, so he appealed to Sharia Court of Appeal Jigawa State, (herein lower Court) sitting at Dutse. The Court on page 83 of the record observed:
“The origin of this case, the appellant before this Court and respondent at lower Court stated his statement of claim that, “I’m seeking my farm which I have inherited it from my father which when I decided to leave the village which I am the Village Head at that time I have informed my Ward Head and asked him to look over my farm as trustee, I also meet Alh Toro K/Hausa, we go to Wakili of K/Hausa and moved to District Head K/Hausa and I also informed him by intention and told him I informed them all.”

The lower Court came to the conclusion that the plaintiff/appellant’s ownership of the farm was not denied. It quashed the decision of the intermediate Court and restored the judgment of the trial Court.

Mai Unguwa Yayaji Maruko was not happy with the judgment of the lower Court, so he filed his Notice of Appeal against that judgment on 13th/11/2017. The notice has three grounds of appeal viz:
1. The judgment of the lower Court delivered on the 24th day of October, 2017 in Appeal No. SCA/JG/CVA/63/2017 is a nullity, as same was given by the lower Court without jurisdiction.
2. The Kadis of the lower Court erred in law where they hold that Islamic principle of Hauzi (prescription) does not apply to the circumstances of the appeal before them as such, entered their judgment in favour of the respondent.
3. The judgment of the lower Court delivered on the 24th day of October, 2017 in Appeal No. SCA/JG/CVA/63/2017 was against the weight of evidence.
Particulars of error were provided.

The compiled and transmitted record of appeal was filed on the 15th/04/2019 in this Court and it is deemed properly so filed and served on 26th/01/2021. The appellant’s brief of argument was settled by K.S. Adamu Esq and filed on 2nd/02/2021. M.B. Dikwa Esq., settled the respondent’s brief of argument and filed the same on 18th/02/2022. It was deemed properly filed on 21st/02/2022.

The appellant formulated two issues for the determination of the appeal viz;
1. Whether having regards to the nature of the claim before the lower Court (which borders on declaration of title to land), the lower Court has jurisdiction to entertain the appeal and entered judgment. (Distilled from Ground 1).
2. Whether from the facts and circumstances of the appeal before the lower Court and the original claim before the lower trial Court, the lower Court was right in affirming the decision of the lower trial Court by entering its judgment in favour of the respondent. (Distilled from Gounds 2 and 3).

The respondent adopted the issues formulated by the appellant in the determination of the appeal.

The learned counsel to the appellant started with the submission that the claim before the trial Court and lower Court was for declaration of title to a farmland which both Courts have no jurisdiction to entertain under particularly the Land Use Act and the 1999 Constitution (as amended). That only the High Court has jurisdiction on issues involving title to land. He continued that in considering issues of jurisdiction, the plaintiff’s claim as endorsed on the writ and/or statement of claim or originating process ought to be examined by the Court, SAVANNAH BANK (NIG) PLC Vs. SABA (2018) 14 NWLR (Pt. 1638) 56 AT 85 & 97.

Counsel submitted that issue of jurisdiction is fundamental, that any decision reached by a Court however beautiful or sound becomes a nullity once pronounced without jurisdiction. He relied on MAILANTARKI Vs. TONGO (2018) 6 NWLR (Pt. 1614) 69 AT 87 and OKOROCHA Vs. UBA PLC (2018) 17 NWLR (Pt. 1649) 441 2 461. He urged the Court to resolve this issue in favour of the appellant.

On the second issue, learned counsel submitted that the trial Court was in error when it entered judgment in favour of the respondent. That the intermediate Court was right when it used period of prescription (Hauzi) to confirm title on the respondent who had been in possession of the property for 25 years. See page 84 of the record. Counsel submitted further that under Islamic Law, possession of property for 10 years qualifies the person in possession to acquire good title over such property by Doctrine of Prescription (Hauzi). See HAKIMI UMMARU Vs. AISHA BAKOSHI (2006) 3 SLR (Pt. 1) 80 and ALHAJI MAHMUD KABARA Vs. AMINU SANI KABARA (2006) 3 SLR (Pt. 1) 115.

Learned counsel added that the trial Court was in error when it asked the appellant to explain how he came into possession, pages 18 – 26 of the record. He relied on NUHU FALINGO Vs. M. YAU FALINGO (2006) SLR (Pt. 111) 211 AT 213 and TABSIRATU AL-HUKKAM FI USULIL AQDHIYATI WA MMANAHIJIL AHKAMI VOL. 2 PG 93. That it was wrong for the Court to ask the defendant to state his case, AISHATU KAUSANI & ORS Vs. WADA KAUSANI & 3 ORS (2008) 3 SLR (Pt. 1) 49 AT 52. That for these reasons, the trial Court and lower Court were in error in giving judgment to the respondent. He urged the Court to allow the appeal and set aside the judgment of the lower Court.

The learned counsel to the respondent in reply submitted that all the lower Courts have jurisdiction to entertain this matter per Section 5 of the Sharia Court (Administration of Justice and Certain Consequential Changes) Law CAP. S4 Laws of Jigawa State 2012. Which provides:
(1) Subject to the provisions of Sections 46, 251 and 285 and paragraphs 15(4) and 18 of the Fifth Schedule of the Constitution and any other provision vesting exclusive jurisdiction in any Court or Tribunal established under the Constitution but without prejudice to the provisions of Section 272 of the Constitution and any other law vesting jurisdiction in any Court that derives existence under the Constitution, the Shari’ah Courts shall have jurisdiction and power to hear and determine causes and matters set out in Sub-sections (2) and (3) of this section.
(2) Civil proceedings: – civil proceedings in Islamic Law in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim (duty to an individual or individuals or the state) is in issue.

In addition, the learned counsel further relied on Section 10 of the Shari’ah Court of Appeal Law CAP S5 Laws of Jigawa State on jurisdiction of the Court viz:
(1) Subject as otherwise provided in this Law, the Court shall have jurisdiction to hear and determine appeals from Upper Shari’ah Court.
(2) For all the purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment, order or decision made therein, the Court shall have all the powers, authority and jurisdiction of every Shari’ah Court which the judgment; order or decision is the subject of an appeal to the Court and without prejudice to the generality of the foregoing, shall have all the powers conferred upon Shari’ah Court exercising appellate jurisdiction under any Shari’ah Court Law.

Counsel urged the Court to hold that pursuant to the laws cited supra, all the Courts through which this matter went before, have jurisdiction to hear and determine the matter. Counsel submitted that the claim that led to this appeal was “for the return of farmland entrusted”. He continued that the appellant was not claiming ownership of the said farmland, but that the farmland belongs to government and it is given to whoever becomes the Village Head and he is now the Village Head. See page 84 of the record. Counsel urged the Court to resolve this issue in favour of the respondent.

On the principle of Prescription (Hauzi), learned counsel submitted that this case falls under the exception of the rule of prescription. He referred to page 17 of the record indicating how the respondent left the farmland under trust and none denied this fact. He relied on TELA & ANOR Vs. KWARAGO (2013) 1 SQLR (Pt. 111) 22 AT 26, DANO Vs. BALA (2014) 2 SQLR (Pt. 11) 212 AT 222 and MAKERI Vs. SABO (2014) 2 SQLR (Pt. 1V) 579 AT 592. He urged the Court to dismiss the appeal and uphold the decision of the lower Court with cost.

RESOLUTION OF ISSUES
From the outset, it very clear that Section 10 of the Shari’ah Court of Appeal Law CAP S5 Laws of Jigawa State has expanded the jurisdiction of the lower Court beyond that donated to it by the Constitution. Without dispute, the Sharia Court of Appeal is a creation of the 1999 Constitution (as amended). Section 275 of the Constitution provides:
(1) There shall be for any state that requires it a Sharia Court of Appeal for that State.

Pursuant to this provision, a Sharia Court of Appeal was established in Jigawa State. The jurisdiction of the Court is as provided in Section 277 of the Constitution, which provides;
“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 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 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.”
Before pronouncing on the jurisdiction of the lower Court, let me make my foundation with the decision of the Supreme Court in ROSSEK & ORS Vs. ACB LTD & ORS (1993) 8 NWLR (Pt. 312) 3821 (1993) LPELR – 2955 (SC) Per Uwais, JSC (as he then was) later CJN:
“It is settled law that a previous decision of any division of the Court of Appeal is binding on all the Justices of that Court.”
This Court sitting in full, in FARANSI Vs. NOMA (2007) LPELR – 8318 (CA) dealt with the issue of jurisdiction of the Sharia Court of Appeal, that in my view has a lot of relevance to this case. I will therefore use the decision extensively to benefit. In the case, this Court in construing Section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000, which conferred unlimited jurisdiction in civil and criminal matters to the Sharia Court of Appeal Kebbi State found it manifestly inconsistent with the express provision of Section 277(1) and (2) of the 1999 Constitution and by the provision of Section 1(3) of the 1999 Constitution, it declared the State Law null and void to the extent of its inconsistency.
From the record, the respondent as plaintiff adduced evidence as to how he came to have the farmland and how according to him, he left it in trust. The appellant as defendant on the other hand stood on the ground that the farmland is a Royal farm and as Village Head, it now belongs to him. Is not in dispute that issue before the lower Court has to do with title of farmland.
​The Sharia Court of Appeal of a State derives its jurisdiction from the provisions of Section 277 of the Constitution of the Federal Republic of Nigeria, 1999. No doubt, Section 277(1) of the Constitution has allowed a window for the Sharia Court of Appeal of a State to be conferred with additional jurisdiction. This might be the reason for the establishment of the Sharia Court of Appeal Law, CAP S5 Laws of Jigawa State, 2012. Though such is allowed, any additional jurisdiction to be conferred on the Sharia Court of Appeal, must relate to issues of Islamic Personal Law. In the event of a breach, the Constitution had provided a remedy in Section 1(1) and (3) as follows:
1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
1(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of inconsistency be void.
This Court in KATSIRA Vs. YALLIYA (2014) LPELR – 23824 (CA) had reason to make a pronouncement in a similar situation in these words:
It is trite law that a Shariah Court of Appeal can only hear appeals in land disputes 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. See MAGAJI Vs. MATARI [2000] 8 NWLR (Pt. 670) 722 see also S.277(1), (2)(a-e ) of the 1999 Constitution.
It therefore follows that Section 10 of the Shari’ah Court of Appeal Law CAP S5 Laws of Jigawa State (2012) which conferred additional jurisdiction to the lower Court is clearly inconsistent with the provisions of Section 277(2) of the Constitution of Federal Republic of Nigeria, 1999. To that extent, by Section 1(3) of the same Constitution, the State Law is null and void to the extent of the inconsistency.
Let me add that issue of jurisdiction of Sharia Court of Appeal of a State has since 1986 been settled by this penultimate Court in plethora of decided authorities. The well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia Courts (as they are now being named or called in some States adopting Sharia Legal system), the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjudicate under the provisions of Section 277(1) and (2) of 1999 Constitution. See generally, FARANSI Vs. NOMA (supra).
Having held that the Sharia Court of Appeal Jigawa State has no jurisdiction to entertain and determine this suit, being one regarding title to farmland, its decision is therefore set aside. The only judgment subsisting now is the decision of Upper Sharia Court of appeal, Hadejia Zone.

This appeal is meritorious. It is hereby allowed. The proceedings and judgment Sharia Court of Appeal, Dutse Jigawa State are hereby set aside. The appeal is hereby ordered to be transmitted to the High Court of Justice Jigawa State to be reassigned by the Hon. Chief Judge for re-hearing by the appellate division of the Court.
Parties are to bear their respective costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, U. A. MUSALE, 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.

MOHAMMED DANJUMA, J.C.A.: I have the privilege to read in draft, the lead judgment of my learned brother, U. A. MUSALE JCA. I agree with the reasoning and conclusion that the appeal is meritorious and is hereby allowed. I abide by all the consequential orders in the lead judgment.

Appearances:

K. S. Adamu, Esq., with him, C. K. Udeoba, Esq., H. B. Abubakar, Esq., G. A. Joab, Esq. and I. A. Nata’alah, Esq. For Appellant(s)

M. B. Dikwa, Esq. For Respondent(s)