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MIGA v. MIGA (2022)

MIGA v. MIGA

(2022)LCN/17101(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/KN/154/S/2021

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

MAYAU LIMAN MIGA APPELANT(S)

And

ADAMU DANGATA LIMAMAI MIGA RESPONDENT(S)

 

RATIO

THE PURPOSE OF REPLY BRIEFS IN APPEALS

The reply brief filed by the appellant in my view contravened the purpose for which it is filed. The purpose of a reply brief in appeals had been stated and restated in several decisions of this Court and the Apex Court including the case of OCHEMAJE Vs. THE STATE (2008) 15 NWLR (Pt. 1109) 57, where the vastly proficient Tobi, JSC set out the purpose of a reply brief in the following manner; “A reply brief is not one for repetition of the arguments in the appellant’s brief. It is not a forum for emphasizing the averments in the appellant’s brief. On the contrary, a reply brief, as the name implies replies to the respondent’s brief. In the exercise, an appellant need not repeat the issue joined either by emphasis or by expatiation.” Absolutely nothing more can be said on the purpose of a reply brief than this very weighty and final authority. See ADEBIYI Vs. SORNMADE (2004) ALL FWLR (Pt. 239) 933, NWALI Vs. STATE (1991) 3 NWLR (Pt. 182) 663, OJUKWU Vs. OBASANJO (2004) 7 SC (Pt.1) 117. PER MUSALE, JC.A.

THE POSITION OF LAW ON STRIKING OUT A SUIT

This Court has inter alia held in HABIB BANK NIG LTD Vs. LODIGIANI (NIG) LTD (2010) LPELR-4428 (CA), that an order striking out a matter, gives an opportunity to the party who instituted the action to apply to the Court for an order relisting the same, or to file a fresh action. Striking out a suit means removal of the suit from the cause list of a Court.
Higher Sharia Court Jahun having struck out the suit sent to it for retrial has left the parties on their own. Certainly, only the party seeking for his rights will return to Court and he did. He went to where in his estimation, he will get justice. Miga Sharia Court would do, in his estimation. The Court however for want of jurisdiction transferred the matter to Upper Sharia Court Dutse where the matter was heard in conclusion.
Again in ADEYEMO Vs. AROKOPO (supra), the apex Court held that, “An order of retrial is proper where the trial Court failed to resolve vital conflicting evidence on important issues”. See ONYEMA OKE Vs. AMOS EKE (1982) 12 SC 218 AT 237. It is not on record that the Upper Sharia Court Dutse had failed to resolve vital conflicting evidence on important issues before it. What is on record is that the Court heard all the witnesses of the plaintiff. The defendant had no witness or presented none. The Court therefore gave judgment to the plaintiff, page 136 of the record.
PER MUSALE, JC.A.

THE JURISDICTION OF THE SHARIA COURT OF APPEAL

In order to appreciate and fully understand the provision of Section 277 (2) (c) of the 1999 Constitution as amended, where succession or inheritance has been made part of the jurisdiction of the Sharia Court of Appeal, it is apposite to reproduce the relevant/requisite Section and Sub-section accordingly. It provides and I quote:
“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 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 – 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.”
In FARANSI Vs. NOMA (2007) 10 NWLR (Pt. 1041) 21, Sanusi, JCA (as he then was) later JSC explained the jurisdiction of the Sharia Court of Appeal thus:
“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 provision of S. 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. See the case of GARBA Vs. DOGONYARO (1991) 1 NWLR (Pt. 165) 102; USMAN Vs. KAREEM (1995) 2 NWLR (Pt. 379) 537; MAGAJI Vs. MATARI (2000) 8 NWLR (Pt. 670) 72 and MAIDA Vs. MODU (2000) 4 NWLR (Pt. 651) 99.” 
PER MUSALE, JC.A

THE POSITION OF LAW ON THE REASONS FOR SETTING ASIDE DECISION OF A LOWER COURT ON APPEAL UNDER ISLAMIC LAW

In my view, above is enough for the lower Court to understand whether or not it has jurisdiction in the matter. If it has no jurisdiction, then any pronouncement made except to decline jurisdiction is void.
Let me further observe that this Court in SAFETI & ORS Vs. SAFETI & ANR (2006) LPELR–7579 (CA) enumerated reasons for setting aside decision of a lower Court on appeal under Islamic Law. They are;
(1) Where it is in conflict with any provision of the Holy Quran.
(2) Where it is in conflict with the provision of any authentic Tradition of the Prophet (PBUH).
(3) Where it is in direct conflict with ljma.
(4) Where it conflicts with Qiyas.
(5) Where it is against popular view of the official Mazhab applicable in the area of jurisdiction or against sound reasoning.
(6) Where the Judge lacks jurisdiction.
(7) Where it was obtained under fraud, deceit etc.
Per I. T. Muhammad, JCA (as he then was) now CJN.  PER MUSALE, J.C.A

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This suit as constituted started at Miga Sharia Court, where the appellant sued the respondent claiming 2 farmlands. Miga Sharia Court transferred the suit to Upper Sharia Court, Dutse in Jigawa State. The suit was registered as CV/175/2016 before the Upper Sharia Court (hereinafter trial Court for this purpose).

From the record Mal Suleman was the maternal grandfather of the appellant and his brothers. Before his demise, Mal Suleman handed over his 2 farmlands and his grandchildren to Mal Rabiu in trust. That when the children grow up, Mal Rabiu will then handover the 2 farmlands to them. Mal Rabiu agreed. The appellant is one of the grandchildren of Mal Suleman while the respondent is the son of Mal Rabiu. Not long after, Mal Suleman died. Mal Rabiu kept the trust. After some years, Mal Rabiu fell sick, he gathered his children and his brothers and informed them about the trust. That the 2 farmlands belong to the appellant and his brothers. He directed that the farmlands be given to them if he died. And he did. Failure to hand over the trust ignited this suit.

​At the trial Court, the plaintiff/appellant presented his witnesses and closed his case. The defendant/respondent on the other hand chose to take oath. The trial Judge overruled him on this and he appealed to the High Court. His appeal was not successful. The trial Court gave judgment on the testimony of witnesses presented by the plaintiff. It declared the ownership of the farmlands to the plaintiff/appellant. The defendant did not adduce evidence in his favour. See pages 136–137 of the record of appeal.

The defendant was not satisfied with the decision of the Upper Sharia Court Dutse, he therefore appealed to the Sharia Court of Appeal, Jigawa State (hereinafter lower Court).

​The full Court of the Sharia Court of Appeal decided that both Upper Sharia Court Dutse and Miga Sharia Court have no jurisdiction to entertain the matter. They sent the matter for retrial before Upper Sharia Court Gagarawa. Reason being that earlier, the matter was before the Sharia Court of Appeal and it sent the matter for retrial before Higher Sharia Court Jahun. Instead of going to Jahun, the plaintiff instituted the matter a fresh at Miga Sharia Court. The reason for the retrial order from the lower Court was not made on merit but for disobeying their order made in Suit No. SCA/JG/CVA/80/2012 on 13th December, 2013. See pages 142–143 of the record.

​The plaintiff got judgment at the Upper Sharia Court, Dutse. The defendant appealed to the Sharia Court of Appeal. Dissatisfied with the decision of the lower Court, the plaintiff appealed to this Court. His Notice of Appeal was filed at the lower Court on 31st January, 2020. In all, he has 4 grounds of appeal. The grounds are;
1. The learned Kadis erred in law when they assumed jurisdiction on a matter which has already been determined by a Court of competent jurisdiction.
2. The learned Kadis erred in law when they assumed jurisdiction over a matter which is outside their Constitutional jurisdiction.
3. The learned Kadis erred in law when they concluded that the retrial order they gave in Appeal No. SCA/JG/VCA/80/2012 on 13/12/2013 in respect of this case has not been obeyed and complied with.
4. The learned Kadis erred in law when they set aside the judgment of the Upper Sharia Court Dutse based on the issue that the said Upper Sharia Court Dutse lacks jurisdiction to hear the matter.
Particulars were provided.

The appellant filed his brief of argument on 30/08/2021. The respondent filed his on 8/11/2021. Appellant filed reply brief on 18/02/2022. All briefs were deemed properly filed and served on 21/02/22. The record of appeal was deemed properly compiled and transmitted on 12/08/2021.

The brief of the appellant was settled by M. A. Kofa Esq of learned counsel. He formulated 3 issues for the determination of the appeal. They are;
1. Whether the lower Court has the power to entertain claims of possession of land and/or title to land simpliciter. Distilled from Ground 2.
2. Whether the lower Court has power to oust the jurisdiction of the trial Court, as the issue of jurisdiction has been determined by the Court of coordinate jurisdiction. Distilled from Ground 1.
3. Whether the retrial order made by the lower Court on 13/12/2013 in Appeal No. SCA/JG/VC/80/2012, was followed. Distilled from Grounds 3 and 4.

​The learned counsel to the respondent Y. Salisu Esq. settled the brief of the respondent. He formulated 2 issues for the determination of the appeal as follows;
1. Whether the appellant’s claim at the trial Court was for ownership and declaration of title to land to deprive the lower Court from assuming jurisdiction.
2. Whether the lower Court was right in setting aside decision of the trial Court.

I will treat this appeal with the issues donated by the appellant.

On Issue No. 1, the learned counsel to the appellant submitted on jurisdiction. That it is the blood that gives life to the survival of an action in Court. That without jurisdiction, the action will be like an animal that has been drained of its blood. He relied on UTIH & ORS Vs. ONOYIVWE & ORS (1991) LPELR–3436 (SC). On condition precedent to the exercise of jurisdiction, he relied on ZAKARI Vs. NIGERIAN ARMY & ANR (2015) 5 MJSC (Pt. 111) 122 AT 136 and ELELU-HABEEB Vs. A G FEDERATION (2012) ALL FWLR (Pt. 629) 1011 AT 1046-1047.

Learned counsel submitted further that the jurisdiction of the lower Court is provided in Section 277(2) of the 1999 Constitution (as amended). He relied on ASAYAYAH Vs. ASAYAYAH (2014) 2 SQLR (Pt. 1) 51 AT 67-68 on the propriety of the Court adjudicating on matters outside jurisdiction. Counsel submitted that to determine the jurisdiction of the Court, the claim of the plaintiff before the Court matters, MAGAJI Vs. DATTIJO (2007) ALL FWLR (Pt. 365) 599 AT 605. He continued that the claim of the plaintiff/appellant at the trial Court was ownership and not inheritance. He referred to page 58 of the record where the plaintiff‘s counsel was asked by the trial Court;

Court to the plaintiff’s counsel: what is your claim?
Answer: we are suing Mal Adamu Dangata before this Court to recover from him our two farmlands which are:
1. Gonar Zogale, which has the following boundaries;
a. East Mal Adamu’s farmland
b. West Mal Bilya’s farmland
c. South Mal Sule’s farmland
d. North Quarry.
2. Gonar Jigawa, which has the following boundaries;
a. East Burtali (grazing reserve)
b. West Adiyya’s farmland
c. South yau’s farmland
d. North Audi’s farmland.
That the farmlands are at Limamai, Miga Local Government Area.

He urged the Court to hold that the lower Court has no jurisdiction on the matter.

​On Issue No. 2, the learned appellant’s counsel submitted that the lower Court has no jurisdiction to determine the jurisdiction of the trial Court. That the jurisdiction of the lower Court as provided by Section 277(2) of the Constitution did not include the power to determine the jurisdiction of the trial Court.

As regards whether a party can waive his rights regarding the jurisdiction of a Court, counsel relied on AKANIYENE & ORS Vs. ETIM (2012) LPELR–9792 (CA) to the effect that a litigant can waive that of procedural law but not that of substantive law. He continued that in determining the jurisdiction of the trial Court, the lower Court had gone into issues of substantive law which it has no jurisdiction so to do. That a Court has no power to increase its jurisdiction, ASAYAYAH Vs. ASAYAYAH (supra).

​Counsel drew the attention of the Court to the provision of Section 272 of the Constitution and submitted that the High Court has jurisdiction to determine the jurisdiction of the trial Court. That in fact it even did when the defendant/respondent filed Suit NO. JDU/MT/97/2016 in the High Court and obtained an interim order restraining the trial Court from proceeding until after the determination of the interlocutory appeal filed before it. See page 75 of the record. That the High Court dismissed the interlocutory appeal on 19/09/2016 and allowed the trial Court to proceed with hearing to conclusion. The trial Court did. See pages 76–78.

The learned counsel to the appellant further submitted since the High Court had ruled that the trial Court had jurisdiction, the lower Court ought not make a contrary pronouncement to review the same. He referred to Section 240 of the Constitution. That since the ruling of the High Court had not been appealed against, it remains valid and binding upon the parties, DURBAR HOTEL PLC Vs. ITYOUGH (2017) ALL FWLR (Pt. 883) 1459 AT 1473. Counsel urged the Court not disturb the finding of the trial Court since there is no appeal on the jurisdiction of the trial Court.

Finally, on Issue No. 3, the learned counsel submitted that the order of the lower Court in Appeal No. SCA/JG/VC/80/2012 was obeyed. That they were before the Higher Sharia Court Jahun for the re-trial, but the suit was struck out. That the plaintiff has the liberty to apply for relist or file a fresh suit. He relied on AMAH Vs. NWANKWO (2008) ALL FWLR (Pt. 411) 879 AT 902 and IBRAHIM Vs. OSHOMA (1991) 6 NWLR (Pt. 197) 286 AT 297. Counsel urged the Court to allow the appeal.

The learned counsel to the respondent in his response submitted in agreement with the appellant that the plaintiff’s claim is one of the most important things that confers jurisdiction to the Court. That for the Court to determine a matter, it must be guided by the claim before it. See GAFAR Vs. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375, MUNINGA Vs. MUNINGA (1997) 11 NWLR (Pt. 527) 1 and MUSA DADE Vs. GAMBO NA HAUWA (2006) 3 SLR (Pt. 111) 26. He continued that from the record before the trial Court, the claim of the appellant was not a determination of ownership or declaration of title to land but for distribution of the estate of his late grandfather. That the claim was rooted in inheritance and both the trial Court and the lower Court decided on inheritance. See pages 42 and 63 of the record respectively. To buttress his points, he referred to the submission of the appellant’s counsel on page 71 and the ruling of the trial Court on pages 74–75 of the record. Counsel made repeated submissions that you cannot approbate and reprobate at the same time, AJIDE Vs. KELANI (1985) LPELR–302, EDEBIRI Vs. EDEBIRI (1997) LPELR–1004 (SC) and FIDELITY BANK Vs. TABORA & ORS (2018) LPELR–44504 (SC).

The learned counsel made submission in the alternative, to the effect that where the lower Court is found not to have jurisdiction to entertain the respondent’s appeal, he urged the Court to remit the case for retrial before a Court of competent jurisdiction at appellate level. Counsel relied on KATSIRA Vs. YALLIYA (2014) LPELR–23824 (CA) where this Court remitted the case to the Hon Chief Judge to be reassigned for re-hearing by the appellate division of the High Court.

Counsel made submissions regarding the power of the Hon Grand Kadi to transfer cases from one Sharia Court to another. He continued that where a superior Court gives an order, parties are duty bound to obey unless the order is varied or set aside on appeal. That a party in disobedience of a Court order cannot be heard while still in disobedience, BARR ORKERJEV Vs. IYORTYOM (2014) LPELR–23000 (SC).

The learned counsel submitted further that the lower Court ordered retrial before Higher Sharia Court Jahun in Appeal No. SCA/JG/CVA/80/2012 on the 13th December, 2013 page 142 of the record. That in disobedience, the appellant went to Miga Sharia Court which transferred the matter to Upper Sharia Court Dutse. Counsel concluded that, that was a clear violation of the order of the lower Court and a case of forum shopping by the appellant. That the lower Court was right in sending the matter to Upper Sharia Court Gagarawa for retrial.

On the issue regarding withdrawal of the suit from Higher Sharia Court Jahun to Miga Sharia Court, learned counsel submitted that such record did not exist. That the record of Upper Sharia Court Dutse was conducted in violation of the order of the Sharia Court of Appeal and therefore null, void and of no effect whatsoever. He urged the Court to affirm the order of retrial made by the lower Court or alternatively, refer the matter to the Hon Chief Judge for re-hearing the appeal at the High Court.

RESOLUTION OF ISSUES.
The reply brief filed by the appellant in my view contravened the purpose for which it is filed. The purpose of a reply brief in appeals had been stated and restated in several decisions of this Court and the Apex Court including the case of OCHEMAJE Vs. THE STATE (2008) 15 NWLR (Pt. 1109) 57, where the vastly proficient Tobi, JSC set out the purpose of a reply brief in the following manner; “A reply brief is not one for repetition of the arguments in the appellant’s brief. It is not a forum for emphasizing the averments in the appellant’s brief. On the contrary, a reply brief, as the name implies replies to the respondent’s brief. In the exercise, an appellant need not repeat the issue joined either by emphasis or by expatiation.” Absolutely nothing more can be said on the purpose of a reply brief than this very weighty and final authority. See ADEBIYI Vs. SORNMADE (2004) ALL FWLR (Pt. 239) 933, NWALI Vs. STATE (1991) 3 NWLR (Pt. 182) 663, OJUKWU Vs. OBASANJO (2004) 7 SC (Pt.1) 117.

I have looked at the reply brief filed by the appellant and I hold the view that he did not raise anything new. The reply brief is therefore discountenanced.

​The Sharia Court of Appeal, Jigawa State in its wisdom set aside the decision of Upper Sharia Court, Dutse on the 28/01/2020. The reason given was the failure of the parties to obey the order for retrial it gave before Higher Sharia Court, Jahun. Pages 142–143 of the record. In its words;
“Therefore, we are of the opinion that U.S.C. Dutse has no jurisdiction to entertain this matter. Also the Miga Court has no jurisdiction to entertain the new matter. Also all the parties to this case has no right to bring it as a new matter, without informing this Court for further order.
Based on this important aspect pertaining to jurisdiction, this Court will not talk about the other grounds of the appeal as it will amount to waste of time. Based on the reasons stated above, we hereby set aside the judgment of the lower Court (U.S.C Dutse) with all the orders it made. And we hereby order that this case be taken to U.S.C Gagarawa for retrial from the beginning to the end with the observance to the mistake made by the lower Court (by way of changing the standing order we gave) on the 13/12/2013 to H.S.C. Jahun.” They relied on AYINDE ADEYEMO Vs. OKUNOLA AROKOPO (1988) 2 NWLR (Pt. 79) 703 AT 711.
​From the outset, let me start with the decision relied upon by the lower Court, AYINDE ADEYEMO Vs. OKUNOLA AROKOPO (supra). The Supreme Court inter alia held that;
“If nothing can be gained by an order for a new trial, an appeal Court will refrain from making the order; see OKEOWO & 2 ORS Vs. MIGLIORE & 3 ORS (1979) 11 SC 138 AT 201.”
This pronouncement ought to have relevance in the decision the lower Court should take in the circumstance of this case. From the record, an objection was raised by the defendant’s counsel at the trial Court on jurisdiction. The trial Court ruled it has jurisdiction to hear and determine the matter. See pages 73–75 of the record. The defendant was still dissatisfied, he went to the High Court on appeal. On the 19th of September 2016, the High Court ruled that the trial Court has jurisdiction to hear and determine the matter. Still dissatisfied, the defendant allegedly appealed against that ruling to this Court at Kaduna. See page 76 of the record.
​On the 25th November, 2016 sitting resumed at the trial Court with the consent of both learned counsel to the plaintiff and the defendant, page 78 of the record. At the end of the day, the trial Court gave a considered judgment at pages 132–137 wherein it gave judgment in favour of the plaintiff.
The defendant was dissatisfied with the decision of the Upper Sharia Court Dutse, he thus appealed to the Sharia Court of Appeal. The Sharia Court of Appeal set aside the decision of the Upper Sharia Court Dutse and ordered retrial before Upper Sharia Court Gagarawa. Now, what is the justification of retrial before Upper Sharia Court Gagarawa?
In my view, the order for retrial was one that ought not be given. The lower Court gave a unilateral order that it ought not give. An order given suo motu. The Court should have heard the parties before giving the order. The record had indicated that the lower Court was aware that the matter was before Higher Sharia Court Jahun and had been before the Court for some time without progress and that led to the matter being struck out. In the opinion of the lower Court, that should have been reported. That is not for any of the parties to institute another suit.
This Court has inter alia held in HABIB BANK NIG LTD Vs. LODIGIANI (NIG) LTD (2010) LPELR-4428 (CA), that an order striking out a matter, gives an opportunity to the party who instituted the action to apply to the Court for an order relisting the same, or to file a fresh action. Striking out a suit means removal of the suit from the cause list of a Court.
Higher Sharia Court Jahun having struck out the suit sent to it for retrial has left the parties on their own. Certainly, only the party seeking for his rights will return to Court and he did. He went to where in his estimation, he will get justice. Miga Sharia Court would do, in his estimation. The Court however for want of jurisdiction transferred the matter to Upper Sharia Court Dutse where the matter was heard in conclusion.
Again in ADEYEMO Vs. AROKOPO (supra), the apex Court held that, “An order of retrial is proper where the trial Court failed to resolve vital conflicting evidence on important issues”. See ONYEMA OKE Vs. AMOS EKE (1982) 12 SC 218 AT 237. It is not on record that the Upper Sharia Court Dutse had failed to resolve vital conflicting evidence on important issues before it. What is on record is that the Court heard all the witnesses of the plaintiff. The defendant had no witness or presented none. The Court therefore gave judgment to the plaintiff, page 136 of the record.
Let me add that since the High Court had pronounced that the trial Court has jurisdiction to try the matter rightly or wrongly, then it will amount to sitting on appeal against the decision of the High Court for the Sharia Court of Appeal to oust the decision of the trial Court and order retrial before another Court of coordinate jurisdiction.

In SUGA Vs. SUGA (2017) LPELR–43092 (CA), this Court considered issue of jurisdiction of the Sharia Court of Appeal. It opined that basically, it is the plaintiff’s claim rather than the defendant’s defence or counter-claim at the trial Court that determines the jurisdiction of the said Court. See TUKUR Vs. GOVERNMENT Of GONGOLA STATE (1989) 9 SCNJ 1; ENGINEER YALAJU-AMAYE Vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS & ORS. (1990) 6 SCNJ 149 and ADEYEMI Vs. OPEYORI (1976) 9-10 SC 31.

In this regard and at this point, it is obvious that the hard nut to be cracked in this appeal is whether the lower Court, (Sharia Court of Appeal) had jurisdiction over the instant appeal matter. It is thus good to know that this nut had been resoundingly cracked in various decisions of this Court to the resonating effect that, basically, once the issue in a matter on appeal is possession, ownership or title to land simpliciter, the jurisdiction of the Sharia Court of Appeal has been ousted. See ABUJA Vs. BIZI (1989) 5 NWLR (Pt.11) 120; UMARU ALHAJI GARBA Vs. ADAMU DOGON YARO (1991) 1 NWLR (Pt. 165) 102. Indeed, the position of this Court in this regard has been upheld by the Supreme Court in various judgments. See H. AHMADU USMAN Vs. M. SIDI UMARU (1992) 7 NWLR (Pt.254) 377, (1992) 7 SCNJ (Pt. II) 388.

In order to appreciate and fully understand the provision of Section 277 (2) (c) of the 1999 Constitution as amended, where succession or inheritance has been made part of the jurisdiction of the Sharia Court of Appeal, it is apposite to reproduce the relevant/requisite Section and Sub-section accordingly. It provides and I quote:
“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 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 – 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.”
In FARANSI Vs. NOMA (2007) 10 NWLR (Pt. 1041) 21, Sanusi, JCA (as he then was) later JSC explained the jurisdiction of the Sharia Court of Appeal thus:
“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 provision of S. 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. See the case of GARBA Vs. DOGONYARO (1991) 1 NWLR (Pt. 165) 102; USMAN Vs. KAREEM (1995) 2 NWLR (Pt. 379) 537; MAGAJI Vs. MATARI (2000) 8 NWLR (Pt. 670) 72 and MAIDA Vs. MODU (2000) 4 NWLR (Pt. 651) 99.”
​Sharia Court of Appeal, can only exercise jurisdiction in appellate matters brought before it on matters specified in Section 277 of the 1999 Constitution as amended. It thus has jurisdiction and competence to entertain and determine appeals lodged before it on such matters or questions of Islamic personal law, as vested and which pertained to questions of wakf, gift, will or succession, where the donor, testator or deceased person is a Muslim. The jurisdiction so vested is circumscribed, compartmentalized and confined within the ambit of the constitutional provisional stipulation. Outside and beyond the specified questions/matters, the Sharia Court of Appeal is divested from exercising jurisdiction over such matters. These include matters of pure contractual relationship, that is sale of properties, movable or immovable, title, possession and ownership of a farmland, piece or parcel of land and structures thereon. This is more so, where the claims are devoid of or unconnected with Islamic personal law contents or elements as enumerated under the requisite constitutional provisions.

See ABUJA Vs. BIZI (1989) 5 NWLR (Pt. 111) 120; GARBA Vs. DOGON-YARO (1991) 1 NWLR (Pt. 165) 102; USMAN Vs. KAREEM (1995) 2 NWLR (Pt.279) 537.

Now, Section 272(1) and (2) of the 1999 Constitution provides for the jurisdiction of the High Court of a State as follows:
“272(1) Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. (2) The reference to civil and criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”

​It is not in dispute that both the High Court and the Sharia Court of Appeal are creations of the 1999 Constitution, Section 270 (1) and Section 275 (1) respectively. I have reproduced the jurisdiction of both Courts supra. From the jurisdiction bestowed on them by the Constitution, none has been vested with supervisory jurisdiction over the other. Therefore, the Sharia Court of Appeal Jigawa State was in error when it assumed jurisdiction in this matter for two reasons;
1. The lower Court was aware of the subject matter of the suit. On page 141 of the record, the lower Court observed;
“This suit emanated as a result of transfer from Miga Sharia Court, where Mayau (respondent) sues Adamu Dangata (appellant) asking for 2 farms that are situate in Limamai belonging to his maternal grandfather named Suleman. The appellant in the lower Court (Mayau) was claiming that the farms were giving out by Suleman as trust in the hands of M. Rabiu who is the father of the defendant i.e. the appellant in this Court.
After the death of M. Rabiu, the farms bestowed in the hand of Adamu Dangata. They said that Adamu should give them their farms, but he refused.”
In my view, above is enough for the lower Court to understand whether or not it has jurisdiction in the matter. If it has no jurisdiction, then any pronouncement made except to decline jurisdiction is void.
Let me further observe that this Court in SAFETI & ORS Vs. SAFETI & ANR (2006) LPELR–7579 (CA) enumerated reasons for setting aside decision of a lower Court on appeal under Islamic Law. They are;
(1) Where it is in conflict with any provision of the Holy Quran.
(2) Where it is in conflict with the provision of any authentic Tradition of the Prophet (PBUH).
(3) Where it is in direct conflict with ljma.
(4) Where it conflicts with Qiyas.
(5) Where it is against popular view of the official Mazhab applicable in the area of jurisdiction or against sound reasoning.
(6) Where the Judge lacks jurisdiction.
(7) Where it was obtained under fraud, deceit etc.
Per I. T. Muhammad, JCA (as he then was) now CJN.
​It is now clear that the lower Court has no jurisdiction in the subject matter of the suit being one outside Islamic Personal Law. The lower Court having assumed jurisdiction went counter to the principles of Sharia by breaching the circumstances when judgment will be set aside under Islamic Law.
Lastly, from the record, the decision of the High Court that vested on the Upper Sharia Court Dutse jurisdiction on this matter had not been appealed against. Thus, is trite that a judgment not appealed against and or not set aside by a higher Court is a valid and subsisting judgment. Per Katsina-Alu, JSC (as he then was) later CJN in NWOKEDI & ORS Vs. OKUGO & ORS (2002) LPELR-2123 (SC).
2. Not too long ago, the Supreme Court in NCC Vs. MOTOPHONE LTD & ANR (2019) LPELR–47401 (SC) pronounced on raising issue suo motu without giving liberty to counsel to address on the issue raised. It said; “It is also the law that a Court should not take up a point suo motu and decide the matter before it on that point without hearing the parties. Per Edozie, JSC in COOKEY Vs. FOMBO & ANOR (2005) LPELR-895 (SC).
This Court also on the same point inter alia in NIGERIAN ARMY Vs. ABAYOMI (2019) LPELR–47084 (CA) held: “The law on a Court raising an issue suo motu is settled. It is trite that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice, SODIPO Vs. LEMMINKAINEN OY (1986) 1 NWLR (Pt. 15) 220, IJEBU ODE LOCAL GOVERNMENT Vs. ADEDEJI BALOGUN & CO LTD (1991) 1 NWLR (Pt 166) 136 and AFRICA CONTINENTAL BANK PLC Vs. LOSADA (NIG) LTD (1995) 7 NWLR (Pt. 405) 26. Where a Court, however, raises the issue suo motu, it must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised, OKEBOLA Vs. MOLAKE (1975) 12 SC 61, KUTI Vs. BALOGUN (1978) 1 SC 53, GRAHAM Vs. ESUMAI (1984) 11 SC 123, BAMGBOYE Vs. OLAREWAJU (1991) 4 NWLR (Pt. 184) 132 and UNION BANK OF NIGERIA PLC Vs. AWMAR PROPERTIES LTD (2018) LPELR 44376 (SC). Where the Court denies the parties the opportunity to address on the issue before deciding same and the issue is not an irrelevant one, but one, the resolution of which has a substantial and direct effect on its final decision, the Court will be held to have compromised the right of the parties to fair hearing and the judgment is liable to be set aside as having occasioned a miscarriage of justice, SHITTA-BEY Vs. FEDERAL PUBLIC SERVICE COMMISSION (supra), EBBA Vs. OGODO (1984) SCNLR 372, SAUDE Vs. ABDULLAHI (supra), NWOKORO Vs. ONUMA (1990) 3 NWLR (Pt. 136) 22, KRAUS THOMPSON ORGANIZATION LTD Vs. UNIVERSITY OF CALABAR (supra), TOTAL ENGINEERING SERVICES TEAM INC Vs. CHEVRON NIGERIA LTD (supra) and WAGBATSOMA Vs. FEDERAL REPUBLIC OF NIGERIA (supra). A read through the judgment, in the instant case, shows that the decision of the lower Court on the issue raised suo motu was the sole ground upon which it granted the claims of the Respondent. The judgment thus occasioned a miscarriage of justice and it is liable to be set aside “.
​I quoted the decision supra extensively because I hold the view that if the lower Court had availed parties the opportunity, counsel would have informed the Court of the pronouncement of the High Court that vest jurisdiction on the Upper Sharia Court Dutse to adjudication on the matter to conclusion and it did. For the lower Court now to oust the jurisdiction of the Upper Sharia Court Dutse and vest the same on Upper Sharia Court Gagarawa is an order given without jurisdiction. As it amounted to sitting on appeal over the decision of the High Court which the Sharia Court of Appeal does not have the jurisdiction so to do.
In sum, I hold as follows;
1. The Sharia Court of Appeal, Jigawa State has no jurisdiction on matters outside those donated to it by the Constitution in Section 277. The issue before the Court not being a question of Islamic Personal Law is outside its jurisdiction. See FARANSI Vs. NOMA (supra).
2. The order made by the Sharia Court of Appeal, Jigawa State setting aside the decision of Upper Sharia Court Dutse in this suit was made without jurisdiction and therefore void. See SAFETI Vs. SAFETI (supra).
3. The judgment of Upper Sharia Court Dutse is still subsisting and binding on the parties. See NWOKEDI Vs. OKUGO (supra).

Appeal allowed. The decision of the lower Court sending the matter for retrial before Upper Sharia Court, Gagarawa is vacated.

The decision of Upper Sharia Court Dutse is subsisting and binding on the parties.
N50,000 to the appellant against the respondent.

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 reading in draft, the lead judgment of my learned brother U. A. MUSALE JCA. I agree with the reasoning and conclusion that the appeal is allowed. I abide by all the consequential orders in the lead judgment.

Appearances:

M. A. Kofa, Esq., with him, M. A. Mu’azu, Esq., A. I. Rabi’atu, Esq. and U. D. Farouq, Esq. For Appellant(s)

A. G. Wakil, Esq., with him, L. B. Adamu, Esq., B. Ibrahim, Esq., Yusuf Salisu, Esq., Uzairu Aliyu, Esq. and T. Apine, Esq. For Respondent(s)