MOHAMMED & ORS v. ABDULLAHI
(2022)LCN/17114(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, June 16, 2022
CA/G/84/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. MOHAMMED MOHAMMED 2. MOHAMMED SHAM’UN 3. SAAD ABUBAKAR APPELANT(S)
And
ADAMU ABDULLAHI RESPONDENT(S)
RATIO
THE JURISDICTION OF THE STATE HIGH COURT
The jurisdiction of the State High Court is provided for under Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It states:
“272. (1) Subject to the provisions 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.”
While the jurisdiction of the Sharia Court of Appeal is spelt out under Section 277 of the Constitution (supra) inter alia as follows:
“277. (1) The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by 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 waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;” PER SANKEY, J.C.A.
THE JURISDICTION OF THE SHARIA COURT OF APPEAL TO DETERMINE ANY QUESTION OF ISLAMIC PERSONAL LAW REGARDING MARRIAGE
There is no doubt that the Sharia Court of Appeal, by Section 277(1) & (2) (c) of the Constitution (supra), has the jurisdictional competence to 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 claim of the Respondent arose from the Judgment of the trial UAC where judgment was delivered manifestly applying Islamic Personal Law in respect of the claim for compensation for a building erected on land which the Appellants inherited from Hajiya Tani, in the belief that it had been gifted to him by the deceased.
Thus, even though the Appellants in their appeal raised the issue of jurisdiction of the trial Court on various grounds, there is no doubt that in view of the cause of action before the trial Court which determines jurisdiction, the lower Court was right when it held that the Sharia Court of Appeal was better suited to hear and determine all the issues raised in the grounds of appeal which include the issue of jurisdiction based on the principle of stare decisis and locus standi, as well as the weight of evidence in proof of the claim.
With profound respect to learned Counsel for the Appellants, it does not make proper sense for the State High Court, which can only hear a part of the appeal, to take the appeal, to wit: the issue of jurisdiction, and not the other part, to wit: the merit of the appeal which touches on Islamic principles of law, specifically in respect of the payment of compensation for a building erected by the Respondent on property inherited via Islamic Personal Law by the Appellants. Clearly, all the issues in the appeal can only be holistically determined by the Sharia Court of Appeal by virtue of Section 277 of the Constitution (supra). PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Gombe State sitting in its appellate jurisdiction, delivered on 16th July, 2020, Coram: H.A. Mohammed, J. and H.A. Haruna J.
The Appellants (as Defendants) had filed an appeal before the lower Court challenging the Judgment of the Upper Area Court 2 Gombe which was given in favour of the Respondent (as Plaintiff). The trial Upper Area Court had granted the claim of the Respondent wherein the Appellants were ordered to pay compensation to the Respondent for the value of the building erected by him on property whose title had before then, been declared by an Area Court, and affirmed by the High Court and Court of Appeal, to belong to the Appellants. Before the appeal was heard by the lower Court, the Respondent filed a motion on notice wherein he sought an order transferring the Appeal to the Sharia Court of Appeal on the ground that the issues involved relate to Islamic personal law, which was also applied in the determination of the case at the trial Upper Area Court.
After hearing the parties through their respective Counsel who, in arguing the motion, had filed written addresses, the lower Court granted the application and made an order transferring the appeal to be heard by the Sharia Court of Appeal, Gombe. Disgruntled by this order, the Appellant has filed this appeal complaining on two grounds.
It may not be out of place to set out in brief the checkered history of the case which ultimately led to this appeal for a better understanding. It is well to also state that the facts of the case are not in dispute. The Respondent was gifted the disputed property, the subject matter of this appeal, by Hajiya Tani during her lifetime. However, he did not take possession of the property until after she died. Upon doing so, he demolished the building which was already on the property and erected a storey building. A dispute arose between the Appellants, who were heirs to Hajiya Tani, and the Respondent over the property. Whereupon the Respondent filed a suit against the Appellants at the Area Court Bogo asking it to confirm the gift of the property to him by Hajiya Tani. In its judgment, the trial Area Court conferred ownership of the property on him. Aggrieved, the Appellants appealed to the Upper Area Court 1 Gombe, which set aside the decision of the Area Court Bogo and awarded the disputed property to the Appellants. On appeal by the Respondent, the Sharia Court of Appeal Gombe affirmed the decision of the Upper Area Court 1. On a further appeal by the Respondent to the Court of Appeal Jos Division, the decision of the Sharia Court of appeal was re-affirmed.
The Respondent still filed an appeal to the Supreme Court, but subsequently abandoned the appeal. Rather, he proceeded to file a fresh suit before the Upper Area Court 2 Gombe seeking to be paid compensation for the building which he had erected on the property. Upon hearing the suit, the trial Upper Area Court 2 gave Judgment essentially in favour of the Respondent ordering the Appellants to pay compensation for the building erected by the Respondent on the Appellants’ property, or in the alternative, for the Respondent to pay a certain sum as value for the land of the Appellants upon which he had erected a building. It is against this decision that the Appellants appealed to the lower Court, whereupon the Respondent applied that the appeal be transferred to the Sharia Court of Appeal on the ground that it was decided based on Islamic principles of law. It is in dissatisfaction of the ruling of the lower Court granting this application that the Appellants have now filed this appeal.
At the hearing of the appeal on 31-03-2022, learned Counsel for the Appellants, A.N. Joshua Esq., adopted the Appellants’ brief of argument filed on 03-09-21, deemed filed on 25-01-22 and settled by the same Counsel, in urging the Court to allow the appeal and set aside the ruling of the lower Court. In opposing the appeal, learned Counsel for the Respondent, A. Dauda Esq., adopted the Respondent’s brief of argument filed on 11-02-22 and settled by the same Counsel, in urging the Court to dismiss the appeal.
Learned Counsel for the Appellants gleaned the following two issues for determination from the two grounds of appeal:
1. “Whether or not the relieves sought by the Respondent in the trial Area Court is covered under Section 277 of the Constitution to warrant the transfer of the Appellants’ appeal from the State High Court to State Shariah Court of Appeal? (Ground one)
2. Whether or not the lower Court was right to hold that “it will better serve the interest of justice if the matter is decided by a Shariah Court of Appeal of the State”, where the trial Area Court decision has brushed aside a subsisting Court of Appeal decision? (Ground 2)
Learned Counsel for the Respondent in the Respondent’s brief of argument framed one sole issue for determination, thus:
“Whether or not on account of the ruling of the High Court of Justice Gombe State sitting in its appellate jurisdiction dated 16th day of July, 2020 in suit no. GM/90A/2019 when it transferred the appeal before it to the Shariah Court of Appeal, was right or wrong.”
After carefully perusing the facts of the case leading to the ruling of the lower Court, vis-à-vis the grounds of appeal, I am of the view that the following issue will serve to resolve the complaints contained in the grounds of appeal:
“Whether or not, in the light of the provisions in Sections 272 and 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which circumscribe and delineate the jurisdiction of the Sharia Court of Appeal and that of the State High Court, the lower Court was right when it made an order transferring the Appeal to the Sharia Court of Appeal?”
ARGUMENTS
The essence of the submissions of the Appellants through their Counsel is that the reliefs sought by the Respondent at the trial Upper Area Court does not fall under principles of Islamic Personal Law as prescribed under Section 277 of the Constitution (supra) to warrant the transfer of the appeal to the Sharia Court of Appeal by the lower Court. Learned Counsel for the Appellants submits that Islamic principles of law applicable to gift, waqf, etc., were rightly applied in determining the previous suit filed by the Respondent and the appeals arising therefrom when he claimed and tried to establish that the property was bequeathed to him as a gift. He sought to distinguish the Respondent’s previous claim to the property in dispute by way of gift, which was determined based on Islamic principles of law by the Area Court Bogo, whose decision was set aside by the Upper Area Court 1 Gombe, Sharia Court of Appeal Gombe and the Court of Appeal, Jos Division, Appeal No. CA/J/127S/2013 delivered on 2nd July, 2015.
Counsel submits that the trial Upper Area Court 1 Gombe, by granting the claim of the Respondent for the payment of compensation for the building erected on a property for which the Court of Appeal, and other Courts below it, had found that the gift of the property to the Respondent had not been established under Sharia Law, acted in defiance of the principle of stare decisis. He contends that the Respondent, having not proved the validity of his purported gift by Hajiya Tani in a previous suit, the reliefs sought in his subsequent claim for compensation does not come within Section 277 of the Constitution (as amended) which defines the jurisdiction of the Sharia Court of Appeal of a State. Thus, that the appeal to the Gombe State High Court, id est, the lower Court, from the decision of the trial Upper Area Court was proper; while the transfer of the appeal to the Sharia Court of Appeal is unwarranted. Reliance is also placed on Sections 272 and 274 of the Constitution (as amended), as well as Order 8 Rule 2 of the Gombe State Practice Directions, 2012.
Furthermore, Counsel submits that the Respondent’s claim at the trial Upper Area Court 2 was simply for compensation for the value of the building he developed on the Appellants’ property which he had earlier claimed as a gift given to him by Hajiya Tani, which claim he fought and lost right to the Court of Appeal. That despite this, the trial Upper Area Court found in favour of the Respondent and ordered the Appellants to pay him compensation for the value of the building. It is this order that the Appellants challenged before the lower Court which Counsel contends has no Islamic connotation to warrant the transfer of the appeal to the Sharia Court of Appeal.
In addition, Counsel submits that the appeal before the lower Court borders mainly on jurisdiction, to wit: Whether by virtue of the Judgment passed by a superior Court on the subject matter, the trial Upper Area Court 2 Gombe has jurisdiction to entertain the matter and make consequential order against the decision of the Court of Appeal? He submits that the lower Court has jurisdiction to determine this. He also submits that contrary to the finding of the lower Court that “It will best serve the interest of justice if the case is tried by a State Sharia Court of Appeal”, the subject matter can be heard and determined by the State High Court and the claim as it cannot confer exclusive jurisdiction on the State Sharia Court of Appeal in view of Section 277 of the Constitution (as amended). Counsel finally urged the Court to allow the Appeal, set aside the Ruling of the lower Court and refer the matter back to the State High Court for adjudication.
In response, learned Counsel for the Respondent submits that the record of appeal discloses that, in the determination of the claim of the Respondent at the trial Upper Area Court, issues of Islamic Law principles were raised, canvassed and decided upon. That the claim of the Respondent was for payment of compensation for improvements on the land, the title of which was conferred on the Appellants. He argues that whereas under Sharia Law, both the Appellants and the Respondent have a right to assert the existence of such rights, it is recondite and novel under Common Law principles. He submits that competent Courts of law resorted to by the Respondent having set aside the gift and conferred title on the Appellants, the Respondent sought this remedy regarding the improvements he had made on the property of the Appellants. That the matter to be determined on appeal which was placed before the lower Court raises issues of gift and succession of the disputed property. Thus, that it is only the Sharia Court of Appeal that is better suited to settle issues relating to Islamic law. Counsel submits that hence the lower Court was right when it transferred the appeal to the Sharia Court of Appeal for determination. Counsel finally urges the Court to dismiss the appeal as lacking in merit.
RESOLUTION OF SOLE ISSUE FOR DETERMINATION
For the avoidance of any doubt or misperception, it must be clarified from the onset that the previous action between the Respondent, as Plaintiff, before the Area Court Bogo where he claimed the property for which he now seeks compensation, on the ground that it was gifted to him by Hajiya Tani, is not before this Court for adjudication, and so has little or no relevance to these proceedings. That decision was set aside on appeal by the Upper Area Court 1 Gombe, which decision was affirmed by the Sharia Court of Appeal and further affirmed by the Court of Appeal, Jos Division. However, the proceedings of those appellate Courts were placed before the lower Court and are contained in the record of appeal. Therein, they reveal that the issue of the validity of the gift to the Respondent was decided based on Islamic principles of law.
The purport of the decision of the Court of Appeal is that the Respondent herein did not prove before the trial Area Court Bogo that he fulfilled the conditions of gift, Waqf in Islamic law, to entitle him to judgment. The Court of Appeal therefore affirmed the Judgment of the Sharia Court of Appeal which had also affirmed the judgment of the Upper Area Court Gombe setting aside the judgment and order of the Area Court Bogo which had earlier confirmed the gift of the property to the Respondent.
The Respondent having lost in his venture to establish the validity of the gift to him of the property in dispute by Hajiya Tani under Islamic principles of law, decided to cut his losses and file a fresh suit before the Upper Area Court 2 Gombe. Therein, he sought for the payment of compensation for the building which he erected on the property confirmed to the Appellants, heirs of Hajiya Tani. After due consideration of the claim, the trial Upper Area Court 2 Gombe issued judgment awarding him compensation for the building he erected after due valuation of same. It gave an order that the Appellants could retain the building on the property for themselves if they paid the Respondent compensation. In the alternative, the Respondent could pay the Appellants the value of the property and take over the land upon which the building was erected. It is self-evident that the suit before the trial Upper Area Court 2, was once again determined based on Islamic principles of law. For ease of reference, the Hon. Judge of the trial UAC 2 Gombe held inter alia thus in his judgment at page 31 of the Record:
“I Alh. Zakariya Adamu Upper Area Court Judge II UAC II Gombe, this Court agreed with the claim of the plaintiff which he instituted before this Court seeking for the compensation of his new upstairs which he built at the time when Hajiya Tani (late) conferred title of the house to him by way of gift, he demolished the old clay building and constructed a new house, before the defendants later went to Court and this Court set aside the gift made to him and conferred title of the house to the defendants, and the defendants too have right to seek for the compensation of their old buildings in which judgments of the three Courts i.e. UAC 1 Gombe, Sharia Court of Appeal Gombe and the Court of Appeal Jos all conferred title to the defendants after the gift made by late Hajiya Tani did to the plaintiff where he demolished the old building and constructed a new one, an Upstairs in which this Court relied on the explanations and submissions earlier presented above couple with the findings of this Court and by relying with the rules of Islamic law, base on the explanations contained in the books of Alkawanimul Alfigahitul pg. 268-287 Chapter 11 which explained on Istihkaki (…) and the explanation in the book of Samarudeen pg. 405. So any body that pays compensation of one of the parties can take the house, as it stated above with reasons.” (Emphasis supplied)
From the above, it is apparent that the trial Upper Area Court determined the suit before it in line with Islamic Personal Law and Islamic principles of law contained in the books referred to, and not based on any statutes, Common Law principles or laws and rules applicable to civil suits in Area Courts.
Notwithstanding this, the argument of the Appellants is that their appeal to the lower Court, to wit: the Gombe State High Court, was based on the jurisdiction of the trial Court simpliciter to have entertained the claim of the Respondent in the first place, and that it was not based on the reasons for the decision based on Islamic law as given by the trial UAC 2 (as reproduced above).
For a proper consideration of this argument, I have examined 1st and 2nd Appellants’ grounds of appeal in their Notice of Appeal from the decision of the Upper Area Court 2 to the lower Court dated 04-10-19. At page 1 of the Record of Appeal, they complain thus:
“THAT THE DECISION OF THE TRIAL UPPER AREA COURT II IS AGAINST THE WEIGHT OF EVIDENCE ADDUCED.
THAT MORE GROUNDS OF APPEAL WILL BE FILED ON RECEIPT OF THE RECORD OF PROCEEDINGS.”
Subsequently, the 3rd Appellant filed a motion on notice seeking to be joined as an interested party to the appeal. The application was granted and so was the application for consolidation of his appeal with that of the 1st and 2nd Appellants. In the 3rd Appellant’s Notice of Appeal dated 29th January, 2020 (at pages 94-98 of the record), his grounds of appeal without their particulars, complain thus:
“GROUND 1
The Upper Area Court 2 erred in law where it assumed jurisdiction and entertain a matter and gave judgment over the subject matter pending before the Supreme Court, and in flagrance (sic) disobedience of Court of Appeal decision, which doing so occasioned miscarriage of justice.
GROUND 2
The Upper Area Court Judge misdirected himself by entertained a matter where the plaintiff/respondent lack Locus standi to sue in respect of that subject matter in flagrant disregard of Court of Appeal Decision where respondent lost his claim, which doing so occasion a miscarriage of justice.
GROUND 3
The Upper Area Court 2 misdirected himself by refusing to decline jurisdiction where the counsel to the defendant raised same, as it bothers (sic) on same parties, same subject matter, same claim, which doing so occasioned a miscarriage of justice.
GROUND 4
The trial Court misdirected himself where he wrongly hold that the building on the landed property belongs to the respondent and that the Appellant are to compensate him for building on their land or he should pay the Appellant the value of the land and take possession of the entire property against a subsisting decision of a competent Court, which doing so occasioned a miscarriage of justice.”
From the above, it is manifest that whereas grounds one, two and three constitute an attack on the jurisdiction of the trial Court to have heard and determined the case, Ground four wholly pertains to issues of fact. The issues of fact were determined by the trial Upper Area Court based on Islamic Personal Law applicable to compensation payable in respect of improvements on land the subject of inheritance under Islamic Law.
It is also noteworthy that this same issue of jurisdiction on similar grounds was raised at the trial UAC2 by the Appellants (page 3 of the record of appeal) wherein they asked the Court to dismiss the claim for lack of jurisdiction. The trial UAC2 heard arguments on the objection and after due consideration refused the application and dismissed same. Its ruling thereon is pertinent and portions of it (at pages 13-16 of the Record) are reproduced below:
“… the plaintiff Alh. Abdullahi Adamu owns the disputed house by way of gift in which late Hajiya Tani gave him, and conferred the said house to him, which later the situation turned to be a litigation which three Courts litigated i.e., UAC Gombe, Sharia Court of Appeal they all decided in the mater (sic), that this gift is invalid, which the plaintiff Alhaji Abdullahi Adamu did… of ownership, he demolished the old building… that is the reason of his claim which he is suing them seeking for compensation of the buildings he did before the Court confer title to the defendants…
Based on the finding made by this Court, the Court realized something as follows: – …
4. Anything a person owns something or land legally, or by way of litigation which the law agrees with it, like purchasing, gift or inheritance and he continued with taking care of that place or thing, later the said thing confirmed that he is not the owner by way of litigation, if he seeks his right of compensation as a cost of taking care of the thing, meaning the wealth he spent taking care of the house, this is in line with the decided case of MAL. AUDU KANO VS SARKING OKA C.A. 184 SARAUNIYA LAW REPORT SELECTED SHARIA CASE 2006 PRT III where a gift of land was made to somebody and he built a house inside he live there, later the children of the person who made the gift sue after the death of the owner of the land that made the gift, his children filed a case, the matter went to the Supreme Court, the Court conferred title of the land to the children of the deceased… At the end, the Supreme Court ordered the children to pay compensation of the building to the person whom the land was given to and they paid.
5. Anytime a person has a right over a thing like house, farmland or land or an animal at the hands of somebody, who is the owner of the thing, by way of legal way, before the law will take that thing and return it back to the rightful owner now. The former will not be ordered to pay and what he did or benefited from the property and he will not pay rent, as it was stated in the book of ALKAWANINUI ALFIGAHIYATUL at page 286-287 Chapter 11 which explained about the entitlement as follows: …
So also it is further explained in the book of SAMARUDDANI page 405 which stated as follows: – …
Against all the above explanations, coupled with the explanation of those books mentioned above, and the cited Supreme Court case, which this Court all relied (sic) on, this Court discountenance with the application of the defence counsel and the Court will continued (sic) to hear the case of plaintiff…” (Emphasis supplied)
The trial UAC2 went on to hear and determine the case on its merit and give judgment in favour of the Respondent. It is apparent that the Appellants did not appeal against these findings in the ruling; instead, they chose to file an appeal challenging the jurisdiction of the UAC 2 to hear the case at first instance. No doubt they were within their rights to do so, since an issue of jurisdiction can be raised by any means and before any Court, even for the first time on appeal.
The jurisdiction of the State High Court is provided for under Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It states:
“272. (1) Subject to the provisions 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.”
While the jurisdiction of the Sharia Court of Appeal is spelt out under Section 277 of the Constitution (supra) inter alia as follows:
“277. (1) The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by 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 waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;”
I agree with the lower Court that the pertinent question is whether the claim before the trial Upper Area Court falls within the purview of Section 277(1) and (2) of the Constitution (supra)? I have already reproduced the claim of the Respondent as Plaintiff before the trial UAC 2. In summary, the claim of the Respondent was for compensation to be paid to him for a building erected on property that he claimed as a gift under Islamic personal law but which gift was held to be invalid, the conditions for gifts under Islamic law having not been fulfilled. That being the case, the Respondent returned to the UAC seeking to be paid compensation for the building. The trial UAC 2, once again applying Islamic principles of law, found that he was entitled to his claim and awarded same. It is against this decision that the Appellants appealed on facts and on law. In particular, they contested the jurisdiction of the Upper Area Court to hear the suit. Upon the application of the Respondent, the lower Court transferred the appeal to be heard by the Sharia Court of Appeal.
There is no doubt that the Sharia Court of Appeal, by Section 277(1) & (2) (c) of the Constitution (supra), has the jurisdictional competence to 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 claim of the Respondent arose from the Judgment of the trial UAC where judgment was delivered manifestly applying Islamic Personal Law in respect of the claim for compensation for a building erected on land which the Appellants inherited from Hajiya Tani, in the belief that it had been gifted to him by the deceased.
Thus, even though the Appellants in their appeal raised the issue of jurisdiction of the trial Court on various grounds, there is no doubt that in view of the cause of action before the trial Court which determines jurisdiction, the lower Court was right when it held that the Sharia Court of Appeal was better suited to hear and determine all the issues raised in the grounds of appeal which include the issue of jurisdiction based on the principle of stare decisis and locus standi, as well as the weight of evidence in proof of the claim.
With profound respect to learned Counsel for the Appellants, it does not make proper sense for the State High Court, which can only hear a part of the appeal, to take the appeal, to wit: the issue of jurisdiction, and not the other part, to wit: the merit of the appeal which touches on Islamic principles of law, specifically in respect of the payment of compensation for a building erected by the Respondent on property inherited via Islamic Personal Law by the Appellants. Clearly, all the issues in the appeal can only be holistically determined by the Sharia Court of Appeal by virtue of Section 277 of the Constitution (supra).
The reasoning of the lower Court in granting the Respondent’s application to transfer the appeal arising from the judgment of the Upper Area Court 2 Gombe to the Sharia Court of Appeal Gombe, is contained at pages 227-230 of the record of appeal as follows:
“It is thus settled that it is the plaintiff’s case that determine the cause of action… In the instant case, it is clear that in consideration that the substantive case was decided up to the Supreme [Court] in accordance with Sharia Law… Evidently, all the issues decided by the various Courts on the substantive suit on the issue of the gift of the house was based on the Sharia Law principle, this is as per the record of proceeding before this Court. That being so, the subsequent proceedings by the record of proceedings of the Upper Area Court II at page 2 lines 3 to 20 being the claim of the applicant is in line with the said principle as the said reliefs is being sought for under the same Islamic Law Principle which gave the house to the respondent…
Since the substantive case was decided by the Sharia Court it wil be mimetically wrong for this Court to hear constitutional issues following from the decision of the Sharia Court. Had the substantive case been before the High Court, the judgment might not have been the same and therefore the relief cannot be seen to be the same as it cannot follow… It is our considered view that the justice of the case will be better served if this case is decided by the Sharia Court of Appeal Gombe State as they will only finished (sic) and unfinished business which they started.”
Based on all the above, I am of the view that the lower Court came to a right decision when it granted the application for the appeal to be heard by the Sharia Court of Appeal because same involves the consideration of Islamic principles of law governing the payment of compensation over property earlier gifted to the Respondent by Hajiya Tani (deceased), but later awarded to the Appellants by the Court based on the Islamic Personal Law of inheritance, as well as a challenge to jurisdiction. Thus, I resolve the sole issue for determination against the Appellants and in favour of the Respondent.
In the result, the appeal lacks merit. It fails and is dismissed.
Accordingly, I affirm the ruling of the High Court of Justice, Gombe State delivered in Appeal No. GM/90A/2019 delivered on 16th July, 2020, Coram: H.S. Mohammed, J. and M.A. Haruna, J.
I award the cost of this appeal in the sum of N150, 000.00 to the Respondent against the Appellants.
IBRAHIM SHATA BDLIYA, J.C.A.: My learned brother, JUMMAI HANNATU SANKEY, JCA, obliged me with a draft copy of the judgment. I am in agreement with the reasoning and conclusion of my learned brother that this appeal lacks merit. I have nothing useful to add. I adopt my Lord’s reasoning and conclusion as mine and also dismiss the appeal for lacking in merit.
I affirm the ruling of the High Court of Justice, Gombe State, delivered on the 16th day of July, 2020.
EBIOWEI TOBI, J.C.A.: This appeal principally borders on the issue of jurisdiction as on appeal to the lower Court, the Respondent applied that the matter be transferred to the Sharia Court of Appeal since what is involved deals with matters of personal Islamic Law. The lower Court granted this application to transfer the matter to the Sharia Court of Appeal. The implication of this ruling is that the lower Court agrees that the matter involves subject of personal Islamic Law. The Appellant unhappy with this ruling filed this appeal. Let me from the onset state that, the law is settled that on matters involving personal Islamic law, the Court that has jurisdiction to try such matter is the Sharia Court of Appeal and not the regular High Court of a State, in this instance, the Gombe State High Court. See Magaji v. Matari (2000) LPELR-1813(SC), Magizawa v. Magiziwa (2017) LPELR-42133(CA).
My Lord, Jummai Hannatu Sankey, JCA in the leading judgment which I had the privilege to read in draft dismiss the appeal since it is lacking in merit. I agree with the reasoning and the conclusion reached by his Lordship. The lower Court had taking the decision it did bearing in mind that a Court has no powers to adjudicate over a matter if it lacks jurisdiction and if the Court decides to go ahead, all the proceedings and decision of the Court will amount to a nullity. See Hameed Toriola & Anor vs Mrs. Olushola Williams (1982) 7 S.C. 27.
In Buremoh vs Akande (2017) LPELR-41565 (SC), the apex Court held:
“…The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotosho (1993) 1 SCNJ 30.”
This Court and the apex Court in a number of cases stated the importance of jurisdiction in a case. On the importance of jurisdiction, this Court has had course to make a pronouncement in the case Aladesanmi & Ors vs Holden properties (Nig) Ltd (2018) LPELR-49357 in these words:
“The subject of jurisdiction is a serious one and indeed it is the life wire of any proceeding. A Court that adjudicates on a matter it has no jurisdiction would have wasted its time, that of the litigants, the Court staff and indeed material, human and financial resources. This is because it is trite that any decision reached by a Court over a matter it has no jurisdiction will amount to nullity. It is as wasteful as a journey without destination or a journey into an endless or bottomless pit. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) 1 SC (PT II) 123, UYAEMENAH NWORA & ORS VS NWEKE NWABUEZE NSCQR 46 2011 PAGE 409.
This is a journey of a beginning without an ending. No Court and indeed no human being should want to venture into such a journey which is not only tasking but fruitless. The question is, did the lower Court engage in such a journey? In answering that question, it will not be out of place to know what jurisdiction means and what confers jurisdiction on a Court. Jurisdiction is the power of a Court to adjudicate on a matter. This is what gives the Court power to welcome a litigant. This is the strength that a Court has to deal with matters brought before it. This is conferred mainly by statute. The matters that a Court can handle are what the jurisdiction of the Court is all about. Clearly, in Nigeria it is not every Court that has jurisdiction to handle all cases, the statute can confer jurisdiction to handle all cases. The statute can confer jurisdiction on a Court. See A.G. LAGOS VS. DOSUNMU (1989) 6 SC (PT 2) 1.“
Jurisdiction is as important to a Court, just as water is important to fish and breath is to human beings. Jurisdiction is like water to fish and breath to a human being. Without water, fish cannot survive just as human beings cannot survive without breath. The power of a Court without jurisdiction is like a toothless bulldog or a king without a kingdom. It is jurisdiction that activates the judicial powers of a Court.
It is the law that confers jurisdiction on a Court, it cannot be conferred on a Court by the agreement of parties or by the Court by itself. See Braithwaite vs Skye bank Plc (2012) LPELR 15532 (SC), Adeyemi vs State (1991) 6 NWLR (pt 195) 1, Dickson Ogunsiende Virya Farms vs Societe Generale Bank Plc (2018) 9 NWLR (pt. 1624) 230.
In the light of that Section 277 (1) & (2)(c) of the Constitution, the lower Court was in sound footing when it held that the matter involving personal Islamic law is to be determined by the Sharia Court of Appeal.
For the above reasons and much more for the fuller reasons in the lead judgment just delivered by my learned brother, Jummai Hannatu Sankey, JCA, I also dismiss this appeal.
Appearances:
A. N. Joshua, Esq. For Appellant(s)
A. Dauda, Esq. with him, Usman Hussain, Esq. For Respondent(s)
