MORIKI v. MORIKI (2022)

MORIKI v. MORIKI

(2022)LCN/17135(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, January 17, 2022

CA/S/73S/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

ALH. USMAN GALADIMA MORIKI APPELANT(S)

And

SAMAILA GADO MORIKI RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE JURISDICTION OF THE SHARIA COURT UNDER THE CONSTITUTION

The jurisdiction of the Sharia Court of Appeal under the Constitution of the Federal Republic of Nigeria 1999 (as amended) has been circumscribed at Section 277 of the Constitution (as amended) such that the Sharia Court of Appeal can only entertain and determine questions concerning or relating to Islamic Personal Law as itemised at Section 277(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Sharia Court of Appeal is thus, prohibited from entertaining disputes or appeals that relate to ownership of or title to land. See Maida vs. Modu (2000) 4 NWLR (pt. 651) 99, 109. Sale vs. Babale (2018) 6 5 QRL (pt. 1) 33 (CA).
The judgment appealed against at the Sharia Court of Appeal, Gusau, is at pages 61-70 of the record of appeal wherein the Court at pages 69-70 of the record alluded to the issue relating to disputes as to the acquisition, ownership of and title to land and in that regard, affirmed the decision of the Upper Sharia Court, Shinkafi.
Of course the Sharia Court of Appeal lacks the jurisdiction to veer into that area of the law let alone assume jurisdiction over same. Refer further to the decision in Haruna & Anr. vs. Suleiman & Attorney General Zamfara State (2014) 2 SQLR (pt. iv) pt. 521; Ziga vs. N. A. Mumuan (2016) 4 SQRL (pt. 11) pt. 245 ratio 5. The Sharia Court of Appeal cannot sit to adjudicate a case of claim for title or ownership of landed properties hence, the decision of the Sharia Court of Appeal reached on the 16th January, 2020 in this regard, is a nullity. The appeal in effect succeeds and same is allowed on Issue No.1. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal came up for hearing on the 11th January, 2022.

Parties on both sides were absent, so was their counsel absent from the proceedings at the hearing on the said date. The Appellant was however represented by counsel in the person of Aminu Alhassan on the 24th November, 2021 when a new date was fixed against the 11th January, 2022 for the hearing of the Appeal. It is also on account of the respondent’s desire to engage a new counsel that the appeal case had to be adjourned to 11th January, 2022 to accommodate respondent’s new counsel.

As indicated before, when the appeal came up on 11th January, 2022 parties and their counsel were absent at the hearing. There is every indication that the Respondent and his new counsel, Mr. Lateef. Omoyemi Akangbe, of integrity Law Haven, No. 28 Ahmadu Bello way, Sokoto had been put on Notice of the impending hearing vide the Notice of hearing served on Counsel/Secretary on the 6th January, 2022.

The appellant had long before then filed his brief of argument through his counsel, the brief having been filed on the 23rd February, 2021 and served on the Respondent on 23rd October, 2021. Respondent did not however file any brief in response. That was the setting as at the 11th January, 2022 when the appeal came up for hearing.

Order 19 Rule 9(4) of the Court of Appeal Rules, 2021 provides thus: –
“When an appeal is called and the parties have been duly served with the Notice of hearing but a party or any legal practitioner appearing for him does not appear or present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”

Order 19 Rule 10(3) of the said Rules further provide thus:-
“When a Respondent, who has been duly served with the Appellant’s brief, fails to file his brief within the time stipulated in this order, or within the time as extended by the Court, the Court shall, upon being satisfied that the Respondent was duly served with a hearing notice, hear the appeal without the necessity of an application by the Appellant to hear the appeal on the Appellant’s brief alone.”

Guided by the above mentioned provisions of the Rules of this Court, we went ahead and took the appeal on the 11th January, 2022. This appeal thus, is against the decision of the Zamfara State Sharia Court of Appeal sitting in Gusau and delivered on the 16th January, 2020 in favour of the Respondent.

The facts giving to this case on appeal have been set out in the record of appeal. However, from the perspective of the appellant, the Respondent had encroached into the portion of the land which the appellant (or his father) had carved out as “set back” but lying adjacent to the main building, belonging to the Appellant.

Amid protestations of the appellant, the Respondent encroached into his space (set back) and put up certain structures to the annoyance and irritation of the appellant who in the bid to reclaim the space (set back) approached the Higher Sharia Court Moriki vide suit No. CV/40/15 for a claim of trespass and nuisance against the respondent. The Higher Sharia Court entered judgment in favour of the appellant. The appellant in whose favour judgment was given at that Court however lodged an appeal to the Upper Sharia Court Shinkafi which set aside the judgment of the Higher Sharia Court and ordered for a retrial vide suit No. CV/95/2016 at the Higher Sharia Court, Moriki. At the conclusion of the proceedings, the Higher Sharia Court again decided the case in favour of the Appellant by conferring ownership of the 3 feet set back to the appellant.

The Respondent dissatisfied with that decision of the Higher Sharia Court, lodged his appeal to the Upper Sharia Court, Shinkafi which affirmed in part the reliefs granted to the Appellant by the Higher Sharia Court but over turned that aspect of the decision of the Higher Sharia Court relating to the ownership of the 3 feet set back and conferred same on the Respondent.

Against the decision of the Upper Sharia Court given on 17th January, 2019, the Appellant lodged an appeal to the Sharia Court of Appeal, Gusau, Zamfara State, which confirmed the decision of the Upper Sharia Court. The appellant has further appealed to this Court against the decision of the Sharia Court of Appeal handed down on the 16th January, 2020.

Appellant’s Notice and Grounds of Appeal are at pages 72-75 of the record of appeal. The appellant has appealed to this Court on two (2) grounds only which, shorn of their particulars, are as follows:-
“Ground One
The learned trial khadi erred in law when they exercised jurisdiction on the matter of title to Land/Land ownership raised by the respondent.
Ground two
The learned trial Khadi erred in law for upholding that part of the judgment of the Upper Sharia Court shinkafi Division which conferred ownership of the disputed 3 feet set back (land) to the respondent.”

The appellant in the brief of argument filed on his behalf on 23rd February, 2021 formulated two (2) issues from the two (2) grounds of appeal thus:-
Issue One
“Whether in the light of Section 277 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria, and the location of the land in dispute, the honourable Khadis of the Court below did not erred in law when they assumed jurisdiction and upheld that part of the decision of the Upper Sharia Court Shinkafi which conferred ownership of the dispute 3 feet setback to the Respondent without having regard to their statutory jurisdiction? (Distilled from ground 1).
Issue two
If issue one (1) is answered in the negative, whether it can be said that the honourable Khadis of the Court below have adequately considered the issue raised for determination by the appellant to wit; “whether the respondent had proved his ownership of the disputed 3 feet setback at the lower Court in accordance with Islamic Law.”

I have considered the submission made by the counsel in the appellant in his brief of argument on those two issues.

The jurisdiction of the Sharia Court of Appeal under the Constitution of the Federal Republic of Nigeria 1999 (as amended) has been circumscribed at Section 277 of the Constitution (as amended) such that the Sharia Court of Appeal can only entertain and determine questions concerning or relating to Islamic Personal Law as itemised at Section 277(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Sharia Court of Appeal is thus, prohibited from entertaining disputes or appeals that relate to ownership of or title to land. See Maida vs. Modu (2000) 4 NWLR (pt. 651) 99, 109. Sale vs. Babale (2018) 6 5 QRL (pt. 1) 33 (CA).
The judgment appealed against at the Sharia Court of Appeal, Gusau, is at pages 61-70 of the record of appeal wherein the Court at pages 69-70 of the record alluded to the issue relating to disputes as to the acquisition, ownership of and title to land and in that regard, affirmed the decision of the Upper Sharia Court, Shinkafi.
Of course the Sharia Court of Appeal lacks the jurisdiction to veer into that area of the law let alone assume jurisdiction over same. Refer further to the decision in Haruna & Anr. vs. Suleiman & Attorney General Zamfara State (2014) 2 SQLR (pt. iv) pt. 521; Ziga vs. N. A. Mumuan (2016) 4 SQRL (pt. 11) pt. 245 ratio 5. The Sharia Court of Appeal cannot sit to adjudicate a case of claim for title or ownership of landed properties hence, the decision of the Sharia Court of Appeal reached on the 16th January, 2020 in this regard, is a nullity. The appeal in effect succeeds and same is allowed on Issue No.1.

Having come to this conclusion on the Issue of Jurisdiction, Issue No. 2 becomes academic and no longer worthy for my attention. The appeal case is remitted to the Appellate session of the High Court of Zamfara State for hearing on the issue of ownership and extent of the boundary between the Appellant and the Respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother Hussaini, JCA. I agree with his conclusion that the Sharia Court of Appeal, Zamfara State lacks jurisdiction to entertain the subject matter in this appeal, being a dispute over title to land in an urban area. The jurisdiction provided for a Sharia Court of Appeal under Section 277 (2) of the Constitution of the Federal Republic of Nigeria, (as amended) does not extend to adjudications concerning disputes as to title to land but mainly with respect to disputes involving questions on Islamic Personal Law.
I too would allow this appeal. Appeal is allowed by me. I abide by all the consequential orders in the lead judgment.

MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother Saidu Tanko Hussaini JCA. I agree with the reasoning and conclusion. This appeal succeeds and same is allowed. I abide by the consequential order in the lead judgment.