MUSA NA?ALLA & ANOR v. SANSAMI JABBI & ANOR
(2014)LCN/7052(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/S/65s/2013
RATIO
FACTS TO BE ESTABLISHED TO PROVE THE OWNERSHIP OF LAND THROUGH TRADITIONAL HISTORY
In order to prove the ownership of the land in dispute through traditional history which is one of the methods of acquisition of land, the respondent as the claimant must plead and prove by conclusive evidence, such facts as –
(i) Who founded the land in dispute;
(ii) How that first person founded the land and
(iii) The particulars of the intervening owners through whom the claimant came to own that land.
Elegushi V. Oseni (2005) All FWLR (Pt.282) 1837 at 1852 (SC); Nkado V. Obiano (1997) 1 NWLR (Pt.482) 374 (SC); Piaro V. Tenalo (1976). 12 SC 31. PER TOM SHAIBU YAKUBU, J.C.A
LAND: WHETHER A PARTY CAN PROVE THE IDENTITY OF A LAND BY ORAL EVIDENCE
It is settled law that a party is not restricted to the production of the survey plan of a parcel of land to proof its identity. A party can prove the identity of the land in dispute by oral evidence describing the same with such degree of accuracy in a manner that will guide a surveyor in producing a survey plan of the land or by a better way of proving the identity and extent of the land claimed by filing a survey plan reflecting all the features of the land showing clearly the boundaries. See OGUN V. AKINYELU NSCQLR 20 (2004) 303. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
LAND: BURDEN OF PROVING WITH CERTAINTY THE IDENTITY OF LAND
The law is settled concerning the party that has the burden of proving with certainty the identity of the land in dispute in a case, particularly in a case wherein declaration of title and injunction are being sought. The burden in this regard is always on the party claiming the reliefs, See, GBADAMOSI’s case (supra); and OKONKWO V. OKONKWO NSCQLR 42 (2010) 1291. The position of the law in this regard in my considered view only acknowledges or recognises the fact that it is a plaintiff who brings an action that primarily nominates the issues for determination or decision therein (see LONGE V. FIRST BANK OF NIGERIA PLC (2012) ALL FWLR (PT.525) 258); and the immutable position of the law till date, that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove (see section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD (2013) 1 NWLR (PT.1336) 618). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
JAFARU MIKAILU Justice of The Court of Appeal of Nigeria
TUNDE OLAREWAJU AWOTOYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. MUSA NA?ALLA
2. JANNA NA?ALLA Appellant(s)
AND
1. SANSAMI JABBI
2. BADATTI JABBI Respondent(s)
TUNDE OLAREWAJU AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the appellant against the decision of the Sharia Court of Appeal Kebbi State delivered on 4/03/2013.
The plaintiff had instituted an action at the Upper Sharia Court Zuru in case No. USC/ZUR/CV/EST/24/02 by filing a statement of claim which reads thus:
“I, Sansani Jabbi is seeking from this court to invite my co-heirs so that our farm which we inherit from our grandfather Ganya will be divided to us. The deceased is survived by Jabbi, and Na’Allah. They did not divide their inheritance. Jabbi is dead and is survived two children.
1. Sansani
2. Badatti
While Na-Allah is also survived by the following children:
1. Cherina
2. Janna
3. Musa
4. Jinya”
The Upper Sharia Court Zuru, after hearing the parties gave judgment as follows:
“I Hon. Muhammad Ango, Judge of Upper Sharia Court Zuru has decided the division of the Ganya farm that has the total measurement of 1.025 fts into two I confirm to the children of Jabbi half – 512.5 fts and also confirm the other half to Na-Allah – 512.5 fts.
The court ordered Sansani and Badotto to take the part of Jabbi. While Cheraha, Janna and Musa should take the part of Na-Allah.”
Being dissatisfied with the above judgment, the defendants appealed to the Sharia Court of Appeal Kebbi.
The lower court after hearing the parties gave judgment thus:
“Based on the foregoing, we at the Sharia Court of Appeal Kebbi State holding at Yauri/Zuru Zone have affirmed the decision of USC Zuru. The court has decided by dividing the farm left by Ganya to his 2 childrens Na-Allah and Jabbi. The court held that the children of Na-Allah should take his share while the children of Jabbi should also take his share. This decision is in accordance with Islamic law.
Appeal not allow.”
The appellants then filed amended Notice of Appeal against the judgment of the lower court containing 4 grounds of appeals which read (shorn of the particulars)
“GROUND 1
The Sharia Court of Appeal Kebbi State denied the appellants right of fair hearing when it fails to address some of his grounds of appeal.
GROUND 2
The Lower Court erred in law when it affirmed the judgment of the Upper Sharia Court Zuru which applies principle of Islamic Law in distributing estates of a non-muslim.
GROUND 3
The lower court erred in law when it affirmed the judgment of the trial court delivered without jurisdiction.
GROUND 4
The Sharia Court of Appeal Kebbi State lacks the jurisdiction to hear and determine the instant case which is in respect of a distribution of the estate of a deceased non-Muslim and thus not issue of Islamic personal law and therefore renders it decision null and void.”
After transmission of record of appeal, the appellants, through their counsel, Garba Abubakar Shehu, on 23/10/2013 filed appellants’ brief of argument. When the respondents despite having been served with the appellants’ brief of argument failed to file respondent’s brief of argument Appellants sought for and obtained order of court setting the appeal down for hearing on the appellant’s brief alone in the absence of the respondent’s brief of argument. Learned counsel formulated 3 issues for determination.
The issues are: –
1. Whether the claim of the respondents/appellants relating to the distribution of an estate of a Non-Muslim qualifies as issue of Islamic personal law which empowered the lower court to competently entertain the appeal from the trial court which applied principle of Islamic Law (this issue relates to ground four and ground two of the original ground of appeal.)
2. Whether the failure of lower court to address ground three of their grounds of appeal amounts to denial of right of fair hearing (this relates to ground one of the grounds of appeal.)
3. Whether the decision of the lower court was right in affirming the decision of the trial court which was delivered without complying with condition precedent to the jurisdiction of the trial court (this relates to ground three of the ground of appeal.)
On Issue No.1, learned counsel submitted that in distribution of estate of a deceased the personal law of the deceased was the applicable law. He added that the Sharia Court of Appeal could only entertain an appeal relating to succession of the deceased who was a Muslim. He referred to S.277(2)c of the 1999 Constitution.
He therefore submitted that the lower court was in error when it affirmed the decision of the trial court which applied Islamic law in distributing the estate of a Non-Muslim. He cited CHIGA V. UMARU (1986) 2 NWLR (Pt.290) 460.
On Issue No.2 learned counsel for the appellant submitted that an appeal court had a duty to address all the grounds of appeal before it. He stated that the lower court failed to make pronouncement on ground 3 of the grounds of appeal. He relied on WAJE V FUSHJUSHI (2006) 3SCR (PART 1) 153 at 62; ONWE OKE & SONS V EZO NWA-OGBUINYA & 13 ORS (2001) 5NSQR 93 at 110-111
He urged the court to resolve the second issue in favour of the appellant.
On Issues No.3, learned appellants’ counsel submitted that the judgment of the lower court did not comply with the provision of s.9 of the Sharia (Administration of Justice) Law 2000 which provided that a Non-Muslim appearing before the Sharia Court or Upper Sharia Court must consent in writing before the court proceeded to hear his case. He submitted that 2nd Respondent was a traditional believer and her consent was not obtained. He urged the court to resolve this issue in favour of the appellant and allow the appeal.
He cited CHIGA V UMARU (Supra); TSOKWA MOTORS V UBA (2008) 33 NSCQLR 33.
I have carefully considered the submissions of learned counsel for the appellant and the contents of the record of appeal transmitted to this court.
One major condition that must be satisfied for the lower court to have jurisdiction to determine the appeal No. SCA/KBS/ZR/52/2012 it being in respect of succession, is that it must be shown that the deceased whose estate is to be distributed was a Muslim. See s.277 (2)c of the 1999 Constitution. It reads;
“Any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim”
See MAGAJI V MATARI [2000] 8NWLR (Pt. 670) 722.
In my view, the statement of claim or proceedings before the Upper Sharia Court Zuru should have reflected the faith of the deceased for the Sharia Court of Appeal Kebbi to assume jurisdiction on the appeal. The jurisdiction of a court is the pivot of any valid adjudication by that court and without it the whole proceedings is an exercise in futility and a nullity.
See MADUKOLU V NKEMDILIM (1962) 2SCNLR 341; GOMBE V PW [NIG] LTD (1995) 6NWLR (Pt. 402) 402.
I must add also that complaints against the judgment of Upper Sharia Court Zuru should not lie to this court as appeal does not lie directly from the court to this court. The judgment appealed against in this court, is the decision of Kebbi State Sharia Court of Appeal Zuru/Yauri zone dated 4/3/2013 in suit No. SCA/KBS/ZR/52/2012
See Sections 240 and 241 of the 1999 constitution
S.240 of the Constitution reads:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
An appeal does not lie to this court from the Upper Sharia Court.
It is in the light of the above that I intend to determine this appeal. The sole issue to be determined in this appeal in my respectful view is whether or not the lower court had jurisdiction to entertain the appeal now before us.
I shall refrain from resolving issues that are on grounds attacking the judgment of the Upper Sharia Court which are better resolved by a court competent to hear the appeal from such a court.
By virtue of the provision of s.277 (2c) of the 1999 Constitution it is imperative for a Sharia Court of Appeal to assume jurisdiction to first ensure that the deceased whose estate is to be distributed was a Muslim. If there is nothing in the statement of claim or in the proceedings to show that the deceased was a Muslim then the appeal should not have been before the Sharia Court of Appeal but before the High Court of Justice Kebbi State. There should be no speculation or conjecture on it. It must be expressly stated in the proceedings to comply with the provision of S.272 (2c) of the 1999 Constitution.
There is nothing to show that the deceased, Ganya was a Muslim and therefore I am unable to see why the lower court assumed jurisdiction over the appeal.
I resolve the sole issue in favour of the appellant.
This appeal has merit and it is hereby allowed.
I hereby set aside the judgment of the lower court in suit No.SCA/KBS/ZR/52/2002, Musa Na-Allah & Janna Na-Allah V Sansami Jabbi & Badatti Jabbi delivered on 4/3/2013 for want of jurisdiction. In its place I hereby remit the appeal back to the Hon. Chief Judge of Kebbi State to be heard by a High Court of the State in its appellate jurisdiction.
PRONOUNCEMENT:
JAMES SHEHU ABIRIYI, J.C.A.: HON. JUSTICE MIKA’ILU (NOW LATE) PRESIDED OVER THE APPEAL AND AGREED WITH THE LEADING JUDGMENT OF HON. JUSTICE T. O. AWOTOYE J.C.A.
JAMES SHEHU ABIRIYI, J.C.A.: I had before now read the draft of the judgment just delivered by my learned brother Tunde O. Awotoye, JCA.
The lower court had no jurisdiction to entertain the appeal to it in this matter.
I too allow the appeal and set aside the judgment of the lower court in suit No. SCA/KBS/52/2002 Musa Na-Allah & Janna Na-Allah vs. Sansami Jabbi & Badatte Jabbi delivered on 4/3/2013 for want of jurisdiction.
The appeal is hereby remitted back to the Hon. Chief Judge of Kebbi State to be heard by the High Court of the State in its appellate jurisdiction.
Appearances
Garba Shehu Esq.For Appellant
AND
Not Represented.For Respondent
