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SHERIF & ORS v. LANTEWA (2021)

SHERIF & ORS v. LANTEWA

(2021)LCN/15570(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, May 21, 2021

CA/J/442/S/2017

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

IDRIS SHERIF & 29 ORS APPELANT(S)

And

ALHAJI ALI LANTEWA RESPONDENT(S)

RATIO:

WHERE A COURT MAY RESOLVE AN ISSUE RAISED SUO MOTU WITHOUT ADDRESSES FROM BOTH PARTIES

Whether the Sharia Court of Appeal has the jurisdiction to entertain an appeal on all cases emanating from the decision of the Upper Sharia Courts.
The above issue was not raised by any of the Counsel in their respective briefs. Though, the general rule is that a Court cannot raise an issue suo motu and proceed to resolve same without affording the parties especially a party that would be adversely affected a hearing, there are exceptions to this rule. Thus, in some situations, a Court is permitted to raise an issue suo motu and resolve same without calling on parties to address it. In OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1359) 300 AT 332; Rhodes-Vivour, JSC held that:-
“The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if (a) the issue relates to the Court’s own jurisdiction (b) both Parties are/were aware or ignored a statute which may have a bearing on the case”.
See ONI VS. FAYEMI & ORS. (2019) LPELR 49299; EFFIOM VS. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106 and TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. The position of the law on raising the issue of jurisdiction suo motu and resolving same without calling on parties to address the Court stems from its importance to adjudication. PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

MEANING OF JURISDICTIION

Jurisdiction is the competence of a Court to hear and determine a dispute before it. See MUSACONI LTD. VS. ASPINALL (2013) 14 NWLR (PT. 375) 435 and MOBIL PRODUCTION (NIG) LTD. VS. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS. (2002) 14 SCM 167. The issue of jurisdiction is so radical and crucial aspect of the competence of a Court for where a Court lacks jurisdiction to hear and determine a matter, the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but rather extrinsic to adjudication. See A.G KWARA STATE & ANOR. VS. ADEYEMO & 7 ORS. (2016) LPELR 4114; SHITTA-BEY VS. A.G FEDERATION & ANOR (1998) LPELR 3055 and SULE VS. NIGERIAN COTTON BOARD (1982) 2 NWLR (PT. 45) 17.

Furthermore, the law has been well settled that a Court can only be competent to decide an action when – (1) It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 SCNLR 341. PER ABUBAKAR MU’AZU LAMIDO, J.C.A.

JURISDICTION OF THE SHARIA COURT OF APPEAL

The above provisions have received numerous judicial interpretations of this Court and the Supreme Court. The Sharia Court of Appeal has jurisdiction 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 jurisdictional competence of the Court also extends to any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm. See ABUJA VS. BIZI (1988) 5 NWLR (PT. 119) 120; TUNFAFI VS. MORESNO (1993) 1 NWLR (PT. 269) 378 and JIJI VS. ABARE (1999) 1 NWLR (PT. 586) 243.
The power of the authorities to create and confer jurisdiction on Courts is not foreign to Islamic Law; The State has power to confer jurisdiction on Courts and any decision reached outside the Court’s jurisdiction is null. In ASAYAYAH VS. ASAYAYAH (2013) LPELR 22958; Oredola, JCA held that:
“Under Islamic Law, territorial jurisdiction or jurisdiction concerning the Parties and subject matters are conferred on Courts by the authority charged with this responsibility and no Court of record shall go outside the stipulated jurisdictions. See Nizaamul Qadai fi Shari’atil Islamiyyah by Abdulkarim Zaidani at page 47 where he stated “It is in order that the jurisdiction of a judge (Court) be restricted to certain specific subject matters ….” It is therefore not proper for a Judge (Court) to adjudicate on matters which are outside his/its jurisdiction”.
In this respect, the claims of the Appellant before the trial Court do not fall within questions of Islamic Personal Law as provided under Section 277 (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Court below has therefore has no business entertaining the appeal founded on declaration of title. PER ABUBAKAR MU’AZU LAMIDO, J.C.A.

 

 

 

ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Yobe State Sharia Court of Appeal, Damaturu delivered on 22nd August 2017 by Hon. Kadi Shuaibu Talba, Hon. Kadi Abba Mammadu and Hon. Kadi Hafiz Sheriff Tahir. The Appellants were the Plaintiffs at the trial Court whereas the Respondent was the Defendant. The Appellants claim before the trial Upper Sharia Court, Damagum is as follows:
The reason for our claim is that Idriss Sheriff with the rest of the heirs, twenty nine (29) of them are suing Alhaji Ali Musa popularly known as Alhaji Ali Lantaiwa about three (3) houses, which is (sic) among the assets of their father which they are suppose to inherit after the death of their father and the friend of their father who is alive, he put them aside for himself, he said they are not part of the assets of Usman Sheriff the deceased while the heirs have strong reasonable witnesses which are to prove that all the three (3) houses are assets of Alhaji Usman Sheriff the deceased.
These houses include:-
1. The house at Maiduguri Road
2. The house at Hausari
3. The house at Sabon Tashan Damaturu.
which is also part of Alhaji Usman Sheriff’s houses which he died in it.
We pray the Court to receive for this orphans their heirs (sic) for them to inherit their father’s wealth (sic). This is my statement.

To prove their case, the Appellants as Plaintiffs fielded 7 witnesses while the Respondent as the Defendant called 4 witnesses. At the conclusion of the trial, the learned trial Judge entered judgment in favour of the Appellants.

​Dissatisfied with the decision of the trial Court, the Defendant appealed to the Sharia Court of Appeal Damaturu herein referred to as the Court below. After hearing the appeal, the Court below allowed the appeal and set aside the decision of the Upper Sharia Court, Damagum. The Court below also directed the Respondent herein to take an oath to prove that the two houses at Maiduguri Road and Sabon Tasha respectively do not belong to the Appellants’ deceased father. He should also swear that the house located at Hausari which is in his possession does not belong to the Appellants’ deceased father. Where the Respondent declines to take the oath, the Appellants would be asked to take the oath in line with their claim. The oath is to be administered at the Upper Sharia Court Damagum.

Dissatisfied with the decision of the Court below, the Plaintiff/Appellants appealed to this Court on 3 grounds, of appeal. The grounds are as follows
GROUND 1
The learned Kadis erred in law when they descended into the arena went to the Yobe State Ministry of Land and Survey and secured file No. as evidence for the Appellant when the file was not transmitted before them as part of the records of the lower Court.
GROUND 2
The learned Kadis erred in law when they made a whimsical interpretation of the principle as contained in the famous Hadith regulating proof under Islamic Law to suit the case of the Appellant therefore causing a miscarriage of justice.
GROUND 3
The judgment is against the weight of evidence.

The Appellants’ brief of argument was filed on 10/10/2018 but deemed properly filed on 19/11/2018 while the Respondent’s brief was filed on 18/12/2018. In the Appellants’ brief of argument, two issues for determination were formulated. The issues are:-
1. Whether the lower Court is entitled to disturb the findings of fact by the trial Court without assailing the credibility of the evidence before the lower Court.
2. Whether the lower Court is entitled to entertain arguments from Counsel that is not supported by the record of appeal or consider Certificate of Occupancy that has not been transmitted to the Court.

The Respondent adopts the two issues for determination formulated by the Appellants.

In arguing issue one, learned Counsel for the Appellants submitted that the trial Court is in a better position to evaluate the evidence of witnesses that testified before it. This is because, it is the Court that had the opportunity of assessing the witnesses and watching their demeanour. He refers to KAYDEE VENTURES VS. MINISTER OF F.C.T. (2010 7 NWLR (PT. 1192) 206 and UBN V. VICTOR IDOWU & ANOR. (2016) 10–11 CAR 264.

​He argued that the trial Court accepted all the seven witnesses presented by the Appellants and the Court below also faulted the four witnesses called by the Respondent as unreliable. In the circumstances, an appeal Court would not dispute the findings and judgment of the trial Court simply because it would have come to a different conclusion on the matter. He referred to KAYDEE VENTURES VS. MINISTER F.C.T. (2010) 7 NWLR (PT. 1192) 206 and UBN VS. IDOWU (Supra).

He argued further that based on principle of tarjih where both parties called witnesses in proof of their case, the evidence of witnesses that are more credible and trustworthy is given more weight. He referred to USMAN VS. KUSFA (2013) 1 SQLR (PT. 11) 1; Bidayatul Mujtahid vol. 2 P. 158 and Ashhalul Madarik Vol. 3 P. 228. The evidence adduced by the Appellant is more weighty and credible as the witnesses have shown how the Appellants owned the property in dispute.

It is the contention of Counsel that where the Court below relied on the Certificate of Occupancy coupled with evidence of possession and assertion of purchase, the person in possession has to prove purchase. He referred to DANO VS. BALA (2014) 2 SQLR (PT. 11) 212. None of the witnesses testified as to how the Respondent came about the properties and even the Certificate of Occupancy relied upon by the Respondent was obtained after the death of the deceased. Furthermore, evidence of long possession would also not be of any help to a party who acquires property by fraud, usurpation, force or through authority in control. He referred to GUMEL VS. NATAMBU (2014) 2 SQLR (PT. 111) 353.

On issue two, it is the submission of learned Counsel for the Appellants that the issue of Certificate of Occupancy raised by the Respondent at the Court below was neither supported by the grounds of appeal nor contained in the record of appeal. Therefore, all arguments on such documents are invalid and ought to be disregarded. He referred to OGBUECHI & ORS. VS. OHIAKWE & ORS. (2015) 2 CAR 436. Parties and the Court are bound by the record of appeal and no Court has the power to go outside the record of appeal to draw conclusions. He referred to GARUBA VS. OMOKHODION (2011) 46 NSCQR 879.

He also submitted that the trial Court cannot inspect and act on a file brought to it and not tendered in evidence as there is no basis for such an exercise. In this respect, where the conclusion of the Court below are not grounded upon the record of appeal transmitted to it, this Court is competent to interfere and set aside the perverse conclusion. He referred to OLUFEAGBA VS. ABDUL-RAHEEM (2009) 40 SCQLR 684. Moreso, a Court cannot suo motu raise an issue and proceed to resolve the said issue without calling for address of parties on the issue raised. He referred to GWADE VS. INEC (2011) 6 NSCQR 230.

Learned Counsel for the Respondent submitted that the procedure of proof under Islamic Law is that he who asserts must prove and he who denies must take an oath. He referred to USMAN VS. KUSFA (2013) 1 SQLR (PT. 11) 1. Where a judgment of a Court is found to be wrong, then an appellate Court has the power to reverse the wrong decision. He referred to BALARABE VS. BALARABE (2006) 3 SLR (PT. 1) 245. Now, since the Court below has faulted the evaluation of evidence made by the trial Court, it is the duty of the Court to rectify any error in the trial Court’s judgment.

He argued that in a claim for inheritance, a Claimant must prove death of a person, his relationship with the person and that the estate to be inherited belongs to the deceased. He referred to JATAU VS. MAILAFIYA (1998) 1 NWLR (PT. 535) 682 and in this connections, the Appellant could not prove that the houses in dispute belonged to their late father.

​On issue two, he submitted that the document which the Appellants claimed were brought to Court and not tendered in evidence were indeed tendered in evidence as Exhibit 1A. He referred to page 84 lines 3–4 of the record of appeal. The Certificate of Occupancy was never challenged by the Appellants and the Court is right to act on it. He referred to WAZIRI VS. WAZIRI (1998) 1 NWLR (PT. 533) 322.

Moreover, learned Counsel submitted that under Islamic Law, an appellate Court is not restricted to issues for determination or arguments of Counsel, it has the power to raise suo motu an issue. He referred to ASKI VS. ALU (1999) 2 NWLR (PT. 587) 348.

​From the record of appeal transmitted to this Court, it can be seen that the Appellants herein are all children of Usman Sheriff, who is deceased and left behind some properties. Part of the properties left by the deceased according to the Appellants are the three houses in dispute in the possession of the Respondent. They initiated an action before the trial Court for a declaration of title to the three houses. This appeal is a continuation of the action for declaration of title to the three houses initiated at the trial Court. In clear terms, it is not an action based on inheritance but rather a declaration of title.

Having gone through the records of appeal transmitted to this Court and having also gone through the arguments of Counsel in their respective briefs of argument the only issue this Court ought to consider is:
Whether the Sharia Court of Appeal has the jurisdiction to entertain an appeal on all cases emanating from the decision of the Upper Sharia Courts.
The above issue was not raised by any of the Counsel in their respective briefs. Though, the general rule is that a Court cannot raise an issue suo motu and proceed to resolve same without affording the parties especially a party that would be adversely affected a hearing, there are exceptions to this rule. Thus, in some situations, a Court is permitted to raise an issue suo motu and resolve same without calling on parties to address it. In OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1359) 300 AT 332; Rhodes-Vivour, JSC held that:-
“The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if (a) the issue relates to the Court’s own jurisdiction (b) both Parties are/were aware or ignored a statute which may have a bearing on the case”.
See ONI VS. FAYEMI & ORS. (2019) LPELR 49299; EFFIOM VS. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106 and TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. The position of the law on raising the issue of jurisdiction suo motu and resolving same without calling on parties to address the Court stems from its importance to adjudication.

Jurisdiction is the competence of a Court to hear and determine a dispute before it. See MUSACONI LTD. VS. ASPINALL (2013) 14 NWLR (PT. 375) 435 and MOBIL PRODUCTION (NIG) LTD. VS. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS. (2002) 14 SCM 167. The issue of jurisdiction is so radical and crucial aspect of the competence of a Court for where a Court lacks jurisdiction to hear and determine a matter, the whole proceeding is a nullity however well conducted and brilliantly decided as the effect is not intrinsic but rather extrinsic to adjudication. See A.G KWARA STATE & ANOR. VS. ADEYEMO & 7 ORS. (2016) LPELR 4114; SHITTA-BEY VS. A.G FEDERATION & ANOR (1998) LPELR 3055 and SULE VS. NIGERIAN COTTON BOARD (1982) 2 NWLR (PT. 45) 17.

Furthermore, the law has been well settled that a Court can only be competent to decide an action when – (1) It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 SCNLR 341.

In the appeal at hand, the issue is whether the subject matter in this appeal is within the jurisdictional competence of a Sharia Court of Appeal. The law is trite that, it is the case of plaintiff that determines the jurisdiction of the Court. See ADEYEMI VS. OPEYORI (1976) 6–10 SC 31; TUKUR VS. GOVT OF GONGOLA STATE (Supra) and MAGAJI VS. MATARI (2000) 5 SC 57. The nature of the plaintiff’s claim and other statutory provisions relating to the competence of a Court are factors to be considered for both serve as guidance on the Court’s limitation or powers.

The claim before the trial Court has been earlier examined, the pertinent question is whether the claim falls within the purview of the Section 277 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Section provides:-
277 (1) The Sharia Court of Appeal of State shall, in addition to such jurisdiction as may be conferred upon it by the law of a State, exercise such appellate and supervisory jurisdiction in Civil Proceedings involving question of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Sub-section (2) of this Section.
(2) For the purposes of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent to decide: –
(a) any question of Islamic personal Law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;
(b) where all the parties to the proceedings are Muslims, any question of Islamic Personal Law regarding a marriage including the validity or dissolution of that marriage, or regarding family relationship, a foundling or guardianship of an infant;
(c) any question of Islamic Personal Law regarding a waqf, gift, will or succession where the endower donor, testator or deceased person is a Muslim;
(d) any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physical or mentally infirm; or
(e) where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic Personal Law, any other question.
​The above provisions have received numerous judicial interpretations of this Court and the Supreme Court. The Sharia Court of Appeal has jurisdiction 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 jurisdictional competence of the Court also extends to any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm. See ABUJA VS. BIZI (1988) 5 NWLR (PT. 119) 120; TUNFAFI VS. MORESNO (1993) 1 NWLR (PT. 269) 378 and JIJI VS. ABARE (1999) 1 NWLR (PT. 586) 243.
The power of the authorities to create and confer jurisdiction on Courts is not foreign to Islamic Law; The State has power to confer jurisdiction on Courts and any decision reached outside the Court’s jurisdiction is null. In ASAYAYAH VS. ASAYAYAH (2013) LPELR 22958; Oredola, JCA held that:
“Under Islamic Law, territorial jurisdiction or jurisdiction concerning the Parties and subject matters are conferred on Courts by the authority charged with this responsibility and no Court of record shall go outside the stipulated jurisdictions. See Nizaamul Qadai fi Shari’atil Islamiyyah by Abdulkarim Zaidani at page 47 where he stated “It is in order that the jurisdiction of a judge (Court) be restricted to certain specific subject matters ….” It is therefore not proper for a Judge (Court) to adjudicate on matters which are outside his/its jurisdiction”.
In this respect, the claims of the Appellant before the trial Court do not fall within questions of Islamic Personal Law as provided under Section 277 (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Court below has therefore has no business entertaining the appeal founded on declaration of title. The Court below has no such jurisdiction to entertain the appeal. The end result is that the Court has acted in vain.

In the circumstances, since the Court below lacks the power to hear and determine the appeal, there is no point in considering the issue for determination formulated by parties. This appeal is hereby allowed, the judgment of the Sharia Court of Appeal Yobe State is hereby struck out and the appeal is hereby remitted to the Hon. Chief Judge Yobe State to be heard by the Appeal Division of the Yobe State High Court.
Parties to bear their own costs.

HUSSEIN MUKHTAR, J.C.A.: I was honoured with a preview of the judgment of my learned brother Abubakar Mu’azu Lamido, JCA. Since the Court below lacks the jurisdiction to hear the appeal, the entire excise amounted to waste of valuable time and resources. This appeal succeeds on the resolution of the issue of jurisdiction. I therefore allow the appeal and subscribe to all the consequential orders in the judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide the conclusions reached therein.

​Reading through the facts of this case as presented before the Upper Sharia Court, Fune and subsequently before the Sharia Court of Appeal Yobe State, the dispute presented for adjudication by the Appellant was predicated on ownership of three houses which they said belonged to their late father and ought formed part of the Estate shared to them on the death of their father, but which the Respondent, a friend of their father, insisted belonged to him and not to their father. This subject matter of dispute raises the issues of whether the Sharia Court of Appeal Yobe had the requisite jurisdiction to entertain the appeal against the judgment of the Upper Sharia Court, Potiskum and, consequently, whether this Court possesses the jurisdiction to entertain this appeal.
These issues were not raised, canvassed and addressed by the Counsel to the parties in this appeal. It is being raised by this Court suo motu. Ordinarily, the Court ought to invite the parties and give them an opportunity to address on it. However, since the issues relates to the jurisdiction of this Court to entertain the appeal, it is a constitutional matter and it constitutes an exception to the general law and it is one this Court can resolve without the need to call the parties to address on it — Tukur Vs Government of Gongola State (1989) 4 NWLR (Pt 117) 517, Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106, Omokuwajo Vs Federal Republic of Nigeria (2013) LPELR 20184(SC) Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289 at 310, Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1455) 572, Angadi vs Peoples Democratic Party (2018) LPELR 44375(SC).

​Jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority.

It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling Statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a Statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this — Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara vs Amadi (2013) 12 NWLR (Pt 1369) 512.

​The jurisdiction of the Sharia Court of Appeal is donated by Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). A read through the provisions of the Section shows that the Sharia Court of Appeal is a Court of enumerated jurisdiction, and not one of general jurisdiction, and that as such for the Sharia Court of Appeal to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction. The provisions of Section 277 of Constitution has been severally interpreted by the appellate Courts and the consensus is that the Sharia Court of Appeal has no jurisdiction to determine any issue involving ownership of land or possession of a piece of land and/or trespass to land; its jurisdiction is limited to determining the issue of succession to land of a deceased Muslim —Abuja Vs Bizi (1989) 5 NWLR (Pt 119) 120, Garba Vs Dogon Yaro (1991) 1 NWLR (Pt 165) 102, Tumfafi vs Meresno (1993) 1 NWLR (Pt 269) 378, Korau vs Korau (1998) 4 NWLR (Pt 545) 212, Baka-Jiji vs Abare (1999) 1 NWLR (Pt 586) 243, Magaji vs Matari (2000) 8 NWLR (Pt 670) 722, Moriki vs Adamu (2001) 15 NWL.R (Pt 737) 666, Boyi vs Hassan (2001) 18 NWLR (Pt 744) 41, Maishanu vs Manu (2007) 7 NWLR (Pt 1032) 42, Faransi vs Noma (2007) 9 NWLR (Pt 1041) 202, Kanawa vs Maikaset (2007) 10 NWLR (Pt 1042) 283 and Mawo vs Tsintuwa (2020) 2 NWLR (Pt 1708) 306. The matter taken before the lower Court was thus outside the areas of its enumerated jurisdiction and it had no vires to hear and determine same. The entire proceedings conducted before it and the judgment rendered thereupon are thus nullities. This Court cannot entertain an appeal against a null judgment.
It is for this reason that I agree that there is merit in the appeal and I too allow same. It is settled law that where a proceeding is null ab initio, like the one conducted before the lower Court in this appeal, there is nothing to set aside as there is nothing legally binding in it—VAB Petroleum Inc Vs Momah (2013) 14 NWLR (Pt 1374) 284 and Stanbic IBTC Bank Plc vs Longterm Global Capital Ltd (2020) 2 NWLR (Pt 1707) 1. I thus endorse the order in the lead judgment striking out the entire proceedings conducted before the Sharia Court of Appeal of Yobe State as well the judgment delivered thereon. I abide the other consequential orders contained in the lead judgment.

Appearances:

T.M. BUBA, Esq. For Appellant(s)

S.A. YELWA, Esq. with him, M.H. auta, Esq., N. Abdulsalam, Esq. and N.K. Idris, Esq. For Respondent(s)