TAKUR v. TAKUR (2022)

TAKUR v. TAKUR

(2022)LCN/16427(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/K/521S/2018

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ABBA WADA TAKUR APPELANT(S)

And

HAJIYA HAUWA TAKUR RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS A PLAINTIFF’S CLAIM THAT DETERMINES THE JURISDICTION OF A COURT

The law is well established that a plaintiff’s claim or relief is what determines the jurisdiction of a Court. Thus, in order to determine whether the Sharia Court of Appeal has jurisdiction in the instant case, the claim of the Appellant in the Court of first instance should be carefully examined to see if it comes within the jurisdiction conferred on the Court by the relevant legislation. This in essence means that the enabling law vesting jurisdiction has to be taken into consideration in the light of the claim and relief sought by the Claimant. PER IDRIS, J.C.A.

WHETHER OR NOT THE COURTS CAN ADJUDICATE ON ACADEMIC ISSUES

Having resolved that the Sharia Court of Appeal has no jurisdiction, it will be an academic exercise for this Court to engage in resolving the second issue. Courts should on no account, spend precious judicial time on issues that are academic. They should determine live issues, and those are issues that would meet the ends of justice. See DAHIRU VS. APC (2017) 4 NWLR (PT. 1555) PAGE 218 AT 244 PARA E – G, FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) PAGE 141 AT 170 – 282 PARA H; (2015) ALL FWLR (PT. 776) PAGE 486 AT 521 F – G.
Courts, not being academic institutions, do not brook academic disputes. See ALL PROGRESSIVE GRAND ALLIANCE VS. AL-MAKURA (2016) 5 NWLR (PT. 1505) PAGE 316 AT 351 PARA D – E; (2016) ALL FWLR (PT. 826) PAGE 417 AT 497 PARA E – F. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein appealed against the decision of the Sharia Court of Appeal, Dutse, Jigawa State in Suit No. SCA/JG/CVA/116/20117 delivered on the 18th day of July, 2018 by Hon. Kadi Isa Jibrin Gantsa (Presiding Judge), Hon. Kadi Mohammed Sani Salihu, Hon. Kadi Umar Nasir Ahmad, Hon. Safiyanu Mohd Idris and Hon. Dr Bala Musa.

The facts of the case leading to this appeal as adduced from the pleadings before the trial Court are to the effect that the Appellant Abba Wada Takur, commenced this suit against the Respondent to vacate his premises at the Higher Sharia Court Dutse. The Appellant claimed that he sold a house to the Respondent Hajiya Hauwa Takur for 1.3 Million Naira and she paid N1,000,000 and N220,000 which left a balance of N80,000. The Respondent later declined the house as she had heard rumor that the house was built on a government road. The Appellant then took the Respondent to two other houses where she declined one but accepted the other. The house the Respondent accepted at Jigawar Tsada was valued at N950,000 Naira and the Appellant refunded her N310,000. The Respondent stated that she spent N257,000 on renovation but the Appellant is always asking her to vacate but she has not finished renovations.

The Court of first instance gave judgment in favour of the Appellant. Dissatisfied with the said judgment, the Respondent appealed to the Upper Sharia Court, Dutse which affirmed the decision of the Higher Sharia Court Dutse.

Still dissatisfied, the Respondent appealed to the Sharia Court of Appeal which Court gave judgment in favour of the Respondent. The Appellant again dissatisfied with the said decision of the Sharia Court of Appeal, filed a Notice of Appeal dated the 14th day of August, 2018.

The parties to the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellant’s brief of argument as settled by his counsel A. D. Achara, Esq., dated 18th October, 2018, the following issues for determination were distilled from the grounds of appeal thus:
1. Whether the lower Court has powers to entertain and/or assumed jurisdiction over the matter outside Islamic Personal Law.
2. Whether the lower Court was right to have set aside the agreement entered into by the parties.

On issue one, Counsel for the Appellant argued that jurisdiction has been defined in the cases of AG OF LAGOS STATE VS. HON. JUSTICE L. E. DOSUNMU (1989) 3 NWLR (PT. 111) PG. 552 and also in OGUNMOKUN VS. MIL. AD., OSUN STATE (1999) 3 NWLR (PT. 594) PG 261 AT PG. 278 – 279 PARA H – C. Counsel then cited Section 262 of the 1999 Constitution of the Federal Republic of Nigeria and argued that by virtue of both cases and Section 262(1) of the Constitution the lower Court only has jurisdiction to adjudicate over issues relating to Islamic personal law. In addition, Counsel submitted that jurisdiction is the life wire for access to a Court in adjudication under Nigerian civil process. It was then argued that Courts are set up under Constitution, decrees, Acts, laws and edicts and if these do not grant jurisdiction to a Court or tribunal parties cannot by agreement endow it with jurisdiction. Additionally, it was submitted that no matter how well intentioned and properly conducted the proceedings is, once it is incompetent it becomes a nullity and an exercise in futility. Counsel then maintained that the lower Court in the instant case, acted without jurisdiction over a subject matter as what gave rise to this matter does not fall under Islamic Personal Law.

Counsel then referred to the case of OGUNMOKUN VS. MIL. AD., OSUN STATE (SUPRA) in highlighting the significant guides for Courts when dealing with jurisdiction. Counsel further submitted that in the light of these guides the lower Court in the instant case clearly breached all the principles guiding Courts in dealing with jurisdiction. It was then argued that the issue of jurisdiction of a Court is very fundamental and can be raised at any time, in any form even for the first time on appeal. It was further submitted that the lower Court having failed to determine the issue of jurisdiction before proceeding in the instant case, the said proceeding goes to no issue and same amounts to a nullity. The cases of CHIBUEZE VS. IBEDIRO (1999) 3 NWLR (PT. 594) PG. 206 AT 213 PARA. F and C. R. S. FORESTRY COMM. VS. ANWAN (2014) ALL FWLR (PT. 712) PG. 1823 AT 1829 PARA. E were cited in support.

Counsel for the Appellant then relied on the case of F.R.N. VS. LAWANI (2014) ALL FWLR (PT. 712) PG. 1752 AT 1774 and submitted that it is the claim before the Court that has to be examined to see whether or not it comes within the jurisdiction conferred on the Court including if the claim is premature or void. Reference was made to the case of U.I.C. LTD VS. A. S. (NIG) LTD (2014) ALL FWLR (PT. 750) PG. 1407 AT 1419 PARAS. B – E.

On issue two, learned counsel for the Appellant argued that a Court is competent in a case when (a) it is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or another, (b) 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, (c) the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The case of ADETA VS. NIGERIA ARMY (2016) ALL FWLR (PT. 855) PG. 179 AT 201 – 202 was cited and it was argued that the lower Court in the instant case, having no jurisdiction, cannot delve into the case or even set aside the judgment of the Upper Sharia Court of Appeal, Dutse. It was then submitted that the subject matter of the instant case being outside the jurisdictional competence of the lower Court it has no business entertaining the case. Section 262 of the 1999 Constitution of the Federal Republic of Nigeria and the case of SULGRAVE HOLDING INC. VS. F. G. N. (2013) ALL FWLR (PT. 659) PG. 1050 AT 1068 PARAS. B – C were relied on. Counsel further relied on Section 14(1) of the Sharia Court of Appeal Law Cap. S5 Laws of Jigawa State 2012 to argue that since the lower Court lacked jurisdiction it should have declined jurisdiction or strike out or transfer the case to the appropriate Court.

Learned Counsel for the Appellant then rehashed the facts of the case from his opinion and submitted that both parties entered into another agreement in lieu of the first agreement as a result of the complaint of the Respondent who collect title document and received N310,000 as balance. It was further submitted that the Respondent has taken steps to renovate the house and as such cannot refuse the second agreement. Furthermore, Counsel argued that even if the lower Court had jurisdiction the lower Court cannot make a contract different from what the parties agreed to. The case of JOSEPH VS. KWARA STATE POLY. (2014) ALL FWLR (PT. 750) PG. 1215 AT 1236 was relied on. Finally, Counsel also relied on the cases of 7UP BOTTLING CO. LTD & ORS VS. ABIOLA & SONS BOTTLING CO. LTD (2001) FWLR (PT. 70) AT PG. 1648 and OBI & ORS VS. ODIFE & ORS (2001) FWLR (PT. 77) PG. 362 AT 372 to argue that no matter how well conducted, no proceedings should persist without jurisdiction.

The Respondent on her part filed Respondent’s Brief of Argument dated the 5th day of February, 2019. In the said Respondent’s brief of argument as settled by her counsel K. S. Adamu, Esq., a sole issue for determination was formulated as follows:
Whether the lower Court has jurisdiction over the subject matter before it and same was rightly exercised in confirming the validity of the first transaction in favour of the Respondent and in respect of the house situate at Takur Aduwa.

On this issue learned counsel for the Respondent argued that the lower Court has jurisdiction over the subject matter before it and that same was rightly exercised by the Court having regard to the nature of the claim which borders on determination of the transactions entered into between the Appellant and the Respondent wherein the Appellant prayed for an order ejecting the Respondent from the house situate at Takur Aduwa.

Counsel further submitted that the jurisdiction of the lower Court is well defined in Section 5(1) of the Sharia Court (Administration of Justice and Certain Consequential Changes) Law, Cap S5 Laws of Jigawa State 2012. Additionally, it was argued that Section 10(1) of the Sharia Court Appeal Law, Cap S5 Laws of Jigawa State 2012 is explicit and provides that:
“Subject as otherwise provided in this law the Court shall have jurisdiction to hear and determine appeals from Upper Sharia’ah Court.”

Counsel then argued that for a Court to have jurisdiction the following must be present to wit:
a) The proper parties are before the Court;
b) The Subject matter falls with the jurisdiction of the Court:
c) The Composition of the Court as to member and qualifications; and
d) The suit commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction. Counsel then referred to the cases of C. B. N. VS. S. A. P. NIG. LTD (2005) 3 NWLR (PT. 911) P. 152 RATIO 2 and AJAO VS. OBELE (2005) 5 NWLR (PT. 918) 400 AT pp 414 – 415 PARAS H – C RATIO 11. Additionally, it was argued that the relevant things to be determined in the issue of jurisdiction are facts deposed to in the affidavits, the writ of summons and the statement of claim where one has been filed. The case of USMAN VS. BABA (2005) NWLR (PT. 917) 113 RATIO 5 was cited in support.

In conclusion, learned counsel for the Respondent argued that the lower Court has jurisdiction over the matter before it and that same was rightly exercised to confirm the validity of the first transaction.

RESOLUTION OF THE ISSUES
Having reviewed the brief of arguments filed by the parties herein, I shall adopt the issues formulated for the determination of this appeal raised by the Appellant as the said issues in my opinion, reflect all the issues formulated in this appeal. The issues are again reproduced hereunder as follows:
1. Whether the lower Court has powers to entertain and/or assumed jurisdiction over the matter outside Islamic Personal Law.

2. Whether the lower Court was right to have set aside the agreement entered into by the parties.

ISSUE ONE
Whether the lower Court has powers to entertain and/or assumed jurisdiction over the matter outside Islamic Personal Law.

The Appellant has contended that being a matter of declaration of title of a house it has no issues relating to Islamic personal law, while the Respondent maintained that by virtue of Sections 5 and 10 of the Sharia Court Appeal Law, Cap S5 Laws of Jigawa State 2012, the lower Court has the jurisdiction over the subject matter of the case.

The law is well established that a plaintiff’s claim or relief is what determines the jurisdiction of a Court. Thus, in order to determine whether the Sharia Court of Appeal has jurisdiction in the instant case, the claim of the Appellant in the Court of first instance should be carefully examined to see if it comes within the jurisdiction conferred on the Court by the relevant legislation. This in essence means that the enabling law vesting jurisdiction has to be taken into consideration in the light of the claim and relief sought by the Claimant.
What was the Appellant’s claim at the Upper Sharia Court? It reads as follows:
“About 5 – 6 months ago Hajiya Hauwa bought my house at Takur Adu’a at the sum of N1,300,000. 00 where she gave me N1,000,000 at that time and promises to complete the remaining in 2 weeks’ time, but after 2 weeks she gave me N220,000 remaining N80, 000 later she come back to me and claiming that she heard that the house I sold to her there is a rumour it would be going to be demolished, so if I have another house somewhere I should give her instead of this one. She said that, she didn’t have interest in this one. So I took her to another house in yalwawa which she said she has no interest in it, I also took her to another house at jigawar tsada which she chectered her interest and I sold it to her at the rate of N950,000 meaning I should refound the sum of N350,000 to her since the first one she bought it at the rate of 1.3 Million and paid the sum of N1,220,000 remain N80,000. We agreed on that so I will balance her N40,000 instead of N80,000. We agreed on that, so I will balance her the N310,000 and I balance the money to her and gave her all the house document. After two days she said she would not vacate from the first house at Takur which she said she has no interest in it. I reported the matter to police station where they advise me to come to Court and file my case.”

The relevant legislation for the instant case is found in Section 277 of the 1999 Constitution (as amended) which provides as follows:
“(1) The Sharia Court of Appeal of a State shall, in addition to such other 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 –
(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 founding or the guarding of an infant;
(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;
(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 physically 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.”
At this juncture, I must mention that the main concern when interpreting provisions of any statute, is to find out the intention of that statute and where the words used are clear and unambiguous, they must be given their plain and ordinary meaning. See the case of ODENEYE VS. EFUNUGA (1990) LPELR – 2208 (SC).

From the forgoing, it can be seen that the intention of Section 277 of the 1999 Constitution of the Federal Republic of Nigeria is that the Sharia Court of Appeal lacks jurisdiction to entertain appeals in respect of contractual transactions.
I have considered the submissions of learned counsel for the parties herein and I have examined the contents of the record of appeal. Clearly, looking at the claim above there is no doubt that the Appellant sued for the recovery of premises which he alleged the Respondent rejected and has refused to pack out of. Simply put, the claim of the Appellant at the Court of first instance was on the recovery of premises without any question of Islamic Personal Law raised.
In the case of MAGAJI VS. MATARI (2000) 8 NWLR (PT. 670) 722, the Supreme Court had cause to interpret the provision of Section 242 of the 1979 Constitution which is the same with Section 262 and 277 of the 1999 Constitution of the Federal Republic of Nigeria. The material facts of the case are to the effect that following the order for a re-trial made by the Sharia Court of Appeal Bauchi in 1986, the plaintiff Maidaurowa Matari lodged the following complaint in the Nabardo Area Court against the defendant Alhaji Usman Magaji:
“I sued (sic) the defendant about the farmland I inherited from my late Father (called Zaranda) which the defendant took to use with the assertion that it is his own. And this is a land that has been cultivated long ago by my parents, then how could the defendant a stranger as he is could claim its ownership, just of a sudden?”
The learned trial judge after hearing the parties, gave judgment in favour of the plaintiff. Dissatisfied with said judgment, the defendant Usman Magaji, appealed to the Upper Area Court which allowed the appeal. The plaintiff subsequently appealed to the Sharia Court of Appeal Bauchi which unanimously dismissed the appeal. The plaintiff later appealed to the Court of Appeal, Jos Division which held that the decision of Nabardo Area Court granting the farm land to the plaintiff was correct. The Appellant, the original defendant, then appealed to the Supreme Court challenging the jurisdiction of the Sharia Court of Appeal based on the provision of Section 242 of the 1979 Constitution.
While delivering the lead judgment of the Supreme Court, Wali JSC held as follows:
“Section 242(2) of the 1979 Constitution confines Sharia Court of Appeal to what has been termed in that Section as “Islamic Personal Law” in other words Islamic Law of Personal Status. Looking at the facts involved in this case the dispute cannot fit in any of the matters listed in Section 242 (2) of the Constitution. It is simply a case involving ownership of the piece of land in dispute between the contending parties.”
The Supreme Court allowed the appeal and set aside the decision of the Court of Appeal and nullified the judgment of the Sharia Court of Appeal Bauchi for want of jurisdiction.
Flowing from the above decision in MAGAJI VS. MATARI (Supra) and in line with the plethora of judicial decisions of this Court and the Supreme Court, I hold that the Sharia Court of Appeal lacks jurisdiction to determine the instant appeal. The judgment delivered by the Sharia Court of Appeal is without doubt, null and void. See JOSIAH CORNELIUS LTD & ORS VS. EZENWA (1996) LPELR – 1632 (SC).

Having found that the Sharia Court of Appeal has no jurisdiction to hear this matter, the appropriate order to be made by this Court is one striking it out.
In the case of G & C LINES & ORS VS. HENGRACE (NIG) LTD & ORS (2001) LPELR – 1292 (SC), the apex Court in deciding whether the Court of Appeal has power to transfer a case when they find that a lower Court has no jurisdiction held that:
“The case shows that the Lagos High Court made an ex-parte order in an admiralty matter over which it has no jurisdiction. The lower Court, on appeal, set aside the order but made an order transferring the suit to the Federal High Court. I cannot see that the lower Court has power to do that. Having found that the action was filed in a Court which has no jurisdiction, the lower Court ought to have struck out the suit.”

In the circumstances, I therefore resolve this issue in favour of the Appellant against the Respondent.

Having resolved that the Sharia Court of Appeal has no jurisdiction, it will be an academic exercise for this Court to engage in resolving the second issue. Courts should on no account, spend precious judicial time on issues that are academic. They should determine live issues, and those are issues that would meet the ends of justice. See DAHIRU VS. APC (2017) 4 NWLR (PT. 1555) PAGE 218 AT 244 PARA E – G, FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) PAGE 141 AT 170 – 282 PARA H; (2015) ALL FWLR (PT. 776) PAGE 486 AT 521 F – G.
Courts, not being academic institutions, do not brook academic disputes. See ALL PROGRESSIVE GRAND ALLIANCE VS. AL-MAKURA (2016) 5 NWLR (PT. 1505) PAGE 316 AT 351 PARA D – E; (2016) ALL FWLR (PT. 826) PAGE 417 AT 497 PARA E – F.

This appeal has merit and same is accordingly allowed. The decision of the Shariah Court of Appeal, Dutse, Jigawa State in Suit No. SCA/JG/CVA/116/20117 delivered on the 18th day of July, 2018 is hereby set aside.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, before now, the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusion that the appeal is meritorious and should be allowed.

I allow the appeal and award no cost.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I entirely agree with the reasoning and conclusion reached that the appeal is meritorious and ought to be and is hereby allowed. I also abide by all the consequential orders as contained in the lead judgment.