LawCare Nigeria

Nigeria Legal Information & Law Reports

TSAGE v. MUSA (2021)

TSAGE v. MUSA

(2021)LCN/15675(CA)

In the Court of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, December 02, 2021

CA/S/46S/2020

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

HAMZA MAI TSAGE APPELANT(S)

And

ALHAJI MUSA RESPONDENT(S)

 

RATIO

WHETHER THE SHARIA COURT OF APPEAL CAN ADJUDICATE OVER A MATTER THAT DOES NOT BORDER ON ISLAMIC PERSONAL LAW

​This case is one on jurisdiction and whether the Sharia Court of Appeal can adjudicate over the instant appeal. The law is well established that a plaintiff’s claim or relief determines the jurisdiction of a Court and as such, in order to determine whether the Sharia Court of Appeal has jurisdiction in the instant case the claim of the Respondent in the Court of first instance will be carefully examined to see if it comes within the jurisdiction conferred on the Court by the relevant legislation. This means that the enabling law vesting jurisdiction on the Court 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 WHERE A COURT HAS NO JURISDICTION TO ADJUDICATE OVER A MATTER, IT SHOULD BE STRUCK OUT

Having found that the Sharia Court of Appeal has no jurisdiction to hear this matter the appropriate order this Court can make is to strike it out. In the case of G & C LINES & ORS VS. HENGRACE (NIG) LTD & ORS (2001) LPELR–1292 (SC), the Supreme 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.” 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, Argungu in Suit No. SCA/KBS/ARG/28/2018 delivered on the 24th day of December, 2019 by Honorable Justice Tukur Sani Argungu, Honorable Justice Abubukar Magaji Yole and Honorable Justice Usman Abdullahi S/Kudu wherein their Lordships affirmed the decision of the Upper Sharia Court II Argungu, Kebbi State.

The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that the Respondent instituted this case in order to recover land which he claimed that he had inherited from his mother. The Respondent stated that this land was entrusted to the Appellant’s father and the land is now in the possession of the Appellant who has refused to give him the farmland. The Respondent’s claim at the trial Court is as follows:
“I Alh Musa is suing Hamza for I want him to come to Court and give me my mother’s farm which she entrusted to his father. Now that their father has died and they divided their inheritance. But they did not include this farm, and I requested him to give me my mother’s farm but he refused. This is why I am suing him so that he will come to Court and the Court will recover my farm from him.”

​The Appellant on his part claimed that the farmland was given to his mother as a gift by the Respondent’s mother. The Appellant in the Upper Sharia Court was then asked to present witnesses to prove his claim that the land was a gift. The Appellant’s witness one Mr. Ishaka Mai Rakumi testified that he knows that the Respondent’s mother gave the land to the Appellant’s mother but he does not know whether it was a gift or entrustment. The Upper Sharia Court did not accept this testimony because of its credibility given that the witness said he does not know whether it was a gift or entrustment. The Upper Sharia Court after conducting I’izari then asked the Respondent to swear an oath to rebut the claim after the land was given to the Respondent. The Sharia Court of Appeal Court after due consideration agreed with the findings of the Upper Sharia Court. Dissatisfied with the decision of the Sharia Court of Appeal the Appellant appealed to this Court. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

The parties to this appeal filed and exchanged their respective briefs of argument. In the Appellant’s brief of argument as settled by his counsel Chris Ohene Esq. dated 8th July, 2021 a sole issue for determination was distilled from the grounds of appeal as follows: 
Whether the Sharia Court of Appeal can adjudicate over the instant appeal that does not border on Islamic Personal Law. 

Learned Counsel for the Appellant submitted that from the statement of claim before the Upper Sharia Court II, Argungu it clearly shows that the dispute between the Appellant and the Respondent is predicated on ownership of farm allegedly belonging to the Appellant’s mother which said farm the Respondent also alleges belongs to his mother. 

​Counsel to the Appellant further argued that the Court’s judgment which was affirmed by the Sharia Court of Appeal was in error as the claim leading to the instant appeal is ownership of farm (land) which exclusive jurisdiction is rested on the State High Court inSection 272(2) of the Constitution. It was also submitted that the jurisdiction of a Court is determined by the Plaintiff’s claim.

Additionally, it was argued that when the issue of jurisdiction is raised in any proceedings, the Court must carefully refer to the writ of summons and statement of claim in order to ascertain whether it has jurisdiction to entertain, hear and determine the claim before it. Counsel then referred to the cases of EMEJURU VS. ABRAHAM (2019) 4 NWLR (PT. 1663) 568 and ELELU HABEEB VS. A. G. FEDERATION & 2 ORS (2012) 13 NWLR (PT. 1314) 474 in support.

Counsel for the Appellant further submitted that the appeal from the Upper Sharia Court II, Argungu shall only lie to the High Court of Kebbi State in its appellate jurisdiction and consistent with the provisions of Section 272(1) and (2) of the 1999 Constitution as amended. Furthermore, it was reiterated that the Sharia Court of Appeal is incompetent to hear and determine the appeal from the Upper Sharia Court as the subject matter has no nexus with Islamic Personal Law as the Constitution has conferred exclusive jurisdiction on the Sharia Court of Appeal in Section 277(1) and (2) of the 1999 Constitution.

​Counsel then stressed that the judgment of the Sharia Court of Appeal which led to the instant judgment exists in a vacuum as the foundation of the appeal is non-existent and a nullity as the Court lacks jurisdiction to entertain the appeal. The cases of ABUBAKAR VS. NASAMU (2012) LPERL–7826 (12) and ELELU HABEEB VS. A.G. FEDERATION & 2 ORS (supra)were relied on. 

In conclusion counsel for the Appellant submitted that the Constitution is the grundnorm of our laws and that the jurisdiction of the Courts is circumscribed in the Constitution and Courts can only expound the law and not expand it. Therefore, where a Court does not have the jurisdiction to entertain a matter, the proceedings however well conducted are a nullity as the lack of jurisdiction is extrinsic to the adjudication. 

The Respondent also filed its Respondent’s brief of argument dated the 28th day of July, 2021 and settled by Osita Solomon Mbamalu Esq. The Respondent adopted the Appellant’s sole issue for determination which is reproduced hereunder thus:
Whether the Sharia Court of Appeal can adjudicate over the instant appeal that does not border on Islamic Personal Law. 

​Counsel for the Respondent argued that Courts are creatures of Statute and that this same statute confers jurisdiction on the Court. It was further submitted that for any Court to exercise jurisdiction in any matter before it, the subject matter must fall within the jurisdiction of such a Court. The cases of GOV OF KWARA STATE VS. GAFAR(1997) 7 NWLR (PT. 511) 51; CBN VS. SAP NIG LTD (2005) 3 NWLR (PT. 911) 15 and SKEN CONSULT VS. UKEY (1981) 1 SC 6 were relied on.

Counsel then submitted that in determining whether or not a Court is clothed with the requisite jurisdiction to hear and determine any matter, the Court will consider the writ of summons, statement of claim, subject matter, persons and relief sought by the claimant. The cases of INTERNATIONAL NIGERBUILD CONST CO LTD VS. GIWA (2002) FWLR (PT. 107) 1312 and INTERCITY BANK PLC VS. ALHAJI ALI (2002) FWLR (PT 126) 8383 were relied on.

Counsel further relied on the case of NDIC VS. CBN & ANOR (2002) FWLR (PT. 99) 1021 to argue that jurisdiction could be denied on the basis of evidence received during trial and as such where jurisdiction is not clear from the pleadings, the Court may determine it from the pleadings. Reference was also made to the cases of NGIGE VS. CAPITAL BANCORP LTD; MUSACONI LTD V MR ASPINALL (2004) ALL FWLR (PT 205) 374; ONYECHIE VS. SHADIYA (1966) 1 ALL NLR 149 or VOL 4 DSC 356 and JOYLAND VS. WEMABOD (2008) S/C.


Learned Counsel to the Respondent further submitted that the subject matter of the dispute between the parties is a farm as such, it was wrong for the Appellant’s counsel to conclude that it was a farmland. Further, it was submitted that there is no iota of evidence that it was a farmland and that Counsel’s address cannot take the place of evidence. The cases of ADUA VS. ESSIEN (2010) 14 NWLR (PT. 1213) 14 and OLORUNTOBA-OJU VS. ABDUL RAHEEM (2009) LPELR 2596 SC were cited in support. Counsel then contended that Counsel for the Appellant misconceived the issue at stake and rushed to an unjustifiable conclusion not founded on evidence. 

​Secondly, Counsel for the Respondent argued that it is not in all cases that a cursory examination of the Plaintiff’s claim would determine the jurisdiction of the Court and where the issue of jurisdiction is not clear from the pleadings the Court will look at the evidence received at the trial. Counsel further submitted that since there is an ambiguity as to the nature of the farm the Court is obligated to consider other pieces of evidence before it. Counsel then submitted that the evidence adduced by the parties at the trial reveals that the real dispute between them is whether the farm is an inheritance by the Respondent or a gift to the mother of the Appellant. 

In conclusion, counsel for the Respondent submitted that the Sharia Court of Appeal, Argungu Kebbi State has the requisite jurisdiction under Section 277(2)(c) of the Constitution to hear and determine the present appeal as it borders on the issue of gift and/or inheritance. 

RESOLUTION OF ISSUE
Having reviewed the briefs of argument filed by the parties herein, I shall adopt the issue for determination formulated by the Appellant in the resolution of this appeal. The issue again is reproduced hereunder as follows:
Whether the Sharia Court of Appeal can adjudicate over the instant appeal that does not border on Islamic Personal Law. 

​This case is one on jurisdiction and whether the Sharia Court of Appeal can adjudicate over the instant appeal. The law is well established that a plaintiff’s claim or relief determines the jurisdiction of a Court and as such, in order to determine whether the Sharia Court of Appeal has jurisdiction in the instant case the claim of the Respondent in the Court of first instance will be carefully examined to see if it comes within the jurisdiction conferred on the Court by the relevant legislation. This means that the enabling law vesting jurisdiction on the Court has to be taken into consideration in the light of the claim and relief sought by the Claimant.
In the instant case, the relevant legislation is Section 277 of the 1990 Constitution (as amended) which provides 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 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 in the statute 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 foregoing, it can be seen that the intention of Section 277 of the Constitution is that the Sharia Court of Appeal lacks jurisdiction to entertain appeals in respect of land matters which do not raise any question of Islamic Personal Law. This means that land disputes can only be heard by the Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a Wakf, gift, will or succession where the endower, donor or testator or deceased person is a Muslim.
​What though is the Respondent’s claim at the Upper Sharia Court? The Respondent’s claim is as follows:
“I Alh Musa is suing Hamza for I want him to come to Court and give me my mother’s farm which she entrusted to his father. Now that their father has died and they divided their inheritance. But they did not include this farm, and I requested him to give me my mother’s farm but he refused. This is why I am suing him so that he will come to Court and the Court will recover my farm from him.”
I have carefully considered the submissions of the learned counsel for the Appellant as well as the contents of the record of appeal. Clearly, looking at the claim above there is no doubt that the Respondent sued for the recovery of land which he alleged belongs to his mother but was in the possession of the Appellant. Simply put, the claim of the Respondent at the Court of first instance was on the ownership of a farm without any question of Islamic Personal Law raised. I will reiterate that this case is one involving ownership of the piece of land in dispute between the contending parties. I also agree with Counsel to the Appellant that the issue of gift is ancillary to the main claim.
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 277 of the 1999 Constitution. The material facts of the case are to the effect that following the order for a retrial 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 farm land 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 stronger 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 the 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 farmland 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.

In the leading judgment of the Supreme Court Wali, JSC held thus: 
“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 apex 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.
Drawing from the decision in the above case of 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 given 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 this Court can make is to strike it out. In the case of G & C LINES & ORS VS. HENGRACE (NIG) LTD & ORS (2001) LPELR–1292 (SC), the Supreme 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 light of the foregoing, I therefore resolve the sole issue formulated in favour of the Appellant against the Respondent and strike out this matter. 

This appeal is therefore allowed and the judgment of the Shariah Court of Appeal, Argungu in Suit No. SCA/KBS/ARG/28/2018 delivered on 24th December, 2019 is hereby set aside.

SAIDU TANKO HUSSAINI, J.C.A.: I agree.

MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother M. B. Idris 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.

Appearances:

C. Ohene, Esq. For Appellant(s)

O. Mbamalu, Esq., with him, A. Dahiru, Esq. For Respondent(s)