TSWANYA v. ISAH
(2022)LCN/16517(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, July 05, 2022
CA/A/351S/2011
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
HUSSAINI NDANUSA TSWANYA APPELANT(S)
And
MALLAM NUHU AHMED ISAH RESPONDENT(S)
RATIO
THE MEANING OF THE TERM “JURISDICTION”
What then is meant by the word or term “jurisdiction” without which the Courts cannot carry out their lawful duty/functions? In the case of FBN Ltd. vs. Abraham (2008) LPELR–128 (SC), the word or term “Jurisdiction” was judicially defined to mean “the authority by which a Court had to decide matters that are laid before it for litigation or take cognisance of matters presented in a formal way for its decision.… the limits of this authority are, by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited.”
See further the decisions in National Bank of Nigeria Ltd. & Anr. Vs. John Akinkunlim Shoyoye (1977) LPELR–1948 (SC); Musaconi Limited vs. Mr. H. Aspinall (2013) LPELR–20745 (SC); Obasanjo vs. Yusuf (2004) LPELR–2151 (SC). Attorney General of the Federation vs. Attorney General Abia (2001) LPELR–24862 (SC). PER HUSSAIN, J.C.A
SAIDU TANKO HUSSAIN, J.C.A. (Delivering the Leading Judgment): This appeal case has again resonated the vexed question as to whether the Sharia Court of Appeal of a State can exercise appellate or supervisory jurisdiction over matters or claims to title or ownership thereof, in land matters?
The appellant commenced action at the Upper Sharia Court Minna vide the suit or claim filed on the 8th November, 2001 in suit No. UAC/MNKU II and claimed for declaration of title over the piece of land situated at Paiko village in Paiko Local Government Area of Niger State. The claim was denied hence the stage had been set for the parties to call evidence of witnesses. They did. The appellant herein as the plaintiff or claimant called evidence of two (2) witnesses while four (4) witnesses in all testified for the respondent, then the defendant at the Upper Sharia Court, that is, the trial Court. In the judgment delivered on the 30th April, 2004 the trial Court found in favour of the Appellant. Against that decision of the Upper Sharia Court, the defendant now the respondent in this appeal lodged his appeal at the Sharia Court of Appeal wherein at that Court, the jurisdiction of the Sharia Court of Appeal was raised or challenged by way of the Preliminary Objection taken. The decision of the Sharia Court of Appeal overruling the objection vide the ruling delivered on the 29th November, 2005 as at page 64 of the record, has given rise to the appeal now being considered.
Parties have filed and exchanged their briefs of argument upon the entry or transmission of the record of Appeal to this Court.
In the amended brief of argument for the appellant filed on the 11th January, 2021 is the lone issue identified by him in his brief, which is:
Whether the Niger State Sharia Court of Appeal has the jurisdiction to hear and entertain appeals emanating from Upper Sharia Court relating to land matters.
This lone issue or question need to be modified a little so as not to give the impression that the Sharia Court of Appeal cannot entertain appeal cases in all land matters hence the issue or question is hereby modified to read as follows: –
Whether the Niger State Sharia Court of Appeal has the jurisdiction to hear and entertain appeals emanating from Upper Sharia Court relating to ownership or title in land matters?
Learned counsel for the appellant in his brief of argument, proceeded in his brief to answer this question in the negative while making reference to plethora of decided cases including decisions in Usman vs. Umaru (1992) 7 NWLR (pt. 254) p. 377, 398; NNPC vs. Orhiowasele (2013) 13 NWLR (pt. 1371) 211; Labiyi vs. Anretiola (1992) 8 NWLR (pt. 2158) 39. We were further referred to the provisions in certain enactments in the Constitution of the Federal Republic of Nigeria 1999 (as amended) particularly to Sections 272, 272(1)(2), the combined effect of which he says have divested the Sharia Court of Appeal from exercising jurisdiction over claim to title in land matters and vested that jurisdiction in the State High Courts.
In reference to Sections 12 and 14 of the Sharia (Administration of Justice) Law, 2001 of Niger State, we were urged to hold that the said provisions which purport to confer appellate jurisdiction on the Sharia Court of Appeal to sit over land matters in claims to ownership of land or claim to title, was unconstitutional, null and void. We were urged to so hold and thus resolve the only issue earmarked for determination in this appeal in favour of the appellant.
Respondent’s brief of argument was filed on the 7th December, 2021 wherein learned counsel for the respondent adopted the said lone issue identified by the appellant in his brief of argument. In conceding to the appeal learned respondent’s Counsel referred us to Section 9(1) of the Sharia (Administration of Justice Law) No. 19 of 2001 of Niger State and submitted that the said provision is subject to the provisions of Section 277(a-e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He further submits that a claim for a declaration of title to a piece of land does not fall within the limits of the jurisdiction of the Sharia Court of Appeal. He referred us to the decisions in Maccido Magaji v. Umaru Datijo (2007) All FWLR (pt. 365) 599, 601; Isah Alabi Usman vs. Muhammed Alabi (2006) All FWLR (pt. 314) 363, 365. That is what it should be. Where a Court lacks jurisdiction to entertain any matter brought before it, the Court hearing the case, should be bold enough to state in clear terms that it has no jurisdiction over the matter before it. No Court should be hungry to sit and exercise jurisdiction in a case where it has none so far as the Constitution, or any other law or authority has not conferred on it such lawful authority to enable it exercise jurisdiction on the matter.
What then is meant by the word or term “jurisdiction” without which the Courts cannot carry out their lawful duty/functions? In the case of FBN Ltd. vs. Abraham (2008) LPELR–128 (SC), the word or term “Jurisdiction” was judicially defined to mean “the authority by which a Court had to decide matters that are laid before it for litigation or take cognisance of matters presented in a formal way for its decision.… the limits of this authority are, by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited.”
See further the decisions in National Bank of Nigeria Ltd. & Anr. Vs. John Akinkunlim Shoyoye (1977) LPELR–1948 (SC); Musaconi Limited vs. Mr. H. Aspinall (2013) LPELR–20745 (SC); Obasanjo vs. Yusuf (2004) LPELR–2151 (SC). Attorney General of the Federation vs. Attorney General Abia (2001) LPELR–24862 (SC).
The question now is what or which is that authority that conferred on the Sharia Court of a State the jurisdiction to entertain claims of ownership or title over land? Before I address this question, it is imperative to state here that the Sharia Court of Appeal of State (including Niger State) was established by reason of the constitutional provision at Section 275 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 275(1) of the said Constitution specifically provides that: “There shall be for any state that requires it a Sharia Court of Appeal for that State.”
The Sharia Court of Appeal so established under Section 275 of the Constitution was conferred with jurisdiction to hear or entertain matters by virtue of the provisions at Section 277(1)(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, the Sharia Court of a State including the Sharia Court of Appeal of Niger State has jurisdiction to hear and entertain or decide on appeals, the subject matter of which relate to “Islamic Personal Law”. What is meant by “Islamic Personal Law” has been itemized under Section 277(2) of the Constitution and these are matters regarding marriage, Wakf, gift, Will or succession and guardianship, among others. The list does not include, claim of ownership as it relates to land or title to land.
It would appear to me that the Sharia Court of Appeal of Niger State, the lower Court got carried away by the provisions of the Sharia (Administration of Justice) Law 2001 of Niger State at Sections 9(1), 12, 13 and 14. Section 9(1) of that law provides: –
“The Sharia Courts shall be competent to hear and determine Civil and Criminal Cause and matters where all the parties are Muslims”.
Under Section 12, 13 and 14 of the same law, appellate jurisdiction is conferred on the Sharia Court of Appeal to hear appeals from Sharia Courts and Upper Sharia Courts. By those provisions particularly at Section 12 and 14 of the Sharia (Administration of Justice) Law, 2001 of Niger State, all manner of cases can lie on appeal to the Sharia Court of Appeal in all Civil and Criminal cases decided at those Courts below the Sharia Court of Appeal.
This is where the problem now lies because by those provisions at Section 12, 13 and 14 of the Sharia (Administration of Justice) Law, 2001 of Niger State, appeals in claims of title to land can similarly lie from decisions of the Sharia and Upper Sharia Courts to the Sharia Court of Appeal without exception and without regard to Section 277(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confines or limits the exercise of jurisdiction by the Sharia Court of Appeal to matters listed at paragrpahs (a) –(e) of that subsection. Even the provision of Section 277(1) is not a licence under which the Niger State House of Assembly or Legislature can hold to pass legislations such as Section 12 and 14 of the Sharia (Administration of Justice) Law 2001. Whereas the Constitution of Federal Republic of Nigeria 1999 (as amended) permits the State House of Assembly under Section 277(1) to enact for the state a law “in addition to such other jurisdiction as may be conferred upon it by the law of the state….” This permission, allowance or authority bestowed on the state by this sub-section of the Constitution can only be interpreted to mean only such laws within the ambit of “Islamic Personal Law”. The principle underlying the Ejusdem generis rule is to the effect that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed. I think these principles or rules should apply in this case. The legislature is by this rule or principle confined only to make such laws which are regarded as coming within the principle of “Islamic Personal Law”.
Thus Section 277(1) of the Constitution does not empower the State House of Assembly or the Legislature to enact laws as would confer on the Sharia Court of Appeal with the jurisdiction to hear or entertain claims of title or ownership of land as it is with Section 12 and 14 in particular, of the Sharia (Administration of Justice) Law, 2001 of Niger State. To that extent Sections 12 and 13 of that law are in conflict with the provisions of Section 277(1)(2) of the Constitution of Federal Republic of Nigeria (as amended) hence those provisions or enactments at Sections 12 and 14, in particular of the Sharia (Administration Justice) law 2001 of Niger State is null and void by virtue of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). For this reason, the appeal to this Court on this account, has merit and the same is allowed. Indeed, the Sharia Court of Appeal has no jurisdiction over claims to title to land and cannot exercise same.
The appeal against the decision of the Niger State Sharia Court of Appeal refusing to decline jurisdiction over subject matter of claims to title in land is allowed hence the question earlier posed in the course of the exercise must be resolved in favour of the appellant.
That is the Order and judgment.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini, JCA. I agree with the reasoning and conclusion that this appeal succeeds and is hereby allowed. I abide by all the consequential orders in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother SAIDU TANKO HUSSANI, JCA. I am in agreement with the reasoning and conclusion reached by him in this appeal. I have nothing more to add.
I abide by the consequential orders in the leading judgment.
Appearances:
I.M. Ndamitso, Esq. with him, M. E. Agwulonu, Esq. M. L. Abubakar, Esq. Sadiq Ma’aji, Esq. and U. M. Mayaki, Esq. For Appellant(s)
Mustapha Maruf, Esq. with him, Adah Jonah, Esq. For Respondent(s)