UMARU v. YAYA
(2021)LCN/15792(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, July 08, 2021
CA/S/76S/2019
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
NOMA UMARU APPELANT(S)
And
YA’U YAYA RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the legal capacity of a Court to hear and determine judicial proceedings. It is the power to adjudicate concerning the subject matter of the controversy. See NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) PAGE 42 AT 60 PARA C – D; (2016) ALL FWLR (PT. 825) PAGE 194 AT 206 PARA B – C.
Jurisdiction in its strict sense is the limit which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process by reference to:
1. The subject matter in issue;
2. The persons between whom the issue is joined; and
3. The kind of relief sought
See the cases of NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) PAGE 42 AT 62 – 63 PARA H – A; (2016) ALL FWLR (PT. 825) PAGE 194 AT 208 PARA F – G.
Jurisdiction of Court is a radical and crucial question of the Court’s competence. Where a Court lacks jurisdiction and proceeds to hear and determine a case, the proceedings, no matter how well conducted, are a nullity ab initio and remain so. The nerve centre of adjudication which is akin to the blood that gives life to a human being, is jurisdiction of Court. It is therefore of overriding importance. See YAR’ADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) PAGE 123 AT 156 PARA B – D.
The issue of jurisdiction is the lifeblood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Jurisdiction goes to the competence of the Court or tribunal to entertain a cause or matter. Any proceedings conducted without jurisdiction would amount to a nullity and any decision reached therein is liable to be set aside. See generally the cases of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. ANARO (2015) 12 NWLR (PT. 1472) PAGE 122 AT 185 PARA G – H; (2015) ALL FWLR (PT. 802) PAGE 1644 AT 1694 PARA B – C. PER IDRIS, J.C.A.
FACTORS THAT DETERMINES THE JURISDICTION OF A COURT
As held in MADUKOLU VS. NKEMDILIM (1962) 1 ANLR PAGE 581; (1962) 2 SCNLR 341, a Court is competent to adjudicate over a matter before it only when:
i. It is properly constituted with respect to the number and qualification of its members;
ii. The subject matter of the action is within its jurisdiction;
iii. The action is initiated by due process of the law; and
iv. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See LOKPOBIRI VS. OGOLA (2016) 3 NWLR (PT. 1499) PAGE 328 AT 360 – 361 PARA G – C.
The jurisdiction of a trial Court is determined by the writ of summons and statement of claim of the plaintiff or where the case was initiated by the Originating Summons process, by the questions for determination, the reliefs sought and affidavit in support of the plaintiff’s claims and not the defence put forward by the Defendant. See JAMES VS. INEC (2015) 12 NWLR (PT. 1474) PAGE 538 AT 597 PARA G – H; SUN INSURANCE NIGERIA PLC VS. UMEZ ENGINEERING CONSTRUCTION COMPANY LTD (2015) 11 NWLR (PT. 1471) PAGE 576 AT 604 – 605 PARA H – A PER; ATT. GEN. FEDERATION VS. ATT. GEN. LAGOS (2017) 8 NWLR (PT. 1566) PAGE 20 AT 46 PARA E – F.
In determining whether a Court has jurisdiction to hear a matter, it is the plaintiff’s pleading and no other document that the Court should examine. See ATT. GEN. KWARA VS. ADEYEMO (2017) 1 NWLR (PT. 1546) PAGE 210 AT 239 PARA F; ONI VS. CADBURY NIGERIA PLC (2016) 9 NWLR (PT. 1516) PAGE 80 AT 107 PARA A. PER IDRIS, J.C.A.
THE JURISDICTION OF THE COURT UNDER ISLAMIC LAW
The claim of the Appellant before the trial Court clearly has nothing to do with Islamic Personal Law. Therefore, the Court below lacked the jurisdiction to entertain the appeal from the trial Court as it is not in dispute that actions for declaration of title to land does not fall within the purview of Islamic Personal Law as expressly contemplated by the provision of Section 277(1) and (2)(a) – (e) of the 1999 Constitution of the Federal Republic of Nigeria. See UMMARU FANNAMI VS. BUKAR SARKI (1961 – 1989) 1 Sh. LR 94; MAGAJI VS. MATARI (2000) 2 NSCQR (PT. 1) 636 at 639; ALH. YAHAYA SALEMA & ANOR VS. ALH MAMMAN & ANOR (2006) 3 SLR (PT. 1) 203 AT 212; ABUJA VS. BIZI (1989) 5 NWLR (PT. 119) 120 and SAFIYA KORAU VS. BAZAI KORAU (1998) 4 NWLR (PT. 542) 212 AT 222.
According to the learned author of the book ISLAMIC LAW PRACTICE AND PROCEDURE IN NIGERIAN COURTS at pages 18 – 19:
“The issue of jurisdiction whether limited or not is not novel to Islamic law. It has long been acknowledged as a valid functional aspect of Islamic law jurisprudence, and therefore is crucial, basic and fundamental to the adjudicatory process under Islamic law. Under Islamic law, jurisdiction of Court is created under three heads namely:
a) The Imam
b) The litigant; and
c) The subject matter
The Imam
By the ‘Imam’ (the Sovereign), he limits the jurisdiction of the Courts as it pleases him. No Court therefore has right to adjudicate outside the powers donated to it by the Imam. In Islamic Law, limitations placed on jurisdiction of Courts are matters within the discretion of the Imam – leader, authority or government.
Limitations can be with regards to:
a) Applicable law
b) Subject matter
c) Territory
d) Venue
F. H. Ruxton’s Maliki Law, states:
“Every Kadi must have a separate jurisdiction but the Imam or sovereign can limit their jurisdiction in any way he pleases, either as to the district over which their power extends, or as to their powers of entertaining any judicial proceeding…” PER IDRIS, J.C.A.
WHETHER OR NOT A DEFECT IN COMPETENCE OF COURT AFFECTS THE PROCESS OF ADJUDICATION
The law is trite that one of the ingredients for the exercise of jurisdiction by a Court include the requirement that the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction. See SUN INSURANCE NIGERIA PLC VS. UMEZ ENGINEERING CONSTRUCTION COMPANY LTD (2015) 11 NWLR (PT. 1471) PAGE 576 AT 600 PARA B – C.
Courts are creatures of statute and it is the statute that created a particular Court that will also confer jurisdiction on that Court. It is only the legislature that may vary or increase the jurisdiction of any Court created by it. See JAMES VS. INEC (2015) 12 NWLR (PT. 1474) PAGE 538 AT 597 PARA C.
If a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. See generally ADESIGBIN VS. MILITARY GOVERNOR OF LAGOS STATE (2017) 10 NWLR (PT. 1574) PAGE 442 AT 457 – 458 PARA F – A; A/G LAGOS STATE VS. A/G FEDERATION (2014) 9 NWLR (PT. 1412) PAGE 217 AT 275 PARA B – D. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Shariah Court of Appeal of Kebbi State delivered on the 3rd day of January 2019.
The Appellant sued the Respondent herein before the Upper Sharia Court Shanga (hereinafter referred to as the trial Court) claiming for the recovery of a farmland which the Appellant inherited from his father one Suleiman Hutawa, which was loaned to the Respondent’s mother.
The Respondent however denied the claim and counter claimed that he also inherited the farmland in dispute from his parent.
At the end of the trial, the Court entered judgment in favour of the Appellant.
Dissatisfied with the decision of the trial Court, the Respondent appealed to the Kebbi State Sharia Court of Appeal (hereinafter referred to as the Court below), which after hearing the parties reversed the decision of the trial Court.
Dissatisfied with the decision of the Court below, the Appellant herein filed this appeal before this Court on one ground of appeal.
In the Appellant’s brief of argument settled by his counsel Garba Abubakar Shehu Esq and dated 24th September, 2019 a sole issue was formulated for the determination of the appeal thus:
Whether the claim of the Appellant as plaintiff before the trial Court affects any issue of Islamic personal law which empowered the Court below to competently entertain the appeal from the decision of the lower Court. (This issue relates to the only ground of appeal)
On the sole issue it was the submission of the Appellant that the jurisdiction of a Court can be determined from the plaintiff’s claim. Reference was made to the cases of AFRICAN PETROLEUM PLC VS. AKINNAWO (2012) 4 NWLR (PT. 1289) 100 AT 115 PARA A – D; GOV’T OF KWARA STATE VS. LAFIAGI (2005) 5 NWLR (PART 917) 139 AT 151, USMAN VS BABA (2005) 5 NWLR (PT. 916) 113.
It was further submitted that the claim of the Appellant/plaintiff before trial Court is for a declaration of title to land and that the claim of the Appellant/plaintiff before the trial Court has nothing to do with Islamic Personal Law and is purely on title to land and therefore, the Court below lacked the jurisdiction to entertain the appeal from the trial Court as it is not in dispute that declaration of title does not fall within the purview of Islamic Personal Law as expressly contemplated by the provision of Section 277(1) and (2)(a) – (e) of the 1999 Constitution of the Federal Republic of Nigeria. Reference was made to the case of UMMARU FANNAMI VS. BUKAR SARKI (1961 – 1989) 1 Sh. LR 94 where this Court held that “Question of dispute of ownership of lands properly does not qualify as a dispute involving Islamic personal law.”
Counsel also referred to MAGAJI VS. MATARI (2000) 2 NSCQR (PT. 1) 636 AT 639 where the Supreme Court held that “land dispute can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a waqf, gift, will, succession where the endower, donor, testator, deceased person is a Muslim. The dispute between the appellant and the respondent does not involve any of the matters I mentioned above. The Sharia Court of Appeal has therefore no jurisdiction to adjudicate on the disputes.”
The Appellant’s counsel also referred to the cases of ALH. YAHAYA SALEMA & ANOR VS. ALH MAMMAN & ANOR (2006) 3 SLR (PT 1) 203 AT 212; ABUJA VS. BIZI (1989) 5 NWLR (PT. 119) 120 and SAFIYA KORAU VS. BAZAI KORAU (1998) 4 NWLR (PT. 545) 212 at 222.
The Court was urged to resolve the sole issue in favour of the Appellant and allow the appeal.
This Court was urged to set aside the decision of the Court below for want of jurisdiction and transfer the appeal to the appellate division of the Kebbi State High Court for hearing.
The Respondent did not file any brief of argument. At the hearing, the Court was informed that the Respondent concedes to the appeal.
RESOLUTION OF THE ISSUE
This Court shall adopt the issues for determination as raised by the Appellant herein for the determination of this appeal. The said issue is reproduced hereunder as follows:
Whether the claim of the Appellant as plaintiff before the trial Court affects any issue of Islamic personal law which empowered the Court below to competently entertain the appeal from the decision of the lower Court.
Jurisdiction is the legal capacity of a Court to hear and determine judicial proceedings. It is the power to adjudicate concerning the subject matter of the controversy. See NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) PAGE 42 AT 60 PARA C – D; (2016) ALL FWLR (PT. 825) PAGE 194 AT 206 PARA B – C.
Jurisdiction in its strict sense is the limit which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process by reference to:
1. The subject matter in issue;
2. The persons between whom the issue is joined; and
3. The kind of relief sought
See the cases of NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) PAGE 42 AT 62 – 63 PARA H – A; (2016) ALL FWLR (PT. 825) PAGE 194 AT 208 PARA F – G.
Jurisdiction of Court is a radical and crucial question of the Court’s competence. Where a Court lacks jurisdiction and proceeds to hear and determine a case, the proceedings, no matter how well conducted, are a nullity ab initio and remain so. The nerve centre of adjudication which is akin to the blood that gives life to a human being, is jurisdiction of Court. It is therefore of overriding importance. See YAR’ADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) PAGE 123 AT 156 PARA B – D.
The issue of jurisdiction is the lifeblood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Jurisdiction goes to the competence of the Court or tribunal to entertain a cause or matter. Any proceedings conducted without jurisdiction would amount to a nullity and any decision reached therein is liable to be set aside. See generally the cases of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. ANARO (2015) 12 NWLR (PT. 1472) PAGE 122 AT 185 PARA G – H; (2015) ALL FWLR (PT. 802) PAGE 1644 AT 1694 PARA B – C.
As held in MADUKOLU VS. NKEMDILIM (1962) 1 ANLR PAGE 581; (1962) 2 SCNLR 341, a Court is competent to adjudicate over a matter before it only when:
i. It is properly constituted with respect to the number and qualification of its members;
ii. The subject matter of the action is within its jurisdiction;
iii. The action is initiated by due process of the law; and
iv. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See LOKPOBIRI VS. OGOLA (2016) 3 NWLR (PT. 1499) PAGE 328 AT 360 – 361 PARA G – C.
The jurisdiction of a trial Court is determined by the writ of summons and statement of claim of the plaintiff or where the case was initiated by the Originating Summons process, by the questions for determination, the reliefs sought and affidavit in support of the plaintiff’s claims and not the defence put forward by the Defendant. See JAMES VS. INEC (2015) 12 NWLR (PT. 1474) PAGE 538 AT 597 PARA G – H; SUN INSURANCE NIGERIA PLC VS. UMEZ ENGINEERING CONSTRUCTION COMPANY LTD (2015) 11 NWLR (PT. 1471) PAGE 576 AT 604 – 605 PARA H – A PER; ATT. GEN. FEDERATION VS. ATT. GEN. LAGOS (2017) 8 NWLR (PT. 1566) PAGE 20 AT 46 PARA E – F.
In determining whether a Court has jurisdiction to hear a matter, it is the plaintiff’s pleading and no other document that the Court should examine. See ATT. GEN. KWARA VS. ADEYEMO (2017) 1 NWLR (PT. 1546) PAGE 210 AT 239 PARA F; ONI VS. CADBURY NIGERIA PLC (2016) 9 NWLR (PT. 1516) PAGE 80 AT 107 PARA A.
In view of the foregoing judicial authorities, I shall reproduce hereunder the provision of Section 277(2) of the Constitution of the Federal Republic of Nigeria (as amended). The said Section provides:
2. For the purpose 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 the guardianship 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.
From the claim of the Appellant before the trial Court, it is clear that it was for a declaration of title to land. For clarity, the claim is hereby reproduced hereunder as follows:-
’’I Umaru Noma hereby sued Ya`u before this Court because of farm which I inherited from my father (Suleiman Hutawa) and the lent same to Yaya, after the death of our father, we went and met Yaya and told her that she should return back to us the farm which our lather lent to her as we lodge a complaint against her before the village head of Gwalango, who directed that she should return our farm. But now, Ya’u is claiming that the farm belong to him as she is a mother to him. So therefore, that is the reason of my suing him before the Court for him to leave my farm.”
The claim of the Appellant before the trial Court clearly has nothing to do with Islamic Personal Law. Therefore, the Court below lacked the jurisdiction to entertain the appeal from the trial Court as it is not in dispute that actions for declaration of title to land does not fall within the purview of Islamic Personal Law as expressly contemplated by the provision of Section 277(1) and (2)(a) – (e) of the 1999 Constitution of the Federal Republic of Nigeria. See UMMARU FANNAMI VS. BUKAR SARKI (1961 – 1989) 1 Sh. LR 94; MAGAJI VS. MATARI (2000) 2 NSCQR (PT. 1) 636 at 639; ALH. YAHAYA SALEMA & ANOR VS. ALH MAMMAN & ANOR (2006) 3 SLR (PT. 1) 203 AT 212; ABUJA VS. BIZI (1989) 5 NWLR (PT. 119) 120 and SAFIYA KORAU VS. BAZAI KORAU (1998) 4 NWLR (PT. 542) 212 AT 222.
According to the learned author of the book ISLAMIC LAW PRACTICE AND PROCEDURE IN NIGERIAN COURTS at pages 18 – 19:
“The issue of jurisdiction whether limited or not is not novel to Islamic law. It has long been acknowledged as a valid functional aspect of Islamic law jurisprudence, and therefore is crucial, basic and fundamental to the adjudicatory process under Islamic law. Under Islamic law, jurisdiction of Court is created under three heads namely:
a) The Imam
b) The litigant; and
c) The subject matter
The Imam
By the ‘Imam’ (the Sovereign), he limits the jurisdiction of the Courts as it pleases him. No Court therefore has right to adjudicate outside the powers donated to it by the Imam. In Islamic Law, limitations placed on jurisdiction of Courts are matters within the discretion of the Imam – leader, authority or government.
Limitations can be with regards to:
a) Applicable law
b) Subject matter
c) Territory
d) Venue
F. H. Ruxton’s Maliki Law, states:
“Every Kadi must have a separate jurisdiction but the Imam or sovereign can limit their jurisdiction in any way he pleases, either as to the district over which their power extends, or as to their powers of entertaining any judicial proceeding…”
The Litigant
A litigant creates into a Court a jurisdiction in exercise of his right of choice as to which Court he files his claim and that is of cause subject to the powers and limitation placed on the Court by the legislations.
The subject matter
The subject matter of dispute confers jurisdiction as well, as it is not permissible for a judge to entertain any dispute in a claim the subject of which is based on illegality. No claim of money earned out of any prohibited thing can be entertained by Sharia Court. In other words, the claim of the plaintiff determines jurisdiction of the Court and not either the defence or counter-claim of the defendant.
Thus Islamic law provides for jurisdiction over person’s territory and subject matter in the manner as most other legal systems. But in the case of jurisdiction over subject matter, it provides for classification of jurisdiction into criminal and civil. It further breaks the former into ‘Al-hudud’, with fixed punishment; ‘Al-qisas’, retaliation, etc. in the same vein, the jurisdiction such as family law, contract and commercial causes, juvenile causes, specific/periodic causes and so on, this division is primarily to allow for specialization of Courts and enhance speedy dispensation of justice. One of the pre-requisites of a Court in the exercise of its jurisdiction is that the subject matter of the action must be within its jurisdiction and there should be no feature in the case which prevents the Court from exercising jurisdiction. Where therefore, the subject matter is not within the jurisdiction of the Court, then there is nothing to adjudicate and the decision reached in the absence of jurisdiction is a nullity. Similarly, all other proceedings are nullity. No Court shall entertain a case or matter which it considers that it has no jurisdiction or not sufficient power to try, but shall transfer or obtain the transfer of the case or matter to a Court of appropriate and competent jurisdiction or power.”
The Sharia Court of Appeal is a creation of the 1999 Constitution by virtue of Section 6(4)(f) and (g) of the Constitution. These Sections confer on the Court jurisdiction pursuant to Sections 262(2) in respect of Federal Capital Territory and 277(2) of other states.
The jurisdiction of the Sharia Court of Appeal is thus limited to issues relating to Islamic personal law namely: marriage, divorce, inheritance including matters concerning waqf, gift or succession; custody and guardianship of children. Therefore, where the subject matter of the claim of the plaintiff at the trial Court is simply and purely a matter of declaration of title to land or sale of landed property quite unconnected with Islamic personal law matters as contained under Section 242(2) of the 1979 Constitution (now S. 277(2) of the 1999 Constitution of the Federal Republic of Nigeria), the Sharia Court of Appeal will not have jurisdiction to entertain any appeal emanating therefrom.
The law is trite that one of the ingredients for the exercise of jurisdiction by a Court include the requirement that the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction. See SUN INSURANCE NIGERIA PLC VS. UMEZ ENGINEERING CONSTRUCTION COMPANY LTD (2015) 11 NWLR (PT. 1471) PAGE 576 AT 600 PARA B – C.
Courts are creatures of statute and it is the statute that created a particular Court that will also confer jurisdiction on that Court. It is only the legislature that may vary or increase the jurisdiction of any Court created by it. See JAMES VS. INEC (2015) 12 NWLR (PT. 1474) PAGE 538 AT 597 PARA C.
If a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. See generally ADESIGBIN VS. MILITARY GOVERNOR OF LAGOS STATE (2017) 10 NWLR (PT. 1574) PAGE 442 AT 457 – 458 PARA F – A; A/G LAGOS STATE VS. A/G FEDERATION (2014) 9 NWLR (PT. 1412) PAGE 217 AT 275 PARA B – D.
The issue of jurisdiction has been held to be the lifeblood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. It goes to the competence of the Court or tribunal to entertain a cause or matter. Any proceeding conducted without jurisdiction will amount to a nullity and any decision reached therein is liable to be set aside. See SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. ANARO (2015) 12 NWLR (PT. 472) PAGE 122 AT 185 PARA B – C.
In the light of all that I have stated above, this appeal succeeds on this issue.
This appeal has merit. It is allowed. The proceedings and judgment of the Kebbi State Shariah Court of Appeal delivered on the 3rd day of January, 2019 is hereby set aside. Consequently, the appeal is hereby transferred to the Kebbi State High Court for hearing de novo.
No order as to cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, Idris, JCA. I agree with his conclusion that the Kebbi State Sharia Court of Appeal is totally devoid of the requisite jurisdiction to entertain the appeal of the Respondent. Appeal is allowed by me too. I abide by all the consequential orders of His Lordship Idris, JCA.
SAIDU TANKO HUSSAIN, J.C.A.: I have read in draft, the lead judgment prepared and delivered by my learned brother, Mohammed Baba Idris, JCA. I agree with the reasoning and conclusion that the Sharia Court of Appeal has no jurisdiction over claims to title or ownership of land; accordingly, the Court cannot sit over appeals in these matters. For the reasons so eloquently expressed in the lead judgment, this appeal has considerable merit and same is allowed. I abide by the other orders in the lead judgment.
Appearances:
G. A. SHEHU, Esq. For Appellant(s)
F. N. MAYAKI, Esq. For Respondent(s)
