UMMA v. BATURE
(2021)LCN/15794(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 17, 2021
CA/S/7S/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
BASIRU NA UMMA APPELANT(S)
And
ALIYU BATURE RESPONDENT(S)
RATIO
THE EXTENT OF THE JURISIDICTION OF THE SHARIA COURT OF APPEAL
The extent of the jurisdiction of the Sharia Court of Appeal (the Court below) is spelt out at Section 277(1)(2) of the Constitution of Federal Republic of Nigeria, 1999. It is to the effect that:-
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 question of Islamic personal law which the Court is competent to decide in accordance with the provision of Subs-section (2) of the Section.
2. For the purposes of Sub-section (1) of the 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 the 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, or founding or the guardian 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 inform 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 is in accordance with Islamic personal law, any other question.”
Thus, the Sharia Court of appeal sitting, in the exercise of its appellate jurisdiction can only hear and determine cases or matters involving Islamic Personal Law and none other. For purposes of clarity, the subject – areas over which the Sharia Court of appeal can adjudicate on, are those spelt out at Sub-section 2 of Section 277, paragraph (a)-(e) of the Constitution. Disputes which involve claims for title to land or such other land related matters bothering on ownership of land or right of way or right of use of such land, do not fall within the purview of Section 277(2) of the Constitution. Consequently, it is an exercise in futility for the Sharia Court of appeal to delve into or entertain appeals over matters or claims which do not involve Islamic Personal Law, as in this case as it lacks jurisdiction to do so. See Tunga vs. Amarya (2018) LPELR – 44922 CCA); Fada v. Makira (2018) LPELR – 44 94 (CA) Garba vs. Dogon Yaro (1991) NWLR (pt. 165) 102. What all those boil down to, is that the appeal from the Upper Sharia Court to the Sharia Court of appeal, Zamfara, being an appeal on matters in relation to title to land, was not initiated in line with the accepted principles, of due process of law. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal reiterates the vexed question which is whether the Sharia Court of Appeal, holden in Gusau, Zamfara State, can exercise jurisdiction over claims to the use or ownership of land or such land related claims, as in this appeal case.
The Respondent instituted action at the Higher Sharia Court Kaura Namoda and sought for the right of way in relation to the blockade the appellant caused to the entrance of the premises which he, the respondent occupy as his abode.
The trial Higher Sharia Court heard the case and dismissed the claim of the respondent. His appeal to the Upper Sharia Court Kaura Namoda was similarly dismissed. Still undaunted, the respondent appealed to the Sharia Court of Appeal, Gusau, Zamfara State, which affirmed the judgment of Upper Sharia Court vide the judgment delivered at that Court on 7th October, 2018. There is a further appeal to this Court vide the notice of appeal filed on 22nd October, 2018, but with the leave of this Court, the notice of appeal was amended.
The appeal was argued on three issues raised and contained in the appellant’s brief of argument at page 4 thereof, namely:
1. Was the Court below clothed with the requisite jurisdiction to entertain and adjudicate upon appeal No. SCA/KN/04/2018 which does not raise any issue of Islamic Personal Law? (Decoded from Ground 2 of the amended grounds of appeal).
2. Whether the Court below acted with jurisdiction when it ordered the appellant to close the disputed door on the basis of the incompetent claims of the respondent? (Decoded from Ground 3 of the amended grounds of appeal).
3. Whether the decision of the Court below is not against the principles of Islamic Law of evidence. (Decoded from Grounds 1 and 4 of the amended grounds of appeal).
Learned counsel for the appellant adopted his brief of argument at the date of hearing and urged us to resolve all the three (3) issues in his favour and allow the appeal.
Respondent has not filed any brief. In deed, himself and his counsel, rightly in my view, are not opposed to this appeal being allowed.
The extent of the jurisdiction of the Sharia Court of Appeal (the Court below) is spelt out at Section 277(1)(2) of the Constitution of Federal Republic of Nigeria, 1999. It is to the effect that:-
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 question of Islamic personal law which the Court is competent to decide in accordance with the provision of Subs-section (2) of the Section.
2. For the purposes of Sub-section (1) of the 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 the 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, or founding or the guardian 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 inform 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 is in accordance with Islamic personal law, any other question.”
Thus, the Sharia Court of appeal sitting, in the exercise of its appellate jurisdiction can only hear and determine cases or matters involving Islamic Personal Law and none other. For purposes of clarity, the subject – areas over which the Sharia Court of appeal can adjudicate on, are those spelt out at Sub-section 2 of Section 277, paragraph (a)-(e) of the Constitution. Disputes which involve claims for title to land or such other land related matters bothering on ownership of land or right of way or right of use of such land, do not fall within the purview of Section 277(2) of the Constitution. Consequently, it is an exercise in futility for the Sharia Court of appeal to delve into or entertain appeals over matters or claims which do not involve Islamic Personal Law, as in this case as it lacks jurisdiction to do so. See Tunga vs. Amarya (2018) LPELR – 44922 CCA); Fada v. Makira (2018) LPELR – 44 94 (CA) Garba vs. Dogon Yaro (1991) NWLR (pt. 165) 102. What all those boil down to, is that the appeal from the Upper Sharia Court to the Sharia Court of appeal, Zamfara, being an appeal on matters in relation to title to land, was not initiated in line with the accepted principles, of due process of law. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341.
The Sharia Court of appeal, Zamfara acted without jurisdiction when it affirmed the decision of the Upper Sharia Court hence the judgment of the Sharia Court of Appeal delivered on 7th October, 2018, must be struck down. In effect, Issue no. 1 is resolved in favour of the Appellant hence the appeal is to that extent, meritorious and the same succeeds. It is allowed.
Having come to this conclusion on the fundamental question as covered by issue no. 1, there is no longer any need to address issue nos. 2 and 3.
The appeal is allowed. I direct that the appeal against the decision of the Upper Sharia Court delivered on 8th January, 2018 be transferred to and determined at the High Court of Zamfara State.
Ordered accordingly.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment just delivered by my learned brother Hussain, JCA. I agree that this appeal, having been conceded to on behalf of the Respondent, and upon its entire facts and circumstances ought to be allowed. It is accordingly allowed by me too. I abide by all the consequential orders of His Lordship, Hussain, JCA.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Saidu Tanko Hussain, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Ibrahim Abdullahi, Esq. For Appellant(s)
…For Respondent(s)
