TARAUNI v. DARMA (2022)

TARAUNI v. DARMA

(2022)LCN/16430(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, April 13, 2022

CA/KN/290/S/2017

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ALHAJI ZUBAIRU MUHAMMAD TARAUNI APPELANT(S)

And

ALHAJI ALIYU SALIHU DARMA RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE STATEMENT OF CLAIM THAT DETERMINES THE JURISDICTION OF AN APPEAL COURT

From a plethora of judicial authorities, it is the statement of claim at the trial Court that determines the jurisdiction of an appeal Court. He relied on the case of Gulma v. Bahago (1993) 1 NWLR (Pt. 272) 766. Learned counsel submitted that at pages 1, 2, 8, and 9 of the record of appeal it has been clearly stated by the plaintiff now appellant that he is seeking for the Court to confirm the sales transaction of a plot of land. The lower Court lacks the jurisdiction to entertain any appeal which does not involve question of Islamic personal law. He relied on the case of Korau v. Korau (1998) 4 NWLR (Pt. 545) 212 where it was held that:
“The Sharia Court of Appeal has no jurisdiction to entertain an appeal which does not raise issue of islamic personal law, it follows therefore that in such cases, it is High Court of the appropriate state that can sit in its appellate jurisdiction over the Appeal” PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Sharia Court of Appeal Kano State (hereinafter referred to as the lower Court) delivered on 3rd of January 2013 in Suit No: SCA/KN/CV/18/2011. The plaintiff/appellants claim before the trial Court, Upper Sharia Court Shahuci Kano is thus:
“I seek the Court to confirm the sales transaction we conducted with the family of Tasi’u Darma whom they sold to me Plot at Yankaba in the sum of of N3,500,000.00 that is why I want this Court to confirm the sales transaction”

The heirs were summoned to appear before the Court. They agreed that they sold the plot to the appellant. The trial Court confirmed the sales transaction. The respondent appealed to the lower Court. In its judgment, the lower Court set aside the sales transaction. The appellant appealed to this Court pursuant to the order of this Court dated 21/02/17, granting the appellant 14 days extension of time to file notice of appeal. The notice of appeal was filed on 28/2/2017. The notice of appeal contain two grounds of appeal.

At the hearing of the appeal on the 24th of February, 2022 the Court registrar informed the Court that the respondent’s counsel was served with a hearing notice via phone call on 22/2/2022 through phone number 0803 233 2085. The appellant’s counsel Abubakar Muhammad informed the Court that the respondent was duly served with the appellant’s brief, but no respondent’s brief was filed. The appellant’s counsel adopted his brief of argument filed on 24/5/2017 and deemed on 2/3/2021. From the two grounds of appeal the appellant distilled a sole issue for determination thus:
“Whether the lower Court (Shariah Court of Appeal) has the jurisdiction to entertain the appeal before it as at the time it did?

The issue for determination simpliciter is whether the lower Court has the jurisdiction to entertain the appeal. The appellant’s counsel submitted that the claim before the trial Court was for confirmation of a sale transaction of a plot of land, it has nothing to do with Islamic personal law. From a plethora of judicial authorities, it is the statement of claim at the trial Court that determines the jurisdiction of an appeal Court. He relied on the case of Gulma v. Bahago (1993) 1 NWLR (Pt. 272) 766. Learned counsel submitted that at pages 1, 2, 8, and 9 of the record of appeal it has been clearly stated by the plaintiff now appellant that he is seeking for the Court to confirm the sales transaction of a plot of land. The lower Court lacks the jurisdiction to entertain any appeal which does not involve question of Islamic personal law. He relied on the case of Korau v. Korau (1998) 4 NWLR (Pt. 545) 212 where it was held that:
“The Sharia Court of Appeal has no jurisdiction to entertain an appeal which does not raise issue of islamic personal law, it follows therefore that in such cases, it is High Court of the appropriate state that can sit in its appellate jurisdiction over the Appeal”

Learned counsel cited Section 277(2)(c) of the 1999 Constitution (as amended) which provides for the jurisdiction of the Sharia Court of Appeal. He also relied on the following cases Ziza v. Mamman (2002) 5 NWLR (Pt. 760) 243 and Garba v. Dogonyaro (1991) 1 NWLR (Pt. 165) 102.

The learned counsel submitted that any proceedings conducted without jurisdiction is a nullity. He cited the case of Umanah v. Attah (2007) All FWLR (Pt. 345) 402. He urged the Court to allow the appeal and set aside the decision of the lower Court.

Jurisdiction is the live wire of any litigation. It is fundamental and crucial to the adjudication process. It is settled law that it is the plaintiff’s claim at the trial Court that determines the jurisdiction of the Court. See Tukur v. Government of Gongola State (1989) 9 SCNJ 1; Engr. Yalaju Amaye v. Associated Engineering Contractor & Ors (1990) 6 SCNJ 149 and Adeyemi v. Opeyori (1976) 9-10 SC 31.

In the instant case from the claim of the appellant at the trial Court as reproduced earlier in this judgment, it is crystal clear that the claim was for confirmation of a sale of land transaction, which is the subject matter of this appeal. There is no doubt in the fact that it does not fall within the ambit of Section 277(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). While interpreting a similar provision under the 1979 Constitution in the case of Hassan Abuja v. Lawan Gani Bizi (1989) 5 NWLR (Pt. 119) 120/125; Uthman Mohammed, JCA (as he then was) stated thus;
“May I explain before going deeper into this judgment that this Court had made several decisions in the past, in respect of appeals coming here, the subject matter of which was a dispute between respective parties, in those cases and which were not within the definition of Islamic personal law as outlined in S. 242 of the 1979 Constitution. We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of islamic personal law, regardless of the fact that the parties signed Form AC9 or not. One of those decisions is the case of Mallam Ado and Anor v. Hajiya Dije (1984) 5 NCLR 260 at 267…”
In view of the above authorities and having regard to the claim of the plaintiff before the trial Court which is not in any way related to islamic personal law, I have no reservation or hesitation in stating the fact that the lower Court lacks the jurisdiction to entertain the appeal. Thus the judgment of the lower Court in the instant case, having been rendered without jurisdiction, it is hereby declared a nullity and accordingly set aside. The judgment of Upper Sharia Court Shahuci is hereby affirmed. The sole issue is resolved in favour of the appellant.
May I observe that at page 54 lines 6-7 of the record the appellant’s counsel who was the respondent at the lower Court, he submitted that:
“Court verified the claim and affirmed it because it was a claim seeking to affirm sales transaction not distribution of estate before USC SHAHUCI.”
From the above submission, it is absolutely clear that the lower Court simply closed its eyes to glaring facts and circumstances of this case and it assumed jurisdiction. I dare say that the lower Court was motivated by some ulterior motives other than the attainment of justice. The Khadis of the Sharia Court of Appeal are legal practitioners duly called to the Nigerian bar. They are therefore learned in both Islamic Law and Constitutional Law. They are equally conversant with the doctrine of stare decisis. Consequently having regard to the Constitutional provisions which confer jurisdiction on Sharia Court of Appeal and a plethora of Judicial authorities from this penultimate Court and the Apex Court. The Honourable Khadis would have no reason or excuse to close its eyes to these glaring facts. I shall say no more, a word is enough for the wise.
Appeal is allowed. No order as to cost.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother A. M. TALBA JCA. I agree with the reasoning and conclusion that the appeal succeeds and is hereby allowed. I abide by the consequential orders in the judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother ABUBAKAR MAHMUD TALBA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.