(2018) LPELR-45450(CA)

Transcription

1 IBRAHIM & ANOR v. YARBAWA CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO ON FRIDAY, 13TH JULY, 2018 Suit No: CA/S/111S/2017 Before Their Lordships: Between 1. SANUSI IBRAHIM 2. USMAN MU'AZU (APPEALING AS MAGADAN HAJIYA DIJE) ISHAQA SARKIN YARBAWA And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. JURISDICTION - JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the Sharia Court of Appeal has jurisdiction over question of ownership of a house "It was argued that the Court below lacks the requisite jurisdiction to hear and determine Appeal No. SCA/GW /36/2G1f5 as it has fallen outside its constitutional power. The learned counsel for the Appellant cited the provision of Section 277 (2) of the Constitution Federal Republic of Nigeria, (1999) (as amended) which reads, thus; "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 the law, including a question relating to the validity or dissolution of such marriage or 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, a marriage, including the validity or dissolution of that marriage, or regarding a family relationship, a founding or the guardianship of an infant. c) any question of Islamic Personal Law regarding 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 proceeding being Muslims, have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law, other question." The above constitutional provision has been interpreted in a plethora of authorities. In the case of Magaji Vs Dattijo (Supra), Justice Dalhatu Adamu, JCA (of blessed memory) observed thus: "it is trite that the lower Court (i.e Shari'a Court of Appeal) has no jurisdiction in a land dispute where the claim is on the title or ownership of the land in dispute simpliciter unless if the land in dispute involves or raises one of the questions of the paragraphs of Section 277 (2) (a) - (e). Where the Shari'a Court of Appeal wrongly assumes jurisdiction as in the instance case, its judgment and the whole proceeding amount to a nullity" In the case under consideration, the claim of the plaintiff shows that it is based on a simple claim of title to land. This is because the Plaintiff Hajiya Hadiza Abdullahi (now Late) claimed against the Defendant for the recovery of a house and Farmland located at Ilela Local Government of Sokoto State. The Defendant, however, asserted that the Plaintiff gave him the house as gift while the farmland was sold, on her (Plaintiff) instruction, to the Defendant/Respondent. (See pages 3-4 of the Record of Appeal). The claim of the plaintiff (for ease of reference) as seen on pages 3-4 of the Record of Appeal reads thus: "I, Hajiya Hadiza Abdullahi raise a suit against lshaka Sarkin Yarbawa Illela before this Court seeking it to cause said Ishaka Sarkin Yarbawa to relinquish... my house which he is making effort to convert as his personal property." From the above quoted statement of claim, it is very clear that there is no question of inheritance or Islamic personal law raised therein as perceived under Section 277 (2) (a)-(e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, the claim of the Appellant at trial Court was predicated upon title or ownership to a house, which is outside the jurisdiction of the Court below. See also Muninga Vs Muninga (1997) 11 NWLR (Pt. 527) 1 at 12, Jibir Mallam Gambo Vs Jauro Hammadu Tukuji (1997) 10 NWLR (Pt. 526) 591 at 600 and Usman Vs Kareem (supra) at Pg. 541."Per MUKHTAR, J.C.A. (Pp. 4-8, Paras. F-A) - read in context

3 2. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: When an objection to the jurisdiction of Court can be raised "The law is settled that an issue of jurisdiction can be raised at any stages of proceedings, even for the first time on appeal because of its fundamental and crucial nature. It is a threshold issue, the absence of which will render any decision no matter how sound or admirable it otherwise would be, as null and void. See the cases of SLB Consortium Ltd Vs Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at pg. 335 SC and Sule Vs Kabir (2011) 2 NWLR (Pt. 1232) 515 at 524 CA."Per MUKHTAR, J.C.A. (P. 8, Paras. A-C) - read in context

4 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Shari'a Court of Appeal Sokoto State in the Appeal No. SCA/GW/36/2015 delivered on 23rd March 2016, corum;hon. Grand Khadi Alhaji Abdulkadir S. Tambuwal, Hon. Khadi Muhammadu Tambari Usman and Hon Khadi Dahiru A. Danjega. The original Plaintiff Hajiya Hadiza Abdullahi (now late) instituted an action before before the trial Shari'a Court Illela against the Defendant/Respondent Alhaji Ishaqa Sarkin Yarbawa for the return of her House, Farmland and proceeds from the sale of her cattle. The Defendant/Respondent in denying the claim stated that the claims were concocted by the Appellant to vilify him. Four different documents dated 4th May 2011, 23rd October 2012, 4th May 2011 and 28th October 2012 were tendered and one witnesses - Alh Mamman Danyaya gave evidence in support of the gift. The trial Court then delivered its judgment dismissing the claim of the Plaintiff. Being dissatisfied with the Judgment of the trial Court, the Appellant Hajiya Dije Illella appealed to the Upper Shari'a 1

5 Court Gwadabawa, which after hearing the appeal upturned part of the trial Court's Judgment and finally dismissed the Appeal. The Appellant still being dissatisfied with the judgment of the Upper Sharia Court Gwadabawa, further appealed to the Sokoto State Shari'a Court of Appeal, (herein referred as the Court below ) on five grounds of Appeal. However, while the Appeal was pending the Appellant died and was consequently substituted with the current Appellants. The Court below, in its judgment delivered on 23rd March 2016, affirmed the judgment of the Upper Shari a Court Gwadabawa and dismissed the Appeal. Being dissatisfied with the Judgment of the Court below, the Appellants further Appeal to this Court vide a Notice of Appeal filed on 12th May 2016 on the following twin grounds: 1. The Court below erred in law when it entertained Appeal No. SCA/GW/36/2015 on the issue (in respect of) which it has no jurisdiction. PARTICULARS OF ERROR: i. By the provision of Section 277(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As 2

6 Amended) the jurisdiction of the Shari'a Court of Appeal is limited to matters on Islamic Personal Law. ii. The issue contained in the Appeal No. SCA/GW /36/2015 does not fall within the subjects itemized under Section 277(2) Constitution of the Federal Republic of Nigeria, 1999 (As Amended). iii. The matter subject of Appeal No. SCA/GW/36/2015 simply relates to the issue of ownership to portion of landed property. 2. The Court below erred in law when it affirmed the decision of the Upper Shari'a Court when it did not properly evaluate and scrutinize the (evidence) adduced by the Defendant (herein referred as Respondent) at the trial Court which formed the basis of its decision (and that of the trial Court). From the foregoing 2 (two) grounds of appeal, the Appellants formulated the following two issues for determination: i. Whether the Court below has the requisite jurisdiction to hear and determine the Appeal before it in this case in view of the provision of Section 277 (2) (a) - (e) of the Constitution Federal Republic of Nigeria, 1999 (As Amended). (Distilled from Ground 1 of the Notice of Appeal). ii. Whether the Court Below was right, when it 3

7 affirmed the decision of the Upper Shari'a Court Gwadabawa (thereby occasioning) a Miscarriage of justice. (Distilled from Grounds 2 of the Notice of Appeal). Issue One: Arguing the first issue, the learned counsel for the Appellant submitted that the Court below lacks the requisite jurisdiction to hear and determine the Appeal before in this case in view of the provision of Section 277 (2) (a) - (e) of the Constitution Federal Republic of Nigeria, 1999 (As Amended). It was argued for the Appellant that the jurisdiction of a Court is determined by the claim of the Plaintiff rather than the defence of the Defendant. Thus, in ascertaining the jurisdiction of the Court, it is the plaintiff's claim in the writ of summons or the statement of claim that has to be looked at, to see whether the Court seized of the matter has the required jurisdiction over the parties or the subject matter of the dispute between the parties. See Magaji Vs Dattijo (2013) 1 SQLR (Pt. 11) 96 CA. See also Usman Vs Kareem (1995) 2 NWLR (Pt. 379) 537 at 551. It was argued that the Court below lacks the requisite jurisdiction to hear and determine Appeal No. SCA/GW 4

8 /36/2G1f5 as it has fallen outside its constitutional power. The learned counsel for the Appellant cited the provision of Section 277 (2) of the Constitution Federal Republic of Nigeria, (1999) (as amended) which reads, thus; "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 the law, including a question relating to the validity or dissolution of such marriage or 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, a marriage, including the validity or dissolution of that marriage, or regarding a family relationship, a founding or the guardianship of an infant. c) any question of Islamic Personal Law regarding 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 5

9 Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or e) where all the parties to the proceeding being Muslims, have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law, other question." The above constitutional provision has been interpreted in a plethora of authorities. In the case of Magaji Vs Dattijo (Supra), Justice Dalhatu Adamu, JCA (of blessed memory) observed thus: "it is trite that the lower Court (i.e Shari'a Court of Appeal) has no jurisdiction in a land dispute where the claim is on the title or ownership of the land in dispute simpliciter unless if the land in dispute involves or raises one of the questions of the paragraphs of Section 277 (2) (a) - (e). Where the Shari'a Court of Appeal wrongly assumes jurisdiction as in the instance case, its judgment and the whole proceeding amount to a nullity" In the case under consideration, the claim of the plaintiff shows that it is based on a simple claim of title to land. This is because the Plaintiff Hajiya Hadiza Abdullahi (now Late) claimed against the Defendant for the recovery of a house 6

10 and Farmland located at Ilela Local Government of Sokoto State. The Defendant, however, asserted that the Plaintiff gave him the house as gift while the farmland was sold, on her (Plaintiff) instruction, to the Defendant/Respondent. (See pages 3-4 of the Record of Appeal). The claim of the plaintiff (for ease of reference) as seen on pages 3-4 of the Record of Appeal reads thus: "I, Hajiya Hadiza Abdullahi raise a suit against lshaka Sarkin Yarbawa Illela before this Court seeking it to cause said Ishaka Sarkin Yarbawa to relinquish my house which he is making effort to convert as his personal property. From the above quoted statement of claim, it is very clear that there is no question of inheritance or Islamic personal law raised therein as perceived under Section 277 (2) (a)- (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, the claim of the Appellant at trial Court was predicated upon title or ownership to a house, which is outside the jurisdiction of the Court below. See also Muninga Vs Muninga (1997) 11 NWLR (Pt. 527) 1 at 12, Jibir Mallam Gambo Vs Jauro Hammadu 7

11 Tukuji (1997) 10 NWLR (Pt. 526) 591 at 600 and Usman Vs Kareem (supra) at Pg The law is settled that an issue of jurisdiction can be raised at any stages of proceedings, even for the first time on appeal because of its fundamental and crucial nature. It is a threshold issue, the absence of which will render any decision no matter how sound or admirable it otherwise would be, as null and void. See the cases of SLB Consortium Ltd Vs Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at pg. 335 SC and Sule Vs Kabir (2011) 2 NWLR (Pt. 1232) 515 at 524 CA. In view of the foregoing appraisal, the 1st issue for determination is resolved in favour of the Appellants. Also in view of this resolution of issue one, the second issue becomes otiose. The entire appeal becomes incompetent in the absence of jurisdiction and the second issue is reduced to a total insignificance. The appeal succeeds on issue one and is hereby allowed. The judgment of the lower Court delivered on 23rd March 2016 is hereby struck out for incompetence. Accordingly, the appeal from Upper Shari s Court Gwadabawa delivered on 9th July 2015 is hereby 8

12 referred to the Appellate division of the High Court of Sokoto State as the right forum to hear and determine the appeal. The appellants shall, however, pay costs of Fifty Thousand Naira to respondent for taking the appeal to a wrong forum. MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in advance the judgment of my learned brother, Hussein Mukhtar, JCA allowing the appeal, striking out the judgment of the lower Court and remitting the appeal from Upper Sharia Court, Gwadabawa delivered on 9/7/2015 to the appellate division of the High Court of Sokoto State being the proper forum. I adopt the reasoning and conclusion reached thereat. FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of the Court below just delivered and I am in agreement with the reasoning and conclusions reached that the appeal has merit and that it is according allowed. I subscribe to all other consequential orders made thereto. 9

13 Appearances: M. U. Uwais, Esq. For Appellant(s) Mohammed Adeleke, Esq. with him, E. N. Longbis, Esq. For Respondent(s)