(2018) LPELR-45265(CA)

Transcription

1 GARBA & ANOR v. SAMINU & ANOR CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON WEDNESDAY, 11TH JULY, 2018 Suit No: CA/S/31S/2017 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO 1. ALH. SA'ADU GARBA 2. UMARU GARBA 1. ALH. YUNUSA SAMINU 2. LAWAL MANDE Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from/related to ground(s) of appeal "Before delving into the argument of counsel on the issues formulated, it is pertinent to at this juncture comment on the issue of multiplicity of actions and or abuse of Court process been canvassed by the respondent. The said issue is nowhere contain in any of the grounds of appeal. A ground of appeal is the complaint of the appellant on the judgment appealed against. Thus, grounds of appeal are the pillars on which the entire appeal stands. Just like pleadings in the commencement of an action tried on pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment or decision appealed against. See IKWEKI V. EBELE (2005) 11 NWLR (Prt 936) 397. Therefore, the issue of abuse of Court's process not being related to the judgment appealed against is to be discountenanced."per SHUAIBU, J.C.A. (Pp. 6-7, Paras. D-B) - read in context 2. ISLAMIC LAW AND PROCEDURE - COMPETENT WITNESSES: Whether parties under Islamic Law will be deemed competent witnesses in their respective claims "Issue No. 2 questions the validity of the confirmation of the parties' compromise purportedly reached by the lower Courts. Reconciliation may generally be ordered by a judge where the matter is so complex and complicated with no settled law. In the instant case, what the lower Courts did was to confirm the alleged compromise based on the statement of the parties and without hearing evidence. Unlike English law parties are not competent witnesses in their respective claims under Islamic Law. Thus, the statement of the parties in respect of the compromise or "sulh" are not evidence. See JATAU V. MAILAFIYA (2013) 1 SQLR (Prt 1) 123 at 135. In MOHAMMED V. NDANA (2013) 1 SQLR (Prt 11) 140. it was emphatically held that Courts are bound by injunction in the Holy Qur'an and Hadith of the Noble of Prophet Muhammad (SAW) to act only on admissible evidence properly adduced before it and not on conjectures. And since there was no admissible evidence properly adduced before the lower Courts, their decisions were based on conjectures."per SHUAIBU, J.C.A. (P. 10, Paras. A-F) - read in context

3 3. JURISDICTION - JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law "I have stated that an appeal does not lie from the trial Upper Sharia Court straight to this Court and therefore, the issue is whether the lower Court has jurisdiction to entertain the present appeal. There are plethora of judicial decisions that the jurisdiction of the lower Court pursuant to Section 277 (2) (a) - (e) of the 1999 Constitution is restricted to and confined to civil proceedings involving questions of Islamic Personal Law which invariably includes validity or dissolution of marriage, family relationship or guardianship of an infant, waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. It also includes any question of Islamic law regarding an infant, prodigal person or person of unsound mind who is a Muslim including the maintenance or guardianship of a Muslim who is physically or mentally infirm. The lower Court is as well conferred with jurisdiction to entertain appeal where all 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. It is well settled that the jurisdiction of the Court is determined by the claim of the plaintiff. I have reproduced the plaintiffs claim before the trial Upper Sharia Court and it cannot be disputed that the settlement and or compromise "sulh" being alluded to was in respect of possession and or occupation of a land granted by governor of Zamfara State. Judges have no duty and indeed no power to expand the jurisdiction of the Court conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. However, in the process of expounding the jurisdiction conferred on them, the Courts have always emphasized the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determined. See ODUNSI V. AMINU (1961) ALL NLR 283. In the instant case, the compromise or settlement "sulh" being referred was in relation to occupation or possession of a piece of land to which the lower Court clearly lacks jurisdiction. Where as in this case, there is a Court with jurisdiction to determine all the questions raised in the matter including the principal question, it is improper to approach a Court that is competent to determine only some of the questions. See TUKUR V. GOVT. OF GONGOLA STATE (1989) 9 SC 1 at 34."Per SHUAIBU, J.C.A. (Pp. 7-9, Paras. F-F) - read in context

4 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Sharia Court of Appeal, Zamfara State (herein after referred to as the lower Court) delivered on 30/6/2015 wherein it affirmed the decision of the Upper Sharia Court II, Gusau. The respondent as plaintiffs before the trial Upper Sharia Court, Gusau instituted an action against the defendants seeking for resolution of an agreement and or compromise entered between them. The plaintiffs claim is at page 12 of the record of appeal and it read as follows: - Yunusa Saminu & Lawali Mande Gusau are hereby on behalf of Tomotoes/Vegetables Sellers Association Gusau, Zamfara State, file the suit against Sa adu mai kalanzir and Umaru mai kalanzir for Court to summon them on behalf of their Association of kerosene sellers Association and our Tomatoes/Vegetables sellers Association to confirm a resolution or agreement reached on a land between the Tomatoes/Vegetables sellers Association, for five years. This is our suit before the Court. 1

5 The Defendants through their counsel denied the resolution and insisted that the Court should go ahead with its proceeding. After several adjournments, learned counsel for the defendants challenged the jurisdiction of the trial Court to hear and determine the subject matter of the suit. In a short ruling, the trial Court dismissed the objection, proceeded and delivered a judgment in favour of the plaintiffs at page 19 of the record of appeal thus: - Today 10/7/2012 Alkali Aminu Abdullahi Gusau U/S/C/II Gusau by the things consider (sic) above I have confirmed this compromised entered by kerosene sellers with soup ingredient sellers (sic) therefore kerosene sellers will continue to stay in soup ingredient sellers place from 2008 up to five years just this matter is ended today 10/7/2012. Dissatisfied, appellants appealed to the lower Court which affirmed the above decision and still not satisfied appellants appealed to this Court through a notice of appeal filed on 15/12/2016 containing two grounds of appeal. Distilled from the said grounds of appeal, learned appellants counsel, B. T. Aza, Esq. formulated 2

6 two issues for the determination of this appeal as follows: - 1. Whether by the provision of the Land Use Act, the Upper Sharia Court can try and entertain any matter related to and subject matter of government grant or within urban area. (Distilled from ground 1) 2. Whether in view of the peculiar facts of this case, the Courts below were right to enforce/confirm an uncertain, vague, illegal and void agreement (Distilled from ground 2). On his part, learned counsel for the respondents, Junaidu Aminu, Esq. formulated a lone issue thus: - Whether Upper Sharia Court II Gusau has jurisdiction to entertain a matter bordering on the Islamic principles of SULH. I have carefully considered the two sets of formulations but the two issues formulated by the appellants are apt and quite apposite to the just determination of the appeal. The lone issue formulated by the respondent is totally irrelevant in view of the fact that an appeal from the decision of the Upper Sharia Court does not lie to this Court till such a time when the Constitution is amended to accommodate that wishful thinking. That being the position, I shall determine this appeal in the light of the two issues formulated by the appellants. 3

7 On issues No. 1, learned appellants counsel submitted that the jurisdiction of a Court is determined by the plaintiff s claim as endorsed in the Writ of Summons and statement of claim. Therefore the lower Court lacks the jurisdiction to entertain appeals connected to a statutory grant. He submitted further that where a Court lacks jurisdiction to try principal claim, it cannot have the jurisdiction to try ancillary claim. He referred to SUN INSURANCE NIG. PLC V. UME ENGINEERING CONSTRUCTION CO. LTD (2015) 62 NSCQR (Prt 1) 505 and KAKIH V. PDP (2014) 12 SCM (Prt 2) 367. On issue No.2, learned counsel submitted that Islamic Law like any other law does not accommodate claim that are ambiguous and confusion. In further argument, learned counsel submitted that the document being relied as the basis of the decisions of the lower Courts did not describe the land in question, no sketch plan was presented and the land has no beacon numbers. All the parties are alive and yet none was called before the judgment was entered. He finally submitted that there can never be 4

8 any allocation, grant or revocation of any land without the governor s consent. Learned counsel for the respondents submitted that the plaintiffs approached the trial Court for confirmation of the amicable settlement entered by the parties known as sulh and therefore the Court of first instance was seized of jurisdiction to entertain the matter. Still in argument, learned counsel submitted that the appellants appeal to the lower Court was abinitio incompetent as the questions raised does not bother on Islamic Personal Law as envisaged by Section 277 (1) and (2) (a) to (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He referred to KORAU V. KORAU (1998) 4 NWLR (Prt 542) 212 at 207 and USMAN V. UMARU (2014) 2 SQLR (Prt 1) at 5. He referred to suits Nos. ZMS/GS/M287/2012, ZMS/GS/324/2012, ZMS/GS/11/2016 and ZMS/GS/188/2016 all before the High Courts of Zamfara State to contend that the appellants are involved in some gamble, a game of chance to get the best in judicial process. He thus submitted that this Court has the inherent powers to 5

9 dismiss the appeal based on an abuse of Court process. He referred to AGWASIM V. OJICHIE (2004) 10 NWLR (Prt 882) 3, JADESIMI V. OKOTIE-EBOH (1986) 1 NWLR (Prt 16) 264 and ENTERPRISE BANK V AROSO (2015) EJ SC (Prt 81) 79. In his reply brief learned appellants counsel submitted that multiplicity of suits is when more than one suit are simultaneously filed by same persons involving the same subject matter which is not the case here. He referred to AWOFESO V. OYENUGA (1996) 7 NWLR (Prt 460) 360 and AGWASIM V. OJICHIE (Supra). Before delving into the argument of counsel on the issues formulated, it is pertinent to at this juncture comment on the issue of multiplicity of actions and or abuse of Court process been canvassed by the respondent. The said issue is nowhere contain in any of the grounds of appeal. A ground of appeal is the complaint of the appellant on the judgment appealed against. Thus, grounds of appeal are the pillars on which the entire appeal stands. Just like pleadings in the commencement of an action tried on pleadings, parties are bound by their grounds of appeal 6

10 and are not at liberty to argue grounds not related to the judgment or decision appealed against. See IKWEKI V. EBELE (2005) 11 NWLR (Prt 936) 397. Therefore, the issue of abuse of Court s process not being related to the judgment appealed against is to be discountenanced. Having discountenanced the issue of multiplicity of actions and or abuse of Court s process, I will proceed to consider the issue of jurisdiction of the lower Court. Learned counsel on both sides are ad idem that the incompetence of the Court to entertain and determine the principal question is enough to nullify the whole proceedings and judgment as there is no room for half judgment in any matter brought before the Court. The only area of divergence is what constitutes the principal question. While the appellants argues that the principal question is the grant granted by the governor, the respondents contended that the principal question is the agreement mutually entered by the parties and thus approached the trial Court for its confirmation/enforcement. I have stated that an appeal does not lie from the trial Upper Sharia Court straight to this Court and therefore, 7

11 the issue is whether the lower Court has jurisdiction to entertain the present appeal. There are plethora of judicial decisions that the jurisdiction of the lower Court pursuant to Section 277 (2) (a) (e) of the 1999 Constitution is restricted to and confined to civil proceedings involving questions of Islamic Personal Law which invariably includes validity or dissolution of marriage, family relationship or guardianship of an infant, waqf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. It also includes any question of Islamic law regarding an infant, prodigal person or person of unsound mind who is a Muslim including the maintenance or guardianship of a Muslim who is physically or mentally infirm. The lower Court is as well conferred with jurisdiction to entertain appeal where all 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. It is well settled that the jurisdiction of the Court is determined by the claim of the plaintiff. 8

12 I have reproduced the plaintiffs claim before the trial Upper Sharia Court and it cannot be disputed that the settlement and or compromise sulh being alluded to was in respect of possession and or occupation of a land granted by governor of Zamfara State. Judges have no duty and indeed no power to expand the jurisdiction of the Court conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. However, in the process of expounding the jurisdiction conferred on them, the Courts have always emphasized the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determined. See ODUNSI V. AMINU (1961) ALL NLR 283. In the instant case, the compromise or settlement sulh being referred was in relation to occupation or possession of a piece of land to which the lower Court clearly lacks jurisdiction. Where as in this case, there is a Court with jurisdiction to determine all the questions raised in the matter including the principal question, it is improper to approach a Court that is competent to determine only some of the questions. See TUKUR V. GOVT. OF GONGOLA STATE (1989) 9 SC 1 at 34. 9

13 Issue No. 2 questions the validity of the confirmation of the parties compromise purportedly reached by the lower Courts. Reconciliation may generally be ordered by a judge where the matter is so complex and complicated with no settled law. In the instant case, what the lower Courts did was to confirm the alleged compromise based on the statement of the parties and without hearing evidence. Unlike English law parties are not competent witnesses in their respective claims under Islamic Law. Thus, the statement of the parties in respect of the compromise or sulh are not evidence. See JATAU V. MAILAFIYA (2013) 1 SQLR (Prt 1) 123 at 135. In MOHAMMED V. NDANA (2013) 1 SQLR (Prt 11) 140. it was emphatically held that Courts are bound by injunction in the Holy Qur an and Hadith of the Noble of Prophet Muhammad (SAW) to act only on admissible evidence properly adduced before it and not on conjectures. And since there was no admissible evidence properly adduced before the lower Courts, their decisions were based on conjectures. 10

14 In the light of above and considering the fact that the lower Court acted outside its jurisdiction, the entire proceedings before the lower Court is hereby struck out. The appeal against the judgment of the Upper Sharia Court II, Gusau in Suit No. CV/179/2001 is accordingly transferred to the appellate division of Zamfara State High Court being the proper venue for the hearing and determination of the said appeal. I make no order as to costs. HUSSEIN MUKHTAR, J.C.A.: I have had the honour of reading, in advance, the lead judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the entire reasoning therein for the conclusion that the appeal has merit, It is accordingly allowed. I adopt the consequential orders as made in the judgment. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the appeal as meritorious. I abide by the consequential orders made thereto. 11

15 Appearances: A. Z. Adeyi (HB of B. T. Aza) For Appellant(s) O. D. Ogunsola (HB of Julius Anthony) For Respondent(s)