(2018) LPELR-44530(CA)

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1 HABIBU & ORS v. ALELU CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO ON FRIDAY, 25TH MAY, 2018 Suit No: CA/S/109S/2014 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal ALH. HABIBU & 2 ORS - Appellant(s) And MAL. SA'IDU ALELU - Respondent(s) RATIO DECIDENDI 1. COURT - JURISDICTION: Effect of trial/proceeding conducted in the absence of jurisdiction of Court "Where as in this case, the Sharia Court of Appeal wrongly assumes jurisdiction, its judgment and the whole proceeding amount to a nullity. See MAGAJI V. DATTIJO (2013) 1 SQLR (Prt 11) 96 at 101, GAMBO V. TUKUJI (1997) 10 NWLR (Prt 526) 591 at 600 and USMAN V. KAREEM (1995) 2 NWLR (Prt 379) 537 at 551."Per SHUAIBU, J.C.A. (P. 7, Paras. B-D) - read in context

2 2. JURISDICTION - JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the Sharia Court of Appeal has jurisdiction to entertain appeals in relation to declaration of title to land "The jurisdiction of the Sharia Court of Appeal is no doubt contained in Section 277 (2) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It states as follows:- Section 277 (2) For the purpose of Subsection (1) of this Constitution, the Sharia Court of Appeal shall be competent to decide; (a) any question of Islamic Personal Law regarding a marriage conducted 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 marriage, including the validity or dissolution of that marriage or regarding family relationship, a founding or the guardianship of an infant; (c) any question of Islamic Personal Law regarding waqf, gift, will or succession, where the endower, donor, testator or deceased 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 question." I have earlier on re-stated the legal position that to determine the jurisdiction of the Court in a matter, it is the claim of the plaintiff as formulated that must be looked into. The plaintiff (now respondent) claim before the trial Upper Sharia Court, Jega is at page 1 of the record of appeal and it read as follows: "I Mal. Sa'idu Alelu is suing Alh. Habibu, Alh. Abubakar and Haruna over issue of two farms given to me by my maternal uncle. I was travelling to Borno State and I entrusted these farms to Alh. Rabi'u until I come back. Now I returned and requested for my farms. Mal. Rabi'u said the farms should be returned to me when he was alive. But these people I am suing disagree." It is clear from the above that the dispute between the parties involves title to land which is not part of the matters prescribed in Subsection (2) (a) to (e) of Section 277 of the 1999 Constitution (as amended). In MAGAJI V. MATARI (Supra), the Supreme Court Per Wali JSC observed as follows: "The jurisdiction of the Sharia Court of Appeal is confined to and limited to all questions of Islamic Personal Law regarding to the matters prescribed in Section 242 (a) to (e) of the 1999 Constitution of Nigeria 1979 (as amended) by Decree 107 of 1993)." Also in USMAN V. UMARU (1992) 7 NWLR (Prt 254) 377 Per Ogundare, JSC at page 400 held- "The Sharia Court of Appeal has no jurisdiction to entertain appeal where questions regarding Islamic Personal Law are not involved."per SHUAIBU, J.C.A. (Pp. 4-7, Paras. E-D) - read in context

3 3. JURISDICTION - JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the Sharia Court of Appeal has jurisdiction to entertain appeals in relation to declaration of title to land "I am in complete agreement that Sharia Courts of Appeal lack jurisdiction in land matters simpliciter."per MUKHTAR, J.C.A. (P. 8, Paras. E-F) - read in context 4. JURISDICTION - JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law "The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue."per OHO, J.C.A. (P. 9, Paras. B-C) - read in context 5. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Court can make pronouncements on academic/hypothetical issues "Although this Court, being an intermediate Court has a duty to give ample consideration and determine all issues placed before it, however, the said question did not arise from the proceedings of the lower Court. Thus, the appellants' second issue is hypothetical question not grounded in reality or facts. Courts assume jurisdiction only on live issues and have no jurisdiction to deal with hypothetical questions. See DICKSON V. SYLVA (2017) 10 NWLR (Prt. 1573) 299 at 321."Per SHUAIBU, J.C.A. (Pp. 7-8, Paras. E-A) - 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 Birnin Kebbi, Kebbi State delivered on the 14th February, 2012 wherein it set aside the judgment of the Upper Sharia Court, Jega, Kebbi State at page of the record of appeal thus: Based on this the U.S.C Jega decided the case by confirming the issue in dispute to the respondents. But A. Saidu is not satisfied with this decision as such he appealed. After the parties deliberation, we also took into consideration the lower Court copy of proceeding, as stated supra. We observed that A. Saidu has credible witnesses. They are Abubakar Rabi u who testified that respondents father, Rabi u told him that the farms belong to M. Sa idu and they are with him when Alh. Habibu was asked they said this testimony by the witness is as it is his testimony has truth in it. This type of witness cannot be said that he has to add with swearing on oath. This is because he confessed with the justice of the witness, he did not make any criticism against him. 1

5 As such there is no any swearing which M. Sa idu has to do because he has a witness which his opponents agrees with it. Based on the foregoing we at the Sharia Court of Appeal Kebbi State reversed the decision of U.S.C. Jega, we confirmed to M. Sa idu Alelu this farm, the Mashekari farm, it has the measurements as follows Length East to West 319fts Breath South to North 649fts. Appeal Allowed. Dissatisfied with the above, appellants appealed to this Court on 8/3/2013 through a notice of appeal containing three grounds of appeal. The said three grounds of appeal are as follows. 1. That the lower Court has no jurisdiction to hear and determine this case. 2. That the witnesses relied upon by the lower Court are not credible. 3. That the lower Court misconstrue the whole proceedings thereby deciding the case unreasonably and unjustifiably. Distilled from the above grounds of appeal, learned appellants counsel, Mahmud Adesina, Esq., formulated two issues for the determination of this appeal as follows: - 2

6 1. Whether the Sharia Court of Appeal has jurisdiction to entertain appeals relating to title to land. 2. Whether a plaintiff in action for declaration of title under Islamic Law can prove his case without proving boundaries of the land in dispute. Leaned counsel for the respondent Mrs. R. T. Mustapha on her part, identified a lone issue as follows: - Whether the Sharia Court of Appeal has jurisdiction to entertain appeals relating to title to land. On the first issue, learned appellants counsel submitted that to determine the jurisdiction of the Court, it is the claim of the plaintiff that has to be considered and examined. He further submitted that the claim of the respondent before the trial Upper Sharia Court Jega relates to competing claim of title in respect of a farmland. And that once the issue of appeal is title to land simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. He referred to Section 277 of the 1999 Constitution and the cases of BUBA V. MUSA (2007) 7 NWLR (Prt 1032) 27 at 31, MAGAJI V. MATARI (2000) 8 NWLR (Prt 670) 722 and MAISHANU V. MANU (2007) 7 NWLR (Prt 1032) 45 to the effect that the Sharia Court of 3

7 Appeal has jurisdiction only to determine questions of Islamic Personal Law regarding wakf, will or succession where the endower, donor, testator or deceased person is a Muslim. Learned counsel for the respondent conceded that the Sharia Court of Appeal lacked jurisdiction to entertain the subject of the dispute between the parties being an issue of title to land simpliciter. He submitted that the jurisdiction is the power or legal authority that enable a judge to enter into adjudication in a matter before him. Therefore, where as in the instant case, a Court takes upon itself to exercise power under adjudication which it does not possess, its decision tantamount to nothing. He cited and relied on the cases of PETER OBI V. INEC (2007) 45 WRN 9, MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 959 and LADOJA V. INEC (2007)12 NWLR (Prt 1047) 119 at 131. The jurisdiction of the Sharia Court of Appeal is no doubt contained in Section 277 (2) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It states as follows:- Section 277 (2) For the purpose of Subsection (1) of this Constitution, the Sharia Court of Appeal shall be competent to decide; 4

8 (a) any question of Islamic Personal Law regarding a marriage conducted 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 marriage, including the validity or dissolution of that marriage or regarding family relationship, a founding or the guardianship of an infant; (c) any question of Islamic Personal Law regarding waqf, gift, will or succession, where the endower, donor, testator or deceased 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 question. 5

9 I have earlier on re-stated the legal position that to determine the jurisdiction of the Court in a matter, it is the claim of the plaintiff as formulated that must be looked into. The plaintiff (now respondent) claim before the trial Upper Sharia Court, Jega is at page 1 of the record of appeal and it read as follows: I Mal. Sa idu Alelu is suing Alh. Habibu, Alh. Abubakar and Haruna over issue of two farms given to me by my maternal uncle. I was travelling to Borno State and I entrusted these farms to Alh. Rabi u until I come back. Now I returned and requested for my farms. Mal. Rabi u said the farms should be returned to me when he was alive. But these people I am suing disagree. It is clear from the above that the dispute between the parties involves title to land which is not part of the matters prescribed in Subsection (2) (a) to (e) of Section 277 of the 1999 Constitution (as amended). In MAGAJI V. MATARI (Supra), the Supreme Court Per Wali JSC observed as follows: The jurisdiction of the Sharia Court of Appeal is confined to and limited to all questions of Islamic Personal Law regarding to the matters prescribed in 6

10 Section 242 (a) to (e) of the Constitution of Nigeria 1979 (as amended) by Decree 107 of 1993). Also in USMAN V. UMARU (1992) 7 NWLR (Prt 254) 377 Per Ogundare, JSC at page 400 held- The Sharia Court of Appeal has no jurisdiction to entertain appeal where questions regarding Islamic Personal Law are not involved. Where as in this case, the Sharia Court of Appeal wrongly assumes jurisdiction, its judgment and the whole proceeding amount to a nullity. See MAGAJI V. DATTIJO (2013) 1 SQLR (Prt 11) 96 at 101, GAMBO V. TUKUJI (1997) 10 NWLR (Prt 526) 591 at 600 and USMAN V. KAREEM (1995) 2 NWLR (Prt 379) 537 at 551. The appellants second issue for determination is whether a plaintiff in an action for declaration of title under Islamic Law can prove his case without proving boundaries of the land in dispute. Although this Court, being an intermediate Court has a duty to give ample consideration and determine all issues placed before it, however, the said question did not arise from the proceedings of the lower Court. Thus, the appellants second issue is hypothetical question not 7

11 grounded in reality or facts. Courts assume jurisdiction only on live issues and have no jurisdiction to deal with hypothetical questions. See DICKSON V. SYLVA (2017) 10 NWLR (Prt. 1573) 299 at 321. From the foregoing analysis, the lower Court acted outside its jurisdiction when it heard appeal from the Upper Sharia Court, Jega on a matter involving title to land. The appeal is meritorious and is hereby allowed. The judgment of the Sharia Court of Appeal, Birnin Kebbi Division, Kebbi State delivered on 14/2/2012 is void for want of jurisdiction. It is accordingly struck out. The appeal against the judgment of the Upper Sharia Court, Jega in Suit No. USC/JG/CV/F1/106/2011 is hereby transferred to the appellate Section of the High Court of Kebbi State for proper adjudication. Parties to bear their respective costs. HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in draft, the lead judgment of my learned brother M. L. Shuaibu, JCA. I am in complete agreement that Sharia Courts of Appeal lack jurisdiction in land matters simpliciter. The appeal has merit and is accordingly allowed by me. 8

12 I also subscribe to the consequential orders made in the judgment. FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the Judgment of my learned Brother MUHAMMED LAWAL SHUAI BU, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal. The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue. The dispute in the instant case is predicated upon a claim of title to farmlands. The Appeal having been adjudged meritorious, consequently, the judgment of the Kebbi State Shari a Court of Appeal, delivered on the is void for want of jurisdiction and it is struck out. The appeal against the judgment of the Upper Shari a Court, Jega in suit number USC/JG/CV/F1/109/2011 is hereby transferred to the Appeal section of the High Court of Kebbi State for determination and trial as that is the proper forum for the hearing of that Appeal. There shall be no orders as to cost. 9

13 Appearances: For Appellant(s) P. S. Ntem (HB R.T. Mustapha) For Respondent(s)

(2018) LPELR-45450(CA)

(2018) LPELR-45450(CA) 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