(2018) LPELR-44127(CA)

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1 BADABAI v. ALJANNA CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON WEDNESDAY, 28TH MARCH, 2018 Suit No: CA/S/65S/2017 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal BAKO ZUMBAI BADABAI - Appellant(s) IBRAHIM MAGAWATA ALJANNA And RATIO DECIDENDI - Respondent(s)

2 1. 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 Appellant formulates the following lone issue for determination; Whether the lower Court has Jurisdiction to entertain an Appeal on issue of declaration of title to land? (this issue distilled from ground 1) It was submitted for the Appellant that the lower Court lacks jurisdiction regarding the subject matter of the action, which is premised upon title to land and no question of Islamic Personal Law was raised in the Appellant's claim against the Respondent. It was argued that jurisdiction is synonymous with the competence, authority or power of a Court to deal with the matter in controversy whether civil or criminal. See MUSACONI LTD VS ASPINALL (2013) 54 NSCQR p. 363 at 387 where it was held thus; "Generally, the word 'jurisdiction' means the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. See: MOBIL PRODUCTION NIGERIA LIMITED Vs LAGOS STATE ENVIROMENTAL PROTECTION AGENCY (2002) 14 SCNJ 167 at 179." The question when a Court becomes competent to adjudicate over a matter brought before it for adjudication, has long been settled and needs no further controversy. In MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 at 595 per Bairamiam FJ as follows: "A Court is competent when; (a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; (b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; (c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction." The provision of Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) clearly provides thus; "(1) The Sharia Court of Appeal of a State shall in addition to such other jurisdiction as may be conferred upon to it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provision of Subsection (2) of this section. (2) For the purpose of Subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide; (a) Any matter question of Islamic personal law regarding a marriage concluded 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 proceeding are muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship 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 infant, prodigal or person of unsound mind, who is a Muslim, physically or mentally infirm; (e) where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the first instance to determine the case in accordance with Islamic Personal Law, any other question." It was submitted for the Appellant that it is clear from the above constitutional provision that the Kebbi State Sharia Court of Appeal lacks jurisdiction in respect of matters relating to declaration of title to land. See USMAN VS KAREEM (1995) 2 NWLR (pt. 379)537, GARBA VS DOGON YARO (1991) 1 NWLR (pt. 165) 102, MALLAM GAMBO VS JAURA HAMMADU TUKUJI (1997) 10 NWLR (pt. 526) 526 at 600. Thus, the Appellant's claim as contained in the statement of claim before the trial Court was based on declaration of title to a farmland emanating from the Appellant's father who, on the one hand, being the original owner ought to have been a party to the proceedings himself and if he is dead, on the other, the dispute would touch on the estate of a deceased Muslim. There is no question of inheritance raised or asserted in the Appellant's claim, and no question of Islamic personal law as enumerated under Section 277 (2) (a) -(e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which the Court below has jurisdiction to entertain. It is clear that the Appellant's claim at trial Court was the claim of title or ownership to land, which is outside the jurisdiction of the Court below. See also MUNINGA Vs MUNINGA (1997) 1 1 NWLR (PT. 527) 1 AT 12; JABIR MALLAM GAMBO Vs JAURO HAMMADU TUKUJI (1997) 10 NWLR (PT. 526) 591 AT 600; USMAN Vs KAREEM (SUPRA) AT PG Thus, where a Court of law entertains a matter bordering on jurisdiction especially on the applicable law, the facts and evidence adduced must be clearly appraised. One wonders why the status of the Appellant's father was clouded in the narration of facts and the grounds of appeal. In result, it dims my view towards determination of the lower Court's jurisdiction as there seems to be nothing in the record indicating whether or not the claim was founded upon the application of the principles of Islamic law within the scope of Section 277 of the Constitution. See MUSACONI LTD VS ASPINALL (2013) 45 NSCQR (pt. 1) page In the absence of clear evidence, the Court cannot speculate regarding the life or death of the Appellant's father, the original owner of the land in dispute, which may be relevant in determining the jurisdiction of the Court below. In the circumstances, the matter cannot be said to be within or without the jurisdiction of the Court below. The singular issue is partly resolved in favour of the Appellant to the extent that the judgment entered by the lower Court is unsupportable by the Section 277(1) and (2)(a) to (e) of the Constitution." Per MUKHTAR, J.C.A. (Pp. 2-8, Paras. E-A) - read in context

4 HUSSEIN MUKHTAR, J.C.A.(Delivering the leading Judgment): This is an Appeal against the judgment of the Kebbi State Sharia Court of Appeal sitting at Birnin Kebbi delivered on 22nd February 2017, coram; Hon. Dr. Tukur Sani Argungu (Kadi), Hon. Alh. Abubakar Magaji Vole (kadi), Hon. Alh. Bawa Bello Dakin Gari (kadi). The Court below affirmed the judgment of the Upper Sharia Court 2, Birnin Kebbi in suit No USC/II/BK/CVA/ IBRAHIM MAGAWATA ALJANNA VS BAKO ZUMBAI BADABAI. The Appellant sued the Respondent before Sharia Court Birnin Kebbi for declaration of title to a farmland which he claimed was given to the Respondent on loan by the Appellant s father on condition that two bags of groundnut would be given to his father at each harvest. When the claim was read, the Respondent claimed that he bought the farmland in dispute from the Appellant's father. After hearing both the parties, the Appellant took oath and the trial Court entered Judgment in favour of the Appellant by declaring title to the farmland in dispute as belonging to him. Dissatisfied with the judgment the Respondent Appealed to the Upper Sharia Court Argungu 1

5 and later the matter was transferred to Upper Sharia Court 2 Birnin Kebbi, after hearing both the parties the Court set aside the judgment of the trial Court and declared title of the farmland in dispute to the Respondent. Dissatisfied with the Judgment the Appellant appealed to the Court below, which dismissed the appeal and affirmed the judgment of the Upper Sharia Court 2 Birnin Kebbi. Hence, this Appeal founded on the following four grounds: 1. The lower Court lack Jurisdiction to entertain an appeal on issue of declarations of title to land. 2. That the lower Court erred in law when it affirmed the decision of Upper Sharia Court 2 Birnin Kebbi admitted and relied on inadmissible evidence. 3. That lower Court erred in law when it affirmed the decision of the Upper Sharia Court 2 Birnin Kebbi which was not based on any reason known to law. 4. The judgement of the lower Court is against the weight of evidence. The Appellant formulates the following lone issue for determination; Whether the lower Court has Jurisdiction to entertain an Appeal on issue of declaration of title to land? (this issue distilled from ground 1) 2

6 It was submitted for the Appellant that the lower Court lacks jurisdiction regarding the subject matter of the action, which is premised upon title to land and no question of Islamic Personal Law was raised in the Appellant s claim against the Respondent. It was argued that jurisdiction is synonymous with the competence, authority or power of a Court to deal with the matter in controversy whether civil or criminal. See MUSACONI LTD VS ASPINALL (2013) 54 NSCQR p. 363 at 387 where it was held thus; "Generally, the word jurisdiction means the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. See: MOBIL PRODUCTION NIGERIA LIMITED Vs LAGOS STATE ENVIROMENTAL PROTECTION AGENCY (2002) 14 SCNJ 167 at 179." The question when a Court becomes competent to adjudicate over a matter brought before it for adjudication, has long been settled and needs no further controversy. In MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 at 595 per Bairamiam FJ as follows: "A Court is competent when; (a) it is properly constituted as regards number 3

7 and qualification of members of the bench, and no member is disqualified for one reason or another; (b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; (c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The provision of Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) clearly provides thus; (1) The Sharia Court of Appeal of a State shall in addition to such other jurisdiction as may be conferred upon to it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provision of Subsection (2) of this section. (2) 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 that law, "including a 4

8 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 proceeding are muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship 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 infant, prodigal or person of unsound mind, who is a Muslim, physically or mentally infirm; (e) where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the first instance to determine the case in accordance with Islamic Personal Law, any other question." It was submitted for the Appellant that it is clear from the above constitutional provision that the Kebbi State Sharia Court of Appeal lacks jurisdiction in respect of matters relating to declaration of title 5

9 to land. See USMAN VS KAREEM (1995) 2 NWLR (pt. 379)537, GARBA VS DOGON YARO (1991) 1 NWLR (pt. 165) 102, MALLAM GAMBO VS JAURA HAMMADU TUKUJI (1997) 10 NWLR (pt. 526) 526 at 600. Thus, the Appellant s claim as contained in the statement of claim before the trial Court was based on declaration of title to a farmland emanating from the Appellant s father who, on the one hand, being the original owner ought to have been a party to the proceedings himself and if he is dead, on the other, the dispute would touch on the estate of a deceased Muslim. There is no question of inheritance raised or asserted in the Appellant s claim, and no question of Islamic personal law as enumerated under Section 277 (2) (a) -(e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which the Court below has jurisdiction to entertain. It is clear that the Appellant s claim at trial Court was the claim of title or ownership to land, which is outside the jurisdiction of the Court below. See also MUNINGA Vs MUNINGA (1997) 1 1 NWLR (PT. 527) 1 AT 12; JABIR MALLAM GAMBO Vs JAURO HAMMADU TUKUJI (1997) 10 NWLR (PT. 526) 591 AT 600; USMAN Vs 6

10 KAREEM (SUPRA) AT PG Thus, where a Court of law entertains a matter bordering on jurisdiction especially on the applicable law, the facts and evidence adduced must be clearly appraised. One wonders why the status of the Appellant s father was clouded in the narration of facts and the grounds of appeal. In result, it dims my view towards determination of the lower Court s jurisdiction as there seems to be nothing in the record indicating whether or not the claim was founded upon the application of the principles of Islamic law within the scope of Section 277 of the Constitution. See MUSACONI LTD VS ASPINALL (2013) 45 NSCQR (pt. 1) page In the absence of clear evidence, the Court cannot speculate regarding the life or death of the Appellant s father, the original owner of the land in dispute, which may be relevant in determining the jurisdiction of the Court below. In the circumstances, the matter cannot be said to be within or without the jurisdiction of the Court below. The singular issue is partly resolved in favour of the Appellant to the extent that the judgment entered by the lower Court is unsupportable by 7

11 Section 277(1) and (2)(a) to (e) of the Constitution. The appeal partly succeeds and is allowed in part. The judgment of the lower Court delivered on the 22nd February 2017 wherein the Court below affirmed the judgment of the Upper Sharia Court 2 Birnin Kebbi in suit No USC/II/BK/CVA/2016 IBRAHIM MAGAWATA ALKANNA VS BAKO ZUMBAI BADABAI is accordingly set aside. In the stead thereof, I hereby send the case back to the Kebbi State Sharia Court of Appeal for a rehearing by a differently constituted panel of the Court by considering and clearly pronouncing on the status of the Appellant s father who originally owns the piece of land in dispute. By this order, the learned Kadis who determined the appeal, from the Upper Sharia Court 2 Birnin Kebbi, on 22nd February 2017 have been excluded. The parties shall bear their respective costs. MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in advance, the judgment just read by my learned brother, Hussein Mukhtar, JCA and I fully agree with it. The appeal succeed and it is accordingly allowed by me. I abide by the 8

12 consequential orders. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned brother, Hussein Mukhtar, JCA just delivered and I am in agreement with his reasoning and conclusion in allowing the appeal. I abide by all the consequential orders of the court. 9

13 Appearances: Nasiru S. Gulma, Esq. holding the brief of Sanusi Sama'ila, Esq. For Appellant(s) not represented but was personally served with Hearing Notice on 26/01/2018. For Respondent(s)

(2018) LPELR-45267(CA)

(2018) LPELR-45267(CA) LIYAFA v. KYAUTA 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/41S/2017 MUHAMMED LAWAL SHUAIBU FREDERICK