Rugga Kwatte V. Maigari Isah (1998)
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MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal delivered on the 24th January. 1995 hereinafter called the court below.
In the Upper Area Court Argungu, herein referred to as the trial court, the plaintiff, now appellant, sued the defendant/respondent herein claiming for a declaration of title and ownership of the farmland, in dispute and got judgment. The respondent appealed to the court below sitting at Birnin Kebbi which court allowed the appeal and set aside the judgment of the trial court. The appellant then appealed against the decision of the court below and filed a notice of appeal, the amended notice of appeal contains four grounds of appeal thus:-
- The Sharia Court of Appeal, Birnin Kebbi lacks jurisdiction to entertain the appeal.
Particulars
(a) The dispute regarding title to and ownership of a farm land are not matters bordering on inheritance of the farm land.
(b) The appellant and the respondent are not common heirs to the farm land.
(c) The Sharia Court of Appeal, Birnin Kebbi has jurisdiction over Islamic personal laws only.
- The judgment of the Sharia Court of Appeal is against the weight of evidence adduced before the Upper Area Court which the Sharia Court of Appeal was bound to uphold.
Particulars
(a) The Sharia Court of Appeal failed to evaluate properly evidence of the parties before it as to credibility of witnesses whereas it is not a trial court.
(b) The Sharia Court of Appeal refused to find upon the judgment of the Upper Area Court Yeldu on the land previously which is before it but instead went on frolic of its own.
- The Sharia Court of Appeal Birnin Kebbi erred in law by giving the respondent oath during the hearing of the appeal.
Particulars
(a) Complimentary oath is given only when a witness has a credible witness (sic) but not sufficient to discharge the burden as required by the Sharia and this at hearing by the trial court not on appeal.
(b) It was wrong to offer the oath on appeal.
- The Sharia Court of Appeal erred in law by introducing and admitting fresh facts not raised by the parties at the trial court.
Particulars
(a) The Sharia Court of Appeal, Birnin Kebbi embarked upon measurement of the farm land whereas there is no doubt, ambiguity or conflict as location or size of the farm land in Issue.
(b) The court uses the result of the measurement to over-rule the lower court (Upper Area Court Argungu) whereas the issue of size was not contested by the parties at the trial.”
At the hearing of this appeal it was clear that the respondent refused to engage the services of a counsel. He chose to appear in person.
Learned counsel for the appellant then informed this court that he has filed an appellant’s brief of argument which was deemed filed on 10/12/96. He stated that he is placing heavy reliance on that brief. He then adopted same and added nothing. He then urged us to allow the appeal since the court below i.e. Sharia Court of Appeal Kebbi State has no jurisdiction to entertain an appeal from the lower court based on claim of ownership of a farm land which has not bordered on Islamic personal law.
The learned appellant’s counsel has out of four grounds filed formulated four issues for the determination of this appeal.
It is settled law that where an issue of jurisdiction has been raised by any party the court should firstly dispose of it one way or the other before it proceeds to consider other issues.I wish to state that issues (a) and (b) in the appellant’s brief seemed to me almost identical. I will therefore, in this judgment, treat them together.
It is a fundamental issue that where an issue of jurisdiction has been properly raised a court of law shall timeously address its mind to it and resolve same one way or the other. Because an issue of whether a court has jurisdiction to entertain certain matter generally touches on the competence of that court to adjudicate. It goes without saying also that a defect in the competence or jurisdiction of the court is fatal and it renders the whole proceedings a nullity no matter how brilliantly or well conducted – Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Labanan v. Okoye (1995) 4 NWLR (pt.389) 303.I will therefore try and thrash out this issue of jurisdiction of the court below before considering the other issues, not because other issue are not important rather that issue of jurisdiction of a court is far important than others. This is clearly stated in the case of: Governor, Anambra State v. Anah (1995) 8 NWLR (Pt.412) 213; Faloughi v. Faloughi (1995) 3 NWLR (pt.384) 434; and Bakule v. Fanerewa (Nig) ltd (1995) 2 NWLR (pt.380) 728.
The Sharia Court of Appeal in the country derive their jurisdiction from the provisions of section 242(1) and (2) of the 1979 Constitution of the Federal Republic of Nigeria as amended by Decree No. 107 of 1993. Before the introduction of the amendment through Decree No.107 supra the jurisdiction of the Sharia Court of Appeal is restricted to the matters affecting “Islamic personal law”.Anything outside Islamic personal law the Sharia Court of Appeal would lack jurisdiction to entertain. The amendment deleted the word “personal” and left “Islamic law” simpliciter. However the provisions of section 242(2)(a)-(e) were left intact. That being the case, the question being asked is whether by the deleted of the word “personal” in the Decree No.107 supra jurisdiction of the Sharia Court of Appeal is thereby enhanced, enlarged and increased? Or was it left as it were before the said amendment? In other words, the jurisdiction of the Sharia Court of Appeal before the 1993 amendment which was restricted to the Islamic law of inheritance and succession in now widened to include other matters not connected with purely Islamic personal law.
It is my view that since the provisions of S.242(2) of the 1979 Constitution has not drastically changed by the amendment in the Decree No. 107 of 1993 the deletion of the word personal therein does not go any further. The position remains the same as before the said amendment. The law, I should hold, is that where a statement of claim of the claimant at the trial court depicts a claim relating to Islamic personal law then the Sharia Court of Appeal can perfectly assume jurisdiction. See Abuja v. bizi (1989) 5 NWLR (Pt.119) 120 at p.128; Garba v. Dongo-Yaro (1989) 1 NWLR (pt.165) 102; Tumfafi v. Meresno (1993) 1 NWLR (pt.269) 387 at 380; and Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517.
For the evidence of any possible doubt the law is that in land matters the Sharia Court of Appeal have their jurisdiction restricted to matters or cases where questions of Islamic personal law are involved which are specific questions on Waqf, gift, will or succession where the endower, donor testator or deceased person is or was a Muslim, See. S.242(2)(c) of the 1979 Constitution supra. See also the Supreme Court decision in the case of Usman v. Kareem (1995) 2 NWLR (Pt.379) 537 at 552.Having considered the claim of the plaintiff at the trial court which was a declaration of title and ownership of the farm land I believe this does not have anything to do with Islamic personal law or even Islamic law for that matter. It is clear from the evidence so far adduced and the records of proceedings of all the two lower courts that the parties are not in any way bloodily related. There was therefore no question of succession or inheritance in accordance with the Islamic personal law. I recall what I stated in 1997 when dealing with a similar situation in an attempt to define both Islamic personal law and Islamic law. I said this:-
“There is what I used to think is merely academic argument to the effect that in Decree No. 107 of 1993 the word “personal” has been deleted leaving the phrase “Islamic law”. Whether it enlarges the jurisdiction of the Sharia Court or Appeal in the country. Because Islamic law definitely is over and above Islamic personal law. The former includes all aspects or Islamic civil matters plus criminal law while the latter is restricted to Islamic personal law as provided by section 242(2) (a)-(b) or the 1979 Constitution of the Federal Republic of Nigeria as amended”
See unreported appeal in suit No. CA/J/65/s/94 delivered in Jos on 8th of September, 1997 by Muntaka-Coomassie, J.C.A. supported by Okunola and Adamu, JJCA.
Having therefore considered the submissions of the learned counsel for the appellant I hold that there is a lot of merits in this appeal it is hereby allowed. The court below lacks jurisdiction to entertain this matter since even the trial court has no jurisdiction to hear a case of declaration of title to land. The decision of the Shari a Court of Appeal of Kebbi State is a nullity. The jurisdiction of the Sharia Courts of Appeal throughout this country is at the moment, being governed by the provisions of section 242(2) of the 1979 Constitution as amended. Even though between 1979-1993 up to 1995 there were some instances of legislative interpretations nonetheless the position remains the same. The legal conclusion is that once the issue on appeal is title to land, or ownership of land or thing simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. It is the High Court of a State that can entertain same. Since I have taken a stance that because of lack of jurisdiction the court below decision is a nullity there is no good cause for me to consider other issues distilled from the grounds of appeal filed. The appeal herein can therefore be decided in limine and disposed of neatly without other issues. Because any future considerations of the remaining issue would tantamount of sheer waste of this Court precious lime. Appeal is therefore allowed.
The decision of the court below is set aside. The appeal is remitted hack to the Chief Judge of Kebbi State for necessary assignment to a competent court for hearing.
Parties are to bear their own costs.
Other Citations: (1998)LCN/0367(CA)
