Abdu Dan Maishanu V. Sarkin Fulani Hardo (1997)
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MUNTAKA-COOMASSIE, J.C.A
This is an appeal against the judgment of the Katsina State Sharia Court of Appeal herein court below. The matter started from Yanduna Area Court (trial court). In that court the plaintiff (Appellant) instituted an action against the defendant, now respondent claiming his brother’s farm from the defendant. This is because his (plaintiffs) brother died and the respondent occupied the land in dispute and was using same as his own. The defendant denied the claim and countered it by saying that the land in dispute initially belongs to his own father who gave the same land to the plaintiffs brother and when he migrated he took over the land he is now working on it for the first 30 years undisturbed. The respondent was so magnanimous when he agreed that since they are living together with the plaintiff/appellant the disputed land be shared equally to them. According to the record of Yanduna Area Court the appellant acceded to this offer.
The land was then divided into two each party took half of it. This formed the judgment of that court and the claim of the plaintiff was accordingly dismissed, Later the plaintiff appealed to the Upper Area Court Daura against the decision of the Yanduna Area Court and claimed that the land in dispute was in the possession of the defendant/respondent on trust. He contended that it was one Ado Maishanu who left the land in question to the defendant for safekeeping.
The Upper Area Court accepted the appeal and started the case de novo. Both parties called witnesses and were cross-examined. The court also went to the locus and took evidence there and then. At the end of the trial de novo the upper area court found that the plaintiff (appellant in that court) has got one witness in his favour and offered him a complimentary oath of which he subscribed. Judgment was then entered in favour of the plaintiff and set aside the decision of the trial court. The whole land in dispute was then adjudged property of the plaintiff – Abdu Maishanu. The respondent in that court successfully appealed to the Sharia Court of Appeal on the ground that the claim of the plaintiff at the lower court was in inconsistent. There was no certainty in the claim, it is full of contradictions. The court below was of the opinion that since the defendant, Hardo S/Fulouni was in possession of the land in dispute he should be offered oath first to complete his evidence. The land in dispute was then awarded to the appellant before the Sharia Court of Appeal after setting aside the decision of the Upper Area Court Daura.
Dissatisfied with the above decision the appellant, who was the plaintiff at the trial and upper area courts, further appealed to this court and filed a Notice of Appeal containing an omnibus ground, namely
“The decision of the Sharia Court of Appeal is un-reasonable, unwarranted having regard to the weight of evidence.”
Before I consider this appeal I wish to make the following observations:-
- Both parties are appearing in person.
They turned down an offer from this court to engage the services of counsel.
- None of the party filed a brief of argument. They merely relied and adopted their respective cases as contained in the record of proceedings of the three lower courts.
- None of them can therefore formulate any issue. Considering the nature of the claim of the plaintiff in the trial court, the facts of the case and the prevailing law the pertinent question to ask is whether the Sharia Court of Appeal Katsina State has jurisdiction to entertain the appeal. If that court lacks jurisdiction then any subsequent proceedings will be declared a nullity. It is trite law that a court can suo motu raise and consider the issue of jurisdiction before embarking on other issues. This is so because the issue of jurisdiction of a court is very important and must therefore be treated first.
It is fast becoming trite that the jurisdiction of the Sharia Court is determined by the Statement of claim of the claimant before the trial court. It was the law that since jurisdiction is the basis of adjudication, it will be considered first, so as to know whether the judgment/decision appealed against can stand or fall along with the entire proceedings.
As I was stating earlier on, that the claim of the plaintiff at the trial court is the parameter for determining the jurisdiction of an appellate court, Sharia Court of Appeal inclusive. Kotoye v. Saraki (1992) 9 NWLR (Pt. 264) 207, Tukur v. Government of Gongola Stale (1989) 4 NWLR (Pt. 117) 517; (1989) 8 SCNJ Page 1. Engineer Samuel D. Yalaju-Amaye v. Associated Registered Engineering Contractors Ltd & Ors (1990) 4 NWLR (Pt. 145) 422.
I have already considered the claim of the plaintiff at the trial court which was repeated at the Upper Area Court and found it to be purely on claim of title. The plaintiff was urging the court to declare him the owner of the land in the possession of the defendant. The subject matter does not in any way relate to Islamic Personal Law. Islamic Personal Law was defined in S 242 of the 1979 Constitution of the Federal Republic of Nigeria. Section 242(2) (e) of the 1979 Constitution says:-
Section 242(2) for the purposes of subsection(s) of this section, the Sharia Court of Appeal shall be competent to decide:-
(a)
(b)
(c)
(d)
(e) where all the parties to the proceedings (whether or not they are moslems) 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”.
There is no indication any where in the record that this matter could come under the Provisions of Section 242(2) a-e of the 1979 Constitution. The claim of the plaintiff clearly has not been mentioned in the provisions of Section 242 of the 1979 constitution, it is therefore outside the jurisdiction of the Sharia Court of Appeal. See Abuja v. Bizi (1989) 5 NWLR (Pt 119) 120 Per Mohammed JCA, as he then was; Ado v. Dije (1984) 5 NCLR 260/267; Isa v. Karda (unreported) Appeal No. ZCNJ/32/S/85 delivered on 16/10/85; and Garba v. Dogon Yaro (1991) 1 NWLR (Pt 165) 102. Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537 at 541 S/C.
I hold therefore that the Sharia Court of Appeal Katsina State has no jurisdiction to entertain the appeal when it was brought before it The subsequent proceeding of it therefore is a nullity and I so hold. Appeal is allowed on the ground of jurisdiction alone. The decision of the court below is hereby set aside. The case is hereby remitted to the Katsina State Chief Judge for the determination of the appeal in the judgment of the Upper Area Court, Daura – this is because both Yanduna Area Court and Daura Upper Area Court have jurisdiction to entertain the matter. The appeal from the Upper Area Court Daura should have, at the outset gone to the High Court of the State instead of Sharia Court of Appeal. N800 costs to the appellant.
Other Citations: (1997)LCN/0259(CA)
