Alhaji Hassan Abuja V. Lawan Gana Bizi (1988)
LawGlobal-Hub Lead Judgment Report
UTHMAN MOHAMMED, J.C.A.
In the Brief of Argument filed by the appellant for the prosecution of this appeal, his counsel formulated the following issues for the determination of the appeal:
(1) Whether the Borno State Sharia Court of Appeal has jurisdiction to entertain an appeal in respect of contract of sale as at 22/5/84 even though Islamic Law of contract was applied.
(2) If it has jurisdiction to so entertain the appeal, whether it was proper to interfere with the decision of the Upper Area Court Nguru, the trial court in view of the weight of evidence before the trial court.
The first question for determination of this appeal which I have reproduced above touches the issue of jurisdiction of the Sharia Court of Appeal to determine the matter in dispute between the parties in this appeal. It is pertinent, therefore, to refer to the claim filed by the respondent, before the Upper Area Court, Nguru, against the appellant. The case is a representative action in which Mallam Jawi Mohammed, Mai Jawa and Babale jointly sued Alhaji Hassan Abuja on behalf of MaHam Lawan Gana, seeking for the revocation of a sale of land. The statement of claim is as follows:-
“I, Jawi Mohammed, Mai Jawa and Babale are instituting this action against Alhaji Hassan Abuja on behalf of Mallam Lawan Gana.
The reason why we decided to sue him is that we are claiming the plot in dispute which originally belonged to Baleri. Later M. Lawan Gana bought it from him in November, 1982 for N2,000.00. It is Certificate of Occupancy No.005202 dated 23rd December, 1982, Registration No. 323, holding NG/AREA/170, all of them bear the name Baleri.
When one looks at the statement of claim reproduced above, one is bound to conclude that the issue in dispute between the parties does not fall within the definition of Islamic Personal Law as has been provided in S.242 of the Constitution of the Federal Republic of Nigeria, 1979. The subject matter which the parties litigated before the Nguru Upper Area Court is in respect of contract of sale of a plot of land. The learned counsel for the appellants, Ahmed Al Mustapha, submitted before us that on the 22nd of May, 1984, when the Borno State Sharia Court of Appeal disposed of the case in hand the jurisdiction of the Sharia Court of Appeal was confined to matters specified in Section 242 of 1979 Constitution, as amended by Constitution Suspension and Modification Decree, 1984. Counsel further submmitted that even though there is a recent amendment on the jurisdiction of the Sharia Court of Appeal by the Constitution (Suspension and Modification) Amendment Decree, 1986, No. 26, the said amendment is not retrospective and does not therefore affect the position of the law as at 22/5/84. Counsel then referred to a judgment of this court: Mallam Ado & Anor v. Hajiya Dije (1984) 5 N.L.R. 260, and submitted that the case being one based on a contract of sale, is not within the purview of the provision of S.242 of the Constitution.
In reply to the appellant’s submission on the issue of jurisdiction, the learned counsel for the respondent submitted in the respondent’s Brief of Argument that the appellant’s submission purporting to oust the jurisdiction of the Sharia Court of Appeal, as is contained in his ground of appeal is untenable. Counsel referred to S.242(2)(e) of the Constitution and argued that a careful study of that provision would readily incorporate into the jurisdiction of the Sharia Court of such other matters not enumerated under S.242(2), provided that the parties have requested that such matters be determined in accordance with Islamic Law. The respondent’s counsel further submitted that since both parties in this case are moslems and have taken their dispute to an Upper Area Court which to their knowledge is presided over by a Moslem Judge, and in which the law applicable is substantially Islamic Law, then no other conclusion can be arrived at other than the fact that the parties had intended, requested and in fact, did submit themselves to the application of Islamic Law in the determination of their dispute. The learned counsel finally submitted that the Sharia Court of Appeal had jurisdiction to try the dispute arising out of a contract of sale.
May I explain, before going deeper into this judgment that this court had made several decisions in the past, in respect of appeals coming here, the subject matter of which was a dispute between respective parties, in those cases and which were not within the definition of Islamic Personal Law, as outlined in S.242 of the 1979 Constitution.
We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law regardless of the fact that the parties signed form AC9 or not. One of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 N.C.L.R. 260 at 267 30 which the learned counsel for the appellant cited in the appellant’s brief. See also the case of Umaru Fannami v Bukai Sarki, Appeal No.CA/I/16/84 (Unreported) and Alhaji Mudi Liman v. Alhaji Maiwadan Gaga, Appeal No. FCA/K/110s/80 (Unreported).
It is still pertinent, however, and in view of the recent promulgation of the Constitution (Suspension and Modification) (Amendment) Decree, No. 26 of 1986, to explain more about the ouster of jurisdiction of the Sharia Court of Appeal to determine any matter which is outside its jurisdiction as outlined in the Constitution under S.242.
The items enumerated in S.242 of the Constitution have been lifted out from Section 11 of the Sharia Court of Appeal Law Cap. 122 of Northern Nigerian Laws, applicable to Borno State. See also Section 2 of the Sharia Court of Appeal-Law. If one goes through the provision of that Section of the Sharia Court of Appeal Law, one can quickly establish that what has been provided in S. 242 of the 1979 Constitution and defined as Islamic Personal Law is not an Innovation perfected by those who drafted the Constitution. Those items form the correct list of what is called Islamic Law of Personal Status. There may be one or two items not listed if we compare the definition of Islamic Personal Laws of other Moslem countries.
In the book of Islamic Law of Personal Status, written by Jamal J. Nasir, who was at one time a member of the Federal Supreme Court of Nigeria and a former Minister of the Kingdom of Jordan, it was held by the learned author that the first definition of Islamic Law of Personal Status was given by the Egyptian Court of Cassation on 21st June, 1934, in an appeal No.40J, as follows:-
“Personal status is the sum total of the physical or family descriptions of a known person which distinguish him from the others and give legal effects under the law in his social life, such as being male or female, married, widowed or divorced, a parent or a legitimate child, being of full legal capacity or defective capacity due to minority imbecility or insanity, being of absolute or limited legal capacity.
As for matters related to property, they are all by nature real status questions. But the Egyptian Legislator, finding that Wakf, gift and will, all being contracts without consideration, are based on the religious concept of charity, includes them in the personal status issue.”
The Iraqis on their part enumerated a number of items and listed them as questions of personal status. Inductively, those questions are:-
“(1) The Wakf: conditions, beneficiaries of their allocation, administration, and the guardian;
(ii) Status: including being alive, dead, missing or absent;
(iii) Legal capacity and the accidents thereto;
(iv) Betrothal, marriage, prohibited degrees, registration and proof;
(v) Marital rights and duties, dower and maintenance;
(vi) Repudiation of marriage;
(vii) Parentage and degrees of kinship;
(viii) Custody and fostering;
(ix) Maintenance of descendants, ascendants and other kin;
(x) Guardianship, wills, acts taking effect after death and questions of inheritance.”
The Tunisian Presidential Decree of 26/11/1376 A.N., 26/6/1957 A.D., Raid 51-57 enumerates the personal status, questions as follows:-
“Personal status shall include disputes over the status of the persons and their legal capacity, marriage, property dispositions between spouses, rights and duties of spouses, divorce, mutual repudiation and judicial separation, parentage, acknowledgment or disapproval of paternity, family and descendants relationships, maintenance duties among relatives and others, rectification of parentage, adoption, tutelage, guardianship, inter-diction, attainment of majority, gifts, inheritance,-wills and other acts taking effect subsequent to death, the absent person and the declaration of a missing person to be dead.” (Art. 2)
I have endeavoured to give the definition of Islamic Personal Law in other countries in order to show that our Nigerian definition is not in anyway a departure from what is well known and accepted all over the Islamic World to be Moslem Law of Personal Status. Our list of matters defined in 1979 Constitution as Islamic Personal Law, when compared with what I have reproduced above, in other Moslem countries, would show, except in a few minor aspects, that what is regarded as Islamic Personal Law in other Moslem countries has been taken care of in the Nigerian Constitution. In my view, those aspects which we have not included in our definitions are meant to be dealt with under Section 242(2)(e) of the Constitution. I will reproduce paragraph (e)-of Section 242(2) for the purposes of clarity. It is as follows:-
“S.242(2): For the purposes of subsection 1 of this section, the Sharia Court of Appeal shall be competent to decide – (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 will be some issues which may arise in a particular case which are accepted universally as Moslem Personal Law, but which have not been specifically mentioned in the provision of S.242 of the Constitution. Those aspects could be declared so by the courts and made part of the jurisdiction of the Sharia Court of Appeal. In my strong view, those are the matters which S.242(2)(e) of the Constitution is talking about. The Sharia Court of Appeal under the 1979 Constitution cannot exercise power in any matter other than what is well defined to be an Islamic Personal Law case. I will refer to Section 223(1) of the Constitution to buttress my opinion. That section reads:-
“223(1): An appeal shall lie from decisions of the Sharia Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic Personal Law which the Sharia Court of Appeal is competent to decide.
The section above laid emphasis on Islamic Personal Law and the emphasis is deliberate because that is the only jurisdiction which the Constitution provides for the Sharia Court of Appeal. Thus, if the Sharia Court of Appeal makes a determination in any matter which is not Islamic Personal Law, the Constitution has not made any provision for an appeal from that decision to the Court of Appeal. This is a clear indication that the Sharia Court of Appeal could not exercise any jurisdiction outside those enumerated under S.242.
I will now move on to the Constitution (Suspension and Modification) (Amendment) Decree No. 26 of 1986, which attempted to extend the jurisdiction of the Sharia Court of Appeal to cover all cases determined under Islamic Law and Procedure, at the Area Court. That decree, as far as the attempt to enhance the jurisdiction of the Sharia Court of Appeal is concerned does not serve the purpose for which it is intended. All what has been provided in that Decree is as follows:
Sections 217, 223(1), 226(a), 242(b) and 242.
In these Sections by deleting the word “personal” wherever it occurs after the word “Islamic.”
It is not clearly spelt out what the intention of the legislature is in respect of this amendment; but it is not difficult to presume. There has been a persistent demand from all the Kadis of the Sharia Court of Appeals in the Northern States for enhancement of their jurisdiction to include all cases tried by the Area Courts where the Moslem Law and Procedure is applied. Their demand, is in all respects genuine when one looks at the fact that most of them were Area Court Judges before their promotion to the Sharia Court of Appeal. In their argument, it is an error to stop them from hearing appeals from cases which they were handling before their promotion. The anomaly which the Kadis wanted the Government to correct is to stop the division of cases determined by the Area Courts into those determined under Islamic Personal Law and others. Thus, all appeals from the decision of the Area Courts, where Islamic Law and Procedure is involved could be made part of their jurisdiction. The Constitutional Amendment, however, failed to enhance the jurisdiction of the Sharia Court of Appeal because it left the original jurisdiction of the Court under S.242 intact. Thus, even though the Constitution (Suspension and Modification) (Amendment) Decree No. 26 of 1986 provided for the deletion of the word “personal” wherever it occurs after the word “Islamic” in the Constitution, it left untouched the specific jurisdiction of the Sharia Court of Appeal. In other words, the jurisdiction of the Sharia Court of Appeal remains limited to those items enumerated under S.242(2)(a)(b)(c) and (d) of the Constitution. Even if I am wrong in so holding, then the Constitution (Suspension and Modification) (Amendment) Decree, No. 26 of 1986 which came into operation on the 20th of November, 1986 does not apply to the case in hand in view of the fact that the Decree was not made with retrospective effect and the decision of the Sharia Court of Appeal, Borno State was delivered on the 22nd of May, 1984.
In the end, I have no hesitation in agreeing that the Sharia Court of Appeal, Borno State, has no jurisdiction to determine the subject matter in dispute between the parties, the signature of the parties in form CA9 notwithstanding. The decision being out of its jurisdiction is a nullity. This appeal succeeds and it is allowed on the point of jurisdiction. Having declared the judgment of the Sharia Court of Appeal a nullity, I do not find it necessary to consider the second ground of appeal. The case is hereby remitted to the Borno State High Court for the determination of the appeal in the judgment of the Upper Area Court, Nguru. The appellants are entitled to the costs of this appeal which I assess at N200.00.
Other Citations: (1998)LCN/0467(CA)
