Alu Hakimi & Anor V. Rabiu Kwakwaba & Anor (2016)
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TUNDE OYEBANJI AWOTOYE, J.C.A.
This is the judgment in respect of the appeal filed by the appellant via their notice of appeal dated 7/8/2014. The appeal is against the decision of the Sharia Court of Appeal Kebbi State delivered on 26/6/2014.
The Court of first instance that first heard the suit that went on appeal to the Lower Court was the Upper Sharia Court Kamba.
The claim of the plaintiffs against the Respondent at the Court of first instance was as follows:
“I, Mal. Rabiau Yakubu Kwakkwaba and Mal. Sani Kwakkwaba are suing these three people:
1. Adamu Giwa Buma.
2. Muhad Dan Chankwali Buma
3. Alu Giwa Buma
We want to them to give us our house which we inherited from our father Yakubu, for we want divide the inheritance of our house. That it is our father Yakubu that lended the house to their father called Hakimi Dobi Buma. We want them to return the house lended to their father this is why we are suing them.”
After hearing the parties the trial gave judgment thus:
“Based on the foregoing on the testimony of one witnesses and
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the swearing by the plaintiffs.
I, Sanusi Sidi Gazzali, Judge of the Upper Sharia Court Kamba had decided to transfer back to Rabi?u Yakubu and Mal. Sani their fathers house which he lended to the father of Adamu and Alu. As such I confirmed to Rabi?u and Mal. Sani this house based on the following authority.?
An appeal against the said decision was later filed at the Sharia Court of Appeal of Kebbi State Argungu Division.
The Lower Court after hearing the parties affirmed the decision of the trial Court and dismissed the appeal.
Miffed by the decision of the Lower Court, the appellants in this appeal challenged the said decision on three grounds.
The grounds of appeal vide the amended notice of appeal (without particulars) filed on 20/10/2014, are
?Ground one
The learned Kadis of the Lower Court erred in law and arrived at a wrong decision when they affirmed the decision of the Upper Sharia Court Kamba which wrongly administered Oath on the Respondents regard been had to the fact that none of the Respondent?s witnesses substantiated their claim before the trial Court.
Ground Two<br< p=””
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The whole decision of the Lower Court is unjustified having regard to the weight of evidence adduced.
Ground Three
The Lower Court erred in law when it heard and determined an appeal for which it has no jurisdiction.?
The record of appeal was later transmitted to this Court on 2/10/2014 after which parties filed and exchanged the briefs of argument.
The appellant?s brief of argument was settled by Aminu Hassan, learned counsel for the appellants, and filed on 28/11/2014.
Learned counsel formulated two issues for determination to wit:
1. Whether the Lower Court was right to assume jurisdiction to hear, entertain and determine the appeal (Ground 3)?
2. Whether from the evidence of the Respondents the trial Court was right in administrating (sic) Oath on them? (Distilled from grounds 1 and 2 Grounds 1 & 2)?
On issue No 1 learned appellant?s counsel submitted that the substratum of the claim before the Court was ownership of the house. He contended relying on Section 277 of the 1999 Constitution that the Lower Court lacked jurisdiction to entertain an appeal on such a matter. He cited
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USMAN V KAREEM (1952) 2NWLR (PT. 379) 537, GARBA V DOGON YARO (1991) INWLR (PT. 165); MALLAN GAMBO V JAURO (1997) 10NWLR (526) 526 at 608 and MAGAJI V MATARI (2000) 8 NWLR PT 670 at 722. He finally urged the Court to allow the appeal and set aside the decision of the Sharia Court of Appeal Birnin Kebbi.
On issue two, learned appellant?s counsel submitted that under Islamic Law of evidence a witness?s testimony was required to be direct clear and cogent testimony. He submitted further that it was the duty of the trial Court to evaluate the testimonies of the respective witnesses in line with the substance of the claim.
He referred the Court to the Respondent?s claim and the evidence of PW1 which according to him were sharp contradiction. He posited that the findings of the Lower Court were not supported by credible evidence. He urged the Court to resolve issue No 2 in favour of the appellants.
He finally urged the Court to allow the appeal and set aside the decision of the Lower Court.
?The Respondent?s joint brief of argument was filed on 30/12/2014. Learned respondent counsel challenged the jurisdiction of this
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Court to entertain the appeal in a preliminary objection filed by him. I need to state at this juncture that at the hearing of this appeal, the Respondent counsel was absent in Court. However having filed the Respondent?s brief of argument, the brief was deemed as argued in line with Order 18 Rule 4 of the Court of Appeal Rules 2011.
Arguments on the preliminary objection were incorporated in the Respondent’s brief of argument.
Learned Respondent’s counsel submitted that the appellant did not pay the filing fees in respect of the notice of appeal in this appeal. He contended that this rendered the entire appeal incompetent. He cited SEVEN UP BOTTLING CO. LTD V YAHAYA (2001) 4 NWLR (PT 702) 47 and some other cases. He urged the Court to dismiss the appeal for lack of compliance.
On the main appeal, the learned Respondents’ counsel adopted the two issues formulated by the appellant’s counsel.
On issue No 1, learned Respondent’s counsel submitted that by virtue Section 277 (2) of the 1999 Constitution the jurisdiction of the Sharia Court of Appeal of a State had been restricted to issue of Islamic
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Personal Law including inheritance. He posited that the claim before the trial Court was a case of inheritance and not a land matter. He urged the Court to resolve the issue in favour of the Respondents.
On issue No 2 learned counsel also urged the Court to resolve issue no 2 in favour of the Respondents.
The appellant filed Reply to the Notice of Preliminary Objection on 16/2/2015. Appellant?s counsel submitted that once a litigant paid the assessed fees to the Registrar neither the litigant nor their counsel should be allowed to suffer for the mistake of the Registrar. He cited COOP & COM. BANK PLC V A- G ANAMBRA STATE (2005) 12 SC. (Pt.1) 1 and other cases. He finally urged the Court to discountenance the preliminary objection and determine the appeal on merit.
I have carefully considered the submissions of learned counsel on both sides.
I have deeply considered the preliminary objection of the Respondents which in my respectful view lacks merit. I have gone through the notice of appeal as incorporated in the record of appeal. The notice of appeal which is on pages 16 ? 18 of the record has the official stamp of the
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Sharia Court of Appeal with a stamp signifying that it was paid for. Whatever else ought to have been stated by the Registrar but which has been mistakenly omitted cannot be visited on the appellants who have paid the relevant fees. See STATE INEC EKITI STATE V N.C.P. (2009) 13NWLR at 121, DUKE V AKPABUGBO L. GOVT (1990) 4 NWLR (PT.146) 551/557.
There is also presumption of regularity in appellants’ favour, that the notice of appeal filed was rightly and duly filed, See AMALA V THE STATE (2004) 18 NSCQR 834.
The preliminary objection of the Respondents lacks merit. It is accordingly overruled.
Now to the main appeal.
Jurisdictional issue having been raised by the appellants in issue No 1, I shall first consider the issue before issue No 2.
The jurisdiction of a Sharia Court of Appeal of a State is defined under Section 277 of the 1999 Constitution of the Federal Republic of Nigeria. It has jurisdiction in civil proceedings involving question of Islamic Personal Law which the Court is competent to decide in accordance with Section 277 (2) of the same constitution. Section 277 of the Constitution reads thus
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” Section 277
1. The sharia Court of Appeal of a state shall, in addition to such jurisdiction as may be conferred upon 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 provisions of Subsection (2) of this section.
2. For the purpose of Sub section (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 the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
c) Any
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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 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
Where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the First Instance to determine, that the case in accordance with Islamic personal law, any other question.”
Section 277 of the 1999 Constitution has been subjected to a lot of judicial interpretation by this Court and the apex Court. The law is now settled that a Sharia Court of appeal of a State lacks jurisdiction in any civil proceedings involving land where there is no question of Islamic Personal Law involved. See MAGAJI V MATARI (2000) 8NWLR (PT. 670) 722 where Muhammad JSC held thus
“Land dispute can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding Wakf, gift, will or
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succession where the endower, donor, testator or deceased person is a Muslim.”
See also TUMFAFI V MERESNO (1993) 1 NWLR (Pt.269) 378; SOKOTO V SAHABI (2015) LPERL – CA/S/38S/2015. MAISHANU V MANU (2001) NWLR (PT 1032) 423 etc.
Did the Lower Court have jurisdiction to entertain the proceedings now on appeal before this Court?
The Respondent counsel had contended that the proceedings at the Court of trial i.e. Upper Sharia Court Kamba involved issue of inheritance and was not a land matter, simpliciter.
I have carefully gone through the entire proceedings, at the Lower Court. With respect, I am unable to agree with learned Respondents’ counsel on this. True, in the claim, the plaintiffs stated that they wanted to ‘divide the inheritance of our house’ But they were stating the purpose of demanding for the house in the action filed by them. It is clear from the proceedings that they were not claiming to be joint heirs with the Respondents, who clearly did not claim the same paternity with the plaintiffs.
The 1st Respondent at the Court of first instance was Adamu Giwa Buma. He stated that on page
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2 of the record, in response to the question by the Court, thus
?Adamu Giwa: I heard but I don?t know that they have a house in our possession and our father did not tell us that the house was lended to him. And we have been in possession of the house for at least 50 years.?
Muhammad Dan Chakwali was the 2nd Respondent. He also told the Court thus
?I heard, the house is in my possession and really their father lended the house to our father.?
It is clear from the record of appeal that what the plaintiffs claimed at the Court of first instance was recovery of their father?s house from the Respondents.
This did not involve issue of Islamic Personal Law. Certainly, it is simply a land matter.
The appeal before the Lower Court therefore was in respect of a land matter which did not involve issue of Islamic Law.
The Lower Court clearly lacked jurisdiction to entertain the appeal.
In view of the above, I resolve issue No.1 in favour of the appellants. This appeal has merit it is hereby allowed.
?Appeal against the decision of the Upper Sharia Court Kamba in case No
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CV/F1/NO/139/2013 decided by the Lower Court on 26/6/2014 is hereby transferred to the appellate division of Kebbi State High Court for determination. The decision of the Sharia Court of Appeal delivered on 26/6/2014 in the said is hereby set aside. In its place I hereby order that Appeal No.SCA/KBS/KMB/07/2014 is struck out.
I make no order as to costs.
Other Citations: (2016)LCN/8670(CA)
