Baka Jiji & Anor V. Ibrahim Abare (1998)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Yobe State Sharia Court of Appeal holden at Potiskum delivered on 1/6/94 which reversed the earlier decision of the Upper Area Court, Damagum.

The facts of this case briefly put are as follows:

This case was transferred by the Yobe State Sharia Court of Appeal for retrial at the Fune Upper Area Court Damagum. The respondent herein as plaintiff at Fune the Upper Area Court Damagum (hereinafter referred to as the UAC) sued the appellants herein as defendants claiming as per page I of the records, a farmland alleging that it belonged to his father, who gave it on loan to the 1st appellant who had failed to return same back to the respondent. On being confronted with the respondent’s claim, the 1st appellant said he was given the land by one Baba Dira, their village head and the appellants thus denied the claim. The appellants further contended that ever since the gift to them they had been in long and undisturbed possession. The trial court, after hearing four witnesses, called for the respondent and two called for the appellants, dismissed the respondent’s claim.

Dissatisfied with this judgment of the UAC (Upper Area Court), the plaintiff/respondent. appealed to the Yobe State Sharia Court of Appeal Damaturu, holden at Potiskum on various grounds. At the Yobe State Sharia Court of Appeal (hereinafter referred to as the SCA), the Shari a Court of Appeal heard arguments from both sides and consequently reversed the decision of the trial Upper Area Court (UAC) after administering oath to two of the respondent’s witnesses holding that the respondent had proved his case against the appellants at the trial Upper Area Court (UAC) and that the: latter ought not to have been given the oath of denial.

Dissatisfied with the judgment of the Sharia Court of Appeal, the defendants/appellants (hereinafter referred to as the appellants) have again appealed to this court on three grounds. From the three grounds of appeal, the appellants have formulated the following three issues for determination in this appeal which have not been contradicted by the respondent. These are:

“(i) Whether the Sharia Court of Appeal had jurisdiction to entertain the appeal before it.

(ii) Was the Shari a Court of Appeal right in administering oath on the respondent’s witnesses’?

(iii) Whether un the evidence before the court, the judgment of the lower court was proper in law.”

Both counsel to the parties filed their briefs of argument on behalf of the parties. When this appeal came before us on 24/11/98, learned counsel to the appellants. Mr. Peter Agbese holding R.O. Yusufu’s brief, adopted and relied on the appellants’ brief deemed filed by the order of this court made on 24/6/96 and urged the court to allow the appeal. By way of reply, learned counsel to the respondent. Mr. M.B. Salihu, also adopted and relied on the respondent’s brief deemed filed herein on 6/8/96 and urged this court to dismiss the appeal. I shall now examine the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law. However, since jurisdiction is the basis of adjudication, it is hoped to deal with issue 1 which centres on jurisdiction since the outcome of this issue will determine whether or not the other issues will be considered.

On issue 1 dealing with jurisdiction of the Sharia Court of Appeal to entertain the present appeal, learned counsel to the appellants at pages 2-4 of appellants’ brief submitted that since the claim of the plaintiff/respondent at the lower court is for title to land simpliciter, it is outside the ambit of s. 242(2) of the 1979 Constitution. Consequently, learned counsel submitted that the Sharia Court of Appeal lacked jurisdiction to entertain the appeal. Learned counsel referred to Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) SCNJ (Pt.11) 388 p.400 411-413. By way of reply, learned counsel to the respondent at pages -3 of the respondent’s brief submitted that it is the claim of the plaintiff al the trial court that determined the jurisdiction of the court. He submitted further that since the claim of the respondent at the lower court is a matter of inheritance in the hand of the appellants, it falls within s. 242(2) of the Constitution to confer jurisdiction on the Sharia Court of Appeal.

I have considered the arguments of both learned counsel to the parties on this issue of jurisdiction, it is my view that the plaintiffs claim (rather than the defendant’s counter-claim) at the lower court that determines the jurisdiction or the court in a matter of this nature. See Alh. Umam Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, (1989) 9 SCNJ 1; Eng. S.D. Yalju-Amaye v. Associated Registered Engineering Contractors Ltd. (1990) 4 NWLR (Pt. 145) 422; (1990) 6 SCNJ 149. In the light of these authorities, it is necessary to examine the claim of the respondent before the trial Upper Area Court. This as can be gathered at the beginning of this judgment was a claim for the return of a farmland given on loan to the father of the appellants which the appellants refused to return claiming same to be a gift to their father by the village head. From this claim, it can be seen that the dispute al the trial Upper Area Court relates to the Ownership of a disputed farm land.

At this juncture it is clear that the poser raised in this appeal is whether the Yobe State Sharia Court of Appeal had jurisdiction over the appeal. This poser had come for determination and resolution in various decisions of this court to the effect that once the issue of appeal is title to land simpliciter, the jurisdiction of the Sharia Court of appeal is ousted. See Isa v. Kardo (unreported) appeal No. CA/J/32s/85 (delivered by this Shari a appellate Bench of the Court of Appeal on 16/10/85: Abuja v. Bizi (1989) 5 NWLR (pt. 119) 120. See also Umam Alhaji Garba v. Adamu Dogon-Yaro (1991) 1 NWLR (Pt. 165) 102 where this panel of the Court of Appeal on the issue of jurisdiction of the Sharia court of Appeal based on S. 242 of the 1979 Constitution held at p. 105 per Okunola, J.C.A. thus:

“By virtue of s. 242(2) of the 1979 Constitution Sharia Court of Appeal has jurisdiction to determine any question of Islamic law regarding wakf, will or succession where the endower, donor, testator or deceased person is a Moslem. Thus, Sharia Court of Appeal has no jurisdiction to determine issue involving title to land.”

The above position of the Court of Appeal on jurisdiction of the Sharia Court of Appeal under the 1979 Constitution was affirmed by the Supreme Court in their various judgments in recent times. Thus in H. Ahmadu Usman v. M. Sidi umaru (1992) 7 NWLR (Pt. 254) 377. (1992) 7 SCNJ (Pt. II) 338 the court in its leading judgment per Ogundare, JSC at page 400 held thus:

“Turning now to the case on hand. I have stated earlier in this judgment the two grounds upon which the defendant sought to impeach the judgment of the Upper Area Court, that is, weight of evidence and bias (see pages 23 and 24 of the records). These two grounds can hardly be said to involve any questions regarding customary law. The Customary Court of Appeal will, therefore, in my respectful view, have no jurisdiction to entertain that appeal. And as the Court of Appeal (Wali, J.C.A.) held in CA/K/32/85, and quite rightly in my view, that the Sharia Court of Appeal had no jurisdiction to entertain the appeal as questions regarding Islamic personal law are not involved, it follows that it is the High Court of Plateau State sitting in its appellate jurisdiction that has jurisdiction over the appeal and the Court of Appeal was right in CA/J/23/85 to have transferred the appeal to that court for adjudication. The High Court was wrong to decline jurisdiction and the Court of Appeal in CA/J/28/87 per Jacks, J.C.A. was equally wrong to remit the appeal to the Customary Court of Appeal for adjudication. I will answer questions (1) and (3) in the affirmative.”

This was the majority view of the Supreme Court on the jurisdiction of the Sharia Court of Appeal shortly after commencement of Decree No. 107 of 1993 which deleted the word “personal” after the word “Islamic” wherever it occurs in sections 217, 223(1), 226(a). 241 (3) and 242 of the 1979 Constitution. As if this was not explicit enough to show that the deletion of the word ‘personal’ after the word ‘Islamic’ in the above sections of the 1979 Constitution does not confer additional jurisdiction on the Sharia Court of Appeal (apart from the Islamic personal law) the Supreme Court in a recent judgment in Alhaji Saidu Usman (substituted by Alhaji Isa Alabi Usman) v. Alhaji Salihu Kareem (1995) 2 NWLR (Pt. 379) 537 p. 541 held on jurisdiction of Sharia Court of Appeal as follows:

“Where a case involves Islamic personal law, as in this case which is about a gift between Muslims, an appeal from the decision of the Area Court on the matter lies to the Sharia Court of Appeal…”

“The cause of action in this appeal involves a gift and the donors are Moslems. Section 242(2)(c) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree No. 26 of 1986 vests the Sharia Court of Appeal with jurisdiction to exercise appellate and supervisory jurisdiction in civil proceedings involving question of Islamic law which the court is competent to decide in accordance with the provisions of subsection (2) of that section. Subsection (2)(d) of section 242 provides:

‘(2) For the purposes of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –

(a) …

(b) …

(c) any question of Islamic law regarding wakf, gift, will or succession where the endower, donor,

testator or deceased person is Moslem.’ From the foregoing, the proper court to appeal against the decision of Grade II Area Court, Ilorin on a question of Islamic law relating to gin as in this case is the Sharia Court of Appeal, Kwara State.”

From the foregoing authorities, since the 1979 Constitution is still in vogue, it is evident that the issue for determination in this appeal being on matter of ownership to a farmland simpliciter which was not mentioned in and does not fall within the ambit or s. 242(2) of the 1979 Constitution to confer jurisdiction on the Sharia Court or Appeal. I therefore hold that the Sharia Court of Appeal lacks jurisdiction to entertain this appeal since the claim of plaintiff/respondent at the lower trial court was an issue involving ownership of a farmland simpliciter and is in no way related to wafk, will or succession of a deceased Moslem. This issue disposes of all other issues in this appeal.

In the result this appeal succeeds and it is allowed on the issue of jurisdiction.

Consequently, the decision of the Yobe State Sharia Court or Appeal delivered in appeal No. YBS/SCA/CV/23/94 on 1/6/94 is a nullity for lack of jurisdiction. It is accordingly set aside. This appeal is remitted back to the Yobe State Chief Judge for determination by the State High Court in its appellate jurisdiction, in the area of jurisdiction of this case. Parties to bear their own costs.

Other Citations: (1998)LCN/0357(CA)