Bashir Gidan Kanawa V. Alhaji Sani Maikaset (2007)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, P.C.A.

This appeal is against the decision of Sharia Court of Appeal Sakata The matter principally relates to purchase of a house in Sokoto. The matter started before the Tudun Wada Lower Sharia Court, which affirmed the purchase. The appellant was dissatisfied with the decision of the Lower Sharia Court and he appealed to Upper Sharia Court, Sokoto. In its judgment, the Upper Sharia Court Sokoto affirmed the decision of the Tudun Wada Lower Sharia Court and dismissed the appeal. The appellant still not satisfied with the decision of the Upper Sharia Court, further appealed to the Sharia Court of Appeal, Sokoto State. Issue of jurisdiction was raised by counsel for appellant for the first time, when the matter was being argued before the Sharia Court of Appeal. The counsel based his submission on the provision of section 39 of the Land Use Act, 1978. He also makes reference to section 22 of the same Land Use Act referring to lack of permission of the State Governor on the transaction. The counsel however went ahead to make alternative submission indicating the unsoundness of the decision of the Tudun Wada Lower Sharia Court, which was affirmed by the Upper Sharia Court. The Sharia Court of Appeal however overruled the objection raised on its jurisdiction to hear the appeal.

The Court ruled as follows:

“We observe that the law of Sokoto State No.2 (2000) (sic) which established Sharia law gives the Sharia Court of Appeal the power to sit in appeal over judgments of Upper Sharia Court of Appeal Sokoto.” The Sharia Court of Appeal went ahead to hear the appeal and at the end of the day affirmed the decisions of the two Lower Courts and dismissed the appeal. The appellant still not satisfied, filed another appeal to this court. The counsel for appellant filed only one ground of appeal with leave of this court. The ground of appeal without its particulars reads as follows:

“The Sharia Court of Appeal, Sokoto State erred in law when it entertained an appeal on an issue which it lacked jurisdiction.” The counsel for appellant who initially formulated two issues from the lone ground of appeal applied to abandon the 2nd issue which was accordingly struck out. The issue now for determination is whether the Lower Sharia Court, an Upper Sharia Court or a Sharia Court of Appeal in Sokoto State has jurisdiction to hear a case involving dispute on sale of property (house) situate in an urban area. It appears to me that, there are actually two legs to the counsel’s submissions on the issue of jurisdiction. The first leg is concerned with the application of some sections of the Land Use Act, while the second leg relates to the Constitutional provision of section 277(1) & (2) of the 1999 Constitution. It is rather curious that the counsel is making heavy weather over the issue of the provisions of the Land Use Act. I say this because I checked through all the proceedings from Tudun Wada Lower Sharia Court to the Upper Sharia Court and even before the Sharia Court of Appeal, I cannot find anywhere, a Certificate of Occupancy whether statutory or otherwise tendered in evidence. The best that was placed before the court was a plot number referred to as SOK 365; whether this number is that of Certificate of Occupancy or a house number is difficult to say. Even the Sharia Court of Appeal made this observation when it stated that “the counsel to appellant has not provided any proof that the house is located within an urban area.” I cannot also find any order made by the Governor designating areas that are urban areas and those that are not. Without these vital documents all the arguments of counsel based on the provision of section 39 of the Land Use Act are of no moment. I think for the purpose of clarity, I shall set out the relevant sections of the Land Use Act; they are sections 39 and 41.

Section 39 states as follows

“(1) The High court shall have exclusive original jurisdiction in respect of the following proceedings –

(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;

(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.”

(2) All laws, including rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.”

Then section 41 states as follows:

“An area court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph ‘proceedings’ includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.” The reason why I set out the provisions of these sections will come out later in this judgment. Suffice it to say for the meantime, that the counsel for Appellant cannot assail the jurisdiction of the Sharia Court of Appeal on the basis of the provision of section 39 of the Land Use Act, because as I mentioned earlier, he did not place before the courts the required documentary evidence to entitle him to do so. The case of Adene v. Dantunbu, (1994) 2 NWLR (Pt. 328) 509 relied upon by counsel is not relevant to his case. Having reached this conclusion, I can say straight away that all the arguments of counsel for respondent on the constitutionality of the provision of the Land Use Act has collapsed. In any case, the approach of the counsel for the respondent to the whole issue is completely misconceived. I shall now consider the other leg of the argument of the counsel for appellant, which relates to the challenge of the jurisdiction of the Sharia Court of Appeal on constitutional ground. Counsel for appellant in his submission stated that section 277(1) and (2) of the Constitution of Nigeria 1999 specifically spelt out the jurisdiction of Sharia Court of Appeal of a State.

Now, section 277(1) and (2) provides as follows:

“Section 277(1) – The Sharia Court of Appeal of a State shall, in addition to such other 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 purposes of subsection (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 that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant:

(b) where all the parties to the proceedings are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;

(c) any 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

(e) where all the parties to the proceedings, being Muslims, 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.

While section 17(3) of Sokoto State Sharia Courts Law, 2000 provides as follows:

“Section 17(3) An appeal shall lie as of right in both civil causes and matters and in criminal cases from the decision of the Upper Sharia Court to the State Sharia Court of Appeal.”

Certainly, there is a problem here. Section 1(1), (3) of the 1999 Constitution clearly set out how things should be. The section states as follows.

Section (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. This Constitutional provision needs no further clarification. It is clear that section 17(3) of the Sokoto State Sharia Courts Law, 2000 is inconsistent with the provisions of section 277(1) & (2) of the 1999 Constitution. Section 17(3) is therefore void to the extent of the inconsistency. The implication of this is that the Sharia Court of Appeal Sokoto State has no jurisdiction to hear and determine this appeal. The appeal should have gone to the High Court of Sokoto State and, I so order if need be. I have earlier on set out the provision of section 41 of the Land Use Act. I did that with a purpose, the purpose is that, the trials before the Tudun Wada Lower Sharia Court as well as the appeal before the Upper Sharia Court are in order. But any further appeal, if need be should go to the High Court of Sokoto State. The appeal is therefore allowed to that extent.

I make no order as to costs.

Other Citations: (2007)LCN/2334(CA)