Haji Hamma Maishanu & Anor. V. Isa Ardo Manu & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD LADAN TSAMIYA, J.C.A.

This is an appeal against the decision of Gombe State Sharia Court of Appeal (herein referred to as the lower court) delivered on 3/6/2002 in suit No. GMSJ/SCA/CVA/DB/15/2002, in which the appeal was dismissed and the judgment of Upper Area Court Deba (herein referred to as the trial court) was affirmed.

In the trial court, the appellants, as defendants, were sued by the respondents as plaintiffs, claiming the return of their fathers farmland granted on loan to the respondents. The respondents denied the claim and asserted ownership of the farm land.

The trial court proceeded to call upon the respondents to prove the claim that the farmland belonged to their father and the father granted it on loan before his death to Abba Halilu, from whom the appellants ceased it. The respondents called four witnesses while the appellants called five witnesses and tendered a Certified True Copy of Kumo Area Court’s record of proceeding, which was admitted in evidence but without giving any exhibit number. The trial court after reviewing the evidence adduced by the parties, delivered its judgment on 18/2/2002 in favour of respondents by confirming the farmland’s ownership to them.

Being dissatisfied the appellants appealed to the lower court. At the conclusion of the hearing of both parties, the lower court reviewed the evidence adduced at the trial court vis-a-vis the grounds of appeal and dismissed the appeal and affirmed the decision of the trial court.

The appellants not satisfied with the decision of the lower court appealed to this court on 5 grounds. The grounds of appeal without their particulars read thus:

1. The Hon Khadis of Sharia Court of Appeal Gombe erred in law when they assumed jurisdiction to hear and determine the appeal before them when the court lacked jurisdiction to do so.
2. The Sharia Court Appeal erred and misdirected itself when it confirmed the decision of the Upper Area Court Deba which denied the appellants fair trial, thereby occasioning gross injustice.
3. The Sharia Court of Appeal erred in law, when it confirmed the decision of the trial Upper Area Court Deba, thereby occasioning miscarriage of justice.
4. The Sharia Court of Appeal erred in law when it made a finding on fact which was never before it, thereby occasioning a miscarriage of justice.
5. The decision of the Sharia Court of Appeal is unreasonable unwarranted and cannot be supported having regards to the weight of evidence adduced.

On 20th October 2004, the appellants sought and were granted:

(a) Leave to raise fresh issues of law which were not raised at the lower court.

(b) That the brief filed on 17/6/2004 was deemed as duly filed and served.

In compliance with the rules of this court, after the grant of extension of time within which to file appellants’ brief of argument, the appellants filed their brief and the appellants’ brief of argument already filed on 17/6/2004 was deemed as duly filed and served. The respondents, on the other hand, filed the respondents’ brief of argument on 24/11/2004. In their brief of argument, the appellants formulated four issues from the five grounds of appeal, for determination. The issues are as follows:

1. whether the lower court had jurisdiction to hear this case.
2. whether the appellants got fair trial before the lower court.
3. whether the rule of res-judicata is applicable in this case.
4. whether the respondents had proved their claim on the weight of the evidence before the court.

The respondents on the other hand formulated four issues based on the appellants’ grounds of appeal. The issues are:

1. That the lower court has jurisdiction to hear the case.
2. The appellants got fair hearing
3. That the respondents have proved their claim on the weight of the evidence before the court.
4. That all parties have presented their witnesses and all the witnesses have testified to that effect.

To start with, it seems that the respondents are not being represented by any counsel. They drafted the issues in their own way. The so-called issues are not issues for determination but a reply to the issues formulated by the appellants. However, an issue for determination, usually is a proposition of law or of fact in dispute between the parties, necessary for determination by the court and the determination of which normally affects the result of the appeal. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) at 130. Its purpose is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See: Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551 at 568.

Since the issues settled by the appellants are clearer. I shall, for the determination of this appeal adopt the issues of the appellants.

Issue I

The gist of the appellants’ complaint as contained in their brief of argument is that, in the circumstances of this case, the lower court lacks the jurisdiction to entertain the appeal before it. This, according to them, is because the issue involves the declaration of title to the farmland, and by virtue of section 277(1) and (2) of the 1999 Constitution of Nigeria, the lower court’s jurisdiction is ousted. They relied upon the case of Magaji v. Matari (2000) 8 NWLR (Pt.670) 722; (2000) 5 SCNJ 140; and Golok v. Diyalpwan (1990) 3 NWLR (Pt.139) 411; (1990) 5 SCNJ 198, to buttress their contention.

In response, the respondents contended that the lower court has jurisdiction.

On Issue No.2: The complaint of the appellants under this issue is that the appellants were not afforded a fair hearing as guaranteed by the Constitution, in that they were not given opportunity to cross-examine the respondents’ witnesses 1-3 at all. They relied upon the case of Suleiman v. Isyaku (1961-1968) 1 S.L.R.N. 150 at 154.

In their response, the respondents argued that the appellants were given a fair hearing when both parties were given equal opportunity to present and in fact presented witnesses.

Issue No.3: The question under this issue is whether the principle of res-judicata is applicable in this case. The appellants contended that in the absence of the record of proceedings of Kumo Area Court, it is not possible to determine by the trial court, whether this is a case in which the said principle applies.

Issue No.4: Under this issue, the appellants argued that the respondents did not prove their claim in the trial court as required by law. They further submitted that the evidence of PW1 and PW2 ought to be rejected because they are either beneficiaries to the farmland in dispute or derive benefit from the subject matter.

Having stated briefly the submissions of both parties to this case, I must first dispose of the appellants’ contention that the claim of the respondents having been founded on the issue for in declaration of title to the farmland, the lower court lacked jurisdiction.

The question of jurisdiction is a fundamental issue which is involved in the competence of a court to adjudicate on a case. This is why it is essential for a court to determine the issue in limine to avoid an exercise in futility. In Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587. It is well settled that a court has and can only exercise jurisdiction when

1. it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another and;
2. the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case comes before the court by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See also, Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. Any determination in the absence of jurisdiction is a nullity how well conducted. See Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1.

The jurisdiction of the Sharia court of Appeal of a state is constitutional and prescribed in section 277(2)(a-e) of the Constitution of Nigeria 1999. On a fair construction of the section, the jurisdiction of the lower court is confined to and limited to all questions of what is termed ‘Islamic Personal Law’, which is Islamic personal status, regarding the matters prescribed in subsection 2(a-e) of section 277 of the Constitution. See Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 732. This subsection relates to marriage and its dissolution, family relationship and guardianship of infants. It also includes Wakf, Gift, Will or Succession where the endower, donor, testator or deceased person is a Muslim. Included also is, the determination of any question of Islamic Personal Law regarding a Muslim, an infant, prodigal, person of unsound mind, the maintenance or guardianship of a physically or mentally infirm Muslim, and lastly, in all other cases where the parties have requested the court of first instance to determine the case in accordance with Islamic Personal Law.

Section 242(2)(a-e) of the 1979 Constitution of Nigeria, which is in pari materia with the provisions of section 277(2)(a-e) of the 1999 Constitution of Nigeria has been interpreted by this court and the Supreme Court in a number of cases, which include Abuja v. Bizi (1989) 5 NWLR (Pt.119) 120. In this case Uthman Mohammed J.C.A. (as he then was) in his lead judgment to which Maidama and Aikawa JJCA (of Blessed Memory) subscribed, emphasized at page 267 of the report, the law, as follows:

“The Sharia Court of Appeal (Under 1979 Constitution) has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law.”

In Baka-Jiji & Anor v. Ibrahim Abare (1999) 1 NWLR (Pt. 86) 243 at 521 this Division decided that the Sharia Court of Appeal lacked jurisdiction to entertain the appeal where the claim at the trial court was all issue involving ownership of a farm land simpliciter, and particularly where it is in no way related to Wakf, Will or Succession of a deceased Muslim. In Magaji v. Matari (supra) the Supreme Court, per Wali, JSC said, “the jurisdiction of the Sharia Court of Appeal is confined to and limited to all questions of Islamic Personal Law regarding the matters prescribed in section 242(2)(a-e) of the Constitution of Nigeria 1979 (as amended by Decree 107 of 1993).

There can be no doubt, in the instant case that, on analysis, the facts of the case concern competing claims to the ownership of the same farmland, and being so, the dispute cannot fit in any of the matters listed in section 277(2)(a-e) of the Constitution of Nigeria 1999.

As I said earlier in this judgment this issue raised – i.e. jurisdiction of the Sharia court in land matters – has come for consideration and resolution in various decisions of the appellate courts in this country to the effect that once the issue of appeal before the Sharia Court of Appeal, involves title to the land simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. See Ummaru Alhaji Garba v. Adamu Dogon Yaro (1991) 1 NWLR (Pt. 165) 102; Korau v. Korau (1998) 4 NWLR (Pt. 545) 212.

Applying the above principles in the instant case, it is my view that the lower court lacked jurisdiction to entertain the appeal No. GMSJ/SCA/CYA/DBII5/2002 and I so hold.

The consideration of this issue on jurisdiction having succeeded is enough to settle this appeal without considering the other issues raised in this appeal.

In the final analysis, the appeal has merit and is allowed. The judgment of the Sharia Court of Appeal Gombe State delivered on 3/6/2002 in the above mentioned appeal is hereby declared a nullity for want of jurisdiction. The appeal against the judgment of the Upper Area Court Deba in suit No.CV/F1/4/2002 dated 18/2/2002 is hereby transferred to the appellate division of the High Court Gombe State for hearing and determination. N10,000.00 costs is awarded to the appellant.

Accordingly appeal is allowed.

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Other Citations: (2006)LCN/2068(CA)