Hakimi Boyi V. Magaji Hassan (2001)

LawGlobal-Hub Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.C.A. 

The Appellant before this court was the plaintiff before the Area Court No. 2 Zagga hereinafter referred to as trial court. There the appellant sued the defendant to recover his two farms, which he rented to him 6 to 7 years ago. He asked that court to order for the return of those farms to him. He further clarified that he rented his marshy farm (Fadama) to three persons – Sale, Sani and the defendant. The three persons divided the farm into three. Later Sani declined to work on the divided farm. Now Sale started working on one farm and the defendant merged the two farms and started working on them. He further divided the farm into two and rented them to Sakabi, a Fulani man and to the respondent herein. The appellant further told the court that when he wanted to have his farm back, the respondent refused and claimed that he deforested the farms. “This is why I sue him so that he will transfer my farm to me including the one given to him by my father.

The respondent denied the appellant’s claim that the farm was on loan to him. He maintained that the (Fadama) “Marshy farm” was a gift by Magaji Zagga Mallam Atiku to him. The other farms were also gift to his father Abdulkadir made by the appellant’s grandfather. It was his father who gave the said farms to the respondent.

The above was the claim of the plaintiff/appellant before the trial court. The court then asked the appellant as plaintiff to call his witnesses if any. He called six witnesses who confirmed that the Fadama farm belonged to appellant and that he rented them to the respondent. Some three witnesses were impeached. On the issue of the other farm which is not marshy he had only one un-impeachable witness on his side and he was asked to swear on the Holy Quran. And based on the authority of Risala pp 444/446 the trial court declared the farms to be the property of the appellant.

The respondent herein is aggrieved with the above decision and appealed unsuccessfully to the Upper Area Court Bagudo. Not satisfied with the dismissal of his appeal the respondent further appealed to the Kebbi State Sharia Court of Appeal Birnin Kebbi. After hearing the grounds of appeal and considering the records of proceedings the court below held that the appeal is meritorious and allowed the appeal. It set aside both decisions of the Upper Area Court and trial court. They now confirm both farms to Hassan Magaji the appellant before it, provided he took an oath. They nullified the earlier oath taken by the appellant herein before the trial court, it was taken wrongly as non of his witnesses is qualified to testify.

Aggrieved by the above decision of the court below the appellant appealed to this court on one single ground.

I have to state that none of the parties was able to engage the services of a counsel. They all argued the matter in person. We are not expecting the briefs of arguments and none was filed. Each party told the court that he relied on his case as contained in the records of proceedings of Area Court 11 Zagga, Upper Area Court Bagudo and the Sharia Court of Appeal, Birnin Kebbi. The appellant herein urged us to allow the appeal and the respondent asked us to dismiss the appeal.

It appears to me, looking at the claim of the plaintiff at the trial court, that the Sharia Court of Appeal, Kebbi State could not have jurisdiction to hear the matter as the claim has nothing to do with Islamic Personal Law as provided by Section 277 of the 1999 Constitution of the Federal Republic of Nigeria since the cases of Moore v. Tayee 2 WACA 43 at 45 and Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311 it was clearly stated that where there is no jurisdiction, no court under any guise can confer one upon itself. See also the lead judgment of Ogundare, JSC in Adesina v. Kola (1993) 6 NWLR (Pt. 298) 182 at 200.

It is also the law that any issue of jurisdiction can be raised at any time in any court even if the proceedings are before the Supreme Court for the first time. Not only that, the issue of jurisdiction is so fundamental that can be raised and taken even by the court suo motu. See Rivway Lines Ltd. v. Rhein Mas Und See (1993) 7 NWLR (Pt. 308) 692/704 per Sulu-Gambari, JCA as he then was.

I think that a serious issue of jurisdiction in this appeal must, out of necessity, arise.

That being the case I felt we must dispose of it first before we go into the substantive appeal. Because if the Sharia Court of Appeal lacks jurisdiction then all the proceedings therein would be a nullity and we must so declare. See Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266/275 per Karibi-Whyte JSC.

This court has already decided in the case of Tumfafi v. Meresno (1993) 1 NWLR (Pt.269) 378 that once an issue on appeal is title to land, as in this appeal, the jurisdiction of the Shari a Court of Appeal to hear and determine the appeal is ousted as the Sharia Court of Appeal has jurisdiction only to determine questions of Islamic Law regarding a WAKF, WILL or Succession, where the Endower, Donor, Testator or deceased person is a Moslem. See page 384 per Okunola, JCA.

That being the case I hold that the Kebbi State Sharia Court of Appeal lacks jurisdiction to hear and determine an appeal which was based on a claim of title to land. The parties are not bloody related to each other. Appeal is therefore allowed. The decision of the court below is therefore on jurisdiction only. The matter is reverted back to the Kebbi State Chief Judge to be assigned to any Upper Area Court with relevant jurisdiction for trial de novo.

N2,000.00 costs to the Appellant.

Appeal Allowed.

Other Citations: (2001)LCN/1038(CA)