Lawan Mai Gana V. Ya Falmata Alhajiram (1997)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
At the Maiduguri Upper Area Court No.1 the plaintiff, now appellant instituted an action against the defendant, now respondent claiming 12 cows from the respondent.
The Upper Area Court No.1 herein called the trial court entered judgment in favour of the appellant herein, the cows were given to him.
The respondent herein successfully appealed to the Borno State Sharia Court of Appeal herein referred to as court below.
This appeal therefore is against the decision of the Borno State Sharia Court of Appeal. I reproduce the grounds of appeal as contained on the Notice of Appeal filed thus:-
- The Borno State Sharia Court of Appeal erred in law by entertaining the appeal when it clearly lacked jurisdiction over it
Particulars of Error:
(a). The claim before the Upper Area Court No. 1, Maiduguri did not disclose any issue of Islamic Law.
(b) The Notice of appeal before the lower court dated 8th June, 1993 did not disclose any issue of Islamic Law.
(c) Neither the arguments canvassed in the court below nor the judgment of the lower court involves questions of Islamic Law for determination.
(d) In the circumstances, only the High Court of Borno State is competent to hear the appeal.
- The Borno State Sharia Court of appeal erred in Law when it heard the appeal based on grounds which are incompetent.
Particulars of Error:
(a) All the grounds of appeal contained in the Notice of Appeal dated 8th June, 1993 were filed without particulars.
(b) The place of abode of the plaintiff s witnesses, weight of evidence, reliance by the trial court on a decision of the High Court and impropriety of fresh trial were all argued as grounds of appeal before the lower court despite the fact that they were not contained in the Notice of Appeal as grounds of Appeal and no leave was granted by the lower court to argue same as grounds of appeal.
- The decision is against the weight of evidence.
This court ordered briefs to he filed and exchanged. The appellant in compliance with the rules of this court filed their amended appellants’ brief by the order of this court on 27/6/95. Since then the respondent failed to file their respondent’s brief of argument. On 7/7/97 under Order 6 Rule 9(e) allowed the appellant to argue the appeal on his brief alone. Learned counsel for the appellant Mr. J.T. Gunda drew the attention of this court to their amended appellants’ brief. He indicated his reliance and adoption of same. He told the court that he has nothing more to add other than urging this court to allow the appeal.
In the appellant’s brief two issues were distilled from the three grounds of appeal filed. They read thus:-
i. Whether the Borno State Sharia Court of Appeal Maiduguri is competent to entertain an Appeal WHOSE (sic) subject matter does not border on Islamic Law, and,
ii. Whether the Borno State Sharia Court of Appeal Maiduguri is equally competent to entertain an appeal whose (sic) grounds are otherwise incompetent.
It is observed that the appellants’ counsel is perfectly in order to have raised in their original grounds issues that were never raised at the court below. In other words they raised issues of jurisdiction in their grounds of appeal for the first time in this court being Court of Appeal. The law is this that “the issue of jurisdiction, being a fundamental one can be raised at any stage of a proceeding, even in the Supreme Court, for the first time.”
See Salati v. Shehu (1986) 1 NWLR (Pt. 15) page 198 at 199.
In his brief at page 2 Mr. Gunda learned counsel for the appellant contended that the jurisdiction of the court below, i.e Sharia Court of Appeal, is spelt out in section 242 of the 1979 Constitution of Nigeria as amended, and the matters under which it could exercise jurisdiction are those enumerated in subsection (2) paragraphs (a-c) of the same constitution.
Learned counsel then contended that the yardstick for measurement is the statement of complaint of the plaintiff (Appellant) before the Upper Area Court Maiduguri. He relied on the unreported decision of this court in the case of Alhaji Adamu Maihodu v. Saidu Sarkin Kaji (unreported) Appeal No. CA/J/215/S/89 dated 25/1/90. He then reproduced the statement of claim thus:-
“……I, Lawan Mai Gana and Modu Kur the father of Audu disputed over 12 cows and that it was declared to me by the High Court that Modu Kur should give the cows, before that could take place Modu Kur died, therefore. I sued his son by name, Audu to give me my cows since his father left many cows”.
Learned counsel then submitted that reading through the provision of section 242(2)(a-c) of the 1979 Constitution of Nigeria amended the matters contemplated by the paragraphs over which the Sharia Court of Appeal could exercise appellate jurisdiction are as follows:-
(a) Questions relating to marriage concluded in accordance with Islamic Personal Law;
(b) Questions of Islamic Personal Law regarding Wakf, gift, will or succession;
Questions regarding an infant, prodigal or person of un-sound mind who is a Muslim.
Learned counsel for the appellant then emphatically submitted that a critical perusal of the statement of claim of the appellant does not fall within any of the matters enumerated in paragraphs (a-c) herein before itemized. The claim is purely that of dispute over cows, he concluded. It is therefore outside the jurisdiction of the Sharia Court of Appeal. That being the case, counsel submits, the entire proceedings and judgment of the Sharia Court of Appeal, Maiduguri is a nullity as it was delivered without jurisdiction. He relied on Solari v. Shehu (1986) 1 WLR (Pt 15) 198/199 and F.C.M.B Ltd. v. Abiola and Sons Ltd. (1991) 1 NWLR (Pt. 165) 14 & 16 – 19 and a host of others.
It is manifest from the record that the respondent has not been represented by any counsel and no brief was filed by the respondent this court, under the authority of Order 6 Rule 9E, deemed the appeal as having being taken on the appellant’s brief. The respondent relied on her case as reflected in the Records of Proceedings of the lower courts.
Having considered the relevant ground of appeal and the first issue the proper issue to be thrashed out is whether the court below (Sharia Court of Appeal Borno State) has jurisdiction to entertain the appeal.
It is the law that it is the claim of the plaintiff at the trial Court that eventually determines the jurisdiction of the Sharia Court of Appeal – Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR Part (117) 517; or (1989) 8 SCNJ P1: Engineer Samuel Yalayu-Amaye v. A.R.E. Cons. Ltd. (1990) 4 NWLR (Part 145) 422.
If I may visit the statement of claim of the appellant at the Borno Upper Area Court. That claim reads thus:-
“I Lawan Mai Gana and Modu Kur the father of Audu disputed over 12 cows and that it was declared to me by the High Court that Modu Kur should give the cows, before that could take place Modu Kur died, therefore I sued his son by name Audu to give me my cows since his father hay left many cows ….”
From the above claim one can clearly and easily see that the claim relates to the ownership of disputed cows. The parties are not related looking for the estate of their deceased father or Grand father for distribution. The appellant is not saying that the respondent is keeping an estate of his deceased father which has not been shared.
Far from that. There is no element in the claim to suggest that an issue within the province of Islamic Personal Law is involved. It relates to the ownership of disputed cows. Can we therefore say that the Borno State Sharia Court of Appeal has the jurisdiction to entertain the appeal leading to the judgment appealed against.
The jurisdiction of the Sharia Court of Appeal throughout this country is governed by the Provisions of Section 242 (2) of the 1979 Constitution as amended. Even though between 1979 – to 1993 up to 1995 there were some instances of legislative interpolations none the less the position remains the same. The legal conclusion is that once the issue on appeal is title to land or ownership of a thing simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. It is the High Court of a State that can entertain same. Abuja v. Bizi (1989) 5 NWLR (Pt. 119) 120; Garba v. Dogo;n Yaro (1991) 1 NWLR (Pt.165) 102; Isa v. Kado (unreported) suit No. CA/J/136/S/88 delivered on 21/6/89; Usman v. Umaru (Unreported) Suit No. CA/J/325/85 delivered on 16/10/85.
The Supreme Court recently has affirmed the position taken by the Court of Appeal in the case of Usman v. Umaru (1992) 7 SCNJ (Pt. 11) 388 that the Sharia Court of Appeal had no jurisdiction to entertain the appeal as questions regarding Islamic Personal Law are not involved.
There is what I used to think is merely academic argument to the effect that in Decree No. 107 of 1993 the word “Personal” has been deleted leaving the phrase Islamic Law. Whether it enlarges the jurisdiction of the Sharia Courts of Appeal in the country. Because Islamic Law definitely is over and above Islamic Personal Law. The former includes all aspects of Islamic Civil matters plus criminal law while the latter is restricted to Islamic Personal Law as provided by section 242 (2) (a-b) of the 1979 Constitution of the Federal Republic of Nigeria as amended.
I think such argument is quite uncalled for. The deletion of the word personal does not, in my view, confer additional jurisdiction on the Sharia Court of Appeal. In Usman v. Kareem (1995) 2 NWLR (Pt.379) 537/541 the Supreme Court not being unaware of the so called deletion in Constitution (Suspension and Modification) Decree No. 107 of 1993 held the position before 1993. The Supreme Court in the above case says;-
“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, 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 provision of subsection (2) of that section. Subsection (2)(c) 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.”I think i will hold as I held in the unreported case of Ali Sugulma v. Mohammed Isabe Suit No. CA/J.113/S/94 delivered on 11th day of July, 1997 thus:-
” Since in 1995 the Supreme Court held that the jurisdiction of a Sharia Court of Appeal of a state is limited to the matters provided under section 242 (2)(a-e) of the 1979 Constitution as amended despite the existence of Decree No. 107 of 1993 I will hold that any subsequent alterations, amendments and or deletions with regard to the provisions of section 242 of the 1979 Constitution did not add or subtract anything. Those alterations do not increase or enlarge the jurisdiction of the Sharia Court of Appeal of a state”.
Consistently with the above, “I hold that the Borno State Sharia Court of Appeal, herein lower court, lacks jurisdiction to entertain this appeal since the claim of the plaintiff/appellant at the trial court was an issue involving or pertaining to ownership of cows without more it does not concern itself with any inheritable estate being withheld by anybody. The claimant or plaintiff is not the deceased person.
In the result I uphold the submissions of the learned counsel for the appellant that the Sharia Court of Appeal Borno State has no jurisdiction to entertain the appeal before it, in that the claim of the appellant as plaintiff at the trial Upper Area Court did not affect Islamic Personal Law matters as enumerated under Section 242(2)(c) of the 1979 Constitution of the Federal Republic of Nigeria as amended. I am of the firm view that the intendment of the legislatures then was to confine the powers and jurisdiction of the Sharia Courts of Appeal to matters of Islamic Personal Law. The mere deletion of the word “personal” perse without amending other wings of section 242(2) (c) of the 1979 Constitution as amended cannot possibly and reasonably too enlarge the jurisdiction of the Shaira Courts of Appeal in this country.
That being the case, this appeal succeeds and it is allowed on the issue of jurisdiction alone. There is no necessity of going further to do otherwise is to embark on a wild chase leading to a nullity. The decision of the Borno State Sharia Court of Appeal is declared a nullity by me for want of jurisdiction. It is accordingly set aside. This appeal is therefore remitted back to the Borno State Chief Judge for determination by the State High Court. I make no order as to costs.
Other Citations: (1997)LCN/0270(CA)
