Maina Buba & Anor. V. Tela Musa & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
TSAMIYA, J.C.A.
This is an appeal against the decision of the Sharia Court of Appeal, Damaturu in Yobe State. The respondents, as plaintiffs, sued the appellants – as defendants, before the Upper Area Court, Yusufari, in Yobe State, claiming, re-possession of the farmland belonging to their father, which they inherited but on migration to Gazama, they left it. When they came back they met the farm in possession of the appellants.
The case went on trial, whereby the trial court without hearing any evidence from both sides and after inspecting the farmland in dispute gave judgment in favour of the appellants. Being dissatisfied with the decision of the trial court, the respondents appealed to the State Sharia Court of Appeal, Yobe, where the decision of the trial court, was set aside in favour of the respondent on the principle of Gasb’ (usurpation). The appellant being not satisfied with the decision of the Sharia Court of Appeal, then appealed to this court on two grounds of appeal as follows:
- The Sharia Court of Appeal erred in law in assuming jurisdiction over land matters thereby occasioning a miscarriage of justice.
Particulars of error
(a) The subject matter of the case was for a declaration of title over farmland.
(b) The jurisdiction of the lower court is contained in section 277 of the Constitution of the Federal Republic of Nigeria, 1999.
- The lower court erred in law in limiting right of appeal to Court of Appeal to 30 days.
Particulars of error
The law provides for three months period within which an aggrieved party can appeal.
It is to be noted that even though the appellant engaged a counsel, in the name of Aliyu A. Shehu, Esq., to represent him in this appeal, but the counsel abandoned his duty by refusing to appear before this court during the hearing of the appeal, talkless of filing brief as well as formulating issues for determination in this appeal.
The respondents, since no appellants’ brief filed, they are not expected to file respondents brief.
I should like to remind counsel that in all cases, criminal or civil, they should realise the enormous responsibility that they undertake when asked to shoulder the heavy burden of prosecuting or defending his client’s case. The ethics of the profession require and dictate that counsel should devote himself completely to this task, so that he may watch meticulously and constantly the interest of his duties in every case. This is one reason why our profession is called honourable. But every Barrister is expected to know his various, onerous, difficult and dedicated duties to his client. The counsel must conduct his client’s case to the end provided he is paid a proper fee.
If counsel can take his position, element of expectation in the conduct and preparation of cases would be injected.
But the great pity is that, from experience, some counsel do abandon this responsibility. This may lead the appeal or the case to be lost due to want of prosecution and himself (counsel) rendered liable for negligence to his client.Considering the position of this appeal this court will endeavour to formulate an issue or issues based on the facts, evidence, the records of proceedings and the grounds of appeal filed. See Order 7 rule 3(1) of this court’s Rules, 2002.
Thus this court formulates the following issues:
(1) Whether the Sharia Court of Appeal have jurisdiction to entertain the case having regard to section 277 of the 1999 Constitution of Nigeria. If the answer is in the negative, then,
(2) Whether the judgment of the trial court can stand in view of the principle of Islamic Law applicable in the circumstances of this case.
Before considering the issues, let me briefly state the facts of this case leading to this appeal.
In the trial court, (Upper Area Court 1, Yusufari) the respondents sued the appellants claiming title of ownership to a farmland they inherited from their father Mallam Halilu Dokeda Shental. They alleged that their father first cleared the bush and established the farm and has been farming on it for years together with the respondents. Then later on both respondents due to economic situation after the death of their father, migrated to another area in south. After coming back home, to clear the farmland for farming, the farmland was found in possession of the 1st appellant who refused to surrender it back to the respondents.
The appellant’s case was that, after the respondents left, the farmland on the directive of the village Head, falls in the hands of the 2nd respondent who gave it to the 1st respondent to cultivate.
Having stated the facts of this case, I now turn to issues. I will start with first issue.
This issue touches the jurisdiction of the Sharia Court of Appeal.
Issue of jurisdiction however, is both fundamental and elementary principle in the adjudicatory process, that where the jurisdiction of the court or the Judge – is in issue in respect of a matter, that issue must first be considered and disposed of. See Kalio v. Daniel-Kalio (1975) 2 SC 15. This is because any determination in the absence of jurisdiction is a nullity. See Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1.
The jurisdiction of the Sharia Court of Appeal is constitutional and circumscribed as prescribed in section 277(2) of the Constitution, 1999.
“Section 277(2) provides as follows:
- 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.
It seems to me that, the section is unambiguous on a fair construction that the jurisdiction of the Sharia Court of Appeal is confined to and limited to all questions of what is termed ‘Islamic personal law’; in other words, Islamic personal status, regarding the matters prescribed in sub-section 2(a-e). These subsections relate to marriage and its dissolution, family relationship and guardianship of infants. They also include wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. Included is the determination of any question of Islamic personal law regarding a Muslim an infant – prodigal, person of unsound mind, on the maintenance or guardianship of a physically or mentally infirm Muslim. In all other cases where the parties have requested the court to determine the case in accordance with Islamic personal law.
It is well settled by Madukolu v. Nkemdilim (1962) I All NLR 587; (1962) 2 SCNLR 341, and numerous other decisions of this court and the Supreme Court that a court has and only exercise jurisdiction when:
- it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
- 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
- the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
There can be no doubt in the instance case that on analysis, the facts of the case concern competing claims to the ownership of the farmland and being so the dispute cannot fit in any of the matters listed in section 277(2)(a-e) of the Constitution.
It is pertinent to note that this issue raised above, 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 is title to the land simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. See: Abuja v. Bizi (1989) 5 NWLR (Pt. 119) 120; Ummaru Alhaji Garba v. Adamu Dogonyaro (1991) 1 NWLR (Pt.165) 102; Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 and Korau v. Korau (1998) 4 NWLR (Pt. 545) 212.
Having answered the issue 1 in negative, in the interest of justice, it is necessary to consider issue 2 in this appeal. The question under this issue is whether the decision of the trial court can stand having regard to the Islamic law procedure applicable in this case.
Under the Islamic law procedure, the plaintiff after presenting his claim, and if denied by the defendant, the trial starts. The plaintiff was to produce his evidence in support of his claim. See page 9 of Ihkamul, Ahkam, where it says:
‘The plaintiff must prove his case (by bringing witnesses to testify for him)”
The defendant, on the other hand, is required to take an oath in the event of failure of the plaintiff to bring forth witnesses. See page 9 of Ihkamul, Ahkam it says:
“The defendant is required to take an oath in the event of failure of the plaintiff to prove his claim.”
From the record of this appeal, it is not shown that the trial court followed this procedure. The plaintiffs were shown to have stated their claim against the defendants, and the defendants stated
their defence. There was nothing to show that the plaintiffs were asked to bring forth their witnesses to prove their claim. What was shown to have taken place after the parties started their position, the case was adjourned to enable the trial Judge visit the farmland in dispute which he did on 26/5/98. During the visit the measurement of the farmland was taken. Neither the inspection nor taking the measurement of the farmland was done with the plaintiffs or their representatives present. After the inspection the case was adjourned for judgment, which judgment by the record was delivered in favour of the defendant but in the absence of the plaintiffs. This is the procedure followed by the trial court.
It is pertinent to note, that the Islamic law does not favour the trial of a claim in the absence of the plaintiff or the defendant.
Despite these irregularities, the trial Judge went ahead and gave his judgment in favour of the defendant basing his reasons as follows:
“Because the place has been vacant for long about 20 years, and, based on the law of the land which says, any land which has been vacated for 12 years it is going to be return back to the rulers to cultivate it or to give it to anyone to use it, it is on this, this court decided that from today this farmland is under Maina Buba, based on the gift by the village head to Alhaji Buro who gave it to Maina Buba since 1977.
This court confirmed the gift. … ”
I have taken pains to go through the relevant procedure rules under Islamic law, and I cannot place my hands on any rule vesting a Judge power to give judgment not based on evidence. This judgment of the trial court in my view, was not based on any evidence.
Under Islamic law, it is trite that the Judge must give his judgment in the light of the evidence given by witnesses, as it is provided in the book of Ihkamul, Ahkam, page 14 where it says:
“The Judge depends on the evidence of witnesses in giving judgment.”
In his judgment, the trial Judge relied on the following:
- That the farmland has been vacant for long about 20 years.
- There is a law of the land which provides that any land, that remains for 12 years as vacant it should be reverted to the village head for re-allocation.
- The farmland was on gift since 1979.
These facts were not supported by any piece of evidence. The conclusion that could be reached is that the Judge gave his judgment not in the light of the evidence given by witnesses, and this contravenes the Islamic law relating to judgment. Giving judgment by a Judge, not based in the light of the evidence is strictly forbidden.
See Ihkamul, Ahkam, page 14 where it says:
“It is unanimously agreed by jurists that a Judge should base his judgment upon what he learned from the evidence of witnesses.”
And “Imam Malik (may almighty Allah be pleaded with him) strictly forbids giving judgment not based upon the evidence of witnesses.”
Applying the above rules, the judgment of the trial court cannot stand.
In sum and for the reasons I stated above the appeal succeeds and is allowed. The judgments of the Sharia Court of Appeal, Yobe delivered on 9/1/2003 in suit No. YBS/SCA/CV/45/98 and that of Yusufari Upper Area court delivered on 28/7/98 in suit No. CV/23/98 respectively are hereby set aside.
The case is remitted back to the State grand Khadi of Sharia court of Appeal for reassigning to another Area Court Judge for hearing de-novo.
Other Citations: (2006)LCN/2065(CA)
