Mallam Uba Abdulkadir V. Mallam Rabiu Musa (1998)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

T

he appellant in this appeal was sued as defendant by the respondent as plaintiff at the Rent Control and Recovery of Premises Tribunal, Bukuru near Jos for recovery of possession of a house situate at No.20 Thomas Street, Bukuru. The respondent had two witnesses to prove his claim while the appellant who made a counter-claim of the house on the basis that it was given to him as a gift (hiba ‘a) in accordance with Islamic law also called two witnesses to prove his counter-claim and in his defence to the respondent claim. At the conclusion of hearing and after considering the evidence of both parties and the addresses or their respective counsel, the learned chairman and members of the Rent Tribunal entered judgment in favour of the respondent and gave him possession of the house. The appellant who was aggrieved with the decision of the Rent Tribunal appealed against it to the Sharia Court of Appeal of Plateau State holden at Jos (the lower court). Before the appeal was heard by the lower court, the appellant applied thereof for a stay of execution of the judgment of the trial tribunal and an interlocutory injunction. The respondent filed a counter-affidavit and a notice of preliminary objection on the ground that the lower court lacked jurisdiction to hear and entertain the appeal. The notice of objection was heard by the lower court and in the end it was upheld by the said lower court which held that it had no jurisdiction to entertain an appeal from the Rent Tribunal. The appellant’s appeal was accordingly struck out. The appellant was not satisfied with the ruling of the lower court and he appealed against it in this court.

At the hearing of the appeal, the learned counsel to both parties respectively adopted their briefs of arguments earlier filed in the case in accordance with the rules of this court and urged us to decide the appeal in their favour. The learned counsel for the appellant urged us to allow the appeal and order the lower court to hear the appeal on its merit or direct that the case be remitted for retrial by the trial court. The learned counsel for the respondent on the other hand urged us to dismiss the appeal and affirm the ruling of the lower court that it had no jurisdiction to hear or determine the appeal. In the notice of appeal, the appellant filed grounds of appeal upon which he formulated in his brief of argument the following issue for determination in the appeal:-

“Issue for determination

3.01 Whether or not the Sharia Court of Appeal has jurisdiction to hear and determine the appellant’s appeal before it.”

In the respondent’s brief, the above issue for determination is adopted with a modification or re-wording which does not affect its substance.

In arguing the only issue for determination as reproduced above, the learned counsel for the appellant referred to their counter-claim at the trial court which he said was for title to the land. It is also submitted that the dismissal of the said counter-claim was made by the trial tribunal in disregard of the Sharia rule on the burden of proof – by at least a male witness and the claimant’s oath which was satisfied by the appellant in the case. The case of Hada v. Malumfashi (1993) 7 NWLR (Pt.303) 1; (1993) 7 SCNJ 504 and pages 510-511 of Thamarud-dani a Commentary on Risola of Ibn Abi Zaid by Sbeikh Saleh Abdulsami Al-Abi were cited in the brief in support of the submission. In the second arm of the submission, in the appellant’s brief, filed in this court are referred to in the brief and it is submitted that they raised substantial issues of Islamic law within the meaning of s. 242(2) (c) of the 1979 Constitution (as amended). It is pointed out in the brief that the lower court is expressly conferred with jurisdiction to hear an appeal involving “any question of Islamic law regarding wakf…” It is further submitted that the jurisdiction of an appellate court like the lower court in the present case is determined by reference to the ground of appeal filed before it. Consequently, it is argued, that the lower court in the present case had the exclusive jurisdiction to hear the appeal before it as it involved or raised issues of Islamic law evidence relating to the burden of proof- see Usman v. Umaru (1992) 7 NWLR (Pt.254)377: (1992) 7 SCNJ (Pt.2) 388 at p. 400 cited in support of the argument Thus it is finally submitted in the brief that the jurisdiction of an appellate court is determined by the issues for determination as raised in the grounds of appeal. Consequently, we are urged to hold that the lower court was wrong by declining jurisdiction by striking out the appellate appeal before it and to allow the appeal under the issue as argued. We are also urged in the brief to set aside the ruling or the lower court and order it to hear and determine the appellant’s appeal on merit. In the alternative, we are urged in the brief to order the hearing of the appeal by the High Court (of Plateau State).

In the respondent’s brief, the argument are also based on the single issue formulated by the appellant (as above reproduced). It is submitted in the brief that in determining whatever or not the Sharia Court of Appeal has jurisdiction to determine a case, reference is to be made not only to section 240 and 242 of the 1979 Constitution (as amended) but also to other laws which also made provisions on jurisdiction or competence of the Sharia Court to hear and entertain .appeals to it from Area Courts. Reference is made in this regard to sections 10 and 11 of the Sharia Court of Appeal Law (Cap. 122) Laws of Northern Nigeria 1963 (Vol III) which make such provision. See also Usman v. Umaru (supra) at p. 400 cited in the respondent’s brief which is also cited in the appellant’s brief. In particular, reference is made in the respondent’s brief to section 242(1) of the 1979 Constitution (as amended) which provides that the Sharia Court is empowered to exercise the supervisory jurisdiction as conferred on it under subsection (2) ‘”in addition to such other jurisdiction as may be conferred upon it by the Law of the State”. It is submitted that if the provisions of sections 10 and 11 of the Sharia Court of Appeal Law (supra) of Plateau State are read together with section 242 of the 1979 Constitution it will be clear that the normal or regular jurisdiction of the Sharia Court of Appeal is to hear and determine appeals involving question of Islamic personal law emanating from the decision or (a) Upper Area Court; and (b) Area Court of any grade in accordance with section 10(1) of its Law, Consequently, it is argued in the brief that the appellant’s argument that the Sharia Court of Appeal has jurisdiction or competence to hear an appeal from the decision of Rent Control and Recovery of Premises Tribunal is misconceived.

The respondent’s brief also refers to the case of Usman v. Umaru (supra) cited by the appellant and it is submitted that the case did not decide what was alleged by the said appellant that once a question of Islamic law is raised in the grounds of appeal the appeal will automatically go to Sharia Court which will then have jurisdiction to determine it irrespective of which court or tribunal heard or tried the case, It is argued that the Supreme Court in that case was only considering the jurisdiction of the three superior courts in the State and made a passing remark that recourse is to he made to the nature of the question or issues raised in the appeal.

Thus the case though relevant is not helpful to the appellant in the present case. The brief also distinguished the case of Usman v. Umaru (supra) which emanated from the Area Court from the present case which emanated from a Rent Tribunal specific reference is made in the respondent’s brief to section 23(1) of the Edict establishing the Rent Tribunal of Plateau State (i.e. LNN No.7 of 1995 [supra]) which expressly provides that an appeal from the said tribunal goes “to the High Court having jurisdiction in the area of the tribunal …” It is argued that the provision of s. 23(1) of the Edict which does not contradict the provision of the Constitution is binding and subsisting and does not conflict with the decision in Usman v. Umaru (supra). The brier further argues that by the combined effect of section 240 and 242 of the 1979 Constitution and the provision in section 10 of the Shari a Court of Appeal Law of Plateau State (supra). the Sharia Court of Appeal of a State, or of Plateau Slate can only entertain an appeal or appeal from the decisions of Area Court notwithstanding any question raised in the decision of other courts or tribunals. It is further contended in the brief that the appellant deliberately couched his counter-claim or the trial court to raise question on issues of Islamic law of wakf/hubs so as to confer to the Sharia Court of Appeal a jurisdiction that it did not have under the law. If the appellant wanted to raise question of Islamic law he should have filed a fresh action in the Area Court rather than filing a counter-claim at the Rent Tribunal and raising Islamic law therein.

The case of Hada v. Malumfashi (supra) and the authority of Thamarudani (supra) cited by the appellant are also said to be inapplicable to the present case and can only be of assistance to the said appellant if the counter-claim was proper before the tribunal and was therefore considered or determined in its merits. The trite law that parties cannot by consent or through their grounds of appeal confer jurisdiction on a court where none exists is also re-stated in the respondent’s brief under the issue. See I. K. Martins (Nig.) Ltd. v. UPL (1992) 1 NWLR (Pt.217) 322; and Ndaeyo v. Ogunnaya (1977) 1 S.C. 11 at p. 25. Finally we are urged by the respondent to hold that the lower court (the Sharia Court of Appeal of Plateau State) was right when it upheld the respondent’s preliminary objection and struck out the appellant’s appeal for want of jurisdiction.

I have given due consideration to the above submissions of learned counsel of the parties in the respective briefs of arguments. From the facts and circumstances of the present case at the trial and appellate lower courts, the first and crucial point which will be the yardstick in determining the interlocutory appeal is, in my humble view, to determine which between the claim of the plaintiff/respondent and the counter-claim of the defendant/appellant at the trial tribunal will be relied upon or used for the purpose of determining the jurisdiction of the lower court or its competence to hear and determining the appeal brought before it from the said trial Rent Tribunal. On this point, it is trite that the jurisdiction of a court is determined by the plaintiff’s claim rather than by the counter-claim of the defendant. See Tukur v. Government of Gongoja State (1989) 4 NWLR (Pt. 117) 517; Yalaju – Amaye v. Associated Registered Engineering Contractors Ltd. (1990) 4 NWLR (Pt.145) 422; Umaru v. Dawa (unreported) appeal No. CA/J/60s/90 of 11/2/91; and Korau v. Korau (1998) 4 NWLR (Pt.545) 212 at p. 222. By applying the principle to the present case, the claim of the plaintiff/respondent (at p.3 of the record) prevails over the counter-claim of the defendant/appellant which was filed after the plaintiff had closed his case. The said claim of the plaintiff/respondent should therefore be used or invoked for the purpose of determining the jurisdiction of the trial Rent Tribunal and a fortiori that of the appellate lower court (i.e. the Sharia Court of Appeal of Plateau State). Probably if the defendant/appellant had filed his counterclaim on time and raised the issue of Islamic law before the hearing of the case at the tribunal, the tribunal would have also declined jurisdiction. The claim of the plaintiff/respondent at the trial tribunal simply reads “claim: Possession only.”

whereas the defendant/appellant’s counter-claim which cannot be found anywhere in the record is said to be for title to the land pursuant to wakf/hubs in favour of the said defendant/appellant under Islamic law. Apparently, the Rent Tribunal which is established by an edict for the recovery of premises and for rent matters will have no jurisdiction to hear and determine the counter-claim based on or bordering on Islamic personal law. Consequently, once the trial tribunal lacks jurisdiction to entertain the dispute as per the counter-claim, the Sharia Court of Appeal being the appellate court will also lack the required jurisdiction over the appeal brought from the decision of the trial tribunal:- see Matari v. Dangajadima (1993) 3 NWLR (Pt.281 ) 266; and Ibrahim v. Muhammadu (1998) 4 NWLR (Pt.545) 176 at p. 222.

The issue of jurisdiction or competence of a court being a fundamental one has its prerequisites, One of such prerequisites is that the subject-matter of the action must be or fall within its jurisdiction and there should be no feature in the case which will prevent the court from exercise of its jurisdiction – see Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Matari v. Dangajadima (supra). In the present case the subject-matter of the dispute by reference to the claim which was for recovery of possession simpliciter was outside the jurisdiction of the lower court. Furthermore, the fact that the appeal emanated from the Rent Tribunal is another feature which prevented the said lower court from the exercise of its jurisdiction. It is pertinent here to refer to the provision of sections 10 and 11 of the Sharia Court of Appeal Law of Plateau State (supra) and section 23(1) of the Rent Control and Recovery of Premises Edict, 1994 of Plateau State (supra) both of which are also features that effectively deprive or oust the jurisdiction of the lower court from entertaining the appeal before it in the present case as rightly submitted by the respondent’s brief. In the Sharia Court of Appeal Law (supra) it is provided that the Sharia Court of Appeal is competent to hear appeal from the Upper Area Court and other Area Courts of any grade. In the Rent Edict (supra) it is also provided that any landlord or tenant who is aggrieved by the decision of the Rent Tribunal may appeal to the High Court having jurisdiction in the area of the tribunal. Consequently, in my opinion, in view of the above provisions of the two laws which are valid and subsisting the lower court has no jurisdiction to hear or entertain the appeal in the present case as it rightly held in its ruling on the preliminary objection which is the subject of this appeal. It must be pointed out that the provision of section 242 of the 1979 Constitution under which the appellant heavily relies in his submissions in favour of jurisdiction of the lower court is exercisable in addition to or subject to the jurisdiction conferred on it by the Law of a State. Thus in the present case since the two laws have expressly ousted the jurisdiction of the said lower court over rent claims or rent tribunal and vested it over the Islamic personal law or Area Court, the provisions of the said laws should be observed strictly without any breach. In other words, any purported exercise of jurisdiction by the lower court over the subject or the tribunal expressly excluded from its jurisdiction by the statutes will be a breach of the law and any proceedings conducted without the required jurisdiction will amount to a nullity no matter how well conducted they may be – See Madukolu v. Nkemdilim (supra); Bronik Motors Ltd v. Wema Bank Ltd. (1983) 1 SCNLR 296; and Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377. On the cases and other authorities cited in the appellant’s brief, agree with the submission in the respondent’s brief that they are, even if relevant, misconceived or are more helpful to the respondent’s case. The case of Usman v. Umaru (supra) may be relevant but in view of my observation above, it is more helpful to the respondent. In that case, the Supreme Court considered in details the appropriate appellate court where the decision was given by a Customary Court or an Area Court and the passing remark made in which reference- was made to the grounds of appeal was aimed at a situation where it is not clear from the claim or circumstances of the case which is the appropriate court the appeal should go between the Customary Court of Appeal, the Sharia Court of Appeal or the High Court of a State. Thus, the case is inapplicable to and therefore distinguishable from the present case where it is clear from the onset that the appeal which was on recovery of possession and from the decision of the Rent Tribunal should more appropriately be lodged in the High Court of Plateau State rather than in the Sharia Court of Appeal which has no jurisdiction to hear or determine it. Again the authority cited from Islamic law textbook: Thamarud – Dani (supra) is not helpful to the appellant at this stage since we are dealing with an interlocutory appeal. The authority which is on the burden of proof under Islamic law is or will be more relevant when we come to the stage of hearing the merit or substance of the appellant’s appeal. It is to be noted that the lower court has not as yet heard the substance of the appellant’s appeal before it and our determination of the point at this stage will pre-empt or prejudge the issue which is the subject of an appeal to be subsequently heard or determined by the lower court. A predetermination of substantive action or appeal in an interlocutory stage as the appellant wants us to do in the present case has been frowned on and described as improper by our superior courts – see Orji v. Zaria Ind. Ltd (1992) 1 NWLR (pt.216) 124; Akapo v. Hakeem-Habeeb (1992)6 (1992) 6 NWLR (Pt.247) 260: and African Continental Bank Ltd. v. Awogboro (1996) 3 NWLR (Pt.437) 383.

In the final analysis and in view of my above considerations of the appeal.

I found it to be lacking in merit and must consequently be dismissed. I accordingly hereby so dismiss it. The ruling of the lower court – Sharia Court of Appeal. Jos- that it has no jurisdiction to entertain the appeal is hereby affirmed. The order requested by the appellant to direct the lower court to hear the appeal on merit or its hearing by the High Court is hereby refused. Since his appeal was only struck out by the lower court, the appellant has the option of filing an appeal at the appropriate High Court having jurisdiction to hear the appeal against the decision of the trial Rent Tribunal. I assess the costs of this appeal at N 1000.00 which I hereby award in favour of the respondent.

Other Citations: (1998)LCN/0427(CA)