Sarki Makada Ibrahim V. Dije Muhammadu & Anor. (1998)

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MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the judgment of the Kaduna State Sharia Court of Appeal in which the decision of the Upper Area Court Zaria was set aside and that of trial Area Court No.3 Sabon Gari Zaria was restored.

I think it will be of a considerable clarity in further elucidation of the real issues involved in this appeal for the purposes of tracing the genesis of this case from the trial court.

The plaintiffs were Dije Muhammadu Danladi and 8 others. They instituted that action against the defendant at Area Court No.3 Sabon Gari Zaria for that court to cause the estate of Dije’s deceased husband to be distributed among his lawful and surviving heirs. The estate, however, is a house situate at Kofar Fada Zaria City. Judgment was given in favour of the plaintiffs and against the defendant. The latter was said not to be entitled to any share. The house in dispute was auctioned and third party purchased same from the court and the proceeds shared among the heirs.

On appeal to the Upper Area Court, through a letter from Inspectorates Division of the Kaduna State High Court, the Upper Area Court held that the Sabon Gari Area Court tried the matter without jurisdiction. Based on this, and other defects in the proceedings in the trial court, the learned Upper Area Court Judge, as he then was, allowed the appeal and ordered for a retrial before another Area Court within Zaria city where the house in dispute is situated.

Dissatisfied with the above decision the plaintiffs – Dije Muhammadu and Dije Ali (both females) appealed to the Shari” Court of Appeal who sat in Zaria.

It is interesting to note that during the evaluation of the records of proceedings of the trial court and the inspectorate’s letter the Upper Area Court remarked that the trial court ignored certain correspondents between Zazzau Emirate council and the trial court on the fact that the house in dispute or the so called estate of the deceased to be shared was in fact not deceased estate. It belongs to the Zaria Emirate Council.

On appeal to the Sharia Court of Appeal hereinafter referred to as court below judgment was entered in favour of the plaintiffs, respondents herein. Appeal was allowed and judgment of the trial Area Court restored in its entirety.

The defendant herein appellant aggrieved by the decision of the court below appealed to this court on one ground attacking the jurisdiction of the Sharia Court of Appeal Kaduna State. The sale ground read thus…

The appellant, through his counsel Mr. J.B. Daudu SAN, urged on us to set aside the decision of the court below and that of the trial Area Court on the ground that both courts lacked jurisdiction to entertain same. He insisted that the judgment and orders of the court below in this matter are a nullity.

On the orders of this court under the rules of this court the appellant through his counsel filed an appellant’s brief which was duly served on the respondents. The latter chose not to file any brief. On the hearing date learned counsel for the appellant relied and adopted their brief.

In the appellant’s brief one issue was submitted for the consideration of the appeal by this court, namely:-

“Whether in the light of the Area Courts law, 1968(sic) the Area courts jurisdiction Notice 1977 and the decisions of the Supreme court in Matari & Ors. V. Dan-Galadima & Anor. (1993) 3 NWLR (Pt.281) 266, the Area Court No.3 Sabon Gari Zaria has jurisdiction to determine a dispute in Zaria city which is clearly outside its jurisdiction?”

It is obviously pertinent to observe that since the respondents herein decided voluntarily to refrain from filling the respondents’ brief to counter the issue or issues raised in the appellant’s brief he will be deemed as adopting the issues formulated by the appellant. The law, with respect was succinctly stated by my Lord Karibi-Whyte J.S.C. in Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391 at 421-422 in effect that

“A respondent who filed brief of argument but failed to formulate issues for the determination therein will be taken to have adopted the issues formulated by the appellant in his brief.I want to say that the scope of the ground of appeal filed concerns itself with the jurisdiction of the Sabon Gari Area Court No.3 Zaria to hear and determine the subject matter of the action. Again the warrant of the Sabon Gari Area Court No. 3 Zaria has not been introduced in this appeal. That being the case it may be possible in the absence of the specific Area Court warrant to presume regularity.

However, since learned counsel for the appellant cited section 19(3) of the Area Court Law 1968 it may not be out of place if this court relies on the provisions thereof and other relevant issues to decide for itself the issue of jurisdiction of the court below and by extension, that of Sabon Gari Area Court No.3 Zaria. It provides thus:-

19(3) Subject to the provisions of any written law, all land causes shall be tried and determined by an Area Court having jurisdiction over the area in which the land which is the subject matter of the dispute is situated and to the extent of jurisdiction and power of such court.”

The learned Senior Advocate did not stop here. He proceeded to cite a specific jurisdiction Notice of 1977 wherein the jurisdiction of the Sabon Gari Zaria Area Court NO.3 was spelled out. This jurisdiction Notice of 1977 was duly issued by the Chief Judge of Kaduna State. Paragraph 3(1) of the Area Court (Jurisdiction) Notice 1977 reads:

“Every Area Court in the first column of the schedule having its location at the place specified opposite to its name in the second column of the schedule has in accordance with the provisions of the section 18 of the Edict, within the area specified opposite to its name in the third column of the schedule, the jurisdiction of the grade specified opposite to its name in the column of the schedule varied as specified opposite to its name in the fifth column of the schedule and is constituted as specified opposite to its name in the sixth column of the schedule.”

From the above Notice and the table thereto each of the two courts has its own exclusive jurisdiction and grade assigned to it. There is no overlapping at all. It is noted also that the relevant law applicable is the Islamic Law of the place where the property is situated. The house is situate, at Kofar Fada in Zaria city. The law stated above is translated in the modern common law language as Lex situs – (latin phrase).

The Area Court No.3 Sabon Gari Zaria is therefore limited to Zaria Sabon Gari Township and cannot possibly extend to include land matters falling within the jurisdiction of the Zaria City Area Courts without a clear directive of the Chief Judge of the Kaduna State within his powers under 3(1) of the Area Court Edict of 1967.

I agree therefore that the action of the Sabon Gari Area Court No.3 Zaria in hearing and determining the suit was a nullity. The matter falls outside its restricted and legitimate jurisdiction. Consequently since the trial court lacks the jurisdiction abinitio to hear “the suit the court below fortunately or unfortunately must lack jurisdiction to entertain the appeal coming from a court without jurisdiction. The court below should have declined jurisdiction rather than mentioning the attack on the jurisdiction of the trial court and proceeding to entertain the appeal. Matters surrounding the provisions of section 19(3) of the Area Court Law 1968 and the jurisdiction Notice 1977 have received the blessing of the Supreme Court. Those provisions were judicially interpreted fairly recently by the Supreme Court in the case cited by the learned SAN namely: Matari & Ors. V. Dan Galadima & Anor. (1993) 3 NWLR (Pt.281) 266.

The Sharia Courts of Appeal in this country cannot be possibly left out from the schedule of things even though different Law (Sharia) applies in those courts. It is obvious that such courts are mainly concerned with doing substantial justice free from common law procedural shackles. I cannot see how these courts could escape the issues of jurisdiction where and when duly raised. It is not therefore tasty, with tremendous respect to those Kadis, to brush aside the issue of jurisdiction of the trial court properly raised. Karibi- Whyte. J.S.C. stated to the effect that:-

“It is well settled and decided cases are numerous in support of the proposition that one of the pre-requisites of a court, in the exercise of its jurisdiction, is that the subject matter of the action must be within its jurisdiction and there should be no feature in the case, which prevents, the court from the exercise of its jurisdiction – See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587. Where the subject matter is not within the jurisdiction of the court adjudicating, there is nothing to adjudicate, and the decision so reached in the absence of jurisdiction is a nullity. Similarly, all subsequent proceedings are a nullity.”See Matari v. Dangaladima supra at P. 281 paragraphs B-D. (italics mine for further emphasis).

With due respect this erudite jurist of the Supreme Court Karibi- Whyte J.S.C. has said it all. Where as in this appeal the trial court heard and determined a case without jurisdiction its decision and orders are a nullity. That being so the court below which entertained the appeal subsequently did so without any jurisdiction. Its decisions and orders are therefore not only void but a nullity and I so hold. Appeal is pregnant with a lot of merits. It is allowed. The decisions and orders of the Sharia Court of Appeal Kaduna State (Court below) are set aside. The orders of the Upper Area Court Zaria delivered on 12/12/90 are hereby restored.

Costs assessed at N800.00 is awarded to the appellant herein.

Other Citations: (1998)LCN/0392(CA)