Sarkin Kudu Mohammad Maidawa V. Sarkin Dawaki Husaini (2000)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The Plaintiff, now, Appellant, Sarkin Kudu Muhammadu Maidawa instituted an action, before the Upper Area Court Bauchi, against Sarkin Dawaki Hussaini, now Respondent, claiming: a house allegedly belonging to (the Appellant’s father Sarkin Kudu Usmanu).
At the end of the hearing and investigation of the matter, the Upper Area Court now, the trial Court, entered judgment in favour of the Appellant. Aggrieved by the decision of the trial Court, the Respondent appealed to the Sharia Court of Appeal Bauchi State hereinafter referred to as Court below.The learned Kadis after thorough review of the records, allowed the appeal and set aside the judgment of the trial Court and awarded the house in dispute to the Respondent.
The Appellant, not being; satisfied with the decision of the court below appealed to this Court and filed an amended Notice of Appeal containing the following two grounds of appeal together with their particulars:
Grounds of Appeal
- The learned Khadis of the Sharia Court of Appeal Bauchi erred in law when it determined the appeal without jurisdiction, contrary, to the provisions of Section 242(1) and (2) of the 1979 Constitution of the Federal Republic of Nigeria as amended which renders its entire hearing of the appeal and judgment a nullity.
Particulars of Error in Law
(a) The jurisdiction of the Sharia Court of Appeal as shown at Section 242(1) and (2) of the 1979 Constitution as amended only relates to questions of Islamic personal law.
(b) It is the Statement of claim and or complaint before the trial Court that determines the jurisdiction of a court.
(c) At p.3 of the printed record of appeal, the Appellant said inter alia before the Upper Area Court Bauchi thus “I Sarkin Kudu Muhammadu Maidawa is hereby claiming a house belonging to my father which the Respondent is now in possession and I do not know how he, got it …”
- The learned Khadis, Sharia Court of Appeal Bauchi misdirected themselves in law and fact when they reversed the decision of the Upper Area Court Bauchi without adverting their minds to the issue of loan and or gift raised during the trial as well as weight of evidence.
Particular of Misdirection
i. Under Islamic Law as stated in Kifayatil Dalibi Vol. ii pp. 294 – 295 it is provided that the onus of proof is on he who asserts.
ii. The Appellant brought witnesses that established that the house was loaned out to the respondent but no such corresponding witnesses were brought by the Respondent to establish the fact of gift.
iii. There was no acquiescence on the part of the Appellant for this period or years as he alleged that the house was loaned out to the Respondent.
iv. It is provided in Bhaja Sharh of Tuhufatul Hukkam Vol. 11 pp. 252 that, a person can loose his ownership to a piece of land or house if someone entered it unchallenged by the owner and that he was not sick, not a child, has not travelled out, no relationship of blood or marriage and has not sued without success his interest will lapse after 40 years if these reasons exist.
v. The issue of 40 years acquiescence is not applicable to the case at hand as the issue involved loan and or gift.
The parties in this appeal acting pursuant to the rules of this Court exchanged briefs of argument. The Appellant in his brief deemed filed on 17/11/94 has submitted therein two issues thus:
Issues for Determination
- Whether the upper Area Court Bauchi can exercise original jurisdiction over disputes involving land situate in an Urban Area.
- Whether the Sharia Court of appeal Bauchi can exercise appellate jurisdiction over an appeal, which is ab-initio null and void.
The Respondent, on the other hand, in their Brief of argument deemed filed on 3/3/97, also submitted equally two issues as arising in this appeal, to wit
(1) Whether the present case is not governed by Islamic Law considering the claim of the appellant in the court or first instance.
(2) Whether the Sharia Court of Appeal was right when it found for the respondent and that the appellant lost ownership of the house in dispute because or the period of prescription.
It is note worthy that both parties in their respective brief formulated an issue which concerns the jurisdiction of the Court below. Each party termed that issue as issue one and argued same accordingly. I will therefore adopt the Appellants issue number one for my consideration of the appeal as follows:
Issue 1
The main thrust of the Appellant’s complaint on this issue is that the claim of the Plaintiff at the trial Court has nothing to do with Islamic personal law as provided by Section 242(2) (a – c) of the 1979 Constitution of the Federal Republic of Nigeria as amended then. Now Section 262(2) of the 1999 Constitution provides and virtually reproduces the content of the repealed Section 242(2) of the 1979 Constitution supra.
A. careful scrutiny of the claim of the appellants will reveal that it does not come under the provisions of Section 262 of the 1999 Constitution.
It reads thus:
“I Sarkin Kudu Mohammadu Maidawa is hereby claiming a house belonging to my father which the respondent is now in possession and I do not know how he got it. However, he is saying that it was Mallam Yakubu who gave him. I am therefore, urging this Upper Area Court to return my fathers house to me. Both Mallam Yakubu and Sarkin Dawaki cannot inherit my father’s property.”
Considering the above claim, can we say with all sincerity that it raised any question of inheritance and or succession which was addressed by the provisions of Section 262(2) of the 1991 Constitution supra?
Learned Counsel for the Appellant on page 3 of their brief submitted that “there is nothing within the statement which borders clearly on Islamic personal law, the issue purely was that of ownership of land withheld by the Respondent notwithstanding. The issue of gift raised by the Respondent notwithstanding. The issue of loan raised by the Appellant as well will not confer jurisdiction on the Sharia Court of Appeal.
The Respondent, argued that the matter concerns the issue of succession under Islamic personal law and relied on the same section 242(2) of the 1979 Constitution supra.
I must say at the onset that, the issue of jurisdiction whenever raised will force the Court to jettison everything, until that question is decisively and timeously resolved one way or the other. In fact, whenever the issue of jurisdiction is raised, it has to be taken in limine. This is because of the fundamental nature of it. The law is that, since the issue of jurisdiction is fundamental to the hearing of an action, it is relevant to determine at the first opportunity whether there is jurisdiction because it will be manifestly absurd to suggest that a Court was bound to proceed where it appeared that the whole suit could be decided upon the pleadings without any evidence being called is, of course a rudimentary principle that where a court has no jurisdiction, it is futile exercise going into the issue as the exercise of jurisdiction where there is none will result in nullity.
I refer to the Supreme Courts decision in the case of Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 500 at 542; and Timitimi v. Amabebe 14 WACA 374.
The Appellant insisted that the issue of jurisdiction being fundamental once succeeds, has the effect of rendering an entire proceedings a nullity. Nothing is further than the truth. He relied on the following cases.
- Osadebay v. Attorney-General Bendel State (1991) NWLR (Pt.169) p. 525, 532 – 548.
- F.C.M.B. v. Abiola & Sons Limited (1991) 1 NWLR (Pt.165) 14 at 16 – 19.
3, Isidahomen v. Governor of Bendel State (1986) 5 NWLR (Pt. 39) 58/59 – 60.
- Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198/99
I have carefully read through the hosts of the above interesting authorities cited by the Appellants Counsel and, I am of the firm view that they were not quoted out of con, they are really apposite.
The claim of the Appellant before the upper Area Court may be within the jurisdiction of that Court but certainly, it has nothing to do with the Islamic personal law. That being the case, the Sharia Court of Appeal cannot have jurisdiction to entertain the appeal. That is the law at the moment. We are bound to obey and bow to the dictate or the provisions of the Constitution. The position could be uncomfortable as it has the capacity of slowing down the much-desired development of Islamic law in this country. The Islamic land law is in a way crippled. You will find that the parties are Moslems Islamic law is the lex citus in the area and the subject matter may concern Islamic law however, since it is not a matter that comes under Islamic personal law then, the Sharia Court of Appeal will he robed and stripped off the opportunity of developing that particular aspect of the law. There will be an occasion, in future if care is not taken, when the learned Khadis or the various Sharia Courts of Appeal will be rendered unnecessarily bootless. Their wealth of learning and deep knowledge of Sharia after prolonged training will be a wastage.
In the result, I hold that the claim of the Appellant at the trial Court does not come under the provisions of both Section 242(2) of the 1979 Constitution and Section 263(2) of the 1999 Constitution of the Federal Republic of Nigeria.
This is because, the claim is not related to Islamic personal law. That being the case Sharia Court of Appeal Bauchi State can not have the jurisdiction to entertain the appeal from the trial Court. I refer to the following cases.
Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387
Usman v. Kareem (1995) 2 NWLR (Pt.379) 537
Jiji v. Abare (1999) 1 NWLR (Pt. 586) 243/251
Garba v. Dogon Yaro (1991) 1 NWLR (Pt. 165) 102
Abuja v. Bizi (1988) 5 NWLR (Pt. 119) 120
The appeal succeeds and the decision of the Court below cannot stand. It is a nullity. It is hereby set aside. The appeal is therefore allowed. There is no need for this Court to go into the second issue. Since the appeal is allowed on the issue of jurisdiction same is remitted back to the State High Court in its appellate jurisdiction. Parties to bear their own costs.
Appeal is allowed.
Other Citations: (2000)LCN/0698(CA)
