3PLR – KARARIN ALELU A. FARUQ V SANI MAI ALLON KARFE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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KARARIN ALELU A. FARUQ

V

SANI MAI ALLON KARFE

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 2ND DAY OF MARCH, 2015

CA/S/66S/2013

LN-e-LR/2015/79 (CA)

 

 

        OTHER CITATIONS

 (2015) LPELR-24450(CA)

BEFORE THEIR LORDSHIPS

PAUL ADAMU GALINJE, JCA

TUNDE OYEBANJI AWOTOYE, JCA

MUHAMMED L. SHUAIBU, JCA

 

BETWEEN

KARARIN ALELU A. FARUQ – Appellant(s)

AND

  1. SANI MAI ALLON KARFE – Respondent(s)

 

REPRESENTATION

Sulaiman Usman Esq. with Ibrahim Ahmad Esq.  – For Appellant

AND

– For Respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW – SHARIA COURT OF APPEAL:- Jurisdiction of the Sharia Court of Appeal – Section 227 of the 1999 constitution  – Whether Land disputes cannot be entertained by Sharia Court of Appeal except where it involves any question of Islamic personal law regarding a Wakf, gift, will or succession or where the endower, donor testator or deceased person is a Muslim

RELIGION/CUSTOM AND LAW – SHARIA LAW: Ownership of land – interest in land – Matrimonial line of inheritance – recognition thereof – constitution – jurisdiction of the Sharia Court of Appeal – whether Land disputes can for determination of Sharia Court of Appeal except where it involves any question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor testator or deceased person is a Muslim

REAL ESTATE/LAND LAW:- Ownership of land under Sharia law – Proof of – Matrimonial line of inheritance – Recognition thereof – Effect

CHILDREN AND WOMEN LAW:- Women and Religion/Custom – Women and Real Estate/Property – Sharia law – Defence of interest in land – Matrimonial line of inheritance – Whether recognised under Sharia/Islamic law

INTERPRETATION OF STATUTE – SECTION 277 OF THE 1999 CONSTITUTION:- Jurisdiction of the Sharia Court of Appeal

 

 

 

MAIN JUDGMENT

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment):

This is the Judgment in respect of the appeal lodged by the appellant against the judgment of the Sharia Court of Appeal Kebbi State sitting at Birnin Kebbi delivered on 22/1/2013.

 

The Upper Sharia Court Jega was the court of first instance in this matter. The plaintiff had instituted an action at the Upper Sharia Court claiming as follows:

“I, Alh. Sani Mai Allon Karfe is suing kararin Alelu, Alh. Faruku because our district area which we Inhertted from our parents, Bawa Waziri. Now, the Kararin Alelu Alh. Faruk claimed that he owed this district area. Also 12 Kararin Alelu ruled and each of them left this issue to us. But now during his reign he claimed that the area belongs to him. Our grandmother Marliyya is the daughter of Sarkin Kabin Illo. This Marliyya is the mother of Bawa Waziri and the later is my mother. When Karari Modi divided farms to his younger sister, he gave towns to the males. As such Marliyya been the eldest was given the district area of Muazu and Marake area. This district area has been under the title of the descendants of Marliyya for the past 150 years. We have been empowered of this area for all this while. Now, the present “Karari” claimed that since he was appointed as the “Karari”, then the district area is under his jurisdiction.
As such I am suing him wanting the court to warn him to leave our district area (sic).”

 

After hearing the parties the Upper Sharia Court Jega gave judgment as follows:
“I, Hon. Muh’d sani Randall judge of Upper Sharia Court Jega based on the foregoing deliberation with the parties, and the testimonies of the 4 credible witnesses. Based on the consideration of the provisions of Sharia Law, as this court has affirmed this gift as stated in the court finding. Based on these grounds and authorities stated supra as a king or a village head can give a person a land within his town and the person can take care/possession of it. Under Islamic law it is refers to as “Ikida1”. Therefore I decided this case by confirming to the family of Bawa Waziri the district area given to as gift by Kararin Alelu. Modi to their father. I relied more on the authority from the Book of MINHAJUL – MUSLIM page 332 as follows:

Therefore based on all the foregoing, I decided this case by confirming these 2 district areas to the family of Bawa Waziri (sic). They are:

  1. Marake District Area

Length -East to West -4000fts
South to North – 5100fts
East share boundary with Badariya town, West with Atiku, South with Daba’u district and North with Jandutsi road

  1. Muazu District Area

East to West – 4553 fts
South to North – 4500 fts
East share boundary with Muazu district, west with Fagada Bawa, south with path to Jandutsi and north with Fagada Babba.
I confirmed these 2 districts to the family of Bawa Waziri as from today 15/3/2012″

 

The defendant at the Court of first instance, dissatisfied with the decision of the court later appealed to the Sharia Court of Appeal Kebbi State holden at Birnin Kebbi.

 

His appeal was not allowed as the lower court affirmed the decision of the Upper Sharia Court Jega. Hence this appeal.

 

The appellant, on 12/2/2013 filed Notice of Appeal containing 4 grounds of appeal. The grounds of appeal (Shorn of the particulars) read thus:

“Ground 1
The judgment is against the weight of evidence

Ground 2
The Sharia Court of Appeal, Birnin Kebbi lacks jurisdiction to entertain the appeal.

Ground 3
The Lower Court erred in law and thereby occasion miscarriage of justice in entering judgment for Respondent against the weight of evidence adduced before the Upper Sharia Court.

Ground 4
The Khadis of the Sharia Court of Appeal, Kebbi State erred in law when they entertained and determined this appeal relating to title of farmland when it is not a dispute of inheritance of the farmland between the parties

Ground 5
The Khadis of the Sharia Court of Appeal, Kebbi State erred in law when they held that “based on the forgoing, we the decision of the Upper Sharia Court Jega, who (sic) has confirmed the disputed (sic) farm lands to the familied of Bawa Waziri” and hereby occasioned miscarriage of Justice.”

 

The record of appeal was later transmitted to this court on 24/4/2013.
The appellant’s brief of argument was filed on 24/5/13 but the respondent failed to file any brief in response. It therefore leaves only the appellant’s brief of argument to be considered.

 

In his brief learned appellant’s counsel, Sulaiman Usman, formulated two issues for determination to wit;

  1. Whether in all the circumstances of this case, Sharia Court of Appeal Birnin Kebbi has the jurisdictional competence to hear entertain and determine this case.
  2. Whether the Lower Court was right is (sic) assessing the evidence adduced at trial and affirming the decision of Upper Sharia Court Jega.

 

Learned counsel referred to the provision of s.277 of the 1999 constitution (as amended) and submitted that the jurisdiction of the lower court did not extend to matters relating to title to land. He cited GAMBO v. TUKUJI [1997] 10 NWLR (PT 526) 591 at 600 and some other cases. He urged the court to resolve the issue in favour of the appellant.

 

On issue 2 learned counsel submitted that the lower court failed to properly evaluate the evidence adduced before it. He submitted that the plaintiff did not discharge the onus cast upon him by law. He urged the court to resolve the issue in favour of the appellant.

 

I have carefully considered the submissions of learned counsel and the contents of the record of appeal.

 

There seems to be no doubt that the lower court knew the appeal before it was in respect of district farmland, hence on page 29 lines 21 -22 of the record of appeal it stated thus:

“This case is a dispute over the issue of a district farms (sic) between A. Sani Mai Allon Karfe and Karari Faruku.”

 

It is trite law in view of the provision of s.277 of the 1999 constitution and plethora of authorities that the lower court lacked jurisdiction to entertain the appeal.

 

For avoidance of doubt I shall quote the provision of s.277 of the 1999 constitution as amended.

“277.-(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the court is competent to decide in accordance with the provisions of subsection (2) of this section.

(2)     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 proceeding 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. ”
This constitutional provision has been subjected to judicial interpretation by this court in several cases. See TUMFAFI V. MERESNO (1993) 1NWLR (PT 269) 378, ABUJA V BIZI [1989] 5NWLR (PT 119) 120 and a lot of other cases.
In MAGAJI V MATARI [2000] 8NWLR (PT 670) 722 Mohammed JSC had this to say;

“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor testator or deceased person is a Muslim”

 

I resolve issue one in favour of the appellant. I do not see any need to resolve issue 2 having regard to the fact that the lower court lacked jurisdiction to hear the appeal.

 

This appeal in the circumstance succeeds. It is hereby remitted back to Kebbi High Court (Appeal Division) for hearing and determination.

PAUL A. GALINJE, J.C.A.:

I entirely agree.

 

 

MUHAMMED L. SHUAIBU, J.C.A.:

I had a preview of the judgment just delivered by my learned brother T. O. Awotoye JCA.

 

I completely agree with the reasons leading to the conclusion that the Lower Court lacked jurisdiction to entertain the subject matter of this appeal.

 

The appeal is meritorious and is according allowed.

 

I abide by the consequential orders.

 

 

 

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