3PLR – MORIKI V. ADAMU
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ALHAJI GARBA SHUAIBU MORIKI
V.
USMAN ADAMU
IN THE COURT OF APPEAL
[KADUNA DIVISION]
3PLR/2001/223 (CA)
OTHER CITATIONS
15 NWLR (Pt. 737) 666
BEFORE THEIR LORDSHIPS:
ISA AYO SALAMI, JCA(Presided)
RABIU DANLAMI MUHAMMAD, JCA
MAHMUD MOHAMMED, JCA(Delivered the leading judgment)
REPRESENTATION
Appellant absent and not represented.
N. Ibrahim for the respondent.
EDITORS
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
MAIN ISSUES
APPEAL – Findings of fact by trial court – attitude of appellate court to same.
APPEAL –Issue for determination – meaning of – need for same to arise from grounds of appeal.
COURT –Hypothetical and academic questions – duty on court not to entertain same.
JURISDICTION – Issue of jurisdiction – duty of court to entertain same when properly raised at any stage of adjudication.
JURISDICTION – Meaning of – relevance of plaintiff’s claim in determining jurisdiction.
JURISDICTION –State High Court – whether has jurisdiction in a suit concerning declaration of title to land.
LAND LAW – Declaration of title to land – whether dismissal of plaintiff’s claim confer title on the defendant without a successful counter claim.
MAIN JUDGMENT
MAHMUD MOHAMMED, JCA (Delivered the following judgment):
This appeal is against the decision of Saka Yusuf J. of the Kano State High Court of Justice sitting at Kano and delivered on 12/10/98. The appellant as plaintiff by a writ of summons dated 24/9/96 filed an action at the Kano High Court and claimed against the respondent as defendant as follows in the amended statement of claim:-
“The plaintiff claim against the defendant an Islamiyya School situated at Kurna Asabe Babban Layi Kano which the plaintiff built on his parcel of land about 5 years ago and donated same for the course of propagating Islam. The defendant was employed as a Teacher and Headmaster of the said school which he refused to give account of and no student has ever passed out from the said school. He was also dismissed from the said school but refused to vacate the school and is now causing confusion in the said school.
Where of the plaintiff claims the followings from the defendant:-
(a) An order of this honourable court giving the plaintiff in this suit the ownership of the said school.
(b) That the possession and ownership of the school be returned back to the original owner.
(c) A declaratory order dismissing the defendant from the said school situated at Kurna Babban Layi, Kano.
(d) An order of perpetual injunction restraining the defendant his agents, privies or whomsoever from trespassing in the said premises of the school situated at Kurna Asabe Babban Layi, Kano.
(e) An order of this honourable court removing the defendant from management of the said school.
(f) An order of perpetual injunction restraining the defendant from parading himself as a trustee of the said school and a teacher of the same.
(g) An order of this court ordering the defendant to return all properties and documents relating to the said school in the possession of the defendant.”
After the exchange of pleadings between the parties which was concluded on 27/4/98, the case was fixed for hearing on 23/6/98. When the case came up for hearing before Saka Yusuf J. on that date at the trial court, the plaintiff testified in support of his own claims but did not call any other witness. The defendant on the other hand testified in his own defence and also called two other witnesses who testified in support of his case. One of the witnesses called by the defendant is an expert on Islamic Law. At the end of the hearing, the learned trial Judge after considering the evidence on record in his judgment delivered on 12/10/98, dismissed the plaintiff’s claims in their entirety. Therefore aggrieved by that judgment, the plaintiff has appealed to this court by a notice of appeal containing 4 grounds of appeal from which the following 3 issues were distilled in the plaintiff now appellant’s brief of argument for the determination of the appeal. The issues are:-
“1. Whether the trial High Court has the requisite competence to hear and determine an action under Islamic Personal Law regarding a Wakf, gift when both parties are moslems having regard to the provisions of section 242(2)(c) of the 1979 Constitution of Nigeria, section 11(c) Sharia Court of Appeal Law and section 15 of the Kano State High Court Law Laws of Kano State Cap 134 and 57 respectively of 1983.
- Whether section 34(1) of the High Court Law Laws of Kano State Cap 57 of 1983 confers jurisdiction on the High Court to apply Islamic Law.
- Whether if the trial court has properly appraised the evidence before it, it will still have come to the same decision and whether this failure has occasioned a miscarriage of justice.”
These 3 issues as formulated in the appellant’s brief of argument were duly adopted in the respondent’s brief of argument. The dispute between the parties having regard to the pleadings and the evidence on record of the lower court is over the ownership and possession of an Islamiyya school consisting of four classrooms, an office and mosque built by the appellant on a piece of land owned by him at Kurna Asabe Babban Layi Kano. On 25/1/92, the appellant executed a document which was received in evidence by the trial court as exhibit ‘D’ in which 3 of the appellant’s sons signed as witnesses donating the property in dispute to the Muslim Community at Gobirawa for ever, in the name of Allah for the propagation of Islam. Later, when dispute arose between the appellant and the respondent over the management of the school, and when the appellant attempt to remove the respondent failed, the appellant went to the lower court and filed his action claiming for various declaratory and injunctive reliefs against the respondent, the refusal of which by the lower court gave rise to this appeal by the appellant. The first issue for determination as framed in the appellant’s brief of argument earlier quoted in this judgment reads:-
“Whether the trial High Court has the requisite competence to hear and determine an action under Islamic Personal Law regarding a Wakf, gift when both parties are moslems having regard to the provision of section 242(2)(C) of the 1979 Constitution of Nigeria, section 11(C) Sharia Court of Appeal Law and section 15 of the Kano State High Court Law, Laws of Kano State Cap 134 and 57 respectively of 1983.”
The answer to the above issue as posed is definitely in the negative being a hypothetical or academic question. This is because there is no doubt whatever that the trial court being the High Court of Kano State indeed has no requisite competence to hear and determine:-
“An action under Islamic Personal Law regarding Wakf, gift when both parties are Moslems having regard to the provisions of section 242(2) (C) of the 1979 Constitution of Nigeria, section 11(C) Sharia Court of Appeal Law and section 15 of the Kano State High Court Law Laws of Kano State Cap 134 and 57 respectively of 1993.”
In other the issue is merely stating the obvious position with regard to the jurisdiction of the Sharia Court of Appeal under section 242(2) (C) of the 1979 Constitution. On the face of the issue which relates to any action under Islamic Personal Law, it is quite plain that the issue has no relation whatsoever with the facts of the present case. The Supreme Court and this court have held in several cases repeatedly that it is not part of the functions of a court to entertain and decide hypothetical and academic questions which do not arise from the facts of the case or grounds of appeal as is the position in the present case. See Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34)162 at 179, Union Bank of Nigeria Ltd. v. Edioseri (1988) 2 NWLR (Pt. 74) 93 at 105 and 106-107 and Simon Dyokshak Yil v. Ishaku Ngumar & 1 or (1998) 8 NWLR (Pt. 560) 125 at 140.
Furthermore, an issue must arise from one or more of the grounds of appeal filed. Any issue which does not comply with this requirement must be struck out or ignored. See Osinupebi v. Saibu (1982) 7 SC 104 at 110 –111. It must be also emphasized in this respect that an issue for the purposes of an appeal is that which, if decided in favour of a party will result in a verdict in his favour. In other words, an issue is a statement of facts with their legal consequences, not statements of abstract principles of law. Such facts in an issue must be tailored to the facts of the case. See Standard Consolidated Dredging & Construction Company & Anor v. Katonecrest Nigera Ltd. (1986) 5 NWLR (Pt. 44) 791 799. Therefore it is quite clear having regard to the foregoing reasons, that the first issue raised by the appellant in his brief of argument, is not an issue at all arising for determination in this appeal and accordingly I shall ignore it in my judgment.
However, having regard to the appellants ground one of the grounds of appeal, it is not at all in doubt that the appellant is plainly challenging the competence or jurisdiction of the trial court to entertain the action filed by him in that court. Ground one of the grounds of appeal filed by the appellant states:-
“The learned trial Judge erred in law when he entertained the suit in that he has no jurisdiction to try the same by reason of the fact that the matter involves Islamic Personal Law and this is a violation of the provision of section 242(2) (C) of the 1979 Constitution of Nigeria and this error has vitiated the whole trial.”
From the above quoted ground of appeal, the fact that the appellant is challenging the competence or jurisdiction of the trial court in entertaining the action filed by him in that court against the respondent, is not at all in doubt. Thus, having been raised properly by a competent ground of appeal in this court, having regard to the importance of the issue of jurisdiction which can be raised at any stage of adjudication in our court, the very fact that it has been properly raised in this appeal, I can not afford to ignore it simply because the learned counsel to the appellant has inelegantly framed an issue No.1 now ignored, out of the competent ground of appeal attacking the jurisdiction of the trial court. Actually the only simply issue arising for determination from the appellant’s ground one of the grounds of appeal is whether the trial court has jurisdiction to hear the case filed by the appellant against the respondent which gave rise to this appeal.
On this issue, the appellant relying on section 242(2)(c) of the 1979 Constitution, has argued that the lower court being a High Court lacked jurisdiction to hear and determine the appellant’s case filed before it as it involved Islamic Personal Law regarding Wakf, gift when the parties are moslems. The case of Tukur v. Taraba State (1997) 6 SCNJ 81 at 108 was cited and relied upon in support of the argument that having regard to the subject matter of the appellant’s suit, the lower court has no jurisdiction to hear the suit as was also stated in the cases of Madukolu & Ors v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587 at 595 and Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508. It was further submitted for the appellant that the courts can only exercise the judicial powers vested in them by the constitution where the constitution has expressly and without ambiguity excluded the exercise of its jurisdiction or judicial powers, the exercise of such powers by the court will be unconstitutional as stated in Osadebay v. Attorney General, Bendel State (1991) 1 NWLR (Pt. 169) 525 at page 570. For this reason, it was finally submitted for the appellant that the lower court has no jurisdiction to entertain the matter which is exclusively within the jurisdiction of the Sharia Court of Appeal.
For the respondent however it was contended that the dispute between the parties being over landed property, even though the property is subject of Wakf as envisaged by section 242(2) (C) of the 1979 Constitution, the lower court has jurisdiction to hear and determine the dispute in exercise of its first instance jurisdiction. That as the claim of the appellant in his action was for declaration of title to the Islamiya School and the mosque, the claim of the appellant was within the jurisdiction of the trial court having regard to the case of Morakinyo v. Adesoyero (1995) NWLR (Pt. 409) 692 at 619. That for this reason, the argument of the appellant with regard to the alleged restriction placed on the High Court by section 15 of the High Court Law is misconceived.
Jurisdiction in the present circumstances means the power of a court or Judge to entertain an action. The law on the question of jurisdiction of court is indeed well settled that it is the claim of the plaintiff that determines the jurisdiction of the trial court. In other words, ordinarily, it is the claim of the plaintiff and not the defendant’s defence that would be looked into or examined to determine jurisdiction. See Adeyemi v. Opeyori (1976) 9-10 SC 31 at 49; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Opiti v. Ogbeiwi (1992) 4 NWLR (Pt. 234) 184; Anyah v. Iyayi (1993) 7 NWLR (Pt. 305) 290 and Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659 at 674. Where Igu JSC stated this position of the law as follows:-
“In the first place, it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same. See Ajaka Izenikwe & Ors v. Nnadozie (1952) 14 WACA 361 at 363 and Adeyemi v.Opeyori (supra) at p.51.”
It is indeed surprising, having regard to this state of the law, the appellant who voluntarily filed his action at the trial court seeking for the 7 distinct declaratory and injunctive reliefs earlier quoted in this judgment, has now turned round to challenge the jurisdiction of the same court without reference to the reliefs claimed by him in the action. Rather, the appellant is now relying on the defence put up by the respondent as the defendant in action, quite contrary to the position of the law to say that the lower court lacked jurisdiction to entertain his action. I am afraid the law does not allow the appellant the right to do so as none of the 7 reliefs claimed by the appellant in his amended statement of claim, had anything to do with a Wakf gift under Islamic Personal Law that could be regarded as coming within the exclusive jurisdiction of the Sharia Court of Appeal by virtue of section 242(2) (C) of the 1979 Constitution of the Federal Republic of Nigeria. In any case the appellant must have been fully aware through his learned counsel, that the Sharia Court of Appeal has no original jurisdiction and that must have been why he headed to the High Court for the reliefs he sought in his action against the respondent. On the whole therefore, on the claims submitted to the lower court in the appellants action against the respondent for determination, I hold that the lower court is quite competent and has the jurisdiction to entertain all the claims.
Having regard to the conclusion I arrived at in the resolution of the first issue for determination in this appeal, I do not regard it as necessary to wake into the minor issue on jurisdiction again as to whether section 34(1) of the High Court Law of Kano State confers jurisdiction on the High Court to apply Islamic Law as the issue not having been related to the present case, is purely academic. In any case, in the present case the dispute between the parties being over title and possession of piece of land and the structures thereon, the subject matter of the suit is plainly out of the jurisdiction of the Sharia Court of Appeal as prescribed under section 242 of the 1979 Constitution as stated in the recent decision of the Supreme Court in the case of Alhaja Usman Magaji v. Maidorowa Matari vol.2 (2000) 1 WRN 75 at 82; (2000) 8 NWLR (Pt. 670) 722 at 735.
The last issue for determination is whether if the trial court has properly appraised the evidence before it, it will still have come to the same decision and whether this failure has occasioned a miscarriage of justice. Learned counsel to the appellant has submitted on this issue that the learned trial Judge based his judgment on the original statement of claim of the appellant which had been amended. That if he had based his judgment on the amended statement of claim the learned trial Judge would have been able to properly appraise the evidence and come to the correct decision. That the finding of the lower court that it is not clear if the defendant is also a member of the management committee of the school is not supported by evidence as exhibit ‘E’ shows that the management of the school had been transferred to Jama’ atu Izalatul Bid’ah with headquarters at Jos. That exhibit ‘E’ therefore supports the oral evidence of the appellant that the management of the school had been transferred to Jos and that contents of exhibit ‘E’ cannot be varied by oral evidence of DW2 as found by the trial Judge. That the failure of the lower court to find on the evidence before it that there had been a breach of the terms of the trust in the management of the school had occasioned a miscarriage of justice. On further submission it was argued that the lower court was wrong in failing to consider the fact that respondents are preventing people who are not their members to attend the school or pray in the mosque, and that this should have been a ground for the violation of the terms of the trust to warrant its revocation since the terms of the donation in exhibit ‘D’ are vague as found by the trial Judge.
It was the contention of the respondent on this issue that the trial court had properly appraised the evidence before it and that no failure of justice was occasioned by its decision based on the evidence.
The attitude of appellate court to finding of facts by the trial court is indeed trite. Where a trial court which saw and heard the witnesses has come to specific findings of facts on the evidence and issues before it, an appellate court which has no similar opportunity should refrain from coming to different findings unless it can show that the conclusion could not follow from the evidence before it. Furthermore, an appellate court will not substitute its own findings for those of the trial court, nor will appellate court interfere with evaluation of evidence by trial court except such findings are perverse. See Odofin v. Ayoola (1984) 11 SC 72; Ebba v. Ogodo (2000) 17 WRN 95; (1984) 1 SCNLR 372; Ajayi v. Texaco (1987) 3 NWLR (Pt.62) 577; Mogaji v. Odofin (1978) 4 SC 91; Iyaro v. State (1988) 1 NWLR (Pt. 69) 256 and Bala James Ngilliari v. National Insurance Corporation of Nigeria (1998) 8 NWLR (Pt. 560) 1 at 20.
It is also the law that in a claim for a declaration of title as is the position in the present case, the dismissal of the plaintiff’s claim does not, without a successful counter claim, confer title on the defendant. This is because such a judgment decrees no title to the defendant who has not sought the declaration see Kodilinye v. Odu (1935) 2 WACA 336 and Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643. In the instant case, the claim of the appellant in this issue that the lower court had failed to properly appraise the evidence before it and that such failure had occasioned a failure of justice has not been substantiated at all by the appellant. The findings of the lower court were based on the evidence before it particularly the terms and contents of the grant exhibit ‘D’ duly authenticated by the appellant’s own 3 sons. The dismissal of the appellant’s claims by the lower court was therefore perfectly in order having woefully failed to prove any of his specific claims which do not include any declaration on the terms of any trust having been violated to warrant setting it aside.
In the result, this appeal has failed and the same is hereby dismissed. The decision of the lower court of 12/10/98 dismissing the appellant’s claim is hereby affirmed.
I am not making any order on costs.
ISA AYO SALAMI JCA: I read, in draft, the judgment just delivered by my learned brother, Mahmud Mohammed, J.C.A and am entirely in agreement with the reasoning contained therein and the conclusion arrived thereat. I have nothing further to urge other than to adopt his reasoning and conclusion as mine and for the same reasoning I, too, hold that the appeal fails and is dismissed. I also affirm the decision of Saka Yusuf, J. and endorse the order as to costs proposed in the lead judgment of my learned brother, Mahmud Mohammed, J.C.A.
In parenthesis, one cannot help but wonder, even though it is trite that neither the appellant nor the parties can consent confer jurisdiction on the trial court, at the array of stern and strenuous onslaught ranged, in the appellant’s brief, against, the jurisdiction and competence of the trial court, to entertain the action, considering the fact that appellant voluntarily and with his both eyes wide open approached the same court for remedy. His reaction if he had found favour with the trial court is better imagined than said.
RABIU DANLAMI MUHAMMAD JCA: I have read before now, the judgment of my Lord Mahmud Mohammed JCA just delivered. His lordship has admirably stated the facts and thoroughly dealt with all the issue canvassed in this appeal. I entirely agree with his reasoning and conclusion. The appeal has no merit and is dismissed. The judgment of the court below is affirmed. I make no order as to costs.
Cases referred to in the judgment
Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643.
Adeyemi v. Opeyori (1976) 9-10 SC 31.
Ajayi v. Texaco (1987) 3 NWLR (Pt.62) 577.
Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659.
Anyah v. Iyayi (1993) 7 NWLR (Pt. 305) 290.
Ebba v. Ogodo (2000) 17 WRN 95; (1984) 1 SCNLR 372.
Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34)162.
Iyaro v. State (1988) 1 NWLR (Pt. 69) 256.
Izenikwe v. Nnadozie (1952) 14 WACA 361.
Kodilinye v. Odu (1935) 2 WACA 336.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587.
Magaji v.Matari (2000) 1 vol.2 WRN 75.
Mogaji v. Odofin (1978) 4 SC 91;
Morakinyo v. Adesoyero (1995) 7 NWLR (Pt. 409) 692.
Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539.
Ngilliari v. National Insurance Corporation of Nigeria (1998) 8 NWLR (Pt. 560) 1.
Odofin v. Ayoola (1984) 11 SC 72.
Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.
Opiti v. Ogbeiwi (1992) 4 NWLR (Pt. 234) 184.
Osadebay v. Attorney General, Bendel State (1991) 1 NWLR (Pt. 169) 525.
Osinupebi v. Saibu (1982) 7 SC 104.
S.C.D.C.C. Ltd v. Katonecrest Nigera Ltd. (1986) 5 NWLR (Pt. 44) 791.
Tukur v. Taraba State (1997) 6 SCNJ 81.
Union Bank of Nigeria Ltd. v. Edionseri (1988) 2 NWLR (Pt. 74) 93.
Yil v. Ngumar (1998) 8 NWLR (Pt. 560) 125.
Statutes referred to in the judgment
Constitution of the Federal Republic of Nigeria 1979, s.242(2)(c).
Sharia Court of Appeal Law, Laws of Kano State, s. 11(c).
High Court Law, Laws of Kano State Cap 57 of 1983; Ss .15 34(1).
