3PLR – ASKI V. ALU

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ASKI

V.

ALU

COURT OF APPEAL

KADUNA DIVISION

(1999)

3PLR/1999/25  (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

MURITALA AREMU OKUNOLA, JCA

MUHAMMAD S. MUNTAKA-COOMASSIE, JCA

IBRAHIM TANKO MUHAMMED, JCA

REPRESENTATION

Garba shehu Esq. – for the Appellant

1. A. Akintoye Esq. – for the Respondent

MAIN ISSUES

PRACTICE AND PROCEDURE – JURISDICTION- Sharia court of Appeal has no jurisdiction to determine any issue involving title to land. It does however have jurisdiction to determine any question of Islamic law regarding a wakf, will or succession where the endower, donor, testator or deceased person is a Moslem.

2. Appellate courts are not restricted to the ground or issues raised by the parties before them. The court can without being called upon to do so, consider the relevant law and apply it. At the appellate stage the appellate court can rehear or retry the case in whole or in part.

Judgement of the court Delivered by Okunola JCA

This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal holden at Birnin Kebbi delivered on 24/8/94. The facts of this case briefly put were as follows:-

The respondent herein as plaintiff before Upper Area Court Jega in suit No. UAC/JG/CV/F1/29/94 had sued the appellant as defendant claiming a farm which he alleged was given on loan by his father to the father of the appellant and when their fathers died the appellant pleaded with the respondent for the continuation of the loan.

The respondent alleged that he had agreed to the request of the appellant on the condition that the appellant like his late father who continue to given certain proportion of what was harvested from the farm and that this should be made to the respondent through his sister Hadiza. He was suing to repossess the farm because after the death of Hadiza the appellant breached the condition. The appellant denied the claim of the respondent and asserted that the farm in question was a gist by the respondent’s father to his own father. He (appellant) alleged that after the death of the respondent’s father, the respondent revoked the gift and sold the farm at the rate of N7 to the appellant’s father.

The respondent in support of his claim called the following witnesses:-

1. Ahmadu yahaya (P.W.1)
2. Aliyu Bawa (P.W.2)
3. Isa Kure (P.W.3)
4. Labbo yahaya (P.W.4)

The appellant on the other hand called 6 witnesses in support of his counter-claim. These were:-

1. Adbu Marafa (D.W.1)
2. Ibrahim Musa (D.W.2)
3. Garban Iyya (D.W.3)
4. Labbo Boge (D.W.4)
5. Alu Dogo (D.W.6)

The trial Upper Area Court Jega found 2 witnesses of the respondent, Aliyu Bawa and Labbo Yahaya credible while he found all the witnesses of the appellant as having been impeached. The court offered oath to the respondent to deny the allegation of sale and confirmed the farm to him. Dissatisfied with this judgment of the Upper Area court, the appellant appealed to the Sharia court of appeal Birnin Kebbi which, after going through the records and hearing from parties, found that contrary to what the Upper Area Court Jega had said, the appellant had only one credible witness and that was Aliyu Bawa. In the end, the Kebbi State Sharia Court of Appeal holden at Birnin-Kebbi offered complimentary oath to the appellant, affirmed the decision of the lower court (UAC Jega) and dismissed the appellant’s appeal.

Dissatisfied with this judgment of the Kebbi State Sharia Court of Appeal, the respondent appealed to this court on three grounds. From the three grounds of appeal filed by the respondent who is the appellant herein, 3 issues were formulated by the appellant for determination in this appeal, viz:-

“1.     Whether the trial Upper Area court Jega, and the Sharia Court of Appeal Birnin Kebbi were right in holding that `Hauzi’ prescription was inapplicable in the case.

2. Whether the trial Upper Area court Jega, and the Sharia Court of Appeal Birnin Kebbi were right in holding that the witnesses called by the defendant (appellant) were properly impeached.
3. Whether it was proper to offer complimentary oath to the plaintiff (respondent) as was done by the trial Upper Area Court and affirmed by the Sharia Court of Appeal in the circumstances of this case.”

The respondent’s counsel on behalf of the respondent also formulated three issues which though couched in a different language boil down to the issues formulated by the appellant herein. These are:-

“1.     Whether the respondent as against the appellant proved his claim before the trial court.

2. Whether, if the respondent has proved his claim before the trial court, such claim is not defeated by the long period of possession otherwise called `Hauzi’ And:
3. Whether oath taking was necessary in the circumstances of the case between the parties.”

Since both sets of issues are similar, I shall adopt the issues formulated by the appellant.

At the hearing of this appeal before us on 17/11/98 both counsel to the parties adopted and relied on their briefs filed herein. However, learned counsel to the appellant, Mr. Garba shehu, in his address urged the court to invoke its inherent jurisdiction as a Sharia appellate court to consider the issue of jurisdiction which he did not originally raise but which is relevant to the appeal. stressing that the court as a Sharia appellate court can raise any such matter germane to the determination of the appeal. Learned counsel submitted that the lower court by virtue of section 242 of the 1979 Constitution lacks jurisdiction to entertain the appeal since it is a matter relating to title to land and loan simpliciter. He urged the court to declare the proceedings at the Sharia Court of Appeal a nullity and order retrial at the appropriate court. He urged the court to allow the appeal on the ground of lack of jurisdiction.

Learned counsel to the respondent, Mr. H. A. Akintoye, by way of reply after adopting the respondent’s brief filed herein on 6/12/96 but deemed filed on 17/11/98 submitted before the court that on issue of jurisdiction he conceded with the submissions of the learned counsel to the appellant that the Sharia Court of appeal lacks jurisdiction to entertain this matter by virtue of section 242 of the Constitution Supra. He urged the court to allow the appeal and order rehearing of the appeal at the appropriate court.

I have considered the submissions of both learned counsel to the parties particularly on the issue of jurisdiction.

Since jurisdiction is the basis of adjudication. I will first of all address this issue of jurisdiction jointly raised and conceded to by both parties . As to whether this court has jurisdiction to consider this issue which was not raised in their briefs or contained in the grounds of appeal filed by the appellant. I will answer this in the affirmative.

This is because under Islamic law the role of the appellate courts is different from the role of such courts under the common law system. Thus, unlike the position under the common-law system the appellate courts is different from the role of such courts under the common law system. Thus, unlike the position under the common law system the appellate courts are not under Islamic law restricted to the grounds or issues raised by the parties before them. This position had been confirmed by the Sharia appellate bench of this court in Ahmadu Sidi v. Abdullahi Sha’aban 91992)4 NWLR (Pt.233) 113p.118 lines 2-5 for Uthman Mohammed, J.C.A. (as he then was) thus:

“Once a case is brought before a judge under the Islamic law procedure, the court is not restricted to the grounds of appeal (if any) filed before it. The judge can without being called upon to do so, consider the relevant law and apply it. At the appeal state, the appellate court can rehear or retry the case in whole or
in part.”

It is in the light of this authority that I shall now consider the issue of jurisdiction raised and addressed by both parties. The general law is that the claim of the plaintiff at the trial court determines the jurisdiction of the court.

In the instant case the plaintiff respondent is claiming ownership of a farmland which he alleged was given on loan by his father to the father of the defendant/appellant. From the above claim, it can be seen that the dispute in
this case relates to a declaration of title over the disputed farmland between the appellant and the respondent. At this juncture it is clear that the poser raised in this appeal is whether the Kebbi State Sharia court of appeal has jurisdiction over the appeal. This poser has come for determination and resolution in various decisions of this court to the effect that once the issue of appeal is title to land simpliciter, the jurisdiction of the Sharia Court of appeal is ousted. See: Isa v. Kardo (unreported) appeal No. CA/J/32/S/85 delivered on 16/10/85: Abuja v. Bizi (1989)5 NWLR (Pt.119)120 where this panel of the court of appeal on the same issue of jurisdiction of the Sharia court of appeal based on s.242 of the 1979 Constitution held at p.105 per Okunola J.C.A. as follows:-

“By virtue of s.242(2) of the 1979 Constitution Sharia court of Appeal has jurisdiction to determine any question of Islamic law regarding a wakf, will or succession where the endower, donor, testator or deceased person is a
Moslem. Thus, Sharia court of Appeal has no jurisdiction to determine any issue involving title to land.”

The above position of the court of appeal on jurisdiction of the Sharia Court of Appeal under the 1979 constitution was affirmed by the Supreme court in their various judgment in recent times. Thus in M. Ahmadu Usman v. M. sisi Umaru (1992) 7 NWLR (Pt.254) 377; (1992) 7 SCNJ (Pt.11) 388 the court in its leading judgment per Ogundare, J.S.C. at page 398, 400 held thus:-

“Turning now to the case on hand, I have stated earlier in this judgment the two grounds upon which the defendant sought to impeach the judgment of the Upper Area Court, that is, weight of evidence and bias (see pages 23 and 24 of the record).

These two grounds can hardly be said to involve any questions regarding customary law. The Customary court of appeal will, therefore, in my respectful view, have no jurisdiction to entertain that appeal. And as the court of
appeal (Wali, J.C.A.) held in CA/J/32/85, and quite rightly in my view, that the Sharia Court of Appeal had no jurisdiction to entertain the appeal as questions regarding Islamic personal law are not involved, it follows that it is the High court of Plateau State sitting in its appellate jurisdiction that has jurisdiction over the appeal and the Court of appeal was right in CA/J/32/85 to have transferred the appeal to that court for adjudication. The High court was wrong to decline jurisdiction and the Court of appeal in CA/J/28/87 per Jacks, J.C.A. was equally
wrong to remit the appeal to the Customary court of Appeal for adjudication. I will answer questions (1) & (3) in the affirmative.”

This was the majority view of the Supreme court on the jurisdiction of the Sharia Court of appeal shortly after the commencement of Decree No. 107 of 1993 which deleted the word “personal’ after the word “Islamic” wherever it occurs in sections 217, 22391), 226(a), 241(3) and 242 of the 1979 Constitution does not confer additional jurisdiction on the Sharia court of appeal (apart from the Islamic personal law) the supreme Court in a recent judgment in alhaji saidu Usman (substituted by alhaji isa Alabi Usman) v. alhaji salihu Kareem (1995) 2 NWLR (Pt.379) 537 p. 541 held on jurisdiction of Sharia Court of Appeal as follows:-

“where a case involves Islamic personal law as in this case which is about a gift between Muslims, an appeal from the decision of the area Court on the matter lies to the Sharia Court of Appeal of that state `The cause of action in this appeal involves a gift and the donors are Moslems. Section 242(2) © of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree No.26 of 1986 vests the Sharia court of appeal with jurisdiction to exercise appellate and supervisory jurisdiction in civil proceedings involving question of Islamic law which the court is competent to decide in accordance with the provisions of sub-section (2) of that section sub-section (2) © of section 242 provides:

“(2)   For the purposes of sub-section 91) of this section the Sharia Court of appeal shall be competent to decide-

(a)

(b)

(c)     any question of Islamic law regarding wakf, gift, will or succession where the endower, donor, testator or deceased person is a Moslem.

From the foregoing authorities, since the 1979 Constitution is still in vogue, it is evident that the issue for determination in this appeal being on matter of ownership to a disputed farmland simpliciter which was not mentioned in, and does not fall within the ambit of s.242 (2) of the 1979 Constitution to confer jurisdiction on the Sharia Court of appeal. I therefore hold that the Sharia Court of appeal lacks jurisdiction to entertain this appeal since the claim of plaintiff/appellant at the lowest trial court was an issue involving ownership of a disputed farmland simpliciter and is in no way related to wakf, will or succession of a deceased Moslem. This issue disposes of all other issues in this appeal.

In the result this appeal succeeds and it is allowed on the issue of jurisdiction. Consequently, the decision of Kebbi State Sharia Court of appeal delivered in appeal No. SCA/JG/56/94 on 24/8/94 is a nullity for lack of jurisdiction. It is for determination by the State High Court in its appellate jurisdiction in the area of jurisdiction of this case. Parties to bear own costs.

Muntaka-Coomassie and Muhammad JJCA both agreed with the lead judgement.

{Nigerian Cases Referred to}

Abuja v. Bizi (1989)5 NWLR (Pt.119)120

Garba v. Dogon Yaro (1991) 1 NWLR (Pt.165) 102

Isa v. Dardo (Unreported) appeal No. CA/J/32/S/85 delivered on 16/10/85

Sidi v. Sha’aban (1992)4 NWLR (Pt.233)133

Usman v. Kareem (1995)2 NWLR (Pt.379)537

Usman v. Umaru (1992)7 NWLR (Pt.254)377