DANKOLI V KATU

DANKOLI V KATU


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 12TH JULY, 2018


Suit No: CA/S/167S/2017

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

ALH. MUSA DANKOLI
(APPELLANT)

AND

MUHAMMADU MAIGARI KATU
(RESPONDENT)


PRONOUNCEMENT


A. JURISDICTION
1. Jurisdiction of the Sharia Court of Appeal – The provision of the law on matters the Sharia Court of Appeal can entertain
Whether the Sharia Court of Appeal has jurisdiction to entertain appeals in relation to declaration of title to land

In the instant case, claim as reproduced above (p. 7) did not relate to any question or issue of Islamic Personal Law but rather to competing claims of title to farmlands and a house.
The Supreme Court of Nigeria has aptly pronounced the scope of the jurisdiction of Sharia Court of Appeal in the case of Magaji V. Matari (2000) 8 NWLR Pt. 670 Page 723 at 727 thus:-

“The intention of the constitutional provision which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject-matters of Islamic Personal Law. The intention cannot be subverted by strained construction of the provision to give it an unintended meaning.”

The provision of Section 277 of the Constitution has clearly restricted the jurisdiction of the Sharia Court of Appeal to exercising appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law.

It is pertinent to appreciate the fundamental nature of jurisdiction. It requires no leave to be raised for the first time on appeal as the Appellant did in the instant case. There are no restrictions to the right of any party or even the Court suo motu to raise and argue an issue of jurisdiction due to its crucial nature. It may be raised even in the Supreme Court for the first time. It is an elementary principle of law that the jurisdiction of a Court is very fundamental to adjudication of the matter before it. It is so radical that it forms the foundation of adjudication. Thus, if a Court lacks jurisdiction, it lacks the necessary competence to entertain the claim before it. See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Usman Danfodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p. 305.

Where jurisdiction is lacking, no Court under any guise can confer adjudicative competence upon itself. See BOYI V. HASSAN (2001) 18 NWLR PT. 744 PG. 41 at 49. It is clear that, in the instant case, the dispute between the Appellant and the Respondent does not involve any issue of Islamic personal Law. The fact that the property in dispute is acquired or alleged to be sourced from inheritance does not inject an issue of inheritance in the dispute so as to confer jurisdiction to Sharia Court of Appeal. In order to qualify as dispute within the scope of Section 277 of the Constitution, the issue or issues involved therein must relate to application of Islamic personal Law. The instant case merely involves simple competing claims of ownership of three farmlands and a house unrelated to waqf, gift, will, succession or any claim to an estate of a deceased Muslim or property of a missing Muslim or person of unsound mind, etc and therefore does not fall within the scope of Section 277 (2) (a) – (e) of the Constitution.

In the case of Garba V. Dogon Yaro (1991) 1 NWLR (PT. 65) P.102 @ 111. This Court per OKUNOLA, J.C.A (of blessed memory) aptly stated the nature of a claim involving Islamic Personal law thus:-

“Before a dispute could become a question regarding the issue of succession in order to confer jurisdiction on Sharia Courts, it must make succession an issue. Thus, the instances in which issue or dispute could be made a subject of succession as envisaged by Section 242 (2) (c) of the 1979 Constitution now Section 277 (2) (c) of the 1999 Constitution (As Amended) includes the followings: viz –

(a) A dispute over the failure to distribute the estate after the death of the deceased.

(b) A dispute over the devolution of the estate between the heirs.

(c) A dispute over any heritable estate which any person withholds away from the heirs.

(d) A dispute over the right to make a particular property within the estate.

(e) A dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime.

(f) A dispute over payment of a debt made by the deceased in his life time from the estate he or she had left behind.

(g) A dispute over the exclusion of an heir from inheriting from the estate. And all such dispute which can be attributed to the estate succession.”

In the instant case, the dispute is completely bereft of any issue requiring the application of Islamic personal Law.
It is clear from the foregoing appraisal that the Court below did not have the required competence to hear the appeal in the Instant case. Its proceedings and judgment therefore amount to nullity resulting from incompetence. The defect is extrinsic to the adjudication and therefore hooks the whole exercise to a non- starting level. Per MUKHTAR, JCA. read in context

B. PRACTICE AND PROCEDURE
2. Issue of Jurisdiction – How the issue of jurisdiction can be raised at any stage of the proceedings
Whether the issue of jurisdiction can be raised for the first time at the appellate Court

Without much ado it is pertinent, as the learned counsel for the Appellant R. T. Mustapher, argued, that issue of jurisdiction is so fundamental to adjudication that it can be raised at any stage of the proceedings, even at the Supreme Court for the first time. See Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659.

Jurisdiction is a threshold issue that can be raised at any stage of the proceedings and even for the first time on appeal. See Oloriode v. Oyebi (1984) 5 S.C. 1, at pp. 28-33. Per MUKHTAR, JCA. read in context


LEAD JUDGMENT DELIVERED BY MUKHTAR, JCA


This is an Appeal against the Judgment of the Kebbi State Sharia Court of Appeal Birnin Kebbi, delivered on 9th November 2016 affirming the Respondent’s claims against the Appellant in respect of title to farmlands and a house.

The Appellant instituted this suit at the Upper Sharia Court, Jega claiming that the Respondent is in possession of some farms and a house belonging to his father that was entrusted to the father of the Respondent. The Respondent, however, counter claimed against the Appellant that he inherited same properties from his father.

The trial Upper Sharia Court Jega delivered its judgment in favour of the Respondent. The Appellant was disgruntled with that decision and therefore appealed to the Kebbi State Shari’a Court of Appeal where the decision of the trial Court was affirmed. The Appellant being dissatisfied further appealed to Court by filing a Notice of Appeal dated 2nd February 2017 predicated upon a lone ground as follows:

The learned Kadis of the Sharia Court of Appeal Birnin Kebbi erred in law when they assumed jurisdiction over a matter that did not involve Islamic personal law.

Particulars

a. The jurisdiction of the Sharia Court of appeal as donated by Section 277 of the 1999 Constitution of Nigeria as amended does extend to the subject matter of dispute between the parties.

From the lone ground, similarly a lone issue was raised by the Appellant and adopted by the Respondent thus:

“Whether the Sharia Court of Appeal has jurisdiction to entertain appeal relating to title to land.”

The learned counsel for the Respondent Idowu Benson, Esq. raised and argued a preliminary objection in the Respondent’s brief, wherein he raised the following poser: –

“Whether this Honourable Court can entertain the Appellants ground of Appeal being a ground of appeal not emanating from the proceedings of the lower Court”.

He argued that only issues duly canvassed and decided upon at the Court below could from ground(s) of appeal and there from issues distilled for determination. That a perusal of the Record of Proceedings of the Sharia Court of Appeal, Kebbi State reveals that the Appellant did no raise the issue of jurisdiction which he seeks to rest this Appeal upon. It was further argued for the Respondent that issue of jurisdiction raised only before this Court is not competent and the Court should discountenance it and strike out the appeal as incompetent.

Without much ado it is pertinent, as the learned counsel for the Appellant R. T. Mustapher, argued, that issue of jurisdiction is so fundamental to adjudication that it can be raised at any stage of the proceedings, even at the Supreme Court for the first time. See Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659.

Jurisdiction is a threshold issue that can be raised at any stage of the proceedings and even for the first time on appeal. See Oloriode v. Oyebi (1984) 5 S.C. 1, at pp. 28-33.

The issue of jurisdiction was therefore adequately raised by the Respondent. I would dismiss the preliminary objection and proceed to consider arguments on the appeal.

On the appeal, the learned counsel for the Appellant R. T. Mustapher, Esq argued that the issue of jurisdiction is fundamental to adjudication and can be raised at any time even for the first time on appeal. It can also be raised by the Court suo motu. See the cases of SLB Consortium V. NNPC (2011) 9 NWLR (Pt.1252) 317 at 332; Anyanwu V. Ogunewe & Ors (2014) LPELR-22184(SC); Magaji V. Matari (2000) 8 NWLR Part 670 page 722 at 724.

It was submitted for the Appellant that the foregoing authorities are to effect that a Court may only exercise jurisdiction when:

(a) It is properly constituted as regards the number and qualification of members of the bench and no member is disqualified for one reason or another;

(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

Reference was made to the notorious provision of Section 277 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), which generally limits jurisdiction of the Sharia Court of Appeal to determine civil appeals predicated upon questions involving Islamic personal law. It states thus:

(1) The Sharia Court of Appeal of a State shall, in addition to such other 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 Sub section (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 proceedings 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.

It was submitted for the Appellant that in the determination of whether or not a Court is vested with jurisdiction to hear and determine a matter, recourse should be made to the Plaintiff’s claim. See the case of Oduko V. Govt. Of Ebonyi State Of Nigeria & 3 Ors. (2009) 34 SC 154 AT 158.

The Appellant’s claim as filed before the trial Upper Shari’a Court Jega is reproduced as follows: –

“I, Alh . Musa Dankoli Ruwan Fiji is suing Muhammadu Hakimi Katu over the issue of the farms and a house entrusted to his father by our grandfather. The farms are in his possession and I requested him to give us the farms but he refused. Based on this I am suing him before this Court so that he will come and transfer to us the farms and a house entrusted to his father by our father … ”

It was argued for the Appellant that the foregoing claim is bereft of any issue of Islamic personal law. It is rather premised on title to farmland and a house as clearly mentioned therein.

As stated above, a Court’s jurisdiction is determined by considering and examining the claim of the Plaintiff at the trial court. See Kanawa V. Maikaset (2007) 10 NWLR Pt. 1042 Page 283 at 287.

It submitted for the Appellant that where the issue of appeal is title to land simpliciter, the jurisdiction of the Sharia Court of Appeal is ousted. See also the case of Buba V. Musa (2007) 7 NWLR PT. 1032 PAGE 27 AT 31.

It was further submitted that the dispute between the Appellant and the Respondent does not involve any of the matters mentioned in Section 277(2)(a) – (e) of the Constitution and that the Sharia Court of Appeal therefore has no jurisdiction to adjudicate upon this appeal. The Court was urged to resolve the sole issue in favour of the Appellant and allow the appeal.

The learned counsel for the Respondent Idowu Benson, Esq., on the other hand, argued that this appeal constitutes an abuse of Court process since it was the Appellant who appealed to the Court below by inviting it to invoke its appellate jurisdiction. The Court was urged to distinguish this Appeal from others where the Appellant is merely a Respondent at the Court below thus not being guilty of invoking the lower Court’s jurisdiction.

It was submitted for the Respondent that the Appellant cannot profit from his own wrong act. Having invoked the appellate jurisdiction of the Court below, the Appellant cannot argue that the same Court does not have the jurisdiction to determine the matter he (the Appellant) asked that Court to determine.

It was further argued for the Respondent that the issue of jurisdiction being fresh, the Respondent must only raise it after obtaining leave prior to arguing it.

The learned counsel for the Respondent urged the Court to resolve the sole issue against the Appellant and dismiss the appeal.

In the instant case, claim as reproduced above (p. 7) did not relate to any question or issue of Islamic Personal Law but rather to competing claims of title to farmlands and a house.

The Supreme Court of Nigeria has aptly pronounced the scope of the jurisdiction of Sharia Court of Appeal in the case of Magaji V. Matari (2000) 8 NWLR PT. 670 PAGE 723 AT 727 thus: –

“The intention of the constitutional provision which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject-matters of Islamic Personal Law. The intention cannot be subverted by strained construction of the provision to give it an unintended meaning”.

The provision of Section 277 of the Constitution has clearly restricted the jurisdiction of the Sharia Court of Appeal to exercising appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law.

It is pertinent to appreciate the fundamental nature of jurisdiction. It requires no leave to be raised for the first time on appeal as the Appellant did in the instant case. There are no restrictions to the right of any party or even the Court suo motu to raise and argue an issue of jurisdiction due to its crucial nature. It may be raised even in the Supreme Court for the first time. It is an elementary principle of law that the jurisdiction of a Court is very fundamental to adjudication of the matter before it. It is so radical that it forms the foundation of adjudication. Thus, if a Court lacks jurisdiction, it lacks the necessary competence to entertain the claim before it. See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Usman Danfodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p. 305.

Where jurisdiction is lacking, no Court under any guise can confer adjudicative competence upon itself. See Boyi V. Hassan (2001) 18 NWLR Pt. 744 Pg. 41 at 49.

It is clear that, in the instant case, the dispute between the Appellant and the Respondent does not involve any issue of Islamic personal Law. The fact that the property in dispute is acquired or alleged to be sourced from inheritance does not inject an issue of inheritance in the dispute so as to confer jurisdiction to Sharia Court of Appeal. In order to qualify as dispute within the scope of Section 277 of the Constitution, the issue or issues involved therein must relate to application of Islamic personal Law. The instant case merely involves simple competing claims of ownership of three farmlands and a house unrelated to waqf, gift, will, succession or any claim to an estate of a deceased Muslim or property of a missing Muslim or person of unsound mind, etc and therefore does not fall within the scope of Section 277 (2) (a) – (e) of the Constitution.

In the case of Garba V. Dogon Yaro (1991) 1 NWLR (Pt. 65) P.102 @ 111. This Court per OKUNOLA, J.C.A (of blessed memory) aptly stated the nature of a claim involving Islamic Personal law thus:-

“Before a dispute could become a question regarding the issue of succession in order to confer jurisdiction on Sharia Courts, it must make succession an issue. Thus, the instances in which issue or dispute could be made a subject of succession as envisaged by Section 242 (2) (c) of the 1979 Constitution now Section 277(2)(c) of the 1999 Constitution (As Amended) includes the followings: viz –
(a) A dispute over the failure to distribute the estate after the death of the deceased.

(b) A dispute over the devolution of the estate between the heirs.

(c) A dispute over any heritable estate which any person withholds away from the heirs.

(d) A dispute over the right to make a particular property within the estate.

(e) A dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime.

(f) A dispute over payment of a debt made by the deceased in his life time from the estate he or she had left behind.

(g) A dispute over the exclusion of an heir from inheriting from the estate. And all such dispute which can be attributed to the estate succession.”

In the instant case, the dispute is completely bereft of any issue requiring the application of Islamic personal Law.

It is clear from the foregoing appraisal that the Court below did not have the required competence to hear the appeal in the Instant case. Its proceedings and judgment therefore amount to nullity resulting from incompetence. The defect is extrinsic to the adjudication and therefore hooks the whole exercise to a non- starting level.

My vision is focused on the resolution of the sole issue in favour of the Appellant. I so resolve and allow the appeal. The null judgment of the Court below in appeal number SCA/KBS/JG/52/2015 delivered 9th November 2016 is accordingly struck out. The appeal from the decision of the Upper Sharia Court Jega is hereby referred to the Appeal Division of the High Court of Kebbi State for due determination thereat.

In the circumstance, there shall be no order as to costs.

SHUAIBU, JCA

I agree entirely with the judgment just delivered by my learned brother, Hussein Mukhtar, JCA that the lower Court lacks the jurisdiction to adjudicate over the dispute involving the parties therein.

I accordingly allow the appeal and abide by all consequential orders made in the lead judgment.

OHO, JCA

I read the draft of the judgment of the Court below just delivered and I am in agreement with the reasoning and conclusions reached that the appeal has merit and that it is according allowed. It will be recalled that in the instant case, the dispute between the parties is completely bereft of any issue requiring the application of Islamic personal Law. Consequently, the Court below lacked the requisite competence to hear the appeal in the instant case. I subscribe to all other consequential orders made thereto.

Appearances:

Both Appellant and Respondent were served through their counsel

R. T. Mustapher, Esq. and Idowu Benson, Esq. respectively on 14/05/2018. For Appellant(s)

Both Appellant and Respondent were served through their counsel

R. T. Mustapher, Esq. and Idowu Benson, Esq. respectively on 14/05/2018. For Respondent(s)