GWABBARE V GWABBARE

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

ON THURSDAY, 12TH JULY, 2018

Suit No: CA/S/3S/2017

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR

MUHAMMED LAWAL SHUAIBU

FREDERICK OZIAKPONO OHO

BETWEEN

ABDULLAHI SARKIN GOBIR GWABBARE
(APPELLANT)

AND

DANDARE SARKIN GOBIR GWABBARE
(RESPONDENT)

PRONOUNCEMENT

A. JURISDICTION
1. Jurisdiction of the Sharia Court of Appeal – The fundamental nature of jurisdiction and how the Sharia Court of Appeal has no jurisdiction to determine issues relating to title to land.
Whether the Sharia Court of Appeal has jurisdiction to entertain appeals in relation to declaration of title to land

The learned counsel for the Appellant submitted that an avalanche of judicial authorities has settled the issue of jurisdiction, which is the authority a Court or Tribunal has to adjudicate over a matter submitted to it. Where a Court is drained of the requisite jurisdiction, its proceedings on a matter, no matter the quantum of diligence, brilliance, sophistry and transparency invested in it, will be trapped in the intractable vortex of nullity. See the cases of Dangana v. Usman (2013) 6 NWLR (Pt. 1349) Pg. 50 and Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) Pg. 123.

It was submitted for the Appellant that jurisdiction is a threshold issue and can be raised at any time even on appeal for the first time. The rationale behind this principle of law is based on the fact that jurisdiction is the fulcrum of any valid adjudication and without it the whole proceedings will amount to nothing other than mere exercise in futility and a total nullity.
See the case of Awojolu V. Odeyemi (2013) 14 W.R.N. Pg. 28 at 41, where my learned brother Denton-West, JCA observed thus: –

“The issue of jurisdiction is a bedrock of adjudication, I wish to therefore emphasize that the issue of jurisdiction which goes to the root of a matter is fundamental and where a Judge or Court is not clothed with jurisdiction, whatever proceedings no matter how well conducted amounts to a nullity.”

Similarly in Peter Obi V. INEC (2007) 13 NSCQLR Pg. 753 at 776-777, the Supreme Court per Aderemi, JSC held thus:-

“Jurisdiction is the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him … it follows therefore, that where a Court takes upon itself to exercise power of adjudication, which it does not possess, its decision is tantamount to nothing …”

See also the case of Mobil Oil (Nig.) Plc. V. Yusuf (2012) 9 NWLR (Pt.1304) 47 at 57, paragraphs A-B. The paramount place of jurisdiction in the process of judicial adjudication was succinctly captured in the notorious pronouncement of the Supreme Court in Gabriel Madukolu 8 Ors V. Johnson Nkemdilim (1962) 1 ALL NLR 587 @ page 595; 2 SCNLR 341at 348 where the apex Court held thus:-

“Put briefly, a Court is competent when:-

a. It is properly constituted as regards numbers and qualifications of the 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 the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

See the cases of Sun Insurance V. Umez Eng Ltd. (2015) 62 (Pt. 1) NSCQR p. 481 at 489; Okarika V. Samuel (2013) 53 (Pt. 1) NSCQR p. 220 at 226-227 and Obaro V. Hassan (2013) 53 (Pt. 1) NSCQR p. 311 at 316-317.

In view of the foregoing luminous judicial pronouncements, it has become apropos to reproduce the provision of Section 277 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides 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 provision of Subsection (2) of this Section;

(2) For the purpose 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;

(c) Any question of Islamic personae Law regarding a waif, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.”

The dispute in the instant case is predicated upon competing claims of title to land simpliciter, which issue is extraneous to the foregoing provision of the Constitution. It is therefore obvious that the lower Court lacks the requisite adjudicatory powers to hear and determine the appeal against the judgment of the Upper Sharia Court Gwandu. It is the plaintiﬀ’s claim at the trial Court that determines the jurisdiction of the Court. See Alhaji Umoru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; (1989) 8 SCNJ I Engr Samuel D. Yalaju Amaye v. Associated Registered Engineering Contractor Ltd. & Ors (1990) 4 NWLR (Pt. 145) 422; (1990) 6 SCNJ 49.

The claim of the plaintiﬀ/Respondent at the trial Shari’a Court Argungu was for declaration of title over the disputed house between him and the defendant/Appellant. This issue of jurisdiction of the Court below has been pronounced by the Supreme Court and by this Court in several cases to the eﬀect that once the issue of appeal is title to land, the jurisdiction of the Sharia Court of Appeal is ousted. See Abuja v. Bizi (1989) 5 NWLR Pt. 119) 120; Umaru Alhaji Garba v. Adamu Dogon Yaro (1991) 1 NWLR (Pt. 165) 102. Thus, the Sharia Court of Appeal has no jurisdiction to determine any issue involving title to land simpliciter.

The claim filed by the Respondent against the Appellant before the trial Court is reproduced as follows:-

“I Dandare do hereby sue … (the defendant who) requested me to give him one year for him to clear his land and I gave him one year and now it is more than one and I told him to leave my house (but) he refused for that I sued him before this Court for him to park his belongings and leave my house.”

The foregoing claim is clearly predicated upon a claim of title and vacant possession regarding a landed property that apparently falls outside the scope of the notorious provision of Section 277 (1) and (2) (a) to (e) of the Constitution, which is sacrosanct and cannot be circumvented. See the cases of Magaji V. Matari (2000) 8 N.W.L.R. (Pt. 670) Page 722, also reported in (2000) F.W.L.R. (Pt. 18) 237 at 248; Albaji Yabaya Salema & anor V. Albaji Mamman & Anor (2006) 3 S.L.R. (Pt. 203). In Maishanu V. Manu (2007) NWLR (Pt. 1032) page 42, the Court held as follows:-

“The jurisdiction of the Shari’a Court of Appeal of a State is constitutional and it is prescribed in Section 277 (2) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999. On a fair to the section, the jurisdiction of the Court is confined and limited to all questions of what is termed as Islamic personal law which Islamic personal status is regarding the matters prescribed in Subsection 2 (a) – (e) of Section 277 of the Constitution. These subsections related to marriage and its dissolution, family relationship and guardianship of an infant. It also includes ‘waif gift, will or succession where the endower, donor, testator or deceased person is a Muslim. In other words, the Shariah Court of Appeal has no jurisdiction to determine any matter which is not (predicated upon) an issue of Islamic personal law.

See also the case of Hakimi Hoyi V. Magaji Hassan (2006) 3 S.L.R. p. 195 at 197-198.

LEAD JUDGMENT DELIVERED BY MUKHTAR, JCA

This appeal emanates from the judgment of the Kebbi State Shari’a Court of Appeal, Argungu Division, delivered on the 27th day of October 2016, wherein the decision of the Upper Shari’a Court Gwandu, Kebbi State was affirmed which also affirmed the decision of the trial Shari’a Court, Argungu. Disgruntled with the said decision, the Appellant proceeded to file this appeal vide a Notice of Appeal predicated upon the following twin grounds:

1. The judgment is against the weight of evidence.

2. The learned trial judges erred in law when they assumed jurisdiction on a matter they have no jurisdiction.

PARTICULARS:

a. The matter between the Appellant and the Respondent is in respect of a house dispute.

b. Matter is a dispute of house.

c. The lower Court has jurisdiction to try appeals founded on Islamic Personal Law only.

d. The lower Court cannot try issue not bordering on Islamic personal law.

e. A house dispute is not within Islamic personal law.

The original suit was instituted by the Respondent against the Appellant before the trial Shari’a Court Argungu in Suit No. CV/06/2015, praying the Court to enforce the sale agreement between the parties in respect a house located at Gwabbare, Gwandu Local Government Area, Kebbi State and to order the Appellant to vacate the house and hand same over to the Respondent. (See page 1 of the record of appeal)

The trial Court affirmed the sale transaction and ordered the Appellant to surrender the house in dispute to the Respondent. (See page 12 of the record of appeal). Dissatisfied with this decision, the Appellant appealed to the Upper Shari’a Court, Gwandu, which affirmed the decision of the trial Court. (See pages 13 to 14 of the record of appeal). The Appellant further appealed to the Kebbi State Shari’a Court of Appeal. The Court below, its judgment delivered on 27th October 2016, dismissed the appeal and affirmed the concurrent decisions of the two lower Courts. (See page 19 of the record of appeal). Still aggrieved, the Appellant further appealed to this Court on the foregoing two grounds, from which the Appellant distilled the following lone issue for determination:

Whether from the claims of the Respondent before the trial Court, the lower Court has the requisite jurisdiction to hear and determine the appeal filed before it. (Distilled from grounds one and two)

See the case of Awojolu V. Odeyemi (2013) 14 W.R.N. Pg. 28 at 41, where my learned brother Denton-West, JCA observed thus: –

Similarly in Peter Obi V. INEC (2007) 13 NSCQLR Pg. 753 at 776-777, the Supreme Court per Aderemi, JSC held thus:-

See also the case of Mobil Oil (Nig.) Plc. V. Yusuf (2012) 9 NWLR (Pt.1304) 47 at 57, paragraphs A-B.

The paramount place of jurisdiction in the process of judicial adjudication was succinctly captured in the notorious pronouncement of the Supreme Court in Gabriel Madukolu 8 Ors V. Johnson Nkemdilim (1962) 1 ALL NLR 587 @ page 595; 2 SCNLR 341at 348 where the apex Court held thus:

“Put briefly, a Court is competent when:-

a. It is properly constituted as regards numbers and qualifications of the 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 the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

See the cases of Sun Insurance V. Umez Eng Ltd. (2015) 62 (Pt. 1) NSCQR p. 481 at 489; Okarika V. Samuel (2013) 53 ( t. 1) NSCQR p. 220 at 226-227 and Obaro V. Hassan (2013) 53 (Pt. 1) NSCQR p. 311 at 316-317.

(2) For the purpose of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent to decide-

(c) Any question of Islamic personae Law regarding a waif, gift, will or succession where the endower, donor, testator or deceased person is a Muslim.”

It is the plaintiff’s claim at the trial Court that determines the jurisdiction of the Court. See Alhaji Umoru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; (1989) 8 SCNJ I Engr Samuel D. Yalaju Amaye v. Associated Registered Engineering Contractor Ltd. & Ors (1990) 4 NWLR (Pt. 145) 422; (1990) 6 SCNJ 149.

The claim of the plaintiff/Respondent at the trial Shari’a Court Argungu was for declaration of title over the disputed house between him and the defendant/Appellant.

This issue of jurisdiction of the Court below has been pronounced by the Supreme Court and by this Court in several cases to the effect that once the issue of appeal is title to land, the jurisdiction of the Sharia Court of Appeal is ousted. See Abuja v. Bizi (1989) 5 NWLR (Pt. 119) 120; Umaru Alhaji Garba v. Adamu Dogon Yaro (1991) 1 NWLR (Pt. 165) 102. Thus, the Sharia Court of Appeal has no jurisdiction to determine any issue involving title to land simpliciter.

The claim filed by the Respondent against the Appellant before the trial Court is reproduced as follows: –

See also the case of Hakimi Hoyi V. Magaji Hassan (2006) 3 S.L.R. p. 195 at 197-198.

The claims filed by the Respondent before the Shari’a Court Argungu has nothing to do with issue of Islamic Personal Law, being a claim of title to a house located at Gwabbare village, Gwandu Local Government Area, Kebbi State and seeking an order of the Court against the Appellant to vacate the property in question and hand same over to the Respondent. The Court below (Kebbi State Shari’a Court of Appeal, Argungu Division) is without the requisite jurisdiction to hear and determine the appeal. The sole issue should therefore be and is hereby resolved in favour of the Appellant. The appeal is accordingly allowed and judgment of the Court below delivered on the 27th day of October, 2016 is hereby struck out for want of jurisdiction. It is therefore ordered that the appeal from the Upper Sharia Court Gwandu be and is hereby referred to appeal section of the High Court of Kebbi State for proper adjudication.
However, the Appellant who took the appeal to the wrong forum shall pay cash of Fifty Thousand Naira (50,000.00) to the Respondent.

SHUAIBU, JCA

I have had the opportunity to read in advance the judgment just read by my learned brother, Hussein Mukhtar, JCA. I entirely agree that the Respondent’s claim before the trial Sharia Court, Argungu has nothing to do with question of Islamic Personal Law. That being the case, the lower Court (Sharia Court of Appeal) lacks the requisite competence and jurisdiction to hear and determine the appeal arising therefrom. The appeal is accordingly allowed and I abide by all the consequential orders.

OHO, JCA

I read the draft of the judgment just delivered by my learned Brother, Hussein Mukhtar, JCA and I am in agreement with the reasoning and conclusions in allowing the Appeal as meritorious. The claim filed by the Respondent was predicated upon dispute over title to farm land at the trial Court and not in any way related to issues of Islamic personal law. This strips the Court below of its jurisdiction to hear and determine the appeal. Consequently, the appeal has merit and is accordingly allowed.

Appearances:
A.A. Fingilla, Esq. with him, Mudassir Sale, Esq. and T.O. Oluwataye, Esq. For Appellant(s)
The Respondent was duly served on 13/05/2018. For Respondent(s)