HELENDE V MUSA & ORS

HELENDE V MUSA & ORS


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

ON THURSDAY, 12TH JULY, 2018


Suit No: CA/S/24S/2016

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

DAUDA ADAMU HELENDE
(APPELLANT)

AND

SAMAILA MUSA
MARYAM ADAMU
RUKAYYA ADAMU
MARYAM IBRAHIM
(RESPONDENTS)


PRONOUNCEMENT


A. COURT
1. Jurisdiction – What the Court considers in determining jurisdiction
What determines jurisdiction of Court to entertain a cause/matter

It appears that both learned counsel are on common ground that the plaintiff or the defendant’s claim at the lower Court is what the Court considers to determine its jurisdiction. This issue has been resolved by the Supreme Court and this Court in plethora of pronouncements to the effect that it is the plaintiff’s claim at the lower Court that determines the jurisdiction of the Court. See Alhaji Umoru Abba Tukur Vs. Government of Gongola State (1989) 4 NWLR (PL 117) 517; (1989) 8 SCNJ 1, Engr Samuel D. Yalaju Amaye Vs. Associated Registered Engineering Contractor Ltd. & Ors. (1990) 4 NWLR (Pt.14 ) 422; (1990) 6 SCNJ 149. Per MUKHTAR, JCA. read in context

B. JURISDICTION
2. Jurisdiction of the Sharia Court of Appeal – Matters that the Sharia Court of Appeal can adjudicate upon
Jurisdiction of the Sharia Court of Appeal to adjudicate over a succession matter

The claim of the plaintiff/Appellant at the Upper Shari’a Court 1 Argungu was for recovery of two farmlands allegedly belonging to their deceased father Adamu Mohammad Argungu for distribution to his lawful heirs.

The dispute therefore is predicated upon land that forms part of a deceased Muslim’s estate. Whether such land has been validly sold by the 1st Respondent to the Appellant was an issue answerable only by the application of Islamic Law principles. It clearly involves question of inheritance of the two farmlands distributed to the Respondents as heirs (Respondents) by the trial Court. The matter is therefore within the scope of Section 277(2)(a)-(e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). There is no law applicable in a situation like this other than Islamic Personal Law.

It therefore follows that the Court below has jurisdiction to hear and determine the appeal from the Upper Sharia Court 1 Argungu. See the case of Maishanu V. Manu (2007) NWLR P11032 page 42.

The Shari’a Court of Appeal of Kebbi State does not only have jurisdiction in this matter but indeed has an exclusive jurisdiction. The Court below, therefore, rightly determined the appeal against the judgment of the Upper Sharia Court 1 Argungu. Per MUKHTAR, JCA. read in context


LEAD JUDGMENT DELIVERED BY MUKHTAR, JCA


This appeal emanated from the decision of the Kebbi State Shari’a Court of Appeal, Argungu Division, delivered on the 14th day of April 2015. The Kebbi State Shari’a Court of Appeal (herein referred to as the Court Below) affirming the decision of the Upper Shari’a Court 1, Argungu, Kebbi State. Disgruntled with the said decision, the Appellant filed his Notice and Grounds of Appeal before this Court based on the following sole ground of appeal:

The Sharia Court of Appeal, Argungu Division, Kebbi State erred in law when it entertained an appeal on issue, which it lacks the requisite jurisdiction to adjudicate upon.

PARTICULARS OF ERROR

a. The jurisdiction of the Sharia Court of Appeal is limited to issues relating to Islamic Personal Law as enshrined under Section 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

b. The issue before the lower Court (Sharia Court of Appeal, Argungu Division, Kebbi State) never in any way relates to Islamic Personal Law but rather issue of declaration of title over farmlands.

The 2nd, 3rd and 4th Respondents herein initiated the suit against the 1st Respondent before the trial Court, claiming two (2) farmlands in his possession which they claimed belong to their late father Adamu Mohammad Argungu. The 1st Respondent informed the Court that the farmlands are in possession of the Appellant because his father bought one of the farmlands and the other was pledged to him. (See pages 1 to 2 of the record)

The trial Court called upon the Respondents to present witnesses in support of their claim that the farmlands in dispute belong to their father. After listening to the witnesses, the trial Court conducted l’izar, made its findings and entered judgment in favour of the Respondents. (See pages 7 and 12 of the record).

Dissatisfied with that decision, the Appellant appealed to the Court below, which in the end affirmed the decision of the trial Court.

Still aggrieved, the Appellant further appealed to this Court on the foregoing lone ground of appeal from which a lone issue was equally distilled for determination thus:

Whether from the claims of the Appellant before the trial Court, the Court below has the requisite jurisdiction to hear and determine the appeal filed before it.

The learned counsel for the Appellant A. A. Fingilla, Esq. appearing with N. S. Gulma, Esq. argued that plethora judicial authorities have shown that jurisdiction 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 a 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. I23.

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 be nothing more a mere exercise in futility, a complete 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.

Let it be noted that an action of a Judge which relates not to his office, is of no force; there can never be obedience to any order he may make.”

See also the case of Mobil Oil (Nig.) Plc. V. Yusuf (2012) 9 NWLR (Pt. 1:304) 47 at 57, paragraphs A-B.

The paramount place of jurisdiction in the process of judicial adjudication was succinctly and graphically captured in the pronouncement of the Supreme Court in Gabriel Madukolu and Ors V. Johnson Nkemdilim (1962) 1 ALL NLR 587 at page 595; 2 SCNLR 341: page 348. Thus, put briefly, 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 fulfilment of any condition precedent to the exercise of jurisdiction.

See the cases of Sun Ins. 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.

The Court was urged to resolve the lone issue in favour of the Appellant and allow the appeal.

The learned counsel for the Respondents Y. Y Gwazawa, Esq. however argued that the Court below is clothed with requisite jurisdiction to hear and determine the appeal having regard to the nature of the claim of the 2nd, 3rd, and 4th Respondents against the 1st Respondent and the judgment of the trial Court as per the claim of the 2nd, 3rd, and 4th Respondents. (See pages 10-11 of the record).

It was submitted that the Appellant was a mere busy body as he was not a party at the trial Court and was only called by the trial to confirm whether the farmlands in dispute were in his possession, which he so affirmed. The Appellant was therefore only a witness in the matter who testified to the effect that the 1st Respondent sold the farmlands in depute to him. (See page 3 of the record)

It was submitted for the Respondents that the claims of the 2nd to 4th Respondents at the trial Court was not for mere declaration of title to land simpliciter as argued by the Appellant’s counsel but for inherited farmlands between the 2nd, 3rd, 4th Respondents and the 1st Respondent. (See page 2 of the record of appeal).

The 2nd, 3rd, and the 4th Respondents having disagreed with the selling of their right of inheritance by the 1st Respondent and the trial Court having considered the nature of the claim before it and two credible witnesses, the trial Court went ahead and distributed the said farms to the Respondents who are the heirs of the original owner of the said farms (the Respondents’ father). (See pages 10-12 of the record). This matter falls within the scope Section 277 (1) and (2) (a) to (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore subject to the jurisdiction of the Court below. The law is reproduced 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 Court was urged to hold that the foregoing provision is applicable to the instant case and that the Court below has requisite jurisdiction to hear and determine the appeal and resolve the lone issue in favour of the Respondents.

It appears that both learned counsel are on common ground that the plaintiff or the defendant’s claim at the lower Court is what the Court considers to determine its jurisdiction. This issue has been resolved by the Supreme Court and this Court in plethora of pronouncements to the effect that it is the plaintiff’s claim at the lower Court that determines the jurisdiction of the Court. See Alhaji Umoru Abba Tukur Vs. Government of Gongola State (1989) 4 NWLR (PL 17) 517; (1989) 8 SCNJ 1, Engr Samuel D. Yalaju Amaye Vs. Associated Registered Engineering Contractor Ltd. & Ors. (1990) 4 NWLR (Pt.145) 422; (1990) 6 SCNJ 149.

The claim of the plaintiff/Appellant at the Upper Shari’a Court 1 Argungu was for recovery of two farmlands allegedly belonging to their deceased father Adamu Mohammad Argungu for distribution to his lawful heirs. The dispute therefore is predicated upon land that forms part of a deceased Muslim’s estate. Whether such land has been validly sold by the 1st Respondent to the Appellant was an issue answerable only by the application of Islamic Law principles. It clearly involves question of inheritance of the two farmlands distributed to the Respondents as heirs (Respondents) by the trial Court. The matter is therefore within the scope of Section 277(2)(a)-(e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). There is no law applicable in a situation like this other than Islamic Personal Law.

It therefore follows that the Court below has jurisdiction to hear and determine the appeal from the Upper Sharia Court 1 Argungu. See the case of Maishanu V. Manu (2007) NWLR P11032 page 42.

The Shari’a Court of Appeal of Kebbi State does not only have jurisdiction in this matter but indeed has an exclusive jurisdiction. The Court below, therefore, rightly determined the appeal against the judgment of the Upper Sharia Court 1 Argungu.

The lone issue must therefore be and is hereby resolved against the Appellant and in the Respondent’s favour. The appeal, therefore, lacks merit and is hereby dismissed. There shall be no order as to costs.

SHUAIBU, JCA

I agree entirely with the judgment of my learned brother, Hussein Mukhtar, JCA just delivered. He has covered the main issue canvassed in this appeal. I have nothing more useful to add to his reasoning which I hereby adopt as mine. The appeal fails and it is dismissed by me.

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 reached in resolving the sole issue for determination against the Appellant. Despite the issue of jurisdiction, the dispute in the instant case raised a crucial issue which touches on the question of inheritance of a Muslim’s estate. The Shari’a Court of Appeal does not only have jurisdiction in the matter but indeed has an exclusive jurisdiction as distinct from a simple claim of title to land. It is therefore obvious that the lower Court has the requisite adjudicatory powers to hear and determine the appeal against the judgment of the Upper Sharia Court, Gwandu as it did. The appeal, therefore, lacks merit and is hereby dismissed. The parties are to bear their respective costs.

Appearances:

A. A. Fingilla, Esq. with him, N. S. Gulma, Esq. For Appellant(s)

C. B. Sarkin Noma, Esq. (Holding brief of Y. Y. Gwozawa, Esq.) For Respondent(s)