MAGIZAWA V MAGIZAWA

MAGIZAWA V MAGIZAWA


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

ON WEDNESDAY, 22ND MARCH, 2017


Appeal No: CA/S/99S/2015

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

ALHAJI HASHIMU MAGIZAWA
(APPELLANT)

AND

SARKIN FAWA MAGIZIWA
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Brief of Argument – What appeal succeeds upon
Whether failure of the Respondent to file brief of argument will make the appeal of the Appellant to succeed

…Appeal shall have to succeed upon its own merit and not necessarily on the failure of the Respondent to file a Brief of argument. See Cameroon Airlines vs. Otutuizu (2011) 4 NWLR 512; Unity Bank Plc vs. Bouari (2008) LPELR -3411 (SC). Per OHO, JCA. read in context

B. COURT
2. Jurisdiction – What lack of jurisdiction amounts to
Effect of a court hearing a matter where it has no jurisdiction

Where a Court lacks jurisdiction in matter before it the entire proceedings including the judgment, no matter how well conducted or admirable it otherwise is, amounts to complete nullity. Per MUKHTAR, JCA. read in context

C. JURISDICTION
3. Jurisdiction of the Sharia Court of Appeal – What the Shariah Court of Appeal shall be competent to decide upon
Whether the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law

The first issue raised for the determination of this Court is; whether having regards to the its jurisdiction as conferred by Section 277 of the 1999 Constitution, (as Amended) the Sharia Court of Appeal, Zamfara State has the appellate jurisdiction to hear and to determine the appeal as Constituted. The question to perhaps, address at this point is whether the Sharia Court of Appeal, Zamfara State is clothed with the requisite jurisdiction to have entertained the Appeal filed by the Appellant and which arose from the decision of the Upper Sharia Court, Kaura Namoda in a matter grounded in criminal trespass and mischief.
Section 277(1) and (2) of the Constitution of Nigeria, 1999 as Amended provides as follows:

“277(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the Law of the State, exercise such appellate and supervisory jurisdictions in Civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Sub-section (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 founding 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 is important to note that the complaint of the Respondent which had given rise to this Appeal began in the Upper Sharia Court Kaura Namoda when the Respondent as claimant sued the Appellant as Defendant for the offences of criminal trespass and mischief when the Appellant was said to have entered the land of the claimant, built a shop thereon without the claimant’s consent and permission thereby committing an offence under Section 179 Zamfara State Sharia Penal Code. Section 277(1) and (2) of the Constitution of Nigeria, 1999 as Amended and which is in pari materia with Section 242(2) of the 1979 Constitution of Nigerian have received several judicial pronouncements by this and as well as the Apex Court. In the case of Magaji vs. Matari (2000) 2 NSCQR 636, the Supreme Court per A. B. WALI, JSC held at page 645 as follows;

“Looking at the facts in this case, the dispute cannot fit in any of the matters listed in Section 242(2) of the Constitution. It is neither a case for a claim of inheritance nor that of a gift, a wakf or a will. It is simply a case involving ownership of a piece of land in dispute between the contending parties. It is therefore a misconception by learned Counsel for the Respondent to say that the dispute involves question of inheritance within the contemplation and provisions of Section 242(2) (c) and (e) which was being withheld from the Respondent and his privies.”

In the contribution and concurring Judgment of MOHAMMED, JSC at pages 648 – 649 he said:

“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. The dispute between the Appellant and the Respondent does not involve any of the matters I mentioned above. The Sharia Court of Appeal has therefore no jurisdiction to adjudicate on the dispute.”

In his contribution to the Judgment, this is what KARIBI – WHYTE, JSC had to say at page 653:

“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 personal law. The intention of the provision is to give it an unintended meaning.”

There may be the need to state here, that the dispute between the Appellant and the Respondent, has arise from contending claims between the duo on the question of ownership to a parcel of land, and there is no way this can be said to relate, involve or have the semblance of any questions of Islamic Personal Law regarding a wakf, gift, will or succession, more so when dispute rather has the characteristics of an action steeply grounded in criminal proceedings. If at all for any reasons, there is no way the offences of criminal trespass and mischief for which the Appellant stood trial at the lower Court can in any way be pitch-forked into any of the circumstances permitted under the provisions of Section 277(2) (a) – (e) of the Constitution of Nigeria, 1999 (as Amended). In this connection, see the case of Sarkin Kudu Mohammed Maidawa vs. Sarkin Dawaki Husaini (2000) 1 NWLR (PT. 665) 698; Garba vs. Dogon Yaro (1991) 1 NWLR (PT. 165) 102; Maida vs. Modu (2000) 4 NWLR (PT 651) 99; Usman vs. Kareem (1995) NWLR (PT. 379) 537. Per OHO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


This Appeal is against the Judgment of the Sharia Court of Appeal of Zamfara State sitting at Gusau in Appeal No. SCA/KN/H2/2012 and delivered on the 6-5-2013 in which the Sharia Court of Appeal dismissed the Appeal of the Appellant against his conviction and sentence for mischief and criminal trespass by the Upper Sharia Court, Kaura Namoda in case No. CR/F1/35/2011 delivered on the 4-1-2011. By a direct complaint of Criminal Trespass and Mischief at the Upper Sharia Court, Kaura Namoda, the Respondent herein made this complaint to the Court, thus;

“I Sarkin Fawa Magizawa Kada is hereby suing Alhaji Hashimu Magizawa for committing criminal trespass and mischief. He trespassed to my land a place of our business which I inherited from my father which he inherited from his father. He (Respondent) entered and cut down the trees and erected a building without my consent and permission.”

The Appellant as Defendant before the Upper Sharia Court denied the allegations and said that he was given authority by the District Head to enter the land. (See pages 1-2 of the records of Appeal.) At the trial Court the Respondent as Claimant was asked to produce his witnesses in proof of his allegations. The Respondent produced a document titled; Letter of Occupancy issued to him on the 3-8-2011 by the Local Government as evidence of ownership over the parcel of land and called no witnesses. (See pages 5-6 of the records of Appeal).

The trial Court then went ahead and framed a charge of Criminal trespass and mischief against the Appellant as Defendant contrary to Sections 179 and 380 of the Zamfara State Sharia Penal Code respectively. Upon the plea of the Appellant, the trial Court proceeded to convict him of the Offences of mischief and Criminal trespass and for he was accordingly sentenced. (See pages 7-10 of the records of Appeal).

Aggrieved, the Appellant appealed to the Sharia Court of Appeal of Zamfara i.e., the lower Court herein, on three (3) Grounds of Appeal. The lower Court at the conclusion of hearing dismissed the Appeal and affirmed the conviction and sentence by the trial Court on the 6-5-2013 and ordered the removal of the building erected on the parcel of land in dispute. (See pages 11-17 and 19-26 of the records of Appeal).

Aggrieved, once again by the decision of the lower Court, the Appellant has Appealed to this Court vide his Notice of Appeal filed on the 13-5-2013 and contained at pages 27 to 29 of the Record of Appeal. There are two (2) Grounds of Appeal filed, which are reproduced without their particulars as follows;

GROUNDS OF APPEAL;

1. The Hon. Kadis erred in law in assuming jurisdiction on Criminal Proceedings emanating from the decision of the trial of Upper Sharia Court.

2. The Sharia Court of Appeal, Zamfara State erred in law when it confirmed the decision of the trial Upper Sharia Court that was perverse, unjustifiable, unwarranted and unsupportable.

ISSUES FOR DETERMINATION;

Two (2) issues were nominated for the determination of the Court by the Appellant as follows;

1. Whether, having regard to its jurisdiction as conferred by Section 277 of the 1999 Constitution, the Sharia Court of Appeal, Zamfara has the Appellate Jurisdiction to hear and determine this appeal as constituted? (Ground 1).

2. Whether the lower Court was right in affirming the conviction and sentence of the Appellant regard being had to the evidence adduced at the trial Court? (Ground 2).

The Appellants Brief of argument dated 15-3-2016 was settled by PWAHOMDI, L. M. ESQ., and filed on the same date. The records of Court show that despite service of Appellant’s Brief of argument on the Respondent, he neither put up appearance in this Court nor did he file a Respondent’s Brief of argument as expected. The result of this is that this Appeal is heard solely on the Brief of argument filed by the Appellant. This notwithstanding, this being an Appellate Court the Appeal irrespective of the fact that the Respondent has failed to file a Brief of argument shall be heard on its merit. This is and has always been that the Appeal shall have to succeed upon its own merit and not necessarily on the failure of the Respondent to file a Brief of argument. See Cameroon Airlines vs. Otutuizu (2011) 4 NWLR 512; Unity Bank Plc vs. Bouari ( 08) LPELR -3411 (SC). At the hearing of the Appeal on the 15-3-2017, learned Appellant’s Counsel adopted Appellant’s Briefs of argument and urged this Court to resolve this Appeal in favour of the Appellant.

ARGUMENTS BY LEARNED APPELLANT’S COUNSEL; ISSUE ONE;

Whether, having regard to its jurisdiction as conferred by Section 277 of the 1999 Constitution, the Sharia Court of Appeal, Zamfara has the Appellate Jurisdiction to hear and determine this appeal as constituted? (Ground 1).

Counsel argued that the importance of jurisdiction to a Court of law cannot be overemphasized whether the proceedings are of a civil or criminal nature and that no matter how well conducted the proceedings where the Court lacks jurisdiction to entertain the case, the efforts of the Court comes into nothingness. He contended that the issue of jurisdiction can be raised at anytime or stage of the proceedings and before any Court including the Apex Court. Counsel cited a plethora of decided cases some of which includes the following; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Oloruntoba–Oju vs. Abdul Raheem (2009) 6 MJSC (PT.1) 1 AT 30-31; Kasunmu vs. Shitta Bey (2006) 17 NWLR (PT. 1008) 372 AT 420 and Auta vs. Bizi (1989) 5 NWLR (PT.199) 120 AT 140.

It was further contended that the jurisdiction of a Court is always defined either by the relevant constitutional or statutory provisions; and that in civil cases what determines whether the Court has jurisdiction or not is the Plaintiff’s claim read in the light of the relevant constitutional and statutory provisions. However, in the case of criminal cases, Counsel contended that the situation is different as it the offence vis-à-vis the law creating the offence and other jurisdictional provisions that reveal whether a Court has jurisdiction to entertain the matter or not. Counsel cited the cases of Almustapha vs. State (2001) 8 NWLR (PT. 715) 414; Mattaradona vs. Ahu (1995) 8 NWLR (PT. 412) 225; Kasunmu vs. Shitta Bey (Supra) 421; and David vs. Zabia (1998) 7 NWLR (PT. 556) 105 AT 2.

In the instant case, Counsel further contended that the subject matter of the action which culminated in this Appeal in the lower Court arose from a criminal proceeding in which the Respondent complained against the Appellant for the offences of criminal trespass and mischief before the trial Court. According to Counsel the most relevant provisions on the jurisdiction of the Sharia Court of Appeal in the instant case is Section 277 of the 1999 Constitution of Nigeria as Amended.

Against this backdrop, Counsel submitted that the jurisdiction of the Sharia Court of Appeal is restricted to certain specific subject matters involving the questions of Islamic personal Law and therefore any matter outside civil proceedings is not within the jurisdiction of the Sharia Court of Appeal. He further submitted that the lower Court is not vested with the jurisdiction to entertain the Appeal as constituted, which involves criminal proceedings from the trial Court. Counsel cited the cases of Ibrahim vs. Fulani (2003) 18 WRN 40 at 80-81; Haruna & 10 Ors vs. Suleiman & A. G. Zamfara State (2014) 2 SQLR (PT. IV) 521 at 537.

Learned Counsel further argued that Subsection 1 of Section 277 of the Constitution of Nigeria, 1999 as Amended vests the State Legislature with powers to confer additional Appellate Jurisdictions on the Sharia Court of Appeal and pursuant to which the Zamfara State Sharia Court (Establishment) Law 1999 expanded provisions for the Jurisdiction of the State Sharia Courts of Appeal in was done in the light of Sections 42 and 43 of the Sharia Courts (Establishments) Law, 1999 of Zamfara State.

Learned Counsel also argued that the said provisions of Sections 42 and 43 of the Law have since been declared null and void by this Court in the case of Haruna & 10 Ors vs. Suleiman & A. G. Zamfara State (Supra) for reason of its being inconsistent with the provision of Section 277 (1) and (2) of the Constitution of Nigeria, 1999 as Amended.

Counsel also contended that it was the parties in this Appeal that agreed to confer jurisdiction on the lower Court within the contemplation of Section 277 (2) (e) of the 1999 Constitution. He argued that neither the Court nor the parties can confer jurisdiction on the Court either by consent, waiver, acquiescence or even agreement where none exists. He further contended that the lower Court has no jurisdiction to entertain this Appeal involving criminal proceedings outside the relevant Constitutional provisions of jurisdiction of the Court. Counsel cited the cases of Dairo vs. UBN (2005) 2 WRN 1 at 42; Nigeria Telecom Ltd vs. Sani (2011) 14 WRN 79 at 94-95; Mogaji vs. Ogele (2012) 50 WRN 41 at 97; David Umaru & Anor vs. Mu’azu Babangida Aliyu (2011) 6 SCM 1 at 11.

Arising from the foregoing Counsel urged this Court to hold that the Sharia Court of Appeal Zamfara State lacks the jurisdiction and competence to entertain the Appeal involving criminal proceedings outside the provisions of Section 277 (1) and (2) of the Constitution of Nigeria, 1999 as Amended. He urged this Court to resolve this Appeal in favour of the Appellant.

ISSUE TWO;

Whether the lower Court was right in affirming the conviction and sentence of the Appellant regard being had to the evidence adduced at the trial Court? (Ground 2).

Learned Counsel contended that from the records of Appeal, the complaint of criminal trespass and mischief by the Respondent against the Appellant was rooted in the fact that he inherited the parcel of land from his father who also inherited from his own father, but Counsel contended that at page 5 of the record of Appeal, the Respondent merely tendered a letter dated 3-8-2011 issued to him by the Chairman of the Local Government purporting to allocate the parcel of land to him, which the trial Court placed reliance upon and the admission of the Appellant in convicting and sentencing the Appellant for the offences of criminal trespass and mischief (see pages 7-10 of the record of Appeal). According to Counsel the lower Court, in its judgment at pages 19-26 of the record upheld the trial Court’s findings on the evidence adduced and affirmed the Appellant’s conviction and sentence and further ordered the demolition of the building Appellant erected thereon.

Counsel drew attention to the fact that this Appeal was criminal in nature and that the settled position of the law is that in criminal trials the onus of proof rests squarely on the prosecution and that until that duty is discharged, an accused person is not under a duty to adduce evidence. He further contended that the standard of proof is beyond reasonable doubt and that same could only be discharged by the adduction of credible, cogent and compelling evidence to prove the elements of the offence charged. It was also contended that such evidence could be either direct, circumstantial of confessional. Counsel cited the cases of Idemudia vs. State (1997) 7 NWLR (PT. 610) 202; Aigbedion vs. State (2000) 7 NWLR (Pt. 666) 686; Nwosu vs. State (1998) 8 NWLR (Pt. 562) 432.

In the instant case, Counsel contended that the Appellant was charged for the offences of criminal trespass and mischief contrary to Sections 179 and punishable under Section 185 and 379 and 380 of the Zamfara State Sharia Penal Section respectively. It was further contended by Counsel that in order to determine whether the Prosecution, (Respondent) discharged the onus of establishing the offences charged beyond reasonable doubt, the trial Court was under a duty to consider the totality of the evidence before making findings as to whether all the ingredients of the offences had been proved by the prosecution. In other words, Counsel argued that it is the totality of the evidence that has to be evaluated and assessed together in order to determine a case and come to a just conclusion. He cited the cases of Akpan vs. State (1994) 9 NWLR (PT. 368) 341; Ndidi vs. State (2007) 13 NWLR (Pt. 1052) 633.

Learned Counsel also argued that in the instant case, while the root of title of the Respondent was that he inherited the parcel of land in dispute from his father, the documentary evidence tendered showed it was allocated to the Respondent on the 8-3-2011 by the Chairman of the Local Government, while the Appellant pleaded that he was given authority to enter into the parcel of land by the District Head. Learned Counsel further argued that the proper evaluation of the evidence adduced in the trial Court would have revealed that the Respondent did not discharge the onus of proof for the offences of criminal trespass and mischief to warrant conviction and sentence. Counsel therefore submitted that the decision of the trial Court that the Respondent proved the allegations of criminal trespass and mischief and affirmed by the lower Court is perverse and cannot be sustained by the evidence adduced. He contended in addition that there had been a fundamental breach of the applicable law or procedural law and that the essential ingredients of the offences were never established. He cited the cases of Igwe vs. State (1982) 9 SC 174; Michael vs. State (2000) 2 WRN 23 at 49. Counsel finally urged the Court to allow this Appeal and set aside the conviction and sentence passed on the Appellant.

RESOLUTION OF APPEAL

The first issue raised for the determination of this Court is; whether having regards to the its jurisdiction as conferred by Section 277 of the 1999 Constitution, (as Amended) the Sharia Court of Appeal, Zamfara State has the appellate jurisdiction to hear and to determine the appeal as Constituted. The question to perhaps, address at this point is whether the Sharia Court of Appeal, Zamfara State is clothed with the requisite jurisdiction to have entertained the Appeal filed by the Appellant and which arose from the decision of the Upper Sharia Court, Kaura Namoda in a matter grounded in criminal trespass and mischief.

Section 277(1) and (2) of the Constitution of Nigeria, 1999 as Amended provides as follows:

“277(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the Law of the State, exercise such appellate and supervisory jurisdictions in Civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Sub-section (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 founding 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 is important to note that the complaint of the Respondent which had given rise to this Appeal began in the Upper Sharia Court Kaura Namoda when the Respondent as claimant sued the Appellant as Defendant for the offences of criminal trespass and mischief when the Appellant was said to have entered the land of the claimant, built a shop thereon without the claimant’s consent and permission thereby committing an offence under Section 179 Zamfara State Sharia Penal Code.

Section 277(1) and (2) of the Constitution of Nigeria, 1999 as Amended and which is in pari materia with Section 242(2) of the 1979 Constitution of Nigerian have received several judicial pronouncements by this and as well as the Apex Court. In the case of Magaji vs. Matari (2000) 2 NSCQR 636, the Supreme Court per A. B. WALI, JSC held at page 645 as follows;

“Looking at the facts in this case, the dispute cannot fit in any of the matters listed in Section 242(2) of the Constitution. It is neither a case for a claim of inheritance nor that of a gift, a wakf or a will. It is simply a case involving ownership of a piece of land in dispute between the contending parties. It is therefore a misconception by learned Counsel for the Respondent to say that the dispute involves question of inheritance within the contemplation and provisions of Section 242(2) (c) and (e) which was being withheld from the Respondent and his privies.”

In the contribution and concurring Judgment of MOHAMMED, JSC at pages 648 – 649 he said:

“Land disputes can only be pertinent for determination of Sharia Court of Appeal if it involves any question of Islamic Personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim. The dispute between the Appellant and the Respondent does not involve any of the matters I mentioned above. The Sharia Court of Appeal has therefore no jurisdiction to adjudicate on the dispute.”

In his contribution to the Judgment, this is what KARIBI – WHYTE, JSC had to say at page 653:

“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 personal law. The intention of the provision is to give it an unintended meaning.”

There may be the need to state here, that the dispute between the Appellant and the Respondent, has arise from contending claims between the duo on the question of ownership to a parcel of land, and there is no way this can be said to relate, involve or have the semblance of any questions of Islamic Personal Law regarding a wakf, gift, will or succession, more so when dispute rather has the characteristics of an action steeply grounded in criminal proceedings. If at all for any reasons, there is no way the offences of criminal trespass and mischief for which the Appellant stood trial at the lower Court can in any way be pitch-forked into any of the circumstances permitted under the provisions of Section 277(2) (a) – (e) of the Constitution of Nigeria, 1999 (as Amended). In this connection, see the case of Sarkin Kudu Mohammed Maidawa vs. Sarkin Dawaki Husaini (2000) 1 NWLR (PT. 665) 698; Garba vs. Dogon Yaro (1991) 1 NWLR (Pt. 165) 102; Maida vs. Modu (2000) 4 NWLR (PT 651) 99; Usman vs. Kareem (1995) NWLR (PT. 379) 537.

Against the backdrop of the numerous decisions of this Court and the Supreme Court on the question of the jurisdiction of the Sharia Court of Appeal as encapsulated in Section 277 of the Constitution of Nigeria, 1999 (as Amended) I hereby make bold to say that the Sharia Court of Appeal Zamfara State had no jurisdiction in the first place to have entertained; to have heard and to have determined this case. Consequently, this Appeal succeeds and it is accordingly allowed and the judgment of the lower Court, that is the Sharia Court of Appeal, Zamfara State, delivered on the 6-5-2013 in Appeal No: SCA/KN/H/2/2012 is hereby struck out. However, the Appeal against the correctness or otherwise of the judgment of the Upper Sharia Court, Kaura Namoda in case No.: CF/F1/35/2011 decided on the 4-1-2011 is hereby transferred to the Appellate Division of the Zamfara State High Court for determination. There are no orders as to cost.

MUKHTAR, JCA

I have had the privilege of reading in draft the leading judgment of my learned brother Frederick O. Oho, JCA in this appeal. I am in agreement with the entire reasoning and the conclusion reached therein, which I adopt as mine. The appeal is meritorious and is hereby allowed.

It is pertinent to reemphasized the limited jurisdiction of the Sharia Court of Appeal as defined under Section 277(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides thus:
“277(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the Law of the State, exercise such appellate and supervisory jurisdictions in Civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Sub-section (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 of dissolution of that marriage, or regarding family relationship, a founding or the guardianship of an infant.

c. Any question of Islamic Personal Law regarding a waqf, 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.”

This provisions is clear and devoid of ambiguity. An issue involving title to land is certainly extraneous to this provision. The claim in the instant case is predicated upon issue of title to land simpliciter.

The Sharia Court of Appeal clearly lacks jurisdiction to entertain this case because the claim is not rooted in Islamic Law. See the cases of Moore v. Tayee 2 WACA 43 at 45; Adesina v. Kola (1993) 6 NWLR (Pt.298) 182 at 200 and Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311.

Where a Court lacks jurisdiction in matter before it the entire proceedings including the judgment, no matter how well conducted or admirable it otherwise is, amounts to complete nullity.

For these and the more detailed reasons in the leading judgment, I allow the appeal and subscribe to the consequential orders in the judgment.

SHUAIBU, JCA

I have had the privilege of reading in draft the lead judgment delivered by my learned brother, Frederick O. Oho, JCA and have nothing to add except to emphasise in unequivocal terms that the jurisdiction of the Sharia Court of Appeal by virtue of Section 277 1(a) and (b) is confined and restricted to Islamic Personal Law. The subject matter of the instant appeal not being on Islamic Personal Law, it cannot exercise its jurisdiction. Thus, the appeal succeeds and it is accordingly allowed by me. I also abide by the consequential orders.