In The Court of Appeal

(Kaduna Judicial Division)

On Tuesday, the 24th day of February, 1998

Suit No: CA/K/22/S/96

Before Their Lordships

 Between

 And

OKUNOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal of Kaduna State delivered on 21/12/94 sitting in Zaria wherein the court allowed the appeal by the present respondent against the earlier decision of the trial Upper Area Court, Ikara.

The facts of this case briefly put were as follows: 

The claim of plaintiff/appellant before the trial Upper Area Court as per page 1 of the records was that she mortgaged a piece of farmland to the defendant/respondent at the sum of N300.00 and she prayed the court to recover the said farmland for her from the respondent and to order him to take back his N300.00 as mortgage fee. The defendant/respondent denied the plaintiffs claim and asserted that he purchased the farmland first from her father at thirty shillings but when she denied that sale, he re-purchased the same farmland from her at the cost of N300.00.

At the trial Upper Area Court both parties called witnesses and in the end the court entered judgment in favour of the plaintiff/appellant and ordered the defendant/respondent to return to the appellant the said farmland and take back his N300.00 mortgage fee. 

Dissatisfied with this decision of the Upper Area Court, the defendant/respondent appealed against the decision of the trial Upper Area Court upon (six) grounds of Appeal to the Kaduna State Sharia Court of Appeal. After going through the records of appeal and hearing the parties, the Sharia Court of Appeal,

Kaduna (hereinafter referred to as the SCA) allowed the appeal on grounds 1 & 6 but set aside grounds 2 - 5. It further gave oath to the defendant/respondent and finally set aside the judgment of the trial Upper Area Court and entered judgment in favour of the defendant/respondent. Dissatisfied with this judgment of the SCA, the plaintiff/appellant (hereinafter referred to as the appellant) appealed to this court on three grounds. From the 3 grounds of appeal, the appellant has formulated three issues for determination in this appeal, viz:

(1) Whether the Sharia Court of Appeal lacks jurisdiction to hear and determine the appeal having regards to the nature of the claim of the plaintiff at the trial Upper Area Court.

(2) Whether the Sharia Court of Appeal was right in rejecting and setting aside the evidence of the plaintiffs witnesses on an alleged contradiction with the plaintiffs claim.

(3) Whether the judgment given in favour of the respondent by the Sharia Court of Appeal is against the weight of evidence adduced before the trial court.

The learned counsel to the respondent also formulated two issues which but for framing and language used, boil down to the three issues raised by the appellant in the appellant's brief. Both counsel to the parties filed their respective briefs on behalf of their respective clients. Both learned counsel to the parties adopted these briefs and went further to address us viva voce to highlight some points. Learned counsel to the appellant Mr. B. Babaji adopted and relied on the appellant's brief deemed filed by order of this court made on 26/6/97. He also added the judgment of this panel on jurisdiction in the unreported appeal No. CA/K/2575/94 delivered on 27/1/77. He finally urged the court to allow the appeal.

By way of reply, learned counsel to the respondent Mr. L. Okere also adopted and relied on the respondent's brief deemed filed on 27/11/97. He submitted that he had nothing to add but urged the court to dismiss the appeal.

I shall now examine the submissions of both counsel to the parties vis-à-vis the records and the prevailing law. However, since jurisdiction is fundamental to adjudication, it is hoped to deal with issue No. 1 which centers on jurisdiction since the outcome of this issue will determine whether or not the other issues will be considered.

On issue 1 touching on the jurisdiction of the SCA to entertain the present appeal, learned counsel to the appellant submitted by way of summary at page 11 of the appellant's brief that the jurisdiction of the Sharia Court of Appeal is founded on S. 242 of the 1979 Constitution as amended and that from the issues canvassed before the trial Upper Area Court, Ikara there is no disagreement about the plaintiffs claim at the Upper Area Court, Ikara which centers on title to land Mortgage of land by the plaintiff to the defendant - which is outside the jurisdiction of the SCA. The SCA is only vested with jurisdiction to determine only question of Islamic personal law. See: Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377;

  (1992) 7 SCNJ (Pt.11) 388 P.400 and Garba v. Dongoyaro (1991) 1 NWLR (Pt.165) 102. Learned counsel referred to the claim at the trial Upper Area Court which is ownership of land and urged the court to remit the case to the High Court of Kaduna State for lack of jurisdiction. Thus on this issue, Mr. B Babaji for the appellant urged the court to allow the appeal.

By way of reply, learned counsel to the respondent, Mr. L Okere at pages 2 & 3 of the respondent's brief conceded that it is not in dispute that the defendant's action like that of the plaintiff/appellant before the Upper Area Court, Ikara relates to ownership of land. Learned counsel further referred to Usman v. Umaru (supra) (1992) 7 NWLR (Pt.254) 377 at 397-398 to say that the issue of whether the appellant mortgaged or sold the disputed land is one of Islamic law for which the SCA had jurisdiction.

I have considered the arguments of both counsel to the parties on this issue. 

It is my view that the plaintiffs claim (rather than the defendant's counter-claim) at the lower court that determines the jurisdiction of the court in a matter of this nature. See the Supreme Court decision on the issue in Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (Pt.117) 517; Engineer S.D. Yalaju-Amaye v. Associated Registered Engineering Contractors Ltd. & Ors. (1990) 6 SCNJ 149; (1990) 4 NWLR (Pt.145) 422. See: also Goni Umaru v. Gajere Dawa & Anor unreported decision of this panel in appeal No. CA/J/60/S/90 delivered on 11/2/91.In the light of the foregoing authorities, it is necessary to examine the claim of the plaintiff/appellant before the Upper Area Court, Ikara.

This can be found at page 1 lines 8-18 of the records which read thus:-

"I am suing Bazai Korau on a farmland belonging to my father. When he (i.e. my father) was leaving the town he collected thirty shillings from Bazai and later on when he left I mortgaged the farm to the said Bazai at the sum of N300.00. The farm is situate at Gubuci with the following demarcation. In the East, it borders Dan Kyasai; in the West cross a road it borders Bazai; in the South it has border with Dan Kyasai; and in the North with a tar. I know this is our farm which we mortgaged to Bazai but now he is claiming that it is not ours alleging that he had bought same. Accordingly I am praying to the court to allow me pay back the mortgage fee of N300.00 and retrieve the said farm for us."

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 Kaduna 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/325/85 delivered on 16/10/85; Abuja v. Bizi (1989) 5 NWLR (Pt.119) 120. See also Umaru Alhaji Garba v. Adamu Don-gon Yaro (1991) 1 NWLR (Pt.165) 102 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 or 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, Shari a 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 judgments in recent times. Thus, in H. Ahmadu Usman v. M. Sidi Umaru (1992) 7 SCNJ (Pt.11) 388; (1992) 7 NWLR (Pt. 254) 377 the court in its leading judgment per Ogundare, J.S.C at page 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. as he then was) 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/23/85 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.1 07 of 1993 which deleted the word "personal" after the word "Islamic" wherever it occurs in sections 217, 223(1), 226(a), 241 (3) and 242 of the 1979 Constitution. As if this was not explicit enough to show that the deletion of the word 'personal' after the word 'Islamic' in the above sections 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, the matter lies to the Sharia Court of Appeal." The cause of action in this appeal involves a gift and the donors are Moslems. Section 242(2)(c) 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 subsection (2) of that section.

Subsection (2)(c) of section 242 provides:

(2) For the purposes of subsection (1) of this section the Shari a 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 moslem."From the foregoing, the proper court to appeal against the decision of Grade II Area Court. Ilorin on a question of Islamic law relating to gift as in this case is the Sharia Court of Appeal, Kwara State". See also my recent decision in CA/J/113S/94 Ali Sugulma v. Mohammed Isabe delivered in Jos on 11/7/97.

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 Section. 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 lower 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.

I need to observe that the learned counsel to both parties further submitted that the parties at the Sharia Court of Appeal were not Muslims. Learned Counsel to the appellant at para. 4.06 of page 6 of the appellant's brief confirmed that his client was not a Muslim and also referred to the nature of oath taken by the respondent to confirm that he too is not a Muslim. Thus, at the last line of page 21 of the records the respondent said on being asked what he was swearing with?

"I am a pagan and I swear with blacksmith (MAKERA)"

From the non-Muslim nature of the parties as stipulated in S. 242 of the 1979 Constitution, Islamic Law is not applicable to them and the Sharia Court of Appeal lacks jurisdiction in personal matters relating to them. This issue had come for consideration and resolution by the Court of Appeal in various cases to the effect that the principles of Islamic law are not to be applied in Customary Court of Appeal. Nor are they applied to parties who are not Moslems. See Chiga v. Umaru (1986) 3 NWLR (Pt.29) 460 which was cited with approval in the recent case of Usman Ango v. Adamu Awawa (1998) 1NWLR (Pt.532) 146 P.154. Inconsequence, this factor further emphasizes the ousting of jurisdiction of the SCA on this issue of title to land particularly where it affects non-muslims.

In the result this appeal succeeds and it is allowed on the issue of jurisdiction. Consequently, the decision of the Kaduna State Sharia Court of Appeal delivered in Appeal No. KDS/SCA/1K/22S/94 on 21/12/94 is a nullity for lack of jurisdiction. It is accordingly set aside. This appeal is remitted back to the Kaduna State Chief Judge for determination by the State High Court in its appellate jurisdiction in the area of jurisdiction of this case. Parties to bear their own costs.

MUNTAKA-COOMASSIE, J.C.A.: I have had the priviledge of reading in draft, the lead judgment of my learned brother Okunola, J.C.A. I agree that the appellant's appeal should succeed and is hereby allowed.

There can be no doubt that the jurisdiction of the Sharia Court of Appeal throughout this country is still governed by the provisions of section 242(2) or the 1979 Constitution of the Federal Republic of Nigeria as amended. There are some legislative interpolations here and there from 1979, 1986. 1989 and 1993 but in my considered view the position remains the same.

The Supreme Court of recent knowing fully well of the existence of all the amendments of this country's Constitution including Decree No. 107 of 1993 decided that the provision of Section 242(2) of the 1979 Constitution as amended is the relevant provision to apply in respect of the jurisdiction of the Sharia Court of Appeal of the states. See Umaru v. Kareem (1996) 2 NWLR (Pt.379) P. 537 at 541.

Since in 1995 the Supreme Court held that the jurisdiction of a Sharia Court

of Appeal of a state is limited to the matters provided under section 242(2) a-c of the 1979 Constitution as amended despite the existence of Decree No. 107 of 1993 I will hold that any subsequent alterations, amendments and or deletions with regard to the provisions of section 242 of the 1979 Constitution did not add or subtract anything. Those alterations do not increase or enlarge the jurisdiction of the Shari a Court of Appeal of a state. See my contribution in Ali Sugulma v. Mohammed Isabe (supra).

In the result for the reasons I have given above in this my little contribution, and the fuller reasons in the lead judgment of Okunola, J.C.A. I would allow the appeal and order for the remittance of the appeal to the Borno State High Court for determination in its appellate jurisdiction. I make no order as to costs.

MUHAMMAD, J.C.A.: I read before now the lead judgment of my learned brother Okunola, J.C.A. I agree with him that the lower court lacked jurisdiction to hear and determine the appeal. I abide by all the consequential orders made in the lead judgment.

Appeal allowed

     Appearances