CORAM

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Muhammed Lawal Shuaibu Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Ahmed Ramat Mohammed Justice of the Court of Appeal

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PARTIES

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ISAH BABAYO

APPELLANTS 

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LADI UMARU

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, JURISDICTION, SHARIA LAW, ISLAMIC PERSONAL LAW, LAND LAW, PROPERTY LAW, APPEAL, PRACTICE AND PROCEDURE, APPELLATE JURISDICTION, RECORD OF PROCEEDINGS, EVIDENCE

 

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SUMMARY OF FACTS

The Respondent, Ladi Umaru, commenced a civil suit at the Area Court, Dukku against the Appellant, Isah Babayo, seeking a declaration of title to farmland which she claimed belonged to her late father. According to the Respondent, her father Umaru had leased the farmland to the Appellant before he died 12 years ago, but the Appellant now claimed to have purchased it.

The Appellant denied liability. At the end of the trial, judgment was entered against the Respondent at the Area Court, Dukku on 19th August 2017. The Respondent’s appeal to the Upper Area Court I, Gombe was dismissed on 15th January 2018.

On further appeal to the Sharia Court of Appeal, Gombe, the concurrent judgments of both the Area Court, Dukku and Upper Area Court I, Gombe were set aside on 10th December 2018. The Sharia Court of Appeal stated that it was satisfied with the grounds of appeal and set aside the decisions of both lower courts. Additionally, the Sharia Court of Appeal affirmed “the decision of the Jamari Area Court dated 4th August, 2017 for justice to prevail.”

Dissatisfied with this decision, the Appellant filed an appeal to the Court of Appeal on 24th December 2018. The Appellant raised two main issues: (1) whether the Sharia Court of Appeal had jurisdiction over a matter concerning declaration of title to land, and (2) whether the lower court was correct to have imported a record from Jamari Area Court that did not form part of the appeal before it.

The Court of Appeal found that the Sharia Court of Appeal lacked jurisdiction to hear the matter since declaration of title to land does not fall within Islamic Personal Law, which is the constitutional limit of Sharia Court of Appeal jurisdiction. The court also found that the Sharia Court of Appeal improperly considered proceedings from Jamari Area Court without those proceedings being part of the record of appeal before it.

 

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HELD

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1. The appeal was allowed and the judgment of the Sharia Court of Appeal was set aside for want of requisite jurisdictional competence.

2. The Court held that the Sharia Court of Appeal lacks jurisdiction over matters concerning declaration of title to land, as such matters do not fall within the scope of Islamic Personal Law as defined by Section 277(1) and (2) of the Constitution.

3. The Court found that the Sharia Court of Appeal improperly considered and relied upon proceedings from Jamari Area Court which did not form part of the record of appeal before it.

4. The Court emphasized that appellate courts are restricted to records and grounds of appeal placed before them and cannot manufacture evidence or deal with records not brought before them.

 

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ISSUES

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1.Whether the Sharia Court of Appeal has jurisdiction over a matter of declaration to land?

2. Whether the lower Court was correct to have imported a record that does not form part of the appeal?

 

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RATIONES DECIDENDI

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SHARIA COURT OF APPEAL JURISDICTION – LIMITATION TO ISLAMIC PERSONAL LAW

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There is no gainsaying the fact that Sharia Court of Appeal is a creation of the 1999 Constitution as a specialized Court with limited jurisdiction. By virtue of Section 277(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), 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 the Section. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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TYPES OF JURISDICTION – PROCEDURAL VERSUS SUBSTANTIVE

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General speaking, there are two types of jurisdiction namely (a). Jurisdiction as a matter of procedural law; and (b). Jurisdiction as a matter of substantive law. A litigant may subject to the procedural jurisdiction, cannot confer jurisdiction on a Court where the Constitution or statute or any provision by the common law says that the Court does not have jurisdiction. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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DETERMINANT OF COURT’S JURISDICTION – PLAINTIFF’S CLAIM NOT DEFENDANT’S DEFENSE

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It is also settled that the determinant of Court’s jurisdiction is the claim of the plaintiff rather than the defense of the defendant. Therefore, in ascertaining the jurisdiction of the Court, it is generally the claim in the writ of summons or the statement of claim that is looked into to see whether or not the Court seized of the matter has the requisite jurisdiction over the parties or the subject matter of the dispute. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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REQUIREMENTS FOR VALID EXERCISE OF JURISDICTION

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The law is also trite that a Court can only exercise jurisdiction when: – (a) it is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or the other. (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 fulfillment of any condition precedence to the exercise of jurisdiction.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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LAND TITLE DISPUTES – OUTSIDE SHARIA COURT JURISDICTION

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The claim of the Respondent at the Trial Area Court being declaration of title to farmland does not fall within the purview of Islamic Personal Law. It was held in plethora of cases that issue of title or ownership of land does not form part of the question falling within the jurisdictional competence of the Sharia Court of Appeal. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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DECIDING MATTERS IN THE ALTERNATIVE – JURISDICTIONAL SAFETY NET

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Whereas in the instant case, a Court lacks jurisdiction to hear and entertain a matter, the Court has no business delving into the merits of the matter because the exercise will be in in futility. However, Courts below the Supreme Court will not be wrong to take the merits of the matter in the alternative. The practice is useful in the event that the Court wrongly ruled that it had no jurisdiction when it had. Thus, a decision in the alternative will stop the procedure of sending the case back to the Court to hear the matter because it has jurisdiction. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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APPELLATE COURT LIMITATION – RESTRICTION TO RECORD OF APPEAL

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It is instructive to note that an appeal is a rehearing and therefore the appellate Court is entitled to look at anything contained in the record of appeal before it in order to arrive at the just decision of the appeal. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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IMPROPER CONSIDERATION OF EXTERNAL RECORDS – MISCARRIAGE OF JUSTICE

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The question that need to be answered here is, on what basis or what is the rationale of the above findings in the absence of the relevant record of the Jamari Area Court? Lest I forget, the appeal before the lower Court was the decision of the Upper Area Court Gombe, not Area Court, Jamari. I cannot but agree with the submission of counsel to the Appellant that in the absence of competent appeal before the lower Court, embodying the proceedings of Jamari Area Court, it cannot consider or even make pronouncement in respect of such proceedings. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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EFFECT OF DECIDING WITHOUT PROPER RECORD

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Any such decision by the lower Court without the vital processes will occasioned a miscarriage of Justice. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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SHARIA COURT AS CONSTITUTIONAL CREATION – LIMITED JURISDICTION

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I have stated that the lower Court, that is, Sharia Court of Appeal is a constitutional creation by Section 275(1) and its jurisdiction is contained in Section 277(1)and(2),(a)–(e) of the 1999 Constitution aforesaid, which is confined and restricted to matters pertaining to Islamic Personal Law.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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JURISDICTIONAL OBJECTIONS – TIMING AND MANNER OF RAISING

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He submit that the objection to jurisdiction of Court can be taken at any time, depending on what materials are available. He relied on the authority in the case of Petro-Jessica Enterprises Limited V. Leventis Technical Company Limited (1992) 5 NWLR (PRT 244) 675 to the effect that since it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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NATURE OF APPELLATE COURT JURISDICTION

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Appellate Courts, by their nature and jurisdiction, inclusive of the lower Court, are restricted to records and grounds of appeal placed before them. Thus, the lower Court is only confined with appellate and supervisory jurisdiction and no more. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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SETTING ASIDE FOR WANT OF JURISDICTION

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On the whole, the appeal succeeds per force and it is hereby allowed. Consequently, Appeal No. GMSJ/SCA/CVA/GM/04/2018 before the lower Court is accordingly set aside for want of the requisite jurisdictional competence. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Area Courts Procedure Rules

 

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