Sarki Makada Ibrahim V. Dije Muhammadu & Anor. (1998)

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MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the judgment of the Kaduna State Sharia Court of Appeal in which the decision of the Upper Area Court Zaria was set aside and that of trial Area Court No.3 Sabon Gari Zaria was restored.

I think it will be of a considerable clarity in further elucidation of the real issues involved in this appeal for the purposes of tracing the genesis of this case from the trial court.

The plaintiffs were Dije Muhammadu Danladi and 8 others. They instituted that action against the defendant at Area Court No.3 Sabon Gari Zaria for that court to cause the estate of Dije’s deceased husband to be distributed among his lawful and surviving heirs. The estate, however, is a house situate at Kofar Fada Zaria City. Judgment was given in favour of the plaintiffs and against the defendant. The latter was said not to be entitled to any share. The house in dispute was auctioned and third party purchased same from the court and the proceeds shared among the heirs.

On appeal to the Upper Area Court, through a letter from Inspectorates Division of the Kaduna State High Court, the Upper Area Court held that the Sabon Gari Area Court tried the matter without jurisdiction. Based on this, and other defects in the proceedings in the trial court, the learned Upper Area Court Judge, as he then was, allowed the appeal and ordered for a retrial before another Area Court within Zaria city where the house in dispute is situated.

Dissatisfied with the above decision the plaintiffs – Dije Muhammadu and Dije Ali (both females) appealed to the Shari” Court of Appeal who sat in Zaria.

It is interesting to note that during the evaluation of the records of proceedings of the trial court and the inspectorate’s letter the Upper Area Court remarked that the trial court ignored certain correspondents between Zazzau Emirate council and the trial court on the fact that the house in dispute or the so called estate of the deceased to be shared was in fact not deceased estate. It belongs to the Zaria Emirate Council.

On appeal to the Sharia Court of Appeal hereinafter referred to as court below judgment was entered in favour of the plaintiffs, respondents herein. Appeal was allowed and judgment of the trial Area Court restored in its entirety.

The defendant herein appellant aggrieved by the decision of the court below appealed to this court on one ground attacking the jurisdiction of the Sharia Court of Appeal Kaduna State. The sale ground read thus…

The appellant, through his counsel Mr. J.B. Daudu SAN, urged on us to set aside the decision of the court below and that of the trial Area Court on the ground that both courts lacked jurisdiction to entertain same. He insisted that the judgment and orders of the court below in this matter are a nullity.

On the orders of this court under the rules of this court the appellant through his counsel filed an appellant’s brief which was duly served on the respondents. The latter chose not to file any brief. On the hearing date learned counsel for the appellant relied and adopted their brief.

In the appellant’s brief one issue was submitted for the consideration of the appeal by this court, namely:-

“Whether in the light of the Area Courts law, 1968(sic) the Area courts jurisdiction Notice 1977 and the decisions of the Supreme court in Matari & Ors. V. Dan-Galadima & Anor. (1993) 3 NWLR (Pt.281) 266, the Area Court No.3 Sabon Gari Zaria has jurisdiction to determine a dispute in Zaria city which is clearly outside its jurisdiction?”

It is obviously pertinent to observe that since the respondents herein decided voluntarily to refrain from filling the respondents’ brief to counter the issue or issues raised in the appellant’s brief he will be deemed as adopting the issues formulated by the appellant. The law, with respect was succinctly stated by my Lord Karibi-Whyte J.S.C. in Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391 at 421-422 in effect that