Fidelis Mustapha V. Alh. Abdulmumini Mohammed & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Justice, Bauchi State in the exercise of its appellate jurisdiction. It was delivered on the 21st day of June, 2002. On the 11th June 2002 the Respondents as Applicants in the lower court filed a motion before that Court challenging the jurisdiction of the lower court to hear the Appellant’s appeal.

The motion was hinged on the fact that the High Court had no Jurisdiction to hear the appeal as the subject matter of the said appeal borders on Islamic personal law, and jurisdiction in respect thereto has been exclusively conferred on the Sharia Court of Appeal in accordance with section 277 (2) (c) of the 1999 Constitution of the Federal Republic of Nigeria.

The High Court however, heard the motion and proceeded to dismiss the matter in its entirety and hence this appeal

The brief facts of the case are that the 1st Respondent sued the Appellant at the Doya Area Court, Bauchi over a house located at Igbo quarters Bauchi, which belonged to one Hajiya Maman Bala. The contention of the 1st Respondent was that the late Hajiya Maman Bala died as a Muslim and was childless, leaving behind only brothers. That the claim before the Court was for distribution of her estate by way of inheritance. The Appellant’s contention on the other hand was that while alive, the late Hajiya Maman Bala had given the house in dispute to him by way of gift and that he had with him all the necessary documents duly executed while she was alive.

The trial Area Court heard the case and declared that the house of late Hajiya Maman Bala is subject to inheritance under Islamic law. Dissatisfied with the decision of the Area Court, the appellant herein appealed against same to the Upper Area Court 1, Bauchi.

The Upper Area Court 1, Bauchi heard the appeal and affirmed the decision of the trial Area Court. The Appellant was aggrieved by the decision of the Upper Area Court, Bauchi and as such the Appellant further appealed against same to the High Court of Justice, Bauchi.

While the appeal was pending in the High Court, the Respondents Counsel filed a motion dated the 11th June, 2001 praying for an order striking out or dismissing the appeal for want of jurisdiction on the ground that the subject matter of the appeal borders on matters of gift and succession which is within the exclusive jurisdiction of the Sharia Court of Appeal.

The High Court however, took arguments on the motion dated 11th June, 2001 and on 21st June, 2001 delivered its ruling in favour of the applicant and also proceeded to dismiss the main appeal.

Dissatisfied with the decision of the High Court, sitting on appeal, the Appellant then lodged a notice and grounds of appeal against its decision to this Court.

The Appellant in its brief of argument formulated the following issues for determination.

a. Whether the learned justices of the Court below were right when they dismissed the appeal of the Appellant before them on ground of lack of jurisdiction.

b. Whether the decision of the learned justices dismissing the Appellant’s appeal pursuant to an interlocutory motion does not amount to violation of the Appellant’s right of hearing on the main appeal.

c. Whether the learned justices of the Court below were right to have relied on the evidence of PW1 and PWII (Respondent’s witnesses) at the trial Court to give their decision date 21st June, 2001.