Alhaji Hassan Abuja V. Lawan Gana Bizi (1988)

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UTHMAN MOHAMMED, J.C.A.

In the Brief of Argument filed by the appellant for the prosecution of this appeal, his counsel formulated the following issues for the determination of the appeal:

(1) Whether the Borno State Sharia Court of Appeal has jurisdiction to entertain an appeal in respect of contract of sale as at 22/5/84 even though Islamic Law of contract was applied.

(2) If it has jurisdiction to so entertain the appeal, whether it was proper to interfere with the decision of the Upper Area Court Nguru, the trial court in view of the weight of evidence before the trial court.

The first question for determination of this appeal which I have reproduced above touches the issue of jurisdiction of the Sharia Court of Appeal to determine the matter in dispute between the parties in this appeal. It is pertinent, therefore, to refer to the claim filed by the respondent, before the Upper Area Court, Nguru, against the appellant. The case is a representative action in which Mallam Jawi Mohammed, Mai Jawa and Babale jointly sued Alhaji Hassan Abuja on behalf of MaHam Lawan Gana, seeking for the revocation of a sale of land. The statement of claim is as follows:-

“I, Jawi Mohammed, Mai Jawa and Babale are instituting this action against Alhaji Hassan Abuja on behalf of Mallam Lawan Gana.

The reason why we decided to sue him is that we are claiming the plot in dispute which originally belonged to Baleri. Later M. Lawan Gana bought it from him in November, 1982 for N2,000.00. It is Certificate of Occupancy No.005202 dated 23rd December, 1982, Registration No. 323, holding NG/AREA/170, all of them bear the name Baleri.

When one looks at the statement of claim reproduced above, one is bound to conclude that the issue in dispute between the parties does not fall within the definition of Islamic Personal Law as has been provided in S.242 of the Constitution of the Federal Republic of Nigeria, 1979. The subject matter which the parties litigated before the Nguru Upper Area Court is in respect of contract of sale of a plot of land. The learned counsel for the appellants, Ahmed Al Mustapha, submitted before us that on the 22nd of May, 1984, when the Borno State Sharia Court of Appeal disposed of the case in hand the jurisdiction of the Sharia Court of Appeal was confined to matters specified in Section 242 of 1979 Constitution, as amended by Constitution Suspension and Modification Decree, 1984. Counsel further submmitted that even though there is a recent amendment on the jurisdiction of the Sharia Court of Appeal by the Constitution (Suspension and Modification) Amendment Decree, 1986, No. 26, the said amendment is not retrospective and does not therefore affect the position of the law as at 22/5/84. Counsel then referred to a judgment of this court: Mallam Ado & Anor v. Hajiya Dije (1984) 5 N.L.R. 260, and submitted that the case being one based on a contract of sale, is not within the purview of the provision of S.242 of the Constitution.

In reply to the appellant’s submission on the issue of jurisdiction, the learned counsel for the respondent submitted in the respondent’s Brief of Argument that the appellant’s submission purporting to oust the jurisdiction of the Sharia Court of Appeal, as is contained in his ground of appeal is untenable. Counsel referred to S.242(2)(e) of the Constitution and argued that a careful study of that provision would readily incorporate into the jurisdiction of the Sharia Court of such other matters not enumerated under S.242(2), provided that the parties have requested that such matters be determined in accordance with Islamic Law. The respondent’s counsel further submitted that since both parties in this case are moslems and have taken their dispute to an Upper Area Court which to their knowledge is presided over by a Moslem Judge, and in which the law applicable is substantially Islamic Law, then no other conclusion can be arrived at other than the fact that the parties had intended, requested and in fact, did submit themselves to the application of Islamic Law in the determination of their dispute. The learned counsel finally submitted that the Sharia Court of Appeal had jurisdiction to try the dispute arising out of a contract of sale.

May I explain, before going deeper into this judgment that this court had made several decisions in the past, in respect of appeals coming here, the subject matter of which was a dispute between respective parties, in those cases and which were not within the definition of Islamic Personal Law, as outlined in S.242 of the 1979 Constitution.

We have held in those decisions that the Sharia Court of Appeal has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law regardless of the fact that the parties signed form AC9 or not. One of those decisions is the case of Mallam Ado and Anor. v. Hajiya Dije (1984) 5 N.C.L.R. 260 at 267 30 which the learned counsel for the appellant cited in the appellant’s brief. See also the case of Umaru Fannami v Bukai Sarki, Appeal No.CA/I/16/84 (Unreported) and Alhaji Mudi Liman v. Alhaji Maiwadan Gaga, Appeal No. FCA/K/110s/80 (Unreported).

It is still pertinent, however, and in view of the recent promulgation of the Constitution (Suspension and Modification) (Amendment) Decree, No. 26 of 1986, to explain more about the ouster of jurisdiction of the Sharia Court of Appeal to determine any matter which is outside its jurisdiction as outlined in the Constitution under S.242.

The items enumerated in S.242 of the Constitution have been lifted out from Section 11 of the Sharia Court of Appeal Law Cap. 122 of Northern Nigerian Laws, applicable to Borno State. See also Section 2 of the Sharia Court of Appeal-Law. If one goes through the provision of that Section of the Sharia Court of Appeal Law, one can quickly establish that what has been provided in S. 242 of the 1979 Constitution and defined as Islamic Personal Law is not an Innovation perfected by those who drafted the Constitution. Those items form the correct list of what is called Islamic Law of Personal Status. There may be one or two items not listed if we compare the definition of Islamic Personal Laws of other Moslem countries.

In the book of Islamic Law of Personal Status, written by Jamal J. Nasir, who was at one time a member of the Federal Supreme Court of Nigeria and a former Minister of the Kingdom of Jordan, it was held by the learned author that the first definition of Islamic Law of Personal Status was given by the Egyptian Court of Cassation on 21st June, 1934, in an appeal No.40J, as follows:-