Alhaji Usman Magaji V. Maidorowa Matari (2000)
LAWGLOBAL HUB Lead Judgment Report
B. WALI, J.S.C.
Following the order for a retrial made by the Sharia Court of Appeal Bauchi in 1986, the plaintiff Maidorowa Matari lodged the following complaint in the Nabardo Area Court against the defendant Alhaji Usman Magaji –
“I sued (sic) the defendant about the farm land I inherited from my late father (called Zaranda), which the defendant took to use with the assertion that it is his own. And this is land that has been cultivated long ago by my parents, then how could the defendant a stranger as he is could claim its ownership just of a sudden”
The defendant Alhaji Usman Magaji denied the plaintiff’s claim with the assertion that he inherited the farmland in dispute from his father, Magaji.
The learned trial Judge after hearing evidence called by the plaintiff and the defendant in proof of their respective claims, visited the farmland in dispute in company of the parties and their witnesses and decided as follows:-
“In my opinion since the plaintiff was able to produced five tentative male witnesses who confirmed it before this court that the disputed property (farm land) is his father’s own and that the defendant’s father only possessed it by way of manipulation (Hauzi). This court hold the view that whenever there is ownership, possession will have no position in sharia, no matter whatever longer period stood. Therefore considering all the facts stated above I hereby confirmed the subject matter of this case (farm land) to the plaintiff since it was known to be his late father’s property. This is in accordance with Tuhfa vol. 11 page 172.”
Dissatisfied with the trial court’s judgment, the defendant Alhaji Usman Magaji appealed to the Upper Area court Toro which allowed the appeal on ground that the same case was litigated upon between one Mangai (described as senior brother to the plaintiff) and Alhaji Usman Magaji, the defendant, in CVA/215/72 of 25/2/72 wherein the Upper Area Court Bauchi affirmed the decision of Nabardo Area Court in Suit No. 345/70 in favour of the defendant. The Toro Upper Area Court therefore struck out the case.
Aggrieved by the decision and order of the Upper Area Court Toro, the plaintiff appealed to the Sharia Court of Appeal, Bauchi which unanimously dismissed the appeal and affirmed the judgment of Toro Upper Area Court, opining as follows:-
“……………. in our opinion the two complainants Mangai and Maidorowa the appellant in this case are just like a single person as regard to this matter. As such all they can do is to appeal against the decision of UAC Bauchi on its case No. CVA/215/72 of 25/2/72 which was an appeal the court heard against the decision of Nabardo A/C. This is because, that judgment delivered by UAC Bauchi is still effective.”
The plaintiff then appealed to the Court of Appeal, Jos Division. The Court of Appeal in its unanimous judgment came to the conclusion that both the Upper Area Court Bauchi and the Sharia Court of Appeal, Bauchi were wrong in their conclusions that the judgment of Nabardo Area Court in Suit No. 345/70 between Mangai v. Usman Magaji which was subsequently affirmed by the Upper Area Court Bauchi and the Sharia Court of Appeal Bauchi respectively operate as res judicata against the plaintiff. The Court of Appeal also came to the conclusion that the decision of Nabardo Area Court in which it granted the farmland in dispute to the plaintiff is correct and it was restored.
The defendant Alhaji Usman Magaji has now appealed to this court.
Learned counsel representing respective parties filed and exchanged briefs of argument. Henceforth the plaintiff and the defendant will be referred to in this judgment as respondent and appellant respectively.
The appellant in his brief formulated 7 issues for determination by this court, to wit-
“1. Whether or not the Court of Appeal was wrong in holding that the defence of res judicata cannot avail the Appellant / Defendant herein
- Whether or not the Court of Appeal was wrong in holding that the Sharia Court of Appeal had jurisdiction to hear the Appeal before it having regard to S. 242 of the 1979 Constitution as amended
- Whether, having regard to the provisions of ORDER 27 RULE 3(1) and (2) of the Area Courts (civil Procedure) Rules 1971, the proceedings and judgments of the Upper Area Court, Toro, Sharia Court of Appeal, Bauchi, and the Court of Appeal, Jos, are not a nullity, having been based upon unauthentic proceedings and judgment of trial Area Court, Nabardo
- Whether or not the Court of Appeal, Jos, as well as the Sharia Court of Appeal, Bauchi were duly constituted for the purpose of Hearing this Appeal and if answered in the negative, whether or not the decision of the Court of Appeal and the Sharia Court of Appeal are a nullity
- Whether or not the decision of the Court of appeal has determined the issues before it in this Appeal either way and whether the decision is a valid judgment.
- Whether or not there was a valid Appeal in this case before the Court of Appeal
- Whether or not the Court of Appeal was wrong in holding that the rule contained in the Islamic Law Principle of Hauzi is inapplicable to this Appeal.”
The respondent similarly raised 7 issues in his brief which are quoted below as follows:-
“1. Whether or not the Court of Appeal was right in law in holding that the defence of res-judicata (sic) could not avail the present appellant as held by the Upper Area Court Toro and the Sharia Court of Appeal, in the circumstances of this case
- Whether or not the Court of Appeal was right in law in holding that the Sharia Court of Appeal had jurisdiction to entertain the appeal before it having regard to section 242 of the 1979 constitution as amended
- Whether or not by the provisions of order 27 Rule 3(1) and (2) of the Area Court’s Civil Procedure Rules 1972, the proceedings and judgments of the Upper Area Court Toro, the Sharia Court of Appeal Bauchi, and the Court of Appeal Jos are valid, having been based on the records of the proceedings and judgments of the trial area court Nabardo certified and produced before this court
- Whether or not the constitution of the Court of Appeal, and the Sharia Court of Appeal Bauchi were proper in law for the purposes of the hearing and determination of the appeals lodged before the courts, and in law the validity nullity or otherwise of the court’s decisions and judgments
- Whether or not the decision and judgments of the Honourable Justice of the Court of Appeal Jos in this appeal are valid and proper in law
- Whether or not there was valid appeal to the Court of Appeal and as heard and determined by the Court of Appeal
- Whether or not the Court of Appeal was right in holding the inapplicability of Islamic law principle of Hauzi, having regard to the evidence and circumstances of this case”
The simple facts in this case are that each party is claiming to have inherited the land in dispute from his father. Can it then be said that the case comes within the ambit of section 242(2) of the 1979 Constitution which provides that –
“S. 242(2) For the purposes of Subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –
(a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;
(b) where all the parties to the proceedings are Moslems, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guardianship of an infant;
(c) any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Moslem;
(d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Moslem or the maintenance or guardianship of a Moslem who is physically or mentally infirm; or
(e) where all the parties to the proceedings (whether or not they are Moslems) have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.”
This takes me to the consideration of Issue 2 of the appellant’s and the respondent’s briefs of Argument respectively that deal with the jurisdiction of the Sharia court of Appeal that entertained the appeal from the appellate Upper Area Court, Toro.
It was the submission of learned counsel for the appellant that the subject matter before the trial court was not for sharing out inheritance under section 242 (2) (c) of the 1979 Constitution and therefore not within the jurisdiction of the Sharia Court of Appeal. He contended that the Issue before the trial court was a dispute over ownership of the land in dispute and not one of Islamic Personal Law as enumerated in subsection (2) of S. 242 (supra), and in support, cited and relied on Abuja v. Bizi (1989) NWLR (pt. 119) 120.
In answer to the above submissions, it was the contention of learned counsel for the respondent that “the claim before the trial court bordered on inheritance, and as inheritable title to the land under Islamic law, the trial court’s proceedings and judgment also reflected the application of Islamic law”. He submitted that the Sharia Court of Appeal has jurisdiction over the matter under section 242(2) (c) and (e) of the 1979 Constitution. He further submitted that the case of Abuja v. Bizi (supra) cited and relied on by learned counsel for the appellant was not apposite and urged that the appeal be dismissed.
Section 242(2) of the 1979 constitution confines Sharia Court of Appeal to what has been termed in that section as ‘Islamic Personal Law’, in other words Islamic law of personal status. Looking at the facts involved in this case, the dispute cannot fit in any of the matters listed in s. 242(2) of the Constitution. It is neither a case for a claim of inheritance, nor that of a gift, a Wakf or a Will. It is simply a case involving ownership of the piece of land in dispute between the contending parties. It is therefore a misconception by learned counsel for the respondent to say that the dispute involves question of inheritance “within the contemplation and provisions of section 242(2) (c) and (e) which was being withheld from the Respondent and his privies.” The case of Abuja v. Bizi (supra) is quite apposite and applicable. The fact that it was alleged that the parties signed Form CA9, would not confer jurisdiction on the Sharia Court of Appeal since the matter did not involve Islamic Personal Law as stated in section 242(2) (e) of the Constitution. In the case supra, Uthman Mohammed, JCA (as he then was) in his lead judgment to which both Maidama and Aikama JJCA subscribed, emphasized the law as follows at page 267 –
“The Sharia Court of Appeal under 1979 Constitution 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 CA9 or, not; Mallam Ado & Anor. v. Hajiya Dije (1984) 5 N.C.L.R. 260 at 267.”
The provision of section 242(2) has been severally interpreted by the Court of Appeal in several of its decisions and many of which are yet to find their way to the Law Reports. Some of these cases were cited and relied upon by the Court of Appeal in Abuja v. Bizi (supra) to wit: Umaru Fannami v. Bukai Sarki (Appeal No. CA/J/16/84) and Alhaji Mudi Limai v. Alhaji Maiwadan Goga (Appeal No. FCA/IL/1105/80), both un-reported.
There have been several futile attempts to amend section 242(2) supra to enlarge the jurisdiction of the Sharia Court of Appeal, particularly by the Constitution (Suspension and Modification) (Amendment) Decree No. 26 of 1986. In considering this Decree Uthman Mohammed JCA (as he then was) in Abuja v. Bizi (supra) commented and stated as follows and rightly too in my view –
“The anomaly which the Kadis wanted the Government to correct is to stop the division of cases determined by the Area Courts into those determined under Islamic Personal Law and others. Thus, all appeals from the decision of the Area Courts, where Islamic Law and Procedure is involved could be made part of their jurisdiction. The Constitutional Amendment, however, failed to enhance the jurisdiction of the Sharia Court of Appeal because it left the original jurisdiction of the Court under S. 242 intact. Thus, even though the Constitution (Suspension and Modification) (Amendment) Decree No. 26 of 1986 provided for the deletion of the word “personal” wherever it occurs after the word “Islamic” in the Constitution, it left untouched the specific jurisdiction of the Sharia Court of Appeal. In other words, the jurisdiction of the Sharia Court of Appeal remains limited to those items enumerated under S. 242(2) (a)(b)(c) and (d) of the Constitution.”
The Court of Appeal is therefore manifestly wrong in its conclusion on this issue of jurisdiction when it opined thus –
“It is clear that since the plaintiff’s father Zaranda is now deceased he was claiming the farm land as part of item of inheritance under Islamic personal law since they are both Moslems. It must be either a dispute over any heritable estate which any person withholds away from the heirs or a dispute over the right to make a particular property within the estate in contemplation of Section 242 (2) (c) and (e) of 1979 Constitution. See Garba vs. Dogonyaro (1991) 1 NLR (Part 165) page 107 at all P. 111 paragraphs C-F per Okunola JCA.”
The consideration of this issue on jurisdiction having succeeded, is enough to settle this appeal without considering the remaining Issues raised.
The appeal succeeds and it is allowed. The judgment of the Court of Appeal is set aside and that of the Sharia Court of appeal Bauchi is hereby declared a nullity for want of jurisdiction. The appeal against the judgment of the Upper Area Court, Toro dated 21/3/88 is hereby transferred to the appellate division of High Court Bauchi State, for hearing. N10,000.00 costs is awarded to the appellant.
SC.136/1994