Faruk Ali Salim & Ors v. Absussalam Bin Alua & Ors (2024) LLJR-CA

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

USMAN ALHAJI MUSALE, JCA (Delivering the leading judgment)

The appellants filed this appeal challenging the decision of the High Court of Kano State, CORAM: Honourable Chief Judge Nura Sagir Umar, delivered on the 5th day of December, 2019 in suit No. K/M293/2018.

The crux of this matter is that the appellants herein approached the Upper Sharia Court, Bompai, sitting at Yankaba, Kano as plaintiffs.

They had requested the Upper Sharia Court to set aside the transaction of sale of house between the 1st, 2nd and 3rd respondents herein, who were defendants at the Upper Sharia Court. The plaintiffs and the 1st and 2nd defendants inherited a house located at Ibrahim Taiwo Road, Kano from their grandparents. The 1st and 2nd defendants sold their portion of the house to the 3rd defendant.

The plaintiffs alleged in their suit that they had the intention of buying the portions sold by the 1st and 2nd defendants to the 3rd defendant, due to the fact that, they know they have the right of pre-emption guaranteed by law. That the house shouldnt have been sold out to a third party without their knowledge.

The plaintiffs now sought to set aside and vitiate the said house transaction. During hearing, the witnesses of the plaintiffs testified amongst other things, that the house had not been distributed to the legal heirs.

However, the 3rd defendant challenged the jurisdiction of the Upper Sharia Court, but the Court ruled that it had jurisdiction since the case was based on pre-emptive right in Islamic law. The Upper Sharia Court also nullified the sale. The court also affirmed the joint ownership between the 1st and 2nd defendants with the plaintiffs and allowed the plaintiffs to compensate the 3rd defendant with the purchase price.

The defendants were not satisfied with what the Upper Sharia Court did. They therefore, filed an application before the High Court of Kano State, seeking for an order to quash the judgment of the Upper Sharia Court, Bompai Kano, delivered on 13th October, 2016.

The plaintiffs at the Upper Sharia Court, filed a counter affidavit in opposition to the application, contending amongst other things, that the Upper Sharia Court has jurisdiction to entertain the matter since it was one based on pre-emptive right and not on title to land. In its ruling, the High Court held in favour of the applicants who were defendants at the Upper Sharia Court, Bompai when it stated thus:

“To my mind, since the jurisdiction of the lower Upper Sharia Court has been extinguished by section 39(1)(a) of the Land Use Act , which is a Federal Act that states that only the High Court has exclusive jurisdiction to entertain land matters in urban areas of the federation then by necessary implication, Shufah or preemption right of the respondent has also been extinguished and seizes to have effect or potency, having said that, the judgment of the Upper Sharia Court, Bompai, Kano, delivered on the 13th of October, 2016 in the suit, by Mal. Abubakar Haruna Kalil between Faruk Ali Salam & 4 Ors. v. Abdussalam Bin Alua & 2 Ors is set aside for want of jurisdiction.”

Dissatisfied with the decision of the High Court, the respondents/appellants per their amended notice of appeal that was deemed properly filed on 30/05/2022 raised six grounds of appeal with particulars. The compiled record of appeal was equally deemed transmitted on 30/05/2022. The learned senior counsel to the appellants Prof. Nasiru Adamu Aliyu, SAN filed brief on 6/07/2022 wherein he donated four issues to determine the appeal viz;

1. Whether the learned trial Judge was right when he disregarded the provision of section 277(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and subjected it to the provision of section 39(1)(a) of the Land Use Act, and held that its (Land Use Act) provision extinguished the right of Shufah (pre-emption) under Islamic Law. (Distilled from ground 2).
2. Whether the learned trial Judge was right when his lordship failed to follow the superior courts cases cited, including the cases of Alkamawa v. Bello (1998) 8 NWLR (Pt. 561) 173 at page 180 paras. A-B & pages 180-181 paras H-A, and Raha v. Ige (2017) LPELR-43916 (CA). (Distilled from grounds 3 & 4).
3. Whether the learned trial Judge was right when he held that since the jurisdiction of the lower court Sharia Court has been extinguished by section 39(1) of the Land Use Act, which is a Federal Act that states that only the state High Court has exclusive original jurisdiction to entertain land matters in urban area of the federation, then by necessary implication, the shufah or pre-emption right of the respondent has also been extinguished and seizes to have effect or potency. (Distilled from ground 1).
4. Whether the lower court has the requisite jurisdiction to hear and determine application for the judicial review without the respondents first seeking and obtaining the leave of the court, and filing of the affidavit of service stating names, addresses and the places, and date of service on all persons served with notice of motion or summons in respect of the application for judicial review. (Distilled from grounds 5 & 6).

On the part of the 1st 3rd respondents, Jamilu Ahmed Ungogo Esq. of learned counsel filed brief of argument on 10/01/2024, wherein he distilled two issues for the determination of the appeal as follows;

1. Whether the lower court (High Court) was right in quashing the decision of the trial lower court (Upper Sharia Court Bompai, Kano) for want of jurisdiction.
2. Whether the trial lower court (Upper Sharia Court Bompai, Kano) was right when it failed to join (Tasaf General Merchandise Ltd) being the buyer and the necessary party.

In determining this appeal, issues raised by the appellants will be taken in mind.

Argument on 1st issue