Muhammad Giwa V. Abdu Iri & Musa Cida (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL A. GALINJE, J.C.A. (Delivering The Leading Judgment)

This appeal is against the decision of Kebbi State Shariah Court of Appeal sitting at Birnin Kebbi, which was delivered on the 29th March, 2011. The Appellant herein claimed against the 1st and 2nd Respondents a farm land in the possession of the Respondents herein at the Upper Sharia Court Koko. At the end of the trial and in a reserved and considered judgment which was delivered on the 13/7/2010, the Appellant’s case was dismissed.

His appeal to the Shariah Court of Appeal, Kebbi was also dismissed as the Shariah Court of Appeal found no merit in the appeal. Being aggrieved with the decision of the Shariah Court of Appeal, the Appellant has again appealed to this court. His notice of appeal at pages 13 – 16 of the record of appeal, dated 3rd May, 2011 and filed on the 5th May 2011, contains three grounds of appeal. These grounds without their particulars read as follows:-

1. The learned Khadis of the court below erred in law when they confirmed the decision of the trial court when the trial court had no jurisdiction to entertain the claims of the appellant as a court of first instance and this has occasioned a miscarriage of justice.
2. The learned Khadis of the court below erred in law when they confirmed the decision of the trial court on the basis that the appellant failed to produce his witnesses and that the oath of rebuttal thereafter given to the Respondents justified the decision of the trial court and this has occasioned a miscarriage of justice.
3. The learned Khadis of the Shariah Court of Appeal Kebbi State erred in law and prejudiced the constitutional right of fair hearing of the appellant as enshrined in S. 36(1) of the constitution of the Federal Republic of Nigeria 1999 when it failed to consider all the grounds of appeal of the appellant and this has occasioned a miscarriage of justice.

Parties filed and exchanged briefs of argument. Appellant’s brief is dated and filed on the 4th of October 2012, but deemed filed on the 12th February 2013. At page 2 of the Appellant’s brief of argument, Mr. Ibrahim Abdullahi, Learned Counsel for the Appellant who also settled the Appellants’ brief of argument formulated two issues for determination of this appeal. These issues read as follows:-

“(a) Whether the Shariah Court of Appeal Kebbi State did not err in law and come to a wrong decision when it confirmed the decision of the trial court (Upper Shariah Court, Koko) when the said trial court did not have the requisite jurisdiction to entertain the claim before it.

(b) Whether the Shariah Court of Appeal did not err in law, came to a wrong decision and breached the Constitutional right of fair hearing of the Appellant when it dismissed the appeal of the Appellant.”

Issue one is said to be distilled from ground 1, while issue two is distilled from grounds 2 and 3. Mr. E. C. Oguelina, Learned Counsel for the Respondent adopted the issues formulated by the Appellant.

In arguing the 1st issue, Learned Counsel for the Appellant submitted that, by the name of the trial court which the appellant instituted his action, the Upper Shariah Court Koko is an appellate court as such it has no jurisdiction to hear the original claim of the Appellant. In a further argument Learned Counsel submitted that the trial court being an appellate court, can only exercise jurisdiction in respect of matters relating to appeals and such civil matters in the first instance as the Grand Khadi may confer on the trial court.

In aid Learned Counsel cited the authorities in Mai Shanu Vs Manu (2007) NWLR (Pt.1032) 42 at 44, Madukolu Vs Nkendilim (1962)2 SCNZR 34, Odofin Vs Agu (1992) 3 NWLR (Pt. 229) 350, Olowa Vs Nig. Army (2007) All FWLR (Pt 350)1298.

Finally Learned Counsel submitted that the Shariah Court of Appeal was in error when it confirmed the judgment of the trial court which did not have requisite jurisdiction to entertain the claim of the Appellant.

I am totally amused by the argument of the Learned Counsel for the Appellant, who has clearly displayed his ignorance in the area of how court’s jurisdiction is acquired. I entirely agree with the submission of Mr. E. C. Oguelina, Learned Counsel for the Respondent who submitted that courts are creatures of statutes, and that those enabling statutes that create them spell out their jurisdiction. I have never known that courts’ jurisdictions are determined by the names of the various courts in the country. Even this court that is called ‘Court of Appeal’ has original jurisdiction in Presidential Election Petition donated to it by the Constitution of the Federal Republic of Nigeria 1999. The Kebbi State Upper Shariah Court is a creature of Kebbi State Shariah (Administration of Justice) Law, 2000. Section 4(1) of the said law provides as follows:-

“For the purpose of administration of Shariah law in the State, there are hereby established in the state the following courts:-

a. The Shariah Court; and

b. The Upper Sharia Court