Safiya Korau V. Bazai Korau (1998)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Sharia Court of Appeal of Kaduna State delivered on 21/12/94 sitting in Zaria wherein the court allowed the appeal by the present respondent against the earlier decision of the trial Upper Area Court, Ikara.

The facts of this case briefly put were as follows:

The claim of plaintiff/appellant before the trial Upper Area Court as per page 1 of the records was that she mortgaged a piece of farmland to the defendant/respondent at the sum of N300.00 and she prayed the court to recover the said farmland for her from the respondent and to order him to take back his N300.00 as mortgage fee. The defendant/respondent denied the plaintiffs claim and asserted that he purchased the farmland first from her father at thirty shillings but when she denied that sale, he re-purchased the same farmland from her at the cost of N300.00.

At the trial Upper Area Court both parties called witnesses and in the end the court entered judgment in favour of the plaintiff/appellant and ordered the defendant/respondent to return to the appellant the said farmland and take back his N300.00 mortgage fee.

Dissatisfied with this decision of the Upper Area Court, the defendant/respondent appealed against the decision of the trial Upper Area Court upon (six) grounds of Appeal to the Kaduna State Sharia Court of Appeal. After going through the records of appeal and hearing the parties, the Sharia Court of Appeal,

Kaduna (hereinafter referred to as the SCA) allowed the appeal on grounds 1 & 6 but set aside grounds 2 – 5. It further gave oath to the defendant/respondent and finally set aside the judgment of the trial Upper Area Court and entered judgment in favour of the defendant/respondent. Dissatisfied with this judgment of the SCA, the plaintiff/appellant (hereinafter referred to as the appellant) appealed to this court on three grounds. From the 3 grounds of appeal, the appellant has formulated three issues for determination in this appeal, viz:

(1) Whether the Sharia Court of Appeal lacks jurisdiction to hear and determine the appeal having regards to the nature of the claim of the plaintiff at the trial Upper Area Court.

(2) Whether the Sharia Court of Appeal was right in rejecting and setting aside the evidence of the plaintiffs witnesses on an alleged contradiction with the plaintiffs claim.

(3) Whether the judgment given in favour of the respondent by the Sharia Court of Appeal is against the weight of evidence adduced before the trial court.

The learned counsel to the respondent also formulated two issues which but for framing and language used, boil down to the three issues raised by the appellant in the appellant’s brief. Both counsel to the parties filed their respective briefs on behalf of their respective clients. Both learned counsel to the parties adopted these briefs and went further to address us viva voce to highlight some points. Learned counsel to the appellant Mr. B. Babaji adopted and relied on the appellant’s brief deemed filed by order of this court made on 26/6/97. He also added the judgment of this panel on jurisdiction in the unreported appeal No. CA/K/2575/94 delivered on 27/1/77. He finally urged the court to allow the appeal.

By way of reply, learned counsel to the respondent Mr. L. Okere also adopted and relied on the respondent’s brief deemed filed on 27/11/97. He submitted that he had nothing to add but urged the court to dismiss the appeal.

I shall now examine the submissions of both counsel to the parties vis-a-vis the records and the prevailing law. However, since jurisdiction is fundamental to adjudication, it is hoped to deal with issue No. 1 which centers on jurisdiction since the outcome of this issue will determine whether or not the other issues will be considered.

On issue 1 touching on the jurisdiction of the SCA to entertain the present appeal, learned counsel to the appellant submitted by way of summary at page 11 of the appellant’s brief that the jurisdiction of the Sharia Court of Appeal is founded on S. 242 of the 1979 Constitution as amended and that from the issues canvassed before the trial Upper Area Court, Ikara there is no disagreement about the plaintiffs claim at the Upper Area Court, Ikara which centers on title to land Mortgage of land by the plaintiff to the defendant – which is outside the jurisdiction of the SCA. The SCA is only vested with jurisdiction to determine only question of Islamic personal law. See: Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377;