SALIHU ALIYU BABA
ALHAJI BALA ZAKARI
ABUBAKAR PATTI YAHAYA. JCA: The judgment of the High Court of Niger State Minna, in Suit No. NSHC/MN/29/2008, was delivered on the 31/3/2010, and this appeal is against that decision.
The respondent in this appeal, was the plaintiff at the trial High Court, whilst the appellant herein, was the defendant/counterclaimant The plaintiff took out of the High Court of Niger State, Minna, the Writ of Summons -
"(a) a Declaration that the plaintiff is entitled to the Right of Occupancy over the disputed property House No- N.W. 74 Limawa, Minna, evidenced by Certificate of Occupancy No. 9621.
(b) a Declaration that the purported distribution of the disputed property to the defendant and his co-heirs by Hon. Salisu Dogara (Judge) in NULL and VOID and of
no legal effect.
(c) an Order of perpetual injunction restraining the defendant and his co-heirs or any one claiming through him or both of them from trespassing into and or disturbing plaintiffs quiet and peaceful enjoyment of the property in dispute.
(d) cost of litigation."
The defendant disputed the claim, and so filed a Statement of Defence and also counter-claimed for "title over the property,"
At the trial, the plaintiff called four witnesses and tendered 2 exhibits. The defendant called four witnesses also. At conclusion, the trial court entered judgment for the plaintiff, It granted the two reliefs sought and also a perpetual injunction restraining the defendant and his co-heirs or anyone claiming through them, from trespassing or disturbing the peaceful enjoyment of the plaintiff, of the disputed property.
It is important to note that the plaintiff was claiming the disputed house to belong to his late father. The defendant was also claiming the disputed property to belong to his late father. Infact, the defendant filed a Suit before the Upper Sharia Court, Minna, against the plaintiff, in August 2007, for a declaration of title but the Suit was struck out on the 30/10/2007, on the ground of want of jurisdiction. It was after the Suit was struck out, that the defendant as plaintiff, approached the same Upper Sharia Court and before the same judge who had earlier struck out the case, to share the same disputed house to them in inheritance, as heirs of their late father, and the Upper Sharia Court did just that.
The plaintiff at the lower court was not satisfied with the action of the Upper Sharia Court Minna. Instead of appealing, he went and instituted a fresh action at the trial court, claiming the reliefs set out earlier in this judgment. Judgment was entered for him. The defendant being dissatisfied with the outcome, has appealed to this Court.
The appellant's brief, settled by Ndagi Musa of counsel, was filed on the 11th of February 2011. In it, he distilled three issues for determination. They are: -
(i) Whether the lower court had jurisdiction to adjudicate over this matter (Ground No. 1)
(ii) Whether the lower court was right when it held that the respondent proved his title to the disputed property. (Ground 5).
(iii) Whether the lower court properly appraised the evidence before it. (Grounds 2, 3, 4&6).
The respondent's brief filed on the 18th of March 2011, was settled by his counsel Mr. I. M. Ndamitso, wherein the three issues distilled are
(1) Whether the respondent's claim at the trial court relates to the issue of Islamic personal law, as to rob the trial court's jurisdiction to hear and entertain this suit (Ground 1).
(2) Whether on the balance of probabilities, it was the appellant and not the respondent who proved a better title to , the disputed land (Ground 3, 4, 5 and 6).
(3) Whether the lower court properly evaluated evidence before it. Ground 2
The appellant also filed a Reply brief on the 25th of March, 2011.
Having gone through the Issues identified by both parties, I find them very similar. I adopt the issues identified by the appellant in resolving this appeal.
Whether the lower Court had jurisdiction to adjudicate over this matter.
In his submission on this Issue, learned counsel for the appellant referred to paragraph 17 (b) of the statement of claim, the evidence of the plaintiff himself as PW3, and the declaration made by the trial court, to argue that the trial court had no jurisdiction to entertain the Suit He opined, on the authorities of FEDERAL GOVERNMENT OF NIGERIA VS. OSHIOMHOLE (2004) 25 WRN 50 and KADZI LTD. VS. KANO TANNERY CO. LTD. (2004) 12 WRN 131 that it is from the Writ and the Statement of claim, that a jurisdiction of the court is determined, in addition to the Constitution and Statute creating the court -DALHATU VS. TURAKI (2003) 42 WRN 15 and MOMODU VS. STATE (2008) 28 WRN 24. He referred to section 277 of the 1999 Constitution as granting jurisdiction to the Sharia Court of Appeal in matters of Islamic personal law - marriage, gift, will, succession or distribution of property or estate. He quoted the decision of this Court in USMAN VS. ALABI (2005) 23 WNR 187, Learned counsel also submitted, relying on N.A.A.C VS. ECONET WIRELESS LA (2006) 37 WRN 120, that three conditions must exist, before a court can have the jurisdiction to entertain a Suit and once there is a feature in it which prevents the court from exercising its jurisdiction, then it must decline to so do. He pointed to the claim for declaration, that the distribution of the disputed property by the Upper Sharia Court Minna as null and void, as a feature preventing the trial court, from assuming jurisdiction over the case; as only the Sharia Court of Appeal could properly exercise that jurisdiction. He urged us to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent on this Issue, submitted that it is the claim of the plaintiff that determines the jurisdiction of the court, and the claim of the plaintiff is the aggregate of facts which delineates and constitutes the subject matter in a Suit, and which consequently, gives rise to the nature of the prayer the plaintiff would seek. He argued that in this instant, there is no fact in the entire statement of claim, that is within the ambit of Islamic personal law, as the plaintiff did not pray for distribution of the property in dispute, and did not, also assert that the disputed property is a subject of gift, wakf, will or succession as contemplated by section 277(2) of the 1999 Constitution. He argued further, that none of the evidence of the witnesses who testified at the trial, points to that direction. Also argued, is that the prayers of the plaintiff at the trial court, are clear, to convince the court that the plaintiff's claims have nothing to do with Islamic personal law. He referred to findings of the trial court at page 96, lines 13 - 23.
Counsel for the respondent submitted that the dispute between the parties is ownership of the disputed property, and nothing more- The respondent as plaintiff, was praying for the resolution of the issue of ownership by seeking for a declaration that he is entitled to the right of occupancy over the disputed property, and once he gets that declaration, then the consequential order would be the nullification of any rights over the proper by any person.
This, he said, informed the need for the relief in paragraph 17 (b) of the statement of claim. He urged us to hold that the trial court therefore, had jurisdiction to entertain the Suit.
Now, jurisdiction, connotes the legal authority or power a court possess, to adjudicate and decide over a given matter before it, once other conditions necessary, are present.
It is trite, that when the Constitution or a Statute or both, clothe a court with jurisdiction to entertain a matter, the Court should, especially when called upon to so do, determine whether it has such jurisdiction, by also perusing the Writ of Summons and the Statement of Claim, or the Originating Summons, depending upon the mode of commencement of the action. If it is of the opinion that it has the jurisdiction, then it will proceed. If on the other hand, the claims show otherwise, then the court must decline jurisdiction. See DALHATU VS. SARAKI (SUPRA) and AHMED VS. AHMED (2013) 15 NWLR (Pt. 1377) 274. The reason is clear. Jurisdiction is a threshold issue and so a court must have jurisdiction in order to be able to determine the case presented to it. That is why once an issue of jurisdiction is raised, it must be considered and resolved by the court. See BALOGUN VS. PANALPINA WORLD TRANSPORT (NIG) LTD. 1999 1 NWLR (Pt 585) 66. It is so important, that it can be raised even for the first time at the Supreme Court.
In order to determine whether a court is competent and has jurisdiction to determine a matter, it must be established that-
1. it is properly constituted as regards numbers and qualification of the members of the bench and that none of these members is disqualified for any reason;
2. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents it from exercising its jurisdiction; and
3. the case was initiated by due process of law and upon fulfillment of any condition
precedent to the exercise of jurisdiction.
See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587
When any of these conditions is absent, then a court must not adjudicate over the matter, and if it does, the entire proceedings would be a nullity, no matter how beautiful, correct or sound the decision is. See SKEN CONSULT (NIG) LTD. VS. UKEY (1981) 1 S.C 6 at 26 and YANE VS. NUAKU (1995) 5 NWLR (Pt. 394) 129,
Section 277(2)(c) of the 1999 Constitution, gives the Sharia Court of Appeal of a 5tate power to exercise appellate and supervisory jurisdiction in civil proceedings involving
"any question of Islamic Personal law regarding a wakf, gift, will or succession where the endower, donor, testator, or deceased person is a muslim."
Relief No. 2 (paragraph 17 of the statement of claim) is for a Declaration that the purported distribution of the disputed property to the defendant and his co-heirs by the Upper Sharia Court judge, is Null and Void and of no legal effect. Clearly, the Upper Sharia Court judge applied the principles of Islamic law of succession, since he divided the property to co-heirs, which is what obtains in Islamic personal law. It is therefore not correct, as learned counsel for the respondent had submitted, in the brief, that "from the statement of claim.....none of the facts in the entire statement of claim suggest that the plaintiff's claim is within the ambit of Islamic personal law." It was clearly and directly based on Islamic personal law of succession as contemplated by section 277(2)(c) of the 1999 Constitution. It may be true, that the plaintiff "did not approach the trial court to distribute the property in dispute," but he certainly approached the trial court to declare the distribution of the home in dispute "to the defendant and his co-heirs" as null and void. This was a question of Islamic law on succession and is within section 277(2) (c) of the 1999 Constitution.
Again, the learned counsel for the respondent, had in the respondent's brief, submitted that-
"In the same vein, none of the evidence of the witnesses that testified at the trial court, point to that direction." i.e., that the action at the trial court, was not a subject of succession as contemplated by section 277(2) of the 1999 Constitution,
It is baffling, that this submission was made, when the record of appeal clearly evidences the position. At page 25 of the record of appeal, the plaintiff as PW3 was giving evidence. Lines' 21-22 clearly state-
"I am suing because of the manner of the sharing of inheritance in respect of our father's house."
This is clear evidence, that the plaintiff was challenging the distribution of the house in dispute to the defendant and his co-heirs, by the Upper Sharia Court, in accordance with Islamic personal law. It is thus an Islamic personal law matter under challenge, bringing it within the purview of section 277(2(c) of the 1999 Constitution.
At page 33 of the record, lines 7-8, the plaintiff said
"I want the court to confirm me and my brothers as the legal heirs of my father's property."
It is Islamic personal law that would determine who the heirs of a deceased person are and how the estate would be shared. In this vein, he was not therefore just raising a dispute between the parties as to ownership of the disputed property "and nothing more" as submitted by counsel for the respondent. He brought the issue of sharing the disputed property into contemplation. I have gone to this length, in order to correct the erroneous submission of counsel regarding the contents of the statement of claim and the evidence. In other words, it is not the evidence, that has circumscribed the jurisdiction of the trial court. I pointed them out just to show that the submission of the counsel for the respondent regarding evidence, is not correct, The relevant material that would establish the jurisdiction of the trial court, is the statement of claim and I have shown above, that the statement of claim, had indeed raised the issue of Islamic personal law as contemplated by section 277(2)(c) of the 1999 Constitution - issue of succession. Relief No 2 is on Islamic Personal Law, which by virtue of section 277(2)(c) of the 1999 Constitution, the trial High Court had no jurisdiction to entertain. This is a feature in the case which has prevented the trial High Court from adjudicating over the case even if it had jurisdiction on declaration of title to the disputed property. Even this issue cannot be correctly asserted, in view of the decision of this Court in USMAN VS. ALABI (Supra).
It was therefore wrong for the trial High Court to have assumed jurisdiction over the case and to have decided it. It infact went ahead to grant the relief in the following manner -
It is further DECLARED that the distribution of the disputed property to the Defendant and his co-heirs by Hon. I Salisu Dogara (Judge) is null and void and of no effect."
In other words, the trial court, was not simply stating that the property shared, belonged to the plaintiff. No. It clearly and categorically declared the distribution of the disputed property as null and void, thus setting aside a matter decided under Islamic Personal Law when it has no jurisdiction whatsoever, to sit on appeal over the decision of the Upper Sharia Court on matters of Islamic personal law - distribution of inheritance property. This has also opened up another vista. Is there jurisdiction in a Court, to set aside the decision of another court when there has not been an appeal filed? Further, the decision itself was not tendered before the court. It was a judicial decision since the respondent was served with a criminal summons for obstructing
the court in its duty.
Whatever, the decision of the trial High Court, declaring as null and void the decision of the Upper Sharia Court judge, on Islamic personal law, to wit, distribution of an estate to the heirs, is without jurisdiction. It is hereby set aside. Under Islamic law, it is the court charged with the responsibility of sharing the estate of a deceased person, that must first and foremost, ascertain the estate - whether it belongs to the deceased or not, before it even ascertains the heirs and to distribute. The entire proceedings in Suit No. NSHC/MN/29/2008, are hereby declared a nullity and set aside. Issue No. 1 is thus resolved in favour of the appellant and against the respondent. One must say that a lot of industry and hard work are evident in the judgment of the trial court, but the respondent had gone to the wrong forum.
In view of this decision and the fact that there is the strong possibility of a litigation in another forum, it would be prejudicial, to resolve Issues 2 and 3 as they touch on the merit of the case. Issues 2 and 3 are therefore hereby struck out.
In the final analysis, this appeal succeeds and it is allowed. The judgment of the trial court delivered on the 31/3/2010, and the entire proceedings are hereby set aside. It is for the parties to seek the appropriate forum.
I make no Order as to costs.
TANI YUSUF HASSAN, (JCA): I had the opportunity of reading the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.
I agree with the entire reasoning and conclusion therein. I also allow the appeal and abide by the order made.
JOSEPH E. EKANEM, JCA: I had the privilege of reading in draft the judgment which has just been delivered by my learned brother A. D. Yahaya, JCA. I agree with the reasoning and conclusion therein especially that the trial High court had no jurisdiction to declare the distribution of the disputed property by the Upper Sharia Court null and void, and of no effect. In doing so, the trial court was in essence sitting on appeal over the decision of the Upper Sharia Court which jurisdiction is vested in the Sharia Court of Appeal by virtue of Section 277 of the Constitution.
It is for the above reason and the more comprehensive reasons set out in the lead judgment that I also allow the appeal and abide by the consequential orders made therein,
Ndagi Musa for the Appellant.
Respondent served on Phone on 29/2/16. Absent.