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Ganya v. Maza

JIMRI GANYA

V

DUDU MAZA

COURT OF APPEAL

( SOKOTO DIVISION )

TIJJANI ABDULLAHI JCA ( Presided )

TUNDE OYEBANJI AWOTOYE JCA

JAMES SHEHU ABIRIYI JCA ( Read the Lead Judgment )

CA/S/8S/2010

MONDAY, 25 MARCH 2013

APPEAL - Sharia Court of Appeal - Matters on which has jurisdiction -  Ownership of land - Matter related to - Exclusion of therefrom -  1999 Constitution, section 277 considered

APPEAL - Upper Sharia Court - Appeal from - Whether can lie to Court of Appeal

COURT - Customary/Sharia Courts - Rules of procedure in superior court - Non-bindingness of by - Proceedings of - Proper approach to consideration of

COURT - Sharia Court of Appeal - Matters on which has jurisdiction -  Ownership of land - Matter related to - Exclusion of therefrom -  1999 Constitution, section 277 considered

EVIDENCE - Customary/Sharia Courts - Rules of procedure in superior court - Non-bindingness of by - Proceedings of - Proper approach to consideration of

JURISDICTION - Issue of - Fundamental nature of - Lack of - Effect of - When may be raised - Determinant of

JURISDICTION - Sharia Court of Appeal - Matters on which has jurisdiction - Ownership of land - Matter related to - Exclusion of therefrom - 1999 Constitution, section 277 considered

LAND LAW - Sharia Court of Appeal - Matters on which has jurisdiction -  Ownership of land - Matter related to - Exclusion of therefrom -  1999 Constitution, section 277 considered

PRACTICE AND PROCEDURE - Customary/Sharia Courts - Rules of procedure in superior court - Non-bindingness of by Proceedings of - Proper approach to consideration of

STATUTE - 1999 Constitution, section 277 - Sharia Court of Appeal Matters on which has jurisdiction - Ownership of land - Matter related to - Exclusion of therefrom

Issue:

Whether the claim of the respondent/plaintiff before the trial court affects any issue of Islamic Personal Law, which empowered the lower court to competently entertain the appeal from the decision of the trial court.

Facts:

The respondent was the plaintiff in the Upper Sharia Court, Kebbi State. She claimed that the land in dispute belonged to her late father who had loaned it to the defendant, now appellant. She further claimed that when she demanded for the return of the land, the appellant refused, laying claim to ownership of the land. She prayed the court for a return of the land. The trial court granted respondent’s claims. Not satisfied, the appellant appealed to the Sharia Court of Appeal where the decision of the trial court was affirmed. Not yet satisfied, the appellant filed an appeal to the Court of Appeal. He contended that the lower court erred by affirming the decision of the trial court on grounds that the lower court lacked jurisdiction to hear an appeal on claim for declaration of title to land which had nothing to do with Islamic Personal Law and that the decision of the trial court was wrong, the court having failed to satisfy itself that it had jurisdiction to determine an issue between non-muslims. The respondent filed a preliminary objection to the appeal.

In determining the appeal, the Court of Appeal considered the following statute:

Constitution of the Federal Republic of Nigeria, 1999, section 277

“(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the court is competent to decide in accordance with the provisions of subsection (2) of this section.

(2)        For the purposes of subsection (1) of this section, the Sharia

Court of Appeal shall be competent to decide;

  1. 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;

  1. Where all the parties to the proceeding are muslims, any question of Islamic Personal Law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
  2. Any question of Islamic Personal Law regarding a waif, gift, will or succession where the endower, donor, testator or deceased person is a muslim;
  3. Any question of Islamic law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm; or
  4. Where all the parties to the proceedings, being muslims, 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.”