Alhaji Ila Alkamawa V. Alhaji Hassan Bello & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

ABUBAKAR BASHIR WALI, J.S.C.

The appellant as plaintiff complained before Area Court Grade 1C sitting in Sokoto town as follows:

“I Magaji Ila Alkamawa, I am suing Hassan Bello

Magajin Rafi Sokoto because I am holding his

father’s house Magajin Rafi Bello who loaned it to

The house has been in my hand for more than

eight years and I am a neighbour to the house from

the east west and south, Magajin Rafi is now dead.

The defendant Hassan came to me and told me that

they wanted to sell the house. I then told him that

I want to buy the house. Already the house has

been put to market as I said that after obtaining its

market price which is accepted to him. I will pay

the money. It was later after five days I heard from

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him that the house was sold at the cost of

N26,000.00. Infact, the wall of my own house

where I formerly lived is linked to the said house.

So also some of my properties including my sheep,

motor spare parts and drums and kept in that

house. That is why I sued him so that the Court will

investigate the matter because I am entitled to buy

the house.”

In compliance with Islamic procedural law, the facts

above as stated by the plaintiff were put to the

defendant Hassan Bello Magajin Rafin Sokoto who

replied:

“I have heard the complaint but I am not aware

that my father gave him the house to hold; also,

I am not aware that there are his properties in

that house. In the name of Allah I even don’t know

his house. It is also true that I sold the house to

Alhaji Malami Yabo at the rate of N26,000.00 and

he paid me. I know that I usually meet him near to

the said house and when entering in the house he

follows me.

When the house is to be sold, I sent Mu’azu to go

and call Alhaji Ila. When Ila met me in my house I

told him that I want to sell the house, does he want

to buy it He said he does. We then arranged that

he should go and find some people who are

knowledgeable in pricing houses to come and

estimate the value of the house. Later he sent

Nasiru to me that the house has been priced as

follows: N18,000.00; N19.00.00 and N20,000.00.

Although I have already decided to sell the house

at the cost or N30,000.00. I then said that he

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should be informed that we shall sell the house at

the cost or N30.000.00 what has he got to say He

replied that the house is too costly for him let them

go if somebody buys it, let him be informed. So and

hearing this and to my understanding, presumed

that he does not want to buy. This is because if

there is an outstanding bargain you cannot

negotiate another with somebody that is why I sold

the house to Alhaji Malami Yaro, that is all I have

to say’”

At this stage it appears Alhaji Malami Yaro was

brought in by the Court as co-defendant, and when

the claim of the plaintiff and the reply to it were

read to him by the court, he replied:

“I have heard and it is true that I bought that

house at the cost of N26,000.00 and l paid the

money. That is all I have to say.”

The plaintiff was called upon to prove his case

which, from the statements of both the plaintiff and

the defendant is “Shufa” that is the right of

pre-emption as a next-door neighbour to the house

sold by the defendant to Alhaji Malami Yaro. The

plaintiff called Atto, Abubakar Sarkin Gida, Buda,

Alu, Maishinkafa as witnesses. These witnesses

gave evidence that the plaintiff was a next-door

neighbour to the house in dispute and same was

entrusted to him by its owner later Magajin Rafi

Bello and up to the latter’s death. He had been

looking after the house, storing therein some of his

properties, including empty drums and motor spare

parts for the past eight years.

The learned trial Area Court Judge considered and

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accepted the evidence adduced by the plaintiff and

concluded:

“With regard to what happened before this Court.

Therefore I ordered the sale as valid that which

took place between Alhaji Malami Yaro and Alhaji

Hassan.

I ordered Alhaji Ila to pay Alhaji Malami Yaro his

money N26,000.00, after he paid N26,000.00 I

confirmed the house to him from there East to

North – 98ft 2 inches. West to East 72ft 3 inches,

South to North 99ft 10 inches from East to West

73ft.”

Against this judgment Alhaji Hassan Bello and

Alhaji Malami Yaro as defendants appealed to the

High Court, Sokoto in its appellate jurisdiction.

The High Court, after hearing the parties to the

appeal before it allowed that appeal, giving its

reasons as follows:

“1. Non-identity of the subject matter in dispute

contrary to the provision of Rule 1 of the Area

Court (Civil Procedure) (Amendment) Rules. 1980.

Learned trial Judge descended into the arena of

litigation by providing the missing linking evidence

of the location and boundaries of the subject matter

contrary to Rule 5 of the Area Court (Civil

Procedure) (Amendment) Rules 1969.

None of the witnesses called were cross-

examined.”

The decision of the trial Area Court was set aside

by the High Court and in its place an order for a

retrial was substituted.

The plaintiff as appellant and the defendants as

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cross-appellants appealed to the Court of Appeal,

Kaduna Division, against the decision and order

made by the High Court Sokoto in its appellate

capacity. In the Court of Appeal both the appellant

and the cross-appellants filed and exchanged briefs

of argument.

After a careful consideration or the briefs and the

oral arguments presented for and against the

appeal and the cross-appeal, the Court of Appeal in

its unanimous judgment came to the following

conclusions among others:

“The right of Shufa becomes null and void when it

is abandoned voluntarily [Ikhtiyar]

xxxxxxxxxxxxxxxx Applying this principle to the

case in hand, it can be seen that the 1st

respondent gave the first option to his neighbour

the appellant herein. When the price was fixed, the

appellant advised the 1st respondent to go the

market overt and see if he would get a buyer and if

he gets one he should come back to him and he

would then pay the offered price.

By this condition imposed by the appellant, after he

has been given the 1st option to purchase, the

appellant has waived or abandoned his right. This is

because he has allowed the 1st respondent to go to

the market overt. This waiver renders the

appellant’s right null and void and I so hold. In the

circumstance the trial Area Court was in error when

it nullified the sale made by the 1st respondent to

the 2nd respondent when the right of pre-emption

of the appellant had become null and void. The

Court should have confirmed the said sale made to

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the 2nd respondent and not otherwise.”

The Court of Appeal allowed the appeal of the

appellant and upheld the cross appeal of the 1st

and 2nd respondents/cross-appellants. The

judgment of the High Court, Sokoto silting in its

appellate jurisdiction was set aside and in place

thereof’, the court of Appeal judgment concluded:

“I substitute our judgment which reverses that of

the Area Court Grade 1C Sokoto, whereby the sale

of the house in dispute by the 1st respondent to

the 2nd respondent is accordingly affirmed. The

cross appeal also succeeds.”

Dissatisfied with judgment of the Court of Appeal

Alhaji Ila Alkamawa, the plaintiff and also appellant

in that Court further appealed to this Court. In

compliance with rules of this court learned Counsel

for the parties filed and exchanged briefs of

argument. Henceforth the plaintiff and the

defendants shall be referred to as the appellant and

respondents respectively.

The simple facts of this case are as follows:

The appellant is a next door neighbour to the house

in dispute which house was owned by late Magajin

Rafi Sakata Bello and during the latter’s life time

he entrusted the same to the appellant to take care

On the death of Magajin Rafi Bello the house in

dispute became part of his estate. The 1st

respondent, Hassan Bello and as one of the heirs to

late Magajin Rafi Bello agreed with the other

remaining heirs to sell the house in dispute. 1st

respondent approached the 1st appellant and

offered the sale of the house to him at a price of

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N30,000.00 which he declined by saying that the

price was too high for him. Thereafter the 1st

respondent sold the house to Alhaji Malami Yaro for

N26,000.00. It was after the sale that the appellant

instituted an action in the Area Court Grade 1C

claiming to repurchase the house on the same price

it was sold to the 2nd respondent by exercising his

right of “Shufa”. i. e. pre-emption, as a next door

neighbour.

As I said earlier both parties filed and exchanged

briefs. In the appellant’s brief the following two

issues were raised:

“(1) Can the appellant be said to have waived or

abandoned his right of Shufa under Islamic law

having regard to the evidence before the trial

court.”

(2) Can the sale of the property in dispute by the

1st respondent to the 2nd respondent be affirmed

in accordance with Islamic law having regard to the

facts of the case.”

In the brief filed by the respondents three issues

were formulated as follows:

“(i) Whether the appellant has locus standi to

institute the action. Even if the 1st issue were in

the affirmative, having regard to the grounds of

appeal,………

(ii) Whether the appeal is competent without

obtaining the leave of either the Court below or this

honourable Court;

(iii) Whether the Court of Appeal was right in

holding that the appellant has waived or abandoned

his right of Shufa having regard to the

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circumstance of this case.”

On 24/3/98 when the appeal came up for hearing

the preliminary objection filed by learned Counsel

for the respondents on 20/10/93 attacking the

locus Standi of the appellant and the competence of

the grounds of appeal was withdrawn and it was

struck out. With the withdrawal and striking out of

the preliminary objection, issues (i) and (ii) in the

respondent’s brief have become equally

incompetent and are hereby accordingly struck out.

The remaining issue (iii) is covered by issue 1 of

the appellant’s brief. So in deciding this appeal I

will adopt the two issues formulated in the

appellant’s brief, which I consider adequate for its

disposal.

The two issues raised in the appellant’s brief can be

merged into one and be re-formulated as follows:

“The appellant having admitted being a next door

neighbour to the house in dispute, has he any right

of pre-emption [Shufa] to repurchase the house in

dispute from the 2nd respondent on the same price

compulsorily under the relevant and applicable

Islamic law”

It is the submission of learned Counsel for the

appellant that the appellant, being the next door

neighbour to the house in dispute has the right of

first option to purchase the same under the

doctrine of Shufa i. e. pre-emption as enshrined in

Islamic law. He contended that, where the property

is sold without the neighbour’s permission, the

neighbour can trace the property to the third party

and pre-empt it, and that under Maliki law the

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period within which the pre-emptor can exercise

the right is fixed at one year from the lime the

right accrues. He submitted that in the

circumstance of this case the appellant expressed in

good time his intention to purchase the property

and could not therefore be said to have waived or

abandoned his right of pre-emption (Shufa),

learned Counsel quoted and relied on the Hadith as

reported in Bukhari that:

“O Prophet of Allah I have two neighbours. Which

one of the two shall I sell the share first The

prophet replied to the neighbour whose door is

nearer to your door.”

In reply learned Counsel to the respondent

submitted that the 1st respondent offered the

house in dispute for sale to the appellant to which

the latter gave a conditional acceptance and made

a lower offer below what the 1st respondent was

demanding. He said it was as a result of the

equivocal stand by the appellant that the 1st

respondent sold the house to the 2nd respondent

for N26,000.00. He submitted that the appellant by

his equivocal stand in the transaction was deemed

to have waived his right of pre-emption (Shufa) to

purchase the property as the next door neighbour

to it. He urged the appeal to be dismissed.

The word Shuf’ah or pre-emption is defined in

Ruxton-Maliki Law as follows:

“Pre-emption is the right by which a co-owner in

immovable property may redeem from a stranger,

in consideration of compensating him, that part of

the property which has been sold to him by another

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of the co-owners.”

It is not disputed that the appellant is the

next-door neighbour to the house in dispute. Both

parties know the identity and the location of the

house being litigated upon.

So its identity is a non-issue. The question to be

asked and answered is:

Under the applicable principle of Islamic law does

the appellant as a next door neighbour to the

house in dispute possess the right of pre-emption

over its purchase In other words, can the

appellant compulsorily re-purchase the house in

dispute from the 2nd respondent who is a stranger

by refunding the same price he paid for it

In Sahihul Bukhari vol. 3 page 165 paragraph 2257

the law is stated as follows:

“Allah’s Apostle [P.B.] gave judgment on the right

of pre-emption for partners in property which has

not been divided up. When boundaries had been

fixed between them, then there was no rights of

pre-emption.”

In Muwatta Malik vol. II page 250 under heading

No. 35 The Book of Pre-emption (translated into

English by F. Amira Zrein Matraji and published by

Dar EI-Fikr, Beirut) the law is stated thus:

“(1420) 1- Yahya narrated from Malik, on the

authority of the son of Shihab, from Sai’d bn al-

Musayyib, and from Abu Salama bn Abdur-Rahman

bn ‘Auf (may Allah be pleased with them) that the

Messenger of Allah [May peace and blessings of

Allah be upon him] had judged for partners the

right of pre-emption in property which has not been

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divided up. When boundaries had been fixed

between them, then there was no right of

pre-emption.”

Imam Malik was reported to have said, and in

confirmation of the above tradition:

“And on that, the tradition in which there is no

difference in it among us.”

Imam Malik is also reported, in the same book, to

have said:

“(1421) 2- Malik said: That it reached him that

Sai’d bn Al – Musayyib was asked about the

pre-emption. Is there any tradition in it’ He

said: Yes, the pre-emption in the house and the

land. And it does not occur but between partners.”

In Bidayatul Muytahid Vol. II page 193 both Malik

and Shafii were reported to have opined thus:

“The right of pre-emption exists between partners

in jointly owned property which has not been

divided by the partners. Where it has been divided

and boundaries fixed and demarcated, the right of

pre-emption abates.”

In Adawi Vol. II page 229, the author stated the law

as follows:

“Pre-emption exists in joint property. There is no

pre-emption in what has been divided; and a

neighbour has no right of pre-emption.”

In Ashalul Madarik Vol. 3 page 37 it is stated:

Pre-emption is a compulsory existing right between

partners in farms and public domain commensurate

to the share of each in such joint property.”

In Ihkamul – Ahkam (commentary on Tuhfah) the

author also stated the law as follows on p. 198

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thereof:

“The majority view of the jurists is that a neighbour

has no right of pre-emption.”

See also Al-Khirshi Vol. 6 page 163 (commentary

on Mukhtasar eI – Khalill) wherein also it is stated:

“It does not accrue to a neighbour who has a right

in an access road. This has been construed to mean

that the neighbour has no right of pre-emption

even where he possesses a right in an access road

to the house that had been sold.”

In Main-ar-Risalah of Ibn abi Zayyid page 189

(translated into English language by F. Amira Zrein

Matraji and published by Dar EI Fikr. Beirut, Liban)

the author said:

“But pre-emption is in the public domain. No

pre-emption in which is distributed, nor for a

neighbour, or a road or a court of a house whose

houses have been distributed, nor in the male

palm-trees or a well if palm-trees are distributed,

or the land.

A pre-emption is but in the land and what is

connected of it of the building and the tree.”

This is the Islamic law of the Maliki school which is

applicable generally to Northern States of Nigeria.

See the definition of “Muslim personal law” in Area

Court Edict, 1967 read together with the definition

of the same law in the Sharia Court of Appeal Law

Cap. 122 Vol. III, Laws of Northern Nigeria and

Section 14 of the same Law.

In the Area Courts Edict (No. 21) of 1967 “Muslim

personal law” is defined thus:

“Muslim personal law has the same meaning as it

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has in Cap. 122 – Sharia Court of Appeal Law.”

In the Sharia Court of Appeal Law Cap. 122

referred to supra, “Muslim law” has been ascribed

the following definition in S. 11:

“means Muslim law of Maliki school governing the

matters set out in paragraphs (a), (b), (c) and (d).”

14(a) of the Sharia Court of Appeal Law also

provides thus:

“14. The Court in exercise of the jurisdiction vested

in it by this Law as regards both substantive law

and practice and procedure, shall administer,

observe and enforce the observance of. The

principles and provisions of:

(a) Muslim law of the Maliki school as customarily

interpreted at the place where the trial at first

instance took place.”

11 (e) of the Law further provides that:

“(e) Where all the parties to the proceedings

(whether or not they are Muslims) have by writing

under their hand requested the Court that hears

the case in the first instance to determine that case

in accordance with Muslim law, any other question.”

Reading all the provisions of the Laws referred to

above, it can easily be discerned that the applicable

Muslim law in Area Courts is the Islamic law of the

Maliki school. Also going by the interpretation of

the words “native law and custom” which includes

Muslem law, the applicable Islamic law of Maliki

school, from the time of establishments of these

Courts (both before and after the colonisation of the

area today being referred to as Northern States of

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Nigeria and up to today) has been the applicable

law in the Courts. So on the principle of notoriety

the law has gained acceptance and recognition by both the inferior and the superior Courts in this country that judicial notice of it can be taken.

Islamic law is not same as customary law as it does

not belong to any particular tribe. It is a complete

system of universal law, more certain and

permanent and more universal than the English

common law .

It is true that there is another Hadith which confers

the right of Shufa to a neighbour. This has been

interpreted by Islamic law jurists in different ways,

and out of the four Sunni schools of law i.e. Maliki,

Shafi’i, Hanafi and Hambali. It is only the Hanafi

school that confers the right of Shufa on a

neighbour. The majority view as stated by Maliki is

that a neighbour does not possess the right.

In the matter before us now and from the

statement of the law of Maliki school, I come to the

conclusion that the appellant being a neighbour to

and not a partner in the ownership of the house in

dispute, has no right of pre-emption. The sale of

the house by the 1st respondent to the 2nd

respondent is valid and in order. The appellant has

nothing to waive in the matter as wrongly opined

by the Court of Appeal. The appeal fails for the

reasons stated above, other than those stated by

the Court of Appeal. I dismiss it and affirm the

conclusion reached by the Court of Appeal which

set aside the decisions of both the trial court and

the appellate High Court. The sale of the house by

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the 1st respondent to the 2nd respondent is hereby

declared valid and is affirmed.

Parties are to bear their own costs in this appeal.