Hussaini Dandume V. Alhaji Adamu & Ors. (1997)

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MUNTAKA COOMASSIE, J.C.A. 

This is an appeal against the judgment of the Katsina State Sharia Court of Appeal holden at Funtua delivered on 26/6/93.

The facts of this appeal could be briefly stated thus:

That the appellant herein as plaintiff, sued the respondent and 59 others at Dandume Area Court hereinafter called trial Area Court to recover his father’s grazing places at the outskirt of Dandume Village being in unlawful possession of those 60 defendants. The defendants through their acclaimed representatives denied the appellant’s claim and insisted that the said grazing places belong to them jointly and severally. They have been in their respective possession of the land in dispute for over 50 years. (The least possession is 20 years) the longest possession is 53 years.

The appellant as plaintiff called witnesses who testified. Also the defendants called witnesses who gave evidence in their favour. At the end of the proceedings the trial Area Court was of the view that the appellant could not establish, by evidence, his case. The case of the appellant was then dismissed and the matter in dispute was declared the property of the defendants now respondents.

Aggrieved by the decision of the trial Area Court the appellant herein unsuccessfully appealed to the Upper Area Court Funtua now U.A.C.

The appellant further appealed to the Katsina State Sharia Court of Appeal.

The proceedings before the trial Area Court was clear that the matter was before that court in representative capacity. Five witnesses were called by the appellant but none of the witnesses testified clearly in favour of the appellant. Some of them went to the extent of saying that they had never seen the appellant or his father working on the disputed land.

Therefore there is no established possession in favour of the appellant. The 3rd and 4th witnesses called by the appellant testified to the effect that they don’t know anything about the disputed land. Infact the fourth witness further testified that the land in dispute never belonged to Alhaji Danboji the father of the appellant. The fifth and the last witness called by the appellant, a 65 year-old lady told the court although the place in dispute belongs to the grand father of the appellant neither the appellant’s grand father nor the appellant’s father ever farmed or worked on the place in dispute.

The respondents, as defendants, called four witnesses who testified unanimously that the farmland in dispute belonged to the defendants severally. They have been in such a possession for up to 54 years to 60 years ago. These witnesses consistently testified that neither the appellant’s grand father nor his father ever owned the places. The appellant was given an opportunity to impeach any or all the witnesses but failed to do so. That court then held that the appellant could not prove his claim and dismissed same.

In the UAC the record of proceedings of the trial court was thoroughly scrutinized and analyzed. In conclusion the UAC held that after going through the record of proceedings it found that the appellant failed to call witness or witnesses that will prove his claim. None of the witnesses called by the appellant told the court that the places in dispute belonged to the grand father or father of the appellant; and none of his parents ever possessed the disputed land let alone worked on same. Infact the appellant himself on page 3 line 6 of the record testified to the effect that his father Alhaji Danboji never worked on the disputed places. On the other hand, each and every defendant/respondent explained to the trial court how each one of them got the portion of the disputed land. Some got their own 38 years ago, some 55 years, others 60 years, there are others also who got their own 65 years ago. The appellant was present when the above witnesses testified and he did not even attempt to challenge their evidence by way of impeachment (Tajrech). The UAC then affirmed the decision of the trial area court and dismissed the appellant’s appeal before it.

After reviewing the two records of proceedings of the lower courts the Katsina State Sharia Court of Appeal, hereinafter called court below, held that the appellant failed to call witnesses who will testify in proof of his claim. The evidence of the witnesses called by him neither supports the ownership of the disputed places nor establishes possession of same by him or any of his parents. Infact some of the witnesses called by the appellant told the court that they did not even know his grandfather from whom the appellant was claiming the disputed places. The court below added that assuming, without conceding, that the disputed land belonged to the appellant’s grandfather or his father it was left for a long time.

The appellant must have forfeited his right over the places. The defendants, the court below further held, acquired ownership by prescription popularly known as Hauzi in Islamic Law. They were in possession for more than 10 years. In that situation the claim of the appellant even if proved cannot be granted. Hauzi principle will defeat such a claim. Based on the above reasons the court below affirmed both decisions of the UAC and the trial Area Court and dismissed the appeal of the appellant thereby.

Dissatisfied with the above judgments the appellant appealed to this court and filed a notice of appeal containing an omnibus ground which reads thus:-

“The decision of the trial Sharia Court of Appeal (sic) is unreasonable and unwarranted having regards to the weight of evidence.”

Parties in this appeal were not represented by counsel and they indicated their wish to rely on the records of proceedings of the three lower courts.

Considering the sole ground of appeal filed by the appellant, the records of proceedings relied upon by the parties and the prevailing law, I am of the candid view that the only issue that can be discerned and distilled therefrom is whether or not proper procedure has been followed by the trial and UAC courts to enable the court below affirm their decisions.

After reviewing the records of proceedings of the trial Area Court I discover that correct Islamic Law Procedure has been applied in the trial of the case. It is correct, as followed by the trial Area Court that he who asserts has the burden of proof of his claim. In Islamic Law the plaintiff/claimant is not allowed to testify in his case. Unlike the position in English Law where the plaintiff can testify in proof of his claim and in some cases the court can rely on his evidence if such evidence can establish his case on the balance of probability.

In Islamic Law the plaintiff cannot do that. He is only required to call the required number of witnesses to come to court and testify in favour of the plaintiff. His evidence is clearly in-admissible in law. If the plaintiff or claimant fails to discharge the burden of proof or he relies on his evidence where it was erroneously allowed by the court, then, in a proper situation, the defendant shall be asked to subscribe to an oath of rebuttal.

In this appeal it is clear that the trial Area Court first asked the plaintiff to call his witnesses if any in proof of his claim. After such exercise it was necessary to hear the defendants in defence. The court then allowed the defendants/respondents to call their witnesses to show that they are the owners of the disputed places and not the appellant.

After hearing both sides and after applying an Iz’ar in a most appropriate time, i.e. before judgment, the said court gave its reasons in dismissing the claim of the appellant and awarding the respondents their places. Ihkammul Ahkam, short commentary on Tuhfatul-Hukkaim p14.

In the circumstances of this case where the witnesses of the appellant gave divergent evidence on the ownership and possession of the disputed places it is correct for the court to allow the defendants/respondents to call their witnesses instead of offering them with oath.

I am therefore of the view that the court below was perfectly right in upholding the decision of the UAC Funtua which affirmed the decision of the trial Area Court. The position taken by the trial Area Court and the two subsequent lower courts is not perverse. I have therefore no reason to disturb such a finding.

On the principle of Hauzi introduced by the court below, I wish to state that even though it was not clearly thrashed out in the trial Area Court the principle is correctly stated by the Sharia Court of Appeal i.e court below.

Both in the Holy tradition of the Prophet Muhammed (P.U.H.) and the analysis of jurists it is agreed that whoever cleared a piece of land became its owner. In other words, where a place could be regarded as Bona vacantia any person who first cultivated it can claim its ownership. So also where a person found a place abandoned and cultivated same and has been using the place as his own for upward 10 years, he acquires title to such land or place by Hauzi. For that reason if the true owner later emerged and claimed ownership of such a land his claim cannot be heard and must be dismissed. Unless and until he can show that the occupants are his relations, trustees or inlaws et cetera.

It has since been trite in Islamic Law that where a person has been in an undisturbed possession of a landed property for a period of ten years or more, while the true owner, who is not related to him by blood and so on, stands by and does nothing to redeem his property (or claim back his property), the person in possession acquires title by prescription, popularly known in Sharia as Hauzi. Abubakar Gidan Kada v. Salihu Gidan Yawa 1 (1961)-(1989) SLRNP. 243; Bahaja, Commentary on Tuhfatul-Hukkam, Volume 2, 1991 Ed. p. 476; Jawahirul-Iklil Commentary on Mukhtasar Khalil volume 2; See Tabsiratul-Hukkam Ibn Farhun, 1st Ed.

It cannot be right for any appellate court to unnecessarily disturb the correct findings of facts of the lower court. On the whole the Sharia Court of Appeal treated all the issues placed before it and correctly discussed the issue of Hauzi in Sharia and resolved same in favour of the respondents. The appeal fails. It is dismissed. The decision of the court below, Katsina State Sharia Court of Appeal is faultless and un-assailable and is hereby upheld. N800 costs to the respondents against the appellant.

Other Citations: (1997)LCN/0311(CA)