Abdu Dagacin Beli V. Tijjani Umar (2005)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR ABDULKADIR JEGA, J.C.A.
The respondent in this appeal was the appellant before the court below, the Kano State High Court of Justice in an appeal against the decision of the trial Upper Area Court Gwarzo in a farmland dispute, in which he was the plaintiff, while the appellant before this Court was the defendant. The respondent who argued his appeal in person at the court below presented his case as follows at pages 1 – 2 of the record of appeal-
“I am urging the court to retrieve my farm for me from the respondent Village Head. The farm belongs to my father and he had allowed me to farm on the land when he was alive. It was about 4 years ago that the farm was seized away from me by the respondent, with the help of the Area Court Judge Zarewa. I was dissatisfied with the Area Court decision and appealed against it at the Sharia Court of Appeal. The farm was awarded to me. The court made order that the respondent should hand over the farm to me, but he refused to comply since about 4 years ago.
An order of Sharia Court was served on the trial Judge to execute, but he too refused. This is why I came to this Court to help me recover my land from the people, who are there now farming on it. I urge the court to recover the land for me and to ask the people to pay me damages.”
As some of the allegations made by the respondent above are quite grave and also contrary to the record of appeal before the court below, that court ordered the Registrar of the Sharia Court of Appeal to produce to it the original record of proceedings in Suits No. SCA/CV/KN/103/98 and SCA/CV/138/98. It was from these additional records of the Sharia Court of Appeal, Kano, that the correct picture of the chequered history of this case was clearly brought out.
The dispute between the parties over the swampy farmland in dispute started at the Zarewa Area Court, where the complaint was made in Suit No. CV/558/96. Judgment in the matter was delivered on 13-4-97 in favour of the respondent in the present appeal as plaintiff. The appellant as the then defendant who was not satisfied with the judgment then appealed to the Gwagwarwa Upper Area Court, which in its judgment delivered on 6-4-98, affirmed the decision of the trial Zarewa Area Court in favour of the respondent. However, on further appeal to the Sharia Court of Appeal, Kano, against the decision of the Gwagwarwa Upper Area Court by the appellant, the Sharia Court of Appeal in its decision delivered on 19-5-99 allowed the appeal, set aside the decisions of both the trial and Upper Area Courts and order the rehearing of the case afresh by the Upper Area Court Gwarzo. Therefore, it is not true as claimed by the respondent in this appeal before the court below, that the Sharia Court of Appeal, Kano, made any order on the appellant to hand over the swampy farmland in dispute to him or that any trial Area Court or Upper Area Court was ever ordered to execute any judgment in favour of the respondent.
From the facts gleaned from the record of this appeal, it is not in doubt that the appeal arose from the decision of the Upper Area Court Gwarzo in the retrial of the case between the parties as ordered by the Sharia Court of Appeal, Kano State. After hearing the parties and the witnesses called by them in support of their respective claims to the swampy farmland in dispute, the Gwarzo Upper Area Court dismissed the claim of the respondent as the plaintiff in its judgment, delivered on 21-9-99. The respondent who was not happy with that decision then appealed against it to the High Court of Justice, Kano State, which after hearing the parties, in its judgment of 19-2-2001, allowed the appeal and ordered the parties to go back to the Upper Area Court for that court to administer oath to the respondent to confirm his claim to the farmland. Aggrieved by that decision, the appellant who was the respondent at the court below, has now appealed to this Court on 5 grounds of appeal against that decision.
Before this appeal came up for hearing on 9-3-2005, only the appellant’s brief of argument was filed. At the hearing of the appeal, the respondent who was not represented by counsel said he could not afford the services of a counsel and therefore was appearing in person. Thus, this court in exercise of its powers under Order 6 Rule 10 of the Court of Appeal Rules, 2002, granted leave to the respondent to be heard in oral argument as no respondent’s brief of argument was filed by him. However, in the brief of argument filed on behalf of the appellant by his learned counsel, 3 issues for determination were formulated from the 5 grounds of appeal filed by the appellant to challenge the decision of the court below. The issues are-
“(i) Whether evidence of PW2, who testified for the respondent before the trial court is admissible and can be acted upon by the lower court.
(ii) Whether the lower court was right in considering the respondent’s claim before the trial court as part of evidence.
(iii) Whether the learned Kano State High Court of Appeal Judges were right in giving judgment for the respondent in a claim of Istihqaq (dispute of right of ownership) in respect of landed property without considering the evidence from the appellant.”
In support of the first issue for determination, learned Counsel to the appellant submitted that the evidence of PW2 which the court below held to be valid for not having been impeached, is not valid and could not in accordance with Islamic Law be relied upon by the lower court as the basis of its judgment in favour of the respondent.
That as the evidence of that witness is only to the effect that he only knew the respondent’s father to be cultivating the farmland, but does not know how the respondent’s father got the farmland, his evidence was not helpful to the respondent. That as the claim of the respondent as stated at the lower court was that his father told him that he bought the disputed swampy farmland from the Ward head Gandu, the evidence of PW2 cannot be said to have supported the claim of the respondent. Learned Counsel further argued that under Islamic Law, any witness that gives evidence of ownership over landed property must trace the root of title of the owner, that the property never left his possession in any way at least 10 months before the suit or more. Failure to do so makes the evidence not amounting to evidence relying on page 264 of Ihkamil Ahkam Ala Tufatul Hukkam.
On the 2nd issue, learned Counsel pointed out that under the Sharia, a claimant’s statement before a court is merely a claim, which must be proved by evidence in support thereof and as such it cannot constitute evidence. That under Islamic Law, a plaintiff or defendant cannot be a competent witness in his case. Parties must bring independent witness, who has no interest in the subject matter of the dispute to prove their cases. Page 9 of Ihkamil Ahkam Ala Tuhfatul Hukkam was relied upon. That the lower court was therefore wrong in considering the statement of claim of the respondent as part of the evidence in support of his claim.
With regard to the 3rd issue for determination, the learned Counsel to the appellant argued that the lower court was wrong in setting aside the judgment of the trial Upper Area Court and ordering the respondent to be given oath to conclude the requirement of two witnesses to confirm his claim without considering the evidence called by the appellant. Page 264 of Ihkamil Ahkam Ala Tuhfatul Hukkam was cited in support of this argument. That as the appellant was in possession under Islamic Law, the respondent with his only one witness in support of his claim could not have been given the complementary oath to succeed in proving his claim without giving the appellant the right to adduce evidence on how he came about ownership and possession of the same property. Counsel concluded by saying that the case of Garba v. Yaro (1991) 1 NWLR (Pt.165) 102, relied upon by the lower court is not applicable to the present case.
The respondent who appeared in person, maintained that the swampy farmland in dispute was bought by his late father from the village head before the respondent was born. That when the appellant took some of the farmland, his late father went to Karaye Area Court and got judgment. The respondent affirmed that he had been in possession of the farmland after the death of his father and that although the appellant went to the Upper Area Court and the High Court in connection with the farmland, both courts had affirmed his title to the disputed farmland. He urged the court to dismiss the appeal and affirm the decision of the court below.
A careful scrutiny of the record of this appeal particularly the record of the trial Upper Area Court Gwarzo which, in the course of the retrial of the case between the parties to this appeal as ordered by the Sharia Court of Appeal Kano State, visited the swampy farmland in dispute, the nature of the dispute between the parties is that of boundary dispute. This is because from the report of the visit to the locus inquo by the trial Upper Area Court Gwarzo, both parties have farms on either side of the swampy farmland in dispute. The claim of the respondent against the appellant at the trial court relates to a claim for title over the swampy farmland, which the respondent said his deceased father told him that he bought from the Ward head Gandu. From the wording of the claim of the respondent as plaintiff to recover the swampy farmland from the appellant as the defendant, it is plain that the defendant now appellant was in possession. To prove his claim, the respondent called two male witnesses. However, the first witness was successfully impeached on ground of blood relationship with the respondent, thereby, making him an incompetent witness under the Sharia, for being a person having an interest in the subject matter of the litigation. See Sule v. Hamidu (1988) 4 NWLR (Pt. 90) 516 at 522.
The only main issue for determination in this appeal therefore is whether the evidence of the only remaining witness PW2, who testified in support of the claim of the respondent, could be relied upon under the Sharia as found by the court below to support its judgment in sending the parties back to the trial Upper Area Court, for the respondent to subscribe to an oath to complement the requirement of the two male unimpeachable witnesses in support of the respondent’s claim. In other words, was the claim of the respondent for title to the swampy farmland in dispute proved by admissible legal evidence in accordance with Sharia?
The general principles of law under the Sharia in relation to claim in civil matters in both moveable and inmoveable property is that proof is complete by the evidence of two male unimpeachable witnesses or such one male witness and two or more female unimpeachable witnesses or one male or two female or more such unimpeachable witnesses with the claimant’s oath in either case. See Baba v. Aruwa (1986) 5 NWLR (Pt.44) 774 at 786 and page 34 of Ihkamul Akham, short commentary on Tuhfatul Hukkam, the English translation of the Arabic which stated thus –
“With the exception of proof of allegation of adultery or fornication, evidence of two unimpeachable male witnesses is sufficient or in the alternative (ii) evidence of one male and two-or more female witnesses or (iii) a male witness with the claimant’s oath or (iv) two or more female witnesses with the claimant’s oath.”
See also Paragraph 1563 of page 300 of Ruxton on Maliki Law.
Where however, the claimant is laying claim of ownership over a piece of land in possession of an adverse party, who is also claiming ownership of the same piece of land as is the position in the present case, the claimant is required, to prove his claim by calling the required number of unimpeachable witnesses and the claimant oath as outlined above. If the claimant fails to do so, the defendant shall be called upon to take the oath of rebuttal. See Mohammed v. Idi (1961-1989) Sharia Law Report of Nigeria (SLRN) 229; Usman v. Ram (2001) 8 NWLR (Pt. 715) 449 at 453.
In the present case, the court below quoted in full the entire evidence adduced by PW2 called by the respondent as the plaintiff at pages 10 – 11 of the record to support its judgment where it said-
For the purpose of clarity we shall repeat the evidence of witness No.2 here:
“On page 6 of the record what the witness said was:-
Ct- witness:- Did you know the subject matter on which they are contesting this case?
Answer: I know it is a swampy farm situate at Gandu, south eastern side of the town.
Ct-witness:- Therefore as far as you are concerned, for the sake of Allah what (sic) did you know about that swampy farm?
Answer:- As far as I am concern (sic) I know M. Umar. the father of Tijjani has been cultivating the place.
Ct-witness:- Then who was the owner of the place?
Answer:- I just (sic) know that Umaru has been cultivating the place.
Ct-witness:- Then did he (sic) bought it on did he (sic) inherited it or was it borrowed to him?
Answer:- I don’t know. I only knew that he has been cultivating it. This is the only thing which I know.”
If indeed, the basis of the claim of the respondent to the swampy farmland in dispute was that it belongs to his late father, who told him that he bought it from the village head Gandu at an unspecified price, then the evidence of PW2 quoted in full above from the judgment of the court below, which also quoted and relied on it, is infact, very far from supporting the claim of the respondent to the ownership of the swampy farmland in dispute under both the common law and the Sharia. Also, based on the same evidence of PW2 quoted above from the judgment of the court below which also relied on it, it is indeed very difficult if not impossible to explain how that court below arrived at its finding at page 11 of the record that-
“It follows therefore, that if the witness said that the farmland belongs to the appellant we cannot see how the piece of evidence is in conflict with what the appellant complained to the court.”
With the greatest respect to the court below, there is no where in the evidence of PW2 quoted by it above, where he said the farmland in dispute belongs to the appellant, now respondent in this court. The court below was therefore in error in finding that the evidence of PW2 was in support of the respondent’s claim to justify asking him to subscribe to an oath to compliment the required number of the witnesses under the Sharia to support his claim of ownership to the swampy farmland in dispute, See Supreme Court decision in Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1; Kaka v. Nagwanja (2001) 9 NWLR (Pt. 717) 124 at 130 – 131. The appeal therefore succeeds on this issue.
As issues 2 and 3 as formulated by the learned appellant’s counsel are strongly linked to issue No.1 just resolved in favour of the appellant on the absence of legally admissible evidence to support the judgment of the court below, the issues no longer arise for determination in this appeal. In particular, the second issue for determination based on the accusation that the lower court treated the claim of the respondent at the trial court as evidence, does not arise from the judgment of that court. This is because, if the court below had regarded the statement made by the respondent at the trial Upper Area Court Gwarzo as evidence, then that court applying Sharia as it did to the appeal before it, would not have required the respondent to supplement the evidence of the unimpeached PW2 with an oath to establish his claim. The court below therefore acted quite correctly in accordance with Sharia in not regarding the statement of claim of the plaintiff as evidence. This is because a plaintiff under the Sharia is not a competent witness in his own cause. See Abdullahi Mogaji Mafolaku v. Ita Alamu (1990) I.L.R. 66 at 76, where this court per Maidama, J.C.A. (of the blessed memory) said:
“It is pertinent to state here that under Moslem Law, unlike the English Law, parties are not competent witnesses in court in their own respective cases, hence, their statements in court would not be regarded as evidence.”
See also page 9 of Ihkamil Ahkam Ala Tuhfatul Hukkam (Commentary on Tuhfa).
Under the Sharia as well as under the Common Law, an appellate court will not interfere with the findings of facts by trial courts and courts below unless such findings cannot be justified by the evidence adduced at the trial court. In the present case, the findings of the trial Upper Area Court Gwarzo that the respondent had failed to prove his claim by the evidence of the witnesses called by him, was fully supported by the evidence before that court. The court below was therefore in great error in setting aside that judgment which was quite correct on the facts and the law. See Hada v. Malumfashi (1993) 7 NWLR (Pt 303) 1 at 21; Ekwunife v. Wayne Ltd (1989) 5 NWLR (Pt.122) 422 at 439. Therefore, in the instant case where the reason given by the court below for setting aside the judgment of the trial Gwarzo Upper Area Court turns out to be wrong or unfounded, this court has a duty to set it aside.
For the foregoing reasons therefore, this appeal succeeds and the same is hereby allowed. The judgment of the Kano State High Court of Justice in its appellate jurisdiction in appeal No. K/91A/99, delivered on 19-2-2001 is hereby, set aside. In its place, the judgment of the trial Upper Area Court Gwarzo delivered on 21-9-99 is hereby, restored and affirmed.
No order on costs.
Other Citations: (2005)LCN/1750(CA)
