Ahamdu Sidi V. Abdullahi Sha’aban (1992)

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MOHAMMED, J.C.A.

Three farms left behind by one Sidi, are the subject of the dispute between the parties, in this appeal, Before I go into this judgment it is relevant to examine the relationship between Sidi and the parties in this dispute.

Sidi’s father Isa was a full brother to one Abdullahi who was the father of Barau, Dantani and Aha’aban. Sha’aban is the father of the respondent. The appellant is the son of one woman called Lantana who is a full sister to Hassatu, Sidi’s wife. When the appellant was about to be weaned. Hassatu brought him to Sidi’s house. Sidi who was childless became a guardian of the appellant. The appellant remained under Sidi’s care up to the time of his death. Sidi got him married, and from the evidence of all the witnesses at the trial Court, the appellant was given all the love and care of a son. The appellant told the trial court that Sidi had given him the three farms in dispute as a gift.

The respondent, in his claim before the trial court, asserted that after Sidi’s death his father and two uncles. Barau and Dantani, gave the farms on loan to the appellant. The respondent continued in the explanation of his claim before the court as follows:

“It is now 50 years ago since the day they gave him the lands on loan. My father died 25 years ago. While Barau died 20 years ago and Dantani 25 years ago. When they gave the Defendant the farms they did not retrieve it back from him up to the time of their deaths and ever since the lands remain in his custody they did not ever receive anything from him because my father’s elder brother Sidi married the Defendant’s sister by name Hasatu and it was she who weaned him from childhood when her sister Lantana brought him to our house as an adopted son (AGOLA). The farmlands are now the legacies of our 3 parents and we want him to give us back to be shared among the legal heirs being an inherited property.”

The trial Area Court directed the parties to call witnesses in proof of their respective claims. The respondent, who was the plaintiff before the court, called three witnesses, and two witnesses testified in support of the appellant. In his judgment, the Kudan Area Court Judge. Muazu Muhammadu, found that none of the witnesses’ testimony was acceptable and invited the appellant, being the person in possession of the disputed farms, to take an oath. The appellant declined to do so. The Judge then turned to the respondent and asked if he was ready to swear. He agreed and took an oath. The three farms were thereafter declared to be the property of Sha’ aban. Barau and Dantani, the father and uncles of the respondent. Dissatisfied with this decision the appellant appealed to the Upper Area Court. Zaria. The Court considered the submissions of both parties before it and the record of proceedings of the trial Area Court, and in a considered judgment, it reversed the decision of the Area Court. The Court based its finding on the principle of Hauzi (Prescription). The conclusion of the appellate Upper Area Court is that the appellant should have been made to swear in order to complement his long possession of the farms. The Judge said that since the farms have been in possession of the appellant for more than 20 years after the death of respondent’s father and he had not paid any galla (tribute) to anyone and none of the respondent’s parents had raised an issue of inheritance until now, the claim had been caught up by the principle of Hauzi. The Judge thereafter made the appellant to swear and after he had done so he declared title of the disputed farm lands in his favour.

The respondent appealed against the judgment of the Upper Area Court to the Sharia Court of Appeal, Kaduna. The Sharia Court of Appeal observed, in its judgment, that the appellant had not satisfied the condition of Hauzi because he did not make it an issue before the Upper Area Court. The Court went further and opined that even if Hauzi applies, the marriage relationship the appellant and Sidi has extended the period of Hauzi between the parities in this dispute to 40 years. It would be only after this period that the appellant could obtain ownership of the farms through the principle of Hauzi. The Court allowed the appeal, set aside the decision of the Upper Area Court and restored the judgment of the trial Kudan Area Court.

Dissatisfied with that judgment the appellant came before this court on a single ground of appeal. He argued that he has stayed on those farms for many years and had built a house, settled inside and has been living there for the past 20 years. The appellant submitted before us that the respondent was not supported by a single member of Sidi’s family in this case which he filed against him. He argued that if the parents of the respondent had not accepted that the land had been given him by Sidi as a gift they would have requested him to deliver it back before they died. He said he has been on the land for more than 40 years. After the demise of Sidi the appellant submitted that he lived with Barau, Dantani and Sha’aban each for more than 20 years and none of them had questioned his possession over the farms in dispute.

The respondent on his part, argued that the appellant was only a ward of Sidi and therefore had no right under the law to inherit him. He said that the appellant once stayed away from the farms for 2 years. But when he came back he begged Harau to permit him remain on the farms on loan. However when the respondent was asked to comment on the statement that the appellant and his son have built a house in the farms, he agreed that the son of the appellant did build a house in one of the farms and lives inside with his father.

One very important issue considered by the Sharia Court of Appeal which convinced that Court to reverse the decision of the Upper Area Court is that the Upper Area Court had decided on hauzi which was not made an issue by the appellant before it. I must pause here to say that the Sharia Court of Appeal Kaduna is falling into a Common Law procedure by this finding. Under the Islamic Law both the trial and appellate Courts are not restricted to the grounds or issues raised by a party before it. The Judge is required to apply whichever is the relevant law applicable to the case before him. Under the procedure in Islamic Law a litigant can file a claim as a plaintiff and after thorough examination, which a judge is mandated to do, the plaintiff will turn out to be a defendant. See page 10 of Ihkamul Ahkam, a short commentary on Tukfatul Hukkam. See also rule 4 of Sokoto Area Court (Civil Procedure) (Amendment) Rules, 1980. Above all, it is the injunction of Almighty Allah, in the Holy Quran that he who adjudicates not in accordance with what Allah has ordained is a sinner Surat Maida, verse 47. Once a case is brought before a judge under the Islamic Law and Procedure the Court is not restricted to the grounds of appeal (if any) filed before it. The Judge can without being called upon to do so, consider the relevant law and apply it. At the appeal stage the appellate court can rehear or retry the case in whole or in part.

Under the Sharia Court of Appeal Rules 1960 there is no provision for filling grounds of appeal. Under Order 3 Rule 3 every appeal shall be entered either:

(a) in the form of a petition in writing presented to the appellant or some person duly authorised to do so on his behalf; or

(b) With the permission of the court by the appellant dictating his prayer to the registrar or other officer of the court; or

(c) by the appellant stating orally his prayer to the court.

Section 64 of Area Courts Law 1967 warned against undue regard to technicalities in handling appeals from Area Courts. Even under the common law procedure an appellate Court, in deciding the appeal, shall not be confined to the grounds of appeal, set forth by the appellant. The only difference between the two systems is that in the common law hearing, the Court shall not, if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground. See Order 3, Rule 22, (6) of Court of Appeal Rules 1981 (as amended). This court once decided in the case of Karimu Olamu v. Humani & Ors (1989-1991) Sharia Law Reports of Nigeria, Vol 2 at page 69 as follows:

“The moment a judge finds out an estate in dispute is a subject of inheritance which has not been divided it is mandatory upon him, even at appeal stage, to divide it even if neither party has invited the Court to do so.”

In the case in hand the appellant had in fact made a statement before the Upper Area Court Judge in which he said that he had been on the land for more than 40 years and had in fact built a house and has been living in it. He submitted that none of the respondent’s parents had challenged his possession with such a statement, it is imperative upon a judge where such a defence is put up, under Islamic Law, to look into the principle of hauzi. The Upper Area Court Judge, was quite correct to apply hauzi into this case. The issue of marriage relationship where the period of hauzi extends to 40 years does not affect this case, because the respondent himself at the opening of his submission before the trial are a court, told the court that the appellant had been on the land for 50 years.

It should be noted also that those to be affected by the principle covering relationship through marriage in regards to hauzi are those closely involved. The respondent is the son of a cousin of Sidi and such relationship is remote for a party to put up a defence against the application of hauzi.

If I turn to the claim of the respondent that he is entitled to inherit the farms through his father who was a cousin to Sidi, it should be noted that the appellant also has a claim over a portion of the farms since his aunt, Hasatu, survived Sidi; and under Islamic Law of inheritance – since Sidi had died childless his widow is entitled to one quarter of the estate he left behind.

So if one looks at this case on both sides. viz inheritance and hauzi, the appellant would have a stronger claim to the estate than the respondent.

This appeal is meritorious and for the reasons I have disclosed above it is allowed. The judgment of the Sharia Court of Appeal Kaduna is hereby set aside. The judgment of the Upper Area Court, Zaria, is hereby restored. The appellant had already taken the Oath of judgment. He shall retain the farms whose titles have been declared in his favour by Zaria Upper Area Court. The respondent shall pay N300.00 costs to the appellant.

Other Citations: (1992)LCN/0118(CA)