Aishatu Kausani & Ors V. Wada Kausani & Ors (1999)
LawGlobal-Hub Lead Judgment Report
I.T.MUHAMMAD, J .C.A.
On the 12th day of February, 1990, the Upper Area Court I, sitting at Bompai, Kana issued a retrial order, directing the Garko Area Court of Kano State, to retry the case between the parties to this appeal. The Garko Area Court (trial court) was told by the appellants an plaintiffs that they were seeking for their inheritance (four farmlands) from the respondents/defendants. The respondents refuted the claim and each stated the root of his title to the piece of farmland in his possession. In the respective replies before the trial court, the 1st and 3rd defendants, each claimed that he bought the farmland from a named individual whereas the 2nd and 4th defendants, each claimed that he inherited the farmland from his father. Judgment was then entered in favour of the appellants. Dissatisfied with the judgment, the respondents/defendants appealed to the Kano State Sharia Court of Appeal (the lower court). The lower court, after reviewing the case as presented by the parties at the trial court and the decision of the trial court, reversed the trial court’s decision and confirmed title of the land to the defendants/respondents. The plaintiffs/appellants, dissatisfied with the lower court’s decision, appealed to this Court on five grounds of appeal initially. Three additional grounds of appeal were on the 25th day of November, 1997, deemed properly filed and served. The appellants were in this Court, represented by a counsel whereas the respondents remained undefended.
A brief of argument filed on behalf of the appellants was deemed properly filed and served on the 25/11197. No brief was filed by the respondents.
On the hearing date of this appeal, learned counsel for the appellants adopted and relied on the appellants brief. He urged us to allow the appeal. The 1st respondent, on behalf of himself and the other co-respondents adopted and relied on all the submissions made by the respondents at both the trial and the lower courts. He had nothing more to add and urged the court to dismiss the appeal. In his brief, learned counsel for the appellants formulated the following issues for considerations:
“1. Whether the principle of sale by an intruder under Islamic Law applies to the appellants case? 2. Whether the first appellant’s statement before the lower court amount to an admission “IQRAR” under Islamic Law and binds on the first appellant as well as other appellants.
- Whether the decision of the lower court is rightly decided having regards to the omissions of the fundamentals in an Islamic Law Procedure?”
It is the argument of learned counsel for the appellant that sale by an intruder cannot be upheld where the person in possession of the subject matter in dispute traced his root of title from inheritance. The lower court, he contended, ought to have considered whether there existed any lawful excuses such as fear of a superior person, persons of tender age, insanity etc which could constitute impediments to the existence of sale by an intruder. A sale of a minor’s property, he argued, does not bind him and the minor has option to repudiate same once he attains majority. He relied on Ikhan Al-Akham (page 277). Learned counsel finally submitted on issue one that for a just and proper decision on sale by an intruder, it must be proved that the appellants attained age of majority.
On Issue No.2, learned counsel submitted that the requirements of a valid admission in law were never met and that the lower court erred in law when it based its decision on the statement of the 1st appellant. On the 3rd issue formulated, learned counsel argued that the decisions of both the trial and the lower courts failed short of some fundamentals of Islamic Law Procedure such as establishment of the death and relationship of those persons through whom the parties were claiming to have got the property in dispute. He cited and relied on Bahaja, Mawahib halau etc. He finally urged us to allow the appeal and order for a retrial of the whole case.
In treating this appeal, it is pertinent for me to observe from the outset that this is one of the rare situations where in a suit before a trial court, the defendant changes position to become the plaintiff. The initial plaintiffs at the trial court were the appellant now before this Court and the respondents were the defendants. It is clear from the initial stage of the proceedings at the trial court, that court requested the respondents to produce witnesses to testify on their behalf on the issue of how each one of them came into the possession of the piece of land he was holding whether by sale or by inheritance. It was only the 3rd defendant who called one Yanbiyu to testify on his behalf that the (Yanbiyu) sold the piece of land to 3rd defendant. No evidence was at all called by the plaintiffs/respondent. No further witness was called by any of the defendants. No exculpatory oath (Yemun al-Istibra”i) was administered by the trial court on the defendants/respondents. But yet the trial court went ahead to enter judgment in favour of the plaintiffs/appellants. This certainly offended the principle of proof which Ibn Asimi the author of Al- Tbhfa, elegantly stated: –
Meaning:
The plaintiff is required to produce witnesses to testify for him in almost all situations. The defendant is required to take an Oath where the plaintiff has failed to establish his claim.
There was a total failure by the plaintiffs to produce witnesses to establish their claim. The claim ought to have been dismissed. The dismissal of the appeal would have entitled the respondents/defendants to keep in possession of the properties in their hands only if the escalpatory oath was administered. This was later done on appeal, by the lower court. I quote verbatim herein below a portion from the lower court’s judgment dealing with that Oath:-
“The judgment which the first instant court has done Garko Area Court is it full of mistakes in case No. GAR/AC/CV/204/1990 dated 17/1/1990.
Due to that we have changed it with stating that the said farms which are in the possession of appellant which Ibrahim, Sule and Saidu in accordance with principles of Islamic Law. The said farms belong to them. But with one condition. The condition is that, due to the confirmation of justice each one of the appellant/defendant they have joined together that they are going to swear. Based on their claim for buying or inheritance.”
It is in the record of appeal that each of the defendants/respondents took the escalpatory oath in the presence of plaintiffs/appellants and witnesses.
Now coming back to the issues formulated by learned counsel for the appellants. In the first issue for instance, learned counsel asked whether principles of sale by intruder (Al-Fudhuli) apply to this case. Now after having gone through the trial court’s judgment I failed to see where the trial court made a finding on sale by an intruder. The only conclusion which the trial court reached was that the defendants/respondents had purchased the farms of heirs from one Abdullahi Maikano when the inheritance was not divided among the heirs. The trial court avoided the sale. The finding that there was a sale in my view, was wrongly made. And the conclusion reached also, was wrongly reached. This is because there was no evidence upon which to rest both the finding and the conclusion. It is trite law that trial court must decide a case on legal evidence adduced and where it has failed to follow this course, an Appeal Court will interfere. See: Simeon Muonweokwu v. Fas E. Egbbunike and Anor. 91959) 3 ENLR 53; Alashe v. Olori-Ilu (1964) 1 all NLR 390; Shija v. Fari (1986) 2 NWLR (Pt. 21) 147. in the Tuhfat Al-Hukkam, it is equally stated as follows:-
Meaning:
The jurists are in concurrence that a judge should base his judgment upon what he learnt from the witnesses.
Commenting on the above paragraphs of the Tuhfa, Sheikh Al-Kafi, author of the Ihkam al-Ahkam stated (page 14) inter alia-
Meaning
Imam Maliki (May Allah have mercy on him) strongly prohibited him (the judge) from basing his judgment upon facts which are not supported by evidence even if such facts took place in his court. It is clear from the record that there is no such evidence from which the trial Judge based his conclusion that the farmlands in dispute were sold to the defendants/ respondents by an intruder. The lower court as well, should not have undertaken a fruitless exercise in elucidating the circumstances of a sale by an intruder (Al-Fudhuli). Secondly, the basic procedural rule is that where a thing, such as landed property, is in the possession of the defendant, it is wrong to ask the defendant to explain how he comes about that possession. This Court has long ago stated the correct position of the law (both Common and Islamic Law) that it is wrong of a trial court to call upon the defendant to state his case. per Wali J.C.A. (as he then was) in Shija v. Fari (supra). In the Tabsirat al-Hukkam. It is stated:
Meaning:
“The person in possession should not be asked to explain how does the thing in possession come to him. And in any event, the claim of the plaintiff is avoided.
(See page 92 of Vol. 2 of the Tabsirat supra). On the second issue, learned counsel for the appellants questioned whether there was a binding admission made by the appellant before the lower court. I think what is of importance is the statement of claim made by the plaintiff at the trial court. It is this claim that determines the competence and jurisdiction of an Appeal Court. See – Hussaini v. Bagada (1989-91) 2 SLRN 226 at 234; Gulma v. Bahago (1993) 1 NWLR (Pt. 272) 766; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. From the records, (page 2, Hausa version and pages 13-14, English translation) it has been clearly stated by plaintiffs that they were seeking the inheritance of their father Shehu – four farms – from the defendants which the plaintiffs never sold or mortgaged and never distributed to the heirs. No admission was made by the plaintiffs on the sale transactions of the farms. This statement is what ought to have guided the lower court as it was entertaining the case at its appellate jurisdiction and ought not to have entertained any (new) fresh statement of claim from the appellant in respect of the appeal before it. I agree with learned counsel for the appellant that the learned Kadis were wrong in considering the 1st appellant’s reply to the respondent’s grounds of appeal at the lower court to have amounted to an admission. In its legal connotation, admission (iqrar/iitiraf) is that voluntary declaration or acknowledgment made by a competent Muslim for the avowal of the right of another which binds him upon fulfillment of some necessary conditions. The plaintiffs/appellants in this case categorically stated in their claim that they never sold or mortgaged the farmlands. In my view, there was no admission from the appellants.
On the 3rd issue, it is clear from the record that the lower court did observe that:-
“……..We are seeing the judgment which the first instant court has done Garko Area Court is it full of mistakes on Case No. GAR/AC/CV/204/1990 dated 17/1/1990.”
Of the mistakes committed by the trial court was that of omission to administer Oath on the respondents. The lower court administered this Oath straightaway. I think the lower court was right in so doing. This is as I explained earlier that the requirement of the law is that burden of proof is on the plaintiff. Where the plaintiff fails to discharge that burden, then the defendant is asked to subscribe to the judicial/exculpatory Oath to entitle him to the subject matter in dispute. This, the Prophet (PBUH) is reported to have held. He is quoted as having said in another Hadith:
Meaning:
Your (two) witnesses or his Oath.
The trial court did neither of the above, but yet confirmed title of the lands in dispute on the plaintiffs. This was certainly wrong. The appeal court (the lower court in this case) was duty bound to correct wherever the trial court went wrong in its proceedings. That certainly is the essence of an appeal court. It is stated in the Tabsirat:
Meaning:
It is permitted for the jurists (appeal Judges) to consider (a lower court’s decision). Where it is clear to them that it was wrongly based, they should reject it. But where it was based in accordance with the laid down procedures, it should be affirmed and executed.
(See page 70 of vol. 1 of the Tabsirat ibid). In the Sharia Court of Appeal rules, Laws, of Northern Nigeria, CAP 122 of 1960, Order III Rule 7(i) (g) empowers the court to do or order to be done anything which the court below has power to do or order. Since the trial court omitted to administer the judicial Oath on the respondents, the lower court was correct in my view, by administering such Oath. And in the absence of any proof from the appellants which would entitle them to the farmlands in dispute, oath was the only solution. I am satisfied that this procedure was correctly followed by the lower court.
Accordingly, I find no merit in this appeal and same is hereby dismissed. I affirm the decision of the lower court looking at the nature of the case, I order that each party bear its own costs.
Other Citations: (1999)LCN/0544(CA)
