Alhaji Aminu Garba Safeti & Ors. V. Mujitaba Garba Safeti & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
I.T. MUHAMMAD, J.C.A.
At the Kasuwa Upper Area Court Kano, the 1st plaintiff, on behalf of fifteen others instituted a claim against the defendants. His claim is as follows.
“I am instituting this suit against Alhaji Aminu, Sani, Rabiu, Muddasiru in respect of our late father Alh. Garba Safeti who died some five months ago, he left one wife Hajiya Ummah with 20 children, 10 males and 10 females. They are: (1) Aminu (1st) defendant), Sani (2nd defendant) Rabiu (3rd defendant) Mujtaba (the plaintiff) Muddasiru (the 4th defendant) (5) Da’u (6) Matinu (7) Habibu (8) Bashir (9) Muntari and 10 females they are:- (1) Hajiya Binta (2) Dije (3) Asiya (4) Sa’adiya (5) Hauwa (6) Bilki (7) Maimuna (8) Amina (9) Rukayya., (10) Zainab.
And our late father left 3 houses one is under the custody of Alh. Aminu of Marmara quarters with the following boundaries East adjacent to Alh. Saidu. West by the road, South by the road. North by Maganin Danwake. The second house at Deneji the boundaries are from the East. I don’t know the boundary, West by the road, South by the Mosque, North by Alh. Danja. The 3rd house which is under the custody of Alhaji Rabiu which is situated at Marmara quarters has the following boundaries East by the road, West by Alh. Idi, South by road, North by Muddasiru. The fourth house is under the custody of Alhaji Muddasiru and situate at Marmara quarters, Kano. East by the road, West by Alh. Idi, South by Mallam Rabiu, North by Alh. Ado.
These are the houses in dispute which they claim that our father A. Garba Safeti has gave (sic) them as gifts of which I want the court to verify the authenticity of the said gifts. Whether they are genuine or not.”
Each of the defendants gave his response as follows:-
“ALH. AMINU: said the house in my possession was built for me by our father A. Garba Safeti who married a wife for me and gave me the house to me some 16 or 17 years ago.
SANI: The said house was built for me by our father and married for me in the said house and gave Asiya one room inside the house, eight months ago.
RABIU: Answered that the house in question was built for us, me and Sani by our father and marry our wives to us, he gave it to us since about 5 – 6 years, who later gave Sani another house where Sani is presently residing and gave Muddassiru the former position occupied by Sani some five or six years ago.
A. MUDDASSIRU said the said house was given to me by our father 9 months ago.”
The trial court proceeded to put questions to the defendants whether they had witnesses who knew of the gift of the said houses made to them by their deceased father. Two witnesses testified. An oath was as well administered to some of the plaintiffs to confirm the transaction done with a person who is now deceased. The trial court confirmed titles of the houses on all the defendants (now plaintiffs) except Alhaji Aminu who refused to subscribe to oath and was given discretion by the trial court either to swear or his portion be distributed to the heirs.
Dissatisfied, the defendants (original plaintiffs) appealed to the Sharia Court of Appeal Kano (lower court) on three grounds. The lower court allowed the appeal, set aside the judgment of the trial court and ordered the matter to be tried by City No.1 Area Court.
Dissatisfied further, the plaintiffs (original defendants) appealed to this court on four grounds of appeal.
It is noteworthy that although parties were not represented by counsel at the trial court, both sides engaged the services of legal counsel at the lower court and in this court. The respective counsel filed and exchanged briefs of argument. In his brief, learned counsel for the appellants Mr. N. Usman, formulated two issues viz:-
“1. Whether on the face of the court of 1st instance’s copy of proceedings there are sufficient grounds to have the said judgment confirmed under Islamic Law.
- Whether the lower court (Sharia Court of Appeal) was right under Islamic Law in setting aside the decision of the Court of 1st instance.”
Learned counsel for the respondent framed exactly same issues with the appellant.
In his submission on issue No.1, learned counsel for the appellants argued that the decision of the court of 1st instance ought to have been confirmed by the lower court having regard to the claim before the court of 1st instance and the evidence adduced. The two witnesses called by the appellants were able to establish to the court the fact that the houses in question were given out as gifts to the appellants and the respondent could not impeach them or bring any sustainable objection under Islamic Law. He cited and relied on Ihkamul Ahkami page 254 on gifts; the case of Garba v. Dogon-Yaro (1991) 1 NWLR, (Pt. 165) 102. The requirement for the proof in law has been satisfied by the lower trial court and its decision ought to have been affirmed. It is learned counsel’s submission further that the trial court complied as well with the requirement of oath administration over the property of a dead or absent person by the claimant before entering judgment. He cited and relied on Ihkamul Ahkami page 50. He submitted that three of the appellants subscribed to the said oath.
On the 2nd issue, learned counsel for the appellants argued that the lower court left the evidence of witness No.2 of the appellants to be admissible and in line with the provision of Islamic Law Procedure. The evidence of witness No.2 corresponded with the appellant’s claim of gift though he could not give precise year when the gift took place. The evidence of witness No.1 could safely be relied upon by the trial court as there was no dispute as to number of years when the gift took place. This was not in issue at all.
Secondly, it is the submission of learned counsel for appellants that the appellants had been in possession which is another evidence in favour of the appellants.
Thirdly, the appellants in addition, subscribed to oath. The principles of fair hearing, learned counsel argued, were complied with.
Learned counsel concluded his submission on this issue by stating that it is a cardinal principle of Islamic Law that any evidence adduced by witnesses not impeached by the other party must be acted upon by the court. The refusal of the lower court to so act amounts to miscarriage of justice on the part of the appellants. The lower court determined issues that were not before it.
Learned counsel for the respondents Mr. M.M. Mahboub submitted on the 1st issue that the learned Kadis of the lower court were absolutely right in setting aside the decision of the trial court as well as order of retrial. He argued that the disagreement in respect of the period when the gift was made between the one mentioned by the 1st appellant and that of DW2 is so fundamental that it goes to the root of the da’awah itself as the disparity between the two is extremely wide. For an evidence to be admissible, he argued further, it should be in total harmony and agreement with the da ‘awah that any addition or subtraction in the testimony will render the testimony, null and void unless and of course the witness is Mubaraz. Learned counsel cited and referred to Ihkamul Ahkami page 3; Siraju Al-Saliki vol.2 page 208.
Learned counsel for the respondents argued further that the attribute of Mubara (sic) to any individual is a matter of evidence. There is no way a court can presume such suo motu. On the issue of character of a witness, learned counsel referred this court to Bahja vol. 1 pages 90 – 91: vol.2 page 107. Another discrepancy in the testimonies of DW2 was on the actual locations of the said houses. Another point raised by learned counsel is that the trial court denied the remaining plaintiffs fair hearing in the sense that it only allowed the first plaintiff to either discredit or cross examine the witnesses. He argued that the trial court failed to consider (impeachment) by the first plaintiff against the character of DW1 which if proved will be capable of rendering his testimony inadmissible. Learned counsel referred this court to Bulghat Al-Saliki Commentary on Aqrabul Masaliki vol.2 page 314: Khirshi, Commentary on Mukhtasar al-khalil. Vol.5 page 195.
Learned counsel concluded his submissions by stating that all the authorities advanced by the counsel to the appellants are completely irrelevant and out of con. He urged this court to dismiss the appeal and affirm the lower court’s decision.
I think it is very pertinent to make some observations before going into the appeal proper. The present appellants were the respondents at the lower court and defendants at the trial court. However, by their response to the complaints placed by the plaintiffs before the court, they automatically became the plaintiffs and the plaintiffs (original) became the defendants. Such a thing seldom happens under Islamic Law dispensation. See Almayyarah Commentary on Tuhfatul Hukkami, vol.1 page 18. By their new position, therefore, the (defendants) plaintiffs have the onus on their shoulder to prove that the houses in their possession were given to them as gifts by their late father. The findings of the trial court on the gifts read as follows:-
“I made an order for the defendants of defendant (sic) their respective gifts, in which they called 2 witnesses namely: Alh. Uba Abdullahi Makwarari, Alh. Isa Ali Deneji who all testified accordingly thereby proving the defendants title to the said houses. And upon cross examination, nothing was adduced to discredit their testimony. Consequently, upon the strong testimony and evidence adduced by the defence witnesses I am strongly convinced (sic) beyond balance of probability that the gifts were made to them by their father. And the court has exhausted (sic) the claimants in asking them to bring witnesses to prove their claim, they have finally said that they have no any other witness.”
The trial court made another important finding as follows:”
Alhaji Aminu, Sani, Rabiu and Mudassiru are all in possession and occupying same … ”
Thus, possession by the plaintiffs was established by the trial court.
Now, as the claim relates to a person who is already dead, the trial court, in consonance with the requirement of Sharia, requested the plaintiffs to subscribe to judicial oath. Sani, (2nd appellant), Rabiu (3rd appellant) and Mudassiru (4th appellant) accepted to take the oath and did indeed take the oath. Alhaji Aminu, (1st appellant) however refused to subscribe to the oath. The trial court went ahead to confirm the gifts to the 2nd, 3rd and 4th appellants by their father but gave (option) discretion to the 1st appellant to either swear or the court would distribute his claimed house to all the heirs to their late father, (it should be noted that nowhere has it been indicated that the 1st appellant swore to the oath put by the trial court). It is this decision that the lower court set aside. Some of the major reasons relied upon by the lower court in setting aside the trial court’s judgment include inter alia:
(1) That there were inconsistencies in the evidence of the two witnesses.
(2) The respondents had objected against the judgment of the trial court because that court relied on evidence which did not tally with the claim.
(3) The evidence of PW1 (DW1) Alh. Isa was incomplete as he had added something on Aminus claim and he did not specify the time of the gifts. Again PW1 was not the type of witnesses who were unchallengeable (Mubarraz).
(4) Other legal heirs to the deceased did not appoint representatives.
(5) The respondents were not afforded opportunity to raise objection against the witnesses.
These were the main reasons encapsulated in the respondents’ grounds of appeal at the lower court.
In formulating his issues, learned counsel for the respective parties addressed this court exhaustively. I shall now consider the Issues.
After having had a look again on the issues formulated by the appellants, I hardly find any distinction between the two issues. I shall proceed therefore to determine the second issue, which, in my opinion, takes adequate care of the 1st issue.
Under Islamic Law dispensation generally, a judgment is set aside under the following circumstances:
(1) Where it is in conflict with any provision of the Quran.
(2) Where it is in conflict with the provision of any authentic Tradition of the Prophet (PBUH).
(3) Where it is in direct conflict with ljma.
(4) Where it conflicts with Qiyas.
(5) Where it is against popular view of the official Mazhab applicable in the area of jurisdiction or against sound reasoning.
(6) Where the Judge lacks jurisdiction.
(7) Where it was obtained under fraud, deceit etc.
On the other hand, where the decision of a court operating Islamic Law Principles was based on cogent, concrete and uninmpeached evidence and the decision was based on known Sharia principles, such decision has to be implemented. It is stated in the TUHFAT:-
Translation:
Where (the Judge) has arrived at a just decision, there shall be no doubt as to executing it.
See: Ihkamul Ahkami, Commentary on TUHFAT, page 23. It is stated further in the Commentary as follows:-
Translation:
That a surviving serving Judge’s (writing) judgment to another Judge must be implemented and executed and there is no room for setting it aside.
See: Ikhamul Ahkami, ibid.
It is clear from the record that the appellants called two witnesses who were able to establish to the court the fact that the houses in dispute were given to the appellants by their deceased father. None of the respondents was able to successfully impeach the evidence given by these witnesses. The trite position of Islamic Law is that a court of law is bound to act on this type of claim on the evidence adduced by the plaintiff. It is thus, prohibited for a Judge to deliver his judgment when he has no evidence placed before him through any of the known forms of testimony/admission. See: Ikhamul Ahkami pages 13 – 14. Again, this claim was premised on gift of landed property from father to his children. This is lawful, moreso, when peaceful enjoyment/possession was taken by the donees. It is explicitly stated in the Ihkamul Ahkami as follows:-
Translation:
If a father makes a gratuitous gift of a thing to his sons big and small who was introduced by the father and the big son takes practical/actual possession of the thing given to the small one, the gift is complete. But where the big son takes actual possession of the thing given or (where even) he did, not take possession and the father (donor) dies the whole gift becomes void. On the other hand, where the big son takes possession of the thing given to him and the one given to his small brother or vis-versa, the gift is complete in both situations.
See further Al-Kashnawis Ashalul Madariki, vol.3 page 88.
Thus, a gift becomes valid in law once it is validly made and the donee has taken possession thereof.
In considering the tenor of the points raised by learned counsel for the respondents in his brief to wit:-
(a) That there was disagreement in respect of the period when the gift was made,
(b) That the evidence given by the witnesses called by the appellants were not in harmony with the Da’awah i.e. claim of the appellants,
(c) The witness were not mubarraz
(d) That other co-defendants were not afforded opportunity to cross-examine the witnesses.
It is pertinent for me to examine these points closely in relation to the record of appeal before me.
Firstly, about the period of the gift, the first appellant claimed that the house in question was given to him some 16 -17 years ago. The second appellant claimed eight months ago; the third appellant claimed the gift was made about 5 – 6 years ago and the fourth appellant claimed the period of the gift to be nine months ago.
The first witness stated that it was up to 31 – 32 years ago when the gift was made (i.e in respect of 1st appellants given house).
He stated further that the father gave the house in the hands of Mudan (4th appellant) as a gift up to five years ago when the gift was made. (see p.4 of the record) i.e English translation oft1ial court’s judgment. Nothing was said on the period of gift on the 2nd and 3rd appellants.
The second witness testified that he knew the houses in question. As for the 1st appellant, the gift was made, to him 16 -17 years ago; as for 2nd and 3rd appellants, the gift of their respective houses was made to them by their deceased father about 4 – 5 years ago. He said nothing about the period of the gift in respect of the 4th appellant.
-From the various dates stated by the appellants and their witnesses, the periods of the gifts were never disputed by the respondents. Issues were not joined on them. There was no duty on the court to dwell on non – issues.
In Islamic law, silence is an honourable way of approval (tacit approval). The jurisprudential jargon is rendered as follows:-
Translation
Silence means acceptance. Even if, for academic purposes, there was denial by the respondents and not by their counsel, at least the evidence of PW2 (DW2) was in accord with the 1st appellant’s claim of 16 – 17 years and 2nd and 3rd appellants 5 – 6 years. I cannot see how this can occasion a miscarriage in this claim. The main issue in contention was whether the gift was made or not.
In the Fatawa al Sughurah, cited by the author of MUEENUL HUKKAMI, Abu Zarr is reported to have stated that differences in time of purchase of a house is immaterial. See page 106 of MUEENUL HUKKAMI Fi ma Yataraddadu bainal khasmani minal Ahkami.
On the second point i.e addition or subtraction in the testimony. The addition or subtraction had to do with the issue of the period of the gifts. The principle of the law is that when there is dispute between the contending parties on an issue, the court shall refrain to involve itself in any unnecessary addition or subtraction that might be done by any witness called by the parties as the issue in contention has been agreed upon by the parties. As indicated earlier, the respondents agreed tacitly, to the periods of the gifts stated by the appellants. The trial court was thus right in refraining to say anything on such discrepancies.
On the issue of the witnesses not being Mubarraz (i.e those who excel others in piety),the law is very trite that he who claims must prove. The claim of not being Mubarraz was made by the respondents. They were under duty to prove that. That Proof was not forthcoming from them. The claim was unsupportable and goes to no issue at all. This is even given support by learned counsel for the respondents in his brief of argument page 4 (paragraph 3) thereof.
The forth point raised in the respondent’s brief touches on the principle of fair hearing. That the trial court denied the remaining plaintiffs (defendants) fair hearing to cross-examine the witnesses.
I agree with learned counsel for the respondents that part of what makes a hearing fair under Sharia is the opportunity afforded by the parties to cross-examine witnesses who testify.
It is not in dispute in this appeal that from the outset, the trial court ascertained what was the respondent’s complaint. The 1st plaintiff then stated the complaint and mentioned all the heirs involved. All the heirs except the appellants agreed with the 1st plaintiff. As for those who were children, one Hajiya Umma represented them (page 2 English translation of the trial court’s proceedings).
One Sadiya requested the permission of the court, which it granted so that Mujtapha could represent her. One Hasiya also requested that Hajiya Binta should represent her in the case. The trial court accepted the representation.
Now from what transpired in the record before this court, the trial court granted opportunity to the plaintiffs to cross-examine the witnesses. An example is on page 4 of the English translation of the trial court’s record where it asked the “plaintiffs” after completion of evidence by PW1:-
“Court to the plaintiffs: Did you hear what the witness said, did you agree?”
Then Mujtapha answered as follows:-
“Mujtapha: we did not agree because
The same applied in case of the 2nd witness where the trial court asked: –
“Court to Mujtapha and his co-heirs: Did you hear what the witness testified, what are responses?”
Then Mujtapha replied to the questions. It is beyond dispute, and that is the essence of inference (ISTINDAT) that Mujtapha was answering all the questions and putting the cross-examination to the witnesses on behalf of the remaining legal heirs. This is supported by their unanimous agreement with Mujtapha. None of them showed any discontentment. Thus, in a situation where parties by consent agree with what one of them does that will amount to acquiescence with which each and everyone of them is bound and shall not be permitted to resile.
I am quite satisfied that the trial court did the right thing and its decision is unassailable. I allow the appeal. I set aside the judgment of the lower court. The only point I must emphasize is that since the 1st appellant refused to swear to an oath to confirm what his deceased father did (and as he is not alive), he ought not to be given any liberty to elect whether to swear or not. His acclaimed house must fall into the estate of the deceased and be distributed to the late Alhaji Garba Safeti’s legal heirs. Litigation is not seek and hide game. It is a process of (tahaquq) certainly which, confers on a rightful person what he justifiably claims and establishes. Thus, as Alhaji Aminu (1st appellant) refused to swear to an oath, the lower court is to distribute his house to his deceased fathers heirs.
I order each party to bear its own costs in this appeal.
Other Citations: (2006)LCN/1961(CA)
