Alhaji Haruna Usman V. Umaru Garba Kusfa & Anor (1992)

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MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the judgment of the High Court of Kaduna State sitting in its appellate jurisdiction delivered in Zaria on 13/12/89 which affirmed the earlier judgment of the Upper Area Court, Zaria.

The case of both parties leading to the present appeal is succinctly summarized in the judgment of the learned Judges of the Kaduna State High Court, Ibiyeye and Coomassie J. J. at page 44 of the Record of Proceedings as follows:-

“The 1st Respondent who was the plaintiff in the trial Upper Area Court Zaria sued both the appellant and the 2nd Respondent for the recovery of his farmland which his father entrusted to the 2nd Respondent for him (the 1st Respondent) and which the 2nd Respondent in turn gave out to the appellant on loan.

The 2nd respondent, admitted that the farmland in dispute was entrusted to him by Garba, the father of the 1st Respondent and that he in turn gave it to Usman Kosha, the deceased father of the Appellant.

The appellant denied the assertion of both Respondents and raised the issue of res judicata in the sense that five separate cases had been heard on the same farmland. Aside the said series of cases, the Appellant stated that it was Muhammadu, the late village head of Wuchichiri, who gave him “a wild vacant land” to cultivate and that he built a house on the land, cultivated it and had lived there peacefully for upwards of thirty seven years. The 1st respondent called seven witnesses in support of his claim while the Appellant called four witnesses to back up his assertion.

At the close of the trial, the learned Upper Area Court Judge gave judgment in favour of the 1st Respondent.

It is against this judgment that the Appellant appealed to the Court on the general ground. He subsequently sought and got leave not only to file and argue five additional grounds of appeal but also to call additional evidence.

After hearing the parties, the High Court dismissed the appeal and upheld the decision of the trial Upper Area Court, Zaria. Dissatisfied with this judgment, the Appellant has further appealed to this court.

From his grounds of appeal the appellant has raised the following 3 issues for determination in this appeal which agreed with those raised by the Respondent in his brief. These are:-

1. Whether the past judgments of the High Court of Kaduna State in Appeals Nos NCH/50A/74A/75 and KDH/12A/77 which were admitted by the High Court on Appeal as part of the proceedings from the Upper Area Court Zaria constituted Estoppel per rem judicatam or any of its species as to have resolved to finality any or all of the issues sought by the parties to the proceedings that has directly led to this Appeal?

2. Whether the proceedings and judgment in NCH/74A/75 (in particular) constituted issue estoppel between the appellant and the 2nd respondent as to debar the 2nd respondent from raising the issue of loan between him and the appellant and if answered in the affirmative whether there is any nexus or cause of action between the 1st respondent and the appellant over the said disputed farmland?

3. Whether the trial Court whose decision on the evidence was affirmed by the High Court correctly applied (if at all) the principles of Islamic Law to the assessment of the evidence before it?

Both counsel adopted their respective briefs filed herein on behalf of their clients. However, each counsel addressed us viva voce in order to highlight some points raised in the brief.
Learned counsel for the appellant Mr. J. B. Daudu in respect of Issue No.1 referred us to page 22 of the records which contain the application to tender the 3 judgments relied on for the plea of estoppel as part of the proceedings in the lower court. He referred specifically to the affidavit in support of the application on pages 22-25 of the records particularly paragraphs 8, 10-19 which show that the land in dispute are the same and the parties are the same.

On Issue No.2, learned counsel to the appellant submitted that apart from the minor contradiction observed by the court both parties have called witnesses to prove their claims hence the only way open to the High Court under the Sharia is to have called upon the person in possession to take the oath rather than talking of common law principle of balance of probability. Thus, counsel submitted in the alternative that if the issue of Estoppel fails the court should adopt the Islamic Law principle of offering the oath.
Learned Counsel for the appellant urged the court to allow the appeal.

By way of reply, Mr. O. Rapu for the Respondent after adopting his brief submitted in respect of Issue No.1 that the affidavit referred to by Learned Counsel to the appellant is not a substitute for the record of proceedings of the 3 judgments tendered in the proceedings.

On issue No.2, learned counsel submitted that even if the case was tried under the Islamic Law principle, the Respondent had established his claim based on Islamic Law. Learned Counsel for the respondent urged the court to dismiss the appeal. Mr. Daudu for the appellant said he had nothing to add.

I have considered the submissions of both sides on Issue No.1 relating to the plea of Estoppel per rem judicatam vis-a-vis the records and the prevailing law.
As a starting point it must be emphasised that the plea of Estoppel per rem judicatam is common to both the common law and Islamic Law. This was judicially confirmed by this panel of the Court of Appeal in the case of Balan Ayye & 10 Ors. v. Musa Yar’Adua (1991) 8 NWLR (Pt.210) 464 at page 466 paragraph 4 as follows:

“The multipurpose legal principle of estoppel per rem judicatam is common to both the common law and Islamic Law. However, the procedure or method employed by Islamic Law differs from that employed by the common law even though the end result seems to be the same, that is, that a case that has been judicially decided cannot be relitigated again.”
The court at page 473 of the said judgment brought out the difference in procedure in the method employed by Islamic Law per Okunola, J.C.A. at paras. C-D thus:
“According to Zeys, the maxim Res Judicata pro veritate habetwe is replaced in Muhammadan law by the authority of the well judged judgment. What this means in Islamic law is that no fresh judgment can be pronounced on any case that has been judicially decided (i.e. based on the text of the law) unless both parties to the litigation conceal the fact of a previous judgment or the Judge himself exceeds his power. In other words a judgment under Islamic Law is conclusive with reference to the text of the law on which it relies. Thus, the issue of finality of judgment which forms the basis of the doctrine of Res Judicata is common to both the common law and Islamic Law. See Ruxton on Maliki law pages 286-288; Jawahril Iklil, Commentary on Muhtassar of Sheikh Khalil Vol. II in Chapter on Judicial Procedure at page 221.”

Apart from this difference, conditions for the application of this doctrine are the same under both systems. These are stated at page 465 para.3 of the said judgment as follows:-

“Before the doctrine of estoppel per rem judicatam can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the action in which the plea is raised.”

The question to ask is whether these conditions have been satisfied in respect of the 3 judgments relied upon for the plea of estoppel in the instant appeal. The learned counsel to the appellant made an attempt to satisfy these conditions when he referred us to the affidavit in support of the application on pages 22-25 of the records particularly paragraphs 8, 10-19 which shows that the land in dispute are the same and the parties are the same. He did not tender the records of proceedings in respect of the said judgments at the court below. This is why I said he merely made an attempt to fulfil the conditions. I agree with the submission of the learned counsel in this regard that the affidavit referred to by learned counsel to the appellant is not a substitute for the records of proceedings of the three judgments tendered in the proceedings for purposes of satisfying the conditions for grounding a plea of Estoppel per rem judicatam. In consequence, I hold that the three judgments so tendered have not been sufficiently linked with the instant appeal to justify a plea of Estoppel per rem judicatam. Since the plea of Estoppel has failed I shall now consider Issue No.2.

Issue No.2:

Learned Counsel to the appellant has urged the court in the alternative to adopt the Islamic Law principle of offering the oath to the appellant as the person in possession. Since both parties apart from minor contradictions observed by the court have called witnesses to prove their claims. By way of reply, learned counsel to the Respondent contended on this issue that even if the Islamic Law procedure is followed the respondent should be awarded the disputed property since he had duly established his claim under the law. I have considered the submission of both sides vis-a-vis the records and the prevailing law. Like in the earlier appeal decided by this court this morning in Alhaji Agebu v. Shehu Bawa CA/K/91s/90, it will appear that the submissions in the instant appeal also boils down to burden of proof in Islamic law particularly where a plaintiff can show that his landed property which is in possession of the defendant is merely on loan. In the instant case the Plaintiff/1st Respondent called 7 witnesses to back his claim for the recovery of his farmland which his father entrusted to the 2nd Respondent for him and which the 2nd Respondent gave to the appellant on loan. The appellant also called 4 witnesses to buttress his assertion that the late village head of Wuchichiri gave him the disputed land as a virgin forest which he had been cultivating for upwards of 37 years.

The question to ask is what the court should do in the circumstances of this case. It is pertinent to observe that this court had occasion to answer this question in the case of Sani & anor. v. Bature (1961-1989) 1 SLRN 248 p.254 per Maidama, J.C.A. (as he then was) as follows:
“A plaintiff who can show that his house which is in possession of the defendant is merely on loan or for lodging or tenancy for life will not be precluded from claiming it by mere expiration of the period of prescription.”
In the light of the foregoing, I hold that since the Plaintiff/Respondent has been able to prove that the disputed farmland in possession of the appellant herein was his and was merely on loan to the appellant, I find no basis in law for disturbing the findings or the two lower courts. In the circumstances I hold that this appeal lacks merit and it is dismissed. Consequently, the judgment of the High Court of Kaduna State sitting in its appellate jurisdiction in Suit No. KDH/25C/90 delivered in Zaria on 13/12/89 which affirmed the earlier judgment of the Upper Area Court, Zaria is hereby affirmed. The ownership of the farmland in dispute is awarded in favour of the Respondent who is entitled to the cost of this appeal which I assess as N500.

Other Citations: (1992)LCN/0114(CA)