Alhaji Inuwa Abubakar V. Dudu Abdu Gama (1998)

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OKUNOLA, JCA

This is an appeal against the judgment of the Kano State Sharia Court of Appeal holden in Kano delivered on 30-11-94.

The facts of this case briefly put were as follows:

The respondent herein as plaintiff sued the appellant herein as defendant at the Sahon Gari Area Court claiming as per page 7 of the records as follows:

“I am suing Alhaji Inuwa seeking the help of the court to receive the house of my husband in his possession which he has bought from M. Sani Gama for the sum of 190pounds equal to N380 since about 24 years ago. The said house is situate at Gama Quarters and it has neighhours as follows: East – Alhaji Garba: West-M. Sanni: South – Road: North – Alhaji Aminu Mai Gwanjo.”

When the parties were invited by the court and the plaintiff was asked to state her claim in the presence of the defendant, she repeated on the same page of the records thus:

“I am seeking the court to divide the inheritance of my husband Sgt. Audu who has died about a month and a half. He has left behind me Dudu as his wife and his four male children and one female. He has no father or mother, and he has a house at Gama and I have forgotten the number of the house but the said house is in possession of his brother the defendant. Myself I am living in the house with my husband up to the time he died.”

When confronted with the claim by the court the defendant denied saying that the house belonged to him as he bought it from A. Sani Gezawa for 195pounds with title document No. 7248/73 signed by Waje District Head on 25 -4- 67. He said out of the proceeds of sale the plaintiff’s husband gave him 80pounds to keep for him, claiming that the sale took place in 1967. On being confronted with the defendant’s defence, the plaintiff confirmed knowing that when her husband was away for the Biafran Civil War he sent 350pounds to the defendant/appellant to buy him a house which the defendant did. The court conducted a visit to the house in dispute with the parties. Thereafter, at the instance of the court the plaintiff called three witnesses namely, Muhammadu Yahusa aged 70 years (PW1), Reuyanu Gamaaged 55 years (PW2) and Garba Gama aged 65 years (PW3). All these witnesses confirmed the claim of the plaintiff. The defendant also called witnesses to support his counterclaim.

They were Alhaji Sani Gezawa aged 65 years (DW1) and Amadu Ringim aged 57 years (D\V2). After the close of evidence of witnesses for the parties, the Area Court reviewed the evidence of both parties and in the end entered judgment in favour of the defendant/appellant and confirmed the disputed house to the defendant/appellant. Dissatisfied with this judgment, the plaintiff/respondent appealed to the Sharia Court of Appeal Kano. After going through the records and reviewing the cases of both parties at the lower court the Sharia Court of Appeal. Kano (hereinafter referred to as the SCA) allowed the appeal and reversed the decision of the Area Court. The Sharia Court of Appeal ordered the Area Court to divide the disputed house into two equal parts and to give one half to the appellant and the other half to the respondent upon each party subscribing to an oath.

Dissatisfied with this judgment the defendant/appellant (hereinafter referred to as the appellant) appealed to this court on four original grounds of appeal.

From the four grounds of appeal filed in this court, the appellant has formulated the following three issues for determination in this appeal. viz:

“1. Whether the appellant and respondent have equal number of witnesses.

2. Whether to take an oath in respect of the respondent’s claim was proper.
3. Whether the proper Islamic Law procedure was followed by the lower courts in arriving at their respective decisions.”

The respondent, who was not represented by a counsel also formulated three issues which though couched in a different language are similar to the three issues formulated by the appellant. These are:

“1. Whether the Appeal Court arrived at its decision correctly when it held that each of the respondent and appellant has equal number of witnesses.

2. Whether being asked to subscribe to an oath is proper under Islamic Law.
3. Whether both the trial and appeal courts have followed the proper Islamic Law procedure in arriving at their respective decisions:’

Since both sets of issues are similar. I shall adopt the issues formulated by the appellant for purposes of this appeal. Learned counsel adopted and relied on the appellant’s brief filed on 28 -6- 95 on behalf of his client. Mr. Umoru Mohammed who was holding S.A. Aliyu’s brief for the appellant said he had nothing to add. He urged the court to allow the appeal.

The respondent on the other hand being undefended thumb-impressed a document titled respondent’s brief. When asked questions about the purported brief she seemed not to understand the contents of the brief. She there and then informed the court that she was adopting and relying on her case as presented in the lower courts as well as the summary of the respondent’s brief which at stated that a documentary title cannot supplant a witness under Islamic Law. It further stated that the death of the respondent’s husband and the capacity of the respondent had not been challenged or disputed al the lower court. She urged the court to dismiss the appeal.

I have considered the submission of learned counsel to the appellant orally as well as contained in the appellant’s brief. I have also considered the case of the respondent as presented in the lower court as well as in the summary at page 3 of her thumb impressed brief. In my view the arguments of both parties boil down to one principal issue viz: Whether the proper Islamic Law procedure was followed by the lower courts in arriving at the decision of the Sharia Court of Appeal particularly those relating to the issue of witnesses called by both parties

and the process of Oath taking.

On this principal issue learned counsel to the appellant by way of summary at page 5 of the appellant’s brief submitted that the appeal be allowed for the following reasons:

1. That appellant had one witness with the title documents plus possession to complement his proof of title to the property in dispute.
2. That death of the appellant’s brother as well as the capacity of the respondent was not proved by evidence before the lower courts.
3. That there was no need for the appellant or the respondent to subscribe to any oath and even if there was, the consequence of the same was not made known to parties as not all the alleged heirs of the appellant’s brother were made to swear.

As reiterated earlier, the respondent by way of reply stated at page 3 of the thumb-pressed brief that the appeal should be dismissed for the following reasons:

1. The appellant had not proved anything different from what obtained at the lower courts. A documentary title cannot supplement a witness under Islamic Law.
2. The death of the respondent’s husband and the capacity of the respondent had never been challenged or disputed before the lower courts.
3. The decision of the Khadis of the Shari a Court of Appeal is unassailable and proper, hence it should be affirmed.”

I have considered the arguments of both parties on this principal issue. I shall now give my views on the principal issue particularly the three sub issues raised in the appellant’s brief.

The whole case here is subsumed under whether the proper Islamic Law procedure was followed by the lower courts in arriving at their decisions. Learned counsel to the appellant argued supra that the proper procedure had not been followed while the respondent contended that the proper procedure had been followed. To determine which party is right, it will be necessary to summarise the procedure adopted.

The plaintiff/respondent called 3 male unimpeachable witnesses who confirmed her claim. The defendant/appellant also called 2 witnesses to back his counter-claim. Lower court entered judgment in favour of the defendant/appellant.

The Sharia Court of Appeal reversed the decision and ordered the Area Court to divide the house into two equal parts between the parties upon each party subscribing to an oath.

At the lower court the plaintiff/respondent proved her claim with two unimpeachable male witnesses, who (as one of the witnesses was adjudged impeached by the Sharia Court of Appeal) confirmed that the farmland belonged to her late husband who gave money to his brother to buy the house for him while going on with the Biafran War. Since under Islamic Law procedure once two male unimpeachable witnesses have testified to confirm the plaintiff’s claim such claim is regarded as proved. The defendant needs not be called to say anything. See Takurwa v Kwa-Kwa (1992) 2 NWLR (Pt.224) 449 p.457. See also Hada v Malumfashi (1993) 7 NWLR (Pt. 303) 1 S.C. p. 17 paras. E-G. Thus, since the plaintiff/respondent has discharged the burden of proof the lower Area Court ought to have entered judgment in her favour. However, the lower Area Court entered judgment in favour of the defendant/appellant. It needs to be pointed out that under Islamic Law, in a claim for immovable property such as a house or a parcel of land in the possession of the defendant who denied the plaintiff’s claim and asserted that he came into possession after he purchased it from the claimant or his heirs, the onus of proof of such purchase will be placed upon him. This explained why the trial Area Court allowed the defendant to call evidence in support of his counterclaim.

However, from the review of the evidence by the Sharia Court of Appeal with which I agree, the defendant/appellant failed to prove the purchase of the house as he claimed as one of his two male unimpeachable witnesses was successfully impeached. The consequence of such a failure under the Sharia is that where a defendant fails to prove the purchase, the claimant will be entitled to judgment after he has subscribed to the oath of successful rebuttal. See Yaro Baduku v. Sani Andu CA/K/2/86 (Unreported Appeal) delivered by the Kaduna Division of this Court.

In the circumstance, the proper procedure was followed by the Sharia Court of Appeal in calling on the respondent herein to take the oath of successful rebuttal with the disputed property being conferred on her and not as the SCA did by asking both parties to subscribe to the oath and sharing the house between both parties.

In sum, this appeal fails and it is dismissed. The judgment of the Kebbi State Sharia Court of Appeal is set aside. In its place I enter judgment in favour of the respondent as an heir of her late husband Sgt. Audu. The trial Area Court should administer the oath of successful rebuttal on the respondent. The trial Area Court should divide the house among the surviving heirs of the late Sgt. Audu. In view of the family nature of this case, I make no order as to costs.

Other Citations: (1998)LCN/0447(CA)