Mallam Nasi & 2 Ors V. Zaida Haruna (2001)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A. 

This is an appeal against the judgment of the Sokoto State Sharia Court of Appeal holden at Sokoto wherein the earlier decision of the Gwadabawa Upper Area Court was affirmed.

The facts of this case briefly put were as follows:

The respondent herein as plaintiff sued the appellants herein as defendants claiming her late father’s farmlands left as trust with the District Head when he was embarking on a journey on the condition that when he returned from the journey he would take back the farmlands but if he should die same should be returned to his heirs.

In the end, the father of the plaintiff/respondent died and he did not return. The appellants herein were in possession of the farmlands.

When the plaintiff/respondent requested for the farmlands which formed the estates of her late father, the appellants herein refused to return the farmlands claiming that they were allocated same by the District Head, hence this suit. The plaintiff was invited by the trial Gwadabawa Upper Area Court (hereinafter referred to as the UAC) in proof of her claim. The plaintiff/respondent called witnesses who confirmed her claim. On the other hand, the defendants/appellants could not produce witnesses in support of their counter-claim. They merely confirmed that they inherited the farmlands from their parents who took same from the District Head who kept same for safe-keeping for the plaintiff’s deceased father. In the end, the trial UAC affirmed the disputed farmlands to the plaintiff/respondent.

Dissatisfied with this decision of the UAC the defendants/appellants appealed to the Sokoto State Sharia Court of Appeal holden at Sokoto (hereinafter referred to as the SCA) on the ground of Hauzi, since they had been in possession of the farmlands for over 47 years. The SCA invited the parties for their submissions.

The SCA went through the proceedings of the UAC and observed that the appellants herein did not call any witness despite the invitation to call witnesses but merely relied on long possession which according to the UAC is defeated by the evidence of trust given by the 3 male unimpeachable witnesses of the plaintiffs/respondent. The SCA after hearing the parties’ addresses and going through the records of the proceedings of the UAC and the proceedings at their court upheld the decision of the UAC as same was in line with the principle of Islamic law. The SCA dismissed the defendants/appellants appeal and confirmed the farmlands to the plaintiff/respondent.

Dissatisfied with this decision of the SCA the 1st defendant/appellant appealed to this Hon. court on the following grounds of:

1. The Upper Area Court Judge did not allow me to present my witnesses.
2. I made strong objections on the testimony given by the respondent’s witnesses, but the errand Judge went ahead to deliver judgment on that.
3. I was not given chance to defend my claim both at lower court and appellate court.
4. When judgment was delivered at UAC Gwadabawa I was not in the court.
5. Oath was not administered on the respondent at UAC contrary to what was stated in the lower court judgment copy but Sharia Court went ahead to uphold the lower court decision.
6. I have genuine witnesses to present; but I was not given chance at both court to do that.
7. All what transpired on the UAC judgment copy was not true. The erred Judge only sat and framed the copy as he likes.”

Since both parties were unrepresented, they did not file any brief of argument. Thus, on 24/4/01 when this appeal came before us, the parties who appeared in person were called upon individually to present their case. Consequently, the appellant who appeared in person adopted and relied on his case as presented before the Upper Area Court and the Sokoto State Sharia Court of Appeal as contained in the records of proceedings including his notice and grounds of appeal.

He said he had nothing to add but urged the court to allow the appeal.

By way of reply, the respondent who also appeared in person also adopted and relied on her case as presented at the two lower courts as contained in the records of proceedings including the notice and grounds of appeal. She urged the court to dismiss the appeal.

I have considered the parties arguments viz-a-viz the records and the prevailing law. It is my view that their arguments boil down to whether the trial Upper Area Court and the Sharia Court of Appeal which endorsed its decision followed the correct procedure in Islamic law in awarding the disputed farmlands to the plaintiff/respondent who called 3 unimpeachable male witnesses to prove that her late father kept his farmlands for safe-keeping with the District Head as against the appellant’s unproved case of allocation to his parent by the District Head and inheritance from the parents for over 47 years who called no witness in proof of such counter-claim. I have stated in detail the facts of this case so as to bring out the issues in controversy since both parties were not represented save in our Court.

I have considered the arguments of both parties viz-a-viz the records and the prevailing law. In my view their arguments boil down to the following basic issue of whether the proper procedure regarding burden of proof in Islamic law had been followed? It will be necessary to find out what this procedure is. This had been briefly summarized by the Supreme Court in Hada v. Malumfashi (1993) 7 NWLR (Pt.303) 1 P.17 per Wali JSC thus;

” …Under Moslem law, unlike the English law, parties are not competent witnesses in their respective cases, hence their statements in court would not be regarded as evidence. But something akin to statement of claim and defence.

The plaintiff or claimant is required to state his case and it is only when the plaintiff or claimant has stated his case that defendant will then be called, asked and ordered by the court to respond thereto and make an answer to, confess or deny the plaintiff’s claimant’s claim. If the defendant admits the claim judgment can be entered for the claimant.

However, if the defendant denies the plaintiffs or claimant’s claim the plaintiff or claimant shall then be called upon to adduce evidence in proof of his claim. But the court will not enter judgment in favour of any of the litigants until after the claimant has stated his case.”

The Supreme Court laid down the procedure for discharging burden of proof under Islamic law at paras D-E of page 17 supra as follows:

“The general principle of Islamic Law relating to claims in civil matters in both movable and immovable property is that proof is complete by:

(a) evidence of two male unimpeachable witnesses; or

(b) evidence of one male witness and two or more female unimpeachable witnesses; or

(c) evidence of one male or two female witnesses with the claimant’s oath in either case.”

Thus, in the instant case, since two male unimpeachable witnesses testified to confirm the plaintiff/respondent’s claim, such claim is regarded as proved under Islamic law and the defendant needs not be called upon to say anything. In the circumstance, I hold that the trial Upper Area Court was therefore in order when it entered judgment in favour of the plaintiff/respondent. In fact, the court should have entered judgment at that stage in favour of the respondent but it went further to inform the defendant/appellants to present witnesses in support of the appellant’s claim which they failed to produce. This is an unnecessary surplusage. It is only when both parties are in possession that such a procedure is followed. See Hafsatu Abduliahi v. Haruna Adamu (unreported) appeal No. CNK/71/S/92 decided by this panel of the court on 10/12/93.

Since the parties at every stage of their case had been dwelling on the issue of the defendant having the farmlands in dispute in his possession for safe-keeping, it needs to be stressed here that under Islamic law the issue of Hauzi (prescription) does not affect a property in possession of another, no matter how long the property’s in possession of another, it is on loan, pledge or for safe keeping in such a situation, the defence of Hauzi is not open to the defendant to plead.

See Musa ldrisu Gulma v. Ahmadu Bahago (1993) 1NWLR (Pt.272) 766 CA. See also Hamadu Hunare v. Yaya Nana & Anor (1996) 1 NWLR (Pt.425) 381; Gwabro v. Gwabro (1998) 4 NWLR (Pt.544) 60 at page 71 paragraph G.

This principle was also touched upon by the appellate bench of this Court in Musa Dauda v. Magajiya Dan Asabe (1998) 1 NWLR (part 532) 102 Page 110 paras A-B per Okunola JCA thus:

“Under Islamic Law, the issue of ‘Hauzi’ (prescription) does not affect a property in possession of another, no matter how long such property is in his possession if it is on loan, pledge or for safe-keeping. In such a situation, the defence of prescription is not open to the defendant (Gulma v. Bahago (1993) I NWLR (Pt.272) 766 referred to)”.

This is moreso when it is realised that the position under Islamic law with respect to the role of the appellate courts is different from the role of such courts under the common law system. Thus, unlike the position under the common law system, the appellate courts are not under Islamic law restricted, to the grounds or issues raised by the parties before them. The position of the law was succintly put by the Sharia appellate bench of this court in Ahmadu Sidi v. Abdullahi Sha’aban (1992) 4 NWLR (Pt. 233) 113 P. 118 lines 2-5 per Uthman Mohammed JCA (as he then was) as follows:

“Once a case is brought before a Judge under the Islamic Law 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 re-try the case in whole or in part”.

It is in compliance with the above position of the Islamic law that this court has examined and dealt with the issue of Hauzi vis-a-vis property kept for safe keeping by a person.

Since the farmlands were entrusted to the District Head by the father of the respondent for safe-keeping, this trust defeats Hauzi relied upon by the defendant/appellants herein. Consequently, this appeal lacks merit and it is dismissed. The Judgment of the Sokoto State Sharia Court of Appeal in appeal No. SCNGW/49/96 delivered on 23/2/98 affirming that of Gwadabawa Upper Area Court is hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N5,000.00.

Other Citations: (2001)LCN/1040(CA)