Mamman Maigari & Ors V. Alhaji Tswashagi Raba Bida (2001)
LawGlobal-Hub Lead Judgment Report
MUSDAPHER, J.C.A.
Alhaji Tswashagi Raba Bida, the respondent herein, was the plaintiff before the Area Court Agaie. He sued the appellants herein for the recovery of a farmland which was entrusted to one Muhammadu Guzau. In accordance with Islamic law procedure when the respondent’s claims were read to the appellants they denied the claims, they also set up the defence of estoppel per rem judicatam, claiming that the same issues were adjudged to finality between the parties by the Civil Upper Area Court Bida in suit No. UAC/BD/FX/311. The trial court investigated this special defence and rejected it. Thereafter the proceedings commenced under the provisions of Islamic law and procedure. The respondent as the plaintiff was asked to produce his witnesses. The appellants as defendants were represented by counsel who demanded that both the plaintiff and the defendants and their witnesses should all be sworn with the Holy Koran so that this will ease the proceedings and will avoid unnecessary delay. And with the permission of the court I will like the plaintiff to swear with the Holy Koran before proceedings begins.”
The court declined the request for the plaintiff to swear but ordered that “All the witnesses shall swear on the Holy Koran that they are going to speak the truth based on what they know about the case.” It is alleged that all the plaintiff’s /respondent’s witnesses sworn on Holy Koran before they testified. I shall return to this matter anon.
The plaintiff/respondent called five witnesses and defendants/appellants called four witnesses. In his judgment delivered on 15/12/87, the trial Area Court Judge found for the plaintiff /respondent and awarded him the farm in dispute.
The defendants felt unhappy with the judgment and appealed to the Upper Area Court Agaie. After hearing the parties in its judgment, the Upper Area Court held that the mere fact that the plaintiff’s witnesses swore on the Holy Koran was not sufficient evidence on which the trial court should base its decision to award the farm land to the plaintiff. The court allowed the defendant’s appeal and ordered a retrial before Beddegi Area Court. The plaintiff felt dissatisfied with the aforesaid decision of the Upper Area Court and appealed to High Court of Niger State sitting in appellate jurisdiction at Minna. The High Court heard the submissions of the parties and gave its decision against the defendants, the respondents therein, and set aside the decision of the Upper Area Court and restored the decision of the trial court. This is now another appeal filed by the defendants against the decision of the High Court in its appellate jurisdiction. It was with the leave of this court that the defendants were allowed to raise a fresh point of law raised in the additional ground of appeal. In the appeal, only the additional ground of appeal was argued, the other grounds having been abandoned are hereby struck out. Now the ground reads:-
“The Niger State High Court sitting in its appellate capacity erred fundamentally in law, when it adjudicated on the appeal and relied on the proceedings before the Agaie Area Court to sustain the claim of the respondent to the disputed farm land, in the face of fundamental errors in the evidence and proceedings of the said trial court which was set aside by the Upper Area Court”. (Although for different reasons)
PARTICULARS OF ERROR
I. When the proceedings were tried under Islamic Law, which system of law does not approve of witnesses giving their evidence on Oath?.
II. Oath taking is an integral part of judicial administration in Sharia and a witness is not qualified to take Oath before a trial court as he has no locus standi to do so.
III. Islamic law stipulates the circumstances in which Oath can be taken by parties in the resolution of a dispute and Oath taking by witnesses is not one of them.
IV. By allowing the plaintiffs five witnesses to take oath on the Holy Quran before giving their testimony in court, the trial court had unwittingly negatived the evidence of the plaintiff and rendered it useless, such that only retrial can meet the justice of the case”.
One issue for determination is identified, formulated and submitted to this Court for the determination of the appeal and it reads:
“Whether it was proper and indeed legally correct, in a proceeding governed strictly by Islamic law for the testimony of witnesses to be preceeded by Oath on the Holy Quran and if the answer is in the negative, what is the consequence of a proceedings so conducted”.
As can be seen the facts of the case are not really relevant for the determination of the appeal. The argument rests solely on the proprietory of witnesses swearing to tell the truth in action governed by Islamic Law and Procedure at the trial court as shown in the record was raised in this way: –
“Court to plaintiff – Do you come with your witnesses?
Answer – They are in court.
Court: – The counsel to the defendants sort (sic) for an application that both the plaintiff and the defendants and their witnesses should all be sworn with Holy Quran so that this will cases (sic) the proceedings and will avoid unnecessary delay. And with the permission of the court I will like the plaintiff to swear with the Holy Quran before proceedings begin.
Court to Counsel: – He cannot swear now in accordance with the Sharia Law. He can only do so after the evidence is concluded.
Answer:- I am satisfied, but what of the witnesses?
Court:- All the witnesses shall swear to the Quran that they are going to speak the truth based on what they know about the case, period.”
All the five plaintiff’s witnesses were duly asked to perform ablution and to swear to Quran before their testimony. Curiously enough the defendants’/appellants’ witnesses refused to swear on the Holy Quran when requested to do so by the trial court before giving evidence. After the evidence aforesaid, the trial court found for the plaintiff. The defendants appealed to the Upper Area Court.
The Upper Area Court after hearing the submissions of the parties in its judgment held:-
“It is true that page 13 of the record of proceedings Hausa version, shows the appellants were not given opportunity to cross examine the witnesses. The court also observed that all the witnesses of the respondent took Oaths on the Holy Quran before their evidence was recorded by the lower court. This court agrees with the submission of the appellant’s counsel that mere Oaths taken by witnesses to the respondent is not solely enough to award the respondent the possession of the disputed farmland and marshy land.”
The Upper Area Court allowed the appeal of the defendants and ordered a retrial before the Bedegi Area Court. It is also significant that the Upper Area Court held that “this court agrees with the submissions of the appellant’s counsel that the evidence are equal that since the evidence from both sides is the same, it would have been more appropriate if the lower court had asked both the appellant and the respondent to swear to the Holy Quran to determine the ownership of the land in dispute.”
The plaintiff respondent herein felt unhappy with the order of retrial made by the Upper Area Court and filed an appeal against the decision to the High Court. The High Court sitting in its appellate jurisdiction heard the arguments of the parties and at the end of the day accepted as more probative the evidence led by the respondent’s witnesses and restored the decision of the trial court. As mentioned above, this is a further appeal to this court by the defendants herein after called the appellants and the plaintiff the respondent.
Now as mentioned above, the only complaint of the appellants is premised on the additional ground of appeal. The appellant’s counsel has formulated the following issue as arising for the determination of the appeal:-
“Whether it was proper and indeed legally correct, in a proceeding governed strictly by Islamic law for the testimony of witnesses to be preceeded by Oath in the Holy Quran and if the answer is in the negative, what is the consequence of a proceeding so conducted?.”
It is submitted for the appellants that this issue proceeds from the platform that Sharia or Islamic law was the appropriate and applicable law. The question was whether the trial Judge acted in accordance with the dictates of Islamic law, when he demanded the witnesses to take Oaths before testifying. Learned counsel referred to a passage in the translated version of Mokhtaser khalil by Ruxton and the unreported case of Falali Igbo v. Anafi Iyanda Appeal No. KWS/SCA/CV/IL/20/96 judgment of the Sharia Court of Appeal, Kwara State delivered on the 27th of September 1996, in which the procedure under Islamic law on the question of taking Oaths was revisited. Learned counsel also refers to BAHJA, Commentary on TUHFATULHUKKAM VOL. I page 113. Learned counsel further refers to a passage in the translation of QAIRAWANI’S RISALA by Alhaji Bello Daura at page 113. The learned counsel again referred to JAWAHIRUL IKLIL Commentary on MUHTASSAR Vol. 2 page 239 where the circumstance of Oath taking is fully explained. Learned counsel further relies on SIRAJU SALIK VOL. 2 page 204, MUWATTA by IMAM MALIK pages 314/315 and SAHIHBUHARI CH.8,P. 436.
The learned counsel argued that on the authorities cited above, Oaths taking is not a trifle matter under Islamic law, it is an integral part of the Shari a with clear and distinct rules for its application. The learned trial Judge was in gross error when he demanded the witnesses should take Oath in this matter. Learned counsel submits that under a situation such as this, an appeal court should order a retrial vide BIRI v. MAIRUWA (1996) 8 NWLR (Pt. 467) 425 at 433 – 434.
The learned counsel for the respondent on the other hand argues that, there was nowhere in the record of proceedings where the trial Judge made it a condition precedent to the witnesses of the respondent to take Oath before testifying, rather it was the appellant’s counsel who demanded the Oath taking, therefore the citation of MUKTASSAR KHALIL did not apply. This is confirmed by the facts that when the Judge demanded the appellant’s witnesses to take the oaths and they all declined the trial Judge allowed them to give their evidence. It is further submitted that the evidence given by the respondent’s witnesses was not in any way affected by the Oaths they have taken at the instance of the appellants’ counsel. On the other points, the learned counsel argued that all what the appellants did by citing the authorities was to show how to prove a matter under Islamic law and the position of Oaths taking in relation thereto and that the authorities are not relevant to the issue under consideration.
Now there is no doubt under Islamic law which there is no dispute applies to these proceedings, oaths taking can be said to be part of evidence starting from the maxim WAL BAYYNATU ALAL MUDDAI WAL YAMINU ALAMA NKARA. That is, the onus of proving an allegation is upon the plaintiff and if the plaintiff fails to prove the allegation by calling credible evidence, then the defendant should take the Oath to clear himself. Another maxim is AL NUKUL BAIADAL NUKULI TASSADIQI Ll NAKJLILAWWAL.
This maxim applies when in the above example, if the defendant declined to swear to clear himself, the Oath could be given to the plaintiff and if the plaintiff takes the oath, the oath taken by the plaintiff and the defendant’s refusal to take the oath amount to proof of the plaintiff’s claim. There is also what is called YAMINULKALAI. This comes into play, where a plaintiff claims a debt against a deceased person or a person who is away and after establishing the claim by calling two unimpeachable witnesses, he would, because of the absence of the debtor, be required to take the oath in addition to the two witnesses.
There is also another situation in which a plaintiff may be required to take the Oaths. That is where a plaintiff fails to produce the required number of witnesses to prove a claim. In a claim for debt for example, where a plaintiff is unable to produce one witness, he is required to subscribe to an oath to complete his proof of the claim. The prophet of Islam SAW is reported to have stated:
INNA JIBIRILLA AMARANI BIL KALA’I BIL YAMINI MA’ AL SHAD ADA, meaning ANGEL GABRIEL DIRECTED ME TO DECIDE A MATTER ON THE EVIDENCE OF ONE WITNESS AND OATH.”
Thus, I agree with the statement of the law as argued by the appellant’s counsel. That Oaths taking is regarded in Islamic law as part of proof to entitle to a claimant and a defendant to a judgment.
So Oaths taking is akin to evidence.
It must also be understood that generally parties to a dispute and their close relations are not competent witnesses, but their oaths where appropriate may assist in proving a claim.
So, I agree also with the submission that there is no requirement for a party when stating his statement of claim to swear nor a defendant when reacting to a statement of claim to swear.
Coming to the matter in this case, I also agree that there is no requirement for any witness generally to swear before giving evidence. Under Islamic law, the quality and integrity of a witness is high. It is even stated in MUWATTA MALIKI, that the qualification of a witness is as high as the qualification of a Judge. A witness should be a person of high moral standing who is known to avoid great sins and to shun minor sins. He has to be a just, fair, equitable and independent person, who could not be influenced by anything.
Indeed, the grounds of impeaching a witness include the question that the witness is not a fair, just or upright person or that he is a person of low moral values.
A witness under Islamic law is clearly not generally sworn in before he gives evidence. Indeed where a witness shows zeal or eagerness in giving evidence by such action as swearing, his evidence is rejected. But in the instant case, it was the appellants’ counsel who demanded the respondent’s witnesses to be sworn and they were accordingly sworn. The question is, can he now complain? In my view, the appellants are estopped from complaining on the procedure adopted. The swearing done by the respondent’s witnesses did not in any way affect their testimony, as a matter of fact the Oaths were not taken voluntarily, they were pressurized to subscribe to the Oaths on the application of the appellant’s counsel. The judgment of the trial court was not based on the fact that because the witnesses for the respondent swore on Holy Quran their evidence was more probable or had more probative value than that of the appellants’ witnesses. The swearing of the respondent’s witnesses did not in any way affect the justice of the decision of the trial court. Though, it is not right under Islamic law to ask the witnesses to swear before testifying, yet in this case, the facts that the witnesses were made to swear did not affect the decision of the trial court.
In the end, I resolve this single issue submitted for the determination of the appeal against the appellants. I accordingly dismiss the appeal and affirm the decision of the High Court restoring the judgment of the trial court.
The respondent is entitled to costs which I assess at N3,500.00.
Other Citations: (2001)LCN/1020(CA)
