Muhammadu Dan Ige & Anor. V. Umaru Dobi (1997)
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MUNTAKA-COOMASSIE, J,C.A.
This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal herein referred to as court below. The plaintiff, Umaru Dobi, herein respondent, sued the defendant Mohammed Dan-Ige, herein the appellant. The claim of the plaintiff at the Upper Area Court II Birnin Kebbi now called trial court was over the issue of two farms which he allegedly inherited from his late father Abubakar- which farms are still in the possession of the appellant who alleged that he bought the two farms from the respondent’s brother, Umaru, who is now deceased. He was not aware of the sale.
This is actually a transferred case from the Inspectorate Division of the State judiciary. The defendants, now appellant, all along were of the view that the farms the subject matter of this dispute belonged to his father who bought same from Dmaru Bakatara the deceased brother of the respondent.
The plaintiff/respondent was allowed by the trial court to call his witnesses to prove his claim which he did. The appellant, at the close for the case of the respondent, also called witnesses to prove that the land in dispute belonged to his father by way of a sale between his father and the respondent’s brother both now deceased. After ‘izhar the trial court found in favour of the respondent. The appellant being dissatisfied with the above decision appealed to the Sharia Court of Appeal Birnin Kebbi.
In the course of entertaining the appeal at a stage both the appellant and his counsel failed to appear in court and the appeal was struck out and all previous orders made by the court below were accordingly vacated.
The decision of the trial court in favour of the respondent was then restored and affirmed. The appellant then appealed to this court and filed a notice of appeal containing the following grounds as grounds of appeal;
a. The decision of the lower courts (Sharia Court of Appeal inclusive) is unjustifiable and unwarranted having regard to the weight of evidence.
b. That the Upper Area Court II is biased, for it overruled the decision of the Area Court Ambursa which affirmed the farms in dispute to us on the grounds of tenancy (hauzi) for over 40 years.
c. The Upper Area Court B/Kebbi erroneously administered an oath to the respondent whereas we have presented our witnesses whose evidence has not been discredited.
d. The Sharia Court of Appeal erred in law by striking out our appeal whereas it reached the stage of judgment.
At the onset, it has to be clear that both parties are appearing before this court in person. They voluntarily refused to engage the services of any counsel when that opportunity was offered to them by this court. This explains why they could not file any briefs when this court ordered same to be filed. On the hearing date both parties informed the court that they are relying solely on their respective cases as reflected in the records of proceedings of the Upper Area Court Birnin Kebbi herein called trial court and that of the court below.
Considering the nature of this appeal, the position of the parties and the prevailing law, I think it would not be out of place if this court formulates issue or issues for the parties based on the grounds filed by the appellant thus:
- Whether the trial court was right in treating the case transferred to it by the Inspectorate Division as first instance case?
- Whether the trial court properly applied the correct Islamic law and followed strict Islamic law procedure?
- Whether the court below was right in striking out the appeal before it and affirming the decision of the trial court
On the first issue formulated by this court it is settled that Upper Area Courts in this country have dual powers. They are both appellate and first instance courts. In other words, they wear two hats, one is that they can hear a case by virtue of their powers to hear cases in their original jurisdiction. Second, of course, they can entertain a matter in their appellate capacity. The matter was before them on directive by the Inspectorate Division of the State judiciary. There is no specific instruction to the trial court to hear the matter as an appeal.
It is ridiculous an appeal from where. It cannot be from the Ambursa Area Court as insinuated by the appellant. Where is the ruling or judgment of that Ambursa Area Court? Who is the appellant therein? Can the State Inspectorate Division possibly be the appellant? It is not feasible. In any case where are the grounds of appeal? I think the Upper Area Court, now trial court, was perfectly right in treating the matter as first instance case. Issue number one is therefore answered in affirmative – section 50(1) (2) of the Area Court Edict of 1967.
Even though there is scanty reason given by the trial court in offering an oath to the plaintiff after calling some six witnesses. It is conceded that some witnesses called by the plaintiff/respondent did not clearly testify in favour of the respondent but there is no where Tajreeh (impeachment exercise) was conducted in the proceedings. h was not also clear how many witnesses the trial court accepted as testifying in support of the respondent’s claim. It is to be noted that the required maximum witnesses in such cases is two male unimpeachable witnesses. In this matter has the respondent able to have such required witnesses? Or does it mean that the respondent was able to have one such witness? Who among the six witnesses was accepted by the court as a male unimpeachable witness? The answer is not forthcoming. It is not easily discernable. By the claim of the respondent in the trial court the land in dispute has not been in his possession. Had that been the case, we would have considered him, according to Sharia, as having one such witness in his favour. The court, in any case, did not make such a finding. The law, as stated in various Islamic law authorities, is quite clear that the burden of proof always lies on the shoulders of a claimant. The burden can be discharged only by the claimant if he calls two unimpeachable male witnesses or one male such witness and two such female witnesses. He can also discharge the onus put on him by the Sharia if he has one such male witness coupled with claimant’s oath – Garba v. Dogon Yaro (1991) 1 NWLR (Pt.165) 102/104 and 109; Shiwa v. Balla (1961- 1989) 1 SLRN 292; Isa v. Alabi (1961 – 1989) 1 SLRN 177; Akande v. Atanda (1989) 1 SLRN 299. Going by the evidence before this court through the record of proceedings at least PW3, Mamman Danfari, testified that the father of the respondent owned the land in dispute. That the land has not been sold to anybody. So also PW4, Alhaji Biyo, confirmed the claim of the respondent. If the court accepts their evidence I cannot see the need for any oath to be taken by the respondent.
On the issue of whether the appellant can acquire title by prescription I hold that, that did not arise at all. The evidence as revealed by the record was to the effect the sale took place between the brother of the respondent and the appellant some seven years ago. It was agreed by the witnesses on both sides that the respondent was not aware when the purported sale took place. He was then between Gombe town and Zaria township in search of knowledge. When he came back he challenged the sale and took them to court. It cannot therefore be true to say that the respondent stood by after having knowledge of the seemingly spurious sale. It is clear that the land in dispute is supposed to be jointly owned by the respondent and his senior brother who is now deceased. The land must have been part of the inheritable estate of their father who died long ago. That estate has not been distributed yet. How can the senior brother of the respondent validly dispose or such land by way of sale to the appellant’s deceased father? The record of proceedings does not say so. It was not stated therein that the estate was distributed among the legitimate heirs, to allow the senior brother of the respondent to sell his own share to the appellant’s father.
Even if there is some element of sale, the respondent’s senior brother, Umaru, has no good title to pass to the appellant’s father. “Nemo dat quad non habet” He who hath not cannot give. This principle is readily available in Islamic law as much as was available in common law. That being the case, the senior brother of the respondent by name Umaru has not got title to the land in dispute he cannot therefore pass any to the appellant’s father. The land is still the undistributed estate of the respondent’s father.
On the issue of shufa pre-emption, I cannot see how it will apply in the circumstances or this case. If the respondent is coming by way of pre-emption -Al-Akhaz Bisshuf’a, he cannot succeed. This is because the inheritable estate (here the land in dispute) must be distributed among the heirs. Suppose the respondent’s senior brother has got his own share after lawful distribution and then sold same to the appellant’s father then the respondent can acquire it within one year of the sale by pre-emption by handing over the contract price to the buyer.
Shufa was defined in Ruxton, Maliki law page 223 as:
“Pre-emption is the right by which a co-owner in immovable property may redeem from a stranger, in consideration of compensating him, that part of the property which has been sold to him by another co-owners:’
I am confident that the trial court applied a correct Islamic law on hauzi, valid sale and shufa’a. The period of hauzi, prescription is 10 years and above in case of a stranger in possession and at least 40 years in other cases i.e. where the person in possession is a trustee or blood relation or even in law to the claimant. In the case at hand, the person in possession did not keep the land in dispute for 10 years and above he cannot therefore use hauzi as a shield against the respondent who laid a claim against his possession. As stated earlier on that there was no valid sale of the land in dispute between the senior brother of the respondent and the appellant’s father. The land in dispute is not suitable for the application of the legal principle of shufa or pre-emption. The trial court has therefore correctly and properly too considered all these Islamic law procedure and correctly applied them. I have no reason to disturb his findings of fact.
On the issue of oath taking, I hold that since at least two witnesses called by the plaintiff/respondent testified in support of the respondent’s claim an oath offered to the respondent was superfluous and unnecessary. The fact that the respondent has subscribed to that oath does not in any way vitiate the proceedings. The second issue therefore is answered in affirmative.
Without much ado, I hold that based on the records of proceedings of the court below I cannot fault the action and re-action of the Sharia Court of Appeal Kebbi State.
I hold that the appeal before us in this court is lacking in merit. Same must and is hereby dismissed. The decision of the court below is hereby affirmed. N600 costs is awarded in favour of the respondent.
Other Citations: (1997)LCN/0260(CA)
