Musa Dauda V. Magajiya Dan Asabe (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the decision of the Sharia Court of Appeal of Katsina State delivered on 23/11/95 wherein the Court dismissed the appeal by the present appellant against the earlier decision of the Upper Area Court Funtua which had quashed the earlier decision of the Danja Area Court.

The facts of this case briefly put are as follows: The respondents herein as plaintiff before Danja Area Court sued the appellant herein as defendant claiming as per page 1 of the records as follows:

“I, Magajiya sue M. Dauda because my father Mohammadu went and left his farmland in his possession while his mother and my father are brother and sister. I came and asked for our farmlands he told me that he bought the farmlands. We don’t have any in his possession that is why I sue him to court and praying to Court to collect back my father’s farmlands.”

The plaintiff claimed that his father died 8 months earlier. The Court confronted the defendant/appellant with the claim and he denied claiming that he bought the farmland from the plaintiff/respondent’s father when he was about to leave the town to settle in Zaria province. The defendant said that he had 3 witnesses to confirm the sale but that 2 of them had died leaving only one, who is Marguwa Garuba. The plaintiff/respondent on being asked told the Court that he had 2 witnesses to confirm that her father did not sell the farmland but gave it for safe keeping to the defendant. These are M. Yusufu (85 yrs) and M. Dawuda (76 yrs) both of who testified as PWs 1 and 2 respectively claimed to be living in the same home with the plaintiff/respondent’s father. They confirmed that they knew when the plaintiff’s father left for Zaira province and gave his farmland to the defendant for safekeeping. When confronted with the evidence of both witnesses, the defendant admitted that it is true that the plaintiff’s father gave him part of the farmland for safekeeping and sold part of it to him. The defendant called his only surviving witness to prove the sale of the farmland to him by the plaintiff’s father. This was Marguwa Ganbo. In his testimony, DW1, Marguwa Ganbo Layin Kwari confirmed that the disputed farmland belong to the plaintiff’s father but denied knowing anything about the sale of the farmland of Muhammadu, the plaintiff’s father to the defendant as such sale was not made in his presence. He said he did not know about the issue of safekeeping either. On being asked by the Court to comment on what the witness has said, the defendant said his evidence was true. On being asked question about the farmland by the plaintiff, the witness reaffirmed that no deal concerning the farmland was made in his presence and to his knowledge. He further affirmed that at no time was the defendant given the farmland as a gift in his presence or to his knowledge. On the visit by the trial Judge to the farmland the defendant showed the Judge the part of the farmland given to him for safekeeping and that he claimed he bought.

In the course of the trial, the parties tried some efforts at reconciliation whereby the plaintiff agreed and gave part of the disputed farmland to the defendant. The Court entered judgment in favour of the plaintiff and confirmed to the defendant the part of the farmland which the plaintiff gave to the defendant. Dissatisfied with this farmland, the defendant appealed to the Upper Area Court Funtua (hereinafter referred to as the UAC).

At the UAC Funtua, the defendant stated his ground of appeal as follows:

“The reason why I appealed is that because I have 3 farmlands 2 of them about 70 years I am in possession of them while the one I bought it from Muhammadu the father of Magajiya about 30 years ago at ?16 but the Area Court Danja Confiscated these farmlands and gave them to Magajiya and I was left with only one which I bought from Muhammadu that was why I don’t agree. I appealed.”

After taking the addresses of both parties as well as going through the records, particularly based on the evidence of the plaintiffs 2 unimpeachable male witnesses and the admission of the defendant, at page 5 line 16 of the records, the UAC dismissed the defendant’s appeal and affirmed the decision of the trial Area Court and confirmed the farmlands to the plaintiff as they belong to her father. Dissatisfied with this decision by the UAC, the defendant again appealed to the Katsina State Sharia Court of Appeal holden at Funtua on the following 4 grounds viz:

“1. These farmlands in dispute I bought 2 of them from Muhammadu Dankadau the father of Magajiya Dan-Asabe I bought one at ?1.0.0. about 70 years ago the other one I bought it ?16.0.0. about 30 years ago and one was given to me as a gift about 70 years ago because I was brought up in his house.

2. I don’t know what the Area Court Danja relied upon to give my opponent the farmlands because she was claiming only one farmland which was sold to me at ? 16.0.0. but the court gave her the other farmlands which she didn’t claim i.e. that which her father gave me 70 years ago and with the one which I bought ?1.0070 years ago that I should be given one farmland as a gift for being possession of the disputed farmland for all these years.
3. The U.A.C. Funtua didn’t make any investigation to apply Oath since there was no sufficient evidence/witness from the complainant because the witnesses she produced are her relatives but the court gave her the 2 farmlands and gave me one.
4. The Court didn’t order that these 3 farm lands for all these 70 yrs I mentioned. I was in possession of them and I have been given them and they have never talk about them since that long period or time it is now she ask for her father’s farmland. Muhammadu after he died 9 months ago she sue me to court claiming these farmlands.”

After hearing the parties on the grounds of appeal and going through the records of proceedings, the Sharia Court of Appeal dismissed the appeal of the defendant and affirmed the decision of the Upper Area Court, Funtua. The Sharia Court of Appeal confirmed that the farmland belong to the plaintiffs/respondent’s father. Dissatisfied with this judgment, the defendant has again appealed to this Court on the omnibus ground. The defendant/appellant hereinafter referred to as the appellant was unrepresented and filed no brief. In the same vein since the appellant did not file the appellant’s brief, the respondent did not file the respondent’s brief. However, the appellant and the respondent appeared before us on 19/6/97 when this appeal was heard. The appellant appeared in person. He argued his appeal by adopting his case as presented at the Danja Area Court, Upper Area Court Funtua and the Katsina State Sharia Court of Appeal. He said he had nothing to add and urged the Court to allow the appeal. By way of reply, Mr. A.A. Olagoke learned Counsel who appeared for the respondent also adopted and relied on the cases presented at the three lower courts. He said he had nothing to add and urged the court to dismiss the appeal. I have considered the submission of both parties vis-a-vis the records and the prevailing law. It is my view that their arguments boil down to whether the trial lower court followed the correct procedure in Islamic Law in awarding the farmland to the plaintiff/respondent who had called 2 unimpeachable male witnesses to prove that her late father kept his farmland with the defendant appellant for safekeeping as against the unproved case of sale by the defendant appellant who called a witness who denied the counterclaim of sale by the defendant/appellant 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 vis the records and the proceeding law. In my view their argument boils 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 summarised by the Supreme Court in Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1 p. 17 per Wali JSC thus:

“Under Islamic Law, unlike English Law parties are not competent witnesses in their respective cases; hence their statements in court would not be regarded as evidence as their statements are something akin or similar to the statements’ of claim or defence in Court. The plaintiff or claimant is required to state his case and it is only when the plaintiff or claimant has stated his case that the defendant will then be called, asked and ordered by the court to respond there and make an answer to confess or deny the plaintiffs claimant’s claim. If the defendant admits the claim, judgment can be entered for the claimant. However, if the defendant denies 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 moveable and immoveable 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 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 receive evidence of 1 witness in support of the appellant’s claim. This is an unnecessary surplusage. It is only when both parties are in possession that such a procedure is followed. See Hafsatu Abdullahi v. Haruna Adamu (unreported) appeal No. CA/K/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 safekeeping. 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 such a property in possession of another, if it is on loan, pledge or for safekeeping. In such a situation, the defence of Hauzi is not open to the defendant to plead. See Mallam Idrisu Gulma v. Ahmadu Bahago (1993) 1 NWLR (pt. 272) 766 CA. I have touched on this issue having regards to the position of the importance of procedure under Islamic Law as well as in other legal systems.

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 succinctly 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 J.C.A (as he then was) as follows:-

“Once a case is brought before a Judge under the Islamic Law and 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 appellate stage the appellate court can rehear or retry the case in whole or in part.”

It is in compliance with the above position of the Islamic Law that this court had examined and dealt with the issue of Hauzi vis-Ã -vis property kept for safekeeping by a person.

In sum this appeal fails and it is dismissed. The judgment of the Katsina State Sharia Court of Appeal in Appeal No. KTS/SCA/FT/182/95 delivered on 23/11/95 affirming that of Funtua UAC of 4/9/95 is hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N1,000.00.

Other Citations: (1997)LCN/0330(CA)