Umma & Anor. V. Alhaji Iliya Bafullace (1997)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the judgment of the Katsina State Sharia Court of Appeal holden at Funtua delivered in Appeal No. K73/SCA/FT/136/91 on 18/2/92 whereby the appeal from the Upper Area Court was dismissed.
The facts of this case briefly put were as follows:-
“The appellants herein, as plaintiffs, sued M. Yusufu their Uncle and the respondent as defendants at the Dandume Area Court claiming the farmland which their deceased father left in the possession of M. Yusufu but which they saw in the possession of the respondent. The 1st defendant admitted that the farmland belonged to the deceased father of the appellants but claimed that the appellants gave him the farmland which he sold to the respondent at the cost of N180.00 but collected only N80.00.
The appellants called 2 witnesses, Yarbaba their stepmother and one Alhaji Ya’u. After hearing the evidence of the 2 witnesses, the trial area court gave judgment in favour of the appellants.
Dissatisfied with the judgment of trial Area Court, 2nd defendant/respondent appealed to the Upper Area Court Funtua. After listening to the parties and having gone through the records of proceedings, the Upper Area Court allowed the respondent to call a witness and re-called P.W.2 who acted as D.W.2 and who gave evidence in contradiction of his earlier evidence at the trial court. At the end of the day the Upper Area Court offered oath to the appellants which they declined to take. When the appellants declined to take the oath the Upper Area Court set aside the judgment of the trial Area Court and gave judgment for the respondent.
Dissatisfied with the judgment of the Upper Area Court the appellants appealed to the Sharia Court of Appeal. After listening to the parties and going through the records, the Sharia Court of Appeal affirmed the judgment of the Upper Area Court and dismissed tile appeal. Dissatisfied with this judgment of the Sharia Court of Appeal, the appellants have appealed to this court on the omnibus ground which was with the leave of this court granted on 4/6/97, substituted with three grounds. From the three grounds of appeal, the appellants have formulated three issues for determination in this appeal, viz:
- Whether the procedure adopted by the Upper Area Court sitting on appeal was right in law?
- Whether taking all the circumstances of the suit into consideration, a valid gift of the farmland can be said to have been made.
- Whether there is a valid sale of the farmland in dispute to the respondent.
The respondent also formulated three issues which though couched in a different style and language boil down to the above three issues raised by the appellants in the appellants’ brief. Both parties have filed their respective briefs. Both learned counsel to the parties adopted these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points. Learned counsel to the appellants Mr. Garba Shehu, after adopting the appellants’ brief deemed filed on 4/6/96 submitted on issue 1, that it was not shown that the evidence was not available at the time evidence was given at the trial area court. Learned counsel urged the court to allow the appeal. By way of reply, learned counsel to the respondent Mr. A.D. Garba after adopting to the respondent’s brief deemed filed on 17/6/97 urged the court to dismiss the appeal.
I have considered the submissions of both learned counsel to the parties on the issues raised for determination vis-a-vis the records and the prevailing law. It is intended to give my views on the points raised and canvassed by counsel to both parties. From the submissions of both learned counsel to the parties made orally as well as in their briefs, it appears that their arguments boil down to the three basic issues formulated supra by the appellants. I shall consider the issues as set out by the appellants.
Issue I which I regard as the basic issue in this appeal deals with whether the procedure adopted by the Upper Area Court on appeal in entering judgment in favour of the respondent and confirmed by the Sharia Court of Appeal (hereinafter referred to as the SCA) was in accordance with Islamic Law? On this issue learned counsel to the appellants by way of summary at page 5 of the appellants’ brief submitted that the procedure adopted by the Upper Area Court (hereinafter referred to as the UAC) sitting on appeal is contrary to the rules of procedure and natural justice. Learned counsel further submitted that the Upper Area Court ought not to have allowed the calling of new or additional evidence as the circumstances of the case do not warrant same. By way of reply, learned counsel to the respondent by way of summary at page 8 of the respondent’s brief on Issue I submitted that the UAC adopted a proper procedure in calling additional witnesses since the issue is not clearly comprehended and proved at the trial Area Court. Learned Counsel further submitted that on the finding from the additional evidence that the appellants denied being given part of the proceeds of the sale as given by the witnesses recalled, the court offered oath to the appellants which they declined to take, the UAC was right in entering judgment in favour of the respondent. Learned Counsel also contended that this procedure adopted by the UAC and confirmed by the SCA was in accord with Islamic Law Principles.
I have considered the submissions of both learned counsel to the parties on this basic issue vis-a-vis the records and the prevailing law. Their arguments boil down to:
“1. Whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W.2.
- Whether the Upper Area Court was right in offering oath to the appellants on their denial with respect to being given part of the proceeds of the sale.
- Whether the above procedure adopted by the Upper Area Court confirmed by the Sharia Court of Appeal was in line with Islamic Law?
On the 1st sub issue as to whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W. 2, I have considered the submissions and both learned counsel to the parties vis-a-vis the records and the prevailing law. This sub issue had been resolved by S.5(a)2 of the Kaduna Area Court Edict as amended applicable in Katsina State which provides thus:-
“In the exercise of its power under this section a court may hear such additional evidence as it considers necessary for the just disposal of the case.”
The question has been asked by the parties as to whether or not the additional evidence adduced was not available at the trial Area Court, page 25 line 30 of the Upper Area Court record answers this in the negative. It can also be seen that there is nowhere in the record of the trial Area Court where it is indicated that Mairuwa gave evidence. In the circumstance, it is clear that the law supports the action of the Upper Area Court in calling additional witnesses. As to whether the recalling of P.W.2 was justified in Islamic law particularly when he gave evidence in favour of the respondent, I have considered the arguments of both sides on this matter. The position under Islamic Law is very clear on this point This has been clearly stated in Maliki Law by Ruxton on page 297 Rule 1536 to the effect that it is permissible under Islamic Law for a witness to give evidence in the same case in favour of one another. The question to answer now is whether the additional and recalled evidence are necessary for the just disposal of the instant case. To answer this question, it is necessary to have a short recourse to the records. The facts of this case relating to the additional and recalled witnesses are that they – Alhaji Yau (P.W.2 recalled as D.W.2) Mairuwa and Yanbuja all testified and confirmed to the Upper Area Court that the balance of N100 the balance of the proceeds of sale of the disputed land was shared among the appellants, Halima the deceased’s mother, Yarbaba the wife of the deceased. Their testimony was not challenged by the appellants or any of the other beneficiaries. On the basis of this piece of evidence both appellants were requested by the Upper Area Court to take oath on the Holy Quran that they were not aware of the sale nor shared part of the proceeds and they declined so to do. The important thing to note here is that both the additional and recalled evidence reviewed supra are necessary for the just disposal of the instant case and I so hold. Consequently, I am of the view that both the calling of the additional witnesses and the recalling of P.W.2 by the Upper Area Court as confirmed by the Sharia Court of Appeal follow the laid down principles of the law and I so hold.
On whether the oath given to the appellants by the Upper Area Court was in line with Islamic Law? It needs to be stressed here that the parties no longer contest the ownership of the disputed farmland but they have shifted their controversy on whether the proceeds of the sale of their deceased father’s property was shared among the appellants and other heirs. The evidence of P.W.2 who was recalled as D.W.2 was clear and conclusive on this issue on the two occasions he testified. Thus at page 25 line 20 of the Upper Area Court record he stated thus:
“It was Ahmadu who shared it to them (referring to the appellants).”
This evidence was materially corroborated by Mairuwa at page 25 line 30 of the Upper Area Court records. The question raised by this piece of evidence is that the allegation of both appellants that they were not aware of the sale of the disputed farmland and their denial of sharing from the proceeds of sales of same had been punctured by this evidence as well as the refusal of both appellants to take the oath. Under Islamic Law, it is necessary for the appellants to take the oath moreso when the respondent has called two witnesses. It is clear that the oath was offered on the ground that the appellants denied being given part of the proceeds of the sale as well as having knowledge of the sale. Refusal to take the oath is detrimental to the case of the appellants. See Ruxton. Maliki Law, page 308 Rule 1693. It needs to be stressed once and again that the significance of the oath offered here is merely to confirm that the sale transaction was not conducted in secret and that it took place with the knowledge of the appellants. In the sum, I resolve this basic issue, in favour of the respondent.
Having dealt with the basic issue, I shall now take issues 2 & 3 together since the substance of the complaint in both issues as gathered from the submission of the appellants made orally as well in their brief was that the disputed farmland formed part of the estate of their deceased father which were not distributed among the appellants as heirs and which was sold without their knowledge and consent. The contention of learned counsel to the appellants was that such sale was void and that both the Upper Area Court and the Sharia Court of Appeal were wrong in law to enter judgment in favour of the respondent by offering oath to him. The learned counsel to the respondent argued that since the appellants were aware of the sale and they did not challenge same, they are deemed to have waived this right in that direction and the sale is valid. I have considered the arguments of both sides on both issues vis-a-vis the records and the prevailing law. The arguments boil down to whether under Islamic Law if the property of another person is sold in his presence or to his knowledge without any objection from him, can such a sale be presumed valid? This issue has come for consideration and determination in the Sharia appellate Bench of the Court of Appeal in this country to the effect that under Islamic Law, if a person sells property belonging to another and that other person was around and was fully aware of the transaction or came to know about it but stood by and did not take any action to recover his property or have the sale set aside and kept silent for up to one year, then he forfeits his rights to recover both his property and the purchase price. See Sarkin Makarfi Abdullahi v. Alhaji Garba Gimi (1961-1989) 1 SLRN 308 P.316. This statement of the Sharia took its root from the Islamic Law doctrine of “Bal’ ul contained in pages 176-177 of the book of Ihkamul Ihkam where the learned author stated thus:
“If the property of another person is sold in his presence and he does not object to the sale without any justifiable reason, the sale is valid. Also if he is absent and afterwards knows about it and the period exceeds one year the sale is valid.
In the instant case, as put by the Sharia Court of Appeal at page 36 of the records with which I agree:
“Even if the gift was not confirmed between them about this land his (P.W.2) confessional statement he made that they (i.e the appellants) were aware that the farmland was sold 5 years ago before they took the matter to court means they lost their rights let alone there were witnesses who confirmed that the balance of N100.00 was collected and distributed to them.”
The above finding of fact by the Sharia Court of Appeal summed up the position in this case. The appellants having been aware of the sale of their farmland waited for five years before challenging the sale transaction in court, they are under the Islamic jurisprudence deemed to have forfeited their right to recover their own share or its monetary equivalent. In the instant case the appellants were even given part of the proceeds of sale and they refused to swear to that effect. In the circumstance, there is a valid sale of the disputed farmland to the respondent as they had impliedly given their consent and I so hold.
The position under Islamic Law is that with their knowledge of the sale transaction they could have had the sale nullified if they had raised objection to same within a period of one year of such knowledge. This they had failed to do in the instant case. Having abandoned their right, they cannot come now to deny the sale. In the circumstance both issues 2 and 3 are also resolved in favour of the respondent.
In sum, the appeal fails and it is hereby dismissed with N500 costs to the respondent.
Other Citations: (1997)LCN/0288(CA)
