Wakili Manu V. Abdulkadir Muhammad (1997)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the decision of the Bauchi State Shari’a Court of Appeal holden at Azare (hereinafter referred to as the SCA) whereat the present appellant appealed against the decision of the Upper Area Court Azare (hereinafter referred to as the UAC) which gave judgment in favour of the respondent/plaintiff in respect of the five disputed farms.
The facts of this case briefly put were as follows:
At the Upper Area Court where the present respondent as plaintiff sued the appellant here as the defendant claiming on behalf of his brothers and sisters the five farms inherited from their deceased father left under the control of the defendant/appellant who denied the claim. At the trial seven witnesses testified for the plaintiff/respondent out of which three of them, viz P.W.I, P.W. VI and P.W. VII gave direct evidence that they know some of the farms and knew the grand father of the parties and that the farms were not shared in inheritance. On his part four witnesses testified for the defendant/appellant out of which the Upper Area Court Judge disqualified three key witnesses (vide page 10 of the Records) on the ground that they were related to the defendant/appellant without hearing the testimonies of the witnesses. Out of the four witnesses who testified for the defendant/appellant, three of them (P.Ws I, II, IV) gave according to appellant’s counsel evidence that the appellant’s father originally cleared 3 of the five farms which therefore belong to him not by inheritance through his father. The Upper Area Court after a review of the evidence entered judgment for the plaintiff/respondent and ordered that the farmlands be shared among the heirs – Manu and his brother and later Abdulkadir to take their shares and divide same among themselves.
Dissatisfied with this judgment, the defendant/appellant appealed to the SCA which after hearing the parties and looking through the records affirmed the decision of the Upper Area Court. Again dissatisfied with this judgment of the SCA the defendant/appellant (hereinafter referred to as the appellant appealed to this court on various grounds which included lack of proper evaluation as well as the arguments. Furthermore the appellant complained that his application for the calling of his witnesses was improperly disqualified by the Upper Area Court. The judgment of the SCA which was delivered by only two Kadis did not also state the basis in Islamic Law upon which it was founded. All these formed the grounds of this appeal. From these grounds of appeal, the appellant has formulated the following 5 issues with which the respondent agreed:
These are:
- Whether the two Kadis who determined the appeal at the court below were competent by law and therefore duly constituted the court for the determination of the appeal.
- Whether the court below properly evaluated the evidence before the Upper Area Court before affirming the decision of the latter.
- Whether the court below has not acted contrary to Islamic Law when it delivered judgment without showing its basis in law.
- Whether the appellant was given fair hearing when his application to call and hear his witness as well as grounds and submissions were totally ignored by both the court below and the Upper Area Court
- Whether the judgment is not against the weight of Evidence.
The appellant’s counsel filed the appellant’s brief of argument on 12/3/97. The respondent being unrepresented did not file the respondent’s brief. Today, 1/7/97 when this appeal came up for hearing before us, learned counsel to the appellant A.S. Hassan Esq. adopted and relied on the appellant’s brief of argument filed herein on 12/3/97and urged the court to allow the appeal. By way of reply, the respondent who was unrepresented and who appeared in person, adopted his case as presented at the Upper Area Court Azare and the Bauchi State Sharia Court of Appeal holden at Azare as contained in the record of proceedings. The respondent who said he had nothing to add urged the court to dismiss the appeal.
I have considered the submission of learned counsel to the appellant and the case of the respondent in person as given by him. It would appear to me that the argument of both parties boils down to 2 basic issues; viz:
- Whether the two Kadis of the Sharia Court of Appeal who determined the appeal at the SCA were competent by law and therefore duly constituted the court for the determination of the appeal.
- Whether the decision of the SCA accord with laid down principles of Islamic Law.
Since jurisdiction is the basis of adjudication, I will first of all deal with the issue of jurisdiction contained in issue No 1. It is the outcome of this issue No 1 that will determine whether or not other sub issues in Issues No 2 will be considered in this regard.
Learned counsel to the appellant after adopting and relying on the appellant’s brief submitted under the issue of jurisdiction at paragraph 4.0 on page 2 of the brief that the learned Kadis only two of them that presided over the appeal at the court below did so without jurisdiction regard being had to the provisions of 233E of the Constitution Suspension and Modification Decree No 107 of 1993 which mandatorily made three Kadis/judges for the due constitution of the court below to hear an appeal, Accordingly, the court below we submit and urge your lordships so to hold acted without jurisdiction. Since the respondent merely adopted his case at the two lower courts, he had not proffered any reply to this legal argument, In the circumstance I have considered the submission of the appellant on this novel issue vis-a-vis the records and the prevailing law. In my view, in order to resolve this poser raised by learned counsel to the appellant, it will be necessary to examine the amendment which Decree 107 of 1993 had made to that section in the 1979 Constitution. Whereas under the 1979 Constitution two Kadis are duly constituted for the sitting of the Sharia Court of Appeal of any State in the Federation under S. 243 of the 1979 Constitution, However, Decree No 107 of 1993 otherwise known as Constitution Suspension and Modification Decree amended Section 243 of the 1979 Constitution on the Constitution of the Sharia Court of Appeal in the following terms:
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or an Act of the National Assembly or a Decree, the Sharia Court of Appeal shall be duly Constituted if it consists of at least three Kadis of that court”
From the foregoing it is clear that from 17/11/93 when this amendment via Decree 107 of 1993 took effect and to date, where two learned Kadis preside over an appeal at the Sharia Court of Appeal of any state of the Federation such learned Kadis merely do so without jurisdiction pursuant to the provision of section 233E of the Constitution Suspension and Modification Decree No. 107 which mandatorily made three Kadis for the due Constitution of the court to hear on appeal and I so hold.
The question to ask is whether the instant appeal is caught by this amendment.
To answer this poser, it is necessary to travel into the sphere of what is known in legal parlance as ‘applicable law.’ This legal phenomenon has received judicial definition from the appellate courts in this country to the effect that the applicable law for the determination of an action before the court is the substantive law existing at the time of the action and that changes of law will not affect the accrued rights and obligations unless the change is made retrospective. Utih v. Chief Umurhurhu Onoyivwe & 5 Ors. (1991) 1 SCNJ 25; (1991) 1 NWLR (Pt. 166) 166 See also Victor J. Rossek & Ors v. African Continental Bank Ltd & Ors. (1993) 10 SCNJ 20; (1993) 8 NWLR (Pt.312) 382. From the foregoing authorities, it is clear that the applicable law is that law existing as at 14/9/93 when the appeal was heard and determined and an amendment to that law which in this case is that introduced by Decree No. 107 of 1993 which came into effect on 17/11/93 – 62 days thereafter cannot have effect on the composition of the court presided over by 2 Kadis as contained in S. 2 s.43 of the 1979 Constitution before the amendment and I so hold. Issue No. 1 is accordingly resolved in favour of the respondent. Having resolved this jurisdiction issue, I shall now deal with the second basic issue.
As regards the second issue as to whether the decision of the SCA accord with laid down principles of Islamic Law, learned counsel to the appellant submitted that P.Ws 1, 6 & 7 the only witnesses who testified for the plaintiff materially contradicted themselves on the identity of the disputed land before the UAC. While the other witnesses said they did not know anything about the disputed farmland. Learned counsel to the appellant submitted that the UAC breached the rule of fair hearing by not allowing 2 of his many witnesses to testify on the ground of being uncles to the defendant. He also called on the court to reevaluate the unchallenged evidence of his remaining 3 witnesses as well. As earlier reviewed, the respondent based his reply on his case as presented in the two lower courts. From the arguments of both sides, the poser here is whether the UAC as confirmed by the SCA followed the laid down principles under Islamic Law? To answer this poser it will be necessary to have a recourse to the evidence at the trial UAC. I have earlier reviewed this but I want to observe from the proceedings that 7 witnesses were called by the plaintiff/respondent in proof of his claim – P.Ws 2, 3, 4 & 5 gave evidence that they did not know about the farms nor whether they were divided between the parties as inheritance. On the other hand P.Ws 3, 4 & 5 who were males gave unimpeachable evidence that the disputed 5 farms were subject of inheritance of the grandfather of the parties which had not been shared among the heirs which included the two parties. The defendant called 5 witnesses to prove his claim. The first two were their uncles who were successfully challenged on the grounds of being uncles to the parties. Two other witnesses were also challenged on the ground of marriage. The only male witness who testified did not contribute materially to the proof of the defendant’s case. The question raised here from the above setting of this case is “whether in entering judgment in favour of the plaintiff/respondent the UAC as confirmed by the SCA had followed Islamic Law Principles?
In this regard the following legal principles will be considered.
- Whether uncles and marital relations under Islamic Law can testify for a person as witnesses.
- Onus of proof on a plaintiff and how discharged and whether this has or had not been discharged in this case.
On the first sub-issue, it is the procedure under Islamic Law that when a plaintiff calls a witness, the court will ask the witness what he knows about the dispute between the parties, if he does not know anything, he may be discharged. However, if he gives evidence in support of the plaintiffs claim, the defendant shall be allowed to cross examine or impeach his character by challenging his competence to give such evidence either before or after giving such evidence on such grounds as bias or prejudice. When the evidence of a witness is challenged on any of these grounds successfully, the court shall not allow the witness to defend himself against the challenge. See Mafoluku v. Alamu (1961-1989) 1 SLRN 163.
It is trite under Islamic law that under a blood relation of a party such as uncles and in-laws as in the instant case will not be admitted as competent witnesses. Similarly a person within the marriage prohibited degree will not be accepted as good witness. If such a witness is successfully impeached such evidence or witness shall be discarded. See Mafoluku v. Alamu (supra). In the instant appeal at the UAC the uncles as well as the in laws of the defendant were rightly impeached on the grounds of their relationship to the defendant/appellant and I so hold. See Alhaji Sule v. Hamidu (1988) 4 NWLR (pt.90) 516 pp. 517-518. See also Alhaji Usman v. Alh. Kareem (1995) 2 NWLR (Pt.379) 537 P. 540 para. 5. In the light of the foregoing, I hold that the witnesses mentioned supra had been successfully impeached under Islamic Law which under the 1979 Constitution recognised as one of the three legal cultures co-existing in Nigeria. See Alhaji Agbebu v. Shehu Bawa (1992) 6 NWLR (Pt.245) 81 P. 82. In the light of the foregoing the principle of fair hearing as entrenched in S. 33 of the said Constitution has not in any way been breached and I so hold.
As regards the onus of proof under Islamic law, plaintiff’s case can only be proved by evidence of:
(a) Two unimpeachable male witnesses: or
(b) an impeachable male or two or more unimpeachable female witnesses; or
(c) a male witness or two or more female witnesses plus the plaintiffs complimentary oath.
See Usman v. Kareem (supra) P. 540 1
In the instant case, the plaintiff complied with the above Islamic Law procedure when he called three unimpeachable male witnesses in proof of his claim.
In the circumstances of this case, the UAC decision as confirmed by the SCA, accorded with laid down principles of Islamic Law and I so hold. On the whole, I have no reason to disturb the concurrent findings of the two lower courts. See Hada v. Malumfashi (1993) 7 NWLR (Pt.303) 1 SC
In the light of the foregoing, this appeal fails and it is dismissed. The judgment of the Bauchi State Sharia Court of Appeal holden at Azare dated 17/9/93 which affirmed the earlier decision of the Upper Area Court Azare is hereby affirmed. Costs of N1,000.00 is awarded in favour of the respondent.
Other Citations: (1997)LCN/0277(CA)
