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SUIT NO. CA/K/120s/89

3PLR/1991/57 (CA)








MURITALA AREMU OKUNOLA, J.C.A. (Read the Leading Judgment)



Appellants in person

Issa Mekwari representative of the respondent in person



REAL ESTATE/LAND LAW:- Dispute over title to land – Islamic law procedure – Application of Estoppel per rem judicatam – Earlier suits resolving questions of title – How treated

CHILDREN AND WOMEN LAW: Women and Property/Justice Administration/Religion – Inheritance of property alleged to have belonged to deceased woman – How treated under Islamic law procedure

RELIGION AND LAW – ISLAMIC LAW PROCEDURE:Application of the doctrine of Estoppel per rem judicatam under Islamic Law – Comparison with common law – Implication for justice administration

PRACTICE AND PROCEDURE – EVIDENCE – Estoppel per rem judicatam – Meaning – General principles guiding the application of the doctrine – Distinctives of applying the doctrine under Islamic law procedure





OKUNOLA, J.C.A. (Delivering the Leading Judgment):

The dispute which led to this appeal stemmed from the decision of Upper Area Court Birnin Kebbi presided over by the Alkali.Alhaji Mohammed Dan Chafe. In that case which was transferred from Upper Area Court (hereinafter referred to as UAC) Argungu after 3 years of no action, the Respondent herein as plaintiff sued the appellants herein. His statement of claim as per page I of the Records is as follows:

“STATEMENT OF CLAIM: I Musa Yar’Adua I am suing Balan Ayye and Dandaren Ayye in respect of a house and 4 plots that belong to my mother. When she gave the said places which I was working on, I then left the places and went to school in care of my mother. She then marry in another town leaving the estate in care of Dikko and that if I came back he should hand over the estate to me. When I came back I met she was dead.

I then inquired about my estate. I was told that they were in the hand of Dikko when I asked him he said he loan it to Abdulmumini that is the father of Bala. He said he would retrieve the farms from him and give me. Dikko was the one that gave him. But when he went to retrieve the farm he met Abdulmumini was dead he then said to his children to release the farms because the farms were loaned to their father and now the owner has come therefore they should release the farms, they refused to release the farms. Dikko instructed me to institute an action against them THAT’S why I am suing them.”


The appellants disputed the respondent’s claim and claimed that they inherited the disputed house and plots of land from their mother who inherited same from their grandfather Abdulmumini. They claimed that the said property had once been a subject of Litigation with Haruna, a step brother to the respondent. They claimed that Abdulmumini won the earlier case both at the Upper Area Court Argungu and the Sharia Court of Appeal of Northern Nigeria which confirmed the house and the two plots and farms in dispute to Abdulmumini over 20 years ago. However the respondent claimed that the place he was disputing was different from the subject matter of the previous litigation.


At the Upper Area Court Birnin Kebbi, the respondent called three witnesses namely Ladan Dodo Argungu Adamu Makeri and Alhaji Dandawe Abdu in support of his claim. They all testified to the effect that the property in dispute belong to the respondent’s mother Habbi who gave same in trust to Dikko the Village Head when she was leaving for Gwandu. She said in her letter to Dikko that when her son Musa the respondent returns from where he had gone for schooling, he should hand over the estate to him. They said Dikko gave the house to Mumuini (i.e. the shortened form of Abdulmumini) in trust and when Mumnini died his grandsons came in and occupy the house. They said when judgment was given in the case between Mumuini and Haruna, Mumuini settled in the house of one Mallam Shayon, a neighbour of Habbi. When the respondent returned, he went to Dikko who confirmed the story. Musa sued in Court after Mother and Dikko had died. Musa had been away for 20 years when no one knew he was coming back.


The appellants called two witnesses -M. Adamu Jada and M. Garba Argungu who gave evidence to confirm their claim that the house, farms and the plots in dispute belong to Abdulmumini and that they inherited the Estate. The witnesses also said the estate in dispute did not belong to Habbi who was alleged to have given it in custody to Dikko and who in turn gave it in trust to Abdulmumi. Garba also confirmed the findings of the court in the earlier case which gave the estate in dispute to Abdulmimini after retrieving same from Haruna. Garba said the parties in the present case are only disputing that the house is two in one. He went on to confirm that the house in dispute is only one and not two as claimed by the plaintiff/ respondent’s witnesses.


Adamu, the 2nd witness to the appellants confirmed that the house was owned by Rafi Isa who inherited it from Rafi Muhammadu and it was from Rafi Muhammadu that Abdulmumini inherited the house. He too confirmed that through the judgment in the earlier case with Haruna, the court confirmed the estate in dispute to Abdulmumini. After the visit to the locus In Quo, the appellants tendered the proceedings and judgment of the earlier case by the Sharia Court of Appeal of Northern State delivered on 25/7/62 in Sokoto Case No. BC/34/1962 before the Hon Grand Khadi A.A. Gummi, A.A. Zaki Khadi and A.H. Binji in the suit between Abdulmumini and Alhaji Haruna.


The court reproduced the said proceeding and judgment at pages 21 – 23 of the Records as follows:

This case is an appeal from Upper Area Court Argungu to the Sharia Court of Appeal instituted by Abdulmumini against M. Haruna on his occupying his father’s house and he want him to vacate the house. The Honourable Judge of Argungu found and delivered his judgment in favour of Abdulmumini and confirmed the house to him, but in condition that he should pay M. Haruna the money of the erected room built by Haruna”s father estimated at N6,290.00. Abdulmumini disagree with the payment on the grounds that Haruna was not the one that erected the rooms. The Sharia Court of Appeal followed the testimonies of the disputing parties and found the originality of the house belong to the father of Abdulmumini M. Haruna and his parents resided in the house for only the sake of inter marital relationship and trust for some years and vacate the said house later. Shayau resided in the house for almost 41 years.

After his death M. Haruna occupied the house and the court had seen even after the court affirmation of the house to Abdulmumini M. Haruna continued to be living in the house until the payment of N62.90k the money of the work done by his father is due. Because in our finding we have seen that the father of M. Haruna was not the person that erected the rooms and there is not inheritance between him and M. Shayau who stayed in the house for 41 years when after his death M. Haruna resided in the house, we have seen in the judgment of the Upper Area Court Argungu that M. Hamna was holding the house until the payment of N62.90k is paid to him has gone contrary to the law we estimated the tenancy of Malam Haruna from the date of the judgment delivered by Upper Area Court Argungu from 3l/10/ 59 to 25/1/62 to at the rate of N66.00 but because of the relationship existing between Abdulmumini and Haruna we beg Abdulmumini to forget about the N66.00 and Abdulmumini said he did so.


In view of the above mentioned fact the Court has granted the appeal by Abdulmumini and dismissed the payment of N62.90k and ordered M. Haruna to release the house to Abdulmumini within 3 days to effect of 2517/62.

Honourable A.A. Gummi Grand Kadi Honourable A.A. Zaki Judge Honourable A.H. Binji Acting Judge.


After considering the evidence of the parties, and the visit to the locus In quo and the report of the visit and measurements made therein, the trial Area Court gave judgment in favour of the appellants who were in possession after admitting oath on them according to the Islamic law procedure. The respondent being dissatisfied with this judgment appealed to the Sokoto High Court appellate Division. The High Court after hearing the patties on appeal allowed the appeal, set aside the judgment of the Upper Area Court and confirmed the Estate to the respondent herein. Dissatisfied with this judgment of the Sokoto State High Court hence this appeal by the appellants to the Court of Appeal Kaduna. The grounds of appeal before us and the relief sought by the appellants are as follows:


  1. The High Court Sokoto erred in law by confirming the ownership of the house to the respondent whereas the same house was confirmed on the appellant’s grandfather some 25 years ago by the Sharia Court of Appeal of the former Northern Region of Nigeria.


There was abundant evidence before the court which showed that the house which respondent’s uncle (Mal. Haruna) lost to appellants’ grandfather (Abdulmumini) both before the Alkali Court Argungu in 1960 and also before the Sharia Court of Appeal of former Northern Region of Nigeria in 1962 is one and the same house which respondent is now suing for before the Upper Area Court Bimin Kebbi.

  1. The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evi­dence.

An order setting aside the judgment of the Honourable High Court Sokoto delivered on 8/6/88 and confirming the ownership of the house and the farms on Abdulmumini, the grandfather of the appellants.


When this appeal came before us Muhammadu Awalu Musa, the son of Musa Yar’Adua’, the respondent who is now deceased applied to substitute Issa Mekwari, the junior brother of his father Musa Yar’Adua (Dead) to represent the deceased in this appeal. Both appellants objected to this application although they agreed that Issa Mekwari is related to the deceased. In the end, the application was granted and Issa Mekwari stepped into the shoes of the respondent. Both patties later argued the appeal before us.


In their arguments, both 1st and 2nd appellants in support of their appeal against the judgment of the Sokoto High Court presided over by Ibrahim Umar and H. Binji dated 14/5/86 which gave the disputed estate to the respondent contended the estate was theirs as they inherited same from their grandfather Abdulmumini. They traced their title to Abdulmumini via the decision of the Sharia Court of Appeal of Northern State which gave Abdulmumini the 2 farms and plots and the house comprising the disputed estate. They traced the history to the case from the Upper Area Court Birnin Kebbi to Sokoto High Court to the present appeal before this Honourable Court. They raised a plea of Estoppel per rem judicatam through the earlier judgment on the disputed land in favour of their grandfather in the Sharia Court of Appeal of the Northern State presided over by Mallam Abubakar Gumi, Grand Khadi, sitting in Sokoto on 25/7/62 in appeal No. SCA/CV/34/1962 between Abdulmumini Argungu v. Haruna Argungu. The appellants produced in court certified copy of the procedure and judgment in the said appeal which agreed with the same document tendered by the appellants at the trial Upper Area and reproduced on pages 21 & 22 of the records and pages 4 & 5 of this judgment.


In his submission on behalf of the respondent, Issa Mekwari, observed that the house, subject matter of appeal No. SCA/CV/34/1962 is different from the estate now in dispute. He claimed that although the House involved is one and the same plot but it was divided into two by a dividing wall after the 1962 judgment. Musa the deceased respondent lived in the small portion of the divided house which he inherited from his late father Mallam Nuhu. He said it was the small house that Musa left in the possession of her mother who later remarried and left same in the custody of Dikko. He recalled that it was after the small house was sold to Hamisu that he pulled down the dividing wall 3 years ago after the decision of the Upper Area Court Danchabbe. He said Musa was related to Haruna who lost to Abdulmumini and not otherwise. Haruna was Musa’s uncle being his mother’s brother.


By way of Reply, the appellant submitted that all what the respondent said was not correct. He pointed out the following areas in his statement to the Court which are inconsistent:

(i)      If it is correct that the mother of Musa had given the house to Dikko for safe keeping, what became of her brother Haruna who lost the case in respect of the ‘bigger’ house which the Sharia Court of Appeal granted to Abdulmumini.

(ii)     In the proceedings before the Upper Area Court Danchabbe contained in the Record of proceedings before this court, the respondent said that Musa’s mother inherited the house from her husband while respondent’s representative in this appeal said that she inherited the house from her father. It is therefore not correct that Musa’s mother left the house in care of Dikko who left same in care of Abdulmumini as claimed by the respondent’s representative.

(iii)    The Upper Area Court had gone on several times and visited the locus in quo and it is there on record that the court saw the house as one house and not as two in one. He said that the story of two in one house is an afterthought and a device to claim part of the house after the respondent has failed in his bid to claim the whole house.


I have considered the arguments of the parties before us in this appeal vis­ a-vis the record of proceedings. The main issue raised by both parties in this appeal is whether or not the 1962 case serves as Estoppel for the case on appeal. Since the main issue raised by both parties hinges on the doctrine of Estoppel per rem judicatam which is common to both the common law and Islamic law, it is necessary for a proper understanding of the issue involved to examine briefly this doctrine. The meaning of this doctrine is simply that a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties and the issue cannot be raised again. The rationale for this doctrine is that it is in the public interest that there should be an end to litigation.


Having defined and explained the rationale behind this doctrine, it is necessary to briefly examine the general principles guiding the application of this doctrine. From the above definition of this doctrine, it is clear that before the doctrine can operate, it must be shown that the parties, issues and subject matter WERE the same in the previous case as those in action in which the plea of Res judicata is raised. This multipurpose legal principle common to both the Common Law and the Islamic Law has received the approval of the Supreme Court and this court in a long line of cases which were considered and discussed in our recent judgment in Yesufu Alao Carno v. Alhaji Wahabi Alao, (unreported) appeal No. CA/K/197/89 delivered on 14/5/91.


Having discussed the position of this doctrine under the common or general law, it is necessary at this juncture to point out that though the doctrine of res judicata applies to both legal cultures, the procedure or method employed by Islamic Law differs from that employed by the common law even though the end result seems to be the same therefore – That a case that has been judicially decided cannot be relitigated again. It is therefore necessary to briefly examine the procedure employed by Islamic Law regarding this doctrine. According to Zeys, the maxim Res judicata pro veritate habeture is replaced by in Muhammedan Law by the authority of the well judged judgment. What this means in Islamic Law is that no fresh judgment can be pronounced on any case that has once been judicially decided (i.e. based on the text of law); unless both parties to the litigation conceal the fact of a previous judgment or the judge himself exceeds his power. In other words a judgment under Islamic Law is conclusive with reference to the text of the law on which it relies. Thus, the issue of finality of judgment which forms the basis of the doctrine of Res judicata is common to both the common law and Islamic Law. See Ruxton on Malike Law pages 286 – 288; Jawahvil Iklil, Commentary on Muhtasar of Sheik Khalil, Vol 11 in Chapter of Judicial Procedure, at page 221.


It must be emphasised that as it is under common law, a final judgment in Islamic law remains final until it is reviewed. This is why provision is made for, a system of review under the various area courts Law whereby Inspectors of area Courts can order against any decision which appears to him to be unjust and oppressive based on law. The same result is achieved by the system of appeals entrenched in the 1979 and 1989 constitutions of the Federal Republic of Nigeria. These powers of review are evident from the authorities in Ruxton and Jawahiril Wit (supra). The basic difference between both systems lies in the fact that greater emphasis is placed under Islamic law on the rule of law respect to the doctrine in that the Rule of law provides for every detail and it is merely for the judge to refer to those rules in deciding a case.


This position of Islamic Law was well articulated by Russel and Suhrawardy in RISALAH p. 98 in the following words:

“Perhaps we can best give a general idea of the nature of Muslim procedure by describing it as a self-acting system; that is to say, it aims at being automatic, in the sense of leaving as little as possible uncertain or subject merely to the discretion of the judge. For this purpose it goes into the most minute details: specifying exactly what amount of evidence is requisite in each particular case; describing how divergent evidence is to be reconciled; directing which side is to be preferred where the testimony is conflicting; fixing the initial presumptions’ arising from the nature of the claim, and a multiplicity of further presumptions connected with the details of evidence. All this network, of rules and presumptions is binding on the judge: it forms at once a check upon the arbitrary exercise of individual judgment, and a ground for disclaiming personal responsibility and escaping odium: it is not he, the judge, who decides the case; the rules of Law provide for every detail, and it is merely his duty to refer to those rules. Such, so far as it can be expressed in a few words, is the principle of the system.”

From the facts highlighted above during the review of the events leading to and in this appeal it is necessary to examine whether the parties, issues and subject matter were the same in the 1962 case as those in the present appeal. The parties in the previous appeal No. SCA/CV.34/1962 were Abdulmumini and Haruna Argungu while those in the present appeal are Balan Ayye & 1 Or. and Musa Yar’Adua. From the records which include the previous judgment as well as the submission of the parties, it has been shown that Abdulmumini, the appellant in the previous appeal is the father of the appellants in the present appeal while Haruna Argungu, the respondent in the previous appeal is the maternal Uncle of the present respondent. Under the Islamic Law procedure, the appellants and the respondent in the appeal herein are privies of the appellants and the respondent in the previous appeal, hence they are bound by the earlier judgment.


From the records and the submission of both parties, the issues canvassed in both appeals centred on inheritance of an estate. It is only on the description of this estate that the respondent tried to convince us that the house in the previous suit was the bigger part of the House in question while the house in the present appeal is the small part of the house. He said the House was divided into two by a dividing wall which had been demolished 3 years ago by the purchaser of the smaller portion of the House in dispute. I have considered the arguments of both parties on this issue. I have also studied the previous judgment as well as the Record of proceedings in the Lower Courts. It has been observed from the records that the Upper Area Court visited the Locus In quo and sent an official with the parties to take measurement of the estate in dispute. From the Records, the Lower Court found that the house in the previous appeal and that in the present appeal is one and the same house. It was one house and not two as the representative of the respondent attempted to point before us. What is more, the inconsistencies pointed out in the submission of the representative of the respondent before us viewed against the background of the whole case showed that he could not have given a correct picture of the circumstances surrounding the subject matter in both cases. Consequently I hold that the house, the subject matter of the previous appeal is the same as the house which forms the subject matter of the present appeal. From the above review and findings, it is clear that the parties, issues and subject matter were the same in the previous case as those in the present section in which the plea of Estoppel per rem judicatam is raised.


In the light of the principles guiding the plea of Estoppel per rem judicatam and the facts of the previous and the present appeal, I hold that the conditions for the application of this plea have been satisfied. In consequence, I hold that the house which the respondent is claiming in the present action was the same house which the respondent’s uncle lost to Abdulmumini, the appellant’s father in the previous action. Since the house forms part of the Estate in the two suits, it is my view that the respondent herein is estopped by the decision of the Sharia Court of Appeal of Northern State sitting in Sokoto in case No. BC/34/1962 supra from disputing the title of the appellants in respect of the house and other properties making up the estate in dispute and i so hold. The appeal against the judgment of the Sokoto High Court appellate Division sitting in Bimin Kebbi dated 1013/88 is hereby allowed. The judgment of the Upper Area Court Bimin Kebbi confirming the estate comprising the house and two farms and plots in dispute to the appellants is hereby affirmed with N400 costs to each of the appellants.




I entirely agree with the judgment of my learned brother, Okunola, J.C.A., just read, that the house and farms which the appellant claimed against the respondents, at the Upper Area Court, Bimin Kebbi, had been previously litigated upon at the Sharia Court of Appeal of Northern Nigeria sitting at Sokoto, in 1962. In that case the parties were Abdulmumuini, the grandfather of the appellants, and Hamna, the Uncle of the respondent. The matter in dispute then were two farms and a house. The Sharia Court of Appeal of Northern Nigeria, presided over by the former Grand Kadi, Alhaji Abubakar Mahmud Gumi confirmed the judgment of Chief Alkali of Argungu and gave the house and the farms to Abdulmumini.


After the death of both Abdulmumini and Hamna the appellant sued the heirs of Abdulmumini and claimed for a house two farms and 2 plots. He alleged that his mother gave them to Dikko for safe-keeping when she remarried and left the house. It is difficult to believe that a house belonging to the junior sister of Haruna who was not long ago defeated in Court and ejected from Abdulmumini’s house could be given to Abdulmumini for safe keeping. If there was such a house why was it not given to Haruna himself who had just been ejected from Abdulmumini’s compound.


My learned brother has made a detailed consideration of all the issues in dispute in this case and has left little for me to add. Issa Mekwari who represented the respondent in this appeal made a submission, which contradicts the case presented before the trial Upper Area Court by the respondent. The respondent Musa Yar’Adua told the trial Upper Area Court that he inherited the house in dispute from his mother, but Isa Maikwara now says that Musa Yar’Adua inherited the house from his father, M. Nuhu.


For the fuller reasons given in the lead judgment, this appeal succeeds and it is allowed. I abide by the orders made on cost.




I agree.


Appeal allowed.



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