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3PLR/1992/9  (CA)


6 NWLR (Pt.245) 81

(1992) PART 245








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

This is an appeal against the judgment of the Kaduna State High Court sitting in its appellate jurisdiction at Kafanchan delivered on 21/7/89 by Hon. V.J.O Chigbue J (as he then was) and A.D. Yahaya J. The judgment was contained in an order remitting to the trial Upper Area Court Kachia, the case for the respondent to be administered a complimentary oath to strengthen his evidence that he owned the farmland in dispute. The order states further that where the respondent refuses to take that such would be offered to the appellant and where the appellant also refuses to take the oath the respondent should be allowed to retake the farmland in dispute.


The facts of this case briefly put is as follows:

On 22/5/86, the respondent herein sued the appellant herein at the Kachia Upper Area Court (hereinafter referred to as the UAC) for a declaration of title to a parcel of land at Kachia claiming that the appellant settled on his land through the consent of his children and brother Audu. On the other hand the appellant denied the claim and said he was on the land in dispute for 16 years. The trial Upper Area Court ordered the parties to call witnesses in support of their claims. In the end, the respondent called 2 witnesses ‑ Audu Madaki (PW 1) and Magni Auta (PW2) while the appellant called only one witness by name Sarkin Adage who had been listed by both parties. At the end of the trial the court gave judgment in favour of the appellant. Dissatisfied with this decision the respondent appealed to the High Court which after hearing the appeal reversed the decision of the Upper Area Court Kachia and in its place ordered that the case be remitted to the trial Upper Area Court Kachia for the respondent to be offered the complimentary oath to strengthen his evidence that he owned the farmland in dispute which the respondent took on 16/2/90.


The appellant was dissatisfied with this judgment and appealed to this court on ten grounds. From the 10 grounds of appeal, the appellant has formulated the following four issues for determination in this appeal viz:

(i)      What is the proper law applicable to the parties in this case?

(ii)     Can an appeal court make an order remitting a case for a trial court to administer complimentary oath to strengthen a party’s evidence?


(iii)    If the answer to issue (ii) is in the affirmative, what is the proper procedure, and was the proper procedure adopted in this case?


(iv)    Whether the Respondent proved his case by calling a credible and admissible evidence to entitle the respondent judgment by complimentary oath upon an order of the appellate court.


The appellant filed the appellant’s brief of argument, the respondent filed the respondent’s brief of argument and in addition the appellant filed a Reply brief. In the respondent’s brief, the respondent articulated his reasons in support of the judgment of the High Court but before doing so in the alternative, brought in the main a notice of objection against the entire appeal urging that the appeal be dismissed on the following grounds;


(i)      That the grounds of appeal contained in the Notice of Appeal should be struck out and the appeal dismissed because the grounds of appeal being grounds of mixed law and facts or at best of mixed law and facts and the leave of the appeal court having not been sought and obtained to argue such grounds, the court of appeal lacks jurisdiction to entertain these grounds of appeal by virtue, inter alia, of the provisions of Section 221(i) of the 1979 Constitution.


(ii)     That the grounds of appeal should be struck out because they are vague, argumentative or general in nature and do not constitute reasonable grounds of appeal.


See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 lines 29 BE ‑ 297

At this juncture, it must be pointed out that the issue formulated by the respondent in the alternative are similar to those of the appellants. The consideration of both sets of issues will depend on the outcome of the consideration of the above listed Notice of preliminary objection served by the respondent. Both counsel for the parties have filed their briefs of arguments as stated above on all the issues raised including the preliminary objection which was answered in the Appellant’s Reply brief. Both counsel adopted and relied on these briefs. In addition both counsel addressed us viva voce. I shall deal first with the Notice of Preliminary Objection.


Notice of Preliminary Objection:


Learned counsel to the respondent Emmanuel Toro Esq. filed a Notice of Preliminary Objection predicated on the two grounds highlighted above. By way of reply the learned counsel to the appellant Ibrahim N. Buba leading K. Usman filed a Reply brief which specifically addressed this issue. Both counsel addressed us viva voce on this issue. In the main, the learned counsel to the Respondent submitted that the enrolled order annexed to the Notice of Appeal at pages 20 ‑ 26 of the records discloses that the appellant only sought and obtained an extension of time within which to seek leave to appeal and leave to appeal to the court of appeal. He contended that the appellant never at anytime sought and obtained leave to appeal on grounds of appeal which he classified grounds 2 ‑ 10 in the instant appeal as. He particularly classified grounds 2, 5, 6 and 7 which questioned the exercise of the discretion of the lower court as dealing specifically with facts while others deal with mixed law and facts. Learned counsel submitted that the leave granted the appellant as aforesaid did not necessarily render those grounds of appeal competent since they were not valid grounds of appeal. He therefore contended that the instant appeal is incompetent and that the court lacks jurisdiction to entertain same in the circumstance. Counsel cited the case of N.N.S.C. v. E.S.V. (1990) 7 NWLR (Pt. 164) 526 Pp. 537 B‑C, 537 ‑ 8 H ‑ A, 549 E ‑ F.


By way of reply learned counsel to the Appellant, Ibrahim N. Buba relied on his Reply brief and submitted that after the first leave no further leave is necessary. He explained further that once leave to appeal is granted, the appellant needs not obtain leave to file grounds of mixed law and fact. Learned counsel cited the case of Aqua Limited v. Ondo State Sport Council (1988) 10 ‑ 11 SCNJ 26 pp. 35 ‑ 36 & 51 ‑ 53 (1988) 4 NWLR (Pt.91) 622.


I have considered the submissions of both counsel vis‑a‑vis the records particularly the Notice of appeal. The main issue here centres on whether leave to appeal is comprehensive enough to accommodate leave to appeal on grounds of facts or of mixed law and facts or leave to file such grounds. The answer to this poser can be found in Sections 220(1)(h) and 221(1) & 2 of the 1979 constitution which provide as follows:


“An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases.


Where the ground of appeal involves questions o law alone, decisions in any civil or criminal proceedings:


Subject to the provisions of section 220 of this constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal. The Court of Appeal may dispose of any application for leave to appeal from any decision of a High Court in respect of any civil or criminal proceedings in which an appeal has been hr Light to the High Court from any other court after consideration o the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application”.


From the notice of appeal annexed to the records as well as the motion for extension of time to apply for leave and leave to appeal granted by this court, the premise upon which this appeal was based was clearly stated. Paragraph 71 of the application states thus:


“An application:‑


Leave to appeal against the judgment of the Kaduna High Court delivered on 21st day of July, 1989 sitting in its appellate jurisdiction at Kafanchan wherein the respondent was asked to he administered a complimentary oath to strengthen his evidence that he owned the farmland”.


From the grounds of appeal and the above application for leave to appeal granted by this court. The grounds of appeal here are centred on the principle of oath taking in Islamic Law. Both in the 1979 and 1989 Constitutions, Islamic Law is recognised as one of the 3 legal cultures co‑existing in Nigeria. The General law, Islamic law and Customary law. A fortiori, an appeal on any aspect of Islamic law falls within the provision of Section 220(1) of the 1979 Constitution supra as one “Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings”. The Constitution says such an appeal shall lie from the decisions of a High Court to the Court of appeal without leave. This was clearly put by the Supreme Court in NNSC v. E.S.V. (1990) 7 NWLR (Pt. 164) 526 P. 528 Paragraph 3 as follows:


“It is settled law that if the ground of appeal to the Court of Appeal from the Federal High Court involves questions of law alone, the appellant can appeal as of right. This is made possible by virtue of the provisions of Section 220(1)(b) of the 1979 Constitution.


(Rabiu v. The State (1980) 8 ‑ 11 S.C.130 at 156, 203 ‑ 204, Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104; Ifediorah v. Umeh (1988) 2 NWLR (Pt. 74) 5 at 13 referred to and followed)”.


Similarly, in the earlier case of Faleye v. Otapo (1987) 4 NWLR (Pt.64) 186 at P.188 Para. 1, the Supreme Court made a similar emphasis on the point when it held thus:


“The Constitution of 197 provides under Section 220(1)(b) that an appeal on grounds of law only from decisions of High Court to Court of Appeal can be canvassed without leave of court”.


In the instant appeal, the appellant sought and obtained leave in accordance with provision of Section 221(1) of the 1979 Constitution (hereinafter referred to as the Constitution) in his application for extension of time within which to appeal and leave to appeal discussed supra. To my mind once this leave to appeal has been sought and obtained no additional leave is required in the circumstances of this case. This was the view of the Supreme Court in Aqua Limited v. Ondo State Sport Council (1988) 10 ‑ 11 SCNJ 26 pp. 35 ‑ 36 and 51‑ 53 (1988) 4 NWLR (Pt. 91) 662. The court made the following pronouncement:

“Section 221(1) of the Constitution covers appeal against interlocutory decisions of the High Court and appeals against final decisions in appeals brought before the High Court from Court lower than the High Court involving Questions of facts; or mixed law and facts. A person wishing to appeal in a situation covered, therein must first obtain leave of the High Court or the Court of Appeal”.

It is clear from the provisions of Sections 220 and 221 of the Constitution that the Respondent in the instant appeal is reading into these provisions what are not contained therein. No law can take away a right conferred by the Constitution save the constitution itself. This was emphasised by Karibi‑White JSC in Aqua Limited v. Ondo State Sport Council supra on pages 52 ‑ 53 Lines 41 ‑ 42 and 1 ‑ 17 as follows:


“It is elementary and fundamental preposition that a right conferred by the constitution can not be taken away by any other provision except by the constitution itself. The constitution having conferred a right of appeal as of right, the Court of Appeal Act or Rules of practice made under the Act which derive their force from the constitution cannot take away such a right. Any law so made will be inconsistent with the constitutional provision and void See S 1(3) of the Constitutional 1979. The provisions of Section 25 of the Court of Appeal Act 1976 merely regulate the manner of exercise of right and does not purport to take it away ….


The grounds of appeal are merely the reason given why the decision is wrong and ought to be set aside by a higher Court. This is exemplified by Section 25 of the Court of Appeal Act which prescribes the period within which notice of appeal shall be given whether the decision appealed against is interlocutory or final. The period of notice is not relevant to the grounds of appeal which the appellant wishes to file”.


In the light of the foregoing, I hold that the objection by the appellant is misconceived and it is accordingly dismissed. What is more the learned counsel to the respondent referred our attention to the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 P. 287 to effect that the grounds as well as the authority cited. The situation in Nsirim case supra was that particulars of grounds of appeal were not provided for as they were incorporated in the grounds as such the application to strike Out the grounds failed. On the other hand, the appellant’s adversary were not given a surprise in the instant appeal since every complaint in the ground of appeal is set out with particularity and certainty thereby giving the respondent due notice of the nature of grievance. In such a situation the ground cannot be said to be vague or general. See Onifade v. Olayiwola (1990)7 NWLR (Pt. 161) 130 P. 156. What is more the Respondent having withdrawn his prayer I & II on his Motion on Notice dated 2nd April, 1991 and 29th April, 1991, it is clear that the preliminary lacks merit and it is accordingly dismissed. Having disposed of the preliminary objection the appeal will now be considered on its merits. In doing so it is intended to examine the issue for determination formulated by the parties which had been listed at the beginning of this judgment”.


Both counsel to the parties adopted their briefs filled herein and addressed us viva voce. Learned counsel to the appellant referred to issue No.3 as framed by respondent in paragraph 3.1 (iii) of page 5 of their brief. Counsel also referred to paragraph 5.3 of page 3 of the appellant’s brief and submitted that loth parties agreed that there was no need for the complimentary oath ordered by the High Court as there was no evidence on the lex‑situs. In view of this learned counsel urged the court to allow the appeal.


By way of reply, Mr. Emmanuel Toro, learned counsel for the Respondent after adopting the Respondent’s brief referred to 1st ground of appeal at p.20 of the records (i.e. the Omnibus ground) as well as paragraph 5.17 of the appellant cannot abandon the argument because the effect is that issue has not been canvassed since no issue has been formulated against that ground.


I have considered the arguments of both parties vis‑a‑vis the records and the prevailing law. I agree that since ground 1 has been abandoned by the appellant, it should be and is hereby struck out. The main issue remaining to be considered to my mind is the applicable law since there was no evidence of the lex‑situs given in the present case. After this has been resolved the issue of whether the High Court was in order in remitting the appeal back to the trial Upper Area Court for oath taking will then be considered.


With respect to the addressed of both counsel regarding the lack of evidence on the lex‑situs which should be the applicable law, it is necessary to consider the next alternative permitted by law. This poser had come for consideration by the West African Court of Appeal in the earlier case of Ghamson v. Webill (1947) 12 WACA 18 in the case, a dispute arose over title to be a piece of land in Winneba, where generally Efutu custom applied. Both parties, had traced their alleged titles back to a previous owner who had been a Fanti woman, and in that situation, it was held by WACA that Fanti, and not Efutu law was applicable. M’carthy J. observed:


“though Fanti law would not ordinarily be binding between Webill, an Efutu, and Kra, a Fanti, it is in this case because Webill’s claim depends on the issue of succession and he claims through the Danguahs, who are in this respect subject to Fanti Customary law”.


This is an example of where in the absence of evidence of the lex‑situs, the personal law of the previous owner was used. Conversely, in circumstances where the personal law of the deceased owner had net been sufficiently established. Say where it is unknown, it may be permissible to fall back on the lex‑situs of the area as was done in the case of Ekem v. Nerbo (1947) 12 WACA 258 another Ghanaian case decided very shortly after Ghamson v. Webill (supra). From the above authorities it is clear that where the lex situs is not established or unknown it may be permissible to fall back on the personal law of the parties. The appellant agreed that both parties being Muslims, the lower courts were right in applying the Islamic law. On the other hand the respondent’s counsel was of the view that the inference of personal law of the parties should not be readily drawn from their religious beliefs. I have considered the arguments of both sides on this issue. The arguments raised the problem of choice of law of a Muslim under our Constitution. By Section 242 of the 1979 Constitution, similar to the provision in the 1989 Constitution, Islamic law applies to Muslims and to Muslims only in civil proceedings. In the context of these provision, this court had found occasion to define who a Muslim is for purposes of the application of Islamic law in such proceedings. Thus, in the recent case of JauroAlhaji Fadaya v. Adamu Alhaji Isa unreported appeal No. CA/J/81s/90 delivered on 19/2/92 by this panel of the Court of Appeal in Jos, it was held per Okunola JCA on the issue of Choice of law thus:


“that once a person is born into Islam or converted into same when he merely has to believe


LAILLAHA ILLA ALLAH MOHAMMED RASULULLAHI (meaning I accept the oneness of Allah and the Prophethood on Mohammed SAW) he is a Muslim and Islamic law becomes the personal law of the person.


See the Privy Council decision in REID 1965 AC 7341”

See also the earlier case of Abdul Rarqaki v. Agha Mohammed (1893) 21 indian Appeals 56.


This is why it has been asserted that every muslim, whether he be prima facie, legal or real will thus be presumed to be a Muslim until it is proved that he is not a real Muslim.


See Jauro Alhaji Fadaya v. Adamu Alhaji Isa supra. Thus, since the parties have neither denied nor rebutted the presumption, the lower courts were in order in applying Islamic law in the proceedings. This accords with both the 1979 and the 1989 Constitutions.


The next issue to be resolved is whether the proper Islamic law procedure has been followed by the High Court in the instant appeal. To answer this question it is necessary to review the facts of the case vis‑a‑vis the position of the law. The respondent sued the appellant herein for declaration of title over the disputed farmland. The appellant relied on the common male witness who confirmed his claim to the disputed land. The trial lower area court awarded the disputed farmland to the appellant based on the evidence of this one male common witness. The respondent appealed to the High Court. The High Court allowed the appeal and remitted the case back to the Upper Area Court to administer the complimentary oath on the respondent and confirm the farmland to him. The case went to the Upper Area Court where the respondent took the oath. The farmland was awarded to the respondent. The appellant has appealed against the decision to this court contending that if the oath were to be taken he should be given the first option being the person in possession and not the respondent as the high Court has ordered in the instant appeal. As I said earlier on, I have considered the submission of both parties vis‑a‑vis the records. I will say from the start that the whole submissions boils down to burden of proof in Islamic law particularly in relation to ownership of property in possession of another person. In the instant case the plaintiff/respondent failed to adduce evidence to discharge the burden of proof required under Islamic law. The position here was that the two witnesses produced by him did not prove his case nor the common witness invited by the trial court. In consequence, he had no witness to support his claim of ownership. The question to ask is what should the court do where a plaintiff/respondent fail to prove his claim against a defendant/appellant that is in possession as in the instant case. It is necessary to observe that this poser has received the attention of this court in recent times in Umaru Alhaji Garba v. Adamu Dogon Yaro (1990) 1 NWLR (Pt. 165) 102 P. 104 where this panel held on burden of proof where the plaintiff/respondent claims property in possession of the defendant/appellant under Islamic law as follows:


“Where a person claims property which is in possession of another, that person is required to prove his case by calling witnesses and if he fails to do so, the defendant will be called upon to take the oath of rebuttal, but where the defendant has been in undisturbed period of prescription, he will not be called upon to subscribe to any oath in which case, the plaintiff’s case will be dismissed.


(Mohammed v. Idi 1 (1961 ‑ 1989) SLRN 229 referred to and adopted)”.

See also:


(i)      Abba Makalish v. Zakari & Ors. CA/K/24s/84


(ii)     Ikhamul Akham p. 264 verses 4 ‑ 7 where the learned author stated thus:

“He who claims ownership of a thing in possession of another shall be required to adduce evidence in support of his claim, the person in possession shall not be bound to call evidence to establish how he owns it”.


See also:

Abdullahi Mogaji Mafoludo v. Usman Akanbi Ita Alamu (1961 ‑ 1989) 1 SLRN 163.


In the light of the foregoing, I hold that since the respondent who was plaintiff at the Upper Area Court, was not able to prove his claim by evidence, the trial Upper Area Court was right in entering judgment in favour of the defendant/appellant who was in prescriptive possession of the disputed property for 16 years by dismissing the claim of the respondent. The decision of the trial Upper Area Court in this regard was in accordance with the principles of Islamic law and I so hold. In consequence, this appeal succeeds and it is allowed. The judgment of the Kaduna State High Court in appeal No. KDH/196 A/86 dated 21/7/89 presided over by V.J.O. Chigbue J. (as he then was) and A. Yahaya J which reversed the earlier decision of the Upper Area Court Kachia is accordingly set aside. In its place the judgment of the Upper Area Court Kachia is hereby affirmed. The ownership of the disputed farmland is hereby awarded in favour of the defendant/appellant. I also award costs of N500 in favour of the appellant.


MOHAMMED, J.C.A.: I agree.


AIKAWA, J.C.A.: I agree.


Appeal allowed.


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