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3PLR/1993/70  (CA)



1 NWLR 766








RELIGION AND LAW – ISLAMIC LAW – Hauzi (Prescription) in land dispute, – Proof under Islamic law.

PRACTICE AND PROCEDURE – COURT- Sharia Court of appeal; -Jurisdiction to deal with Islamic personal law



Lead judgement Delivered by Mohammed JCA:


The appellant, Mallam Idrisu Gulma, filed a suit before the Upper Area Court, Gwadabawa, in Sokoto State, claiming the farmland in dispute which is in the possession of the respondent. In his statement of claim the appellant averred that the farmland in dispute was given on loan to the respondent by one Nakura, on consideration that the respondent shall pay tribute form the proceeds of yields from the farm.


The appellant explained further that Nakura was the husband of one Hajo who was a sister to his mother, Maryam. After the death of Nakura, the appellant demanded for the return of the farmland to the rightful heirs, but the respondent refused, saying that he purchased the farm from Nakura.


The respondent, on his part, told the trial Upper Area Court that Nakura sold the farmland to his grandmother. His grandmother gave it to his father, Bahago, and he was born in the said farm, 35 years before the commencement of the trial at the Upper Area Court.


The trial Upper Area Court directed the appellant to produce his witnesses in proof of his claim. His first witness was Mamman Magawata Dan Gidan Dankura, and his testimony was as follows:


“I heard that the farm belonged to Idrisu’s grandfather Uba and he sold it to our parents. Apart from this I know nothing.”


The second witness was Muhammadu Masara whose testimony goes thus:


“The farm belonged to Uba though we do not know when she farmed the land, but we know that Dankura’s father took Uba’s farm in custody, but how this farm got into Ahmadu’s possession. I don’t know”.


Thereafter the court asked the appellant whether he had any other witness who could testify that the farm belonged to Hajo (appellants maternal aunt and Dankura’s wife). The appellant answered as follows:


“No, I have no other witness to bring”.


The Court then turned to the respondent who produced two witnesses, Manuga and Jae. Manuga told the court that Nakura sold the disputed farm to the grandmother of the respondent. She gave the farm to the respondent’s father, Garba Nagomaje who also gave it to his son. Ja’e also gave similar evidence. As quite correctly pointed out by the learned counsel for the respondent, the court ought to have given judgment after it had heard the testimonies of two witnesses from both the appellant and the respondent. Instead, the Upper Area Court Judge adjourned the case to another date and when the parties appeared they were permitted to call three additional witnesses each.


At the close of the hearing the trial judge reviewed the evidence adduced before him, and concluded as follows:


“Mallam Idrisu was able to present three witnesses who testified that that farm originally belonged to his grandmother. Ahmadu also presented three witnesses who testified that the farm was sold to his grandmother Nana by Dankura”.


The court then asked the appellant if he was ready to take an oath that the farm belonged to his grandfather Uba and not Dankura. The appellant took the oath and was declared the owner of the farmland.


Dissatisfied with this decision the respondent appealed to the Sharia Court of Appeal, Sokoto. The Sharia Court of Appeal considered the appeal and found that none of the witnesses called by the appellant gave evidence in support of his claim (Da’awa); that Nakura gave the farm in dispute on loan to the respondent. The court then referred to the Tradition of the Holy Prophet which says:


“The burden of proof rests on the plaintiff while the defendant is to swear if he denies the claim”.


The Sharia Court of Appeal thereafter observed that since the appellant had failed to produce sufficient evidence in order to prove his claim, and that the respondent was in possession of the farm in dispute, it was the respondent who should be asked first, if he was ready to swear and not the appellant as the trial Upper Area Court erroneously did. The Sharia Court of Appeal asked the respondent to swear that,


“Dankura did not lend the farm to him and that it was his grandmother who bought the farm from him (Dankura) who subsequently gave it to Bahago (his father) and which he inherited from him”.


The respondent took the oath and the Sharia Court of Appeal reversed the decision of the Upper Area Court, Gwadabawa, and allowed the appeal. It is against the said decision that the appellant filed this appeal. The learned Counsel for the appellant Mikailu Alkali formulated the following issues for the determination of the appeal in the brief he prepared for the appellant:


“2.1. Is it right for the Sharia Court of Appeal Sokoto to call upon the respondent (then appellant) to take an oath so as to award the farm in dispute to him without stating any reason for so deciding.


2.2.    Had the appellant not established his claim before the Upper Area Court, Gwadabawa in accordance with the provision or requirement of Sharia – Islamic law.


2.3.    Is it right for the Sharia Court of Appeal to assume jurisdiction as to entertain the Appeal when the issue before Upper Area Court Gwadabawa was whether the farm in question was sold?


2.4.    Had the Sharia Court of Appeal, Sokoto not breached the general principle of Islamic Law which say that a party must be restricted, to his DA’AWA or claim without introducing any change or adding anything theretofore?”


The issues formulated by the learned counsel for the respondent for the determination of this appeal are based on similar questions except that an additional point raised is a question based on the Islamic Law principle of Hauzi (prescription). The learned counsel queried whether the Islamic principle of prescription is not applicable to the respondent who has been in possession for more than 30 years without paying (tribute) to the appellant or anyone.


In his argument in support of the first issue the learned counsel for the appellant submitted that he had established his claim (Da’awa) through the witnesses he called, and since those witnesses had not been impeached, the Sharia Court of Appeal was in error to reverse the decision of the Upper Area Court. He referred to Bahjah, Vol.1, at page 111 and Fawakihu Dawani, Vol.2, at pages 302 to 304. The learned counsel also referred to Tabsiratul Ahkam, Vol.2, at page 274 where the learned author referred to the judicial oath (Yeminu Qada.i) where the claim relates to the property of a deceased or absent person.


In answer to the above submission the learned counsel for the respondent referred to the case of Tukurwa v. Kwa-Kwa (1992) 2 NWLR (Pt.224) 449 at 457 where this court opined that under Islamic Law “he who assets must prove it”. The legal burden of proof is on him. The learned counsel thereafter referred to the evidence given through the testimonies of appellant’s witnesses. He pointed out that the testimonies of witnesses were in conflict with the statement (Da’ awah) made by the appellant.


I quite agree with the submission of the learned counsel for the respondent because the appellant’s statement was that the disputed farm was given on loan to the respondent, whereas his witnesses were saying that the heirs of Usman, the original owner of the farm, divided the farm into two and gave half to Mamman and the other half to Ahmadu’s grandmother. The appellant also failed to prove that the farm was in possession of Dankura as a custodian.


On the second issue the learned counsel for the appellant seems to have got mixed up over the requirement of proof. It is the claim of the appellant that the farm was given to the respondent on loan. However, the evidence of his witnesses is at variance with this claim. I have reproduced the testimonies of the first two witnesses produced by each party and it goes without saying that the evidence of the witnesses for the appellant cannot be relied upon to give judgment in his favour without calling upon the respondent to produce evidence for his defence. The evidence of the other three witnesses who were later called is highly suspicious and clearly at variance with the Da’awah of the appellant. The learned counsel for the respondent endeavoured to produce the Islamic Law Procedure as laid out in Fawakihu Dawani, Vol.11 at page 301. A similar provision has been summarised in the Area Courts (Civil Procedure) Amendment Rules 1980, of Sokoto State. The only error made by Umaru Dahiru, learned counsel for the respondent, is where he said as follows:


“After the plaintiff has closed his case the court shall call upon the defendant to give his own evidence and, after him, his witnesses shall also be called to give their evidence”.


There is no provision in Islamic Law Procedure where a defendant given evidence. I however agree with the learned counsel for the respondent that the respondent’s defence has been supported by the evidence of his witnesses.


The third issue is based on the question whether the Sharia Court of Appeal has jurisdiction to determine this appeal. Aminu Mikailu Alkali did not elaborate on this submission. He only argued that the issue concerns sale of land which was not part of the jurisdiction of the Sharia Court of Appeal, as provided under S.242 of 1979 Constitution. Usman Dahiru, for the respondent, referred to the case of Abuja v. Bizi (1989) 5 NWLR (Pt.119) 120 at 127 and pointed out that this Court should have given effect to the intention of the legislature and accept the provisions of Decree No.26 of 1986. I believe that the learned counsel has not read the opinion of this Court very well over the ambiguity created in the promulgation of Decree 26 of 1986. This court observed that the original jurisdiction of the Sharia Court of Appeal, as provided under S.242 of 1979 Constitution was left intact, thus making the amendment ineffective.

Looking at the statement of claim of the appellant it is my view however that this dispute is within the disputes listed in the case of Adamu Maihodu v. Adamu S/Kaji (1989-1991) 2 S.L.R.N. page 144 at 148. In that case a list has been given on how a dispute could be a subject of succession as envisaged by S.242(2)(c) of 1979 Constitution. The dispute have been listed as follows:-


(a)     A dispute over the failure to distribute the estate after the death of the deceased.


(b)     A dispute over the devolution of the estate between the heirs.


(c)     A dispute over any heritable estate which any person withholds away from the heirs.


(d)     A dispute over the right to take a particular property within the estate.


(e)     A dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime.


(f)      A dispute over payment of a debt incurred by the deceased in his lifetime, from the estate he or she had left behind.


(g)     A dispute over the exclusion of an heir from inheriting from the estate. And all such disputes which can be attributed to the estate succession”.


I believe that the farmland in dispute is claimed by the appellant for the distribution of the estate left behind by Usman to the heirs. This is borne out of the statement made by the appellant where he said, “when I told him to hand over the farm to the rightful heirs, he told me that he bought the farm from him…” Since it is the claim of the plaintiff which determines the jurisdiction of the court it is beyond any doubt that the Sharia Court of Appeal has jurisdiction to hear this appeal.


The fourth issue has been answered in the previous submissions. The appellant counsel must not forget the fact that the appellant was the plaintiff before the trial Upper Area Court. It was his Da’ awah which is the subject of this trial. Judgment could have been given in his favour if he had succeeded in producing two male unimpeachable witnesses who had given evidence directly on the issue in dispute. Such judgment could be give even before the defendant was called to produce witnesses in rebuttal of the plaintiff’s assertion. See Malarima Kalli Mintar v. Alhaji Bukar Kori (1989) 1 NWLR (Pt.100) 718.


I have not touched the issue of Hauzi (prescription) raised by the respondent’s counsel, in his brief, because the parties have not dealt with it at either the trial or before the Sharia Court of Appeal. In any event the claim of the appellant before the trial Upper Area Court is that the farm was in possession of the respondent on loan. This assertion takes out the farmland from the application of Hauzi. No matter how long a property is in possession of another, if it is on loan, a defence of Hauzi is not open to the defendant to plead.


In the result this appeal has failed. The judgment of the Sharia Court of Appeal, Sokoto delivered on 8th December, 1988, is hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N400.00.


{Nigerian Cases referred to}

Abuja v. Bizi (1989) 5 NWLR (Pt.119) 120

Maihodu v. Okaji (1989-1991) 2 SLRN 144

Mintar v. Kori (1989) 2 NWLR (Pt.100) 718

Tukurwa v Kwa-Kwa (1992) 2 NWLR (Pt.224) 449


M.A. Mikailu Alkali – for the Appellant

Umaru Dahiru – for the Respondent.


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