ABDULKADIR & ORS v. ABDULKADIR & ANOR (2017)

In The Court of Appeal of Nigeria

On Friday, the 17th day of February, 2017

CA/K/S/207/2015

Before Their Lordships

ABUBAKAR DATTI YAHAYA  Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA  Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI  Justice of The Court of Appeal of Nigeria


Between

1. SALISU ABDULKADIR
2. AHMAD ABDULKADIR
3. BASHIR ABDULKADIR
4. USMAN ABDULKADIR-Appellants

AND

1. TIJJANI ABDULKADIR
2. SANI ABDULKADIR-Respondents

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RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment):This is an appeal against the decision of the Sharia Court of Appeal, Kaduna State herein referred to as the lower Court, sitting at Zaria, wherein the Appellants, being dissatisfied with the decision of the Upper Sharia Court No. 3, Tudun Wada, Zaria, herein referred to as the trial Court, appealed against the decision of the said trial Court which was upheld by the lower Court, hence, the filing of this appeal.
BRIEF STATEMENT OF FACTS
The Appellants herein were the Plaintiffs at the Upper Sharia Court No. 3 Tudun Wada, Zaria, via the instructions of the Kaduna State Sharia Court of Appeal for the said Upper Sharia Court to retry the case for sharing the estate of late Sheikh Abdulkadir Aliyu which included 4 houses.
The Defendants who are the Respondents herein admitted and conceded that 3 of the houses are part of the estate of late Sheikh Abdulkadir Aliyu but claimed the 4th house as theirs. The trial Court at its decision at the end of the case gave title of the 4th house to the Defendants, being dissatisfied, the plaintiffs appealed to the lower Court, that is the Kaduna State Sharia Court of Appeal which upheld the decision of the trial Court. Against the decision of the lower Court, the appellants filed the present appeal.
Parties joined issues in this appeal by filing and exchanging briefs of argument which same were identified and adopted on their behalf by their learned counsel on 22/11/2016 when the appeal came up for hearing.
The learned counsel for the appellants M. M. Yahuza Esq. who settled the Appellant’s Brief of argument filed on the 18th day of August, 2015 and deemed filed and served on the 13th of October, 2016; adopted same and urged us to allow the appeal and also set aside the judgment of the lower Court.
The learned counsel to the Respondents, A. H. Bello Esq. who settled the Respondent’s Brief of Argument filed on the 8th day of November, 2016; adopted same and urged us to dismiss the appeal, same lacking both in merit and substance.
ISSUES FOR DETERMINATION 
The appellants formulated three (3) issues for determination of the appeal from the four (4) Grounds of Appeal, to wit: –
a. Whether the Respondents are duty bound to produce witnesses to establish their claim for the 4th house as theirs personally.
b. Whether under Sharia Law, 40 years is not a requirement for the establishment of prescription (hauzi) where there is blood ties.
c. Whether the lower Court was not perverse when it upheld the decision of the trial Court of conferring title of the 4th house to the Respondents herein on the bases of prescription (hauzi) in exclusion of Ahmad Abdulkadir even though he also lived in the house in question together with the Respondents.
The Respondents adopted the three (3) issues formulated by the Appellants for determination of the appeal.
ISSUE NO. 1
The learned counsel for the Appellants submitted that the Respondents who were the Defendants before the trial Court (Upper Sharia Court No. 3, Tudun Wada, Zaria) who denied part of the claim of the Appellants and Plaintiffs at the trial Court, that is house No. 4, did not call evidence in proof of their denial as required by law. That under Islamic law, a Defendant can also be a Plaintiff where he makes a claim and the burden of proving his claim lies on him. Referred to the case of BELI vs. UMAR (2005) 12 NWLR (Pt. 939) p. 325
He contended that their failure to discharge the burden of proof that lies on them has resulted to an error on the lower Court when it upheld the decision of the trial Court. Referred to page 84 of the record.
That at the trial Court, the Defendants had informed the Court that they would call witnesses to establish their claim that the house No. 4 belong to them and the trial Court adjourned the case for the Defendants to call their witnesses. Instead, at the adjourned date, they retracted and said that they would not call witnesses being Defendants in the case. Referred to pages 13 and 14 of the record.
That the Defendants only claimed that they lived in the house in dispute for over fifty (50) years without calling evidence to that effect. It was contended that the claim of the Defendants/Respondents cannot stand as evidence, as parties under Islamic law are not competent witnesses for their case; their statement must be supported by the testimony of two (2) male unimpeachable witnesses or one (1) male and an oath or a male and two (2) female witnesses or two (2) female witnesses and an

…………………….B…………………….

oath. Referred to the case of DAHIRU GAYA vs. UWANI GAYA (2007) 3 SLR (Pt. IV) pp. 145 146 paragraphs 103 – 120.
In conclusion, it is submitted that for a Court to rely on a finding and enter judgment one way or the other, that finding must be borne out of evidence.
In response, the learned counsel to the Respondents argued that the Respondents are not bound to call evidence to prove their claim of house No. 4 as posited by the Appellants. He referred to the English translation of TUKHFATUL HUKKAMMI A Guide to Advocacy by Abbas Abdullahi Machika, page 8 lines 20 – 21 on who is a Plaintiff vis-a-vis what is a Claim? It states: –
“The Plaintiff is the person whose statement runs counter to the original state of affairs or custom that will prove the truthfulness of his claim.
Whereas the Defendant is the one whose statement is reinforced by custom and the original state of affairs bears witness thereto.”

In view of the above principle of law, we are urged to come to the conclusion that the Respondents were not in the circumstances of the case, plaintiffs who made a certain claim and therefore bound to call witnesses to prove same. That there is no dispute that the house is in their possession, even the law presumes that they are the owners and anybody who challenged same is under a duty to so prove. That if he fails to do so, the Court never ask the person in possession on how he owns it or to subscribe to an oath. Referred to the case of DAN SULE vs. BUKI KERA (1998) 13 NWLR (pt. 561) 304.
Counsel contended that the fact in support of the Respondents’ claim is more than mere statement of a party to a case, as the house is under the possession and occupation of the Respondents for a long period of time – between 30 – 40 years. Referred to pages 7 – 8 and 37 – 38 of the record of appeal.
That the case of DAHIRU GAYA Vs. UWANI GAYA relied upon by the Appellants also reported in SARAUNIYA LAW REPORT (Pt. IV) p. 145 at 146 is not helpful to their case. He argued that the facts are distinguishable, as in the former, the Defendants did not only deny the Plaintiff’s claim simpliciter but made a claim that he acquired the Grave yard from Sarkin Gaya Sufyan and built the said house on it.
In conclusion, we are urged to resolve this issue 1 against the Appellants.
ISSUE NO. 2
The learned counsel for the Appellants submitted that under Sharia Islamic Law, for a person to successfully claim a house or a land as his before the Court of law based on prescription (Hauzi), such a person must prove to have had an undisturbed possession for a minimum of Forty (40) years, where there is a blood tie between him and the other parties to the case. Referred to TELA & 1 OR. vs. KWARAGO (2013) 1 SQLR (Pt. 111) 26 paragraphs B – C.
That it has been established that the Defendants/Respondents are blood brothers to the Appellants, all of whom are heirs to late Sheikh Abdulkadir Aliyu. Referred to page 2 of the record of proceedings of the trial Court.
It was contended that the lower Court was in error when it upheld the judgment of the trial Court even though at the time this case was first instituted at the Upper Sharia Court No. 3, Tudun Wada Zaria, Sheikh Abdulkadir Aliyu had died only 30 years back. Referred to pages 22 and 82 of the record of proceedings of the lower Court.
That the lower Court was also in error when it held that there was quarrel between the Appellants and the Respondents, hence the period of prescription (Hauzi) is 10 years in this circumstance and not 40 years; therefore, the Respondents have acquired the house in dispute by prescription. Referred again to page 82 of the record.
Counsel submitted that there was no evidence of any quarrel or dispute between the Appellants and the Respondents throughout the record of proceedings of the trial Court to warrant the reduction of the minimum period of 40 years for prescription (Hauzi) where there is blood tie. That above all, the lower Court erred by holding that the Respondents have acquired the house in dispute by prescription (Hauzi) even though the entire case borders on inheritance and inheritance is one of the exceptions to prescription. Referred to the case ofHADA Vs. MALUMFASHI (2013) 1 SQLR (Pt. IV) p. 30 paragraphs D – A.
In response, the learned counsel to the Respondents submitted that the two Courts below were right in applying the principles of Hauzi – prescription in favour of the Respondents in the circumstances of this case. Placed reliance on the authorities relied upon by the two Courts below as in pages 29 – 30

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and 81 – 84 of the record of appeal. He urged us to uphold the decisions of the two Courts below and referred to MAWAHIBIL KALLAQ FI SHARHI LAMIYATIZ ZAKAKIY VOL.2 pages 12 – 13 where the learned author opines that it is not in all cases that a plaintiff fails to call evidence that a Defendant is called upon to swear an Oath of rebuttal. That one of such situations is where the Defendant is in possession of the subject matter as in the instant case. Referred to pages 7 – 8 of the record of appeal.
It is argued that the requirement of 40 years period in the case of prescription (Hauzi) between blood brothers is not without exception; as Islamic Jurists are of the opinion that 10 years may suffice in case of a person in exclusive possession as in the instant case. Referred also to the authorities on pages 29 – 31. That the Respondents were shown to have been making improvements and renovation on the house; thus, the period of 10 years is enough to invoke the principle of Hauzi as propounded by IBN RUSHDIE IN BIDAYATUL MUTAHID as in page 30 of the record. It was argued that the case of HADA vs. MALUM FASHI (Supra) is distinguishable from the facts of this case because in the former, the Defendant also claimed to have bought the house in question from Magajin Gari Aliyu while in this case, no such claim was made by the Respondents, they only claimed that the house belonged to them. Counsel referred to the book of TABSIRATUL AL-HUKKAM FI USULIL AQDHIYATWA MANAHIJIL AHKAM VOL. 2 page 93, thus: –
“The person in possession should not be asked to explain how does the thing in his possession came in to his hands.”
ISSUE NO. 3
The learned counsel for the Appellants submitted that the lower Court was in error when it upheld the decision of the trial Court which confirmed the title of the house in contention to the Respondents even though the trial Court did not rely on any evidence that warrant the exclusion of the 2nd Appellant when it gave the house in dispute to the Respondents despite the fact that the Respondents have admitted that the 2nd Appellant had lived together with them in the house for over 40 years, that is even before the death of their father Sheikh Abdulkadir Aliyu.
Hence the lower Court was biased toward the Appellants.Referred to pages 8 and 77 of the record of appeal.
It was submitted that the lower Court upheld the judgment of the trial Court without any cogent reason, especially evidence which prove that the 2nd Appellant did not live in the house in dispute together with the Respondents. Hence, the lower Court placed something on nothing to arrive at its decision.
In conclusion, it was submitted that for a finding to stand, it must not be perverse and that the reliance of the lower Court on the reasons of the trial Court was erroneous and also occasioned miscarriage of justice. we are urged to so hold and in consequence to allow this appeal.
In response, the learned counsel to the Respondents submitted that the trial Court was right when it delivered it’s judgment in favour of the Respondents to the exclusion of the 2nd Appellant who also did not claim the 4th house in dispute as co-owner. Referred to the case of HAJIYA KARIMATU Vs. MALLAM IDI SARAUNIYA LAW REPORT (Pt. III) pp. 172 – 183, particularly at pp. 179 – 180 paragraphs 74 – 82 where the court held inter-alia thus: –
A Court of law is not a charitable organization, it can only grant what has been asked for where there is evidence to support it.”
That the findings of the two Courts below is not in any way perverse as not even the Appellants denied the fact that the Respondents have been in possession of the house for more than 30 years at least before the death of their father up to when the action was initiated. That the law is that long possession of land is equivalent to full evidence. Referred to the case of HAJIYA KARIMATU vs. MALLAM IDI (supra) at p. 180 paragraphs 97 – 101 where it was held that: –
“Long possession of almost 40 years magnitude is equivalent to cogent and full evidence.”
It was argued that the Appellants watched indolently the 4th house being occupied by the Respondents for more than 30 years before bringing their claim, no impediment is shown to have prevented them from instituting an action timeously. That the Court will not listen to them even when they have witnesses to call. Referred to HADA vs. MALUMFASHI (supra) at p. 30 paragraphs A – D & KYARMI Vs. MUNGADI (2014) 2 SQLR (Pt. IV) pp. 607 – 610 paragraphs F – A where it was held that: –
“Let me reiterate the current position of the law that unless a

…………………….D…………………….

decision on appeal is found to be perverse, the Appeal Court does not disturb such a decision. No perversity is shown to exist in the decision of the U. A. C. The lower Court affirmed it. It is concurrent decision which is seldom disturbed by the Appeal Court.”
That is, the same position applied to the present case.
In conclusion, learned counsel enjoined this Court not to disturb the finding/judgments of the two (2) Courts below as there is no basis for doing so. Consequently, we are urged to dismiss the appeal, same lacking both in merit and substance.
RESOLUTION OF ISSUE NO. 1
Having regards to the claim of the Appellants who were the Plaintiffs at the Upper Sharia Court No, 3, Tudun Wada, Zaria and also the Appellants before the lower Court, i.e. Sharia Court of Appeal, Kaduna State, they sued the Respondents who were the Defendants at the Court of first instance for sharing of the estate of their late father (Sheikh Abdulkadir Aliyu) which according to them is house No. 110, Limancin Iya, Zaria City. Upon visit to the locus inquo by the trial Court, it was shown that the estate comprises of four (4) houses. From the four houses, one is the subject of this suit having been denied as part of the estate of late Sheikh Abdulkadir Aliyu. The Respondents claimed house No. 4 in controversy as theirs for reason of being in occupation and possession of same.
The Appellants opined that with such a claim, the Respondents migrated to the position of Plaintiffs at the trial Upper Sharia Court with burden of proving their ownership; which they (Respondents) failed to do.
The Respondents argued that the burden of proof never shifted to them having not claimed ownership by virtue of gift or purchase of the said house. I am in tandem with the argument of the Respondents in view of the principle of Islamic law as contained in the English Translation of TUHFATUL HUKKAM (Supra).
The burden of proof in establishing that the 4th house form part of the estate of late Sheikh Abdulkadir Aliyu and ought to be shared alongside the three houses not in controversy remained on the Appellants/Plaintiffs which they neglected to do.
In this case, the trial Court on inspection, found the fourth house in dispute in occupation of the Defendants now Respondents. The onus of showing that the Respondents are not in occupation and possession of the house as owners remained on the Appellants. Even though the Respondents opted to adducing evidence which they retracted from, that did not discharge the onus on the appellants. This I found and so hold.
See the case of NABABA DANSULE Vs. ISHAKU BIKI KERA (1998) 13 NWLR (Pt. 581) 300 at 304 paragraphs A  Bwhere it was held thus:
Where the subject matter in dispute is a property and it is in possession of the Defendant such that Hauzi (prescription) has caught up with it, then it shall not be necessary for the Defendant to subscribe to the rebuttal Oath except where the property was on loan to the Defendants.”
There is no evidence to show that the 4th house was loaned to the Respondents herein and we cannot speculate to that effect.
Cases of BELI Vs. UMAR and DAHIRU GAYA Vs. UWANI GAYA (Supra) cited by the Appellants cannot be of assistance to them having regard to established principle of law that – “He who Asserts Must Prove.”
In view of the aforesaid, the issue under reference is answered in the negative and resolved in favour of the Respondents against the Appellants.
RESOLUTION OF ISSUE NO. 2
Under the Sharia Law, forty (40) years is a requirement for the establishment of prescription (Hauzi) where there is blood tie. This principle of Islamic law is not without exception to the general rule as Islamic Jurists are of the opinion that lesser number of years, even Ten (10) years may suffice in case of a person in exclusive possession as in the instant case. See BIDAYA YATUL V. MUJTAHID in which Imam Ibn Rushd said that ownership based on relationship where there is no joint ownership of the house and the person claiming the house has stayed in it for Ten (10) years either the house was destroyed or he built same, the house becomes his.
Also Imam Ibn Farhun said that the ground of ownership based on prescription (Hauzi) of a house, farmland or any other property for a period of Ten (10) years, the person is the actual owner of the place based on TABSIRATUL HUKAM LILBINI FARHUN ALMALIKI.
It is explained that when the property in dispute is not under the joint occupation of the parties as in this instant case, the house in question is in the hands of the

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Respondents to the exclusion of the Appellants, moreover the Respondents were shown to have been making improvements and renovations on the house; thus the period of 10 years is enough to invoke the principle of Hauzi as propounded by Imam Ibn Rushd in BIDAYATUL v. MUJTAHID.
The Appellants’ argument that inheritance is one of the exception to prescription (Hauzi) relying on the case ofHADA Vs. MALUMFASHI (Supra) is of no moment. This is because the case of HADA referred to is distinguishable from the facts of the instant case because in HADA Vs. MALUMFASHI, the Defendant also claimed to have bought the house in question while in this case, no such claim was made by the Respondents.
It is of interest to note that the person in possession should not be asked to explain how the property he possessed came to his hands. See this proposition in TABSIRATU AL-HUKKAMI FI USULIL AQDHIYATI WA MANAHIJIL AHKAMI VOL. 2 at page 93.
This issue 2 is therefore resolved in favour of the Respondents against the Appellants.
RESOLUTION OF ISSUE NO.3
All the Appellants in this appeal claimed for the sharing of the estate of their late father which included the 4th house in controversy and the 2nd Appellant inclusive. He did not lay claim to the ownership of the said house or any portion thereof as did by the Respondents. In the case of HAJIYA KARIMATU Vs. MALLAM IDI SARAUNIYA LAW REPORT (Pt. 111) pp. 172 – 183 particularly at 129 – 180 paragraphs 74 – 82 it was held inter alia; “that a Court of law is not a charitable organisation, it can only grant what has been asked for where there is evidence to support it.”
Furthermore, the law is settled that this Court will not disturb concurrent findings of facts by two Courts below unless same is shown to be perverse. In the instant case not even the Appellants denied the fact that the Respondents have been in possession of the 4th house for more than 30 years undisturbed before the death of their father. See the case of KYARMI Vs. MUNGADI (Supra).
Flowing from the above, I found no perversity in the decision of the trial Court affirmed by the Court below and therefore resolved issue 3 in favour of the Respondents against the Appellants.
Having resolved all the three issues formulated by the Appellants against them, this appeal fails and is hereby dismissed for lack of merit.
Parties to bear their costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the lead judgment of my learned brother Abdullahi JCA, just delivered. I agree with his reasoning and the conclusion reached.
It is important to understand that in the peculiar circumstances of this case, the respondents were not the plaintiffs required to prove their claim. They were the defendants in possession of the 4th house in controversy and anyone, including the plaintiffs, alleging that the said 4th house is part of inheritable property, has the duty to prove this, as he is the one asserting. In Islamic Law, the defendant (the respondents herein) who are in possession, cannot be asked to explain how they came by the property. Likewise, they cannot be asked to subscribe to any oath. So the respondents were not under any duty, nor was the onus on them, to prove ownership of the 4th house in issue. Not only is this good law, but it is good sense. For anybody can just lay claim to any property in possession of another, and say it is inherited property. The onus would be on him to prove it is inherited property. It is not for the defendant to prove that it is not.
I too find no merit in this appeal and I dismiss it
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Ridwan Maiwada Abdullahi, JCA and I entirely agree with him, that this appeal is devoid of any semblance of merit. Accordingly, I also dismiss the appeal. Additionally, I endorse the order made with regard to costs in the said lead judgment.
Appearances

M. M. Yahuza, Esq-.For Appellants

AND

A. H. Bello, Esq.-For Respondents

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