In The Court of Appeal of Nigeria
On Wednesday, the 10th day of May, 2017
Before Their Lordships
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
1. LAWAN ABUBAKAR
2. LAMBA ALI –Appellants
BULAMA BASHIR –Respondent
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of Borno State High Court in its appellate jurisdiction delivered by Hon. Justices I. S. Bdliya, the Presiding Judge, (as he then was) and M. Mustapha, Assisting Judge on April 29th 2011 wherein the appeal by the Respondent herein (the Plaintiff at the trial Court and Appellant at the Court below) was allowed and the judgment of the Upper Sharia Court which affirmed the judgment of the trial Court, was set aside.
The facts as contained in the printed Record before this Court are briefly as follows:
The Respondent, at the Kala Balge Sharia Court, claimed ownership of some farmlands called “Ngabar” by inheritance from his father. The land in dispute according to him was “from the North boundary to people of Fandaiski farmland that they bought, it eastern side boundary to Fandaski its Western side boundary to Takama close to their buildings its southern side boundaryÂ to defendant land”. See page 6 of the printed Record before this Court. The Appellants herein (the Defendants at the trial Court and Respondents at the Court below) on the other hand, claimed ownership through their great grandfather. At the hearing before the trial Court, five (5) witnesses gave evidence for the Respondent whilst the 1ST Appellant tendered a document and testified to long and unchallenged occupation of the land in dispute. The trial Court entered judgment for the Appellants on May 7th 2011. Being aggrieved with the Judgment, the Respondent appealed to the Upper Sharia Court, Ngala, which affirmed the judgment of the trial Court. The Respondent further proceeded to the High Court of the State in its appellate jurisdiction. The Court below allowed the Respondent’s appeal and set aside the judgment of the Upper Sharia Court. Being dissatisfied with the said Judgment, the Appellants have come to this Court on appeal against the same.
The Appellants’ Notice of Appeal is dated May 16th 2011, consisting of three (3) grounds of appeal. Briefs of argument were exchanged and filed by both sides, the Appellants’ dated April 30th 2013 was filed on May 16th 2013 and the Respondent’s undated, was filed on October 21st 2013. It is however pertinent to state that, in spite of due notice of the hearing of the appeal to both sides on February 2nd 2017 through their learned Counsel, A. A. Sani Esq. for the Appellants and Sami Tambo Esq. for the Respondent, both parties were absent and there was no appearance for them. Consequently, by virtue of Order 19 9 (a) of the Court of Appeal Rules of 2016, their respective briefs were deemed argued and judgment was consequently reserved therein.
The Appellants seek the following reliefs:
1. An order setting aside the judgment of the lower Court.
2. An order confirming title of the land to the appellants or an order for a retrial before a different panel of judges of the High Court of Justice Maiduguri.
ISSUES SUBMITTED BY BOTH SIDES:
a. Whether the respondent has proved his title over the land in disputes (sic)?
b. Whether the judges of the lower Court have evaluated the evidence on the printed record and ascribe the necessary probative value?
c. Whether the appellants have established the principle of “Hauzi” to warrant judgment in their favour?
The Respondent for his part adopted the Issues submitted by the Appellants. This Court shall in the just and fair determination of this appeal, adopt the Issues as submitted by the Appellants.
Mr. A. A.Sani, learned Counsel for the Appellants, in arguing the position of the Appellant submitted that, none of the witnesses of the Respondent testified in line with his assertion at the Court below as he failed to describe and identify the land to which he laid claim. Therefore, the Court below was right in dismissing his claim and cited in support, the case of OGEDENGBE V. BALOGUN (2007) 3 SCNJ 5227. Further, that, there must be evidence of the person who founded the land which the Respondent did not state as he failed to trace the root of title to his grandfather but, merely claimed to have inherited from his father. In support, he cited the case of GODFREY ANUKAM V. FELIX ANUKAM (2008) 2 SCNJ 52. He submitted that, proof in Islamic law is based on one of any of the following conditions:
a. Two unimpeachable male witnesses or
b. One male and two unimpeachable female witnesses or
c. One male or two unimpeachable female witnesses with the claimant’s oath.
And cited in support the cases of HADA V. MALUMFASHI (1993) 7 NWLR (PT. 303) 1 and NASI V. HARUNA (2006) 3 SLR (PT.11) P. 154. The learned Counsel submitted that, the Court below did not
evaluate and/or ascribe the necessary probative value to these testimonies before conferring title of the land in dispute on the Respondent. He contended that, the trial Court failed to appraise and evaluate the evidence adduced and the Court below wrongly affirmed its decision. Therefore, he urged this Court to re-evaluate the facts and ascribe probative value if necessary. In support, he cited the cases of OKWEJIMINOR V. GBAKEJI (2008) 1 SCNJ P. 481 and DRAGETANOS CONSTRUCTION NIG. LTD. V. FAB MADIS VENTURES LTD. (2012) ALL FWLR (PT. 516) P. 441. He asserted that, the Islamic principle of “Hauzi” or long, unchallenged possession of land over a period of 10 years or 40 years where there is no blood relationship is held to constitute title to that land and cited the cases of UMARU V. BAKOSHI (2006) 3 SLR PT. 1 P. 80 and KABARA V. KABARA (2006) SLR (PT. 1) P. 115. The Appellants. Counsel submitted that, the land in dispute was in contention between the Respondent and the Appellants’ father over 46 years ago and that the Respondent did not deny the length of time for which the Appellants had been in possession of the land. Therefore, the Appellants had made out a case of “Hauzi” being in possession since 1962 when their father got judgment against the Respondent, he added. He concluded and urged that, the Judgment of the Court below be set aside and an order for a retrial before a different Judge be made.
SUBMISSION BY THE RESPONDENT
The learned Counsel for the Respondent, Mr. Tami Sambo Esq. submitted that, since the Respondent presented five witnesses who were not impeached against the Appellants who presented none, there was therefore nothing on the imaginary scale in favour of the Appellants. Consequently, the Respondent had proved his case. Further, that, the Court below properly evaluated the evidence of the parties as the findings of the Upper Sharia Court were perverse. He argued that, the document which the Appellants tendered was admitted by a wrong procedure and cannot support their Hauzi since it was not marked as required by the Area Courts Civil Procedure Rules Order 13 Rule 6 of 1971. In consequence, he urged this Court to dismiss the appeal of the Appellants with costs.
RESOLUTION BY THE COURT
ISSUE No. 1
Whether the respondent has proved his title over the land in disputes (sic).
The Court below in its evaluation of the evidence before it found as follows:
“The evidence of the five (5) witnesses for the appellant have (sic) not been discredited by cross-examination. It was the judge who stated that their testimonies were not credible to support the case of the plaintiff without giving reasons therefore.
The respondent did not contradict or discredit the evidence of the five (5) witnesses called by the appellant. There was no basis for the trial Court to enter judgment for the respondent tin (sic) view of five (5) witnesses called by the appellant. In Islamic law evidence of at least 2 unimpeachable male witnesses can prove a case. The appellant had therefore satisfied that requirement, notwithstanding the reliance of the Court on a document that was not tendered in evidence and marked as an exhibit. The issue is hereby resolved in favour of the appellant.”
See page 45 of the Record.
The Court, in my respectful view and humbly, is not correct in its finding that the Respondent proved its case according to the Islamic law.
On discharge of burden of proof under Islamic law, the general principle in civil matters with regard to both movable and immovable properties is that, the proof is taken as complete and the burden discharged in the Claimant’s case upon the following:
a. Evidence of two unimpeachable male witnesses;
b. Evidence of one unimpeachable male witness and two or more unimpeachable female witnesses; or
c. Evidence of one male or two female or more witnesses with Claimant’s oath in either case.
See the cases of ALHJI USMAN HADA V. ALHJI ABDU MALUMFASHI supra and BABA V. ARUWA (1986) 5 NWLR (PT. 44) 774.
As correctly stated by the Court, the “evidence of at least 2 unimpeachable male witnesses can prove a case”. However, as found from the Record, the evidence of all the Respondent’s witnesses did not agree even with his. It is pertinent to state at this juncture that an appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned Court below. It is ordinarily not the function of an appellate Court to disturb the findings of the trial Court. An appellate Court will only interfere where the findings of the Court below are unsound. See the
cases of KODILINYE V. MBANEFO ODU (1935) 2 WACA 365, FATOYINBO & ORS V. WILLIAMS ALIAS SANNIÂ & ORS (1956) 1 FSC 87, OMOREGIE V. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41, BALOGUN V. AKANJI (1988) 1 NWLR 301 SC and ANYANWU V. MBARA (1992) 5 NWLR 386.
At the locus in quo visited by the Kala-Balge Sharia Court, where the land was situate, the Respondent pointed to his land and described same thus:
“…….from the North boundary to people of Fandaiski farmland that they bought, it eastern side boundary to Fandaski its western side boundary to Takama close to their buildings its southern side boundary to defendant land lawan Abubakar and Lamba Ali the land (Jigawa) these are the Area that I sue them.”
The PW1 did not describe the land all he stated was, “I heard, what I know this Ngabbar is belong to Bulama Bashir. That is all what I know.”
The PW2 said the following concerning his knowledge of the land in issue,
“The issue that Bulama Bashir has a Ngabbar here, but I don’t (sic) it exact boundary. Its eastern side is Tikama of lamba Ali because I was presence when the district head went and show them the Area.”
The PW3 on his part stated thus:
“….I know Tikama are two one for Bulama baghir (sic) and the other for Lamba Ali there are eastern and western side the one for Bulama Bashir is at the eastern side to that of Lamba Ali that is all what I know.”
The PW4, stated as follows:
“Tikama by its eastern side belongs to Bulama Bashir (sic) That is all what I know.”
The evidence of the last witness for the Respondent, PW5, in my considered view, could not undo what had been done by the testimonies of the other witnesses. He stated thus:
“what I know is that the Ngabbar that belongs to Bulama Bashir is between Tikama and Fandiski, Tikama is at the western side and Fandiski is at the eastern side, that is all what I know.”
See pages 6-9 of the Record.
From the foregoing, it is clear as crystal that there were contradictions in the evidence of the Respondent and his witnesses. The Respondent failed along with his witnesses to place satisfactory evidence of the boundaries of the land he was claiming properly before the Court. No wonder the trial Court said,
“…..The plaintiff witnesses cannot be regarded.” See page 10 of the Record.
In the light of the foregoing, the Court below, in my respectful view therefore, wrongly concluded that the Respondent satisfied the requirement that “evidence of at least 2 unimpeachable male witnesses can prove a case” when it stated as follows:
Regarding the said document which was referred to in the above quoted portion of the Judgment of the Court below and exhibited by the 1st Appellant at the trial Court, Kala-Balge Sharia Court, the Court below held as follows in respect thereof:
“…… The defendant/respondent did not call witness but tendered a document to show that there was a case between his father and the appellant over same land in 1962. The trial Court relied on this document while rejecting the testimonies of the appellant’s witness as being unreliable. It is to be noted that the document relied upon by the trial Court was not formally admitted in evidence as marked accordingly. We wish to point out here that Sharia Courts are bound by the provisions of Order 11 pt. 11 Rule 4 of Area Sharia Courts (Civil Procedure) Rules, 1971. Documents tendered must be marked according (sic). Where a document is not formally admitted and marked as an exhibit, the Court cannot rely on same in resolving the dispute before it.”See page 45 of the Record.
It is important to note that the said Area Court Civil Procedure Rules provide for the procedure for tendering and marking documents admitted as Exhibits. Order 13 Rule 6 (1) of the said Rules provides as follows on the issue of Exhibits:
Order 13 Rule 6 (1)
When a document or thing is exhibited to the Court and admitted in evidence, the Court shall allot to it a distinctive letter or number and shall record the same in the record book; and the clerk shall mark it with the letter or number allotted and the title and number of the case.
One’s position with regard to the way the document was handled at the trial Court and the question whether or not it should have been relied upon with respect, however differs from that taken by the Court below. The failure to mark the said document was that of the trial Court and not that of the party, 1st Appellant who exhibited it. Further, it does not appear from the provisions of the said Area Court Civil Procedure Rules that, the trial Court was forbidden to rely on a document admitted in evidence by it which it failed to mark. In my humble view, the Appellant herein ought
not to be made to suffer for the mistake, as it would seem, of the trial Court, more so as, there is no provision prohibiting the use of such document by the Court.
In view of the foregoing, Issue 1 is hereby resolved in favour of the Appellants.
ISSUE NO. 2
Whether the judges of the lower Court have evaluated the evidence on the printed record and ascribe the necessary probative value?
Having gone through the gamut of the Judgment of the Court, one is able to answer in the affirmative that the Court below indeed evaluated the evidence on the printed Record, but one is unable to agree with the reasoning and conclusions arrived at. The position of this Court as expressed in respect of the findings and conclusion of the Court below on Issue no. 1 is adopted herein in the resolution of this Issue. Therefore, the finding of this Court is that correct probative value was not ascribed to the evidence evaluated. See pages 41-48 of the Record.
As already stated under issue no. 1, the finding of the Court that the Respondent established his case was wrong according to the general principle of Islamic law on civil matters on both movable and immovable properties with respect to two unimpeachable male witnesses. See pages 44-45 of the Record.
It equally found wrongly that, the principle of res judicata did not apply in the Respondent’s case as it stated thus in that regard:
“The trial Court was wrong in law when it held that res judicata applied to defeat the case before it. The lower Court was also in error when it affirmed the decision of the trial Court. We do not agree with Sani Esq. that the principles of res judicata are not applicable in Islamic law. The term res judicata might not have been used, but the purport of the principles of law are applicable in Islamic law.”
See page 46 of the Record.
The Court below found that the principle of hauzi did not apply to the Respondent’s case and said as follows in that regard:
“We have had (sic) perused the record of proceedings of the trial Court on page 5 the respondent stated that 45 years ago there was a case (sic) the appellant or (sic) his father. That his father was successful in that case. We are of the view that what transpired on page 5 of the trial Court’s proceedings was statement of the respondent who was a party to the case. Under Islamic law parties are not competent witnesses in their case. The trial Court ought not to have ascribed value of (sic) what the respondent said about the 1952 case. It is not admissible in law.
We agree with Hala Esq. that there was no evidence to support the application of the doctrine of hauzi by the trial Court. The lower Court was in error in affirming the decision of the trial Court.”
See pages 47-48 of the Record.
The principle of Islamic law on the competence of a party to testify in his own case was correctly stated by the Court below. It is that parties are not competent witnesses in Court in their respective cases. Their statements are not regarded as evidence as they are seen as statement of claim and statement of defence before the Court. See the cases of ALHJ. HADA V. ALHJ. MALUMFASHI supra, MOFOLAKU V. ALAMU (1990) NLR P. 50 and MALLAM NASI & ORS V. ZAIDA HARUNA (2002) 2 NWLR 241. However, with regard to the said issue, in my considered view and humbly, the question to be asked is whether indeed it could be said that what the 1st Appellant did in response to the question by the Court if he had witnesses could be said to amount to testifying in his own case? What transpired at the trial Court during the proceedings is as stated hereunder:
Court to 1st defendant Lawan Abubakar do you have a witness?
Answer – — yes I have a documentary evidence that the Bashir and my father have case over the land about 46 years ago and it was my father that won the case these are the Court document.”
See page 9 of the Record.
In my humble view, the above scenario could not automatically translate to giving evidence or testifying as a witness for himself by the 1st Appellant. In answer to the Court’s question, he exhibited the said document, a judgment of the Native Court Bama in relation to the land in dispute which was found as such by the trial Court in its judgment on page 10 of the Record. The finding of the Court below to the effect that the 1st Appellant was not a competent witness did not arise and was wrong as well as its position that the principle of hauzi did not apply in this case in my respectful view.
The principle of hauzi in Islamic law is where a person has been in undisturbed possession of a landed property for a period of
ten (10) years or more and the true owner stands by and does nothing to claim his property, the person in possession acquires title by prescription. See the case of ALHJ. HADA V. ALHJ. MALUMFASHI supra. There are however, exceptions to this principle as laid out by the apex Court in the said case.
It is pertinent at this point to note that the attitude of the Courts as instructively emphasized and reiterated by the apex Court is that technical rules of procedure should not fetter substantial justice particularly with the proceedings at the Customary, Native and Area Courts. That once the appellate Court concludes that, from the totality of the procedure adopted substantial justice was done, then, the Court should uphold the proceedings.
See the cases of ALAYE V. LOLOJUDO (1988) NWLR (PT. 81) 129; ORUGBO V. UNA (2002) 9-10 SC 61 and IKPANG V. EDOHO (1978) 6-7 SC 155.
From the Record on page 10, the trial Court found the document presented to it by the 1st Appellant to be a writ of possession from the Bama Native Court dated 16/11/1962 by which the Bama Native Court confirmed some parcels of land, farmland including the disputed land to one Bulama Bishara, 1st Appellant’s father. It therefore relied on it in proof of the long possession by the Appellants and hauzi in their favour as opposed to the position held by the Court below. See page 48 of the Record. In my view and humbly, that was sufficiently supportive of the principle of hauzi in favour of the Appellants. In the result, this issue is resolved in favour of the Appellants.
ISSUE NO. 3
Whether the appellants have established the principle of “Hauzi” to warrant judgment in their favour?
The position of this Court on Issues 1 and 2 with regard to the document (the writ of possession) exhibited by the 1st Appellant which was relied upon by the trial Court in relation to the principle of hauzi is hereby adopted in the determination of this Issue. See pages 9-10 of the Record. From the position of this Court on Issues 1, and 2, this Issue is also resolved in favour of the Appellants.
???In the result, this appeal succeeds and is hereby accordingly allowed. The Judgment of Borno State High Court in its appellate jurisdiction in Suit No. BOHC/CVA/NGL/005A/10, delivered on April 29th 2011 by Hon. Justices l. S. Bdliya and M. Mustapha is hereby set aside.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading in draft, the judgment just delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA.
I agree with his reasoning and the conclusions arrived at in allowing the appeal. I too allow the appeal for the reasons proffered therein. I also set aside the judgment of Borno State High Court delivered on April, 2011 by Justices I.S. Bdliya and M. Mustapha in suit No. BOH/CVA/NLG/005A/10.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached therein.
This case arose from a land dispute. The Respondent commenced the action in the Kala Balge Sharia Court claiming ownership of some farmlands (Ngabbar) and he said that his land was bounded on the north and on the east by the farmland of the people of Fandiski, on the west by the people of Takama and on the south by the land of the Appellants. The Appellants denied the case of the Respondent and stated that the land claimed by the Respondent fell inside their farmlands which was bounded on the north by Tatakuta, on the south by Ambulme, on the east by Fandiski and on the West by Ngaiwa.
The matter was tried by the Sharia Court and the Respondent called five witnesses while the Appellants called no witness and they relied on the doctrine of Hauzi and informed the Court that they and their parents had been possession of the land for many years without hindrance and they presented to the Court evidence of a judgment entered in favour of their father in 1962 in a case between the Respondent and their father over the ownership of the farmland. The Sharia Court visited the locus in quo in the course of trial and it, at the conclusion of trial, dismissed the case of the Respondents and affirmed the ownership of the land by the Appellants. The Sharia Court noted in the judgment that it confirmed during the visit to the locus in quo that the land being claimed by the Respondent was the same one over of which judgment was entered in favour of the father of the
Appellant by the Native Court of Bama in 1962 on the basis of long possession and Hauzi and that as such the evidence of the Respondent’s witness cannot be regarded.
The Respondent appealed to the Upper Sharia Court, Ngala, and the Court affirmed the judgment of the Sharia Court. The Upper Sharia Court found in the judgment that the five witnesses called by the Respondent did not know the actual area of the land in dispute and that the Court could not set aside the judgment that had been given in favour of the father of the Appellants by the Native Court of Bama in respect of the land in dispute over forty-eight years ago on the ground of Hauzi, particularly more so as the Respondent did not take any step until now. The Respondent further appealed to the High Court of Borno State (hereinafter called the lower Court), sitting in its appellate jurisdiction. The lower Court allowed the appeal and set aside the judgment of the Sharia Court. This appeal is against the judgment of the lower Court.
The lower Court stated in the judgment thus:
“The law is well-settled now that in order to prove or establish a case in a Court of law under Islamic Law,there must be evidence of:
i. two male unimpeachable witnesses, or
ii. one male and two female unimpeachable witnesses, or
iii. one male or two female unimpeachable witnesses and claimant’s oath of affirmation.
… Before the trial Court, the appellant called five (5) witnesses who testified in support of his claim of title to the land in dispute. The defendant/respondent did not call witness but tendered a document to show that there was a case between his father and the appellant over same land in 1962. The trial Court relied on this document while rejecting the testimonies of the appellant’s witnesses as being unreliable. It is to be noted that the document relied upon by the trial Court was not formally admitted in evidence and marked accordingly. We wish to point out here that Sharia Courts are bound by the provisions of Order 11 pt. II, Rule 4 of the Area Sharia Courts (Civil Procedure) Rules 1971. Documents tendered must be marked accordingly. Where a document is not formally admitted and marked as an exhibit, the Court cannot rely on same in resolving the dispute before it.
The evidence of the five (5) witnesses for the appellant have not been discredited by cross examination. It was the judge who stated that their testimonies were not credible to support the case of the plaintiff without giving reasons there for.
The respondent did not contradict or discredit the evidence of the five (5) witnesses called by the appellant. There was no basis for the trial Court to enter judgment for the respondent in view of five (5) witnesses called by the appellant. In Islamic law evidence of at least 2 unimpeachable male witnesses can prove a case. The appellant had therefore satisfied that requirement notwithstanding the reliance of the Court on a document that was not tendered in evidence and marked as an exhibit.”
The lower Court continued on the issue of Hauzi thus:
“We have perused the record of proceedings of the trial Court. On page 5 the respondent stated that 46 years ago there was a case between the appellant and his father. That his father was successful in that case. We are of the view that what transpired on Page 5 of the trial Court’s proceedings was the statement of the respondent who was a party to the case. Under Islamic law parties are not competent witnesses in their case. The trial Court ought not to have ascribed value of what the respondent said about the 1962 case. It is not admissible in law.
We agree… that there was no evidence to support the application of the doctrine of Hauzi by the trial Court. The lower Court was in error in affirming the decision of the trial Court.”
The lower Court, with respect, displayed a complete lack of understanding of the Process of adjudication under Islamic law and of Islamic law principles. It is correct that under Islamic law, the burden on a claimant to prove his case can be discharged by the claimant calling two unimpeachable male witnesses or one unimpeachable male witness and two unimpeachable female witnesses or one unimpeachable male witness coupled with the oath of the claimant or two unimpeachable female witnesses with the oath of the claimant –Shiwa Vs Bala (1961- 1989) 1 SLRN 292, Akande Vs Atanda (1989) 1 SLRN 299, Baba vs Aruwa (1986) 5 NWLR (Pt 44) 774, Garba vs Dogon Yaro (1991) 1 NWLR (Pt 165) 1,02, Ige vs Dobi (1999) 3 NWLR (Pt 596) 550, Danfagachi vs Ahmadu (2000) 3 NWLR (Pt 647) 56, Hamza vs Yusuf (2006) 10 NWLR (Pt 988) 238, Kur
vs Fannarni (2011) 1 NWLR (Pt 1228) 287, Gezoji Vs Kulere (2012) 4 NWLR (Pt 1291) 458. But, like under common law, the Court will not accord credibility to the evidence of a witness simply because it is not impeached or unchallenged, the Court still has a duty to evaluate the evidence in the light of the entire case to determine if it is reliable and useful. The Court is enjoined to base its decision only on credible and reliable evidence, irrespective of whether the evidence is not impeached or unchallenged – Hunare Vs Nana (1996) 1 NWLR (Pt 425) 381, Falingo Vs Falingo (2007) 9 NWLR (Pt 1039) 285. Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt 441) 810, Enugu State University of Science and Technology Vs Institute of Journalism Management and Education Ltd (2010) 11 NWLR (Pt 1205) 297, Ahmed Vs Central Bank of Nigeria (2013) 11 NWLR (Pt 1365) 352.
Again, under Islamic law, just like common law, in a claim for ownership of land, the locations and boundaries at any special features of the land must be mentioned and proved by the claimant – Mafolaku Vs Alamu (1961-89) 1 SLRN 105, Fakka Vs Mamman (1997) 4 NWLR (Pt 499) 335 and Gezoji Vs Kulere (2012) 4 NWLR (pt 1291) 458. In Abdullahi Vs Bataganawa (1997) 5 NWLR (Pt 506) 650, a case which emanated from the Upper Area Court, the Court of Appeal held that for a transaction relating to the sale of land to be valid under Islamic Law, the landed property subject matter of the sale should be established through identification by describing its features; the names of the neighbors from all sides, dimensions, beacons, etc should be mentioned and that if the transaction relates to a house or farmland. it should be described by its location in the town, boundaries and neighbors. In the instant case, the Respondent stated that the land claimed by him was bounded on the north and on the east by the farmland of the people of Fandiski, on the west by the people of Takama and on the south by the land of the Appellants. It is essential that in a land matter the statement of claim and the oral evidence must speak the same language with respect to the area of land claimed and any discordance among them could be fatal- Salami Vs Oke (1987) 4 NWLR (Pt 63) 1, Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194, Nwokafor Vs Agumadu (2009) 3 NWLR (Pt 1129) 638, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362. In describing identity of the land said to be owned by the Respondent, the first plaintiff witness, before the Sharia Court, stated that it was “this Ngabbar” while the second plaintiff witness stated that he did not know the exact boundary of the land, the third plaintiff witness stated that it was the land on the eastern side of the land of the Appellants, the fourth witness stated that it was land on the eastern side of Tikama and the fifth plaintiff witness testified that it was bounded on the west by Tikama and on the east by Fandiski.
Looking at the testimonies of the witnesses, no two of them gave the same description to the land they said was owned by the Respondent and none of their descriptions tallied with the location of the land claimed as described by the Respondent. Additionally, the records of appeal reveal that the Sharia Court visited the locus of the land in dispute, in the company of the parties, and it found that the parcel of land claimed by the Respondent fell within the portion of land that the Native Court in Bama had adjudged to belong to the father of the Appellants in 1962. The Respondent did not challenge this finding in his appeal to the Upper Sharia Court. The law is that this finding is binding on the parties and on the Upper Sharia Court, the lower Court and on this Court and it cannot be interfered with – Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) 4 NWLR (Pt 1501)1 and Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1529) 32.
Thus, notwithstanding the fact that the testimonies of the five witnesses of the Respondent were not impeached or challenged by the Appellants, it is obvious that were not credible and reliable to support the case of the Respondent. The Sharia Court and the Upper Sharia Court cannot thus be faulted for disregarding the evidence of the witnesses. It was the lower Court that was in error in relying on the evidence of the witnesses.
Again, the lower Court berated the treatment meted by both the Sharia Court and the Upper Sharia Court to the statement made by the Appellants on their ownership of the land in dispute and said that since the Appellants were not competent witnesses in their case, and did not call any evidence,
there was nothing upon which the Sharia Court and the Upper Sharia Court could base the credibility they accorded the case of the Appellants. The records of appeal show that after the testimonies of the plaintiff witnesses, the Sharia Court asked the Appellants for their witnesses and they stated that they predicated their claim on the fact that their father and the Respondent had a case over the land forty-six years ago and that their father won the case. The Sharia Court then asked the Respondent if this was true and the Respondent stated that it was true, but he tried to deflect by saying further that the case was in respect of six farmlands and not in the area of the land in dispute.
It is correct that under Islamic law, unlike in English law, parties are not competent witnesses in their respective cases; hence their statements in Court would not be regarded as evidence and their statements are something akin or similar to the statement of claim or of defence in Court – Mafolaku Vs Alamu (1985) SLRN 105, Hada vs Malumfashi (1993) 7 NWLR (Pt 303) 1, Dauda vs Asabe (1998) 1 NWLR (Pt 532) 102, Jatau vs Mailafiya (1998) 1 NWLR (pt 535) 682, Danja vs Danja (1998) 5 NWLR (Pt 550) 467, KurÂ vs Fannami (2011) 1 NWLR (pt 1228) 287. Where the statement made by a party is, however, admitted by the other party, the party making the statement is entitled to judgment under Islamic law without the need to call a witness. In other words, under Islamic law, an admission is better than calling witnesses and this is epitomized in the maxim Al-Igrar awls ninal shuhud”, meaning “an admission is more preferable than the testimony of witnesses Maiwa Vs Abdu (1986) 1 NWLR (Pt 17) 437, Bulama Vs Bulama(2000) 6 NWLR (Pt 659) 131, Hamza vs Yusuf (2006) 10 NWLR (Pt 988) 238, Kur Vs Fannami (2011) 1 NWLR (Pt 1228) 287 .
In the instant case, the Respondent having admitted that the statement of the Appellants that there was indeed a Court case between him and the father of the Appellants over a land dispute over forty-six years ago and which was decided in favour of the father of the Appellants, there was no need for the Appellants to call evidence in proof of the statement. What was left was whether the judgment entered in favour of the Appellant’s father was in respect of the land in dispute and this was resolved by the Sharia Court when it visited the locus of the land in the company of the parties. As stated above, the finding of the Sharia Court on this issue was not challenged by Respondent.
The lower Court made a lot of hue and cry out of the reliance placed by the Sharia Court and the Upper Sharia Court on the judgment of the Native Court, Bama of 1962 referred to by the Appellants. The lower Court treated the presentation of the judgment or documents in proof thereof as amounting to the Appellants giving evidence and it berated the Sharia Court for accepting the document of the judgment as an exhibit without following laid down procedure for treating exhibits. The lower Court obviously forgot that the Sharia Court, like all other Courts of law, is obligated to take judicial notice of all laws, case law authorities and legislations touching on disputes submitted before it for adjudication –Ado Ibrahim & Co Ltd Vs Bendel Cement Company Ltd (2007) 15 NWLR (Pt 1059) 539, Lagos State Bulk Purchasing Corporation Vs Purification Techniques (Nig) Ltd (2013) 7 NWLR (Pt 1352) 82. And that it is obliged to apply such laws to the dispute without calling parties to address it thereon – Victino Fixed Odds Ltd Vs Ojo (2010) 8 NWLR (Pt 1197) 486.
Thus, whenever a case law authority is presented by a party before a Court as supporting its case, it does not necessarily amounting to giving evidence and neither is it necessarily for the purpose of being admitted as an exhibit. It is for the purpose of calling the attention of the Court to the existence of the case law authority. The Court can thus make use of the case law authority without admitting as an exhibit. The reliance placed by the Sharia Court and the Upper Sharia Court on the judgment of the Native Court, Bama of 1962 referred to by the Appellants cannot thus be faulted on the technical grounds relied upon by the lower Court.
The concept of ownership by long possession and enjoyment of land relied upon by the Appellants in their claim to the land in dispute is recognized under Islamic Law. It is called Hauzi – prescription. This doctrine postulates that where a person has been in peaceful enjoyment or possession of land without a challenge for ten years he thereby acquires a title by Hauzi (Prescription) against any person who claims to be true or original
owner of such land during that period. In other words, where a party had been dealing with land in all manners as to show that he is the absolute owner for over a period of at least ten years, he will be deemed to be the owner of the land and the burden of proving that he is not the owner is on the other party. This was explained by Adamu, JCA in Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472 at 481 C-E thus:
“In Ihkamul-Ahkam … Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the Possessor. In the instant case, it is on record that the respondents had been in physical and undisturbed possession of the land in dispute for a period between 35-45 years prior to the appellant’s action. Even if we accept the period of the respondents’ long possession as 18 years as admitted by the appellant, still the rule and principles of Hauzi are applicable to the case in accordance with the Maliki system of Sharia which fixed it at 10 years. I therefore hold that the principle of Hauzi (or prescription) based on long possession of the respondents on the piece of land in dispute has applied to this case in their favour and according to the above rule of Sharia, the trial and the lower Courts were right in dismissing the appellant’s claim.”
Where the relevant period of prescription has elapsed and the original owner brings an action to recover property, if it is shown that the defendant had been dealing with the property in all manners throughout the prescription period as an absolute owner, and additionally that the claimant was present and passive throughout the said period and has not shown any valid reason that prevented him from acting throughout such period, the Court will not entertain the claim of the claimant – Babayo Vs Diddi (1995) 3 NWLR (Pt 383) 376, Hunare Vs Nana (1996) 1 NWLR (pt 425) 381, Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472, Danfagachi Vs Ahmadu (2000) 3 NWLR (Pt 647) 56. With the unchallenged finding of the Sharia Court that the land in dispute was the same as the one adjudged by the Native Court, Bama as belonging to the father of the Appellants in 1962, and in the absence of any evidence from the Respondent stating the steps he took to challenge the Appellants on the land since 1962, the use of the concept of Hauzi by the Sharia Court and the Upper Sharia Court to affirm the ownership of the land in dispute by the Appellants cannot be faulted.
It is obvious that in dealing with the judgments of the Sharia Court and of the Upper Sharia Court, the lower Court did not follow the admonition given by the Supreme Court that in interpreting the judgments of Sharia Courts, Native Courts, Area Courts, etc, it is the substance and not the form that should be looked at and great latitude should be given to and broad interpretation placed upon cases decided by such Courts. Their proceedings have to be carefully scrutinized to ascertain the subject matter of the case as well as the real issues therein raised –Ajagunjeun Vs Osho (1977) 5 SC 89, Ikpang Vs Edoho (1978) 6-7 SC 221. Osu Vs Igiri (1988) 1 NWLR (Pt 69) 221, Nwosu Vs Udeaja (1990) 1 NWLR (Pt 125) 188, Kamalu Vs Umunna (1997) 5 NWLR (Pt 505) 321. In Agbasi Vs Obi (1998) 2 NWLR (Pt 536) 1 Belgore, JSC (as he then was) made the point at page 14 thus:
“The native Courts are Courts of common sense and simplicity, they are never burdened by strict adherence to procedure. They are Courts for quick and cheap manner of dispensation of justice. Most of the time, their decisions reflect the very justice and truth of the cases. It is because these Courts are not tied to technicality of procedure that the appellate Court must look at the totality of the proceedings to find who were the parties before them, what were the issues before them and what they have decided.”
Also commenting on the point, Onu, JSC stated at page 18:
“Indeed, … judgments of Native Courts should be treated differently from those of a High Court. When dealing with such judgments, an appellate Court is entitled to go beyond what appears on the face of the claim and ascertain from the entire evidence before the Native Court (Customary Court or Area Court) what really the nature of the dispute is involved. In other words, that great latitude must be given to, and a broad interpretation placed upon, Native Court cases and that the whole proceedings, the evidence of the parties and the judgment, must be looked at in order to decide what a Native Court case was about.”
I find that the lower Court was in clear error when it set aside the judgment of the Sharia Court and the affirming decision of the Upper Sharia Court. I find merit in the appeal and I too allow same. I hereby set aside the judgment of the High Court of Borno State, sitting in its appellate jurisdiction, delivered in Suit No BOHC/CVA/NGL/005A/2010 by Honorable Justices I. S. Bdliya (as he then was) and M. Mustapha (as he then was) on the 29th of April, 2011. I abide the consequential orders in the lead judgment
Mr. A. A. Sani –For Appellant
Tami Sambo, Esq. –For Respondent