Dajo Bello V. Ali Usman (1998)

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SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A. 

This is an appeal against the judgment of the Sharia Court of Appeal of Taraba State of Nigeria sitting at Jalingo. The respondent herein Ali Usman was the plaintiff before the Civil Area Court Zing wherein he sued the defendant Dajo Bello, claiming twenty five (25) cows from him as a reward for rearing 105 cows belonging to the appellant. According to the respondent, the appellant entrusted some cows to him for rearing. He then called the son of the appellant who testified as plaintiff witness one. His evidence was to the effect that the appellant sent him to the respondent to collect certain cows. The respondent, according to the PW1, handed over those cows still with him to the PW1. who brought them to the appellant.

The appellant, after denying the claim of the respondent, agreed that he engaged the respondent for rearing his cows some ten years ago. And that he paid compensation to the respondent covering the period of five years at the rate of one cow per five months. He agreed that he has not paid such compensation for the remaining five years.

At the end of the trial the learned Area Court Judge held that since there was no sufficient evidence from both parties oath shall be offered to any party to supplement the evidence already given. He then offered oath first to the appellant who was the defendant at the trial court of which he declined. The said oath was shifted to the respondent, who was then the plaintiff, who also declined to subscribe

to the oath. That being the case, the trial court held, it was proved that the respondent has reared the said cattle for the appellant for ten years and that the appellant paid to the respondent only three cows instead of twenty five (25) cows as mutually agreed by the parties. He then ordered that the appellant should give twenty two (22) cows to the respondent as the balance of compensation within two weeks from 12/3/93.

Aggrieved by the above decision the appellant lodged an appeal in the Upper Area Court Jalingo and filed five ground as follows:.

(a) That the trial court did not properly investigate this matter.

(b) The trial court did nut allow the appellant to call his witnesses;

(c) That the oath offered to the respondent is not heard of and therefore he did nut understand same.

That the trial court collected the sum of three thousand naira (N3.000.00) from him as alleged filing fees: and

The Upper Area Court should properly determine the issues involved and order a retrial.

The Upper Area Court reviewed the record of the trial court and held that the appeal succeeds and allowed same. It was of the view that the wrong procedure of Islamic Law was employed by the trial court and that there was no basis for asking the appellant then to take oath. He then allowed the defendant to swear in rebuttal and when this oath was subscribed to the claim of the respondent was dismissed.

Being dissatisfied with the above decision the respondent herein successful appealed to the Shari a Court of Appeal, hereinafter called court below. The decision of the Upper Area Court was set aside and that of the trial court restored with certain variations namely the appellant was ordered to pay the respondent as a reward of rearing his cattle, twenty heads of cow instead of twenty three as ordered by the Upper Area Court.

The appellant, who was the defendant at the trial court, in turn, appealed to this court and filed a notice of appeal containing one single ground on jurisdiction thus:-