Sarkin Kudu Mohammad Maidawa V. Sarkin Dawaki Husaini (2000)

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MUNTAKA-COOMASSIE, J.C.A.

The Plaintiff, now, Appellant, Sarkin Kudu Muhammadu Maidawa instituted an action, before the Upper Area Court Bauchi, against Sarkin Dawaki Hussaini, now Respondent, claiming: a house allegedly belonging to (the Appellant’s father Sarkin Kudu Usmanu).

At the end of the hearing and investigation of the matter, the Upper Area Court now, the trial Court, entered judgment in favour of the Appellant. Aggrieved by the decision of the trial Court, the Respondent appealed to the Sharia Court of Appeal Bauchi State hereinafter referred to as Court below.The learned Kadis after thorough review of the records, allowed the appeal and set aside the judgment of the trial Court and awarded the house in dispute to the Respondent.

The Appellant, not being; satisfied with the decision of the court below appealed to this Court and filed an amended Notice of Appeal containing the following two grounds of appeal together with their particulars:

Grounds of Appeal

1. The learned Khadis of the Sharia Court of Appeal Bauchi erred in law when it determined the appeal without jurisdiction, contrary, to the provisions of Section 242(1) and (2) of the 1979 Constitution of the Federal Republic of Nigeria as amended which renders its entire hearing of the appeal and judgment a nullity.

Particulars of Error in Law

(a) The jurisdiction of the Sharia Court of Appeal as shown at Section 242(1) and (2) of the 1979 Constitution as amended only relates to questions of Islamic personal law.

(b) It is the Statement of claim and or complaint before the trial Court that determines the jurisdiction of a court.

(c) At p.3 of the printed record of appeal, the Appellant said inter alia before the Upper Area Court Bauchi thus “I Sarkin Kudu Muhammadu Maidawa is hereby claiming a house belonging to my father which the Respondent is now in possession and I do not know how he, got it …”

2. The learned Khadis, Sharia Court of Appeal Bauchi misdirected themselves in law and fact when they reversed the decision of the Upper Area Court Bauchi without adverting their minds to the issue of loan and or gift raised during the trial as well as weight of evidence.

Particular of Misdirection

i. Under Islamic Law as stated in Kifayatil Dalibi Vol. ii pp. 294 – 295 it is provided that the onus of proof is on he who asserts.

ii. The Appellant brought witnesses that established that the house was loaned out to the respondent but no such corresponding witnesses were brought by the Respondent to establish the fact of gift.

iii. There was no acquiescence on the part of the Appellant for this period or years as he alleged that the house was loaned out to the Respondent.

iv. It is provided in Bhaja Sharh of Tuhufatul Hukkam Vol. 11 pp. 252 that, a person can loose his ownership to a piece of land or house if someone entered it unchallenged by the owner and that he was not sick, not a child, has not travelled out, no relationship of blood or marriage and has not sued without success his interest will lapse after 40 years if these reasons exist.