Mamman Maigari & Ors V. Alhaji Tswashagi Raba Bida (2001)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

Alhaji Tswashagi Raba Bida, the respondent herein, was the plaintiff before the Area Court Agaie. He sued the appellants herein for the recovery of a farmland which was entrusted to one Muhammadu Guzau. In accordance with Islamic law procedure when the respondent’s claims were read to the appellants they denied the claims, they also set up the defence of estoppel per rem judicatam, claiming that the same issues were adjudged to finality between the parties by the Civil Upper Area Court Bida in suit No. UAC/BD/FX/311. The trial court investigated this special defence and rejected it. Thereafter the proceedings commenced under the provisions of Islamic law and procedure. The respondent as the plaintiff was asked to produce his witnesses. The appellants as defendants were represented by counsel who demanded that both the plaintiff and the defendants and their witnesses should all be sworn with the Holy Koran so that this will ease the proceedings and will avoid unnecessary delay. And with the permission of the court I will like the plaintiff to swear with the Holy Koran before proceedings begins.”

The court declined the request for the plaintiff to swear but ordered that “All the witnesses shall swear on the Holy Koran that they are going to speak the truth based on what they know about the case.” It is alleged that all the plaintiff’s /respondent’s witnesses sworn on Holy Koran before they testified. I shall return to this matter anon.

The plaintiff/respondent called five witnesses and defendants/appellants called four witnesses. In his judgment delivered on 15/12/87, the trial Area Court Judge found for the plaintiff /respondent and awarded him the farm in dispute.

The defendants felt unhappy with the judgment and appealed to the Upper Area Court Agaie. After hearing the parties in its judgment, the Upper Area Court held that the mere fact that the plaintiff’s witnesses swore on the Holy Koran was not sufficient evidence on which the trial court should base its decision to award the farm land to the plaintiff. The court allowed the defendant’s appeal and ordered a retrial before Beddegi Area Court. The plaintiff felt dissatisfied with the aforesaid decision of the Upper Area Court and appealed to High Court of Niger State sitting in appellate jurisdiction at Minna. The High Court heard the submissions of the parties and gave its decision against the defendants, the respondents therein, and set aside the decision of the Upper Area Court and restored the decision of the trial court. This is now another appeal filed by the defendants against the decision of the High Court in its appellate jurisdiction. It was with the leave of this court that the defendants were allowed to raise a fresh point of law raised in the additional ground of appeal. In the appeal, only the additional ground of appeal was argued, the other grounds having been abandoned are hereby struck out. Now the ground reads:-

“The Niger State High Court sitting in its appellate capacity erred fundamentally in law, when it adjudicated on the appeal and relied on the proceedings before the Agaie Area Court to sustain the claim of the respondent to the disputed farm land, in the face of fundamental errors in the evidence and proceedings of the said trial court which was set aside by the Upper Area Court”. (Although for different reasons)

PARTICULARS OF ERROR

I. When the proceedings were tried under Islamic Law, which system of law does not approve of witnesses giving their evidence on Oath?.

II. Oath taking is an integral part of judicial administration in Sharia and a witness is not qualified to take Oath before a trial court as he has no locus standi to do so.

III. Islamic law stipulates the circumstances in which Oath can be taken by parties in the resolution of a dispute and Oath taking by witnesses is not one of them.

IV. By allowing the plaintiffs five witnesses to take oath on the Holy Quran before giving their testimony in court, the trial court had unwittingly negatived the evidence of the plaintiff and rendered it useless, such that only retrial can meet the justice of the case”.

One issue for determination is identified, formulated and submitted to this Court for the determination of the appeal and it reads:

“Whether it was proper and indeed legally correct, in a proceeding governed strictly by Islamic law for the testimony of witnesses to be preceeded by Oath on the Holy Quran and if the answer is in the negative, what is the consequence of a proceedings so conducted”.

As can be seen the facts of the case are not really relevant for the determination of the appeal. The argument rests solely on the proprietory of witnesses swearing to tell the truth in action governed by Islamic Law and Procedure at the trial court as shown in the record was raised in this way: –