Babayo Baka Seyo V. Hussaini Baba Tumfure (2006)

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ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of Sharia Court of Appeal Gombe State in appeal No. GMSJ/SCA/CYA/113/2002 delivered on 3rd December, 2002 – coram: Hon. Kadi Tukur Abdulkadir, Hon Kadi Ahmadu Sa’id Dukku and Hon Kadi Adamu Mohammed Abubakar.

At Bogo Area Court Gombe, Baka Seyo instituted an action against Hussaini Baba claiming his farmland from him. In his statement of claim, the plaintiff said he lend the respondent’s father Mallam Saba his farmland on his return to Tumfure to be keeping his cattle and after six years he requested it back but the respondent’s father implored him to be patient since the land is given to him on loan and the loan is a loan that is known. That even if he dies the land will be returned to him. He allowed him to continue keeping the land. Later when he heard he fell ill, he requested for the land again but could not get it back up to when the respondent’s father died. Therefore he instituted an action against the son (the respondent) to enable him retrieve his land.

In his response, the respondent disputed the claim saying the farmland belong to his late father. That since their return to Tumfure 35 years ago, they were keeping their cattle there and that they came to Tumfure when he was only two years old. He grew up to maturity and up to getting married in that farmland that the plaintiff had at no time requested for its return until after his father’s death.

In the course of the trial before the trial Area Court, the plaintiff presented five witnesses to proof his claim while the respondent presented three witnesses and both witnesses of the parties appeared before the court and gave their testimonies. After investigation, the trial Area Court awarded the ownership of the farmland to the plaintiff. The respondent being dissatisfied with the judgment appealed to the Upper Area Court 1 Gombe which reviewed the case again and dismissed the appeal of the respondent and affirmed the judgment of the trial Area Court. The respondent still not satisfied, appealed to the Gombe State Sharia Court of Appeal which set aside the judgments of the trial Area Court and the Upper Area Court and entered judgment in favour of the respondent on the ground that the respondent’s father by his long stay on the land has acquired title to it by prescription (Hauzi).

It is against this judgment of the lower court that the appellant has now appealed to this court upon three grounds of appeal contained in his notice of appeal dated 9th December, 2002.

We took this appeal on the 11th May 2006. The appellant was represented by his counsel Mr. C. D. Kadala while the respondent even though served with hearing notice of the appeal was not physically present in court nor was he represented by counsel.

Counsel to the appellant adopted his brief of argument dated 14th October, 2004 and deemed filed on 20th October, 2004 and urged us to allow the appeal and set aside the judgment of the lower court.

The respondent was not in court to argue his appeal and did not file any brief of argument accordingly the court adopts his submissions at Bogo Area Court, Upper Area Court I Gombe and the Sharia Court of Appeal Gombe.

From the three grounds of appeal as contained in the appellant’s notice of appeal dated 9th December, 2002, learned counsel to the appellant formulated three issues for determination which are stated thus:

“1. Whether the lower court rightly applied the Islamic principle of Hauzi (prescription) in this case.

2. Whether the principle of fair hearing was not breached when the lower court raised the issue of Hauzi without hearing the parties on it.
3. Whether the decision of the lower court is not altogether unreasonable and unwarranted having regards to the weight of evidence.”

The three issues as formulated by the learned counsel to the appellant are in line with the three grounds of appeal as contained in the notice of appeal filed by the appellant. Accordingly they will be used in the treatment of the appeal.

Issue No.1 is whether the lower court rightly applied the Islamic principle of Hauzi (prescription) in this case. On this issue, learned counsel to the appellant submits that the decision of the lower court was not based on a proper application of the Islamic principle of Hauzi. Counsel referred to the case of Hada v. Malumfashi (1993) 7 SCNJ (Pt.2) 504 at 518; (1993) 7 NWLR (Pt. 303) 1, where Wali, JSC stated the principle thus:

“Whoever is in peaceful possession of a thing (real property) for 10 years, he becomes its owner.”