Abana Bulama & Anor V. Haruna Alh. Bulama (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

At the Guyuk Area Court, holden at Gombi in Adamawa State, the Plaintiff sued the Respondents claiming his two houses consisting of 6 and 3 rooms respectively, which he had earlier on entrusted in the 1st Defendant while he proceeded for medical treatment at Dambowa Local Government. The trial Court heard the claim and gave judgment in favour of the Plaintiff by administering oath on him that the Defendants were to pay him the sum of N11,180 compensation for the two houses.

The Plaintiff became aggrieved with that judgment, and appealed to the Gombi Upper Area Court (UAC). The Upper Area Court reviewed the case and altered the amount of the compensation awarded now to be in the sums of N20,000.00 and N15,000.00 for the two houses respectively. The Plaintiff/Appellant was further dissatisfied and appealed to the Adamawa State Sharia Court of Appeal (lower court). After going through the records of proceedings before it on appeal and additional explanations from the parties, the lower Court reversed the decisions of the trial Court and the Upper Area Courts and returned the two houses to the Plaintiff/Appellant. This time around the Defendant/Respondents became aggrieved and appealed to this court on 3 grounds.

The Appellants engaged the services of a counsel. Mr. Umoh. Learned Counsel sought for this Court’s leave and had it consequent upon which one Mr. Felix B. Kwalla was joined in the appeal as an interested party and amended the original notice and grounds of appeal filed on 7/4/96 by incorporating additional grounds. Learned Counsel subsequently had extension of time within which to file his Appellants brief of argument. By order of this court, appellant’s brief of argument was deemed duly filed and served on the 25/11/98. No brief was filed by the Respondent.

On the hearing date, learned Counsel for the appellants adopted and relied on Appellants’ brief of argument. He urged this Court to allow the appeal and restore the decision of the UAC. The Respondent though undefended adopted and relied on his submissions made at the trial upper and the Sharia Courts of Adamawa State as contained in record of appeal. He urged us to dismiss the appeal and affirm the lower courts decision.

The learned Counsel for the appellants formulated four issues:

“1. Whether it was right and proper for the Sharia Court of Appeal to reverse the concurrent findings of the two lower Courts having regards to the circumstances of te case?.

2. Whether it was right and proper for the Sharia Court of Appeal to hold as it did to wit:

“We hold that it is not proper for both the lower Court (sic) to award monetary compensation to the appellant which he objected to?.”

3. Whether it was right and proper for the Sharia Court of Appeal to make an order directing the return of two houses to the Respondent as well as suggesting that the purchaser could institute an action for any claim for development and any expenses incurred in development of the two houses particularly as the purchaser was not a party throughout the proceedings?.
4. Whether it was proper under Sharia Law (sic) for the Court to place absolute reliance on the oath taken by the Respondent when there was other evidence available to the court which the court failed to further evaluate?.”

In his argument on the first issue, learned counsel submitted that both the trial Court and the Upper Area Court were one regarding the reliefs granted to the parties. That the Court’s evaluation of evidence left them concurring on their findings of facts and that it is trite that an appellate court will not disturb concurrent findings of fact by lower courts once supported by sufficient evidence. He cited several authorities in support. He argued further that it was common ground that parties at the lower Court knew that the property had since been sold to a third party who was not then a party to the proceedings and who expended substantial amount of money on the said property thereby radically changing the entire nature of the said property. He submitted that, the Appellant had left the property over twenty years.

On his issue No. 2 learned Counsel for the appellant submitted that the lower court had no reason to vary the concurrent findings of the trial and the upper Area Courts.

Learned Counsel submitted on issue No. 3 that where a property had been sold to a bonafide purchaser for value without the Notice of any defect, the only remedy to any adverse claimant after some fundamental changes were effected on the property was a claim for compensation.

On the 4th issue, learned Counsel argued that under the Sharia principles, it is the Defendant that sears to an oath and not the Plaintiff when there is no other evidence available and it was therefore wrong for the lower Court to place reliance on the oath taken by the plaintiff without having recourse to the other evidence available at the trial Court.

I think, this ordinarily, is a simple case but unnecessary complicated by the trial Court. Unlike in the common law principles, the trial Court, in Sharia is entitled to sort out things where confusion creeps into the proceedings. He cannot begin to hear the parties unless he is able to distinguish the plaintiff from the Defendant;

‘Arabic wordings…’

Meaning:

“The whole pivot of judgment rests upon the ability to distinguish the plaintiff from the defendant.”

See: AL-MAYYARAH Vol. 1 page 15).

Secondly, it is mandatory on a Judge to understand the nature of the claims(s) before he can pass any judgment thereon. It is stated in AL-MAYYARAH (supra).

‘Arabic wordings…’

Meaning

It is unlawful for a Judge to pass a judgment if the nature of the case is not very clear to him.

Thirdly, it is the duty of a Judge to ask the Plaintiff/Claimant (where there is a counter claim) to establish by evidence his claim or counter claim. It is stated in the MAYYARAH (supra).

‘Arabic wordings…’

Meaning:

The onus of proof rests in all situations on the plaintiff.

Fourthly, where the Plaintiff/Counter-claimant fails to establish his claim through evidence, then the Defendant whether in the case of the main claim or in the counter-claim, has to subscribe to the oath of denial in order to justify his entitlement to the subject-matter in dispute. It is equally stated in the MAYYAARAH (supra).

‘Arabic wordings…’

Meaning:

The Defendant shall swear (to an oath) where the plaintiff fails to establish this claim.

Fifthly, where there is a clear and positive admission by a defendant, then Plaintiff need not call any proof.

‘Arabic wordings…’

Meaning:

Admission is better than calling witnesses.

I found it necessary to go to these (rudiments) elementary requirements of a proceeding before a Court applying Islamic Law principles because there were a lot of confusions in both the trial Court and the upper Area Court that heard this case. This consequently affected the proceedings of the Sharia Court of Appeal (lower court) that determined the case list.

From the facts made available before the trial Court and as contained in the record of appeal, the Respondent as Plaintiff claimed from the 1st Appellant as 2nd Defendant as follows:

“As I invited (sic) to go back home for treatment, I called the 2nd Defendant and gave him custody of the house and the house I bought from Salisu gave to one Abana Wusuje who was then leaving (sic) with the 2nd Defendant. I asked him to stay free and my personal house which I bought from Gambo, I gave to Abana kozara and the rest, I handed to the 2nd Defendant.

I called my daughter Mairama and introduced her to the 2nd Defendant including my bicycle; I entrusted them all to the 2nd Defendant and left home for treatment at Dambowa Local Government. I want to recover all my houses from the 2nd Defendant.”

The 1st Defendant denied the claim entirely and required the Plaintiff to prove his claim. The 2nd Defendant/1st Appellant made the following replies:

“Answer: It is true the Plaintiff bought a land from one Usman mechanic. He was attacked by Robbers and left home for treatment and he handed over the following properties to me:

1. His personal home and Bukar Lawan
2. Bicycle
3. Plot – Gerema ward
4. Bukar House – Gerema ward
5. Bagama House – Mallam Buba ward
6. A plot of land at Dan-Hadeyija ward.

Then Bagama and Bukar Lawan come (sic) and met me, and they told me that the houses belongs (sic) to them and so I should look for him, and I sold the house to one Kilbar through Peter for N1,620.00 4 years ago. And Bagana also come and sell (sic) it for him and I sold the house to Kanuri for N700.00 about 1992. And the 2nd plot and the personal house are intact.”

The statement above, credited to the 2nd Defendant/Appellant were a clear admission of the trust given to him by the Respondent when he was to leave for medical treatment. The trial Court should found in favour of the Plaintiff/Respondent. This should have determined the matter once and for all for the requirement of the law as pointed above in the fifth step to be taken by the trial Court. The confusion arose however, where the trial Court assumed that there was an agreement between the Respondent and one Buakar Lawan. Thus, the Court asked the latter.

“What is the agreement between you and Abana?”

Buka Lawan answered.

Some time 17 years ago, the Defendant and the Plaintiff went and show (sic) me the area. The plaintiff marries (sic) my senor sister so I delegated him to do some building for me on the land. On the first instance I gave the plaintiff hand to hand N400.00. He sold my bull for 6 years but I don’t’ know how much, and continue (sic) with the building. He was able to build 3 rooms and block and roof it with zinc a wall (sic). Then he ask (sic) for kitchen and I gave him N100.00…”

The above claim as it appeared was entirely a new claim by a different party against the Plaintiff/Respondent. It should have been treated separately and not to be joined with the 1st (existing) claim. Again, one Abana Alhaji Isa asserted that, the Respondent was married to his sister. Alhaji Isa required for a plot of land from the Respondent. The Respondent got one for him for N210.00. He showed the plot to him the Respondent built 6 rooms block for Alh. Isa; the latter gave the Respondent N400.00 to pay zinc and roof the house. Respondent was only able to roof 3 rooms out of the six. Respondent fell sick and had to leave for home. He

“handed over the house to the Defendant as a care-taker. I come (sic) to Gombi and sold the house and I left back.”

This also was entirely a new claim against the respondent. It ought to have been treated as a separate claim.

Now the area of confusion which was brought in by the trial Court can be seen from the following proceedings:

“Crt/plaintiff: Based on the evidence was received which raised suspecting (sic) that there is likely (sic) of transaction between you and the plaintiff would you swear to dissolve them? (sic).

Answer: Yes I will swear.

Crt/Defendant. Did you agree (sic) to allow the plaintiff to swear.”

Answer: “No we rather swear.”

It is clear that no evidence was heard by the trial Court. Also the party referred to as ‘plaintiff’ was the original plaintiff in 1st case and not as he ought to have appeared as a Defendant in the latter case. The one referred to as ‘defendant’ should have been the counter-claimant in the latter cases. So, it was in this line of thought that the trial Court went to finalise by making some findings upon which it stated:

“Which the above findings the plaintiff was able to establish that the properties are his and assigned them to 2nd defendant. The burden of proof to the contrary now lies on the 2nd claimant Abana Alhaji Isa and Bukar Lawan to establish the fact that the estate are there (sic). Accordingly, they were given chance to bring proof in which they brought one witness Yayi Mallum (the plaintiff’s wife). The papers tendered and the testimony of the only defence witness does not all proves any liability against this plaintiff.”

The trial Court concluded:

“With this oath and in the absence of any contrary evidence destroying the plaintiff’s claim the plaintiff is declared the legal title (sic) of 2 houses and 3 plots of land situated at Buba Basullube ward and Jaun Gerena ward respectively.”

The trial Judge them added:

“The 3 plots are infact under-developed and not sold to anybody. However, the 2 houses were sold to Kuraja Muhammad for N2,000.00 on 8/3/1992 while the 2nd house was sold to Felix B. Kwala in 1989 for N1,620.00. Both buyers are in custody of the 2 houses and each of them have (sic) developed the houses to there (sic) taste, more rooms were build (sic) and cemented with ceiling and electrified. …. I found that displacing them at this level stage (sic) with their contrary to natural justice (sic) so to be fair to both parties, the plaintiff should recover the proceeds of the 2 houses from the 2nd defendant plus some interest for the period of disposed (sic)…”

Now the original parties before the trial court were:

Abana Bulama – plaintiff

v.

1. Jaure Gerema – 1st defendant
2. Haruna Abubakar -2nd defendant

The claim of the Plaintiff was entirely against the 2nd Defendant. There was no claim against one Mallam Bukar Lawan, and Abana Alhaji Isa who were invited to Court by the 2nd Defendant. There was no counter-claim or fresh suit before the trial Court filed by Kiyari Muhammadu and Felix B. Kwala, who were said to have purchased the Respondent’s two houses. It is therefore a surprise how the trial Court made an order against these two latter persons for compensation when they were not joined as parties to the proceedings. The Upper Area Court too, erroneously made an order which affected these two persons. It is however very clear from the record that the upper area Court Judge observed that 1st Respondent/Defendant was actually in breach of trust because the houses were not entrusted to him to sell but to take care of them while the Appellant was away. The upper area Court Judge went further to apply the common law of equity to govern the appeal before him. He varied the amounts of compensation awarded by the trial Court. He awarded N20,000.00 and N15,000.00 respectively. This is a paradox!

In its judgment, the lower Court held that the oath of denial sworn by the Respondent was proper. The Court reasoned and cited an authority that, a person has no right to sell what he did not own. The learned Khadis further held that, it was wrong for the trial and the Upper Area Courts to make monetary compensation to the Respondent which he objected. They ordered that the two houses were to be returned to the Appellant who, was their original owner. I will agree with the learned Khadis of the lower Court entirely. However, it must be pointed out that the Respondent did not swear as a plaintiff as there was no such need, since the 2nd Defendant/Appellant made clear admission of the plaintiff’s claim. The oath was taken by him as a Defendant to the apparent counter-claim made by Mallam Bukar Lawan and Abana Alh. Isa. However, these two persons as observed earlier, were not parties to the suit. So how could they have shifted the oath taking on the Respondent? The oath was taken to deny claim (if at all) made by the purchasers of the two houses in question. Both the Respondent and the persons who were said to have purchased the Respondent’s houses were total strangers to one another in that suit. Accordingly, it is my view that the oath taken by the respondent had no relevance to the appeal on hand. It had no effect whatsoever on the parties. I entirely agree however that the law is very clear that a person in Islamic Law, has no power, unless where such power is expressly conferred on him, to sell the property, chattels etc. of another. Where he has done so, the sale can be avoided at any time provided the owner of the thing does not ratify the transaction. The Prophet (PBUB) is reported to have warned Halim bn. Hizam that:

“You should not sell anything that does not belong to you”.

Reported by Ibn. Majah and Tirmidhi. Thus, unless there was ratification by the Respondent of the Appellant’s sale the question of compensation could not have arisen – as it has no basis. There is no doubt that, the Respondent is entitled to recover his two houses in addition to other things claimed to have been entrusted to the Appellant and which trust the appellant admitted.

For the above reason, I have no reason to disagree with the decision of the lower Court which I hereby affirm. The appeal lacks merit and is accordingly hereby dismissed. Respondent is entitled to N2,000.00 costs from the Appellant.

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Other Citations: (2000)LCN/0690(CA)