Abdu Dagacin Beli V. Tijjani Umar (2005)

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ABUBAKAR ABDULKADIR JEGA, J.C.A.

The respondent in this appeal was the appellant before the court below, the Kano State High Court of Justice in an appeal against the decision of the trial Upper Area Court Gwarzo in a farmland dispute, in which he was the plaintiff, while the appellant before this Court was the defendant. The respondent who argued his appeal in person at the court below presented his case as follows at pages 1 – 2 of the record of appeal-

“I am urging the court to retrieve my farm for me from the respondent Village Head. The farm belongs to my father and he had allowed me to farm on the land when he was alive. It was about 4 years ago that the farm was seized away from me by the respondent, with the help of the Area Court Judge Zarewa. I was dissatisfied with the Area Court decision and appealed against it at the Sharia Court of Appeal. The farm was awarded to me. The court made order that the respondent should hand over the farm to me, but he refused to comply since about 4 years ago.

An order of Sharia Court was served on the trial Judge to execute, but he too refused. This is why I came to this Court to help me recover my land from the people, who are there now farming on it. I urge the court to recover the land for me and to ask the people to pay me damages.”

As some of the allegations made by the respondent above are quite grave and also contrary to the record of appeal before the court below, that court ordered the Registrar of the Sharia Court of Appeal to produce to it the original record of proceedings in Suits No. SCA/CV/KN/103/98 and SCA/CV/138/98. It was from these additional records of the Sharia Court of Appeal, Kano, that the correct picture of the chequered history of this case was clearly brought out.

The dispute between the parties over the swampy farmland in dispute started at the Zarewa Area Court, where the complaint was made in Suit No. CV/558/96. Judgment in the matter was delivered on 13-4-97 in favour of the respondent in the present appeal as plaintiff. The appellant as the then defendant who was not satisfied with the judgment then appealed to the Gwagwarwa Upper Area Court, which in its judgment delivered on 6-4-98, affirmed the decision of the trial Zarewa Area Court in favour of the respondent. However, on further appeal to the Sharia Court of Appeal, Kano, against the decision of the Gwagwarwa Upper Area Court by the appellant, the Sharia Court of Appeal in its decision delivered on 19-5-99 allowed the appeal, set aside the decisions of both the trial and Upper Area Courts and order the rehearing of the case afresh by the Upper Area Court Gwarzo. Therefore, it is not true as claimed by the respondent in this appeal before the court below, that the Sharia Court of Appeal, Kano, made any order on the appellant to hand over the swampy farmland in dispute to him or that any trial Area Court or Upper Area Court was ever ordered to execute any judgment in favour of the respondent.

From the facts gleaned from the record of this appeal, it is not in doubt that the appeal arose from the decision of the Upper Area Court Gwarzo in the retrial of the case between the parties as ordered by the Sharia Court of Appeal, Kano State. After hearing the parties and the witnesses called by them in support of their respective claims to the swampy farmland in dispute, the Gwarzo Upper Area Court dismissed the claim of the respondent as the plaintiff in its judgment, delivered on 21-9-99. The respondent who was not happy with that decision then appealed against it to the High Court of Justice, Kano State, which after hearing the parties, in its judgment of 19-2-2001, allowed the appeal and ordered the parties to go back to the Upper Area Court for that court to administer oath to the respondent to confirm his claim to the farmland. Aggrieved by that decision, the appellant who was the respondent at the court below, has now appealed to this Court on 5 grounds of appeal against that decision.

Before this appeal came up for hearing on 9-3-2005, only the appellant’s brief of argument was filed. At the hearing of the appeal, the respondent who was not represented by counsel said he could not afford the services of a counsel and therefore was appearing in person. Thus, this court in exercise of its powers under Order 6 Rule 10 of the Court of Appeal Rules, 2002, granted leave to the respondent to be heard in oral argument as no respondent’s brief of argument was filed by him. However, in the brief of argument filed on behalf of the appellant by his learned counsel, 3 issues for determination were formulated from the 5 grounds of appeal filed by the appellant to challenge the decision of the court below. The issues are-

“(i) Whether evidence of PW2, who testified for the respondent before the trial court is admissible and can be acted upon by the lower court.

(ii) Whether the lower court was right in considering the respondent’s claim before the trial court as part of evidence.

(iii) Whether the learned Kano State High Court of Appeal Judges were right in giving judgment for the respondent in a claim of Istihqaq (dispute of right of ownership) in respect of landed property without considering the evidence from the appellant.”

In support of the first issue for determination, learned Counsel to the appellant submitted that the evidence of PW2 which the court below held to be valid for not having been impeached, is not valid and could not in accordance with Islamic Law be relied upon by the lower court as the basis of its judgment in favour of the respondent.

That as the evidence of that witness is only to the effect that he only knew the respondent’s father to be cultivating the farmland, but does not know how the respondent’s father got the farmland, his evidence was not helpful to the respondent. That as the claim of the respondent as stated at the lower court was that his father told him that he bought the disputed swampy farmland from the Ward head Gandu, the evidence of PW2 cannot be said to have supported the claim of the respondent. Learned Counsel further argued that under Islamic Law, any witness that gives evidence of ownership over landed property must trace the root of title of the owner, that the property never left his possession in any way at least 10 months before the suit or more. Failure to do so makes the evidence not amounting to evidence relying on page 264 of Ihkamil Ahkam Ala Tufatul Hukkam.

On the 2nd issue, learned Counsel pointed out that under the Sharia, a claimant’s statement before a court is merely a claim, which must be proved by evidence in support thereof and as such it cannot constitute evidence. That under Islamic Law, a plaintiff or defendant cannot be a competent witness in his case. Parties must bring independent witness, who has no interest in the subject matter of the dispute to prove their cases. Page 9 of Ihkamil Ahkam Ala Tuhfatul Hukkam was relied upon. That the lower court was therefore wrong in considering the statement of claim of the respondent as part of the evidence in support of his claim.