Alhaji Ila Alkamawa V. Alhaji Hassan Bello & Anor (1998)
LAWGLOBAL HUB Lead Judgment Report
ABUBAKAR BASHIR WALI, J.S.C.
The appellant as plaintiff complained before Area Court Grade 1C sitting in Sokoto town as follows:
“I Magaji Ila Alkamawa, I am suing Hassan Bello
Magajin Rafi Sokoto because I am holding his
father’s house Magajin Rafi Bello who loaned it to
The house has been in my hand for more than
eight years and I am a neighbour to the house from
the east west and south, Magajin Rafi is now dead.
The defendant Hassan came to me and told me that
they wanted to sell the house. I then told him that
I want to buy the house. Already the house has
been put to market as I said that after obtaining its
market price which is accepted to him. I will pay
the money. It was later after five days I heard from
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him that the house was sold at the cost of
N26,000.00. Infact, the wall of my own house
where I formerly lived is linked to the said house.
So also some of my properties including my sheep,
motor spare parts and drums and kept in that
house. That is why I sued him so that the Court will
investigate the matter because I am entitled to buy
the house.”
In compliance with Islamic procedural law, the facts
above as stated by the plaintiff were put to the
defendant Hassan Bello Magajin Rafin Sokoto who
replied:
“I have heard the complaint but I am not aware
that my father gave him the house to hold; also,
I am not aware that there are his properties in
that house. In the name of Allah I even don’t know
his house. It is also true that I sold the house to
Alhaji Malami Yabo at the rate of N26,000.00 and
he paid me. I know that I usually meet him near to
the said house and when entering in the house he
follows me.
When the house is to be sold, I sent Mu’azu to go
and call Alhaji Ila. When Ila met me in my house I
told him that I want to sell the house, does he want
to buy it He said he does. We then arranged that
he should go and find some people who are
knowledgeable in pricing houses to come and
estimate the value of the house. Later he sent
Nasiru to me that the house has been priced as
follows: N18,000.00; N19.00.00 and N20,000.00.
Although I have already decided to sell the house
at the cost or N30,000.00. I then said that he
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should be informed that we shall sell the house at
the cost or N30.000.00 what has he got to say He
replied that the house is too costly for him let them
go if somebody buys it, let him be informed. So and
hearing this and to my understanding, presumed
that he does not want to buy. This is because if
there is an outstanding bargain you cannot
negotiate another with somebody that is why I sold
the house to Alhaji Malami Yaro, that is all I have
to say’”
At this stage it appears Alhaji Malami Yaro was
brought in by the Court as co-defendant, and when
the claim of the plaintiff and the reply to it were
read to him by the court, he replied:
“I have heard and it is true that I bought that
house at the cost of N26,000.00 and l paid the
money. That is all I have to say.”
The plaintiff was called upon to prove his case
which, from the statements of both the plaintiff and
the defendant is “Shufa” that is the right of
pre-emption as a next-door neighbour to the house
sold by the defendant to Alhaji Malami Yaro. The
plaintiff called Atto, Abubakar Sarkin Gida, Buda,
Alu, Maishinkafa as witnesses. These witnesses
gave evidence that the plaintiff was a next-door
neighbour to the house in dispute and same was
entrusted to him by its owner later Magajin Rafi
Bello and up to the latter’s death. He had been
looking after the house, storing therein some of his
properties, including empty drums and motor spare
parts for the past eight years.
The learned trial Area Court Judge considered and
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accepted the evidence adduced by the plaintiff and
concluded:
“With regard to what happened before this Court.
Therefore I ordered the sale as valid that which
took place between Alhaji Malami Yaro and Alhaji
Hassan.
I ordered Alhaji Ila to pay Alhaji Malami Yaro his
money N26,000.00, after he paid N26,000.00 I
confirmed the house to him from there East to
North – 98ft 2 inches. West to East 72ft 3 inches,
South to North 99ft 10 inches from East to West
73ft.”
Against this judgment Alhaji Hassan Bello and
Alhaji Malami Yaro as defendants appealed to the
High Court, Sokoto in its appellate jurisdiction.
The High Court, after hearing the parties to the
appeal before it allowed that appeal, giving its
reasons as follows:
“1. Non-identity of the subject matter in dispute
contrary to the provision of Rule 1 of the Area
Court (Civil Procedure) (Amendment) Rules. 1980.
Learned trial Judge descended into the arena of
litigation by providing the missing linking evidence
of the location and boundaries of the subject matter
contrary to Rule 5 of the Area Court (Civil
Procedure) (Amendment) Rules 1969.
None of the witnesses called were cross-
examined.”
The decision of the trial Area Court was set aside
by the High Court and in its place an order for a
retrial was substituted.
The plaintiff as appellant and the defendants as
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cross-appellants appealed to the Court of Appeal,
Kaduna Division, against the decision and order
made by the High Court Sokoto in its appellate
capacity. In the Court of Appeal both the appellant
and the cross-appellants filed and exchanged briefs
of argument.
After a careful consideration or the briefs and the
oral arguments presented for and against the
appeal and the cross-appeal, the Court of Appeal in
its unanimous judgment came to the following
conclusions among others:
“The right of Shufa becomes null and void when it
is abandoned voluntarily [Ikhtiyar]
xxxxxxxxxxxxxxxx Applying this principle to the
case in hand, it can be seen that the 1st
respondent gave the first option to his neighbour
the appellant herein. When the price was fixed, the
appellant advised the 1st respondent to go the
market overt and see if he would get a buyer and if
he gets one he should come back to him and he
would then pay the offered price.
By this condition imposed by the appellant, after he
has been given the 1st option to purchase, the
appellant has waived or abandoned his right. This is
because he has allowed the 1st respondent to go to
the market overt. This waiver renders the
appellant’s right null and void and I so hold. In the
circumstance the trial Area Court was in error when
it nullified the sale made by the 1st respondent to
the 2nd respondent when the right of pre-emption
of the appellant had become null and void. The
Court should have confirmed the said sale made to
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the 2nd respondent and not otherwise.”
The Court of Appeal allowed the appeal of the
appellant and upheld the cross appeal of the 1st
and 2nd respondents/cross-appellants. The
judgment of the High Court, Sokoto silting in its
appellate jurisdiction was set aside and in place
thereof’, the court of Appeal judgment concluded:
“I substitute our judgment which reverses that of
the Area Court Grade 1C Sokoto, whereby the sale
of the house in dispute by the 1st respondent to
the 2nd respondent is accordingly affirmed. The
cross appeal also succeeds.”
Dissatisfied with judgment of the Court of Appeal
Alhaji Ila Alkamawa, the plaintiff and also appellant
in that Court further appealed to this Court. In
compliance with rules of this court learned Counsel
for the parties filed and exchanged briefs of
argument. Henceforth the plaintiff and the
defendants shall be referred to as the appellant and
respondents respectively.
The simple facts of this case are as follows:
The appellant is a next door neighbour to the house
in dispute which house was owned by late Magajin
Rafi Sakata Bello and during the latter’s life time
he entrusted the same to the appellant to take care
On the death of Magajin Rafi Bello the house in
dispute became part of his estate. The 1st
respondent, Hassan Bello and as one of the heirs to
late Magajin Rafi Bello agreed with the other
remaining heirs to sell the house in dispute. 1st
respondent approached the 1st appellant and
offered the sale of the house to him at a price of
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N30,000.00 which he declined by saying that the
price was too high for him. Thereafter the 1st
respondent sold the house to Alhaji Malami Yaro for
N26,000.00. It was after the sale that the appellant
instituted an action in the Area Court Grade 1C
claiming to repurchase the house on the same price
it was sold to the 2nd respondent by exercising his
right of “Shufa”. i. e. pre-emption, as a next door
neighbour.
As I said earlier both parties filed and exchanged
briefs. In the appellant’s brief the following two
issues were raised:
“(1) Can the appellant be said to have waived or
abandoned his right of Shufa under Islamic law
having regard to the evidence before the trial
court.”
(2) Can the sale of the property in dispute by the
1st respondent to the 2nd respondent be affirmed
in accordance with Islamic law having regard to the
facts of the case.”
In the brief filed by the respondents three issues
were formulated as follows:
“(i) Whether the appellant has locus standi to
institute the action. Even if the 1st issue were in
the affirmative, having regard to the grounds of
appeal,………
(ii) Whether the appeal is competent without
obtaining the leave of either the Court below or this
honourable Court;
(iii) Whether the Court of Appeal was right in
holding that the appellant has waived or abandoned
his right of Shufa having regard to the
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circumstance of this case.”
On 24/3/98 when the appeal came up for hearing
the preliminary objection filed by learned Counsel
for the respondents on 20/10/93 attacking the
locus Standi of the appellant and the competence of
the grounds of appeal was withdrawn and it was
struck out. With the withdrawal and striking out of
the preliminary objection, issues (i) and (ii) in the
respondent’s brief have become equally
incompetent and are hereby accordingly struck out.
The remaining issue (iii) is covered by issue 1 of
the appellant’s brief. So in deciding this appeal I
will adopt the two issues formulated in the
appellant’s brief, which I consider adequate for its
disposal.
The two issues raised in the appellant’s brief can be
merged into one and be re-formulated as follows:
“The appellant having admitted being a next door
neighbour to the house in dispute, has he any right
of pre-emption [Shufa] to repurchase the house in
dispute from the 2nd respondent on the same price
compulsorily under the relevant and applicable
Islamic law”
It is the submission of learned Counsel for the
appellant that the appellant, being the next door
neighbour to the house in dispute has the right of
first option to purchase the same under the
doctrine of Shufa i. e. pre-emption as enshrined in
Islamic law. He contended that, where the property
is sold without the neighbour’s permission, the
neighbour can trace the property to the third party
and pre-empt it, and that under Maliki law the
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period within which the pre-emptor can exercise
the right is fixed at one year from the lime the
right accrues. He submitted that in the
circumstance of this case the appellant expressed in
good time his intention to purchase the property
and could not therefore be said to have waived or
abandoned his right of pre-emption (Shufa),
learned Counsel quoted and relied on the Hadith as
reported in Bukhari that:
“O Prophet of Allah I have two neighbours. Which
one of the two shall I sell the share first The
prophet replied to the neighbour whose door is
nearer to your door.”
In reply learned Counsel to the respondent
submitted that the 1st respondent offered the
house in dispute for sale to the appellant to which
the latter gave a conditional acceptance and made
a lower offer below what the 1st respondent was
demanding. He said it was as a result of the
equivocal stand by the appellant that the 1st
respondent sold the house to the 2nd respondent
for N26,000.00. He submitted that the appellant by
his equivocal stand in the transaction was deemed
to have waived his right of pre-emption (Shufa) to
purchase the property as the next door neighbour
to it. He urged the appeal to be dismissed.
The word Shuf’ah or pre-emption is defined in
Ruxton-Maliki Law as follows:
“Pre-emption is the right by which a co-owner in
immovable property may redeem from a stranger,
in consideration of compensating him, that part of
the property which has been sold to him by another
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of the co-owners.”
It is not disputed that the appellant is the
next-door neighbour to the house in dispute. Both
parties know the identity and the location of the
house being litigated upon.
So its identity is a non-issue. The question to be
asked and answered is:
Under the applicable principle of Islamic law does
the appellant as a next door neighbour to the
house in dispute possess the right of pre-emption
over its purchase In other words, can the
appellant compulsorily re-purchase the house in
dispute from the 2nd respondent who is a stranger
by refunding the same price he paid for it
In Sahihul Bukhari vol. 3 page 165 paragraph 2257
the law is stated as follows:
“Allah’s Apostle [P.B.] gave judgment on the right
of pre-emption for partners in property which has
not been divided up. When boundaries had been
fixed between them, then there was no rights of
pre-emption.”
In Muwatta Malik vol. II page 250 under heading
No. 35 The Book of Pre-emption (translated into
English by F. Amira Zrein Matraji and published by
Dar EI-Fikr, Beirut) the law is stated thus:
“(1420) 1- Yahya narrated from Malik, on the
authority of the son of Shihab, from Sai’d bn al-
Musayyib, and from Abu Salama bn Abdur-Rahman
bn ‘Auf (may Allah be pleased with them) that the
Messenger of Allah [May peace and blessings of
Allah be upon him] had judged for partners the
right of pre-emption in property which has not been
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divided up. When boundaries had been fixed
between them, then there was no right of
pre-emption.”
Imam Malik was reported to have said, and in
confirmation of the above tradition:
“And on that, the tradition in which there is no
difference in it among us.”
Imam Malik is also reported, in the same book, to
have said:
“(1421) 2- Malik said: That it reached him that
Sai’d bn Al – Musayyib was asked about the
pre-emption. Is there any tradition in it’ He
said: Yes, the pre-emption in the house and the
land. And it does not occur but between partners.”
In Bidayatul Muytahid Vol. II page 193 both Malik
and Shafii were reported to have opined thus:
“The right of pre-emption exists between partners
in jointly owned property which has not been
divided by the partners. Where it has been divided
and boundaries fixed and demarcated, the right of
pre-emption abates.”
In Adawi Vol. II page 229, the author stated the law
as follows:
“Pre-emption exists in joint property. There is no
pre-emption in what has been divided; and a
neighbour has no right of pre-emption.”
In Ashalul Madarik Vol. 3 page 37 it is stated:
Pre-emption is a compulsory existing right between
partners in farms and public domain commensurate
to the share of each in such joint property.”
In Ihkamul – Ahkam (commentary on Tuhfah) the
author also stated the law as follows on p. 198
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thereof:
“The majority view of the jurists is that a neighbour
has no right of pre-emption.”
See also Al-Khirshi Vol. 6 page 163 (commentary
on Mukhtasar eI – Khalill) wherein also it is stated:
“It does not accrue to a neighbour who has a right
in an access road. This has been construed to mean
that the neighbour has no right of pre-emption
even where he possesses a right in an access road
to the house that had been sold.”
In Main-ar-Risalah of Ibn abi Zayyid page 189
(translated into English language by F. Amira Zrein
Matraji and published by Dar EI Fikr. Beirut, Liban)
the author said:
“But pre-emption is in the public domain. No
pre-emption in which is distributed, nor for a
neighbour, or a road or a court of a house whose
houses have been distributed, nor in the male
palm-trees or a well if palm-trees are distributed,
or the land.
A pre-emption is but in the land and what is
connected of it of the building and the tree.”
This is the Islamic law of the Maliki school which is
applicable generally to Northern States of Nigeria.
See the definition of “Muslim personal law” in Area
Court Edict, 1967 read together with the definition
of the same law in the Sharia Court of Appeal Law
Cap. 122 Vol. III, Laws of Northern Nigeria and
Section 14 of the same Law.
In the Area Courts Edict (No. 21) of 1967 “Muslim
personal law” is defined thus:
“Muslim personal law has the same meaning as it
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has in Cap. 122 – Sharia Court of Appeal Law.”
In the Sharia Court of Appeal Law Cap. 122
referred to supra, “Muslim law” has been ascribed
the following definition in S. 11:
“means Muslim law of Maliki school governing the
matters set out in paragraphs (a), (b), (c) and (d).”
14(a) of the Sharia Court of Appeal Law also
provides thus:
“14. The Court in exercise of the jurisdiction vested
in it by this Law as regards both substantive law
and practice and procedure, shall administer,
observe and enforce the observance of. The
principles and provisions of:
(a) Muslim law of the Maliki school as customarily
interpreted at the place where the trial at first
instance took place.”
11 (e) of the Law further provides that:
“(e) Where all the parties to the proceedings
(whether or not they are Muslims) have by writing
under their hand requested the Court that hears
the case in the first instance to determine that case
in accordance with Muslim law, any other question.”
Reading all the provisions of the Laws referred to
above, it can easily be discerned that the applicable
Muslim law in Area Courts is the Islamic law of the
Maliki school. Also going by the interpretation of
the words “native law and custom” which includes
Muslem law, the applicable Islamic law of Maliki
school, from the time of establishments of these
Courts (both before and after the colonisation of the
area today being referred to as Northern States of
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Nigeria and up to today) has been the applicable
law in the Courts. So on the principle of notoriety
the law has gained acceptance and recognition by both the inferior and the superior Courts in this country that judicial notice of it can be taken.
Islamic law is not same as customary law as it does
not belong to any particular tribe. It is a complete
system of universal law, more certain and
permanent and more universal than the English
common law .
It is true that there is another Hadith which confers
the right of Shufa to a neighbour. This has been
interpreted by Islamic law jurists in different ways,
and out of the four Sunni schools of law i.e. Maliki,
Shafi’i, Hanafi and Hambali. It is only the Hanafi
school that confers the right of Shufa on a
neighbour. The majority view as stated by Maliki is
that a neighbour does not possess the right.
In the matter before us now and from the
statement of the law of Maliki school, I come to the
conclusion that the appellant being a neighbour to
and not a partner in the ownership of the house in
dispute, has no right of pre-emption. The sale of
the house by the 1st respondent to the 2nd
respondent is valid and in order. The appellant has
nothing to waive in the matter as wrongly opined
by the Court of Appeal. The appeal fails for the
reasons stated above, other than those stated by
the Court of Appeal. I dismiss it and affirm the
conclusion reached by the Court of Appeal which
set aside the decisions of both the trial court and
the appellate High Court. The sale of the house by
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the 1st respondent to the 2nd respondent is hereby
declared valid and is affirmed.
Parties are to bear their own costs in this appeal.