Alhaji Inuwa Abubakar V. Dudu Abdu Gama (1998)

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OKUNOLA, JCA

This is an appeal against the judgment of the Kano State Sharia Court of Appeal holden in Kano delivered on 30-11-94.

The facts of this case briefly put were as follows:

The respondent herein as plaintiff sued the appellant herein as defendant at the Sahon Gari Area Court claiming as per page 7 of the records as follows:

“I am suing Alhaji Inuwa seeking the help of the court to receive the house of my husband in his possession which he has bought from M. Sani Gama for the sum of 190pounds equal to N380 since about 24 years ago. The said house is situate at Gama Quarters and it has neighhours as follows: East – Alhaji Garba: West-M. Sanni: South – Road: North – Alhaji Aminu Mai Gwanjo.”

When the parties were invited by the court and the plaintiff was asked to state her claim in the presence of the defendant, she repeated on the same page of the records thus:

“I am seeking the court to divide the inheritance of my husband Sgt. Audu who has died about a month and a half. He has left behind me Dudu as his wife and his four male children and one female. He has no father or mother, and he has a house at Gama and I have forgotten the number of the house but the said house is in possession of his brother the defendant. Myself I am living in the house with my husband up to the time he died.”

When confronted with the claim by the court the defendant denied saying that the house belonged to him as he bought it from A. Sani Gezawa for 195pounds with title document No. 7248/73 signed by Waje District Head on 25 -4- 67. He said out of the proceeds of sale the plaintiff’s husband gave him 80pounds to keep for him, claiming that the sale took place in 1967. On being confronted with the defendant’s defence, the plaintiff confirmed knowing that when her husband was away for the Biafran Civil War he sent 350pounds to the defendant/appellant to buy him a house which the defendant did. The court conducted a visit to the house in dispute with the parties. Thereafter, at the instance of the court the plaintiff called three witnesses namely, Muhammadu Yahusa aged 70 years (PW1), Reuyanu Gamaaged 55 years (PW2) and Garba Gama aged 65 years (PW3). All these witnesses confirmed the claim of the plaintiff. The defendant also called witnesses to support his counterclaim.

They were Alhaji Sani Gezawa aged 65 years (DW1) and Amadu Ringim aged 57 years (D\V2). After the close of evidence of witnesses for the parties, the Area Court reviewed the evidence of both parties and in the end entered judgment in favour of the defendant/appellant and confirmed the disputed house to the defendant/appellant. Dissatisfied with this judgment, the plaintiff/respondent appealed to the Sharia Court of Appeal Kano. After going through the records and reviewing the cases of both parties at the lower court the Sharia Court of Appeal. Kano (hereinafter referred to as the SCA) allowed the appeal and reversed the decision of the Area Court. The Sharia Court of Appeal ordered the Area Court to divide the disputed house into two equal parts and to give one half to the appellant and the other half to the respondent upon each party subscribing to an oath.

Dissatisfied with this judgment the defendant/appellant (hereinafter referred to as the appellant) appealed to this court on four original grounds of appeal.

From the four grounds of appeal filed in this court, the appellant has formulated the following three issues for determination in this appeal. viz:

“1. Whether the appellant and respondent have equal number of witnesses.

2. Whether to take an oath in respect of the respondent’s claim was proper.
3. Whether the proper Islamic Law procedure was followed by the lower courts in arriving at their respective decisions.”

The respondent, who was not represented by a counsel also formulated three issues which though couched in a different language are similar to the three issues formulated by the appellant. These are:

“1. Whether the Appeal Court arrived at its decision correctly when it held that each of the respondent and appellant has equal number of witnesses.