Alhaji Yusuf Adamu Gwabro V. Alhaji Abdullahi Gwabro (1998)

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OKUNOLA, J.C.A.

This is an appeal against the judgment of the Sokoto State Sharia Court of Appeal sitting at Gusau which reversed the earlier decision of the Talata Mafara Upper Area Court and awarded the land in dispute to the respondent.

The facts of this case briefly put were as follows:

The claim of the plaintiff/respondent against the defendant/appellant at the Maradun Area Court as per page 4 lines 9-14 of the records was as follows:-

“I, Alhaji Abdullahi, I am suing Yusufu because the land which is left by our deceased father by then I was at Kano, it was later when I came back to take my own share I discovered that the land is with Yusufu and when I asked him he told me that he bought the land in dispute. That is why I institute an action against him.”

On being confronted with the plaintiff/respondent’s claim before the Judge at the Area Court, Maradun, the defendant/appellant denied this claim and claimed that he bought the farmland in dispute from the father of the respondent for the sum of ? 18(N36.00). The case proceeded to trial. Before the trial court, the defendant/appellant informed the court he had no witnesses to call to prove the purchase stating that the transaction took place between himself and the respondent’s father alone. He, however, informed the court that he had a letter dated the 13th day of April, 1988 written for him by the Sarkin Kaya of Maradun many years after the purported sale in which the Sarkin Kaya confirmed the purchase as having taken place between the appellant and respondent’s father. It will be recalled that after the claim of the plaintiff/respondent was read to the defendant/appellant he denied the claim and counter-claimed that he bought the inherited land from the deceased father of the plaintiff/respondent. The Court asked whether the defendant/appellant could produce witnesses to prove his counter-claim. He said he had no witnesses but had a letter which the Sarkin wrote about the purchase. The Court accepted the letter which the plaintiff/respondent claimed to be a ruse as it was written after the death of his late father. On the final analysis the defendant/appellant could not discharge the onus placed on him on his counter claim. At the end of the trial, the trial Area Court administered oath on the respondent and conferred him with the title to the land in dispute.

Dissatisfied with this decision of the Area Court, the appellant appealed out of time to the Upper Area Court, Talata Mafara, with leave of that court which was granted. The Upper Area Court (hereinafter referred to as the UAC) went through the records and heard the parties. The UAC allowed the appeal. Dissatisfied with the decision of Upper Area Court, the respondent herein appealed to the Sharia Court of Appeal, Sokoto State sitting at Gusau (hereinafter referred to as the SCA).

After going through the records, the grounds of appeal and hearing parties contentions, the SCA allowed the respondent’s appeal. Being dissatisfied with the decision of the SCA, the appellant has now appealed to this Hon. Court on four grounds of appeal. From the four grounds of appeal, the appellant has formulated three issues for determination in this appeal, viz:

1. Had the Sharia Court of Appeal the jurisdiction to entertain the appeal as it did having regard to section 242 of the Constitution of the Federal Republic of Nigeria (despite the amendment of same by Decree No. 26 of 1986)?
2. Does the principle of Hauzi apply as a defence to the appellant?
3. Did the respondent who was the claimant at the trial Court prove his case as required by Islamic Law?

The learned counsel to the respondent also formulated four issues which but framing and language used boil down to the three issues raised by the appellant in the appellant’s brief. The only further addition by the respondent is the question “On whom the burden of proof lies among the parties – appellant or respondent and whether either of them has discharged the onus.” I shall treat this along with appellant’s issue No.3 since this is on burden of proof as well.

Both learned counsel to the parties filed their respective briefs on behalf of their respective clients. Both learned counsel to the parties adopted these briefs and went further to address us viva voce to highlight some points. Learned counsel to the appellant Mr. CM. Inuwa adopted and relied on the appellant’s brief filed on 31/5/94. He said he had nothing to add and urged the court to allow the appeal.

By way of reply, learned counsel to the respondent Wakila Saddiq, Esq. adopted and relied on the respondent’s brief filed on 6/11/95 but deemed filed on 6/6/96 by an order of this court made on that date. Learned counsel said he had nothing to add but urged the court to dismiss the appeal. By way of further reply, the learned counsel to the appellant Mr. Inuwa said he had nothing to add.

I shall now examine the submissions of both counsel to the parties vis-a-vis the records and the prevailing law. However, since jurisdiction is Fundamental to adjudication, it is hoped to deal with issue No.1 which centres on jurisdiction since the outcome of this issue will determine whether or not the other issues will be considered.

On issue 1 touching on the jurisdiction of the SCA to entertain the present appeal, learned counsel to the appellant submitted by way of summary at page 10 of the appellant’s brief that the jurisdiction of the Sharia Court of Appeal is founded on S. 242(2) of the 1979 Constitution as amended and that from the issue canvassed before the trial Maradun Area Court, the plaintiff’s claim at the trial Maradun Area Court, centres on title to land which is outside the jurisdiction of the SCA which is only vested with jurisdiction to determine only questions of Islamic personal law Counsel cited. Usman v. Umant (1992)7 NWLR (Pt.254)377; (1992)7 SCNJ (Pt.11) 388, p.400 and Garba v. Dongonyaro (1991) 1 NWLR (Pt.165) 102. Learned counsel referred to the claim at the trial Area Court which is ownership of land and urged the court to remit the case to the High Court for lack of jurisdiction. Thus, on this issue, Mr. C.M. Inuwa for the appellant urged the court to allow the appeal.

By way of reply, learned counsel to the respondent, Mr. Wakilla Siddiq at page 9 of the respondent’s brief submitted that the respondent’s claim at the trial Area Court related to inherited land being withheld by the appellant hence it comes within the ambit of S. 242 of the Constitution which is a matter of Islamic Law for which the SCA had jurisdiction.