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.

I have considered the arguments of both counsel to the parties on this issue. It is my view that the plaintiffs claim (rather than the defendant’s counter-claim) at the lower court that determines the jurisdiction of the Court in a matter of this nature. See the Supreme Court decision on the issue in Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (Pt.117) 517: Engineer S.D. Yalaju-Amaye v. Associated Engineering Contractor & Ors. (1990) 4 NWLR (Pt. 145) 422; (1990) 6 SCNJ 149; See also Goni Umaru v. Gajero Dawa & Anor. Unreported decision of this panel in Appeal No. CA/J/60/S/90 delivered on 11/2/91. In the light of the foregoing authorities, it is necessary to examine the claim of the plaintiff/respondent before the trial Area Court, Maradun. This can be found at page 1, lines 9-14 of the records which read thus:-

“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.”

From the above claim, it is clear that this is a case of a dispute over my heritable estate which any person withholds away from heirs. The question is whether such a dispute qualifies as one of succession and falls within the ambit of Section 242(2)(c) of the 1979 Constitution. This poser had come for consideration by this panel of the Court of Appeal in many cases including Garba v. Dogonyaro (1991) 1 NWLR (Pt. 165) 102 p. 111 paras C-F where the Court per Okunola, JCA, held thus:-

“Before a dispute could become a question regarding the issue of succession in order to confer jurisdiction on Sharia Courts, it must make succession an issue. Thus, the instances in which issue or dispute could be made a subject of succession as envisaged by section 242(2)(c) of 1979 Constitution include the following viz:-

(a) a dispute over the failure to distribute the estate after the death of the deceased,

(b) a dispute over the devolution of the estate between the heirs,

(c) a dispute over any heritable estate which any person withholds away from heirs,

(d) a dispute over the right to make a particular property within the estate,

(e) a dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime,

(f) a dispute over payment of a debt made by the deceased in his lifetime from the estate he had left behind,

(g) a dispute over the exclusion of a heir from inheriting from the estate.

And all such which can be attributed to the estate succession.From the foregoing, it can be seen that the issue for determination in the present appeal falls within the ambit of (c) above a dispute over any heritable estate which any person withholds from the heirs. This is so because it is the contention of the appellant that the disputed farmland constituted part of the heritable estate of his late father which the appellant has withheld from the heirs. Consequently, the dispute here qualified as one of succession and fall within the ambit of Section 242(2)(c) of the 1979 Constitution supra. I therefore hold that the SCA had jurisdiction over the appeal contrary to the contention of the learned counsel to the appellant.

Having dealt with the issue of jurisdiction, it is necessary to go to issue 3 dealing with burden of proof. In this regard it is necessary to examine whether the procedure adopted by the trial Area Court in this case affirmed by the SCA was in order – particularly in treating the defendant/appellant as a plaintiff in the trial Area Court and whether the plaintiff/respondent could be treated as having proved his case as required by Islamic Law. It is necessary to point out that at the Area Court, when the claim as in page 1 of this judgment was read to the defendant/appellant, he denied it and made a counter-claim that he purchased the inherited farmland from the late father of the respondent. The Court then asked the defendant/appellant whether he had witnesses to prove his purchase of the farmland. He replied that he had no witnesses as it was only a transaction between him and the late father of the plaintiff/respondent. He however said he had a document given to him by Sarkin Kaya. He later tendered the letter dated 13/4/88. The plaintiff/respondent objected to the letter claiming that it was an arrangement as it was written after the death of his late father. The trial Area Court as earlier reviewed found that the defendant/appellant did not prove his counter-claim and gave oath to the plaintiff/respondent and affirmed the farmland to him. Two issues have been raised here viz:

1. Whether it was proper for the court to treat the defendant/appellant as plaintiff in the circumstances of this case.
2. Whether the respondent ever proved his own claim in the circumstances of this case.

On this first sub-issue, learned counsel to the appellant submitted at pages 5-9 of the appellant’s brief that the defendant/appellant need not prove his counterclaim as the plaintiff/respondent is the only person under Islamic Law that is required to prove his claim even where there are two claims as in the instant case.

Learned counsel cited Sharia authorities as well as section 145 of the Evidence Act. By way of reply, learned counsel to the respondent submitted at pages 2 & 3 of the respondent’s brief that under Islamic Law where a party admits root of title in a disputed landed property to belong to the other party but at the same time makes a claim that the said subject matter had been transferred to him by the other party or his predecessor in title, he automatically becomes the plaintiff and the burden is placed on him to prove his counter-claim. Learned counsel further submitted that it is from the nature of claim before in court that the judge determines the proper plaintiff and not on who first went to court. Learned counsel cited Sharia authorities for this contention. I have considered the submissions of both learned counsel to the parties on this sub-issue of whether the court can determine a plaintiff in a multi-claim case. This poser had come up for consideration and resolution in a number of Sharia authorities which had been approved by the appellate courts in this country. According to Bahja vol. 1 page 25, the position under Islamic Law is that the determination of plaintiff and defendant in a civil suit by the judge is the foundation of proceedings. Thus, where, like in the instant case, a plaintiff goes to court to claim title to the disputed land but in response to the claim the defendant admitted that the land in dispute belonged to the plaintiffs father but that he purchased same from him, the admission of the defendant on the claim of the plaintiff dispenses the court with the proof of the claim. The defendant will then be asked to call witnesses as plaintiff to prove his counter-claim of purchase. The reason for this is that the burden of proof is on the defendant the moment he admitted root of title to the farmland to the plaintiff’s father. This stems from the position of Islamic Law which is common to the common law that where a claim is admitted there is no need to call any witness to prove same. See: Saa & Anor v. Iro (1961-1989) 1 SLRN 189. This stems from the Islamic Law maxim: “Al-Igrar ninal shudud” meaning an admission is more preferable than the testimony of witnesses. See Ruxton, Maliki Law Chapter xxiii paragraph 718. In consequence, the position under Islamic Law is that where a party admits the root to title to a disputed land to belong to the other party but at the same time makes a claim that the said subject matter was transferred to him by way of gift, sale or similar transactions between himself on the one hand and the party suing him or his predecessor in title on the other hand, he automatically becomes the plaintiff and the burden is mandatorily placed on him to prove his claim. In such circumstances, the issue is not on who first went to court, but the nature of the claim put forward by the parties before the court. In such a situation, it is the duty of the trial Judge, as reiterated supra, to first of all determine who proper plaintiff is and who proper defendant is before proceeding to try the action. See Bahja Vol. 1 page 25 supra.

However, if after being given the opportunity as a plaintiff to prove his claim, the defendant fails to establish his claim by evidence, then judgment is given to the Plaintiff/defendant after taking an oath (YAMINNL ISTINQAQI). See: Bahja Vol. 11 page 265. However, in the instant case, the defendant/appellant produced no witnesses in support of his claim save a document by the Sarkin speaking of the transaction which according to the respondent was written many years after the death of his father. The sum total was that the defendant/appellant failed to produce credible evidence to prove his counterclaim, hence oath was given to the plaintiff/respondent as required by Islamic Law and the landed property was awarded to him as the more credible of the parties. See: Dasuki, Vol. IV commentary in Muktassar Khali; Ashalul Mudarik, commentary on Ishadas Salik, Vol. 3 p. 228; Ruxton Maliki law paragraph 1695 which were quoted with approval in Alhaji Haruna Usman v. Umaru Garba Kusfa (1997) 1 NWLR (Pt.483) 525, p. 534. See also Binta v. Ado Mai Nassara & Ors. (1961-1989) 1 SLRN 136, p. 139. In the light of the foregoing authorities, I resolve both sub-issues also in favour of the respondent. My attention has been referred to burden of proof under section 143 of the Evidence Act which approximates to the general proof under Islamic Law by learned counsel to the appellant. It must be emphasised that in the case of multi-claim matter where the judge settles the issue of plaintiff and respondent first constitutes an exception to the general rule thereof on burden of proof on Islamic Law. The English law principle cited by the appellant’s counsel is inapplicable since we are enjoined in matters of Sharia to follow Islamic Law principles where they are in vogue and not to import other systems into it. See the authencity for those in the Holy Quoran Chapter 5 verses 43-46.

I shall now address the last issue dealing with the doctrine of prescription (Hauzi). Learned counsel for the appellant on paragraphs 3-5 of the appellant’s brief submitted that since the appellant had been in peaceful possession of the disputed farmland for 17 years without objection from the plaintiff/respondent the respondent has lost his claim over the disputed land. By way of reply learned counsel to the respondent on pages 6-8 submitted that the principle of Hauzi is not applicable in the circumstances of this case since from the record it is clear that he was not aware that the disputed property was in the hand of the defendant/appellant as he was based in Kana while the land is situate in Sakata. Furthermore he became aware of the appellant’s possession when he carne from Kana to inherit same and immediately he became aware he went to court to challenge him.

I have considered the submissions of both learned counsel to the parties on this issue of Hauzi. The principle guilding the Islamic Law doctrine of Hauzi had been restated by the Supreme Court in Hada v. Malumfashi (1993) 7 NWLR (Pt.303) 1 SC at pages 19 & 20 per Wali, J.S.C. thus:

“The principle of ‘Hauzi’ or prescription is stated thus in the Hadith:

Whoever is in peaceful possession of a thing (real property) for 10 years, becomes its owner … where a person (not being a relation to the claimant) has been in possession of a real property for ten years, he acquires ownership of it…

But there are exceptions to this principle

1. Cogent reason for not complaining in time e.g. blood relationship or fear of harm from authority.
2. Minorship
3. The person in possession was put there by the claimant either as a free or paying tenant.
4. The person in possession is put in there as a trustee.
5. The claimant is a partner or co-proprietor to the person in possession.I have gone through the principles in Hauzi and the exceptions thereto highlighted above, I am satisfied and I believe the reason of lack of knowledge of possession given by the plaintiff/respondent who at the relevant time was out of town in Kano while the land is in Sokoto. The fact that the plaintiff/respondent did not come for the property until inheritance opened lends credence to the reason and the cogency of his story. In the light of the first exception to the principle, I am of the firm view that this transaction is not caught by Hauzi as the possessor was in permissive occupancy only. See: Mayyarah Vol. 11 page 164 and Maliki Law by Ruxton (supra) p. 309 para. 1698. In the circumstance, this sub-issue is resolved in favour of the respondent.

In sum, this appeal fails on all issues canvassed and it is dismissed. The judgment of the SCA which reversed the earlier decision of the Talata Mafara UAC and affirmed that of the trial Maradun Area Court is hereby affirmed. The disputed farmland is awarded to the plaintiff/respondent. Costs of N1, 500.00 is awarded in favour of the plaintiff/respondent.

Other Citations: (1998)LCN/0405(CA)