Bala Ahmed V. Umaru Mohammed (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment delivered on 30th May, 2006 by the High Court of Justice, Niger State (Appellate Division) (coram: Hon. Justice Jibrin N. Ndajiwo – C.J and Hon. Justice Christopher I. Auta) in APPEAL NO. NSHC/MN/3A/2005 – BALA AHMED V. UMARU MOHAMMED. The said High Court will hereinafter be simply referred to as “lower court”. The lower court in its judgment dismissed the appeal of the Appellant.

The facts of this case as can be gathered from the record of appeal are that the Appellant before the lower court (and who is equally the Appellant before this Court) as plaintiff commenced the instant case on appeal before the Upper Sharia Court of Niger State holden at Minna. The Upper Sharia Court will hereinafter be simply referred to as “the trial court”). The Appellant’s particulars of claim before the trial court as set out at pages 1 – 2 of the Record read thus: –

“The Plaintiff claim (sic) against the Defendant is for the Sum of N450,000.00 being special and general damages for the act of the Defendant to detain (sic) the Plaintiffs (sic) vehicle a Baby Starlet Reg. No. AA 633 KUT on the 26th July, 2003. The Plaintiff claims the return of the vehicle to the Defendant forthwith. The plaintiff on or about the 25th of July, 2003 received a letter Signed (sic) by the Defendant asking the plaintiff, who is his subordinate to bring his car to his house. He lured the plaintiff who duly drove his car and all the documents of the car to the Defendant’s house. On getting there on the 26th July 2003 the Defendant impounded the car and the particulars. The car is still in the Defendant (sic) house to date. The Plaintiff uses the car for commercial purposes where he earns N3,000.00 per diem. Since the car was Seized (sic) and detained by the Defendant unilaterally, it has been in his custody between 26/7/2003 to 4/10/2003 a period of 100 days. At the rate of N300,00k (sic) the plaintiff has lost the use of the car at a cost of N3000,000.00 (sic). The plaintiff spent the sum of N50,000.00 for suits, the sum of N50,000.00 as legal fees and N50,000.00 for travelling and other expenses totaling N50,000.00 and claims same from the Defendant. Where of (sic) the plaintiff claims N450,000 special damages, N100,000.00 general damages plus substantial costs.

Dated the 24th October 2003.”

Learned counsel for the Respondent before the trial court having disclosed that the case was for trial de novo, further informed the trial court that the Respondent denied the Appellant’s claim and that the Respondent has counter-claimed because of this.

In the proof of his case before the trial court the Plaintiff (now Appellant), called four witnesses and also testified in his own behalf.

The Defendant (now Respondent) did not testify in his own behalf but called one witness in the proof of his case before the trial court.

Having stated in its judgment to the effect that not all persons are competent and compellable witnesses under Shariah, the trial court decided to attach no weight to the evidence of the Plaintiff (i.e. Appellant) and PW 2. In this regard, the trial court specifically said that a plaintiff cannot be a witness for himself under Shariah and also that in Shariah a non-Muslim cannot give evidence in a case involving Muslims. Dwelling on the evidence of other witnesses in the case and Exhibits, particularly Exhibit C – which is a letter of Undertaking signed by the Plaintiff and witnessed by DW1 – Suleman Abduliah, the trial court said thus at pages 34 – 35 of the Record: –

” Exhibit C which is the letter of undertaking which was signed by the plaintiff and witness (sic) by Suleman Abduliah D.W. 1. might be of great help to this court, if counsel to the plaintiff ascertain (sic) the handwriting of the plaintiff before this court as the defendant allege that the plaintiff wrote it voluntary (sic) while plaintiff refuses (sic) this but only sign (sic) it under duress, crying. This court is in doubt as to who write (sic) Exhibit C And (sic) there is no evidence besides, that of the plaintiff that he sign (sic) the Exhibit under duress. This court therefore find (sic) it difficult to reach a conclusion as to whether the plaintiff voluntarily submitted his vehicle to the defendant or not. But there is no doubt that by the evidence before this court, the plaintiff used his vehicle for commercial purpose. As in this country, the private vehicle (sic) are used as commercial and makes (sic) as kabu-kabu in some part (sic) of this country. The plaintiffs case count (sic) on this Exhibit c. Having consider (sic) the earlier evidence before me, I have ordered for the immediate release of the vehicle of the plaintiff to him. Also considering the relationship of the parties, this court has given the plaintiff, looking at his condition to offset the balance of the Defendant, the sum of N189,185.00 within five months. He should be paying installmental (sic) at the end of every month staring (sic) from the end of this month March 2005.”

The Plaintiff (now Appellant) being aggrieved with the judgment of the trial court appealed to the lower court by a Notice of Appeal dated 2nd March, 2005 and filed on 4/3/2005. Three further grounds of appeal were filed pursuant to leave in that regard granted by the lower court on 24th April, 2006. (See pages 36; 42 – 43 and 40 – 41 respectively of the Record).

At the hearing of the appeal before the lower court on 24/4/2006, Femi Fajemirokun, Appellant’s counsel re-numbered the original grounds of appeal as grounds 4 and 5; while the three further grounds of appeal were renumbered as grounds 1, 2 and 3 respectively. He thereafter argued only grounds 1 and 2 of the appeal as renumbered and at the conclusion of his submissions before the lower court; he expressly stated that he was abandoning grounds 3, 4 and 5 of the grounds of appeal.

Before the lower court, one Benjamin Attah appeared for the Respondent. He replied to the submissions of learned counsel for the Appellant on 25/4/2006.

For this purpose, learned counsel formulated and argued two Issues. The issues are: –