Hajiya Fanta Kur & Ors. V. Ali Kindil Fannami (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the Borno State High Court in its appellate jurisdiction, delivered on 15th day of December, 2005, affirming the decision of their trial Upper Area Court 1, Borno.

On the 15th of May, 2001, the complainant Ali Kindil Fannami, now the respondent; lodged a complaint before the Borno Upper Area Court 1, against the defendants Hajja Fanta Kur, Bulama Kaka and Alhaji Modibbo who are now the appellants, praying the trial court to set aside the sale of the house belonging to Hajja Fanta, to Alhaji Modibbo. He alleged that he had been living in the house for 14 years and was paying rent. Hajja Fanta (1st appellant) requested him to stay in it and promised to sell it to him any time she evinced an intention of selling the house. He was therefore taken aback when the 2nd appellant asked him to vacate the house as it had been sold to the 3rd appellant. Hence, his complaint to set aside the sale.

Although, the 1st appellant initially denied it, she later admitted that she had indeed promised to sell the house to the respondent whenever she wanted to. She denied that she had exchanged any house with the 3rd appellant. She offered the house to the respondent to purchase at the cost of N150,000. On that basis, the trial Upper Area Court gave judgment to the respondent and confirmed the sale of the house to him at the cost of N150,000.

The appellants being dissatisfied with the judgment, appealed to the High Court in Maiduguri on 5 grounds of appeal. On the 15/12/2005, the High Court delivered its judgment, dismissed the appeal and affirmed the decision of the trial court.

Being aggrieved, the appellants have appealed against that judgment on two grounds of appeal vide their Notice and Grounds of Appeal filed on the 16/12/2005. The parties have filed their respective briefs of argument.

In the Appellant’s brief of argument filed on the 9/6/2006, settled by his counsel M. E. Oru, one issue was identified for determination. It is:-

Whether or not under Islamic Law, there was judicial proof before the lower Court to enable the Respondent to be entitled to judgment.

The Respondent’s brief was filed on the 28/9/2006 but deemed filed with leave of court, on the 26/2/2007. In it, H.M. Dlakwa of counsel to the respondent, identified one issue for determination to be:-

Whether or not admission is known and accepted as a means of proof under Islamic law and procedure?

In my view, the single issue identified each by counsel to the parties fall a bit short, taking into consideration, the grounds of appeal and the particulars. I think the more appropriate issue for determination is whether or not there was admission of the complaint before the trial court amounting to judicial proof in Islamic law.

The submission of counsel for the appellant on this, is that under Islamic Law, the evidence required in. proof of a claim is to be furnished through the testimonies of two unimpeachable witnesses, or one male and two or more female unimpeachable witnesses or one male and two females or more witnesses with claimant’s oath in either case. Reliance was placed on JATAU VS MAILAFIYA (1998) 1 SCNJ 48 at 57; BABA VS ARUWA (1986) 5 NWLR (Pt. 44) 774 at 786; ABDULLAHI MAFOLUKU VS USMAN ALAMU (1985) SLRN 105; MINTAR VS KORI (1989) 1 NWLR (Pt. 100) 718; MANU VS. MOHAMMED (1997) 11 NWLR (Pt.528) 323; BELI VS. UMAR (2005) ALL FWLR (Pt. 290) 1520 – 1528 -1530. RUXTON ON MALIKI LAW Para 1563, page 300; and IHKAMUL AHKAM, Short Commentary on TUHFATUL HUKKAM page 34.

Counsel contended that the record of proceeding did not show that the parties called any witnesses to testify or ordered by the court to be called by the parties. He placed reliance on JATAU VS, MAILAFIYA (supra) at 57, to submit that the statements of the Respondent and the Appellant at the trial Upper Area Court are not regarded as evidence, under Islamic law. Following this, he argued, there was no legal judicial proof before the trial court and the lower court was in error, when it affirmed the decision bf the trial court. This had occasioned a miscarriage of justice, he argued.

On admission, counsel submitted that unlike the common law, Islamic law does not recognize ‘admission’ as a means of proof and that it was erroneous for the lower court, to hold that the admission of the 1st appellant in her statement, amounted to an oath. Counsel urged us to allow the appeal, dismiss the Respondent’s claim or in the alternative, order a retrial before another competent court.