Hakimi Boyi Ummaru V. Aisa Bakoshi (1999)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

This appeal is yet another land mark in appreciating the extent of the principles of Hauzi (prescription) in Islamic law. It also discusses the issue of offering of Oath of judgment Yaminul-Qallaa to the person in possession on the grounds of Hauzi. The plaintiff, who is now the respondent before this court, instituted an action against the defendant, now appellant, claiming a number of farms land at Tungar Gawo, under the defendants control and possession, 30 years after the death of the respondent’s father Mallam Ummaru. Her father used to work and farm thereon up to the time of his death. The appellant flatly denied the claim and alleged that the farms land belonged initially to Hakimi Bubakar who lent same to the respondent’s father Bakoshi. According to him, after two years of the loan the respondent’s father migrated to Tungm Wanzan village and abandoned the farm land in question. The respondent’s father when leaving for another place did not care to entrust the farms to someone. The appellant further claimed that at that point in time he requested, from Hakimi Bubakar, for the said farms land to be given to him. His request was granted. Hakimi Bubakar gave the appellant the farms in dispute as an outright gift to him.

He again emphasised that the farms land in question were on loan to the respondents father by the Hakimi Bubakar.

After careful consideration of the facts of the case the trial Judge directed that Madam Aisa is the claimant and ordered her to call witnesses, if any, to establish her claim. This is so, because in Sharia once a Judge discovered a proper plaintiff, Muddaee, the law places a burden of proving his claim on him. He or she can discharge the onus put on him by the law by calling witnesses to prove and establish his or her case according to the dictate of Islamic law, I will come to the requirements of the law on proof anon.

It is not a matter of course to say that whoever initiates or institutes an action he becomes a plaintiff and the other party a defendant as obtained in the common law system. The position in Islamic law of procedure is quite unique. It may be possible that ‘A’ appears in court as plaintiff and ‘B’ as defendant. After rudimentary investigations by the trial Judge on the facts of the case ‘B’ the defendant, may become the claimmant/plaintiff and the initial plaintiff ‘A’ may turn the defendant. Mudda ‘a Alaihi, Thae and then, the person who appeared as the defendant may be asked to prove his case as plaintiff. The exercise by the trial Judge is considered the most essential aspect of trial in Islamic law. See p 8 of Ihkanul Ahkam short commentary on Tuhfatul-Hukkani where the learned Author states thus:-

Meaning: “Distinguishing the circumstances and positions of plaintiff and defendant is certainly the pivot (milestone) upon which the substructure or substratum of litigation lies.”

It was also stated in AI-Mayyara Vol. 1 p. 17 that:-

Meaning: “It may happen that the claimant/plaintiff becomes a defendant and the defendant turns a plaintiff.

Honourable Saeed bn Musayyib clearly mentioned that the whole trial depends on comprehending, by the Judge, the nature and characteristics of the parties i.e. who is the plaintiff and who is the defendant. It was also stated on p. 105 of Tabsiratul Hukkam Vol. 1, 1st edition.

Meaning: It has to be known that to appreciate the nature of a litigation revolves around distinguishing and identifying the plaintiff and the defendants. This is the basis of the understanding the legal problems.

Coming back to the appeal at hand, the trial Judge adjudged the respondent, Mrs. Aba Bakoshi, as the plaintiff. In order to prove her case, as such, she called two witnesses who testified to the effect that the farms land in dispute belonged to her late father Mallam Ummaru Bakoshi.

The defendant, Hakimi Bayi Ummaru who is appellant before this court, was allowed to call witnesses to prove his assertion that he owned the farm lands in dispute by way of Hauzi (Prescription) in that he was in possession of the land in dispute for 10 years after the death of the respondent’s father. because Hakimi Bubakar gave him the farms land as an outright gift. He was able to call four witnesses in proof of his contention.

The facts of this appeal, if I may revisit same, reveal that the respondent was claiming that all the farms land belongs to her late father. The same land, she continues, had been in the possession of the appellant since the time of the death of her deceased father 30 years ago. The appellant’s case at the trial court was that the whole farms land belongs to Hakimi Bubakar who allowed the respondent’s father to use same on loan. Subsequently the father of the respondent abandoned the said farms land and left them fallow and migrated to Tungan Wanzam without leaving the said farms in the care of anybody her father subsequently died two months after his migration. The appellant then requested from Hakimi Bubakar the same farms lands which were given to him as a gift inter vivos i.e HIBA. That is the brief facts of the case.

At the end of the trial and after proper Izar by the trial Judge, he found for the appellant. Izar is akin to allocutus in criminal trial. In Islamic law Izar is quite necessary. It has to be done at the end of trial and before judgment is delivered. Failure by any court to do so would vitiate the proceedings and judgment delivered without Izar would be null and void. See Ihkamul-Ahkam p. 21 Hakimi in this context is a district head. He wields tremendous power vis-a-vis land administration.