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.

As stated earlier on that the trial court entered judgment in favour of the appellant who was the defendant before the court. The reasons for the decision are as follows:

1. The appellant was found to be in possession of the farms land in dispute 30 years after the death of the respondent’s father;
2. The evidence pointed to the fact that the respondent, Mrs. Aisa Bakoshi, was in the same town with the appellant for 12 years while the latter was in firm possession of the land in dispute without taking any steps to reclaim her farms from appellant. During the said 12 years period there was no indication that she was married.
3. The Judge offered Yaminul-Qala’s i.e. oath of judgment while the appellant subscribed to that oath based on the above findings and reason the trial court declared the farms land to be the properties of the appellant.

The respondent herein un-successfully appealed to the Upper Area Court Bagudo where the decision of the Trial Area Court Zagga were affirmed and the appeal dismissed.

Dissatisfied with the decisions of the Upper Area Court the respondent herein has further appealed to the Kebbi State Sharia Court of Appeal on three grounds of appeal thus:-

1. That the decision of the Upper Area Court Bagudo was unjustified as the decision of that court was reached without investigation.
2. The decision of the trial Area Court is contrary to the principles of Islamic law.
3. The appellant, herein stated that she testified to the effect her father entrusted the farm land to the respondent together with Ummaru Kalla. But now Hakimi Boyi Ummaru is alleging that he inherited these farms and the trial court just administered oath on him without taking into consideration her evidence and the testimonies of her witnesses.

In a very dramatice manner, the Sharia Court of Appeal Kebbi State hereinafter referred to as court below, announced that the appeal was allowed and confirmed the farms land in dispute to the respondent and set aside the decisions of both trial and Upper Area Court. It added that the farms in dispute belong to her late father because of the testimonies of her witnesses which established that her deceased father cleared the farms when they were forest and “bona vacantio” Bubakar, which fact further rendered the purported gift to the appellant a nullity. This, in a nutshell was the judgment of the court below.

On further appeal to this court, the appellants filed a Notice of Appeal containing the following grounds:-

(a) The Sharia Court of Appeal, Birnin Kebbi erred in law and on facts by allowing the appeal in favour of the appellant before it (now respondent) in breach of the principles of Islamic law.

(b) The Shari a Court of Appeal, Birnin Kebbi fail (sic) to take cognizance of the duration of the farms land under my title.

(c) The Sharia Court of Appeal, Birnin Kebbi fail {sic) to take cognizance of the testimonies of the reliable witnesses I presented at the lower court at its decision (sic).

The appellant herein then urged us to allow this appeal, set aside the decision of the court below and to restore the decision of the Upper Area Court Bagudo affirming the decision of the trial court.

The appellant was represented by a counsel in the person of Aliyu M. Hassan Esq. The respondent did not engage the services of any counsel and remained undefended. She therefore appears in person.

On 14th November, 1999 the appellant through his counsel filed a motion on Notice which was granted and subsequently the appellants brief was filed by the order of this court. Additional Grounds of appeal was then filed. It reads thus:

Additional grounds of appeal.

1. The Sharia Court of Appeal, Birnin Kebbi erred in law in reversing the decision of the lower courts which were based on Hauzi (prescription) even and when the respondent and her witnesses have admitted facts giving rise to application of Hauzi.

Particulars of error

(a) The appellant has been enjoying an undisturbed possession of the farmland in dispute for 30 years before the commencement of this action at the trial court.

(b) The respondent admitted and her witnesses testified to the fact that the appellant has been in possession of the farmland in dispute for 30 years.

(c) The respondent further admitted that she has been in the locality of where the farmland in dispute was situated for 12 years without raising any objection to the possession of the appellant.

2. The Sharia Court of Appeal erred in law when it acted upon the respondent’s claim and testimony of her witnesses i.e. P.W.5, 1 and 2 when the witnesses have no locus standi to so testify under Islamic law.

Particulars of error

(a) The record before the Sharia Court reveals fact leading to the application of Hauzi.

(b) Since Hauzi is applicable to this particular case the plaintiffs/respondent’s claim ought not to be called less acting upon their testimony.

3. The Sharia Court of Appeal erred in law when it reversed the decision of the lower courts without evaluating the record of the lower court before it and without advancing any cogent reason for its decision.

Particulars of error

(a) The Sharia Court did not analyse the judgment of the lower courts but only reversed the decisions of the lower courts summarily.

(b) The Sharia Court failed to state reasons for its decision.

The appellant then submitted three issues for the determination of the appeal as follows:

1. Whether the Sharia Court of Appeal Birnin Kebbi was correct in reversing the decision of the trial court and Upper Area Court that were based on Hauzi (Prescription) without any reason even when the respondent admitted the fact of Hauzi and her witnesses testified in the same vein.
2. Whether the Sharia Court of Appeal was right in accepting the testimony of respondent witnesses called at the lower courts when they have no locus standi.
3. Whether the decision of the Sharia Court of Appeal could stand when it neither states the reasons for its decision nor did it evaluate the record of the lower courts before it.

At the hearing of the matter the appeal was taken as argued. This court considered the issues together. Since the respondent could not file a respondent’s brief, he indicated his desire to rely on his case as presented at all the trial and lower courts and urge this court to dismiss the appeal and affirm the judgment of the lower court.

Considering the issue as formulated by the appellants counsel and the stance taken by the respondent I wish to state thus:

“It is trite in Islamic Law that where a person has been in peaceful enjoyment or possession of land without challenge for 10 years he thereby acquires a title by Hauzi (Prescription) against any person who claims to be the true or original owner of such land and who stood by without taking any action to reclaim his land during that period. Put more clearly, the law is that a person who sees somebody in possession of his or her property and claiming and using the same as his own over a long period without any objection from (the true owner) loses his ownership and that other person in possession becomes the owner – Bahja Vol. 11 p. 256; Mayyara Vol 11, 3 p. 236, Ruxton, Summary Translation of Mukhtasar Khalil P. 309 paragraph 1698 Baba v. Aruwa (1986) 5 NWLR (Pt. 44) 774/776 and Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1 at 2.”

The above statement of Islamic Law is of general nature. It permits some exceptions. Among the common reasons where generally a person will stand by and watching somebody, who is not a stranger, using his own property as his own (Tasarruful Mulk) are many. Sometimes it is blood relationship, in law or marriage or fear of executive persecution etc. The position of’ the law is therefore was succinctly put thus:-

Where a person has been in an undisturbed possession of real property for 10 years without opposition from the true owner, he acquires ownership. However, this principle of (Hauzi) (Prescription) under Islamic law permits of exceptions.

These are:-

(a) cogent reasons are adduced for not complaining in time, for example blood relationship or fear of harm from authority.

(b) The claimant is a minor

(c) The person in possession was put in possession by the claimant either as a free or paying tenant;

(d) The person in possession is put in possession as a trustee;

(e) The claimant is a relative, or a partner or co-proprietor to the person in possession;

(f) In the case of a house the possessor is in permissive occupancy – see Hada v. Mahunfashi supra p. 20 paragraph C – F.

Again, where a claimant has not been in the town or village where the land is situated and or where the claimant is not residing with the person in possession or where the claimant has travelled out or he was in a state of in communicado, then, the principles of Hauzi cannot be used to deprive him or her of his or her property. It is also accepted by Islamic jurists in the famous texts that where there is evidence that the claimant is a female and has been in marriage bounds throughout the period of Hauzi, and also that her husband would not allow her to come out of the matrimonial home to pursue her case or he will not allow his wife to sponsor or appoint a Wakili i.e. representative to challenge the person in possession, then if later she comes out and claims the ownership of such land, her claim will be entertained notwithstanding that the person claiming Hauzi has been in undisturbed possession of the land for such along period. See Ihkanul Ahkam. Short commentary on Tuhfatul refers to the book of Hashiyaid Dusuki Vol. 4 p. 235.

In the appeal before us there is evidence that the appellant has been on the land for about 30 years. Both the respondent and her mother were present but none raised an eye brow or challenged the appellant who was working on the said farm lands undisturbed. That being the case, and in view of the fact that the respondent personally has stood by at least for 12 years seeing the appellant making use of the farms in dispute as his own and did not take any steps to reclaim her property. Either period has caught up with her. The evidence of the witnesses is so clear on issue that even the respondent could not deny the fact that the appellant has been in possession of the farms land in dispute for that long.

It is correct that the appellant who was found in possession of the land in dispute at least got one witness in his favour. Because possession in Islamic Law is regarded as having one witness. In law he should be asked to take a complimentary oath to have judgment in his favour. In other words, where the witnesses of the parties are equally balanced, or on the same rooting or even the same nature, then the judge will offer the oath of affirmation of his claim to the person in possession – Zoo Yadi. If he subscribes to it there and then judgment would be entered in his favour. If he rejects it or turns it down, the same oath will be offered to the other party and then if the latter takes it, the court will give him judgment. In a situation where both parties refused- Nukul- the property in dispute must be shared equally between them. See Usman v. Kusfa (1997) 1 NWLR (Pt.483) 525/534 per Wali, J.S.C.: Babayo v. Diddi p. 452 at 457 – 458.

It is a well established principle of Islamic Law that he who asserts must prove. And the requirement of proof in Islamic law has been stated times without number. In fact it is fast becoming trite. However I will briefly say that proof in civil matter is completed by:

(a) evidence of two male un-impeachable witnesses; or

(b) evidence of one male witness and two or more female of unimpeachable witnesses; or

(c) evidence of one male or two female or more witnesses with claimants oath in either case.

See Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) p. 1 at 17. It is not established that the respondent has proved the fact that her father was the owner of the land in dispute. There is no evidence which conclusively proved that it was her late father who cleared the land when it was bona vacantia. If there is cogent and credible evidence at the trial court that the father of the respondent, herein, cleared or improved the farm lands when it was a forest, then the court would have ruled that her late father owned it and no person or authority can take it from him. Therefore if Hakimi Babukar seized same from him his act is ghasb- or piracy. See the case of Ishaku v. Hadejia Native Authority (1961-1989) Vol. 1 S.L.R.N. and the unreported case of this court in Dodori v. Ambursa CA/K/188/S/1933 delivered on 30/6/94. See also Balarabe v. Abdu (1997) 10 NWLR (Pt. 524) p. 299/306 per Okunola, J.C.A.

If it is a case of having two contending claims where it was proved that the respondent proved that she is the true owner and the appellant maintained that he has been on the land by virtue of Hauzi simpliciter then I would have held that ownership is stronger than ownership by Hauzi and the judgment could have been entered in favour of the respondent. The evidence or totality of evidence does not show that the position of the respondent is stronger compared with that of the appellant. The court below has not come up with any decision. The reasons were not clearly stated in so many words. The defence of Hauzi by the appellant must therefore subsist. The position now remains as before, namely that where a person has been in an undisturbed possession of a landed property, the person in possession acquires title by prescription popularly known as Hauzi. I refer to Dandume v. Adamu (1997) 10 NWLR (Pt. 525) 452 at 457-458.

In the appeal at hand none of the exceptions to the principles of Hauzi is applicable. The appellant must be held to have acquired title by Hauzi (prescription). Moreover going by the totality of the evidence in this particular case it was perfectly justified to have asked the appellant to subscribe to the Yaminul-Qalaa. The findings and decision of the Upper Area Court Bagudo affirming the judgment of Area Court Zagga are therefore un-assailable.

I will not, in this case, order the appellant to subscribe to an oath of rebuttal since right of Hauzi is applicable. Kada v. Yawa (1998) 10 NWLR (Pt.569) 196; (1998) 7 SCNJ p. 171 at 176 per Mohammed, J.S.C. See also Ihkamul Ahkam short ommentary on Tuhfatul-Hukkam p. 622. It is also not a proper situation where the appellant will be asked to take the oath of judgment because apart from undisputed firm possession of the property he was allowed to call credible witnesses in proof of his case. The decision of the court below cannot be sustained. The appeal therefore has merits. It is allowed. The judgment of the Kebbi State Sharia Court of Appeal is hereby set aside. In its place the judgment of the Upper Area Court Bagudo is restored and affirmed. The total costs of Two Thousand Naira (N2,000.00) is awarded to the appellant against the respondent.

Appeal allowed.

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Other Citations: (1999)LCN/0613(CA)