Ibrahim Gambo V. Auwalu Ali Doka (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal emanating from the appellate Section of the High Court of Justice Kano State (the lower Court) delivered on the 25th of September, 2013 affirming the decision of the Upper Sharia Court (the trial Court) delivered on the 30th of March, 2012. The facts of the case are that the respondent who was the plaintiff at the trial Court claimed ownership of the parcel of land in dispute on the ground that his father gave it to the father of the appellant (defendant at the trial Court), some fifty (50) years ago on loan.

However, the appellant claimed that the said parcel of land had been in their possession for more than 50 years, therefore, the doctrine of HAUZI (prescription) applied conferring title to the parcel of land on him. The litigation over the parcel of land was commenced before the Kano Sharia Court. The Kano Sharia Court delivered judgment in favour of the appellant. On appeal to the upper Sharia Court, Kofar Kudu, Kano city, the judgment of the Kano Sharia Court was affirmed. On further appeal to the High Court that Court allowed the appeal and the

judgments of the two lower Courts were set aside. The High Court ordered for a retrial before the Bompai upper Sharia Court, Kano. The Bompai upper Sharia Court after hearing of the case entered judgment in favour of the respondent. The appellant was dissatisfied with the judgment of the Upper Sharia Court, he therefore appealed to the High Court. The High Court upheld the decision of the Bompai Upper Sharia Court. The appellant did not agree with that judgment, hence his appeal to this Court, vide a Notice and grounds of appeal filed on the 16th of July, 2015 on eight (8) grounds of appeal. The grounds of appeal, without their particulars are as follows:

“Ground 1

The lower appellate Court erred in law which occasioned a substantial miscarriage of justice by affirming the decision of the trial Sharia Court, which denied the appellant fair hearing.

Ground 2

The lower appellate Court erred in law which occasioned a substantial miscarriage of justice by affirming the decision of the

trial Sharia Court for calling the appellant to take an oath after it is convinced hundred percent that the respondent is a victim of hauzy (statute barred) that is to say the appellant is entitled to the land for being in possession of it for more than 50 years in presence of the respondent and without any challenge and no reason adduced to exonerate the respondent from that liability.

Ground 3

The lower appellate Court erred in law which occasioned a substantial miscarriage of justice by affirming the decision of lower trial Sharia Court, when it neglected to admit oath on the respondent when it adjudged that the respondent must take an oath before he gets the judgment, as the appellant did not take it that is to my the oath reverses to the respondent.

Ground 4

The lower appellate Court erred in law which occasioned substantial miscarriage of justice, holding that the appellant did not file a counter affidavit, when same had been dully filed and served on both the respondent

and the Court.