Muhammadu Dan Ige & Anor. V. Umaru Dobi (1997)

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MUNTAKA-COOMASSIE, J,C.A.

This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal herein referred to as court below. The plaintiff, Umaru Dobi, herein respondent, sued the defendant Mohammed Dan-Ige, herein the appellant. The claim of the plaintiff at the Upper Area Court II Birnin Kebbi now called trial court was over the issue of two farms which he allegedly inherited from his late father Abubakar- which farms are still in the possession of the appellant who alleged that he bought the two farms from the respondent’s brother, Umaru, who is now deceased. He was not aware of the sale.

This is actually a transferred case from the Inspectorate Division of the State judiciary. The defendants, now appellant, all along were of the view that the farms the subject matter of this dispute belonged to his father who bought same from Dmaru Bakatara the deceased brother of the respondent.

The plaintiff/respondent was allowed by the trial court to call his witnesses to prove his claim which he did. The appellant, at the close for the case of the respondent, also called witnesses to prove that the land in dispute belonged to his father by way of a sale between his father and the respondent’s brother both now deceased. After ‘izhar the trial court found in favour of the respondent. The appellant being dissatisfied with the above decision appealed to the Sharia Court of Appeal Birnin Kebbi.

In the course of entertaining the appeal at a stage both the appellant and his counsel failed to appear in court and the appeal was struck out and all previous orders made by the court below were accordingly vacated.

The decision of the trial court in favour of the respondent was then restored and affirmed. The appellant then appealed to this court and filed a notice of appeal containing the following grounds as grounds of appeal;

a. The decision of the lower courts (Sharia Court of Appeal inclusive) is unjustifiable and unwarranted having regard to the weight of evidence.

b. That the Upper Area Court II is biased, for it overruled the decision of the Area Court Ambursa which affirmed the farms in dispute to us on the grounds of tenancy (hauzi) for over 40 years.

c. The Upper Area Court B/Kebbi erroneously administered an oath to the respondent whereas we have presented our witnesses whose evidence has not been discredited.

d. The Sharia Court of Appeal erred in law by striking out our appeal whereas it reached the stage of judgment.

At the onset, it has to be clear that both parties are appearing before this court in person. They voluntarily refused to engage the services of any counsel when that opportunity was offered to them by this court. This explains why they could not file any briefs when this court ordered same to be filed. On the hearing date both parties informed the court that they are relying solely on their respective cases as reflected in the records of proceedings of the Upper Area Court Birnin Kebbi herein called trial court and that of the court below.

Considering the nature of this appeal, the position of the parties and the prevailing law, I think it would not be out of place if this court formulates issue or issues for the parties based on the grounds filed by the appellant thus:

1. Whether the trial court was right in treating the case transferred to it by the Inspectorate Division as first instance case?
2. Whether the trial court properly applied the correct Islamic law and followed strict Islamic law procedure?
3. Whether the court below was right in striking out the appeal before it and affirming the decision of the trial court

On the first issue formulated by this court it is settled that Upper Area Courts in this country have dual powers. They are both appellate and first instance courts. In other words, they wear two hats, one is that they can hear a case by virtue of their powers to hear cases in their original jurisdiction. Second, of course, they can entertain a matter in their appellate capacity. The matter was before them on directive by the Inspectorate Division of the State judiciary. There is no specific instruction to the trial court to hear the matter as an appeal.

It is ridiculous an appeal from where. It cannot be from the Ambursa Area Court as insinuated by the appellant. Where is the ruling or judgment of that Ambursa Area Court? Who is the appellant therein? Can the State Inspectorate Division possibly be the appellant? It is not feasible. In any case where are the grounds of appeal? I think the Upper Area Court, now trial court, was perfectly right in treating the matter as first instance case. Issue number one is therefore answered in affirmative – section 50(1) (2) of the Area Court Edict of 1967.