Saini Danjuwa V. Hajja Baaji (2000)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE J.C.A.
This appeal is sequel to an action instituted in the civil Area Court Gombe, Gombe State of Nigeria, whereby the Appellant Malian Saini Danjuwa, claimed a land in the possession of a lady, Hajja Ba’aji. He claimed that the land in dispute was subject of a litigation between him and one Buba Yero. The Defendant, Hajja Ba’aji denied the claim and explained that her in-law Malian Ibrahim bought the land for her from Mallam Muhammadu Badara who was in possession of same for over seventeen years. The claim of the Plaintiff was given to the defendant by the Civil Area Court Gombe and the land in dispute was given to the defendant – Hajja Ba’aji. On appeal to the Upper Area Court Gombe, the decision of the lower Court was affirmed and appeal dismissed under section 59 (1) (a) of the Area Court Edict. The Plaintiff unsuccessfully further appealed to Gombe State Sharia Court of Appeal. That Court decided that the Plaintiff has slept on his right for over 17 years and the principles of prescription in Islamic law (HAUZI) has caught up with him. The decisions of both Upper Area Court and Civil Area Courts have been affirmed and his appeal dismissed.
Dissatisfied with the judgment of the Gombe State Sharia Court of Appeal, the Plaintiff, now Appellant appealed to this Court and filed Notice of Appeal containing three grounds of appeal as follows:-
Ground One
The learned Kadis of the Sharia Court of Appeal erred in law when they held that the Upper Area Court was right to hold that the Respondent is in long possession hence it is not for the Upper court to apply Hauzi.
Particulars of Error
(1) There is nothing to justify the above findings of long possession of the land by the Respondent.
(2) There was sufficient evidence that the Respondent came into the land in 1990.
(3) There was sufficient and adequate evidence that the Appellant has been in long possession of the land.
(4) The Upper Area Court No.1 Gombe grossly misdirected itself and in law by introducing Hauzi.
Ground Two
That trial Court misdirected itself in fact in law by denying the appellant/plaintiff from bringing witnesses.
Particulars of Error
(1) The Appellant was denied rights to produce witnesses to support his claim.
(2) The Court called the respondent to bring his witnesses.
(3) The trial Court decided the matter based on the testimonies of the respondent witnesses.
(4) The Appellant was denied right to cross examine the respondent witness.
Ground Three
The trial Court misdirected itself in law and in fact when suo motu went to locus in quo without any of the parties.
Particular of Error
(1) The trial Court visited the locus in quo alone without neither party.
(2) None of the parties apply but the court should go to the locus in quo.
Henceforth, the Civil Area Court Gombe will be referred to as trial Area Court while the Upper Area Court Gombe will be called simply as Upper Area Court, and the Sharia court of Appeal Gombe is now the trial Court below while the defendant there is now the respondent. It is to be noted that both parties are appearing for themselves. None of the parties was willing to engage the services of legal practitioner. No briefs therefore have been filed. Both parties, before us, relied and adopted their respective cases as contained in the records of proceedings of the three lower Courts.
That being the case, I am of the firm view that it may not be out of place if this court formulated an issue or issues for the determination of this appeal under the relevant rules of this Court and the prevailing law. Based on the facts of this case and the records of proceeding before us, I frame the following issues:
(1) Whether the Court below was right in upholding the decisions of both Upper Court and trial Court knowing fully well that the procedure adopted by the trial Court was contrary to Islamic law procedure.
(2) Whether the Court below could be justified in assuming jurisdiction on matters which are outside the provisions of section 242 of the 1979 Constitution of the Federal Republic of Nigeria.
The clear principle of Islamic Law cannot by now be obscured. The onus is on the claimant to prove his case. The Defendant, after denial, shall not say or do any thing. He is supposed to wait for the Plaintiff to call witnesses to establish his claim. If the Plaintiff failed to prove his case in accordance with Islamic law principle; then his case stands dismissed. In some situation, the Defendant will be asked to subscribe to an oath of denial. The author of Tuhfatul Hukkam has tacitly and generally too put it thus:-
The Plaintiff is required to bring witnesses to testify for him and the Defendant is required to take an oath in the event of failure of the plaintiff to call witnesses.” See also Ashalul Madarik Fi Irshadissalik Vol. III page 238.
It is the duty of the presiding judge in all cases to determine, at the onset, who is the plaintiff. Once this is discovered then the Judge will order him to call the required witnesses to prove his case. In the appeal at hand, the Judge did not say in so many words who is the plaintiff. The record of proceedings showed that Saini Danjuwa was the plaintiff and Hajja Baaji was the Defendant. The Court did not state that Hajja Baaji was turned into plaintiff. The plaintiff was then expected to call his witnesses in proof of his claim. It was a surprise to us to see that the defendant was asked to call witnesses and the plaintiff was not even asked to respond or cross examine the witnesses called by the Defendant. This is clearly contrary to Islamic principles. See Hada v. Malumjashi (1993) 7 NWLR (Pt.313) 1 at p.17 per Wali, J.S.C. See also Ruxton on Malik Law p.281-282; Also – Usman v. Kureem (1995) 2 NWLR (Pt.379) p537 at 548 per Wali, J.S.C.
The procedure adopted by the trial Court and acceptable by the Upper Area Court and the court below is clearly and fundamentally wrong capable of making the proceedings a nullity and I so hold.
I cannot understand how the trial Court first ordered the Defendant (and not the plaintiff) to prove his case. Hajja Baaji never took the matter to the Court. The facts, as stated in the Record of Proceedings, do not show that Hajja Baaji could be a plaintiff. After the statement of the claimant the Defendant (Hajj Baaji) merely denied the claim. Instead of the Judge to order the claimant to adduce evidence in proof of his claim by calling the required witnesses that Court directed the Defendant to call witnesses which was done by the Defendant in compliance with the Court’s order, this is wrong. The Court below therefore cannot, with due respect, be right in upholding the decision of Upper Area court which in turn affirmed the wrong decision of the trial Court.
The decision of the trial Court was clearly perverse and the subsequent judgments of the Upper Area Court and Sharia Court of Appeal Gombe State are similarly wrong. The 1st issue is therefore negatively answered.
On the second and the last issue the claim of the plaintiff has nothing to do with the Islamic personal Law as provided by section 242(2) (a-c) of the 1979 Constitution and section 262 (1) (2) (a-c) of 1979 Constitution.
The claim of the plaintiff at the trial Court does not concern Islamic personal Law therefore the jurisdiction of the Sharia Court of Appeal will be ousted. On p2 of the Record Mallam Saini stated thus:-
“I am suing Hajja to vacate my piece of land.” Court to Defendant – Hajja do you hear his claim?
Answer: Hajja: I heard his claim, but the land belong to Nabadara and my in-law bought it for me from him.
Throughout the printed records there was no indication that the parties are Moslems. It was held that mere names cannot be relied upon to determine the religion of the parties. The subject matter here cannot be said to be a question of Islamic Law regarding succession. It does not concern an inheritable land. The parties are not in any way related. There was therefore no question of inheritance between themselves.
It has to be closely noted that the trial court may have jurisdiction to try a case but Sharia court of appeal may not have jurisdiction to hear the appeal especially where the appeal from the trial Area Court is not an Islamic personal matter. But where a matter involves Islamic personal law in a trial court, then an appeal from the decision of that court on the matter lies to the Sharia court of appeal of that State. See the case of Usman v. Kareem supra at pp 551-552. Since the claims of the plaintiff at the trial court that determines the jurisdiction of the Shari a court of Appeal this case was supposed to go on appeal to the High Court of Gombe State and not the Sharia Court of Appeal of that State.
I consider the issue of jurisdiction as fundamental and I have inherent power to raise same suo motu it is my duty therefore to hold that the Sharia Court of Appeal, Gombe State here in Court below has no jurisdiction to entertain the appeal before it. Proceedings conducted, it goes without saying. Without jurisdiction were null and void.- Funduck Eng. Ltd. v. McArthur (1995) 4 NWLR (PI.392) 640 SC.
Finally this appeal succeeds it is hereby allowed. The judgment and orders of the court below (Gombe State Sharia Court of Appeal) are hereby set aside. The matter sent back to the Chief Judge of Gombe State far re-assignment to the competent High Court. Costs shall be in the cause.
Appeal is hereby allowed.
Other Citations: (2000)LCN/0711(CA)