Umma & Anor. V. Alhaji Iliya Bafullace (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Katsina State Sharia Court of Appeal holden at Funtua delivered in Appeal No. K73/SCA/FT/136/91 on 18/2/92 whereby the appeal from the Upper Area Court was dismissed.

The facts of this case briefly put were as follows:-

“The appellants herein, as plaintiffs, sued M. Yusufu their Uncle and the respondent as defendants at the Dandume Area Court claiming the farmland which their deceased father left in the possession of M. Yusufu but which they saw in the possession of the respondent. The 1st defendant admitted that the farmland belonged to the deceased father of the appellants but claimed that the appellants gave him the farmland which he sold to the respondent at the cost of N180.00 but collected only N80.00.

The appellants called 2 witnesses, Yarbaba their stepmother and one Alhaji Ya’u. After hearing the evidence of the 2 witnesses, the trial area court gave judgment in favour of the appellants.

Dissatisfied with the judgment of trial Area Court, 2nd defendant/respondent appealed to the Upper Area Court Funtua. After listening to the parties and having gone through the records of proceedings, the Upper Area Court allowed the respondent to call a witness and re-called P.W.2 who acted as D.W.2 and who gave evidence in contradiction of his earlier evidence at the trial court. At the end of the day the Upper Area Court offered oath to the appellants which they declined to take. When the appellants declined to take the oath the Upper Area Court set aside the judgment of the trial Area Court and gave judgment for the respondent.

Dissatisfied with the judgment of the Upper Area Court the appellants appealed to the Sharia Court of Appeal. After listening to the parties and going through the records, the Sharia Court of Appeal affirmed the judgment of the Upper Area Court and dismissed tile appeal. Dissatisfied with this judgment of the Sharia Court of Appeal, the appellants have appealed to this court on the omnibus ground which was with the leave of this court granted on 4/6/97, substituted with three grounds. From the three grounds of appeal, the appellants have formulated three issues for determination in this appeal, viz:

1. Whether the procedure adopted by the Upper Area Court sitting on appeal was right in law?
2. Whether taking all the circumstances of the suit into consideration, a valid gift of the farmland can be said to have been made.
3. Whether there is a valid sale of the farmland in dispute to the respondent.

The respondent also formulated three issues which though couched in a different style and language boil down to the above three issues raised by the appellants in the appellants’ brief. Both parties have filed their respective briefs. Both learned counsel to the parties adopted these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points. Learned counsel to the appellants Mr. Garba Shehu, after adopting the appellants’ brief deemed filed on 4/6/96 submitted on issue 1, that it was not shown that the evidence was not available at the time evidence was given at the trial area court. Learned counsel urged the court to allow the appeal. By way of reply, learned counsel to the respondent Mr. A.D. Garba after adopting to the respondent’s brief deemed filed on 17/6/97 urged the court to dismiss the appeal.

I have considered the submissions of both learned counsel to the parties on the issues raised for determination vis-a-vis the records and the prevailing law. It is intended to give my views on the points raised and canvassed by counsel to both parties. From the submissions of both learned counsel to the parties made orally as well as in their briefs, it appears that their arguments boil down to the three basic issues formulated supra by the appellants. I shall consider the issues as set out by the appellants.

Issue I which I regard as the basic issue in this appeal deals with whether the procedure adopted by the Upper Area Court on appeal in entering judgment in favour of the respondent and confirmed by the Sharia Court of Appeal (hereinafter referred to as the SCA) was in accordance with Islamic Law? On this issue learned counsel to the appellants by way of summary at page 5 of the appellants’ brief submitted that the procedure adopted by the Upper Area Court (hereinafter referred to as the UAC) sitting on appeal is contrary to the rules of procedure and natural justice. Learned counsel further submitted that the Upper Area Court ought not to have allowed the calling of new or additional evidence as the circumstances of the case do not warrant same. By way of reply, learned counsel to the respondent by way of summary at page 8 of the respondent’s brief on Issue I submitted that the UAC adopted a proper procedure in calling additional witnesses since the issue is not clearly comprehended and proved at the trial Area Court. Learned Counsel further submitted that on the finding from the additional evidence that the appellants denied being given part of the proceeds of the sale as given by the witnesses recalled, the court offered oath to the appellants which they declined to take, the UAC was right in entering judgment in favour of the respondent. Learned Counsel also contended that this procedure adopted by the UAC and confirmed by the SCA was in accord with Islamic Law Principles.

I have considered the submissions of both learned counsel to the parties on this basic issue vis-a-vis the records and the prevailing law. Their arguments boil down to:

“1. Whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W.2.

2. Whether the Upper Area Court was right in offering oath to the appellants on their denial with respect to being given part of the proceeds of the sale.
3. Whether the above procedure adopted by the Upper Area Court confirmed by the Sharia Court of Appeal was in line with Islamic Law?

On the 1st sub issue as to whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W. 2, I have considered the submissions and both learned counsel to the parties vis-a-vis the records and the prevailing law. This sub issue had been resolved by S.5(a)2 of the Kaduna Area Court Edict as amended applicable in Katsina State which provides thus:-

“In the exercise of its power under this section a court may hear such additional evidence as it considers necessary for the just disposal of the case.”