IBRAHIM SAYYADI v. ALTINE HALI GWANDU
(2018)LCN/12213(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/S/25S/2016
RATIO
ISLAMIC LAW AND PROCEDURE: WHETHER CLAIM WITHOUT CREDIBLE EVIDENCE WILL STAND
“A claim charged to a deceased Muslim’s Estate, under Islamic law, saddles the claimant to produce credible evidence to establish his claim and further to swear to an oath of judgment [Yamina Qada’il] to be entitled to judgment in his favour. Thus, where the claimant of a right from a deceased Muslim’s Estate fails to lead credible evidence in respect of the claim, the claim fails and ought to be dismissed.” PER HUSSEIN MUKHTAR, J.C.A.
ISLAMIC LAW AND PROCEDURE: WHERE THERE IS NO CREDIBLE EVIDENCE
“In view of all the above therefore I hold that in the absence of any credible evidence from the Appellant, the lower Court cannot enter judgment in favour of the Appellant. I place reliance onSAFETI V. SAFETI (Supra) where it was held that: – ‘It is clear from the record that the appellants called two witnesses who were able to establish to the Court the fact that the houses were given to the appellants by their deceased father. None of the respondents was able to successfully impeach the evidence given by their witnesses. The trite position of Islamic law is that a Court of law is bound to act on this type of claim on the evidence adduced by the plaintiff. It is thus prohibited for a judge to deliver his judgment when he has no evidence placed before him through any of the known forms of testimony/admission. See Ihkamul Ahkam pages 13-14.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
IBRAHIM SAYYADI Appellant(s)
AND
ALTINE HALI GWANDU Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the judgment of the Sharia Court of Appeal Kebbi State delivered on the 14th day of May, 2013 in Appeal No. SCA/KBS/GD/39/2014 which affirmed the judgment of the trial Court (Upper Sharia Court, Gwandu). Before the Upper Sharia Court Gwandu, Kebbi State of Nigeria, the Respondent instituted a suit against the Appellant vide Suit No. USC/GD/CV/F1/68 on 20/06/2014 seeking for the recovery of his grandmother’s farmland by name ALBARTA which was then in possession of the Appellant. The grounds upon which the Respondent claims before the trial Court was that, owing to the fact that the disputed farmland belong to his grandmother called ALBARTA, there was a settlement agreement that was reached between the Respondent and the Appellant before Magajin Garin Gwandu, wherein the Appellant agreed that the disputed farmland belong to the Respondent’s grandmother; that the Appellant should continue to hold the farmland upon the payment of tribute as was the practice with the Appellant’s father.
The Appellant, as an afterthought came back afterwards and purported to renege from the settlement agreement, and insisted that he should be given a share from the disputed farmland. The trial Upper Sharia Court Gwandu entered judgment in favour of the Respondent.
Dissatisfied, the Appellant appealed to Sharia Court of Appeal, Gwandu (the lower Court) which affirmed the judgment of the trial Court. Again dissatisfied the Appellant filed this Appeal. By a Notice of Appeal filed on 4th June, 2015 which was further amended pursuant to an order of this Court and was filed on 27/11/2017 wherein the Appellant attacked the judgment of the lower Court on six grounds thus:
GROUND 1
The Court below erred in law when it affirmed the decision of the Upper Sharia Court Gwandu without any credible/unimpeachable witness under Sharia Law.
PARTICULARS OF ERROR
1) Whereas according to Sharia law, the testimonies of all the claimant witnesses were impeached and were therefore incompetent and not credible.
2) Under Sharia law, the witnesses are not competent and eligible and therefore their testimony was impeached and unacceptable in law.
GROUND 2
The Court below erred in law when it held that the Plaintiff/Respondent’s witnesses were competent and credible witnesses under Shari’ah law.
PARTICULARS OF ERROR
1) The testimonies of the Plaintiff/Respondent’s witnesses were not credible in law
2) That the Appellant has impeached the testimonies of all the witnesses but the trial Court accepted their testimonies and the lower Court confirmed the decision.
GROUND 3
The Court erred in law when it deliberately refused to consider the issue of Hauzi raised by the Appellant in the Appeal before it.
PARTICULARS OF ERROR
1) The Appellant has claimed that he had been in possession of the farm which he inherited from his father who in turn inherited it from his own father, but the Court failed to consider that.
2) The trial Court as well as the Court below ought to have given the issue of Hauzi much more priority than the claim of the Respondent which was basically on the issue of Compromise/Settlement (Sulhu).
GROUND 4
The lower Court erred in law when it refused to address the Appeal of the Appellant and instead bedeviled itself into the retrial of the Appeal of the Appeal and without affording the Appellant fair hearing.
PARTICULARS OF ERROR
1) The lower Court did not take into consideration the grounds of Appeal of the Appellant particularly the additional grounds of Appeal.
2) The lower Court invited other witnesses it claimed to be competent but refused to allow the Appellant to challenge or impeach their testimony.
GROUND 5
The lower Court erred in law when it affirmed the decision of the trial Court which was based on purported Settlement/Compromise (Sulhu)
PARTICULARS OF ERROR
1) Whereas under Shari’ah law, Settlement/Compromise (Sulhu) is allowed and encouraged but not under any circumstances.
2) The Appellant has consistently denied having any Compromise/Settlement (Sulhu) with the Respondent, but the lower Court still went ahead to impose it on him.
3) That the Respondent did not have two unimpeachable/credible evidence to buttress his claim that the Appellant had any Compromise/Settlement with him.
4) That Sulhu/Compromise is like a confession, it has to be voluntarily and unequivocally made before it binds the parties.
GROUND 6
The Court below erred in law when it held that the Respondent had three witnesses who were competent and credible under the Shari’ah law.
PARTICULARS OF ERROR
1) The witnesses’ testimony was in sharp conflict and contradictory to each other that the trial Court ought not to have attached any weight to it.
2) Under Islamic law, where the testimonies of the witnesses are contradictory, the Court should not regard it
3) The testimonies of PW3 & 4 were glaringly contradictory, but the trial Court attached weight to it which occasioned miscarriage of justice.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
1) An order setting aside the judgment of the Lower Court for being incompetent.
ALTERNATIVELY
a) An order for retrial of the suit before another Court
b) Any other order or further order this honourable Court may direct in the circumstances.
In arguing the Appeal, learned Appellant’s counsel adopted the Appellant’s amended Brief of argument filed on 27/11/2017 in which he formulated three issues for determination thus:-
1) Whether there was a binding Settlement/Compromise (Sulhu) between the parties to which the lower Court could affirm the decision of the trial Court. Distilled from ground 5 of the amended Notice of Appeal
2) Whether the decision of the lower Court was right when it affirmed the decision of the trial Court which was not based on any competent or credible witness. Distilled from grounds 1, 2 and 6 of the amended Notice of Appeal.
3) Whether the lower Court was right when it held that prescription (Hauzi) does not apply in this case. Distilled from ground 3 of the amended Notice of Appeal.
On the first issue for determination, counsel submitted that: It is an established principle of Islamic law that, a settlement based upon a compromise is lawful according to all Muslim Jurists, but that does not mean under any circumstances.
He referred toALHAJI ISA V. ESTATE OF LATE ALHAJI ABDULMUMINU (2007) 3 S.L.R PART IV PAGE 162 AT 167- 168. According to him, page 1 of the Record of Appeal shows that the claimant was in Court, to seek for the enforcement of the compromise he purportedly reached with the Appellant in respect of the farmland, which the Respondent alleged to have inherited from his late grandmother.
Five witnesses testified for the Respondent, out of which the testimonies of the two witnesses were accepted, according to the judgment of the trial Court which was confirmed by the Court below. He said it is glaring that the Appellant has denied ever making a compromise with the Respondent, and that all the witnesses presented including the two accepted by the trial Court, and the three accepted by the lower Court did not testify according to the claim of the Respondent, and were equally impeached by the Appellant; but the lower Court went ahead to decide the case on the incompetent and impeached testimonies of the witnesses.
That in line with the above authorities, and the Record of Appeal before this Court, the lower Court was wrong to have affirmed the decision of the trial Court which was on the basis of compromise, as reflected at page 13 of the Record of Appeal where the Court held that: “Based on the foregoing case between Altine Hali Gwandu and Ibrahim Sayyadi Gwandu, I honourable Abdullahi Alhassan Argungu, Judge of Upper Shari’ah Court Gwandu, after considering all the issues that need to be considered I confirm this farm belonging to the Applicant grandmother (Albarta) to the Applicant Altine Hali Gwandu; and also based on the compromise made over this farm.”
He further submitted that it is clear from the Record of Appeal that, the above view held by the trial Court, was disputed even by the Respondent, when he stated at the lower Court that the Appellant has opted out of the compromise and that the claim of the claimant was not for confirmation of the compromise. According to counsel, there was no compromise between the parties upon which the lower Court based its decision.
On the second issue for determination as to whether the lower Court was right when it affirmed the decision of the trial Court which was not based on any competent or credible witness, counsel submitted that the trial Court heard five witnesses brought by the Respondent, that the trial Court after hearing the witnesses, and the objection of the Appellant, delivered its judgment and ordered the Appellant to hand over title in the farm in dispute to the Respondent.
That the trial Court accepted and acted on the testimonies of Alhaji Muh’d Dan Allami Gwandu and Noma Dandare Gwandu (PW 4 & 5); while the Court admitted that their testimonies were criticized and challenged but that the criticism was not significant under Islamic law, because their testimony is in accordance with the applicant’s claim.
That these testimonies of PW4 & 5 are contained at pages 6-9 of the Record of Appeal, and the claim of the Respondent is at page 1 of the record. He reproduced the claim of the Respondent and submitted that the testimonies of the two witnesses accepted and relied on by the trial Court and approved by the lower Court are at pages 6-9 of the Record. According to him from the testimonies, the following glaring differences could be seen.
1. That the Respondent did not claim from the trial Court, the confirmation of the Compromise/Sulhu but prays the Court to order the Appellant to give him back his grandmother’s farm. Contrary to the holding of the lower Court that the witnesses have established the claim of the Respondent.
2. None of the witnesses have testified that the Appellant has returned after two weeks before Magaji and said that he will not be holding any person’s property, that if he has any right he should be given.
3. The testimony of Noma Dandare is in sharp contradiction with the claim of the Respondent, because according to him there was no agreement between the parties even though the issue of the farm was discussed in his presence as reflected at page 9 lines 5-10 of the record.
Therefore, it was wrong according to counsel for the Court to have come to the conclusion that the testimony was in accordance with the claim and that the testimony was credible and not impeached. That the testimonies of PW4 & PW5 were not in accordance with the Respondents claim, and therefore incompetent to establish any case against the Appellant. He urged this Court to uphold this line of argument and resolve this issue in favour of the Appellant.
On the third issue for determination, he submitted that the Appellant has claimed that he has been in possession of the farmland which he inherited from his father who in turn inherited it from his own father. That the Respondent’s claim is also that he was seeking for the return of his grandmother’s farm, but the Court failed to consider that. He said for how long had the farm been in the possession of the Appellant? Is the Respondent even a competent person to seek for the reliefs? Was the Appellant given the opportunity to defend his claim of Hauzi? That the lower Court ought to have given the issue of Hauzi much more priority than the claim of the Respondent which was basically on the issue of Compromise/Sulhu. That it was not in dispute that the Appellant was in possession of the farmland for many years, when the Respondent laid his claim before the trial Court as is reflected at page 1 of the Record of Appeal.
He further submitted that at the lower Court and the trial Court, when the issue of Hauzi (prescription) became an issue, the proper thing for the Courts to do was to hear evidence from the Appellant on the issue, and establish whether or not the Appellant was indeed in an undisputed possession of the property for many years, when he said he inherited it from his father. But the lower Court left it unresolved; as such its judgment could not stand. He urged this Court to so hold, He placed reliance on HAKIMI BOYI UMMARU V. AISHA BAKOSHI (2006) 3 S.L.R PART I, PAGE 80 AT 84 and the Book BAHJA vol.1 page 256.
That the Appellant was entitled to take an oath of affirmation because possession in Islamic law, is regarded as having one witness and taking an oath to have judgment in one’s favour. He refers to HAKIMI BOYI V. AISHA BAKOSHI (Supra) and MUHAMMAD A. AIDAMI V. BUKAR KUSUM (2007) 3 S.L.R (PART IV) PAGE 208 AT 218. According to counsel the issue of Hauzi raised by the Appellant was so fundamental that failure to resolve it has seriously affected the decision of the lower Court. He urged the Court to so hold and set aside the decision of the lower Court.
In his response, learned Respondent?s Counsel submitted that the Respondent most respectfully adopt the issues formulated for the determination of this Honourable Court by the Appellant.
On the first issue for determination, he submitted that this is an Appeal in which the personal law binding the parties is Islamic Law. There is no gain saying the fact therefore that the system of law under Shariah law and the common law is not the same. While considering an issue of proof and or procedure he submitted, it has to be recognized that the Court process or procedure in the two systems are not the same. He referred to the cases of GARBA SARKIN ASKI V. SARKlN YAKI ALU (1998) LPELR 5663 and BARAYA V.S BELEL (1999) 1 NWLR (PT 585) P. 105 AT 113; SIDI VS SHA’ABAN (1992) 4 NWLR (PT 233) P. 113 AT 118.
That at page 1 of the Record of Appeal, the claims of the Respondent before the Upper Sharia Court Gwandu Kebbi State (the trial Court) is for the recovery of his grandmother’s farm by name ALBARTA which was then in possession of the Appellant. That the grounds upon which the claims of the Respondent were founded at the trial Court, was that owing to the fact that the disputed farmland belong to his grandmother called ALBARTA, there was a settlement agreement that was reached between the Respondent and the Appellant before Magajin Garin Gwandu, wherein the Appellant agreed that the disputed farmland belong to the Respondent’s grandmother, and that the Appellant should continue to hold the farmland upon the payments of tributes as was the practice with the Appellant’s father.
Having reached the above agreement according to counsel, and which agreement was witnessed by Muhd Dan Allami (PW4) and Noma Dandare (PW5) whose evidence was never impeached by the Appellant as reflected at pages 6, 7 and 9 of the Record of Appeal, the above notwithstanding he further submitted, and after reaching the above settlement agreement, the Appellant as an afterthought, came back and purports to renege from the settlement agreement and insisted that he should instead be given a share from the disputed farmland. That instructively, Muhd Dan Allami (PW4) and Noma Dandare (PW5) at pages 6 – 9 of the Record of Appeal gave uncontradicted evidence relating to the fact of the settlement agreement.
That they both alluded to the fact that the Appellant agreed to the settlement, the gamut of which is that the Respondent indeed inherited the farmland from his grandmother called ALBARTA; and that the Appellant shall continue to be in possession subject to the payment of tributes to the Respondent, as was the practice with the Appellant’s father. That this uncontroverted evidence of PW4 & PW5 relating to the settlement was rightly relied upon by the lower Court in finding in favour of the Respondent. He referred to SAFETI & ORS. V. SAFETI & ANOR. (2006) LPELR-7579(CA) at Pages15-16 Paragraphs G-C.
According to counsel, the Appellant having accepted the settlement made cannot come back afterwards to renege from the agreement as sane and male adult. That under Islamic law, once parties agree on terms of settlement or settlement agreements as the case may be, they will not be allowed to renege from same. He referred to the bookTUHFATUL – HUKKAMI Vol. 1 Page 141 Verse 322. That this prohibition equally applies even where there is unanimous consensus by the parties that it should be annulled.
According to counsel, under Islamic law, settlement agreement is recognized and sanctioned. That there is nothing shown by the Appellant that would warrant the conclusion reached by the Court below to be set aside. It is based on sound reason and logic. He submitted that under Islamic law, a judgment can only be set aside under the following circumstances:
(1) Where it is in conflict with any provision of the Quran.
(2) Where it is in conflict with the provision of any authentic Tradition of the Prophet (PBUH).
(3) Where it is in direct conflict with ljma.
(4) Where it conflicts with Qiyas.
(5) Where it is against popular view of the official Mazhab applicable in the area of jurisdiction or against sound reasoning.
(6) Where the Judge lacks jurisdiction.
(7) Where it was obtained under fraud, deceit etc.
On the other hand, where the decision of a Court operating Islamic Law principles was based on cogent, concrete and unimpeached evidence and the decision was based on known Shariah principles, such decision has to be implemented. That where a judge has arrived at a just decision, there shall be no doubt about executing it, he also referred to IHKAMUL AHKAM, Commentary on TUHFAH, page 23 and urged this Court to resolve this issue in favour of the Respondent and against the Appellant.
On issue number 2 for determination, counsel submitted on behalf of the Respondent, that all the arguments put forward by the Appellant in his brief of argument, goes contrary to the Record of Appeal. That the trite position of the law is that this Honourable Court is bound by the Record of Appeal.
That the contention of the Appellant is that the evidence relied upon by the lower Court, that is the evidence of PW4 & PW5 were contradictory, cannot find support from the Record of Appeal. According to counsel at pages 6 – 9 of the records the evidence of PW4 & PW5 can be found and it supports the claims of the Respondent at the trial Court. That the Appellant at page 7 of his brief had made heavy weather that in the claims of the Respondent at the trial Court, he never founded his claim on settlement (Sulhu) but on inheritance.
However counsel submitted that, at page 1 of the Record of Appeal, the claims of the Respondent at the trial Court, and the facts presented shows that the Respondent inherited the disputed farmland from his grandmother called ALBARTA, and that subsequently, there was a settlement agreement which after two weeks, the Appellant purportedly reneged.
According to counsel, the position of Islamic Law is to the effect that once parties agree on terms of settlement or settlement agreements as the case may be, none of the parties will be allowed to renege from it. He placed reliance on TUHFATULHUKKAM Vol. 1, Page 141, Verse 322. This prohibition he further submitted, equally applies even where there is a unanimous agreement by parties that it should be annulled.
On the contention of the Appellant that none of the witnesses to the Respondent testified to the effect that the Appellant came back and purports to renege from the settlement agreement, he referred to pages 6 – 9 of the Record of Appeal and submitted that the Appellant came back and renege from the settlement agreement.
According to counsel, there was therefore no contradictory evidence between the evidence of PW4 & PW5 on the record. That the Court below did not only rely on the evidence of PW4 & PW5 but also on the evidence of PW3 which the lower Court declared it accepted as the truth. He also referred to page 21 lines 5 – 9 of the Record of Appeal where the lower Court held thus: … ‘From these 5 witnesses, 3 of the witnesses gave testimony that we accepted. Abubakar Zaki testified that the farm belonged to ALBARTA (grandmother of Altine) his testimony was not impeached for he is not the person marrying the elder sister/daughter of Altine…’
Counsel further submitted that the lower Court while rehearing the entire appeal before it for the purposes of determining the counter claims of the Appellant, which the Appellant argued was not considered at the trial Court, it found as a matter of fact that the 3 witnesses brought by the Appellant before the Court were not credible, while the 3 witnesses of the Respondent before the lower Court were found to be credible as reflected at pages 22-23 of the Record of Appeal.
That in the absence of any evidence from the Appellant to the contrary, the lower Court cannot enter judgment in his favour. He referred to the case of SAFETI & ORS. V. SAFETI & ANOR (2006) LPELR-7579(CA) and urged the Court to resolve the second issue in favour of the Respondent.
On the third issue for determination, counsel submitted that on the doctrine of Hauzi (Prescription) raised by the Appellant in his brief of argument, when the Respondent instituted the suit before the trial Upper Shariah Court Gwandu against the Appellant, seeking for the recovery of his grandmother’s farmland in possession of the Appellant; the Appellant denied the claims of the Respondent, and counter claimed that he inherited the disputed farmland from his father called Sayyadi, who in turn inherited same from the Appellant’s grandfather called Umaru Bawa; as reflected at page 2 of the Record of Appeal.
He said that while counter claiming at the trial Court, it was never the contention of the Appellant that he came into possession of the land by way of Hauzi; but rather that he also inherited the disputed farmland from his father called Sayyadi, who in turn inherited from the appellant’s grandfather called Umaru Bawa. According to counsel, 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 title by Hauzi (Prescription) against any person who claims to be the true or original owner of such land, who stood by without taking any action to reclaim his land during that period. Put more clearly counsel further submitted, the law is that other person who sees somebody in possession of his or her property, and claiming and using same as his own over a long period without any objection, loses his ownership and that other person in possession becomes the owner.
He referred to the book BAHJA VOL. 11 P. 256; MAYYARA VOL 11, 3 Page 236, Ruxton, Summary and Translation of MUKHTASAR KHALIL P. 309 paragraph 1698, and the cases of BABA V. ARUWA (1986) 5 NWLR (Pt. 44) 774-776 and HADA V MALUMFASHI (1993) 7 NWLR (Pt. 303) Pg 1 at Pg 20.
He said the above statement of Islamic Law is a general rule; but permits of some exceptions. That 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 he said was succinctly stated in the case of HADA v. MALUMFASHI (1993) 7 NWLR (Pt. 303) Page at pages 16- 19 Paragraphs F – A.
From the evidence on record according to counsel, there is evidence showing that the disputed farmland belong to the Grandmother of the Respondent, and that the father of the Appellant had been paying tributes, and there was consequently a settlement agreement in which it was agreed that the appellant will be in possession of the farmland but subject to the payments of tribute to the Respondent as evidence of his ownership. That this means that the possession hitherto enjoined by both the Appellant’s father and the Appellant, is that of a loan of the disputed farmland. Counsel submitted that the doctrine of Hauzi will not apply in such a situation. He referred to AWAKI V. UMARU (2007) AFWLR (Part 387) 975 at 983 Paragraphs H – A; and GULMA V. BAHAGO (1993) 1 NWLR (Pt 272) Pg 766 at 774. He urged the Court to resolve this issue against the Appellant and in favour of the Respondent and dismiss the Appeal.
DETERMINATION OF THE APPEAL
I will determine this Appeal on the three issues formulated by the appellant which the Respondent counsel adopted. The first issue for determination is whether there was a binding settlement/compromise (Sulhu) between the parties upon which the lower Court affirmed the decision of the trial Court. It was the submission of the Appellant’s counsel that although settlement based on compromise is lawful and allowed according to all Muslim jurists, but it does not mean under every circumstances. According to him, although page 1 of the Record of Appeal shows that the Respondent appeared before the trial Court, seeking for the enforcement of the compromise he purportedly reached with the Appellant in respect of the farmland, which the Respondent alleged to have inherited from his dead grandmother, and two of the five witnesses who testified for the Respondent were accepted by the trial Court, the record shows that the Appellant denied ever making the compromise.
That even the witnesses accepted by the Court did not testify according to the claim of the Respondent and were equally impeached by the Appellant. That it is clear from the record of Appeal that even the Respondent said that the Appellant has opted out of the compromise. On the side of the Respondent, it was argued that there was a settlement agreement reached between the Respondent and the Appellant before Magajin Garin Gwandu, wherein the Appellant should continue to hold the farmland upon the payments of tributes as was the practice with the Appellants father. That the agreement was witnessed by Muhammad Dan Allami (PW4) and Noma Dandarre (PW5) and whose evidence was not impeached.
Let me at this stage approach the Record of Appeal in order to ascertain whether there was any settlement agreement or Sulhu between the Appellant and the Respondent before the Magajin Garin Gwandu witnessed by PW4 & PW5 or not; and whether the witnesses accepted by the trial Court Gwandu testified in line with the claim of the Respondent, and whether they were impeached by the Appellant or not. At page 1 of the Record of Appeal the statement of claim of the Respondent before the trial Upper Shari’a Court Gwandu reads:
“I Altine Hali Gwandu is suing Ibrahim Sayyadi over the issue of my grandmother (ALBARTA) farm which is in his (Ibrahim) possession. We made compromise before the Magajin Garin Gwandu and he agreed that it is her farm. It was also agreed that he should continue holding possession of the farm as was the practice with his father. After two weeks, he returned before the Magaji and said he will not be holding any body’s property. That if he has any right therefrom he should be given. It was agreed that he will be given. But after a week, he returned and told the Magaji that he revokes all the agreement made with him. That is why I am suing him.”
The evidence of PW4 Dan Allami is at pages 6 – 7 of the Record of Appeal and it reads:-
Court: – Tell the Court what you know
Answer: – What I know is a problem took me to the house of Magajin Garin Gwandu Attahiru. I met Altine and Ibrahim making statements over this farm. Then the late Sarkin Malami said to Ibrahim, the issue belong to the grandmother of Altine (that is the issue in dispute). Then Ibrahim wanted to argue but the Sarkin Malamai told him where is your father? He is dead, where is your mother? She is also dead. As such there is no any other relationshipyou know I don’t want this issue to be taken from you?.you should contemplate with your brother over this. Instantly, they said they agreed and Magaji said to them you agree? The Magaji said to them I reconcile not hold a trial. He said I will write in case of unexpected. The Magaji said you Altine you will not take from Ibrahim as was the practice.
The Respondent I observed from the record, told the trial Court that if at all he agreed he will not have gone to Court. He further stated at page 7 of the record that even the compromise made was not with them he went with. It is with Adamu, as such they disagreed. PW5 stated at page 7 of the Record of Appeal that:
” What I know by Allah is Ibrahim reported Adamu and Haruna before Magaji Hakimi. He asked did I know Ibrahim, Adamu and Haruna? He said I should call them for him tomorrow at 9:00am and should come together with them. I went and informed them; they said they knew why they were invited. Adamu told Altine that Ibrahim reported them before the Magaji, as such if he has any claim he should be present. He said he has, the Sarkin Malamai was present when we were at Magaji’s house with them; they said they left his father’s farm for him.
Then Altine said the issue belongs to his grandmother. Then Magaji said to Altine for the sake of Allah does the issue belong to your grandmother? He replied that really the issue belong to her, she entrusted it to the grandfather of Ibrahim because he was a great Mallam. Then the Magaji asked the Sarkin Malamai for the sake of Allah is what Altine said true. The Sarkin Malamai said it is true. The Magaji turned to me and said I am his witness, have I heard? I replied I heard. He said to Altine, this boy is now your relation and you are his relation as such you should compromise yourselves. Altine said the issue is with Ibrahim they will not take them over and that he should give them a portion of whatever they got as evidence of ownership.
Then Ibrahim said if he has any right with them he should be granted with it, that no one will be a keeperthe Sarkin Malamai said since there is a compromise let us pray?He then went to Magaji and said he disagree with the compromise made. The Magaji said to him you should go and tell Sarkin Noma and the Sarkin Malamaiwe gathered, the Magaji said Ibrahim people have gathered you should tell them what you said to me. Ibrahim said to us the compromise made does not exist. That is what I know.”
When the trial Upper Shari’ah Court asked the Appellant if he agreed with the evidence of PW 5 he replied he disagreed and further stated that his criticism is the witness does not know the issue they were disputing over. The Respondent’s reply from the record reads: – “I disagree with the compromise made.”
From the claim of the Respondent (who was the Applicant/Claimant) before the trial Court, he was claiming from the Appellant possession of his grandmother’s farmland, which was in possession of the Respondent. That both the Respondent and the Appellant reached a compromise before Magajin Garin Gwandu that the Respondent should continue holding possession of the farmland as was the practice with his father. That after two weeks the Respondent went back to Magajin Gari and revoked the compromise.
I have clearly studied the evidence of PW4 and PW5 as reproduced in this Judgment and believe that it is in line with the claim of the Respondent and I so hold. On the issue of whether there was a binding settlement agreement/compromise (Sulhu) between the Respondent and the Appellant to which the trial Court and the lower Court could rely on in their Judgments, PW4 and PW5 gave evidence (as I reproduced above) before the trial Court that there was a settlement agreement between the Respondent and the Appellant before the Magajin Garin Gwandu. At page 7 of the record when the trial Court asked the Respondent whether he agreed with the evidence of PW4 and if he had any criticism to it, he replied:- “I disagree..my criticism is even the compromise made it is not with them that we went with, it is with Adamu”
From the above answer given by the Respondent it is crystal clear that the Respondent did not say there was no compromise mad he agreed it was made. Furthermore the record shows that the Appellant after reaching the compromise as an afterthought went back to Magajin Gari in the presence of PW4 and PW5 and said it does not exist. At page 9 of the Record PW5 stated that:- “Ibrahim said to us the compromise made does not exist.”
I have carefully observed that PW4 and PW5 gave uncontradicted evidence relating to fact there was a compromise or settlement agreement (Sulhu) between the Respondent and the Appellant. I also observed from pages 7 and 9 of the Record of Appeal that the Respondent was not able to impeach the testimonies of the witnesses. The lower Court was therefore right when it relied upon the uncontroverted evidence of PW4 & 5 as contained in the finding and Judgment of the trial Court in finding in favour of the Respondent.
The finding and judgment of the trial Court which is at pages 10 – 13 of the Record of Appeal reads: “The Court issued a hearing notice to the Respondent and when he was present before the Court, the Court read the statement of claim to him. However he denies the claim saying it is not true.
Therefore the Court enjoins the applicant to present witnesses over his claim as is provided by principles of Islamic law from the book Ihkamul Ahkam page 12 as follows:
Translation:- “A claimant will be enjoined to present witnesses to prove his claim in any issue.”
As such, the applicant, Altine Hali Gwandu presented 5 witnesses. They are:-
1) Adamu Liman Gwandu
2) Haruna Liman Gwandu
3) Abubakar Zaki Gwandu
4) Alh. Muhd Dan Allami Gwandu
5) Noma Dandare
Each of the witnesses testified as to what he knows. The respondent made criticism against each of them. The Court perused the criticism made against each of them and held thus: – “PW1 Adamu Liman Gwandu and PW2 Haruna Liman Gwandu were criticized on the ground that they are his opponents over this case, they held a session with them before the Magaji. The witnesses confirmed this as true and that the applicant is actually their relation. Based on this criticism against them the Court did not consider their testimonies. This is provided from the book THAMARUDDANI Page 510 as follows:-
Translation:- “The testimony of an opponent is not permissible against an opponent.”
As such the Court did not consider the testimony of Adamu Liman and Haruna Liman. The testimony of PW3 was also criticized with being in law to the applicant. The witness also confirmed this as true. Therefore the Court did not also consider his testimony, based on this criticism. This is also as enshrined in the following authority: – “The testimony of an in law is not permissible.”
Similarly, the witnesses Alhaji Muhammad Dan Allami Gwandu and Noma Dandare Gwandu were also criticized. But the criticism against them is not significant under Islamic law. As such the Court considered that their testimonies is the same with the applicant?s claim. See the book SIRAJUS SALIK Page 199 as follows:-
Translation:- “When the witness invited gives testimony that is the same with the claim, then a decision will be made against the respondent.”
As such the Court considers the testimonies of these witnesses.
The Judgment of the trial Court at page 13 of the record reads:- “Based on the foregoing case between Altine Hali Gwandu and Ibrahim Sayyadi Gwandu, I Alh. Abdullahi Alhassan Argungu, Judge NUSC Gwandu after considering all the necessary issues that need to be considered, I confirmed this farm belonging to the Applicant’s grandmother (Albarta) belongs to the Applicant Altine Hali Gwandu. Also based on the compromise made over the farm. As from today 1/09/2014 based on the testimonies of the two credible witnesses presented. This is in line with the following authority from the book TUHFATUL HUKKAMI Vol. 1 Page 141 Verse 322.”
Translation: – “It is not permissible to annul an agreement made even if the parties agreed to revoke it, it should be enforced on them.”
As I stated earlier in this Judgment, the lower Court affirmed the judgment of the trial Court. This can be seen at page 23 of the record. It reads:-
‘….but the Respondent, Altine Hali Gwandu has 3 credible witnesses that were not impeached. As such any right which a person is seeking will be confirmed to him once he has 2 witnesses or a confession from his opponent.
Based on the foregoing we at the Shari’ah Court of Appeal have affirmed the decision of USC Gwandu. The Court has confirmed the disputing farm to Altine Hali Gwandu.’
In the instant case, after a thorough appraisal of the decision of the lower Court, I am of the humble view that it was based on cogent, concrete and unimpeached evidence and based on known Shari’ah principles. I placed reliance on the book TUHFATUL HUKKAM at Page 23 where it is stated that:- ‘When the Judge has arrived at a just decision, there shall be no doubt as to executing it.’
It is important to note that under Islamic law dispensation generally, Judgment of a Court of law is set aside under the following circumstances:-
1) Where it is in conflict with any provision of the Holy Qur’an.
2) Where it is in conflict with the provision of an authentic Tradition of the Holy Prophet Muhammad (PBUH).
3) Where it is in direct conflict with Ijma (Consensus of opinion of Muslim Jurists).
4) Where it conflicts with Qiyas (Deduction/Analogy).
5) Where it is against popular view of the official Mazhab (School of thought) applicable in the area of jurisdiction or against sound reasoning.
6) Where the Judge lacks jurisdiction.
7) Where it was obtained under fraud, deceit etc. See further on this the case of SAFETI V. SAFETI (2007) 2 NWLR Part 1017 Page 56 at Pp 68-69 Paragraphs H-A.
In the instant case, none of the above circumstances existed to warrant the setting aside the Judgment of the lower Court and I so hold. The first two issues for determination are therefore resolved in favour of the Respondent and against the Appellant.
The third issue for determination is:-
“Whether the lower Court was right when it held that prescription (Hauzi) does not apply in this case.”
It was argued on behalf of the Appellant that the Appellant has been in possession of the farmland which he inherited from his father who in turn inherited it from his father, and the Respondent’s claim is also that he was seeking for the return of his grandmothers’ farm, but the lower Court failed to consider that. Counsel referred to HAKIMI BOYI UMMARU V. AISHA BAKOSHI (2006) 3 S.L.R. Part 1 Page 80 at 84.
He further submitted that the issue of Hauzi (Prescription) raised by the Appellant was so fundamental that the failure to resolve it seriously affected the decision of the lower Court. On the side of the Respondent, it was argued that when the claim of the Respondent was read to the Appellant at the trial Court, he did not state that he possesses the farmland by way of (Prescription) Hauzi but by inheritance from his father Umaru Bawa as is reflected at page 2 of the record. When the Appellant raised the issue of inheritance as his counterclaim, he alleged that the trial Court did not consider it by its failure to allow him prove the counterclaim.
At pages 23 – 24 of the Record of Appeal, the lower Court while re-hearing the Appeal for the purposes of determining the counterclaim of the Appellant, found as a matter of fact that the two witnesses who testified for the Appellant were not credible, while the three witnesses brought by the Respondent were credible. The record reads:- “Regarding the witnesses presented before this Court by Ibrahim Sayyadi. These witnesses were not credible because A. Dandare testified that Sayyadi lent this farm to him for 12 years and he used to give him the farm dues. While Malami Dan Azumi testified that Muhd Sayyadi gave him a part of this farm and he spent 10 years working. Therefore since Ibrahim Sayyadi gave this farm to them to work for years, there is an element of supporting Ibrahim Sayyadi due to the benefit they are accruing from the farm. See FAWAKIHUDDAWANI Page 220 and ASHALUL MADARIK Vol. 3 Page 213.
The third witness Abubakar Na Iya testified on working in the farm only. He did not say that the farm belong to Ibrahim Sayyadi. As such his testimony is not acceptable based on the authority from the book of HADDAB Vol. 6 Page 157.
But the Respondent Altine Hali Gwandu has 3 credible witnesses that were not impeached. As such any right which a person is seeking will be confirmed to him once he has 3 witnesses or a confession from his opponent. See the book TABSIRATUL HUKKAM. Based on the foregoing we at the Shari’ah Court of Appeal Gwandu have affirmed the decision of Upper Shari’ah Court Gwandu, The Court has confirmed the disputing farm to Altine Hali Gwandu.
In view of all the above therefore I hold that in the absence of any credible evidence from the Appellant, the lower Court cannot enter judgment in favour of the Appellant. I place reliance onSAFETI V. SAFETI (Supra) where it was held that: – ‘It is clear from the record that the appellants called two witnesses who were able to establish to the Court the fact that the houses were given to the appellants by their deceased father. None of the respondents was able to successfully impeach the evidence given by their witnesses. The trite position of Islamic law is that a Court of law is bound to act on this type of claim on the evidence adduced by the plaintiff. It is thus prohibited for a judge to deliver his judgment when he has no evidence placed before him through any of the known forms of testimony/admission. See Ihkamul Ahkam pages 13-14.’
After a thorough appraisal of the Notice of Appeal, the Record of Appeal and the arguments of counsel on both sides, I find that this Appeal is unmeritorious it is accordingly dismissed. I affirm the decision of the Kebbi Sharia Court of Appeal delivered in Suit No. SCA/KBS GD/38/2014.
HUSSEIN MUKHTAR, J.C.A.: A claim charged to a deceased Muslim’s Estate, under Islamic law, saddles the claimant to produce credible evidence to establish his claim and further to swear to an oath of judgment [Yamina Qada’il] to be entitled to judgment in his favour. Thus, where the claimant of a right from a deceased Muslim’s Estate fails to lead credible evidence in respect of the claim, the claim fails and ought to be dismissed.
For the above and the more detailed reasons in the judgment of my learned brother Abdulllahi Mahmoud Bayero, JCA with which I totally agree, the appeal is clearly bereft of substance. It is accordingly dismissed.
I subscribe to the consequential orders as made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal as completely lacking in merit. I abide by all consequential orders made in this Appeal.
Appearances:
M. A. SamboFor Appellant(s)
Ibrahim AbdullahiFor Respondent(s)
